{"document_id": "1971_3_282_297_EN", "year": 1971, "text": "ALLEN BERRY & CO. (P) LTD.\n\nUNION OF INDIA, NEW DELHI.\n\nJanuary 5, 1971\n\n(J. M. SHELAT,. C. A. VAIDIALINGAM AND P. JAGANMOHAN\n\nREDDY, JJ.J\n\nArbitration Act ( 10 of 1940), s. 30-Setting aside award---Error apparent on the face ofaward-What is.\n\nThe Director General of Disposals, through corrspoliedly incorporated the con•ract or •a clause in it whicheve1 be the case.\n\nBu• a mere general reference {o the contract in the award is not to be hld a.ii incoroorating it. The-urinciole of reading contracts\n\nor o•her documents into the' a.wad is not to b~ encoura \"d or extende1. • (see Rrzhu R\"m v.\n\nN, onhema/ & n • ., r•) The rule thus is that as the oar•ies choose their own arbitrator to be the 'c judge in 'tlie disnute between •hem, tiley cannot. when the .award is good on the facP. of it, object to th~ deci•in.-, either unon the\n\nlaw or the facts. Therefore. even .whel) \"llnarhitra!or commit, a mis•\"lre either in law or in fact in determining th\" m\"\"ers referred to him, but such mistake does not appear on the face of the\n\n(1) [11 '9?3, AC.3'5 (2)(19051 1 KB. 18i.\n\n(3) [19331 A.C. 592.\n\n(4) [1962]2 All E.R. 53, 62\n\n(5) C.A. N0.107of1966, Decided on 5-12-1968.\n\nALLEN BERRY & CO, v. UNION (She/at, J.) 289\n\naward. or in a document appended to or incorporated in it so as to form part of it, the award will neither be reJ; I1itted nor set aside notwithstanding the mistake.\n\nIn the light of the principle above stated, the first question calling for determination is, is there an error apparent on the award, in the sense that the umpire misconstrued the contracts of sale inasmuch as though those contracts were contained in sale-notes as well as in several letters, he considered the sale-notes only as containing the contracts of sale disregarding the correspondence which had taken place between the company and the Director-General, Disposals and his officers ? Such a question would undoubtedly be one of law.\n\nBut the disputes referred to the umpire contained disputes both of fact and law. Ordinarily the decision of the umpire, even though it be on a question of law, would be binding on the parties.\n\nThe court would only interfere if the case falls within the exceptions mentioned by Williams, J. in Hodgkinson v. Fernie( 1) and reaffirmed by Diplock L. J., in Giacomo Costa Fu Andrea v. British Italian Trading Co. Ltd.(').\n\nTherwere in all three separate sales to the appellant-compaay, whicl)., -according to the respondents were incorporated in sale- 1\\Ptts Nos. 160, 161 and 197.\n\nBefore the sale-note 160 wa~ issued on July 11, 1946, it is a fact !hat the company had written a letter dated July 10, 1946 which was also endorsed by t'W officers of the Director-General, Disposals. The lette.r containe~ three clauses, the first of which stated that \"M/s. Allen Berry will buy the Moran Vehicles Depot 'as is wi)ere is' for Rs. 1,80,00,000/\". The two other clauses provided! the manner and time of payment of the sale price. But the letten commenced with the following words :\n\n\"Pending detailed record of terms tomorrow the following are the broad heads of agreement, which will form the ])as is of sale of surplus vehicles : \".\n\nThe next day, i.e., July 11, 1946, the Department issued salenote 160, which in .clear terms stated that what was purchased were \"all vehicles and trailers lying in Moran Depot\" which meant' that the vehicles sold were only those that W'Cre ctually lying in that depot on July 11, 1946, and not those outside it or those bome on the records of that depot, as contended by\n\nth~ company.\n\nIt, however, appears from the judgment of the Trial Court (para 206) that on receipt of sale-note 160, the company wrote a letter on July 11, 1946 in which it contended that \"We have purchased the entire vehicle depoLof Moran\"\n\n(I) [1857} 3 C.B. (N.S. 189,202. 57)\n\n(2) [I 962] 2 All ER:SJ, 68. 5-807SupCl/71\n\nSUPREME COURT REPORT~\n\n[1971 J3 S.C.R.\n\nit appears that in view of this difference of opinion, a meeting A -of representatives of the parties was held on July 23, 1946, the minutes of which, as recorded by the Assam Controller, U.S.AS.S., read as follows : ·\n\n\"(2)(a) The vehicles and trailers sold to Messrs.\n\nAllen Berry and Co. Ltd., are deemed to B include all vehicles which were or should have been held in Moran Depot on the 10th July, also those which have been issued on a Memorandum Receipt as follows :-\n\n(i) To' the Americans, left behind by them in various camps and depots and not yet turned in by us.\n\n(ii) Vehicles issued on Mem9randum Receipt to military units assisting the U.S.A.S.S: Organisation.\n\n(iii) Any surplus vehicles originally allotted to U.S.A.S.S. Units-for operational purposes and now no longer required by them.\"\n\nQn September 17, 1946, a secraphone message was sent from New Delhi to Calcutta which stated \"We have sold U.S. Army\n\nsurplus vehicles presumed to be borne on Moran list, that is those actually in Moran Vehicle Depot or those that were intended to be moved to that depot, which was meant' to be parking depot for surplus U.S. vehicles in Assam area.\" On September 26, 1946, the Director-General, Disposals, wrote to the company that \"The vehicles sold to you in Assam are those U.S. Army surplus vehicles actually in Moran Vehicle Depot or those that were intended to be moved to Moran Vehicle Depot.\n\nAny mobile engineering equipment, such as mobile cranes, tracked tractors are excluded from the sale to you.\" On December I 0, 1946, the Controller issued a release order in respect of :\n\n1. All vehicles and trailers lying, in Moran Depot on\n\n10th July 1946 includinf,; all United States Army Surplus Stores, excl!Jding land .and buildings lying within Moran Depot and transferred to the Government Qf .India from the Government of the United -States.\n\n2. Vehicles in operational use in Calcutta and Assam as and when no longer required by the U.S.A.S.S.\n\nOrganis.ation.\"\n\n...\n\nALLEN BERRY & co. v. UNION (She/at, !.) 291\n\nThe question raised by counsel is that the umpire failed to consider all these documents while considering the scope and content of the contract of sale and relied on only sale-note No. 160, dated July 11, 1946, that the contract was not contained in the said note 160 alone, and that therefore, he misconstrued the contract, and that that misconstruction, which is a point of law, is apparent on the face of the award, as it was made the very basis of the award.\n\nThe first three issues raised by the umpire were :\n\n( 1) whether the appellant was entitled to prove that any vehicles, stores etc. other than those men- C tioned in the sale-notes were sold to it;\n\n(2) whether the Government was bound by the clarifications, representation, explanations or assurances made or given by any officer or officers of the Departm, ent regarding the subjectmatter of the contracts of sale except those D necessarily implicit in the sale-notes; and\n\n( 3) whether the Government sold any vehicles except those lying in Moran Depot on July 11, 1946, or those intended to be moved t!rereto.\n\nThe dispute between the parties, thus, clearly was that whereas the company claimed that the sale was of all vehicles borne on the records of Moran Depot, irrespective -of whether they were actually lying there on July 11, 1946 or not, the Government claimed that the company was entitled to those actually lying in the Depot.\n\nAccording to the respondents, the contract of sale was to be found in the sale-note, and therefore, any subsequent explanations or assurances given by any officer or officers of the Department could not vary or alter the terms of the contract.\n\nThese expanations and assurances were given only to remove the misunderstanding of the company over the question of the' scope and extent of the sale made to it.\n\nThe umpire set out part of the sale-notes 160 and 197 in the award and then observed :\n\n\"the language used in these sale letters is to my mind perfectly clear, explicit anJ unambiguous and exclues the possibility of any vehicls, trailers o.r stores J:ymg on the dates in question outside the Iocaltons specified in the sale letters having been included in the two .sales.\n\nThe 'contention that they in fact include all vehicular stores in Assam in one case and in Bengal area in the other has been made all seriousness and a good deal\n\nof evidence both oral and documentary has been produced in support of or against such contention. The point has also been argued at great lengt!l by learned counsel for the parties. 1. have given the whole matter my most serious and earnest consideration and my view is that apart from the language of the two saledeeds being against such a contention, the evidence too considered as a whole does not support it. Accordingly, I hold that the stores sold to the claimants in the case of Assam were those actually located in Moran Depot on July 10, 1946 and in the case of Bengal those actually located in Jodhpur and other depots specified in the sale letter on July 31, 1946.\"\n\nHe next held :\n\n\"The alleged clarifications or representations made or explantions or assurances given by any officer or officers of the Disposals Department either verbally or in writing have been very carefully examined by me and I am of opinion that neither are they, considered as whole, capable of the interpretation sought to be put upon them by the claimants nor are the respondems bound by them. They are not in accordance with law and do :not amount to legal contracts binding the respondents.\" Thesepassages clearly show that the umpire had considered, besides the sale-notes, the oral and documentary evidence led by the parties as also the contentions urged on and as regards them by counsel for the company. It is impossible, therefore, to uphold the contention that the. various documents, i.e., the letter of the company dated July 10, 1946, the subsequent correspondence, minutes of the meetings which too place after the salenote 160 was issued etc. were not taken into consideration by the umpire whild coming to his conclusion as to what actually was sold to the company.\n\nThe dispute, amongst other disputes, referred to the umpire and crystallized by him in the form of issues on the pleadings of the parties involved, as already stated, the question first as to what was sold, and secondly, arising out of that, the questi9n whether besides the said sale-notes 160 and 197, the subsequent clarifications or explanations were binding on the Govefllment.\n\nThes.e \\\\'.ei:e,. no doubt, questions partly of fact and partly of la:W.\n\nBut questions 'both of. fact and law were referred to the umpire and prima facie his findirigs on them would bind the parties unless, as explained earlier, the umpire has laid down any legal proposition, such as a construction which is made the basis of the award and is on the face of the award an error.\n\nALLEN BERRY & CO. V. UNION (She/at, /.) 293\n\nThe point is, is this such a case ? True it is that this is not a case whe_re a question of law is specifically referred to. It is clearly a case falling in the category of cases, like Ka/anton v.\n\nDuff Development Co. Ltd.( 1) wherein deciding the questions referred to him the umpire has to decide a point of law. ln doing . so, the umpire, no doubt, laid down the legal propsition that the clarifioations or assurances given subsequent to the dates of the said sale-notes by an officer or officers of the department were not binding on the respondents nor could they affect the scope of the sales.\n\nThat anwer the umpire was entitled to give.\n\nBut the fact that he answered a legal point does not mean that he has incorporated into the award or made part of the award a docu- .iuent or documents, the construction of which, right or wrong, is the basis of the award. The error, if any, in such a case cannot be said to be an error apparent on the face of the award entitling the court to consider the various documents placed in evidence before the umpire but not incorporated in the award so as to form . part of it and then to make a search if they have been misconstrued by him.\n\nThis, in our understanding, is the correct principle emerging from the decisions which counsel placed before us.\n\nIn any event, this is not a case where the umpire, in the words of Lord Dunedin, \"tied himself down to a legal proposi-_\n\ntion\" which on the face of the award. was unsound. The award makes it clear in so many words that he took into account the entire evidence, including the documents relied on by counsel and then only came to the conclusion that it did not assist the company in its contentio'l as to the scope of the sales. Contentions I and 2 raised by Mr. Agarwal, therefore, cannot be i; pheld.\n\nContention No. 3 relates to 54 7 vehicles said to have been sold to the company under sale-note 197, dated August 2/6, 1946., There is no dispute that out of these vehicles the company removed 291 vehicles alleging that the delivery of the balance of 256 vehicles was withheld.\n\nThe company made a claim being claim No. VI for the price of these 256 undelivered vehicles.\n\nThe respondents' contention was that the sale . to the company was confined onlv to 'the U.S.A.\n\nSurplus Stores. that these vehicles did not fall within that category, but were Reverse Land Lease vehicles belonging to the Government of India under an agreement between the U.S.A. and India.\n\nOn these allegations the respondents laid counter-claim No. VI claiming the price of the 291 vehicles admittedly removed by the company when they were lying in Jodhpur Depot, Calcutta.\n\nThe umoire found that the expression \"Reverse Land LeliSe\" related to the reciprocal aid articles referred to in the said agre ment.\n\nA reciprocal aid article. according to that agreement, -(i)[T92l] A.C. 395.\n\nmeant an article transferred by the India Government to tlie U.S. Government under reciprocal aid under para 4-C of that agreement.\n\nThe U.S.A. Government was deemed to have acquired as on September 2, 1945 full title over such articles except that such reciprocal aid articles incorporated into installations in India were deemed to have been rreturned to India Government from the date when the U.S.A. forces relinquished possession of such installations.\n\nFrom the inventories produced before him, the umpire held that these 54 7 vehicles were incorporated into installations in India, and therefore, ownership in them vested in India Government on and after the U.S.A. forces relinquished possession of those installations. They could not, therefore, be regarded as U.S. Surplus Stores which alone were and could be the subject-matter of sale-note 197. Consequently, the company was not entitled to remove the said 291 vehicles which it did, much .less could the company claim compensation for 256 vehicles , which it alleged were not delivered to it.. In the result, t)J.e. umpire allowed the Government's counter-claim No. VI, which was for the price of 291 vehicles unauthorisedly remowd by t)1e company from Jodhpur Depot.\n\nThe argument in connection with this paPt of th~ award was. fiNly, that the fi 0 ~·gs of the umnire were vitiated as there was tow! lack of evidence on which they could be based, and secondly that in any event, the umpire had no jurisdiction 10 award compensation to the Government in respect of counterclaim No. VI. The first part of the argument need not detain us as the finding that these vehicles formed part o' reciprocal aid articles, the ownership in which vested in the Government of India and were 'tl\\.refore not U.S.A.S.S. was !Jased on the agreement between the two Governments and the inventories produced before the umpire from which he could hold that they belonged to the Government of India from the date when the installations in which they were incorporated were relinqmshed by the U.S. forces, and that therefore, they could not form the subject-ma; ter of sale-note 197 which related only to the U.S. Surplus Sfores.\n\nThe second part of the argument, however, requires consideration.\n\nThe question is whether the arbitration clause included a dispute relating to compensation in respect of the said 291 vehicles unauthorisedly removed by the company. Cl. 13 ill the General Conditions of Contract, quoted earlier, provides for reference to arbitration of all questions or disputes \"arising under these conditions\" or \"in connection with this contract\".\n\nDr. Singhvi referred us to cl. I 0. of these Conditions also but ' it is clear that it can in no sense apply to the dispute relating to compmi;; ation, _But the words \"arising under these conditiom:•·\n\nALLEN , BERRY & co. v. UNION (Shefat, !.)\n\n29S\n\nand \"in connection with this contract\" are undoubtedly wide and comprehensive. It is, nonetheless, a question whether the dispute as to compensation on the ground of unauthorised appropriation of these vehicles by the company falls within cl. 13. In Vidya Sagar Joshi v. Surinder Nath Gautam(') the words \"expenditure in connection with election\" used in s. 77 of the Representation of the People Act, 1951 were construed to mean \"having to do with\".\n\nAn arbitration clause wherein the words \"in relation to or in connection with the contract\" were construed not to contemplate a dispute raised by a contractor that he could avoid the contract on the grour.d .that it was obtained by a fradulent. mis representation. (see Monro v. Bognor Urban District Council('). But a claim for damages on the ground of negligence on the part of the defendant in removing the plaintiff's furniture against a clause for due diligence in removing it was held to fall within the arbitration claus~. [Woolf v. Collis Removal Service( 8 )] •.\n\nCounsel conceded that a dispute as to the interpretation or sale-note 197 would fall under the arbitration clause.. If that is so, it must follow that the umpire 'was competent to decide whether the said 547 vehicles fell within the purview of the sale-note or not.\n\nE in determiniing that question he came to the conclusion that they did not, the obvious conclusion would be that the company was not entitled to talce away 291 vehicles admittedly removed by it from the Depot. If the company did that, would the question as to the return or of compensation in lieu of such vehicles, to which it was not entitled under the sale, be a question which arises out of or in connection with the contract ? Counsel went as far as to say that •the umpire in deciding the company's claim No. VI and the Government's counter-claim No. VI could decide that the company was not entitled to those vehicles, but could not take the next step either to direct the return of them or payment of compensation in lieu of those vehicles.\n\nIn Oljr view, such an argument cannot be accepted. The reason is that once it is found that he was competent to decide the dispute as to whether the said 54 7 vehicles were not the subject-matter of the sale and 291 of them were removed unauthorisedly, he must, to do justice !>etween the parties in respect of disputes referred to him, order the company either to return them or to pay compensation for them.\n\nSince the first course was not possible after all these years, the second was the only and the obvious course. The d, jspute raised by the respondents that 291 vel:iicles were not included in the sale was co-extensive with and connected with the dispute that the com-\n\n(!) A.LR. 1969 S.C. 288.\n\n(2) [1915](3) K.B. 167. (3) [1947] 2 All E.R. 260.\n\npany was bound to return them if it was found that they were not covered by the sale.\n\nOn this reasoning it is not possible . to say that the umpire went beyond his jurisdiction either in rejecting the company's claim No. VI or in accepting the corresponding counter-claim No. VI of the respondents.\n\nContention 4 relates to 600 vehicles which had been taken out of Moran Depot. for operational pm; poses, but which the company claimed were part of the sale under sale-note 160.\n\nThe umpire held (I) that those vehicles having been taken out of the Depot for operational purposes did not fall within the sale, and ( 2) in the alternative, that the evidence disclosed that a substantial number of vehicles in operational use were delivered to the company even though strictly speaking it was not\n\nentitled to them as they were not lying in the Depot on July l 0, 1946. The umpire further held that if some of them per chance were not handed over, the respondents had sufficiently compensated the company by handing over several non-operational vehicles from 1outside the depot to which the company was not entitled. . Counsel argued that this part of the award was vague and without any evidence to support it, and therefore, the umpire behaved in this respect more like a concilliator than as an arbitrator.\n\nHaving held that sale-note 160 covered only those vehicles which were actually lying in Moran Depot on July IO, 1946, it was not incumbent on the umpire to deCide the number of operational vehicles ou•side the depot.\n\nConseque1_:iy, if he was satis1ied that even though the company was not entitled to the said 600 vehicles claimed by it, yet the authorities had delivered a substantial number ol them, and for any deficiency, had also delivered non-operational vehicles, there would be no -purpose in going into the details_ of vehicles delivered to the company.\n\nEven though, as the judgment of the Trial Court discloses (para 223), there was evidence, both oral and documentary, that the company had collected a number of vehicles lying at places outside the Depot, and the vehicls so collected were recorded by the company, yet the company had withheld the production of those records. In view of these facts it is impossible to say that the umpire had acted without evidence, or that he behaved in the manner of a conciliator, or gave findings on conjectures and surmises.\n\nOur interference was invited next on the question of ground rent on the ground that the amount of such rent was fixed by the umpire without any evidence. There is hardly any substance in this contention. The sites, on which the various depots were\n\nituated. were requisitioned by the Government under the\n\nALLEN BERRY & CO. V. UNION (Shelat, J.) 297\n\nDefence of India Rules.\n\nThe Government had a statutory obligation, therefore, to pay to the owners of those sites compensawn as provided by Jiose Rules.\n\nUnder the contracts of sale the company was bound to pay to the Government ground rent and other charges which the Government in its turn was liable to pay.\n\nIt is, therefore, not correct to say that tht: umpire could award only that amount which the Government had actually paid and that the umpire should, therefore, have taken an account from the Government.\n\nIt was never the case of the company that the Government had claimed ground rent higher than the compensation it was liable to pay.\n\nThe last objection was that the amount of costs awarded by the umpire to the respondents wa~ disproportionate. It appears from the award that the umpire fixed the amount of costs after considering the statements of expenses incurred by the parties for the hearing beforel him tendered by the respective counsel for the parties.\n\nConsidering the huge amounts claimed by the parties, ~ an arrear of land revenue.\"\n\nThe amount claimed to be due from the respondent is not on account of the price of any forest produce, or of expenses incurred in the execution, for recovery of any forest produce. The amount is also not due in the e11:ecution of the Regulation. So far there is common ground. It was claimed, however, that the amount w~ due under rule 10 promulgated in exercise of power under the 'Regulation and o_n that account it was recoverable as an arrear of land revnue. Rule 10 provides :\n\n\"No lease for any . fixed period giving the right of removing India rubber, cane, kutcha or cutch, . lac, agar, ivory, or any other forests produce shall be given otherwise than in accordance with the genral or special\n\norders of the Conservator who is empowered to authorise sales in respect of such leases, by auction, tender or any other method at such rates as he may decide in his discretion.\"\n\nThe Rule in our judgment does not apply to recovery of the amount alleged to be due for failure t, o arry out the obligations of the tender by proceedings under the Assam Forest Regulation\n\n1891. It is again difficult to hold that stone is forest produce within the meaning of the Act. In any event the Rule does not give rise to any liability to pay a sum of money.\n\nIt merely imposes a limitation upon the power of the officers of the. Forest Department to grant leases in respect of certain forest produce.\n\nThe lease may not be granted except in accordance with the general or special orders of the Conservator who alone is empowered to authorise a sale in respect of such a lease. It is a rule relating to the exercise of power to grant leases. The High Court was, in our judpnent, right in observing th!t the amount of damages for breach of the terms of the sale notice is not an amount due under the Regulation, or rule 10 made thereunder.\n\n/ The appeal accordingly fails and is dismissed with costs.\n\nG.C.\n\nAppeal dismissea.", "total_entities": 28, "entities": [{"text": "DIVL. FOREST OFFICER", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "DIVL. FOREST OFFICER", "offset_not_found": false}}, {"text": "MOOL CHAND SAROUGI JAIN", "label": "RESPONDENT", "start_char": 25, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "MOOL CHAND SAROUGI JAIN", "offset_not_found": false}}, {"text": ")pnuary 6, 1971", "label": "DATE", "start_char": 49, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "FOREST OFFICER v.\n\nMOOL CHAND SAROUGI JAIN )pnuary 6, 1971\n\n(J. C. SHAH, C.J., K. S. HEGDE AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH, C.J.", "label": "JUDGE", "start_char": 70, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 85, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Assant Forest Regulation", "label": "STATUTE", "start_char": 123, "end_char": 147, "source": "regex", "metadata": {}}, {"text": "Government of_Assam granted stay of the order.", "label": "ORG", "start_char": 602, "end_char": 648, "source": "ner", "metadata": {"in_sentence": "On appeal being filed against the order accepting the tender the Government of_Assam granted stay of the order."}}, {"text": "January 10, 1964", "label": "DATE", "start_char": 845, "end_char": 861, "source": "ner", "metadata": {"in_sentence": "Thereafter tenders had to be invited again and it was only on January 10, 1964 that 'l settlement was made for a minimum quantity of 5000 c.ft."}}, {"text": "January 25, 1964", "label": "DATE", "start_char": 947, "end_char": 963, "source": "ner", "metadata": {"in_sentence": "for'the period from January 25, 1964 to June 30, 1964 for Rs."}}, {"text": "June 30, 1964", "label": "DATE", "start_char": 967, "end_char": 980, "source": "ner", "metadata": {"in_sentence": "for'the period from January 25, 1964 to June 30, 1964 for Rs."}}, {"text": "s. 75", "label": "PROVISION", "start_char": 1187, "end_char": 1192, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Assam", "label": "ORG", "start_char": 1488, "end_char": 1502, "source": "ner", "metadata": {"in_sentence": "The State of Assam appealed to this Court \\Vith certificate."}}, {"text": "Assam Forest Regulation 1891", "label": "STATUTE", "start_char": 1883, "end_char": 1911, "source": "regex", "metadata": {}}, {"text": "Naunit Lal", "label": "PETITIONER", "start_char": 2602, "end_char": 2612, "source": "ner", "metadata": {"in_sentence": "Naunit Lal."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 2635, "end_char": 2650, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 2767, "end_char": 2771, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was' delivered by\n\nShah, C.J.\n\nThe Divisional Forest Officer, Kamrup Division,."}}, {"text": "Divisional Forest Officer, Kamrup Division,.\n\nAssam", "label": "RESPONDENT", "start_char": 2783, "end_char": 2834, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was' delivered by\n\nShah, C.J.\n\nThe Divisional Forest Officer, Kamrup Division,."}}, {"text": "July 1, 1963", "label": "DATE", "start_char": 2976, "end_char": 2988, "source": "ner", "metadata": {"in_sentence": "Assam invited tenders for the purchase of monopoly rights to quarry stone from certain areas, including Harengi Stone Quarry Mahal, for the period July 1, 1963 fo June 30, !"}}, {"text": "June 30, ! 964", "label": "DATE", "start_char": 2992, "end_char": 3006, "source": "ner", "metadata": {"in_sentence": "Assam invited tenders for the purchase of monopoly rights to quarry stone from certain areas, including Harengi Stone Quarry Mahal, for the period July 1, 1963 fo June 30, !"}}, {"text": "Chand Sarougi", "label": "RESPONDENT", "start_char": 3015, "end_char": 3028, "source": "ner", "metadata": {"in_sentence": "Chand Sarougi-hereinafter called 'th.e .respondent' submitted a tender accompanied by."}}, {"text": "July 13, 1963", "label": "DATE", "start_char": 3465, "end_char": 3478, "source": "ner", "metadata": {"in_sentence": "iven to the respondent on July 13, 1963."}}, {"text": "Baputi Ram", "label": "OTHER_PERSON", "start_char": 3485, "end_char": 3495, "source": "ner", "metadata": {"in_sentence": "One Baputi Ram, a member of a scheduled tribe, appealed against the order of the Divisional Forest Officer accepting the tender, to the Government of Assam and obtained a stay order."}}, {"text": "Government of Assam", "label": "ORG", "start_char": 3617, "end_char": 3636, "source": "ner", "metadata": {"in_sentence": "One Baputi Ram, a member of a scheduled tribe, appealed against the order of the Divisional Forest Officer accepting the tender, to the Government of Assam and obtained a stay order."}}, {"text": "High Court of Assam", "label": "COURT", "start_char": 4408, "end_char": 4427, "source": "ner", "metadata": {"in_sentence": "The respondent then moved a petition in the High Court of Assam for an orde.r quashing the proceeding for recovery of the amount demanded."}}, {"text": "Section 75", "label": "PROVISION", "start_char": 4887, "end_char": 4897, "source": "regex", "metadata": {"statute": null}}, {"text": "Assam Forest Regulation\n\n1891", "label": "STATUTE", "start_char": 6425, "end_char": 6454, "source": "regex", "metadata": {}}, {"text": "Forest Department", "label": "ORG", "start_char": 6698, "end_char": 6715, "source": "ner", "metadata": {"in_sentence": "Forest Department to grant leases in respect of certain forest produce."}}]} {"document_id": "1971_3_301_305_EN", "year": 1971, "text": "301.\n\nMAHABIR PRASAD\n\nJAGE RAM & ORS.\n\nJanuary 6, 1971\n\n[J. C. SHAH, C.J. AND K. S. HEGDE, J.)\n\nCode of Civil Procedure (5 of 1908), 0. 41, r, 4-Scope of.\n\nThe appellant( his wife, and his mother held a joint decree. Against: an order dismissing the applie.ation for execution of , the . decree, the appellant alone appealed joining the other two as party respondents.\n\nPend:ng appeal his wife died.\n\nThe High Court dismissed the appeal. holding that because the heirs and legal representatives of the appellant wife were not brought on rec the relatiorrship between the parties was that of landlord and tenant.\n\nWi\\11 certificate F\n\nranted by the High Court the plaintiff has a.ppealed to this Court.\n\nThe certificate granted by the High Court is defective.\n\nThe 'plaintiff applied for certificate under Art. 133(1) (a) of the Constitution and in the alternative under Art. 133(1)(c) of the Constitution.\n\nThe High Court passed an order certifying the case G\n\n1 under Art. 133(1)(c). A certificate granted ?Y th~ !Jigh Court must be supported by adequate reasons. It ts obhgatory upon the High Court to set out the question of public or private importance which in their opinion fall to be determined in the proposed appeal.\n\nSjnce we are of the view that there is no merit in this appeal, we have not thought it fit to vacate the certificate.\n\nH The agreement dated November 3, 1958 was recorded formally in writing and was duly executed.\n\nThe plaintiff was the. lessee of a shop No. 11 in Pragraj Galli, Mulji Jetha Market, and\n\nSOHAN LAL v. LAXMIDAS (Shah, C.J.) 321\n\nthe loft _of that shop was the subject matter of that agreement.\n\nThe penod of the agreement was one year.\n\nIt was stated in the agreement that the loft \"was. given on leave al).d licence basis for use amroccupation\" of the defendant on the terms and conditions mentionc:_d therein. The relevant conditions wre-\n\n\" I. The owner (the plaintiff) has agreed to grant the leave the licence for use and occupation of the said loft (Medo) of the said shop for a period one year commencing from 4so Vad 13 S. Y. 2014 to Aso Vad 12\n\nS. Y. 2{)15.\n\n2. The Licensee (the defendant) shall pay to the Owner monthly compensation or Licensee fee at the rate of Rs. 250 / • per month, and the Licensee has paid Rs. 3000/- (Rupee three thousand) only to the Owner as compensation or licence fee for the said period in advance on or before the execution of this agreement.\n\n3. The Licensee shall have no right as a tenant or sub-tenant in respect of the said loft (Medo) of the said shop.\n\nThe Licensee shall not sub-let, allow to use, transfer or assign in any way the said loft (Medo) of the shop to any one else.\n\n4. The Owner shall bear and pay the rent of the said shop.\n\n5. The Licensee shall use and occupy the said loft (Medo) of the said shop as a cloth merchants only and shall not be entitled to carry on any other business.\n\n6. The parties hereto shall give one month's clear notice of their intention to terminate this agreements in writing. 7.\n\n8. If the Licensee commits breach of any of the terms of this agreement in that case the Owner shall be entitled to tem1inate and recoke the leave and licence G hereby granted without giving notice to the Licensee.\"\n\nThe defendant was put in exclusive possession of the loft. The plaintiff did not reserve possession of any pan of the loft or a right of entry therein.\n\nThe loft had a separate entrance. The customers of the defendant used the separate entrance to the loft during the business hours and his stock of cloth remained in the loft after business hours.\n\nThe plaintiff and defendant were both cloth merchants, and the only consideration for granting the licence was the payment of Rs. 250/- per month.\n\nThere is no\n\n7-LS07Sup./71\n\nSUPREME COURT REPORTS\n\n[1971 ]3 S.C.R.\n\nA evidence that the loft was given to the defendant out of sympathy or because of friendship, or relationship, or any similar motive.\n\nIt was stipulated that the plaintiff may terminate the agreement by giving one month's clear notice, the agreement could not be terminated by notice of a shorter duration.\n\nAn attempt was deliberately made to camouflage the true 8 nature of. the agreement, by reciting in several clauses that the agreement was for leave and licence, and to emphasise the presence it was also recited that the defendant was not to have any right as tenant or sub-tenant in respect of the loft.\n\nAt the trial the elder brother of the defendant was examined as a witness.\n\nHe stated that the agreement dated November 3, C 1958 was intended to be an agreement of lease, but the pl?intiff insisted that the agreement be drafted with the conditions set out therein.\n\nSection 52 of the Easements Act defines a \"Licence\" :-\n\n\"Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence \"\n\nSection 105 of the Transfer of Property Act defines \"lease\" :-\n\n\"A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, . express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transfer or by the transferee, who accepts the transfer on such terms.\n\nA licence confers a right to do or continue to do something in or G upon immovable property of grantor which but for the grant of the right may be unlawful, but it creates no estate or interest in the immovable property of the grantor.\n\nA lease on the other hand creates an interest in the property demised.\n\nIntention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances.\n\nThe description given by the parties may be, evidence of the intention but is not decisive.\n\nMere\n\nSOHAN LAL v. LAX?.1itoAs (Shah, C.J.) 323\n\nuse of the words appropriate to the creation of a lease will not preclude the agreement operating as a licence.\n\nA recital that the agreement does not create a tenancy is also not decisive.\n\nTho crµcial test in each Cl!$e is whether the instrument is intended to create or not to create an interest in the property the subject matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it i.; a licence. 1n determining whether the agreement creates a lease 9r a licence the test of exclusiv epossession, though not decisive, is .of signifi cance.\n\nMrs. M. N. Clubwala v. Fida Hussain Saheb and Ors(1).\n\nThe Trial Court regarded exclusive possession of the premises given to the defendant as conclusive of the question whether the loft was in the occupation of the defendant as a tenant.\n\nThe Court observed that on a consideration of the clauses of the agreement it was unable to reach a conclusion whether the agtee ment was intended to operate as a lease or as a licence but since exclusive possession was given it must be regarded a lease.\n\nThe High Court considered all the covenants and the attendant cirr cumstances and reached the conclusion that having regard to th~ exclusive possession given to the defendant it was intended\n\nIOI confer an interest in the loft and on that account the agreement operated as n lease and not as a licence.\n\nWe have carefully considered the covenants in the light of the relevant surrounding circumstances.\n\nWe are unable to disagree with the view taken by the High Court that by the terms of the 11greement an interest was created in the loft in favour of the def eHdant.\n\nThe appeal fails and is dismissed with costs.\n\nG.C.\n\nAppeal dismissed.\n\n(I) [1964!6S.C.R.642.", "total_entities": 29, "entities": [{"text": "SORAN LAL NARAINDAS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "SORAN LAL NARAINDAS", "offset_not_found": false}}, {"text": "LAXMIDAS RAGHUNATH GADIT", "label": "RESPONDENT", "start_char": 24, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "Laxmidas Raghunathhereinafter", "offset_not_found": false}}, {"text": "C. SHAH, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "S. HEGDE", "label": "JUDGE", "start_char": 90, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 103, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "City Civil Court, Bombay", "label": "COURT", "start_char": 298, "end_char": 322, "source": "ner", "metadata": {"in_sentence": "The plaintiff commenced an action in the City Civil Court, Bombay for a decree in ejectinent against the defendant alleging that the defendant was occupying loft on the upper floor of a building under an agreement of licence and the licence had been duly terminated and withdrawn."}}, {"text": "Hotel and Lodging Rates Contract Act, 1947", "label": "STATUTE", "start_char": 721, "end_char": 763, "source": "regex", "metadata": {}}, {"text": "High Court of BombfU'", "label": "COURT", "start_char": 901, "end_char": 922, "source": "ner", "metadata": {"in_sentence": "The decree was confirmed in appeal by the High Court of BombfU'."}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 1033, "end_char": 1044, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging Rates Contract Act, 1947", "statute": "Hotel and Lodging Rates Contract Act, 1947"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 1116, "end_char": 1124, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging Rates Contract Act, 1947", "statute": "Hotel and Lodging Rates Contract Act, 1947"}}, {"text": "[1964] 6 S.C.R.\n\n642", "label": "CASE_CITATION", "start_char": 2572, "end_char": 2592, "source": "regex", "metadata": {}}, {"text": "F. S. Nariman", "label": "JUDGE", "start_char": 3151, "end_char": 3164, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, P. C. Bhartari a.nd J. B. Dadao, hanji."}}, {"text": "P. C. Bhartari", "label": "LAWYER", "start_char": 3166, "end_char": 3180, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, P. C. Bhartari a.nd J. B. Dadao, hanji."}}, {"text": "B. Dadao", "label": "LAWYER", "start_char": 3189, "end_char": 3197, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, P. C. Bhartari a.nd J. B. Dadao, hanji."}}, {"text": "D. V. Patel", "label": "LAWYER", "start_char": 3226, "end_char": 3237, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, Ramesh Malik and Ganpat Rai, for the respondent."}}, {"text": "Ramesh Malik", "label": "LAWYER", "start_char": 3239, "end_char": 3251, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, Ramesh Malik and Ganpat Rai, for the respondent."}}, {"text": "Ganpat Rai", "label": "LAWYER", "start_char": 3256, "end_char": 3266, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, Ramesh Malik and Ganpat Rai, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3333, "end_char": 3337, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was deliyered by\n\nShah, C.J.\n\nSohan Lal Naraindas-hereinafter referred to c as 'the plaintiff'-commenced an action in the City Civil Court, Bombay, for a decree in ejectment against Laxmidas Raghunathhereinafter called 'the defendant'- iilleging that the defendant was occupying a loft 19' x 15' on the upper floor of a building at Pragraj Galli, Mulji Jetha Market, Bombay under an agreement of licence dated November 3, 1958 and tliat the licence had been duly terminated and withdrawn but the defendant had failed and D neglected to vacate the loft notwithstanding the demand."}}, {"text": "Sohan Lal Naraindas", "label": "JUDGE", "start_char": 3345, "end_char": 3364, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was deliyered by\n\nShah, C.J.\n\nSohan Lal Naraindas-hereinafter referred to c as 'the plaintiff'-commenced an action in the City Civil Court, Bombay, for a decree in ejectment against Laxmidas Raghunathhereinafter called 'the defendant'- iilleging that the defendant was occupying a loft 19' x 15' on the upper floor of a building at Pragraj Galli, Mulji Jetha Market, Bombay under an agreement of licence dated November 3, 1958 and tliat the licence had been duly terminated and withdrawn but the defendant had failed and D neglected to vacate the loft notwithstanding the demand.", "canonical_name": "SORAN LAL NARAINDAS"}}, {"text": "Laxmidas Raghunathhereinafter", "label": "RESPONDENT", "start_char": 3497, "end_char": 3526, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was deliyered by\n\nShah, C.J.\n\nSohan Lal Naraindas-hereinafter referred to c as 'the plaintiff'-commenced an action in the City Civil Court, Bombay, for a decree in ejectment against Laxmidas Raghunathhereinafter called 'the defendant'- iilleging that the defendant was occupying a loft 19' x 15' on the upper floor of a building at Pragraj Galli, Mulji Jetha Market, Bombay under an agreement of licence dated November 3, 1958 and tliat the licence had been duly terminated and withdrawn but the defendant had failed and D neglected to vacate the loft notwithstanding the demand.", "canonical_name": "Laxmidas Raghunathhereinafter"}}, {"text": "Lodging House Rates Contract Act 1947", "label": "STATUTE", "start_char": 4088, "end_char": 4125, "source": "regex", "metadata": {}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 4341, "end_char": 4361, "source": "ner", "metadata": {"in_sentence": "The decree was confirmed in appeal, by the High Court of Bombay."}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 4732, "end_char": 4743, "source": "regex", "metadata": {"linked_statute_text": "Lodging House Rates Contract Act 1947", "statute": "Lodging House Rates Contract Act 1947"}}, {"text": "Art. 133(1)(c)", "label": "PROVISION", "start_char": 4797, "end_char": 4811, "source": "regex", "metadata": {"linked_statute_text": "Lodging House Rates Contract Act 1947", "statute": "Lodging House Rates Contract Act 1947"}}, {"text": "Art. 133(1)(c)", "label": "PROVISION", "start_char": 4896, "end_char": 4910, "source": "regex", "metadata": {"linked_statute_text": "Lodging House Rates Contract Act 1947", "statute": "Lodging House Rates Contract Act 1947"}}, {"text": "November 3, C 1958", "label": "DATE", "start_char": 8447, "end_char": 8465, "source": "ner", "metadata": {"in_sentence": "He stated that the agreement dated November 3, C 1958 was intended to be an agreement of lease, but the pl?intiff insisted that the agreement be drafted with the conditions set out therein."}}, {"text": "Section 52", "label": "PROVISION", "start_char": 8603, "end_char": 8613, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 105", "label": "PROVISION", "start_char": 8998, "end_char": 9009, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 9017, "end_char": 9041, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]} {"document_id": "1971_3_324_339_EN", "year": 1971, "text": "DAYARAM & ORS.\n\nDAWALATSHAH ?!< ORS.\n\nJanuary 8, 1971\n\n[J. C. SHAH, C.J., K. S. HEGDE AND A. N. GROVER, JJ.]\n\nMadhya Pradesh Abolition of Proprietary Rights (Estates, Mahal•, Alienated Lands) Act 1 of 1951-, SS. 3, 14-S. 14 scope of-, Section on(v .. infenild to determine the Proprietary rights in lhe land qua the State-,-Dhanora-Zamindari-Succession by lineal primogeniture-'Neaf 4!st male relati, ve' does not mean eldest male re/aiive.\n\nUnder the Chanda Patent and the terms recorded in the Wajibul-Arz the 'Dhanora Zamindari was impartible and on the death df the holder it devolved upon his eldest son and in the absence of a legitimate or an adopted son it devolved upon the nearest male relative. The succession to the Zamindari was subject to the power of the Governor to dispossess a. person found unfi( to observe the conditions of loyalty, good police 11dministration and improvement of the estate. The respondent instituted an action for possession of certain immovable properties including the zamindari and for recovery of compensation, in respect of ma/guzari land•, paid to the appellants in consequence of the enactment of the Madhya Pradesh Abolition of Proprietary Rights ·· (Estate, Mahals, Alienated Lands) Act, 1951.\n\nThey claimed the Zamindari relying upon the rule of primogeniture and other estates as devisees under a Will. The trial court decreed the suit and the High Court affirtned the decree with o.light modifications. In the appeal to this Court the a~ellants urged that\n\n(I) the Zamindari devolved on the death of the holder on the male relative who is senior most in age and not the eldest member in the senior line; (2) by the order of the Governor the Zamindari was conferred upon the first appellant as he was fotind suitable to hold the zamindari and since the Governor had thC' power to detrmine inheritance and the right to remove a person, the holder of the zamindari had merely a life interest; and (3) the compensation officer had decided by his order under s. 14 -Of the Act that compensation in respect of malqutari land was. payable to the first appellant and since no suit was filed by the plaintiffs for setting aside that decision within the period specified, the order of the compensation officer bec•me final and conclusive.\n\nHELD : (I) By the 'JSO of the expression \"the nearest male relative\" the test of propinquity alone may be applied and when there are two or more claimants equally teJ110Ved from the common ancestor the eldest male member in the senior most line will be preferred. The contest between the parties had to be adjudged in the light of the rules of lineal pdmogeniture governing an impartible estate.\n\nIn determining a single heir according to the rules of primogeniture the class of heirs who would\n\nD ,\n\nbe entitled to succeed the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected.\n\nBy the expression \"nearest male relative'' it was not intended to confd: the estate upon the eldest male relative of the Zamindar. The High Court was, therefore, right in holding that the Zamindari devolved upon the first respondent to the exclusion of the first appellant. [333 C-F]\n\n(2) The power vested in the Governdr to take extraordinary steps to protect the interest of tho zamindari by the removal of the,..bqlder did not restrict the title of the zamindar to a mere life interest. Tiie power had to be exercised in accordance with the custom of the famjly and an order by the Governor purf'orting to exercise powers under the Chanda Patent contemplated a quasi judicial inquiry.\n\nThe order does not show that any lnquiry was made for determining the rights of the contesting claimants. [334 G]\n\n(3) Section 14 of Act 1 of 1951 does not invest the compensatioo officer with jurisdiction to determine competing claims of persons claiming proprietary rights to the property vested in the Government by the operation of s. 3 of the Act. Section 14 is intended to determine only\n\nthe proprietary rights in the land qua the State. (339 D-E]\n\nC1VIL APPELLATE JURISDICTION: Civil Appeal No. 2433 of 1966.\n\nAppeal from the judgment and decree dated August 2, 1965 of the Bombay High Court, Nagpur Bench in Appeal No. 113 ct.\n\n195 9 from original decree.\n\nV. S. Desai, v. N. Swamy, K. Rajendra Chaudhuri and K. R.\n\nChaudhuri, for the appellants.\n\nM. N. Phadke and A. G. Ratnaparkhi, for the respondeints.\n\nThe Judgment of the Court was delivered by\n\nShah, C.J. Dawalatshah and Ranwirshah-sons of PrataP\" shah-instituted an action in the Court of the Additional District Judge, Chanda, for a decree for possessi'ln of property immovable (including the Zamindari of Dhanora) and movable specified in the Schedules annexed to the plaint, and for an order for payment of mesne profits and also for recovery of the amount of compensation in respect of certain lands received by the defendants from the Government of Madhya Pradesh and for an order dedaring\n\ntheir right to receive the balance of compensation remaining to be paid.\n\nThe plaintiffs relied upon the fqllowing genealogy :\n\nNiru Thakur .\n\nSitaram Thakur\n\nBhakta Thakur\n\nTanba Thakur\n\nNilkanthshah\n\nPratapshah\n\nGangashah\n\nSakru Thakur\n\n; Dawltshah\n\n(Platff.\n\nRanwirshah Gutab (Platff.\n\nShah No. 2) (dead)\n\nHanmantrao\n\nDiwakarrao (Die•J Sept., 8, 1932)\n\nNo. I)\n\nAn1arshah Bao; u\n\nDied Dec. 9,\n\n1950)\n\nChandarshah (dead)\n\nBall•rshah\n\nKajur.\n\nThakur\n\nChatturshah (dead)\n\nLallshah\n\n(•lead)\n\nKaranshah (dead)\n\nKaransl\"'ah\n\nDay2ran1 (Deft. dt. No, 1) Indershah (Deft. No. 2)\n\nGovinda Bud ha\n\nRaju Thakur\n\nNiranshah\n\nI.axman\n\n(dead)\n\nThe plaintiffs claimed that the property in suit originally u belonged to Gangashah. Gangashah had five sons : Hiru, Bhak:ta, Sakru, Kajur and Raju.\n\nThe branches of Sakru and Kajur became extinct a long time ago.\n\nThe branch of Hiru (who was\n\nthe eldest among the five sons of Gangashah) because extinct with the death of Amarshah on December 6,\n\n1950. The plaintiffs claimed the Zamindari held by Amarshah relying upon the rule of primogeniture, and the other estate of Amarshah as devisees under the will of Amarshah executed on December 3, 1950. They submitted that the Dhanora Zamindari was granted to Sitaram ancestor of Amarshah as an impartible estate, devolvrig by the rule of primogeniture; that the Zamindari on that account devolved on the death of Amarshah upon Pratapshah and that on the death of Pratapshah and Zamindari devolved upon the first plaintiff.\n\nThe plaintiffs also claimed that the other property including Malguzari lands devolved upon them under a will executed on December 3, 1950 whereby Amarshah devised his estate in their favour.\n\nAccordingly the first plaintiff claimed that he was entitled to the Zamindari on the death of Pratapshah on January 27, 1951 and the plaintiffs claimed the other estate of Amarshah as devisees under his will.\n\nThe plaintiffs submitted that Dayaram the first defendant took wrongful possession of the Zamindari and other property, movable and immovable of Amarshah.\n\nThe defendants by their written statement maintained that the genealogical table set up by the. plaintiffs was incorrect, that by the order of the Governor of Madhy11. Pradesh dated November 9, 1951, the Zamindari was conferred upon the 1st defendant Dayaram as he was found suitable to hold the Zamindari and the decision of the Governor was bidding upon the plaintiffs; that the decision of the Compensation Officer regarding Malguzari lands which vested in consequence of the enactment of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Act 1 of 1951, had become binding and conclusive against the plaintiffs because no suit challenging the decision was instituted within two months from the date thereof andthe plaintiffs were on that account not entitled to claim the compensation paid or payable in respect of the Malguzari lands; that Amarshah did not execute the will set up by the plaintiff~ and that Amarshah had made a will dated December 8, 1950 under which his estate was devised in favour of the defendants.\n\nThe Trial Court held that the Dhanora Zamindari was impartible and was governed by the rule of primogeniture and Pratap, shah father of the plaintiffs being the eldest member of the seniormost branch from among the descendants of the cc:nmon ancestor Gangashah was entitled to the Zamindari; that the plaintiffs were entitled to receive compensation in respect of the Malguzari lands and the decision of the Compensation Officer did not operate to deprive the plaintiff of the right to those lands or compenatin\n\npayable in respect thereof; that the will >et up by the plamttffs\n\n32S\n\nSUPREME COURT REPORTS [1971]3 S.C.ll.\n\ndated .Decen_iber ~, 1950 was genuine and the plaintiffs . were A under. the will entitled. to the estate devised in their favour by Amarshah; that the will dated December 8, 1950, set up by the defendants was \"a fabricated will\" and conferred no right or title upon the. defendants; and that the genealogical table set up by the plamttffs represented the true relationship between the descendans of Gangashah.\n\nIn appeal jJy the defendants, the High Court of Bombay confirmed the decree of the Trial Court with a slight modification.\n\nTh~ l; ligh Court held that the genalogical table set up by the plamttffs was correct, that accordmg to the custom governing succession Dhanora Zamindari devolved upon Pratapshah on the C death of Amarshah, and on the death of Pratapshah the firtplaintiff became entitled to the Zamindari, that the order of the Governor recognising Dayaram as Zamindar was not binding and conc:usive, for it was not shown that in making the order the Governor had acted in exercise. of the power conferred by the Chanda\n\nPatnt; that the order was contrary to the customs and the law governing the Zamindari; that the decision of the Governor did D not oust the jurisdiction of the the Civil Court; that the will dated December 8, 1950set up by the defendants was not genuine and the will set up by the plaintiffs dated December 3, 1950, was genuine; anci that the plaintiffs' suit with regard to Malguzarl lands was not barred by the decision of the Compensation Officer.\n\nThe High Court accordingly confirmed the decree passed by the E Trial Court in respect of the Zamindari replying upon the rule of inheritance incorporated in the Wazibul-Arz of the Ch<.aua District and by succession under the will dated December 3, 1950 in respect of the other property except as to certain occupancy lands held by Amarshah.\n\nWith certificate granted by the High Court the defendants F have appealed t'J this Court.\n\nCertain concurrent findings on which not much argument was advanced at the Bar may first be set out. The High Court agreeing with the Trial Court on appreciation of evidence held: that the\n\n2enealogy set up by the plaintiffs represented the true relationship G between the parties.\n\nAgain the High Court agreeing with the Trial Court held that the will dated December 3, 1950 set up by the plaintiffs .was genuine while the will dated December 8, 1950 set up by the defendants was not genuine.\n\nThe argument that the High Court did not give due weight to certain important circurnstances in reaching \\their conclusion relating to the will set H up by the plaintiff is with9t ubstance. he c_ircumstances relied upon are that the wntmg mstrument with which the ix?dY of 1he will was written and the writing instrument with which\n\n' 1.\n\n\"\"'/\n\nAmarshah, it was claimed, signed or executed the will were different, that the will ..vas not registered, that the appearance of the will was suspicious, that the will was unnatural because it devised the estate in favour of the plaintiffs after giving a life interest in favour of the testator's widow Ratnabai, that the will haq not been produced before the revenue authorities and before the Compensation Officer when disputes in relation to the estate of Amarshah were pending before those authorities, and that it was produced for the first time nearly seven years after the death of Amarshah, and that the scribe who wrote the will did not belong to the village to which Amarshah belonged.\n\nThe Trial Court and the High Court have reached the conclusion that on the circumstances no suspicion as to the genuineness of the will dated December, 1950 arose. It may be noticed that the plaintiffs were, at the date of their father's (Pratapshah's) death minors, and soon after Pratapshah's death, their mother abandoned them and remarried.\n\nThereafter o one attended to the pending litigation.\n\nFailure to produce the will before the revenue authorities was\n\ntherefore not a circumstance in the view of the High Court, which militated against the genuineness of the will.\n\nIn the view of the Courts absence of registration, appearance of the will, the contents thereof, the dispositions, thereunder, and the fact that the writer of the will belonged to another village did not in the circumstances of the case give rise to any suspicion.\n\nWe do not think that sitting in appeal we would be justified in interfering with the conclusion recorded by the Trial Court and confirmed by the High Court on what is essentially a conclusion on a question of fact.\n\nThe will set up by the defendants is not proved to be a genuine will executed by Amarshah.\n\nThis again is a concurrent finding of the two Courts and must be accepted in this Court. No\n\nargument has been advanced to pursuade us to take a. different view. The rights of the parties must be adjudged i11 the light of these findings.\n\nThe dispute between the parties relates to three set of properties-\n\n(a) Dhanora Zamindari\n\n(b) Malguzari lands; ( c) Occupancy lands and movables.\n\nThe ancestors of the parties held an extensive Zamindari in the Chanda District.\n\nAfter the advent of the British rule, in !!lat region, the eyenue authorities commenced settlement op:ratios.\n\nAn inquiry was held by the Settlement Officer in connechon with the lands held by the family of the. parties and statements of some\n\nSUPREME COURT REPORT~\n\n[1971]3 S.C.R.\n\nmembers were recorded.\n\nChattarshah s/o Kajur stated th:1t the Zamindari of Dhanora was standing in the name of his cousin Sitaram and that all the members of the family were joint and maintained themselves out of the income from the Zamindari. In his statement Sakru admitted that the rule of primogeniture prevailed in the family.\n\nHe stated that Hiru was his eldest brother and Sitaram was the son of Hiru and the Zamindari was recorded in the name of Sitram according to Awwal Haqq i.e. rule of primogeniture from ancient times, even though he was senior in age, and that there was no quarrel between him and Sitaram and that he and Sitaram were living jointly and were taking the income from the Zamindari.\n\nThe Settlement Officer made an order on November 2, 1867 that the \"Zamindari is of ancient tenure and the present Zamindar\n\nSitaram Thakur has proved his right to be Zamindar.\n\nSubject to\n\nthe conditions to be embodied in patent of proprietary right.\n\nI confer proprietary right in the Zamindari of Dhanora on Sitaram Thakur\".\n\nThe Settlement Officer observed that conferment of proprietary rights was subject to conditions to be embodied in a D patent qf proprietary rights.\n\nIt may reasonably be inferred that a formal grant was made in favour of Sitaram.\n\nThe form of the grant which is known as \"Chanda Patent\" is reproduced in Aitchison's \"Collection of Treaties, Engagements and Sanad<;\"· Vol. II, pp. 573-574.\n\nUnder the Chanda Patent it was declared that the tenure shall be indivisible, and non-transferable (save to E to the nearest male heir the transfer in such case being subject to the app:uval of the Chief Commissioner) the land shall be held by one person, the Zamindar or Zamindarin for the time being and shall be held on conditions of (i) loyalty (ii) good police administratioQ and (iii) improvement and cultivation of the estate.\n\nClauses V, VI, VII of the grant relating to succession to F the Zamindari held under the Patent :\n\n\"V. Subject to the provisions contained in Clause VI, tbe-order of succession shall be as under:-\n\nOn the death of the Zamindar, the estates shall devolve upon his eldest son. In default of a son, and when adoption has not taken place, the succession should preferably devolve on the nearest male 'kinsman, the widow receiving a suitable riiaintenance.\n\nVI. In the event of the first in order of succession being, in the opinion of the local Government, unfit to carry out -the conditions of Clause IV, the Zamindaree shall devolve upon the nearest heir who possesses the required qualification.\n\n...\n\n• j -1\n\nVII. The Zamindar, in the case of gross misconduct, shall be liable to removal by the local Government; and if such removal be ordered, the succession shall take place as if the Zamindar removed had died.''\n\nTenure of the grant is entered in the Wajibul-arz.\n\nThe relevant recitals in the Wajibul-arz are as follows :\n\nPART-I Rights and liabilities of Zamindar in relation to Government.\n\n(1) Watan Zamindar's Watan is not partible and it cannot be given to anyone other than quite close (the nearest) male heir.\n\nChanges taking place in this way should have sanction of the Governor-in- Council.\n\nThe Zamindari shall be in the name of only one person and the Zamindari has been granted to the Zamindar in pos!liession at present on the conditions of this remaining Joyal to the Government, managing his estate properly and improving the cultivation.\n\n(2) Heirs On the death of Zamindar the estate shall devolve upon his eldest son. If there is no legitimate or adopted son, it shall devolve upon a very close (the nearest) male relative. If there arises a dispute regarding right of inheritance, the Governor-in- Council will decide it in accordance, with the custom in that family.\n\nIf the Governor-in-Council finds that the first heir is unable to abide by the conditions stated in BAB (clause). the Zami11dari shall be granted to a quite close (the nearest) male heir possessing the necessary qualifications. ( 3) Dispossessing the Zamindar and forfeiting his rights.\n\nGovernor-in-Council may dispossess the Zamindar on account of his behaviour and bad administration.\n\nSuch dispossession may be for a few days or permanent. If it is for a few days, the Deputy Commissioner will manage the Zamindari on behalf cf the Zamindar and if the order of dispossession is permanent, the Zamindar shall so to say be deemed to have died and the heir will get the right.\" The entries in the Wajibul-ar~\n\nsubstantially reproduce the terms of the Chanda Patent as set out in Vol. II of Aitchison's \"Collection of Treaties, Engagements and Sanads\".\n\nOne Major C. B. Lucie Smith made a report relating to the Land Revenue settlement of the Chanda District, Central Pro vinces, 1869.\n\nAt pp. 179 to 180 Major Lucie Smith has referred to the Zamindarees of the Chanda District.\n\nHe has stated under the heed \"Zamindarees\".\n\n\"The Zamindarees were settled by me; and in order to explain the principles of settlement adopted i( will be\n\nncessary to touch first upon the questions of tenure and history.\n\nThe weight of testimony goes to show that the Zamindars are the descendants of men on whom were conferred tracts of country, more or less wild with the object of their being brought under cultivation and order maintained.\n\nNaturally, .... while the law was weak and its administrators distant. the Zamindar, as the lord on the spot, exercised large powers but powers apparently never recognised by either the Gond or the Maratta Government.\n\nHe was undobutedly regarded as a noble, bound to furnish a small contingent when required by his sovereign; but there is nothing to warrant to the supposition that he possessed an absolute right in the. soil; indeed, as far as my experience goes, such a right is foreign to the ideas of the races of this part of India.\n\nThe rulers of the day evide'.ltly made and unmade Zamindars at their pleasure; . . . . . .\n\nUnder these circumstances it appeared that the Chanda Chiefs, though the Nobles of the Country, possessed no absolute rights in the soil, and ttiat it rested with Government to confer it; and in conferring it, to prescribe such conditions as might be deemed fitting.\n\nA scheme of conditions to be embodied in the patent of proprietary right, and in the administration paper of the Zamindarees, was therefore drawn up, based upon the usages actually existing from ancient times; and, with one exception, the proposed arrangements were sanctioned in their entirety by the Government of India, who directed that they were to be taken as a generai model for those to be applied to the Zamindarees of the Bala ghat district and to the non-feudatory Zamindarees of Chutteesgurh.\n\nThe provision not approved as that on the death of a Zamindar, the estate should in default of a son, devolve upon his widow.\n\nThis code of succession has obtained among the Chanda Chiefs from time immemorial, and is the rule not only among them but among . all olasses of landholders in the district.\n\nIt suits especially the character of the Gond women, ...... .\n\nGovernment, however, after weighing the arguments urged, decided that it was conducive to the interests of\n\nA the Zamindarees that the succession should devolve only upon a male member of the hmily, and the clause was altered accordingly.\" Pratapshah and the 1st defendant Dayaram were descendants of Gangashah and they were related to Gangashah in the same degree.\n\nBut Pratapshah was the descendant of Bhakta, and B Dayaram was the descendant of Raju. Bhakta was the elder of the two brothers. It is recited in the Wajibul-arz that the Dhanora Zamindari is impartible, that on the death of the holder it devolv es upon his eldest son and in the absence of a legitimate or an adopted son it devolves upan the nearest male relative. Devoluti0\\11 of the Zamindari closely resembles the traditional _rule of c lineal P!i?10£~1)iture. If the holder dies leaving him surviving no son legitimate or adopted, the Zamindari devolves upon a descendant from the common ancestor of the nearest degree and in the event of there more d11scendants from the common ancestor being in the same degree, the descendant in the senior line is preferred.\n\nSuccession to the Zamindari is subject to the power D of the Governor to dispossess a person found unfit to observe the conditions of loyalty, good police administration and improve• meint and cultivation of estate. But if the nearest in the line ct\n\nsuccession is not selected the. estate must be given to the nearest\n\nheir who has the prescribed qualifications and is a successor to the Zamindar.\n\nWhen the Zamindar is removed, succession takes place as if the Zamindar so removed had died.\n\nBy the use of the E expression \"nearest male relative\" the test of propinquity alone may be applied and when there are two or more claimants equally removed from the common ancestor the eldest male member in the senior r .. ost line will be preferred. In adjudging the plaintiffs claim the Court must determine whether Pratapshah-fathor of the plaintiffs, was the ne.arest male relative of Amarshah.\n\nF On the death of Amarshah there were two male relatives :\n\nthey were Pratapshah father of the plaintiffs and the 1st defendant Dayaram. The contest between them had to be adjud$ed in the light of the rules of lineal primogeniture governing an 1mpartible estate which are well-established : Succession is governed by the rules which governs succession to partible property subject to such modifications only as flow from the character of the impartible estate; the only modification which impartibi!ity suggests in regard to the right of succession is the existence of a special rule for the selection of a sing1e heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law; and in the absence of a special custom, the rule of primogenitur\" furnishes a ground of preference.\n\n.3.34\n\nSUPREME COURT REPORT~ [1971 ]3 s.c.R .\n\nSubramanya Pandya Chokka Talawar v.\n\nSiva Subramanya A Pillai ( 1).. In determining a. single heir according to the rule of pnmogemture the class of helfS who would be entitled to succeed to the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected.\n\nCounsel for the first defendant submitted that under the terms B of the Chanda Patent the Zamindari devolves on the death of the holder on the male relative who is the senior most in age, and not on the eldest member in the senior line.\n\nThere is nothing in the Chanda Patent which supports that contention.\n\nBy the use of the expression \"nearest male relative\" the rule of primogeniture is prescribed, it is not intended to confer the. estate upon the c eldest male relative of the Zamindar.\n\nCounsel also submitted that under the terms of the Chanda Patent and the terms recorded in the Wajib-ul-arz the Governor having the right to determine inheritance and the right to remove a person who is no~ loyal or does not manage the property or does not improve the cultivation or , who is guilty of bad behaviollr or D bad admi.nistration, it must be. assumed that the holder of the Zamindari has merely a life interest and on the death of the holder, the Governor re-grants the land consistently with the rules of succession according to the law and custom amongst the memebers of the family but subject to the dominant purpose of good administration and loyalty to the Government.\n\nCounsel for the E first defendant relied upon certain circumstances which he claimed established that the interest of the Zamindar was restricted to\n\nhi~ life and on his death there was resumption and re-grant of the Zamindari by the Governor.\n\nCounsel submitted that the Zamindari was impartible and develoved upon the nearest male heir, that the sanction of the Governor was necessary for transfer, F and also for recording inheritance, that loyalty, good management and improvement of cultivation were the conditions for holding the lands and that if the behaviour of the Zamindar was found unsatisfactory or that he was not capable of good administration he was liable to be removed.\n\nOn that ground, said Counsel, the Government alone was competent to decide a dispute arising out of inheritance.\n\nBut the power to take extra- G ordinary steps to protect the interest of the Zamindari by the removed of the holder does not restrict the title of the Zamindar to a mere life interest.\n\nThe incidents of the tenure are restrictions on the. estate of the Zamindar, but those restrictions do not make him a mere life-tenant.\n\nUnder the Chanda Patent the lands of the Zamindari held by B the family were confirmed in 1867 in favour of Sitaram.\n\nOn his\n\n(1) J. L. R. 17 Mad. 316 at p. 325.\n\ndeath they devolved upon Hanmantrao.\n\nThere is no evidence that any fresh grant was made.\n\nOn the death of Hanmantrao the lands devolved npon his son Diwakarrao who died on September 8, 1932.\n\nOn the death of Diwakarrao dying without leaving any male descendant there arose a dispute between Pratapshah and Amarshah.\n\nPratapshah claimed to be the adopted son of Diwakarrao and on that ground entitled to take the Zamindari.\n\nAn inquiry was held and it was decided that Pratapshah failed to prove the adoption set up by him.\n\nOn the death of Amarshah again without leaving any male lineal descendant disputes arose.\n\nThe evidence is not clear as to whether any formal grant was issued in favour of Sitaram.\n\nThere is no evidence that recognition of the heirs of the successive Zamindars was accompanied by the issue of fresh patents or. grants.\n\nSuccession was merely 1ecognised by the revenue authorities.\n\nThe argument. that the grant was for life of the grantee is therefore not supported by the\n\nturns of the Chanda Patent, nor by the entries in the Wajib-ularz. nor by the history of the Zamindari. The right to determine inheritance it is true vests in the Governor but the power is exercisable in accordance with and not in violation of the custom of the family.\n\nIn determining the heir the Governor is not granting afresh the Zamindari; he merely determines the successor in accordance with the custom of the family.\n\nThe right of the Governor to remove a holder who is disloyal or does not manage his estate properly or does not improve cultivation or is otherwise of \"bad behaviour\" or guilty of bad administration, does not involve a conditlon that the interest of the Zamindar is only for his life.\n\nWhen a holder of the Zamindari is removed, the Governor is bound to hand over the Zamindari to the next heir in the crder of succession if the Zamindar removed had died and the heir will get the right.\n\nCounsel, then contended that in any event the decision of the Governor in 1950 declaring Dayaram to be the successor on the death of Amarshah was binding and conclusive and. could not be reopened.\n\nCounsel urged that Pratapshah and the 1st defendant Dayaram were related to the common ancestor in the same degree, and it was open to the Govurnor to select one of the two members of the family related to the last holder in the same degree, even though the person selected did not oolong to the. senior-most line.\n\nBut if succession to the Zamindari is govemed by the rule of lineal primogeniture, selection of a member of a branch in preference to a member of the senior branch would be plainly illegal.\n\nAgain, the evidence does not warrant the view that the Governor purported to pass any order in pursuan17 of the pro~ sioM of the Chanda Patent or the rules of succession rewrded m\n\nthe Wajib-ul-arz.\n\nThe order of the Governor is in the form of a memorandum address~ to the Deputy Commissioner, Chanda, dated November 9, 1951 and it states that :\n\n'\"Government are pleased to recognise Shri Dayaram Bapu son of Ballarshah Bapu Raj Gond as the Zamindar of Dhanora Zamindari in the Carchiroli tahsil of the Chanda District till the date of vesting of the Zamindari in the State Government\".\n\nThere is no evidence that the Governor made any enquiry to determine the successor of Amarshah.\n\nAn order by the Governor purporting to exercise powers under the Chanda Patent contemplates a quasi-judicial inquiry. The order does not show c that any inquiry was made for determining the rights of the c, rintesting claimants or that any notice was issued to them or that they were heard before the Governor decided the issue.\n\nThere is nothing in the pleadings in that behalf.\n\nThe Governor is invested with quasi-judicial power, and if there be a dispute, the dispute must be decided after holding an inquiry, and the decision must be reached consistantly with the rules of natural justice D and in accordance with the custom of the family.\n\nA bald statement that the \"Government are pleased to recognise Dayaram Bapu son cf Ballarsjlah Bapu as the Zamindar of Dhanora Zamindari\" does not diclose the reason for rejecting the claim of Pratapshah who according to the custom of the family was \"the nearest male relative\".\n\nThere is no evidence on the record that E the Governor was even aware that there were other claim9.!lts and if he was aware what their claims were and that the Governor had considered those claims before recognizing the claim of Dayaram.\n\nIn the absence of any evidence that the order was made by the Governor in exercise of the power conferred by the Chanda Patent it is unnecessary to consider whether any order made by r the Governor is iin exercise or the powers Of the patent e:itcludes the jurisdiction of the civil court.\n\nThe decision of Governor was apparently reached without any inquiry and was plainly. cotrary to the rules of. Hindu Law and the custom of the family m the light of which alone the Governor was by the express mandate competent to adjudicate the claim.\n\nG It is true that there were 'mutation .proceedings in regard to the Zamindari before the N aib Tahsildar Garchiroli Tahsil. The Naib Tahsilda~ by his order dated May 9, 1951 held that the dispute relating to the mutation was raised by Pratapshah, that Amarshah had died issueless, that the genealogical tree set up by Daulatshah son of Pratapshah was incorrect being unsupported H by reliable evidence, that copies of settlement of 1867 were mere statements of interested persons, that the genealogical tree filed by Dayaram resembled the genealogical tree filed by Pratapshah\n\n.4\"\n\n<--\n\nand was held to be genuine, that Amarshah had clearly admitted in his statement that Dayaram was entitled to succeed to the Zamindari after him and that Dayaram was the nearest male kinsman to the deceased Amarshah. This decision of the Naib Tahsildar proceeded upon a genealogy produced by Dayaram which on the findings of the Trial Court as well as the High Col,\\tt in this case is incorrect.\n\nThe decision of . .the Naib Tahsildar in a mutation proceeding even as a piece of evidence has. little evidentiary value when it is founded on a material piece of evidence which was untrue.\n\nThe proceedings were carried in appeal before the Deputy Commissioner. The Deputy Commissioner confirmed the order by his decision dated August 8, 1951. He also accepted the genealogy set up by Dayaram and held that there were no other nearer male descendants in the branch and that Pratapshah was one degr>e more removed 1than Dayaram. In view of the infirmity atta'chin~ to the genealogy relied upon by the Revenue Officer that decision has also little evidentiary v•lue.\n\nThe orders passed by the Governor and the revenue authorities do not exclude the jurisdiction of the civil c; ourt to decide the question of kinship.\n\nIn that view we agree with the High Court that the Zamindari originally confirmed in favour of Sitaram must according to the tenure as recorded in the Wajib-ul-arz devolve upon the first plaintiff Dawalatshah to the exclusion of the first defendant Dayaram.\n\nThe right in Malguzari land was since the, death of Amarshah extinguished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951. The Malguzarl lands are by the devise contained in the will dated December 3, 19SO given to the plaintiffs.\n\nCompensation in respect of the lands would therefore belong to the plaintiffs.\n\nBut it 1s urged that notwithstanding the devise, because of the order of the Claim Officer under Section 14 of Act 1 of 19Sl, the plain tiffs were not entitled to agitate the question of heirship. It is enacted by s. 3 of the Act that on and from a date to be specified by a notification by the State Government in .that behalf, all proprietary rightsin an estate, mahal, alienated viJlage or alienated land as .the case may be, in the area specified in the notification, ve, sting m a propretor of such es!ate, mahal, alienated village,\n\na~1enated land, or m a person havmg interest in such proprietary nght through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the\n\nState free of all encumbrances. Section 4 sets out of the ccinSequences o~ the. ves!ing of the land in the ovemment by virtue of the nottficatton issued under s. 3.\n\nSection 8 provides for assessment of compensation payable to every proprietor, who 'is\n\n3-L807SupCI/71\n\ndivested of proprietary rights.\n\nThe compensation is to be determined in accordance with the rules contained in Sch. I.\n\nSection 12 requires that a proprietor who is divested of proprietary rights by virtue of a notification issued under s. 3 shall, within such period as may be prescribed, file a statement of claim in the prescribed form and specify the particulars mentioned therein.\n\nSection 13 authorises the Compensation Officer to determine the amount of compensation.\n\nSection 14 provides :\n\n\" ( 1 ) If during the course of an enquiry by the Compensation Officer, any question is raised regarding the proprietary right in any property divested under Sec. 3 and such question has not already been determined by a court of competent jurisdiction. the Compensation Officer shall proceed to enquire summarily into the merits of such question and pass such orders as he thinks fit.\"\n\n( 2) The order of the Compensation Officer under sub-section ( 1) shall not be subject to any appeal or revision, but any party may, within two months fo•m the date of such order. institute a suit in the civil court to have the order set aside, and the decision of such court shall be binding on the Compensation Officer, but subject to the result of such suit, if any, the Compensation Officer shall be final and conclusive\".\n\nCounsel for Dayaram urged that the Compensation Officer had decided by his Order dated August 30, 1951 that compensation in respect of the M alguzari land was payable to Dayaram and since no suit was filed by the plaintiffs for setting aside that decision. the order of the Compensation Officer became final and conclusive and could :not be reopened in a suit filed more than\n\nsix years after that date.\n\nWe are unable to accept that contention.\n\nThe Compensation Officer is entitled to decide a question only regarding the proprietary right in the property divested under s. 3.\n\nHe is not concerned with determination of any question relating to a private dispute between two or more persons who make competing clailllS in the matter of compensation, relying upon their respective titles.\n\nA question regarding the proprietary rights may in ordinary course be raised only in a claim against the State, and if that claim be decided against the claimant in a summary inquiry held by the Compensation Officer, a suit to set aside the decision must be filed within two months from that date and if no suit is filed, the order becomes final and conclusive.\n\nS. 14 was enacted with a view to put an end to disputes with regard to the claims to proprietary rights which by\n\n,, ' \";';/\n\nvirtue of the notilication issued under s. 3 are extinguished.\n\nIt is not intended by an Order under section 14 to determine complicated questions of title by the adjudication of a revenue officer in a summary inquiry without even a right of appeal and to make his adjudication conclusive unless a suit be filed within two months from the date of the order.\n\nThat is also clear from the terms of s. 35(7) of Act 1 of 1951 which provides:\n\n\"The payment of compensation under this Act to the creditors of a proprietor or to the proprietor in accordance with the prescribed manner shall be a full discharge of the State Government from all liability to pay compensation for the divesting of proprietary rights, but shall not prejudice any rights in respect of the said rights to which any other person may be entitled by due process of law to enforce against the person to whom compensation has been paid as aforesaid\".\n\nThe Civil Court is declared competent to determine disputed questions with regard to title to compensation.\n\nWe agree with the High Court thats. 14 of Act 1 of 1951 does not invest the Compensation Officer with jurisdiction to determine competing claims of persons claiming proprietary rights to the property vesting in the Government by the operation of s. 3 of the Act.\n\nSection 14 is intended to determine only the proprietary rights in the land qua the State.\n\nFinally it was urge, d that the Trial Court granted Rs. 10,0001as mesne profits, and even though the High Court disallowei and her sons were parties Nos. 9 to 12. Par.ties Nos. 9 to 12 claimed compensation amount as against party No. 7, and the claim of Subasini Dasi was dismissed for default by the learned Distriot Judge under Ex. 7 dated March 3, 1939 and the result of the decision was that the claim of Kashi Nath Dawn was upheld and that of Bubasini Dasi and her sons was rejected, though on default.\n\nMr. Mukherjee, learned counsel for the appellants has urged that the same title to the property which was in dispute and deCiaed in Ex .. 7 in favour of Kashi Nath Dawn again arises for c011sideration in these proceedings. The title of Subasini Dasi having been~ rejected by the court cannot again be t.he subject matter of a ftesh adjudication. We are not inclined to accept the contention of Mr. Mukherjee that Ex. 7 operates as res-judicata in respect of the claim even of Subasini Dasi and her sons in respect of half share claimed in plot No. 9202. Though it is true that Subasini Dasi appears to have contested the claim of Kashi Nath Dawn in the proceedi:ngs leading upto Ex. 7, in our opinion, it cannot be &iid that in those proceedings the issue as to title was heard and finally decided. We have already pointed out that the claim of Subasini Dasi was dismissed for default. ·\n\nMr. Mukherjee drew our attention to certain decisioni; and urged that the decision of the Land AcquisitiOjll Court lllperlites as\n\n11es judicata; He further urged that even though the property in the previous land acquisition proceeqings may have been of a very small extent, when once the title to the compensation amount which really relates to the nature of the title to the property has been raised ll!lld decided, that decision will operate as res-judicata.\n\nThe propositicn enunciated by Mr. Mukherjee and set out .above as such are beyond controversy but we are of the opinion that the facts before us are totally different. ·\n\nWe will now advert to the decisions cited by Mr. Mukherjee.\n\nIn Raj Lakshmi Dasi and others v. Banama/i Sen a,.d others(')\n\nthis Court had to consider the question whether a previous.. decision on title in land acquisition proceedings operated as resc\n\njudicata in a subsequent suit between the same parties when the\n\n(I) [1953! S.C.R. 154.\n\nquestio; n of title was again raised. The facts in that case were briefly as follows : Certain properties were acquired in land acquisition proceedings and the; e was a triangular contest about the right to receive compensation between A and B, the rival olaimants, ll{nd C, a mortgagee from B. All the parties required the question of apportionment to be referred to the Land Acquisition Court. The court decided the ql:i, estion of title in favour of B after contest. This decision was confit; med by the High Court on appeal.\n\nThat means that the title of 8 and his mortgagee C to receive compensation amount was upheld by the Land Acquisition Court a; nd the High Court. A took the matter to the-, Privy Cou. 1cii1 which reversed the decision of the High Court and the Land Acquisition Court and the title of B and C were negatived.\n\nIn a subsequent suit between the same parties the question of title was again raised and this Court held that the decision of the Privy\n\nCounci'I opi;_rated as res-judicata in respect (lf the subsequent proceedings notwithstanding the fact that B and his mortgagee C did not appear before the Privy Council and their claim was rejected in default.\n\nConsiderable reliance has been placed by Mr.\n\nMukherjee on this decision in support of his contention that Ex. 7 though a decision given against Subasini basi and hr sons in default of tJ-..ir appearance operates res-judicata.\n\nIn our opinion, the decision of this Court referred to itbove does not assist the appellants.\n\nIt is now well established that where a dispute as to title to receive compensation amolJlllt has been refrred to a court, a decree thereon not appealed from renders the question of title res-judicata in a suit between the sa.me parties to the dispute.\n\nA party in such circumstances cannot be heard to say that the value of the subject matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it. It is true tha't the test of resjudicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases but the previous decision must be one on a title in respect of which a dispute has been 1t:ais'ed and which dispute was heard and firially decided by the court.\n\nIHs interesting to note tbat though it was urged that the decision of the Privy Council was given fo default of appearance of 'B and his mortgagee C and therefore the said decision will not operate as. res-judicata, this Court did not hold that a decision given even in the first instance in default of appearance of a party will operate as res-judicata. On the other hand, this Court categorically held that C, the mortgagee had fought out the title of mortgagor B, both before the Land. Acquisition Court and the High Court and had obtained-ajudgment in his favour after a fu!l con lest.\n\nF •\n\nR. G. DAWAN v. BHAKTABALA (Vaidialingam, J.) 349\n\nIt is the view of this Court that the mere fact that the mortgagee did not choose to appear before the Privy Cou; ncil and the decision of the Privy Council was given in the absen£e of the mortgagee, is of no consequence as the decisions of the High Court and the District Court have been given after contest. Therefore it will be seen that the decision of this Court relied on by Mr.\n\nB Mukherjee is no authority for the wide proposition that evtm if there has been no hearing and final decision by any court at any stage, after contest, the decision will operate as res-judicata.\n\nFor an earlier decision to operate as res-judicata it has been held by this Court in Pulavarthi Venkata Subba Rao and others\n\nv. Valluri Jagannadha Rao and others(') that the same must have bee, ti on a matter which was 'heard and finally decided'.\n\nIn Sheodan Singfl v. Smt. Daryao Kunwar(') the question whether a decjsion given by the High Court dismissing certain appeal on the ground of limitation or on the ground that the party had not taken ste12s to prosecute the appeal operates as resjudicata, was considered by this Court. In that cas\\l A had instituted against B two suits asserting title to a certain property. B contested those claims and also instituted two other suits to establish his title to the same property as against A.\n\nA's suits were decreed and B's suits were dismissed; B filed four appeals, two appeals against the decision given in A's suits and two appeals against the dismissal of his two suits. It is seen that all the appeals were taken oin the file of the High Court but the two appeals filed by B against the decision in the suits instituted by him were dismissed by the High Court on the groll!Ilds that one was filed beyond the period of limitation and the other for non-prosecution.\n\nAt the final hearing the' High Court took the view that the dismissal of B's two appeals, referred to above, operated as res- .iudicata in the two appeals fited by B against the decision in A's suits on the question of title to the property. It was urged before this Court on behalf of B that the dismissal of his appeals on the grounds of limitation and non-prosecution by the High Court does not operate a~ res-judicata as the High Court cannot be considered to have 'heard and finally decided' the question of title.\n\nThis contention was not accepted. This Court referred to instances where a fc, rmer suit was dismissed by a trial court for want of jurisdiction or for default of plaintiff's appearance etc. and pointed out that in respect of such class of cases, the decision :not being on merits, would not be res-judicata in a subsequent suit. It was further pointed out that none of those cQ!lSiderations apply to a case where a decision is given on the merits by the trial court and the matter is taken in appeal arul: the appeal is dismis.sed on some\n\n(I) [1964] 2 S.C.R. 310.\n\n\nA preliminary ground, like limitation or default in prhlting. It was held that such dismissal 'by an avpellate court has the effect of cql?finning the decision of the trial court on merits, and that it \"amo.unts to. the appeal being heard and finally decided on the merits whatever may be the ground for dismisse, l of the appeal\".\n\nIt will be sn from the above reasoning that in order to operate B as resjudicata, the previous decision must have been given after the matter was heard and finally decided on merits. This Court has further held that the High Court, in that case, when it dismissed the two appeals in question, though on a preliminary ground of limitation or default in printing must be considered to have heard and finally decided on merits.\n\nFar from supporting Mr. Mukherjee's contention that a decision given in default of appearance under any circumstance, operates as re§-judicata, the above decision lays down clearly that a previous decision to operate as res-judicata must be one in a case heard and finally decided on merits.\n\nTo conclude Ex. 7, i; n our opinion, does not operate as res-judicata even against the claim of Subasini Dasi and her sons inasmuch as the matter was not heard and finally decided on merits after contest by the Land Acquisition Court. We have already pointed out that if the plea of res-judicata is not accepted the decision of the two courts regarding Subasini Dasi's having in plot No. 9202 half share will have also to be sustained.\n\nIn the result the appeals fail and are dismissed. As there is no appearance for the respondents, there will be no order as to costs.\n\nV.P.S.\n\nAppeals dismissed.", "total_entities": 77, "entities": [{"text": "340\n\nRAM GOBINDA DA WAN & ORS", "label": "PETITIONER", "start_char": 1, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "RAM GOBINDA DAWAN & ORS", "offset_not_found": false}}, {"text": "BHAKTABALA", "label": "RESPONDENT", "start_char": 39, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "Bhaktabala Dasi", "offset_not_found": false}}, {"text": "Janitary 8, 1971", "label": "DATE", "start_char": 51, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "BHAKTABALA\n\nJanitary 8, 1971\n\n[J. M. SHELAT AND C. A. VAJDIALINGAM, JJ.]"}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 73, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "[1964]\n\n2 S.C.R. 310", "label": "CASE_CITATION", "start_char": 2119, "end_char": 2139, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 2219, "end_char": 2247, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "D. N. Mukher", "label": "LAWYER", "start_char": 2424, "end_char": 2436, "source": "ner", "metadata": {"in_sentence": "D. N. Mukher; ee, for the appellants (in all the appeals).", "canonical_name": "D. N. Mukherjee"}}, {"text": "Valdlaliugam", "label": "JUDGE", "start_char": 2615, "end_char": 2627, "source": "ner", "metadata": {"in_sentence": "G ..\n\nR. G. DAWAN v. BHAKTABALA (Vaidialingam, J.) 341\n\nThe Judgment of the Court was delivered by Valdlaliugam, J, Theiie two appeals on certificate are directed against the judgment of the Calcutta High Court dated March 27, 1962 in First Appeals from the Original Decree Nos."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 2707, "end_char": 2726, "source": "ner", "metadata": {"in_sentence": "G ..\n\nR. G. DAWAN v. BHAKTABALA (Vaidialingam, J.) 341\n\nThe Judgment of the Court was delivered by Valdlaliugam, J, Theiie two appeals on certificate are directed against the judgment of the Calcutta High Court dated March 27, 1962 in First Appeals from the Original Decree Nos."}}, {"text": "Mouza Asansol Municipality were acquired under the Land Acquisition Act", "label": "STATUTE", "start_char": 2890, "end_char": 2961, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 2986, "end_char": 2990, "source": "regex", "metadata": {"linked_statute_text": "Mouza Asansol Municipality were acquired under the Land Acquisition Act", "statute": "Mouza Asansol Municipality were acquired under the Land Acquisition Act"}}, {"text": "December 13, 1947", "label": "DATE", "start_char": 3025, "end_char": 3042, "source": "ner", "metadata": {"in_sentence": "The notification under s. 4 of the Land Acquisition Act dated December 13, 1947 was published in the Calcutta Gazette of 25th December, 194 7."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 3128, "end_char": 3132, "source": "regex", "metadata": {"linked_statute_text": "Mouza Asansol Municipality were acquired under the Land Acquisition Act", "statute": "Mouza Asansol Municipality were acquired under the Land Acquisition Act"}}, {"text": "December 30, 1947", "label": "DATE", "start_char": 3139, "end_char": 3156, "source": "ner", "metadata": {"in_sentence": "The declaration under s. 6 dated December 30, 1947 was published in the Calcutta Gazette on 8th January, 1948."}}, {"text": "8th January, 1948", "label": "DATE", "start_char": 3198, "end_char": 3215, "source": "ner", "metadata": {"in_sentence": "The declaration under s. 6 dated December 30, 1947 was published in the Calcutta Gazette on 8th January, 1948."}}, {"text": "Bhaktabala Dasi", "label": "RESPONDENT", "start_char": 3492, "end_char": 3507, "source": "ner", "metadata": {"in_sentence": "The entire compensation in respect of this plot was directed to be paid to Bhaktabala Dasi, the sole respondent in Civil Appeal No.", "canonical_name": "Bhaktabala Dasi"}}, {"text": "Mouza Asansol Municipality", "label": "GPE", "start_char": 3593, "end_char": 3619, "source": "ner", "metadata": {"in_sentence": "9202 of Mouza Asansol Municipality, the Land Acquisition Officer awarded as compensation a sum of Rs."}}, {"text": "Subasini Dasi", "label": "OTHER_PERSON", "start_char": 3849, "end_char": 3862, "source": "ner", "metadata": {"in_sentence": "This entire amount of compensation was directed to b~\n\npaid to Bhaktabala Dasi and her sister Subasini Dasi.", "canonical_name": "Subasi.ni Dasi"}}, {"text": "Bhaktabala Dasi", "label": "RESPONDENT", "start_char": 3890, "end_char": 3905, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that Bhaktabala Dasi is the first respondent and on the death of Subasini Dasi, her son Sunil Kumar Roy, who has been impleaded in the proceedings is the second respondent in Civil Appeal No.", "canonical_name": "Bhaktabala Dasi"}}, {"text": "Sunil Kumar Roy", "label": "OTHER_PERSON", "start_char": 3973, "end_char": 3988, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that Bhaktabala Dasi is the first respondent and on the death of Subasini Dasi, her son Sunil Kumar Roy, who has been impleaded in the proceedings is the second respondent in Civil Appeal No."}}, {"text": "Kashi Nath Dawn", "label": "PETITIONER", "start_char": 4165, "end_char": 4180, "source": "ner", "metadata": {"in_sentence": "Before the Land Acquisition Collector, in respect of both these plots, one Kashi Nath Dawn claimed title to the land and as such to the er.tire compensation amount.", "canonical_name": "Kashi\n\nA Nath Dawn"}}, {"text": "Panchanan Roy", "label": "OTHER_PERSON", "start_char": 4414, "end_char": 4427, "source": "ner", "metadata": {"in_sentence": "The case of Kashi Nath Dawn was that both the plots of land belonged to Panchanan Roy.", "canonical_name": "Panchanan :Rov"}}, {"text": "Sutiasini Dasi", "label": "OTHER_PERSON", "start_char": 4440, "end_char": 4454, "source": "ner", "metadata": {"in_sentence": "husband of Sutiasini Dasi, against whom a money."}}, {"text": "J atin Kumar Roy", "label": "OTHER_PERSON", "start_char": 4510, "end_char": 4526, "source": "ner", "metadata": {"in_sentence": "decree had been obtained b} one J atin Kumar Roy."}}, {"text": "Subordinate Judge's Court, Asansol", "label": "COURT", "start_char": 4594, "end_char": 4628, "source": "ner", "metadata": {"in_sentence": "Subordinate Judge's Court, Asansol), the deiiree-h0ider &ought these t\":'o items and certain other properties to sale."}}, {"text": "November 27. 1930", "label": "DATE", "start_char": 4853, "end_char": 4870, "source": "ner", "metadata": {"in_sentence": "The sale was confirmed on November 27."}}, {"text": "December .10. 1930", "label": "DATE", "start_char": 4916, "end_char": 4934, "source": "ner", "metadata": {"in_sentence": "n December .10."}}, {"text": "Kash1 Nath Dawn", "label": "PETITIONER", "start_char": 5109, "end_char": 5124, "source": "ner", "metadata": {"in_sentence": "case of Bhaktabala Dasi, who alone contested the claim of Kash1 Nath Dawn was briefly as follows : Panchanan Roy had\n\nno title to the properties and that on the other , hand they belonged to Ramanugraha Roy, who died leaving his widow Manmohini and furee daughters, Santabala, Subasini and Bhaktabala.", "canonical_name": "Kashi\n\nA Nath Dawn"}}, {"text": "Ramanugraha Roy", "label": "OTHER_PERSON", "start_char": 5242, "end_char": 5257, "source": "ner", "metadata": {"in_sentence": "case of Bhaktabala Dasi, who alone contested the claim of Kash1 Nath Dawn was briefly as follows : Panchanan Roy had\n\nno title to the properties and that on the other , hand they belonged to Ramanugraha Roy, who died leaving his widow Manmohini and furee daughters, Santabala, Subasini and Bhaktabala."}}, {"text": "Manmohini", "label": "OTHER_PERSON", "start_char": 5286, "end_char": 5295, "source": "ner", "metadata": {"in_sentence": "case of Bhaktabala Dasi, who alone contested the claim of Kash1 Nath Dawn was briefly as follows : Panchanan Roy had\n\nno title to the properties and that on the other , hand they belonged to Ramanugraha Roy, who died leaving his widow Manmohini and furee daughters, Santabala, Subasini and Bhaktabala.", "canonical_name": "Manmohi.ni widow"}}, {"text": "Santabala", "label": "OTHER_PERSON", "start_char": 5317, "end_char": 5326, "source": "ner", "metadata": {"in_sentence": "case of Bhaktabala Dasi, who alone contested the claim of Kash1 Nath Dawn was briefly as follows : Panchanan Roy had\n\nno title to the properties and that on the other , hand they belonged to Ramanugraha Roy, who died leaving his widow Manmohini and furee daughters, Santabala, Subasini and Bhaktabala."}}, {"text": "Subasini", "label": "OTHER_PERSON", "start_char": 5328, "end_char": 5336, "source": "ner", "metadata": {"in_sentence": "case of Bhaktabala Dasi, who alone contested the claim of Kash1 Nath Dawn was briefly as follows : Panchanan Roy had\n\nno title to the properties and that on the other , hand they belonged to Ramanugraha Roy, who died leaving his widow Manmohini and furee daughters, Santabala, Subasini and Bhaktabala.", "canonical_name": "Subasi.ni Dasi"}}, {"text": "Bhaktabala", "label": "RESPONDENT", "start_char": 5341, "end_char": 5351, "source": "ner", "metadata": {"in_sentence": "case of Bhaktabala Dasi, who alone contested the claim of Kash1 Nath Dawn was briefly as follows : Panchanan Roy had\n\nno title to the properties and that on the other , hand they belonged to Ramanugraha Roy, who died leaving his widow Manmohini and furee daughters, Santabala, Subasini and Bhaktabala.", "canonical_name": "Bhaktabala Dasi"}}, {"text": "Ramai", "label": "OTHER_PERSON", "start_char": 5369, "end_char": 5374, "source": "ner", "metadata": {"in_sentence": "On the death of Ramai:mgraha Roy, his widqw."}}, {"text": ":mgraha Roy", "label": "OTHER_PERSON", "start_char": 5374, "end_char": 5385, "source": "ner", "metadata": {"in_sentence": "On the death of Ramai:mgraha Roy, his widqw."}}, {"text": "Marunohini", "label": "OTHER_PERSON", "start_char": 5397, "end_char": 5407, "source": "ner", "metadata": {"in_sentence": "Marunohini succeeded to the property as life estate holder.", "canonical_name": "Manmohi.ni widow"}}, {"text": "Manmohini B Panchanan Roy", "label": "OTHER_PERSON", "start_char": 5609, "end_char": 5634, "source": "ner", "metadata": {"in_sentence": "As Santabala died shortly after\n\nher father's death, the properties devolved on the, other two sisters namely, Subasini and Bhaktabala, on the death of Manmohini B Panchanan Roy had married Santabala and on her death he married her sister Subasini."}}, {"text": "Subasini. Panchanain Roy", "label": "OTHER_PERSON", "start_char": 5696, "end_char": 5720, "source": "ner", "metadata": {"in_sentence": "As Santabala died shortly after\n\nher father's death, the properties devolved on the, other two sisters namely, Subasini and Bhaktabala, on the death of Manmohini B Panchanan Roy had married Santabala and on her death he married her sister Subasini."}}, {"text": "Mouza Asansol", "label": "OTHER_PERSON", "start_char": 5959, "end_char": 5972, "source": "ner", "metadata": {"in_sentence": "In the settlement proceedings of 1918-21 he surreptitiously got his name recorded as owner of one half share in the estate of his father-in-law in Mouza Asansol aind of the entire interest in Mouza Asansol Municipality.", "canonical_name": "Mouza Asansol Mwiicipality"}}, {"text": "Manmohiini Dasi", "label": "OTHER_PERSON", "start_char": 6111, "end_char": 6126, "source": "ner", "metadata": {"in_sentence": "Panchanan Roy was never in possession and enjoyment of the properties whereas Manmohiini Dasi during her lifo time and on her death her daughter Subasini and Bhaktabala were in possession and enjoyment."}}, {"text": "Bhaktabaia Dasi", "label": "RESPONDENT", "start_char": 6433, "end_char": 6448, "source": "ner", "metadata": {"in_sentence": "It was D on this bas.is that Bhaktabaia Dasi claimed exclusive title to plot No.", "canonical_name": "Bhaktabala Dasi"}}, {"text": "Additional District Judge, Burdwan", "label": "COURT", "start_char": 6901, "end_char": 6935, "source": "ner", "metadata": {"in_sentence": "E In view of the dispute regarding right to receive the compe11sation amount, the Land Acquisition Collector-referred the matter to the Additional District Judge, Burdwan for determination of the said dispute."}}, {"text": "Mouza Asainsol", "label": "OTHER_PERSON", "start_char": 7127, "end_char": 7141, "source": "ner", "metadata": {"in_sentence": "With re.ference to plot No\"936 of Mouza Asainsol, the learned Additional District Judge held that Panchanan Roy had wrongfully and fraudulently got recorded his name as owner of\n\nthe half share when he was managing the property on behalf of his mother-in-law Manmohi.ni widow of Ramanugraha Roy.", "canonical_name": "Mouza Asansol Mwiicipality"}}, {"text": "Manmohi.ni widow", "label": "OTHER_PERSON", "start_char": 7352, "end_char": 7368, "source": "ner", "metadata": {"in_sentence": "With re.ference to plot No\"936 of Mouza Asainsol, the learned Additional District Judge held that Panchanan Roy had wrongfully and fraudulently got recorded his name as owner of\n\nthe half share when he was managing the property on behalf of his mother-in-law Manmohi.ni widow of Ramanugraha Roy.", "canonical_name": "Manmohi.ni widow"}}, {"text": "Mouza Asansol Municipality", "label": "ORG", "start_char": 7709, "end_char": 7735, "source": "ner", "metadata": {"in_sentence": "120 of 1929, the Katiyans and the maps had been published and they conclusively .show that Mouza Asansol Municipality was a Mouza different from Mouza Asansol with different J.L. number."}}, {"text": "Kashi Nath", "label": "PETITIONER", "start_char": 8079, "end_char": 8089, "source": "ner", "metadata": {"in_sentence": "The Court did not also accept the claim of Kashi Nath\n\n,. •", "canonical_name": "Kashi\n\nA Nath Dawn"}}, {"text": "Mouza Asansol", "label": "GPE", "start_char": 8312, "end_char": 8325, "source": "ner", "metadata": {"in_sentence": "• \\\n\nR. G. DAWAN v. BHAKTABALA (Vaidia/ingam, J.) 343\n\nDawn that for the purpose of C. S. operation only the lands within Mouza Asansol Municipality were separately recorded and that they were also i!ncluded within Mouza Asansol."}}, {"text": "Kashi Nath Dawn", "label": "PETITIONER", "start_char": 8841, "end_char": 8856, "source": "ner", "metadata": {"in_sentence": "Kashi Nath Dawn filed two appeals before the Calcutta High Court, being First Appeals Nos.", "canonical_name": "Kashi\n\nA Nath Dawn"}}, {"text": "Panchanan R\"i", "label": "OTHER_PERSON", "start_char": 10249, "end_char": 10262, "source": "ner", "metadata": {"in_sentence": "The High Court further held that in the court sale, Kashi Nath Dawn had purchased the half share owned by Panchanan R\"i:iy in Mouza Asansol and as such he had title to half share in plot No.", "canonical_name": "Panchanan :Rov"}}, {"text": "Kashi\n\nA Nath Dawn", "label": "PETITIONER", "start_char": 11011, "end_char": 11029, "source": "ner", "metadata": {"in_sentence": "9202 the High Court areed with the Land Acquisition Court and held that in the court sale, Kashi\n\nA Nath Dawn had not purchased any property in Mouza Asansol Municipality and therefore he had no title thereto.", "canonical_name": "Kashi\n\nA Nath Dawn"}}, {"text": "N. Mukherjee", "label": "LAWYER", "start_char": 11824, "end_char": 11836, "source": "ner", "metadata": {"in_sentence": "Mr. Dr, N. Mukherjee, learned counsel for the appellants, who, as we have stated earlier, are the legal representatives of deceased Kashi Nath Dawn, urged that the High Court .. should h!!ve acctheptefd1 t 1 he pleahade bthy' Kas1 hi NThath Dawn that hede whas enhtitled D ( to e u owners 1p of 1s p ot.", "canonical_name": "N. Mukherjee"}}, {"text": "Panchanan :Rov", "label": "OTHER_PERSON", "start_char": 12591, "end_char": 12605, "source": "ner", "metadata": {"in_sentence": "settlement registers, the full rights of Panchanan :Rov in plot No.", "canonical_name": "Panchanan :Rov"}}, {"text": "mchanan F Roy", "label": "OTHER_PERSON", "start_char": 12842, "end_char": 12855, "source": "ner", "metadata": {"in_sentence": "No doubt, the learned District Judge held tht P; mchanan F Roy fraudulently got his name."}}, {"text": "Mauza Asansol", "label": "OTHER_PERSON", "start_char": 13160, "end_char": 13173, "source": "ner", "metadata": {"in_sentence": "16 of Mauza Asansol which is also a khatian in respect of the permanent ten- G ute Jagir Nakari Ramakrishna Roy."}}, {"text": "Jagir Nakari Ramakrishna Roy", "label": "OTHER_PERSON", "start_char": 13237, "end_char": 13265, "source": "ner", "metadata": {"in_sentence": "16 of Mauza Asansol which is also a khatian in respect of the permanent ten- G ute Jagir Nakari Ramakrishna Roy."}}, {"text": "Umesh Chandra Roy", "label": "OTHER_PERSON", "start_char": 13464, "end_char": 13481, "source": "ner", "metadata": {"in_sentence": "A the holders are divided into 17 groups but the holders of 'ka' group were described as Manmohini wife of Ramanugraha Roy and Panchanan Roy s/o Umesh Chandra Roy."}}, {"text": "Kashj Nath Dawn", "label": "PETITIONER", "start_char": 13897, "end_char": 13912, "source": "ner", "metadata": {"in_sentence": "A.\n\nIt is H on this basis that tl\\e High Court differing from the learned Dis- \\ trict Judge held that Panchanan Roy had been the owner of half '\n\n\\ H -\n\nR. G. DAWAN v. BHAKTABALA (Vaid1'alingam, l.) 345\n\nshare in thiS plot and Kashj Nath Dawn .as purchaser of this halt share of Panchanan Roy was entitled to half of the compensation pmount.", "canonical_name": "Kashi\n\nA Nath Dawn"}}, {"text": "Mukherjee", "label": "LAWYER", "start_char": 14016, "end_char": 14025, "source": "ner", "metadata": {"in_sentence": "Mr. Mukherjee was not able to satisfi as to how Kashi Nath Dawn was entitled .to full ownership of plot No.", "canonical_name": "N. Mukherjee"}}, {"text": "Mouza Asansol Mwiicipality", "label": "OTHER_PERSON", "start_char": 14297, "end_char": 14323, "source": "ner", "metadata": {"in_sentence": "9202 of Mouza Asansol Mwiicipality Mr.\n\nD. N. Mukherjee raised two coPtentions: (i) the Hjgh Court was.", "canonical_name": "Mouza Asansol Mwiicipality"}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 14329, "end_char": 14344, "source": "ner", "metadata": {"in_sentence": "9202 of Mouza Asansol Mwiicipality Mr.\n\nD. N. Mukherjee raised two coPtentions: (i) the Hjgh Court was.", "canonical_name": "D. N. Mukherjee"}}, {"text": "Pancha.nan Roy", "label": "OTHER_PERSON", "start_char": 14934, "end_char": 14948, "source": "ner", "metadata": {"in_sentence": "We have already pointed out that even the Land Acquisition Court held that Kashi Nath Dawn did not purchase in the court sale any property of\n\nPancha.nan Roy in Mouza Asansol Municipality, The High Court has agreed with this finding.", "canonical_name": "Panchanan :Rov"}}, {"text": "Mouza Asansol Mni cipality", "label": "ORG", "start_char": 16119, "end_char": 16145, "source": "ner", "metadata": {"in_sentence": "The High Court has gone more elaborately into this aspect than the District Court and held that Kashi Nath Dawn did not purchase in the court auction any property of Panchanan Roy in Mouza Asansol Mni cipality."}}, {"text": "Certain other plots in Mouza Asansol Municipality were acquired under the Land Acquisition Act", "label": "STATUTE", "start_char": 16558, "end_char": 16652, "source": "regex", "metadata": {}}, {"text": "Subasi.ni Dasi", "label": "OTHER_PERSON", "start_char": 16855, "end_char": 16869, "source": "ner", "metadata": {"in_sentence": "That claim was resisted by Subasi.ni Dasi and her sons and they claimed in turn to be entitled to the compensation amount. .", "canonical_name": "Subasi.ni Dasi"}}, {"text": "Kashi Nath' Dawn", "label": "PETITIONER", "start_char": 17004, "end_char": 17020, "source": "ner", "metadata": {"in_sentence": "But the Land Acquisition Court upheld the claim of Kashi Nath' Dawn and that decree has become final.", "canonical_name": "Kashi\n\nA Nath Dawn"}}, {"text": "Kashi Nath D", "label": "PETITIONER", "start_char": 17080, "end_char": 17092, "source": "ner", "metadata": {"in_sentence": "7 the title of Kashi Nath D; iwn in the properties of Monza Asansol Municipality having been recognised, it was no longer open to the respondtmts herein to urge that Kashi Nath Dawn had no title to plot No.", "canonical_name": "Kashi\n\nA Nath Dawn"}}, {"text": "Monza Asansol Municipality", "label": "ORG", "start_char": 17119, "end_char": 17145, "source": "ner", "metadata": {"in_sentence": "7 the title of Kashi Nath D; iwn in the properties of Monza Asansol Municipality having been recognised, it was no longer open to the respondtmts herein to urge that Kashi Nath Dawn had no title to plot No."}}, {"text": "Monza Asansol Municipality", "label": "GPE", "start_char": 17299, "end_char": 17325, "source": "ner", "metadata": {"in_sentence": "9202, which is situated in Monza Asansol Municipality."}}, {"text": "Mukherjee", "label": "LAWYER", "start_char": 18056, "end_char": 18065, "source": "ner", "metadata": {"in_sentence": "This plea of res-judicata raised by Mr.\n\nMukherjee has to be approached from !", "canonical_name": "N. Mukherjee"}}, {"text": "R. G. DAWAN", "label": "JUDGE", "start_char": 19503, "end_char": 19514, "source": "ner", "metadata": {"in_sentence": "There appear to have been disputes amongst various parties with regard to right to receive coll}pensa-\n\n..,,,,\n\nR. G. DAWAN r. BHAKTABALA (Vaidlalingam, J.) 347\n\ntion and therefore the matter was referred to the Court of the District Judge."}}, {"text": "Vaidlalingam", "label": "JUDGE", "start_char": 19530, "end_char": 19542, "source": "ner", "metadata": {"in_sentence": "There appear to have been disputes amongst various parties with regard to right to receive coll}pensa-\n\n..,,,,\n\nR. G. DAWAN r. BHAKTABALA (Vaidlalingam, J.) 347\n\ntion and therefore the matter was referred to the Court of the District Judge."}}, {"text": "SubilSini", "label": "PETITIONER", "start_char": 20001, "end_char": 20010, "source": "ner", "metadata": {"in_sentence": "7 a.nd\n\nSubilSini D11J>i and her sons were parties Nos."}}, {"text": "March 3, 1939", "label": "DATE", "start_char": 20237, "end_char": 20250, "source": "ner", "metadata": {"in_sentence": "7 dated March 3, 1939 and the result of the decision was that the claim of Kashi Nath Dawn was upheld and that of Bubasini Dasi and her sons was rejected, though on default."}}, {"text": "Bubasini Dasi", "label": "OTHER_PERSON", "start_char": 20343, "end_char": 20356, "source": "ner", "metadata": {"in_sentence": "7 dated March 3, 1939 and the result of the decision was that the claim of Kashi Nath Dawn was upheld and that of Bubasini Dasi and her sons was rejected, though on default.", "canonical_name": "Subasi.ni Dasi"}}, {"text": "Subasini basi", "label": "OTHER_PERSON", "start_char": 23602, "end_char": 23615, "source": "ner", "metadata": {"in_sentence": "7 though a decision given against Subasini basi and hr sons in default of tJ-..ir appearance operates res-judicata.", "canonical_name": "Subasi.ni Dasi"}}, {"text": "B Mukherjee", "label": "LAWYER", "start_char": 25604, "end_char": 25615, "source": "ner", "metadata": {"in_sentence": "Therefore it will be seen that the decision of this Court relied on by Mr.\n\nB Mukherjee is no authority for the wide proposition that evtm if there has been no hearing and final decision by any court at any stage, after contest, the decision will operate as res-judicata.", "canonical_name": "N. Mukherjee"}}, {"text": "[1964] 2 S.C.R. 310", "label": "CASE_CITATION", "start_char": 28090, "end_char": 28109, "source": "regex", "metadata": {}}]} {"document_id": "1971_3_351_356_EN", "year": 1971, "text": "INDIAN ALUMINIUM CO. LTD. v.\n\nCOMMISSIONER OF INCOME TAX, WEST B.ENGAL\n\nJanuary 12, 1971\n\n(K. S. HEGDE AND A. N. GROVEi\\, JJ.J\n\nIncome Tax Act, 1922, s. !0(2)(xi) arrd I0(2)(xv)-Fee paid to foreign collabqrator for technical know.fio}v-No provision in contra.cl for payment of tax on fee by Indian Company-Assessee held in default and tcu recovered frofn it-If allowable as business expenditu1'e and deductible.\n\nThe appellant Company which was engaged in the manufacture of aluminium products, entered into a contract with another company in Montreal, Canada, for the supply of technical know-how etc. for the development of its production. This agreement provided for payment of a retainer fee by the appellant on an annual basis and there was no condition or stipulation that the fee would be payable by the assessee without deduction of income tax. In 1951 the Income Tax Officer treated the assessee as being in default under section 18(7) of the Income Tax Act, 1922 in respect of a sum of Rs. 1,24,199 which the appellant was\n\nhable to deduct from the payments made to the Montreal Company under the provisions of sections 18(3-A), 18(3-B) and. 18(3-C). The appellant was required to pay this amount and the Montreal Company refused to accept its claim fdr reimbursement.\n\nThe appellant claimed the amount as a deduction from its business income under S. 10( 1) or 10(2) (xi) or\n\nI0(2)(xv) of the Act. Although this claim was allowed by the Appellate Assistant Commissioner. the Tribunal, in appeal. held that the amount in\n\nque, stion was neither expenditure incidental to the business nor was it wnolly and exclusively laid out for that purpose: and nor was it claimabie as a ba; I debt in view of the fact that it had not been incurred as a trade debt in the course of the business.\n\nThe High Court. upon a reference made to it, held against the a>i.essee. On appeal to this Court,\n\nF HELD : Dismissing the appeal,\n\n(i) It is well settled that a business or trading debt should spring directly from .the carrying on of a business or trade anu shoulu be incidental to it and it cannot be just any loss sustained by the assessee even if it has some Connection with his business. [355 E]\n\nAlthough the retamer fees were paid by the assessee to the Montreal Company for technical assistance which had a connection with the bu_siness of the assessee it was not possible to regard the amount which the assessee was bound to deduct from the payment made to the Montreal Company under s. 18(3-B) of the Act and which it failed to recover from that company, as a debt which could be deducted under s. !0(2)(xi).\n\nThe debt was not incidental to the business because it arose out of noncompliance with the provisions of the Act.\n\nThe payment which the assessee made to the income tax authorities and which it failed to recover from the Montreal Company was . more a matter of commercial expediency and proceeded out of motives of business relationship, because the assessee was anxious not to annoy or offend the Montreal Company so as to ayail of its continued teehnial assistance and advice. [355 G]\n\nA. V. Thomas & Co. Ltd. v. Commissioner of Income Tax,. 48 I.T.R. 67 at. p. 75, referred to.\n\n(ii) The assessee was presumed to kriow the relevant, provisions of lhe Act at the time when it entered -into an agreement with the Montreal Company.\n\nThere was no provision in the agreement with the Montreal Company which created a contractual obligation on the assessee to make payment of the taxes deductible under s. 18(3, B). A payment made under a statutory obligation, because the assessee was in default, could not constitute expenditure laid out .for the purpose of the assessee's business and was not tlierefore deductible under s. 10(2) (xv). [356 El\n\nCommissioner of Income Tax, Bombay v. M/s. Pannalal Narotamdas & Co, Bombay, 1969 1 J.T.J. 32, distinguished.\n\nCIVIL APPELLATE JURISDICTION : 1967.\n\nCivil Appeal No. 24 of\n\nAppeal by special leave from the judgment and order dated April 27, 1966 of the Calcutta High Court in Income-tax , Reference No. 90 of 1962. ·\n\nM. C. Chag/a, S. R. Banerjee, N. N. 'Goswami and S. N.\n\nMukherjee, for the appellants.\n\nJagad{sh Swarup, Solicitor-General, Ram Panjavani and R. N.\n\nSachthey, for the respondent.\n\nThe Judgment of the Coun was delivered by Grover, J. This is an appeal by special leave from a judgment of the Calcutta High Court answering the following question referred to it under s. 66 (I) of the Indian Income-tax Act, 1922, hereinafter called the \"Act\" in the negative and agains_t the assessee :-\n\n\"Whether, on the facts and in the circumstances of the case, the sum of Rs. 1,24, 1991was deductible from the business income of the assessee either under Section 10(1) or 10(2) (xi) or 10(2)(xv) of the Incometax Act?\"\n\nThe assessee is •a public limited company having its registered -0ffice at Calcu'lta. Its principal business consists of manufacturing aluminium ingots, sheets and such other products from aluminium.\n\nThere is another company known by the name of Alumi-· nium Laboratories Limited, Montreal, i; n Canada, hereinafter called the \"Montreal Company\", which provided the assessee with technical kaow-how, engineering services etc. regarding development of a production of the goods: An agreement was entered into on January 31, 1947 between the-Montreal Company and the assessee. The agreement provided for payment of a retainer fee on an annual basis. There was no condition or stipulation\n\n~ ''\n\nthat the fee would be payable by the assessee without deduction. of tax under the provisions of the Act.\n\nThe assessee credited a total fee of Rs. 2,50,808/- in favour of the Montreal Company for a period of seven years between the accounting year ending September 30, 1944 and September 30, 1950.\n\nB In 1951 the Income-tax Officer treated the assessee as being in default under s. 18(7) of the Act in respect of the amount of tax wiJich the assessee was liable to deduct from the payments made to the Montreal Company under the provisions of ss, 18(3-A), 18(3-B) and 18(3-C) of the Act. The amount of tax c which was found to be payable by the assessee came to a toal sum of Rs. 1,24, l 991-. The assessec wrote to the Montreal Company asking for reimburBC111ent of the said amount.\n\nThe Montreat Company, however, refused to accept the assessee's claim for reimbursement by means <)f a letter dated August 3, 1954. The assessee wrote off the amount of Rs. 1,24,199/- during the rele- D vant previous year ending on December 31, 1954. The assessee appealed to the Appellate Assistant Commissioner who allowed its claim.\n\nThe department preferred an appeal to the Tribunal which held that the amount in question was neither expenditure incidental to the business nor was it wholly and exclusively laid' out for that purpose nor was it claimable as a bad debt in view of the fact that it had not been incurred as a trade debt in the E , course of the business.\n\nThe departmental appeal was therefore allowed and the order of the Income-tax Officer was restored.\n\nThe High Court was of the view that there was a nexus betwp payment and the business of the assessee inasmuch as it had an indirect bearing upon the technical aid which the assessee l):ad\n\nobtained from the Montrealompany but was of the opinion F . that even if the payment had some connection with the business it could not be said to be incidental to it as the liability could have been avoided by the assessee if it had deducted at the source the required amount of income-tax from the retainer fee which was payable to the Montreal Company.\n\nThe High Court also considered the question whether the amount paid to the Montreal G Company could be treated as a bad debt 'within the meaning of s. 10(2) (xi) but came to the conclusion that as it had not been advanced as a trading debt in the course of business it was not deductible as a bad debt. According to the High Court the provisions of s. 18(3-B) had not been complied with and since the statutory provisions had been disobeyed and as a result thereof H the assessee had incurred a liability it could not be construed as a part of business expense within the meaning of s. 10(2)(xv} nor could it be said that such an expense was wholly and exclusively laid out for the purpose of the business. 9-L807SuP.Cl/71\n\n,._ /\n\nIn order to decide the contentions raised before us it is neces- :sary to refer only to ss. 18 ( 3 -B) and 18 ( 7) of the Act as they .stood at the material time :- ·\n\nS. 18(3-B)-\"A, ny person responsible for paying to a person not resident in the territories any interest not being \"interest on securities\" or any other sum chargeable under the provisions of this Act shall, at the time of payment, unless he is himself liable to pay any income-tax an._d super-tax thereon as an agent, deduct income-tax at the maximum rate. and super-tax at the rate applicable to a company or in accordance with the provisions of sub-clause (b) of sub section (1) of section 17, as the case may be :\n\nProvided tht where the person not resident. is. not a company, the proviso to sub-section (2B) shall apply to the deduction of ineome-tax and super-tax under this sub-section as it applies to the mbay High Court in Commissioner of Income-tax, Bombay v. M/s. Pamrplµ/\n\nNarotamdas & Co. Bombay('') in which it was @Id that the amount of penalty imposed not for the fault of the assessee but because he had to pay the same for the purpose of getting the goods released from the Customs Aut!lorities could be regarded as wholly and exclusively incurred for the purpose of hise business.\n\nWe consider it umlecessary to prnnolljllce on the correctness of this decision. The point which came up for consideration there was altogether different and it can afford no assistance to us in determining whether B!Il amount which an assessee had to pay by virtue of the provisions of the Ast could be regarded as an expense incurred wholly and exclusively for the purpose of the business.\n\nThe assessee was presumed to know the relevant provisions of the Act at the time when it entered into an agreement with the Montreal Company. There was no provision in the agreement with the Montreal Company which created a contractual obligation on the assessP.e to make payment of the 1axes deductible under s. 18(3-B). At any rate it is difficult to understand how a payment made under a statutory obligation because the assessee was in default, could constitute expenditure laid out for the purpose of the assessee's business.\n\nWe find no reason or justification to interfere with the answer returned by the High Court with the result that the appeal fails and it is dismissed with costs.\n\nR.K.P.S.\n\nAppeal dismissed.\n\n(I) [1969] 1 L.T.J. 3~.", "total_entities": 44, "entities": [{"text": "INDIAN ALUMINIUM CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "INDIAN ALUMINIUM CO. LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME TAX, WEST B.ENGAL", "label": "RESPONDENT", "start_char": 30, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, WEST BENGAL", "offset_not_found": false}}, {"text": "January 12, 1971", "label": "DATE", "start_char": 72, "end_char": 88, "source": "ner", "metadata": {"in_sentence": "v.\n\nCOMMISSIONER OF INCOME TAX, WEST B.ENGAL\n\nJanuary 12, 1971\n\n(K. S. HEGDE AND A. N. GROVEi\\, JJ.J\n\nIncome Tax Act, 1922, s. !"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 91, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 128, "end_char": 148, "source": "regex", "metadata": {}}, {"text": "Montreal", "label": "GPE", "start_char": 543, "end_char": 551, "source": "ner", "metadata": {"in_sentence": "The appellant Company which was engaged in the manufacture of aluminium products, entered into a contract with another company in Montreal, Canada, for the supply of technical know-how etc."}}, {"text": "Canada", "label": "GPE", "start_char": 553, "end_char": 559, "source": "ner", "metadata": {"in_sentence": "The appellant Company which was engaged in the manufacture of aluminium products, entered into a contract with another company in Montreal, Canada, for the supply of technical know-how etc."}}, {"text": "section 18(7)", "label": "PROVISION", "start_char": 931, "end_char": 944, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act, 1922", "statute": "Income Tax Act, 1922"}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 952, "end_char": 972, "source": "regex", "metadata": {}}, {"text": "Montreal Company", "label": "ORG", "start_char": 1080, "end_char": 1096, "source": "ner", "metadata": {"in_sentence": "1,24,199 which the appellant was\n\nhable to deduct from the payments made to the Montreal Company under the provisions of sections 18(3-A), 18(3-B) and."}}, {"text": "sections 18(3-A), 18(3-B)", "label": "PROVISION", "start_char": 1121, "end_char": 1146, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "S. 10( 1)", "label": "PROVISION", "start_char": 1359, "end_char": 1368, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "s. 18(3-B)", "label": "PROVISION", "start_char": 2487, "end_char": 2497, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18(3, B)", "label": "PROVISION", "start_char": 3514, "end_char": 3525, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 3735, "end_char": 3743, "source": "regex", "metadata": {"statute": null}}, {"text": "S. R. Banerjee", "label": "LAWYER", "start_char": 4091, "end_char": 4105, "source": "ner", "metadata": {"in_sentence": "M. C. Chag/a, S. R. Banerjee, N. N. 'Goswami and S. N.\n\nMukherjee, for the appellants."}}, {"text": "N. N. 'Goswami", "label": "LAWYER", "start_char": 4107, "end_char": 4121, "source": "ner", "metadata": {"in_sentence": "M. C. Chag/a, S. R. Banerjee, N. N. 'Goswami and S. N.\n\nMukherjee, for the appellants."}}, {"text": "S. N.\n\nMukherjee", "label": "LAWYER", "start_char": 4126, "end_char": 4142, "source": "ner", "metadata": {"in_sentence": "M. C. Chag/a, S. R. Banerjee, N. N. 'Goswami and S. N.\n\nMukherjee, for the appellants."}}, {"text": "Jagad{sh Swarup", "label": "LAWYER", "start_char": 4165, "end_char": 4180, "source": "ner", "metadata": {"in_sentence": "Jagad{sh Swarup, Solicitor-General, Ram Panjavani and R. N.\n\nSachthey, for the respondent."}}, {"text": "Ram Panjavani", "label": "LAWYER", "start_char": 4201, "end_char": 4214, "source": "ner", "metadata": {"in_sentence": "Jagad{sh Swarup, Solicitor-General, Ram Panjavani and R. N.\n\nSachthey, for the respondent."}}, {"text": "R. N.\n\nSachthey", "label": "LAWYER", "start_char": 4219, "end_char": 4234, "source": "ner", "metadata": {"in_sentence": "Jagad{sh Swarup, Solicitor-General, Ram Panjavani and R. N.\n\nSachthey, for the respondent."}}, {"text": "Grover", "label": "JUDGE", "start_char": 4299, "end_char": 4305, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Coun was delivered by Grover, J. This is an appeal by special leave from a judgment of the Calcutta High Court answering the following question referred to it under s. 66 (I) of the Indian Income-tax Act, 1922, hereinafter called the \"Act\" in the negative and agains_t the assessee :-\n\n\"Whether, on the facts and in the circumstances of the case, the sum of Rs."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 4368, "end_char": 4387, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Coun was delivered by Grover, J. This is an appeal by special leave from a judgment of the Calcutta High Court answering the following question referred to it under s. 66 (I) of the Indian Income-tax Act, 1922, hereinafter called the \"Act\" in the negative and agains_t the assessee :-\n\n\"Whether, on the facts and in the circumstances of the case, the sum of Rs."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 4442, "end_char": 4447, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4459, "end_char": 4486, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 10(1)", "label": "PROVISION", "start_char": 4718, "end_char": 4731, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Calcu'lta", "label": "GPE", "start_char": 4858, "end_char": 4867, "source": "ner", "metadata": {"in_sentence": "The assessee is •a public limited company having its registered -0ffice at Calcu'lta."}}, {"text": "Alumi-· nium Laboratories Limited", "label": "ORG", "start_char": 5030, "end_char": 5063, "source": "ner", "metadata": {"in_sentence": "There is another company known by the name of Alumi-· nium Laboratories Limited, Montreal, i; n Canada, hereinafter called the \"Montreal Company\", which provided the assessee with technical kaow-how, engineering services etc."}}, {"text": "January 31, 1947", "label": "DATE", "start_char": 5295, "end_char": 5311, "source": "ner", "metadata": {"in_sentence": "regarding development of a production of the goods: An agreement was entered into on January 31, 1947 between the-Montreal Company and the assessee."}}, {"text": "September 30, 1944", "label": "DATE", "start_char": 5732, "end_char": 5750, "source": "ner", "metadata": {"in_sentence": "2,50,808/- in favour of the Montreal Company for a period of seven years between the accounting year ending September 30, 1944 and September 30, 1950."}}, {"text": "September 30, 1950", "label": "DATE", "start_char": 5755, "end_char": 5773, "source": "ner", "metadata": {"in_sentence": "2,50,808/- in favour of the Montreal Company for a period of seven years between the accounting year ending September 30, 1944 and September 30, 1950."}}, {"text": "s. 18(7)", "label": "PROVISION", "start_char": 5856, "end_char": 5864, "source": "regex", "metadata": {"statute": null}}, {"text": "Montreal G Company", "label": "ORG", "start_char": 7660, "end_char": 7678, "source": "ner", "metadata": {"in_sentence": "The High Court also considered the question whether the amount paid to the Montreal G Company could be treated as a bad debt 'within the meaning of s. 10(2) (xi) but came to the conclusion that as it had not been advanced as a trading debt in the course of business it was not deductible as a bad debt."}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 7733, "end_char": 7741, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18(3-B)", "label": "PROVISION", "start_char": 7934, "end_char": 7944, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 18(3-B)", "label": "PROVISION", "start_char": 8484, "end_char": 8494, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 8969, "end_char": 8979, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 18(7)", "label": "PROVISION", "start_char": 9512, "end_char": 9520, "source": "regex", "metadata": {"statute": null}}, {"text": "August 3, 1954", "label": "DATE", "start_char": 10810, "end_char": 10824, "source": "ner", "metadata": {"in_sentence": "amount in questio11 for the reasons stated in the letter dated August 3, 1954."}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 11920, "end_char": 11928, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 12938, "end_char": 12943, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 13845, "end_char": 13853, "source": "regex", "metadata": {"statute": null}}, {"text": "B.:>mbay High Court", "label": "COURT", "start_char": 14074, "end_char": 14093, "source": "ner", "metadata": {"in_sentence": "01.mbay High Court in Commissioner of Income-tax, Bombay v. M/s. Pamrplµ/\n\nNarotamdas & Co. Bombay('') in which it was @Id that the amount of penalty imposed not for the fault of the assessee but because he had to pay the same for the purpose of getting the goods released from the Customs Aut!lorities could be regarded as wholly and exclusively incurred for the purpose of hise business."}}, {"text": "s. 18(3-B)", "label": "PROVISION", "start_char": 15168, "end_char": 15178, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_357_364_EN", "year": 1971, "text": "NA VINCHANDRA CHHOTELAL v.\n\nCENTRAL BOARD OF EXCISE AND CUSTOMS & ORS.\n\nJanuary 13, 1971\n\n[J. M. SH\n\n0ELAT AND C. A. VAIDIALINGAM, JJ.]\n\nCustoms Act (32 of 1962), ss. 128 and 129(1) and provis<>-Scope of.\n\nThe Collector of Customs and Excise confiscated certain smuggled i; oods and levied a personal penalty of Rs. 20,000 on the appellant under s. 112 of the Customs Act, 1962. He filed an appeal under s.· 128 before the first respondent and pleaded that the deposit of penalty as required by s. 129 may be waived.\n\nThe first respondent, after hearing him on the preliminary point regarding waiver, of deposit of penalty ordered that the appeal would be heard on merits l'f a sum of Rs. 10,000 out of, the total penalty was deposited by the appellant; but, since the , appellant failed to deposit even the amount of Rs. 10,000 within the prescribed period, the appeal was rejected. The appellant carried the matter in revision to. the Government.\n\nHe was given a further opportunity to deposit the sum of Rs. 10,000 but as he again failed to do so, the revision petition was rejected.\n\nA writ pelition to quash the orders of the first respondent and the Government was dismissed by the High Court.\n\nIn appeal to this Court,\n\nHELD: (1) Section 129(1) makes it obligatory on the person filing an appeal to deposit the penalty levied pending the disposal of the appeal on merits. The proviso to the section gives power to the Appellate Anthority, in appropriate cases, to dispense with such deposit unconditionally or subject to such conditions as it may deem fit.\n\nEven though the section, does not expressly provide for the rejection of the appeal for non-compli ance with the requirements regarding deposit or with any order that may be passed under the proviso, the Appellate Authority is competent to reject the appeal in those circumotances. Otherwise, the appeal will have to be kept on file and such retention will serve no purpose, because, the Appellate Authority canno'. dispose of the appeal on merits when the re quirements of s. 129(1) are not complied with. [362 F-G; 364 A-C}\n\n(2) The rejection of the appeal and revision would mean that the appellant was bound by the order of the Collector, but that result was brought about only by the appellant's default. [364 D-EJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 105 ol. 1967.\n\nAppeal by special leave from the order dated August 24, 1966 of the Punjab High Court. Circuit Bench at Delhi in Civil Writ No. 666-D of 1966.\n\nff U. M. Trivedi, Swaranjit Sodhi and S. S. Shukla, for the appellant.\n\nL. M. Singhvi and S. P. Nayar, for the. respondents.\n\nThe Judgmeint of the Court was delivered by A Vaidfalingam, J. This appeal, by special leave, is against the judgment and order datc:ct.August 24, 1966 of the Circuit Bench of the Punjab High Cotllf at New Delhi dismissing in limine Civil Writ No. 666-D of 1966 filed by the appellant to quash the orders of the first and second rpondents dated December 7, 1965 and April 23, 1966 respectively.\n\nB The main question that arises for consideration in this appeal is whether the order of the first respondent, Central Board of Excise and Customs, New Delhi, rejecting the appeal filed by the · appellant for non., comp!i3jllce with the provisions of s. 129 of .the Customs Act, .1962 (Act 32 of 1962) (hereinafter to be referred as the Act) was justified .. The point lies within a very C narrow compass and hence it is not necessary to state elaborately the.allegations. made against the appellant for taking action under the Act read With the material provisions of the Import and Export Control Act, 194 7. . The appellant was called up0n by the third. respondent, Collector' of Customs and Excise, Cochin, to show cause why he should not be penalised under s. 112(b) of the Act and why he should not be prosecuted under s. 135 (b) D of the Act.\n\nSimilarly anot1¥:r notice was issued against one Rodrigues, with whom we are not concerned in these proceedings.\n\nThe appellant made representations against the show cause notice and he was also given an opportunity to contest the allegatio, ns\n\nmadlagainst him. The third respondent by his order dated July 18, A 964 held that th~ ruby stone in question was smuggled into E India by Rodrigues at the instance of the appellant and in pursuance of an agreement entered into between them and that the ruby stone was handed over to Rodrigues by the brother of the appellant at Rangoon.\n\nBy the said order the third respondent confiscated the ruby stone and levied a personal penalty of . Rs. 20,000/- on the appellant under s. 112~(if.the Act on the ground that he was the PJ:ime mover behind-Smuggling of the F ruby stone. A perso11al penalty was also imPl'sed on Rodrigues who had carried the ruby stone. It was spe<; ifically stated in the order that the.penalties imposed were without:prejuelice to institu-. tion of any action under s. 135 of the Act. . The appellant filed an appeal on October 7, 1964 before the first respondent under s. 128: After raising his contentions in. G the memorandum of appeal on merits, he pleaded that it will not be possible for him to deposit the penalty amount of Rs. 20,000/- as was necessary under s. 129 of the Act, on the ground that he was innocent and that compliance with the requirement of deposit will result in undue hardship.\n\nHe further pleaded that it was bevond his means to .deposit such a large amount. Accordingly.\n\nH he'. requested the first respondent to exempt him from making the\n\neposit of the penalty imposed as a preliminary rquirement for hearing the appeal.\n\nNAVlNCHANDRA v. EXCISE & CUSTOMS BOARD 35~ tVaidialingam, J.J A The first respondent by his mder datd Decembe!. 7, ~9,65, rejected the appeal for non-compliance with the proviSlons P, f s. 129 of the Act. From the order it is seen that as the appea~ had been filed without depositing the penalty levied by the third respondent, the appellant was called upon on November 23, 1964 to deposit the same within 15 days and he was also further. informed B that his failure to deposit the penalty amount would render his appeal liable. to be rejected for non-compliance with. the provisions of s. 129. The appeal was heard on this preliminary point regarding waiver of the deposit under the said section.\n\nAfter considering the various grounds that appear to have been pressed c on behalf of the appellant, the order of the first respondent pro~ ceeds to state that it agreed to consider the appeal on merits provided a sum of Rs. 10,000/- out of the total penalty levied was deposited.\n\nThe appellant was infotmed on August 17, 1965 about this requirement by registered letter and\\ was called upon to deposit the same within 14 days. As the registered letter was returned unserved, a communication was sent to the appellant's D lawyer, who was on record arid. jt was acknowledged on Oct?ber\n\n18, 1965. But as the amount of Rs. 10,000/- was not deposited, the appeal was rejected for non-compliance, with the provisions of s. 129 of the Act.\n\n- The appellant carried the matter in revision before the second respondent under s. 130 of the_ Act. . The appellant was given a It further opportunity by the. second re5pondent to deposit the • sum of Rs. l~,000/- as required by the first respondent. As the appellant again failed to avail, himself of this opportunity, the second\n\nrsponn.t by' its .prder ated April 23, 1966 rejected the revision petl(J<>n hold111g that the matter cannot be considered on .merits and at the Goveylunent of India saw no reason to interf fere with the decision ¢ the Central Board of Excise and Customs.\n\nThe writ petition filed by the appellant to quash the orders of the\n\nfir~ and second respondent{ wa, s dismissed in /imine by the High\n\nCourt and it is the said order \\hat Js challenged beforjl us.\n\nIt may be mentioned at this stage that the appellant was prosecuted under s. 135(a) and (b) of the Act, before the District G Magistrate, Ernakulam. The District Magistrate by his judgment da!ed February 28. 1966 found the appellant and Rodrigues not gmlty of the offence with which they were charged and acquitted them under s. 258 of the Code of Criminal Produre.\n\n_Yarious gro':1ds of attack against the legality of the demand notice for deposit mg the penalty under s. 129 ( 1) of the Act have been. taken, h?!h before. the. High Court in the writ petition as also m the hhon filed m this Court for special leave. But only two contentrons were urged before us by Mr. U. N. Trevedi .\n\n360 SUPRllME COURT REPORTS [1971]3 s.c.R.\n\nlearned counsel for the appellant, namely, (i) section 129 of the A Act does not give any power to the first respondent to dismiss the ap~J for non-compliance with the requirements regarding the deposit of the penalty amount; and (Ii) by rejecting the appeal, the respondent as approved the order of the third respondent\n\nlevyg penalty agamst the appellant. It will be noted that the vahd1ty of s. 129 of the Act is not challenged.\n\nDr. L. M. Singhvi, learned counsel for the respondents, on the other hand, urged that the first respondent has acted strictly according to law when it passed the order rejecting the appeal for non-compliance withs. 129. If the appellant, who was given an opportunity not only by the first respondent but also by the c second respondent to deposit the half amount of penalty, cjid not avail himself of the said opportunity, he was entirely to blame for bringing on him the consequences of the rejection of his arpeal.\n\nIn view of the contentions taken before us on behalf of the appellant, it is ulljllecessary for us to consider in great detail the D decisions referred to by Mr. Trevedi.\n\nIn Hoosein Kasam Dada (India) Ltd. v.\n\nTe State of Madhya Pradesh and others(') the question that atose for 7onsideration was whether s. 22( 1) of the Central Provinces and Berar Sales Tax Act, 194 7, requiring the deposit of the penalty along with tl1e appeal applied to an appeal filed against an order E of assessment on the bais of return filed on date when tht> c.iginal s. 22( 1) was in force. This Court held that it was only s. 22(1) as it stood on the date of filing of the return that applied and not the amended section.\n\nIn Himmatlal Harilal Mehta v. The State df Madhya Pradesh F and others( 2 ) the question 'related to the right of a p<. rty. to approach the High Court under Art. 226 of the Consptution without availing himself of the other remedies provided under the Central Provinces and Berar Sales Tax Act, 194 7. This Court held that by the me[\\! fact that a remedy was available under the said Act, .an assessee was not disentitled to relief under Art. 226 when he G comes with an allegation that his fundamental right is sougl!t to be infringed.\n\nIn Collector of Customs and Excise, Cochin and others v.\n\nA. S. Bava(') the point that arose for consideration was whether s. 129 of the Act governed an appeal filed under the Central Excise and Salt Act, 1944, by virtue of the notification dated H\n\n0) [1953] S.C.R. 987.\n\n(2) [1954] S.C.R.1122.\n\n(J) [1968] 1S.C.R.82.\n\nNAVINCHANDRA V. EXCISE & CUSTOMS BOARD 361 ( Vaidialingam, J.) A May 4, 1963 issued by the Central Government under s. 12 of\n\nthe said Act. This Court held that s. f29 of the Act was not attracted.\n\nNone f the above decisions have any bearing on the contentions raised by Mr. Trevedi.\n\nIn order to appreciate the contentions of the learned counsel for the appellant, it is now necessary to refer to ss. 128 and 129 relating to appeals and deposit of penalty or duty pending appeal.\n\n\"128(1) Any person aggrieved by any decision or order passed under this Act may, within three months from the date of the communication to him of such decision or orelet-\n\n(a) where the .decision or order has been passed by a Collector of Customs, appeal to the Board;\n\n(b) where the decision or order has been passed by an officer of customs lower in rank than a Collector of Customs, app(:lll to the Appellate Collector of Customs;\n\nProvided that the Appellate Authority may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.\n\n(2) The Appellate Authority may, after giving an opportunity to the appellant to be heard, if he so desires, and making such further inquiry as may be necessary, pass such order as it thinks fit, confirming, modifying or annulling the decisions or order appaled against :\n\nProvided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall not be passed-\n\n( a) by an Appellate Collector of Customs;\n\n(b) by the Board unless the appellant has been given a reasonable opportunity of showing cause against the proposed order;\n\nProvided further that where the Appellate Authority is of opinion that any duty of customs has been shortlevied, no order enhancing the duty shall be passed unless the appellant is given notice within thi;. lime-limit specified in section 128 to show cause against the proposed order.\n\n129 ( 1) Where the decision or order appealed against related to any duty demanded in respect of goods which are not uner the control of customs authorities ur any\n\npenalt~ levied under this Act, any person desirous of appealmg against such decision or order shall, pending the appeal, deposit with the proper officer the dutv demanded or the penalty levied; .\n\nProvided that where in any particular case the appellate authority is of opinion that the deposit of duty demanded or penalty levied will cause undue hardship to the appellant, it may in its discretion dispense with such deposit, either unconditionally or subject to such conditions as it may deem fit.\n\n(2) If upon any such appeal it is decided that the whole or any portion of such duty or penalty was not leviable, the proper officer shall return to the appellant such amount of duty or penalty as was not leviable.\"\n\nFrom the provisions extracted above it is to be seen that s. 128 gives a right of appeal against the decision or order passed by the authorities mentioned therein. It also specifies the authorities to whom and the period within which the appeal is to be filed. The proviso to sub-section (1) of s. 128 gives rower to the Appellate Authority on sufficient cause being shown to extend the period for filing the appeal by a further period not exceeding three months. Sub-section (2) provides for an opportunity being given to the appellant to be heard, if he so desires, and the Appellate Authorities passing such orders by way of confirming, modifying\n\nor annulling the decision or order app:!aled against, subject to two provisos contained therein.\n\nSection 129(1) makes it obligatory on the person filing ap appeal to deposit, pending the appeal, with F the proper officer the duty demanded or penalty levied where the order or decision appealed against relates to any duty demanded in respect of goods, which are not under the control of Custom Authorities or of penalty levied under the Act.\n\nThe proviso gives power to the Appellate Authority in particular cases to dispense with such deposit either unconditionally or subject to such conditions, as it may deem fit, when it is of the opinion that the deposit of duty demanded or penalty levied will cause undu~ har~\n\nship to the appellant.\n\nUnder s. 129(1) the appellant, in this case, when he filed the appeal to the first respondent against the order of the Collector of Customs levying penalty had to normally deposit the entire amount of penalty, namely,. Rs .. 20,00~/-, but as the appellant had made a request for dispensmg w1!h such 'deposit, the first respondent heard him on that point and ultnnately.\n\nas mntioned earlier. reduced the amount of penalty to be deposit-\n\nNAVINCHANDRA v. EXCISE & CUSTOMS BOARD 353 ( Vaidialingam, J.) ed to Rs. 10,000/-. But as the appellant did not comply with the said requirement, his appeal was rejected without going into merits for non-compliance of s. 129.\n\nThe second respondent also when it was moved in revision gave the appellant further time to deposit the sum of Rs. 10,000/-, but as the appellant failed to avail himself of that opportunity, the Government of India declined to interfere with the order of the first respondellt.\n\nSection 128 no doubt gives a right of appeal. But it is followed by s. 129(1) regarding making of deposit pending the appeal. It must also be noted that so far as the deposit of duty is concerned, the requirement regarding the deposit will come into force only if the goods in respect of which duty is demanded are not under the control of Customs Authorities.\n\nThough subsection ( 1) of s. 129 may appear to make it necessary that an appellant should deposit the duty or penalty before his appeal could be heard on merits, the proviso whittles down the rigour of sub-section(!). In this connection it is to be noted that under s. 189 of the Sea.Customs Act, 1878, it was obligatory on the part of an. appellant to deposit the duty or penalty pending the appel.\n\nThere was no provision therein by which the. appellate authonty could waive the requirement regarding the deposit of the entire amount of duty or penalty. But in the Act by the proviso to subsection ( 1) of s. 129, which has been quoted above, discretion has been given to the appellate authority to either waive the deposit of the entire amount of penalty or duty or reduce the quantum to be so deposited if the appellate authority is of the opinion that the requirement regarding the deposit of the full amount of penalty or duty will cause undue hardship to an appellant.\n\nWe have already pointed out that the appellant did make a request to •the first respondent to exempt him from the requirement regarding the deposit of the penalty levied against him. The grounds pleaded by him in this behalf were he was innocent and that it was not possible for him to deposit the penalty amount.\n\nThe appellant was heard initially on his request for exempting him from depositing the penalty and having regard to the representatioas made by him, the first respondent reduced the amount of penalty to be deposited to Rs. 10,000/- that is half the amount of the penalty levi.d by the Collector.\n\nThe appellant did not comply with this requirement and therefore his appeal was rejected for non-compliance with the provisions of s. 129 ( 1). The appellant availed himself of his right to challenge this order in revision under s. 130 of the Act, before the second respondent.\n\nThe appellant was given a further opportunity to deposit the sum of Rs. 10,0001-, but he failed to avail himself of this further opportunity afforded to him by the second respondent and hence his revision was rejected.\n\nNo doubt s. 129 does not expressly provide for the rejection A of the appeal for non-compliilnce with the requirement regarding the deposit of penalty or duty, but when sul1-seccion (1) of s. 129 makes it obligatory on an appellant to dep0sit the duty or penalty pending the appeal and if a party does not comply either with the main sub-section or with any order that may be passectunder the proviso, the appellate authority is fully competent to reject the B appeal for non-compliance with the provisions of s. 129(1).\n\nThat is exactly wli.at the first respondent has done in this case.\n\nAccepting the contention of Mr. Trevedi will mean that the appeal will have to be kept on file for ever even when the requirement of s. 129(1) has not been complied with.\n\nRetention of such an appeal on file will serve no purpose whatsoever because unless . c section 129(1) is complied with; the appellate authority cannot proceed to hear an appeal on merits. Therefore, the logical con- .sequence of failure to comply with s. 129 ( 1) is the rejection of appeal on that ground.\n\nNo douqt, the rejection of the appeal by .the first respondent will mean that the appellant is bound by the order of the third D respondent levying penalty. Such a result has been brought about only by the default of the appellant in complying with the order of the first responc\\ent to deposit half the amount of penalty.\n\nTherefore, it follows that the rejection of the appeal by the first respondent was legal and the order of the High Court. dismissing the writ petition is valid.\n\nn the result the appeal fails and is dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 78, "entities": [{"text": "NA VINCHANDRA CHHOTELAL", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "NAVINCHANDRA CHHOTELAL", "offset_not_found": false}}, {"text": "CENTRAL BOARD OF EXCISE AND CUSTOMS & ORS", "label": "RESPONDENT", "start_char": 28, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "CENTRAL BOARD OF EXCISE AND CUSTOMS & ORS", "offset_not_found": false}}, {"text": "January 13, 1971", "label": "DATE", "start_char": 72, "end_char": 88, "source": "ner", "metadata": {"in_sentence": "January 13, 1971\n\n[J. M. SH\n\n0ELAT AND C. A. VAIDIALINGAM, JJ.]"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 137, "end_char": 148, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 128 and 129(1)", "label": "PROVISION", "start_char": 163, "end_char": 181, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 112", "label": "PROVISION", "start_char": 346, "end_char": 352, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act, 1962", "label": "STATUTE", "start_char": 360, "end_char": 377, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 129", "label": "PROVISION", "start_char": 495, "end_char": 501, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Section 129(1)", "label": "PROVISION", "start_char": 1237, "end_char": 1251, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "s. 129(1)", "label": "PROVISION", "start_char": 2039, "end_char": 2048, "source": "regex", "metadata": {"statute": null}}, {"text": "ff U. M. Trivedi", "label": "LAWYER", "start_char": 2492, "end_char": 2508, "source": "ner", "metadata": {"in_sentence": "ff U. M. Trivedi, Swaranjit Sodhi and S. S. Shukla, for the appellant."}}, {"text": "Swaranjit Sodhi", "label": "LAWYER", "start_char": 2510, "end_char": 2525, "source": "ner", "metadata": {"in_sentence": "ff U. M. Trivedi, Swaranjit Sodhi and S. S. Shukla, for the appellant."}}, {"text": "S. S. Shukla", "label": "LAWYER", "start_char": 2530, "end_char": 2542, "source": "ner", "metadata": {"in_sentence": "ff U. M. Trivedi, Swaranjit Sodhi and S. S. Shukla, for the appellant."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 2564, "end_char": 2577, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and S. P. Nayar, for the.", "canonical_name": "L. M. Singhvi"}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 2582, "end_char": 2593, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and S. P. Nayar, for the."}}, {"text": "A Vaidfalingam", "label": "JUDGE", "start_char": 2662, "end_char": 2676, "source": "ner", "metadata": {"in_sentence": "The Judgmeint of the Court was delivered by A Vaidfalingam, J. This appeal, by special leave, is against the judgment and order datc:ct."}}, {"text": "Central Board of Excise and Customs, New Delhi", "label": "ORG", "start_char": 3125, "end_char": 3171, "source": "ner", "metadata": {"in_sentence": "B The main question that arises for consideration in this appeal is whether the order of the first respondent, Central Board of Excise and Customs, New Delhi, rejecting the appeal filed by the · appellant for non.,"}}, {"text": "s. 129", "label": "PROVISION", "start_char": 3265, "end_char": 3271, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 3280, "end_char": 3291, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 112(b)", "label": "PROVISION", "start_char": 3776, "end_char": 3785, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 3839, "end_char": 3845, "source": "regex", "metadata": {"statute": null}}, {"text": "Rodrigues", "label": "OTHER_PERSON", "start_char": 3914, "end_char": 3923, "source": "ner", "metadata": {"in_sentence": "Similarly anot1¥:r notice was issued against one Rodrigues, with whom we are not concerned in these proceedings."}}, {"text": "Rangoon", "label": "GPE", "start_char": 4439, "end_char": 4446, "source": "ner", "metadata": {"in_sentence": "The third respondent by his order dated July 18, A 964 held that th~ ruby stone in question was smuggled into E India by Rodrigues at the instance of the appellant and in pursuance of an agreement entered into between them and that the ruby stone was handed over to Rodrigues by the brother of the appellant at Rangoon."}}, {"text": "s. 112", "label": "PROVISION", "start_char": 4586, "end_char": 4592, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 4900, "end_char": 4906, "source": "regex", "metadata": {"statute": null}}, {"text": "October 7, 1964", "label": "DATE", "start_char": 4954, "end_char": 4969, "source": "ner", "metadata": {"in_sentence": "The appellant filed an appeal on October 7, 1964 before the first respondent under s. 128: After raising his contentions in."}}, {"text": "s. 128", "label": "PROVISION", "start_char": 5004, "end_char": 5010, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 5201, "end_char": 5207, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 5772, "end_char": 5778, "source": "regex", "metadata": {"statute": null}}, {"text": "November 23, 1964", "label": "DATE", "start_char": 5947, "end_char": 5964, "source": "ner", "metadata": {"in_sentence": "From the order it is seen that as the appea~ had been filed without depositing the penalty levied by the third respondent, the appellant was called upon on November 23, 1964 to deposit the same within 15 days and he was also further."}}, {"text": "s. 129", "label": "PROVISION", "start_char": 6173, "end_char": 6179, "source": "regex", "metadata": {"statute": null}}, {"text": "August 17, 1965", "label": "DATE", "start_char": 6597, "end_char": 6612, "source": "ner", "metadata": {"in_sentence": "The appellant was infotmed on August 17, 1965 about this requirement by registered letter and\\ was called upon to deposit the same within 14 days."}}, {"text": "Oct?ber\n\n18, 1965", "label": "DATE", "start_char": 6863, "end_char": 6880, "source": "ner", "metadata": {"in_sentence": "jt was acknowledged on Oct?ber\n\n18, 1965."}}, {"text": "s. 129", "label": "PROVISION", "start_char": 7002, "end_char": 7008, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 7104, "end_char": 7110, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Board of Excise and Customs", "label": "ORG", "start_char": 7574, "end_char": 7609, "source": "ner", "metadata": {"in_sentence": "As the appellant again failed to avail, himself of this opportunity, the second\n\nrsponn.t by' its .prder ated April 23, 1966 rejected the revision petl(J<>n hold111g that the matter cannot be considered on .merits and at the Goveylunent of India saw no reason to interf fere with the decision ¢ the Central Board of Excise and Customs."}}, {"text": "s. 135(a)", "label": "PROVISION", "start_char": 7885, "end_char": 7894, "source": "regex", "metadata": {"statute": null}}, {"text": "District G Magistrate, Ernakulam", "label": "COURT", "start_char": 7926, "end_char": 7958, "source": "ner", "metadata": {"in_sentence": "It may be mentioned at this stage that the appellant was prosecuted under s. 135(a) and (b) of the Act, before the District G Magistrate, Ernakulam."}}, {"text": "February 28. 1966", "label": "DATE", "start_char": 8006, "end_char": 8023, "source": "ner", "metadata": {"in_sentence": "The District Magistrate by his judgment da!ed February 28."}}, {"text": "s. 258", "label": "PROVISION", "start_char": 8137, "end_char": 8143, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 8281, "end_char": 8287, "source": "regex", "metadata": {"statute": null}}, {"text": "U. N. Trevedi", "label": "OTHER_PERSON", "start_char": 8482, "end_char": 8495, "source": "ner", "metadata": {"in_sentence": "But only two contentrons were urged before us by Mr. U. N. Trevedi ."}}, {"text": "section 129", "label": "PROVISION", "start_char": 8589, "end_char": 8600, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 8937, "end_char": 8943, "source": "regex", "metadata": {"statute": null}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 8979, "end_char": 8992, "source": "ner", "metadata": {"in_sentence": "Dr. L. M. Singhvi, learned counsel for the respondents, on the other hand, urged that the first respondent has acted strictly according to law when it passed the order rejecting the appeal for non-compliance withs.", "canonical_name": "L. M. Singhvi"}}, {"text": "Trevedi", "label": "OTHER_PERSON", "start_char": 9655, "end_char": 9662, "source": "ner", "metadata": {"in_sentence": "In view of the contentions taken before us on behalf of the appellant, it is ulljllecessary for us to consider in great detail the D decisions referred to by Mr. Trevedi."}}, {"text": "s. 22( 1)", "label": "PROVISION", "start_char": 9799, "end_char": 9808, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22( 1)", "label": "PROVISION", "start_char": 10041, "end_char": 10050, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22(1)", "label": "PROVISION", "start_char": 10098, "end_char": 10106, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 10356, "end_char": 10364, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 10636, "end_char": 10644, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 10859, "end_char": 10865, "source": "regex", "metadata": {"statute": null}}, {"text": "Act governed an appeal filed under the Central Excise and Salt Act, 1944", "label": "STATUTE", "start_char": 10873, "end_char": 10945, "source": "regex", "metadata": {}}, {"text": "s. 12", "label": "PROVISION", "start_char": 11172, "end_char": 11177, "source": "regex", "metadata": {"linked_statute_text": "the Act governed an appeal filed under the Central Excise and Salt Act, 1944", "statute": "the Act governed an appeal filed under the Central Excise and Salt Act, 1944"}}, {"text": "ss. 128 and 129", "label": "PROVISION", "start_char": 11455, "end_char": 11470, "source": "regex", "metadata": {"linked_statute_text": "the Act governed an appeal filed under the Central Excise and Salt Act, 1944", "statute": "the Act governed an appeal filed under the Central Excise and Salt Act, 1944"}}, {"text": "section 128", "label": "PROVISION", "start_char": 13038, "end_char": 13049, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 128", "label": "PROVISION", "start_char": 14034, "end_char": 14040, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 128", "label": "PROVISION", "start_char": 14271, "end_char": 14277, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 129(1)", "label": "PROVISION", "start_char": 14725, "end_char": 14739, "source": "regex", "metadata": {"statute": null}}, {"text": "Custom Authorities or of penalty levied under the Act", "label": "STATUTE", "start_char": 15015, "end_char": 15068, "source": "regex", "metadata": {}}, {"text": "s. 129(1)", "label": "PROVISION", "start_char": 15377, "end_char": 15386, "source": "regex", "metadata": {"linked_statute_text": "Custom Authorities or of penalty levied under the Act", "statute": "Custom Authorities or of penalty levied under the Act"}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 15854, "end_char": 15866, "source": "ner", "metadata": {"in_sentence": "reduced the amount of penalty to be deposit-\n\nNAVINCHANDRA v. EXCISE & CUSTOMS BOARD 353 ( Vaidialingam, J.) ed to Rs."}}, {"text": "s. 129", "label": "PROVISION", "start_char": 16027, "end_char": 16033, "source": "regex", "metadata": {"linked_statute_text": "Custom Authorities or of penalty levied under the Act", "statute": "Custom Authorities or of penalty levied under the Act"}}, {"text": "Government of India", "label": "ORG", "start_char": 16231, "end_char": 16250, "source": "ner", "metadata": {"in_sentence": "10,000/-, but as the appellant failed to avail himself of that opportunity, the Government of India declined to interfere with the order of the first respondellt."}}, {"text": "Section 128", "label": "PROVISION", "start_char": 16315, "end_char": 16326, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129(1)", "label": "PROVISION", "start_char": 16383, "end_char": 16392, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 16703, "end_char": 16709, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 189", "label": "PROVISION", "start_char": 16943, "end_char": 16949, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act, 1878", "label": "STATUTE", "start_char": 16961, "end_char": 16978, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 129", "label": "PROVISION", "start_char": 17285, "end_char": 17291, "source": "regex", "metadata": {"linked_statute_text": "Customs Act, 1878", "statute": "Customs Act, 1878"}}, {"text": "s. 129", "label": "PROVISION", "start_char": 18397, "end_char": 18403, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 18495, "end_char": 18501, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 18774, "end_char": 18780, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 18954, "end_char": 18960, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129(1)", "label": "PROVISION", "start_char": 19275, "end_char": 19284, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129(1)", "label": "PROVISION", "start_char": 19488, "end_char": 19497, "source": "regex", "metadata": {"statute": null}}, {"text": "section 129(1)", "label": "PROVISION", "start_char": 19615, "end_char": 19629, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 19780, "end_char": 19786, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_365_369_EN", "year": 1971, "text": "A €0MMISSIONER OF INCOME-TAX, ANDHRA PRADESH,\n\nHYDERABAD\n\nv .\n\n.JAYALAKSHMI RICE AND OIL MILLS CONTRACTOR CO.\n\nJanuary 15, 1971\n\n[J. c. SHAH, C.J., K. s. HEGDE AND A. N. GROVER, JJ.]\n\nIncome-tax Act, 1922, s. 26A-Income-ta!< Rules, r. 2(b)-Indian Partnership Act, 1932, ss. 58, 59, 69-Rule 2(b) 11taviding that in respect of firms registered under Partnership Act the application for registration of firm u/s 26A of the Income-tax Act shall be made before the end of the previous year-Firm can be said to be registered under Parwrship\n\nAct not on date of receipt of app/iCQ/ion under a. 58 but when entry is made in register of firms under s. 59--:-IJ such an entry is made after end of 'previous year' firm is not registered under the Partnership Act for the purpose of r. 2(b).\n\nTue assessee firm was constituted under a deed of partnership dated October 6, 1955. It was to come into existence with effect from November 5, 1954. Tue assessee filed an application under s. 26A of the Act for registratlon of the firm for the assessment year 1956-51. The previous year of the firm was shown as the year ending October 26, 1955. The application was received by the Income-tax Officer an October 14, 1955.\n\nOn October 20, 1955 the assessee filed before the Regiatrar df Firms a statement under s. 58 of the Indian Partnership Act, 1932. On November 2, 1955 the Registrar of Firrmr1iled the statement of he assessce and made entries in the register of firms. On March 23, 1961 the Income-tax Officer passed an order refusing to register the firm under s. 26A inter alia for the reason that the application had not been made in time. The appeal taken to the Appellate Assistant Commissioner failed. The Tribunal also upheld the order of the authorities below. In reference t!fe High Court answered the question in favour of the assessee holding that the partnership should be deemed to have been registered on the date when the application was presented and that the requirement of r. 2(b) of the Rules would be satisfied if it became registered under the Partnership Act even after the application under s. 26A was filed. In appeal by the Revenue.\n\nHELD : (i) The view taken by the High Court was not correct. Under the Partnership '•w it can be taken to have been settled by decisioRs of High Courts, from. a long time that the registration of firm takes place only when necessary entries are made in the register of firms under s. 59 of the Partnership Act by_the Registrar. Section 58 of the Act no doubt employs language which, without anything more may appear to lend support to the view that the registration of a firm may be effected merely by sending an application which would mean that as soon as an application is sent and if entry is made under s. 59 pursuant to it the registration would be effective from the date when the application was presented. But ;. 58(2) is not to be read in isolation and has to be considered along with the scheme df the other provisions of the Act viz. ss. 59 and 69. The latter section which deals with the effect of non-registration throws light on what was contemplated by the Legislature with regard to the point of time when the firm could be regarded as registered. [368 C-OJ H Ram Prarttd v. Kamta Prasad, A.LR. 19l5 All. 898, Danmal Parshotamadas v. Haburam Chhotelal. I.L.R. [1936) 58 All. 495 and Kera/a Road Lines Corporation v. Commissioner of Income-tax, Kera/a 51 J.T.R. 71 1, approved.\n\n(ii) The views expressed by the Special Committee appointed by the Government of India in respect of the Bill which came to be passed by the Central Legislative as the Partnership Act were irrelevant for the purpo\"' of construing the provisions of the Act. [1369 Bl\n\nCIVIL APPELLATE JURISDICTION; Civil Appeal No. 545 of 1967. .\n\nAppeal from the judgment and order dated April 15, 1966 of the Andhra Pradesh High Court in Case Referred No. 40 of 1963.\n\nS. C. Manchanda. B. D. Sharma and R. N. Sachthey, for the appellant.\n\nK. Rajendra Chaudhuri, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGrover, J.\n\nThis is an appeal from a judgment of the Andhra\n\nPradesh High Court arising out of a reference made under s. 66( 1) of the Income-tax Act, 1922, hereinafter called the 'Act' of the question whether on the facts and in the circumstances of the case ( the application under s. 26A of the Act was filed out of time.\n\nThe facts are not in dispute.\n\nThe assessee firm was constituted under a deed of partnership dated October 6, 1955.\n\nIt was to come into existence with effect from November 5, 1954.\n\nThe assesse_e filed an application under ~. 26A of the Act for registration of the firm for the assessment year 1956-57.\n\nThe 'previous year' of the fim1 was shown as the year ending October E 26, 1955.\n\nThis application was received by the Income-tax Officer on October 14, 1955. On October 20. 1955 tile assessee filed before the Registrar of Firms a statement under s. 58 o.f the Indian Partnership Act 1932. On November 2, 1955 the Registrar of Firms filed the statemt of the assessee and made entries in the registrar of fimls.\n\nOn March 23, 1961 the Income-tax F Officer passed an order refusing to register the firm under s. 26A 1inter alia, for the reason that the application. had not been made in time.\n\nThe appeal taken to the Appellate Assistant Commissioner by the assessee failed. The Income-tax Appellate Tribunal also upheld the order of the Income-tax Officer and the Appellate Assistant Commissioner. On that a refe\\ence was sought and the G High Court answered the question referred in favour of the asses-\n\n.ee on the ground that the application had been filed in time.\n\nSection 26A of the Act provicks that an application may be made to the Income-tax Officer on behalf of any firm constituted tmder an fostrument of pertnership specifying the individual H >hares of the partners for registration for the purposes of the Act.\n\nThe application has to be made by such person or persons and at such time and has to contain such particulars etc. as may be\n\nC.I.T. v. JAYALAKSHMI RICE MILLS (Grover, J.) 367\n\nprescribed. Rubs 2 to 6 (b) of the Rules made under s. 59 of the Act deal with registration of firms.\n\nWe are concerned with the following material portion of Rule 2.\n\n''Such application shall ........ be .... made ... .\n\n(a) Where the firm is not registered under the Indian Partnership Act, 1932 (IX of 1932) o: or where the deed of Partnership is not registered under the Indian Registration Act, 190~\n\n(XVI of 1908), and the application for registration is being made for the first time under the Act,\n\n(i) Within a period of six months of the constitution of the firm or before the end of the 'previous year' of the firm whichevec is earlier, if the firm was constituted in that previous year.\n\n(ii) before the end of the previous year in any\n\nother case;\n\n(b) Where the firm is registered under the Indian Partnership Act. 1932 (IX of 1932) or where\n\nthe need of partnership is registered under the Indian Registration Act (XVI of 1908) befor Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard. and as such no business could be transacted therein Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard."}}, {"text": "Agricultural Produce Market Committee, Sirsi", "label": "ORG", "start_char": 15763, "end_char": 15807, "source": "ner", "metadata": {"in_sentence": "Odowns, storage places and open places lying within the limits of the Sirsi Municipality and approved by the Agricultural Produce Market Committee, Sirsi for storage and for the purpooe of sale of commodities under regulation including the area locally known as Channapattan Gali, Basti Galli and Nadger Galli which had earlier been declared by Notification of the Government in the Development Department dated 24-4-1951 to be a Market Yard The affect of the super1.ssion of thi> Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard."}}, {"text": "24-4-1951", "label": "DATE", "start_char": 16066, "end_char": 16075, "source": "ner", "metadata": {"in_sentence": "Odowns, storage places and open places lying within the limits of the Sirsi Municipality and approved by the Agricultural Produce Market Committee, Sirsi for storage and for the purpooe of sale of commodities under regulation including the area locally known as Channapattan Gali, Basti Galli and Nadger Galli which had earlier been declared by Notification of the Government in the Development Department dated 24-4-1951 to be a Market Yard The affect of the super1.ssion of thi> Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard."}}, {"text": "15-1-1965", "label": "DATE", "start_char": 16193, "end_char": 16202, "source": "ner", "metadata": {"in_sentence": "Odowns, storage places and open places lying within the limits of the Sirsi Municipality and approved by the Agricultural Produce Market Committee, Sirsi for storage and for the purpooe of sale of commodities under regulation including the area locally known as Channapattan Gali, Basti Galli and Nadger Galli which had earlier been declared by Notification of the Government in the Development Department dated 24-4-1951 to be a Market Yard The affect of the super1.ssion of thi> Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard."}}]} {"document_id": "1971_3_378_382_EN", "year": 1971, "text": "STANDARD REFINERY & DISTILLERY LTD. v.\n\nCOMMISSIONER OF INCOME-TAX:, CALCUTTA\n\nJanuary 18, 1971\n\n[K. S. HEGDE AND A. N. GROVER, JJ.]\n\nIncome-tax Act (11 of 1922), s. 22(4)-'Same busines.', tests for.\n\nThe assessee owned a distillery and a refinery. In 1945, it obtained on lease the sugar factory belonging to another .company, and during the period from January to April 1946, it purchased about 41,000 shares of the lessor company, and in April 1947, sold the entire block of shares.\n\nThe transation resulted in a loss.\n\nAfter setting off the loss against the other income for the assessment year 1948-49, the unabsorbed loss was carried forward under s. 24(2) of the Income.tax Act, 1922, to the assessment year 1949-SO. But the assessee's claim to set off the loss pertaining to the sha; re business against the profits in th~ sugar business was negatived by the Department, the Appellate Tribunal and the High Court.\n\nIn appeal to this Court, this Court reframed the question referred to the High Court as 'whether the business of dealing in shares and the business of manufacturing sugar etc. constituted the same. l>usinc'Ss within the meaning of s. 24(2/'Qf the Act,' and directed the Tribunal to submit a supplementaty •tatementofcase. The Tribunal submitted that the two businesses had a single trading and profit and loss account, that they had been dealt with by a common organisation, that the transaction relating to shares was treated as part and parcel of the business of the assessee company, that a common fund was utilized 'for both businesses and that they were carried on iii the same place of business ..\n\nHELD : In determining whether two lines of business constitute the 'came business' within the meaning of s. 24(2), the income-tax authorities must .consider the inter-connection, inter-lacing inter-dependence and unity furnished by the existence of common management, mon business organisation, common administration, common fund .-- a common place, of business.\n\nApplying those. tes:s the share transaction as well as the other business of the assessee should be considered u the 'same business.·\n\n(380 F-G] C.l.T., Madr~ v. Prithvi (nsuraricL Co. Lid., 63 i.T.R. 632, S.C. and Procedure ExchanM Corpn. Ltd. v. C.l.T. Central Ca/cu11a, 11 I.T.R. 739 S.C. followed. Satabganj ugar Mi/ls Ltd. v. C.l. T., Central Calcutta, 41 I.T.R., 72 S.C. and Scales v. Ger, rge Thompson & Co. Ltd., 13 Tax Cas. 83, referr- m. .\n\nCIVIL APPELLATE JURISDICTION : Civil A-pl!I No. 1585 Of 1968. . ' Appeal from tpe judgment and order dated July 23, 1963 of the Cakutta Hih court in Income-tax Refereince No. 64 of 1958. . .\n\nS. C. Manchanda, Gobind Das and D. N. Gupta, for the appel- H ~. ., . ~\n\nS. Mitra, S. K. Aiyar and R. N. Sachthey, for the respondent.\n\n1; he Judgme~ of the Court was delivered by\n\nHegde, J. This is an assessee's appeal. The assess¢e is a public limited company and the appeal relates to the assessment for the assessment year 1949-1950, corresponding to the accounting year which is the calendar year ending on December 31, B\n\n1948. The assesse company was incorporated in 1942. At the beginning it owned a distillery at Unnao. It acquired a refinery in 1943._. With effect from June 1, 1945, the assessee company obtained on lease the New Sawan Sugar and Our Refining Co . .Quring the period from Iainuary 29, 1946 to April 23, 1946, the\n\nasses~~ company purchased 41,300 shares of the said company C for Rs. '12,17,006/-.\n\nOn April 30, 1947 the entire block of shares was sold to Produce Exg.hange Corporation Ltd. for Rs. 8,46,750/-. The transaction resulted in a loss of Rs. 3,70,356/-.\n\nThis loss was trea~ by the assessee as a trading loss for the assessment year 1948-49- After •ting off this loss against the other income of the assessee company, a loss of Rs. 2,27,085/- was carried forward under s. 24 ( 2) of the Income-tax Act, 1922 D (to be hereinafter:Crred to as the Act) to the year 1949-50 and later years. e assessee claimed to set off this. unabsorbed loss pertaining to e share business against its profits in the sugar business for the assessment year 1949-1950. The Income-tax Officer did not permit this set off. The Appellate Assistant Commissioner confirmed the order of the Income-tax Officer.\n\nIn a E further appeal, the Appellate Tribunal agreed with the conclusion reached by the Income-tai, Officer. Thereafter at the instance of the High Court, the Appellate Tribunal stated a case under s. 66(2) of the Act on the following question of law:\n\n\"Was there any evidence before the Tribunal on which it could hold that the business in dealing with\n\nShares was distinct and separate from the business of\n\nsuga~ manufacturing and distillery?\"\n\nlly its judgment dated April 23, 1963, the High Court answered the question in the affirmative . and against the assessee. This appeal has been brought against the decision -0f the High Court G after obraig a certificate under s. 66(A) (2) of the Act.\n\nThe appeal came up for hearing before this Court on February 6, 1969. After heating the Counsel for the parties this Court observed:\n\nIn the present case how1Wer it is not possible for us to satisfactorily dispose of this appeal because t!wstatement of the case submitted by the Tribunal is incomplete and has omitted to state material facts bearing upon the question referred. For instance, it is not clear as to\n\nSUPREME COURT REPORTS [1971] 3 S.C.)l.\n\nwhether the assessee aduced any evidence as to why it started purchasing the shares of the lessor company about six months after the commencement of the lease. It is also not stated by the Tribunal whether there is any evidence of inter-relation between the purchase of shares\n\nand the manufacture of sugar.\" B\n\nIn view of that conclusion this Court directed the Tribunal to submit a supplementary statement of case on some of the :points formulated ill the order.\n\nThe Tribunal accordingly submitted a supplementary statement of case.\n\nEven after considering that supplementary statement; this Court found itself unable to record its opinion on the C question/ referred to.\n\nThis Court was also of the opinion that the qU.estion which the Tribunal was directed to and did refer was defective and restricted the scope of the enquiry. It accordinglY, reframed the question as follows :\n\n\"Whether the business of the company of dealing in shares and the business of manufacturing sugar and other commodities constitute the saMe business within the. meaning of s. 24(2) of the Indian Inoome-tax Act, 1922, in force m the year of assessment?\"\n\nIt further directed the attention of the Tribunal to the 'decision\n\n-of this Court in Commissioner of Income-tax, Madras v. PriJhvi E Insurance Co. Ltd. (1) in order to assist the Tribu1nal to fitid out the relevant points for consideration. ' In the order calling for a further supplementary statement, this Court , observed :\n\n\"As pointed out by this Court i)l Commissigner of Inc'ome Tax, Madras v. Prithvi Ins. Co. Ltd. in deter-. mining whether two lines of business constitute the F same busines~ within the meaning of s. 24(2) of the Income-tax Act, the income-tax authorities must consider the inter-connection, inter-lacing, inter-dependence and unity furnished by the existence of common .management, common business organisation, common administration, common fund and .a common place of\n\n, G business.\" The Tribunal has now submitted the second supplementary statement of case called for by this Court.• The facts found by it are as follows : ( 1 ). There is a single trading and profit ond loss account.\n\nIn the same account the sales of spirit, sugar and H molasses as well as stock and shares appear; ---------- --]-. 63 I.T.R. 63c.\n\n( 2) The share transactions as well as the business has been dealt with by a common organisation, though the sale of shares is a single transaction and the pur chase of those shares is also more or Jess of the same character; ( 3) The business of the company as well as the transaction relating to the shares were attended to as part and parcel of the business of the assessee company; ( 4) A common fund was utilised both for business purposes as well as for the purchase of shares. A part of the over-draft of Rs. 6,80,046/. taken from the bank on December 31, 194 7 has been discharged from out of the income of the business; and ( 5) the share transaction work as well as the other business of the assessee company were carried on in the same place of, business.\n\nD From the facts found by the Tribunal, it is clear that the share trarisaction as well as the other busi, nesses of the company were dealt wtih by a common management, common business organization, commcm administration, common fund and common place of business.\n\nE It was urged by Mr. Mitra, learned Counsel for the Revenue that from the facts found by the Tribunal, it is not possible to conclude that there, was any inter-connection, inter-lacing, interdependence and unity between the transactions of the assessee company relating to the shares as well as its other business and therefore the two activities cannot be considered as \"the same F business''. He contended that this Court in Prithvi lmurance Co.\n\nLtd's case( 1) has accepted the correctness of the decision of the King's Bench in Scales v. George Thompso11, Co., Ltd. (2 ) and in that case Rciwlatt J. had held that before two or more businesses can be coinsidered as 'the same business' they should not be easily separable and there must be, a dovetailing o~ the one. with the\n\nother. According to Mr. Mitra the transanct1ons relatmg. to the shares could have been easily separated rom the othr busmess of the company and terefore there is no mter-cn!lectton; equal!~ there is no i; nter-lacmg because the s.hare transaction busmess does not dovetail itself into the other busmess o{ the asessee company.\n\nFurther there is neither inter-dependence or ll:mty bet\\yeen the two businesses.\n\nThe concepts of inter-connectmn ad nter-lac , inter-dependence and unity are n6t free of amb1gm1¥· But\n\nmth~, Court has laid down certain objective tests for :!indmg out 1s / /\n\n(l) 63 l.T, R, 632,/\n\n(2) ll TH CISCS 83.\n\n382 SUPREME COURT REPORtS\n\n(1971] 3 S.C.R.\n\nthe existence of inter-connection, inter:.lacing inter-dependence A and unity between two or more businesses. In Commissioner of Income-tax, Madras v. Prithvi Insurance C_o. Ltd.( 1), this Court rqled that inter-connection, inter-lacing, inter-dependence and unity were furnished by the existence of common management, common business organisation, common administration, common fund and a common Pface of business. This conclusion was re~ B iterated by this very bench Jn Produce Exchange Corporation Ltd.\n\nv. Commissioner of Iome-tax, (Central Calcutta) (2). Therein the assessee company carried on business as a dealer in diverse commodities and also stock .and shares.\n\nIn the year of account 1949, it had suffered loss ofRs. 3,71,700/- in the sale of shares which the company claimed to carry forward and set off against / C the profits of subsequent years from transactions in other commodities.\n\nThe Tribunal found that there was complete unity of control and shares were one of a number of commodities in which the . company dealt in t!\\e ordinary course of business and that ·.there was no element o'f' diversity or distinction or separateness_ about the transaction in shares, and accordingly upheld the claiin.\n\nD On a reference the High Cou.rt he.Ithat the essential matter to be considered was the nature of the two lines of business and not merely their unity of control and that therefore the Tribunal erred in holding that the whole trading activity formed Ol)e business.\n\nReversing the decision of the High Court this Court !J®d that the decisive .test was unity of control and-.neHhe nature of the two E lines of business. ·\n\nFor the reasons mentioned above we allow this appeal, dis- charge the answer given by the High Court and answer the reframed question in the affirmative and in favou( of the assessee: The Revenue shall pay the costs of the assessee both in this Co11rt and in the High Court.\n\nF ·\n\n.V.P.S.\n\nAppeal allowed.\n\n(I) 631, T, R: 632. , ,,\n\n(2) 77 I. T.R. 739.", "total_entities": 37, "entities": [{"text": "STANDARD REFINERY & DISTILLERY LTD", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "STANDARD REFINERY & DISTILLERY LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX:, CALCUTTA", "label": "RESPONDENT", "start_char": 40, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, CALCUTTA", "offset_not_found": false}}, {"text": "January 18, 1971", "label": "DATE", "start_char": 79, "end_char": 95, "source": "ner", "metadata": {"in_sentence": "v.\n\nCOMMISSIONER OF INCOME-TAX:, CALCUTTA\n\nJanuary 18, 1971\n\n[K. S. HEGDE AND A. N. GROVER, JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 98, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 114, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 134, "end_char": 148, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 22(4)", "label": "PROVISION", "start_char": 163, "end_char": 171, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 654, "end_char": 662, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2443, "end_char": 2471, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil A-pl!I No."}}, {"text": "S. C. Manchanda", "label": "LAWYER", "start_char": 2635, "end_char": 2650, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, Gobind Das and D. N. Gupta, for the appel- H ~. ., ."}}, {"text": "Gobind Das", "label": "LAWYER", "start_char": 2652, "end_char": 2662, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, Gobind Das and D. N. Gupta, for the appel- H ~. ., ."}}, {"text": "D. N. Gupta", "label": "LAWYER", "start_char": 2667, "end_char": 2678, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, Gobind Das and D. N. Gupta, for the appel- H ~. ., ."}}, {"text": "S. Mitra", "label": "LAWYER", "start_char": 2708, "end_char": 2716, "source": "ner", "metadata": {"in_sentence": "~\n\nS. Mitra, S. K. Aiyar and R. N. Sachthey, for the respondent."}}, {"text": "S. K. Aiyar", "label": "LAWYER", "start_char": 2718, "end_char": 2729, "source": "ner", "metadata": {"in_sentence": "~\n\nS. Mitra, S. K. Aiyar and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2734, "end_char": 2748, "source": "ner", "metadata": {"in_sentence": "~\n\nS. Mitra, S. K. Aiyar and R. N. Sachthey, for the respondent."}}, {"text": "Hegde", "label": "JUDGE", "start_char": 2816, "end_char": 2821, "source": "ner", "metadata": {"in_sentence": "1; he Judgme~ of the Court was delivered by\n\nHegde, J. This is an assessee's appeal."}}, {"text": "Unnao", "label": "GPE", "start_char": 3157, "end_char": 3162, "source": "ner", "metadata": {"in_sentence": "At the beginning it owned a distillery at Unnao."}}, {"text": "Iainuary 29, 1946", "label": "DATE", "start_char": 3334, "end_char": 3351, "source": "ner", "metadata": {"in_sentence": ".Quring the period from Iainuary 29, 1946 to April 23, 1946, the\n\nasses~~ company purchased 41,300 shares of the said company C for Rs. '"}}, {"text": "April 23, 1946", "label": "DATE", "start_char": 3355, "end_char": 3369, "source": "ner", "metadata": {"in_sentence": ".Quring the period from Iainuary 29, 1946 to April 23, 1946, the\n\nasses~~ company purchased 41,300 shares of the said company C for Rs. '"}}, {"text": "April 30, 1947", "label": "DATE", "start_char": 3464, "end_char": 3478, "source": "ner", "metadata": {"in_sentence": "On April 30, 1947 the entire block of shares was sold to Produce Exg.hange Corporation Ltd. for Rs."}}, {"text": "Produce Exg.hange Corporation Ltd.", "label": "ORG", "start_char": 3518, "end_char": 3552, "source": "ner", "metadata": {"in_sentence": "On April 30, 1947 the entire block of shares was sold to Produce Exg.hange Corporation Ltd. for Rs."}}, {"text": "s. 24", "label": "PROVISION", "start_char": 3842, "end_char": 3847, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 3860, "end_char": 3880, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Assistant Commissioner", "label": "PETITIONER", "start_char": 4186, "end_char": 4208, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner confirmed the order of the Income-tax Officer."}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 4455, "end_char": 4463, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "April 23, 1963", "label": "DATE", "start_char": 4728, "end_char": 4742, "source": "ner", "metadata": {"in_sentence": "lly its judgment dated April 23, 1963, the High Court answered the question in the affirmative ."}}, {"text": "s. 66(A)", "label": "PROVISION", "start_char": 4932, "end_char": 4940, "source": "regex", "metadata": {"statute": null}}, {"text": "February 6, 1969", "label": "DATE", "start_char": 5010, "end_char": 5026, "source": "ner", "metadata": {"in_sentence": "The appeal came up for hearing before this Court on February 6, 1969."}}, {"text": "SUPREME COURT REPORTS [1971] 3 S.C.)l.", "label": "COURT", "start_char": 5373, "end_char": 5411, "source": "ner", "metadata": {"in_sentence": "For instance, it is not clear as to\n\nSUPREME COURT REPORTS [1971] 3 S.C.)l."}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 6471, "end_char": 6479, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Inoome-tax Act, 1922", "label": "STATUTE", "start_char": 6487, "end_char": 6514, "source": "regex", "metadata": {}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 7078, "end_char": 7086, "source": "regex", "metadata": {"linked_statute_text": "the Indian Inoome-tax Act, 1922", "statute": "the Indian Inoome-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7094, "end_char": 7108, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 31, 194", "label": "DATE", "start_char": 8252, "end_char": 8268, "source": "ner", "metadata": {"in_sentence": "6,80,046/. taken from the bank on December 31, 194 7 has been discharged from out of the income of the business; and ( 5) the share transaction work as well as the other business of the assessee company were carried on in the same place of, business."}}, {"text": "Mitra", "label": "OTHER_PERSON", "start_char": 8757, "end_char": 8762, "source": "ner", "metadata": {"in_sentence": "E It was urged by Mr. Mitra, learned Counsel for the Revenue that from the facts found by the Tribunal, it is not possible to conclude that there, was any inter-connection, inter-lacing, interdependence and unity between the transactions of the assessee company relating to the shares as well as its other business and therefore the two activities cannot be considered as \"the same F business''."}}, {"text": "Prithvi lmurance Co.\n\nLtd", "label": "ORG", "start_char": 9163, "end_char": 9188, "source": "ner", "metadata": {"in_sentence": "He contended that this Court in Prithvi lmurance Co.\n\nLtd's case( 1) has accepted the correctness of the decision of the King's Bench in Scales v. George Thompso11, Co., Ltd. (2 ) and in that case Rciwlatt J. had held that before two or more businesses can be coinsidered as 'the same business' they should not be easily separable and there must be, a dovetailing o~ the one."}}, {"text": "Rciwlatt", "label": "JUDGE", "start_char": 9328, "end_char": 9336, "source": "ner", "metadata": {"in_sentence": "He contended that this Court in Prithvi lmurance Co.\n\nLtd's case( 1) has accepted the correctness of the decision of the King's Bench in Scales v. George Thompso11, Co., Ltd. (2 ) and in that case Rciwlatt J. had held that before two or more businesses can be coinsidered as 'the same business' they should not be easily separable and there must be, a dovetailing o~ the one."}}]} {"document_id": "1971_3_383_388_EN", "year": 1971, "text": "WESTERN STATES TRADING CO. LTD.\n\nCOMMISSIONER OF INCOME TAX, CENTRAL CALCUTTA\n\nJanuary 18, 1971\n\n[J. C. SHAH, C.J., K. S. HEGDE ANDcA. N. GROVER, JJ.J\n\nIncome Tax Act 1922, s. 10(2)(vii) and: 24(2)-Appel/ant selling colliery after running it for part of the year-loss on sale written off-if allowable under s. 10(2) (vli)-Profits on shares forming part of stoc!<-in\n\ntrade of appellant's share-dealing business-Whether could be set off against business loss of previous years.\n\nThe asse~ entered, into an agreement with another company on November 2'9, 1954 for the sale of its colliery. It was provided , in the agreement that pending completion of the sale or delivery of pbssession, the vendor was to carry on business on behalf of the purhaser and .run the ro)liery as on and from September 1, 1954 on the account and at the cost .fl( the purchaser.\n\nIn the course o'f the jjppellant's assess!IJ'nt to income tax for which the accounting year was fr-Om September 1, 1954 to August 31, 1955, the Income Tax Officer, after making '3djustment for certain assets which according to him were not entitled to depreciation, worked \" out the figure of loss at Rs. 11,257 .00; however he rejected a claim to set off this loss against the appellant's other income on the view that the assessee did not carry on the business of the colliery during the year since the transfer took place with t from September 1, 1954. The Appellate Assistant Commissioner /upheld this order and, although the Tribunal, in appeal, accepted the assessee's contention that it carried on busin.,.s till November 29, 1954, if did not allow the loss on the view thaJ.it had resulted from a closing down sale. In respect of the same year, cerli dividends on shares received by the assessee were .. included in its income unper s. 12 but i:s claim to set off this income against the loss in business for earlier yealrt, upon 11 iyference made to it, htid against the appellant on botll the~ mues. On appeal to this Court,\n\nHELD : The T•.ibunal had, in clear and unequivocal tenns, upheld the.· contention of the appellant that it had actually carried on the business till November 29, 1954.\n\nSection 10(2) (Vii) provides that profits or gains shall be computed after making the allowanin respect of any such build_ ing, machinery or plant which had been so e, tc., the amount by which the written down value thereof exceeds the ount 'for which the building, machinery or plant is actually sold or its scrap value . The first proviso requires that such amount should actually be written off in the books of the assessee.\n\nIt is difficult to see how all the conditions necessary for the allowance under the above provisions were not satisfied. The colliery business was carried on by the appellant during .p~ of the releval}t accounting year. The ntachinery and plant had bt!lll used for the purpose of the business. The sale of the colliery took pla'ce during the accounting year; and. the loss of Rs. 11,237.00 was written off inthe books of t, be appellant. [387 C-F]\n\nCommisrioner of Income Tax, Bombay City II v. National Syndicate, 41 I.T .R. 225; followed.\n\nSUPREME COURT IUU'ORTS\n\n[1971] 3 S.C.R.\n\nOnce it is accepted that the colliery business was carried on for a part A of the relevant assessment year, the assessee would be entitled to. get a set off under s. 24(2) of the Act if the shares on account of which the dividendS were received formed part of the assessee's trading assets. It was not disputed that the shares formed part df the stock-in-trade of the sharedealing business of the assessee. There could be no reason, therefore, for the 3S.'lessee not being entitled to the set off claimed. [388 B-DJ\n\nC.l.T., Andhra Pradesh v. Cocanada Radhaswami Bank Ltd., 57 I.T.R. 306; Commissioner of Income Tax Madhya Pradesh v. Shrikishan Chandmal, 60 I.T.R. 303 and Commissioner of Income Tax, Ahmedabad v.\n\nBhavnagar Trust Corporation (P,) Ltd., 69 l.T.R. 278; 'referred to,\n\nC1v1L APPELLATE JURISDICTION : Civil Appeals Nos. 589' and 590 o.f 1967.\n\nc Appeals by special leave from the judgment .ancl order dated May 7, 1965 of the Calcutta High Court in Income-tax Reference Nos. 183 aind 238 of 19'61.\n\nC. K. Daphtary, B. P. Maheshwari and N. R. Khaitan, for the appellant (in both the appeals).\n\nS. C. Manchanda, S. K. Aiyar, R. N. Sachthey and B. D.\n\nSharma for the respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by\n\nGrover, 1.\n\nThese appeals by special leave from a judgment of the Calcutta High Coul\"t arise out-.of certain questions of law E which were referred relating to the assessment for the assessment year 1956-57, the relevant accounting year being from September 1, 1954 to August 31, 1955.\n\nThe assessee owned a colliery called the _Western Kajoria CollieryL ltereinafter referred to as \"colliery\". It entered into an agree- F ment with another company on November 29, 1954 to sell the colliery to it. According to this agreement the vendor was to sell and the purchaser was to buy as on and from September 1, 1954 all the underground rights etc of the colliery with the machinery and other articles detailed in the schedules annexed to the agreement. It is not necessary to give the details of the other stock-in- G trade which the piiri:haser-was to purchase.\n\nThe sale was to be completed within one year from the date of the execution of the agreement. According to clause 7 of the agreement pending completion of the sale or delivery of possession of the premises to the purchaser the vendor was to carry on business on behalf of the purchaser and run the said colliery as on and from September 1, 1954 on the account and at the cost. of the purchaser.\n\nThe purchased was to get all the profits and was liable for all the losses from that date.\n\n\\VESTERN STATES TRADING co. v. C.I.T. (Grover, J.) 385\n\nThe price fixed for the colliery was Rs. 3,50,000. The book value of the assets was Rs. 4,80,290/-. In the relevant assessment year the loss of :as. 70,290/- was claimed by the assessee. The Income tax Officer rejected. the claim for deduction of the Joss from the assessee's other income on the ground that during the accounting period the assessee did not carry on the business of colliery since the transfer took place with effect from September 1, 1954. After making adjustment for certain assets which, according to the Income tax Officer, were not entitled to .depreciation he detennined the figure of loss to be Rs. 11,251/-.. This los> was also disallowed.\n\nThe Appellate Assistant Commissioner upheld the order of the Income tax Officer.\n\nThe Appellate Tribunal, however accepted the contention of the assessee that it carried on business till November 29, 1954 but did not allow the loss as the Tribunal was of the view that it had resulted from a closing down sale.\n\nThere was another item of dividends received from certain shares held by the assessee during the relevant accounting year.\n\nThe Income tax Officer included these dividends in the Company's income under s. 12 of the Income tax Act, 1922, hereinafter called the \"Act\". The assessee failed to satisfy the authorities that the income received on account of the dividends could be set off against the loss in business of earlier years brought forward. The Tribunal made a reference of the following two questions under s. 66(1) of the Act :\n\n\"(I) Whether on the facts and in the circumstances of the case the sum of Rs. 11,257 /- being a claim for loss on sale of assets on which depreciation was allowable in earlier years is allowable under Section 10(2) (vii) in computing the total income of the assessee?\n\nF •\n\n(2) Whether on the facts and in the circumstances of the case dividend income was to be taken -as income, profits and gains of business of the company ar.d set off against losses brought forward from earlier years under section 24(2)?\"\n\nSince certain other questions had been sought to be referred by the assessee in respect of which the Tribunal declined to make a reference the asessee moved the High Court and the High Court directed that the following questions be referred :\n\n\"(3) Whether in the facts and circumstances of the case, the interest income from Western Kajoria Collieries Ltd. is income taxable under Section 10 of the Indian Income tax Act or under Section 12 of the said Act? 11-l807 Sup C.J/71\n\n\\ 4) Whether on the facts and circumstances of the .case there was any material to hold that the loan of M/ s.\n\nShri ViioY. Corporation Ltd. was . an accommodation loan not advanced during the normal course of money lending business? ( 5) If the answer to question ( 4) is that the loan was a business loan whether the debt had become bad in the year of account and deductible in computation of the total income? ( 6) Whether in the facts and circumstances of the case the Tribunal was right in refusing to allow set off of earlier year's business losses under section 24(2)?\"\n\n'Fhe two references were dealt with together by the High <::ourt.\n\nOn the first question the High Court was of the view that the sale was a closing down sale and the net result of the transaction was that the assessee was working the colliery from &ptember D 1, 1954 for and on account oi the purchaser. While recognising lliat the coal business was not stopped as from September l, ..._ '1954 the High Court came to the conclusion that it was on account \" o( the purchaser 1hat the bus:aess was carried on and any profits\n\nqtsses which might have resulted until the actual sale were to be those' of. the purchaser .and the vendor was to get only the price fixed togher with interest.\n\nThe first question was answered against the assessee.\n\nThe sec'Ond question was also answered against the assessee on the view 1hat no colliery business in the relevant yearwas carried on by it and therefore no question\n\nof set off could'arise. The third and the fourth questions were\n\nawered in accordance with the findings of fact given by the Tri- . bunal and against the assessee. The fifth question was not pressed F and was not answered.\n\nThe sixth question was covered by the second question and therefore no answer was returned wjth regard to it as well.\n\nIn the pr\"sent appeals we are concerned with the first and the second q)iestion.\n\nIt has been submitted on behalf of the appel- G lant thatthe loss of Rs. 11,257 /-was allowable under s. 10(2)(vii) of the Act in computing the total income of the appeJlant. The Tribunal had recorded a findini; r which was one of fact; that in the relevant accounting year the appellant did carry on the colliery business.\n\nThe finding of the Tribunal had not been challenged by the department.by raising an appropriate question and therefore H it was not open to the High Court to go against the finding of the Tribunal and hold that the business was carried on for and on account of the purchaser. At any rate it was an un-\n\nWESTERN STATES TRADING co. v. C.I.T. (Grover, J.) 387,\n\ndisputable faci that the appellant carried on the business upto November 29, 1954 and it was only by virtue of the agreement made on that day that it agreed to treat the business as having been transferred to the purchaser with effect from September l,\n\n1954. By means of the agreement it was not possible to alter the actual state of affairs, namely, the carrying on of the business by the appellant.\n\nIn our judgment there is a good deal of subataqce il). the above contentions urged on behalf of the appellant. The Tribunal had, in clear and unequivocal terms, upheld the contention of the appellant that it had actually carried on the business till November 29, 1954.\n\nSection 10(2)(vii) provides that profits or gains shall be computed after making the allowance in respect of any such building, machinery or plant which had been sold etc. the amount by which the wrrtten down value thereof exceeds the amounts for which the building, machinery or plant is actually sold or its scrap value.\n\nTbe first provise requires that such amount should actually be written off in the books of the assessee. It is difficult to see. how all 1he conditions necessary for the allowance under the above provisions were not satisfied.\n\nThe colliery business was carried on by the appellant during part of the relevant accounting year. The machinery and plant had been used for the purpose of the business.\n\nThe sale of the colliery took place during the accounting year. The loss of Rs. ll,2751was written off in the books of the appellant E The present case appears to be covered by the decision of this Court in Commissioner of Income tax, Bombay Citv TI v. Nmional\n\nSynicate(') in which .~II the above conditions for the applicabhty of s. 10(2)(v11) were .. .held to be present.\n\nIt was said that there was no other condition to be found in the section or in the Act which had to be complied with.\n\nThere was nothing to show that the business of the assessee should have been carried on for the whole year or that the machinery or plant should have been F\n\nused for the whole of the accounting period or if the assessee woked only for a part of .the year and then so:d out the loss that he. mcurred was not !1 bus mess loss. The decisions which were rehed upon by the High Court are hardly of much assistance in the matter and are distinuishable on facts. The first question should have been answered m favour of the assessee .\n\n. on the secon~ quest!on once it is accepted that the collierv business was {; arried on ;.or a part of the relevant assessment war the ssessee would be enlltled to get a set off under s. 24(2) of the Act tf the shares on account of which the dividends wer .. d formed part of the assessee's fad' . e rece11e the decisions of this Court (see~ J°.j ~~~~1\n\n5 • PTt tds wll settled by\n\ntable in the Punjab Police Service and was posted at Ambala.\n\nIn November 1960, he was served with a charge sheet attributing to\n\nhim arrogance towards his superior officers and indiscipline.\n\nA depanmental enqiury was admittedly held in accordance with the )l. procedure laid down therefor in the Punjab Police Rules, 1934.\n\nThe said charges having been held to have been proved, an order followed forfeiting his entire service with permanent effect. This meant bringing down his salary to Rs. 45/- per month, which would be the, salary payable to a constable at the starting point of his service. An appeal by him before the Deputy InspectocGene- C ral having failed, he filed a suit in the Court of Sub-Judge, Ambala.\n\nThe suit was on th-~ basis that the said order amounted to reduction in rank, that therefore, Art. 311 (2) of the Ce>nstitution was. attracted and that no show cause notice against the action proposed against him having been served upon him before the D said order: was passed, the order was vitiated and was bad. The Trial Court accep•d this contention and decreed the suit.\n\nAn . appeal by the appellant-State failed as the District Judge, relying on Rupnarain Singh v. State of Orissa(1) . held that the said order amounted to reduction in rank and the respondent was therefore entitled to the procedural safeguards laid down in Art.\n\nE 311 (2). A second appeal by the State before the High Court was summarily rejected.\n\nHence this appeal founded on special leave granted by this Court.\n\nThe only question arising in this appeal, the facts not .being in dispute, is whether the order forfeiting the respondent's service, which meant reducing his salary to the starting point in the time- F scale for constables, amounted to reduction. in rank witflln the meaning of Art. 311 (2).\n\nThe respondent being a constable, there was no question of his being reduced from a higher post or rank to a lower post or rank. The order, nonetheless, reduced the emoluments received by him as it deprived him of the increments earned by him as a result of the approved service, he had G . put iri, having been forfeited.\n\nIt also affected his seniority, and therefore, chances of promotion.\n\nThe question is, whether for that reason the order is tantamount to reduction in rank attracting Art. 311(2),\n\nRule 1.13 of he PuRjab Police Service Rules (hereinafter referred to as the Rules) provides that a 'gazetted police officer'' H means a p01ice officer appointed under s. 4 of Act V of 1861,\n\n(I) A.l.R.1959 Orissa 167.\n\n' \"\n\nand includes the Inspector-General, Deputy Inspectqrs-General,.\n\nAssistant Inspectors-General, Superintendents, Assistant Superintendents and Deputy Superintendents.\n\nThe expression \"enrolled police officer\" means police officers appointed under s. 7 of the said Act and includes inspectors, sergeants, sub-inspectors, asistant sub-inspectors, head contables and constables.\n\nThe expression \"upper subordinate\" includes all enrolled police officer of and above the rank of assistant sub-inspector, and the expression \"lower subordinate\" includes all other enrolled police officers.\n\nThere is thus a hierarchy in the Police Service of the State comprised of several posts, the post of a constable being the last rung in the ladder. Rule 13.1, which deals with promotion of police officers from one rank to another, provides that such promotions from one rank to another and from one grade to another in the same\n\nrank shall be made by selection tampered by seniority . Cl. 3 of that rule lays down that for purposes of regulating promotion. amongst enrolled police officers, six promotion lists, A, B, C, D, E and F should be maintained. Lists A, B, C and D'are meant to regulate promotion to the selection grade of constables and to the ranks of head constables and assistant sub-inspectors.\n\nList E iregulates promotion to the rank of sub-inspector and List F regulates promotion to the rank of Inspector.\n\nRule 13.5 deals. with promotion of constables to selection grade and r. 13.6 provides that a list, called List A, shall be maintained by each Superintendent of Police of constables eligible under r. 13.5 for piromotion to the s.election grade of constables. Rule 13.7 provides for a list, called List B, divided into two parts, namely, selection\n\ngrade constables considered suitable as candidates for the Lower School course at the Police Training School, and constables, selection or time-scale, considered suitable for drill and other special courses at the Police Training School. Rule 13.8 lays down that promotion to the post of head constable has to be made in accordance with principle described in sµb-rules (1) and (2) of r. 13.1.\n\nRule 13.8-A . provides that infliction of any major punishment would be a bar to admission to or retention in lists A, B or C.\n\nRule 16.1 lays down diverse punishments which can be awarded to members of the service in accordance with the provisions con-· tained in the Rules.\n\nThese punishments are : ( 1) dismisal,\n\n(2) reduction, (3) stoppage of increment or forfeiture of approv-· ed service for increment, ( 4) entry of censure, ( 5) confinement to qll'.lrters for a period not exceeding 15 days, ( 6) extra guards, fal!gue or other uty, an~ punishment drill for certain days. Under r. 16.1(3~, a m~1or pu?1shmen.t means any authorized punishment H of educt!on: w1thholdmg of mcrements, forfeiture of approved semce, d1sm1ssa1 and every judicial conviction on a criminal . charge. Rule 16.4 defines 'reduction' and provides that a police officer may be reduced (a) to a lower rank (except in the case\n\n-0f sergents and of constables on the time-scale), (b) from the selection grade of a rank to the time-scale of the same rank, ( c) if in a graded rank to a lower position in the seniority list of\n\nhis grade or to a lower grade in his rank. Rule 16.5 provides that the increment of a police officer on a time-scale may be withheld as a punishment. Cl. (2) of that rule provides that approved service for increment may be forfuited, either temporarily B or permanently, and such forfeiture may entail either the deferment of an increment or increments or a reduction in pay.\n\nIt further provides that the order must state whether the forfeiture of approved service is to be permanent, or, if not, the period for which it has been forfeited.\n\nThus, under rules 16.4 and 16.5 the two punisliments of reduction C and forfeiture of service are two distinct puni l'P.nts. Rule 16.24 lays down the procedure to be followed in deparunental enquiries.\n\nCl. (ix) of that rule clearly provides that it is only in the case of an order of dismissal or reduction in rank that a second show cause notice against th!) proposed action against a police officer has to be served before an order is passed against him. Such a D second show cause notice is, therefore, not required to be served in the case of other major or minor punishments. There is no dispute that ic the present case the procedure laid down in these Rules and applicable to the respondent was followed.\n\nThe contention, however, was that though the Rules distinguish E the two punishments of reduction and forfeiture of service and treat them as distinct, there were certain decisions of this Courl which have held that for an order to amount to reduction iP rank within the meaning of Art. 311 (2) it was necessary that it must actually reduce a government servant from a higher to a lower post or rank, and that even if the order affected adversely his seniority or chances of promotion within the rank or cadre to F which he belongs, it would still constitute reduction in rank. •-\n\nParshotam Lal Dhingra v.\n\nUnion of India(') was one such case on which counsel leaned heavily. But the question there was whether the reversion of the the appellant from Class II service, wherein he was at the relevant time officiating, to Class III ser- G vice to which he permanently belonged, amounted to punishment, and therefore attracted Art. 311 (2), The decision laid down the principle 'that reduction in rank would be punishment if it carried with ft penal consequences and that the two tests to be applied were ( 1) whether the servant had the right to the post or rank and (2) whether evil consequences, such as forfeiture of H pay r allowances, loss of seniority in his substantive rank, stoppage\n\n(I) [19581 s.c.R. 828.\n\n. )\n\nor post-ponement of future chances of promotion followed as a result of reduction in rank. The appellant in that case was holding an officiating pqst and had therefore no right under th.e Railway Code to continue in it.\n\nThe Court held that since under the general law such appointment was terminable at any time on reasonable notice, the reduction could not operate as a forfeiture B of any right, and therefore, the order could not be said to have visited him with any evil consequences. Consequently, it did not amount to reduction in rank by way of punishment. The decision also laid down that the words \"dismissal'', \"removal\" and \"reduction in rank\" used in Art. 311 (2) were words of art, having\n\ntechnical meanings, they having been adopted from service rules prevailing earlier, such as Classification Rules of 1920 and 1930, and having therefore acquired well-known meanings. Under those rules, dismissal, removal and reduction in rank were major puni~ shrnents provinding special procedural protection.\n\nOn examination of the history of the service rules, s. 96B(i) of the Government of India Act, 1915, and s. 240 of the 1935 Act, the Court h.eld that \"both at the date of the commencement of the 1935 Act and of our Constitution the words \"dismissed\", \"removed\" and\n\n\"redur.ed in rank\", as used in the service rules, were well-understood as signifying or denoting the three major punishments which could be inflicted on Government servants\".\n\nThe decision concluded that \"the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or the reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold post or that rank and to get the emoluments and other benefits attached thereto\".\n\nThe passage in the judgment emphasised before us was :\n\n\"A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, than the very reduction from that rank will operate as a pena}tv, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarilv be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is\n\nor is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.\"\n\nAccording to this decision, reduction in rank within the meaning of Art. 311 (2) means reduction from a higher to a lower rank or post in the hierarchy of the service to which a government B servant seeking protection of that article belongs and not reduction in the same rank; e.g., losing places in seniority in the rank to which he belongs.\n\nShri Madhav Laxman Vaikunthe v. The State of Mysore(') another decision relied on by counsel, was a case of a Mamlatdar, officiating s a District Deputy Collector. His reversion from C the officiating post to his permanent post was held to be p; inishmen attracting Art. 311 ( 2).\n\nThis was a clear case of reduction in rank as the reversion brought down the appellant from a higher to a lower post. It did not merely affect his seniority or the stage at which he was in the time-scale to which he belonged in the hierarchy of service.\n\nThe decision in point really is. The High Court Calcutta v.\n\nAntal Kumar Roy(') where the respondent, a Munsif, was excluded by the High Court from consideration for the post of a Subordinate Judge for a year thereby depriving him eight places in the cadre of Subordinate Judges when he was appointed an Additional Subordinate Judge.\n\nThe respondent's contention was E that such an e, Kclusion amounted to withholding of promotion or reduction in rank. The first part of the contention was rejected on the ground that he had no right to pormotion and. the. second on the ground that deprivation of eight places in seniority in the same rank did not constitute reduction in rank.\n\nThis decision was foJ.lowed in Shit/a S. Srivastava v. North Eastern Railway(') F where it was held that the removal of the appellant's name from a provisional panel of persons for consideration for higher posts did not attract Art. 311 ( 2) as it did not amount to reduction in rank. The Court held that the expression \"rank\" in Art. 311 (2) had reference to a person's classification and not his particular place in the same cadre in the heirarchy of the service to which G he belongs.\n\nIt is thus clear that reduction in rank within the meaning of Art. 311 (2), as the expression itself suggests, means reduction from a higher to a lower rank or post and not merely losing places in the rank or cadre to which the Government servant belon2s, and consequently, his seniority within such cadre or rank.\n\nII {\n\n(1) [196211S.C.R.886.\n\n(2) [1963]1S.C.R.437-\n\n(J) [1966)3 S .. C.R. 61.\n\nPUNJAB v. KlSHANDAS (She/at, !.) 395\n\nThis would be so, even if as a result of the Government's action he loses a higher salary or his chances of promotion to a higher post are reduced. For such action, the remedy would be under the rules governing the service and not under Art. 311(2) as such action does not amount to reduction in rank. as understood. for the purposes of Art. 311 ( 2).\n\nCounsel for the respondent, however, argued that there were other decisions which have held otherwise and assisted him.\n\nP. C. Wadhwa v. Union of India(') was one such decision which, he thought, assisted him. In that case, the appellant was officiating in the senior time-scale and was posted at Ferozepore as an Additional Superintendent of Police. In July 1958, he was re\\erted to his substantive post. The reason for the reversion was that he was tried as a Superintendent of Police and was found to be immature. The record showed that the reversion was not due to t.he return of the permanent incumbent from leave or deputation or for any other administrative reason and other officers junior to him continued in the senior time-scale while he was reverted. The record also revealed that an enquiry was not resorted to only for the reason that it would take a long time. His contention in these circtimstances was that his reversion amounted to reduction in rank.\n\nThat was accepted because it would seem from the facts that the reversion was from senior time-scale to junior time-scale of the service. Though both the posts were cadre posts in the Police Service, the reversion was from the post of the Additional Superintendent of Police to one of Assistant Superintendent of Police, the former obviously being a post higher than the latter.\n\nAlthough both the posts were in the same cadre, promotion from the junior to the senior time-scale was by seniority. It is clear, therefore, that appointment of one in the junior time-scale to a post in the senior time-scale was promotion, and therefore,. appointment to a higher post. Such is not, however, the position in the instant case.\n\nDubesh Chandra Das v. Union of India(\") was another decision relied upon by Mr. Nag. The appellant there was the Chief Secretary of Assam and a member of the Iridian Civil Service.\n\nHe was appointed a Secretary in the Union Government, a tenure post, the tenure period of which was to expire in July 1969. In September 1966, he was asked to choose between reversion to the service of his parent State or compulsory retirement.\n\nHe complained against the order by a writ petition contending that the order was a stigma and amounted to reduction in raRk, which, therefore, could not be passed without undergoing the pro cedure laid down in Art. 311 ( 2). His appointmeJ;1t as the Secre-\n\n(I) [1964) 4 S.C.R. 598.\n\n(2) A.!.R. 1970 S.C. 77.\n\ntary at the Centre was not by way of deputation but was by way A <>f appointment to a tenure post. This Court held, on an exami- .nation of the rules, that cadres for the Indian Administraiive Services were to be found in the States only, thiit there were no cadres in the Government of India, that a few of them were, however, intended to serve at the Centre and when they did so, they enjoyed better emoluments and better S'latus.\n\nSuch an appoint- B ment, the Court held, meant promotion to a higher post. In the circumstances, the order amounted to the appellant's reduction from a i1igher to a lesser rank. This, again, was a case where the government servant was reverted from a post higher than the post of the Chief Secretary, Assam, and not a reduction in the same time-scale post or deprivation of places in the same time-scale C post thereby adversely affecting his seniority therein or chances of promotion.\n\nThe decision of the High Court of Orissa in Rupnarain Singh\n\nv. Orissa(') would apparently assist the respondent, for, the impugned order there was similar to the one in the instant case.\n\nThat order directed that the petitioner, who wathen serving as a D forester, be reduced to the lowest scale of Rs. 50/- in the scale of pay of Rs. 50-2-70 fixed for the foresters. The High Court upheld! the contentions of the petitioner, viz., (1) that the order was punishment, and (2) that it amounted to reduction in rank within the meaning of s. 240(3) of the 1935 Act and Art. 311(2). These conclusions were reached on two premises. The first was that r. 2 of the Bihar and Orissa Subordinate Services Discipline E and Appeal Rules in cl. (iii) provided, amongst others, the punishment of \"reduction to a lower post or time scale or to a lower stage in the time-scale\". Following the decision in Afza/ur Rahman v. Emperor(') where the Court had observed that in construing s. 240 of the 1935 Act, the long standing service prac- tice based on statutory rules in force Jong before the passing of F the 1935 Act, and which were continued in force by that Act, should be considered, the High Court held that the expression \"reduction in rank\" in s. 240(3) must also include reduction to a lower stage in the time-scale as r. 2.(iii) had treated reduction to a lower post and \"reduction to a lower stage in the time-scale\" as one kind of punishment. Such a reasoning does not apply to the G present case because r. 16.1 of the Punjab Police Rules makes a dear distinction between \"reduction\" and stoppage of increment or forfeiture of approved service for increment, the two being distinct and separate punishments permissible under that rule. The second premise upon which the High Court reached the said conclusions rested on the observations in Dhingra's case(•), wherein H this Court laid down the criterion to judge whether an order is a\n\n(I) A LR. 19;9 Qrissa 167 P.C.\n\n(2) A.LR. 1943 F.C. 18.\n\n(3) [1958] S.C.R. 828.\n\nPUNJAB v. KISHANDAS (She/at, J.) 397\n\nA punishment or not by observing that it would be punishment if the order entailed or provided for forfeiture of pay or allowances or loss of seniority in his substantive rank or stoppage or postponement of his future chances of promotion. The passage relied on the High Court laid down detenninents for treating an order as one of punishment and not a test for reduction in rank. As already B stated, in Dhingra's case(') the impugned order was held to be one of reduction in rank because the appellant there was reduced from Class II to Class III service, i.e., from a higher to a lower post, the time-scales of the two posts being different. The reduction of rank was held not to be a punishment because the appelc\n\nlant was not entitled to the better post wherein he was merely officiating and therefore did not visit him with any evil consequences. The observations relied on by the High Court thus related to the question whether the impl!gned order was one of punishment and not for deciding whether it amounted to a reduction in rank and were, therefore, not apposite. The basis for the second premise of the High Court, therefore, was not correct and therefore cannot elp the respondent.\n\nThe aforesaid analysis of the decisions leads us to the conclusion that the expression \"reduction in rank\" in Art. 311 (2) has to be construed according to the well-established meaning it has acquired, a~ in the case of the other two expressions, namely, dismissal' and 'removal' in that article, under the various ser1ice rules and the provisions in that regard in the Constitution Acts of 1915 and 1935. The expression \"reduction in rank\" in the article, therefore, means reduction from a higher to a lower rank or post when imposed as a penalty. Therefore, an order forfeiting the past service which has earned a government servant increments in the post or rank he holds, !wwsoever adverse it is to him, aff.ect- F ing his seniority within the rank to which he belongs or his future chances of promotion does not attract the article.\n\nHis remedy, therefore, is confined to the rules of service governing his post. In our view, neither Parshotam Lal Dhingra's case( 2 ) nor Rupnarain Singh's case(3 ) assisted the respondent, as the first does not lay down what he contended and the , second was not correctly\n\nG decided.\n\nThe result is that the State's appeal succeeds and must be allowed. Consequently, the respondent's suit has to be dismissed.\n\nIn the circumstances of the case, however, there will be no order as to costs.\n\nAppeal aNowed.\n\n(2) [19S8] S.C.R. 828", "total_entities": 51, "entities": [{"text": "STATE OF PUNJAB", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "KISHANDASS January", "label": "RESPONDENT", "start_char": 17, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "KISHAN DASS", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 50, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 90, "end_char": 111, "source": "regex", "metadata": {}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 583, "end_char": 594, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 930, "end_char": 938, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1963] 1 S.C.R. 437", "label": "CASE_CITATION", "start_char": 1791, "end_char": 1810, "source": "regex", "metadata": {}}, {"text": "[1963] 3 S.C.R. 61", "label": "CASE_CITATION", "start_char": 1860, "end_char": 1878, "source": "regex", "metadata": {}}, {"text": "Rupnarain Singh", "label": "OTHER_PERSON", "start_char": 1965, "end_char": 1980, "source": "ner", "metadata": {"in_sentence": "Rupnarain Singh, State of Orissa, A.I.R. 1959, Orissa 167, P. C.\n\nv. Union of India, A.IR 1970 S.C. 77, distinguished."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 2220, "end_char": 2248, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 2456, "end_char": 2469, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan, for the appellant."}}, {"text": "A. N. Nag", "label": "LAWYER", "start_char": 2491, "end_char": 2500, "source": "ner", "metadata": {"in_sentence": "A. N. Nag, for the respondent."}}, {"text": "Shelat", "label": "JUDGE", "start_char": 2567, "end_char": 2573, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShelat, J.\n\nThe respondent was at all material times a con>table in the Punjab Police Service and was posted at Ambala."}}, {"text": "Punjab Police Rules, 1934", "label": "STATUTE", "start_char": 2924, "end_char": 2949, "source": "regex", "metadata": {}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 3442, "end_char": 3450, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Police Rules, 1934", "statute": "the Punjab Police Rules, 1934"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 4418, "end_char": 4426, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 4924, "end_char": 4935, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "PuRjab Police Service Rules", "label": "STATUTE", "start_char": 4954, "end_char": 4981, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 5105, "end_char": 5109, "source": "regex", "metadata": {"linked_statute_text": "PuRjab Police Service Rules", "statute": "PuRjab Police Service Rules"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 5408, "end_char": 5412, "source": "regex", "metadata": {"linked_statute_text": "PuRjab Police Service Rules", "statute": "PuRjab Police Service Rules"}}, {"text": "Cl. 3", "label": "PROVISION", "start_char": 6130, "end_char": 6135, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 9954, "end_char": 9962, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 10598, "end_char": 10606, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 11658, "end_char": 11666, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 96B(i)", "label": "PROVISION", "start_char": 12061, "end_char": 12070, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1915", "label": "STATUTE", "start_char": 12078, "end_char": 12107, "source": "regex", "metadata": {}}, {"text": "s. 240", "label": "PROVISION", "start_char": 12113, "end_char": 12119, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 14031, "end_char": 14039, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 14574, "end_char": 14582, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "High Court Calcutta v.\n\nAntal Kumar Roy", "label": "COURT", "start_char": 14882, "end_char": 14921, "source": "ner", "metadata": {"in_sentence": "The High Court Calcutta v.\n\nAntal Kumar Roy(') where the respondent, a Munsif, was excluded by the High Court from consideration for the post of a Subordinate Judge for a year thereby depriving him eight places in the cadre of Subordinate Judges when he was appointed an Additional Subordinate Judge."}}, {"text": "Munsif", "label": "RESPONDENT", "start_char": 14949, "end_char": 14955, "source": "ner", "metadata": {"in_sentence": "The High Court Calcutta v.\n\nAntal Kumar Roy(') where the respondent, a Munsif, was excluded by the High Court from consideration for the post of a Subordinate Judge for a year thereby depriving him eight places in the cadre of Subordinate Judges when he was appointed an Additional Subordinate Judge."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 15753, "end_char": 15761, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 15855, "end_char": 15863, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 16076, "end_char": 16084, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 16684, "end_char": 16695, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 16784, "end_char": 16792, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Ferozepore", "label": "GPE", "start_char": 17097, "end_char": 17107, "source": "ner", "metadata": {"in_sentence": "In that case, the appellant was officiating in the senior time-scale and was posted at Ferozepore as an Additional Superintendent of Police."}}, {"text": "Nag", "label": "OTHER_PERSON", "start_char": 18573, "end_char": 18576, "source": "ner", "metadata": {"in_sentence": "Dubesh Chandra Das v. Union of India(\") was another decision relied upon by Mr. Nag."}}, {"text": "Assam", "label": "GPE", "start_char": 18625, "end_char": 18630, "source": "ner", "metadata": {"in_sentence": "The appellant there was the Chief Secretary of Assam and a member of the Iridian Civil Service."}}, {"text": "Iridian Civil Service", "label": "ORG", "start_char": 18651, "end_char": 18672, "source": "ner", "metadata": {"in_sentence": "The appellant there was the Chief Secretary of Assam and a member of the Iridian Civil Service."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 19131, "end_char": 19139, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1964) 4 S.C.R. 598", "label": "CASE_CITATION", "start_char": 19183, "end_char": 19202, "source": "regex", "metadata": {}}, {"text": "Government of India", "label": "ORG", "start_char": 19504, "end_char": 19523, "source": "ner", "metadata": {"in_sentence": "This Court held, on an exami- .nation of the rules, that cadres for the Indian Administraiive Services were to be found in the States only, thiit there were no cadres in the Government of India, that a few of them were, however, intended to serve at the Centre and when they did so, they enjoyed better emoluments and better S'latus."}}, {"text": "High Court of Orissa", "label": "COURT", "start_char": 20172, "end_char": 20192, "source": "ner", "metadata": {"in_sentence": "The decision of the High Court of Orissa in Rupnarain Singh\n\nv. Orissa(') would apparently assist the respondent, for, the impugned order there was similar to the one in the instant case."}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 20688, "end_char": 20697, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 20718, "end_char": 20729, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 240", "label": "PROVISION", "start_char": 21119, "end_char": 21125, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 21389, "end_char": 21398, "source": "regex", "metadata": {"statute": null}}, {"text": "Dhingra", "label": "OTHER_PERSON", "start_char": 21990, "end_char": 21997, "source": "ner", "metadata": {"in_sentence": "The second premise upon which the High Court reached the said conclusions rested on the observations in Dhingra's case(•), wherein H this Court laid down the criterion to judge whether an order is a\n\n(I) A LR."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 23513, "end_char": 23521, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parshotam Lal Dhingra", "label": "OTHER_PERSON", "start_char": 24342, "end_char": 24363, "source": "ner", "metadata": {"in_sentence": "In our view, neither Parshotam Lal Dhingra's case( 2 ) nor Rupnarain Singh's case(3 ) assisted the respondent, as the first does not lay down what he contended and the , second was not correctly\n\nG decided."}}]} {"document_id": "1971_3_398_405_EN", "year": 1971, "text": ":398\n\nLIBERTY TALKIES & ORS.\n\nSTATE OF GUJARAT January 21, 1971\n\n{J.C. SHAH, CJ., K. S. HEGDE AND A. N. GROVER, JJ.]\n\nBombay Entertainments Duty Act (1 of 1923), ss. 3 and 4.and r. 7 of tlze Rules made thereunder-Scope of.\n\nFrom March 1960 to January 1962 entertainment duty, was1 levied on the appellants at the rates prescribed in s. 3 of the Bombay Entertainment Duty Act, 1923, on the net price receivable by the proprietor of a theatre and not on the total amount including entertainment duty collected from C visitors.\n\nThereafter entertainment duty was levied on the aggregate of the net value of the ticket and duty paid by the • visitors. The appellants challenged the validity o'f the levy but the High Court dismissed their petition.\n\nJn appeal to this Court,·\n\nHELD: (1) Bys. 3 of the Act duty is leviable at the rates prescribed D on all payments for admission and the method of levy is prescribed by s.\n\n4. Under s. 4(1) on the ticket for admission to any. entertainment, an impressed, einbossed, engraved or adhesive stamp issued by the State Government of the value specified in s. 3 must 'be affixed.\n\nThe definition of 'payment for admission' ins. 2(b)- includes payment for any purpose '\"hat soever connected with an entertainment which a person is required to make as. a condition of attending. or continuing to attend the entertainment. The price which the visitor pays for a ticket for admission to the entertainment E is thus the value uf the stamp affixed and the net value -0f the ticket. and the proprietor of the theatre is therefore liable to pay entertainment duty on the gross sum received from a visitor. r402 E, H; 403 A-~; 404 Dl\n\n(2) The use of the expression \"affixed to it a stamp of the value of the duty payable out of the said price di admrssiori\" \"in rule 7 of the rules framed under the Act does not support the view that the amount of cntert.ainment duty represented by the ticket alone is payable by the pro- F prietor. It only means that the proprietor shall specify on the ticket the amount chargeable by him to the visitor. [403 :C-G]\n\n( 3) !he proprietor thus passes on a part of the duty payable by him to the VIS1tor but he does not act as an agent of the,, GOvernment for col- 1ccting the duty, because. under ss. 3 and 4 tl}_e _liability for pavrncnt cf the duty is in1posed upon the proprietor and not upon the viSitors to the G theatre. [402 H; 403 BJ\n\n( 4) A proprietor paying entertainment duty on the total amount received by him lfrorri the visitor will never be able to col!ect the full amount of entertainment duty from such visitor.\n\nA part of the duty pavable b1 him will haye to come ?lit of the amo.unt receivd y him as the net charge\n\nfor a ticket. But questions of hardship cannot 1ushfy a departure from the provisions of ss. 3 and 4 o'f the Act The Legislature must be deemed to H have contemplated that only a part of the entertainment duty l1evied by the ;'1- Government must be collected from the visitors to the theatre and the balance should be paid by the proprietor. [404 F-H]\n\n(5) But the Act contains no provision for reopening assessments already made and the State cannot therefore reopen the concluded assessments prior to January 1962. [405 Bl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 416 to 426 of 1967.\n\n8 Appeals by special leave from the judgment and order dated November, 8, 9, 1968 of the Gujarat High Court in Special Civil Applications Nos. 595, 634, 636, 693, 694, 695, 696, 771 of 1962, 57 and 128 of 1963 and 39 of 1964.\n\nS. T. Desai, I. N. Shroff and M. N. Shroff. for the appellants (in al! the appeals).\n\nC. K. Daphtary, K. L. Hathi, B. D. Sharma for S. P. Nayar, for the respondents (in all the appeals l.\n\nThe Judgment of the Court was delivered by\n\nShah, C. J.-Under the Bombay Entertainments Duty Act 1 of 1923 entertainment duty is chargeable on the total collections from the visitors to a theatre. On March 18, 1960 the Collector, Junagarh issued instructions to his subordinate officers directing\n\nthem to levy entertainment duty at the prescribed rate only on the net price recetvable by the proprietor of the theatre and not on the total amountlrrcluding entertainment duty collected from the visitors. Entertainmeni'11ufy so computed was paid till January 1962 by the appellants who own a theatre at Junagadh.\n\nOn January 11, 1962 the Government of Gujarat issued a memorandum thal \"the duty (entertainment duty) is a percentage ot the payment for admission i.e. the amount which a person pays for bei, ng admitted to witness the entertainment, inclusive of the various items mentioned in clause (b) of section 2 of the Bombay Entertainment Dut, r Act, 1.923.\n\nThe amount which a person pays includes both sums-(i) what the Manager has to pay by way of duty; and (ii) what the Manager can retain as 'Net receipts' and hence the duty has to be barged on the total amount payable by the person buying the ticket, including any 'um charged separately by way of duty.\" Pursuant to that notification entertainment duty was levied on the gross sum leviec!\n\nand paid by the visitors for admission to the theatre.\n\nBy a petition moved in the High Court (jf Gujarat the appellantschallenged the validity of the rnemorandum dated January 11, 1962 and the notice of demand issued pursuant thereto and urged that the primary_ liability for payment of entertainment duty is by the Act impo5ed upon the visitor to the theatre, and that the proprietor of the theatre i~ merely an agent of the Govern~\n\nment for collecting the duty : and that the proprietor has under\n\nthe Act to pay the duty which he collects from the visitors; and A that he cannot be required to pay an amount which he does not collect from the visitors.\n\nThe High Court rejected the petitions and against the order of the High Court this appeal has been cpreferred.\n\n The Act and the Rules framed thereunder prescribe the method of collection of entertainment duty. On each ticket issued to a B person entitling him to enter the theatre for entertainment, a revenue stamp of a specified face value is affixed.\n\nThe total amount that the visitor pays consists of two items, the net charge which the proprietor makes for the ticket and the value of the stamp.\n\nUnder the memorandum issued on March 18, 1960 the aggregate of the duty received by the appellants was paid over C to the Government and the net value of. the tickets remained with the proprietor.\n\nUnder the memorandum issued on January 11, 1962, the duty payable to the Government was calculated at the appropriate rate applicable to the aggregate of the net valur. of the ticket and the duty paid by the visitor. In consequence of the notification the proprietor could collect from the visitor the D amount shown as entertainment duty on the ticket but he was obliged to pay duty equal to the amount computed on the total amount paid by the visitor at the appropriate rate. The difference between the entertainment duty computed on the total value of the ticket and the value of the stamp affixed on the ticket was therefore borne by the proprietor.\n\nThe relevant provisions which have a bearing on the question are these : Section 3 of the Act is the charging section. Insofar as it is relevant it provides :\n\n\" ( 1) There shall be levied and paid to the State Government on all payments for admission to any entertainment a duty (hereinafter referred to as \"entertainments duty\" at the following rate--\n\n(a) . • • • • ( b) in any other case--\n\n• • • • • IL in any other area-\n\n(i) out of the first 100 naye paise of payment for ad- 30 per cent of such mission payment.\n\n(ii) out of the next 100 naye paise of payment for ad- 45 per cent of such n1ission payment.\n\n(iii) out Or the balance of the total payment for ad- 60 per cent of such n1ission payment.\n\n(IA) • * • • * ( 2) Where the payment for admission to an entertainment is made by means of a lump sum paid as a subscription or contribution to any society, or for a\n\n,_ ..\n\n' •\n\n.; JI ,, ~\n\nseason ticket or. for the right of admission to a series of entertainments or to any entertainment during a certain period of time, or for any privilege, righ~. facility or thing combined with the right of admission to any entertainment or involving such right of admission without further payment or at a reduced charge, the entertainments duty shall be paid on the amount of the lump sum.\n\nSection 3A provides for payment of duty at the appropriate rates on complimentary tickets.\n\nBy that section entertainment duty at the appropriate rates prescribed under s. 3 is payable as if full c payment had been made for admissioo to the entertainment according to the class of seat or accommodation which the holder of such ticket shall be deemed to t.ave been admitted for payment for the purpose of the Act.\n\nSection 4 provides for the method of levy of duty. It provides, insofar as it is relevant :\n\n\"(1) Save as otherwise provided by this Act, no person other than a person who has to perform some duty in connection with an entertainment or a duty imposed upon him by any law, shall be admitted to any entertainment, except with a ticket stamped with an impressed, embossed, engraved or adhesive stamp (not before used) issued by the State Government for the\n\npayments for admission to the entertainment tainments duty has been paid. -\n\n(2) The State Government may, on the application of any entertainment in respect of which the entertainment duty is payable under section 3, allow the proprietor on such conditions as the State Government may prescribe to pay the amount of the duty due-\n\n(a) by a consolidated payment of a percentage to be fixed by the (State Government) of the gross sum received by the proprietor on account of payments for admission to the entertainment and on account of the duty;\n\n( b) in acCQrdance with returns of the payments for admission to the entertainment and on account of the duty;\n\n( c) in accordance with the results recorded by any mechanical contrivance which automaticafly registers the number of persons admitted.\n\n(3) 14-L807Sup CI/71 • • • . ..\n\nSectin 6 provides for exemptions from payment of entertainment A duty m certam specific classes of cases. Section 7 authorises the State qovernment to make rules for securing the payment of the\n\nentetamment duty and generally for carrying into effect the prov1S1ons of t!ie Act. The expression \"entertainment\" is defined m s. 2(a) as mcludm.g any exhibition, performance, amusement, game or sport to which , persons. are admited for payment.\n\nA B cmematograph. show 1s entertamment\" within the meaning of the :\\ct. Sectmn 2(b) defines \"payment for admission\" as in- .cJudmg-\n\n(ii) any payment for seats or other accommodation in a place of entertainment.\n\n(iv) any payment for any purpl'se whatsoever connected with an entertainment which a person is required to make as a condition of attending or continuing to attend the entertainment in addition to the payment, if any, for admission to the entertainn1ent;\"\n\nSection 2 ( c) defines \"proprietor\" in relation to any entertainment as including any person responsible for, 0r for the time being in charge of, the management thereof.\n\nBy section 3 the duty is levied at the rates prescribed on all payments for admission and the method of levy is prescribed by s. 4(2). The proprietor is enjoined bys. 4(1) not to admit any person to an entertainment without a ticket. The proprietor pays the entertainment duty determined in the manner provided by clauses (a), (b) & (c) of sub-clause (2) of s. 4.\n\nHe is permitted by the Act to collect entertainment duty on the net amount receivable by him, but he does not on that account become an agent for the Government.\n\nThe charge is by s. 3 on payments received by the proprietor for admitting visifors to entertainment.\n\nEven where a ticket is not issued for an individual show but payment is received \"by means of a lump sum\" as subscription or contribution to any society; or by season ticket or for the .righLof admission to a series of entertainments or during a certain period of time, or for any privilege, right, facility, thing combined with the right of admission to any entertainment without further payment or at a reduced charge, the entertainments duty is payable on the Jump sum : see s. 3 (2). Where a complimentary ticket is issued the duty is payable by the proprietor at the appropriate rate prescribed under the Act as if full payment had been made for admission to the entertainment.\n\nThese provisions leave no room for doubt that liability for payment of the duty is imposed upon the proprietor and not upon the visitors to t.he theatre.\n\nUnder s. 4 ( 1) on the ticket for admission to any entertainment,\n\nan impressed,-embossed, engraved or adhesive stamp (not before used) issued by the State Government of the value specified in s. 3 must be affixed. The price which the visitor pays for a ticket for admission to an entertainment is the value of the stamp affixed and the net value of the ticket. But the •statutory liability to pay the entertainment duty is imposed upon the proprietor and B not on the visitor. The proprietor it is true passes on a part of the duty payable by him to the vjsitor, but even in respect of that amount he does not act as an agent of the Government.\n\nThe rules framed under the Bombay Entertainments Duty Act, 1923 do not also suggest a contrary $cheme. Rule 7, insofar as 1t is relevant, provides :\n\n\"Except as provided in rules 15 and 23, every dutiable ticket, not being a complimentary ticket, issued on payment for admission to entertainment shall be in three parts. One part shall remain on the ticket book and the remaining two parts shall be detached therefrom and u issued to the purchaser. Every dutiable ticket shall have €ach part clearly marked with the price of admission, and with the date and show for which it is available and also with the book number and the serial numbers\n\n• • • • • and\n\nshall also have securely affixed to it a stamp of the value of the duty payable out of the said price of admission. • • • • *\"\n\nA similar provision is made in respect of \"plural tickets\" where a number of persons are to be admitted on a single ticket. The use of the expression \"affixed to it a stamp of the value of the duty payable out of the said9 price of admission\" does not support the view that the amount of entertainment duty represented by the ticket alone is payable by the proprietor.\n\nIt onlv means that the proprietor shall specify on the ticket the amoynt\n\nchargeable by him to the visitor and the duty in respect of which the stamp has been affixed.\n\nRule 7 cannot operate to modify the charging section 3, nor section 4 relating to the method of levy. Rules 15 and 23 which are referred to in r. 7 also do not support the submission made by counsel for the appellant. Rule 15 deals with unstamped tickets and r. 23 deals with th' fonn of exemption granted by the District Magistrate or the Commissioner of Police.\n\nRule 16 imposes a duty upon every proprietor either making a consolidated payment under cl. (a) of sub-s. ('.!! of s. 4 or making payment in accordance with return of .the payments for admission under cl. (b) of. sub-s. (~) of s. 4, within ten days of the date of entertainment and to submit to the prescribed\n\nofficer a return in Form \"B\" showing the number of tickets (not A being complimentary tickets) issued at each rate the serial number of tickets issued, the gross amount received by sale of tickets and the amount of duty payable to the State Government. Under section 4(2) (a) the consolidated payment is a percentage of the gross sum (not charge and the entertainment duty) received by the proprietor on account of payments for admission to the enter- B ta!nment. That duty is charged under s. 4 ( 2) (b) in accordance - With the returns relating to the payments for admission to the entertainment, under r. 16 the duty is again chargeable on the gross amount received by the proprietor. The definition of the expression \"payment for admission\" in s. 2(b) of the Act, is an inclusive definition; it includes by clause (iv) payment for any c purpose whatsoever \"connected with an entertainment which a person is required to make as a condition of attending or continuing to attend the entertainment''. In our judgment entertainment duty is a payment which the proprietor is required to make as a condition for enabling visitors to attend or continue to attend the entertainment. Without such a payment the visitor cannot be admitted to the entertainment under s. 4 (I) of the Act. That being D so the expression \"payment for admission\" includes entertainment duty.\n\nWe agree with the High Court that the appellant was liable to pay duty computed in the manner provided bys. 3(l)(b)(ii) on the total amount received by the proprietor. But the method E of levy of entertainment duty from the proprietors involves some hardship. It is implicit in the Act that the proprietor is entitled \"to pass on the liability\" for payment of entertainment duty to the visitors. But the visitor only pays the amount represented by the stamp affixed on the ticket. A proprietor paying entertainment duty on the total amount, received by him from the visitor F will never be able to collect Uie full entertainment duty from the visitor.\n\nA part of the duty payable by him will have to come out of the amount received by him as net charge for the ticket. But we are dealing with a taxing statute and questions of hardship cannot justify us in departing from the provisions of ss. 3 and 4 of the Act. The Legislature must be deemed to have contemplated that only a part of the entertainment duty levied by the Gov- G emment may be collected in the manner provided from the visitors to the theatre and the balance shall be paid by the proprietors. It may be observed that between March, 18, 1960 and January 11, 1962 the appellant collected and paid the duty which was actually received from the visitors to the theatre by stamps affixed on the tickets issued to them according to the notification H issued by the Collector. It was thereafter when a fresh memorandum dated January 11, 1962 was issued requiring the proprietors of the theatres to pay tax on the aggregate amount of the net\n\n\" 1\n\nLIBERTY TALKIES V. GUJARAT (S/zalz, C.J.) 4.05\n\nvalue of the ticket and the entertainment duty that the proprietor was called upon to pay the difference.\n\nTill January 11, 1962 the proprietor acted pursuant to the memorandum dated March 18, 1960 issued by the Collector and collected the duty and paid it over. The Government of Gujarat later advised that the method of collection notified by the Collector was not the correct method.\n\nBut the Act contains no provision for reopening assessments al\n\nready made.\n\nWhen pursuant to return by the proprietor, payments were made and accepted under s. 4(2) (b), the tax may be deemed to .be assessed and paid, and the State cannot thereafter reopen the concluded assessments and seek to levy tax or duty which has escaped.\n\nThe appeals fail except as to the amount claimed to be due for the period between March 18, 1960 and January 11, 1962.\n\nThere will be no order as to costs.\n\nV.P.S.\n\nAppeals dismissed.", "total_entities": 58, "entities": [{"text": "398\n\nLIBERTY TALKIES & ORS", "label": "PETITIONER", "start_char": 1, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "LIBERTY TALKIES & ORS", "offset_not_found": false}}, {"text": "STATE OF GUJARAT", "label": "RESPONDENT", "start_char": 30, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT", "offset_not_found": false}}, {"text": "January 21, 1971", "label": "DATE", "start_char": 47, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "STATE OF GUJARAT January 21, 1971\n\n{J.C. SHAH, CJ.,"}}, {"text": "C. SHAH, CJ.", "label": "JUDGE", "start_char": 68, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 82, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Bombay Entertainments Duty Act", "label": "STATUTE", "start_char": 118, "end_char": 148, "source": "regex", "metadata": {}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 162, "end_char": 173, "source": "regex", "metadata": {"linked_statute_text": "Bombay Entertainments Duty Act", "statute": "Bombay Entertainments Duty Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 333, "end_char": 337, "source": "regex", "metadata": {"linked_statute_text": "Bombay Entertainments Duty Act", "statute": "Bombay Entertainments Duty Act"}}, {"text": "Bombay Entertainment Duty Act, 1923", "label": "STATUTE", "start_char": 345, "end_char": 380, "source": "regex", "metadata": {}}, {"text": "s.\n\n4", "label": "PROVISION", "start_char": 914, "end_char": 919, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Entertainment Duty Act, 1923", "statute": "the Bombay Entertainment Duty Act, 1923"}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 927, "end_char": 934, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Entertainment Duty Act, 1923", "statute": "the Bombay Entertainment Duty Act, 1923"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1095, "end_char": 1099, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Entertainment Duty Act, 1923", "statute": "the Bombay Entertainment Duty Act, 1923"}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 2260, "end_char": 2271, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 2788, "end_char": 2799, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 3384, "end_char": 3402, "source": "ner", "metadata": {"in_sentence": "8 Appeals by special leave from the judgment and order dated November, 8, 9, 1968 of the Gujarat High Court in Special Civil Applications Nos."}}, {"text": "S. T. Desai", "label": "OTHER_PERSON", "start_char": 3522, "end_char": 3533, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, I. N. Shroff and M. N. Shroff."}}, {"text": "I. N. Shroff", "label": "OTHER_PERSON", "start_char": 3535, "end_char": 3547, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, I. N. Shroff and M. N. Shroff.", "canonical_name": "I. N. Shroff"}}, {"text": "M. N. Shroff", "label": "OTHER_PERSON", "start_char": 3552, "end_char": 3564, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, I. N. Shroff and M. N. Shroff.", "canonical_name": "I. N. Shroff"}}, {"text": "C. K. Daphtary", "label": "OTHER_PERSON", "start_char": 3608, "end_char": 3622, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, K. L. Hathi, B. D. Sharma for S. P. Nayar, for the respondents (in all the appeals l.\n\nThe Judgment of the Court was delivered by\n\nShah, C. J.-Under the Bombay Entertainments Duty Act 1 of 1923 entertainment duty is chargeable on the total collections from the visitors to a theatre."}}, {"text": "K. L. Hathi", "label": "OTHER_PERSON", "start_char": 3624, "end_char": 3635, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, K. L. Hathi, B. D. Sharma for S. P. Nayar, for the respondents (in all the appeals l.\n\nThe Judgment of the Court was delivered by\n\nShah, C. J.-Under the Bombay Entertainments Duty Act 1 of 1923 entertainment duty is chargeable on the total collections from the visitors to a theatre."}}, {"text": "B. D. Sharma", "label": "OTHER_PERSON", "start_char": 3637, "end_char": 3649, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, K. L. Hathi, B. D. Sharma for S. P. Nayar, for the respondents (in all the appeals l.\n\nThe Judgment of the Court was delivered by\n\nShah, C. J.-Under the Bombay Entertainments Duty Act 1 of 1923 entertainment duty is chargeable on the total collections from the visitors to a theatre."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3755, "end_char": 3759, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, K. L. Hathi, B. D. Sharma for S. P. Nayar, for the respondents (in all the appeals l.\n\nThe Judgment of the Court was delivered by\n\nShah, C. J.-Under the Bombay Entertainments Duty Act 1 of 1923 entertainment duty is chargeable on the total collections from the visitors to a theatre."}}, {"text": "Junagadh", "label": "GPE", "start_char": 4314, "end_char": 4322, "source": "ner", "metadata": {"in_sentence": "Entertainmeni'11ufy so computed was paid till January 1962 by the appellants who own a theatre at Junagadh."}}, {"text": "January 11, 1962", "label": "DATE", "start_char": 4328, "end_char": 4344, "source": "ner", "metadata": {"in_sentence": "On January 11, 1962 the Government of Gujarat issued a memorandum thal \"the duty (entertainment duty) is a percentage ot the payment for admission i.e. the amount which a person pays for bei, ng admitted to witness the entertainment, inclusive of the various items mentioned in clause (b) of section 2 of the Bombay Entertainment Dut, r Act, 1.923."}}, {"text": "Government of Gujarat", "label": "ORG", "start_char": 4349, "end_char": 4370, "source": "ner", "metadata": {"in_sentence": "On January 11, 1962 the Government of Gujarat issued a memorandum thal \"the duty (entertainment duty) is a percentage ot the payment for admission i.e. the amount which a person pays for bei, ng admitted to witness the entertainment, inclusive of the various items mentioned in clause (b) of section 2 of the Bombay Entertainment Dut, r Act, 1.923."}}, {"text": "section 2", "label": "PROVISION", "start_char": 4617, "end_char": 4626, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court (jf Gujarat", "label": "COURT", "start_char": 5148, "end_char": 5170, "source": "ner", "metadata": {"in_sentence": "By a petition moved in the High Court (jf Gujarat the appellantschallenged the validity of the rnemorandum dated January 11, 1962 and the notice of demand issued pursuant thereto and urged that the primary_ liability for payment of entertainment duty is by the Act impo5ed upon the visitor to the theatre, and that the proprietor of the theatre i~ merely an agent of the Govern~\n\nment for collecting the duty : and that the proprietor has under\n\nthe Act to pay the duty which he collects from the visitors; and A that he cannot be required to pay an amount which he does not collect from the visitors."}}, {"text": "March 18, 1960", "label": "DATE", "start_char": 6259, "end_char": 6273, "source": "ner", "metadata": {"in_sentence": "Under the memorandum issued on March 18, 1960 the aggregate of the duty received by the appellants was paid over C to the Government and the net value of."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7154, "end_char": 7163, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3A", "label": "PROVISION", "start_char": 8373, "end_char": 8383, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8542, "end_char": 8546, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 8788, "end_char": 8797, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 9450, "end_char": 9459, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 10179, "end_char": 10188, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(a)", "label": "PROVISION", "start_char": 10396, "end_char": 10403, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 10986, "end_char": 10995, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 11160, "end_char": 11169, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 11283, "end_char": 11290, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 11515, "end_char": 11519, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11702, "end_char": 11706, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12266, "end_char": 12270, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 12633, "end_char": 12637, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12820, "end_char": 12824, "source": "regex", "metadata": {"statute": null}}, {"text": "rules framed under the Bombay Entertainments Duty Act, 1923", "label": "STATUTE", "start_char": 13278, "end_char": 13337, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 14644, "end_char": 14653, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 14659, "end_char": 14668, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 15079, "end_char": 15083, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 15191, "end_char": 15195, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(2)", "label": "PROVISION", "start_char": 15534, "end_char": 15546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 15766, "end_char": 15770, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 16023, "end_char": 16030, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 16534, "end_char": 16538, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 17530, "end_char": 17541, "source": "regex", "metadata": {"statute": null}}, {"text": "March, 18, 1960", "label": "DATE", "start_char": 17832, "end_char": 17847, "source": "ner", "metadata": {"in_sentence": "It may be observed that between March, 18, 1960 and January 11, 1962 the appellant collected and paid the duty which was actually received from the visitors to the theatre by stamps affixed on the tickets issued to them according to the notification H issued by the Collector."}}, {"text": "LIBERTY TALKIES V. GUJARAT", "label": "JUDGE", "start_char": 18247, "end_char": 18273, "source": "ner", "metadata": {"in_sentence": "It was thereafter when a fresh memorandum dated January 11, 1962 was issued requiring the proprietors of the theatres to pay tax on the aggregate amount of the net\n\n\" 1\n\nLIBERTY TALKIES V. GUJARAT (S/zalz, C.J.) 4.05\n\nvalue of the ticket and the entertainment duty that the proprietor was called upon to pay the difference."}}, {"text": "18, 1960", "label": "DATE", "start_char": 18484, "end_char": 18492, "source": "ner", "metadata": {"in_sentence": "Till January 11, 1962 the proprietor acted pursuant to the memorandum dated March 18, 1960 issued by the Collector and collected the duty and paid it over."}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 18841, "end_char": 18848, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_406_409_EN", "year": 1971, "text": "C.I.T., U.P.\n\nBANKEY LAL VAIDYA (DEAD) BY L.RS~\n\nJanuary 21, 1971\n\n[J. C. SHAH, C.J., K. S. HEGDE AND A. N. GROVER, JJ.] Income-tax Act, 1922, s. 128(1)-Partition of asset• of a firm 011 dis-· K solution-Assets of firms valuett--Outgoing partner paid value of his share-Whet.her transaction amounts to sale resulting iii capital gain.\n\nThe respondent who was the karta of his Hindu undivided family entered into partnership with one D to carry on the business of manufacturing and selling pharmaceutical products etc.\n\nOn July 27, 1946 the partnership was dissolved. The assets of the firm which included goodwill, machinery, furniture etc. were valued on tile date of dissolution at Rs. 2,50,000 and the respondent was paid the sum of Rs. 1,25,000 in lieu of his share and the business together with the goodwill was taken over by D. The question in income-tax proceedings was whether_ the transaction was one of sale liable to capital gains tax under s. 12B(l) of the Income-tax Act. 1922.\n\nThe assessing and appellate authorities held against the respondent. The High Court in reference, however, held in hi< favour. The revenue appealed.\n\nHELD : There was no clause in the partnership agreement providing for the method of dissolution of the firm or .for winding up ol. its affairs.\n\nIn the course of dissolution the assets of the firm may be valued and the assets divided between the partners according to their respective shares by allotting the individual assets or paying money value equivalent thereof.\n\nThis is a recognised method of making up the accounts elf the dissolved firm.\n\nIn that case the receipt of money by a partner is nothing but a receipt of bis share in the distributed assets of the firm.\n\nThe respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange on transfer his share in the assets of the firm.\n\nPayment of the amount agreed to be paid to the respondent under the arrWJgernent elf his share was therefore not consequence of any sale, exchange .or transfer of assets. [408 C-EJ James , foderson v. Commissioner of Income-tax, Bombay City,. 39- I.T.R. 1!3 and Commissioner of lncome:tax, Madhya Pradesh and Nagpur & \"1handara v. Dewas Cine Corppration, 68 I.T.R. 240, distinguished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1223 of 1967.\n\nAppeal from the judgment and decree dated Mardi.• 5i 1964 of the Allahabad High Court in l11eome-tax Reference No:. 7;1; of\n\n1959.\n\nG S. K. Mitra, B. ]J. Ahuja, R. N. Sachtht!y and B. D. Sharma:, for the appellaµt.\n\nRam Lal and A. T. M. Sampat, for the respondent.\n\nThe Judgment of the Court was delivered by\n\n. . Shah, C.~. The respondent who is the Karta of a Hindu Un- H . d1.v1de~ Famliy eD:tered on behalf of the family into a partnership. with one Devi Sharan Garg to carry oi:i the business ot\n\nA manufacturing and selling pharmaceutical products and literaturerelating thereto.\n\nOn July 27, 1946 the partnership was dissolved . The assets of the firm which included goodwill, machinery, fUl)lliture, medicines, library and copyright in respect of certain publications were valued at the date of dissolution at Rs. 2,50,000/-.\n\nThe respondent was paid a sum of B Rs. 1,25,000/- in lieu of his share and the business together with the goodwill was taken over by Devi Sharan Garg.\n\nIn proceedings for assessment of the respondent foJ the year 194 7-48 the Income-tax Officer sought to bring an amount of Rs. 70,000/- to tax as capital gains. The contention raised by c the respondent that no part of the amount of Rs. 1,25,000/-\n\nreceived by the respondent represented capital gains was rejected by the Income-tax Officer, Appellate Assistant Commissioner and the Income-tax Appellate Tribunal.\n\nThe Tribunal hiwever reduced the amounts capital gains brought to tax to Rs. 65,000/-.\n\nTh~ Tribunal referred the following question to the High Court\n\n0 of Allahabad under s. 66 (1) of the Indian Income-tax Act,.\n\n1922:\n\n\"Whether on a true interpretation of sub-section ( 1) of section 12-B of the Income-tax Act. the sum of Rs. 65,000/- has been correctly taxed as capital gains\".\n\nE The High Court answered the question in the negative. Against that order, with certificate granted by the High Court, this appeal has been preferred.\n\nSection 12-B ( 1), insofar as it is relevant provides :\n\n\"The tax shall be payable by an assessee under the\n\nhe.a~ \"Capital gains\" in respect of any profits or gaLns ansmg f1om the sale, exchange or transfer of a capital asset effected after the 31st day of March 1946 .\n\nnd such profits and gains shall be deemed to be mcome of the previous year in which the sale, exchange or transfer took place : Provided\n\nProvided further\n\nProvided further that any transfer of capital assets . . . . . . . . on the dissolution of a firm or other association of persons. . . . . . . shall not for the purposes of this section, be treated as sale ex- <\"1ange or transfer of the capital assets; '\n\nSUPREME COURT REPORTS\n\n[1971] 3 S.C.R.\n\nLiability to pay capital gains arises under s. 12-B ( 1) if there be A a sale, exchange or transfer of capital assi; ts, There was no sale or exchange of his share in the capital assets of the firm by the respondent to Shri Devi Shara.n Garg.\n\nN.or did he transfer his share in the capital assets.\n\nThe assets of the firm included the goodwill, machijllery, furniture, medicines library and the copyright in respect of certain publications.\n\nA large B majority of the assets were incapable of physical division, and the partners agreed that the assets be taken over by Devi Shara.n Garg at a valuation, and the respondent be paid his share' of the value in money. Such an arrangement, in our judgment, amounted to a distribution.of the ; issets of the firm on dissolutiqn, There is no clause in the partnership agreement providing for the methqd c of d!i; solution of the firm or for winding up of its affairs.\n\nIn the course of dissolution the assets of a firm may be valued and the assets divided between the partners according to their respective _§_hares by allotting the individual assets or paying the money value equivalent thereof. This is a recognized method of making up the accounts of a dissolved firm. In that case the receipt_ of D .money by a partner is nothing but a receipt of his share in the distributed assets of the firm. The respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange or tr3JJ1Sfer his share in the assets of the firm. Payment of the amount agreed to be paid to the respondent under the arrangement of his share was therefore not in consequence 'E <>f any sale exchange or . transfer of assets.\n\nTo persuade us to take a different view, reliance was placed on behalf of the Revenue upon James Anderson v. C:ommissioner\n\nof Income-tax B•'mbay C:ity(11). In that case the assessee held a power of attorney from the executor of a deceased person, in the course of the administration of hise estate. He sold certain F shares and securities belanging to the deceased for distribution among the legatees. The excess realized by sale was treated by the Income-tax Department as Capital gains. The contention of the assessee that since the sale of the shares and securities fell within the purview of the third proviso to s. 12-B(i)-it could not be treated as a sale of capital assets within the meaning of s. 12-B(l) was rejected by this Court. This Court observed that the object of the third proviso to s. 12-B(l ), in providing that \"any distribiitjon of capital assets under a will\" shall not be treated as safe, exchange or transfer of capital assets for the purpose of s. 12-B was that as Jong as there was distribution of capital assets in specie and no sale, there was no transfer for the purposes of that sectioo. but if there was a sale of the capital assets and profits or gains arose therefrom, the liability to tax\n\n(1) 39 I.TR. 123.\n\n- '\n\nA arose, whether the sale was by the administrator or executor or a legatee, and that the expression \"distribution of capital assets\" in the third proviso to s. 12-B(l) meant distribution in specie and not distribution of sale proceeds.\n\nThat case has no application.\n\nThere was no distribution of capital assets between the legatees : the assessee had pursuant to the authority reserved to B him from the executor of the deceased person sold the shares and securities, and from the sale of shares and securities capital gains resulted.\n\nIn the case in hand there is no sale and payment of price, but payment of the value of share under ain arrangement for dissolution of the partnership and distribution the assets. The rights of the parties were adjusted by handing over to one of the C partners the entire assets and to the other partner the moneyvalue of his share.\n\nSuch a transaction is 111ot in our judgment a sale, exchange or transfer of assets of the firm.\n\nIn Commissioner of Income-tax, Madhya Pradesh, Nagpur & Bhandara v. Dewas Cine Corporaiion(') in dealing with the meaning of the expressions \"Sale\" and \"sold\" as us~ n s. (l 0) D (2)(vii) of the Income-tax Act, 1922, this Court observed that the expression \"sale\" in its ordinary meaning is a transfer of property for a price, and adjustment of the rights of the partners in a dissolved firm by allotment of its assets is [!lot a transfer for a price. In that case the assets were distributed among the partners and it was contended that the assets must in law be deemed E to be sold by the partners to the individual partners in consideration of their respective shares, and the dilferf!llce between the written\"down value and the price realised should be included in the total income of the partnership under the second proviso to s. 10(2) (vii).\n\nThis Court observed that a partner may, it is true, in an action for dissolution i1nsist that the assets of the partner- F ship be realised by sale of its assets, but property allotted to a family in 'satisfaction of his claim to his share, cannot be deemed in law to be sold to him.\n\nWe therefore agree with the High Court that the question referred must be answered in the negative.\n\nThe appeal fails and is dismissed with costs.\n\nG.C.\n\nAppeal dismissed.\n\n(2) 68 I.T.R. 240", "total_entities": 34, "entities": [{"text": "C.I.T., U.P", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "C.I.T., U.P", "offset_not_found": true}}, {"text": "BANKEY LAL VAIDYA (DEAD) BY L.RS", "label": "RESPONDENT", "start_char": 14, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "BANKEY LAL VAIDYA (DEAD) BY L.RS~", "offset_not_found": false}}, {"text": "January 21, 1971", "label": "DATE", "start_char": 49, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "C.I.T., U.P.\n\nBANKEY LAL VAIDYA (DEAD) BY L.RS~\n\nJanuary 21, 1971\n\n[J. C. SHAH, C.J., K. S. HEGDE AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH, C.J.", "label": "JUDGE", "start_char": 71, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 86, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 102, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 121, "end_char": 141, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 128(1)", "label": "PROVISION", "start_char": 143, "end_char": 152, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "July 27, 1946", "label": "DATE", "start_char": 522, "end_char": 535, "source": "ner", "metadata": {"in_sentence": "On July 27, 1946 the partnership was dissolved."}}, {"text": "s. 12B(l)", "label": "PROVISION", "start_char": 953, "end_char": 962, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 970, "end_char": 984, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2268, "end_char": 2296, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "G S. K. Mitra", "label": "JUDGE", "start_char": 2463, "end_char": 2476, "source": "ner", "metadata": {"in_sentence": "G S. K. Mitra, B. ]J. Ahuja, R. N. Sachtht!y and B. D. Sharma:, for the appellaµt."}}, {"text": "R. N. Sachtht!y", "label": "LAWYER", "start_char": 2492, "end_char": 2507, "source": "ner", "metadata": {"in_sentence": "G S. K. Mitra, B. ]J. Ahuja, R. N. Sachtht!y and B. D. Sharma:, for the appellaµt."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 2512, "end_char": 2524, "source": "ner", "metadata": {"in_sentence": "G S. K. Mitra, B. ]J. Ahuja, R. N. Sachtht!y and B. D. Sharma:, for the appellaµt."}}, {"text": "Ram Lal", "label": "LAWYER", "start_char": 2547, "end_char": 2554, "source": "ner", "metadata": {"in_sentence": "Ram Lal and A. T. M. Sampat, for the respondent."}}, {"text": "A. T. M. Sampat", "label": "LAWYER", "start_char": 2559, "end_char": 2574, "source": "ner", "metadata": {"in_sentence": "Ram Lal and A. T. M. Sampat, for the respondent."}}, {"text": "Devi Sharan Garg", "label": "OTHER_PERSON", "start_char": 2785, "end_char": 2801, "source": "ner", "metadata": {"in_sentence": "with one Devi Sharan Garg to carry oi:i the business ot\n\nA manufacturing and selling pharmaceutical products and literaturerelating thereto.", "canonical_name": "Devi Shara.n Garg"}}, {"text": "27, 1946", "label": "DATE", "start_char": 2926, "end_char": 2934, "source": "ner", "metadata": {"in_sentence": "On July 27, 1946 the partnership was dissolved ."}}, {"text": "High Court\n\n0 of Allahabad", "label": "COURT", "start_char": 3872, "end_char": 3898, "source": "ner", "metadata": {"in_sentence": "Th~ Tribunal referred the following question to the High Court\n\n0 of Allahabad under s. 66 (1) of the Indian Income-tax Act,."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 3905, "end_char": 3910, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3929, "end_char": 3943, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 12", "label": "PROVISION", "start_char": 4011, "end_char": 4021, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 4031, "end_char": 4045, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 12", "label": "PROVISION", "start_char": 4269, "end_char": 4279, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 5037, "end_char": 5042, "source": "regex", "metadata": {"statute": null}}, {"text": "Devi Shara.n Garg", "label": "OTHER_PERSON", "start_char": 5217, "end_char": 5234, "source": "ner", "metadata": {"in_sentence": "shall not for the purposes of this section, be treated as sale ex- <\"1ange or transfer of the capital assets; '\n\nSUPREME COURT REPORTS\n\n[1971] 3 S.C.R.\n\nLiability to pay capital gains arises under s. 12-B ( 1) if there be A a sale, exchange or transfer of capital assi; ts, There was no sale or exchange of his share in the capital assets of the firm by the respondent to Shri Devi Shara.n Garg.", "canonical_name": "Devi Shara.n Garg"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 7297, "end_char": 7302, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 7382, "end_char": 7387, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 7481, "end_char": 7486, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 7651, "end_char": 7656, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 8087, "end_char": 8092, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 9092, "end_char": 9112, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 9730, "end_char": 9738, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}]} {"document_id": "1971_3_410_414_EN", "year": 1971, "text": "COMMISSIONER OF INCOME TAX, CALCUTTA A\n\nBURJ., OP DEALERS LTD.\n\nJanuary 21, 1971\n\n[J. C. SHAH, C.l, K. S. HEGDE AND A. N. GROVER, JI.] B\n\nIncome-tax Act, 1922, s. 34(1) (a)-Scope of-As, essee disclosing primary facts necessary for assessment-Duty of Income-tax Officer to draw necessary inferences.\n\nFor the assessment year 1949-50 the assessee submitted a profit and Joss account disclosing a certain amount as profit in a joint venture and claimed that half df this ptofit was paid to R under a partnership agreement. The Income-tax Officer accepted the return and included only half of the profit in the joint venture in computing the assessee's total income.\n\nIn the next assessment year the assessee filed a return accompanied by a profit 'and loss account and claimed that it had transferred half the profit to R as his share.\n\nBut the Income-tax Officer on examination of the transactions brought• the entire amount of profit in the joint venture to\n\ntax, holding that the partnership agreement was got up a devise to re- D> duce the profits received from the joint venture. This order was confumcd by the Tribunal and the High Court.\n\nMeanwhile, the Income-tax Officer issued a notice under s. 34 of the Income-tax Act, 19'22 to reopen the assessment for the assessment year 1949-50 .itnd to assess the amount allowed in that assessment as paid to R.\n\nThe Income-tax Officer reassessed the income under s. 34(1)(a) and added that amount to the income returned by the assessee in the assessment year 1949-50. The Appellate Assistant Commissioner confirmed that order but the Tilbunal\n\nreversed.\n\nThe High Court, on re'ference, answered in favour of the assessee.\n\nDismissing the appeal by the Revenue,\n\nHELD : Under s. 34( 1) (a), if the assessee has disclosed primary facts relevant to the assessment, he is under no obligation to instruct the Income-tax Officer about the inference which the Income-tax Officer may raise 'from these facts. The terms of the Explanation to S. 34(1) also do not impose a more onerous obligation.\n\nMere productign. of the books of account or other evidence from which material facts could with due dili-· gence, have oeen discovered does not. necessarily amoullt to disclosure within the meaning of s. 34(1);.but where on the evidence and_the materials produced the Incme-taii Officer could have reached a conclusion other than the one which he has reached, a proceeding under s. 34(1) (a) will not lie merely on the groufi'd that the Iacolhe-tax Officer has raised an\n\ninfer~ce 'Which he may later regard as erroneous.\n\nThe assessee had 'disclosed his books of account and evidence from which material facts could be discovered.\n\nIt was 'for the Income-tax Officer to raise the necessary inference and if he did not do so the income which has escaped assessment cannot be brought to tax under s. 34(1)(a).\n\n[413 CJ .\n\nCalcutta Discount Co. Ltd. v. Income-tax Office•·, Companies District I, Calcutta & Anr. 41 I.T.R. 191, 200, referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 649 of 1967.\n\nH -\n\nAppeal by special leave from the order dated May 4, 1966 o~ the Calcutta High Court in Income-tax Reference No. 114 ot 1965.\n\nJagadish Swarup, Solicitor-Genera/, Ram Panjwani, R. N.\n\nSachthey and B. D. Sharma, for the appellant.\n\nC. K. Daphtary, B. P. Maheshwari aind K. R. j(.haitan, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, C.J. Burlop Dealers Ltd.-hereinafter referred to as C 'the assessee'-is a limited company.\n\nFor the assessment year 1949-50 the assessee submitted a profit and loss account disclosing in the relevant year of account Rs. 1,75,875/- as profit in a joint venture from H.\n\nMnory Ltd. and claimed that Rs. 87,937/- being half the profit earned from H. Manory Ltd. was\n\njJaid to Ratiram Tansukhrai under a partnership agreement. The D assessee stated that on Ju11e 5, 1948, it had e.ntered into a11 agreement with H. Manory .Ltd. to do business in plywood chests aind in considerat.ion oi financing the business the assessee was to receive 50% df the profits of the business.\n\nThe assessee claimed that it had entered into an agreement on October 7. 1948, with Ratir\"1fl Tansu.khrai for flnanding the transactions E of H. Manary Ltd. in the joint veinture, and had agreed to pay to Ratiram Tansukhrai 50% of the profit earned by it from the business with H. Manary Ltd.\n\nThe Incometax Officer accepted the return filed by the assessee and included in computing the total income for the assessment year 1949-50 Rs. 87 ,937 /- qnly as the profit earned on the F joint venture with H. Manory Ltd. In the assessment year 1950- 51 the assessee field a return also accompal!ied by a profit and loss account disclosing a total profit of Rs. 1,62,155/- in the relevant account ear received from H.\n\nMainory Ltd., a11d claimed that it had transferred Rs. 81,077 /- to the accolljllt of Ratiram Tansukhrai as his share.\n\nThe Income-tax G Officer on examination of the transactions brought the entire amount of Rs. 1,62,155/- to tax holding that the alleged agreement of Octoer 1948 between the assessee and Ratiram Tansukhrai had merely been \"got up as a device to reduce the profits, received from H. Manory Ltd.\".\n\nThis order was cQllfirmed by the Appellate Assistant Commissioner and by the Income-tax H Appellate Tribunal.\n\nThe 'Tribunal then stated a case under s. 66 (1) cf the Income-tax Act to t)le High Court of Calcutta.\n\nThe High Court agreed with the view of the Tribunal and a.nswered the question against the assessee,\n\n412 SUPJ!:EME COURT REPOR'fS\n\n[1971] 3 S.C.R.\n\nIn the meanwhile on May 13, 1955, the Income-tax Officer A issued a notice under s. 34 to the assessee for the assessment year 1949-50 to re-open the assessment and to assess the amooot\n\nof Rs. 8 7 ,93 7 / - allowed in the assessment of income-tax as paid to Ratiram Tansukhrai. The assessee filed a return which did not include the amount paid to Ratiram Tansukhrai.\n\nThe Income-tax Officer re-assessed the ncome under s. 34 ( 1) (a) and added Rs. 87,937 /- to the income returned by the assessee in the assessment year 1949-50. The Appellate Assistant Commissioner held that the Income-tax Officer was entitled to take action under s. 34(1) (a) of the Income-tax Act 1922 after the amendmeint in 1948, and to re-open the assessment if income had been under-assessed owing to the failure of the assessee to disclose fully and truly all material facts necessary for the assessment.\n\nHe confirmed the order observing that the assessee had misled the Income-tax Officer ipto believin!:i that there was a genui1ne arrangement with Ratiram Tansukhrai and had stated in the profit anu loss account that the amount paid to Ratiram Tansukhrai was the share of the latter in the partnership, whereas no much share was payable to Ratiram Tansukhrai.\n\nIn appeal against the order of the Appellate Assistant Commissioner the Income-tax Appellate Tribunal held that the assessee had produced all the relevant accounts and documents necessary for completing the assessment, and the assessee was under no obligation to inform the Income-tax .Officer about the true nature of the transactions.\n\nThe tribunal on that view revers- ed the order of the Appellate Assistant Commisisoner and directed that the amount of Rs. 87,937 /- be excluded from the total income of the assessee for the year 1949-50.\n\nAn application under s. 66 (1) of the InC:ian Income-tax Act F for stating a case to the High Court was rejected by the Tribunal.\n\nA petition to the High Court of Calcuttta under s. 66(2) for directing the Tribunal to submit a statement of the case was also rejected.\n\nThe Commissioner has appealed to this Court.\n\nSection 34(1) of the Indian Income-tax Act, 1922, as it G stood in the assessment year 1949-50 provided : \"If- ( a) the Income-tax Officer has reason to elieve that by reason of the omissin or failure on the part of an assessee to make a return of income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains\n\nchargeable to income-tax have escaped assessment for that year, or have been under-assessed.\n\n(b) notwithstainding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to Income-tax have escaped assessment for any year, or have been under-assessed. he may in cases falling under clause (a) at any time within eight years and in cases falling under clause\n\n(b) at any time within four years of the end of that year, serve on the assessee, . . . . a notice containing all or any of the requirements which may be included in a notice under sub-secti0\\11(2) of section 22, and may proceed to assess or re-assess such income, profits or gains \"\n\nThe Income-tax Officer had in consequence of information in his possessioin that the agreement with Ratiram Tansukhrai was a sham transaction reason to believe, that income chargeable to E tax had escaped assessment.\n\nSuch a case would appropriately fall under s. 34 (1 )(b). But the period pres¢ribed for serving a notice uinder s. 34 (1 )(b) had elapsed. Under s. 34 (1 )(a) the Income-tax Officer had authority to serve a notice when he had reason to believe that by reason of omission or failure oin the part of the assessee to disclose fully and truly al! material facts\n\nneessary for his assessment for the year, ir.come chargeable to F tax had escaped assessment.\n\nAs observed by this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calc:utta and another(').\n\n\"The words used are \"omission or failure to disclose fully and truly all material facts necessary for his assessment for that year\". It postulates a duty on every assessee to disclose fully and truly all material facts necessary for his assessment.\n\nWhat facts are material and necessary for assessment will differ from case to case.\n\nIn every assessment proceeding, he assessing authority will, for the purpose of computmg or determining the proper tax d.ue from ssessee, require to know all the facts which help hi!11 1n coming to the correct conclusion. From the pnmary facts\n\n(!) 41 I.T.R.191. 200.\n\n414 SUPREME COURT REPORTs\n\n[1971 ]3 S.C.R.\n\nin his possession whether on disclosure by the assessee, or discovered by him on the basis of the facts disclose, or otherwise, the assessilllg authority has to draw inferences as regards certain other facts; and ultimately, fr9m the primary facts and the further facts inferred from them, the authority has to draw the proj)er legal inferences, and ascertain. on a correct mterpetation of th<: taxing enactmeint, the proper tax Jeviable\".\n\nc We are of the view that under s. 34(1)(a) if the assessee has dis- .closed primary facts relevant to the assessment, he is under no obligation to instruct the Income-tax Officer about the inference which the Income-tax Officer may raise from those facts.\n\nThe terms of the Explanation to s. 34(1) also do not impose a more onerous obligation.\n\nMere production of the books of ac'(_ount or oth'er evidence from which material facts could with due diligence have been discovered does not necessarily amount to disclosure within the' meaning of s. 34 (1), but where on the evicteince and the materials p_roduced the Income-tax Officer could D have reached a conclusion other than one which he has reached, a proceeding under s. 34(1) (a) will not lie merely on the ground that the klcome-tax Officer has raised an inference which he may later regard as erroneous.\n\nThe. assessee had disclosed his books of account and evi- E dence from which material facts could be discovered : it was under no obligation to inform the Income-tax Officer about the possible inferences which may be raised against him. It was for the Income-tax Officer to raise such ain inference and if he did not do so the income which has escaped assessment ;:annot be brought to lay under section 34(1)(a).\n\nF The appeal fails and is dismissed with . costs.\n\nK.B.N.\n\nAppeal dismissed.\n\n~,}.", "total_entities": 55, "entities": [{"text": "COMMISSIONER OF INCOME TAX, CALCUTTA", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, CALCUTTA", "offset_not_found": false}}, {"text": "January 21, 1971", "label": "DATE", "start_char": 64, "end_char": 80, "source": "ner", "metadata": {"in_sentence": "January 21, 1971\n\n[J. C. SHAH, C.l, K. S. HEGDE AND A. N. GROVER, JI.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 86, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 100, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 116, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 138, "end_char": 158, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 160, "end_char": 168, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 1199, "end_char": 1204, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 1212, "end_char": 1226, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 1411, "end_char": 1422, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34( 1)", "label": "PROVISION", "start_char": 1723, "end_char": 1732, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 34(1)", "label": "PROVISION", "start_char": 1981, "end_char": 1989, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 2238, "end_char": 2246, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 2416, "end_char": 2424, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 2833, "end_char": 2844, "source": "regex", "metadata": {"statute": null}}, {"text": "Jagadish Swarup", "label": "LAWYER", "start_char": 3173, "end_char": 3188, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-Genera/, Ram Panjwani, R. N.\n\nSachthey and B. D. Sharma, for the appellant."}}, {"text": "Ram Panjwani", "label": "LAWYER", "start_char": 3209, "end_char": 3221, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-Genera/, Ram Panjwani, R. N.\n\nSachthey and B. D. Sharma, for the appellant."}}, {"text": "R. N.\n\nSachthey", "label": "LAWYER", "start_char": 3223, "end_char": 3238, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-Genera/, Ram Panjwani, R. N.\n\nSachthey and B. D. Sharma, for the appellant."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3243, "end_char": 3255, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-Genera/, Ram Panjwani, R. N.\n\nSachthey and B. D. Sharma, for the appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3277, "end_char": 3291, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. P. Maheshwari aind K. R. j(.haitan, for the respondent."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 3293, "end_char": 3309, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. P. Maheshwari aind K. R. j(.haitan, for the respondent."}}, {"text": "Shah", "label": "PETITIONER", "start_char": 3397, "end_char": 3401, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, C.J. Burlop Dealers Ltd.-hereinafter referred to as C 'the assessee'-is a limited company."}}, {"text": "Burlop Dealers Ltd", "label": "RESPONDENT", "start_char": 3408, "end_char": 3426, "source": "metadata", "metadata": {"canonical_name": "BURLOP DEALERS LTD", "offset_not_found": true}}, {"text": "H.\n\nMnory Ltd.", "label": "ORG", "start_char": 3668, "end_char": 3682, "source": "ner", "metadata": {"in_sentence": "1,75,875/- as profit in a joint venture from H.\n\nMnory Ltd. and claimed that Rs."}}, {"text": "H. Manory Ltd.", "label": "ORG", "start_char": 3747, "end_char": 3761, "source": "ner", "metadata": {"in_sentence": "87,937/- being half the profit earned from H. Manory Ltd. was\n\njJaid to Ratiram Tansukhrai under a partnership agreement."}}, {"text": "Ratiram Tansukhrai", "label": "OTHER_PERSON", "start_char": 3776, "end_char": 3794, "source": "ner", "metadata": {"in_sentence": "87,937/- being half the profit earned from H. Manory Ltd. was\n\njJaid to Ratiram Tansukhrai under a partnership agreement."}}, {"text": "Ju11e 5, 1948", "label": "DATE", "start_char": 3856, "end_char": 3869, "source": "ner", "metadata": {"in_sentence": "The D assessee stated that on Ju11e 5, 1948, it had e.ntered into a11 agreement with H. Manory .Ltd."}}, {"text": "H. Manory .Ltd", "label": "ORG", "start_char": 3911, "end_char": 3925, "source": "ner", "metadata": {"in_sentence": "The D assessee stated that on Ju11e 5, 1948, it had e.ntered into a11 agreement with H. Manory .Ltd."}}, {"text": "October 7. 1948", "label": "DATE", "start_char": 4136, "end_char": 4151, "source": "ner", "metadata": {"in_sentence": "The assessee claimed that it had entered into an agreement on October 7."}}, {"text": "Ratir\"1fl Tansu.khrai for flnanding the", "label": "LAWYER", "start_char": 4158, "end_char": 4197, "source": "ner", "metadata": {"in_sentence": "1948, with Ratir\"1fl Tansu.khrai for flnanding the transactions E of H. Manary Ltd. in the joint veinture, and had agreed to pay to Ratiram Tansukhrai 50% of the profit earned by it from the business with H. Manary Ltd.\n\nThe Incometax Officer accepted the return filed by the assessee and included in computing the total income for the assessment year 1949-50 Rs."}}, {"text": "H. Manary Ltd.", "label": "ORG", "start_char": 4216, "end_char": 4230, "source": "ner", "metadata": {"in_sentence": "1948, with Ratir\"1fl Tansu.khrai for flnanding the transactions E of H. Manary Ltd. in the joint veinture, and had agreed to pay to Ratiram Tansukhrai 50% of the profit earned by it from the business with H. Manary Ltd.\n\nThe Incometax Officer accepted the return filed by the assessee and included in computing the total income for the assessment year 1949-50 Rs."}}, {"text": "H.\n\nMainory Ltd.", "label": "ORG", "start_char": 4784, "end_char": 4800, "source": "ner", "metadata": {"in_sentence": "1,62,155/- in the relevant account ear received from H.\n\nMainory Ltd., a11d claimed that it had transferred Rs."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 5354, "end_char": 5359, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5371, "end_char": 5385, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 34", "label": "PROVISION", "start_char": 5649, "end_char": 5654, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 5988, "end_char": 5993, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 6202, "end_char": 6210, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act 1922", "label": "STATUTE", "start_char": 6222, "end_char": 6241, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-tax Appellate Tribunal", "label": "COURT", "start_char": 6882, "end_char": 6911, "source": "ner", "metadata": {"in_sentence": "In appeal against the order of the Appellate Assistant Commissioner the Income-tax Appellate Tribunal held that the assessee had produced all the relevant accounts and documents necessary for completing the assessment, and the assessee was under no obligation to inform the Income-tax .Officer about the true nature of the transactions."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 7375, "end_char": 7380, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7400, "end_char": 7414, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Calcuttta", "label": "COURT", "start_char": 7503, "end_char": 7526, "source": "ner", "metadata": {"in_sentence": "A petition to the High Court of Calcuttta under s. 66(2) for directing the Tribunal to submit a statement of the case was also rejected."}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 7533, "end_char": 7541, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34(1)", "label": "PROVISION", "start_char": 7669, "end_char": 7682, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7690, "end_char": 7717, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 22", "label": "PROVISION", "start_char": 7930, "end_char": 7940, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 22", "label": "PROVISION", "start_char": 8811, "end_char": 8821, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 9156, "end_char": 9161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 9225, "end_char": 9230, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 9258, "end_char": 9263, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 10816, "end_char": 10827, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 11074, "end_char": 11082, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 11328, "end_char": 11333, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 11508, "end_char": 11516, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34(1)(a)", "label": "PROVISION", "start_char": 12043, "end_char": 12059, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_424_427_EN", "year": 1971, "text": "TIIEPFULO NAKHRO ANGAMI\n\nV• SHRIMATI RAVALU alias RENO M. SHAIZA January 21, 1971\n\n[J. C. SHAH, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER\n\nAND A. N. RAY, JJ.] B\n\nAppeal-Respondent in Supreme Court seeking to rals• qu•stions decided in favour of appellant by High Court-Respondent is entitl•d to raise such question even though he has not filed substantive qpptal against High Court's iudgment-Princlp/e applies to appeals under Representation of the People Act, 1951, s. 116A as a1nended in 1966--C'ourt can devise appropriate procedure In absence of express provlsions-Provislqns of Civil Procedure Code 0. XL/ r. 22 can be drawn upon.\n\nIn an election petition there were charges under s. 123(6) read with s. 77 of the Representation of the People Act, 1951 against the appellant.\n\nThe High Court decided against him. although absolving him of certain charges. The appellant filed an appeal in this Court under s. 116A of the Representation of the People Act, 1951 as amended in 1966. The respondent contended that he was entitled to submit without preferring a >ubstantive appeal to this Court that the charges in respect of which the D appellant had been absolved by the High Court were proved and he should therefore be allowed to raise those questions. On the matter being te ferred to a large bench:\n\nHELD : The respondent's contention must be accepted.\n\nIn Rambhai Ashabhai Patel's case it was ruled that this Court has power to decide all the points arising from the judgment appealed against F and even. in the absence of an el>press provision like OXLI r. 22 of the Code of Civil Procedure, this Court can devise appropriate procedure to be adopted at the hearing and there could be no better way of supplying the deficiency than by drawing upon the provisions of a general law Jike the Code of Civil Procedure and adopting surh of those provisions as are suitable. The decision di the Court did not rest either on the ground that the appeal before it was brought by special leave or on the interpretation of s. J 16A as it then stood. [426 D-GJ F\n\nRamanbhai Ashabhai Pate/ v. Debbi Ajitkumar Pulsinji cf< Ors. [196S] I S, C.R. 712, followed and applied.\n\nCIVIL APPELLATE JURISDICTION ; Civil Appeal No. 1125 of 1970.\n\nAppeal under s. 116-A of the R$Presentation of the People G Act, 1951 from the judgment and order dated March 26, 1970 of the Assam and Nagala.nd High Court in Election Petition No. 2 of 1969.\n\nS. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent.\n\nOn January 14, 1971 the Court passed, the following\n\nORDER\n\nAfter hearing the arguments we are of the view that under s. 116A of the Representation of the People Act, 1951 as amend- B ed by the Act of 1966, the respondent is entitled to mpport the judgment of the High Court without preferring an appeal against an order made against him if the ultimate decision in the petition is in his favour.\n\nThe reasons for this order will be given hereafter.\n\nThe Judgment of the Court was delivered by\n\nHegde, J.\n\nThe decision on the .question of law considered by this Bench was announced on the 14th of this month.\n\nWe are now proceeding to give our reasons in 'support of that decision.\n\nOn September 14, 1970, two of us (Shah, C.J. and Grover, J.) passed the following order :\n\n\"This appeal raises an important question of procedure. We have heard learned Counsel appearing Qll behalf of the parties. Mr. Gupte appearing for the appellant contended that the charge under s. 123(6) read with s. 77 of the Representation of the People Act was not made out. Mr. Chari appearing on behalf of the respondent contended that he was entitled to submit without preferring a substantive appeal to this Court that the charges in respect of which the appellant has been absolved by order of the High Court are proved and he should be permitted to raise those questions in this appeal. Our attention has not been invited to any case which interprets the provisions of s. 116(A) of the Representation of the People Act at it stands after the amendment made in the year 1967:\n\nIn view. of the importance of the question, we direct that the case be referred to a larger bench of five judges.\n\nHearing expedited.\n\nThough the entire appeal was referred to a larger bench for decision, at the hearing it was considered advisable to decide only the question of law set out in the order and not the whole case.\n\nWe accordingly heard arguments only on that question. In our opinion that question is concluded by the decision of this Court H in Ramanbhai Ashabhai Patel v. Debhi Ajitkumar Fulsinji and'\n\nOrs.(1)\n\n(I) [1965] 1 S.C.R. 712.\n\n426.\n\nSUPREME COURT REPORTS\n\n\nMr. S. V. Gupte, learned Counsel for the appellant tried to A distinguish that decision on two grounds viz. ( 1) that the decision in question was rendered in an appeal to this Court by special leave and as such the jurisdiction of this Court was much wider lhan that conferred on this Court by s. l 16A of the Representation of the People Act, 1951 and (2) that the scope of an appeal under.s. 116A before its amendment in 1966 wasdifferent than B from its scope at present. We are unable to accept either of these two contenti<; ms.\n\nIn the above decision, it was ruled that this Court has power to decide all the points arising from the judgmen' appealed against and even in the absence of an express provision like 0. XLI, r. 22 of the Code of Civil Procedure, this Court can devise appropriate procedure to be adopted at the hearing and there could be no better way of supplying the defi- .ciency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions .as are suitable. The decision of the Court did not rest either on .the ground that the appeal before it was brought by special leave •Of this Court or on the interpretation of s. 116A as it than stood.\n\nThe reasons behind 1he rule laid down by this Court are found D .at p. 725 of the report. Therein it is observea :\n\n\"It is true that the rules framed by this Court in exercise of its rule making powers do not contain any provision analogous to 0. XLI, rule 22 of the Code of .Civil Procedure which permits a party to support the judgment appealed against upon a ground which has been found against him in that judgment. The provision nearest to it is the one contained in 0. XVIII, r. 3 of the Rules of this Court which requires parties to file statement of cases. Sub-rule ( 1) of that rule provides that Part I of the statement of the case shall also.set out the contentions of the parties and the points of Jaw and fact arising iri the appeal.\n\nI~ further provides that in Part II a party shall set out the prositions of law to be urged in support of the contentions of the party lodging the case and the authorities in support . thereof.\n\nThere is no reason to limit the provision of this rule only to 'those contentions which deal with the point& found in favour of that party in the judgment appealed from.\n\nApart from that we think that while dealing with the appeal before it this Court has the power to decide all the pomts arising from the judgment awealed against and :even in the absence of an express provision like\n\n0. XLI, r. 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a\n\ngeneral law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed irom has been given wm not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were natived in that judgment.\"\n\nThe decision referred to abO'l'e will govern the q uesti_on of law with which we are connected in this case. The appeal was C already directed by the Chief Justice to be posted before the Bench presided over by Mitter J. for further hearing.\n\nG.C.", "total_entities": 57, "entities": [{"text": "TIIEPFULO NAKHRO ANGAMI", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "THEPFULO NAKHRO ANGAMI", "offset_not_found": false}}, {"text": "SHRIMATI RAVALU alias RENO M. SHAIZA", "label": "RESPONDENT", "start_char": 28, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "SHRIMATI RAVALU alias RENO M. SHAIZA", "offset_not_found": false}}, {"text": "January 21, 1971", "label": "DATE", "start_char": 65, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "TIIEPFULO NAKHRO ANGAMI\n\nV• SHRIMATI RAVALU alias RENO M. SHAIZA January 21, 1971\n\n[J. C. SHAH, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER\n\nAND A. N. RAY, JJ.]"}}, {"text": "C. SHAH, C.J.", "label": "JUDGE", "start_char": 87, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 102, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 116, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 129, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 147, "end_char": 161, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 432, "end_char": 470, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 116A", "label": "PROVISION", "start_char": 472, "end_char": 479, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "s. 123(6)", "label": "PROVISION", "start_char": 691, "end_char": 700, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "s. 77", "label": "PROVISION", "start_char": 711, "end_char": 716, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 724, "end_char": 762, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 116A", "label": "PROVISION", "start_char": 916, "end_char": 923, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 931, "end_char": 969, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Rambhai Ashabhai Patel", "label": "OTHER_PERSON", "start_char": 1368, "end_char": 1390, "source": "ner", "metadata": {"in_sentence": "In Rambhai Ashabhai Patel's case it was ruled that this Court has power to decide all the points arising from the judgment appealed against F and even."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 1576, "end_char": 1603, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 1797, "end_char": 1824, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ramanbhai Ashabhai Pate/", "label": "OTHER_PERSON", "start_char": 2063, "end_char": 2087, "source": "ner", "metadata": {"in_sentence": "426 D-GJ F\n\nRamanbhai Ashabhai Pate/ v. Debbi Ajitkumar Pulsinji cf< Ors. ["}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2170, "end_char": 2198, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION ; Civil Appeal No."}}, {"text": "s. 116", "label": "PROVISION", "start_char": 2246, "end_char": 2252, "source": "regex", "metadata": {"statute": null}}, {"text": "Presentation of the People G Act, 1951", "label": "STATUTE", "start_char": 2264, "end_char": 2302, "source": "regex", "metadata": {}}, {"text": "S. V. Gupte", "label": "OTHER_PERSON", "start_char": 2427, "end_char": 2438, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "S. K. Ghose", "label": "LAWYER", "start_char": 2440, "end_char": 2451, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 2481, "end_char": 2491, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "A. R. Bharthakar", "label": "LAWYER", "start_char": 2493, "end_char": 2509, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "R. C. Chaudhry", "label": "LAWYER", "start_char": 2511, "end_char": 2525, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "B. K. Dass", "label": "LAWYER", "start_char": 2530, "end_char": 2540, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "A. S. R. Chari", "label": "LAWYER", "start_char": 2550, "end_char": 2564, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 2566, "end_char": 2576, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 2578, "end_char": 2589, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "R. K. Mn", "label": "LAWYER", "start_char": 2591, "end_char": 2599, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "V. I.\n\nFrancis", "label": "LAWYER", "start_char": 2601, "end_char": 2615, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "S. Chakravarty", "label": "LAWYER", "start_char": 2620, "end_char": 2634, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Bharthakar, R. C. Chaudhry and B. K. Dass, b~~~~ H A. S. R. Chari, R. K. Garg, D. P. Singh, R. K. Mn, V. I.\n\nFrancis and S. Chakravarty, for the respondent."}}, {"text": "s. 116A", "label": "PROVISION", "start_char": 2775, "end_char": 2782, "source": "regex", "metadata": {"linked_statute_text": "Presentation of the People G Act, 1951", "statute": "Presentation of the People G Act, 1951"}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 2790, "end_char": 2828, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hegde", "label": "JUDGE", "start_char": 3152, "end_char": 3157, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHegde, J.\n\nThe decision on the .question of law considered by this Bench was announced on the 14th of this month."}}, {"text": "14th of this month", "label": "DATE", "start_char": 3246, "end_char": 3264, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHegde, J.\n\nThe decision on the .question of law considered by this Bench was announced on the 14th of this month."}}, {"text": "September 14, 1970", "label": "DATE", "start_char": 3343, "end_char": 3361, "source": "ner", "metadata": {"in_sentence": "On September 14, 1970, two of us (Shah, C.J. and Grover, J.) passed the following order :\n\n\"This appeal raises an important question of procedure."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3374, "end_char": 3378, "source": "ner", "metadata": {"in_sentence": "On September 14, 1970, two of us (Shah, C.J. and Grover, J.) passed the following order :\n\n\"This appeal raises an important question of procedure."}}, {"text": "Grover", "label": "JUDGE", "start_char": 3389, "end_char": 3395, "source": "ner", "metadata": {"in_sentence": "On September 14, 1970, two of us (Shah, C.J. and Grover, J.) passed the following order :\n\n\"This appeal raises an important question of procedure."}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 3558, "end_char": 3563, "source": "ner", "metadata": {"in_sentence": "Mr. Gupte appearing for the appellant contended that the charge under s. 123(6) read with s. 77 of the Representation of the People Act was not made out."}}, {"text": "s. 123(6)", "label": "PROVISION", "start_char": 3624, "end_char": 3633, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s. 77", "label": "PROVISION", "start_char": 3644, "end_char": 3649, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 3657, "end_char": 3689, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Chari", "label": "OTHER_PERSON", "start_char": 3712, "end_char": 3717, "source": "ner", "metadata": {"in_sentence": "Mr. Chari appearing on behalf of the respondent contended that he was entitled to submit without preferring a substantive appeal to this Court that the charges in respect of which the appellant has been absolved by order of the High Court are proved and he should be permitted to raise those questions in this appeal."}}, {"text": "s. 116(A)", "label": "PROVISION", "start_char": 4108, "end_char": 4117, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 4125, "end_char": 4157, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1965] 1 S.C.R. 712", "label": "CASE_CITATION", "start_char": 4747, "end_char": 4766, "source": "regex", "metadata": {}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 5110, "end_char": 5148, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 116A", "label": "PROVISION", "start_char": 5191, "end_char": 5198, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 5535, "end_char": 5562, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 5759, "end_char": 5786, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 116A", "label": "PROVISION", "start_char": 6002, "end_char": 6009, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7376, "end_char": 7403, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7590, "end_char": 7617, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mitter", "label": "JUDGE", "start_char": 8274, "end_char": 8280, "source": "ner", "metadata": {"in_sentence": "The appeal was C already directed by the Chief Justice to be posted before the Bench presided over by Mitter J. for further hearing."}}]} {"document_id": "1971_3_428_437_EN", "year": 1971, "text": "COMMISSIONER OF L\"ICOME-TAX, MADRAS A v.\n\nT.S.PL.P. CHIDAMBARAM CHETI1AR (DEAD) THROUGH\n\nL. Rs.\n\nJanuary 21, 1971\n\n[J, C. SHAH, C.J., K. S. HEGDE AND A. N~ GROVER, JJ.) B\n\nIncome Tax Act, 1922, s. 34(1) (a) Requirements of-Assessee not disclosing part of money repaid against loan and interest--!! undisclosed amou.1t not taxable and to be presumed adjuslo?d against principal-System of accounts maintained by assessee-lf relevam in relation to concealed income. ·\n\nThe asscssee's father made various loans to P in 1932. Jn July, 1932 P executed a mortgage of some of his properties in favour of the assessee's father for , a sum of Rs, 2.76 lakhs, After the mortgagee bad instituted a suit in December, 1940 claiming a sum of Rs. 5.50 Jakhs in elusive of principal and interest, a compromhe decree was passed in October, 1943 for a sum of Rs. 3 50 lakhs in full satiS'faction of the mortgagee's claim,\n\nWhen the income-tax assessment proceedings of the assessee for the assessment year 1944-45 as karta of his Hindu Undivided Family were pending, the Income Tax Officer, Trichy, received information from the Income Tax Officer, Erode, that the mortgagor had secretly paid to the mortgagee a sum of Rs. 1.50 lakhs during the year ended on April l, 1944, :and that this was not included in the compromise decree. As the assessee denied receivin~ this amount and the• Assessing Officer had no Qther material before him, he made a note in the order sheet that the I.T,0,, Erode should be asked to give further details, and in the mean time, the assessment for 1944-45 should not .be held up.\n\nOn receiving further information, the Assessing Officer .cari1e to believe that a sum of Rs. I.SO lakhs had escaped assessment and after issuing the assessee a notice under s. 34(1)(a), he included the additional sum and taxed him on that basis.\n\nThe Appellate Assistant Commissioner set aside the order and directed the I, T.O. to re-do t.he assessm\"nt after giving the assessec an opportunity to cross-examine the witnesses on the basis of whose state ments he had rached his conclusion, A:ftcr examination of further wit nesses and other evidence, a fresh order of assessment was made on the assessee under s. 23(3) read with s. 34 and this was affirmed by the Appellate Assistant Commissioner as well as by the Tribunal. Although the High Court, upon a reference, found that the assessment under s. 34 was valid and' the I.T.O, had rightly acted in giving effect to the order of the Appellate Assistant Commissioner to re-do the assessment, it held, purporting to rely on the decision in C.I.T. Bihar and Orissa v. Kameshwar Singh, 2. I.T.R. 94, that :the sum .pf Rs, 1,50,000 received by the assessee during tile relevant accounting was not taxable as the assessee maintained hi ac<;ri! -1; 1944 d that the same was not included in the compromise decree. When the Income-tax Officer asked the assessee about the same, be denied G having received any amount secretly. Apart from the information conveyed by the Income-tax Officer, Erode, the Assessing Officer had no other material before him to show that any amount had been paid secretly by the mortgagor to the mortgagee. Hence on May 27, 1945, the Income-tax Officer made the following note in the order sheet : H \"It is denied that there was any secret understanding not to show the payment of Rs. 1,50,000. The\n\nreceipt of this amount is entirely denied ... The Incometax Officer, Erode should be asked to give further details and to ask the Pattayagar {o produce evidence of the payment. In any event, this should come up for consideration only in the assessment year 1944-45 as only the exces over Rs. 2,76,000 plus legal expenses can be treated as interest income in the hanmmissi~ of Income-tax, the High Court came to the conclusion that the sum of Rs. 1,50,000 received by the assessee during the relevant\n\naccount year must be presumed to have been appropriated by the assessee towards the principal amount due to the mortgagor and hence the same cannot be considered as an income of the assessee G during that year.\n\nThe assessee was maintaining his account!I in accordance with what is known as Chetty system of accounts. The material on record shows that according to the Chetty system of accounts, the creditor appropriates a receipt first towards the cost of litigation, then towards the principal amount due .and the balance towards the arrears of interest. The High Court was of H the view that the sum of Rs. 1,50,000 secretly received by the creditor must be deemed to have been kept in suspense. As the debator had not given any direction about the appropriation of that amount it was open to the creditor to appropriate the same 14-J.817Sl'pC1;71\n\ntowards the principal amount and further he must be presumed to A have appropriated that amount towards the principal amount before s. 34 proceedings were started against him firstly because of the system of accounts maintained by !rim and secondly because every one must be deemed to have, i\\Cled in a manner least disadvantageous to him. In support of this conclusion reliance was placed by the High Court on the decision of the Judicial Committee in The Commissioner of Income-Tax, Bihar and Orissa v.\n\nKameshwar Singh('). In that case, nature of several receipts by the assessee came up for consideration. For our present purpose\n\nwe nd only refer to two of them. One Damodar Das Burman owed to the assessee in *e Fasli ye11r 1332 Rs. 3,09,281. ])(Iring\n\nthe currency of the debt the debtor had made regular payments to c .t!te assessee over a number of years, the total of which payments\n\n\\VBS .not stated. Those payments were entered in the deposit i:egister maintained by the assessee but no allocation thereof were made as betw.een principal and interest, and no part of those payments were carried to the interest register maintained by the assessee. Conse- . quently\"\"11D part of these payments was subje<'ted to tax until the Fasli year 1331, in which year for the first time the Income-tax D Officer cme to know about the deposit register maintained by the assessee.\n\nIn that year, the deposit register showed a receipt of Rs.-38,091 and on this the officer claimed and was paid tax on the footing that it was attributable1 to interest and not to principal.\n\nThe result is that against the total interest on the debt, viz. :Rs. 3,09,281, no sums had been attributed by the assessee to interest out of the payments made to him by the debtor. But the Income-tax Officer had himself treated the sum of Rs. 38,091 received in the year Fasll 1331 as interest and taxed it accordingly.\n\nThat left Rs. 2, 7l,190 as the balllJ!l.ce of the total interest on the debt, during its currency towards which balance the assessee made . no attributions of interest out of the payments received by him from the debtor during its currency. No tax accordingly had been paid in respect of any of these receipts other than on Rs. 38,091.\n\nTheref_ore the question before the Court was how in those circumstances should be received of Rs. 2,78,000 itn the Fasli year 1332 be treated.\n\nDealing with that question the Judicial Committee observed:\n\n\"Now, where interest is outstanding on a principal sum due and the creditor receives an open payment from the debtor without any appropriation of the payment as betweeri capital and interest, by either debtor or creditor, the presumption is that the payment is attributable in the first instance towards the outstanding interest. . . . . . . . This presumption is no doubt operative primarily in questions between debtor and creditor, but\n\n.. (I) [1933] 2 l.T.R. 94.\n\nin their Lordship's view, the Income-tax Officer, finding that the assessee received a payment from his debtor of Rs. 2,78,000 in the year i:.~\"I. N. Rana & Ors., [1964]5 S.C.R. 294, 307, 308, applied.\n\nCIVIL APPELL/I.TE JURISDICTION : Civil Appeal No. 576 of A 1969.\n\nAppeal from the judgment and order dated December 11, 1968 of the Delhi High Court in Civil Writ No, 1440 of 1.967.\n\nA. S. R. Chari, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, B for the petitioner.\n\nS. T. Desai and R. N. Sachthey, for respondents Nos. 2, 3 and\n\nS. P. Nayar, for respondents Nos. 1, 4 and 5.\n\nS. K. Mehta and K. L. Mehta, for the iintervener.\n\nThe Judgment of the Court was delivered by\n\nGrover, J. This is an appeal by cei:tificate from a common judgment of the Delh_i High Court which disposed of a batch of\n\n14 petitions under Art. 226 of the Constitution.\n\nThe question involved is of importance and relates to the exercise of powers expressly conferred on the President by clause (c) of the proviso D to Art. 311 (2) of the Constitution.\n\nOn 14th April, 1967, the appellant and 1 i other members of the Ddhi Police Force were dismissed from service.\n\nThe order dismissing the appellant is reproduced below :\n\nORDER\n\nE \"Whereas, you Shri Sardari Lal, Sub-Inspector, Delhi Police No. 331 /D, Police Station Kamla Market, Delhi hold your office during the pleasure of the President, and\n\nWhereas the President is satisfied that you are unfit to be retained in the public service and ought to be dismissed from service, and\n\nWhereas the President is further satislied under sub-clause (c) of proviso to clause (2) of article 311 of the Constitution that in the interest of the security of the State it is not expedient to hold an inquiry,\n\nNow, therefore, the President is pleased to dismiss you from service with immediate effect.\n\nBy order and in the name of the President of India\n\nSd/-\n\n(B. Venkataraman) H Joint Secretary to the Government of India in the Ministry of Home Affairs.\"\n\n(((\n\n• .\n\nIt was common ground before the High Court and has not been disputed before us that the President had no cccasion 'to deal with the case or the appellant himself and the order was made by Shri Venkataraman, Joinr Secretary to the Government of India in the Ministry of Home Affairs. It was claimed by him that he was competent to make the order by virtue of the authority which he derived under the Government of India (Allocation of Business) Rules, 1961 made under Art. 77(3) of the Constitution. Before the High Court, the controversy was confined to the narrow point whether the function which is to be performed 'by t11e President under clause (c) of the proviso to Art. 311(2) could be performed by the authority to whom such function had been allocated under the aforesaid Rules.\n\nThe High Court negatived the contention raised on behalf of the appellant that such a function could not have been delegated by the President to any other authority. The High Court also relied on the provisions of Art. 77(2) which provides for the authentication of orders made in the name of the President.\n\nD Under Art. 53(1) the Executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.\n\nArt. 77(1) lays down that all executive action of the Government of India shall be expressed to be taken in the name of the President. Clause (3) of that Article enables the President E to make rules for the more convenient transaction of the business o.f the Government of India. Chapter I of Part XIV contains inter alia the three main provision relating to the Services.\n\nArticles 309, 310 and 311 may be set out to the extent necessary.\n\n\"309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Uni6n or of any State :\n\n\"Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in .the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.\"\n\n\"310. (1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a Civil service of the Union or of an all- India service or holds any pos1 connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the G, overnor of the State.\n\n(2) ,,\n\n\"311. (I) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.\n\n(2) No such person as aforesaid shall be dismissed or removed lor reduced in rank except afrer an inquiry in which he has been informed of the charge against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to im.J?OSe on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry :\n\nProvided that this clause shall not apply-\n\n(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led t~ his conviction on a criminal chaige;_or\n\n\"(b) where the authority empowered to dismiss or . remove a person or io reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or\n\n(c) where the President or the Governor, as the case may be, is satisfied that , in the interest of the security of the State it is not expedient to hold such inquiry.\n\n(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to\n\nh?d such inquiry as is referred to in clause (2), the dec1s10n thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.\"\n\nI ~\n\n\"· B\n\n\" ..\n\nThese Articles have come up for consideration before this Court in several cases and in connection with diverse points. The view that has been taken with regard to their true content, scope and inter connection and the nature of the power exercisable under them is that while Art. 310 provides for the tenure at the pleasure of the President or the Governor, Art. 309 enables the Legislature or the Executive as the case may be to make any law or rule in regard inter a/ia to conditions of service without impinging upon the overriding power recognised under Art. 31,0 tead with Ari.\n\n311. The power to dismiss a public servant at pleasure is outside the scope of Articles 53 and 154 of the Constitution and cannot be delegated by the President or the Governor, to .a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution.\n\nThis, ho:, vever, does not mean that a law cannot be made under Art. 309 or a rule cannot be framed under the proviso to the said Article prescribing the procedure by whcih. and the authority by whom the said pleasure can be exercised.' Moti Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaan, Pandu. etc.(') Art. 311 contains the main safeguards for D civil servants in the matter of dismissal or removal or reduction in rank-while the procedure provided in clause (2) must be followed before the dismissal or removal or reduction in rank of a civil servant can be ordered, there are certain exceptions which have been made where it is not necessary to comply with the requirements of the subtantive part of clause (2) of Art. 311. These E exceptions are contained in the three clauses-(a), (b) and (c) of the proviso to clause (2).\n\nAs in the cases mentioned in the proviso, the pedure laid\n\ndon i!' clause (2) has no.t o be follow .. ed and the ?nl protection which JS conferred on a cwli servant cannot be ava1 of by him, F we , must look at them care.fully. A dichotomy hay en introduced m clause (b) and (c) with regard to the authority or the functionary who has to be satisfied about the matters stated therein. In clause (b), it is only the authority empowered to dismiss or re- . move a pern or to reduce him in rank who has to be satisfied\n\nthat it is not reasonably practicable to hold the inquiry provided G by clause (2) and his decision in terms of clause (3) of the Artcile shall be final. But in clause (c) it is the President or the Governor alone, as the case: may ~. who hs o be satisfied that in the inteest the secunty of die State 1t 1s not expedient to hold such inquiry.\n\nII Now he argument on behalf of the appellant has proceeded ?n these hns. Art. 53(1) vests the Executive power of the Union\n\nrn the President but Art. 77 deals only with executive action of\n\n(I) (1964) 5 S.CR. 68) 11 pp. 731 .t: 732). 16-L807 Sup Cl/7t\n\nthe Government of India. There are several Articles under which A the President is required to be satistied before an action is taken.\n\nClause (c) of the proviso to clause (2) of Art. 311 is one of such provisions. The other provision which also deals with the question of satisfaction about the security of India being threatened etc. is the one contained in Art. 352 which relates to Proclamation of emergency. Art. 356 says that if the President on receipt of B a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the goverrunent of the State cannot be carried on in accordance wich the provisions of the Constitution, he may make a Proclamation as provided in the Article.\n\nArt. 360' which contains provisions relating to financial emergency also employs the language \"if the President is satisfied that a situac tion has arisen whereby t!he financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.\" The enumeration of the aforesaid Ariicles is merely illustrative and no~ exhaustive. In such cases, it ls the President who has to be personally satisfied on the material placed before him about the various mat- , ters on which action has to be taken. Such functions may pertain D to the executive power of the Union which is vested in him under Art. 53(1) but these cannot fall within Art. 77(1) which is confined to .:xecutive ai:tion of the Government of_ India. . Apart from the Articles mentioned above, there are several other Articles which may also be considered in thjs connection. Ii would be best to refer to the observations in (2) Jayantilal Amrit Lal Shod- E han v. F. N. Rana and Others( 2 ),\n\n\"The power to promulgate Ordinances under Art. 123; to suspend the provisions of Arts. 268 to 279 dur• ing an emergency; to declare failure of the Constitutional machinery in States under Art. 356; to declare a financial ei; nergency under Ait. 360; to make rules regarding the recruitment and .:onditions of service of persons ap' pointed to posts and services in connection with the affairs of the Union under Art. 309-to enumerate a few out of the various powers-arc not powers of the Union Goverrunent; these are powers vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Art. 258(1). The plea that the very nature of these_ powers is snch that they could not be intended to be entrusted under Art. 258(1) to the State or officer of the State, and therefore, that clause must have a limited content, proceeds upon an obvious fallacy. Those powers cainnot be delegated under Art. 258(1) because they are not\n\n(2) [1964] 5 S.C.R. 294 at pp, 307 to 308.\n\n( ..\n\nSARDARI LAL v. UNION.(Grover, /.)\n\nthe powers of th!,\\ Union, and not because of therr special character. There is a vast array of other powers exercisable by the President-to mention only a few-appointment of Judg_es: Arts. 124 & 217, appointment of Committees of Official Languages Act; Art. 344, appointment of Commissions to investigatle conditions of backward classes; Art. 340, appointment of Special Officer for Scheduled Castes and Tribes: Art. 338, exercise of his pleasure to terminate employment : Art. 310, declarl!_tion that in the interest of the security of the State it is not expedient to give to a public servant sought to be dismissed an opportunity contemplated by Art. 311 (2)-these are executive powers of the President and may not be delegated or entrusted to another body or officer because they do not fall within Art. 258.\"\n\nIt seems to us that there is a good deal of substance in the argument raisd on behalf of the appellant.\n\nOn the principles which have been enunciated by this Court, the function in clause\n\n(c) of the proviso to Art 311(2) cannot be delegated by the President' to any one else in the case of a civil servant of the Union.\n\nIn other words he has to be satisfied personally that in the interest of the security of the State, it is not expedient to hold the inquiry prescribed by clause (2). In the first place, the general consansus has been that executive functions of the nature entrusted by the Articles, some of whih have been mentioned before and in particular those Articles in which the President has to be satisfied himself about the existence of certain fact or state of affairs cannot be delegated by him to any one else. Secondly even with regard to clause (c) of the proviso, there is a spec.ific observatio!I in the passage extracted above from the case of Jayantilal Amrit Lal Shodhan that the powers of the Preside.nt under that provision cannot be delegated.\n\nThirdly, the dichotomy which has been specifically introduced between tt.e authority mentioned in clause\n\n(b) and the President mentioned in clause (c) of the proviso cannot be without significance. The Constitution makers apparently felt that a matter in which the interest of the security of the State had to be considered should receive the personal attention of the President or the head of the State and he should be himself satisfied that an inquiry under the substantive part of clause (2) of Art. 311 was not expedient for the reasons stated in clause (c) of the proviso in the case of a particular servant.\n\nWe are not impressed with the reasoning of the High Court with reference to Art. 77(2). If the function or the power exercisable under clause (c) of the proviso under consideration could not be delegated or allocated to any one else by the President. Art.\n\n77(2) will not stand in the way of the Court in the matter of examin- A ing the validity of the order.\n\nFor all the above reasons this appea1 is allowed and the judgment of the High Court is set aside.\n\nThe impugned order by which the appellant wa.s dismissed from service shall stand quashed on the ground that it was illegal,_ ultra vires and void. The appel- B !ant shall be entitled to costs in this court and the High Court.\n\nG.C.\n\nAppeal allowed.", "total_entities": 81, "entities": [{"text": "SARDARI LAL", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "SARDARI LAL", "offset_not_found": false}}, {"text": "UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 16, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "January 21, 1971", "label": "DATE", "start_char": 41, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "SARDARI LAL v.\n\nUNION OF INDIA & ORS ..\n\nJanuary 21, 1971\n\n[J. C. SHAH, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER,\n\nAND A. N. RAY, JJ.]"}}, {"text": "C. SHAH, C.J.", "label": "JUDGE", "start_char": 63, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 78, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 92, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 105, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 124, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 140, "end_char": 161, "source": "regex", "metadata": {}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 169, "end_char": 180, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 311(2)", "label": "PROVISION", "start_char": 486, "end_char": 495, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Delhi Police Force", "label": "ORG", "start_char": 580, "end_char": 598, "source": "ner", "metadata": {"in_sentence": "The appellant and 17 others were dismissed from Delhi Police Force."}}, {"text": "Art. 311(2)(c)", "label": "PROVISION", "start_char": 754, "end_char": 768, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Government of India", "label": "ORG", "start_char": 932, "end_char": 951, "source": "ner", "metadata": {"in_sentence": "The order was made by the Joint Secretary to the Government of India, Ministry of Home Affairs under authority granted to him by the Government of India (Allocation of Business) Rules, 1961 made under Ar:."}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 1429, "end_char": 1440, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 309, 352, 356, 360", "label": "PROVISION", "start_char": 1859, "end_char": 1883, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Jayanti", "label": "OTHER_PERSON", "start_char": 2154, "end_char": 2161, "source": "ner", "metadata": {"in_sentence": "c) of the proviso there is specific observation in Jayanti/a/'s case that the powers of the President under that provision cannot be delegoted."}}, {"text": "Art. 77(2)", "label": "PROVISION", "start_char": 3097, "end_char": 3107, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "CIVIL APPELL/I.TE JURISDICTION", "label": "PETITIONER", "start_char": 3418, "end_char": 3448, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELL/I.TE JURISDICTION : Civil Appeal No."}}, {"text": "A. S. R. Chari", "label": "LAWYER", "start_char": 3601, "end_char": 3615, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, B for the petitioner."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 3617, "end_char": 3628, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, B for the petitioner."}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 3630, "end_char": 3641, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, B for the petitioner."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 3646, "end_char": 3660, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, B for the petitioner."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 3685, "end_char": 3696, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and R. N. Sachthey, for respondents Nos."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3701, "end_char": 3715, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and R. N. Sachthey, for respondents Nos."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 3748, "end_char": 3759, "source": "ner", "metadata": {"in_sentence": "2, 3 and\n\nS. P. Nayar, for respondents Nos."}}, {"text": "Grover", "label": "JUDGE", "start_char": 3890, "end_char": 3896, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J. This is an appeal by cei:tificate from a common judgment of the Delh_i High Court which disposed of a batch of\n\n14 petitions under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4032, "end_char": 4040, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 4211, "end_char": 4219, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "14th April, 1967", "label": "DATE", "start_char": 4249, "end_char": 4265, "source": "ner", "metadata": {"in_sentence": "On 14th April, 1967, the appellant and 1 i other members of the Ddhi Police Force were dismissed from service."}}, {"text": "Ddhi Police Force", "label": "ORG", "start_char": 4310, "end_char": 4327, "source": "ner", "metadata": {"in_sentence": "On 14th April, 1967, the appellant and 1 i other members of the Ddhi Police Force were dismissed from service."}}, {"text": "Sardari Lal", "label": "PETITIONER", "start_char": 4444, "end_char": 4455, "source": "ner", "metadata": {"in_sentence": "The order dismissing the appellant is reproduced below :\n\nORDER\n\nE \"Whereas, you Shri Sardari Lal, Sub-Inspector, Delhi Police No.", "canonical_name": "SARDARI LAL"}}, {"text": "article 311", "label": "PROVISION", "start_char": 4820, "end_char": 4831, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "B. Venkataraman", "label": "LAWYER", "start_char": 5095, "end_char": 5110, "source": "ner", "metadata": {"in_sentence": "By order and in the name of the President of India\n\nSd/-\n\n(B. Venkataraman) H Joint Secretary to the Government of India in the Ministry of Home Affairs.\"", "canonical_name": "B. Venkataraman"}}, {"text": "Venkataraman", "label": "LAWYER", "start_char": 5395, "end_char": 5407, "source": "ner", "metadata": {"in_sentence": "It was common ground before the High Court and has not been disputed before us that the President had no cccasion 'to deal with the case or the appellant himself and the order was made by Shri Venkataraman, Joinr Secretary to the Government of India in the Ministry of Home Affairs.", "canonical_name": "B. Venkataraman"}}, {"text": "Ministry of Home Affairs", "label": "ORG", "start_char": 5459, "end_char": 5483, "source": "ner", "metadata": {"in_sentence": "It was common ground before the High Court and has not been disputed before us that the President had no cccasion 'to deal with the case or the appellant himself and the order was made by Shri Venkataraman, Joinr Secretary to the Government of India in the Ministry of Home Affairs."}}, {"text": "Art. 77(3)", "label": "PROVISION", "start_char": 5669, "end_char": 5679, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 5873, "end_char": 5884, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 77(2)", "label": "PROVISION", "start_char": 6204, "end_char": 6214, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 53(1)", "label": "PROVISION", "start_char": 6307, "end_char": 6317, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 77(1)", "label": "PROVISION", "start_char": 6507, "end_char": 6517, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 309, 310 and 311", "label": "PROVISION", "start_char": 6882, "end_char": 6907, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 310", "label": "PROVISION", "start_char": 10232, "end_char": 10240, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 10315, "end_char": 10323, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 10515, "end_char": 10522, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 53 and 154", "label": "PROVISION", "start_char": 10620, "end_char": 10639, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 10888, "end_char": 10896, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 11142, "end_char": 11150, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 11556, "end_char": 11564, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 53(1)", "label": "PROVISION", "start_char": 12604, "end_char": 12614, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 77", "label": "PROVISION", "start_char": 12676, "end_char": 12683, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "(1964) 5 S.CR. 68", "label": "CASE_CITATION", "start_char": 12725, "end_char": 12742, "source": "regex", "metadata": {}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 12963, "end_char": 12971, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 13092, "end_char": 13097, "source": "ner", "metadata": {"in_sentence": "The other provision which also deals with the question of satisfaction about the security of India being threatened etc."}}, {"text": "Art. 352", "label": "PROVISION", "start_char": 13144, "end_char": 13152, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 356", "label": "PROVISION", "start_char": 13197, "end_char": 13205, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 360", "label": "PROVISION", "start_char": 13512, "end_char": 13520, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 53(1)", "label": "PROVISION", "start_char": 14181, "end_char": 14191, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 77(1)", "label": "PROVISION", "start_char": 14221, "end_char": 14231, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Government of_ India", "label": "ORG", "start_char": 14279, "end_char": 14299, "source": "ner", "metadata": {"in_sentence": "77(1) which is confined to .:xecutive ai:tion of the Government of_ India. ."}}, {"text": "Art. 123", "label": "PROVISION", "start_char": 14586, "end_char": 14594, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 268 to 279", "label": "PROVISION", "start_char": 14625, "end_char": 14641, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 356", "label": "PROVISION", "start_char": 14732, "end_char": 14740, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 14956, "end_char": 14964, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 258(1)", "label": "PROVISION", "start_char": 15199, "end_char": 15210, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 258(1)", "label": "PROVISION", "start_char": 15321, "end_char": 15332, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 258(1)", "label": "PROVISION", "start_char": 15501, "end_char": 15512, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1964] 5 S.C.R. 294", "label": "CASE_CITATION", "start_char": 15539, "end_char": 15558, "source": "regex", "metadata": {}}, {"text": "Arts. 124 & 217", "label": "PROVISION", "start_char": 15804, "end_char": 15819, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Committees of Official Languages Act", "label": "STATUTE", "start_char": 15836, "end_char": 15872, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 344", "label": "PROVISION", "start_char": 15874, "end_char": 15882, "source": "regex", "metadata": {"linked_statute_text": "Committees of Official Languages Act", "statute": "Committees of Official Languages Act"}}, {"text": "Art. 340", "label": "PROVISION", "start_char": 15959, "end_char": 15967, "source": "regex", "metadata": {"linked_statute_text": "Committees of Official Languages Act", "statute": "Committees of Official Languages Act"}}, {"text": "Art. 338", "label": "PROVISION", "start_char": 16033, "end_char": 16041, "source": "regex", "metadata": {"linked_statute_text": "Committees of Official Languages Act", "statute": "Committees of Official Languages Act"}}, {"text": "Art. 310", "label": "PROVISION", "start_char": 16094, "end_char": 16102, "source": "regex", "metadata": {"linked_statute_text": "Committees of Official Languages Act", "statute": "Committees of Official Languages Act"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 16270, "end_char": 16278, "source": "regex", "metadata": {"linked_statute_text": "Committees of Official Languages Act", "statute": "Committees of Official Languages Act"}}, {"text": "Art. 258", "label": "PROVISION", "start_char": 16424, "end_char": 16432, "source": "regex", "metadata": {"linked_statute_text": "Committees of Official Languages Act", "statute": "Committees of Official Languages Act"}}, {"text": "Art 311(2)", "label": "PROVISION", "start_char": 16647, "end_char": 16657, "source": "regex", "metadata": {"linked_statute_text": "Committees of Official Languages Act", "statute": "Committees of Official Languages Act"}}, {"text": "Jayantilal Amrit Lal Shodhan", "label": "OTHER_PERSON", "start_char": 17403, "end_char": 17431, "source": "ner", "metadata": {"in_sentence": "Secondly even with regard to clause (c) of the proviso, there is a spec.ific observatio!I in the passage extracted above from the case of Jayantilal Amrit Lal Shodhan that the powers of the Preside.nt under that provision cannot be delegated."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 18009, "end_char": 18017, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 77(2)", "label": "PROVISION", "start_char": 18202, "end_char": 18212, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art.\n\n77(2)", "label": "PROVISION", "start_char": 18377, "end_char": 18388, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]} {"document_id": "1971_3_469_477_EN", "year": 1971, "text": "...\n\nPURAN LAL SAH\n\nSTATE OF U.P.\n\nJanuary 21, 1971\n\n[P. JAGANMOHAN REDDY AND I. D. DUA, JJ.]\n\nContract-Claim on basis of quantum meruit-When sustainable.\n\nThe Public Works Department of the respondent.State had issued a tender notice for the construction of a road. The appellant mspected the site, went to the place where stone for the construction was said to available, and after satisfying himsel'f submitted a tender below th~ estimates in the tender notice. It was accepted and a contract was signed.\n\nThe estimates in the tender notice were prepared by the P.W.D. on the basis that stone was available at a distance of 26 chains from the work spot. In fact, stone was available at that distance in the Ctonment area but for its removal permission of the Cantonment authortlles had to be taken. The appellant was not able to obtain the necessary permission and so, he had to get the stone from a much longer distance.\n\nHe requested for a higher rate but his request was rejected. Thereafter, he commenced work, and after the work was completed the Executive Engineer recommended his case for a higher rate .\n\nBy a subsidiary contract the appellant undertook to execute some additional work for the department. The quantity of work which the appellant actually performed was far in excess of what was mentioned in the contract. He claimed a higher rate of payment 'for such extra work also.\n\nSince he did not get the higher rates he claimed, he filed a suit which was dismissed by the High Court in appeal.\n\nIn appeal to this Court, HELD. : (I) (a) In none of the clauses of the tender notice or conditions of contract or in any other document was there any assurance that if stone was not available at the distance of 26 chains the appellant would l-e paid higher rates. It was for the appellant to have satisfied himself before entering into the contract that the Cantonment authorities would permit him to take the stone. Sillce he commenced work aner his request for higher rate was rejected, it could not he said that the appellant was in any way induced by any assurance.\n\nThe Exutive Engmeer's letter was only recommendatory and did not establish a., Y right to obtain a higher rate. (472 G-H; 473 0-H; 475 CJ\n\n(b) It could not be said that once stone was not available at a distance of 26 chains, the contract was at an end and that because the appellant had done the work, he should be paid on the basis of quantum meruit.\n\nThat remedy would be available only when the original contract had been\n\nillscharged by the defendant in such a way as to entitle the plaintiff to regard himself as discharged from any further performance, and he elects to do so; but, where work is done under a contract persuant to its terms r.o amount can be claimed by way of quantum meruit. [475 G-H; 476 C-DJ\n\nAdopi Parshad & Sons. Ltd. v. Union of India, [1960] 2 S.C.R. 793; followed.\n\n(2) On the second item also the appellant could not succeed, because of cl. 12 of the contract. Under the clllll!IC the apP'!llant was bo11nd to perform all additional work which was l'lljuired of him on the same terms and conditions in which he undertook to do the main work.\n\nFurther,\n\nparagraph 5 of the special instructions which fanned part and parcel of A the original contract provided that unless he gave notice that he was not prepared to do any extra work in excess of the quantity df the work mentioned in the contract plus 30 per cent of that quantity of work, ond\n\nsettled fresh rates for such extra work over 30 per cent, the appellant could not claim anything other than the rates mentioned in the contract.\n\n;[476 E-H]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1687 of 1966.\n\nAppeal from the judgment and decree dated March 8, 1965 - hibited and made punishable by the language of s. 24. Demanding or receiving more than lawful dues and unduly delaying persons, animals, vehicles or things in crossing the river are both rendered , penal and punishable. Whether the person from whom the amount is demanded or received G is under no obligation to pay anything by way of toll while crossing the river bed or is bound by law only to pay 20 ps per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll when it is legally not so due. [181 C-Fl\n\nTo exclude cases like the present from the operatioµ of s. 24 would unduly restrict its effectiveness aq!f would indeed facilitate. illegal recoveries prohibited by it.\n\nTo~ that extent it would defeat the ob1ect and purpose H which this section is intended to achieve. [182 Al\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 171 of 1968.\n\nAppeal by special leave from the judgment and order dated September 13, 1967 of the Calcutta High Court in Criminal Refere, nce No. 36 of. 1967.\n\nD. N. Mukherjee, for the appellant.\n\nB The respondent did not appear.\n\nThe Judgment of the Court was delivered by\n\nDua, J.\n\nThe appellant, Basudev Hazra, was a leaseholder in respect of tolls of the public ferry at Sadar Ghat on the outskirts of Burdwan town for crossing the river Daroodar. This lease was for a period of three years (August 14, 1963 to August 13, 1966): C Ex. 2.\n\nOn November 30, 1964 Matiar Rahman Manda! filed a complaint against the appellant in the court of the Sadar Sub-Divisional Officer (Judicial), Burdwan alleging that the appellant used to realise illegally 20 nP. per cart from the cultivators who used\n\nto drive their carts across the dry bed of the river. The matter was reported to the S.D.0. who directed an enquiry.\n\nThis infuriated D the appellant. On November 29, 1964 the appellant realised double the amount of toll and on protesl and refusal by the complainant he was threatened with violence by the appellant.\n\nThe Magistrate trying the appellant for offences under ss. 23 and 24 of the Bengal Ferries Act, I of 1885 convincted him of both the olfences. The appellant was sentenced to a fine of E Rs. I 0/- under s. 23 and to fine of Rs. 20/- under s. 24 : in default of payment of fine in the formercase he was to undergo simple imprisonment for ten days and in the lattei: for 20 days.\n\nOn the appellant challenging his conviction on revision in the Court of the Sessioos Judge, the Additional Sessions Judge, Burd- F wan made a roference to the High Court recommending the appellant's acquittal. It was observed by the Additional Sessions Judge in his reference that accordiing to the appellant's defence the complainant's party were in fact usin~ the landing stage and the path constructed and repaired by him and, therefore, they were liable to pay the usual toll tax_. After reproducing s. 24 he adaect :\n\n\" ... the complainant's case as it appears from the petition of complaint and also from the evidence of the\n\nrhree witnesses examined on the point, is that they do not take advantage of any of the facilities provided by\n\nthe lessee and that the lessee demanded toll from them even though they were using their own path. The defence as I have aady stated, was that the pathway and the landing stage belonged to the lessee and that, therofore, he was entitled to collect toll. Forgetting the de~\n\nfence for the moment, it seems to me that no conviction\n\n11/s 24 can be sustained on the case of the complainant as it is.\"\n\nAccording to him the collection of mol).ey from the people using their own pathway might amount to extortion but it would not attract s. 24. We need not refer to the recommendation with respect to the appellant's conviction under s. 23 as this was accepted by the High Court and there is no appeal against acquittal under that section.\n\nThe High Court accepted the recommendation with respect to\n\nthe conviction under s. 23 and acquitted the. appellant of that offence. In regard 'to the conviction under s. 24 the High Court c observed that the trial Magistrate had found (i) that the appellant had .been realising toll charges in excess of the scheduled /rate of 20 ps. per cart and also realising such charges from persons who did not use the ferry an~ (ii) that though the complainant had not availed of the ferry and had taken the cart over the sandy bed of the river 40 ps. per cart were realised from him. These findings of fact were held not ope, n to re-examination on revision. The High D Court added that realisation of 40 ps. fell within the mischief of s. 24 which forbids every lessee from realising more than lawful toll even in cases in which he is entitled to demand ferry charges.\n\nRepelling the argument that the present was a case of extortion and itrdid not fall withi~ the purview of s. 24 the 8:igh Court, after refem g to the c_omplamant's case, observed that 1t was a case of E illega' realisation of toll in excess, when the appellant was not entitled to realise it at all and not a case of extortion under the_ Indian Penal Code. The amount had been illegally demanded as a toll and that als_o in excess of permissible rate.\n\nThe reference with rt>spect to s. 24 was, as observed earlier, rejected.\n\nThe appellant has secured special leave to appeal under Art. 136 of the Constitution and his counsel Mr. D. N. Mukherjee has stremmsly contended that the realisation of 40 ps. per cart from those who do not use the ferry can not as a matter of law fall within the misdhief of s. 24 of the Bengal Ferries Act. His contention in essence is that unless someone actually uses a ferry no charges realised from him for permitting him to cross the river, even if the demand is made by way of toll, can attract the provisions of s. 24. The contention though prima facie somewhat attractive does not stand scrutiny. Section 24 reads as under :\n\n\"Penalty for taking unauthorised tolls, and for causing delay:\n\nEvery such lessee or other person as aforesaid asking or taking more than the lawful toll, or without due cause\n\ndelaying any person, animal, vehicle or other thing, shall be punished with tine which may extend to one hundred rupees.\"\n\nIt is obvious that this section does not speak. of taking toll in excess of the lawful limit only from those persons who use the ferry.\n\nThis Act was enacted f:Jr regulating ferries but that does not mean that an illegal demand. µnder the pretext of ch1im by way of toll under this Act when it is not legally claimable was not intended by the legislature to be prohibited and made punishable by the language of s. 24, Shri Mukherjee drew our attention to s. 5 of the Act in which \"ferry'' is defined to include a bridge of boats, pontoons or rafts, a swing-bridge, a flying bridge, a temporary bridge and a landing stage. According to him, t'his definition suggests that it is only when a ferry is used and excessive charges rea-. lised that s. 24 would be attracted. l'he sublllission is difficult to accept. This definition which is not exh; mstive does not seem to us to control or otherwise to throw helpful light in the interpretation of s. 24. This section seems to have been designed in effect to protect the persons crossing the river against harassment and abuse of the privileged position which the lessee or other person authorised to collect the tolls of a public ferry occupies under the statute in the matter of control over the passage or pathway for crossing, fording or ferrying across the river.\n\nDemanding or receiving more than lawful dues and unduly delaying persons, ani- E mals, vehicles or things in crossing the river are both rendered penal and punishable. Whether the person from whom the amount is demanded or received is under no obligation to pay anythiilg by way of toll while crossing the river bed or is bound by law only to pay 20 ps. per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll when it is legally not so due.\n\nIn either case s. 24 would seem F to be altrackd : this construction would serve to suppress the mischief at which this section appears to be aimed.\n\nThe question whether or not the appellant's case falls within !!he mischief of extortion as defined under the Indian Penal Code is not strictly relevant to the point arising in the controversy because if the appellant's case is covered by s. 24 of the Act then he is liable to be punished thereunder.\n\nHis liability to be prosecuted under the Indian Penal Code cannot by itself in law exclude the applicability of s. 24 to his case. The Additional Sessions Judge was, in our opinion. not quite right in observing that the defence that the accused was entitled to claim the toll may be ignored, because defence of an accused {>Crson can legitimately he taken into consideration while assessing the value of the evidence and judging the guilt or innocence of the accused. The Jppellanfs defence in this case would clearly tend to support the complainant's case that the amount received was demanded as toll which was an unlawful\n\n.demand. To eX(:lude cases like the present from the operation of s. 24 would unduly restrict its effectiveness and would indeed faci- .litate illegal recoveries prohibited by it. . To that extent it would .defeat the object and purpose wllich this section is intended to achieve.\n\nWhen the appellant's counsel took us through !be evidence we found that the appellant had also delayed the prosection witnesses without due cause in crossing the river in violation of B.\n\n24. It is, however, unnecessary to pursue this aspect. Finally it may b~ pointed out that Art. 136 of the Constitution does not confer a right of appeal on a part!y. It only confers a discretionary power on this Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from 'illegality or from misapprehension or mistake in reading evidence c or frQm ignoring, excluding or illegally admitting material evidence.\n\nThe present case suffers from no such infirmity.\n\nThe appeal accordingly fails and is dismissed.\n\nR.K.P.S.\n\nAppeal dismissed.\n\nL107 S.n ClfP)/ 71-2500-13-5 72-GIPF.\n\nJ \\", "total_entities": 56, "entities": [{"text": "BASUDEV HAZRA", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "BASUDEV HAZRA", "offset_not_found": false}}, {"text": "MATIAR RAHAMAN MANDAL", "label": "RESPONDENT", "start_char": 15, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "MATIAR RAHAMAN MANDAL", "offset_not_found": false}}, {"text": "January 21, 1971", "label": "DATE", "start_char": 37, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "BASUDEV HAZRA\n\nMATIAR RAHAMAN MANDAL January 21, 1971\n\n[P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]"}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 56, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY*", "offset_not_found": false}}, {"text": "I. D. DuA, JJ.", "label": "JUDGE", "start_char": 80, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Bengal Ferries Act", "label": "STATUTE", "start_char": 97, "end_char": 115, "source": "regex", "metadata": {}}, {"text": "s. 24", "label": "PROVISION", "start_char": 123, "end_char": 128, "source": "regex", "metadata": {"linked_statute_text": "Bengal Ferries Act", "statute": "Bengal Ferries Act"}}, {"text": "November 29, 1964", "label": "DATE", "start_char": 659, "end_char": 676, "source": "ner", "metadata": {"in_sentence": "After hearing .of the respondent's complaint on November 29, 1964 the appellant realised double the amount of toll from the respondent."}}, {"text": "sections 23 and 24", "label": "PROVISION", "start_char": 809, "end_char": 827, "source": "regex", "metadata": {"linked_statute_text": "Bengal Ferries Act", "statute": "Bengal Ferries Act"}}, {"text": "Bengal Ferries Act, 1885", "label": "STATUTE", "start_char": 835, "end_char": 859, "source": "regex", "metadata": {}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 1193, "end_char": 1210, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 24", "label": "PROVISION", "start_char": 1254, "end_char": 1259, "source": "regex", "metadata": {"linked_statute_text": "the Bengal Ferries Act, 1885", "statute": "the Bengal Ferries Act, 1885"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 1351, "end_char": 1356, "source": "regex", "metadata": {"linked_statute_text": "the Bengal Ferries Act, 1885", "statute": "the Bengal Ferries Act, 1885"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 1419, "end_char": 1424, "source": "regex", "metadata": {"linked_statute_text": "the Bengal Ferries Act, 1885", "statute": "the Bengal Ferries Act, 1885"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 1623, "end_char": 1628, "source": "regex", "metadata": {"linked_statute_text": "the Bengal Ferries Act, 1885", "statute": "the Bengal Ferries Act, 1885"}}, {"text": "Section 24", "label": "PROVISION", "start_char": 1664, "end_char": 1674, "source": "regex", "metadata": {"linked_statute_text": "the Bengal Ferries Act, 1885", "statute": "the Bengal Ferries Act, 1885"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 2083, "end_char": 2088, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 2657, "end_char": 2662, "source": "regex", "metadata": {"statute": null}}, {"text": "September 13, 1967", "label": "DATE", "start_char": 3006, "end_char": 3024, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated September 13, 1967 of the Calcutta High Court in Criminal Refere, nce No."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3032, "end_char": 3051, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated September 13, 1967 of the Calcutta High Court in Criminal Refere, nce No."}}, {"text": "D. N. Mukherjee", "label": "JUDGE", "start_char": 3094, "end_char": 3109, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for the appellant.", "canonical_name": "D. N. Mukherjee"}}, {"text": "Dua", "label": "JUDGE", "start_char": 3209, "end_char": 3212, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDua, J.\n\nThe appellant, Basudev Hazra, was a leaseholder in respect of tolls of the public ferry at Sadar Ghat on the outskirts of Burdwan town for crossing the river Daroodar."}}, {"text": "Basudev Hazra", "label": "PETITIONER", "start_char": 3233, "end_char": 3246, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDua, J.\n\nThe appellant, Basudev Hazra, was a leaseholder in respect of tolls of the public ferry at Sadar Ghat on the outskirts of Burdwan town for crossing the river Daroodar.", "canonical_name": "BASUDEV HAZRA"}}, {"text": "November 30, 1964", "label": "DATE", "start_char": 3480, "end_char": 3497, "source": "ner", "metadata": {"in_sentence": "On November 30, 1964 Matiar Rahman Manda!"}}, {"text": "Matiar Rahman Manda", "label": "PETITIONER", "start_char": 3498, "end_char": 3517, "source": "ner", "metadata": {"in_sentence": "On November 30, 1964 Matiar Rahman Manda!", "canonical_name": "MATIAR RAHAMAN MANDAL"}}, {"text": "ss. 23 and 24", "label": "PROVISION", "start_char": 4102, "end_char": 4115, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 4249, "end_char": 4254, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 4285, "end_char": 4290, "source": "regex", "metadata": {"statute": null}}, {"text": "Additional Sessions Judge, Burd- F wan", "label": "COURT", "start_char": 4521, "end_char": 4559, "source": "ner", "metadata": {"in_sentence": "On the appellant challenging his conviction on revision in the Court of the Sessioos Judge, the Additional Sessions Judge, Burd- F wan made a roference to the High Court recommending the appellant's acquittal."}}, {"text": "s. 24", "label": "PROVISION", "start_char": 4929, "end_char": 4934, "source": "regex", "metadata": {"statute": null}}, {"text": "s 24", "label": "PROVISION", "start_char": 5503, "end_char": 5507, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 5702, "end_char": 5707, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 5798, "end_char": 5803, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 5986, "end_char": 5991, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 6073, "end_char": 6078, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 6634, "end_char": 6639, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 6874, "end_char": 6879, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 7106, "end_char": 7123, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 24", "label": "PROVISION", "start_char": 7252, "end_char": 7257, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 7351, "end_char": 7359, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "D. N. Mukherjee", "label": "JUDGE", "start_char": 7400, "end_char": 7415, "source": "ner", "metadata": {"in_sentence": "136 of the Constitution and his counsel Mr. D. N. Mukherjee has stremmsly contended that the realisation of 40 ps.", "canonical_name": "D. N. Mukherjee"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 7571, "end_char": 7576, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 7816, "end_char": 7821, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Section 24", "label": "PROVISION", "start_char": 7902, "end_char": 7912, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 8642, "end_char": 8647, "source": "regex", "metadata": {"statute": null}}, {"text": "Mukherjee", "label": "OTHER_PERSON", "start_char": 8654, "end_char": 8663, "source": "ner", "metadata": {"in_sentence": "µnder the pretext of ch1im by way of toll under this Act when it is not legally claimable was not intended by the legislature to be prohibited and made punishable by the language of s. 24, Shri Mukherjee drew our attention to s. 5 of the Act in which \"ferry'' is defined to include a bridge of boats, pontoons or rafts, a swing-bridge, a flying bridge, a temporary bridge and a landing stage."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8686, "end_char": 8690, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 8973, "end_char": 8978, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 9174, "end_char": 9179, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 10064, "end_char": 10069, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10309, "end_char": 10326, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 24", "label": "PROVISION", "start_char": 10438, "end_char": 10443, "source": "regex", "metadata": {"statute": null}}, {"text": "His liability to be prosecuted under the Indian Penal Code", "label": "STATUTE", "start_char": 10501, "end_char": 10559, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 24", "label": "PROVISION", "start_char": 10613, "end_char": 10618, "source": "regex", "metadata": {"linked_statute_text": "His liability to be prosecuted under the Indian Penal Code", "statute": "His liability to be prosecuted under the Indian Penal Code"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 11193, "end_char": 11198, "source": "regex", "metadata": {"linked_statute_text": "His liability to be prosecuted under the Indian Penal Code", "statute": "His liability to be prosecuted under the Indian Penal Code"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 11687, "end_char": 11695, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_483_505_EN", "year": 1971, "text": "UNION OF INDIA\n\nJYOTI PRAKASH MITTER\n\nJanuary 21, 1971\n\n[J. c. SHAH, C.J., s. M. SIKRI, v. BHARGAVA, K. s. HEGDE,\n\nA. N. GROVER AND I. D. DUA, JJ.]\n\nCvnstitution of India, 1950, Arts. 132(1) & 2t1(3)rant of leave to Supreme Court agains~ judgment of single Judge of High Court-When\n\npermissible--Procedure to be followed by President when acting under A'rt. 217(3).\n\nNe.rural Justice-If party effected entitled to personal hearing.\n\nArticle 217(3) of the Constitution incorporated by the 19th Amend ment Act, was given retrospective effect from January 26, 1950, and hence, all questions relating to the age of a Judge of a High Court had to be decided by the President after consultation with the Chief Justice of India. The respondent raised a dispute regalrding his age claiming that his date of birth was December 27, 1904, and not December 27, 1901.\n\nThe Secretary of the Ministry of Home Affairs drew up a note tracing the history of the dispute and invited the President to determine the age of the respondent.\n\nThe note was submitted through the Minister of Home Affairs, and Prime Minister .. The President then called upon the respondent to make such representation as he may wish to make and to produce such evidence as he may desire.\n\nThereafter, all communication to and from the respondent, his representations to the President and documentary evidence on which he relied, were all submitted through the Secretary of the Ministry of Home Affairs.\n\nThe respondent made a request for oral hearing in his various communications.\n\nHe protested against the reference bv the Ministry of Home Affairs to the Director of the Central Forensic Institute of the documents submitted by him and requested that the originals may be returned to him to enable him to have them examined by an independent expert. In reply to that letter the Secretary of Ministry of Home Affairs wrote that the procedure to be followed and the opportunities to be given to the respondent depended entirely upon the discretion of the President and the question of returning the documents produced by the respondent did not arise at that stage.\n\nThe respondent was also informed that the question whether he should have an oppdrtunity of filing expert evidence will be considered later and that he would be given an opportunity to put forward his case about the evidcntiary value of the documents produced by him and that any decision thereon would be arrived at by the President after affording him reasonable opportunity in that behalf.\n\nAfter receiving the report of the Director of the Central Forensic Institute the Pre>ident referred the question to the Chief Justice of India for his advice on the procedure to be adopted and the Chief Justice gave his advice to the President. jfhe copies of the reports of the Director, Central Forensic Institute, Were forwarded by the Home Secretary to the respondent with a forwarding letter by which the respondent was informed that if he bad any comments to make on the opinion expressed by the Director they may be submitted and if the respondent desired he may also adduce evidence in rebuttal in the for; n of expert opinion supported by appropriate affidavits within one\n\nmonth.\n\nThe respondent submitted that the evidence tendered was con- .cl'!sive in his favour. and .there was no question. of adducing any further evidence or any evidence 1n rebuttal.\n\nHe also requested the President to _grant him an audience for the purpose of deciding the question of his age.\n\nThe President then referred the matter to the Chief Justice of India asking him for his advice and the Chief Justice of India, after considering the evidence in the matter, recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901.\n\nThe file relating to the matter was received in the President's Secretariat and was sent to the Secretary, Ministry of Home Affairs.\n\nThe Secretary recorded a note requesting the Minister of Home Affairs, to recommend to the President that the age of the respondent !Ilay be determined in accordance v.itb the advice of the Chief Justice of InCia, and the Home Minister and the Prime Minister countersigned that endorsement.\n\nThe file then was pfaced before the President and on the same day he recorded his decision that he accepted the advice tendered by the Chief Justice of India and decided that the age of the respondent should be determined on the basis that be was born on 27th December 1901.\n\nThe decision was co:nmunicated to the respondent by the Secretary, Ministry of Home Affairs.\n\nThe respondent then moved a writ petition in the High Court and .a single Judge of the High Court allowed the petition on the grounds :\n\n( l) that the function of President was quasi-judicial and be was not , given sufficient time and opportunity to exercise his independent judgment on the question before him; (2) that the President had not given a persona! hearing to the petitioner; (3) that the President had taken , into account extraneous matters viz., the recommendation of the Ho1ne .Minister and the Prime Minister.\n\nThe appellant then BSked for a certificate and a certificate was granted under Art. 132(1) of the Constitution.\n\nJn appeal to this Court,\n\nHELD :\n\n(1) A single Judge of a High Co•Jrt may, in appropriate cases, certify that the case involves a substantial question of la\\v as to the interpretation of the Constitution.\n\nBut suh a certificate is intended to be given in very exceptional cases where a direct appeal is necessary in view of the grave importance of the cose 01 an early decision of the ca.:; e must, in the larger interest of public or for sin1ilar reasons. he reached.\n\nThe present case was not one in which a certificate should have been asked for or granted by the single Judge. Against the deci-; ion of the single Judge, an appeal lay to the Divisional Bench of the High Court under Letters Patent; and, the respondent could not, on the dare of the order be reinstated because he l}ad already passed 62 years of age. [496 G-H; 497 A-Bl\n\n[The n1atter was however examined on merits since the appeal \\VJs before this Court.]\n\n(2) The President in performing the functions under Art. 217(3) is invested with the judicial po\"°'er of great significance \\1, hich has a haring on the independence of judges of the High Courts. ln the exercise H of this power even the slightest suspicion or appearance of misuse of that power Should be avoided.\n\nEven in the mutter of serving nOticcs and asking for representation fro n1a judge of the High Court, \\vhcn question of his age is r<\\isc61] S.C. 1636\n\n(2) [1%5) 2 S.C.R. 5.1.\n\nThis Court held that cl. (3) of Art. 217 having retrospective operation, validity of the order passed by the President must bo adjudged in the light of cl. (3) of Art. 217 and since the Ministry of Home Affairs had placed the file before the President in accordance with the rules of business, the procedure could not be assimilated to the requirements of Art. 217 ( 3) . The Court observed:\n\n\"The question concerning the age of the appellant (respondent herein) on which a decision was Teached by the President on May 15, 1961, affects the appellant in a very serious manner; and so, we think considerations of natural justice and fair-play require that before this question is determined by the President, the appellant should be given a chance to adduce his evidence.\n\nThat is why we think that, on the whole, it would not be possible to accept the Attorney-General's contention that the order passed by the President on May 15, 1961, can be treated as a decision within the meaning of Art. 217(3). We ought to make it clear that in dealing with the grievance of the appellant that his evidence was not before the President at the relevant time, we are not prepared to hold that his failure or refusal to produce evidence at that stage should be judged in the light of the retrospective operation of Art. 217 ( 3). such a consideration would be totally inconsistent with the concept of fair-play and natural justice which out to govern the enquiry contemplated b~· Art. 217 (3);\"\n\nand that:\n\n\"The appellant has contended before us that if we hold that the impugned decision of the President does not amount to a decision under Art. 217 (3). he is entitled to have a formal decision of the President in terms of the said provision. The Attorney-General has conceded that this contention of the appellant is well founded.\n\nHe, therefore. stated to us on behalf of the Union of India that in case our decision on the main point is rendered against the Union of India, the Union of India will place the matter before the President within a fortnight after the pronouncement of our judgment inviting him to decide the question about the appellant's age under Art. 217 ( 3). Hoth parties have agreed before us that in case the decision of the President is in favour of the appellant, the appellant will be entitled to claim that he has continued to be a Judge notwithstanding the order passed by the Chief Justice of the Calcutta High Court\n\nand will continue to be a Judge until he attains the age of superannuation.\"\n\nThereafter the President of India directed the Secretary.\n\nMinistry of Home Affairs, to call upon the respondent to \"make such representation as he may wish to make in the matter and , produce such evidence as he may desire to produce in support of his claim that his correct age should be determined on the basis of his date ofbirth being taken as December 27, 1904\", and after consulting the Chief Justice of India by order dated September 29, 1965, determined the date of birth of the respondent as December 27, 1901.\n\nThe legality of the procedure followed by the President in making the order is challenged by the respondent. It is, therefore, necessary to set out in some detail the various steps taken before passing that order. On November 17; 1964 the Secretary of the w:nistry of Home Affairs drew up a note tracing the history of the\n\nligation upto the decision of this Court, and invited the President to determine the age of the respondent under Art. 217 ( 3). The note of the Secretary was submitted to the President through the Minister of Home Affairs and the Prime Minister. On November 21, 1964 the Presidl)t signed an order calling upon the respondent to make such representation as he may wish to make in the matter and to produce such evidence as he may d(!sire. The respondent submitted h:s representation on December 7, 1964 .and annexed therewith photostat copjes of two documents an almanac and a horoscope on which he relied and certain affidavits. By his forwarding letter the respondent prayed for an oral hearing before the President to e.nable him \"to adduce his evidence and to produce in original the documents in the Annexures and to make submissions in support of his ca>e\". The respondent repeated his request for oral hearing by a letter addressed to the Secretary to the President on !he same day. On December 9, 1964 the Secretary to the Ministry of Home Affairs wrote to the respondent asking him to send the original documents copies of which were annexures to his representation to enable him-the Secretary to place them before the President.\n\nOn the same date, the Secretary to the Ministry of Home Affairs also supplied to the respondent a copy of his note dated November 17, 1964, seeking the determination of the President, and copy of the President's directive dated November 21, 1964. After receiving the copies the respondent by letter dated December 10, 1964 submitted an additional representation. On the same date the respondent submitted to the Secretary, Ministry of Home Affairs, docume!lots in original relied upon by him in his representation. On December 14, 1964 the respondent addressed a letter to the Secretary to the President, forwarding a copy of his additional representation, with\n\nA a request that representation together with the original documents, which he had handed over to the Ministry of Home Affairs, be calkd for from that Ministry and be placed before the President.\n\nOn December 21, 1964 the Secretary, Ministry of Home Affairs sent a reply to the letter directing the respondent to send all the evidence that he desired to rely upon and informing him that no B oral evidence of witnesses will be received, the respondent being free to submit affidavits of witnesses. Referring to his request for personal hearing it was stated in the letter that the J:>resident will decide after considering the evidence produced by the respondent whether any personal hearing would be necessary, and that \"should he decide that you should be heard in person, you will be inc formed in due course\". On December 31, 1964 the originals of the horoscope and the almanac submitted by the respondent were sent to the Director of the Central Forensic Institute, Calcutta by the Ministry of Home Affairs with the request that the hori>scope and the entry in ink in the margin of the almanac be examined \"with. a view to determine its genuineness with particular reference D to the age of the paper on which the horoscope had been prepared; the age of the ink used; and the age of the writing ''with a similar\n\nrepryrt as to the genuineness of the entry in ink in the alman3c.\n\nOn January 4, 1965 the respondent submitted four additional affidavits including his own affidavit affim1ing that the writing on the margin of the almanac against the date 12 Paus, 1311 B.S .. was that of his maternal uncle. Jadunath Bose. who had died \\\\hen E he the respondent was a student of Oxford. By his letter dated February 3, 1965 addressed to the Secretary. Ministry of Home Affairs, the respondent protested against the reference of the documents to the expert. contending that the documents were obtained from him on the representation that they \"were required to bC placed before the President\".\n\nThe respondent demanded that ·; .\n\nF he be supplied a copy of the order of the President by which such reference to the expert had been made and also copies of the correspondence between the Home Ministry aru:t the forensic expert.\n\nHe also requested that the originals of the documents be returned to him so that he might have them ellamined b~· an independent expert. who would, after his examination. give evid- G ence as to his opinion. by ffidavit or otherwise. Jn reply 10 that letter, the Secretary. Mm1stry of Home Affairs wrote that the procedure to be followed and the opportunities to be given to the respondent depended entirely upon the discietion of the President and the question of re!urig the documents produced by the rs\n\nponent bef?re deten!itnatton of the matter. pending before the H resident, did not ans~ at that sta)?e, The respondent was also\n\nmfo;1~1ed that the ucstmn hether he should have an opportunity of filmg .expert evidence will be considered in due course.\n\nHe was also informed that the respondent will be given an opportun:ty 2-918 Sur. c I 71\n\nto put forward his case about the evidentiary value of the document\\ produced by him and any decision thereon would be arrived at b\\' the President after affording him reasonable opportunities in\n\nthat behalf.\n\nThere was some correspondence between the Director of the Central Forensic Institute, Calcutta and the Ministry . of Home Affairs.\n\nThi: Commandant of the Iristitute opined that it was \"extremely difficult to solve dating problems in a completely satisfactory manner\". He initially sought instructions whether he was at liberty to deface or mutilate the documents, because the\n\n\"test required :could not be made without extracting parts of the documents, but later wrote that the mutilation of documents by the chemical test was not desirable and moreover that by such application it would not be possible to give an absolute date to the document.\n\nThereafter the Director reported on a \"limited examination\" that could be carried out that it was not possible to give any opinion relating to the age of the ink writing on the almanac\", but in his view the horoscope could not have been written earlier than 1909, because the paper on which it was written c, mtained bamboo pulp which was not brought into the use by the Titaghur Mills in the manufacture of paper before 1912.\n\nThe Director said nothing about the age of the ink in which the horoscope had been written.\n\nAJter consultations between the Ministry of Home Affairs and the :\\!inistry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 and 1959, and requested the Director :a determine the age of the writing of the disputed horoscope and marginal note in the almanac by comparison. The Director on . .\\pri! 17, 1965 wrote that it \"was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not mad~ with the same ink on similar paper and not 'stored under the same conditions as the docume, nts under examination\", and that it \"will not be possible for a document expert. however reputed he might be, anywhere in the world, to give any definite opinion on the probable date of the horoscope and the ink writing in the margin of the almanac\"\n\nAfter receiving the second report from the Director, the Ministry of Law raised the question about the opportunity to be given to the respondent before the President in the enquiry for determinin.z the age of the respondent under Art. 217(3). It was then decided to refer the question to the Chief Justice of India for his advice. On July 24, 1965 the Chief Justice of India advised the President about the procedure to be adopted in the determination of the age of the respondent.\n\nThereafter pursuant to a\n\nUNION V. J. P. MITTER (Slzah, C.J,) ' 493\n\nsuggestion made by the Law MiniHer , \" , .,, L .ry o~ . Home Affairs wrote to the respondent on July 31, 1965 reqwnng him to state the date or year of the horoscope.\n\nThe respondent by his letter dated August 4, 1965, stated that it was not possible for him to give definitely the date or year of the horoscope but he asserted that it was at least in existence in the year 1921 when it was consulted on the occasion of his marriage. On February 23, 1965 the respondent addressed a telegram to the President requesting that an early decision of the question of his age may be reached. On March 15, 1965 he addressed another telegram to the President requesting leave to produce other documentary evidence which he claimed may be available in East Pakistan,\n\nbut sometime thereafter he informed the Secretary, Ministry of Home Affairs, that owing to lack of co-operation on the part of the people in East Pakistan it was not possible to get the evidence which was mentioned in his letter to the President and that he must content himself with the evidence he bad already produced and which in his view was \"overwhelming\". He furthei: stated :\n\n\"You can, therefore, take it that I have no further evidence to P.roduce on the subject of my age, unless I am driven to call an expert or experts as indicated by me in my letter to you, dated 3rd February, 1965\".\n\nOn August 13, 1965, copies of the reports of the Director of the Forensic Science Laboratory were forwarded by the Home Secretary to the respondent with a forwarding letter by which the respondent was informed that if he had any comments to make on the opinion expressed by the Director they may be submitted and that if the respondent desired he m8y also adduce evidence in rebuttal in the form of expert opinion supported by proper affidavit, and that the commen1s, evidence and affidavits, if any, may be sent within one month of the letter. On receipt of the letter of the Home Secretary the respondent sent a telegram addressed to the Home Secretary on September 1, 1965, praying that the President may call for all papers and documents, if not already sent for and grant him an audience, \"If at all necessary''. The respondent also wrote a letter 011 that day submitting that the evidence tendered by him was \"conclusive\" and there was no question of adducing any further evidence or any evidence in rebuttal. He also submitted that the entry in the Bihar and Orissa Gazette (de\" claring him successful at the matriculation examination) was erroneous and concluded the letter that all relevant documents be placed before the President, and that the President \"may be graciously pleased to grant \"him\" an audience for the purpose of deciding the question of his age\"\n\nThe file of the respondent's case was then submitted to the President.\n\nOn September 16, 1965 the President referred the\n\nmatter to the Chief Justice of India asking him for his advice. On September 28, 1965 the Chief Justice recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901.\n\nThe Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Director of the Central Forensic Science Laboratory, Calcutta bearing on the dispute as to 'the true date of birth of the respondent. The Chief Justice of India thereafter observed :\n\n\" ........ the question which the President has to .decide is whether the date of Mr. Milter's birth mentioned\n\non the occasions when he appeared for the Matriculation Examination as well as for the Indian Civil Service Examination. is incorrect; and that would naturally turn upon whether it is shown that the entry in ink on the margin of the almanac showing that Mr. Mitter was born on 27-12-1904, was contemporaneously made and is correct as alleged by him. The horoscop.~ on which Mr. Mittet relies, refers to the date and time of his birth, but that dos not help Mr. Mitter very much, because it is obviously based upon information given to J yotish-Sastri Shri J ogesh Chandra Deba Sarma on the basis of the entry in the almanac. I have carefully considered the reports made by Dr. Iyengar. the comments on them made by Mr. Mitter, the affidavits on which Mr.\n\nMitter relies, and the almanac and the horoscop.~ on which he bases his case. I have also taken into account all the other relevant facts. relating to the pL>r history of this dispute, the conduct of Mr. Mitter, the grounds\n\non which he challenged the earlier orders passed in this matter, and I have come to the conclusion that it is not shown satisfactorily that the entry in ink on the margin of the almanac was made contemporaneously and is correct as alleged by Mr. Mitter. 1 am, therefore, unable to accept his case that the date of his birth which was shown at the ti.me when he appeared for the Matriculation Examination as well as.for the T.C.S. Examination \"was exagerated\".\n\nI would, therefore. advised the President to hold that Mr. Mitter has failed to show that he was born on 27-12-1904 and not on 27-12-1901; and that the question about his age should be decided on the bash that he was born on 27-12-1901\".\n\nThe file containing the advice was then returned to the Pre- ral hearing and since he did not do so the order was liable to be declared invalid; that in any case the respondent had requested on several occasions that an opportunity be given to him of an oral hearing before deciding the case and that the case was otherwise one in which an oral hearing should have been given; that the executive was closely associated with the President in makins\n\nthe order, since the notice to the respondent was issued through the Ministry of Home Affairs, and the papers were sent by the Chief Justice of India to the President but were diverted by the Secretary to the President to the Ministry of Home Affairs and after they were received with the advice of the Chief Justice of India they were considered by the Minister of Home Affairs and the Prime Minister and it was only after they assented to the advice of the Chief Justice of India that the papers were submitted to the President and that the part played \"by the Chief Jus, tice of India was contrary to all principles of natural justice\".\n\nWe do not propose to deal with 1those contentions in the sequence in which they were urged before us for many of those contentions overlap. It is true that the notice requiring the respondent to show cause was issued pursuant to the papers being submitted to the President and the notice was in fact sent by the Secretllry to the Ministiy of Hoine Affairs. But we do not think that because the President was assisted by the machinery of the Ministry of Home Affairs in serving notices, and receiving communications addressed by him it can be inferred that he was guided by that Ministry. Apparently no rules have been framed regarding the enquiry to be made by the President of India under Art. 217 (3). This was the first case which arose in which the question of age of a, Judge of the High Court had to be decided. The Preside!}! has no secretarial facilities for serving notices and for taking other steps in regard to enquiries to be made under Art. 217\n\n(3)\n\nAfter the Chief Justice of India sent the file of papers with his advice to the President, the papers were not immediately submitted to the President but were sent to the Ministry of Home Affairs.\n\nThe Secretary recorded a note requesting the Minister of Home Affairs to recommena to the President that the age of the res- F pondent may be determined in accordance with the advice of the Chief Justice of India. The Minister for Home Affairs and then the Prime Minister placed their initials below the note. There is nothing in the order that the Minister for Home Affairs acted upon the request made by the Secretary; he merely countersigned the papers and sent them to the Prime Minister who also counter- G signed the note, The argument that the Home Minister and the Ptime Minister signified their assen1 and thereafter the President acted as if he y.ias exercising the executive authority on the advice of his Minil>ters has no force. There is no reason to think that the Minister for Horne Affairs or th.e Prime Minister acted in pursuance of the request made by the Secretary. There is again nothing H in the order of the President which may suggest that he was swayed bv anything which the Secretary to the Ministry of Home Affairs\n\nhad rioted or by the sig9atures of the Minister for Home Affairs\n\n,..\n\n- }\n\nA or the Prime Minister. The terms of the order of the President are clear : they show that the President was acting on the advice of the Chief Justice of India and that he decided the age -0f the respondent on that basis. Any irregularity in the procedure followed by the Secretary to the President and the Secretary, Ministry of Home Affairs, in sending. the . P.apers t.hrough the B Minister of Home Affairs and the Prune M1mster as if the matter dealt with was executive in character, does not, in our judgment. affect the validity of the order made by th~ .President or vitiate. it on the ground that he was guided by the Mm1ster for Home Affairs or by the Prime Minister.\n\nThe argument that there was no consult.ation bet\"\".een the Chief Jm; tice of India and the President is also without substance. Consultation contemplated by the Constitution is not a dialogue.\n\nUnder Art. 217(3) the President is required to consult the Chief Justice of India before determining the question as to the age of a .\n\nJudge of the High Court. The President must before deciding the age of a Judge under Art. 217 (3) obtain the advice of the Chief Justice of India. For obtaining that advice the President undoubtedly must make available all the evidence in his possession to the Chief Justice of India. The Chief Justice has to submit his advice to the President on thrt evidence. It is not a condition of the validity of the decision by the President that the President and the Chief Justice should meet and discuss across a table the .pros and cons of the proposed aC'tion, or the value to be attached to any piece of evidence laid before the President and made available to the Chief Justice. The procedure followed in the present case of\n\nsendig to the Chief Justice of India the file of papers relating to the evidence against the respondent and in his favour, and of obtaining his advice fully complied with the constitutional requirements as to consultation with the Chief Justice of India when he rendered his advice to the President.\n\nThe President had given ample opportunities at diverse stages to the respondnt to make his representation. All evidence placed before the President when he considered the question as to the age\n\no~ the respondent :vas disclosed to him and he---respondent-was\n\n~1ven n opportunity to make his representation thereon. There 1s nothing 1.11 ~I. ~3) of Art. 217 which requires that the Judge whoe age 1s m d1spte, should .be given a. personal hearing by the\n\nPresdet. 1:'te Pes1dent may m appropnate cases in the exercise of us discretion give to the Judge concerned an oral hearing but e 1s not bound t-0 do so. An order made by the President which is declared final by cl. (3) of Art. 217 is not invalid merely because no oral hearing was given by the President to the Jude concerned: . An ?PPOrtunity to make representation to the Judge, after appnsmg him of the evidence which was likely to be used\n\nagainst him and consideration of the representation and the evidence comply with the requirements of Art. 217 (3). The respondent it is true did make requests that the President should give him an oral hearing. The respondent claims that his request was granted and he remained under an impression that he would be given an oral hearing, and the order made without granting him an opportunity of an oral representation was contrary to the rules of natural justice. By his representation dated December 7, 1964, the respondent had requested that he be given an oral hearing be fore the President .and an opportunity to adduce his evidence and to produce in original the documents, viz. an almanac and a horoscope, and to make submission in support of his case. He repeated that request in the letter addressed to the Secretary to 1he President also on the same day. In reply thereto by letter dated Deeember 21, 1964, the Secretary to the Ministry of Home Affairs 'informed the respondent that no oral evidnce of witnesses would be received but the respondent was free to submit the affidavits of witnesses as he relied upon.\n\nRegarding his request for the per- scinal hearing the respondent was informed that the President will decide after considering the evidence whetl.er any personal hear- 'ing was necessary. He was also informed that should the President decide that the respondent should be heard in person, he will be informed in due course.\n\nAgain in reply to the letter written by the respondent on January 4, 1965, the Secretary to the Ministry of Horne Affairs informed the respondent that the procedure to be followed and the opportunities to be given to the respondent were entirely to depend upon the direction of the President and the respondent will be given an opportunity to put forward his case.about the evidentiary value of the documents produced by him. and any decision thereon would be .arrived at by the President after affording him reasonable opportunities in that behalf. By his letter dated April 28, 1965, to the Secretary. Ministry of Home Affairs. the respondent stated that he had no further evidence to produce on the subject of his age, beside the :evidence. he had already duced. By his telegram dated September 1, 1965, the respondent requested the President to send for the papers and documents, if not already sent for, and to grant him an audience \"if at all necessary\". But in his letter addressed to the Secretary of the Ministry of Home Affairs on the same day be stated that all the , papers may be placed before the President and the Presidem may be \"pleased to rant an audience for tbe purpose of deciding the .question of his age.\"\n\nArticle 217 ( 3) does not guarantee a right of personal bearing.\n\nH In a proceedin!! of a judicial nature, the basic rules of natural justice must be followed. 'f?e responet was on .that ccoun~ e~ titled to make a representation. But I! JS not _11ecessarily an met-\n\n..;:.-\n\nH +\n\nUNION v. J. P. MITTllR (Shah, C.J.) 501\n\ndent of the rules of natural justice that personal hearing must be given to a party likely to be affected by the order. Except in proceedings in Courts, a mere denial of opportunity of making an oral representation will not, without more, vitiate the proceeding.\n\nA party likely to be affected by a decision is entitled to know the evidence against him, and to have an opportunity of making a representation. He however cannot claim that an order made without affording. him an opportunity of a personal hearing is invalid.\n\nThe }'resident is performing a judicial function when he determines a dispute as to the age of a Judge, but he is not constituted by the Constitution a Court. Whether in a given case the , President should give a personal hearing is for him to decide. The question is left to the discretion of the President to decide whether an oral hearing should be given to the Judge concemed. The record amply supports the view that the President did not deem it necessary to give an oral hearing. There were no complicated questions to be decided by the President. On the one hand there was the evidence of the matriculation certificate and the representation made' by the respondent before the Board of Commissioners in the United Kingdom when the respondent submitted himself for being admitted to the Indian Civil Service Examination. On the other hand there was the evidence of the assertion made by the respondent that he was born on Decemlnr 27, 1904, which was sought to be supported by the almanac with an entry in the margin, a horoscope, an affidavit of Panchkari Banerjee, Secretary to the then Chief Justice Sir Arthur Trevor Harries in which it was stated that the question about the age of the respondent was discussed with the Chief Justice. The trnth of the statements made by the respondent had m be judged in the light of his conduct, that he gave no evidence of the date of his birth when he was appointed permanent Judge of the High Court, nor when in 1960 opportunity was given to him to furnish material in support of his contention regarding his age. If upon this evidence the President was of the view that the disputed question may be decided without giving an opportunity of personal hearing, this Court cannot set aside the order on the ground that the order was made without following the rules of natural justice.\n\nIt was urged that the President left India ia the afternoon of September 29, 1965 on a tour of East European countries and that ; he had not sufficient time to consider the advice tendered by the ·\n\nChief Justice of India and of going through all the evidence which was placed before him and of giving any judicial consideration to the matter before him. Having regard to the \"strict-time-table\" which was required to be observed, it was urged that the President treated the matter as formal, and guided by the advice of the Home Minister and the Prime Minister he mechanically accepted\n\nthe advice of the Chief Justice of India and surrendered his own judgment to the judgment of the Chief Justice of India. But on this part of the case there is no reliable evidence. No such ground was raised in the High Court. In this Court in the affidavit in reply filed by the respondent on February 24, 1967 in answer to the additional affidavit of the Union of India the respondent stated two new grounds (I) that the Chief Justice of India had privately advised the Ministry of Home Affairs as to the conduct of the enquiry or reference under Art. 217 ( 3) ot the Constitution and he was on that account disentitled to tender advice to, or to be consulted by, the President under Art. 217 (3 ), and that the \"part\n\nplayed by the Chief Justice of India relative to the reference was against all principles of natural. justice and fair play and vitiated his own purported advice to the President as well as the purported decision of the President rendering the purported decision a nullity\"; and (2) that \"the President of India left New Delhi shortly after noon on September 29, 1965, on a tour of East European countries and Ethopia and that shortly before his departure a relative to the said reference was placed before him for his signature in token of his purported decision as to \"the respondent's age with the recommendation of the Prime Minister and the Home Minister to determine the age of the respondent in accordance with the advice of the Chief Justice of India\" He annexed thereto a copy of the daily edition of the Statesman dated September 30,\n\n1965, evidencing the departure of the President as aforesaid and his purported decision as to the question of the age of the respondent before his departure for Europe. But no attempt was made to have the matter investigated in the High Court as to when the papers were submitted to the President and what consideration he gave to the advice, whether he made only a mechanical approach believing that he was bound to accept the advice of his Ministers.\n\nThese are matters which cannot be convassed for the first time in this Court.\n\nOn the plea that the Chief Justice of India had improperly advised the Minister of Home Affairs as to the conduct of enquiry and the reference, and on that account he had disentitled himself to tender any advice to the President also no allegation was made in the petition and no argument was rais.ed in the High Court. There is no evidence that beside tendering advice to the President in matters of procedure and the final decision, the Chief Justice of India had given any advice to the Ministry of Home Affairs privately or otherwise. The argument that the Chief Justice of India in tendering the advice was influenced by extraneous considerations is not founded upon any materials placed before this Court and must be rejected.\n\nThe respondent invited our attention to a judgment of the Judicial Committee in B. Surinder Singh Kanda v. Government\n\nUNIOl' I'. J. P. MITTER (Shah, C.J.) 503\n\nof the Federation of Malaya. ( 1). In that case the Commissioner of Police Malaya passed an ordor dismissing one Kanda, an Inspector of Police, on the ground that at an inquiry before an adjudicating officer Kanda was found guilty of failing to disclose evidence at a criminal trial.\n\nKanda contended that after the coming into force of the Constitution of Malaya that power was only in the Police Service Commission, to which the Commissioner was a subordinate authority and that failure to supply him a copy of the report of the board of inquiry which contained matters highly prejudicial to him and which had b!en sent to and read by the adjudicating officer before he sat to inquire into the charge, amounted to a failure to afford the appdlant Kanda \"a reasonable opportunity of being heard\", in answer to the charge within the meaning of article 135 ( 2) of the Constitution of Malaya and to a denial of natural justice.\n\nLord Denning who delivered the judgment of the Judicial Committe~ considered the question whether the hearing by the adjudicating officer was vitiated because that officer was furnished with the report without inspector Kanda being given any opportunity of correcting or contradicting it. Before the High Court of Malaya the question posed was whther there was a real likelihood of bias, that is \"an operative prejudice, whether conscious or unconscious\" on the part of the adjudicating officer. The Court of Appeal held that there was no likelihood of bias. In the opinion of Lord Denning however the proper approach to the case was different. \"The rule against bias is one thing. The right to be heard is another.\n\nThose two rules are the essential characteristics of what is often called natural justice. They are the 'twin pillars supporting it. . . .\n\nBut they are separate concepts and are governed by separate considerations.\n\nIn the present case Inspector Kanda complained of a breach of th.e second. He said that his constitutional right had been infringed.\n\nHe had been dismissed without being given a reasonable opportunity of being heard.\n\nIf the right to be heard is to be a real right which is 11<>rth dnything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him : and then he must be given a fair opportunity to correct or contradict them. . . . . It folJoM. of course, that the Judge or whoever has to adjudicate must not hear evidence or\" receive reprsentations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into 'the likelihood of prejudice.\n\nThe risk of it is enough. No one who has lost a case will believe\n\n(!) [1962] A.C. 322.\n\nhe has been fairly treated if the other side has had access to the Judge without his knowing''.\n\nRelying upon the observation the respondent contended that a likelihood of prejudice is sufficient to vitiate the proceedings.\n\nBut in this case we do not think that there was any likelihood of bias or of prejudice. All evidence which the President had to consider had been placed before him at diverse stages. When the notice to show cause was issued, the President had prima facie material before him.\n\nThereafter certain other evidence was 'collected and that was also placed before the President. It is not suggested that any evidence against the respondent was not disclosed to .him. The prineipal argument raised by the respondent was that the President himself did not determine the que5tion relating to the age of the respondent because he surrendered his judgment to the Chief Justice of India or that he was persuaded to reach his conclusion only because the Home Minister and the Prime Minister had countersigned the notation made by the Secretary of the Ministry of Home Affairs. We do not think that the President had heard any evidence or received any representation from one side behind the back of the other. If he had done so the question whether any representation was made which worked to the prejudice of the respondent would arise. The Court will not then consider the question whether the representation had in fact worked to his prejudice. A reasonable possibility may be sufficient. In the present case ho evidence was placed before tbe President or considered by him which was not disclosed to the respondent. The principle in B. Surinder Singh Kanda' s case (1) has therefore no application.\n\nIt is necessary to observe that the President in whose name all executive functions of the Union are performed is by Art. 217\n\n(3) invested with judicial power of great significane which has bearing on the independence of the Judg.es ?f the higher. Curts.\n\nThe President is by Art. 7 4 of the Constitution the conslttuttonal head who acts on the advice of th& Council of Ministers in the exercise of his functions. Having regard to the vecy grave consequences resulting from even the initiation of an enquiry relating to the age of a Judge, our Constitution .makers have thougt it necessary to invest the power in the President. In the exercise of this power if democratic institutions are to take root in our country, even the slightest suspicion or appearance of misuse of that power should be avoided. Otherwise independence of the --judiciary is likely to be grvely perilled. '!le recommend tat even in the matter of servmg notice and askmg for representation from Judge of the High Court where a question, as to his age is raised. the President's Secretariat should ordinarily be the channel,\n\n(I) [I ~62] A.C. 322.\n\nJlf\n\nthat the President should have consultation with the Chief Justice of India as required by the Constitution and that there must be no interposition of any other body or authority, in the consultation between the President and the Chief Justice of India. Again we are of the view that normally an opportunity for an oral hearing should be given to. the Judge whose age is in question, and the question should be decided by the President on consideration of such materials as may be placed by the Judge conc-.!med and the evidence against him after the same is disclosed to him. The President acting under Art. 217 ( 3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court ha• jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed, or that the President's judgment was coloured by the advice or representation made by the executive or it was founded on no evidence. But this Court will not sit in appeal over the judgment of the President, nor will the Courts determine the weight which should be attached to the evidence.\n\nAppreciation of evidence is entirely left to the President and it is not for the Courts to hold that on the evidence placed before the President on which the conclusion is founded, if they were called upon to decide the case they would have reached some other conclusion.\n\nThe appeal is allowed. Having regard however to the circum-- stances of the case, we direct that there will be no order as to costs.\n\nY.P.\n\nAppeal allowed~", "total_entities": 140, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "JYOTI PRAKASH MITTER", "label": "RESPONDENT", "start_char": 16, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "JYOTI PRAKASH MITTER", "offset_not_found": false}}, {"text": "January 21, 1971", "label": "DATE", "start_char": 38, "end_char": 54, "source": "ner", "metadata": {"in_sentence": "UNION OF INDIA\n\nJYOTI PRAKASH MITTER\n\nJanuary 21, 1971\n\n[J. c. SHAH, C.J., s. M. SIKRI, v. BHARGAVA, K. s. HEGDE,\n\nA. N. GROVER AND I. D. DUA, JJ.]"}}, {"text": "c. SHAH, C.J.", "label": "JUDGE", "start_char": 60, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "s. M. SIKRI", "label": "JUDGE", "start_char": 75, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "v. BHARGAVA", "label": "JUDGE", "start_char": 88, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "K. s. HEGDE", "label": "JUDGE", "start_char": 101, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 115, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "I. D. DUA, JJ.", "label": "JUDGE", "start_char": 132, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Arts. 132(1) & 2", "label": "PROVISION", "start_char": 178, "end_char": 194, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 217(3)", "label": "PROVISION", "start_char": 433, "end_char": 447, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 715, "end_char": 720, "source": "ner", "metadata": {"in_sentence": "Article 217(3) of the Constitution incorporated by the 19th Amend ment Act, was given retrospective effect from January 26, 1950, and hence, all questions relating to the age of a Judge of a High Court had to be decided by the President after consultation with the Chief Justice of India."}}, {"text": "Central Forensic Institute", "label": "ORG", "start_char": 1631, "end_char": 1657, "source": "ner", "metadata": {"in_sentence": "He protested against the reference bv the Ministry of Home Affairs to the Director of the Central Forensic Institute of the documents submitted by him and requested that the originals may be returned to him to enable him to have them examined by an independent expert."}}, {"text": "Ministry of Home Affairs", "label": "ORG", "start_char": 1851, "end_char": 1875, "source": "ner", "metadata": {"in_sentence": "In reply to that letter the Secretary of Ministry of Home Affairs wrote that the procedure to be followed and the opportunities to be given to the respondent depended entirely upon the discretion of the President and the question of returning the documents produced by the respondent did not arise at that stage."}}, {"text": "December 27, 1901", "label": "DATE", "start_char": 3770, "end_char": 3787, "source": "ner", "metadata": {"in_sentence": "The President then referred the matter to the Chief Justice of India asking him for his advice and the Chief Justice of India, after considering the evidence in the matter, recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901."}}, {"text": "27th December 1901", "label": "DATE", "start_char": 4471, "end_char": 4489, "source": "ner", "metadata": {"in_sentence": "The file then was pfaced before the President and on the same day he recorded his decision that he accepted the advice tendered by the Chief Justice of India and decided that the age of the respondent should be determined on the basis that be was born on 27th December 1901."}}, {"text": "Art. 132(1)", "label": "PROVISION", "start_char": 5192, "end_char": 5203, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217(3)", "label": "PROVISION", "start_char": 6206, "end_char": 6217, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217(3)", "label": "PROVISION", "start_char": 9590, "end_char": 9601, "source": "regex", "metadata": {"statute": null}}, {"text": "Ministry of ome. Affairs", "label": "ORG", "start_char": 13265, "end_char": 13289, "source": "ner", "metadata": {"in_sentence": "sidcnt in matters of procedure and final decision the Chief Justice of G India had given any advice to the Ministry of ome."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 13617, "end_char": 13636, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and order dated August 7, 8, 1967 of the Calcutta High Court in Civil Rule No."}}, {"text": "Jagadish Swarup", "label": "LAWYER", "start_char": 13673, "end_char": 13688, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-General, Ram Panjwani and S. P.\n\nNayar, for the appellant."}}, {"text": "Ram Panjwani", "label": "LAWYER", "start_char": 13709, "end_char": 13721, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-General, Ram Panjwani and S. P.\n\nNayar, for the appellant."}}, {"text": "S. P.\n\nNayar", "label": "LAWYER", "start_char": 13726, "end_char": 13738, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-General, Ram Panjwani and S. P.\n\nNayar, for the appellant."}}, {"text": "Shah", "label": "JUDGE", "start_char": 13840, "end_char": 13844, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Cqurt was delivered by\n\nShah, C. J. Joyti Prakash Mitter-hereinafter called 'the respondent-was a candidate for the matriculation certificate exa mination of the Bihar University, held in April, 1918."}}, {"text": "C. J. Joyti Prakash Mitter", "label": "JUDGE", "start_char": 13846, "end_char": 13872, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Cqurt was delivered by\n\nShah, C. J. Joyti Prakash Mitter-hereinafter called 'the respondent-was a candidate for the matriculation certificate exa mination of the Bihar University, held in April, 1918."}}, {"text": "High Court Bar at Calcutta", "label": "COURT", "start_char": 14415, "end_char": 14441, "source": "ner", "metadata": {"in_sentence": "The respondent joined the High Court Bar at Calcutta in May 1931."}}, {"text": "February 11, 1949", "label": "DATE", "start_char": 14459, "end_char": 14476, "source": "ner", "metadata": {"in_sentence": "On February 11, 1949 the respondent was appointed an Additional Judge .and on December 26, 1949 he was recommended for appointment as a permanent Judge."}}, {"text": "December 26, 1949", "label": "DATE", "start_char": 14534, "end_char": 14551, "source": "ner", "metadata": {"in_sentence": "On February 11, 1949 the respondent was appointed an Additional Judge .and on December 26, 1949 he was recommended for appointment as a permanent Judge."}}, {"text": "Government of India", "label": "ORG", "start_char": 14669, "end_char": 14688, "source": "ner", "metadata": {"in_sentence": "In 1956 the Government of India collected information relating to the educational and other qualifications of the Judges of the High Courts and their respective dates of birth."}}, {"text": "April 17, 1959", "label": "DATE", "start_char": 15080, "end_char": 15094, "source": "ner", "metadata": {"in_sentence": "On April 17, 1959 the Chief Justice of the High Court of Calcutta asked the respondent to make a formal statement relating to his date of birth."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 15120, "end_char": 15142, "source": "ner", "metadata": {"in_sentence": "On April 17, 1959 the Chief Justice of the High Court of Calcutta asked the respondent to make a formal statement relating to his date of birth."}}, {"text": "May 27, 1959", "label": "DATE", "start_char": 15225, "end_char": 15237, "source": "ner", "metadata": {"in_sentence": "On May 27, 1959 the responden\\ wrote to the Chief Justice of the High Court, Calcutta that his age entered in the matriculation certificate was incorrect, and that he was shown to be three years older than he actually was, because a true delaration of his age would have prevanted him from appearing for the matriculation examination in 1918."}}, {"text": "High Court, Calcutta", "label": "COURT", "start_char": 15287, "end_char": 15307, "source": "ner", "metadata": {"in_sentence": "On May 27, 1959 the responden\\ wrote to the Chief Justice of the High Court, Calcutta that his age entered in the matriculation certificate was incorrect, and that he was shown to be three years older than he actually was, because a true delaration of his age would have prevanted him from appearing for the matriculation examination in 1918."}}, {"text": "Panchakari Banerjee", "label": "OTHER_PERSON", "start_char": 15615, "end_char": 15634, "source": "ner", "metadata": {"in_sentence": "The respondent also tendered an affidavit of one Panchakari Banerjee that the question of his age was discussed with Sir Arthur Trevor Harries who was in 1949 the Chief Justice of the High Court of Calcutta.", "canonical_name": "Panchakari Banerjee"}}, {"text": "Arthur Trevor Harries", "label": "JUDGE", "start_char": 15687, "end_char": 15708, "source": "ner", "metadata": {"in_sentence": "The respondent also tendered an affidavit of one Panchakari Banerjee that the question of his age was discussed with Sir Arthur Trevor Harries who was in 1949 the Chief Justice of the High Court of Calcutta.", "canonical_name": "Arthur Trevor Harries"}}, {"text": "High Court of Punjab at Delhi", "label": "COURT", "start_char": 16372, "end_char": 16401, "source": "ner", "metadata": {"in_sentence": "The respondent then moved a petition in the High Court of Punjab at Delhi for a declaration that he was entitled to hold office till December 27, 1964 and for a writ of mandamus restraining the Union of India from giving effect to the order of the President."}}, {"text": "January 2, 1962", "label": "DATE", "start_char": 16657, "end_char": 16672, "source": "ner", "metadata": {"in_sentence": "The respondent then filed a petition on January 2, 1962 in the High Court of Calcutta impleading the Chief Justice of the Court of Calcutta as a party respondent praying for an order directing the Chief Justice to treat him as continuing in office till December 27, 1964 and \"to assign judicial work\" to him."}}, {"text": "December 27, 1964", "label": "DATE", "start_char": 16870, "end_char": 16887, "source": "ner", "metadata": {"in_sentence": "The respondent then filed a petition on January 2, 1962 in the High Court of Calcutta impleading the Chief Justice of the Court of Calcutta as a party respondent praying for an order directing the Chief Justice to treat him as continuing in office till December 27, 1964 and \"to assign judicial work\" to him."}}, {"text": "Himansu Kumar Bose", "label": "JUDGE", "start_char": 17408, "end_char": 17426, "source": "ner", "metadata": {"in_sentence": "This Court dismissed an appeal against the order of the High Court: Hon'ble Mr.\n\nJustice Himansu Kumar Bose, Chief Justice, High Court, Calcutta and another v. Jyoti Prakash Mitter(')."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 18042, "end_char": 18050, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 18454, "end_char": 18462, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 18742, "end_char": 18750, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 18873, "end_char": 18881, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 19066, "end_char": 19074, "source": "regex", "metadata": {"statute": null}}, {"text": "May 15, 1961", "label": "DATE", "start_char": 19225, "end_char": 19237, "source": "ner", "metadata": {"in_sentence": "The Court observed:\n\n\"The question concerning the age of the appellant (respondent herein) on which a decision was Teached by the President on May 15, 1961, affects the appellant in a very serious manner; and so, we think considerations of natural justice and fair-play require that before this question is determined by the President, the appellant should be given a chance to adduce his evidence."}}, {"text": "Art. 217(3)", "label": "PROVISION", "start_char": 19699, "end_char": 19710, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 20013, "end_char": 20021, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 20178, "end_char": 20186, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 20340, "end_char": 20348, "source": "regex", "metadata": {"statute": null}}, {"text": "Union of India", "label": "ORG", "start_char": 20579, "end_char": 20593, "source": "ner", "metadata": {"in_sentence": "stated to us on behalf of the Union of India that in case our decision on the main point is rendered against the Union of India, the Union of India will place the matter before the President within a fortnight after the pronouncement of our judgment inviting him to decide the question about the appellant's age under Art."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 20867, "end_char": 20875, "source": "regex", "metadata": {"statute": null}}, {"text": "President of India", "label": "RESPONDENT", "start_char": 21242, "end_char": 21260, "source": "ner", "metadata": {"in_sentence": "Thereafter the President of India directed the Secretary."}}, {"text": "September 29, 1965", "label": "DATE", "start_char": 21659, "end_char": 21677, "source": "ner", "metadata": {"in_sentence": "Ministry of Home Affairs, to call upon the respondent to \"make such representation as he may wish to make in the matter and , produce such evidence as he may desire to produce in support of his claim that his correct age should be determined on the basis of his date ofbirth being taken as December 27, 1904\", and after consulting the Chief Justice of India by order dated September 29, 1965, determined the date of birth of the respondent as December 27, 1901."}}, {"text": "November 17; 1964", "label": "DATE", "start_char": 21966, "end_char": 21983, "source": "ner", "metadata": {"in_sentence": "On November 17; 1964 the Secretary of the w:nistry of Home Affairs drew up a note tracing the history of the\n\nligation upto the decision of this Court, and invited the President to determine the age of the respondent under Art."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 22186, "end_char": 22194, "source": "regex", "metadata": {"statute": null}}, {"text": "November 21, 1964", "label": "DATE", "start_char": 22322, "end_char": 22339, "source": "ner", "metadata": {"in_sentence": "On November 21, 1964 the Presidl)t signed an order calling upon the respondent to make such representation as he may wish to make in the matter and to produce such evidence as he may d(!sire."}}, {"text": "December 7, 1964", "label": "DATE", "start_char": 22558, "end_char": 22574, "source": "ner", "metadata": {"in_sentence": "The respondent submitted h:s representation on December 7, 1964 .and annexed therewith photostat copjes of two documents an almanac and a horoscope on which he relied and certain affidavits."}}, {"text": "December 9, 1964", "label": "DATE", "start_char": 23065, "end_char": 23081, "source": "ner", "metadata": {"in_sentence": "On December 9, 1964 the Secretary to the Ministry of Home Affairs wrote to the respondent asking him to send the original documents copies of which were annexures to his representation to enable him-the Secretary to place them before the President."}}, {"text": "December 14, 1964", "label": "DATE", "start_char": 23830, "end_char": 23847, "source": "ner", "metadata": {"in_sentence": "On December 14, 1964 the respondent addressed a letter to the Secretary to the President, forwarding a copy of his additional representation, with\n\nA a request that representation together with the original documents, which he had handed over to the Ministry of Home Affairs, be calkd for from that Ministry and be placed before the President."}}, {"text": "December 21, 1964", "label": "DATE", "start_char": 24175, "end_char": 24192, "source": "ner", "metadata": {"in_sentence": "On December 21, 1964 the Secretary, Ministry of Home Affairs sent a reply to the letter directing the respondent to send all the evidence that he desired to rely upon and informing him that no B oral evidence of witnesses will be received, the respondent being free to submit affidavits of witnesses."}}, {"text": "December 31, 1964", "label": "DATE", "start_char": 24792, "end_char": 24809, "source": "ner", "metadata": {"in_sentence": "On December 31, 1964 the originals of the horoscope and the almanac submitted by the respondent were sent to the Director of the Central Forensic Institute, Calcutta by the Ministry of Home Affairs with the request that the hori>scope and the entry in ink in the margin of the almanac be examined \"with."}}, {"text": "Central Forensic Institute, Calcutta", "label": "ORG", "start_char": 24918, "end_char": 24954, "source": "ner", "metadata": {"in_sentence": "On December 31, 1964 the originals of the horoscope and the almanac submitted by the respondent were sent to the Director of the Central Forensic Institute, Calcutta by the Ministry of Home Affairs with the request that the hori>scope and the entry in ink in the margin of the almanac be examined \"with."}}, {"text": "January 4, 1965", "label": "DATE", "start_char": 25363, "end_char": 25378, "source": "ner", "metadata": {"in_sentence": "On January 4, 1965 the respondent submitted four additional affidavits including his own affidavit affim1ing that the writing on the margin of the almanac against the date 12 Paus, 1311 B.S .. was that of his maternal uncle."}}, {"text": "Jadunath Bose", "label": "OTHER_PERSON", "start_char": 25585, "end_char": 25598, "source": "ner", "metadata": {"in_sentence": "Jadunath Bose."}}, {"text": "Titaghur Mills", "label": "ORG", "start_char": 28284, "end_char": 28298, "source": "ner", "metadata": {"in_sentence": "Thereafter the Director reported on a \"limited examination\" that could be carried out that it was not possible to give any opinion relating to the age of the ink writing on the almanac\", but in his view the horoscope could not have been written earlier than 1909, because the paper on which it was written c, mtained bamboo pulp which was not brought into the use by the Titaghur Mills in the manufacture of paper before 1912."}}, {"text": "Art. 217(3)", "label": "PROVISION", "start_char": 29480, "end_char": 29491, "source": "regex", "metadata": {"statute": null}}, {"text": "August 4, 1965", "label": "DATE", "start_char": 30004, "end_char": 30018, "source": "ner", "metadata": {"in_sentence": "The respondent by his letter dated August 4, 1965, stated that it was not possible for him to give definitely the date or year of the horoscope but he asserted that it was at least in existence in the year 1921 when it was consulted on the occasion of his marriage."}}, {"text": "February 23, 1965", "label": "DATE", "start_char": 30238, "end_char": 30255, "source": "ner", "metadata": {"in_sentence": "On February 23, 1965 the respondent addressed a telegram to the President requesting that an early decision of the question of his age may be reached."}}, {"text": "March 15, 1965", "label": "DATE", "start_char": 30389, "end_char": 30403, "source": "ner", "metadata": {"in_sentence": "On March 15, 1965 he addressed another telegram to the President requesting leave to produce other documentary evidence which he claimed may be available in East Pakistan,\n\nbut sometime thereafter he informed the Secretary, Ministry of Home Affairs, that owing to lack of co-operation on the part of the people in East Pakistan it was not possible to get the evidence which was mentioned in his letter to the President and that he must content himself with the evidence he bad already produced and which in his view was \"overwhelming\"."}}, {"text": "East Pakistan", "label": "GPE", "start_char": 30543, "end_char": 30556, "source": "ner", "metadata": {"in_sentence": "On March 15, 1965 he addressed another telegram to the President requesting leave to produce other documentary evidence which he claimed may be available in East Pakistan,\n\nbut sometime thereafter he informed the Secretary, Ministry of Home Affairs, that owing to lack of co-operation on the part of the people in East Pakistan it was not possible to get the evidence which was mentioned in his letter to the President and that he must content himself with the evidence he bad already produced and which in his view was \"overwhelming\"."}}, {"text": "3rd February, 1965", "label": "DATE", "start_char": 31137, "end_char": 31155, "source": "ner", "metadata": {"in_sentence": "He furthei: stated :\n\n\"You can, therefore, take it that I have no further evidence to P.roduce on the subject of my age, unless I am driven to call an expert or experts as indicated by me in my letter to you, dated 3rd February, 1965\"."}}, {"text": "August 13, 1965", "label": "DATE", "start_char": 31162, "end_char": 31177, "source": "ner", "metadata": {"in_sentence": "On August 13, 1965, copies of the reports of the Director of the Forensic Science Laboratory were forwarded by the Home Secretary to the respondent with a forwarding letter by which the respondent was informed that if he had any comments to make on the opinion expressed by the Director they may be submitted and that if the respondent desired he m8y also adduce evidence in rebuttal in the form of expert opinion supported by proper affidavit, and that the commen1s, evidence and affidavits, if any, may be sent within one month of the letter."}}, {"text": "September 1, 1965", "label": "DATE", "start_char": 31817, "end_char": 31834, "source": "ner", "metadata": {"in_sentence": "On receipt of the letter of the Home Secretary the respondent sent a telegram addressed to the Home Secretary on September 1, 1965, praying that the President may call for all papers and documents, if not already sent for and grant him an audience, \"If at all necessary''."}}, {"text": "September 16, 1965", "label": "DATE", "start_char": 32607, "end_char": 32625, "source": "ner", "metadata": {"in_sentence": "On September 16, 1965 the President referred the\n\nmatter to the Chief Justice of India asking him for his advice."}}, {"text": "September 28, 1965", "label": "DATE", "start_char": 32721, "end_char": 32739, "source": "ner", "metadata": {"in_sentence": "On September 28, 1965 the Chief Justice recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901."}}, {"text": "Iyengar", "label": "OTHER_PERSON", "start_char": 32959, "end_char": 32966, "source": "ner", "metadata": {"in_sentence": "The Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Director of the Central Forensic Science Laboratory, Calcutta bearing on the dispute as to 'the true date of birth of the respondent."}}, {"text": "Central Forensic Science Laboratory, Calcutta", "label": "ORG", "start_char": 32984, "end_char": 33029, "source": "ner", "metadata": {"in_sentence": "The Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Director of the Central Forensic Science Laboratory, Calcutta bearing on the dispute as to 'the true date of birth of the respondent."}}, {"text": "Milter", "label": "OTHER_PERSON", "start_char": 33238, "end_char": 33244, "source": "ner", "metadata": {"in_sentence": "The Chief Justice of India thereafter observed :\n\n\" ........ the question which the President has to .decide is whether the date of Mr. Milter's birth mentioned\n\non the occasions when he appeared for the Matriculation Examination as well as for the Indian Civil Service Examination.", "canonical_name": "Milter"}}, {"text": "Mitter", "label": "OTHER_PERSON", "start_char": 33522, "end_char": 33528, "source": "ner", "metadata": {"in_sentence": "is incorrect; and that would naturally turn upon whether it is shown that the entry in ink on the margin of the almanac showing that Mr. Mitter was born on 27-12-1904, was contemporaneously made and is correct as alleged by him.", "canonical_name": "Milter"}}, {"text": "27-12-1904", "label": "DATE", "start_char": 33541, "end_char": 33551, "source": "ner", "metadata": {"in_sentence": "is incorrect; and that would naturally turn upon whether it is shown that the entry in ink on the margin of the almanac showing that Mr. Mitter was born on 27-12-1904, was contemporaneously made and is correct as alleged by him."}}, {"text": "Mittet", "label": "OTHER_PERSON", "start_char": 33642, "end_char": 33648, "source": "ner", "metadata": {"in_sentence": "The horoscop.~ on which Mr. Mittet relies, refers to the date and time of his birth, but that dos not help Mr. Mitter very much, because it is obviously based upon information given to J yotish-Sastri Shri J ogesh Chandra Deba Sarma on the basis of the entry in the almanac.", "canonical_name": "Milter"}}, {"text": "J yotish-Sastri", "label": "OTHER_PERSON", "start_char": 33799, "end_char": 33814, "source": "ner", "metadata": {"in_sentence": "The horoscop.~ on which Mr. Mittet relies, refers to the date and time of his birth, but that dos not help Mr. Mitter very much, because it is obviously based upon information given to J yotish-Sastri Shri J ogesh Chandra Deba Sarma on the basis of the entry in the almanac."}}, {"text": "J ogesh Chandra Deba Sarma", "label": "OTHER_PERSON", "start_char": 33820, "end_char": 33846, "source": "ner", "metadata": {"in_sentence": "The horoscop.~ on which Mr. Mittet relies, refers to the date and time of his birth, but that dos not help Mr. Mitter very much, because it is obviously based upon information given to J yotish-Sastri Shri J ogesh Chandra Deba Sarma on the basis of the entry in the almanac."}}, {"text": "-12-1904", "label": "DATE", "start_char": 34813, "end_char": 34821, "source": "ner", "metadata": {"in_sentence": "advised the President to hold that Mr. Mitter has failed to show that he was born on 27-12-1904 and not on 27-12-1901; and that the question about his age should be decided on the bash that he was born on 27-12-1901\"."}}, {"text": "27-12-1901", "label": "DATE", "start_char": 34833, "end_char": 34843, "source": "ner", "metadata": {"in_sentence": "advised the President to hold that Mr. Mitter has failed to show that he was born on 27-12-1904 and not on 27-12-1901; and that the question about his age should be decided on the bash that he was born on 27-12-1901\"."}}, {"text": "September\n\n29. 1965", "label": "DATE", "start_char": 35269, "end_char": 35288, "source": "ner", "metadata": {"in_sentence": "The Home Secretary on September\n\n29."}}, {"text": "H.M.", "label": "RESPONDENT", "start_char": 35536, "end_char": 35540, "source": "ner", "metadata": {"in_sentence": "H.M. (Horne Minister) may recommend to the President •that the age Shri J. P. Mitter may be determined in 3C cordance with the advice of th~ Chief Justice of India.\""}}, {"text": "J. P. Mitter", "label": "OTHER_PERSON", "start_char": 35608, "end_char": 35620, "source": "ner", "metadata": {"in_sentence": "H.M. (Horne Minister) may recommend to the President •that the age Shri J. P. Mitter may be determined in 3C cordance with the advice of th~ Chief Justice of India.\""}}, {"text": "Jyoti Parkash Mitter", "label": "RESPONDENT", "start_char": 36004, "end_char": 36024, "source": "ner", "metadata": {"in_sentence": "The President recorded his decision that he accepted \"the advice tendered by th, e Chief\n\nJustice of India and \"decided\" that the age of Sri Jyoti Parkash Mitter should be determined on the basis that he was born on the twenty-seventh December nineteen hundred and one\" .", "canonical_name": "JYOTI PRAKASH MITTER"}}, {"text": "October 15, 1965", "label": "DATE", "start_char": 36242, "end_char": 36258, "source": "ner", "metadata": {"in_sentence": "On October 15, 1965 the respondent addressed a letter to the President praying that the decision which had been , made without affording him an audience should be reopened and that he should be granted an audience in the presence of the Chief Justice of India and a representative of the Home Ministry."}}, {"text": "August 3, 1966", "label": "DATE", "start_char": 36867, "end_char": 36881, "source": "ner", "metadata": {"in_sentence": "On August 3, 1966 the respondent moved tht.:"}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 37008, "end_char": 37022, "source": "ner", "metadata": {"in_sentence": "petition out of which this appeal arises claiming a writ in the nture of mandamlls commandin11 the Union of India ( i) to act and proceed in ac cordance with law, (ii) to rescind, recall and withdraw the purported decision of the President conveyed to him by the Secretary to the Government of India in his letter dated October 13, 1965 and (iii) to forbear from giving effect or further effect to the purported decision of the President.", "canonical_name": "UNION OF INDIA"}}, {"text": "October 13, 1965", "label": "DATE", "start_char": 37229, "end_char": 37245, "source": "ner", "metadata": {"in_sentence": "petition out of which this appeal arises claiming a writ in the nture of mandamlls commandin11 the Union of India ( i) to act and proceed in ac cordance with law, (ii) to rescind, recall and withdraw the purported decision of the President conveyed to him by the Secretary to the Government of India in his letter dated October 13, 1965 and (iii) to forbear from giving effect or further effect to the purported decision of the President."}}, {"text": "D. D. Basu", "label": "JUDGE", "start_char": 37375, "end_char": 37385, "source": "ner", "metadata": {"in_sentence": "The petition was heard by D. D. Basu, J. After an elaborat~ discussion of the history of the dispute and decisions of the Courts in India and abroad, under diverse heads, the learned Judge concluded:\n\nthat \" ........ the impugned order of the President, the purport of which was communicated to the petitioner\n\n(respondent) by the letter of the Home Secretary, dated 13-10-1965 is not a 'decision' of the President in term of An."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 37969, "end_char": 37977, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 38385, "end_char": 38393, "source": "regex", "metadata": {"statute": null}}, {"text": "October 13, 19.65", "label": "DATE", "start_char": 38539, "end_char": 38556, "source": "ner", "metadata": {"in_sentence": "He directed the Union of India not to give effect to the order of the President as communicated by the letter of the Home Secretary dated October 13, 19.65."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 38796, "end_char": 38804, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 112( 1)", "label": "PROVISION", "start_char": 38878, "end_char": 38890, "source": "regex", "metadata": {"statute": null}}, {"text": "article 217(3)", "label": "PROVISION", "start_char": 39015, "end_char": 39029, "source": "regex", "metadata": {"statute": null}}, {"text": "D.b. Basu", "label": "JUDGE", "start_char": 39051, "end_char": 39060, "source": "ner", "metadata": {"in_sentence": "Observing that the case involved a substantial question of law as to the inter- -pretation of article 217(3) of the Constitution, D.b."}}, {"text": "Art. 132", "label": "PROVISION", "start_char": 39106, "end_char": 39114, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 132", "label": "PROVISION", "start_char": 39199, "end_char": 39207, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 39254, "end_char": 39267, "source": "ner", "metadata": {"in_sentence": "132 (1) of the Constitution an appeal lies to the Supreme Court from any judgment; decree or final order of a High Court, whether in a civil, criminal or other proceedings, if the High Court certifies that the case involves a substantial question cl law as to the interpretation of the Constitution."}}, {"text": "January 26,\n\n1950", "label": "DATE", "start_char": 40736, "end_char": 40753, "source": "ner", "metadata": {"in_sentence": "Atticle 217 (3) incorporated by the Fifteenth Amendment Act in the Constitution was given retrospective effect from January 26,\n\n1950."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 41222, "end_char": 41230, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 44163, "end_char": 44171, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 44423, "end_char": 44431, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217(3)", "label": "PROVISION", "start_char": 46634, "end_char": 46645, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 46849, "end_char": 46857, "source": "regex", "metadata": {"statute": null}}, {"text": "sendig", "label": "JUDGE", "start_char": 47489, "end_char": 47495, "source": "ner", "metadata": {"in_sentence": "The procedure followed in the present case of\n\nsendig to the Chief Justice of India the file of papers relating to the evidence against the respondent and in his favour, and of obtaining his advice fully complied with the constitutional requirements as to consultation with the Chief Justice of India when he rendered his advice to the President."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 48139, "end_char": 48147, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 48468, "end_char": 48476, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 48791, "end_char": 48799, "source": "regex", "metadata": {"statute": null}}, {"text": "Deeember 21, 1964", "label": "DATE", "start_char": 49588, "end_char": 49605, "source": "ner", "metadata": {"in_sentence": "In reply thereto by letter dated Deeember 21, 1964, the Secretary to the Ministry of Home Affairs 'informed the respondent that no oral evidnce of witnesses would be received but the respondent was free to submit the affidavits of witnesses as he relied upon."}}, {"text": "Ministry of Horne Affairs", "label": "ORG", "start_char": 50237, "end_char": 50262, "source": "ner", "metadata": {"in_sentence": "Again in reply to the letter written by the respondent on January 4, 1965, the Secretary to the Ministry of Horne Affairs informed the respondent that the procedure to be followed and the opportunities to be given to the respondent were entirely to depend upon the direction of the President and the respondent will be given an opportunity to put forward his case.about the evidentiary value of the documents produced by him."}}, {"text": "April 28, 1965", "label": "DATE", "start_char": 50711, "end_char": 50725, "source": "ner", "metadata": {"in_sentence": "By his letter dated April 28, 1965, to the Secretary."}}, {"text": "Article 217", "label": "PROVISION", "start_char": 51371, "end_char": 51382, "source": "regex", "metadata": {"statute": null}}, {"text": "United Kingdom", "label": "GPE", "start_char": 52931, "end_char": 52945, "source": "ner", "metadata": {"in_sentence": "On the one hand there was the evidence of the matriculation certificate and the representation made' by the respondent before the Board of Commissioners in the United Kingdom when the respondent submitted himself for being admitted to the Indian Civil Service Examination."}}, {"text": "Decemlnr 27, 1904", "label": "DATE", "start_char": 53145, "end_char": 53162, "source": "ner", "metadata": {"in_sentence": "On the other hand there was the evidence of the assertion made by the respondent that he was born on Decemlnr 27, 1904, which was sought to be supported by the almanac with an entry in the margin, a horoscope, an affidavit of Panchkari Banerjee, Secretary to the then Chief Justice Sir Arthur Trevor Harries in which it was stated that the question about the age of the respondent was discussed with the Chief Justice."}}, {"text": "Panchkari Banerjee", "label": "OTHER_PERSON", "start_char": 53270, "end_char": 53288, "source": "ner", "metadata": {"in_sentence": "On the other hand there was the evidence of the assertion made by the respondent that he was born on Decemlnr 27, 1904, which was sought to be supported by the almanac with an entry in the margin, a horoscope, an affidavit of Panchkari Banerjee, Secretary to the then Chief Justice Sir Arthur Trevor Harries in which it was stated that the question about the age of the respondent was discussed with the Chief Justice.", "canonical_name": "Panchakari Banerjee"}}, {"text": "Arthur Trevor Harries", "label": "JUDGE", "start_char": 53330, "end_char": 53351, "source": "ner", "metadata": {"in_sentence": "On the other hand there was the evidence of the assertion made by the respondent that he was born on Decemlnr 27, 1904, which was sought to be supported by the almanac with an entry in the margin, a horoscope, an affidavit of Panchkari Banerjee, Secretary to the then Chief Justice Sir Arthur Trevor Harries in which it was stated that the question about the age of the respondent was discussed with the Chief Justice.", "canonical_name": "Arthur Trevor Harries"}}, {"text": "East European", "label": "GPE", "start_char": 54145, "end_char": 54158, "source": "ner", "metadata": {"in_sentence": "It was urged that the President left India ia the afternoon of September 29, 1965 on a tour of East European countries and that ; he had not sufficient time to consider the advice tendered by the ·\n\nChief Justice of India and of going through all the evidence which was placed before him and of giving any judicial consideration to the matter before him."}}, {"text": "February 24, 1967", "label": "DATE", "start_char": 54931, "end_char": 54948, "source": "ner", "metadata": {"in_sentence": "In this Court in the affidavit in reply filed by the respondent on February 24, 1967 in answer to the additional affidavit of the Union of India the respondent stated two new grounds (I) that the Chief Justice of India had privately advised the Ministry of Home Affairs as to the conduct of the enquiry or reference under Art."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 55186, "end_char": 55194, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 55323, "end_char": 55331, "source": "regex", "metadata": {"statute": null}}, {"text": "New Delhi", "label": "GPE", "start_char": 55675, "end_char": 55684, "source": "ner", "metadata": {"in_sentence": "justice and fair play and vitiated his own purported advice to the President as well as the purported decision of the President rendering the purported decision a nullity\"; and (2) that \"the President of India left New Delhi shortly after noon on September 29, 1965, on a tour of East European countries and Ethopia and that shortly before his departure a relative to the said reference was placed before him for his signature in token of his purported decision as to \"the respondent's age with the recommendation of the Prime Minister and the Home Minister to determine the age of the respondent in accordance with the advice of the Chief Justice of India\" He annexed thereto a copy of the daily edition of the Statesman dated September 30,\n\n1965, evidencing the departure of the President as aforesaid and his purported decision as to the question of the age of the respondent before his departure for Europe."}}, {"text": "Europe", "label": "GPE", "start_char": 55745, "end_char": 55751, "source": "ner", "metadata": {"in_sentence": "justice and fair play and vitiated his own purported advice to the President as well as the purported decision of the President rendering the purported decision a nullity\"; and (2) that \"the President of India left New Delhi shortly after noon on September 29, 1965, on a tour of East European countries and Ethopia and that shortly before his departure a relative to the said reference was placed before him for his signature in token of his purported decision as to \"the respondent's age with the recommendation of the Prime Minister and the Home Minister to determine the age of the respondent in accordance with the advice of the Chief Justice of India\" He annexed thereto a copy of the daily edition of the Statesman dated September 30,\n\n1965, evidencing the departure of the President as aforesaid and his purported decision as to the question of the age of the respondent before his departure for Europe."}}, {"text": "Ethopia", "label": "GPE", "start_char": 55768, "end_char": 55775, "source": "ner", "metadata": {"in_sentence": "justice and fair play and vitiated his own purported advice to the President as well as the purported decision of the President rendering the purported decision a nullity\"; and (2) that \"the President of India left New Delhi shortly after noon on September 29, 1965, on a tour of East European countries and Ethopia and that shortly before his departure a relative to the said reference was placed before him for his signature in token of his purported decision as to \"the respondent's age with the recommendation of the Prime Minister and the Home Minister to determine the age of the respondent in accordance with the advice of the Chief Justice of India\" He annexed thereto a copy of the daily edition of the Statesman dated September 30,\n\n1965, evidencing the departure of the President as aforesaid and his purported decision as to the question of the age of the respondent before his departure for Europe."}}, {"text": "September 30,\n\n1965", "label": "DATE", "start_char": 56188, "end_char": 56207, "source": "ner", "metadata": {"in_sentence": "justice and fair play and vitiated his own purported advice to the President as well as the purported decision of the President rendering the purported decision a nullity\"; and (2) that \"the President of India left New Delhi shortly after noon on September 29, 1965, on a tour of East European countries and Ethopia and that shortly before his departure a relative to the said reference was placed before him for his signature in token of his purported decision as to \"the respondent's age with the recommendation of the Prime Minister and the Home Minister to determine the age of the respondent in accordance with the advice of the Chief Justice of India\" He annexed thereto a copy of the daily edition of the Statesman dated September 30,\n\n1965, evidencing the departure of the President as aforesaid and his purported decision as to the question of the age of the respondent before his departure for Europe."}}, {"text": "Commissioner of Police Malaya", "label": "RESPONDENT", "start_char": 57683, "end_char": 57712, "source": "ner", "metadata": {"in_sentence": "In that case the Commissioner of Police Malaya passed an ordor dismissing one Kanda, an Inspector of Police, on the ground that at an inquiry before an adjudicating officer Kanda was found guilty of failing to disclose evidence at a criminal trial."}}, {"text": "Kanda", "label": "OTHER_PERSON", "start_char": 57744, "end_char": 57749, "source": "ner", "metadata": {"in_sentence": "In that case the Commissioner of Police Malaya passed an ordor dismissing one Kanda, an Inspector of Police, on the ground that at an inquiry before an adjudicating officer Kanda was found guilty of failing to disclose evidence at a criminal trial."}}, {"text": "article 135", "label": "PROVISION", "start_char": 58475, "end_char": 58486, "source": "regex", "metadata": {"statute": null}}, {"text": "Denning", "label": "OTHER_PERSON", "start_char": 58564, "end_char": 58571, "source": "ner", "metadata": {"in_sentence": "Lord Denning who delivered the judgment of the Judicial Committe~ considered the question whether the hearing by the adjudicating officer was vitiated because that officer was furnished with the report without inspector Kanda being given any opportunity of correcting or contradicting it."}}, {"text": "High Court of Malaya", "label": "COURT", "start_char": 58859, "end_char": 58879, "source": "ner", "metadata": {"in_sentence": "Before the High Court of Malaya the question posed was whther there was a real likelihood of bias, that is \"an operative prejudice, whether conscious or unconscious\" on the part of the adjudicating officer."}}, {"text": "B. Surinder Singh Kanda", "label": "OTHER_PERSON", "start_char": 62139, "end_char": 62162, "source": "ner", "metadata": {"in_sentence": "The principle in B. Surinder Singh Kanda' s case (1) has therefore no application."}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 62323, "end_char": 62331, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 62483, "end_char": 62489, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 217", "label": "PROVISION", "start_char": 63937, "end_char": 63945, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_506_521_EN", "year": 1971, "text": ".N. B. SANJANA, ASSIST ANT COLLECTOR OF CENTRAL A\n\nEXCISE, BOMBAY & ORS.\n\n\\',\n\n:ELPHINSTONE SPINNING & WEAVING MILLS CO. LTD,\n\nJ miuary 22, 1971\n\n(J.M. SHELAT AND C. A. VAID!AL!NGAM, JJ.J\n\nCentrul Excise Rules, 1944, rr. 9, IO und JOA-Scope of.\n\n'Lev)\", 'Short .f,.evy' 'paid' in r. 10, meuni1111 of.\n\nUnder r. 8 of the Central Excise Rule;, 1944, made under ihe Central :Excise and Salt Act, 1944, the Central Government issued a rrotific.ation .exempting cotton fabrics from excise duty.\n\nThe. respondents owned a .textile mill and factory.\n\nThey manufactured grey cloth which was remoVed_ from the mill and kept_ in a goA. Alternatively it was contended that if rule 1 OA did not apply, the demands made by them were amply covered by rule 9 ( 2).\n\nThe learned Single Judge accepted the contention of the respondents and held that rule 10 .•applied and as the demand notices had been issued long after the expiry of three months, Ex. G and H, the notices, were illegal and void. In this view the learned Single Judge quashed the said notices.\n\nOn appeal the Division Bench confirmed the order of the learned Single Judge.\n\nThis is a convenient stage to refer to the relevant rules. They are rules 7, 9, 10, JOA, 52 and 52A(l). We have already referred to the fact that the rules have been made by the Central Government under s. 37 of the Act. Those rules, referred to above, are as follows :\n\n\"(7) Recovery of Duty :-Every person who produces, cures, or manufactures any excisable goods, or who stores such goods in a warehous.e, shall pay the duty or duties leviable on such goods, at such time and place and to such person as may be designated, in or\n\nQ ..\n\nd~·\n\n··\"'\n\nN. B. SANJANA v. ELPHINSTONE MILLS (Vaidia/ingam, J.) 511\n\nunder the authority of these Rules, whether the payment of such duty or duties is secured by bond or otherwise.\n\n(9) Time and manner of payment of duty:-\n\n( 1) No excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export, or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require and except on presentation of an appli\n\ncation in the proper form and on obtaining the permission of the proper officer on the form;\n\nProvided that such goods may be deposited without payment of duty in a store-room or other place of storage approved by the Collector under rule 27 or rule 47 or in a warehouse appointed or licensed under rule 140 or may be exported under bond as provided in rule 13;\n\nProvided further that such goods may be removed on part-payment of duty leviable thereon if the Central Government, by notification in the Official Gazette, allow the goods to be so removed under rule 49;\n\nProvided also that the Collector may, if he thinks fit instead of requiring payment of duty in respect of each separate consignment of goods removed from the place or premises specified in this behalf, or from a store-room or wareh6use duly approved, appointed or licensed by him keep with any person dealing in such goods an account-current -0f the duties payable thereon and such account shall be settled at internal, not exceeding one month aLd the account-holder shall periodically make deposit therein sufficient in the opinion of the Collector to cover the duty due on the goods intended to be removed from the place of production, curing, manufacture or storage.\n\n( 2) If any excisable goods are, in contravention of sub-rule ( i) deposited in, or remod from any place specified therein, the producer or manufactrer thereof shall pay the duty leviable on such goods upon written demand made by the proper officer, whether such demand is delivered personally to him, or is left at his dwelling house, and shall also be liable to a penalty which\n\nmay extend to two thousand rupees, and such goods shall be liable to confiscation.\n\n(10) Recovery of duties or charges short-levied, or erroneously refunded- When duties or charges have been short-levied through ina:dvertance, error, collusion. or mis-construction on the part of an officer, or through mis-statement as to the quantity, description or value of such goods on the part of the ownP-r, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the person chargeable with the duty or charge, so short-levied, or to whom such refund has been erroneously made, shall pay the deficiency or pay the amount paid to him in excess, as the case may be, on written demand by the proper officer being made within three months from the ciate on which the duty or charge was paid or adjusted in the owners account-current, if any, or from •the date of making the refund.\n\n(10-A) Residuary powers for recovery of sums due to Government-\n\nWhere these Rules do not make any specific provision for the collection of any duty, or of any deficiency in duty if the duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these Rules, such duty, deficiency in duty or sum shall, on a written demand made by the proper officer, be paid to such person and at such time and place, as the proper officer may specify. ( 52) Clearance on payment duty-\n\nWhen the manufacturer desires to remove goods on payment of duty, either from tl1e place or a premise specified .under rule 9 or from a store-room or other place of storage approved by the Collector under rule 47, he shall make application in triplicate (unless otherwise by rule or order required) to the proper officer in the propr Form and shall deliver it to the officer at least twelve hours (or such other period as may be elsewher-.. prescribed or as the Collector may in any particular case require or allow) before it is intended to remove the goods.\n\nThe officer, shall, thereupon, assess the amount of duty due on the goods and on production of evidence\n\nN. B. SANJANA v. ELPH!NSTONE MILLS (Vaidialingam. J.) 513\n\nthat this sum has been paid into the Treasury or paid in the account of the Collector in the Reserve Bank of India or the State Bank of India, or has , been des- . patched to the Treasury by money-order shall allow the goods to be cleared. 52A-( I) Goods to be delivered on a Gatepass- No excisable goods shall 'be delivered from a factory except under a gatepass in the proper Form or in such other form as the Collector may in any particular case or class of cases prescribe signed by the owner of the factory and countersigned by the proper officer.\" Dr. Syed Mohammad, learned counsd for the appellants urged that going by a plain reading of rule 10, it is clear thaMhe said rule will apply only to cases : ( 1) when an assessment has been made that same amount is due as duty and (2) when the said amount so assessed has been paid by the party c-Ollcerned. In this case, he pointed out, there has been, no doubt, a11 order of assessment passed when the goods were cleared by the party, but that order of assessment was not one making the party liable to pay any duty, on the other hand, it was an order of 'nil , assessment' under which the party was to pay no duty whatsoever. In consequence of such assessment, no duty having been paid, it cannot be stated that theroe has been a short levy for any of the reasons mentioned in rule 10.\n\nAccording to the learned counsel rule 10 will apply only when there has been an assessment making the party liable to pay some duty and that amount so assessed has also been actually paid or adjusted by the party, as the case may be.\n\nWhen later on it is found that the amount so levied and paid falls short of the correct amount that ought to have been levied and paid by the party, rule 10 will stand attracted. In this connection he placed very great reliance on the concluding part of rule I 0 where a period of three months by way of limitation has been provided for calling upon the party to pay the deficiency an:! the period of three munths is to be calculated \"from the da~~ on which the duty or charge was paid .... \" He stressed that the use of the expression \"paid\" clearly indicates that som~ duty must have been actually paid by a party on a particular date and if that were not so, it would be difficult to calculate the period of three months with in which a party can be called upon to make good the deficiency.\n\nThe counsel also urged that the word 'levy' in rule I 0 means actual collection and that short levy, therefore, denotes that full duty has not been collected. He also urged 'that rule IOA covers all cases of short levy or non-levy for any reason whatsoever and the notices issued by the appellants in this case are legal and valid.\n\nHe finally urged that even if it is held that rule 1 OA does not\n\napply, the notices could be sustained under rule 9(2) inasmuch A as the respondents have removed the goods without payment of duty in contravention of rule 9 (1). The mere fact that one of the notices issued on November 3, 1961 refers to rule lOA is not on tha~ ground invalid when the authorities have ample power to issu.e such notices under rule 9(2).\n\nMr. Daphtary, learned counsel for the respondents and Mr.\n\nSorabjee, learned counsel for an intervener, have both contended that the notices issued by the appellants squarely come under rule\n\n10 and as they have been issued beyond the period of three months, they have been rightly held to be invalid and illegal.\n\nThough the words used in rule 10 \"duty or charge so paid\", reading the rule as a whole it is clear that the rule does not contem plate that any amount should have been levied as a duty and that the said amount should have been paid. The word \"paid\" has only been used to provide a starting point of limitation of three months, Though the ordinary meaning of the expression \"paid\" is that some amount should have been actually paid as such, both\n\nthe counsel pointed, out, that the said word should be consd D in the context in which it appears. So read, it is pointed out that the proper interpretation to be plae who did not pay tax at all would then be ]lilt in the same position substantially which is obviously fair and was clearly intended.\" Regarding the further contention that there was no short fall as no tax has been paid it was observed :\n\n\"With regard to the other question about there be ing no shortfall between eighty per cent of the amount of tax found payable on the regular assessment and the amount of tax paid in a case where no--iax was paid, it seems to us the position is much simpler. If no tax is paid, the amount of such shortfall will naturally be the entire eighty per cent. We also'tb).nk that the case before us is very near to Allen's case.(1 )\"\n\nThe above . decision establishes two propositions : ( 1) though the expression used was \"paid\" it is open to read it all \"ought to have been paid\" having regard to the context in which it appears and to make the provision of Jaw in which that expression appears workable; and (2) the short fall will be the entire eighty per ce11t referred to sub-section (6) of s. 18A.\n\nApplying the above principles to the case on hand, the expression \"paid\" in rule 10 can be reasonably read as \"ought to have been paid\". Similarly even in cases where there has been a niI assessment due to one or other of the circumstances mentioned in rule 10 and if subsequently it is found '- G cedure_ applicable to the hearing and determination of an appeal from the final order passed by a High Court in the exerdse of tis original jurisdiction and the provisions of the Code of Civil Procedure and the rules of the Court shall, as far as possible, apply in relation to such appeal.\n\nThere are no rules of this Court, -and the provisions contained in 0.41, r. 22, C.P.C., are attracted with the result that the respondent may support the decision of the High Court even on any ground decided against him, without preferring an appeal. [542 B-0] H\n\nRamanbhai Asht:.1bai Patel v. Dabhi Ajitkumar Fulsinji, [1965] I S.C.R. 712 and T. N. Angami v. Smt. Ravalu alias Renu M. Shai:r.a, C.A.\n\nNo. 1125/ 1970 dt_. 21.1.1971, followed. ·\n\n( 4) Ordinarily amelioration of grievances of the public is innocuous. and cannot be construed against a candidate who is a Minister. If, however, there is evidence to indicate that any candidate at the election abused his power and position as a Minister in the Government by utilising public revenues for conferring advantage or benefit on a particular group of people for the purpose of .obtaining their votes, different considerations ·\n\nwill arise and it may be held to be a corrupt practice within the meaning of s. 123(1) of the Act. [544 D-FJ\n\nIn the present case, in all the instances relied upon by the appellant the evidence showed that there were long standing public grievances and the Government had from time to time made suggestions and recommendations for redress of the grievances and amelioration of the condition of the people.\n\nIt cannot be said that on the eve of election there was any sudden or spontaneous outburst of public activity in the shape of diverting money to win electors to the side of the first respondent by throwing baits or giving them any particular and specially favoured treatment. [544 G-H; 545 Al\n\nGhasi Ram v. Dal Singh, [1968] 3 S.C.R. 102 and Om Prabha Jain\n\n\nD CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1515 of\n\n1968.\n\nAppeal under S. 116-A of the Representation of the People- Act, 1951 from the judgment and order dated May 10, 1968 of\n\nthe Rajasthan High Court in Election Petition No. 8 of 1967.\n\nA. S. Bobde, Guman Lal Lodha, J. S. Rastogi, Jagadisfr Pandya, M. L. Vaidya, D. V. Dani, S. S. Parekh, S. S. Khanduja and N. K. Shejwalkar, for the appellant. ·\n\nS. Mohan Kumaramangalam, 1. L. Gobhil and K. Baldev Mehta, for respondent No. 1.\n\nM. B. L. Bhargava, S. N. Bhargava and Sobhag Mal Jain, for respondent No. 4.\n\nThe Judgment of the Court was delivered by\n\nRay, J. This appeal is against the judgment of the Rajasthan High Court dated 10 May, 1968, dismissing the Election Petition\n\nfiled by the appellant against the respondent Mohan Lal Sukhadia.\n\nThe election of respondent Mohan Lal Sukhadia to the Rajasthan Legislative Assembly from the Udaipur City Assemblyc Constituency was challenged. The appellant contested 'the elec- H tion en Jan Sangh ticket. The respondent contested on Congress ticket.\n\nThe respondent was the Chief Minister of Rajasthan iat the time of the election. Respondent No. 2 Mohan Lal also contested the election but obtained only 1262 votes.\n\nRespondents 4-918 Sup. C.J./71 .\n\nNarendra Singh Lakheri and Girdhari Lal Sharma Nos. 3 and 4 respectively submitted their nomination papers but withdrew them.\n\nFor the purpose of this appeal we are concerned only with the res- , pondent Mohan Lal Sukhadia.\n\nThe polling took place on 15 February, 1967. The result was declared on 21 February,\n\n1967. The respondent polled 24272 votes. The petitioner obtained 20841 votes. The respondent won by a margin of 3434 votes.\n\nAfter the election the Congress 'Party was reduced to a minority. The respondent Sukhadia who was the Chief Minister tenodered his resignation.\n\nOn 13 March, 1967, the President's Rule was declared in Rajasthan, which was withdrawn after a.period of 44 days on 26 April, 1967. Thereafter the respondent Sukhadia again became .the Chief Minister.\n\nThe election petition was filed on 7 April, 1967. The respon- dent Sukhadia filed an application praying that certain allegations 'in the petition were vague and lacking in particulars required by Section 83 of the Representation of the People Act and, therefore, the allegations should be struck off. The High Court ordered the petitioner to file a detaibd reply giving full particulars in respect of each matter. On 29 May, 1967, the appellant furnished particulars. The High Court by orders dated 3/5/6 July, 1967 allowed the appellant to incorporate the said paticulars in the amended petition and further allowed the appellant to furnish more particulars in respect of other allegations of rrupt practices. On 19 . July, 1967, an amended Election Petition was filed incorporating the amendments allowed by the High Court. Thereafter written statements were filed and the parties filed applications under Rule 12 of the Election Rules for production of the documents.\n\nIssues were framed on 14 August, 1967. The appellant filed a '.finally amended petition on 13 November, 1967.\n\nThe appellant examined 30 witnesses and the respondent sukhadia examined 46 witnesses.\n\nThe High Court decided all the issues in favour of the respondent Sukhadia a!lll dismissed the Election Petition but left tile\n\nrespondent to bear his own cost.\n\nIn the present appeal. we are concerned only with issues 1Nos. 3(a) and 4(a) Issues Nos. 3 and 4 are as follows:-\n\n3 (a) Are the allegations made in paragraphs 8, 9, 10\n\nand 11 of the Election Petition correct ?\n\n3 (b) If so, did the respondent No. 1 coipmit !)le corrupt practice specified in Section 123 ( 1) or Section 123(2) of the Representation of the Peopie Act, 1951?\n\n4(a) Are the allegations mentioned in paragraphs 12, 13, 14 and 15 of the Election Petition correct?\n\n4(b) If so, did the Respondent No. 1 commit corrupt practice specified in Section 123 ( 4) of the Representation of the People Act, 1951?\n\nC As to issue No. 3 based on par@.graphs 8, 9, 10 and 11 of the Election Petition, allegations of corrupt practice of bribery and undue influence concerned with the construction of certain works of general public utility to the inhabitants of Udaipur like the covering of Baluchistan Colony Nallah, construction of i:oad at Tekri, installation of water-taps in Udaipur City and the grant: of D Pattas to. the inhabitants of the Raigar Colony.\n\nIn the petition thr appellant made 7 4 allegations. At the trial 55 allegations were given up. In the present appeal the appellant pressed allegations firS'l abou.t Pattas in Raigar Colony; secondly, about roads in Tekri; thirdly, covering of Nallah in Baluchistan E Colony; fourthly, construction of water-taps; and fifthly, about Ex. 8-A as defamatory of the personal character and conduct of\n\nthe appellant.\n\nThe appeHant's case with regard to Raigar Colony is to be found in paragraph . 9 of the amended petition. The gist of the F allegation is as fol!ows :-\n\nJ'be respondent Sukhadia, his agents and other persons with the consent of Sukhadia promised the voters of the Raigar Colony, Udaipur at a meeting that he would get them Pattas issued at a nominal rate of Re. 1/- only for the construction .of their houses G and under this inducement he asked the Raigar voters to vote for him. Because of this inducement many Raigar voters voted for the respondent Sukhadia.. The respondent Sukhadia by his undue influence as Chief Minister got issued an order No. 66/5011 dated 10 February, 1967, from the Director, Social Welfare Department, Jaipur to grant Pattas to Raigars of Thakker Ba pa :U Colony for construction of houses at a nominal price of Re. 1/- for each patta. The respondent Sukhadia thus committed corrupt practice as defined under S. 123 (1) of the Representation of the People Act. Girdhari Lal, election agent of the respondent\n\nSukhadia arranged a meeting on 5 February, 1967 at the Raigar A Colony. About 100 persons gathered. The audience consisted of Harijans and Raigars. Prominent persons among these were Kalu Raigar, Shankar Harijan and Keshulal, the Secretary of the Raigar Colony. At this meeting the respondent Sukhadia said that he was managing Pattas of the land to be allotted to them for Re. 1/- each and he requested them to vote for him.\n\nThe High Court held that it had not been proved that the respondent Sukhadia made a bargain with the people of Raigar Colony on 5 February, 1967, that if they promised to vote for him he would arrange for the grant of Pattas to them at a nominal charge of Re. 11each Patta. c\n\nThe respondent Sukliadia stated that the order dated 5 February, 1967 (Ex. 271) passed by him and the order dated IO February; 1967 (Ex. 44) passed by the Director of Social Wel- :fure were in furtherance of the policy of the State Government announced as early as 27 April, 1959 (Ex. A-99) and further clarified by a subsequent order dated 26 February, 1962 (Ex.\n\nD A-100). Neither in the original petition nor in the amended petition there was any mention of recovery of devefopment charges by the Urban Improvement Trust in connection with the issues of Pattas. Sukhadia's evidence was that the Urban Improvement Trust under the aforesaid orders of 1959 and 1962 were to issue Pattas after receiving the nominal charge of Re. 11per patta E from the inhabitants of the locality without insisting upon the recovery of development charges as condition precedent to the issue of Pattas.\n\nThe correspondence which was tendered in connection with the Raigar C-0lony indicates that from the year 1955 up to the F. month of July, 1967, certain controversies were going on between the Grihya Nirman Sahkari Samiti, Thakker Bapa Colony on the one hand and the City Improvement Committee and the Urban Improvement Trust on the other. The City Improvement Committee which was the predecessor of the Urban Improvement Trust from the beginning took the stand that Pattas in respect G of the houses .in occupation of the original inhabitants of the locality could not be issued unless they agreed to pay the price of the land and the development charges incurred by the City Improvement Committee. The Samiti on the other hand was anxious to see that the Pattas were granted without having to pay development charges because the people were poor. In Ex. A-99 H dated 27 April, 1959, the State Government made an order laying down the conditions on which the Pattas of the houses could be issued on payment of the nominal price of Re. 1/-. Thereafter\n\ni;\"\n\nthere was demand for issue of Pattas on payment of Rt;. 1/-. The Social Welfare Department wanted the order dated the 27 April,\n\n1959 to be implemented and the City Improvement Committee in sisted on payment of development charges amounting to Rs. 14,828.94. The attitude of the Government as represented by the Social Welfare Department was that Pattas should be issued to the inhabitants of the locality in terms of 27 April, 1959 order on payment of Re. 1/- only per Patta. The Urban Improvement Trust and the. City Improvement Committee were equally insistent on payment of development charges.\n\nEx. 44 being a letter dated 10 February, 1967, issued by the Director of Social Welfare Department to the District Welfare Officer was the sheet-anchor on which the appellant relied.\n\nA copy of that letter was sent to Keshulal, Secretary of the Grihya Nirman Sahakari Samiti, Thakker Bapa Colony. In that letter it was stated: \" ...... it is submitted that there are directions from ihe Government on tl)e application of Keshulal. . . . . . that action be taken without delay in granting pattas to the residents of that Raigar Colorly, Udaipur, on payment at the rate of Re. 11-.\" This letter dated 10 February, 1967 (Ex. 44) seems to have had origin in 1959 and the di:cussions in the year 1966 as will appear from Ex. 268 being an application dated 29 December, 1966, addressed by Keshulal as Secretary of the Colony to the responde{lt Sukhadia as Chief Minister. There is a noting on that application in the hands of the Chid Minister to the effect \"Secretary Social Welfare Officer to discuss the question of subsidy of 52 of the colonies and Pattas.\" That noting was on 28 December,\n\n1966. On 31 December, 1966 the Secretary wrote as follows :\n\n\"Please speak immediately. D. S. (Deputy Secretary)\n\nSocial Welfare.\"\n\nIn this background it is unmistakable that the demand of Raigar Colony for Pattas was as old as a decade and the inhabitants of the colony saw the Chief Minister in December, 1966 and he asked the relevant department to look into the matter. Exs. 270 dated 21 January, 1967 and 271 dated 5 February, 1967 are office notes and order pursuant to the application sent by Keshulal in the month of December, 1966. The Director Social Welfare Department in Ex. 270 stated that ''Pattas were not granted because the development charges were not paid.\" /The Secretary, Social Welfare Department made a note on Ex. 270 that the Chief. Minister (Respondent Sukhadia) was going on tour on 24 January, 1967, therefore, there was no possibility of discussion in the near future. On 5 February, 1967, there is a noting by the Chief Minister on the file that the Raigar residents were ready to get Pattas on payment of Re. 11and after getting the amount\n\ndeposited action should be taken in getting the pattas granted to them and the Social Welfare Officer should be asked to pay personal attention to take action in the matter and other problems such as setting up industries, water arrangements etc. These documents show that Ex. 271 dated 5 February, 1967 was an office note on the file and did not have any independent existence.\n\nThe Chief Minister was asked to give his directions on Keshulal's application in the month of December, 1966. The Director of Social Welfare, therefore, on 10 February, 1967 wrote Ex. 44 \"about grant of Pattas to the residents of the colony.\"\n\nUnder Section 123 (1) of the Representation of the People Act, 1951, bribery is mentioned as a corrupt practice and bribery is any gift offer promise by a candidate. . . . . . . . . . . . . . . . of an7 gratification to any person whosoever with the object of directly or indirectly inducing (b) .............. an elector to vote in an election.\"\n\nThe appellant's allegations were these. Girdhari Lal, election agent of respondent Sukhadia, arranged a meeting on 5 February, 1967 at Raigar Colony, 100 persons gathered. The audience consisted of Harijans and Raigars. The respondent Sukhadia at that meeting said that he was managing pattas of the lands allotted to Raigars and Harijans for Re. 1/ - each and requested them to vote for hir.:. These particulars of the meeting were furnished by way of amendment. Apart from the baldness of allegations as to bargain for votes, the oral evidence adduced on behalf of the appellant was that of P.W. 4 Lakshmi Narain and P.W. 12 Kalu Ram. It is significant that Shankar Harijan and Keshuial, who were mentioned by the appellant as having been present at the meeting were not examined. Kalu Ram was a member elected to• the Municipal Council, Udaipur on Jan Sangh ticket.\n\nLakshmi Narain was neither a Harijan nor <1 Raigar. The appellant. alleged that the audience consisted of Harijans and Raigars.\n\nLakshmi Narain said that when the respondent Sukhadia began addressing a meeting a Harijan and a Raigar are stated to have stood up and mentioned that the Urban Improvement Trust was not permitting them to build an upper storey on the ground that they !lad not got pattas and respondent Sukhadia is supposed to have said that he would get pattas prepared and asked them to vote.\n\nThe question of building 'the second storey was nowhere to be found in the allegations in the petition.\n\nKalu Ram said nothing about the alleged bargain for votes.\n\nOn the contrary, Kalu Ram said that he did not remember to have heard any conversation and he did not state anything about pattas being prepared from Jaipur and being sent to Udaipur before the polling date, though Lakshmi Narain deposed to that effect. If\n\nBHANU KUMAR V, :f, IOHAN LAL (Ray, J.) 529\n\nthe Urban Improvement Trust, Udaipur was the authority for issuing pattas it is unbelievable that the respondent though Chief Minister of the State would make a promise for getting the pattas prepared at Jaipur and send them to Udaipur. Lakshmi Narain said that he was taken by Kalu Ram to the appellant 5 or 6 months after the election.\n\nTh.e appellant then asked Lakshmi Narain whether parchas (leaflets) had been distributed. Lakshmi Narain is supposed to have showed a parcha Ex. 8-A whereupoD\n\nthe ap])ellant asked Lakshmi Narain if the latter could give evidence in court about distribution of Ex. 8-A. Even at that time Lakshmi Narain did not utter a word about the meeting on 5 Feb1uary, 1967 and far less of any bargain by respond.ent Sukhadia for votes at the election. Lakshmi Narain was an interested witness because he brought Ex. 8-A of his own accord, though he was not summoned 'to produce any document in Court.\n\nKaid Ram the other wHness admitted that as early as 1959, the Rajasthan Government passed an order that pattas be issued to the resid.ents of Raigar Colony on a payment of Re. 1/-. This. was merely implementing what the Government had decided in\n\n1959. The respondent's office note .on 5 February, 1967, was nothing new and there was no temptation offered by him.\n\nThe tour programme of the respondent Sukhadia was exhibited i.e. Ex. A-116. Between 3.00 p.m. and 5.00.p.m. on 5 February, 1967, respondent Sukhadia spoke at a meeting of Sindhi Samaj at 4.00 p.m. That statement of Sukhadia was put to him in crossexamination to be correct. Girdhari Lal, the agent of Sukhadia, also spoke of the correctness of the tour programme of Sukhadia and no challenge was made. Roop Kumar P.W. 3 also spoke of the meeting at Sindhi Samaj at about 4.00 p.m. and he was not cross-examined. Nowhere in the election petition the appellant mentioned the time of the meeting at.Raigar Colony on 5 February, 1967. In the tour programme of the respondent Sukhadia it will appear that he met the Kerala Samai on 5 February, 1967 between 3.30 p.m. and 4.00 p.m. at Vidhya Peeth.\n\nBetween 4.00 and 5.00 p.m. he was at Sindhi Samaj and between 5.00 and 5.30 p.m. he met Gujrati Samaj near Fateh School. The respondent Sukhadia held a meeting of the Sindhi Samai at Saletia Ground behind the Vidhya Peeth on 5 February, 1967 at 4.00 p.m. The police record contained in the file which was summoned' at the instance of the appellant contained a copy of the tour programme of respondent Sukhadia which tallied with the tour programmes produced by the respondent Sukhadia and orally deposed to by Sukhadia and witnesses on his behalf.\n\nEx. 109 was a copy of the cyclostyled address presented to the respondent Sukhadia on behalf of Sindhi Refugees at their meeting on 5 February, 1967. This is an additional ground to\n\n;<; upport the respondent Sukhadia's evidence.\n\nThe oral evidence -Of Lakshmi Narain and Kalu Ram is unworthy of belief. The\n\ndocuµie.ntary evidence fortifies th~ oral evidence of resj>ondent Sadia that there was no meetmg of Raigars and Harijans at Uda1pur on 5 February, 1967.\n\nThe assertion made by the appellant that the order dated 5 Feb.ruary, 1967 was passed by the respondent Sukhadia on the :stauonery of the Chief Minister is baseless.\n\nThe original belies that case. On the contrary the order dated 5 February, 1967 is nothing but a noting by the Chief Minister on the file which had been tarted pusuant to fre order of the Government in the year 1959 and occasioned more so because of the application made by Keshtilal in the month of December, 1966.\n\nThe High Court rightly rejected the oral evidence of bargain and characterised the evidence on behalf of the appellant as being wholly \"concocted and fabricated.\"\n\n' Counsel for the appellant submitted that the respondent Sukhadia also made an order for remission of development charges.\n\nThe documents relied on by the appellant do not support any such charge. This is a new case in this Court. There is no foundation for it in the pleadings. This case was not made in the High Court.\n\nTherefor.~, this case cannot be allowed to be made at this stage.\n\nThe second corrupt practice on which the appellant relied is\n\nto be found in paragraph 8 of the petition as a1ll'nded. Broadly stated the appellant's allegations were that the respondent Sukhadia ordered Public Works Department (P.W.D.) to construct a road at Tekri though it was a municipal area and P.W'.D. had no jurisdiction: and further that the respondent held a meeting on 5 Febru- F ary, 1967, and during his speech said that he was arranging for construction of roads and installation of water-taps and requested the people to vote for him. This part of the appellant's case concerns an area called Tekri. There was a new railway station and a yard was constructed that necessitated new road linking police lines to a place called Salumbar road junction. P.W.D.\n\nG undertook to construct a road and when constructed that woulq have made a thoroughfare through the Police Lines from the Railway Station to the Block Office. The police authorities objected.\n\nThe Banjara Samiti which took up the cause complained about the obstruction by the police.\n\nWork was held up. This was in the year 1965-66. When the Police Lines were constructed a short H link route to Tekri village was closed: Therefore, it was decided io construct an approach road to Tekri. When the thoroughfare through\n\n1 the Police Lines was abandoned in the year 1966, the\n\n.• c\n\nExecutive Engineer took a decision to upgrade a part of the road and to use tarred road to make a thoroughfare via village Tekri to give a by-pass to Police Lines. Tekri village was situated to the East of Police Lines at Udaipur. The new railway station was to the North-West of the Jail. The Jail was also to the North- West of the Police Lines. The proposed road was from the Railway Station to Tekri village and then beyond the Police Lines to a point to the Block Office from the North to the South. Tekri village was to the East of the proposed road.\n\nIn the original petition the appellant alleged that the Executive Engineer Chhail Behari Mathur canvassed votes to support respondent Sukhadia. In the amended petition the appellant alleged that Chhail Beha!'i Mathur at thl: instance of the respondent Sukhadia passed orc!ers for construction of roads. The appellant in his oral evidence said he had no personal knowledge and was indefinite as to which road his allegation related but that it related to a road whih ran through Tekri village. Madan Lal, Chairman of the Municipality and a witness on behalf of the appellant could not point any road construction by the Municipality after 28 December, 1959, when Tekri~ was included in it. Two other witnesses Phoola P.W. 25 and Madan Lal P.W. 28 said that the road at Tekri was completed two or three days before the polling. The High Court disbelieved both of them.\n\nThere are important exhibits as to Tekri road construction.\n\nThese are Contractor's Agreement Ex.A/128 dated 10 February, 1967, Measurement Book Ex.A1129 and Running Bill Ex. 70, all for earth work. Ex. A1130 dated 1 April, 1967 and Ex. All31 are the Agreement :ind Measurement Book respectively and both are for soling. The work was described \"special repairs to approach road to Tekri.\" On behalf of the appellant it was emphasized that the change was significant.\n\nEx.A/125 was the Agreement dated 3 September 1965 for oonsmiction of road\n\nby Baniara Samiti in the year 1965 Ex. A/126 is a letter of complaint by the Banjara Samiti against the hindrance by the Police. These documents Al 125 and Al 126 both indicate that when it was intended to have a thoroughfare through the Police Line> to Jaisamand Board some criticism was made as to the name given-\"Construction of Road connecting Police Lines to J aisamand Road\" in the file of the year 1965 but when work commenced it was describe~ as \"Special repairs approach rod to Tekri.\" In Ex. A/ 127 dated 10 April, 1967 bdng estimate for the road it will appear that whon the short link to Tekri village disappeared in Police Lines it was intended to build \"approach road to Tekri\" which was shown on a plan Ex. 80. When the thoroughfare through the Police Lines was abandoned because of\n\nobjection by the Police, it was decided to by-pass the Police A Lines and upgrade the entire road from the Railway Station to the Block Office. The name was amended as \"road from railway crossing to join Salumber road junction via Tekri village to give by-pass to Police Lines.\" The plan Ex. 80 prows that. The construction, whatever the name of the road was, remained the same road. The name is, therefore, of no moment.\n\nThe High Court held that there was no tender and that the work was split to restrict the contract to the competence of the Assistant EnJljineer. Rule 369 of the Financial and Account Rules states that it is not the intention to prevent the officers from giving out to different contractors a number oficontracts relating to one. work even though such -work may be estimated to cost C more than the amount up to which they are empowered to accept tenders. The total cost of the road wa~ approximately Rs. 20,0001for material and labour. The 8th Running Bill was for Rs. 9,473.00 and the 9th Running Bill was for Rs. l,025.00.\n\nBoth the Running Bills were pursuant to Agreement No. 15 of 1966-67 and these Bills were passed in the months of April and D May, 196'7. Tuere was a standing yearly contract to supply stones and ballast. The total labour cost for earth work, soling, consolidation of stone ballast was Rs, 7,840.75 as will appear from Ex. A/128, and Ex. A/13(} (vouchers Nos. 63 and 44) and other vouchers. It is, therefore, correct to hold that the amounf spent was within the limit and these were valid pi.ece-work agreements E and all Bills, Vouchers and Measurement Books indicate that there was no irregularity.\n\nThe High Court made some comments as to production of record for Tekri village. It stated that the record was produced after great delay. The criticism is not justified. The requisition for record was made on 15 November, 1967 and the record was sent up on 15 December, 1967. An application for summoning documents was made by the appellant on 12 Aug11, st, 1967 and an order was made on 14 August, 1967 that the appellant should re\" quisition these from the Public Works Department and the appellant made the requisition on 15 November, 1967. On 8 September, 1967 the respondent had also made a requisition ferihe iile relating to Tekri. The Executive Engineer made a slight confusion between the two requisitions.\n\nIn any event the -entire record was before the Court and none of the parties suffered from any non-production.\n\nThe High Court held that Ex. Al 130 being the agreement for soling was entered into on l April, 1967 and was a fictitious document because soling was done on 14 February, 1967 and not after 1 April, 1967. It is also important to note that entry in\n\n' '\n\nlog book Ex. 68 dated 14 February, 1967 speaks of soling and pressing by road roller over 300 feet in length on 14 February,\n\n1967. The relevant vouchers show 1that 18275 cft. ballast was spread. The ballast was 12 feet wide and 4! inches deep. The total length of the road was 4000 feet upto Tekri village.\n\nSe- condly, the relevant vouchers show that 16,722 cft. soling was laici. Soling was done .12 feet wide and six inches deep. That\n\nworked out a total road length of 2,287 feet.\n\nThus soling was not done over 1,113 feet in length. Thirdly, earth , wot~ according to the vouchers was 287 41 cft. of which 21050 cft. was carried away and rest of the excavated stuff was pressed. Some 1,281 feet long road length contained material which was excavated locally. Work started near the Jail to avoid the inconvenience to traffic on election day caused by the dug up gravel road. That is why Ex. 68 dated 14 February, 1967 is explicable as to soling for about 300 feet on that day and Ex. A/130 the agreement became effective as from 1 April, 1967. Therefore, the High Court wrongly held' that the date 1 April, 1967 on Ex. A/130 was fictitious because soling was done oil 14 February, 1967 as will appear from Ex. 68. The judgment totally overlooked that on 14 February, 1967 soling was pressed by road-roller to the extent of 300 feet. The total distance of the road from Jail to Tekri village was 3389 ft. Out.of this length 3000 ft. soling was pressed on 12 April, 1967. That is proved by Ex. 67 Jog-book entry dated 12 April, 1967.. Details of road. roller work given in Ex. 67 show that the ehne worked on the road for about 3! days for pressing soling and consolidating ballast.\n\nThe relevant Financial and Accounts Rules Nos. 330, 351 and 369 indicate that the officers could give to different contractors a number of contracts relating to one work even though such work might be estimated to cost more than the amount up to which they are empowered to accept the tenders and a distinc tion is made between Jliece-work and contract work. Piece-work is that for which only a rate is agreed upon without reference t<>' the total quantity to be done. Work below Rs. 2500/- in value is termed as petty-work. Exs. A/128 and Ex. A/130 , would come in the category of petty-work. Petty-work did not require .estimate nor tenders according to Rules 330 and 351 respcctl. vely. The Tekri road was constructed Ul\\der special repairs programme.\n\nThe High Court held that the construction of the road at Tekri was in contravention of section 72 of the Rajasthan Urban Improvement Act.\n\nThis point was not raised in the pleadings.\n\nSection 72 of the said Rajasthan Act speaks of restriction on improvement in certain areas after the coming into otieration in\n\nany area of a master plan or notification of the sanction of a A scheme. The scheme is .not in evidence. The evidence about Hiran Nagri Scheme does not prove that Tekri road was constructed in contravention of any scheme. Hiran Nagri scheme Ex. 78 is divided into 14 sectors. Tekri does not fall in any 011e of them. It is in evidence that on 31 January, 1967 the Advisory Council met for 'Preparation of a master plan. Section 2 ( 1) ( i) B of the said Rajasthan Actspeaks of amenity as including a road and section 2(1) (vi) speaks of improvement meaning operations over or under land. A road cannot be an improvement and therefore section 72 of the Act may not apply. These matters appear to be beside the principal point for consideration as to whether there was any meeting and whether the respondent c Sukhadia told the voters who were mostly Gujars that if they did not -vote for th.e appellant then the Kachha road in their locality would never be metalled.\n\nThe High Court held that there was no evidence that it was the respondent Sukhadia who got the work on Tekri road started by Chhail Behari Mathur. The High Court further held that there was no evidence of bargain for voting at the election. The witnesses Phoola P.W. 25 and Madan Lal P.W. 28 who were examined to prove that the respondent made a bargain with the people of Tekri village that they would vote for him and he would .get a road constructed in Tekri village were disbelieved by the High Court. The entire evidence 'has been examined by the High Court and there was no ei!dence of bargain.\n\nThat find,- •. ~, ing is correct and we do not find any reason to take a contraJiY ' view. The various records about the construction of Tekri road indicate that this was a long standing grievance. If a roller was used on the date of the election that should not be interpreted to mean that the Chief Minister was utilising his position to obtain votes. Such a view would suspend and paralyse normal activities of the State. We agree with the High Court that thre was no corrupt practice.\n\nWith regard to the construction work at Tekri; counsel for the appellant emphasized three features, namely, that this was not the respondent Sukhadia's portfolio; secondly, that the cons !ruction work was in breach of law, that the Urban Improvement Trust should have done work; and thirdly. work commenced immediately after the visit of respondent Sukhadia and it was completed. before the polling date without estimates, without sanction and wihout funds. These three features were said in combination with the oral evidence of Phoola P.W. 25 and Madan Lal P.W. 28 to be full and complete evidence of the election bargain of respondent Sukhadia to obtain votes.\n\nHe have earlier referred to the agreement for earth-work for construction of road at Tekri\n\nvillage.\n\nThe work continued up to the month of May, 1967 ..\n\nThe road had been planned as early as 1966. It is not correct to say that there was no sanction for the work. There was standing yearly contract of supply of stones and ballast. Earth-work was done under different agreements.\n\nMeasurement-books and vouchers have been produced and the total value of the work was calculated to cost R.s. 20,0001-.\n\nApproximately Rs. 18,000/ • was spent.\n\nThere were two piece-work agreements .Ex. Al 128 and Ex. A/130. In addition there were items of petty-work.\n\nPetty-work did not .require any estimate.\n\nWe have also referred to the relevant rules and held that there was no contravention.\n\nThe High Court correctly rejected the evidence of Phoola and Madan Lal and came to the conclusion that there was no evidence of bargain for election.\n\nThe third corrupt practice alleged by the appellant was in connection with the covering of Nallah in Baluchistan Colony.\n\nThe. appellant alleg.d in paragraph 8 of the amended petition that the respondent Sukhadia, his election agent, other agents and. other persons with the consent of the respondent Sukhadia mis used his position as Chief Minister and ordered the Public Works -Department to construct roads and Nallah inter alia at Ward No. 27 in Baluchistan Colony. The appellant alleged that respondent Sukhadia visited that colony and induced the voters to vote for him and in turn promised to get the construction of the Nallah done in their colony. It will appear from Ex. A-31 dated\n\n30 September, 1966 that the scheme for covering of Baluchistan Colony Nallah came into existence at the instance and because of the keen interest taken in the matter by the Health and Central Committee oi the Municipal Council, Udaipur.\n\nThere was a resolution of the Sanitary and Health Committee dated 27 August, 1966 Ex. A-28 where it is recorded that unfortunate incidents took place at the Nal!ah because children fell into the Nalliih and cattle also fell in the Nallah and ther~ was insanitary' condition.\n\nThere are many documents between the years I 966 and 1967, pointin!( about the unsatisfactory and unhygienic condition of the Nallah. In the month of December. 1966. the Urban Improvement Trust noticed that the Government had refused subsidy for the coverin!( of the Nallah and request for loan was made and proportionate contribution was expected to be made by the unicipal Council and the Irrigation Department. The Chairman. Urban Improvement Trust. in Ex. A-34 dated 19 January .. 1967, wrote to the Secretary. Town Planning Depart: ment. mhmatm!( that the work of the Nallah was being started in anticipation of the Government _sanction. In Ex. 65 (252) dafed 30/31 January, 1967. the Secretary. Town Planning wrote (o\n\n,.........._,\n\n\nthe Chairman, Urban Improvement Trust, that it would not be possible for the Town Planning Department to spare the Illi>lley but he would ask th.e Chief Engineer., Health and the, matter should be discussed with the Town Planning people. Th.e Chairman in his oral evidence explained that he was quit~ surprised to\n\nsee the letter. Ex. 7-A is a telegram dated IO February, 1967.\n\nThere are various office notes on the Secretariat file being Exs. 253; 254, 255, 256, 257 and 266. In the month of February, 1967 the office notes were sent to the Municipal Local Self-Government. It appears that the Financial Commissioner did not at\n\nfirst accord his approval to the loan. The Financial Commissioner accorded sanction on 24 February, 1967 (Ex. 256). The office note of the Urban Improvement Trust on 6 March, 1967, c proposed that the matter might be placed for admmistrativ1; and tecfmical sanction and also for the acceptance of, the tender.\n\nFormal sanction Ex. A-35 was made on 31 March, 1967. In that .sanction reference is made to the letter Ex. A-'34 dated 19 January, 1967 and a telegram Ex. 7-A dated 10 February, 1967.\n\nThis telegram was described by the High Court as \"faked\" because there was then no sanction. The High Court was wrong\n\nin describing the telegram in that manner. The telegram Ex. 7-A dated 10 February, 1967 was sent by the Secretary to the Collector and Chairman of the Improvement Trust. Ex. 266 dated 10 'February, 1967, is an office note to the effect that the Chairman, Town Planning had gone to Udaipur and was asked to discuss the case regarding Nallah in Baluchistan Colony with the Chairman, Urban Improvement Trust, Ex. 253 dated 11 February, 1967 is another office note stating that recommendation for grant of loan was sent for approval to the Financial Commissioner. All these documents read in proper sequence would indicate that Ex. 7-A was a genuine telegram in anticipation of sonction.\n\nThe Financial Commissioner did not at first agree to accord his approval to the loan. The Secretary, Town Planning, again moved the Financial Commissioner for sanction. The Financial Commissioner accorded sanction on 24 Fabruary, 1967 (Ex. 256)., The Minister gave his assent to the sanction of the loan on 2 March, 1967. On 6 March, 1967, the matter, according to th.e office note, was placed for administrative and technical sanction and for acceptance of the tender. On 31 March, 1967, formal sanction was given vide Ex. A-35. It appears that the covering of the Nallah in Baluchistan Colony was not an extraordinary or abnormal affair.\n\nIt may be stated here that respondent Sukhadia resigned from his office on 13 March, 1967 and President's Ru1e was imposed, which continued till 26 April,\n\n1967. The .sanction was given at a time when respondent sukhadia was not in office. A revised sanction was made on\n\nF -\n\n27 June, 1967 (Ex. A-38). Tenders for c; wering of the Nallah had been asked for by Ex. A-39 dated 29 December, 1966.\n\nEx. I 09 is an address presented to the respondent Sukhadia on behalf of the refugees of Baluchistan and Jacobabad Colonies at a public meeting at Salatia Grounds on 5 February, 1967.\n\nThis address does not make any reference to the covering of the Nallah. If the respondent Sukhadia had made any promise to that tenor on 31 January, 1967 or prior to 10 February, 1967, it would have found mention in the address.\n\nThe Urban Improvement Trust had one part-time Executive Engine;; r, Chhail Behari Mathur. His real job was that of Executive Engineer, P.W.D., \\, Jdaipur.\n\nThe decisions in the Ufban Improvement Trust were usually taken by the Chairman and the Executive Engineer.\n\nThe appellant in his oral evidence said that when he was Vice Prsident of the Municipality and also a Member of the Urban Improvement Trust, it was felt necessary to cover the Nallah. The proceedings of the Urban Improvement Trust in the year 1966 will show such cours, e of iiction to be correct.\n\nThe Urban Improvement Trust Resolution of 21 S.p tember, 1966 stated that money was being arranged for and would be forthcoming before the liability arises. Rule 375(a) of the Public Works Department Financial and Accounts Rules inter-alia states that until an assurance has been received from the authority competent to provide funds work could be undertaken because such funds will be allotted before the liability matures. If th.e Urban Improvement Trust had to spend a sum over and above the budgeted provision in the course of the year a supplementary budget was to be passed. Again Rule 375 (b) it is stated that whether on ground of urgency or otherwise if an officer is required to carry out a work for which no appropriation exists, the officer is directed to intimate to the Accountant General when he is incurring a liability in which no appropriation has been made in the budget. Therefore, an officer incurring the expenditure will take immediate steps by addressing . the appropriate competent authority to obtain orders either to stop work or regularise its execution. That is why, K. K. Joshi, Chairman of the_ Urban. Improvement Trust informed on 19 January, 1967 that he was starting the work in anticipation of Government sanction (See Ex. A-34).\n\nInviting tenders could not have been postponed to a date when the loan came in hands of the Urban Improvement Trust.\n\nWhen tenders were opened on 17 January, 1967, the tender <)f\n\nSanganeria Brothers was the lowest and it was orally accepted.\n\nThe actual contract was entered into after the Urban Improvement Trust gave formal sanction on 13 April, 1967. The Urban\n\nImprovement Trust framed its own scheme. \"Expenditure sanction\" is not required in the Urban Improvement Trust because Resolution for work would amount to sanction in anticipation of allotment of funds. Rule 318 of P.W.D. Rules requires that the proposals are structually sound and estimates are accurately calculated. Chhail Behari Mathur prepared the scheme, estimates, designs and plans. He was the highest technical person in the Urban Improvement Trust.\n\nWhen Urban Impovement Trust decided to execute the scheme it looked for money. The Local Self-Government Secretary on 8 January, 1967 assured the loan.\n\nThe Town Planning Department approved the sc]J.me. The approval meant approval for raising the money. The Secretary, Town Planning Department was also the Secretary of the Local Self-Government Department.\n\nThe Local Self-Government De partment, Town Planning, and Public Health Department really formed one Unit it! the Secretariat. Though tenders were opened on 17 January, 1967 formal contract was signed after the date.\n\nThough the work l; lad started in February, 1967 it was stopped for. some time. The work orderwas dated 29 March, 1967 and the work was completed on 2.~ November, 1967. The tender notice gave 8 months for completion of work. There was a Conference at the Secretariat between the Chief Town Planner, Secretary and Deputy Secretary of the Town Planning Department on 10 February, 1967. They decided to sanction Rs. 60,000/- out of Land Acquisition and Development Fund. Therefore, as far as the Joan was concerned the Department had only to obtain the concurrence of the Finance Department. The Accounts Officer therefore sent a telegram Ex. 7 -A that sanction was accorded for loan and formal sanction would follow. Rule 50 of the General Financial and Accounts Rules states that where it is desired to sanction expenditure before the funds have been communicated, the authority proceeds in a cautious manner by stating : \"subject to the funds to be communicated in budget of the year.\" The Accounts Officer was careful in indicating that a telegram was not a formal order for sanction and something was yet to be done.\n\nThe ultimate sanction was issued on 31 March, 1967. The Urban\n\nImprovement Trust on 15 April, 1967 paid the first running bill amounting to Rs. 52,466.60.\n\nOn the entire evidence it was apparent that there was urgency of the work.\n\nThe Municipality felt the urgency.\n\nThe resolution of the Municipality Ex. A-28 asked the Urban Improvement Trust to act forthwith in the matter of covering of the Nallah.\n\nWhen the scheme Ex. A-31 was sent to the Town Planning Depai:tment, copy was sent to the Chief Minister as well as the Law Mijiister. This was between the months of September and November, 1966. Reminder was sent in the month of January. 1967\n\nto the Chief Minister. The respondent Sukhadia said that the scheme was brought to his notice. Sometime in the month of December 1966 the respondent Sukhadia pointed out to the Chief Enneer, Health about the bad condition of the Nal!ah and expressed desire for improvement. It, therefore, follows that the respondent Sukhadia was shown the scme once in te month of December, 1966 and the only observauon made by hllil was that there should be improvement.\n\nThis was ordinary official duty done by the respondent Sukhadia. It is impossible to impute any motive whatsoever to the respondent Sukhadia that he was guided by any corrupt motive for any election bargaining.\n\nWhen the Urban Improvement Trust was trying to get revival of the lapsed sanction in the month of June, 1967, the matter again came to the respondent Sukhadia. This was too far removed from the election date to have any connection or relovance therewith.\n\nIt was suggested that file Ex. 247 was tampered and that a small slip had been pasted between note 113 and note 114. The word 'issued' is written on that slip. Before the slip was pasted the words were \"draft vetted D. S. may also see as it is important matter\". The contents would show that the draft was \"vetted\" and the note was irrelevant and this was again in the month of January, 1967 long before the election. So, the pasting of the slip was also an ordinary routine affair. In cross-examination. of the respondent SuJr.hadia it was suggested that the words below the slip were \"as desired by Chief Minister on phone sanction may be accorded.\" The words can be seen on the original and the suggestion is baseless.\n\nThe appe!lant's allegation against the respondent Sukhadia as to installation of public water-taps is l>ased on paragraph 11 of the amended petition. The appellant alleged that the respondent by exercising his influence as Chief Minister got SO public water-taps installed in different localities, of Udaipur City Constituency two or three days before the poll. The respondent did not admit the allegations. The High Court caine to'lhe conclusion that the documentary evidence on record did not warrant a finding that the respondent got the public hydrants insta!led by the exercise , of his influence.\n\nWe have not found any reason to hold that the High Court was in error.\n\nThe last allegation on which the appellant relied as an ins~ tance of corrupt practice was Ex. 8, which was a leaflet. The H leaflet contained a statement \"The Vice-President of Jan Sangh Shri Bhanu Kumar Shastri too:\\': illegal possession of Government land in Shivaji Nagar by force and left a road of 9 ft. width only\". '-PIS Sup. C.l./71\n\nIt was said that the statement of fact related to the personal character and conduct of the petitioner and was, therefore, an offence within the meaning of section 123(4) and section IOO(B) of the Representation of the People Act. The High Court held that the statement of fact contained in Ex. 8 that Bhanu Kumar Shastri encroched on government land and constructed his house at Shivaji Nagar was false and the respondent Sukhadia believed the statement to be false. The High Cout also held that the statement related to the personal character of Bhanu Kumar Shastri but it was not reasonably calculated to prejudice 1the prospects of his election and the leaflet was not printed or distributed with the consent of the respondenrt Sukhadia or his election agent. Counsel for the appellant relied on the evidence of Bhagwati Lal Bhat and Girdhari Lal Sharma to cont.end that the respondent was responsible for the printing. Bhagwati Lal Bhat is R.W. 36 and Girdhari Lal Sharma is R.W. 2. Bhagwati Lal Bhat said that he was Secretary, District Congress Committee, Udaipur at the relevant time and he used ito get leaflets printed for election propaganda. He also said that be got Ex. 8 printed at Krishna Printing Press and Madho Lal agent of Bhuleshwar Mina asked him to get the same printed. Girdhari Lal Sharma was the election agent of respondent Sukhadia. He said that work for the respondent Sukhadia and Bhuleshwar Mina, who was a Parliamentary candidate from the same' constituency w; s carried on from the same office. Girdhari Lal Sharma used to draft leaflets and pamphlets which were published for the election campaign of the respondent Sukhadia. Madho Lai used to get leaflets and pamphlets for the election campaign of Bhuiesbwar Mina printed. The election propaganda by the District Congress Committee according to Girdhari Lal Sharma was in the charge of Bhagwat Lai Bhat.\n\nCounsel for the appellant invited us to hold on the evidence F that Ex. 8 was printed by the respondent Sukhadia's election agent and with his consent. The appellant in his oral evidence said that the respondent Sukhadia got Ex. 8 printed at the press of bis election agent, Girdhari Ia!. It was rtot alleged in the petition' that the respondent or Girdhari Lal got the leaflet printed.\n\nNeither in 'the petition nor in evidence, knowledge or consent of Girdhari Lai is aileged about printing the pamphlet Ex. 8.\n\nGirdhari Lal said that he came to know of the leaflet only after\n\nhe had received a copy of the election petition. This was not challenged in cross-examination of Girdhari Lai nor was it suggested that the printing of the pamphlet was done at his press H with the knowledge or consent of Girdhari Lal. The only allegation in the petition was that the leaflet was published in the Krishna Printing Press of Girdhari Lal. Girdhari Lal also said\n\nA that he did not sit at his press in the months of December, 1966 and January and Febrnary, 1967. Girdhari Lal's Manager, Babu Lal used to maintain the accounts and look after the business of the press during those months. It was never suggested to Gir dhari Lal that the le!lftet was printed with his knowledge or consent. Bhagwati Prashad Bhatt and Madho Lal gave evidence on B behalf of the respondent.\n\nBhagwati Prasad said that the leaflet was printed by him for the District Congress Committee.\n\nThe High Court correctly held that neither the respondent nor his election agent, Girdhari Lal got the leaflet Ex. 8 printed or gave consent to its being printed and further that it could not be held that the respondent or his agent had knowledge of the distribu C tion of the leaflet.\n\nAs to distribution of the pamphlets, the appellant originally mentioned no particular persons as distributors but after amendment, three persons, namely, Hanuman Prashad, Bhagwati Prashad Bhat and Isthiak Ahmed were mentiond as distributors.\n\nD There is no evidence that Girdhari Lal distributed the leaflet.\n\nIn paragraph 15 of the petition, the appellant alleged that the respondent addressed meetings at Dholi Basri and l\\Wti Chohtta on 10 February, 1967 where the respondent orally made defa- . matory statement about the appellant making an encroachment upon the Government lnd. Narain Lal and Shanker Singh gave E evidence on behalf of the appel!ant and said .that the respondent in their presence made the statement that the appellant had cons tructed a house on Government land. The High Court did not accept the oral evidence on behalf of the appellant. Counsel for the appellant submitted that though the respondent denied that he held a meeting at Dholi Basri and Moti Chohtta on 10 Febru- F ary, 1967, there was mention of meetings at those places in th11 police report.\n\nThe High Court held that the res11ondent might have contacted the people at the places mentioned but re.iected the appellant's version that the respondent said that the appellant had encroached upon the Government land. We do not see any\n\nreason to take a different view.\n\nG Counsel on behalf of the appellant contended tha• it was not open !O the responent to challenge several findings of fact by the High Cort agamst the respondent without preferring an appeal.\n\nSections 1 l 6A, 1 l 6B and 116C of the Representation of the People Act deal with appeals, stay of operation of the order by !he Court and procedure in an appeal respectively.\n\nUnder H section l 16A, appeals shall lie to this Court on any question whether o~ law or fact fr?m every order made by the High Court under section 98 or section 99 of the Representation of the People Act.\n\nSections 98 and 99 speak of orders on the election\n\npetition. Section 98 speaks of orders dismissing the election Retition or declaring the election to be void or declaring the election of a returned candidate to be void and the petitioner to have beeµ duly elected. Section 99 speaks of orders recoroing finding of commission of corrupt practice and names of persons who were guilty of corrupt practice.\n\nUnder section 116C of the Representation of the People Act the procedure in an appeal is that subject to the provisions of the Act, and ot the Rules, if any, made thereunder every appeal shall be heard and determined by this Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from the final order passed by a High Co11n in the exercise of its original jurisdiction and of the provisions of the Code of Civil Procedure and the Rules pf the Courts shall as far as possible apply in relation to such appeal.\n\nThere are no rules of this Court which have any bearing on this matter;\n\nThe provisions contained in Order 41, R. 22 of the Code of Civil Procedure are attracted by the words of sectio11i 116C of the Re- D presentation of the People Act with th.e result that the respondent may support the decision and judgment on any ground decided against him: This Court in Ramanbhai Ashabhai Patel v. Dab/zi Ajitkumar Fulsinji & Ors.( 1), negatived the contention that the\n\nreswndent was not competent to challenge the correctness of a finding as he had not preferred an appeal and said \"We cannot E lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment\".\n\nIn the recent case in T, N. Angami v. Smt. Ravalu Reno M.\n\nS/zaiza (Civil Appeal) No. 1125 of 1970) thi.s Court in the judgment dated 21 January 1971 reiterated the views expressed in the case, of Ramanbhai Ashabhai Patel (supra).\n\nThere is an additional reason for allowing the respondent to support the judgment even on findings against the respondent, specially when it appears that the High Court has not taken into consideration the entire documentary and oral evidence in arriving at a finding. If the High Court has overlooked important and cT?dal documents or oral evidece, such evidence will justify\n\nthis Court to support the 9ontenuons of the respondent that the findings of fact arrived at by the High Court are against clear and cogent proof of facts. This Court wiJI, therefore, be justified\n\n(I) [1965] l S.C.R. 712\n\nin recording the correct findings on ample and abundant. materials which have been overlooked and ignored by th.e High Court. In the present case, we have had occasion to deal with these aspects on the rival contentions and recorded our findings.\n\nIt was said on behalf of the appellant that under s. 123 of the Representation of the People Act, bargain was not necessarily an ingredient of corrupt practice of bribery. The onus of proof of corrupt practice is on the appellant. Allegation of corrupt practice is of a serious nature.\n\nIn Ghasi Ram v,. DaJ Singh & Others(') and Om Prabha Jain\n\nv. Abhash Chand & Anr.('), this Court considered acts of Ministers, who were candidates at elections in relation to using discretionary fund on the eve of the election. Two propositions were established. First, \"the position of a Minister is difficult.\n\nIt is obvious that he cannot cease to function when his election is due.\n\nHe must of necessity attend to the grievances, otherwise he must fail. He must improve the image of his administration before the public. If everyone of his official acts done bonafide is to be construed against him and an ulterior motive is spelled out of them, the administration must necessarily come to a stand-still . . . . . . . . . . . . . . . . . . . . With an election in the near future, the political party had to do acts of a public nature. The grants of discretionary grants(sic) were part of the general scheme to better community development projects and to remove the immediate grievances of the public. The money was required to be spent in 3 months' time. The action of the Minister had often th.e c_oncurrence and recommendations of his subordinate -staff.\n\nIris for this reason that the orders about the improvement of the supply of waters were not pressed. They were incapable of being construed against the first respondent.\n\nTherefore, emphasis wondent Sadia that there was no meetmg of Raigars and Harijans at Uda1pur on 5 February, 1967."}}, {"text": "Uda1pur", "label": "GPE", "start_char": 21208, "end_char": 21215, "source": "ner", "metadata": {"in_sentence": "The\n\ndocuµie.ntary evidence fortifies th~ oral evidence of resj>ondent Sadia that there was no meetmg of Raigars and Harijans at Uda1pur on 5 February, 1967."}}, {"text": "Keshtilal", "label": "OTHER_PERSON", "start_char": 21679, "end_char": 21688, "source": "ner", "metadata": {"in_sentence": "On the contrary the order dated 5 February, 1967 is nothing but a noting by the Chief Minister on the file which had been tarted pusuant to fre order of the Government in the year 1959 and occasioned more so because of the application made by Keshtilal in the month of December, 1966.", "canonical_name": "Keshtilal"}}, {"text": "5 Febru- F ary, 1967", "label": "DATE", "start_char": 22656, "end_char": 22676, "source": "ner", "metadata": {"in_sentence": "D. had no jurisdiction: and further that the respondent held a meeting on 5 Febru- F ary, 1967, and during his speech said that he was arranging for construction of roads and installation of water-taps and requested the people to vote for him."}}, {"text": "Tekri village", "label": "GPE", "start_char": 23445, "end_char": 23458, "source": "ner", "metadata": {"in_sentence": "When the Police Lines were constructed a short H link route to Tekri village was closed: Therefore, it was decided io construct an approach road to Tekri."}}, {"text": "Chhail Behari Mathur", "label": "OTHER_PERSON", "start_char": 24263, "end_char": 24283, "source": "ner", "metadata": {"in_sentence": "In the original petition the appellant alleged that the Executive Engineer Chhail Behari Mathur canvassed votes to support respondent Sukhadia.", "canonical_name": "Chhail Beha!'i Mathur"}}, {"text": "Chhail Beha!'i Mathur", "label": "OTHER_PERSON", "start_char": 24383, "end_char": 24404, "source": "ner", "metadata": {"in_sentence": "In the amended petition the appellant alleged that Chhail Beha!'i Mathur at thl: instance of the respondent Sukhadia passed orc!ers for construction of roads.", "canonical_name": "Chhail Beha!'i Mathur"}}, {"text": "Madan Lal", "label": "OTHER_PERSON", "start_char": 24681, "end_char": 24690, "source": "ner", "metadata": {"in_sentence": "Madan Lal, Chairman of the Municipality and a witness on behalf of the appellant could not point any road construction by the Municipality after 28 December, 1959, when Tekri~ was included in it."}}, {"text": "28 December, 1959", "label": "DATE", "start_char": 24826, "end_char": 24843, "source": "ner", "metadata": {"in_sentence": "Madan Lal, Chairman of the Municipality and a witness on behalf of the appellant could not point any road construction by the Municipality after 28 December, 1959, when Tekri~ was included in it."}}, {"text": "Phoola", "label": "WITNESS", "start_char": 24897, "end_char": 24903, "source": "ner", "metadata": {"in_sentence": "Two other witnesses Phoola P.W. 25 and Madan Lal P.W. 28 said that the road at Tekri was completed two or three days before the polling."}}, {"text": "Madan Lal", "label": "WITNESS", "start_char": 24916, "end_char": 24925, "source": "ner", "metadata": {"in_sentence": "Two other witnesses Phoola P.W. 25 and Madan Lal P.W. 28 said that the road at Tekri was completed two or three days before the polling."}}, {"text": "Baniara Samiti", "label": "OTHER_PERSON", "start_char": 25602, "end_char": 25616, "source": "ner", "metadata": {"in_sentence": "A/125 was the Agreement dated 3 September 1965 for oonsmiction of road\n\nby Baniara Samiti in the year 1965 Ex.", "canonical_name": "Baniara Samiti"}}, {"text": "Banjara Samiti", "label": "OTHER_PERSON", "start_char": 25676, "end_char": 25690, "source": "ner", "metadata": {"in_sentence": "A/126 is a letter of complaint by the Banjara Samiti against the hindrance by the Police.", "canonical_name": "Baniara Samiti"}}, {"text": "10 April, 1967", "label": "DATE", "start_char": 26114, "end_char": 26128, "source": "ner", "metadata": {"in_sentence": "A/ 127 dated 10 April, 1967 bdng estimate for the road it will appear that whon the short link to Tekri village disappeared in Police Lines it was intended to build \"approach road to Tekri\" which was shown on a plan Ex."}}, {"text": "12 Aug11, st, 1967", "label": "DATE", "start_char": 28392, "end_char": 28410, "source": "ner", "metadata": {"in_sentence": "An application for summoning documents was made by the appellant on 12 Aug11, st, 1967 and an order was made on 14 August, 1967 that the appellant should re\" quisition these from the Public Works Department and the appellant made the requisition on 15 November, 1967."}}, {"text": "15 November, 1967", "label": "DATE", "start_char": 28573, "end_char": 28590, "source": "ner", "metadata": {"in_sentence": "An application for summoning documents was made by the appellant on 12 Aug11, st, 1967 and an order was made on 14 August, 1967 that the appellant should re\" quisition these from the Public Works Department and the appellant made the requisition on 15 November, 1967."}}, {"text": "September, 1967", "label": "DATE", "start_char": 28597, "end_char": 28612, "source": "ner", "metadata": {"in_sentence": "On 8 September, 1967 the respondent had also made a requisition ferihe iile relating to Tekri."}}, {"text": "14 February, 1967", "label": "DATE", "start_char": 29035, "end_char": 29052, "source": "ner", "metadata": {"in_sentence": "Al 130 being the agreement for soling was entered into on l April, 1967 and was a fictitious document because soling was done on 14 February, 1967 and not after 1 April, 1967."}}, {"text": "1 April, 1967", "label": "DATE", "start_char": 29067, "end_char": 29080, "source": "ner", "metadata": {"in_sentence": "Al 130 being the agreement for soling was entered into on l April, 1967 and was a fictitious document because soling was done on 14 February, 1967 and not after 1 April, 1967."}}, {"text": "14 February,\n\n1967", "label": "DATE", "start_char": 29243, "end_char": 29261, "source": "ner", "metadata": {"in_sentence": "68 dated 14 February, 1967 speaks of soling and pressing by road roller over 300 feet in length on 14 February,\n\n1967."}}, {"text": "12 April, 1967", "label": "DATE", "start_char": 30591, "end_char": 30605, "source": "ner", "metadata": {"in_sentence": "soling was pressed on 12 April, 1967."}}, {"text": "section 72", "label": "PROVISION", "start_char": 31662, "end_char": 31672, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 72", "label": "PROVISION", "start_char": 31759, "end_char": 31769, "source": "regex", "metadata": {"statute": null}}, {"text": "31 January, 1967", "label": "DATE", "start_char": 32230, "end_char": 32246, "source": "ner", "metadata": {"in_sentence": "It is in evidence that on 31 January, 1967 the Advisory Council met for 'Preparation of a master plan."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 32307, "end_char": 32316, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(1)", "label": "PROVISION", "start_char": 32396, "end_char": 32408, "source": "regex", "metadata": {"statute": null}}, {"text": "section 72", "label": "PROVISION", "start_char": 32521, "end_char": 32531, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20", "label": "PROVISION", "start_char": 35099, "end_char": 35104, "source": "regex", "metadata": {"statute": null}}, {"text": "Phoola", "label": "OTHER_PERSON", "start_char": 35442, "end_char": 35448, "source": "ner", "metadata": {"in_sentence": "The High Court correctly rejected the evidence of Phoola and Madan Lal and came to the conclusion that there was no evidence of bargain for election."}}, {"text": "Nallah", "label": "GPE", "start_char": 36306, "end_char": 36312, "source": "ner", "metadata": {"in_sentence": "A-31 dated\n\n30 September, 1966 that the scheme for covering of Baluchistan Colony Nallah came into existence at the instance and because of the keen interest taken in the matter by the Health and Central Committee oi the Municipal Council, Udaipur."}}, {"text": "27 August, 1966", "label": "DATE", "start_char": 36540, "end_char": 36555, "source": "ner", "metadata": {"in_sentence": "There was a resolution of the Sanitary and Health Committee dated 27 August, 1966 Ex."}}, {"text": "19 January .. 1967", "label": "DATE", "start_char": 37221, "end_char": 37239, "source": "ner", "metadata": {"in_sentence": "A-34 dated 19 January .. 1967, wrote to the Secretary."}}, {"text": "24 February, 1967 (", "label": "DATE", "start_char": 38209, "end_char": 38228, "source": "ner", "metadata": {"in_sentence": "The Financial Commissioner accorded sanction on 24 February, 1967 (Ex."}}, {"text": "6 March, 1967", "label": "DATE", "start_char": 38288, "end_char": 38301, "source": "ner", "metadata": {"in_sentence": "The office note of the Urban Improvement Trust on 6 March, 1967, c proposed that the matter might be placed for admmistrativ1; and tecfmical sanction and also for the acceptance of, the tender."}}, {"text": "31 March, 1967", "label": "DATE", "start_char": 38470, "end_char": 38484, "source": "ner", "metadata": {"in_sentence": "A-35 was made on 31 March, 1967."}}, {"text": "10 'February, 1967", "label": "DATE", "start_char": 38921, "end_char": 38939, "source": "ner", "metadata": {"in_sentence": "266 dated 10 'February, 1967, is an office note to the effect that the Chairman, Town Planning had gone to Udaipur and was asked to discuss the case regarding Nallah in Baluchistan Colony with the Chairman, Urban Improvement Trust, Ex."}}, {"text": "Baluchistan", "label": "GPE", "start_char": 39080, "end_char": 39091, "source": "ner", "metadata": {"in_sentence": "266 dated 10 'February, 1967, is an office note to the effect that the Chairman, Town Planning had gone to Udaipur and was asked to discuss the case regarding Nallah in Baluchistan Colony with the Chairman, Urban Improvement Trust, Ex."}}, {"text": "11 February, 1967", "label": "DATE", "start_char": 39157, "end_char": 39174, "source": "ner", "metadata": {"in_sentence": "253 dated 11 February, 1967 is another office note stating that recommendation for grant of loan was sent for approval to the Financial Commissioner."}}, {"text": "24 Fabruary, 1967 (", "label": "DATE", "start_char": 39639, "end_char": 39658, "source": "ner", "metadata": {"in_sentence": "The Financial Commissioner accorded sanction on 24 Fabruary, 1967 (Ex."}}, {"text": "Jdaipur", "label": "GPE", "start_char": 41020, "end_char": 41027, "source": "ner", "metadata": {"in_sentence": "His real job was that of Executive Engineer, P.W.D., \\, Jdaipur."}}, {"text": "Ufban Improvement Trust", "label": "ORG", "start_char": 41051, "end_char": 41074, "source": "ner", "metadata": {"in_sentence": "The decisions in the Ufban Improvement Trust were usually taken by the Chairman and the Executive Engineer."}}, {"text": "K. K. Joshi", "label": "OTHER_PERSON", "start_char": 42535, "end_char": 42546, "source": "ner", "metadata": {"in_sentence": "That is why, K. K. Joshi, Chairman of the_ Urban."}}, {"text": "19 January, 1967", "label": "DATE", "start_char": 42602, "end_char": 42618, "source": "ner", "metadata": {"in_sentence": "Improvement Trust informed on 19 January, 1967 that he was starting the work in anticipation of Government sanction (See Ex."}}, {"text": "17 January, 1967", "label": "DATE", "start_char": 42851, "end_char": 42867, "source": "ner", "metadata": {"in_sentence": "When tenders were opened on 17 January, 1967, the tender <)f\n\nSanganeria Brothers was the lowest and it was orally accepted."}}, {"text": "Sanganeria Brothers", "label": "ORG", "start_char": 42885, "end_char": 42904, "source": "ner", "metadata": {"in_sentence": "When tenders were opened on 17 January, 1967, the tender <)f\n\nSanganeria Brothers was the lowest and it was orally accepted."}}, {"text": "13 April, 1967", "label": "DATE", "start_char": 43044, "end_char": 43058, "source": "ner", "metadata": {"in_sentence": "The actual contract was entered into after the Urban Improvement Trust gave formal sanction on 13 April, 1967."}}, {"text": "Urban\n\nImprovement Trust", "label": "ORG", "start_char": 43064, "end_char": 43088, "source": "ner", "metadata": {"in_sentence": "The Urban\n\nImprovement Trust framed its own scheme. \""}}, {"text": "Urban Impovement Trust", "label": "ORG", "start_char": 43536, "end_char": 43558, "source": "ner", "metadata": {"in_sentence": "When Urban Impovement Trust decided to execute the scheme it looked for money."}}, {"text": "8 January, 1967", "label": "DATE", "start_char": 43649, "end_char": 43664, "source": "ner", "metadata": {"in_sentence": "The Local Self-Government Secretary on 8 January, 1967 assured the loan."}}, {"text": "29 March, 1967", "label": "DATE", "start_char": 44213, "end_char": 44227, "source": "ner", "metadata": {"in_sentence": "The work orderwas dated 29 March, 1967 and the work was completed on 2.~ November, 1967."}}, {"text": "2.~ November, 1967", "label": "DATE", "start_char": 44258, "end_char": 44276, "source": "ner", "metadata": {"in_sentence": "The work orderwas dated 29 March, 1967 and the work was completed on 2.~ November, 1967."}}, {"text": "15 April, 1967", "label": "DATE", "start_char": 45313, "end_char": 45327, "source": "ner", "metadata": {"in_sentence": "The Urban\n\nImprovement Trust on 15 April, 1967 paid the first running bill amounting to Rs."}}, {"text": "SuJr.hadia", "label": "RESPONDENT", "start_char": 47326, "end_char": 47336, "source": "ner", "metadata": {"in_sentence": "of the respondent SuJr.hadia it was suggested that the words below the slip were \"as desired by Chief Minister on phone sanction may be accorded.\""}}, {"text": "Bhanu Kumar Shastri", "label": "PETITIONER", "start_char": 48395, "end_char": 48414, "source": "ner", "metadata": {"in_sentence": "The H leaflet contained a statement \"The Vice-President of Jan Sangh Shri Bhanu Kumar Shastri too:\\': illegal possession of Government land in Shivaji Nagar by force and left a road of 9 ft.", "canonical_name": "BHANU KUMAR SHASTRI"}}, {"text": "Shivaji Nagar", "label": "GPE", "start_char": 48464, "end_char": 48477, "source": "ner", "metadata": {"in_sentence": "The H leaflet contained a statement \"The Vice-President of Jan Sangh Shri Bhanu Kumar Shastri too:\\': illegal possession of Government land in Shivaji Nagar by force and left a road of 9 ft."}}, {"text": "section 123(4)", "label": "PROVISION", "start_char": 48701, "end_char": 48715, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 48742, "end_char": 48774, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bhagwati Lal Bhat", "label": "WITNESS", "start_char": 49361, "end_char": 49378, "source": "ner", "metadata": {"in_sentence": "Counsel for the appellant relied on the evidence of Bhagwati Lal Bhat and Girdhari Lal Sharma to cont.end that the respondent was responsible for the printing."}}, {"text": "Girdhari Lal Sharma", "label": "WITNESS", "start_char": 49383, "end_char": 49402, "source": "ner", "metadata": {"in_sentence": "Counsel for the appellant relied on the evidence of Bhagwati Lal Bhat and Girdhari Lal Sharma to cont.end that the respondent was responsible for the printing."}}, {"text": "District Congress Committee, Udaipur", "label": "ORG", "start_char": 49579, "end_char": 49615, "source": "ner", "metadata": {"in_sentence": "Bhagwati Lal Bhat said that he was Secretary, District Congress Committee, Udaipur at the relevant time and he used ito get leaflets printed for election propaganda."}}, {"text": "Krishna Printing Press", "label": "ORG", "start_char": 49741, "end_char": 49763, "source": "ner", "metadata": {"in_sentence": "8 printed at Krishna Printing Press and Madho Lal agent of Bhuleshwar Mina asked him to get the same printed."}}, {"text": "Madho Lal", "label": "OTHER_PERSON", "start_char": 49768, "end_char": 49777, "source": "ner", "metadata": {"in_sentence": "8 printed at Krishna Printing Press and Madho Lal agent of Bhuleshwar Mina asked him to get the same printed.", "canonical_name": "Madho Lal"}}, {"text": "Bhuleshwar Mina", "label": "OTHER_PERSON", "start_char": 49787, "end_char": 49802, "source": "ner", "metadata": {"in_sentence": "8 printed at Krishna Printing Press and Madho Lal agent of Bhuleshwar Mina asked him to get the same printed.", "canonical_name": "Bhuleshwar Mina"}}, {"text": "Girdhari Lal Sharma", "label": "RESPONDENT", "start_char": 49838, "end_char": 49857, "source": "ner", "metadata": {"in_sentence": "Girdhari Lal Sharma was the election agent of respondent Sukhadia.", "canonical_name": "Girdhari Lal Sharma"}}, {"text": "Madho Lai", "label": "OTHER_PERSON", "start_char": 50204, "end_char": 50213, "source": "ner", "metadata": {"in_sentence": "Madho Lai used to get leaflets and pamphlets for the election campaign of Bhuiesbwar Mina printed.", "canonical_name": "Madho Lal"}}, {"text": "Bhuiesbwar Mina", "label": "OTHER_PERSON", "start_char": 50278, "end_char": 50293, "source": "ner", "metadata": {"in_sentence": "Madho Lai used to get leaflets and pamphlets for the election campaign of Bhuiesbwar Mina printed.", "canonical_name": "Bhuleshwar Mina"}}, {"text": "Bhagwat Lai Bhat", "label": "OTHER_PERSON", "start_char": 50416, "end_char": 50432, "source": "ner", "metadata": {"in_sentence": "The election propaganda by the District Congress Committee according to Girdhari Lal Sharma was in the charge of Bhagwat Lai Bhat."}}, {"text": "Girdhari Lai", "label": "RESPONDENT", "start_char": 50889, "end_char": 50901, "source": "ner", "metadata": {"in_sentence": "Neither in 'the petition nor in evidence, knowledge or consent of Girdhari Lai is aileged about printing the pamphlet Ex.", "canonical_name": "Girdhari Lal Sharma"}}, {"text": "Babu Lal", "label": "OTHER_PERSON", "start_char": 51516, "end_char": 51524, "source": "ner", "metadata": {"in_sentence": "Girdhari Lal's Manager, Babu Lal used to maintain the accounts and look after the business of the press during those months."}}, {"text": "Gir dhari Lal", "label": "RESPONDENT", "start_char": 51643, "end_char": 51656, "source": "ner", "metadata": {"in_sentence": "It was never suggested to Gir dhari Lal that the le!lftet was printed with his knowledge or consent.", "canonical_name": "Girdhari Lal Sharma"}}, {"text": "Bhagwati Prashad Bhatt", "label": "OTHER_PERSON", "start_char": 51718, "end_char": 51740, "source": "ner", "metadata": {"in_sentence": "Bhagwati Prashad Bhatt and Madho Lal gave evidence on B behalf of the respondent.", "canonical_name": "Bhagwati Prashad Bhatt"}}, {"text": "Bhagwati Prasad", "label": "OTHER_PERSON", "start_char": 51801, "end_char": 51816, "source": "ner", "metadata": {"in_sentence": "Bhagwati Prasad said that the leaflet was printed by him for the District Congress Committee.", "canonical_name": "Bhagwati Prashad Bhatt"}}, {"text": "Hanuman Prashad", "label": "OTHER_PERSON", "start_char": 52337, "end_char": 52352, "source": "ner", "metadata": {"in_sentence": "As to distribution of the pamphlets, the appellant originally mentioned no particular persons as distributors but after amendment, three persons, namely, Hanuman Prashad, Bhagwati Prashad Bhat and Isthiak Ahmed were mentiond as distributors."}}, {"text": "Bhagwati Prashad Bhat", "label": "OTHER_PERSON", "start_char": 52354, "end_char": 52375, "source": "ner", "metadata": {"in_sentence": "As to distribution of the pamphlets, the appellant originally mentioned no particular persons as distributors but after amendment, three persons, namely, Hanuman Prashad, Bhagwati Prashad Bhat and Isthiak Ahmed were mentiond as distributors.", "canonical_name": "Bhagwati Prashad Bhatt"}}, {"text": "Isthiak Ahmed", "label": "OTHER_PERSON", "start_char": 52380, "end_char": 52393, "source": "ner", "metadata": {"in_sentence": "As to distribution of the pamphlets, the appellant originally mentioned no particular persons as distributors but after amendment, three persons, namely, Hanuman Prashad, Bhagwati Prashad Bhat and Isthiak Ahmed were mentiond as distributors."}}, {"text": "Narain Lal", "label": "OTHER_PERSON", "start_char": 52767, "end_char": 52777, "source": "ner", "metadata": {"in_sentence": "Narain Lal and Shanker Singh gave E evidence on behalf of the appel!ant and said .that the respondent in their presence made the statement that the appellant had cons tructed a house on Government land."}}, {"text": "Shanker Singh", "label": "OTHER_PERSON", "start_char": 52782, "end_char": 52795, "source": "ner", "metadata": {"in_sentence": "Narain Lal and Shanker Singh gave E evidence on behalf of the appel!ant and said .that the respondent in their presence made the statement that the appellant had cons tructed a house on Government land."}}, {"text": "Dholi Basri", "label": "OTHER_PERSON", "start_char": 53142, "end_char": 53153, "source": "ner", "metadata": {"in_sentence": "Counsel for the appellant submitted that though the respondent denied that he held a meeting at Dholi Basri and Moti Chohtta on 10 Febru- F ary, 1967, there was mention of meetings at those places in th11 police report."}}, {"text": "Moti Chohtta", "label": "OTHER_PERSON", "start_char": 53158, "end_char": 53170, "source": "ner", "metadata": {"in_sentence": "Counsel for the appellant submitted that though the respondent denied that he held a meeting at Dholi Basri and Moti Chohtta on 10 Febru- F ary, 1967, there was mention of meetings at those places in th11 police report."}}, {"text": "10 Febru- F ary, 1967", "label": "DATE", "start_char": 53174, "end_char": 53195, "source": "ner", "metadata": {"in_sentence": "Counsel for the appellant submitted that though the respondent denied that he held a meeting at Dholi Basri and Moti Chohtta on 10 Febru- F ary, 1967, there was mention of meetings at those places in th11 police report."}}, {"text": "Sections 1", "label": "PROVISION", "start_char": 53733, "end_char": 53743, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 53773, "end_char": 53805, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 98", "label": "PROVISION", "start_char": 54051, "end_char": 54061, "source": "regex", "metadata": {"statute": null}}, {"text": "section 99", "label": "PROVISION", "start_char": 54065, "end_char": 54075, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 54083, "end_char": 54115, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sections 98 and 99", "label": "PROVISION", "start_char": 54118, "end_char": 54136, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 98", "label": "PROVISION", "start_char": 54180, "end_char": 54190, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 99", "label": "PROVISION", "start_char": 54385, "end_char": 54395, "source": "regex", "metadata": {"statute": null}}, {"text": "section 116C", "label": "PROVISION", "start_char": 54530, "end_char": 54542, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 54550, "end_char": 54582, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 54979, "end_char": 55006, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 55215, "end_char": 55242, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ramanbhai Ashabhai Patel", "label": "OTHER_PERSON", "start_char": 56263, "end_char": 56287, "source": "ner", "metadata": {"in_sentence": "1125 of 1970) thi.s Court in the judgment dated 21 January 1971 reiterated the views expressed in the case, of Ramanbhai Ashabhai Patel (supra)."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 57196, "end_char": 57202, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 57210, "end_char": 57242, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 59493, "end_char": 59525, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 123", "label": "PROVISION", "start_char": 59944, "end_char": 59955, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 59967, "end_char": 59999, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Raigar Colony", "label": "GPE", "start_char": 61952, "end_char": 61965, "source": "ner", "metadata": {"in_sentence": "In all the three instances relied on by the appellant at Raigar Colony, Tekri and Balµchistan Colony, it is manifest that there were long standing public grievances and the Government from time to time made\n\nsuggestions and recommendations for redress of the grievances and amelioration of the condition of the people."}}]} {"document_id": "1971_3_546_549_EN", "year": 1971, "text": "VIVIAN RODRICK\n\nSTATE OF WEST BENGAL\n\nJanuary 27, 1971\n\n[S. M. SIKRI, C.J., P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]\n\nCriminal Law-Sentence of death-Inordinate delay in disposing of appeal by High Court-If ground for awarding lesser sentence.\n\nThe accused was committed 10 1rial in July 1963 and was convicted\n\nand sentenced to death on September 4, 1964. The appeal to the High Court under s. 411A, Cr. P.C., was finally dismissed on February 6, 1970.\n\nC The High Court left it to the State Government whether it should, reduce . the sentence on account of inordinate delay. ·\n\nIn appeal to this Court on th~ quesfion of sentence,\n\nHELD : Section 302, l.P.C., prescribes two alternate sentences, namely, .. n· ·.·.·.· ... ' .. : .. ' ... • .• .r.·.: .. ,~ death sentence or imprisonment for life. When there has been inordinat~ 1 delay fa the disposal of the ap;1eal by the High Court, it is a relevant factor for the High Court to take into consideration for imposing the lesser oentence. [549 A-Bl\n\nIn the present case, the appellant has been for 6 years under the. f, ear of sentence of death, which must have caused him unimaginable mental agony.\n\nIn view of the excessive delay it is a fit case for awarding .the lesser sentence instead of leaving it to the Government to decide the matter on a mercy petition. (549 B-Dl\n\nNawab Singh v. State of U.P., A.LR. 1954 S.C. 278, referred to.\n\nCRI¥£INAL APPELLATE JURISDICTION: Criminal Appeal No. 137 of 1970.\n\nAppeal by special leave from the judgment and order dated F February 6, 1970 of the Calcutta High Court in Criminal Appeal No. 5 of 1964.\n\n0. P. Rana, for the appellant.\n\nS. P. Mitra and Sukumar Basu, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSikri, C.J. In this. case special leave was limited to the question of sentence only The relevant facts for determining this point are as f9llows : The appellant, Vivian Rodrick, was tried by the High Court of Calcutta, in exercise of its original jurisdiction, having ]J.;!en committed to stand his trial by the Presidency Magistrate as early as July 31, 1963.\n\nThe substance of the charges against the appellant were as follows :\n\nVIVIAN RODRICK V, WEST llENGAL (Sikri, C.J.) 54 7\n\n(i) that on January 13, 1963 the appellant was a member of an unlawful assembty guilty of riot ing, being armed with deadly weapons and as such punishable under section 148, I.P.C.; (ii)\n\n(iii)\n\nthat on January 13, 1963 the appellant committed the murder of one Vincent D'Rozaric and thereby committed an offence punishable under section 302, l.P .C.; and\n\nthat on January 13, 1963 the appellant was in possession of explosive substances for unlawful object and thereby committed an offence under section 5 of the Explosive Substances Act.\n\nFour other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under s. 302 read with s. 149, and also under s. 148, l.P .C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge con victed the appellant under s. 302, I.P.C., and sentenced him to death. At the trial the appellant was also convicted for offences under s. 148, I.P .C., and s. 5 of the Explosive Substances Act, and sentenced to rigorous imprisonment for two years and three years respectively. The terms of imprisonment were directed to run concurrently.\n\nThe appellant filed a petition of appeal under s. 41 lA, Cr. P.C., on September 7, 1964, challenging his conviction and the sentences imposed on him. The High Court,_ by its judgment dated September 19, 1967 in Criminal Appeal No. 5 of 1964, confirmed the conviction and sentences imposed on the aptlellant. In considering the question of sentence the High Court observed that \"the murder was a premeditated and cold-bl9oded one.\n\nThere was not the slightest provocation from the side of the deceased. This is undoubtedly a fit case for capital punishment. No question of showing any leniency on the ground of tenderness of age arises as the appellant is now aged about 35 years.\" It was urged before the High Court that the sentence of death should be reduced to rigorous imprisonment for life on account of the long delay that had taken place in hearing the appeal. Although the High Court regretted the delay and the consequent mental suffering undergone by the condemned prisoner, it felt that the \"delay in executing thl( death sentence was not by itself a sufficient-ground for which the court should exercise its jurisdiction to commute the death sentence to one of imprisonment for life.\"\n\nThe appellant sought leave to appeal to this Court against the judgment of the High Court on October 21, 1967, and the same\n\nSUPREME COURT REPORTS\n\n[1971 J 3 S.C.R.\n\nwas refused on January 8, 1968. Having obtained special leave, the appellant filed an appeal to this Court (Criminal Appel No. 190 of 1968). By its judgment dated April 30, 1969, this Court set aside the the judgment and order of the High Court, dated September 19, 1967, and remanded the appeal to the High Court for fresh disposal and hearing in accordance with law and in the light of the observations contained in this Court's judgment.\n\nThis Court in its judgment in Cr. Ap. No. 190 of 1968 observed, regarding the four other co-accused, as follows :\n\n\"Though the conviction was for an offence under section 302 read with section 149, I.P.C., curiously they were sentenced to varying terms of imprisonment, and none of them challenged their conviction in appeals.\"\n\nOn remand the appeal was again dismissed by the High Court on Feoruary 6, 1970.\n\nChakrabarti, J., with whom Amaresh Chandra Roy, J., agreed, again considered the question of sentence and held that 'although there had been a delay of more than five years in executing the death sentence that was not by itself sufficient ground for commuting the death senten~. The High Court referred to Nawab Singh v. The State of Uttar Pradesh('1) and Piare Dusadh v. King Emperor('). As the High Court did not find any extenuating circumstances whatsoever that would Justify its taking a lenient view in the matter, it left to the State Government to take a decision as to whether it should, on account of inordinate delay in executing the sentence, exercise its powers under s. 402, Cr. P.C.\n\nThe learned counsel for the appellant contends that the matter should not have been left to the State Government.\n\nIn Nawab Singh v. The State of Uttar Pradesh(''), which has been referred to F by the High Court in its judgment dated February 6, 1970, it is observed:\n\n\"It is true that in proper cases an inordinate delay in the executian of the death sentence may be regarded as a ground for commuting it, but we desire to point out that this is no rule of law and is a matter primarily for consideration of the local Government. If the Court has to ex.erci.Se a discretion in such matter, the other facts of such case would have to be taken into consideration. In the case before us, we find that the murder was a cruel and deliberate one and there was no extenuating circumstance whatsoever which would justify us in ordering a commutation of the death sentence.\"\n\n(I) A.LR. 1954 S.C. 278.\n\n(2) [1944] F.C.R. 61\n\n•r\"\n\n~ 1 .. .,. /\n\n''7\"\\ .,\n\nVIVIAN RODRICK v. WEST BENGAL (Sikri, C.J.) 54&\n\nIt seems to us that the extremely excessive delay in the dis posal of the case of the appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life under s. 302.\n\nSection 302, I.P.C., prescribes two alternate sente; Jces, namely, death sentence or imprisonment for life, and when there has been inordinate delay in the disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High Court to take into consideration for imposing the lesser sentence. In this parti cular case, as pointed out above, the appellant was committed to trial by the Presidency Magistrate as early as July, 31, 1963, and he was convicted by the Trial Judge on September 4, 1964. It is now January 1971, and the appellant has been for more than six years under the f.ear of sentence of death. This must have caused him unimaginable mental agony. In our opinion it would be inhuman to make him sulfer till the Government decid5 the matter on a mercy petition. We consider that this is now a fit case for awarding the sentence of imprisonment for life. Accordingly we accept the appeal, set aside the order of the High Court award ing death sentence and award a sentence of imprisonment for life.\n\nThe sentences under s. 148, I.P.C., and s. S of the Explosive Substances Act and under s. 302; I.P.9., shall run concurrently.\n\nV.P.S.\n\nSentence modified.", "total_entities": 57, "entities": [{"text": "VIVIAN RODRICK", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "VIVIAN RODRICK", "offset_not_found": false}}, {"text": "STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 16, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "January 27, 1971", "label": "DATE", "start_char": 38, "end_char": 54, "source": "ner", "metadata": {"in_sentence": "VIVIAN RODRICK\n\nSTATE OF WEST BENGAL\n\nJanuary 27, 1971\n\n[S. M. SIKRI, C.J., P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]"}}, {"text": "S. M. SIKRI, C.J.", "label": "JUDGE", "start_char": 57, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 76, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "I. D. DuA, JJ.", "label": "JUDGE", "start_char": 100, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "s. 411A", "label": "PROVISION", "start_char": 390, "end_char": 397, "source": "regex", "metadata": {"statute": null}}, {"text": "February 6, 1970", "label": "DATE", "start_char": 434, "end_char": 450, "source": "ner", "metadata": {"in_sentence": "P.C., was finally dismissed on February 6, 1970."}}, {"text": "Section 302", "label": "PROVISION", "start_char": 639, "end_char": 650, "source": "regex", "metadata": {"statute": null}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 1602, "end_char": 1609, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellant."}}, {"text": "S. P. Mitra", "label": "LAWYER", "start_char": 1631, "end_char": 1642, "source": "ner", "metadata": {"in_sentence": "S. P. Mitra and Sukumar Basu, for the respondent."}}, {"text": "Sukumar Basu", "label": "LAWYER", "start_char": 1647, "end_char": 1659, "source": "ner", "metadata": {"in_sentence": "S. P. Mitra and Sukumar Basu, for the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 1726, "end_char": 1731, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSikri, C.J. In this."}}, {"text": "Vivian Rodrick", "label": "PETITIONER", "start_char": 1889, "end_char": 1903, "source": "ner", "metadata": {"in_sentence": "case special leave was limited to the question of sentence only The relevant facts for determining this point are as f9llows : The appellant, Vivian Rodrick, was tried by the High Court of Calcutta, in exercise of its original jurisdiction, having ]J.;!en committed to stand his trial by the Presidency Magistrate as early as July 31, 1963.", "canonical_name": "VIVIAN RODRICK"}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 1922, "end_char": 1944, "source": "ner", "metadata": {"in_sentence": "case special leave was limited to the question of sentence only The relevant facts for determining this point are as f9llows : The appellant, Vivian Rodrick, was tried by the High Court of Calcutta, in exercise of its original jurisdiction, having ]J.;!en committed to stand his trial by the Presidency Magistrate as early as July 31, 1963."}}, {"text": "VIVIAN RODRICK", "label": "JUDGE", "start_char": 2159, "end_char": 2173, "source": "ner", "metadata": {"in_sentence": "The substance of the charges against the appellant were as follows :\n\nVIVIAN RODRICK V, WEST llENGAL (Sikri, C.J.) 54 7\n\n(i) that on January 13, 1963 the appellant was a member of an unlawful assembty guilty of riot ing, being armed with deadly weapons and as such punishable under section 148, I.P.C.; (ii)\n\n(iii)\n\nthat on January 13, 1963 the appellant committed the murder of one Vincent D'Rozaric and thereby committed an offence punishable under section 302, l.P .C.; and\n\nthat on January 13, 1963 the appellant was in possession of explosive substances for unlawful object and thereby committed an offence under section 5 of the Explosive Substances Act.", "canonical_name": "VIVIAN RODRICK"}}, {"text": "section 148", "label": "PROVISION", "start_char": 2371, "end_char": 2382, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2384, "end_char": 2389, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Vincent D'Rozaric", "label": "OTHER_PERSON", "start_char": 2472, "end_char": 2489, "source": "ner", "metadata": {"in_sentence": "The substance of the charges against the appellant were as follows :\n\nVIVIAN RODRICK V, WEST llENGAL (Sikri, C.J.) 54 7\n\n(i) that on January 13, 1963 the appellant was a member of an unlawful assembty guilty of riot ing, being armed with deadly weapons and as such punishable under section 148, I.P.C.; (ii)\n\n(iii)\n\nthat on January 13, 1963 the appellant committed the murder of one Vincent D'Rozaric and thereby committed an offence punishable under section 302, l.P .C.; and\n\nthat on January 13, 1963 the appellant was in possession of explosive substances for unlawful object and thereby committed an offence under section 5 of the Explosive Substances Act."}}, {"text": "section 302", "label": "PROVISION", "start_char": 2540, "end_char": 2551, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 5", "label": "PROVISION", "start_char": 2707, "end_char": 2716, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Explosive Substances Act", "label": "STATUTE", "start_char": 2724, "end_char": 2748, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Stanley Rodrick", "label": "OTHER_PERSON", "start_char": 2771, "end_char": 2786, "source": "ner", "metadata": {"in_sentence": "Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under s. 302 read with s. 149, and also under s. 148, l.P .C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge con victed the appellant under s. 302, I.P.C., and sentenced him to death."}}, {"text": "Ranjit Mandal", "label": "OTHER_PERSON", "start_char": 2788, "end_char": 2801, "source": "ner", "metadata": {"in_sentence": "Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under s. 302 read with s. 149, and also under s. 148, l.P .C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge con victed the appellant under s. 302, I.P.C., and sentenced him to death."}}, {"text": "Simon Das", "label": "OTHER_PERSON", "start_char": 2803, "end_char": 2812, "source": "ner", "metadata": {"in_sentence": "Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under s. 302 read with s. 149, and also under s. 148, l.P .C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge con victed the appellant under s. 302, I.P.C., and sentenced him to death."}}, {"text": "Ranjit Biswas", "label": "OTHER_PERSON", "start_char": 2817, "end_char": 2830, "source": "ner", "metadata": {"in_sentence": "Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under s. 302 read with s. 149, and also under s. 148, l.P .C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge con victed the appellant under s. 302, I.P.C., and sentenced him to death."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 2894, "end_char": 2900, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 149", "label": "PROVISION", "start_char": 2911, "end_char": 2917, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 148", "label": "PROVISION", "start_char": 2934, "end_char": 2940, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "September 4, 1964", "label": "DATE", "start_char": 3027, "end_char": 3044, "source": "ner", "metadata": {"in_sentence": "Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under s. 302 read with s. 149, and also under s. 148, l.P .C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge con victed the appellant under s. 302, I.P.C., and sentenced him to death."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 3096, "end_char": 3102, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3104, "end_char": 3109, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 148", "label": "PROVISION", "start_char": 3205, "end_char": 3211, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 3226, "end_char": 3230, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Explosive Substances Act", "label": "STATUTE", "start_char": 3238, "end_char": 3262, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 41", "label": "PROVISION", "start_char": 3456, "end_char": 3461, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "September 7, 1964", "label": "DATE", "start_char": 3479, "end_char": 3496, "source": "ner", "metadata": {"in_sentence": "P.C., on September 7, 1964, challenging his conviction and the sentences imposed on him."}}, {"text": "September 19, 1967", "label": "DATE", "start_char": 3598, "end_char": 3616, "source": "ner", "metadata": {"in_sentence": "The High Court,_ by its judgment dated September 19, 1967 in Criminal Appeal No."}}, {"text": "October 21, 1967", "label": "DATE", "start_char": 4700, "end_char": 4716, "source": "ner", "metadata": {"in_sentence": "The appellant sought leave to appeal to this Court against the judgment of the High Court on October 21, 1967, and the same\n\nSUPREME COURT REPORTS\n\n[1971 J 3 S.C.R.\n\nwas refused on January 8, 1968."}}, {"text": "January 8, 1968", "label": "DATE", "start_char": 4788, "end_char": 4803, "source": "ner", "metadata": {"in_sentence": "The appellant sought leave to appeal to this Court against the judgment of the High Court on October 21, 1967, and the same\n\nSUPREME COURT REPORTS\n\n[1971 J 3 S.C.R.\n\nwas refused on January 8, 1968."}}, {"text": "April 30, 1969", "label": "DATE", "start_char": 4936, "end_char": 4950, "source": "ner", "metadata": {"in_sentence": "By its judgment dated April 30, 1969, this Court set aside the the judgment and order of the High Court, dated September 19, 1967, and remanded the appeal to the High Court for fresh disposal and hearing in accordance with law and in the light of the observations contained in this Court's judgment."}}, {"text": "section 302", "label": "PROVISION", "start_char": 5378, "end_char": 5389, "source": "regex", "metadata": {"statute": null}}, {"text": "section 149", "label": "PROVISION", "start_char": 5400, "end_char": 5411, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5413, "end_char": 5418, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Feoruary 6, 1970", "label": "DATE", "start_char": 5606, "end_char": 5622, "source": "ner", "metadata": {"in_sentence": "On remand the appeal was again dismissed by the High Court on Feoruary 6, 1970."}}, {"text": "Chakrabarti", "label": "JUDGE", "start_char": 5625, "end_char": 5636, "source": "ner", "metadata": {"in_sentence": "Chakrabarti, J., with whom Amaresh Chandra Roy, J., agreed, again considered the question of sentence and held that 'although there had been a delay of more than five years in executing the death sentence that was not by itself sufficient ground for commuting the death senten~. The High Court referred to Nawab Singh v. The State of Uttar Pradesh('1) and Piare Dusadh v. King Emperor(')."}}, {"text": "Amaresh Chandra Roy", "label": "JUDGE", "start_char": 5652, "end_char": 5671, "source": "ner", "metadata": {"in_sentence": "Chakrabarti, J., with whom Amaresh Chandra Roy, J., agreed, again considered the question of sentence and held that 'although there had been a delay of more than five years in executing the death sentence that was not by itself sufficient ground for commuting the death senten~. The High Court referred to Nawab Singh v. The State of Uttar Pradesh('1) and Piare Dusadh v. King Emperor(')."}}, {"text": "s. 402", "label": "PROVISION", "start_char": 6306, "end_char": 6312, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "[1944] F.C.R. 61", "label": "CASE_CITATION", "start_char": 7222, "end_char": 7238, "source": "regex", "metadata": {}}, {"text": "s. 302", "label": "PROVISION", "start_char": 7506, "end_char": 7512, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 302", "label": "PROVISION", "start_char": 7515, "end_char": 7526, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7528, "end_char": 7533, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "31, 1963", "label": "DATE", "start_char": 7968, "end_char": 7976, "source": "ner", "metadata": {"in_sentence": "In this parti cular case, as pointed out above, the appellant was committed to trial by the Presidency Magistrate as early as July, 31, 1963, and he was convicted by the Trial Judge on September 4, 1964."}}, {"text": "s. 148", "label": "PROVISION", "start_char": 8576, "end_char": 8582, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 8584, "end_char": 8589, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Explosive Substances Act", "label": "STATUTE", "start_char": 8608, "end_char": 8632, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 302", "label": "PROVISION", "start_char": 8643, "end_char": 8649, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}]} {"document_id": "1971_3_550_556_EN", "year": 1971, "text": "GURDEVS~GH\n\n'V .•\n\nSTATE OF PUNJAB\n\nJaTijU{lly 27, 1971\n\n[G. K. MITTBR AND A. N. RAY, JJ.]\n\nService-Indian Police Service Sche;, e-Appellant interviewed and ced in List 11 un4er the Scheme while officiating as Superintenden~ of. ice-If inclusion in List conje\"ed any rights on hl\"m-Whether could .be reverted to substantive post of 'Deputy Superintendent of Police.\n\nThe appellant originally belonged to the Police Service in the Stat~ 'of Patiala and was promoted to officiate as a Superintendent of Police in .February 1950 in the erstwhile State of PEPSU. After the Indian Police\n\nServic~ Scheme was extended to PEPSU in 1950, the appellant was one of several persons interviewed by the Federal . Public Service Commission and his name was placed on what was styled in Lit II in the Schee.\n\nHe continued working as an officiating Superintendent of Police without being confirmed in the post. On December 1, 1954, he was reverted to D his substantive rank of Deputy Superintendent by an order of the Inspecior-General of Police. The appellant thereafter filed a suit claimii1g that the order of reversion was bad.\n\nHe alleged that the inclusion of his name in List II of the Scheme gave him a right to continue as an offici.at- :ing Superintendent of Police for five years and his reversion within that period to his substantive post amounted to a punishmen1.\n\nHe alleged there was thus non-c.Jmpliance with Art-:- 311 of the C.onstitution.\n\nHe also complained that while he was reverted, persons who were junior to E him; in the sense that their names had not been included in any of the Lists under the Scheme, were allowed to continue as officiAting Supei'iniendents of1 Police; there was therefore dcrimination s against him. !be case of\\__the respondent State was that the reversion tlad been effected purely on aCiministrative grounds as a Superintendent of\n\n1Police who was returning to the State had to be accommodated, and the£e was no vacancy in which the ap.Pellant could be allowed to work as Superintendent of F Police. 'The Trral Court held that the impugnee order was not made by way of punishment and the plaintiff had failed .to prove there was any discrimination against him. An appeal to the High Court was dis- missed. On appeal to this Court.· ·\n\nHELD : The reversion was justified on administ!'ative grounds and there was no bar to such reversion by reason of , the inclusion of the appellant's name in List II. The said list merely ensured that the officers G whose name wereborne thereon would be watched for the space of five years and tliey might be absdrbed in .the All India Service even within . the said period as a result of periodical reviews.. Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of Police was not ruled out. As the officers in List 11...-had no right to be absorbed in the Indian Police Service immediately, the direction in the scheme that \"officers placed in List II. wilt continue to hold their present post'.' merely. mt:ant that tey would ot be made. to go out H of their' posts except on Justifiable groun3s.\n\nHoldmg a post ID an officiating capacity as a 'Superintendent G>f Police.' did not entitled the appellant\n\n~ \\·.<\n\n~,·~\n\nA to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadre to absorb them all. [556 Cl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1018 of 1967.\n\nB Appeal from the judgment and decree dated January 16, 1967 of the Pujap and Haryana High Court in Regular First Appeal No. 358 of f9-64.\n\nM~ C. Setalvad, Bishan Narain, Jawahar Lal Gupta and P. C.\n\nBhartari, for the appellant.\n\nC Harbans Singh and R. N. Sachthey, fOr the respondent.\n\nThe Judgment of the Court was delivered by\n\nMitter, J.-The appellant who originally belonged to the police service in the State of Patiala and was promoted to offi- D ciate as a Superintendent of Police on 11th February 1950 in the erstwhile State of PEPSU filed a suit against the State of Punjab in January 1961 for a declaration to the effect that the order of the PEPSU Government dated 1st December 1954 reverting him to the post of Deputy Superintendent of Police (the substantive post which was formerly held by him) was unconstitutio.na.I and void and that he was entitled to ll the rightS by way of arrears E of salary and allowances etc. of the post of Superintendent of Police and that he continued as such in that capacity even after the date of the impugned order. The suit was dismissd by the Subordinate Judge of Patiala and his appeal to the Punjab High Court met with no beter fat~. He baS come to this Court by a certificate granted by the High Court under Art. 13 3 ( 1) (c) of the Con- F stitution.\n\nThe relevant fcts are as follows. The appellant started his career in the police service in the year 1942 as an As.sistant Superintendent of Police in the former State of Patiala. On the formation of the State of PEPSU he started to function in the same capacity in the said State. In 1950 he was promoted to officiate as a Superintndent pf Police. It appears that a scheme known as the Indian Police .Service Scheme was extended to PEPSU in the year 1950. The apellant was one of several peons wo\n\nwere called up for intervtew before the Federal Pubhc Sece Commission in June 1950 under the orders of the PEPSU Government and his name was placed on what was styled the Second List in the above scheme after the int\"}rview.\n\nH~ continud working as an officiating Superintendent of Police wtthout bemg confirmed in that post.\n\nQn December 1, 1954 he was reverted to\n\n:his substantive rank of Deputy Superintendent of Police by an 'order of the Inspector-Gener4l of Police and he was directed to make over charge to oneS. Ajaib Singh, Superintendent of Police.\n\nAs he was on leave at that time he was given liberty to proceed on leave from that date after submitting a formal charge report.\n\nThe appellant's case before the Subordinate Judge in sub- B stance was that the inclusion of his name in List II of the scheme mentioned gave him a right to continue as an officiating Superin .. tendent of Police for five years and his reversion within that period to his substantive post amounted to a punishment : the order of reversion was bad as there was no compliance with th.e provisions of Art. 311 of the Constitution. He also complained that while c he was reverted persons who were junior to him in the sense that their names -bad not been approved by the Special Recruitment Board for inclusion in any of the Lists set forth in the Police Service Scheme were allowed to cont.tue in their post..s as officiating Superintendents of Police : the order ol reversion was bad because Of discrimination. He thus complained of loss of seniority a.nd postponement of chances of promotion in violation of his rights.\n\n The defence set up in the written statement of the State of Punjab was that the reversion was not by wav ot penalty and did not affect the appellant's chances of promotion. It was further pleaded that the inclusion of the appe1lant's name in List II did riot entitle him to be absorbed immediately in the Indian Police E $ervice cadre. Neither did it confer any rights of seniority over\n\nother officers of the same rank. The revision had been effected purely on administrative grounds as there was no vacancy n which he could be a11owed to work as a Superintendent of Police and\n\nonsequently there was no reduction in rank of the appellant. Art. 311 of the Constitution did not in the circumstances of the case F apply to the appellant.\n\n:, The issue on which the appellant lost before the trial Judge was \"Whether the order dated 1st Decembet, 1954 reverting the\n\nplaintiff to the t>OSt of Deputy Superintendent of Police was illegal, unconstitutiOnal and void and not binding on him for reasons given in paragraph 7 of the plaint ?\" The learned Subordinate J; udge held that the order of 1st December 1954 was not made }iy way of punishment and the pla.i1,1tiff had failed to prove that there ws any discrimin'ation against him in favour of any persons jior to him.\n\ni No oral evidence was adduced at the trial stage.\n\nWhen the H matter appeared before the High Court in the appellate stage. the appellant wanted to have himself examined orally and the High\n\nCourt alJowed that application. The plaintiff-appel1ant was then\n\nexamined before the Subordinate Judge. He stated in his examination-in-chief that when he was reverted from the rank of Superintendent of Police three persons, Ram Singh, Daljit Singh and Harpaul Singh who were also working in the same capacity as himself and officiating in the cadre of Superinttmdent:; of Police but whose names were not borne on List II of the Police Service\n\nSdleme on 1st December 1954 were allowed to function as before : besides them there was another person Kanwar Sain who although jwiior to him was allowed to continue as Superintendent of Police, Civil Defence, in an officiating capacity. His further statement was that after 1st December 1954 two persons by Name .Piara Lal and Karam Singh were promoted as Suparintendents of Police in March 1955 and June 1956 respectively and on these occasions his case was not considered for promotion. ln'his crossexamination he admitted that il the Indian Police Service Scheme had not n extended to PEPSU, Ram Singh, Harpaul Singh and Daljit Singh would have to be treated as senior to him in the civil list.\n\nAs the stand taken by the appellant rests on his claim based on the inclusion of his name in List II of the Indian Police Service\n\nScheme it .is -necessary to examine the same and find out what right it gave him. The Scheme, an exhibit in this case, shows that it was meant to provide \"for the extension of the organisation of the Indian Police Service\" so that senior police officers could be available to the Government of the States and the Union of States in India. The primary object of the extension was to maintain and where necessary introduce a standard of efficiency at the highest administrative level in the States comparable to that main~ tained in all Provincial Governments and at the Centre. The\n\nScheme was extended to numerous States including PEPSU. Clause 4 of the Scheme shows the intial constitution of the service. It laid down steps to afford opportunities to existing incumbents of the posts to be encadred and all officers holding posts of similar status were to be considered to be the first and primary so~ r recruitment to the State cadre of the Indian Police Serv1ee at its initial constitution. This was done by each State Government setting up a Selection Board in cQilSultation with the Government of India. The Board was to review cases of $9fficers of the State Government of the description mentioned make 'a preliminary selection from among them of all officers of' the State Government of the specified descriptions who were suitable for inclusion in one or the other of the three lists referred to in the subsequent paragraph. The First List was to contain names of officers who were considered suitable for immediate appointment to, the Indian Police Service subject to probation with reference to the minimum All India Standard adopted in assessing the suitability of Provincia) SerVice Officers. The second list was to \"cQD.tain names of\n\nSUPRE~E COURT REPORTS\n\n[1971]3 S.C.R ..\n\nofficers who though not up to the required standard immediately A showed sufficient promise to render it likely that they would attain such standard, with further experience during a period not exceeding five years.\" Officers in List I were to be immediately appointed to the Indian Police Service in the Stat, e cadre concenned subject to a probation. The scheme provided that- ~\n\n\"Officers in List ll will-ontinue to hold their present post but will not be absorbed in the Indian Police Service immediately.\n\nTheir work will be watched during the next five yers and they will be absorbed in the All Lndia Service as a result of periodical reviews as and when they are found fit for the service. Those of them who are not found fit .. within the period of five years will either be reverted to posts outside th~ cadre of the Indian Police\n\nServie or retire as the State Government concerned might think fit, unless they are also mcluded in List III.\"\n\nThe Order of the Inspector-General of Polioo dated December D 1, 1954 was worded as follows :-\n\n\"1 am directed to inform you that, on having been relieved by S. Ajaib Sirigh, Superintendent of Police. you are reverted to your subStantive rank of Depucy Superintendent of Police, with effect from to-day. You may ptoeeed on leave from to-day after submitting formal E charge report.\"\n\nBy itself the order is unexceptionablein that it merely directed the appellant who was. serving in an officiating capacity to go back to his substantive, post.\n\nThere is no stigma cat on him and no adverse remark . agaist his character or efficiency. If it be a fact that he was reverted for administrative reasons he could - F not complain except on the ground that. the inclusion of his name in .List II gav¢ him a right to hold the post of the Superintendent -of Police in an officiating capacity for five years. Apart from the consideration of the rights based on the inclusion of his name in the said list be could h~\"-e no rievance about the retention of Ram Singh, Daljit Singh and Harpal Singh in the cadre of offi- G ciating Superintendents of Pri1ice. He could only base his com plaint on the retentioo of Kanwar Sain who was .iunior to him in the cadre in preference to himself.\n\nKanwar Sain, it appears from the notes regarding the representation of the appellant with regard to reversion made , by the Inspector General ot _Police. could not be reverted as he was at the material point of time on depu- H tation from Madhya Pradesh Government on particular terms /on\n\ncontract basis and it could not have been in the interest of Government to terminate his services earlier than the scheduled period\n\nGURDEV SINqH V. PUNJAB (Mitter, i.) 555\n\nIt is also of interest to 1110te that the reversion of the appellant was ordered after matute consideration. A note prepared at the office of the Inspector General of Police which also bears the en~ dorsement of the Chief Secretary and the Chief Minister shows that Ajaib Singh Gill who had completed 23 years and 7 months of service was due back from leave on 1st December 1954 and he had to be retained for another year and five months before he could be pensioned off. As there was no job of S.P . .lying vacant in PEPSU at the moment it was suggested that the appellant who was the \"junior (most) D.S.P.\" officiating as S.P. should revert and S. Ajaib Singh should be posted in his place.'\n\nIf 'the above note was a genuine document-and we have no reason to bold that it was otherwise-it is quite clear that the appellant was not sought to be reverted because of any shortcoming but because room had to be made for s. Ajaib Singh Gill and the axe fell on the appellant as he was considered to be the person at the bottom of the list of officers officiating as Superintendent of Police.\n\nIt is trlJe that Kanwar Sain's name does noti occur in this note but if Kanwar Sain was on deputation from Madhya Prade&h Govem- Jnent on a contract basis no exception can be taken to his having been retained in preference to the appellant.\n\nIt appears that in dismissing the ap~ of the ~:tppellant to the Higli Court. the learned Judges proceeded on the assumption E that the India!i Police Service scheme was legally binding and its provisions would have the same effect as the statutory rules and regulations. We may proceed to dispose of the appeal on the same assumption.\n\nTh~ learned Judges of the High Court took the view that the appellant's grievance even based on List II could l}.Ot be upheld because he had been found unfit for retention in List II. The High Court apparently came to take this view of the F strength of a document which was eibid as C-2. The letter Ex. C-2 dated September 8, 1956 was addressed by the Deputy Secretary to the Government of India to the Chief Secretary to the Government of PEPSU. It purports to show that the Chief Secm-- tary's memorandum to the Governme.nt of India on August f3,\n\n1956 containing the assessment of the State Govei'IliDCilt in respect G of the work of Siasat Singh Sekhon and Gurdev Singh Sindhu and the finding that these two officers were not fit to be recommended for appointment to the Indian PoJice Service cadre in accordance with the provisions contained in paragraph 4(ill) (b)-.ef the said extensiola was accepted by the Government of India. As the letter of the€bief Secretary dated 13th August 1956 was not pro.\n\nH ducied befqte the court we are not in a position to say wbeft the ass~ (tf the work of the appellant in connection with the re tention oftlia JUline in Lilt II was made, i.e., whether it was befqre\n\nj lst December 1954 or subsequent thereto and in our view the ~918 Sup.C~J\n\nHigh Court should not have relied on this document. Moreover A the ground for reverting the appellant . to the substantive post of Deputy Superintendent of Police as borne out by the note prepared in the office of the Inspector-General of Police and acceded to by the Chief Minister made no reference to any such assessment. It is also noteworthy that no such ground was put I forwat:d m (he written statement where the only plea raised was founded OJl. ad- B ministrative convenience. -...__\n\nEven thou~ we find ourselves unable to upholdo-Jll_e judgment of t.he High Court based on the contents of Ex. C-2, we take the view tl; lat the reversion was justified on administrative grounds arul __ there was no bar to such reversion by reason of the inclusion C CJl, tfte appellant's name in List II. The said list merely ensured that the officers whose names were borne thereon would be watched for the space of five years and they might be absorbed in the All India Service even within the said period as a result of .periodical reviews.\n\nAlthough reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of D Police was not ruled out. As the officers in List II bad no right to be observed in the Indian Police Service immediately the direction in the scheme. that' \"officers placed in List II will continue to hold their present post', merely meant that they would not be made to go out of their posts except on justifiable gronds.\n\nHolding a post in an officiating capacity as a Superintendent of E Police did not entitle the appellant to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadreto absorb them all.\n\nAll that paragraph 4(iii) (b) ensued was hat if th, ey were found fit within five years they woul~ be absorbed i\" the All India Service cadre.\n\nF If they were not found fit after the end of that period they could be reverted to posts outside 'the cadre of the Indian Police Service or made .to retire unless their names were a1so included in List\n\nIII-a contingency which has not arisen in this case. In our view, although the order of the High Court cann.qt be upheld on the ground mentioned in the judgment, the order cannot be quashed for reasons indicated by us.\n\nThe appeal is therefore dismissed, G\n\nbu.t~ in the circumstances of this case we make no order as to coSts. ·\n\nRK.P.S.\n\nAppeal dismissed.", "total_entities": 44, "entities": [{"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 19, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 75, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "Federal . Public Service Commission", "label": "ORG", "start_char": 690, "end_char": 725, "source": "ner", "metadata": {"in_sentence": "After the Indian Police\n\nServic~ Scheme was extended to PEPSU in 1950, the appellant was one of several persons interviewed by the Federal ."}}, {"text": "December 1, 1954", "label": "DATE", "start_char": 898, "end_char": 914, "source": "ner", "metadata": {"in_sentence": "On December 1, 1954, he was reverted to D his substantive rank of Deputy Superintendent by an order of the Inspecior-General of Police."}}, {"text": "Indian Police Service", "label": "ORG", "start_char": 2946, "end_char": 2967, "source": "ner", "metadata": {"in_sentence": "As the officers in List 11...-had no right to be absorbed in the Indian Police Service immediately, the direction in the scheme that \"officers placed in List II."}}, {"text": "C. Setalvad", "label": "LAWYER", "start_char": 3734, "end_char": 3745, "source": "ner", "metadata": {"in_sentence": "M~ C. Setalvad, Bishan Narain, Jawahar Lal Gupta and P. C.\n\nBhartari, for the appellant."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 3747, "end_char": 3760, "source": "ner", "metadata": {"in_sentence": "M~ C. Setalvad, Bishan Narain, Jawahar Lal Gupta and P. C.\n\nBhartari, for the appellant."}}, {"text": "Jawahar Lal Gupta", "label": "LAWYER", "start_char": 3762, "end_char": 3779, "source": "ner", "metadata": {"in_sentence": "M~ C. Setalvad, Bishan Narain, Jawahar Lal Gupta and P. C.\n\nBhartari, for the appellant."}}, {"text": "P. C.\n\nBhartari", "label": "LAWYER", "start_char": 3784, "end_char": 3799, "source": "ner", "metadata": {"in_sentence": "M~ C. Setalvad, Bishan Narain, Jawahar Lal Gupta and P. C.\n\nBhartari, for the appellant."}}, {"text": "C Harbans Singh", "label": "LAWYER", "start_char": 3821, "end_char": 3836, "source": "ner", "metadata": {"in_sentence": "C Harbans Singh and R. N. Sachthey, fOr the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3841, "end_char": 3855, "source": "ner", "metadata": {"in_sentence": "C Harbans Singh and R. N. Sachthey, fOr the respondent."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 3922, "end_char": 3928, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMitter, J.-The appellant who originally belonged to the police service in the State of Patiala and was promoted to offi- D ciate as a Superintendent of Police on 11th February 1950 in the erstwhile State of PEPSU filed a suit against the State of Punjab in January 1961 for a declaration to the effect that the order of the PEPSU Government dated 1st December 1954 reverting him to the post of Deputy Superintendent of Police (the substantive post which was formerly held by him) was unconstitutio.na."}}, {"text": "Patiala", "label": "GPE", "start_char": 4009, "end_char": 4016, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMitter, J.-The appellant who originally belonged to the police service in the State of Patiala and was promoted to offi- D ciate as a Superintendent of Police on 11th February 1950 in the erstwhile State of PEPSU filed a suit against the State of Punjab in January 1961 for a declaration to the effect that the order of the PEPSU Government dated 1st December 1954 reverting him to the post of Deputy Superintendent of Police (the substantive post which was formerly held by him) was unconstitutio.na."}}, {"text": "State of Punjab", "label": "ORG", "start_char": 4160, "end_char": 4175, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMitter, J.-The appellant who originally belonged to the police service in the State of Patiala and was promoted to offi- D ciate as a Superintendent of Police on 11th February 1950 in the erstwhile State of PEPSU filed a suit against the State of Punjab in January 1961 for a declaration to the effect that the order of the PEPSU Government dated 1st December 1954 reverting him to the post of Deputy Superintendent of Police (the substantive post which was formerly held by him) was unconstitutio.na."}}, {"text": "PEPSU Government", "label": "ORG", "start_char": 4246, "end_char": 4262, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMitter, J.-The appellant who originally belonged to the police service in the State of Patiala and was promoted to offi- D ciate as a Superintendent of Police on 11th February 1950 in the erstwhile State of PEPSU filed a suit against the State of Punjab in January 1961 for a declaration to the effect that the order of the PEPSU Government dated 1st December 1954 reverting him to the post of Deputy Superintendent of Police (the substantive post which was formerly held by him) was unconstitutio.na."}}, {"text": "Subordinate Judge of Patiala", "label": "COURT", "start_char": 4685, "end_char": 4713, "source": "ner", "metadata": {"in_sentence": "The suit was dismissd by the Subordinate Judge of Patiala and his appeal to the Punjab High Court met with no beter fat~. He baS come to this Court by a certificate granted by the High Court under Art."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 4736, "end_char": 4753, "source": "ner", "metadata": {"in_sentence": "The suit was dismissd by the Subordinate Judge of Patiala and his appeal to the Punjab High Court met with no beter fat~. He baS come to this Court by a certificate granted by the High Court under Art."}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 4853, "end_char": 4860, "source": "regex", "metadata": {"statute": null}}, {"text": "PEPSU", "label": "ORG", "start_char": 5111, "end_char": 5116, "source": "ner", "metadata": {"in_sentence": "On the formation of the State of PEPSU he started to function in the same capacity in the said State."}}, {"text": "Federal Pubhc Sece Commission", "label": "ORG", "start_char": 5437, "end_char": 5466, "source": "ner", "metadata": {"in_sentence": "The apellant was one of several peons wo\n\nwere called up for intervtew before the Federal Pubhc Sece Commission in June 1950 under the orders of the PEPSU Government and his name was placed on what was styled the Second List in the above scheme after the int\"}rview."}}, {"text": "oneS. Ajaib Singh", "label": "OTHER_PERSON", "start_char": 5912, "end_char": 5929, "source": "ner", "metadata": {"in_sentence": "Qn December 1, 1954 he was reverted to\n\n:his substantive rank of Deputy Superintendent of Police by an 'order of the Inspector-Gener4l of Police and he was directed to make over charge to oneS. Ajaib Singh, Superintendent of Police.", "canonical_name": "oneS. Ajaib Singh"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 6486, "end_char": 6494, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 7650, "end_char": 7658, "source": "regex", "metadata": {"statute": null}}, {"text": "1st December 1954", "label": "DATE", "start_char": 8099, "end_char": 8116, "source": "ner", "metadata": {"in_sentence": "The learned Subordinate J; udge held that the order of 1st December 1954 was not made }iy way of punishment and the pla.i1,1tiff had failed to prove that there ws any discrimin'ation against him in favour of any persons jior to him."}}, {"text": "Ram Singh", "label": "OTHER_PERSON", "start_char": 8696, "end_char": 8705, "source": "ner", "metadata": {"in_sentence": "He stated in his examination-in-chief that when he was reverted from the rank of Superintendent of Police three persons, Ram Singh, Daljit Singh and Harpaul Singh who were also working in the same capacity as himself and officiating in the cadre of Superinttmdent:; of Police but whose names were not borne on List II of the Police Service\n\nSdleme on 1st December 1954 were allowed to function as before : besides them there was another person Kanwar Sain who although jwiior to him was allowed to continue as Superintendent of Police, Civil Defence, in an officiating capacity.", "canonical_name": "Karam Singh"}}, {"text": "Daljit Singh", "label": "OTHER_PERSON", "start_char": 8707, "end_char": 8719, "source": "ner", "metadata": {"in_sentence": "He stated in his examination-in-chief that when he was reverted from the rank of Superintendent of Police three persons, Ram Singh, Daljit Singh and Harpaul Singh who were also working in the same capacity as himself and officiating in the cadre of Superinttmdent:; of Police but whose names were not borne on List II of the Police Service\n\nSdleme on 1st December 1954 were allowed to function as before : besides them there was another person Kanwar Sain who although jwiior to him was allowed to continue as Superintendent of Police, Civil Defence, in an officiating capacity."}}, {"text": "Harpaul Singh", "label": "OTHER_PERSON", "start_char": 8724, "end_char": 8737, "source": "ner", "metadata": {"in_sentence": "He stated in his examination-in-chief that when he was reverted from the rank of Superintendent of Police three persons, Ram Singh, Daljit Singh and Harpaul Singh who were also working in the same capacity as himself and officiating in the cadre of Superinttmdent:; of Police but whose names were not borne on List II of the Police Service\n\nSdleme on 1st December 1954 were allowed to function as before : besides them there was another person Kanwar Sain who although jwiior to him was allowed to continue as Superintendent of Police, Civil Defence, in an officiating capacity.", "canonical_name": "Harpaul Singh"}}, {"text": "Kanwar Sain", "label": "OTHER_PERSON", "start_char": 9019, "end_char": 9030, "source": "ner", "metadata": {"in_sentence": "He stated in his examination-in-chief that when he was reverted from the rank of Superintendent of Police three persons, Ram Singh, Daljit Singh and Harpaul Singh who were also working in the same capacity as himself and officiating in the cadre of Superinttmdent:; of Police but whose names were not borne on List II of the Police Service\n\nSdleme on 1st December 1954 were allowed to function as before : besides them there was another person Kanwar Sain who although jwiior to him was allowed to continue as Superintendent of Police, Civil Defence, in an officiating capacity."}}, {"text": ".Piara Lal", "label": "OTHER_PERSON", "start_char": 9229, "end_char": 9239, "source": "ner", "metadata": {"in_sentence": "His further statement was that after 1st December 1954 two persons by Name .Piara Lal and Karam Singh were promoted as Suparintendents of Police in March 1955 and June 1956 respectively and on these occasions his case was not considered for promotion."}}, {"text": "Karam Singh", "label": "OTHER_PERSON", "start_char": 9244, "end_char": 9255, "source": "ner", "metadata": {"in_sentence": "His further statement was that after 1st December 1954 two persons by Name .Piara Lal and Karam Singh were promoted as Suparintendents of Police in March 1955 and June 1956 respectively and on these occasions his case was not considered for promotion.", "canonical_name": "Karam Singh"}}, {"text": "India", "label": "GPE", "start_char": 9947, "end_char": 9952, "source": "ner", "metadata": {"in_sentence": "The Scheme, an exhibit in this case, shows that it was meant to provide \"for the extension of the organisation of the Indian Police Service\" so that senior police officers could be available to the Government of the States and the Union of States in India."}}, {"text": "Clause 4", "label": "PROVISION", "start_char": 10385, "end_char": 10393, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India", "label": "ORG", "start_char": 10836, "end_char": 10855, "source": "ner", "metadata": {"in_sentence": "This was done by each State Government setting up a Selection Board in cQilSultation with the Government of India."}}, {"text": "Polioo", "label": "GPE", "start_char": 12529, "end_char": 12535, "source": "ner", "metadata": {"in_sentence": "The Order of the Inspector-General of Polioo dated December D 1, 1954 was worded as follows :-\n\n\"1 am directed to inform you that, on having been relieved by S. Ajaib Sirigh, Superintendent of Police."}}, {"text": "December D 1, 1954", "label": "DATE", "start_char": 12542, "end_char": 12560, "source": "ner", "metadata": {"in_sentence": "The Order of the Inspector-General of Polioo dated December D 1, 1954 was worded as follows :-\n\n\"1 am directed to inform you that, on having been relieved by S. Ajaib Sirigh, Superintendent of Police."}}, {"text": "S. Ajaib Sirigh", "label": "OTHER_PERSON", "start_char": 12649, "end_char": 12664, "source": "ner", "metadata": {"in_sentence": "The Order of the Inspector-General of Polioo dated December D 1, 1954 was worded as follows :-\n\n\"1 am directed to inform you that, on having been relieved by S. Ajaib Sirigh, Superintendent of Police.", "canonical_name": "oneS. Ajaib Singh"}}, {"text": "Harpal Singh", "label": "OTHER_PERSON", "start_char": 13564, "end_char": 13576, "source": "ner", "metadata": {"in_sentence": "Apart from the consideration of the rights based on the inclusion of his name in the said list be could h~\"-e no rievance about the retention of Ram Singh, Daljit Singh and Harpal Singh in the cadre of offi- G ciating Superintendents of Pri1ice.", "canonical_name": "Harpaul Singh"}}, {"text": "Madhya Pradesh Government", "label": "ORG", "start_char": 14005, "end_char": 14030, "source": "ner", "metadata": {"in_sentence": "could not be reverted as he was at the material point of time on depu- H tation from Madhya Pradesh Government on particular terms /on\n\ncontract basis and it could not have been in the interest of Government to terminate his services earlier than the scheduled period\n\nGURDEV SINqH V. PUNJAB (Mitter, i.) 555\n\nIt is also of interest to 1110te that the reversion of the appellant was ordered after matute consideration."}}, {"text": "Ajaib Singh Gill", "label": "OTHER_PERSON", "start_char": 14496, "end_char": 14512, "source": "ner", "metadata": {"in_sentence": "A note prepared at the office of the Inspector General of Police which also bears the en~ dorsement of the Chief Secretary and the Chief Minister shows that Ajaib Singh Gill who had completed 23 years and 7 months of service was due back from leave on 1st December 1954 and he had to be retained for another year and five months before he could be pensioned off."}}, {"text": "S. Ajaib Singh", "label": "OTHER_PERSON", "start_char": 14877, "end_char": 14891, "source": "ner", "metadata": {"in_sentence": ".lying vacant in PEPSU at the moment it was suggested that the appellant who was the \"junior (most) D.S.P.\" officiating as S.P. should revert and S. Ajaib Singh should be posted in his place.'", "canonical_name": "oneS. Ajaib Singh"}}, {"text": "Madhya Prade&h Govem- Jnent", "label": "ORG", "start_char": 15428, "end_char": 15455, "source": "ner", "metadata": {"in_sentence": "It is trlJe that Kanwar Sain's name does noti occur in this note but if Kanwar Sain was on deputation from Madhya Prade&h Govem- Jnent on a contract basis no exception can be taken to his having been retained in preference to the appellant."}}, {"text": "September 8, 1956", "label": "DATE", "start_char": 16213, "end_char": 16230, "source": "ner", "metadata": {"in_sentence": "C-2 dated September 8, 1956 was addressed by the Deputy Secretary to the Government of India to the Chief Secretary to the Government of PEPSU."}}, {"text": "Siasat Singh Sekhon", "label": "OTHER_PERSON", "start_char": 16537, "end_char": 16556, "source": "ner", "metadata": {"in_sentence": "It purports to show that the Chief Secm-- tary's memorandum to the Governme.nt of India on August f3,\n\n1956 containing the assessment of the State Govei'IliDCilt in respect G of the work of Siasat Singh Sekhon and Gurdev Singh Sindhu and the finding that these two officers were not fit to be recommended for appointment to the Indian PoJice Service cadre in accordance with the provisions contained in paragraph 4(ill) (b)-.ef the said extensiola was accepted by the Government of India."}}, {"text": "Gurdev Singh", "label": "PETITIONER", "start_char": 16561, "end_char": 16573, "source": "metadata", "metadata": {"canonical_name": "Gurdev Singh Sindhu", "offset_not_found": true}}]} {"document_id": "1971_3_557_572_EN", "year": 1971, "text": "~57\n\nUNION OF INDIA v.\n\nTARACHAND GUPTA & BROS.\n\nJanuary 28, 1971\n\n[J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.]\n\nCivil Courts-Jurisdiction of-Exclusion of jurisdiction-Wiien in i••rred.\n\nImport Tl'ade Control Policy-Jurisdiction of statutory au/Worlty.\n\nUnder cl. 3 of the Imports (Control) Order, 19SS, passed under s. 3 of the Imports and Exports (Control) Act, 1947, no person shall import any goods of the description specified. in Sch. l except in accordance with a licence, and if it was found that the goods impolrted did not conform to the description in the licence, then, without prejudice to any action that may be taken against the licensee under the Sea Customs Act, such goods would be treated as having been imported without a valid licence in thai behalf.\n\nUnder Entry 294 of s. II of Part IV of Sch. l of the Import Trade Control Pvlicy (July to December 1956), import of motor.cycles\n\nand scooters was permitted under an appropriate licence, but such a licence could not be used for their import in a completety knocked down (C.K.D.) condition except by approved manufacturers. That is, there was no absolute phohibition for their import in C.K.D. condition. The words completely knocked down conditions are not used in any technical sense\n\nand have the dictionary meaning of \"made or constructed SQ as to be capable of being knocked down or taken apart as for transp .ind saddles so thnt it was impossible to say that they constitllted tnOtor . P. Anand's case(') was not dissented from but only distinguished, and therefore, the High Court in the present case was justified in follow- B ing it.\n\nIt is true, however, that counsel for the appellant there relied on that decision in support of his pro~on a completed article cannot be read as a ban on the importation of its constituents, which, when assembled, would result in the prohibited article, and this Court pointed out in answer that in D. P. Anand's case,(1) the imported components could not have when assembled, made up the completed article because of the lack of certain essentjat' parts whicl; t admittedly were not available in India and could not be imported. The real distinotion, however, between the two cases was that the decision of the Collector\n\nin D. P. Anand' s case ( 1) was not, as was the decision in Girdharic\n\nlal's case,(2) under which of the two comwting entries the import- 0 ed goods fell but that the imported goods in question, if assembl_. ed, together, would not be the goods covered by the entry, and therefore, not the goods in respect of which the licence was granted.\n\nFurther, the articles in question, even when assembled together, were not prohibited articles as in Girdharilars case('). Girdharilal's case(2 ) is clearly distinguishable because it is not as if motor cycles and scooters are prohibited articles as was the case there.\n\nThe restriction is not against licensees importing motpr cycles and scooters under entry 294 and parts and accessories under entry 295 but against the licensees under entry 294 importing motor cycles and scooters in C.K.D. condition. The question in the instant case was not under which of the two entries, 294 or 295, the goods fell, but whether the goods were parts and accessories covered by entry 295.\n\nIn Firm Illuri Subbayya Chetty & Sons v. Andhra Pradesh,(3 ) the suit filed by the appellants was for recovery of a sum paid by way of purchase tax under the Madras General Sales Tax Act,\n\n1939. The cause of action was that the amount had been illegally recovered.\n\nRelying on s. 18A of the Act, this Court held that the expression \"any assessment made under this Act\" in that section was wide enough to cover all assessments made by the appropriate authorities under the Act and even if an assessment was incorrect, so long as it was within the jurisdiction of the authorities, it was not non-c.ompliance of the statute, and therefore, was not covered by the principle laid down in the case of Mask & Co.(') The\\Court observed:\n\n(I) C.A. 4of1959 dt. Aug. 17, 1960 (H.C.)\n\n(2) [1964]7 S.C.R. 62.\n\n(3) [1964] l.S.C.R. 752.\n\n(4) [1948] LR. 67 I.A. 222. r\n\n\"There is no justification for the assumption that if a decision has been made by a taxing authority under the provisions of a taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on merits and as such it can be claimed that the provisions of the said statute have not been compiled with.\"\n\nThis principle was repeated in Dhulabhai v. Madhya Pradesh(1) where it was held that where a statute gives finality to the orders of the special tribunal the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil c:Ourts .would normally do in a suit, i.e., to correct an assessment which is rronus. The Court also pointed out that in the 'Firm\n\nll/uri Subbayya Chetty & Sons' case,(~) it had been said that Mask & Co.'s case(8 ) was an authority for the proposition that non-compliance with the provisions of the statute would render the entire proceedings before the authority illegal and without jurisdiction.\n\nThe case of Panthulu v. Andhra Pradesh (4 ) illustrates as to when an authority can be said to have acted in non-compliance with the provisions of the statute under which it derives its authority. Section 3(2) of the Madras Estates Land (Reduction of Rent) Act, XXX of 1947 authorised the State Government to fix the rates of rent in respect of each class of ryoti land in each village in the State after considering the recommendwtions of the special officer and the remarks of the Board of Revenue. Section 8(1) provided that no order passed under s. 3(2) could be challenged in a civil court. The suit filed by the appellants disputed the legality of the notification reducing the rates of land in respect of the dry delta ryoti lands in a village on the grou.nd that the class of land had been determined to be delta ryoti lands on the basis only of the setilement register which did. not contain any entry with respect to the village in question, that the settlement register could not be treated as conclusive and that proper factual enquiry was necessary. The High Court held that the suit was not maintainable by reason of s. 8(1). Dua, J., speaking for the Bench. held that under s. 2 the special officer had to determine the average rate of cash rent per acre for each class of ryoti land such as wet, dry or garden.\n\nThis could only be done on relevant material.\n\nThe special officer, however, _had based his determination on a report of his assistant, who had considered the entry in the settlement register of another village. That meant that the special officer had made his determination on irrelevant evidence, i.e .. on the register which did not contain any data with respect tothe land in the village in q11estion.\n\nOn these tacts he held that the\n\n\n(2) (1964) 1 S.C.R. 752.\n\n(3) [1948] L.R.67 I.A. 222. (4)\n\n[~970] 2 S.C.R. 714\n\n-570 SUPREME COURT REl'ORTS\n\n[1971 J 3 S.C.R.\n\n.determination by the special officer was based on no evidence with the result that it was in violation of the fundamental principles of judicial procedure. A fortiori, the order of the Government made under s. 3(2) on the basis of the recommendations of the special .officer was not iii confonnity with the provisions of the Act and was therefore outside the purview of s. 3(2) and consequently s. 8 ( 1) was inapplicable.\n\nThus, sec. 8 ( 1) was held not to apply because the Government's determination could not be said to be one under s. 3(2).\n\n- The words.\"a decision or order passed by an officer of Customs under this Act\" used in s. 188 of the Sea Customs Act must mean a real and 111ot a purported determination.\n\nA determination, which takes into consideration factors which the officer has no right to take into account, is no determination.\n\nThis is also the view taken by courts in England. In such cases the provision excluding jurisdiction of civil courts cannot operate so as to exclude an inquiry by them._ In Anisminic Ltd. v. The Foreign Compensation Commission (1) Lord Reid at pages 213 and 214 of the Report stated as follows :\n\n\"It has somet:'lles been said that it is only where a , tribunal acts without jurisdiction that its decision is a:\n\nnullity. But in such cases the word \"jurisdiction\" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity.\n\nIt may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice.\n\nIt may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it.\n\nIt may have refused to take into account something which it was required to take irrto account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted 1o it for decision without committing any of these errors it is as much entitled\n\nrto decide that question wrongly as it is to decide it rightly.\"\n\n(!) [1969] l All E.R. 208.\n\n/' .,\n\n....\n\n''\n\nTo the same effect are also the observations of Lord Pearce at page 233. R. v. Fulham, Hammersmith and Kensington Rent Tribuna/( 1) is yet another decision of a tribunal properly embark\n\ning on an enquiry, that is, within its jurisdiction, but at the end of it making an order in excess of its jurisdiction which was held to be anullity though it was an order of the kind which it was entitled to make in a proper case.\n\nThe principle thus is that exclusion of the jurisdiction of the civil courts is not to be readily inferred.\n\nSuch exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied wvth or the tribunal has not acted in conformity with the fundamental principles of judicial procedure.\n\nThe word \"jurisdiction\" has both a narrow and a wider meaning..\n\nIn the se.nse of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal ol. a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdic- E tion.\n\nThe respondents' licence adlillttedly authorised them to import goods covered by entry 295. they could, therefore, legitimately import, on the strength of that licence, all and several kinds of parts and accessories of motor cycles and scooters.\n\nThe only question, therefore, before the Collector was whether the respondents' licence covered the goods imported by .th_em, ).e., whether the goods were parts and accessories. If they were, the imports were legitimat~ and no question of their being not covered by the licence or the respondents having committed breach of s. 3 of the Imports and Exports (Control) Act ors. 167(8) of the Sea Customs Act could possibly arise.\n\nWhat the Collector, however, did was that he put the two consignments together 'lllld held that they made up 51 'Rixe' Mopeds in C.K.D. condition and were, for that reason, not the articles covered by entry 295 but articles prohibited under remark (ii) of entry 294. But entry 294 deals with the motor cycles an~ scooters complete and assembled. Re• mark (ii) against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C.K.D. condition. Remark (ii) containing that prohibition h.ad nothing to do with entry 295 which did not\n\n(I) [1953] 2 AU E.R. 4 7-918 Sup.C.l./71\n\ncontain any limitations or restrictions whatsoever against imports A of parts and accessories.\n\nThat being so, if an importer has imported parts and accesi; ories, his. import would be of the articles covered by entry 295.\n\nThe Collector could not say, if they were so covered by entry 295, that, when Jumped together, they would constitute other articles, namely, motor cycles and scooters In C.K.D. condition.\n\nSuch a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not there.\n\nThat obviously he had no power to do. Such a restriction would mean that though under a lironcc in respect of goods covered by entry 295 an importer could import parts and accessories of all kinds .and types, he silall not import all of them but only some, so that when pu.t together they would not make them motor cycles and scooters in C.K.D. condition. In the present case even that was not so because he would have to buy tyres, tubes and saddles to convert them into motor cycles and scooters into C.K.D. condition. \"That would be tantamount to the Collector making a new entry\n\nin place of entry 2951 which must mean non-compliance of that -entry and acting in excess of jursidiction during the course of his enquiry even though he had embarked upon the enquiry with jurisdiction\" In our view that was precisely what the Collector did.\n\nThis is, therefore, lllOt one of those cases where between .two competing entries the statutory authority applied one or the other, though in error, and where a civil court cannot interfere.\n\nIn this view the order was in non-compliance of the provisions of the statute, and therefore, was covered by the exceptions laid down in Mask & Co.'s case('). It was not an order in respect of which the Collector was invested with jurisdiction.\n\nThat being so, the provision excluding the jurisdiction of the civil courts was not applicable. Indeed, the order was a nullity and Art. 14 of F . the Limitation Act of 1908 could not be applied to hold the suit time barred. Even if Art, 14 applied, it would not be time-barred, if, as the High Court pointed out, the date of the appellate order was taken into consideration.\n\nThe judgment of the Division Bench of t)le High Court, ther~,- G fore, must be upheld. Conse.quently, the appeal fails and is dismissed with ctS.\n\nV.P.S.\n\nAppeal dismissed.\n\n(i-) [1948] L.R. 67 IA. 222.", "total_entities": 84, "entities": [{"text": "57\n\nUNION OF INDIA", "label": "PETITIONER", "start_char": 1, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "TARACHAND GUPTA & BROS", "label": "RESPONDENT", "start_char": 24, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "TARACHAND GUPTA & BROS", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 71, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "cl. 3", "label": "PROVISION", "start_char": 258, "end_char": 263, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 315, "end_char": 319, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 665, "end_char": 676, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "LR. 67 I.A. 222", "label": "CASE_CITATION", "start_char": 2961, "end_char": 2976, "source": "regex", "metadata": {}}, {"text": "art. 14", "label": "PROVISION", "start_char": 3018, "end_char": 3025, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 7 S.C.R. 62", "label": "CASE_CITATION", "start_char": 4746, "end_char": 4764, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4802, "end_char": 4810, "source": "regex", "metadata": {"statute": null}}, {"text": "Anand", "label": "OTHER_PERSON", "start_char": 5352, "end_char": 5357, "source": "ner", "metadata": {"in_sentence": "This Court also held that the import of parts of a prohibited article was import of the prohibited article, and that the importer cotild not be allowed to do indirectly what he could not do directly, and distinguished the case in Anand v. Thakore & Co. In Anand's case, it was held that."}}, {"text": "Mask & Co.", "label": "ORG", "start_char": 7089, "end_char": 7099, "source": "ner", "metadata": {"in_sentence": "the present case 'was covered by the exception laid down in Mask & Co.'s case and the provision excluding the jurisdiction of the civil court would not be applicable."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 7330, "end_char": 7337, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 7345, "end_char": 7359, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "V. A. Seyid Muhammad", "label": "OTHER_PERSON", "start_char": 7722, "end_char": 7742, "source": "ner", "metadata": {"in_sentence": ", V. A. Seyid Muhammad and S. P. Nayar, f0r the appellant."}}, {"text": "S. P. Nayar", "label": "OTHER_PERSON", "start_char": 7747, "end_char": 7758, "source": "ner", "metadata": {"in_sentence": ", V. A. Seyid Muhammad and S. P. Nayar, f0r the appellant."}}, {"text": "S. 1", "label": "PROVISION", "start_char": 7780, "end_char": 7784, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act,\n\n1908", "statute": "the Limitation Act,\n\n1908"}}, {"text": "Sorabjee", "label": "RESPONDENT", "start_char": 7786, "end_char": 7794, "source": "ner", "metadata": {"in_sentence": "Sorabjee, 1."}}, {"text": "R. Gagrat", "label": "LAWYER", "start_char": 7799, "end_char": 7808, "source": "ner", "metadata": {"in_sentence": "R. Gagrat and B. R. Agarwala, for the: respondents."}}, {"text": "B. R. Agarwala", "label": "LAWYER", "start_char": 7813, "end_char": 7827, "source": "ner", "metadata": {"in_sentence": "R. Gagrat and B. R. Agarwala, for the: respondents."}}, {"text": "Shelat", "label": "JUDGE", "start_char": 7897, "end_char": 7903, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by-\n\nShelat, J.\n\nThis appeal, by certificate, arises from the respondent's suit in respect of fines and penalties recovered from them by the Collector of Customs, Bombay for the alleged cootravention of s. 3 of the Imports and Exports (Control) Act, 1947 and s. 167(8) of the Sea Customs Act, 1878."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8095, "end_char": 8099, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act,\n\n1908", "statute": "the Limitation Act,\n\n1908"}}, {"text": "s. 167(8)", "label": "PROVISION", "start_char": 8151, "end_char": 8160, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act,\n\n1908", "statute": "the Limitation Act,\n\n1908"}}, {"text": "Sea Customs Act, 1878", "label": "STATUTE", "start_char": 8168, "end_char": 8189, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "November 19, 1957", "label": "DATE", "start_char": 9658, "end_char": 9675, "source": "ner", "metadata": {"in_sentence": "The order of the Deputy Collector dated November 19, 1957 reads as under :\n\n\"On examination of the goods and scrutiny of the documents relating to the Bills of Entry stated above, it was ascertained that M/s. Tarachand Gupta & Bros. had imported 51 sets of \"Rixe\" Mopeds complete (except\n\ntyics, tubes and saddles) in a knocked down condition."}}, {"text": "Tarachand Gupta", "label": "RESPONDENT", "start_char": 9827, "end_char": 9842, "source": "ner", "metadata": {"in_sentence": "The order of the Deputy Collector dated November 19, 1957 reads as under :\n\n\"On examination of the goods and scrutiny of the documents relating to the Bills of Entry stated above, it was ascertained that M/s. Tarachand Gupta & Bros. had imported 51 sets of \"Rixe\" Mopeds complete (except\n\ntyics, tubes and saddles) in a knocked down condition.", "canonical_name": "TARACHAND GUPTA & BROS"}}, {"text": "S 1", "label": "PROVISION", "start_char": 10074, "end_char": 10077, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 11433, "end_char": 11438, "source": "ner", "metadata": {"in_sentence": "He held, on the other hand, that though the goqds were n()t in completely knocked down condition it made no difference as the tyres, tubes and saddles were easily .obtainable in India and their absence did not prevent the machines being otherwise complete."}}, {"text": "Higli. Court", "label": "COURT", "start_char": 11853, "end_char": 11865, "source": "ner", "metadata": {"in_sentence": "In the suit filed by the respondents in the Higli."}}, {"text": "Customs under the Sea Customs Act", "label": "STATUTE", "start_char": 12045, "end_char": 12078, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 12941, "end_char": 12948, "source": "regex", "metadata": {"linked_statute_text": "Customs under the Sea Customs Act", "statute": "Customs under the Sea Customs Act"}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 12956, "end_char": 12976, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "D. P. Anand", "label": "OTHER_PERSON", "start_char": 14477, "end_char": 14488, "source": "ner", "metadata": {"in_sentence": "He, how- G\n\never, was of the view that whereas the High Court in D. P. Anand's\n\ncase(') interfered witlr the order in its writ jurisdiction."}}, {"text": "s. 167", "label": "PROVISION", "start_char": 15945, "end_char": 15951, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 15968, "end_char": 15979, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 16096, "end_char": 16100, "source": "regex", "metadata": {"statute": null}}, {"text": "(1964] 7 S.C.R. 62", "label": "CASE_CITATION", "start_char": 17959, "end_char": 17977, "source": "regex", "metadata": {}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 17989, "end_char": 18003, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 62", "label": "PROVISION", "start_char": 18285, "end_char": 18292, "source": "regex", "metadata": {"statute": null}}, {"text": "Union of India", "label": "ORG", "start_char": 18343, "end_char": 18357, "source": "ner", "metadata": {"in_sentence": "Counsel for the Union of India challenged the correctness of."}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 18447, "end_char": 18458, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 19610, "end_char": 19614, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 19670, "end_char": 19688, "source": "ner", "metadata": {"in_sentence": "Under s. 3 of the Im ports arid Exports (Control) Act, 194 7, the Central Government by an order can provide for prohibiting, restricting or otherwise controlling inter alia the import of goods of aily specified description and all goods to which any such order applies are deemed to be goods of w.hich the import has b, een prohibited by the Sea Customs Act, 1878 and all the provisions of that Act are to have effect accordingly."}}, {"text": "Sea Customs Act, 1878", "label": "STATUTE", "start_char": 19947, "end_char": 19968, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 20647, "end_char": 20658, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S9", "label": "PROVISION", "start_char": 20843, "end_char": 20845, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1878", "statute": "the Sea Customs Act, 1878"}}, {"text": "Section 167", "label": "PROVISION", "start_char": 21800, "end_char": 21811, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 21828, "end_char": 21839, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 188", "label": "PROVISION", "start_char": 22151, "end_char": 22162, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 191", "label": "PROVISION", "start_char": 22288, "end_char": 22294, "source": "regex", "metadata": {"statute": null}}, {"text": "Syed Mohamad", "label": "OTHER_PERSON", "start_char": 28568, "end_char": 28580, "source": "ner", "metadata": {"in_sentence": "If Dr. Syed Mohamad's contentiQn were to be right we would have to import remark (ii) against entry 294 into entry 295, a thing which obviously is 111ot permissible while construing these entries."}}, {"text": "Girdharilal Bansidhar,(1", "label": "OTHER_PERSON", "start_char": 30198, "end_char": 30222, "source": "ner", "metadata": {"in_sentence": "In Girdharilal Bansidhar,(1) the principle laid down was that the High Court in its writ jurisdiction does not sit in appeal over the correctness of the decision of the authorities under the Sea Customs' Act on appreciation of entries in the Hand Book or in the Indian Tariff\n\nAct."}}, {"text": "Act on appreciation of entries in the Hand Book or in the Indian Tariff", "label": "STATUTE", "start_char": 30399, "end_char": 30470, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 32183, "end_char": 32191, "source": "regex", "metadata": {"statute": null}}, {"text": "P. Anand", "label": "OTHER_PERSON", "start_char": 32883, "end_char": 32891, "source": "ner", "metadata": {"in_sentence": "P. Anand's case(') was not dissented from but only distinguished, and therefore, the High Court in the present case was justified in follow- B ing it."}}, {"text": "Girdharic\n\nlal", "label": "OTHER_PERSON", "start_char": 33718, "end_char": 33732, "source": "ner", "metadata": {"in_sentence": "The real distinotion, however, between the two cases was that the decision of the Collector\n\nin D. P. Anand' s case ( 1) was not, as was the decision in Girdharic\n\nlal's case,(2) under which of the two comwting entries the import- 0 ed goods fell but that the imported goods in question, if assembl_.", "canonical_name": "Girdharic\n\nlal"}}, {"text": "Girdharilars", "label": "OTHER_PERSON", "start_char": 34100, "end_char": 34112, "source": "ner", "metadata": {"in_sentence": "Further, the articles in question, even when assembled together, were not prohibited articles as in Girdharilars case(').", "canonical_name": "Girdharic\n\nlal"}}, {"text": "Girdharilal", "label": "OTHER_PERSON", "start_char": 34122, "end_char": 34133, "source": "ner", "metadata": {"in_sentence": "Girdharilal's case(2 ) is clearly distinguishable because it is not as if motor cycles and scooters are prohibited articles as was the case there.", "canonical_name": "Girdharic\n\nlal"}}, {"text": "Madras General Sales Tax Act", "label": "STATUTE", "start_char": 34835, "end_char": 34863, "source": "regex", "metadata": {}}, {"text": "s. 18A", "label": "PROVISION", "start_char": 34954, "end_char": 34960, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Act,\n\n1939", "statute": "the Madras General Sales Tax Act,\n\n1939"}}, {"text": "Aug. 17, 1960", "label": "DATE", "start_char": 35428, "end_char": 35441, "source": "ner", "metadata": {"in_sentence": "Aug. 17, 1960 (H.C.)\n\n(2) [1964]7 S.C.R. 62."}}, {"text": "LR. 67 I.A. 222", "label": "CASE_CITATION", "start_char": 35511, "end_char": 35526, "source": "regex", "metadata": {}}, {"text": "Firm\n\nll/uri Subbayya Chetty & Sons", "label": "ORG", "start_char": 36249, "end_char": 36284, "source": "ner", "metadata": {"in_sentence": "The Court also pointed out that in the 'Firm\n\nll/uri Subbayya Chetty & Sons' case,(~) it had been said that Mask & Co.'s case(8 ) was an authority for the proposition that non-compliance with the provisions of the statute would render the entire proceedings before the authority illegal and without jurisdiction."}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 36720, "end_char": 36732, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8(1)", "label": "PROVISION", "start_char": 37024, "end_char": 37036, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 37073, "end_char": 37080, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(1)", "label": "PROVISION", "start_char": 37654, "end_char": 37661, "source": "regex", "metadata": {"statute": null}}, {"text": "Dua", "label": "JUDGE", "start_char": 37663, "end_char": 37666, "source": "ner", "metadata": {"in_sentence": "Dua, J., speaking for the Bench."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 37712, "end_char": 37716, "source": "regex", "metadata": {"statute": null}}, {"text": "(1964) 1 S.C.R. 752", "label": "CASE_CITATION", "start_char": 38296, "end_char": 38315, "source": "regex", "metadata": {}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 38627, "end_char": 38634, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 38790, "end_char": 38797, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 38815, "end_char": 38819, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 8", "label": "PROVISION", "start_char": 38850, "end_char": 38856, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 38957, "end_char": 38964, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 188", "label": "PROVISION", "start_char": 39056, "end_char": 39062, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 39074, "end_char": 39085, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "England", "label": "GPE", "start_char": 39313, "end_char": 39320, "source": "ner", "metadata": {"in_sentence": "This is also the view taken by courts in England."}}, {"text": "Pearce", "label": "OTHER_PERSON", "start_char": 41134, "end_char": 41140, "source": "ner", "metadata": {"in_sentence": "....\n\n''\n\nTo the same effect are also the observations of Lord Pearce at page 233."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 43210, "end_char": 43214, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 43279, "end_char": 43290, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 45916, "end_char": 45923, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 45935, "end_char": 45949, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "L.R. 67 IA. 222", "label": "CASE_CITATION", "start_char": 46347, "end_char": 46362, "source": "regex", "metadata": {}}]} {"document_id": "1971_3_573_581_EN", "year": 1971, "text": "RAM JANKI DEVI & ANR. v.\n\nM/S. JUGGILAL KAMLAPAT\n\nJanuary 28, 1971\n\n[G. K. MITTER AND A. N. RAY, JJ.]\n\nDeposit and Loan-Difference between-Tests-Demand for part of loan whether sftlrts limitation.\n\nTwo groups known as the Singhania group and the Gupta Group were partners in M/ s. India Supplies. Both were also interested in the ; business of Lakshmi Ratan Cotton Mills. In the present litigation the GJpta group\n\nwas represented by the appellants and the Singhania group bY the respondent.\n\nIn the year 1942 Lakshmi Rattan Cotton Mills was the creditor of Ml s. India Supplies for the approximate sum of Rs. 4,00,000. Lakshmi Ratan Cotton Mills was a debtor to the respondent for the approximate sum of Rs. 4,00,000. Lakshmi Ratan Cotton Mills demanded the sum of Rs. 4,00,000 from India Supplies. India Supplies could not repay Lakshmi Ratan Cotton Mills. Thereafte\\' India Supplies proposed that the respondent should deposit a sum of Rs. 4,00,000 with India Supplies to wipe out the indebtedness of the India Supplies to Lakshmi Ratan Cotton Mills.\n\nThe responook) under the entry 30 September, 1942 shows that according to the letter of India Supplies the sum of Rs. 4,00,000 was deposited in the name of lndil\\ Supplies. The other books of account of the plaintiff are khata (ledger) and nakalbahi (journal).\n\nThe respondent also relied on the pass book entry being Ex-A-4 which shows that a sum of Rs. 4,00,000 was withdrawn on 30 September, 1942 by the appellant from the respondent as a banker and along with the interest from time to time the amount of Rs. 4,00,000 stood with the appellant in the deposit account. The balance-sheet of the appellant as on 30 June, 1943 being Ex.A-4 showed that a sum. of Rs. 4,00,000 was unsecured loan from the respondent.\n\nCounsel on behalf of the appellant contended that the use of the word 'deposit by itself occurr4tg eiter in the roznamcha or in the letter dated 29 September, 1942 wntten by Ram Ratan Gupta would not be decisive of the question whether it was a case of deposit of the sum of Rs,_ 4,00,000 by the respondent with the\n\nappt'llant under an agreement that the same would be paid on\n\nA demand. At one stage in the proceedings there was a controversy as '(O whether Ram Ratan Gupta had authority to bind the appell:mt by the letter dated 29 Sepmber, 1942. There i> evidence that Ram Ratan Gupta looked after the business of the appellant and acted on behalf of the firm of the appellant in ordinary mercantile transaction. Counsel for the appellant in all fairness did B not question the authority of Ram Ratan Gupta to bind the firm of the appellant.\n\nIt was said by counsel for the appellant that there were six principal reasons to indicate that it was a case of an ordinary loan of Rs. 4,00,000 and not an instance of the sum of Rs. 4,00,000 being deposited by the respondent with the appellant under an agreement that the same would be paid on demand. The primary and pre-eminent point emphasized by the appellant was the backgJ'OUnd of the transaction between M/s India Supplies on the one hand and Lakshmi Ratan Cotton Mills on the other, that moneys were lent and advanced by Lakshmi Ratan Cotton Mills to India Supplies from time to time and aU that happened was that in place of Lakshmi Ratan Cotton Mills the respondent became the creditor of the firm of the appellants. There was just a substitution of the creditor debitor relationship by substituting the respondent in place of Lakshmi Ratan Cotton Mills as the creditor. Secondly, it was said that there was never any payment of money in cash and adjustment entries were made in thei books of the respondent. Thirdly, monies were not given notionally for the convenience of the respondent banker. Fourthly, monies were required by the appellant for his own business because Lakshmi Ratan Cotton Mills refused to help the appellant any more. Fifthly, Ex. A-4 the pass book would show that it was a case of advance of Rs. 4,00,000 by the respondent to the appellant, and finally, the appellants were not bankers and therefore it was improbable that the respondents who were bankers would deposit with the traders the sum of Rs. 4,00,000.\n\nCounsel for the appellant relied on the deciion of this Court in V. E. A. Annama/ai Chettiar & Anr, v. S. V. V. S. Veerappa Chettiar(') in support of the proposition that the answer to ihe question as to whether it was a loan or deposit would not deoend merely on the terms of the document but had to be judged from !he intentfon of the parties and the circumstances of the case. That 1s manifestly the correct approach.\n\nThe case of a deposit is something: more than a mere loan of money. It will depend on .the facts of each case whether the transaction clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the\n\n(1) A.T.ll, 195H.C 12\n\ntransaction and the manner in which parties treated the .trans- A • action will throw light on the 'true form of the transaction.\n\nThe Judicial Committee in Nawab Major Sir Mohammad Akbar Khan v. Attar Singh & Ors. ( 1) spoke of the distinction between the deposit and loan to be that the two terms were not mutually exclusive but that a deposit not for a fixed term did not B seem to impose an immediate obligation on the deposiee to seek <>ut the depositor and repay him.\n\nThough documentil bl' themselves are not conclusive of the question thy have th~ evidentiary value and if they. corroborate the oral evidence the Importance of the documents is magnified.\n\nThe letter Ex. A-5 bears the date 29 September, 1942 and is con- C temporaneous with the entire transaction between the appellant and the respondnt. The letter was as follows :-\n\n\"Messrs. Juggilal Kam!apat Koth!, Cawnpore.\n\nDear Sirs, D\n\nAs per my talk with Sir Padampat !shall thank you to credit a sum of Rs. 4 lacs (Rupees four lacs only) to the account of Messrs Lakshmirafan Cotton Mills Co.\n\nLtd. and debit the same to the account of India Supplies\n\nas deposit at the usual rate of interest as agreed upon by the partners of the said firm.\n\nE ..\n\nThanking you, Yours faithfully,\n\nSd/- R. Ra'1n Gupta\".\n\nThe intrinsic evidence in the letter is that the sum of Rs. 4,00,000 F was debited to India Supplies as deposit. The words \"debited as deposit\" were criticised by counsel for the appellant to be meaningless. Too much precision cannot always be expeced in. regard to use of foreign language by merchants and traders m their short memorandum. The character of deposit is an inherent impression in the writing. The rozmancha rbfers to the letter and is therefore G corroborative of the letter and the terms threof. The letter further shows that the terms were agreed to by the partners of the firm namely, the partners of India Supplies and of She respondent.\n\nThe' respondent's partner Padampat Singhania gave oral evidence and substantiated the terms of the letter and the respqndenfs case.\n\nPadampat Singhania was the person. on ehalf of the respond.ent H who carried on the negotiations. H1sev1dence was therefore llllportant. The appellants did not examine themselves and did not\n\n(I) 63 I.A. 279.\n\nJANK! DEVI V. JUGGJLAL (Ray, J.) 579\n\ngive any evidence challenging the oral testimony of the respondent's partner. On the contrary, _the correctness of the letter Ex.\n\nA-5 was accepted by the appellants' witness Ram Ratan Gupta the author of the letter.\n\nThe roznamcha entry was proved by Gopi Kishan Saraugi a munim of the plaintiff. The roznamcha entry was as follows :-\n\n' \"4,00,000 India Supply Ke nam Asoj Badi Chhat : 30-9-42 Lakshmiratan Cotton Mill Ki Chithi se apke nam mada deposiot karaya panna 2486\"\n\nHis evidence was that the books wer~ systematically kept on 'mahajani' system in connection with the business. The witness proved the Khata, the raznamcha and the nakalbahi entries. In cross-exanrination of Gop_i Kishan Saraugi it was suggested that the entry under the date 30 September, 1942 in the roznamcha was not written at the same time. The suggestion was that there was interpolation of the words \"deposit karaya\" in the roznamcha entry.\n\nIn cross-examination of Padampat Singhania questions were asked about the rokar, khata, nakal bahi and roznamcha entries.\n\nPadampat Singhania said that the entry of Rs. 4,00,000 was not recorded in the daily cash book but was recorded in the roznamcha. He also said that credit and debit entries were made in the roznamcha.\n\nPadampat Singhania said that the entries were made by Gopi Kishan Jaipuria who was in a dying condition at the time the witness gave evidence.\n\nIt was suggested to Padampat Singhania that the words \"deposit karaya\" in the roznamcha entry were not written at the same sitting. Padampat Singhania denied that, Counsel for the appel- . lant contended that in the absence of Gopi Kishan Jaipuria the F account books were not proved.\n\nThis is unacceptable for two reasons. First, the account books were shown in cross-examination of Padampat Singhania and question were asked on the same.\n\nIt is not open to the appellant to complain of lack of proof of account books when the documents are shown to the witness in cross-examination. Secondly, both Padampat Singhania and Gopi G Kishan Saraugi spoke of the proper maintenance and keeping of books of account and that it was not possible 1lo arrange the presence of the writer of the entry.\n\nSuggestion of tampering is a serious one. The original entries were called for from the High Court. We had occasion to look into the originals. We are in agreement with the High Court that the suggestion of fabrication is utterly unmeritious. The words 'deposit karaya' appear without H any doubt to have been written at the same time as the rest of thti writing. It is in evidence that the reference to the page of th¢ panna under that entry was written later inasmuch as the page\n\nof the panna was put on when the panna was put on when the A panna book was writte!l.\n\nThe most important documentary evidence of the appellant namely. their book of account was not produced. These books of the appellant would have shown how they treated the transaction, namely, whether it was a case of deposit or loan. The irresistible infffence from the non-production of books of the appellant would arise that they would have supported the respondents caS!l and that is why they were not produced. The appellant's contention that the background of the transaction was mercantile loan, would be more a conjectu_re than a conclusion to be arrived at._ The financial transactions between the respondent and Lakshmi Ratan Cotton Mills were running accounts. It would be more consistent to hold that by allowing India Supplies a deposit of Rs. 4,00,000 India Supplies would be relieved of the situation of repaying the money immediately. It is precisely :, Ccause of the then inability of India Supplies to repay Lakshmi Ratan Cotton Mills that the parties resorted to the mode of having the use of the money by way of deposit.· The transaction was between the appellant, the respondent and Lakshmi Ratan Cotton Mills.\n\nAll figured in the transaction. A more loan of Rs. 4,00,000 would not have sufficed the needs of the appellant who were then unable to pay the dues of Lakshmi Ratan Cotton Mills.\n\nSome of the partners of the appellant and the respondent in\n\n the year 1942 were common. It would be more explicable and E natl1ral course of events that monies would be kept in deposit with the appellant in order toenable them to have financial ac.commodation without immediate worry of repay!Ilnt. The mere fact t)lat money in specie was not paid would not be destructive of deposit The respondent acted as bankers.\n\nThe way in which t.he respondent made entries in the pass ook of the appellant is F consistent with thdr roznamcha, khata and nakal bahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transactions between the appellant and Lakshmi. Rantan Cotton Mills shows that the appellant.hat! to be j:¥1t on a footing of financial stability by giving the appellant the use of the sum of Rs. 4.00,000 for a long time.\n\nThe absence of any negotiable instrument is significant. A hundi G or a promissory note would have been consistent with the case of a loan.\n\nThe relationship between the P?rt.ies, the surrounding circumstances at the time of the transaction, the pecuniary position of the appellant are all overwhelming feafures to corroborats the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant.\n\nThe award dated 18 January, 1944 has also a tale to tell. There were disputes between the partners of the various businesses_ , in\n\nwhich the Singhania and Gupta groups were interested.\n\nThese disputes were before the arbitrators.\n\nOne of the terms in the award was that the award in respect of Lakshmi Ratan Cotton Mills and India Supplies \"do not cover the advances which either party or their separate firms may have made. to all or any of them or their moneys which may be in deposit with them and they shall be payable and paid in their usual course\". This direction in the awlird shows that there were advances which were in the nature of deposit and were not covered by the award. The award would have evidentiary value to show as to how the parties treated and understood their financial dealings.\n\nIt is also significant t!hat when the respondent demanded the money by a letter dated 27 April 1953 (Ex. 7) the appellant in\n\ntheir reply dated 5/6 May, 1953 (Ex. 6) totally denied the claim.\n\nThe respondent set out aII the facts of deposit of the money with the appellant.\n\nThe a12peIIant never said that it was a case of advancing loan. The non-production of the appellant's accounts coupled with the appellan~ staying away from the witness box indicates the inherent infirmities in the appellant's case.\n\nCounsel for the appellant contenl there was no provision for renewal; secondly there was no provision for payment of customary dues; thirdly the property was to be enjoyed by the defendants by way of interest on their advance after payment of land tax to the State;\n\nfourthly the payment of land tax was not a deduction from rent or per quisites; fifthly there was a provision for surrendering the property with a registered release at the cost of the transferee on the_r.eceipt of the consi deration of kanam and the balance amount; sixthly when the consideration was paid back the counter-pattam deeds and prior deeds would be returned; and finally there was liability to pay interest on the advance and possession and enjoyment of the property was in lieu of interest. The proportion of the amount advanced under Ex. B-6 to the value of the property was also substantial [589 E-0; A-Cl\n\nParameswaran Embranthiri v. Narasimha Nambudri, [1962] K.L.T. 404, Sankunni Variar & Ors. v.\n\nNeelakandlum Nambudripad & Ors., I.L.R. (1944] Mad. 254. Cherumanalil Lakshmi & Ors. \\', Mulivil Kunninamkandy Narayani & Ors., (1%7] S..C. R. 314, Kunhiparan v. V. Naicken & Ors.,\n\n(1967] K.L. T. 646 and Kunhirama Nambiar v.\n\nPairu KutrU<>, [1969] K.L.T. 62, referred to.\n\nHussain Thangal v. Ali, [1961] K.L. T. 1033, approved.\n\nPote/ Bhuder Mayji etc. v. lat Mamdaji Ka/aji (deceased) throogh L.\n\nRs. Jat Singh Khan Mamdaji etc. [1969] 3 S.C. R. 690, applied.\n\nE CIVIL APPELLATE JURISDICTION: Civil Appeal No. 980 of 1967. .\n\nAppeal by special leave from the decree dated the March 29, 1967 of the Kerala High Court in Second Appeal Suit No. 374 of 1965.\n\nT. Narayanan Nambyar and A. V. V. Nair, for the appellants.\n\nK. T. Harindranath and A. S. Nambyar, for respondents Nos. 1 to 4 and 6(1) and 6(2).\n\nThe Judgment of th, e Court was delivered by\n\nRay, J.-This is an appeal by special leave against the judgment dated 29 March, 1967 of the High Court of Kerala confirming the decree of the lower appellate Court declaring that the sum of Rs. 1000/ - is due to defendants No. 10 to 17 as legal representatives of defendant No. 2 on the mortgagimentioned in the plaint and that the plaintiffs having deposited .the said sum of Rs. 1000/- on the file of the Court of the Munsif, Cannanore,\n\nthe defendants No. 10 to 17 do surrender Quiet and peaceable\n\nession of the property described in the plaint ti<' the plaintiff No. 7 with all documl?nts relating to the property in their possession and further that the defendants No. 10 to 17 do pay to the\n\nplaintiff No. 7 half of the mesne profits from 22 December, 1953 till the date of surrender of possession.\n\nThe relevant documents are Ex. B-6 and Ex. A-1. Ex. B-6\n\nis a kanam-kuzhikanam. Ex. A-1 is its counter-part. They are both dated 1 December, 1941.\n\nThe transaction thereunder is a composite one, a kanam in respect of taks 1 to 3 of-i(em 1 which constitute properties in suit and a kanam kuzhikanam in respect B of tak 4 of item 1 and item 2 which are not the subject matter of this suit. The kanamdars are defendants No. 1 and 2. In partition under Ex. 3 the rights under Ex. B-6 have been divided equally between the defendants No. 1 and 2 but the properties as such are not divided. The appellants being the legal representatives of defendant No. 2 had thus an undivided moiety in the properties in suit. The original plaintiff was an assignee of the jenmi (the land owner) who granted Ex. B-6. On the death of the original plaintiff, her initerest devolved on plaintiffs No. 2 to 6 who assigned the same to plaintiff No. 7. The suit is for redemption of the kanam on the properties in suit. Subsequent to the institution of l!he suit, defendants No. 3 to 9 being the legal representatives of defendant No. 1 and being respondents No. 7 to 13 in this appeal surrendered their moiety in the suit kanam, to plaintiffs No. 2 to 6 and thereafter the suit proceeded in regard to the moiety of the kanam that belonged to defendant No. 2 and his legal representatives, namely, the appellants.\n\nThe only question in this appeal is whether the appellants are protected against eviction by reason of their contenl!on that Ex.\n\nP-6 created a tenancy or whether the respondents were entitled to possession of the properties, by reason of their rival co11:C:ntion that Ex. B-6 was a mortgage transaction and the respondents were entitled to redeem the mortgage on the expiry of the rtipulated period.\n\nThe Malabar Tenancy Act, 1929 was in force at the time of the institution of the suit but it is common ground that rights and liabilities of the parties are to be juc!ged under the Kerala Land 'Reforms Act, 1964 by reason of the provisions contained in section 132(1)(a) thereof.\n\nThe relevant provisions of section 2(22) of the 'Kerala Act of 1964 which defines kanam are as follows :-\n\n\"(22) 'kanam' means the transfer for consideration, in G money or in kind or in both, by a landlord of an interest in specific immovable property to another person or the latter's enjoyment, whether described in the document evidencing the transaction as kanam or kanapattam, the incidents of which transfer Include- H\n\n(a) •.••••••• •·•·• •••••••••••• (b)-•..•..••..••.•••••.•••••••••••\n\nMANOALA KUNHIMINA UMMA V. PUTHIVAVEOTTIL PARU 585 AMMA (Ray, J.)\n\n(c) payment of michavaram or customary dues, or renewal on the expiry of any specified\n\n\"od \" pen ........ .\n\nIt is indisputable that a kanam within the above definition\n\ninvolvs payment of michavaram or customary dues or renewal on t'.1;: expiry of any specified period.\n\nIn Ex.B-o there is no provision for renewal or for payment of customary dues.\n\nThe pre-eminent question is whether there is a provision for payment of michavaram.\n\nBroadly stated, Ex.B-6 executed by defendants No. I and 2 stipulated that they would pay the kanam of Rs. 1400 charged on taks 1 to 3 of item No. 1 in the Schedule to Ex.B- of !hq seC'tion which relates to acting upon the instrument will obviousl r shut out any secondary evidence of such instrument, for, allowing such evidence to be let in when .the original admittedly chargeable with duty was not stamped or insufficiently stamped, would have the effect of the document being \"acted upon\" by the person having by law or authority to receive evidenee, Proviso (a) is applicable only when the original instru!llent is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.\n\nClearly, secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso wbich enjoins upon the authority to receive nothing in evidence except the\n\ninstument itself. There is no scope for inclusion of a copy of a do-:ument\n\nas an instrument for the purpose of the Stamp Act. [596 DJ\n\nIf Section 35 only deals with original instruments and not copies, section 36 cannot be so interpreted so as to allow secondary evidence of an instrurrient to have its benefit.\n\nThe words \"an instrument\" in Section 36 must have. the same meaning as in Section 35. The legislature only relented from the st'rict provisions of Section 35 .in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. [596 HJ\n\nStflle nf Bihar v. Karam Chand Thapar & Bros. Ltd. [1962J 1 S.C.R. 827; Raja of Bobbili v. Inuganti China Sitaramaswami Garn, 23 Madras 49, Thaiji Reebi v. Tirumalappa Pillai, 30 Madras 336 at 337 and Chidambaram v. Mayyappan, A.I.R. 1946 Madras 298, referred to.\n\nObservations in Maung Po Htoo and three v. Ma Ma Gyi and one, LL.R. 4 Rangoon 363 and Saf!/IGvati v. Pal/ayya, AJ.R. 1937 Madras 431 at 432, disapproved.\n\nPonnuswami v, Kailasar!1,, A.l.R. 1947 Madras 422, and A/imana Sahiba v. Subbarayudu, A.LR. 1932 Madras 69'3, explamed..\n\nCML APPELLATE JURISDICTION: Civil Appeals Nos. 2535 to 2537 of 1966.\n\nAppeals by special \\eave from the judgment and decree dated September 22, 1966 of the Andhra Pradesh High Court in Second Appeals Nos, 875 of 1961, 488 and 516 of 1962.\n\nA. K. Sen, A. V. Rangam and T. Raman, for the appellant (in all the appeals) :\n\nB. V. Subramanyam and B. Parthasarathy, for respondents \"'los. 1 and 2 (in all the appeals).\n\nThe Judgment of the Court was delivered by\n\nMitter, J. The maip. question in these three appeals is, whe. ther reception of secondary evidence of a written agreement to grant a lease is barred by the provisions of ss. 3 5 and 3 6 of the Indian Stamp Act. ·\n\nThe relevant facts are as follows.\n\nThere is a rice nlill in Bhimavaram, West Godavari Distrj.ct, which was formerly owned by the appellant along with respondents 3, 4 and 5. The mill was built on a site with an area of Ac. 1-75 by one K. N. Raju who had obtained a lease thereof from the guardian of respondents 1\n\nand2. It was executed on 21st December 1941 and was to expire on 17th July 1956. The appellant and respondents 3, 4 and 5 were successors-in-interest of the said leasehold rights. Respondents 1 and 2 served notice of ejectment on the lessees to quit the site and deliver possession on the expiry of the said lease.\n\nAccording to the lessees there were negotiations for a new lease.\n\nRespondents 1 and 2 demanded enhanced rent and an agreement was ultimately arrived at on January 6, 1957 between the appellant and respondent No. 5 for themselves and on behalf of respondents 3 and 4 on the one hand and respondents 1 and 2 on the other for grant of a new lease for a period of thfoty years commencing on January 1, 1957. The rent was fixed at Rs. 540/- per annum payable every two months. There was an option given to the lessors to purchase the rice mill at a price to be fixed by the President of the Rice Mills' Association but in case the said option was not exercised, the lessees were entitled to remove the structures of the mill. The lessees were to continue in possession and a deed of lease was to be executed and registered within a short time.\n\nThe agreement was written on two sremp papers of Rs. 0-12-0 each and signed by the appellant and the 5th respondent on the one hand and respondent No. 1 on his own behalf and on behalf of respondent No. 2.\n\nThe document was delivered to the respondent No. 1 aftX:r execution.\n\nThe appellant's further case is that thereafter he effected considerable improvements to the mill costing about Rs. 30,000/-\n\nand purchased the shares of respondents 3 and 4 in the said mill A but respondent No. 5 who had originally joined the appellant in the suit for specific performance of the said agreement sold his share in or about September 1965 to respondent No. 6 herein.\n\nOn March 12, 1957 respondents 1. and 2 instituted a suit O.S. No. 81 of 1957 in the court of the Distriot Munsif of Bhimavaram against the appellant and responde!lts 3, 4 and 5 besides certain other persons who were in occupation of the site, for re• covery of possession after removinz the rice mill and structures standing thereon on the basis that on the expiry of the old lease they had be'Come entitled to possession.\n\nRespondents 1 and 2 instituted another suvt O.S. No. 100 of 1957 on 4th April, 1957 in the same court claiming damages from the appellant and respondent No. 5 for failure to deliver 'Ille site from 1st January, 1957 till dare of delivery of possession. In paragraph 6 of the plaint in this sui~ they expressly stated that they would file a separate suit to recover the future mesne profits. The total claim in this suit was computed at Rs, 4,700/- being the amount due for 94 days from 1st January, 1957 to 4th Apiil, 1957 at the rate of Rs. SO/- per day. On April 5, 1958 the appellant and respondent! No. 5 instituted O.S. No. 92 of 1958 against respondents 1 to 4 praying for specific performance of the agreement to lease mentioned above with a direotion that the respondents 1 and 2 should execute the lease deed. By their written statement filed in O.S. No. 92 of 1958 respondents 1 and 2 denied the execution of the agreement to lease while in the two suits for recovery of possession and damages for illegal occupation the appellant and respondent No. 5 pleaded the aforesaid agreement for lease in defence and submitted that they were entitled to remain in possession without any liability as to damages.\n\nThe three suits were tried together. As respondents 1 .ihl.d 2 did not produce the original agreement which according to the appellant had remained with them, oral evidence was called by the appellant to prove the execution of the said document. In his judgment the learned Munsif held:\n\n\"The plaintiffs have no right to lead any oral evidence in respect of the suit agreement to lease dated 6-1-1057.\n\nHowever, in order to appreeiate the case put forward by the plaintiffs in the absence of the agreement to.lease oral evidence has been recorded to determine whel!her the plaihtiffs are entitled to specific eerformance as the full facts must be before the court. ' Examining the evidence the learned Munsif recorded his finding that;\n\n-~ '-.,-.\n\n\"The plaintiffs on whom the burden lies have not proved by evidence of P.Ws. 1 to 5 and 7 which is interested and developed that the agreement to lease dated 6-1-1957 is true and valid.\" O.S. No. 92 of 1958 was therefore dismissed. O.S. No. 81 of 1957 was decreed against the appellant and others and they were directed to deliver vacant and peaceful possession after re)lloving the constructions and the mill thereon on or before 9th July 1960.\n\nSuit No. 100 of 1957 was decreed against the appellant and respondent No. 5 for Rs. 117-2-10.\n\nThe Subordinate Judge, Narsapur who heard the appeals from the judgment and decrees of the learned Munsif set them aside.\n\nThe suit for specific performance of the contract of agreement to lease was decreed and defendants 1 and 2 in that suit were directed to execute and register a lease deed from 1st January, 1957. He accepted the oral evidence tendered on behalf of the plaintiffs in that suit and recorded that the objectio11-c.regarding the admissi• bility of the oral evidence was raised only at the time of the arguments on the ground that the agreement was written on a stamp paper of Rs. 1-8-0 when it should have been written on a paper with a stamp of Rs. 60/-. According to the learned Subordinate Judge the defendants had suppressed the agreement to lease whereby the plaintiffs were deprived of the opportunity of making good the deficiency of the stamp. The learned appellate Judge held further that the conditions mentioned in s. 'l.7-A of the Specific Relief Act had been fulfilled. He also found that the parties were contemplating the execution of a deed of lease subsequent to the agreement and the mere fact that plaintiffs continued their possession aftler thtNlXpiry of the period of the previous lease did n6t take the case out of the purview of s. 27-A of the Specific Relief Act.\n\nThe High Court in Second Appeal went elaborately into the question of the admissibility of the oral evidence regarding the agreement to lease and held that.\n\n\"although the objection was raised by defendants 1 and 2 in the trial court at the time of the final agruments and not before the oral evidence was received in regard to the admissibility of oral evidence, even then since sec-\n\n- ti on 3 6 is not attracted to such an objection, the oral evidence cannot be acted upon. It is inadmissible in evidence and it cannot be received for any purpose.\"\n\nThe appellant before us challenges this finding of the High Court.\n\nLearned counsel for the appellant Mr. Sen argued that die admissibility of secondary evidence, be it oral or in writing, must\n\nbe primarily decided in tenns of the Indian Evidence Act. Inasmuch as the original document which was insufficiently stamped was suppressed by the defendants in the suit for specific performance, secondary evidenee of the contents of the document could be Jed in terms of s. 65(a) of the Evidence Act. The Evidence Act imposed no bar to the reception of oral evidence by way of secondary evidence to prove the terms of the agreement to lease\n\nwhich was in writing and duly executed. According to counsel the Stamp Act did not create a bar with respect to the reception of secondary evidence to prove a document which was unstamped or insufficiently stamped in any case where the party seeking tlo rely upon the execution of the document and the tenns thereof offered to pay the peniilty in terms of s. 35 of the Stamp Act.\n\nAccording to Mr. Sen s. 35 raised a bar only in cases which were expressly excluded by proviso (a) to s. 35 and in others where the party seeking to rely on the document was not agreeable to pay the deficiency in the stamp together with tl\\e penalty in terms of the said proviso. l\\fr. Sen further argued that the whole object of s. 35 of the Stamp Act was that the Government revenue due by way of stamp should be protected. But even then s. 36 carved out an exception thereto and allowed the reception of an insufficiently stamped instrument in evidence when it had been admitted without objection at the initial stage. It was not reasonable, according to counsel to limit the operation of s. 3 6 only to cases where rthe original instrument was admitted in evidence without objection and logically oral evidence to prove the contents of a document which was insufficiently stamped should be subject to the same but no further infinnity and once such oral evidence was recorded without objection of the party against whom it was tendered, particularly where such party was responsible for the suppression or non-1mxluction of the document, it should be acted upon by courts of law if the party tendering oral evidence was agreeable to make up the deficiency in the stamp and pay the penalty in tenns of s. 35.\n\nWe find ourselves unable to accept the submissions made on behalf of the appallant.\n\nThe Indian Evidence Act which was enacted in 1872 consolidates, defines and amends the law of evi• dence. By various Chapters it deals with matters as to how facts are to be proved and w!Jich facts need, not be proved. S. 59 of the Act lays down that aU facts except the contents of documents may be proved by oral evidence. Documentary evidence is dealt With in Chapter V ands. 61 provides that the contents of the document may be proved either by primary evidence or secondary evidence. Under s. 62 primary evidence means the document itself produced for inspection of the court. S. 63 shows the different kinds of secondary evidence admissible with regard to documents. It includes several kinds of copies as specified in sub-els.\n\n.. c\n\n(1) to (3} of the section, counterparts of documents as against the parties who did not execute them in terms of cl. ( 4) and oral accounts of the contents of a document given by some person who has himself seen it in terms of cl. (5). Under s. 64 dbcuments must be proved by primary evidence except in cases mentioned thereafter.\n\nSection 65 allows secondary evidence to be given of the existence, condition or contents of a document in circumstances specified in els. (a) to (g) thereof.\n\nUnder s. 91 when the relevant portion of a contract or of a grant or of any other disposition of property has been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself or secondary evidence ol its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained .\n\n, As the first court of appeal recorded the finding that it was the defendants who were responsible for suppression of the orig!!lal agreement to lease, a finding which was accepted by the High Court, it must be held that no objection to the reception of secondary evidence by way of oral evidence can be raised under the pro visions of the Indian Evidence Act.\n\nThe Indian Evidence Act however does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Indian Stamp Act. The Stamp Act which is now in force is an Act of 1899 but it had a fore-runner in a statute of 1879. Chapter IV of the Stamp Act deals with instrume!l'ts not duly stamped. Section 33 (1) of this Act provides that :\n\n\"Eyery persn be droppe\\I. In this application. it was admitted that the prosecution had arisen out of a raid dated October '17,\n\n1960 at the premises of tile accused \"when allegedly samples of vmegar were taken which are stated to be adulterated because of the presence of sulphuric acid\".\n\nIt was pleaded that the petitioning accused had secured in 1960 a licenee under the Emit Order and vinegar whether brewed or synthetic being a food product and standard specification for such vinegar being tabulated in Part XIV attached to the Second Schedule Of the Fruit .Order, prosecution without the previous sanction of tile Licensing Officer as required by cl.. 15 of the said Order was unauthorised. Prosecution under the Adulteration Act was on this ground pleaded to be incompetent. In the application reliance in support oi . this plea was placed on the unrep9rted Bench decision of the Punjab High Court in Raj Kumar's case in which according to the accuse(). it had been held that a licensee under the. Fruit Order could not\n\nbe prosecuted for any contravention 6f that Order or of the Adulteration Act without the previous sanction of the Licensing Autho- . rity appointed under the Fruit Order. The trial magistrate basing himself on an unreported single Bench decision of the Punjab High Court and on s. 26 of the General Clauses Act rejected this appii- F cation.\n\nOn revision, the Additional Sessions Judge relying on the decision in Raj Kumar's. case (supra) made a reference to the High Court recommending that the proceediings be quashed. J. S.\n\nBedl, J., relying on Raj Kumar's case (supra) quashed the proceedings.\n\nS. K. Kapur J ., who cemifiecl the case to be fit for appeal after quoting a passage from Raj Kumar's case (supra) considered the question raised to be important enough for appeal G\n\nto this Court.\n\nThe general principles governing implied repeal appear to us to have long since been settled.\n\nThe difficulty is normally experienced in their application to a given: case.\n\nFrom the passage quoted by Kapur J., from the unreported Bench decision in Raj Kum:Us case (supra) upholding the implied repeal of the Adulteration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them.\n\nWe accordingly\n\n,;_.I\n\nconsider it proper to broadly restate the general rule.\n\nIt was laid ln Paine v. Stater( 1) that when two Acts are inconsistent or repugnant the later will be read as having impliedly repealed the earlier.\n\nAs the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence. of express or at least clear and unambiguous indication to that effect.\n\nThis is essential in the interest of certainty and consislllncy . in the laws which the ctizens are enjoined and expected to obey.\n\nThe legis• lature, which may generally be presumed to know the existing law, is not expected to intend to create coµl'usion by its omission to express its intent to repeal in clear terms.\n\nThe courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly rep.ugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time.\n\nThe repeal must, if not express, flow from necessary implication as the only intendmeait.\n\nThe provisions must be wholly incompatible with each other so that the two provisions operating together would lead to absurd consequences, which intention could not rea:ionably .be imputed to the legislature. It is Qnly when a consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained.\n\nTo determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning nd effect both of the earlier and the later statute. Until\n\nthis is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them.\n\nThe meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the .. earlier law shal! cease or shall only be supplemented. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict\n\nthough apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict should also so far as rasonably possible, be construed to be in harmony with each other and it is onl)twhen there is an irreconcilable conflict betwee:n the new provision and the prior statute relating to the same subject matter, that the former, being the later expression of the legislature,. may be held to prevail, the prior law yielding to the extent of the conflict. The same rule of irreconcilable repugnancy controls impl!e? repeal. of a general by a special statute. The subsequent provmon treatmg a phase of the same general subject matter in a more minute way may be intended to imply repeal pro-tanto of the\n\n(I) [1883] lt Q.B.D. 120.\n\nrepugnant general provision with which it cannot reasonabjy co- A exist. When 1Uiere is no mconsistency beween the general and the special statute the latte( may well be construed as supplemeptary.\n\nIn the light of ihese broad guidelines we may now examine the :two statutes as they stood in 1960 because the cases with which we are concerned relate to that year.\n\nThe history and the schem~ of the two statutory provisions would be helpful in discovering the legislative intent on the question of implied repeal.\n\nTurning first to the Adulteration Act, it was enacted by the Parliameuit to make provision for the prevention of adulteration of food and it came into force on June l, 1955. Previously corresponding laws on adulteration of foodstuffs were in force in different Stlltes, having been enacted by their respective legislatures. All those laws were repealed by s. 25 of the Adulieration Act. It may be pointed OUt that under the Government of India Act, 1935 \"adulteration of foodstuffs and other goods\" was a provincial subject whereas lllllder the Constitution it is included in the Concurrent List.\n\nSection 2(i) of this Act which defines the word \"adulterated\" consists of several sub-clauses. One of these sub-claW:es is ( 1) accbrdin, g to which \"an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed sta, ndard or its constituents are present in quantities which are in excess of the prescribed limits of variability\". Clause ( v) of s. 2 defines \"food\" to mean \"any article used as food or dripik for human consumption other than drugs· and water and .includes : (a) any article which ordinarily enters into or is used in the composition or preparation of human food, and (b) any\n\nflavouring matter or condiments. According to cl. (ix) an article of food shall be deemed to be \"misbr31Ilded\" if it falls within any one of the sub-clauses (a) to (k). It is not necessary to reproduce all these sub-clauses. \"Package\" has been defined in cl. (x) to mean \"a box, bottle, casket, tin, barrel, case, receptacle, sack, bag. wrapper or other thing in which an article of food is placed or\n\npacked\". We have referred to the definitions of \"rnisbrants and s. 9 for the appointment of Food Inspectors. The powers of Food Inspectors are contained ins. 10.\n\nHe possesses very wide powers for the purpose of effectively achiev-\n\n4::::\n\nMUNICIPAL CORP. DELHI v. SHIV SHANKA!l (Dua, I.) 613\n\ning the statutory object of preventing 1the manufacture, sale and distribution etc., of adulterated articles of food. The procedure for taking samples of food by the Food Inspector for analysis is praicribed in s. 11 and the repon of llhe Public Analyst is made\n\nadmissible by s. 13. The proviso to sub-s. (5) of s. 15 makes the certificate signed by the Director of Central Food Laboratory final and conclusive proof of the facts stated therein.\n\nThe Central Food Laboratory is established by the Central Government under s. 4 for the purpose of carrying on functions entrusted to it by the Adulteration Act or by the Rules made thereunder.\n\nSection 16 provides for pealties for offences unde10 the Adultera Ilion Act and cl. (a) of sub-s. (1) makes it an offence for any person, whether by himself or by any person on his behalf o im • pott into India or manufacture for sale or to store, sell or distribute any article of food in contravention of any of the provisions of the Act or of any rules made thereunder.\n\nIn the prose.:ution for an offence pertaining to the sale of an adulterated or misbranded article of food s. 19 makes impermissible the defence that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the . purchaser having purchased an article for analysis was not preiudiced by the sale. Section 20 prohibits cognizance and trial of offences under the Act except when prosecution is instituted by or with the written consent of the State Government or a local authority or a person authorized in this behalf by such Government or authority.\n\nUnder the proviso to this section a purchaser referred to ins. 12, is, however, empowered to institute a prosecution if he produces in court a copy of the report of the Public Analyst along with the complaint.\n\nSection 21 overrides s. 32, Cr.P.C. in the matter of sentence to be passed under this Act by the Presidency Magistrates or Magistrates of I Class. trying offences under the Act.\n\nSection 23 confers on the Central Government wide powers to make rules under the Act after consulting the Central Comniittee for Food Standards appointed by the Central Government under s. 3.\n\nSection 24 empowers the State Governmeait, (after consultation with the Central Committee for Food Standards and with previous publication) to make rules for\n\ngMng effect to the provisions of the Act in matters not covered by s. 23. Various States have actually framed rnles under this section.\n\nWe may now briefly refer to the Prevention of Food Adulteration Rules, 1955 (hereafter called the Adulteration Rules). These rules were made by the Central Government under s. 4(2) and s. 23{1) of the Adulteration Act and were published in the Official Gazette as per notification dated September 12, 1955. The rules other than those contained in Part Ill-Appendix B-ltem A.12 Margarine, Part VI and Part VII came into force on the date. of\n\ntheir publication .iilll the Official Gazette : the rules contained in Part III, AppendixB, Item A.12 Margarine came into force on June 1, 1956 and the rules contained in Part VI and Part VII came into force on December 1, 1956: vide r. 1(3). Under s. 23(2) (prior to its amendment in 1964) all rules made under sub-s. ( 1) had to be laid as soon as possible before both Houses of Parliament.\n\nBy Act 49 of 1964 sub-s. (2) was amended so as to provide for every rule made under sub-s. ( 1) to be laid before each House of Parliament while in session, for a total period' of 30 days in order to afford an opp9rtunity to the two Houses to study and to modify or annul it for future if both Houses so agree.\n\nWe have referred to this amendment as some of the rules w.ere amended thereafter, The effect of the subsequeint amendment of some of the rules will be noticed later.\n\nThe Adulteration Rules clearly brlng out the anxiety of their authors to see that wholesome food is sold to the citizens. The duties and powers of Food Inspectors as contained, inter alia, in rr. 9 and 13, broadly illustrate this anxiety.\n\nThese rules also i!lldicate that the framers of the Rules were not unaware of the different provisions of the Fruit Order. By way of illustration reference may be made tor. 50 which prescribes conditions of licence to manufacture, sell, s1ock, distribute or exhibit certain articles of food.\n\nIn cl. (1) of sub-r.\n\n(1) of this rule the fruit-products covered under the Fruit Order .and some other articles have been excluded from the operation of this rule.\n\nThis clause was amended twice, once in November, 1956 and again in April, 1960. Had the Adulteration Act been intended to be impliedly repealed by the Fruit Order (which would also mean implied repeal of the rules) .it would have been unnecessary to expressly exclude such fruit-products from the. operaticm of this rule.\n\nRule 5 ano Appendix B of these Rules came into force on December 1, 1956 after the promulgation of the Fruit Order.\n\nAccording to r. 5 the standard of quality of the various articles of food specified in Appendix B are as specified therein.\n\nIn Appendix B item at sl. no. A.16 deals with \"fruit products\".\n\nBut the articles of fruit products dealt with in A.16.01 to A.16.12 clearly show that vinegar is i!lOt included in the expression \"fruit products\".\n\nVinegar is dealt with in A.20 and syn•hetic vinegar in A.20.01.\n\nBoth these items were added in April, 1960.\n\nWe may now turn to the Essential Commodities Act, 10 of 1955 and the Fruit Order.\n\nThe Essential Commodities Act was enacted in 1955 with the object of providi, ng, in the interests of the general public, for the control of the pr<1duction, supply and distribution of, and rade and commerce in, certain commodities. It came into force on April 1, 1956 repealing the Essential Commodities Ordinance No. 1 of 1955 which had beein promulgated with the same object and en.lorced on January 26, 1955, the date of the expiry of the Essential Supplies (Temporary) Powers Act 26 of 1946.\n\nThe last named Act had repJaced the Essential Supplies (Temporary Powers) Ordinance No. XVIII of1946 which had come into force on October 1, 1946. That Ordinance was promulgated with the object of CO\\lltinuillg, during a limited period, powers lo control the production, supply and distribution of, and trade and commerce in, foodstuffs and certain other commodities.\n\nTo empower the Indian Legislature to enact law on this subject matter the British Parliament had passed India (Central Goveroment and LegislatiQn) Act, 1946 (9 .and 10 Geo, VI, c. 39). The Indian Legislature not being c in session the Ordinance was promulgated to meet the emergency and this was replaced by Act 26 of 1946. Reference has been made by us to this past history for the purpose of indicating the different objects and purposes intended to be achieved by the two legislative measures.\n\nSection 2 of the Essential Commodities Act which is the definition section defines in cl. (a) \"essential commodity to mean any of the classes Of commodities stated in Sub-els.\n\n(i) to (xi). Sub-clause (v) refers to \"foodstuffs, including edible oil-seeds and oils\" and cl. (xi) confers power on the Central Gover, nment to declare by a notified order any other class of commodity to be an essential commodity for the purposes of the Act, being\n\na commodity with respect to which Parliament has power to make\n\nlaws by virtue of Entry 33 in List III in the 7th Schedule to the Constitution.\n\nSection 3 of the Act confers on the Central Government power to cQlltrol production, supply, distribution etc., of essential commodities by providing, by an order, for regulating or prohibiting the production, supply and distribution of those commodities and trade and commerce therein.\n\nEvery order made under this section has to be. laid before both Houses ot Parliament as soon as may be after it is made.\n\nBy virtue of s. 6 Orders niade under s. 3 have effect notwithstanding anythi, ng inconsistent therewith contained in any enactment other than the Essential Commodities Act.\n\nSection 7 provides for penalties for cqntravention of orders made under s. '3.\n\nUnder s. 11 courts are prohibited from taking cognizance of offences pu.nishable under this Act except on G a report in writing of the facts constituting such 3111 offence made by a person who is a public servant as defined in s .. 21, I.P.C.\n\nSection 12 of this Act vests ill, the Presidency Magistrates and Magistrates of I Class power to pass sentences of fines exceeding Rs. 1, 000 I - on convicted persons notwithstanding the restriction in this respect imposed on their pdwers by s. 32, Cr.P.C.\n\nAs alrea be point~ out that this section was added by Act 49 of 1964 which came mto force on MarC:1 1, 1965 long after 1960 when the present cases were started. Shri Daphtary developed his argument by adding .that if !he respondents have manufactured for sale and have sold vmegar m accordance with the terms N the licence gran!emtn and the amded clause is indicative of the rule making authority being conscious of both the statutory provisions being operative in theirrespective fields at the same time, thereby negativing implied repeal. A.20 dealing with \"vinegar\" was also added in Appendix B of the Adulteration Rules in 1956 and A. 20.01 dealing with \"synthetic vinegar\" was added in April, 1960. A passing reference g may also. be .made to some of the relevant amendments in.J; ome rules made subsequent to the enforcement of the amended .section 23(2). In r. 55 in items at sl. nos. 19 and 20, dealing with pickles 'lllld chutnies made from fruit or vegetables and with tomato and other sauces, respectively, the preservatives mentioned in cl. 2 were amended. Similarly in r. 57(2) the table cOllltaining articles like F fruit and vegetable juices including tomato-juice was amended.\n\nBoth the above amendments .were made in December, 1965. It may here be pointed out that pickles,. chutnies, tomato products, kutchups, sauces and also other unspecified items relating to fruits or vegetables are included m the definition of \"fruit product\" under the Fruit Products Order. These amendments, though made after\n\n1960, do seem to further negative the intendment of implied repeal G as argu~ on behalf of the respondent. Ia view of the foregoing discussion it seems to us that the two statUtory provisions can harmQniously operate with.out causing confusion or resulting in absurd consequences and the scheme of the Adulteration Act and Rules can without difficulty fit into the scheme of the Fruit Order\n\nunder the Essential Commodities Act. The challenge on the R ground of implied repeal must, therefore, be rejected.\n\nIncidentally we may note that the view taken by the learned single Judge in this case was later overruled by a Full Bench of the\n\n1~18 Sup. CJ.j11\n\n.:.,,\"' ..\n\nDelhi High Court in Municipal Corporation v. Harnarain (Crl. A.\n\nA No. 163 of 1967 decided in May, 1969).\n\nShri Daphtary, as a last resort, tried to press into service Art. 14 in his challenge to the prosecution of the respondent. Accord ing to him the prosecuting authorities have an unguided licence to prosecute his clients under one or the other statute and since the penalty under the Adulteration. Act is more severe than that der the Fruit Order the principle of equality before the law is violated.\n\nAs this point was not taken in any of the courts below we did not permit him to raise it in this Court. It would, however, , be open to the respondent, if so advised, to raise this pot in accordance with law in the court below, because the cases have not yet been finally disposed of. The competence of the prosecution having been challenged at an intermediate stage, the cases will have to go back to the trial court.\n\nAs these cases have been pending since 1962 the trial coUrt should dispose them of with due dispatch and without any further avoidable delay.\n\nThe appeals are accordingly allowed and the cases remitted to the trial court fqr further proceedings according to law in ihe light of the observations made above.\n\nR.K.P.S.\n\nAppeals allowed.", "total_entities": 144, "entities": [{"text": "MUNICIPAL CORPORATION OF DELfil", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL CORPORATION OF DELHI", "offset_not_found": false}}, {"text": "February 1, 1971", "label": "DATE", "start_char": 48, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "MUNICIPAL CORPORATION OF DELfil\n\nv. smVSHANKAR\n\nFebruary 1, 1971\n\n[S. M. SIKRI, C.J., V. BHARGAVA AND I. D. DUA, JJ.]"}}, {"text": "S. M. SIKRI, C.J.", "label": "JUDGE", "start_char": 67, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "V. BHARGAVA", "label": "JUDGE", "start_char": 86, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "I. D. DUA, JJ.", "label": "JUDGE", "start_char": 102, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Repeal-Implied-Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 119, "end_char": 175, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 477, "end_char": 481, "source": "regex", "metadata": {"linked_statute_text": "Vinegar-Prosecution under Adulteration Act-Competence-If Fruit Products Order impliedly repeals Adulteration Act", "statute": "Vinegar-Prosecution under Adulteration Act-Competence-If Fruit Products Order impliedly repeals Adulteration Act"}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 489, "end_char": 514, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 541, "end_char": 582, "source": "regex", "metadata": {}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 781, "end_char": 796, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "clause 15", "label": "PROVISION", "start_char": 900, "end_char": 909, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "s. 3(6)", "label": "PROVISION", "start_char": 1481, "end_char": 1488, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 1496, "end_char": 1521, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "On the question whether the Fruit Order impliedly repeals the Adulteration Act", "label": "STATUTE", "start_char": 1619, "end_char": 1697, "source": "regex", "metadata": {}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 2734, "end_char": 2759, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 26", "label": "PROVISION", "start_char": 3597, "end_char": 3607, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 3615, "end_char": 3634, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "1969 3 S.C.R. 65", "label": "CASE_CITATION", "start_char": 3816, "end_char": 3832, "source": "regex", "metadata": {}}, {"text": "Bishan Narain", "label": "PETITIONER", "start_char": 4207, "end_char": 4220, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. P. Maheshwari and N. K. Jain, for the :appellant (in all the appeals) .", "canonical_name": "Bishan Narain"}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 4222, "end_char": 4238, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. P. Maheshwari and N. K. Jain, for the :appellant (in all the appeals) ."}}, {"text": "N. K. Jain", "label": "OTHER_PERSON", "start_char": 4243, "end_char": 4253, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. P. Maheshwari and N. K. Jain, for the :appellant (in all the appeals) ."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 4298, "end_char": 4312, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, N. N. Goswami, K. L. Mehta and S. K. Mehta, for the respondent (in .Cr."}}, {"text": "N. N. Goswami", "label": "LAWYER", "start_char": 4314, "end_char": 4327, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, N. N. Goswami, K. L. Mehta and S. K. Mehta, for the respondent (in .Cr.", "canonical_name": "N. N. Goswami"}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 4329, "end_char": 4340, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, N. N. Goswami, K. L. Mehta and S. K. Mehta, for the respondent (in .Cr.", "canonical_name": "K. L. Mehta"}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 4345, "end_char": 4356, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, N. N. Goswami, K. L. Mehta and S. K. Mehta, for the respondent (in .Cr.", "canonical_name": "S. K. Mehta"}}, {"text": "K. L. Gossain", "label": "LAWYER", "start_char": 4405, "end_char": 4418, "source": "ner", "metadata": {"in_sentence": "K. L. Gossain, N. N. Goswami, K. L. Mehta and S. K. Mehta, :for the respondent (in Cr."}}, {"text": "N. N. Goswami", "label": "LAWYER", "start_char": 4420, "end_char": 4433, "source": "ner", "metadata": {"in_sentence": "K. L. Gossain, N. N. Goswami, K. L. Mehta and S. K. Mehta, :for the respondent (in Cr.", "canonical_name": "N. N. Goswami"}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 4435, "end_char": 4446, "source": "ner", "metadata": {"in_sentence": "K. L. Gossain, N. N. Goswami, K. L. Mehta and S. K. Mehta, :for the respondent (in Cr.", "canonical_name": "K. L. Mehta"}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 4451, "end_char": 4462, "source": "ner", "metadata": {"in_sentence": "K. L. Gossain, N. N. Goswami, K. L. Mehta and S. K. Mehta, :for the respondent (in Cr.", "canonical_name": "S. K. Mehta"}}, {"text": "Dua", "label": "JUDGE", "start_char": 4599, "end_char": 4602, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Couvt was delivered by Dua, J.-These eight appeals with certificate (Crl."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 4805, "end_char": 4822, "source": "ner", "metadata": {"in_sentence": "Indeed, all the appeals in the Punjab High Court were also disposed of by a learned single Judge of that Court sitting on cir- cuit at Delhi by a common judgment and another learned single Judge of the same Court similarly certified the cases to be fit for appeal to this Court by a common order."}}, {"text": "Central Government", "label": "ORG", "start_char": 5466, "end_char": 5484, "source": "ner", "metadata": {"in_sentence": "The only question canvassed at the bar requiring determination by us is whether the respondent is liable to be prosecuted under the Prevention of Food Adulteration Act, 37 of 1954 (hereafter called the Adulteration Act) for selling adulterated vinegar when the vinegar is being sold under a licence granted under the Fruit Products Ord;; r, 1955 (hereafter called the Frui~ -Order) made by the Central Government under s. 3 of the Essen-\n\nH . '"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5491, "end_char": 5495, "source": "regex", "metadata": {"statute": null}}, {"text": "October 29, 1962", "label": "DATE", "start_char": 5685, "end_char": 5701, "source": "ner", "metadata": {"in_sentence": "A. 996 of 1961 decided on October 29, 1962) held that they cannot be prosecuted."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 6064, "end_char": 6069, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 6077, "end_char": 6096, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Raj Kumar", "label": "OTHER_PERSON", "start_char": 6395, "end_char": 6404, "source": "ner", "metadata": {"in_sentence": "Prayer for reference to a larger Bench for reconsideation of Raj Kumar's case (supra) did not find favour with the learned single Judge.", "canonical_name": "Raj Kumar"}}, {"text": "Bishan Narain", "label": "PETITIONER", "start_char": 7453, "end_char": 7466, "source": "ner", "metadata": {"in_sentence": "Shri Bishan Narain sought support for his submission from.", "canonical_name": "Bishan Narain"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 7623, "end_char": 7651, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 409", "label": "PROVISION", "start_char": 7675, "end_char": 7681, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7682, "end_char": 7687, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Khosla", "label": "JUDGE", "start_char": 7728, "end_char": 7734, "source": "ner", "metadata": {"in_sentence": "S(l)(c) of the Prevention of Corruption Act was held not to repeal s. 409 I.P.C.\n\nThe dcision of the Punjab High Court (Khosla and Falshaw JJ.)"}}, {"text": "Falshaw", "label": "JUDGE", "start_char": 7739, "end_char": 7746, "source": "ner", "metadata": {"in_sentence": "S(l)(c) of the Prevention of Corruption Act was held not to repeal s. 409 I.P.C.\n\nThe dcision of the Punjab High Court (Khosla and Falshaw JJ.)"}}, {"text": "s. 52", "label": "PROVISION", "start_char": 7843, "end_char": 7848, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Income tax Act, 1922", "label": "STATUTE", "start_char": 7856, "end_char": 7876, "source": "regex", "metadata": {}}, {"text": "s. 177", "label": "PROVISION", "start_char": 7900, "end_char": 7906, "source": "regex", "metadata": {"linked_statute_text": "the Income tax Act, 1922", "statute": "the Income tax Act, 1922"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7908, "end_char": 7913, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 8064, "end_char": 8077, "source": "ner", "metadata": {"in_sentence": "Shri Bishan Narain for the appellant, by way of illustra-\n\n(1) [1957] S.C.R. 423\n\n(2) (1969] 3 S.C.R. 65.", "canonical_name": "Bishan Narain"}}, {"text": "(1969] 3 S.C.R. 65", "label": "CASE_CITATION", "start_char": 8145, "end_char": 8163, "source": "regex", "metadata": {}}, {"text": "ss. 7", "label": "PROVISION", "start_char": 8707, "end_char": 8712, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Shiv Sh_anke.r", "label": "WITNESS", "start_char": 8865, "end_char": 8879, "source": "ner", "metadata": {"in_sentence": "After the prosecu.tion evidence was recorded, the 'respondent Shiv Sh_anke.r applied' td the trial magistrate in October, 1963 praying that the prosecuti<;>n be droppe\\I. In this application."}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 9483, "end_char": 9498, "source": "regex", "metadata": {"statute": null}}, {"text": "Prosecution under the Adulteration Act", "label": "STATUTE", "start_char": 9647, "end_char": 9685, "source": "regex", "metadata": {}}, {"text": "Order or of the Adulteration Act", "label": "STATUTE", "start_char": 10022, "end_char": 10054, "source": "regex", "metadata": {}}, {"text": "s. 26", "label": "PROVISION", "start_char": 10256, "end_char": 10261, "source": "regex", "metadata": {"linked_statute_text": "Order or of the Adulteration Act", "statute": "Order or of the Adulteration Act"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 10269, "end_char": 10288, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "J. S.\n\nBedl", "label": "JUDGE", "start_char": 10499, "end_char": 10510, "source": "ner", "metadata": {"in_sentence": "J. S.\n\nBedl, J., relying on Raj Kumar's case (supra) quashed the proceedings."}}, {"text": "S. K. Kapur", "label": "JUDGE", "start_char": 10578, "end_char": 10589, "source": "ner", "metadata": {"in_sentence": "S. K. Kapur J .,"}}, {"text": "Kapur", "label": "JUDGE", "start_char": 10978, "end_char": 10983, "source": "ner", "metadata": {"in_sentence": "From the passage quoted by Kapur J., from the unreported Bench decision in Raj Kum:Us case (supra) upholding the implied repeal of the Adulteration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them."}}, {"text": "Raj Kum", "label": "OTHER_PERSON", "start_char": 11026, "end_char": 11033, "source": "ner", "metadata": {"in_sentence": "From the passage quoted by Kapur J., from the unreported Bench decision in Raj Kum:Us case (supra) upholding the implied repeal of the Adulteration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them.", "canonical_name": "Raj Kumar"}}, {"text": "Turning first to the Adulteration Act", "label": "STATUTE", "start_char": 14826, "end_char": 14863, "source": "regex", "metadata": {}}, {"text": "June l, 1955", "label": "DATE", "start_char": 14986, "end_char": 14998, "source": "ner", "metadata": {"in_sentence": "Turning first to the Adulteration Act, it was enacted by the Parliameuit to make provision for the prevention of adulteration of food and it came into force on June l, 1955."}}, {"text": "s. 25", "label": "PROVISION", "start_char": 15182, "end_char": 15187, "source": "regex", "metadata": {"linked_statute_text": "Turning first to the Adulteration Act", "statute": "Turning first to the Adulteration Act"}}, {"text": "may be pointed OUt that under the Government of India Act, 1935", "label": "STATUTE", "start_char": 15216, "end_char": 15279, "source": "regex", "metadata": {}}, {"text": "Section 2(i)", "label": "PROVISION", "start_char": 15424, "end_char": 15436, "source": "regex", "metadata": {"linked_statute_text": "It may be pointed OUt that under the Government of India Act, 1935", "statute": "It may be pointed OUt that under the Government of India Act, 1935"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 15828, "end_char": 15832, "source": "regex", "metadata": {"linked_statute_text": "It may be pointed OUt that under the Government of India Act, 1935", "statute": "It may be pointed OUt that under the Government of India Act, 1935"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 17171, "end_char": 17175, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 17612, "end_char": 17617, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 17678, "end_char": 17683, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 17714, "end_char": 17719, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Food Laboratory", "label": "ORG", "start_char": 17853, "end_char": 17876, "source": "ner", "metadata": {"in_sentence": "The Central Food Laboratory is established by the Central Government under s. 4 for the purpose of carrying on functions entrusted to it by the Adulteration Act or by the Rules made thereunder."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 17924, "end_char": 17928, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 18044, "end_char": 18054, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 18249, "end_char": 18254, "source": "ner", "metadata": {"in_sentence": "a) of sub-s. (1) makes it an offence for any person, whether by himself or by any person on his behalf o im • pott into India or manufacture for sale or to store, sell or distribute any article of food in contravention of any of the provisions of the Act or of any rules made thereunder."}}, {"text": "s. 19", "label": "PROVISION", "start_char": 18524, "end_char": 18529, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20", "label": "PROVISION", "start_char": 18748, "end_char": 18758, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 21", "label": "PROVISION", "start_char": 19213, "end_char": 19223, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 19234, "end_char": 19239, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 19241, "end_char": 19247, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 23", "label": "PROVISION", "start_char": 19392, "end_char": 19402, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 19578, "end_char": 19582, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Section 24", "label": "PROVISION", "start_char": 19585, "end_char": 19595, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 19811, "end_char": 19816, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "may now briefly refer to the Prevention of Food Adulteration Rules, 1955", "label": "STATUTE", "start_char": 19884, "end_char": 19956, "source": "regex", "metadata": {}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 20054, "end_char": 20061, "source": "regex", "metadata": {"linked_statute_text": "We may now briefly refer to the Prevention of Food Adulteration Rules, 1955", "statute": "We may now briefly refer to the Prevention of Food Adulteration Rules, 1955"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 20066, "end_char": 20071, "source": "regex", "metadata": {"linked_statute_text": "We may now briefly refer to the Prevention of Food Adulteration Rules, 1955", "statute": "We may now briefly refer to the Prevention of Food Adulteration Rules, 1955"}}, {"text": "June 1, 1956", "label": "DATE", "start_char": 20454, "end_char": 20466, "source": "ner", "metadata": {"in_sentence": "of\n\ntheir publication .iilll the Official Gazette : the rules contained in Part III, AppendixB, Item A.12 Margarine came into force on June 1, 1956 and the rules contained in Part VI and Part VII came into force on December 1, 1956: vide r. 1(3)."}}, {"text": "December 1, 1956", "label": "DATE", "start_char": 20534, "end_char": 20550, "source": "ner", "metadata": {"in_sentence": "of\n\ntheir publication .iilll the Official Gazette : the rules contained in Part III, AppendixB, Item A.12 Margarine came into force on June 1, 1956 and the rules contained in Part VI and Part VII came into force on December 1, 1956: vide r. 1(3)."}}, {"text": "s. 23(2)", "label": "PROVISION", "start_char": 20572, "end_char": 20580, "source": "regex", "metadata": {"linked_statute_text": "We may now briefly refer to the Prevention of Food Adulteration Rules, 1955", "statute": "We may now briefly refer to the Prevention of Food Adulteration Rules, 1955"}}, {"text": "Parliament", "label": "ORG", "start_char": 20845, "end_char": 20855, "source": "ner", "metadata": {"in_sentence": "By Act 49 of 1964 sub-s. (2) was amended so as to provide for every rule made under sub-s. ( 1) to be laid before each House of Parliament while in session, for a total period' of 30 days in order to afford an opp9rtunity to the two Houses to study and to modify or annul it for future if both Houses so agree."}}, {"text": "s1", "label": "PROVISION", "start_char": 21673, "end_char": 21675, "source": "regex", "metadata": {"statute": null}}, {"text": "Had the Adulteration Act", "label": "STATUTE", "start_char": 21975, "end_char": 21999, "source": "regex", "metadata": {}}, {"text": "Appendix B of these Rules", "label": "STATUTE", "start_char": 22229, "end_char": 22254, "source": "regex", "metadata": {}}, {"text": "may now turn to the Essential Commodities Act", "label": "STATUTE", "start_char": 22787, "end_char": 22832, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 22871, "end_char": 22896, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "April 1, 1956", "label": "DATE", "start_char": 23122, "end_char": 23135, "source": "ner", "metadata": {"in_sentence": "It came into force on April 1, 1956 repealing the Essential Commodities Ordinance No."}}, {"text": "October 1, 1946", "label": "DATE", "start_char": 23495, "end_char": 23510, "source": "ner", "metadata": {"in_sentence": "XVIII of1946 which had come into force on October 1, 1946."}}, {"text": "British Parliament", "label": "ORG", "start_char": 23808, "end_char": 23826, "source": "ner", "metadata": {"in_sentence": "To empower the Indian Legislature to enact law on this subject matter the British Parliament had passed India (Central Goveroment and LegislatiQn) Act, 1946 (9 .and 10 Geo, VI, c. 39)."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 24232, "end_char": 24241, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 24249, "end_char": 24274, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 24822, "end_char": 24831, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 25245, "end_char": 25249, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 25269, "end_char": 25273, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 25378, "end_char": 25403, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 7", "label": "PROVISION", "start_char": 25406, "end_char": 25415, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 25492, "end_char": 25497, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 25722, "end_char": 25727, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 12", "label": "PROVISION", "start_char": 25730, "end_char": 25740, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 25972, "end_char": 25977, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 25979, "end_char": 25985, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 26332, "end_char": 26357, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 26555, "end_char": 26559, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 26803, "end_char": 26807, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 26816, "end_char": 26841, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Government of India", "label": "ORG", "start_char": 27169, "end_char": 27188, "source": "ner", "metadata": {"in_sentence": "g) means the Agricultural Marketin11: AdViser to the Government of India and it includes any other Officer empowered in thi.s behalf by him with the approval of the Central Government. \""}}, {"text": "Clause 4", "label": "PROVISION", "start_char": 27559, "end_char": 27567, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 27744, "end_char": 27752, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 4", "label": "PROVISION", "start_char": 27824, "end_char": 27829, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 27832, "end_char": 27840, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 28019, "end_char": 28034, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 8", "label": "PROVISION", "start_char": 28052, "end_char": 28057, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 10", "label": "PROVISION", "start_char": 28216, "end_char": 28225, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 12", "label": "PROVISION", "start_char": 28618, "end_char": 28627, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 28830, "end_char": 28836, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodi~", "label": "PETITIONER", "start_char": 29214, "end_char": 29232, "source": "ner", "metadata": {"in_sentence": "The Essential Commodi~\n\nA ties Act on the other hand has for its object the control of the production, supply and distribution of, and trade and commerce in."}}, {"text": "Daphtary", "label": "OTHER_PERSON", "start_char": 30291, "end_char": 30299, "source": "ner", "metadata": {"in_sentence": "At the bar Shri Daphtary in his usual persuasive manner argued that there is an irreconcilable conflict between the two statutory provisions and the Fruit Order being, not only of a date later than the Adulteration Act but also ha\\ing, by virtue of s. 3 ( 6) of the Essential Commodities Act, overriding effect over all other laws, it must prevail over the Adulteration Act and Rules."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 30524, "end_char": 30528, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 30541, "end_char": 30566, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 20", "label": "PROVISION", "start_char": 31021, "end_char": 31026, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20", "label": "PROVISION", "start_char": 31381, "end_char": 31386, "source": "regex", "metadata": {"statute": null}}, {"text": "MarC:1 1, 1965", "label": "DATE", "start_char": 31842, "end_char": 31856, "source": "ner", "metadata": {"in_sentence": "Incidentally it may als<;> be point~ out that this section was added by Act 49 of 1964 which came mto force on MarC:1 1, 1965 long after 1960 when the present cases were started."}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 33517, "end_char": 33542, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Provision of the Adulteration Act or the Rules", "label": "STATUTE", "start_char": 33864, "end_char": 33910, "source": "regex", "metadata": {}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 34763, "end_char": 34788, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "JlS of the Adultera tion Act and the Rules", "label": "STATUTE", "start_char": 34843, "end_char": 34885, "source": "regex", "metadata": {}}, {"text": "s. 26", "label": "PROVISION", "start_char": 35069, "end_char": 35074, "source": "regex", "metadata": {"linked_statute_text": "JlS of the Adultera tion Act and the Rules", "statute": "JlS of the Adultera tion Act and the Rules"}}, {"text": "SHIV SHANKAR", "label": "RESPONDENT", "start_char": 35433, "end_char": 35445, "source": "metadata", "metadata": {"canonical_name": "SHIV SHANKAR", "offset_not_found": true}}, {"text": "Both the Adulteration Act and the Essential Commodities Act", "label": "STATUTE", "start_char": 35912, "end_char": 35971, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Appendix B of the Adulteration Rules", "label": "STATUTE", "start_char": 36870, "end_char": 36906, "source": "regex", "metadata": {}}, {"text": "section 23(2)", "label": "PROVISION", "start_char": 37130, "end_char": 37143, "source": "regex", "metadata": {"linked_statute_text": "Appendix B of the Adulteration Rules", "statute": "Appendix B of the Adulteration Rules"}}, {"text": "cl. 2", "label": "PROVISION", "start_char": 37332, "end_char": 37337, "source": "regex", "metadata": {"linked_statute_text": "Appendix B of the Adulteration Rules", "statute": "Appendix B of the Adulteration Rules"}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 38205, "end_char": 38230, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 38471, "end_char": 38487, "source": "ner", "metadata": {"in_sentence": "Delhi High Court in Municipal Corporation v. Harnarain (Crl."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 38639, "end_char": 38646, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_621_628_EN", "year": 1971, "text": ", I,'\n\nG. MARULASIDDAIAH v.\n\nT. G. SIDDAPPARADHYA & ORS.\n\nFebruary 1, 1971\n\n[G. K. MITTER AND A. N. RAY, JJ.]\n\nM, vsoro University Act, 1956-Rule S of Supplementary Rules-Board Appointments-Reasons to be recorded by Board-Failure to record rea- IOns for disrogarding grCar at .an interview for the purpose fixed on September 21, 1969. On affidavits being filed this Court after hearing the parties passed an order on November 14, 1969 modifying the earlier order of stay to the effect that the order of the High Court was to remain suspended till the disposal of the special leave petition and as soon as the Chancellor had decided the case, the parties were to be at liberty to mention the matter to this Court and in the meanwhile the' appellant was to continue as Professor. On a clarification of the Court's order being sought for, an order was passed on August 26.\n\n1970 to the effect that the Chancellor was free to deal with the matter notWithstanding that the application for special leave was pending in this Court. It appears that the Board of Appointments re-constituted after the decision of the High Court had advised the appointment of the first respondent as Professor and the Chancellor in the circumstances of the case felt that he should not come to any decision during the pendency of the matter before this Court.\n\nThe Chancellor's order was made on November 11, 1970. On December 11, 1970 this Court granted special leave to the appel-\n\n!ant and directed the stay to CQntinue till the disposal .of the appeal.\n\nAlthough we have set out what transpired after the presentation of the special leave petition to this Court in September 1969 to give\n\na complete picture of the events concerning the appointment of a Professor under the University Grants Scheme, we do not propose B to take any notice of what the Second Board of Appointments did.\n\nIn our view, if the action of the Board of Appointments taken on June 9, 1967 and approved of by the Chancellor on June 26, l 967 was valid, the Board would have no jurisdiction to consider the matter for a second time.\n\nThe position in law ai>pears to be as follows. The Mysore University Act, 1956 came mto force on October 3, 1956. s. 13 of the Act sets out the authorities .of the University which include inter a/ia the Senate, the Syndicate, the Academic Council and the\n\nBoard of Appointments.\n\nDifferent sections following the above prescribe the powers and functions of the Senate, the Syndicate and their authorities. Section 26 concerns the Board of Appointments. Sub-s. ( 1) of this section provides :\n\n\"Appointments to the staff of the University shall be made in accordance with the rules made by the Chan. cdlor in consultation with the Syndicate.\"\n\nSub-s.(2) shows how the Board of Appointments is to be constituted for the purpose of making appointments of Professors, Readers and Lecturers. The Board is to consist of ( 1) the Vice- Chancellor who was to be the ex-officio Chairman, (2) the Head of the University Department in the subject concerned, except where the appointment to be made was the post of the Head of the concerned Department, (3) one member who was to be an expert in the subject concerned selected from outside the University by the Syndicate and ( 4) another person who was to be an expert in the subject concerned selected from outside. the Univer- Car at .an interview for the purpose fixed on September 21, 1969."}}, {"text": "November 14, 1969", "label": "DATE", "start_char": 7613, "end_char": 7630, "source": "ner", "metadata": {"in_sentence": "On affidavits being filed this Court after hearing the parties passed an order on November 14, 1969 modifying the earlier order of stay to the effect that the order of the High Court was to remain suspended till the disposal of the special leave petition and as soon as the Chancellor had decided the case, the parties were to be at liberty to mention the matter to this Court and in the meanwhile the' appellant was to continue as Professor."}}, {"text": "August 26.\n\n1970", "label": "DATE", "start_char": 8055, "end_char": 8071, "source": "ner", "metadata": {"in_sentence": "On a clarification of the Court's order being sought for, an order was passed on August 26."}}, {"text": "November 11, 1970", "label": "DATE", "start_char": 8566, "end_char": 8583, "source": "ner", "metadata": {"in_sentence": "The Chancellor's order was made on November 11, 1970."}}, {"text": "December 11, 1970", "label": "DATE", "start_char": 8588, "end_char": 8605, "source": "ner", "metadata": {"in_sentence": "On December 11, 1970 this Court granted special leave to the appel-\n\n!"}}, {"text": "June 9, 1967", "label": "DATE", "start_char": 9125, "end_char": 9137, "source": "ner", "metadata": {"in_sentence": "In our view, if the action of the Board of Appointments taken on June 9, 1967 and approved of by the Chancellor on June 26, l 967 was valid, the Board would have no jurisdiction to consider the matter for a second time."}}, {"text": "June 26, l 967", "label": "DATE", "start_char": 9175, "end_char": 9189, "source": "ner", "metadata": {"in_sentence": "In our view, if the action of the Board of Appointments taken on June 9, 1967 and approved of by the Chancellor on June 26, l 967 was valid, the Board would have no jurisdiction to consider the matter for a second time."}}, {"text": "Mysore University Act, 1956", "label": "STATUTE", "start_char": 9332, "end_char": 9359, "source": "regex", "metadata": {}}, {"text": "October 3, 1956", "label": "DATE", "start_char": 9378, "end_char": 9393, "source": "ner", "metadata": {"in_sentence": "The Mysore University Act, 1956 came mto force on October 3, 1956."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 9395, "end_char": 9400, "source": "regex", "metadata": {"linked_statute_text": "The Mysore University Act, 1956", "statute": "The Mysore University Act, 1956"}}, {"text": "Senate", "label": "ORG", "start_char": 9643, "end_char": 9649, "source": "ner", "metadata": {"in_sentence": "Different sections following the above prescribe the powers and functions of the Senate, the Syndicate and their authorities."}}, {"text": "Section 26", "label": "PROVISION", "start_char": 9688, "end_char": 9698, "source": "regex", "metadata": {"linked_statute_text": "The Mysore University Act, 1956", "statute": "The Mysore University Act, 1956"}}, {"text": "OCtober 24, 1964", "label": "DATE", "start_char": 10941, "end_char": 10957, "source": "ner", "metadata": {"in_sentence": "The Mysore University Staff (Appointment) Rules came into froce on OCtober 24, 1964."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 11086, "end_char": 11091, "source": "regex", "metadata": {"statute": null}}, {"text": "8th April 1967", "label": "DATE", "start_char": 11106, "end_char": 11120, "source": "ner", "metadata": {"in_sentence": "Some supplementary Rules of recruitment governing the appointment of University teachers were -approved by the Governor under s. 26 of the Act on 8th April 1967 and these were published on May 25, 1967."}}, {"text": "May 25, 1967", "label": "DATE", "start_char": 11149, "end_char": 11161, "source": "ner", "metadata": {"in_sentence": "Some supplementary Rules of recruitment governing the appointment of University teachers were -approved by the Governor under s. 26 of the Act on 8th April 1967 and these were published on May 25, 1967."}}, {"text": "G. Narulasiddrah", "label": "PETITIONER", "start_char": 12352, "end_char": 12368, "source": "ner", "metadata": {"in_sentence": "The Board in consultation with the Dean of the Faculty of Arts, unanimously resolved that Dr. G. Narulasiddrah be appointed Professor of Sanskrit on a starting salary of Rs.", "canonical_name": "G. MARULASIDDAIAH"}}, {"text": "SUPREME COURT REPOaTS [1971J:i S.C.R.", "label": "COURT", "start_char": 13827, "end_char": 13864, "source": "ner", "metadata": {"in_sentence": "However much may be the importance of the length of teaching experience the\n\n626 SUPREME COURT REPOaTS [1971J:i S.C.R.\n\nrule did not provide that as the determining factor."}}, {"text": "Setalvad appearing for the appellant drew our attention to Seniority Rules", "label": "STATUTE", "start_char": 16047, "end_char": 16121, "source": "regex", "metadata": {}}, {"text": "s. 26", "label": "PROVISION", "start_char": 17430, "end_char": 17435, "source": "regex", "metadata": {"statute": null}}, {"text": "Ayyangar", "label": "OTHER_PERSON", "start_char": 17535, "end_char": 17543, "source": "ner", "metadata": {"in_sentence": "Mr. Ayyangar appearing for the first respondent contended, first, that rule 5 was divided into two parts and that the provisicm for a statement in writing giving reasons for ignoring a person's total length of service as a teacher had to be complied with by the D Board and any disregard of this rule rendered the app0intmont\n\ninvalid."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 17977, "end_char": 17982, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 18123, "end_char": 18128, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_629_638_EN", "year": 1971, "text": "• - A\n\nALLOY STEEL PROJECT\n\nv.\n\nTHE WORKMEN\n\nFebruary 2, 1971\n\n(J. M. SHELAT, V. BHARGAVA C.A. VAIDIAL!NGAM, J.J.]\n\nPayment of Bonus Ac~ 21 of 1965-Exemption under s. 16(1) to new estabUshmenu-Al/oy Steel Project conl(olled and managed by Hinduslan Steel fad. whether an 'estab/ishment'-Word 'establishment whether synonymous with compa]!y'-A department or undertaking of an establishment is separate establishment for computation of bonus under the\n\nproviso to s. 3 if separate accoullls are maintained as in case of Alloy Steel -Section 16(2) comes in way only if bonus is distributed on basis of consolidared accounts which was never done in the case of Hindustan Steel.\n\nThe Alloy Steel Project was an undertaking controlled and managed by a government company, namely, the Hindustan Steel Ltd. Alloy Steel was started in 1961 and went into production in 1964-65. No profit was earned up to 1967-68. The workmen claimed bonus at the minimum rate prescribed under the Payment of Bonus Act, 21 of 1965 in respect of the year 1965-66. On behalf of the Alloy Steel Project exemption from payment of bonus was claimed under s. 16( 1) of the Act on the ground that it was a new establishment and had not made profits. The Industrial Tribunal to which reference was made held that Alloy Steel could not be treated as a separate establishment because under the Act a company is itself an establishment so that all units of a company like Hindustan Steel Ltd. will constitute one establishment. However, since Alloy Steel had not been earning profits the Tribunal dircted payment of bonus at the minimum rate of 4% of wages as prescribed by the Act. Aggrieved by this Award of the Tribunal the company appealed.\n\nHELD : The Tribunal erred in holding the word 'establishment' to be synonymous with 'company'. Jn doing so it ignored the indications which are manifest from the language of the Act. The significant words are those containei! in s. 2(16) which show that an establishment in a public secto'r has to be owned, controlled or managed by a Government company or by a corporation of the nature described in the clause.\n\nObviously therefore an 'establishment in private sector'--Oefined in s. 2(15) to mean an establishment not in the public se9tor-would be one which is owned, controlled or managed by a person or body other than a Gove'rnment company or a corporation of the nature described in s. 2(16). Jn this view an establishment cannot be identified with a company. It would be absurd to say that a company is owned, controlled or managed by a Government company or co'rporation.\n\nObviously, the word 'establishment' is intended to indicate something different from a company as defined in the Com panies Act. [631 F-632 DJ\n\n(ii) Alloy Steel was a separate establiShment by virtue of the proviso to s. 3 of the Act because for eacli of the undertakings of Hindmtan Steel Ltd. including Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act a consolidated balance-11heet and profit and loss. account were also prepared. There was no substance in the contention that the proviso to s. 3 applies only to departments undertaking or branches controlled and managed by persons\n\nother than companies.\n\nIt would be a stcange method of construction of Janguage to hold that the establishment referred to in the main part of s. 3 will include all different departments undertakings and branches of a company, while it will not do so in the proviso to the same section. There is no reason for interpreting the proviso to s. 3 in this manner simply because in the case of separate departments, undertakings or branches of the establishment of a company, it may not be possible to make a deduction\n\n(ti) 8.5% of the paid up equity share capital. [635 C-D; 633 G-634 HJ\n\n(iii) Sub-Section (!) of s. 16 grants exemption from payment of bonus to establishments newly set up for a period of six years following the accounting year in which the goods produced or manufactured are . sold\n\nfor the first time and, .in the alternative; upto the year when the new establisjtment results in profit, whichever is earlier. If the Alloy Steel Project was treated as an establishment newly set ui> for the purposes of s. 16(1) the exemption claimed would be fully justified. Section 16(2) of C the Act makes it clear that the provisions of sub-s. (!) are to apply even . to new departments, undertakings. or branches set up by existing establishment.\n\nConsequently, even if Alloy Steel Project was treated as a new undertaking set up by the existjng establishments of Hindustan Steel Ltd. the exemption under s. 16(1) would be available to it. [637 D-E]\n\nThe proviso to Sub-s. (2) of s. 16 only comes in the way if bonus is paid in any year to the employees of all the units on the basis of the consolidated accounts. That had never been done in the case of the Hindustan Steel Ltd. Consequently the Alloy Steel Project should have been treated as a separate establishment newly set up in the year 1961. It went into production in 1964-65 and did not earn any profits at all till 1967-68.\n\nTherefore no bonus was payable to the workmen of this undertaking Jor the year 1965-66 in view of the provisions of s. 16(1) of the Act. [638 A-BJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2128 of 1969.\n\nAppeal by special leave from the Award dated July 19, 1969 ol. the. Ninth Industrial Tribunal, West Bengal, Calcutta in case No. VllI-396 of 1968.\n\nC. K. Daphtary, Santosh Chatterjee and D. N. Mukherjee, for the appellant.\n\nS. C. Gupta, Manju Gupta and S. C. Agarwala, for the respondents,\n\nThe Judgment of the Court was delivered by\n\nBhargava, 1.\n\nThe appellant, Messrs Alloy Steel Project, is an undertaking owned, controlled and managed by a Government Company,. viz., Messrs Hindustan Steel Ltd. Alloy Steel Projec't was started in the year 1961 and it went into production in the yeir 1964-65. No profit was earned at Jeast right up to the year 1967-68: The workmen, however, claimed bonus at the minimum rate prescribed uni:ler the Payment of Bonus Act No. 21 of 1965\n\n(hereinafter referred to as \"the Act\") in respect of the year 1965-\n\n...\n\nA l 966 on the plea that this Alloy Steel Project was a part of the\n\n:Hindwtan Steel Ltd. and could not be treated as a new establishment for purposes of section 16 of the Act. Hindustan Steel Ltd. was itself an establiShment which had been in existence fo~ a long period and had'been even earning profits, so that exemption could not . be granted to this Company in respect of payment of bonus under s. 16 of the Act. This claim of the workmen was resisted. by the Company on the plea that Alloy Steel Project was a sepa- B\n\nrate establishment in respect of which separate balanoo-sheets and profit and loss accounts were maintained, so that no bonus was payable until either this Project rtself ear.tied profits, or from the sixth accounting year following the year 1964-65 when this Pro- . c iect 'l\\lellt into production. The dispute between the wor!.\"lllen and the Company could not be resolved amicably and, consequently, a reference was made under the Industrial Disputes Act, 1947 which came up before the Ninth Industrial Tribunal, West Benal. The Tribunal held that Alloy Steel Project could not be treated as a separate establishment because, under the Act, a Com-\n\nD pany is itself an establishment, so that all units of a Company like Hindustan Steel Ltd. will constitute one establishment. Since this Project had not been earning any profits the Tribunal directed pay.. ment of bonus at the minimum rate of 4 per cent of wages prescribed by the Act. Aggrieved by this award of the Tribunal, the Company has come up in this appeal to this Court by special leave,\n\nthough the name of 1lhe appellant is showa as Alloy Steel Project, because it was under this name that the reference was dealt with by the Tribunal.\n\nThe main basis of the decision of the Tribunal is that \"the word 'establishmcmt' has been used in thit Act to indicate a\n\n\"Company\" as called in common parlance.\". It was on this view that the Tribunal further proceeded to eonsider wh•r this Alloy ·. :r Steel Project could be lield to be .an establisbmerit separate.frolli · lfmdustan Steel Ltd., or it had to be treated 8s a part of the parent establishment, viz., Hindustan Steel Ud. In this approach, it . is clear that the Tn\"bunal committed. an obvious. error, a8 it ignored tile indications which are manifest from the language used in the Act.\n\nJn section 2, sub-section (15) and (16), establisbm• G . have been divided into two classes and their meaning has been\n\ndefined. In clause ( 16) , \"establishment in public sector\" is defined as meaning an establishment owned, controlled or managed by- ( a) a Government company as defined in section 617\n\nof the Companies Act, 1956;\n\n II\n\n(b) a corporation in which not less than forty per\n\ncent of its capital is held (whether singly or taken together) by-\n\n632 SUPREME COURT REPORtS\n\n(1971] 3 S.C.R.\n\n(i) the Goveljlllllent; or\n\n(ii) the Reserve Banlc of India; or\n\n(iii) a corporation owned by the Government or the Reserve Bank of India. ln clause ( 15) of s. 2, \"establishment in private sector\" is defined to mean any establi.shment other thain an establishment in public sector.\n\nThus, between these two clauses, all establishments are covered. If an establishment is in public sector, it is covered by the definition in clause ( 16). If the establishment is not in public sector, it will be covered by the definition of \"establishment in private sector\" in clause ( 15). The significant words are those contained in clause ( 16) which shGw that an establishment in a public sector has to be owned, controlled or managed by a Government compainy, or by a corporation of the nature described in that c1ause.\n\nObviously, therefore, an establishment in a private sector would be one which is owned, controlled or managed by a person or body other than a Government company or a corporation of the nature described iin clause ( 16) . In this view, an establishment cannot be identified with a company. It would 'be absurd to say that a company is owned, controlled or managed by a Government company or a corporation. Obviously; the word \"establishment\" is intended to indicate something. different from a company as d.efined in the Companies .Act.\n\nThis is further clarified by the provisions of sub-s. ( 3) of section 1 which lays down the applicability of the Act.\n\nThe Act has beeu made applicable to every factory and every other establishment in which twenty or more persons are employed on any day dming an accounting year.\n\nSupposing a company has a factory in one premises and has another workshop entirely distinct and separate from that factory, 1in which the number of persons employed 's Jess than 20. The Act itseli will apply to the factory, but will not apply to the-0ther estl!blishment in which the number of employees is Jess than 20.\n\nThis applicability of the Act will be independent of the other provisions of the Act.\n\nLearned counsel for the respondent-workmen relied on section 3 of the Act to urge that . even the estabishment employing less than 20 persons will be a part of the parent establishment consisting of the factory.\n\nSection 3 is as follows :-\n\n\"3. Where an establishment consists of different departments or unclertakings or has branches, whether situated in the .same place or in different places, all such clepartments or undertakings or branches shall be treated H as parts of the same establishment for the purpose of computation of bonus under this Act :\n\nA Provided that where for any accounting year a separate balance-sheet and profit and Joss account are prepared and maintained in respect of any such department or undertaking or branch, then, such department or undertaking or branch shall be treated as a separate establishment for the purpose of computation of bonus B under this Act for that year, unless such department or undertaking or branch was, immediately before the commencement of that accounting year treated as part of the establishment for the purpose o( computation of bonus.\" It is to be noted that the principal J?llrt of section 3 Jays down that different departments or undertakings or branches of an estab- C Iishment are to be treated as part of the same establishment only for the purpose of computation of bonus under the Act. They cannot be treated as part of one establishment for purposes of subsection ( 3) of section 1 of the Act.\n\nIn fact, section 3 cannot be resorted to at all when the Act itself is inapplicable in view of the provision contained in section 1, sub-s. ( 3). It D is, thus, quite clear that the Tribunal went entirely wrong in holding tllat simply because Alloy S!P...el Project is owned, controlled and managed by Hindustan Steel Ltd., it has to re treated as a part of Hindustan Steel Ltd. which is itself an establishment.\n\nHindustan Steel Ltd. cannot be descnlx:d as an establishment. The facts appearing on the record show that Hindustan Steel Ltd. has a number of establishments. These include Alloy Steel Project E besides the Head Office, Rourkela Steel Plant, Bhilai Steel Plant,\n\nDurgapur Steel Plant, Coal Washeries Project and Bokaro Steel Project. The Company, Hindustan Steel Ltd., cannot be equated with any one of these units. They are all separll_te undertakings, departments or branches owned, controlled and managed by one single Compaiiy and, consequently, the point raised has to be F decided on the basis whether, under the proviso to section the\n\nAIJoy Sl Project is to be treated as a separate establishment, or is to be treated as part of the main establishment owned by Hindustan Steel Ltd.\n\nLearned counsel for the respondent-workmen, however, G advanced a new argument which was not put forward before the\n\nTribunal.\n\nHis submission was that, if an establishment . of a Company consists of a number of departments, undertakings or branches, the prinipal part of section 3 will apply and all such departments, undertakings or branches must be treated as parts of one single establishment for purposes of computation of bonus H under the Act, but the proviso to section 3 will not apply in such\n\na case. According to him, the proviso to section 3 will apply to establishments consisting of different departments, undertakings or branches which are owned, controlled or managed by persons other!\n\nt.han companies. This argument was based on the reasoning that, A in order to calculate available surplus for distribution of bonus in the case of a company, the Act Jays down in section 6(d) read with the Third Schedule that the deductions to be made from net profits will also include dividends payable on preference share capital, and 8.5 per cent of its paid u)J equity share capital as at the commencement of the accounting year.\n\nThis provision can- B not be given effect to in respect of separate units of a Company, because the paid up capltal or the preference share capital is not allocated between different unit§.\n\nIn the case of the present Company, viz., Hindustan Steel Ltd., the entire paid up capital is §hown in the accounts of the Head Office.\n\nThe money needed for working of the various units, including the Alloy Steel Project, is.shown C as remittance received from the Head Office and not as paid up capital of the Alloy Steel Project etc. The result is that, if Alloy Steel Project or other' units of the Hindustan Steel Ltd. are treated as separate establishments and available surplus is calculated separately for each unit, there will be no deduction @8.5 per cent of the paid up equity share capital as envisaged by section 6 ( 4) and the Third Schedule of the Act.\n\nWe do not think that there is any force in this argument.\n\nFirst, it would be a strange method of construction of language to hold that the establishment referred to in the main part of section 3 will include all di£' erent departments, undertakings and branches of a company, while it will not do so in the proviso to E the same section.\n\nSuch different meanings in the same section in respect of the same words or expression cannot be accepted.\n\nSecondly, it seems to us that no difficulty of the nature pointed out by learned counsel can arise in calculating available surplus.\n\nWherever the Act lays down that certain deductions are to be -made, It is obvious that those deductions will only be effective if, in fact, circumstances do exist justifying such deductions.\n\nIn the F Third Schedule itself, the first deduction envisaged is dividend payable on preference share capital. A number of companies do not have preference share capital. In such cases, clearly, no occasion would arise for\" making such a deduction.\n\nVery similar is the position with regard to certian other deductions which are permissible under the Second Schedule which principally Jays down G the method of calculation of available surplus.\n\nThere is, therefore, no reason for interpreting the proviso to section 3 in the manner urged by learned counsel simply because, in the case of separate departments, undertakings or branches of the establishment of a company, it may not be possible to make a deduction @8.5 per cent of the paid up equity share capital.\n\nH In the present case, there is very clewevidence that, though the Company, Hindustan Steel Ltd., has a number of undertakings,\n\nA Separate accounts are kept for each separate undertaking.\n\nThe annual reports for three years were produced before the Tribunal.\n\nThey clearly indicate that separate balance-sheet was prepared for\n\neach unit and separate profit and loss account was worked out for each unit, except that, for the Head Office, though a separate palance-sheet was prepared, the profit and loss w:, s worked out on B the basis of the consolidated accou, nts.\n\nThe Tribunal, in support of its view that Alloy Steel Project is a part of the establishment constituted by the Company, Hindustan Steel Ltd., relied on the circumstance that a consolidated balance-sheet is prepared for the .• Company in respect of all its units and after such consolidati~. profit nd loss is also worked out for all the establishments together c so as to find out the actual profit and loss earned or incurred by the Company itself. From this, the tribunal sought to infer that there ere no separate accounts in respect of each unit as are required to be maintained before they can be treated as separate establishments under the proviso to section 3. The Tribunal has obviously gone wrong in ignoring the fact that separate balancesheets and profit and loss accounts are in fact maintained for each D separate unit and the consolidated accounts are prepared only for the purpose of complying with the requirements of the Companies Act.\n\nThe Companies Act does lay down the requirement that a consolidated balance-sheet and profit and loss account for all the units of the Company must be prepared and, for that purpose, quarterly statements of accounts have to be sent by each unit to E the Head Office.\n\nThere is, however, no provision even in the Companies Act containing a prohibition to mainte_nance of separate balance-sheets and separate profit and loss statements for each unit for purposes of the Act.\n\nThat accounts are separately maintained for each unit is not only established from the various annual reports filed before the Tribunal a.nd the evidence of the Com- F pany's witness Umapada Chakraborty, but is also admitted by Suprakash Kanjilal, the only witness examined on behalf of the workmen.\n\nThe latter also admitted that separate bonus calcula, tion is made in respect of each unit and bonus was declared separatejy in each unit.\n\nNo bonus was, however, declared in respect of the Alloy Steel Project.\n\nThat declaration was not made G because of the claim that Alloy Steel Project was exempt from payment of bonus under section 16 of the Act. Section 16 runs as follows :-\n\n\"16. (1) Where an establishment is newly set up, whether before or aftr the commenceme11t of this Act, the employees of such establishment shall be entitled to H be paid bonus under this Act only-\n\n(a) from the accounting year in which the employer derives profit from such establishment; or ll-918Sup CI/71\n\n( b) from the sixth accounting year following the accounting year in which the employer selis the goods produced or manufacturecl by .him or renders services, as the case, may be, from such establishment,\n\nwhichever is earlier :\n\nProvided that in the case of any such establishment the employees thereof shall not, save as otherwise provided in. section 33, be entitled to be paid bonus under this Act in respect of any accounting year prior to the accounting year commencing on any day in the year 1964.\n\nExplanation !.-For the purpose of this section, an establishment shall not be deemed to be newly set uir merely by reason of a change in its location, manageme.nt, name or ownership.\n\nExplanation H.-For the purpose of clause (a), an employer shall not be deemed to have derived profit in any accounting year unless-\n\n( a) he has made provision for that year's depreciation to which he is entitled under the Income-tax Act or, as the case may be, under the agricultural income-tax law; and\n\n(b) the arrears of such depreciation and losses incurred by him in respect of the establishment for the previous accounting years have been fully set off against his profits.\n\n. Explanation III.-For the purpose of clause (b), sale of the goods produced or manufactured during the course of the trial run of any factory or of the prospecting stilge of any mine or an oil-field shall not be taken\n\ninto consideration and where any question arises with G regard to such production or manufacture, the decision of the appropriate Government, made after giving the parties. a reasonable opportunity of representing the cas\\l, shall be final and shall not be called in question by any court or other authority.\n\n( 2) The provisions of sub-section (1 ) shall, so far as may be, apply to new departments or undertakings or branches set up by existing establishments :\n\nProvided that if an employer in relation to an exist ing establishment consisting of different departments or undertakings or branches (whether or not in the same industry) set up at different periods has, before the 29th May, 1965, been paying bonus_to the employees of all such departments or underta:kings or branc, hes irrespective of the date on which such departments or undertakings or branches were set up, on the basis of the consolidated profits computed in respect of all such departments or undertakings or branches, then, such employer shall be liable to pay bonus in accordance\n\nwith the provisions of this Act to the employees of all such departments or undertakings or branches (whether set up before or after that date) on the basis of consolidated proits computed as aforesaid.\"\n\nSub-section (1) of section 16 grants exemption from payment of bonus to establishments newly set up for a period of six years. following the accounting year in which the goods produced . or D manufactured are sold for the first time and, in the alternative; up to the year when the new establishment results in profit, whichever is earlier. If the Alloy Steel Project is treated as an establishment newly set up for purposes of s. 16 (1), the exemption claimed would be fully justified.\n\nSection 16(2) of the Act mak~ it clear that the provisions of sub-section (1) are to apply even to new E departments, undertakings or branches set up by existing establishments.\n\nConsequently, even if Alloy Steel Project is treated 1as a new undertaking set up by the existing establishments of Hindustan Steel Ltd., the exemption under section 16(1) would be available .to it.\n\nThe proviso to sub-s, (2) of section 16 also does. not stand in the way of this claim, because there is no evidence at all that F in any year, after Alloy Steel Project was set up, bonus was pald'- to the employees of all the units on the basis of consolidated profits of all such uiiits.\n\nThe only exception has been in Tue case of workmen of the Head Offie where no separate profit and loss was worked out and the bonus was paid on the basis of the consolidated profits of all the units belonging to Hindustan Steel Ltd.\n\nG That, of course~ was fully justified, because the Head Office was working for all the units, thQugh as a separate unit. It was in the accounts of the Head Office that the entire paid up capital wa~\n\ncredited and advances were made by the Head Office to the various units out of this capital or out of loans taken by the Head Office.\n\nIn the case of the Head Office, therefore, the calculation of bOnus\n\non the basis of consolidated acCOU; llts was iustified; but that does H not affect the principle to be applied to the separate 'llllits for which separate accounts, separate balance-sheets and sep11, rate profit and loss statements are maintained. The proviso to sub-\n\nA section ( 2) of section 16 only comes i, n the way if bonus is paid in any year to the employees of all the units on the basis of consolidated accounts.\n\nThat has never been done in the case of the Hindustan Steel Ltd. Co, nsequently, the Alloy Steel Project should have been treated as a separate establishment newly set up in the year 1961. It went into production in 1964-65 and did not earn any profits at all till 1967-68. Therefore, no bonus was payable, B to the workmen of this undertaking for the year 1965-66 in view of the provisions of section 16 ( 1) of the Act.\n\nThe appeal is allowed, the order of the Tribunal is set aside, . and the reference of the dispute , is answered accordingly. In the\n\ncircumtances of this case, we direct parti.es to bear their own costs of the appeal.\n\nG.C.\n\nAppeal allowed.\n\n• ..", "total_entities": 92, "entities": [{"text": "A\n\nALLOY STEEL PROJECT", "label": "PETITIONER", "start_char": 4, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "ALLOY STEEL PROJECT", "offset_not_found": false}}, {"text": "February 2, 1971", "label": "DATE", "start_char": 45, "end_char": 61, "source": "ner", "metadata": {"in_sentence": "• - A\n\nALLOY STEEL PROJECT\n\nv.\n\nTHE WORKMEN\n\nFebruary 2, 1971\n\n(J. M. SHELAT, V. BHARGAVA C.A. VAIDIAL!NGAM, J.J.]\n\nPayment of Bonus Ac~ 21 of 1965-Exemption under s. 16(1) to new estabUshmenu-Al/oy Steel Project conl(olled and managed by Hinduslan Steel fad."}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 67, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "V. BHARGAVA", "label": "JUDGE", "start_char": 78, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "V. BHARGAVA", "offset_not_found": false}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 164, "end_char": 172, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 462, "end_char": 466, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(2)", "label": "PROVISION", "start_char": 531, "end_char": 544, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindustan Steel", "label": "ORG", "start_char": 657, "end_char": 672, "source": "ner", "metadata": {"in_sentence": "whether an 'estab/ishment'-Word 'establishment whether synonymous with compa]!y'-A department or undertaking of an establishment is separate establishment for computation of bonus under the\n\nproviso to s. 3 if separate accoullls are maintained as in case of Alloy Steel -Section 16(2) comes in way only if bonus is distributed on basis of consolidared accounts which was never done in the case of Hindustan Steel."}}, {"text": "Alloy Steel Project", "label": "ORG", "start_char": 679, "end_char": 698, "source": "ner", "metadata": {"in_sentence": "The Alloy Steel Project was an undertaking controlled and managed by a government company, namely, the Hindustan Steel Ltd. Alloy Steel was started in 1961 and went into production in 1964-65."}}, {"text": "Hindustan Steel Ltd.", "label": "ORG", "start_char": 778, "end_char": 798, "source": "ner", "metadata": {"in_sentence": "The Alloy Steel Project was an undertaking controlled and managed by a government company, namely, the Hindustan Steel Ltd. Alloy Steel was started in 1961 and went into production in 1964-65."}}, {"text": "The workmen", "label": "RESPONDENT", "start_char": 904, "end_char": 915, "source": "metadata", "metadata": {"canonical_name": "THE WORKMEN", "offset_not_found": false}}, {"text": "Payment of Bonus Act", "label": "STATUTE", "start_char": 971, "end_char": 991, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 16( 1)", "label": "PROVISION", "start_char": 1123, "end_char": 1132, "source": "regex", "metadata": {"statute": null}}, {"text": "Alloy Steel", "label": "ORG", "start_char": 1278, "end_char": 1289, "source": "ner", "metadata": {"in_sentence": "The Industrial Tribunal to which reference was made held that Alloy Steel could not be treated as a separate establishment because under the Act a company is itself an establishment so that all units of a company like Hindustan Steel Ltd. will constitute one establishment."}}, {"text": "s. 2(16)", "label": "PROVISION", "start_char": 1937, "end_char": 1945, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(15)", "label": "PROVISION", "start_char": 2191, "end_char": 2199, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(16)", "label": "PROVISION", "start_char": 2398, "end_char": 2406, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2808, "end_char": 2812, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindmtan Steel Ltd.", "label": "ORG", "start_char": 2865, "end_char": 2884, "source": "ner", "metadata": {"in_sentence": "631 F-632 DJ\n\n(ii) Alloy Steel was a separate establiShment by virtue of the proviso to s. 3 of the Act because for eacli of the undertakings of Hindmtan Steel Ltd. including Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act a consolidated balance-11heet and profit and loss."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 2999, "end_char": 3012, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3153, "end_char": 3157, "source": "regex", "metadata": {"linked_statute_text": "Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act", "statute": "Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3388, "end_char": 3392, "source": "regex", "metadata": {"linked_statute_text": "Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act", "statute": "Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3583, "end_char": 3587, "source": "regex", "metadata": {"linked_statute_text": "Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act", "statute": "Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 3855, "end_char": 3860, "source": "regex", "metadata": {"linked_statute_text": "Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act", "statute": "Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act"}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 4264, "end_char": 4272, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(2)", "label": "PROVISION", "start_char": 4321, "end_char": 4334, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 4655, "end_char": 4663, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 4730, "end_char": 4735, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 5252, "end_char": 5260, "source": "regex", "metadata": {"statute": null}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 5494, "end_char": 5508, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Santosh Chatterjee and D. N. Mukherjee, for the appellant."}}, {"text": "Santosh Chatterjee", "label": "LAWYER", "start_char": 5510, "end_char": 5528, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Santosh Chatterjee and D. N. Mukherjee, for the appellant."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 5533, "end_char": 5548, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Santosh Chatterjee and D. N. Mukherjee, for the appellant."}}, {"text": "S. C. Gupta", "label": "LAWYER", "start_char": 5570, "end_char": 5581, "source": "ner", "metadata": {"in_sentence": "S. C. Gupta, Manju Gupta and S. C. Agarwala, for the respondents,\n\nThe Judgment of the Court was delivered by\n\nBhargava, 1."}}, {"text": "Manju Gupta", "label": "LAWYER", "start_char": 5583, "end_char": 5594, "source": "ner", "metadata": {"in_sentence": "S. C. Gupta, Manju Gupta and S. C. Agarwala, for the respondents,\n\nThe Judgment of the Court was delivered by\n\nBhargava, 1."}}, {"text": "S. C. Agarwala", "label": "LAWYER", "start_char": 5599, "end_char": 5613, "source": "ner", "metadata": {"in_sentence": "S. C. Gupta, Manju Gupta and S. C. Agarwala, for the respondents,\n\nThe Judgment of the Court was delivered by\n\nBhargava, 1."}}, {"text": "Bhargava", "label": "JUDGE", "start_char": 5681, "end_char": 5689, "source": "ner", "metadata": {"in_sentence": "S. C. Gupta, Manju Gupta and S. C. Agarwala, for the respondents,\n\nThe Judgment of the Court was delivered by\n\nBhargava, 1.", "canonical_name": "V. BHARGAVA"}}, {"text": "Messrs Alloy Steel Project", "label": "PETITIONER", "start_char": 5710, "end_char": 5736, "source": "ner", "metadata": {"in_sentence": "The appellant, Messrs Alloy Steel Project, is an undertaking owned, controlled and managed by a Government Company,."}}, {"text": "Payment of Bonus Act", "label": "STATUTE", "start_char": 6084, "end_char": 6104, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindwtan Steel Ltd.", "label": "ORG", "start_char": 6265, "end_char": 6284, "source": "ner", "metadata": {"in_sentence": "21 of 1965\n\n(hereinafter referred to as \"the Act\") in respect of the year 1965-\n\n...\n\nA l 966 on the plea that this Alloy Steel Project was a part of the\n\n:Hindwtan Steel Ltd. and could not be treated as a new establishment for purposes of section 16 of the Act."}}, {"text": "section 16", "label": "PROVISION", "start_char": 6349, "end_char": 6359, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 6596, "end_char": 6601, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 7154, "end_char": 7183, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ninth Industrial Tribunal, West Benal", "label": "COURT", "start_char": 7209, "end_char": 7246, "source": "ner", "metadata": {"in_sentence": "The dispute between the wor!.\"lllen and the Company could not be resolved amicably and, consequently, a reference was made under the Industrial Disputes Act, 1947 which came up before the Ninth Industrial Tribunal, West Benal."}}, {"text": "Hindustan Steel Ud", "label": "ORG", "start_char": 8339, "end_char": 8357, "source": "ner", "metadata": {"in_sentence": "Hindustan Steel Ud."}}, {"text": "section 2", "label": "PROVISION", "start_char": 8528, "end_char": 8537, "source": "regex", "metadata": {"statute": null}}, {"text": "section 617", "label": "PROVISION", "start_char": 8817, "end_char": 8828, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 8837, "end_char": 8856, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 9144, "end_char": 9165, "source": "ner", "metadata": {"in_sentence": "In clause ( 16) , \"establishment in public sector\" is defined as meaning an establishment owned, controlled or managed by- ( a) a Government company as defined in section 617\n\nof the Companies Act, 1956;\n\n II\n\n(b) a corporation in which not less than forty per\n\ncent of its capital is held (whether singly or taken together) by-\n\n632 SUPREME COURT REPORtS\n\n(1971] 3 S.C.R.\n\n(i) the Goveljlllllent; or\n\n(ii) the Reserve Banlc of India; or\n\n(iii) a corporation owned by the Government or the Reserve Bank of India."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9186, "end_char": 9190, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "section 1", "label": "PROVISION", "start_char": 10440, "end_char": 10449, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 11123, "end_char": 11132, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 11283, "end_char": 11292, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12218, "end_char": 12227, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 12516, "end_char": 12525, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12548, "end_char": 12557, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 12661, "end_char": 12670, "source": "regex", "metadata": {"statute": null}}, {"text": "Rourkela Steel Plant", "label": "ORG", "start_char": 13173, "end_char": 13193, "source": "ner", "metadata": {"in_sentence": "These include Alloy Steel Project E besides the Head Office, Rourkela Steel Plant, Bhilai Steel Plant,\n\nDurgapur Steel Plant, Coal Washeries Project and Bokaro Steel Project."}}, {"text": "Bhilai Steel Plant", "label": "ORG", "start_char": 13195, "end_char": 13213, "source": "ner", "metadata": {"in_sentence": "These include Alloy Steel Project E besides the Head Office, Rourkela Steel Plant, Bhilai Steel Plant,\n\nDurgapur Steel Plant, Coal Washeries Project and Bokaro Steel Project."}}, {"text": "Durgapur Steel Plant", "label": "ORG", "start_char": 13216, "end_char": 13236, "source": "ner", "metadata": {"in_sentence": "These include Alloy Steel Project E besides the Head Office, Rourkela Steel Plant, Bhilai Steel Plant,\n\nDurgapur Steel Plant, Coal Washeries Project and Bokaro Steel Project."}}, {"text": "Coal Washeries Project", "label": "ORG", "start_char": 13238, "end_char": 13260, "source": "ner", "metadata": {"in_sentence": "These include Alloy Steel Project E besides the Head Office, Rourkela Steel Plant, Bhilai Steel Plant,\n\nDurgapur Steel Plant, Coal Washeries Project and Bokaro Steel Project."}}, {"text": "Bokaro Steel Project", "label": "ORG", "start_char": 13265, "end_char": 13285, "source": "ner", "metadata": {"in_sentence": "These include Alloy Steel Project E besides the Head Office, Rourkela Steel Plant, Bhilai Steel Plant,\n\nDurgapur Steel Plant, Coal Washeries Project and Bokaro Steel Project."}}, {"text": "AIJoy Sl Project", "label": "PETITIONER", "start_char": 13596, "end_char": 13612, "source": "ner", "metadata": {"in_sentence": "They are all separll_te undertakings, departments or branches owned, controlled and managed by one single Compaiiy and, consequently, the point raised has to be F decided on the basis whether, under the proviso to section the\n\nAIJoy Sl Project is to be treated as a separate establishment, or is to be treated as part of the main establishment owned by Hindustan Steel Ltd.\n\nLearned counsel for the respondent-workmen, however, G advanced a new argument which was not put forward before the\n\nTribunal."}}, {"text": "section 3", "label": "PROVISION", "start_char": 14016, "end_char": 14025, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 14214, "end_char": 14223, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 14289, "end_char": 14298, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6(d)", "label": "PROVISION", "start_char": 14627, "end_char": 14639, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 14654, "end_char": 14668, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 15693, "end_char": 15702, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 15716, "end_char": 15730, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 15930, "end_char": 15939, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 16527, "end_char": 16541, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 16869, "end_char": 16884, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 17027, "end_char": 17036, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 18514, "end_char": 18523, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 18795, "end_char": 18808, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 18815, "end_char": 18828, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 19123, "end_char": 19136, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Umapada Chakraborty", "label": "WITNESS", "start_char": 19468, "end_char": 19487, "source": "ner", "metadata": {"in_sentence": "That accounts are separately maintained for each unit is not only established from the various annual reports filed before the Tribunal a.nd the evidence of the Com- F pany's witness Umapada Chakraborty, but is also admitted by Suprakash Kanjilal, the only witness examined on behalf of the workmen."}}, {"text": "Suprakash Kanjilal", "label": "WITNESS", "start_char": 19513, "end_char": 19531, "source": "ner", "metadata": {"in_sentence": "That accounts are separately maintained for each unit is not only established from the various annual reports filed before the Tribunal a.nd the evidence of the Com- F pany's witness Umapada Chakraborty, but is also admitted by Suprakash Kanjilal, the only witness examined on behalf of the workmen."}}, {"text": "section 16", "label": "PROVISION", "start_char": 19915, "end_char": 19925, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 19938, "end_char": 19948, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 20624, "end_char": 20634, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 21191, "end_char": 21205, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "29th May, 1965", "label": "DATE", "start_char": 22352, "end_char": 22366, "source": "ner", "metadata": {"in_sentence": "( 2) The provisions of sub-section (1 ) shall, so far as may be, apply to new departments or undertakings or branches set up by existing establishments :\n\nProvided that if an employer in relation to an exist ing establishment consisting of different departments or undertakings or branches (whether or not in the same industry) set up at different periods has, before the 29th May, 1965, been paying bonus_to the employees of all such departments or underta:kings or branc, hes irrespective of the date on which such departments or undertakings or branches were set up, on the basis of the consolidated profits computed in respect of all such departments or undertakings or branches, then, such employer shall be liable to pay bonus in accordance\n\nwith the provisions of this Act to the employees of all such departments or undertakings or branches (whether set up before or after that date) on the basis of consolidated proits computed as aforesaid.\""}}, {"text": "section 16", "label": "PROVISION", "start_char": 22952, "end_char": 22962, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 23361, "end_char": 23366, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(2)", "label": "PROVISION", "start_char": 23421, "end_char": 23434, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16(1)", "label": "PROVISION", "start_char": 23758, "end_char": 23771, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 23829, "end_char": 23839, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 25016, "end_char": 25026, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindustan Steel Ltd. Co", "label": "ORG", "start_char": 25198, "end_char": 25221, "source": "ner", "metadata": {"in_sentence": "That has never been done in the case of the Hindustan Steel Ltd. Co, nsequently, the Alloy Steel Project should have been treated as a separate establishment newly set up in the year 1961."}}, {"text": "section 16", "label": "PROVISION", "start_char": 25548, "end_char": 25558, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_639_645_EN", "year": 1971, "text": "63~\n\nBHUBANESHWAR PRASAD NARAIN SINGH & ORS.\n\nSIDHESWAR MUKHERJEE & ORS.\n\nB February 2, 1971\n\n[G. K. MITTER AND A. N. RAY, JJ.]\n\nBilu1r Land Rcfonns Act, 1950, r. 6--Scope of-Effect on co-sharer'i posJ't:Jston.\n\nIn a suit for partition of bakasht land a preliminary decNe was passc ed.\n\nThe defendants-appellants, claiming to be in actuar possession of the bakasht land, filecl a petition contending that the consequence of s. 6 of the Bihar Land Reforms Act, 19'50 (which came into force in the meanwhile) was to put an end to the proprietor's possession of the b.akasht land by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession. thereof, and therefore, no final decree could be passed. The trial court accepted the contention and dismissed the plaintiff's application for pass- D ing final decree. In appeal, the High Court set aside the order.\n\nIn appeal to this Court,\n\nHELD : Even if the appellants were in actual khas possession within the meaning of s. 2 (kl of the Act, it must be held that the plaintiff respondent, who was a co-sharer, was in constructive possession through the appellants, as, under the law, posslssion of one co-sharer is posses- E sion of all co-shares. The appellants did not claim to be trespassers on the property neither did they claim any title to the lands adversely to \"the respondent. . The deeming provision of s. ll inust, therefore, enure for the benefit of all. who in the eye of land would be regarded .as in actual possession. Therefore, the respondent had not Jost his •hare , in the bakasht lands and had a right to his share in them; though not dves came to court.\" Noting the statement of-the plaintiffs in their plaint that the mortgagees had fulfilled their obligations and the obstruction to possession was put forward only by persons :-vho claimed occupancy rights this Court co, ncluded that, in the circumstances of the case, it was not possible for the appellants to contend that these tenants (defendants 1st and 2nd parties) wer\" in possession of the property on behalf of the mortgagor or by virtue -rk, their ser •\n\nvices last only for the period during which the 12-918 Sup Cl/71\n\nwork lasts.\n\nTo put it differently there will be automatic termination of the services of an employee when the specific work for which he was engaged is completed;\n\n(iii) before the completior. of a work, a workman can be dismissed for serious misconduct. In such a case no question of giving a month's notice or a month's pay in lieu of notice arises;\n\n(iv) before the completion of the work, the workman can also be dismissed otherwise than for serious misconduct, i'l which case the workman will be entitled to a month's notice or a month's pay in lieu of notice;\n\n(v) in other cases the workman's services terminate when the work ends;\n\n(vi) if the workman desires to resign his appointment, D he must give one month's notice of his intention to do so, failing which he will be required to forfeit a month's pay in lieu of such notice.\n\nThat the above are terms of engagement of a workman, is c:ear from the concluding part of paragraph 11 to the effect that \"the terms of engageme.nt should be clearly explained to men employed in the circumstances mentioned above.\"\n\nThe question that arises for consideration is about the connotation of the expression \"dismissed\" used in paragraph 11. The contention of Mr. Ramamurthy that the expression \"dismissed\" has reference only to termination of the services of an employee as and by way of punishment is largely based upon the provisions contained in the Governmin a person is dismissed, though not for a serious misconduct but even for a minor misconduct, the werkman will be entitled to a month's notice or a month's pay in lieu of notice, if otherwise there can' be a dismissal for a minor misconduct as and by way of punishment.\n\nSo far as. we dmld see no decision has laid down that even in cases of dismissal a workman will be entitled to a month's notice or a month's pay. If it is a dismissal by way of punishment, no question of a month's notice or a month's pay in lieu of notice ever arises. The fact that Pararaph 11 provide•. for giving a month's notice or a month's pay when a workman is dismissed otherwi~~ than for. serious misccinduci indicates that the word \"dismissed\" has not been used in the sense of termination of service by YYed'' because Pralie . Peseyie ·.\n\nwithout the appellant's knowledge put the word~ \"Please vote for T. N. Angami\" on. the blue identity cards and the appellant asked Pralie Peseyie' to get the identity. cards teprintcd. . Pralie Peseyie therefore placed order to get 6000 identity cards printed again.· He sa.id that he paid Rs .. 90 from his .own/pocket as he felf that it G 'Was his responsibility to get the cards printed correctly.\n\nHe also said that he never asked the appellant to re-imburse him for .that amount of Rs. 9P.\n\nIn cross-examination he was asked whether ile told the i!'p0ellant that he paid Rs. 90. His answer was in the ne:itative. ; Pralie ~yie further said that the words \"Please\n\nvote for T. N. Angam1\" were not pn the sample that the appellant H :ci@e but the witness added those words without the knowledge of\n\nthe ; ippellant. The witness was asked a dirct question. as to whl amount the witness spent for the appelfant m the election and his\n\nanswer was ·\"I paid Rs. 90 for the prill'ting of the pink identity cards and no more\".\n\nThe High Court held that the amount of Rs. 90 must have been paid to the press by Pralie Peseyie on behalf of the app!llant and therefore the expenditure was incurred by the appellant as well as authorised by him in connection with his election.\n\nThe respondent in the election petition alleged that the appellant\" paid Rs. 90. The Representation of the People Act uses !he words 'incurring' and 'authorising' the expenditure. The appellant denied that he paid Rs. 90. It was never sugg!Sted to the\n\nappellant that he had authorised the expenditure of Rs. 90. On the contrary, the positive evidence of the appellant is that he was annoyed with Pralie Peseyie for introducing the words 'Vote for T. N .. Angami' on the blue identity cards and therefore the appellant .wanted Pralie Peseyie to get the cards reprinted correctly. It is also the evide; nce of Pralie Peseyie that he did something wrong\n\nandA1e had to have it corrected. . He therefore paid Rs. 90 out of his own pocket. The most significant feature in the evidence is that the bill for Rs. 90 was never produced 9r sent to the appellant whereas the bill for the blue identity cards was sent to the appellant. The manner in which the appellant reprimanded Pralie\n\nPeseyie for adding the words \"Vore for T. N. Angami\" would not necessarily invo]ve an obligation to pay and authorise an expenditure for getting the cards reprinted correctly1 If it were the fault of the press, the pre!iS would have to rect1y the same. On the other hand,· 1f thi: blame ftll on Pra!ie Peseyie he would have to bear the brunt . The fact that the b.ill was. not sent to the appellant shows that the fault was of the Witness Pra1ie Peseyie. The oral evidence also points to that inescapable conclusion.\n\nThe High Court was in error i, n holding on the evidence that the expenditure for Rs. 90 'was incurred or authorised by the appellant. This finding is not supported bv the evidence and on the contracy it ia repelled,~}'. the eviden~.- We cannot help\n\n~!>serving tha~ both the apa, nt and Pi:ali6 Peseyie gave evidence 111 a very str111ghtforward and truthful manner. They narrated the correct course of events. We a<; cept their evidence and hold that the appellant neither incurred nor authorised the oxpenditurr: of Rs. 90 for the pink identity cards.\n\nIt would, therefore, not be necessary for us to go into the ques.. lion whethet. the sum of Rs. 41.50 for trunk calls and .e of Rs: 22.65 for purchase of forms and hand-books were mcurred or authoris¢ by the appellant. Even if those two sums of money were added, the return' would not be in violation of the maxiiiliim amount of Rs. 1000/-.\n\nSUPREME COURT REPORTS\n\n(197 J J 3 S.C.R.\n\nCounsel for the respondent contended that the findings of the High Court on allegations contained in paragraph l (a), (i) and\n\n(j) of particulars of corrupt practice mentioned in paragraph 6 of the petition were incorrect and the High Court should have held that the appellant was guilty of corrupt practice.\n\nParagraph 1 (a) relates to a charge against 'the appellant of having paid Rs. 200 in cash to Dolhoutha Gaonbura of Zubra :i; nd one bag of sugar for entertainment of electors attending a function at Zubra on 25 J anuary, 1969.\n\nParagraph l (f) alleges that on 27 January, 1969 a women's meeting was held at Daklane when it was announced that a procession would be taken out on 1 February, 1969.\n\nAbout 200 people mostly women formed a procession shouted slogans to vote for the appellant and the appeJ.lant asked them to vote for him and after the meeting a feast was held at the appellant's house at which drinks were served to the people. Paragraph 1 (j) alleges that on 27 January, 1969 the appellant and his wife and some other persons came to the village Pedugei in\n\nconnection with the election and held a meeting where the appellarrt and his wife promised 8 bundles of corrugated iron sheets for the women of Kiruphema with the object of inducing diem to vote for the appellant and corrugated iron sheets were later on brought from Dimapur by a truck belonging to Mizielhouto and divided amongst three groups of people.\n\nThe appellant in the written statement denied the charges.\n\nThe respondent did. not have personal knowledge of the feast alleged in paragraph 1 (a) of the particulars but three witnesses were examined on behalt of the, respondent.\n\nOn behalf of the appellant there was the evidence of Dolhoutha Yed'' because Pralie .", "canonical_name": "Pralie . Peseyie"}}, {"text": "Pralie", "label": "OTHER_PERSON", "start_char": 10709, "end_char": 10715, "source": "ner", "metadata": {"in_sentence": "Pralie ~yie further said that the words \"Please\n\nvote for T. N. Angam1\" were not pn the sample that the appellant H :ci@e but the witness added those words without the knowledge of\n\nthe ; ippellant."}}, {"text": "T. N. Angam1", "label": "PETITIONER", "start_char": 10767, "end_char": 10779, "source": "ner", "metadata": {"in_sentence": "Pralie ~yie further said that the words \"Please\n\nvote for T. N. Angam1\" were not pn the sample that the appellant H :ci@e but the witness added those words without the knowledge of\n\nthe ; ippellant.", "canonical_name": "T. N .. Angami"}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 11445, "end_char": 11477, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "T. N .. Angami", "label": "PETITIONER", "start_char": 11808, "end_char": 11822, "source": "ner", "metadata": {"in_sentence": "On the contrary, the positive evidence of the appellant is that he was annoyed with Pralie Peseyie for introducing the words 'Vote for T. N .. Angami' on the blue identity cards and therefore the appellant .wanted Pralie Peseyie to get the cards reprinted correctly.", "canonical_name": "T. N .. Angami"}}, {"text": "Pralie\n\nPeseyie", "label": "OTHER_PERSON", "start_char": 12331, "end_char": 12346, "source": "ner", "metadata": {"in_sentence": "The manner in which the appellant reprimanded Pralie\n\nPeseyie for adding the words \"Vore for T. N. Angami\" would not necessarily invo]ve an obligation to pay and authorise an expenditure for getting the cards reprinted correctly1 If it were the fault of the press, the pre!iS would have to rect1y the same.", "canonical_name": "Pralie . Peseyie"}}, {"text": "Pra!ie Peseyie", "label": "OTHER_PERSON", "start_char": 12634, "end_char": 12648, "source": "ner", "metadata": {"in_sentence": "On the other hand,· 1f thi: blame ftll on Pra!ie Peseyie he would have to bear the brunt .", "canonical_name": "Pralie . Peseyie"}}, {"text": "Pra1ie Peseyie", "label": "WITNESS", "start_char": 12778, "end_char": 12792, "source": "ner", "metadata": {"in_sentence": "not sent to the appellant shows that the fault was of the Witness Pra1ie Peseyie."}}, {"text": "Peseyie", "label": "WITNESS", "start_char": 13153, "end_char": 13160, "source": "ner", "metadata": {"in_sentence": "the eviden~.- We cannot help\n\n~!>serving tha~ both the apa, nt and Pi:ali6 Peseyie gave evidence 111 a very str111ghtforward and truthful manner."}}, {"text": "Zubra", "label": "GPE", "start_char": 14221, "end_char": 14226, "source": "ner", "metadata": {"in_sentence": "200 in cash to Dolhoutha Gaonbura of Zubra :i; nd one bag of sugar for entertainment of electors attending a function at Zubra on 25 J anuary, 1969."}}, {"text": "25 J anuary, 1969", "label": "DATE", "start_char": 14314, "end_char": 14331, "source": "ner", "metadata": {"in_sentence": "200 in cash to Dolhoutha Gaonbura of Zubra :i; nd one bag of sugar for entertainment of electors attending a function at Zubra on 25 J anuary, 1969."}}, {"text": "27 January, 1969", "label": "DATE", "start_char": 14366, "end_char": 14382, "source": "ner", "metadata": {"in_sentence": "Paragraph l (f) alleges that on 27 January, 1969 a women's meeting was held at Daklane when it was announced that a procession would be taken out on 1 February, 1969."}}, {"text": "Daklane", "label": "GPE", "start_char": 14413, "end_char": 14420, "source": "ner", "metadata": {"in_sentence": "Paragraph l (f) alleges that on 27 January, 1969 a women's meeting was held at Daklane when it was announced that a procession would be taken out on 1 February, 1969."}}, {"text": "Pedugei", "label": "GPE", "start_char": 14866, "end_char": 14873, "source": "ner", "metadata": {"in_sentence": "Paragraph 1 (j) alleges that on 27 January, 1969 the appellant and his wife and some other persons came to the village Pedugei in\n\nconnection with the election and held a meeting where the appellarrt and his wife promised 8 bundles of corrugated iron sheets for the women of Kiruphema with the object of inducing diem to vote for the appellant and corrugated iron sheets were later on brought from Dimapur by a truck belonging to Mizielhouto and divided amongst three groups of people."}}, {"text": "Kiruphema", "label": "GPE", "start_char": 15022, "end_char": 15031, "source": "ner", "metadata": {"in_sentence": "Paragraph 1 (j) alleges that on 27 January, 1969 the appellant and his wife and some other persons came to the village Pedugei in\n\nconnection with the election and held a meeting where the appellarrt and his wife promised 8 bundles of corrugated iron sheets for the women of Kiruphema with the object of inducing diem to vote for the appellant and corrugated iron sheets were later on brought from Dimapur by a truck belonging to Mizielhouto and divided amongst three groups of people."}}, {"text": "Dimapur", "label": "GPE", "start_char": 15145, "end_char": 15152, "source": "ner", "metadata": {"in_sentence": "Paragraph 1 (j) alleges that on 27 January, 1969 the appellant and his wife and some other persons came to the village Pedugei in\n\nconnection with the election and held a meeting where the appellarrt and his wife promised 8 bundles of corrugated iron sheets for the women of Kiruphema with the object of inducing diem to vote for the appellant and corrugated iron sheets were later on brought from Dimapur by a truck belonging to Mizielhouto and divided amongst three groups of people."}}, {"text": "Mizielhouto", "label": "OTHER_PERSON", "start_char": 15177, "end_char": 15188, "source": "ner", "metadata": {"in_sentence": "Paragraph 1 (j) alleges that on 27 January, 1969 the appellant and his wife and some other persons came to the village Pedugei in\n\nconnection with the election and held a meeting where the appellarrt and his wife promised 8 bundles of corrugated iron sheets for the women of Kiruphema with the object of inducing diem to vote for the appellant and corrugated iron sheets were later on brought from Dimapur by a truck belonging to Mizielhouto and divided amongst three groups of people."}}, {"text": "Dolhoutha y Virtue of the powers under the Act ad the Rules irrespective of any consideration as to the rights of the true owner Or the occupier __ who could make a claim to compensation.\n\nTherefore, possession of Government by requisition under rule 75-A cannot enure for the 1i>enefit of the person who was in possession before, for lhe pmpose of enabling such person to acquire a prescriptjve title. f669 E-F; 670 B-Dl\n\nKaran Singh v. Bakar Ali Khan, 9 I.A. 99, applied.\n\nBoi>ett v. South Eastern Railway Co. [1882] 9 Q.B. 424 and Dagdu v.\n\nKa/u, 22 Bombay 733, explained.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2394 of 1966.\n\nAppeal by special leave from the judgment and decree dated June 26, 1964 of the Calcutta High Court in Appeal from Appellate Decree No. 1011 of 1962.\n\n S. V. Gupte and D. N. Mukherjee, for the appellants ..\n\n' ,\n\nBislum Narain and P. K. Ghosh, for respondents Nos. 1, 2(c), 2(d), 2(f) and 2(g).\n\nThe Judgment of the Court was delivered by.\n\nMitter, J. The main question in this appeal is, whether the defendants-appellants perfected their title to the property in respect of which partition was claimed by the plaintifls by adverse possession for the prescriptive period of twelve years or more.\n\nThe relevant facts are as follows. The parties are all descendants of one Durgadas Mukherjee who died many years back, leaving six sons and inter alia the property which is the subject ..\n\nC matter of this litigation, recorded as Dag No. 444 Khatian No. 72 in Mauja Barasat, District 24 Parganas during the last Cadastral survey. Of the two plaintiffs the first Saradindu is a great grandson of the said Durgadas Mukherjee of the branch of the youngest son, his co-plaintill' being a grandson in another branch.\n\nThe defendants belong to other branches of the said family. The D first plaintiff based his title on several conveyances from other members of the family as also purchase at an execution sale of\n\na fractional interest of the members of the branch of Bama Charan, the second son of Durgadas. The second plaintill' claims by inheritance. Tue property consists of . 34 acres together with two structures th\\lreon which are quite separate from each other. One E portion of the structures i.e. that to the east, popularly known as Bamacharan Babu's Bati is a fairly commodious building with a separate municipal number. The other structure in the western portion known as Baitakhana Bati was and is admittedly the-joint\n\nproperty of the descendants of Durgadas with a municipal number of itS own. The plaintill's claim that the land and the two buildings are joint property while the contesting defendants, some of F whom are appellants before this Court, claim exclusive title to the said eastern building with the land on which it stands. The case of the appellants was that the eastern structure was constructed by Bama Charan with his own money and thafthe co-sharers of Bama Charan, by ekramamas, gave up their interest in the land on which the same stood. The High Court agreeing with G the finding of the first appellate court found that there was no evidence on record to show that Barna Charan had put up the said building with his own money ()r that he was the exclusive owner of the said two-storeyed building or that the other cosharers gave up their ownership of the subjacent soil and rejected the exclwiive title sought to be set up with regard thereto. This- H is a conclusion of fact which does not require furtl}er scrutiny.\n\nThe High Court also agreed with the. lower appellate court in. rejecting the story of permissive possession of the defendants over the said building set µp by the plaintiffs and came to the conclu- 13-918 Sup. C.I./71\n\nsion that \"at all material times the heirs in the line of Barna Charan including the appellants were in separate possession of the eastern two-storeyed building.\"\n\nThe point for consideration before the High Court was and before us is, whether by such exclusive possessi_on the heirs in the line of Barna Charan including the appellants acquired title by .adverse possession to the eastern portion i.e. Barna charan Babu's Bati.\n\nWith regard to the Baitakhana Bati there is no dispute about its jointness.\n\nNo question can be raised about the first plaintiffs having become a co-sharer wi1h the heirs in line of Barna Charan in the year 1941 by private treaties and the auction :purcha!; e of the shares of three of his sons in execution of an .award under a Co-operative Societies Act.\n\nBy the kobalas the nrst plaintiff acquired fractional interest in the shares of .some 0£ :the descendants of Barna Charan as also of the descendants of his hrother Shyama Charan. . In the sale certificate following the .auction purchase there is a reference to \"Dalan 3 Privy 2\" but there is no express reference to these :n the koabalas (Ex. 6 series). In the courts below the defondants-appellants contended -ihat the eastern two-storeyed building was neither intended to be nor was conveyed under Ex. 6 series kobalas aml Ex. 9(a), the sale certificate. Both the trial court and the first appellate court held that the kobalas and sale certificate were sufficiently comprehensiw so as to include all or any structures which stood on the aforesaid plot of land at the material time and that there was nothing express or implied in the kobalas to how that the twostoreyed building on the eastern side was intended to be excluded from their operation. The High Court also found that so far as the sale certificate was concerned the first plaintiff had acquired\n\n'the interest of three sons of Baba Charan.\n\nThe point as to adverse possession canvassed by 1the appellants arises in the following manner.\n\nTheir conten, tJon i~ that although the sale certificate was obtained in 1941 inasmuch as the suit for partition was filed in 1955 the requisite.period of 12 years under Art. 144 of the Limitation Act of 1908 had elapsed in the meanwhile resulting in the perfection of their title by exclusive separate possession of the property. To this the plaintiffs' rejoinder was that the two, storeyed building in the eastern wint had indisputably been in the occupation of the military authc:>rrties by requisition under the Defence of India Act and the Rules, 1939 for four years from 1942 to 1946. It was argued that there was thus a break in the claim to the prescriptive title set up and adverse possesion, if any, was limited to the period between 1946 and 1955. This was sought to be repelled by the plea that the military authorities had taken possession -of the property from\n\nthe defendants and had restored possession to them in 1946 and\n\n-'\n\nE >\n\nthat their possession was really under or on behal; f of the defendants without causing a break in the continuinty of their possession.\n\nAn attempt was made to substantiate this by reference to several documents which f-0rm part of the record. The order of requisition dated May 28, 1942 made under rule 75-A of the - Defence of India Rules issued by the Collector of the District of 24 Parganas shows that the building together with fixtures, fittings etc. was to be placed at the disposal and under the control of\n\nBrigadier Commander 36 Indian Infantry Brigasfe Barrackpore on and ; from 8-2-1942 until six months after the termination of the war unless relinquished earlier.\n\nA copy of the notice-was served on Prokash Chandra Mukherjee of Barasat des_cribed as \"the owner/ occupier\" of the said property.\n\nThe notice of an award under s. 19 of the Defence of India Act 1939 addressed to Prokash Chandra Mukherjee, another descendant of Bama Charan shows that compensaiion had been adjudged and awarded in respect -0f the property at Rs. 125. A third notice dated June 24, 1946 set out from the office of the Land Acquisition Collector addressed to Pankaj Kumar' Mukherjee and others shows tha possession of Cadastrai survey plot No. 444 Mouza Barasat. requisitioned under rule 75-A would be restored to the addressee on July 2, -1946. Ex. D, a memo .forwarding a cheque for Rs.\n\n2.100 was addressed to Prokash Chandra Mukherjee and others by way of rent for terminal compensation in respect .of_ the premises which had been requisitioned.\n\nIn our view possession by Government pr the military authorities of immovable property under rule 75-A of the Defence of India Rules 1939 cannot be said to be in the charac, ter of an\n\nagent or by virtue of any implied p¢rmission from the true owner or occupier.\n\nS. 2 of the Act of 1939 under which rules were made and in particular cl. (xxiv) of sub-s. (2) of that section empowered the authorities mentioned to make orders providing for the requisitioning of any property, movable or immovable, including the taking possession thereof and the issue of any orders in respect thereof. S. 19 (1 ) of the Act only enjoined upon the Government to pay compensation in every case of sue~ requisition and under s. 19-B(l) Government was under an obltgation, wbenever any property requisitioned nde~ any rule was to be released therefrom, to make such enquiry, if any, as was considered necessary and specify by order in writinf? te pcon to whom possession was to be given. Sub-s. (2) of this sect10n\n\nclearly shows that delivery of possession of the property to the person specified in an order under sub-s. (1) was to operate as full discharge to the Government f!om all l!abilit!es in respect of the\" property but was not to prejudice any nj!hts Ill respect thereof which ay other pc; rson might be entitled by ue process of law to enforce against' the person to whom possession of the property was given. Rule 75-A enabled the Central Government or the Provincial _Government to requisition any property, movable or immovable, subject to certain exceptions mentioned therein.\n\nThe net result of the Act and the Rules and the effect of orders of requisition and relinquishment of possession an!l/ or payment\n\nof Compensation must be taken to be that. possession was taken B by virtue of the powers under the Act and the rules irrespective of any consideration as to the rights of the tru~ owner _or the occupier who could only make a claim to compensation. It iS further clear that even if possession was taken from A but was made over to B after relinquishment, A could have no cause of action against Government if relinquishment was in terms of cl. C\n\n(2) of s. 19-B(l). In other words possession of Government was neither by permission nor in the character of an agent. I( possession under the requisition had been taken from a trespasser but had been restored to the lawful owner after' the end of the period of requisition, the trespasser could not contend that he was wrongfully deprived of possession or that the period of Government's occupation should be added to the penod of his preceding trespass to enable him to claim a prescriptive right by adverse possession.\n\nThe High Court relied on the decision of the Judicial C~ mittee of the Privy Council in Karan Singh v. Bakar Ali Khan(') in coming to the conclusion that such requisition put an end to the claim for adverse possession, if any, which might have started from an anterior date. The Judicial Committee held that possession of the defendants since 1863 when the Collector had relinquished possession was not, 12 years' possession but it was contended on behalf of the defendant that he was justified in tacking to his possession: the possession of the Collector from 1861. The Board found that pending a dispute between the parties the Collector, in order to secure the Government revenue had attached and taken possession of the property and retained possession of it from 1861 until October 1863 when in consequence of the decree of the civil court he delivered possession to the defendant and paid over to him the surplus profitS of the estate after deducting the Government revenue and expenses. As the suit was brought in the year 1874 the period of 12 years had to commence some time in 1862. The Board observed that it must be assumed that \"the Collector properly took possession for the purpose of protecting the Government revenue. It was the duty of the Coll_ectQr. whilst-in posse8sion under the attachment, to collect The rents from the ryots, and having paid the Government revenue and the expenses of collection to pay over the surplus to the real owner; If the defendant was the real owner the surplus belonged\n\n(I) 9 I.A. 99.\n\nP. c. MUKHERJEE v. s. K. MUKHERJBE (Mitter, J.) 671\n\nto him; but if, on the other hand, the infants were the right owners, then the surplus belonged to them. . . . The Coilector, by paying over the money to Karan Singh, did not give Karan Singh a title.\" Accordingly it was held that the suit was not barred by limitation .\n\nMr. Gupte on behalf of the appellants relied on Halsbury's Laws of England (Third Edition, Vol. 24) Art. 484 at p. 253 in support of his contention that the exclusive possession of his client was not disturbed by the requisition. The article relied on reads :\n\n\"The mere fact that land is taken under the Lands Clauses Consolidation Ai:t, 1845, for the purposes of a public undertaking, and is not sUperfluous land, does not prevent a person, who has exclusive possession of such land for the46tatutory period, from acquiring title under the statute;\"\n\nThe decision relied on by Mr. Gupte is that of Bobett v. The South Eastern Railway Co. (I).\n\nIn our view neither the above passage nor this judgment helps the appellants in any way. One of the points raised in Bobett's case was, whether the plaintiff in an action of trespass and to recover possession of land could be allowed to set up a plea that inasmuch as he had been let into possession by the defendants or that he had beien in possession to the exclusion of the defendants without any tenancy at all during the time required by the Statute of Limitation for the acquisition of a prescriptive title, he was absolutely entitled to the land when ousted by the defendants. It was argued on behalf of the defendants that even if the plaintiff was a tenant at will for the requisite period and in exclusiye possession of the l'and the Statute of Limitation did not apply to the case for the land in question was inalie11able by the company under s. 12 7 of the Lands Clauses Act and therefore could, by the mere !aches of its officers have vested in the plaintiff contrary to the intention of the Legislature which only allowed the company to take. possession of the land for the purposes of the undertaking and subject to the provisions of its Acts and not give it up to others. There on a consideration of s. 7 of 3 and 4 wm. 4, c. 27 and other statutory provisions Denman, J. arrived at the conclusion :\n\n\" .... that the inere fact that the property in question was land taken for the purposes of the undertakmg and not superfluous land, would not prevent the plaintiff if he had exclusive possession since 18 63, either as a\n\n(I) [1882] 9 Q.B.424.\n\nwrongdoer or as ienant at will in the first instance, from being entitled to the land by virtue of the Statute of Limitations.\"\n\nPut simply the dictum only meant that the Statute of Limitation would be applicable to possession of a trespasser notwithstanding the provisions of the Lands Clauses Act, 1845.\n\nThe question be.fore us is altogether of a different character.\n\nIf the defendants-appellants could have established that an order under r. 7 5-A of the Defence of India Rules merely enabled the. military authoritie~ to take possession of the land for the period of their need by their permission or in the character of agents. they would have probably been on firm ground. But, as already. observed by us, the nature of the order of requisition under r. 75-A is altogether different and such posS>ssiori cannot enure for the benefit of the person who was jn possession before for the purpose of acquisition of a prescriptive title.\n\nThe only other decision to which our attention was drawn is that of Dagdu v. Kalu(1). In this case it was found that the plaintiff had been admjttedly out of possession of the lands since 1881 and -the defendant had been in adverse possession of them from that time until the date of suit October 2, 1895, with the exception of a period of three years during which period he had been dispossessed by one Barsu who wrongly alleged that l:e was a donee of the plaintiffs. On that allegation the donee obtained ppssession of the land under the decree of the court of first instance but it was reversed by the High Court and the land was as a reversal restored by the court to the defendant on 9th April 1895.\n\nIt was observed by the High Court that (p. 736) :\n\n\"The erroneous action of the Court of first instance cannot, we think, prejudice the defendant, or put him in a worse position that he would have occupied, had the erroneous decree not been made.\"\n\nThis decision too, in our opinion, does not help the appellants.\n\nThe possession of the defendants was disturbed by a wrong order of .the court which was ultimately putright and the court no doubt acted on the maxim that a litigant is not to be prejudiced by any wrong order of the. court.\n\nA faint attempt was made to re-agitate the question that the auction sale of 1941 did not include the eastern portion. This in our opinion is concluded by the finaing of the High Court already noted.\n\n(l) 22 Bombay 733.\n\nB. • '\n\n,,,\n\nE ~\n\nA The last point put forward was that the plaintiffs had not asked for possession in their plaint. This can be rejected summarily.\n\nThe prayers in the plaint not only include one for preliminary decree for partition but for the appointment of a commissioner for effecting partition of the property by separating. the shares of the plaintiffs from those of the defendants in the suit B property.\n\nClearly the plaintiffs were asking for demarcation of the portion of the property which should be theirs as a result of the partition. Imbedded in this prayer is a claim for possession.\n\nIn the result the appeal fails and is dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 51, "entities": [{"text": "PROKASH ~HANDRA MUKHERJEE & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "PROKASH ~HANDRA MUKHERJEE & ORS", "offset_not_found": false}}, {"text": "SARADINDU KUMAR MUKHERJEE & ORS", "label": "RESPONDENT", "start_char": 34, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "SARADINDU KUMAR MUKHERJEE & ORS", "offset_not_found": false}}, {"text": "February 4, 1971", "label": "DATE", "start_char": 68, "end_char": 84, "source": "ner", "metadata": {"in_sentence": "February 4, 1971\n\n(G. K. MITTER AND A. N. RAY, JJ.]"}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 87, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER*", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 104, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "Defence of India Act, 1939", "label": "STATUTE", "start_char": 121, "end_char": 147, "source": "regex", "metadata": {}}, {"text": "art. 144", "label": "PROVISION", "start_char": 921, "end_char": 929, "source": "regex", "metadata": {"linked_statute_text": "The property was in the occupation of military authorities by requisition under the Defence of India Act, 1939", "statute": "The property was in the occupation of military authorities by requisition under the Defence of India Act, 1939"}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 933, "end_char": 953, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 2143, "end_char": 2171, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 2357, "end_char": 2368, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and D. N. Mukherjee, for the appellants ..\n\n' ,\n\nBislum Narain and P. K. Ghosh, for respondents Nos."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 2373, "end_char": 2388, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and D. N. Mukherjee, for the appellants ..\n\n' ,\n\nBislum Narain and P. K. Ghosh, for respondents Nos."}}, {"text": "Bislum Narain", "label": "LAWYER", "start_char": 2418, "end_char": 2431, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and D. N. Mukherjee, for the appellants ..\n\n' ,\n\nBislum Narain and P. K. Ghosh, for respondents Nos."}}, {"text": "P. K. Ghosh", "label": "LAWYER", "start_char": 2436, "end_char": 2447, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and D. N. Mukherjee, for the appellants ..\n\n' ,\n\nBislum Narain and P. K. Ghosh, for respondents Nos."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 2546, "end_char": 2552, "source": "ner", "metadata": {"in_sentence": "Mitter, J. The main question in this appeal is, whether the defendants-appellants perfected their title to the property in respect of which partition was claimed by the plaintifls by adverse possession for the prescriptive period of twelve years or more."}}, {"text": "Durgadas Mukherjee", "label": "OTHER_PERSON", "start_char": 2876, "end_char": 2894, "source": "ner", "metadata": {"in_sentence": "The parties are all descendants of one Durgadas Mukherjee who died many years back, leaving six sons and inter alia the property which is the subject ..\n\nC matter of this litigation, recorded as Dag No."}}, {"text": "Parganas", "label": "GPE", "start_char": 3089, "end_char": 3097, "source": "ner", "metadata": {"in_sentence": "72 in Mauja Barasat, District 24 Parganas during the last Cadastral survey."}}, {"text": "Saradindu", "label": "PETITIONER", "start_char": 3164, "end_char": 3173, "source": "ner", "metadata": {"in_sentence": "Of the two plaintiffs the first Saradindu is a great grandson of the said Durgadas Mukherjee of the branch of the youngest son, his co-plaintill' being a grandson in another branch."}}, {"text": "Bama Charan", "label": "OTHER_PERSON", "start_char": 3565, "end_char": 3576, "source": "ner", "metadata": {"in_sentence": "The D first plaintiff based his title on several conveyances from other members of the family as also purchase at an execution sale of\n\na fractional interest of the members of the branch of Bama Charan, the second son of Durgadas.", "canonical_name": "Barna Charan"}}, {"text": "Durgadas", "label": "OTHER_PERSON", "start_char": 3596, "end_char": 3604, "source": "ner", "metadata": {"in_sentence": "The D first plaintiff based his title on several conveyances from other members of the family as also purchase at an execution sale of\n\na fractional interest of the members of the branch of Bama Charan, the second son of Durgadas."}}, {"text": "Barna Charan", "label": "OTHER_PERSON", "start_char": 4700, "end_char": 4712, "source": "ner", "metadata": {"in_sentence": "The High Court agreeing with G the finding of the first appellate court found that there was no evidence on record to show that Barna Charan had put up the said building with his own money ()r that he was the exclusive owner of the said two-storeyed building or that the other cosharers gave up their ownership of the subjacent soil and rejected the exclwiive title sought to be set up with regard thereto.", "canonical_name": "Barna Charan"}}, {"text": "Baitakhana Bati", "label": "RESPONDENT", "start_char": 5722, "end_char": 5737, "source": "ner", "metadata": {"in_sentence": "With regard to the Baitakhana Bati there is no dispute about its jointness."}}, {"text": "Co-operative Societies Act", "label": "STATUTE", "start_char": 6032, "end_char": 6058, "source": "regex", "metadata": {}}, {"text": "Shyama Charan", "label": "OTHER_PERSON", "start_char": 6225, "end_char": 6238, "source": "ner", "metadata": {"in_sentence": "By the kobalas the nrst plaintiff acquired fractional interest in the shares of .some 0£ :the descendants of Barna Charan as also of the descendants of his hrother Shyama Charan. ."}}, {"text": "Baba Charan", "label": "OTHER_PERSON", "start_char": 7154, "end_char": 7165, "source": "ner", "metadata": {"in_sentence": "The High Court also found that so far as the sale certificate was concerned the first plaintiff had acquired\n\n'the interest of three sons of Baba Charan.", "canonical_name": "Barna Charan"}}, {"text": "Art. 144", "label": "PROVISION", "start_char": 7435, "end_char": 7443, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 7451, "end_char": 7465, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Defence of India Act and the Rules, 1939", "label": "STATUTE", "start_char": 7781, "end_char": 7821, "source": "regex", "metadata": {}}, {"text": "May 28, 1942", "label": "DATE", "start_char": 8489, "end_char": 8501, "source": "ner", "metadata": {"in_sentence": "The order of requisition dated May 28, 1942 made under rule 75-A of the - Defence of India Rules issued by the Collector of the District of 24 Parganas shows that the building together with fixtures, fittings etc."}}, {"text": "Defence of India Rules", "label": "STATUTE", "start_char": 8532, "end_char": 8554, "source": "regex", "metadata": {}}, {"text": "8-2-1942", "label": "DATE", "start_char": 8805, "end_char": 8813, "source": "ner", "metadata": {"in_sentence": "was to be placed at the disposal and under the control of\n\nBrigadier Commander 36 Indian Infantry Brigasfe Barrackpore on and ; from 8-2-1942 until six months after the termination of the war unless relinquished earlier."}}, {"text": "Prokash Chandra Mukherjee", "label": "PETITIONER", "start_char": 8929, "end_char": 8954, "source": "ner", "metadata": {"in_sentence": "A copy of the notice-was served on Prokash Chandra Mukherjee of Barasat des_cribed as \"the owner/ occupier\" of the said property.", "canonical_name": "PROKASH ~HANDRA MUKHERJEE & ORS"}}, {"text": "s. 19", "label": "PROVISION", "start_char": 9054, "end_char": 9059, "source": "regex", "metadata": {"linked_statute_text": "Defence of India Rules", "statute": "Defence of India Rules"}}, {"text": "Defence of India Act 1939", "label": "STATUTE", "start_char": 9067, "end_char": 9092, "source": "regex", "metadata": {}}, {"text": "June 24, 1946", "label": "DATE", "start_char": 9282, "end_char": 9295, "source": "ner", "metadata": {"in_sentence": "A third notice dated June 24, 1946 set out from the office of the Land Acquisition Collector addressed to Pankaj Kumar' Mukherjee and others shows tha possession of Cadastrai survey plot No."}}, {"text": "Pankaj Kumar' Mukherjee", "label": "OTHER_PERSON", "start_char": 9367, "end_char": 9390, "source": "ner", "metadata": {"in_sentence": "A third notice dated June 24, 1946 set out from the office of the Land Acquisition Collector addressed to Pankaj Kumar' Mukherjee and others shows tha possession of Cadastrai survey plot No."}}, {"text": "July 2, -1946", "label": "DATE", "start_char": 9539, "end_char": 9552, "source": "ner", "metadata": {"in_sentence": "requisitioned under rule 75-A would be restored to the addressee on July 2, -1946."}}, {"text": "Defence of India Rules 1939", "label": "STATUTE", "start_char": 9869, "end_char": 9896, "source": "regex", "metadata": {}}, {"text": "S. 2", "label": "PROVISION", "start_char": 10023, "end_char": 10027, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules 1939", "statute": "the Defence of India Rules 1939"}}, {"text": "S. 19", "label": "PROVISION", "start_char": 10345, "end_char": 10350, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules 1939", "statute": "the Defence of India Rules 1939"}}, {"text": "s. 19", "label": "PROVISION", "start_char": 10465, "end_char": 10470, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules 1939", "statute": "the Defence of India Rules 1939"}}, {"text": "Central Government", "label": "ORG", "start_char": 11184, "end_char": 11202, "source": "ner", "metadata": {"in_sentence": "Rule 75-A enabled the Central Government or the Provincial _Government to requisition any property, movable or immovable, subject to certain exceptions mentioned therein."}}, {"text": "s. 19", "label": "PROVISION", "start_char": 11918, "end_char": 11923, "source": "regex", "metadata": {"statute": null}}, {"text": "Karan Singh", "label": "OTHER_PERSON", "start_char": 14179, "end_char": 14190, "source": "ner", "metadata": {"in_sentence": "The Coilector, by paying over the money to Karan Singh, did not give Karan Singh a title.\""}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 14301, "end_char": 14306, "source": "ner", "metadata": {"in_sentence": "Mr. Gupte on behalf of the appellants relied on Halsbury's Laws of England (Third Edition, Vol."}}, {"text": "Art. 484", "label": "PROVISION", "start_char": 14397, "end_char": 14405, "source": "regex", "metadata": {"statute": null}}, {"text": "Bobett", "label": "OTHER_PERSON", "start_char": 15060, "end_char": 15066, "source": "ner", "metadata": {"in_sentence": "One of the points raised in Bobett's case was, whether the plaintiff in an action of trespass and to recover possession of land could be allowed to set up a plea that inasmuch as he had been let into possession by the defendants or that he had beien in possession to the exclusion of the defendants without any tenancy at all during the time required by the Statute of Limitation for the acquisition of a prescriptive title, he was absolutely entitled to the land when ousted by the defendants."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 15798, "end_char": 15803, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 16160, "end_char": 16164, "source": "regex", "metadata": {"statute": null}}, {"text": "Denman", "label": "JUDGE", "start_char": 16220, "end_char": 16226, "source": "ner", "metadata": {"in_sentence": "4, c. 27 and other statutory provisions Denman, J. arrived at the conclusion :\n\n\" .... that the inere fact that the property in question was land taken for the purposes of the undertakmg and not superfluous land, would not prevent the plaintiff if he had exclusive possession since 18 63, either as a\n\n(I) [1882] 9 Q.B.424."}}, {"text": "October 2, 1895", "label": "DATE", "start_char": 17735, "end_char": 17750, "source": "ner", "metadata": {"in_sentence": "In this case it was found that the plaintiff had been admjttedly out of possession of the lands since 1881 and -the defendant had been in adverse possession of them from that time until the date of suit October 2, 1895, with the exception of a period of three years during which period he had been dispossessed by one Barsu who wrongly alleged that l:e was a donee of the plaintiffs."}}, {"text": "Barsu", "label": "OTHER_PERSON", "start_char": 17850, "end_char": 17855, "source": "ner", "metadata": {"in_sentence": "In this case it was found that the plaintiff had been admjttedly out of possession of the lands since 1881 and -the defendant had been in adverse possession of them from that time until the date of suit October 2, 1895, with the exception of a period of three years during which period he had been dispossessed by one Barsu who wrongly alleged that l:e was a donee of the plaintiffs."}}]} {"document_id": "1971_3_674_679_EN", "year": 1971, "text": "HAZARA SINGH & ORS .\n\n...\n\nSTATE OF PUNJAB\n\nFebruary 4, 1971\n\n[K. S. HEGDE AND A. N. GROVER, JJ.]\n\n!..dian Penal Code, ss. 307, 146, 148 and 349-Miscreants firing shots <>n p:Jlice party in darkness-No evidence that shots , were fired in direction\n\nof members of police party--Offence of attempt to' murder could not be said to be made out-Firing of such shots is not use of force as defined in .s. 349--0ffenders even though more than five do not commit \"riot within meaning of s. 146-Cannot be held guilty of offence under s. 148.\n\nEvidence-Excessive similarity between evidence of two witnesses-.- lnference of tutoring can be drawn specially when the witnesses are clearly not independent.\n\nThe six appellants we're challenged by a police party when they were proceeding towards Pakistan territory with contraband goods.\n\nTwo of them, H and B, had fire-arms with which they fired shots. No member of the police party was injured. There was darkness except for: a tempo- 'rary illumination created by the firing of two shots from a light pistol.\n\nThe police claimed to have recognised H and B, in this light even though they lied away from the scene. The remaining f•ur persons were arrested on the spot. H and B, were arrested later and on their pointing out, two unlicensed arms were >ecovered. The Sessions Judge held\"H and 11,_ to be guilty under s. 307 of the Indian Penal Code as well as s. 2S of the.\n\nArms Act. The remaining four appellants were convicted under s. 307 read with s. 149 I.P.C. All the appellants were convicted under s. 148.\n\nThe High Court maintained the convictions of the appellants though in the case of those without fire arms it reduced the sentences. With special leave the appellants filed appeals in this Court, ·\n\nHELD : ( 1) From the evidence it was quite clear that the shots which were fired by H and B, were not fired during the few seconds there was light as a result of the light pis!()! shcts. In other words the shots were fired in complete darkness when it was not possible for any membe'r of police party to see the direction in which they were fired or the aim which was taken by H and B. It was not possible to say from this evidence that H and B fired the shots in the direction of the police party or at them and the possibility that the shots were fired in the air could not be excluded.\n\nThus the conviction under s. 307 of H and B and of the other appellants under s. 307 read with s. 149 coulo not be maintained.[678 B-D]\n\n(2) Rioting is defined by s. 146 which i>rovides that whenever force or violence is used by an unlawful assembly or any memJ>er thereof in prosecution of the common object of sucli assembly every member of such assembly is guilty of the offence of rioting. Section 349 gives the meaning -0f the word 'force'. Jn the present incident no force or violence was proved to have been used by the appellants in prosecution of the common object of the unlawful assembly of. whic~ thy wer~ members. With the . exception of the firing of the shots in a d1rectton which could not be determined, no attempt was made by any of the appellants to use any force or\n\nA violence on any member of the police party. Accordingly, the conviction of the appellants under s. 148 must also be set aside. [678 FGJ\n\n( 3) The discloure statements made by H and B in respect of fire arms recovered at their instance could not be acted upon because the two wit ne'8cs produced in this connection gave statement which by their similarity appeared to be tutored and unconvincing. These witnesses were associated with the police raids over a Jong period. The other witness was proved to be inimical to H and B. The _High Court erred in ignoring these facts.\n\nThe conviction of H and B under s. 25 of the Arms Acf could not be sustained; -{679 B-DJ\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 139 to 141of1968. e .\n\nAppeals by special leave from the judgments and orders dated January 31, 1968 of the Punjab and Haryana High Court in Criminal Appeals Nos. 653, 655 and 654 of 1967 respectively.\n\nR. L. Kohli, for the appellants (in all the appeals).\n\nHarbans Singh, for the resondent (in all the appeals).\n\nThe Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964. Hazara\n\nSingh and Hhajan Singh were also charged under s. 307, Indian Penal Code, while the other four were charged under s .• 307 read with s. 149 of the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the police party with such intention and under such circumstances that if they had thereby caused the death of any member of the police party they would have been guilty of murder.\n\nHazara Singh and Bhajan Singh were forth.er tried on a charge under s. 25 of the Indian Arms Act. 'Qie learned\n\nSession~ Judge found that all the six persOl)S were proceeding towards Pakistan in order to smuggle six bags containing 40 Kg. cardamom each.\n\nHazara Singh and Bhajan Singh were armed with a rifle and a pistol respectively and when challenged by the police party they fired shots from their weapons at the police party in their attempt to murder them in pursuance of the common object of them all and as such they were guilty of an >Offence under s. 148 of the Indian Penal Code. They were con\n\nvicted and sentenced to one year's rigorous imprisonment . on that count.\n\nHazara Singh and Bhajan Singh were found gutlty of the offence under s. 307 of the Indian Penal Code while their co-accused were found guilty of the offence under ss. 307 and 149, Indian Penal Code, and each one of them was sentenced to rigorous imprisonment for a period of five years and pa}ment of a fine of Rs. 500/. The sentences were to run concurrently.\n\nBhajan Singh and Haara Singh were further found guilty of the illegal possession of fireanns under s. 25 of the Arms Act and were sentenced to rigorous imprisonment for one year each.\n\nOn appeals to the High Court the conviction of the aforesaid persons was upheld but the !>'W1ences of Bachan Singh, J arnail Singh, Baj Singh and Balwant Singh were reduced to three years' rigorous imprisonment.\n\nAll the convicted persons have filed appeals to •this Court (Cr. As. 139-141/68) by special leave.\n\nThese shall stand disposed of by this judgment.\n\nThe prosecution story was that Inderjit Singh P.W. 1 who was posied as Deputy Superintendent of Police P.A.P. Border, Khem Karan, had received information on 31st July 1964 that a party of smugglers w0uld be smuggling some goods to Pakistan during the night.\n\nHe organised a raiding party consisting of Sub- Inspector Ajit Singh P.W. 15, Agya Ram P.W. 12, AS.Is.\n\nDarshan Sini:h. Nand Singh and Mula!41 Raj, Head Constables\n\nSurjit Singh P.W. 3, and Ajai Singh P.W. 13. The entire raiding party was divided into four groups. Each group was headed by one of the officers including Inderjit Singh D.S.P.\n\nAt about midnight the police party noticed some persons coming from the side of village Lakhna by the katcha path with some mares.\n\nThe path Jed to Pakistan. It was a moonlit night but was cloudy at that time. It is unnecessary to go into the details which will be presently noticed of how the firing of the shots took place by the accused persons and how they were identified and arrested. Four of them were taken into custody at the spot !; mt Hazara Singh and Bhajan Singh escaped on their mares.\n\nThey were arrested later and on their disclosure a rifle and a revolver were recovered.\n\nNo one was injured and although some empry cartridges were found but no attempt was made to find the bullets which are alleged to have been fired by the party of the appellants.\n\nThe evidence of the police officers was consistent and we may only refer to the deposition of Inderjit Singh D.S.P. who appeared as P.W. I According to him when the culprits were at a distance of 25 to 30 karams (One karam is equal to 5\n\nfeet) he alerted members of the police party to be on their\n\nuard and direoted Sub-Inspector Ajit .Singh to challenge the culprits and inform them that the police party was holding its positions and they should stop proceeding further.\n\nAjit Singh accordingly challenged the culprits. Thereupon the leader of the party fired a shot at the police party. Inderjit Singh then ordered Sub-Inspector Agya Ram to fire a light pistol so that there might be light and it might be possible to identify the culprits.\n\nAgya Ram fired a shot and in the light that emerg.w the leader of the party was identified as Hazara Singh appellam: who was riding a mare and who had a rifle in his hand. He was followed by Bhajan Singh or Harbhajan Singh who also was riding a mare and had a loaded bag and was armed with pistol. He was followed by the other four on foot.\n\nThese persons then shouted to their companions Hazara Singh and Bhajan Singh that they should open fire on the police party.\n\nThereupon Hazara Singh and Bhajan Singh started firing shots fr@m their respective weapons ..\n\nSub-Inspector Ajit Singh ordered the p@lice party to open fire in defence.\n\nFour Head Constables fired two &11, ots each from their rifles at the culji>rits. At this stage Agya Ram fired another light pistol shot. Hazara Singh and Bhajan Singh ran away on their mares throwing away the bags. The other four persons were found lying down on the ground.\n\nThere can be no manner of doubt that if Hazara Singh and Bhajan Singh fired hots at the police party and even though no one was injured the appellants would be guilty of the offences with which they w-re charged.\n\nThe real question is whether it had been proved beyond doubt that the shots were fired at the police party.\n\nThere could be two possibilities in such a situation, one could be of the shots being fired in the direction of the police party or taking aim at them and the other could be of the shots being fired in the air or in some other direction and not in the direction of the police \"Party merely to create confusion for the; purpose of running away.\n\nOn the evidence of Inderjit Singh P.W. 1 himself it was a moonlit night but owing to the weather being. cloucly it was dark and light pistol shots had to be fired by Sub-Inspector Agya Ram on two occasions in order to provide sufficient light for seeing and identifying them.\n\nThe light provided by these pistol shots admittedly lasted only for 2 or 2t seconds. If the shots which are alleged to have been fired by Hazara Singh and Bhajan Singh had been fired at the time when there was light as a result of the firing of the li.!!ht pistol shots by Sub-Inspector Agya Ram then it could be said to have been established that the Deputy Superintendent of Police and the other witnesses could have seen . in which direction the fire arms were fired by Hazara Singh and\n\nBhajan Singh and !!heir statement could have been accepted !; hat A the shots had been fired at them. But from the evidence of Inderjit Singh as also of Sub-Inspector Agya Ram who actually fired the light pistol shots which provided the light on two occas.ions it is quite clear that the shots which were fired by Hazara Smgh and Bhajan Singh vx:re not fired during the few. seconds there was light as a result of the light pistol shots of Agya Ram. In other words. the shots which are stated .to have. been fired by the aforesaid two appellan!ts were fired in complete darkness when it was not possible for any member of the police party to see the direc• tion in which they were fired or the aim which was taken by Hazara Singh and Bhajan Singh. It is not possible to say from this evidence that Hazara Singh and Bhajan Singh fired the shots\n\nin the direction of the police party or at them, and the possibility that the shots were fired in the air cannot be excluded. Thus the conviction under s. 307 of Hazara Sinh .and Bhajan Singh and\n\nof the other appellants under s. 307 read\\vith s. 149, Indian Penal Code cannot be maintained and they must be acquitted . of that charge. It is unfortunate th.at the judgment of the High Court is very sketchy and ithere is hardly any discussion or examination of all the above material facts.\n\nAs regards the conviction of the appellants under s. 148 of the Indian Penal Code we find it difficult to uphold the same.\n\nAccording to that section whoever is guilty of roiting being armed with deadly weapons or with anything which used as -a weapon of offence, is lik<>..ly to cause death, shall be punished with imprisonment of either description for a term ''!iich may extend to three years, or with fine, or with both. Rioting is defined by s. 146 which provides that whenever force or violence\n\nis used by an unlawful assembly or any member thereof in prosecution of the common object of such assembly every member F of such assembly is guilty of the offence of rioting.\n\nSection 349 gives the meaning of the word \"force\". The learned counsel for the Stare has not been able to show how any force or violence is proved to have been used by the appellants in prosecution of the common ob.iect of the un!awfµl assembly of which they were members. With the execption of the firing of the shots in a direction which cannot be determined no attemnt was made by any of the appellants to use any force or violence on any member of the police party. Consequently the conviction of the appellants under s. 148 must also be set aside.\n\nAs regards t}le conviction of Hazara Singh and. Bhajan Singh H under s. 25 of the Indian Arms Act it is most unfortunate that the witnesses who were produced with regard to the disclosure statements made by them and the recoveries effected at their\n\ninstance are of such a type that their evidence could never have been believed by any court. Lal Singh P.W. and Karnail Singh P. W. admitted that 'they had been joining in the police raids and had been appearing as witnesses for the police for the last 15 years.\n\nApart from that the statements made by them were so similar particularly with regard to t)le manner in which they happened to join the investigation that their whole evidence looks tutored and unconvincing. P.W.11 Hakam Singh admitted that 1Pooran Singh was the son of his cousin Geja Singh and that he had been convicted in a case of murder and sentenced to life imprisonment. Charan Singh, uncle of the two apnts had appeared as a witness against Pooran Singh in that case.\n\nHe was obviously an inimical witness. It is again surprising that the High Court in its very sketchy judgment had made no mention of these salient facts and has contended itself by saying that there was nothing on the record to indicate that the appel. lants had been falsely implicated.\n\nThe conviction of Hazara Singh and Bhajan Singh, therefore, cannot be maintained under s. 25 of the Arms Act.\n\nIn the result the appeals are allowed and the convictions and sentences of all the appellants are hereby set aside.\n\nThe bail bonds of the appellants who were ordered to be released on bait by this Court on July 15, 1968 shall stand discharged.\n\nG.C.\n\nAppeals allowed;", "total_entities": 94, "entities": [{"text": "HAZARA SINGH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "HAZARA SINGH & ORS", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 27, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "February 4, 1971", "label": "DATE", "start_char": 44, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "...\n\nSTATE OF PUNJAB\n\nFebruary 4, 1971\n\n[K. S. HEGDE AND A. N. GROVER, JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 63, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 79, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 107, "end_char": 117, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 307, 146, 148 and 349", "label": "PROVISION", "start_char": 119, "end_char": 144, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 349", "label": "PROVISION", "start_char": 396, "end_char": 402, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 146", "label": "PROVISION", "start_char": 479, "end_char": 485, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 148", "label": "PROVISION", "start_char": 525, "end_char": 531, "source": "regex", "metadata": {"statute": null}}, {"text": "Pakistan", "label": "GPE", "start_char": 783, "end_char": 791, "source": "ner", "metadata": {"in_sentence": "The six appellants we're challenged by a police party when they were proceeding towards Pakistan territory with contraband goods."}}, {"text": "s. 307", "label": "PROVISION", "start_char": 1354, "end_char": 1360, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 1368, "end_char": 1385, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2S", "label": "PROVISION", "start_char": 1397, "end_char": 1402, "source": "regex", "metadata": {"statute": null}}, {"text": "Arms Act", "label": "STATUTE", "start_char": 1412, "end_char": 1420, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 307", "label": "PROVISION", "start_char": 1473, "end_char": 1479, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 1490, "end_char": 1496, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 1497, "end_char": 1502, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 148", "label": "PROVISION", "start_char": 1544, "end_char": 1550, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 2367, "end_char": 2373, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 2419, "end_char": 2425, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 149", "label": "PROVISION", "start_char": 2436, "end_char": 2442, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 146", "label": "PROVISION", "start_char": 2504, "end_char": 2510, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 349", "label": "PROVISION", "start_char": 2735, "end_char": 2746, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 148", "label": "PROVISION", "start_char": 3226, "end_char": 3232, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 3736, "end_char": 3741, "source": "regex", "metadata": {"statute": null}}, {"text": "R. L. Kohli", "label": "LAWYER", "start_char": 4052, "end_char": 4063, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, for the appellants (in all the appeals)."}}, {"text": "Harbans Singh", "label": "LAWYER", "start_char": 4107, "end_char": 4120, "source": "ner", "metadata": {"in_sentence": "Harbans Singh, for the resondent (in all the appeals).", "canonical_name": "Harbhajan Singh"}}, {"text": "Grover", "label": "JUDGE", "start_char": 4207, "end_char": 4213, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964."}}, {"text": "J.-Hazara Singh", "label": "JUDGE", "start_char": 4215, "end_char": 4230, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964.", "canonical_name": "HAZARA SINGH & ORS"}}, {"text": "Bachan Singh", "label": "PETITIONER", "start_char": 4245, "end_char": 4257, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964.", "canonical_name": "Bachan Singh"}}, {"text": "Jarnail Singh", "label": "OTHER_PERSON", "start_char": 4262, "end_char": 4275, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964."}}, {"text": "Bhajan Singh", "label": "PETITIONER", "start_char": 4293, "end_char": 4305, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964.", "canonical_name": "Bachan Singh"}}, {"text": "Baj Singh", "label": "OTHER_PERSON", "start_char": 4307, "end_char": 4316, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964."}}, {"text": "Balwant Singh", "label": "OTHER_PERSON", "start_char": 4321, "end_char": 4334, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964."}}, {"text": "s. 148", "label": "PROVISION", "start_char": 4352, "end_char": 4358, "source": "regex", "metadata": {"statute": null}}, {"text": "21st and 22nd July 1964", "label": "DATE", "start_char": 4665, "end_char": 4688, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964."}}, {"text": "Singh", "label": "PETITIONER", "start_char": 4698, "end_char": 4703, "source": "ner", "metadata": {"in_sentence": "Hazara\n\nSingh and Hhajan Singh were also charged under s. 307, Indian Penal Code, while the other four were charged under s .• 307 read with s. 149 of the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the police party with such intention and under such circumstances that if they had thereby caused the death of any member of the police party they would have been guilty of murder."}}, {"text": "Hhajan Singh", "label": "PETITIONER", "start_char": 4708, "end_char": 4720, "source": "ner", "metadata": {"in_sentence": "Hazara\n\nSingh and Hhajan Singh were also charged under s. 307, Indian Penal Code, while the other four were charged under s .• 307 read with s. 149 of the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the police party with such intention and under such circumstances that if they had thereby caused the death of any member of the police party they would have been guilty of murder.", "canonical_name": "Bachan Singh"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 4745, "end_char": 4751, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4753, "end_char": 4770, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 149", "label": "PROVISION", "start_char": 4831, "end_char": 4837, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Hazara Singh", "label": "PETITIONER", "start_char": 4854, "end_char": 4866, "source": "ner", "metadata": {"in_sentence": "Hazara\n\nSingh and Hhajan Singh were also charged under s. 307, Indian Penal Code, while the other four were charged under s .• 307 read with s. 149 of the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the police party with such intention and under such circumstances that if they had thereby caused the death of any member of the police party they would have been guilty of murder.", "canonical_name": "HAZARA SINGH & ORS"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 5163, "end_char": 5168, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Arms Act", "label": "STATUTE", "start_char": 5183, "end_char": 5191, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 148", "label": "PROVISION", "start_char": 5654, "end_char": 5660, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5668, "end_char": 5685, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 307", "label": "PROVISION", "start_char": 5846, "end_char": 5852, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5860, "end_char": 5877, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 307 and 149", "label": "PROVISION", "start_char": 5940, "end_char": 5955, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5957, "end_char": 5974, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Haara Singh", "label": "PETITIONER", "start_char": 6156, "end_char": 6167, "source": "ner", "metadata": {"in_sentence": "Bhajan Singh and Haara Singh were further found guilty of the illegal possession of fireanns under s. 25 of the Arms Act and were sentenced to rigorous imprisonment for one year each.", "canonical_name": "HAZARA SINGH & ORS"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 6238, "end_char": 6243, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Arms Act", "label": "STATUTE", "start_char": 6251, "end_char": 6259, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "J arnail Singh", "label": "OTHER_PERSON", "start_char": 6440, "end_char": 6454, "source": "ner", "metadata": {"in_sentence": ">'W1ences of Bachan Singh, J arnail Singh, Baj Singh and Balwant Singh were reduced to three years' rigorous imprisonment."}}, {"text": "Inderjit Singh", "label": "WITNESS", "start_char": 6717, "end_char": 6731, "source": "ner", "metadata": {"in_sentence": "The prosecution story was that Inderjit Singh P.W. 1 who was posied as Deputy Superintendent of Police P.A.P. Border, Khem Karan, had received information on 31st July 1964 that a party of smugglers w0uld be smuggling some goods to Pakistan during the night."}}, {"text": "31st July 1964", "label": "DATE", "start_char": 6844, "end_char": 6858, "source": "ner", "metadata": {"in_sentence": "The prosecution story was that Inderjit Singh P.W. 1 who was posied as Deputy Superintendent of Police P.A.P. Border, Khem Karan, had received information on 31st July 1964 that a party of smugglers w0uld be smuggling some goods to Pakistan during the night."}}, {"text": "Ajit Singh", "label": "WITNESS", "start_char": 7004, "end_char": 7014, "source": "ner", "metadata": {"in_sentence": "He organised a raiding party consisting of Sub- Inspector Ajit Singh P.W. 15, Agya Ram P.W. 12, AS.Is."}}, {"text": "Agya Ram", "label": "WITNESS", "start_char": 7024, "end_char": 7032, "source": "ner", "metadata": {"in_sentence": "He organised a raiding party consisting of Sub- Inspector Ajit Singh P.W. 15, Agya Ram P.W. 12, AS.Is."}}, {"text": "Darshan Sini", "label": "WITNESS", "start_char": 7050, "end_char": 7062, "source": "ner", "metadata": {"in_sentence": "Darshan Sini:h. Nand Singh and Mula!41 Raj, Head Constables\n\nSurjit Singh P.W. 3, and Ajai Singh P.W. 13."}}, {"text": "h. Nand Singh", "label": "WITNESS", "start_char": 7063, "end_char": 7076, "source": "ner", "metadata": {"in_sentence": "Darshan Sini:h. Nand Singh and Mula!41 Raj, Head Constables\n\nSurjit Singh P.W. 3, and Ajai Singh P.W. 13."}}, {"text": "Mula!41 Raj", "label": "WITNESS", "start_char": 7081, "end_char": 7092, "source": "ner", "metadata": {"in_sentence": "Darshan Sini:h. Nand Singh and Mula!41 Raj, Head Constables\n\nSurjit Singh P.W. 3, and Ajai Singh P.W. 13."}}, {"text": "Surjit Singh", "label": "WITNESS", "start_char": 7111, "end_char": 7123, "source": "ner", "metadata": {"in_sentence": "Darshan Sini:h. Nand Singh and Mula!41 Raj, Head Constables\n\nSurjit Singh P.W. 3, and Ajai Singh P.W. 13."}}, {"text": "Ajai Singh", "label": "WITNESS", "start_char": 7136, "end_char": 7146, "source": "ner", "metadata": {"in_sentence": "Darshan Sini:h. Nand Singh and Mula!41 Raj, Head Constables\n\nSurjit Singh P.W. 3, and Ajai Singh P.W. 13."}}, {"text": "Inderjit Singh", "label": "OTHER_PERSON", "start_char": 7266, "end_char": 7280, "source": "ner", "metadata": {"in_sentence": "Each group was headed by one of the officers including Inderjit Singh D.S.P.\n\nAt about midnight the police party noticed some persons coming from the side of village Lakhna by the katcha path with some mares."}}, {"text": "Lakhna", "label": "GPE", "start_char": 7377, "end_char": 7383, "source": "ner", "metadata": {"in_sentence": "Each group was headed by one of the officers including Inderjit Singh D.S.P.\n\nAt about midnight the police party noticed some persons coming from the side of village Lakhna by the katcha path with some mares."}}, {"text": "Ajit .Singh", "label": "LAWYER", "start_char": 8389, "end_char": 8400, "source": "ner", "metadata": {"in_sentence": "The evidence of the police officers was consistent and we may only refer to the deposition of Inderjit Singh D.S.P. who appeared as P.W. I According to him when the culprits were at a distance of 25 to 30 karams (One karam is equal to 5\n\nfeet) he alerted members of the police party to be on their\n\nuard and direoted Sub-Inspector Ajit .Singh to challenge the culprits and inform them that the police party was holding its positions and they should stop proceeding further.", "canonical_name": "Ajit .Singh"}}, {"text": "Ajit Singh", "label": "LAWYER", "start_char": 8533, "end_char": 8543, "source": "ner", "metadata": {"in_sentence": "Ajit Singh accordingly challenged the culprits.", "canonical_name": "Ajit .Singh"}}, {"text": "Agya Ram", "label": "OTHER_PERSON", "start_char": 8691, "end_char": 8699, "source": "ner", "metadata": {"in_sentence": "Inderjit Singh then ordered Sub-Inspector Agya Ram to fire a light pistol so that there might be light and it might be possible to identify the culprits."}}, {"text": "Harbhajan Singh", "label": "LAWYER", "start_char": 9011, "end_char": 9026, "source": "ner", "metadata": {"in_sentence": "He was followed by Bhajan Singh or Harbhajan Singh who also was riding a mare and had a loaded bag and was armed with pistol.", "canonical_name": "Harbhajan Singh"}}, {"text": "Hazara Smgh", "label": "PETITIONER", "start_char": 11470, "end_char": 11481, "source": "ner", "metadata": {"in_sentence": "But from the evidence of Inderjit Singh as also of Sub-Inspector Agya Ram who actually fired the light pistol shots which provided the light on two occas.ions it is quite clear that the shots which were fired by Hazara Smgh and Bhajan Singh vx:re not fired during the few.", "canonical_name": "HAZARA SINGH & ORS"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 12153, "end_char": 12159, "source": "regex", "metadata": {"statute": null}}, {"text": "Hazara Sinh", "label": "PETITIONER", "start_char": 12163, "end_char": 12174, "source": "ner", "metadata": {"in_sentence": "Thus the conviction under s. 307 of Hazara Sinh .and Bhajan Singh and\n\nof the other appellants under s. 307 read\\vith s. 149, Indian Penal Code cannot be maintained and they must be acquitted .", "canonical_name": "HAZARA SINGH & ORS"}}, {"text": "Bhajan Singh", "label": "PETITIONER", "start_char": 12180, "end_char": 12192, "source": "ner", "metadata": {"in_sentence": "Thus the conviction under s. 307 of Hazara Sinh .and Bhajan Singh and\n\nof the other appellants under s. 307 read\\vith s. 149, Indian Penal Code cannot be maintained and they must be acquitted .", "canonical_name": "Bachan Singh"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 12228, "end_char": 12234, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 12245, "end_char": 12251, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12253, "end_char": 12270, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 148", "label": "PROVISION", "start_char": 12543, "end_char": 12549, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12557, "end_char": 12574, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 146", "label": "PROVISION", "start_char": 12940, "end_char": 12946, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Section 349", "label": "PROVISION", "start_char": 13172, "end_char": 13183, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 148", "label": "PROVISION", "start_char": 13694, "end_char": 13700, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 13795, "end_char": 13800, "source": "regex", "metadata": {"statute": null}}, {"text": "Arms Act", "label": "STATUTE", "start_char": 13815, "end_char": 13823, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Lal Singh", "label": "WITNESS", "start_char": 14069, "end_char": 14078, "source": "ner", "metadata": {"in_sentence": "Lal Singh P.W. and Karnail Singh P. W. admitted that 'they had been joining in the police raids and had been appearing as witnesses for the police for the last 15 years."}}, {"text": "Karnail Singh", "label": "WITNESS", "start_char": 14088, "end_char": 14101, "source": "ner", "metadata": {"in_sentence": "Lal Singh P.W. and Karnail Singh P. W. admitted that 'they had been joining in the police raids and had been appearing as witnesses for the police for the last 15 years."}}, {"text": "Hakam Singh", "label": "WITNESS", "start_char": 14454, "end_char": 14465, "source": "ner", "metadata": {"in_sentence": "P.W.11 Hakam Singh admitted that 1Pooran Singh was the son of his cousin Geja Singh and that he had been convicted in a case of murder and sentenced to life imprisonment."}}, {"text": "1Pooran Singh", "label": "PETITIONER", "start_char": 14480, "end_char": 14493, "source": "ner", "metadata": {"in_sentence": "P.W.11 Hakam Singh admitted that 1Pooran Singh was the son of his cousin Geja Singh and that he had been convicted in a case of murder and sentenced to life imprisonment.", "canonical_name": "1Pooran Singh"}}, {"text": "Geja Singh", "label": "OTHER_PERSON", "start_char": 14520, "end_char": 14530, "source": "ner", "metadata": {"in_sentence": "P.W.11 Hakam Singh admitted that 1Pooran Singh was the son of his cousin Geja Singh and that he had been convicted in a case of murder and sentenced to life imprisonment."}}, {"text": "Charan Singh", "label": "WITNESS", "start_char": 14618, "end_char": 14630, "source": "ner", "metadata": {"in_sentence": "Charan Singh, uncle of the two apnts had appeared as a witness against Pooran Singh in that case."}}, {"text": "Pooran Singh", "label": "PETITIONER", "start_char": 14689, "end_char": 14701, "source": "ner", "metadata": {"in_sentence": "Charan Singh, uncle of the two apnts had appeared as a witness against Pooran Singh in that case.", "canonical_name": "1Pooran Singh"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 15093, "end_char": 15098, "source": "regex", "metadata": {"statute": null}}, {"text": "Arms Act", "label": "STATUTE", "start_char": 15106, "end_char": 15114, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "July 15, 1968", "label": "DATE", "start_char": 15324, "end_char": 15337, "source": "ner", "metadata": {"in_sentence": "The bail bonds of the appellants who were ordered to be released on bait by this Court on July 15, 1968 shall stand discharged."}}]} {"document_id": "1971_3_680_692_EN", "year": 1971, "text": "BIHAR STATE BOARD RELIGIOUS TRUST, PATNA v.\n\nMAHANT SRI BISESHWAR DAS\n\nFebruary 9, 1971\n\n[J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.]\n\nBihai Hindu Religious Trusts Act (I of 1951), s: 2(1)-Mutt-Pro- _perty gifAed personally to first mahant-Passing in succession from Guru to Chela-Whether public religious trust within meaning of section-Tests.\n\nGaibi Ramdasji was. the recipient of certain lands from the the Maharaja of Darbhanga and other zamindars.\n\nFrom out of the income of these lands a temple and certain residential buildinas were constructed.\n\nThe estate -came to be known as Kamlabari asth•l.\n\nGaibi ltamdasji was succeeded in the office of Mahant by his che/Q and thereafter succession to the Mahantship was froin Guru to Che/a. The respondent who was the reigning Mahant at the relevant time resisted the demand of the appellant for the production of accounts and other particulars under .the .provisions of the Biha'r Hindu Religious Trusts Act, I of 1951. The Board took out .criminal proceedings against the respondent, who thereupon filed a suit in which he claimed the astha/ and its properties to be his personal property outside the definition of religious trust. in s. 2(1) of the Act.\n\nThe trial -court decided in favour of the appellant but the High Court took a contrary view.\n\nIn appeal to this Court.\n\nHELD : ( 1) Properties of the temple being admittedly in the possession of the Mahan! ever since the time of Gaibi Ramjidas the onus of proof that the respondent mahant held them on trust for p11blic purposes of a religious or charitable character was clearly on the appeallant Board who alleged that it was so.\n\nThe trial Judge was, therefore, cleody in error in holding that the respondent mahant ought to have produced sarods and that on his failure to do so an adverse inference could be drawn vi:,., that had they been produced they would have shown that the grants to {; aibi Ramjidasji were for public purposes of religious or charitable charactor. [686 F-Gl\n\n(2) The mere fact that Mahaots of n. particular order did not marry and properties held by them is descended from Guru to Che/a was not indicative of and did not raise a presumption of such' properties being religious properties. If originally the property was acquired by a l\\fahant the fact of its descent subsequently from guru to ch•la did not also lead to the conclusion that it had lost its secular character. [687 El\n\n( 3) Evidence that Sadhus and other persons visiting the temple were given food and. shelter was not by itself indicative of the temple being \" public temple or its properties being subject to a public trust. [688 Al\n\n( 4) The mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such pulolie user as evidence of dedication depends on the circumstances ''lhich give strength to the inference that the user \\.\\:as as of right. No such evidence of any reliable kind was available to the appellant Board in the instant case. [689 DJ\n\nBIHAR RELIGIOUS TRUST V, B. DAS\n\n68 I\n\n(5) A religious mutt in northern India is generally known as cisthal, a monastic institution founded for the maintenance and spread of a parn. cular sampradaya or cult. The distinction between dedication to a temple and a mutt is that in the former case it is to a particular deity, while in tbe later case it is tl> a supericil: or a mahant.\n\nBut just as jn the case of the debutter endowment, there is both private and public endowment, so too there can be the same distinction between a private •nd public mutt.\n\nA mutt can be dedicated for the use of ascetics generally or for the ascetics\n\noi a particular section or cult, in which cue it would be a public .institution. But it is not impossible to have a private mur~ wheTe tlr~ endowment is not intended to confer beneftt upon the public .generally or even upon the memben of a particular order..\n\nExamples do occur where the founder may grant propelrty to his Spiritual preceptor and his disciples in succeuion with a view to maintaining one particular spiritual family and for perpetuation .of certain rites and ceremonies which are deemed to be conducive to the spiritual welfare of the found.;, and his family. In such cases it would be the grantor and his descendents who are' the only persons interested in seeing that the institution is kept up for their benefit. Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity in which the public or a sec tion of it is interested. Such charities appertain to a private debutter also.\n\n[690 DHI\n\nThe existence of a private mutt in which the property was given to the head of the mutt for his personal benefit only has in the past been recog.\n\nnised. In suc.h cases there is no intention on the part of the grantor to fetter the grantee with any obligation in dealing with the property granted.\n\nIn each case the court has to come to its conclusion either from the grant i(Sclf or from the circumstances of ihe case whether the grant was for the benefit of the public or a section of it i.e. an unascertained class. or for the. benefit of tb, e grantee himself or for a class of ascertained individuals.\n\nAn inference can also be dra\\vn from the usage and custom of the institution or from the mqde in which properties had been dealt with as also other established circumstances. [691 B.C]\n\n(6) The fact that idols were installed p.;, manently on a pedestal and the temple was constructed on grounds separate from the residential quar ters of the mahant could not lead to inference of dedication to the public.\n\nIn the first place such factors are also found in private temples and mutts and therefore a're not conclusive. In the second place there was th.e evidence that the mahants residential quarters were in fact, not separate from the temple premises. (691 G-H] '\n\n(7) The expresSion 'appertaining to the asthar in the deeds of gift~ made by the__, reigning mahants in favour of their nominees as successors meant things which were appurtenant to and forming part of the principal property which was the subject matter of the instrument. The expression would at best mean that the properties formed part of the asthal and were not the properties of the mahant as distinct from those of the asthal. But unless the asl'hal itself was a public trust for the religious or charitable purpose's, the properties appertaining thereto would not be properties of a public trust for religious or charitable purposes.\n\nThe use of the expression 'appertaining to the asthal', therefore, could not lead lo the conclusion that the property in question was stamped with a trust for public purposes. (692 CJ\n\nThe appeal must accordingly be dismissed.\n\nMaham Ramsaroop Das Ji v. S. P. Sahi, 1955 B.L.J.R. 88, Ma/Jant Rmsaroop Das J(v. S. P. Sahi, 1959 Supp. 2 S.C.R. 583 & Deoki Nandan\n\nv. Murlidhar, (1956] S.C.R. 756 at 761, referred to.\n\nPermanand v. Nihal Chand [1938] l.L.R .. 65 I.A. 252 Ramsaran Das v.\n\nJai Ram D\"s, A.LR. 1943 Pat 135, Babu Bhagwan Din v. Gir Har Saroop, 67 I.A. 1, Matam Nadipudi v. Board of Commissioners for Hindu Reli• gious Endowments, Madras, A.I.R. 1938 Mad. 810, Missir v. Das, [1949] 1.L.R. 28 Pat. 890 and Sri Thakurji Ramji v. Malfluro Prasad, A.I.R. 1941 Pat. 254 at 358 and Mahant Puran Atal v. Darshan Das, [1942] I.L.R. 34 All 468, distinguished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 407 of 191>7.\n\nAppeal from the judgment and decree dated March 13, 1962 C of the Patna High Court in Appeal from Original Decree No. 330 of 1958.\n\nD. Goburdhun and R. Goburdhun, for the appellant.\n\nB. P. Jha, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShela&, J.-This appeal arises from a dispute between the\n\nappe_llant~:Soard and the respondent which occurrCd when the Board tried to enforce tlie provisions of the Bihar Hindu Religious Trusts Act, 1 of 1951, in respect of the estate known as Kamla~\n\nbari asthal consisting of a te!T'ple, buildins and lands. The respondent is the current mahant claiming direct descent from the founding mahant Galbi Ramdasji in the line of successiqn from Guru to Che/a. Gaibi Ramdasji was the recipient of certain lands from the then Maharaja of Darbhanga and other zamindars. From out of the income of these lands, a temple with Shri Ram, Janki and Laxmanjl as the presiding deities thereof, and certain residen. tial buildings were constructed.\n\nLater mahants added to these properties by acquisition from out of the income of the existing properties.\n\nThe respondent-mahant r°'isted the Board's demand for production of accounts and other particulars and in conse quence the B6ard took out criminal proceedings against the respondent.\n\nThe respondent thereupon filed a suit o, f which this appeal is the outcome.\n\nIn the suit, the respondent claimed that the said asthal and its properties were his personal properties, the gifts of lands having originally been made personally to the founding mahant,. an4l\n\nthereafter, to the mahants succeeding him, and that therefore, the properties were not religious trusts as defined by s. 2 (1 ) of\n\n~_,,, Act. That sub-section defines a 'religious trust' to mean ' ariy,.express or constructive trust created or existing for any pur- Y ~\n\n.~·:::.:.;- _;\n\nllutAll 11.ELIG!OUS TRUST v. II. DAS (Shelat, ).) 68 3\n\n'A pose recognised by Hindu Law to be religious, piou_s or charitable but shall not include a trust created accordmg to Sikh reugion ()I purely tor the benefit of the Sikh community and a pnvate endowment created for the worship oi the family. idol in which the public are not interested\". The Board took the stand $at the asthat and the properties belonging to it were not the personal properties of B the manant or his preoecessors, that the gifts to them were not. personal gifts but to the asthal, tI!-at the fact that members of the public had, without any let or hindrance, been usmg the temple for darshan and worship, the fact that festivals were celebrated at which members of the public gave offerings, the practice of feeding of sadhU$ and pilgrims, all went to indicate that the asthal was a c public trust in which the members of the public had an interest.\n\nBoth sides led considerable amount oi. evidence, both oral and documentary. The oral evidence consisted of the testimony of witnesses, some of whom deposed, on the one hand, that the members of ~~ public had been coming to the temple without any obstruction on the patt of the• mahant, and some others, on the D other hand, that on certain occasions some of the members of the public had actually been turned away from the temple. Witnesses also deposed to fact of. festivals having 'been celebrated when members of the public were allowed and placed offerings, of sadhu.i: and pilgrims having n fed an(i given shelter, thus showing the user of the temple by .tlle public and the asthal having E disbursed the income of its properties towards religious and charitable purposc:s.\n\nSome of the witnesses examined by the Board were - even prepared to depose that on occasions certain members of the public had exercised some sortof control over the mahant's management of these properties. The oral evi83.\n\nI • i\n\nRIBAR RT'.T.J conclusion either from the grant itself or from the circumstances o:\n\nthe case whether the grant was for the benefit of the public or a section of it, i.e., an unscertained class, or for the benefit of the grantee himself or for a class of ascertained individuals. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties have been dealt with as also other established circumstances.\n\nPuran Atal's case(\") has no application in the present case because there is no evidence such as there was regarding the user of the properties for the maintenance of a particular class of ascetics, nor are'. R90.\n\n(4) [1956) S.CR. 756 at 761.\n\nLastly, reference was made to some of the deeds of gifts made .by the reigning mahant is favour of their nominees as successors where the properties were described as appertaining to the asthal.\n\nAssuming that the scribes of these documents used the expression 'appertaining to the asthal' in the sense in which such expression is sometimes used in the deeds of conveyance, the expression .means things which are appurtenant to and forming part of the principal p.roperty which is the subject matter of the instrument. (see Stroud's Judicial Dictionary, (3rd Ed.), Vol. I. 177). The expression 'appertaining to the asthal' in these deeds, therefore, would at best mean that the properties formed part of the asthal and are not the properties of the mahant as distiinct fl.om those of the asthal. (see Sri Thakutji Ramji v. Mathura Prasad(1) But unless the asthal itself is a public trust for religious or charitable purposes, the properties appeartaining thereto would not be properties of a public trust for religious or charitable purposes.\n\nTh~ use _9f the expression 'appertaining to the asthal', therefore, cannot lead to the conclusion that the properties in question were stamped with a trust for public purposes.\n\nThese were all the conteLtions urged before us. In our view, the appellant-Board failed ta establish that the proportion in suit fell within the ambit of the Act .and he respondent-mahant was subject to its proWisions. The High Court accordingly was right in reversing the Trial Court's judgment and decreeing the respondent's suit. Consequently, the appeal is dismissed with costs.\n\nG.C.\n\nAppeal disrriisseJ.\n\n(I) A.l.R. 1941 Pat. 354, at 358.\n\n..;.-", "total_entities": 42, "entities": [{"text": "BIHAR STATE BOARD RELIGIOUS TRUST, PATNA", "label": "PETITIONER", "start_char": 0, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "BIHAR STATE BOARD RELIGIOUS TRUST, PATNA", "offset_not_found": false}}, {"text": "MAHANT SRI BISESHWAR DAS", "label": "RESPONDENT", "start_char": 45, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "MAHANT SRI BISESHWAR DAS", "offset_not_found": false}}, {"text": "February 9, 1971", "label": "DATE", "start_char": 71, "end_char": 87, "source": "ner", "metadata": {"in_sentence": "BIHAR STATE BOARD RELIGIOUS TRUST, PATNA v.\n\nMAHANT SRI BISESHWAR DAS\n\nFebruary 9, 1971\n\n[J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.]"}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 93, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "Bihai Hindu Religious Trusts Act", "label": "STATUTE", "start_char": 133, "end_char": 165, "source": "regex", "metadata": {}}, {"text": "Mahant", "label": "OTHER_PERSON", "start_char": 650, "end_char": 656, "source": "ner", "metadata": {"in_sentence": "Gaibi ltamdasji was succeeded in the office of Mahant by his che/Q and thereafter succession to the Mahantship was froin Guru to Che/a. The respondent who was the reigning Mahant at the relevant time resisted the demand of the appellant for the production of accounts and other particulars under .the .provisions of the Biha'r Hindu Religious Trusts Act, I of 1951.", "canonical_name": "Mahant Rc"}}, {"text": "Hindu Religious Trusts Act", "label": "STATUTE", "start_char": 930, "end_char": 956, "source": "regex", "metadata": {}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 1185, "end_char": 1192, "source": "regex", "metadata": {"linked_statute_text": "Hindu Religious Trusts Act", "statute": "Hindu Religious Trusts Act"}}, {"text": "Gaibi Ramjidas", "label": "OTHER_PERSON", "start_char": 1435, "end_char": 1449, "source": "ner", "metadata": {"in_sentence": "ever since the time of Gaibi Ramjidas the onus of proof that the respondent mahant held them on trust for p11blic purposes of a religious or charitable character was clearly on the appeallant Board who alleged that it was so.", "canonical_name": "Gaibi Ramjidas"}}, {"text": "India", "label": "GPE", "start_char": 3128, "end_char": 3133, "source": "ner", "metadata": {"in_sentence": "689 DJ\n\nBIHAR RELIGIOUS TRUST V, B. DAS\n\n68 I\n\n(5) A religious mutt in northern India is generally known as cisthal, a monastic institution founded for the maintenance and spread of a parn."}}, {"text": "Deoki Nandan", "label": "OTHER_PERSON", "start_char": 6914, "end_char": 6926, "source": "ner", "metadata": {"in_sentence": "2 S.C.R. 583 & Deoki Nandan\n\nv. Murlidhar, (1956] S.C.R. 756 at 761, referred to."}}, {"text": "D. Goburdhun", "label": "LAWYER", "start_char": 7624, "end_char": 7636, "source": "ner", "metadata": {"in_sentence": "D. Goburdhun and R. Goburdhun, for the appellant.", "canonical_name": "D. Goburdhun"}}, {"text": "R. Goburdhun", "label": "LAWYER", "start_char": 7641, "end_char": 7653, "source": "ner", "metadata": {"in_sentence": "D. Goburdhun and R. Goburdhun, for the appellant.", "canonical_name": "D. Goburdhun"}}, {"text": "B. P. Jha", "label": "LAWYER", "start_char": 7675, "end_char": 7684, "source": "ner", "metadata": {"in_sentence": "B. P. Jha, for the respondent."}}, {"text": "Shela", "label": "JUDGE", "start_char": 7751, "end_char": 7756, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShela&, J.-This appeal arises from a dispute between the\n\nappe_llant~:Soard and the respondent which occurrCd when the Board tried to enforce tlie provisions of the Bihar Hindu Religious Trusts Act, 1 of 1951, in respect of the estate known as Kamla~\n\nbari asthal consisting of a te!T'ple, buildins and lands."}}, {"text": "Darbhanga", "label": "GPE", "start_char": 8284, "end_char": 8293, "source": "ner", "metadata": {"in_sentence": "The respondent is the current mahant claiming direct descent from the founding mahant Galbi Ramdasji in the line of successiqn from Guru to Che/a. Gaibi Ramdasji was the recipient of certain lands from the then Maharaja of Darbhanga and other zamindars."}}, {"text": "Ram", "label": "OTHER_PERSON", "start_char": 8373, "end_char": 8376, "source": "ner", "metadata": {"in_sentence": "From out of the income of these lands, a temple with Shri Ram, Janki and Laxmanjl as the presiding deities thereof, and certain residen."}}, {"text": "Janki", "label": "OTHER_PERSON", "start_char": 8378, "end_char": 8383, "source": "ner", "metadata": {"in_sentence": "From out of the income of these lands, a temple with Shri Ram, Janki and Laxmanjl as the presiding deities thereof, and certain residen."}}, {"text": "Laxmanjl", "label": "OTHER_PERSON", "start_char": 8388, "end_char": 8396, "source": "ner", "metadata": {"in_sentence": "From out of the income of these lands, a temple with Shri Ram, Janki and Laxmanjl as the presiding deities thereof, and certain residen."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9168, "end_char": 9172, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Bihar", "label": "ORG", "start_char": 11766, "end_char": 11780, "source": "ner", "metadata": {"in_sentence": "The G Board o d1e gove;; iecl by that section. If a particular owner did not want to avail himself of the benefit of the section, there was no bar created by it to his waiving or giving up or abandoning the advantage and no question of pnlicy, or public policy is involved.\n\nTherefore, the performance of the agreement fa the present caae would not entail the transgression of, any law and the agreement was not void under s. 23 of the Indian Contract Act. [696 C; 6<)7 DE; 698 A-CJ\n\nNemlnath Appayya Hanumannavar v. Jamboorao Sateppa Kocherl, A.I.R. (1966) Mys, 154, approved.\n\nVita Food Products Incorporated v. Unus Co. Ltd. (in Liquldatio11),\n\n(1939) A.C. 277 at 293, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 18 of 1968.\n\nAp~ by special leav~ from the judgment and, order dated April 14, 1967 of the Allahabad High Coun in Second Appeal No. 307 of 1965.\n\n[1971]3 S.C.R.\n\nV. M. Tarkunde; Umlila Kapoor and R. K. Khanna, for the' A appellant. '\n\nS. V. Gupte and M. Iii Goswami, for the respondent.\n\nThe Judgment of the ourt was delivered by\n\nGrover, J. This is an appeal by specilj]. leave from a judgment of the Allahabad High Court and involves the question whether the appellant, who was the tenant, was entitled to the benefit of s. 3 of U.P. (Temporary) Control of Rent and Eviction Act, 194 7, hereinafter called the \"Act\".\n\nThe facts are not in dispute.\n\nThe appellant had been occupying a shop in Mathura oelonging to the respondent from a very\n\nlbng time at a monthly rental of Rs. 18.37. In 1962 the respondent wanted to construct rooms on the upper storey of the shop for his own residence.\n\nThisl construction could possibly be made only if the appellant vacated the shop for some period. On June 4, 1962, the appellant and the respondent entered into an agreement.. After reciting the. ab6ve facts it was agreed that the shop would be vacated by thel ppellant on the condition that as soon as the required construction had been completed he would resume possession of the shop. ' At this stage the following clauses of the agreement may be set out.\n\n\"1. On this day the second party has withdrawn his possession from\n\n1 the shop bearing No. 1/2C, situate at Tilakdwar, and !fas given the same to the first party.\n\n2. The first patty shall get the shop constructed within thirty days and would then hand over the possession of the sanie to the second party.\n\n3. At present a. sum of Rs. 18-6-0 per mensem, which includes house tax and water tax, is being paid by the second party to the first party as rent.\n\nAfter the c0nstruction of' the shop, the first part}' shall be entitled to get the. sine amount as rent from the second party.\n\nAll the sti6ns of the U.P. Rent Control and Eviction Act shall be fully applicable to .this house. The first party shall in no case be entitled to derive benefits from it as the property built after 1-1-SL\"\n\nAfter the construction had been made and the appellant had resumed his possession , of the shop the appellant offered rent to\n\nthe respondent but the latter did not accept the same. Ultimately H he 'deposited the rent frbm April 1, 1962 to July 31, 1963 in court under s. 7 C of the Act. The respondent served a notice dated April 20, 1963 apparently under the provisions of the\n\nH '-\n\nLACHOO v. RADHEY SHYAM (Grover, J.) 695\n\nTransfer of Property Act purporting to terminate the tenancy of the appellant.\n\nThis was followed by a suit which the respondent filed for ejectment of the appellant and for arrears of rent, damages etc.\n\nThe Munsif dismissed the suit holding that the appellant was entitled to the protection conferred by s. 3 of the Act which was applicable.\n\nThe District Judge, on appeal, took the contrary view and decreed the suit. The High Court affim1ed the judgme!J.t of the District Judge.\n\nIt was held, inter-a/ia, that the respondent was entitled to rely on s. 1-A of the Act and the appellant could not be given the benefit of s. 3.\n\nNow there can be no manner of doubt that the tenancy between the appellant and the respondent was governed by the provisions of the Act prior to the reconstruction of the premises.\n\nIt appears to have been accepted that when the respondent made the re-construction after the agreement mentioned above in 196~ the buildings came to be constructed within the terms of s. 1-A of the Act.\n\nThat section s~, y5' that nothing in the Act shall apply to any building or part of a building which was under. erection or was constructed on or after January 1, 1951.\n\nIt will have to be decided whether it was open to the respondent 'to give up the benefit of this provision or waive it by means of an agreement of the nature which was entered into between the appellant and the respondent in June 1962.\n\nAccording to the preamble on the cessation of the applicability of sub-rule 2 of rule 81 of the Defence of India Rules after September 30, 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide for the continqance during a limited period of powers to control the letting and the rent of accommodation and to prevent the eviction of tenants therefrom.\n\nSection 3 imposed restrictions on eviction.\n\nNo suit could be filed in any civil court against the tenant for his eviction from any accommodation except on one or more of the grounds mentioned in sub-s. ( 1) of that section without the permission of the District Magistrate or of . the Commissioner to whom a revision lay against the order of the District Magistrate.\n\nSectioP 5 contained provisions relating to control of rent.\n\nThe ether provisions of the Act need not be noticed.\n\nIt has never been disputed that the Act was -enacted for affording protection to the tenants against eviction except in the manner provided by the Act. It was also meant to regulate the le!tting of accommodatibn, fixing of rent etc., the provisions relating to which were all intended to confer benefits on the tenants against unreasonable and capricious demands of the landlords. At the same time it appears that the legislature was conscious of the fact that the Act might retard and slacken the pace of construction of new uild ings because the la.'1.dlords would naturally be reluctant to invest\n\n[1971] 3 S.C.R\n\nmoney in properties the letting of which would be governed by the stringent provisions of the Act.\n\nIt was for that purpose that the saving provision in s. 1-A seems to have been inserted.\n\nThe essential question that has to be resolved is whether S. 1-A was merely in the nature of an exemption in favour of the landlords, with regard to the buildings constructed after January 1, 1951 and conferred a benefit ort them which they could give up or waive by agreement or contractual arrangement and whether the consideration or object of\n\n1 such an agreement would not be lawful within the meaning of s. 23 of the Indian Contract Act.\n\nThe general principle\n\n1is that every one has a right ; to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.\n\nThus the maxim which sanction the nonobservance of the statutory provision is cuilibet licat renuntitire juri pro se introducto_ (See Maxwell on Interp!etation of Statutes, Eleventh Edition, pages 375 & 376.) If there is any express prohibition against contracting out of a statute in it then no question can arise of apy one entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Ad: is intended to have a more extensive operation as a matter of public policy. In Halsbury's Laws of England, Volume 8, Third Edition, it is stated in paragraph 248 at page 143 : '\n\n\"As a general e, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, -can contract himself out of the Act, unless! it can be shown that such an agreement is in the circumstances of the particular case contrary to public wlicy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void.\"\n\nIn the footnote it is pointed out that there are many statutory pro- G visions expressed to apply \"notwithstanding any agreement to the contrary\", and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of covenant (Law of Property Act, 1925). Section 23 of the Indian Contract Act provides :\n\n\"The consideration. or object of an agreement ii.\n\nH lawful, unless-- 1\n\nit is forbidden by law; or\n\nI.ACHOO v. RADHEY SHYAM (Grover, J.)\n\nis of such a nature that, if pennitted, it would defeat the provisions of any law; or is fraudulent; or\n\ninvolves or implies injury to the person or property of another; or\n\nthe Court regards it as immoral, or opposed to public policy.\n\nIn each of these cases, the consideration or object of an agreement is said to be unlawful.\n\nEvery agreement of which the object or consideration is unlawful is void.\"\n\nC It has never been the case of the respondent that the consideration or object of the agreement which was entered into in June 1963 was forbidden by law.\n\nReliance has been placed mainly on the next part of the section, namely, that it is of such a nature that it would defeat the provision of any law and in the present case it would be s. 1-A of the Act. ).\n\nNow s. 1-A does not employ language containing a prohibition against or impose any restriction on a landlord and a tenant entering into an agreement that they would not be governed by that section.\n\nWe concur with the view expressed in Neminath Appayya Hanumannavar v. Jamboorao Satappa Kocheri(') that the words \"if permitted it would defeat the provisions of any law\" in s. 23 of the Contract Act defer to perfonnance of a:t agreement which necessarily entails the transgression of the provisions of any law.\n\nWhat makes an agreement, which is otherwise legal, void is that its performance is impossible except by disobedience of law.\n\nClearly no question of illegality can arise unless the performance of the unlawful act was necessarily the effect of an agreement.\n\nThe following observations of Lord Wright in Vita Food Products Incorporated v. Unus Company\n\nLtd.(~) (in Liquidation) are noteworthy in this connection :\n\n\"Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a widr sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds.\"\n\nWe. are unable to hold that the perfonnance of the agreement which was entred inte> between the parties in the present case would involve an illegal or unlawful act.\n\nIn our judgment s. 1-A.\n\n(I) AJ.R [1966] Mysore 154.\n\n(2) [1939] A.C. 277, 293.\n\n-was meant for the benefit of owners of buildings which were under\n\nerection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his. waiving or giving up or abandoning the advantage or the benefit c9ntemplated by the section. No question of policy, much less public policy, was involved and such a benefit or advantage could alway.:1 be waived. That is what was done in the present case and we are unable to agreei with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of s. 23 of the Contract Act.\n\nIn the result the appeal is .allowed, the judgment of the High Court is set aside and that of the trial court restored. The appel tant will be entitled to his costs in this court. ·\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 50, "entities": [{"text": "LACHOO MAL", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "LACHOO MAL", "offset_not_found": false}}, {"text": "RADHEY SHYAM", "label": "RESPONDENT", "start_char": 15, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "RADHEY SHYAM", "offset_not_found": false}}, {"text": "February 10, 1971", "label": "DATE", "start_char": 29, "end_char": 46, "source": "ner", "metadata": {"in_sentence": "LACHOO MAL v.\n\nRADHEY SHYAM\n\nFebruary 10, 1971\n\n[K. S. HEGDE AND A. N. GROVER, JJ.}"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 49, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 65, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Temporary Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 90, "end_char": 138, "source": "regex", "metadata": {}}, {"text": "Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 633, "end_char": 671, "source": "regex", "metadata": {}}, {"text": "st January, 1951", "label": "DATE", "start_char": 1115, "end_char": 1131, "source": "ner", "metadata": {"in_sentence": "st January, 1951, and that the agreement was unlawful within the meaning of s. 23 of the lndian Contract Act, 1872."}}, {"text": "s. 23", "label": "PROVISION", "start_char": 1191, "end_char": 1196, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "Contract Act, 1872", "label": "STATUTE", "start_char": 1211, "end_char": 1229, "source": "regex", "metadata": {}}, {"text": "s. 23", "label": "PROVISION", "start_char": 2090, "end_char": 2095, "source": "regex", "metadata": {"linked_statute_text": "Contract Act, 1872", "statute": "Contract Act, 1872"}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 2103, "end_char": 2122, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "V. M. Tarkunde", "label": "PETITIONER", "start_char": 2563, "end_char": 2577, "source": "ner", "metadata": {"in_sentence": "[1971]3 S.C.R.\n\nV. M. Tarkunde; Umlila Kapoor and R. K. Khanna, for the' A appellant. '"}}, {"text": "Umlila Kapoor", "label": "LAWYER", "start_char": 2579, "end_char": 2592, "source": "ner", "metadata": {"in_sentence": "[1971]3 S.C.R.\n\nV. M. Tarkunde; Umlila Kapoor and R. K. Khanna, for the' A appellant. '"}}, {"text": "R. K. Khanna", "label": "LAWYER", "start_char": 2597, "end_char": 2609, "source": "ner", "metadata": {"in_sentence": "[1971]3 S.C.R.\n\nV. M. Tarkunde; Umlila Kapoor and R. K. Khanna, for the' A appellant. '"}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 2636, "end_char": 2647, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and M. Iii Goswami, for the respondent."}}, {"text": "M. Iii Goswami", "label": "LAWYER", "start_char": 2652, "end_char": 2666, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and M. Iii Goswami, for the respondent."}}, {"text": "Grover", "label": "JUDGE", "start_char": 2732, "end_char": 2738, "source": "ner", "metadata": {"in_sentence": "The Judgment of the ourt was delivered by\n\nGrover, J. This is an appeal by specilj]."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 2803, "end_char": 2823, "source": "ner", "metadata": {"in_sentence": "leave from a judgment of the Allahabad High Court and involves the question whether the appellant, who was the tenant, was entitled to the benefit of s. 3 of U.P. (Temporary) Control of Rent and Eviction Act, 194 7, hereinafter called the \"Act\"."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2924, "end_char": 2928, "source": "regex", "metadata": {"statute": null}}, {"text": "Control of Rent and Eviction Act", "label": "STATUTE", "start_char": 2949, "end_char": 2981, "source": "regex", "metadata": {}}, {"text": "Mathura", "label": "GPE", "start_char": 3095, "end_char": 3102, "source": "ner", "metadata": {"in_sentence": "The appellant had been occupying a shop in Mathura oelonging to the respondent from a very\n\nlbng time at a monthly rental of Rs."}}, {"text": "June 4, 1962", "label": "DATE", "start_char": 3394, "end_char": 3406, "source": "ner", "metadata": {"in_sentence": "On June 4, 1962, the appellant and the respondent entered into an agreement.. After reciting the."}}, {"text": "Tilakdwar", "label": "GPE", "start_char": 3861, "end_char": 3870, "source": "ner", "metadata": {"in_sentence": "1/2C, situate at Tilakdwar, and !"}}, {"text": "Rent Control and Eviction Act", "label": "STATUTE", "start_char": 4366, "end_char": 4395, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 4816, "end_char": 4820, "source": "regex", "metadata": {"linked_statute_text": "Rent Control and Eviction Act", "statute": "Rent Control and Eviction Act"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 4974, "end_char": 4998, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5280, "end_char": 5284, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 5527, "end_char": 5531, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5597, "end_char": 5601, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 5970, "end_char": 5974, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "January 1, 1951", "label": "DATE", "start_char": 6142, "end_char": 6157, "source": "ner", "metadata": {"in_sentence": "erection or was constructed on or after January 1, 1951."}}, {"text": "September 30, 1946", "label": "DATE", "start_char": 6522, "end_char": 6540, "source": "ner", "metadata": {"in_sentence": "According to the preamble on the cessation of the applicability of sub-rule 2 of rule 81 of the Defence of India Rules after September 30, 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide for the continqance during a limited period of powers to control the letting and the rent of accommodation and to prevent the eviction of tenants therefrom."}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 6624, "end_char": 6637, "source": "ner", "metadata": {"in_sentence": "According to the preamble on the cessation of the applicability of sub-rule 2 of rule 81 of the Defence of India Rules after September 30, 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide for the continqance during a limited period of powers to control the letting and the rent of accommodation and to prevent the eviction of tenants therefrom."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 6807, "end_char": 6816, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 8061, "end_char": 8065, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 1", "label": "PROVISION", "start_char": 8156, "end_char": 8160, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 8508, "end_char": 8513, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 8521, "end_char": 8540, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "England", "label": "GPE", "start_char": 9380, "end_char": 9387, "source": "ner", "metadata": {"in_sentence": "In Halsbury's Laws of England, Volume 8, Third Edition, it is stated in paragraph 248 at page 143 : '\n\n\"As a general e, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, -can contract himself out of the Act, unless!"}}, {"text": "Parliament", "label": "ORG", "start_char": 9577, "end_char": 9587, "source": "ner", "metadata": {"in_sentence": "In Halsbury's Laws of England, Volume 8, Third Edition, it is stated in paragraph 248 at page 143 : '\n\n\"As a general e, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, -can contract himself out of the Act, unless!"}}, {"text": "Law of Property Act, 1925", "label": "STATUTE", "start_char": 10254, "end_char": 10279, "source": "regex", "metadata": {}}, {"text": "Section 23", "label": "PROVISION", "start_char": 10282, "end_char": 10292, "source": "regex", "metadata": {"linked_statute_text": "Law of Property Act, 1925", "statute": "Law of Property Act, 1925"}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 10300, "end_char": 10319, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 1", "label": "PROVISION", "start_char": 11216, "end_char": 11220, "source": "regex", "metadata": {"linked_statute_text": "Law of Property Act, 1925", "statute": "Law of Property Act, 1925"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 11243, "end_char": 11247, "source": "regex", "metadata": {"linked_statute_text": "Law of Property Act, 1925", "statute": "Law of Property Act, 1925"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 11612, "end_char": 11617, "source": "regex", "metadata": {"statute": null}}, {"text": "Wright", "label": "OTHER_PERSON", "start_char": 12044, "end_char": 12050, "source": "ner", "metadata": {"in_sentence": "The following observations of Lord Wright in Vita Food Products Incorporated v. Unus Company\n\nLtd.(~) (in Liquidation) are noteworthy in this connection :\n\n\"Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a widr sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds.\""}}, {"text": "s. 1", "label": "PROVISION", "start_char": 12708, "end_char": 12712, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 13440, "end_char": 13445, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_699_710_EN", "year": 1971, "text": "STATE OF A~DHRA PRADESH & ORS.\n\nLAVU NARENDRANATH & ORS. ETC.\n\nFebruary 11, 1971\n\n[S. M. SIKRI, C.J., G. K. MITTER, K. S. HEGDE AND\n\nP. JAGANMOHAN REDDY, JJ.]\n\nConsUtution oj India, 1950, Arts. 21 162 and Entry 6G, Ll51 I, 'Sl:h •.\n\nVII-Executive Power of State-Scope of-Entrance test tiFTnedical colleges-If affects personal liberty-Scope of Entry 66-1/ affects Govt.'s power to hold rm.\n\nAndhra University Act (2 of 1926), \"· 23 and 33-Government If obliged to make selection according to qualifying examination.\n\nEducation-Medical Colleges-Admission to according to Entrancir /est held by Government-If substitute of addition to qualifyinf? test.\n\nIn the Andhra area of the State of. Andhra Pradesh there are four medical collegts run by the State Government.\n\nIn July 1970, the .Government prescribed for the first time an Entrance test for admission to the colleges and also prescribed the standard of eligibility for the test.\n\nA large number of candidates. far in excess of the seats available took the test. Some of the candidates, who were unsuccessful, filed writ peti tions challenging the validity of the test prescribed and the method of selection for admission. They contended that, (I) under the provisions of the Andhra University Act, 1926 it was only the Academic Council of the Andbra University th; lt was competent to prescribe qualifications for admission into all degree courses, includirig the M.B.B.S. course in Govt. Colleges; and it was not for the Government to substitute itself for the statutory _, Academic oody and test the academic standards of candidates; (2) , the holding of the Entrance Test and making selections on the basis thereof in disregard of the marks obtained at the public exantination held by the' University epcroached upon the central subject listed in Entry 66 of List I of VU. Schedule to the Constitution; nnd, (3) the test interfered with the personal liberty of the candidates violating Art. 21 . ef the Constitution. The Hiah Court allowed the petitions. In appeal to thi• Court, ·\n\nHELD : ( 1) Under Art. 162 of the Constitution the executive power of a State extends to the matters with resp.ect to which the Leaislature !>f the Stata has power . to make la~. If there is no leaislatlen cover. ma the field the State qovernment would un.doubtedly be competent to\n\nprtscribe a test itself IC) screen the best candidates. (703 FHl\n\n. The Andhra. Univers!ty Act, 1926, prescribes the minimum. qualification for enfrv mto a higher course of study.\n\nA candidate bas not an unq1:1alified. right .to a seat in a medical college merely because he has obmed his'!P, r marks tha_n another candidate at the qualifying examination. Secllons 23 and 33 of the Act do not make it incumbent upon the Government to make their selection in accordance with the marks obtained bv. applicant-candidates at the qualifying examination.. . Since\n\nall the apphcants could not be admitted, the Government which ran the colleges; had a right to make a selection out of the Jrge number of.\n\ncandidates and for this purpose they could prescribe a test of their own which was not against any law and prescribe the minimum number of marks at the qualifyini: examination for eligibility tu the Entrance test.\n\nMerely because the Government supplemented the eligibility rule by a writt.11 test in slihjects with which the candidates were already familiar, their action cannot be impeached nor was there anything unfair in the test prescribed.\n\nThe test was not in substitution of the University Examination but something 11dditional to that; and the mere fact that the test was introduced for the first time would be no ground for holding that the method of selection was invalid [704 D-F; 708 F-G; 709 A-R, Fl\n\n(2) The test prescribed by the Government in no way militates against the power of Parliament under Entry 66 of List I of the Vil Schedule to the <:; onstitution The Entry gives Parliament power to make laws for\n\nlayin&. down bow stanards in an institutino for higher education are to be determined and how they can be co-ordinated.\n\nIt has no relation to a teat prescribed by Government or by a universiy for selection of a number of students from out of a large number applying for admission to a particular course of stllily. [705 B-D]\n\n(3) The test in no way, affects the personal liberty of the candidates $CCUJed under Art. 21 of the Constitution.\n\nEverybody, subject to the eligibility prescribed by the University was at liberty to apply for ad mission to the medical colleges. The number of scats being limited every candidate could not expect !(> be admitted. The deprivation of personal liberty, if any, in the matter of admission to a medical college was according to procedure established by law. [709 H; 710 A-BJ\n\nR. Chltralekha v. Sate ofi Mysore, Ll964] 6 S.C.R. 368, Rajendran v.\n\nState of Madras, [1968] 2 .S.C.R. '786 and Chitra Ghosh & Anr. v. Union of l11dla, (1970) 1 S.C.R. 413, followed.\n\nSpottswood v. Sharpe, '1~ L.Ed. 884 and Stawant ingh v. Pa.Bport Ofjicer, L1967] 3 S.C.R. 525, 540, referred oo.\n\nCIVIL APPELLATE Jujt!SDICTION: Civil Appeals Nos. 2161-A and 2161-B of 1970.\n\nAppeals by special leave from the judgment and order dated September 18, 1970 of the Andhra Pradesh High Court in Writ Appeals Nos. 587 and 588 of 1970.\n\nS. V. Gupte and P. Phrameshwara Rao, for the appellants (in both the appeals).\n\nP.A. Chaudhury and~. Rajendra Chowdhary, for respondents Nos. 1 to 7 (in C.A. No. 2161-A of 1970) and respondent No. 1 (in C.A. No. 2161-B of i970).\n\nThe Judgment of the Court was delivered by\n\nI K Mitter, J.\n\nThese two appeals are from a comon jud~ ment of the High Court of Andhra Pradesh rendered m two wnt appeals from the judgment and order of a learned Judge of the\n\nsame court dismissing the applications filed by the appellants in tl!e High Court and some others under Art. 226 of the Constitution.\n\nThe central question in these appeals is, whether the Entrance Test prescribed under notification o! the Government dated July 23, 1970 for selection of candidates in the four Medical Colleges run by the State in the Andhra area is justified in law.\n\nThe facts are as follows.\n\nIn the Andhra area of the State there are four Medical Colleges run by the Government and the total number of sats available for admission in the first year Integrated M.B., B.S. course in all the four colleges is 550. The State Government has been issuing rules every year after the publication of the results of the H.S.C. or S.S.L.C. Board of the University for selection of candidates for admission into the Medical Colleges.\n\nThe test which was prescribed in July 1970 was the first of its kin~. The test was duly held after the Additional Director of Medical and Health Services had issued a notification inviting applications from candidates for the purpose on July 31,\n\n1970.\n\nAny one desiring to enter any of these Medical Colleges had to complete and file his application in the prescribed form by August 14, 1970 and appear at the Entrance Test to be conducted by the Director of Medical and Health Services on 30th August,\n\n1970 at any of the centres indicated in the rules. There was an exemption from appearance at such examination for candidates who had taken an M.Sc. or B.Sc. Degree. The6overnment notification of 23rd July prescribed inter a1ia the following standard of eligibility : (I) Candidates possessing the minimum qualification of H.Sc. (Multipurpose),\n\nI.S.C.,\n\nP.U.C., A.I.H.S.C. or equivalent qualifications were eligible to appear for the Entrance Test provided that :\n\n(a) In the above qualifying examinations, the candidaites had ta.ken up Physical sciences and Biological sciences for study and examination.\n\n. ()>) Candidates had passed the qualifying examination m one attempt.\n\n( c) Candidates had obtained not less than 50% of the marks in Physical and Biological Sciences put together in their qualifying examination.\n\n(2) The Entrance Test was to consist of four papers ?f 50 marks each of the following subjects in two sessions :\n\n(a) The subject of Physical Sciences (Chemistry and Physics). ·\n\n702 SUPREME cOURT REPORTS\n\n[1971] 3 S.C.R.\n\n(b) The subj•ct qf Biological Sciences (Zoology and Botany).\n\n' The candidates had to appear and answer two papers i.e. Chemistry' and Physical Sciences in the morning session and the remaining two papers i.e.\n\nZoology and Botany , in the evening session.\n\nThe Entrance Test was t6, be conducted in a single day in two sessions eac)l' of two hours' duration.\n\n( 3) The standard of the test was to be comparable to the standard of qualifying examinations referred to above. ·\n\n' ( 4) The test wa~ to be partly objective and partly narrative.\n\n5,137 candidates applied for the Entrance Test out of which 4,669 were accepted for the , test. 4,331 candidates actually took the test.\n\nAs the number of :seats were limited the majority of the candidates who appeared for the test failed to secure admission.\n\nSeveral writ petitions were filed in the. Andhra Pradesh High Court challenging the validity of the Entrance Test pres- cribed and the method of selection for admission to the Medical Colleges. ·\n\nWrit.Petition No. 3859 of 1970 was filed on August 6, 1970, the main prayer being tnat the State should be directed to withdraw the notification published by the Additional. Director of Medical and Health Services with a further direction to the State to admit the _petitioners into the first year Integrated M.B., B.S.\n\ncourse on the basis of the marks which had been awarded to them in the public Examinations.\n\nReliance was placed by the petitioners on certain provisions of the Andhra University Act (II of\n\n1926) under which inter alia the Andhra University had been constituted as a body corporate with powers to provide for instructions in such branches of learning as might be considered suitable and to make provision for research and for the advancement and dissemination of knowlege, to hold examinations, to confer degrees on persons who, had pursued courses of study in the Universrty and to institute and maintain colleges and hostels, .etc. ' ' The contention of the petitioners was that it was the Academic: Council of the University which was competent to prescribe qualifications for admission intQ all degree courses in the University and it was not for the Government to substitute itself for a statutory Academic body and test academic standards of candidates seeking admission iinto the Integrated M.B .. B.S. course by the notification of the 23rd July.\n\nThis was described as an attempt to assess the merits of the candidates on academic standards different from those fixed by the University.\n\nHolding the Entrance Test and making selection on the basis thereof in disregard of the marks obtained at the public .examinations he:ld by the University was further said to constitute an encroachment upon the Central subject listed in Entry 66 of List I of the Seventh Schedule to the Constitution.\n\nBesides the above1 other grounds were also tak~, namely, that the Government oroer was discriminatory, that it was not valid for want of publication-in the official gazette, that the candidates were handicapped by reason of the fact that they did not have sufficient time to prepare themselves for the test and lastly that the test held by the Government interfered with the personal liberty of the candidates violating Art. 21 of the Constitution.\n\nThe learned trial judge dismissed the Writ Petitions. In appeal, however, the appellate Bench took a different view. 1n substance the appellate court was of opinion that although the State Government had a right to prescribe rules and lay down its own criteria for making admissions into the colleges, it could not do so in total disregard of the marks obtained by the students at the University or other public examination necessary for eligibility and they could only .do so if their action did not contravene the University Act or any other law. It was also held that the Government could hold a \"test\" in order to supplement or add to the qualifications already prescribed by the University or other educational authority for the purpose of assessing merits of candidates but they could not hold a test in substitution for the qualifying examinations, as this would be encroaching upon the jurisdiction of the universities concerned in the matter of laying doY..11 academic standards of the students.\n\nWe have therefore to examine whether the Government had a right to prescribe a test for making a selection of a number of candidates from out of the large body of applicants for admission into the first year M.B., B.S. course and whether such action of the Government contravened any provision already made by the legislature in that respect.\n\nUnder Art. 162 of the Constitution the executive power of a State extends to the matters with respect to which the legislature of a State has power to make Jaws but this is subject to the provisions of the Constitution. As the Government runs these colleges, it undoubtedly has a right and a duty to make a selection from the number of applicants applying for admission if all could not be admitted. If there was no legislation covering this field Government would undoubtedly be competent to prescribe a test itself to screen the best candidates. We have next to scrutinile the urovisions of the Andhra Universify Act relied on by the High Court to see whether the action of the Government ran counter to any of those provisions. Under s. 23\n\n[1971 J3 S.C.R.\n\n-Of the Act it was a body 'known as the Academic Council of the\n\nUniversity which had the, power by regulations of prescribing all courses of study and of determining curricula and the general control of teaching within the university and was responsible for the mainten3nce of the standards thereof.\n\nUnder sub-s. (2) (h) of the Act these powers include the power to make regulations regarding the admission bf students to the university or pi; escribing examinations to be recognised as equivalent to university examinations or the further qualifications mentioned in sub-s. (1) of s. 33 for admission to' the degree courses of the university.\n\nUnder s. 33 no student was to be eligible for admission to a course of study qualifying for admission to a post-matriculation university examination unless he had passed the examination pres- .cribed as qualifying for itdlllission to such course or an examination recognised by the Academic Council with the previous sanction of the State Government as equivalent th.ereto and possessed such further qualifications, if any, as might be prescribed.\n\nSri Venkateswara Universityi the only other University functioning in this area, was constituted under a similar statute and had almost identical provisions as th0se mentioned above.\n\n' The above provisions of law do not mak-e it incumbent upon the Government to make their selection in accordance with the marks obtained by the applicant-candidates at the qualifying examination.\n\nObtaining 50% of t!ie marks at the qualifying examinations was the fir5t hurdle to be crossed by any candidate before he could submit an application for admission into a medi cal college.\n\nThe Government which ran the colleges had the right to make a selection out of a large number of candidates and for this purpose they could prescribe! a test of their own which was not against any law.\n\nMerely because they tried to supplement the eligibility rule' by a written test in subjects with which the candidates were already familiar, their action cannot be impeached nor was there anything unfair in the test prescribed.\n\nThe test prescribed by the Govrnment must be considered in the light of a second hurdle' for the purpose of a screening to find out who of all the candidates applying should be admitted and who\n\nhould be rejected.\n\nMerely because the University had made regulations regarding tb'.e admission of students to its deree courses, it did not mean that any one who had passed the qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be entitled to admission' to such courses of study. If the number of candidates applying for such admission far exceeds the umber\n\nof seats available the University will have to make its choice out of the applicants to finli out who should be admitted and . if instead of judging the cadidates y te number ?f m_arks ?blamed by them in the qualjfymg exa1!11i:iat1on the. Un_1vers1ty thmks fit to prescribe another test for adm1ss10n no ob1ection can be taken\n\n,.-,\n\nthereto. What the University can do in the matter of admissions to the degree courses can certainly be done by the Government in the matter of admission to the M.B., B.S. cours-~.\n\nIn our view the test prescribed by the Government in no way militates against the power of Parliamefa under Entry 66 of List B I of the Seventh Schedule to the Constitution.\n\nThe said entry provides:\n\n\"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.\"\n\nThe aLove entry gives Parliament power to make laws for laying down how standards in an institution for higher education are to be determined and how they can be co-ordinated.\n\nIt has no relation to a test prescribe, d by a Government or by a University for selection of a number of students from out of a large number applying for admission to a particular course of study even if it be for higher education in any particular subject.\n\nSeveral decisions of this Court were cited at the Bar which throw some light on the subject.\n\nIn R. Chftralakha v. State of Mysore(') one of the contentions urged before this Court was that the Government of Mysore had no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the University.\n\nWhat the Government had done in that case was to appoint one common selection committee for settling admissions to the Engineering Colleges and another such committee for settling admissions to Medical Colleges.\n\nThe Government of Mysore had sent a letter to the Director of Technical Education informing him that it had been decided that 25 per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Engineering Colleges shall be fixed as interview marks; it also laid down the criteria for allotting marks in the interview.\n\nThe selection committee conver~d the total , of the marks in the opiional subjects to a maximum of 300 marks and fixed the minimum marks for interview at 75. On the basis of the marks obtained by the candidates in the examination and those obtained at the interview, selectiohs were made for admission to Enuineering. and Medica~ <; olleges.\n\nSme of the candidates whose\" applic.attons for adm1ss10n to the said collees were rejected filed petitions under Art. 226 of the Constitution in the High Court of\n\n\nMysore for quashing the orders issued by th~ Government in the matter of admission to the said colleges and for a direction that they should be admitted\n\n1 in the Colleges strictly in order of merit i.e. according to the marks obtained in the qualifying examinations.\n\nThe arguments advanced before this Court were similar to those advanced before us.\n\nReferring to s. 23 of the Mysore Univer£ity Act which g11-ve the Academic Council the power to prescribe the conditions for admission of students to the University and in exercise of Which power, the University had prescribed the percentage of marks which a student had to obtain for getting admission in me\\lical or engineering colleges it was observed by this Court :\n\n\"The order of the Government does not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a selection committee and prescribe rules for selection of students who have' the minimum qualifications prescribed by the UniverSity.\n\nThe Government runs most of the medical and engineering colleges. . . . The colleges run by the Goverqment, having regard to financial commitments ahd other relevant considerations, can only admit a specific number of students to the said colleges.\n\nThey cannot obviously admit all the applicants who have secured the\n\n1 marks prescribed by the University.\n\nIt has neeessarily\n\n1 to screen the applicants on some reasonable basis.\n\nThe aforesaid orders of the Government only prescribed criteria for making admissions to colleges from among s, udents who secured the minimum qualifying marks prescribed by the Universit'IJ.\n\nOnce it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it.\n\nThis is a power which every private owner of a college will have, and the Government which run its own colleges cannot be denied that power.\"\n\nReferring to Entry 66 in List I it was said :\n\n~1£ the impat of the State law providing for such standards on Entry 66 of List I is so heavy or devastating as to wipe out or appreciably abr!dgt~ th~ c.entral field, it may be truck down. But that 1~ a questJol! of fact to be ascertained in each case.\n\nIt 1s not possible to hold that if a State legislature made a law prescribin.g a higher percentage of marks for extra-cumcular acti-\n\nG • H\n\nvities in the matter of admission to colleges, it wo11Jd be\n\nd1ectly encroaching on the field covered by Entry 66 of List) .of the Seventh Schedule to the Constitution. If so, zt. zs. n?t d!sputed that the State Government would b.e wJthm its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law.\"\n\nWith regard to the scheme of selection in that case it was said :\n\n. \"SI? lo_ng as the order lays down a releant objective ntena and entrusts the business of selection to\n\nqualfied persons, this Coiirt cannot obviously have any say m the matter.\n\nIn this case the criteria laid down by the G?vernment are certafoly relevant in the matter of awardmg marks at the interview.\"\n\nWith respect, it seems to us that the observations above quoted are equally applicable to the case before us, the only difference being that whereas in the Mysore case marks were awarded 011 the basis of the impression created at the interview and added in -'11 certain manner •to the marks obtained at the university examination in the case before us the marks obtained at the University only make candidates eligible to appear at the written test and it is the last test which is the determining factor as to who should be admitted and who should be 'rejected.\n\nIn Rajendran v. State of Madras(') the petitioners challenged an order of the State Government by which rules were promulgated for selection of candidates for admission to a medical course.\n\nThese rules inter alia provided for selection and classification of candidates including one for awarding a maximum of 75 marks for extra-curricular activities which had been.specified uader five heads.\n\nTurning down the contention that there was no objective test laid down in the rules for the interview it was said : (p. 795)\n\n\"So far as admission is concerned, it has to be made by those who are in control of the Colleges,-in this case the Government, because the medical colleges are Government colleges affiliated to the Univetsity.\n\nIn these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qualifications.\n\nThis was what was done in these cases and therefore the selection cannot be challenged on the ground that it was not inaccordance with the University Act and the Rules framed thereunder.\"\n\n\nIn Chitra Ghosh & another v. Union of India and C!fhers(') the appellants who had passed the pre-medical examination of the Delhi University obtaining over 62 % marks were refused admission to the first year M.B., B.S. course at the Maulana Azad Medical College which was a constituent of the University of Delhi and was established by the Government of India.\n\nThe college prospectus contained certain rules relating to the admission of students which made reservations of places in the college in favour of various ca1egories of students and provided for nominations to be mad~ by the Central Government to fill some of the reservrd places.\n\nThe appellants challenged primarily the power of the Central Government to make the nominations and contended that nine students n, ominated by the Government had obtained lower marks than theirs in the pre-medical examination so that if they were to be excluded, the appellants would become entitled to be admitted in the college.\n\nRejecting this contention it was said :\n\n\"It is the Cen1ral Government which bears th~ financial burden of running the medical colleges. It is for it to lay down the criteria for eligibility.\n\nFrom the very nature of things it is not possible to throw the admission open to students from all over the country.\n\nThe Government cannot be denied the right to decide from what sources the admissions will be made.\n\nThat essentially is a question of policy and depends iter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide fai Jities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification.\" The above case is not directly in point but it at least shows that a candidate has not an unqualif..d right to seat in a medical college merely because he has obtained higher marks than another candidate at the qualifying examinMion.\n\nG Mr. Choudhury the learned advoc, ate for the respondents put before us his contentions with regard to the above in three propositions, namely,. ( l) The State has no power to trench upon the powers given to the University.\n\nThe test prescribed contravenes s. 23 of the Act. (2) Even if the matter is not covered by the Universities Act the executive cannot be allowed to usurp a Jaw-making power in prescribing a test\" ( 3) The rule . affts prejudicially the right conferred on candidates by the Umvers1ty Regulations.\n\n(1) [1970] I S.C.R. 413.\n\n. In our view there is no substance in any of the contentions as will be apparent from our conclusions noted above and the decisions of this Court bearing on this point.\n\nThe University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study.\n\nThere was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility.\n\nThe Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission : the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determining factor.\n\nMr. Choudhury faintly tried to urge other points which may be briefly noted.\n\nOne of the grounds was that some of the questions were not covered b} the curricula by the P.U.C. or the S.S.L.C. examinatisms.\n\nThis was not a ground which has any merit. If some of the questions were outside the syllabi all the candidates were at an eqnal disadvantage.\n\nAlternatively the questions might have been put to find out whether the candidate's knowledge was limited to the syllabus or whether he was sufficiently interested in the subjects so as to acquire knowledge beyond the prescribed curriculum.\n\nThe next ground urged was that the written test was in substitution of the University examination and was altogether a novel experiment, no such test having been held before.\n\nIn our view there is no substance in this contention either.\n\nThe written test was not in substitution of the University examination but it was something additional to that and the mere fact that a written test had been introduced in the year 1970 would be no ground for holding that the method of selection was invalid.\n\nFurther no complaint can be made that the notice of examination was all too short or that it was never published in the Gazette. If it was short it affected everybody equally adversely and the figures showing how many candidates had taken the test demonstrat~ v7ry\n\nG. clearly that everybody who had cared t.o s!t for the exan_i.maon had an opportunity of doing so.\n\nPubhcahon of the notification in the Gazette was not called for by any law.\n\nLastly it was urged that such test affected the peson.al liberty of the candidates secured under Art. 21 of the Conshtuhon. We fail to see how refusal of an application to enter a medical college can be said to affect one's personal liberty guaranteed under that article.\n\nEverybody, subject to the eligibili!Y _prescribed by .the University was at liberty to apply for adm1ss10n to the medical college. The number of seats being limited compared to the\n\nnumber of applicants every candidate could not except to be ad1!1itted.\n\nOnce it is held that the test is not invalid the deprivation of personal, liberty, if any, in the matter of admission to a' medical college was according to procedure established by law. 9ur 8:tten.tio, n was drawn to the case of Spottswood v. Sharpe('1) m which It was held that due process clause of the Fifth Amendment of the American Constitution prohibited racial segregation in the District of Columbia.\n\nIncidentally the court made a remark (at p. 887) :-\n\n\"Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint.\n\nLiberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper govermnental objective.\n\nSegregation in public education is not reasonably related to any proper governmental objective, and thus. it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of !heir liberty in violation of the Due Process Clause.\"\n\nThe problem before us is altogether different.\n\nIn this case everybody subject to the minimum qualification prescribed was at liberty to apply for admission. The Government objective in selecting a. number of them was certainly not improper in the circumstances of the case.\n\nLearned counsel also referred us to an observation of this Court in Satwant Singh v. Passport Officer(') that :\n\n\" 'liberty' in our Constitution bears the same comprehensive meaning as is given to the expression 'liberty' by the 5th and 14th Amendments to the U.S. Constitution and the expression 'personal liberty' in Art. 21 only excludes the ingredients of 'liberty' enshrined in Art. 19 of the Constitution.\"\n\nWe do not find it necessary to dilate on this point in view of our conclusion that even if personal liberty extends to such conduct G there has not been any deprivation thereof in violation of any procedure established by law.\n\nIn the resuit the appeals are allowed, but in the circumstances we leave the parties to bear their own costs.\n\nV.P.S. . . Appeals allowed.\n\n(!) 98 L.Ed. 884.\n\n\n918 Sup.C.I.171-20/6/72--GIPF.", "total_entities": 61, "entities": [{"text": "STATE OF A~DHRA PRADESH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH & ORS", "offset_not_found": false}}, {"text": "LAVU NARENDRANATH & ORS. ETC", "label": "RESPONDENT", "start_char": 32, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "LAVU NARENDRANATH & ORS. ETC", "offset_not_found": false}}, {"text": "February 11, 1971", "label": "DATE", "start_char": 63, "end_char": 80, "source": "ner", "metadata": {"in_sentence": "February 11, 1971\n\n[S. M. SIKRI, C.J., G. K. MITTER, K. S. HEGDE AND\n\nP. JAGANMOHAN REDDY, JJ.]"}}, {"text": "S. M. SIKRI, C.J.", "label": "JUDGE", "start_char": 83, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "G. K. 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JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "Arts. 21", "label": "PROVISION", "start_char": 188, "end_char": 196, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra University Act", "label": "STATUTE", "start_char": 390, "end_char": 411, "source": "regex", "metadata": {}}, {"text": "Andhra", "label": "GPE", "start_char": 658, "end_char": 664, "source": "ner", "metadata": {"in_sentence": "In the Andhra area of the State of."}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 687, "end_char": 701, "source": "ner", "metadata": {"in_sentence": "Andhra Pradesh there are four medical collegts run by the State Government."}}, {"text": "Andhra University Act, 1926", "label": "STATUTE", "start_char": 1229, "end_char": 1256, "source": "regex", "metadata": {}}, {"text": "Academic Council of the Andbra University", "label": "ORG", "start_char": 1273, "end_char": 1314, "source": "ner", "metadata": {"in_sentence": "They contended that, (I) under the provisions of the Andhra University Act, 1926 it was only the Academic Council of the Andbra University th; lt was competent to prescribe qualifications for admission into all degree courses, includirig the M.B.B.S. course in Govt."}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 1943, "end_char": 1950, "source": "regex", "metadata": {"linked_statute_text": "the Andhra University Act, 1926", "statute": "the Andhra University Act, 1926"}}, {"text": "Art. 162", "label": "PROVISION", "start_char": 2058, "end_char": 2066, "source": "regex", "metadata": {"linked_statute_text": "the Andhra University Act, 1926", "statute": "the Andhra University Act, 1926"}}, {"text": "Parliament", "label": "ORG", "start_char": 3821, "end_char": 3831, "source": "ner", "metadata": {"in_sentence": "The test was not in substitution of the University Examination but something 11dditional to that; and the mere fact that the test was introduced for the first time would be no ground for holding that the method of selection was invalid [704 D-F; 708 F-G; 709 A-R, Fl\n\n(2) The test prescribed by the Government in no way militates against the power of Parliament under Entry 66 of List I of the Vil Schedule to the <:; onstitution The Entry gives Parliament power to make laws for\n\nlayin&."}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 4363, "end_char": 4370, "source": "regex", "metadata": {"statute": null}}, {"text": "(1970) 1 S.C.R. 413", "label": "CASE_CITATION", "start_char": 4919, "end_char": 4938, "source": "regex", "metadata": {}}, {"text": "1967] 3 S.C.R. 525", "label": "CASE_CITATION", "start_char": 5026, "end_char": 5044, "source": "regex", "metadata": {}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 5297, "end_char": 5308, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and P. Phrameshwara Rao, for the appellants (in both the appeals)."}}, {"text": "P. Phrameshwara Rao", "label": "LAWYER", "start_char": 5313, "end_char": 5332, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and P. Phrameshwara Rao, for the appellants (in both the appeals)."}}, {"text": "P.A. Chaudhury", "label": "LAWYER", "start_char": 5377, "end_char": 5391, "source": "ner", "metadata": {"in_sentence": "P.A. Chaudhury and~. Rajendra Chowdhary, for respondents Nos."}}, {"text": "Rajendra Chowdhary", "label": "LAWYER", "start_char": 5398, "end_char": 5416, "source": "ner", "metadata": {"in_sentence": "P.A. Chaudhury and~. Rajendra Chowdhary, for respondents Nos."}}, {"text": "I K Mitter", "label": "JUDGE", "start_char": 5571, "end_char": 5581, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nI K Mitter, J.\n\nThese two appeals are from a comon jud~ ment of the High Court of Andhra Pradesh rendered m two wnt appeals from the judgment and order of a learned Judge of the\n\nsame court dismissing the applications filed by the appellants in tl!e High Court and some others under Art."}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 5639, "end_char": 5667, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nI K Mitter, J.\n\nThese two appeals are from a comon jud~ ment of the High Court of Andhra Pradesh rendered m two wnt appeals from the judgment and order of a learned Judge of the\n\nsame court dismissing the applications filed by the appellants in tl!e High Court and some others under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 5854, "end_char": 5862, "source": "regex", "metadata": {"statute": null}}, {"text": "H.S.C. or S.S.L.C. Board", "label": "ORG", "start_char": 6481, "end_char": 6505, "source": "ner", "metadata": {"in_sentence": "The State Government has been issuing rules every year after the publication of the results of the H.S.C. or S.S.L.C. Board of the University for selection of candidates for admission into the Medical Colleges."}}, {"text": "July 31,\n\n1970", "label": "DATE", "start_char": 6831, "end_char": 6845, "source": "ner", "metadata": {"in_sentence": "The test which was prescribed in July 1970 was the first of its kin~. The test was duly held after the Additional Director of Medical and Health Services had issued a notification inviting applications from candidates for the purpose on July 31,\n\n1970."}}, {"text": "30th August,\n\n1970", "label": "DATE", "start_char": 7085, "end_char": 7103, "source": "ner", "metadata": {"in_sentence": "Any one desiring to enter any of these Medical Colleges had to complete and file his application in the prescribed form by August 14, 1970 and appear at the Entrance Test to be conducted by the Director of Medical and Health Services on 30th August,\n\n1970 at any of the centres indicated in the rules."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 8989, "end_char": 9014, "source": "ner", "metadata": {"in_sentence": "Andhra Pradesh High Court challenging the validity of the Entrance Test pres- cribed and the method of selection for admission to the Medical Colleges. ·"}}, {"text": "Reliance was placed by the petitioners on certain provisions of the Andhra University Act", "label": "STATUTE", "start_char": 9558, "end_char": 9647, "source": "regex", "metadata": {}}, {"text": "Andhra University", "label": "ORG", "start_char": 9689, "end_char": 9706, "source": "ner", "metadata": {"in_sentence": "Reliance was placed by the petitioners on certain provisions of the Andhra University Act (II of\n\n1926) under which inter alia the Andhra University had been constituted as a body corporate with powers to provide for instructions in such branches of learning as might be considered suitable and to make provision for research and for the advancement and dissemination of knowlege, to hold examinations, to confer degrees on persons who, had pursued courses of study in the Universrty and to institute and maintain colleges and hostels, .etc. ' '"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 10926, "end_char": 10942, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 11385, "end_char": 11392, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 162", "label": "PROVISION", "start_char": 12771, "end_char": 12779, "source": "regex", "metadata": {"statute": null}}, {"text": "have next to scrutinile the urovisions of the Andhra Universify Act", "label": "STATUTE", "start_char": 13316, "end_char": 13383, "source": "regex", "metadata": {}}, {"text": "s. 23", "label": "PROVISION", "start_char": 13502, "end_char": 13507, "source": "regex", "metadata": {"linked_statute_text": "We have next to scrutinile the urovisions of the Andhra Universify Act", "statute": "We have next to scrutinile the urovisions of the Andhra Universify Act"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 14110, "end_char": 14115, "source": "regex", "metadata": {"linked_statute_text": "We have next to scrutinile the urovisions of the Andhra Universify Act", "statute": "We have next to scrutinile the urovisions of the Andhra Universify Act"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 14179, "end_char": 14184, "source": "regex", "metadata": {"linked_statute_text": "We have next to scrutinile the urovisions of the Andhra Universify Act", "statute": "We have next to scrutinile the urovisions of the Andhra Universify Act"}}, {"text": "Venkateswara Universityi", "label": "ORG", "start_char": 14626, "end_char": 14650, "source": "ner", "metadata": {"in_sentence": "Sri Venkateswara Universityi the only other University functioning in this area, was constituted under a similar statute and had almost identical provisions as th0se mentioned above."}}, {"text": "Parliamefa", "label": "OTHER_PERSON", "start_char": 16806, "end_char": 16816, "source": "ner", "metadata": {"in_sentence": "What the University can do in the matter of admissions to the degree courses can certainly be done by the Government in the matter of admission to the M.B., B.S. cours-~.\n\nIn our view the test prescribed by the Government in no way militates against the power of Parliamefa under Entry 66 of List B I of the Seventh Schedule to the Constitution."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 16851, "end_char": 16867, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Mysore", "label": "ORG", "start_char": 17687, "end_char": 17707, "source": "ner", "metadata": {"in_sentence": "In R. Chftralakha v. State of Mysore(') one of the contentions urged before this Court was that the Government of Mysore had no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the University."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 18956, "end_char": 18964, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 19374, "end_char": 19379, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 21588, "end_char": 21604, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi University", "label": "ORG", "start_char": 24001, "end_char": 24017, "source": "ner", "metadata": {"in_sentence": "In Chitra Ghosh & another v. Union of India and C!fhers(') the appellants who had passed the pre-medical examination of the Delhi University obtaining over 62 % marks were refused admission to the first year M.B., B.S. course at the Maulana Azad Medical College which was a constituent of the University of Delhi and was established by the Government of India."}}, {"text": "Maulana Azad Medical College", "label": "ORG", "start_char": 24110, "end_char": 24138, "source": "ner", "metadata": {"in_sentence": "In Chitra Ghosh & another v. Union of India and C!fhers(') the appellants who had passed the pre-medical examination of the Delhi University obtaining over 62 % marks were refused admission to the first year M.B., B.S. course at the Maulana Azad Medical College which was a constituent of the University of Delhi and was established by the Government of India."}}, {"text": "University of Delhi", "label": "ORG", "start_char": 24170, "end_char": 24189, "source": "ner", "metadata": {"in_sentence": "In Chitra Ghosh & another v. Union of India and C!fhers(') the appellants who had passed the pre-medical examination of the Delhi University obtaining over 62 % marks were refused admission to the first year M.B., B.S. course at the Maulana Azad Medical College which was a constituent of the University of Delhi and was established by the Government of India."}}, {"text": "Government of India", "label": "ORG", "start_char": 24217, "end_char": 24236, "source": "ner", "metadata": {"in_sentence": "In Chitra Ghosh & another v. Union of India and C!fhers(') the appellants who had passed the pre-medical examination of the Delhi University obtaining over 62 % marks were refused admission to the first year M.B., B.S. course at the Maulana Azad Medical College which was a constituent of the University of Delhi and was established by the Government of India."}}, {"text": "Central Government", "label": "ORG", "start_char": 24464, "end_char": 24482, "source": "ner", "metadata": {"in_sentence": "The college prospectus contained certain rules relating to the admission of students which made reservations of places in the college in favour of various ca1egories of students and provided for nominations to be mad~ by the Central Government to fill some of the reservrd places."}}, {"text": "Cen1ral Government", "label": "ORG", "start_char": 24906, "end_char": 24924, "source": "ner", "metadata": {"in_sentence": "Rejecting this contention it was said :\n\n\"It is the Cen1ral Government which bears th~ financial burden of running the medical colleges."}}, {"text": "Choudhury", "label": "OTHER_PERSON", "start_char": 25964, "end_char": 25973, "source": "ner", "metadata": {"in_sentence": "G Mr. Choudhury the learned advoc, ate for the respondents put before us his contentions with regard to the above in three propositions, namely,. ("}}, {"text": "s. 23", "label": "PROVISION", "start_char": 26216, "end_char": 26221, "source": "regex", "metadata": {"statute": null}}, {"text": "Even if the matter is not covered by the Universities Act", "label": "STATUTE", "start_char": 26238, "end_char": 26295, "source": "regex", "metadata": {}}, {"text": "P.U.C.", "label": "ORG", "start_char": 27513, "end_char": 27519, "source": "ner", "metadata": {"in_sentence": "One of the grounds was that some of the questions were not covered b} the curricula by the P.U.C. or the S.S.L.C. examinatisms."}}, {"text": "S.S.L.C.", "label": "ORG", "start_char": 27527, "end_char": 27535, "source": "ner", "metadata": {"in_sentence": "One of the grounds was that some of the questions were not covered b} the curricula by the P.U.C. or the S.S.L.C. examinatisms."}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 28976, "end_char": 28983, "source": "regex", "metadata": {"statute": null}}, {"text": "District of Columbia", "label": "GPE", "start_char": 29795, "end_char": 29815, "source": "ner", "metadata": {"in_sentence": "9ur 8:tten.tio, n was drawn to the case of Spottswood v. Sharpe('1) m which It was held that due process clause of the Fifth Amendment of the American Constitution prohibited racial segregation in the District of Columbia."}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 31055, "end_char": 31062, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 31119, "end_char": 31126, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_711_714_EN", "year": 1971, "text": "STATE OF KERALA & ANR. v.\n\nR. E. D'SOUZHA\n\n[S. M. SIKRI, C.J., P. JAGANMOHAN REDDY AND J. D. DUA, JJ.) February 12, 1971\n\nFactories Act, 1948, s. 2(1)-\"Worker\"-Who is-Constitution of India Article 134(1) (c)-Principles already settled by Supreme Court- Questions concerning application thereof-Whether raise issues fit for app'\"/ to Supreme Court.\n\nAfter catches of prawns made from time to time were brought to the respondent's premises, a casual and irregular group of women and girls of the locality came at their convenience to do the peeling, washing, etc. at piece-rates. There were no specified hours of work and after finishing their work, the workers would go on to do similar work at other premises in the locality.\n\nThe respondent's conviction under s. 92 of the Factories Act for, inrer alia, using his premises as a factory without obtaining registration, etc. was set aside in revision by the High Court on the view that the workers in question were not ' 1workers\" within the meaning of the Factories Act. On appeal to this Court, '\n\nHELD : The High Court had rightly decided that the workers in the present case \\vere not \"workers\" covered by s. 2 ( 1) of the Factories Act.\n\n(714 CJ\n\nDharangadhara Chemical Works Ltd. v. State of Saurashtra, A.I.R. l'f57 S.C. 264: Chintaman Rao & An'other v. The State of Madhya Pradesh, (1958] S.C.R. 1340; State of Kera/a v. V. M. Patel, [1960] K. L, J. 1524 and Birdhichand Sharma v. First Civil Judge, Nagpur, [1961] 3 S.C.R;\n\nI 61; applied.\n\nObiter :\n\nAfter this Court had laid down a test to be applied for determinin~ who were '\"workers\" within the meaning of the Factories Act, the High Court should have freated the question of principle as no longer op\"n.\n\nThe High Court had cortified the case to b& fit for appeal as it felt that the question involved is of general importance in the State. If the qucs tion of principle has been settled by this Court, the application of the principle to the facts of a particular case does not make the question a fit one for the Supreme Court within Article 134(1) (e) of the Constitution. (714 DJ\n\nCRIMINAL\n\nAPPELLATE JURISDICTION : Criminal Ap{leals Nos. 205 and 206 of 1968.\n\nAppeal from the judgment and order dated February 21, 1968 of the Kerala High Court in Criminal Revision Petitions Nos. 415 and 416 of 1967.\n\nD. P. Singh and M. R. K. Pillai, for the appellants (in both the appeals) .\n\nG: B: Pai, P. N. Tiwari, 0. C. Mathur and Bhaian Ram Rakh1am, for the respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by\n\nS~ C.J. These appeals are on certificates granted by !he High Court of Kerala. The only question in these appeals 1s whether the workmen doing work in the premises of the respondent are workers within the meaning of Sec. 2 (1) of the Factories Act,, 1948.\n\nSection 2 ( 1 ) of the Factories Act, 194 8 reads as .follows :\n\n\" 'Worker' me11ns a person employed, directly or through any agency, whether for wages or not, ill any manu!acturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process;\"\n\nThe respondent was convicted under Sec. 92 oI the Factories Act for using a building as a factory without obtaining the previous permission in writing of the Chief fuspector of Factories. for failing to apply for registration and grant of licence for the factory and for failing to maintain a muster roll of the workers employed in the factory in one case, and for failing to give attendance cards to every person employed in the factory in the other case.\n\nThe respondent was sentenced to pay a fine of Rs. 20/- in each case. He was also directed under &:. 102 of the Factories Act to rectify the defects within a specified period.\n\nThe respondent filed a Revision Petition in the High Court.\n\nThe High Court held that the work that was being carried out' in the premises of the respondent amounted to manufacturing process. This question has not been debated before us. The High Court further held that the workmen working in the premises of the respondent were not 'workers' within the meaning of Sec. 2 (1) of the Factories Act. It is this part of the decision that has been challenged in appeal by the State of Kerala.\n\nThe natrire of the work done was described in a letter produced by the prosecution. This letter is not printed on the record but the High Court summaries the document as follows :-\n\n\"This document shows that as and when catches of prawns are made, a consignment of prawns is brought to the premises in a lorry at any time of the day or the night, that the women and girls . of the locality, ho form a \"casual, heterogeneous, miscellaneous and 1rre-\n\nKERALA v. o'SOUZHA (Sikri, C./.)\n\nI gular group\", come at their convenience and do the peeling, washing etc., at piece-rates; and that there are no specified hours of work, nor is there any control by the Petitioner over the irregularity and attendance or of the nature, manner or quantum of their work. The same workers after finishing the work in the premises of the petitioner, go to other similar premises in the locality where other lorry loads of prawns are taken. In other words, if more prawns are caught at a particular time,. they are brought and distributed among several premises are brought and distributed among several premises like the Petitioner's and the local women and girls collect at the several premises and do the work at piecerates. The same workers do not go to the same premises on different occasions, and the owners of the several premises do not have any control over the manner or quantum of work these women and girls do.\n\nThe rates of remuneration naturally depend upon the quantity of prawns available, the number of women afld girls that come to do the work, the hour of the day or the night when the catches arrive, etc. Sometimes, for days no work is done in the premises.\"\n\n71;).\n\nThe High Court after referring to the decisions of this Court in Dharangadhara Chemical W arks Ltd. V.\n\nState of Saurashtra( 1), a decision under the Industrial Disputes Act, Chintaman Rao & Another V. The State of Madhya Pradesh(') 3illd State of Kerala v. V. M. Patel('), decisions under the Factories Act, held :\n\n\"It will be apparent that the women ll!ld gir1s who assemble and do the work when a catch of prawns is brought to the premises of the petitioner are not 'work ers' coming within the definition of the Factories Act.\n\nThe Petitioner does not insist as to who should do the job or how it should be done; he only wants the work to be done for the agreed remuneration without spoiling the prawns i.e. within a short time. (A quantity of prawns is taken for peeling. cteaning, washing etc. by a particular individual for a fixed remuneration, and that mdividual, with the assistance of others whom she employs, finishes the job as quickly as possible .. \"\n\nThe learned Counsel for the appellant contended that it was: erroneous on the part of the High Court to have applied the\n\n(I) A.l.R. 1957 S.C. 264\n\n(2) (1958] S.C.R. 1340\n\n(3) (1960] K.L.J. 1524\n\ndecision of this Court in Dharangadhara Chemical Works Ltd.\n\nVs. State of Saua_shtra('), a cas~ under the Industrial Disputes Ac:t, to the defimuon of 'worker' 1n the Factories Act. He fairly\n\npouted out !at another Division Bench applied the same test in a dispute ansmg under the Factories Act. (see Birdhichand Sharma v. First Civil Judge Nagpur)( 2 ). But, nevertheless, he urged that we should refer the case to a larger Bench. We see nothing wrong in the decision of this Court in Chintaman Rao &: Another v. The State of Madhya Pradesh(\").\n\nOn the contrary, we are of the opinion that the case has been rightly decided. The scheme of the Factories Act clearly, shows that the test adopted by this Court is the correct one. It would be impossible to apply many provisions of the Factories Act to the 'workers' of the type we are concrned with here if we were to hold that they were 'workers' within the definition of the Factories Act.\n\nWe are really surprised that the High Court certified this case to be a fit case far appeal to this Court. After this Court had laid down a test to be applied for determining who were 'workers' within the meaning of the Factories Act, the High Col!rt should .have treated the question of principle as no longer open. The lllgh Court had certified the case to be fit for appeal as it felt that the question involved is of general importance in the State. If the question of principle has been settled by fhis _Court, the application of the principle to the facts of a pariicular case does not make the question a fit one for the Supreme Court within Articl~\n\n134 (1 )( c) of the Constitution. In the result the appeals fail and are dismissed.\n\n'R. K. P. S.\n\nAppeals dismissed.\n\n(I) A.LR. 1957 S.C. 264\n\n(2) [1961) 3 S.C.R.161\n\n(3) [1958) S.C.R. 1340.", "total_entities": 47, "entities": [{"text": "STATE OF KERALA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA & ANR", "offset_not_found": false}}, {"text": "R. E. D'SOUZHA", "label": "RESPONDENT", "start_char": 27, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "R. E. DSOUZHA", "offset_not_found": false}}, {"text": "S. M. SIKRI, C.J.", "label": "JUDGE", "start_char": 44, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 63, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "D. DUA, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "February 12, 1971", "label": "DATE", "start_char": 103, "end_char": 120, "source": "ner", "metadata": {"in_sentence": "February 12, 1971\n\nFactories Act, 1948, s. 2(1)-\"Worker\"-Who is-Constitution of India Article 134(1) (c)-Principles already settled by Supreme Court- Questions concerning application thereof-Whether raise issues fit for app'\"/ to Supreme Court."}}, {"text": "Factories Act, 1948", "label": "STATUTE", "start_char": 122, "end_char": 141, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 143, "end_char": 150, "source": "regex", "metadata": {"linked_statute_text": "Factories Act, 1948", "statute": "Factories Act, 1948"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 167, "end_char": 188, "source": "regex", "metadata": {}}, {"text": "Article 134(1)", "label": "PROVISION", "start_char": 189, "end_char": 203, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Court-", "label": "COURT", "start_char": 238, "end_char": 252, "source": "ner", "metadata": {"in_sentence": "February 12, 1971\n\nFactories Act, 1948, s. 2(1)-\"Worker\"-Who is-Constitution of India Article 134(1) (c)-Principles already settled by Supreme Court- Questions concerning application thereof-Whether raise issues fit for app'\"/ to Supreme Court."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 333, "end_char": 346, "source": "ner", "metadata": {"in_sentence": "February 12, 1971\n\nFactories Act, 1948, s. 2(1)-\"Worker\"-Who is-Constitution of India Article 134(1) (c)-Principles already settled by Supreme Court- Questions concerning application thereof-Whether raise issues fit for app'\"/ to Supreme Court."}}, {"text": "s. 92", "label": "PROVISION", "start_char": 761, "end_char": 766, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 774, "end_char": 787, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 1006, "end_char": 1019, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2", "label": "PROVISION", "start_char": 1159, "end_char": 1163, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 1176, "end_char": 1189, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 1622, "end_char": 1635, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 134(1)", "label": "PROVISION", "start_char": 2049, "end_char": 2063, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 2244, "end_char": 2261, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and order dated February 21, 1968 of the Kerala High Court in Criminal Revision Petitions Nos."}}, {"text": "M. R. K. Pillai", "label": "LAWYER", "start_char": 2336, "end_char": 2351, "source": "ner", "metadata": {"in_sentence": "D. P. Singh and M. R. K. Pillai, for the appellants (in both the appeals) ."}}, {"text": "Pai", "label": "WITNESS", "start_char": 2403, "end_char": 2406, "source": "ner", "metadata": {"in_sentence": "G: B: Pai, P. N. Tiwari, 0."}}, {"text": "P. N. Tiwari", "label": "LAWYER", "start_char": 2408, "end_char": 2420, "source": "ner", "metadata": {"in_sentence": "G: B: Pai, P. N. Tiwari, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 2425, "end_char": 2434, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Bhaian Ram Rakh1am, for the respondent (in both the appeals)."}}, {"text": "Bhaian Ram Rakh1am", "label": "LAWYER", "start_char": 2439, "end_char": 2457, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Bhaian Ram Rakh1am, for the respondent (in both the appeals)."}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 2603, "end_char": 2623, "source": "ner", "metadata": {"in_sentence": "he High Court of Kerala."}}, {"text": "Sec. 2", "label": "PROVISION", "start_char": 2762, "end_char": 2768, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 2780, "end_char": 2793, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 2", "label": "PROVISION", "start_char": 2803, "end_char": 2812, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 2826, "end_char": 2839, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sec. 92", "label": "PROVISION", "start_char": 3253, "end_char": 3260, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 3268, "end_char": 3281, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 3787, "end_char": 3800, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sec. 2", "label": "PROVISION", "start_char": 4218, "end_char": 4224, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 4236, "end_char": 4249, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kerala", "label": "GPE", "start_char": 4334, "end_char": 4340, "source": "ner", "metadata": {"in_sentence": "It is this part of the decision that has been challenged in appeal by the State of Kerala."}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 6162, "end_char": 6185, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 6306, "end_char": 6319, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 6529, "end_char": 6542, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Dharangadhara Chemical Works Ltd.", "label": "ORG", "start_char": 7202, "end_char": 7235, "source": "ner", "metadata": {"in_sentence": "R. 1957 S.C. 264\n\n(2) (1958] S.C.R. 1340\n\n(3) (1960] K.L.J. 1524\n\ndecision of this Court in Dharangadhara Chemical Works Ltd.\n\nVs."}}, {"text": "State of Saua_shtra", "label": "RESPONDENT", "start_char": 7241, "end_char": 7260, "source": "ner", "metadata": {"in_sentence": "State of Saua_shtra('), a cas~ under the Industrial Disputes Ac:t, to the defimuon of 'worker' 1n the Factories Act."}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 7343, "end_char": 7356, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Division Bench applied the same test in a dispute ansmg under the Factories Act", "label": "STATUTE", "start_char": 7392, "end_char": 7471, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 7821, "end_char": 7834, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 7961, "end_char": 7974, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 8103, "end_char": 8116, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 8339, "end_char": 8352, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]} {"document_id": "1971_3_715_725_EN", "year": 1971, "text": "GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS & ORS.\n\nTARAK NA'IH GHOSH\n\nFebruary 12, 1971\n\n[G. K. MITTER AND A. N. RAY, JJ.]\n\nAJl India Service (Discipline and Appeal) Rules, 1955, rr. 5(2) & 7- Civll Servant-Suspension-If can be ordered in contemplation of discip/mary proceedings.\n\nSerious allegations of corruption and malpractices had been made against the respondent, a member of the Indian Police Service, serving in the State of Bihar. Inquiries made by the State Government revealed that there was a primc. facie. case made out against him. He was suspended by an order which stated that disciplinary proceedings were contemplated against the respondent.\n\nOn the question whether the suspension of a member of the service can only be ordered after definite charges have been communicated to him in terms of r. 5(2) of the All India Se1\"ices (Discipline and Appeal) Rules, 1955, or whether the Government is entitled to place him under suspension even before that stage has been reached after a preliminary jnvestigation,\n\nHELD : ( 1) The fact that in other rules of service there is specific provision for an order of suspension even when disciplinary proceedings were contemplated. does not mean that a member of the All India Service should be dealt with differently. It would not be proper to interpret the Rules, which form a self-contained Code, by reference to the provisions of other rules even if they were made by or under the authority of the President of India. [718 F-G]\n\n(2) Rule 7 expressly provides for suspension of a member 01 the service, having regard to the nature of the charges, for the purpose of disciplinary proceedings. The word 'charges' in the rule means accusations or imputations against a member of the service. If the disciplinary authority takes note of the allegation and is of the opinion after preliminary inquiries that the circumstances of the case justify further investigation to be made before definite charges can be framed it would not be improper to remove the officer from the sphere of his activity either by transfer or oy suspension inasmuch as it may be necessary to find out facts from people working under him or look into papers which are in his custody. ordinarily when serious imputations are made against the conduct of an officer, the disciplinary authorities cannot immediately draw up the charges and in some cases a considerable time may elapse before the superior authority can come to a conclusion that definite charges can be levelled against the officer.\n\nMerely because the order mentions, that the disciplinary proceedings were contemplated_ it cannot be held that the situation in the present '-ase had not reached the stage which called for an order of suspension.\n\nIn substance, disciplinary proceedings can be said to have been started when complaints about the integrity of an officer are entertained, followed by a preliminary inquiry into them culminating\n\nin the satisfac.tion of the Government that a prima facie case h,;.; been made out agamst him for the framing of charges.\n\nWhen the order of\n\nuspns1on ~self shows that he Government was of the view that such a pnnza fatie case fr launching departmental proceedings has bcn made out the fact that the i;>rder also mentions that such procecdin s were con templated makes no difference. [721 B-F; 723 G; 724 G-H; 7~5 B-C]\n\nS. Gorinda Menon v. Union o} India, [ 1967] 2 S.C.R. 566, followed.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2338 of 1968.\n\nAppeal from the judgment. and order dated March 31, 1965 of the j:>atna High Court in Misc. Judicial Case No. 1207 of 1964.\n\nJagadish Swarup, Solicitor-General and B. K. P. Sinha, for the appellants.\n\nB, C. Ghosh, P. K. Chatterjee and Rathin Das, for the! respon- -Oent.\n\nThe Judgment of the tourt was delivered by\n\nMitter, J.\n\nThe question in this appeal is, whether the order of suspension passed on the respondent on July 31, 1964 was properly struck down by the Patna High Court.\n\nThe facts are as follows.\n\nThe respondent is a member of the Indian Police Service appointed on 25th January, 1937 and at the material time he was holding the substantive railk of Deputy Superintendent of Police in Bihar.\n\nIn June 1962 he was posted at Ranchi. He was transferred to Patna and appoint- .ed as Special Officer, Political, General and Transport Department on July 23, 1964. The order of which the validity is in question ran as follows :-\n\n\"Whereas serious allegations of corruption and malpractices have been made against Shri T. N. Ghosh, I. P., Deputy Inspector General of Police, Southern Range, Ranchi;\n\nAnd whereas the said Shri T. N. Ghosh is also reported to 11ave contravened certain provisions of the All India Services (Conduct) Rules, 1954;\n\nAnd whereas the enquiries made by the Government of Bihar into these al!egatiQns have revealed that there is a primit facie .case made out against him;\n\nAnd whereas disciplinary proceedings in respect of these mat- iers are contemplated against the said Shri T. N. Ghosh;\n\nAnd whereas the Government of India, after carefully considering the available material, and having regard to the nature <>f the charges and circumstances of the case, are satisfied that it is necessary and desirable to place the said Shri T. N. Ghosh under suspension :\n\nNow, therefore, the Government of India hereby place the \\aid. Shri T. N. Ghosh, under suspension with immediate effect, until further orders, and direct that the said Shri T. N. Ghosh 'hall, during the period of suspension be paid such subsistence allowance as is admissible under the rules.\n\nBy order and in the name of the President of India.\n\nSd./- K. Sivaraj Deputy Secretary to the Government of India.\"\n\nThe respondent addressed a memorial to the Secretary to the Government of India, Ministry of Home Affairs on 24th August\n\n1964 complaining against the above order on the ground that it was not sanctioned by the rules i.e. All India Service (Conduct) Rules, 1954. In particular his grievance was that as there were only allegations against him which had not crystalliscJ into charges an order of suspension could not be made before departmental proceedings were actually started and while they were merely contemplated.\n\nHe also asked for communication of the nature of the departmental proceedings which had been started against him within 14 days with a request that the order of suspension be withdrawn in default thereof. It appears that there was no response to this.\n\nThe respondent filed his writ petition on September 14, 1964 praying for the quashing of the order particularly on the above grounds raised in his memorandum.\n\nA counter affidavit to the petition was filed on behalf of the Chief retary to the Government of Bihar who was the third respondent in the pet!tion. The averments in the said affidavit were that a report had been made to the Central Government against the petitioner on July 6, 1964 and having regard to the activities of the petitioner it had become necClisary to remove him from the field of activities and as such he had been transferred to Patna after being relieved of his post on July 13, 1964. ft was said further that even before the receipt of the suspension order the petitioner had been actually questioned by S. P; Verma, the then Inspector-General of Police, Bihar as early as February 8, 1964 apprising the petitioner that his activities had attracted the attention of Government. It was admitted that departmental enquiry and investigation into the conduct of the petitioner were still going on and as such charges had not been framed against\n\nhim. Finally, it was said that the order was not by way of punisll.-\n\nent and had been passed pending departmental enquiry into his conduct.\n\nAnother counter affidavit was filed on behalf of the Govemme1!-t of India and the Deputy Secretary to the Government of India, respondents l and 2 in the petition wherein substantially the same averments were made as in the counter affidavit on behalf of respondent No. 3. ·\n\nA large number of points were canvassed before the High Court which examined thee provisions of different sets of rules and relying particularly on the difference in wording of rule 12 of the Central Civil Services Rules which empowered the appointing authority to place an officer under suspension inter alia, where a disciplinary proceeding against him was contemplated or was pending and rule 7 of the All India Services Rules (quoted in extenso hereinafter) it came to the conclusion that the order of\n\nsuspension was not proper. Further, according to one of the Judges of that Court ·\n\n''To allow a member of that (the All India) service to be placed under suspension without the formal proceeding being started may cause humiliation to an officer of such high rank without any justification whatsoever.\"\n\nAccording to the other learned Judge who took substantially the same view the order of suspensioin only indicated that disciplinary proceedings against the petitioner were in contemplation and this was not provided for in rule 7.\n\nIn our view it would not be proper to interpret the provisions of the AH India Service (Discipline and Appeal) Rules 1955 by reference to the provisions of other rules even if they were made by or under the authority of the President of India. The All India Services (Discipline and Appeal) Rules 1955 as they stood at the relevant time were a self-contained code--and we have to examine the provisions thereof to find out whether the order passed on the petitioner was justified. These rules were promulgated in exercise of the powers conferred by sub-s. ( 1) of s. 3 of the All lnd_ia Services Act 1951 by the Central Govelf!lment after consultation with the Governments of the States concerned. They were applicable to nlembers of the Indian Administrative Service and those of the Indian Police Service. Cl. . 3 of the Rules provided for penalties which might .for good and sufficient reasons be imposed on a member of the servic7. . Suspension is nituation where on receipt of al, legations of grave misconduct against him the Government is of opinion that it would not be proper to allow the officer concerned to function in the ordinary way.\n\nThe matter is however not res integra and there is a series of decisions of. this Court which throw considerable -light on the power of, a master including a Government to suspend a servant or an officer under rules of service or even de hors su-.h rules.\n\nThe law of master and servant .including Government servants with regard to suspension of an employee was discussed at some length in The Managemen; of Hotel Imperial v. Hotel Workers'\n\nUnion('). However rules of service of Government officers did not fall for consideration there.\n\nChampak Lal Chimanlal Shah\n\nv. The Union of India( 2 ) was a case where a temporary Government servnt's services were terminated.\n\nThe case shows, as is well known, that even before a formal departmental enquiry is launched a prelimi:nary enquiry is usually held to find out whether a prima facie case is made out against a Government servant.\n\nT!iis preliminary enquiry is directed to the collection of facts in regard to the work and conduct of a Government servant in which he. may or may not be associated so that the authority concerned may decide whether or not to subject the seryant concerned to the enquiry under Art. 311 for inflicting one of the thtee major punishments mentioned therein and such a preliminary enquiry may even be held ex parte. In R. P. Kapur v. Union of India & another(\") the general principles governing a master and servant were discussed in some detail and .it was said :\n\nF \"If there is no express term in the contract relating to suspension and payment , during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his . full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there G is a provision in--the\" statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith .\n\nOn general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry H\n\n(l) [19601 l S.C.R. 476, 482.\n\n(2) [1964] 5 S.C.R. 190.\n\n\ninto his conduct or pending a criminal proceeding, which may eventually , result in a departmental enquiry against him.\"\n\n. There is however a direct authority of this Court in S. Govinda Menon v. The Union of India(').\n\nThe appellant before this Court was a member of the Indian Administrative Service. He was the First Member of the Board of Revenue, Kerala State and was holding the post of Commissioner of Hindu Religious _ and Charitable .Endowments. On the basis of certain complaints containing allegations of misconduct against the appellant in the discharge of his duties as such Commissioner the Kerala Government instituted certain preliminary enquiries and thereafter started\n\ndisciplinary proceedings against him and also placed him under suspension under rule 7 of the All India Services (Discipline and Appeal) Rules. One of the grounds urged by the appellant was that the order of suspension which was dated March 8, 1963 was not in compliance with rule 7 inasmuch as definite charges were framed aginst him only on 6th June, 1963. On the basis of rule 5(2) it was argued that the word \"charges\" which occurred in this rule and in rule 7 should be given the same meaniag and no order of suspension could be passed under rule 7 before the charges in terms of r. 5 (2) were tramed against him. This was turned down by this Court observing (at p. 582) :·\n\n\"Rule 5 (2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. The framing of the charge under Rule 5 ( 2) is necessary to enable' the member, of the Service to meet the case against him.\n\nThe language of rule 7 ( 1} is _however different, and that rule provides that the Government may place a member , of the Service under suspension \"having regard to the nature of the charge/charges and the circumstances in any case\" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in rule 5 ( 2) and rule 7 we are of the opinion that the worq 'charges' in rule 7 (1) should be giv'en a wider meaning as denoting the accusation or imoutation against the member of the Service.\"\n\nIt is worthy of note that in the order of suspension it was stated as follows :-\n\nH \"The Government have received several petitions containing serious allegations of official misconduct\n\n\nagainst Shri S. Govinda Menon . . Preliminary enquiries caused to be conducted into the allegations have shown prima facie that the officer is guilty of corruption. The Kerala High Court has also occasion to cornment on the conduct of the officet in their judgment -in O.P. 2306 of 1962 delivered on 12th February 1963 .... , ...... .\n\nThe judgment in the above case and the preliminary report of the X-Branch police have disclosed the following grave charges of serious irregularity and official misconduct on the p, art of the accused officer ....... .\n\nThe detailed enquiry into the charges by the X- Branch is in progress.\n\nThe evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer jn his capacity a, s First Member of the Bodrd of Revenue. In the interest of the proper conduct of the enquiry it is necessary that the officer should 111ot be allowed to continue in that post.\n\nHaving regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. Shri S.\n\nGovinda Menon J.A.S. . . . is therefore placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules 1955 till the disciplinary proceedings initiated against him are completed.\" It was urged before us that the order of suspension there was different from the one be.fore us.\n\nWhile there is no doubt that thei order against the appellant in the above case was far more detailed both with regard to the nature of the charges and to the necessity of placing him under suspension, in substance there is little difference for the purpose of rule 7 of the Service Rules.\n\nThe order in this case dated 31st July 1964 shows that serious allegations of corruption and malpractice~ had been made against\n\ntheJ fespondent and he was also reported to have contravened thl' provisions of the All India Service Conduct Ruit.~ and enquiries mad@ by thll G9vemment of Bihar into the g))egations had revealed that there was a prima facie case made out ag:tlllBt him. Merely because the order mentioned that disciplinary proceedings were contemplated against the respondent, as compared to rule 7 which ot:ontains phrase1dike \"the initiation of disciplinary proceedings\" and the \"starting of such proceedings\" we cannot hold that the situation in the present case had not reached a stage which called for an order of suspension.\n\nIn su?stance disciplinary proceedings can be said to be started agamst an\n\nofficer when complaints abqut his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made out against him for the framing of charges.\n\nWhen the order of suspension itself shows that Government was of the view that such a prima facie case for departmental proceedings had been made out the fact that the order also mentions that such proceedini;;; were contemplated makes no difference.\n\nAgain the fact that in other rules of service an order of sus pension may be made when \"disciplinary proceeding; were contemplated\" should not lead us to take the view that a membe; of an All India Service should be dealt with differently. Tht\n\nreputation of an officer is equally valuable no matter whether he belongs to the All India Service or to one of a humbler carlre.\n\nIt is the exigency of the conditions of service which requires or calls for an order of suspension and there can be no difference in regard to this matter as between a member of . an All India Service and a member of a State Service or a Railway Service.\n\nJn the result the appeal is allowed but in the circurnsta!!·es of the case we direct the parties to pay and bear their own costs.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 47, "entities": [{"text": "GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS & ORS", "offset_not_found": false}}, {"text": "TARAK NA'IH GHOSH", "label": "RESPONDENT", "start_char": 49, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "TARAK NATH GHOSH", "offset_not_found": false}}, {"text": "February 12, 1971", "label": "DATE", "start_char": 68, "end_char": 85, "source": "ner", "metadata": {"in_sentence": "TARAK NA'IH GHOSH\n\nFebruary 12, 1971\n\n[G. K. MITTER AND A. N. RAY, JJ.]"}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 88, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER*", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "Bihar", "label": "GPE", "start_char": 432, "end_char": 437, "source": "ner", "metadata": {"in_sentence": "Serious allegations of corruption and malpractices had been made against the respondent, a member of the Indian Police Service, serving in the State of Bihar."}}, {"text": "India", "label": "GPE", "start_char": 1470, "end_char": 1475, "source": "ner", "metadata": {"in_sentence": "It would not be proper to interpret the Rules, which form a self-contained Code, by reference to the provisions of other rules even if they were made by or under the authority of the President of India. ["}}, {"text": "1967] 2 S.C.R. 566", "label": "CASE_CITATION", "start_char": 3391, "end_char": 3409, "source": "regex", "metadata": {}}, {"text": "Jagadish Swarup", "label": "LAWYER", "start_char": 3609, "end_char": 3624, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-General and B. K. P. Sinha, for the appellants."}}, {"text": "B. K. P. Sinha", "label": "LAWYER", "start_char": 3648, "end_char": 3662, "source": "ner", "metadata": {"in_sentence": "Jagadish Swarup, Solicitor-General and B. K. P. Sinha, for the appellants."}}, {"text": "B, C. Ghosh", "label": "LAWYER", "start_char": 3685, "end_char": 3696, "source": "ner", "metadata": {"in_sentence": "B, C. Ghosh, P. K. Chatterjee and Rathin Das, for the!"}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 3698, "end_char": 3714, "source": "ner", "metadata": {"in_sentence": "B, C. Ghosh, P. K. Chatterjee and Rathin Das, for the!"}}, {"text": "Rathin Das", "label": "OTHER_PERSON", "start_char": 3719, "end_char": 3729, "source": "ner", "metadata": {"in_sentence": "B, C. Ghosh, P. K. Chatterjee and Rathin Das, for the!"}}, {"text": "Mitter", "label": "JUDGE", "start_char": 3800, "end_char": 3806, "source": "ner", "metadata": {"in_sentence": "The Judgment of the tourt was delivered by\n\nMitter, J.\n\nThe question in this appeal is, whether the order of suspension passed on the respondent on July 31, 1964 was properly struck down by the Patna High Court."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 3950, "end_char": 3966, "source": "ner", "metadata": {"in_sentence": "The Judgment of the tourt was delivered by\n\nMitter, J.\n\nThe question in this appeal is, whether the order of suspension passed on the respondent on July 31, 1964 was properly struck down by the Patna High Court."}}, {"text": "25th January, 1937", "label": "DATE", "start_char": 4065, "end_char": 4083, "source": "ner", "metadata": {"in_sentence": "The respondent is a member of the Indian Police Service appointed on 25th January, 1937 and at the material time he was holding the substantive railk of Deputy Superintendent of Police in Bihar."}}, {"text": "Ranchi", "label": "GPE", "start_char": 4222, "end_char": 4228, "source": "ner", "metadata": {"in_sentence": "In June 1962 he was posted at Ranchi."}}, {"text": "Patna", "label": "GPE", "start_char": 4252, "end_char": 4257, "source": "ner", "metadata": {"in_sentence": "He was transferred to Patna and appoint- .ed as Special Officer, Political, General and Transport Department on July 23, 1964."}}, {"text": "July 23, 1964", "label": "DATE", "start_char": 4342, "end_char": 4355, "source": "ner", "metadata": {"in_sentence": "He was transferred to Patna and appoint- .ed as Special Officer, Political, General and Transport Department on July 23, 1964."}}, {"text": "T. N. Ghosh", "label": "OTHER_PERSON", "start_char": 4511, "end_char": 4522, "source": "ner", "metadata": {"in_sentence": "The order of which the validity is in question ran as follows :-\n\n\"Whereas serious allegations of corruption and malpractices have been made against Shri T. N. Ghosh, I. P., Deputy Inspector General of Police, Southern Range, Ranchi;\n\nAnd whereas the said Shri T. N. Ghosh is also reported to 11ave contravened certain provisions of the All India Services (Conduct) Rules, 1954;\n\nAnd whereas the enquiries made by the Government of Bihar into these al!egatiQns have revealed that there is a primit facie .case made out against him;\n\nAnd whereas disciplinary proceedings in respect of these mat- iers are contemplated against the said Shri T. N. Ghosh;\n\nAnd whereas the Government of India, after carefully considering the available material, and having regard to the nature <>f the charges and circumstances of the case, are satisfied that it is necessary and desirable to place the said Shri T. N. Ghosh under suspension :\n\nNow, therefore, the Government of India hereby place the \\aid."}}, {"text": "Government of Bihar", "label": "ORG", "start_char": 4775, "end_char": 4794, "source": "ner", "metadata": {"in_sentence": "The order of which the validity is in question ran as follows :-\n\n\"Whereas serious allegations of corruption and malpractices have been made against Shri T. N. Ghosh, I. P., Deputy Inspector General of Police, Southern Range, Ranchi;\n\nAnd whereas the said Shri T. N. Ghosh is also reported to 11ave contravened certain provisions of the All India Services (Conduct) Rules, 1954;\n\nAnd whereas the enquiries made by the Government of Bihar into these al!egatiQns have revealed that there is a primit facie .case made out against him;\n\nAnd whereas disciplinary proceedings in respect of these mat- iers are contemplated against the said Shri T. N. Ghosh;\n\nAnd whereas the Government of India, after carefully considering the available material, and having regard to the nature <>f the charges and circumstances of the case, are satisfied that it is necessary and desirable to place the said Shri T. N. Ghosh under suspension :\n\nNow, therefore, the Government of India hereby place the \\aid."}}, {"text": "Government of India", "label": "ORG", "start_char": 5026, "end_char": 5045, "source": "ner", "metadata": {"in_sentence": "The order of which the validity is in question ran as follows :-\n\n\"Whereas serious allegations of corruption and malpractices have been made against Shri T. N. Ghosh, I. P., Deputy Inspector General of Police, Southern Range, Ranchi;\n\nAnd whereas the said Shri T. N. Ghosh is also reported to 11ave contravened certain provisions of the All India Services (Conduct) Rules, 1954;\n\nAnd whereas the enquiries made by the Government of Bihar into these al!egatiQns have revealed that there is a primit facie .case made out against him;\n\nAnd whereas disciplinary proceedings in respect of these mat- iers are contemplated against the said Shri T. N. Ghosh;\n\nAnd whereas the Government of India, after carefully considering the available material, and having regard to the nature <>f the charges and circumstances of the case, are satisfied that it is necessary and desirable to place the said Shri T. N. Ghosh under suspension :\n\nNow, therefore, the Government of India hereby place the \\aid."}}, {"text": "K. Sivaraj", "label": "OTHER_PERSON", "start_char": 5635, "end_char": 5645, "source": "ner", "metadata": {"in_sentence": "Sd./- K. Sivaraj Deputy Secretary to the Government of India.\""}}, {"text": "24th August\n\n1964", "label": "DATE", "start_char": 5802, "end_char": 5819, "source": "ner", "metadata": {"in_sentence": "The respondent addressed a memorial to the Secretary to the Government of India, Ministry of Home Affairs on 24th August\n\n1964 complaining against the above order on the ground that it was not sanctioned by the rules i.e. All India Service (Conduct) Rules, 1954."}}, {"text": "September 14, 1964", "label": "DATE", "start_char": 6508, "end_char": 6526, "source": "ner", "metadata": {"in_sentence": "The respondent filed his writ petition on September 14, 1964 praying for the quashing of the order particularly on the above grounds raised in his memorandum."}}, {"text": "Central Government", "label": "ORG", "start_char": 6851, "end_char": 6869, "source": "ner", "metadata": {"in_sentence": "The averments in the said affidavit were that a report had been made to the Central Government against the petitioner on July 6, 1964 and having regard to the activities of the petitioner it had become necClisary to remove him from the field of activities and as such he had been transferred to Patna after being relieved of his post on July 13, 1964."}}, {"text": "July 6, 1964", "label": "DATE", "start_char": 6896, "end_char": 6908, "source": "ner", "metadata": {"in_sentence": "The averments in the said affidavit were that a report had been made to the Central Government against the petitioner on July 6, 1964 and having regard to the activities of the petitioner it had become necClisary to remove him from the field of activities and as such he had been transferred to Patna after being relieved of his post on July 13, 1964."}}, {"text": "July 13, 1964", "label": "DATE", "start_char": 7112, "end_char": 7125, "source": "ner", "metadata": {"in_sentence": "The averments in the said affidavit were that a report had been made to the Central Government against the petitioner on July 6, 1964 and having regard to the activities of the petitioner it had become necClisary to remove him from the field of activities and as such he had been transferred to Patna after being relieved of his post on July 13, 1964."}}, {"text": "S. P; Verma", "label": "OTHER_PERSON", "start_char": 7247, "end_char": 7258, "source": "ner", "metadata": {"in_sentence": "ft was said further that even before the receipt of the suspension order the petitioner had been actually questioned by S. P; Verma, the then Inspector-General of Police, Bihar as early as February 8, 1964 apprising the petitioner that his activities had attracted the attention of Government."}}, {"text": "February 8, 1964", "label": "DATE", "start_char": 7316, "end_char": 7332, "source": "ner", "metadata": {"in_sentence": "ft was said further that even before the receipt of the suspension order the petitioner had been actually questioned by S. P; Verma, the then Inspector-General of Police, Bihar as early as February 8, 1964 apprising the petitioner that his activities had attracted the attention of Government."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 9609, "end_char": 9613, "source": "regex", "metadata": {"statute": null}}, {"text": "Services Act 1951", "label": "STATUTE", "start_char": 9632, "end_char": 9649, "source": "regex", "metadata": {}}, {"text": "Central Govelf!lment", "label": "ORG", "start_char": 9657, "end_char": 9677, "source": "ner", "metadata": {"in_sentence": "These rules were promulgated in exercise of the powers conferred by sub-s. ( 1) of s. 3 of the All lnd_ia Services Act 1951 by the Central Govelf!lment after consultation with the Governments of the States concerned."}}, {"text": "Cl. 4", "label": "PROVISION", "start_char": 10038, "end_char": 10043, "source": "regex", "metadata": {"linked_statute_text": "Services Act 1951", "statute": "Services Act 1951"}}, {"text": "Cl. 5", "label": "PROVISION", "start_char": 10152, "end_char": 10157, "source": "regex", "metadata": {"linked_statute_text": "Services Act 1951", "statute": "Services Act 1951"}}, {"text": "Without prejudice to the provisions of the Public Servants Inquiry Act, 1850", "label": "STATUTE", "start_char": 10285, "end_char": 10361, "source": "regex", "metadata": {}}, {"text": "Halsbury", "label": "OTHER_PERSON", "start_char": 14562, "end_char": 14570, "source": "ner", "metadata": {"in_sentence": "As Halsbury puts it : ·\n\n\"Whether or not the master has power to suspend a servant during the duration of the contract of service H depends uponcthe construction of the particular.contract. '"}}, {"text": "Art. 989", "label": "PROVISION", "start_char": 15036, "end_char": 15044, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 19419, "end_char": 19427, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 5 S.C.R. 190", "label": "CASE_CITATION", "start_char": 20393, "end_char": 20412, "source": "regex", "metadata": {}}, {"text": "Kerala Government", "label": "ORG", "start_char": 21022, "end_char": 21039, "source": "ner", "metadata": {"in_sentence": "On the basis of certain complaints containing allegations of misconduct against the appellant in the discharge of his duties as such Commissioner the Kerala Government instituted certain preliminary enquiries and thereafter started\n\ndisciplinary proceedings against him and also placed him under suspension under rule 7 of the All India Services (Discipline and Appeal) Rules."}}, {"text": "March 8, 1963", "label": "DATE", "start_char": 21340, "end_char": 21353, "source": "ner", "metadata": {"in_sentence": "One of the grounds urged by the appellant was that the order of suspension which was dated March 8, 1963 was not in compliance with rule 7 inasmuch as definite charges were framed aginst him only on 6th June, 1963."}}, {"text": "6th June, 1963", "label": "DATE", "start_char": 21448, "end_char": 21462, "source": "ner", "metadata": {"in_sentence": "One of the grounds urged by the appellant was that the order of suspension which was dated March 8, 1963 was not in compliance with rule 7 inasmuch as definite charges were framed aginst him only on 6th June, 1963."}}, {"text": "S. Govinda Menon", "label": "OTHER_PERSON", "start_char": 22804, "end_char": 22820, "source": "ner", "metadata": {"in_sentence": "It is worthy of note that in the order of suspension it was stated as follows :-\n\nH \"The Government have received several petitions containing serious allegations of official misconduct\n\nagainst Shri S. Govinda Menon . .", "canonical_name": "S.\n\nGovinda Menon"}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 22960, "end_char": 22977, "source": "ner", "metadata": {"in_sentence": "The Kerala High Court has also occasion to cornment on the conduct of the officet in their judgment -in O.P. 2306 of 1962 delivered on 12th February 1963 .... , ...... ."}}, {"text": "S.\n\nGovinda Menon", "label": "OTHER_PERSON", "start_char": 23883, "end_char": 23900, "source": "ner", "metadata": {"in_sentence": "Shri S.\n\nGovinda Menon J.A.S. . . .", "canonical_name": "S.\n\nGovinda Menon"}}, {"text": "31st July 1964", "label": "DATE", "start_char": 24515, "end_char": 24529, "source": "ner", "metadata": {"in_sentence": "The order in this case dated 31st July 1964 shows that serious allegations of corruption and malpractice~ had been made against\n\ntheJ fespondent and he was also reported to have contravened thl' provisions of the All India Service Conduct Ruit.~ and enquiries mad@ by thll G9vemment of Bihar into the g))egations had revealed that there was a prima facie case made out ag:tlllBt him."}}]} {"document_id": "1971_3_726_733_EN", "year": 1971, "text": "GANESH PRASAD DUBE\n\nSTATE OF BmAR AND OTHERS\n\nFebruary 16, 1971\n\n[C. A. VAIDIALINGAM AND A. N. RAY, JI.]\n\nPractice-Grant of Certificate by High Court-Application under Art<. 132(1) and 133(1)(a) to (c) of Constitution-Procedure to be followed J, y High Court.\n\nThe appellant, who was acting as Director of Public Instruction, challenged an order posting him as Director of State Institute of Education by a writ petition in the High Court, on various grounds. It was dismissed.\n\nHe applied for grant of certificate to appeal to this. Court under .Arts: 132(1) and 133(1) (a) to (c) of the. Constitution.\n\nThe High Court held that Art. 133(1) (a) did not apply, did not consider whether Arts. 133(1) (c) and 132 were applicable, doubted whether Art. 133 (!) (b) would apply, but 'ultimately granted a certificate under Art. 133(1).\n\nOn the question whether the certificate was properly granted.\n\nHELD : As the High Court has not properly considered the applicalion for grant of certificate. under Arts. 132(1) and 133(l)(b) and (c), il will have to be remanded to be considered by the High Court afresh. 1he High Court, in the fresh order to be passed, must clearly indicate under what particular Article or clause of the Article the certificate is _granted [733 A-CJ\n\nSaya Narain Prasad v. Sttte of Bihar {1970] 2 S.C.R. 275 and Mis Krishna Gyanodaya Sugar Ltd. v. The State of Bihar and Ors. A.l.R.\n\n1970 S.C. 2041, followed.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1256 of 1969.\n\nAppeal from the judgment and order dated February 17, 1969 of the Patna High Court in Civil Writ Jurisdiction Case No. 153 of 1969 with Civil Miscel!ameous Petition No. 4499 of 1969.\n\nApplication by respondent No. 1 for revocation of the certificate granted by the High Court under Art. 133(1 )(b) of the Constitution.\n\nS. T. Desai, Tarkeshwar Dayal and S. N. Prasad, for the appellant.\n\nL. M. Singhvi and U. P. SiTigh, for respondents Nos. 1 and 3 to 5.\n\nA Basudeva Prasad, Nawal Kishore Prasad Sinha and U. P. Singh,\n\nfor respondents Nos. 2 and 6 to 10.\n\nThe Judgment of the Court was delivered by-\n\nVaidialingam, J.-In this appeal, on certificate, the appellant challenges the order dated February 17, 1969 of the Patna High Court dismissing summarily C.W.J.C. No. 153 of 1969 filed under Art. 226 of the Constitution.\n\nThe appellant was appointed by the order dated March 21, 1968, by the State of Bihar temporarily to act as Director of Public Instruction, Bihar. On the date of the said appointment the appellant was the Director of State Institute of Science. In the enaorsement in this order, it was stated that the appellant's appointment as Director of Public Instruction has been made by promotion on a temporary basis for a period not exceeding six months in anticipation of the concurrence of the Public Service Commission.\n\nBy order dated November 18, 1968, the State Government passed an order posting the appellant as Director of State Institute of Education. It is stated in the said order that the appellant had been officiating in the post of Director of Public Instruction by virtue of the order dated March 21, 1968.\n\nThe appellant filed C.W.J.C. No. 153 of 1969 before the High Court challenging this order of November 18, 1968 on various grounds.\n\nHe had also alleged mala-fides in the passing of the said order. In the view that we take that the order of the High Court granting the certificate has to be remitted for fresh consideration, we do not propose to refer to the various grounds of attack made by the appellant in his writ petition before the High Court.\n\nThe High Court by its order dated February 17, 1969 has taken the view that as the appellant's appointment as Director of Public Instruction was on a temporary basis for a period not exceeding six months in anticipation of the concurrence of the Public Service Commission, the Public Service Commiss; on, which was subsequently consulted did not give its con1currence to the appointment of the appellant as Director of Public Instruction and therefore, the government passed the impugned order dated November 18, 1968 posting the appellant as Director.\n\nState Institute of Education.\n\nAs the appellant was appointed purely on a temporary basis, he has no right to claim the post.\n\nThe High Court has further expressed the view that it is not satisfied vrima facie that there was any mala-fides on the part of the Public Service Commission in not giving its concurrence to the appointment of the appellant or on the part of the government in not appointing the appellant as Director of Public Instruction. A further contention taken on behalf of the appellant\n\nthat the impugned order was not in conformity with the decision A of the Council of Ministers, was rejected by the High Court. On\n\nthis reasoning the High Court held \"as no prima facie case has been made out for interference with the order of the Government, as contained in Annexure 1, this application is summarily rejected\". Annexure l, in the above quotation was the impugned order dated November 18, 1968. It may be noted that the writ peti- B 1ion was dismiss.:d without issuing notice to the State and other respondents therein.\n\nOn behalf of the appe)lant Mr. S. T. Desai, learned counsel, attempted to argue on merits by urging that the High Court, in view of the allegations made by the appellant in the writ petition, was not justified in rejecting the petition summarily. The learned C counsel also attempted to argue that even on the basis of the materials placed before the court, the order is unsustainable.\n\nOn behalf of the first respondent, State of Bihar, C.M.P. No. 4498 'of 1969 has been filed for revoking the certificate granted by the High Court under Art. 133(1)(b) of the Constitution.\n\nDr. L. M. Singhvi, learned counsel for the State, therefore, raised preliminary objection that the certificate granted by the High Court is .not valid and as such it should be revoked. If the certificate is revoked, as prayed for by the State, the counsel urged, then there will be no need to go into the merits of the appeal, sought to be canvassed by Mr. S. T. Desai, learned counsel for the appellant.\n\nAs the preliminary objection has to be first dealt with it is now necessary to refer to the order of the High Court granting the certificate. After dismissal of the writ petition by the High Court, the appellant filed an application (Supreme Court Appeal No. 42 of 1969) for grant of certificate of fitness to appeal to this Court.\n\nThat application, no doubt, was opposed by the present respondents. The High Court by its order dated March 13, 1969 granted the certificate to the effect \"that the requirement of valuation to enable the petitioner to get a certificate is fulfil!ed under Article 13 3.( 1 ) of the Constitution.\"\n\nFrom the order of the High Court it is seen that the application for the grant of certificate was made , under Arts. 132 (1 ) 1 and 133(1) of the Constitution. So far as Art. 133(1) was concerned, the request for certificate was made under clauses (a) and ( c) and not under clause (b). But, however, during the course of arguments, the appellant's counsel relied on clause (b) of Art. 133(1) and that was permitted by the High Court. Therefore, ultimately the certificate was prayed for under Art. 132 (1) and Art. 133(1) dauses (a) to (c).\n\nAfter discussing the case of the appellant, the High Court held that in a case of this nature the\n\n,...,\n\nG. P. DUBF.Y v. BIHAR (Vaidialingam, J.)\n\n7UJ\n\nsalan or allowances attached to the office of the appellant cannot be considered to be the subject matter of dispute within the meaning of clause (a) of Art. 133 ( 1) of the Constitution. According to the High Court, the subject matter of the dispute is the right to continue in office and not the right to get the salary if he is allowed to continue in office. In this view the High Court held that the appellant cannot be granted a certificate under clause\n\n(a) of Art. 133(1).\n\nThe High Court then considered the question of granting a certificate under clause (b) of Art .. 133yl) of the Constitution.\n\nThe High Court was of the view that it i!Vperhaps possible to hold that the emoluments attached to the om'.ce can be taken into consideration for the purpose of valuation under clause (b). The High Court has expressed the view that the future emoluments which an incumbent of an office will be getting, i.f he succeeds in getting the office, will be the property respecting which some claim or question will be directly involved in the judgment sought to be appealed against provided it is a property. But, however, the High Court entertained a doubt whether the emoluments which became payable to an incumbent of the office in future, if an incumbent does not lose the office, due to any other reason, other than the subject matter of the dispute in the case, can be said to be property within the meaning of clause (b). But inspite of a!I these doubts, the High Court held that certifica1es have been granted by the High Court of Patna in several cases and then finally concluded :\n\n\" ... but for the purpose of determination of the question of valuation it is legitimate to assume in his favour that he claims a right to the office of the Director of Public Instruction which could have brought him the emoluments for a period of 3 years 3 months, if he succeeds.\"\n\nUltimately the High Court certified that the requirements of valuation to enable the appellant to get a certificate is fulfilled under Art. 13 3 (1 ) of the Constitution.\n\nDr. 1:-· M. Singvi's cont7ntion is that the certificaie granted' by the. High Court 1s not valid.\n\nHis argument ran as follows : The High C'.ourt has not granted the certificate under Art. 133(1) ( c); the High Court has .categorically held that the appellant cannot be g; anted a certificate under Ai; t. 133(l)(a). Though the concludmg part of the o_rder granting the certificate states that It has een granted under Art. 133(1), in the circumstances mentioned above, it is clear that the certificate has been granted only under Art. 133(1 )(b). This is on the ground that the appellant claimed his right to the office o.f the Director, Public\n\nInstruction, which would have brought him the emoluments referred to by him for a period of 3 years and three months, if the impugned order had not been passed. This method of valuation for the purpose of clause (b) is not correct.\n\nW!e are to state that the appellant had claimed that on the date of the impugned notification, he was getting a monthly alary\n\nof Rs. 1950/-. The post of Director of Public Instruction was dii the scale CJif Rs. 1850-100,2250.\n\nHe was entitled to get an annual increment of Rs. 100/-. But for the impugned order the appellant claimed that he would have continued in service for a period of, 3 years and 3 months before attaining the age of superannuation, and as suh during this period he would have earned a salary of Rs. 83,000/-.\n\nMr. S. T. Desai, learned counsel for the appellant urged that grant of a certificate under clause (b) of Art. 33 (1) is con'ect. In the alternative he contended that as the claim made by the appellant for grant of a certificate under Art. 132(1) and under Art. 133(1 )(e) has not been at all discussed or decided\n\nby the. High Court and, if it is held that the certificate as no\\l' _granted is not valid, the High Court may be required to consider the grant of a certificate under Arts. 132(1) and 133 (1 )( c).\n\nMr. Desai also urged that as very serious allegations of mala-fides in the passing of the impugned order have been made by the appellant, the High Court was not justified in rejecting the writ petition summarily without issuing notice to the respondents.\n\nHe conten4ed that all the material records bearing on the matters arising for consideration are available in this Court and in view of this circumstance, he requested that the hearing of the appeal may be proceeded with by this Court.\n\nWe are not inclined to agree with Mr. Desai that if the certificate granted by the High Court is not valid, this Court can proceed to hear the appeal on merits.\n\nMr. Desai relied on the decision of th_is Court reported in Century Spinning and Manufacturing Company Ltd. and another v. The Ulhasnagar Municipal Council and another(') in support of his contention that the High Court was not justified in dismissing the writ petition summarily. It is no doubt true that in the above decision it has been held that though the High Court has a discretion to decline to exercise its extra-ordinary jurisdiction under Art. 226, nevertheless, the discretion is to be judicially exercised and if the petitioner makes a claim which is frivolous, vexa\". 64of1970 decided on 21-8-197P.\n\nIll\n\nCoun: is not correct.\n\nIn this context Dr. Singhvi relied on the decisions of this Court in Chhitarmal v. M/ s Shah Pannalal Chandulal(1) and Satyanarain Prasad v. State of Bihar(2 ) regarding 1he test to be applied for the purpose of granting a certificate under clause (a) or (b) of Art. 133(1). Dr. Singhvi also relied on the first of the above references, in support of his contention that in the absence of a valid certificate, the appeal is incompetent and it has to be dismissed.\n\nMr. S. T. Desai, learned counsel for the appellant, urged that .the High Court has not properly considered the claim made by the appellant for a certificate under Arts. 132 (1) and 13 3 ( 1 )(b) and (c).\n\nArticle 132(1) has not been considered at all nor has fhe High Court considered clause (c) of Art. 133(1)(c). Even with regard to clause (b), the High Court has given a very haliing finding. Therefore, the counsel urged that the Higil Court may be required to consider the application for grant of a certificate afresh.\n\nIt is not necssary at this stage to consider whether correct , principles have been applied by the High Court in granting the certificate under Art 133 (1 )(b). As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificates under similar circumstances. As the High Court is being required to consider this matter afresh, we do not think it necessary to express any opinion on this aspect.\n\nAdmittedly the High Court has not considered the question whether the appellant will be entitled to a certificate under Art. J 32\n\n(1) or Art. 133(1)(c). It was pointed out to us on behalf of the respondent that the High Court did not consider the grant of a certificate under clause (c) of Art. 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution. No doubt there is such a passing remark in the order of the High Court, but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court. We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court. Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent.\n\nBut the mattei: does no rest there. In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this Court bas directed the High Court to consider the question whether a case bas been made out for issue of a certificate under such other provisions. (Vide Satyanarain\n\nII) [1965] 2 S.C.R. 751.\n\n(2) [1970] 2 s.cc 275.\n\nG. P. DUBEY v. BllIAR (Vaidialingam, /.) 733\n\nPrasad v. State of Bihar(') and M/s Shree Krishna Gyanodaya Sugar Ltd. v. The State of B1nar and others(').\n\nAs the High Court has not properly considered the application filed by the appellant, that is, Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, that application will be taken up by the High Court afresh. The High Court will consider whether the appellant is able to satisfy the court that he is eligible to get a certificate under Art. 132(1) or under Art. 133 ( 1) (b) or ( c) of the Constitution. It is not necessary for the High Court to consider whether the certifu:ate is to be granted under clause (a) of Art. 133(1) as that question is already concluded against the appellant in its order dated March 13,1969.\n\nThe High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted. We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is issued under Art. 13 3 ( 1) .\n\nAs already ~. !long time has elapsed, the High Court is required to dispose of the said application as expeditiously as possible within a period not exceeding two month~ from the date of receipt of this order by the High Court. Subject to the observations contained above, the appeal is dismissed. There will be no order as to costs in this appeal.\n\nV.P.S.\n\n(I) [1970] 2 S.C.C. 275.\n\n(2) A.LR. 1970 S.C. 2041.\n\nAppeal dismissed.", "total_entities": 71, "entities": [{"text": "DUBE\n\nSTATE OF BmAR AND OTHERS", "label": "RESPONDENT", "start_char": 14, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR AND OTHERS", "offset_not_found": false}}, {"text": "February 16, 1971", "label": "DATE", "start_char": 46, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "GANESH PRASAD DUBE\n\nSTATE OF BmAR AND OTHERS\n\nFebruary 16, 1971\n\n[C. A. VAIDIALINGAM AND A. N. RAY, JI.]"}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 89, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 630, "end_char": 641, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 133(1)", "label": "PROVISION", "start_char": 686, "end_char": 698, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 744, "end_char": 752, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 818, "end_char": 829, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 132(1) and 133(l)(b)", "label": "PROVISION", "start_char": 996, "end_char": 1022, "source": "regex", "metadata": {"statute": null}}, {"text": "1970] 2 S.C.R. 275", "label": "CASE_CITATION", "start_char": 1306, "end_char": 1324, "source": "regex", "metadata": {}}, {"text": "Art. 133(1 )(b)", "label": "PROVISION", "start_char": 1772, "end_char": 1787, "source": "regex", "metadata": {"statute": null}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 1810, "end_char": 1821, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Tarkeshwar Dayal and S. N. Prasad, for the appellant.", "canonical_name": "S. T. Desai"}}, {"text": "Tarkeshwar Dayal", "label": "LAWYER", "start_char": 1823, "end_char": 1839, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Tarkeshwar Dayal and S. N. Prasad, for the appellant."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 1844, "end_char": 1856, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Tarkeshwar Dayal and S. N. Prasad, for the appellant."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 1878, "end_char": 1891, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and U. P. SiTigh, for respondents Nos.", "canonical_name": "L. M. Singhvi"}}, {"text": "U. P. SiTigh", "label": "LAWYER", "start_char": 1896, "end_char": 1908, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and U. P. SiTigh, for respondents Nos.", "canonical_name": "U. P. SiTigh"}}, {"text": "A Basudeva Prasad", "label": "LAWYER", "start_char": 1946, "end_char": 1963, "source": "ner", "metadata": {"in_sentence": "A Basudeva Prasad, Nawal Kishore Prasad Sinha and U. P. Singh,\n\nfor respondents Nos."}}, {"text": "Nawal Kishore Prasad Sinha", "label": "LAWYER", "start_char": 1965, "end_char": 1991, "source": "ner", "metadata": {"in_sentence": "A Basudeva Prasad, Nawal Kishore Prasad Sinha and U. P. Singh,\n\nfor respondents Nos."}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 1996, "end_char": 2007, "source": "ner", "metadata": {"in_sentence": "A Basudeva Prasad, Nawal Kishore Prasad Sinha and U. P. Singh,\n\nfor respondents Nos.", "canonical_name": "U. P. SiTigh"}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 2092, "end_char": 2104, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by-\n\nVaidialingam, J.-In this appeal, on certificate, the appellant challenges the order dated February 17, 1969 of the Patna High Court dismissing summarily C.W.J.C. No."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2282, "end_char": 2290, "source": "regex", "metadata": {"statute": null}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 2800, "end_char": 2825, "source": "ner", "metadata": {"in_sentence": "In the enaorsement in this order, it was stated that the appellant's appointment as Director of Public Instruction has been made by promotion on a temporary basis for a period not exceeding six months in anticipation of the concurrence of the Public Service Commission."}}, {"text": "November 18, 1968", "label": "DATE", "start_char": 2843, "end_char": 2860, "source": "ner", "metadata": {"in_sentence": "By order dated November 18, 1968, the State Government passed an order posting the appellant as Director of State Institute of Education."}}, {"text": "March 21, 1968", "label": "DATE", "start_char": 3112, "end_char": 3126, "source": "ner", "metadata": {"in_sentence": "It is stated in the said order that the appellant had been officiating in the post of Director of Public Instruction by virtue of the order dated March 21, 1968."}}, {"text": "February 17, 1969", "label": "DATE", "start_char": 3614, "end_char": 3631, "source": "ner", "metadata": {"in_sentence": "The High Court by its order dated February 17, 1969 has taken the view that as the appellant's appointment as Director of Public Instruction was on a temporary basis for a period not exceeding six months in anticipation of the concurrence of the Public Service Commission, the Public Service Commiss; on, which was subsequently consulted did not give its con1currence to the appointment of the appellant as Director of Public Instruction and therefore, the government passed the impugned order dated November 18, 1968 posting the appellant as Director."}}, {"text": "State Institute of Education", "label": "ORG", "start_char": 4134, "end_char": 4162, "source": "ner", "metadata": {"in_sentence": "State Institute of Education."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 5208, "end_char": 5219, "source": "ner", "metadata": {"in_sentence": "On behalf of the appe)lant Mr. S. T. Desai, learned counsel, attempted to argue on merits by urging that the High Court, in view of the allegations made by the appellant in the writ petition, was not justified in rejecting the petition summarily.", "canonical_name": "S. T. Desai"}}, {"text": "State of Bihar", "label": "RESPONDENT", "start_char": 5599, "end_char": 5613, "source": "ner", "metadata": {"in_sentence": "On behalf of the first respondent, State of Bihar, C.M.P. No."}}, {"text": "Art. 133(1)(b)", "label": "PROVISION", "start_char": 5716, "end_char": 5730, "source": "regex", "metadata": {"statute": null}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 5757, "end_char": 5770, "source": "ner", "metadata": {"in_sentence": "Dr. L. M. Singhvi, learned counsel for the State, therefore, raised preliminary objection that the certificate granted by the High Court is .not valid and as such it should be revoked.", "canonical_name": "L. M. Singhvi"}}, {"text": "March 13, 1969", "label": "DATE", "start_char": 6594, "end_char": 6608, "source": "ner", "metadata": {"in_sentence": "The High Court by its order dated March 13, 1969 granted the certificate to the effect \"that the requirement of valuation to enable the petitioner to get a certificate is fulfil!ed under Article 13 3.("}}, {"text": "Article 13", "label": "PROVISION", "start_char": 6747, "end_char": 6757, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 132", "label": "PROVISION", "start_char": 6900, "end_char": 6909, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 6959, "end_char": 6970, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 7170, "end_char": 7181, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 132", "label": "PROVISION", "start_char": 7283, "end_char": 7291, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 7300, "end_char": 7311, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 7638, "end_char": 7646, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 7952, "end_char": 7963, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 9010, "end_char": 9029, "source": "ner", "metadata": {"in_sentence": "But inspite of a!I these doubts, the High Court held that certifica1es have been granted by the High Court of Patna in several cases and then finally concluded :\n\n\" ... but for the purpose of determination of the question of valuation it is legitimate to assume in his favour that he claims a right to the office of the Director of Public Instruction which could have brought him the emoluments for a period of 3 years 3 months, if he succeeds.\""}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 9496, "end_char": 9503, "source": "regex", "metadata": {"statute": null}}, {"text": "M. Singvi", "label": "OTHER_PERSON", "start_char": 9542, "end_char": 9551, "source": "ner", "metadata": {"in_sentence": "Dr. 1:-· M. Singvi's cont7ntion is that the certificaie granted' by the."}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 9717, "end_char": 9728, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 9952, "end_char": 9963, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1 )(b)", "label": "PROVISION", "start_char": 10064, "end_char": 10079, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 33", "label": "PROVISION", "start_char": 11052, "end_char": 11059, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 132(1)", "label": "PROVISION", "start_char": 11181, "end_char": 11192, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1 )(e)", "label": "PROVISION", "start_char": 11203, "end_char": 11218, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 132(1) and 133", "label": "PROVISION", "start_char": 11428, "end_char": 11448, "source": "regex", "metadata": {"statute": null}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 11464, "end_char": 11469, "source": "ner", "metadata": {"in_sentence": "Mr. Desai also urged that as very serious allegations of mala-fides in the passing of the impugned order have been made by the appellant, the High Court was not justified in rejecting the writ petition summarily without issuing notice to the respondents."}}, {"text": "Ulhasnagar Municipal Council", "label": "RESPONDENT", "start_char": 12241, "end_char": 12269, "source": "ner", "metadata": {"in_sentence": "Mr. Desai relied on the decision of th_is Court reported in Century Spinning and Manufacturing Company Ltd. and another v. The Ulhasnagar Municipal Council and another(') in support of his contention that the High Court was not justified in dismissing the writ petition summarily."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 12564, "end_char": 12572, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 13418, "end_char": 13426, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 13903, "end_char": 13911, "source": "regex", "metadata": {"statute": null}}, {"text": "Smghv1", "label": "LAWYER", "start_char": 14756, "end_char": 14762, "source": "ner", "metadata": {"in_sentence": "If the er!ifiate granted by the High Court, a~ contended by Dr. Smghv1, JS mvalid, then the appeal before us ts an incompetent appeal anci no direction on merits can be given by this Court on such an incompetent appeal."}}, {"text": "Singhvi", "label": "OTHER_PERSON", "start_char": 15051, "end_char": 15058, "source": "ner", "metadata": {"in_sentence": "Dr. Singhvi urged that the grant of certificate under Art."}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 15101, "end_char": 15109, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 15581, "end_char": 15592, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 132", "label": "PROVISION", "start_char": 15947, "end_char": 15956, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 132(1)", "label": "PROVISION", "start_char": 15989, "end_char": 16003, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)(c)", "label": "PROVISION", "start_char": 16083, "end_char": 16097, "source": "regex", "metadata": {"statute": null}}, {"text": "Art 133", "label": "PROVISION", "start_char": 16454, "end_char": 16461, "source": "regex", "metadata": {"statute": null}}, {"text": "Patna High Court", "label": "COURT", "start_char": 16618, "end_char": 16634, "source": "ner", "metadata": {"in_sentence": "As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificates under similar circumstances."}}, {"text": "Art. 133(1)(c)", "label": "PROVISION", "start_char": 16964, "end_char": 16978, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 17117, "end_char": 17128, "source": "regex", "metadata": {"statute": null}}, {"text": "Vide Satyanarain", "label": "JUDGE", "start_char": 18106, "end_char": 18122, "source": "ner", "metadata": {"in_sentence": "Vide Satyanarain\n\nII) [1965] 2 S.C.R. 751."}}, {"text": "[1965] 2 S.C.R. 751", "label": "CASE_CITATION", "start_char": 18128, "end_char": 18147, "source": "regex", "metadata": {}}, {"text": "Art. 132(1)", "label": "PROVISION", "start_char": 18700, "end_char": 18711, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 18721, "end_char": 18729, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 18880, "end_char": 18891, "source": "regex", "metadata": {"statute": null}}, {"text": "March 13,1969.", "label": "DATE", "start_char": 18971, "end_char": 18985, "source": "ner", "metadata": {"in_sentence": "133(1) as that question is already concluded against the appellant in its order dated March 13,1969."}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 19279, "end_char": 19286, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_734_747_EN", "year": 1971, "text": "SYED SHAH GHULAM GROUSE MOHIUDDIN AND ORS.\n\nSYED SHAH AHMED MOIIIUDDIN KAMISUL QUADRI\n\n(DEAD) BY L. Rs. AND OTHERS\n\nFebruary 17, 1971\n\n[G. K. MITTER AND A. N. RAY, JJ.]\n\nldinorit, y and Guardianship-Muslim minor represented in orbitration proceedings and in Court by brother who was not appointed guardian by Courll--Award and decree on award are viti'ated.\n\nLimitation Act, 1908, ss. 18 and 144-Renunciation of rights by co- Ol-Vners in property in favour of one co-owner under wrong impression that it was endowed property-Property later discovered to be Matrooka property-Limitation for filing suit is governed by s. 144 Limitation Act 1>08-Where knowledge of right to partition is held back by fraud limitation is extended under s. 18.\n\nAdverse possession-Possession by one co-owner is not by itself udverse to oher co-owners-These must be open denial of title to the parties entitled to the property by excluding and ousting them-Possession is not adverse to parties not G'Ware of their rights.\n\nShah Abdul Rahim wa.S Sajfadnasheen of a Dargah and Khankah in Hyderabad.\n\nHe had four sons and two daughters.\n\nAfter his death in 1905 he was succeeded as Sajjadanasheen by his eldest , son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaming to the Dargah and Khankah.\n\nThe matter of the partition of Matrooka properties was referred to arbitrators. The appellant who was Abdur Rahim's youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin.\n\nThe properties Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and. Khankah properties and any right or claim to them was renounced by Abdul Hai's brothers and sisters.\n\nThe arbitrators gaye their awa'rd on August 1, 1908 partitioning the properties.\n\nOn August 13, 1908 there was a decree in the Darul Khaza Coust confirming the aforesaid award. The properties B-1 to B-10\n\nthereafter remained in the possession of Abdul Hai. In 1927 Abdul Hai got an adjudication from the Nizam's Government that the Dargah and Khankah properties consisted only of two villages and that properties B-1 to B-10 were not Dargah and Khankah properties.\n\nIn 1938 Abdul Hai \\\\>rote a letter to the Nizam's government again asserting that properties B-1 to B-10 were his personal properties. The aprellant filed a suit on 24th Julv 1941 for setting aside the decree dated August 13, 1908, passed by the Darul_Khaza Court and for partition of the Matrooka properties left by his father including properties B-1 to B-10.\n\nHe impeached the award and the decree on the ground that he was not represented by a lawful guardian. \"He claimed that the award and decree should be avoided because they were based on the Wrongful representation of Abdul Hai that they were Dargah and Khankah properties. The rial court decreed the suit holding : ( !) that the award and decree m question were obtained by fraud; (2) that the letter written by Abdul Hai in 19.38 showed that he was aware of the Mafi'ooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant\n\nSHAH GHULAM v. SRAH AHMED 735\n\ncame to know the facts from the said letter of I 931> and the suit was not therefore barred by limitation. The High Court in appeal held : ( 1 J that the appellant was a minor and therefore reference to the arbitration and th.c award thereon were void; (2) that the decree passed by the Darulkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the prOjJerties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation.\n\nIn appeal by certificate to this Court, HELD : The appeal mµst be allowed.\n\n(i) The minority of the appellant was a fact found by the trial court and the High Court.\n\nThe appellant's brother who represented him in the arbitration and court proceedings was not a legal guardian, nor wa• he appointed by the Court. The relinquishment of property by Nooruduin on behalf of the minor was not binding on the minor whose interests\n\nv.cre not protected.\n\nThe arbitration! proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void. [740\n\nD, 741 E-F] Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133 and Jmambandi v. Mursi; ddi, 45 I.A. 73, referred to.\n\n(ii) The estate of a deceased Mohammedan devolves on his heirs at the moment of his death.\n\nThe heirs succeed to the estate as tenants in common in specific shares.\n\nWhen the heirs continue to hold the e'tate as tenants in common without dividing it and one of them subsequently brings a suit fdr recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and At.\n\n1!4 of Sch. I to the Limitation Act 1908 would be the relevant Article. [741 H, 742 Al\n\n(iii) The cause of action for partition of properties is a 'pe'rpetually recurring one'.\n\nIn Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate.\n\nIn the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to he Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be 'reopened by reason of fraud in the earlier proceedings.\n\n[746 G-747 B]\n\nMonsharam Chakravarty & Ors. v. Goneslz Chandra Chakra1(1rr_:: & On .. 17 C.W.N. 521, referred to.\n\n(iv' The decree of the Darul Khaza Court could not be an oh, tacle 10 the claim of the appellant fdr partition of the properties, becau\"' the poperties were admittedly not Dargah and Khankah properties but\n\n\\l atrooka properties.\n\nIf all parties proceeded upon a basis that these were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are re1toted to their position as heirs to the Matrooka property.\n\nThe award and H the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not he allowed to siand because the effect of the discovery .of the facts was to make it \"reasonably probable that the action will succeed\". [744 H-745 BJ 3-1 JOOSup Cl/72\n\nBirch v. Birch, [1902] Probate Division 131, referred to.\n\n. (v) 'Yhen a plaintiff has been kept from knowledge by the defendent o[ the crrcumstances constituting the fraud, the plaintiff can rely upon s. 18 of the Limitation Act to escape from the bar of limitation. When Abdul Hai got the properties released by reason of the decision Of the Governmel).t of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters.\n\nThe existence of the right of the appellant was kept concealed by Abdul Hai. The B appellant was not aware of the right nor could he have with reasonable diligence discovered it.\n\nThere was active concealment by Abdul Hai of the fact that the properties were not Dargah aild Khankah having full \" kr.owledge of the fact. It was only in 1941 that the appellant came to know of the .Matrooka character of the properties. [745 E, 746 BJ\n\nRolfe v. Gre11ory, [1964] 4 DeG. J & S 576, Boman Chandra Dalla Y. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and Rc.himboy v. Turner, 20 I.A. 1, referred to.\n\n(vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates \"to matters which prima facie would be a reason for setting the judgment aside\". [747 E-F]\n\nHalsbury's Laws of England, Third Edition, Vol. 22, para 1669 at D p. 790, referred to.\n\n(vii) The plea of adverse possession must also fail.\n\nIt was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties.\n\nEven after l 'l,27 it could not be said on the evidence on record that the appellant had any knowledge of the true character E of the properties or of ouster or adverse possession of Abdul Hai. Possession by one o-owner is not by itself adevrse to other co-owners.\n\nOn the contrary possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the coowner is in denial of title of co-owners and the possession is in hostility 10 ru-owners by exclusion of them. In the present case there was no evidence fo support this conclusion.\n\nOuster is an unequivocal act of asselrtion of title. There has to be open denial of title to the parties who are entitled F to it oy excluding and ousting them. [745 F-H]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 219 of 1967.\n\nAppeal from the judgment and decree dated December 16, 1965 of the A; ndhra Pradesh High Court in C.C-C. Appeal No. 24 of 1969.\n\nM. C. Chagla, R. V. Pillai and N. Nettar, for the appellants.\n\nC. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for respondent No. 1 (A).\n\nV. A. Seyid Muhammad a, nd S. P. Nayar, for respondent No. 3.\n\nA The Judgment of the Court was delivered by\n\nRay, J.-This is an appeal by certificate against the judgement dated 15 Dec, bmber, 1965 of the Andhra Pradesh High Court dismissing the appellants' suit and setting aside the decree in favour of the appellant passed by the Additional Chief Judge, B City Civil Court, Hyderabad on 18 October, 1958.\n\nShah Abdul Rahim a resident of the city of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghousie Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum. Shah Abdul Rahim ha son-ia-law, Abdur Rahim became the Sajjada of the Khankah and the Dargah Shariff. The Sajjada had control over all the expenses of the Dargah and Khankah and the entire property attached to the Dargah and Khankah remained in possession of the Sajjadanasheen and all the expenses of the Dargah and Khankah were met from the income. After the death of Abdur Rahim, Abdul Hai beame the Sajjadanasheen and was having control over the Dargah and Khankah. Abdur Rahim left three adult sons and onb minor son and also two adult daughters.\n\nApart from the property attached to the Dargah and Khankah Abdur Rahim' left personal Mati:ooka properties. There might have been a dispute betwn the parties rtgarding the partition of these properties.\n\nBut the parties settled the dispute by mutual consent and by agreement referred the matter to arbitration for the settlement of the dispute. 'The arbitrators made an award. The decree recited that the properties marked with the letter 'F' in the pla, n annexed to the award were Khankah and Dargah Shariff properties in th'e possession of the defendant Abdul Hai for meeting the expenses of the Khankah and no one has any right or claim over the property 'at present' or 'in future'.\n\nThe decree concluded by stating tllat the Dargah and Khankah properties were not !iabk to partition and' none of the plaintiffs \"shall have any right or claim regarding ihe same'\n\nThe appellant impeached the award and the decree upon the award inter alia o.n the grounds that the award was void by reason of lack of lawful 1guardian on behalf of tlie appellant to protect and represent the rights and interests of the minor in the arbitra- tion proceedings and in the prodeedings resulting in the decree 'Upon the award. The appellant also claimed that the award and\n\nthe decree should be avoided becuse the properties marked Exhibits B-1 to B-10 were not Dargah and Khankah properties. in fact and were treated in the award and the deer~ to be Dargah\n\nand Khank; ah on the wrongful representation of Abdul Hai. The appellant in the year 1938 discovered for the first time tHo true and correct facts that the same were not Khankah and Dargah properties and therefore claimed the same as divisible upon partition amongst the heirs of Abdul Rahim.\n\nThe trial Court held that the award and the decree thereon were obtained by fraud and the decree was to be set aside. The reasoning given by the trial Court was that it was established on lhe evidence that Abdul Hai was in full possession and enjoyment of the whol.e of the property of Abdul Rahim. including tire property marked as Exhibits B-1 to B-10. In t)le letter dated 13- August, 1938 Exhibit P-8 Abdul Hai denied that the property wa~ waqf property belonging to the Dargah and asserteq that it was; owned and possessed by him and relinquished by his relatives.\n\nTht letter was held by the trial Court to indicate that Abdul Hai\n\nnew that the property was the property of his father which he inherited along with his brothers and sisters and i, n spite of such\n\nknowledge and belief he caused it to be represnted before the :1rbitrators that the property belongeP. to the Dargah and that the ; ame was in his possession as Sajjaaanasheen.\n\nThe trial Court further held that the appellant came to know the real state of affairs from the letter of Abdul Hai dated 13 August, 1938 and therefore the suit was not barred by limitation. The trial Court therefore passed a decree for cancellatiO!ll of the decree passed upon lhe award and passed a preliminary decree for partition of the Matrooka properties including the properties marked as.\n\nExhibits B-1 to B-10 in the award.\n\nIn the High Court four questions were considered; First, whether apart from the appellant any other party was a minor at the time of the arbitration agreement and whether there was a dispuie which could be referred to arbitration.\n\nSecnd, whether there was proof that at the time of the arbitration agreement and the award Abdul Hai made a fraudulant and false representation :o his brothers and sisters and made them believe that the pror\"rties belonging to the Sajjadanasheen were the properties of Dargah and Khankah which were not partible and by repreSentation and fraud prevented the partition of those properties. Third. whether the appellant had knowledge that Abdul Hai had clairrled the properties as the ancestral properties of the Sajjadanasheen earlier than the time when the appellant said he had knowlec!ge and whether the suit was barred by limitation. Fourth, what would be the effect of the filing of the written slatement by the defendant\n\nNo. 6 in thll year 1958 and the omission of defendant No. 7 to file any written statement to obtain partition of the properties in the event of the decree and the award being set aside.\n\nTlJ/:l High Court held that the appellant was a minor but the other parties were not minors.\n\nThe Hi~ Court held that the reference to the arbitration and the award thereon were void. The High Court held that !he decree of the Darul Khaza Court upon the award was not a nullity and the present suit should have been filed within three years of the appellant obtaining majority. _The High Court also held that the decree of _the Darul Khaza Cou.rt was not obtained by fraud. The High Court held that Abdul Hai asserted in the year 1927 that the Dargah and the Khankah properties were his personal properties _and from that date Abdul Hai asserted his title adverse to the appellant a.nd t.1ie other plaiQtiffs and the appellant and the other plaintiffs knew in 1927 of the adverse claim of Abdul Hai. Therefore, the suit was barred by limitation.\n\nThe minority of th~ appellant is a fact found both by the trial Court and the High Court. It is an admitted fact that the appellant's guardian was his brother Nooruddin at the time of the arbitration proceeding• aiid the time of the decree on the award.\n\nThe brother is not a lawful guardian under thie Mohammedan Law. The legal guardians are the father, the executor appointed by the father's will, the father's father and the executor appointed by the will of the father's father.\n\nNo other relation is entitled to theguardianship of the property of a minor as of right. Neither, the mother nor the brother is a lawful guardian tliough the father or the paternal grand father of the minor may appoint the mother, brother or any other person as executor or executrix. In default of legal guardians a duty of appointing guardian for the protection and preservation of th'e minor's property is of t!i-e court on proper application. It was held by this Court in Mohd. Amin & Ors. v.\n\nVakil Ahmed & Ors.(1 ) relying on the dictum in Imambdndi v, Mutsaddi(•) that where disputes arose relating to succesion to the estate of a deceased Mohammedan between his three sons, one of whom was a minor, and other relations, and a deed Qf settlement embodying an agreement in regard to the distribution of the properties belonging to the estate was executed by and betv.leen the parties, the eldest son acting as guardian for and on behalf of the minor son the deed was not binding on the minor son as his brother was not his legal guardian; 'a; nd the deed was void not only qua 1he minor, but with regard to all the parties including those who were sui juris. It is clear on the authority of this decision that_ the arbitration agrelement and the a:-vard and the decree\n\n(I) [1952]S.C.R, l!33.\n\n(2) 45 I.A. 73\n\nare all void in the present case by reason of lack of legal guardian of the appellant.\n\nThere is intrinsic evidence in the award that the patriles effected a settlement.\n\nCounsel on behalf of the respondent relied on a copy of an application in the Court of the Darul Khaza in the procegs for passing the decree upon the award in support of the contention that tl!e court appointed Nooruddin as the guardian of the apl lant. It is stated in the application that the defendant No. 3 ( ~1c) meaning thereby plaintiff No. 3 the present appellan! is a mmor and Nooruddin is the real brother and the appellant 1s under the guardianship of Nociruddin. The applicati?n was for permiion to file the suit. There is no order for appomtment of a guardian.\n\nFurtl:ler, the Court in appointing the guardian of property .of a minor is guided by circumstances for. the welfre of th~ mmor.\n\nThere is no justification to hold that N9oruddin was either the legal guardian or a guardian appointed by the Court.\n\nTht decree which was passed on the award appears on an exaniination of the pleadings and the decree itself that tl!e parties proceeded to have the decree on the basis of the award without any contest as and by way of mutual settlement. It will, appear from the decree that it was admitted by the parties that Abdul Hai was in possession of the Dargah and Khankah and that Abdul Hai alone was the Sajjadanasheen of the Khankah. The relinquishment of property by Nooruddin on behalf of the minor is not binding on the minor.\n\nThere was no legal sanction behild such compromise in the arbitration and in the proceedings resulting in a decree upon tlie award. There was no legal guardian.\n\nTht rights and interests of the minor were also not protected particularly when there was conflict of interest between th'e minor and Abdul Hai. The arbitration agreement, the award and the decree of the Darul Khaza Court on the award are therefore void.\n\nThe High Court held that the appellant's suit was barred by limitation by reason of knowledge of the appellant that Abdul Hai was in adverse possession since the year 1927 or 1928. In regard to the properties which the appellant claimed in the suit as liable to partition, it is established that all parties proceeded on the basis that Exhibits B-1 to B-10 in the award were not Matrooka properties but Dargah and Khankah properties. If, in fact, they are not Dargah and Khankah properties but Matrooka properties, these should be available to co-owners for partition unless there are legal impediments.\n\nThe estate of a dedeased Mohamedan uevolves on his heirs at the moment of his death.\n\nThe heirs succeed to the estate as tenants in common in specific shares. Where the heirs continue to hold the estate as tenants in common without\n\ndividing it and on of them subsequently brings a suit for recovery A of the share the pj:riod of !imitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or deniaf of title and Article 144 of Schedule I to the Limitation Act, 1908 would be the relevant Article.\n\nCounsel on behalf of the respondent submitted that there were two impediments to the appellant's claim for partition of the pro' perties. One was that the decree paSsed by the Court of Darul Khaza upon the award was not obtained by fraud and could not be set aside by reason of limitation. The other was that the appellant came to know in the year 1927 that Abdul Hai adversely chiiined properties as his own and therefore the appellant's claim was barred by limitation. The High Court held that the appellant was aware of the attachment of the personal and the Dargah and Khankah properties by the Government of the Nizam in the year 192 7 as also ire lease in the same year of the properties attached. The High Co;, rt' had that when parties had knowledge of the attachment of the properties it could not be postulated that they would have no knowledge of the contentions of Abdul Hai as to release of the Dargah and Khankah properties on the ground that those were not Dargah and Khankah but personal properties of Abdul Hai. Knowledge of release of properties would not amount to ouster of the appellant from the property or of abandonment of rights.\n\nThe evidence of the appellant was that in 1350 .i:batc Division 1)1 Cl [IS6~] DcG. J.& S. 576\n\n(3) I.LR. ~Q Cal. s%\n\nSection 18 of the Limitation Act, 1908 provides that when a ; A person h; aving a right to institute a suit has by means of fraud ' bqen kept from the knowledge of such. {ight or of the title on which it is founded, the time limited for instituting a suit against the person guilty of the fraud shall be computed from the time whlen the . fraud first became known to the person affected !hereby. In Rahimboy v. Turner( 1) Lord Hobhouse said \"When B a man has committed a fraud and has got property thereby it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of thO!; e facts which constitute the fraud, at a time which is too remote to allow him to bring the suit\". Therefore if the plaintiff desires to invoke the aid of section 18 of the Limitation Act he must• establish that there has been fraud and that by means. of such fraud he has been kept from the knowledge. of his right to sue or of the title wliereon it is founded.\n\nIn the present case, he have with reasonable diligence discovered it. There was active properties were Matrooka and not Dargah and Khankah. When Abdul Hai got the properties released by reason of the decision of the Government of the Nii.am in the year 1927 the properties became divisible among the appellant and his brothers and sisters.\n\nThe existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khenkah having full knowledge of the fact.\n\nIt was only in 1941 ,(1350 Fasli) that the appellant came to know of the Matrooka character of the properties.\n\nIt was then that the appellant also came to know that Abdul Hai had kiept the charac• ter of properties concealed from the parties and entirely misstated and misrepresented the character of the properties by misleading the parties and obtaining by consent an award and a decre.e thereon without any contest.\n\nThe cause of action for partition of properties is said to be a \"perpetualiy recurring: one\" See Monsharam Chakravarty & Ors.\n\nv. Ganesh Chandra Chakravartv & Ors. ( 2 ). In Mohammedan Law the doctrine of partial partition is not applicable because the heirs G are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of .every part of his estate. The shares of heirs under Mohamedan Law are definite and known before actual partition.\n\nTherefore on partition of properties blelonging to a deceased Muslim there is division bv metes and bounds in accordance with the specific share of each heir bleing already H deterinined by the law.·\n\n(!) n T.A. I\n\n(2) 17 C.W.N.521\n\n .. ·.\n\nJn the present case the suit is for partition of properties which were by consent of parties treated as Dargah and Khankah but which _were later discovered to be Matrooka properties in_ fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah prorties cannot stand and the entire !_)artition is to be re-opened by reason of fraud in the earlier proceedings.\n\nIn the present case, the overwhelming evidence is that because of the representation of Abdul Hai that he was the Sajjadanasheen and the properties marked Exhibits B-1 to B-10 were Dargah and Khankah properties, that all the parties treated the properties as Dargah and Khankah before the arbitrators and in the decreie upon the award.\n\nThe very fact that there was never any contest indicates that the compromise and settlement between the parties was on the basis that the properties wre Dargah and Khankah. It was absolutely within the knowledge of Abdul Hai as to what the true character of the properties was.\n\nThe other parties did not have any opportunity of knowing the same. Abdul Hai knew the real character, concealed the true character and suggested a different character and thereby mislead all the parties.\n\nAgain, when Abdul Hai approached the Government of the Nizam and got the properties released by asserting that they were not Dargah and Khankah properties in the year 1927.\n\nAbdul Hai did not inforn1 the same to any of the parties. The unmistakable intention of Abdul Hai all along was to enjoy the properties by stating these to .be Dargah and Khankah. When the parties came to kno_w the real character of the properties even then Abdul Hai was not willing to have partition. On these facts it is established that the fraud committed by Abdul Hai relates \"to matters which prima facie would be a reason for setting the judgment aside\".\n\nThat is the statement of law in Halsbury's Laws of Engfand, Third Edition, Volume 22, paragraph 1669 at page 790.\n\nFor these reasons we accept the appeal and set aside the judg- _ ment of the High Court and restore the judgment and decree of the trial court.\n\nThe appellant will be entitled to costs of this Court. The parties will pay and bear their own costs in the High Court.\n\nG.C Appeal allowed.", "total_entities": 94, "entities": [{"text": "SYED SHAH GHULAM GROUSE MOHIUDDIN AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "SYED SHAH GHULAM GHOUSE MOHIUDDIN AND ORS", "offset_not_found": false}}, {"text": "SYED SHAH AHMED MOIIIUDDIN KAMISUL QUADRI\n\n(DEAD) BY L. Rs. AND OTHERS", "label": "RESPONDENT", "start_char": 44, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "SYED SHAH AHMED MOHIUDDIN KAMISUL QUADRI (DEAD) BY L. Rs. AND OTHERS", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 136, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER*", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 153, "end_char": 167, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 359, "end_char": 379, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 18 and 144", "label": "PROVISION", "start_char": 381, "end_char": 395, "source": "regex", "metadata": {"linked_statute_text": "Limitation Act, 1908", "statute": "Limitation Act, 1908"}}, {"text": "s. 144", "label": "PROVISION", "start_char": 617, "end_char": 623, "source": "regex", "metadata": {"linked_statute_text": "Limitation Act, 1908", "statute": "Limitation Act, 1908"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 624, "end_char": 638, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 18", "label": "PROVISION", "start_char": 733, "end_char": 738, "source": "regex", "metadata": {"linked_statute_text": "Limitation Act, 1908", "statute": "Limitation Act, 1908"}}, {"text": "Shah Abdul Rahim", "label": "PETITIONER", "start_char": 1001, "end_char": 1017, "source": "ner", "metadata": {"in_sentence": "Shah Abdul Rahim wa.", "canonical_name": "Shah Abdul Rahim"}}, {"text": "Hyderabad", "label": "GPE", "start_char": 1064, "end_char": 1073, "source": "ner", "metadata": {"in_sentence": "S Sajfadnasheen of a Dargah and Khankah in Hyderabad."}}, {"text": "Abdul Hai Shah Abdur Rahim", "label": "OTHER_PERSON", "start_char": 1192, "end_char": 1218, "source": "ner", "metadata": {"in_sentence": "After his death in 1905 he was succeeded as Sajjadanasheen by his eldest , son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaming to the Dargah and Khankah."}}, {"text": "Abdur Rahim", "label": "PETITIONER", "start_char": 1410, "end_char": 1421, "source": "ner", "metadata": {"in_sentence": "The appellant who was Abdur Rahim's youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin.", "canonical_name": "Abdur Rahim"}}, {"text": "Nooruddin", "label": "OTHER_PERSON", "start_char": 1526, "end_char": 1535, "source": "ner", "metadata": {"in_sentence": "The appellant who was Abdur Rahim's youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin.", "canonical_name": "Nooruddin"}}, {"text": "Abdul Hai", "label": "PETITIONER", "start_char": 1653, "end_char": 1662, "source": "ner", "metadata": {"in_sentence": "The properties Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and.", "canonical_name": "Abdur Rahim"}}, {"text": "August 1, 1908", "label": "DATE", "start_char": 1817, "end_char": 1831, "source": "ner", "metadata": {"in_sentence": "The arbitrators gaye their awa'rd on August 1, 1908 partitioning the properties."}}, {"text": "August 13, 1908", "label": "DATE", "start_char": 1865, "end_char": 1880, "source": "ner", "metadata": {"in_sentence": "On August 13, 1908 there was a decree in the Darul Khaza Coust confirming the aforesaid award."}}, {"text": "Nizam's Government", "label": "ORG", "start_char": 2084, "end_char": 2102, "source": "ner", "metadata": {"in_sentence": "In 1927 Abdul Hai got an adjudication from the Nizam's Government that the Dargah and Khankah properties consisted only of two villages and that properties B-1 to B-10 were not Dargah and Khankah properties."}}, {"text": "24th Julv 1941", "label": "DATE", "start_char": 2411, "end_char": 2425, "source": "ner", "metadata": {"in_sentence": "The aprellant filed a suit on 24th Julv 1941 for setting aside the decree dated August 13, 1908, passed by the Darul_Khaza Court and for partition of the Matrooka properties left by his father including properties B-1 to B-10."}}, {"text": "Darulkhaza Court", "label": "COURT", "start_char": 3501, "end_char": 3517, "source": "ner", "metadata": {"in_sentence": "The High Court in appeal held : ( 1 J that the appellant was a minor and therefore reference to the arbitration and th.c award thereon were void; (2) that the decree passed by the Darulkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the prOjJerties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation."}}, {"text": "Nooruduin", "label": "OTHER_PERSON", "start_char": 4287, "end_char": 4296, "source": "ner", "metadata": {"in_sentence": "The relinquishment of property by Nooruduin on behalf of the minor was not binding on the minor whose interests\n\nv.cre not protected.", "canonical_name": "Nooruddin"}}, {"text": "Darul Khaza Court", "label": "COURT", "start_char": 4450, "end_char": 4467, "source": "ner", "metadata": {"in_sentence": "proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void. ["}}, {"text": "Limitation Act 1908", "label": "STATUTE", "start_char": 5144, "end_char": 5163, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Government of the Nizam", "label": "ORG", "start_char": 6412, "end_char": 6435, "source": "ner", "metadata": {"in_sentence": "If all parties proceeded upon a basis that these were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are re1toted to their position as heirs to the Matrooka property."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 7025, "end_char": 7030, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 7038, "end_char": 7052, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S 576", "label": "PROVISION", "start_char": 7765, "end_char": 7770, "source": "regex", "metadata": {"statute": null}}, {"text": "R. V. Pillai", "label": "LAWYER", "start_char": 9348, "end_char": 9360, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, R. V. Pillai and N. Nettar, for the appellants."}}, {"text": "N. Nettar", "label": "LAWYER", "start_char": 9365, "end_char": 9374, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, R. V. Pillai and N. Nettar, for the appellants."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 9397, "end_char": 9411, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for respondent No."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 9413, "end_char": 9427, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for respondent No."}}, {"text": "Swaranjit Sodhi", "label": "LAWYER", "start_char": 9432, "end_char": 9447, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for respondent No."}}, {"text": "V. A. Seyid Muhammad", "label": "LAWYER", "start_char": 9476, "end_char": 9496, "source": "ner", "metadata": {"in_sentence": "V. A. Seyid Muhammad a, nd S. P. Nayar, for respondent No."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 9503, "end_char": 9514, "source": "ner", "metadata": {"in_sentence": "V. A. Seyid Muhammad a, nd S. P. Nayar, for respondent No."}}, {"text": "Ray", "label": "JUDGE", "start_char": 9585, "end_char": 9588, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nRay, J.-This is an appeal by certificate against the judgement dated 15 Dec, bmber, 1965 of the Andhra Pradesh High Court dismissing the appellants' suit and setting aside the decree in favour of the appellant passed by the Additional Chief Judge, B City Civil Court, Hyderabad on 18 October, 1958."}}, {"text": "Shah Abdul Rahim", "label": "PETITIONER", "start_char": 9885, "end_char": 9901, "source": "ner", "metadata": {"in_sentence": "Shah Abdul Rahim a resident of the city of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghousie Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum.", "canonical_name": "Shah Abdul Rahim"}}, {"text": "Ghulam Nooruddin", "label": "OTHER_PERSON", "start_char": 10005, "end_char": 10021, "source": "ner", "metadata": {"in_sentence": "Shah Abdul Rahim a resident of the city of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghousie Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum."}}, {"text": "Abdul Razak", "label": "OTHER_PERSON", "start_char": 10023, "end_char": 10034, "source": "ner", "metadata": {"in_sentence": "Shah Abdul Rahim a resident of the city of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghousie Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum."}}, {"text": "Ghulam Ghousie Mohiuddin", "label": "OTHER_PERSON", "start_char": 10039, "end_char": 10063, "source": "ner", "metadata": {"in_sentence": "Shah Abdul Rahim a resident of the city of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghousie Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum."}}, {"text": "Kamarunnissa Begum", "label": "OTHER_PERSON", "start_char": 10082, "end_char": 10100, "source": "ner", "metadata": {"in_sentence": "Shah Abdul Rahim a resident of the city of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghousie Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum.", "canonical_name": "Kamarunnissa Begum"}}, {"text": "Badiunnissa Begum", "label": "OTHER_PERSON", "start_char": 10105, "end_char": 10122, "source": "ner", "metadata": {"in_sentence": "Shah Abdul Rahim a resident of the city of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghousie Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum.", "canonical_name": "Badiunnissa Begum"}}, {"text": "Syed Shah Abdul Rahim", "label": "OTHER_PERSON", "start_char": 10335, "end_char": 10356, "source": "ner", "metadata": {"in_sentence": "The sons and the daughters entered into two agreements in th'e month of July, 1908 and appointed _arbitrators to partition the Matrooka properties of Syed Shah Abdul Rahim."}}, {"text": "1 August, 1908", "label": "DATE", "start_char": 10362, "end_char": 10376, "source": "ner", "metadata": {"in_sentence": "On 1 August, 1908 the arbitrators made an Award partitioning the properties."}}, {"text": "13 August, 1908", "label": "DATE", "start_char": 10439, "end_char": 10454, "source": "ner", "metadata": {"in_sentence": "On 13 August, 1908 there was a decree in the Darul Khaza Court, Hyderabad confirming ilie Award of 1 August, 1908."}}, {"text": "Darul Khaza Court, Hyderabad", "label": "COURT", "start_char": 10481, "end_char": 10509, "source": "ner", "metadata": {"in_sentence": "On 13 August, 1908 there was a decree in the Darul Khaza Court, Hyderabad confirming ilie Award of 1 August, 1908."}}, {"text": "High Court of Hyderabad", "label": "COURT", "start_char": 10815, "end_char": 10838, "source": "ner", "metadata": {"in_sentence": "An appeal was preferred to the High Court of Hyderabad."}}, {"text": "Abdul Hai", "label": "PETITIONER", "start_char": 10875, "end_char": 10884, "source": "ner", "metadata": {"in_sentence": "During the pendency of the appeal Abdul Hai died in 1950 and his0 .wgal\n\nrepresentatives were brought on the record of the suit in the month of February, 1952.", "canonical_name": "Abdur Rahim"}}, {"text": "Additional Chief Judge, City Civil Court, Hyderabad", "label": "COURT", "start_char": 11182, "end_char": 11233, "source": "ner", "metadata": {"in_sentence": "On\n\n18 October, 1958 the Additional Chief Judge, City Civil Court, Hyderabad decreed the suit in favour of the appellant and cancelled the decree of the Darul Khaza Court dated 13 August,\n\n1908."}}, {"text": "Andhra Pradesh Hjgh Court", "label": "COURT", "start_char": 11366, "end_char": 11391, "source": "ner", "metadata": {"in_sentence": "On appeal the Andhra Pradesh Hjgh Court on 15 December, 1965 set aside the decree passed by the Additional Chief Judge."}}, {"text": "Abdul Rahim", "label": "PETITIONER", "start_char": 11511, "end_char": 11522, "source": "ner", "metadata": {"in_sentence": "The undisputed facts are these : When Abdul Rahim died in 1905 Abdul Hai the eldest son was major.", "canonical_name": "Abdur Rahim"}}, {"text": "Qamarunnissa Begum", "label": "OTHER_PERSON", "start_char": 11892, "end_char": 11910, "source": "ner", "metadata": {"in_sentence": "The parties to the arbitration agreements were Abdul Hai, Ghulam Nooruddin, Abdul Razak the appellant represented by his guardian Nooruddin, Qamarunnissa Begum and Badiunnisa Begum.", "canonical_name": "Kamarunnissa Begum"}}, {"text": "Badiunnisa Begum", "label": "OTHER_PERSON", "start_char": 11915, "end_char": 11931, "source": "ner", "metadata": {"in_sentence": "The parties to the arbitration agreements were Abdul Hai, Ghulam Nooruddin, Abdul Razak the appellant represented by his guardian Nooruddin, Qamarunnissa Begum and Badiunnisa Begum.", "canonical_name": "Badiunnissa Begum"}}, {"text": "Qamarunnisa Begum", "label": "OTHER_PERSON", "start_char": 12847, "end_char": 12864, "source": "ner", "metadata": {"in_sentence": "The award was made a rule of court within a short time upon a plaint filed by Nooruddin, Abdul Razak, the appellant represented by Nooruddin as the guardian and the two sisters Qamarunnisa Begum and Badiunnisa Begum.", "canonical_name": "Kamarunnissa Begum"}}, {"text": "Abdul .tlai", "label": "RESPONDENT", "start_char": 12905, "end_char": 12916, "source": "ner", "metadata": {"in_sentence": "The defendant was Abdul .tlai.", "canonical_name": "Abdur Rahim"}}, {"text": "Syed Shah Nooruddin", "label": "OTHER_PERSON", "start_char": 12962, "end_char": 12981, "source": "ner", "metadata": {"in_sentence": "Syed Shah Nooruddin a pious person of Hyderabad had his Xhankah situated at Nampalli."}}, {"text": "Nampalli", "label": "GPE", "start_char": 13038, "end_char": 13046, "source": "ner", "metadata": {"in_sentence": "Syed Shah Nooruddin a pious person of Hyderabad had his Xhankah situated at Nampalli."}}, {"text": "Khankah", "label": "OTHER_PERSON", "start_char": 13602, "end_char": 13609, "source": "ner", "metadata": {"in_sentence": "After the death of Abdur Rahim, Abdul Hai beame the Sajjadanasheen and was having control over the Dargah and Khankah.", "canonical_name": "Khankah"}}, {"text": "Khankah Abdur Rahim", "label": "OTHER_PERSON", "start_char": 13745, "end_char": 13764, "source": "ner", "metadata": {"in_sentence": "Apart from the property attached to the Dargah and Khankah Abdur Rahim' left personal Mati:ooka properties."}}, {"text": "Abdul Hai", "label": "RESPONDENT", "start_char": 14251, "end_char": 14260, "source": "ner", "metadata": {"in_sentence": "The decree recited that the properties marked with the letter 'F' in the pla, n annexed to the award were Khankah and Dargah Shariff properties in th'e possession of the defendant Abdul Hai for meeting the expenses of the Khankah and no one has any right or claim over the property 'at present' or 'in future'.", "canonical_name": "Abdur Rahim"}}, {"text": "Sajjaaanasheen", "label": "OTHER_PERSON", "start_char": 16361, "end_char": 16375, "source": "ner", "metadata": {"in_sentence": "Tht letter was held by the trial Court to indicate that Abdul Hai\n\nnew that the property was the property of his father which he inherited along with his brothers and sisters and i, n spite of such\n\nknowledge and belief he caused it to be represnted before the :1rbitrators that the property belongeP. to the Dargah and that the ; ame was in his possession as Sajjaaanasheen.", "canonical_name": "Sajjaaanasheen"}}, {"text": "13 August, 1938", "label": "DATE", "start_char": 16500, "end_char": 16515, "source": "ner", "metadata": {"in_sentence": "The trial Court further held that the appellant came to know the real state of affairs from the letter of Abdul Hai dated 13 August, 1938 and therefore the suit was not barred by limitation."}}, {"text": "Dargah", "label": "OTHER_PERSON", "start_char": 17313, "end_char": 17319, "source": "ner", "metadata": {"in_sentence": "Secnd, whether there was proof that at the time of the arbitration agreement and the award Abdul Hai made a fraudulant and false representation :o his brothers and sisters and made them believe that the pror\"rties belonging to the Sajjadanasheen were the properties of Dargah and Khankah which were not partible and by repreSentation and fraud prevented the partition of those properties."}}, {"text": "Sajjadanasheen", "label": "OTHER_PERSON", "start_char": 17555, "end_char": 17569, "source": "ner", "metadata": {"in_sentence": "whether the appellant had knowledge that Abdul Hai had clairrled the properties as the ancestral properties of the Sajjadanasheen earlier than the time when the appellant said he had knowlec!ge and whether the suit was barred by limitation.", "canonical_name": "Sajjaaanasheen"}}, {"text": "Darul Khaza", "label": "JUDGE", "start_char": 20867, "end_char": 20878, "source": "ner", "metadata": {"in_sentence": "Counsel on behalf of the respondent relied on a copy of an application in the Court of the Darul Khaza in the procegs for passing the decree upon the award in support of the contention that tl!e court appointed Nooruddin as the guardian of the apl lant."}}, {"text": "Nociruddin", "label": "OTHER_PERSON", "start_char": 21239, "end_char": 21249, "source": "ner", "metadata": {"in_sentence": "is a mmor and Nooruddin is the real brother and the appellant 1s under the guardianship of Nociruddin."}}, {"text": "N9oruddin", "label": "OTHER_PERSON", "start_char": 21519, "end_char": 21528, "source": "ner", "metadata": {"in_sentence": "There is no justification to hold that N9oruddin was either the legal guardian or a guardian appointed by the Court.", "canonical_name": "Nooruddin"}}, {"text": "Mohamedan", "label": "OTHER_PERSON", "start_char": 23170, "end_char": 23179, "source": "ner", "metadata": {"in_sentence": "The estate of a dedeased Mohamedan uevolves on his heirs at the moment of his death."}}, {"text": "Article 144", "label": "PROVISION", "start_char": 23626, "end_char": 23637, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I to the Limitation Act, 1908", "label": "STATUTE", "start_char": 23641, "end_char": 23679, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Abdul Hai", "label": "LAWYER", "start_char": 26252, "end_char": 26261, "source": "ner", "metadata": {"in_sentence": "The High Court relied on Exhibit A-38 a letter dalled 19 October, 1927 writteµ by the appellant to Abdul Hai to impute knowledge of the attachment and release of the properties.", "canonical_name": "Abdur Rahim"}}, {"text": "1'9 October, 1927", "label": "DATE", "start_char": 26920, "end_char": 26937, "source": "ner", "metadata": {"in_sentence": "This letter dated 1'9 October, 1927 does not at all have the effect of establishing that the appellant had knowledge of any adverse claim of the appellant."}}, {"text": "Sheikh Abdur Rahim", "label": "OTHER_PERSON", "start_char": 28244, "end_char": 28262, "source": "ner", "metadata": {"in_sentence": "Thie letter of Abdul Hai was written in answer to an application made about that time to the Government of the Nizam by one Sheikh Abdur Rahim a tenant against whom Abdul Hai had filed a suit for recovery of rent."}}, {"text": "Abdur Hai", "label": "PETITIONER", "start_char": 28407, "end_char": 28416, "source": "ner", "metadata": {"in_sentence": "Abdur Rahim made an allegation that the propertiles in respect of which Abdur Hai filed a suit were Dargah and Khankah properties.", "canonical_name": "Abdur Rahim"}}, {"text": "Nizam", "label": "OTHER_PERSON", "start_char": 28697, "end_char": 28702, "source": "ner", "metadata": {"in_sentence": "The Nizam in the month of April, 1927 appointed the Secretary of the Ecclesiastical Department and the Commissioner of Police to enquire and report as to which of the properties were attached to the Dargah and which were personal private properties."}}, {"text": "28 December, 1927", "label": "DATE", "start_char": 29094, "end_char": 29111, "source": "ner", "metadata": {"in_sentence": "The Ecclesiastical Department by Letter dated 28 December, 1927 held that only the villages Debser and Sangvi were found to be under the Dargah."}}, {"text": "Debser", "label": "GPE", "start_char": 29140, "end_char": 29146, "source": "ner", "metadata": {"in_sentence": "The Ecclesiastical Department by Letter dated 28 December, 1927 held that only the villages Debser and Sangvi were found to be under the Dargah."}}, {"text": "Sangvi", "label": "GPE", "start_char": 29151, "end_char": 29157, "source": "ner", "metadata": {"in_sentence": "The Ecclesiastical Department by Letter dated 28 December, 1927 held that only the villages Debser and Sangvi were found to be under the Dargah."}}, {"text": "3 January, 1928", "label": "DATE", "start_char": 29290, "end_char": 29305, "source": "ner", "metadata": {"in_sentence": "All properties of the parties which had been attached by the Nizam were released by letter dated 3 January, 1928 excepting the two villages."}}, {"text": "Abdul. Hai", "label": "PETITIONER", "start_char": 29334, "end_char": 29344, "source": "ner", "metadata": {"in_sentence": "Abdul.", "canonical_name": "Abdur Rahim"}}, {"text": "16 January, 1928", "label": "DATE", "start_char": 29361, "end_char": 29377, "source": "ner", "metadata": {"in_sentence": "Hai by letter dated 16 January, 1928 to the Government of the Nizam stated that the properties marked Exhibits B-1 to B-10 in the award and the decree of the Court of Darul Khaza did not belong to the Dargah and Khankah."}}, {"text": "11 November, 1927", "label": "DATE", "start_char": 29626, "end_char": 29643, "source": "ner", "metadata": {"in_sentence": "Abdul Hai further pointed out that the Nizam by a firman dated 11 November, 1927 had issued orders saying that according to the opinion of the Council the Government's supervision should ble lifted from the 'maash' referring thereby to the properties which had been attached by the Nizam and the same should be given over into the possession of Abdul Hai."}}, {"text": "5 January, 1939", "label": "DATE", "start_char": 29943, "end_char": 29958, "source": "ner", "metadata": {"in_sentence": "The other letter dated 5 January, 1939 from the Government of the Nizam stated that only two villages were held to be Dargah and the Government of the Nizam had made thorough enquiries and held that there was no other Dargah and Xhankah properties and the question could not be re-opened."}}, {"text": "Westbury", "label": "JUDGE", "start_char": 32535, "end_char": 32543, "source": "ner", "metadata": {"in_sentence": "The principle can be stated in the words of Westbury, .L.C. in Rolfe v. Gregory(') \"when the remedy is given on the ground of fraud, it is governed by this important principle, that the right of the party defrauded is not affected by lapse of time, or generally speaking by anything done or omitted to be done so long as he remains, without any fault of his own, in ignorance of the fraud that has been committed\"."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 32944, "end_char": 32963, "source": "ner", "metadata": {"in_sentence": "This decision was referred to by thlo Calcutta High Court in Biman Chandra) Datta v. Promotha Nath Ghose(') where the dictum o{ Westbury; L.C. was restated by holding that where a plaintiff had been kept from knowledge, by the defendant, of the circumstances constitut ing the fraud, the plaintiff could rely upon section 18 of the Limitation Act to escape from the bar of limitation."}}, {"text": "section 18", "label": "PROVISION", "start_char": 33220, "end_char": 33230, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 33238, "end_char": 33252, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 576", "label": "PROVISION", "start_char": 34462, "end_char": 34468, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 34492, "end_char": 34502, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 34510, "end_char": 34530, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 18", "label": "PROVISION", "start_char": 35292, "end_char": 35302, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 35310, "end_char": 35324, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Matrooka", "label": "OTHER_PERSON", "start_char": 35604, "end_char": 35612, "source": "ner", "metadata": {"in_sentence": "There was active properties were Matrooka and not Dargah and Khankah."}}, {"text": "Government of the Nii.am", "label": "ORG", "start_char": 35717, "end_char": 35741, "source": "ner", "metadata": {"in_sentence": "When Abdul Hai got the properties released by reason of the decision of the Government of the Nii.am in the year 1927 the properties became divisible among the appellant and his brothers and sisters."}}, {"text": "Khenkah", "label": "OTHER_PERSON", "start_char": 36113, "end_char": 36120, "source": "ner", "metadata": {"in_sentence": "There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khenkah having full knowledge of the fact.", "canonical_name": "Khankah"}}]} {"document_id": "1971_3_762_773_EN", "year": 1971, "text": "BACHAN SINGH & ORS. v.\n\nSTATE OF PUNJAB & ORS.\n\nFebruary 18, 1971\n\n[S. M. SIKRI, CJ., G. K. MITTER, K. S. HEGDE, A. N. GROVER\n\nAND P. JAGANMOHAN REDDY, JJl\n\nPunjab Deve/opmen~ of Damaged Areas Act (10 of 1951 )-If viola- Jive of Arts. 14, 19(1)(/) and (g) and 31(2) of the Constitution.\n\nI.n order to deal with extensive damage to property and to clear the debris and refuse caused by communal riots in 1947 in Punjab, statutes were enacted, giving suitable powers the last of which is the Punjab Development of Damaged Areas Act, 1951.\n\nUnder s. 2(d) of the Act the State Government declared by a Notification that the entire area within the walled city of Amritsar to be damaged area. The Improvement Trust formulated certain schemes wh oh were sanctioned by the State Government.\n\nThereafter, notice was issued to the first petitioner to vacate the shop in his possession and to the second and third petitioners to appear before the Land Acquisition Collector and explain the interest which they had in the premi'es in their occupation sought to be acquired.\n\nIn a petition under Art. 32, on the questions whether (I) the Act is violative of Art. 14, because (a) the power to declare an area as damaged is arbitrary, and (b) the property can be acquired at the di!c'retion of the TrusJ either under the Punjab Town Improvement Act, 1922, or under the Act, compensation payable under the formeT Act being more advantageous;\n\n(2) the ,-estrictions imposed by the Act .-1.n~ 1111reasonable , al'.d violative of Art. 19(fl(fJ and lg): cir.d I~) t'.. ..o•lton and compensation provisions of the Act violate Art. 31\\l).\n\nHELD: (!) There is no violation of Art. 14.\n\n(a) The purpose of the Act is for framing and executing schemes of\n\nimprovemen~ in urban areas where damage has been caused to buildings by wholesale and serious rioting an.d hence, the power conferred on the F State Government to declare an area damaged area is not arbitlrary, un .. guided or uncanalised. If the whole of the walled city of Amritsar is a damaged area and part thereof is equally a damaged area. Therefore, it is not difficult to determine what is damaged area and the Notification in the present case is not vague. [773 A-DJ\n\n(b) No option is given to acquire the area either under the 1951 Act or Punjab Town Improvement Act accordin~ to the discretion f t.he m- G pro1ement Trust. The 1951-Act only provides that the Trost in frammg a scheme may provide for all or any of the matters mentioned in s. 28 of the Punjab 1 own Improvement Act, and that any sche.me already framed under the latter Act is deemed to have been framed under 1951-Act.\n\n[771 A-BJ\n\n(2) The provisions of the Act are reasonable and are des.igned to serve the interest of the general public by executmg schemes m . a planned H m1 11ner for the improvement of the damaged areas of the city and .the restrictions imposed are protected by Art. 19(5) and (6) of the Const1tu- 1ion. (769 G-H)\n\nBACHAN SINGH v, PUNJAB\n\n76:J\n\n(a) Pason; who are affected by a scheme are given an opportunity to file their objections which have to be given due consideration by I.be' JnoFrovement Trust before finalising the scheme, and by State Government\n\nbefore sanctioning the scheme.. They have also the right to take .part in. the proceeJing; before I.be Collector in the inquiry into claims for com pensation. They are given notice of the award and are given a right to have their objections to the award fixing the compenSation or the area demarcated and other matters specified in s. 20 referred to a nibunal.\n\nThe award, or any order passed by the Tribunal, is deemed to be a judg\n\nmem and decree under the Civil Procedure Code, and affected persons have a right of appeal to the High Court and to this Cpurt . . [770 BF]\n\n(b) The fact that there are some newly built buildings which are not damaged would not make the provisions of the Act unreasonnble nor justify an impediment beinjl placed to a scheme which is designed to achieve a social purpose and 1s for I.be public goOd [770 G-H]\n\n ( c) The persons in occupation of shops have been assured in writing by the Improvement Trust of alternative 11ccommodation and allotment of pucca shops as soon as possible. [771 HJ\n\n( 3) The compensation payable is neither inadequate nor illusory but on the other hand it is not less than the market value and may even be more. There is thus no violation of Art. 31(2) of the Constitution.\n\n[770 G 772 BJ\n\n(a) The compensation payable to persons interested under the Act is mdre in ihl! nature of a profit sharing scheme in that the minimum that they would be entitled for payment is the market value of the property which has come under the scheme and may even be more depending upon the income of the scheme and the exr, enditure incurred therefor. The com•\n\npensation js determined on princip es similar to those under the Land Acquisition Act or the Punjab Town Improvement Act. [770 B-C. HJ\n\n(b) lt cannot be contended that compensation is not payable for the buildings but only for the land, because. the definition of land under the Act is similar to that in s. 3(a) of the Land Acquisition Act and is comprehensive enough to include buildings also. [771 DJ\n\n(c) The finalisation of the scheme will take time but under s. 12(2\\ the submission of the scheme by the Trust is not to be later than threo years. Therefore, it cannot be urged that the final compensation is not immedialtly payable and that it may take several yeors without any pay ment of inte1est during that time.\n\nIn any case, the scheme is for the benefit of all those who havt properties ia the areas which are covered by\n\nthe scheme and is on a profit sharin~ basis. There is I.bus no hardship or disadvantage. [771 E-OJ\n\nORIGINAL JuR1smcr10N : Writ Petition No. 1 of 1970.\n\nPetition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.\n\nJ. P. Goyal and Sobhag Mal Jain, for the petitiQliers.\n\nH Bishan Nurain and R. N. SdChthey, for respondent No. 1.\n\nBishan Narain, B. Datta, J. B. Dadilchanji, 0. C. Mathur and Ravinder Narain, for respondent Nos. 2 and 3.\n\n16'4 :-SUl'REME COURT REPORTS\n\n[1971] 3 S.C.R.\n\nThe Judgment of the Court was delivered by\n\nP. Jaganmohao Reddy, J.\n\nThe three Petitioners who are residents of Amritsar have filed this Petition under Art. 32 of the 'Constitution, challenging the Punjab Development ot Damaged Areas Act IO oi 1951 (hereinafter called 'the Act') as being violative of Art 14, 19( 1) (f) & (g) and 31 (2) of the Constitution of India.\n\nThe first Petitioner carries on a Bakery business in a shop in B.azar Ja!lianwala near Chowk Phowara of which he is a tenant.\n\nThe second Petitioner is the owner of a building consisting of a number of shops situated in Bazar Bikanarian while the third Petitioner is a tenant in occupation of a residential house situated in Bazar Sodhian.\n\nOn 26th June 1962 the State Govt. declared by a Notification under Sec. 2(d) of the Act the entire area within the walled city of Amritsar to be a damaged area.\n\nIn pursuance of the said Notification a number oi schemes were formulated by the Improvement Trust of Amrits< r.\n\nTwo of such Schemes with which the Petitioners are concerned related to ( 1 ) Chowk Phowara .cum Jallianwala Bagh and (2) Ghantaghar.\n\nThe former Scheme wus sanctioned by the State Govt., by a Notification dated the 17th July 1968, while the Ghantaghar Scheme was sanctioned by Notification of the iOth October 1969.\n\nPursuant to these Notifications a Nottce was issued on 26th November 1969 to the first Petitioner whose shop is covered by the Chowk Phowara cum Jallianwala Bagh Scheme to vacate the premises in his possession.\n\nA notice was also given to PetitiQllers 2 & 3 in respect of the buildings owned or occupied by them in the Ghantaghar area Scheme, asking them to appear before the Land Acquisition Collector-the 3rd Respondent and explain the interest which they have in the respective premises sought to be acquired.\n\nIt is contended by the Petitioners :-(1) (a) that Sec. 2(d) r shall assess the market value of the structures at. the time of delivery of possession of the land to the Trust and deduct from such value the cost of demolishing them aind removing the. material from the site.\n\nBACHAN SINGH v. PUNJAB (laganmohan Reddy, !.) 7 69\n\n( 4) The. total compensation, Jess any deductions that may be necessary on .account of the amunts, if any, payable under sub-sect10n (3), shall be paid to the various persons interested in proportion to the terests held by them as determined by the Collector under sec. ll(c).\n\nProvided that the amount paid to any person shall not be less than the market value of his interest as determined by the Collector under Sec. 11 ( d) minus the cost of demolitioo and removal incurred by the Trust.\n\nSec. 16 : From the amount placed at his disposal under section 15 . the Collector shall, according to the award, tender payments to the persons interested and make payments to those who agree to receive the same, with or without protest.\n\nSections 19 to 21 provide that the Trust or persons interested who receive compensatiqn under protest, may require the Collector to make a reference to the Tribunal in respect of the measurement of the hnd, amount of compensation, the persons to whom it is payable, its apportionment among persons interested. A statement of the case is also required to be draWl!I up by the Collector on reference, and a notice to be given by the Tribunal to the persons interested. Under Sec. 23 the Tribunal has power to either maintain or modify the award passed by the Collector and order payment to the persons entitled to it, provided that it shall not questiOll the amounts notified under Sec. 12. The award passed by the \"1\"ribunal is deemed to be a decree and the statement of the grounds therefor a Judgment within the meaning of sub-section (2) a,:id\n\n(9) of Section 2 of the Civil Procedure Code; and every award and order of the Tribunal is enforceable by the Court of the Senior Sub Judge within the local limits of its jurisdiction as if it were a decree made or passed by it. While Section 24 makes provision for the award of costs, Section 25 does not require the Trust to pay interest on any amount awarded as compensation and tendered in accordance with the order of the Collector.\n\nThe provisions of the Act it may be noticed clearly indicate that they are reasonable and are designed to serve the interest of the general public namely to execute schemes in a planned manner for the improvement of the damaged areas of the city of Amritsar.\n\nThey do not in any way violate the provisions of Art. 19(1 )(f) & ( g) . This Court has in no IJill.Certain terms laid down the test for ascertaining reasonableness of the restrictions on the rights guaranteed under Art. 19 to be determined by a reference to the nature of the right said to have been infringed, the purpose of the restrictions sought to be imposed, the urgency of the evil and the necessity\n\n-- .\n\nto rectify or remedy it-all of which has to be . balanced with the social welfare or social purpose sought to be achieved. The right of the individual has therefore to be sublimated to the larger interest of the general public.\n\nApplying this test it will be seen that persons who are affected by the Scheme are given an opportunity to file their objections which have to be given due consideration by the Trust before finalising the scheme. Their objecti<¥1S are further considered by the Govt. before sanctioning the scheme.\n\nThey have also a right to take part in the proceedings before the Collector in the enquiry into claims, for compensation, and are gi\\ren nNice of the awai; d made by the Collector.\n\nThe compqnsation payable to them is. more in the nature of a profit sharing scheme in that the minimum)hat they would be entitled for payment i~-the tflarket value of the property which has come under the scheme and may even be entitled to something more depending upon the income'of the scheme and the expenditure incurred therefor. The total amount of compensation for any land so acquired under Sec . . 13(2) is the difference between the income of the scheme which\n\nis to include the estimated value of the buildings and the material thereon that remains to be sold, the profits on the plots sold and the other source of the income of the scheme as notified in the statement under Sec. 12, subject as we have pointed out earlier to the compensation in any case not being less thain the market value\n\nof his interest as determined by the Collector under Sec. l1 ( d )\n\nmus the cost of the demolition and removal incurred by the Trust.\n\nThe persons interested are further given a right to have their objections to the award fixing compensation, the area of the land demarcated and other matters as specified in Sec. 20 referred to the Tribunal.\n\nThe award or any order passed, by the Tribunal being deemed to be a Judgment and a decree under the Civil Procedure Code, the affected persons have therefore right of appeal provided under that Code, which will give the main opportunity .F to go up to the High Court and even to the Supreme Court.\n\nThe fundamental rights to acquire, hold or dispose property or to carry on any occupation, trade or business guaranteed under Art. 19( 1) (f) & (g) is subject to the restrictions contained in clauses ( 5) & ( 6) of the said Article.\n\nThe Act in our view complies substantially if not abundantly with the restrictions imposed on the exercise of the said fundamental rights.\n\nIt is then contended that some buildings in these areas are newly build or that some of them are not damaged and hence the restriction is unreasonable but in our view this alone does not in any way justify an impediment being placed for a scheme which\n\nis designed to achieve a social purpose and is for the public good. H The compensation payable under the Act is 'also determined on ptjnciples similar to those under the Land Acquisition Act or the Punjab Town Improvement Act.\n\nThere is however no justification\n\nBACHAN SJNOH v. PUNJAB (Jaganmohan Reddy, J.) 771\n\nin the submission that option is given to acquire tlie area either under the Act or under the Punjab Town Improvement Act according to the discretion of the Trust which is without guide-Jiines and arbitrary.\n\nThis argument is devoid of force because what Section 3 empowers is that the Trust in framing a scheme may provide for all or any of the matters mentioned in Section 28 of the Punjab Town Improvement Act. It further declares that any scheme already framed under the Punjab Town Improvement Act is deemed to have been framed under the Act. This is far from saying that a discretion is given to the Trust to frame a cheme either under the provisions of the Act or under the provisions of the Punjab Town improvement Act or that the provisions of the latter Act are more advantageous in the matter of compensati0in or in respect of any other matter. The section merely incorporates by reference some of the provisions of the other Act and is also an enabling one. There is also no validity in the CQDtention that compensation is not payable for the buildings but only for the land because the definition of land under the Act is similar to that ooder Sec, 3 (a) of the Land Acquisition Act r.nd is comprehensive enough to include buildings also.\n\nIt is next urged that compensation so determined is not immediately payable because under the provisions of the Act the final compensation will only be deteed after the scheme is submitted and sanctioned by the Govt. which may take several years and also there is a prohibition aainst payment of interest on the amount of compensation ~1ke that provided under the provisions of the Land Acquisition Act. It is true that the finalisation of the scheme will take time but under the provisions of sub-sec ( 2) CJ( Sec. 12 the submission of the Scheme by the Trust is not to be later than 3 years which does not mean necessarily that it will take 3 years and may even take less if not obstructed by persons afl; ected. In any case as we have said where the scheme is for the .llefit of all those who have properties in the areas which are covered by the scheme and is on a profit sha ring basis, there is no hardship or disadvamtal!e--particularly when the Petitioners as we shall point out presently are assured of alternative accommodation and the allotment of newly built shops under the scheme.\n\nThough the actual schemes are not befor\\I us, it is stated in the counter of Respondent No. 2 the Chairman of the Amritsar Improvement Trust that the Petitioners have been assured in writing by the Trust that allotment of pacca shops as so.Jn as H the commercial building in Dharam Singh Market which is being constructed at an estimated cost of Rs. 26 lakhs is completed. lin fact Ahata Bishan Dass and the adjoining scheme areas are ready. In the meanwhile many of the persons who have applied\n\nfor alternate accommodation have for the time being been accommodated by the Trust in the stalls recently set up in Kesribagh in the immediate vicinity of the Trust office. Though the Petitioners 1 and 3 have not applied for alternative accommodation they have been assured that they will be treated alike with the said displaced occupiers of shops in case they apply for alternative accommodation.\n\nIn so far as the petitioner No, 2 is concerned it is alleged that he is not an occupier of the building, as such there is illO question of an alternative accommodation being given to him but this matter will have to be decided under the provisions of the Act. Be that as it may in fact the Chairman of the Amritsar Improvement Trust has appended to the counter a letter addressed to one Inder Singh Arora who has a shop in Bazar Jallianwala in Amritsar and who is also similarly situated like the petitioners. In that letter of 6-1-1970 he has stated as follows :-\n\n\"Reference your discussion with the undersigned.\n\nIt has been decided to offer you accommodation on the lines of commitments made by the Trust in High Court n letters Patent Appeal No. 187 of 1969 (Mulk Raj & Others Vs. Trust) i.e. as soon as m mercial buddings in Dharam Singh Market, Ahata Bishan Dass and the adjoining Scheme areas are ready, the Trust would give preference to the .oustees from the scheme area ( Chowk Phowara to J allianwala Bagh in Main Bazar and other Markets) who are 5 years old to occupy shops of their choice at the rent which is fixed by the Trust for the particular shop.\n\nThe rOi!lt fixed by the Improvement Trust may be the highest that can be fetched in the Market. At that rent the tenants may exercise their option to get tenancy . rights in preference to others and in case they refuse to take the shops on rent so fixed by the Trust, the same would be given to others\"\n\n These assur3j!lces are commitments and would equally apply to the Petitioners. We cannot envisage a more reasonable and fair treatment accorded to the persons who have been displaced as a result of, the Improvement Schemes. The petitioners in spite of all these assurances have taken an unreasonable attitude in litigating and holding up a scheme that is beneficial for all those affected in the damaged areas by the two impugned schemes. In our view the compensation payable is neither inadequate nor illusory but oo the other hand is not less than the market value and may even be more. There is therefore no violation of Art. 31{ 2) of the Constitution.\n\nA •\n\nBACHAN SINGH v. PUNJAB (laganmohan Reddy, J.) 773\n\nThe further contention that Sec. 2 ( d) is discriminatory or \"9gue in that it does not indicate the criteria for determining what is a damaged area appears to us to be without force. We have seen the purpose for which the Act was passed by the Legislature which leaves little doubt that it was the damage caused by wholesale and serious rioting to buildings in certain urba.n areas in the State of Punjab and particularly in the area within the walled city of Amritsar which necessitated the framing and execution of schemes of improvement in those areas. In so far as the present petition is concerned it relates to two of the areas within the walled city of Amritsar. It is therefore not difficult to determine what is a damaged area for, if the whole of the walled city of Amritsar is a damaged area, any part thereof is equally a damaged area.\n\nThere is nothing arbitrary nor is the power conferred on t)le State Govt., unguided or un-canalised nor for that matter can it be said that the Notification issued on the 26th Jooe 1962 is vague.\n\nIn so far as the contention that the impugned Notification sanctioning the two schemes are void as the power under Sec. 5 of the Act wasxhausted because the Govt. had already exercised its power when it sanctioned Dharam Singh Market Scheme, the learned Advocate has inot chosen to address any arguments or to substJntiate that contention.\n\nAs such we find it unnecessary to deal with it.\n\nIn our view none of the objections are sustainable either on the ground of discriminativer\n\ngenerall} all cortceivable contingencies. Proper balance has to be maintained be1-n the coofficting claims of the employer and the employee without jeopardising the larger interests of industrial peace and progress.\n\n[780 DJ.\n\nThere was no evidence to conclude that the management lost confidence in the wo1kman. If the workman is entitled as a general rule to be reinstated after his wrongful dismissal is set aside apd on the facts if is not poss; ble to find cogent material on which the establishment can genuinely be considered to have lost confidence in the integrity of the workman. he\n\nA 1s entitled to be reinstated.\n\nThe suggestion that having regard to the nature oi the pANlfOLE TEA ESTATE I'. WORKMEN (Dua,!.) 783\n\n' A mi>sion lhat the order of reinstatement made by the Labour Court\n\n'ulfers from any legal infirmity justifying its substitution by an order of payment of compensation to the workman. A suggestion has been thrown by Shri Chagla that in all probability the employee must have secured employment elsewhere as he could not have remained idle all these years an payme.nt of compen- B sation in place of reinstatement would, therefore, cause kim no prejudice.\n\nOn behalf of the employee it is denied that he had been employed anywhere else during this period. In out opinion, this matter being controversial should have been raised before the Labour Court and we are not in a position to express any opinion on it in the present proceedings.\n\nC The appeal accordingly fails and is dismissed.\n\nIn the circumstances of the case there will be. no order as to costs in this Court.\n\nY.P.\n\nAppeal dismissed.\n\n6-LllOOSup.C117l", "total_entities": 38, "entities": [{"text": "MANAGEMENT OF PANITOLE TEA ESTATE", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "MANAGEMENT OF PANITOLE TEA ESTATE", "offset_not_found": false}}, {"text": "THE WORKMEN", "label": "RESPONDENT", "start_char": 35, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "THE WORKMEN", "offset_not_found": false}}, {"text": "Febru°'ry 18, 1911", "label": "DATE", "start_char": 48, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "MANAGEMENT OF PANITOLE TEA ESTATE\n\nTHE WORKMEN\n\nFebru°'ry 18, 1911\n\n[J. M. SHELAT AND I. D. DUA, JJ.J\n\nJ, idust1ial Dispute-Disniissal of worknJen-Order of reinstatcnH!lli b, y Labour Court-Reinstatemen~ of compensation-Circumstances justifying reinstatemcnt-Constif,; tion of Indic, Art."}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 72, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "I. D. DUA, JJ", "label": "JUDGE", "start_char": 86, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 284, "end_char": 292, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 311, "end_char": 324, "source": "ner", "metadata": {"in_sentence": "136---Interference by Supreme Court."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 1296, "end_char": 1304, "source": "regex", "metadata": {"statute": null}}, {"text": "M. C. Chag", "label": "LAWYER", "start_char": 3944, "end_char": 3954, "source": "ner", "metadata": {"in_sentence": "M. C. Chag/a and R. Gopalakrishnan, for the appellant."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 3961, "end_char": 3978, "source": "ner", "metadata": {"in_sentence": "M. C. Chag/a and R. Gopalakrishnan, for the appellant."}}, {"text": "K. P. Gupta", "label": "LAWYER", "start_char": 4000, "end_char": 4011, "source": "ner", "metadata": {"in_sentence": "K. P. Gupta, for the respondents."}}, {"text": "H. P. Bhagavati", "label": "OTHER_PERSON", "start_char": 4305, "end_char": 4320, "source": "ner", "metadata": {"in_sentence": "In this appeal special leave was limited to the question whether relief by way of payment of compensation should not be substituted for the relief by way of reinstatement granted by the Labour Court to the workman, H. P. Bhagavati, Store Clerk."}}, {"text": "Panitole Tea Estate", "label": "PETITIONER", "start_char": 4340, "end_char": 4359, "source": "ner", "metadata": {"in_sentence": "The Panitole Tea Estate belongs to the Jokai (Assam) Tea Co., Ltd., Panitole."}}, {"text": "B. K.\n\nBorgohain", "label": "OTHER_PERSON", "start_char": 4510, "end_char": 4526, "source": "ner", "metadata": {"in_sentence": "One B. K.\n\nBorgohain, a part-time clerk, was in charge of this godown."}}, {"text": "December 12, 1960", "label": "DATE", "start_char": 4676, "end_char": 4693, "source": "ner", "metadata": {"in_sentence": "Ammonia sulphate fertiliser ws stored in this godown, 970 bags having been received there between December 12, 1960 and January 5, 1961."}}, {"text": "January 5, 1961", "label": "DATE", "start_char": 4698, "end_char": 4713, "source": "ner", "metadata": {"in_sentence": "Ammonia sulphate fertiliser ws stored in this godown, 970 bags having been received there between December 12, 1960 and January 5, 1961."}}, {"text": "Borgohain", "label": "OTHER_PERSON", "start_char": 4900, "end_char": 4909, "source": "ner", "metadata": {"in_sentence": "domestic enquiry against Borgohain a chit (Ex."}}, {"text": "Bhagavati", "label": "PETITIONER", "start_char": 5022, "end_char": 5031, "source": "ner", "metadata": {"in_sentence": "Bhagavati was accordingly also chargesheeted and after domestic enquiry he was dismissed with effect from March 23, 1961.", "canonical_name": "Bhagavati"}}, {"text": "March 23, 1961", "label": "DATE", "start_char": 5128, "end_char": 5142, "source": "ner", "metadata": {"in_sentence": "Bhagavati was accordingly also chargesheeted and after domestic enquiry he was dismissed with effect from March 23, 1961."}}, {"text": "Labour Court of Assam at Dibrugarh", "label": "COURT", "start_char": 5248, "end_char": 5282, "source": "ner", "metadata": {"in_sentence": "This order of dismissal of Bhagavati gave rise to an industrial dispute which was duly referred to the Labour Court of Assam at Dibrugarh."}}, {"text": "October 30, 1969", "label": "DATE", "start_char": 5321, "end_char": 5337, "source": "ner", "metadata": {"in_sentence": "The Labour Court by its award dated October 30, 1969 held that the contents of Ex."}}, {"text": "Cltagla", "label": "OTHER_PERSON", "start_char": 6214, "end_char": 6221, "source": "ner", "metadata": {"in_sentence": "On appeal in 'this Court Shri Cltagla has submitted that the management has lost confidence in Bhagavati and it would be unjust and improper to force his reinstatement as a store clerk on the management after a lapse of ten years."}}, {"text": "Delhi", "label": "GPE", "start_char": 7568, "end_char": 7573, "source": "ner", "metadata": {"in_sentence": "The company's establishment in Delhi was comparatively a small establishment."}}, {"text": "S. A. de Smith", "label": "OTHER_PERSON", "start_char": 14232, "end_char": 14246, "source": "ner", "metadata": {"in_sentence": "See S. A. de Smith, Judicial Review of Administrative Action (2nd ed) pp."}}, {"text": "Judicial Review of Administrative Act", "label": "STATUTE", "start_char": 14248, "end_char": 14285, "source": "regex", "metadata": {}}, {"text": "Chagla", "label": "OTHER_PERSON", "start_char": 14719, "end_char": 14725, "source": "ner", "metadata": {"in_sentence": "Shri Chagla has argued that in the present case there was no exercise of judicial discretion by the Labour Court and the impugned order was made mechanically without considering the relevant circumstances and applying its mind to the question as to which of the two reliefs was more appropriate."}}, {"text": "Bhagavati", "label": "PETITIONER", "start_char": 15062, "end_char": 15071, "source": "ner", "metadata": {"in_sentence": "On behalf .of the respondents i( is submitted that Bhagavati, the workman concerned in this.case, is innocent and the management was found by the Labour Court on evidence to have resorted to unfair labour practice.", "canonical_name": "Bhagavati"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 15772, "end_char": 15789, "source": "ner", "metadata": {"in_sentence": "The respondent's learned counsel has, in support of his submission, drawn our attention to The Punjab National Bank Ltd. v. Its Workmen( 1), M. L. Bose & Co. (P) Ltd. v. Its Employees( 2 ) and Workmen of Untied Bleachers (P) Ltd., v. United Bleachers (P) Ltd.(3), (a decision by a single Judge of the Madras High Court)."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 16309, "end_char": 16317, "source": "regex", "metadata": {"statute": null}}, {"text": "M. L. Bose & Co. (P) Ltd.", "label": "ORG", "start_char": 16642, "end_char": 16667, "source": "ner", "metadata": {"in_sentence": "Support from the case of M. L. Bose & Co. (P) Ltd. (2) is sought for the contention that reinstatement is the normal rule when dismissal is held to be wrongful and it is immaterial that the employer has since employed other workmem..\n\nThe case of United Bleachers(') follows the observations of this Court in the case of Punjab National Bank Ltd.( 1), M. L. Bose_& Co. (P) Ltd.(2) and Swadesamitran Ltd. v. Their Workmen (4)."}}, {"text": "United Bleachers", "label": "ORG", "start_char": 16864, "end_char": 16880, "source": "ner", "metadata": {"in_sentence": "Support from the case of M. L. Bose & Co. (P) Ltd. (2) is sought for the contention that reinstatement is the normal rule when dismissal is held to be wrongful and it is immaterial that the employer has since employed other workmem..\n\nThe case of United Bleachers(') follows the observations of this Court in the case of Punjab National Bank Ltd.( 1), M. L. Bose_& Co. (P) Ltd.(2) and Swadesamitran Ltd. v. Their Workmen (4)."}}, {"text": "Punjab National Bank Ltd.", "label": "ORG", "start_char": 16938, "end_char": 16963, "source": "ner", "metadata": {"in_sentence": "Support from the case of M. L. Bose & Co. (P) Ltd. (2) is sought for the contention that reinstatement is the normal rule when dismissal is held to be wrongful and it is immaterial that the employer has since employed other workmem..\n\nThe case of United Bleachers(') follows the observations of this Court in the case of Punjab National Bank Ltd.( 1), M. L. Bose_& Co. (P) Ltd.(2) and Swadesamitran Ltd. v. Their Workmen (4)."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 17149, "end_char": 17157, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindustan Steel Ltd.", "label": "ORG", "start_char": 18976, "end_char": 18996, "source": "ner", "metadata": {"in_sentence": "In Hindustan Steel Ltd.'s case(.')"}}, {"text": "(1969) 3 S.C.R. 457", "label": "CASE_CITATION", "start_char": 21307, "end_char": 21326, "source": "regex", "metadata": {}}, {"text": "Bhagavah", "label": "PETITIONER", "start_char": 22582, "end_char": 22590, "source": "ner", "metadata": {"in_sentence": "That chit havinfi been found not to-be in Bh<1gavati's handwriting and Bhagavah's dismissai having been held to be wrongful we are.", "canonical_name": "Bhagavati"}}, {"text": "Assam Match Co.", "label": "ORG", "start_char": 23360, "end_char": 23375, "source": "ner", "metadata": {"in_sentence": "A similar argument was repelld in the case of Assam Match Co.(')."}}, {"text": "Swadesamitran", "label": "OTHER_PERSON", "start_char": 24156, "end_char": 24169, "source": "ner", "metadata": {"in_sentence": "In Swadesamitran's case( 2 ) also this Court observed that in the case of wrongful dismissal, discharge or retrenchment a claim for reinstatement can'not be defeated merely because time has elapsed or that the employer has engaged fresh hands."}}]} {"document_id": "1971_3_784_790_EN", "year": 1971, "text": "SUKHNANDAN SINGH ETC.\n\nJAMIAT SINGH & ORS.\n\nFebruar, y 18, 1971\n\n[I. D. DUA AND V. BHARGAVA, JJ.J\n\nPe-e111p1i~11--:-Suit for--Co/lusion-;-Suit by son.< of Vendors for pre- 1\"fnP!'?n7Pla1n!it1s c.n_d vendors residing and .messing l!Ogether altd expenset; .of /1,1ga11on being pwd by vendor.<-!/ mfjicient to e.re-emption suit only two questions were raised by the learned counsel for the appellants who were vendees-defendants in the trial court.\n\nThe suit was instituted by the three sons of three vendors who were real brothers, and the two points canvassed in this Court challenge the decisio.ns of the High Court and of the court of the District Judge on issues 6 and 7.\n\nThose issues are :\n\n\"6. Is the suit collusive? If so, its . effect.\n\n7. Is the suit within time?\"\n\nBoth these issues were decided by the trial court against the plaintiffs but the District Judge on appeal reversed the decision of the trial court on both the issues and the High Court on second appeal affirmed the decision of the first appellate court.\n\nThe relevant facts may now be stated in brief.\n\nKartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar. Singh sons Gurdev Singh in equal shares, I /3rd share, Gurminder Singh and Gurpakh Singh sons of Teja Singh in equal shares, I/3rd share. Gurdas Singh son of Angrez Singh,\n\nI /3rd share at the rate of Rs. 840/- per bigha.\n\nA sum of Rs. 7,000/- was received in cash as earnest money.\n\nQn December 6, 1961 a formal sale deed was executed with some variations in sh'ares and also with addition of Smt. Chand Kaur, wife of Sardar Inder Singh as one more co-vendee.\n\nThe sale price was stated to be Rs. 32,550/- Possession of the land sold was stated to have been delivered and it was also recited th.at consolidation proceedings under s. 21 (1) of the Consolidation Act had been completed but further proceedings in favour of the vendees would be taken after the proceedings which might be taken under\n\ns, 21(2). This sale deed was duly registered on .March 9; 1962.\n\nThe suit for pre-emption by the three sons of three vendors was instituted on March 6, 1963. It was contested by the vendees.\n\nThe pleadings of the parties gave rise to several issues but we are only concerned with the issues relating to the pleas of collusive nature of the suit and limitation.\n\nThe trial court dis- , posed of the issues nos. 5 and 6, relating respectively to waiver of the right of pre-emption by the plaintiffs and to the collusive ,. . nature of the suit by dealing with .them together.\n\nPhotographs . showing the. plaintiffs and the vendors being together along with . libe plaintiffs' counsel in the court compound during the course ., \"(.of this litisation were produced as evidence in the case.\n\nExhibit\n\n1 •\n\n).1-2 a certified copy of the Register of Consolidation Proceedings, . 'Produced by the plaintiffs in evidence showed that this copy .. had\n\n:. been prepared at the instance of Kartar Singh, one of the ve.ndors ·\n\nand .father of J amiat Singh, plaintiff.\n\nAccording to the trial court there was also evidence that the plaintiffs and the vendors resided and mesed together.\n\nOn consideration of this material the trial court held that the vendors and the pre-emptors resided and messed together and the expenses of the litigation were paid by the 'vendors.\n\nFrom this it concluded that the suit had been filed by the plaintiffs at the instance of and in collusion with the vendors.\n\nThe right of pre-emption being a priratical right, according to the trial court, to quote its own words \"it is necessary that the pre-emptors must not act in collusion with vendors or act in oad faith.\" The plaintiffs were on this reasoning held to be estopped from exercising their right of pre, emption. On the question of lin1itation the trial court. held that the vendors and not. their tenants were in possessioo of he land sold, which had been allotted to them in the consolidation proceedings and the possession of that land was delivered to the veindees on the date of the sale. The suit was accordingly held to be barred by time. The suit was dismissed for all these reasons.\n\nOn appeal by the plaintiffs the District Judge reversed the conclusion of the trial court both on the point of estoppel or collusion and of limitation.\n\nAccordii:tg to that court in order to prove collusion the defendant ha~ to prove that the suit was being fought for the wndor's benefit, the normal presumption being that the plaintiff .1ues for his o.wn benefit. In support of this view several decisioms were relied upon by the District Judge. In the present case, according to the learned District Judge, the plaintiff Jamiat S£ngh had clearly stated that he was pre-empting the present sale with his own earnings .and the learned District Judge found no rebuttal to this assertion.\n\nNeither the fact thafBx: p;2 had been obtained by one of the vendors nor the fact that the vendors were present in the\n\ncourt coml??und with the plaintiffs and their counsel during . the course of htigation indicated that the present suit had necessarily\n\nc •\n\n; F\n\n-·?\"<-·~\n\n•.. been instituted for the benefit of the vendors.\n\nOn this reasoning the decision on the collusive nature of the suit which must result in .its disip.issal was reversed. In regard to the limitation also the learned District Judge concluded, in disagreement with the trial court, that a part of the land sold was in possession of tenants and, therefore, ii did not admit of physical possession, which means immediate personal possession. In that view of the matter under Art. 10 of the Indian Limitation Act, 1908 the terminus a\n\nquo was the date of registration of the sale deed. The suit was thus held to have been instituted within one year from the date of registration and, therefore, within limitation under Art. 10. The judgment and decree of the trial court was reversed and the suit aecreed.\n\nOn second appeal a learned single Judge of the Pun.jab and HaryQna High Court held that there was no clear and reliable evidence that the vendor and their son were united in mess and estate.\n\nThe other two circumstances, namely, that the vendors and the plaintiffs along with their counsel were seen together in court compound and that Ex. P-2 had been obtained by one of the vendors one day before the institution of the suit, were not considered sufficient to establish the collusive nature 'Of the suit. In regard to the stateffifnt of Jamiat Singh the High Court undoubtedly felt unimpressed by his statement but we do not think it was open to that court on second appeal to appraise the credibility of the testimony which was believed by the final court of fact when there was no illegality in the appraisal of the testimony by the District Judge and it was open to him to take the view he did. Jamiat Singh had stated that he was separated from his father since about three years and that he was spending on the litigation from what little amount he earned. The matter was not pursued in cross-examination as to what was the source of his earniings. Even after feeling unimpressed by the statement of J amiat Singh, the High Court came to the conclusion that it was for the vendees to establish the collusive nature of the plaintiffs' suit. On the evidence produced the District Judge having come to the conclusion that they had failed to discharge this onus this conclusion was one of fact and not being vitiated by and error of law it was held binding on second appeal.\n\nThe cootention that the District Judge was wrong in holding that a part of the land sold was in possession of the tenant at the time of the sale was also repelled. The conclusion of the District Judge that field no. 24/21 out of the suit land was under the cultivation of Bahadur Singh, a tenant at will, as was clear Ex. X-4, a copy of Khasra Girdwari relating to Rabi 1962 and Kharif 1962 was also held to be a finding of fact binding on second appeal. This documertt was not shown to have been misread by\n\nthe first appellate court. on this finding Art. 10 of the Indain Limitation Act, 1908, and 1not S. 30 of the Punjab Pre-emption Act. was held applicable a.nd the suit was thus considered to be within limitation. For this view reliance was placed on two decisions of the Punjab Chief Court and a Bench decision of the Nagpur High Court. The appeal was, however, partly accepted by raising the pre-emption money by an additional sum of Rs. 4, 133.50.\n\nIn this Court again the learned cot1insel for the appellantvendees-pressed the points of collusion and limitation. We are, however, 11nable to find merit in either of them. So far as the question of collusion is concerned it was not clarified by the learned counsel how the plaintiffs could be held to have Jost their 'fight of pre-emption merely becauses their fathers either came to the court with them, which they did openly1 or allowed their sons as plaintiffs to use in court, copy of a public document procured by the father of one of the plaintiffs. Collusion in judicial proceedings is , normally associated with secret arrangement between two persons that the one hould institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In scuh a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask. designed to give false appearance of a genuine judicial f the property sold, does not admit of physical possession and that would be so when a part of the land is in the possesion of the tenants. The argument that use of the expression \"subject of the sale\" suggests that this artcile would apply only if the, entire and not only a part of the land is in the possession of the tenants is not acceptable. The expressbn \"physical 1possession\" came wp for construction before the Privy Council in BatuT Begam v. Mansur Ali Khan(') Lord Robertson speaking for the Judicial Committee said :\n\n\"What has to be considered is as the High Court accurately formulated, the question, does the property admit of physical possession? . The word_ \"physical\" is of itself a strong word, highly restrictive of the kind of possession indicated; and when it is found as is pointed out by the High Court, that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used,-first in 1859 prescribing \"possession\" then in f871 requiring \"actual\n\npossession\" and finally in 1877 substituting the word \"physical\" and \"actual\", it is seen that that word has\n\n(I) 1.L.R.C4 All. 17 ..•.\n\nbeen very deliberately chosen and for a restrictive purpose. Their Lordships are of opinion that the Higll Courts are right in the conclusion they have stated.\n\nTheir Lordships consider that the expression used by Stuart, C.J., in regard to the words \"actual possession\" is applicable with stil! more certainty to the words\n\n\"physical possession\" and that what is meant is a \"personal and immediate\" possession.\"\n\nThis view has evec since then been followed by the High Courts in India.\n\nNo decision holding to the contrary was brought to our notice.\n\nIndeed, Shri Gosain virtually conceded that there was none to his knowledge.\n\nThe properties in possession of tenants have on this reasoning to be held to be incapable of physical possession which means personal and immediate possession. . It was so held in Ghulam Mustafa v. Shahabuddin( 1 ). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decision overruling the dictum is one of the earlier decisions of that Court.\n\nThis view has consistently held the field in the Punjab and we do not find any cogent reason for disagree ing and upsetting it. If the date of registration of the sale deed. be the terminus a quo then indisputably the suit must be held to\n\nbe within limitation.\n\nThese being the. only two points agitated before us this appeal must fail and is dismissed with costs.\n\nR.KP.S. ' Appeal dismissed.\n\n(I) 49 P.R. 1908 (F.B.).", "total_entities": 61, "entities": [{"text": "SUKHNANDAN SINGH ETC", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "SUKHNANDAN SINGH ETC", "offset_not_found": false}}, {"text": "JAMIAT SINGH & ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "JAMIAT SINGH & ORS", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 66, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "V. BHARGAVA, JJ", "label": "JUDGE", "start_char": 80, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA*", "offset_not_found": false}}, {"text": "Limitation Act 1908", "label": "STATUTE", "start_char": 330, "end_char": 349, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 10", "label": "PROVISION", "start_char": 350, "end_char": 360, "source": "regex", "metadata": {"linked_statute_text": "Limitation Act 1908", "statute": "Limitation Act 1908"}}, {"text": "Section 10", "label": "PROVISION", "start_char": 1612, "end_char": 1622, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 10", "label": "PROVISION", "start_char": 1771, "end_char": 1781, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 10", "label": "PROVISION", "start_char": 2529, "end_char": 2539, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 10", "label": "PROVISION", "start_char": 2599, "end_char": 2609, "source": "regex", "metadata": {"statute": null}}, {"text": "K. L. Gosain", "label": "LAWYER", "start_char": 3546, "end_char": 3558, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain and Nmmit Lal, for the appellants."}}, {"text": "Nmmit Lal", "label": "LAWYER", "start_char": 3563, "end_char": 3572, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain and Nmmit Lal, for the appellants."}}, {"text": "Purushottam Chatterjee", "label": "LAWYER", "start_char": 3595, "end_char": 3617, "source": "ner", "metadata": {"in_sentence": "Purushottam Chatterjee and D. D. Sharma, for the respondents."}}, {"text": "D. D. Sharma", "label": "LAWYER", "start_char": 3622, "end_char": 3634, "source": "ner", "metadata": {"in_sentence": "Purushottam Chatterjee and D. D. Sharma, for the respondents."}}, {"text": "Dua", "label": "JUDGE", "start_char": 3702, "end_char": 3705, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDua, J. In this appeal by special leave from the judgment and decree of a learned single Judge of the Pjab and Haryan:i\n\nHigh Court arising out of a i;>re-emption suit only two questions were raised by the learned counsel for the appellants who were vendees-defendants in the trial court."}}, {"text": "Haryan", "label": "JUDGE", "start_char": 3813, "end_char": 3819, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDua, J. In this appeal by special leave from the judgment and decree of a learned single Judge of the Pjab and Haryan:i\n\nHigh Court arising out of a i;>re-emption suit only two questions were raised by the learned counsel for the appellants who were vendees-defendants in the trial court."}}, {"text": "Kartar Singh", "label": "PETITIONER", "start_char": 4622, "end_char": 4634, "source": "ner", "metadata": {"in_sentence": "Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar.", "canonical_name": "Kartar Singh"}}, {"text": "Bachan Singh", "label": "OTHER_PERSON", "start_char": 4636, "end_char": 4648, "source": "ner", "metadata": {"in_sentence": "Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar."}}, {"text": "Sardara Singh", "label": "OTHER_PERSON", "start_char": 4653, "end_char": 4666, "source": "ner", "metadata": {"in_sentence": "Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar."}}, {"text": "Sohel Singh", "label": "OTHER_PERSON", "start_char": 4676, "end_char": 4687, "source": "ner", "metadata": {"in_sentence": "Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar."}}, {"text": "September 19, 1961", "label": "DATE", "start_char": 4726, "end_char": 4744, "source": "ner", "metadata": {"in_sentence": "Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar."}}, {"text": "Sukhnandan Singh", "label": "PETITIONER", "start_char": 4791, "end_char": 4807, "source": "ner", "metadata": {"in_sentence": "Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar.", "canonical_name": "SUKHNANDAN SINGH ETC"}}, {"text": "Sukhrninder Singh", "label": "OTHER_PERSON", "start_char": 4809, "end_char": 4826, "source": "ner", "metadata": {"in_sentence": "Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar."}}, {"text": "Balkar", "label": "OTHER_PERSON", "start_char": 4831, "end_char": 4837, "source": "ner", "metadata": {"in_sentence": "Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and 15 .mar/as of land to Sukhnandan Singh, Sukhrninder Singh and Balkar."}}, {"text": "Gurdev Singh", "label": "PETITIONER", "start_char": 4850, "end_char": 4862, "source": "ner", "metadata": {"in_sentence": "Singh sons Gurdev Singh in equal shares, I /3rd share, Gurminder Singh and Gurpakh Singh sons of Teja Singh in equal shares, I/3rd share.", "canonical_name": "Gurdev Singh"}}, {"text": "Gurminder Singh", "label": "OTHER_PERSON", "start_char": 4894, "end_char": 4909, "source": "ner", "metadata": {"in_sentence": "Singh sons Gurdev Singh in equal shares, I /3rd share, Gurminder Singh and Gurpakh Singh sons of Teja Singh in equal shares, I/3rd share."}}, {"text": "Gurpakh Singh", "label": "OTHER_PERSON", "start_char": 4914, "end_char": 4927, "source": "ner", "metadata": {"in_sentence": "Singh sons Gurdev Singh in equal shares, I /3rd share, Gurminder Singh and Gurpakh Singh sons of Teja Singh in equal shares, I/3rd share."}}, {"text": "Teja Singh", "label": "OTHER_PERSON", "start_char": 4936, "end_char": 4946, "source": "ner", "metadata": {"in_sentence": "Singh sons Gurdev Singh in equal shares, I /3rd share, Gurminder Singh and Gurpakh Singh sons of Teja Singh in equal shares, I/3rd share."}}, {"text": "Gurdas Singh", "label": "PETITIONER", "start_char": 4977, "end_char": 4989, "source": "ner", "metadata": {"in_sentence": "Gurdas Singh son of Angrez Singh,\n\nI /3rd share at the rate of Rs.", "canonical_name": "Gurdev Singh"}}, {"text": "Angrez Singh", "label": "OTHER_PERSON", "start_char": 4997, "end_char": 5009, "source": "ner", "metadata": {"in_sentence": "Gurdas Singh son of Angrez Singh,\n\nI /3rd share at the rate of Rs."}}, {"text": "Chand Kaur", "label": "OTHER_PERSON", "start_char": 5238, "end_char": 5248, "source": "ner", "metadata": {"in_sentence": "Chand Kaur, wife of Sardar Inder Singh as one more co-vendee."}}, {"text": "Sardar Inder Singh", "label": "OTHER_PERSON", "start_char": 5258, "end_char": 5276, "source": "ner", "metadata": {"in_sentence": "Chand Kaur, wife of Sardar Inder Singh as one more co-vendee."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 5470, "end_char": 5475, "source": "regex", "metadata": {"statute": null}}, {"text": ".March 9; 1962", "label": "DATE", "start_char": 5686, "end_char": 5700, "source": "ner", "metadata": {"in_sentence": "This sale deed was duly registered on .March 9; 1962."}}, {"text": "March 6, 1963", "label": "DATE", "start_char": 5781, "end_char": 5794, "source": "ner", "metadata": {"in_sentence": "The suit for pre-emption by the three sons of three vendors was instituted on March 6, 1963."}}, {"text": "Kartar Singh", "label": "PETITIONER", "start_char": 6616, "end_char": 6628, "source": "ner", "metadata": {"in_sentence": "been prepared at the instance of Kartar Singh, one of the ve.ndors ·\n\nand .father of J amiat Singh, plaintiff.", "canonical_name": "Kartar Singh"}}, {"text": "J amiat Singh", "label": "RESPONDENT", "start_char": 6668, "end_char": 6681, "source": "ner", "metadata": {"in_sentence": "been prepared at the instance of Kartar Singh, one of the ve.ndors ·\n\nand .father of J amiat Singh, plaintiff.", "canonical_name": "JAMIAT SINGH & ORS"}}, {"text": "Jamiat S£ngh", "label": "PETITIONER", "start_char": 8331, "end_char": 8343, "source": "ner", "metadata": {"in_sentence": "In the present case, according to the learned District Judge, the plaintiff Jamiat S£ngh had clearly stated that he was pre-empting the present sale with his own earnings .and the learned District Judge found no rebuttal to this assertion.", "canonical_name": "JAMIAT SINGH & ORS"}}, {"text": "Art. 10", "label": "PROVISION", "start_char": 9244, "end_char": 9251, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 9259, "end_char": 9286, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 10", "label": "PROVISION", "start_char": 9487, "end_char": 9494, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "Pun.jab and HaryQna High Court", "label": "COURT", "start_char": 9622, "end_char": 9652, "source": "ner", "metadata": {"in_sentence": "On second appeal a learned single Judge of the Pun.jab and HaryQna High Court held that there was no clear and reliable evidence that the vendor and their son were united in mess and estate."}}, {"text": "Jamiat Singh", "label": "RESPONDENT", "start_char": 10114, "end_char": 10126, "source": "ner", "metadata": {"in_sentence": "In regard to the stateffifnt of Jamiat Singh the High Court undoubtedly felt unimpressed by his statement but we do not think it was open to that court on second appeal to appraise the credibility of the testimony which was believed by the final court of fact when there was no illegality in the appraisal of the testimony by the District Judge and it was open to him to take the view he did.", "canonical_name": "JAMIAT SINGH & ORS"}}, {"text": "Bahadur Singh", "label": "OTHER_PERSON", "start_char": 11426, "end_char": 11439, "source": "ner", "metadata": {"in_sentence": "24/21 out of the suit land was under the cultivation of Bahadur Singh, a tenant at will, as was clear Ex."}}, {"text": "Khasra Girdwari", "label": "OTHER_PERSON", "start_char": 11491, "end_char": 11506, "source": "ner", "metadata": {"in_sentence": "X-4, a copy of Khasra Girdwari relating to Rabi 1962 and Kharif 1962 was also held to be a finding of fact binding on second appeal."}}, {"text": "Art. 10", "label": "PROVISION", "start_char": 11706, "end_char": 11713, "source": "regex", "metadata": {"statute": null}}, {"text": "Indain Limitation Act, 1908", "label": "STATUTE", "start_char": 11721, "end_char": 11748, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 30", "label": "PROVISION", "start_char": 11759, "end_char": 11764, "source": "regex", "metadata": {"linked_statute_text": "the Indain Limitation Act, 1908", "statute": "the Indain Limitation Act, 1908"}}, {"text": "Punjab Chief Court", "label": "COURT", "start_char": 11933, "end_char": 11951, "source": "ner", "metadata": {"in_sentence": "For this view reliance was placed on two decisions of the Punjab Chief Court and a Bench decision of the Nagpur High Court."}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 11980, "end_char": 11997, "source": "ner", "metadata": {"in_sentence": "For this view reliance was placed on two decisions of the Punjab Chief Court and a Bench decision of the Nagpur High Court."}}, {"text": "Article 10", "label": "PROVISION", "start_char": 14906, "end_char": 14916, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule cf the India Limitation Act", "label": "STATUTE", "start_char": 14929, "end_char": 14965, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 30", "label": "PROVISION", "start_char": 15372, "end_char": 15382, "source": "regex", "metadata": {"linked_statute_text": "Schedule cf the India Limitation Act", "statute": "Schedule cf the India Limitation Act"}}, {"text": "Art. 10", "label": "PROVISION", "start_char": 15462, "end_char": 15469, "source": "regex", "metadata": {"linked_statute_text": "Schedule cf the India Limitation Act", "statute": "Schedule cf the India Limitation Act"}}, {"text": "S. 30", "label": "PROVISION", "start_char": 15908, "end_char": 15913, "source": "regex", "metadata": {"linked_statute_text": "Schedule cf the India Limitation Act", "statute": "Schedule cf the India Limitation Act"}}, {"text": "Gosain", "label": "OTHER_PERSON", "start_char": 16014, "end_char": 16020, "source": "ner", "metadata": {"in_sentence": "In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land."}}, {"text": "Art. 10", "label": "PROVISION", "start_char": 16187, "end_char": 16194, "source": "regex", "metadata": {"statute": null}}, {"text": "Robertson", "label": "OTHER_PERSON", "start_char": 16756, "end_char": 16765, "source": "ner", "metadata": {"in_sentence": "The expressbn \"physical 1possession\" came wp for construction before the Privy Council in BatuT Begam v. Mansur Ali Khan(') Lord Robertson speaking for the Judicial Committee said :\n\n\"What has to be considered is as the High Court accurately formulated, the question, does the property admit of physical possession? ."}}, {"text": "Stuart", "label": "JUDGE", "start_char": 17656, "end_char": 17662, "source": "ner", "metadata": {"in_sentence": "Their Lordships consider that the expression used by Stuart, C.J., in regard to the words \"actual possession\" is applicable with stil!"}}, {"text": "India", "label": "GPE", "start_char": 17922, "end_char": 17927, "source": "ner", "metadata": {"in_sentence": "This view has evec since then been followed by the High Courts in India."}}, {"text": "Punjab", "label": "GPE", "start_char": 18502, "end_char": 18508, "source": "ner", "metadata": {"in_sentence": "This view has consistently held the field in the Punjab and we do not find any cogent reason for disagree ing and upsetting it."}}]} {"document_id": "1971_3_791_794_EN", "year": 1971, "text": "S. M. NANDY & ORS.\n\nv ..\n\nSTATE OF WEST BENGAL & ORS.\n\nFebruary 19, 1971\n\n[S. M. S!KRI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER\n\nAND P. JAGANMOHAN REDDY, JJ.]\n\nWert Bengal Land (Requisition and Acquisition) Act, 1948-lf ultra vires Constitution under Art. 19(1) (f) and (5).\n\nOn the question whether the West Bengal Land (Requisition and Acquisition) Act, 1948, W!)S ultra vires the Constitution under Art. 19(1) (f) read with 19(5).\n\nHELD : The State of West Bengal was faced with many emergent problems created by the partition of India and the impugned Act was enacted in order to provide for requisitioning and speedy acquisition of land under s. 3 for a number of public purposes mentioned therein. The necessity for requisitioning must necessarily be left to the State Government.\n\nThough there is no express provision to make a representation against an order of requisition undelr s. 3 (2) there is no bar to such a representation being made and to its being considered by the State Government or appropriate Governmental Authorities. If, however, any order is made for any collateral purpose, dr has been made for purposes not mentioned in s. 3 of the Act, or is mala fide, it can always be challenged in a civil court. Under ss, 7 (3) and ( 4), 8 and SA of the Act, fair compensation bas been provided for requisitioning which is determinable by a civil court, if there is a dispute regarding the amount, and ultimately by the High Court and this Court. Therefore, the restrictions imposed by the impugned Act, are not unreasonable. [792 C, D; 794 D-F)\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 500 Of 1967.\n\nF Appeal from the judgment and order dated January 13, 1965 of the Calcutta High Court in Appeal from Original Order No.\n\n104 Of 1963. .\n\nArun Kumar Datta and D. N. Mukh11rjee, for the appellants.\n\nNiren De, Attorney-General and P. K. Chakravarti for the respondent. '\n\nThe Judgment of the Court was delivered by\n\nSikri, C.J.\n\nThe following question has been referred to the\n\nConstut!on Bench under the proviso to art. 145 ( 3) of the Constitution :\n\n\"~~7ther the West engal Land (Requisition and Acqms1tion) Act 1948 JS ultra vires the Constitution under art. 19(1 )(f) read with art. 19(5) ?\"\n\n- '\",.\n\nSUPREMECOURT REPORTS [197 l j 3 S.C.R.\n\nThe learned counsel for the appellant, Shri Arun Kumar\n\nJ?tta, challenges the Wi:st Bengal Land (Requisition and Acquis1t1on) Act, 1948-heremafter referred to as the impugned act-- on the ground that it does not impose reasonable restrictions within art. 19 ( 5) of the Constitution.\n\nHe urges three grounds in this respect.\n\nFirst, he says, that there is no provision for a notice to the ownet or the occupier of the property before an order of requisition is passed, secondly, there is no provision for an appeal against the order of requisition, and thirdly, a civil suit is barred under s. 11 of the impugned Act.\n\nIn order to appreciate the points raised by the learned counsel it is necessary to set out the scheme of the Act.\n\nThe impugned act was enacted in order to provide for requisitioning and . speedy acquisition of land for a_ number of public purposes. These purposes are : ( 1) maintaining supplies and services essential to the life of the community; ( 2) provide proper facilities for transport, communication, irrigation or drainage; and ( 3) creation of better living conditions in urban or rural areas by the construe- .lion or re-construction of dwelling places in such areas.\n\nThe State of West Bengal was faced with many emergent problems created by the partition of India, and this Act was designed to meet these problems in a speedy manner. Section 3 enables the\n\nState Government to requisition land for the purposes mentioned above.\n\nA Collector of a district, an Additional District Magistrate or the First Land Acquisition Collector, Calcutta, when authorised by the State Government in this behalf, may exercise within his jurisdiction tile powers of requisitioning conferred by sub-s. (1). Sub-s. (2) of s. 3 provides for service of this order in the prescribed manner on the owner of land and also on the occupier not being owner of land.\n\nUnder sub-s. ( 3) of s. 3 the Collector, or' any person authorised by him in writing in this behalf is entitled to execute the order in the manner mentioned therein, if the order passed under su b-s. ( 2) is not complied with by any person.\n\nThere is nothing in the impugned Act which prevents a person on whom an order has been served under sub-s.\n\n(2) to make a representation to the Collector or the State Government against the order of requisition.\n\nSection 4 enables the State Government to use or deal with the land for the purposes aforesaid.\n\nWe are not concerned with acquisition in this _case but we may mention that the State Governen.t may ac9mr~ any 13!1d requisitioned under the Act by pubhshmg a notice m the offiCJal gazette that such land is required for a public purpose referred to in sub-s .. (1) of s. 3'. .\n\nSection 6 enables the State Government to derequisition or rele.ase from requisition any land.\n\nS. M. NANDY V. WEST BENGAL (Sikri, C.J.)\n\nA The impugned Act provides for fair compensation in respect. of the requisitioned land under s. 7(3) ands. 7(4) ...\n\nSub-s. (3) provides that where any land is requisitioned under s. 3, there shall be paid to every person interested compensation in respect of-\n\n(a) the requisition of such land; and ( b) any damage done during the period of requisition to such land other than what may have. been sustained by natural causes.\n\nSub-s: ( 4) lays down the principles to be followed in determining the compensation. If the Collector and the person interested agree to the compensation the Collector is enabled to make an award ordering payment of the agreed compensation. If there is disagreement, sub-s. ( 4) provides that the compensation pay-- able shall be the amount determined by the Court on reference. made by the Collector under cl. (b) of sub-s. ( 1) of s. 8. Under s. 8 the Collector is obliged to refer the matter to the decision of the Court if there is any disagreement with regard to compens<1tion, and sub-s. ( 2) of s. 8 prescribes the same procedure as the: Land Acquisition Act, 1894, in this regard, and the State Govern-· ment is directed to apply the principles set out in sub-s. (1) of s. 23 of that Act, and in cl. (a) of sub-s. (2) of s. 7 of the impugned Act, which provides :\n\n\"7 ( 2 j'( a) When the compensation has been determined . under sub-section ( 1) the Collector shall make. an award in accordance with the principles set out in section 11 of the Land Acquisition Act, 1894, al)d no amount referred to in sub-section ( 2) of section 23 of that Act, shall be included in the award :\n\nProvided that interest at the rate of six per centum per annum on the amount of compensation under the award from the date of the publication of the notice under sub-section (1 a) of section 4 until payment shall be included in the amount payable under the award.\"\n\nIt seems to us that these provisions give fair compensation and enable a Civil Court to determine the question in case of a dispute.\n\nAn appeal' lies under s. SA from the award made by a Court on a reference under s. 8 as if such awardwas an original decree passed by the Court in. exercise of its civil jurisdiction.\n\nNt nly therefore fair compensation is provided but the determmat\\on of the amount of compensation rests with a CiVil Court in case of a dispute.\n\nAlthough the learned counset took objection to the court which has to make an award, we see nothing\n\n7-94\n\nSUPREME COURT REPORTS\n\n[1971] 3 S.C.R.\n\nwrong with the definition of the word \"Court\".\n\nThe word A ·\"Court\" has been defined to mean :\n\n\" \"Court\" means a principal Civil Court of original jurisdiction, and includes the Court of any Additional Judge, Subordinate Judge or Munsif whom the State Government may appoint, by name or by virtue of his office, to perfonn concurrently with any such principal Civil Court, all or any of the functions of the Court under this Act within any specified local limits and, in the case of a M unsif, up to the limits of the pecuniary jurisdiction with which he is vested under section 19 of the Bengal, Agra and Assam Civil Courts Act, 1887.\"\n\nSection 11 provides that \"save as otherwise expressly pro- vided in this Act, no decision or order made in exercise of any power conferred by or under this Act shall -be. called iri question in any Court.\" It seems to us that if any order is made for any collateral purpose or has been made for 'purposes not mentioned ins. 3 or is malafide, it can always be challenged.\n\nWe are, therefore, of the opinion that it is difficult to hold that restrictions imposed by the impugnt;, d Act are unreasonable.\n\nFair compensation has been provided for requisitioning, which is determinable by a Civil Court and ultimately by the High Court or the Supreme Court.\n\nRegarding the necessity for requisitioning it musLnecessarily be left to the State Government. It is true that there is no express provision to make a representation\n\naganst an order of requisition but there is no bar to a represen:\n\ntation being made after an order is served under s. 3 (2) of the Act.\n\nWe have no dubt that i'f the representation raises a point which overrides the public purpose it would be favourably considered by the State Government or other Government authorities as the case may be.\n\nAccordingly the question referred tO us is answered in the :.riegative.\n\nThe case will now go back to the Division Bench 'for disposal according to law. ·\n\n\"V.P.S.\n\nAct held intra vives.", "total_entities": 53, "entities": [{"text": "S. M. NANDY & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "S. M. NANDY & ORS", "offset_not_found": false}}, {"text": "STATE OF WEST BENGAL & ORS", "label": "RESPONDENT", "start_char": 26, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL & ORS", "offset_not_found": false}}, {"text": "February 19, 1971", "label": "DATE", "start_char": 55, "end_char": 72, "source": "ner", "metadata": {"in_sentence": "February 19, 1971\n\n[S. M. S!KRI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER\n\nAND P. JAGANMOHAN REDDY, JJ.]"}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 94, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 108, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 121, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY, JJ.", "label": "JUDGE", "start_char": 139, "end_char": 163, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 257, "end_char": 267, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 408, "end_char": 418, "source": "regex", "metadata": {"statute": null}}, {"text": "State of West Bengal", "label": "ORG", "start_char": 452, "end_char": 472, "source": "ner", "metadata": {"in_sentence": "HELD : The State of West Bengal was faced with many emergent problems created by the partition of India and the impugned Act was enacted in order to provide for requisitioning and speedy acquisition of land under s. 3 for a number of public purposes mentioned therein."}}, {"text": "India", "label": "GPE", "start_char": 539, "end_char": 544, "source": "ner", "metadata": {"in_sentence": "HELD : The State of West Bengal was faced with many emergent problems created by the partition of India and the impugned Act was enacted in order to provide for requisitioning and speedy acquisition of land under s. 3 for a number of public purposes mentioned therein."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 654, "end_char": 658, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 895, "end_char": 899, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1155, "end_char": 1159, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 1699, "end_char": 1718, "source": "ner", "metadata": {"in_sentence": "F Appeal from the judgment and order dated January 13, 1965 of the Calcutta High Court in Appeal from Original Order No."}}, {"text": "Arun Kumar Datta", "label": "LAWYER", "start_char": 1770, "end_char": 1786, "source": "ner", "metadata": {"in_sentence": "Arun Kumar Datta and D. N. Mukh11rjee, for the appellants.", "canonical_name": "Arun Kumar Datta"}}, {"text": "D. N. Mukh11rjee", "label": "LAWYER", "start_char": 1791, "end_char": 1807, "source": "ner", "metadata": {"in_sentence": "Arun Kumar Datta and D. N. Mukh11rjee, for the appellants."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 1830, "end_char": 1838, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General and P. K. Chakravarti for the respondent. '"}}, {"text": "P. K. Chakravarti", "label": "LAWYER", "start_char": 1861, "end_char": 1878, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General and P. K. Chakravarti for the respondent. '"}}, {"text": "Sikri", "label": "JUDGE", "start_char": 1946, "end_char": 1951, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSikri, C.J.\n\nThe following question has been referred to the\n\nConstut!on Bench under the proviso to art."}}, {"text": "art. 145", "label": "PROVISION", "start_char": 2046, "end_char": 2054, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 19(1 )(f)", "label": "PROVISION", "start_char": 2188, "end_char": 2202, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 19(5)", "label": "PROVISION", "start_char": 2213, "end_char": 2223, "source": "regex", "metadata": {"statute": null}}, {"text": "Arun Kumar", "label": "LAWYER", "start_char": 2320, "end_char": 2330, "source": "ner", "metadata": {"in_sentence": "SUPREMECOURT REPORTS [197 l j 3 S.C.R.\n\nThe learned counsel for the appellant, Shri Arun Kumar\n\nJ?tta, challenges the Wi:st Bengal Land (Requisition and Acquis1t1on) Act, 1948-heremafter referred to as the impugned act-- on the ground that it does not impose reasonable restrictions within art.", "canonical_name": "Arun Kumar Datta"}}, {"text": "art. 19", "label": "PROVISION", "start_char": 2526, "end_char": 2533, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 2867, "end_char": 2872, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 3644, "end_char": 3653, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta", "label": "GPE", "start_char": 3841, "end_char": 3849, "source": "ner", "metadata": {"in_sentence": "A Collector of a district, an Additional District Magistrate or the First Land Acquisition Collector, Calcutta, when authorised by the State Government in this behalf, may exercise within his jurisdiction tile powers of requisitioning conferred by sub-s. (1)."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4013, "end_char": 4017, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4171, "end_char": 4175, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 4605, "end_char": 4614, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4971, "end_char": 4975, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 4981, "end_char": 4990, "source": "regex", "metadata": {"statute": null}}, {"text": "S. M. NANDY V. WEST BENGAL", "label": "JUDGE", "start_char": 5077, "end_char": 5103, "source": "ner", "metadata": {"in_sentence": "S. M. NANDY V. WEST BENGAL (Sikri, C.J.)\n\nA The impugned Act provides for fair compensation in respect."}}, {"text": "s. 7(3)", "label": "PROVISION", "start_char": 5213, "end_char": 5220, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5300, "end_char": 5304, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 5981, "end_char": 5985, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 5993, "end_char": 5997, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 6150, "end_char": 6154, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 6193, "end_char": 6219, "source": "regex", "metadata": {}}, {"text": "s. 23", "label": "PROVISION", "start_char": 6326, "end_char": 6331, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6377, "end_char": 6381, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "section 11", "label": "PROVISION", "start_char": 6582, "end_char": 6592, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 6600, "end_char": 6626, "source": "regex", "metadata": {}}, {"text": "section 23", "label": "PROVISION", "start_char": 6678, "end_char": 6688, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "section 4", "label": "PROVISION", "start_char": 6919, "end_char": 6928, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 7216, "end_char": 7220, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "SUPREME COURT REPORTS\n\n[1971] 3 S.C.R.", "label": "COURT", "start_char": 7574, "end_char": 7612, "source": "ner", "metadata": {"in_sentence": "Although the learned counset took objection to the court which has to make an award, we see nothing\n\n7-94\n\nSUPREME COURT REPORTS\n\n[1971] 3 S.C.R.\n\nwrong with the definition of the word \"Court\"."}}, {"text": "section 19", "label": "PROVISION", "start_char": 8186, "end_char": 8196, "source": "regex", "metadata": {"statute": null}}, {"text": "Agra and Assam Civil Courts Act, 1887", "label": "STATUTE", "start_char": 8212, "end_char": 8249, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 11", "label": "PROVISION", "start_char": 8253, "end_char": 8263, "source": "regex", "metadata": {"linked_statute_text": "Agra and Assam Civil Courts Act, 1887", "statute": "Agra and Assam Civil Courts Act, 1887"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 8891, "end_char": 8904, "source": "ner", "metadata": {"in_sentence": "Fair compensation has been provided for requisitioning, which is determinable by a Civil Court and ultimately by the High Court or the Supreme Court."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 9190, "end_char": 9194, "source": "regex", "metadata": {"linked_statute_text": "Agra and Assam Civil Courts Act, 1887", "statute": "Agra and Assam Civil Courts Act, 1887"}}]} {"document_id": "1971_3_795_801_EN", "year": 1971, "text": "79.S\n\nSACHINDRA MOHAN NANDY.& ORS.\n\nSTATE OF WEST BENGAL & ORS.\n\nFebruary 19, 1971\n\n(S. M. SIKRI, C.J., C. A. VAIDIALINGAM AND V. BHARGAVA, JJ,]\n\nChandernagore (Merger) Act, 1954-Cilandernagore (Assimilation of L<'lt's) Act, 1955-Exten•ion of Wes; Bengal Laws IP Chandernagort territory-Wm Bengal Land (Requisition and Acquisition) Act, 1948 whether applicable to Chandernagore by virtue of Merger and Assimilation\n\nActs afo•esald-Powtr of Collect01 to requisition land whether confined to areo of Hooghly District before merger of Chandernagore. ·\n\nThe French settlement of Chandermrgore was merged in the State of West Bengal with effect from October 2, 1954 by virtue of the Chandernagore (Mc'rger) Act, 1954. It was made part of Hoogly District. By s. 17 of the Merger Act the laws relating to Lists I and III of the Seventh Schedule to the Constitution, in force in West Bengal 'generally' were extended to the merged territory.\n\nBy s. 18 the corresponding Jaws of French chandc'rnagore . were repealed. '-TQe Chandernagore (Assimilation\n\nof Laws) Act, 1955 by s. 3 thereof extended the laws relating to List II of the Seventh Schedule to the Constitution in force in West Bengal to the merged territory. By s. 4 the correspc>nding laws in force before merger we're repealed. The Collector of Hoogly in exercise of Powers conferred on him by notification dated May 11, 1948 made two orders under s. 3(1) of the Acquisition Act. The appellants challenged them in a petition under Art. 226 of the Constitution.\n\nThe petition being. dismissed api)eal was filed in this Court. It was contended : (i) that the clrders of requisition were illegal as the Acquisition Act under which they were issued did not apply to the territory pre\\fously known as French Chandernagore; (ii) that under the notitjcation dated May 11, 1948 the Collector could exercise the powers of requisition only in respect of lands within the locaniinits of the territories then fotming part of the Hooghly District.\n\nHELD : (i) The first contention had no force. Section 3 of the Chandernagore (Merger) Act, 1954 made Chandernagore part of the State.of West Bengal and s. 17 extended the Acquisition Act to it. Tlie •Acquisition Act was a law within the meaning of 'law' contained in s;2(c) of the Chandernagore (Assimilation of Laws) Act because it related to a matter enu.merated in List II in the Seventh Schedule to the Constitution whic~\n\nrefers to acquisition and requisitioning of property.\n\nIn so far as the Acquisition Act related to entry 42 of List III which deals with comiiensation, it was applied by s. 3 of the Chandernagore (Assimilation of Laws) Act, 1955, and s. 17 of the Chandernagore (Merger) Act, 1954, read with the definition. of the word 'laws' in s. 2(d) of the latter Act. [799 F•\n\n800 A] ' The argument that the Acquisition Act was not in fclrce in West Bengal 'generally' because it was extended for short periods from time to time,. could not be accepted.\n\nThe word 'generally' refers to the territory of West Bengal and not to the duration of time during which it had to operate.\n\n[800 B-C] ·~ The contention that because there was no corresponding law within the meaning of s. 17 of the Merger Act and s. 4 of the Assimilation Act, s. 3 of the latter Act did not have the effect of extending the Acquisition Act to Chandernagore must also be rejected. Section 4 has .. a limited effect\n\n79H\n\nSUPRFME COURT REPORTS\n\n(1971 J 3 S.CK.\n\nand that is that if there :s a corrcsj, onding law then that law shall. ; is from that date, stand 'repealed in (handcrnagore. If there is no corresponding law then s. 4 does not operate and it has no effect on the scope ot s. 3. f800 DJ\n\nThe fact that there \":as no la\\v of rcquisifoning of property in French\n\ntrritory could not mean that the citiz'!n enjoyed th~ privilege of in1rnunitv 1rom such a law. If by virtue of s. 3 of the Assimilation of Laws Act .:1n Act hccomcs applicable to Ch; indcrnagorc all Privileges and imn1unities in conflict with the Act would cease to exist. [800 E-FJ B\n\n(ii) The High Court was right in holding that the Collector of Hooj!ly 1u1J the otuthority to issue lhc orders in question. .Jf the order of requisition is by a Collector then the notification of 1948 applies and the C<>l- Jcctoi' of Hoogly \\\\-Ould he authorised to issue orders rcqu:sitioning J.and c.xi'iting in ChanJcrnagorc hecausc Chandernagore had come \\\\:ithin the .limits of his jurisdiction.\n\nThe notification must be construed to refer lo the liMils of the District as it exists on the date of the exercise of the Powers conferred by the notification.\n\nIf the ordei\"s of requisition wcri: issued by the Additional District Magistrale, then he had authority bv virtue of notification dated Sepatember 15, 1959, by which he wos em- .powered to perform the functions of a Collector.\n\nThe said nl1titication amounted to 'special' appointment. of the said officer within the rncanin!! of the definition of 'Collector\"· in the Acquisition Act as it stood in 1959.\n\nTSOO G-801 BJ\n\nC1v1L APPELLAT_E JURISDICTION: Civil Appeal No. 500 of 1967.\n\nAppeal from the judgment and order dated January 13. 1965 of the Calcutta High Court in Appeal from original order No. 10.l of 1963.\n\nArt111 K. Dutt, D. N. Mukherjee and S. Dey, for the appellant.\n\nNiren De, Attorne)'-Genera/ aind P. K. Chakravarti. for the respondents.\n\nThe Judgment of the Court was delivered by F\n\nSikri, C.J.\n\nIn our order dated March I 0, 1970, we stated that we will give our reasons later for rejecting the points raised before us. We now proceed to give. those reasons.\n\nThis is an appeal against .the judgment of the High Court of -Calcutta (Bose, C.J., and Mitra, J;) dismissing the appe:ll of G Sachindra Mohan Nandy and Janandra Mohan Nandy, now appellants before us, against the judgment of Mukharji, J., dischargtng the rule obtained by the appellants under Art. 286 of the Constitution. In order to appreciate the. points rasied before u> it is necessary to state the relevant facts.\n\nOn October 9, 1960 and October 10, 1960, the Collector of -H Hoogly made iwo orders under s. 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948-hereinafter referred to\n\nF ..\n\n',..,\n\nas the Acquisition Act.\n\nThe Collector purported to requisition land belonging to the appellants for certain public purpose&. He had issued the orders in exercise of the powers which had been conferred upon him by notification No, 3775-L.A. dated May 11,\n\n1948, published in the Calcutta Gazette, Part I, on May 27, 1948.\n\nThis notification had authorised the Collector to exercise the powers under s. 3(1) of tl:!.e Acquisition Act. When this notification was passed Chandemagore, where the requisitioned land is situate, was not part of West Bengal and it is on this fact that one argument, shortly to be mentioned, rests.\n\nAccording to the appellants the Acquisition Act has never been extended and made applicable to Chandernagore. For \\lPPreciating this particular poin!. it is necessary 1lo state the history of Chan demagore.\n\nIt is well-known that it was a French settlement in India, and it was only on October 2, 1954, that it was merged in 'the State of Bengal Secfion 3 of the Chandernagore (Merger) Act, 1954 (XXXVI of 1954) provided that Chandernagore shall form part of the State of West Bengal, District of Hoogly, and the . State Government shall provide for the administration of Chandernagore by constituting it into a new sub-division of the District of Hoogly.\n\nSection 17 provided that \"all laws which immediately before the appointed day extend to, or are in force in, the State of West Bengal generally shall, as from that day, extend to, or, as the case may lie. come into force in, Chanderna gore.\" Section 18 has not much relevance but the learned counsel relied on it. Section 18(1) reads thus :\n\n\"18(1) Repeal of Correspondinl! laws and savings : Any law in force in Chandernagore 'immediarely before the appointed day (hereafter in this Act referred to as the\n\n\"correspoing aw\") which corresponds to any law re- !er!cd to m. section 17, whether suh corresponding Jaw 1s m force m Chandemagore by Virtue of the Chail'dernagore (Application of Laws) Order, 1950, or by virrue 0f any notification issued under th~ <; handernagore (Ad ministration) Regulation, 1952 (Reg. 1 of 1952) or otherwise, shall, a. from that duty, stand repealed in Chandernagore.\n\nThe word \"law\" was defined in the Chandernagore (Merger) Act, 1954, as follows: (S. 2(d))\n\n\" \"law\" means so much of any enactment, Ordinance, Regulation, _order, rule, scheme, notification, bye- Jaw or any other mstrument having the force of law as relates to matters Clnumerated in List I and List Ill in the Seventh Schedule to the Constitution.\"\n\nSUPREME COURT .. RBPORTS\n\n[1971] 3 S.CR.\n\n, After this the Legislature of West Bengal enacted the Chan- . demagore (Assimilation of Laws) Act, 1955. Section 2(c) bf this\n\nAct defined \"law\" to mean \"so much of any Act, Ordinance, Regulation, order, rule, scheme, notification, .bye-law or any other instrument having the. force of law as relates to matters enumerated in List II in the Seventh Schedule to the Constitution of India.\" Section 3 provides that \"all laws which immediately before .B the appointed day extend to, or are in force in, the State of West Bengal generally shall, as from that day, extend to, or, as the case may be, come into force in Chandernagore.\" Section 4(1) provided for repeal of corresponding laws and reads :\n\n\"4(1) Any law in force in Chandemagore immediately befpre the appointed day (hereinafter in this Act referred to as \"corresponding law\") which corresponds to any law referred to in section 3, whether such corresponding Jaw is in force in Chandernagore by vir1!ue of 'the Chandernagore (J\\pplication of Laws) Order, 1950\n\nor by virtue of any notification issued under the Chandernagore (Administration) Regulation, 1952, or otherwise, shall as from the day stand repealed in Chandernagore.\"\n\nSection 8, which was inserted in 1959, removed certain doubts regarding the extension of certain acts to Chandernagore, in the following terms :\n\n\"8. Notwithstanding anything .to the contrary, in any judgment or decision of any court1 tribunal or authority, the' following Acts, tha~ is to say,-The West Bengal Land Development and Planning Act, 1948, The West Bengal Non-Agricul•ural Tenancy Act, 1949 and The West Bengal Estates Acquisition Act, 1953 shall extend to and be deemed always to have extended to Chandernagore with effect from the !lppointed day!'\n\nWe may here set out the notifications empowering Sri B. K.\n\nChatterjee, I.AS. to perform the functions of the Collector in the District of Hooghly under the. Acquisition Act.\n\nBy the . first notification dated September 15, 1959, the Governor was pleased \"to specially appoint Sri B. K. Chatterjee, I.AS., Additional District Magistrate, Hooghly, to perform the functions of a Collector .under the said Act in the District of Hooggl.y.\" Another notification issued on the same day had authorisea Sri B. K. Cliatterjee, I.AS., Additional'District Magistrate, Hooghly, to requisition by order in writing any land 'within the local limits of the District of Hooghly. The two requisition orders purport to have been signedby the Collector of Hooghly.\n\n-11.\n\nThe notification dated May 11, 1948, to which reference has been made above reads as follows : \"No. 3775 L.A. (P.W.) 11th May, 1948. In exercise of the powers conferred by Sub-section (1) of Section 3 of the West Bengal Land (Requisition and Acquisition) Act 1948 (West Bengal Act II of 1948), the Governor is pleased hereby to authorise each of the Collector and the Deputy Commissioners mentioned in the Schedule below to requisition, by order in writing, in pursuance of the provisions of the said Sub-section\n\n(1) of the said Section 3, (torn) land within the local limits of his jurisdiction and (torn) to make such further C orders as appear to him to be necessary 'f-Hooghly had the authority to issue the orders of requisition in question. If the order of requisition is by a collectqr, then the no.tification of 1948 applies and the Collector of Hooghly would be authorised to issue orders requisitioning land G existing in Chandemagore because Chandernagore had come within the limits of his jurisdiction. The notification must be construed to refer to the limits , of the District as it exists on the date of the exercise of the powers conferred by the notification. If the orders of requisition were issued by Shri B. K. Chatterjee, l.A.S., Additional District Magistrate, then he had authority by virtue of the notification dated September 15, 1959, mentioned above.\n\nH The learned counsel, referring to the Acquisition Act, as it stood in 1959, and the definition of \"collector\" (\"the Collector of\n\na district and includes a Deputy Commissioner and any officer specially appointed by the State Government to perform the functions of a Collector under this Act) urged that the Additional District Magistrate was not \"specially appointed.\" There is no force in thi; point. The notification of September 15, 1959, amounts to special appointment within the definition of \"Collector.\"\n\nWe referred the following question to the Constitution Bnch which has answered it in the negative :-\n\n\"Whether the West Bengal Land (Requisition and Acquisition) Act 1948 is ultra vires the Constitution under Art. 19(1)(f) read with Art. 19(5) ?\"\n\nIn the result the appeal fails and is dismissed with costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 104, "entities": [{"text": "S\n\nSACHINDRA MOHAN NANDY.& ORS", "label": "PETITIONER", "start_char": 3, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "SACHINDRA MOHAN NANDY.& ORS", "offset_not_found": false}}, {"text": "STATE OF WEST BENGAL & ORS", "label": "RESPONDENT", "start_char": 36, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL & ORS", "offset_not_found": false}}, {"text": "February 19, 1971", "label": "DATE", "start_char": 65, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "February 19, 1971\n\n(S. M. SIKRI, C.J., C. A. VAIDIALINGAM AND V. BHARGAVA, JJ,]\n\nChandernagore (Merger) Act, 1954-Cilandernagore (Assimilation of L<'lt's) Act, 1955-Exten•ion of Wes; Bengal Laws IP Chandernagort territory-Wm Bengal Land (Requisition and Acquisition) Act, 1948 whether applicable to Chandernagore by virtue of Merger and Assimilation\n\nActs afo•esald-Powtr of Collect01 to requisition land whether confined to areo of Hooghly District before merger of Chandernagore. ·"}}, {"text": "S. M. SIKRI, C.J.", "label": "JUDGE", "start_char": 85, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "V. BHARGAVA, JJ", "label": "JUDGE", "start_char": 127, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "Act", "label": "STATUTE", "start_char": 416, "end_char": 419, "source": "regex", "metadata": {}}, {"text": "October 2, 1954", "label": "DATE", "start_char": 645, "end_char": 660, "source": "ner", "metadata": {"in_sentence": "The French settlement of Chandermrgore was merged in the State of West Bengal with effect from October 2, 1954 by virtue of the Chandernagore (Mc'rger) Act, 1954."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 753, "end_char": 758, "source": "regex", "metadata": {"linked_statute_text": "Chandernagore by virtue of Merger and Assimilation\n\nAct", "statute": "Chandernagore by virtue of Merger and Assimilation\n\nAct"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 821, "end_char": 837, "source": "regex", "metadata": {"linked_statute_text": "Chandernagore by virtue of Merger and Assimilation\n\nAct", "statute": "Chandernagore by virtue of Merger and Assimilation\n\nAct"}}, {"text": "West Bengal", "label": "GPE", "start_char": 871, "end_char": 882, "source": "ner", "metadata": {"in_sentence": "By s. 17 of the Merger Act the laws relating to Lists I and III of the Seventh Schedule to the Constitution, in force in West Bengal 'generally' were extended to the merged territory."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 938, "end_char": 943, "source": "regex", "metadata": {"linked_statute_text": "Chandernagore by virtue of Merger and Assimilation\n\nAct", "statute": "Chandernagore by virtue of Merger and Assimilation\n\nAct"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1066, "end_char": 1070, "source": "regex", "metadata": {"linked_statute_text": "Chandernagore by virtue of Merger and Assimilation\n\nAct", "statute": "Chandernagore by virtue of Merger and Assimilation\n\nAct"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 1124, "end_char": 1140, "source": "regex", "metadata": {"linked_statute_text": "Chandernagore by virtue of Merger and Assimilation\n\nAct", "statute": "Chandernagore by virtue of Merger and Assimilation\n\nAct"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1213, "end_char": 1217, "source": "regex", "metadata": {"linked_statute_text": "Chandernagore by virtue of Merger and Assimilation\n\nAct", "statute": "Chandernagore by virtue of Merger and Assimilation\n\nAct"}}, {"text": "May 11, 1948", "label": "DATE", "start_char": 1366, "end_char": 1378, "source": "ner", "metadata": {"in_sentence": "The Collector of Hoogly in exercise of Powers conferred on him by notification dated May 11, 1948 made two orders under s. 3(1) of the Acquisition Act."}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 1401, "end_char": 1408, "source": "regex", "metadata": {"linked_statute_text": "Chandernagore by virtue of Merger and Assimilation\n\nAct", "statute": "Chandernagore by virtue of Merger and Assimilation\n\nAct"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1484, "end_char": 1492, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Hooghly District", "label": "GPE", "start_char": 1970, "end_char": 1986, "source": "ner", "metadata": {"in_sentence": "It was contended : (i) that the clrders of requisition were illegal as the Acquisition Act under which they were issued did not apply to the territory pre\\fously known as French Chandernagore; (ii) that under the notitjcation dated May 11, 1948 the Collector could exercise the powers of requisition only in respect of lands within the locaniinits of the territories then fotming part of the Hooghly District."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 2035, "end_char": 2044, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandernagore", "label": "GPE", "start_char": 2090, "end_char": 2103, "source": "ner", "metadata": {"in_sentence": "Section 3 of the Chandernagore (Merger) Act, 1954 made Chandernagore part of the State.of West Bengal and s. 17 extended the Acquisition Act to it."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2141, "end_char": 2146, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 2372, "end_char": 2388, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2586, "end_char": 2590, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2650, "end_char": 2655, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 2745, "end_char": 2752, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 3178, "end_char": 3183, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 3206, "end_char": 3210, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3236, "end_char": 3240, "source": "regex", "metadata": {"statute": null}}, {"text": "Act did not have the effect of extending the Acquisition Act", "label": "STATUTE", "start_char": 3255, "end_char": 3315, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 3356, "end_char": 3365, "source": "regex", "metadata": {"linked_statute_text": "Act did not have the effect of extending the Acquisition Act", "statute": "Act did not have the effect of extending the Acquisition Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 3601, "end_char": 3605, "source": "regex", "metadata": {"linked_statute_text": "Act did not have the effect of extending the Acquisition Act", "statute": "Act did not have the effect of extending the Acquisition Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3660, "end_char": 3664, "source": "regex", "metadata": {"linked_statute_text": "Act did not have the effect of extending the Acquisition Act", "statute": "Act did not have the effect of extending the Acquisition Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3859, "end_char": 3863, "source": "regex", "metadata": {"linked_statute_text": "Act did not have the effect of extending the Acquisition Act", "statute": "Act did not have the effect of extending the Acquisition Act"}}, {"text": "TSOO G-801 BJ", "label": "JUDGE", "start_char": 5003, "end_char": 5016, "source": "ner", "metadata": {"in_sentence": "TSOO G-801 BJ\n\nC1v1L APPELLAT_E JURISDICTION: Civil Appeal No."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 5145, "end_char": 5164, "source": "ner", "metadata": {"in_sentence": "1965 of the Calcutta High Court in Appeal from original order No."}}, {"text": "Art111", "label": "PROVISION", "start_char": 5214, "end_char": 5220, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "K. Dutt", "label": "LAWYER", "start_char": 5221, "end_char": 5228, "source": "ner", "metadata": {"in_sentence": "Art111 K. Dutt, D. N. Mukherjee and S. Dey, for the appellant."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 5230, "end_char": 5245, "source": "ner", "metadata": {"in_sentence": "Art111 K. Dutt, D. N. Mukherjee and S. Dey, for the appellant."}}, {"text": "S. Dey", "label": "LAWYER", "start_char": 5250, "end_char": 5256, "source": "ner", "metadata": {"in_sentence": "Art111 K. Dutt, D. N. Mukherjee and S. Dey, for the appellant."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 5278, "end_char": 5286, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorne)'-Genera/ aind P. K. Chakravarti."}}, {"text": "P. K. Chakravarti", "label": "LAWYER", "start_char": 5311, "end_char": 5328, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorne)'-Genera/ aind P. K. Chakravarti."}}, {"text": "F\n\nSikri", "label": "JUDGE", "start_char": 5395, "end_char": 5403, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by F\n\nSikri, C.J.\n\nIn our order dated March I 0, 1970, we stated that we will give our reasons later for rejecting the points raised before us."}}, {"text": "High Court of -Calcutta (Bose, C.J.,", "label": "COURT", "start_char": 5623, "end_char": 5659, "source": "ner", "metadata": {"in_sentence": "This is an appeal against .the judgment of the High Court of -Calcutta (Bose, C.J., and Mitra, J;) dismissing the appe:ll of G Sachindra Mohan Nandy and Janandra Mohan Nandy, now appellants before us, against the judgment of Mukharji, J., dischargtng the rule obtained by the appellants under Art."}}, {"text": "Mitra", "label": "JUDGE", "start_char": 5664, "end_char": 5669, "source": "ner", "metadata": {"in_sentence": "This is an appeal against .the judgment of the High Court of -Calcutta (Bose, C.J., and Mitra, J;) dismissing the appe:ll of G Sachindra Mohan Nandy and Janandra Mohan Nandy, now appellants before us, against the judgment of Mukharji, J., dischargtng the rule obtained by the appellants under Art."}}, {"text": "G Sachindra Mohan Nandy", "label": "JUDGE", "start_char": 5701, "end_char": 5724, "source": "ner", "metadata": {"in_sentence": "This is an appeal against .the judgment of the High Court of -Calcutta (Bose, C.J., and Mitra, J;) dismissing the appe:ll of G Sachindra Mohan Nandy and Janandra Mohan Nandy, now appellants before us, against the judgment of Mukharji, J., dischargtng the rule obtained by the appellants under Art."}}, {"text": "Janandra Mohan Nandy", "label": "PETITIONER", "start_char": 5729, "end_char": 5749, "source": "ner", "metadata": {"in_sentence": "This is an appeal against .the judgment of the High Court of -Calcutta (Bose, C.J., and Mitra, J;) dismissing the appe:ll of G Sachindra Mohan Nandy and Janandra Mohan Nandy, now appellants before us, against the judgment of Mukharji, J., dischargtng the rule obtained by the appellants under Art."}}, {"text": "Mukharji", "label": "JUDGE", "start_char": 5801, "end_char": 5809, "source": "ner", "metadata": {"in_sentence": "This is an appeal against .the judgment of the High Court of -Calcutta (Bose, C.J., and Mitra, J;) dismissing the appe:ll of G Sachindra Mohan Nandy and Janandra Mohan Nandy, now appellants before us, against the judgment of Mukharji, J., dischargtng the rule obtained by the appellants under Art."}}, {"text": "Art. 286", "label": "PROVISION", "start_char": 5869, "end_char": 5877, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "October 9, 1960", "label": "DATE", "start_char": 6000, "end_char": 6015, "source": "ner", "metadata": {"in_sentence": "On October 9, 1960 and October 10, 1960, the Collector of -H Hoogly made iwo orders under s. 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948-hereinafter referred to\n\nF ..\n\n',..,\n\nas the Acquisition Act."}}, {"text": "October 10, 1960", "label": "DATE", "start_char": 6020, "end_char": 6036, "source": "ner", "metadata": {"in_sentence": "On October 9, 1960 and October 10, 1960, the Collector of -H Hoogly made iwo orders under s. 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948-hereinafter referred to\n\nF ..\n\n',..,\n\nas the Acquisition Act."}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 6087, "end_char": 6094, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 6596, "end_char": 6603, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandemagore", "label": "GPE", "start_char": 6665, "end_char": 6677, "source": "ner", "metadata": {"in_sentence": "When this notification was passed Chandemagore, where the requisitioned land is situate, was not part of West Bengal and it is on this fact that one argument, shortly to be mentioned, rests."}}, {"text": "According to the appellants the Acquisition Act", "label": "STATUTE", "start_char": 6823, "end_char": 6870, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 7083, "end_char": 7088, "source": "ner", "metadata": {"in_sentence": "It is well-known that it was a French settlement in India, and it was only on October 2, 1954, that it was merged in 'the State of Bengal Secfion 3 of the Chandernagore (Merger) Act, 1954 (XXXVI of 1954) provided that Chandernagore shall form part of the State of West Bengal, District of Hoogly, and the ."}}, {"text": "State of Bengal", "label": "ORG", "start_char": 7153, "end_char": 7168, "source": "ner", "metadata": {"in_sentence": "It is well-known that it was a French settlement in India, and it was only on October 2, 1954, that it was merged in 'the State of Bengal Secfion 3 of the Chandernagore (Merger) Act, 1954 (XXXVI of 1954) provided that Chandernagore shall form part of the State of West Bengal, District of Hoogly, and the ."}}, {"text": "Section 17", "label": "PROVISION", "start_char": 7480, "end_char": 7490, "source": "regex", "metadata": {"linked_statute_text": "According to the appellants the Acquisition Act", "statute": "According to the appellants the Acquisition Act"}}, {"text": "Chanderna", "label": "GPE", "start_char": 7705, "end_char": 7714, "source": "ner", "metadata": {"in_sentence": "come into force in, Chanderna gore.\""}}, {"text": "Section 18", "label": "PROVISION", "start_char": 7722, "end_char": 7732, "source": "regex", "metadata": {"linked_statute_text": "According to the appellants the Acquisition Act", "statute": "According to the appellants the Acquisition Act"}}, {"text": "Section 18(1)", "label": "PROVISION", "start_char": 7794, "end_char": 7807, "source": "regex", "metadata": {"linked_statute_text": "According to the appellants the Acquisition Act", "statute": "According to the appellants the Acquisition Act"}}, {"text": "section 17", "label": "PROVISION", "start_char": 8052, "end_char": 8062, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 2(d)", "label": "PROVISION", "start_char": 8461, "end_char": 8468, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 8690, "end_char": 8706, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT", "label": "COURT", "start_char": 8730, "end_char": 8743, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT .. RBPORTS\n\n[1971] 3 S.CR."}}, {"text": "Legislature of West Bengal", "label": "ORG", "start_char": 8789, "end_char": 8815, "source": "ner", "metadata": {"in_sentence": ", After this the Legislature of West Bengal enacted the Chan- ."}}, {"text": "Section 2(c)", "label": "PROVISION", "start_char": 8879, "end_char": 8891, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 9115, "end_char": 9131, "source": "regex", "metadata": {"statute": null}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 9139, "end_char": 9160, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 9163, "end_char": 9172, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 4(1)", "label": "PROVISION", "start_char": 9404, "end_char": 9416, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 3", "label": "PROVISION", "start_char": 9653, "end_char": 9662, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 9963, "end_char": 9972, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "West Bengal Land Development and Planning Act, 1948", "label": "STATUTE", "start_char": 10262, "end_char": 10313, "source": "regex", "metadata": {}}, {"text": "Tenancy Act, 1949", "label": "STATUTE", "start_char": 10348, "end_char": 10365, "source": "regex", "metadata": {}}, {"text": "West Bengal Estates Acquisition Act, 1953", "label": "STATUTE", "start_char": 10374, "end_char": 10415, "source": "regex", "metadata": {}}, {"text": "B. K.\n\nChatterjee", "label": "LAWYER", "start_char": 10579, "end_char": 10596, "source": "ner", "metadata": {"in_sentence": "We may here set out the notifications empowering Sri B. K.\n\nChatterjee, I.AS.", "canonical_name": "B. K.\n\nChatterjee"}}, {"text": "Hooghly", "label": "GPE", "start_char": 10665, "end_char": 10672, "source": "ner", "metadata": {"in_sentence": "to perform the functions of the Collector in the District of Hooghly under the."}}, {"text": "September 15, 1959", "label": "DATE", "start_char": 10736, "end_char": 10754, "source": "ner", "metadata": {"in_sentence": "first notification dated September 15, 1959, the Governor was pleased \"to specially appoint Sri B. K. Chatterjee, I.AS.,"}}, {"text": "B. K. Chatterjee", "label": "JUDGE", "start_char": 10807, "end_char": 10823, "source": "ner", "metadata": {"in_sentence": "first notification dated September 15, 1959, the Governor was pleased \"to specially appoint Sri B. K. Chatterjee, I.AS.,", "canonical_name": "B. K.\n\nChatterjee"}}, {"text": "B. K. Cliatterjee", "label": "JUDGE", "start_char": 11026, "end_char": 11043, "source": "ner", "metadata": {"in_sentence": "Another notification issued on the same day had authorisea Sri B. K. Cliatterjee, I.AS.,", "canonical_name": "B. K.\n\nChatterjee"}}, {"text": "11th May, 1948", "label": "DATE", "start_char": 11397, "end_char": 11411, "source": "ner", "metadata": {"in_sentence": "3775 L.A. (P.W.) 11th May, 1948."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 11471, "end_char": 11480, "source": "regex", "metadata": {"statute": null}}, {"text": "West Bengal Act", "label": "STATUTE", "start_char": 11545, "end_char": 11560, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 11810, "end_char": 11819, "source": "regex", "metadata": {"linked_statute_text": "West Bengal Act", "statute": "West Bengal Act"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12602, "end_char": 12611, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandernaore", "label": "GPE", "start_char": 12659, "end_char": 12671, "source": "ner", "metadata": {"in_sentence": "Section 3 of the Chandernago1e (Merger) Act, 195.4, made Chandernaore part of tbe State of West Bengal, and s. 17 extended the Acquisition Act to it."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 12710, "end_char": 12715, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 12822, "end_char": 12829, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 12941, "end_char": 12957, "source": "regex", "metadata": {"statute": null}}, {"text": "Insofar as the Acquisition Act", "label": "STATUTE", "start_char": 13538, "end_char": 13568, "source": "regex", "metadata": {}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 13774, "end_char": 13781, "source": "regex", "metadata": {"linked_statute_text": "Insofar as the Acquisition Act", "statute": "Insofar as the Acquisition Act"}}, {"text": "March 31, 1957", "label": "DATE", "start_char": 14103, "end_char": 14117, "source": "ner", "metadata": {"in_sentence": "In 1954 it was provided that it shall remain in force upto March 31, 1957."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 14465, "end_char": 14470, "source": "regex", "metadata": {"linked_statute_text": "Insofar as the Acquisition Act", "statute": "Insofar as the Acquisition Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 14516, "end_char": 14520, "source": "regex", "metadata": {"linked_statute_text": "Insofar as the Acquisition Act", "statute": "Insofar as the Acquisition Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14577, "end_char": 14581, "source": "regex", "metadata": {"statute": null}}, {"text": "Act did not have the effect of extending the Acquisition Act", "label": "STATUTE", "start_char": 14596, "end_char": 14656, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 14723, "end_char": 14732, "source": "regex", "metadata": {"linked_statute_text": "Act did not have the effect of extending the Acquisition Act", "statute": "Act did not have the effect of extending the Acquisition Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 14915, "end_char": 14919, "source": "regex", "metadata": {"linked_statute_text": "Act did not have the effect of extending the Acquisition Act", "statute": "Act did not have the effect of extending the Acquisition Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14974, "end_char": 14978, "source": "regex", "metadata": {"linked_statute_text": "Act did not have the effect of extending the Acquisition Act", "statute": "Act did not have the effect of extending the Acquisition Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 15345, "end_char": 15349, "source": "regex", "metadata": {"linked_statute_text": "Act did not have the effect of extending the Acquisition Act", "statute": "Act did not have the effect of extending the Acquisition Act"}}, {"text": "Chandetnagore", "label": "GPE", "start_char": 15411, "end_char": 15424, "source": "ner", "metadata": {"in_sentence": "If by virtue of s. 3 of the Assimilation of Laws Act an Act becomes applicable to Chandetnagore all privileges and immu- llities in conflict with that Act would cease to exist."}}, {"text": "Constitution Bnch", "label": "RESPONDENT", "start_char": 16857, "end_char": 16874, "source": "ner", "metadata": {"in_sentence": "We referred the following question to the Constitution Bnch which has answered it in the negative :-\n\n\"Whether the West Bengal Land (Requisition and Acquisition) Act 1948 is ultra vires the Constitution under Art."}}, {"text": "Art. 19(1)(f)", "label": "PROVISION", "start_char": 17024, "end_char": 17037, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(5)", "label": "PROVISION", "start_char": 17048, "end_char": 17058, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}]} {"document_id": "1971_3_802_814_EN", "year": 1971, "text": "so~\n\nASSTT. COLLECTOR OF CUSTOMS\n\nCHARAN DAS MALHOTRA February 19, 1971\n\n[J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.J\n\nCustoms Act (52 of 1962), s. 110 (I) and (2) and proviso-Power of extension of period,\"· quasi judicie rode is controlled by the provisions of the Limitation Act, 1908. [828 A-CJ\n\nKandaswami Pillai v. Kmn4oDa Chetty, A.LR. 1952 Mad. 186 (F.B.), Durg v. Poncham, I.L.R. [1939] All. 647, Sitaram v. Chunnilalsa, I.L.R. [1944] Nag. 250, Amarendra v. Manindra, A.I.R. 1955 Cal. 269, Kris/ma Chwdra v Paravatammo, A.l.R. 1953 Orissa 13 and Ramgopa/ v. Sldram,\n\nA.LR. 1943 Born. 164 referred to.\n\nPer Jaganmohan Reddy, J.-(Concurring) No question of a vested right or privilege arose to entitle the respondent to challenge execufon proceedings in Morena Court. The decree granted by the Bankura Court was executable by the Courts governed by the sai:ne Code, by t'i, Court which passed it or by the Court to which it , was transf,, red.\n\nOnce the Code was made applicable to the whole of India by Amendment Act II of 1951 the decree was no loner a foreign d, ecree aua the Morena Court which was a court under the Code to which the Bankura Court could transfer the decree for execution. No doubt in Shitole's case it was ob served that s. 13 nf the Code creates substantive ri2hts and nnt merely procedural and therefore defences that were open to the resooi.dent• were not taken away bv any constitutional changes, but the ratic of the decision was that the Gwalior Court not bein~ a court that n8'•ed the d cree after the comin~ into force of Act TJ of 1951 the Allaha\"ad r'ott'1 could not execute it. The imnediment did not exist nnw in t1'at the RRnkura Court had t•an•ocedure Code presents' a bar Of limitation was also not tenable. [831 E-H]\n\n818 SUPRllMt: GOU.RT REPORTS\n\n[1971] 3 S.C.R\n\n\ndiscussed.\n\nCIVIL APPELLA\"IE Ju1ushicnoN : Civil Appeal No. 2427 0of 1966.\n\nAppeal by special leave from the judgment and order dated August 27, 1964 of the Madhya Pradesh High Court in Misc.\n\nAppeal No. 20 of 1964.\n\nS. C. Majumdar and R. K. Jain, for the appellant.\n\nW. S. Bar/ingay, Ramesh Mali and Ganpat Rai, for the\n\nrespont.\n\nThe Judgment ot.S. M. S!KRI, C.J., G. K. MITTER, K. S.\n\nHEGDE and v. BHARGAVA, JJ. was delivered by HEGDE, J.\n\nJAGANMOHAN REDDY, J. gave a separate Opinion: Hegde, J.\n\nThis is an execution appeal. The decree-holders are the appelbnts here.in.\n\nThis case has a long and chequered history.\n\nThe decree-holders obtained a decree against the respondents in the court of Sub-Judge, Bankura (West Bengal) for a sum of over Rs. 12,000/-, on December 3, 1949. On March 28, 1950 they applied to the court which passed the decree to transfer the decree together with a certificate of non-satisfaction to the court at Morena in the then Madhya Bharat State for execution.\n\nIt was ordered accordingly.\n\nThe execution proceedings commenced in the courf of Additional District Judge at Morena on Sep'ember 21, 1950 (Money Execution Case No. 8 of 1950).\n\nThe judgment-debtors resisted !he execution on the ground that the court had no jurisdiction to execute the same as the decree was that of a foreigu. court and that the same had been passed exparte.\n\nThe court accepted that contention and dismissed the execution petition on December 29, 1950.\n\nOn April 1, 1951 the Code of Civil Procedure (Amendment) Act, (Act II of 1951) came into force.\n\nAs a result of that the Code of Civil Procedure (in short the 'Code') was extended to the former State of Madhya Bharat as well as as to various other places.\n\nMeanwhile the decree-holders appealed against the order of the learned Additional District Judge, Morena dismissing the execution petition, to the High Court of Madhya Pradesh.\n\nThe Madhya Pradesh\n\nHih Court allowed their appeal.\n\nAs against that the judgmentdebtors appealed to this Court. This Court allowed the appeal of the judgment-debtors and restored the order of the learned Ad it was governed by a law passed by the then Madhya Bharat State.\n\nIn lhe course of its judgment this Court observed that unqer 'the Code' \"a decree can be .executed by !\\ court which passed the decree or to which it was transferred for executiQn and the decree which could be transferred has to be a decree passed under the Code and the court to which it could be transferred has to be a court which was governed by the Indian Code -0f Civil Procejure\".\n\nThe first stage of the execution proceedings came to an end by the decision 0f this Court rendere.\n\nSection 20 ( c) of 'the Code' confers jurisdiction on a court in India over the foreigners if the cause of action arises within the jurisdiction of that court.\n\nHence the observation of the Board quo:ed in some of the decisions of the courts in India including the decision of this Court in Shitole's case(') that such a decree is an 'absolute nullity' may not be apposite. It may be more appropriate to say that the decree i.n ques'ion is not executable in courts outside this country. The board itself had noticed that this rule of Private International law is subject to special local legislation.\n\nClause ( c) of s. 20 of 'the Code' provided at the relevant time and still provides that subject to the limitations mentioned in the earl; er sections of 'the Code', a suit can be instituted in a court within the local limits of whose jurisdiction the cause of action. wholly or in part, arises.\n\nThere is no dispute in this case that the cause of action for the suit which led up to the decree under execu'ion arose within the jurisdiction of Bankura court.\n\nHence it must be held that the suit in question was a proper'y insti'uted suit.\n\nFrom that it fol'ows that the decree in question is a valid decree though it miht not have been executable at one stage in courts in the former Indian States.\n\nThis takes us to ss. 38 and 39 o.f 'the Code'.\n\nSection 38 provides that a decree may be execu'ed either bv the c0urt which passed it, Of by the court to which it is sent foi execution. Sec tion 39(1) to the extent it is material for our present purpose prescribes :\n\n\"The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court-\n\n( a) if the person a!lainst whom the decree is passed actually and voluntarily resides or carries on busmess, or personallv work; s. for gain within the local .limits of the jurisdiction of such other Court ..... ·\"\n\n(1) [1963) 2 S.C.R. 577.\n\nF ·-\n\nG -.\n\nLALJI RAJA v. FIRM HANSRAJ (Hegde, J.) '823\n\nSection 40 prescribes :\n\n\"Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.\" Ru'es are defined in s. 2 ( 12) as meaning Rules and Form; .:ontained in the 1st Schedule or made 1mdcr s .. 122 or s. 125 of 'the Code'.\n\nOn a combined reading of ss. 2(12), 33, 39 and 40, it follows that a decree can be transferred for execution only to a court to which 'the Code' applies.\n\nThis is what was ruled by this Court in Hansraj Nathu Ram v. Lalji Raja and som\n\nof Bankura(1).\n\nBut by the date the impugned .transfer was made, 'the Code' had been extended to the whole of India.\n\nIn fact the court to which the decree was transferred is now an entirely new court in the eye of the law-see the decision of this Court in Shitole's case(').\n\nFrom the foregoing discussion, it follows that the decree under execution is not a foreign decree and its transfer to the Morena court is in accordance with the provisions of 'the Code'.\n\nThat being so, the decree under execution satisfies the dictum of this Court in Hansraj Na•hu Ram v. Laiji Raja and sons( 1) that \"a decree can be executed by a court which passed the decree or to which it was transferred for execu'.ion and the decree wh'ch could be transferred has ito be a decree passed under the Code and the Court to which it cou\\1 be transferred has to be a Court which was governed by the Indian Code of Civil Procedure.\"\n\nIt was next urged on behalf of the judgment-debtor that in view of the decision of this Court in Shit,, le's cave (supra) we must hold that the decree is a nullity and that it cannot be exe- .:uted at all in the courts situate in the former State of Madhya Bharat.\n\nIn Shitole's case ( sunra) this Court was called upon to consider a converse case.\n\nTherein the decree under execution was one pased l:>v a court in Gwalior State in a suit instituted in May 194 7. The defe\"dqnt~ were 1he rey afticle 183 or bys. 48 of 'the Code', the periQlf of lllnitation is three years or where a certified copy of the decree or order has been registered-six years.\n\nThe time from which the period was to run is set out in the 3rd column of the Sch.\n\nThe argumen, advanced on behalf of the judgment-debtors is that s. 48 is a self-contained s:;<>de and the period prescribed therein is a bar and not a period of limitation and hence the decree-holders cannot take the benefit of s. 14(2). In support of this argument reliance is placed on sub-s. 2 (a) of s. 48 of 'the Code'.\n\nThat sub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the period pr(\\scribed under s. 48 (1) can be extended.\n\nBy implication it can be urged that the period prescribed under s. 48 ( 1) of the Code can only be extended under the circumstances mentioned in that clause and not otherwise.\n\nBut in assessing the correctness of that contntion we have to take into consideration cl. (b) A of sub-s. (2) of s. 48 of the Code' as well as Arts. 181 and 182 of the Limitation Act, 1908.\n\nThese provisions clearly go to indicate that the period prescribed under s. 48( 1) of 'the Code' is a period of limitation.\n\nThis conclusion of ours is strengthened by the subsequent history of the legislation.\n\nBy the Limitation .t< Act 1963, s. 48 of 'the C.;>de' is deleted.\n\nIts place has now been B taken by Art. 136 of the Limitation Act of 1963.\n\nAt one stage, there was considerable conflict of judicial opinion as to whether s. 48 is controlled by the provisions of the Limitation Act 1908.\n\nBut the High Courts which had earlier taken the view that s. 48 prescribes a bar and not limitation have now revised their opinion.\n\nThe opinion amongst the High Courts is now unanimous that s. 48 of 'the Code' is controlled by the provisions of the Limitation Act, 1908-see Kandaswami Pillai\n\nv. Kamappa Chett; r(1); Dirg v. Pancham(')'; Sitaram v. Chun, nilal>a( 3 ); Amarendra v.\n\nManindra('j; Krishna Chandra v.\n\nParavatamma('); -and Ramgopal v. Sidram(\").\n\nWe are of the opinion that the ratio of the above decisions correctly lays down the law.\n\nThat apart, it would not be appropriate to unsettle the settled position in law.\n\nFor the rasons mentioned above this appeal is allowed and the order of the High Court is set aside and that of the trial court restored.\n\nThe executing court is directed to proceed with the execution. The respondents shall pav 1he costs of the appellants both in this Court as well as in the High Court.\n\nP. Jaganmohan Reddy, J.\n\nI agree with my learned\n\nbrother Hedge J., that the Appeal should be al!owed.\n\nIn the F case of Kishendas v.\n\nInda Carnatic /Jank Lrd.(') I had whi'e delivering the Judgment of the Bench expressed certain views which may appear to conflict with the view now taken.\n\nIn that case the executability of a decree passed by the Madras High Court in 1940 by the City Civil Court Hyderabad on the ground of its binQ a foreiQtJ decree was called in question. The Respondent G went into linnid\"tion \"\"d a liquidator was aopointed by the original side of Madras High Court. The liquidator filed an appli- ,. cation under Sec. 191 of the Indian Companies Ac• for the recoverv of g sum of Rs. 1375 from the Aopellant whci was a subject of H.E.H the Nizam and a resident of Hyderabad on account\n\n(1) A.LR. 19'7 M, d.1\"6 (F.B.).\n\n(2) T.L.R. [10101 All.''' H\n\n(3) I.LR. [19•4] N°g.250.\n\n(4) A.•.R. 1955 Col. 269.\n\n(5) A.J.R. 1953 Orissa 13.\n\n(6) <\\.l.R. 1943 Born. 164.\n\n(7) A.I.R. 1958 A.P. 407.\n\nLALJI RAJA v. FIRM HANSRAJ (Jaganmohan Reddy,/.) 829\n\nof unpaid calls and the Court passed an ex-parte decree on 15-8-19+0 against the appellant.\n\nTne , iquidator fielj an execution petition in that Court praying for a transfor of the decree to the City Civil Court Hyderabad which was ordered on 15-3-1951 when the Hyderabad Civil Procedure Code was in force in the Hyderabad Sta~~. under which the decree of the Madras High Court would be a foreign decree and the only way in which the liquidator could recover the decreetal amount was by filing a suit on that decree.\n\nNo doubt the Madras High Court could not on that date i.e. 15-3-1951 pass an order directing the transfer of the decree as it was to a Court which was not govrned by the Indian Civil Procedure Code (hereinafter called the Code) nor on that date were there any reciprocal arrangements for executing those decrees in the Hyderbad State. Madras High Court could not therefore transfer a decre~ passed by it for execution to a Court which did not satisfy the provisions of Sections 43 to 45 on that date. It did not also appear from the facts of that case whe.her any notice was served on the appellant but follwing the decision of the m'j1rilv of the High C.1urts in :his count')'\n\nand also relying on the observations of their Lordships of the Privy Council in Sardar Gur1ayal Singh v. R1ja of Faridko•a(1) that a decree pronounced iirl absentum by a foreign Cou•t the Jurisdiction to which. the defendant has not in any way submitted himself is by international law a nullity, I also took the view that the non-executability of the decree is to be cktermined as on the date on which it was passed and that no distinction can conceivably be made between the decree passed by British Indian Courts before the merger or before the Independence when it was a foreign decree and a decree passed by th~ Courts of a n•tive State before the Tndependnce or merger in both cases the character of the Judgment would be that of a foreign Judgment and if it suffers from snv want of jurisdiction or otherwise it will con\n\ntinue to be subject to that defect. This Court had also expressed a similar view in Raj Rajendra Sardar Malaji Marsinh Rao Shito/e v. Sri Shankqr Saran & Ors. ( 2 ) when it held that an ex nnr•e clecree nassec1 in 1948 by the Gwalior Court against residents of U.P. who did not apoear was not execu•able in Allahabad even thouoh the Gwalior Court had transfe'Te'1 the decree in October 1957 af•er the Civil Proce'1ure Ame11dment\n\nAct TT of 19~1 cnme in•o force af•er which the GwoJior C<'urt was a Court unrler the Cnde.\n\nIt was helP. Gwalior Court did not change its na•ion•lity in spite of snhseouent C\"mti'utiona1 chanQes or amen'1men•s in\n\nthe ('Nie of Civil Procerlure. that if a decree was unenforceah'o~ in\n\n<1 narticnlar Court \"t the time it was passed it wulcl n0t bec0me enforceable and valid simply because of the political changes that\n\n(!) 21 I.A. 171.\n\n(2) [1963]2 S.C.R. 577.\n\ntook place unless there is a specific provision to the contrary and A tbat the decree being a nullity outside the. Courts of the United States (Madhya Bharat) in the absence of any specific provision it could not be enforced in the United States (Madhya Bharat).\n\nKapur J., speaking for himself, Rajagopala Ayyangar and Mud-\n\nJolker JJ., observed at pages 594-595 thus:-\n\n\"It will not be correct to say that the decree which was a nullity before the Constitution came into force suffered only from the defect of enforcibility by execution. Sec. 13 creates substantive rights and is not merely procedural and. therefore defences which were open to the Respondents were not taken away by any Constitutional changes in the absence of a specific provision to the contrary. lt is erroneous to say therefore that the decree of the Gwalior Court was unenforceable when passed because .of some impediment which the subsequent Constitutional changes had removed; but thaf decree suffered from a more fundamental defect of being a nullity and the rights and liabilities created under it remaiped unaffected by subsequent changes\".\n\nThe contention that the decree of the Gwalior Court could be executed after its transfer on September 14, 1951 when the Civil Procedure Code came into force throughout India by virtue of Act II of 19 51 and that therefore the Gwalior Court had the power to transfer the decree which the Allahabad Court had under the law authority to execute was also negatived for the reason that the \"Court which madv a court in Gwalior State in a suit instituted in May 194 7."}}, {"text": "U.P.", "label": "GPE", "start_char": 25344, "end_char": 25348, "source": "ner", "metadata": {"in_sentence": "The defe\"dqnt~ were 1he rescheme consistent with the constitutional guarantee for reservation of appointments to posts or promotions in favour of any backward class of citizens which, in the opinion of the- State, was not adequately represented in the services.\n\nIt is common ground that no such scheme as was envisaged was devised. It has, however, been stated in the present return\n\nA that certain rules have been promulgated by a notification No.\n\nS.R.O. 460 dated August 19, 1969. In the meantime the officers concerned of the Education Department of the State thought of an ingenious device of givg ostep.sible effect to e decisio!l of this Court. Those teachers who were respondents m the previous\n\nwrit. petition and whose promotions became illegal in . view . f the pronouncement of this Court were ordered to be ad1usted m non-gazetted cadre of which the grade was Rs. 150-5~. ey were \"allowed to work against the posts they were holmg pnor to their reversion\" on temporary basis. Numerous copies of the orders which have been annexed fo the petition show that this was the common pattern that was followed. A new nomenclature was evolvedfor the post of Head Masters. They were called Teachersin-charge.\n\nThey were to get the srufle salary which they were getting when they were in 1he gazetted cadre of Rs. 300-600. For instance, if A was working as Head Master in the gazetted post and was drawing a salary of Rs. 300/- per month according to the scale of Rs. 360-600 he was stated to have been adjusted in his own grade and on his own pay i.e., in the grade of Rs. 150-500. He was still to get a salary of Rs. 350/- which he would not have got if he had originally not been promoted to the gazetted cadre.\n\nIn other words although such a teacher was brought into the non-gazetted cadre from the gazetted grade his emoluments and his posting as Head of an institution were not affected.\n\nIt is not disputedl that ordinarily he could not hiwe been appointed to that post being far junior to the petitioners according to the seniority list of the non-gazetted cadre to which originally he and the petitioners belonged.\n\nIt has been stated soniewhat tamely in the return of respondents 1 and 2 that when these teachers who were affected by the decision of this Court had been promoted -to the gazetted cadre npt only seniority but merit had. also been taken into consideration. But it has not been denied and this fact has been admitted before us in the course of . arguments that but for the so called communal policy these teachers would not have been promoted to the gazetted cadre even , ough merit and other factors had entered into their promotion mter-se. As regards the other respondent teachers who did not . figure in the .earlier petition, they were all promoted to the gazet- G ted cadre pnor and subsequent to the previous decisiott in complete defiance of the law laid down by this Court. Such a course has been sought to be justified on the tenuous ground that they were not parties to the previous petition and therefore their case.< would not be governed by the decision give!) in tli.at petition. It may be observed immediately that such a position is wholly un\n\ntnable and misconceived. The judgment which was delivered d not m~ely declare the promotions granted to the respondents H\n\nm the petition filed at the previous stage as unconsiitutional but also laid down in clear and unequivocal tenns that the distribution\n\n\n-0f appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16.\n\nThe law so de.clared by this Court was binding Ql1 the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were-parties or not to the previous petition.\n\nIn para 20 of the petition instances have been given which show that in spite al the judgmi:mt of this Court certain teachers who had been promoted to the post of Head Masters are still Head Masters though they are very much below Kashmiri Pandit teachers in the list of seniority. Fot instance, Mohd. Yusuf Masoodi who was respondent No. 52 in the previous writ petition had been promoted to the post gf Head Master, Nowhatta. Even after the judgment he was continuing as Head Master although he was placed at No. 243 in the seniority list of 1961. Messrs.\n\nDeva Kaul and Dwarika Nath were 68 and 76 respectively in that seniority list wre working as teachers under him in the same school.\n\nMasoodi was drawing a salary above Rs. 3~0/ per month whereas the two Kashmiri Pandit teachers were dawing -0nly Rs. 300/- though both of them were senior to him and were not in the same grade of Rs. 150-500 to which Masoodi is stated to have been reverted. Similarly those teachers who were given promotions after the appointments on communal basis had been struck down had been promoted following the same rule.\n\nIn para 22 an insiance is given of Ghulam Mohiuddin Wani-who had been promoted as Teacher-in-Charge High School Shogapore. It is stated that his name did not appear in the seniority list whereas Triloki Nath Kaul was much senior to him but was workfog as a teacher under him although the salary which Kaul was getting was Rs. 250/- per month and the salary which Wani was drawing was only Rs. 210/- per month. In the return respondents 1 and 2 have not contr, adicted the facts stated in para 20 of the petition but have taken .certain pleas of general nature and of legal character. Similarly with regard to para 22 it has been stated inter alia in the return : ·\n\n\"Asregards the individual cases referred to in para 22 -of the writ petition the averments and submissions made therein are misconceived and . unwarranted and misleading\".\n\nOur attention has, however, not been invited to any facts or -particulars relating to the aforesaid instances in the return which would throw doubt on the correctness of the instances given in the petition in paras 20 and 22.\n\nAccording to the petitioners the present respondents 3 to 27 were not parties to the previous proceedings but they were Drol!'\n\nmoted tu the gazetted grade in an officiating capacity though they were junior to petitioner No. 1. Respondents 38 to 107 were parties to the previous petition and their promotions Were expressly quashed by this Court. Respondents 108 to 218 were promoted during the pendency of the writ petition and respondents 219 tu 251 were promoted after the decision of. this Court in an officiating capacity. It is abundantly clear and this position has not been controverted that all the promotions which were made of the !\"..Spondents who were not parties to the previous petition were based not purely on merit but were made on account of . the communal policy which had been struck down by this Court as unconstitutional.\n\nRespondents 3.8 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but they were still retained in the posts whiCh they were holding when they had been promoied to the gazetted grade although in some cases the nomenclature was changed from Head Master to TeacherinCharge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of dOubt that th.ere was absolute non-compliance with the provisions of that r..; Je. The promotions thus made of all the respondent teachers were illegal and unconstitutional being violative of Arti cle 16 of the Constitution. They have, therefore, to be set aside.\n\nAll the promotions made to the higher posts or the higher grade pursuant to the communal policy would have to oo revised amJ reconsidered and appropriate orders must be passed by respon dents l and 2 with regard to them as also the petitioners in accordance with law. The new rules stated to have bP.. name of Hindi Sahiya Sammelan, anif the word \"Sammelan'; was defined as referrmg to the Hindi Sahitya Sammelan constituted under the Act. Under that Act. Under that Act, the mana-·\n\ngement and properties of the original Hindi Sahitya Sammelan, A which was a registered Society, were to be taken over by the new statutory Sammelan.\n\nThat Act was, however, declared void by the Allahabad High Court on the ground that that Act had made the original Sammelan cease to exist and had provided for the constitution of a new Sammelan under its terms in which the members of the original Sammelan had no say,''so that that Act B infringed the right of the members of the criginal Sammelan of forming an association guaranteed by Art. 19 ( 1) ( c) of the Constitution. It was further held that that Act was not saved under Art. 19( 4) of the Constitution. Thereafter, the present Act, now challenged , in this writ petition and the appeal, was. passed by Parliament under Entry 63 of List I of the Seventh Schedule C to the Constitution. The Act itself, in section 2, contained the necessary declaration to give legislative competence to Parliament under that Entry.\n\nThe Act first contained in section 2 a declaration in the following words :-\n\n\"Whereas the objects of the institution known as the Hindi Sahitya Sammelan which has its head office at Allahabad are such as to make the instituaiion one of. national importance, it is hereby declared that the institution known as the Hindi Sahitya Sammelan is an institution of national importance.\"\n\nHaving declared this institution as an institution of national importance, the Act proceeded to define \"Sammelan\" as meaning the institution known as the Hindi Sahitya Sammelan incorporated under this Act, while the word \"Society\" was defined to mean \"the Hindi Sahitya Sammelan which has its head office at Allahabad and is registered under the Societies Registration Act, 1860.\" Under section 4 ( 1 ) of the Act, the Sammelan was constituted which was to consist of the first members of the Sammelan lljlld all persons who may hereafter become members thereof in accordance with the rules made in that behalf. This statutory Sammelan was\n\nconstituted as a body corporate by t.1ie name of the Hindi Sahitya Sammelan, and under sub-section (2) of section 4, it was to h_ave perpetual succession and a common seal with power, subject to the provision of the Act, to acquire, hold and dispose of property and to contract and to sue and be sued by that name.\n\nThe Head Office of the Sammelan was to be at Allahabad.\n\nUnder sub-s. ( 4) of section 4, the first members of the Sammelan were to consist of persons who, immediately before the appointed day.-\n\n(a) were special members (Vishisht Sadasya) of the Society;\n\n(b)(were life members (Sthayi , Sadasya) of the Society.\n\n( c) had been Presidents of the Society; or\n\n(d) were awarded the Mangla Prasad Paritoshik by the Society. ·\n\nThis sub-s. ( 4) of section 4 was amended retrospectively with effect from the date that the Act came into force by the Hindi\n\nSahitya Sammelan (Amendment) Act No. I of 1963, and the first members of the Sammelan were, under this amendment, declared to be- '\n\n(a) all persons who, immediately before the appointed day, were members of the Society;\n\n(b) all persons who, before that day, had been Presidents\n\nof the Society; and\n\n( c) all persons who, before that day, were awarded the Mangla Prasad Paritoshik by the Society.\n\nIt is not necessary to give in detail the other provisions of the Act, except that it may be mentioned that the Act provided for vesting of an proper1y, movable or immovable, or :belonging\n\nto the Society in the Sammelan, transferring all rights and Liabilities of the Society to the Sammelan, converting reference to the Society in any law to the Sammelan, and other similar necessary provisions. The Act itself did not make any provision for the future membership of the Sammelan; but, under section 12(1) (a), the first Governing Body of the Sammelan was directed to make rules in respect of matters relating to membership, including qualifications and disqualifications for membership of the Sammelan. The first Governing Body was to be constituted under section 8 and was to consist of a Chairman, a Secretary and 13 other members. This Governing Body was to be constituted by a\n\nnotifiction in the Official Gazette by the Central Government.\n\nThe thirteen members were to be chosen as follows :-\n\n(i) b one mem er to represent . the Ministry of the Central Government deahng with education;\n\n(ii) one member to represent the Ministry of the Central Government dealing with finance;\n\n(iii) not more th.an three members from among the former Presidents of the Society; and\n\n(iv) the remining nll!ll?er from among persons who are, 10 the op1mon of the Central Government, eminent in the field of Hindi language or Hindi literature.\n\nIt was this first Governing Body which was to make rules on all matters relating to membership of the Sammelan under section 12(1)(a) of the Act .. These rules were riot have effect until they were approved by the Central Government and were published by the first Governing Body in such manner as the Central Government may,. by order, direct. A copy of the rules was also to be laid before each House of Parliament.\n\nCounsel for respondent No. 1 placed before us a copy of the rules which, according to him, have been made by the first Governing Body with the approval of the Government and have been published as required. The Rules come into force pn 1st of February, 1971. The petition under Art. 32, and the petition under Art. 226, out of which the civil appeal arises, were both moved much earlier and long before these Rules were framed. These. petitions challenged the validity of the Act, without taking into account the actu~I Rules framed, mainly on the ground that he Act had interfered with the right of the p-etitioners to form association under Art. 19 (1 )( c) of the Constitution and was not protected by Art. 19 ( 4). In the petition before the Allahabad High Court, the Court held that, since all the members of the Society had also become members of the Sammelan under the Act, there was no infringement of the right to form association, so that the Act could not be declared invalid on that ground. The writ petition in this Court has been filed by only one member of the Society, while the petition in the High Court and the appeal against the judgment of the High Court, which is before us, were fhed by the original Hindi Sahitya Sammelan as one party and 72 members of that Sammelan joining as other petitioning parties.\n\nIn the civil appeal, thus,. the grievance that the Act has infringed the fundamental right has been put forward both by the Society itself as well as by 72 of its members, including members of the Working Committee and the Governing. Body of the Society.\n\nThey have all come up to this Court against the decision of the High Court in this appeal by special leave.\n\nIn the counter-affidavits filed on behalf of the respondents in the writ petition before the High Court as well as in the writ petition in this Court, the position taken up was that the Act, in fact, does not deprive the Society and its members of any rights which they had under the constitution of the Society and did not interfere with their right of association inasmuch as all the members of the Society have been included as members of the Sammelan under the Act. The High Court, in fact, dismissed the writ petition on accepting this submission put forward on behalf of the respondents. In the arguments before us, learned counsel for\n\n\"' B\n\nDAMYANTl NARANGA v. UNION (Bhargava, J.) 847\n\nrepondent No. 1, however, took up. a different position and urged that the Act keeps the Society in-tact as it was_, while a new Sainmelan is constituted under the Act for the piirpose of managing the institution which has been declared as an institution of national importance.\n\nHe put this aspect of the case in the forefront, but, in the alternative, he also argued the case on the basis of the position taken up in the counter-affidavits in the High Court and in this Court as mentioned above. We consider it convenient .to first deal with the case as was specifically put forward in the ceounter-affidavits.\n\nIn these counter-affidavits, the position taken up is that, having declared the old Hindi Sahitya Sammelan, which was a Society registered under the Societies Registration Act,\n\n1860, as an institution of national importance, Parliament has proceeded to legislate in respect of it under Entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going on inter-se between the members of the Society.\n\nIt was for this purpose that a first Governing Body was constituted to take over the management temporarily.\n\nThe Act was designed to reconstitute the Sammelan in such manner that it could work successfully and without difficulties and, in making provision for this purpose, all members of the old Society were included as members of the Sammelan, so that their right of forming association may not be taken away from them. The Society was never dissolved; instead of the Society remaining a body rej!istered under the Societies Registration Act, it was converted into a statutory Sammelan under the Act.\n\nIt, however, appears on examination of the provisions of the Act that the Sammelan under the Act is composed not only of persons, who were members. of the Society, but of others who have been given the right to be members of the Sammelan without the consent of the pre-existing members. Under sectio11 4( 4) itself, as retrospectively amended in 1963, apart from persons, who were members of the Society, others, who have been made members of the Sammelan, are all persons who, before that day had been Presidents of the Society and all persons who, before that\n\nday, were awarded the Mangla Prasad l!llritoshik by the Society. 1hese members have been added without any option bein\" available to the existing members of the Society to elect or refuse to eleet them as members which was the right they possessed under the constitution of the Society itself.\n\nFurther under section 12(1)(a-'), very wide powers were given to the' first Go\\-erning !3ody !o make.rule~ in respect. of mtters relating to membership, mcludmg qualifications and disqualifications for membership of the Sammelan. Under this power, the rules framed could make 10--Ll 100 Sup Cl 7l\n\nprovision for admission of persons as members whom the original members of the Society may never have liked to admit in their Society. , The number of such new members could even be so large as to leave the original members in a small minority with the result that those members could become totally ineffective in the Society. Even in the Rules actually framed, there is provision for admission of members under various classes. In addition to the persons mentioned in section 4 ( 4) of the Act, Rule 6 . pro• vides for membership of persons who may become Sabhapatis of the Sammelan for any annual session subsequent to the Act com ing into force, and persons who may be awarded Mangala Prasad Paritoshik subsequent to the Act coming into force. Under Rules 7, 8, and 9, new Vishisht Sadasyas, Sthayi Sadasyas, and Sadharan Sadasyas can be admitted to the membership of the Sammelan on payment of Rs. 1,000/ - or Rs. 300/:, as the case may be. This admission to membership, according to the Rules, will be made by the new Kdrya Samiti to be elected under the Rules and-not by the Working Committee of the original members . of the Association. Further, under section 7(2) of the Act, the Governing Body of the new Sammelan is to consist of such number of persons, not exceeding 55, as the Central Government may from time to time determine; and out of these, a number not exceeding 7 are to be nominated by the Central Government from among educationists of repute and eminent Hindi scholars. These 7 nominees are to be chosen by the Central Government and on becoming members of the Governing Body, under Rule 11 they become members of the Sammelan. Under Rule 10, educational institutions can also be admitted as Sanstha Sadasya~ of the Sammelan by the new Karya Samiti and, thereupon, a representative of each of such institution has a right to participate in the proceedings of the Sammelan, exercising all the rights of a member. It will, thus, be seen that the Sammelan, which has come into existence under the Act, is not identical with the Sammelan which was registered as a Society under the Societies Registration Act. 1860. Certain persons have been added as members by the Act and by the Rules. Admission of future members is no longer at the choice of the original members who had formed the Association.\n\nPersons, in whose admission as members the members of the Society had no hand, can become members and get the right of associating wiih them in the Sammelan, without the original members having any right to object. This is clear interference with the right to form an association which had been exercised by the members of the Society by forming the Society with its constitution, under which they were members and future members could only come in as a result of their choice by being elected by their WorkinJ! Committee. We are unable to agree with the High Court that the new Sammelan, as constituted under the Act,\n\nA is identical with the Society and that all the rights of formg an\n\nassociation, which were being exercised by members of the Society, have been kept in-tact under the Act.\n\nIt was argued that the right guaranteed by Article 19 ( 1) c) is only to form an association and, consequently, any reglat10n\n\nof the affairs of the Association, after it has been formed, will not amount to a breach of that right. It is true that it has been held by thi~ Court that, after an Association has been formed and the right under Art. 19 ( 1 )( c) has been exercised by the members. forming it, they have no right to claim that its activities must also be prmitted to be carried on in the manner they desire. Those cases are, however, inapplicable to the present case. The Act does not merely regulate the administration of the affairs of the Society, what it does is to alter the composition of the Society itself as we have indicated . above. The result of this change in\" composition is that the memhers, who voluntarily formed the: Association, are now compelled to act in that Association with: other members who have been imposed as members by the Act: and in whose admission to membership they had no say. Such alteration in the composiiion of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by thci original founders. The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to coniinue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.\n\nIf we were to accept the submission that the right guaranteed by Art. 19 ( 1) ( c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership either chosen by the founders or regulated\n\ny rules made by the Association itself, the right would be meanmgless because, as soon as an Association is formed a law may be passed interfering with its composition, so that th; Association formed may not be able to function at all. The right can be eff.ective O!li}'. if !t !s hld to inclu~7 within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association. This aspect was recognised by this Court though not in plai? words, in the case of O. K. Ghosh and :4n£?ther v. E .• ~· Joseph( ). The Court, in that case, was cons1dermg the val1d1ty of Rule 4 (B) of the Central Civil Services (Conduct) Rules, 1955, which laid down that:\n\n(l} [1963] Supp 3 S.C.R. 789.\n\n\"No Government servant shall join or continue to be a member of any Servioo Association of Government servants :\n\n(a) which has not, within a period of six months froin its formation, obtained the recognition of the Government under the Rules prescribed in that behalf; or\n\n( b) recognition in respect of which has been refused or withdrawn by the Govemmnt under the said Rules.\" ·\n\nThis Court held :-\n\n\"It is not disputed that the fundamental rights guaranteed by Art. 19 can be claimed by Government servants.\n\nArt. 33 which comers power on the Parliament to modify the rights in their application to the Am1ed Forces, clearly brings out the fact that all citizens, including Government servants, are entitled to claim the rights guaranteed by Art. 19. 'Thus, the validity of the impugned rule has to be judged on the basis that the respondent and his co-e.nployees are entitled to fonn Associations or Unions. It is clear that Rule 4-B imposes a restriction on this right.\n\nIt virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said Asso:\n\nciation is withdrawn or if, after the Association is fanned, no recognition is accorded to it within six ; nonths. In other words, the right to form an Association is conditioned by the existence of the recognition of the said Association by the Governni.ent. If the Association obtains the recognition and continues to enjoy it, Government servants can become members of the said Association; if the Association does not secure recognition from the Government or recognition granted to it is withdrawn, Government servants must cease to be the members of the said Association.\n\nThat is the plain effect of the impugned rule.\"\n\nThe Court in the above passage, thus, accepted the principle that the Government servants, who may have formed an AssociatiQ!l. could not be compelled to resign from it by imposition of a condition of recognition of this Association by the Government and that if the Government servants are required to cease to be members that would be a violation of the right under Art. 19 (l) ( c).\n\nirhe Court, of course, in that case, further proceeded lo examine\n\nwhether such a restriction on' the right could be justified under\n\nE -\n\n¥· 19 ( 4) or not. That case, thus, supports oitr view that the nght to form an Association includes the right to its continuance\n\nan~ any. law altering the composition of the Association compulsorily will be a breach of the right to form the Association.\n\nThis Court had also proceeded on the same basis in the case of State of Madras v. V. G. Row(1). Though this as.Peet was not clearly brought out in the judgment, the pomt, which came up for consideration, was decided on the basis that persons forming an Association had a right under Art. 19 ( 1 )( c) to. see that the composition of the Association continues as voluntarily agreed to by them. That decision was given illl an appeal from a judgment of the High Court of Madras reported-1.n V. G. Row v. The State of Madras( 2). In the \"High Court, this principle was clearly for• mulated by Rajamannar, C.J., in the following words :-\n\n\"The word \"form\" therefore, must refer not only to the initial commencement of the association, but also to the continuance of the association as such.\"\n\nThe Act, insofar as it interferes with the composition of the Society in constituting the Sanimelan, therefore, violates the right of the original members of the Society to form an a8sociation guaranteed under Art. 19(1) (c).\n\nArticle 19 ( 4), on the face of it, cannot be called in aid t<> claim validity for the Act.\n\nUnder Art. 19 ( 4), reasonable restrictions can be imposed only in the interests of the sovereignty\n\nand integrity of India, or in the interests of public order or morality.\n\nIt has not been contended on behalf of the respondent, nor could it be contended that this alteration of the constitution of the Society in the manner laid down by the Acl was in the interests of the sovereignty and iniegrity of India, or in the interests of public order or morality.\n\nNot being protected under Art. 19 ( 4), ii must be held that the provision contained in the Act for reconstituting the Society into the Sammelan is void. Once that section is declared void, the whole Act becomes ineffective inasmuch as the formation of the new Sammelan is the very basis for all the other provisions contained in the Act.\n\nIn view of this position emerging in the course of arguments, Mr. B. Sen put forward an entirely different and alternative case before us which we have mentioned earlier.\n\nThe p05ition he took up was that the Act nowhere specifically lays. down that the Society shall stand dissolved, while it does constitute a new Sammelan. According to him, therefore, it should\n\n(1) [1952] S.C.R. 597.\n\n(2) A.I.R.1951 Mad.147.\n\nbe inferred that, while the Society still continues to exist in its original form, the law has brought into existence a new Sanunelan to which all the functions, properties, etc. of the Society have passed under the Act.\n\nThere are three reasons why this 1lternative submission cannot be accepted as ensuring the validity .of the Act.\n\nThe first is that the specific case taken by the respondents has been that the Act recol\\stitutes the Society and does not create a separate and indepedent body in the form .of a new Sarnmelan. Secondly, even if it be accepted that a new Sammelan bas been constituted by the Act, the question will arise of the legislative competence of Parliament to pass such a law.\n\nConstitution of Societies is under List II of the Seventh Schedule.\n\nParliament purportei.: to exercise legislative power under Entry 63 of List I on the basis of a declaration that the.\n\nHindi Sahity;1 Sammelan, AJlahabad was an institution of national importance.\n\nThe institution that was declared was the Society itself.\n\nIt was not a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance There can, of course, be cases where a Society may be running. a college, a school or some other like institution, in which case Parliament may declare that particular institution as of national importance. without declaring the Society as such In the present case, what section 2 of the Act did was to declare the Society itself as an institution of national importance and, consequently, Parliament became competent to legislate in respect of the Society. On the interpretation now sought to be put forward, the Act keeps that Society in-tact, but deprives it of all i'ts functions and properties and transfers them to a newly constituted body, viz .. the Sammelan, as defined under the Ac't.\n\nThis Sammelan is itself a body corporate, and that Sammelan has never been declared as an institution of national importance.\n\nThe only institutaion that was declared as of national importance w11s the Society which, of course, earlier, carried the same name as the new Sammelan.\n\nParliament was, therefore, not competent to legislate in respect of this newly .constituted Sammelan which, at no stage, had been declared as an institution of national importance.\n\nThe third reason why this submission must be rejected is that, if we were to bold that Parliament pased this Act so as to transfer all the properties and assets of. the Society to the Sammelan, the Act would contravene Art. 19(1)(f) of the Constitution.\n\nOn this interpretation, what the Act purporis to do is to take away all the properties of the Society, leaving the Society\n\nas an existing body, and give them to the new Sammelan. Thh Sammelan is a new, separate and distinct legal entity from the Society.\n\nThe Society is, thus, deprived of all itS properties by the Act.\n\nSuch a law depriving the Society of its properties al-\n\nA .\n\ntogether cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property.\n\nThe property, under section 5 of the Societies Registration Act, 1860, vested in the Governing Body of the Society. The members of the Governing Body, therefore had the right to hold the property under Art. 19(1)(f) and they having been deprived of that property have rightly approached the Courts for redress of their grievance ..\n\nIn this connection counsel for the respondents relied on decision , of this Court in The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. The State of Delhi and Another(1), where the Board of Trustees of the Ayurvedic and Unani Tibbia College, Delhi was dissolved by the Tibbia College Act, 1952, and the property, which had vested in the Board of Trustees, passed to the newly constituted Board under the impugned Act.\n\nThe Court held that there was no violation of the fundamental rights .guaranteed by Art. 19(l)(f) or Art. 31 That decision, however, proceed->..rcise of power-Acquisition for Company-Stale contributing towards cost-Proceedings need not be taken under ss. 38 to 44B-Sect&ary to take immediate steps to acquire the land. The High Court uismissed the petition.\n\nIn the appeal to this Court it was contended that (i) the acquisition in question being one for the benefit of a Company, proceedings should have been taken under ss. 38 to 44B of the Act, and that there was no public purpose involved in the case;\n\n(ii) there w\"' no urgency and hence recourse could not be had to section 17 of the Act; and (iii) s. 17(2)(c) was inapplicable to the facts of the case, because, though s. 17 ( 2)( c) read by itself covered a very large field, l!Jlplying the ejusdem generis Rule that provision had to be given a narrower meaning because of the provisions of s. 17(2) (a) and (b).\n\nDismissing the appeal,\n\nHELD : (i) On the facts of the case the purpose for which land was acquired was a public purpose. The question whether the starting of an industry is in public interest or not is essentially a question that has to. be decided by the Government. So long as it is not established that the acquisition is sought to be made for some collateral purpose or that there is a colourable exercise of poww the declaration of the government that it is made for a public purpose is not open to challenge, [874 E-G]\n\n.smr. Somavantl and Ors. v. State of Pun/ab, (1963] 2 S.C.R. 774 and Raia Anand Brahma Shah v. State of U.P., [1967) 1 S.C.R. 373, referred to.\n\nIn view of te: fact .that the State Government had contributed towsrds the cost of acqu1S11ton ti was not necessary to proceed wlth the acquisition under Part VII of the Act, [875 A]\n\n(ii) On the facts of the case there was urgency. The conclusion of the Government in a given case that there was urgency is entitled to. , weight, if not conclusive. 1\n\n(iii) , In_Jnterpreting cl. (c) of s. 17(2) the rule of ejusdem generis cannot be applied. If a given provision is plain and unambiguous and the legislative intent is clear, there is no occasion to call into _aid that rule.\n\nUnder els. (a), (b) and (c) of sub-s. (2) of s. 17 the decision to acquire land has not to be made by the same authority but by different authorities.\n\nFurther, the conditions under whlch the acquisition has to be made differ from clause to clause. Therefore, there is no basis to say that the general words in cl. (c) follow the particular and specific words in els. (b) and\n\nI c). [877 E; 879 H]\n\nState o/ Bomba.v v. Ali Gulshan, [1952] S.C.R. 867, Lilavati Bal v.\n\nSMe of Bombay, [1957] S.C.R. 721, K. K. Kochuni v. State of Madras, A.I.R. i 960 S.C. 1050, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2034 of 1969.\n\nAppeal from the judgment and order dated May 7, 1969 of '..lie Punjab and Haryana High Court in Civil Writ No. 850 of 1969.\n\nK. L. Gosain, N. N. Goswamy, S. K. Mehta, K. L. Mehta and K. R; Nagaraja, for the appellant.\n\nHarbans Singh and R. N. Sachthey, for respondeints Nos, 1 and 2.\n\nS. V. Gupte and S. K. Gambhir, for respondent No. 18.\n\nThe Judgment of the Court was delivered by E\n\nHegde, J.\n\nThis appeal by certificate arises from the decision of a Division Beµch of the Punjab and Haryana High Court in a writ petition wherein the appellants challenged the validity of proceedings under ss. 4, 6, 9 and 17 (2) ( c) of the Land Acquisition Act, 1894 as amended by the Punjab Legislature.\n\nFor convenience sake we shall refer to that amended Act as 'the Act'. The High Court dismissed the writ petition.\n\nIt appears that severnl ccntentions were sought to be advanced before the High Court but in this Court only three contentions have been pressed for onr consideration i.e. ( 1) the G acquisition in question being one for a company procewings should have been taken under ss. 3fs to 44(B) of the Act, the same..ilaving not been taken, the proceedings taken are void; , (2) fi)t)(e was no urgency and hence recourse should not have been had to s. 17 of the Act and (3) Section 17(2)(c) is inapplicable to fhe 1 facts of the case.\n\nNow we may state the facts _relevant for the purpose of deciding the ques'tions in dispute.\n\n.,,.,/\n\nOn 14/17 March, 1969, Government of Haryana issued a notification under s. 4 of the Act notifying for acquisition the land concerned in this case.\n\nThe notification further directed that action under s. 17(2)(c) of the Act shall be taken on the ground of urgency and the provisions of s. 5-A shall not appy in regard to the said acq1.1isition.\n\nThe preamable to the said notification says that \"whereas it appears to the Governor of Haryana that land is likely to be required to be taken by Government, at public expenses, for a public purpose, namely for the setting up a factory for the manufacture of Chine-ware and Procelain-ware including Wall Glazed Tiles etc. at village Kasser, Tehsil Jhajjar, District Rohtak, it is hereby notified that the land in the locality described in the specification below is likely to iJe required for the above purpose''. On March 18, 1969 the GovernmeD't isued a notification under s. 6 of the Act acquiring the land for a public purpose.\n\nOn March 28, 1969 notices under s. 9 of the Act were served on the appellants. On April 8, 1969, the appellants filed the writ petition giving rise to this appeal.\n\nThe allegations in the writ petition include the assertion that there was no urgency in the matter of acquiring the land in question and therefore there was no justification for having recourse to s. 17 and thus deprive the appellants of the benefit of s. 5-A of the Act. It was further alleged therein that the acquisition in, question was made for the benefit of a company and hence proceedings should have been taken under ss. 38 to 44(B) of the Act and that there was no public purpose involved in the case. It was further pleaded that the land acquired was not waste and arable land and that s. 2 ( c) of the Act did not\n\nonfer power on the Government to dispense with the proceedms under s. 5-A. In the counter-affidavit filed by the Deputy Director of Industries (Administration), Government of Haryana on bealf of the , Stte. of Haryana, the above allgations were all demed.\n\nTherem it 1s stated that at the instance of the State of Haryana, Government of India had issued a letter of intent to a comany for .settig up a factory for the manufacture of Glazed T.tles etc. m villag~ Kasser.\n\nThat project was to be\n\nst.ared with . the collaboration of a foreign company known as Pilkington. Tiles Ltd. The scheme for setting up the project had been finalised and approved by the concerned authorities.\n\nOn November 26, 1968, the Government wrote to one of the pro rooters of .. the project, Shri H. L. Somany asking him to complete. h.e arrangem:nts for the import of capital equipment and acqms1tion of land ID Haryana Srate for setting up of the pro- sed factory\"· It was further stated in that communication e Goemment was . pleased to extend the time for compleing the pro1ect upto April 30, 1969. Under those circumstances it\n\nhad become necessary for the State of Haryana to take immediate steps to acquire the required land.\n\nIt was under those circumstances the Government was constrained to have recourse to s. 17 of the Act. The Government denied the allegation that the facts of this case did not come within the scope of s. 17 (2) ( c). It was also denied that the acquisition in question was not made for a public purpose.\n\nWe have earlier seen that in the notification issued under s. 4, it had been stated that the acquisition was made \"at public expenses, for a public purpose\" namely for the setting up a factory for the manufacture of China-ware and Porcelain-ware\n\nincl u&ary to take immediate steps to acquire the land."}}, {"text": "April 30, 1969", "label": "DATE", "start_char": 1449, "end_char": 1463, "source": "ner", "metadata": {"in_sentence": "The state government pleaded that since the Government of India had extended the time for completion of the project till April 30, 1969, it had become nece>&ary to take immediate steps to acquire the land."}}, {"text": "ss. 38 to 44B", "label": "PROVISION", "start_char": 1737, "end_char": 1750, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 1888, "end_char": 1898, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)(c)", "label": "PROVISION", "start_char": 1921, "end_char": 1932, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 1992, "end_char": 1997, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 2165, "end_char": 2173, "source": "regex", "metadata": {"statute": null}}, {"text": "(1963] 2 S.C.R. 774", "label": "CASE_CITATION", "start_char": 2760, "end_char": 2779, "source": "regex", "metadata": {}}, {"text": "[1967) 1 S.C.R. 373", "label": "CASE_CITATION", "start_char": 2825, "end_char": 2844, "source": "regex", "metadata": {}}, {"text": "Part VII of the Act", "label": "STATUTE", "start_char": 3014, "end_char": 3033, "source": "regex", "metadata": {}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 3248, "end_char": 3256, "source": "regex", "metadata": {"linked_statute_text": "Part VII of the Act", "statute": "Part VII of the Act"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 3483, "end_char": 3488, "source": "regex", "metadata": {"linked_statute_text": "Part VII of the Act", "statute": "Part VII of the Act"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4012, "end_char": 4040, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "K. L. Gosain", "label": "LAWYER", "start_char": 4200, "end_char": 4212, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain, N. N. Goswamy, S. K. Mehta, K. L. Mehta and K. R; Nagaraja, for the appellant."}}, {"text": "N. N. Goswamy", "label": "LAWYER", "start_char": 4214, "end_char": 4227, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain, N. N. Goswamy, S. K. Mehta, K. L. Mehta and K. R; Nagaraja, for the appellant."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 4229, "end_char": 4240, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain, N. N. Goswamy, S. K. Mehta, K. L. Mehta and K. R; Nagaraja, for the appellant."}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 4242, "end_char": 4253, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain, N. N. Goswamy, S. K. Mehta, K. L. Mehta and K. R; Nagaraja, for the appellant."}}, {"text": "K. R; Nagaraja", "label": "LAWYER", "start_char": 4258, "end_char": 4272, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain, N. N. Goswamy, S. K. Mehta, K. L. Mehta and K. R; Nagaraja, for the appellant."}}, {"text": "Harbans Singh", "label": "LAWYER", "start_char": 4294, "end_char": 4307, "source": "ner", "metadata": {"in_sentence": "Harbans Singh and R. N. Sachthey, for respondeints Nos, 1 and 2."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4312, "end_char": 4326, "source": "ner", "metadata": {"in_sentence": "Harbans Singh and R. N. Sachthey, for respondeints Nos, 1 and 2."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 4360, "end_char": 4371, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and S. K. Gambhir, for respondent No."}}, {"text": "S. K. Gambhir", "label": "LAWYER", "start_char": 4376, "end_char": 4389, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and S. K. Gambhir, for respondent No."}}, {"text": "E\n\nHegde", "label": "JUDGE", "start_char": 4458, "end_char": 4466, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by E\n\nHegde, J.\n\nThis appeal by certificate arises from the decision of a Division Beµch of the Punjab and Haryana High Court in a writ petition wherein the appellants challenged the validity of proceedings under ss."}}, {"text": "ss. 4, 6, 9 and 17", "label": "PROVISION", "start_char": 4668, "end_char": 4686, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 4703, "end_char": 4729, "source": "regex", "metadata": {}}, {"text": "ss. 3", "label": "PROVISION", "start_char": 5154, "end_char": 5159, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 5325, "end_char": 5330, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Section 17(2)(c)", "label": "PROVISION", "start_char": 5350, "end_char": 5366, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "14/17 March, 1969", "label": "DATE", "start_char": 5516, "end_char": 5533, "source": "ner", "metadata": {"in_sentence": "On 14/17 March, 1969, Government of Haryana issued a notification under s. 4 of the Act notifying for acquisition the land concerned in this case."}}, {"text": "Government of Haryana", "label": "ORG", "start_char": 5535, "end_char": 5556, "source": "ner", "metadata": {"in_sentence": "On 14/17 March, 1969, Government of Haryana issued a notification under s. 4 of the Act notifying for acquisition the land concerned in this case."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 5585, "end_char": 5589, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "s. 17(2)(c)", "label": "PROVISION", "start_char": 5713, "end_char": 5724, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 5798, "end_char": 5802, "source": "regex", "metadata": {"statute": null}}, {"text": "Haryana", "label": "GPE", "start_char": 5946, "end_char": 5953, "source": "ner", "metadata": {"in_sentence": "The preamable to the said notification says that \"whereas it appears to the Governor of Haryana that land is likely to be required to be taken by Government, at public expenses, for a public purpose, namely for the setting up a factory for the manufacture of Chine-ware and Procelain-ware including Wall Glazed Tiles etc."}}, {"text": "Kasser", "label": "GPE", "start_char": 6191, "end_char": 6197, "source": "ner", "metadata": {"in_sentence": "at village Kasser, Tehsil Jhajjar, District Rohtak, it is hereby notified that the land in the locality described in the specification below is likely to iJe required for the above purpose''."}}, {"text": "Jhajjar", "label": "GPE", "start_char": 6206, "end_char": 6213, "source": "ner", "metadata": {"in_sentence": "at village Kasser, Tehsil Jhajjar, District Rohtak, it is hereby notified that the land in the locality described in the specification below is likely to iJe required for the above purpose''."}}, {"text": "Rohtak", "label": "GPE", "start_char": 6224, "end_char": 6230, "source": "ner", "metadata": {"in_sentence": "at village Kasser, Tehsil Jhajjar, District Rohtak, it is hereby notified that the land in the locality described in the specification below is likely to iJe required for the above purpose''."}}, {"text": "March 18, 1969", "label": "DATE", "start_char": 6375, "end_char": 6389, "source": "ner", "metadata": {"in_sentence": "On March 18, 1969 the GovernmeD't isued a notification under s. 6 of the Act acquiring the land for a public purpose."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6433, "end_char": 6437, "source": "regex", "metadata": {"statute": null}}, {"text": "March 28, 1969", "label": "DATE", "start_char": 6494, "end_char": 6508, "source": "ner", "metadata": {"in_sentence": "On March 28, 1969 notices under s. 9 of the Act were served on the appellants."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 6523, "end_char": 6527, "source": "regex", "metadata": {"statute": null}}, {"text": "April 8, 1969", "label": "DATE", "start_char": 6573, "end_char": 6586, "source": "ner", "metadata": {"in_sentence": "On April 8, 1969, the appellants filed the writ petition giving rise to this appeal."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 6853, "end_char": 6858, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 6909, "end_char": 6913, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 38 to 44(B)", "label": "PROVISION", "start_char": 7082, "end_char": 7097, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 7253, "end_char": 7257, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 7350, "end_char": 7354, "source": "regex", "metadata": {"statute": null}}, {"text": "Pilkington. Tiles Ltd.", "label": "ORG", "start_char": 7841, "end_char": 7863, "source": "ner", "metadata": {"in_sentence": "the collaboration of a foreign company known as Pilkington."}}, {"text": "November 26, 1968", "label": "DATE", "start_char": 7968, "end_char": 7985, "source": "ner", "metadata": {"in_sentence": "On November 26, 1968, the Government wrote to one of the pro rooters of .. the project, Shri H. L. Somany asking him to complete."}}, {"text": "H. L. Somany", "label": "OTHER_PERSON", "start_char": 8058, "end_char": 8070, "source": "ner", "metadata": {"in_sentence": "On November 26, 1968, the Government wrote to one of the pro rooters of .. the project, Shri H. L. Somany asking him to complete."}}, {"text": "State of Haryana", "label": "ORG", "start_char": 8423, "end_char": 8439, "source": "ner", "metadata": {"in_sentence": "Under those circumstances it\n\nhad become necessary for the State of Haryana to take immediate steps to acquire the required land."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 8579, "end_char": 8584, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 8695, "end_char": 8700, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8858, "end_char": 8862, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 10154, "end_char": 10163, "source": "regex", "metadata": {"statute": null}}, {"text": "[1963] 2 S.C.R. 774", "label": "CASE_CITATION", "start_char": 11063, "end_char": 11082, "source": "regex", "metadata": {}}, {"text": "Part VII of the Act", "label": "STATUTE", "start_char": 11333, "end_char": 11352, "source": "regex", "metadata": {}}, {"text": "Somavantz", "label": "OTHER_PERSON", "start_char": 11357, "end_char": 11366, "source": "ner", "metadata": {"in_sentence": "h the acquisition under Part VII of the Act-see Somavantz s case(')."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 12056, "end_char": 12061, "source": "regex", "metadata": {"linked_statute_text": "Part VII of the Act", "statute": "Part VII of the Act"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 12359, "end_char": 12364, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 12417, "end_char": 12422, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 12461, "end_char": 12465, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 12576, "end_char": 12581, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 12592, "end_char": 12602, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 12973, "end_char": 12982, "source": "regex", "metadata": {"statute": null}}, {"text": "Co-operative Societies Act, 1912", "label": "STATUTE", "start_char": 14017, "end_char": 14049, "source": "regex", "metadata": {}}, {"text": "section 5", "label": "PROVISION", "start_char": 15473, "end_char": 15482, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)(c)", "label": "PROVISION", "start_char": 15556, "end_char": 15567, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 15584, "end_char": 15589, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 15615, "end_char": 15625, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 15743, "end_char": 15752, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 15941, "end_char": 15946, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 16232, "end_char": 16237, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 16306, "end_char": 16314, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 16440, "end_char": 16448, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)(a)", "label": "PROVISION", "start_char": 16575, "end_char": 16586, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 16687, "end_char": 16692, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 20508, "end_char": 20513, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)(a)", "label": "PROVISION", "start_char": 20554, "end_char": 20565, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 20594, "end_char": 20602, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 21309, "end_char": 21314, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 21527, "end_char": 21535, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 22533, "end_char": 22538, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 23113, "end_char": 23121, "source": "regex", "metadata": {"statute": null}}, {"text": "K.B.N.", "label": "PETITIONER", "start_char": 23343, "end_char": 23349, "source": "ner", "metadata": {"in_sentence": "K.B.N.\n\nAppeal dismissed."}}]} {"document_id": "1971_3_881_896_EN", "year": 1971, "text": "s:'K,. ~SHYAP & ANR.\n\nTHE STATE OF RAJASTHAN\n\nMarch 2, 1971\n\n[C. A. VAJDIAL!NGAM AND A. N. RAY, JJ.J\n\nArmy Act, 1878 (1 of 1878)-Sections 125 and 12&-Code of Criminal Procedure, 1898 (5 of 1898) Section 549-Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952-Jurisdiction of Special Judge-Ru/es 4, 5, 8 and 9-Scope of Rules.\n\nCriminal Law Amendment (Amendingi Act, 1966----Section 5(1)(a)(b)-\"Pending\", \"Charged with a11d tried for an offence\", meaning of.\n\nOn January 27, 1966, a charge sheet against the four appellants and four civilians was put up before the special judge. On January 12, 1967 the Special Judge gave notice to the commanding officer notifying under rule 4 of the Criminal Courts and Courts Martial (Adjustment of Juris-·\n\ndiction) Rules, 1952, framed under s. 549 of the Code of Crirr.inal Pro• cedurc, that charges would be framed against the accused.\n\nOn January 16, 1967, the Officer Commanding wrote to the Special Judge, in exercise of the powers conferred on him hlle 5 of the 1952 Rules, that the four appellants belonging to his unit would be tried by Court Martial under the Army Act, 1950, and \\he Court of the Special Judge was requested to stay the proceedings with immediate effect. On January 17, 1967, the State of Rajasthan made an application before the Special Judge stating that the period of limitation fclr the purpose of Court Martial had already expired and tilat the Special Judge take cognisance of the case on the basis of sanction by the Central Government. The Special Judite requested the Commanding Officer to make a reference to the Central Government.\n\nOn January 28, 1967, the Commanding Officer wrote to the Special Judge that the notice dated January 16, 1967, unde'r Rule 5, served on the Special Judge might be treated as cancelled.\n\nThereupon the appellants made an application before the Special Judge challenging the legality of the action of the Commanding Officer in cancelling the notice dated January 16, 1967 and praying that they be delivered to the Army authorities.\n\nThe Special Judge held that since the notice dated January 16, 1967 had been cancelled, he had jurisdiction to try the case. A revision against this order was dismissed and the High Court directed the Special J ud2e to conduct the trial.\n\nIn the appeal to this Court it was contended that the High Court was wrong, because, the Special Judge had DD jurisdiction to deal with the application of the State made on January 17, 1967 and pass an order that the Commanding Officer should make a reference to the Central Government; and that the Commanding Officer had no power to caacel the intimation dated January 16, 1967. The respondent contended !bat the effect of the cancellation of the notice dated January 16, 1967,. was that no Court Martial proceeding was to be commenced and that in any event the Special Judge had jurisdiction and authority to try and dispose\n\nof the case which was pending on June 30, 1966 in the Criminal Court by virtue of the provisions contained in the Criminal Law. Amendment (Amending) Act, 1966.\n\nDismissiag the appeal,\n\n-!'\n\nHELD : The provisions of the Army Act, the Rules under Section 549 of the Criminal Procedure Code and the decisions of this Court all support\n\nthe c, onclusion that the Special Judge in the present case was justified i11 asking the Officer Con1ma-nding to make a reference .to the Central Go,·- 1..Tnmcnt and that the Officer Commandjng in the -facts and circumstances of the case expressed the opinion that the appellants should be tried bv\n\ncriminal cot1rts because there would in fact he no Court Martial proceedings.\n\nThe contention that the Officer Comn1an in the criminal court which under the Army Act is described a> \" civil court as opposed to court-martial under the Army Acts.\n\nThe Special Judge rejected that application on 10 October, 1966 ; md ordered that the case would be put up for further proceedings ,; n 16 January, 1967. A revision application was thereafter moved in the Rajasthan High Court. The High Court of Rajasthan by \"rder and judgment dated 20 Decemper, 1966 said that the Special\n\n.T udge would proceed in accordance with the provisions of Rule~\n\n3 and 4 of the Rules framed under section 549 of the Code of Criminal Procedure.\n\nIn compliance with the aforesaid order of the High Court, the Special Judge on 12 January, 1967 gave notice to the Commanding Officer, 123 Infantry Battalion (T.A.), Jaipur notifying under Rule 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 that the appellants along with three civilians were charged with the offences as indicated above and\n\nchargs would be \"frf\\llled against the accused after the expiry of\n\na penod of seven days from the date of the service of the notice\".\n\nOn 16 January, 1967 the Officer Commanding wrote to the Special\n\n.T udge for Rajasthan that in exercise of the powers conferred upon him by Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 the Officer Commanding i:ave\n\nnotice that the four Officers meaning thereby the appellants belonged to his Unit and that the appellants would be tried by Court Martial under the Army Act, 1950 for the offences alleged to have\n\nbeen committed by them as set out in the notice of the Special Judge and that the Court of the Special Judge was requested.Jo stay the proceedings against the four appellants with immediate effect.\n\nThe Jetter concluded by stating that the four appe!Jants might be delivered immediately to Major R. N. Kesar who was carrying the notice to be handed over to the Court by hand.\n\nOn 17 January, 1967 the State of Rajasthan made an application before the Special Judge that under section 122 of the Army Act, 1950 a period of three years was provided after which no Court Martial proceedings could be commenced against the Army Officers and the period of limitation was to be computed from the date of such offence. The charges of conspiracy and corruption against the appellants were alleged to have been committed in the month of December, 1962 and the end of the year 1963 and as such, according to the State of Rajasthan, the limitation for the purpose of Court Martial expired with the close of the year 1966.\n\nThe State of Rajasthan submitted that the Special Judge took cognizance of the case on the basis of sanction granted by the Central Government and there were two orders one from the highest authority of the Government, namely, the President of India sanctioning the prosecution of the appellants by a competent criminal_court and the other by an Officer Commanding for holding a CourtJAartihl and therefore the matter might be referred to the Central Government for clarification. The Special Judge on 17 January. 1967 held that along with the appellants three civilians were charged with the commission of offence and they could not be tried by Court Martial. The Special Judge requested the Commanding Officer to make a reference to the Central Government within seven days failing which the Special Judge would make a reference to the Central Government. The Special Judge did not deliver the four appellants to the Commanding Officer.\n\nOn 28 January, 1967 the Officer Commanding, 123 Infantry Battalion (T.A.), Jaipur wrote to the Special Judge that the notice under Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 served by the Officer on the Special Judge by Jetter dated 16 January, 1967 might be treated as cancelled.\n\nOn 21 March, 1968 the appe!Jants made e.n application before the Additional Special Judge, Jaipur that the Commanding Officer acted illegally and without jurisdiction in cancelling the earlier notice dated 16 January, 1967 and the Commanding Officer should have made a reference to the Chief of the Army Staff. The appellants prayed that they might be handed over to the ommanding\n\nOfficer in terms of the letter dated 17 January, 1967 issued by the Commanding Officer asking the Special Judge to deliver the !1J>pel lants to the Army authorities. On 5 April, 1968 the Additional\n\nSpecial Judge held that the Officer Commanding revised his discretion and intimated by letter dated 28 January, 1967 that the earlier notice dated 16 January, 1967 issued.under Rule 5 requiring delivery of the appellants to the Army authorities for trial by Court Martial was cancel!ed and therefore the Special Judge would try the case and not deliver the appellants to the army authorities.\n\nThe appellants thereafter made an application to the High Court of Rajasthan under secticm 435 read with section 561-A of the Code of Criminal Procedure for quashing the proceedings before the Additional Special Judge and for directing the Special Judge to hand over the appellants to be tried by Court Martial.\n\nThe High Court by order dated 9 September, 1968 dismissed the revision application and directed the Special Judge, Rajasthan to conduct the trial expeditiously, because sufficient time had elapsed 'ince the submission of the charge-sheet by the Special Police Establishment Branch, Jaipur.\n\nCounsel on behalf of the appellants contended that the order of the High Court was wrong for 3 reasons : First, that the Special Judge having issued a notice on 12 January, 1967 under Rule 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 to the Officer Commanding and having received a reply dated 16 January, 1967 from the Officer, the Speeial\n\nJudge had no jurisdiction to deal with an application of the State made on 17 January, 1967 and pass an order on 17 January, 1967 on the stay application that the Commanding Officer should make\n\na reference to the Central GOvernment. The second contention was that the Commanding Officer had no power to cancel the intimation dated 16 January, 1967 by the subsequent letter dated .28 January, 1967. Thirdly, it was said that the sanction for prosecution accorded by the Central Governmellt had no relevence to section 549 of the Code of Criminal Procedure read with the Rules.\n\nCounsel on behalf of the respondent on the other hand , contended that the Officer Commanding by letter dated 28th January, 1967 cancelled the earlier notice dated 16th January, 1967 with the result that no Court Martial proceeding was to be' commened against the appellants.\n\nIt was said on behalf of the respondent that the competent military authority had power and jurisdiction to cancel the letter dated 16th January,\n\nl 967.\n\nSecondly, it was said that the Special Judge had jurisdiction and authority to try and dispose of the case which was pending on 30th June, 1966 in the criminal court by virtue .of the provisions contained in the Criminal Law Amendment r( Amending) Act, 1966.\n\nThe third contention was that the Special Judge was justified in making an order on 17th January, 1967 requesting the competent military authority fo make a reference to the Central Government failing which the Special Judge 1would _make a referenq: _to .the Central Government.\n\nssn SUPREMEcoURT REPORTS [l 97 J ]3 S.C.R\n\nIn order to appreciate the rival contentions reference has to k made to sections 125 and 1.26 of the Army Act and Rules 3 to 9 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 made by the Central Government . in exercise of the powers under section 549 of the Code of Criminal Procedure.\n\nSections 125 and 126 of the Am1y Act are framed for the purpose of ensuring that there is no conflict between the criminal court and the Court MartiaL Section 125 confers discretion on .. ' the Officer Comnianding of the army corps, division' or brigade in which the accused is serving to decide before which~ court the proceedings shall be instituted in respect of an offence alleged to be committed by the accused:····. If the decision will_ be for institution .of proceedings bdore the Cour\\ Martial direction .is\n\ngiven for detention of the accused in military custody.\n\nSection '126 provides that where a criminal court having jurisdiction i> of opinion that proceedings shall be instituted before it in respect of any iilleged offence, the criminal court, may require the Officer Commanding mentioned in section 125 of the Army Act either to deliver the offender to the Magistrate or to postpone proceedings pending a rderence to the Central Government.\n\nSection 126(2) of the Army Act provides that th.~ Officer Commanding shall either deliver the offender to the Magistrate or shall . refer the question to the Central Government whose .order upon such refereno:: shall be final.\n\nThese two sections of the Army Act do not leave any room for doubt that if after commencement of Court Martial proceedings the ordinary criminal court intends to proceed against an accused who is subject to\n\n. '.\n\nthe control of the Army Act, the criminal court will have to adopt either of the two courses mentioned The order cf the Central Government shall b~ final in cases of reference bv the criminal F court to the Government. ·\n\nIn the present case there was in the beginning suggestion by the Officer Commanding of institution of Court Martial proceedings. When the S]J'cial Judge found on the application made by the State on 17 January, 1967 that section 122 of the Army Act raised the bar of limitation with regard to initiation of Court Martial proceedings and farther found that there were civilians charged along with the appellants, it was not unjustified in asking the Officer Commanding to make a reference to the Government in order to prevent any competition or conflict between the criminal courts. and Court Martial. On 17th January, 1967 as matters stood, the Special Judge had the intimation from the Officer Commanding that Court Martial proceedings would be instituted.\n\nTherefore on a reading of section 126 of the Army\n\nAct the Special Judge requested the Officer Commaading to refer the question to the Central Government for determination as to the Court before which proceedings would be started.\n\nSection 549 of the Code of Criminal Procedure e_mpowers the Central Government to make Rules as to the case in wliich persons subject to military, naval or air-force law be tried by a court to whicih the Code of Criminal Procedure applies or by Court Maritial.\n\nWhen any such person is brought before the Magistrate and charged with an offence for which he is liable to be tried either by a cour~ or by Court Martial, the Magistrate shall have regard to such Rules and shall in appropriate cases deliver him together with the stati; ment of the offence of which. he is accused to the Commanding Officer for the purpose of being tried by Court Martial.\n\nThere are 9 rules under section 549 of the Code of Criminal Proo-...dure.\n\nThese Rules are called Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.\n\nBroadly stated, rules 3 to 9 are as follows Under rule 3, (a) a Magistrate may proceed against a persun subject to military, naval or air-force laws without being moved by a competent military, naval or air-force authority, or (b) by being moved by such authority.\n\nUnder rule 4 if the Magistrate is of opinion that he will proceed against such a person without being moved by the competent military, naval or air-force authority, he shall give written notice to the Commanding Officer of the accused and until the expiry of a period of sev.n days shall not (a) convict or acquit the accused, or (b) har him in defence or ( c) frame in writing a charge, or ( d) make an order committing the acclisell for trial by the Hight Court or by the Court of Sessions under section 213 of the Code of Criminal Procedure Under Rule 5 where within the period of seven days or at any time thereafter before the Magistrate has done any act or is.sued any order, the Commanding Officer gives notice to the Magistrate that the accused should be tried by Court Martial, the Magistrate shall stay the proceedings and if the accused is in his power or under this control the Magistrate shall deliver him to the relevant authority Under rule 6 where a Magistrate has been moved by the' competent military, naval or airforce authority under rule J(b) and the Commanding Officer subsequently giV-es notice to the Magistrate !hat the accused shall be tried by Court Martial, such Magistrate, 1f he has not before ret:eiving such notice done any act or issued any order referred to in rule 4, shall stay proceedings and, if the accused is in his power or under his control, shall deliver him to te relevant uthority. Under i; ule 7 where an accused person havmg been delivered by the Magistrate under rule S or 6 is not tried by a court-martial for the offence of which he is accused;\n\n$88 Sl'PREME COL'RT REPORTS\n\n[1971J3 S.C.R.\n\nor other effectual proceedings are not taken against him, the Magistrate shall report the circumstance to the State Government which may, in consultation with the Central Government take appropriate s'teps to ensure that the accused person is dealt with in accordance with law.\n\nUnder rule 8, where it comes to the notice of the Magistrate that a person subject to military. naval or air-force la~ has committed an offence, proceedings in respect of which are instituted before him and_ that the presence of such a person cannot be procured unless throngh military, naval or air-force authorities the Magistrate may by a written notice requir~ the Commanding Officer of such person either to deliver such a person to a Magistrate to be named in the said notice for being proceeded against according lo law, or to stay the proceedings against such person before the courtmartial if since instituted, and to make a referenc-~ to the Central Government for detem1ination as to the Court before which the proceedings should be instituted.\n\nUnder rule 9 where a person subject to miitary. naval or air-force law has committed an offnce which in the opinion of the competent military, naval or air-force authority. as the case may be, ought to be tried by a Magistrate in accordance with the civil law in force or where the Central Government has on a reference mentioned in rule 8. decided that proceedings against such person should be instituted before a Magistrate the Commanding Officer of such person shaH after giving a written notice to the Magistrat~ concerned, deliver such person under proper escort to that Magistrate.\n\nThese Rules enjoin comity of criminal courts and Court Martial. .Before proceeding against the person subject to military law, the M!ljl:istrate is required to give notice to the Commandinj! Officer. If within the period of seven days or before the M)!!istrate has done any act or issued any order the Commaridmg Officer !lives notice that the accused should be tried by a Court-Martial the criminal court shull stay proceedings. If :thereafter the court-martial proceeding is not taken the Magistrate may report to the State Government which may in consultation with the Central Governmen !take appropriate steps to ensure that the accused is dealt with in accordance with law.\n\nWhero~ it comes to the notice of the Magistrate that proceeding~ ought to be instituted before him he may by written notice require the Commanding Officer to deliver the accused to the Magistrate or require the Commanding Officer to stay the Court Martial proceedings if instituted and tomake a refer•wce to the Central Government for detennination as to the Court before which the proceedings shall be instituted. Rule 8 again supports the step taken by the Magistrate in the present case. on 17th\n\nJanuary 1967 when he requir-.xl the Commanding Officer to make a' reference to the Central Government. Under rule 9 if the relevant authority of the armed forces is of opinion that the criminal court ought to try ihe offender or if the Central Government on a reference to it is of similar opinion the offender is delivered to the Magistrate.\n\nRule 9 is also attracted in the present case by reason of two features, viz., the Officer manding on 28th January, 1967 informed that no Court-Martial proceeding would be instituted, and, secondly, the miiitary\n\nauthorities never asked the criminal court to deliver the appellants to the military authority. The facts and circumstances inJicate that the competent military authority formed the opinion that the appellants should be tried by the Special Court.\n\nThis Court in the case of Ram Sarup v. The Un.ion of India(! J considered the question whether section 125 of the Army Act could be said to be discriminatory and violative of Article 14 of the Constitution.\n\nIn that case Ram Sarup who was subject to the Army Act was tried by the General Court Martial found guilty and sentenced to death.\n\nHe then filed a petition under Article 32 of the Constitution for a writ of habeas corpus and a writ of certiorari setting aside the order of the Court Martial and the order of the Central Government. It was contended there that section 125 of the Army Act left to the unguided discretion of the Officer mentioned i'n that section to decide whether the accused should be tried by a court-martial or by a criminal court. This Court repelled that contention and held \"there is' sufficient material in the Act which indicates policy which is to a guide for exercising discretion and it is expected th; it the discretion is exercised in accordance with it. The Magistrate could question it and the Government in case of difference of opinion between the views of the Magistrate and the Army authorities decide the matter finally\".\n\nIn Ram Sarup's case\n\n(supra) this Court further examined the meaning of sections 125 and 126 of the Army Act and section 549 of the Code of Criminal Procedure. and Rues 3 to 9 of the Criminal Courts Court Martial (Adjustment of Jurisdiction) Rules, 1952 made\n\nune: the C:ode .of Crimin~! Procure and laid down two propos1tio!l~; First, 1f the Magistrate will find that the military\n\nauthor!!Is do not take effectual proceeding~ under the Anny Act w1thm a reasonabl!l time the Magistrate can report the circl.!111stance to the State Government which may in consultation with the Central G(lvernment take appropriate steps to ensure that the .accused is dealt with in accordance with law. Secondly. whenever there will be difference of opinion between the criminal\n\n(I) (1964] 5 S.C.R. 931.\n\ncourt and the military authorities about the forum where an accused is to be tried for the particular offence committed by him, final choice about the forum of the trial of a person accused of a civil offnce meaning thereby an offence triable by criminal court rests with the Central Government.\n\nThis Court in the recent decision in Som Datt Datta v.\n\nUnion oj India & Ors. ( 1) considered the effect of rule 3 of the Rules framed under section 549 of the Code of Criminal Procedure.\n\nThe petitioner in that case made an application. under Article 32 for a writ of certiorari for quashing the proceedings before the Court-Martial whereby he was found guilty of charges under sectiom 304 and 149 of the Indian Penal Sode and sentenced to 6 years rii:torous imprisonment.\n\nThe contention in that case was that having regard to the provisions of section 1 ::?5 of the Arm~ Act and having further regard to the fact that the Am1y Offior liad in the first instance decided to hand over the matter for in\\'estigation to the Civil Police and by reason of absence of notice under Rule 5 of the Rules under section 549 of the Code of Criminal Procedure that the petitioner should be tried by Court Martini. the criminal court alone had jurisdiction under rulf.! 3 to try the petitioner.\n\nThis Court held that\n\nth~ action of the Officer under section 125 of th~ Army Act constituting a cort-martial indicated that decision was tak, en under section 125 of the Army Act for institution of Court- Martial proceedings. Rule 3 was said to be applicable to a case where the Police had completed the investigation and the accused was brou.2ht before the Magistrate after submission of the chargesheet.\n\nRule 3 could not be invoked where the Police merely started investigation.\n\nIn Some Datt Datta's case (supra) this Court said about sections 125 and 126 of the Army Act \"These two sections of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction having regard to the exingencies of the situation in particular case.\" Jn the present case the special Judge gave notice to the Officer Commanding.\n\nThe Officer Commandinl!, had first said that Court-Martial proceedings would be instituted.\n\nThe Officer Commanding thereafter cancelled that intimation: There is no further aspect of conflict between the criminal court or the Court-Martial in the present case.\n\nThe appellants. contended that they should be delivered to the Army authorities.\n\nThe Arn1y authorities did not want deli very of theappellants to them for any C:::ourt-Martial proceedings.\n\nOn the contrary, the Army authorities indicated in no uncertain tenns that the Special Judge should proceed with the case.\n\nWhen Special Judge asked the Army authorities to make. a reference\n\n\nA to the Government the Army authorities instead of making a reference to the Government cancelled their first intimation about the institution of Court-Maria! proceedings with the result that the Officer Commanding expr-ssed the opinion that the appellants ought to be tried by a Magistrate in accordance with law of the land. n\n\nThis Court in the recent unreported decision in Jogif!der Si11gii v. State of Himachal Pradesh(') considered the question\n\nus to whether the trial and conyiction by the Assistant Sessio, ns Judge in respec~ of an offence under section 376 of the Indian Penal Code violated provisions of the Army Act read with criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.\n\nThe contention in that case was that the criminal court did not follow the provisions contained in section 126 of the Army Act read with rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.\n\nIt was particularly emphasised in that case that it was for the competent officer to decide in the first instance that the appellant should be tried by Coun Martial.\n\nThis Court referred to the earlier decision of this Court in Major E. G. Barsay v. State of Bombay(') for the proposition that there was no exclusion of Jurisdiction of the ordinary criminal courts in respect of offences which are also triable by Court Martial. Sections 125 and 126 of the Army Act leave no doubt in that matter; Rule 3 (a) of the Crimin:il Courts and Court Martial 'Adjustment of Jurisdiction) Rules also indicates that the criminal court can of its own motion start proceeding against an accused who is subject to the Army Act. The several provisions of the Army Act and the Rules also indicate that the criminal court is not powerless when it is of opinion that the case should be tried in a criminal court and in case of conflict betwe-n the criminal court and the Court-Martial the order of. the Central Government is final\n\ndcisi?n as to the forum_ of trial of the offence. In Joginder Singh s case (supra) this Court examined the Rules and aid\n\nthat the abence of a notice under rule 4. was not fatal in the facts and c!rcumstaces of the case because the competent military authonty knowing the nature of the offence released the\n\naccuse~. from military ustody and handed him over to the tivil\n\natont1es, an~ _the action amounted to a decision by the mthtary athontle~ tat the accused in that case was to be tried by an ordmary cnmmal court and not by Court-Martial\n\nThe provisions of the Army Act, the Rules under section 549 of tiie Code of Criminal Procedure and the decision of:\n\n0this\n\n(!) Criminal Appeal No.i4 of 1969 decided on 30-11-1970\n\n\nCourt all support the conclusion that the Special Judge in the present case was justified in .askipg the Officer Commanding to make a reference to the Central Government and that the Officer Commanding in the facts and circumstances of the case expressed the opinion tliat the appellants should be tried by criminal courts because there would in fact be no Court-Martial proceedings.\n\nThe contention on behalf of the appellants that the Officer Commanding having once exercised the discretion under rule 5 could not cancel the discretion is unacceptable. The Officer Commanding upon consideration of facts and circumstances and particularly in the context of the comrnunica'tion of the Special Judge on 17th January, 1968 intimated on 28 January, 1967 that the previous Jetter dated 16 January, 1967 was cancelled. There are no alfogations of malafide or abuse of power to challenge the propriety of the exercise of power and discretion.\n\nThe Officer Commanding did not lack authority of jurisdiction to communi6ate to the Special Judge that Court-Martial proceeding~ would/not be instituted.\n\nTh~ Criminal Law Amending Act, 1966 being Act No. 22 of 1966 has an important bearing on the present appeal. Section 5 of Act 22 of 1966 is as follows :-\n\n\"( 1) Notwithstanding anything contained in this Act or in the principal Act as amended by this Act,-\n\n( a) cases pending immediately before the 30th day of June, 1966, before a Special Judge i, n which one or more persons subject to military naval or air-force law is or are charged with and tried for an offence under the principal Act together with any other person or persons not so subject, and\n\n(b) cases pending immediately before the said date before a Special Judge in which one or more persons subject to military', naval or air-force law is or are alone charged with and tried for an offence under the principal Act and charges have already been framed against such person or persons shall be tried and disposed of by the special Judge.\n\n( 2) Where in any case pending immediately before the 30th day of June, 1966, before a special Judge one or more persons subject to military, naval or air force law is or are alone charged with and tried for. an offence\n\nunder the principal Act and charges have not been framed against such person or persons before the said date,\n\n., .\n\nH r\n\nor where, on appeal or on revision against any sentence passed by a special Judge in any case in which one or more perscns so subject was or were alone tried, the Appellate Court has directed that such person or persons be retired and on such retrial charges have not been framed against such person or persons before the said date, then, in either case, the special Judge shall follow the procedure laid down in section 549 of the Code of Criminal Procedure, 1898, as if special Judge were a Magistrate.\n\nThe question is whether the present appeal relates to a case pending immediately before 30 June, 1966 before a Special Judge within the meaning of section 5(l)(a). Sanstion was accorded\n\non 29 October, 1965 under section 197 of the Code of Criminal Procedure. A charge-sheet was submitted before the Special Judge on 27 January, 1966. On 5 March, 1966 the case was adjourned to 4 July, 1966 at the request of the Public Prosecutor for enabling the Public Prosecutor to supply the copies of documents envisaged by section 173 of the Code of Criminal Procedure. The case was numbered 4/66/Spl. Cr.\n\nThe word 'pending' came up for consideration before this Court in Asgarali Narnrali Singaporawalla v.\n\nThe State of Bombay(!).\n\nCriminal Law Amendment Act, 1952 provided for the trial of all offences under section 161, 165 or 165-A of the Indian Penal Code or sub-section (2) of section 5 of the Prevention of Corruption Act, 194 7 exclusively by Special Judges and directed the transfer of all such trial pending on the date of the coming into force of the Act to Special Judges. . The Presidency Magistrate continued the trial and acquitted the appellant. Upon\n\nappeal by the State Government the High Court held that from the date of the commencement of the Act the Presidency Magistrate lost all ju.risdiction to continue the trial and ordered retrial by the Special Judge. It was contended that on the date of the coming into force of the Criminal Law Amendment Act, 1952, vi;::., 28 July, 1952, the case was not pending because no Special Judge was appointed until 26 September, 1962 and the trial also came to an end on 26 September, 1962. This Court did not accept that contention because the accused was not called upon his defence on 28 July, 1962 and the examination of the accused under section 342 of the Code of Criminal Procedure took pla.00 after that date and the accused filed his writen statement on 14 August, 1952 and the addresses by the prosecution as well as the defence continued right up to 26 September, 1952. Tue word 'pending' will ordinarily mean that the matter is not concluded and\n\nII) [1957] S.C.R. 678.\n\nG~Ji!.A.¥ - If'~--~ -· .,,,.,,\n\nSUPREME COL'RT REPORTS\n\nlhe court which has cognizance of it can make an order on the matter in issue. The test is whether any proceedings can be taken in the cause before the court or tribunal where it is said to be pending. The answer is that until the case is concluded it1s pending.\n\nJudged by these tests it will appear that this present appeal relates to a case pending before 30 June, 1966.\n\nThe next question is as to what meaning should be given to the words 'charged with and tried for an offence under the principal Act', occurring in section 5(l)(a). Counsel for the appellants conteqded that the words \"charged with and tried for an titfence\" would mean that charges had been actually framed and\n\nI rial commenced.\n\nThere is a distinction between clauses (a) and (b) of sub-section (I) of section 5 of Act 22 of 1966.\n\nClause (a) deals with persons who are subject to the military, 11aval or air-force law being charged with and tried for an offence .together. with a pers0n or persons not so subject whereas clause ( b) deals only with persons who are subject to lnilitary, naval .or air-force law. In the present case, the appellants are persons who were subject to military law and they were charged along with civilians. Therefore, clause (a) is attrached. It is in connection with a case which concerns only .persons subject to military, naval or air-force law that under section 5 (1 )( b) it is en- •tcted that a case is not only to be pending before 30 June, 1966 before a Special Judge but that charges should also have been framed against such persons. The absence of framing of charges in clause (a) and requirement of framing charges in clause (b) repels the construction suggested by counsel for the appellants that charges should have been framed in the present case in order to make it a case pending within the meaning of section 5(1)(a) of the 1966 Act.\n\nThe words \"charged with and tried for an -offence\" mean that there are accusations and allegations agaiµst the person.\n\nThe words \"charged with'' are used in section 5 ( l) (a) in contra-distinction to the words \"charges have already been framed\" in section 5( 1) (b) of the Act.\n\nTherefore the use nf separate words in the two separate 'clauses (a) and (b) is significant to indicate that the statute speaks of the words \"charged with\" in clause (a) not in the sense of \"charges have been framed\" in clause (b). The legislative intent is abundantly clear from the use of. sejlarate words.\n\nSections 251, 251A, 252, 253 and 254 of the Code of Criminal Procedure throw some light as to the meaning to be given to the words \"charged with and tried for an offence\".\n\nIn the trial of warrant cases instituted on a police report. the Magistrate is to follow the procedure specified in section 251A and te present is one such. Sectien 251A contemplates that the Mag1s- 1rate on the commencement of the trial shall satisfy himself that\n\nr c •\n\nI h..-;\n\nH r::.-,\n\nthe documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them he shall cause them to be\n\nso furnished. In the present case, it will appear that in the month of March, 1966 the Public Prosecutor made an application to the Special Judge for adjourmnent of the case till the month of July, 1966 to enable copies of papers to be given to the accused uner section 173 of the Code of Criminal Procedure. Under section 251A(2) if, upon consideration of all the docun; ients referred to in section 173 and making such examination, if any, of the accused as the Magistrate thinks necess.ary and .after giving the pr?secution and the accused an opportumty of bemg heard, the Magistrate considers the charge against the accused to be groundless, p.e shall discharge him. This provision that the Magistrate may discharge the accused where the charge against the accused appears to e groundless indicates that the words \"charged with\" cannot be said to mean framing of a charge. It is because the charge or the allegation or accusation against the accused is groundless that he is discharged.\n\nAgain, in section 252 it will appear that the Magistrate in any case instituted otherwise than on a police report shall proceed to hear the complainant and take evidence in support of the prosecution.\n\nUnder section 253, if, upon taking the evidence referred to in section 252, and making such examination of the accused as the Magistrate thinks necessary, lte finds that no case against the accused has been made out, the Magistrate shall discharge him. The provisions contained in sections 252 and 253 are cases where the Magistrate deals with warrant case instituted not Olll a\n\npolice report but upon a complaint.\n\nThese three sections i.e. sections 251A, 252 and 253 indicate that an accµsed can be discharged by the Magistrate if the charge appears to be groundless. Charge is framed under section 254 of. the Code of Cr_imi1_1al rocedw; e. when the Magistrate upon evidence and exanunation 1s of op1mon that there is ground fQf presuming !hat the accused has committed an offence which the\n\nMaistrate is competent to try and which could be ordinarily pumshed by them that he shall frame in writing a charge against the accused. The charge under section 255 of the Code of Crimi-· rtal Procedure is read and explained to the accused and Ile shall be asked whether he is guilty or has any defence to make.\n\nH The Special iudge therefore has jurisdiction to try and dispose of the case. It is a case pending before 30 June 1966 and under Act 22 of 1966 it is to be tried and disposed of by the Magistrate.\n\nThe letter dated 28 January, 1966 is an additional reason to indi; 13- LllOOSupCI/71\n\n[1~71]3 s.c.R.\n\ncate that the appellants are not required to be delivered to the competent military authorities.\n\nIt is also in evidertce that no court martial proceeding is pending and the appellanfs are to be tried by the Special Judge. The judgment of the Hiph Court is upheld. ·\n\nThe appeal therefore fails and dismissed.\n\nR. K. P. S.\n\nAppeql dismissed.", "total_entities": 189, "entities": [{"text": "s:'K,. ~SHYAP & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "S.K. KASHYAP & ANR", "offset_not_found": false}}, {"text": "March 2, 1971", "label": "DATE", "start_char": 46, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "THE STATE OF RAJASTHAN\n\nMarch 2, 1971\n\n[C. A. VAJDIAL!NGAM AND A. N. RAY, JJ.J\n\nArmy Act, 1878 (1 of 1878)-Sections 125 and 12&-Code of Criminal Procedure, 1898 (5 of 1898) Section 549-Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952-Jurisdiction of Special Judge-Ru/es 4, 5, 8 and 9-Scope of Rules."}}, {"text": "A. N. RAY, JJ", "label": "JUDGE", "start_char": 85, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "Army Act, 1878", "label": "STATUTE", "start_char": 102, "end_char": 116, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sections 125 and 12", "label": "PROVISION", "start_char": 129, "end_char": 148, "source": "regex", "metadata": {"linked_statute_text": "Army Act, 1878", "statute": "Army Act, 1878"}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 150, "end_char": 182, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 549", "label": "PROVISION", "start_char": 195, "end_char": 206, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1898", "statute": "Code of Criminal Procedure, 1898"}}, {"text": "Amendingi Act, 1966", "label": "STATUTE", "start_char": 373, "end_char": 392, "source": "regex", "metadata": {}}, {"text": "Section 5(1)(a)(b)", "label": "PROVISION", "start_char": 396, "end_char": 414, "source": "regex", "metadata": {"linked_statute_text": "Amendingi Act, 1966", "statute": "Amendingi Act, 1966"}}, {"text": "January 12, 1967", "label": "DATE", "start_char": 604, "end_char": 620, "source": "ner", "metadata": {"in_sentence": "On January 12, 1967 the Special Judge gave notice to the commanding officer notifying under rule 4 of the Criminal Courts and Courts Martial (Adjustment of Juris-·\n\ndiction) Rules, 1952, framed under s. 549 of the Code of Crirr.inal Pro• cedurc, that charges would be framed against the accused."}}, {"text": "s. 549", "label": "PROVISION", "start_char": 801, "end_char": 807, "source": "regex", "metadata": {"linked_statute_text": "Amendingi Act, 1966", "statute": "Amendingi Act, 1966"}}, {"text": "January 16, 1967", "label": "DATE", "start_char": 901, "end_char": 917, "source": "ner", "metadata": {"in_sentence": "On January 16, 1967, the Officer Commanding wrote to the Special Judge, in exercise of the powers conferred on him hlle 5 of the 1952 Rules, that the four appellants belonging to his unit would be tried by Court Martial under the Army Act, 1950, and \\he Court of the Special Judge was requested to stay the proceedings with immediate effect."}}, {"text": "Court Martial under the Army Act, 1950", "label": "STATUTE", "start_char": 1104, "end_char": 1142, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "January 17, 1967", "label": "DATE", "start_char": 1243, "end_char": 1259, "source": "ner", "metadata": {"in_sentence": "On January 17, 1967, the State of Rajasthan made an application before the Special Judge stating that the period of limitation fclr the purpose of Court Martial had already expired and tilat the Special Judge take cognisance of the case on the basis of sanction by the Central Government."}}, {"text": "the State of Rajasthan", "label": "RESPONDENT", "start_char": 1261, "end_char": 1283, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF RAJASTHAN", "offset_not_found": false}}, {"text": "Central Government", "label": "ORG", "start_char": 1509, "end_char": 1527, "source": "ner", "metadata": {"in_sentence": "On January 17, 1967, the State of Rajasthan made an application before the Special Judge stating that the period of limitation fclr the purpose of Court Martial had already expired and tilat the Special Judge take cognisance of the case on the basis of sanction by the Central Government."}}, {"text": "January 28, 1967", "label": "DATE", "start_char": 1632, "end_char": 1648, "source": "ner", "metadata": {"in_sentence": "On January 28, 1967, the Commanding Officer wrote to the Special Judge that the notice dated January 16, 1967, unde'r Rule 5, served on the Special Judge might be treated as cancelled."}}, {"text": "June 30, 1966", "label": "DATE", "start_char": 2960, "end_char": 2973, "source": "ner", "metadata": {"in_sentence": "was that no Court Martial proceeding was to be commenced and that in any event the Special Judge had jurisdiction and authority to try and dispose\n\nof the case which was pending on June 30, 1966 in the Criminal Court by virtue of the provisions contained in the Criminal Law."}}, {"text": "Army Act", "label": "STATUTE", "start_char": 3146, "end_char": 3154, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 549", "label": "PROVISION", "start_char": 3172, "end_char": 3183, "source": "regex", "metadata": {"statute": null}}, {"text": "(1964] 5 S.C.R. 931", "label": "CASE_CITATION", "start_char": 3958, "end_char": 3977, "source": "regex", "metadata": {}}, {"text": "[1962] 2 S.C.R. 195", "label": "CASE_CITATION", "start_char": 4192, "end_char": 4211, "source": "regex", "metadata": {}}, {"text": "Section 5(1)", "label": "PROVISION", "start_char": 5108, "end_char": 5120, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 5198, "end_char": 5207, "source": "regex", "metadata": {"statute": null}}, {"text": "S. V. Gupte", "label": "OTHER_PERSON", "start_char": 5619, "end_char": 5630, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, D. P. Singh."}}, {"text": "D. P. Singh", "label": "OTHER_PERSON", "start_char": 5632, "end_char": 5643, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, D. P. Singh."}}, {"text": "R. K. Jain", "label": "OTHER_PERSON", "start_char": 5645, "end_char": 5655, "source": "ner", "metadata": {"in_sentence": "R. K. Jain !"}}, {"text": "nebabrata Mukherjee", "label": "LAWYER", "start_char": 5699, "end_char": 5718, "source": "ner", "metadata": {"in_sentence": "nebabrata Mukherjee and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5723, "end_char": 5737, "source": "ner", "metadata": {"in_sentence": "nebabrata Mukherjee and R. N. Sachthey, for the respondent."}}, {"text": "Ray", "label": "JUDGE", "start_char": 5804, "end_char": 5807, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRay, J.\n\nThis is an appeal by special leave against."}}, {"text": "K. KASllYAP", "label": "OTHER_PERSON", "start_char": 5943, "end_char": 5954, "source": "ner", "metadata": {"in_sentence": "s. K. KASllYAP r. STATF ( Rar. !. )"}}, {"text": "Additio.nal Special Judge. Rajasthan, Jaipur", "label": "COURT", "start_char": 6023, "end_char": 6067, "source": "ner", "metadata": {"in_sentence": "The question for consideration is whether the Additio.nal Special Judge."}}, {"text": "section 197", "label": "PROVISION", "start_char": 6258, "end_char": 6269, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6( 1)", "label": "PROVISION", "start_char": 6309, "end_char": 6322, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 6334, "end_char": 6362, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 120", "label": "PROVISION", "start_char": 6452, "end_char": 6464, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 6509, "end_char": 6526, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 6554, "end_char": 6582, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 5", "label": "PROVISION", "start_char": 6593, "end_char": 6603, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 6635, "end_char": 6663, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Special Police Establishment, Jaipur Branch", "label": "PETITIONER", "start_char": 6670, "end_char": 6713, "source": "ner", "metadata": {"in_sentence": "The Special Police Establishment, Jaipur Branch on 27 January, 1966 pu( up before the Special Judge, Jaipur a charge- 'hcet against the four appellants and four civilians."}}, {"text": "Special Judge, Jaipur", "label": "COURT", "start_char": 6752, "end_char": 6773, "source": "ner", "metadata": {"in_sentence": "The Special Police Establishment, Jaipur Branch on 27 January, 1966 pu( up before the Special Judge, Jaipur a charge- 'hcet against the four appellants and four civilians."}}, {"text": "13 September, 1966", "label": "DATE", "start_char": 6932, "end_char": 6950, "source": "ner", "metadata": {"in_sentence": "The four appellants thereafter made an application on 13 September, 1966 before the Special Judge tlrnt they were Commissioned Officers of the Indian Army and\n\n11 ithout complying with the provisions of section 549 of the Code of Criminal Procedure and the Rules thereunder called the \"Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules,\" the Special Judge could not proceed against the appellant> in the criminal court which under the Army Act is described a> \" civil court as opposed to court-martial under the Army Acts."}}, {"text": "section 549", "label": "PROVISION", "start_char": 7081, "end_char": 7092, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7100, "end_char": 7126, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Army Act", "label": "STATUTE", "start_char": 7332, "end_char": 7340, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "10 October, 1966", "label": "DATE", "start_char": 7468, "end_char": 7484, "source": "ner", "metadata": {"in_sentence": "The Special Judge rejected that application on 10 October, 1966 ; md ordered that the case would be put up for further proceedings ,; n 16 January, 1967."}}, {"text": "Rajasthan High Court", "label": "COURT", "start_char": 7626, "end_char": 7646, "source": "ner", "metadata": {"in_sentence": "A revision application was thereafter moved in the Rajasthan High Court."}}, {"text": "High Court of Rajasthan", "label": "COURT", "start_char": 7652, "end_char": 7675, "source": "ner", "metadata": {"in_sentence": "The High Court of Rajasthan by \"rder and judgment dated 20 Decemper, 1966 said that the Special\n\n.T udge would proceed in accordance with the provisions of Rule~\n\n3 and 4 of the Rules framed under section 549 of the Code of Criminal Procedure."}}, {"text": "20 Decemper, 1966", "label": "DATE", "start_char": 7704, "end_char": 7721, "source": "ner", "metadata": {"in_sentence": "The High Court of Rajasthan by \"rder and judgment dated 20 Decemper, 1966 said that the Special\n\n.T udge would proceed in accordance with the provisions of Rule~\n\n3 and 4 of the Rules framed under section 549 of the Code of Criminal Procedure."}}, {"text": "section 549", "label": "PROVISION", "start_char": 7845, "end_char": 7856, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7864, "end_char": 7890, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "12 January, 1967", "label": "DATE", "start_char": 7972, "end_char": 7988, "source": "ner", "metadata": {"in_sentence": "In compliance with the aforesaid order of the High Court, the Special Judge on 12 January, 1967 gave notice to the Commanding Officer, 123 Infantry Battalion (T.A.), Jaipur notifying under Rule 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 that the appellants along with three civilians were charged with the offences as indicated above and\n\nchargs would be \"frf\\llled against the accused after the expiry of\n\na penod of seven days from the date of the service of the notice\"."}}, {"text": "16 January, 1967", "label": "DATE", "start_char": 8412, "end_char": 8428, "source": "ner", "metadata": {"in_sentence": "On 16 January, 1967 the Officer Commanding wrote to the Special\n\n.T udge for Rajasthan that in exercise of the powers conferred upon him by Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 the Officer Commanding i:ave\n\nnotice that the four Officers meaning thereby the appellants belonged to his Unit and that the appellants would be tried by Court Martial under the Army Act, 1950 for the offences alleged to have\n\nbeen committed by them as set out in the notice of the Special Judge and that the Court of the Special Judge was requested."}}, {"text": "Army Act, 1950", "label": "STATUTE", "start_char": 8816, "end_char": 8830, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "R. N. Kesar", "label": "OTHER_PERSON", "start_char": 9161, "end_char": 9172, "source": "ner", "metadata": {"in_sentence": "The Jetter concluded by stating that the four appe!Jants might be delivered immediately to Major R. N. Kesar who was carrying the notice to be handed over to the Court by hand."}}, {"text": "17 January, 1967", "label": "DATE", "start_char": 9245, "end_char": 9261, "source": "ner", "metadata": {"in_sentence": "On 17 January, 1967 the State of Rajasthan made an application before the Special Judge that under section 122 of the Army Act, 1950 a period of three years was provided after which no Court Martial proceedings could be commenced against the Army Officers and the period of limitation was to be computed from the date of such offence."}}, {"text": "section 122", "label": "PROVISION", "start_char": 9341, "end_char": 9352, "source": "regex", "metadata": {"linked_statute_text": "Officers meaning thereby the appellants belonged to his Unit and that the appellants would be tried by Court Martial under the Army Act, 1950", "statute": "Officers meaning thereby the appellants belonged to his Unit and that the appellants would be tried by Court Martial under the Army Act, 1950"}}, {"text": "Army Act, 1950", "label": "STATUTE", "start_char": 9360, "end_char": 9374, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "India", "label": "GPE", "start_char": 10121, "end_char": 10126, "source": "ner", "metadata": {"in_sentence": "The State of Rajasthan submitted that the Special Judge took cognizance of the case on the basis of sanction granted by the Central Government and there were two orders one from the highest authority of the Government, namely, the President of India sanctioning the prosecution of the appellants by a competent criminal_court and the other by an Officer Commanding for holding a CourtJAartihl and therefore the matter might be referred to the Central Government for clarification."}}, {"text": "17 January. 1967", "label": "DATE", "start_char": 10379, "end_char": 10395, "source": "ner", "metadata": {"in_sentence": "The Special Judge on 17 January."}}, {"text": "28 January, 1967", "label": "DATE", "start_char": 10820, "end_char": 10836, "source": "ner", "metadata": {"in_sentence": "On 28 January, 1967 the Officer Commanding, 123 Infantry Battalion (T.A.), Jaipur wrote to the Special Judge that the notice under Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 served by the Officer on the Special Judge by Jetter dated 16 January, 1967 might be treated as cancelled."}}, {"text": "Jaipur wrote to the Special Judge that the notice under Rule", "label": "STATUTE", "start_char": 10892, "end_char": 10952, "source": "regex", "metadata": {}}, {"text": "Jetter", "label": "OTHER_PERSON", "start_char": 11083, "end_char": 11089, "source": "ner", "metadata": {"in_sentence": "On 28 January, 1967 the Officer Commanding, 123 Infantry Battalion (T.A.), Jaipur wrote to the Special Judge that the notice under Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 served by the Officer on the Special Judge by Jetter dated 16 January, 1967 might be treated as cancelled."}}, {"text": "21 March, 1968", "label": "DATE", "start_char": 11148, "end_char": 11162, "source": "ner", "metadata": {"in_sentence": "On 21 March, 1968 the appe!Jants made e.n application before the Additional Special Judge, Jaipur that the Commanding Officer acted illegally and without jurisdiction in cancelling the earlier notice dated 16 January, 1967 and the Commanding Officer should have made a reference to the Chief of the Army Staff."}}, {"text": "Additional Special Judge, Jaipur", "label": "COURT", "start_char": 11210, "end_char": 11242, "source": "ner", "metadata": {"in_sentence": "On 21 March, 1968 the appe!Jants made e.n application before the Additional Special Judge, Jaipur that the Commanding Officer acted illegally and without jurisdiction in cancelling the earlier notice dated 16 January, 1967 and the Commanding Officer should have made a reference to the Chief of the Army Staff."}}, {"text": "section 561", "label": "PROVISION", "start_char": 12225, "end_char": 12236, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 12246, "end_char": 12272, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "9 September, 1968", "label": "DATE", "start_char": 12463, "end_char": 12480, "source": "ner", "metadata": {"in_sentence": "The High Court by order dated 9 September, 1968 dismissed the revision application and directed the Special Judge, Rajasthan to conduct the trial expeditiously, because sufficient time had elapsed 'ince the submission of the charge-sheet by the Special Police Establishment Branch, Jaipur."}}, {"text": "Special Judge, Rajasthan", "label": "COURT", "start_char": 12533, "end_char": 12557, "source": "ner", "metadata": {"in_sentence": "The High Court by order dated 9 September, 1968 dismissed the revision application and directed the Special Judge, Rajasthan to conduct the trial expeditiously, because sufficient time had elapsed 'ince the submission of the charge-sheet by the Special Police Establishment Branch, Jaipur."}}, {"text": "Jaipur", "label": "GPE", "start_char": 12715, "end_char": 12721, "source": "ner", "metadata": {"in_sentence": "The High Court by order dated 9 September, 1968 dismissed the revision application and directed the Special Judge, Rajasthan to conduct the trial expeditiously, because sufficient time had elapsed 'ince the submission of the charge-sheet by the Special Police Establishment Branch, Jaipur."}}, {"text": "section 549", "label": "PROVISION", "start_char": 13615, "end_char": 13626, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 13634, "end_char": 13660, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "30th June, 1966", "label": "DATE", "start_char": 14243, "end_char": 14258, "source": "ner", "metadata": {"in_sentence": "Secondly, it was said that the Special Judge had jurisdiction and authority to try and dispose of the case which was pending on 30th June, 1966 in the criminal court by virtue .of the provisions contained in the Criminal Law Amendment r( Amending) Act, 1966."}}, {"text": "17th January, 1967", "label": "DATE", "start_char": 14459, "end_char": 14477, "source": "ner", "metadata": {"in_sentence": "The third contention was that the Special Judge was justified in making an order on 17th January, 1967 requesting the competent military authority fo make a reference to the Central Government failing which the Special Judge 1would make a referenq: to .the Central Government."}}, {"text": "sections 125 and 1", "label": "PROVISION", "start_char": 14770, "end_char": 14788, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 14799, "end_char": 14807, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, 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15995, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 16003, "end_char": 16011, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "These two sections of the Army Act", "label": "STATUTE", "start_char": 16209, "end_char": 16243, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Army Act", "label": "STATUTE", "start_char": 16442, "end_char": 16450, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 122", "label": "PROVISION", "start_char": 16866, "end_char": 16877, "source": "regex", "metadata": {"linked_statute_text": "These two sections of the Army Act", "statute": "These two sections of the Army Act"}}, {"text": "Army Act", "label": "STATUTE", "start_char": 16885, "end_char": 16893, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 126", "label": "PROVISION", "start_char": 17431, "end_char": 17442, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 549", "label": "PROVISION", "start_char": 17637, "end_char": 17648, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 17656, "end_char": 17682, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 17841, "end_char": 17867, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 549", "label": "PROVISION", "start_char": 18314, "end_char": 18325, "source": "regex", "metadata": {"statute": null}}, {"text": "section 213", "label": "PROVISION", "start_char": 19229, "end_char": 19240, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 19248, "end_char": 19274, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "17th\n\nJanuary 1967", "label": "DATE", "start_char": 23172, "end_char": 23190, "source": "ner", "metadata": {"in_sentence": "on 17th\n\nJanuary 1967 when he requir-.xl the Commanding Officer to make a' reference to the Central Government."}}, {"text": "28th January, 1967", "label": "DATE", "start_char": 23623, "end_char": 23641, "source": "ner", "metadata": {"in_sentence": "the Officer manding on 28th January, 1967 informed that no Court-Martial proceeding would be instituted, and, secondly, the miiitary\n\nauthorities never asked the criminal court to deliver the appellants to the military authority."}}, {"text": "section 125", "label": "PROVISION", "start_char": 24078, "end_char": 24089, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 24097, "end_char": 24105, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 14", "label": "PROVISION", "start_char": 24158, "end_char": 24168, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Sarup", "label": "PETITIONER", "start_char": 24204, "end_char": 24213, "source": "ner", "metadata": {"in_sentence": "In that case Ram Sarup who was subject to the Army Act was tried by the General Court Martial found guilty and sentenced to death.", "canonical_name": "Ram Sarup"}}, {"text": "Army Act", "label": "STATUTE", "start_char": 24237, "end_char": 24245, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 32", "label": "PROVISION", "start_char": 24354, "end_char": 24364, "source": "regex", "metadata": {"statute": null}}, {"text": "section 125", "label": "PROVISION", "start_char": 24552, "end_char": 24563, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 24571, "end_char": 24579, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ram Sarup", "label": "PETITIONER", "start_char": 25154, "end_char": 25163, "source": "ner", "metadata": {"in_sentence": "In Ram Sarup's case\n\n(supra) this Court further examined the meaning of sections 125 and 126 of the Army Act and section 549 of the Code of Criminal Procedure.", "canonical_name": "Ram Sarup"}}, {"text": "sections 125 and 126", "label": "PROVISION", "start_char": 25223, "end_char": 25243, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 25251, "end_char": 25259, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 549", "label": "PROVISION", "start_char": 25264, "end_char": 25275, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 25283, "end_char": 25309, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1964] 5 S.C.R. 931", "label": "CASE_CITATION", "start_char": 25919, "end_char": 25938, "source": "regex", "metadata": {}}, {"text": "section 549", "label": "PROVISION", "start_char": 26379, "end_char": 26390, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 26398, "end_char": 26424, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 32", "label": "PROVISION", "start_char": 26482, "end_char": 26492, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 26785, "end_char": 26794, "source": "regex", "metadata": {"statute": null}}, {"text": "section 549", "label": "PROVISION", "start_char": 27040, "end_char": 27051, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 27059, "end_char": 27085, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 125", "label": "PROVISION", "start_char": 27275, "end_char": 27286, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 27294, "end_char": 27302, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 125", "label": "PROVISION", "start_char": 27373, "end_char": 27384, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 27392, "end_char": 27400, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Datt Datta", "label": "OTHER_PERSON", "start_char": 27713, "end_char": 27723, "source": "ner", "metadata": {"in_sentence": "In Some Datt Datta's case (supra) this Court said about sections 125 and 126 of the Army Act \"These two sections of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction having regard to the exingencies of the situation in particular case.\""}}, {"text": "sections 125 and 126", "label": "PROVISION", "start_char": 27761, "end_char": 27781, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 27789, "end_char": 27797, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "These two sections of the Army Act", "label": "STATUTE", "start_char": 27799, "end_char": 27833, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 376", "label": "PROVISION", "start_char": 29261, "end_char": 29272, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 29280, "end_char": 29297, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Army Act", "label": "STATUTE", "start_char": 29325, "end_char": 29333, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 126", "label": "PROVISION", "start_char": 29520, "end_char": 29531, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 29539, "end_char": 29547, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sections 125 and 126", "label": "PROVISION", "start_char": 30085, "end_char": 30105, "source": "regex", "metadata": {"statute": null}}, {"text": "Army Act", "label": "STATUTE", "start_char": 30113, "end_char": 30121, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Army Act", "label": "STATUTE", "start_char": 30360, "end_char": 30368, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Army Act", "label": "STATUTE", "start_char": 30400, "end_char": 30408, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Joginder Singh", "label": "OTHER_PERSON", "start_char": 30723, "end_char": 30737, "source": "ner", "metadata": {"in_sentence": "In Joginder Singh s case (supra) this Court examined the Rules and aid\n\nthat the abence of a notice under rule 4."}}, {"text": "provisions of the Army Act", "label": "STATUTE", "start_char": 31218, "end_char": 31244, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 549", "label": "PROVISION", "start_char": 31262, "end_char": 31273, "source": "regex", "metadata": {"linked_statute_text": "Court-Martial\n\nThe provisions of the Army Act", "statute": "Court-Martial\n\nThe provisions of the Army Act"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 31282, "end_char": 31308, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "30-11-1970", "label": "DATE", "start_char": 31383, "end_char": 31393, "source": "ner", "metadata": {"in_sentence": "Criminal Appeal No.i4 of 1969 decided on 30-11-1970\n\nCourt all support the conclusion that the Special Judge in the present case was justified in .askipg the Officer Commanding to make a reference to the Central Government and that the Officer Commanding in the facts and circumstances of the case expressed the opinion tliat the appellants should be tried by criminal courts because there would in fact be no Court-Martial proceedings."}}, {"text": "17th January, 1968", "label": "DATE", "start_char": 32099, "end_char": 32117, "source": "ner", "metadata": {"in_sentence": "The Officer Commanding upon consideration of facts and circumstances and particularly in the context of the comrnunica'tion of the Special Judge on 17th January, 1968 intimated on 28 January, 1967 that the previous Jetter dated 16 January, 1967 was cancelled."}}, {"text": "Criminal Law Amending Act, 1966", "label": "STATUTE", "start_char": 32494, "end_char": 32525, "source": "regex", "metadata": {}}, {"text": "Section 5", "label": "PROVISION", "start_char": 32599, "end_char": 32608, "source": "regex", "metadata": {"linked_statute_text": "Criminal Law Amending Act, 1966", "statute": "Criminal Law Amending Act, 1966"}}, {"text": "Notwithstanding anything contained in this Act or in the principal Act as amended by this Act", "label": "STATUTE", "start_char": 32651, "end_char": 32744, "source": "regex", "metadata": {}}, {"text": "30th day of June, 1966", "label": "DATE", "start_char": 32790, "end_char": 32812, "source": "ner", "metadata": {"in_sentence": "Section 5 of Act 22 of 1966 is as follows :-\n\n\"( 1) Notwithstanding anything contained in this Act or in the principal Act as amended by this Act,-\n\n( a) cases pending immediately before the 30th day of June, 1966, before a Special Judge i, n which one or more persons subject to military naval or air-force law is or are charged with and tried for an offence under the principal Act together with any other person or persons not so subject, and\n\n(b) cases pending immediately before the said date before a Special Judge in which one or more persons subject to military', naval or air-force law is or are alone charged with and tried for an offence under the principal Act and charges have already been framed against such person or persons shall be tried and disposed of by the special Judge."}}, {"text": "section 549", "label": "PROVISION", "start_char": 34150, "end_char": 34161, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 34169, "end_char": 34201, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5(l)(a)", "label": "PROVISION", "start_char": 34390, "end_char": 34405, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "29 October, 1965", "label": "DATE", "start_char": 34433, "end_char": 34449, "source": "ner", "metadata": {"in_sentence": "Sanstion was accorded\n\non 29 October, 1965 under section 197 of the Code of Criminal Procedure."}}, {"text": "section 197", "label": "PROVISION", "start_char": 34456, "end_char": 34467, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 34475, "end_char": 34501, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 173", "label": "PROVISION", "start_char": 34756, "end_char": 34767, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 34775, "end_char": 34801, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Criminal Law Amendment Act, 1952", "label": "STATUTE", "start_char": 34968, "end_char": 35000, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 161, 165", "label": "PROVISION", "start_char": 35046, "end_char": 35062, "source": "regex", "metadata": {"linked_statute_text": "Criminal Law Amendment Act, 1952", "statute": "Criminal Law Amendment Act, 1952"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 35079, "end_char": 35096, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 5", "label": "PROVISION", "start_char": 35119, "end_char": 35128, "source": "regex", "metadata": {"linked_statute_text": "Criminal Law Amendment Act, 1952", "statute": "Criminal Law Amendment Act, 1952"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 35136, "end_char": 35164, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "appeal by the State Government the High Court held that from the date of the commencement of the Act", "label": "STATUTE", "start_char": 35404, "end_char": 35504, "source": "regex", "metadata": {}}, {"text": "was contended that on the date of the coming into force of the Criminal Law Amendment Act, 1952", "label": "STATUTE", "start_char": 35621, "end_char": 35716, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "26 September, 1962", "label": "DATE", "start_char": 35811, "end_char": 35829, "source": "ner", "metadata": {"in_sentence": "28 July, 1952, the case was not pending because no Special Judge was appointed until 26 September, 1962 and the trial also came to an end on 26 September, 1962."}}, {"text": "28 July, 1962", "label": "DATE", "start_char": 35984, "end_char": 35997, "source": "ner", "metadata": {"in_sentence": "This Court did not accept that contention because the accused was not called upon his defence on 28 July, 1962 and the examination of the accused under section 342 of the Code of Criminal Procedure took pla.00 after that date and the accused filed his writen statement on 14 August, 1952 and the addresses by the prosecution as well as the defence continued right up to 26 September, 1952."}}, {"text": "section 342", "label": "PROVISION", "start_char": 36039, "end_char": 36050, "source": "regex", "metadata": {"linked_statute_text": "It was contended that on the date of the coming into force of the Criminal Law Amendment Act, 1952", "statute": "It was contended that on the date of the coming into force of the Criminal Law Amendment Act, 1952"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 36058, "end_char": 36084, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "14 August, 1952", "label": "DATE", "start_char": 36159, "end_char": 36174, "source": "ner", "metadata": {"in_sentence": "This Court did not accept that contention because the accused was not called upon his defence on 28 July, 1962 and the examination of the accused under section 342 of the Code of Criminal Procedure took pla.00 after that date and the accused filed his writen statement on 14 August, 1952 and the addresses by the prosecution as well as the defence continued right up to 26 September, 1952."}}, {"text": "26 September, 1952", "label": "DATE", "start_char": 36257, "end_char": 36275, "source": "ner", "metadata": {"in_sentence": "This Court did not accept that contention because the accused was not called upon his defence on 28 July, 1962 and the examination of the accused under section 342 of the Code of Criminal Procedure took pla.00 after that date and the accused filed his writen statement on 14 August, 1952 and the addresses by the prosecution as well as the defence continued right up to 26 September, 1952."}}, {"text": "section 5(l)(a)", "label": "PROVISION", "start_char": 36957, "end_char": 36972, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 37213, "end_char": 37222, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 37801, "end_char": 37810, "source": "regex", "metadata": {"statute": null}}, {"text": "30 June, 1966", "label": "DATE", "start_char": 37882, "end_char": 37895, "source": "ner", "metadata": {"in_sentence": "It is in connection with a case which concerns only .persons subject to military, naval or air-force law that under section 5 (1 )( b) it is en- •tcted that a case is not only to be pending before 30 June, 1966 before a Special Judge but that charges should also have been framed against such persons."}}, {"text": "section 5(1)(a)", "label": "PROVISION", "start_char": 38262, "end_char": 38277, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 38454, "end_char": 38463, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5( 1)", "label": "PROVISION", "start_char": 38546, "end_char": 38559, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 251, 251A, 252, 253 and 254", "label": "PROVISION", "start_char": 38887, "end_char": 38923, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 38931, "end_char": 38957, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 251A", "label": "PROVISION", "start_char": 39176, "end_char": 39188, "source": "regex", "metadata": {"statute": null}}, {"text": "section 173", "label": "PROVISION", "start_char": 39381, "end_char": 39392, "source": "regex", "metadata": {"statute": null}}, {"text": "section 173", "label": "PROVISION", "start_char": 39808, "end_char": 39819, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 39827, "end_char": 39853, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 251A(2)", "label": "PROVISION", "start_char": 39861, "end_char": 39876, "source": "regex", "metadata": {"statute": null}}, {"text": "section 173", "label": "PROVISION", "start_char": 39939, "end_char": 39950, "source": "regex", "metadata": {"statute": null}}, {"text": "section 252", "label": "PROVISION", "start_char": 40548, "end_char": 40559, "source": "regex", "metadata": {"statute": null}}, {"text": "section 253", "label": "PROVISION", "start_char": 40746, "end_char": 40757, "source": "regex", "metadata": {"statute": null}}, {"text": "section 252", "label": "PROVISION", "start_char": 40803, "end_char": 40814, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 252 and 253", "label": "PROVISION", "start_char": 41021, "end_char": 41041, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 251A, 252 and 253", "label": "PROVISION", "start_char": 41183, "end_char": 41209, "source": "regex", "metadata": {"statute": null}}, {"text": "section 254", "label": "PROVISION", "start_char": 41334, "end_char": 41345, "source": "regex", "metadata": {"statute": null}}, {"text": "section 255", "label": "PROVISION", "start_char": 41690, "end_char": 41701, "source": "regex", "metadata": {"statute": null}}, {"text": "28 January, 1966", "label": "DATE", "start_char": 42066, "end_char": 42082, "source": "ner", "metadata": {"in_sentence": "The letter dated 28 January, 1966 is an additional reason to indi; 13- LllOOSupCI/71\n\n[1~71]3 s.c."}}]} {"document_id": "1971_3_897_902_EN", "year": 1971, "text": "BISWANATH BANARJEE\n\nSTATE OF WEST BENGAL & ORS.\n\nMarch 2, 1971\n\n[K. S. HEGDB AND P. JAGANMOHAN REDDY, JJ.]\n\nWest Bengal Board of Secondary Education Act (5 of 1963), ss. 16 and 46(2)-Existing employees to continue in office till arrangements are\n\nmGde under the Act-Appointment of Secretary under the Act-Whether services of previous Secretary dispensed with-Whelher existing employees are 'deemed' to be the employees of the Board under the Act.\n\nIn 1962, lbe appellant was appointed Seciretary . of the Board of Secondary Education constituted under the West Bengal Secondary Education Act, 1950, as amended in 1954. In 1963, the West Bengal Board of Seoondary Education Act was enacted repealing the earlier Acts and the rules made thereunder.\n\nThe 1963-Act constituted an entirely new Board of Secondary Education.\n\nUnder s. 46(2), the services of the persons in the employment of the Board under the old Act are continued until other provision is made.\n\nUnder s. 16, the power of appointment of the Secretary for the Board is ves.ted in the State Government and not in the Board. Rule 8 of the Rules made under the 1963-Act provided that the State Government may dispense with the services of the Secretary on three months' notice or payment of three months' salary in lieu of notice. The State Government dispensed with the services of the appellant paying bim three months' salary in lieu of notice, and appointed a new secreta'ry in his place.\n\nOn the que.stions : ( 1) Whether the State Government ·coulJ act under r. 8 in respect of a person who is continued in service under s. 46 of the 1963-Act; and (2) Whether the services of an employee cf the Board could be terminated by the State Government,\n\nHELD: (I) All that the 1963-Act provides for is the continuance of the employees of the prevrous Board till other. arrangements are made.\n\nThat is, in the present case, the appellant was Continued in_ service only 1mlil tmother secretary was appointed by the State Goyernment under the 1963-Act; and the State Government has the power to appoint a Secretary under s. 16 of the Act, irrespectiYe of its powers under the Rules. [9C l A-C]\n\n(2) Under s. 46(2) of the 1963-Act the appellant merely continues in service but he is not deemed to be an employee of he Board. Therefore, there is no basis for the argument tbat the services of an em ployce of the Board could only be terminated only by the Board al)d not lJy the State Government. [901 C, Fl\n\nSt11.te of Assam v. Kripanath Sarma, [1967] 1 S.C.R. 499, distinguished.\n\nCIVIL APPELLATE JyRJSDICTION: Civil AJ!lleals Nos. 1674 and 1675 of 1969.\n\nAppeals from the judgment and decree dated July 23, 1968 o~ the Calcutta High Court in Appeal from Original Order Nos. 185 and 186 of 1967.\n\n/3. Sen, D. N. Mukherjee and Somendra Chandra Bose, for the .ppellant.\n\nK. R. Chaudhuri and K., Rajendra Clwwdhary, for resp<>ndents Nos. 2, 3 and 6.\n\nSantosh Chatterjee, G. S. Chatterjee for Sukumar Basu, for respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nP. Jaganmohan Reddy, J.-These appeals are by a certificate under Art. 132(C) of the Constitution of India against the judgment of the Calcutta High Court, which have by an order of this Court dated 25-8-1969 been consolidated for the purpose of hearing. The short question for determination in these appe;1ls in whether under the provisions of the West Bengal Board of Secondary Education Act 5 of 1963 read with Rule 8 of tlie West Bengal Board of Secondary Educatiqn (Appointment of scretary) Rules, the appellant could be discharged from the\n\nsrvice oJ the Board of Education. The appellant was an office\n\nSuporintendent of the Board constituted under the West Bengal Secondary Education Act 37 of 1950 (hereinafter called 'the\n\n1950 Act'). He was promoted as Assistant Secretary on 12-7-1952. as Deputy Secretary on 18-6-56 and on the 1st/8th August 1962 he was appointed as Secretary on probation and confirmed on 1-8-63 by an order dated the 24th August '63.\n\nThe appellant continued in this office till 25th November '66 when his services\n\nwero dispensed with. with immediate effect on payment of 3 months\n\nsalary in lieu of notice. In his place the Government by its order of the same date appointed temporarily respondent\n\n6-D.\n\nMazumdar, Director of Consumer Goods, West Bengal as Secretary for a period not exceeding 6 months from the date Ql1 which\n\nhe takes charge of the. office. As we have earlier mentioned the initial Act under which his appointment was m, ade was the Act of G 1950.\n\nSubsc:qdiently another Act knoWJll as the West Bengal SecondaryEducation (Temporary Provision) Act 24 of 1954 was\n\npassd hy the Legislature, by which the Board created by the Act of I .;}50 was superseded and its powers were vested in an administrntor appointed by the State Government. It was the administrator who had appointed the petitioner on probation. On the 20th February '63 the West Bengal Board of Secondary Education Act 5 of 1963 (hereinafter called 'the 1963 Act') was passed which came into force on 1-1-1964. Before this Act came into force\n\nlllSWANATH I'. \\\\'LST BENGAL (J11ga11molw11 Reddy, ]. ) 899\n\nccrt•iin regulations were made on 12-12-63 under the Act of 1950, rule ..f of which dealt with the conditions of service which were\n\nsimilar to those in Rule 4 of 1951 regulations made on 19-9-51.\n\nUnder rgulation 4 of 1951 the Board had .. powr to dispense with the services of the Secretary or any officer by giving 3 months notice or on payment to him of 3 months salary in Heu of notice.\n\nAct 22 of 1954 it may be mentioned did not abolish the Board but only aut'J.orised the Administrator to carry on the duties and lunctious vested in the Board so that the appellant when he was appointed on probation by the Administrator was an employee of the Board. The 1963 Act by clause 1 of Sec. 46 repealed both the 1950 Act as well as the tempopary provisions Act 22 of 1954 and by sub-clause ( 2) it provided that \"all Officers and other persons in the employment of the Board of Secondary Education immediately before the commencement of this Act shall until provision is made continue in the service of the Board\". It may here be mentioned that prior to the enforcement of the Act on 1-1-64 the Government had made and published rules under that Act known as the West Bengal Secondary Education (appointment of Secretary) Rules 1963, rule 8 whereof is in the following terms :\n\n\"The State Government shall have the power to dispense with the services of the Secretary on three months' notice or in lieu of such notice on payment of three months' salary and also to .discharge or dismiss the Secretary from service without notice or compensation in the event of misconduct or of a breach of any of tlfe duties attached to the post of Secretary\".\n\nIt is in exercise of powers vested l!nder this Rule that the Governor dispensed with the services of the appellant which is now challenged, The learned Advocate for the appellant contend; F' inter-alia that :-\n\n(i) .the rule under which the appellant's services have been\n\ndispnsed :-Vith hve no application to the case of a person who contmues Ill service under Sec. 46 (2) ( c) of the 1963 Act,\n\n(ii) being an employee of the Board, his services could only be terminated by the Board and not by the State Government, .\n\n(iii) Sec. 46(2)(c) envisages that till some other employment 1s found for all those persons who were in employment of the Board of Secondary Education before the. commencement of the 1963 Act, they cannot be discharged.\n\nF?r an appreciation of these contentions it is necessary to cxamme the relevant provisions of the 1963 Act.\n\nUnder Sec. 2 (_a) the Bard means the West Bengal Board of Secondary Education established under the 1963 Act. Section 3\n\nempowers the State Government as soon as may be after the Act comes into force to establish the Board named the West Bengal Secondary Education Board. The Board shall be a body corporate with perpetual succession and a common seal. Section 4 deals with the composition of the Board. which it may be stated is totally different to that which comprised the Board, under the 1950 Act.\n\nThe appointment of persons in the service of the Board and their condition of service etc. are the subject matter of Section 16, the relevant provisions of which are as follows :-\n\n( 1) The Board shall have a Secretary who shall be appointed by the State Govt.\n\n(2) The Board may appoint such other officers and servants as it considers necessary for carrying out the purposes of this Act. ( 3) The terms and conditions of appointment and the scales of pay and allowances, if any, shall-\n\n(4)\n\n( a) as respect the Secretary 'be such as may be prescribed, and\n\n(b) as respect the other officers and servants be such as may be determined by regulations. ·\n\nSub-sec. ( 1) of Sec. 45 empowers the State Govt. after previous publication, to make rules for carrying out the purposes of this Act and sub-sec. (2 )(f) provides that :\n\n\"In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-\n\n( f) the terms and conditions of appointment, the scale of pay and the rules of discipline relating to the Secretary of the Board.\n\nIt is under the last mentioned provision 45(2) (f) that the rules were made, rule 8 of which we have already extracted. It G will thus be seen that the 1963 Act constituted an entirely new Board of Secondary Education and, after rej}ealing the old Acts it continued the services of the Officers and other person~ in t11~\n\nemploymnt of the Board of Education under the old Act until other provision is made. It may be stated that the power of appointment of a Secretary for the Board under Sec. 16 is not H vested in the Board but in the Govt. as such there can be no validity in the contention of the learned dvocate for th~ appellant that the Govt. has no power to appomt a Secretary m place\n\n\\····\n\n.BISWA'NATH v. WEST BENGAL (Jaganmohan Reddy, J.) 901\n\nof the appellant who according to him still continues as Secretary under the Board. As we read the provisions, we are clear in our minds and it admits of no doubt that the Board bas no power to appoint a Secretary, !lior has the appellant a right to the post as such; AU that the Act pro\\l'ides for is the continuance of the employees of the previous Board till other arrangements are made, namely till a Secretary is appointed by the Govt. In our view the appointment of the new Secretary can be traceable to the powers vested in the Govt. under Sec. 16 irrespective of the power vested under the rules.\n\nThe argument tha't the appeliant being an employee of the Board his services could only be terminal¢ by the Board and not by the Staie Govt. has no validity in that the old rules have been repealed and the new Board has no power to, appoint a Secretary. It has been urged before us that a decision of this Court in State ndents Nos."}}, {"text": "Rajendra Clwwdhary", "label": "LAWYER", "start_char": 2848, "end_char": 2866, "source": "ner", "metadata": {"in_sentence": "K. R. Chaudhuri and K., Rajendra Clwwdhary, for resp<>ndents Nos."}}, {"text": "Santosh Chatterjee", "label": "LAWYER", "start_char": 2903, "end_char": 2921, "source": "ner", "metadata": {"in_sentence": "Santosh Chatterjee, G. S. Chatterjee for Sukumar Basu, for respondent No."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 2923, "end_char": 2939, "source": "ner", "metadata": {"in_sentence": "Santosh Chatterjee, G. S. Chatterjee for Sukumar Basu, for respondent No."}}, {"text": "Sukumar Basu", "label": "LAWYER", "start_char": 2944, "end_char": 2956, "source": "ner", "metadata": {"in_sentence": "Santosh Chatterjee, G. S. Chatterjee for Sukumar Basu, for respondent No."}}, {"text": "P. Jaganmohan Reddy", "label": "JUDGE", "start_char": 3025, "end_char": 3044, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nP. Jaganmohan Reddy, J.-These appeals are by a certificate under Art.", "canonical_name": "P. JAGANMOHAN REDDY, JJ."}}, {"text": "Art. 132(C)", "label": "PROVISION", "start_char": 3090, "end_char": 3101, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3109, "end_char": 3130, "source": "regex", "metadata": {}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3159, "end_char": 3178, "source": "ner", "metadata": {"in_sentence": "132(C) of the Constitution of India against the judgment of the Calcutta High Court, which have by an order of this Court dated 25-8-1969 been consolidated for the purpose of hearing."}}, {"text": "12-7-1952", "label": "DATE", "start_char": 3811, "end_char": 3820, "source": "ner", "metadata": {"in_sentence": "He was promoted as Assistant Secretary on 12-7-1952."}}, {"text": "18-6-56", "label": "DATE", "start_char": 3845, "end_char": 3852, "source": "ner", "metadata": {"in_sentence": "as Deputy Secretary on 18-6-56 and on the 1st/8th August 1962 he was appointed as Secretary on probation and confirmed on 1-8-63 by an order dated the 24th August '63."}}, {"text": "1st/8th August 1962", "label": "DATE", "start_char": 3864, "end_char": 3883, "source": "ner", "metadata": {"in_sentence": "as Deputy Secretary on 18-6-56 and on the 1st/8th August 1962 he was appointed as Secretary on probation and confirmed on 1-8-63 by an order dated the 24th August '63."}}, {"text": "1-8-63", "label": "DATE", "start_char": 3944, "end_char": 3950, "source": "ner", "metadata": {"in_sentence": "as Deputy Secretary on 18-6-56 and on the 1st/8th August 1962 he was appointed as Secretary on probation and confirmed on 1-8-63 by an order dated the 24th August '63."}}, {"text": "Mazumdar", "label": "RESPONDENT", "start_char": 4263, "end_char": 4271, "source": "ner", "metadata": {"in_sentence": "In his place the Government by its order of the same date appointed temporarily respondent\n\n6-D.\n\nMazumdar, Director of Consumer Goods, West Bengal as Secretary for a period not exceeding 6 months from the date Ql1 which\n\nhe takes charge of the."}}, {"text": "West Bengal", "label": "GPE", "start_char": 4301, "end_char": 4312, "source": "ner", "metadata": {"in_sentence": "In his place the Government by its order of the same date appointed temporarily respondent\n\n6-D.\n\nMazumdar, Director of Consumer Goods, West Bengal as Secretary for a period not exceeding 6 months from the date Ql1 which\n\nhe takes charge of the."}}, {"text": "20th February '63", "label": "DATE", "start_char": 4893, "end_char": 4910, "source": "ner", "metadata": {"in_sentence": "On the 20th February '63 the West Bengal Board of Secondary Education Act 5 of 1963 (hereinafter called 'the 1963 Act') was passed which came into force on 1-1-1964."}}, {"text": "1-1-1964", "label": "DATE", "start_char": 5042, "end_char": 5050, "source": "ner", "metadata": {"in_sentence": "On the 20th February '63 the West Bengal Board of Secondary Education Act 5 of 1963 (hereinafter called 'the 1963 Act') was passed which came into force on 1-1-1964."}}, {"text": "12-12-63", "label": "DATE", "start_char": 5180, "end_char": 5188, "source": "ner", "metadata": {"in_sentence": "899\n\nccrt•iin regulations were made on 12-12-63 under the Act of 1950, rule ..f of which dealt with the conditions of service which were\n\nsimilar to those in Rule 4 of 1951 regulations made on 19-9-51."}}, {"text": "clause 1", "label": "PROVISION", "start_char": 5821, "end_char": 5829, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 46", "label": "PROVISION", "start_char": 5833, "end_char": 5840, "source": "regex", "metadata": {"statute": null}}, {"text": "1-1-64", "label": "DATE", "start_char": 6231, "end_char": 6237, "source": "ner", "metadata": {"in_sentence": "It may here be mentioned that prior to the enforcement of the Act on 1-1-64 the Government had made and published rules under that Act known as the West Bengal Secondary Education (appointment of Secretary) Rules 1963, rule 8 whereof is in the following terms :\n\n\"The State Government shall have the power to dispense with the services of the Secretary on three months' notice or in lieu of such notice on payment of three months' salary and also to .discharge or dismiss the Secretary from service without notice or compensation in the event of misconduct or of a breach of any of tlfe duties attached to the post of Secretary\"."}}, {"text": "Sec. 46", "label": "PROVISION", "start_char": 7156, "end_char": 7163, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 46(2)(c)", "label": "PROVISION", "start_char": 7321, "end_char": 7334, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 2", "label": "PROVISION", "start_char": 7652, "end_char": 7658, "source": "regex", "metadata": {"statute": null}}, {"text": "West Bengal Board of Secondary Education", "label": "ORG", "start_char": 7683, "end_char": 7723, "source": "ner", "metadata": {"in_sentence": "2 (_a) the Bard means the West Bengal Board of Secondary Education established under the 1963 Act."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7756, "end_char": 7765, "source": "regex", "metadata": {"statute": null}}, {"text": "West Bengal Secondary Education Board", "label": "ORG", "start_char": 7879, "end_char": 7916, "source": "ner", "metadata": {"in_sentence": "Section 3\n\nempowers the State Government as soon as may be after the Act comes into force to establish the Board named the West Bengal Secondary Education Board."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7999, "end_char": 8008, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 8267, "end_char": 8277, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 45", "label": "PROVISION", "start_char": 8822, "end_char": 8829, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 16", "label": "PROVISION", "start_char": 9751, "end_char": 9758, "source": "regex", "metadata": {"statute": null}}, {"text": "Jaganmohan Reddy", "label": "JUDGE", "start_char": 9991, "end_char": 10007, "source": "ner", "metadata": {"in_sentence": "has no power to appomt a Secretary m place\n\n\\····\n\n.BISWA'NATH v. WEST BENGAL (Jaganmohan Reddy, J.) 901\n\nof the appellant who according to him still continues as Secretary under the Board."}}, {"text": "Sec. 16", "label": "PROVISION", "start_char": 10565, "end_char": 10572, "source": "regex", "metadata": {"statute": null}}, {"text": "That case was under the Assam Elementary Edncation Act 1962", "label": "STATUTE", "start_char": 11051, "end_char": 11110, "source": "regex", "metadata": {}}, {"text": "That Act was repealed by the Assam Elementary Education Act 1962", "label": "STATUTE", "start_char": 11360, "end_char": 11424, "source": "regex", "metadata": {}}, {"text": "Sec. 34(2)", "label": "PROVISION", "start_char": 11659, "end_char": 11669, "source": "regex", "metadata": {"linked_statute_text": "That Act was repealed by the Assam Elementary Education Act 1962", "statute": "That Act was repealed by the Assam Elementary Education Act 1962"}}, {"text": "Sec. 46(2)", "label": "PROVISION", "start_char": 11949, "end_char": 11959, "source": "regex", "metadata": {"linked_statute_text": "That Act was repealed by the Assam Elementary Education Act 1962", "statute": "That Act was repealed by the Assam Elementary Education Act 1962"}}, {"text": "31-3-63", "label": "DATE", "start_char": 12285, "end_char": 12292, "source": "ner", "metadata": {"in_sentence": "What happened in that case was that the Board merely passed a resolution \"that all teachers who are not Matriculates or who have not passed the Teachers test but who are working as Teachers in School shall be discharged with effect from 31-3-63\"."}}, {"text": "Sec. 46(2)(c)", "label": "PROVISION", "start_char": 12910, "end_char": 12923, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_903_907_EN", "year": 1971, "text": "H. L YNGDOH & ORS.\n\nGROML YN L YNGDOH, JUDGE\n\nMarch 2, 1971\n\n[K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.]\n\n-- -\n\nAsmm Fundamental Rules, rr. 9(22), ~6-Age of Superannuation 55 years-Me1nber of Assan1 Judicial Service appointed temporarily as Judge vf Distric~ Council Court of the Autonomous District of United Khasijaintia Hills-Continued in service after superannuation by order of District Council and placed in regular scale-Whether bcco1nes per; nanent\n\nemployee within meaning of r. 9(22).\n\nOn January 26, 1950 the Autonomous District of United Khasi-Jaintia Hills was constituted by virtue of the provisions of cl. 2 of Art. 244 and the Sixth Schedule of the Constitution of India, and the Goveor of Assam was empowered to administer the said Autonomous District. Pursuant thereto the Assam Autonomous District (Constitution of District Councils) Rules, 1961 were enforced as from October 15, 1951. On June 27, 1952 a District Council and an Executive Committee was constituted for the said autonomous District. The District Council was empowered to constitute courts and appoint suitable persons as Presiding Officers. On June 7, 1954 the United Khasi-Jaintia Hills Autonomous District (Administration of Justice) Rules. 1953 were framed by the District Council.\n\nUnder r. 9 a District Council Court was constituted for the Autonomous District. Judges were to be appointed by the Executive Committee with the app'roval of the Governor.\n\nIn the absence of any rules framed by the District Council under r. 15 of the Constitution of District Council Rules, the Assam Fundamental Rules. subsidiary Rules and instructions were applicable to the officers and staff or the District Council.\n\nThe respondent who was an Additional District Judge in the senior Grade of the Assam Judicial Service was appointed with effect from 7-1-1954 temporarily as a Judge of the District Council Court without the approval of the Oovemor.\n\nThe Governor however appointed him also as an Additional District Judge, Lower Assam District.\n\nThe scale of pay was Rs. 750--960-1000. On 16-2-1957 the respondent attained the age of superannuation on his completion of 55 years. Notwithstanding this the District Council continued him in service and by its order dated 22-4-1965 placed him in the regular scale of Rs. 1200--60 (E.B.)--\n\n60-1500 with effect from 1-4-1965. However subsequently the Executive Committee terminated his services with effect from August 31, 1966. The respondent challenged this order by writ petition in the High Court. Thereafter .by special leave the matter came up in appeal before this Court. The question for consideration was whether in view of the definition of a permanent. post under Assam Furrdamental Rule 9(22) as a post 'carrying a defimte scale of pay. sanctioned without limit of time', the respondent '-''as a permanent emp1oyee.\n\n. HELD : The respondent's employment was temporary and was conhnumg as su.ch. ¥erely placing him in a scale of pay which was different to the one m which he was temporarily appointed did not make him a pem1anent employee.\n\nTo become permanent he must be confirmed but that question could ever arise ?ecause under Fundamental Rule 56 which was .1dm1ttedly apphcable to h1!11 the date of his compulsory retirement was the date on which he attamed the age of 55 years.\n\nAfter this he\n\n\ncould bt: retained with the sanction of the Government which adn1iitcdlv A in his cas.e had not been .given.\n\nEven if the validity of his appointmedr by the D1str1ct Council without the sanct_ion of the Governor which \\\\-'as\n\n'~ necessary condition for valid appointment was overlooked he cc:iuld not complain that his termination by the very Council wa; without the Governor's sanction. [906 E-G]\n\nThe argument that the Governor had invested the Respondent with B powers for the. Schedule Districts and lower Assam was unhelpful because\n\nthis was done. m 1954 long prior to his attaining the age of superannuatlon. when without a valid extension of the service he could not continue in service after that date. [906 HJ\n\n. Accordingly the appeal must be allowed and the writ petition .en if the evidence of ithese two witnesses is belived, would have a material bearing on the case \"because if th~ recovery proceedings of the articles said to have been recovered\n\nA from the appellant's possession does not inspire confidenoe and it is not possible to hold beyond reasonable doubt that these were the very articles found missing from the house of the deceased, then it may be extremely difficult to sustain the appellant's conviction on the prosecution evidence.\n\nIn this connection particular importance attach.:s to the ring stated to have been worn by B the deceased because !f that ring is not proved to be the same which is alleged to have beiln worn by the deceased Omwati at the time of her murder then no inference would seem to arise against the appellant.\n\nThe prosecution case against the appellant is mainly sought to be established by the evidence of P.W. 2 and P.W. 10 and by C the evidence relating to the recovery from the appellant of the articles alleged to belong to the deceased supported by the evidence of motive on the part of the appellant for committing this crime and corroborated by the appellant's alleged conduct in try ing to mislead Ram Chandra and the investigating officer and finally by disappearing after the lodging of the F.I.R. The trial D court, as also the High Court, both relied on these four pieces of evidence for convicting the appellant.\n\nTo begin with it is notworthy that Ram Chandra himself does not seem to have thought that the appellant was inimical towards the deceased and he did not suspect the appellant of complicity in the murder. According to his own testimony it was only after Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10) had informed him about what they had seen on the morning of May 29, that he recollected that about five or six months prior to the occurrence there was an altercation between Omwati and the app-::llant's wife.\n\nThis would clearly indicate that the alleged altercation had not left any serious impact on the mind of Ram Chandra and the appellant's admitted presence in the ho~ of Ram Chandra till the lodgingof the F.l.R. indicates jiat relations between Ram Chandra and the appellant were not bpenly hostile or unfriendly.\n\nThe evidence of P.W. 2 shows thatthe appellant and two other persons came out of the appellant's house and entered the house of Ram Chandra on the morning of May 29 and the evidence of P.W. 10 shows that the appellant and' two other persons came out of Ram Chandra's house and entered that of the appe.llant on the same morning a little later. This evidence h-aving been believed b~ the. iv:o courts below may be accepted.\n\nBut so far as the quesl!on of lime when. these two witnesses saw the appellant and two other persons going into and coming out of Ram Chandra's house is concerned they seem to have ttiven the time from their impression Ram Chandra (P.W. 1) doe~ not say that P.W. 2 and P.W. 10 had told him on the morning of May 30 that when they saw the appellant and his two companions on May 29, they had. a Potli with them. It also seems somewhat unbelievabie .that the appellant with his compa!lions should have entered the house .of Ram Chandra with the purpose of committing murder and theft in broad daylight particu Iarly when P.W. 2, a barber who knew him and lives about one furlong away from his house had actually seen him. It is unlikely that the appellant should have failed to notice P .W. 2. It is in the evidence of P.W. 2 that the appellant and his com panions came out of the. _appellant's house and entered that .~~ Ram Chandra when the witness called out the name of Pand1t11 meaning thereby Puttulal Pandit.\n\nAgain, if the appellant and his two companions had committed the. gruesome murder of Omwati and Sualal (Omwati aged 25 years had 4 incised Wounds, 3 in the neck and one in the abdominal cavity and Sualal, 3 years old, had three incised wounds on his neck and one on his right wrist) within half an hour and had also stolen the articles including a ring, a gold kundal, jhumki and silver iori worn by the deceased on her person and also broken open a box and removed therefrom a shawl and Rs. 200/ • within a short span of half an hour as alleged by the prosecution, then it is somewhat surprising that thdr movements and behaviour should not have reflected any abnormality. At least Nathu Lal does not seem to have noticed any abnormal behaviour which :would excite his suspicion.\n\nNow, the appellant and his cc;>mpanions were seen by P.W. 2 and P.W. 10, broadly speaking, between 10 and 11 in the morning.\n\nWe would give these two witness.es a margin for their inaccuracy in regard to the time as deposed by them in the witness box.\n\nP.W. 2, it may be recalled, gives the tin1e as between 10 and 10.30 a.m. when he. saw the appellant and his companions and P.W. 10 gives the time between 10.30 and 11 a.m. when he saw them coming out of the house of P.W. 1.\n\nThe F.l.R. was lodged at 12.40 p.m. which means that Ram Chandra (P.W. ,1) must have arrived at his house a little earlier. The appellant, according to P.W. l, had been with him when the F.I. Report was got written at his house and he went along with P.W. 1 for lodging th~ said report.\n\nTh.e behaviour and conduct of the appellant, judged by normal standards, is not suggestive of his involvement in such heinous crime, unless he was an experienced criminal (of which there is no suggestion) with extraordinary balance of mind and a disciplined control over his senses and faculti.es.\n\nIn the absence of any direct evidence this consideration cannot be completely ruled out as irrelevant when weighing the circumstantial evidence in a case like the present.\n\nThis takes us to the recovery of the alleged stolen articles from the appellant and their identification.\n\nThe main evidence\n\nF ..\n\n' I'\n\n• •\n\nof recovery consists of the statements of Head Constable Ahibaran Singh (P.W. 5) and of Nathu (P.W. 10) and the recovery memo Ex. Ka-1 dated June 1, 1964.\n\nP.W. 5 has deposed in his examination-in-chief that he did not know the appellant.\n\nAccording to him, an approver had informed him at about 7 p.m. on June l, that the appellant would be coming to his house that evening to meet his children. At about 7 .30 p.m., P.W. 5 along with Bankey, Nathu, Di!asa and two constables sat near Bankey's house waiting for the appellant.\n\nIt was the approver who pointed out the appellant, whereupon, on being interrogated by the witness, the appellant tried to run away. He was, however, apprehended.\n\nIn the course of this process !h¢ appellant received some injuries. .Now, the person described as the approver has not been produced as a witness and indeed even his identity has not been disc!osea.\n\nIt is noteworthy that there is no mention of any approver anywhere else on the record.\n\nWhat is still more intriguing is that even though Nathu was not previously known to the witness, within half an hour of the information about the appellant's expected visit to his house P.W. 5 managed to collect Nathu and two other persons for arresting him.\n\nThe statement made by P .W. 5 in this connection makes interesting reading.\n\nHe said:\n\n\"I received information through an approver at about 7 P.M. that he shall come home to meet his children from the jungle of Imadpur by night. At this I sat near th~ house of Bankey by the side of the passage, alongwith Bankey, Nathu, Dilasa and two constables.\n\nMatru, accused present in court came from the side qf Imadpur at about 7.30 O'clock. The\n\napprover pointed him out.\n\nOn being interrogated by me, he took to his heels. I caught him after surrounding and causing slight injuries to him.\n\nWhen I duly searched his person in presence of the witnesses. the case. Ex .. 3, was recovere.d from the right phant of the clho!t which he was. wearing. On opening it, the spectacles, Ex. 2 and nng Ex. 1 were found in it. I prepared their memo, Ex. Ka-! correctly at that spot immediately and obtained the signatures and thumb impressions of the witnesses over it. I sealed the articles there after sewing them in cloth . . . . . . Before the arrest of Matru. I and the witnesses had searched each other's persons.\"\n\nIn cross-examination it was elicited from him:\n\n\"The approver had not told me that he wa ing articles also with him I took the wi'! s carryf • nesses or\n\nhelp. I Oid not recognise him also. Irnadpur might be about half a mile from the place where I arrested him. . I did not make peop1~ sit on any other way. I sat on that very way.\n\nI took. Nathu with me while he was coming out of a temple in Mauza J atpura. I took Bankey from Bazar Kalan and Dilasa from Mauza J atpuca.\n\nI had not told the witnesses that there was possibility of articles being recovered from him.\n\nI did not know Nathu from befor-~. I might have seen him.\n\nI did not know that his name was Nathu.\n\nMatru was at a distance of about .ten paces towards the South of me when I saw him for the first time. He was coming from the western side.\"\n\nNow, considering the fact that it was only at about 7 p.m. that ihe approver had informed P.W. 5 that the appellant was coming to his house and at 7 .30 p.m. the arrest was actually made, it seems to be somewhat surprising that 11<~ should have within that short time collected Nathu, whom he did not know before, Bankey and Dilasa from various places and come to the spot in time for effecting the appellant's arrest and search.\n\nBankey and Dilasa have also not been produced as witnesses.\n\nNathu, who has appeared as P .W. 10, has stated in his examination-in-chief about :the arrest and search of th<~ appellant in the following words:\n\n\"On the fourth day of murder, i.e., after a gap of two days at abcut 7 p.m. the Head constable took me, Bankey and others with him.\n\nOne person was keeping his face covered. He asked me to accompany him saying that he had to arrest a man.\n\nHe. had taken Dilasa as we!l.\n\nWe sat in mohalla Tikuriya near the house of Bankey. We searched the persons of the constables and Head Constable.\n\nWe searched the persons of us all. A little later, Matru accused, present in court came from the western side.\n\nTh~ person who was with us poin\\ed out that he was Matru. Matru started running away. At this the Head constable and the constables caug!Jrt hold of him. They gave him one or two danda blows while trying to catch him. When his person was searched, a case for keeping spectacles containing a pair of spectacles and a gold ring, ws recovered from the right phant of Matru accused.\n\nAll these things were sewn in cloth and sealed on the spot.\n\nMemo was prepared there on the spot.\n\nIt was read out.\n\nMy thumb impression was also obtained. (Ex.\n\nKa-1 read over) Yes.\n\nThese very contents were read out (Shown Ex. 1-3 says) Now, I shall not be able to\n\nD •\n\nff ...\n\n.~·\n\n.... t\n\nA identify the articles as to whether they are the same or some other. It happened long ago.\"\n\nP.W. 16, Jamuna Prasad, retired police constable is another witness who claims to have been present at the time when Matru was arrested. He was at that time posted as a constable at P. S.\n\nShamsabad. In examination-in-chief he said nothing about the appellant's arrest or the Jecovery of the articles from him.\n\nIt was only in cross-examination that he deposed that he was with P.W. 5 at the time of the appellant's arrest and after arresting him the party retnmed to the police station at about 8 or 8.30 p.m.\n\nHis version is:-\n\n\"Diwanji (presumably referring to P.W. 5) had a talk with one person in my presence. After that he asked me to go along with him. So I accompanied him.\n\nWe met Bankey witness in Kalan Bazar. I cannot tell whether Bankey has got some shop or not or if he bas got it, where is it? We met Nathu near the Maria.\n\nAfter arresting Matroo, we returned to the Police\n\nStation at about 8 or 8.30 O'clock in the evening.\"\n\nHe has, however, given no details of the articles recovered nor about the appellant's search. The testimony of these witnesses is far from impressive and the story of recovery is difficult to accept on its face value. The memo of recovery is Ex. K~-1. It purports to have been prepared at 7.30 p.m. on June 1, 1964.\n\nAccording to it on Matru's search, a spectacle case containing \"a spectacle and a gold ring as per description given below corresponding to the case as offence no. 67 under sections 3021380, I.P .C. was recovered from the riht side of the phent of his\n\ndhoti.\" The description of the articles recovered, according to this memo, is :\n\n1. One spectacle case of black colour, having dark blue colour inside;\n\n2. One spectacle, having brown frame, white glasses, not circular, half frame;\n\n3. One gold ring, longitudinal dsign, having green enamel with lengthwise, with red and blue flowery design on the enamel. The ring is somewhat bent.\n\nIt is signed by Head Constable, Ahibaran Singh and attested by Bankey, Dilasa and Nathu. JV'does not mention the place where the search was effected though the memo is stated to have been prepared in a shop withou! giving any particulars of th~ shop.\n\nThis memo does not materially add to the oral testimony of recovery. This is all the evidence of recovery of the aricles. We\n\ndo not find it safe on this evidence to hold that the articles men• tioned in Ex. Ka-1 were recovered from the appellan• s puss.:ssion at the time of his arrest on June 1, 1964 at 7.30 p.m.\n\nNeither P.W. 5, the investigating H. C. nor Nathu, (P.W. 10) can be considered to be witnesses on whom implicit reliance can be placed without proper corroboration from a more disinterested and dependable source.\n\nHaving not been impressed by the evideqce of recovery, the identification test of the articles can be of little help to the prosecution, though even on that point the prosecution evidence is equally uninspiring.\n\nIdentification tests, it may be pointed out, do not constitute substantive evidence.\n\nSuch tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. Now, althqugh tlie articles are stated to have been recoyered on June l, the test identificatiqn was held by Shri Jwala Prasad Srivastava, Magistrate, on October 23, 1964. The reason for this delay as suggested is that similar articles had to be procured for mixing up with the articles recovered.\n\nBut the manner in which this delayed identification has been held in this case is highly unsatisfactory.\n\nJwala Prasad Srivastava, Magistrate, First Class, who had conducted the test identification appeared as P. W. 21, in his examination-in-chief he said:\n\n\"Even before the dates for identification proceedings were fixed but the identificaton could not be conducted because similar articles had not been received.\n\nThe articles were opened and shown to the contractor once so that correct articles could be brought. On 13-7-64 he made an application that the articles should be shown to him. The articles must have been shown to him within some days after that. The date must have been mentioned there but that order sheet is missing. Even then I took a precautien that none except the Contracior and the court moharrir should see the articles.\n\nJust after showing the arles to the contractor, I got the same sealed in the court room in my presence.\"\n\nJn cross-examination he said :\n\n\"The khol (case) Ex. 3 was old. Out of the khols which were mixed, one or two were perhaps new. That too was similar (dissimilar ?) but the dissimilarity was not so much, that I ought to have noted it ( hown paper No. 491147 of S.C. File) Yes, this note is mine.\n\n'The case of the spectacle is old one whereas the mixed cases were new' (marked Ex. Kha 19).\n\nThe counsel for the accused persons moved an application\n\n• A\n\non the same day after the identification proceedings.\n\nI had read it. The allegations regarding the ring, were not correct. So I did not note them in my order. The order sheet of some particular dates regarding the iden tification proceedings, were preserved ? The same has been found.\n\nThe order sheet of two dates has been found.\n\nOut of them, one bears the signature of my predecessor.\n\nI recognise the same. (marked Ex.\n\nKha 21). The other one does not bear the signature of any one. I do not remember exactly who presented the application Ex. Kha 11.\n\nPerhaps it was moved but the contractor's man. That man used to come frequently. Marginal note on Ex. Ka-11 shown.\n\nThat encircled in red pencil and (marked X) I do not recognise the same.\n\nI cannot tell who made this entry and when. At present I cannot tell on which date the articles were shown. I did not find any such entry in the record which could tell on which date the articles were shown to the contractor. Only the word \"allowed\"\n\nis written with the date 13-7-64.\" ..... .\n\n. . . . . . Only one man of the contractor used to bring the articles before me.\n\nI do not remember his name. I can only recognise him by face.\n\nIt is quite wrong that on 1-9-64 these articles were brought to the court and were shown to the witnesses.\n\nI do not remember orally on which date these articles were taken out from the malkhana. It is wrong to say that all the articles which were to be mixed, were dissimilar.\n\nOnly the cases of the spectacles were somewhat new.\"\n\nThe statement of this witness reveals the unsatisfactory manner of dealing with 1the test identification. We are unable to place any reliance on these proceedings.\n\nThis takes us to the question of motive. We have already noticed that the altercation between the deceased Omwati and G the apoellant's wife does not seem to have been taken seriously by' either party.\n\nThe proceedings under s. 107, Cr. P. C. to which a reference has been made were started by Ram Chandra against the appellant after the occurrence in question and, therefore, they are not relevant on the question of motive for the present offence of murder.\n\nThe appellant's counsel questioned the admissibility of Ex. Ka-4, the letter said to have been written H by the deceased to her father, on the ground that it did not fall \"\" within the purview of s. 32, Indian Evidence Act. The objection appears prima facie on plain reading of the section to possess I 5-L ti OOSup CI/71\n\n928 SUPREME COURT REPOJl.TS\n\n(1971] 3 S.C.R.\n\nmerit. But even if this letter were to be held admissible we are A not satisfied that the motive which this letter suggests is of strong and impelling nature so as to induce the murder of Omwati and her infant child.\n\nThe motive suggested by this letter, coupled with the testimony of P.W. 2 and P.W. 10, may at best give rise only to a suspicion against the appellant; but suspicion however strong cannot take the place of roof.\n\nThe appellant's conduct in absconding was also relied upon.\n\nNow, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind.\n\nEven an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-preservation.\n\nThe act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case.\n\nNormally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.\n\nIn the present case the appellant was with Ram Chandra till the F .I.R. was lodged. If thereafter he felt that he was being wrong! y suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.\n\nOne other circumstance which on the facts of this case also deserves notice is the non-recovery of the weapon of offence and the fact that no stains of blood were noticed by any one on the appellant's clothes even fhough he was with Ram Chandra right upto the loding of the F.I.R. and even accompained him for that purpose. The courts below seem to us to have failed to take into consideration all the relevant facts and circumstances of the case.\n\nAs proof of the appellant's guilt depended solely on circumstantial evidence it was incumbent on the courts below . to properly consider and scrutinise all the material factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant's guilt. In our view, the cumulative effect of the circumstantial evidence in this case falls far short of the test required for sustaining conviction.\n\nWe are, therefore, constrained to allow this appeal, set aside the appellant's conviction and acquit him.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 93, "entities": [{"text": "MATRU alias GIRISH CHANDRA", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "MATRU alias GIRISH CHANDRA", "offset_not_found": false}}, {"text": "STATE OF UTTAR PRADESH", "label": "RESPONDENT", "start_char": 31, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH", "offset_not_found": false}}, {"text": "March 3, 1971", "label": "DATE", "start_char": 55, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "MATRU alias GIRISH CHANDRA v.\n\nSTATE OF UTTAR PRADESH\n\nMarch 3, 1971\n\n[P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]"}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 71, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY*", "offset_not_found": false}}, {"text": "I. D. DuA, JJ.", "label": "JUDGE", "start_char": 95, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 2414, "end_char": 2422, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 3569, "end_char": 3574, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 3576, "end_char": 3595, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 6306, "end_char": 6326, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave ftom the judgment and order dated February 8, 1968 of the Allahabad High Court in Criminal Appeal No."}}, {"text": "A. S. R. Chari", "label": "LAWYER", "start_char": 6385, "end_char": 6399, "source": "ner", "metadata": {"in_sentence": "-- ....... ----\n\nA. S. R. Chari, J.P. Goyal and G. S. Chatterjee, for the A appellant."}}, {"text": "J.P. Goyal", "label": "LAWYER", "start_char": 6401, "end_char": 6411, "source": "ner", "metadata": {"in_sentence": "-- ....... ----\n\nA. S. R. Chari, J.P. Goyal and G. S. Chatterjee, for the A appellant."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 6416, "end_char": 6432, "source": "ner", "metadata": {"in_sentence": "-- ....... ----\n\nA. S. R. Chari, J.P. Goyal and G. S. Chatterjee, for the A appellant."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 6459, "end_char": 6466, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the respondent."}}, {"text": "Dua", "label": "JUDGE", "start_char": 6533, "end_char": 6536, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDua, J.\n\nIn this appeal by special leave the appellant Matru al(as Girish Chandra chal:enges his co, nviction under s. 302 read\n\nwith s. 34, I.P.C. and under s. 382, I.P.C.\n\nFor the former offence he was sentenced to imprisonment for 'life and for the latter to rigorous imprisomnent for four years."}}, {"text": "Matru", "label": "PETITIONER", "start_char": 6588, "end_char": 6593, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDua, J.\n\nIn this appeal by special leave the appellant Matru al(as Girish Chandra chal:enges his co, nviction under s. 302 read\n\nwith s. 34, I.P.C. and under s. 382, I.P.C.\n\nFor the former offence he was sentenced to imprisonment for 'life and for the latter to rigorous imprisomnent for four years.", "canonical_name": "Matroo"}}, {"text": "Girish Chandra chal", "label": "LAWYER", "start_char": 6600, "end_char": 6619, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDua, J.\n\nIn this appeal by special leave the appellant Matru al(as Girish Chandra chal:enges his co, nviction under s. 302 read\n\nwith s. 34, I.P.C. and under s. 382, I.P.C.\n\nFor the former offence he was sentenced to imprisonment for 'life and for the latter to rigorous imprisomnent for four years."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 6649, "end_char": 6655, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 6667, "end_char": 6672, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6674, "end_char": 6679, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 382", "label": "PROVISION", "start_char": 6691, "end_char": 6697, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6699, "end_char": 6704, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mohar Singh", "label": "OTHER_PERSON", "start_char": 6915, "end_char": 6926, "source": "ner", "metadata": {"in_sentence": "The appellant, along with Mohar Singh and Saheb Singh were committed to the court of Sessions for trial for offences under ss."}}, {"text": "Saheb Singh", "label": "OTHER_PERSON", "start_char": 6931, "end_char": 6942, "source": "ner", "metadata": {"in_sentence": "The appellant, along with Mohar Singh and Saheb Singh were committed to the court of Sessions for trial for offences under ss."}}, {"text": "ss. 302", "label": "PROVISION", "start_char": 7012, "end_char": 7019, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Omwati", "label": "OTHER_PERSON", "start_char": 7055, "end_char": 7061, "source": "ner", "metadata": {"in_sentence": "Omwati, wife of Ram Chander ( P. W. 1 ) and of their three years old son Sua Lal and under s. 382, I.P.C. for com.nitting theft of cash, ornaments and ."}}, {"text": "Ram Chander", "label": "WITNESS", "start_char": 7071, "end_char": 7082, "source": "ner", "metadata": {"in_sentence": "Omwati, wife of Ram Chander ( P. W. 1 ) and of their three years old son Sua Lal and under s. 382, I.P.C. for com.nitting theft of cash, ornaments and ."}}, {"text": "Sua Lal", "label": "OTHER_PERSON", "start_char": 7128, "end_char": 7135, "source": "ner", "metadata": {"in_sentence": "Omwati, wife of Ram Chander ( P. W. 1 ) and of their three years old son Sua Lal and under s. 382, I.P.C. for com.nitting theft of cash, ornaments and .", "canonical_name": "Sua Lal"}}, {"text": "s. 382", "label": "PROVISION", "start_char": 7146, "end_char": 7152, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7154, "end_char": 7159, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "May 29, 1964", "label": "DATE", "start_char": 7306, "end_char": 7318, "source": "ner", "metadata": {"in_sentence": "The offences were alleged to have been committed on May 29, 1964 between 10 and 11 a.m. in the township of Shamsabad."}}, {"text": "Shamsabad", "label": "GPE", "start_char": 7361, "end_char": 7370, "source": "ner", "metadata": {"in_sentence": "The offences were alleged to have been committed on May 29, 1964 between 10 and 11 a.m. in the township of Shamsabad."}}, {"text": "Mohalla Chaukhanda", "label": "GPE", "start_char": 7446, "end_char": 7464, "source": "ner", "metadata": {"in_sentence": "The appellant a; nd the deceased were admittedly next door neighbours in Mohalla Chaukhanda at the relevant time."}}, {"text": "Ram Chandra", "label": "OTHER_PERSON", "start_char": 7487, "end_char": 7498, "source": "ner", "metadata": {"in_sentence": "Ram Chandra had two sons, the elder onei Ramji being six years old.", "canonical_name": "Ram Chandra Gupta"}}, {"text": "Ramji", "label": "OTHER_PERSON", "start_char": 7528, "end_char": 7533, "source": "ner", "metadata": {"in_sentence": "Ram Chandra had two sons, the elder onei Ramji being six years old."}}, {"text": "Ram Chandr~", "label": "OTHER_PERSON", "start_char": 8912, "end_char": 8923, "source": "ner", "metadata": {"in_sentence": "Matru, appllant, who was the next door neighbour came to Ram Chandr~'s houe bfori: the first information report was lodged and remamed with him !", "canonical_name": "Ram Chandra Gupta"}}, {"text": "Chhotey Lal", "label": "OTHER_PERSON", "start_char": 9232, "end_char": 9243, "source": "ner", "metadata": {"in_sentence": "Next morning it appears Chhotey Lal (P.W. 2) and Nathu Lal\n\n(P.W. 10) went to see Ram Chandra between 6 and 7 a.m.\n\nChhotey Lal informed him that he (Chhotey Lal) had seen Matru and two unknown persons entering Ram Chandra's house at about 10 or 10.30 a.m. on the previous day and Nathu Lal gave him the information that at about 11 a.m. on the day of the occurrence he had seen Matru and two other persons coming out of his house."}}, {"text": "Nathu Lal", "label": "OTHER_PERSON", "start_char": 9257, "end_char": 9266, "source": "ner", "metadata": {"in_sentence": "Next morning it appears Chhotey Lal (P.W. 2) and Nathu Lal\n\n(P.W. 10) went to see Ram Chandra between 6 and 7 a.m.\n\nChhotey Lal informed him that he (Chhotey Lal) had seen Matru and two unknown persons entering Ram Chandra's house at about 10 or 10.30 a.m. on the previous day and Nathu Lal gave him the information that at about 11 a.m. on the day of the occurrence he had seen Matru and two other persons coming out of his house.", "canonical_name": "Nathu Lal"}}, {"text": "Matru", "label": "PETITIONER", "start_char": 9380, "end_char": 9385, "source": "ner", "metadata": {"in_sentence": "Next morning it appears Chhotey Lal (P.W. 2) and Nathu Lal\n\n(P.W. 10) went to see Ram Chandra between 6 and 7 a.m.\n\nChhotey Lal informed him that he (Chhotey Lal) had seen Matru and two unknown persons entering Ram Chandra's house at about 10 or 10.30 a.m. on the previous day and Nathu Lal gave him the information that at about 11 a.m. on the day of the occurrence he had seen Matru and two other persons coming out of his house.", "canonical_name": "Matroo"}}, {"text": "Matro", "label": "PETITIONER", "start_char": 11153, "end_char": 11158, "source": "ner", "metadata": {"in_sentence": "On receiving in formation about Matro and his two companions going into his house and coming out a short while later round about the time of the occurrence, Ram Chandra informed the investigating officer what he had been told by Chhotey Lal and Nathu Lal.", "canonical_name": "Matroo"}}, {"text": "September 13, 1964", "label": "DATE", "start_char": 12015, "end_char": 12033, "source": "ner", "metadata": {"in_sentence": "But Mohar Singh could not be arrested till September 13, 1964."}}, {"text": "Darbarilal", "label": "WITNESS", "start_char": 12132, "end_char": 12142, "source": "ner", "metadata": {"in_sentence": "When arrested, he offered to recover a shawl, one of the stolen properties, which he had sold to Darbarilal (P. W. 17) for Rs."}}, {"text": "Darbarilal", "label": "OTHER_PERSON", "start_char": 12235, "end_char": 12245, "source": "ner", "metadata": {"in_sentence": "The shawl was accordingly recovered at Mohar Singh's instance from Darbarilal."}}, {"text": "s. 382", "label": "PROVISION", "start_char": 12378, "end_char": 12384, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 12386, "end_char": 12391, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 382", "label": "PROVISION", "start_char": 12534, "end_char": 12540, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 12542, "end_char": 12547, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 12652, "end_char": 12658, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 12664, "end_char": 12669, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 382", "label": "PROVISION", "start_char": 12700, "end_char": 12706, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 12708, "end_char": 12713, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 411", "label": "PROVISION", "start_char": 12761, "end_char": 12767, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 12769, "end_char": 12774, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Matru", "label": "WITNESS", "start_char": 13204, "end_char": 13209, "source": "ner", "metadata": {"in_sentence": "That Court came to the conclusion that Matru had a motive to commit thtcrime and that Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10) were reliable witnesses and."}}, {"text": "Ram Chandra", "label": "WITNESS", "start_char": 13413, "end_char": 13424, "source": "ner", "metadata": {"in_sentence": "The statement of Ram Chandra (P.W. 1), husband of the .deceased, and his conduct throughout also appeared to be quite straingtforward."}}, {"text": "May 1, 1968", "label": "DATE", "start_char": 15040, "end_char": 15051, "source": "ner", "metadata": {"in_sentence": "This ground was not included in the original memorandum of appeal dated May 1, 1968 presented in this Court, but permission to raise this ground was sought by means of an application dated July 25, 1968 which was allowed by this Court w:nile granting special leave."}}, {"text": "July 25, 1968", "label": "DATE", "start_char": 15157, "end_char": 15170, "source": "ner", "metadata": {"in_sentence": "This ground was not included in the original memorandum of appeal dated May 1, 1968 presented in this Court, but permission to raise this ground was sought by means of an application dated July 25, 1968 which was allowed by this Court w:nile granting special leave."}}, {"text": "s. 32", "label": "PROVISION", "start_char": 15541, "end_char": 15546, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 15548, "end_char": 15567, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Chari", "label": "OTHER_PERSON", "start_char": 15633, "end_char": 15638, "source": "ner", "metadata": {"in_sentence": "Shri Chari also submitted that the other two co-accused having been acquitted, s. 34, I.P .C. became inapplicable to the case of the appellant and his convic tion under s. 302 read with s. 34, I.P .C. must be held to be con trary to law."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15707, "end_char": 15712, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 15797, "end_char": 15803, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15814, "end_char": 15819, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 16469, "end_char": 16477, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 16990, "end_char": 16996, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 17007, "end_char": 17012, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Chandra Gupta", "label": "OTHER_PERSON", "start_char": 18051, "end_char": 18068, "source": "ner", "metadata": {"in_sentence": "Ram Chandra Gupta, the husband of Omwati had no reason to suspect Matru, appellant, (his neighbour) of • this crime.", "canonical_name": "Ram Chandra Gupta"}}, {"text": "s. 162", "label": "PROVISION", "start_char": 19051, "end_char": 19057, "source": "regex", "metadata": {"statute": null}}, {"text": "Ralll Chandra", "label": "OTHER_PERSON", "start_char": 19383, "end_char": 19396, "source": "ner", "metadata": {"in_sentence": "R. Suspicion fell on the appellant only when Chhotey Lal, barber (P.W. 2) and Nathu Lal (P.W. 10) saw Ralll Chandra on the following morning (May 30, 1964) and inforn1ed him of what they had separately seen on the morning of the 29th at about the time of the alleged murder.", "canonical_name": "Ram Chandra Gupta"}}, {"text": "May 30, 1964", "label": "DATE", "start_char": 19423, "end_char": 19435, "source": "ner", "metadata": {"in_sentence": "R. Suspicion fell on the appellant only when Chhotey Lal, barber (P.W. 2) and Nathu Lal (P.W. 10) saw Ralll Chandra on the following morning (May 30, 1964) and inforn1ed him of what they had separately seen on the morning of the 29th at about the time of the alleged murder."}}, {"text": "Puttulal Pandit", "label": "OTHER_PERSON", "start_char": 23450, "end_char": 23465, "source": "ner", "metadata": {"in_sentence": "appellant's house and entered that .~~ Ram Chandra when the witness called out the name of Pand1t11 meaning thereby Puttulal Pandit."}}, {"text": "Sualal", "label": "OTHER_PERSON", "start_char": 23564, "end_char": 23570, "source": "ner", "metadata": {"in_sentence": "gruesome murder of Omwati and Sualal (Omwati aged 25 years had 4 incised Wounds, 3 in the neck and one in the abdominal cavity and Sualal, 3 years old, had three incised wounds on his neck and one on his right wrist) within half an hour and had also stolen the articles including a ring, a gold kundal, jhumki and silver iori worn by the deceased on her person and also broken open a box and removed therefrom a shawl and Rs.", "canonical_name": "Sua Lal"}}, {"text": "Ahibaran Singh", "label": "WITNESS", "start_char": 25688, "end_char": 25702, "source": "ner", "metadata": {"in_sentence": "The main evidence\n\nF ..\n\n' I'\n\n• •\n\nof recovery consists of the statements of Head Constable Ahibaran Singh (P.W. 5) and of Nathu (P.W. 10) and the recovery memo Ex."}}, {"text": "Nathu", "label": "WITNESS", "start_char": 25719, "end_char": 25724, "source": "ner", "metadata": {"in_sentence": "The main evidence\n\nF ..\n\n' I'\n\n• •\n\nof recovery consists of the statements of Head Constable Ahibaran Singh (P.W. 5) and of Nathu (P.W. 10) and the recovery memo Ex."}}, {"text": "Bankey", "label": "OTHER_PERSON", "start_char": 26067, "end_char": 26073, "source": "ner", "metadata": {"in_sentence": "At about 7 .30 p.m., P.W. 5 along with Bankey, Nathu, Di!asa and two constables sat near Bankey's house waiting for the appellant."}}, {"text": "Nathu", "label": "OTHER_PERSON", "start_char": 26075, "end_char": 26080, "source": "ner", "metadata": {"in_sentence": "At about 7 .30 p.m., P.W. 5 along with Bankey, Nathu, Di!asa and two constables sat near Bankey's house waiting for the appellant.", "canonical_name": "Nathu Lal"}}, {"text": "Di!asa", "label": "OTHER_PERSON", "start_char": 26082, "end_char": 26088, "source": "ner", "metadata": {"in_sentence": "At about 7 .30 p.m., P.W. 5 along with Bankey, Nathu, Di!asa and two constables sat near Bankey's house waiting for the appellant.", "canonical_name": "Di!asa"}}, {"text": "Imadpur", "label": "GPE", "start_char": 27083, "end_char": 27090, "source": "ner", "metadata": {"in_sentence": "He said:\n\n\"I received information through an approver at about 7 P.M. that he shall come home to meet his children from the jungle of Imadpur by night."}}, {"text": "Dilasa", "label": "OTHER_PERSON", "start_char": 27193, "end_char": 27199, "source": "ner", "metadata": {"in_sentence": "At this I sat near th~ house of Bankey by the side of the passage, alongwith Bankey, Nathu, Dilasa and two constables.", "canonical_name": "Di!asa"}}, {"text": "Irnadpur", "label": "GPE", "start_char": 28165, "end_char": 28173, "source": "ner", "metadata": {"in_sentence": "Irnadpur might be about half a mile from the place where I arrested him. ."}}, {"text": "Dilasa", "label": "WITNESS", "start_char": 29229, "end_char": 29235, "source": "ner", "metadata": {"in_sentence": "Bankey and Dilasa have also not been produced as witnesses."}}, {"text": "Jamuna Prasad", "label": "WITNESS", "start_char": 30704, "end_char": 30717, "source": "ner", "metadata": {"in_sentence": "P.W. 16, Jamuna Prasad, retired police constable is another witness who claims to have been present at the time when Matru was arrested."}}, {"text": "Diwanji", "label": "WITNESS", "start_char": 31226, "end_char": 31233, "source": "ner", "metadata": {"in_sentence": "It was only in cross-examination that he deposed that he was with P.W. 5 at the time of the appellant's arrest and after arresting him the party retnmed to the police station at about 8 or 8.30 p.m.\n\nHis version is:-\n\n\"Diwanji (presumably referring to P.W. 5) had a talk with one person in my presence."}}, {"text": "Matroo", "label": "PETITIONER", "start_char": 31550, "end_char": 31556, "source": "ner", "metadata": {"in_sentence": "After arresting Matroo, we returned to the Police\n\nStation at about 8 or 8.30 O'clock in the evening.\"", "canonical_name": "Matroo"}}, {"text": "June 1, 1964", "label": "DATE", "start_char": 31940, "end_char": 31952, "source": "ner", "metadata": {"in_sentence": "It purports to have been prepared at 7.30 p.m. on June 1, 1964."}}, {"text": "sections 3021380", "label": "PROVISION", "start_char": 32128, "end_char": 32144, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahibaran Singh", "label": "OTHER_PERSON", "start_char": 32624, "end_char": 32638, "source": "ner", "metadata": {"in_sentence": "It is signed by Head Constable, Ahibaran Singh and attested by Bankey, Dilasa and Nathu."}}, {"text": "Jwala Prasad Srivastava", "label": "JUDGE", "start_char": 33979, "end_char": 34002, "source": "ner", "metadata": {"in_sentence": "Now, althqugh tlie articles are stated to have been recoyered on June l, the test identificatiqn was held by Shri Jwala Prasad Srivastava, Magistrate, on October 23, 1964."}}, {"text": "October 23, 1964", "label": "DATE", "start_char": 34019, "end_char": 34035, "source": "ner", "metadata": {"in_sentence": "Now, althqugh tlie articles are stated to have been recoyered on June l, the test identificatiqn was held by Shri Jwala Prasad Srivastava, Magistrate, on October 23, 1964."}}, {"text": "13-7-64", "label": "DATE", "start_char": 34685, "end_char": 34692, "source": "ner", "metadata": {"in_sentence": "On 13-7-64 he made an application that the articles should be shown to him."}}, {"text": "1-9-64", "label": "DATE", "start_char": 36784, "end_char": 36790, "source": "ner", "metadata": {"in_sentence": "It is quite wrong that on 1-9-64 these articles were brought to the court and were shown to the witnesses."}}, {"text": "s. 107", "label": "PROVISION", "start_char": 37481, "end_char": 37487, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 37913, "end_char": 37918, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 37920, "end_char": 37939, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]} {"document_id": "1971_3_929_941_EN", "year": 1971, "text": "MOHAN LAL\n\nANANDIBAI & ORS.\n\nMarch 3, 1971\n\n[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.]\n\nPractice and Procedure-Plea not raised in pleadings or issues or evidence-If could be allowed tp be raised in argumenrs-Amendmenl of pleadings-When may be permitted.\n\nThe appellant, who was the mortgagee purchased under two sale deeds dated 13th May, 1951 the mortgaged property in discharge of the mortgage.\n\nThe respondents, who were the daughters of the original owner filed a suit claiming title to the property under gift deeds executed by their mother with respect to a share, (which she got under a sale deed from her husband) and by their father on 2nd May 1951, in respect of the entire property. and alleging that the sale deeds in favour Of the appellant were collusive. The trial court held that the gift deed executed by the mother was valid but that the gift deed executed by the father was fraudulent and not binding on the appellant. On appeal, the first appellate court held that both the gift deeds were invalid. It held that the mother had lost her right to her share, that the gift deed executed by the father was antedated having been in fact executed after 13th May, 1951, and that it was intended to .llefeat the sale in favour of the appellant. It also held that a judgment in another matter inter parties, delivered during the pendency of the appeal, operated as res judiccta. It held that the gift deed by the father was antedated on the grounds. (i) it was belatedly registered on 23rd August 1951 and (ii) the register of the petition-writer who wrote the gift deed was not produced thus raising a presumption aga:nst the respondents.\n\nIn secon, i appeal. the High Court held that the lower courts erred in deciding the case on the grounds of fraud or antedating when no such case was put forward in the pleadings, that on the question of res judicata there was not enough material, and that the case should be remanded permitting the parties to make amendments in their pleadings but only in respect of th• plea of res judicata.\n\nIn appeal to this Court it was contended that : (I) the High Court was not justified in setting aside the findings of the first appellate court that the gift deed executed by the father was fraudulent and ante-dated,\n\n(2) the appellant should have been given an opportunity to amend the written statement so as to include pleas in respect of the fraudulent nature and antedating; and ( 3) the High Court in fact had set aside all the find· ings and therefore its order permitted the appellants to raise new ole\"' by amending the pleadings.\n\nHELD : (I) (a) The pleadings in the written statement did not indicate that the appellant put forward the case that tl'#gift deed was executd by the father after May 13, 1951 and that it was ante-dated. Not only ws there no substance of such pleas there was not even a hint of such obje¢··\n\ntions in the pleadings, and even the facts necessary for determining the H questions were not before the court.\n\nEven the parties and the tr:al court did not understand the pleadings as containing a plea that the gift deed was antedated and fraudulent in the sense of having been executed to defeat and delay the creditors of the father <)f the;; tespond•nts. No i:sue\n\nwas framed on the question of fraud or antedating.\n\nEven in the course A of evidence no questions were put on behalf of the appellant to the witnesses of the respondents suggesting such fraud or antedating. The question of the g:ft deed being fraudulent was raised for the first time before the trial court in the course of arguments after the parties had already\n\nconcluded their evidence. [934 B-D; 935 B-D; 937 El .\n\nTherefore, there was no justification fdr the trial court to go into the B have been fully argued before the High Court without any objection. The High Court has considered and decided that question. Hence the appellant cannot now be permitted to contend that for want of necessary pleadings that question cannot be gone into.\"\n\nThe circumstances of that case are again quite different from those in the case before us. In that case, all the facts necessary for determining the question were before the Court, while, in the present case, such facts could not come in, becaljse the parties, at the time of trial, were not aware that these pleas of fraud and antedating are going to be considered by the courts.\n\nNone of the cases r.elioo upon by learned counsel affects the view taken by us that, in the present case, the High Court was fully justified in setting aside the findings of the appellate Court on the question of fraud and antedating.\n\nI Learned counsel for the appellant also referred to the plea of limitation in respect of the right of Smt. Mendri through whom also title was claimed by the plaintiff-respondents in respect of some of the properties in suit.\n\nThat plea becomes immaterial because, even if the gift deeds executed by Smt. Mendri are disregarded, the title to those properties was acquired by the respondents through the gift-deed Ext. P-3 executed by Bhiwa himself and the; oorlier title claimed need not, , therefore, be gone into.\n\n\"- Lastly, counsel urged that now that the suit has been remanded to the trial Court foil. reconsidering the plea of res-judicata the appellant should habeen given an opportunity to amend the wr1tten statement so to include pleadings in respect of the fraudulent nature and an ting of the gift deed Ext. P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time-barred and it would be unfair to the \"plaintiff-respondents to allow these pleas to be raised by amendment of the written statement at this late stage.\n\nIn the order, the High Court has stated that the juc1gments and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial Court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argue.cl by learned counsel that, in making this order, the Hih Court has set aside all findings recorded on all issues by the trial Court and the first appeJlate Court. This is not a correct int\"1\"- pretation of the order. Obviously, in directing that findings of\n\n940 SUPll.JlME COUJ.T 11.EPORTS\n\n[ 1971] 3 S.C.R.\n\nboth courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Similarly, in permitting amendments, the High Court has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars and details of_ his plea of res judicata, and has added that the trial Court may also consider his prayer for allo•ving any other amendments. On the face of it, those other amer.dments, which could be allowed, must relate to this very plea of res judicata.\n\nIt cannot be interpreted as giving liberty to the appellant to raise any new pleas altogether which were not raised at the initial stage. The other amend1nents have to be those which are consequential to the amendment in respect of the plea of res judicala. ·\n\nIn support of the argument that the appellant should . be allowed to amend his pleadings in respect of froud and antedating also, reliance was placed on the decision of this Court in L. I.\n\nLeach and Compa~ Ltd. v. Jardine Skinner and Co.( 1), where an amendment was allowed at a very late stage by this Court.\n\nThe Court held :-\n\n\"The plaintiffs seek by their amendment only to claim damages in respect of those consignments. The prayer in the plaint is itself general and merely claims E damages.\n\nThus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods.\" F\n\nThe dictum in that case has no application to the case before us in which there are no allegations or pleadings in the written statement in respect of the new pleas sought to be raised by amendment. Reference was also made to the decision of this Court in A. K. Gupta and Sons v. Damodar Valley Corporation(') where the principle laid down was that : G\n\n\"the general rule, no doubt, is that a party is not allowed by amendment t<> set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred.\n\nBut it is also well recognised that where the amendment does not consti; tute the addition of a new cause of action, or raises a H different case, but amounts to no more than a different\n\n(I) [1957] S.C.R. 438.\n\n(2) [1966] I S.C.R. 796.\n\nor additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.\"\n\nIn the case before us, this principle, instead of helping the appellant, goes against him. In this case, the pleas of fraud and ante- B dating in respect of the gift deeld Ext. P-3 raise entirely new causes pf action and a case quitci different from that pleaded in the original written statement. It is not a case of a different or additional approach to facts already given in the written statement. These cases do not, therefore, help the appellant and would not justify our permitting amendment of the written statement C at this late stage by varying the order of the High Court.\n\nThe appeal fails and is dismissed with costs in this Court ..\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 44, "entities": [{"text": "LAL\n\nANANDIBAI & ORS", "label": "RESPONDENT", "start_char": 6, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "ANANDBAI & ors", "offset_not_found": false}}, {"text": "March 3, 1971", "label": "DATE", "start_char": 29, "end_char": 42, "source": "ner", "metadata": {"in_sentence": "March 3, 1971\n\n[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.]"}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 48, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 59, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "V. BHARGAVA, JJ.", "label": "JUDGE", "start_char": 73, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "2nd May 1951", "label": "DATE", "start_char": 649, "end_char": 661, "source": "ner", "metadata": {"in_sentence": "The respondents, who were the daughters of the original owner filed a suit claiming title to the property under gift deeds executed by their mother with respect to a share, (which she got under a sale deed from her husband) and by their father on 2nd May 1951, in respect of the entire property."}}, {"text": "13th May, 1951", "label": "DATE", "start_char": 1171, "end_char": 1185, "source": "ner", "metadata": {"in_sentence": "It held that the mother had lost her right to her share, that the gift deed executed by the father was antedated having been in fact executed after 13th May, 1951, and that it was intended to .llefeat the sale in favour of the appellant."}}, {"text": "23rd August 1951", "label": "DATE", "start_char": 1500, "end_char": 1516, "source": "ner", "metadata": {"in_sentence": "i) it was belatedly registered on 23rd August 1951 and (ii) the register of the petition-writer who wrote the gift deed was not produced thus raising a presumption aga:nst the respondents."}}, {"text": "May 13, 1951", "label": "DATE", "start_char": 2754, "end_char": 2766, "source": "ner", "metadata": {"in_sentence": "HELD : (I) (a) The pleadings in the written statement did not indicate that the appellant put forward the case that tl'gift deed was executd by the father after May 13, 1951 and that it was ante-dated."}}, {"text": "[1964] 3 S.C.R. 634", "label": "CASE_CITATION", "start_char": 3875, "end_char": 3894, "source": "regex", "metadata": {}}, {"text": "(1968] 3 S.C.R. 784", "label": "CASE_CITATION", "start_char": 4011, "end_char": 4030, "source": "regex", "metadata": {}}, {"text": "(1966] 1 S.C.R. 796", "label": "CASE_CITATION", "start_char": 6184, "end_char": 6203, "source": "regex", "metadata": {}}, {"text": "M. N. Phadke", "label": "LAWYER", "start_char": 7124, "end_char": 7136, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke a.nd A. G. Ratnaparkhi, for the appelian:."}}, {"text": "L. Roshan", "label": "LAWYER", "start_char": 7184, "end_char": 7193, "source": "ner", "metadata": {"in_sentence": "It L. Roshan and H. K. Puri, for respondent Nos."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 7198, "end_char": 7208, "source": "ner", "metadata": {"in_sentence": "It L. Roshan and H. K. Puri, for respondent Nos."}}, {"text": "Bhargava", "label": "JUDGE", "start_char": 7282, "end_char": 7290, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bhargava, J.-This appeal by special leave has been filed by Mohan Lal who purchased the property dn dispute from the original owner, Bhiwa, by means of two sale-deeds Exhibits D-1 and D-2 both dated 13th May, 1951."}}, {"text": "Mohan Lal", "label": "PETITIONER", "start_char": 7342, "end_char": 7351, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bhargava, J.-This appeal by special leave has been filed by Mohan Lal who purchased the property dn dispute from the original owner, Bhiwa, by means of two sale-deeds Exhibits D-1 and D-2 both dated 13th May, 1951.", "canonical_name": "MOHAN LAL .V,"}}, {"text": "Bhiwa", "label": "GPE", "start_char": 7415, "end_char": 7420, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bhargava, J.-This appeal by special leave has been filed by Mohan Lal who purchased the property dn dispute from the original owner, Bhiwa, by means of two sale-deeds Exhibits D-1 and D-2 both dated 13th May, 1951."}}, {"text": "23rd March, 1949 and", "label": "DATE", "start_char": 7608, "end_char": 7628, "source": "ner", "metadata": {"in_sentence": "The properties were already mortgaged in favour of the appellant by two earlier mortgage-deeds exP...cuted on 23rd March, 1949 and 26th June, 1949 respectively."}}, {"text": "26th June, 1949", "label": "DATE", "start_char": 7629, "end_char": 7644, "source": "ner", "metadata": {"in_sentence": "The properties were already mortgaged in favour of the appellant by two earlier mortgage-deeds exP...cuted on 23rd March, 1949 and 26th June, 1949 respectively."}}, {"text": "Bhiwa", "label": "OTHER_PERSON", "start_char": 7754, "end_char": 7759, "source": "ner", "metadata": {"in_sentence": "The plaintiff-respondents claimed that the two sale deeds were collusive transactions between Bhiwa and the appellant and that, in auy case, Bhiwa had no right to sell these properties to the appellant, as the respondents had become owners of these prcperties prior to the execution of the sale-deeds.", "canonical_name": "Bhiwas"}}, {"text": "Mendra", "label": "OTHER_PERSON", "start_char": 8205, "end_char": 8211, "source": "ner", "metadata": {"in_sentence": "Mendra and to his nephew.", "canonical_name": "Mendra"}}, {"text": "Barshya", "label": "OTHER_PERSON", "start_char": 8232, "end_char": 8239, "source": "ner", "metadata": {"in_sentence": "Barshya, each of the vendees getting a half share in those fields."}}, {"text": "20th Ju:y, 1921", "label": "DATE", "start_char": 8349, "end_char": 8364, "source": "ner", "metadata": {"in_sentence": "Later, Barshya re-conveyed his share to Bhiwa on 20th Ju:y, 1921."}}, {"text": "Mendri", "label": "OTHER_PERSON", "start_char": 8795, "end_char": 8801, "source": "ner", "metadata": {"in_sentence": "Mendri was 2iftcd by her to the plaintiff-respondents by two g; ft deeds Exts.", "canonical_name": "Mendra"}}, {"text": "2nd May, 1951", "label": "DATE", "start_char": 9186, "end_char": 9199, "source": "ner", "metadata": {"in_sentence": "P-3 was executed by Bhiwa himself in favour of the plaintiff-respondents on 2nd May, 1951."}}, {"text": "May 13. 1951", "label": "DATE", "start_char": 9328, "end_char": 9340, "source": "ner", "metadata": {"in_sentence": "and this covered the entire property in respect of which sale-deeds were later executed by Bhiwa in favour of the appellant on May 13."}}, {"text": "section 145", "label": "PROVISION", "start_char": 10412, "end_char": 10423, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 10431, "end_char": 10457, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bhiwas", "label": "OTHER_PERSON", "start_char": 10512, "end_char": 10518, "source": "ner", "metadata": {"in_sentence": "Mendri after the compromise in Bhiwas suit recognising Mendri's right to 1/4th share in the two fields.", "canonical_name": "Bhiwas"}}, {"text": "Article 47", "label": "PROVISION", "start_char": 10849, "end_char": 10859, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 10875, "end_char": 10895, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Second Additional District Judge, Bhandara", "label": "COURT", "start_char": 11293, "end_char": 11335, "source": "ner", "metadata": {"in_sentence": "The appeal and the cross-objection were heard by the Second Additional District Judge, Bhandara."}}, {"text": "s. 145", "label": "PROVISION", "start_char": 12035, "end_char": 12041, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 12049, "end_char": 12075, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 12855, "end_char": 12875, "source": "ner", "metadata": {"in_sentence": "Against this decree passed by the first appellate Court, second appeal was filed before the High Court of Bombay."}}, {"text": "2-5-1951", "label": "DATE", "start_char": 16646, "end_char": 16654, "source": "ner", "metadata": {"in_sentence": "These \\ssues are as follows:-\n\n( 4) (a) Whether on 2-5-1951, Bhiwa made the gift of 5.66t acres of land held in malikmakbuza rights and 2.8 acres of occupancy E land in favour of the plaintiff ?"}}, {"text": "13-5-1951", "label": "DATE", "start_char": 17069, "end_char": 17078, "source": "ner", "metadata": {"in_sentence": "(13) Whether on 13-5-1951, Bhiwa was not the owner of the fields and he could not convey good\n\ntitle to the land in favour of the defendant ?"}}, {"text": "23rd March, 1949", "label": "DATE", "start_char": 20274, "end_char": 20290, "source": "ner", "metadata": {"in_sentence": "As a creditor, he could not be defrauded, because his loans were secured by the mortgage deeds dated 23rd March, 1949 and 26th June, 1949."}}, {"text": "Bose", "label": "JUDGE", "start_char": 24166, "end_char": 24170, "source": "ner", "metadata": {"in_sentence": "The first case referred to is Kidar Lall Seal and Another v. Hari Lall Sea/(1), where Bose, J., with whom Fazl Ali, J. agreed, said :-\n\n'I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side,\n\nhowevr clumsily or inartisticaUy the plaint may be worded."}}, {"text": "Fazl Ali", "label": "JUDGE", "start_char": 24186, "end_char": 24194, "source": "ner", "metadata": {"in_sentence": "The first case referred to is Kidar Lall Seal and Another v. Hari Lall Sea/(1), where Bose, J., with whom Fazl Ali, J. agreed, said :-\n\n'I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side,\n\nhowevr clumsily or inartisticaUy the plaint may be worded."}}, {"text": "Bhagavathi Valli", "label": "OTHER_PERSON", "start_char": 26291, "end_char": 26307, "source": "ner", "metadata": {"in_sentence": "The question was whether a particular notification had exempted one Bhagavathi Valli from the provisions of Part IV of the Ezhava Acl."}}, {"text": "section 4", "label": "PROVISION", "start_char": 28459, "end_char": 28468, "source": "regex", "metadata": {"statute": null}}, {"text": "MOHAN LAL .V,", "label": "PETITIONER", "start_char": 28687, "end_char": 28700, "source": "ner", "metadata": {"in_sentence": "It is true that the pleadings on this point are rather vague; but\n\nD ,\n\nMOHAN LAL .V,.", "canonical_name": "MOHAN LAL .V,"}}]} {"document_id": "1971_3_942_960_EN", "year": 1971, "text": "'942\n\nGULABCHAND BAPALAL MODI\n\nMUNICIPAL CORPORATION OF AHMEDABAD CITY\n\nMarch 4, 1971\n\n[J. M. SHELAT AND c. A. VAIDIALINGAM, JJ.]\n\nBombay Provincial , Municipal Corporation Act, 59 of 1949, J. 129 of Act whether bad for excessive delegation and absence of 'guidelines- Rule 10 of Taxation Rules whether mandatory .or directory-Maintenanc• of ward-wise assessment books whether essential-Tax levied on basis of .one assessment book for whole Municipal area whether invalid-Effect of '\"' 13, 15 and 19 under the Act, on tlie interpretation of r. 10.\n\nThe appellant was owner of immovable property situate within the limits of the municipal corporation, Ahmedabad City.\n\nUnder the power reserved to it by s. 127 of the Act the Corporation served on the appellant as also on the other rate payers, bills and demand notices for payment of property tax in respect of the assessment year 1962-63. These were challenged by the appellant and also certain other rate payers in writ petitions before the High Court. The High Court inter alia held (i) that s. 129 -0! the Act did not suffer from the vice of excessive delegation by reason of the fact that no maximum rate of tax was laid down; (ii) that it was permissible under r. 10 to maintain only one assesment book and the levy could not be held invalid on the ground that ward-wise assessment books as .cor.templated by r'r. 13, 15 and 19 were n-0t maintained.\n\nIn appeal to this Court by certificate,\n\nHELD : The High Court rightly held that the charging sections of E the Act were not without guidelines.\n\nThe assessment and levy of the property taxes have to be in conformity with .. the Act and the rules.\n\nThese rules contain inter alia Taxation Rules which are part c~ the Act.\n\nSection 454, no doubt, empowers the corporation to amend, alter and add to those rules but such power is made under s. 455 subject to sanction of the State Government.\n\nUnder s. 456 the State Government can at any time require the Corporation to make rules under s. 454 in 1respect of any purpose or matter specified in s. 457 which includes item \"Municipal F Taxes-The assessment and recovery of Municipal Taxes.\" Although the Act did not during the relevant period prescribe the maximum rate at which the property taxes could be raised, the ultimate control for raising them was with the councillors responsible to the people.\n\nIt \\\\as difficult therefore to sustain the plea that the power to levy the property tax was so unbridled as to make it possible for the Corporation to levy it in an arbitrary manner or extent. [951 G 852 Bl G The proposition that \\vhen a provision requiring sanction of the Gov .. ernment to the maximum rate fixed bv the Corporation is absent. the rest of the factors which exist in the Aci lose their efficacy and cease to be guidelines cannot be accepted.\n\nFurther. if the Corporation has the flexibility of power given to it in fixi~!_! .the rates. the State Leg_islature .ca!! at any moment withdraw that flex1b1htv by fixmg the maximum hm1t up to which the Corporation can tax.\n\nIndeed the State Legislature had done so by s. 4 of the Gujarat Act. 8 of ! 968. In view of the decisions H of this Court it is not possible to agree with the contention that the Act conferred on the Corporation such arbitran: and uncontrolled power as to render such conferment an excessive delegation. (954 F-G]\n\nBAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, J.) 943\n\nCorporation of Calcutta v. Liberty Cinema, [1965] 2 S.C.R. 477, Municipal Corporation of the Cill\"! of Ahmedanwd v. Zaveri Keshavla/, 6 Guj.\n\nL.R. 701, Wesern India Theatres Ltd. v. Municipal Corporation of the City of Poona, (1959] Supp. 2 S.C.R. 71, Pandit Banarsi Das Bhanot v.\n\nMadhya Pradesh, (1959] S.C.R. 427 and Devi Das\n\n\nMunicipal Corporation of Delhi v. Bir/a Mills, [1968) 3 S.C.R. 251 followed.\n\n(2) The tax levied on the basis of ooe assessment book was not invalid, Rule 10 differs from s. 157 of the Bombay Municipal Corporation Act, 1888, in that, whereas, it gives an option to the Commissioner either to maintain one assessment book for the entire city or separate assessment books, Sec. 157 gave no .such option and provided only for ward assessment-book which collectively constituted, as in r. 10(2), \"the assessment\n\nbook\".\n\nThe legislature deliberately made a departure from s. 157 by leaving it to the discretion of the Commissioner either to maintain one book or several books ward-wise. Such a departure was presumably made because the Act was to apply not to one city only, as did the Bombay Act of 1888, but to an unknown. number of cities where Municipal Corporations might in future be. set Up, each having different conditions from the other. and not being certain wpether one assessment book or separate ward assessment books would be suitable for each of them. [955 G; 956 Al D\n\nThe contention that r. 10 should be construed as mandatory ignores\n\n(1) the permissive language of the rule and (2) the deliberate departure made by the legislature from s. 1'57 of the Bomba)' Corporation Act, 1888.\n\nIf it intended that assessment-books for each ward shoud be kept, there was no necessity for it to depart from the language of s. 157 of that Act.\n\nThe fact that it made such depacture is a sure indication that it did not.\n\nUnless compelled by the context and content of the other rules, there would be no justification not to give to r. JO the plain meaning of its language, particularly in view of the fact that the Act intended to apply not to one but to an indefinite number of cities, each differing in conditions from the other, a factor which, as aforesaid, led the legislature to make a departure from the said s. 157. [958 H959 BJ\n\nCerJain anomalies would arise from the High Court's interpretation that rr. 13, IS and 19 would not apply in the case of one assessment book.\n\nRule 19 was intended to enable the Corporation to proceed . to makt' demands so soon as entries were made as provided by cl. (e) of r. 9 and the Commissioner had given thereafter his authentication that there existed no valid objection to the rateable values entered under the said.\n\ncl. (e). Since the object of r. 19 was to make the entry as to the amount of tax conclusive evidence so as to enable the Commissioner to issue the bills, the legislature could not have intended to apply the rule only whe11 ward assessment-books were kept and not when one assessment-book wa~ maintained, especially when in r. 10 it had deliberately given discretion to the Commissioner to maintain either one assessment-book or several ward assessment books. Further if r. 19 were to be so construed, rr. 13, and 15 also would have on the same reasoning to be likewise construed.\n\nH That would mean that the notice to enable the rate payers to take inspection under r. 13 and the notice under r. 15 fixing the date on or before which complaints against rateable value can be made, would have to be given only where ward assessment books are kept and not where one 16-LtlOOSupCI/71\n\nassessment book is kept. It goes without saying that the right to inspect provided under r. 13 and the right to file a complaint under r. 15 are vital matters. That being so it is hardly conceivable that the legislature intended these rules to apply only where the Commissioner kept ward assessment-books. Since r. 10 has to be construed as permissive and not mandatory, and the construction adopted by the High Court in regard to rr. 13, 15 and 19 is bound to create anomalies, the conclusion must be that it was through inadvertence that the old language used in ss. 157 to 168 of the Bombay Corpdration Act was. allowed to be retained wihut carrying out the change of language necessitated as a result of r. 10 g1vmg discretion to the Commissioner either to maintain one book or several books ward-wise. In the result the assessment book in question must be held to be valid and no objection as to the validity of the bills and demand notices can be raised on the ground that only one assessment book and not wardwise books were kept. [959 C-960 El\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1090 of 1967.\n\nAppeal from the judgment and decree dated May 5, 1966 of the Gujarat High Court in S.C.A. No. 877 of 1962.\n\nB. R. L. Iyengar, N. J. Modi, P. C. Bhartari and K. N .. Desai for the appellant.\n\nI. N. Shroff, fot respondent No. 1.\n\nK. L. Hatlzi and S. P. Nayar, for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nShelat, J. This appeal, by certificate, arises out of one of the seventy Special Civil applications filed in the High Court of Gujarat by several rate payers challenging the validity of the assessment of property tax made by the respondent-Corporation under the Bombay Provincial Municipal Corporations Act, LIX of 1949 (hereinafter referred to as e Act).\n\nThe appellant is the owner of an immovable property situate within the limits of the Corporation.\n\nUntil March 31, 1961, two kinds of taxes were being levied on buildings and lands situ!!_te within the Corporation's municipal limits : ( 1) the general tax levied by thel Corporation under the Act, and (2)\n\nthe urban immovable property tax levied under the Bombay G Finance Act, 1932 by the State Government, but collected on its behalf by the Corporation. At the request of the Corporation made in 1960, an arrangement was arrived at between the Government and the Corporation whereunder the Government agreed not to levy the U.I.P. tax provided the Corporation increased the rate at which it was till then levying the property taX. Accordingly, in January 1961 the Corporation passed a resolution in- H creasing the rate of the property tax with efft from April 1, 1961 under the powelr reserved to it by s. 127 of the Act. In\n\n'*\"\n\n• .,\n\ntill .f~·\"\n\n• <\n\nBAPALAL v. MUNrc. CORP. AHMEDABAD (Shelat, /.) 945\n\npursuance of the said resolution and in accordance with the raised percentage of the geral tax the Corporation served qn the appellant, as also on the other rate payers, bills and demand notices.\n\nIn this appeal we are concerned with the bills and notices in respect of the assessment year 1962-63.\n\nThe appellant, as also certain other rate payers, challenged the said bills and notices in their said writ petitiQDS mainly on the grounds ( 1) that the Corp'oration had no authority to amend the rates with the object of including the said U.I.P. tax in the general tax so far levied by the Government undell' a different statute and givCT! up by it under the said arrangement; (2) that the said bills and notices were illegal as the assessment-book kept by the Corporation was not in accordance with the rules made under the Act and was not authenticated by the Commissioner as required thereunder; (3) that ss. 99, 123 and 129(c) of the Act were unconstitutional in that they suffered from thel vice of excessive delegation in so far as they did not fix the maximum rate at which the Corporation could levy the property tax, and ( 4) that the said sections were also violative of Art. 19(l)(f) and Art. 31 as the tax was confiscatory in character.\n\nBy its judgment dated May 5, 1966, the High Court first disposed of fifty two out of the said seventy writ petitions rejecting the contentions raised therein.\n\nThereafter the judgment under review separately disposed of the remaining 18 petitions, including that of the appellant, as, besides the points raised in the said 52 writ petitions, these 18 writ petitions raised some additional points.\n\nThe High Court in this judgment did not deal afresh the points already disposed of by it in the larger group of writ petitions and based its judgment in respect of them on its earlier judgment dated May 5, 1966.\n\nIn its judgment, dated the May 5, 1966, the High Court elaborately examined the scheme and the objects of the Act and the rules and came to the following conclusions :\n\n( 1) that the Corporation need not maintain separate assessment-book for each of the wards and could legally maintain one assessment-book covering all the wards;\n\n( 2) that the authentication provided for by r. 19 of the said rules in Ch. Vill to Sch. A of the Act was not mandatory;\n\n( 3) that the liability to pay the tax arose. when entry under r. 9 ( e) was made in the assessment-book; and ·\n\n946 SUpREME COURT REPORTS [1971 ]3 s.c.R. \\ •.\n\n(4) thats. 129(c) read with ss. 99 and 127 did not A 1.\n\nsuffer from the vice of excessive delegation as the legislature had provided in the Act both its policy and principles guiding the Corporation in levying the said tax.\n\nThe High Court also negatived the contention that s; 129 ( c) by B giving power to tax without laying down the maximum rate was violative of Art. 19(l)(f) :; md/or Art. 31 or Art. 14.\n\nTh~ High\n\nourt also rejected the additional contentions raised in the peti- !Ions left over from the e; arlier batch of 52 petitions and dismissed > all of them. The correctness of the views expressed by-the High Court in this judgment, as also in its earlier judgment by the comc bined effect of. which altogether 70 writ petitions were negatived, ' is challenged in this appeal.\n\nWe need not go into all the diverse contentions raised before the High Court as counsel for the appellant raised before us the following three questions only :\n\n(1) that while making the assessment the procedure contemplated by ss. 127, 129 ( c) of the Act and\n\nrr. 9 to 20 of the Taxation Rules was not complied with inasmuch as no ward assessment-books were maintained, and consequently, the entries therein were not authenticated as required by r. 19; E ~\n\n(2) that s. 129 suffers from the vice of excessive delegation of legislative power inasmuch. as the Act fails to provide either the maximum rate leviable by the Corporation or the guidelines for levying the tax;\n\n(3) that in any view of the matter, in the circums- F .... _:· tances in which the resolution raising the rate was passed, it did not impose the enhanced rate on the property of the appellant as the same was not, prior•to April 1961, subjected to the U.1.P. tax.\n\nG Later, Mr. Jyengar gave up the third contention. We are, therefore, left with his.contentions (1) and (2) only for determination.\n\nBroadly stated, the facts regarding the assessment-book and its authentication are as follows : Each year the Commissioner either prepared or continued the assessment-book required to be main- H tained by him under the Taxation Rules.\n\nEach year he went , ii>· through the procedure for authentication of the assessment-book purporting to do so under r. 19 of the Taxation Rules.\n\nAfter\n\nFAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, J.) 947\n\nthe assessment-book was authenticated, as aforesaid, and a certificate was issued by him that no valid objection had been received in respect of the rateable values entered in the assessment-book as required by cl. ( e) of r. 9 of the said rules, the Corporation issued bills and demand notices requiring the owners or occupiers of the properties to pay the said tax. The Act and the rules provide for objections to the rateable values entered in the assessment-book under Cl. (b) of r. 9, which objections would be heard and decided by the Commissioner. There are provisions in the Act, such as ss. 406, 410 and 411, for appeals to the Judge, Small Causes Court, both against the rateable value fixed under the Taxation Rules as also against the amount of tax demanded in the bills.\n\nAs aforesaid, the High Court dismissed the contention as to the constitutionality of s. 129(c) basing its decision mainly on the authority of the Corporation of Calcutta v. Liberty Cinema,(1) wherein the validity of s. 548(2) of the Calcutta Municipal Act, authorising the Corporation to levy a fee (held by this Court to be a tax) for every licence and pennission at such ratP, as may be fixed from time to time by the Corporation, but which did not lay down the maximum rate, was challenged.\n\nThe .High Court in particular relied on the observations in that decision ( 1) that fixation of the rate was not an essential legislative function and could be delegated, and (2) that the provisions in the Act, which limited the power to levy taxes to the extent of the statu, tory needs of the Corporation, furnished sufficient control. and gUidance. Reliance was also placed on the following observation relating to the absence of maximum rate :\n\n\"It is said that the delegation of power to fix rates of taxes authorised for meeting the needs of the delegate to be valid, must provide the maximum rate that can be F fixed, or lay down rules indicating that maximum. We are unable to see how the specification of the maximum rate supplies any guidance as to how the amount of the tax, which no doubt has to be below the maximum, is to be fixed.\n\nProvision for such maximum only sets out a limit of the rate to be imposed and a limit is only a limit G and not a guidance.\"\n\nBesides deriving support from this judgment, the High Court examined various provisions of the Act and reached the conclusion that under the Act, as under the Calcutta Act, the tax, which the Corporation could collect, would have to be for the purposes of the Act only and that fact, together with certain other controls H embodied in the Act, furnished sufficient guidance preventing the \\ vice of arbitrariness or excessive delegation.\n\n(1) [1965]2 S.C.R. 477.\n\nBefore the High Court, the contention also was that for each of the relevant years there was no valid assessment-book on the basis of which the property tax could be levied. The argument was that the Taxation Rules required the Commissioner to prepare ward assessn; ent-book for each of the wards and not one assessment-book for the whole of the municipal-limits, that that being so, the assessment made on the properties was not in accordance with the rules prescribed for that purpose and was therefore in bre.ach of Art. 265 of the Constitutior ands. 127(2) of the Act which lays down that the taxes shaJIJ. b~ assessed and levied in accordance with the provisions of the Act and the rules. The High Court, on a reading of the rules, found : (1) that r. 10 gave discretion to the Commissioner to prepare either one assessmentbook or ward assessment-books, and (2) that the rules used both the expressions, namely, 'assessment-book' and 'ward assessment books', the latter expression being used only in rr. 13(1), 15(1) and 19(1) and (2). According to the High Court, the contention as to the validity of the assessment-book and the construction of the rules suggested on .behalf of the appellant were not correct.\n\nThe object of r. 9, accordin J to the High Court, was to provide for the preparation and maintenance of the assessment-book wherein would be entered the amount of property tax against each of the buildings and lands set out thern. The rule provided that the Commissioner shall first make entries under els. (a) to ( d) of the rule. An entry under cl. ( e), as its language plainly shows, is to be made after :\n\n(1) the rates of property tax are fixed, (2) the period fixed for receipt of complaints against the rateable values has expired, and ( 3) after such complaints, if any, are disposed of by the Commissioner. An entry under cl. ( e) having to be made only after the events in (1 ), (2) and (3) above stated have happened, r. 9 takes in, by using the expression \"as hereinafter provided\", the public notice provided by rr. 13 and 15.\n\nAccording to the High Court, the liability to pay the property tax arises as soon as entry under cl. .( e) of r. 9 is made in the assessment-book in the manner therein provided and is not dependent on authentication and certification provided in r. 19 in respect of ward 'asessment-books. Authentication and certification in such ward assessment-books provides a rule of evidence in the sense that the entries therein become conclusive evidence as regards the amount of tax therein S(lt out against each property and is not an event on the happening of which the liability to pay arises. Such liability arises as soon as entry under cl. ( e) of r. 9 is made.\n\n• The High Court distinguished its earlier decision in t_he Municipal Corporation of the City of Ahmedabad v. Zaver1 Keshav la/(') by pointing out that that decision was under the Bombay\n\n(I) 6 Guj. L.R. 701.\n\n> c\n\ni \"\n\nI '\n\n13APALAL v. MUNIC. CORP. AHMEDA13AD (She/at, J.) 949\n\nMunicipal Boroughs Acts, 1925 which had a scheme and provisions different from the present Act and the rules thereunder made. That decision had laid down that the liability of the rate payer would arise only after authentication of the assessmentbook.\n\nFor distinguishing that decision the High. Court, firstly, relied on r. 30 of the Taxation Rules which provides that property tax shall accrue due on the 1st of April of each official ye.ar; and secondly, on the ground that the Boroughs Act and the rules thereunder did not have a rule corresponding to r. 9(e) which when read with r. 30, shows that the liability to pay the amout of tax arises on entry under cl. ( e) of that rule being made. According to the High Court, r. 19, which provides for authentication applies only to ward assent.-books and i; iot to a single assessment-book, that such authentication has noth.mg .to do with the accrual of liability and is a mere rule of ey1ence which is not available to the Corporation where the Comm1Ss1oner does not prepare ward assessment-books and keeps only one assessment-book. The High Court in this connection observed :\n\n\"If a single assessment-book is prepared, then the amount of tax entered in the assessme, nt-book will not be the conclusive evidence. In an appeal, it would be open to a rate payer to challenge the amount on any legal ground, possibly including the challenge to the rateable value of the property in respect of the fact that that had not been done before by him.\"\n\nOn this interpretation, the High Court dismissed the entire batch of the sid '.0 writ petitions including that of the appellant. Though the earler 1udgme_nt is not m;1.der review in this appeal, we have set out its conclusions as the Judgment under review followed the earlier judgment, delivered by the same learned Judges and rejected the onclusion~ raised by the appellant. In effect, therefore, both the Judgments are under challenge to the extent that they decided questions raised in this appeal.\n\nSec. ~27(1) lays don that \"for the purposes of this Act\" the taxes which the Corporation has compulsorily to levy are property taxes and a tax on vehicles, boats and animals. The second sub-\n\nection. uthorises the Corporation to levy the taxes set out therein m addition to the aforesaid two taxes. Sec. 129 deals with property taxes.\n\nCl. ( c) thereof provides that property taxes shall comprise inter alia of a general tax of not less than 12% of the rateable value of buildings and lands. We may note that the Gujarat State Legislature, by Act 8 of 1968 has recently amended\n\ncl. ( c) by inserting therein the maximum' rate of 30% so that the question as to the absence of maximmn rate is releant only\n\nfor t)le assessment years prior to the amendment. The Legislature itself has framed elaborate rules contained in Sch. A to the Act of which _the Taxation Rules in Ch. VIII thereof are part and which under s. 453 form part of the Act. Besides the said rules, ss. 454 and 455 authorise the Corporation to add to, amend, alter\n\nor rescind those rules subject to their being not inconsistent with the provisions of the Act, sanction of the State Government and to the condition of their being made after previous publication.\n\nThe other relevant provisions of the Act are ss. 63 to 66 which lay down the obligatory functions which the Corporation must perform and certain discretionary functions which it can perform.\n\nThe argument was that thought s. 127 (1) lays down that property taxes can be levied by the Corporation only for the purposes of the Act, that is to say, for and in respect of the functions which the Corporation must and can catry out, the Act being silent as tothe. I, Ilaximum rate upto which the Corperi!tion can levy, it gives unbridled and arbitrary power to levy the property tax as much and to any extent it may desire. Mr. Iyengar pointed out that amongst the discretionary functions which the Corporation can undertake under s. 66 there are such things as swiming pools, public parks, gardens, recreation grounds, construction, of dwellings for municipal officers and servants, libraries, museums etc. for undertaking which the Corporation can spend huge amounts and impose extravagant and burdensome rate of tax. According to the argument, there are no guidelines or controls in the Act which can place any limits to the spending by the Corporation on such discretionary objects, and therefore, the rate payers are exposed to being taxed in an arbitrary and uncontrolled fashion.\n\nThe question thus is whether the Act contains any policy or guidelines or control over the taxing power of the Corporaon without' which the delegation of power to tax would be excessive, arbitrary and violative of Art. 14.\n\nThe Act, as its preamble and the Jong title show, was passed for establishment of municipal corporations in the city of Ahmedabad and Poona and cer\\ain other cities for ensuring better municipal government. It was apparently modelled after the Bombay Municipal Corporation Act, 1888. The Act does not lay down any maximum rnte in s. 127 probably because its operation was not confined to any particular city in which the municipal corporation would be se.t up. The Legislature, while passing it, could not envisage in which particular cities such corporations would be set up. Nor could it envisage what their financial needs would be; nor which of the discretionary functions,. under s. 66, such corporations would feel they must undertake. Such needs being variable and incapable of uniform specification, the Legislature might have felt it inexpedient to restrict the fiscal powers of the c'orporations to be established in furture.\n\n' ,\n\nDAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, J.) 95 t\n\nThe point for consideration is whether the absence of a provision laying down the maximum rate is by itself sufficient to render the delegation of the power excessive. As already stated, s. 127 (1) expressly provides that taxes can be leyied only for the purposes of the Act. They cannot thus be raised for any function other than the one provided by the Act. Sec. 82 requires all monies received by the Corporation under the Act to be credited to the Municipal Fund held by the Corporation in trust for the purposes of the Act. By reason of s. 86, no payment can be made out of the Municipal Fund unless it is covered by the current budget grant.\n\nFurthermore, s. 88 lays down that the moneys credited in the Municipal Fund shall be applied in payment of sums, charges and .costs necessary for carrying the Act into effect, or payment directed or sanctioned by or under the Act. Sec. 89 restricts expenditure by the Corporation within the city except when provided by the Act or by a resolution by not less tlj.an half the total number of councillors. Under s. 95, the Commissioner is required annually to lay before the Standing Committee estimates of income and expenditure, and under s. 96. the Standing Committee has to wepare budget .estimate 'A' \"having regard to all the requirements of this Act.\" The budget estimate then has to be laid before and passed by the Corporation. Similar provisions are made in ss. 97 and 98 for budget estimate 'B' prepared by the Transport Manager. It is after all this has been done that the Corporation under s. 99 determines, on or before the 20th of February of each year, the rates at which property taxes under s. 127 (1), but subject to the limitations and conditions laid down in Ch. XI, are 'to be levied for the neitt ensuing offiCial year,\n\nUnder s. 100, the Corporation either sends back the budget esti mates 'A' or 'B' for further consideration, or ats them with such alterations as it deems expedient. The conditions and limi tations subject to which the Corporation can fix, under s. 99, the rates at which the property taxes ae to be levied are those pro vided ins. 127(3) and (4), i.e., they can be assessed and levied in accordance with the provisions of the Act and the rules. These provisions clearly show that the ultimate control, both for raising the taxes and incurring expenditure, lies with the councillors chosen by and responsible to the people.\n\nAs aforesaid, the assessment and levy of the property taxes have to be in conformity with the Act and the rules. These rules contain inter alia Taxation Rules, which are part of the Act. Sec. 454, no doubt, empowers the Corporation to amend, alter and add to these rules, but such power is made under s. 455 subject to the sanction of the State Government. . Under s. 456, the State Government can at any time req11ire the Corporation to make rules under s. 454 in re5pect of any purpose or matter specified in s. 457, which includes item \"(7) Municipal Taxes.-(a) The assess\n\nment and recovery of municipal taxes\". Thus, although the Act does not prescribe the maximum rate at which the property taxes can be raised, the ultimate control for raising them is with the councillors responsible to the people. It is difficult, therefore, to sustain the plea that the powr to levy the property tax is so unbridled as to make it possible for the corporation to levy it in an arbitrary manner or extent.\n\nIn all statutes dealing with local administration municipal authorities have inevitably to be delegated the power of taxation.\n\nSuch power is a necessary adjunct to a system of local self-government. Whether such delegation is excessive and amounts to abdication of an essential legislative function has to be considered from the scheme, the objects, and the provisions of the statute in question.\n\nIn The Western India Theatres Ltd. v. Municipal Corporation of the City of Poona(') this Court spelt out the policy in the expression \"for the purposes of this Act'', an expression also used ins. 127. In Pandit Banarsi Das Bhanot v. Madhya Pradesh(2i,\n\ndelegation of power to the executive to determine the details relating to the working of taxation laws~ such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like, was held not to be unconstitutional on the' principle that so long as the legislature retains or has the power of withdrawing or altering the power to tax delegated to a subordinate authority such delegation would be held neither an abdication nor excessive, In Liberty Cinema case(') the majority view was that the power to fix the rate of a tax was not of the essence of the legislative power and that such a power could be delegated even to a non-legislative body.\n\nBut the decision laid down that when such a power is delegated, the legislature must provide guidance for such fixation.\n\nThe majority held that where rates hav;: not been specified in the statute, the power to fix the rates as might be necessary to meet the needs of the delegate itself affords guidance.\n\nThe minority view differed from the majority view, in that, according to it, the power to fix the rate of tax was an essential legislative function.\n\nBut, even according to that view, such a power can be delegated provided the delegate is afforded guidance by the legislative laying down the policy and principles in the Act, It, however, disagre::d with the majority view that the raising of tax co-extensive with the needs of the delegate in implementing the purposes of the Act can afford such guidance.\n\nThe Liberty Cinema case(') came for consideration in Devi Das v. Punjab(') w)lere Subba Rao, C.J., speaking for the Court,\n\nsaid:\n\n(ll [1959] Supo. 2 S.C.R.71.\n\n\n(2) [1959[ S.C.R.427.\n\n\nA !\n\nBAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, J.) 953\n\nA \"If this decision [Libert)! Cinema case(1)] is an authority for the positfon that the Legislature can delegate its power to a statutory authority to levy taxes and fix rates in regard thereto, it is equally an authority for the position that the said statute to be valid must give a guidance to the said authority for fixing the said B rates .... \".\n\nThough he did not agree as a general principle that guidance .can always be spelt out from the limitation to fix the rate by the extent of needs of and the expenses required by the delegate to discharge its statu'IOry functions, the Couft did not disapprove Liberty\n\nCinema case ( 1) but confined the principle laid down there to the provisions of the C11lcutt11 Munlc1pal A.ct in which the majoritr. hlld found the requisite 1uldeline1. No sueh 1uidance was 11val •\n\nAble In the Sll!H T11x 111ltulll before the Dench deeldln1 D1vl Dall ense(1), The po1ltlon which emer11ed from the. lleeldam1 10 f11r, therefore, w111 that the power to tlx ntes e1m be dele1ated If the statute doing so eontalns a polley or prinelples £urn!Jhln1 1uldance to the aelegate in exercising such power.\n\nIn the Municipal Corporation of Delhi v, Bir/a Mllls( 8), the question as to the limits of delegation of taxing power once more arose. The Delhi Municipal Corporation Act, 1957, like the present Act, entrusted to the Delhi Corporation two kinds of functions, compulsory anq optional. In relation to the former, the Act specified the maximum rate of tax the Corporation could raise, but not so in the case of tax relating to or for implementing the optional functions. The controversy was whether the Act contained provisions furnishing guidance to the Corporation in the exercise of the power to tax. After an analysis of the provisions of the Act, Wanchoo, C.J., pointed out the {9llowing factors which furnished sufficient guidance preventing the delegation becoming invalid-:\n\n(1) that the delegation was to an elected body responsible to the people, including those who pay taxes and to whom the councillors have every four years to turn to for being elected;\n\n(2) that the limits of taxation were to be found in the purposes of the Act for the implementation of which alone taxes could be raised and though this fator was not conclusive, it was nonetheless relevant and must be taken into account with other relevant factors;\n\n(3) tht the impugned s. 150 itself contained a provision . which reqmred that ftie maximum rate fixed by the- Corporation should have the approval of the Govern ment;\n\n\n(3) 1968(3) S.C.R.251.\n\n(2) [ 1967] 3 S. C.R. 577.\n\n(4) that the Act contained provisions which required A adoption of budget estimates by the Corporation annually; and\n\n(5) that there was a check by the courts of law where the power of taxation is used unreasonably or in non-< compliance or breach of the provisions and objeets of the Act.\n\nReferring to Devi Das's case('), he pointed out that (1) that case did not disapprove Liberty Cinema case( 2 ) was concerned with a sales rax statute and not with a statute dealing with bodies with limited purposes, such as local self governing bodies. At page 268 of the report, he observed : c\n\n\"There is in our opinion a clear distinction between delegation of fixing the rate of tax like sales tax to the State Government and delegation of fixing rates of certain taxes for purposes of local taxation. The needs of the State are unlimited ... The result of making delegation of a tax like sales tax to the State Government means D a power to fix the tax without any limit even if the needs and purposes of the State are to be taken into account.\"\n\nThus, the majority view in this decision, which is binding on us, shows that. the mere fact that an Act delegating taxmg power refrains from providing a maximum rate does not by itself render E the delegation invalid.\n\nFrom the provisions of the present Act, cited earlier, it will be seen that though factor (3) of t]le factors rlied on by W ai1.s; hoo, C.J., is absent in s. 127, the rest are present. It is impossible-to say that when a provision requiring sanction of the Government to the maximum rate fixed by the Corporation is absent, the rest F of the factors which exis~ in the Act loose their efficacy and cease to be guidelines. Furthermore, if the Corporation were to misuse the flexibility of the power given to it in fixing the rates, the State legislature can at any momen~ withdraw that flexibility by fixing the maximum limit up to which the Corporation can tax. Indeed, the State Legislature has now done so by s. 4 of Gujarat Act, 8 G of 1968. In view of the decisions cited above it is not possible for us to agree with counsel's contention that the Act confers on the Corporation such arbitrary and uncontrolled power as to render such conferment an excessive delegation.\n\nThat brings us to the contention regarding the validity of the ., . assessment-book maintained by the Commissioner for the assess- H ment year in question.\n\n• •\n\n\nBAPALAL v. MUNIC. CORP. AHMEDABAD (She/at, /.) 955\n\nA Rules 9 to 21 of the Taxation Rules are headed \"Assessment- Book\". A comparison of these rules with ss. 156 to 168 of the Bombay Municiilal Corporation Act, 1888 at once shows that they are, with the exception of r. 10, taken almost verbatim from those sections. Rule 9 requires the Commissioner to keep a book to be called the \"Assessment-Book\" in which the following matters have B to be ntered, viz.,\n\n(a) a list of buildings and lands,\n\n(b) the rateable value of each o{ them,\n\n(c) the names of persons primarily liable for the payment of the property taxes, if any, leviable on each such building or land,\n\n(d) the reasons for non-liability, if any .of them is not liable to be assessed to the general tax, and\n\n(e) \"when the rates of the property-taxes to be levied for the year have been duly fixed by the Corporation and the period fixed by publi£. notice, as hereinafter provided, or the receipt of complaints against the amount of rateable value entered in any portion of the assessment-book has expired, and in the case of any such entry which is complained against, when such complaint has been disposed of in accordance with the provisions hereinafter contained, the amount at which each building or land entered in such portion of the assessment-book is assessed to each of the property taxes, if any, liable thereon.\"\n\nThe rule contain Qther clauses, but we are not at present concerned with them.\n\nRule 10(1) provides that the assessment-book may, if the Commissioner thinks fit, be made in separate books called \"ward assessment-books\", one for each of the wards into which the city is for the time being divided for purposes of the elections. Cl. (2) of the rule says that the ward assessment-books and the respective parts, jf any, shall collectively constitute the assessment-book. Rule 10 differs from s. 157 of the Bombay Municipal Corporation Act, in that, whereas it gives an option l!O the Commissioner either to maintain one assessment-book for the entire city or separate ward assessment-books, s. 157 gives no such option and provides only . for ward assessment-books which collectively constitute, as in r.\n\n10(2), \"the assessment-book\". The Legislature, thus, deliberately made a departure from s. 157 by leaving.it to the discretion of the Commissioner either to maintain one book or several books wardwise.\n\nSuch a departure was presumably made because the Act\n\nwas to apply not to one city only, as did the Bombay Act of 1888, A but to an unknown number of cities where municipal corporation might in future be set up, each having different conditions from the other and not being certain whether one assessmenli-book or separate ward assessment-books would be suitable for each of them.\n\nRules 11 and 12 deal with treatment of properties let to two or more persons in separate occupancies and the procedure where\n\nthe name of the person primarily liable for property taxes cannot be ascertained. Rule 12, it will be noticed, mentions only the assessment-book and not ward assessment-books.\n\nRule 13 provides that when entries required by els. (a), (b), (c) and (d) of C rule II have been completed \"In any ward 1menmentbook, thfo Convnlnloner shall 11lw public notice therllOf and of the place where the ward llHHMmentbook, or a ei>py of It, m11y be lnspeeted.\" Rule 14 provides for lnstlon 11nd tllkln1 extr11cu by An\n\nowner or occupier of premises entered In \"the 1meumentbook\" from any portion of \"tlie said book'' which relates to the ~11ld pre mises. Rule 1 S ruires th1f Com11o1issioner \"at tha time and in the manner prescribed m r. 13\" to give noti~ of a day not being less than 1 S days from the publication of such notice, on or before which complaints against the amount of any rateable value entered\n\n\"iii. the ward assessment-book\" will be received in his office. Cl.\n\n(2) of that rule requires the CO!l'missioner to give a special written notice to the owner or occupier of premises which have for the first time been entered \"in the assessment-book\" as liable to proc perty taxes or in which the rateable value of any premises has been increased. Rule 16 provides for the manner of filing complaints referred to in r. 15 against the rateable value \"entered in the assessment-book'', and r. 17 provides that complaints received under r. 16 shall be registered in a book kept for that purpose as also for notice to ea<;.h complainant of the time and place when and whereat his complaint would o_e investigated. Rule 18 provides for the hearing of the complain~ and cl. (3) thereof lays down that when a complaint is disposed of, its result shall be noted in the said book of complaints and the necessary amendment shall be made in accordance with such result \"in the assessment-book\".\n\nRule 19, which has been the subject matter of controversy both in the High Court and before us, yrovides that when ~.:ill such complaints, if any, have been disposed of and the entries required by cl. (e) of r. 9 have been completed in the ward assessment-book, the said book shall be authenticated by the Commissioner, who shall certify, under his signature, that except in the cases, if any, in which amendments have been made as shown therein, no valid objection has been made to the rateable. values entered in the said book\". Cl. (2) provides that \"the said ward assessment-book 5ub-\n\nBAPALAL v. MUN!C. CORP. AHMEDABAD (She/at, J.) 957\n\nA ject to such alterations as may thereafter be made therein under the provisions of r. 20 shall be accepted as conclusive evidence of the amount of each property-true leviable on each building and land in the ward in the official year to which the book-relates.\" Rule 20 empowers the Commissioner to amend the assessment-book even after it has been authenticated in certain. cases and subject to the B conditions set out therein. Lastly, r. 21 provides that it is not necessary to prepare a new assessment-book every official year and permits the Commissioner to adopt the entries in the last preceding year's book as the entries for each new year. This, he can do, for four successive years.\n\nFrom the scheme of rules 9 to 21, it is clear t'hat the Commissioner first enters in the assessment-book prescribed by r. 9 the particulars set out in els. (a) to (d) of that rule. Having done this, he proceeds to enter in the assessment-book the amount at which each building or land is assessed. He can do this under cl. (e) naturally after (i) the rates of property truces are fixed by the Corporation, (ii) the period fixed by J2!1blic notice under r. 13 and for the receipt of complaints under r. 15 against rateable values entered tinder cl. (b) has expired, and (iii) after such complaints, if any, have been disposed of.\n\nOn a plain meaning of the language in r. I 0 the Commissioher has th\\) option to maintain either one assessment-book or ward assessment-books separately for each ward. But even if he were to do so, such ward assessment-books would collectively constitute \"the assessment-book\".\n\nAs earlier stated, giving of such an option under r. 10 was a clear departure by the Legislature from s. 157 of the Bombay Act, 1888. Since these rules have been taken almost verbatim from that Act, the departure has to be regarded as deliberate and for the reason that the Legislature could not forseeiit the time of enacting the Act as to the cities in.which municipal corporations would be set up and the conditions prevailing at such time in those cities.\n\nThe difficulty, however, arises because rr. 13, 15 and 19, whih provide for a notice for inspection, for filing complaints\n\nagainst rateable values entered under cl. (b) of r. 9 and for authentication and certification, use the expression \"ward assessmentbook\". It is from this fact that the contention was raised that though r. 10 is couched in permissive language, it m11st be construed as mandatory requiring the Commissioner to maintain ward assessment-books.\n\nTherore, the Commissioner having maintained only one assessment-book for the whole city, it is not a valid book. on the basis of which the levy of the property fax can be\n\nsused. The argumet was that the right of inspection, the right of taking extracts, the nght to file complain~ and the duty to give\n\npublic notice un '", "total_entities": 111, "entities": [{"text": "942\n\nGULABCHAND BAPALAL MODI", "label": "PETITIONER", "start_char": 1, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "GULABCHAND BAPALAL MODI", "offset_not_found": false}}, {"text": "MUNICIPAL CORPORATION OF AHMEDABAD CITY", "label": "RESPONDENT", "start_char": 31, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL CORPORATION OF AHMEDABAD CITY", "offset_not_found": false}}, {"text": "March 4, 1971", "label": "DATE", "start_char": 72, "end_char": 85, "source": "ner", "metadata": {"in_sentence": "'942\n\nGULABCHAND BAPALAL MODI\n\nMUNICIPAL CORPORATION OF AHMEDABAD CITY\n\nMarch 4, 1971\n\n[J. M. SHELAT AND c. A. VAIDIALINGAM, JJ.]"}}, {"text": "M. 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R. L. Iyengar", "label": "OTHER_PERSON", "start_char": 8215, "end_char": 8231, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, N. J. Modi, P. C. Bhartari and K. N .. Desai for the appellant."}}, {"text": "N. J. Modi", "label": "OTHER_PERSON", "start_char": 8233, "end_char": 8243, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, N. J. Modi, P. C. Bhartari and K. N .. Desai for the appellant."}}, {"text": "P. C. Bhartari", "label": "LAWYER", "start_char": 8245, "end_char": 8259, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, N. J. Modi, P. C. Bhartari and K. N .. Desai for the appellant."}}, {"text": "K. N .. Desai", "label": "LAWYER", "start_char": 8264, "end_char": 8277, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, N. J. Modi, P. C. Bhartari and K. N .. Desai for the appellant."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 8298, "end_char": 8310, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, fot respondent No."}}, {"text": "K. L. Hatlzi", "label": "LAWYER", "start_char": 8335, "end_char": 8347, "source": "ner", "metadata": {"in_sentence": "K. L. Hatlzi and S. P. Nayar, for respondent No."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 8352, "end_char": 8363, "source": "ner", "metadata": {"in_sentence": "K. L. Hatlzi and S. P. Nayar, for respondent No."}}, {"text": "Shelat", "label": "JUDGE", "start_char": 8432, "end_char": 8438, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShelat, J. This appeal, by certificate, arises out of one of the seventy Special Civil applications filed in the High Court of Gujarat by several rate payers challenging the validity of the assessment of property tax made by the respondent-Corporation under the Bombay Provincial Municipal Corporations Act, LIX of 1949 (hereinafter referred to as e Act)."}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 8545, "end_char": 8566, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShelat, J. This appeal, by certificate, arises out of one of the seventy Special Civil applications filed in the High Court of Gujarat by several rate payers challenging the validity of the assessment of property tax made by the respondent-Corporation under the Bombay Provincial Municipal Corporations Act, LIX of 1949 (hereinafter referred to as e Act)."}}, {"text": "March 31, 1961", "label": "DATE", "start_char": 8894, "end_char": 8908, "source": "ner", "metadata": {"in_sentence": "Until March 31, 1961, two kinds of taxes were being levied on buildings and lands situ!!_te within the Corporation's municipal limits : ( 1) the general tax levied by thel Corporation under the Act, and (2)\n\nthe urban immovable property tax levied under the Bombay G Finance Act, 1932 by the State Government, but collected on its behalf by the Corporation."}}, {"text": "Bombay G Finance Act, 1932", "label": "STATUTE", "start_char": 9146, "end_char": 9172, "source": "regex", "metadata": {}}, {"text": "s. 127", "label": "PROVISION", "start_char": 9696, "end_char": 9702, "source": "regex", "metadata": {"linked_statute_text": "the Bombay G Finance Act, 1932", "statute": "the Bombay G Finance Act, 1932"}}, {"text": "ss. 99, 123 and 129(c)", "label": "PROVISION", "start_char": 10708, "end_char": 10730, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(l)(f)", "label": "PROVISION", "start_char": 10981, "end_char": 10994, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 10999, "end_char": 11006, "source": "regex", "metadata": {"statute": null}}, {"text": "May 5, 1966", "label": "DATE", "start_char": 11072, "end_char": 11083, "source": "ner", "metadata": {"in_sentence": "By its judgment dated May 5, 1966, the High Court first disposed of fifty two out of the said seventy writ petitions rejecting the contentions raised therein."}}, {"text": "ss. 99 and 127", "label": "PROVISION", "start_char": 12304, "end_char": 12318, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(l)(f)", "label": "PROVISION", "start_char": 12643, "end_char": 12656, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 12666, "end_char": 12673, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 12677, "end_char": 12684, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 127, 129", "label": "PROVISION", "start_char": 13297, "end_char": 13309, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 129", "label": "PROVISION", "start_char": 13538, "end_char": 13544, "source": "regex", "metadata": {"statute": null}}, {"text": "Jyengar", "label": "OTHER_PERSON", "start_char": 14019, "end_char": 14026, "source": "ner", "metadata": {"in_sentence": "G Later, Mr. Jyengar gave up the third contention.", "canonical_name": "Jyengar"}}, {"text": "ss. 406, 410 and 411", "label": "PROVISION", "start_char": 15175, "end_char": 15195, "source": "regex", "metadata": {"linked_statute_text": "Each year the Commissioner either prepared or continued the assessment-book required to be main- H tained by him under the Taxation Rules", "statute": "Each year the Commissioner either prepared or continued the assessment-book required to be main- H tained by him under the Taxation Rules"}}, {"text": "s. 129(c)", "label": "PROVISION", "start_char": 15449, "end_char": 15458, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 548(2)", "label": "PROVISION", "start_char": 15580, "end_char": 15589, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 265", "label": "PROVISION", "start_char": 17816, "end_char": 17824, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipal Boroughs Act", "label": "STATUTE", "start_char": 20296, "end_char": 20318, "source": "regex", "metadata": {}}, {"text": "Sec. 129", "label": "PROVISION", "start_char": 22597, "end_char": 22605, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat State Legislature", "label": "ORG", "start_char": 22811, "end_char": 22836, "source": "ner", "metadata": {"in_sentence": "We may note that the Gujarat State Legislature, by Act 8 of 1968 has recently amended\n\ncl. ("}}, {"text": "s. 453", "label": "PROVISION", "start_char": 23209, "end_char": 23215, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 454 and 455", "label": "PROVISION", "start_char": 23262, "end_char": 23277, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 63 to 66", "label": "PROVISION", "start_char": 23572, "end_char": 23584, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 127", "label": "PROVISION", "start_char": 23749, "end_char": 23755, "source": "regex", "metadata": {"statute": null}}, {"text": "Iyengar", "label": "OTHER_PERSON", "start_char": 24150, "end_char": 24157, "source": "ner", "metadata": {"in_sentence": "Mr. Iyengar pointed out that amongst the discretionary functions which the Corporation can undertake under s. 66 there are such things as swiming pools, public parks, gardens, recreation grounds, construction, of dwellings for municipal officers and servants, libraries, museums etc.", "canonical_name": "Jyengar"}}, {"text": "s. 66", "label": "PROVISION", "start_char": 24253, "end_char": 24258, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 25024, "end_char": 25031, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 25154, "end_char": 25163, "source": "ner", "metadata": {"in_sentence": "The Act, as its preamble and the Jong title show, was passed for establishment of municipal corporations in the city of Ahmedabad and Poona and cer\\ain other cities for ensuring better municipal government."}}, {"text": "Poona", "label": "GPE", "start_char": 25168, "end_char": 25173, "source": "ner", "metadata": {"in_sentence": "The Act, as its preamble and the Jong title show, was passed for establishment of municipal corporations in the city of Ahmedabad and Poona and cer\\ain other cities for ensuring better municipal government."}}, {"text": "was apparently modelled after the Bombay Municipal Corporation Act, 1888", "label": "STATUTE", "start_char": 25244, "end_char": 25316, "source": "regex", "metadata": {}}, {"text": "s. 127", "label": "PROVISION", "start_char": 25364, "end_char": 25370, "source": "regex", "metadata": {"linked_statute_text": "It was apparently modelled after the Bombay Municipal Corporation Act, 1888", "statute": "It was apparently modelled after the Bombay Municipal Corporation Act, 1888"}}, {"text": "s. 66", "label": "PROVISION", "start_char": 25719, "end_char": 25724, "source": "regex", "metadata": {"linked_statute_text": "It was apparently modelled after the Bombay Municipal Corporation Act, 1888", "statute": "It was apparently modelled after the Bombay Municipal Corporation Act, 1888"}}, {"text": "s. 127", "label": "PROVISION", "start_char": 26216, "end_char": 26222, "source": "regex", "metadata": {"linked_statute_text": "It was apparently modelled after the Bombay Municipal Corporation Act, 1888", "statute": "It was apparently modelled after the Bombay Municipal Corporation Act, 1888"}}, {"text": "Sec. 82", "label": "PROVISION", "start_char": 26389, "end_char": 26396, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86", "label": "PROVISION", "start_char": 26571, "end_char": 26576, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 88", "label": "PROVISION", "start_char": 26691, "end_char": 26696, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 89", "label": "PROVISION", "start_char": 26909, "end_char": 26916, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 95", "label": "PROVISION", "start_char": 27088, "end_char": 27093, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 96", "label": "PROVISION", "start_char": 27217, "end_char": 27222, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 97 and 98", "label": "PROVISION", "start_char": 27444, "end_char": 27457, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 99", "label": "PROVISION", "start_char": 27579, "end_char": 27584, "source": "regex", "metadata": {"statute": null}}, {"text": "20th of February of", "label": "DATE", "start_char": 27614, "end_char": 27633, "source": "ner", "metadata": {"in_sentence": "It is after all this has been done that the Corporation under s. 99 determines, on or before the 20th of February of each year, the rates at which property taxes under s. 127 (1), but subject to the limitations and conditions laid down in Ch."}}, {"text": "s. 127", "label": "PROVISION", "start_char": 27685, "end_char": 27691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 27826, "end_char": 27832, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 99", "label": "PROVISION", "start_char": 28065, "end_char": 28070, "source": "regex", "metadata": {"statute": null}}, {"text": "These rules contain inter alia Taxation Rules", "label": "STATUTE", "start_char": 28557, "end_char": 28602, "source": "regex", "metadata": {}}, {"text": "Sec. 454", "label": "PROVISION", "start_char": 28631, "end_char": 28639, "source": "regex", "metadata": {"linked_statute_text": "These rules contain inter alia Taxation Rules", "statute": "These rules contain inter alia Taxation Rules"}}, {"text": "s. 455", "label": "PROVISION", "start_char": 28745, "end_char": 28751, "source": "regex", "metadata": {"linked_statute_text": "These rules contain inter alia Taxation Rules", "statute": "These rules contain inter alia Taxation Rules"}}, {"text": "s. 456", "label": "PROVISION", "start_char": 28809, "end_char": 28815, "source": "regex", "metadata": {"linked_statute_text": "These rules contain inter alia Taxation Rules", "statute": "These rules contain inter alia Taxation Rules"}}, {"text": "s. 454", "label": "PROVISION", "start_char": 28899, "end_char": 28905, "source": "regex", "metadata": {"linked_statute_text": "These rules contain inter alia Taxation Rules", "statute": "These rules contain inter alia Taxation Rules"}}, {"text": "s. 457", "label": "PROVISION", "start_char": 28955, "end_char": 28961, "source": "regex", "metadata": {"linked_statute_text": "These rules contain inter alia Taxation Rules", "statute": "These rules contain inter alia Taxation Rules"}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 31724, "end_char": 31733, "source": "ner", "metadata": {"in_sentence": "The Liberty Cinema case(') came for consideration in Devi Das v. Punjab(') w)lere Subba Rao, C.J., speaking for the Court,\n\nsaid:\n\n(ll [1959] Supo."}}, {"text": "Delhi Municipal Corporation Act, 1957", "label": "STATUTE", "start_char": 33159, "end_char": 33196, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Delhi Corporation", "label": "ORG", "start_char": 33237, "end_char": 33254, "source": "ner", "metadata": {"in_sentence": "The Delhi Municipal Corporation Act, 1957, like the present Act, entrusted to the Delhi Corporation two kinds of functions, compulsory anq optional."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 33669, "end_char": 33676, "source": "ner", "metadata": {"in_sentence": "After an analysis of the provisions of the Act, Wanchoo, C.J., pointed out the {9llowing factors which furnished sufficient guidance preventing the delegation becoming invalid-:\n\n(1) that the delegation was to an elected body responsible to the people, including those who pay taxes and to whom the councillors have every four years to turn to for being elected;\n\n(2) that the limits of taxation were to be found in the purposes of the Act for the implementation of which alone taxes could be raised and though this fator was not conclusive, it was nonetheless relevant and must be taken into account with other relevant factors;\n\n(3) tht the impugned s. 150 itself contained a provision ."}}, {"text": "s. 150", "label": "PROVISION", "start_char": 34273, "end_char": 34279, "source": "regex", "metadata": {"statute": null}}, {"text": "1967] 3 S. C.R. 577", "label": "CASE_CITATION", "start_char": 34451, "end_char": 34470, "source": "regex", "metadata": {}}, {"text": "Devi Das", "label": "OTHER_PERSON", "start_char": 34777, "end_char": 34785, "source": "ner", "metadata": {"in_sentence": "Referring to Devi Das's case('), he pointed out that (1) that case did not disapprove Liberty Cinema case( 2 ) was concerned with a sales rax statute and not with a statute dealing with bodies with limited purposes, such as local self governing bodies."}}, {"text": "hoo", "label": "JUDGE", "start_char": 35866, "end_char": 35869, "source": "ner", "metadata": {"in_sentence": "From the provisions of the present Act, cited earlier, it will be seen that though factor (3) of t]le factors rlied on by W ai1.s; hoo, C.J., is absent in s. 127, the rest are present."}}, {"text": "s. 127", "label": "PROVISION", "start_char": 35890, "end_char": 35896, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 36446, "end_char": 36450, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 156 to 168", "label": "PROVISION", "start_char": 37028, "end_char": 37042, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Municiilal Corporation Act, 1888", "label": "STATUTE", "start_char": 37050, "end_char": 37089, "source": "regex", "metadata": {}}, {"text": "s. 157", "label": "PROVISION", "start_char": 38751, "end_char": 38757, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 157", "label": "PROVISION", "start_char": 38950, "end_char": 38956, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 157", "label": "PROVISION", "start_char": 39153, "end_char": 39159, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 157", "label": "PROVISION", "start_char": 44009, "end_char": 44015, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Act, 1888", "label": "STATUTE", "start_char": 44023, "end_char": 44039, "source": "regex", "metadata": {}}, {"text": "Therore", "label": "WITNESS", "start_char": 44833, "end_char": 44840, "source": "ner", "metadata": {"in_sentence": "Therore, the Commissioner having maintained only one assessment-book for the whole city, it is not a valid book."}}, {"text": "MUN!C. CORP. AHMEDABAD", "label": "JUDGE", "start_char": 47946, "end_char": 47968, "source": "ner", "metadata": {"in_sentence": "construed as mandatory ignores (1) the permissive language of the rule, and\n\n' / <\n\n•• r. ..\n..\n\nBAPALAL \\', MUN!C. CORP."}}, {"text": "s. 157", "label": "PROVISION", "start_char": 48045, "end_char": 48051, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 157", "label": "PROVISION", "start_char": 48210, "end_char": 48216, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 157", "label": "PROVISION", "start_char": 48712, "end_char": 48718, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 406", "label": "PROVISION", "start_char": 50162, "end_char": 50168, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 157 to 168", "label": "PROVISION", "start_char": 52344, "end_char": 52358, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_3_961_970_EN", "year": 1971, "text": "' '\n\nPRIYA BALA GHOSH\n\nSURESH CHANDRA GHOSH\n\nMarch 4, 1971\n\n[C. A. VAIDIALINGAM AND A. N. RAY, JJ.)\n\nPenal Code (Act 45 of 1860), s. 494-Proof of second marriap, e-- ,4.dn1ission of second marriage-Relevancy.\n\nThe appellant filed a complaint against her husb, and the respondent, stating that he took a second wife during the subsistence of the appellant's marriage and that the respondent was therefore guilty of an offence under s. 494 I.P.C. The trial coun convicted the respondent.\n\nIn appeal, the Sessions Court found, that in relation to the second marriage, there was no evidence of the performance of Homo and Saptapadi, which were essential rites to be performed for solemnisation of a marriage accdrding to the law prevailing among the parties; and the respondent was acquitted.\n\nIn the High Court, in order to prove the second marriage, the appellant sought to rely upon a statement made by the respondent in answer to an earlier complaint unde+ s. 494 I.P.C., filed by the appellant, wherein the respondent had admitted that he had married a second wife because of the misconduct of the appellant.\n\nThe High Court, however, held that the statement could not be relied upon for proving that the essential ceremonie..,, had been performed and confirmed the acquittal of the respondent.\n\nIn appeal to this Court,\n\nHELD : (I ) The prosecution has to prove that the alleged second marriage, was a valid marriage, duly performed in accordance with the essential religious rites applicable according to the law and custom of the parties. (967 BJ\n\n(2) The statement in the earlier proceedings in relation to the com plaint under s. 494 I.P.C., could not be relied upon because : (a) though strictly it was not a confessicn nevertheless, if acted upon it would tend to incriminate the respondent (who was in the position of an accused) and therefore he was entitled to be given an opponunity of offering his expla11ation, if any, in respect of su.ch incriminating statement; (b) such opportunity was not given to the respondent and it was not put to him when he was examined under s. 342 Cr.P.C., and ( c) such an admission cannot in law be treated~ as evidence of the second marriage having taken place in a bigamy case. [969 D-HJ\n\n(J) In the present case, both the Sessions Judge and the High Court have found that there was no evidence that Homo and Saptapadi, which are essential rites for a marriage according to law governing the parties, had been performed when the respondent is said to have married a second wife, and hence. the respondent was not guilty. [964 C; 970 BC]\n\nBhaurao Shankar Lokhande v. State of Maharashtra, (1965] 2 S.C.R. 837 and Kanwal Ram v. Himacha/ Pradesh Admn. [U66] I S.C.R. 539, followed.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n\nA 275 of 1968.\n\nAppeal by special leave from the judgment and order dated January 19, 1968 of the Calcutta High Court in Criminal Appeal No. 393 of 1966.\n\nS. C. Majumdar and R. K. Jain, for the appellant. ·\n\nThe respondent did not appear.\n\nThe Judgment of the Court was delivered by\n\nVaiilialingam, J.\n\nIn this appeal, by special leave, the appellant challenges the judgment and order of the Calcutta High Court dated January 19, 1968 in Criminal Appeal No. 393 of 1966.\n\nThe appellant filed a complaint dated April 11, 1963 against the respondent, her husband, in the Court of the Magistrate, !st Class, Alipurduar, alleging that he has committed an offence under s. 494 of the Indian Penal Code.\n\nBriefly her case was as follows:\n\nThe respondent had married the appellant in or about 1948 according to Hindu rites and both of them had lived as husband and wife together. But some time before the date of the complaint the respondent began to ill treat her, with the result that she had to reside with her motlier and brother. The respondent illegally married one Sandhya Rani as his second wife on May 31, 1962 and they have been living together as husband and wife.\n\nAs the second marriage has taken place during the subsistenee of the appellant's marriage with the respondent, the second marriage is invalid in law aµd the respondent is guilty of an offence under s. 494 of the Indian Penal Code.\n\nThe respondent pleaded not guilty of the offence alleged against him. He further pleaded that he has never married the appellant and that the entire prosecution case is false.\n\nThe trial Magistrate after considering the evidence adduced both regarding the marriage between the appellant and the respondent as well as the allt:ged second marriage betwet; n the respondent and Sandhya Rani, held that the marriage of the appellant with the Jespondent was established. Notwithstanding the scantiness of the evidence regarding the second marriage, the Trial Magistrate, however, found that the respondent had admitted the second marriage in his objections filed to a claim made by the appellant for maintenance under s. 488 of the Code of Crimi- ,\n\n:ORIYA KALA I'. s. c. GHOSH ( Vaidialingam, /.) 983\n\nnal Procedure. ln this view the Magistrate held that there cannot be any doubt that the respondent has marned Sandhya Rani whlle hts lirst wite, the appellant, was still alive. The Magistrate further 'held that as the marriage with the appell:yit was subsisting, the second marriage is void under s. 17 of the Hindu Marnages Act, 1955 (Act 2.) of 1955), (heremafter to be referred as the Act) and, therefore, the respondent was guilty of the offence under s. 494 of the Indian Penal Code. The respondent was sentenced for the said offence to undergo rigorous imprisonment for one year and also to pay a fine of Rs. :500/- and in default to suffer rigorous imprisonment for a further period of three months. A further direction was given that half the fine, if realised, was to be paid to the complaint, the appellant.\n\nOn appeal by the respondent, the learned Sessions Judge, Jalpaiguri, by his judgment dated April 30, 1966 held that the evidence does not establish that the essential ceremonies to constitute a valid marriage have been performed either in the case of the marriage claimed to have taken place between the appellant D and the respondent or in respect of the alleged second marriage with Sandhya Rani.\n\nIn this view the learned Sessions Judge set aside the order of the magistrate convicting the respondent and sentencing him as mentioned above. The respondent was acquitted of the offence under s. 494 I.P.C.\n\nOn appeal by the appellant, the Calcutta High Court, however, differed from the finding of the learnetl Sessions Judge regarding the invalidity of the marriage between the appellant and the respondent. On the other hand, the High Court held that the evidence establishes that a valid marriage, according to Hindu law, by which the parties were governed, has taken place betwen the appellant and the respondent: But regarding the second marriage, the High Court agreed with the finding of the learned Sessions Judge that the esential ceremonies to constitute a valid marriage have not been proved to have taken place. In this view the High Court confirmed the order of acquittal passed in favour of the respondent and dismissed the apJlellant's appeal.\n\n. Mr. S. C. Majumdar, learned ceunsel for the appellant, has raised two contentions before us : ( 1) that the view of the High Court that the essential ceremonies to constitute a valid marriage have not been proved to have taken place regarding the second marriage of the respondent with Sandhya Rani, is erroneous and contrary to the evidence adduced in the case! and (2) In any event in view of the specific admission made by the respondeni in Ex. 2 about the second marriage and having ilue regard to the other surrounding circumstances, it must be held that the resp:mdent i~ guilty of the offence under s. 494 l.P.C. The respondent\n\n964 SUPREfy!E COURT REPORTS ' [1971]3 S:c.R.\n\nhas not appeared before us and we have to proceed on the basis.\n\nA t\n\nof the fuiding of the learned Sessions Judge, accepted by the High Court, that the appellant was married to the respondent arid that the marriage was subsisti~ on the date of the alleged second marriage.\n\nBoth the contentions of the learned counsel for the appellant B can be dealt with together. It ha& been poi.rited oufby the learned Sessions Judge that ooth sides ; igreed t!lift according to the law • prevalent amongst the parties Hom/J and Saptapadi were essential rites to be performed to constitute a valid marriage. Both sides > also agreed before the Court that there was no specific eVidence as to the performance of Saptapadi and Homo in the case of the c alleged marriage of the respondent with Sandhya Rani.\n\nTl).ere.. fore, the main question that has to be considered is whether the performance of the above ceremonies .and rites have to be e.stablished by evidence specifically before the respondent could be convicted under s. 494 I.P.C.\n\nThe findings of the High Court are that the Priest, P.W. 6, who claims to have officiated at the D marriage of the respondent and Sandhya Rani has given evidence to the effect that the marriage was solemnised accordiri:g to Hindu rites.\n\nHe bas not said anything more than. this.\n\nThe other evidence adduced' bas not been considered to be of any use in this regard. The further finding of the High Court is that no evidence was adduced that the Homo and Saptapadi were performed in the case of the marriage between Sandhya Rani and the respondent F. and that it bas also not been proved thattbere wa5 any custom prevalent I amongst the parties that those essential ceremonies .are not necessary for the purpose of solemnization of the marriage.\n\nAccording to Mr. Majuindar, when once the priest has given evidence to the effect that the marriage between the respondent .F and Sandhya Rani has been performed, it follows that. an the • essential ceremonies that are necessary to constitute a valid marriage must be presumed to Ji.ave been performed. In any event, when there is evidence, t!J show that the marriage as a fact has taken place, the presumption is that it has taken place according to Jaw.\n\nIn this connection oM'r. Majumdar referred us to various G English decisions w!Jere on the basis of certain evideuce regarding the taking place of marriage between the parties a presumption has been drawn that the marriage must have been solemnized according to law.\n\nIn our opinion, it is unnecessary to refer to J those cases cited by the learned counsel as the position is coneluded against the appellant by the decisions of this Court on H both points. Sei; tion 5 of the Act Jays down conditions for a ..\n\nHindu marriage.\n\nIt will be seen that one of the conditions is that referred to. iii clause ( i), namely, that neither of the parties\n\nl'RlYA BALA v. s. c. Gl~OSH (Vaidia/ingam, J.) 965\n\ni A has a spouse living at the time of the marriage. Section 7 dealing with the ceremonies for Hindu marriage iS as follows :\n\n\"Section ?-Ceremonies fOr a Hindu marriage.\n\n(I) A Hindu marriage may bi; sqlemnized in accordance with the customary rites ii!Jd ceremonies of B either party thereto.\n\n(2) Where such rites and ceremofiies include the Saptapadi (that is, the taking of sevn steps by the bridegroom and the bride jointly before the sacred fire), the marriage \\JP.comes a complete c and binding when the sventh step is taken.\"\n\nWe have ponited out that in the case before us both sides were agreed that according to the law prevalent amongst them Hom\" and Saptc.padi were essential rites to be porformed for solemnization of the marriage and .there is no specific evidence regarding the performance of these essential rites.\n\nThe parties have also D not proved that they are governed by any custom under which these essential ceremonies need not be performed.\n\nSection 11 of the Act deals with void marriages. One of the conditions, if contravened, which makes a marriage solemnized after the commencement of the Act, null and void is il any party thereto have a spouse living at the time pf the marriage.\n\nE Section 17 relating to punishment of bigamy is as follows :\n\n\"Section 17 Punishment of bigamy :\n\nAny marriage ben two Hindlis solemnized after the commencement of i£ Act is void if at the date of\n\n}' such marriage either party had a husband or wife living: and the provisions of sections 494 and 495 of the lndian Penal Code shall apply accordingly.\"\n\n Again in. the ase before us there is no contr\\)v.ersy that the second marriage ts stated to have taken place 'after the C!>lllmencement of the Act during the subsistance of the first marriage.\n\nG If the second marriage has taken place, it will be void under the circumstances and s. 494 of the Indian Penal Code will be attracted. Section 494 of the Indian Penal Code is as follows :\n\n\"Section 494-Marrying again during lifetime of husband or wife-\n\nH Whoever, having a husband or wife living, marries \"\n\nin any case in. which such marriage is void by reason of its taking place durinl( the life of such husband or wife shall be punished with imprisonment of either descrip:\n\n9 ti Ii\n\nSUPREME COURT REPORTS pn!JJ s.c.R\n\ntion for a term which may extend to seven years, and shall also be liable to fine.\"\n\nIn Bhaurao Shankar Lokhande and ano1her v. State of Maharashtra and another,(') the question arose whether in a prosecution for bigamy under s. 494 I.P.C. it was necessary to establish that the second marriage had been duly perfonned in accordance with the essential religious rites applicable to the form of marriage gone through. The first appellant therein .had been convicted for an offence under s. 494 I.P.C. for going through a.marriage which was void by reason of its taking place during the life time of the previous wife.\n\nThe said appellant contended that it was necessary for the prosecution to establish that the alleged second marriage had been duly performed in accordance with the essential religious rites. The State, on the other hand, contended that for the commission of the offence under s. 494 l.P.C. it was not necessary that the second marriage should be a valid one and a person going through any form of marri~ during the life time of the first wife would be .guilty of the offence.\n\nThis Court rejected the contention of the State and observed as follows :\n\n\"Prima facie the expression 'whoever ..... marries' must mean 'whoever .... marries validly' or whover ..... marries and whose marriage is a valid one.' If the marriage is not a valid one, according to the law applicable to the parties. no question of its being void by reason of its taking place dµring the life time of the husband or wife of the person marrying arises. If the marriage_ is not a valid marriage, it is no marria)?e in the eye of law.\" Again in interpreti11g the word \"solemnize\" in s. 17 of the\n\nAct, it was stated : }' \"The word 'solemnize' means in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the. Shorter Oxford Dictionary.\n\nIt follows, therefore, that unless the marriage . is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solem- G nized'. It is therefore essential for the ourpose of s. 17 of the Act, that the marri'lge to which s. 494 J.P.C._\n\napplies on account of the provisions of the Act. should have been celebrated with oioner ceremonies and in due form.\n\nMerely going through certain ceremonies th the intention that the oartie~ be taken to be murned.\n\nH will not make them ceremonie' nre•cribed bv law or approved by any established custom.\"\n\n(!) [1965) 2 S.C.R. 8~7.\n\nPRIYA BALA v. s. c. GHOSH (Vaidiallngam, I.) 967\n\nFrom the above quotations it is cl~ that if the al.leged second marriage is not a valid one accordmg to. law pphcable to !he parties, it will not be void by reason of its taking plae dunpg the life of the husband or the wife of the person marrytnj! so as to attract s. 494 I.P.C. Again in order to hold that the .. second marriage has been solemnized so. as to attract s. 17 of the Act, it is essential that the second mamage should have been celebrated with proper ceremonies and in due form. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the. essential ceremonies for a valid marriage have been performed.\n\nAfter referring to .the P!'S&age in Mull~'s Hindu Law 12th Bdn. at page ~15 dealmg with the essential ceremonies ihich have to be performed for a valid marriage, this Court, on the . .evidence held that the prosecution hac:J neither established that the essential ceremonies had been performed nor that the performance of the essential cermonis had been abrogated by the custom governing the community to which the parties belonged. In this view it was held that the prosecution in that case had failed to establish that the alleged second marriage had been perfrmed in accordance with the requirement of s. 7 of the Act. The effect of the decision, in oµr opinion, is that the prosecution has to prove that the alleged second marriage had &en dlJ}y performed in accordance with the essential reli¢ous rites a, oplicable to the form of marriage gone through by the parties and that the said marriage must be a valid one according to law \" applicable to the parties.\n\n· Tn Kanwal Ram and others v.\n\nThe Himacha/ Pradesh Admn.(1) this Court reiterated the principles laid down is the . earlier decision referred to above that in a prosecution far bigamy the second marriage has to be proved as a fact and it inust also be proved that the necessary ceremonies had been perfOrmed.\n\nAnother prOPOSition laid down bv this decision, which answers the second contention of the learned counsel for the appellant, is that admission of marriage bv an accused is no evidence of marriage for the nuroose of provinir an offence of bie:amv or adulterv. On the evidence it was held in the said decision that the witnesses have not nroved that the essential ceremonies had been uerformed.\n\nIt was contended that an admission made by the accused ree:ardine: the second marrial!'e is conclusive of the fact of a second marriae:e havin!! taken nlace and that without anv other evidence\n\na conviction could be based on such admission.\n\nThis Court rejected the said contention statine: :\n\n\" .......... it is clear that in law such admission _is not evidence c; if the fact of the second marria!!e-havinl?\n\n1. r!Qi; i 1 ~.r.R. <~Q\n\ntaken place. In a bigamy case, the second marriage as A a fact, that is to say, the ceremonies constituting it must be proved : Empress v. Pitambur Singh (1), l!.fr]press v.\n\nKa~/11(2), Archbold Criminal Pleading \"Evidence a11d Practice (35th ed.) Art. 3796. In Kallu's case and in Morrie< v. Mil/er~ 8 ) it has been held 'that admi;; ion of marriage by the accused is not evidence of it for the B purpose of proving marriage in an adultery or bigamy case . ..... \" The dedsion in R. V. Robinson(') was relied on in the above decision on behalf of the prosecution in support of the proposition that it was not necessary to prove that all the ceremonies required for the particular form of marriage had been .observed.\n\nC After a consideration of the facts in the English decision, quoted above, this Court has expressed the view that the said decision does not support the said proposition enunciated on behalf of the prosecution.\n\nWe are only adverting to this fact, because the English decision was again referred to us by Mr. Majumdar; and it is not necessary for us to refer to the same over again excepting D to say that the said decision does not advance the case of the appellant.\n\nAs poinied out earlier, this Court in Kanwal Ram's c<1se has laid down that an admission is not evidence of the fact that the second marriage has taken place after the ceremonies constifuting the same have been gone through.\n\nAs the High Court has dealt with the question regarding the admissibility of°llmnission contained in Ex. 2, we will briefly refer to the nature of the admission that was sought to be relied on against the respondent by the complainant. But we make it clear that the discussion regarding this aspect is oilly to deal with the contention advanced on behalf of the appellant and to reject the same.\n\nThe trial Magistrate whose decision was iri fav<>ur of -tile appellant has himself expressed the view that the evidence on, the side of the aopeilant\n\nregl!rdimr the alleged secorid marria!!:e is very scanty. But that court held that the respondent has admitted the second marriage in Ex. 4, which was ari objection filed by the respondent in an anplication filed by the aopellant for, maintenance under s. 488 Cr. P.C. We have )(one throu!!:h the said objection oetition. The resoondent has alleged various acts of misconduct against the appellant and he has merely_stated that he was coinoe!led to marrv\n\nagain.- But no other narticulars have heen given in the said objection oetition. We are of the view that no admission of the second marria!!:e by the reoondent with Sandbva Rarii can be culled out from Ex. 4. Jn.fact the trial court has based.its firding\n\nI. m~01 t. L. R. 5 C•l.566.\n\n3. 4 Jlurr. 2057: 98 E.R. 73.\n\n2. [18~2) I.LIU All. 233.\n\n4. [193811 All. E.R. JOI.\n\nPRJYA BALA v. s. c. GHOS~ (Vaidialingam, 1'.) 9.69\n\nregarding the second marriage alrilost exclusively on what it considered to be an admission contained in Ex. 4. As there is no such admission, the finding of the magistrate was clearly erroneous.\n\nBefore the High Court, however, we find thJt the appellant did not place any reliance on Ex. 4. On the other hand she relied on an. admission stated to have been contained in Ex. 2.\n\nThe appellant filed a complaint under>.· 494 1.P.C. against the respondent on an earlier occasion on the ground that the latter had contracted a second marriage with Sandhya Rani.\n\nThat complaint was, however, withdrawn as the particular court had no jurisdiction.\n\nIn that proceeding the appellant wanted the said Sandhya Rani to be summoned as a witness.\n\nTo that application, the respondent filed an objection Ex. 2 wherein no doubt, he has admitted that Sandhya Rani is his wife and that he married her because of the misconduct of the appellant. The High Court , considered the question whether this statement of the respondent in Ex. 2 that he has married Sandhya Rani can be treated as an admission of the fact of the second marriage. The High Court was of the viw that the statement contained in Ex. 2 would really be a confession statement and.declined to act on the same for two rea'sOn.s : firstly, that the statement, in Ex. 2 had not been put to the respondent when he was examined under s. 342 Cr. P.C. so as to give him an opportunity to explain the statements contained therein; secondly, that even if the statement contained in Ex. 2 can be taken intq account by themselves they will not be proof of the fact that all the essential ceremonies necessary for a marriage have been performed.\n\nIn our view the reasons given by the High Court are substantially correct. Though strictly the statements contained in Ex. 2 may not be a confession, nevertheless, these statements, if acted upon, tend to incriminate he respo'iident.\n\nThe resoondent being in the oosition of an accused was entitled to be given an oooortunity of offering his explanation, if any. in respect of the incriminating statement contained in Ex. 2.\n\nSuch an ?PPOrtunitv has not been admittedly given tp the respondent.\n\nH1~ statement in Ex. 2 has not been put to his when he was examined under s. 34'2 Cr. P.(;'.\n\nFurther as pointed out by this Court in Kawai Ram's case the admission in Ex. 2 cannot in law be treated as evidence of the second marriae having takn place. in an adultery or begamy case: r:d that m such cases 1t must be proved by the prosecution that the second marriaee as a fact has taken place after the performance of the essntial ceremonies.\n\nMr. Majumdar relied on the decision of this Court in Bharat Singh and another vs. Bhagirathi(1) to the effect thiit the admis-\n\n1. [1966] I S.C.R. 606. . ... - .\n\nsions made by a party are substantive evidence by themselves in view of ss. 17 and 21 of the Indian Evidence Act, and that if those admissions have been duly proved they can be relied on irrespective of the fact whether the party making them appear in the witness box or not or irrespective of the fact whether such a party had or had not been confronted with those admissions.\n\nWe do not think that the said decision in any way supports the appellant with regard to prosecution for bigamy under s. 494 I.P.C.\n\nTo conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the Homo and Saptapadi are the essential riles-for a\n\nmariage according to the law governing the parties and that there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. No reliance can be placed on the admissions stated to be contained in Ex. 2.\n\nFor all the above reasons the contentions of Mr. Majumdar have to be rejected.\n\nThe appeal fails and is dismissed.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 78, "entities": [{"text": "PRIYA BALA GHOSH", "label": "PETITIONER", "start_char": 5, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "PRIYA BALA GHOSH", "offset_not_found": false}}, {"text": "SURESH CHANDRA GHOSH", "label": "RESPONDENT", "start_char": 23, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "SURESH CHANDRA GHOSH", "offset_not_found": false}}, {"text": "March 4, 1971", "label": "DATE", "start_char": 45, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "' '\n\nPRIYA BALA GHOSH\n\nSURESH CHANDRA GHOSH\n\nMarch 4, 1971\n\n[C. A. VAIDIALINGAM AND A. N. RAY, JJ.)"}}, {"text": "A. N. 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"label": "DATE", "start_char": 3881, "end_char": 3893, "source": "ner", "metadata": {"in_sentence": "The respondent illegally married one Sandhya Rani as his second wife on May 31, 1962 and they have been living together as husband and wife."}}, {"text": "s. 494", "label": "PROVISION", "start_char": 4149, "end_char": 4155, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4163, "end_char": 4180, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 488", "label": "PROVISION", "start_char": 4896, "end_char": 4902, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 5278, "end_char": 5283, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Marnages Act, 1955", "label": "STATUTE", "start_char": 5291, "end_char": 5315, "source": "regex", "metadata": {}}, {"text": "s. 494", "label": "PROVISION", "start_char": 5437, "end_char": 5443, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Marnages Act, 1955", "statute": "the Hindu Marnages Act, 1955"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5451, "end_char": 5468, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sessions Judge, Jalpaiguri", "label": "COURT", "start_char": 5841, "end_char": 5867, "source": "ner", "metadata": {"in_sentence": "On appeal by the respondent, the learned Sessions Judge, Jalpaiguri, by his judgment dated April 30, 1966 held that the evidence does not establish that the essential ceremonies to constitute a valid marriage have been performed either in the case of the marriage claimed to have taken place between the appellant D and the respondent or in respect of the alleged second marriage with Sandhya Rani."}}, {"text": "April 30, 1966", "label": "DATE", "start_char": 5891, "end_char": 5905, "source": "ner", "metadata": {"in_sentence": "On appeal by the respondent, the learned Sessions Judge, Jalpaiguri, by his judgment dated April 30, 1966 held that the evidence does not establish that the essential ceremonies to constitute a valid marriage have been performed either in the case of the marriage claimed to have taken place between the appellant D and the respondent or in respect of the alleged second marriage with Sandhya Rani."}}, {"text": "s. 494", "label": "PROVISION", "start_char": 6393, "end_char": 6399, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6400, "end_char": 6405, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 6440, "end_char": 6459, "source": "ner", "metadata": {"in_sentence": "The respondent was acquitted of the offence under s. 494 I.P.C.\n\nOn appeal by the appellant, the Calcutta High Court, however, differed from the finding of the learnetl Sessions Judge regarding the invalidity of the marriage between the appellant and the respondent."}}, {"text": "s. 494", "label": "PROVISION", "start_char": 7769, "end_char": 7775, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 494", "label": "PROVISION", "start_char": 8857, "end_char": 8863, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 8864, "end_char": 8869, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sandhya Rani", "label": "WITNESS", "start_char": 9002, "end_char": 9014, "source": "ner", "metadata": {"in_sentence": "Tl).ere.. fore, the main question that has to be considered is whether the performance of the above ceremonies .and rites have to be e.stablished by evidence specifically before the respondent could be convicted under s. 494 I.P.C.\n\nThe findings of the High Court are that the Priest, P.W. 6, who claims to have officiated at the D marriage of the respondent and Sandhya Rani has given evidence to the effect that the marriage was solemnised accordiri:g to Hindu rites."}}, {"text": "Majuindar", "label": "OTHER_PERSON", "start_char": 9635, "end_char": 9644, "source": "ner", "metadata": {"in_sentence": "According to Mr. Majuindar, when once the priest has given evidence to the effect that the marriage between the respondent .F and Sandhya Rani has been performed, it follows that.", "canonical_name": "Majuindar"}}, {"text": "Majumdar", "label": "OTHER_PERSON", "start_char": 10100, "end_char": 10108, "source": "ner", "metadata": {"in_sentence": "Majumdar referred us to various G English decisions w!Jere on the basis of certain evideuce regarding the taking place of marriage between the parties a presumption has been drawn that the marriage must have been solemnized according to law.", "canonical_name": "Majuindar"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 10826, "end_char": 10835, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 11742, "end_char": 11752, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 11990, "end_char": 12000, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 12052, "end_char": 12062, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 494 and 495", "label": "PROVISION", "start_char": 12269, "end_char": 12289, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 12304, "end_char": 12314, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 494", "label": "PROVISION", "start_char": 12623, "end_char": 12629, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12637, "end_char": 12654, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 494", "label": "PROVISION", "start_char": 12674, "end_char": 12685, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12693, "end_char": 12710, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 494", "label": "PROVISION", "start_char": 12729, "end_char": 12740, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 494", "label": "PROVISION", "start_char": 13289, "end_char": 13295, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 13296, "end_char": 13301, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 494", "label": "PROVISION", "start_char": 13549, "end_char": 13555, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 13556, "end_char": 13561, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 494", "label": "PROVISION", "start_char": 13957, "end_char": 13963, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 14733, "end_char": 14738, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 15146, "end_char": 15151, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 494", "label": "PROVISION", "start_char": 15192, "end_char": 15198, "source": "regex", "metadata": {"statute": null}}, {"text": "[1965) 2 S.C.R. 8", "label": "CASE_CITATION", "start_char": 15519, "end_char": 15536, "source": "regex", "metadata": {}}, {"text": "s. 494", "label": "PROVISION", "start_char": 15857, "end_char": 15863, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 15864, "end_char": 15869, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 17", "label": "PROVISION", "start_char": 15960, "end_char": 15965, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 16904, "end_char": 16908, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 3796", "label": "PROVISION", "start_char": 18656, "end_char": 18665, "source": "regex", "metadata": {"statute": null}}, {"text": "Kallu", "label": "OTHER_PERSON", "start_char": 18670, "end_char": 18675, "source": "ner", "metadata": {"in_sentence": "In Kallu's case and in Morrie< v. Mil/er~ 8 ) it has been held 'that admi;; ion of marriage by the accused is not evidence of it for the B purpose of proving marriage in an adultery or bigamy case . ..... \""}}, {"text": "Kanwal Ram", "label": "OTHER_PERSON", "start_char": 19635, "end_char": 19645, "source": "ner", "metadata": {"in_sentence": "As poinied out earlier, this Court in Kanwal Ram's c<1se has laid down that an admission is not evidence of the fact that the second marriage has taken place after the ceremonies constifuting the same have been gone through.", "canonical_name": "Kanwal Ram"}}, {"text": "s. 488", "label": "PROVISION", "start_char": 20624, "end_char": 20630, "source": "regex", "metadata": {"statute": null}}, {"text": "Sandbva Rarii", "label": "OTHER_PERSON", "start_char": 20992, "end_char": 21005, "source": "ner", "metadata": {"in_sentence": "We are of the view that no admission of the second marria!!:e by the reoondent with Sandbva Rarii can be culled out from Ex."}}, {"text": "s. 342", "label": "PROVISION", "start_char": 22630, "end_char": 22636, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 23506, "end_char": 23511, "source": "regex", "metadata": {"statute": null}}, {"text": "Kawai Ram", "label": "OTHER_PERSON", "start_char": 23566, "end_char": 23575, "source": "ner", "metadata": {"in_sentence": "Further as pointed out by this Court in Kawai Ram's case the admission in Ex.", "canonical_name": "Kanwal Ram"}}, {"text": "ss. 17 and 21", "label": "PROVISION", "start_char": 24111, "end_char": 24124, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 24132, "end_char": 24151, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 494", "label": "PROVISION", "start_char": 24535, "end_char": 24541, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 24542, "end_char": 24547, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]} {"document_id": "1971_3_971_976_EN", "year": 1971, "text": "PRITAM SINGH\n\nSTATE OF HARYANi\\\n\nMarch 15, 1971\n\n[C. A. VAIDIALINGAM AND A. N. RAY, JJ.)\n\nPolice Act, 1861, s. 42-Period of lilnitation for prosecution.\n\nSupre1ne' Court-Appeal-New point-Can be permitecl to be urged if n; ises pure question of law aml does not require investigation buo facts.\n\nThe appellant was a constable in the police force of Haryana State.\n\nAt the relevant time he was pocted to do duty at the police lines, Kamal.\n\nIt was reported by the Lines Officer that he was. not present at the roll call on the evening of November 25. 1963. The Judicial Magistrate gave him a notice in January J 966 asking him to explain why he should not be held guilty under s. 29 of the Police Act 1891 being absent on the aforesaid date.\n\nThe appellant explained that he was mentally upset on account of the.death of two near relatives and was himself ill. The Magis trate held that the ilPPellant was technically guilty, even though his case required sympathetic consideration.\n\nIn this view he sentenced the appel lant to pay a fine of Rs. 51 • pnd in default to undergo simple imprison ment for seven days.\n\nAppeals before the Sessions Judge and the High Court failed.\n\nIn appeal to this Court by special leave it was contended on behalf of the appellant, that since more than three months, had inter vened between the commission of the alleged offence and the commence-. mcnt of .the prosecutioni the trial was time-barred by limitation under s. 42 of the Police Act. This point was raised in this Court fdr the first time but had been stated in the statement of propositions of law to be advanced before the Court. and a copy of the same had been supplied to the counsel for the State.\n\nAllowing the appeal,\n\nHELD : (i) The question of limitation being purely one of law requiring no fresh investigation into facts. the appellant could he per milled to raise it for the first time in this Court. [973 HJ\n\n(ii) The appellant's prosecution was initiated against him for some thing done under the provisions of the Act. namely non-compliance with the requirement to be on duty as required under the Police Act. There fore under s. 42 of the Act the prosecution should have been commenced against the appellant within three months of the commission of the act complained of.\n\nThe act complained of was alleged to have been committed on November 25. 1963.\n\nEven treating the notice issued by the judicial magistrate as amountingto commencement of prosecution, it took place oniy on January 10, 1966, long after the expiry of three months from the date of the commission of the offence.\n\nTherefore the prosectl tion commenced against the appellant was barred by limitation under s. 42 of the Act. [974 DEl\n\nMaulud Ahmad v. Stllte of Utrar Prade.•h. [19611 Supp. '! S.C.R. 38, H distinguished.\n\nCRIMINAL APPELLATE JuRJSD!CT!ON: Criminal Appeal No. 240 of 1968.\n\nAppeal by special leave from the judgment and order dated February 8, I 968 of the Punjab and Haryana High Court in Criminal Revision No. 237 of 1967.\n\nS. Lakshminarasu. for the appellant-\n\nB. D. Sharma and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nVaidialingam, J.\n\nIn this appeal, by special leave, the appellant accused challenges the judgm_ent and order dated February 8, 1968, of the Punjab & Haryana High Court in Crim ind Revision No. 237 of 1967, confirming the conviction and sentence passed against him for an offence under s. 29 of the Police Act, 1861 (hereinafter to be referred as the Act).\n\nThe appellant was at the relevant period a constable having roll number 857.\n\nHe was originally recruited in 1950 to the police service in the composite Punjab State; and on the formation of the State of Haryana, he was aJlotted to Haryana.\n\nThe appellant was posted to do duty at the police lines, Karnal, before November 25, 1963.\n\nIt was reported by the Lines Officer on Npvembcr 25, 1963 that when roll-call was taken on the evening of that day at about 6.30 p.m., the appellant was found absent.\n\nThe report also refers to the absence of certiiin other police officers, with whom we are not concerned.\n\nThe judicial magistrate, Karna], issued what is stated to be a notice dated January 10, 1966 to the appellant, alleging that he was found absent from duty from the police lines at the time of roll-call on November 25, 1963.\n\nHe was asked to explain why he should not be held guilty under s. 29 of the Act.\n\nThe appellant stated that he would neither plead guilty nor would he admit that he remained absent from duty.\n\nHe has further stated that he was mentally upset in view of the sudden deaths of his mother and brother-in-law, and also due to his children being cut off from him.\n\nHe wound up his answer by saying that he was under medical treatment in the civil hospital, Kamal, and the doctor therein sent him to Patiala.\n\nHe was tried for an offence under s. 29 of the Act on the ground that he was absent from duty on November 25, 1963.\n\nThe judicial magistrate, by his order dated March 4, 1966, found the appellant guilty of the offence and sentenced him to pay a fine of Rs. 5/- and in default to undergo simple imprisonment for\n\nseven days.\n\nThe learned magistrate considered the plea of the H accuSed regarding his having undergone treatment in the civil hos- J, pita!, as also the evidence of the doctor who has spoken to this fact. and held that the case of the accused requires a very sym-\n\nPR!TAM I'. HARYANA ( Vaidia/ingam, ].) 973\n\npathetic consideration.\n\nBut .nevertheless the magistrate found that as the appellant was technically guilty of the offence under s. 29 of the Act, with which he was charged, he has to be punished Accordingly, he convicted him and imposed tbe fine, as stated above.\n\nThe appellant challenged his conviction and sentence before the learned Sessions Judge as well as the High Court, but was unsuccessful.\n\nThough several contentions regarding the legality of the conviction have been taken by Mr. Lakshrt1i, narasu, learned counsel nominated to represent the appellant by the Legal Aid Society of the Supreme Court Bar Association, in the view that we take regarding the prosecution being barred by limitation under s. 42 of the Act, it becomes unnecessary to refer to those contentions and deal with them.\n\nWe have already referred to the fact that the allegations against the appellant related to his absence from duty on November 25. 1963, stated to be an offence under s. 29 of the Act.\n\nThe notice issued by the judicial magistrate was on January 10, 1966.\n\nThe contention that is taken by Mr. Lakshminarasu based on s. 42 of / the Act is that the prosecution against the appellant has been commenced beyond the period of three months, as provided in s. 42 of the Act, and therefore, the trial and other proceedings leading upto the cqnviction of the appellant are illegal and void.\n\nThe counsel pointed out that the act complained of was the appellant's absence from duty at the time of the roll-call on November 25, 1963.\n\nThe earliest step taken in this cqse for prosecuting the appellant was on January l 0, 1966 when tlie judicial magistrate issued the notice to the aP.pellant calling upon him to explain why he should not be held guilty under s. 29 of the Act. That notice was issued long after the expiry of three months from the date of the commission of the offence complained of.\n\nIn fact. Mr. Lakshminarsu argued that the date of. filing the complaint will be the date when prosecutiqn is commenced.\n\nBut he was willing to assume that the issue of the notice on January 10, 1966., is a step in the prosecution.\n\nEven then he argued that the prosecution is barred under s. 42 of the Act.\n\nIt is no doubt true that this point has not been taken as such before 8jlly of the courts; but in the statement given on February 9, 1971 regarding the propositions of Jaw to be advanced before this Court, this contention has been specifically raised.\n\nA copy of the said statement has been given to the counsel for State the same day. However, the point that is raised is a pure question of law, not involving any further investigation of facts.\n\nWe theref?re permitted counsel for the appellant to raise this legal contention.\n\nThe question theretore is wherher the prosecution initiaied A agains, me appeilant m this case is barred by hmitauon under s. 4L of the Acr.\n\nThe material part of s. 42, reievaint for the present purpose reads as follows :\n\n\"All . . . prosecutions against any person, which may be lawfully brought for anything oone or intended to oe done unoer the provisions of this Act, or under the general police powers hereby given shat! be commenced within three months after the act complained of shall have been committed, and not, otherwise, ..\n\nFrom the section quoted above, it will be clear that the period of three months prescribed for commencing a prosecution under the said section is only with respect to prosecution of a person 1or something done or ii!ltended to be done by him under the provisions of the Police Act or under the general police powers given by the Act. lt is clear that the appellant's prosecution was initiated against him for something done under the provisions of the Act, namely, non-compliance with the requirement to be on duty as required under the Police Act.\n\nTherefore, under s. 42 of 1the 'Act, the prosecution should have been commenced against the appellant within three months after the act complained of has been committed.\n\nThe act complained of was alleged to have been committed qn November 25, 1963.\n\nEvP, n treating the notice issued by the judicial magistrate is amounting to commencement o.f prosecution, it took place only on January 10, 1966, long after the expiry of three months from the date of the commission of the offence.\n\nTherefore, the prosecution commenced against tl1e appella, nt is barred by limitation under s. 42 of the Act.\n\nIn this case there is no controversy that the offence with which the appellant was charged was one under s. 29 of the Act and for the said offence he was tried and convicted.\n\nMr. B. D.\n\nSharma, learned sounsel for the respondent State, faced with this situation urged that in the notice issued by the judicial magistrate, Kania!, to the appellant on January 10, 1966, it was specifically stated that the appellant was absent not only on November 25, 1963, but that he also continued to be absent as before.\n\nAccording to the learned counsel, this clearly means that evn on the date when 'the ni>tice was issued to the appellant, th.at is, on J:rntJa\"y iO, 1966, the appellant was absent and was guilty of an offence under s. 29 of the Act and hence the prosecution has commenced within the period menti{)\\l1ed in s. 42 of the Act.\n\nWe are not inclined to accept this contention.\n\nA perusal of the order o\" tl1e trial magistrate, the learned Sessions Judge and the Hih Court. dearly shows that the appellant was tried on the specifil d1arge of having absented himself from duty on November 25,\n\nPRITAM v. HARYANA ( Vaidia/ingam, J.) 97~\n\n1963.\n\nThe notice issued by the magistrate on January 0, 1966 also refers to the report of November 25, 1963 about the appellant's being absent on that evening at roll-call.\n\nFor his absence on November 25, 1963 he was called upon to show cause why he should not be held guilty under s. 29 of the Act.\n\nFurther it is also seen from the examination of the accused under s. 342. Cod11, of Criminal Procedure, ·hat a specific question was put 1IO him \"It is in evidence against you that you were absent from the Police Lines Kamal on 2S-ll-63 and as such were marked absent at the time of Roll-call.\n\nWai do you say to it?\"\n\nWe may also refer to the decision of this Court in Maulud allegation against the ap_pellant related to his absence on November 25, 1963 and it was the evidence in that regard that was put to the appellant for offering his explanation.\n\nAll the above facts clearly show that the appellant was tried and convicted for an offence under s. 29 of the Act in which case the prosecutioin for such an offence should have been done within the time laid down thereunder.\n\nWe may also refer to the decision of this Court in Maulud Ahmad v. State of Uttar Pradesh(') wherein it has been he!J\n\nthat if there is a prosecution of a police officer for an offence under s. 29 of the Act, such a prosecution should be one within the period of limitation mentiOillied in s. 42 of tl:e ct. In that case the appellant therein, a Head constable, was charged and tried, along with another person, for various offences under the Ip.dian\n\nPenal Code, such as ss. 304A and 2181109.\n\nThe other accused was acquitted but the head CO!Ili>table was convicted under s. 218\n\nI.P.C.\n\nOne of the contentions raised by the appellant before this Court was that as the prosecution was iaunched against him more than three months after the commission of the offence, it was barred by limitation under s. 42 of the Act.\n\nThis Court after a perusal of the scheme c.f ss. 36 and 42 of the Act rejected the cointention of the appellant.\n\nThis Court held that the head constable was prosecuted and convicted for offences not under the Act but under the Ind!an Penal Code.\n\nTo such prosecution, it was held that s. 42 did not apply.\n\nOn the other hil/fid, it was held that s. 42 of the Act applies to a prosecution against a person for an offence under s. 29 of the Act.\n\nThe conclusion arrived at by us that the prosecution in the case on hand is barred by s. 42 of the Act is also supported by the decision quoted above.\n\nTei conclude, it is clear that the proseution gainst the appellant has been commenced beyond the penod of three months imd as such it is barred by lirliitation under s. 42 of the Act. f{ence\n\n were stressed: _(!) None of the 200 odd persons who purchased the policy issued under the scheme received Rs. 2309. 50, the assured amount in the policy: (2) The large amounts of Rs. 90,750 and Rs. 5,52,587.95 were. detained by the respondents and showed the extent of wrongful gain by them. (3) The policy holders had no control over other policy holders which would assure continuance of the scheme. (4) D Merely because some persons receive some amount it could not be inferr~ ed that the scheme was not fraudulent. (5) The evidence showed that tho names entered in columns 3, 4, S, 6 and 7 of the pamphlet, issued by the respondents were bogus and that 2696 money orders were sent back to the remitter, as the persons were not traceable because of wrong address on the form.\n\nHELD : As held by the Calcutta High Court in Radha Ballav Paf J E case and Harida:1 Barafs case there was an element of speculation in money circulation schemes, but those who ran them could not be held guilty of cheating unless there was misrepresentation or dishonest concealment of facts. It could not be said in the present case that the respondents had deceived the public aod thereby induced it to contribute money to the scheme. The appeal must accordingly fail.\n\n[131H-132F]\n\nRedha Ballav Pal v. Emperor, A.I.R. 1939 Cal. 327 and Hari Das F Baral v. Emperor, 1939 II I.LR. Cal. 81, approved.\n\nNadir Barga Zaidi v. State of U.P. A.I.R. 1960 All. 103 and ln re M. K. Srinivasan, A.I.R. 1944 Mad 410, referred to.\n\nIt is for the legislature to intervene if it wants to protect people who participate in these schemes, knoWing that sooner or later the schemea are bound to fail. [132F-G)\n\nCRIMINAL APPELLATB JURISIDCl10N: Criminal Appeal No. 142 of 1968.\n\nAppeal by special leave from the judgment and order dated September 8, 1967 of the Madhya Pradesh High Court in Criminal Appeal No. 81 of 1966.\n\nI. N. Shroff, for the appellant.\n\nU. P. S.iri.gh and Nur-ud-din Ahmed, for the respondent.\n\ni26\n\nSUPRBMB COURT REPORTS [1971J;':Sl.(PP. s.c.~.\n\nThe Judgment of the Court was delivered by\n\nSikri, C. J~This appeal by special leave by the State cf Madhya Pradesh is against the judgment of the High Court allow ing the appeal of the respondents, Mir Basi Ali Khan, Mir Shahni waz Ali Khan and Mir Sarfaraz Ali Khan, and setting aside th': conviction and sentences passed on them by the learned Fmt Additional Sessio!ls Judge, Bhopal, who had convicted them under Section 120B and Section 420, I. P. C.\n\nThe respondents weri, however, acquitted of the charge under Section 406, I. P. C.\n\nW: may mention that there were two committal orders made by th'' learned Magistrate, First Class, Bhopal, on April 5, 1965 and 011 October 12, 1965, respectively, which gave rise to two Sessions Trials, No. 90 of 1965 and No. 98 of 1965.\n\nThe learned Sessions Judge disposed of both the trials by a single judgment as he was of the view that both the trials were in effect a single trial of a single conspiracy and of several incidents of cheating.\n\nThe res pondents also filed one appeal before the High Court and the High Court disposed of t appeal by one judgment.\n\nThe facts are not very much in dispute.\n\nThe prosecutio11 case, in brief, was that Mir Bas it Ali Khan, the father, and hi> two sons, Mir Shahniwaz Ali Khan and Mir Sarfaraz Ali Khiln, entered into a partnership which was registered on September l.\n\n1959, under the Indian Partnership Act of 1932 in the State of Andhra Pradesh at Hyderabad.\n\nThe registration number of th•: firm was 1468.\n\nMir Basit Ali Khan started a money circulation scheme known as Multi-Purpose Constructive Circulation Schem1: with its head office at Hyderabad. in the year 1960.\n\nHe, along with others, was prosecuted in the City • Magistrate's Court at Hyderabad, but they were acquitted and the acquittal was main tained in the High Court.\n\nThe Magistrate had come to the con clusion that though the scheme appeared to be speculative yet it could not be said that the accused were running the said schem1: with a dishonest intention to cheat the public.\n\nIt is alleged that Mir Basit Ali Khan again organised th<: Multi-Purpose Constructive Circulation Scheme on Septem ber 20, 1961, at Bhopal with its principal office at Bungalow No. 59, Roshanara Naka, T. T. Nagar, Bhopal.\n\nThe firm issued . policies and printed pamphlets and handbills representing that i':\n\nwas a Governmenf of India Registered firm No. 1468.\n\nWe may reproduce the pamphlet, Ex.-P-9 /I, which was oi.t: of the pamphlets issued by the firm :\n\n\"1. Perform the marriage of marriageable girls by spending only S.50 np.\n\n2. Only after spending once Rs. 5 . 50 np. send your A pi:omising children to America or England for Education.\n\n3. By spending Rs. 5·50 nP. only once, you can meet your daily necessities.\n\n4. By spending Rs. 5 50 nP. only once make provision for education, and books, stationery, etc., etc.\n\n5. By spending Rs. 5.50 nP. get a big sum of Rs. 2,309 for the progress of your business.\n\nFor obtaining all the above mentioned thing, you can get a big sum of Rs. 2,309 by spending only Rs. 5 50 nP.\n\nPlease do come and meet on the address noted below so c that you may know how to do it and how to utilise this golden opportunity.\n\nOtherwise please do not say that you did not get intimation.\"\n\nIt is necessary to reproduce another pamphlet, Ex. P-12, because according to the State there were clear misrepresentations of fact which amounted to cheating :\n\n\"Phone : 1266. M. C. C. Bhopal M. P. Grams :\n\n\"Jansewak\" Government of India's Registered Firm, 1468.\n\nThe Government of India after establishing the social service Department are doing a great service for the puiilic and to the nation as a whole by spending lacks of rupees.\n\nThe public have also been exerting manual labour in addition to giving their valuable time.\n\nBut this Public Service scheme of ours is so unique that without any difficulty every individual of the country receives direct benefit to the extent of Rs. 2,309.50 by sitting at home.\n\nThat is, remit your admission fee once through the de T. T. (sic.) and the Government postman will knock down at your doors several times to pay you up the amount.\n\nThe Founder of this unique formula has placed before you in such a way that a person with ordinary intelligence will be pleased to understand it.\n\nHOW THIS IS POSSIBLE : Collect Rs. 5.50 from each of your three friends, and out of this keep Rs. 5.50 for yourself and this remaining Rs. 1 J.00 may be remitted according to the schedule. It is thus clear that you have received your original amount of Rs. 5 .50 in full immediately after the sale of three Policies.\n\nStlPkld coti.? llU'OllTS [1971] SlJPP. s.e.lt.\n\nFrom the procedure explained above, it is very clear that this is neither a Gamblins lottery, Riddlo nor Salta.\n\nThere is not the least possibility of your losing the amount. Of course, such persons \"ll'ill be losers who will not be in a position to sell their three policies.\n\nTher~ fore, those persons who do not have the capacity of selling their 3 Policies need not join this scheme. But in our opinion we are confident that there Is no such an' unfortunate person who is not having even three well wishing friends, or relatives in this vast world. But the question of selling 3 policies by an individual is most important.\n\nHow.-Y ou should purchase one policy by paying Rs. 5.50 nP. from any person who has already enrolled in this scheme. or write to the Firm for the policy, by sending M. 0. of Rs. 5.\n\nNow select tlu:ee energetic and enthusiastic friends, collect Rs. 5.50 from each of them and remit the M. Os. to the members and the Firm as shown in the schedule.\n\nWrite down the names of your selected 3 friends with their address in full in BLOCK\n\nLETTERS ONLY.\n\nSend the Policy along with the M. 0. receipts to the firm by EXPRESS DELIVERY\n\nONLY.\n\nNever send M. Os. to persons in column nos. 2 they will not get any amount to the extent of THIS POLICY ONLY BUT as and when this Policy goes in circulation they will automatica!ly change their places and enjoy with their expected amount.\n\nFIRM'S RESPONSIBILITY : The firm will send you 3 policies in which you will stand in column No. 2 and thai of the new member in column No. 1.\n\nHand over these policies immediately to your friends carefully.\n\nAs sOOll' as you finish this job, YOUR RESPONSIBILITY IS OVER The chain of M. Os., will be continued in such a way that your neighbours will be fed up with postman's voice.\n\nBecause the beauty of our scheme is that we allow 15 days period for the sale of the policy to each of our member after the expiry of the period we cancel such slack members and the same cancelled policy in which you stand in No. 2 is sold to other new members through our authorised agents and field officers, who are spread all over India thereby we try our utmost to continue your chain.\n\nThe cause of failure of other previous Schemes is only due to not having this wonderful arrangement of continuation of Chain to which we give much importance.\n\nFor this reason only we arc having a very\n\ngood response & o.ur to days membership number is more A than a lack all over India.\n\nUnder unavoidable circumstances, extension of one week can be given on payment of extension fee of 0.37 nP.\n\nSCHEDULE\n\nS.No.\n\nNo. of Policies Amount payable Column No.\n\nI l 5.50\n\n2 3 Nil\n\n3 9 9.00\n\n4 27 27.00 5 81 81.00\n\n6 243 364.50\n\n7 729 1822.50\n\nTotal No. of Policies 1093\n\n2309.SO\n\nMOST IMPORTANT : If your chain of M. O.s. are dis-continued for two weeks Please 'inform ui; immediately so that they may be continued.\n\nMEER BAS!TH ALI KHAN\n\nAutlur of Dukhi Kisan approved by the Ministry of Agr. Govt. of India, Founder of full House Talkie Formula Regd. by Govt. of India No. 104\n\nProprietor M. C. C. Govt. of India's Regd. Fifm No. 1468 Bhopal.\n\nTIME IS MONEY : If you are inclined to become agent, contact us and enjoy with the commission of 3.50 np. per member.\n\nThe Chief agent will get 75 P. M. salary as well as commission of Rs. 3 50 per member.\n\nThe a ivertisement expenses will also be borne by the firm.\"\n\nThe learned Sessions Judge had come to the conclusion that the respondents by using the expression \"Government of India Registered Finn , No. 1468\" in their policies and pamphlets misled the public into believing that the scheme was sponsored by the Government of India or it had its approval.\n\nHe also came to the conclusion that there was a misrepresentation in the pamphlet that the scheme was neither a gambling, lottery, riddle . or a satta, but was an ordinary financial scheme.\n\nThe learned 9-1 S.C. lndia/71\n\nSUPREME COURT REPORTS [1971] SVPP. s.c.ll\n\nSessions Judge had further found that as the remitter of the money orders was always Mir Basit Ali Khan, respondent No. I and the Proprietor of M. C. C., the member of the policy was left cnly with a small piece of papr. Ex. P-69, the scheme contained a misrepresentation and suppression of material facts which made the respondents liable for conspiracy to cheat and cheating.\n\nThe High Court, however, held that it being not in dispule that the firm was registered and its number was 1468 there w<.s no fraudulent or deceitful representation.\n\nThe High Court fur ther held that most of the witnesses had clearly stated that thiy had known the fact 'that it was a private firm and the Government had nothing to do with it. The High Court was of ·· the view that the statement may be an exaggeration or a puffing. The High Court, after going through the evidence and the various pamphlets came to the following conclusion :\n\n\"There appears to be no misrepresentation or suppression of any material facts with a view to defraud or cheat. How-so-ever speculative and unworkable the scheme may be, unless it is shown that there is a false representation or suppression of the material facts which might render it to be fraudulent, it cannot be said that the offence of cheating has been committed. Of course, to judge its effect, the policy and the pamphlet has to be read as a whole.\" ·\n\nThe High Court further observed, after referring to a number Jf cases which we will presently deal with :\n\n\"In this scheme as aforesaid, the purchaser also got his amount alright and one can expect to get even more provided the Chain contiuned.\n\nAs the policy with its rules and pamphlet make it quite clear, the appellants cannot be held guilty unles it is positively shown that some deception had been practised on the public with the result that they were deceived and they had paid the money.\n\nThe prosecution has not produced any witness to say that some money was due from the company and they have been in any way deceived and the amount has not been paid.\n\nIt is only the Jhabua lot of witnesses who could not be paid because of the police raid and the M. Os. being withheld by the Magistrate.\" •\n\nThe High Court further found that the name of Mir Basit Ali Khan, proprietor, M. C. C., was mentioned simply because it was a chain scheme and that it may go on working continuously, otherwise there is every possibility that some policy holder might not send the full amount or may not be traceable for one reason\n\nM. P. STA'IB V. BASITA!J (Sikri, C.J.) 131\n\n.or the other.\n\nThe High Court observed that nothing was kept\n\nA - , secret from the policy holders and it was known to them alright that they had joined the scheme with the conditjon20 !~1 :!:;~;; L'! !he pQ!icy accused, Kanta Kumari replied that she was going out for singing marriage songs_ Kanta Kumari went away with the two accused and returned home by about mid-night. In the morning ot February 15, 1965, the complainant found that Kanta Kumari: was ulissing from his house.\n\nOn a search m .. de by him, he came to know 1hat Kanta Kumari was seen early th&t morning at about\n\ns. D. PANDEY v. BIHAR (Vaidialingam, J.)\n\n3 A. M. going in the company of all the five accused persons for Ganga Ashnan.\n\nHe was expecting Kanta Ktnnari to return. But on the evening of February 17, 1965, when he met the first and the fifth accused in the village, he was informed by the fifth accused that his paternal cousins, accused Nos. 2 and 3, had taken away Kanta Kumari with them.\n\nOn receiving this information, Parmeshwar Pandey lost all hope of his niece Kanta Kumari coming. back and on February 18, 1965' he filed a complaint before the police alleging that his niece Kanta Kumari, a minor, ha.s been kidnapped from his lawful guardianship by the five accused.\n\nAll the five accused were charged under Section 363 I. P. C. for kidnapping the minor girl Kanta Kumari on February 15, 1965 from the lawful guardianship of her uncle Parmeshwar Pandey without his consent.\n\nAll the accused pleaded not guilty before the tQal court and stated that they were falsely implicated by Parmeshwar Pandey on account of long standing enmity.\n\nIn particular they pleaded :\n\n(a) that Parmes)lwar Pandey had no niece called Kanta Kumari :\n\n(b) they have not kidnapped Kanta Kumari ; and\n\n(c) in any. case Kanta Kumari was not a minor as alleged but was a major about 18 years of age.\n\nThe learned Assistant Sessions Judge by his judgment and order dated August 31, 1966 substantially rejected all the pleas of the accused.\n\nThe learned Judge held that the complainant Parmeshwar Pandey, who had given evidence as P. W. I had a niece by name Kanta Kumari, who was living with him under his guardianship as she had lost her parents.\n\nThough Kanta Kumari was not traced and as such she was not before the court, the learned Judge held that Kanta Kumari at the time of the occurre.ttce must have been only 9 or 10 years old.\n\nThe learned Judge further held that accused Nos. 2 to 5 (appellants herein) have kidnapped Kanta Kumari, a minor girl, on February ts, 1965 from the lawful guardianship of her uncle Parmeshwar Pandey withoqt his consent and as such they were guilty of the offence under Se~ tion 363 I. P. C. Accordingly he convicted appellants of the said offence and sentenced them to. undergo rigorous imprison ment for five years.\n\nEach of them was also fined a sum of {ls. 500 and in default of payment of fine to undergo further rigorous imprisonment for six months.\n\nThe learned Judge, however, held that the case against accused No. I, Sia Devi has not bec:n proved beyond reasonable doubt and as such acquitted her.\n\n. The appellants filed Criminal Appeal No. 453 of 1966 in the Patna High Court on September 8,. 1966 challenging the various\n\nA findings recorded by the learned Assistant Sessions Judge and contending that those findings were not supported by the evidence adduced.\n\nThey also pleaded that their conviction is illegal.\n\nIn particular they have pleaded that the finding regarding the age of Kanta Kumari, when she has not appeared before the court is based on pure conjecture and surmise and not on any legal evid- B ence.\n\nOn September 9, 1966 the High Court admitted the appeal and passed the following order :\n\n\"9.9.66 This appeal will be heard. Issue notice.\n\nPending the hearing of this appeal the appellants will continue on bail to the satisfaction of the District Magistrate.\n\nThe realisation of fine also will remain stayed during the pendency of this appeal.\"\n\nThe appeal was posted for hearing on May 10, 1968.\n\nOn that date neither the appellants nor their counsel seems to have appeared and the Court dismissed the appeal and passed the following order and judgment.\n\n\"10-5-68.\n\nNo one appears to press this appeal. On perusal of the judgment under appeal, I find no merit in the case.\n\nIt is accordingly dismissed.\"\n\nThe appellants on the same day filed Criminal Miscellaneous Application No. 556 of 1968 praying for restoration of the Criminal Appeal which had been dismissed by the Court.\n\nAfter issu ing notice in the said application, the High Court on July 12, 1968 dismissed the application for restoration on the ground that no sufficient cause has been shown by the appellants. The appellants filed an application for grant of a certificate under Article 134(1)\n\n(c) of the Constitution to appeal to this Court together with an application to excuse delay in filing the application.\n\nThe High Court dismissed this application on August 2, 1968. This Court, however, on December 11, 1968, granted special leave to appeal against the judgment and order of the High Court dated May\n\nIO, 1968.\n\nMr. S. N. Prasad, learned counsel for the appellanis, raised two contentions : (i) that the disposal of the appeal by the High Court on May IO, 1968 is contrary to the terms of Section 423 of the Code ; and (ii) that the order pronounced by the High Court is not a judgment as understood in law as it does not contain the . point or points for determination, the decision thereon and the reasons for the decision.\n\nMr. R. C. Prasad, learned counsel for the State, has urged that the order dated May I 0, J 968 complies in all respects with Section 423 of the Code.\n\nHe has further urged that Section 367 -0f the Code relating to the contents of the judgment does not apply to the High Court and in this connection he relied on Section 424 -0f the Code.\n\nIn the view that we take regarding the first contention of Mr.\n\nS. N. Prasad, that the judgment is not in compliance with Section 423 of the Code, we do not think it necessary to express any opi nion as to whether Section 367 applies to the judgment delivered by the High Court as also the scope of Section 424 of the Code.\n\nThe question whether the High Court has got jurisdiction to restore a criminal appeal has also not been agitated before us.\n\nThe contention of Mr. S. N. Prasad is that the High Court having admitted the appeal on September 9, 1966 and issued notice to the State, it has no power under Section 423 of the Code to wancc will have to be made in respect of statements made in election\n\nmeetings as the atmosphere is usually surcharged by partisan feelings and emotions. Allegations of depravity or immorality or affecting the 1noral or n1ental qualities of a person are statements relating to the personal character or conduct of a person. Attributing acts of violence to a cand; M\n\ndteeven if such acts are done during his political career, is a statement re!at!ng to the personal character and conduct.\n\nIf the conditions of -s. 121.(4) are satisfied it is irrelevant to inquire whether the statetnent has been n1:ide as a counter blast to another statement issued by the opponent.\n\nBANSI LAL v. RISHI KUMAR (Vatdialingam, J.) 147\n\nThe staiement must be one reasonably calculated to prejudice the prospect• A of the candidate's election. The initial onus establishing the circumstances mentioned in s. 123(4) is on the election petitioner and when once he discharges that onus, the burden shifts to the candidate making a false statement of fact to show what his belief was. [156G-157D]\n\nCase-law referred to. ,\n\n(ii) There were no statements of fact in paragraphs I 7 and 20 of lhe Ex. P. W. I /II in relation to the personal character or conduct of the respondent. There was no allegation in paragraph I 6 that the respondent \"as an associate of drunkards. The averment in the said paragraph that •ome of the companions of the respondent on whose political support the respondent relied were found drinking from morning till evening, did not relate to the personal .character or conduct of the respondent. The allegation in the said paragraph regarding the respondent extricating himself from a criminal case bad been proved to be true and u 1ucli fell outside the mischief of s. 132(4) of the Act. It followed that the finding of the High Court that the statements contained in paragraphs 16, 17 and 20 amounted to corlllpt practice under s. 132(4) of the Act, could not be austained. [1640-FJ\n\n(iii) It is permissible for a respondent in this Court to support the judgment of the High Court by attacking the findings recorded against him. However on an examination of the findings recorded by the High Court in respect of paragraphs 7, 8, 10, 18 and 19 it could not be held that the findings therein were erroneous as contended by the respondent. [165A;\n\n171B]\n\nRamanbhai Ashabhai Patel v. Dab/U Ajitkumar Fulsinii & Ors. [1965] I S.C.R. 712 and Shri Thepfulo Nakhro Angami v. Shrimati Raveluei @ Rani M. Shaiza, [1971] 3 S.C.R. 424, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 204 of 1970.\n\nAppeal under Section 123 of the J. & K. Representation of the People Act, 1957 from the judgment and order dated December 15, 1969 of the Jammu and Kashmir High Court in Election Petition No. 37 of 1967.\n\nR. K. Garg, D. P. Singh, A. K. Gupta, R. K. lain, V. I.\n\nFrancis and S. P. Singh, for the appellant\n\nRamnath Bhalgotra, Swaranjit Sodhi and S. S. Khanduja, for the respondent\n\nThe Judgment of the Co)lrt was delivered by\n\nValdialingam, J.-This appeal, under Section 123 of the Jammu- & Kashmir, Representation of the People Act,\n\n19S7 !hereinafter to be referred as the Act) as amended by Act 11 of 1967, is direeted aainst the judgment and order dated December H 15, 1967 of the High Court of Jammu & Kashmir in Election Petition No. 37 of 1967.\n\nSection 123 of the Act corresponds to Section ll 6A of the Representation of the People Act, 195 l.\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nIn the General Election held in 1967, the appellant and the respondent had duly filed their nominations for election to the Jammu & Kashmir Legislative Assembly from the Reasi Assembly Constituency.\n\nScrutiny of the nomination papers was conducted on January 23, 1967 and the polling took place on February 21, 1967.\n\nThe counting of the ballot papers took place or1 February 27, 1967 and the appellant was declared duly elected by a majority of 418 votes.\n\nThe respondent filed an election petition on April 8, 1967 being No. 37 of 1967 challenging the election of the appellant on the ground that various corrupt practices, set out in the. petition, had been committed by the appellant, his agents and other persons with his consent in the said election. In .:onsequence the respondent prayed for declaring the election of the appellant from the said constituency as null and void.\n\nln paragraph 6 of the election petition, the respondent enumerated the various corrupt practices stated to have been commi.tted during the election, in consequence of which the election of the respondent was void.\n\nIt is not necessary for us to set out the various corrupt practices referred -to in paragraph 6 of the election petition. The election of the appellant had been declared to be void by the High Court only on the ground that the matters mentioned in paragraphs 16, 17 and 20 of the booklet Ex. P. W. l/II constitute corrupt practices under Section 132 (4> of the Act corresponding to Section 123 (4) of the Representation of the People Act, 1951.\n\nWe may have to deal with certam other matters referred to in paragraph 6 of the election petition in the later part of the judgment, as the learned counsel for the respondent has tried to support the judgment of the High Court by attacking the finding recorded against him in respect of some of those allegations.\n\nItem No. 2 of paragraph 6 refers to the appellant, bis agents, polling agents and other persons with his consent having published certain posters and booklets containing statements of facts, which were false and which they either believed to be false and did not believe to be true in relation to the personal character and conduct of the respondent.\n\nSub-item (a) of item No. 2 refers to the publication of a booklet under the caption \"open letter from Debati of facts and not proved to be correct and such a type of propaganda has materially affected the prospects of the respondent's election as they touched his personal conduct.\n\nWith reference to the averrnents in paragraph 20 of the Ex.\n\nP. W. 11 II, the High Court is of the view that there is an allegation that the respondent has looted the property of the poor and that he is further charged with appropriating the looted property.\n\nSuch an allegation, which is false, relates to the personal character of the respondent.\n\nThe High Court winds up its discussion on paragraphs 16, 17 and 20 of Ex. P. W. l /II as follows:\n\n\"The above referred to allegations made in paras J6, 17 and 20 are in my opinion statements of fact which are in relation to the personal character and conduct of the petitioner.\n\nHe is described as one who apologised for extricating himself from a criminal case by paying money to the other side.\n\nHe is shown to be an associate of drunkards on whose support he counts and in whose company he moves. He is also shown to be a preacher of cow-slaughter (a malafide statement which is likely to rouse the wrath of Hindu Janta against him and to malign him).\n\nHe is said to be begging for votes from door to door (on humiliating terms).\n\nHe is said to have committed acts of fraud and in the end what is worst is that he is asked to appropriate the looted property of the poor. Tr.e statements of facts have been made in the booklet Ex.\n\nP. W. I /II with the clear intention of maligning and defaming the petitioner and degrading him in the eyes of the voters. These statements are false and have not been proved to be correct. These statements of fact have been made by an active worker of the Congress who was not only a worker in election of the respondent but also his polling agent.\n\nIt is true that the booklet was published before the notificatio!I calling upon the candidates to file nomination papers in the Constituency was made. May be also that the booklet was published only in reply to the poster Ex. P. W. l /b entitled 'Dihati Bhai Hoshiar Bash' issued by Jan Swgh as is argued. But it was issued on the eve of the election and in this there is a clear mention of election propaganda.\"\n\nBANS! LAL v. RISH! KUMAR (Vaidia/ingam, J.)\n\nFinally the High Court held that the allegations referred to in paragraphs 16, 17 and 20 of the booklet Ex. P. W. I /II are statements of fact, which are false and have been made in relation to the personal character and conduct of the petitioner and therefore fall within the ambit of s. 132(4) of the Act. The High .Cou:t further finds that there is overwhelming evidence on re- , cord to show that the said booklet was distributed and circulated .by the author of the booklet R. W. 53 and other workers of the\n\nCongres; party including the election agent of the appellant and the appellant himself amongst the people in different villages of :the Constituency during the election and also just before the poll.\n\nAll other allegations of corrupt practice made in the election petition were either held to be true or not proved.\n\nBut on the basis of the finding on paragraphs 16, 17 and 18 of Ex. P. W. Ii II, the High Court held the appellant guilty of corrupt practice and as such set aside his election after declaring it void.\n\nMr. R. K. Garg, learned counsel for the appellant, urged two contentions : (!) that the statements contained in the above thre~ paragraphs do not relate to the personal conduct or character of the respondent and, that, on the other hand, they are only by way of a criticism of the respondent as a politican and the political activities of the Jan Sangh Party to which he belongs. The High Court has misinterpreted and misunderstood the various statements made in the above paragraphs when it came to the conclusion that they amount to corrupt practice; (ii) regarding publication and distribution of the pamphlet by the appellant, his agent, or by any person with his consent. the learned Judge has merely extracted the evidence on the side of the appellant and the respondent and has entered a finding that there is overwhelming evidence on record to show that Ex. P. W. l /II has been distributed and circulated in different villages during the election and before the poll.\n\nThe learned Judge has not expressed any opinion as to which evidence he accepts or rejects, and as such the finding in this regard is grossly vitiated.\n\nSection 132 of the Act corresponding to Section 123 of the Representation of the People Act, 1951 deals with corrupt 9ractices and sub-section (4) is as follows :\n\n\"The publication by a candidate or his agent or by any other person, of any statement of fact which is false, and which he either believes to be false, or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, or retirement from contest, of any candidate being a statement reasonably calculated to prejudice the prospects of that candidaite's election.\"\n\nJ 53\n\nSUPRllME COllRT REPORTS [1971] SUPP. s.c.R.\n\nSub-section (4), quoted above is the same as Section 123 (4) of the Representation of the People Act, 1951 and the contents of the said sub-section have been laid down in several decisions of this Court.\n\nWe will first refer to the broad principles laid down in those decisions and then advert to the relevant paragraphs of the booklet Ex. P. W. l /II and will then deal with the contentions of Mr. Bhalgotra, supporting the findings of the High Court in relation to those paragraphs.\n\nIn T. K. Gangi Reddy v. M. C. Anjaneya Reddy and other$(') this Court stated that the words \"personal character and conduct\" are so clear that they do not require further elucidation or definition.\n\nThe character of a person may ordinarily be equated with his mental or moral nature.\n\nConduct connotes a person's actions or behaviour\". It has been further held that if otherwise a statement comes under sub-section (4) of Section 123 as corrupt practice, it will be no answer to plead that the 11tatement was made as a counter blast to a rival statement of an opponent.\n\nIn dealing with sub-section (4) of Sectioo 123 in lnder Lal v.\n\nLal Singh (') this Court observed as follows :\n\n\"It would be noticed that in prescribing the requirement that the false statement should have relation to the personal character of the candidate, a distinction is intended to be drawn between the personal character of the candidate and his public or political character ........ Dissemination of false statements about the personal character of the candidate thus constitute a corrupt practice.\"\n\nIn the same decision it has also been pointed out that though it is clear that the statue wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious thal a sharp and clear cut dividing line cannot be drawn to distinguish the 0nc from the other.\n\nBut nevertheless tho courts will havo to draw a working line to distinguish private character from pvblic character.\n\nIt has further been pointed out in Ku/tar Si11:lt v. Mukhtiar Singh (') that the document must be read as a whole and its purport and effect determined in a fair, objective and reasonabi. manner and that at the election time the atmOiphcro is usually surcharged with partisan feelings ood emotiollS and liOlllO allowance must be made in that regard.\n\n(I) (1960) 22 E. L. R. 261.\n\n(2) (19621 Suppl. 3 s.c.R. 114. t3) [1964) 7 S.C.R. 790.\n\nBANSI LAL v. RISHI KUMAR (Vaidia/ingam, J.)\n\nDealing with sub-section (4) of Section 123, in Sheopat Singh\n\nv. Ram Pratap (') this Court observed as follows :\n\n\"The sub-section is designed to achieve this dual purpose, namely, freedom of speech and prevention of malicious attack on personal character or conduct etc. of rivals.\n\nThe purity of an election is sought to be maintained without affecting the freedom of expression. The sub-section prohibits any statement of fact in relation to personal character or conduct of any candidate, which is not only false but also the candidate making it either believes it to be false or does not believe it to be true. It implies that a statement of fact relating to the personal character or conduct etc. of a candidate can be made, if it is true. Even if it is false, the candidate making it is protected, unless he makes it believing it to be false or not believing it to be true, that is to say statements which are not true made bona fide are also outside the ambit of the provision.\n\nTo be within the mischief of sub-section (41 of Section 123 of the Act, such a statement shall satisfy another test, namely, it shall be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it is made.\n\nThe word \"calculated\" means designed : it denotes more than mere likelihood and imports a design to affect voters. lt connoks a subjective element through the actual effect of the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect.\n\nThe emphasis is on the calculated effect, not on the actual result, though the latter proves the former.\"\n\nIt has been further stated in the said decision :\n\n\"The boundary between personal character and conduct and public character and conduct is well drawn, though, sometimes, it is thin.\n\nSometimes a statement may appear to touch both the candidate's personal as well as public character.\"\n\nIn Dev Kanta Barooah v. Golok Chandra Baruah and Jthers (') this Court had to consider whether an allegation calling as \"Deshdrohita\" a person who was having military contracts\n\nduring the 1942 movements was a statement in relation to his persooal character or conduct.\n\nIt was held that the said allegation was only a reflection on the political conduct of the person\n\n(I) [1965) I s.c.R. 17S.\n\n(2) [t970J t s.c.c.392.\n\nSUPREME COURT REPORTS [1971] l>UPP. S C.R.\n\nconcerned in siding with the British Government rather than joining the Congress, which was carrying on a movement against the British for achieving independence of the country.\n\nIn that cuntext it was held that the statement was not In relation to the personal character or conduct of the party concerned as there is no imputation of any depravity or immorality\".\n\nIn Guruj/ Shrihar Baliram Jivatode v. Vitha/rao and others(') it was held by this Court that the statements which were under consideration do not make any reflection on the moral or mental qualities \"of the person against whom those statements had been made.\" The following observation of Darling J. in Cumberland (Cockermouth Divisional) (') case has been quoted with approval in some of the decisions of this Court referred to above :\n\n(4).\n\n\"What the Act forbids is this.\n\nYou shall not make or publish any false statement of fact in relation to th~ personal character or conduct of such candidate ; if you do, it is an illegal practice. It is not an offence to say something which may be severe about another person nor which ma¥ be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to the personal character or conduct of such candidate ; anti I think the Act says that there is a great distinction to be drawn between a false statement of fact which affects th~ personal character or conduct of a candidate and a false statement of fact which deals with the political position or reputation or action of the candidate. If that \"were not kept in mind, this statute would simply have prohibited at election times all sorts of criticism which was not strictly true relating to the political behaviour and opinions of the candidate.\n\nThat is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the personal character and personal conduct.\"\n\nDarling J. was dealing with a provision similar to Section l 23\n\nFrom a review of the decisions referred to above, it fo!tows that in order to constitute corrupt practice under Section 123(4), the false statement should have been in relation to the personal character of the candidate.\n\nIf a false statement is made with regard to the public or political character of the candidate. it would not constitute a corrupt practice even if it is likely to prejudice the prospects of that candidate's election.\n\nCirculation of\n\n(I) [1969] I S.C.R. 766.\n\n(2) [1901] S, O' M. & H. lSS.\n\nBANS! LAL v. RISH! KUMAR ( Vaitlialingam, J.) 157\n\nfalse statement about the private or personal character of the candidate during the period preceding the election is likely to work against the freedom of election itself inasmuch as the effect created by false statement cannot be met by denial in proper time and so the Constituen;; y has .to be protected against the circulation of such false statements which are likely to affect the voting ·:if the elec10rs.\n\nIf a statement of fact affects the man beneath the politician, it touches the private character; and if it affects the politician it does not touch his private character. Some allowance will have to be made in respect of statements made in election meetings as the 31tmosphere is usually surcharged by partisan feelings and emotions.\n\nAllegations of depravity or immorality or affecting the moral or mental qualities of a person are statements re!atir, g to the personal character or conduct of a person. Attributing acts of violence to a candidate even if such acts are done during his political career, is a statement relating to the personal character and conduct. If the conditions of Section 123 (4) are satisfied it is irrelevant to inquire whether the statement has been made as a counter-blast to another statement issued by the opponent.\n\nThe statement must be one reasonably calculated to prejudice the pro;-\n\npects of the candidate's election.\n\nThe initial onus of establishing the circumstances mentioned in Section 123 (4) is on the election petitioner and when once he discharges that onus, the burden shifts to the candidate making a false statement of fact to show what his belief was.\n\nBearing in mind the above propositions, we will now proceed to consider whether the statements in paragraph 16, 17 and 20 in Ex. P. W. I /II are statements in relation to the personal character or conduct of the respondent.\n\nIn considering this question it is necessary to note that the respondent was then a sitting member of the Legislative Assembly and the pamp.lilet itself is addressed not only to the respondent but also to other Jan Sangh leaders.\n\nThere is no controversy that the respondent belonged to Jan Sangh Party.\n\nBefore we consider the contents of the said three paragraphs of Ex. P. W, II II, we can deal with and dispose of the contentions raised on behalf of the appellant that the booklet was issued as a counter blast to the pamphlet issued by the Jan Sangh Party Ex. P. W. II B.\n\nAs stated by this Court in T. K. Gangi Reddy and others (), case Section 123 (4) defining corrupt practice, is not conditioned by any proviso to the effect that it would cease tc be a .corrupt practice if the statement was made to counteract the rival statement of an opponent.\n\nTherefore, it follows that if the conditions mentioned in sub-section (4) of Section 123 are held to be satisfied, it is irrelevant to inquire whether the booklet\n\n(1) [1960] 22 E.L.R. 261.\n\n168 SUPREMI! COUllT REPORTS [1971] SUPP. s.c.ll.\n\nEx. P. W. l /11, has been published as a counter-blast to Ex. P. W. l/B\n\nNow coming to the material portion of the pamphlet itself, we are of the opinion that the High Court has misunderstood and misinterpreted the averrnents contained in paragraphs 16, 17 and\n\n20. Before we deal with paragraph 16, we will consider tho nature of the statements made in paragraphs 17 and 20.\n\nParagraph 17 in substance refers to seizure of cattle and livestock of the persons when they were being taken to their home.\n\nThere is a reference to the cattle being impounded and the persons filing a case in the court. The charge is that the respondent never rendered any help to those persons who had been arrested and tried by the courts.\n\nThere is a reference .to the respondent doing propaganda about the COW-tilaughter and his not havin& done anything for the benefit of the villagers. In spite of not doing anything to the villagers, the respondent is alleged to bs asking for votes from the villagers. It is further stated that the people of the village have been helping the respondent for over 20 years and the latter had done nothing to help the villagers. This para graph. unfortunately, has been understood by the learned Jadge as containing the statements to the effect:\n\n(a) that the respondent is a preacher of cow-slaughter and that it is a malafide statement made to rouse the wrath of Hindu Janta against him and to malign him;\n\n(b) that the respondent is begging for votes from door to door on humiliating terms;\n\n(c) th.at the respondent has committed acts of fraud.\n\nNone of the above conclusions drawn by the High Court from paragraph 17 are supported by the statements contained !heroin.\n\nOn the other haoo, it is a wholesale attack against the respendetit as a politician for having ignored the requirements of the village and the villagers but at the same time trying to woo their votes which he does not deserve. There is no statement to the effect that the respondent has preached cow-slaughter in which case it wt11 be a very serious allegation.\n\nOn the other hand the statement is that the respondent did propaganda about cow slaughter. Nor is there any allegation that he is begging for votes on hwn!liating terms.\n\nEven if such a statement is there, it will not be a statement in relation to the personal character or con duct.\n\nOn the other hand, every candidate during elections makes requests for votes and for this purpose he may be visiting the voters from door to door.\n\nTo say that a candidate is asking for votes, has no reference to the personal character or conduct of that candidate.\n\nBut the actual statement in paragraph 17 is that he:\n\nBANS! LAL v. RISH! KUMAR (Vaidialingam, J.) 159\n\nis knocking at every door and staggering around saying \"vote for me\".\n\nIn our opinion, this statement has no relation to the personal character or conduct of the respondent and it only criticises him for asking for votes from the voters when he has not done any good to them ; nor is there any statement to the effect that the respondent has committed acts of fraud.\n\nAn argument was made by Mr. Bhalgotra, learned counsel for the respondent that there is an averment that the respondent has committed deception and the people from the village get bad name. Deception, according to the learned counsel, consists in the respondent having misled the peopfe in believing that the cattle were being taken for slaughter and when the villagers got into trouble, when they attempted to prevent the cattle from being so taken, the respondent did not render any help to them.\n\nWe are not inclined to accept this interpretation sought to be placed on these averments in paragraph 17.\n\nThe deception that is referred to is attributed to the people of the town generally and the people from the village suffering on account of that.\n\nThis only reveals the antago uism of the villagers to the town people on the ground that the latter exploit the village people for their own purpose.\n\nTherefore. none of the reasons given by the learned Judge for coming to the conclusion that paragraph 17 contained statements in reiation to the personal character or conduct of the respondent appeal to us.\n\nComing to paragraph 20, the learned Judge had taken the view that there is an allegation that the respondent has been asked to appropriate the looted property of the poor.\n\nHere again there is a fallacy underlying the reasoning of the High Court.\n\nParagraph 20 in substance is only to the effect that there is a wide disparity between the people in the town and in the villages and that the former are gaining at the expense of the latter. It is in this context that it is sarcastically mentioned that the people of tile town can put up an iron curtain and enjoy the advantages gained from the poor.\n\nThe sentiments underlying paragraph 20 reveal only the grievance of the people in the village that their claims are being neglected and that the people in the town are having all the. benefits at the expense of the village people. The words \"wealth robbed\" have been understood by the learned judge as the property looted from the poor.\n\nThere is no warrant for such an interpretation.\n\nThose expressions have been used only to bring out very forcibly that the people in the town are having all the benefits at the expense of the people of the villages who are comparatively stated to be poor.\n\nTherefore, paragraph 20 again, in our opinion, does not contain any statement relating to the personal character or conduct of the respondent.\n\nTaking up paragraph 16, the High Court has held that it contains two statements which relate to the personal character or\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nconduct of the respondent, namely, (a) that the respondent apologised for extricating himself from a criminal case by paying money to the other side, and (b) the respondent is shown to be an associate of drunkards on whose support he counts and in whose company he moves.\n\nBroadly, the statements in paragraph 16, relate to the attack of two persons by the urban people including the respondent, their arrest and the case instituted by them being dropped or compromised on the respondent asking for a pardon by paying some small amount.\n\nThere is a further statement that the respondent relies on the support of his companions who are found drinking from morning till evening and the respondent not having taken any action against them, cannot blame the villagers\n\nHere again the theme seems to be the same, namely, of the town ople receiving a more favourable treatment than the people in the villages. There is no such averment as understood by the High Court that the respondent is an associate of drunkards on whose support he counts and in whose company he moves.\n\nOn the other hand, there is a statement that some of the sathis of the respondent are found drinking from morning till evening and that the respondent relies on their\"support.\n\nThis support, referred to, must relate to the political support that the respondent derives from such persons.\n\nThis averrnent will have to be taken along with the statement contained in the earlier part of Paragraph 16, that the respondent along with his urban friends after attacking the two persons mentioned therein has raised the question that the people from the village come to towir and drink and roam aimlessly like vegabonds. Read in his manner the idea is quite clear, namely, that the respondent and his other urban friends charge the vi\\lagers of drinking when they come to town and the villagers in turn charge the respondent that his own companions in the town are also persons who drink.\n\nThere is no reference in these allegations to the personal character or conduct of the respondent. But, on the other hand, it is really a criticism by the village people of the habits and manners of the people in the town in retaliation to the allegations made against the village people. Therefore, it follows that there is no such statement in paragraph 16 to the effect that the respondent is an associate of drunkards on whose support he counts and in whose company he moves.\n\nThis leads us with the question whether the High Court is correct in its finding that in paragraph 16, the respondent is described as one who apologised for extricating himself from a criminal case by paying money to the other side. So far as this aspect is concerned, Mr. Garg, referred us to the evidence to show that a criminal complaint was actually filed against the respondent and others and that the matter was compromised on an apology tendered by the respondent.\n\nIf that is so, tbe counsel urged, the statements contained herein, even assuming that they relate to the\n\nBANS! LAL v. a!SHI ll:UMAll (Yaldlallngam, J.)\n\npersonal character of the respondent, are true anll tneretore tlley do not amount to corm:pt practice under Section 123 (4). On the other hand, Mr. Bhalgotra, learned counsel for the respondent, pointed out that the evidence regarding the filing of a complaint and the respondent having tender~ an apology is unsatisfactory and. such evidence should. not be M:ted upon.\n\nThe evidence bearing on this matter may lie referred to. In i;>aragraph 16, the two persons who are stated to have come to R1asi and assaulted are Dhani Ram and Baldev Singh. Baldev Singh has given evidence as R. W. 37.\n\nHe has deposed that about two years prior to his giving evidence, he and Dhani Ram had gone to the town of Riasi and visited 'the.>Shop of Shyam Lal Jargar. When a piece of timber was sau$bt to be used as fire wood by Shyam Lal, Dhani Ram tried to setze the piece of timber on the ground that it belonged to the firm of 1 odha Mal and Company, in which he was employed.\n\nOn this a hue and cry was raised by the people of the town which included the respondent.\n\nAll of them beat the witness and Dhani Ram.\n\nAfter refering to the fact that their com plaint to the police was not taken on file, the witness has stated that he went with Dhani Ram and Amar Nath R. W. 43 to Udhampur to file a complaint before the court. He speaks further to the fact of filing of the complaint and that on the next day a compri:>mise was brought about between the parties.\n\nHe has produced Ex. R. W. 37/ I, the complaint, and the vakalat executed by him in favour of Durga Dutt, Valcil, R. W. 18. has been produced as R. W. 18/2A.\n\nR. W. 12, Fateh Singh also refers to the incident of attack on Baldev Singh R. W. 37 and Dhani Ram, in which the respondent and certain other town people also took part.\n\nHe speaks to having stood as a surety for Balde v Singh and Dhani Ram for obtaining their release.\n\nHe refers to having delivered a Jetter to Durga Dutt, Vakil, at Udhampur and to Baldev Singh and Dhani Ram coming to Udhampur to file the complaint.\n\nR. W. 18 is a lawyer at Udhampur.\n\nHe speaks of Baldev Sill(!h and Dhani Ram having come to him on September 19, 1966 wttha letter from M_r. Raghunath Das, Advocate, Riasi.\n\nHe has also spoken to Baldev Singh and Dhani Ram giving him instructions to file the criminal complaint. He has produced the vakalats Ex. R. W .. 18/2 and Ex. R. W. 18/2A, executed by\n\nDlani Ram. and Baldev Singh respectively in respect of the criminal complaint.\n\nHe has referred to the fact that he signed the complaint petitions and filed them in the Court of the A. D. M., Udhur <;>n September 20. 1966. '.I'he Magistrate forwarded the two complamts to the Station House Officer, Riasi, for i, nvestiga tion.\n\nHd' has stated the reasons as to why the vakalats were retained by him, l>y saying that when a complaint petition is sent by the court to the police for inquiry through the complainant himself, the vakala.ts are retained by the lawyer. He has no doubt admitted that he is the maternal uncle of the appellant. 11- I S. C, India/71\n\nSUPRl!MB COURT REPORTS [1971] SUPP. s.c.1:\n\nR. W. 43 Amar Nath has spoken to his knowing Baldev Singh and Dhani Ram and also to the incident which took place in Riasi and their being beaten by the people including the respon dent.\n\nHe has further referred to R. W. 12 requesting him to\n\nacompany Baldev Singh and Dhani Ram to Udhampur for filing a criminal complaint and to his having actually accompanied them.\n\nHe further deposed to R. W. 18 being engaged as a coun sel and to the filing of the complaints by Baldev Singh and Dhani Ram.\n\nIn cros!Hlxamination this witness has stated that the res pondent got the case compromised and the various accused in the criminal complaints were told that if any fine was imposed on them, it will be paid by the respondent and his party, the Jan Sangh.\n\nR. W. 53 Lal Singh, who is the author of Ex. P. W. l /11, in which these allegations Jiave been made, has deposed to the effect that the statements contained therein are all true and correct.\n\nMr. Garg very strenuously pleaded for the acceptance of the evidence, referred to above, which, according to him, establishes the truth of the avennents regarding the filing of the criminal complaints and the proceedings being dropped in view of the compromise entered into between the parties. Mr. Bhalgotra, learned counsel for the respondent, on the other hand, pointed out that even if the above evidence is accepted, in toto, that the allegations that the criminal proceedings were dropped because of the re•-pon dent paying money and asking for a pardon will not stand rstab lished.\n\nThe allegation a person paid money to a complainant to drop the criminal proceedings is a statement relating to the personal character or conduct of that person.\n\nIf so, the counsel urged that the finding of the High Court that the appellant is guilty of corrupt practice is justified.\n\nWe are of the opinion that the evidence referred to above is acceptable and it substantially proves the truth of the allegations regarding the incident referred to in paragraph 16 leading to the filing of the criminal complaints and their not being proceeded with due to compromise arrived at between the parties.\n\nSo far as we could see, the learned Judge has not properly considered the above evidence when he recorded a finding that the allegation• regarding the filing of the criminal complaints and the respondent entering into a compromise arc false and have not been proved to be correct.\n\nThe allegations regarding the attack said to have been made against Baldev Singh end Dhani Ram by some of the people in Riasi including the respondent, is established by the evidence of R. Ws. 37, 12, and 43. Their evidence is corroborated by Ex. P. W. 37 /I, the complaint, stated to have been made before the A. D. M., Udhampur. The ninth defendant in the said complaint is Rishi Kumar Kaushal, the respondent. The substance\n\nBANSI LAL' RIS!ll KUMAR CVaidialingam, i.)\n\nof the complaint is that R. W. 37. and Dhani Ram had come to Riasi on September 14, 1966 where they were given a beating by the accused, named, in the complaint which included the respon dent.\n\nIt abo refers to the fact that the police did not take the complaint on the file and that is why it was being presented before the court.\n\nThat complaint is dated September 19, 1966.\n\nThat the police declined to entertain the original complaint made by R W. 37 and Dhani Ram is borne out by the evidence of R. Ws. 12 and 43.\n\nThat R. W. 37 and Dhani Ram went to Uhampur to file the complaint is also established by the evidence of R. Ws. 12 and 43.\n\nIn fact R. W. 43 speaks to having accompanied Baldev Singh and Dhani Ram to Udhampur to contact the lawyer and have the complaint filed before the court.\n\nAmple corroboration is found for the above evidence in the testimony of an independent witness R. W. 18.. Durga Dutt R. W. 18 is a practising lawyer at Uhdampur and he has spoken to Baldev Singh and Dhani Ram coming to him on September 19, 1966 with a letter of recommendation from one Raghunath Dass and he has also produced the said letter as R. W. 18/ 1.\n\nHe has also produced the two vakalats executed in his favou~ by Baldev Singh and Dhani Ram and they have been marked as Ex. R. W. 18 / 2 and Ex. R. W. 18 / 2A. l; Ie has further referred to the filing of the complaint before the A. D. M. Udhampur and to the court handing over the complaint with a endorsement to the police at Riasi to investigate and report.\n\nNo doubt. this witness has admitted that he is the maternal uncle of the appellant herein, but that circumstance alone will not warrant the rejection of the evidence of this witness. Therefore, it is clear that there was an incident as spoken to by R. VI. 37 in which the respondent also was involved. and in connection with that incident a complaint was actually filed before the A. D. M., Udhampur and as we have already said the respondent was the ninth defendant in the complaint.\n\nR. W. 43 has stated that the respondent Rishi Kumar Kaushal got the criminal case compromised and that the respondent further represented that if any fine was imposed the same will be paid by the respondent and his party. This is an answer elicited from R. W. 43 in cross-examination.\n\nThis answer clearly establishes that the criminal complaint evidenced by Ex. R. W. 37/1 did not proceed further and the matter ended by-the parties entering into a compromise.\n\nNo doubt the respondent has gone to the extent of denying even about the incident of attack spoken to by R. W. 37 and the filing of the complaint.\n\nHe bas further denied that he ever entered into any compromise in respect of any criminal complaint.\n\nWe are not inclined to accept the evidence of the respondent on this point in view of the overwhelming oral and documentary\n\n164 Sl.JPREME COIJRT REPORTS [1971] Sl.JPP. s.c.R.\n\nevidence, which conclusively establishes the events leading up to the filing of the complaint Ex. R. W. 37 / l and to the proceedings being dropped because of a compromise.\n\nNo doubt R. W. 3 7, who was one of the complainants does not speak to any apology being given by the respondent, but we have already pointed out that R. W. 43 has clearly stated that the criminal case was compromised.\n\nIn view of all these circumstances the inference is irre sistable that the criminal case must have come to a close because of a compromise arrived at by the parties and probbly due to 5ome sort of apology given by the respondent.\n\nBut even if it is held that there is no evidence that the respondent actually tendered any apology. nevertheless, as the other allegations are held to 11ave been substantially true, any reference to respondent asking for a pardon in paragraph 1. must only be considered to be a highly exaggerated version given by the author of the booklet.\n\nBut on that ground it cannot be held that the allegations regarding the filing of the criminal complaint are not true.\n\nTherefore. the view of the High Court that the statement in paragraph 16 that the respondent apologised and extricated himself from criminal case by paying money. is false, cannot be accepted, as we are of the opinion, that the said allegation has been proved to be correct. To conclude there are no statements of fact in paragraphs 17 and 20 of Ex. R. W. l / 11 in relation to the personal character or conduct of the respondent.\n\nThere is no allegation in paragraph 16 that. the respondent is an associate of drunkards.\n\nThe averment in the said paragraph that some of the companions of the respondent on whose political support the respondent relies are found drinking from morning till evening, does not relate to the personal character or conduct of the respondent. The allegation in the said paragraph regarding the respondent extricating himself from a criminal cse filed by Baldev Singh and Dhani Ram has been proved to be true and as such falls outside Section 132(4) of the Act. Therefore, it follows that the finding of the High Court that the statements contained in paragraphs 16, 17 and 20 amount to corrupt practke under Section 132(4) of the Act, cannot be sustained.\n\nOn the above conclusion arrived at by us it becomes unnecessary to consider the second contention of Mr. Garg tht the High Court's finding regarding the publication and distribution of the booklet Ex. P. W. II II. is erroneous and is not based upon the evidence in the case.\n\nMr. Bhalgotra, learned counsel for the respondent however, has attempted to support the judgment of the High Court by attacking the findings recorded against his client in respect of paragraphs 7, 8, 10, 18 and 19 in Ex. P. W. I !II.\n\nHe has not attacked the findings recorded by the learned Judge on other allegations of cor rupt practi, e maJc oy tiie respontie1h in hi.< ekc.\n\nKhan R. W .. 50; the respondent was a member of ihe Jan Sangh party; there was a violent demonstration against R. W. 50 and though this witness does not speak to the presence of the respondent, it is cleac that the respondent's father and his election agent were actively participating in the violent demonstration and th\" inference is that the demonstration must have been at the instanceof the respondent.\n\nThe evidence of R. W. 31, shows that a valal of Reasi was present when there was a very violent demonstration against the Minister.\n\nThe reference to the vakil must be to the respondent. P. W. 41 himself has admitted that he was arrested\n\nir: connection with a demonstration against the ruling party in which several people died due to police firing.\n\nAll these circumstances, in our opinion, do establish that the respondent must haw either instigated or had been a party to the violent demonstration referred to in paragraphs 7, 18 and 19 and it cannot be said that\n\nBANS! LAL v. RI~HI KLMAR (Vcidic/ingcm, J.) 171\n\nthe allegations contained therein are false.\n\nIt cannot also be stat- A ed that in view of these circumstances the appellant either believed those allegations to be false or did not believe them to be true.\n\nTherefore, the High Court was justified in coming to the conclusion that these statements in the said paragraphs do not come within the purview of sub-section (4) of Section 132 of the Act and we also agree with the High Court in this respect.\n\nIt follows that the finding of the High Court that paragraphs\n\n7. 8, 10, 18 and 19 of Ex. P. W. ! /II are outside the ambit of Section 132 (4) of the Act is correct.\n\nAs we are accepting the findings of the High Court in this regard, we consider it unnecessary to deal with the question of publication and circulation of the booklet Ex. P. W. I/II.\n\nWe have already held that the state- C ments in paragraphs 16, 17 and 20 do not amount to corrupt practice under Section 132 (4) of the Act.\n\nThe appeal is consequently allowed. The decision of the High Court is set aside and the election petition is dismissed with costs throughout.\n\nG.C.\n\nPeJition dismissed.", "total_entities": 54, "entities": [{"text": "BANSILAL KOHISTANI", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "BANSILAL KOHISTANI", "offset_not_found": false}}, {"text": "RISW KUMAR KAUSHAL\n", "label": "RESPONDENT", "start_char": 20, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "RISHI KUMAR KAUSHAL", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 59, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "J.M. 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null}}, {"text": "Section 132", "label": "PROVISION", "start_char": 70433, "end_char": 70444, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 132", "label": "PROVISION", "start_char": 70639, "end_char": 70650, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 132", "label": "PROVISION", "start_char": 70975, "end_char": 70986, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_172_180_EN", "year": 1971, "text": "CBAJOO RAM\n\nRADHEY SHYAM &: ANR.\n\nMarch 23, 1971\n\n[S. M. SIKRI, C. J., P. JAGANMOHAN REDDY AND I. D. DUA, JJ.J\n\nCode of Criminal Procedure (Act 5 of 1898), ss. 476 and 479-Scope of-Filing of false affidavit if appearing as witness.\n\nPractice-Prosecution for perjury-When should be ordered.\n\nSeveral complaints were made to the District Magistrate by the re8 pondent about the appellant while he was functioning as a Sarpanch. As no action was taken on those complaints the respondent filed a writ peti tion in the High Court praying for a mandamus directing inquiries to be made. 'fhe writ petition was allowed and an inquiry was directed to be held. The inquiry was held by the Sub-Divisional Magistrate and it was held that there were only irregularities committed by the appellant, that be did not abuse his position in any way, and that no action Ot:ed be taken against him.\n\nIn those proceedings the appellant filed an affida vii that he had not acted as Sarpanch during the relevant period but only looked after the work of the Sarpanch.\n\nThe respondent presented an application under s. 476, Cr. P. C., in the Court of the District Magistrate praying for the appellant's prosecution under ss. 193, 181 and 182 1.P.C., for having deliberately filed a false affidavit. The matter was inquired into by District Magistrate and after going through the entire material he held that the case of swearing of a false affidavit was not made out against the appellant.\n\nAn appeal to the Sessions Court and a revision to the High Court by the respondent were dismissed.\n\nTn the course of the writ proceedings in the High Court several affidavits were filed and the appellant asserted in those affidavits also that he had not acted as a Sarpanch during the relevant period. The respondent again moved the High Court by filing an application under s. 476, Cr. P. C., for the appellant's prosecution for making a false statement in his affidavit.\n\nA single Judge of the High Court ordered that a complaint be made against the appellant. The matter was taken on appeal to a Division Bench by the appellant and it was contended that in view of s. 479-A Cr. P. C .. the appellant could not be prosecuted under s. 476 Cr. P. C., bunhe contention was repelled and it was held that a per!l<>n filing an affidavit could not be considered to have appeared as a witness before the Court as con .. templated by s. 479-A.\n\nIn appeal to this Court,\n\nHELD: In s. 479 A(6) it is expressly provided that no proceedings shall be taken under ss. 476 to 479 for the prosecution of a person for giving or fabricating false evidence if in respect of such a person proceedings could be taken under s. 479-A. But under s. 479-A it is only a witness who hal' appeared before the court that can be proceeded against.\n\nIn the present case, the appellant filed a sworn affidavit but it was ont possible to hold that by doing so he appeared as a witness. Since he did not appear as a witness before the High Court s. 479-A was inapplicable and did not operate as a bar to the proceedings under s. 476 Cr. P. C.\n\n[177A-E]\n\nCHAIOO RAii v. RADllEY SHYAM (Dua, J.)\n\n(2) But there is nothing to show that the explanation given by the appellant that he did not act as Sarpanch at the relevant time, but only did his work as a panch, was false. (1798]\n\nA prosecution for perjury should be sanctioned by courts only in those cases where perjury appears to be deliberate and Conscious and a conviction is reasonably probable, and when it is considered expedient in the interests of justice to punish the delinquent; and not merely because there is some inaccuracy in the statement which may be innocent or immaterial.\n\nThere must be a prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. The giving of false evidence and the filling of false affidavits is no doubt an evil which must be effectively curbed but to start prosecuuon for prejury too readily and too frequently and without due care and caution defeats its. very purpose. [l 79E-G]\n\nIn the present case, the material on record was not sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The High Court did not give due weight to the following fats: (a) The appellant was a Panch and was authorised to act as such and bis explanation was not implausible. (b) In the order of the District Magistrate, which was confirmed by the Sessions Judge, it had bee11. considered inexpedient to initiate prosecution on substantially the same charge. (c) There was a long lapse of time of more than 10 years since the filing of the affidavit, and during this time, the appellant must have suffered both mentally and financially,\n\n(d) In view of the nature of the alleged prejury such a long delay also militates against the expediency of prosecution. (1790-H; 180A-C]\n\nCR!MINAL APPELLATE JURISDICI10N : Criminal Appeal No. 195 of 1968.\n\nAppeal by special leave from the judgment and order dated March 13, 1968 of the Allahabad High Court, Lucknow Bench in Criminal No. 175 of 1964.\n\nD. P. Uniyal and S. S. Shukla, for the appellant.\n\nR. N. Sharma, C. P. Lal and N. N. Sharma. for respondent .,, No. !.\n\n0. P. Rana, for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nDua, J\".-This appeal by special leave is directed against the judgment and order of a Division Bench of the Allahabad High Court dated March 13, 1968 affirming the order of a learned single Judge of that Court directing that a complaint be filed against the appellant for his prosecution for making a false statement in para IO of his affidavit dated July 6, 1960 to the effect that he had not been acting as Sarpanch till December 7, 1957.\n\nThe relvant facts necessary for understanding the controversy may now be briefly stated. Chajoo Ram. appellant, was elected\n\nSarpanch of the Nyaya Panchayat of Risia Bazar, Tehsil Nanpora, District Bharaic at the election held for that office on October 29, 1956.\n\nRadhey Shyam (respondent in this Court) who was defeated in that election filed an election petition which was dir.missed on June 3, 1958. During the trial of that petition\n\nn injunction was issued restraining the appeallant from functioning as a Sarpanch. That order remained in force from December 3, 1956 to December 10, 1957.\n\nAfter the dismissal of the election petition, the appellant started. functioning as Sarpanch.\n\nSeveral complaints also seem to have been made by Radhey\n\nShyam and some others to the District Magistrate, alleging ircegularities to have been committed by the appellant. As no action was taken on those complaints Radhey Shyam, respondent, filed a writ petition (W.P. No. 89 of 1960) in the Allahabad High Court praying for a mandamus directing enquiries into the allegations contained in his complaint against the appellant.\n\nThis writ petition was allowed on September 4, 1961 and a writ of mandamus was issued directing the District Magistrate and the Sub-Divisional Magistrate to hold an enquiry against the appellant but the question of determining whether it was in public interest to hold an enquiry was left to those authorities. In the course of the writ proceedings several affidavits were filed in the High Court by the contesting parties. We art, however, or.ly concerned \\>lith para 10 of the affidavit dated July 6, 1960 filed by the appellant. That paragraph reads :\n\n\"That the deponent was not acting as a Sarpanch till 7th December, 1957, when he was given over charge of the office of Sarpanch by opposite party No. 4 Chhotey Lal Sahayak Sarpanch. Except the cases mentioned below none were entrusted to the benches by the deponent but were entrusted by the .sahayak Sarpanch opposite party No. 4 who was acting in place of the deponent under the orders of the court after the petitioner had filed election petition. The cases mentioned below were dealt by the deponent nnder the old procedure in the absence of any directions issued to him.\"\n\nThen four cases are mentioned which had been filed in November, 1956.\n\nIn order to fully appreciate the contents of this paragraph it is necessary to reproduce paras 9 and 10 of Radhey Shyam's affidavit dated March 28, 1960 to which the appellant's affidavit dated July 6, 1960 was a reply: -\n\n\"9. That the Sarpanch (opposite party No. 3) referred many cases to the Special Bench constituted by him. 21 cases out of the first list of 22 cases were allotted to this Special Bench by him. Further ont of 62 criminal cases and 35 civil cases institnted in the year 1956-57 the\n\n'Bench consisting of the deponent as a Panch (Bench No. I) was allotted only 16 criminal and 8 civil cases whereas, it should have been allotted 21 criminal and 12 civil cases.\n\n10. That in many cases the deponent was not informed of the elates of the hearing fixed by Sarpanch and many a time he could not, therefore, present himself in the Bench and the cases were decided in his absence.\n\nSarpanch, who was not a member of this Bench, participated in the proceeding8 of this Bench.\"\n\nIn reply to para 9 of this affidavit the appellant had stated in his affidavit of July 6, 1960 :-\n\n\"There is no dispute with regard to the procedure laid down in this paragraph. It is a new amendment.\"\n\nThere was a rejoinder affidavit dated July 15. 1960 filed by Radhey Shyam in which reply to para 10 of the appellant's affidavit dated July 6, 1960 is contained in para 8 and it reads as follows : -\n\n\"Regarding para 10-it is false and denied that Chajon Ram, did not act as Sarpanch till the 7th December, 1957. As a matter of fact he was acting as Sarpanch throughout in violation of the stay order passed against him. It is also denied that other cases except those mentioned by Chajon Ram in this para were not referred to the Benches by him.\n\nChajoo Ram was throughout acting as Sarpanch and he in that capacity referred caRes to benches according to his choice. The procedure followed by Sri Chajon Ram opposite party no. 3 was in violation of the procedure laid down in the Panchayat Raj Act and the Rules framed thereunder.\n\nThe rest of the contents of this para are denied.\"\n\nTbe appellant filed a counter-affidavit dated July 24, 1960 to this rejoinder.\n\nAs we are only concerned with the contents -0f para 10 in the appellant's affidavit dated July 6, 1960 we need only refer to the relevant assertions in this counter-affidavit.\n\nIn para 1 the deponent stated that he had not been acting as a Sarpanch on June 6, 1957 and with regard to annexure 34 it was submitted that the entire document had been written by Shri B. P. Joshi, Mantri whose duty it was to see that the provisions of the Panchayat Raj Act and Rules and bye-laws made thereunder and all orders issued or authorised by the Government or pres- <:ribed authority were complied with by the Gaon Panchayat and Nyaya Panchayat and to bring to their notice any irregularity\n\n176 SUPREME COUllT llEPOJ.TS [1971] SUPP. s.c.R.\n\nor omission on their part. Shri Chhotey Lal, Sahayak Sarpanch: had gone out on June 3, 1957 and had asked the deponent to do ministerial work which he could do under the Act.\n\nRadhey Shyam, respondent, filed a further rejoinder to this counteraffidavit on the same day viz. July 24, 1960 but in this rejoinder nothing new was stated on this point\n\nOn December 10, 1962 Radhey Shyam, respondent, moved in the High Court an application under s. 476, Cr. P. C. for the appellant's prosecution.\n\nThe learned single Judge directed by his order dated January 27, 1964 that a complaint be made against the appellant in respect of two counts, one of them,. which survives for our consideration, being that he had made a false statement in paragraph 10 of his affidavit dated July 6, I 960 io the effect that he had not been acting as Sarpanch till December 7, 1957. On Chajoo Ram's appeal before a Division Bench it was urged on behalf of Radhey Shyam as a preliminary point that the appeal was premature. This point was referred to a Full Bench, which answered the reference negativing the preliminary objection. When the appeal came back to the Division Bench it was argued on behalf of the appellant that in view of the provisions of s. 479-A, Cr. P. C. no prosecution could be taken under s. 476 of the Code. This contention was repelled and it was held that a person filing an affidavit in court could not be considered to have appeared as a witness before that court as contemplated by s. 479-A Dealing with the merits the Division Bench of the High Court observed that the respondent had placed on the record four receipts (nos. 39 to 42) and \"a copy of the report supposed to have been submitted by the appellant as Sarpanch to the Panchayat Raj Officer\" indicating that the appellant had acted as Sarpanch between June 4 and June 6, 1957.\n\nThe appellant's explanation, that Chhotey Lal, Sahayak Sarpanch was on leave from June 4 to June 11. I 957 and that the appellant had merely worked for Chhotey Lal in those days, was not accepted for the reason that this explanation was neither included in the affidavit filed by the appellant in reply to the application under s. 476, Cr. P.C. nor in a supplementary affidavit filed by him in connection with some other matter.\n\nThe fact that Radhey Shyam, respondent, was prompted by considerations of malice in initiating these proceedings was considered to be immaterial. With respect to the second statement, which was also the subject matter of the learned single Judge's direction, the Division Bench held that charge to be unsustainable and the order of the single Judge directing a complaint to be filed with respect to that charge was set aside.\n\nThe appeal was accordingly allowed in oart and in regard to para 10 of the affidavit dated July 6, 1960 it was dismissed. It is this order \\\\1tich is assailed before us.\n\nCHAJOO RAM v. RAD!lEY SlfYAM (Dua, J.) 171\n\nThe first point which was pressed before us relates to the , A effect of s. 479-A, Cr. P.C. This section was added to the Code of Criminal Procedure by Act 26 of 1955 with the object of eradicating the evils of perjury. It overrides the provisions of ss. 476 to 479. Jn sub-s. (6) it is expressly provided that no proceedings shall be taken under ss. 476 to 479 (inclusive) for the prosecution of a person for giving or fabricating false evidence if in repect of such a person proceedings may be taken under this section. The question to be seen, however, is if s. 479-A applies to the present case.\n\nSub-section (I) of this section, so far as relevant, lays down that not withstanding anything con- , tained in ss. 476 to 479 (inclusive) when a civil, revenue or criminal court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of judicial proceedings or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding it may, after complying with the other conditions contained in this section, make a complaint in writing and forward the same to a magistrate. The crucial point to be noticed in this section is that it is only a witness who has appeared before the court who can be proceeded against.\n\nNow, the appellant quite clearly did not appear as a witness before the High Court.\n\nHe undoubtedly filed sworn affidavit but it is not possible to hold that by doing so he could be said to have appeared as a witness. Section 479-A, Cr. P. C. is, therefore, inapplicable and it cannot operate as a bar to thf\\ proceedings under s. 476, Cr .P.C.\n\nBefore dealing with the merits of the case we consider it proper to refer to the proceedings before the District Magistrate, Bharaic pursuant to the order of the High Court dated September 4, 1961. An enquiry, it appears, was got made by the District Magistrate through the Sub-Divisional Magistrate (Shri Nageshwar Singh). According to the report of the Sub-Divisional Magistrate dated January 4, 1963 Chajoo Ram, appellant, was only found lo have committed some irregularities in disposing of the cases but without any dishonest motive on his part.\n\nJn the opinion of the Sub-Divisional Magistrate, no action was called for against the appellant. It appears that the District Magistrate on February 17, 1963 desired a, further probe into the matter. Shri K. P.\n\nMathur, S.D.O. after going through the records of the Nyaya Panchayat once again endorsed the report of his predecessor observing :\n\n\"I also agree .with Shri Nageshwar Singh that the allegations had no mala fide intention, the irregularities that had been found were due to inexperience or ignorance and are mostly commonly found in all Nyaya Panchayats not only in this district but in other districts\n\n12-1 S.C. Ind; a/71\n\nalso. Shri Chajoo Ram does not appear to have abused his position in any way.\"\n\nIt appears that in those proceedings also the appellant had filed an affidavit on December 8, 1961, affinning that he had not acted as Sarpanch for one year and that Chhotey Lal. Sahayak Sarpanch looked after the work of the Sarpanch during that period. Radhey Shyam, respondent, presented an applicat10n Under s. 476, Cr. P. C. in the court of the District Magistrate also praying for the appellant's prosecution under ss. 193/181/182, I.P.C. for having deliberately filed a false affidavit. The matter was enquired into by the District Magistrate and after going through the entire material placed before him he came to the conclusion that the explanation given by Chajoo Ram was quite plausible and it was \"doubtful to deduce\" from the material placed before him \"whether he had really acted as a Sarpanch of the Nyaya Panchayat or only as a Panch''. The District Magistrate specifically referred to the files of some cases on which Radhey Shyam had relied in support of his allegation that the appellant had acted as Sarpanch but the District Magistrate was unable to uphold this allegation. Four receipts nos. 77 and 59 to 61 were also relied upon by Radhey Shyam in support of his allegation but here again the District Magistrate was unable to hold that the appellant had acted as Sarpanch. As a result of the preliminary enquiry the District Magistrate held that the case of swearing a false affidavit was not made out against the appellant , and the notice issued to him was discharged on May 4, 1964.\n\nRadhey Shyam took the matter on appeal to the court of the Sessions Judge assailing the order of the District Magistrate dated May 4, 1964, but without success. That court also came to the conclusion that the appellant was not shown to have acted as Sarpanch during the period in question. The final conclusion of the Sessions Judge was expressed in these words.\n\n\"The Court has also to consider whether after filing a complaint there is a possibilty of conviction. The laches pointed out on behalf of the appellant committed by Chajju Ram can be explained easily in law courts.\n\nI agree with the learned counsel for the respondent that the possibility of the conviction of the respondent appears to be quite remote.\n\nThe learned court below after carefully considering all the facts and circumstances of the case came to the conclusion that it is not a fit case in which a complaint should be filed, and I agree with this view of the learned court.\n\nAll the circumstances have been fully explained by Chajju Ram.\"\n\nWe are informed at the bar that a revision to the High Court against the order of the Sessions Ji:.-ige was also dismissed but that order is not included in the printed record.\n\nBefore us reliance has been placed on four receipts viz. receipt no. 59 and 60 dated June 4, 1957 for 12 ps. as price of application fonn, receipt no. 61 dated June 6, 1957 on account of price of application fonn and receipt no. 77 dated June 4, 11957 for 53 ps. on account of summons fee which is said to have been received by the appellant. On these days, according to the appellant, the Sahayak Sarpanch was on leave. There is nothing to suggest that this explanation is false and we do not think that on the basis of these three receipts the appellant can be said to have acted as a Sarpanch. It is not shown that this was the function only of the Sarpanch and a Panch could in no circumstances sign a receipt. The next document on which reliance is placed is a kind of a report to the Panchayat Raj Officer dated June 6, 1957 informing him tha.t some Panchas had not attended since the establishment of the Panchayat. In this document the appellant's signatures and the signatures of the Secretary, B.P. Joshi, both appear below the endorsement forwarding this report to the Panchayat Inspector for infonnation and necessary action.\n\nThis was explained by the appellant in his affidavit where he stated that the Secretary had inserted the word \"Sarpanch\" and on the appellant's objection to the use of this word, the Secretary had replied that this was a fonnal matter. From this document also we do not think it is possible to bold that the appellant intended to act as Sarpanch on June 6, 1957.\n\nThe prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely.\n\nNo doubt giving of false evidence and filing false affidavit is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial.\n\nThere must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial: it does not reflect the requisite judicial deliberation : it seems to have ignored the fact that the appellant was a Panch and authorised to act as such and his explanation was not implausible. The Hi2h Court further appears to have failed to give requisite weight to the\n\norder of the District Magistrate which was confirmed by the Sessions Judge, in which it was considered inexpedient to initiate prosecution on the charge of alleged false affidavit that the appellant had not acted as Sarpanch during the period of the stay order.\n\nThe subject matter of the charge before the District Magistrate was substantially the same as in the present case. Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against expediency of prosecution.\n\nAnd then by reason of the pendency of these proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially.\n\nIn view of all these circumstances we are constrained to allow the appeal and set aside the order directing complaint to be filed.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 35, "entities": [{"text": "RAM\n\nRADHEY SHYAM &: ANR", "label": "RESPONDENT", "start_char": 7, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "RADHEY SHYAM & ANR", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 51, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "P. 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PHOOL KUMARI & ORS.\n\nMarch .24, 1971\n\n[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.)\n\nHindu Law-Family arrangeme11t-Principles for deciding wh<'lher a doc111nent is jan1ily arrange111ent.\n\nAdverse possession-When established.\n\nRaj Kun1ar, the common ancestor of the parties had four sons-Lalji Singh, Amar Singh, Ramji Singh and Raghunandan Singh.\n\nAmar Singh had three sons, namely, Sonadhari. Girwardhari and Nankhu father of present appellant.\n\nIn 1898 Amar Singh purchased the land on which the house in dispute stood from his own funds but in the name of his brother Lalji Singh.\n\nNankhu was taken in adoption by Ramji Singh.\n\nShortly thereafter, in 1915, a document .Ex. l was executed between Raj Kumar's descendants.\n\nIn it the claim of Nankhu to a half share in the house in dispute \\\\'as recognised.\n\nTn 1949, Nankhu and the appellant filed the instant suit for a declaration of their half share in the house in dispute.\n\nThe defendants (present respondents) were the branches of Sonadhari and Girwardhari. The suit Vias resisted inter alia on the following grounds:\n\n(i) that Ex. I was not a family arrangement but only a deed of relinquishment; and therefore Nankhu who had no anterior title to the house in dispute did nOt acquire any interest in it by virtue of Ex. I: (ii) that even if he had an interest in the house he lost it by reason of adverse possession by the respondent. The trial court decreed the suit. The decree was upheld by the Single Judge of the High Court. The Division Benoh however decided both the points of dispute in favour of the respondents.\n\nIt held that there was no dispute or conflict of interest between the branches of Amar Singh and Ramji Singh, and that Amar Singh and Nankhu had acted in concert in the execution of Ex. I which was therefore not a family arrangerr, ent.\n\nIt upheld the claim of the respondents that Nankhu and the appelb.nt had lost title to the house by the adverse possession of the respondentli. The visits of Nankhu and hi;; wife to the house were he!d by the Division Bench to be 'in the nature of visits of guests of the defendants'. In appeal to this Court against the judgment of the High Court.\n\nHELD: (i) The arrangenient under challenge has to be considered as a whole for ascertaining v.hether it was made to allay disputes, existing or apprehended, in the interest of harmony in the family or the preservation of property. lt is not necessary that there must exist a dispute actual or possible in the future, in respect of each and every item of property among all members arraigned one against the other. It v.ould be suffi. cient if it is shown that there were actual or possible claims and counterclaims by parties in settlement whereof the arrangement as a whole had been arrived at, thereby ackDO\\vledging title in one to whom a particular property falls on the assumption (not actual existence in law) that he had an antelior title therein. [191 F-GJ\n\nPullaiah v. Narasilnluun, A.LR. 1966 S. C. 1837, Sahu Madho Das v.\n\nM11kund Ranr, [1955] 2 S.C.R. :?1 and Rani Mewa Kuwar v. Rani Hulas Kuwar. (1873-74) LR. l I.A. 157 at 166, applied.\n\n18 l\n\nSUPREME COURT REPORTS [1971] surr. s.c.&.\n\nWilliams v. Williams, (1867) 2 Ch. A. 294, referred to.\n\nAn examination of the terms of Ex. 1 showed that it was iocorm:I I<> assume, as the High Court did, that in the disputes amongst the different branches of the family, Nankhu and Amar Singh were actina in~. or that there was no conflict of ioterest among them. The parties to Ex. 1 arrived at a settlement in view of claims and cross claims by 10n.e aa; ain'it the others. Taken as a whole and in the light of the recitals and tho statements in the operative part of the document indicating conflict amongst the members of the family, the document represented an arrangement bona fide entered into, for settling existing or at any rate apprehended disputes, and therefore, satisfied the tests of a family arrangement laid down in the decisions of th~ Court. In this view Nankhu must be said to have ac~ quired a half share in the house in dispute under Ex. I. [193 H, 194 E-G]\n\n(ii) Adverse posses.sion has to have characteristics of adequacy, conti~ nuity and exclusiveness. The onus to establish these characteristics is on the adverse possessors.\n\nAccordingly, if a holder of title proves that be too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession the title which he holds. As between co-sharers, the possession of one con sharer is in law the possession of all co-sharers. Therefore to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. As between them therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. But once the possession of a cosharer has become adverse as a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse possession.\n\nHe must actually and effectively break up the exclusive possession of bis co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. For this purpose the mere fact that a dispossessed co-sharer comes and stays for a few days as a guest is not sufficient. [194 H-195 El\n\nKutha/i Moothavar v. Paringati Kunharankutcy, (1921) 48 LA 395, 404, Lakshmi Reddy v. Lakshmi Reddy, [1957) S.C.R. 195, 202, Moham\n\nmad Bagar v. Naim-un-Nisa Bibi, A.l.R. 1956\n\n\nA.mmakannu A.mmal v. Naravanaswami Mudaliar, A.l.R. 1~23 Mad. 633, approved.\n\nIo view of the evidence in the present case the Division Bench was not justHied in interfering with the finding of fact concurrently given by the Trial Court and the learned Single Judge that the adverse possession by Baijnath which commenced from 1933 was sufficiently interrupted by acts of possession by Nankhu, and therefore his title was not extin&uished by adverse possession. [199 ABl\n\nH The appeal must accordingly be allowed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1655 of 1966.\n\ns. P. SINGH v. PHOOL IWMARI (She/at, J.) 183'\n\nAppeal from the judgment and decree dated August 25, 1964 A. of the Patna High Court in Letters Patent Appeal No. 119 of 1958.\n\nD. Goburdhun and R. Goburdhun, for the appellant.\n\nS. V. Gupte, D. P. Singh and N: Nettar, for respondent No. I.\n\nU. P. Singh for respondents Nos. 2 to 4.\n\nThe Judgment of the Court was delivered by\n\nSbelat, 1.-Two questions arise in this appeal. The first is whether the transaction evidenced by Ex. 1, dated March 20,\n\n191 S was a family arrangement so as to confer on the appellant and bis father, Nanhku Prasad, smce deceased, title to a half share in the house in dispute. The second is that even if it was so, whether such title became extinguished as a result of adverse possession for the statutory period by Baijnath, the deceased husband of respondent I.\n\nThe parties are near relations.\n\nThe following genealogy explains the relationship amongst them :\n\nLalji Singh\n\nI I l Sub• F•UJdar\n\nI .\n\nSonadhar1\n\nI Tarkc•hwar Pd.\n\nalias Daljit (Deft. No. 2)\n\nI (sons of Deft. 2-Nos. 3 to 7)\n\nRajkumar Singh\n\nAmar 1singh Ramjj Singh Reshmi Kuer Patreja Kuor\n\nI Balkcshwar\n\nI Deena th\n\nGirwardhari\n\nBaijnacl Pd. alias NanuBabu died in 1948 Phu! Kumari Devi (widow) Deft. No. 1.\n\nI NanhkuPd.\n\nSingh (PIH'. No. I)\n\nSham~Pd.\n\nSingh (PIH'. No. 2)\n\nI Raghunandan\n\nSingh\n\nKamaldhari\n\nI KamtaPrasad\n\nThere is no dispute that Amar Singh purchased from his\n\nown funds under a registered deed, dated January 20, 1898, the fl Uand on which the house in dispute stands.\n\nHis son, Nankhu, the deceased father of the present appellant, was taken in adoption sometime prior to March 20, 1915 by Ramji Singh and bis wife Patreja Kuer as they had no issue, whereupon Nankhu ceased\n\nSUPREME COURT REPORTS (1971] SUPP. s.c.R\n\nto have any interest in the properties owned by Amar Singh and his_ branch.\n\nIn 1933, Nankhu and the present appellant, then a minor, filed Suit No. 33 of 1933 against Sonadhari Tarkeshwar, Baijnath and Reshmi Kuer (the widow of Amar Singh, wrongly described by the High Court as the wife of Rajkumar in tlie genealogy set out in its judgment) in respect of certain properties. which had nothing to do with the house in dispute. The written statement filed in that suit was that Nankhu had been paid the price of his share in the house in dispute and that the entire house, consequently, belonged to and was since then in the exclusive possession of the defendants. That suit went upto the High Court when in 1941 a compromise application was filed by the parties settling that suit.\n\nBut, as the suit had nothing, as aforesaid, to do with the house in dispute, nothing was said about the allegation that Nankhu had been paid off ih respect of his interest in that house.\n\nIn 1949, Nankhu and the appellant filed the instant suit for :a declaration of their half share in the house in dispute.\n\nIn answer to the suit, the respondents raised three defences : (!) that Nankhu and the appellant derived no interest under Ex. I. Q) that assuming that they derived such interest, it was relinquished by them on being paid the price thereof, and (3) that in any event they Jost their interest by reason of adverse possession by the respondents The Trial Court rejected all the three defences raised by the respondents and decreed the suit, holding that Nankhu had acquired one half share in the said house under Ex. I.\n\nAgainst that decree, two appeals were filed in the High Court, one by respondent 1 and the other by some of the other respondenls. These appeals were heard first by a learned Single Judge of the High Court. Before the learned Single Judge, the finding of the Trial Court that Nankhu and the present appellant had not relinquished their interest in the house on their being paid the price thereof was not disputed. The only questions agitated before the learned Single Judge, therefore, were whether Nankhu Jtad a half share, that is to say, whether he derived his title to lhe half share under and by virtue of Ex. I, and if so, whether he lost it as a result of adverse possession by the respondents.\n\nIn respect of the first question, the parties urged two conflicting pleas.\n\nNankhu and the appellant contended that Ex. I was a family arrangement under which he got half share in the house and. that that family arrangement was valid and binding on the parties. The respondents, on the other hand, contended that Ex. I was only a Ladavi deed, that is, a deed of relinquishment. The argument on behalf of Nankhu and the appellant was that there were outstanding disputes between the different branches of the family of Rajkumar, and those disputes\n\ns. P. SINGH v. PHOOL KUMAR! (She/at, J.)\n\nwere ultimately settled at the instance of and with the aid of certain family friends resulting in Ex. 1 by way of a family\n\n~•rrangement. Therefore, even if Nankhu and the appellant were not able to show their anterior title to the house, they were entitled under Ex. J to a half share therein. The learned Single Judge accepted the contention raised by Nankhu and the appellant.\n\nHis reasoning in this connection was that although the land on which the suit house stood was purchased by Amar Singh out of his own funds, it was purchased in the furi name of Lalji, but there was no evidence that Lalji ever admitted to be the\n\nfuridar of Amar Singh. Consequently. though Nankhu, by his\n\n\"doption. lost all interest in the properties of Amar Singh, yet the fact that in Ex. I Amar Singh acknowledged Nankhu having a half share in the house indicated that there was some apprehension in the mind of Amar Singh of a future dispute and that it was such an apprehended dispute which Ex. I. while dealing with the house. settled. The learned Single Judge added that even assuming that there was no existing or apprehended dispute and the settlement was made out of consideration for the peace of the family or preservation of its properties, the settlement would have to be regarded as a family arrangement. Regarding the plea of adverse possession, he upheld the finding of the Trial Court that Nankhu and the appellant had established their acts of possession during the statutory period. and that conse quently, the continuity and exclusiveness of the respondents' adverse possession had been disrupted.\n\nOn these findings. he dismissed the appeals and confirmed the decree passed by the Trial Court.\n\nRespondent I thereupon filed a letters patent appeal which was heard bv a Division Bench of the High Court. The same two questions were reagitated. namely. as to the nature of Ex. 1, :rnd as to the adverse possession.\n\nOn the first question. the F reasoning adopted bv the Division Bench was on ihe following lines : -\n\n(!) that the executants of Ex. 1 formed three conflicting groups, namely, -\n\nta) Suba, Faujdar and Balkeshwar. constituting one group G of members of Lalji's branch, being executants 1 to 3;\n\ntbl Raghunandan and his son. Kamaldhari. being executants 4 and 5 and constituting Raghunandan's branch; and - -\n\n(c) Amar Singh for himself and as the guardian of Baijnath, then a minor, Sonadhari for himself and as guardian of his minor son, Tarkeshwar, and Nankhu, who had,\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.lt.\n\nas earlier stated, gone to the line of Ramji on his adoption, being executants 6, 7 and 8;\n\n(2) that the disputes, in settlement of which Ex. l was executed by these three groups, were, as its recitals sh0w :\n\n(a) conflicting claims made by the said three sets of executants as to whether they were joint or separate in status, the claim of executants l to 3 being that all the members of Rajlrumar's family were still members of an undivided Hindu family, and that therefore, 11lthough the properties stood in the names of and were in possession of individual members, they continued to be joint family properties including properties standing in the names of female members, namely, Reshmi and Patreja;\n\n(b) the allegation by executants 4 and S (Raghunandan's branch) that all the four branches of Rajlrumar's four sons were separate and yet claiming share in the properties standing in the names of members of Lalji's branch, and\n\n(c) the claim by executants 6, 7 and 8 (Amar Singh, Sonadhari and Nankhu-by now in the line of Ramji) that the parties were separate in status, and therefore, the properties in the names of the two said females belonged exclusively to them and the members ofthe other branches had no interest whatsoever in them;\n\n(3) that the Trial Court and the learned Single Judge were in error in holding that what Ex. l did was to evidence relinquishment by the rest of the members of the family of their claims in properties standing in the names of or in possession of particular members, and thereby acknowledging their anterior title in such properties.\n\nIn fact Nankhu had no such anterior title, nor could be in law have any such title in the house in dispute in view of bis having got out of Amar Singh's branch as a result of his adoption by Ramji;\n\n(4) that there was no subsisting or apprehended dispute between Amar Singh and his family, on the one band, and Nankhu on the other, the latter not having made any claim for a share in the house in dispute, and that therefore, there was no question of preservation of peace or family property, there being nothing on record to show that Nankhu had held out any threat to the family peace or pro~ therefore, there was a total want of mutuality as in consideration of Nankhu getting a half share.\n\ns. P. SINGH v. PHOOL KIJMAlll (Shelat, J.)\n\nAmar Singh got nothing in return and cases of the type of Williams v. Williams(') had no application;\n\n(5) that the recitals in Ex. 1 showed that the only dispute which prevailed at the time was \"branchwise\" and in that dispute Nankhu did not set up any contest against Amar Singh and his branch and indeed, both of them acted in concert, both claiming that the members of Rajkumar's family were separate and the properties standing in the names of Reshmi and Patreja were their exclusive properties;\n\n(6) that acknowledgement of exclusive title of Amar Singh\n\nand Sonadhari (exccutants 6 and 7) to certain properties, and likewise acknowledgement of exclusive title of Nanhku (executant No. 8) to certain other properties set out in paras 3 and 4 of Ex. 1 were not by way of settlement of any existing or apprehended dispute between them, and therefore, that part of Ex. 1 could not be regarded as providing any consideration for conferring the half share in the disputed house on Nanhku.\n\nOn this reasoning the Division Bench declined to treat Ex. 1 as a family arrangement. The conclusion of the Bench clearly signified that it had relied on two fundamental premises: (1) that there were only three sets of executants, the third set consisting iof executants 6, 7 and 8, and (2) that Amar Singh and Nanbku ltad acted in concert as there were no conflicting claims by and between them.\n\nIn view of this conclusion there was no need for the Division Bench to go into the question of adverse possession. However, it decided to do so for the reason that although the finaing on the question of adverse possession was concurrent, it had been seriously challenged before it.\n\nOn this question, the Division Bench firstly relied on the Municipal Assessment Register for 1900-1901, (Ex. D), and the extract from the Demand Register of a Patna Municipality for 1915-16, ect thereof in any manner and on any allegation\".\n\nFollowing up the am.ngement made in Paras 1 to 4, four schedules giving particulars of properties which were acknowledged to be belonging to the four sets of executants were appended to Ex. 1.\n\nAs regards two houses, one at Rajipur and the other in dispute, Schs. 3 and 4 both set out a half share in them as belonging to executants 6 and 7 and the other half as belonging to executant 8, i.e. Nanhku, in each of them.\n\nAs already stated, the fundamental premise on which the Division Bench proceeded to consider Ex. 1 was that there were three sets of executants, namely, those belonging to Lalji's branch, i.e., executants 1 to 3, those belonging to Raghunandan's branch, i.e., executants 4 and 5, and the third set consisting of Amar Singh and Sonadhari executants 6 and 7, and Nanhku, executant 8.\n\nThe second premise on which the Division Bench rested its entire reasoning was that whereas there were disputes between the three sets of executants, there were no disputes between Amar Singh, Sonadhari and Nankhu, that in fact the three of them acted in concert, and that therefore, one half share . given to Nanhku in the house in dispute was altogether voluntarily given without any anterior title and without any claim or dispute raised by Nanhku in respect thereof.\n\nIn our view, both the premises were incorrect rendering the conclusion drawn therefrom untenable.\n\nIt is true that Amar Singh had in 1898 purchased out of his own moneys the land on which the suit house stands.\n\nIt is\n\ns. P. SINGH' PHOOL KUMAR! (Shelat, J.)\n\nalso true that Nanhku was adopted sometime before the execution of Ex. I. and therefore, on the date of its execution he could not have any valid, claim enforceable in law any property belonging to Amar Singh and his branch. But, as stated earlier, a dispute or a contention, the settlement of which can constitute a family arrangement, need not be one which is actually sustainable in law. The harmony in a family can be unsettled even by competitive and rival claims which cannot be upheld in law.\n\nTherefore, if Amar. Singh and the other executants or some of them were to challenge, for instance, the factum or the validity of Nanhku's adoption, or if notwithstanding his adoption, Nanhku were to make a claim in properties held by Amar Singh and his hranch or if some of the e.xecutants were to claim that the family of Rajkumar was still a joint and undivided family or that though the members of the family were separate, the properties held in the individual names of some of them including Reshmi K uer and Patreja Ku er were joint, there would be sufficient disputes to constitute a settlement of them a family arrangement.\n\nA claim. made by executants I to 5 that the properties held_ by Reshmi Kuer and Patreja Kuer were not their separate properties but were joint family properties, liable to be partitioned amongst all, was bound to affect both Amar Singh and Nanhku. If such a claim were to be persisted and dragged to\n\nt1 court of law there is no gainsaying that it would ; put into\n\njeopardy not only the interests of Amar Singh and Nanhku but also the harmony of the family.\n\nThe recitals in Ex. 1 clearly show that whereas members of Lalji's branch were claiming that the family was still joint and undivided, and therefore, they had interest in all the properties irrespective of their standing in the names 0! particular individuals, Raghunandan and his son claimed that the members of lhe family were not joint and yet clailned share in all the properties including those standing in the names of Reshmi Kuer and Patreja Kuer. Thus the claims by executants 1 to 5 were definitely hostile to the interests of Amar Singh to the extent of the properties standing in the name of Reshmi K uer and of Nanhku to the extent of the properties standing in the name of Patreja Kuer. The claims made by the branches of Lalji and Raghunandan sought to bring all the properties into botch patch including those held by Reshmi Kuer and Patreja IKuer, thus, affecting the rights of A\\Jlar Singh and Nanhku in the different properties and not the sam~;!>roperties. Their interests, therefore, were not identical and there was thus no reason\n\n.193\n\nfor them to act jointly. Indeed, there was no evidence what-\n\n. H soever and nothing in Ex. 1 itself to show that they were acting In concert as assumed by the Division Bench.\n\n13-1 s. a. lndia/71\n\nSIJPJUl)IB COURT REPORTS [1971] SUPP. s.c.R.\n\nIt is true that the recitals in Ex. 1 do not expressly set out any conllict of claims between Amar Singh and Nanhku. Never- :theless, it is significant that in para 4 of Ex. 1 the exccutants\n\nfuimd it necessary to insert therein a declaration not only by executants 1 to S, but also executants 6 and 7 that Nanhku was the adopted son of Ramji and Patreja Kuer, that on the deatli of Patreja Kuer he, as such adopted son, was absolutely entitled to the properties set out therein in addition to those which stood in the name of Patreja Kuer. If the adoption of Nankhu was accepted by all and was not made the subject matter of any ijoubt or dispute, there was no necessity of including such a declaration and in particular joining executants 6 and 7 in such a declaration. If Amar Singh and Nanhku were acting in concert why had Amar Singh and his son, Sonadhari as executants 6 and 7, to be joined as declarants to the adoption of Nanhku.\n\nPara 4 of Ex. 1 also shows that there were certain bonds and mortgage deeds standing in the name of Patreja Kuer which jwere acquired from out of the personal funds of Ramji.\n\nSuch a statement had to be acknowledged in paragraph 4 presumably :because rights in those bonds and deeds were not admitted to be the exclusive rights of Patreja. If those rights were to be treated as joint family property, as claimed by executants 1 to S, Amar Singh would get a share in them and to that extent hls interest must be said to be in conllict with that of Nanhku.\n\nA simi1ar result would follow if properties standing in the name of Reshmi Kuer were to be treated as joint family properties. It would not, therefore, be correct to assume that in the disputes amongst the different branches of the family, Nanhku and Amar Singh were acting in concert or that there was no conflict of interest between them. In our judgment, the parties to Ex. 1 arrived at a settlement in view of claims and cross claims by some against the others. Taken as a whole and in the light of the recitals and the statements in the operative part of the document indicating conflicts amongst the members of the family, the document represented an arrangement bona fide entered into, for settling existing or at any rate apprehended disputes, and therefore, satisfied the tests of a family arrangement laid down m the decisions earlier referred to.\n\nIn this view Nanhku must be said to have acquired a half share m the house in dispute under Ex. 1.\n\nOn the question of adverse possession by a co-sharer against another co-sharer, the law is fairly we!) settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessor.\n\nAccordingly, if a holder of title proves\n\ns. P. SINClH v. PHOOL KUMA!tl (She/at, J.)\n\nthat he too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse posses- 11ion as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession the title which he holds. (see Kuthali Moothavar v. Paringati Kunharankutty('). As between co-sharers, the possession of one co-\n\nharer is in Jaw the possession of all co-sharers. Therefore, to constitute adverse possession, ouster . of the non-possessing cosharer has to be made out. As between them, therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. (see Lakshmi Reddy\n\nv. Lakshmi Reddy(') and also Mohammad Baqar v. Naim-un-Nisa Bibi.('\" But, once the possession of a co-sharer has become adverse as a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such a manner as it was possible to do. (see Wuntakal Yalpi Chanabasavana Gowd v. Y. Mahabaleshwarappa(')). The mere fact that a dispcssessed co-sharer comes and stays for a few days as a guest 18 not sufficient to interrupt the exclusiveness or the continuity of adverse possession so as not to extinguish the rights of the dispossessed co-sharer.\n\n(see Ammakannu Ammal v. Naravanaswami Mudaljar(')).\n\nOn this issue, the parties led considerable evidence, oral and documentary.\n\nOn examination of that evidence, both the Trial Court and the learned Single Judge gave a concurrent finding that even if the possession by the respondents was adverse the appellant and his father had done acts of possession at various intervals which were sufficient to interrupt both the continuity and the exclusiveness of possession by the respondents.\n\nThe Division Bench, however, did. not agree with the concurrent finding on a re-appraisal of the evidence by it. It is not necessary for us to go into the details of tbat evidence once again as certain facts clearly emerge out of the evidence to prevent the extinguishment of Nanhku's and the appellant's title in the property as a result of adverse possession by tbe respondents.\n\n The principal facts which impressed tbe Division Bench were lfl tbat though in Ille Demand Register of Patna Municipality for 1915-16 IEx. El Sonadhari and Baijnatb were the only\n\n Minister loses for some reason his seat in the Lei; slature of the State. We are assured that the meaning we have given to cl. (4) of Art. 164 is the correct one from the proceedings of the Constituent Assembly and the position as it obtains in England, Austrdia and South Africa.\n\nAn amendment(') was proposed in the Constituent Assembly that the following be substituted :\n\n\"A Minister shall, at the time of his being chosen as such be a member of the Legislative Assembly or Legislative Council of the States as the case may be.\" This amendment was, however, negatived.\n\nIt is interesting to note the position in England. According G to Jennings(') :\n\n\"It is a well-settled convention that these ministers should be either peers or members of the House of the Commons. There have been occasional exceptions. Mr,\n\n(I) Constituent Assembly Debates dated June I, 1949 Oftlcial Report H Vol. VIII. p. st.\n\n(2) Cabin~ Government by Jennings-third edition, page 60.\n\nSUPREME COURT RllPORTS [1971] SUPP. s.c.R.\n\nGladstone once held office out of Parliament for nine months. 'The Scottish Law officers sometimes, as in 1923 and 1924. are not in parliament, General Smuts was minister without portfolio . and a member of the War Cabinet from 1916 until 1918. Mr. Ramsay MacDonald and Mr. Malcolm MacDonald were members of the Cabinet though not in Parliament from the general eleetion of November 1935 until early in 1936.\"\n\n\"The House of Commons is, however, critical of such exceptions.\"\n\nS. 64 of the Commonwelth of Australia Constitution Act inter a/ia provides that \"after the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senetor or a member of the House ot representatives.\" Commenting on this Quick & Garran(~ state as follows :\n\n\"The appointment of a Federal Ministry will necessarily precede the election of the first Federal Parliament.\n\nThere must be a Ministry to assist and advise the Governor General in the performance of Executive Acts essential for the conduct of the first general election. The first Federal Ministry. cannot at their appointment be members of the Federal Parliament, because at the time of their appointment there is no such Parliament in existence.\n\nAfter the first general election, however, no Federal Minister is permitted to hold office for a longer peribd than three months, unless he is or becomes a senator or a member of the House of Representatives.\n\nSection 32 of the Constitution Act of South Australia (4th January, 1856) contained a similar provision, viz .. that after the first general election of the South Australian Parliament, no person should hold the offices of' Chief Secretary. Attorney-Oeneral, Treasurer, Commissioner of Crown Lands; and Immigration, or Commissioner of Public Works, for more than three calendar months, unless he should be a member of the Legislative Council or House of Assembly.\" This shows that Art. 164 (4l has an ancient lineage.\n\nSection 14< 1) of the South Africa Act, 1909 reads thus :\n\n\"The Govemor-Generaf may appoint officers not exceeding (twelve) in number to administer such departments of State of the Union as the Governor-General in\n\n(3) \"Annotated Constitution of the Australian Commonwealth\" by Quick & Garrail:, p. 711.\n\nHAR >HARAN VERMA v. T. N. SING!! (Sikri, C. J.) 5\n\nCouncil may establish; such officers shall hold office A during the pleasure of the Governor-General. They shall be members of the Executive Council and shall be the King's ministers of State for the Union. After the first general election of members of the House of Assembly, as hereinafter provide, no minister shall hold office for a longer period than three months unless he is or becomes B J member of either House of Parliament.\"\n\nHahlo and Kahn(') state thus :\n\n\"The rule of responsible government that Ministers must be Members of Parliament is ensured by the statutory requirement that they be or within three months C become members of either House.\"\n\nIn the result the appeal fails and is dismissed.\n\nThere will be no order as to costs.\n\nG.C.\n\nAppeal dismissed.\n\n(4) ;, The British Commonwealth-The Deve opment of its Laws and Coustitutic'ns\" by Hahlo & Kahn (Vol. Sp. 130). 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A. VAIDIALINGAM AND A. N. RAY, JJ.J\n\nPractice-High Court-Suo Motu lnterference with orders of low!!r courts under Crilninal Procedure Code-Propriety.\n\nCode of Criminal Procedure (Act 5 of 1898), ss. 204(3), 248 and ~53(2) -Powers of Magistrate under.\n\nA complaint was filed against the first appellant and others- -office bearers of the first appellant-under ss. 337 and 338, 1.P.C., read with s. 114, that they were rash and negligent in the matter of making seating arrangements etc., for spectators of a cricket match, with the result that the spectators became unruly and the police resorted to lathi charge and the bursting of tear gas shells, causing injuries to several persons. The Chief Presidency Magistrate examined the complainant and issued summons to the accused. Some of the office bearers challenged the order of the Chief Presidency Magistrate in a criminal. revision before the High Court and the High Court held: (a, l that the counsel appearing for the complainant conceded that no offence was made out under ss. 337 and 338 read with s. 114 l.P.C., (b) that in fact, the statements in the complaint do not make out the offences under ss. 337 and 338, and (cl that they make out only an offence under s. 336, l.P.C. and therefore the prosecution will have to be given a chance to establish that offence against the accused.\n\nWhen the Chief Presidency Magistrate started to deal further with the matter, the complainant filed an application for leave to with~ draw the complaint against 8 accused and the Magistrate discharged those accused under s. 253(2), Cr. P. C. The complainant filed another application some time later seeking permission to withdraw the complaint against the rest of the accused on the ground that • he tiled the complaint only to voice the grievances of bana fide spectators and since the matter was being inquired into by an Inquiry Commission to find out the persons respo!l:sibJe. he did not intend to proceed with his complaint. The complaint as against some of the accused was dismissed under s. 204(3 ). Cr. P. C.. on the ground that the complainant had not deposited the necessary charges for issue of summons, and as regards others, the Chief Presidency Magistrate held that he could not allow the withdrawal of the complaint as the pro ceedings under s. 338 1.P.C., were warrant proceedings. He however passed an order discharging all the remaining accused under s. 253(2), Cr. P. C., because he held that no useful purpose would be served by proceeding fur ther with the complaint as the complainant was absent and no longer serious.\n\nThereafter, a Division Bench of the High Court issued suo motu notice to the complainant and all the accused, to show cause why the order dis\n\ncharging the accused should not be set aside; and, after hearing the parties the Court set aside the orders of the Chief Presidency Magistrate on the grounds that: (a) The discharge of some of the accused under s. 204(31 on the ground that the complainant had not paid the process fee for issue of summons was not proper, since in the relevant rules framed by the High\n\nCltlCKET A5SCN. v. w. BENGAL (Vaidialingam, J.) 201\n\nCourt there was no provision for such payment; and (b) the orer .dis- A charging the remaining accused under s. 253(2), Cr. P. C. was not 1ustlfied in a warrant case.\n\nOn the question whether the order of the Hiah Court was justified.\n\nHELD: In a proper case the High Court can take action suo mvtu aaainst lhe orders passed by the subordinate courts without being mo,-ed by any party; but the interference with the orders of the Chief Presidency B Magistrate by the High Court in the present case was not justified in the circumstances of the case. [2080]\n\n(I) After the concession of the counsel for the complainant and the .categorical finding of the High Court that no offence under ss. 337 and 338\n\nl.P.C., was made out and that investigation was to be made only in respect of ao offence under s. 336 I.P.C., the Magistrate had to proceed with the trial only for the offence under s. 336 l.P.C. [206H ; 207 A] C\n\n(2) Assuming that the Chief Presidency Magistrate had still to pro- Ceed with the trial for offences under ss. 337 and 338 J.P.C .• and that the discharge under s. 204(3) Cr. P. C., was not justified. the Magistrate has :got ample jurisdiction to discharge the accused under s. 253(2), Cr. P. C., and in the present case, the Magistrate had given good reasons for discharging the accused. [2078-0]\n\n(3) On the basis that the inquiry had to proceed for an offence under D s. 336, I.P.C., the position would be that the summons case procedure would have to be followed and under s. 248, Cr. P. C., the Magistrate had ample jurisdiction to permit the complainant to withdraw the complaint, and in fact, under that section, the Magistrate should acquit the accused, once he permits the complaint to be withdrawn. [208A-C]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.\n\nE 270 of 1968.\n\nAppeal by special leave from the judgment and order dated .January 14, 17, 1968 of the Calcutta High Court in Criminal Revision No. 475 of 1967. ·\n\nC. K. Daphtary, Na/in Chandra Banerjee, D. N. Mukherjee and Mukul Gopal Mukherjee, for the appellants.\n\nF ..\n\nThe respondent did not appear.\n\nThe Judgment of the Court was delivered by\n\nVaidialingam, J.-This appeal, by special leave is, directed against the judgment and order dated 14/17 June, 1968 of the Calcutta High Court in Criminal Revision No. 475 of 1967 reversing the orders passed by the Court of the Chief Presidency Magistrate, Calcutta, discharging the accused-appellants.\n\nThe circumstances leading up to the order of the H1gh Court may be indicated : The second respondent filed a complaint on JMuary 3, 1967 before the Court of the Chief Presidency Magistrate, .Calcutta, in respect of the incident which took place on the\n\nSUPREME COURT lll!PORTS [1971] SUPP. s.c.R.\n\nsecond day (January I, 1967) of the Second Cricket Test Match between India and West Indies at the Eden Gardens. The Test Match was to be played under the control, management and supervision of the Cricket Association of Bengal, which had sold tickets of various denominations for the game.\n\nThere were tickets sold for all days of the Match and. there were arrangements made for the sale of daily tickets.\n\nThe game started as scheduled on December 31, 1966.\n\nThe play was interrupted by a number of spectators scaling over the fencing erected around the play ground and entering the cricket field; However, nothing untoward happened on that day.\n\nAccording to the prosecution, the first appellant started selling tickets announcing that arrangements had been made for the accommodation of about 60,000 spectators, while as a matter of fact nearly a lakh of spectators were admitted into the enclosure. The sitting arrangement was most inconvenient and highly unsatisfactory.\n\nThe arrangements made by the first appellant for acoommodating the persons inside the enclosure were so grossly inadequate that it tended to endanger the personal safety of the spectators. On the day in question, the complainant, who was a holder of a season ticket for Rs. 451 • went to attend the game and found all the stands jampacked. Notwithstanding this the people with tickets were being pushed into different enclosures with the result that the spectators within the enclosures started jumping over the fence and occupied the space between the lines of the field and the fencing. The police, unable to control\n\ntlie rush and confusion caused by the behaviour of the crowd, suddenly started a lathi-charge followed by the bursting of tear gas shells. which resulted in causing injuries to various persons. This infuriated the crowd, which retaliated by acts of arson.\n\nThe arrangements for going out of the enclosures were also grossly inadequate with the result that some of the spectators who wanted' to clear out quickly in panic sustained injuries. The Match had to be abandoned for the day.\n\nOn these facts the complainant alleged that the first appellant who acted most rashly and negligently in over-selling the tickets and admitting a large number of people than could be conveniently accommodated inside theground and thereby endangered human lives and the personal safety of thousands of spectators. It was further alleged that as a matter of fact the rash and negligent act of the first appellant also rmulted in hurt being caused to a number of persons, who had come to witness the Match. Apart from the Cricket As~ ciation of Bengal, which was the first accused, he made 33 persons accused in his complaint petition. Those persons were the President. the Vice-President and other office bearers and Members of the Working Committee of the Cricket Association of Bengal.\n\nThe complainant prayed for issuing summons against the 34~\n\nCRICKET~ ... w. BENGAL (Vaidialingam, I.)\n\naccused persons under ss. 337 and 338 read with s. ll4 of the Indian Penal Code and to proceed against them according to law.\n\nOn January 3, 1967 the Chief Presidency Magistrate examined the complainant and heard his counsel. As the Chief Presidency Magistrate was prima facie satisfied there was a case, he issued summons to the persons shown as accused under ss. 337 and 338 read with s. 114 of the Indian Penal Code. fixing\n\nFebruary 13. 1967 for appearance.\n\nThe complainant had also made a prayer for issue of search warrants and foc seizure of the account books and other relevant papers in the custody of the first accused appellant and search warrants were issued on January 6, 1967.\n\nSome of the office bearers of the first appellant on receipt of summons challenged befOre the High Court in Criminal Revision No. 19 of 1967 the orders of the Chief Presidency Magistrate issuing summons and search warrants.\n\nThey also prll}'ed for quashing the complaint on the ground that the allegations even if fully established will not establish an offence under s. 337 and I or s. 338 read with s. 114 or any other section of the Indian Penal Code, and that the complaint was misconceived and constitutes an abuse of the process of the Court.\n\nThe learned Single Judge stayed further proceedings before the Chief Presidency Magistrate and issued summons to the State and the complainant After hearing all parties, the learned Single Judge ultimately, by his order dated February 24, 1967, dismissed the Criminal Revision No. 19 of 196 7. There were three points to be noted in the order of the learned Judge, namely, (!) Mr. Dutt, counsel appearing for the complainant conceded before the High Court that the process issued by the Chief Presidency Magistrate under ss. 337 and 338 read with s. 114 of the Indian Penal Code is misconceived (2) the High Court has given a finding that the statements made in the petition of complaint do not constitute the essential elements to make out offences under ss. 337 and 338 1.P.C., and (3) nevertheless, prime facie it cannot be stated tht the elements of an offence under s. 336 1.P.C. are not contained in the complaint, and therefore the prosecution M'ill have to be given a chance to establish, if they can. that an offence under s. 336 I.P.C. has been committed.\n\nThough Ultimately the criminal revision was dismissed, it will be seen from the aspects mentioned above that the complainant has conceded that the allegations in the complaint will not make out an oft'l:oce under ss. 337 and 338 l.P.C.\n\nApart from this conccssion, the learned Single Judge after independently considering the avcrments in the complaint has also held that no offence under s. 337 and 338 is disclosed in the complaint and that the issue of\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nsummons in respect of those offences cannot be upheld. But tfie High Court was prepared to give an opportunity to the prose cution to establish, if they can, that an offence under s. 336 J.P.C., at any rate, has been committed by the accused. It is needless to state that the Chief Presidency Magistrate was bound to have due regard to these directions contained in the order of the High Court when the case was to be proceeded with again in his court.\n\nAfter the disposal of Criminal Revision No. 19 of 1967 by the High Court on February 24, 1967 and in consequence of the stay of proceedings being vacated, the Chief Presidency Magistrate proceeded to deal further with the complaint.\n\nOn March 2, 1967 the complainant filed an application before the Chief Presidency Magistrate for leave to withdraw the complaint against eight accused, namely, accused Nos. 8, 10, 11, 22, 26, 31, 32 and 33. The reason given by the complainant was that !he said accused persons had ceased to act as members of the Working Committee at the material time. On March 20. 1967 the Chief Presidency Magistrate discharged under s. 253(2) Cr.\n\nP.C. the eight accused as prayed for by the complainant in his application dated March 2, 1967, after accepting the reasons given therein. The accused so discharged wre Nos. '8, 10, II, 22, 26, 31, 32 and 33.\n\nOn May 31, 1967, the complainant filed another application before the Chief Presidency Magistrate seek ing permission to withdraw the complaint against the rest of the accused.\n\nIn that application he stated that he had filed the complaint to voice the grievances of the bona fide spectators, who had purchased tickets for witnessing the Cricket Test Match.\n\nHe had further mentioned that an Inquiry Commission called the \"Sen Commission\" was already inquiring into the events con- /nected with the incident that took place on January 2, 1967 in order to find out the persons responsible for the same.\n\nUnder these circumstances, the complainant stated that he does not pntend to continue the complaint instituted by him.\n\nOn June 8, 1967, the Chief Presidency Magistrate dismissed the complaint as against accused Nos. 16, 17, 18, 19, 23, 27, 30 •and 34, under s. 204(3) Cr. P.C. on the ground that the complainant had not deposited the necessary charges for issue of summons. It was noted by the Chief Presidency Magistrate that the complainant though called was absent.\n\nDealing with the application dated May 31, 1967 filed by the complainant for permission to withdraw the complaint, the Chief Presidency Magistrate has stated that he cannot accord permission to with draw the complaint as the proceedings .under s. 338 I.P .C. are warrant procedure proceedings. But the Chief Presidency Magis\n\ntrate has further stated that no useful purpose will be served by\n\nCRICKET ASSCN. v. W. BENGAL (Vaidialingam, J.)\n\nproceeding further with the complaint as the . complainant was not present and was also not serious to proceed with the complaint as is evident from his conduct in comitting several defaults.\n\nFor these reasons the Chief Presidency Magistrate passed an order discharging all the other remaining accused under s. 253(2) Cr.\n\nP.C. Therefore, it will be seen that by the two orders dated March 20, and June 8, 1967, referred to above, the Chief Presidency Magistrate discharged all the accused and terminated the proceedings initiated by the second respondent.\n\nThe news regarding the termination of these proceedings appeared in some of the Dailies in Calcutta on June 10, 1967.\n\nOn seeing the said news item, the High Court by its order dated June 13, 1967 called for the record pertaining to the case from the court of the Chief Presidency Magistrate, Calcutta.\n\nOn August 1, 1967 a Division Bench of the Calcutta High Court issued suo moto a Rule (Criminal Revision No. 475 of 1967) to the complainant and the 34 accused persons to show cause why the orders discharging the accused persons passed on March ZO, and June 8, 1967 should not be set aside.\n\nThe learned Judges after hearing all the parties, by the impugned judgment set aside the two orders of the Chief Presidency Magistrate discharging the accused. The Chief Presidency Magistrate was directed to proceed with the complaint and dispose it of according to law.\n\nBut the learned Judges directed that the proceedings need be continued only against the 14 accused, namely, Nos. 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, J 4, 15 and 26. The learned Judges have held the discharge of some of the accused under s. 204(3) Cr. P.C. on June 8, 1967 on the grQund that the complainant has not paid the process for issue of summons is not proper. According to the High Court there is no provision under the relevant rules framed by the High Court for payment of any process for issue of summons in respect of cognizable offences whether the case is instituted on a complaint or not.\n\nSimilarly the High Court held that the orders discharging, under s. 253(2) Cr. P.C. some of the accused on March 20, 1967 and the remaining accused on June 8, 1967 are also not justified as the proceeding under s. 338 I.P.C. was that of a warrant case.\n\nMr. C. K. Daphtary, learned counsel for the appellants in attacking the order of the High Court has pointed out tliat ihere was no justification for the High Court to interfere silo molo with the orders passed by the Chief Presidency Magistrate discharging the accused; in the circumstances mentioned by him.\n\nThe counsel also pointed out that the Divisi\\>n Bench has not properly appreciated and given effect to the directions given in\n\n20S\n\n216 SUPlllO! COURT llPOll'lll [1971) SUPP. s.c.R.\n\nthe jlldgment of the learned Single Judge in Criminal Revision No. 19 of 1961. After the onler of the learned Single Judge, the coonsel pointed out, that the proceedings have to be continued by the Magistrate only to inquire if an offence under s. 336 I.P.C. has been made out. In such a trial the summons case\n\nure has to be adopted and the Magistrate has got ample. jurisdiction to permit the complainant, under s. 248 Cr. P.C. to withdraw the complaint Even on the basis that the charges under ss. 337 and 338 survive and the warrant case procedure is to be adopted. Magistrate has jurisdiction under s. 253(2) to discharge the accused. Considering the matter from any point of view, the interference by the High Court is not justified.\n\nNcithec the State nor the complainant has appeared before us to support the order of the High Court We have already 1cfmed in great detail to the circumstances under which the imPQgDed order was passed as they give a cleBl and complete pktute of the whole matter. We have gone through the reasoning of the learned Judges and we are satisfied that the interferena: with the orders of the Chief Presidency Magistrate by the High Court was not justified and was not warranted in the circumstaoocs of the case.\n\n'The fundamental error committed by the Division Bench is that it has proceeded on the basis that the learned Single Judge on the fonncl' occasion in Criminal Revision No. 19 of 1967 has not held that the prosecution under ss. 337 and 338 is not made out. We have already referred to the fact that during the hearing of Criminal Revision No. 19 of 1967, Mr.\n\nDutt, learned counsel appearing for the complainant conceded that the issue of process under ss. 337 and 338 I.P .C. was misconcllived. On the other band, the Division Bench proceeds on the basis that no such concession has been made, which is erroneous as a fact.\n\nAgain e\\'m apart from the concession. the learned Single Judge afkc discussing the essential ingredients of an offence under\n\n~- 337 and 338 l.P.C. has categorically held in his order tkat\n\nthe statements made in the complaint petition do not go to make up the cssenrial ingredients for an offence under ss. 337 and\n\n338. 'The learned Single Judge has also found that it is not possible at that stage to say that no offence even under s. 336 l.P.C. has been committed.\n\nIt is on this reasoning that the learned Judge. though technically did not quash the proceedings, ga..e a dear indication that the prosecution is given a chance\n\nto establish. if they can, that the accused have committed an olfencc under s. 336 l.P.C. After the concession of the counsel for the complainant and the categorical finding of the learned Judge that no offence under ss. 337 and 338 I.P.C. is made out &nd that an investigation is to be made only in respect of an\n\nCRICKET ASSCN. v. w. BENGAL (Vaidialingam, :.) 207\n\n.offence under s. 336 I.P.C., it is idle to expect the Magistrate A to ignore these clear directions and proceed with the trial again for an offence under ss. 337 and 338 I.P.C., as if nothing had happened. That is exactly what unfortunately the Division Bench bas done. It bas ignored the concession of the counsel. It has ignored the clear finding of the learned Single Judge as also the directions given by him.\n\nIt is this serious mistake committed B by the Division Bench that has resulted in the passing of the order under attack. The legality of the orders passed by the Chief Presidency Magistrate can be considered from two points of view.\n\nAssuming that the Chief Presidency Magistrate has\n\ntill to proceed with the trial for offences under ss. 337 and 338, I.P.C. it is no doubt true that he has to follow the warrant case procedure. Even under such circumstances, the Magistrate C has got ample jurisdiction to discharge the accused under s. 253(2) P.C. Section 253 deals with the discharge of accused.\n\nSubsection (]) deals with the discharge of an accused when the Magis- :trate after taking all evidence referred to in s. 252 Cr. P.C. and ; making such examination of the accused, if any, as may be found necessary, finds that no case against the accused has been D made out, which if unrebutted, would warrant his conviction. Subsection (2) of s. 253 is to the following effect :\n\n\"253(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be E groundless.\"\n\nThis sub-section gives ample jurisdiction to the M'a)listrate to discharge an accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case.\n\nSub-section (1) under those circumstances will not F operate as a bar to the exercise of jurisdiction by the Magistrate under sub-section (2). It is under. sub-section (2) of s. 253 that the Magistrate has discharged the accused.\n\nHe has given good reasons in the order for discharging the accused.\n\nssuming that the Division Bench is right in holding that the discharge under s. 204(3) Cr P.C. is not justified, we will proceed on the basis that the said order is one of discharge under s. 253\\2).\n\nWe. have. alrady re.ferrd earlir to the. re.asons given by the complamant m his apphcat10n seekmg perm1ss1on to withdra~ the complint as. well as to the reasons given by the Magistrate for d1shar{lmg the accused. There is no controversy !hat at the mtenal time, th.e Sen Commission was inquiring mto th~ 1denhcal matter v:h1ch was the subject of the criminal complamt.\n\nUnder those circumstances, it cannot be said that\n\n208 SUPREME COURT RBPOR11l [1971] SUPP. s.c.R.\n\nthe discharge of the accused by the Magistrate is either illegal or not justified.\n\nEven on the basis that the inquiry has to proceed for an offence under s. 336 I.P.C., the position will be that the summons case procedure will have to be followed.\n\nEven then, under s. 248 Cr. P.C. the Magistrate has ample jurisdiction to )Jennit the complainant to withdraw the complaint.\n\nIn fact under s. 248 Cr. P.C. the Magistrate should acquit the accused, once he permits the complaint to be withdrawn.\n\nEven if the oraer of discharge is to be treated as passed in a case where summons case procedure is to be followed, it was within the jurisdiction of the Magistrate and hence it cannot be characterized as either illegal or not justified.\n\nWe accordingly hold that the Division Bench was not justified in interfering with the orders dated March 20, and June 8, 1967 passed by the Chief Presidency Magistrate, in the circumstances of this case. We, however, make it clear that we have no doubt that in proper cases the High Court can take action suo moto against the orders passed by the subordinate courts without being moved by any party.\n\nIn the result the appeal is allowed. The judgment and order of the High Court in Criminal Revision No. 475 of 1967 are set aside and the orders of the Chief Presidency Magistrate dated March 20, and June 8, 1967 will stand restored.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 84, "entities": [{"text": "CRICKET ASSOCIATION OF BENGAL & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "CRICKET ASSOCIATION OF BENGAL & ORS", "offset_not_found": false}}, {"text": "STATE OF WEST BENGAL & ORS", "label": "RESPONDENT", "start_char": 38, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL & ORS", "offset_not_found": false}}, {"text": "A. N. RAY, JJ", "label": "JUDGE", "start_char": 107, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "A.N. 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{"text": "I.P.C", "label": "STATUTE", "start_char": 20133, "end_char": 20138, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 336", "label": "PROVISION", "start_char": 20282, "end_char": 20288, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 20289, "end_char": 20294, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 337 and 338", "label": "PROVISION", "start_char": 20422, "end_char": 20437, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 20438, "end_char": 20443, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 337 and 338", "label": "PROVISION", "start_char": 21018, "end_char": 21033, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 21035, "end_char": 21040, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 253(2)", "label": "PROVISION", "start_char": 21218, "end_char": 21227, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Section 253", "label": "PROVISION", "start_char": 21233, "end_char": 21244, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 252", "label": "PROVISION", "start_char": 21401, "end_char": 21407, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 253", "label": "PROVISION", "start_char": 21627, "end_char": 21633, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 253", "label": "PROVISION", "start_char": 22273, "end_char": 22279, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 204(3)", "label": "PROVISION", "start_char": 22475, "end_char": 22484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 253", "label": "PROVISION", "start_char": 22586, "end_char": 22592, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 336", "label": "PROVISION", "start_char": 23222, "end_char": 23228, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 23229, "end_char": 23234, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 248", "label": "PROVISION", "start_char": 23334, "end_char": 23340, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 248", "label": "PROVISION", "start_char": 23457, "end_char": 23463, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}]} {"document_id": "1971_1_209_222_EN", "year": 1971, "text": "VEERAMACHINENI GANGADBARA RAO\n\nANDHRA BANK LTD. & ORS.\n\nMarch 25, 1971\n\n[K. S. HEGDE AND A. N. GR.OVER, JI.]\n\nIndian Registration Act, 1908, s. 17-Mortgage by deposit of title deeds-Document evidencing mortgage when must be registered-Docuntent which itself does not create contract but is only memorandum of contract already entered into need not be registered-Further evidence to prove tcrins of agreement not barred by ss. 91 & 92 Evidence Act, 1872.\n\nThe respondent Bank gave a loan to Godavari Sugars Refiners Ltd., of which defendants 1 to 3, as partners, were managing agents. Subsequently the bank filed a suit for the recovery of the loan. The appellant, a brother of defendant No. I, was impleaded as defendant No. 4 and Godavari Sugars as defendant No. S. The suit was decreed and the decree ivas upheld by the High Court. Only Def!ndant No. 4 appealed to this Court.\n\nThe decree against the appellant was passed on the basis of Exh. 1-6, o document which was signed by Defendants 1 & 4 and in which it was recorded that the title deeds Exbs. A-7 and Exh. A-8 had been deposited with the respondent bank as security for money due.\n\nAccording to the appollant the said title deeds bad been deposited by him as security for a loan given to him by the bank in his individual capacity, and that the signature of defendant no. 1 had been appended to Exh. A-6 only because he had an interest in one of the properties covered by Exhs. A-7 and A-8.\n\nHELD : If the parties intend to reduce their bargain regarding the deposit of title deeds to the form of a document the document requires registration. If on the other hand its proper construction and the surrounding ircumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain the contract to create a mortgage arises by implication of the law from the deposit itself \\\\\"ith the requisite int$ntion, and the document being merely evidential does not require registration. [220H-221A]\n\nRachpal Maharaj v. Bhagwandas Daruka & Ors .. [1950] S.C.R. 548, • l' [t9sOJ s.c.R. 548.\n\nOANGADHAllA ¥. ANDHRA BANli; (H tgdt, J,)\n\nthe other hand, its proper construction and the surrounding cir cumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document being merely evidential does not require registration.\n\nThe' law relating to the nature of a memorandum filed along with the deposit of title deeds or one filed thereafter bas come up for consideration by courts in this country as well as in England. The decisions on the subject are numerous. We have already referred to the decision of this Court in Rachpa/ Maharaj's case ('). We shall now refer to two of the decisions of the Judicial Committee. In Prthcr hand that document is considered as a mer~ memorandum evidencing the deposit of title deeds in pursuance of an earlier contract then the correctness of the recitals therein can be gone into without being inhibited by ss. 91 and 92 of the Evidence Act. Whichever view is taken the plaintiff's case must fail.\n\nOn an overall consideratioa of the evidence and the probabilities of the case, we are satisfied that Exhs. A-7 and A-8 were not deposited with the Bank to secure the debts due from defendant No. 1 to the Bank.\n\nIn the result this appeal is allowed, the decree and judgment against the appellant is set aside and the suit against him is dismissed with costs throughout o.c Appeal allowed.", "total_entities": 20, "entities": [{"text": "VEERAMACHINENI GANGADBARA RAO", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "VEERAMACHINENI GANGADBARA RAO", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 73, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "Indian Registration Act, 1908", "label": "STATUTE", "start_char": 110, "end_char": 139, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 17", "label": "PROVISION", "start_char": 141, "end_char": 146, "source": "regex", "metadata": {"linked_statute_text": "Indian Registration Act, 1908", "statute": "Indian Registration Act, 1908"}}, {"text": "ss. 91 & 92", "label": "PROVISION", "start_char": 422, "end_char": 433, "source": "regex", "metadata": {"linked_statute_text": "Indian Registration Act, 1908", "statute": "Indian Registration Act, 1908"}}, {"text": "Evidence Act, 1872", "label": "STATUTE", "start_char": 434, "end_char": 452, "source": "regex", "metadata": {}}, {"text": "L.R. 43 I.A. 123", "label": "CASE_CITATION", "start_char": 2096, "end_char": 2112, "source": "regex", "metadata": {}}, {"text": "S11", "label": "PROVISION", "start_char": 2162, "end_char": 2165, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 3152, "end_char": 3157, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 91 and 92", "label": "PROVISION", "start_char": 3709, "end_char": 3722, "source": "regex", "metadata": {"statute": null}}, {"text": "Being bound by your previous Bank Rules", "label": "STATUTE", "start_char": 16385, "end_char": 16424, "source": "regex", "metadata": {}}, {"text": "s. 663", "label": "PROVISION", "start_char": 27491, "end_char": 27497, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 29259, "end_char": 29264, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act, 1908", "label": "STATUTE", "start_char": 29272, "end_char": 29294, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 59", "label": "PROVISION", "start_char": 29599, "end_char": 29604, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 30205, "end_char": 30210, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "Indian Registration Act, 1908", "label": "STATUTE", "start_char": 30218, "end_char": 30247, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 17", "label": "PROVISION", "start_char": 33653, "end_char": 33663, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 33671, "end_char": 33687, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 91 and 92", "label": "PROVISION", "start_char": 34123, "end_char": 34136, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_20_26_EN", "year": 1971, "text": "SHEIKllUPURA TRANSPORT CO. LID.\n\nNORTHERN INDIA TRANSPORT INSURANCE CO.\n\nMarch 16, 1971\n\n(K. S. ffBG[)E AND P. JAGANMOHAN REDDY, JJ.J\n\nMotor Vehicles Act, 1939 s. llOB and s. 95(2) (b)-Principles of compensation to be granted to legal representatives of person dyinK in accident U1'der s. 1108-Maximum amount of liability of insurer und.r s. 95 (2)(b).\n\nA passenger bus belonging to the appellant met with an accident, as a result of which two persons B and N died on tho spot.\n\nTho legal representativt:s of the deceased persons applied for compensation before the tribunal appointed under the Motor Vehicles Act. Their claim was opposed by tho appellant as well as by the insurance company. The tribunal found that the accident was due to the negligence of the driver and therefore the claimants were entitled to compensation. The tribunal compued the co?/.penstion due to the legal representatives of B at Rs. 18000. Out of that sum jt determined the compensation due to the widow at Rs. 8000; the compensation duo to one of his daughters was fixed at Rs. 4000 and to the other at Rs. 6000. But as tho daughters had not made their claims during the prescribed time, the Tribunal disallowed the compensation l !ants until the appellants agreed to give .an undertaking to be bonnd by the terms of the Governor-General's Order of September 12, 1936. Their names were then mutated on 13th September, 1961, which, had to be followed by a deed of admis8ion executed by the appellants on 15th September, 1961. Sul!sequently, the appellants approached the authorities to get .their rights defined and. to have their possession regularised under r. 27 of the Rules of 1937. The request not having been grante9, the appellants, on 12th April, 1966, moved the Military Estates Officer, . Lucknow for the Slime purpose and, according to the appellants, no attention was paid to tbis request of theirs. On 15\\}\\ October, 1966 .• they sent a reminder to the Military Estates Officer, Lucknow and, in addition, requested him to supply tbem with a form prescribed by Schedule V of the Rules of 1937. It may be mentioned ,\n\nthat the lease under r. 27 was required to be executed in the form in Schedule VII and not in Schedule V. On 25th October, 1966, the Military Estates Officer wrote to the appellants to collect the form from the Cantonment Executive Officer, Kanpur Cantonment, who was the Agent of the Military Estates Officer, and to submit it, after completion, to the Military Estates Officer, Luck' now, along with a site plan. The letter contained an additional sentence that this reply sent also disposed of the earlier letter of the appellants dated 12th April, 1966.\n\nThe appellants had also, in the meantime, moved the Defence Ministry by a letter dated 27.tho August, 1966, for grant of a lease under r. 27 read with Schedule VII of the Rules of 1937, quoting an instance of one Mr. Packwood, resident of Kanpur Cantonment, in whose case a similar lease had already been issued.\n\nBy the letter dated 25th October, 1966, the Joint Secretary to the Defence Ministry informed the appellants that a lease under r. 27 and Sch. VII could not be granted ; but, if the appellants so desired, the Government were prepared to consider their case under r. 28(1) and Schedule VIII of those Rules. The appellants made a representation against this letter by a letter dated !st November, 1966 ; but, when no reply was received, they gave a notice to the Government on 28th February, 1967, to execute the lease in two months under r. 27 and Sch. VII. Again, there was no reply and, thereupon, the appellants moved a petition under Art. 226 of the Constitution In the High Court of Allahabad on 18th. March, 1967, seeking a writ of mandamus directing the Military authorities to issue a lease to them under r. 27 and Sch. VIL The petition was heard by a single Judge of the High Court and he issued a directiqn to the respondents to grant a lease as prayed.\n\nHe rejected the plea of the respondents that the case fell within Rules 16 to 26 and 28 and not under Rule 27. The respondents appealed to a Division Bench which agreed with the learned single Judge that rules 16-26 and 28 were inapplicable to the case of the appellants. 1t was, however. of the view that, though the case was covered by r. 27, that rule did not contain any mandatory provision requiring a lease to be given in all cases of old grants and that there was a discretion vested in t'ie authorities acting under that rule not to give-a lease in suitable cases. It was also held that the appellants had no right to claim such a lease under that rule. Consequently, the Division Bench set aside the direction of the single Judge and issued orders to the respondents to reconsider the request of the appellants for grant of lease under r. 27 and Sch. VII of the Rules in accordance with. law. It Is against this order that the appellants have come up to this Court by certificate under Art. 133(1)(b) of the Constitution.\n\nIn this appeal, we are concerned with only one single point relatina to the natilre of the direction contained in r. 27 of the\n\nSAHODARA DEVI .. GOVT. Of INDIA (Bha•gava, J.) 2l3\n\nRules of 1937. The concurrent decision of the single Judge and A the Division Bench, holding that rules 16-26 and 28 are inapplicable, has not been challenged in this case before us. The only point that has been canvassed is whether the appellants are entitled to a direction against the respondents to issue a lease to them under r. 27 and Sch. VII of the Rules of 1937.\n\nRule 27 of the Rules of 1937 is as follows:-\n\n\"27. Special Lease for the Regularisation of Old Gra11t3.-- NotWithstanding an)'thing contained in rules 16 to 26 the Military Officer in any case where a site is held without a regular lease, may, on application by the holder, grant, with the approval of the Central Government or such other authority as the Central Government may appoint for this purpose, a lease of the said land in the form set out In Schedule VII.\"\n\nIn this Rule, thus, the power to grant a lease for regularisation of old grants has been given to the Military Estates Officer by using the word \"may'', and the power is further subject to the approval of the Central Government or such other authonty as the Central Government may appoint for the purpose. In view of this language used, we think that ¢he High Court was quite right in holding that this rule does not envisage a mandatory direction to the Military Estates Officer to grant a lease in all cases where the question of regularisation of old grants arises.\n\nNormally, the word \"may\" is used to grant a discretion and not to indicate a mandatory direction. Had the intention been that the Military Estates Officer must grant a lease in all cases, the word used would have been \"shall\" instead of \"may\". lt is true that the word \"may\", in some context, has been interpreted as containing a mandatory direction and the authority g'iven the power has to ellercise that power unless there be special reasons.\n\nSuch a case came before this Court in Sardar Govindrao and Others v. State of Madhya Pradesh ('). That was a case 'where a rule relating to grant of money or pension was sought to be enforced. This Court held :-\n\n\"This Is an instance where, on the existence of the condition precedent, the grant of money or pension becomes obligatory on the Government notwithstanding that in s. 5(2) the Government has been given the power to pass such orders as it deems fit and in sub-s: (3) the word \"may\" is used. The word \"may\" is often read as \"shall\" or \"must\" when there is something In the nature of the thing io be done which makes it the duty of the\n\n(I) [1965] S.C.R. 678\n\nperson on whom the power is conferred to exercise the power. Section 5(2) is discretionary because it takes into account all cases which may be; brought before the Gov ernment of persons claiming to be adversely affected by the provisions of s. 3 of the Act. Many such persons may have no claims at all althqugh they may in !I general way be said to have been adversely affected by s. 3. If the power was to be discretionary in .every case there was no need to enact further than sub-s. (2). The reason why two sub-sections were enacted is not far to seek.\n\nThat Government may have to select some for considera tion under sub-s. (3) and some under s. 7 and may have to dismiss the claims of some others requires the confer\n\nment of a discretion and sub-s. (2) does no more than to give that discretion to Government and the word \"may\" in that sub-section bears its ordinary meaning. The word \"may\" in sub-s. (3) has, however, a different purport.\n\nUnder that sub-section, Government must, if it is satisfied that an institution or service mu.st be continued or that there is a descendant of a former ruling chief, grant money or pension to the institution or service or to the descendant of the former ruling chief, as the case llll!Y be. Of course, it need not make a grant if the person claiming is not a descendant of a former ruling chief or there is other reasonable ground not to grant money or pension. ]lut, except in those cases where there are good grounds for not granting the pension, Government is bound to make a grant to those who fulfil the required condition and the word \"may\" in the third sub-section though apparently discretionary has to be read as \"must\".\n\nIt may be noticed .that, in that case, the word \"may\" as used it1 the general sub-s. (2) was not held to . indicate a mandatory direc tion.\n\nFt was only in sub-s. (3), because of the special context, that the Court held that the word \"may\" was equivalent to \"shall\" or \"must\". In the case before us, rule 27 only confers a power in general on the Military Estates Officer to grant leases and, by us'ing the word \"may\", it clearly gives him discretion to grant it in suitable cases. There is further the circumstance that the exercise of the power by the Military Estates Officer has been made subject to th~ approval of the Central Govenunent. or such other authority as the Central Government may appoint for that purpose. If the power had to be exercised by the Military Estates 0fficer In all cases, its being made subject to the approval of another authority wo11ld meaningless. When a rule envisages approval of the proposed action of the Military Estates Officer, it lilso implies that his action can be disapproved. This approval or disapproval will necessarily be at the discretion of the Central\n\nSAHODAltA DEVI v. GOVT. OF INDIA (Bhargava, J.) 235\n\nGovernment or the authority appointed by it for that purpose.\n\nA The power of the Military Estates Officer being subject to such discretionary approval or disapproval of another authority cannot possibly be held to be required to be . exercd in all cases without any discretion. The Division Bench was, therefore, perfectly correct in holding that the power under r. 27 is a discretionary power, and both the Military Estates Officer as well as 8 the Central Government or the other authority appointed by it for that purpose in exercising their power have the discretion in suitable cases not to proceed under this rule. The High Court, in directing a reconsideration of the case in accordance with law, was, therefore, quite correct, so that the application of the appellants must be decided afresh, after keeping in view the principle that the power to grant a lease under rule 27 is discretionary; but C tl:.e refusal should only be in suitable cases where sufficient reasons exist for that purpose.\n\nThe appeal fails and is dismissed. In the circumstances of this case, we make no order as to costs.\n\nG. C.\n\nAppeal dismbsed.", "total_entities": 27, "entities": [{"text": "SAHODARA DEVI & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "SAHODARA DEVI & ORS", "offset_not_found": false}}, {"text": "GOVERNMENT OF INDIA & ANR", "label": "RESPONDENT", "start_char": 22, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "GOVERNMENT OF INDIA & ANR", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 71, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 82, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "V. BHARGAVA, JJ.", "label": "JUDGE", "start_char": 96, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "Cantonment Land Administration Rules, 1937", "label": "STATUTE", "start_char": 115, "end_char": 157, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 287, "end_char": 295, "source": "regex", "metadata": {"linked_statute_text": "Cantonment Land Administration Rules, 1937", "statute": "Cantonment Land Administration Rules, 1937"}}, {"text": "Cantonment Land Administration Rules, 1937", "label": "STATUTE", "start_char": 398, "end_char": 440, "source": "regex", "metadata": {}}, {"text": "Act to be passed in respect of these lands was the Cantonments Act", "label": "STATUTE", "start_char": 3181, "end_char": 3247, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Cantonments Act", "label": "STATUTE", "start_char": 3285, "end_char": 3300, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Cantonments Code, 1912", "label": "STATUTE", "start_char": 3320, "end_char": 3342, "source": "regex", "metadata": {}}, {"text": "Cantonments Act", "label": "STATUTE", "start_char": 3369, "end_char": 3384, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 280", "label": "PROVISION", "start_char": 3504, "end_char": 3515, "source": "regex", "metadata": {"linked_statute_text": "Cantonments Code, 1912", "statute": "Cantonments Code, 1912"}}, {"text": "Cantonment Land Administration Rules, 1937", "label": "STATUTE", "start_char": 3736, "end_char": 3778, "source": "regex", "metadata": {}}, {"text": "Schedule V of the Rules", "label": "STATUTE", "start_char": 5572, "end_char": 5595, "source": "regex", "metadata": {}}, {"text": "Schedule VII", "label": "PROVISION", "start_char": 5698, "end_char": 5710, "source": "regex", "metadata": {"linked_statute_text": "Schedule V of the Rules", "statute": "Schedule V of the Rules"}}, {"text": "Schedule V", "label": "PROVISION", "start_char": 5722, "end_char": 5732, "source": "regex", "metadata": {"linked_statute_text": "Schedule V of the Rules", "statute": "Schedule V of the Rules"}}, {"text": "Schedule VII of the Rules", "label": "STATUTE", "start_char": 6338, "end_char": 6363, "source": "regex", "metadata": {}}, {"text": "Schedule VIII of those Rules", "label": "STATUTE", "start_char": 6776, "end_char": 6804, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7137, "end_char": 7145, "source": "regex", "metadata": {"linked_statute_text": "Schedule VIII of those Rules", "statute": "Schedule VIII of those Rules"}}, {"text": "Art. 133(1)(b)", "label": "PROVISION", "start_char": 8459, "end_char": 8473, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule VII", "label": "PROVISION", "start_char": 9502, "end_char": 9514, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 10912, "end_char": 10919, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5(2)", "label": "PROVISION", "start_char": 11266, "end_char": 11278, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11447, "end_char": 11451, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11587, "end_char": 11591, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 11854, "end_char": 11858, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_236_243_EN", "year": 1971, "text": "STATE OF KERALA\n\nv. soum INDIA CORPORATION(P) LTD.\n\nMarch 29, 1971\n\n[S. M. SIICRI, C. J., G. K. MITTER, K. S. HEGDE, A. N. GROVER\n\nAND P. JAGANMOHAN REDDY, JJ.) Constitution of India, 1950, Arts. 271 and 218-Repea/ and re-enact ment of tax laws: if affects continuity of levy-Agreement under Art. 278 by which State agrees with Union not to impose tax-If breaks continuity of levy.\n\nThe State of Travancore and Cochin, before 26th January 1950, bad plenary powers of legislation and under the Travancore General Sales Tax Act, 1948, and the Cochin General Sales Tax Act, 1945, as amended in 1948, they levied sales-tax on works contracts. As a result of the merger of the two states into a Part B State under the Constitution. the Travancore- Cochin General Sales Tax Act, 1950, was enacted, and, after the State of Kerala came into existence in 1956, the Act was called the Kerala General Sales Tax Act, arrd its operation was extended the whole of the State.\n\nThat Act enabled the imposition of sales tax on works contracts, but, on February, 25, 1950, an agreement was entered into between the Raj Pramukh and the Union of India, under Art. 278 of the Constitution, under which. the State had no power to impose sales-tax in respect of works contracts. That agreement, was to enure for ten years.\n\nFor the period 26th January 1960 to 3bt March, 1960, the State levied sales tax on works contracts. On the question whether the levy was saved by Art. 277 of the Constitution.\n\nHELD: Under Art. 277, any taxes which, immediately before the commencement of\"the Constitution, were being lawfully levied by a State, may, notwithstanding that the taxes are mentioned in the Union list in the Constitution continue to be levied by the State until provision to the contrary is made by Parliament. The impost of sales-tax on works contracls is, under the Constitution, beyond the competence of the States but would be within that of Parliament by virtue of item 97, List I, VII Schedule and Art. 248 of the Constitution. Therefore, sales-tax on works contracts which were being lawfully levied by the States of TravanCore and Cochin before 26th January 1950, could under Art. 277, be continued to be levied.\n\nThe fact that former Acts were repealed and re-enacted would not take the case out of Art. 277, because, all that the Article requires is a continuity in the levy of taxes without any change in their character. But this essential condition of continuity in the levy for the validity of the imposition of the tax was broken in the present case, by the agreement under Art. 278.\n\nArticles 277 and 278 were engrafted in the Constitution with the object of maintaining financial stability of the new States. The agreement shows that there \\\\'as liberal financial assistance to make up for the los.s of revenue which the State was deriving from the sales-tax on works contracts.\n\nSince the agreement broke the continuity of the levy of sales-tax on werks contracts, and there was nothing in Art. 277 to resuscitate it when the agreen1ent came to an end in 1960, no sales-tax on works conti::acts was leviablo by the State after 26th January 1960. [240AB, EA; 241A; 243A F] South India Corporation (P) Ltd. v. Secretary Board of Revenue, Trivandrum, [1964] 4 S.C.R. 280, referred to.\n\nKERALA v. s. I. CORP. (Mitter, J.) .237\n\nCivil Appellate Jurisdiction : Civil Appeals Nos. 175 to 178 A of 1969.\n\nAppeals from the judgements and orders dated February 6, 1968 and September 5, 1967 of the Kerala High Court Writ Appeal.\n\nNo. 243 of 1967, T.R.C. Nos. 22 and 23 of 1966 and Original Petition No. 1046 of 1966.\n\nM. C. Chaghla and A. G. Puddissery, for the appellants (in all the appeals.)\n\nS. T. Desai A. S. Nambiar and K. R. Nambiar, for the respondent (in all the appeals). c\n\nThe Judgment of the Court was delivered by\n\nMitter, J.-All these four appeals are by certificate granted by the High Court of Kerala.\n\nThree of them arise out of a common judgement in T.R.C. Nos. 22 and 23 of 1966 and Original Petition No. 1046 of 1966. Appeal No. 175 of 1969 is from the judgment in Writ Appeal No. 243 of 1967 arising out of original Petition No. 1723 of 1965.\n\nThe respondent, a private limited company having its principal place of business at Mattancherry originally in the State of Cochin but now in the S!aite of Kerala, was assessed by th~ State tax Officer, Special Circle, Mattancherry, to sales-tax for the years\n\n1960-61 and 1961-62 on turnovers which included \"works contracts\" executed by the respondent.\n\nBefore the taxing authorities the contention raised by the respondent was that the turnover on these contracts could not be subject to sales tax. Tax Revision Cases 22 and 23 of 1966 were filed in the High Court under s. 41 of the Keralai General Sales Tax Act, 1963 to revise the decision of the Tribunal. These were heard by the High Court along with the Original Petition No. 1046 of 1966. Civil Appeal No. 175 of 1969 relates to the assessment for the year 1959-60 by which a turnover of Rs. 6,09,954.98 relating to works contracts was included.\n\nThe Tribunal upheld the levy of sa.tes tax on works contracts relating to the period 26th January 1960 to March 31. 1960 and remanded the case. The respondent thereupon filed\n\n0. P. No. 1723 of 1965.\n\nA single Judge of the High Court quashed the impugned order and this was conlinned in Writ Appeal No. 243 of 1967. The Sta.te, the Kerala Sales-tax Appellate Tribunal and the Inspecting Assistant Commissioner of Agricultural Income-tax and Sales-tax, Ernakulam have come up in appeals to this Court and the common respondent is the company.\n\nSUPRBMB COURT REPORTS\n\n(1971] SUPP. S.C.)..\n\nThe Central question in all these appeals is, whether the provisions of the General Sales Tax Act XI of Jl25 (correspon- wara Rao & Ors. v. Andhra Pradesh State Road Transport Corporation & Anr. (1959] Supp. 1 S.C.R. 319, referred 10.\n\nUNION v. s. MAzUMDAR (Grover, J.)\n\n(ii) l'his Court has on earlier occasions, observed that the practice of a single Judge deciding the case and giving a certificate under Article 132\n\n(1) for appeal to this Court, although technically correct, was an improper practice and that such a certificate should be given only in very exceptional cases where a direct appeal was necessary. The present case may be of an exceptional kind; but this Court has been deprived of the benefit of the judgment of a larger Bench of the High Court on points which are of substantial importance. [246B]\n\nR. D. Agarwala. & Anr. v. Union of India & Ors .. C.A. Nos. 2634/69 etc. dt. 23-2-1970 and Union of India v. J. P. Mitter, [1971] 3 S.C.R. 483, referred to.\n\nOVIL APPELLATE JURISDICTION: Civil Appeal No. 974 of 1968.\n\nAppeal from the judgment and order dated December 22, 1967 and January 3, 1968 of the Calcutta High Court in Civil Rule No. 3369(W) of 1966.\n\nL. M. Singhvi and S. P. Nayar, for the appellant.\n\nA. K. Dutta and K. Rajendra Chowdhary, for respondents D Nos. 1 to 3.\n\nSantosh Chatterjee and G. S. Chatterjee, for respondent No. 4\n\nThe Judgement of the Court wa.i delivered by\n\nGrover, J.-This is an appeal from a judgment of a learned single judge of the Calcutta High Court who granted a certificate under Art. 132(1) of the Constitution. It inyolves primarily the question whether the cession of a territory by India as a result of a treaty with Pakista.n would be compulsory acquisition of the property comprised in that territory by the Union of India and would, therefore, attract the provisions of Art. 31 of our Constitution.\n\nAt the outset it may be mentioned with reference to a preliminary objection which has been raised by the respondents that the judgment under appeal waii delivered by the learned single Judge in a petition under Art. 226 of the Constitution and it appears that on an oral prayer made to him he granted a certificate under Art. 132(1) even though under the Letters Patent of the High Court an a.ppeal lay to a division bench of that court.\n\nThis Court has said on an earlier occasion in clear and unequivocal terms that the practice of a single Judge deciding the case and giving a certificate under Art. 132(1) for appeal to this Court, although technically correct, was an improper practice. The right of the parties to file an appeal in the High Court itself against the decision of the single Judge should not be short-circuited. Indeed\n\nin R. D. Agarwala & Another etc. v. Union of India & Ors.(') the certificate was cancelled. In Union of India v. J. P. Mitter(') it was observed that a certificate by a single judge under Art. 132(1) should be given in very exceptional cases where a direct appeal was necessary. Even though the present case may be of an exceptional kind we have been deprived of the benefit of the judgment of a larger bench of the High Court on points which are of substantial importance. Presumably a number of matters which had no bearing on the real questions to be determined and which have been dealt with by the leacned single judge would have been either satisfactorily disposed of or would not have been the subject matter of discussion by the court, being irrelevant and unnecessary, if the decision had been given by a larger Bench.\n\nThe facts ma.y be shortly stated. On September 10, 1958, an agreement was entered into between the Government of India and Pakistan called the Inda-Pakistan Agreement. Item No. 3 of the agreement related to Berubari Union No. 12 which was a group of villages lying within the territory of India. This territory was to be so divided as to give one half area to Pakistan. The other half adjacent to India was to be retained by India. Subsequently a doubt arose whether the implementa.tion of the agreement relat ing to Berubari Union required Legislative action either by way of an Act of Parliament relatable to Art. 3 of the Constitution or by way of a suitable amendment of the Constitution in a.ccordance with the provisions of Art. 368 or both. A similar doubt had also arisen in respect of another item of the agreement which related to the exchange of certain enclaves but with which we are not concerned.\n\nThe President of India made a reference to this Court under Art. 143(1), of the Constitution for its oovisory opinion.\n\nThe opinion was deliveried on March 14, 1960. (In Re: The Berubari Union and Exchange of Enclaves Refer ence Under Article 143 (I) of the Constitution of India(').\n\nAs mentioned in the advisory opinion Berubari Union No. 12 had an area of 8·75 Sq. Miles and a• population of 10 to 12 thousand resi dents. It was situated in the district of Jalpaiguri. This Court expressed the view that since the agreement between India and Pakistan amounted to cession of a pa.rt of the territory of India in favour of Pakistan its implementation would naturally involve the alteration of the content of and the consequent amendment of Article I and of the relevant part of the First Schedule to the Constitution which could be made only under Article 368. Pursuant to the opinion delivered by this Court the Parliament enacted\n\n(I) C. As. 2634/69 & 63/70 decided on 23·2 70.\n\n\n(3) [1960] 3 S. C. R. ZSO.\n\nUNION v. s. MAZUMOAR (Grover, J.)\n\nthe Constitution (Ninth Amendment) Act 1960 on December 28,\n\n1960.\n\nIn order to implement the provisions of the above Act a physical division of the Berubari Union in accordance with the agreement and demarcation of the portion that was to go to Pakistan was necessary. Some of the inhabitants of the Berubari Union filed a petition under Article 226 of the Constitution challenging its proposed partition with the object of transferring its southern part to Pakistain.\n\nThe writ petition was dismissed and an appeal was brought to this Court which was disposed of on August\n\nII, 1965. (Ram Kislwre Sen & Others v. Umon of India & Ors.)('). It was helil that the Ninth Constitution Amendment Act had been passed by the Parliament in the manner indicated in the advisory opinion of this Court. No merit was found on the other points which were agitated.\n\nThe appeal was dismissed.\n\nOn June 11, 1965, the respondents filecl another petition under Article 226 of the Constitution before the High Court challenging the validity of the proposed demarcation principally on the ground that they would be deprived of the right of citizenship conferred by the Constitution of India and also of their property without pa.yment of compensation.\n\nD. D. Basu J. called for an affidavit in opposition and after hearing lengthy arguments delivered an elaborate judgment A.LR. 1967 Cal. 216) directing the issue of rule nisi limited to ground No. 3 of the writ petition. This ground was:\n\n\"For that no Act of the State is involved in the transfer of Berubari Union No. 12 to Pakistan a.nd as such your petitioners are entitled to compensation in terms of Art. 31(2) of the Constitution inasmuch as the operation of transfer involves deprivation of their right to property for which no provision has been made in the Constitution 9th Amendment Act, 1960.\"\n\nAccording to the allegation in the writ petition respondent Dhanoswar Roy had 2 acres 64 decima.ls of khas land in the area in q uestion.\n\nIt was also claimed that the respondents had their household property, ancestral homes and cultivated lands in the Beru bari Union No. 12.\n\nThe constitutional question formulated by the learned judge was whether compensa.tion under Article 31(2) of the Constitution was to be provided for the respondents before the demarcation in implementation of the Constitution (Ninth Amedment) Act took place.\n\nWe may mention some of the material conclusions of the learned judge out of the numerous matters dealt with by\n\n-- (I) (1966] 1 S. C. R. 430.\n\nhim. These are : (!) the treaty making power must be exercised subject to the fundamental rights guaranteed by the Constitution.\n\n(2) Once it is established that a treaty making Jaw involves a transfer which attracts Art. 31(2) it cannot be exempted from the requirements of tha.t Article on the ground that it is a treaty of \"cession\".\n\n(3) Although under the International Law the private rights of the inhabitants of the ceded territory are not instantly affected they shall have no legal right to assert against the new State under its own municipal Jaw to which such inhabitants shall be subject from the moment the cession is complete.\n\n(4) As a result of cession it would be competent for the Government of Pakistan to deal with the disputed territory as absolute owner in complete disregard of the existing rights of the respondents. \"The rights of the Government of Pakistan under its municipal law would in no way be Jess than whait would have happened if the lands were vested in that Government by a direct Act of the Government of India.\n\nSuch vesting the Government of India could arrange for only after acquiring the disputed lands''. (5) The present case will not be covered by clause 2(A) of Article 31 of the Constitution as so far all the ca6es which have been held to fall within its purview have been those in which there was exercise of the regulatory power of the State.\n\n(6) The cession of the disputed properties sought to be implemented by the impugned demarcation involved compulsory acquisition of those properties by the Union of India within the meaning of Art. 31 (2) and unless competent legislation is enacted to provide for compensaition the Union cannot announce the appointed day within the meaning of s. 2(A) of the Constitution f aold\n\nunder &ub-s. (4) is to be read with subs. (10) and it is enouah for a pawn broker to approach the Gold Control Officer with the full and detailed statements of bis holding once a month. [2690-E, G]\n\nAs such it cannot be said that there is any unreasonable restriction in 'B the said provisions on holding property or pursuing one's business in\n\nterms of Art. 19(1) (f) or (g) of the Constitution. [269H]\n\n(ii) The contention that there being no provision for notice to be given to him in case of any proceeding for confiscation the pawnec may be prejudicially affected without a hcarina being given to him bad no substance inasmuch as he will be the person presumed to be the owner in terms of s. 99 and the gold can only be seized from his possession or C custody. He can appear before the authorities and make his submissions so that no penal action should be taken against him. [270AB]\n\n(iii) There is no justification for an order of confiscation of gold under s. 71 of the Act merely because of a failure to comply with s. 16 relating to declaration. It is no doubt true that the owner is to be given a hearing in terms of s. 79 and he has a right of appeal under s. 80 but the provision D of s. 73 which allows the levy of a fine in lieu of confiscation not exceed ing twice the value of the thing in respect of which confiscation is authorised appears to be unduly harsh and unconscionable. Under the Wealth\n\ntax Act the penalty for failure to file a return is much lighter. Section\n\n71 therefore appears to place an unreasonable restriction on the right of a person to acquire hold and dispose of gold, articles or gold ornaments.\n\nIt may be applied indiscr.iminately and cannot therefore be upheld as sav\n\ned by els. (5) and (6) of Art, 19 of Constitution. [270CF] E\n\n(iv) It cannot be said that the definition section does not make a clear distinction between an 'article' and an 'ornament'. The explanation to c;.\n\n2(p) shows that nothing made of gold which resembles an ornament will be deemed to be an ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any State. Clearly it is a question of proof as to whether\n\nthe thing passes as an article or an ornament in a particular state. (270GJ\n\n(v) It cannot be said that compliance with all the conditions laid down in form G. S. III under r. 4 of the Act is impossible. No doubt there may be difficulty in some cases where an article contains metals other than gold or precious stones, but a pawn broker who is asked to advance money on the security of such an article can make a fairly accurate estimate of the weight and value of the gold therein so as to be able to judge for himself how much he can safely advance on the security of that article.\n\nHe is not called upon to give the exact purity of the gold content of the article. He can only give an estimate of its purity. [271A-C]\n\n(vi) There was no difficulty in regard to the primary gold found ill possession of the petitioner in writ petition No. 24. Under s. 2(1) no person can own or have in bis possession, custody or control, acquire or agree to acquire ownership, buy, accept or otherwise receive any primary gold except as provided in the Act and the pawn broker or money lender is not such a person. (271 F]\n\n256 . SUl1UMB .cl>UllT IiEPOl\\TS [1971] SUPP. s.c.Jl.\n\n(vii) The printed circulars to which attention was drawn did not show that there was any extension of time with regard to declaratfons under s. 16(1) beyond 28th February 1969. Reference to certain circulars addressed only to Gold Oontrol Ollicers to the offect that no steps were to be taken until after 30th April 1969 could not be availed of by the petitioner who was not in a position to assert that the circular bad been publicly advertised or that be himself bad received any copy of such circular.\n\n[272B].\n\n(viii) Section 58(1) of the Act which allows any Gold Control Officer authorised by the Administrator to enter and search any business premises if be bas reason to suspect that any provision of the Act was being or was about to be contravened could not be struck down on the ground that\n\nthe power to search was Biven without the same safeauards as in the Sea Cmtoms Act, 1882 the Customs Act, 1962 or the Code of Criminal Procedure. There may be cases where it is necessary for the Gold Oon trol Ofllcer to act with expedition in the matter of search so that the infor mation that he is going to search a premises may not leak out and the only safety in this re1ard is that the Gold Control Officer must be authorised by the Administrator in this behalf and he in his tum if ho is empowered by the Central Government may authorise other Government Ofllcers to enter and search the premises. In the present case the counter aflldavit showed that the ofllcer searching bad information regarding the contravention of the. provisions of the Act and the result of the search showed that huge quantity of 10Jd was lying with the petitioner in respect of which no declaration bad been made. The Gold Control Act is not the only provisions of law where power to search on suspicion has been. conferred on an officer. In this connection reference may be made to s. 41 of the Madras General Sales Tax Act I of 1959 which came up for consideration before this Court in the Commissioner of Commercial Taxes,\n\nBoard of Revenue, Madras v. Ramkishan Srikishan Thaver etc., C.A. Nos. 150/68 di. 9-8-1967. [2720-H]\n\n(xi) Section 16 is not excluded in the case of money lenders or pawn brokers. Any person who comes under the purview of s. 16(1) has to make a decla, ation unless there is any provision to the contrary in that Chapter.\n\nThe only provision to the contrary is contained in sub-s. (5) which permits of exemptions in respect of persons holding gold articles or ornaments up to a specified limit. The provision in s. 6(1) empowerin& the Administrator to call upon any pawn broker to furnish a return does not do away with bis obligation to file a declaration under s. 16(1). There is no question of duplication of declarations here. Every pawn broker will have to file bis declaration under s. 16(1) and be would be obliged to make a\n\nreturn only wben be is called upon to do so in terms of s. 6. If a number of pawn brokers carry en business in partnership the declaration can be made by any partner of the firm in terms of cl. (f) and if a company car ries on business of pawn broking any person in charge of tile management of the affairs of the company can make the declaration. [274AFJ\n\n(x) There was no substance in the araument that a pawn broker only kept things in bis safe custody and it would be very oppresive on him if be bad the obligation to make a declaration as often as be got in a gold article under a pledge or parted with it on redemption. A money lender. specially a pawn broker who enters into a number of transactions of pledge every day bas to maintain bis account books and be has to record faithfully therein the articles he receives by way of pledge including their weight and general description when be takes them in and making a declaration for the purpose of the Act cannot entail any hardship on s11cb a person. [274G-275C)\n\nBADRI PRASAD v. COLLECTOR (Mitter. J.) 257\n\nMohd. Hanif Quam/ii v. State of Bihar, [1959] S.C.R. 629, ~71, dist- A inguished.\n\n(xi) By the Gold Control Act Parliament only sought to control and regulate the production, manufacture etc. use and possession of and the business in gold. gold ornaments etc. ft' did not seek to disturb or annul the provisions of the Andhra Pradesh Acts dealing with pawn brokers and money lenders. The provisions of the State Acts are to have full play and effect so long as the Gold Control Act is not violated. [275E) B\n\nAccordingly, save that s. 71 of the Act is unconstitutional, the writ petition and appeals must be dismissed.\n\n[275GJ\n\nORIGINAL JURISDICTION : Writ Petition Nos. 24 and 587 of 1970.\n\nPetitions under Art. 32 of the Constitution of India for the enforcement of fundamentiW rights and Civil Appeal No. 1613 of 1970.\n\nAppeal by special leave from the judgment and order dated December 26, 1969 of the Andhra Pradesh High Court in Writ Petition No. 3047 of 1969 and Civil Appeal No. 1659 of 1970.\n\nAppeal by special leave from the judgment and order dated the December 26, 1969 of the Andhra Pradesh High Court in Writ Petition No. 3008 of 1969.\n\nWrit Petition No. 24170.\n\nC. K. Daphtary, /. B. Bajpai, P. C. Bhartari, /. B. Dadachanji, 0. C. Mathur and Rav.inder Narain, for the petitioner.\n\nJagdish Swarup, Solicitor General, M. C. Setalvad and B. D.\n\nSharma, for the respondents.\n\nWrit Petition No. 587-of 1970.\n\nC. K. Daphtary, P. C. Bhartari, Ravinder Narain and J. B.\n\nDadachanji, for the petitioners.\n\nM. C. Sefalvad, and R. N. Sachthey for the respondents.\n\nCivil Appeal No. 1613 of 1970.\n\nB. R. L. Iyengar and P. Parameshwara Rao, for the appellants.\n\nJagdish Swar\"f}, Solicitor General, I. M.\n\nMukhi and B. D.\n\nSharma, for the respondents.\n\nCivil Appeal No. 1659 of 1970.\n\nS. V. Gupte, P. Parameswara Rao and K. C. Dua, for the appellants.\n\n17-1 S.C. lndia/71\n\nSUPREME COURT REPORTS\n\n(1971) SUPP. S C.R.\n\nA Jagadish Swarup, Solicitor-Oeneral, and B. D. Sharma, for the\n\nrespondents.\n\nM. Natesan and R. Gopalakrishnan, for the interveners.\n\nThe Judgment of this Court was delivered by Mitter, J.-The petitioner in Writ Petition No. 24 of 1970, a citizen of India who has been carrying on business inter alia of money lending against pledge of gold ornaments, challenges the vires of the Gold Control Act, 1969 read with the rules made thereunder and in particular sections 6, 8 and 16(1) of the Act.\n\nThe facts on which the petition is based are as follows. The petitioner has a fairly extensive business of money lending in Etawah in U.P. In pursuit of his business he advances moneys to a large number of persons who pledge ornaments made of gold or containing gold and other precious stones, or silver.\n\nIt includes a seasonal business of agriculturists taking loans from him in the sawing season and repaying the same with interest by redeeming the pledged ornaments. According to the petition such Joans are not always redeemed quickly and there are instances of ornaments lying with him under pledge for 10 to 15 years. He also owns along with other members of his family substantial quantities of gold ornaments. As he has a strong room for keeping these valuables his friends and relations also are in the habit of keeping their gold ornaments and articles with him for safe custody. The purity of the gold content of the ornaments varies from 10-12 carats to 22-24 carats. The content of the gold is difficult to estitnate in some cases where they are pieces containing more than one metal and set with stones. In all such G:Ues a rough and ready estimate of their value is made whenever possible by the indigenous method of determining the purity on a touch stone and loans are advanced to the extent of SO to 1S per cent of the value of the pledged goods. Over the last 8 to 10 years the petitioner claims to have come into possession of such pledged ornaments and articles which have not been redeemed since their first pledge woighing 81'Proximately 42,989 grams. On an average he entertains about 25 transactions of pledge or redemption in a day and the total number of ornaments and articles pledged with him over a year varies from 15,000 to 20,000 pieces. Hlis entire belongings of gold including those of the members of his family are kept in a strong room along with the pledged goods.\n\nThe petitioner's grievance is based on a raid which took place at his place of business on March 26, 1969 by the Inspectors of Excise under the authority of the Collector of Central Excise. The raid was completed on 9th April, 1969 and a large\n\nBADlll PRASAD v. COWCTOR (Mitter, J.)\n\nnumber of ornaments and articles of gold were seized from his premises. According to the petition the condition precedent to the exercise of such power i.e. that the officer concerned should have a reasonable belief that the provisions of the Act have been\n\nviolated was non-existent and in any event the Act did not permit Inspectors of Customs or Central Excise to carry out the search or seizure. The validity of the search and seizure is also challenged on the ground that inasmuch as the time to furnish declaration under s. 16 of the Act had been extended since the commencement of the Act from time to time up to the 30th April 1969 the search which took place on March 26, 1969 was unjustified.\n\nThe different ptoVisions of the Aet and the grounds .of attack on them lll8IY be sumlilarised as foll<>WB :-\n\n(a) Sections 4, 6, 8(1), 16 read with 71, 74 and 86 are bad in law as outside the competence of Parliament and/ or in violation of the Constitution. Section 6 and 16(1) ate impugned on the ground that Patliament had no competence to encroach on the field of money lending and money lenders which is covered by a State itelil of legislation iii the Seventh Schedule.\n\n(b) .Sections 4 and 16 read with the power of search and seizure, impositions of fine and penalty and power of prosecution etc. confer arbitrary powers upon the respondents ble of in discriminate use and as. such are violative of Art. 14.\n\n(c) The expmsion \"possession\", custody and control in s 16 is vague and uncertain incapable of any objective assessment.\n\n(d) The provisions of s. 8(1) of the Act are violative of the petitioner's fundamental right to acquire, hold or dispose of property in the form of primary gold as it is not in the interest of general public. The section is also impugned as affecting the possession by the j)ctitionec of primary gold found which he has been holding for many years past. It is also attacked on the ground that thti Gold Control Officer can always treat a particular\n\npiece of ornament as primary gold, the acquisition and disposal of which was prohibited under the Act.\n\n(e) It is imposSible for anyone to comply strictly with the form GS Ill prescribed under the rules. In order to comply with the strict statutory obligations the petitioner would have to incur huge expenses for maintaining the necessary staff and undertaking scientific assessment to ascertain the purity, weight and value of\n\ngold content in each and t:YerJ ornament.\n\nSUPREME COURT REPORTS [ 1971] SUPP. s.c.Jl.\n\n(f) The obligation to furnish declarations in respect of every pledge and/ or redemption of the ornament would be incapable of compliance as on an average be enters into about 100 transactions of this character in a ~. It was also quite impracticable to comply with the provisions of s. 16(4) and (10) to furnish repeated declarations for every acquisition and/ or redemption of the B pledge of the ornaments.\n\nThe petition was affirmed on January 13, 1970 and on the 19th January this Court granted interim stay of further proceedings in pursuance of search and seizure.\n\nIn the counter affidavit of the Assistant Collector of Central Excise reliance is placed on the following facts :-\n\n1. The total quantity of gold seized in the course of the search of the petitioner's premises which started on the 26th March 1969 and ended on 9th April 1969 was 95,793.995 gms. of the approximate value of Rs. 14,47,300/-.\n\nThis included gold with foreign marking weighing 3,539.842 gms. other primary gold without marks 212.865 gms., gold coins weighing 85.53 gms. and ornaments weighing 91,9555.753 gms. Two show ca.use notices were issued one for contravention of the provisions of the Act aond the other for contravention of the provisions of the Foreign Exchange Regulations Act read with the provisions of the Customs Act and the Imports and Exports Control Act.\n\n2. The petitioner took an inordinately long time to seek legal redress : he waited from April 1969 to January 1970 before complaining of the search and seizure. The petitioner never attempted to avail himself of the opportunity of having a personal hearing before the competent authority i.e. the Collector of Central Excise, Kanpur.\n\n3. On or about March 25, 1969 on receipt of information and being satisfied that the provisions of the Act as also those of the Customs Act and the Foreign Exchange Regulations Act and Imports and Exports Control Act were being contravened, the Superintendent, Central Excise, Manipuri authorised the Inspectors of Central Excise Department to enter and search the premises of the petitioner and to seize any offending gold. gold articles or gold ornaments. The authorisation of the Inspectors was under powers conferred by s. 58(2) of the Act and s. 105 of the CUJtoms Act, 1962.\n\n4. The Income-tax Officer Etawab issued an order under s. 132(3) of the Income-tax Act, 1961 restraining the Superintendent, Central Excise, from removing, parting with or otherwise dealing\n\nllADRI PRASAD ' COUECTOR (Mitter, J.)\n\nwith the gold and gold ornaments seized by the Inspectors of\n\nCentral Excise.\n\n5. Among the things seized were 30 biscuits of gold includ ing one of foreign marking which was primary gold the possession of which by itself was a contravention of s. 8(1) of the Act Neither at the time of the seizure of the gold nor during the course of the investigation the petitioner indicated as to how many and which of the ornaments were his own and how many of them belonged to the various members of his family : no such details have been given in the. petition.\n\n6. All the allegation regarding the vires of the Act or the Rules were disputed. The dilliculty if complying with the provi 5ions of the Act was also denied and the justification for the rotention of the seized articles was ba6ed on the powers conferr~ under the different Acts.\n\nIn the counter affidavit affirmed by the Secretary to the Government in thC Ministry of Finance, Department of Revenue and lnsurace. a claim is made that the subject matter of the Act does not encroach on the power of the State Legislature to legislate with respect to money lending or money lenders.\n\nIt however contains provisions prohibiting persons from obtaining loan on the hypothecation, pledge or mort@lllge of prim81'}' gold which is a reasonable restriction on the flpldamental right of a citizen.\n\nIt is also asserted that no provision of the Act is vague or uncertain or difficult of compliance.\n\nS. 8(1) of the Act is sought to be justified on the ground that this provision had been inserted in the statute with a. view to eliminating the chances of false defonces being raised on the d.:tection of smuggled gold and a period of six months from !st March 1967 bad been allowed under the Defence of India Rules to enable persons who might have gold in their possession to dispose of it either by sale or delivery for conversion into ornaments to licensed dealer or by certified gold\n\n5miths. Stress was also laid on the legislation . on the subject by which control of gold was first made law as Part XIHAl (of the Defence of India Rules) promull!lllted under the Defence of India Act followed by the Gold Control Act, 1967, the Gold Control Ordinance, 1968 and the Gold Control Act of 1969. It was submitted that the object of this series of legislation was with a view to prevent smuggling of gold into India and of the dissemination thereof which results in the loss of Rs. 100 crores of foreign exch ange per annum. This object could not be achieved unless there was restriction on the manufacture and sale of new ornaments, declaration of holdings of gold other than ornaments, regulation of the business of gold including the activities of -gold refiners and goldsmiths. The impracticability of estimating the purity of\n\nSUPR6MI! COURT R6PORTS\n\n(1971] SUPP. S.C.R\n\ngold ornaments was also disputed on the assertion that any experienced goldsmith can easily assess the purity of gold in an ornament by rubbing it on a touch stone. A time limit of 30 days had been given from the commencement of the Defence of India (4th Amendment) Rules, 1966 to persons owing ornaments in excess of the specified limits for making declarations. The petitioner should therefore have made a. declaration of ornaments in his possession, custody or control. In writ petition filed before the present series of petitions, an undertaking had been given to this Court in those petitions that no action would be taken under s. 16(7) and 16(1) and 100 of the Act and the time for making declarations under s. 16 was extended till 28th Februacy 1969 and suitable instructions had been issued to the field staff to comply with the above. The time liniit for filing the declaration under s. 16(7) had been extended up to 30th June but it was denied that the period of making a declaration under s. 16(1) had been extended up to 30th April, 1969.\n\nBefore examining in detail the relevant provisions of the Act and the contentions founded thereon, it may be noted that this Act had been challenged by seeral writ petitions to this Court immediately after it was put on the sta.tute book in Sept~ mber 1968.\n\nThe questions which fell for consideration in that series of petitions included :\n\n(a) Whether the Act was w1thm the legislattve competence of Parliament under Entry 52 of List I and Entry 33 of List III of the Seventh Schedule, or\n\n(b) Whether it fell within the exclusive competence of the State Legislatures under Entry 27 of List II.\n\nF A large variety of propositions wa.s there advanced to declare the Act as beyond the competence of Parliament. It had been argued inter alia that section 4(4), 4(5), 5(1), 5(2) 27(2) (d), 27(6), 16(7), 32 read with 46, 88 and 100 were unreasonable and not in public interest and so were violative of Art. 190)(0 and\n\n(g) of the Constitution. Violation of Art. 14 was also urged.\n\nBeing of the view that the attack on some of the provisions was justified but the provisions which were found to be invalid not being so inextricably bound up with other parts as to render the whole Act unconstitutional, this <.:ourt held that several provt sions, namely, sections 5(2)(b), 27(2)(d) 27(6), 32, 46, 88 and I 00 were invalid. It is worthy of note that although challenge was directly made to the validity of s. 16(7) the Court did not express any opinion thereon. The said provision cannot therefore be assumed to have been struck down.\n\nBADRl PRASAD V., COLLECTOR (Miller, J.)\n\nThe matters with which we are not concerned not only include (!) Writ Petition No. 24/1970 of which details have been given above, but (2) Writ Petition No. 587 /1970 the petitioners in this petition having come before this Court on an earlier\n\noccaion and (3) two Appeals 1613 /70 and 1659 /70. The petitioners in the two petitions mentioned as well as the appellants in the appeals are all persons who carry on the business of pawn broking and money lending inter alia, on the security of gold\n\nrticles and ornaments and the common grievance of all these persons is against some of the proviSions of the Act, the appeals involving a further question as .to the impact of the Act on several State Acts dealing with money lending and money lenders and pawn broking and pawn brokers.\n\nThe impugned Act, as is shown by its preamble, is to provide for the economic and financial interests of the community, for the production, manufacture, supply, distribution, use and possession, of and business in, gold, ornaments and articles of gold and\n\nfor matters connected therewith or incidental thereto. As is well known the object of the Act is to make it difficult, if not impos D sible, for gold which is smuggled into the country from being circulated evidently with the object of checking smuggling of gold or rendering the same unprofitable and so avoiding a loss of foreign exchange to the country.\n\nAlthough there is no definition of pawn broker in s. 2 of the Act there can be no doubt that some of the provisions of the Act are designed to restrict the use of gold by way of pledge or hypothecation for securing loan.\n\nS. 2(b) of the Act defines an ''article\" as anything (other than ornament) in a finished form, made of. manufactured from or containing, gold a.nd includes\n\n~DY gold coin and broken pieces of an article, but does not includ~ primary gold.\n\nUnder s. 2(j) 'gold' means gold including its alloy (whether virgin, melted or re-melted, wrought or unwrought) in any shape or form, of purity of not less than nine carM.~ and includes primary gold, article and ornament. 'Ornament' is defined as a thing in a finished form meant for personal adorn ment or for the adornment of any idol, deity or any other object of religious worship, made of, or manufactured from gold, whe\n\nther or not set with stones or gems etc. The definition contains an Explanation whereby a thing made of gold though resembling an ornament is not to be deemed to be an ornament unless it is _ .. used as such in any pa.rt of the country. Primary gold is defined in s. 2(4) as meaning gold in any unfinished or semi-finished form including ingots. bars, billets etc. S. 2(i) defines a 'declaration' as one which is required by the Act or was required by rule 126-1 of the Defence of India Rules; 1962 or the Gold (Control) Ordinance,\n\n1'6~ to be made with regard to the ownership, possession, custody\n\nSUPREM! COURT. Rl!PORTS [1971] SUPP. s.c.R.\n\nor control of gold. Under s. 4(1) the Central Government bas to appoint an Administrator for carrying out the purposes of the Act. Sub-s. (2) gives the Central Government power to appoint Gold Control Officers for enforcing the provisions of the Act.\n\nSection 6(1) empowers the Administrator to require any person who lends money on pledge, hypothecation etc. of any article or ornament to furnish a return giving full particuhtrs of the things given by Wlllj of security and the persons who gave the security. Sub-s. (2) of this section authorises the examination of accounts of persons lending money on the security of gold articles or ornaments and declares that any gold which is not entered in the accounts or found to be in excess of the quantity shown in the accounts and it is not otherwise accounted for to the sa.tisfaction of the examining officer is to be deemed to . be in possession of such person in contravention of the provisions of the Act. Chapter Ill of the Act containing sections 8 to II deals with restrictions relating to the manufacture, acquisition. possession, sale, transfer or delivery of gold. S.ub-s. (!) of 1. 8 forbids any person from owning or having in his possession. custody or control or acquiring or agreeing to acquire the ownership, possession, custody or control or buying, accepting or otherwise receivmg or agreeing to buy, accept or otherwise receive anY primary gold save as otherwise provided in this Act. In other words, there is a complete bar to anybody having possession of primary gold.\n\nIn this connection it may be noted that there was a notificar tion under the Defence of India Rules requiring the conversion of primary gold either into cash or into ornaments within the time specified therein which had expired long before the Gold Control Act was put on the statute book. Sub-s. (4) of s. 8 Js aimed at preventing any person from delivering, selling or disposing of etc. of any article to a person who is not a licenced dealer or refiner except as provided in the Act. Sub-ss. (3) and (4) have a qualification in sub-s. (5) as regards the person accepting or transferring by way of gift or exchange gold coins not exceeding five in number. Sub-s. (6) empowers the Administrator to make exemption from the above provisions in special circumstances. Section 10 provides as follows :\n\n\"No person shall obtain from any other person any loan .or advance on the hypothecation, pledge, mortgage or charge of-\n\n(a) any primary gold, or\n\n(b) any article or ornament which is required to be included in a declaration unless such article or ornament has been so included : Provided that, in the case of an article which is not required to be included in a declaration, no transfer or\n\nBADRI PRASAD •• COLLECTOR (Mitter, J.)\n\ndelivery thereof shall be made unless such transfer or delivery has been intimated in writing to the Adminis trator.\"\n\nS. 11 contains prohibitions regllll'ding making, manufacturing etc. of primary gold articles except under authorisation by the Administrator.\n\nChapter IV deals with possession of gold by public religious institutions, disposal of gold received by way of offerings, submission of monthly accounts and responsibility of the person in charge of the mana.gement of any public religious institution in 1egard to such gold or gold ornaments. S. 16 which has no less than 13 sub-sections provides for the making of declarations for all practical purposes by every person who owns or possesses or deals with or disposes of gold subject to the exemption created in su~. (5). Under sub-s. (!) every person who owns or is in possession, custody or control of a•ny article or ornament at the .::ommencement of the Act, or acquires the ownership, possession etc. thereafter must make within 30 days from such commence\n\nment or from the acquisition, as the case may be or within such further time as the Administrator may allow a declaraition in the prescribed form as to the quantity, description and other prescribed particulars of a, ny article or ornament or both, owned, posses sed, held or control by him. Such declaration however is not required to be made by any person who has before the commencement of the Act already made a declaration in relation to the article or ornament or both. Sub-s.(2) specifies a number of .:ases from clauses (a) to (!) of persons who have to make the declarations in such cases and its opening words are as follows\n\n\"For the removal of doubts, it is hereby declared that the declaration referred to in this section 1hall be made in relation to any article, or ornament, or both ...... \" '\n\nClause (a) deals with minors and lunatics the declaration hav ing to be. made by the guardia, n or managr. Cl. (b) deals with\n\nowers of idols or deities; cl. (c) deals with properties of a person which are under the management of an administrator or receiver; clause (d) with a person whose properties are under the manage ment of the Court of Wairds; cl. (e) relates to articles or things vested in an executor or an administrator of a will or other testamentary disposition; cl. (f) deals with the case of firms; cl. (g) with the case of a Hindu undivided family; cl. (h) with the Clllle <>f a private or a. public trust; cl. (i) with the case of a company whether incorporated in or outside India: cllluse (j) with a\n\n26ll\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\ntemple, church, mosque, gurdwara or any other religious institution; cl. (kl deals with wakf property and cl. Ol deals with societies, clubs or other associations. a. (ml deals with other persons owning, possessing or holding of gold as may be prescribed for them. Sub-ss. (!) and (2) of section 16 make it quite clear that every person who owns or is in possession, custody or control of any article or ornament, no matter whether he is or is not. the owner thereof, is under a duty to make a declaration with respect to all his holdings of gold articles or ornaments. Oause\n\n(5) xempts persons holding or owning gold only within up to certain limits from making such declarations. Under cl. (3l any person who did not own, possess, hold or control any , quantity of gold in excess of the quantity specified in sub-s. (5) before the commencement of the Act but acquires after such commencement the ownership thereof whether by succession, intestate or testamentary or otherwise, must make a declaration if as a result of such acquisition the total quantity of gold which comes to be held or possessed or controlled by him exceeds the limits specified. Sub-s. (4) of the section makes it incumbent on all persons who have made declarations either under the Defence of India Rules or the Gold Control Ordinance or under sub-s. (1) to make a further declaration as often as he acquires ot paris with the ownership, possession etc. of such gold giving prescribed particulars thereof. Sub-s. (7) makes it obligatory on every licensed dealer or refiner to m!lke a declaration as therein specified. Under sub-s. (8) every . declaration required under this Section is to be made in triplicate of which one copy is to be authenticated and signed by the Gold Control Officer and to be returned to the person making the declaration and the copy so returned is to be retained by such person as evidence of the declaration made by him under this stiCtion. Under sub-s. (10) a person who acquire or parts with ownership, possession, custody or control of gold' after he has made a declaration to endorse within 30 days from the date of such acquisition or parting with of gold i11 such moo-- ner as may be prescribed on the copy of the declaration retained by him and to produce such copy within 7 days from the date of such endorsement before the Gold Control Officer who has to make necessary changes in the register referred to in sub-s. (9) a.nd also in the copy of the declaration kept in his safe custody.\n\nUnder sub-s. (11) no person shall own or have in his possession. custody or control any quantity of .gold which is required to be included in a declaration unless such gold has been included in a declaration or further declaration as the case may be.\n\nIt is to be noted however that no restriction has been placed on a pawn broker on recehring articles or ornaments of gold by way of pledge and advancing loans thereon. Chapter XII of the Act deals with entries. search. seizure and arrest for the purposes ol the Act.\n\nS. 58(1) and (2) empower any Gold Control Oflicer\n\nBADRI PRASAD v. COLLECTOR (Mitter, J.)\n\nauthorised by the Administrator to enter and search any premises, refinery etc. if he has reason to suspect that any provision of the Act ha& been or is being or is about to be contravened.\n\nS. 59 empowers any Gold Control Officer authorised in this behalf by the Administrator to .detain and search any person or thing if he has reason to suspect that any person has secreted about his person or in any other thing ainy gold in respect of which contravention of the Act is suspected or any document which in his opinion will be useful or relevant to any inquiry or proceedings in relation to the contravention of any provision of the Act S. 60 deals with the conditions under which a search is to be conducted. S. 66 gives any Gold Control Officer if he has reason to believe that in respect of any gold any provision of this Act has been or is being or is attempted to be contravened, the power to seize such gold along with the package, covering or receptacle or 11ny other goods in which any quantity of such gold has been .mixed.\n\nS. 68 contains the power of arrest in certaiin circumstances. Under s. 69 the provisions of ss. 102 and\n\n103 of the Code of Criminal Procedure relating to search and seizure are made applicable as far as possible.\n\nChapter XIII deals with confiscation and pena.Jties.\n\nS. 71 which is the opening section of the Chapter runs as follows :-\n\n\"(!) Any gold in respect of which any provision in this Act or any rule or order made thereunder has been, or is being, or is attempted to be, contravened, shall be liable to co!lfiscation.\n\n(2) Any packaige, covering or receptacle (including its other contents) in which any gold liable to confiscation under sub-section (!) is found shall also be liable to confiscation.\n\n(3) Where any gold liable to confiscation under sub- Ji' section (!) is mixed with other goods in such manner that such gold cannot be separaited from those other goods, the whole of such goods shal! be liable to confiscation.\n\n(4} Any .gold which is liable to confiscation under sub-11ection (1), shall be so liable notwithstanding any G change in its form.\"\n\nS. 72 provides for confiscation of conveyances or animals etc.\n\ny means of wltich any provision of tile A, ct is s?ugh~ to be contravened.\n\nUnder s. 73 whenever any confiscation 1s authorised by the Act, !he officer adjudging it may,, subject to such H. conditions as may be specified in the order adjudging the confiscation, give to the owner thereof an option to paiy in lieu of confiscation such fine, not exceeding twice the value of the thing\n\nSUPREME COURT REPORTS [1971) SUPP. s.c.R.\n\nin respect of which confiscation is authorised as the said ol!icer\n\nthinks fit.\n\nUnder s. 74 any person who in relation to any gold does or omits to do any act which act or omission would render such gold liable to cunfiscation under the Act or abets the doing or omission of such an act or is in charge of the conveyance or animal which is liable , to confiscation shall be liable to a penalty not exceeding five times the value of the gold or one thousand rupees whichever is more, whether or not such gold hai; been confiscated or is available for confiscation. Under s. 77 no confiscation made or penalty imposed under the Act is to prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law. Chapter XIV deals with adjudication, appeal and revision.\n\nS. 78 indicates the limits of authority of different adjudicating officers.\n\nUnder s. 79 no order of adjudication of confiscation or penalty is to be made unless the owner of the gold, conveyance or animal or other person concerned is given a notice in writing-\n\n(i) informing him of the grounds on which it is proposed to confiscate such gold, conveyance or animal or to impose a penalty; and\n\n(ii) giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscatioa or imposition of penalty mentioned therein a.nd if he so desires, of being heard in the matter.\n\nChapter XV deals with offences and their trial. S. 85 makes the carrying on of the business of a banker or money lender in contravention of the Act or any rule or order made thereunder punishable with imprisonment for 111 term which is to be not less than six months but not more than three years and also with fine.\n\nThe court however may, if satisfied, that the special circumstances of the case so require impose a sentence of imprisonment for a term which may be less tha.n six months.\n\nFailure to make a declaration under the Act without any reasonable cause or making a declaration which is either false or which the declarant knows or has re111Son to believe to be incorrect punishable with imprisonment for a term which may extend to two years and _also with fine.\n\nUnder s. 91• whoever contravenes any provisions ·.ot. the Act or any rule or order made thereunder for which no punishment is separately provided in this Chapter (Chapter XV) shall be punished with imprisonment for 111 term which may extend to three months or with fine or with both.\n\nThere are some mis cella.neous provisions in Chapter XVI. Under s. 99 any person who is in possession, custody or control of any primary guld,\n\nBADRI PRASAD v. COLLECTOR (Miller, J.) 269\n\narticle or ornament is to be presumed, unless the contrary is A proved, to be the owner thereof.\n\nMr. Daphtary, learned counsel appearing in support of Writ Petitions 24 and 287 of 1970 limited his challenge mainly to sections 6, 8 and 16 of the Act and attempted to show that com.' pliance with all the conditions in form GS III prescribed under rule 4 of the Act was almost an impossibility. The first question to be considered is, whether there is anything in the Act or the rules regarding the filling up of the form GS III which cons1ituted an unreasonable restriction on the part of a pawn broker to bold, acquire or dispose of property or carrying on his bnsiness of money lending unreasonable within the meaning of Art. 19(l)(f) and (g) of the Constitution not saved by sub-els. (5) and (6) thereof. In our view no exception can be taken to the provisions of the Act to which our attention Wll6 drawn by learned counsel for the purpose on this score. If smuggling of gold into the country is to be checked by the prevention of the commission of smuggled gold into gold articles or ornaments, there is no unreasonableness in the State calling upon all pawn brokers and persons who take pledges or hypothecation of ornaments to furnish declarations so tha.t the Administrator and the Gold Control Officer may keep an eye on the activities of such persons and, if necessary, at any point of time, ask for a return in terms of s. 6 and satisfy himself about the legality of his acts by inspecting his accounts. It would not be difficult for anybody carrying on or wanting to carry on business lawfully to insist on the pawnor producing the copy of the declaration in his possession given to him after authentication by the Gold Control Officer in terms of sub-s. (8) of s. 16 in order to sa.tisfy himself that there is no contravention of the Act.\n\nS. 16 as is seen is all-embracing and makes it obligatory on every person unless he is exempted under sub-s. (5) thereof to make a declaration of all the gold articles and ornaments in his possession, custody or control. In order tbait there may not be any uncertainty in the matter of making declarations in certain cases, the Legislature has indicated the persons on whom the burden lay. The requirement of making a declara.tion as often as a pawn broker acquires ownership, possession, custody or control of gold under sub-s. (4) is to be read with sub-s. (10) and it is enough for a pawn broker to approach the Gold Control Officer with the full and detailed statements of his holding ait the end of every month. As such it cannot be said that there is any unreasonable restriction on his holding property or pursuing his business in terms of Art. 19(1) (f) or (gl of the Constitution.\n\nSUPREME COURT l!.BPORTS [1971] SUPP. s.c.R.\n\nThe contention that there being no provision fc;>r notice to be given to bim in case of any proceedings for confiscation the pawnee may be prejudically affected without a hearing being given to him has no substance inasmuch as he will be the person presumed to be the owner in terms of s. 99 @d the gold can only be seized from his possession or custody. He can appear before the authorities and make his submissions as to why no penal action should be taken against bim. There does not however seem any justification for an. order of confiscation of gold under s. 71 of the Act merely because of a failure to comply with s. 16 relating to declaration. It is no doubt true that the owner is to be given a hearing in terms of s. 79 and he has a. right of appeal under s. 80 but the provision of s. 73 which allows the levy of a fine in lieu of confiscation not exceeding twice the value of the thing in respect of which confiscation is authorised appears to be unduly harsh.\n\nIn this connection, a. reference may be made to s. 18 of the Wealth Tax Act and the penal provisions contained therein.\n\nUnder the Wealth-tax Act the penalty in case of fa.ilure to furnish the return without reasonable cause is a sum equal to two per cent of the tax for every month during which the default continue8 but not exceeding in the aggregate to 50 per cent of the tax. - It will be noticed that the fine there is imposed only on failure to pay the tax but in care of gold in respect of whlch no declaration has been made under s. 16 or the factum of pawn of which has not been communicated in writing to the Administrator, the owner ipso facto becomes liable to pay an unconscionably high penalty.\n\nS. 71 therefore appears to place an unreasonable re~1riction on the right of a person to acquire, hold and dispose of gold articles or gold ornarnen!S. It may be applied indiscriminately and cannot therefore be upheld as saved by els. (5) and (6) of Art. 19 of the Constitution.\n\nA point was also made that the definition section does not make a clear distinction between an 'article' and an 'ornament'.\n\nThis seems to be without foundation. The explanation to s. (2)(p) shows that nothing made of gold which resembles an ornament will be deemed to be an ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any State. Clearly it .is a question of proof as to whether the thing passes as an article or an ornament in a particular Sta.le and the difference in the treatment of these two substances in certain provisions of the Act do not fall to be considered.\n\nIt was argued that compliance with all the conditions laid down in form GS III under rule 4 of the Act may be impossible\n\nBADRI PRASAD v. COLLECTOR (Mitter, J.)\n\nin a number of cases. The form contains a schedule for orna\n\nments or articles under different columns, column S being meant for estimated weight and vaAue of gold content and column 6 purity'. It was urged that where the ornament is made up not only of gold but of other metals and stones, precious or other wise, it will be impossible either to give a true estimate of the weight and value of the gold contained or the purity of the gold.\n\nNo doubt there may be some difficulty in some cases but it must be reaJised that a pawn broker who is asked to advance money on the security of such an article will make a fairly accurate estimate of. the weight and value of the gold therein so as to be able to judge for himself how much he can safely adva.nce on the security of that article. He is not called upon to give the exact purity of the gold content in the article. He can only give an estimate of its purity.\n\nThe supposed difficulty in the matter of compliance with s. 16 of the Act as regards a.cquisition or transfer of gold as and when made really does not exist. It would certainly have been onerous and an almost impossible task for any pawn broker to perform if he had to furnish daily declarations in respect of his transactions had during the day and to get the Gold Control Officer to make an endorsement on his declaration every day.\n\nHe is at liberty to get it done only once a month and surely it would not be difficult for a person who ma.intains a true and faithful account of his dealings with his borrowers to prepare a schedule of all these transactions up to a certain date and secure the endorsement of the Gold Control Officer to the alterations in the declara tion aAready authenticated by him.\n\nThere is no difficulty with regard to primary gold found in the possession of the petitioner in the Writ Petition No. 24. Under s. 8(1) no person can own or have in his possession, custody or control, acquire or agree to acquire ownership, buy, accept or otherwise receive any primary gold except as provided in the Act and the pawn broker or money lender is not such a person.\n\nThe next question to which we have to a.ddress ourselves is, whether the petitioner in W.P. No. 24 of 1970 had any lawful excuse for not making a declaration before the date of the raid on his premises. Accordingi to him he was required to file his declaration by 30th April, 1969 and the seizure of primary goW and ornaments before that date was not lawful. In this connection Mr. Daphtary drew our attention to the averments in paragraphs 12 and 16 of the petition which have been already re ferred to. This is however denied in the counter affidavit. Refe rence was made in the counter affidavit to the previous petitions and it was said that the time limit for filing the declaration of\n\n\n(1971) SUPP. s.c.K..\n\nall the ornaments held by a licensed dealer or refiner was extend ed up to 28th February 1969 and an undertaking for the purpose was given to this Court with regard to declarations under s .. 16(1) and it was only with regard to the time limit for filing of declarations by licensed dealers or refiners under s. 16(7) that there was an extension of time up to 30th June, 1969. The printed circulacs to which our attention was drawn do not show that there was any extension of time with regard to declarations under s. 16(1) beyond 28th February, 1969. Reference to a certain circular addressed only to Gold Control Officers to the effect that no steps were to be taken until after 30th April 1969 by Mr.\n\nDaphtary, cannot be availed of by the petitioner who was not in a position to assert that the circular had been publicly advertised or that he himself had received any copy of such circular.\n\nMr. Daphtary also acgued that the provision for search as contained in s. 58(1) which allowed any Gold Control Officer authorised by the Administrator to enter and search any business premises merely if he had any reason to suspect that a.ny provision of the Act was being or was about to be contravened, was contrary to law and should be struck down. He complained that it would be made a.a engine of oppression in the hands of any unscrupulous officer if he was minded to do so. He argued that there was no provision corresponding to this in the Sea Customs Act, 1882 under which an officer could only search a person if he had reason to believe and where the person about to be searched could require the officer to take him to the nea-rest magistrate or a Customs Collector. He also drew our attention to the Customs Act, 1962 which envisages search only when the proper officer has \"reason to believe\" and where searches are further subject to the provisions of the Code of Criminal Procedure with respect thereto. It is true that the usual safegua-rds under the Code of Criminal Procedure are not to be found in this Act except those contained in ss. 102 and 103 of the Code. But that by itself would not be enough to strike down the provision in s. 58.\n\nThere may be cases where it is necessary for the Gold Control Officer to act with expedition in the matter of search so that the information that he is going to search a premises may not leak out and the only safety in this regard is that the Gold Control Officer must be authorised by the Administrator in this behalf and he in his turn if he is empowered by the Central Government, may authorise other Government officers to enter and search the premises. In this caee the counter affidavit shows that the officer searching had information regarding the contravention of the provisions of the Act and the result of the search showed that huge quantity of gold was lying with the petitioner in respect of which no declaration had been made. It would not be out of\n\nBADRl PRASAD v. COLLECTOR (Mitter, J.) 273\n\nplace to mention that the Gold Control Act is not the only provi-\n\n A sion of law where power to search on suspicion has been conferred on an officer. In this connection we may refer to s. 41 of the Madras General Sales Tax Act 1 of 1959 which came up for consideration before this Court in The Commissioner of Commercial Taxes; Board of Revenue, Madras v. Ramki$han Srikishan Jhaver etc.(').\n\nIn Writ Petition No. 587/1970 filed on 4th November 1970 the challenge is made only to s. 16 of the Act which though questioned in Writ Petitions Nos. 282, 407 and 408 of 1969 had not been adjudicated upon by this Court.\n\nIn the result the contentions raised on behalf of Writ c Petitioners except with regard to section 71 cannot be accepted\n\nand the provisions of the Act impugned before us except the said section cannot be struck down.\n\nMr. Ayyangar appearing for the appellant in Civil Appeal No. 1613/1970 formulated his objections to the Act in the three following propositions :- D\n\nI. Section 16(1) of the Act was a general provision which did not apply to pawn brokers and money lenders as they were governed by Sections 6, 10 and 28.\n\n2. In any view of the matter Section 16(1) was unreasonable regarding pawn brokers.\n\n3. By reason of the Andhra Pradesh (Andhra Area) Pawn Brokers Act XXIII of 1943 and the Andhra Pradesh (Telangana Area) Money Lenders Act (V of 1949 F.) the field of legislation regarding money lending and pawn brokers so far as the State of Andhra Pradesh was concerned was completely and exclusively occupied by those Acts and inasmuch as the Gold Control Act purported to trench upon those State Acts it was beyond the legislative competence of Parliament.\n\nOn the first point learned counsel drew our attention to Section 6 (}) of the Act which has been already referred to and contended that inasmuch as Section 16(1) was a general provision while Section 6(1) was specially directed towards pawn brokers, the former provision i.e. Section 16(1) was inapplicable to pawn brokers.\n\nOur attention was also drawn to Section 28 of the Act under which no licensed dealer could unless authorised by the Administrator so to do carry on business as .a money lender or banker on the security of any article or ornament or both in the\n\n(1) Civil Appods 150 to 154/1967 c'ecided on 9th August, 1967.\n\n18-1 S.C. India 71\n\nSUPRBMB COURT REPORTS\n\n[1971) SUPP. S.C. R.\n\nsame premises in which he carried on business as a dealer.\n\nIn our view Section 16 is not excluded in the case of money lenders or pawn brokers. Any person who comes under the purview of Section 16(1) has to make a declaration unless there is any provision to the contrary in that Chapter.\n\nThe only provision to the contrary is contained in Sub-Section (5) which permits of exemptions in respect of persons holding gold articles or ornaments uo to a specified limit The provision in Section 6(1) empowering th~ Administrator to call upon any pawn broker to furnish a return does not do away with his obligation to file a declaration under Section 16(1).\n\nSection 6(1) empowers the Administrator to take action .in special cases where he thinks it necessary to call upon a money lender to make a return and under Section 6(2) he is empowered to authorise any Gold Control Officer to examine the accounts of such pawn broker .. This cannot obviate the requirements of Section 16(1).\n\nCounsel argued that there would be duplication of declaration in respect of pawn brokers if both are complied.\n\nNo such duplication or difficulty will arise.\n\nEvery pawn broker will have to file his declaration under Section 16(li and he would be obliged to make a return only when he is called upon to de so in terms of Section 6.\n\nIt was argued further that although under Section 16(2). the Legislature had expressly provided for returns being submitted with regard to various kinds of persons, pawn brokers were not included therein and so long as no order prescribing for declarations being filed by them under\n\ncl. (m) was made they were under no obligation to file declarations.\n\nThere is no substance in this contention because sub-section (2) is directed only towards removal of doubts which might be left in the cases of persons specified in Clauses (a) to (J).\n\nIn the case of pawn brokers no such difficulty or doubt arises.\n\nIf a number of pawn brokers carry on business in partnership the declaration can be made by any partner of the firm in terms of Clause (f) and if a company carries on business of pawn broking any person in charge of the management of the affairs of the company can make the declaration.\n\nThere is no substance in the second point either.\n\nIt was argued that a pawn broker only kept things in his safe custody and it would be very oppressive on him if he had the obligation to make a declaration as often as he got in a gold article under a pledge or parted with it on redemption.\n\nOur attention was drawn to a passage in Mohd Hanif Quareshi v.\n\nThe Mate of Bihar(') where dealing with the case of ban on the slaughter of cows of all ages and her progeny which included bulls, bullocks, heifers, buffaloes, male, female or calves imposing a great hardship on butchers this Court remarked that the enactment if\n\n(1) [19591 S.C.R. 629 at 671.\n\nBADRI PRASAD v. COLLECTOR (Miller, J.)\n\nvalid would compel the butchers to make fresh arrangements for the supply of animals which were permitted to be slaughtered for food and said :\n\n\"Theoretically it may not be impossible for themto do so, but in piactice it is more than likely to cause con siderable inconvenience to them and may even involve extra expenses for them ......... .\n\nThe immediate effect of the operation of these Acts is to cause a serious dislocation to the petitioners' business without any compensatory benefit.\"\n\nWe do not think thM these observations can apply to the facts of this case. A money lender, specially a pawn broker who enters into a number of transactions of pledge every day has to maintain his account books and he has to record faithfully therein the articles he receives by way of pledge including their weight and general description when he takes them in and making a declaration for the purpose of the Act cannot entail any hardship on such a person.\n\nWith regard to the last point urged by Mr. Ayyangar it is enough to say that by the Gold Control Act Parliament only sought to control and regulate the production, manufacture etc.\n\nUSe and possession of and the business in gold, gold ornaments etc. It did not seek to disturb or annul the provisions of the State Acts mentioned. The provisions of the State Acts are to have full play and effect so long as the Gold Control Act is not violated.\n\nMr. Natesan appearing for some interveners raised contentions similar to Mr. Ayya.ngar's and urged that the Act did not contemplate multiple declarations and it purported to affect only owners of gold articles or ornaments and not pawn brokers. We see no force in this contention.\n\n Save that section 71 of the Act is unconstitutional the petitioners in Writ Petitions 24 and 587 of 1970 are not entitled to the reliefs asked for and they will stand dismissed. Civil Appeals Nos. 1613170 and 1659170 challenging the vires of the Gold Control Act are also dismissed.\n\nThe parties will pay and bear their own costs.\n\nG. C.", "total_entities": 165, "entities": [{"text": "BADIU PRASAD AND ORS. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "BADRI PRASAD AND ORS. 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Act"}}, {"text": "s. 69", "label": "PROVISION", "start_char": 38495, "end_char": 38500, "source": "regex", "metadata": {"linked_statute_text": "Gold Control Officer if he has reason to believe that in respect of any gold any provision of this Act", "statute": "Gold Control Officer if he has reason to believe that in respect of any gold any provision of this Act"}}, {"text": "ss. 102 and\n\n103", "label": "PROVISION", "start_char": 38519, "end_char": 38535, "source": "regex", "metadata": {"linked_statute_text": "Gold Control Officer if he has reason to believe that in respect of any gold any provision of this Act", "statute": "Gold Control Officer if he has reason to believe that in respect of any gold any provision of this Act"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 38543, "end_char": 38569, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 71", "label": "PROVISION", "start_char": 38696, "end_char": 38701, "source": "regex", "metadata": {"linked_statute_text": "Gold Control Officer if he has reason to believe that in respect of any gold any provision of this Act", "statute": "Gold Control Officer if he has reason to believe that in respect of any gold any provision of this Act"}}, {"text": "S. 72", "label": "PROVISION", "start_char": 39501, "end_char": 39506, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73", "label": "PROVISION", "start_char": 39647, "end_char": 39652, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 40080, "end_char": 40085, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 77", "label": "PROVISION", "start_char": 40564, "end_char": 40569, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 78", "label": "PROVISION", "start_char": 40840, "end_char": 40845, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 79", "label": "PROVISION", "start_char": 40923, "end_char": 40928, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 85", "label": "PROVISION", "start_char": 41546, "end_char": 41551, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 91", "label": "PROVISION", "start_char": 42278, "end_char": 42283, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 99", "label": "PROVISION", "start_char": 42621, "end_char": 42626, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 6, 8 and 16", "label": "PROVISION", "start_char": 42963, "end_char": 42983, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(l)(f)", "label": "PROVISION", "start_char": 43468, "end_char": 43481, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 44176, "end_char": 44180, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 44519, "end_char": 44524, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 16", "label": "PROVISION", "start_char": 44598, "end_char": 44603, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 45445, "end_char": 45455, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 99", "label": "PROVISION", "start_char": 45820, "end_char": 45825, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71", "label": "PROVISION", "start_char": 46096, "end_char": 46101, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 46156, "end_char": 46161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 79", "label": "PROVISION", "start_char": 46259, "end_char": 46264, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 80", "label": "PROVISION", "start_char": 46301, "end_char": 46306, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73", "label": "PROVISION", "start_char": 46328, "end_char": 46333, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 46557, "end_char": 46562, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth-tax Act", "label": "STATUTE", "start_char": 46640, "end_char": 46654, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 16", "label": "PROVISION", "start_char": 47047, "end_char": 47052, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 71", "label": "PROVISION", "start_char": 47219, "end_char": 47224, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 47469, "end_char": 47476, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 49302, "end_char": 49307, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(1)", "label": "PROVISION", "start_char": 50181, "end_char": 50188, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(7)", "label": "PROVISION", "start_char": 51456, "end_char": 51464, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 51662, "end_char": 51670, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58(1)", "label": "PROVISION", "start_char": 52115, "end_char": 52123, "source": "regex", "metadata": {"statute": null}}, {"text": "argued that there was no provision corresponding to this in the Sea Customs Act, 1882", "label": "STATUTE", "start_char": 52528, "end_char": 52613, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "also drew our attention to the Customs Act, 1962", "label": "STATUTE", "start_char": 52826, "end_char": 52874, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 53015, "end_char": 53041, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 53112, "end_char": 53138, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 102 and 103", "label": "PROVISION", "start_char": 53197, "end_char": 53212, "source": "regex", "metadata": {"linked_statute_text": "He also drew our attention to the Customs Act, 1962", "statute": "He also drew our attention to the Customs Act, 1962"}}, {"text": "s. 58", "label": "PROVISION", "start_char": 53297, "end_char": 53302, "source": "regex", "metadata": {"linked_statute_text": "He also drew our attention to the Customs Act, 1962", "statute": "He also drew our attention to the Customs Act, 1962"}}, {"text": "s. 41", "label": "PROVISION", "start_char": 54301, "end_char": 54306, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 54596, "end_char": 54601, "source": "regex", "metadata": {"statute": null}}, {"text": "section 71", "label": "PROVISION", "start_char": 54822, "end_char": 54832, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 55103, "end_char": 55116, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 6, 10 and 28", "label": "PROVISION", "start_char": 55231, "end_char": 55252, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 55284, "end_char": 55297, "source": "regex", "metadata": {"statute": null}}, {"text": "Pawn Brokers Act", "label": "STATUTE", "start_char": 55389, "end_char": 55405, "source": "regex", "metadata": {}}, {"text": "Money Lenders Act", "label": "STATUTE", "start_char": 55460, "end_char": 55477, "source": "regex", "metadata": {}}, {"text": "Section 6", "label": "PROVISION", "start_char": 55858, "end_char": 55867, "source": "regex", "metadata": {"linked_statute_text": "Money Lenders Act", "statute": "Money Lenders Act"}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 55949, "end_char": 55962, "source": "regex", "metadata": {"linked_statute_text": "Money Lenders Act", "statute": "Money Lenders Act"}}, {"text": "Section 6(1)", "label": "PROVISION", "start_char": 55993, "end_char": 56005, "source": "regex", "metadata": {"linked_statute_text": "Money Lenders Act", "statute": "Money Lenders Act"}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 56077, "end_char": 56090, "source": "regex", "metadata": {"linked_statute_text": "Money Lenders Act", "statute": "Money Lenders Act"}}, {"text": "Section 28", "label": "PROVISION", "start_char": 56158, "end_char": 56168, "source": "regex", "metadata": {"linked_statute_text": "Money Lenders Act", "statute": "Money Lenders Act"}}, {"text": "Section 16", "label": "PROVISION", "start_char": 56572, "end_char": 56582, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 56687, "end_char": 56700, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6(1)", "label": "PROVISION", "start_char": 56984, "end_char": 56996, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 57140, "end_char": 57153, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6(1)", "label": "PROVISION", "start_char": 57156, "end_char": 57168, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6(2)", "label": "PROVISION", "start_char": 57313, "end_char": 57325, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 57467, "end_char": 57480, "source": "regex", "metadata": {"statute": null}}, {"text": "Ayyangar it is enough to say that by the Gold Control Act", "label": "STATUTE", "start_char": 60401, "end_char": 60458, "source": "regex", "metadata": {}}, {"text": "section 71", "label": "PROVISION", "start_char": 61097, "end_char": 61107, "source": "regex", "metadata": {"linked_statute_text": "Ayyangar it is enough to say that by the Gold Control Act", "statute": "Ayyangar it is enough to say that by the Gold Control Act"}}]} {"document_id": "1971_1_276_283_EN", "year": 1971, "text": "MUNI LAL\n\nDELm ADMINISTRATION\n\nMarch 30, 1971.\n\n[C. A. VAIDIALINGAM AND A. N. y. JJ.)\n\nPrevention of Corruption Act (2 of 1947), s. SA-If officer conducting investigation should take every step hinzself-Objection not taken during trial- Effect of irregularity or illegality-If conviction illegal.\n\nThe appellant was charged with the offences under s. S(2) read with s. S(l) (d) of the Prevention of Corruption Act, 1947 and s. 161, I.P.C. The investigation was conducted by the Dy. Superintendent of Police but some of the statements, reports and memoranda were written, not by the Dy.\n\nSuperintendent of Police, but by the Sub-Inspector. The appellant did not raise any objection before or during the trial that an illegality or irreau.}a rity was committed during investigation. At the stage of argument, it f'a~ contended that there was a violation of s. S(A). The appellant was con victed and the conviction was confirmed by the High Court. In appeol to this Court, on the questions: (I) whether there was violation of s. 5(A1 of the Prevention of Corruption Act, and (2) whether such violation render ed the trial and conviction of the appellant illegal,\n\nHELD: (I) The Dy. Superintendent of Police gave evidence that the entire investigation was done by him and that the statements and reports which were in the hand-writing of the Sub-Inspector were written by tho latter on his dictation and under his supervision.\n\nThe evidence in the case also :stablished that the Dy. Superintendent of Police was in com plete charge of the investigation giving necessary directions and never withdrew from the case at any stage. Though s. SA is mandatory that tho investigation should be conducted by the officer of the appropriate rank it is not necessary that every one of the steps in the investigation should be done by him in person or that he could not take the assistance of his deputies or that he was bound to go through each one of the steps imself.\n\nTherefore, there was no irregularity or illegality in the conduct of the investigation. [280F-G ; 282A-B, F-H; 283B]\n\n(2) Where no objection was raised before trial commenced regardin11 any illegality or irregularity committed durinll investigation and where the cognizance of case in fact had been taken and the case had proceeded to termination the invalidity of the preceeding investigation would not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced. [281AB, CD, G]\n\n11. N. Rishbud and lndtr Singh v. State of Delhi, [1955] 1 S.C.R. 1150 and Munna Lal v. State of Uttar Pradesh, [1964] 3 S.C.R. 88, followed.\n\nState of Madhya Pradesh v. Mubarak A.Ii, [1959] Supp. 2 S.C.R. 201, referred to.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal 23 crf 1968.\n\nAppeal by special leave from the judgment and order dated A September 18, 1967 of the Delhi High Court in Criminal Appeal No. 26-D of 1966.\n\nE. C. Agarwal, for the appellant.\n\nG. N. Dikshit and .R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nValdi•linpm, J.-This a.ppeal. by special, leave, is directed against the judgment and order dated September 18, 1967 of the\n\nDelhi High Court confirming the conviction of the appellant for offences under Sections 5(2) read with Section (5) (!) (d) of the Prevention of Corruption Act, 1947 (hereinafter to be referred as the Act) and Section 161 of the Indian Penal Code.\n\nThe High Court also confirmed the sentence of one year's rigorous imprisonment.\n\nIn addition to this the Special Judge had imposed a tine of Rs. 500; but the High Court reduced the fine to Rs. 100. This was the only modification effected by the High Court with regard to the sentence.\n\nThe case foe the prosecution was as follows : The appel lant was employed in August, 1965 as Head Constable attached to Hauz Qazi Police Station, Delhi.\n\nOne Som Nath used to park his rehri in the chowk of Hauz Qazi and sell Kulchey and Chho- /ey.\n\nSoon Nath had been plying this trade for about 8 or 10 years without payment of the necessary tax to the Municipal Corporation and without taking any licence. The appellant used to harass and threaten Som Nath that unless he paid bribe to him, l; ie will be prosecuted. In particular on August 25, 1965 the appellant demanded from Som Nath as bribe a sum of Rs. 20\n\nper mo11th for not harassing him for carrying on his business without the necessary licence.\n\nSom Nath expressed his inability to pay such a heavy amount and ultimately the appellant agreed to receive Rs. 10 per month. He promised to make the first payment on August 26, 1965 between 2 and 3 P. M. At about II A. M. on August 26, 1965, Som Nath approached Sri Harnaik Singh, Deputy Superiritendent of Police, attached to the Anti Corruption Department and reported about the demand made by the appellant and to his having ultimately agreed to pay a sum of Rs. 10 between 2 and 3 P. M. on that day.\n\nThis complaint was reduced to writing by Harnaik Singh, who has given evidence as P. W. 6.. P. W. 6, summoned two employees from the office of the Deputy Collector, Tees Hazari, Sri Navneet Lal (P. W. 2) and Harl Kishan (P. W. 3) and in their presence took froin P. W. I the currency note of Rs. I 0 and after noting the number handed .it\n\nover to P. W. I with the instruction to aive the same to the appel'. lant 011 demand. P. W. I was also informed that the police party\n\nwill be hiding nearby and that he should give a particuar signal after paying the amount to the appellant.\n\nThe police party headed by P. W. 6 together with the complainant and P. Ws. 2 and 3 proceeded near the rehri of P. W. 1.\n\nWhile P. W. 1 went to the rehri, the police party and P. Ws. 2 and 3 remained behind in hiding.\n\nAt about 2 45 P. M. the appellant came to the rehri of P. W. 1 and told him \"give my thing to me\".\n\nP. W. 1 placed the currency note on the palm of the appellant saying that he was making the payment with considerable difficulty.\n\nOn signal given by P. W. 1, the Deputy Superintendent of Police along with others immediately went to the rehri of P. W. 1 and on being told by P. W. 1 that he had paid Rs. 10/- to the appellant, the latter was asked to produce the same. P. W. 6 made a search of the appellant and recovered the currency note Ex. P. 1 from his pocket.\n\nThe number of the currency note was checked with the number already recorded and it tallied. P. Ws. 2 and 3 also witnessed the search and seizure made by P. W. 6. Accordingly the appellant was prosecuted for the offences mentioned above.\n\nThe prosecution relied mainly on the evidence of P. W. 1 Som Nath and the two persons who had witnessed the search and ; eisure P. Ws. 2 and 3 and the Deputy Superintendent of Police,\n\nP. W. 6.\n\nCertain other witnesses were also examined.\n\nThe appellant denied that he had either demanded or received any bribe from P. W. I He pleaded that the alleged recovery of the currency note from him is false and that the witnesses had been tutored to give false evidence at the instance of Ved Prakash,\n\nSub-Inpector of Police, who was his enemy. According to the appellant, he had declined to accede to the request of Ved Prakash to give false evidence against two Sub-Inspectors of Police, Phool Singh and Jeeva Singh, whom he wanted to be implicated in a case.\n\nThe appellant also examined two witnesses.\n\nD. W. I who was also having a rehri in the same chowk, had stated that the appellant had not received any bribe from P. W. 1 and that he also informed P. W. 6 about the same.\n\nI;>. W. 2 was the Secretary of the Rehri Labour Union and he has deposed to the fact that none of the members of the Union had ever complained against the appellant and that the latter had nothing to do with the prosecution of people under Section 34 of the Police Act.\n\nThe learned Special Judge accepted the evidence of P. Ws. l, 2, 3 and 6, and rejected the evidence of D. Ws. l and 2. The view of the learned Special Judge was that D. W. 1 was giving false evidence on account of business friendship and that D. W. 2 had said nothing about the incident in question.\n\nIn this view :he\n\nMUNI LAL v. DBLHI ADMN. (Valdlalingam, J.)\n\nSpecial Judge found the appellant guilty of the offences with which he was charged and sentenced him to undergo one year's rigorous imprisonment and to pay a fine of Rs. SOO.\n\nOn appeal to the High Court, the appellant pressed the objection that the investigation of the case was done in violation of the provisions of Section SA of the Act. According to the appellant, instead of P. W. 6 conducting the investigation, it was done by the Sub-Inspector Ved Prakash and, therefore, no conviction could be based on such investigation, which had been made contrary to law.\n\nThe appellant also pleaded that the evidence of P. W. 1 is that of an interested witness and that P. Ws. 2 and 3 were tools in the hands of the police and as such no reliance can be placed on the testimony of these three witnesses.\n\nHis plea was that the evidence of D. Ws. 1 and 2 should have been accepted.\n\nThe High Court has expressed the view that there is a certain amount of irregularity in the investigation of the case inasmuch as the statements, reports and memos were all written by V ed Prakash and not by the Deputy Superintendent of Police,\n\nP. W. 6.\n\nBut as there is only an irregularity and as the trial has not been vitiated, it cannot be said that the trial and other proceedings conducted against the appellant have to be set aside. The High Court agreed with the Special Judge that the evidence of P. Ws. l, 2, 3 and 6 clearly establishes the case of the prosecution and as such the appellant has been rightly found to be guilty of the offences with which he was charged.\n\nWhile confirming the conviction and the sentence of one year's rigorous imprisonment, the High Court. however, reduced the fine to Rs. 100.\n\nMr. E. C. Agarwala, learned counsel for the appellant raised two contentions: (I) the trial and conviction of the appellant are illegal inasmuch as the investigation in this case has been conducted in violation of the provisions of Section SA of the Act, and (2) the prosecution evidence should not have been accepted as the w'nole case has been engineered by the enemy of the appellant Ved Prakash, who has not appeared before the court. The second contention of Mr. Agarwala can be straightaway disposed of.\n\nBoth the Special Judge as well as the High Court have accepted as true the evidence of P. Ws. l, 2, and 3 supported as it was by the evidence of the Deputy Superintendent of Police, P. W. 6. The Evidence of D. W. 1 has been categorically rejected as false. D. W. 2 does not say anything about the incident and as such, his evidence is of no assistance to the appellant. No doubt the appellant has stated when he was examined under Section 342 Cr. P. C. that the prosecution witnesses Nos. I, 2 and 3 are under the influence and threa.t of the police and that they have been prompted by Ved\n\nPrakash due to enmity to give false evidence against him. This\n\nSUPREME COURT REPORTS [1971] supp, s.c.R.\n\nplea has not been accepted by any of the courts.\n\nWe are satis fled that the evidence adduced by the prosecution has been proprly accepted by the courts.\n\nThis leaves us the consideration of the first contention that the investigation has not been conducted in accordance with Section 5A of the Act. We must frankly admit that the observation made by the Hi, gh Court that there has been a certain amount of irre gularity in the investigation of the case has given scope for this argument.\n\nAccording to the learned counsel for the appellant the entire investigation in this case has been done not by the Deputy Superintendent of Police P. W. 6, but by the Sub-Inspector of Police V ed Prakash, who has also not appeared before the court.\n\nThe contention of the learned counsel in this regard is based upon the fact that some of the statements, reports and memos have been written not by P. W. 6 but by Ved Prakash. Mr. G. N. Dixit, learn ed counsel appearing for the Delhi Administration, has drawn our attention to the various reports, statements and memos exhibited\n\n111 the case to show that the investigation hs been done not by Ved Prakash, but by P. W. 6 and it is not violative of Sectibn SA of the Act.\n\nHe has also placed considerable reliance on the evid ence of P. W. 6 in this regard to show that the entire investigation was done by him.\n\nThere is no controversy that the case before us could not have been investigated under Section SA of the Act by any police offi cer below the rank of a Deputy Superintendent of Police.\n\nThe only question is whether the investigation has been done by Ved Prakash as alleged by the appellant or by P. W. 6 as stated on behalf of the respondent.\n\nThe contention on behalf of the appellant is that some of the statements recorded appear to be in the hand writing of Ved Pra kash and, therefore, the inference is that it is he who has con ducted the investigation.\n\nIt is true that Section SA is mandatory and not directory and an investigation conducted in violation thereof is illegal.\n\nBut as held by this Court in H. N. Rishbud and Inder Singh vs. The State of Delhi (') if cognizance in fact has been taken on a police report in breach of the mandatory provi sions relating to investigation, the results, which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. It has been further emphasised in the said decision that an illegality committed in the course of an investigation does not affect the competence and juris diction of the Court for trial.\n\nThe same propositions have been reiterated in Munna Lal vs. State of Uttar Pradesh (').\n\n(!.) (195'] l S. C.R. 1150.\n\n(2.) [1964] 3 S. C.R. 88.\n\nFrom the above propositions it follows that where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation will not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced.\n\nAssuming in favour of the appellant, that there was an irregularity in the investiga tion and that Section SA of the Act was not complied with in sub stance, the trial by the Special Judge cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of illegal investigation.\n\nThe learned counsel for the ap pellant has been .. unable to show us how there has been any mis carriage of justice in this case and how the accused has been pre judiced by any irregular investigation.\n\nAdmittedly the appellant did not raise any objection before the trial commenced regarding any illegality or irregularity committed during the stage of inves\n\nligation.\n\nOn the other hand, the trial was allowed to proceed and it came to an end.\n\nThat contention was raised only at the stage of arguments.\n\nIn this connection we may also refer to the decision in The State of Madhya Pradesh v. Mubarak Ali(').\n\nTb•re the objectioh was taken before the trial began before the Special Judge, that the invstigation has been carried on in breach of Section SA of the Act.\n\nThe matter was taken to the High Court and it directed that it in order to rectify the defects and cure the illegality in the investigation, the Special Judge should have ordered the Deputy Superin tendent of Police to carry on the investigation himself while the case remained pending in the court of the Special Judge. That order of the High Court was challenged and this Court confirmed it and declined to interfere on the ground that as the objection has been taken at the earliest stage before the trial began, the direc tion given by the High Court was justified as that will ensure a proper investigation being made and completed for the prosecution of the accused therein.\n\nTherefore the ratio of the said deci sion cannot apply and the present case will be governed by the decision in The State of Madhya Pradesh v. Mubarak A/TC). ('). But we make it clear that the above discussion has been made by us on the assumption that there has been all irregularity committed in the investigation in the case before us.\n\nBut as we will presently show in the discussion to follow there is no such irregularity or illegality in the investigation as contended on behalf of the appellant.\n\nWe .are satisfied that the investigation in this case has been conducted not by Ved Prakash, Sub-Inspector of Police, but by the competent authority, namely, the Deputy Superintendent of\n\nI. [1959] Supp. 2 S. C. R. 201\n\n2. [1955] I S.C. R. 1150.\n\nPolice, P. W. 6.\n\nIt is no doubt true that some of the statements recorded during the investigation conducted by P. W. 6 are in the hand writing of Ved Prakash.\n\nBut P. W. 6 has categorically stated in his evidence that the entire investigation was done by him and that any statements or reports which are in the hand writing of Ved Prakash were written by the latter on his dictation and under his supervision.\n\nThat P. W. 6 is the officer who conducted the investigation is also borne out by the various documentary evidence produced in the case. Ex. PA has been given by P. W. I to P. W. 6 and it bears the signature of the latter.\n\nThe endore ment Ex. P. /\\.. 1 also bears the signature of P. W. 6. It is clearly stated therein that on receipt of the complaint Ex. PA from P. W. !., the Deputy Superintendent of Police sent for P. Ws. 2 and 3, two employees from the office of the Deputy Commissioner to appraise them about the nature of the complaint given by P. W. l and also making them witnesses for receiving the ten rupee currency note as well as handing over the same to P. W. 1 to be given as bribe to the appellant. The detailed instructions are given by P. W. 6 in the endorsement and to the said two witnesses. There is a further endorsement that he as Deputy Superintendent of Police has arranged a raiding party consisting of himself and the persons mentioned therein ancl that they are leaving for conducting the raid along with the complainant.\n\nThere is also a further endorsement Ex. PA/2 by P. W. 6 giving in detail the actual incident relating to the search and seizure of ten rupee currency note from the appellant.\n\nAll these are done by P. W. 6 and after the seizure and search, P. W. 6 sends the necessary report to the concerned police station for registering the case.\n\nThe actual seizure memo is also prepared and signed by P. W. 6.\n\nThe various articles seized from the appellant are also written out in the memo prepared and signed by P. W. 6.\n\nTherefore, all the above facts clearly establish that the investigation was conducted by P W. 6.\n\nDeputy Superintendent of Police, as required by Jaw and there has been no violation of Section SA of the Act.\n\nThe High Court found irregularity in the investigation on the basis, as pointed out earlier, that some of the statements are in the hand writing of V ed Prakash.\n\nWe are of the view that Chi& was a wrong approach made by the High Court. It is clear from the evidence that P. W. 6 was in complete charge and control of the investigation and he has never withdrawn from the same at any stage.\n\nHe was the officer who was controlling and giving necessary directions in the course of investigation.\n\nThough it is clearly implicit in section SA that the investigation should be conducted by the officer of the appropriate rank, we do not think it is absolutely necessary that every one of the steps in the investigation bas to be done by him in person or that he cannot take the assistance of his deputies or that he is bound to go through each and\n\nMUNI LAL v. DELI'!! ADMN. (Vaidialingam, J.)\n\neveryone of the steps in the investigation in every case.\n\nThe above proposition also has been laid down by this Court in H. N.\n\nRishbud and Inder Singh vs. The State of Bihar ('). We are referring to the above aspect to empha.sise that the mere fact that some of the statements have been written by Ved Prakash to the dictation of P. W. 6 will not make the investigation as one not conducted by P. W. 6.\n\nTherefore, under the circumstances, we are not inclined to agree with the view of the High Court that there has been any irregularity or illegality in the conduct of the investigation.\n\nWe however agree with fhe conclusions arrived at by the High Court holding the appellant guilty of the offence as well as the sentence imposed on him.\n\nIn the result the appeal fails and is dismissed.\n\nThe appellant will surrender his bail.\n\nV.P.S.\n\n(1) [1955] l S. C.R. 1150.", "total_entities": 23, "entities": [{"text": "LAL\n\nDELm ADMINISTRATION", "label": "RESPONDENT", "start_char": 5, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "DELHI ADMINISTRATION", "offset_not_found": false}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 87, "end_char": 115, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 385, "end_char": 419, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 161", "label": "PROVISION", "start_char": 424, "end_char": 430, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Corruption Act, 1947", "statute": "the Prevention of Corruption Act, 1947"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 432, "end_char": 437, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 1038, "end_char": 1066, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1955] 1 S.C.R. 1150", "label": "CASE_CITATION", "start_char": 2536, "end_char": 2556, "source": "regex", "metadata": {}}, {"text": "[1964] 3 S.C.R. 88", "label": "CASE_CITATION", "start_char": 2598, "end_char": 2616, "source": "regex", "metadata": {}}, {"text": "Sections 5(2)", "label": "PROVISION", "start_char": 3255, "end_char": 3268, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 3306, "end_char": 3340, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 161", "label": "PROVISION", "start_char": 3385, "end_char": 3396, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Corruption Act, 1947", "statute": "the Prevention of Corruption Act, 1947"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3404, "end_char": 3421, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 34", "label": "PROVISION", "start_char": 7749, "end_char": 7759, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 7767, "end_char": 7777, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section SA of the Act", "label": "STATUTE", "start_char": 8461, "end_char": 8482, "source": "regex", "metadata": {}}, {"text": "Section SA of the Act", "label": "STATUTE", "start_char": 10078, "end_char": 10099, "source": "regex", "metadata": {}}, {"text": "Section 342", "label": "PROVISION", "start_char": 10788, "end_char": 10799, "source": "regex", "metadata": {"linked_statute_text": "Section SA of the Act", "statute": "Section SA of the Act"}}, {"text": "Section 5A", "label": "PROVISION", "start_char": 11332, "end_char": 11342, "source": "regex", "metadata": {"statute": null}}, {"text": "Sectibn SA of the Act", "label": "STATUTE", "start_char": 12244, "end_char": 12265, "source": "regex", "metadata": {}}, {"text": "[1964] 3 S. C.R. 88", "label": "CASE_CITATION", "start_char": 13762, "end_char": 13781, "source": "regex", "metadata": {}}, {"text": "Section SA of the Act", "label": "STATUTE", "start_char": 14188, "end_char": 14209, "source": "regex", "metadata": {}}, {"text": "Section SA of the Act", "label": "STATUTE", "start_char": 15154, "end_char": 15175, "source": "regex", "metadata": {}}, {"text": "Jaw and there has been no violation of Section SA of the Act", "label": "STATUTE", "start_char": 18735, "end_char": 18795, "source": "regex", "metadata": {}}]} {"document_id": "1971_1_27_34_EN", "year": 1971, "text": "KRISHNA BIHARILAL v.\n\nGULABCHAND AND ORS.\n\nMarch 16, 1971\n\n[K. S. HEGDB AND P. JAGANMOHAN REDDY, JJ.]\n\nHindu Law-Widow entitled to life estate-Entering into compro1nise with reversioners giving up rights over portion of property in return for recognition of her absolute ownership of patt of property-Revt!rsioners are estopped from challenging alienations by widow of properties recognised as absolutely hers in compromise-'Malik Mustakal' means absolute estate-Document must be read to give efJect to plain and natural meaning to words employed-Plea of .stoppel when may be considered though not specifically raised in pleadings.\n\nB filed a suit for the possession of ancestral property against the descendants of his father's brother and &ister. D.uring the pendency of the suit B died and bis widow P was impleaded as his legal representative.\n\nSome of the defendants also died; those who left legal representatives were substituted by them. On June 7. 1941 the parties to the suit compromised their disputes. Before compromisin& the suit the parties had obtained the leave of the court as the minor defendants had joined the compromise.\n\nUnder the compromise a portion of the suit properties was aiven to P and the remaining portion to the defendants in that suit. P alienated the properties given to her under three different sale deeds.\n\nThe appellant was the alienee under all these sale deeds. The alienations were challenged by the defendants in the earlier suit and their descendants in three suits wherein declarations were sought that the aforesaid alienations by P were not valid and binding on the plaintiffs who were the _presumptive reversioners to the estate of B. During the pendency of the -Suits P died and thereafter the suits were contested only by the appellant as the alience. The trial court dismissed two of the suits holding that in view of the compromise in the earlier suit the parties were cstopped from challenging the validity of the sale deeds as under that compromise the estate given to P wa-s an absolute one. After various stages of litigation the Division Bench of the High Court held that the compromise of 1941 was illegal and as such could not be used to non-suit the plain.tiffs. It also, held that the compro111ise did not ameunt to a family arrangement.\n\nHELD : (i) The ordinary rule of construction of a document is to give effect to the normal and natural meaning of the words employed in the document. The compromise deed specifically said that the properties given to P were to be enjoyed by her as 'Malik Mustakal'. These words have been interpreted to mean an absolute estate. The circumstances in which the compromise was entered into as welt as the languaae used in the deed did not in any manner go to indicate that the estate given to P was anything other than an absolute estate. [31E-F]\n\nDhyan Singh and Anr. v. /uga/ Kislwre & Anr .• (1952] S.C.R. 478 and Bishunath Prasad Singh v. Chandika Prasad Kumar, 60 I.A. 56, relied on.\n\n(ii) In holding that the compromise in question was illegal the Division Bench overlooked the fact that this was not a compromise entered into fWith third parties. It was a compromise entered into with presumptive revefsioners. Further, since at no stage had the plaintiffs pleaded that the compromise was illegal. the High Court was not justified in going into the validity of the compromise. [31H-32B]\n\n(iii) Even if the compromise was illegal the parties to the compro1nisewere cstopped from challenging the impugned alienation.\n\nIt is well settled that a Hindu widow cannot enlarge her estate by entering into a compromise with third parties to the prejudice of the ultimate reversioners.\n\nBut the same will not be true if the compromise is entered into with persons who ultimately become the reversioners. P was entitled to enjoy the entire properties included in the earlier suit during her life time; but under the compromise a fraction of those properties was given to her absolutely. She gave up her rights in a substantial portion of the properties on the representation of the defendants that she could take a portion of the suit properties absolutely. This was a representation of fact and not law.\n\n[32B-33AJ\n\nT.V.R. Subbu Chetty's Family Charities v. M. Raghava Mudily<1r and ors., [1961] 3 S.C.R. 624, relied on.\n\nWhen the nearest presumptive reversioners who were parties to the compromise were estopped from challenging it, they could not advance their case by impleadin& their sons who could only claim throuah then1. as co-plaintiffs. [33E-F]\n\nThe issue whether tho plaintiffs I & 2 were bound by the term• of the compromise was broad enough to cover the defendant's plea of estoppel even though it was not specifically raised in the pleadinas but considererl by all the courts. [34A]\n\n(iv) The nearest reversioners who were parties to the compromise were the grand-children of B's aunt. The parties to the earlier suit were near relations.\n\nThe dispute was in respect of property originally owned by their common ancestar. To consider a settlement as a family arrangement it is not necessary that the parties to the compromise should all belong to one family.\n\nThe courts lean trongly in favour of family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all. [34B-EJ\n\n\n{The suits being held to be not maintainable the Court did 11ot consider the question whether the impugned alinations were effected for valid necessity.]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 74 and 75 of 1967.\n\nAppeals by special leave from the judgment and decree dated May 3, 1966 of the Madhya Pradesh.High Court in LP.A .. Nos. 3 and 4 of 1964.\n\nS. V. Gupte, Rameshwar Nath, Ra; endar Nath and Manik Chand Jain, for the appellants (in both the appeals).\n\nS. T. Desai, Motila/ Gupta, B. M. Agarwal, P. N. Tiwari. J.B.\n\nDadachanji. O. C. Mathur and Ravinder Narain, for the respon- '\n\ndents (in both the appeals).\n\nI l\n\nKRISllNA BIHARILAL v. GULABCllAND (Hegde, J.)\n\nThe Judgment of the Court was delivered by\n\nHegde J.-In these appeals by special leave identical questions of fact and law arise for decision. It would be convenient to set out the material facts before formulating the questions arising for decision.\n\nIn the State of Gwalior there was a firm known as Chhedilal Chaturbhuj.\n\nChhedilal, the owner of the firm had two sons and one daughter.\n\nThe genealogy of the family of Chhedilal is as follows :\n\nChhedilal\n\nBaldv rasad I Chhaturbhuj I Parvati (daughter) married to Manorthilal I I Bulak chand I I Jwalaprasad I I Rajabe11 Mst. Pat1obai\n\nSu ta (daughler)\n\nI Kanialal I\n\n(widow) died in 19~3.\n\nI . l Kamtma alias Kannimal\n\nI Hirabl@\n\nHariji\n\nI Raggamal\n\nI .\n\nGaneshtlal\n\nI Pannalal\n\nI Lakshmichand Sarswatibai (widow)\n\nBalklishan Krisanlal Phoolhand Poonmchand j\n\n(minor) (Res. 7) (Res. 9) (Res. 8) ____ ~.------------- 1 I I I Gulabchand Jagdish Chandra.\n\nMahavir Karola @Rambabu (Res. 2) (minor) (daughter) (Res. I) IRes. 3) Minor, Res. 4\n\nAfter the death of Chhedilal, it appears the firm in question came into the possession of some of the children of Parvati. In\n\n1926. Bulakichand, grandson of Chhedilal filed a suit against J wala prasad (his first cousin), Karnimal, Raggamal and Pannalal seeking possession of the firm. Therein he appears to have alleged that Jwalaprasad who had a half share in the suit properties had been colluding with the other defendants. Bulakichand died during the pendency of the suit. Thereafter his widow Pattobai was impleaded as his legal representative. During the pendency of the suit Jwalaprasad, Karnimal, R3ggamal and Pannalal also died. Neither Jwalaprasad nor Karnimal left a.ny successors .. Raggamal was succeeded by his son Ganeshilal a.nd\n\nPannalal by his son Lakshmichand.\n\nThey were duly impleaded in the suit. On June 7, 1941, the parties to the suit compromised their disputes. It may be noted that to tha.t compromise the minor\n\nons of Lakshmichand as well as of Ganeshilal were also parties.\n\nSUPll!lME COURT REPORTS [1971] SUPP. s.c.R.\n\nBefore compromising the suit the parties had obtained the leave of the court as the minor defendM1ts had joined the compromise.\n\nUnder the compromise, a portion of the suit properties was given to Pattobai and the remaining portion to the defendants in that suit.\n\nPattobai alienated the properties given to her under, three different sale deeds i.e. one on July 15, 1941 and the other two on July 24.\n\n1941. The first sal.e deed was for a sum of Rs. 1,000/- and the other two for Rs. 9,000/- and Rs. 20,500/- respectively. The appellant is the alienee under all these sale deeds. In 1953, Lakshmichand and his sons and Ganeshilal and his sons instituted three suits seeking declarations tha.t the alienations referred to above are not valid arid binding al!lllinst them, the presumptive reversioners to the estate of Bulakichand. One of those suits is still pending trial. These appeals arise from the other two suits. During the pendency of those suits Pattobai died. Therea.fter the suits were contested only by the appellallt, the alienee !he will be hereinafter referred to as the defendant). The trial court dismissed the two suits holding that in view of the compromise in the earlier suit, the parties are estopped from challenging the validity of the sale deeds as under that compromise the estate given to Pattobai is an absolute one. In appeal the first appellate court confirmed the _judgment of the trial court on the ground that as the pla.intiffs\n\nhad not amended the plaint seeking possession of the suit properties after the death of Pattobai. the suits were not maintainable.\n\nOn further appeals being taken by the plaintiffs, the .High Court set aside the first appellate court's judgment. It came to the conclusion that the first appellate court should have taken into consideration the change in the circumstances that had taken place pending the trial of the suits and moulded the relief aiccording to law. It, accordingly remanded the cases to the first appellate court for disposal of the same on merits. After remand the first appellate coill't again affirmed the decision of the trial court on two grounds viz. (!) that the plaiirtiffs were estopped from claiming any right in.the suit properties as an absolute estate had been given to Pattobai in respect of those properties and (2) thM under any circumstance the compromise in question should be considered as a family arrangement and as such is not liable to be reopened. This decision was affirmed by a single judge . of the High Court in second appeal. Thereafter the plaintiffs took up the matter in appeal to the Letters Patent Bench. The Letters Patent Bench reversed the judgment of the courts below. It held that the compromise entered into in 1941 was an illegal compromise and as such the same cannot be used to non-suit the plaintiffs. It also disagreed with the conclusion of the learned sin)e judge that the compromise recorded amounted to a family settlement. These appeals are directed a!lllinst tbal. judgment.\n\nKRISHNA BIHARILAL Y. GULABCHAND (Hegde, J.)\n\n3 J\n\nThe first question that falls for consideration is whether on A a true construction of the compromise decree it can be held that\n\nPattobai had been given an absolute estate ? According to the plaintiffs Pattobai having been impleaded to the suit as a legal representative of her husband, in law she could not take an absolute estate; she could only have a widow's estate and therefore in construing the compromise decree, we must bear in mind the B principles of Hindu Law and if we do so, the only possible conclusion is that the intention of the parties was only to give her a life estate. On the other hand it is contended on behalf of the defendant that under law Pattobai was entitled to enjoy all the properties included in the plaint in the earlier suit during her life time but she agreed to give up her right in bulk of the properties in consideration of her getting an absolute estate in a C small portion of the properties involved in that suit. It was further urged on his behalf that the compromise deed specifically says that the properties given to Pattobai are to be enjoyed by her as \"MaJik Mustikal\" which means absolutely and hence there is no basis for the contention that she took a widow's estate.\n\nThe ordinary rule of construction of a document is to give effect to the normal and natural meaning of the words employed in the document. The compromise deed specifically says that the properties given to Pattobai were to be enjoyed by her as \"Malik Mustakil''. The meaning of the expression \"Malik Mustakil\" an urdu word, has come up for consideration before this Court in some cases. In Dhyan Singh and anr. v. Jugal Kishore & anr(') this Court ruled that the words \"Malik Mustakil\" were strong, clear and unambiguous and if those words are not qualified by other words and circumstances appearing in the same document, the courts must hold that the estate given is an absolute one. A similar view was taken by the Judicial Committee in Blshunath\n\nPrasad Singh v. Chandika Prasad Kumari('). The circumstances under which. the compromise was entered into as well as the Ian guage used in the deed do not in any manner go to indicate that the estate given to Pattobai was anything other than an absolute estate.\n\nThe Letters Patent Bench of the High Court held that the compromise entered into was illegal compromise. It came to that conclusion on the basis that a Hindu widow cannot enlarge\n\nher own rights by entering into a compromise in a suit. But the High Court overlooked the fact that this was not a compromise entered H into with third parties. It was a compromise entered into with the\n\n(!l [1952] S. c. R. 478.\n\n(2) 60 I. A. S6.\n\npresumptive reversioners. Further at no stage the plaintiffs had\n\npleaded that the compromise entered into in 1941 was an illegal compromise. The plaintiffs took no such plea in the plaint. There was no issue relating to the validity of the compromise. Hence the High Court was not justified in going into the validity of the compromise. Further even if the compromise was an invalid one, the parties to the compromise are estopped from challenging the\n\nimpugneS2] S. C. R. 478. '\n\nKRISHNA BIHARILAL •. GU'.ABCHAND (Hegde, J.)\n\nthe defendants that she can take a portion of the suit properties absolutely.\n\nThis is a representation of a fact and not of Jaw.\n\nThe representation is that the defendants were willing to confer on Pattobai an absolute right in a portion of the suit properties if she gave up her right in the remaining properties.\n\nPattobai relied on that representation and gave up her claim in respect of a substantial portion of the properties included in the earlier suit.\n\nHence the plaintiffs particularly Lakshmichand and Ganeshilal who alone were tee reversioners to the estate of Bulakichand on the d?.te of the death of Pattobai, are estopped from contending\n\nth1t they are entitled to succeed to the properties given to Pattobai.\n\nThe other plaintiffs have no independent right of their own ken any specific plea of estoppel.\n\nThe next question that we have to consider is whether the compromise in question can be considered as a settlement of family disputes. It may be noted that Lakshmichand and Ganeshilal who alongwith Pattobai were the principal parties to the compromise were the grand-children of Parvati who was the aunt of Bulakichand. The parties to the earlier suit were near relations. The dispute between the parties was in respect of a certain property which was originally owned by their common ancestor namely Chhedilal. To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family.\n\nAs observed by this Court in Ram Charan Das\n\nv. Girjanandini Devi and ors.(') the word \"family'\" in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in Taw as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near re lations then the settlement of such a dispute can be considered as a family arrangement-see Ramcharan Das's case(')\n\nThe courts lean strongly in favour of the family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all-see Sahu Madho Das and ors. v. Pandit M11ka11d Ram and anr.(')\n\nFor the reasons mentioned above we are of the opinion that in view of the compromise entered into between the parties in 1941, the suits from which these appeals arise are not maintainable. In that view, it is not necessary to go into the question whether the alienations were effected for valid necessity, a question that has not been gone into finaJ!y.\n\nIn the result these appeals are allowed and the suits from which these appeals arise dismissed with costs throughout.\n\nG.C.\n\n(!) [1965] 3 S. C.R. 841 at p, 850 & 851. (2)\n\nAppeals allowed.", "total_entities": 8, "entities": [{"text": "KRISHNA BIHARILAL", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "KRISHNA BIHARILAL", "offset_not_found": false}}, {"text": "GULABCHAND AND ORS", "label": "RESPONDENT", "start_char": 22, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "GULABCHAND AND ORS", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY, JJ.", "label": "JUDGE", "start_char": 76, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "[1961] 3 S.C.R. 624", "label": "CASE_CITATION", "start_char": 4283, "end_char": 4302, "source": "regex", "metadata": {}}, {"text": "S6", "label": "PROVISION", "start_char": 13819, "end_char": 13821, "source": "regex", "metadata": {"statute": null}}, {"text": "S2", "label": "PROVISION", "start_char": 16863, "end_char": 16865, "source": "regex", "metadata": {"statute": null}}, {"text": "[1961] 3 S. C. R. 624", "label": "CASE_CITATION", "start_char": 19721, "end_char": 19742, "source": "regex", "metadata": {}}, {"text": "[1965] 3 S. C.R. 841", "label": "CASE_CITATION", "start_char": 21915, "end_char": 21935, "source": "regex", "metadata": {}}]} {"document_id": "1971_1_284_293_EN", "year": 1971, "text": "STATE OF MYSORE\n\nSWAMY SATYANAND SARASWATI, RELIGIOUS\n\nPREACHER, RAICHUR March 31, 1971\n\n(G. K. MITTER, K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.J\n\nGrant by Jagirdar-1/ includes right to minerals in favour of grante11 -Burden of proof.\n\nThe Nizam of Hyderabad granted a jagir to his prime minister. The successor of the jagirdar granted an island in one of the villages, comprising a hillock of granite, to the predecessor-ininterest of the respondent.\n\nThe area covered by the grant was acquired by the State Government for purposes of an irrigation project.\n\nOn the question whether the respondent was entitled to sub-soil rights, and as a consequence, became entitled to compensation for the granitt:' and quarries as minerals, HELD: It was for the respondent to establish his claim to minerals or quarry rights by putting forward proof of the grant thereof by the Nizam to the jagirdar and by the jagirdar to his predecessor. But ssum ing that the Nizam conferred the right on the jagirdar, the patta granted by the jagirdar and the connected documents showed that what was in con templation of the jagirdar and his grantee at the time of the grant. was either the cultivation of the land or the grazing of cattle on it.\n\nNobody at that time had any thought or idea of the land being put to any other use or any mining or quarrying rights being exercised therein. When the granter was careful to exclude even the fruit bearing trees, it would be wrong to hold that he must have parted with the sub-soil rights by implication. Therefore, the right to minerals was not granted to the respondent'i predecessor. [287B-C ; 289B; 2920-E]\n\nWhat has to be considered in each case is the purpose for which the lands are leased or an interest created therein with all the clauses which throw any light on the question as to whether the granter pur?l\"lrted to include his rights to the sub-soil in the grant when there was no express mention of it.\n\nIf the grant shows that the purpose of the grant y.-a5 tu allow the user of the surface only it would be wrong to presume that subsoil rights were also covered thereby.\n\n[292C-D]\n\nThe test of what is a mineral is, what at the date of the instrument, the word n1eant in the vernacular of the mining world, the commercial world. and among landowners: and in case of conflict that meaning mut prevail over the purely scientific meaning. Since granite is a mineral according to this test the respondent had no right to the granite or qu1rries.\n\n[:.93B-CJ\n\nState of Andhra Pradesh v. Duvvuru Balara1ni Reddy, [1963] 1 S.C.K. 173, followed.\n\nHari Narayan Singh v. Sriram Chakravarti, 37 I.A. 136, Durga Prasad Singh v. Braja Nath Bose, 39 I.A. 133, Girdhari Singh v. Megh Lal Pandey. 44 I.A. 246. Sashi Bhusan Misra v. Jyoti Prasad Singh Dea, 44 I.A. '16,\n\nGovinda Narayan Singh v. Sham Lal Singh, 58 I.A. 125, Bejoy Singh Dudhoria v. Surendra Narayan Singh, l.L.R. 61 Cal. I (P.C.) and Attorney General v. Welsh Granite Co. I The Law Times Reports 549, applied.\n\nGVIL APPELLATE JURISDICTION : Civil Appeal No. 496 of A 1966.\n\nAppeal by special leave from the judgment. and order dated August 10, 1964 of the Mysore High Court in Regular Appeal (fl) No. 75 of 1956.\n\nS. T. Desai, B. D. Sharma, Shyama/a Pappu and S. P. Nayar, for the appellant.\n\nM. Natesan, B. Parthasarathy, /. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for respondent Nos. 1 and 3.\n\nThe Judgment of the Court was delivered by\n\nMitter, J.-The main question involved in this appeal is, whether the respondent was entitled to sub-soil rights by virtue of the pattas granted.in favour of his predecessor-in-interest by Nawab Salar Jung III of Hyderabad and as a consequence thereof became entitled to compensation claimed by him for acquisition of a large block of land containing a hillock of granite which was required for the Tungabhadra Project and was notified for acquisition under the Hyderabad Land Acquisition Act on February 3, 1946.\n\nThe relevant facts are as follows. In 1820 the Nizam of Hyderabad granted a jagir, the terms whereof do not appear from the record before us, to bis Prime Minister known as Nawab Salar Jung r. This jagir consisted of many villages in the district of Raichur one of them being Madlapur on the bank of the river Tungabhadra.\n\nIn the year 1930 the successor of the original grantee of the jagir, Nawab Salar Jung III made a grant of an island in that village comprising S. Nos. 154, 312 and 313 with a hillock rising to a height of 250 ft. and measuring Ac. 290-00 in favour of one Swami Nijananda, the predecessor-in-interest of the respondent.\n\nIn February 1946 the entire area covered by the grant to Swami Nijananda was proposed to be acquired for an irrigation and hydroelectric project known as the Tungabhadra Project which had been embarked upon by the Governments of Hyderabad and Madras States.\n\nThe purpose of acquisition was the gathering of granite stone .for the construction of a dam across the river Tungabhadra. The acquisition proceedings were completed pursuant to a final notification made on June 16, 1947 followed by an award by the Land Acquisition Officer on July 24, 1950.\n\nBefore the Land Acquisition Officer two claims were put forward, one on behalf of the respondent Swami Satyananda and the other by Nawab Salar Jung III.\n\nBut as all jagirs including that of Nawab Salar Jung were abolished during the pendency o( the acquisition proceedings, the claim for compensation by Nawab\n\n286 SUPRBllE COURT l\\EPOl\\11 [1971) SUPP. s.c.R.\n\nSalar Jung III also disappeared.\n\nThe claim of Swami Satyanan.da was for Rs. 29,91,600.\n\nThe Land Acquisition Officer awarded Rs. 31,260.8-0 as the total compensation disallowing the claim in respect of the granite hillock on the ground that it was not covered by the grant to Swami Njjananda.\n\nThe District Judge to whom reference was made under the Land Acquisition Act enhanced the compensation to Rs. 48,892 exclusive of statutory allowance and interest.\n\nTwo of the issues framed by the District Judge related to the respondent's claim to a right in the quarry and also to the situs thereof i.e. as to whether it was within the patta land belonging to the claimant He found that the rock was situated within the patta land of the claimant but with regard to the quarry rights he took the view on the basis of two Farmans of the Nizam Bxs. A-21 and A-22 and Section 2(d) of the Mines Act and Section 3 of the Hyderabad Land Revenue Act that the claimant had no right to the minerals and quarries. He did not record any finding as to whether the jagir granted by the Nizam included the mining rights and whether the patta granted by the jagirdar conferred the same rights on the claimant in view of his conclusion on the points of law urged that mining rights were in the exclusive ownership of the Nizam.\n\nThe High Court took the view that the District Judge had proceded on the assumption that there was a grant to Nawab Salar Jung I with all the mineral products in the land by the jagir ot 1820.\n\nIt however held, differing from the District Judge, that the Farmans Bxs. A-21 and A-22 did no more than explain the provisions of Section 63 of the Land Revenue Act and did not affect any subsisting rights in the minerals if they belonged to the jagi.rdar.\n\nAccording to the High Court the question as to whether the grant to Nawab Salar Jung did or did not include the granite in the hillock was never rl}ised at any stage and it was assumed by every one that the gran\\ to Nawab Salar Jung included the right to granite and. that right was a subsisting right even while the Hyderabad Lam! Revenue Act 1907 was enacted.\n\nThe High Court was not willing to entertain the contention raised by the Advocate-General for the first time that the grant did not include the right to granite in the hillock.\n\nThe High Court apparently fortified its conclusion placing reliance on the fact that copies of all the grants of jagirs should have been available with the State authorities and as the original grant to Nawab Salar Jung or an authenticated copy thereof was not produced, the necessary inference would be that the same would not support the contention of the Advocate-General.\n\nThe High Court further took the view that the granite in respect of which compensation was claimed in the case was not a mineral and that being so neither Section 63 of the Hyderabad\n\nMYSORB v. SWAMY SAlYANAND (Miller, J.)\n\nLand Revenue Act nor the Farmans referred to in Exs. A-21 and A-22 were relevant to the issue before it and it would not be possible to hold that the minerals and mineral products in the hillock vested in the Government under Section 63 of the Hyderabad Land Revenue Act.\n\nIn our view it is not necessary to consider the effect of the Farmans or of Section 63 of the Hyderabad Land Revenue Act. It was for the respondent to establish his claim to minerals or quarry rights by putting forward proof of tlie grant thereof by the Nizam to Salar Jung I and to show that his rights in the land held by him were co-extensive with those of Nawab Salar Jung III.\n\nThere is no scope for any presumption that the Nizam had parted with the mineral rights to the jagirdar or that the jagirdar had done so in his turn.\n\nEven assuming that the Nizam conferred the right of minerals in the land or to quarry fot granite therein to Nawab\n\nSalar Jung I, the question still remains, what right did the patta of the Salar Jung estate confer on the predecessor-in-interest of the claimant.\n\nThe patta for S. Nos. 312 and 313 was marked as Ex. 49 in this case.\n\nIt contains various columns including those for the name of \"Khatedar\", 'any increase or decrease in the land on account of cultivation or left uncultivated', 'remarks of the village officers', \"opinion of the Tahsildar\" and \"the approval of the 'Nizam' of settlement\".\n\nUnder the column headed \"opinion of the Tahsildar\" is to be found the following : -\n\n\"The land bearing S. No. 254 Paramboke known as 'Bolurguddi' is situated in Madlapur village, the area of which is Ac. 290-00 and it has not been surveyed. Narasimha Bharati Swamy has filed an application wherein he has approved/accepted land the extent of Ac. 89-00 area in Tahsil office.\n\nAs the village was under survey the Tahsil office &ent the file to the Settlement Department ...\n\nAccording to the profit accruing to the State as pointed out by the applicant, the survey No. 312 measuring 109 acres and 13 guntas, having an assessment of Rs. 27 and Survey No. 313 measuring 13 acres 13 guntas having an assessment of Rs. 19 in all 183 acres 33 guntas and with a total assessment of Rs. 46 were given into the possession of the applicant and the remaining 109 acres 20 guntas have been included in the Paramboke the survey number of which is 154, the Government has got the right over the trees bearing fruit.\n\nThe patta bearing S. Nos. 312-313 may be made in the name of the applicant Narsimha Bharati Swamy from 1331 Fasli. The letter received from the Settlement is worthy of perusal.\n\nAccording to the remarks of Settlement Department, the entry of uncultivated land has been made since 1330 F. because it was\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.ll\n\napproved in 1330 F. The file of the Thasil has also been submitted. The acceptor has filed an application in the District office stating that the entry of the patta be made in the year 1330 Fasli and that he is willing to pay the amount.\"\n\nbA. 50 is a copy of the proforma No. 8 (Takavi) statement ol village Madlapur and is for Paramboke (pattal granted on 7th Mehar 13 36 F. The remarks of the Tahsil office in this case read :\n\n\"An assessment of Rs. 28-4-9 of the unsurveyed Paramboke No. 154 measuring 106 acres 20 guntas at the Bolguddi is approved as per the District Office Order.\n\nNijanand Narasimha Bharati Swamy of Dolurguddi is granted the excess of 'Lawani' in accordance with Rs. 04-0 agreement from 'Dhara' to 'Rev-Sharan'.\"\n\nReference may also be made lo the letter issued by the Superintendent, Settlement Department, Salar Jung Estate where the petition for grant of patta of land of Bolur Gedda by Narasimha Bharati Swamy mentioned as one for the purpose of grazing cattle.\n\nAccording to this letter :\n\n\"The land once bearing survey No. 244 measuring 209 acres and known as Bolur Gedda has been lying as a waste since a long time.\n\nThe land in the said survey number is not fit for cultivation.\n\nOn all the occasions water of the stream will be surrounded on all the four sides.\n\nIt would be useful only for grazing the cattle.\n\nNear about the said survey land there are two tamarind trees.\n\nBut the product of the trees has not been auctioned at any time. . .\n\nNow regarding the rent received by the Government of the State as indicated by the petitioner in regard to the aforesaid land of the land measuring 109 acres 13 guntas and assessed at Rs. 27 and survey land No. 313 measuring 74 acres and 20 guntas assessed at Rs. 19, thus a total of 183 acres and 33 guntas assessed at Rs. 46 has been given in possession of the petitioner and the rest of the land 106 acres and 20 guntas has been included in this 'purpose' land only and its survey number is 154.\n\nThe tamarind trees standing on the said survey land would belong to the Government only.\n\nIn case a petition is presented in future the lands may be included in the patta as per rules. The patta of the survey lands bearing S. Nos. 312, 313 may be madt-. in the name of the petitioner Sri Nijanand Narasimha Bharati Swamy from the year 1331 F.\" It is amply clear from the above that what was in contempla.tion of the grantor and gantee at the time of the grant was either the cultivation of the land or the grazing of cattle on it.\n\nNobody at that time had any thought or idea of the land being put to any other use or any mining or quarrying rights being exercised therein.\n\nThe grantor was careful to exclude even the fruitbearing trees. It would be wholly unrealistic to construe the grant as conferring mining rights by implication simply because of the fact that there was no mention of it.\n\nA long line of decisions of the Judicial Committee of Privy Council relating mainly to the grants of land and leases by the Zamindars in Bengal makes it amply clear that sub-soil rights are not to be treated as having been conveyed by implication in grantio\n\nof surface rights to tenure-holders pattidars (lessees) etc.\n\nIn this connection it may be noted that by the Permanent Settlement of 1793 the zamindars with whom the lands were settled were held to be owners of all mines and minerals in their zamindaries. The decisions of the Privy Council relate principally to grants of land in coal-bearing areas before the discovery of any coal therein. One of the early cases of this type was that of Hari Narayan Singh v.\n\nSriram Chakraval'ti('). There the dispute was as to the right to minerals lying under a village called Petena situate within the zamindari of the first appellant. The appellant's predecessor had conveyed some sort of interest in the village to a set of persons called Goswamis who were shebaits or priests of an idol.\n\nThe Goswamis had purported to grant to the respondents two leases by virtue of which the latter claimed to have exercised rights with respect to minerals.\n\nThere was no evidence whatever that the zamindar Raja had ever granted mineral rights to the Goswamis or any other person.\n\nThe courts in India concurrently found that no prescriptive rights had been proved by the respondents to any underground rights in the village.\n\nThe High Court took the view that the Goswamis being tenure-holders had permanent heritable and transferable rights, from which it was inferred that the underground rights also belonged to them.\n\nThe Subordinate 1 udge had however inferred from the smallness of the jumma (rent) that only the surface rights and not the underground rights were intended to be let out to the Goswamis. The Board held that (p. 146) :\n\n••. . . . the title of the zamindar raja to the village Pctena as part of his zamindari before the arrival of the Goswamis on the scene being established as it has been.\n\n(I) 37 I. A. 136.\n\n19-1 S.C. India/71\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nbe must be presumed to be the owner of the underground rights thereto appertaining in the absence of evidence that he ever parted with them, and no such evidence has been produced.\"\n\nDurga Prasad Singh v. Braja Nath Bose (') was a case where the zamindar of a permanently settled estate who asked for a declaration of his right to minerals as against a lessee from a dig war tenure bolder.\n\nThe digwar tenure was originally granted in consideration of the perfonnance of military servic; e to which police duties were attached.\n\nThe tenure was hereditary and inalienable, the digwar being appointed by Government and being liable to be dismissed by Government for misconduct.' On such dismissal the next male heir if fit to be appointed had the right\n\nto be appointed.\n\nThe digwar of Tasra granted a perpetual lease of the coal mines underlying two villages to Tasra Coal Company in 1892. On the question as to whether the digwar had a proprietary right in the underground minerals the Board took the view that the permanent settlement having been made between the Government and the zamindar of Jharia and no attempt having been made to prove that the mineral rights were vested in the digwar before or at the time of the permanent settlement and there being no evidence to show that the zamindar had ever parted with mineral rights to the digwar, the latter could not be held to have any proprietary right in the minerals.\n\nIn Girdhari Singh v. Megh Lal Pandey (') the question before the Board was whether a mokarari lease of land with all rights carried a right to the subjecent minerals in a permanently settled estate.\n\nAccording to the Board (see page 248) :\n\n\"It is unavailing to urge that the right granted by the mokrari pottah 'to the lessee is of a permanent, heritable, and transferable character, as, even although this be the case, it does not advance the question whether tbe lease itself embraced within its scope the mineral rights. On the contrary, unless there be by the terms of the lease an express or plainly implied grant of those rights, they remain reserved to the zamindar as part of the zamindari.\"\n\nTheir Lordships referred to the decisions mentioned above as also to that of Sash# BhushQfl Misra v. Jyoti l'rasahad Singh Deo(\") and adopted the principle (p. 249) :\n\n\" ...... when a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable, and. transferable, minerals will not be\n\n(I} 39 1 •. A. 133.\n\n(3) 44 J, A. 46.\n\n(2) 44 I. A. 246.\n\nMY'SORE v. SWAMY SAlYANAND (Mitter, J.) 291\n\nheld to have formed part of the gi:ant in the absence of A express evidence to that effect.\"\n\nAccording to the Board :\n\n\"On the assumption that the expression (mai hak hakuk) means 'with all rights', or may be properly am plified as 'with all right, title and interest', such expres.. sions ... did not increase the -actual corpus of the subject affected by the pottah.\n\nThey only give expressly what might otherwise quite well be implied, namely, that that corpus being once ascertained, there will be carried with it all rights appurtenant thereto, including not only possession of the subject itself, but it may be of rights of passage, water or the like which. enure to the subject of the potta and may even be derivable from outside properties . . It must be borne in mind also that the essential characteristics of a lease is that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by reason of the user disappear.\n\nIn order to cause the latter specially to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased.\"\n\nAccordingly it was held that the words founded on did not add to the true scope ol' the grant nor cause mineral rights to be included within it\n\nIt should be noted here that there was a reference to the trees on the land in the pottas it being expressly provided that the lessee would be entitled to take the price of the trees by cutting and selling them and the zamindar would not have any right thereto.\n\nThis was held by the Board to negative the idea that mokarari pottah could be comprehensively viewed to include mineral rights.\n\nAccording to the Board :\n\n\"Such a lease is a lessee of the surface only. This is the general case to which in the present case there is alone superadded a right to the trees. The minerals are not included.\"\n\nMost of the above cases were referred to again by the Board in Govinda Narayan Singh v. Sham Lal Singh (') where after noting tlte earlier cases the Board concluded that in the case of any claim against the zamindar to the lands which were included at the permanent settlement the burden of proof is upon 4ke\n\n(l) SS J. A. 12S.\n\nSUPPREME COURT REPORTS [1971] SUPP. s.c.a.\n\nclaimant. Reference may also be made to Bejoy Singh Dudhoria\n\nv. Surendra Narayan Singh (') where . the Board held that the grant of a patni lease by a zamindar of his zamindari lands \"in\n\neluding all interest therein. and jalkar, banker, falkar, bcels and jhils at an annual jama containing a stipulation that the grantee should not cut trees or excavate a tank was onl:ii consistent with the theory that the lessee and those claiming under him were not entitled to excavate the soil for the purpose of making bricks and that there was no transfer of the property in the soil\".\n\nIn our view the principle which is to be deduced from these cases is not one which is to be confined to the case of zamindars in permanently settled estates.\n\nWhat has to be considered in each case is the purpose for which the lands are leased or an interest created therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the subsoil in the grant when there was no express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby.\n\nThe patta Ex. 49 in this case amply demonstrates that what was in contemplation of the parties ait the time of the grant in 1930 was. the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-baring trees.\n\nIt would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with. his sub-soil rights by implication.\n\nWe may also note that in State of Andhra Pradesh v. Duv vuru Balarami Reddy (') where the respondents had obtained mining leases for mining mica from the owners of a certain shor triem village it was held that shortriemdars had no rights in the minerals and the leases granted by them to the respondent had no legal effect.\n\nIt is true that this Court was there dealing with rights of a different class of persons and it was claimed on behalf of the respondent that inasmuch as the grant included poram\n\nboke if followed that mere surface rights were not the subject matter of the grant.\n\nRejecting this contention the Court observed (p. 183) :\n\n\"So far as the sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that subsoil rights were also included therein. w\n\n(1) I. L.R.. 61 Calcutta I. (2,) [1963l1 S. C.R.. 173'.\n\nIt is not in our view possible to hold otherwise than that granite A is a mineral. According to Halsbury's Laws of England :\n\n\"There is no generad definition of the word 'mineral'.\n\nThe word is susceptible of expansion or limitation in meaning according to the intention with which it is used ...\n\nIt is a question of fact whether in a particular case a substance is a mineral or not. ..\n\nThe test of what is a mineral is what, at the date of the instrument in question, the word meant in the verna cular of the mining world, the commercial world, and among landowners, and in case of i::onfiict this meaning must prevail over the purely scientific meaning\". (See Vol. 26, 3rd edition, Art. 674 page 320).\n\nIn Article 675 at page 322 the learned authors summarise the case law on the subject as to whether particular substances are minerals or not. Reference is there made to the case of Attorney General v. Welsh Granite Co.(') where granite was held to be included under the reservation of \"minerals\" in the Enclosure Act which reserved all mines, minerals, ores, coal, limestone, and slate to the Crown.\n\nAccording to Lord Coleridge, the word \"minerals\" was large enough to include granite. ·\n\nIn the view we have taken, it is not necessary to consider the effect of the Farmans or Section 63 of the Hyderabad Land Revenue Act.\n\nIn our view the pattas only indicating that the grant was for the purpose of cultivation or grazing IX cattle with the express reservation of the trees on the land to the grantor, the question of grant of sub-soil rights by implication does not arise.\n\nIt is therefore not necessary to consider the effect of the Farmans Exs. A-21 and A-22 or of Section 63 of the Hyderabad Land Revenue Act.\n\nThe claim to compensation on the basis of the sub-soil rights to the hillock must therefore be negatived and the appeal allowed.\n\nIn the result the decree of the High Court regarding the minerals in the land or quarry rights will be set aside and the judgement and order of the District Judge on that point restored. The respondent will be entitled to the costs of the appeal in pursuance of the order of this Court made as a condition for setting aside the abatement of the appeal.\n\nV.P.S.\n\nAppeal allowed.\n\n(I) I The Law Times Reports S49.", "total_entities": 19, "entities": [{"text": "STATE OF MYSORE", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE", "offset_not_found": false}}, {"text": "SWAMY SATYANAND SARASWATI, RELIGIOUS\n\nPREACHER, RAICHUR", "label": "RESPONDENT", "start_char": 17, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "SWAMY SATYANAND SARASWATI, RELIGIOUS PREACHER,RAICHUR", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 90, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER*", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 104, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY, JJ", "label": "JUDGE", "start_char": 120, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "Section 2(d)", "label": "PROVISION", "start_char": 6371, "end_char": 6383, "source": "regex", "metadata": {"statute": null}}, {"text": "Mines Act", "label": "STATUTE", "start_char": 6391, "end_char": 6400, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 6405, "end_char": 6414, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 63", "label": "PROVISION", "start_char": 7144, "end_char": 7154, "source": "regex", "metadata": {"statute": null}}, {"text": "Revenue Act 1907", "label": "STATUTE", "start_char": 7604, "end_char": 7620, "source": "regex", "metadata": {}}, {"text": "Section 63", "label": "PROVISION", "start_char": 8345, "end_char": 8355, "source": "regex", "metadata": {"linked_statute_text": "Revenue Act 1907", "statute": "Revenue Act 1907"}}, {"text": "Land Revenue Act", "label": "STATUTE", "start_char": 8414, "end_char": 8430, "source": "regex", "metadata": {}}, {"text": "Section 63", "label": "PROVISION", "start_char": 8640, "end_char": 8650, "source": "regex", "metadata": {"linked_statute_text": "Land Revenue Act", "statute": "Land Revenue Act"}}, {"text": "Section 63", "label": "PROVISION", "start_char": 8763, "end_char": 8773, "source": "regex", "metadata": {"linked_statute_text": "Land Revenue Act", "statute": "Land Revenue Act"}}, {"text": "Art. 674", "label": "PROVISION", "start_char": 24279, "end_char": 24287, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 675", "label": "PROVISION", "start_char": 24303, "end_char": 24314, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 63", "label": "PROVISION", "start_char": 24878, "end_char": 24888, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 63", "label": "PROVISION", "start_char": 25271, "end_char": 25281, "source": "regex", "metadata": {"statute": null}}, {"text": "S49", "label": "PROVISION", "start_char": 25855, "end_char": 25858, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_294_298_EN", "year": 1971, "text": "• F\n\nPARSHOTfAM JADAVJI JANI\n\nSTATE OF GUJARAT & ORS.\n\nApril l, 1971\n\nIS. M. SIKRI, c. J., G. K. MITTER, K. s. HEGDE, A. N. GROVER\n\nAND P. JAGANMOHAN REDDY, JJ.J\n\nLand Acquisition Act (I of 1894), ss. SA and 55-Rules framed regc,. lating enquiry under s. SA-Complied with-Acquisition for Corporatio:i\n\n-Right to cross examine ofjicers of Corporation.\n\nBy a notification issued under s. 4 of the Land Acquisition Act, 1894, the State Government declared that the appellant's lands were needed for the public purpose of constructron of ap Industrial Estate by the Gujarat Industrial Development Corporation. The officer on special duty inforn1ed the appellant that if he had any objection to the acquisition he might file objections on or before a particular date and. that he or his counsel would be heard at the time of filing the objections. The appellant filed his objections and prayed that the officers of the Corporation may be summoned for the purpose of cross-examination to show that the proposed acquisition was not for a public purpose and that there was no need to acquire his land, and that a personal hearing may be granted to him. The hearing was fixed for a particular date and the date was extended from time to time but the appellant did not appear on those dates nor did he apply for any, further extension of time. His written objection were considered by the officer and included in his report to the Government under s. SA.\n\nOn the question whether the report was vitiated because the officer had not granted an opportunity to the appellant to cross-examine the offi cers of the Corporation,\n\nHELD: The question whether the inquiry was administrative or quasi judicial did not arise. Rules had been framed under s. 55 of the Act for the guidance of officers dealing with objections under s. SA, and the rules had been complied with in the present case. The appellant was given an opportunity to be heard personally but he did not choose to avail himself of that opportunity. He could not, under the rules, claim to cross-examine officers of the Corporation when they had not given any evidence before the officer on special duty and there was no principle which entitled the appellant to claim such right [297H; 298A-B] Gonda/al v. State, (1963) Guj. LR. 326, referred to.\n\nG CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1990 of 1970.\n\nAppeal from the judgment and order dated July 31, 1970 of the Gujarat High Court in Special Civil Application No. 464 of 1970.\n\nH P. M. Raval and M. V. Goswami, for the appellant.\n\nB. D. Sharma, for the respondents Nos. 1 and 2.\n\nB. Sen and K. L. Hathi, for respondent No. 3.\n\nPARSHOTTAM v. GUJARAT (Sil-\n\ntermined by the seizure in question?\"\n\nThe trial court held that the order of seizure in respect of the stock of sugar was valid.\n\nIt was further held that the plaintiff's right as a pledgee could not be extinguished by seizure of the sugar in its possession and though the attachment order of the Certificate Officer was legal and binding on defendant No. 2 it was not binding on the Bank (plaintiff) and it could be effective only in respect of that portion of the price which was not necessary for the liquidation of the dues of the plaintilf from defen dant No. 2. A decree was passed in favour of the plaintiff against defendant No. I only for Rs. 93,910-10-9 with interest at 6% per annum from the date of the suit till realisation.\n\nDefendant No. 1 (State of Bihar) filed an appeal to the High Court. The High Court was of the view that in the presence of the finding that the plaintiff had not been wrongfully deprived of the sugar on account of the lawful seizure or its price owing to the certificate proceedings started by the Cane Commissioner the plaintiff was not entitled to any decree against the State.\n\nBut it was entitled to a decree against defendant No. 2 and the other defendants.\n\nConsequently a decree against defendant No. I was set aside and instead of decree was granted against the other defendants.\n\nNow it is common ground that the plaintiff (which is the appellant before us) held the sugar which was seized from its custody as security for payment of the debts or advances made to defe.ndant No. 2 in its cash credit account.\n\nThere were arrears of certain cess due from defendant No. 2.\n\nAs stated before, the Cane Commissioner took proceedings under the Public Demands Recovery Act and attached the price of the sugar which had been deposited by the appropriate authorities in the Government Treasury instead of being paid to the plaintiff.\n\nThe Cane Commissioner indisputably did not have any right of priority over the other creditors of defendant No. 2 and, in particular, the secured creditors.\n\nSection 172 of the Contract Act defines a pledge to mean the bailment of goods as security for payment of debt or\n\nSUPREMB COURT REPORTS [1971) SUPP. s.c.R.\n\n.A perfonnance of a promise.\n\nThe bailor is called the \"pawnor\" and the bailee is called the \"pawnee\". Section 173 of that Act provides that the pawnee may retain the goods pledged not only for the payment of the debt or perfonnance of the promise but also for the interest of the debt etc. Section 176 is in the following terms : B\n\n\"If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawner upon the debt or promise, and retain the goods pledged as a collateral security ; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale.\"\n\nIf the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor.\"\n\nSection 180 is to the effect that if a third person wrongfully de prives the bailee of the use of the possession of the goods bailed or does him any injury the bailee is entitled to use such remedies as the owner might have used in the like case if no bailment had been made and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury. According to Section 181 whatever is obtained by way of relief or compensation in any such suit shall, as between the bailor and bailee, be dealt with according to their respective interests. Relying on the above two sections the High Court came to the conclusion that a pawnee has merely the possession of the goods coupled with a power to sell them on default by the pawnor but the latter retains the ownership subject to a lien to the extent of the debt enforcible by exercise of the power of sale.\n\nIn the present case the sugar had been seized and then sold.\n\nThe sale proceeds would have been available to defendants 2 to 5 subject to the claim of the plaintiff against them but it ceased to have any lien on the pledged property or the sale proceeds against any third party including the State as soon as it was legally deprivell of the possession of the pledged goods.\n\nAccording to the Statement in Halsbury's Laws of England \"pawn\" has been described as a security where by contract a deposit of goods is made a security for a debt and the right to tb.e property vests in the pledgee so far as is necessary to secure the debt ; in this sense it is intermediate between a simple lien anti a\n\nBANK OP BIHAR •• BIHAR (Grover, J.) 303'\n\nmortgage which wholy passed the property in the thing conveyed('). \"The pawnee has a special property or special interest in the thing pledged, while the general property therein continues in the owner.\n\nThat special property or interest exists so that the pawnee can compel payment of the debt or can sell the goods when the right todo so arises. This special property or interest is to be distinguished from the mere right of detention whiCh the holder of a lien possesses, in that it is transferable in the sense that a pawnee may assign or pledge his special property or interest in the goods\". (') \"Where judgment has been obtained against the pawnor of goods and execution has issued thereon, the sheriff cannot seize the go\\Jds pawned unless he satisfied the claim of the pawnee\". (based mainly on Rogers v. Kennay('). \"On the bankruptcy of the pawnor the pawnee is a secured creditor in the bankruptcy with respect to things pledged before the date of the receiving order and without notice of a prior available act of bankruptcy.(') It has not been shown bow the law in India is in any way different from the English law relating to the rights of the pawnee vis-a-vis other unsecured creditors of the pawnor.\n\nIn our judgment the High Court is in error in considering that the rights of the pawnee who had parted with money in favour of the pawnor on the security of the goods can be defeated by the goods being lawfully seized by the Government and the money being made available to other creditors of the pawnor without the claim of the pawnee being fully satisfied.\n\nThe pawnee bas special property and a lien which is not of ordinary nature on the goods and so long as his claim is not satisfied no other creditor of the pawnor has any right to take away the goods or its price'. After the goods had been seized by the Government it was bound to pay !he amount due to the plaintiff and the balance could have been made available to satisfy the claim of other creditors of the pawner. But by a mere act of lawful seizure the Government could not deprive the plaintiff-of the amount which was secured by the pledge of the goods to it. As the act of the Government resulted in deprivation of the amount to which the plaintiff was entitled it was bound to reimburse the plaintiff for such amount which the plaintiff in ordinary course would have realized by sale of the goods pledged with it on the pawnor making a default in payment of debt.\n\nThe approach of the trial court was unexceptionable. The plaintiff's right as a pawnee could not be extinguished by the seizure of the gonpluytti Provident Fund A.ct, 1957, s. 1(3)(a) & (b)-Employmenl of more than 20 person9--Casual labour whether to be included for dtttrmining number of employees-Minimum period of employment whether r m0re pers0ns; It may be incidentally mentioned here. that originally, i.e., prior to the Amendment Act, 46 of 1960 the number of employees in the establishment that would be brought witliin the scope of SCction 1(3) was fixed at fifty. ·\n\nWe find it difficu1t to .11gree with the view that twenty or more persons can be. Said to be employed or that an establishment employs tweri~ or more persons merely because on one day or two 'days:· the services of twenty or more persons were engaged:(Oni particillar plltpose. To accept this Contention wouJd be' tO unduly erilarge the content of the Section. To attract the applicability of Section 1 (3) ihe numbe(of persons should come upto minimum of !WeD, ty. The underlying idea seems to be that' th!' establishment should have ty persons on its mustenolls and working regularly.\n\nCould it be asserted that a factory gives employment to twty persons merdy . because twenty . persons are ellgllged by that factory on a particular day for some special job.\n\nIn our opinion, the answer must be in the negative. The•· sub-section contemplates the required number of people working continuously in the factory or other establishment in a year.\n\nSUPREME COURT REPOR11' [1971] SUPP. s.c.1..\n\nThe other passage occurs a little lower down in that judgment : -\n\n\"Section 19-A also seems to strengthen our view. A doubt as to the number of persons employed in an establishment could arise only if the employment of twenty persons in the establishment were a nonnal feature.\n\nA legitimate doubt cannot be said to arise if the condition as to the number is satisfied if twenty persons work in the establishment even for a day or two.\n\nIt is not necessary for us to Jabour this point any further as we feel that the provisions of the Act are inapplicable to establishments which do not employ twenty or more persons to work therein for a period of one year.\n\nIt follows that 'casual labour' falls outside the scope of section 1(3).\n\nThe fact that the casual labour is engaged by or through a contractor docs not make any different for the decision of the question, the only criterion being whether they were casual labourers or not.\n\nOn this discussion, it follows that the establishments whose employees do not come upto twenty, excluding casual labourers, do not fall within the purview of Section 1(3' and so the provisions of the Scheme cannot be applied to them.\n\nThe respondents will, therefore, examine this question in the light of these observations and decide whether the Scheme should be applied to any of these establishments excluding casual labour.\"\n\nThe appellant's learned counsel had at one stage of his arguments stated that his client was anxious merely to steer clear of the observations made by the High Court that \"the provisions of the Act are inapplicable to establishments which do not employ 20 or more persons to work therein for a period of one year.\" But while citing certain decided cases he did appear to canvas for the wide proposition that employment of a person for however short a period would be employment for the purpose of determining the number of persons employed as contemplated by Section 1 (3) (a) and (b) of the Act.\n\nHe relied on the Bench decision of the Madras High Court reported as Messrs East India .Industries (Madras) v. Regional P. F. Commissioner(') (this decision was also cited in the High Court as an unrep1>rted judgment) and pressed us to uphold the reasoning adopted therein.\n\nThe question requiring our detennination is a very short one.\n\nAs there is no representation on behalf of the respondent in this Court and, therefore, we do not have the benefit of the respondent's point of view we propose to confine ourselves strictly to the\n\n(I) [1964) I L. L. 1. 441\n\nP. F. COMMA. f. HARIHARAN (Dua, J.)\n\nlimited question of the scope of clauses (a) and (b) of sub-section\n\n(3) of Section 1 and this judgment is not intended to be considered as expressing any opinion on other controversial aspects. Before considering the relevant provisions of the Act it may be pointed out that according to the respondent's writ petition presented in the High Court in August, 1963, the New Cochin Cafe (treated as a hotel) was started in Ongole town on November 20, 1956 and the respondent usually employed only 18 or 19 persons.\n\nIn 1961 there was total failure of rains in the Ongole region and that town was particularly hard hit.\n\nThe respondent had to employ two or three persons on contract basis for supplying water to the hotel.\n\nThose persons were engaged from June to September, 1961. The appellant has not questioned the correctness of these assertions for the purpose of this appeal.\n\nLet us now examine the relevant provisions of the Act.\n\nThe Act was brought on the statute book for providing for the institution of provident fund for the employees in factories and other estliblisliments.\n\nThe basic purpose of providing for provident funds appears to be to make provision for the future of the industrial worker after his retirement or for his dependants in case of his early death.\n\nTo achieve this ultimate object the Act is designed to cultivate among the workers a spirit of saving something regularly, and also to encourage stabilisation of a steady labour force in the industrial centres.\n\nThis Act has since its initial enactment been amended several times to extend its scope for the benefit of industrial workers.\n\nWe are, however, concerned with the Act as it stood in 1962 when notice was sent by the appellant to the respondent stating that the provisions of the Act had been made applicable to his establishment.\n\nSections l (3) (a) and (b). 4 and S may now be reproduced :\n\n\"Section 1\n\n(3) Subject to the provisions contained in section 16, it applies.\n\n(a) to every establishment which is a factory engaged in any industry specified in Schedule I and in whiCh twenty or more persons arc employed. and\n\n(b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gaz.cttc, specify in this behalf :\n\nProvided that the Central Government may, after giving not less than two months' notice of its intention so to do, by notification in the Official Gaz.cttc, apply the provisions of this Act to any\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nestablishment employing such number.of persons less than fifty as may be specified in the notification.\"\n\nSub-Section 4\n\n\"Notwithstanding anything contained in sub-section\n\n(3) of this section or sub-section (I) of section 16, where it appears to the Central Government, whether on an application made to it in this behalf or otherwise, that the employer and the majority of employees in relation to any establishment have agreed that the provisions of this Act should be made applicable to the establishment it may by notification in the Official Gazette, apply the pro\"isions o.f this Act to that establishment.\"\n\nSub-Section 5\n\n\"An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty ; Provided that where, for a continuous period of not 111$S than one year the number of persons employed therein has been less than fifteen, the employer in relation to such establishment may cease to give effect to the provisions of this Act and any scheme framed thereunder; with effect from the beginning of the month following the expiry of the said period of one year, but he shall, within one month of the date of such cessation, intimate, by registered post, the fact thereof to such authority as may be specified by appropriate Government in this behalf.\"\n\nThe original Act was applicable to establishments which . were factories engaged in the ix industries specified in Schedule I but as a result of persistent demands for extension of provident fund benefits to all industrial workers, the Act was amended in 1956 by Act 94 of 1956 so as .to enabl, e its extension to other establishments as well. Earlier,. it may be pointed out, it was amended in 1953.\n\nIt is unnecessary to give the details of the various amendments.\n\nWe now turn to the relevant definition clauses contained in Section 2. These definitions are subject to the context providing otherwise.\n\nIn Clause (f) \"employee\" is defined to mean any person who is employed for wages it! any kind of work manual or otherwise . in or in connection with the work of an establishment and whci gets his wages .. directly or indirectly from the employer and includes any person employed by or through a contractor in or in connection with the work of the establishment. Clause\n\nP. F. coMMR. V. l!Allll!AllAN (Dua, J.)\n\n(h) defines \"Fund\" to mean the provident fund established under a Scheme. \"Member\" is defined in Clau, se (j) to mean a member of the Fund and \"Scheme\" is defined in Ciause (I) to mean a scheme framed under the Act. Section 5 provides for the framing of a scheme called the Employes' Provident Fund Scheme by the Central Government. Section 6 makes provision for contribution by the employer and the employee to the Fund. Section 14 provides penalties for evasion of payments under the Act or the Scheme.\n\nSection 16 which excliJdes from the applicability of , the Act establishments belonging to Government or local authority and also infant factories, reads : \"16 .. Act not to apply to establishments belonging to Governmimt or local authority and also to infant industries,:\n\nThis Act shall not apply.-:.\n\n(a) to any establishment registered under the Cooperative Societies Act, 1912, or under any other law for the time being in force in any Stte relating to cooperative societies, employing less than fifty persons and working without the aid of powers; or\n\n(bfto any other establishmentemploying fifty or inort persons or twenty or more; but Jess than fifty,\n\nprSons until the expiry of three years in' the case of the former and five Years in the case of the latter, frmri the date on' which the establishment is, or has been. stt up.\n\nExplaliatiOn.-For the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly' set up merely by reason of a change in its location.\n\n(2)1f the Central Government is of opinion that having regard to the financial position of any class of establishment or other circumstances of the case, it. is necessary or expedient so to do, it may, by notification .in the Official Gazette, and subject to such conditions as may be specified in the notification, exempt that class of establishments from the operation of this. Act for such period as may be specified in the notification.''\n\nSection 17. invests in tile appropriat~ Government power to exempt certain establ.ishments f; I;<>m the opt; rati.on of all .or any of. the provisions of any scheme. Section 19-A .vests in the Central Gov ernment power to remove .difficulties by making necessary. provision or giving directions not inconsistent with the provisions of\n\nSUPRIME COURT RIPORTS\n\n(1971] SUPP. S.C.R.\n\nthe Act.\n\nThe order of the Central Government made under Section 19-A for removing doubts and difficulties is clothed with finality.\n\nThe narrow question which directly arises for our consideration is whether Clause (b) of sution (3) of Section I when it speaks of the establishment employing 20 or more persons means that the person so employed may be employed by the establishment for any purpose whatsoever and for however short a duration or that the employment must be for some minimum period in the establishment.\n\nThe language used in the clause does not give any clear indication.\n\nWe have, therefore, to construe this word in the light of the legislative scheme, the object and purpose of enacting this clause and the ultimate effect of adopting one or the other construction.\n\nThe relevant sections of the statute have already been reproduced.\n\nSection 16 which has already been set out in extenso seems lo us to throw considerable light on the point raised.\n\nIt may be recalled that this section excludes from the applicability of the Act establishments belonging to the Government and to local authorities and infant establishments.\n\nIt is, therefore, obvious that this Act is intended to apply only where an establishment has attained sufficient financial stability and is prosperous enough to\n\nbe able to afford regular contribution provided by the Act. Contribution by the employer is an essential part of the statutory scheme for effectuating the object of inducing the workmen to save something regularly.\n\nThe establishment, therefore, must possess stable financi~I capacity to bear the burden of regular contribution to the Fund under the Act.\n\nIn this connection it may be recalled that by virtue of Section 1 (5) an establishment to which the Act is applied continues to be governed by the Act notwithstanding that the number of persons employed by it at any time falls below the required number.\n\nThis liability to be governed by the Act ceases only if the terms of the Proviso to Section 1(5) are complied with.\n\nThe financial capacity of the establishment to bear the burden must, therefore, have some semblance of a reasonably Jong term stability.\n\nIn other words, the employment of requisite number of persons must be dictated by the normal regular requirement of the establishment reflecting its financial capacity and stability.\n\nIt, therefore, follows from this that the number of persons to be considered to have been employed by an establishment for the purpose of this Act has to be determined by taking into ac!l:ount the general requirements of the establishment for its regulai work which should also have a commercial noxus with its general financial capacity and stability.\n\nThis seems to us to be the correct approach under the statutory scheme.\n\nP. P. coMMR. v. HARltlARAN (Dua, J.)\n\nTo ad:e the hotel because of failure of rains.\n\nThis, according to him, would be a regular employment and the High C'.ourt was wrong in holding to the [1954] s.c.R. toss.\n\n(3) [1961] 2 s.C.R. 537.\n\nMICA INDUSTRIES LTD. F. BIHAll (Htgdt, /.)\n\nalthough there can be no generic difference between a tax and a fee since both are comf>ulsory exactions of money by public autho rities, there is this distinction between them that whereas a tax is imposed for public purposes and requires no consideration to support it, a fee is levied essentially for services rendered and there mnst be an element of quid pro quo between the person who pays it and the public autho1ity that imposes it.\n\nWhile a tax invariably goes into the consolidated fund, a fee is earmarked for the specified services in a fund created for the purpose.\n\nWhether a cess is one or the other would naturally depend on the facts of each case. If in the guise of a fee, the Legislature imposes a tax, it is for the Court on a scrutiny of the scheme of the levy, to determine its real character. The distinction is recognised by the Constitution which while empowering 1the appropriate Legislatures to levy taxes under the Entries in the three lists refers to their power to levy fees in respect of any such matters, except the fees taken in court, and tests have been laid down by this Court for determining the character of an impugned levy.\n\nIn determining whether a levy is a fee the true test must be whether its primary and essential purpose is to render specific services to a specified area or class, it being of no consequence that the State may ultimately and indirectly be benefited by it.\n\nIn H. H. Sudhundra Thirtha Swamlar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore,(') this Court was called upon to consider whether the levy impugned in !hat case could be justified as a fee.\n\nIt upheld . the levy which\n\nwa.~ an annual contribution levied under the amended Section 76(1) of the Madras Religions Endowments Act, 1951 on the ground that those contributions when collected went into a sepa\n\nrate fund and not to the consolidated fund of the State and were earmarked for defraying the expenses for the services rendered.\n\nFurther they were not even payable to the government but pay\n\nable to the Commissioner and were levied not as a tax but only as a fee.\n\nTherein this Court further observed that a fee does nof cease to be of that character merely because there is an element of compulsion in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered.\n\nAbsence of unifor mity is not a criterion on which alone it can be said that the levy is of the nature of a tax.\n\nIn Corporation of Calcutta and anr. v. Liberty Cinema (') the validity of the levy: made under Section 548 (2) of the Calcutta Municipal Act 1951 came up for consideration.\n\nTherein this Court held that the levy in question is not a \"fee and return for 8ervices\" as the Act does not provide for any services of a special\n\nen [t963J Supp. 2 s.c.a. 102. c2> [196512s.c.a.477.\n\nSUPR!ME COIJAT REPORTS\n\n(1971) SUPP. S.C.Rkind being rendered, resuliliig in benefits to the person on whom it is imposed.\n\nSection 527 (43) permits by-laws to be framed for regulating the inspection, supervision and control, among others. of cinema houses ; but it is not obligatory to make such by-laws and therefore, there may be no services to render.\n\nEven the bylaw made provides only for inspection, and the work of inspection done by the appellant was only to see that the terms of the licence were observed by the licensee.\n\nIt was not a service to him, and so, no question arises of correlating the amount of levy to the costs of any service.\n\nThe levy therefore is not a fee and must be tax.\n\nIn Delhi Cloth & General Mills Co. Ltd. v. Chief Commis- .sioner, Delhi and ors .• (') the validity of a levy\" as a fee came up for consideration by this Court.\n\nTherein this Court speaking through Grover, J. (one of us) laid down that in each case when the question arises whether the levy is in the nature of a fee the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff and the nature of the work done by them will have to be examined for the purpose of determining the rendering of the services which would make the levy a fee.\n\nAfter examining the various provisions of the Factories Act, 1948 and the rules framed this Court came to the conclusion that a large number of provisions of the Act, particularly in the Chapters dealing with safety involve a good deal of technical knowledge and in the course of their discharge of duties and obli gations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act.\n\nOn certain occasions the factory owners are bound to receive a good deal of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by bemg warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act.\n\nSimilarly if a building or a machinery or plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or machiLery.\n\nIn that case the High Court found that 60% of the amount of licence fees which were being realised was actually spent on services rendered to the factory owners.\n\nThat finding was accepted by this Court and on the basis of that finding this Court upheld the validity of the levy.\n\nFrom the above discussion it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable correlationship with the services rendered by the Government. In\n\n(1) [1970) 2 S.C.R. 348.\n\nMICA INDUSTRIES LTD. v. BIHAR (Hegde, J.)\n\nother words the levy must be proved to be a quid pro quo for the services rendered.\n\nBut in these matters it will be impossible to have an exact correlationship. The correlationship expected is one of a general character and not as of arithmetical exactitude.\n\nLet us now proceed to consider whether the levy under the impugned rule can be justified as a fee on the basis of the law as enunciated by this Court.\n\nBut before doing so, it is necessary to dispose of one of the grounds on which the High Court upheld the levy.\n\nIn paragraph 8 of the High Court's judgment, it is observed :\n\n\" ...... when a manufacturer wants to keep in his possession large quantity of denatured spirit for manufacuring purposes, he wants a special privilege or concession of immunity from prosecution.\n\nFor that purpose he has to obtain a licence or a pass on payment of requisite fees.\n\nThere is thus a quid pro quo element and the immunity from prosecution is in the nature of a special benefit or privilege.\"\n\nThe implication of this observation is somewhat astounding. These observations imply that the government can barter away its duty to prosecute an offender for consideration.\n\nThe requirement to take a licence is prescribed to safeguard public interest and not as a source to gather revenue.\n\nWhat is made punishable is either a person's failure to take the required licence cf ore the Di!l'rit Court.\n\nThe respondent also filed ctoss-ob1ect1ons.\n\nThe District Court disnnMed the appellant's appeal and allowed the cross-objections with the result that the appellant's suit was dismissed. A second\n\nappeaf filed' by the apj>ellant in the High Court was heard by a Single Judge \"1116 lield that the said lease was a permanent lease-, that tlie appellant bad atquired the said strip of lllnd' as acces-;\n\nSioli to the ll!Ued lllltil Bild 81' a c:e ot tboee fuxlinfl\n\nSUPRBME COURT REPORTS [1971] SUPP. s.c.R.\n\ngranted a mandatory injunction directing removal of any con struction or projection by the respondent over the said strip of land. In v'iew of his finding that the said strip of land had always been in the possession of the appellant and earlier. of his father ever-since 1906 and thus had been acquired as an accession, he considered it unnecessary to go into the question of easementary rights claimed by the appellant. The principal ground on which the Single Judge founded his judgment was that the lease was both transferable and heritable, and therefore, had to be held as a permanent lease.\n\nAggrieved by the judgment and decree passed by the learn ed Single Judge, the respondent filed a letters patent appeal where in three principal questions were canvassed ; (I) whether the said lease was a permanent lease, (2) whether the strip of land in dispute was covered by the said lease, or in the alternative, acquired as accession, and (3) in the alternative, whether the appellant had acquired easementary rights over the said strip of land (a) of light and air, (b) of passage and (c) of draining water, both waste and rain, over the said strip of land. The Letters Patent Bench ans wered all the three questions against the appellant holding that the said lease being a lase for building purposes and transferable, was a lease for an indefinite period, and therefore, for the life time of the lessee, the said Dhanji, that the said strip of land was neither covered under the said lease, nor acquired as accession through adverse possession, and lastly, that except for the drain extending upto 32 ft. constructed on the said strip of land, the appellant had not acquired any other easementary rights over it.\n\nAs to light and air, the Bench held that the appellant failed to establish that the obstruction caused by the respondent's construction was such as to give him an actionable claim against the respondent. The result was that except for the said drain, the Bench dismissed the appellant's suit.\n\nMr. Desai for the appellant raised three contentions in support of the appeal ; (!) that on a proper interpretation of the document of lease, the lease was a permanent lease, (2) that there was an accession in respect of the said strip of land within the mean ing of s. 108(d) of the Transfer of PTDperty Act, 1882, and therefore, the said strip of land must be deemed to be comprised in the lease, and (3) that the appellant had acquired by prescription rights of easement of light and air, of throwing rain water and draining waste water through the said drain and of passage over the said strip of land under s. 15 of the Easements Act, 1882.\n\nOn the question of interpretation of the document of lease, Mr. Desai supported the view taken by the Single Judge. The learned Single 1 udge construed the document to mean (a) that the lease was for building purposes, (b) that i:t was in the first\n\nCHAPSIBHAI v. PURUSHOTTAM (Shelat, J.)\n\ninstance for 30 years certain, (c) that the lessee was to continue to enjoy all rights as a lessee even after the expiry of 30 years, and (d) that the lesser could not increase the rent even after the expiry of 30 years. The most important term of the said lease. said the Single Judge, was \"tb.e one which provides for the leasehold right continuing to the heirs and successors\". The Letter Patent Bench, however, felt that on a proper construction of the document, the lease was for an indefinite period, and though transferable, did not provide for any hereditary rights. In support of that conclusion the Bench pointed out that the view consistently taken by the High Court of Bombay, right from the decision in Vaman Shripad v. Maki,(') was that such a lease is to be construed as one for the lifetime of the lessee and not as a permanent lease. The only solitary case where a lease for an indefinite period was construed as permanent was that in Sonabai v. lliragavri, (') but subsequent decisions of that High Court had dissented from th.at decfa'ion and had consistently held leases for indefinite periods as leases for the lifetime of the lessee. (see Donkangonda v. Re., anshiddappa ('). In Bavasaheb v.\n\nWest Patent Co.(') Sonabai's case (~ was once again dissented from, the High Court reiterating that a lease for an indefinite period is ordinarily to be construed as one for the lifetime of the lessee and that a distinction should be made between a transferable and a heritable lease. The High Court there observed (!) that if a lease were to be for a definite period and before that period was over, the lessee died, the leasehold rights during the remainder of the period would enure for the benefit of his heirs, unless the document slipulated that in such an event the rights of the lessee were not to enure for the benefit of his successors, (2) that if the lease was for an indefinite period, it would not enure for the benefit of the lessee's heirs. Such a lease would usually be for the lifetime of the lessee himself unless it clearly appeared from the contract that the benefit of the lease was intended to accrue to the lessee's successors. Whether a lease was permanent or for the lifetime only of the lessee, even where it was for building structures and was transferable, depended upon the terms of the lease and tb.e Court must, therefore, look at the substance of it to ascertain whether the parties intended it to be a permanent lease. But the fact that the lease provided that the lessee could continue in possession of the property so long as he paid the stipulated rent did not mean that the lease was for perpetuity. Jt would usually be regarded as a lease for an indefinite period. and as such for the lessee's lifetime.\n\nThe High Court also pointed out that the fact lhat tenancy rights were transferable, as provided\n\n(I) I.L.R. 4 Bom. 424.\n\n(3) 4SBom. L. R. 194.\n\n(2) 28 Bom. L.R. ss2.\n\n(4) S6Bom.L.R.6\\.\n\nSUPIUl/dll COmlT llBPORTS [1971] SUPP. s.c.R.\n\nby s. 108.(j) of the Transfer of Property Act, did not mean that t)J.ey were also heritable.\n\nIn two of its decisions, Runge Lall Lobes v. Wilson(') and Promada Nath Roy v. S. Chowdhry (') the Calc1dta High Court took the view that where the purpose of the lease was for con structing buildings, the court could presume, even though the document did not in terms so provide, that the lease was intended to be permanent. To the same efl'.ect was also the decisiOn in Nava/ram v. Javerilal.(').\n\nOn the other hand in Lekhraj Roy v.\n\nKunhya Singh(') where the lease was for the period of the continuance of the lessors' mokurruri, the Privy Council held that if it could be ascertained what the term was. the rule of construc tion that a grant of an indefinite nature enured for the lifetime of the grantee would not apply. But, if the grant was made to a person for an indefinite period, it enured, generally speaking, for his lifetime and passed no interest to his heirs unless there were words showing an intention to grant a hereditary interest In Abdul Rahim v. Sarafalli ('} the Bombay High Court adhered to the view consistently taken -by it that the lease there was for the lessee's lifetime. The lease there contained terlns similar to those before us. It was for building a factory and although it provided for 25 years certain in the first instance it also provided that after the expiry of that period the lessee would continue to take the agreed rent so long as the lessee remained in possession and further provided for the lessee's right to remove the factory when he decided to hand over the land to the lessor.\n\nThe conflict of opinion amongst these decisions has since then been resolved by the decision in Bavasaheb's case(') having been expressly approved by this Court in Sivavogeswara Cotton Press v. Panchaksharappa (') The lease here was for building factories and other structures and was for a period of 20 years certain. It, however, provided that the lessee could continue to remain in possession so long as he desired and observed the terms of the lease which provided for a higher rent for the first 10 years after the expiration of the said 20 years and a still higher rent thereafter. Cl. 04) of the lease in addition provided that it was to be binding \"on me, my heirs, executors, administrators, successors and assigns, as well as on your heirs, executors, administrators, successors and assigns ...... \". The question was as to the\n\n(I} [18991 I.LR. 26 Cal. 204.\n\n(2) [1905] T.L.R. 32 Cal. 648.\n\n(3) 7 Bom. L. R. 401.\n\n(4) [1876-77] L. R. 41. A. 22;.\n\n(5) 30 Bom. L. R. 1596.\n\n(6) S& Bom. Ii. R. 61.\n\n(7) [1962] 3 S. C. R. 876.\n\nCllAPSIBHAI V. PUI\\USHOTIAM (Slit/at, J.)\n\nnature of the lease. At page 885 of the report, the Court remark ed that cl. (14) was a very important clause \"which though coming as the last clause must govern all the stipulations between the parties. Thus the terms and conditions of the lease which created the rights and obligations between the lessor and the lessee were specifically declared to be binding on the heirs and successors-ininterest of the lessor and the lessee\". The Court then examined various decisions of the different High Courts including Nava/- ram's case (1) Promada Nath Roy's case (') and lastly, Bavasaheb's case ('). As to !he last case, the Court at page 889 of the report expressed its \"complete agreement\" with the observations of Gajendragadkar, J. (as he then was). namely, that the nature of the tenancy created by a document must be determined by construing the document as a whc :e, that if the tenancy is for building purposes, prima facie it might be arguable that it was intended for the life-time of the lessee or might in certain cases be even a permanent lease, and lastly, that whether it was a tenancy for life or a permanent tenancy must ultimately depend upon the terms of the contract itself. As can be seen from an earlier passage on that very same page, the Court distinguished Bavasaheb's (') case on the ground . that the lease there did not contain a provision similar to cl. (14) in the case before it. Besides, the Court sought an additional support for its conclusion that' the lease was permanent in the provision which stipulated that the rent would be Rs. 350 a year for the first 10 years, Rs. 400 /- for the next 10 years and Rs. 500 /- thereafter until the lessee continued to occupy the land, which provision indicated that the lease was not intended to be only for the life-time of the Jessee.\n\nIt is cleac from the decision that what clearly weighed with the Court was the fact that the document of lease distinctly indicated that the parties intended that the rights under the lease were to be hereditary. The question, therefore, is whether the lease under consideration is of the type in the case of Sivayogeswara Cotton Press.(').\n\nLooking at the document (Ex. P-4) as a whole, the leiise undoubtedly is for building a residential structure. Though it is for 30 years certain, the lessee was entitled to remain in possession of the land so long as he paid the stipulated rent, which the lesr was not entitled to increase. But, though the lease is for building structure and the period is indefinite there are at any rate no\n\n(I) 7 Jlolll. J,.R. 401.\n\n(2) [1905] I.t •• R. 32 Cal. 648. m S6 Bon!. L.R.. 61.\n\n(4) [t962J 3 s.c.R. s76.\n\n34.\n\nSUPREME COURT REPORTS .[1971] SUPP. s.c.R.\n\nexpress words indicating that the leasehold rights thereunder were intended to be heritable. On the other hand, it expressly provides, as was the case in Abdul Rehim(1) for the right of the lessee to remove the structures, meaning thereby vacating the land, if he so desired. The clause providing for such removal is not that the lessee would remove the structures on default in payment of rent, but depends on his own volition, a clause indicative of the parties not having intended the lease \\o be permanent. For, if it was intended to be permanent, there was no necessity for providing such a right. But the argument was that there are words In the document indicative of the lease having been intended to be heritable as was the case in Sivayogeswara Cotton Press(').\n\nThe mere fact, however, that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that it is a permanent lease. Such a provision can be made in two ways resulting in two different consequences. A lease may provide a fixed period and then include a provision that in the event of the Jessee dying before the expirY of such period, his heirs would be entitled to have the benefit of he lease for the remainder of the period. In such a case, although. the lease may provide for the heirs to succeed to the interests in the leased land, it would only mean that such heirs succeed to the rights upto the expiry of the lease period. If the lease, on the other hand, were for an indefinite period, and contains a provision fo1 the rights thereunder being heritable, then such a lease, though ordinarily for the lifetime of the lessee, would be construed as permanent. The question, therefore, is to which of these two classes of leases the present lease belongs.\n\nAfter reciting the purpose for which it was made, the term of 30 years and the rent, the deed provides :\n\n\"Even after the prescribed time limit. I shall have a right to keep my structure on the leased out land, so long as I like, and I shall be paying to you the rent every year as stated above.\"\n\nThough the period is 30 years, th.is part of the document would make the lease for an indefinite period which would ordinarily mean a lease for the lifetime of the lessee. What follows then, however, gives scope for the argument that it Is not merely for the lifetime of the lessee :\n\n\"You will have no right to increase the rent and I shall also not pay it, myself and my heirs shall also not pay It, myself and my heirs shall use this land in whatever manner we please. After the lease period, we\n\n(I) 30 Bom. L.R. 1596.\n\n(2) [1962) 3 S.C.R. 87~\n\nCHAPSIBHAI ~. PURUSHO'ITAM (She/at, J.) 341\n\nshall, if we like, remove our building right from the A foundatiqn and vacate your land. In case we remove our structure before the stipulated period, we. .. shall be liable to pay to you, the rent for all the thirty years, as agreed to above.\"\n\nAnd further : B\n\n\"In case I were to sell away the buildings, which I shall be constructing on the above land, to anyone else, then, the purchaser shall be bound by all the terms in this lease deed.\"\n\nThis part of the document undoubtedly gives the lessee the right to transfer by sale the leasehold interest. But, as already stated, a clause enabling the leasehold interest to be transferred does not render sucb interest heritable.\n\nThe effect of these clauses is that the first part of the document ensures that the lessor cannot charge rent higher than the .agreed rent even if the lessee were to remain in possession after the period of 30 years. That part is conSistent with the lease being for an indefinite 11eriod, wnJch means for the lifetime of the lessee. The next part provides for the right to remove the -structures \"after the lease period\". The words \"after the lease\n\nperiod\" mean either at the end of the 30 years, or on the death of the lessee, because, it also says that if the lessee were to remove the buildings before the expiry of 30 years, he would have to pay the rent for the remainder of that period. This part of the document does not show the intention that the lease was to be a permanent lease.\n\nIt merely ensures the right to remove the -structures if the lessee or his heirs so desired on the expiry of the lease period, i.e., either at the end of 30 years, or after the lifetime of the lessee. The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period and continuing to occupy the land. In the event of the first contingency, the lessee's heirs would continue in possession till the expiry of 30 years and then remove the structures if they wished.\n\nIn the case of the second contingency, the heirs of the lessee would have the right to remove the structures on the deatb of the lessee. In either event the right provided for is the right to remove the structures. It is not a provision for the lease being heritable and its being consequently a permanent lease.\n\nThus, the lease is for a period certain, i.e., 30 years and on the expiry of that period if the lessee still were to continue to pay the rent, for his lifetime. In the event of bis dying before that period, the benefit of the lease would enure to bis heirs till the completion of 30 years. They would be entitled to remove the structures either\n\nSUP&EMB COURT RBPORTS [1971] SUPP. s.c.11..\n\nat the end of the 30 years if the Jessee were to die before the expiry of that period or at the end of the Jessee's life were he to continue to be in possession of the leased property after the expiry of 30 years. But the lease did not create hereditary rights so that on the death of the Jessee his heirs could sue<; eed to them.\n\nIn this connection it is necessary to note that; as translated in English, it would appear as if the document uses the pronoun 'I', meaning as if the Jessee, in the earlier part and the pronoun \"we\", meaning the lessee and his lieirs, in the latter part. Such a translation, however, is not correct.\n\nWe ascertained from Mr. Ratnaparkhl who after looking at the original Marathi assur\n\ned us that the pronoun used throughout is ami, which means \"we\". a term often used in documents written in regional language for the executant instead of the singular 'I'.\n\nIn our view the lease before us is clearly distinguishable from that in the case of Sivayogeswara Cotton Press(') where the leasehold rights were in clear terms made heritable and where the Court held that cl. 04), though placed last in the document, governed all its terms. There is no provision in the present case comparable with such a clause. The lease was undoubtedly for an indefinite period which only means that it was to enure for the lessee's lifetime. Reference in it of the heirs of the lessee is. only for the limited purposes set out earlier and not for making the leasehold interests heritable. We do not find in the document words such as those in Sivayogeswara Cotton Press (') would compel us to the conclusion that the lease was intended to be permanent.\n\nThat leads us to the second contention of Mr. Desai. Under s. 108(d) of the Transfer of Property Act, if any accession is made to the leased property during the continuance of a .lease, such accession is deemed to be comprised in the lease. If the accession is by encroachment by the lessee, and the Jessee acquires title thereto by prescription, he must surrender such accession together W'ith the leased land to the lessor at the expiry of the term.\n\nThe presumption is that the land so encroached upon is added to the tenure and forms part thereof for the benefit of the tenant so long as the lease continues and afterwards for the benefit of the landlord. The plea of the appellant in the plaint in regard to an accession was vague and confused. Para 2 of the plaint simply stated that the said strip of land was part of plot No. 93, but was used by the appellant as a passage. Para 7 (a) of the plaint, however, used the words \"accession to the leasehold rights of tjie plaintiff in respect of the nazu/ plot No. 94\", but did not say that suchi\n\n. 94, with the result that (a) the eaves of tha.t building projected over plot No. 93 by about 2! ft., that its windows on that side opened on plot No. 93 and a drain was constructed by the side of the appellant's western boundary through which waste water flowed from that building. According to the appellant's case, the said strip of land, which without doubt forms part of plot No. 93, was used by the appellant as a passage for going to a well situate in plot No. 93. Plot No. 93, however, was an open plot until recently, except for a small structure on its northern side, so that there was no definite or well marked passage which was used by the appellant in order to reach the said well. The projection of the eaves or the opening of the windows on to the said strip of land were not asserted as acts of adverse possession or encroachment but as easementary rights. The appellant did not claim any right to the said well as admittedly the use of the said well for drawing water was with the consent of the lessor. Therefore, the use of the passage for going to the well would be incidental to the permissive use of the said well.\n\nAs regards the drain, the appellant's evidence was that it passed partially through the said strip of land.\n\nOriginally a kachha drain, it was made pucca upto a distance of 32 ft. in 1923.\n\nNo width of it, however, was shown. Obviously, there can, therefore, be no adverse possession over the whole of the 4 ft. wide strip of land.\n\nThe Letters Patent Bench has pointed out three circumstances as emerging from the evidence wllich clearly negative the case of accession by adverse possession : (!) that the original plot was given two numbers, 94 and 93 in 1929, plot No. 93 being shown as commencing from the western wall of the appellant's building,\n\n(2) that no protest was ever made against such a demarcation by the appellant or his father, and (3) a clear admission by the appellant in cross-examination that according to him the said strip of land was covered by the lease dee4 and was not an acquisition over and above the leased land Ul)der that deed.\n\nParties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. But at the stage of the evidence, no serious attempt was made by the appellant to establish accession by adverse possession. On the contrary, the appel-\n\n34T\n\n.348\n\nSUPREME COURT REPORTii [1971] SUPP. s.c.R .\n\nlant sought to make out a case of easementary rights by prescrip tion, a case incompatible with the claim of adverse possession where a party claims title over the land of another as his own and therefore there would be no dominant tenement claiming a righ.t by prescription over a servient tenement. In this state of the evidence the Letters Patent Bench, in our judgment, was right in rejecting the claim of accession which the learned Single Judge had erroneously accepted.\n\nAs regards the appellant's claim to the easementary rights, assuming that a lessee can claim such rights over an adjacent property belonging to his lessor, s. 15 of the Easements Act requires that the access and use, on the basis of which an easement is claimed, must be as and by way of easement and without interrup tlon for a period of 20 years. The enjoyment must be, in other words, as of right and not permissive either under a licence or an agreement. In Abdul Rashid v. Brahman Saran(1) a Full Bench of the Allahabad High Court held, on the principle embodied in s. 12, that the possession of a tenant being in law the possession of his landlord, the tenant cannot acquire by prescription an easement in favour of his holding except on behalf of his landlord.\n\nThe Full Bench, however, made a distinction between an easementary right of way and an easementary right of light and air mentioned in the first two paragraphs of s. 15, and held that though a lessee of land, who is the owner of the building on such land, ;:annot acquire by prescription an easement of a right of way or one to flow water over another land of the lessor, so far as the use of light and air or support for his building is concerned he is the owner of the building and may under the first two para graphs of s. 15 acquire such easements as he would not acquire them for any one except himself under s. 12. Th.is decision was followed in Haji Abdulla Barron v. Municipal Corporation,\n\nKarachi(~. But in Ambaram v. Budhalal(') the High Court of Bombay differed from the Allahabad High Court holding that the distinction in English law arising from the language of ss. 2 and 3 of the Prescription Act, 1832 between an easement of light and air on the one hand and of easement of way on the other, did not hold good under the Easements Act as no such distinction is made in ss. 4 and 12 of the Act, that it is under s. 12 that an easement is acquired and not under s. 15 which provides for not the persons who can acquire easementary rights but the method by which they can be acquired, and therefore, the principle laid down in ss. 4 and 12 would apply, namely, that if the lessee acquires a right to light and air, he does so on behalf of the owner and therefore he cannot acquire it on behalf of the owner\n\n(I) J.L.R. [1938] All. 538.\n\n(2) A.I.R. 1939 Sind 39.\n\n(3) [1943] l.L.R. B~.n. 690.\n\nCHAPSIBHAI v. PURUSHOTTAM (She/at, J.) 3'9\n\nas against such owner. There is th.us clearly a conflict of view A between the two High Courts. It is, however, not necessary to resolve this conflict in this case as the question of easements in the present case can be disposed of in another way.\n\nCh. IV of the Act deals with the disturbance of easements and s. 33 therein provides that the owner of any interest in the dominant heritage or the occupier of such heritage maiy institute a suit for the disturbance of the easement provided that the disturbance has actually caused substantial damage to the plaintiff.\n\nUnder Explanation II read with Explanation I to the section, where the disturbance pertains to the right of free passage of light passing through ihe openings to the house, no damage is substantial unless the interference materially diminishes the value of the dominant heritage. Where the disturbance is to the right of the free passage of air, damage is substantial if it interferes materially with the physical comfort of the plaintiff. In Rayachand v. Maniklal (1)' it was held that an easement by prescription under ss. 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man's property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the right. Therefore, if the owner of a dominant tenement has, during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement. As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a rtght of easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. To prove the latter, it is necessary to establish that it was exercised on some one else's property and not as an incident of his own ownership of that property. For that purpose, his consciousness that he was exercising that right on the property treating it as someone else's property is a necessary ingredient in proof of the establishment of that right as an easement.\n\nIn his evidence, the appellant did not claim the right of passage or of light and air or of draining his waste and rain water over the said strip of land as rights over the respondent's property.\n\nOn the contrary, he made it clear that the said strip of land fell\n\n(1} l.L.R. 1946 Born. 184 (F.B.)\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nunder the document of lease. \"I have a right on both the properties under the lease dead itself\", he declared in his evidence, and\n\nadded, \"whatever rights I have acquired are under the lease deed itself and not afterwards\". His claim that the strip of land was included in the leased land could not succeed because he had to admit that although two different municipal numbers, 94 and 93. were given as early as 1929 to the portions of the land, 94 to the portion under his possession, and 93 to that under the possession of the respondent, no complaint was ever made to the municipality or any other authority that the strip of land which he claimed to be covered under the lease should be included in his plot, namely, No. 94. In 1940, and again in 1955, when transfer deeds in respect of plot No. 94 were executed by hi'm, the area mentioned therein was described as measunng 5182 sq. ft., which would not include the strip of land fonning part of plot No. 93. Having thus failed in his claim that the said strip of land was acquired either as accession or as one covered by the lease deed, he could not tum round and successfuly claim that he had during the requisite period exercised rights over it on the footing of an owner of a dominant tenement exercising those rights over a servient tenement of another.\n\nAssuming, however, that the said strip of land was used by him all a passage, the evidence clearly showed that it was pennissive. There was evidence of a permission having been asked for from the respondent's father by the appellant for installing a handpump over the respondent's well in plot No. 93. If the appellant. and previously his father, were pennitted to draw water from that well, the use of the well for drawing water and. of the strip of land as a passage for going to the well was clearly pennissive and not as an open hostile use over the lessor's property. The appellant himself admitted that his father had taken a portion of plot No. 93 on lease paying separate rent therefor at Rs.45/- a year, and had put up thereon a tln-shed which stood there from 1935 to 1941.\n\nIt is clear that the strip of land was allowed to be used as a passage both to the well and the said tin-shed. He admitted two letters, dated September 30, 1958 and December 4, 1959, having been written by him to the respondent both relating to rent due by him in respect of the sa_id land on which the said tin-shed stood. On these facts it is impossible to sustain the right of passage over the said strip of land as an easementary right by prescription for a continuous period of 20 years.\n\nAs to the light and air through the windows on the western side, it is clear from Explanations II and III to s. 33 that to constitute an actionable obstruction of free passage of light or air to the openings in a house it is not enough that the light or air Is Jess than before. There must be a substantial privation of light. enough to render the occupation of the house uncomfortable,\n\nCHAPSIBllAI v. PURUSllOTTAM lShelat, J.) 351\n\naccording to the ordinary notions of mankind. See Coils v. Home and Colonial Stores('\\.\n\nThe plan produced in evidence shows that the central part <>f the appellant's building has five windows on the ground floor, :five in addition to one smaller window on the first floor and four\n\n<>n the second floor. All these windows are in the rear side of the building and open out on to the said strip of land.\n\nThere can be no doubt and the plan shows clearly tbat as a consequence of construction by the respondent, there would be a deprivation, partially though it would be, of light and air previously enjoyed by the appellant through these windows, especially as they are on the western side. On the ground floor, all the five windows are affected. On the first floor, only three windows are affected, and that too partially. On the second floor, none of the four windows is affected at all. Thus, so far as the ground and first floors are concerned, the appellant would not have the same amount of light and air as before. But the evidence shows that there are openings, doors and windows, on each of these floors\n\non the front side, i.e., on the eastern side. There was some evidence also that the ground floor bad so far been used as a godown or a store room, though the appellant asserted that he had been using it also as a living room. No attempt, however, was made on behalf of the appellant to establish that the obstruction caused by the respondent's construction had been such as to amount to a substantial privation, so as to render occupation of the house by him uncomfortable. In the absence of such proof he was rightly nonsuited by the High Court.\n\nAs regards the drain, we say nothing, as part of the appellant's claim in regard to it has been allowed by the High Court and theie are no cros!Hlbjections against it by the respondent.\n\nIn the view that we talce, the appellant cannot succeed on any one of the three questions raised by his counsel. The appeal, therefore, fails and has to be dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.\n\n(I) [1904] A.C. 179.", "total_entities": 45, "entities": [{"text": "CHAPSIBHAI DHANllBHAI DANAD", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "CHAPSIBHAI DHANJIBHAI DANAD", "offset_not_found": false}}, {"text": "PURUSHOITAM", "label": "RESPONDENT", "start_char": 29, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "PURUSHOTTAM", "offset_not_found": false}}, {"text": "I. D. DUA, JJ", "label": "JUDGE", "start_char": 76, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "I.D. 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M. S!KRI, C. J., G. K. MITIBK, K. S. HBGDE, A. N. GKOVE!t\n\nAND P. JAGANMOHAN REDDY, JJ.]\n\nCivil Service-Orissa-Age of superannuation raised from 55 to 58 years by Government resolution dated May 21, 1963-liberalised Pension Rules did not have effect that employee should have put in 30 years' rervice before be could be retired at 55-Guidlines ti> Heads of the Departments mentioning inter alia that an officer lacking i'}-tegrity may be retired ut 55-- This did not cast stigma on every officer who was retired at 55-Artic/e 311(2) of Constitution not attracted.\n\nThe appellant who was born on January 1,1910 entered the service of the former Indian State of Mayurbhanj in Orissa as an engineer on 1st November 1937. On the merger of that State with the Province of Orissa on January 1, 1949 he became an officer of the said province. The age of superannuation of Government employees in Orissa was then 55 years.\n\nOn May 21, 1963 tho Government of Orissa passed a resolution raising the ago of compulsory retirement to 58 years with effect from Decen1ber 1, 1962. The power of Government to retire an employee at the age of 55 years was however retained and so was the right of the employee to voluntarily retire at that age after giving reqU.isite notice. The resolution aforesaid also stated that the above provision will be jn '\\ddition to the provisions already contained in the Liberalised Pension Rules ac .. cording to which Government could compulsorily retire an employee who had put in 30 years service, the employee also having a corresponding right to retire after the said period of service. On February 5, 1954 a notification was issued by the Government of Orissa laying down inter alia that in any cae where Government had reasonable cause to believe that employee lacked integrity it would be appropriate to determine upon his retirement. On July 14, 1964 the appellant was asked to retire from Government service with effect from January 1, 1965. His representation for reconsideration was not accbpted. His writ petition in the High Court was rejected. By certificate tho appellant came to this Court contending (i) that in view ot the Liberalised Pension Rules he could not be retired before he had completed 30 years of service, and (ii) that having regard to the crittria laid down by th, e notification dated February 5, 1964 the order. of retirement cast a stigma on him and as such was violative of Arl 311 of the Constitution.\n\nHELD: (1) Before May 21, 1963 an employee of the Government of Orissa would have been due for superannuation When he attained the age of SS years whether he bad or had not put in thirty years qualifying service.\n\nGovernment bad before the said date an option to ask him to reti!\"e if be bad completed 30 years qualifying service even though he had not reached the age of fifty five years; correspondingly the officer had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years' qualifying service to his credit. The resolution of May 21. 1963 taiscd the age of superannuttion from SS to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age of SS years without assignina\n\nBATA~ARI .. ORISSA (Miller, J.)\n\naoy reason. Correspondinaly the employee was not bound to continue in service beyond the age of filly years unless he wanled it. There was n.o alteration in the rule under which a Government servant could voluntari ly retire or be asked to retire in a case when he had completed thirty years' service. In other words, the ria:ht of Government to require an officer lC\\\n\nretire af any time after he had completed 30 years' service was and still remained intact. This right which was not linked with the age of super annuation before May 1963 remained unaffected even after that date. Al! tbou1h the aae of superannualion was raised from 55 to 58 years Govern ment armed itself with the power to require any employee to retire when he attained lhe aae of 55 years without assi1nin1 any reason. The peti tioncr's araument based on the fact that he had not completed 30 years' of service, must therefore, fail. [355H-356E) ·\n\n(ii) Slnce the aae of superannualion fixed was nol unaccounlably early there was no violalion of Art. 311(2). [3580)\n\nGurdt• Singh Sidh11 v. Stale of P11njab, [1964)\n\n7 S.C.R. 587, 593.\n\nSalish Chandra Anand v. Union of India, [1953) S.C.R .. 665 and Moti Ram Deka etc. v. General Manager. North East Frontier Rly. [1964) 5 S.C.R. 683, discussed.\n\n(iii) Nor was Art. 311 attracted by any aspersion or stigma cast on\n\nlhe appellant by the order daled July 14, 1964. Under paragraph 3 of Jhe D resolution of May 21, 1963 the Government had a ri&ht to require aoy Government servant ta retire at the age of 55 without assigning any rcasor...\n\nThe facl thatby notification of 51h February 1964 cerlain guidelines were indicated to the Heads of Departments in_ Considering whether a Govern .. mcnt servant should coninue in service beyond the age of SS years, one of the factors being lack Of integrity, did not imply that any officer who'ie continuance in service was not advised lacked integrity.\n\nOn the facts of the case it could not be said that any aspersion was cast -on thC appellant.\n\n[358F-G)\n\nThe appeal musl accordingly be dismissed.\n\nOVIL APPELLATE JURISDICTION : Civil Appeal No. 1064 of 1967.\n\nAppeal from the judgment and order dated September 19, 1966 of the Orissa High Court In Original Jurisdiction Case No. 208 of 1964.\n\nS. V. Gupte, and B. P. Maheshwari, for the appellant.\n\nR. Gopalakrishnan and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nMitter, J.-This is an appeal from a judgment of tbr.\n\nHih Court of Orissa rejecting a Writ Petition filed by the appellant for quashing the order of tbe Government passed on him on July 14, 1964 informing him that he was to retire from Government service on !st January, 1965 when he would reach the age of 55 years. 23--1 S.C. lndia/71\n\n35.4\n\nSUPRBMB COURT REPORTII [1971] SUPP. s.c.R.\n\nThe facts are shortly as follows.\n\nThe appellant who was born on January I, 1910 entered the service of the former Indian\n\nState of Mayurbhanj in Orissa as an engineer on !st November\n\n1937. He was in the employment of that State up to December 31, 1948. On the merger of that State with the Province of Orissa on January I, 1949 he became an officer of the said Province.\n\nThe age of superannuation of Government employees in Ori8sa was then 55 years. On May 21, 1963 the Government of Orissa passed a resolution the relevant portion whereof ran as follows :- . . \"I. The question of raising the age of compulsory retirement of the State Government employees has been under the consideration of Government for some time past. . . .\n\n2. After careful consideration, Government have now decided that the age of compulsory retirement for the State Government employees should be raised from 55 years to 58 years with effect from J.12-1962. . .\n\n3. Notwithstanding anything contained in the pre,. ceding paragraph, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' previous notice in writing without assigning any reason. The Government servants also may after attaining the age of 55 years, voluntarily retire by giving three months' notice to the appointing authority. The powers to retjre a Government servant under this provision will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years.\n\n4. This provision will be in addition to the provisions already contained in rule 2 in section I of the Liberalised Pension Rules issued with the Finance Department Resolution. . .according to which :\n\n(a) the Government may require an officer to retire any time after he has completed 30 years qualifying service by giving him a notice in writing at least three months before the date on which be required to retire, and\n\n(b) a Government servant may retire from service any time after completing 30 years qualifying service by giV'ing a notice in writing to the appropriate authority at least three months before the date on which be wishes to retire.\"\n\nOn February 5, 1964 a notification was issued b¥ the Government of Orissa in connection with the above laymg down the\n\nBATAH.Alll v. ORISSA (Mitter, J.)\n\ncriteria and procedure to be adopted to ensure uniformity of ope ration of the rule mentioned in paragraph 3 of the above resolution and also equitable treatment in all cases. Speaking broadly, the idea behind the notification was that (l) the service record of an officer was to be scrutinised six months before he was due to attain the age of fifty five years, (2) in any case where Government had reasonable cause to believe that he lacked in integrity it would be appropriate to determine upon his retirement, (3) where an officer's integrity was not in doubt but his physical or mental condition was such as to make him inefficient for further service the same result would follow, and (4) an officer whose performance was considered as below \"average\" should not be allowed to work after the age of 55.\n\nOn July 14, 1964 the appellant was asked to retire from Government service on !st January, 1965. His representation for reconsideration was not accepted. He filed a Writ Petition in the High Court on December 21, 1964. This was rejected by the High Court on September 19, 1966. The appellant has come up by certificate to this Court.\n\nCounsel for the appellant raised only two points in support of the appeal._ His first submission was that as the appellant had not completed 30 years' service on January 1, 1965 he could not be asked to retire on that date: and, secondly, having regard to the criteria laid down by the notification dated February 5, 1964 the order of retirement dated July 14, 1964 cast a stigma on him and as such was violative of the protection given by Art. 111 of the Constitution.\n\nThe submission of learned counsel on the first head was based on his construction of the resolution of May 21, 1963. It was urged that as the power of the appointing authority under paragraph 3 of that resolution to retire the appellant after he attained the age of SS years was described as \"in addition to the provisions contained in rule 2 in section 1 of the Liberalised Pension Rules\" under which Government might require an officer to retire at any time after he had completed 30 years' qualifying\n\nservice, the new provision was to be treated as super-added to the Pension Rules and no Government servant could be asked\n\nto retire at the age of 55 unless he had completed 30 years' qualifying service. As there was no dispute that the appellant had not completed 30 years of such service on lstJanuary 1965 It was urged on behalf of the appellant that Government could not resort to pagraph 3 of the said resolution.\n\nIn our view the above contention cannot be accepted. Be fore May 21, 1963 an employee of the Government of Orissa would have been due for superannuation when he attained the\n\nSUPREMB COURT REPORTS (1971] SUPP. s.c.R.\n\nage of 55 years whether he had or had not put in thirty years' qualifying service. Government had before the said date an option to ask him to retire if he had completed 30 years qualifying service even though he has not reached the age of fifty five years ; correspondingly the officec had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years' qualifying serVice to his credit. Fifty five years was the outside limit of age to which an officer was permitted to work before superannuation. The resolution of May 21, 1963 raised the age of superannuation from 55 to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age of 55 years without assigning any reason. This was not unilateral. A Government servant was not bound to continue in service beyond the age of fifty five years unless he wanted it. There was no alteration in the rule under which a Government servant could voluntarily retire or be asked to retire in a case where he had completed thirty years' service. In other words, the right of Government to require an officer to retire at any time after he had completed 30 years' service was and still remained intact. This right which was not linked with the age of superannuation before May 1963 remained unaffected even after that date. Although the age of superannuation was raised from 55 to 58 years Government armed itself with the power to requ'ire any employee to retire when he attained the age of 55 years without assigning any reason.\n\nReliance was placed on certain observations in the decision of this Court in Gurdev Singh Sidhu v. State of Punjab and Anot/rer ('). There this Court struck down article 9.1 of the Pepsu Service Regulations under which the Government sought to retain an absolute right to retire any Government servant after he had completed ten years' qualifying service without giving any reason.\n\nIn that case the petitioner who had been appointed as an Assistant Superintendent of Police in the erstwhile Patiala State on February 4, 1942 and confirmed in that rank on the occurrence of a regular vacancy after undergoing practical district training courses, and after promotion to the rank of Superintendent of Police in an officiating capacity in February 1950 in the said State of Pepsu, was asked to show cause by notice dated March 25, 1963 as to why he should not be compulsorily retired. The petitioner complained that the notice issued to him was Invalid on the ground that the article on which it was based was itself ultra vires and inoperative and the only question before this Court was whether the impugned article was shown to be constituti?nally invalid.\n\nReferring to Satish Chandra Anand v. The Unron of India(') and to certain dicta of the majority Judges in Moti Ram\n\n(1) [196417 S, C. R. 587 atS93.\n\n(2) [1963] S. C.R.. 6SS.\n\nBATAHARI v. ORlSSA (Mitter, J.)\n\nDelea etc. v. The General Manager, North East Frontier Railway etc.(') this Court observed by way of explanation that:\n\n\". . the majority judgment took the precaution of adding a note of caution that if a rule of compulsory retirement purported to give authority to the Government to terminate the services of a permanent public servant at a very early stage of his career, the question about the validity of such a rule may have to be examined. That is how in accepting the view that a rule of compulsory retirement can be treated as valid and as constituting an exception to the general rule that the termination of the services of a permanent public servant would amount to his removal under Art. 311 (2), this Court added a rider and made it perfectly clear that if the minimum period of servi<;~ which was prescribed by the relevant rules upheld by the ear.lier decisions was 25 years, it could not be unreasonably reduced in that behalf. In other words, the majority judgment indicates that what influenced the decision was the fact that a fairly large number of years had been prescribed by the rule of compulsory retirement as constituting the minimum period of service\n\n~ after which alone the said rule could be invoked.\"\n\nThe Court further observed (see p. 594) that:\n\n\"The safeguard which Art. 311 (2) affords to permanent E public servants is no more than this that In case it is intended to dismiss. remove or reduce them in rank, a reasonable opportunity should be given to them of showing cause against the action proposed to be taken in regard to them. A claim for security to tenure does not mean security of tenure for dishonest, corrupt, or ineffieient\n\npublic servants. The claim merely insists that before F they are removed, the permanent public servants should be given an opportunity to meet the charge on which they are sought to be removed. Therefore, it seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by Art. 311(2). If a permanent public servant is asked to retire G on the ground that he has reached the age of superannuation which has been reasonably fixed, Art. 311 (2) does not apply. because such. retirement is neither dismiss~! nor removal of the public servant. If a permanent pul!c servant is compulsorily retired under the . rules which prescribe the normal age of s_uperannuat10.n and o- H vide for a reasonably Jong penod of quahfied service\n\n(I) [1964]-5 s. c. R. 683.\n\nSUPR.BMB COUR.T RIPOR.TS\n\n[1971] SUPP. S.C.R..\n\nafter which alone compulsory retirement can be ordered. that aga.in may not amount to dismissal or removal under Art. 311 (2) mainly because that is the effect of a long series of decisions of this Court. But where while reserving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to compulsorily retire a public servant at the end of 10 years of his service, that cannot, we think, be treated as falling outside Art. 311 (2).\n\nThe termination of the service of a permanent public servant under such a rule, though called compulsory retirement, is, in substance, removal under Art. 311(2).\"\n\nIn our v'iew the above observations relied on by counsel do not help the appellant. The above observations show that a rule which. permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be hit by Art. 311. They cannot apply when the period of qualifying service mentioned in the rule is not unreasonably short and the normal age of superannuation fixed Is not unaccountably early.\n\nBefore May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years' qualifying service or not. The fact that the age of superannuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does not violate Art. 311 (2).\n\nOn the second point it is enough to point out that the order of July 14, 1964 did not cast any aspersions or stigma on the appellant which woulil attract Art. 311.\n\nUndr paragraph 3 of the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason.\n\nThe fact that by the notification of 5th February 1964 certain guidelines were indicated to the Heads of Departments in considering whether a Government servant should continue in service beyond the age of 55 years, one of the factors for consideration being lack of integrity, did not imply that . any officer whose continuance in serv'ice was not advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant.\n\nIn the result we must hold that there has been no violation of Art. 311 of th~ Constitution and the appeal must be dismissed with costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 21, "entities": [{"text": "152\n\nBATAHARI JENA", "label": "PETITIONER", "start_char": 1, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "BATAHARI JENA", "offset_not_found": false}}, {"text": "STATE OF ORISSA", "label": "RESPONDENT", "start_char": 21, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY, JJ.", "label": "JUDGE", "start_char": 120, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 4367, "end_char": 4378, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964)\n\n7 S.C.R. 587", "label": "CASE_CITATION", "start_char": 4429, "end_char": 4449, "source": "regex", "metadata": {}}, {"text": "[1964) 5 S.C.R. 683", "label": "CASE_CITATION", "start_char": 4585, "end_char": 4604, "source": "regex", "metadata": {}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 4632, "end_char": 4640, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 111", "label": "PROVISION", "start_char": 10058, "end_char": 10066, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 10435, "end_char": 10444, "source": "regex", "metadata": {"statute": null}}, {"text": "article 9", "label": "PROVISION", "start_char": 12984, "end_char": 12993, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 14883, "end_char": 14891, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 15489, "end_char": 15497, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 16192, "end_char": 16203, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 16349, "end_char": 16357, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 16833, "end_char": 16841, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 17274, "end_char": 17282, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 17438, "end_char": 17449, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 17740, "end_char": 17748, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 18255, "end_char": 18263, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 18424, "end_char": 18432, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 19129, "end_char": 19137, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_359_366_EN", "year": 1971, "text": "MANHARLAL BHOGO..AL SHAH\n\nSTATE OF MAHARASHTRA\n\nApril 5, 1971\n\n[S. M. Snrn, c. J., G. K. MITTER, K. s. HEGDE, A. N. GROVER AND\n\nP. JAGANMOHAN REDDY, JJ.]\n\nSea Customs Act, 1878, s. 167, items 87 and 81, and s. 187 A-If s. 187 A confers arbitrary powers on customs officials-I/ ultra vires A.rt. 14 of Constitution.\n\nThe appellant import\"! consignments of contraband and prohibited goods. He was prosecuted for an offence under s. 167, item 81, of the Sea Customs Act, 1878, on a complaint by the appropriate authority under s. 187 A, and was convicted.\n\nOn the question whether s. 187-A violated Arl 14 of the Constitution on the grounds; (I) that tho Customs authorities had an absolute discretion to proceed either under s. 167(8) in which case there would be only an imposition of a fiscal penalty and confiscation of goods; or to fi!e a complaint in the criminal court under s. 187 A for the offence under s. 167 item 81, in which case there couJd also be a sentence of imprisonment up to two years. and (2) the customs officials have a wide latitude in choosing cases for criminal prosecution,\n\nHELD: (I) The proceedings under the Foreign Exchange Regulation Act, 1947, unlike under tho Sea Customs Act, could be taken in the alternative clnd the punishment could also be imposed in the alternative. Any person guilty of contravention of s. 23(1Xal of that Act could not be made liable for a penalty under s. 23(1) (a) and also to prosecution and imprisonment under s. 23(1Xb). Therefore, s. 23D, which empowers the Director of Enforcement to file complaint instead of imposing a penalty under s. 23(l)(a) only if he was satisfied that in tho circumstances of a case a penalty under s. 23(1Xa) would be inadequate, was necessary to prevent arbitrary exercise of discretion by the Director under that Act. Such a provision however, is not necessary under the Sea Customs Act, becau~. if a prrson is found guilty under s. 167, item 8, and if his case is also covered by item 81, there is no choice in the matter of imposing penalty or punishment. A penalty can be imposed under item 8, and be will also be liable to criminal prosecution under item 81.\n\n[363B-F; 364A-B]\n\nReyala Corporation (P) Ltd. v. Director of Enforcement, New De/Iii. [19,71] 1 S.C.R. 639, referred to.\n\n(2) It cannot be said that s. 187A confers an unguided power on the customs authorities for not filing a complaint against a person •lthouah he was liable to a criminal prosecution under s. 167. item 81.\n\nWhile deciding whether a complaint should be instituted for an offence which is covered both bf Utems 8 and 81 of s. 167, a customs offir must take into account the enOrmity and maa:oitude of. the contra ventron, the H evidence which is available, and whether. the evidence is sufficient to take the matter to a criminal court: T1ie officers who are authorised to mate\n\na complaint under s. 187 A are senior officials holding rens of the aforesaid Act. Under s. 23(1)(a) a person was liable to a penalty only and that penalty could not exceed three times the value of foreign exchange in respect of which contravention had taken place or Rs. 5,000 whi'chever was more. That penalty could be imposed by adjudication made by the Director of Enforcement in the manner provided in s. 23(D) of the said Act. The alternative punishment provided by s. 23(1)(b) upon conviction by a court was a sentence of imprisonment for a term which could extend to two years or with fine or with both. The argument that the section laid down no principles for determining when a person concerned should be proceeded against under s. 23(1)(a) and when under s. 23(1) (b) and that It was left to the arbitrary discretion of the Director of Enforcement to decide which proceeding should be taken was repelled by relying on the provisions of s. 23D. Under that section the Director of Enforcement was first to hold an inquiry for the purpose of adjudging whether there had been contravention under s. 23(1)(a) and if he was satisfied that the person had committed a contravention he could imj>ose a penalty prqvided, thereby. According to the proviso, however, if at any stage of the enquiry he was of the opinion that having regard to the circumstances of the case the penalty would not be adequate he was bound to make a complaint in writing to the court instead of imposing any penalty himself.\n\nCounsel for the appellant has laid greltl emphasis on the absence of any such provision in the Act as was to be found in s. 23D of the Foreign Exchange Regulation Act 1947. But it is significant that under the aforesaid enactment the proceedings ' could be taken. in the alternative and the punishment also could be imposed only in the alternatie and any person guilty. of contravention could not be made !table for a penalty provided by s. 23(1)(1) as also imposed a sentence of imprisonment under\n\n(1) [1971] I $. C. R. 639.\n\n.,,\n\nlil\n\ns. 23(l)(b). According to the provision of s. 167, items 8 and 81 of the Act there is no choice in the matter of imposing penalty or punishment. If a person is found guilty a penalty can be imposed under item 8 and he will also be liable to criminal prosecution and conviction if has case is covered by item 81 of that section.\n\nIn numerous Acts provisions are found according to which no co.urt can take cogniZl!nce unless either sanction is granted by the competent authority for the prosecution of an accused person or a complaint in writ'ing is made by an officer or authority empowered in that behalf. Nothing is indicated or expressly stated in most of the provisions as to the circumstances in which sanction should be withheld or granted or a complaint should be in stituted or not. One of such provisions came up for examination in Gokulchand Dwarkadas Moraka v. The King (1).\n\nUnder clause 23 of the Cotton Qoth and Yarn Control Order 1943 no prosecution for contravention of any of the provisions of th•: Order could be instituted without the preVious sanction of the Provincial Government etc. It was laid down that in order to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged.\n\nCounsel for the appellant has relied a great deal on the following observations of their lordships :\n\n\"They can refuse sanction on any ground which commends itself to them, for example that on political or economic grounds they regard a prosecution as inexpedient.\"\n\nIt is argued that if the same wide latitude is given to the cutoms\n\nofficers mentioned in s. 187 A they can i111port even political or economic considerations for not filing a complaint although a person is liable to criminal prosecution for an offence under s.167(81\\. We consider it unnecessary to pronounce, with respect, on the correctness or otherwise of the above observations. We have no doubt that the authorities concerned are expected to take into account the changed conditions obtaining after the enforcement of our Constitution which guarantees fundamental rights including Art. 14. They are bound to examine the facts of a particular case and then decide whether prosecution should be launched or not.\n\nEven if any policy or guidelines have to be found they can certainly be discovered from the object. purpose and scheme of the Act.\n\nThe preamble reads: \"Whereas it is expedient to consolidate and amend the Jaw relating to the levy of Sea Customs duties it is enacted as follows\". Chapter IV deals with prohibitions and restrictions\n\n(I) A. I. R. 1948 P. C. 82.\n\nlllANHARLAL •• MAHARASHTRA (Grover, J.)\n\non importations and exportation and Chapter V, 'with levy of and exemption from customs duties. Elaborate provisions have been made tT some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in r. 1 S for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary A11thority has enough powers to reconsider the evidence itself and come to its own conclusion under r. 9. [379 HJ\n\nTb• rules do not contemplate an action such as taken by the Collector in appointing a third Inquiry Officer. It seems that the Collector instead of taking responsibility himself was determined to get some officer to report against the appellant. The procedure adopted was not only against the rules but also harassing to the appellant. (380 BJ\n\nJn the result it must be held that no proper inquiry has been conducted in the case and, therefore, there has been a breach of Art. 311 (2) of the Constitution.\n\n(380 E]\n\nCML APPELLATE JURISDICl'ION : Civil Appeal No. 612 of 1967.\n\nAppeal by special leave from the judgment and order dated H February 16, 1966 of the Judicial Commissioner Court, Tripura in Writ Petition No. 12 of 1962.\n\nSUPREME COURT REPORTS (1971] SUPP. s.c.R.\n\nA M. R. Ramamurthi and Vineet Kumar, for the appellant.\n\n0. P. Malhotra, Ram Panjwanl and S. P. Nayar, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSikri, C.J.-This is an appeal by special leave from the judgment of the Judicial Commissioner for Tripura and Agartala dismissing the petition under Art. 226 of the Constitution filed by the appellant, K. R. Deb.\n\nThe relevant facts are these : The appellant was appointed as a Sub Inspector of Central Excise in a temporary vacancy on September 20, 1958 and he reported for duty on October 15, 1958. On May 30, 1959 he was alleged to have detained five maunds of onion from the house of one Sayed Ahmad at Ramendranagar. It is further alleged that one Siddique Ahmad handed over a sum of Rs. 100 to the appellant, through one Harendra Kumar Dutta, on May 31, 1959, but the appellant did not mention the realisation of this amount in his seizure report.\n\nThe following charge was framed against the appellent by Shri R. C. Mehra, Collector, Central Excise & Land Customs, Shillong:\n\n\"That Shri K. R. Deb, Sub-Inspector, was found guilty for concealing the fact of realisation of Rs. 100 from Shri\n\nSiddique Ahmed on 31-5-1959 and not reporting the mlitter in the seizure report or in his diary and th.us misappropriated Govt. money of Rs. 100.\"\n\nThe allegations regarding this charge were supplied to the appellant.\n\nThe appellant applied for copies of certain documents on December 28, 1960. On March 30, 1961 he submitted his written statement of defence. In this written statement the appellant denied the charge. The Collector, by his letter dated May 11, 1961, appointed Sbri B. P. Barua, Examiner of Accounts, Central Excise and Land Customs, as Inquiry Officer Shri Barua held an inquiry and submitted a report, dated July 3, 1961, holding that the charge framed against the appellant was not proved. The Inquiry Officer concluded :\n\n\"There is no conclusive evidence to establish the charge of misappropriation of Govt. money. It is only established that the goods (5 mds. of onions) were seized from the house of Sri Siddiq~ l\\hmed but in his diary and seizure report Sri K. R. Deb concealed the fact and seizure was shown to have been ma!le on border, 1be charge does not include such concealment of fact\"\n\nDEB v. COLJ, JlCl'OR (Sikri, C.J.)\n\nBy order dated August 22, 1961, the Collector, Shri R. C.\n\nMehra, appointed Shri R. K. P. Sinha. Superintendent, Central Excise & Land Customs, as Inquiry Officer to conduct a supple-\n\n:metary open inquiry in the disciplinary proceedings instituted :agamst the appellant The reason for conducting this inquiry is :stated in order tbqs :\n\n\"Shri Jl. P. Barua, Examiner of Accounts, Customs & Central Excise, was previously appointed Inquiry Officer in this case, but he had not recorded an evidence of the prosecution witnesses viz., SI Shri Harendra Kr. Dutta, Jagabandhu Patwari, Syed Ahmed and Siddique Ahmed during the COl!l'S8 of open enquiry.\"\n\nIn his report dated October 12. 1961. the Inquiry Officer reported that \"there is nothing on record to prove the alleged acceptance of Rs. 100 bY Sbri K. R. Deb, Sub-Inspector.\" In his report he stated that Shri Harendra Kumar Datta did not appear in the Inquiry though he acknowledged the receipt of summons issued to him. It appeared to the Inquiry Officer that Shri Dutta was not willing to attend the inquiry. In the course of the report he observed:\n\n\"Thus the entire story of handing over the money to Sri Harendra Kumar Dutta in the presence of the Sub- Inspector on 3 l-S-59 topples down. It is also evident that the SubInspector could not have demanded the money on 30.5-1959 as the seizure it appears was made in the absence of Shri Siddique Ahmed. The whole episode, it appears, therefore, is a cooked up and fabricated to implicate the sub-lnspr. for the seizure he effected.\"\n\nAfter this report one would have thought that the Collector would make up his mind, but instead the Collector wrote on Dec. 20, 1961, to Shri R. K. P. Sinha, complaining that the report submitted by him had been found to be very sketchy and that he had failed to appreciate the importance of the evidence of Harendra Kumar Dutta, a prosecution witness in the case. The Collector further obliCfVed that \"in case he had fa'iled to rpond to the suar moll. you would have takeµ steps to send somebody at his house.\" He pointed out sonie further defects aµd drew the attention of the Inquiry Officer to the stalenlent of Sepoy Monoranjan wl!ere\n\nfrom it appeared witho11t any shadow of doubt that a sum of Rs. 100 was given to Shri K. R. Deb in the presenee of this sepoy.\n\nThe Collector further observed that \"in the face of overwhelming evidence regardins thiS allegation of corruption, it is difficult to minimise the importance of th8 witnoues.\" The Collector then proceeded to direct. the Inquiry Officu to examine Harendra Kumar iDutta, Jagabandha P&twari nad Sepoy Monmajan Ghosh witliout\n\nJi'\n\nSUPRElllE COURT REPORTS\n\n(1971] SUPP. S.C R.\n\nfurther delay, and to submit the final repori before January\n\n10, 1962.\n\nThe Inquiry Officer in his report dated January 20, 1962, stated: \"From the various statements g'iven to me in my enquiry dated 20-9-61, 4-1-62 and 12-1-62, it may kindly be seen that no conclusive proof is forthcoming to establish the charge of acceptance of money (Rs. 100) by Sri K. R.\n\nDeb. But in view of the previous enquiry and statements given by witnesses, evading reply of Sri Dutta, the conduct of Shri K. R. Deb may not be above board.\"\n\nOn February 13, 1962 the Collector passed the following. order:\n\n\"In supersession of this office letter 0. No. II(IO) All/ Con/60 and 0. No. HOO) A/3/Con/61, dated 12-5-1961 and 22-8-61 respectively, the undersigned considers that another Inquiry Officer should be appointed to inquire afresh into the charge framed against Sarbasri K. R. Deb, Sub-Inspector of Central Excise, Shillong Collectorate.\n\nNow therefore the undersigned in exercise of the powers conferred by rule 15(4) of the C.C.S. (C.C.A.) Rules 1957 hereby appoints Shri K. P. Patnaik, Examiner of Accounts, Customs and Central Excise, Shillong as an enquiry officer to inquire into the charges framed against the said Sarbasri K. R. Deb.\"\n\nOn March 6, 1962, Shri Patnaik reported that it was proved that \"Shri K. R. Deb did not bring into account the sum of Rs. 100 realised on May 31, 1959 from Siddique Ahmad of Ramendranagar.\n\nThe amount has therefore been misappropriated. The charge of misappropriation of Rs. JOO is therefore proved against Sri K. R.\n\nDeb.\"\n\nOn March 15, 1962 a notice was issued to the appellant to show cause why he should not be dismissed from service.\n\nOn March 20, 1962 he filed an application giving the list of documents copies of which he wanted. He gave his explanation on May 21, 1962 and asked for personal hearing. On June 4, 1962, he was dismissed from service and on June 14, 1962, he filed the writ petition out of which this appeal arises.\n\nA number of points have been raised before us but we need only mention one point, viz .. that the Collector had no authority to appoint Shri K. P. Patnaik to inquire into the charge after the: Inquiry Officers had reported in bis favour. It was urged before us that such an inquiry is not contemplated by the Central Civir\n\nDEB V. COLLECTOR (Sikri, C.J.) 379-\n\nServices (Classification, Control and Appeal) Rules, 1957. It was A contended that rule 15 .of the Classification and Control Rules did not contemplate successive inquiries, and at any rate, even if it contemplated successive inquiries there was no provision for setting aside earlier inquiries without giving any reason whatsoever. It was further contended that the order dated Februarv 13, 1962 was ma/a fide. ·\n\nRule 15(1) of the Classification and Control Rules reads as follows:\n\n\"(I) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties speeified in clauses (iv) to (vii) of rule 13 shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided.\"\n\nClause (2) of rule 15 provides for framing of charges and communication in writing to the government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under cl. (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions.\n\nUnder clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such. of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inqDiry, recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings Qf the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. Under\n\ncl. (9) \"the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its find ings on each charge.\" Clause (10) provides for issue of showca use notice.\n\nIt seems to us that Rule 15, on the face of it, really provides for one lnquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for\n\nSUPREME.COURT ~EPO~TS\n\n[1971) SUPP. S.C.R.\n\ncompletely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority.\n\nThe Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9.\n\nIn our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant.\n\nThe procedur.e adopted was not only not warranted by the rules but was harassing to the appellant. ·\n\nBefore the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplin11ry Authority had made up its mind to dismiss the appel !ant. The Judicial Commissioner held that on ihe facts it could not be said that the Disciplinary Authority was prejudiced against t!ie appellant. )Jut it seems to us that on the material on record a S\\!Spicjop does arise that the Collector was determined to get some nguiry Ollicer to report against the appellant.\n\nIn the rsult we hold that no proper inquiry has been COJl.· ducted in the case iind, therefore, there hiis been a breach of art. 311(2) of the Constitµtion.\n\nThe appeal is accordingly allowed and the ord.er dated June 4, 1962 quashed, and it is declared that tile 11ppeUan1 should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office. The appellant will have his costs here and in the Court of the Judicial Commissioner.\n\nFees shall be payable by the appellant to his advocate and be allowed on taxation.\n\nG.C. 4.ppecrl allowed.", "total_entities": 11, "entities": [{"text": "OEB\n\nCOLLECTOR OF CENfRAL EXCISE, SHILLONG", "label": "RESPONDENT", "start_char": 8, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "COLLECTOR OF CENTRAL EXCISE, SHILLONG", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 69, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 88, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 102, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 115, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY, JJ.", "label": "JUDGE", "start_char": 133, "end_char": 157, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "Central Civil Services Classification-Control and Appeal Rules 1957", "label": "STATUTE", "start_char": 174, "end_char": 241, "source": "regex", "metadata": {}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 2684, "end_char": 2692, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 3305, "end_char": 3313, "source": "regex", "metadata": {"statute": null}}, {"text": "S8", "label": "PROVISION", "start_char": 5935, "end_char": 5937, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 311(2)", "label": "PROVISION", "start_char": 14316, "end_char": 14327, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_381_389_EN", "year": 1971, "text": "KUMARI N. V ASUNDARA\n\nSTATE OF MYSORE & ANR.\n\nApril 15, 1971.\n\n(J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.J\n\nConstitution of India, Art. 14-Equality-Rules for selection of candidates to Pre-Professional course in the Government Medical Colleges in the State of Mysore framed in 1970-Admission based on domicile and residence for not less than 10 years prior to application-Reasonableness.\n\nRule 3 of the rules for selection of candidates for admission to the preprofessional course leading to M.B.B.S. in the Government Medical\n\nColleges in the State of Mysore provided that \"no person who is not a citizen of India and who is not domiciled and resident in the State of Mysore for not less than ten years at any time prior to the date of the application for a seat, hall be eligible to apply\"\n\nThe petitioner's application for admission was rejected on the ground that she had not resided in the State for a period of ten years as required by r. 3. She challenged the constitutional validity of r. 3 on the ground ef violation of right to equality guaranteed by Art. 14 of the Constitution.\n\nIt was contended that the impugned rule, by imposing the condition of residence in addition to the condition of being domiciled in the State created an artificial classification which suffered from unconstitutional descrimination. In support of the .validity of the rule it was urged that by the rule the\n\nState only attempted to select those students who were more likely to serve as doctors in the State and it was for the State to determine the sources from which to select candidates.\n\nDismissing the petition,\n\nHELD: The word \"domicile\" in r. 3 is used to convey the idCa of y intention to reside or remain in the State of Mysore.\n\nIf classification based on residence does not impinge upon the principle of equality, as held by this Court in D. P. Joshi v. State of Madhya Bharat, then the further condition of residence in the State for at least n years would also be equally valid unless it is shown that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia.\n\nThe object of framing the impugned rule is to impart medical education to the best G. talent available, out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors the inhabitants of the State.\n\nThe State has to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based n1edical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classifiCation inspired by this consideration and selection on merit from such classified groups, H therofore, cannot be challenged on the ground of inequality violating Art.\n\n14. The petitioner. has not shown that the impugned rule suffer from the vice of unreasonableness. [388 D-389 CJ\n\n:382\n\nSUPREME COURT REPORTS (1971] SUPP. s.c.R.\n\n.A There is likelihood of some cases of hardships under the impugned\n\nJ!'\n\nru1e. But cases of hardships are likely to arise in the working of almost any rule which may be framed for selecting a limited number of candidates for ad1nission out of a long list. This would not render the rule unconstitutional. [389 E]\n\nD. P. Joshi v. The State of Madhya Bharat and Anr., [1955] I S.C.R. 1215, relied on.\n\nChitra Ghosh & Anr. v. Union of India and Ors .. [1970] I S.C.R. 413 and Minor P. Rajendran v. State of Madras & Ors .. [1968] 2 S.C.R. 786, referred to.\n\nORIGINAL JURISDICTION: Writ Petition No. 606 of 1970.\n\nPetition under Art. 32 of the Constitution of India for enforcement of fundamental rights.\n\nR. B. Datar, for the petitioner.\n\nNiren De, Attorney-General and S. P. Nayar, for the respon dents .\n\nThe Judgment of the Court was delivered by\n\nDua, J.-The only question raised in this writ petition under Art. 32 of the Constitution relates to the constitutional validity of r. 3 of the Rules for Selection of candidates for admission to the Pre-Professional/B.Sc. Part I Course leading to M.B.B.S. in the Government Medical Colleges and for certain seats in the private Medical Colleges in the State of Mysore framed by that State on July 4, 1970 (hereinafter called \"the Selection Rules\").\n\nThe petitioner Kumari N. Vasundara claims to have passed the Pre-University Examination of the Bangalore University with physics, chemistry and biology as optional subjects securing 78 %\n\nmrks in these subjects. She applied for adm'ission to the Pre Professional Course leading to the M.B.B.S. in the Government Medical Colleges, but the Selection Committee, after interviewing her on September 14, 1970, rejected her application on the ground that she had not resided in the State of Mysore for a period of ten years prior to the date of her application as required by r. 3 of the Selection Rules. It is not disputed that but for the condition requiring residence in Mysore State for a period of ten years prior to the date of her application she was otherwise eligible for admission under the Selection Rules in all other respects. Rule 3 reads as under : ·\n\n\"No person who is not a citizen of India and who is not domiciled and resident in the State of Mysore for not\n\nVASUNDARA ' MWORB (Dua, J.) 383\n\nless than ten years at any time prior to the date of the application for a seat, shall be eligible to apply:\n\nProvided that this provision shall not apply (a) in the case of persons applying for seats referred to in clauses (a), (b), (c), (d) and (e) of sub-rule (!) of rule 4,\n\n(b) in the case of children of Central Government employees serving on duty in the State on the date of making the application and (c) in the case of children of Mysore Government employees including children of members of all India Services borne on the Mysore State Cadre who--\n\n\"(i) are serving or have served outside the State of Mysore on deputation during the relevant period, and\n\n(ii) are in the service of the State on the date of making the application or have retired from service not more than four years prior to the date of making the application.\"\n\nShri Datar, the learned counsel for the petitioner, challenged the constitutional validity of r. 3 on two grounds. The first challenge is founded on the ground of violation of the right to equality guaranteed by Art. -14 of the Constitution. According to his argument the impugned rule has, by imposing the condition of residence for a minimum period of ten years in the State of Mysore in addition to the condition of being domiciled in that State, created an artificial classification which suffers from unconstitutional discrimination, between the Indian citizens domiciled in the State of Mysore who have resided there for ten years or more and those who have resided there for less than ten years. The period of ten years of residence selected in this rule is not only arbitrary but is highly unreasonable, based on no rational or Intelligible principle, said the counsel. Its unreasonableness was illustrated by submitting that students normally. pass the Pre- University Examination at the age of 16 or 17 years. To expect such students to have resided in the State of Mysore for ten years in order to be eligible for admission to the Pre-Professional/ B.Sc.\n\nPart I Course leading to M.B.B.S. would mean that the children of those Indian citizens having their domicile in the State of Mysore who happen, for compelling reasons, to reside in other States in the Indian Union before their children have completed ten years of residence in the State of Mysore would be deprived of the opportunity of having medical education in their own State of domicile.\n\nThis argument was elaborated by submitting that if all other States in the Union were also to frame similar rules\n\nSUPREM!l COURT REPORTS (1971] SUPP. s.c.R.\n\ninsisting on residence for ten or more years, then the children of those citizens, who are compelled by the necessity of earning their livelihood, to shift their residence from one State to another at short intervals, without completing ten years of residence in any one State, would never be able to get admission in any State.\n\nFixing a period of ten years of residence in the State, according to Mr. Datar, is arbitrary and fanciful having no rational relationship or nexus with the object or purpose of framing the rules, namely, of selecting the best talent or the most meritorious students for admission to the Medical Colleges.\n\nThe learned Attorney-Oeneral on behalf of the respondents submitted that by the Impugned rule the State has attempted to select those students who are more likely to serve as doctors in the State after they pass out. In this connection our attention was drawn to the counter-affidavit filed by the State. The Attorney-Oeneral further contended Iii.at it was for the State to determine the sources from which to select candidates and the selection so made deserves to be upheld. In support of the validity of the rule he drew our attention to the deciSion of this Coun in Chitra Ghosh & Another v. Union of India and Others(') and to a decision of the Mysore High Court in K. Shivashankar v. University of Mysore & Others(').\n\nThis Court in Minor P. Rajendran v. State of Madras & Ors.(') while dealing with the rules made by the State of Madras for the selection of candidates for admission to the First Year integrated M.B.B.S. course, struck down, as violative of Art. 14, the rule which allocated seats on district-wise basis. A bench of five judges observed in that case :\n\n\"The question whether district-wise allocation is violative of Art. 14 will depend on what is the object to be achieved in the matter of admission to medical colleges.\n\nConsidering the fact that there is a larger number of candidates than seats available, selection has got to be made.\n\nThe object of selection can only be to secure the best posSible materrial for ad!miS&!on to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best\n\n(1) [197011 S. C.R. 413.\n\n(3) [196812 S. C.R. 786.\n\n(2) (1970] 1 Mys.L.J. 47S.\n\nVASIJNDAJ.A v. llYSOR.B (Dua, J.)\n\npossible talent from the two sources. If that is the object. it must necessarily follow that that object would be defeated if seats arc allocated district by district It can not be and has not been denied that the object of selec lion is to secure the best possible talent from the two sources so that the country may have the \"best possible doctors\". If that is the object, the argument on behalf of the petitioners I appellant is that jhat object cannot possibly be served by allocating seats district-wise. It is true that Art. 14 docs not forbid classification, but the classi fication has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reason able classification. The fact however that the classifica tion by itself is reasonable is not enough to support it un less there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are con cerned is to get the best talent for admission to professional colleges, the allocation of seats district-wise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources.\"\n\nThe argument that candidates coming from various districts would settle down in those districts to serve the people there was not accepted, because there was no material on the record giving facts and figures suggesting that candidates from a particular district would generally settle down in that district. It was not even so stated in the affidavit filed on behalf of the State of Mysore in that case. 'The Court, however, took care to clarify the legal position by adding :\n\n\"We may add that we do not mean to say that territorial classification is always bad under all circumstances. But there is no doubt that district-wise classification which is being justified on a territorial basis in these cases is violative of Art. 14, for no justification worth the name in support of the classification has been made out.\"\n\nIn Chitra Ghosh's case r> this Court said:\n\n\"The main purpose of admission to a medical college is to impart education in the theory and practice of me-\n\n(I} [1970] 1 S. C.R. 413.\n\n25-1 S.C. India/71\n\nSa&\n\nSUPREMB COURT REPORTS [1971] SUPP, s.c.ll.\n\ndicine.\n\nAs noticed before the sources from which students have to be drawn are primarily determined by the authorities who maintain and run the institution, e.g., the Central Government in the present case. In Minor P. Rajendran v. State of Madras-(1968) 2 S.C.R. 786it has been stated that the object of selection for admission is to secure the best possible material. This can surely be achieved by making proper rules in the matter of selection but there can be no doubt that such selection has to be confined to the sources that are intended to supply the material. If the sources have been classified in the manner done in the present case it is diflicult to see how that classification has no rational nexus with the object of Imparting medical education. and also of selection for the purpose.\"\n\nThe decision in Minor P. Rajendran's case ('J was distinguished on the ground that in that case the classification made districtwise had been considered to possess no reasonable relation wi&h\n\nthe object sought to be achieved. It was also observed in Chitra Ghosh's case(').\n\n\"It is the Central Government which bears the financial burden of running the medical college. It is for it to Jay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The .Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education.\n\nIf the sources ate properly classified whether on territorial. geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification.\"\n\nAccording to this observation which merely re-affirms the settled law, if the sources are properly classified on reasonable basis. then courts are not expected to interfere with the manner and method of making the classification. Reasonable basis of course must mean that the basis is not arbitrary or fanciful, but bears a just, rational and intellible. relation with the object sought to be achieved by the classification.\n\n(I) [1968) 2 S.C.R. 786. c2> [19101 1 s.c.R. 413.\n\nIn D. P. Joshi v. The State of Madhya Bharat and Another (') this Court had while uphofding by majority the rules, made by the State of Madhya Bharat, for admission to the Mahatma Gandhi Memorial Medical College, Indore, charging capitation fee from non-Madhya Bharat students laid down that in those rules the word \"domicile\" was used in its popular sense convey ing the idea of residence. Venkatarama Ayyar, J., speaking for the ma jotity said : .\n\n\"It was also urged on behalf of the respondent that the word \"domicile\" in the rule might be construed not in its technical legal sense, but in a popular sense as meaning \"residence\", and the following passage in Wharton's Law Lexicon, 14th Edition, page 344 was quot ed as supporting such a construction :\n\n\"By the term 'domicile', in its ordinary acceptation, is meant the place where a person lives or has bis home.\n\nIn this sense the place where a person has his actual residence, inhabitancy, or commorancy. is some times called '.his domicile\".\n\nIn Mcmullen v. Wadsworth (1880) 14 A. C. 631it was observed by the Judicial Committee that \"the word 'domicil' In article 63 (of the Civil Code of Lower Canada) was used in the sense of residence, and did not refer to international domicile\". What has to be considered is whether in the present context \"domicile\" was used in the sense of residence. The rule requiring the payment of a capitation fee and providing for exemption therefrom refers only to bona fide residents within the State. There ls no reference to domicile in the rule itself, but in. the Explanation which follows, clauses (a) and (b) refer Jo domicile, and they occur as part of the definition of \"bona fide resident\".\n\nIn Corpus Juris Secundum, Volume 28, page S, It is stated:\n\n\"The term 'bona fide residence' means the residence with< domiciliary intent.\"\n\nThere is therefore considerable force in the contention of the respondent that when the rule making authorities referred to domicile in clauses (a) and (b) they were thinking really ofi ; residence. In this view also, the contention that the rule is repugnant to article 15(1) must fail.\" ·\n\n(I} [19SS] I S. C.R. 121S.\n\n988 SUl'REM!I COURT REPORTS\n\n(1971) SUPP.S.C.R.\n\nA Under the impugned rule in that case no capitation fee was to be charged from the students who were bona fide residents of Madhya Bharat, and the expressio11 \"bona fide resident\" for the purpose of the rule was defined as (to quote the relevant portion):\n\n\"one who is-\n\n(a) a citizen of India whose original domicile is in Madb.ya Bharat, proVided he has not acquired a domicile elsewhere, or\n\n(b) a citizen of India, whose original domicile is not in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for not less than 5 years at the date, on which he applies for admission, or\n\n(c) a person who migrated from Pakistan before September 30, 1948 and intends to reside in Madhya Bharat permanently, or\n\n(d) ............................................. \" In our view the word \"domicile\" as used in r. 3 in the present case is also used to convey the idea of intention to reside or remain in the State of Mysore. If classification based on residence does not impinge upon the principle of equality eru.irined in Art. 14 as held by this Court in the decision already cited which is binding upon us, then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that seleotion of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia. The object of framing the impugned rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. It is true that it is not possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors : they have indeed a fundamental right as citirzens to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise. But these possibilities are permissible and inherent in our constitutional set-up and these considerations cannot adversely affect the constitutionality of the otherwise valid rule.\n\nThe problem as noticed in Minor P. Rajendran's case(') and as revealed by a large number of cases which have recently come to this Court Is that the number of candidates desirous of having medical educa-\n\n\nf 1956) reads thus :\n\n\"34. (!) If\n\n(a) the Income-tax Officer has reason to believe that\n\nby reason of the omission or failure on the part of an G assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year. . ..\n\nhe may in cases falling under clause (a) at any time H and in cases falling under clause (b) at any time within four years of the end of that year, serve on the assessee\n\n394 SlJPRBMB COURT RBPORTS\n\n[1971] SUPP. S.C.S..\n\n11. • • . • • • a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22.\n\n. F\n\nProvided that the Income-tax Officer shall not issue a notice under clause (a) of sub-section (!)-.\n\n(i) for any year prior to the year ending on the 31st day of March, 1941;\n\n(ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income-tax which have escaped assessment . . . . . . .\n\namount to, or are likely to amount to, one lakh of rupees or more in the aggregate; either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending before the 31st day of March, 1941 ..\n\nSection 34(4) of the Act as inserted by the Indian Incometax !Amendment) Act. 1959 reads as follows :\n\n\"(4) A notice under clause (a) of sub-section (1) may be issued at any time notwithstanding that at the time of the issue of the notice the period of eight years specified in that sub-section before its amendment by clause (a) of section 18 of the Finance Act, 1956 (18 of 1956) had expired in respect of the year to which the notice relates.\"\n\nSection 4 of the Indian Income-tax (Amendment) Act, 1959 .. provided :\n\n\"4. Saving of notices, assessments, etc., in certain cases.-No notice issued under clause (a) of sub-section\n\n(1) of section 34 of the principal Act at any time before the commencement of this Act and no assessment, re-asessment or settlement made or other proceedings taken in consequence of such notice shall be called in question in any court, tribunal or other authority merely on the ground that at the time the notice was issued or at the time the assessment or re-assessment was made, the time within which suohnotice should have been issued or the assessment or re-assessment should have been made under that section as in force before its amendment by clause (a) of section 18 of the Finance Act 1956 ([8 of 1956), had expired.\"\n\nThe learned counsel for the State quite rightly does not rely on Section 34 (4) of the Act to validate the notice because this contemplate a notice issued after the coming into force of the 1959 Act.\n\nIt seems to us that Section 4 of the Amending Act of 1959 does not save the notice under Section 34 (1) (a) issued on July 9, 1958.\n\nIn this case we are concerned with an income less than l lac mentioned in Section 34 as amended by Finance, Act, 1956.\n\nIt is no doubt true, as urged by the learned counsel for the Revenue, that the first sentence of Section 4 includes all notices issued under Clause (a) of sub-section (1) of Section 34 of the Act at any time before the commencement of the 1959 Act and the notice dated I uly 9, 1958 falls within this description.\n\nBut in our view the section does not save such notices from attack on all grounds whatsoever ; the only ground which cannot be taken to attack the validity of the notice is that at the time the notice was issued the period prescribed under Section 34 (I) (a), as in force before its amendment by Section 18 of the Finance Act, 1956, had expired.\n\nIs the assessee then raising this ground ? It seems to us that he is not.\n\nWhat he is saying is that a notice under Section 34 (!) (a), as amended by the Finance Act of 1956, could have been issued under that Act in respect of the assessment year 1948-49 till April I, 1957, and when the Finance Act of 1956 came into force he came to be governed by the 8 year period prescribed by\n\nthe Act as amended by the 1956 Act and not the 8 year period pre>cribed by the Act as it existed before the amendments made in 1956.\n\nAccordingly the assessee's ground of attack .is that the 8 years prescribed by Section 34 as amended after 1956 have exrired and not that 8 years prescribed by Section 34 before il• amendment by Finance Act, 1956 have expired.\n\nIn our view the stud taken by the assessee is correct.\n\nWe are supported in the view we have taken by certain observation of Sarkar, J., as be then was, in S. C. Prashar, I. T. C. v.\n\nJI as1111tsen Dwarkadas ('). The Court in that case was not concerned with assessment years in respect of which a notice could be issued under Section 34 (1) (a) of the Act as amended by the Finance Act of 1956, but the present case was visualised by\n\nSarkar. J., in that case.\n\nHe observed :\n\n\"So though Section 4 of the 1959 Act freed a notice from the bar of limitation in respect of it imposed by the 1948 amendment, it did not altogether do away with all prescriptions of time. In spite of Section 4, a notice contemplated by it would be subject to the prescription of\n\n(1) [1964] IS. C.R. 29, 90.\n\nSUPRBME COURT REPORTS\n\n(1971) SUPP. S.C.R.\n\nlime as to its issue under the 1939 Act and may be, under Section 34 as it stood before the 1939 amendment. If the notice was issued after the 1956 amendment it would also be subject to the prescription as to time provided by that amendmelll. (emphasis supplied.).\n\nThen it was said that if Section 4 applied to a notice issued more than eight years after the year in which the income escaped assessment bu\\ before the 1956 amendment came into force in a case where the escaped income of the year was less than Rs. 1,00,000 the position would be curious. A notice issued in a similar case after the 1956 amendment would be bad under Section 34 as it then stood and Section 4 could not save it for it saved notices only from the effect of the 1948 amendment. The position then would be that in a case involving the same amount of escaped income for the same year, a notice issued before 1956 amendment and invalid under the 1948 amendment would be validated and a more recent notice equally invalid under both the earlier and present laws would remain invalid. Assume that the position is somewhat curious or incongruous. But that seems to me to be the result of the words used.\n\nFor all we know that might have been intended. However strange, if at all, the result may be, I do not think the Courts can alter the plain meaning of the language of the statute only on the ground of incongruity if there is nothing in the words which would justify the alteration.\n\nAs I have said earlier, in this case there is nothing to justify the alteralion of the plain meaning.\"\n\nWe agree with the ebservations of the learned Judge.\n\nBut, as we have said, this Court was not concerned with a case governed by period of limitation as prescribed in 1956 and acoordingly we do not find it necessary to refer to the reasoning of the other learned Judges.\n\nAccordingly we set aside the judgment of the High Court and answer the question in favour of the assessee, with costs through out.\n\nV. P. 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"Section 34(3)", "label": "PROVISION", "start_char": 6582, "end_char": 6595, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 6752, "end_char": 6762, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 7032, "end_char": 7042, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 31", "label": "PROVISION", "start_char": 7440, "end_char": 7450, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7550, "end_char": 7559, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7687, "end_char": 7696, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 7737, "end_char": 7747, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7911, "end_char": 7920, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 8114, "end_char": 8124, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 8190, "end_char": 8200, "source": "regex", "metadata": {"statute": null}}, {"text": "section 22", "label": "PROVISION", "start_char": 8414, "end_char": 8424, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 22", "label": "PROVISION", "start_char": 8935, "end_char": 8945, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 8981, "end_char": 8991, "source": "regex", "metadata": {"statute": null}}, {"text": "section 22", "label": "PROVISION", "start_char": 9239, "end_char": 9249, "source": "regex", "metadata": {"statute": null}}, {"text": "section 22", "label": "PROVISION", "start_char": 9799, "end_char": 9809, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34(4)", "label": "PROVISION", "start_char": 10461, "end_char": 10474, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 10794, "end_char": 10804, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 10812, "end_char": 10829, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 10909, "end_char": 10918, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "section 34", "label": "PROVISION", "start_char": 11098, "end_char": 11108, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "section 18", "label": "PROVISION", "start_char": 11656, "end_char": 11666, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act 1956", "label": "STATUTE", "start_char": 11674, "end_char": 11690, "source": "regex", "metadata": {}}, {"text": "Section 34", "label": "PROVISION", "start_char": 11785, "end_char": 11795, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 11941, "end_char": 11950, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 12010, "end_char": 12020, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 12128, "end_char": 12138, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 12271, "end_char": 12280, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 12348, "end_char": 12358, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 12729, "end_char": 12739, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 12785, "end_char": 12795, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 12803, "end_char": 12820, "source": "regex", "metadata": {}}, {"text": "Section 34", "label": "PROVISION", "start_char": 12952, "end_char": 12962, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 13432, "end_char": 13442, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 13513, "end_char": 13523, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 13548, "end_char": 13565, "source": "regex", "metadata": {}}, {"text": "Section 34", "label": "PROVISION", "start_char": 13908, "end_char": 13918, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1956", "statute": "Finance Act, 1956"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 14070, "end_char": 14079, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1956", "statute": "Finance Act, 1956"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 14260, "end_char": 14269, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1956", "statute": "Finance Act, 1956"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 14471, "end_char": 14481, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1956", "statute": "Finance Act, 1956"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 14704, "end_char": 14713, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 15046, "end_char": 15056, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 15078, "end_char": 15087, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_397_406_EN", "year": 1971, "text": "FIRM OF HARBANSLAL JAGMOHANDAS & ANR.\n\nPRABHUDAS smvLAL\n\nApril 16. 1971\n\n(C. A. VAIDIALINGAM AND A. N. RAY, JJ.J\n\nPractice and Proced11re-Application for special leave to this Court-- A verment giving inipression that attention of High Court was drawn to the conflicting decision of another High Court, when in fact it 'tt'O.\\' not so drawn-c; rant of llave-lf may b~ revoked on the gro1111d that this Court was mi.~/ed.\n\nThe respondent who was the landlord of certain premises in Surat, filed a suit for the eviction of the petitioners, who were the tenants, on the ground of non payment of rent. The petitioners filed a written statcn1ent in which they raised a dispute regarding the standard rent. and also con\n\ntended that they had raised such a djspute within the time allowed by law. that is, one month of service of the suit notice. The trial court a~ well as thr appellate court found that a dispute regarding standard rent wcu; not rilised within one month of service of the suit notice and held. following a decision of the Gujarat High Court, that the respondent was entitled to recover posession under s. 12(3)(a) of the Bombay Rents. Hotel and Lodging House Rates (Control) Act, 1947. The High Court of Gujarat also rejected the petitioners' revision petition. Thereupon, the petitioners filed an application in this Court. for special leave. contending that the High Court of Bombay had held that it was sufficient if the dispute regard ing standard rent was raised in the written staten1ent, and that, in such a ca.6r eviction could not be ordered under s. 12(3) (a); and since there was a direct conflict between the High Courts of Gujarat and Bombay an important question of law relating to the scope and applicability of s.. t~(J)\n\n(a) arose. This Court granted special leave and stay.\n\nThe respondent filed an application for revocation of the grant of special leave on the ground that the averments in the special leave petition gave the impression that the attention of the Gujarat High Court was dra9.'D to the decision of the Bombay High Court, while in fact. it was not so. and that therefore the petitioners had misled this Court.\n\nHELD: Assuming that the grounds in the special leave applicatil)O gave the impression that the attention of Gujarat High Court was drawn to the decision of the Bombay High Court, it could not be stated that there was any mis-statement or untrue averment in the grounds. The contetinn rai!lled was a legal contention. and there was no other manner in which a pany could draw the attention of this Court to the conflict het\\\\'en the two High Courts. [405E-G].\n\nIt is but proper that if a party wants to have a particular legal position settled io a High Court, reconsidered on the basis of a different view taken by another High Court, he should draw the attention of the High Court, \\\\'h\"n the quetion is raised. to the conflicting decisions. Even if he has or1itted to do so it cannot be said that when the correctness of the judgment so given, is concerned before this Court he should not be allowed. to challenge the decision on the ground that another High Court has takell\n\na different view. Such a ground on a legal point should not be confused\n\n398 SUPREME COURT llBPO!lTS [1971] SUPP. s.c.R.\n\nor mixed up with averments regarding material facts or matters of impoi .. lance. [405G-H; 406A-C].\n\nThe statements in the special leave petition could not be considered to be untrue or false on material facts or matters of importance, and therefore, the prayer for revoking the special leave would have to be\n\ntejected. [4060].\n\nCIVIL APPELLATE JUIUSDICTION : Civil Misc. Petition Nus. 854 and 2282 of 1971.\n\nApplications for stay and for amendment of the prayer in C. M. P. No. 854 of 1971.\n\nCivil Appeal No. 282 of 1971. c Appeal by special leave from the judgment and order dated December 22, 1970 of the Gujarat High Court in Civil Revision Application No. 1353 of 1970.\n\nS. T. Desai, S. V. Tambwekar for S. K. Dholakia, for the petitioners and appellants.\n\nD I. N. Shroff, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nVaidialingam, J.-The petitioners in both these applications have taken on lease the ground fioor portion of property in Ward No. V. Nondh No. 1088 of Surat.\n\nThe respondent became the owner of the said property by purchasing it from the previous owner by a registered sale deed dated September 18, 1958.\n\nThe petitioners who were the tenants of the premises even prior to the date of purchase by the respondent, have continued to be his tenants and they are using the premises for their business pur- .poses.\n\nThe respondent landlord filed on February 12, 1967 a civil suit No. 144 of 1967 in the court of the Third Joint Civil Judge, Junior Division, Surat for evicting the petitioners.\n\nAccording to the landlord the petitioners had not paid the rent for a period of over six months and had also not complied with the notice issued under Section 12 of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (Act 57 of 1947) (hereinafter called the Bombay Rent Act). The respondent bad alleged that he had terminated the tenancy of the petitioners by notice dated November 24, 1966.\n\nThe respondent sought eviction of the petitioners on two grounds namely, (!) default in payment of rent, and (2) premises being required for bonafide personal lllC and occupation.\n\nThe petitioners contested the suit on various grounds and denied that they were in arrears and pleaded that they bad raised a dispute in respect of the standard rent within the time allowed\n\nFIRM ff, J. v. SfflVLAL (Vaidialingam, J.) 399\n\n~Y law.\n\nThey also contended that the landlord's requirements for use of occupation was not bonafide.\n\nBoth the trial court as well u the Appellate Court, the Extra Assistant Judge, Surat, have concurrently rejected the plea of the respondent that he required the premises bonafide for personal use.\n\nBoth the courts held that the petitioners have not raised any dispute about the standard rent within one month of service of suit notice either by prefering a standard rent application or by sending a reply to the suit notice raising such a dispute.\n\nOn t1$ basis both the courts held that the respondent-plaintilf is entitled to recover possessio11 of the premises on the ground of non payment of rent under Section 12\n\n(3) (a) of the Bombay Rent Act and accordingly passed an order directing ewction of the petitiioners from Che suit pi'emises.\n\nThe petitioners filed Civil Revision Application No. 1353 of 1970 before the Gujarat High Court challenging the decison of the two subordinate courts ordering their eviction. The High Court summarily rejected the said application by its order dated December 22, 1970.\n\nThe petitioners filed Special Leave Petition No. 342 of 1971 seeking special leave to appeal against the decision of the Gujarat High Court.\n\nIn the special leave petition it has been stated that the appeal raises important questions of law relating to the scope and applicability of Section 12 (33) (a) of the Bombay Rent A.ct. which applies in all material particulars to both the States of Maharashtra and Gujarat.\n\nIt has been further stated that there is a direct conflict regarding the interpretation of this section between the Full Bench of the Bombay High Court and the Gujarat High Court.\n\nAccording to the petitioners, the >lombay High Court has held that the matter will not fall under Section 12 (3) (a) even in those cases where a dispute in respect of standard rent has been raised in the written statement, whereas the Gujarat High Court has held to the contrary and, therefore, there is a direct conflict between the two High Courts on this point.\n\nAlong with the special leave petition the petitioners have filed C. M. P. No. 854 of 1971 praying for the stay of operation of the order of the Gujarat High Court in Civil Revision Application No. 1353 of\n\n1970.\n\nIn view of the conflict between the Bombay and Gujarat High Courts regarding the interpretation of the above section, this Court granted special leave by its order dated February IS, 1971.\n\nThis Court further granted exparte stay pending disposal of the notice of motion, which was made returnable within three weeks.\n\nThe respondent entered appearance and filed his count~ aflidavit in C. M. P. No. 854 of 1971.\n\nIn the counter-affidaVlt the respondent has made. two prayers, namely. (I) to revoke the\n\n400 SUPREME COURT REPOR'lll [1971] SUPP. s.c.R.\n\nspecial leave granted to the petitioners and (2) to dissolve the order of stay granted exparte.\n\nIn order to clarify the prayers made in C. M. P. No. 854 of 1971, the petitioners have filed C. M. P. No. ' 2282 of 1971 requesting permission to amend their original application C. M. P. No. 854 of 1971 by stating that the relief asked for is for, stay of eviction of the petitioners from the suit premises and to gran't stay of operation of the judgments of the trial court as well as of the Appellate Court. Reading the two applications it is clear that too petitioners seek relief from dispossession pending the disposal of the appeal by this Court.\n\nWe will deal with the prayers for grant of stay of dispossession after disposal of the plea raised by the respondent that the special leave granted by this Court should be revoked.\n\nThe grounds on which the respondent requests for cancellation of special leave are that the petitioners have completely misled this Court in regard to the true facts of the case and that they are guilty of suppressio veri or suggestitJ /al~ ..\n\nThe bone of contention in this regard as pointed out by Mr.\n\nI. N. Shroff, learned counsef for the respondent is that the Full Bench decision of the Bombay High Court, which is stated to be in direct contlict with the decision of the Gujarat High Court has never been placed before the Gujarat High Court when it dismissed. in limine C. R. P. No. 1353 of 1970.\n\nMr. S. T. Desai, learned counsel for the petitioners, pointed out by reference to the special leave petition that there bas been no attempt by his clients to mislead this Court and he further urged that all the facts have been stated correctly. He admitted that it has been mentioned in the special leave petition that there is a direct contlict between the Bombay and Gujarat High Courts in the matter of interpretation of Section 12 (3) (a) of the Bombay Rent Act.\n\nThis plea, being a legal contention was available to the petitioners and they were perfectly justified in placing before this Court the contlict so that it may be resolved one way or the other.\n\nThe statement regarding the contlict made in the special leave petition is also true.\n\nAt the outset we may clear the ground by stating that Mr.\n\nS. T. Desai, learned counsel for the petitioners, desired us to proceed on the basis that there is nothing on record to show that the Full Bench decision of th~ Bombay High Court was placed before the Gujarat High Court when C. R. P. No. 1353 of 1970 was being heard.\n\nWe will now refer to the statements made in the special leav~ petition, which are relevant for the purpose of deciding whether there has been any untrue statement made by the petitioners. Jn.\n\nFIRM H. ], v. SHJYLAJ. (Y, aldialinghtra then he would have succeeded in view of the Full Bench judgment of the Bombay which squarely applies to the facts of this case, even accepting all findings of fact against the petitioners.\n\nA true copy of the Bombay Higb Court Full Bench judgment is annexed hereto as Annexure B and a true copy of the judgment of the lower appellate court is annexed hereto to as Annexure C.\"\n\nThe true copy of de Full Bench judgment of the Bombay High Court, referred to in ground No. XVI is the one in Special Civil Application No. 781 of 1968 decided on August 17, 1970.\n\nIn the counter-affidavit filed by the respondent in C. M. P. No. 854 of 1971 in paragraph S, after referring to the fact that the petitioners are making a grievance about the summary dismissal of the C. R. P. No. 13~;3 of 1970 by the Gujarat High Court on the ground that' the said decision is in conflict with the Full Bench decision of the Bombay High Court, referred to above, it is stat ed:\n\n\"The enquiries made by me show that the Petitioners had not produced bc:fore the Gujarat High Court a Certifl. ed or even an Ordinary copy of the said Full Bench Jud~ ment of the Bombay Hjgh Court nor had the petitioners at the admission st1ge of the Petitioners' Civil Revision Petition before the Gujarat High Court cited or referred to the said Full Bench decision.\n\nIf the information received by me is o>rrect and I believe it to be correct, it is wholly improper for the Petitioners to approach this\n\nFIRM H. J, J, SHIVLAL (Yaidiall11gam, J.) 403\n\nHon'ble Court and to contend that the Gujarat High A Court is in error in not examining and following the Full Bench decision of the Bombay High Court.\"\n\nIn Paragraphs 8 and 9 it is stated :\n\n\"8. The conduct of the Petitioners would further appear to be improper because they do not appear to have taken up this point in their Civil Revision Petition No. 1353 of 1970 filed by them in the Gujarat High Court.\n\n9. It, therefore, appears that the Petitioners have completely misled this Hon'ble Court in regard to the true facts and have thereby obtained from this Hon'ble Court Special Leave to Appeal, which, in all probability, this Hon'ble Court would not have been pleased to grant had the Petitioners placed before this Hon'ble Court true facts of the case.\"\n\nTherefore, it will be seen from the material averments of the respondent that his bone of contention regarding the statements of fact by the petitioners is that the statements contained in the relevant paragraphs of the special leave petition, adverted to earlier, give the impression that the Full Bench decision of the Bombay High Court was placed before the Single Judge of the Gujarat High Court when C. R. P. No. 1353 of 1970 was being disposed of.\n\nThat thesaid judgment was not brought to the notice of the High Court is clear from the fact that no grounds were taken in the Civil Revision Petition regarding any conllict between the Gujarat and the Bombay High Courts on identical provisions of the statute.\n\nThe petitioners have in their rejoinder affidavit controverted the allegation that they have, in any manner misled the Court.\n\nThey have, on the other hand, stated that the conllict between the two High Courts has been stated in the special leave petition, which is a fact and it was mainly on that basis that the special leave was asked for and granted by this Court.\n\nThey have further stat ed that there has been no suppression of many material facts or\n\nmis-statement of facts which misled the Court in granting the special leave.\n\nMr. I. N. Shroff has referred us to the decisions of this Court wherein it has been held that when there has been an untrue stall> ment of a matter of importance or when there has been a misstatement as to valuation so as to mislead the Count to exercise its\n\ndilcretion in a party's favour or when a false statement has been made on material facts, this Court had revoked the special leave already granted.\n\nS_UPREME COURT REPORTS\n\n(1971) SUPP. s.c.R.\n\nThere can be no controversy that if the petitioners have made an untrue averment ie1arding material statements or false state-· ment of matters of importance or a deliberate untrue statement of material facts so as to mislead this Court or if there has been any suppression on any poi:nt of importance, the special leave granted by this Court will have to be revoked.\n\nBut the question is whether in the circumstances of ithe case the petitioners have made any such mis-statement or untrue. statement of matters of importance.\n\nIn S. R. Shetty v. Phirozeshah Nusserwanji Golabawalla and another\n\n(') special leave was revoked on the ground that the valuation had been deliberately inflated by the parties with a view to getting over the preliminary hurdle regarding valuation.\n\nIn Hari Narain v.\n\nBadri Das (1), it was observed by this Court :\n\n\"It is of utmost importance that in making material statements and se~:ing forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and mis-leading.\n\nThat is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked.\"\n\nIn Rajabhai Abdul Rehman MW1shi v. Vasudev Dhan; ibhai Mody (') this Court after referring to the previous decision, cited above. observed as follows :\n\n\"Exercise of the jurisdiction of the Court under Art. 136 of the Constitution is discretionary : it is exercised sparingly and in eceptional cases, when a substantial question of law falls to be determined or where it appears to the Court that interference by this Court is necessary to remedy serious injustice.\n\nA party who approaches this Court invoking: the exercise of this overriding discretion of the Court must come with clean bands. .If there appears on his part any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of t.he discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal.\"\n\n(0 C.A.No. 155of1963 decided on S-4·1963. (2) [1964] 2 S. C.R. 203.\n\n(3) [1964) 3 S. C. R. 480.\n\nPIRM H. j, •• SH!VLAL (llu{dialingam, J.)\n\nIn Sita Bai (dead) by her legal representative and another v.\n\nSonu V anji W ani and others (i) this Court revoked special leave on the ground that on matter of importance the appellants therein had made untrue statements before this Court.\n\nRecently in Shankar Mtidhoji Nemade v. Chisuji ]anaji Bhadke and others (') this Court reiterated the principles laid down in the above decisions.\n\nBut on facts it was held that there has been no untrue or false averment regarding material facts.\n\nHaving due regard to the principles laid down above and applying them to the case on hand, we are of the opinion that the request of the respondent for revoking special leave granted has to be rejected.\n\nWe are also satisfied that there bas been no false or untrue averment on material facts made by the petitioners for the purpose of misleading this Court.\n\nParagraph No. 2 of the special leave petition refers to the conflict between the Gujarat and Bombay High Courts with regard to the scope and apr!icability of Section 12 (3) (a) of the Bombay Rent Act.\n\nThe contrary view taken by the Gujarat High Court is the one reported in Chuni/al Shii/kJ/ v. Chimanlal Nagindas ('), which has been followed by the two subordinate courts.\n\nNo doubt the High Court bas summarily rejected the Civil Revision Petition. Therefore, what is stated in paragraph No. 2 is a pure statement of the legal position and factually it is correct. We have also referred to the grounds Nos. 2, 3 and 16 which are purely legal contentions.\n\nThe contention of Mr. Shroff, learned counsel for respondent is that a reading of these grounds gives the impression that the attention of the Gujarat High Court was drawn to the Full Bench decision of the Bombay High Court when the Civil Revision Petition was disposed of.\n\nAssuming it is so, in our opinion, it cannot be stated that there is any mis-statement or untrue averment contained in these grounds.\n\nIt must be remembered that they are legal contentions taken in the grounds attacking the judg ment of the Gujarat High Court.\n\nWe fail to see in what other manner a party can draw the attention of this Court to a conflict between two High Courts with regard to the interpretation of a substantially similar provision of a statute. It is needless to state that if a party wants to have a particular legal position settled in a High Court, reconsidered on the basis of a different decision on identical point by another High Court and specially with regard to the same statute, he must draw the attention of the learned Judge to that decision bearing on the point in question. This will be a very proper thing for a party to do.\n\nBut that is far from saying\n\n(I) C. A. No. 982of1965 decided on 25-4-1968.\n\n(2) C. A. No. SS of 1967 decided on 8-9-1970.\n\n(3) 7 C. L. R. 945.\n\n406.\n\nSUPRllMB COURT REPORTS f/911] SUPP. s.c.a\n\nthat if he has omitted t•> place a particular decision of another High Court on an identical matter, but nevertheless when the judgment so given is before a. higher Tribunal, he should not be allowed to challenge the decision on the ground that the other High Courts have taken a difforent view.\n\nFor instance, if a matter is disposed of by a Division Bench of the same High Court and a similar matter is disposi:d of by a Single Judge on the next day without being made awa.re of the decision of the Division Bench in our opinion, it will be: perfectly open to the party aggrieved by the judgment of the Single Judge, when filing an appeal against that judggment to urge that it is contrary to the Division Bench decision of the same court. though that judgment was not brought to the notice of the Single Judge.\n\nThe grounds taken on legal points should not, in our opinion, be confused or mixed up with the averments regarding material facts or matters of importance.\n\nWe are of the opi11ion that none of the statements in the special leave petition relied on by Mr. Shroff can be considered to be untrue or false statements on material facts or matters of impor lance.\n\nTherefore, the prayer of the respondent for revoking the special leave granted will have to be rejected. The C. M. Ps.\n\nNos. 2282 of 1971 is allowed and the prayer in C. M. P. No. 854 of 1961 will stand suitably amended.\n\nRegarding the stay application, it is ordered that there will be a stay of dispossession of the petitioners from the premises pend ing disposal of the app1l3l by this Court provided, (!) the petitioners deposit in the trial court within one month from today the entire arrears of rent ; and (2) the petitioners deposit in the trial court rent for every month on or before the I 0th of the succeed ing month.\n\nThe respondent will be at liberty to withdraw the rents so deposited unconditionally and without prejudice to his contentions in the appc:l. If the petitioners fail to deposit the arrears or COil!mit two consecutive. defaults in depositing the monthly rent, the stay granted will stand vacated and the respondent will be entitled to take delivery of the properties. It is also recorded that Mr. S. T. Desai, learned counsel for the petitioners, has undertaken on behalf of the firm and its partners ihat they will deliver possession of the premises within three months from the date of judgment in th.e appeal, in case the appeal is dismissed.\n\nThere will be no order as to costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 18, "entities": [{"text": "FIRM OF HARBANSLAL JAGMOHANDAS & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "FIRM OF HARBANSLAL JAGMOHANDAS & ANR", "offset_not_found": false}}, {"text": "A. N. RAY, JJ", "label": "JUDGE", "start_char": 97, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "s. 12(3)(a)", "label": "PROVISION", "start_char": 1114, "end_char": 1125, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(3)", "label": "PROVISION", "start_char": 1569, "end_char": 1577, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 4941, "end_char": 4951, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 6327, "end_char": 6337, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 7019, "end_char": 7029, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 7433, "end_char": 7443, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 10332, "end_char": 10342, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 11359, "end_char": 11369, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 11690, "end_char": 11700, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 13578, "end_char": 13588, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 14126, "end_char": 14136, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 14420, "end_char": 14430, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 20409, "end_char": 20417, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 2 S. C.R. 203", "label": "CASE_CITATION", "start_char": 21257, "end_char": 21277, "source": "regex", "metadata": {}}, {"text": "[1964) 3 S. C. R. 480", "label": "CASE_CITATION", "start_char": 21284, "end_char": 21305, "source": "regex", "metadata": {}}, {"text": "Section 12", "label": "PROVISION", "start_char": 22358, "end_char": 22368, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_407_411_EN", "year": 1971, "text": "STATE OF MADRY.<\\ PRADESH\n\n11.\n\nSHIV KUNWARBAI ETC.\n\nApril 20, 1971.\n\n[S. M. SIKRI, C. J., G. K. MiTrER, K. S. HEGDE, A. N. GROVB!I.\n\nAND P. JAGANMOHAN REDDY, JJ.]\n\nMadhya Pradsh Government Premises (Eviction) Act, 1952, JJ. 3 and 4-Eviction can be only from Governmenr premises-Former ruler oJ Indian State claiming certain properties to be hi• private property-Acceptance of hi~ claim in respect of some of these propertieJ does not mean that the properties in respect of which the claim ha.t not been accepttd become property of Government.\n\nThe ruler of the erstwhile State of Jhabua granted jagirs to N and R.\n\nThe Jagirs were forfeited in 1943.\n\nOn March 30, 1948 tho Ruler mado sn order purporting to declare a large number of immovable properties, including certain houses in the occupation of N and R as his private properties. On April 1, 1948 the Ruler made another order purporting to grant to N and R the right to continue to occupy the said houses during their life time without any right to sell, mortgage or create any charge thereon. On June 29, 1948 the State of Jhabua merged in the State of Madhya Bharat.\n\nThe Government of the State of Madhya Bharat did not recognise the claim of the erstwhile Ruler of Jhabua to all the properties claimed by him as his private properties. The properties in the occupation of N and R were among those not recognised as the Ruler's private property. The possession of N on the Properties in her occupation was not disturbed in her lifetime. On April 30, 1962 the Executive Engi neer District Dhar, submitted an application under s. 3 read with s. 4 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 for the eviction of R and the successorin interest of N from the properties res pecfjveiy occupied by them. Orders of eviction made by the SubDivisional Officer were upheld by the Collector in the appeals filed before him. The High Court however allowed tho writ petitions filed by N's successors-in interest and by R and quashed the orders of eviction against them. The State of Madhya Praesh appealed.\n\nHELD: The appeal must be dismissed\n\nThe evidence showed that some only of the properties set forth in the declaration of April, I, 1948 and claimed by the Ruler as private property \"were accepted as such\" by tho Government of Madhya Bharat: there was no finding with regard to the others that they appertained to G the Ruler as distinct from his private properties. In order to succeed tho appellant had to show that the properties had been confiscated by tho Ex\n\nruler and bad ceased to belona to N aild R. [4101!-GJ.\n\nAs the properties originally belonaed to N and R there mnst be some\n\nidence of the displacement of their title before the Eviction Act could be made applicable to them. The order of April 1, 1948 passed by the Ruler could not be interpreted as an order of conliscation. It wu not H proved that tho ownership of the properties bad passed to the Ruler and thereafter fint to tho State of Madhya Bharat and then to tho State of\n\nMadhya Pratlelb. [4.lOO,.JQ.\n\nSUPREME COURT RBPORTS [1971] SUPP. s.c.R.\n\n.l In order to enable Go•,.rol!ieilt to take ptoceedings successfully under either s. 3 or 4 of the Act, it must satisfy the Court that the premises iD respect whereof action was taken was Government premises. As the State failed to establish thlS fliet. thCS question of eviction under the Act could never arise. [411B].\n\nCML APPELLATE JURISDICTION : Civil Appeals Nos. 1164 Ji and 1165 of 1967.\n\nAppeals from the judgment and order dated December l, 1965 of the Madhya Pradesh. High Court, Indore Bench in Misc. Petition Nos. 18 and 19 of 1%4. ·\n\nM. S. K. Sastri, M. N. Shroff for I. N. Shroff, for the appel- C !ant (in both the appeali.).\n\nB. R. L. Iyengar, R. A. Gupta and K. B. Rohatgi, for the respondent (in C. As. No. 1164 of 1967).\n\nP. C. Bhartari, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondent (in C. A. No. 1165 of 1967).\n\nThe 1 udgment of the Court was delivered by Mitter, J~ The St1te of Madhya Pradesh has come up in appeal to this Court from two orders of the State High Court allowing two writ petitions filed by the two respondents herein for quashing the orders of eviction made against them under Section 3 of the Madhya Pradesh Govemmen Premises (Eviction) Act.\n\nThe facts in Civil Appeal No. 1164 of 1967 are as follows.\n\nMany years back, a former Ruler of the Indian State of Jhabua in Central India had given a jagir to his mistress, Paswanji Smt.\n\nNavratanbai.\n\nNavratanbai had either purchased or constructed two houses on Collegi: Marg.\n\nAccording to the Writ Petition filed in the High Court the acquisition was out of her private funds.\n\nThis was not however admitted in the return to the petition. The successor of the forme:r Ruler Dilipsingh purported to forfeit the jagir in the year 1943 The order of forfeiture is not on record but is sought to be heme out by an order dated !st April, 1948, evidently made in anticipation of the merger of the State in the Union of Madhya harat which took place on June 29, 1948. The order addressed to Paswanji Navratanbai ran :\n\n\"In September 1943 your jagir was confiscated to the State and you were granted Rs. I 00 per month by way of allowance vide Parwana No. 1735 dated 23-9-1943 and this amount was being paid to you on behalf of the Huzur from the civil list because such types of 11llowances etc. are paid from it. But now as new arrangements arc being\n\nll. p, STA11 v. KUNWARBAI (Mitfer, J.) 409\n\nmade regarding Ilic states of Malwa: arid tliere is li'.keli- A hood of reduction in the percentage of the civil list, therefore, the aforesaid montJily allowance shall henceforth be paid to you every month from State Treasury from generation to generation.\n\nYou may reside i'n the two big houses of Khasgi dur- B ing your lifetime in which you are residing at present.\n\nAfter your lifetime both these houses shall be taken in possession of the Huzur. You shall have no right to sell or mortgage or create any charge on these houses.\"\n\nThere is another Huzur order on record dated 30th March, 1948\n\npurporting to declare a large number of imll!ovable properties as C 1hc private property of the Ruler and the rulmg family.\n\nAmong the properties set out at the foot of the order are mentioned : \"6. (e) All houses which are occupied by Bapu Ram singh.\n\n(f) All houses which are in the occupancy of Navra- D' tanbai\".\n\nWhen the question of settling the list of private properties of the Rulers of the integrating Estates in Madhya Bharat came up before the Government of India. the Political and External Department of the Madhya Bharat Secretariat passed an order recording a E decision regarding the settlement of private properties of the State of Jhabua. The memorandum dated July 25, 1949 of the Madhya Bharat Secretariat, Political and External Department, shows that each department concerned had to take action for handing over all the property to the Ruler concerned and to see that no property out of the properties belonging to the Ruler and/ or the State before the formation of Madhya Bharat was left with the Ruler F excepting the properties in the enclosed list. The relevant list for the Ruler of Jhabua did not include the properties occupied either by Hapu Ramsingh or Paswanji Navratanbai.\n\nPaswanji Navratanbai protested against the inclusion of her houses in the list of private properties made out by the Ruler of Jhabua and addressed a memorandum to the Raj Pramukh of Madhya Bharat Union for G .amendment of the inventory submitted by the said Ruler: No steps cappear to have been taken to evict Navratanbai from the said premises in her lifetime.\n\nOn 30th April 1962 the Executive Engi ncer District Dhar, submitted an application under Section 3 read with Section 4 of the Madhya Pradesh Government Premises !Eviction) Act, 1952 for eviction of the respondents in Appeal No. ti 1164 of 1967 from the two propertle4 formerly. belong~ to Navnitanbai before the Sub Divisional Offieer, .Ttia'bwi, eonstitufed the competent authority under the Act.\n\nAn order of eviction made\n\nSUPRBMI! COURT REPORTS [1971] SUPP. s.c.ll.\n\nby the Sub Divisional Olli1; er was upheld in appeal to the Collector.\n\nShivkunwarbai, widow of late Bapu Gordhansinghji, son of Navratanbai filed a writ petition in the High Court for quashing the said order. Appeal No. ll64/ 1967 is from the said order.\n\nThe facts in the other appeal i.e. 1165 of 1967 are similar to the facts just narrated.\n\nIn this case the same former Ruler had granted a jagir to his so:n Ramsingh by his mistress Paswanji Bhagirathibai.\n\nThe succeeding Ruler purported to forfeit the jagir and granted a monthly allowance of RS. 100.\n\nAn order similar to the one dated 30th March 1948 already mentioned was passed while the order of April l, 1948 affected Ramsingh as it\n\nid Navratanbai in the other case.\n\nThere was an order of eviction as in the other case followed by a writ petition to the High Court.\n\nThe central question in these two appeals is, whether the State of Madhya Bharat ever became entitled to these properties in the facts and circumstances mentioned which justified its attempt to evict the respondents under the provisions of the Act of 1952. This would depend on the finding as to whether these properties were taken over by the Union of Madhya Bharat following the merger of the State of Jhabua therein in 1949.\n\nThe fact that some only of the properties set forth in the declaration of 1st April 1948 and claimed by the Ruler as private property \"were accepted as such\" by the Government of Madhya Bharat does not lead to the inference that all the other items of property in the said declaration were taken over by an Act of State. There must be some positive evidence of such Act.\n\nIt is also possible that the list had wrongly included properties belonging to citizens of the State of Jhabua about which there was no adjudication.\n\nThe records only show that out of the list of properties submitted by the Ruler, a certain number of them was tre11ted by the Government of India as being his private properties.\n\nThere was no finding with regard to the others that they appertained to the Ruler as distinct from his private property.\n\nAs these proptrties originally belonged to the predecessors-in-interest of the respondent i.e. in C. A. 1166/1967 and the respondent in C. A. 1165/1967 there must be some evidence of displacement of their title before the Eviction Act could be made applicable to them.\n\nIn order to succeed in the appeals the appel- Jan t must first establish that the properties had been confiscated by the Ex-Ruler and had ceased to belong to Navratanbai or Bapu Ramsingh.\n\nThe order of April l, 1948 records the confiscation of the jagirs and does not record that the houses in the possession of Navratanbai were similarly confiscated, assuming that confiscation was possible by a mere order of this type.\n\nOn the other hand, the order shows that Bai Navratanbai was to have full use of the houses for her lifetime but she was not to sell or mortgage the\n\n14. p, STATE' ICUNWAl!.BAI (Mitter, /.)\n\nsame.\n\nThe declaration that after her lifetime the property would be taken possession of by the Huzur does not amount to an order of confiscation and a re-grant thereof for the donee's lifetime. If the properties remained the property of Navratanbai after the passing of the said order of 1948 nothing was done thereafter to show that she lost her interest in the properties or that the same passed to the Union of Madhya Bharat and from the said Union to the State of Madhya Pradesh. When attempts are made to deprive a person of his lawful inheritanee it must be shown by irreprochable evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking to eject the former lawful possessor. There is no such evidence in this case.\n\nIt follows that the properties, the subject matter of the two appeals. never became the properties of the Ruler of Jhabua ownership whereof passed to the Union of Madhya Bharat and from the Union to the State of Madhya Pradesh.\n\nSection 3 of the Madhya Pradesh Premises \\Eviction) Act, 1952 enables the competent authority under the Act to order inter alia that the person in unauhorised, occul\\llt'ion of any Governmll!lt premises to vacate the same within 30 days of the date of the service of the notice in terms of the section.\n\nSection 4 empowers the competent authority to assess damages on the ground of use and occupation by any person in unauthorised occupation of any Government premises.\n\nIn order to enable Government to take proceedings successfully under either of these sections, it must satisfy the Court that the premises in respect whereof action was taken was Government premises.\n\nAs the State failed to establish this fact the question of -eviction under the Act could never arise.\n\nIn tb.e result, the appeals are dismissed with costs.\n\nG.C.\n\nAppeals dismissed.", "total_entities": 13, "entities": [{"text": "STATE OF MADRY.<\\ PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "SHIV KUNWARBAI ETC", "label": "RESPONDENT", "start_char": 32, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "SHIV KUNWARBAI ETC", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 71, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 105, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY, JJ.", "label": "JUDGE", "start_char": 138, "end_char": 162, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1585, "end_char": 1589, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1600, "end_char": 1604, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3175, "end_char": 3179, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 4235, "end_char": 4244, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7756, "end_char": 7765, "source": "regex", "metadata": {"linked_statute_text": "Paswanji Navratanbai protested against the inclusion of her houses in the list of private properties made out by the Rule", "statute": "Paswanji Navratanbai protested against the inclusion of her houses in the list of private properties made out by the Rule"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7776, "end_char": 7785, "source": "regex", "metadata": {"linked_statute_text": "Paswanji Navratanbai protested against the inclusion of her houses in the list of private properties made out by the Rule", "statute": "Paswanji Navratanbai protested against the inclusion of her houses in the list of private properties made out by the Rule"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12182, "end_char": 12191, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 12486, "end_char": 12495, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_412_419_EN", "year": 1971, "text": "STATE OF MAHARASHTRA\n\nLAXMAN ABAJI Ii: ANR.\n\nA.j1rll 20, 1!171\n\n[C. A. VAIDIALIMGAM AND A. N. RAY, JJ.)\n\nHyderabad Abolition of Inams Act, 1954 (Act VIII of 1955)- Lant1 lord and Tenant-Relationship if continued to subsist between date of abolition of lnams vesting land in .rhe state and date of coming into force uf the entire A.ct.\n\nOn tho question whether tho relationship of landlord and tenant continued to subsist between July 20, 1955 when tho inams wore abolished and tho land vested in tho State under tho Hyderabad Abolition of loams Act, 1954 (VIII of 19.SS) and July I, 1960 when a notification under '\n\n1(3)(b) of the Act made the entire Act applicable,\n\nHELD: Though the loams were abolished and the land vested in the State bv reason of s. 3(1) of the Act the rights and interests ol landlord and tenant mentioned in s. 3(2) (b) wore preserved by s. 33 inasmuch as s. 3(2) els. (d), (g}, (h) and (i) did not come into effect until July I, 1960.\n\nThe crucial date for grant of o'cupancy rights under the 1955 Act is July 1, 1960 when the entire Act including, in particular, the provisions regard ing grant of occupancy rights and els. (d), (g), (h) and (i) of s. 3(2) came into effect. The relation between landlord and tenant ceased on July J,\n\n1960 and if any tenant surrendered possession prior to July I, 1960, and the inarndar accepted such surrender and remained in possession of the land on the relevant date, i.e., July I, 1960, the inamdar would be entitkd to grant of occupancy rights. On the other hand if the tenant claimed to be in possession of the land on the relevant date and the inamdar also claimed to be in possession the Government will have to ascertai:t as to who was lawfully in possession on the relevant date. [416E; 417G].\n\nDattatraya Sadashiv Dand v. Ganpati Raghu Gao/I, 67 B.L.R. 521, approved.\n\nJi'\n\nCIVIL APPELLATE JuRISDICTION : Civil Appeals Nos. 2531\n\nand 2533 of 1966.\n\nAppeals from the judgments and orders dated April I, 1965 of the Bombay High Court in Special Civil Applications Nos. 804 and 697 of 1964 respectively.\n\nM. C. Bhandare, Badri Das Sharma for S. P. Nayar, for the appellant (in both the appeals).\n\nW. S. Barlingay and A. G. Ratnaparkhi, for respondent No. 1 (in C. A. No. 2533 of 1966).\n\nB The Judgment of the Court was delivered by Ray, J.-These two appeals are by certificate from two judgmts dated I April, 1965 of the Bombay High Court.\n\nM~ASHTllA V. LAXMAN{.Rqy, J.) 41~\n\nlloth the appeals turn on the question as to wJleUier the la- A. tionsbip of llindlord and tenant continued to subsist between 20 J .uly, 1955 when the irt\"Uh-section\n\n(2A) in section _ of the 1955 Act The 1959 Amendment Act came into force on 1 July, 1960 by a gazette notification dated 3 June, 1960. !here was another 'gazette notification on 3 June, ll 1960 No. HDA-1060-IV-(b)..L-that in exercise of the powers conferred by clause -section (3) of section I of that Act, the full Jan(! revenue, nayaable in respect of every inam abolished and vesting in the Government und•!r section 3 of that Act, shall be recovered from !he inamdar of such inam as if he were the occupant of such land and, .on the commencement of the said provisions of that Act, it shall be recovered in acco.rdanc.e with those provisions\".\n\nSection 4 of the 1956 Amendment Act provided for recovery of land revenue from the inamdar with effect from the date of publication of the 1955 Act, namely, 20 July, 1955.\n\nSection 4 -of the 1956 Amendment Act was to remain effective and operative till the commencement of the provisions mentioned in section l (3) (b) of the 1955 Act, namely, 1 July, 1960.\n\nSection 4 of the 1956 Amendment Act provided for recovery of land revenue from' the inamdar as if he were the occupant of such land.\n\nThe words \"as if he were the occupant of such land\" indicate that the inamdar was to be treated in possession of the inam.\n\nThis was necessary because the grant of occupancy rights mentioned in sections 5 and 6 of the 1955 Act did not come into effect until 1July,1960.\n\nThe dominant idea was to continue the relationship of landlord and tenant in respect of the inam land and to look to the inamdar only for land revenue by treating him to be an occupant.\n\nSections 4, 5, 6, 7 and 8 of the 1955 Act deal respectively with registration of inamdars, kabiz-e-kadim, permanent tenant, protected tenant and non-protected tenant as occupants.\n\nThese occupancy rights under sections 4 to 8 could not be granted before l July, 1960 when those sections came into force. Upto 1 July.\n\n1960 the mutual rights _and obligations of the landlord and the tenant were preserved by providing inter alia in section 33 of the 1955 Act, the application of the Tenancy Act. Again, after the abolition of the inams by the 1955 Act the right of the landlord to be in possession was preserved. Similarly, the right of the tenant to continue in possession was preserved. Neither the right of the landlord nor the right of the tenant was any right which flowed from any authority or grant of the Government. , These rights emanated from the protective provisions of the statute. It is be;; ause of the continuance of the mutual rights and obligations of the landlord and the tenant that section 4 of the 1956 Amendment Act recognised the inamdar \"as if he were in occupation of the land\" for the purpose of land revenue.\n\nThis liability of the inamdar to pay land revenue was provided in order to enable !lie inamdar to enjoy all his rights including that of revenue in the inam land.\n\nIt may also be noticed here that although the scheme of the 1955 Act was to abolish the inams and to vest the land in the State, there was no provision in the Act empowering the Government to resume possession.\n\nThe relationship between inamdar and his tenant came to an end on 1 July, 1960 when the State by reason of the coming into force of sections 4 to 8 of the 1955 Act granted occupancy rights to persons mentioned in those sections.\n\nIn Civil Appeal No. 2531 of 1966 respondent No. 2 Gajya was inamdar of survey No. 22 measuring 28 acres 15 guntbas 27-1 S.C.!ndia/71\n\n4i8 SUPREME COURT 11.BPORlll [1971] SUPP. s.c.R.\n\nsituated at Azambag Village, '!aluka Gangakhed at Hyderabad.\n\nRespondent No. 1 Laman claimed to be a tenant on the basis of the lease executed by respondent No. 2 on 9 April, 1950. After I July, 1960 the Tahsi!dar of Gangakhed too)<: necessary steps to co.nfer the occupanc)'. nghts on respondent No. 2 in regard to the said land as he was m -possession of the land on the date of vesting, namely, 20 July, i 955.\n\nRespondent No. 1 objected to the same and . claimed that he was entitled to the occupancy rights under section 6 of the Act as he was lawfully in possession of the said land on 1 July, 1960.\n\nThe Tahsildar by his order dated 20 October, 1962 rejected the application of respondent No. 1 and conferred the occupancy rights on respondent No. 2 as the latter was .in possession of the disputed land on the date of vesting. Res pondent No. I being aggrieved by the order preferred an appeal to the State Government.\n\nThe appeal was dismissed on 24 January, 1964.\n\nRespondent No. 1 thereafter filed an application under Article 227 of the Constitution in the Bombay High Court.\n\nThe High Court by an orde1 dated 1 April, 1965 set aside the order made by the Government and the Tahsildar and remanded the matter to the Tahsildar to hear all parties , in<.1uding the inamdar and thereafter decide who was .lawfully in possession of the land on I July, 1960.\n\nThe High Court took the view that the crucial date for conferment of occupancy rights under the 1955 Act would be 1 July, 1960 when the entire 1955 Act came into operation and the relationship of landlord and tenant which was preserved even after the date of vesting,. namely, 20 July, 1955 came to an end on 1 July, 1960.\n\nIn Civil Appeal No. 2533 of 1966 respondent No. 1 was the inamdar of three pieces of land measuring In all 69 acres and 3 7 gunthas situated at village Paranda, Taluka Paranda, district Osmanabad.\n\nRespondent No. 2 was the tenant of respondent No.\n\nI in respect of those lands and was in possession of those lands on 20 July, 1955.\n\nSome time in the months of May and June, 1956 respondent No. 2 'oluntarily surrendered his tenancy rights in the land to respondent No. 1.\n\nThe surrender was accepted by the inamdar. The posse:>sion of the land was delivered to respondent No. !.\n\nAfter the coming into effect of the entire 1955 Act on I July, 1960, the Tah:>ildar notified that respondent No. 2, the tenant was entitled to o:cupancy rights under the provisions of the 1955 Act.\n\nRespondent No. 1 objected and claimed that he was entitled to the occupancy rights of the land under section 6 of the 1955 Act as he was lawfully in possession of the land on 1 July, 1960 and the respondent No. 2 had surrendered his tenancy rights in 1956.\n\nThe Tahsildar by his order dated 30 June, 1963 conferred the occupancy :rights on respondent No. 2, the tenant as he was in possession on 20 July, 1955. Respondent No. I, the inamdar preferred an appeal to the State Government. The State\n\nMAHARASHTRA V. LAXllAN (Ray, J.)\n\nGovernment rejected the appeal on 24 January, 1964. The inam- .dar thereafter made an application to the Born bay High Court under Article 227 of the Constitution.\n\nThe High Court by an order dated 29 March, 1965 held that the material date for the purpose of grant of occupancy rights was 1 July, 1960 and not the date of vesting of the land in the State on 20 July, 1955.\n\nThe High Court further held that on I July, 1960 the inamdar was lawfully in possession of the land.\n\nThe High Court directed that the Government should recognise the inamdar as occupant under section 6 of the 1955 Act.\n\nThe High Court was right in both the orders.\n\nThe crucial date for grant of occupancy rights under the 1955 Act is I July,\n\n1960 when the entire 1955 Act including in particular the provisions regarding grant of occupancy rights and clauses (d), (g), (h) and (i) of section 3(2) of the 1955 Act came into effect. The Government became entitled to the possession of the land. The Government became entitled to -grant of occupancy rights.\n\nThe relationship between landlord and tenant ceased on I July, 1960.\n\nIf any tenant had surrendered possession prior to 1 July, 1960 as happened in Civil Appeal No. 2533 of 1966 and the inamdar accepted such .. surrender and remained in possession of the land\n\non the relevant date 1 July, 1960 the inamdar would be entitled to grant of occupancy rights.\n\nOn the other hand, if the tenant claimed to be in possession of the land as in Civil Appeal No. 25311\n\nof 1966 on the relevant date 1 July, 1960 and the inamdar also claimed to be in possession, the Government will have to ascertain as to who was lawfully in possession on the material date I July, 1960.\n\nThe Bombay High Court in Dattatraya Sadashiv Dhand v. ief Justice of the Court or such other Judge or oflicer of the Court as he may direct i.e. his nominee. The proviso emp::>wers the Governor of the State to require by Rule in certain cases to 1nake appointments after consultation with the State Public Service Commission. Clause (2) of the Article contains twr; important provisions.\n\nThe first is that conditions of service of officers and servants of a High Court shall be such as may be prescribed by Rules made by the Chief Justice or his nominee. This is however subject to provisions of any law made by the legislature of the St!.te. The second is that the Rules so far as thcy relate to salaries, allowance and pensions require the approval of the Governor. [427H-428BJ.\n\nThus cl. (1) read with cl. (2) of Art. 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court This is subject to any legislation by the\n\nState Legislature but only in respect of conditions of service.\n\n[429AJ\n\nIa the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under cl. (1). The •P proval of the Governor as noticed in the matter of the Rules is confined only to such rules as relate to salaries, allowances, leave or pension. This exception had to be made because the finances have to be provided by the Govern1r:ent and to the extent there is any involvement of expense the Government has to 'approve of it.\n\n[429B; 430A]\n\nThe object of Art. 229 is to secure and maintain the indepeodenre of the Higl! Courts. The anxiety of the Constitution makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension to or in respect of officers and servants of the Court at the same level as the salaries and\n\nallowancs of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Under the provisions of Art. 229(3) and Arts. 202, 203 and 204 all these expenses are charged on and appropriated from tho Consolidated Fund of the State.\n\n[428C-H]\n\n[Provisions of Art. 229 contrasted with those of Art. 148 relating to Auditor General of India and Art. 187 relating to the staff of the House o.f Legislature.] [429E-H]\n\n(iii) On the facts of the present case it could not be said that there was any financial burden involved in tho appointment of tho appellant as Secretary-cum-Selection Grade Stenographer and it was difficult to understand ho\\v the Government could interfere in the choice of the person who was appointed or insist on his having certain type of qualifications. The post of selection grade stenographer-cum-secretary to .Chief Justice had been sanctioned vide the letter dated April 27, 1959. The appellant was appointed to that post by the Chief Justice who was competent to do so under Art. 229. If there were any technical difficulties they could be easily sorted oui by mutual cooperation which is essential between the Chief Justice of, the High Court and the State Government in such matters.\n\nThe unusual step of tho Accountant General withholding the pay slips under the d!rections of the Government bad no legal justification or warrant. [431G-432A]\n\nOVJL APPELLATE JURISDICTION : Civil Appeal No. 2023 of 1968.\n\nAppeal from the judgment and order dated May 9, 1968 of the Assam and Nagaland High Court in Civil Rule No. 377 of 1965.\n\nS. V. Gupte, R. B. Datar and S. N. Prasad, for the appellant.\n\nM. N. Phadke and Naunit Lal, for respondents Nos. I and 2.\n\nSUPRE;\\IE COURT RBPORTS .[1971) SUPP. S.C.ll.\n\nA The Judgment of the Court was delivered by\n\nGrover, J.-This is an appeal by certificate from a judgment of the High Court of Assam & Nagaland dismissing a petition filed by the appellant unde:r Article 226 of the Constitution.\n\nIt is necessary to set out the facts and the relevant correspon dence in order to determine the points which have to be decided.\n\nThe Assam Government had sanctioned the post of Secretary to the Chief Justice on a temporary basis with a pay scale of Rs. 400- 2().500 for a period of one year with effect from July 13, 1948. It appears from the letter of the Registrar of the High Court to the Secretary, Judicial Department, dated August 25, 1955 that although the said post had been sanc:tioned but there was hardly sufficient work for a whoile time Secretary at that time.\n\nThe post was not filled up and the: duties of the Secretary were performed by the Stenographer attached to the Chief Justice. He got a special pay of Rs. 50 per mensem which had been sanctioned by the Government in 1950.\n\nThis arrangement continued till February 20.\n\n1955. From February 21, 1955 a Lower Division Assistant was appointed to perform the duties of Private Secretary in addition to his own duties. He also got a special pay of Rs. 50 per mensem.\n\nBy the aforesaid letter th~ view of the Chief Justice was conveyed that services of a whole time Secretary were indispensible and necessary for proper discharge of administrative functions and work of a confidential character which had gradually Increased.\n\nRequest was, therefore, made to the Government to sanction the post of a whole time Secre:tary to the Chief Justice permanently on the same scale which had been sanctioned in 1948.\n\nIt may be mentioned that at that time the Stenographers' Service in the High Court consisted of 7 permanent posts.\n\nThere was one temporary post of Secretary to the Chief Justic1:.\n\nOut of the 7 permanent posts there were 4 posts of Stenographer Grade I, and 3 posts of Stenographer Grade II.\n\nIt seems that the Government had reorganised the Secretariat Stenographers Service with effect from May 21, 1955.\n\nThe Selection Grade Stenographer was given the scale of pay of Rs. 400-20-600 plus allowances.\n\nOn February 14, 1956 the Registrar addressed a letter to the Chief Secretary saying that the Chief Justice had reorganised the Stenographers Service in the High Court (presumably on the same lines as had been done by the Government) with a view to providing them with sufficient incentive.\n\nThere was to be a selection grade Stenographer in the scale of pay of Rs. 400-20-600 plus allowances and there were to be 3 posts of Stenographer Grade I (Senior).\n\nOne post of Stenographer Grade I (Junior) and 2 posts of Stenographers Grade II.\n\nIn other words there wer:~ 7 posts of permanent Stenographers in addition to the post of a Secretacy. On April 16, 1956 the Government wrote to the Registrar conveying the sanction of\n\nthe Governor to the creation of a post of Secretary to the Chief Justice for the time being in the same scale as before subject to the revision by the Pay Committee.\n\nThe appellant was originally working as a Stenographer in the Ministry of Law, New Delhi, and had been confirmed as a Stenographer in the Income tax Appellate Tribunal. Delhi Branch, with effect from July I, 1952.\n\nIt is stated that on the basis of a competitive examination and interview the Chief Justice appoint ed him as his Secretary temporarily with effect from the date on which he was appointed to the post on a scale of Rs. 400-20-500,\n\nby an order dated July 30, 1956. By a letter dated April 6, 1953 the Government intimated to the Registrar that the Governor had agreed to the proposed reorganisation of the Stenographers Service in the High Court with effect from May 21, 1955 \"subject to the condition that the procedure of recruitment, promotion etc. should be in the same or similar manner as laid down in the Government resolution ............ dated October 22, 1955\". The pay scales were to te same as accepted by the Government on the recommendation of the Pay Committee. • The Registrar addressed a letter on October 3, 1958 to the Government pointing out that the conditions which had been imposed relating to the procedure of recruitment, , promotion etc. could not be so imposed in view of the provisions of Article 229 of the Constitution as it was for the Chief Justice to regulate the conditions of service of the officers and employees of the High Court.\n\nThe Court had framed its own Rules in that behalf.\n\nThe Government was requested to waive the conditions as laid down , in Government resolution in so far as the reorgani sation of the Stenographers Service of the court was concerned and to issue revised orders.\n\nThe High Court also asked for a clarification on the point whether the Government sanction referred to the post of the Secretary to the Chief Justice-cum-Stenographer or the separate post in the selection grade of Stenographer (letter from the Registrar dated December 16. 1958).\n\nOn, April 27, 1958 the Government informed the Registrar that a Stenographer whether of the selection grade, Grade I (Senior) or Grade II when attached to the Chief Justice as Private Secretary was to have the Gazetted status.\n\nThe following portion of that letter deserves to be parti cularly noticed :\n\n\"Government's sanction for the Selection Grade Stenographer was for the post of the Secretary to the Ch!ef Justice-cum.Stenographer only and not for an addi tional Selection Grade post\"\n\nOn May 7, 1959 Shri C. P. Sinha the then Chief Justice of the High Coun of Assam passed two orders which may be reproduc ed :- (I) \"In exercise of the powers conferred on me under Art 229 of the Constitution of India, read with (I) Rule\n\nSUPRBME COURT REPORTS [1971] SUPP. s.c.R.\n\n11 of the Assam High Court Appointment and Conditions of Service Rules; (2) Letter No. LLJ. 74/56/26 dated the 6th August 1958; and (3) Letter No. LLJ 74/56/36 dated the 27th Ap1il 1959 of the Government of Assam, Law Dept!., I hereby direct that the post of Secretary to the Hon'ble Chief Justice be merged into the post of Selection Grade Stenographer, with effect from 24th August, 1956 the date when the present incumbent, Sri M. Gurumoorthy was appointed.\n\nI further direc1: that the pay scale of the Secretary to the Hon'ble Chief Justice be revised to Rs. 450-30..600 p.m. with effect from 1st October 1956 as recommended by the Pay Committee and accepted by the Government.\"\n\n(2) \"In exercise of the powers conferred on me under Article 229 of the Constitution of India, read with Rule 5(i) Part II of the Assam High Court Appointment and Conditions of Service Rules, I hereby appoint Sri M.\n\nGurumoorthy, as Secretary to the Hon'ble Chief Justice of Assam-cum-Selection Grade Stenographer, in a substantive capacity in the pay scale of Rs. 450..30-600 p.m. with effect from 24th August, 1958. Shri M. Gurumoorthy will be deemed to have been placed on probation with effect from 24th August 1956, under Rule 4(ii) Part II of the Assam High Cottrt Appointment and Conditions of Service Rules.\"\n\nThe Jetter of the Registrar dated December 23, 1959 to the Government referred to the material correspondence which led to the passing of the order by the Chief Justice dated May 7,. 1959 by which the appellant was a.ppointed as Secretary to Chief Justicecum-Selection Grade Stenographer substantively with effect from August 24, 1956. In this letter sanction was asked for the post of one pre-reorganisation Grade I Stenographer (Grade I Junior) with effect from August 24, 1956.\n\nIt is noteworthy that prior to the orders of the Chief Justice dated May 7, 1959 there were seven posts of Stenographer of all grades and one temporary post of Secretary to the Chief Justice. After the appointment of the appellant as Secretary-cum-Selection Grade Stenographer substantively only 6 posts of Stenographer were left and therefore the High Court asked for sanction for the post of a Stenographer as above.\n\nAs stated in para. 27 of the: writ petition the Accountant General was fully satisfied about tbe validity of the order dated May 7, 1959 passed by the Chief Justice and the necessary pay slips authorising the appellant to draw salary in the scale of Rs. 450-30..600 were issued from time to time by the Accountant General with effect from October l, 1956.\n\nThis was admitted in the return,\n\nGURUMOORTHY \\'.ACCT. GENERAL (Grover, J.)\n\npara. 12, but it was added that the Accountant General was simultaneously corresponding for a formal sanction for the creation of a permanent post of selection grade Stenographer and a definie assurance had been given by the High Court in its Jetter dated September 1, 1959 that action was being taken separately to make the necessary modification in the High Court Appointment and Conditions of Service Rules.\n\nBy a letter dated January 12, 1961 the Finance Minister, Assam, wrote to the Chief Justice in reply to the Jetter dated November 15, 1960 from him saying that from the Charge Report of the appellant dated August 28, 1956 his appointment was exclu, sively to the post of Private Secretary and he could not be held to have been appointed in any other post.\n\nThat post was a separate one and could not be merged with any other post as was ordered by the High Court.\n\nHe made certain suggestions for consideration of the High Court.\n\nIt was pointed out that if those suggestions were accepted the position would be as follows :\n\nExisting pots\n\nPrivate Secy. to Chief Justice 1\n\nGrade I Steno 4 Grade II Steno 3\n\nTOTAL 8\n\nNew posts ~!S resulted of re-organisation\n\nPrivltc Secy. to Chief Justice Selection Grade Steno (By upgrading) I Grade I Steno 3 Grade I! Steno 3\n\nTOTAL 8 No new creation of a post as proposed by the High Court was stated to be necessary.\n\nThe following portion from that letter may be set out:-\n\n\"I am however to point out once more that the main difficulty in the matter, lies on the question of appointing Sri Gurumoorthy as a Selection Grade Steno from his original appointment as Private Secretary to the Chief Justice which was a separate post.\"\n\nThis Jetter was addressed to Shri H. Deka who had become Chief Justice by that time. After receipt of this Jetter the Chief Justice _passed an order vacating the orders of his predecessor dated May 7, 1959. He expressed the view that the post of the Secretary 10 the Chief Justice could not be merged with that o! the Selection Grade Stenographer inasmuch as the incumbent was not a Selection Grade Stenographer.\n\nHe agreed with the Govern ment's suggestion contained in the aforesaid letter and vacated the order merging the post of Secretary with that of Selection Grad~\n\nStenographer and of absorbing the appellant substantively in the\n\nSUPREME COURT REPORTS\n\n(1971] SUPP.S.C.R.\n\npermanent cadre and in the post of Secretary-cum-Selection Grade Stenographer.\n\nHe asked for sanction to revise the pay scale of the Secretary to Rs. 450-30-600 with effect from October 1 1956 in view of his order which was likely to result in reduction f pay which was being drawn by the appellant.\n\nIn September 1961 Shri Gopalji Mehrotra who had suce<:eded Shri H. Deka as Chief Justice re-examined the whole matter and observed that from the orders of his predecessor dated February g, 1961 two consequences wo!lld flow; firstly the appellant would have to refund the salary which he had overdrawn and secondly even if the sanction was granted from August 24, 1961 or hi; post was made permanent he might get salary on the old scale.\n\nIn his view the appointment vf the appellant by the 01ief Justice Shri C. P. Sinha on May 7, 1959 was a valid appointment and the Chief Justice had fult powers to pass the said order under Article 229 of the Constitution.\n\nHe, further considered that once th: appellant had been appointed substantively he could not be asked to vacate that post in violation of the provisions of Article 311(2).\n\nHe, therefore, vacated the order made by Shri H. Deka and restored that of Shri C. P. Sinha.\n\nOnce an order had bi:en passed by the Chief Justice of the High Court in exercise of his power under Article 229 of the Constitution the only course open to the Government, if it wanted to challenge those orders, was to take appropriate proceedini:s either by way of persuading the Chief Justice to rescind or amend his order on the adminstrative side or to file a writ petition challenging his orders in the High Court.\n\nBut the Government took the extraordinary and somewhat unusual step of directing the Accountant General not to issue any pay slip to The appellant until final orders of the Government were issued.\n\nThis is clear from the letter of the Government to the Accountant General dated October\n\n7. 1961.\n\nIt appear~ that t11e appellant challenged the directions given by the Government to the Accountant General by a petition under Article 226 of the Constitution. That petition was, however, withdrawn on July 12. 1963 in view of an assurance given by the Advocate General that if a proposal was sent to the Government by the High Court on the following lines it would be accepted:-\n\n\"(l) Creation of a permanent post ot Secretary to the Hon'ble Chief Justice, outside the cadre of Stenographers, in the scale of Rs. 450-30·600 with retrospective effect, the date with reference to which this would take effect being decided by the Govemment in consultation with the Hon'ble Chief Justice.\n\n(2) Pending finalisation of the above proposal, the petitioner would be allowed to draw pay in the above\n\nmentioned grade at Rs. 570 per month subject to adjustment in the light of tlie finalisation of the matter''.\n\nOn July 23, 1963 the Registrar wrote to the Government enclosing a copy of the High Court order dated July 12, 1963.\n\nIt was stated that in accordance with that order a proposal was being sent to the Government for creating a permanent post of Secretary to the Chief Justice with effect from August 24, 1956, the date on which the appellant joined on a pay scale of Rs. 450-30-600. On October I, 1963 the Government wrote to the Registrar intimating sanction of the Governor to the creation of a permanent post of Secretary . with effect from May 7, 1959. The Registrar in his Jetter of November 12, 1963 pointed out that the sanction was inconsistent with the High Court's proposal.\n\nThis was followed by a long correspondence but the Accountant General revived his demand for refund of a sum of Rs. 15,621.2nP. on account of the salary which was stated to have been overdrawn by the appellant.\n\nOn November 15, 1965 the appellant filed a petition under Article 226 of the Constitution which was heard on January 2, 1967 by a division bench consisting of C. S. Nayudu and S. K. Dutta\n\nJJ.\n\nThe learned Judges differed in their decision.\n\nNayudu J. dismissed the petition where Dutta J. allowed it.\n\nThe petition was referred to a third Judge Goswami J ., who agreed with the judgment of Nayudu J.\n\nThe main point raised in the petition related to the ambit of the powers of the Chief Justice of a High Court under Article 229 of the Constitution and the authority of the State Government to interfere with or override those orders of the Chief Justice by directing the Accountant General not to issue the pay slips to the officer whose appointment had been made by the Chief Justice as F his Secretary-cum-Stenographer.\n\nIndeed, it was stressed, this had been done after the State Government had accorded sanction in clear terms for such a post.\n\nThe position taken up by the appel~ !ant was controverted in every way by the respondents.\n\nWe may now refer to the constitutional provisions for deter- G mining the power and authority of the Chief Justice of a High Court in the matter of appoinmens of officers and servants of that court.\n\nClause (1) of Article 229 provides that appointments of officers and servants of .a High Court shall be made by the Chief Justice of the Court or such other judge or officer of the court as he may direct i.e. his nominee. The proviso empowers the Gover- H nor of the State to require by Rule in certain cases to make appointment after consultation with the State Public Service Commission.\n\nQause (2) of the Article contains two 'important provisions. The\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nfirst is that conditions of service of officers and servants of a High Court shall be such as may be prescribed by Rules made by the Chief Justice or his nominee.\n\nThis is, however, subject to the provisions of any law made by the legislature of the State.\n\nThe second is that the Rules so far as they relate to salaries, allowances and pensions require the approval of the Governor.\n\nClause (3) declares that the administrative expenses of a High Court includ ing all salaries, allowance:; etc. in respect of officers and servants of the court shall be charged upon the Consolidated Fund of the State.\n\nUnder Article 202 the Gol'\n\nrnor shall, in respect of every financial year, cause to be laid before the House or Houses of the legislature of the State a statement of the estimated receipts and expenditure for that year.\n\nUnder clause (2) the estimates of expenditure shall show separately\n\n(a) the sums required to m\"et expenditure described by the Constitution as expenditure charged upon the Consolidated Fund of the State and (b) the sums required to meet other expenditure. Clause\n\n(3) gives the expenditure which shall be charged on the Consolidated Fund of each State.\n\nClause (f) reads \"any other expenditure declared by this Constitution or by the legislature of the State by law to be so charged\".\n\nUnder Article 203 the estimates which relate to expenditure charged upon the Consolidated Fund of the State shall not be submitted to the vote of the legislative assembly.\n\nArticle 204 relates to Appropriation Bills.\n\nThe bill to provide for appropriation out of the Consolidated Fund of the State must include the expenditure charged on that Fund.\n\nClause (2) prevents any amendment being proposed to an Appropriation Bill which will have the effect, inter alia, of varying the amount or altering the destination of any grant or varying the amount of expenditure charged on the Consolidated Fund of the State.\n\nArticle 146 con tains provisions relating to officers and servants of the Supreme Court in terms analogous to Article 229 the other provisions being also similar.\n\nThe unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and .iervants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article.\n\nThis was essentially to secure and maintain the independence of the High Courts.\n\nThe anxiety of the constitution makers to achieve that object is fully ; hown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the court at the same level as the salaries and allowances of the judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause (!) read with clause (2) of Article 229 confers\n\nGURUMOORTHY v. ACCT. GENERAL (Grover, J.) 429\n\nexclusive power not only in the matter of appointments but also A with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (!).\n\nTile B apprnval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. Even under the Government of India Act the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chief Justice of the Court under Section 242 (4) read with Section 241 of the Govern- C ment of India Act, 1935. By way of contrast reference may be made to Article 148 relating to the Comptroller and Auditor General of India. Gause (5) provides :\n\n\"Subject to the provisions of this Constitution and of any law made by Parliament the conditions of service of D persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.\"\n\nIt is significant that the Comptroller and Auditor General unlike fhe Chief Justice of a High Court has not been given the power to prescribe the conditions of service of persons servingin the Indian Audit and Accounts Department in the same terms as are embodied in Article 229 (2).\n\nThere the Rules 'have to be made by the President after consultation with him.\n\nArticle 187 may also be noticed. Clause (2) of that Article provides that the legislature of a state may by law regulate the recruitment and conditions of service of persons appointed to thy secretarial staff of the House or Houses of legislature. Gause (3) is to the' effect that until provision is made under clause (2) the Governor may, after consultation with the Speaker of the legislative assembly or tile Chairman of the Legislative Council, make rules regulating tile recruitment and the conditions of service or persons appointed to the secretarial staff of the Assembly of Council. Th'iis Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers' and sel'Vants of the High Court and their conditions of service. These can be prescribed by rules made by him.\n\nApart from the special situation contemplated by the proviso to clause (!) the only exception is that the Governor's approval must be sought to the extent the rules relate to salaries, leave or pension.\n\n..c:io\n\nSUPREMB COURT RBPORTS (1971] SUPP. s.c.R.\n\nThis exception; it is abundantly clear, has to be made because the\n\nfinancs hav~ to be provided by the Govern11Jent and to the extent\n\nthee IS any mvolvement of expense the Government has to approve Of II.\n\nDutta J., in his judgment considered that there was no dispute on the following po:iition. There were originally 7 sanctioned posts of stenographers in the High Court. The Court sent a proposal the Stenographers' Service should be reorganised. This included the post of one selection grade stenographer.\n\nThere was also a separate proposal to make the post of Secretary to Chief Justice permanent with a pay scale similar to that of a selection grade stenographer. The Government accepted the proposal with regard to the reorganisation of the Stenographers Service..\n\nThe pay scales of the selection grade stenographer was first fixed at Rs. 400.600 with effect from May 21,\n\n1955. It was revised to Rs. 450.600 from October l, 1956 but it was afterwards fixed at Rs. 600-900 with effect from September 1, 1959. The Government had made it clear that the person holding the post of selection grade stenographer should also work. as Secretary to the Chief Justice and that the temporary post of the Secretary to the Chief Justice should cease to exist.\n\nDutta J. repelled the contention of the counsel for the State that no. post of Secretary-cum-selection grade stenographer had lx:en created by the Government or that such a post could not be created except by means of framing rules.\n\nJt was pointed out by the learned judge that a number of posts had been created with different pay scales by the Government or the High Court and several of these posts and pay scales were never integrated in any rule.\n\nThe Government never took up the position that all those posts did not legally exist.\n\nWhen a post was created with the approval of the Government in the High Court and the pay scale was sarn:tioned for it, its inclusion in the rules was a mere formality.\n\nIt was also held by him that the conditions laid down while sanctioning the post of selection grade stenographer in the letter of the Government dated August 6, 1958 that the procedure of recruitment should be on the same or similar lines as laid down in the Government Resolution dated October 22, 1955 came into conflict with the powers of the Chief Justice under Art. 229 and it was so accepted by the Government itself in the letter dated April 27, 1959.\n\nHis view finally was that the Government had the authority to sanction the post.\n\nBut it could not interfere with the choice of the incumbent which undoubtedly was to be of the Chief Justice under Article 229 of the Constitution. We are inclined to concur with the reasoning and conclusion of Dutta J.\n\nIt is unnecessary to refer to the decision of Nayudu J., who acceded to certain contentions raised on behalf of the State which were wholly untenable and have not been sought to be supportea\n\nGURUMOORTl!Y v. ACCT. GENERAL tGrover, J.)\n\nbefore us.\n\nBy way of illustration, one of the arguments which was accepted was that the letter annexure-R dated April 27, 1959 from the Secretary to Government of Assam, Law Department, to the Registrar and which he was obviously writing on behalf of the Government, which meant, the Governor, did not satisfy the requirements of Article 166 of the Constitution. In view of the tenor and contents of that letter such a contention could never .have been sustained.\n\nGoswami J., did not fall into the same errors as Nayudu J. and his comprehension of the true legal position was substantially correct.\n\nBut he erred in coming to the conclusion that the Government had not accorded sanction for the post to which the appellant was appointed by the orders of Sinha C. J. dated May 7, 1959.\n\nHis reasoning was that there were seven permanent stenographers holding seven posts.\n\nBy the appointment of the appellant as selection graqe stnographer-cum-secretary the strength was raised to eight for which no sanction of the Government existed. Goswami J. further took into consideration the fact that the Government had made it clear that the selection grade post should be filled by promotion strictly on merits from among the stenographers grade I.\n\nIt may be stated at once that any restrictions imposed by the Government of the above nature while communicating the sanction could not bind the Chief Justice in view of Article 229 of the Constitution.\n\nThis was recognised by the Government itself in its letter dated April 27, 1959.\n\nEven as regards the strength of the cadre of stenographers which was seven there was evidence that at the relevant time all the posts were not filled up (see the .affidavit filed by the appellant in the High Court dated August 7, 1967 together with annexure I).\n\nAt any rate the Government had itself taken up the position in para 6(viil of the affidavit dated December 12, 1965 that as a result of the order of the Chief Justice of May 7, 1959 one post of grade I stenographer stood automatically retrenched.\n\nIf that be the correct position there was no additional financial burden involved in the appointment of the appellant as secretary-cum-selection grade stenographer and it is difficult to understand how the Government could interfere in the choice of the person who was appointed or insist on his having certain type of qualifications, as seems to have been emphasized in some of the letters.\n\nIt may also be pointed out that the post of selectioq,; grade stenographer-cum-secretary to Chief Justice had been s; itis; tjolled vide the letter dated April 27, 1959.\n\nThe appellant was appointed to that post by the Chief Justice who was competiJt;.!fo do so under Article 229.\n\nIf there were any technical diffkUltics they could be easily sorted out by mutual cooperation which is, essential between the Chief Justice of the High Court and\n\nH ' '<\n\n43.3\n\nSUPRBME COURT ltBPORTS [1971] SUPP. s.c.R.\n\nthe State Government in such matt1:rs. But instead of doing so the unusual step of the Accountant General withholding the pay slips under the directions of the Government was taken for which there was no legal justification or warrant. ·\n\nThe appeal is cons1:quently allowed and the judgment of the High Court is-set aside An appropriate writ or direction shall issue to the respondents to give effect to the orders of Sinha C. 1. dated May 7, 1959 and Mehrotra C. J. dated September 27, 1961.\n\nThe appellant will get his costs in this Court.\n\nG.C.\n\nAppeal allowed.", "total_entities": 56, "entities": [{"text": "M. GURUMOORTHY", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "M. 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"regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 187", "label": "PROVISION", "start_char": 4752, "end_char": 4760, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 229", "label": "PROVISION", "start_char": 5410, "end_char": 5418, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 6332, "end_char": 6343, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 10469, "end_char": 10480, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art 229", "label": "PROVISION", "start_char": 11838, "end_char": 11845, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 11853, "end_char": 11874, "source": "regex", "metadata": {}}, {"text": "Article 229", "label": "PROVISION", "start_char": 12676, "end_char": 12687, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 12695, "end_char": 12716, "source": "regex", "metadata": {}}, {"text": "Part II of the Assam High Court Appointment and Conditions of Service Rules", "label": "STATUTE", "start_char": 12738, "end_char": 12813, "source": "regex", "metadata": {}}, {"text": "Part II of the Assam High Cottrt Appointment and Conditions of Service Rules", "label": "STATUTE", "start_char": 13161, "end_char": 13237, "source": "regex", "metadata": {}}, {"text": "Article 229", "label": "PROVISION", "start_char": 17870, "end_char": 17881, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 311(2)", "label": "PROVISION", "start_char": 18060, "end_char": 18074, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 18272, "end_char": 18283, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 19017, "end_char": 19028, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 20749, "end_char": 20760, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 21209, "end_char": 21220, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 21948, "end_char": 21959, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "High Court shall be such as may be prescribed by Rules", "label": "STATUTE", "start_char": 22500, "end_char": 22554, "source": "regex", "metadata": {}}, {"text": "Article 202", "label": "PROVISION", "start_char": 23044, "end_char": 23055, "source": "regex", "metadata": {"linked_statute_text": "High Court shall be such as may be prescribed by Rules", "statute": "High Court shall be such as may be prescribed by Rules"}}, {"text": "Article 203", "label": "PROVISION", "start_char": 23753, "end_char": 23764, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 204", "label": "PROVISION", "start_char": 23920, "end_char": 23931, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 146", "label": "PROVISION", "start_char": 24359, "end_char": 24370, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 24469, "end_char": 24480, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 24616, "end_char": 24627, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 25420, "end_char": 25431, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "High Court by Rules", "label": "STATUTE", "start_char": 25637, "end_char": 25656, "source": "regex", "metadata": {}}, {"text": "Even under the Government of India Act", "label": "STATUTE", "start_char": 26168, "end_char": 26206, "source": "regex", "metadata": {}}, {"text": "Section 242", "label": "PROVISION", "start_char": 26347, "end_char": 26358, "source": "regex", "metadata": {"linked_statute_text": "Even under the Government of India Act", "statute": "Even under the Government of India Act"}}, {"text": "Section 241", "label": "PROVISION", "start_char": 26373, "end_char": 26384, "source": "regex", "metadata": {"linked_statute_text": "Even under the Government of India Act", "statute": "Even under the Government of India Act"}}, {"text": "Govern- C ment of India Act, 1935", "label": "STATUTE", "start_char": 26392, "end_char": 26425, "source": "regex", "metadata": {}}, {"text": "Article 148", "label": "PROVISION", "start_char": 26471, "end_char": 26482, "source": "regex", "metadata": {"linked_statute_text": "the Govern- C ment of India Act, 1935", "statute": "the Govern- C ment of India Act, 1935"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 27201, "end_char": 27212, "source": "regex", "metadata": {"linked_statute_text": "the Govern- C ment of India Act, 1935", "statute": "the Govern- C ment of India Act, 1935"}}, {"text": "Article 187", "label": "PROVISION", "start_char": 27299, "end_char": 27310, "source": "regex", "metadata": {"linked_statute_text": "the Govern- C ment of India Act, 1935", "statute": "the Govern- C ment of India Act, 1935"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 27898, "end_char": 27909, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 229", "label": "PROVISION", "start_char": 30743, "end_char": 30751, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 31034, "end_char": 31045, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 166", "label": "PROVISION", "start_char": 31707, "end_char": 31718, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 32791, "end_char": 32802, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 34079, "end_char": 34090, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]} {"document_id": "1971_1_433_439_EN", "year": 1971, "text": "RAJA SBATRVNR\n\nMOHAMMAD UMAT AZIM KHAN \" ORS.\n\nApril 21, 1971 [C. A. VAlOIALINGAM AND A. N. RAY, JJ.)\n\nU.l'. Zamintiara D•bt R•duclion Act (15 of 1955), •· 4 a.iam•nd•d by th• Amtndment Act of 1962-Efject of amendment, Cod• of Civil l'roct\n\ndure (Act 5 of 1908), O. 41-Rtvi•-l'rinclp/t1 for granting wh•n siaiute am•nded.\n\n.03\n\nAn application for tho reduction of the decretal amount of a decree passed under tho U.P. Encumbered Estat .. Act, 1934, filed by the rC8pon- 0 dents unde1 s. 4 of tho U.P. Zamindars' Debt Reduction Act, 1953, was rejected by the Special Judae actina under 1953-Act, on the ground that unless and until the decree charged the mortgaged property no reduction of debt could be orderd under the 1953-Acl The appeal to the High Court was dismissed. The 1953-Act was amended by the U.P. Zamindars' Debt Reductio11 (A!llendment) Act, 1962, by deleting the words 'charged under the decree' from the section. Thereafter, the judgment debtor filed an application for review in the High Court, and the High Court set aside D the order of the Special Judge, and remanded the matter.\n\nOn the questions: (1) whether the section as amended could be invoked ~Y the respondents, and (2) whether the High Court could grant the application,\n\nHELD: (I) Tho Amendment Act provided that the amendment took effC('t as if the amendment had been in force on all material dat, s, that is, the words 'charged under the decree' in s. 4(2) of 1953-Act were never there. The consequence is that the only statutory requirement is whether tho mortgaged proprty consists of an estate which bas been acquired under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950. In the present case, the decree related to a secured debt and the mortgaged property conSisted ot an estate which had been acquired under the provisions of Abolition Act, and therefore, the section could be invoked. [436F; 437E-F; H, 438A-B]\n\nState of Bombay v. l'andurang Vinayak Chapha/kar & Or.. [1953] S.C.R. 773, referred to.\n\n(2) It was not a case where, when the High Court decided the matter, it applied the law as it stood and there was a subsequent change of law, which would not be a ground fof review. [438E-F] G\n\n(a) The law in s. 4 of the 1953-Act as amended was not a subsequent Jaw, but a law which was there from the inception of the Act. The deeming provision makes it fully effective from the date when the 1953-Act can1e into force. The result is P1ut the High Court in the first instance should have applied the law as it always stood and not having done so it would be an error on the face of the record. [438F-H]\n\n(b) Moreover, s. 4 of the 1953-Act confers power on the Court to lll'PIY the law notwithstanding any provision contained in the Civil Procedure Code. It is a special legislation conferrina riahts and reliefs within 28-1 S.C. Indla/71\n\nSUPRBMB COURT RBPORTS [1971) SUPP. l;(l.I:.\n\na specially created jurisdiction and it is the substance and not the form that would be decisive, in such a case .. [439 C-D]\n\n(c) The Si>ecial Judge could not have ordered the application after 1t was affirmed by !ho High Court in tho first instance and therefore the respondents rightly applied to tho High Court. [438H ;' 439A] '\n\nRajah Kotagir Venkata Subbamma Rao v. Rajah Ve/lanki, 21 I.A. 197, referred to.\n\nQVJL APPBLLATB JURISDICTION : Civil Appeal No. 1007 of 1967.\n\nAppeal from the judgment and order dated April 30, 1963 of the Allahabad High Court, Lucknow Bench in Review Application C No. 2 of 1963.\n\nC. B. Agarwala and Akhtar Husain, for the appellant.\n\nDanial A. Latifi, and M. l. Khowaja, for respondent No. I.\n\nD The Judgment of the Court was delivered by\n\nRay, J.-This appeal is by certificate from the judgment of the Allahabad High Court dated 30 April, 1963.\n\nLeave was granted by the Allahabad High Court on 21 February, 1966.\n\nThe facts are these.\n\nOn 4 October, 1939 the appellant obtained a decree under the U. P. Encumbered Estates Act, 1934 against Sardar Mujibul Rahman Khan for the sum of Rs. 1,31,040-1-0 with costs and future interest at 3!% p.a. on the basis of a secured debt Sardar Mujibul Rahman Khan the judgment debtor died on 24 April, 1949.\n\nThereafter the judgment debtor's sons who were brought on record on 21 April, 1953 applied for reduction of tfie decretal amount under section 4 of the U. P. Zaminpars' Debt Reduction Act, 1952 (Act XV of 1953).\n\nThe application was rejected by the Special Judge, Kheri on 18 February, 1957.\n\nThe Special Judge held that unless and until the decree charged the mortgaged property no reduction of debt could be ordered under the U. P. Zamindars' Debt Reduction Act, 1952 and that the decree was not one such.\n\nThe judgment debtor filed an appeal against the said order of the Special Judge. The appeal was heard on 27 November, 1962 by the Full Bench of the Allahabad High Court upholding the order of the Special Judge and dismissing the appeal which was treated as revision.\n\nShortly after the dismissal of the revision petition the U. P. Zamindars' Debt Reduction Act, 1952 was amended by U. P. Zamindars' Debt Reduction (Amendment) Act, XX of 1962.\n\nThe Amendment Act of 1962 received the assent of the President on 27 November, 1962 which happened to be the date of the order of the High Court\n\nSHATRUNJI V, AZIM KHAN (Ray, J.)\n\non the revision application.\n\nThe !llDendment was published in the Gazette on 4 December, 1962 and came into iorco on that date. The judgment debtor thereafter on 20 February, 1963 filed an application for review against the order of the Full Bench dated 27th November, 1962.\n\nThe High Court in accordance with the order of the majority .accepted the review application of the judgment debtor and set aside the order of the Special Judge rejecting the judgment deb tor's application under section 4 of the Zamindars' Debt Reduction Act, 1952 and remanded the case to the Special Judge for disposal of the same in accordance with the provisions of the U. P. Zamin dars' Debt Reduction Act, 1952 as amended by Act 20 of 1962.\n\nTwo questions arise in the present appeal.\n\nFirst, whether section 4 of the U. P. Zamindars' Debt Reduction Act, 1952 could be invoked by the judgment debtor, secondly, whether the High Court could accede to the application of the judgment debtor.\n\nSection 4 of the U. P. Zamindars' Debt Reduction Act, 1952 (hereinafter referred to as the 1952 Act) in so far as it is necessary for the purpose of the present appeal is as follows :\n\n\"Powers to reduce debts after passing of decree: (!) Notwithstanding anything in the Code of Civil Procedure, 1908 or any other law, the court, which passed a decree to which this Act applie.s relating to a secured debt, shall on the application either of ihe decree-holder or judg ment-debtor, proceed as hereinafter stated.\n\n(2) Where the mortgaged property (charged under the decree) consists exclusively of estat.e and such estate has been acquired under the provisions of the U. P. Zamin dari Abolition and Land Reforms Act,. 1950, the court shall-• . . . .\n\n(3) Where the mortgaged property (charged under the decree) consists partly of estate and partly of property other than e.state, the court shall- • . . . .\n\n!l'he words 'charged under the decree' are shown in brackets\n\nonly to indicate that these words were deleted by Amendment Act\n\n20 .of 1962.\n\nIt is because of the amendment that the judgment debtor made an application to the High Court for i:eviow of the order dated 27 November, 1962 rejecting the judgment debtor's application under section 4 of the 1952 Act.\n\nAs to what the Court shall do under sub-sections (2) and (3) of section 4 of tbc\n\n1952 Act are calculation of the amount and teduction of the same\n\n'35\n\nin accordance with the provisions of the Act.\n\nThe working out of these details for calculation and reduction of debt does not arise in the present case.\n\nThe Amendment Act 20 of of 1962 which deleted the words \"charged under the decree\" occurring in both sub-sections (2) and\n\n(3) of section 4 of the 1952 Act immediately after the words \"mortgaged property\" was made effective as from the date of enforcement of the U. P. Zamindars' Dehl Reduction Act, 1952, namely, 25 May, 1953.\n\nThe reason for this amendment given in the objects and reasons of the U. P. Zamindars' Debt Reduction (Amendment) Act, I 962 was because the High Court of Allahabad in the case of Bannu Mal & Ors. v. Bashir Ahmad Khan & Ors.(') held that the court was powerless to reduce debts after tile passing of the decree unless the mortgaged property was charged under the decree.\n\nThe effect of the Amendment was to give relief to mortgaged property within the contemplation of the Act.\n\nAs a result of the amendment first it is to be a decree to which the 1952 Act applies, secondly, it is to be a decree relating to a secured debt and, thirdly, the mortgaged property is to consist of estate which has been acquired under the provisions of the U. P.\n\nZamindari Abolition and Land Reforms Act, 19 50. If these tests are satisfied the decree holder or the judgment debtor has the right to apply to the court and the court shall on the application prcr ceed in accordance with the provisions of the Act.\n\nThe Court under this section is the court of the Special Judge which passed the decree. In the present case, it is indisputable that it is a decree relating to secured debt, and the mortgaged pro~ consists of an estate which has been acquired under the prov1Sions of the U. P.\n\nZamindari Abolition and Land Reforms Act, 1950.\n\nThe respondents applied under section 4 of the 1952 Act as it stood prior to its amendment by Act 20 of 1962 on 24 / 25 August, 1955 in the court of the Special Judge, first-grade, Kheri. The Special Judge held that the decree against the respondents was not one which could be said to be against the mortgaged property charged under the decree.\n\nThe respondents also lost before the High Court under the order dated 27 November, 1962. The respondents made an application for review of the judgment of the High Court dated 27 November, 1962.\n\n(1) 1962 A. L. J. R. 88\n\nSHATRUNJI V. AZUf KHAN (Ray, J.)\n\nThe effect of the amendment of the 1952 Act is embodied in section 2 of the Amendment Act. 1962 which is as follows :-\n\n\"The U. P. Zamindars' Debt Reduction Act, 1952 shall as to the date of this enforcement have effect subject to the amendments made by this Act as if this Act had been in force on all material dates :\n\nProvided that nothing in this section shall apply to a debt which has been discharged prior to the date of\n\nenacent of this Act\".\n\nThe Amendment Act therefore provided that the amendment took effect as if the Amendment Act had been in force on all material dates.\n\nThe effect of such a deeming clause was stated by this Court in State of Bombay v. Pandurang Vinayak ChaphalkllT' & Ors. (1) as follows: -\n\n\"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effeci must be given to the statutory fiction and it should be carried to its logical conclusion\".\n\nThe statutory fiction was introduced to give full effect to section 4 of the 1952 Act by conferring on the debtors and creditors the right to apply to the court for calculation and reduction of debt.\n\nIt was realised that courts always passed simple decrees.\n\nIt was noticed that mortgaged property was not and could not be charged under the decree.\n\nIt was therefore appreciated that unless the words \"charged under the decree\" were deleted the section could never give any relief to any landlord whose estate had been acquired.\n\nThis Court in the Bombay case referred to the observations of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council (') that \"If you are bidden to treat an imagi nary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real to consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ........ The statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggle when ii comes to the inevitable corollaries of that state of affairs\".\n\nThese observations indicate that the words \"charged under the\n\n- decree\" in section 4(2) of the 1952 Act were never there with the\n\n(I) [19s3J s.c.R. 773,778\n\n(2) [1952] A.C. 109\n\ninevitable consequence that the only statutory requirement is whether the mortgaged property consists of estate which has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950.\n\nOn 27 November, 1962 when the matter was heard by the High Court, this amendment did not come into the statute book.\n\nThat is why the judgment debtor made an application to bring it to the notice of the High Court that the law was that the words \"charged under the decree\" were always deemed to have been deleted and this law was effective from the date of coming into force of the 1952 Act on 25 May, 1953.\n\nThe High Court by a majority opinion was of the view that the judgment debtors should be given relief.\n\nUnder Order 47 of the Code of Civil Procedure the principles of review are defined by the Code and the words \"any other sufficient reason\" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order.\n\nThe grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within big knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record.\n\nIn Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao (') Lord Davey at page 205 of the Report said that \"the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event\".\n\nCounsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review.\n\nThe appellant's contention is not acceptable in the present case for two principal reasons; first, it is not a subsequent law. It is the law which all along was there from 1952.\n\nThe deeming provision is fully 'effective and operative as from 25 May, 1953\" when the 1952 Act came into force.\n\nThe result is that the Court is to apply the legal provision as it always stood.\n\nIt would, therefore, be error on the face of the record.\n\nThe error would be that the law that was applied was not the law which is applicable. Secondly, section 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code 0f Civil Procedure.\n\nTherefore the application though intituled an application for review was not be so.\n\nThe substance and not the form of the application will be decisive.\n\nThe respondents could not have applied to the Special Judge at Kheri after the decision of the High Court on 27 November, 1962 to apply the law as it stood to the facts and circumstances of\n\n(I) 271. A. 197.\n\nSHATRUNII v. AZIM KHAN (Ray, J.) 439\n\nof the case.\n\nThe appeal from the order of the Special Judge, A Kheri was heard by the High Court and, therefore, the respondents rightly applied to the High Court. It appears from the record of the case that when the matter was heard before the High Court the respondents' counsel brought to the notice of the High Court that the Act was going to be amended and awaited assent of the President.\n\nIn the present case, it is a pre-eminent consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the respondents. This is a special legislation conferring rights and reliefs within a specially created jurisdiction.\n\nThe decree is treated like a decree of the Civil Court.\n\nThe execution of the decree is not within the province of the provisions of the Code of Civil Procedure.\n\nThere are special Acts for execution of decrees of the type in the present appeal.\n\nThe Special Courts have been given power to grant remedies or reliefs to the judgment debtor as well as the decreeholder.\n\nSection 4 of the 1952 Act conferred right to apply to the court notwithstanding any provision contained in the Code of Civil Procedure.\n\nThe High Court was, therefore, right in making the order as a court could have made at the date on which the appeal was heard.\n\nFor these reasons the appeal fails and is dismissed.\n\nEach par:y will pay and bear their own costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 42, "entities": [{"text": "SBATRVNR\n\nMOHAMMAD UMAT AZIM KHAN \" ORS", "label": "RESPONDENT", "start_char": 5, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "MOHAMMAD AZMAT AZIM KHAN & ORS", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 86, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "A.N. 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"PROVISION", "start_char": 12457, "end_char": 12469, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 12731, "end_char": 12777, "source": "regex", "metadata": {}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13311, "end_char": 13338, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 4", "label": "PROVISION", "start_char": 14882, "end_char": 14891, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16241, "end_char": 16268, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 4", "label": "PROVISION", "start_char": 16478, "end_char": 16487, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16585, "end_char": 16612, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]} {"document_id": "1971_1_440_446_EN", "year": 1971, "text": "AZMAT AZIM KHAN\n\nBOARD OF REVENUE, UTTAR PRADESB, ALLAHABAD\n\n& ORS.\n\nA.pril 21, 1971\n\n(C. A VAIDIALINGAM AND A N. RAY, JI.)\n\nU.P. Encumbertd Estates Act, 1934-U.P. Abolition of Zamindari and Land Reforms Act, 1950 (Act I of 1951)--Compensation bonds payable to intermediary whether can be withheld and payment on them wlrc!- ther can be stopped in order to satisfy decree against intermediary under 1934 Act--Effect of ss. 23A, 23B of 1934 Act and s. 70 of 1950 Act.\n\nThere was a decree under the provisions of the U.P. Encumbered Eatates Ac~ 1934 against the appellant's father on the basis of a mortgage deed. The decree was transferred to the Deputy Commissioner for liquidation of debts. Meanwhile the U.P. Zamindari Abolition and Land Reforms Act, 1951. came into force.\n\nCompensation for proprietary ri&hts as an intermediatery vested in the State_ Government became payable to the judgment debtor.\n\nOn the death of his father th .. appellant and his brother became entitled to his property as well as the compensation payable to him. The appellant and his brother received bonds of the aggregate value of Rs. 64,000. Bonds of the face value of Rs. 32,000 remained with the compensation officer. In 1959 tb:e decree-holder applied to the Collector for an order that the appellant and his brother do return the bonds which they had received from the compensation officer failing which their properties were to be attached. The matter went up to the Board of Revenue.\n\nTho Board asked the Collector to take one or the other of three steps, namely, (I) to stop payment of instalment money on tho bonds by the treasuries or (2) direct the compensation officer \\o hand over bonds of the face value of Rs. 32,000 remaining with him for the liquidation of the\n\ndebts or (3) to attach the movable properties of the appellant and hi• brother for the liquidation of debts. The appellant thereafter made an application to the High Court under Art. 226 of the Constitution for an order quashing the order and direction to the Board of Revenue. The Division Bench, in appeal against the order of the Si.ogle Judge, quashed the direction of the Board of Revenue according to which the properties of the appellant and his brother were to be attached. The High Court upheld the other two orders of the Board of Revenue in regard to stoppage of payment of instalment money on the bonds by the treasuries and direction to the Compensation Officer to hand over the bonds of the face value of Rs. 32,000 remaining with him for liquidation of the debts.\n\nIn appeal to this Court the appellant contended that the Board Of Revenue did not have power to issue the said directions.\n\nHELD: By reason of the provisions contained in s. 70 of the U.P.\n\nZamindari Abolition and Land Reforms Act, 1950 and s. 23A of the U.P.\n\nEncumbered Estates Act, 1934 the compensation money is sent for by the Collector for the purpose of liquidation of secured debts on which decree is passed. The Compensation Officer under r. 77(1) of the Zamindari Abolition and Land Reforms Rules, 1953 could issue notices to the intermediary directing him to take the bonds becauSe under s. 18 of the 1934 Act the decree holder becomes entitled to recover the amount of the liecree in the manner and to the extent mentioned in 1934 Act. The proviso\n\nlt.ZllAT ll:Hlt.N v. BOit.RD OF llVBNUB (/\"ly, I.) 441\n\nte s. 18 of the .1934 Act enacts that the secured debt shall bo recoverable A from tho compensation and rehabilitation grant as thou&h the security had\n\n.not been extin&uished. [445C-D]\n\nFurtll•r, s. 23A and s. 23B of the 1934-Act require that the amount from the bonds on account of compensation or rehabilitation grant received by Collector shall bo expended or utilised by the Collector in liquidation, of the amount of the secured debt. Under s. 23B of the 1934-Act the bonds are received by Collector in pursuance of tho requisition under s.\n\nB 23A of the 1934 Act. The absence of the service of a requisition cannot confer a right on the judgment debtor to take away the compensation .money or bonds. The principle is actus curia neminem gravabit. [445E-F]\n\nTho decree holder under the provisions of the relevant statutes was\n\nnfitled to bo paid out of the compensation grant monies in satisfaction of tho decree. If the Collector had required the Compensation Officer under C •· 23A of the 1934 Act to place at his disposal pursuant to s. 70 of the 1950 Act the compensation money, the bonds could not have been taken direct the Compensation Officer to hand over bonds of the fac<:- value of Rs. 32,000 reporlcd to be remaining with him for liquida tion of debts.\n\nThe third was an order attaching movable and immovable properties belonging to the appellant and his brother B for liquidation of debts.\n\nThe principal question in this appeal is whether the first res pondent, the Board of Revenue Uttar Pradesh bad authority to pass the order impugned in this appeal.\n\nThe third respondent Raja Shatranjai the decree-holder was a creditor of the appellant's father Sardar Mujibul Rahman Khan on the basis of a mortgage deed.\n\nRaja Shatranjai obtained a decree on the said mortgage debt for Rs. 1,31,040-1·0 and R,. 1931-1-0 as costs.\n\nThe decree is dated 28 September, 1939.\n\nThe decree was passed under the provisions of the Uttar Pradesh, Encumbered Estates Act, 1934 (hereinafter referred to as the 1934 Act).\n\nThe decree was passed on the application of Sardar Mujibul Rahman Khan under section 4 of the 1934 Act for the liquidation of his debts.\n\nThe debtor was a zamindar in the District of Lakhimpur Kheri.\n\nThe decree was transferred to the Deputy Commissioner of Kheri for liquidatjon of debts.\n\nMeanwhile the U. P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as the 1951 Act) came into force.\n\nThe proprietary rights of the intermediaries vested in the State Government and the intermediaries were entiiled to receive compensation in lieu thereof.\n\nThe judgment-cjebtor was an inter mediary. Notices were issued to the intermediaries to take deli very of the bonds or receive paymet in cash on specified dates.\n\nThe appellant on the death of his father became entitled to 2/ 3rd of the Zamindari property and compensation therefor.\n\nHe took delivery of the compensation bonds of the value of Rs. 42, 750 I from the Compensation Officer, Lakhimpur while bonds of the value of Rs. 21,250 were received by his brother Hikmat Hakim Khan.\n\nThe total amount of bonds received by the appellant and his brother aggregated Rs. 64,000.\n\nOn 14 April, 1959 the decree-holder applied to the Collector, Kheri for an order that the appellant and his brother do return the bonds which they had received from the Compensation Officer failing which their movable and immovable properties to the\n\nextent of these bonds be attached for liquidation of their debts.\n\nThe Collector on 17 August, 1959 rejected the application. The decree-holder preferred an appeal.\n\nThe appeal was dismissed by the Additional Commissioner, Lucknow on 17 February, 1960. The decree-holder thereupon commenced revision proceedings before\n\nAZl.!AT ltHAN Y. BOARD OF REVENUE (Ray, J.)\n\nthe Board of Revenue.\n\nOn 30 August, 1960 a member of the Board of Revenue allowed the revision.\n\nOn 6 September, 1960 another member of the Board of Revenue concurred in the order.\n\nThe Board asked the Collector to take one or other of the three steps, namely, the treasuries to stop payment of money on instalment in respect of the compensation bonds or direct the Compensation Officer to hand over bonds of the face value of Rs. 32,000 reported to be remaining with him for the liquidation of the debts or to attach the movable properties of the appellant and his brother for, the liquidation of debts.\n\nThe appellant thereafter made an application to the High Court under Article 226 of the Constitution for an order quashing the order and directions of the Board of Revenue. The learned Single Judge quashed the order of the Board of Revenue save and except the direction directing the Compensation Officer to hand over bonds of the face value of Rs. 32,000 reported to be remain ing with him for liquidation of debts.\n\nThereafter the decree-holder preferred an appeal.\n\nThe Bench of the High Court was divided in their opinion.\n\nThe matter was placed before the third learned Single Judge.\n\nThe order of the High Court was that direction No. 3 of the Board of Revenue, namely, attachment of movable and immovable properties of the appellant and his brother was quashed.\n\nThe High Court upheld the other two orders of the Board of Reve1me in regard to stoppage of payment ot instalment money on the bonds by the treasuries and direction on the Compensation Office!\\ to hand over the bonds of the face value of Rs. 32,000 remaining with him for liquidation of the debts.\n\nCounsel for the appellant contended that the Board of Revenue did not have any power to issue the directions. In the present case, the decree was passed under section 14 of the 1934 Act.\n\nUnder section 19 of the 1934 Act the Special Judge passing the decree is to send the same to the Collector for execution in accordance with the provisions of Chapter V of the 1934 Act.\n\nThe Special Judge under section 19 of the 1934 Act is also to infonn the Collector of the nature and extent of the amount of the secured debt which is not legally recoverable otherwise than out of the compensation and rehabilitation grants payable to the Landlord in in respect of the mortgaged estate.\n\nThe U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the\n\n1950 Act) came into force on 26 January, 1951.\n\nAs a result of the 1950 Act sections 23Aand 2~B were introduced into the 1934 Act Section 23A speaks of compensation and rehabilitation grant to be placed at the disposal of the Collector.\n\nSection 23B\n\nSUPJ.llllti! toul.T IUIPORTS\n\n[1971) SUPP. 8.C.J.,\n\nA speaks of liquidation of secured debts recoverable both from compensation and rehabilitation grant. The sections are set out hereunder:-\n\n\"23A. Compensation and rehabilitation grant to .be placed at the disposal of the Collector :-The Collector shall require the Compensation Officer and Rehabilitation Grants Officer as may be necessary to place at his disposal in pursuance of section 70 of the U. P. Zamindari Aboli tion and Land Reforms Act, 1950, the amount of com pensation money and rehabilitation grant payable to the landlord in respect of his proprietary i; ights in land reported to be liable to attachment or sale under the provisions of sub-section (2) of section 19.\n\n23B. Liquidation of secured debt recoverable from compensation and under rehabilitation grant :-(1) With out prejudice to the provisions of Section 8 of the U. P.\n\nZamindar's Debt Reduction Act, 1952. the amount or the bonds on account of compensation or rehabilitation grant received by the Collector in pursuance of the requisition under Section 23-A shall be expended or utilised by the Collector in liquidation of the amount of the secured debt which having regard to the provisions of the U. P.\n\nZamindar's Debt Reduction Act, 1952 was secured on the proprietary rights in land in respect of which such money has been received.\n\n(2) If any balance out of the compensation and ; eha bilitation grant received by the Collector in pursuance of the requisition under Section 23-A remains in the hands of the Collector after utilising the same in accordance with the provisions of sub-section (!), such balance shall be utilised by the Collector in discharging the debts, other than the debts, referred to in the said sub-section in order of priority\".\n\nBoth these sections of the 1934 Act refer to section 70 of the 1950 Act.\n\nSection 70 of. the illid Act is as follows : - \"Compensation money to be placed at the disposal of the Court or authority : Where before any Court or authoriiy any suit or proceeding is pending which directly or indirectly affects or is likely to affect the right of any person to receive the whole or part of the compensation determined under Chapter III, the Court or authority may require the Compensation Officer to place at its disposal the amount so payable and thereupon the same shall be disposed of in accordance with the orders of such Court or authority\".\n\nAZMAT KHAN V. BOAllD OP JlEVENUli (Ray, J.)\n\nThe Collector, therefore, by reason of the provisions of the 1934 Act and the 1950 Act requires the Compensation Officer and the Rehabilitation Officer to place the amount of compensation at his disposal. The Collector on receipt of the grant is to expend or utilise the same in liquidation of the amount of the secured debt and if the balance .remains it is to be utilised in discharging the debts other than those mentioned in section 23-B (I) of the 1934 Act, in order of priority.\n\nBy reason of the provisions contained in section 70 of the 1950 Act and section 23A of the 1934 Act the compensation money is sent for by the Collector for the purpose of liquidation of secured debt on which decree is passed.\n\nThe Compensation Officer under rule 77(1) of the Zamindari Abolition and Land Reforms Rules. 1952 could issue notice to the intermediary directing him to take delivery of the bonds. The issue of a notice would not dothe the intermediary with the right to take away the bonds because under section 18 of the 1'34 Act the decree-holder becomes entitled to recover the amount of the decree in the manner and to the extent mentioned in the 1934 Act.\n\nThe proviso to section 18 of the 1934 Act enacts that the secured debt shall be recoverable from the compensation and rehabilitation grants as though the security had not been extinguished.\n\nThe question, in the present case, is whether the appellant could lawfully obtain delivery of the bonds from the Compensation Officer.\n\nSections 23A and 23B of the 1934 Act require that the amount or the bonds on account of compensation or rehabilitation grant received by the Collector shall be expended or utilised by the Collector in liquidation of the amount of the secured debt.\n\nUnder section 23B of the 1934 Act the bonds are received by the Collector in pursuance of the requisition under section 23A of the 1934 Act.\n\nThe absence of the service of a requisition cannot confer a right on the judgment-debtor to take away the compensation money or bonds.\n\nThe principle is actus curia neminem gravabit.\n\nThe decree-holder under tbe provisions of the relevant statu tes was entitled to be paid out of the compensation grant monies in satisfiaction uf the decree.\n\nIf the Collector had required the Com pensation Officer under section 23A of the 1934 Act to place at his disposal pursuant to section 70 of the 1950 Act the compensation money, the bonds could not have been taken delivery of by the appellant.\n\nThe Board of Revenue rightly gave the directions to secure compliance with the provisions of the statute and performance of statutory duty by the Collector as we!! as the Compensation Officer. . The appellants were not entitled to receive the bonds without satisfying the decree.\n\nThe appellants were wrong in doing so.\n\nThe appellant could not take advantage of his own wrong.\n\nThat is why the Board of Revenue correctly directed the\n\nSUPll!MB COUllT llBPOllTS [1971] SUPP. s.c.ll.\n\nstoppage by the troasuries of payment of instalment money on the bonds.\n\nThe other direction by the Board of Revenue requiring the Compensation Officer to band over the bonds remaining with the Compensation Officer was in aid of valid compliance with sections 23A and 23B of the 1934 Act as well as section 70 of the 1950 Act.\n\nThe jurisdiction and authority of the Board of Revenue in the present appeal touched direCtly on the performance of statutory obligations by statutory authorities.\n\nThe compensation bonds are required by the statute to go to the Collector for liquidation of secure.d debts.\n\nThe judgment debtor is not entitled to the compensation bonds without liquidation of the debts in accordance with the provisions of the statute.\n\nThe High Court rightly upheld the directions of the Board of Revenue.\n\nThe appeal js therefore dismissed.\n\nThe parties will pay and bear their own costs in thls Court.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 55, "entities": [{"text": "AZMAT AZIM KHAN", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "AZMAT AZIM KHAN", "offset_not_found": false}}, {"text": "BOARD OF REVENUE, UTTAR PRADESB, ALLAHABAD\n\n& ORS", "label": "RESPONDENT", "start_char": 17, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "BOARD OF REVENUE, UTTAR PRADESH, ALLAHABAD & ORS", "offset_not_found": false}}, {"text": "A N. RAY", "label": "JUDGE", "start_char": 109, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "A.N. 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"end_char": 3144, "source": "regex", "metadata": {"linked_statute_text": "the Zamindari Abolition and Land Reforms Rules, 1953", "statute": "the Zamindari Abolition and Land Reforms Rules, 1953"}}, {"text": "s. 18", "label": "PROVISION", "start_char": 3360, "end_char": 3365, "source": "regex", "metadata": {"linked_statute_text": "the Zamindari Abolition and Land Reforms Rules, 1953", "statute": "the Zamindari Abolition and Land Reforms Rules, 1953"}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 3554, "end_char": 3560, "source": "regex", "metadata": {"linked_statute_text": "the Zamindari Abolition and Land Reforms Rules, 1953", "statute": "the Zamindari Abolition and Land Reforms Rules, 1953"}}, {"text": "s. 23B", "label": "PROVISION", "start_char": 3565, "end_char": 3571, "source": "regex", "metadata": {"linked_statute_text": "the Zamindari Abolition and Land Reforms Rules, 1953", "statute": "the Zamindari Abolition and Land Reforms Rules, 1953"}}, {"text": "s. 23B", "label": "PROVISION", "start_char": 3804, "end_char": 3810, "source": "regex", "metadata": {"linked_statute_text": "the Zamindari Abolition and Land Reforms Rules, 1953", "statute": "the Zamindari Abolition and Land Reforms Rules, 1953"}}, {"text": "s. 70", "label": "PROVISION", "start_char": 4400, "end_char": 4405, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 23A and 23B", "label": "PROVISION", "start_char": 5106, "end_char": 5121, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 70", "label": "PROVISION", "start_char": 5149, "end_char": 5154, "source": "regex", "metadata": {"statute": null}}, {"text": "Encumbered Estates Act, 1934", "label": "STATUTE", "start_char": 7123, "end_char": 7151, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 7273, "end_char": 7282, "source": "regex", "metadata": {"linked_statute_text": "Encumbered Estates Act, 1934", "statute": "Encumbered Estates Act, 1934"}}, {"text": "Zamindari Abolition and Land Reforms Act, 1951", "label": "STATUTE", "start_char": 7507, "end_char": 7553, "source": "regex", "metadata": {}}, {"text": "Article 226", "label": "PROVISION", "start_char": 9639, "end_char": 9650, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 10798, "end_char": 10808, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 10833, "end_char": 10843, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 11037, "end_char": 11047, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 11327, "end_char": 11373, "source": "regex", "metadata": {}}, {"text": "sections 23Aand 2", "label": "PROVISION", "start_char": 11483, "end_char": 11500, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 11537, "end_char": 11548, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "Section 23B", "label": "PROVISION", "start_char": 11645, "end_char": 11656, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "section 70", "label": "PROVISION", "start_char": 12091, "end_char": 12101, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "Zamindari Aboli tion and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 12115, "end_char": 12162, "source": "regex", "metadata": {}}, {"text": "section 19", "label": "PROVISION", "start_char": 12381, "end_char": 12391, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Aboli tion and Land Reforms Act, 1950", "statute": "Zamindari Aboli tion and Land Reforms Act, 1950"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 12534, "end_char": 12543, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Aboli tion and Land Reforms Act, 1950", "statute": "Zamindari Aboli tion and Land Reforms Act, 1950"}}, {"text": "Debt Reduction Act, 1952", "label": "STATUTE", "start_char": 12569, "end_char": 12593, "source": "regex", "metadata": {}}, {"text": "Section 23", "label": "PROVISION", "start_char": 12734, "end_char": 12744, "source": "regex", "metadata": {"linked_statute_text": "Debt Reduction Act, 1952", "statute": "Debt Reduction Act, 1952"}}, {"text": "Debt Reduction Act, 1952", "label": "STATUTE", "start_char": 12906, "end_char": 12930, "source": "regex", "metadata": {}}, {"text": "Section 23", "label": "PROVISION", "start_char": 13162, "end_char": 13172, "source": "regex", "metadata": {"linked_statute_text": "Debt Reduction Act, 1952", "statute": "Debt Reduction Act, 1952"}}, {"text": "section 70", "label": "PROVISION", "start_char": 13493, "end_char": 13503, "source": "regex", "metadata": {"linked_statute_text": "Debt Reduction Act, 1952", "statute": "Debt Reduction Act, 1952"}}, {"text": "Section 70", "label": "PROVISION", "start_char": 13522, "end_char": 13532, "source": "regex", "metadata": {"linked_statute_text": "Debt Reduction Act, 1952", "statute": "Debt Reduction Act, 1952"}}, {"text": "section 23", "label": "PROVISION", "start_char": 14564, "end_char": 14574, "source": "regex", "metadata": {"statute": null}}, {"text": "section 70", "label": "PROVISION", "start_char": 14662, "end_char": 14672, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 14693, "end_char": 14704, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 15137, "end_char": 15147, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 15310, "end_char": 15320, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 23A and 23B", "label": "PROVISION", "start_char": 15622, "end_char": 15642, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23B", "label": "PROVISION", "start_char": 15877, "end_char": 15888, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 15983, "end_char": 15994, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 16418, "end_char": 16429, "source": "regex", "metadata": {"statute": null}}, {"text": "section 70", "label": "PROVISION", "start_char": 16483, "end_char": 16493, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 23A and 23B", "label": "PROVISION", "start_char": 17336, "end_char": 17356, "source": "regex", "metadata": {"statute": null}}, {"text": "section 70", "label": "PROVISION", "start_char": 17384, "end_char": 17394, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_447_459_EN", "year": 1971, "text": "BALRAJ IWANNA & ORS.\n\nMOTi RAM\n\nApril 22, 1971\n\n[C. A. VAIDIALINGAM AND A. N. RAY, JJ.] 8\n\nIndian Penal Code (Act 45 of 1860), s. 499-Necessity of complainant stating -actual words used by accused-When arises.\n\nCodt of Criminal Procedure (Act 5 of 1898), ss. 202 and 203-lurisdictiOJI of magistrate holding preliminary enqrary-Scope of.\n\nPractice and Procedure-Applicability of exceptions to s. 499 to a case -If may be considered at the preliminary stage.\n\nThe respondent filed a complaint against the appellants under s. 500 l.P.C. alleging that they made certain defamatory allegations against him.\n\nAccording to him the appellants passed a resolution suspending him from municipal service, that in the course of the discussion relating to the pas sing of the resolution, all the appellants made wild and baseless allegations involving moral turpitude against the respondent, and after passing the resolution the appellants with the ulterior motive of maligning the respon D dent, gave publicity to the resolution in the local newspapers with large cir ailation. A report containing the allegations which was sent by tho Secre tary of the Corporation to the Commissioner was given in evidence.\n\nThe Magistrate dismissed the complaint under s. 203, Cr. P.C. on two grounds, namely, (1) there was no evidence on record as to which of the appollailts made which allegations against the respondent, and in the absence of such an important ingredient no prima facie case against any of the appellants could be said to have been made out, and (2) the resolu tion passed by. the Standing Committee and the discussion proceding it were covered by the exceptions to s. 499, I.P.C. The sessions Judge dis-·· missed the revision of the complainant summarily.\n\nTho High Court set aside the order of the Magistrate and directed further inquiry on the grounds that: (!) it could not be said that there was no evidence as to which member of the Standing Committee made al\n\nlegations against the respondent, as the evidence implicated all the members of the Standing Committee including the appellants in the charge of male ing the defamatory allegations contained in the report and (2) the appellants were not protected by the Exceptions to •· 499.\n\nIn appeal to this Court,\n\nHELD: (!) While it is desirable that the actual words •lated to have been used by the accused which are alleged to be defamatory should be reproduced by the complainant, in cases where the words spoken are too many or the statements are too long, it will be the height of technicality to insist that tho actual words and the entire statements should be reproduced verbatim. The object of having the actual words before the court is to enible it to consider whether tho words are defamatory. That purpoao .,.; n be served if the complainant is able to reproduce in his complaint or evidence, in a substantial measure, the words of imputation alleged to have been uttered. From the point of view of the accused also it is\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.lt.\n\nnecessary that the matters alleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations they have to meet. But a complaint cannot be thrown out on the mere ground that the actual words spoken had not been stated in the complaint. It is only if the case of a complainant is that each of the accused made different statemei; rts that it would be necessary for the complainant to specify the\n\nactual words spoken by each of the accused.\n\n[4578-F]\n\nIn the present case, on the averments made in the complaint which refel'.8 to various matters referred to in the report, the complainant bad furnished in a substantial measure the words of imputation, whlch according to him were defamatory. When the case of the complainant' was. that all the appellants made the statements referred to in the report. and he was prepared to go to trial on that footing, the question of the complainant stating the words alleged to have been used by the individ11al accused did not arise. [457G-H; 458B]\n\nEnglish decisions dealing with libel, held not applicable on all fours.\n\n[457A8]\n\nSarai Chandra Das & Anr. v. State, A.I.R. 1952 Orissa 351, Krishnarao v. Firm Radhakisan Ramsahai & Anr., [1956] I.LR. Nag. 236, Emperor v. Col. Bholanath, 51 I.LR. 1929 All. 313, K. S. Namjtmdaiah v.\n\nSetti Chikka Thippanna, (1952] Cr. L J. Mysore 1633 and Dhruba Charan Khandal v. Dinabandhu Patri, A.I.R. 1966 Orissa 15, referred to.\n\n(2) Under ss. 202 and 203 Cr. P.C. the Magistrate has to see whether a prima facie case is made out against the accused on the materials and evidence placed before him by the complainant and not whether the evidence is sufficient to warrant a conviction. [4520-H ; 453A-8]\n\nIn the present case, the approach of the Magistrate was fallacious in the face of the allegations by the respondent that all the appellants made the statements referred to in the report. [458F]\n\nChandra Deo Singh v. Prokash Chandra Bose, [1964] 1 S.C. R. 639, followed.\n\n(3) It was also unnecessary for the High Court to consider the applicability of the Exceptions to s. 499 I.P.C., at this stage. All the oefencethat may be available to the appellants will have to be gone into during the trial of the complaint. (4598-C]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 14 of 1971.\n\nAppeal by special leave from the judgment and order dated August 26, 1970 of the Delhi High Court in Criminal Revision No. 138 of 1968.\n\nC. K. Daphtary and B. P. Moheshwari, for the appellants.\n\nThe respondent appeared in person.\n\nThe Judgment of the Court was delivered by\n\nVaidialingam, J.-This appeal, by special leave, is directed a2ainst the judgment and order dated August 26, 1970 of the Delhi High Court in Criminal Revision No. 138 of 1968 dismissing under\n\nB. KHANNA v. MOTill.AM (Vaidia/ingam, J.)\n\nSection 203 Cr. P. C. the complaint filed by the respondent under Section 500 I. P. C.\n\nThe respondent Moti Ram filed a complaint in the court of the Sub-Divisional Magistrate, Delhi against the seven appellants under section 500 I. P C. alleging that they made certain allegations against him which were defamatory in character and had also passed a resolution placing the respondent under suspension.\n\nThe complaint filed by the respondent is a fairly lengthy one and refers to various matters.\n\nBut the relevant facts which could be gathered from the same appear to be as follows :\n\nThe respondent during December, 1964 was serving as a.\n\nLiaison Officer, Municipal Corporation, Delhi.\n\nThe appellants were among the members of the Standing Committee of the Corporation at that time.\n\nThe first appellant Balraj Khanna was bitterly inimical towards the respondent and was bent upon causing harm\n\nto him.\n\nHe wielded considerable influence over the members of the Standing Committee.· At his instance a requisition was given by the members of the Standing Committee to its Chairman to summon a meeting of the Committee to enable them to move a resolution for the immediate suspension of the respondent from his office.\n\nAro:irdingly a meeting of the Standing Commjttee was held on December 10, 1964.\n\nThe said meeting was attended. not only by the Commissioner and other officers of the Corporation, but also by the press reporters.\n\nIn that meeting the appellants made very serious allegat;!ons of a defamatory nature against the respondent and passed unanimously a resolution placing him under immediate suspension.\n\nThe allegations made against the respondent and the fact of his suspension from office were given wide publicity, with the result that it brought down the respondent in the estimation of his friends causing harm to his reputation.\n\nP. W. 3, who was the Secretary of the Corporation, and who attended the meeting of the Standing Committee on December 10, 1964 sent a report the next day Ex. P. w. 3/B to the Commissioner regarding the allegations stated to have been made against the respondent by the appellants.\n\nThe allegations referred to in P. W. 3/B are as follows :\n\n\"l. Since its inception in 1958 the Corporation has executed a very heavy programme of works for improving the sanitation of the Corporation and provide other civic amenities, but no publicity was given to these activities and the public has remained more or Jess in the dark.\n\nOn the other hand the Corporation is adversely criticised even for minor omissions and commissions. The L. 0. has, thus not performed the duties which are required of the post he has been holding and has been deficient in the performance of his duties.\n\n2!1-1 S.C. Inc!ia/71\n\nSUPREMB COIJ!t T lla~ORTS [1971] SUPP. s.c.I\\.\n\ni. 'J1k: L. 0. is not working in harmony with the representatives of the Pr_ess who attend the Corporation office o over the meetings of the Corporation and its Committee, so much so that these repres11Rtatives have desired that he be not required to come to their rooms in the Corporation office.\n\n3. Instead of applying himself seriously to his official work he indulges in estranging one member from the other, one officer for the other and one political party for the other.\n\nHe has even been trying to sow seeds of estrangement between the Mysore and the Commissioners.\n\n4. In the days when he was Chief Reporter to the Hindustan Times, he resorted to undesirable means to achieve bis desired ends. ·\n\n5. His association with some of the non Official Presidents of the erstwhile Delhi Municipal Committee has bro11ght nothing but slur to their good names.\n\n6. He is known for indulging in acts of moral t11rpitude and for seducing unsuspecting girls and women.\"\n\nIn the complaint it is further stated that in October, 1964, all the seven appellants entered into a conspiracy to defame the respondent and remove him from the municipal service and passed a resolution on December 10, 1964 placing him under suspension.\n\nIt is further stated that apart from the seven appellants, three other members of the Standing Committee were also parties to this resolution.\n\nIn particular, it is alleged in the complaint that in the course of discussion relating to the passing of the resolution, all the seven appellants made wild and baseless allegations involving moral turpitude against the respondent.\n\nAfter passing the resolution the appellants with the ulterior motive of maligning the respondent and lowering him in the estimation of the public, gave publicity to the resolution in the local newspapers with large circulation.\n\nThe allegations stated to have been made by the appellants are those referred to in Ex. P. W. 3 /B. The respondent alleged that the appellants knowingly and maliciously made false and defamatory allegations against him and prayed for taking action against them.\n\nBefore the Magistrate the respondent and five other witnesses were examined under Section 202, Cr. P. C. and after consideration of the evidence, the Magistrate dismissed the complaint under Section 203, Cr. P. C.\n\nThe dismissal of the complaint by the Magistrate is rested on two grounds, namely, (l) there is no evidence on record as to which of the appellants made which allegation against the respondent Q.lld in tile absen~ of Slll:h an important ingredient, no prima facie ~ ll!ly of the appellants\n\nB. KHANNA v. MOTi RAM (Vaidlalingam, J.)\n\ncan be said to have been made out, and (2) the resolution passed by the Standing Committee and the discussion preceding it are covered by the Exceptions to Section 499 I. P. C. and hence the appellants were well within their rights in passing a resolution recommending suspension of the respondent.\n\nThe Additional Sessions Judge, Delhi, dismissed the revision of the respondent summarily stating that the material on record was not sufficient to justify any direction being given to the trial Magistrate to make further inquiry into the complaint.\n\nThe Sessions Judge has further stated that the evidence produced by the respondent is too , general to make out a case to summon any one of the appellants.·\n\nThe High Court, after a reference to the material evidence on record, as well as the allegations stated to have been made by the appellants, has held that the approach made by the Magistrate for dismissing the complaint was erroneous.\n\nIn the view of the High Court the evidence on record goes to show that the case of the respondent is that all the members of the Standing Committee including the appellants had made the allegations against the respondent, which had been reproduced by the Municipal Secretary in Ex. P. W. 3/B.\n\nOn this reasoning the High Court held that it cannot be said that there is no evidence as to which member of the Standing Committee made the allegation against the respondent.\n\nAccording to the High Court the evidence as it stands implicates all the members of the Standing Committee including the appellants herein ih the charge of making the defamatory allegations against the respondent.\n\nThe High Court has further held that if at a later stage when witnesses are examined, it is found that only some of the appellants made the allegations and also what those allegations are, it will be open to the trial Magistrate to discharge such of the accused against whom there is no evidence of having made any defamatory allegation.\n\nThe High Court is also of the view that the reasoning of the Magistrate that the appellants are protected by the Exceptions to Section 499 I. P. C. is also not correct.\n\nUltimately, the High Court set aside the order of the Magistrate dismissing the complaint under Section 203 Cr.\n\nP. C. and directed further inquiry to be made into the complaint by the Chief Judicial Magistrate. Delhi or by any Magistrate subordinate to him, and to dispose of the same in accordance with law.\n\nMr. C. K. Daphtary. learned counsel for the appellants, contended that in cases of defemation it is essential that the actual words used should be set out in the complaint and a reproduction of the gist or substance of the words used is not enough.\n\nHe further contended that a general allegation that the appellants and other members of the Standing Committee made defamatory statements referred to in Ex. P. W. 3/B is not a sufficient compliance\n\nSUPllEMll COURT llEPOllTS [1971] SUPP. s.c.R.\n\nwith the requirement of law to enable the Magistrate to take 'further action.\n\nOn the other hand, according to the learned counsel. the complainant must specifically aver which particular allegation was made by which of the accused, in which case alone the indiviual aused will have an opportunity of effectively meeting the\n\nputations alleged to have been made by him.\n\nIn this connec- !10n Mr. Daphtary referred us to certain English decisions governmg the law of Libel and he also invited our attention to certain decisions of the High Courts.\n\nOn the other hand, the respondent, who appeared in person, has urged that at this stage the Court is concerned only with the question whether he has prima facie made out a case for his complaint being inquired into by the Magistrate and not whether he will be able to obtain a conviction of all or any of the appellants. That\n\nstage~ he pointed out, will arise only during the course of the trial.\n\nHe urged that in his complaint he has made a categorical statement that all the appellants have made the statements referred to in Ex. P. W. 3iB. As to whether the statements have been properly recorded by the Municipal Secretary, is again a matter which will arise only during the course of the trial.\n\nAccording to him the allegation made by him in the complaint regarding the statements said to have been made by the appellants is sufficient for further action being taken by the Criminal Court. He further contended that the statements alleged to have been made by the appellants have been substantially reproduced in Ex. P. W. 3 /B and it has been placed before the Court in the complaint and that is a sufficient compliance with the requirement of Jaw.\n\nHe pleaded that the principles laid down by the English Courts regarding the law of Libel are not applicable when considering a case of defamation under the Indian Penal Code.\n\nHe has also referred us to certain decisions in support of his contentions.\n\nBefore we refer to the decisions cited by Mr. Daphtary and the respondent on merits, it is necessary to clear the ground by appreciating the nature of the jurisdiction exercised by the Magistrate under Sections 202 and 203 Cr. P. C.\n\nIn Chnndra Deo Singh v. Prokash Chandra Bose and another ('), it has been held by this Court that the object of the provisions of Section 202 Cr.\n\nP. C. is to enable the Magistrate to form an opinion as to whether process should be issued or not.\n\nAt that stage what the Magistrate has to see is whether there is evidence in support of the allegations made in the complaint and not whether the evidence is sufficient to warrant a conviction.\n\nIt has been further pointed out that the function of the Magistrate holding the preliminary inquiry is only to be satisfied that a prima facie case is made out against\n\n(I} [1!164) l S.C.R. 639\n\nB. KHANNA •• MOTi RA)! (Vaidialingam, J.) 453\n\nthe accused on the materials placed before him by the complainant.\n\nWhere a prima fade case has been made out, even though much can be said on both sides, the committing Magistrate is bound to commit the accused for trial and the accused does not come into the picture at all till the process is issued.\n\nThe question arises whether in an action for defamation under Section 500 I. P. C., it is necessary that the actual statements containing the words alleged tc have been used by the accused must be before the court or whether it is enough that the statements alleged to have been made are substantially reproduced in the complaint.\n\nThe further question is whether the complaint in this case is defective in the sense that the actual statements alleged to have been made by the individual accused have not been stated in the complaint.\n\nWe will now refer to the decisions cited by Mr. Daphtary.\n\nHe has referred us; in the first instance, to the passage in Halsbury's Laws of England, Third Edition, Volume 24, page 90 para 161 that for the statement complained of as being a libel or slander to be construed or interpreted, it is essential that the actual words and not merely their substance should be set forth verbatim in the statement of claim or indictment. Again he has referred us to another passage in the same volume as follows :\n\n\"As it is necessary in actions for libel or slander to set forth the actual words complained of in the statement of claim with proper innuendoes, so also it is necessary to do so in an indictment where words are of the essence of the offence.\" (Page 135 para. 249).\n\nIn Charles Bhedlaugh and Annie Besant v. The Queer (') the Court of Appeal was dealing with an indictment for publishing an obscene book.\n\nBramwell, L. J., observes as follows :\n\n\"In some instances, words are the subject-matter of an indictment; and it follows from this principle, which I have mentioned that wherever the offence consists of words written or spoken, those words must be stated in the indictment ; if they are not, it will be defective upon demurrer, in arrest of judgment or upon writ of error ..... ........ In like manner, there can be no doubt that in an indictment for defamtory libel it was necessary to set out the words complained of, so that the Court might judge whether they were or could amount to a libel ............. it is manifest that where words constitute the offence, they must be stated in the indictment.\n\n(I) 3 Q.B.D. 607\n\n454 .. IUPRl!ME COORT Ri!l'QRTS [1971] SUPP. s.c.R.\n\n, E\n\nI!'\n\nIn. The Capital , and Counties Bank Limited v. George Henty and sons (') Lord Blackburn in dealing with an action for libel states as follows :-\n\n\"The words themselves must have been set out in the declaration or indictment, in order that the Court might be able to judge whether' they were a libel or not. And Uris still remains the law.\"\n\nIn Collins v. Janes (,, Lord Denning quoted with approval the observations of Lord Coleridge, C. J. in Harris v. Waree (') as follows:\n\n\"In libel and slander everything may turn on the form of words, and in olden days plantiffs constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declaration and the proof of them ....... In libel and slander the very words complained of are the facts on which the action is grounded.\n\nIt is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends.\"\n\nIt is clear by a reference to the above English Law. that is an action for libel it is essential that the words themselves must be set out in the indictment and that requirement is insisted to enable the Court to judge whether those words published in writing amount to libel or not\n\nMr. Daphtary referred us to certain decisions dealing with the nature of proof reguired in a prosecution for sedition under Section 124A I. P. C. 1 But we do not think it necessary to refer to those decisions as we are not at this stage concerned with the proof of the statements attributed to the appellants and whfoh. according to the respondent, are defamatory.\n\nMr. Daphtary also referred us to the decisions in Sarai Chandra Das and another v. The State (') and Krisl111arao \"· Firm Radhakisan Ramsahai and another ('). In the Orissa High Court decision two accused were being tried for an offence under Section 500 I. P. C.\n\nIt is m> doubt stated in: the said decision that in a trial for defan\\atil'>ll it is essential that the words alleged\n\n(I) 7 Appeal Cases 741\n\n(2) [195'1 2 AlUngland Reports 145\n\n(3) [1879] 4 C.P.D. 125 (4). A.tit. 1952 Ot!Ssa 351\n\n(5) 1956 1.i..R. Nagpur 236\n\nB. KHANNA v. MOTi RAM (Vaidialingam, J.)\n\n. to be defamatory in character should be precisely set out and the accused should be individually given notice of what he is charged with, as the words so set out will constitute the foundation for defamation.\n\nIt is further laid down that it is also essential that the words in question should be proved.\n\nA perusal of this decision will show that two accused were being prosecuted for defamation.\n\nIn the complaitit in that case it was stated that both the acused were alle$ed to have made _certain statments. .However. m the sworn. statement the complamant had given a shghtly different version.\n\nIn his evidence before the court the complainant attributed to the different accused different statements. It was, under those circumstances, that the court laid down the proposition referred to earlier.\n\nUnderstood in that context, it is clear that according to the High Court when different statements are attributed to different accused, the statements alleged to have been made by each of the accused must be set out as the individual accused must have noticed as to what is specifically alleged against him.\n\nIn the second case, the Nagpur High Court dealing with a claim for damages for defamation observed as follows :\n\n\"We may point out that in a suit for damages for defamation the law requires that the plaint ought to allege the publication of the dafamtory statement, set out the actual wotds used and also state that they were published or spoken to some named individuals and specify the time and place when and where they were published.\"\n\nOn the other hand, the respondent has invited our attention to the decisions reported in Emperor v. Col. Bho/anath (1), K. S.\n\nNamjundalah v .. Sett/ Chikka Tippanna (') and Dhruba Charan Khandal v. Dlnabandhu Patri (').\n\nIn the first decision of the Allahabad High Court, Mukherji, J. observed :\n\n\"While I am not prepared to lay down, as a universal proposition, that in no case where the actual wotds used have not been ptoved a conviction for defamation by wcrd of mouth cannot be maintained, it must be conceded that in the majatity of cases it should be so. Defamation is define(! as follows :-\"-\"Whoever by words ..... . makes or pUbllshes any imputation concern.ing any person intended to harm, or knowing or haYi.ilg reason to\n\n(I) SI I.L.R. 1929 All. 313 (2) 1952 Criminal Law Journal Mysore 1633\n\n(3) A.1.R. 1966 OflSSa 15.\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nbelieve that such imputation will hann, the reputation ..... is said ......... to defame that person\". When the question arises as to whether the words used were intended to harm or had the effect of harming the reputation, the court must be put in possession not only of the words used, but also of the context in which they were used ... \" King J., the other learned Judge of the bench observes :\n\n\"I may here remark that in my opinion it is unnecessary to prove the exact words used by the accused, for the purpose of supporting a conviction for oral defamation. It is sufficient to prove the purport or substance of the defamatory imputations.\n\nNo honest witness would profess to remember the exact words used by a person who has been speaking for even 15 minutes.\n\nAt the most he may remember some striking phrase or expression. But a witnesse's failure to recalf the exact words used or the exact context in which they were spoken is immaterial, provided that he can give a sufficiently clear account of the purport of the defamatory remarks.\n\nAlthough the learned counsel for the appellant argued that no conviction could be sustained unless the exact words were proved, he was unable to quote any authority for his proposition, and I am not prepared to accept it.\n\nEnglish rulings on the English Law of libel seem beside the point when the task before us is to apply the provisions of section 499 of the Indian Penal Code to a case of alleged defamation by spoken words.\"\n\nIn the second case the Mysore High Court has laid down that it is sufficient for the purpose of Sections 499 and 500 I. P. C. that if witnesses are agreed in a substantial measure on the words of imputation uttered as it is bardly possible or necessary to reproduce every word or expression used.\n\nIn the fast decision, the Orissa High Court has laid down that for the purpose of an offence under Section 500 I. P. C. it is enough if the witnesses are agreed in a substantial measure on the words of imputation uttered, for it is not possible even for a most honest witness to reproduce every such word or expression. This decision has also distinguished the earlier decision in Sarat Chandra Das and another v. The State (1) on the ground that the observations contained in that judgment that the precise words uttered against the complainant should find a place in the charge were made in the context of the court dealing with two accused, each of whom was alleged to have made different statements.\n\n(I) A. I. R. 19S2 Orissa JS!\n\nB. KHANNA V. llOTIRAM (Vaidlalingam, J.)\n\nAfter a consideration of the various decisions referred to above, we are of the opinion that the propositions laid down in English decisions dealing with libel that the-actual words alleged to be used must be stated in the indictment cannot be applied on all fours when dealing with the cases of defamation by spoken words under Section 499 I. P. C. It will be highly desirable no doubt if the actual words stated to have been used by an accused and which are alleged to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief.\n\nBut in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim.\n\nThe object of having, if possible, the actual words or the statements before the court is to enable it to consider whether those words or the statements are defamatory in nature.\n\nThat purpose or object will be. served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose.\n\nTherefore it is to his interest to get a proper adjudication from the court that as far as possible the words spoken or the statements actually made and which he alleges to be defamatory are before the court.\n\nBut a complaint cannot be thrown out on the mere ground that the actual words spoken or the statements made have not been stated in the complaint.\n\nFrom the point of view of accused also it is necessary that the matters 11lleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations that they have to meet.\n\nIn this case we have already referred to Ex. P. W. 3 I B. which, according to the complainant, contains the statements made by the appellants durin_g the discussion of the resolution leading to his suspension on December 11. 1964. The High Court, in this connection, has averted to the evidence of P. Ws. I, 3 and\n\n4 on this aspect. As to how far the evidence of those witnesses G is to be accepted, is a matter which will arise only during the trial .of the complaint From the averments made in the complaint, which refers to various matters referred to in Ex. P. W. 3 I B, we are of the opinion, that the. c0mplainant has furnished in a substantial mea5ure the words of imputation, which, according to him, are defamatory .. Therefore, the contention of Mr. Daphtary that H the cO!llplaint is defective jnasn:iuch as it does not contain the actual words aneged to have been spoken by the appellants has to be rejected.\n\nSUPREME COURT REPORTS (1971] SUPP. s.c.R.\n\nThe further question is whether the complaint is defective for the reason that the actual statements alleged to have been made by the individual accused have not been stated therein.\n\nSo far as this aspect is concerned, if the case of the complainant is that each of the appellants made different statements or spoke different words, which are 'defamatory, then it is absolutely necessary that the complaint must specify the words spoken or the statements made by each of the appellants.\n\nBut that is not the allegation in the complaint.\n\nWe have already referred to the fact that it is specifically stated in the complaint that during the course of the discussion of the resolution, all the seven appellants made a wild and baseless allegation against the complainant involving moral turpitude.\n\nAccording to him those statements are contained in Ex. P. W. 3 / B. The evidentiary value of Ex. P. W. 31 B does not arise for consideration at this stage.\n\nThe further question whether the complainant will be able to prove his allegation that all the seven appellants made all or any of the statements contin ed in Ex. P. W. 3/B, is again a matter which does not arise for consideration at this stage.\n\nWe are only concerned to find out what are the allegations made by the respondent in his complaint against the appellants. When the case of the complainant is that the seven appellants made the statements eferred to in Ex.\n\nP. W. 3/B and he is prepared to go to trial on that footing, the question of the complainant being made to state the statements alleged to have been made by the individual accused does not at all arise.\n\nSuch a situation will arisi: only when the case of the complainant is that different statements were made by cfifferent accused, who are before the court.\n\nThe Magistrate dismissed the complaint on the ground that there is no evidence on record as to which of the appellant made which allegation against the respondent and in the absence of such an important ingredient, no prima facie case against any of the appellants can be said to have been made out. . This, in our opinion, is a fallacious approach made by the Magistrate in the face of the allegation made by the respondent •that all the seven appellants made the statements referred to in Ex. P. W. 3/B. In our opinion, the High Court has made a correct approach when it held that the evidence, as it stands implicates all the members of the Standing Committee, including the appellants in the charge of making the statements alleged to be defamatory and contained in Ex. P. W. 3 / B.\n\nWe are in entire agreement with the reason ing of the High Court on this aspect.\n\nBefore concluding the discussion, it is to be stated that the trial Magistrate has given an additional reason for dismissing the complaint. That reason is that the resolution passed by the Standing Committee on December I J, 1964 and the discussion preced\n\ning it by the members of the Standing Committee including the\n\nB. KHANNA v. MOTi R;.M (Vaidialingam, J.) 459\n\nappellants is covered by tbe Exceptions to Section 499 I. P. C.\n\nA Unfortunately, the High Court also has touched upon this aspect and made certain observations.\n\nIn our opinion, tbe question of the application of the Exceptions to Section 499 I. P. C. does not arise at this stage. Rejection of the complaint by the Magistrate on the second ground mentioned above cannot be sustained. It was also unnecessary for tbe High Court to have considered this aspect B and differed from the trial Magistrate.\n\nIt is needless to state tbat the question of applicability of the Exceptions to Section 499 I. P. C. as well as all other defences that may be available to the appellants will have to be gone into during the trial of the complaint.\n\nTo conclude we are satisfied that tbe High Court's order C setting aside tbe order of tbe Magistrate dismissing the complaint under Section 203 Cr. P. C. and directing further inquiry to be made in the complaint of tbe respondent is correct.\n\nThe appeal fails and is dismissed.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 38, "entities": [{"text": "BALRAJ IWANNA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "BALRAJ KHANNA & ORS", "offset_not_found": false}}, {"text": "MOTi RAM", "label": "RESPONDENT", "start_char": 22, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "MOTI RAM", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 72, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "A.N. 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N. ANANTI PADMANABIAB ETC.\n\nApril 22, 1971.\n\nB rs. M. SIKRI, c. ]., c. A. VAIDIAI!INGAM AND A. N. RAY, ]'J.J\n\nCode of Crimmal Procedure, 1898, s. 4]!).-Difference of opinion bet• ween two judges of High Court-Reference to third 'judge-Third judRe can deal with whole case and entertain new plea.\n\nPrevention of Corruption Act, 1947, s. SA and Code of Criminal Procedure, s. 12-Jurisdiction of Magistrate under s. SA does not extend to whole of India-Magistrate can exercise jurisdiction under s. SA. throughout district in which he holds charge but not outside district.\n\nThe appellants were charged with offences under s. 5(2) & 5(1) (c) and S(l) (d) of the Prevention of Corruption Act, 1947 as well as under ss. 467 and 471 of the Indian Penal Code by the Special Judge, Gauhati. The appellants filed revision petitions in the High Court of Assam & Nagaland.\n\nOn difference of opinion arising between the two Judges of the Division Bench reference was made to a third Judge under s. 429 of the Code of Criminal Procedure.\n\nBefore the third Judge a new plea was advanced on behalf of the appellants, namely that tho Magistrate at Delhi had no jurisdiction to accord sanction to an Inspector of the Delhi Special Police Establishment to investigate the case .in Assam. The third Judge held that an order of a Magistrate of the local jurisdiction was necessary and excepting a Magistrate of the District where the crime was committed no other Magistrate outside the jurisdiction could make an order for investigation. In the result the proceedings before the Special Judge were quashed. In appeal by certificate to this Court,\n\nHELD: (i) The contention that the third learned Judae could only deal with the difference between the two learned Judges and not with the whole case could not be accepted. The language of s. 429 of the Code of Criminal Procedure is explicit that the case with tho opinion of the Judges comprising the court of appeal shall be laid before another Judae of the same court. The other noticeable feature in s. 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge. Further more, the appeal is from the order of the third learned Judge as it must be by reason of the divided opinion of the Bench. [4630]\n\nHethuba & Ors. v. State of Gujarat, Cr. A. No. 100/67 dl 13-3-1970, followed.\n\n(ii) Section 12 of the Code of Criminal Procedure empowers the State Government to appoint besides the District Magistrate, Magistrtes of the first, second or third class in any district and tho State Government may from time to time define local areas within which such Magistrate may exercise all or any of the powers with which they may be invested under the Code. Section 12(2) of the Code of Criminal Procedure enacts that except as otherwise provided the jurisdiction and powers of such Magistrates shall extend throuahout such district It therefore follows that the Maaistrates of the first class of a district have powers within defined local areas within tho district and their jurisdiction and powers may in certain\n\nUNION V. B. N •. ANANTI (Ray, J.) 461\n\ncases extend throughout such district The Magistrate at Delhi can in A certain cases exercise jurisdiction and power throughout the district where he is appointed. [464EG]\n\nIt will not be in consonance with the jurisdiction and structure of courts of Magistrates to allow an order of investigation to be made by a Magistrate of Delhi for investigatiQri of a case in the State of Assam. The reason is that a Magistrate orders investigation in a case which he has power to inquire into or try. The real import of s. SA of the Prevention B of Corruption Act is that investigation is to be done by Police Officers of a certain rank to ensure protection agaj.nst frivolous, prosecution, and it is only with the order of Presidency Magistrate or a Magistrate of the fi.-st class that Police Officers below the ran~ mentioned in the section are al lowed to investigate. It is therefore appropriate that Magistiates in Presi\n\ndency towns or District will. order investigation of cases within their respective jurisdiction. The effect of s. SA of the Prevention of Corruption C Act, is that it is a special Act which confers power on Presidency Magistrates throughout the Presidency town and Magistrates of the first class through out the District when they exercise powers under the Code of Criminal Procedure. Therefore in cases governed by s. SA of the Prevention of Corruption Act, Magistrates of the first class will exercise jurisdiction throughout the district irrespective of defined areas of their jurisdiction within the district by reason of s. 12(2) of the Code of Criminal Procedure.\n\n[46SAE) D\n\nIn the present appeals, the order of investigation made by the Magis.\n\nIrate at Delhi for investigatidn of cases in the State of Assam was not a valid and competent order within the powers of the Magistrate at Delhi.\n\nThe orders of investigation were therefore rightly quashed by the High Court [46SE-F]\n\nCRIMINAL APPELLATE JURISDICilON : Criminal Appeals Nos.\n\nE 158 to 160 of 1970.\n\nAppeals\"from the judgment and order dated March 31, 1969 of the Assam and Nagaland High Court in Criminal Revision Applications Nos. 53, 62 and 71 of 1968.\n\nD. Mookherjee, Avtar Singh and R. N. Sachthey, for the F appellants (in both the appeals).\n\nGobind Das and Lily Thomas, for respondent (in Cr. A. No. 158/1970).\n\n1. P. Mitter and Sukumar Ghose, for respondent (in Cr. A.\n\nG No. 159/1970).\n\nA. S. R. Chari, Naunit Lal and Swaranjit Sodhi, for respondent (in Cr. A. No. 160 of 1970).\n\nThe Judgment of the Court was delivered by:\n\nRay, J~These three appeals are by certificate from the judgment and order dated 31 March. 1969 of the High Court of Assam and Nagaland.\n\nSUPREME COURT REPDRTS [1971] SUPP. s.c.R.\n\nThese three appeals arise out of special cases No. 16 and l 6A uf 1964 pending in the court of the Special Judge. Gauhati In Special Case No. 16 of 1964 Major J. S. Prosad, B. N. Ananthapadamanabhiah and Motiur Rahman were charged under section\n\n120B of the Indian Penal Code read with sections 5(2), 5(1) (c) and 50 )(d) of the Prevention of Corruption Act, 1947 and section 467 I 471 of the Indian Penal Code. In Special Case No. 16A of 1964 charges were framed against S. Chatterjee and Motiur Rehman under section 120B of the Indian Penal Code read with sections 5(2), 5(1)(c) and 5(l)(d) of the Prevention of Corruption Act and sections 467 and 471 of the Indian Penal Code.\n\nThe appellants filed three separate criminal revision petitions in the High Court.\n\nFour contentions were advanced before the High Court.\n\nFirst, that the Special Judge at Gauhati had no jurisdiction to try offences investigated by the Delhi Special Police Establishment as the Delhi Special Establishment Act was not extended to NEFA. Secondly, that under section 6 of the Delhi Special Police Establishment Act, the Delhi Special Police Establishment cannot investigate in a case in any area which is not a Union territory or a railway area without the consent of the Government of the State. lt was contended that the consent of the Government of Assam was not taken.\n\nThirdly, the investigation was carried out by an Inspector of Police under section 5(2) of the Prevention of Corruption Act under an order of a Magistrate of the First-class at Delhi, but the Magistrate did not apply his mind to the matter and mechanically gave the permission.\n\nFourthly, no sanction was taken under section 196A of the Code of Criminal Procedure before cognisance was taken by the court.\n\nThe Dfvision Bench consisting of C. J. and Goswami, J. unanimously rejected the first two contentions but were divided in their opinion as to whether the Magistrate applied his mind to allow the investigation by an Inspector of Police and whether sanction under section 196A of the Code of Criminal Procedure was necessary.\n\nThe matter was thereafter placed before the third learned Judge Sen, J. Before the third learned Judge another contention was advanced as to whether the Magistrate at Delhi had jurisdiction to accord sanction to an Inspector of Police of the Delhi Special Police Establishment to investigate the case in Assam.\n\nThe third learned Judge held that an order of a Magistrate of the local jurisdiction was necessary and excepting a Magistrate of the district where the crime was committed no other Magistrate outside the jurisdiction could make an order for investigation. The third learned Judge also held that the Magistrate at Delhi did not apply his mind to allow the Inspector of Police to do the investigation.\n\nIn the result, the proceedings before the Special Judge were quashed.\n\nUNION V. B. N. ANANTI (, Ray, J.) 463\n\nA question arose as to whether a new contention as to the A competency of the Magistrate at Delhi to sanction investigation could have been raised before the third learned Judge when it had not been raised before the Division Bench.\n\nCounsel for the respondents contended that under section 429 of the Code of Criminal Procedure the case was to be laid before the third learned Judge and the third learned Judge was empowered to deal with B the entire case and the judgment and order would follow the opinion of the third learned Judge.\n\nThis question came up for consideration in the recent unroported decision in Hethubha & Ors. v. The State of Gujarat ('). It was contended in that case on behalf of the appellants that the third learned Judge could only deal with the differences between C the two learned Judges and not with the whole case. This Court\n\nheld that the third learned Judge could deal with the whole case.\n\nThe language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Co•irt of Appeal shall be laid before another Judge of the same Court. The other noticeable feature in section 429 of the D Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge.\n\nl:'urthermore, the appeal is from the order of the third learned Judge as it must be by reason of the divided opinion of the Bench.\n\nThe more important question in the present appeals is whether the Magistrate at Delhi was competent to authorise the investigation of the case.\n\nThe relevant provision is to be found in section SA of the Prevention of Corruption Act, 1947 as it stood prior to its amendment in 1964 and is as follows :- \"Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no Police Officer below the rank-\n\n(a) in the presidency towns of Ma.dras and Ca 1cutta, of an Assistant Commissioner of Police ;\n\n(b) in the presidency town of Bombay of a Superintendent of Police ; and\n\n(c) elsewhere, of a Deputy Supmutendent of Police,\n\nshall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under sub section (2) of this Act, without the order of the Presidency Magistrate or a Magistate of the first class. as the case may be, or make any arrest therefor without a warrant\".\n\n(I) Cr. A.No. 100ofl967 dt. 13-3-1970.\n\nSUPREME COURT REPORTS\n\n[1971] SUPP. S.C.R.\n\nThe words \"Presidency Magistrate or a Magistrate of the First Class, as the case may be\" were construed by counsel for the the appellants to mean that except in the case of Presidency Magistrate it could be any first class Magistrate of any area inasmuch as there was no !imitation with regard to any area of terri torial jurisdiction by a Magistrate of the first class under section SA of the Prevention of Corruption Act, 1947.\n\nReliance was placed by counsel for the appellants on section S of the Code of Criminal Procedure that the investigation under section S(2) of the Code of Criminal Procedure could be according to the provisions of the Code of Criminal Procedure but subject to any enactment regulating the manner or place of investigation.\n\nIt was said that section SA of the Prevention of Corruption Act was a special Act regulating the manner of investigation and therefore the Code of Criminal Procedure would not apply to that extent.\n\nPresidency Magistrate under sections 6 and 18 of the Code of Criminal Procedure are for each of the Presidency towns.\n\nA Presidency Magistrate exercises jurisdiction within the presidency towns for which he is appointed and within the limits of the port of such town.\n\nMagistrates of the first clilss are dealt with under sections 6, 10, 11, 12 and 13 of the Code of Criminal Procedure and their powers of sentence are dealt with by section 32 of the Code of Criminal Procedure. Section 6 speaks of magistrates of the first class, Magistrates of the second class and magistrates of the third class. Section 10 of the Code of Criminal Procedure speaks' of district magistrate in every district outside the presidency town. Section 12 of the Code of Criminal Procedure empowers the State Government to appoint besides the District Magistrate, Magistrates of the first, second or third class in any district and fhe State Government may from time to time define local areas within wbich such Magistrates may exercise all or any of the powers with which they may be invested under the Code. Section 12(2) of the Code of Criminal Procedure enacts that except as otherwise provided the jurisdiction and powers of such Magistrates sb, all t; xtend throughout such district. It therefore follows that the Magistrates of the first class of a district have powers within defined local areas within the district and their jurisdiction and powers may in certain cases extend throughout such district.\n\nThe Magistrate at Delhi can in certain cases exercise jurisdiction and power throughout the district where he is appointed. '\n\nThe words \"Presidency Magistrate or a Magistrate of the first class, as the case may\" in section SA of the Prevention of Corruption Act indicate that a Presidency Magistrate refers to the Presidency town where he exercises jurisdiction and similarly a Magistrate of the first class refers to a Magistrate of the first class of a district exercising power in that district.\n\nA Magistrate does not exercise jurisdiction throughout the length and breadth of India for\n\nUNION V. B. N. ANANTl (Ray, J.) 465\n\npurposes of Code of Criminal Procedure or of Prevention of Corruption Act.\n\nThe Code of Criminal Procedure defines the territorial jurisdiction of Magistrates.\n\nIt will not be in consonance with the jurisdiction and structure of Courts of Magistrate to allow\n\nan order of investigation to be made by a Magistrate of Delhi for investigation of a case in the State of Assam. The reason is that a Magistrate orders investigation in a case which he has power to inquire into or try.\n\nThe real import of section SA of the Prevention of Corruption Act is that investigation is to be done by Police Officers of a certain rank to ensure protection against frivolous prosecution and it is only with the order of Presidency Magistrate or a Magistrate of the first class that Police Officers below the rank mentioned in the section are allowed to investigate.\n\nIt is therefore appropriate that Magistrates in Presidency towns or District C will order investigation of cases within their respective jurisdiction.\n\nThe effect of section SA of the Prevention of Corruption Act is that it is a special Act which confers powers on Presidency Magistrates exercisable throughout the Presidency town and Magistrates of the first class throughout the District where they 1:xercise powers under the Code of Criminal Procedure.\n\nOrdina- 1rily, Magistrates. of the first class may have defined areas within the meaning of section 12(1) of the Code of Criminal Procedure but in cases governed by .section SA of the Prevention of Corruption Act, Magistrates of the first class will exercise jurisdiction throughout the district irrespective of defined areas of their juris diction within that district by reason of section 12(2) of the Code o! Criminal Procedure. In the present appeals, the order of investigation made by the Magistrate at Delhi for investigation of cases in the State of Assam was not a valid and competent order within. the powers of the Magistrate at Delhi. These orders of investigation are therefore rightly quashed by the High Court.\n\nThe contention on behalf of the appellarrts that the order of the Magistrate allowing the Inspector of Police to investigate was proper and that he applied his mind is not required to be gone into in the present appeals in view of the decision that the Magistrate at Delhi was not competent to authorise the investigation.\n\nIt is also not necessary to express any opinion on the other contention as to whether sanction under section I 96A of the Code of Criminal Procedure was necessary before the courts could take cognizance of the matter.\n\nWe are of opinion that the order of the Magistrate at Delhi is not a valid and proper order and therefore the investigation was bad.\n\nWe need not express any opinion as to whether there should be a fresh investigation. For these reasons, the appeals fail and are dismissed.\n\nG.C.\n\n30-1 S.C. lndia/71 Appeals dismissed.", "total_entities": 91, "entities": [{"text": "60\n\nUNION OF INDIA & ANR", "label": "PETITIONER", "start_char": 2, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ANR", "offset_not_found": false}}, {"text": "B. N. ANANTI PADMANABIAB ETC", "label": "RESPONDENT", "start_char": 29, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "B. N. ANANTI PADMANABIAH ETC", "offset_not_found": false}}, {"text": "B rs. M. SIKRI", "label": "JUDGE", "start_char": 77, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 124, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "A.N. 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15747, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "SA of the Prevention of Corruption Act", "label": "STATUTE", "start_char": 15782, "end_char": 15820, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 12(2)", "label": "PROVISION", "start_char": 15991, "end_char": 16004, "source": "regex", "metadata": {"linked_statute_text": "SA of the Prevention of Corruption Act", "statute": "SA of the Prevention of Corruption Act"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 16781, "end_char": 16807, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]} {"document_id": "1971_1_466_476_EN", "year": 1971, "text": "DWARKA NATH & ANR. v.\n\nMUNICIPAL CORPORATION OF DELHI\n\nApril 23, 1971 B [S. M. Snoo, c. J., c. A. VAJDIALINGAM AND A. N. RAY, JJ.)\n\nThe Prevention of Food Adulteration Act (37 of 1954), s. 23(1) (c), (d), (/)and (g), and Rules made thereunder r. 32(b) and (e}-If within ruJe.making power.\n\nThe appellants were carrying on business in ghee. On the h1bels of the tins of ghee the name of the business premises of the appellants and the postal division were given but the number of premises and the l1Jcality where the premises was situate were not given.\n\nOn the ground that the label did not conform to the packing and labeUing rules as required under r. 32(b) and (e) of the rules made under s. 23(1) of the Prevention of Food Adulteration Act, 1954, the appellants were prosecuted and were convict ed, and a token fine of Re. 1 was imposed on them. The judgment of the High Court emphasised upon the violation of r. 32(e).\n\nRule 32(e) provides that every label should specify the batch .number or code number either in Hindi or English null)ericals or alphabets or in combination, and r. 32(b) requires the name and address 'of the manufacturer or importer or vendor or pl\\cker to be -given on every label. The first proviso to r. 32 excludes the operation of els. (a) to (e) of the said rule in respect of food packages weighing not more than 60 grams.\n\nOn the question whether sub-rr. 32(b) and (e) were within the rule making power under s. 23(1) els. (c), (d), (f), and (g).\n\nHELD: (I) The sub-rules could not have been made under cl. (c).\n\nThat clause deals with provisions for imposing rig9rous control over pro~ duction, distribution and sale of any article or class of articles of food notified by the Central Government in the Official Gazette. But no such notification regarding ghee had been issued by the Central Government.\n\n[4748}\n\n(2) Clause (f) relates to prohibiting the sale or defining' the conditions of sale of any substance injurious to health when used as food. This clause also has no application because ghee is not a substance injurious to health when used as food. [474C]\n\n(3) Clause (g) will have no application because one of the essential requirements therein is that the rules made under it should be related to the interest of public health. Any rule made under this clause must be of universal application because it is in the interest of public health. The requirement regarding compliance with any such rule cannot depend upon the quantity of food packed in any container. Therefore, the fact that food packages not weighing more than 60 grams are excluded under the proviso to the rule is an indication that r. 32 is not framed under s. 23(1)\n\n(Ill of the Act. [4740-F]\n\n(4) The object of a rule framed under s. 23(1) (d) must be with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article. The giving of the\n\nDWARKA NATH I'. MUNIC. CGlU'. \\'Vaitiialingom, J.)\n\nbatch number or code number alone without giving any .further particulars such as the date of manufacture of the article and the period within which the said article has to be used or consumed and the quantity of the article in the container will not prevent the public or a purchaser from being -Oeceived or misled as to the character, quality or quantity of the article.\n\n[4740-H ; 47SAB]\n\nIn the present case there was no obligation to specify on the label the date of packing and manufacture of the article of food or the period within which the article of food has to be U8Cd or consumed.\n\nJn the .absence of any such obligation there is no rational or even a remote\n\nconnection between the batch Or code number artificially given by a packer and the public or purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article contained in a sealed tin. [47SC-EJ\n\nTherefore r. 32(e) is beyond the rule making power even under s. 23\n\n(1) (d} of the Act. Since r. 32(e) is invalid the appellants could not have been convicted for its violation. [475E-F1\n\n(S} But r. 32(b) is within the rule making power under s. 23(1) (dl, because, it is well known that in many cases in business the name and address of a manufacturer or importer or vendor or packer has become\n\nossociated with the character quality or quantity of the article. [4768)\n\nIn the present case, there is a substantial compliance with the rule by 1be appellants, but according to the requirement of the rule, some mo1e particu.Jars will have to be given, namely, the number of the premises and the locality or the area where the premises was situate. There was thus a technical breach of r. 32(b).\n\n[4768-D]\n\n[But since there was no indication from the juda; ments of the lov.--er E courts that the appellant would have been convicted for such a technical breach if there was no charge under r. 32(e) also, the appellants were acquitted.] [476E-F] •\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 264 of 1968.\n\nAppeal by special leave from the judgment and order dated November 7, 1967 of the Delhi High Court in Criminal Revision No. 371-D of 1965.\n\nS. C. Manchanda, M. L. Aggarwal and N. K. Agarwala, for the appellants.\n\nB. P. Maheshwari, for the respondent\n\nV. A. Sayid Muhammad and S. P. Nayar, for the Union of India\n\nThe Judgment of the Court was delivered by\n\nVaidlalingam, J.~The short question that arises for consideration' in this appeal by the accused, by special leave, is whether Rule 32(b) and (e) of the Prevention of Food Adulteration Rules,\n\nSUPREME COURT REPORTS\n\n[1971] SUPP. S.C.R ..\n\n1955 (hereinafter to be referred as the Rules) is ultra vires as being beyond the rule making power under s. 23 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as the Act).\n\nAs the Rules have been framed by the Central Government, notice had been issued by this Court to the Attorney General.\n\nThe first appellant is a partner of the second appellant Mis.\n\nMohan Ghee Laboratories carrying on business in Pure Deshi Ghee, in Gurdwara Road, New Delhi-5.\n\nOn December 29, 1962 at about 12. 50 p. m. five Food Inspectors of the respondent visited the Laboratories of the appellants at Gurdwara Road, and all of them purchased ghee from different containers on payment of price.\n\nAfter going through the necessary formalities as required by the Act and the Rules, the samples of ghee purchased by the Food Inspectors were sent to the Public Analysts for Delhi Municipal Corporation for analysis.\n\nThe Public Analyst tested rhe sample on January 3, 1963 and reported that all the five samples taken by the five Food Inspectors and sent to him conformed to standard.\n\nIt is also to be noted that on December 29, 1962, the Food Inspectors had also seized the labelled tins from which samples of ghee had been taken.\n\nOn August 31, 1963, the respondent filed five complaints in the Court of the Magistrate, !st Class, Delhi against the appellants under Section 7 I 16 of the Act read with Rule 32(b) and (e) of the Rules.\n\nAs all the complaints are on the same pattern, we will just refer to one of those complaints, filed on the basis of the report ohhe Food Inspector Lekh Raj Bhutt.\n\nThe averments are that the said Food Inspector on December 29, 1962 at about 12.55 p. m. took a sample of pure ghee from the appellants from one of the sealed tins of pure ghee exhibited for sale at the sale counter after due observance of the Rules.\n\nOne sealed bottle was given to the appellants at the spot.\n\nThe labelled tin of pure ghee from which the sample was taken was also seized by the Food Inspector in the presence of witnesses and the said tin is produced as an exhibit.\n\nThe complaint further proceeds to state that the sample of pure ghee taken from the appellants conformed to the standard of pure ghee.\n\nAccording to the report of the Public Analysts, the sealed tin of pure ghee from which the sample was taken had a label, but it did not conform to the packing and labelling Rules under the Act inasmuch as the name and business address of the manufacturer or packer or vendor and batch or Code numbers had not been specified on the label as required under Rule 32(b) and\n\n(e) of the Rules; and that the appellants are guilty for non-obscrance of the Labelling Rules.\n\nThe respondent ultimately prayed that the appellants may be punished, according to law, for contr?.· vention of Rule 32(b) and (e) of the Rules.\n\nDWARKA NATH v. MUNIC. CORP. ( Vaidialingam, J.)\n\nSimilarly, the charge framed in each of the five cases was also on the same pattern. The charge after referring to the substance\n\nof the complaint and after referring to the fact that the sample of ghee taken from the shop of the appellants conformed to the standard alleged :\n\n\"But cor.iplete address, Batch or Code No. etc. were not written on the ghee tins seized by the Food Inspectors.\n\nTherefore, you are to show-cause, why you should not be punished under section 7 / 16 PFA Act 1954, read with rule 32(b) and (e) of PFA Rules, 1955.\"\n\nThe appellants pleaded not guilty to the charge.\n\nOne of the Food Inspectors. Dina Nath has given evidence as P. W. !. We will only refer to that part of his evidence which has a bearing on the point for consideration before us.\n\nIn chief examination he has stated that when he examined the tin from which the sample of ghee had been taken, he found that the tin did not bear the batch number, the code number and that rhe address given therein was incomplete. In cross-examination he has stated that the address given on the label was Mohan Ghee Laboratories. New Delhi-5 and there was also a further writing \"Pure Ghee\".\n\nHe was not able to say whether the address referred to above and found on the tin was incomplete.\n\nHe has further stated that though he has been working as Food Inspector from about 1949, he does not remember if re had seen the premises number written on any packing. He has further stated that \"Batch Number can start from any serial number.\n\nI am saying about serial number by commonsense ......... Code No. and Baich number is the same.\"\n\nWe will refer to the question put to the first appellant when he was examined under section 342 and to his answer in respect of the labelling and packing.\n\n\"Q. There is an allegation against you that labelling and packing of the Ghee tins taken in possession, was defective, since they do not bear the complete address of your shop, Code number and Batch number. What have you to say?\n\nA. It is incorrect.\n\nLabelling and packing were in order, address was also correct.. ..... \".\n\nThe appellants had also examined some of their employees. We will refer to the material part of the evidence of D.W. 2. who was incharge of supervising the packing of the ghee. He has referred\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nto the fact that the address of the shop of the appellants is Mohan Ghee Laboratories, New Delhi-5 and that they receive letters, addressed as above.\n\nHe has further stated that the appellants purchase ghee from outsiders in small tins and utensils and then pack them in their premises.\n\nIn cross-examination he has stated that the premises of the appellants is situated in 37 Nai Wallau, Gurdwara Road, Karol Bagh.\n\nThe Trial Magistrate has rather elaborately gone into the question whether the samples of ghee seized from the appellants conform to the standard and criticises without any basis the evid ence of the defence witnesses on the ground that the appellants should not have printed on the label \"Pure Ghee\" when they could not have known the quality of gbee stored in the containers. This discussion is totally irrelevant because, even according to the respondent, the Pub11c Analysts had certified that the samples conformed to the standard and the appellants were not being tried for adulteration of ghee.\n\nRegarding the requirement regarding the Batch number or Code number, the Magistrate after reference to Rule 32(e) holds that the provision is mandatory and the object of giving those particulars is to indicate the serial order in which the particular article of food was packed and thereby to indicate the period for which . it could remain fit for human consumption.\n\nWe are not able to appreciate wherefrom the Magistrate got all these indications, because the relevant Rule does not provide for giving any parti culars regarding the period for which the article of food could remain fit for human consumption.\n\nUltimately the Magistrate found the appellants guilty for contravening Rule 32(b) and (e) and sentenced them to pay a token fine of Re. 1 in each of the five cases.\n\nThe appellants challenged their conviction before the learned Additional Sessions Judge Delhi. The Sessions Judge, by his order dated October 18, 1965 agreed with the Trial Magistrate that the appellants are guilty of breach of Rule 32(b) and (e). However, the Sessions Judge was of the opinion that five separate com plaints and five separate convictions were not legal and therefore; be made a recommendation to the High Court that the conviction of the appellants is to be set aside in respect of four complaints and that it should be maintained only in one case.\n\nAccording to the learned Sessions Judge, the appellants have not complied with the requirement of sub-rule (b) of Rule 32 as they have given on the label the address as \"Mohan Ghee Laboratories, New Delhi-5.\" without giving the number of the premises and the locality where the premises is situate. Simularly, the learned Sessions Judge is of the view that the object of specification of Batch number and Code\n\nDWARKA NATH v. MUNJC. CORP. (Vaidialir.gam. J.)\n\nnumber is to track down all the samples of food stuff that were packed out of a particular lot if the authorities found the sample to be defective.\n\nThis will enable the authorities to at once withdraw from the market all the c0ntainers of a particular Batch number.\n\nIn this view the learned Session Judge held that the appellants have commftted breach of Rule 32(e).\n\nThe learned Chief Justice of the Delhi High Court, in the order under attack, has held that it is enough if the appellants are convicted in one case and accordingly the reference made by the Additional Sessions Judge in this regard was accepted. But on the main question as to whether Rule 32 (b) and (e) was within the rule making power under Section 23 of the Act, the learned Chief Justice has held that the said rule is intra vires and comes within the rule making power conferred under Section 23(1) (d).\n\nAccording to the High Court the Batch number and Code number would serve to provide a re-assuring factor to the purchaser inasmuch as it would indicate to some extent the time when the commodity was manufactured or packed.\n\nThe High Court has further held that the display of Batch number or Code number would seem to be a relevant factor for assuring the public or the purchaser that they are getting from the market an article which is fresh enough to suit their purpose and requirement. Ultimately, the High Court confirmed the conviction of the appellants as well as the levy of fine of Re. 1 in one case for breach of Rule 32(b) and (el.\n\nMr. S. C. Manchanda. learned counsel for the appellants contended that Rule 32 (b) and (e) is beyond the rule making power conferred under Section 23 (1) (d) of the Act.\n\nThe learned counsel further pointed out that the reasons given by the High Court are not warranted by the provisions of either the Act or the Rules.\n\nDr. V. A. Syed Mohammad, appearing for the learned Attorney General, contended that the impugned rule could be sustained under clauses (c), (d) and (g) of Section 23( (]). In particular he supporteQ. in full \\he reasons given by the High Court that the impugned rule is within the ambit of the rule making power under Section 23 (]) (d).\n\nMr. B. P. Maheshwari, learned counsel for the respondent, urged that apart from the clauses referred to on behalf of the\n\nAttorne~-General, the rule could be sustained even under Section 230)(0.\n\nIn order to appreciate the contentions urged before us, it is necessary to refer to the material part of Section 23 as well as the relevant rules.\n\nSection 23()) gives power to the Central Government t<' make rules.\n\nWe have already referred to the clauses\n\n\nA on which reliance is placed on behalf of the Attorney-General and by the respondent, namely, clauses (c), (d) (f) and (g). Section 23 (!) with those clauses reads as follows :\n\n\"230) Power of the Central Government t3 make rules :\n\nThe Central Government may, after consultation with the B Committee and subject to the condition of previous publication, make rulesc\n\n• • • • •\n\n(c) laying down special provisions for imposing rigor ous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles.\n\n(d) restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser bemg deceived or misled as to the character, quality or quantity of the article ;\n\n• • • • •\n\n(f) prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingradient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food ;\n\n(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health.\"\n\nThe Rules have been framed by the Central Government in exercise of the powers conferred by sub-section (2) of Section 4 and sub-section (I) of Section 23 of the Act.\n\nThe Rules framed under sub-section (2) of Section 4 relate to the functions of the Central Food Laboratory and allied matters.\n\nWe are not concerned with those rules.\n\nPart VII of the Rules relates to the \"packing and labelling of foods\".\n\nRule 32 relating to the \"contents of the label\" is in this part. Rule 32 with material clauses\n\nDWARKA NATH •• MUNIC. CORP. (Vaidialingam, J.) 473\n\n(b) and (e) and the first proviso as well as the Explanation reads A as follows :\n\n\"Rule 32 : Contents of the label-Unless otherwise provided in these rules there shall be specified on every label:-\n\n• • • •\n\n(b) the name and business address of the manufacturer or importer or vendor or packer,\n\n• • • •\n\n(e) a batch number or code number either in Hindi or English numericals or alphabets or in combination; Provided that in the case of food package weighing not more than 60 grams particulars including the statement under any clause need not be specified.\n\nExplanation.-The term 'label' means a display of written, printed, perforated, stencilled, embossed or stamped matter upon the container, cover lid and/or crown cork of any food package.\"\n\nAdmittedly there is no definition of the expressions \"Batch number\" or \"Code number\" either in the Act or in the Rules.\n\nNor has any affidavit been filed on behalf of the respondent or by the Attorney General of any expert whether these expressions have any technical meaning in the trade and if so what that is. \"The material available on record is only the evidence of Dina Nath, one of the Food Inspectors, who has given evidence as P. W. 1 in one of the complaints.\n\nWe have already adverted to his evidence which is to the effect that Batch number can start from any serial number and that what he says about serial number is only by commonsense. Further, according to him Code number and Batch number is the same.\n\nFrom this evidence it is clear that there is no specific meaning attached to these two expressions either in the Act or in the Rules and even the Food Inspectors are not very clear as to what those expressions mean.\n\nHe has also stated . that in the label on the container, the address of the appellants had been given as \"Mohan Ghee Laboratories, New Delhi-5\".\n\nAccording to him the said address is incomplete because it does not give the d_etails about the d?or\n\nnumber of the premises, as well as the locahty where the premises is situate. He has also stated that he does not remember to have seen the premises number on any packing.\n\nWe have now to see whether any of the clauses in Section 23 II) on which reliance is placed on behalf of the Attomey-Oeneral :and the respondent will sustain the provisions contained in Clauses\n\n~UPRBMB COURT REPORTS [1971] SUPP. s.c.R.\n\n(t., and (e) of Rule 32. We are not able to find anything in Clauses. (c), (f) and (g) of Section 23(1) of the Act, which will give power to the Central Government to frame rules requiring the name and business address of manufacturer or vendor being given ; or for Batch Number or Code number being given on the labels. Clause\n\n(c) deals, with provisions for imposing rigorous control over pro-· duction, distribution and sale of any article or class of articles. of food notified by the Ce,,•ral Government in the Official Gazette.\n\nNo notification issued by the Central Government in this behalf regarding ghee has been brought to our notice and, therefore, . clause (c) does not apply.\n\nClause (f) relates to prohibiting the sale or defining the condi tions of sale of any substance injurious to health when used as food.\n\nThis clause has also no application, because it is not the case of the respondent that the article of food, with which we are concerned, namely, ghee, is a substance which is injurious to health when used as food.\n\nClause (g) again will have no application because one of the essential requirements, therein is that the rule should be related to the interest of public health. Any rule made under this clause, must be of universal application because it is in the interest of public health.\n\nThe requirement regarding compliance with any such rule, cannot depend upon the q.ilaqity or food packed in any container. That Clause (g) of Section 23(1) will stand eliminated is clearly seen by a reference to the first proviso to Rule 32.\n\nThe said proviso indicates that if the food package weighs not more than 60 grams, the particulars mentioned in clauses (a) to (e) of the Rule need not be specified.\n\nIf a requi'rement has to be in the interest of public health, as is mandatory under Clause (g). the very fact that the first proviso to Rule 32 excludes the operation of clauses (a) to (e) of the said rule in respect of food package weighing not more than 60 grams, is an indication that Rule 32 is not framed under Clause (g) of Section 23(1) of the Act.\n\nFrom the above discussion it is clear that under Clauses (c), (f) and (g) of Section 23(1) of the Act, the rules contained in clauses (b) and (c) of Rule 32, could not be framed.\"\n\nThis leaves us for consideration the quesuon whether Rule 32 (b) and (e) fall within tlie ambit of rule making power under Clause (d) of Section 23(1).\n\nWe will first take up for consideration the v1'res of Clause (e) of Rult: 32.\n\nThere cannot be any controversy that the object of a rule framed under clause\n\n(d) must be with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article.\n\nWe have already pointed out that in this case the label contained the words \"pure ghee\" and on analysis of the sample it has been found to conform to the standard. It is difficult for us to appreciate how the giving of the batch number or\n\nDWARKA NATH v. MUN!C. CORP. (Vaidialingam, J.) 475\n\nthe code number alone without giving any further particulars such as date of manufacture of the article of food and the period within which the said article has to be utilised, used or consumed and the quantity of the article in a container, will prevent the public or the purchaser being deceived or misled as to the character, quality or quantity of the article.\n\nNo attempt has been made by the respondent to establish any relation between the giving of the batch number or the code number with the public or the purchaser being prevented from being deceived or misled in respect of the matters referred to in Clause (d).\n\nWe are not able to find any rational or even a remote connection between the batch or code nuniber artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.\n\nThere is no definition of the expression \"batch number\" or \"code number\" either in the Act or the Rules. It is also admitted that even assuming that the batch or .code number has to be given, there is no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food has to be utilised, used or consumed.\n\nIn the absence of any obligation to give the particuliirs mentioned by us above, the public or the purchaser will not be able to find out even the freshness of the contents of a container.\n\nTherefore, it follows that merely gtving an artificial batch number or code number will not be of any use to the public or to the pu.chaser. . In view of all these circumstances we are of the opinion that rule 32(e) is beyond the rule making power even under Section 23 (1) ·(d) of the Act.\n\nThe appellants could not be convicted for any violation of Clause (e) of Rule 32 as the said provision, as pointed out above, is invalid.\n\nWe will now consider the question regarding the validity of Clause (b) of Rule 32.\n\nThat clause is also challenged as being beyond the rule making power under Section 23 (!) (d) of the Act.\n\nClause (b) of Rule 32 requires that the name and business address of the manufacturer, or importer, or vendor or packer be given on every label.\n\nAccording to Mr. Manchanda, this clause has also no relation to the purpose for which the rules can be framed under Section 23 (!) (d) of the Act. According to Mr. Manchanda, mere giving of name and business address will not give any indication to the public or the purchaser regarding the character, quality or quantity of the article.\n\nEven assuming that Clause (b) of .Rule 32 is valid, he pointed out, that in this case, his clients have complied with the requirement by stating on the label \"Mohan Ghee Laboratories New Delhi-5.\" According to him there has been at any rare substantial compliance with .\n\nSUPRBME COURT REPORTS [1971) SUPP. s.c.R.\n\nthe requirement of the rule and therefore his clients could not be convicted for any violation of this clause.\n\nWe are not inclined to accept the contention of Mr. Manchanda that Clause (b) of Rule 32 is beyond the rule making power of the Central Government under Section 23 (!) (d) of the Act. It is we11 known that in many cases in business the name and address of a manufacturer, or importer, or vendor or packer has become associated with the character, quality or quantity of the article and as such we are of the opinion that Clause (bJ of Rule 32 is a valid rule.\n\nIn this case, as pointed out by Mr. Manchanda there has been a substant.ial compliance with that rule by the appellants giving in the label the address as \"Mohan Ghee Laboratories, New Delhi-5.\" But according to the requirement of the rule, some more particulars will have to be given. namely, the number of the premises and the locality or the area where the premises is situate.\n\nThis is the evidence adduced on behalf of the prosecution also.\n\nTherefore, it can be said that there is a technical breach of Clause (b) of Rule 32 inasmuch as full particulars, referred to above, have not been given by the appellants in the label.\n\nNo doubt, the appellants have been convicted for breach of Clauses ib) and ie) of Rule 32 and a fine of Re. l has been imposed.\n\nWe have already held that Clause (e) of Rule 32 is invalid and the appellants cannot be convicted for non-compliance of the same.\n\nThough there is a technical breach of Rule 32(b), there is no indication available from the judgments of the High Court and the subordinate courts that the appellants would have been convicted , for a technical breach of Rule 32(b) if there was no charge under Clause (e) of Rule 32 also. On the other hand, more prominence is given in the judgments to the violation of Rule 32 (e) and the inference is that the conviction is substantially for a violation of the said rule.\n\nIn the circumstances of this case, we are of the view. that the appellants could not be convicted for a technical breach of Rule 32(b) alone.\n\nTherefore, the conviction of the appelbnts for offences, under Rule 32ibl and (e) as well as the fine imposed in the sum of Re. I for the said offence, are both set aside.\n\nIn the result, the appeal is accordingly allowed and the judgment and order of the Delhi High Court in Criminal Revision No. 371-D of !965 are set aside. The fine. if collected, will be refunded.\n\n'V.P.S.\n\nAppeal allowed.", "total_entities": 46, "entities": [{"text": "DWARKA NATH & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "DWARKA NATH & ANR", "offset_not_found": false}}, {"text": "MUNICIPAL CORPORATION OF DELHI", "label": "RESPONDENT", "start_char": 23, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL CORPORATION OF DELHI", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 115, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "A.N. 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"end_char": 15822, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 230", "label": "PROVISION", "start_char": 16012, "end_char": 16023, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 16134, "end_char": 16144, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23()", "label": "PROVISION", "start_char": 16177, "end_char": 16189, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 16413, "end_char": 16423, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 17995, "end_char": 18004, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 18028, "end_char": 18038, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 18094, "end_char": 18103, "source": "regex", "metadata": {"statute": null}}, {"text": "Part VII of the Rules", "label": "STATUTE", "start_char": 18220, "end_char": 18241, "source": "regex", "metadata": {}}, {"text": "Section 23", "label": "PROVISION", "start_char": 20598, "end_char": 20608, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(1)", "label": "PROVISION", "start_char": 20877, "end_char": 20890, "source": "regex", "metadata": {"statute": null}}, {"text": "Batch Number or Code", "label": "STATUTE", "start_char": 21053, "end_char": 21073, "source": "regex", "metadata": {}}, {"text": "Section 23(1)", "label": "PROVISION", "start_char": 22248, "end_char": 22261, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(1)", "label": "PROVISION", "start_char": 22846, "end_char": 22859, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(1)", "label": "PROVISION", "start_char": 22950, "end_char": 22963, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(1)", "label": "PROVISION", "start_char": 23191, "end_char": 23204, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 25566, "end_char": 25576, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 25897, "end_char": 25907, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 26191, "end_char": 26201, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 26993, "end_char": 27003, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_46_52_EN", "year": 1971, "text": "-4i\n\nU.N.R.RAO\n\nSMT. INDIRA GANDW\n\nMarch 17, 1971\n\n[S. M. SIK.RI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER\n\nAND P. JAGANMOHAN REDDY, JJ.]\n\nConstitution of India, 1950, Arts. 74(1) and 75(3)-House t People dissolved-If Prime Minister ceases to hold office.\n\nThe House of the People was dissolved by the President of lndia on 27th December 1970.\n\nOn the question whether the respondent, whe was the Prime Minister before the dissolution, ceased to bold office thereafter,\n\nHELD : There is nothing in the Constitution and in particular in Art. 75(3) hich renders the respondent functioning as Prime Minister contrary to the Constitution.\n\nThe Indian Constitution establishes a Parliamentary system of Government with a Cabinet. and not a Presidential form. Article 75(3) brings into existence responsible Government, that is, the Council of Ministers must enjoy the confidence of the House of the People.\n\nIn the context, it can only mean that Art. 75(3) applies when the House of the People does not stand dissolved or prorogued, for. when it is dissolved, the Council of Ministers cannot naturally enjoy the confidence of the Ho.use. Rut such dissolution of the House does not require that the Prime Minister and other ministers must resign, or cease to hold office or must be dismiised by the President, because, Art. 74(1) is mandatory and the President can not exercise his executive power withoQt the aid and advice of the Council of Ministers, with the Prime Minister at the head.\n\n[51 B-C, D-H]\n\nThis view is also in accordance with the conventions folloved not only in the United Kingdom but in the countries following a similar system of responsible government. [52 D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 196 of 1971.\n\nAppeal from the judgment and order dated January 21and February 5, 1971 of the Madras High Court in Writ Petition No. 63 of 1971.\n\nThe appellant appeared in person.\n\nG N iren De, Attorney-General, R. H. Dhebar, Ram Panjwal'i,\n\nJ. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondent.\n\nNiren De, Attorney General, Ram Panjwani, R. H. Dhebar and S P. Nayar, for the Union of India.\n\nORDER\n\nThe appeal is dismissed.\n\nNo order as to costs.\n\nWe will give our reasons later.\n\nThe Judgment of the Court was delivered by\n\nSikri, c. J.-This appeal by certificate is directed against the judgment of the High Court of Judicature at Ma-Oras dismissing Writ Petition No. 63 of 1971 filed by U. N. R. Rao. appellant before us. In this petition the appellant had prayed that a writ of qua warranto be issued to the respondent, Smt. Indira Gandhi, and it be declared that the respondent has no constitutional autho. rity to hold the office of and to function as Prime Minister of India.\n\nIn brief, the appellant contends that under the Constitution as soon as the House of the People is dissolved under art. 85(2) of the Constitution the Council of Ministers, i.e., the Prime Minister and other Ministers, cease to hold. office. According to him this follows plainly from the wording of art. 75(3), which pro.\n\nvidcs that \"the Council of Ministers shall be collectively respon sible to the House of the People\".\n\nHow can the Council of Ministers be responsible to the House of the People when it has been dissolved under art. 85(2) ?\n\nAccording to him no void in the carrying out of Government will be created because the President can exercise the Executive Power of the Union either directly or through officers subordinate in accordance with the Constitution as provided in a1t. 53(1) of the Constitution.\n\nIn constitutional matters it is advisable to decide only those points which necessarily arise for determination on the facts of the case.\n\nIt seems to us that a very narrow point arises on the facts of the present case. The House of the People was dissolved by the President on 27-12-1970.\n\nThe respondent was the Prime Mir.ister before the dissolution.\n\nIs there anything in the Constitution, and in particular in art. 75(3), which renders her carrying on as Prime Minister contrary to the Constitution ? It was said that we must interpret Art. 75(3) according to its own terms regardless of the conventions that prevail in the United Kingdom.\n\nIf the words of an article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must\n\nbe remembered that we are interpreting a Constitution imd not an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with a Cabinet.\n\nIn trying to understand one may well keep in mind the conventions prevaler.t at the time the Constitution was framed.\n\nSpeaking for the Court (Mukherjea, C. J.) observed in Ram Jawaya Kapur v. State of Punjab(').\n\n\"The limits within which the executive Government can function under the Indian Constituton can be ascertained without much difficulty by reference to the form\n\n(I) [!9SSJ 2 S. C.R. 225, 236-37.\n\nSUPRIME COURT REPOl!.18 (1971] SUPP. s.c.R.\n\nof the executive which our Constitution has 11et up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution.\n\nThis evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.\n\nIn India, as in England, the executive has to act subject to the control of the legislature; but in what wav is this control exercisable by the legislature ? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President 'but under article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made 31 formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the\n\nState but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consistinJg, as it does, of the members of the legislature is, like the British Cabinet, \"a hyphen which joins, a buckle which fastens the legislative part of the State to the executive pMt\". The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.\"\n\nIn A. Sanjeevi Naidu v.\n\nState of Madras (') ii H was urged on behalf of the appellants in case that, \"the Parliament has conferred power under Section 68(C) of the ted authority. The power can be exercised only by that authority and by no one else. The authority concerned in the present case is the State Government.\n\nThe Government could not have delegated its statutory functions to any one else. The Government means the Governor aided and advised by his Ministers. Therefore the required opinion should have been formed by the Minister to whom the business had been allocated by 'the Rules'. It W36 further urged that if the functions of the Government can be discharged by any one else then 1he doctrine of ministerial responsibility, which is the very essence of the cabinet form of Government disappears; such a situation is impermissible under our Constitution.\"\n\nSpeaking on behalf of the Court, Hegde J., repelled the contentions in the following words :\n\n\"We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution. Under our Constitution, the Governor is essentially a constitutional head, the administration of State is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with eacli and every matter that comes before the Government. In order to obviate that difficulty the Constitution has authorized the Governor under subarticle 3 of Article 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the M\"misters\n\non the advice of the Chief Minister. Apart from allocating business ampng the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business.\n\nHe can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the advice of the Council of Ministers.\n\nThe Cabinet is responsible to the legislature for every action taken in any of the Ministries. That is the essence of joint responsibility.\"\n\nLet us now look at the relevant articles of the Con-\n\nJI;\n\nstitution in the context of which we must interpret art.\n\nH 75(3) of the Constitution. Chapter I of Part V of the\n\n\"-1 SC India/71\n\nSUPR'EldE COURT REPOR1S (1971] .mPP. S.C.ll\n\nConstitution deal~ with the Executive. Article 52 provides that there shall be a President of India and Art. 53(1) vests the executive power of the Union in the President and provides that it shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. The last five words are important inasmuch as they control the Presidei; it's action under Article 53()).\n\nAny exercise of the executive power not in accordance with the Constitution will be liable to be set aside. There is no doubt that the President of India is a person who has to be elected in accordance with the relevant provisions of the Constitution but even so he is bound by the provisions of ihe Constitution. Article 60 prescribes the oath or affirmation which the President has to take. It reads :\n\n\"I, A. B., do swear in the name of God/solemnlv affirm that I will faithfullv execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people o! India\".\n\nArticles 74 and 75 deals with the Council of Ministers. They read thus :\n\n\"74. (I) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.\n\n(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.\n\n75. (I) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.\n\n(2) The Ministers shall hold office during the pleasure of the President.\n\n(3) The Council of Ministers shall be collectively responsible to the House of the People.\n\n(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third schedule.\n\n(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to lie a Minister.\n\n(7) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament to determines, shall be as specified in the Second Schedule\".\n\nIt will be noticed that article 74(1) is mandatory in form.\n\nWe are unable to agree with the appellant that in the context the word \"shall\" should be read as \"may\".\n\nArticle 52 is mandatory.\n\nJn other words 'there shall be a President of India'. So is article 74 (!).\n\nThe Constituent Assembly did not choose the Presidential system of Government.\n\nIf we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive.\n\nIt would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise\n\nof his functions.\n\nAs there would be no 'Councii of Ministers' nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the countrv at least till he is impeached under Article 61.\n\nIt seems to us that we must read the word \"shall\" as meaning \"shall' and not \"may\". If Article 74(1) is read in this manner the rest of the provisions dealing with the Executive must be read in harmony with.\n\nIndeed they fall into place.\n\nUnder Article 75(!) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under art.\n\n75(2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office.\n\nNow comes the crucial clause three of Article 75.\n\nThe appellant urges that the House of People having been dissolved this clause cannot be complied with.\n\nAccording to him it follows from the provisions. of this clause that it was. contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services.\n\nAs we have shown above, Article 74(1) is mandatory and. therefore. the President cannot nerciRe the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(!) and Article 75(2).\n\nArticle 75(3) brings into existence what is usually called \"Responsible Government\".\n\nIp other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Article 85(2)(b), Article 75(3) has full operation. But when °it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People.\n\nNobody has said that the Council of Ministers does not enjoy the confidence of\n\nSUPREME COURT REPORTS\n\n[1971] SUPP. S.C.R..\n\nthe House of Peaple when it is prorogued.\n\nIn the context, therefore, this clause must be read as meaning that Article 75(3) only applies when the House of People does not stand dissolved or prorogued.\n\nWe are not coll(:emed with the case where dissolution of the House of People takes place under Article 83(2) on the expiration of the period of five years prescribed therein, for Par liament has provided for that contingency in S. 14 of the Repr<- sentation of Peoples Act, 1951.\n\nOn our interpretation other articles of the Constitution ab<> have full play; e.g. Article 77(3) which contemplates allocation of business among Ministers, and Article 78 which prescribes certafa duties of Prime Minister.\n\nWe are grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly.\n\nWe need 11ot burden this judgment with them.\n\nBut on the whole we receive assurance from the learned authors and .the speeches that the view wr have taken is the right one, and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.\n\nIn the result the appeal fails and is dismisst:d, but there will be no order as to costs in this Court.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 50, "entities": [{"text": "4i\n\nU.N.R.RAO", "label": "PETITIONER", "start_char": 1, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "U. 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15393, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "S. 14", "label": "PROVISION", "start_char": 15513, "end_char": 15518, "source": "regex", "metadata": {"statute": null}}, {"text": "Peoples Act, 1951", "label": "STATUTE", "start_char": 15546, "end_char": 15563, "source": "regex", "metadata": {}}, {"text": "Article 77(3)", "label": "PROVISION", "start_char": 15649, "end_char": 15662, "source": "regex", "metadata": {"linked_statute_text": "Peoples Act, 1951", "statute": "Peoples Act, 1951"}}, {"text": "Article 78", "label": "PROVISION", "start_char": 15726, "end_char": 15736, "source": "regex", "metadata": {"linked_statute_text": "Peoples Act, 1951", "statute": "Peoples Act, 1951"}}]} {"document_id": "1971_1_477_493_EN", "year": 1971, "text": "B. C. DAS ETC. v.\n\nSTATE OF ASSAM & ORS.\n\nApril 23, 1971.\n\n[J. M. SHELAT, I. 0 DUA AND V. BliARGAVA, JJ.]\n\nConstitution of India, Arts. 311(2) (c) and 320 (3) (2}--Governor passing order of dismissal-Order reciting Governor's satisfaction that it was not expedient to give opportunity to show cause against action proposP.d -Recital must be held to imply that Governor was also satisfied that il was not expedient to hold inquiry-Article 311(2) as amended in 1963 only clarifies what was judicially held to be implied in original article-Consu~ ltation with Public Service Commission by Governor before passing order of dismissal not necessary-Chief Secretary's authentication of Governor's order does not show that Governor was influenCed by Chief Secretary- Mala tides not estaOlished.\n\nThe appellants were dismissed from the service of the Government of Assam by two separate orders passed by the Governor on April 1, 1965.\n\nThe orders recited that the appellants were unfit to be retained in the public service, that they ought to be dismissed from service and that. the Governor was satisfied in terms of Art. 311(2) (c) of the Constitution that it was not expedient to give them opportunity to show cause against the action proposed to be taken in regard to them as stated above. The appellants challenged the orders of dismissal in writ petitions under Art. 226 of the Constitution which were dismissed by the High Court. In appeals by certificate the contentions of the appellants were: (i) that the impugned orders were not in compliance with the terms of Art. 311 (2) as amended by the Constitution Fifteenth Amendment Act which had come into force on October 6, 1963; (ii) that the orders were bad because they were passed without consulting the Public Service Commission ; (iii) that the orders were passed mala fide at.the instance of the Chief Secretary and the Finance Minister who were annoyed with the appellants.\n\nHELD: (i) Per Shelat and Dua, JJ. According to the decisions of this F Court the expression \"reasonable opportunity of showing cause against the action proposed to be taken\" in the unamended Art. 311(2) included an opportunity to show cause against the guilt of the government servant concerned. This opportunity to show cause against the guilt seems to correspond to the reasonable opportunity of being beard in respect of the charges in the course of the inquiry contemplated by the amended subarticle. The amendment in 1963 was made principally to put in clearer language the result of the judicial decisions construing s. 240(3) of the G Government of India Act, 1935 and unamended Art. 311(2~ of the Constitution. It could not be doubted that the Governor in the present case was fully alive to the interest of the security of the State when he expressed his satisfaction about the inexpediency of giving an opportunity to the appellants to show cause against their guilt as contemplated by cl. (2) of Art. 311 and intended that this clause shall not apply to their cases.\n\nMerely because the form of the order was expressed in the language used in the unamended Art. 311 (2) it did not detract from its effectivelli!ss as H operating to exclude the applicability of the amended .cl. (2) of Art. 311 as a whole. The use of the words in conformity with the unamended article served to convey the same intention as was contemplated by tho\n\namended article and the difference in the language which seemed to be iu consequential did not have the effect of nullifying the impugned orders.\n\nThe words 'as gated above' in the orders did not have the effect of restricting the ambit of the show cause notice to the question of penalty which may be imposed after the inquity into the unfitness of the appellants to be retained in the public service. [482C-H ; 483E-G]\n\nKhem Chand v._ Union of lildia & Ors. [1958] S.C.R. 1 Secretary of State for India v. J.M. Lall, [1945] F.C.R. 10 and High Commissioner for India v. J.M. Lall, LR. (1948) 75 I.A. 225, referred to.\n\nPer Bhargava, J. (dissenting) The '\"action proposed as stated aoove'' in the impugned orders clearly was the order in1posing the penalty of dis~\n\nmissal from service. ln the order itself preceding the recording of the satisfaction there was no other action proposed, except the action of dismissal from service. The satisf:.:i.ctian recorded by the Governor, therefor~. related to the third step to be taken under cl. (Z) of Art. 311 of the Constitution.\n\nThe Governor confirmed his satisfaction to the inexpediency of giving opportunity to the appellants to show cause against the penalty proposed.\n\nNo satisfaction \\\\as recarded that it \\\\'as inexpedient to hold the inquiry required by cl. (2) of Art. 3 ! l as 2.mended.\n\nUnder sub-cl. (c) of the proviso, what was needed was a satisfaction thilt it \\\\:as inexpedient to hold the inquiry.\n\nNo such satisfaction having been recorded il was necessary that the provisions of the principal cl. (1) of Art. 311 should have been complied \\Vith before passing an order of disn1issal. The order of dismissal was therefore void and liable to be struck down. [489C-E]\n\nCase-law referred to.\n\n(ii) Consultation with the Public Service Commission is not compulsory under r. 10 of the Assam Services Discipline and Appeal Rules, 1964 and regulation 6 of the Assam Public Service Commission (Limitation of Functions) Regulations 1951.\n\nThe consultation with the Commission is not prescribed either by the Rules or by the Regulations. The consultation is only under Art. 320 (3) (c) of the Constitution.\n\nSo far as that consultation is concerned this Court has held that it is not mandatory. Nonconsultation with the Public Service Commission could not therefore be held to vitiate the orders impugned.\n\n[492C-493D] State of U.P. v. Ma11bodha11 Lal Srivastava, [1958] S.C.R. 533 and State of Bombay v. D. A. Korgao11kar, C.A. No. 289/1968 dt. 6-5-1960, relied on.\n\n(iii) There was no charge that the Governor had any extraneous reasons for passing the Qfrlers of dismissal. There was nothing on record to sho\\\\· that either the Chief Secretary or the Finance Minister took any part\n\nin the proceediugs wntcll led to the orders of dismissal, or that they ad vised the Governor. The orders \\vere no doubt authenticated by the Chief Secretary in the name of the Governor, but that did not mean that the Governor was in any way influenced by any advice tendered to him by the Chief Secretary. In the circumstances. the plea of mala fide must be rejected. [493E-F] The appeals had accordingly to be dismissed:\n\nOVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1644 and 1645 of 1967.\n\nAppeals from the judgment and order dated Julv 26, i 967 <;>f the Assam and Nagaland High C\\, urt in Civil Rule Nos. 192 and 208 of 1966.\n\nB. c. DAS v. ASSAM (Dua, J.) 479\n\nDebabrata Mukherjee, D. N. Mukherjee and S. K. Nandy, A for the appellants (in lioth the appeals).\n\nM. C. Chagla and iNi:lunit Lal, for the respondents (in both the appeals).\n\nThe Judgment of J. M. SHELAT and I, D. DUA, J.J. was delivered by DUA, J. V. BHARGAVA, J., gave a dissenting Opinion.\n\nDua, J .-We have read the judgment prep8'red by our learned brother Bhargava, We are in complete agreement with him so far as decision on points Nos. (2) & (3) is concerned, but with respect we a-re unable to agree with him on point No. (!).\n\nIt is unnecessary to repeat the relevant facts which have been set out by our learned brother in his judgment. The impugned order dated April l, 1965, in the case of appellant P. K. Hore may however, be again reproduced :\n\n\"The Governor is satisfied that Shri P. K. Hore, Superintendent, P.W.D.F.C. & I Wing against whom more charges have been received is unfit to be retained in the public service and that he ought to be dismissed from service.\n\nThe Governor is further sMisfied under sub-clause kl of the proviso to clause (2) of Article 311 of the Constitution that in the interest of the security of the State, it is not expedient to give the said Shri P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above.\n\nAccordingly, the Governor hereby dismisses the said P. K. Hore, from service with immediate effect.\"\n\nOn the same day an identical order was made with respect to the dismissal of the appellant B. C. Das except thait in the order against him there is no mention of more charges having been received against him.\n\nIt appears that when the Governor made these two orders his attention was not invited to the amended Art. 311(2) which was in force on that date. The impugned orders were accordingly made in terms of Art. 311 (2) as it existed before its amendment by the Fifteenth Amendment Act, 1963, which had come into force on October 6. 1963.\n\nThe amended Art. 3ll(2) has been reproduced in the judgment of my learned brother, it is, l.owcver, desirable to reproduce both the amended and unamended article\n\n480 SUPRBMll COURT REPORTS\n\n(1971] SUPP.S.C.R\n\nA 311(2) so as to understand if any substantial or material change in the legal position was intended by the amendment :\n\nUnamended Prior to 6 10-63\n\n(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of .'showing cause against the action proposed to be taken in regard to him :\n\nProvided that this clause shall not apply-\n\n{a) Where a person is dismissed or removed or reduceJ in rank on the ground of conduct which has led to his conviction on a criminal charge; or\n\n(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or\n\n(c) where the President or Go\n\nvernor, as the ; case may be, is satisfied that in the interest of the security of the State it is not expedient to give that person such an opportunity.\n\nAmended After 6 10-63\n\n(2) No such person as aforesaid shall be dismis!:ed or removed or reduced in rank except after an inquiry in which he has been infor med of the charges against him and given a reaonable opportunity of being heard in respect of those char ges and where it is proposed, after such inquiry, to impose on him an.Y such penalty, until he has been given a repsonable opportunity of making representation on the penal ty proposed, but only on the ba'iis of the evidence adduced during such inquiry.\n\nProvided that this clause shall not apply-\n\n(a) where a person is dismissed or removed or reduced in rank on the ground of con duct which has led to his conviction on a criminal charge; or\n\n(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recordod by that authority in Writing, it is not reasonably practicable to hold such inquiry : or\n\n(c) where the President or uovernor. as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such\n\ninqUiry.\n\nThe unamended sub-article except the proviso was a reproduction of s. 240(3) of the Government of India Act, 1935. The proviso to s. 240(3) had only two clauses corresponding to els. (a) & (b) of the unamended Art. 311(2). A bench of five Judges of this Court in Khem Chand v. The Union of India and Others (')\n\n(0 (19ss1 s.c.R. 1oso.\n\nB. C:. DAS r. ASSAM (Dua, J.)\n\nspeaking through Das, C. J., after referring to the divergent views expressed by Spens, C. J. of the Federal Court for himself and Zafarulla Khan, J., on the one hand, and by Varadachariar, J., on the other in Secretary of State for India v. I. M. Lal/(') and to the decision of the Privy Council on appeal in High Commissioner for India v. /. M. Lall(') explained the Privy Council decision and clarified the meaning scope and ambit of the unamended Art. 311(2) in these words:\n\n\"In our Judgment neither of the two views can be a<:cepted as a completely correct exposition of the intendment of the provisions of s. 240(3) of the Government of India Act, 1935, now embodied in Art. 311(2) of the Constitution.\n\nIndeed the learned Solicitor-General does not contend that this provision is confined to guaranteeing to the government servant an opportunity to be given to him only at the later stage of showing cause against the punishment proposed to be imposed on him.\n\nWe think that the lea.rned Solicitor-General is entirely right in not pressing for such a limited construction of the provisions under consideration. It is true that the provision does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned. All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taAcen in regard to him. He must not only be given an opportunity but\n\nsuch opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded a.s a resonable one, it is quite obviously necessary that the government servant should have the opportumty, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at a.JI and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment.\"\n\nAccording to this decision the expression \"reasonable opportunity of showing cause against the action proposed to be taken\" included an opportunity to show cause against the guilt of the government servant concerned. This opportunity to show cause against the guilt seems to correspond to the reasonable opportunity of being hea.rd in respect of the charges in the course of the\n\n(I) [194S) F.C.R. 103.\n\n31-1 SC Indiaf71\n\n(2) L.R. [1948 75 I.A. 22S.\n\nSUPRBME COUl'hat was required to be done was that a reMonable opportunity of showing cause against the action proposed to be taken in regard to him had to be given to the government servant, and, under the proviso, the Governor's S&tisfaction required was that in the interest of the security of the' State it was not expedient to give that person iuch an opportunity.\n\nThe satisfaction under the unamended provision, therefore, that the Governor had to arrive at wa-s that it was not expedient to give the government servant an opportunity of showing cause against the action proposed to be taken in regard to him.\n\nThis is the language u&ed in the order impugned. The words used in the Article, before the amendment, were interpreted by this Court in Khem Chand v. The Union of India and Others.(') Summarising the position, the Court held :-\n\n\"The resonable opportunity envisaged by the provision under consideration includes-\n\n(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are bMed;\n\n(b) an opportunity to defend himself by cross-examining the wi\\nesses produced against him and by examining himself or any other witnesses in support of his defence; and fi'lally\n\n(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the-enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.\"\n\nThis interpretation was reiterated by the Court in Hukum Chand\n\nMalhotra v. Union of India.(') It was urged by. Mr. Chagla that, in interpreting the order of the Governor dated !st April, 1965, it should be held that, in stating that it is not expedient\n\n(I)[ 1958) S. C. R. I 080.\n\n(2) [1959] Suypl. S. C.R. 892.\n\n4.90\n\nto give P. K. Hore an opportunity to show cause against the action proposed to be ta.ken in regard to him, he must have used these words in the sense in which they were used in the Constitution prior to its amendment and in the light of the interpretation placed on those words by this Court in the -two decisions cited above.\n\nFor two reasons, this submission made by Mr. Chagla appears to be unacceptable. The first reason is that it is too much to hold that the Governor, while passing an order under the amended Art. 311 (2), would be consciously thinking of and basing his order on the language which was used earlier in the unamended .Article and on the interpretation placed on that unamended article by this Court. In fact, in the counter-affida.vit filed on behalf of the State, the assertion made by the Chief Secretary again is \"that the Governor of Assam wa.s satisfied on the basis of materials before him that in the interest of security of the State, it was not expedient to give the petitioner to show cause agafost the order of dismissal.\" He, thus, reiterates that the Governor's satisfaction was confined to the inexpediency of permitting the petitioner to show cause against the proposed order of dismissal which was the proposed penalty. This statement in the affidavit gains importa!Ilce when reference is made to a subsequent paragraph in it in which the Chief Secretary puts forward his submissions. It is in the submissions that the Chief Secretary says that the Governor was satisfied tha.t it was not expedient to hold the inquiry. If, in fact, the Governor was so satisfied, there is no reason why the Chief Secretary should not have stated it on oath in the earlier paragraph, instead of merely making a submission of his in a subsequent paragraph.\n\nThe second reason is that in the order, when recording his satisfaction, the Governor has stated that it is not expedient to give P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above. The last three words \"as stated above\" have greM significance. As has been mentioned earlier, the only action proposed to be taken, which was stated earlier in that order, was the action of dismissal from service. Obviously, therefore, the langua.ge used can bear no other interpretation except that the Governor, in recording the satisfaction, confined it to the inexpediency of giving an opportunity to P. K. Hore to show cause against dismissal from service which would be an opportunity to show cause against the penalty proposed only. No satisfaction was recorded with regard' to the inexpediency of holding an inquiry.\n\nIt was argued that this interpretation, which is being placed on the order of the Governor, is too strict and technical, and it should be h.eld that, in fact, the Governor intended to recoro his satisfaction on the question of inexpediency of holding theinquiry as required by the amended Art. 311(2). It has to be:\n\n\nremembered that the satisfaction of the Governor under sub clause (c) of the proviso has the effect of depriving a government servant of a very valuable right of having an opportunity to prove his innocence 116 well as opportunity to make a representa tion against the penalty proposed to be inflicted on him.\n\nThe effect of such satisfaction is that the government servant is dis missed without even being told of the charges against him. When such serious consequences follow, it is necessary that the precondition laid down by sub-<:lause (c) of the proviso to Art. 311\n\n(2) is strictly satisfied so as to justify deprivation of the valuable right of the government servant mentioned above. I do not think, therefore, that it would be enough merely to infer the intention of the Governor and, thereupon, take a.way the right.\n\nThere ha0ving been no proper compliance with the requirements of sub clause (c) of the proviso to Art. 311(2), the order of dismissal passed against P. K. Hore is void and must be struck down.\n\nIt may be mentioned that the same High Court in a later case of Zatia v. The State of Assam and Others(') has arrived at the same decis'ion, though on a different reasoning which does not appear to be sound. This decision applies equally to the case of B. C. Da~. as, in his case also, the order passed by the Governor for his dismissal is exactly similar and was made in exactly similar circumstances as in the case of P. K. Hore.\n\nIn view of the decision on the first point raised in these appeals, it is not necessary to dea.l with the other two points.\n\nHowever, since they were argued in detail by both parties, I may indicate that, in my opinion, there is no force in either of them.\n\nSo far as non-<:ompliance with rule 10 of the Rules and regulation 6 of the Regulations is concerned, I arn unable te accept the submission put forward by counsel for the appellanis that the rule or the regulation lays down any requirement that the Public Service Commission must be consulted before a government servant is dismissed. Rule 10 is as follows :-\n\n\"Sptciai procedure in certain cases.-Notwithstanding anything contained in Rule 9-\n\n(i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminaJ charge; or\n\n(ii) were •he Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reason ably practicable to follow the procedure prescribed in the said rule; or\n\n(I) [1969) Vol. I Pt. VI Assam Law Reports 192.\n\n(iii) where the Governor is sa.tisfied that in the interest of the security of the State, it is not expedient to follow such procedure.- the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit : Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.\"\n\nThe main part of this rule only enumerates cases where orders can be passed without consulting the Public Service Commission.\n\nIt is only the proviso that mentions consultation; but it does not make it compulsory for the Commission to be consulted.\n\nAll it says is that the Commission shall be consulted in any case in which such consultation is necessa, ry.\n\nThis clea!'ly envisages that the necessity for consultation must be found in some other provision.\n\nThis rule itself does not lay down that in all cases, other than those mentioned in the principal clause or in rule 9, consultation with the Public Service Commission is made mandatory. Similarly, regulation 6 only enumerates cases where it is not necessary to consult the Commissioa. It is true that consultation with the Commission, in cases where the Governor himself passes an original order imposing the penalty of dismissal on a government servant, is not dispensed with. This regulation has obviously been made by the Governor in exercise of his power under the proviso to Art. 320(3) of the Constitution.\n\nIt is the principal clause of Art. 320(3) which lays down when the Public Service Commission shall be consul\n\nted.\n\nSub.clause (c) of clause (3) of Art. 320 is the relevant provision under which consultation with the Public Service Commission is required on all disciplinary ma.tiers affecting a person serving under the Government of a State.\n\nThe regula tions, as indicated above, do not dispense with this requirement of Art. 320(3)(c) in cases where the Governor is himielf the original dismissing authority. The argument of learned counsel that regulation 6 itself la.ys down by implication that there must be consultation with the Public Service Commission in such cases cannot, therefore, be accepted.\n\nRegulation 6 not having exempted consultation with the Public Service Commission in such cases, all that can be held is that the consultation required by Art. 320(3)(c) continues to be in force and applicable. Counsel also drew attention to illustration (4) in regulation 6 which is as follows :-\n\n\"It is proposed to dismiss a State Service Officer or to reduce his pension. The Commission must be consulted before an order is passed by the Governor.\"\n\nThis illustration again merely indicates the correct legal position that the Commission must be consulted as required by Art. 320(3)(c). The illustration by itself cannot be read as a statutory rule laying down that there must be consultation with the Commission. The illustration is to the main provisions of regulation 6 which only Jay down cases in which consultaAion with the Commission is dispensed with and this illustration has been put down as one of the examples where the consultation has not been dispensed with.\n\nThe consultation, therefore, with the Commission is not prescribed either by the Rules or by the Regulations.\n\nThe consultation is only under Art. 320(3)(c) of the Constitution. So far as that consultation is concerned, this Court has already held that it is not mandatory and that this Article does not confer any rights on a public servant, so that the absence of consullailion or any irregularity in consultation does not afford him a cause of action in a court of law, vide State of U. P. v. Manbodhan Lal Srivastava.(') That decision was further affinned in the State of Bombay v. D. A. Korgaonkar.(~ Non-consultation with the Public Service Commission cannot, therefore, be held to vitiate the orders impugned.\n\nThe third ground of ma/a {ides has, on the face of it, no force at all, because it is based on allegations that the Chief Secreta.ry and the Finance Minister were annoyed with the appellants. But there was no charge that the Governor had any extraneous reasons for passing the orders of dismissal.\n\nThere is nothing on the record also to show that either the Chief Secretary or the Fin&nce Minister took any part in the proceedings which led to the orders of dismissal, or that they advised the Governor. The orders are, no doubt, authenticated by the Chief Secretary in the name of the Governor; but that does not mean that the Governor was in any way influenced by any advice tendered to him by the Chief Secretary. In the circumstances, the plea of mala fide must also be rejected.\n\nAs a result, the appea.ls are allowed with cost and the orders of dismissal in both the cases are quashed as having been passed in violation of Art. 311 (2) of the Constitution.\n\nORDER\n\nIn accordance with the majority judgment, the appea.ls fail and are dismissed but in the circumstances of the case without costs.\n\nG.C.\n\n(1) [1958] S. C. R. 533.\n\n(2) Civil Appeal No. 289 of 1958 decided on 6th May, 1960.", "total_entities": 77, "entities": [{"text": "B. C. DAS ETC", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "B. C. DAS ETC", "offset_not_found": false}}, {"text": "STATE OF ASSAM & ORS", "label": "RESPONDENT", "start_char": 19, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "STATE OF ASSAM & ORS", "offset_not_found": false}}, {"text": "M. 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"regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 320", "label": "PROVISION", "start_char": 42145, "end_char": 42153, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 320(3)(c)", "label": "PROVISION", "start_char": 42421, "end_char": 42435, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 320(3)(c)", "label": "PROVISION", "start_char": 42861, "end_char": 42875, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 320(3)(c)", "label": "PROVISION", "start_char": 43281, "end_char": 43295, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 320(3)(c)", "label": "PROVISION", "start_char": 43827, "end_char": 43841, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 45333, "end_char": 45341, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]} {"document_id": "1971_1_494_501_EN", "year": 1971, "text": "STATE OF U. P.\n\nRAHMATULLAH\n\nApril 23, 1971\n\n[S. M. SIKRI, C. J., P. JAGANMOHAN REDDY AND I. D. DUA, JJ.J\n\nForeigners Act (31 of 1946), s. 14-Prosecution under-No detennillation by Central Govern1nent of accused's nationality under Citizenship Act, 1955, before prosecution- Legality of prosecution.\n\nThe respondent was a citizen of India at the commencement of the Constituti9n in 1950. He entered India on April 1, 1955, with a Pakistani passport dated Mar.ch 15, 1955, and overstayed in India beyond the permitted period.\n\nHe was arrested in 1963 and was charged with an offence under s. 14 of the Foreigners Act, and convicted. While the criminal prJ ceedings were pending, the Central Government, under s. 9(2) of the Citizenship Act, 1955, read with r. 30 of Citizenship Rules, 1956, determin ed on November 5, 1964, that the respondent had acquired citizen5hip of Pakistan after January 26, 1950, and before March 15, 1955. The High Court set aside the conviction.\n\nOn appeal to this Court,\n\nHELD: (1) The respondent was not a 'foreigner' within the meaning of the Foreigners Act before its amendment in 1957.\n\n[500 G-H]\n\n(2) Having been a citizen of India at the commencement of the Constitution and not being a foreigner under the Foreigners Act at the date of his entry, till the Central Government determined the question of the respondent having acquired Pakistan nationality and thereby lost Indian nationality, he could not be treated as a foreigner and no penal act!on could be taken against him. [497 G; SOl A-BJ ·\n\n(3) The order of the Central Government dated November 5, 1964 determining that the respondent was a Pakistani was final, but the deter ruination by the Central Government c, ould not have the effect of retro:5pectively rendering his stay in India before that date a penal offence. It \\Vas not as if he was given any directions after November S, 1964, which were disobeyed by him entailing his prosecution.\n\n[501 C-E]\n\nCRIMINAL APPELLATE JURISDICflON: Criminal Appeal No. 167 of 1968.\n\nAppeal from the judgment and order dated January 18, 1968 of the Allahabad High Court in Criminal Revision No. 1482 of 1966.\n\n0. P. Rana, for the appellant.\n\nBashir Ahmed and S. Shaukat Hussain, for the respondent.\n\nH The Judgment of the Court was delivered by\n\nDua, J.-The State of U.P. has appealed to this Court on certificate of fitness granted by the Allahabad High C an Indian national.\n\nThe Magistrate trying him rejected his defence and convicted him holding that he had disowned Indian nationality by obtaining a Pakista.n passport and that by refusing to .extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner under s. 8 of the Foreigners Act and that such a decision was final. He wa.s convicted by the Trial Court and the conviction was upheld by the Sessions Judge. The High Court in revision set aside his conviction. On appeal this Court held that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own thM the respondent, an Indian national, had disowned his nationality and acquired Pakistan nationaJity for under s. 9(2) of the Citizenship Act that decision could only be made by the prescribed authority.\n\nThe respondent in that case, accoraing to this Court, had become an Indian citizen under Art. 5(a) of the Contitntion W~Fn it\n\n(1) [1962] Supp. 3 s. C. R. 235\n\n(2J [1962] IS. C.R. 737.\n\n600 [1971) SUPP. s.c.R,.\n\nA caine into force aind there being no determination by the Central Government that he had lost his nationality thereafter, the order of the High Court acquitting him was upheld.\n\nIn Shuja-Ud-Din v. The Union of India and Another (') thi~ Court speaking through Gajendragadkar, J. as he then wais. said:\n\n\"It is now well settled that the question as to whether a person who was a citizen of this country on January 26, 1950, has lost his citizenship thereafter, has to be determined under the provisions of section 9 of the Citizenship Act, 1955 (No. LVII of 1955). There is ailso no doubt that this question has to be decided by the Central .Government as provided by Rule 30 of the Rules framed .under the Citizenship Act in 1956. The validity of section 9 as well as of Rule 30 has been upheld by this Court in the case of lzhar Ahmad Khan and Ors. v. Union of .India and Ors. It has also been held by this Court in The State of Madhya Pradesh v.\n\nPeer Mohd, and Anr. (CrL Appeal No. 12 of 1961 decided on Sept. 28, 1962) that this question has to be determined .by the Central Government before a person who was a citizen of India on January 26, 1950, could be deported on the ground that he has lost his citizenship rights thereaifter under s. 9 of the Citizenship Act.\n\nUnless the Central Government decides this question, such a person cannot be treated as a foreigner and cannot be deported from the territories of India.\"\n\nIn Abdul Sattar Haji Ibrahim Patel v. The State of Gujarat(~.\n\nGajendragadk.ar, C. J., speaking for a bench of five Judges ap proved the decisions in the cases of lzhar Ahmed Khan(') and Syed Mohd. Khan('), it being emphasized that the decision of the Government of India is a condition precedent to the prosecution by the State of any person on the basis that he has lost his citizenship of India and has acquired that of a foreign country.\n\nThat an inquiry under s. 9 of the Citizenship Act can only be held by the Central Government was again re-affirmed by this Court in Mohd. Ayub Khan v. Commissioner of Police, Madras (').\n\nIn view of these decisitms it seems to us to be obvious that till the Central Government determined the question of the respondent having acquired Pakistan nationality and had thereby\n\n(I) C. A. No. 294 of 1962 decided on Oct. 30, 1962.\n\n(2) Cr. A. No. 153 of 1961 de.cided on Feb. 17, 1964.\n\n(]} [19621 l!upp. 3 S. <:;. R 730.\n\n(4) [1962) Supp. 3 S. C. R. 288.\n\n(5) [196S] 2 S. C. R. 884.\n\nU. p, STATE v. RAHMATULLAH (Dua, J.) 501.\n\nlost Indian nationality, he could not be treated as a foreigner . A and no penal action could be taken against him on the basis of his status as ai foreigner, being national of Pakistan. It is not the appellant's case before us that f!.l)Y directions under the law governing foreigners were given to the respondent after Novem ber 5, 1964, which were disobeyed entailing his prosecution, and indeed it is admitted that he was not even informed of the decision of the Central Government till Mairch 29, 1965.\n\nIt is also noteworthy that at the time when the Central Government deter mined his nationality he was being tried in this country by the criminal court after having been arrested aind bailed out, and he was not free to leave this country for proceeding to Pakistan.\n\nIn the background of these facts it appears to us that the wide charge as framed against him was misconceived and he could not be convicted of overstaying in this country at least till he was duly found to be a Pakistani national and to have ceased to be an India.n citizen. The order of the Central Government is clearly final, and it has remained unchallenged by the respondent even after he was informed of this order on March 29, 1965. We have seen the proceedings of the Central Government and we firid that the respondent had been given full opportunity of putting forth his case. The binding nature of tha.t order was not, and indeed it could not be, questioned before us.\n\nThe determination by the Central Government in this case could not have the effect of ret rospectively rendering a penal offence an act which was not so at the time of its commif1Sion. The respondent even though held to be a Pa-kistani, and therefore a foreigner, before the charge was framed against him is entitled to the protection of our laws.\n\nAs a result of the foregoing discussion, the High Court was in our opinion right in setting aside the respondent's conviction on the charge framed. It will of course be open to the Central Government to take such suitable action against the respondent under the Foreigners Act or under any other provision of the law which may be applicable to him, for the purpose of either deporting him or otherwise dealing with him as is thought fit.\n\nThis appeal, however, must fail.\n\nV.P.S.\n\nAppeal ilismissed.", "total_entities": 66, "entities": [{"text": "STATE OF U. P", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "STATE OF U. P", "offset_not_found": false}}, {"text": "RAHMATULLAH", "label": "RESPONDENT", "start_char": 16, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "RAHMATULLAH", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 46, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "P. 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"label": "STATUTE", "start_char": 7848, "end_char": 7862, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7961, "end_char": 7965, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 7973, "end_char": 7987, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(a.)", "label": "PROVISION", "start_char": 8145, "end_char": 8153, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 8161, "end_char": 8175, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 8364, "end_char": 8369, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 8377, "end_char": 8391, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 1", "label": "PROVISION", "start_char": 9064, "end_char": 9073, "source": "regex", "metadata": {"statute": null}}, {"text": "Aliens Act, 1914", "label": "STATUTE", "start_char": 9116, "end_char": 9132, "source": "regex", "metadata": {}}, {"text": "Citizenship Act, 1955", "label": "STATUTE", "start_char": 9308, "end_char": 9329, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 5", "label": "PROVISION", "start_char": 9628, "end_char": 9637, "source": "regex", "metadata": {"linked_statute_text": "The Citizenship Act, 1955", "statute": "The Citizenship Act, 1955"}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 10741, "end_char": 10748, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 10756, "end_char": 10771, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 11071, "end_char": 11076, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 11084, "end_char": 11098, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9", "label": "PROVISION", "start_char": 11845, "end_char": 11849, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 11857, "end_char": 11872, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "III and deal with the matter in accordance with the other relevant Rules framed under the Act", "label": "STATUTE", "start_char": 13460, "end_char": 13553, "source": "regex", "metadata": {}}, {"text": "s. 3(2)(c)", "label": "PROVISION", "start_char": 14677, "end_char": 14687, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 14695, "end_char": 14709, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 14807, "end_char": 14812, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 14820, "end_char": 14834, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 8", "label": "PROVISION", "start_char": 15170, "end_char": 15174, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 15182, "end_char": 15196, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 15612, "end_char": 15619, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 15627, "end_char": 15642, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 5(a)", "label": "PROVISION", "start_char": 15795, "end_char": 15804, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 16425, "end_char": 16434, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act, 1955", "label": "STATUTE", "start_char": 16442, "end_char": 16463, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 16626, "end_char": 16641, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 9", "label": "PROVISION", "start_char": 16667, "end_char": 16676, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act, 1955", "statute": "the Citizenship Act, 1955"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 17164, "end_char": 17168, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act, 1955", "statute": "the Citizenship Act, 1955"}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 17176, "end_char": 17191, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9", "label": "PROVISION", "start_char": 17815, "end_char": 17819, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 17827, "end_char": 17842, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 20483, "end_char": 20497, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]} {"document_id": "1971_1_502_509_EN", "year": 1971, "text": "SPENCER & CO.\n\nSTATE OF MYSORE & OTHERS April 27, 1971\n\n[S. M. SIKRI, C. J ., G. K. MITTER, C. A. VAIDIALINGAM,\n\nP. JAGANMOHAN REDDY AND I. 0. DUA, JJ,] City of Bangalore Municipal Corporation Act, 1949 as amended by City of Bangalore Municipal Corporation Act, 1964, ss. 98, 99 and 100- Levy of property tax-Vacant land taxed at uniform rate on niarket value of land-Provisions whether discriminatory-Whether procedure in s. 98 relating to levy of new tax ought to have been followed.\n\nThe appellant company owned a hotel at Bangalore.\n\nThe vacant land apppurtenant to the building was used for the beneficial enjoyment of the building as gardens and lawns. Under s. 99(2) (b) of the City of Bangalore Municipal Corporation Act, 1949 as amended in 1964 land appurtenant to a building not exceeding thrice the area occupied by the building was to be taxed as a part of the building, land in excess of that limit was to be taxed at a uniform rate of 0.4 per cent of its market value.\n\nA notice was issued to the appellant on March 20, 1966 demanding tax on the vacant land in excess of thrice the area occupied by the hotel building.\n\nThe appellant challenged the levy in the High Court but its petition under Art. 22.6 was dismissed.\n\nIn this Court the questions that fell for considerations were: (i) whether for the reasons canvassed by the appellant the tax was discriminatory; (ii) whether the levy was invalid on the ground that the procedure in s. 98 for the levy of a new tax bad not been folldwed.\n\nHELD: (i) The Act is not discriminatory. The scheme of the Act is that the market value of the land is first ascertained and then the tax at 0.4 per cent is levied. Under sub-s. (3) of s. 99 the Commissioner has to determine the market value of the land and sub-s. (3) of s. 100 gives guidance as to how to determine the market value of the land.\n\nThe expressions •estimated value' and the word 'area' in s. 100(3) are not vague. In the context of determining the market value of the land, which has a well-known connotation the Commissioner is directed to look at the lands in the area of the land which is being assessed.\n\nIn the context he can only look at land~ which are similarly situate and are imilar in nature to the lands being assessed, and the area must mean the locality in which the land is situate and the extent of the locality would be determined by the well-known characteristics such as commercial area, residential area or factory area etc. In other words the sub-section is drawing the attention of the Commissioner to the well-known principle, which is followed in assessing the market value, that lands similarly situate and of similar potentiality should be taken as exemplars.\n\n(ii) This Court has held that the State legislatures have power to levy property tax by assessing the market value of it and levying a percentage on it. If all lands are assessed to the same rate of taxation it cannQt be held that there is per se any discrimination.\n\nMaret value of land always bears a definite relationship to the actual or potential income being derived or derivable from the . land and there cannot be any obji; ction to a levy at uniform rate on market value. Moopil Nair's case where no attention was paid at all to income of th:C land was therefore distinauishable.\n\nSPBNCBR & CO. v. MYSORB (Sikri, C.J.)\n\nK11nnathat Thathunni Moopil Nair v. State of Kera/a, [1961] 3 S.C.R. 77, 91 and State of Kera/a v. Haii K. Kutty,\n\n(1969) I S.C.R. 645, dis tinguished.\n\n(iii) No discrimination can be said to result from the fact that land appurtenant to a building not exceeding thrice the area occupied by such building bas been treated as a part of the building and taxed as such whereas land in excess of thrice the area of a building and other lands not appurtenant to buildings have been classified separately. In cities like Bangalore where land is scarce, excessive use of land as gardens and grounds is not in the public interest arid the legislature can validly tax the excess land on a different and higher basis.\n\nIt may in a particular case cause hardship but the legislature carinot be denied the right to clasw sify the lands in such a manner.\n\nThree times the area occupied by a building is not a small area and it cannot be held that this figure is not reasonable.\n\nIt was not necessary to specify as to which land would be treated as surplus because the idea is to tax the excess land being used for a particular building and such land would be located in a block.\n\n(iv) It was not necessary to have followed the procedure in s. 98 of the Act to levy the impugned tax. The lands were being assessed to pro perty tax even before the 1964 Act eithr separately or as part of the building. It could not be said that the tax was being imposed for the first time within the meaning of s. 98.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1852 of 1967.\n\nAppeal by special leave from the judgment and order dated\n\nMarch 28. 1967 of the Mysore High Court in Writ Petition No.\n\nE 704 of 1966.\n\nR. B. Datar, for the appellant.\n\nA. R. Somnath Iyer and S. P. Nayar, for respondent No. 1.\n\nRamr.mmissioner. The appellant a.lso filed a writ petition under art. 226 of the Constitution challenging s. 99(2)(b) of the Corporation Act, as amended by the 1964 Act, as unconstitutional .and void and prayed for other consequential reliefs.\n\nWe may now set out the relevant provisions of the Corporation Act, a.s amended by the 1964 Act. Part III Chapter V of the Corporation Act deals with taxes.\n\nSection 97 enumerates taxes and duties which the Corporation may levy and one of the taxes enumerated therein is \"a property tax\".\n\nSection 98()) r~ quires that before the corporation pa.sses any resolution imposing a tax or duty for the first time it shall direct the commissioner to publish a notice in the Official Gazette and fix a reasonable period not being Jess than one month from the date of publication for submission of objections.\n\nThe sub-section further provides tha.t the Corporation may after considering the objections, if any, received within the period specified, determine by resolution to levy the tax or duty and such resolution shall specify the rate at which, the date from which and the period of levy, if any, for which such tax. or duty shall be levied. Sub-s. (2) of s. 98 provides that \"when the corporation shall have determined to levy a.ny tax or duty for the first time or at a new rate, the commissioner shall forthwith publish a notice in the manner laid down in sub-section ()) specifying the date from which, the rate at which and the period of levy, if any, for which such tax or duty shall be levied.\" Sub-sections (3) and (4) are not relevant for our purpose.\n\nSection 99()) reads a.s under:\n\n\"If the corporation by a resolution determines that a property ta.x shall be levied. such tax shall be levied on all buildings and lands within the city save those exempted by or under this Act or any other law.\"\n\nsub-section (2) of s. 99, provides :\n\n\"(2) S&ve as otherwise provided in this Act, the property tax shall be levied,-\n\n(a) in the case of btiildings at such percentages, not being less than ten per cent and not more than twenty per cent of the annual value of such buildings as may be fixed by the Corporation :\n\n.Provided that the percentage to be fixed may be different for different classes of buildings.\n\nS\\]PRBMB COURT RBPORTS [1971] SUPP. s.c.R.\n\n(b) in the case of any land at 0.4 per cent of the\n\nmarket value of the land :\n\nProvided that the tax levied on any such land shall not be less than rupees ten per annum.\n\nExplanation.-For purposes of this section, 'buil ding' includes any land appurtenant to such building used as garden and grounds for the more beneficial en joyment of such building, not exceeding thrice the area occupied by such building.\"\n\nSub-section (3) of s. 90 reads :\n\n\"(3) For the purposes of assessing the property tax the annual vailue of any building or the market value of the land shall be determined by the Commissioner :\n\nProvided that the annual value of any building or the market value of the land the tax for which is pay able by the commissiiiner shaill be determined by the mayor.\"\n\nSection 100(1) provides that every building shall be assessed together with its site ahd other adjacent premises occupied as appurtenances thereto unless the owner of the building is a different person from the owner of such site or 1 ·emises. Sub- . section (2) of s. 100 provides: ·\n\n\"The annual value of ai building shall be deemed to be the gross annual rent at which such building may at the time of assessment reasonably be expected to let from month to month or from year to year, less a deduction of 16! per cent of such annuail rent and th~ said deduction shall b'e in lieu of all allowance for repairs or on any other account whatever ...... (proviso omitted).\"\n\nSub-section (3) provides that \"the market value of lands shall be determined in accordance with the estimated value at the time of assessment of such lands in the area in which such lands are situate.\"\n\nIt is contended that the tax on vacant land is violative of Art. 14 of the Constitution because (i) it is levied at an averagerate without any relation to the actual or potential income of the land; (ii) the mainner of determining the market value was discriminatory, and (iii) the classification of vacant land and land appurtenant to a building is discriminatory. The learned coun-· eel relied rm the decision of this Court irr Kunnathat Thathunni'\n\nMoopil Nair v. The State of Kera/a('). It will be remembered A that the charging section in that case was s. 4 of the Travancore Cochin Land Tax Act, 19SS, which read as follows :\n\n\"4. Subject to the provisions of this Act, there sh\"ll be charged and levied in respect of all lands in the State, of whatever description and held under whatever tenure, B a uniform rate of tax to be called the basic tax.\"\n\nOur attention wa.s drawn to the following passage in Chief Justice Sinha's judgment :\n\n\"It is common ground that the tax, assuming that C the Act is really a taxing statute and not a confiscatory measure, as contended on behaH of the petitioners, has no reference to income, either actual or potential. from the property sought to be taxed ......... Ordinarily, a tax on land or land revenue is assessed on the actual or the potential productivity of the )Mid sought to be taxed.\n\nD In other words, the tax has reference to the income ac tually made, or which could have been made, with due diligence, and, therefore, is levied with due regard to the incidence of the taxation. Under the Act in question we shall take a hypothetic\"! case of a number of persons owning and possessing the same area of land. One makes nothing out of the land, because it is arid desert.\n\nThe second one does nor make any income, but could raise some crop &fter a disproportionately large invest ment of labour and capital. A third one, in due course of husbandry, is making the land yield just enough to pay for the incidental expenses and labour charges be r sides land tax or revenue. The fourth is m\"king large profits, because the land is very fertile and capable of yielding good crops. Under the Act, it is manifest that the fourth category, in our illustration, would easily be able to bear the burden of the tax. The third one m\"y be able to bear the lax. The fltst and the second one will have to pay from their own pockets, if they could G afford the tax. If they cannot afford the tax, the pro\n\nperty is liable to be sold, iii due process of la.w, for realisation of the public demand. It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions o! the taxing section. It is also clear that there is no attempt at classification in the pro- H visions of the Act.\"\n\n(1) [1961) 3 S. C.R. 77, 91.\n\n!0.8\n\nSUPREME COURT RBPOB.TS [!971] SUPP. s.c.R.\n\nWe are unable to hold that the impugned Act is discnmtnatory. The scheme of the Act is that the market value of the land is first ascertained and then taix at 0.4 per cent is levied.\n\nUnder sub-s. (3) of s. 99 the Commissioner has to determine the urged by the learned counsel that the expression \"estimated as to how to determine the market value o~ the land. It was urged by the learned counsel that the expression \"estimated value\" and the wotd \"area\" are very vague.\n\nWe are unable to agree with him in this respect.\n\nIn the context of determining the market value of the land, which has a well-known connotation, the Commissioner is directed to look at the lands in the area of the land which is being assessed. In the context he can only look at the lands which are similarly situate, a.nd are similar in nature to the lands being assessed, and the area must mean the locality in which the land being assessed is situate and the extent of the locality would be determined by the well-known characteristics such as commercial area, residential area or factory area, etc. In other words the sub-section is dra.wing the attention of the Commissioner to the well-known principle, which is followed in assessing the market value, that lands similarly situate and of similar potentiality should be taken as exemplars.\n\nThe next question that arises is whether fixing property tax at 0.4 per cent is itself discriminatory.\n\nWe are unable to see how this is discriminatory.\n\nThis Court has held that the State legislatures have power to levy property ta.x by assessing the market value of it and levying a percentage on it. If all lands are assessed to the same rate of .taxa.tion we are unable to see how there is per se any discrimination. The facts in Kunnathat Thathunni Moopil Nair v. The State of Kerala(') were quite different.\n\nThere no a.ttention was paid at all to the income of the land. Here it is true that income of the land is not taken into consideration and instead market value is the basis of taxation. But market value of land always bears a definite relationship to the actual or potential income being derived or derivable from the land and there cannot be any objection to a levy at tmiform rate on the market va.lue.\n\nReference was made to the decision of this Court in State of Kerala v. Haji K. Kutty('). There the facts were again quite different. The legislature adopted the floor-area of the building as the basis of tax irrespective of all other consideration.\n\nThe market value of the property stands on a different footing because, like income, the market value of property is one of the indices of the benefit which the owner denves or can derive from It and the very concept of market value takes into account the present or the potential income and other releva.nt considerations.\n\n(!) [19611 3 S. C. R. 77.\n\n(2) (1969) I S. C.R. 645\n\nIt was next contended that the classification of vacant land is discriminatory. While land appurtenant to a building used a& garden and as grounds for the more beneficial enjoyment of such building, not exceeding thrice the area occupied by such building, has been treated as a part of the building and taxed as such, }!j.nd in excess of thrice the area of a building and other lainds\n\nnot appurtenant to buildings have been classified separately. The learned counsel said that the distinction is artificiail as the land in excess of thrice the area of a building is also being used for the same beneficial enjoyment of the building. It seems to us that in cities like Bangalore, where land is scarce, excessive use of land ru; gardens and grounds is not in the public interest and the legislature can validly tax the excess land on a different and higher basis. It may in a particular case cause hardship but the legislature cannot be denied the right to classify the lands in such a manner. Three times the area occupied by a building\n\n- is not a mall area and we are unable to hold that this figure is not reasonable.\n\nIt was said that the Act did not give any indicaition as tp which land would be treated as surplus but in our view it is not necessary to specify the lands because the idea is to tax the excess land being used for a pacticular building and as this land would be located in a block It was not necessary to specify the land.\n\nThe last point urged before us was that this was a new tax and the procedure prescribed in s. 98 should haive been followed.\n\nWe are unable to hold that it is a new tax. Tax was being levied before the 1964 Act. The lands were being assessed to property tax even before the 1964 Act, either separately or as part of the building. We cannot say that this tax is being imposed for the first time within the meaning of s. 98.\n\nIn the result the appeal fails and is dismissed but in the circumstances there will be no order as to costs.\n\nG.C.\n\nAppeal dismissed.\n\n50~\n\nIll", "total_entities": 44, "entities": [{"text": "SPENCER & CO", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "SPENCER & CO", "offset_not_found": false}}, {"text": "STATE OF MYSORE & OTHERS", "label": "RESPONDENT", "start_char": 15, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE & OTHERS", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 57, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 78, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "G.K. 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8463, "end_char": 8471, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 99(2)(b)", "label": "PROVISION", "start_char": 8504, "end_char": 8515, "source": "regex", "metadata": {"statute": null}}, {"text": "may now set out the relevant provisions of the Corporation Act", "label": "STATUTE", "start_char": 8646, "end_char": 8708, "source": "regex", "metadata": {}}, {"text": "Part III Chapter V of the Corporation Act", "label": "STATUTE", "start_char": 8739, "end_char": 8780, "source": "regex", "metadata": {}}, {"text": "Section 97", "label": "PROVISION", "start_char": 8800, "end_char": 8810, "source": "regex", "metadata": {"linked_statute_text": "Part III Chapter V of the Corporation Act", "statute": "Part III Chapter V of the Corporation Act"}}, {"text": "Section 98()", "label": "PROVISION", "start_char": 8932, "end_char": 8944, "source": "regex", "metadata": {"linked_statute_text": "Part III Chapter V of the Corporation Act", "statute": "Part III Chapter V of the 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"end_char": 12418, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 12909, "end_char": 12913, "source": "regex", "metadata": {"statute": null}}, {"text": "[1961) 3 S. C.R. 77", "label": "CASE_CITATION", "start_char": 15114, "end_char": 15133, "source": "regex", "metadata": {}}, {"text": "s. 99", "label": "PROVISION", "start_char": 15394, "end_char": 15399, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 98", "label": "PROVISION", "start_char": 19595, "end_char": 19600, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 98", "label": "PROVISION", "start_char": 19920, "end_char": 19925, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_510_520_EN", "year": 1971, "text": "~10\n\nINDIAN AIRLINES CORPORATION\n\nSUKHDEO RAI\n\nApril 27, 1971\n\n[J. M. SHELAT, 1'. D. DUA AND V. BHARGAVA, JJ.]\n\nAir Corporation Act, 1953-Sections 44, 45-Regulation framed under the Act providing terms and conditlom of service of employees- Termination of service in breach of regulations-Relationship between Corporation and its employee~ that of master and servant-Therefore, only entitled to damages. C Regulations-Framed under Air Corporation Act, 1953-Stalu.J of.\n\nMaster and &; vant-Employees of statutory corporation-Regulations framed under statute only embody terms and conditiom of service.\n\nThe appellant is a Corporation set up under the Air Corporation Act, 1953.\n\nThe Act authorises the corporation to appoint officers and other employees and make regulations providina the terms and conditions of service of such officers and employees.\n\nThe respondent employed as a motor driver was dismissed from the service of the Corporation in breach of the procedural safeguards provided under the regulations. He filed a suit for a declaration that the dismissal was illegal and void, The trial court granted the declaration.\n\nOn appeal the High Court affirmed the decree holding that the Corporation was under a statutory obligation to observe the procedure laid down in the regulations and that not having been done the order of dismissal was illegal and void and the respondent continued to be in the employment of the Corporation as if there was no termination of service.\n\nOn the question whether the declaration siven by the trial court and upheld by the High Court could be granted,\n\nHELD: (1) When there is a purported termination of a contract of service, a declaration that the contract of service stili subsisted would not be made in the absence of special circumstances, because of the principle that courts do not ordinarily grant specific performance of service.\n\nThis is so, even in cases where the authority appointing an employee was acting in exercise of statutory authority. The relationship between the person appointed and the employer would, in such cases, be contra ctual i.e., as between a master and servant, and the termination of that relationship would not entitle the servant to a declaration that his employment had not been validly determined. [512H]\n\nFrancis v. Municipal Councillors of Kuala Lumpur, [1962] 3 All E.R. 633, Barber v. Manchester Regional Hospital Board, [1958] 1 All E.R. 322 and Ridge v. Baldwin, [1964] A.C. 40, referred to.\n\nBut the court would grant a declaration of nullity where the action complained of is ultra vires or where the appointment is to an office or status. [513E-F]\n\nVine v. National Dock Labour Board, [1957] A.C. 488, Boot Chand\n\nv. The Chancellor, [1968] 1 S.C.R. 434 and Vidyodaya University v. Silva, [19641 3 All E.R. 865, referred to.\n\nt.A.c. v. SUKHDEO RAI (She/at, J.) 511\n\n{ii) The fact that the appellant Corporation was one set up under and A was regulated by a statute would not take away, without anything more; the relationship between the Corporation and its employees from the category of purely master and servant relationship. [514E]\n\nVidyodaya University v. Silva, [1964] All E.R. 865 and Dr. S. B. Dutt\n\nv. University of Delhi, [19.59] S.C.R. 1236, referred to,\n\n(iii) The employment of the respondent is not one to an office or B -status and neither the Act nor the rules made under s. 44 by the Central Government lay down any obligation or restriction as to the power of the •Corporation to terminate the employment of its employees or any procetdural safeguards subject to which only such power could be exercised.\n\n,[516E]\n\n(iv) This Court has held that there are only three well-recognised exceptions to the general rule under the law of master and servant where C a declaration would be issued, viz .• (i) cases of public servants falling under article 311(2) of the Constitution; (ii) cases falling under the industrial law and (iii) cases where acts of statutory bodies are in breach of a mandatory obligation imposd by a statute.\n\n[517B]\n\nS. R, Tewari v. District Board, Agra, (1964] 3 S.C.R. 55, Bank of Baroda v. Mehrotra, [1970] 2 L.L.J. 54, Ram Babu Rathaur v. Life lnurance Corporation. A.I.R. 1961 All. 50:!, Life Insurance Corporation v, D N. Banerjee, [1971] 1 L.L.J. 1, Dr. Gupta v. Nathu, [1963] 1 S.C.R, 721, Kruse v. Johnson, [1898] 2 Q.B.D. 91 and Rajasthan State Electricity Board\n\n\n(v) Though made under the power conferred by statute, the regulation~ merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporation can make with its servants or the grounds on which it can terminate them. That being so, ancl the Corporation having undoubtedly power to dismiss its employees, the dismissal of the respondent was with jurisdiction and although it was wrongful in the sense of its being in breach of the terms and conditions which governed the relationship\n\nbetween the Corporation and the respondent, it did subsist. [5:!00]\n\n(vi) The present case, therefore, did not fall under any of the three well-recognised exceptions laid down by this Court; hence the respondent was only entitled to damages and not to the declaration that his dismissal\n\nwas null and. void. [520E]\n\nCiviL APPELLATE JURISDICTION: Civil Appeal No. 1171 of 1967.\n\nAppeal from the judgment and decree dated September 27, 1966 of the Calcutta High Court in Appeal from Appellate Decree No. 195 of 1964.\n\nG. B. Pai, 0. C. Mathur, J. B. Dadachanji, C. S. Sreenivasa\n\nRao and Bhajan Ram Rakhini, for the appellant. H\n\nUrmila Kapoor, lanardan Sharma and R. K. Khanna, for respondent.\n\n.....\n\nSUPRBMB COURT REPORTS\n\n[1971] SUPP. S.C.B..\n\nThe Judgment of the Court was delivered by\n\nShelat, J.-Prior to August 1953, the respondent was employed as a motor driver in Airways (India) Ltd. On the passing of the Air Corpora, tion Act, XXVII of 1953, and consequent thereupon of the taking over of the existing air companies, including the Airways (India) Ltd., by the appellant-Corporation. he became the employee of the appellant-Corporation. On January 13, 1956, he wae suspended on certain charges. On being found guilty of those charges after an enquiry had been held. he was dismissed by an order dated February 6, 1956.\n\nThe respondent filed a suit alleging that the enquiry had been conducted in breach of the procedure la, i!; I down by the Regulations made by the Corporation under sec. 45 of the Act. and that therefore, the dismissal was illegal and void. The Trial Court accepted the contention and granted 31 declaration that his service continued as the order dismissing him was null and void.\n\nThat decree was. upheld by the first appellate court. In a second appeal in the High Court, it was conceded that the Regulations applied to the respondent's case, and that the procedure therein laid down for terminating his service 'was nbt complied with.\n\nThe Corporation's contention, however, was that the only relief • to which the respondent wae entitled to was damages and that a declaration, such as the one granted by the Trial Court, could not be given. The High Court rejected that contention holding that the Corporation was under a statutory obligation to observe the procedure la, id down in the Regulations, and that that not having been done, the order of dismissal was illegal and void.. and the respondent continued to be in the employment of the Corporation as if there was no termination of service. This appeal,. founded on a certifica, te granted by the High Court, is directed against its aforesaid judgement and decree.\n\nIt being an admftted fact that the respondent's service was terminated in breach of the procedur&l safeguards provided in the Regulations, the question for determination iS1 whether in cases, such as the one before us, a declaration given by the Trial Court and upheld by the High Court could be granted.\n\nIt is a well settled principle tha, t when there is a purported termination of a contract of service, a declaration, that the contract of service still subsisted, would not be made in the absence of special circUlllstances becawe of the principle that courts do not ordinarily grant specific performance of service. This is so, even in cases where the authority appointing an employee was acting in exercise of statutory authority. The rel31tionship between the person appointed and the employer would in such cases\n\nJ .A.C. V. SUK, HDBO RAI (She/at, J.) 5U\n\nbe contractual. i.e.. as between a master and servant, &nd the terminatioa of that relationship would not entitle the servant to a declaration that his employment had not been validly determined. (see A. Franci.! v. Municipal Councillors of Kuala Lumpur (I) and Barber v. Manchester Regional Hospital Board (~.\n\n\"Cases of dismissal fall into three cl31Sses\", said Lord Roid in Ridge v. Baldwin, (') firstly, dismissal of a servant by his master, secondly, dismissal from office hei.d during pleasure, and thirdly, dismissal from office where there must be something a-gainst a man to warrant his dismissal. It is in the third category of cases that an employee cannot be dismissed without first letting him know what is alleged against him and hearing his defence or explanation. He added thatt in a case of purely master and servant relationship, the servant is not entitled to say that he was ; J.Ot heard by his master before his dismissal.\n\nSuch a question of being hea.rd or not can only arise where the authority employing the servant is under some statutory or other restriction as to the kind of contract which it can make with its servants or the grounds on which it can dismiss them.\n\nThe question, therefore, would be whether the relationship between the Corporation and the respondent was any thing else than that of master and servant, or whether the Corporation was under some statutory limitation or obligation by reason of which it could not termin<~te his service except by complying __ with such an obli\n\ngation. The decision in Vine v. National Dock Labour Board (') illustrates a case where the court would grant a declaration of nullity. That WliiS a case of lack of power in the Board to delegate its disciplinary function to a committee which dismissed the employee-an action which was held ultra vires, and therefore, a nullity.\n\nA similar consequence also follows where the appointment is to a.n office or status, such as the vice-chancellorship of a university, as was the case in Bool Chand v. The Chancellor ('), where this Court held that the tenure of office held by the appellant could not be terminated without informing him of the a-llegations made against him and without hearing him or giving him an opportunity to give an explanation.\n\nThere is, on the other hand, the case of Vidyodava Univerv sity v. Silva (') where a teacher appointed by the University was found not to be holding such an office or status and where it was held that the University, though established under a statute, was under no statutory obliga-tion or restriction, subject to which only it could terminate the service of the teacher. The service\n\n(1) [1962]3 All E.R. 633.\n\n(3) {1964] A.C. 40 at 65.\n\n(5} [I96S]t s.c.R. 434.\n\n33-1S.C.Indiaf71\n\n(2} [1958)1 All E.R. 322.\n\n(4) (1957] A.C. 488.\n\n(6) [196413 Ali B.R. 865.\n\nSUPREME COURT REPORTS\n\n(1971] SUPP. S.C.R..\n\noi the respondent was brought to an end by a resolution of the University Council set up under the statute establishing the University. The resolution was admittedly passed without hearing the teacher. Under the statute, the Council was empowered to institute professorships &nd every appointment was to be by an agreement in writing between the University and the professor and was to be for such period and on such terms as the Council might resolve. Under sec. 18(e) of the Act, the Council had the power to dismiss an officer or a teacher on grounds of incapacity or conduct which in the opinion of nQt less than two-thirds of the members of the Council rendered him unfit to be an officer or a\n\nteacher of the University. Such a resolution with the requisite majority was passed. The Act gave no right to the teacher of being heard by the Council.\n\nThe Privy Council held that the mere circumstance that the University was established by the statute and was regul<~ted by statutory enactments contained in the Act did not mean that the contracts of employment made with teachers, though subject to sec. 18(e), were other than ordi nary contracts of master and servant, and therefore, the procedure of being heacd invoked by the respondent was not available to him and no writ could be issued against the University. (see also Dr. S. B. Dutta. v. University of Delhi (1) The fact, therefore, that the appellant-Corporation was one set up under and was regulated by Act XXVII of 1953 would not take aW&y, without anything more, the relationship between it and its employees from the category of purely master and servant relationship.\n\nAre there then in the Act any provisions which impose upon the Corporation any statutory restriction or obligation which limits its power of terminating that relationship?\n\nThe Act was passed to facilitate acquisition by the Air Corporations of undertakings belonging to certain existing air compa;- nies and to make further and better provisions for the operation of air transport services. By sec. 3, two corporations, the Indian Airlines and Air India International, were set up as bodies corporate, having perpetual succession.\n\nSec. 8(1) provides that for purposes of discharging its functions under the Act each of the corporations shall appoint a general mana.ger and subject to such rules as may be prescribed in this behalf may also appoint such number of officers and employees as it may think necessary. Its second sub-section provides that :\n\n\"Subject to the provisions of section 20, every person employed by each of the Corporations shall be subject to such conditions of service and shall be entitled to such remuneration and privile~?:es as may be determined\n\n(1) [l9S9]S.C.R.1236, at 1244.\n\nI.A.C. V. SUKHDEO RAI (She/at, J.} 515\n\nby regulations made by the Corporation by which he :A is employed.\" ·\n\nSc. io provides that:\n\n. \"Every officer or other employee of an existing air\n\ncompanyemployed by that company prior to the first day of July, 1952, and stilt in its employment immediately bef~:>re the appoi..rited da.te shall-become as from the appointed date an officer or other employee, as the case may be, of the Corporation in which the undertaking has vested and shall hold his office or service therein by \"the same tenure, at the sa.me remuneration and upon . the same terms and conditions and with the same rights and privileges as to pensions and gratuity and other. at ters as he would have held the same under. the eXIsting air company if its undeaking had not vested in the. Co~\n\nporatiort and shall contmue to do so unless and until h1s\n\nmployment in the Coi:poration is terminated or until his rem11neration, terms or conditions are duly altered by the Coi:poration.\"\n\nSei:. 44(1) empower~ the Centrai Government to make rules to give effect to the provisions _of the . Act and sul>-s. (2) thereof empowers it, in particular and without prejudice to the generality of that power, to make rules, inter alia, providing the . terms and conditions of service of the general manager and such other categories of officers as may be specified from time to time under s. 8(1). Sec. 45 authorises each of the two Ccirpora.tioris with the approval of the Central Government and by notification in\n\nth~ Government gazette . to make regulations not inconsistent wtth the Act or the rules made under s: 44 \"for the administration of the affairs of the Corpora.tion and for carryino out its\n\nfunctios\" and in particular providing the terms and cnditions of scrv1ce of officers and other employees of the Corporation\n\nothr than the gecral manager and officers of any other categones referred to m s. 44.\n\n. . Te effect of these_ provisions,. briefly, is, (l) that sec. 8(1) authonses the Corporatton to appomt officers and other emp-- ~~; es, (2) that under s. 8(2) the Corporation is empowered. sub- !ucb to s. 20, to lay down the terms and conditions of service ot made offi'Jrs and employees as it may determine by regulations a.nd ed:ocr s. 45, and . (3.> tha.t by virtue of s. 20 the officers were tak yees of the cJusting aJr companies, whose undertakings of the At\" t~er by the Corporations, became, by the operation .\n\nundcrtakig employees of the Corporation in whom a particular was vested. The section ensures that on . their so\n\nI r\n\nSUPRI3ME COURT REPORTS [1971] SUPP. S.c.R.\n\nbecoming the employees of the Corporation they would be gover ned by the same terms and conditions of service by which they were governed immedia.tely before the appointed date until the Corporation altered those terms and conditions by regulations.\n\nThe power to appoint its employees, except to the extent of th.~\n\nemployees of the existing air companies becoming by operation of s. 20 its employees, is vested in each of the two Corporations.\n\nEach of them has also the power to lay down the terms and conditions of service of its employees by regula.tions and thereby even alter the terms and conditions, which those who became by operation of law its employees had in their respective existing companies, and which, until :Su¢h alteration, were ensured to them.\n\nIndeed, the power of the Corporation to terminate the employment of its officers and other employees was no where disputed: the only dispute raised was as to the manner in which it could be exercised. It is necessary to observe in this connection that neither the Act nor the rules made under sec. 44 by the Central Government lay down any obligation or restriction as to the power of the Corporation to terminate the employment ot' its employees or any procedural safeguards, subject to which only, such power could be exercised. The reason is that under the scheme of the Act such procedural eguards and other terms and conditions of service were to be provided for in the regulations made by the Corporation under sec. 45.\n\nThe employment of (the respondent not being one to an office or status and there being no obligation or restriction in the Act or the rules subject to which only the power to terminate the respondent's employment could be exercised, could the respondent contend that he was entitled to a. declaration that the termination of his employment was null and void?\n\nA case of an analogous nature arose in U. P. State Ware housing Corporation Ltd. v. Tyagi. (1) The Agricultural Produce (Development and Warehousing) Corporation Act, XXVIII of 1956, with which the Court there was concerned, provided for the incorporation and regulation of corporations for development and warehousing of agricultural produce on cooperative princi\n\nples. Sec. 28 empowered Sta.te Governments to set up such cor porations.\n\nSec. 52 authorised the appropriate Government to make rules and ss. 53 and 54 gave power to the Board set up under the Act and the corporations respectively to make regula tions consistently with the provisions of the Act and the rules.\n\nThe respondent there was dismissed from service without following the procedure laid down in regulation 16(3). There was no\n\n· SURPLUS\" or of any item under the heading \"CURRENT LIABILITIES AND PROVISIONS\" in the column relating to \"Liabili- D ties\" in the \"Form of Balance-sheet\" given in P&rt I of Schedule VI to the Companies Act, 1956 (I of 1956), shall not be regarded as a reserve for the purposes of computation of the capital of a company under the provisions of this Schedule ...\n\nIn 1Crms of s. 4 of the Act the first assessment year for the purpose of the Act in respect of the company was that commencing on and from the first day of April, 1964. The previous year in respect of which the chargeable profits had to be ascertained commenced on the first of April 1963 and ended on the 31st March,\n\n1964. The capital of the company in terms of rule 1 of the Second Schedule would be its paid-up share capital and inter alia reserves as would come under clauses (ii) and (iii) of rule 1 to the Second Schedule. The reserves in this case to which exception is being taken by the appellant as components of the capital of the company are the following three sums: (1) Rs. 2,56,000 as plant modernisation and rehabilitation reserve; (2) Rs. 1,00,000 as loan redemption reserve, and (3) Rs. 89,557/- as development rebate reserve. These are three of the items of reserve which the directors of the respondent in their report to the general body of the shareholders proposed as appropriations out of the profits of the year ending on 31st March, 1963.\n\n:!'.\n\nThe sole contention on behalf of the appell&nt is that these H appropriations having been made on the 8th August, 1963 could not be treated as components of capital \"as on the first day of the previous year\" i.e. 1-4-1963, in tenns of rule 1 to the Second\n\nSUPRBMB COURT R.BPORT6\n\n[1971) SUPP. S.C.R.\n\nSchedule.\n\nThe learned Solicitor-General submitted thM these could only be taken into consideration in the subsequent year commencing on the 1st of April 1964 on the ground that on the 1st of April 1963 they only formed a part of the mass of undistributed profits, no portion of which had been earmarked or set apart for any p31rticular purpose. In our view, this is not the correct way of appreciation of the action of the directors.\n\nIt is well known that the accounts of the company have to be made up for a year up to a particular day. In this case tht day was the 31st March, 1963. If it was reasonably practicable to ma.ke up the accounts up to the 31st March 1963 and present the same to the directors of the respondent on April 1, 1963 they could have made up their minds on that day and declared their intention of appropriating the said and other sums to reserves of different kinds. But the fact that thev could not do so for the simple reason that the ca.lculation anct' collection of figures of all the items of income, expenditure of the company for the year ending March 31, 1963 was bound to take some time cannot make\n\nanv difference to the nature or quality of the appropriation of the profits to reserves as determined by the directors after the first of April, 1963. Their determination to appropriate the sums mentioned to the three separate classes of reserves on the 8th August 1963 must be related to the 1st of April 1963 i.e. the hegitming of the accounts for the new year and must be treated as effective from that day.\n\nA cae very similar to the one before us came up for consideration before the Bombay High Court in Commissioner of Tn\n\ncome-tax, Delhi v. Aryodya Ginning & Manufacturing Co. Ltd. (I)\n\nIn that case the profits of the company for the year ended 31st December 1948 were shown as Rs. 28,56,997-14-2. The directors made certain appropriations which included Rs. 11,08,000 to reserve fund and Rs. 1,50,000 to dividend reserve fund. The report of the directors was made on April 27, 1949 and a general meeting of the shareholders held on 27th June 1949 adopted the report and recommendation of the directors. The company was aessed to business profits tax chargeable under the Business Profits Ta.x Act for the accounting period 1st January to 31st March 1949 and the question which arose was : what was the capital of the company for the accounting period. The company contended that its paid-up capital should be increased by the amount of reserYes contituted by the recommendation made by the directors and accepted by the share-holders. The Commisioner of Income-tax went up to the High Court on a reference contending that as the re\n\nserve wM not sanctioned till 27th June 1949 it could not be looked\n\n(1) 31 I, T.R. 145.\n\nc.I.T. v. MYSORE ELECT. LTD. (Mitter, J.)\n\nat or considered as reserves on a day prior thereto. The learned Judges of the Bombay High Court were of the view that the resolution of 27th June, 1949 had a retrospective effect inasmuch as it referred to the profits of the year ending on 31st December,\n\n194&, the appropriations to be made in the baAance-sheet as of that date and the reserves which should be constituted and shown in the balance sheet as on 31st December 1948. The High Court observed that when one looked at the_ balance sheet of the year ended 31st December 1948 the amounts mentioned were shown respectively in the reserve fi)nd and the dividend reserve fund and the shareholders by passing a resolution on 27th June, 1949 did not decide that these amounts should constitute reserves as from that date but they accepted the recommendation of the directors that these amounts should constitute reserves oo of 31st December. 1948.\n\nThe learned Solicitor-General referred to a judgment of the Madras High Court in Commissioner of Income-tax v. Vasantha\n\nMil!J Ltd. (1) where the Madras High Court dissented from the view expressed by the Bombay High COurt on the ground tha.t there could be no reserve until there was allocation in fact by a person having the requisite authority to order that allocation. In our view, although such allocation woo factually not possible on the very first day of a year but allocation on a later day should be treated as effective from that da.y in view of the fact that the division of undistributed profits became effective from that day.\n\nIn this view of the matter, we are of opinion that the High Court had come to the correct conclusion and the appeal should be dismissed. The appella.nt will pay the costs of the respondent.\n\nK.B.N.\n\nAp; Jeal dismissed.\n\n(1) 32 I.T.R. 237.", "total_entities": 28, "entities": [{"text": "A\n\nBANGAWRE\n\nTHE MYSORE ELECTWCAL INDUSTIUES LTD", "label": "RESPONDENT", "start_char": 37, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "THE MYSORE ELECTRICAL INDUSTRIES LTD", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 126, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "P. 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ETC.\n\nApril 27, 1971 (J. M. SHELAT, A. N. GROVER AND I. D. DuA, JJ.J Andhra State Act (30 of 1953) and States Reorganisation Act, 1956- Parts of Madras State made part of Mysore State-Laws in Madras State made applicable to Bel/ary area and Madras Area-Mysore Adaptation of Laws Order 1956, and Mysore General Clauses Act, 1899-'Madras Area', whaJ is.\n\nAs a result of the Andbra State Act, 1953 a part of the Bellary district of Madras became part of the former State of Mysore, and as a result of the State Re-organisation Act, 1956 a psrt of the South Kanara district of Madras became part of the Mysore State. Under sections in those two Acts providing for the continuance of laws, s. II of tho Madras Commercial Crops Market Act, 1933, as it stood before its amendment in 1955 by the Madras Legislature, was in force in tho Bellary area of the Mysore State, and the . section as amended in 1955, was in force in the South Kanara area.\n\nSection 11(1), before its omondmont in 1955, empowered a Market Committee to levy fees, but after amendment, the levy was a eess by way of sales tax in addition to tho sales tax levied under tho Madras General Salos Tax Act. Even though no notification, as required by the section, was issued by tho Government of Madras, tho South Kanara Market Committee was levying tho coss and continued to do so after the area became a part of Mysore. In order to validate the levy and to enable the Committee to continue the levy, tho Madras Commercial Crops (Mysore Amendment and Validation of Levy of Coss) Act was psssod by the Mysore Legislature in 1958. By the Mysore Amendment Act, a now section 11(1) was substituted for tho s. 11(1) as in force in the Madras area. This new sub-section also empowered tho levy of cess by way of sales tax, in addi lion to the sales tax under the general sales tax law.\n\nThe respondents were served a notice by the Secretary of the Bellary Market Committee to pay cess on groundnut seeds bought or sold in the notified area of the committee in the Bellary area of Mysore. As the respondents failed to comply with the demands, complaints were filed against them. The respondents filed petitions under Art. 226 of the Constitution challenging the validity of the levy and the High Court quashed the demand on the ground that what was being demanded was payment of sales-tax and since the maximum rate authorised by s. lS of the Central Sales Tax Act, 1956, read with s. 5(4) of the Mysore Sales Tax Act, 1957, had already been imposed, the Market Committee could not make a further levy.\n\nIn appeal to this Court,\n\nHELD: (I) Section 11(1) as substituted by the Mysore Legishture in 1958, did not apply to the Bellary area and was confined only to th• 'Madras area', which meant, that part of the South Kanara district which became part of the Mysore State, because, H\n\n(a) The statement of objects and reasons of the Mysore Amenrricnt shows that the changes in law and the validation provisions v,.ere co:i.fint:'d only to the levy of a cess by way of sales-tax by the South Kanara Market Committee.\n\n(b) The Mysore Amendment was made applicable only to the 'Madras area' and this area could have reference only to the South Kanara area of the Mysore State, since: (i) By the Mysore Adaptation of Laws Order, 1956, read with s. 7(1) of the States Re-organisation Act, 'Madras area' under the Mysore General Clauses Act, 1899 (applicable to Mysore Act) means, the South Kanara area of the Mysore State; and (ii) it would be stretching language too far to include in the expression, 'Bellary area' what bad ceased to be a part of the Madras State in 1953, long before the Mysore Amendment in 1958.\n\n(c) In s. 154 of the Mysore Agricultural Produce Marketing (Regulation) Act, 1966, it is stated that the Madras Commercial Crops Market Act as in force in the Bellary district, and the same Act as in force in the Madras area was being repealed, showing that the 'Bellary ara was not\\ the same as the 'Madras area' of the Mysore State.\n\n(d) The Mysore Amendment Act specifies the rates of only two commodities, namely, arecanut and coconut in the 'Madras area' and these two commodities figure as the principal commercial crops in the bye laws of the South Kanara Markel Committee, whereas they are not included as commercial crops in the bye laws of the Bellary Market Committee at all.\n\n(532A-533D]\n\n(2) If the Mysore Amendment Act, 1958, did not apply to the Bellary area, s. 11(1) of the Madras Commercial Crops Markets Act as it originally stood before its amendment in 1955 by the Madras Legislature was applicable. and under that provision only a fee and not tax could be levied.\n\nTherefore, even though the demand in the present case employed the word\n\n'<••ss', it referred only to a 'fee', and not to tax. [S33E]\n\n{The matter was remitted to the High Court for determining tho validity and legality of the levy as 'fee' in relation to the services rendered.]\n\nCivu. APPELLATE JURISDICTION : Civil Appeal Nos. 1827 to 1830 of 1968.\n\nAppeals from the judgments and orders dated August 22, 23, 1967, and August 23, 1967 of the Mysore High Court in writ petitions Nos. 1967 of 1966, and 1968, 1969 and 2388 of 1966.\n\nShyam/ad Pappu, M. S. Ganesh and S. P. Nayar, for the appellants (in all the a.ppeals).\n\nS. V. Gupte and A. V. Rangam, for respondent no. 1 (in all the appeals.)\n\nThe Judgment of the Court was delivered by\n\nGrover, 1.-These ppeals by certificate arise from a judgement of the Mysore High Court delivered in certain petitions filed under Art. 226 of the Constitution challenging the demand of a cess levied in exercise of the powers conferred by s. ! l(J) of the Madras Commercial Crops Market Act 1933-hereinafter H called the 'Act'-the provisions of which were a.pplicable to the Bellary district of the State of Mysore.\n\nSUPRBME COURT RBPORTS [1971] SUPP. s.c.R.\n\nThe respondents were served a notke by the Secretary of the Bellary Market Committee established under the Act to pay the cess on groundnut seeds bought or sold in the notified area of the Committee. As the respondents failed to comply with the demand complaints were filed against them for con travention of s. ll (!) of the Act and of certain rules and byelaws framed thereunder.\n\nThe respondents filed petitions under Art. 226 of the Constitution challenging the validity of the levy of cess.\n\nThe High Court quashed the demand on the ground that what was being really demanded was the payment of safos tax and since the maximum rate of sales tax authorised by s. 15 of the Centra~ Sales Tax Act 1956 read with s. 5(4) of the Mysore Sales Tax Act 1957 had already been imposed the Market Com mittee could not make any further or additional levy. A direc· tion was also made for refund of the cess collected during a period of three yea.rs preceding the date of the presentation of the writ petition.\n\nFor the purpose of determination of the point~ which have been raised it is necessary to set out the background and the history of legislation insofar as it is relevant concerning Ballary district. By the Andhra State Act 1953 (Centra•l Act 30 of 1953) a part A State to be known as \"Andhra\" came into eXistence.\n\nBy s. 4 of that Act there was added to the State of Mysore the territory which immediately before the appointed WM comprised in the Taluks of Bellary district other than Alur, Adoni and Rayadrug in the Sta.te of Mysore and the said territories thereupon ceased to form part of the State of Madras.\n\nBy virtue of s. 53 of the Central Act 30 of 1953 all laws which were in force immediately before the appointed day in the territories which became a. part of the State of Mysore were to continue to be in force until otherwise provided by the legislature of that State.\n\nThe Act became applicable to that area of the Bellary district which became a part of the Sta, te of Mysore.\n\nSection ll (!) of the Act as it originally stood empowered the Market Committee to levy fees subject to such rules as might be made on the notified commercial crop or crops brought and sold in the notified area at such rates M it might determine. In certain decisions of the Madras High Court the view was expressed that the fee levied under s. ll (!) as it originally stood was not for services rendered h1t was really a mx levied for raising funds for constructing the market. With a view to avoid the legality of the levy being questioned the Madras legislature amended s. 11(1) by Madras Act 33 of 1955. It was sta, ted in the objects and reasons of the Bill, which was introduced in the legislative assembly of that State, that it was proposed to make it clear that the levy was a cess by way of sa.les tax and that it was in addition to the sales tax levied\n\nMTSOJ.i v. P. v. SBITY (Grover,/.)\n\nunder the Madras General Sales Tax Act 1939 and was ali!O subject to the provisions of Article 286 of the Constitution.\n\nThe following sub-i; ection was substituted for sub-s. (J) of s. 11 of the Act:\n\n\"Notwithstanding anything contained in the Madras Genera.I Sales Tax Act, 1939 (Madras Act IX of 1939), the Market Committee shall subject to such rules as cay be made in this behalf, levy a cess by way of sales :ax\n\non any commercial crop bought and sold in the notified area a, t such rates as the State Government may, by noci\n\nfication, determine.\n\nExplanation .................. \" Since that part of Bellary district which had bnen included in the Mysore State by virtue of the Central Act 30 of 1953 was no longer a part of the State of Madras the above amendment made in 1955 did not apply there.\n\nThe amended section, however, was applicable to South Kanara district which then formed part of the State of Madras. By the States Reorgamisatiorr Act 1956 the district of South Kanara. with the exception of the Taluk of Kollegal and certain other areas became part of the new State of Mysore. Section 7(a) of that Act conta.ined a provision similar to s. 53 of the Central Act 30 of 1953. The laws operating in the State of Madras became applicable to areas which were formerly in that State. Thus s. 11 of the Act, as amended, in the year 1955 by the legislature of the State of Madras continued to apply to the South Kanara district of the State of Mysore.\n\nThe situation on that date was tha.t in the district of Bellary which became part of the former State of Mysore s. 11 of the Act was in force 3'! it stood before its amendment in 1955 by the Madras legislature. But s. 11, a1< amended, was in force in the district of South Kanara.\n\nIn 1958 a Bill was introduced in the Mysore Legislature to amend the Act as in force in the Madras area. In the sta, tement of objects and reasons it was mentioned that s. 11 of the Act, as amended .by the Madras Legislature in 1955 a.nd as in force in South Kanara district, empowered the South Kanara Market Committee to levy a cess by way of sales ta.x on any commer cial crop bought and !!Old in the notified area at such rates as\n\nthe Government might determine.\n\nNo notification as contemplated by the section was issued by the Government of the erstwhile State of Madras and the Market Committee continued to levy a cess at the same rate as it was levying prior to the amend ment.\n\nIn the decision of the Madras High Court it had been held that the levy of cess was invalid as no. otificMion had ben is>ued by the State Government.\n\nThe validity of the collcet1on of the fee prior to the amendment Act ol 1955 had also been\n\n34-1 S.C. lndia/71\n\n530 SUI'RBMB COURT REPOllTS\n\n(1971) SUPP. S.C.R..\n\nA questioned. It was, therefore, necessary to validate the levy and collection of the cess already made and to amend the Act to enable the Committee to continue to levy the cess.\n\nPreviously an Ordinance had also been promulgated on account of the urgency of the matter. The Madras Commerdal Crops Market (Mysore Amendment and Validation of Levy of Cess) Act 1958 B received the assent of the Governor on November 30, 1958.\n\nBy s. 2 of this amending Act, s. 11 of the Act was amended. Subs. (!) as in force in the \"Madras area\" was substituted and was to be deemed to have been substituted with effect from November 23, 1955. This sub-section wa~ as follows:-\n\n\"(!) Notwithstanding anything contained in the C general sales tax law for the time being in force, the mairket committee shall levy a cess by way of sales tax on any commercial crop bought or sold in the notified area at th, e rates specified hereunder :-\n\n!. Arecanut\n\n2. Coconut.\"\n\nSection 4 validated the fee or cess collected or paid before the commencement of the amending Act of 1958.\n\nSection 120 of the States Reorganisation Act 1956 empowered the appropriate Government for the purpose of facilitating the application of any la.w in relation to any of the States formed or territorially altered to make, within the specified period, such adaptations and modifications of the law, whether by way. of repeal or amendment, 311 might be necessary or expedient and ievery such law was to have effect subject to the adaptation or .modification so made until altered, repealed or amended by the competent legislature or other competent authority.\n\nBy the Mysore Adaiptation of 'Laws Order 1956 \"Madras area\" was to mean the territory specified in clause (d) of sub-s. (I) of s. 7 of the States Reorganisation Act. According to that provision South Kanara district except Kasargod taluk and Amindivi islands and Kollegal Taluk in the State of Madras became a part of the State of Mysore. In other words according to the Adaptation of Laws Order the \"Madras area\" was to be confined to the above territories only. The Mysore General Clauses Act 1899, after the adaptations made, contained the definition of \"Madras area\" in clause 47 of s. 3 confining it to the territories specified in clause (d) of sub-s. (!) of s. 7 of the States Reorganisation Act 1956. This meant. that it did not include that part of Bellary district which had been incorporated in the State of Mysore by the Centrnl Act 30 of 1953.\n\nTherefore under s. 3 of the Mysore General Clauses Act in any of the Mysore Acts made\n\nMYSORE v. P. v. SEITY (Grover, J.) 531\n\nafter its commencement unless there was anything repugnant in A the subject or context \"Madras area\" was to mean the territory which was incorporaited in Mysore by the States Reorganisation Act 195'1 and which did not include the Bellary district with which we are concerned in the present appeals.\n\nThe Mysore Agricultural Produce Marketing (Regulation) 8 Act, 1966 (Mysore Act 27 of 1966) was published in the Mysore Gazette on September 15, 1966. S. 154 of that Act which relates to Repeal and Savings is as follows :-\n\n\"154. Repeal and savings.-(!) The Madras Commercial Crops Market Act, 1938 (Madras Act XX of\n\n1933) as in force in Bellary District, the Madras Comc mercial Crops Market Act. 1933 (Madras Act XX of 1933), as in force in the Madras Area .................. are hereby repealed.\"\n\nAs the impugned proceedings relate to levy in the Bellary district of the State of Mysore for the year prior to the enactment of the new Act of I 966 one of the main questions for determination is whether the amendment made in s. 11(1) by the amending Act of 1958 passed by the Mysore legislature was applicable to thait area or whether the amending provision was confined only to the \"Madras Area\" which meant the district of\n\nSouth Kanara with the exception of specified area which came to be incorporated ii\\ the State of Mysore in 1956. The High Court was of the opinion that the definition contaiined in clause 47 of s. 3 of the Mysore General Clauses Act of \"Madras Area\" which was limited to the South Kanara district with the exception of specified areas had to be disregarded while interpreting the expression \"Maidras Area\" occurring in the Mysore Amending Act of\n\n1958. It was held by the High Court that the \"Madras Area\" mentioned in the. Amending Act of 1958 m.ust also include that part of Bellary district which originally was a part of the State of\n\nMadrae but which came to be incorporated in Mysore State as a result of the Central Act 30 of 1953. ·\n\nIt may be observed at this stage that the attention of the High Court does not appear to have been drawn to several matters including s. 154 of the Mysore Act 27 of 1966.\n\nIndeed before us also these matters esc&ped the notice of the counsel until more information was obtained under our directions which necessitated a rehearing of the case. ·\n\nWe have no manner of doubt that the Bellary district which became a pad of the State of Mysore as a result of the Central Act 30 of 1953 was governed by s. 11 (!) of the Act as it stood at the time it had become applicable to that area by virtue\n\nliUPRBMB COURT UPORTS (1971] SUPP. s.c.R.\n\nof s. 53 of the aforesaid Central Act of 1953. The amendment made by the Mysore legislature in 1958 by which sub-s.(I) of s. 11 was substituted by a new section did not apply to the Bellary district and was confined only to the \"Madras Area\" which meant the district of South Kanara with the exception of specified areas.\n\nWe now proceed to give our rea•ons for coming to the above conclusion. (!) In the stakment of objects and reasons relating to the Madras Commercial Crops Markets (Mysore Amendment and Validation of Levy of Cess) Bill 1958 when it was introduced in the Mysore legislature there was mention only of the Act as amended by the Madras legislature in 1955 being in force in South Kanara district. The entire reading of the statement shows that whatever changes in law a, nd the validation provisions which were being made were confined only to the levy of a cess by way of sales tax by the South Kanara Market Committee. (2) The Amending Act of 1958 was made applica, ble only to what was called the \"Madras Area\". This area could haive reference only to the South Kanara district with the exception of the specified areas which was a, part of the State of Madras immediately before the States Reorganisation Act of 1956. It would be stretching the language too far to include in it the Bellary district which had ceased to be a part of the State of Madras much eairlier in 1953.\n\nThe adaptation made in the Mysore General Oauses Act 1899 by virtue of the provisions contained in the States Reorganisa-tion Act\n\n1956 defined \"Madras Area\" to mean the territory specified in clause (d) of sub-s. (I) of s. 7 of thait Act. That would, as stated before, comprise only the territory of South Kanara district witlt\n\nthe exception of specified a, reas. The reasoning of the High Court that the definition given in the General Clause' Act should not be applied to the expression \"Madras Area\" in the Amending Act of 1958 can by no means be sustained. (3) The distinction between what may be called the \"Bellary Area\" a.nd the \"Madras Area\" which came to be incorporated in the State of Mysore in 1953 and 1956 respectively is fully substantiated by s. 154 of the Mysore Act 27 of 1966. It is stated there in unambiguous language that the Act as in force in the Bellary district and is in force in the \"Madras Area\" was being repealed.\n\nIf \"Madras Area\" also included the Bellary district as is the view of the High Court there was no question of s. 154 being worded as it is, making it quite clear, thait the Act as applicable in Bellary district, was not the same as in force in the \"Madras Area\". (4) The bye-laws of the Bellary Market Committee which were framed in exercise of the powers conferred by s. 19 of the Act read with the Madras Cornmercfal Crops Market Rules 1948 give an indication that the Amending Act of 1958 was not applicable to the Bellary district.\n\nThese bye-laws were approved in May 1%0.\n\nUnder bye-law 19 the Market Committee could levy fee or cess 9n the notified crops or commoditie11 at the rates specified in the\n\nschedule. The schedule included cotton bales, loose cotton, kapas, groundnut seeds, groundnut pods and various other commodities.\n\nThe Amending Act of 1958 specified the rates of only two commodities Arecanut and Coconut. These are not to be found in the 5chedule of the bye-Jaws of the Bellary Market Committee.\n\nIn the bye-laws of the South Kanara Market Committee which came into force on July l, 1955 these two commodities, namely, Arecanut and Coconut are the principal, if not the only, commodi ties which figure. The suggestion which h~ been made at the bar and which does not seem to be without substa41ce is that in the South Kanara oistrict these are the only or the principal commodities which constitute commercial crops; whereas in the Bellary district there are other commodities mentioned in the bye-laws which do not include these two that constitute commercial crops.\n\nCertain notifications have also been produced which show that rice, paddy etc. were declared to be commercial crops for the purpose of the Act even in the \"Madras Area\". But the bye-laws as also the Amending Act of 1958 seem to show that Arccanut and Coconut arc the m3!in or the principal commodities in the\n\n\"Madras Area\" and these commodities, accordii\\g to the byelaws. are confined to South Kanara district and are not included a6 commercial crops in the Bellary district at all.\n\nOnce it is held that the Mysore Amending Act of .1958 did not apply to the Bellary district only fee could levied under s.\n\n11 (!) of the Act as it originally stood. Under bye-law 19 the rate specified for groundnut seeds was 9 paise per kilogram. The notice sent oy the Market Committee making the demand from the respondents employed the word \"cess\" but that cannot stand in the way of it being held that the demand related to a fee which alone could be levied under s. 11( I) of the Act. The finding of the High Court was that the cess demanded was a sales tax since it was levied under s. 11( 1) of the Act as amended by the Amending Act of 1958. It was observed that if it was not a tax the question that remained to be considered was whether the cess demanded was a fee and if so whether the levy of the fee was open to criticism that it was not cor-related to the services rcn dered.\n\nAs it has been determined by us that the demand by the Market 'Committee could be made lawfully only in respect of a fee the validity and legality of that levy will now have to be determined by the High Court. The distinction between a fee a.nd a tax is we! known and there are a series of decisions of this Court on what is a fee and wh\": ' . the tests which distinguish it from a tax.\n\nSee Delhi Cloth & General Mills Co. Ltd. v. Chief\n\nSUPl.BMJ COURT REPORTS (1971] SUPP. s.c.K.\n\nCommissioner, Delhi, & Others('). The High Court will no doubt afford the parties &11 opportunity of filing supplementary affidavits and documents, if necessary, for determining whether the levy made is a fee. After deciding that matter the writ petitions will have to be disposed of in accordance with law by the High Court.\n\nThe appeals are allowed accordingly and the cases are remitted to the High Court for disposal. The parties will bear their own costs in this Court.\n\nV.P.S.\n\nAppeals allowed.\n\nm-119701 2 S; c; 11.. 348.", "total_entities": 92, "entities": [{"text": "826\n\nSTATE OF MYSORE & ANR", "label": "PETITIONER", "start_char": 1, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE & ANR", "offset_not_found": false}}, {"text": "PENDAKUR VIRUPANNA SETTY & SONS & ANR. ETC", "label": "RESPONDENT", "start_char": 35, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "PENDAKUR VIRUPANNA SETTY & SONS & ANR. ETC", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 99, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "A. N. 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had been incorporated in the State of Mysore by the Centrnl Act"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 14081, "end_char": 14100, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mysore by the States Reorganisation Act", "label": "STATUTE", "start_char": 14327, "end_char": 14366, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 154", "label": "PROVISION", "start_char": 14623, "end_char": 14629, "source": "regex", "metadata": {"linked_statute_text": "Mysore by the States Reorganisation Act", "statute": "Mysore by the States Reorganisation Act"}}, {"text": "Madras Commercial Crops Market Act, 1938", "label": "STATUTE", "start_char": 14730, "end_char": 14770, "source": "regex", "metadata": {}}, {"text": "Madras Act XX of", "label": "STATUTE", "start_char": 14772, "end_char": 14788, "source": "regex", "metadata": {}}, {"text": "Madras Act XX of 1933", "label": "STATUTE", "start_char": 14877, "end_char": 14898, "source": "regex", "metadata": {}}, {"text": "s. 11(1)", "label": "PROVISION", "start_char": 15201, "end_char": 15209, "source": "regex", "metadata": {"linked_statute_text": "Madras Act XX of 1933", "statute": "Madras Act XX of 1933"}}, {"text": "clause 47", "label": "PROVISION", "start_char": 15583, "end_char": 15592, "source": "regex", "metadata": {"linked_statute_text": "Madras Act XX of 1933", "statute": "Madras Act XX of 1933"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 15596, "end_char": 15600, "source": "regex", "metadata": {"linked_statute_text": "Madras Act XX of 1933", "statute": "Madras Act XX of 1933"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 15615, "end_char": 15634, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madrae but which came to be incorporated in Mysore State as a result of the Central Act", "label": "STATUTE", "start_char": 16041, "end_char": 16128, "source": "regex", "metadata": {}}, {"text": "s. 154", "label": "PROVISION", "start_char": 16278, "end_char": 16284, "source": "regex", "metadata": {"linked_statute_text": "Bellary district which originally was a part of the State of\n\nMadrae but which came to be incorporated in Mysore State as a result of the Central Act", "statute": "Bellary district which originally was a part of the State of\n\nMadrae but which came to be incorporated in Mysore State as a result of the Central Act"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 16643, "end_char": 16648, "source": "regex", "metadata": {"linked_statute_text": "We have no manner of doubt that the Bellary district which became a pad of the State of Mysore as a result of the Central Act", "statute": "We have no manner of doubt that the Bellary district which became a pad of the State of Mysore as a result of the Central Act"}}, {"text": "s. 53", "label": "PROVISION", "start_char": 16783, "end_char": 16788, "source": "regex", "metadata": {"linked_statute_text": "We have no manner of doubt that the Bellary district which became a pad of the State of Mysore as a result of the Central Act", "statute": "We have no manner of doubt that the Bellary district which became a pad of the State of Mysore as a result of the Central Act"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 16902, "end_char": 16907, "source": "regex", "metadata": {"linked_statute_text": "We have no manner of doubt that the Bellary district which became a pad of the State of Mysore as a result of the Central Act", "statute": "We have no manner of doubt that the Bellary district which became a pad of the State of Mysore as a result of the Central Act"}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 17984, "end_char": 18009, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "adaptation made in the Mysore General Oauses Act 1899", "label": "STATUTE", "start_char": 18182, "end_char": 18235, "source": "regex", "metadata": {}}, {"text": "States Reorganisa-tion Act", "label": "STATUTE", "start_char": 18281, "end_char": 18307, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 18399, "end_char": 18403, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisa-tion Act\n\n1956", "statute": "the States Reorganisa-tion Act\n\n1956"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 18939, "end_char": 18945, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisa-tion Act\n\n1956", "statute": "the States Reorganisa-tion Act\n\n1956"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 19236, "end_char": 19242, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisa-tion Act\n\n1956", "statute": "the States Reorganisa-tion Act\n\n1956"}}, {"text": "s. 19", "label": "PROVISION", "start_char": 19495, "end_char": 19500, "source": "regex", "metadata": {"statute": null}}, {"text": "Act read with the Madras Cornmercfal Crops Market Rules 1948", "label": "STATUTE", "start_char": 19508, "end_char": 19568, "source": "regex", "metadata": {}}, {"text": "bye-laws as also the Amending Act", "label": "STATUTE", "start_char": 20899, "end_char": 20932, "source": "regex", "metadata": {}}, {"text": "Once it is held that the Mysore Amending Act", "label": "STATUTE", "start_char": 21207, "end_char": 21251, "source": "regex", "metadata": {}}, {"text": "s.\n\n11", "label": "PROVISION", "start_char": 21327, "end_char": 21333, "source": "regex", "metadata": {"linked_statute_text": "Once it is held that the Mysore Amending Act", "statute": "Once it is held that the Mysore Amending Act"}}, {"text": "s. 11( I)", "label": "PROVISION", "start_char": 21676, "end_char": 21685, "source": "regex", "metadata": {"linked_statute_text": "Once it is held that the Mysore Amending Act", "statute": "Once it is held that the Mysore Amending Act"}}, {"text": "s. 11( 1)", "label": "PROVISION", "start_char": 21797, "end_char": 21806, "source": "regex", "metadata": {"linked_statute_text": "Once it is held that the Mysore Amending Act", "statute": "Once it is held that the Mysore Amending Act"}}]} {"document_id": "1971_1_535_539_EN", "year": 1971, "text": "BASAPPA RUDRAPPA BETGERI & ORS.\n\nBUBLI DHARWAR MUNICIPAL CORPORATION\n\nApril 27, 1971\n\n[J. M. SHBLAT, I. D. DUA AND V. BHAR.GAVA, JJ.] Bombay Municipal Boroughs A.ct, 1925, ss. 73, 85-Levy of house tax by municipality on lessees of buildings owned by municipality-Validity of levy.\n\nThe respondent Corporation was originally constituted as a Borough under the Bombay Municipal Boroughs Act, 1925 having been converted into a Corporation in 1962. The Borough owned several buildings in the area of its jurisdiction and some of these were given on lease to the ap-- pellants in 1953. The leases were renewed in 1955. Neither in the original leases nor in the fresh leases was there any mention of the liability of tho tenants to pay the house tax.\n\nSubsequent to the execution of the fresh leases hills were received from the responden~ by the appellants calling upon them to pay the house tax imposed in respect of the buildings belonging to the respondent which were on lease with the appellants. The appellants filed a suit challenging the legality of the imposition of this house tax.\n\nThe main ground taken was that the Municipality could not impose a house tax on buildings owned by itself. The trial court held that the respondent was not competent to levy from the tenants any sum in excess of the agreed rents and that in the circumstances of this case notice under s. 206-A of the Act was not necessary. The Additional District Judge in appeal agreed that the levy was not valid but held the suit not to be maintainable for want of a notice under s. 206-A. The High Court in second appeal held that the levy was valid and that a notice under s. 206A was necessary. In appeal by special leave to this Court,\n\nHELD: There is nothing in the scheme of the Act to indicate that buildings belonging to the municipality itself cannot be subjected to tho house-tax which can be imposed under s. 73 of the Act. The language of s. 85 specifically envisages imposition of such a tax on buildings belonging to tho municipality. It clearly lays down that such a tax shall be loviable primarily from the actual occupier of tho property oli -which the tax is assessed, even if he holds it on a lease from tho municipality. The fixation of such respon&ibility primarily on the occupier holding a building on lease from the municipality could only be laid down on the basis that tho buildings owned by tho municipality can be subjected to the tax. Once the tax is imposed on such a buildins it would be payable by the occupier if he holds it as a lessee of tho municipality, There is nothing anomalous in such taxation because tho tax is not levied by the municipality on itself but OL the lessee.\n\n[On tho above view the court did not find it necessary to decide whetbtr before tho filing of tho suit by the appellants a notice undeJ ._ 206-A of the Act was necessary.]\n\nCrvn. APPBLLATE JUKJSDICTION : Civil Appeal No. 2206 of 1966 ..\n\nAppea.I by ~_leave frOIJI !he iudPlent and order dated February 23, 1966 of lhe Mysore High Court in Second Appeal\n\nNo. 888 of 1961.\n\n536 SUPl\\EME COURT REPOJ.TS\n\n(197!) SUPP. S.C.R.\n\nA S. V. Gupte, Naunit Lal S. S. Khanduja and Swar1111jit Sodhi for the appellants.\n\nK. R. Chaudhuri, for the respondent\n\nThe Judgment of the Court was delivered by\n\nBhargan, J.-This appeal by special leave arises out of a suit challenging the validity of imposition of house-tax and notices issued for realisation of that tax from the appellants. The respondent, the Hubli Dharwar Municipal Corpor&tion. was originally constituted as a Borough under the Bombay Municipal Boroughs Act, 1925 (hereinafter referred to as \"the Act\"). At the relevant time, when the disputes leading to the suit arose, it was still a Borough, but it became a Corporation subsequently in the year\n\n1962. The Borough owned several buildings in Dharwar. Some of these buildings were given on leases, to the appellants. These leases were executed in favour of the appellants by the Borough some time in March and April, 1953. Thereafter, by a General Committee Resolution No. 36 dated 29th June, 1953, the Borough decided to recover house-tax and other municipal taxes from the private individuals who were telllllnts of the municipal buildings leased out to them. In pursuance of this Resolution, a notice was issued by the President of the Borough that all the citizens in occupation of the buildings owned by the Municipality must pay the taxes assessed on them in respect of the premises under their occupation.\n\nOn 9th September, 1953, the appel!a.nts preferred joint objections against the levy of the house-tax and its realisa .. tion from them.\n\nOn 9th September, 1954, the Government of Bombay sanctioned the amendment to the then existing Housetax Rules framed under the Act in respect of this Borough, and the General Committee p315sed a Resolution on the 19th February. 1955 sanctioning the levy of taxes on Municipal owned buildings, adopting the sanctioned taxes, and bringing them into force with effect from !st April, 1955 by giving necessary public notice as required by law. Notice under section 77 was published on 25th February, 1955 and then the taxes came into forct on !st April,\n\n1955. Thereafter, fresh lease-deeds were executed by the respondent in favour of the appellants on 11th May, 1955. It may be mentioned that, neither in the original leases of 1953, nor in the fresh leases of 1955, was there &ny mention about liability of the tenants to pay the house-tax. Subsequent to the execution of these fresh leases, bills were received from the respondent by the appellants calling upon them to pay the house-tax imposed in respect of the buildings belonging to the respondent which were on lease with the appellants. The appellants, thereafter, filed the suit, out of which the present appeal has arisen, challenging the legality of the imposition of the tax. The main ground taken was that the\n\nB. R. BBTOBRI v. KUNIC. CORP. (Bluzrgava, J.)\n\nMunicipality could not impose 81 house-tax on buildings owned by itself, so that the imposition of this house-tax was invalid in law.\n\nThe suit was resisted on the plea that it was a valid taxation. A further defence was taken that the suit waa bad for failure on the\n\npart of the appellants to give notice to the respondent under section 206-A of the Act. \"The trial Court decreed the suit, holding that the respondent was not legally competent to levy from the tenants, any sum in excess of the agreed rents, and the bills issued for recovery of excess were not valid and that, in the circumillbnces of this case, notice under s. 206-A of the Act was not necessary. On appeal, the Ilnd Additional District Judge agreed with the trial Court that the levy of the tax was not justified, but held that the suit without 81 proper notice under section 206; A of the Act was not maintainable. He, therefore, allowed the appeal and dismissed the suit with costs.\n\nOn second appeal, the High Court of Mxsore upheld the dismissal of the suit, but on both the grounds, viz., that the tax was validly levied, and that the suit wa~ not maintainable for want of proper notice under section 206-A of the Act. It is against this decision that the appellants have come up to this Court. It may be mentioned that the appellants sued the Borough in a representative capacity as representing all the tenants of buildings belonging to the Borough.\n\nLearned counsel for the appellants took us through the various provisions of the Act and relied on the scheme of the Act to urge that a Municipality could not tax its own buildings. The power to impose a tax on buildings is contained in section 73 of the Act, the relevant portion of which is as follows :-\n\n\"73. (I) Subject to any genera.I or special orders which the State Government may make in this behalf and to the provisions of sections 75 and 76 a. municipality may impose f aaree with learned. counsel for the appellants\n\n A that this scheme of the Act contams any indication that buildings belonging to the municipality itself cannot be subjected to the house-tax which can be imposed under section 73 of the Act. In fact, the language of section 85 specifically envisages imposition of such a tax on buildings belonging to the municipality. It clearly lays down tha.t such a tax shall be leviable primarily from the actual occupier of the property on which the tax is assessed, even if he holds it on. a lease from the municipality. The fixation of such responsibility primarily on the occupier holding a building on lease from the municipality could only be laid down on the\n\nbais that the buildings owned by the municipality can be subjected to the tax. Once the tax is imposed on such a building, it would be p:iyable by the cscupier if he holds it as a lessee of the municipality. The same principle applies in the case of buildings held on a lease from the Government. It may be noted that all Government buildings are not exempted from the tax. Only those buildings are exempted which are used solely for public purposes and are not used or intended to be used for purposes of profit.\n\nLearned counsel urged that it is anomalous that 81 municipality should be permitted to impose tax on buildings owned by itself.\n\nBut this argument loses sight of the fact that the tax is primarily payable by the occupier and not by the owner. The purpose of imposition of tax by 81 municipality on its own buildings is to ensure that it is paid by the lessees of those buildings. Of course, if the building is not on lease, the. imposition of the tax would •erve no purpose at all. That, however, wilI not make the imposition of tax _by the municipality on its own buildings invalid which imposition will be really effective whenever that building is given out on lease to any other person. In these circumstances, we fully agree with the High Court that the tax was validly imposed and the suit challenging its realisation from the appellants had tq fail. .\n\nIn view of our decision on the validity of the ~. the question whether a notice under section 206-A of the Act wlis necessary or not becomes immaterial. The appeal fails and is dismissed with costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 28, "entities": [{"text": "BASAPPA RUDRAPPA BETGERI & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "BASAPPA RUDRAPPA BETGERI & ORS", "offset_not_found": false}}, {"text": "BUBLI DHARWAR MUNICIPAL CORPORATION\n", "label": "RESPONDENT", "start_char": 33, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "HUBLI DHARWAR MUNICIPAL CORPORATION", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 101, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "ss. 73, 85", "label": "PROVISION", "start_char": 172, "end_char": 182, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206", "label": "PROVISION", "start_char": 1372, "end_char": 1378, "source": "regex", "metadata": {"linked_statute_text": "The respondent Corporation was originally constituted as a Borough under the Bombay Municipal Boroughs Act, 1925", "statute": "The respondent Corporation was originally constituted as a Borough under the Bombay Municipal Boroughs Act, 1925"}}, {"text": "s. 206", "label": "PROVISION", "start_char": 1554, "end_char": 1560, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206A", "label": "PROVISION", "start_char": 1649, "end_char": 1656, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73", "label": "PROVISION", "start_char": 1891, "end_char": 1896, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85", "label": "PROVISION", "start_char": 1925, "end_char": 1930, "source": "regex", "metadata": {"statute": null}}, {"text": "Borough under the Bombay Municipal Boroughs Act, 1925", "label": "STATUTE", "start_char": 3547, "end_char": 3600, "source": "regex", "metadata": {}}, {"text": "section 77", "label": "PROVISION", "start_char": 5092, "end_char": 5102, "source": "regex", "metadata": {"statute": null}}, {"text": "section 206", "label": "PROVISION", "start_char": 6289, "end_char": 6300, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206", "label": "PROVISION", "start_char": 6587, "end_char": 6593, "source": "regex", "metadata": {"statute": null}}, {"text": "section 206", "label": "PROVISION", "start_char": 6798, "end_char": 6809, "source": "regex", "metadata": {"statute": null}}, {"text": "section 206", "label": "PROVISION", "start_char": 7128, "end_char": 7139, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 7625, "end_char": 7635, "source": "regex", "metadata": {"linked_statute_text": "Learned counsel for the appellants took us through the various provisions of the Act and relied on the scheme of the Act", "statute": "Learned counsel for the appellants took us through the various provisions of the Act and relied on the scheme of the Act"}}, {"text": "sections 75 and 76", "label": "PROVISION", "start_char": 7823, "end_char": 7841, "source": "regex", "metadata": {"linked_statute_text": "Learned counsel for the appellants took us through the various provisions of the Act and relied on the scheme of the Act", "statute": "Learned counsel for the appellants took us through the various provisions of the Act and relied on the scheme of the Act"}}, {"text": "Section 74", "label": "PROVISION", "start_char": 8854, "end_char": 8864, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 75", "label": "PROVISION", "start_char": 9158, "end_char": 9168, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75(c)", "label": "PROVISION", "start_char": 9229, "end_char": 9237, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 9606, "end_char": 9616, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78", "label": "PROVISION", "start_char": 9719, "end_char": 9729, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 79", "label": "PROVISION", "start_char": 9882, "end_char": 9892, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 80", "label": "PROVISION", "start_char": 10117, "end_char": 10127, "source": "regex", "metadata": {"statute": null}}, {"text": "section 85", "label": "PROVISION", "start_char": 10473, "end_char": 10483, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 11466, "end_char": 11476, "source": "regex", "metadata": {"statute": null}}, {"text": "section 85", "label": "PROVISION", "start_char": 11514, "end_char": 11524, "source": "regex", "metadata": {"statute": null}}, {"text": "section 206", "label": "PROVISION", "start_char": 13414, "end_char": 13425, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_53_62_EN", "year": 1971, "text": "BABU LAL HARGOVINDAS\n\nSTATE OF GUJARAT\n\nMarch 18, 1971.\n\n1G. K. MITTER, K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.]\n\nFood Adulteration A.ct, 1954-Panch wit1u•ss adr11itting signatur'osecution under A.ct-1\\'ot necessary that authorisation should be by Co1n111issioner-J::.'fject of ss. 67(3) and 68(l}-Coniplai11t need not be in the 11a1ne of Corporatio11-R11/c 7(2) does not contravene ss. 13(1) and 23(1) (e) of Act anti is not ultra vires.\n\n1'he appellant was a dealer in milk. The Food Inspector purchased milk fron1 him for analysis and sealed it in three bottles one of whih was lclt with the dealer and one sent for analysis, the third being kept by the Inspector for production in court. The Public Analyst's report sho, ved that he had caused the sample to be analysed and that there was a deficiency of non-fatty solids in the san1ple. With the written consent of the I\\.1edical Officer of Health the Inspector filed a complaint under s. 16 of the Food Adulteration Act, 1954. Before the Magistrate the witness of the recovery of the sample admitted his signatures on the receipt fu. 5 and on the wrappers and labels of the bottles in \\vhich the sample was \"lealed but denied that he was present when the sample was obtained. He claimed that be had signed Ex 5 without reading it. The Magistrate relying oa the testimony of the Food Inspector convicted the appellant. The High -Court confirmed the conviction. Witb certificate under Art. 134(1) (c) of the Constitution appeal was filed in this Court.\n\nHELD: (I) Tho fact that tho panch witness refused lo support tho prosecution in regard to the recovery of milk from the appellant could not mean that s. 10(7) of the FoOuld not have been preserved for the Appellant to have taken the opportunity afforded to him by sub-section: (2) of Section 13 by\n\nSit\n\nSUPREME COURT RllPOR TS\n\n(1971J SUPP. S.C.R.\n\nsending it to the Director, Central Food Laboratory for a certificate.\n\nThirdly the Food Inspector who filed this complaint was not competent to file it because the Mical Officer of Health who gave written consent to file it was not validly authorised 3S required under Section 20(1) of the Act inasmuch as under the relevant provisions of the Bombay Provincial Municipal Corporation Act LIX of 1949 (hereinafter referred to as the 'Corporation Act') as applied to the State of Gujarat it was the Municipal Commissioner and not the Municipal Corporation that should have authorised the giving of written consent to prosecute.\n\nFourthly even if the Medical Officer of Health can be said to be validly authorised by resolution of the Municipal Corporation dated 17-10-55 the complaint is not in accordance with that resolution since the resolution authorised the filing of the complaint in the name of the Municipal Corporation but the complaint filed does not disclose that it is filed on behalf of the Corporation.\n\nLastly rule 7('}) of the Prevention of Food Adulteration Rules (hereinafter called the 'Rules') which permits the Public Analyst to cause the sample to be analysed is ultra-vires because it is beyond the scope of s.xxion ..!3(e) of the Adulteration Act Most of these contentions were urged before the learned Single Judge of the Gujarat High Court who in a lengthy Judgment held them to be untenable.\n\nIn our view also the submission of the learned Advocate for the Appel !ant are without force and must be rejected.\n\nIt may be observed that Section 10(7) of the Act originally required that the Food Inspector, when he takes action either under the provisions of sub-sections (!), (2), (4) or (6), to call as far as possible not less than two persons to be present at the time when' such action is taken and take their signatures but that provision was amended by Act 49 of 1964 and instead it was provided that the Food Inspector shall call one or more persons at the time when such action is taken and take his or their signatures.\n\nIt appears that the person who witnessed the taking and sealing of the sample did not support the Food Inspector's version that the signatures of this Panch witness were taken on the receipt Ex. 5 and on the label and wrappers of the bottles at the time when the samples were obtained.\n\nThe witness Rasulbhai who was serving in a Mill and also sits in the cycle shop of his brother which is adjoining to the milk shop of the Appellant, after he returns from his duty .stated that on the date in question at about 8 a.m. he was called by the Food Inspector as a Panch witness and that he signed on the two bottles of milk and wrappers also.\n\nWhen he was confronted with the signature on Ex. 5 he said that he had signed it without reading it The Food Inspector on the other hand asserted that he had in the presence of Panch witness corked, sealed, labelled and wrapped the bottles which were signed by the Panch twice on each\n\nBABU LAL HARGOVINDAS r. GUJARAT (Reddy J.)\n\nof the bottles one on the label and the other on the wrapper and thereafter the accused had passed a receipt to that effect which was attested by the Panch witness in the presence of the accused. The Trying Magistrate was not prepared to take the word of the Panch witne.ss that he had signed Ex. 5 without reading it or without\n\n•eeing the accused signlt\\.g the same and preferred the evidence of the Food Inspector, Before the High Court, none of the contentions raised before the Trial Magistrate namely that inasmuch as the Panch witness did not support .the prosecution that all the re- <1uirements of Section 10(7) of the Act were not complied with or that the paper sljps bearing signature of the Panch ought to .have been affixed on the bottles and in the absence of such paper\n\nseals there could have been tampering of the seals before they were .analysed. though raised were not pressed having regard w u decision of that Court in Man/ca Hari v. State of G11jarar,(').\n\nThe learned Advocate for the Appellant contends that though these point' were not pressed before the Gujarat High Court he is free to urge it before us. In the first place we do not think that having regard to the findings based on an appreciation of cviJence Of the Panch witness and the Food Inspector that the milk was bottled and sealed, signed and attested by the Panch witness in the presence of the accused as spoken to by the Food lnspecror can be challenged before us as those are findings of facts. ln the second place there is nothing to indicate that the provisions of sub-section (7) of Section 10 have not been complied with. Even otherwise in our view no question of the trial being vitiated for non-compliance of these provisions can arise.\n\nIt is I•Ot a rule of law that the evidence of the Food Inspector cannot he accept- .ed without corroboration.\n\nHe is not an accomplice nor is it similar to the one as in the case of Wills where the Jaw makes it imperative to examine an attesting witness under Section 68 of the Evidence Act to prove the execution of the Will.\n\nThe evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law.\n\nAt the most Courts of fact may find it difficult in any particular case to rely on the testilpony of , the Food Inspector alone though we do not say that this result generally follows.\n\nThe circumstances of each case will determine the extent of the weight to be given to the\n\nvidence of the Food Inspector and what in the opinion of the Court is the value of his testimony.\n\nThe provisions of Section l0(7)- are akin to those under Section I 03 of the Criminal Procedure Code when the premises of a citizen are searched by the Police. These provisions are enacted to safeguard against any possible allegations of excesses or resort to unfair n\\eans either by the Police Officers or by the Food Inspectors under the Act. This\n\n(I) 8 G. L. R. 588.\n\nSUPREMB COU&T l\\EPOllTS [1971] SUPP. s.c.&._\n\nbeing the object it is in the interests of the prosecuting authorities concerned to comply with the .provisions of the Act, the Ii.on compliance of which may in some cases result in their testimony being rejected. While this is so we are not to be understood as in any way minimising the need to comply with the aforesaid salutary provisions.\n\nIn this case however there is no jusuncation in the allegation that the provisions have not been complied with because the Panch witne8s had been called and his signatures taken which he admits.\n\nIn these circumstances the Courts werojustified in holding on the evidence of the Food Inspector that he had complied with the requirements and that the samples were seized in the presence of the Panch witness whose signatures Were taken in the presence of the accused.\n\nThere is also in our view no justification for holding that theaccused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because be made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the. sample had det~ riorated and could not be analysed.\n\nThe decision of this Court in Municipal Corporatio!I of Delhi v. Ghisa Ram(') has no appli cation to the facts of this case.\n\nIn that case the sample of the vendor had in fact been sent to the Director of the Central Food Laboratory on his.application but the Director had reported that the sample had become highly decomposed and could not analysed.\n\nIt is also evident from that case that the Food Inspector had not taken the precaution of adding the preservative. 1t appears from page 120 of the report that the elementary precau tion of adding preservative to the sample which was given to the.\n\nRespondent should necessarily have been taken by the Food Inspector, that if such precaution had been taken, the sample with the Respondent would have bee11 available for anlaysis bY the Director of the Central Food Laboratory and. since the valuable right given to the vendor by Section 13(2) could not~ availed of, the conviction was bad.\n\nNo such defence is available to the Appellant in this case beca~ not only is there evidence that the preservative formalin was added but the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory. . ·\n\nThe competence of the Food Inspector to file the complaint has been challenged oil the ground that the Medical Officer of Health who gave his written consent for filing it was not validlyauthorised by the Municipal Commissioner and that in any case. the complaint is not in accordance with the resolution of the Munit [1967] 2 S. C. R. 1(6.\n\nBABU LAL HAllOOVINDAS v. OUJAllAT (Reddy J.)\n\ncipal Corporation (hereinafter referred to as the 'Corporation') which authorised the filing of it in its name and not in the name of the Food Inspector. It appears the olution of the Corporatien of 17th October 1955 is in Gujarati but before the High Court the Advocates of the parties seem to have broadly agreed on the following translation : -\n\n\"Municipal Corporation Resolution No. 639 1955-S6 A. D., Shri Ramniklal Inamdac proposed seconded by Shri Shantilal Manila! that, in pursuance of the recommendation of the Standing Committee Resolution No. 1124, dated 13-10-1955 the Medical Officer of Health is authorised to accord written consent for filing complaints for the Municipal Corporation in accordance with Section 20 of the Prevention of Food Adulteration Act, 1954 (Central Act). On votes being taken the proposal was carried\".\n\nIt was however pointed out by the lawyer of the Corporation that the translation should read slightly differently to replace that part, after the words \"the Standing O:immittee resolution No. 1124 dated i3-10-1955\" by the words \"the authority of the Municipal Corporation to give written consent to file complaints under Section 20 of the Prevention of Food Adulteration Act is given to the Medical Officer\".\n\nIn whatever manner the resolution may be read it is clear that what it purports to do is to authorise the Medical Officer of Health persuant to the powers vested in the Corporation as a local authority under Section 20(1) of the Act to have his written consent.\n\nThe provisions of Section 201 II are as follows : -\n\n\"20(1)-No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the Central Government or the State Government :>r a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority\".\n\n19.\n\nI).\n\nOn a reading of the above provision it is manifest that a prosecution can be instituted either by the local authority or by a G person authorised by it in that behalf by general or special order.\n\nThe resolution therefore was in accord with the power vested by Section 20(1) of the Act by which the Corporation authorised the Medical Officer of Health to institute a prosecution. It is however stated that under the Corporation Act it is the Municipal Commissioner who is.the authority empowered to Act for the Cor-\n\n. H poration and authorise any person to institute proseclltion under the Act, and since the Medical Officer of Health was not so authorised by the Commi8Sioner, the prosecution against the Appellant\n\nSUPREME COURT REPORTS [1971) SUPP. s.c.R.\n\nis invalid.\n\nThis contention is based on the provisions of Sections 67 & 68 of the Corporation Act under which it is claimed that it is the Commissioner who is empowered to exercise the functions of the Corporation, as such it is his authorisation that is required to satisfy the conditions prescribed in Section 20(1) of the Act for the institution of a prosecution under that Act.\n\nWe do not however read the provisions of the Corporation Act referred to as pressed upon us.\n\nIt is undisputed that under subsection (2) of Section 67 the Municipal Government rests in the Corporation unless of course lliere is any express provision which provides otherwise.\n\nThere is no doubt that the Corporation Act specifically prescribes the respective functions of the several Munidpal authorities as constituted under Section 4 but it no-where relegates the Corporation to a subordinate position or makes it subservient to the Commissioner.\n\nIn Section 67(3) upon which reliance is placed, the duties and powers of the Commissioner are made expressly subject to the approval and sanction of the Cocporation as also subject to all other restrictions limitations and conditions imposed by the Corporation Act or any other Act for the time being in force.\n\nThe duties and powers of the Commissioner. be it noted, are in respect of the carrying out of the provisions of the Corporation Act and of any other Act for the time being in force which imposes any duty or confers any power on the Corporation.\n\nThis sub-section is dealing with the exercise of the executive power by the Commissioner which is subject tQ limitations.\n\nOn no interpretation is it possible to hold that the Municipal administration vests solely in the Commissioner or that any function to be discharged by the Corporation can only be discjmrged by the Commissioner and no one else.\n\nThe scheme of the Corporation Act leaves no doubt that there 1re many instances where Corporation alone has to discharge the functions such as the appointment of certain officers under Sections 45. 53 and 58 or the discharging by it of the obligatory and discretionary duties under Sections 63 to 66.\n\nSection 68(1) empowers the Commissioner to perform or exercise any powers', duties and functions conferred or imposed upon or vested in the Corporation by any other law for the time being in force subject to the provisions of such law and to such restrictions limitations and conditions as the Corporation may impose.\n\nA combined reading of these two provisions clearly indicates that the Commissioner cannot exercise these functions withoot any fetters as if he is the Corporation.\n\nThe Corporation is the controlling authority and can restrict limit or impose conditio1111 on the Commissioner in the exercise of any of the powers envisaged in either under Section 67(3) or under Section 68(1).\n\nThero\n\nBABU LAL HARGOVINDAS v. GUJARAT (Reddy J.)\n\nis no gainsaying that the Commissioner can. function under ec tion 68(1) subject to the control of the Corporation as also sub1ect to the provisions of the law under which the powers are conferred.\n\nThe power to restrict limit or impose conditions being vested in the Corporation, it has the final voice in determining whether the Commissioner' or any other person will discharge those functions envisaged therein.\n\nThat apart Section 20(11 of the Act itself places no restrictions on the Corporation to circumscribe the powers of the Commissioner. It therefore follows that if a discretion is vested in the Corporation either to give its written consent in which case the Commissioner could subject to such limitation as may be imposed by the Corporation under sction 68(1) exercise the function or to authorise any other person by general or special order to give his written consent to institute prosecution under the Act.\n\nThe Corporation in either view is not fettered to em power the Medical Officer of Health to give his written consent in appropriate cases to institute prosecutions under the Act, which in fact is what he did.\n\nAll that the Medical Officer of Health is required to do is to give his written consent to institute the prosecution. There is no validity in the contention that the complaint should be in the name of the Corporation. As pointed out by this Court in the State of Bombay v. Parshottam Kanaiyalal,(') Section 20(1) does not in terms prescribe that the complainant shall he named in the written consent.\n\nIt merely provides that the complaint should be filed either, by a named or specified authority, or with the wiitten consent of such authority.\n\nWhile the implication that before. granting a written consent the autho.rity competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that prima fade case exists for the alleged offender being put up before a Court, is reasonable, the further implication that the complainant must be named in the written consent or that the name of the Municipal Corporation should appear in the complaint, has no basis.\n\nIn our view, therefore, there is no defect in the procedure followed while lodging the complaint against the appellant.\n\nLastly, it was faintly urged that Rule 7(2) of the Rules is ultra vires the Act.\n\nIt is contended that this Rule gives scope for the Public Analyst to cause the samples to be analysed by persons under him, viz., the Chemical Examiner, instead of himself analysing them, which is contrary to the express mandate of sub-section (!) of Section 13 and is beyond the scope of Section 23(l)(e) of the Act.\n\nThis provision, according to the learned Advocate, requires the Public Analyst to analyse the sample of any article of food submitted to him for analysis, while :he rule\n\n(l) [1961! I S. C.R. 45R.\n\nSUPRl!ME COUil T llEPOll TS [1971] SUPP. s.c.ll.\n\ngives scope to him to cause it to be analysed by others which is beyond the scope of Section 23(1)(e). It is apparent from 1 reading of Section 13(1) that what is requires is that the repon. by the Public Analyst shall be in the prescribed form and that the same should be delivered to the Food Inspector. There is nothing to warrant the submission that the Public Analyst should himself ana.tyse the samples. Sub-rule (3) of Rule 7 is in conformity with\n\nlhis provision when it requires the Public Analyst. after the analysis has been completed, to send to the person concerned two copies of the report of such analysis in Form Ill within a period of sixty days of the receipt of the sample.\n\nAll that the Public Analyst is reqnired under sub-rule 1 of Rule 7 on receipt of a package containing a sample for analysis from a Food Inspector or any other pesron is to compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon, or authorise someone else to do it.\n\nWe can find no inconsistency between !he provisions of Rule 7, and those of Section 13(1) as to hold that the Rule is in excess of what is prescribed by the Section, nor is there any justification for holding that the rule is beyond the scope of the rule-making power under Section 23(1) (e), which .empowers the Central Government, after consultation with the Committee to define the qualifications, powers and duties of the Food Inspectors and Public Analysts. Rule 7 does no more than prescribe the duties of the Public Analyst, in which will fall the duty to have the sampels analysed. The qualifications of the Public Analyst are, however, prescribed jn Rule 6, which shows that he is a person duly qualified, so that he is competent to have the samples analysed in his laboratory by qualified subordinates and under his supervision, which is what is implied in the requirement that he should give a report in the form prescribed.\n\nRule 7 (2) does not preclude the Public Analyst from himself analysing the samples, as indeed a perusal of Form III would show that he certifies as follows : \"I further certify that I have/have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows\" : Whether the Public Analyst analyses the sample himself or causes it to be analysed, there is no doubt that he had to >'Ub&.\"Tibe to a declaration in respect of the result of the analysis and has further to give his opinion thereon which can only be done, if at some stage or other he takes part in the analysis either by himself analysing or checking the results of the analysis with the assistance of his subordinates.\n\nIn the light of the views expressed by us on the several contention raised before us, the appeal fails and is accordingly dismissed.\n\nG. C.\n\nAppeal dimilsMd.", "total_entities": 60, "entities": [{"text": "BABU LAL HARGOVINDAS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "BABU LAL HARGOVINDAS", "offset_not_found": false}}, {"text": "STATE OF GUJARAT", "label": "RESPONDENT", "start_char": 22, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT", "offset_not_found": false}}, {"text": "1G. K. MITTER", "label": "JUDGE", "start_char": 57, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER*", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 72, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "P. 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R. 1", "label": "CASE_CITATION", "start_char": 18032, "end_char": 18051, "source": "regex", "metadata": {}}, {"text": "S6", "label": "PROVISION", "start_char": 18498, "end_char": 18500, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20", "label": "PROVISION", "start_char": 18821, "end_char": 18831, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 18839, "end_char": 18880, "source": "regex", "metadata": {}}, {"text": "Section 20", "label": "PROVISION", "start_char": 19266, "end_char": 19276, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "Section 20(1)", "label": "PROVISION", "start_char": 19563, "end_char": 19576, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "Section 201", "label": "PROVISION", "start_char": 19636, "end_char": 19647, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "Section 20(1)", "label": "PROVISION", "start_char": 20267, "end_char": 20280, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 67 & 68", "label": "PROVISION", "start_char": 20826, "end_char": 20842, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20(1)", "label": "PROVISION", "start_char": 21072, "end_char": 21085, "source": "regex", "metadata": {"statute": null}}, {"text": "do not however read the provisions of the Corporation Act", "label": "STATUTE", "start_char": 21154, "end_char": 21211, "source": "regex", "metadata": {}}, {"text": "Section 67", "label": "PROVISION", "start_char": 21291, "end_char": 21301, "source": "regex", "metadata": {"linked_statute_text": "We do not however read the provisions of the Corporation Act", "statute": "We do not however read the provisions of the Corporation Act"}}, {"text": "is no doubt that the Corporation Act", "label": "STATUTE", "start_char": 21434, "end_char": 21470, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 21577, "end_char": 21586, "source": "regex", "metadata": {"linked_statute_text": "There is no doubt that the Corporation Act", "statute": "There is no doubt that the Corporation Act"}}, {"text": "Section 67(3)", "label": "PROVISION", "start_char": 21704, "end_char": 21717, "source": "regex", "metadata": {"linked_statute_text": "There is no doubt that the Corporation Act", "statute": "There is no doubt that the Corporation Act"}}, {"text": "Sections 45", "label": "PROVISION", "start_char": 22796, "end_char": 22807, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 63 to 66", "label": "PROVISION", "start_char": 22893, "end_char": 22910, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 68(1)", "label": "PROVISION", "start_char": 22913, "end_char": 22926, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 67(3)", "label": "PROVISION", "start_char": 23571, "end_char": 23584, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 68(1)", "label": "PROVISION", "start_char": 23594, "end_char": 23607, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20(1)", "label": "PROVISION", "start_char": 25097, "end_char": 25110, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 26250, "end_char": 26260, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(l)(e)", "label": "PROVISION", "start_char": 26288, "end_char": 26304, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(1)(e)", "label": "PROVISION", "start_char": 26651, "end_char": 26667, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13(1)", "label": "PROVISION", "start_char": 26702, "end_char": 26715, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13(1)", "label": "PROVISION", "start_char": 27696, "end_char": 27709, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(1)", "label": "PROVISION", "start_char": 27894, "end_char": 27907, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_540_548_EN", "year": 1971, "text": "W(}RKMEN OF WILLIAM .JACKS .& CO. LTD.,\n\nMADRAS\n\n11.\n\nMANAGEMENT OF WILLIAM JACKS & CO. LID.,\n\nMADRAS\n\nApril 28, 1971\n\n(J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.J\n\nThe Payment of Bonus Act (21 of 1965), s. 23, Second Schedule, item 2(c) and Third Schedule, item (1)-A.dvance made by head office to branch office-Interest paid by branch offiu-lf deductible expenditure in calculating profit and loss of branch office-Provision for gratuity etc.-Diffe renee between provision and reserve-Provision when deductible-Deduc tible income tax calculated without taking into occoHnt bonus payable-If correct-Payment of Bonus (Amendment) Act (8 of 1969)-Effect of.\n\nThe appellant! workmen of the respondent claimed that for the two yean 196-4 and 1965 they were entitled to bonus at the maximum rate of 20% of their annual wages while the respondent contended that there was no available surplm and consequently the liability to pay bonus for these\n\ntwo years could not exceed the minimum of. 4% of the wages. The management, inter alia, claimed deductions: (1) with respect to interest charged by the London office on advances made by the London office to the respondent-branch during those two years; (2) provision for gratuity and other contingencies; and (3) income tax calculated without taking into account the bonus which would be payable to the workmen.\n\nThe Tribunal allowed the claim_s.\n\nIn appeal to this Court,\n\nHELD: (1) (a) The amounts claimed as interest are really payments by the 'branch of the company to its head office.\n\nA payment of interest could be justified only on the basis that the head office was a creditor and the branch office a debtor. But a company could not be a creditor and its own debtor simultaneously. The interest paid really represented\n\namount! of money transferred by the respondent-branch to the head office, and similarly, the advances made by London office to the respondent-branch were amounts which continue to be used by the company for its own business at a different place.\n\n[544F]\n\n(b) This is also made manifest by the proviso to item 1 of the Third Schedule to the Act. In the deduction of the current liabilities any amount shown as payable by a company to its head-office whether towards any advance made. by the bead-office or otherwise, or any interest paid by the company to its head-office is not to be treated as a deductible liability, because, the advance made by the head office is also treated as a part of the\n\ninvestment by the company. [5450]\n\n(c) Under s. 23 of the Payment of Bonus Act, 1965, there is a presumption as to the correctness of the statements and particulars contained in the balance-sheet and the profit and loss account of a company, if the accounts had been properly audited by qualified auditors. The presumption, however, is confined to the accuracy of the statements and particulars contained in the balance sheet and the profit and loss account.\n\nIf any item in the accounts is wrongly shown aS' expenditure, when on the face\n\nWOI.I:MEN l'. WILWW 1ACD .& CO. (B/targava, J.)\n\nof it it is not ao, the. court is not bound to hold that th~ method adoptee in preparing the accounta is correct simply beCause tho auditors raisc>d no\n\nobjection. [S44H-S4SCJ .\n\nTherefore, in the calculation of Jl'Oii pcofitl for purpoaes of bonus the sums deducted as interest for the two years must be added back since they were wrongly shown as deductible expenditure in calculating the profit and loa.\n\n(2) The provision for gratuity, and other contingencies such as furlough salary, passage, service and com.mission, in the present case, was made in respect of existing ond known liabilities, though, in some cases the exact amount could not be ascertained. It was not a case where it was an anticipated loss or anticipated expenditure which would arise in the future.\n\nSuob provision is, not a reserve at all and it could not be added back under item 2(c) of 'the Second Schedule to the Act. It was therefore rightly shown by the respondent as a deductible expenditure in calculating profit and loss. [5470]\n\nMetal Box Co. v. The Workmen, [1969] 1 S.C.R. 750, followed.\n\n(3) The calculation of the amount of income-tax shown as expenditure, without taking into account the bonus which would be payable to the workmen under the Act, was correctly done in accordance with the decision of D this Court in the Metal Bx Company ctJSe. In that case, the question was determined on the interpretation of 89, 6(c) and 7 of the Act, and the amendmentJ made by the Payment of Bonus (Amendment) Act, 1969 do not make any change in the law bearing on the question, as laid down by this Court. [547G]\n\nCML ~PBLLATE 1umsoicnoN : Civil Appeal No. 1700 of 1968.\n\nAppeal by special leave from the Award dated March 9, 1968 of the Industrial Tribunal. Madras in Industrial Dispute No. 11 of\n\n19~7.\n\nM. K. Ramamurthi, I. RQJtUJmurthy, Vineet Kumar and Shyamola Pappu, for the appellanti.\n\nM. C. Chagla and D. N. GupttJ for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBbargava, J.--This appeal by special leave is directed against an Award of the Industrial Tribunal, Madras, in a dispute relating to payment of bonus under the Payment of Bonus Act. 1965 (No. 21 of 1965) (hereinafter referred to as \"the Act\"). The respondent in the appeal is the employer, William Jacks & Co. Ltd .• Madras, while the appellant is the William Jacks & Co. Employees' Union, Madras. representing the workmen employed by the respondent. The appellant claimed that, for the two ca.lendar years 1964 and 1965, the workmen were entitled to bonus at the maximum rate of 20 per cent of their annual wages, while the respondent Co. put forward the case that there was no available\n\nSUPREME COURT RBPORT~;\n\n[1971] SUPP. S.C.R.\n\nsurplus and, consequently, the liability to pay bonus for these two years could not exceed the minimum of 4 per cent of the wages.\n\nIt may be mentioned that the respondent Co. is a Bench of Wi1liam Jacks & Co. Ltd. registered in England with its Head Office in London. It appears that in India this Company has three offices. One is in Calcutta which also functions at the Regional Head Office for aU the three Branches in India. The other two Branches are in Bombay and in Madras, the latter being the branch to which the dispute about bonUs 'elated. The Company is carrying business as engineers, manufadurers, representatives and general merchants. The business of the Company includes the buying of locally manufactred machinery and other products and selling them to both private and public sector industries. The income of the Company is derived primarily from the sa.le of imported and indigenous goods at a profit. In addition, the Branch at Madras earns commission credited by London Office on direct shipments from London to customers within the areas served by the Madras Bmnch, as well as commission on sale of indigenous products, repairs and servicing of equipment sold and by local purchase and sale. These features of the .business have been enu merated by us as they may have bea.ring on some of the questions raised in this appeal.\n\nDuring the hearing of the reference before the Tribunal, the Company filed its balance-sheets, profits, and loss account, and calculations of available sur:plus in accordance with the provisions of the Act and its schedules showing that there was no a.vailable surplus, so that bonus in excess of 4 per cent was not payable by it.\n\nThese. calculations were challenged on varioUs grounds before the Tribunal, but none of them was accepted and the Award was based on the calculations filed on behalf of the Company.\n\nIn this appea.l before us, learned counsel appearing on behalf of the appellant has challenged the calculations in respect of seven different items, and we proceed to deal with them in the order in which they were argued by him.\n\nThe first claim on behalf of the appellant was tha.t there should be an add back of an estimated sum of Rs. 40.000/-, which was received as direct commission paid by the manufacturers to the London Office for the benefit of the Bra.nch at Madras. in calculating the gross profits on the basis of which available surplus is to be worked out. On this point, the Tribunal tn tts award did not give any specific finding, though, after mentioning this argument raised before it, the Tribuna.l still proceeded to accept the Company's account disregarding this objection.\n\nThe only evidence on this point is found in the statement of the Company's witness, M. W. 1, Thiru S. S. Mani, who stated tha•t the direct commission received by this Company relating to this\n\nWORKMEN V. WILLIAM JACICS & CO. (Bhargava, J.)\n\nBranch is credited in the accounts of this Branch. The amount of commission received by the Company is included under the head \"Commission\" in the Profit <~nd Loss Account.\n\nIn 1964, the sum of Rs. 8,80,504/- and, in 1965, the sum of Rs. 7,46,391/- include the direct commission. According to his evidence, therefore, the direct commission has already been taken into :account in calculating the gross profits, and no question can :arise of ; my add back.\n\nThere is no cross-examination on this point on behalf of the appellent, nor has any evidence been led .by the appellant to show that the statement of this witness is incorrect. In the circumstances, this claim has to be rejected.\n\nThe second item cl&imed is add back in respect of handling charges which were included by the London Head Office in the 'invoices for goods sent to Madras.\n\nThe argument was that a proportionate amount of administrative (overhead) expenses of the Head Office in London allocable to the Madras Branch have :already been deducted as expenditure in accordance with item 6(e) of the secoRd Schedule to the Act, and the further debit of the handling charges amounted to double deduction. This argument proceeds on the basis th&t handling charges, which are in eluded by the London Head Office in the various invoices, form part of the administrative (overhead) expenses of that office.\n\nThere is no justification for such an assumption. The only evi- , dence on this point is again that of M. W. 1, Mani. He clea-rly\n\nstated that, in the accooots, no sum is shown for handling charges .-as an expenditure as such. The handling charges are only men-\n\n; tioned in the invoices received from the London Office for goods sent to Indi&. These refer to the amount of handling charges •incurred by the London Commercial Departments and all these amounts are recoverable from the customers in India along with the sale price. He added that the administrative (overhead) ex penses of the Hea office supervising the business of the Company at the three places in Calcutta, Bombay and Madras.\n\nThe expenditure of this Regional Office is of the same nature as the administr&tive\n\n(overhead) expenses of the Company in London.\n\nTheSe sums which have been shown as expenses in tb~ accounts in the Madras Branch are amounts allocable to that .Branch. This has been again proved by the same witness, M. W. l, Mani. There is no cross-examination and no evidence to show that the case put forward by him is incorrect. In the circumstances, this objection also fa.ils.\n\nThe fourth objection, on which greatest emphasis was laid by learned counsel for the parties, relates to the question of interest charged by the London Office in the sum of Rs. 1,00,657/- for 1964 and Rs. 1,65,255/- for 1965 on advances made by the London Office to this Branch a, t Madras during_ these years. It was urged that, having regard to the proviso to item l(iii) of thtt Third Schedule to the Act, this interest should be disallowed.\n\nIt, however, appears to us that the question ot this interest should be examined from a different aspect and that is whether this iaterest ca.n be held to be a legitimate item of expenditure in calculating the profit and loss of the Company at Madras. It i6 clear that these amounts have been paid by the Branch at Madr~ to Head Office in London and represem. interest which the Londo• Office demanded from the Madras Branch on the advances made by the former to the latter.\n\nThese payments are, thus. by a Branch of the Company to its Head Office.\n\nThe Head Office and the Branch Office both belong to the same Company. sue•\n\na payment of interest could be justified only on the basis that the London Office was . the creditor and the Madra.s Branch tie debtor in respect of the advances on which the interest has bee• claimed by the London Office. On the face of it, a Company cannot be a creditor and its own debtor simultaneously.\n\nNo relationship of creditor and debtor can exist between two diffew rent Offices of the same Company. The interest paid merely amounts to money transferred by the Madras Branch to the Ht!ad Office and, similarly, advances made by the London Office to the Madras Branch are amounts which continue to be used by the Company for its business at a different place.\n\nLea.rned counsel appearing for the Company drew our attention to section 23 of the Act, under which there is a presumption as to the correctness of statements and particulars contained in the bala.J.ce-sheet and profit and loss account of a Company if they had been properly audited by qualified auditors, and urged that, since the interest charged by the Head Office to the Branch\n\nWORKMEN v. WILLIAM JACL is an appeal by certificate from a judgement of a division bench. of the Madras High Court affirming the decision of a learned single judge rejecting the petition filed by the appellant under Art. 226 of the Constitution to quash an order passed by the respondent Instituffi on April 26, 1963 which had the effect of terminating his serVices.\n\nThe appellant had a distinguished academic career.\n\nAfter P.assing the Master's degree in Organic Chemistry from the Luck~ now University he obtained a Doctorate from the Royal School of Mining of the lJniversity of London. He got a Post Graduate Diploma from the , Imperial College of Science and Technology, London. He worked for' sometime a, nd was employed successively in some of the Universities in the United States Qf America.\n\nSince the year 1960 the appellant had been making efforts to get employment in the respondent Institute.\n\nThis Institute is one of the four Institutes of Science and Technology which have .been declared to be institutions of national importance, It ha-s\n\na Board of Governors, the Chairman and Members of which are distinguished edu- nal Transport Authority had to consider the respective qualifications of the applicants as on the date of their applications and not as on the date of the actual consideration by the Regional Transport Authority.\n\nFourthly, the High Court held that while considering the applications the Regional Transport Authority under section 47 of the Act could call for such specific information as it needed from a particular applicant, but in the present case fulr information from all. the applicants had already been called for and was now on the record of the Regional Transport Authority and therefore the Regional Transport Authority should dispose of the applications pending before it for five years without further delay.\n\nThe first question which falls for consideration is whether the Regional Transport Authority can call for further or additional information from the applicants.\n\nThe applications for stage carriage permit are to contain particulars mentioned in section 46 of the Act and in clauses (a) to (f) thereof which are as follows :-\n\n\"Application for stage carriage permit.-An application for a permit in respect of a service of stage carriages or to use a particular motor' vehicle as a stage ca, rriage (in this Chapter referred to as a stage carriage permit) shall, as far as may be, contain the following particulars namely:-\n\n(a) the route or routes or the area or areas to which the application relates ;\n\n(b) the number of vehicles it is proposed to operate in relation to each route or area and the type and seating capacity of each such vehicle ;\n\n(c) the minimum and maximum number of daily trips proposed to be provided in relation to each route D or area and the time table of the normal trips ;\n\n(d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasion ;\n\n(e) the arrangements intended to be made for E the housing and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage ;\n\n(fl such other matters as may be prescribed.\"\n\nAn applicatit>n for stage carriage permit is under the Bombay Motor Vehicles Rules 1959 to be made in the form prescribed by rule 80 and described as form P. St. S. A. The prescribed fom1 of the application contains 22 columns.\n\nIn the. present appeal, the columns which are relevant for consideration are columns 10 to 16 and 19. These columns are as follows:-\n\n\"IO. Number of vehicles kept in reserve to maintain the service regularly and to provide for special occasion ...................... ..\n\n11. Arrangements made for housing and repair of vehicles (to be given in detail) ................................ .\n\n12. Arrangements made for convenience and comfort of passengers ...... , .................................. .\n\n13. Arrangements made for storage and safe custody of luggage ..................................................... .\n\n14. Particulars of any stage or contract carriage permit valid in the Sta.te, held by the applicant.. .............. ..\n\n15. Particulars of any permit held by the applicant B in respect of the use of any transport vehicle in any other\n\nState ............................. .\n\n16. Whether any of the permits stated above has been subject of an order of suspension or cancellation in la't four years. If so, give details ............................... ..\n\nI 9. I am at present in possession of .................... . vehicles available for use under the permit applied for.\"\n\nSection 47 (!) of the Act which deals with the power of tl!.e Re1ional Transport Authority to grant permits is as followi : -\n\n\"Procedure of Regional Transport Authority in considering application for stage carriage permit:(!) A Reio\n\nnal Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely ;\n\n(a) the interests of the public generally ;\n\n(b) the advantages to the public of the service to be provided including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken ;\n\n(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the placea to be served ;\n\n(d) the benefit to any particular locality or localities likely to be afforded by the service ;\n\n(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;\n\n(f) the condition of the roads included in tli• proposed route or area ;\n\nand shall also take into consideration any representations made by persons already providing passenger transport facilities by any means alon!l or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government,\n\nor by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies;\n\nProvided that other conditions being equal an application for a stage carriaige permit from a co-operative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners.\"\n\nThe other section relevaat for purposes of grant ot permits Ii section 57 of the Act which deals with the procedure of the Regional Transport Authority in considering applications for stage carriage permit. There are JO sub-sections of section 57. The two important sub-sections for the purposes of the present appeal are icction (2) and (3). Sub-section (2) deals with the time for making applications for grant of permits.\n\nNo dispute arises on that subsection in the present appeal. Sub-s. (3) provides that on receipt of an application for stage carriage permit the Regional Transport Authority shall make the application available for inspection \"at the office of the Authority and shall publish the applications or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication on which, and the time and place at which, the application and any representations received will be considered.\n\nThe only question which arises on sub-section (3) of section 57 of the Act in the present appeal is whether further or additional information as may be called for by the Regional Transport Authority will also have to be published.\n\nIn the case of Babu Goverdhan Regular Motor Service(') this Court held that the form prescribed by the Rules requiring the furnishing of information on the. various particulars and matters referred to therein was valid and section 46 of the Act, Rule 80 of the Bombay Motor Vehicles Rules and the prescribed form would all have to be read together in order to find out the i; cheme of the Act on the question of power of the Regional Transport Authority to ask for full and complete infonnation.\n\nSection 46 of the Act which deals with applications for stage carnage pennit enumerates the particulars to be given in the applications.\n\nThe prescribed. form is with reference to these particulars. In the case of Babu Goverdhan Regular Motor Service(') the\n\nState Transport Corporation in filling up columns 14 and 15 with regard to particulars of stage or contract carriage pennits held by the applicant in the State and in any other State did not give full particulars of pennits and ended by using the word \"et cetera\". The\n\n<1l (191012 s.c.~. 319.\n\nSUPRBMB COURT RBPORTS [1971] SUPP. s.c.R •.\n\nHigh Court in the case of Babu Goverdhan Regular Motor Service beld that the a.pplication of the appellant in that case was invalid because the application did not give full and complete details in respect of columns 14 and 15. This Court held that the applicant in that case should have given an exhaustive list of the other permits held by it in the State or in any other State and therefore the State. authorities could call upon a party to give complete details. The High Court in the present case expressed the view that giving of details would amount to an amendment of the application and that this Court in the case of Babu Goverdhan Regular Motor Service(') held that there could be no amendment of an application.\n\nThe decision of this Court is not to thateffect. If particulars will be furnished these particulars will become part of the application.\n\nThe application is to that extent amended.\n\nIn deciding the question of power of the Regional Transport Authority to call for further information it has to be borne in mind that the Regional Transport Authority shall, in considering an application for permit, have regard among other matters to the interests of the public generally, the advantages to the public of the services to be provided, the adequacy of other passenger transport services, the operation by the applicant of other transport services including those in respect of which applications from him for permits are pending, the benefit to any particular locality or Iocailities likely to be afforded by the service. Therefore in considering public interest if the Regional Transport Authority would find that the answers furnished by any applicant are not full and complete, it will be constricting the exercise of power of the Regional Transport Authority by denying it authority to ask for additional information for full and detailed consideration of the applications in the interest of the public.\n\nNo bard and fast rule can be laid down as to how the Regional Transport Authority will act or what the limitations of their powers will be. It is a statutory body. It is to exercise statutory , powers in the public interest.\n\nSuch public interest would have to be considered with regard to particular matters enumerated in section 47 of the Act and the particulars of an application are to be judged with reference to sections 46 and 47 in particular of the Act.\n\nReference may also be made to rule 68(6) of the Bombay Motor Vehicles Rules which enables the State or the Regional Transport Authority, as the case may be, to require an applicant to appear before it and to withhold the consideration of the application for the permit until the applicant has so appeared in person if so required or by any recognised agent if so permitted. and until the applicant has furnished such informa-. tion as may be required by the Transport Authority in connection with the application. The words \"in connection with the application\" are important. These words indicate tha.t the Regional\n\nco [1970J 2 s.c.R, 319.\n\nTransport Authority will have power to ask for further informa- A tion.\n\nIn the present case, on 29 July, 1970 the Regional Transport Authority found that the applications which had been submitted in the year 1965-66 would hardly represent the real merits of the operators in the year 1970.\n\nThe Regional Transport Authority therefore directed the applicants to file additional information relating to matters covered by columns 10 to 16 and 19 of the prescribed form.\n\nThe further direction was that the information would be filed before 21 August; 1970, and would be published and objections woul~ be called for within 15 days from the date of publication.\n\nCounsel for the respondents submitted that the information supplied by the applicants tiursuant to the direction of the Regional Transport Authority would be voluminous and the publication would take a Jong time.\n\nUnder section 57 of the Act the application is to be published in order to enable parties to submit representation in connection therewith.\n\nPublication therefore is a statutory obligation.\n\nIn view of the fact that information was asked for with regard to specific columns of the appli cation it cannot be denied that the information was in connection with the application.\n\nIt will therefore be within the competence of the Regional Transport Authority under section 57 of the Act to publish the application or the substance thereof in order to enable the persons affected thereby to send their representations to the Regional Transport Authority.\n\nThe Regional Transport Authority is entrusted by the statute to consider the applications for the grant of permit.\n\nApplications are on a printed form. _ It will be in the interest of the applicants to furnish all information.\n\nIf however for any reason, the Regional Transport Authority will require further information, it will depend upon Q!e facts and circumstances of each case as to whether F the power is exercised bona fide, and whether the discretion that is conferred on the Regional Transport Authority is exercised properly and judiciously.\n\nIn the absence of the Regional Transport Authority acting under any corrupt motive or mala fide or for any oblique purpose the discretion which is conferred on the Regional Transport Authority should not be undermined and restricted.\n\nThe High Court was in error on the second question in holding that the Regional Transport Authority would have to consider the respective qualifications of the applicants as on the date gf their applications and not as on the date of the actual consideration by the Regional Transport Authority of the applications for the H grant of permit.\n\nNormally, the Regional Transport Authority would consider the applications for the grant of permits within a short time of the submission of the applications. If for any reason,\n\nSUPRl!llB COURT REPORTS [1971] SUPP. s.c.I\\.\n\na Jong time elapses as in the present appeal, the Regional Transport Authority will have to consider the various matters enumerated in clauses (a) to (f) of section 46 of the Act at the time of consideration of the applications for the grant of permits. The public interest stands in the forefront. If the Regional Transport Authority will find that the applicant has become insolvent subsequen' to the submission of the application it cannot be expected that the Regional Transport Authority will yet have to grant a permit to the insolvent applicant.\n\nIn refusing the grant of permit the solvency of the applicant \\\\(ill enter the area of appreciation and assessment of the merits and demerits of the applicant.\n\nAgain, if an applicant died subsequent to the submission of the application the Regional Transport Authority will have to consider at the time of the grant °l permit whether it will allow the heirs or legal representatives to stand in the shoes of the deceased &pplicant.\n\nThis question arose before this Court in Dhani Devi v.\n\nSant Bihari & Ors. ('). This Court held that the Regional Transport Authority would have power to substitute the heirs I successors in place of the deceased applicant in the records of the proceedings and allow the successors to prosecute the application.\n\nIn the unreported decision of this Court in A. S. Jalaluddin v.\n\nBalasubramaniar Bus Service (P) Ltd. and A nr.(') the Regional Transport Authority refused to grant permit to an applicant on the ground that he did not have either main office or branch office or residence on the route applied for. The applicant preferred an appeal to the State Appellate Tribunal. The Tribunal set aside the order and granted the permit to the appellant. Before the Tribunal the appellant's counsel in that case stated that the applicant had sent to the Regional Transport Authority in advance of the date fixed for consideration of the application for the grant of permit a letter stating that the appellant had secured a branch office on the route in question.\n\nThe finding of the Tribunal was challenged by writ petitions in the High Court.\n\nThe learned Single Judge of the High Court held that the finding of the Tribunal could not be challenged but the Division Bench held that the finding of the Tribunal as to possession of branch office and residence on the route by the appellant was without evidence.\n\nThis Court set aside the Bench decision of the High Court and restored the judgment of. the learned Single Judge by holding Iha~ there was material before the Tdbunal that the appellant had secured a branch office.\n\nThis decision establishes two propositions: First, that an applicant can furnish additional or further information in connection with the application before the Regional Transport Authority and secondly that the Regional Transport Authority is competent to\n\n(I} (1969] 2 S.C.R.. 507. (2) c. A. No. 161 of 1965 decided on 31-10-1967.\n\nTRA~PORT CORP. V. MANORULPIR LTD. (Ray, J.) 573\n\nact on such information at the time of consideration of the appli A cations for the grant of permits. It will always have to be found out in the facts and circumstances of each case as to the nature of information, the manner of furnishing it in order to decide whether the Regional Transport Authority was entitled to ask for such information and the applicant was entitled to furnish it.\n\n1f the Regional Transport Authority will have at the date of the consideration of the grant of permit information which may disentitle the applicant by reason of conviction, insolvency, loss of fleet, lack of facilities, or any subsequent event of importance as would affect the grant of permit to an applicant, it would be in ful\n\nfilment of the objects and purposes of the Act and advancement of public interest to ensure that the permit is granted to the most meritorious applicant.\n\nTherefore it is all the more necessary to publish additional information in order to have the fullest materials on record for proper assessment and evaluation of the merits and demerits.\n\nThe High Court was wrong in directing the Regional Transport Authority to proceed on the basis of applications submitted in the year 1965-66.\n\nThe Regional Transport Authority will dispose of the applications on the basis of further information forwarded by the applicants and published by the Regional Transport Authority and representations by parties in connection therewith as expeditiously as possible.\n\nThe obvious need not be stressed that long time has elapsed and the Regional Transport Authority should proceed in accordance with law without further delay. The appeal is accepted.\n\nThe judgment of the High Court is set aside.\n\nEach party will pay and bear their own costs.\n\nG. C.\n\nAppeal allowed.", "total_entities": 33, "entities": [{"text": "MAHARASHTRA STATE ROAD TRANSPORT\n\nCORPORATION", "label": "PETITIONER", "start_char": 0, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "MAHARASHTRA STATE ROAD TRANSPORT CORPORATION", "offset_not_found": false}}, {"text": "MANGRULPIR JT. MOTOR SERVICE (P) LTD., &: ORS", "label": "RESPONDENT", "start_char": 47, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "MANGRULPIR JT. MOTOR SERVICE (P) LTD., &: ORS", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 129, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "A.N. 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M. SiKRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM,\n\nP. JAGANMOHAN. REDDY AND I. D. DUA, JJ.]\n\nIndian Police Service (Regulation of Seniority) Rules 1954, r. 3(3)(b) -Fixation of year of allotment-Officer recruited directly to Indian Police in 1945 is not direct recruit for purpose of main part of r. 3(3) (b)- First proviso to r. 3(3)(b) does not relate only to 'joint cadre'-Court must not interfere with discretion of Central Government to fix year of allotment on ad hoc basis under first proviso,\n\nThe appellant joined the Indian Army as a Commissioned Officer in 1942.\n\nHe became a Major in 1945. The appellant's services were lent to the State of West Bengal and accordingly on 10-1-1949 the appellant was posted as Commandant of the Special Police Battalion, a post corresponding to a senior post in the Indian Police Service.\n\nThe appellant with bis consent, was appointed to the West Bengal State Police Service on 1'7-1953. On 8th September 1954 the Indian Police Service (Recruit ment) Rules, 1954, Indian Police Service (Cadre) Rules, 1954 and tbe\n\nIndian Police Service (Regulation of Seniority) Rules 1954 were framed by the Government of India under s. 3 of the All India Services Act 61 of 1951.\n\nOn 6th June 1955 the Indian Police Service (Appointment by Promotion) Regulations 1955 were also issued under which 25% of the senior posts were allotted to the Indian Police Service cadre in each State.\n\nThe appointment of the appellant was outside this quota. On 31st Ju)y 1958 the appellant was appointed on probation in the State Cadre of West Bengal.\n\nIn December 1959 he was substantively appointed to a senior post in the Indian Police Service and confirmed thereon with effect from 21st July 1958.\n\nIn December 1958 the Ministry of Home Affairs conveyed to the Government of West Bengal its decision to fix the pay of the appellant in the senior scale of the Indian Police Service notionally from 10-1-1949, the date from which he held an Indian Police Service Cadre post continuously. On 19th January 1960 the Indian Police Servi.cc (Seniority of Special Recruits) Regulations 1960 were framed pursuant to r. 5-A of the Seniority Rules. On 11-10-1960 the Government of India in consultation with the Union Public Service Commission decided to allot to the appellant the year 1948. The year of allotment was subsequently changed to 1947 on the basis that the officiation of the appellant as well as that of the junior most direct recruit, in a senior scale did not start before 19th 1'.1ay 1951. The appellant filed a writ petition under Art. 27.6 of the Constitution. The Single Judge, allowing his petition, held that the date from which the appellant continuously officiated was 10-1-1949 and that accordingly the year 1943 allotted to D the Juniormost direct recruit, should olso be allotted to the appellant.\n\nThe learned Judge also hold that the first and second provisos to r. 3(3) (b) of the Senioritv Rules were not applicable to the appellant. The Division Bench in appeai agreed with the Single Judge, that the date of continuous officiation of the appellant was 10-1-1949. But the High Court thought that the year 1947 allotted to the appellant on the basis of his officiation from 19th May 1951 could not be sustained because the latter date had been held by this Court to be irrelevant in Nim's case. Non-the-less the year of allotment 1948\n\nA. R. MUKHBR!Bll v. UNION (Jagan mohan Reddy, J.)\n\nassigned to the appellant in the order of 11th October 1960 was sustained because it was on an ad hoc basis. Against the High Court's order the appellant appealed to this Court by certificate. His contentions were:\n\n(i) that under the main clause of r. 3(3). (b) of the Seniority Rules the year 1943 should be allotted to him as the said year had been allottpointed to a senior post in the Indian Police Service and confirmed thereon with effect from 21st July 1958. 'On the 19th December 1958, the Ministry of Home Affairs, New Delhi, by its letter to the Chief Secretary to the Government of West Bengal conveyed its decision to fix the pay of the Appellant in the senior scale of the Indian Police Service notionally from 10-1-1949 the date from which he held an Ii:tdian Police Service Cadre post continuously.\n\nInasmuch as no order of allotment was given to the Appellant and the seniority was not fixed at the time of his confirmation, the Appellant made a representation on the 3rd November\n\n1958 for fixation of his seniority and granting of 1943 as the year of allotment in the Indian Police Service Cadre, under Rules and Regulations of the service.\n\nTo this he received a reply on 31st March 1959 from the Assistant Secretary to the Government ot West Bengal informing that it is not possible for him to accede to the request of the Appellant contained in his representation.\n\nThereafter the Appellant seems to have taken up the matter again by his letter of 30-4-1959 and 22-8-1959 but there was no reply thereto. On 19th January 1960 the Indian Police Service (Seniority of Special.Recruits) Regulations 1960 were framed persuant to Rule 5-A of the seniority Rules. On 11-10-1960 the Government of India on a. reconsideration and in consultation with the Service Commission finally decided to allot to the Appellant the year 1948 enclosing a letter of the first Respondent dated 14-1-1963. Thereafter a memorial was presented to the President of India on 2-12-1960 asking for 1943 as the year of allotment to which the Appellant received a reply on 12-2-1963.\n\nIn this letter dated 12-2-1963 the Assistant Secretary to the second Respondent the State of West Bengal informed him of the decision of the Government of India as under :\n\n\"The Government of India have decided that the seniority of Shri A. R. Mukherji may be revised taking into account his officiation in senior cadre post from 19th May 1951.\n\nSince direct recruits borne on the I. P. S. cadre post of the West Bengal did not start officiating in a senior scale before this date (19-5-1951), Shri Mukherji's case will be decided ad hoc under Reg. 3 of the I. P. S.\n\n37-1 S.C. lndia/7 I\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\n(Seniority of Special Recruits) Regulations read with the first proviso to Rule 3(3) (b) 1954.\n\nAs the 'P' Factor in the West Bengal was 4 years 19 days, Shri Mukherji may be allotted, in modification of this Ministry's letter ........ . to the year 1947\".\n\nBeing aggrieved by the assignment of the allotment year 1947 the Appellant by his letter dated 1st July '63 made a representation to which he received a reply on 7th November 1963 enclosing a copy of letter dated 11th October '63 of the !st Respondent the Union of India, informing him that his representation was rejected. Thereupon he filed a Petition under Article 226 in the High Court of Calcutta.\n\nA Single Judge held that under the main Rule 3(3) (b) of the seniority Rules the date from which the Appellant continuously officiated is 10-1-1949 and accordingly having regard to the fact that Shri P. Dhar who was the juniormost direct recruit, the year of allotment given to him viz. 1943 also should be allotted to the Appellant.\n\nThe learned Judge also held that neither the 1st proviso nor 2nd proviso to r. 3(3) (b) is applicable to the Appellant.\n\nWhile the Division Bench in appeal lllgfeed with the Single Judge that the date of continuous officiation of the Appellant was 10-1-49,' it held that iii the circumstances the year of allotment which was required to be determined by the Government of India had to be decided on an ad hoc basis.\n\nBut since the date 19th May 1951 fixed as the date of officiation was struck down by this Court as arbitrary in D. R. Nim v. Union of India('), the High Court thought that the year 1947 allotted to the Appellant on the basis of his officiating from 19th May 1951 could not be sustained, nonetht>-less the year of allotment 1948 assigned to the Appellant in the order of I Ith October 1960 was sustained because it was on an ad-hoc basis. It was however observed by the Bench that in respect of inter-se seniority as they are not in a position to say whether the order of 11th October '60 in so far as it fixes the seniority of officers complies with. the requirements of Regulation of 1960, interest of justice required that they should strike down that portion of the order and ask the Government of India to make a new decision in the light of the principles they have indicated. In the result the Appeal was allowed and it as declared that the year of allotment 1948 was correctly assigned to the Appellant and accordingly the Government of India was directed to fix the seniority of the special recruits in accordance with Regulation 4 of the Seniority of Special Recruits Regulations 1960.\n\nThe short question in this Appeal which has been argued at some length by the Appellant personally is to ascertain the Rule ----------\n\n(I) [196712 S.C. R. 325.\n\nA. It l\\lUKHERJEll .. UNION (Jaganmohan Reddy, J.) 579\n\nwhich is applicable in determining what year of allotment should A be assigned to him.\n\nA brief history of the All India Police Services would facilitate an understanding of this question.\n\nThere was prior to 1946 a Secretary of State Service known as the Indian Police (IP).\n\nWhen India was to attain Independence an agreement was arrived at between the British Govermnent and the Central Govermnent with the concurrence of a number of Provincial Govermnents to constitute another service on the 21st October '46 known as the Indian Police Service (IPS).\n\nRecruit ment to this latter service began on and after the 15th August '47 when India attained Independence and subsequently on 23-1-1950, three days before India was declared a Republic on 26th January '50, the Governor General in consultation with the Provincial Governments promulgated rules for framing a Cadre for Police Officers known as the Indian Police Service (Cadre) Rules 1950 which came into force on that date. After 26-1-1950 Article 312 governed the All India Services.\n\nUnder clause (1) of the Said Article Parliament was empowered by law to constitute an All India Service common to the Union and the States and to regulate the recruitment and conditions of service. It also provided that the services known before the commencement of the Constitution the Indian Police Service arid Indian Administrative Service shall be deemed to be services created by Parliament under that Article.\n\nPersuant to these powers Parliament passed an Act known as the All India Services Act 61 of 1951 which recognised the existence of the two All India Services mentioned above.\n\nSection 3 of that Act empowered the Central Government after consultation witli the State Government concerned to make Rules and Regulation\n\nfor recruitment and conditions of service for appointment to All India Service.\n\nSection 4 further provided that all Rules in force ' JI immediately before the commencement of the Act were deemed to be Rules made under that Act.\n\nThe Central Government by virtue of tlie powers vested in it under Section 3 of the Act had promulgated 3 sets of Rules to which a reference has already been made namely the Recruitment Rules, the Cadre Rules and the Seniority Rules.\n\nOn May 14, 1956 the Indian Police Service (Special Recruitment) Regulations 1957 were made under Rule 9(5) of the Recruitment Rules.\n\nOn 19th January 1960 the Indian Police Service (Seniority of Special Recruits) Regulations 1960 were made persuant to Rule 5-A of the Seniority Rules.\n\nThese Regulations deal with the determination of seniority of recruits ap!>ointed under Special Recruitment Regulations; Regulation 3 of which provides that officers appointed to Service in accordance with that Regulation shall be assigned a year of allotment in accordance with r. 3(3) (b) of the Seniority Regulations 1954.\n\nSUPREME. COURT REPORT~ {1~71] SUPP. s.c.R.\n\nUnder sub-rule (!) of Rule 3 of the Recruitment Rules the Indian Police Service is constituted of the following persons. namely :\n\n(a) Members of the Indian Police ;\n\n(b) Members recruited to the service before the commencement of the Rules ; and\n\n(c) Persons recruited to the service in accordance with the provisions of these rules.\n\nService has been defined as meaning the Indian Police Service which as we have noticed was constituted even earlier than these rules.\n\nAfter the commencement of the Rules, recruitment to the service is to be made under Rule 4 by 2 methoqs :\n\n(a) by competitive examination, and\n\n(b) by promotion of substantive members of a State Police Service.\n\nRule 6 further provides that all appointments to service after the commencement of the Rules shall be made by the Central Government and no such arrangements shall be made except by one of the methods specified in Rule 4.\n\nIt is with respect to the second method of recruitment by promotion that we are concerned in this case as the Appellant was appointed to the service under Rule 9. Sub-rule (5) of that rule which was introduced with effect from 14th May '56 by Notification dated the 9th May '57 empowers the Central Government to promote substantive members of a State Police Service in excess of the normal promotion quota in accordance with such regulation as the Central Government may in consultation with the State Government and the Commission make from time to itme.\n\nIn exercise of the powers under this Rule the Special recruitment Regulation 1957 was made, which by Regulation 4 applied the Indian Police Service (Appointment by Promotion) Regulation 1955 (hereinafter called the \"Appointment by Promotion Regulation\".).\n\nRegulation 4 of the Appointment by promotion Regulation was substituted by another Regulation 4 the effect of which is that the Committee in consultatiOn with the Commission must consider the cases of members of the State Police Service who mi 3ht December '56 may have completed not less than six years of service (whether officiating or substantive) in a post of Deputy Superintendent of Police. While under the original Regulation 4 of the Appointment by Promotion Regulation, the Committee has to meet at intervals ordinarily not exceeding one year and consider a case of a.11 the substantive members of the Police Servioe who had on !st January of that year completed eight years of service in a post of Deputy Superintendent of Police. In Regulation 5, sub-Regulation (4) and in sub-Regulation\n\nA. R• MUEHBRJEl! Y. lrNION (Jagaitmohan Reddy, J.)\n\n the words \"Review i>r revision\" were'-deleted. Similarly sub-Regulation (3) & (4) of Regulation 7as well as Regulations 8; 9 and IO were omitted.\n\nThe effect of these amendments is that for the Special Recruits there was no provision for the preparation of a select list referred to in Regulation 7(3) and (4).\n\nIn the case of the special recruits a list prepared by the Committee is sent alongwith other documents from the State Government to the Commission and unless the Commission considers any change necessary it merely has to approve the list: It is then for the Central Government to appoint the persons approved in the list.\n\nThe Appellant is admittedly a special recruit within the meaning of the provisions referred to above and his eontention that unlike the cases of those who are to be appointed within the 25 % quota his name need not be included in the select list to be appointed whenever there is a vacancy from out of that list. All that is necessary in his case is that once the Commission approves the list of persons selected the Government of India can straightaway appoint him and that is what he says has been done in his case.\n\nWhile this may be so in our view no significance can be attached to this difference in the method of recruitment.\n\nIn so far as the question before us is concerned what we have to see is whether the main rule 3(3) (b) of the seniority Rules applies or whether his case comes _within any of the provisions thereto for the purposes of ascertaining which is the year of allotment which can be_ assigned to him. It may be mentioned that submle (I) of Rule 3 of the Seniority Rules makes it incumbent upon the Central Government to assign a year of allotment to every olJicer in accordane with the provisions of that Rule.\n\nThe assignment of the year of allotment to an officer appointed to the service after the commencement of the Rules is governed by the Seniority Rules which are applicable to the Appellant.\n\nThe relevant rule 3(3) (b) is as follows :\n\n\"3(3) The year of allotment of an Officer appointed to the service after the commencement of these rules shall be:\n\n(a) ...\n\n(b) Where the Officer is appointed to the service by promotion in accordance with Rule 9 of the Recruitment Rules, the year of allotment of the juniormost among the Officers recruited to the service in accordance with Rule 7 of _those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former\".\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nA ' Provided that the year of allotment of an Officer appointed to the Service in accordance with Rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned; B\n\nProvided further that an Officer appointed to the Service after the commencement of these Rules in accordance with Rule 9 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulations framed under Rule 9 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission.\n\nExplanation I. An Officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that. date to the date of his confirmation in the senior grade he continues to hold without any break or reversion as senior post otherwise than as a purely temporary or local arrangement.\n\nExplanation 2.\n\nAn Officer shall b~ treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance.\n\nThe above rule has been construed by this Court in D. R.\n\nNim v. Union of India('), in respect of the second category to which it was applicable namely an officer appointed to the Indian Police Service after the commencement of the Rules.\n\nOne of us \" plies, as such the Central Government has to fix the year of allot ment and seniority of the applicant on. ad hoc basis. The Appellant on the other hand argues strenuously that the first proviso does not apply t~ him because, it .is. _applicable only to persons in the joint cadre.\n\nThis contention is suggested by a curious process of reasoning namely that because under that rule the officiating date has to be determined ad hoc by the Central Government in consultation with the State Government concerned and as \"the State Government concerned\" is defined as being in relation to a joint cadre that proviso deals only with officers in the joint cadre and the officiating date to be fixed ad hoc is in relation to persons who come into the joint cadre from States other than the nine erstwhile British Indian Provinces like Hyderabad, Mysore etc. In our view the first proviso to rule 3 nowhere refers or even remotely indicates that it is only applicable to the persons in the joint cadre.\n\nIn fact, in rule 2(i) of the Seniority Rules and word \"State cadre\" and 'joint cadre' have been defined as having the meaning respectively assigned to them in the Indian Police Service (Cadre) Rules 1954.\n\nBy reference to rule 7 of the Cadre rules it is apparent that what is to be determined is the authority which is to appoint, to the respective cadres i.e. in the case of State Cadre it is the\n\nA. R. MUKHERJEE •• UNION (Jaganmohan Reddy, J.) 58 5\n\nState Government and in the case of Joint Cadre it is the State Government concerned. The first proviso does not refer to any appointment to any cadre, it only deals with Regulation of Seniority and the reference to the 'State Government concerned' is for the purposes of fixing the date of officiation ad hoc in consultation with the Central Government. When there are several State Governments the consultation by the Central Government must neces- • B sarily be with the State Goverment concerned m relation lu th~ officer who is appointed to the cadre of that State. Whether the first proviso applies or the second proviso applies, under both of them it is the Central Government that has to determine ad hoc, the year of allotment after approving the period of officiation in consultation with the Public Service Commission.\n\nIn view of the Judgment in Nim's case, the order assigning 1947 as the year of allotment to the Appellant on the basis of an arbitrary date of officiation namely 19th May '51, is bad and has been quite properly struck down by the High Court.\n\nThe High Court however had no power to direct the year 1948 to be fixed as the year of allotment for the determination of the seniority ot the Appellant on the basis that that was fixed on an ad hoc basis in an earlier occasion by the Government of India. . Once the Government of India has on a memorial presented by the Appellant decided finally in supercession of its previcms . decision that the year of allotment to be assigned to the Appellant in relation to the date of his continuous officiation.\n\nThe Appellant also contends that the date of his continuous officiation is that which has been held by both the Single Judge as well as the Division Bench of the High Court of Calcutta i.e. the 10th January '49. While on the other hand the learned Solicitor General as well as Mr. Chagla appearing on behalf of West Bengal contend that the officiation cannot commence till after he was appointed to the West Bengal service which was only on the !st July '53, till then he was an Officer in the Army with a lien to the post of a Major and cannot therefore be said to be appointed to that service from the 10th January '49. The Appellant's answer is that the Government of India had in relation to his pay determine4 10-1-1949 as the date from which he is said to be officiating and in any case the date of continuous officiation is not from the date of appointment but from the date on which a person <>ecupies a post and officiates continuosly without a break.\n\nIt is true that both the Courts have held that the date of the Appellant's officiation in. the service is 10-1-1949 and in arriving at this\n\n586 SUPllBMB COURT. REPORTS [1971] SUPP. s.c.R..\n\nA conclusion they seem to have relied on a letter to the Government_ of India dated 19-12·1958 in which it has been stated as follows:\n\n\"The Government of India have decided that the pay of Shri Mukherjee should be fixed in the sepior scale of the I.P.S. notionally from 10-1-1949 the date from which B he held an Indian Police Service post continuously\".\n\nThe Division Bench however rejected the contention of the Respondents that July I, 1953 should be the datum date, the date from which the Appellant's continuous officiation commenced. It observed :\n\n\"Now, there can be no question that the Petitioner had been officiating in the post of a Commandant from January 10, 1949 and that he had continuously held that post right upto July I, 1953. There is nothing in clause (b), which shows that while officiating in a 'senior post' the officer concerned must be an officer belonging substantive Jy to the State Police Service in question and could not be an officer on deputation from some other service. There can be little doubt that the particular clause we have before us viz., clause (bT of rule 3(3) in term is wide enough to cover even the period between January 10, 1949 to July I, 1953\".\n\nIn view of this finding the Petitioner strenuously contends that as he has already suffered a great deal and has come to the end of his resources this Court should, having regard to the position taken up by the Government, of India in its Jetter referred to earlier namely 10th January '49 as the date from which he held the post in the West Bengal Police Service continuously, which according to both the Courts was also the date of continuous officiation and also having regard to the 'P' factor which for the State of Bengal has been fixed by the Government of India as 4 years 19 days, this Court could determine the year of allotment by deducting the 'P' factor from the date of officiation and assign to the appellant the year 1943 as the year of allotment. He also contends that in the case of Nim, the Government of India after the decision of this Court, determined the year of allotment and assigned to him this very date 1943.\n\nWhatever force these contentions may have we do not propose to trespass upon the jurisdiction of the Government of India to determine ad hoc in consultation with the Commission, on a consideration of the relevant materials, the date of the Appellant's continuous officiation and assign to him a year of allotment\n\nA. R. MUKHERJEE v. UNION (Jaganmohan Reddy, J.).\n\nWe would therefore direct that. the Government of India in consultation with the Public Service Commission do determine and allot ad hoc the year of allotment according to law within two to three months, as in our view after Nim's case the position having already been clarified, it should not take much time to determine the seniority of tho Appellant.\n\nThe: Appeal is accordingly allowed with costs against tho Union of India.\n\nG.C.\n\nAppeal allowed.\n\n58\"1", "total_entities": 32, "entities": [{"text": "ARUN RANJAN MUKHERJEE", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "ARUN RANJAN MUKHERJEE", "offset_not_found": false}}, {"text": "UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 26, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "S. M. SiKRI", "label": "JUDGE", "start_char": 66, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 86, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "P. JAGANMOHAN. REDDY", "label": "JUDGE", "start_char": 121, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "I. D. DUA, JJ.", "label": "JUDGE", "start_char": 146, "end_char": 160, "source": "metadata", "metadata": {"canonical_name": "I.D. 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S. HEGDE AND A. N. GROVER, JJ.l\n\nCode of Criminal Procedure, 1898-Section 479A sub-section (!)- Reasonable opportunity of being heard contemplated by section not nzan .. datory,\n\nThe requirement under sub-section (!) of section 479A of the Code of Criminal Procedure, of giving the witness an opportunity of being heard after the recording of the necessary findings .and before making the complaint is not mandatory. That step is required to be taken only if the court thinks fit-a matter left to the discretion of the trial court. The prosecution of the appellant is therefore not vitiated because such an opportunity was not given. [594F-GJ\n\nDr. B. K. Pal Chaudhry v. The State of Assam, [1960] l S.C.R. 945 and Dr. Kuppa Goundan and Anr. v. M.S.P. Rajesh, [1966) Supp. S.C.R. 373, distinguished.\n\nRukmani Bai v. G. R. Guvindaswamy Chetty, [1963] M.L.J. 411 and Re: Javvaji Uthanna, A.l.R. 1964 A.P. 368, referred to.\n\n[In the instant case adequate opportunity wa! given to the appellant, before the findings were recorded to show cause why ho should not be E prosecuted. Therefore tho Court did not find it necessary to expoess any opinion as to the correctness of the observations of the Madras and Andhra Pradesh High Courts in Rukmani Bai v. Govindaswamy Chetty and In re Javvaji Uthanna that even though sub-section (1) does not mandatorily require that any opportunity should be given to the person complained against there is no reason why the principle of audi alteram partem should not apply.] [S95D-E]\n\nF CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3\n\nof 1969.\n\nAppeal by special leave from the Judgment and Order dated September 2, 4, 1968 of the Bombay High Court, Nagpur Bench in Criminal Appeal No. 74 of 1968.\n\nW. S. Barlingay and A. G. Ratnaparkhi, for the appellant.\n\nP. K. Chatterjee and S. P. Nayar, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nHegde, J.-The only substantial question that arises for decision in this appeal by special leave is as to whether the requirements of Section 479-A of the Code of Criminal Procedure have been complied with before instituting the complaint from which\n\nNARAYANSW, l.MI ~-MAHARASHTRA (Hegde, J.) 589'\n\nthis appeal arises and if they have not been complied with A whether the prosecution is vitiated ?\n\nIn July 1965, there was a dacoity within the limits of Railway Police Station,.Nagpur. Several properties belonging to the Railways were stolen int the course of that dacoity.\n\nDuring the investigation of that offence, the Railway Police sought the assist ance of the local police. Inspector Khandagale (D. W. I) who was incharge of the Tehsil police station directed the appellant, the Sub-Inspector working under him to assist the Railway Police in the investigation' of the case.\n\nPart of 'the investigation was carried on by the appellant.\n\nTwo of the persons arrested in connection with that dacoity were Ambadas and Deorao.\n\nThey are said to have made certain statements on July 21, 1965.\n\nIt is further alleged that in pursuance of the information given by Deorao, the police in the presence of the Panchas recovered certain properties.\n\nThe concerned panchnama was attested by two witnesses viz. Pochanna and Abdul Gani. After the investigation a charge-sheet was filed against several persons including Ambadas and Deorao accusing them of the commission of an offence under Section 395, I. P. C. After preliminary enquiry the case was committed to the court of Sessions, Nagpur and was tried before the Additional Sessions Judge, Nagpur as Sessions Trial No. 8 of 1966 on his file. The trial of the case commenced on June 6, 1966.\n\nPochanna, one of the Panch witnesses was examined on June 9, 1966.\n\nHe did not support the prosecution.\n\nAbdul Gani, the other Panch witness also had been cited as a witness but he was not present in court on June 9, 1966.\n\nOn June 10, 1966, one person who claimed himself to be Abdul Gani, who had attested the panchnama, was examined.\n\nHe deposed that he had attested the panchnama and that he was present at the time the recoveries were made. On June 11, 1966, the appellant was examined. The appellant deposed that the person examined on the previous day was Abdul Gani and that person had attested the panchnama in question.\n\nThereafter the case took a new turn. It appears that the accused came to know that the person examined on June 10,\n\n1966 was not Abdul Gani out one Dilawar and that the real Abdul Gani had migrated from Nagpur and settled down at Rajnandgaon.\n\nOn enquiry their Counsel, Mr. Ingle came to know that Dilawar who posed himself as Abdul Gani was involved in a criminal case pending in the Munsiffs court in Nagpur.\n\nAfter ascertaining all the facts, Mr. Ingle filed an application before the learned trial Judge alleging that the witness who posed himself as Abdul Gani and spoke in support of the recovery panchnama was an imposter and that he was not the real attester to the panchnama. Therein he further stated tlmt the name of that person was Dilawar and\n\nIJe was the son of one Munirsha.\n\nThereafter the learned trial judge recalled the said witness and further examined him on June\n\nSUPREME COURT RBPORTS [1971) SUPP. s.c.R.\n\n14, 1966.\n\nAt that time the witness confessed that he was not Abdul Gani and that he did not attest the panchnama, but he had been compelled by the appellant to depose falsely. After the examination of this witness, the learned trial judge being prima facie of the opinion that the appellant had given perjured testimony and that he has fabricated false evidence, issued a notice to the appellant to show cause why he should not be prosecuted for perjury and for fabricating false evidence for the purpose of the case.\n\nThe appellant showed cause on June 16, 1966.\n\nIn the statement filed by him he again asserted that the person examined on June 10, 1966 was Abdul Gani, the attester of the panchnama.\n\nHe denied the fact that the said witness is Dilawar.\n\nHe went further and averred that the witness had been purchased by the accused and that he has deposed falsely that he is not Abdul Gani.\n\nThereafter the appellant was recalled and further examined. During the course of his exmination he reiterated the stand taken by him in his written statement.\n\nIn the course of his cross-examination, it was elicited from him that he knew the person concern ed for over three years, thereby the possibility of the appellant giving incorrect evidence due to misconception was ruled out.\n\nAfter the appellant was re-examined, the accused produced a per son in court who according to them was the real Abdul Gani. That person deposed that he is Abdul Gani and that he was the person who had attested the panchnama. The learned trial Judge took his sample signatures and compared the same with the signature found on the panchnama. He found them to tally witb one another.\n\nAfter the conclusion of the trial, the learned trial judge acquitted all the accused and directed the prosecution of Dilawar and the appellant under Sections 195 and 196, I. P. C. At this stage it may be noted that in the course of his judgment in the dacoity case, the learned trial judge gave a finding that Dilawar and the appellant intentionally gave false evidence in the case and further the appellant had intentionally fabricated false evidence for the purpose of being used in that case.\n\nHe also opined that for the eradication of the evils of perjury and fabrication>0f false evid ence and in the interest of justice it is expedient that Dilawar and the appellant should be prosecuted for the offences committed by them.\n\nOn the basis of that complaint, the appellant and Dilawar were tried, convicted and sentenced to suffer rigorous imprison ment for three years.\n\nThe appellant was convicted both for perjury as well as for fabricating false evidence.\n\nUnder each head, he was awarded a sentence of three years rigorous imprisonment but the two sentences were ordered to run concurrently. Dilawar did not appeal against his conviction and sentence. The appel !ant appealed against the judgment to the High Court of Maharash tra.\n\nHis appeal was summarily dismissed.\n\nThereafter he appealed to this Court after obtaining special leave.\n\nIn that appeal this Court came to the conclusion that the High Court should not have\n\nsummarily dismissed the appeal as arguable questions of fact and A law arose for consideration.\n\nIt accordingly set aside the order of the High Court and remitted the case to the High Court with a direction to re-admit the appeal and dispose of the same according to law.\n\nAccordingly the appeal was again heard by the Nagpur Bench of the Maharashtra High Court.\n\nThe appeal has again been dismissed by the High Court.\n\nWe have now to con- B sider the correctness of the decision of the High Court.\n\nSo far as the merits of the case are concerned, there is little to be said in favour of the appellant's case.\n\nThere is hardly any doubt that Dilawar had posed himself as Abdul Gani.\n\nIt is also clear from the evidence on record and from the circumstances of the case that the appellant was responsible for inducing Dilawar to pose as Abdul Gani.\n\nAll that was said in favour of the appellant by Dr. Barlingay, his learned Counsel was that the possibility .of the appellant innocently thinking that Dilawar was the real Abdul Gani cannot be ruled out. We are unable to accept this contention.\n\nIt is clear from the admissions made by the appel- 1ant during the Sessions Trial which admissions have been brought on record as evidence in the present case that he knew Abdul Gani very well.\n\nTherefore there was no occasion for him to make any mistake.\n\nThe appellant had strongly asserted in his statement in reply to the show cause notice as well as in his deposition in court that the person who was examined on June 10, 1966 was the real Abdul Gani and that he was the person who had attested the panchnama.\n\nUnder these circumstances, the plea that the apellant gave evidence under an erroneous impression cannot be entertained. It is clear that the appellant has no regard for truth.\n\nWe also do not find any merit in the contention that the explanation given by the appellant in the dacoity case as well as his evidence in that case are inadmissible in the present proceedings.\n\nAdmissions made in the explanation given and in the deposition are relevant and admissible in the present case.\n\nAn admission is a substantive evidence, though it is open to the person who made the admission to show that the fact admitted is not correct.\n\nIn the absence of any such proof the admission has to be considered\n\nas an important piece of evidence.\n\nAs mentioned at the outset the only important question for decision in this appeal is whether the requirements of Section 479- A. Code of Criminal Procedure have been complied with before filing the present complaint.\n\nSection 479-A was incorporated into the Code of Criminal Procedure by Act 26 of 1955.\n\nThat\n\nsection reads : H \"479-A. Procedure in certain cases of false evidence.\n\n(!) Notwithstanding anything contained in sections\n\n.592\n\n476 to 479 inclusive when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which in the opinion of the Court is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction and may if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate : Provided that where the Court making the complaint is a High Court the complaint may be signed by such officer of the Court as the Court may appoint.\n\nExplanation.-For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class.\n\n(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200.\n\n(3) No appeal shall lie from any finding recorded and complaint made under sub-section (!).\n\n(4) Where, in any case, a complaint has been made under sub-section (!) and an appeal has been preferred against the decision arrived at in the judical proceeding out of which the matter has arisen; the hearing of the case before the Magistrate to whom the complaint was forward ed or to whom the case may have been transferred shall be adjourned until such appeal is decided ; and the Appellate Court, after giving the person against whom the complaint has been made an opportunity of being heard, may. if it so thinks fit, make an order directing the withdrawal of the complaint; and a copy of such order shall be sent to the Magistrate before whom the hearing of the case is pending.\n\n(5) In any case, where an appeal has been preferred A from any decision of a Civil, Revenue or Criminal Court but no complaint has been made under sub-section (1), the power conferred on such Civil, Revenue or_ Criminal Court under the said sub-section may be exercised by the Appellate Court ; and where the Appellate Court makes such complaint, the provisions of sub-section (1) shall B apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard.\n\n(6) No proceedings shall be taken under Section 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a C person proceedings may be taken under this section\".\n\nThis section was introduced into the Code with the idea of eradicating to the extent possible the evils of perjury and fabrication of falne evidence a widespread evil that is corroding our judicial system. The then existing procedure in the matter of prose- D cuting those who give false evidence or use fabricated evidence in judicial proceedings was found to be tardy and ineffective.\n\nTherefore power was given both to the trial court as well as to the appellate court to forthwith complain against witnesses guilty of perjury or fabricating false evidence without having recourse to the procedure laid down in Sections 476 to 479 of the Code E of Criminal Procedure.\n\nBut at the same time the legislature felt that before proceeding against those persons the court must form an opinion that the witness has either given intentionally false evidence or has intentionally fabricated false evidence and further must form an opinion that it is expedient in the interests of justice that the witness should be prosecuted for the offence committed by him.\n\nIt is clear from the findings given by the learned trial Judge in the dacoity case that he had come to a prima facie conclusion that the appellant had given false evidence and further that he had intentionally fabricated false evidence for the purpose of being used in that case.\n\nHe had also come to the conclusion that for G the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it was expedient that the appellant should be prosecuted for the offences committed by him. Thus far there is no difficulty.\n\nBut according to the appellant, the complaint is vitiated because after arriving at the findings in question and before filing the complaint, the learned Sessions Judge had H not given him an opportunity to show cause why complaint should not be filed against him.\n\nAs seen earlier he had given an opportunity to the appellant at an earlier stage to show cause why he 38-1 S. C. India/7 I\n\nSUPREMll COURT REPORTS [1971] SUPP. s.c.R.\n\nshould not be prosecuted for giving false evidence and for fabri eating false evidence.\n\nBut we are told that the requirement of giving a notice to show cause why a complaint should not be filed, after the required findings are given and before making the com plaint is mandatory and failure to do so has vitiated the prosecu\n\ntion.\n\nLet us now proceed to consider whether this contention is well founded.\n\nThe material portion of Clause (1) of Section 479A is :\n\n\" .................. when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding and that for the eradication of the evils of perjury and fabrication of false evid\n\nence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the court shall at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons tlierefqr and may if it so thinks\n\nfit, after giving the witness an opportunity of being heard make a complaint thereof in writing ............... \"\n\n(emphasis supplied)\n\nThis provision clearly shows that what is mandatory is that the judge must give a finding that the witness has intentionally given false evidence in the proceeding before him or has intentionally fabricated false evidence for purposes of being used in that proceeding and that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that the witness should be prosecuted for the offence in question.\n\nGiving of an opportunity to the witness to show cause against the contemplated complaint is not mandatory. That step is required to be taken only if the court thinks lit-a matter left to the discretion of the trial court.\n\nThis position is made further clear when we go to sub-section (5) of Section 479-A. This sub-section empowers the appellate court to make a complaint against a witness whom it thinks is guilty of perjury or guilty of fabricating false evidence to be used in the proceedings before it.\n\nIt provides that where the appellate court propose.• to make a complaint \"the provisions of sub-section (I) shall apply accord ingly but no such order shall be made without giving the person affected thereby an opportunity of being heard\".\n\n(emphasis supplied)\n\nIn other words in the case of the trial court a discretion is given as to whether an opportunity should be given or not before filing a complaint to show cause against the proposed complaint but so far as the appellate court is concerned the giving of an opportunity to the witness to show cause against the contemplated complaint is made mandatory.\n\nThe reason for this distinction is understandable.\n\nSo far as the trial court is concerned, it is the court that has seen the witness and observed his demeanour. Therefore the legislature evidently thought that the question whether a witness should be given a further opportunity to show cause why complaint should not be filed against him may be left to the discretion of that court but the appellate court having no such opportunity, the legislature evidently thought that an opportunity should be given to the witness to show cause against the contemplated complaint.\n\nThe conclusion arrived at by us accords with the view taken by the High Court of Madras in Rukmani Bai v. G. R.\n\nGovindaswamy Chetty(') and by Andhra Pradesh High Court in Re. Javvaji Uthanna(\").\n\nIn those two decisions even after coming to the conclusion that Clause (!) of Section 479-A does not mandat0rily require that any opportunity should be given to the person complained against to show cause against the contemplated complaint, the courts took the view that all the same notice should be issued as there is no reason why the well-known and well accepted principle of audi a/teram partem should not apply. In this case it is not necessary to express any opinion as to the correctness of these observations.\n\nAs seen earlier adequate opportunity had been gi.ven to the appellant to show cause against the proposed complaint.\n\nDr. Barlingay, learned Counsel for the appellant placed reliance on two decisions of this Court namely in Dr. B. K. Pal Chaudhry v. The .State of Assam(') and Kuppa Goundan and anr. v.\n\nM. E. P. Rajesh(') in support of his contention that after giving the findings required under Section 479-A(l) and before filing the complaint, the court is bound to give the person concerned an opportunity .to show cause against the proposed complaint against him.\n\nNeither of the two decisions bear on the question of law in issue. In Dr. B. K. Pal Chaudhry's case(), the complaint was filed by the appellate court and not by the trial court.\n\nAll that was held by this Court in that case is that it was the duty of the court acting under sub-sections 1 and 5 of Section 479-A of the Code of Criminal Procedure to record a finding that in its opinion intentionally false evidence has been given and for the eradication of the evils of perjury and in the interests of justice, it\n\n(1) (1963] M.L.J. 421;·\n\n(3) [1960] 1 S.C.R. 945.\n\n(2) A.1.R. 1964 A.P. 368.\n\n(4) [1966] Supp. s.c.R. 373,\n\nis expedient that there should be a prosecution for the offence and also to give the person against whom it is intended to proceed a hearing before making the complaint in respect of t..e offence.\n\nIn Kuppa Goundan's case(') the scope of sub-section (6) of Section 479-A, Code of Criminal Procedure came up for consi deration.\n\nThat case has nothing to do with the scope of sub-section (]) of Section 479-A, The observations made in those cases must be read in the context in which they were made.\n\nIn those cases this Court did not consider the scope of Section 479-A(l).\n\nIn the result this appeal fails and the same is dismissed.\n\nK.B.N.\n\nAppeal dismissed.\n\nCt> (1966) Supp. s.c.R.. 373.", "total_entities": 32, "entities": [{"text": "NARAYANSWAMI", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "NARAYANSWAMI", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 14, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "K. 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SHELAT, A. N. RAY AND V. BHARGAVA, JJ.]\n\nElection-System of proportional representation by single transferable vote by ballot-Equality of votes in second count-Exclusion of candidate by reference to votes on firsi count-Propriety.\n\nAffiliation of Colleges to University-Delay In publication of notification-Effect on voting rights.\n\nUnder s. II of the Poona University Act, 1948, the Vice Chancellor shall be elected by the Court of the University, from among three persons recommended by the Executive Council, and the election shall be made by the system of proportional representation by means of a single transferable vote by ballot: In the present case, the result of the ballot papers was that one candidate secured 58 first preference votes, the second secured 53 first preference votes, and the third candidate secured 37 first preference votes. The third candidate was eliminated on the first count on the basis of his securing the lowest number of first preference votes, and his second preference votes were distributed between the other two.\n\nThis resulted in both of them securing an equal number of votes on the second count. and the candidate who bad the majority in the first count was declared elected. The election was set aside by the High Court.\n\nOn the questions: (1) Whether the tie should have been resolved by drawing of lots; and (2) Whether the principals of four colleges voted wrongly at the election because those colleges had not been duly affiliated at the date of election.\n\nHELD: (1) It is an established principle in the system of proportional representation by means of a single transferable vote by ballot, that where for one vacancy there are three candidates and one of them is excluded at the first count and the other two candidates continue and secure in the second count an equal number of votes. then the one who had dte lower number of votes in the first count shall be excluded. Determination by lot in case of equality of votes is neither a principle of universal application nor is it a common law principle. It is only permissible when there is a specific statutory provision to that effect. In the absence of such a statutory provision the method of decision by lot is not resorted to when there is another rational method. The principle of decision by lot is dependent on chance and accident whereas the principle of exclusion with reference to difference of vote~ on the original count is based on reason and legislative principles.\n\nThe principles of exclusion are not to be found in any statutory enactment in the present case. On the other hand there is the support Of legislative measures embodying the principle of exclusion by reference to original count [6050, H; 606A-C]\n\n(a) Rule 75(4) of the Conduct of Election Rules indicates that wht-n two or more candidates have been credited with the same value and stand lowest on the poll the candidate for whom the lowest number of original\n\nSUPRBME cou,... [1971] SUPP. s.c.R.\n\nvotes are recorded shall be excluded.\n\nThe rule applf..: ·;. :i_en there are tv; o or more candidates and not only when there are more than two candidates. The words 'stand lowest on the poll' qualify 'two or more candidates \\vho have been credited with the same value'. The High Court overlooked the rational of the principle embodied in this rule that in the case of two continuing candidates each having the same value of votes to fiU in one vacancy the tie between the two would be resolved by having regard to their original votes in the first count. [604B, F]\n\n(b) Rule 6 in the Schedule to the Presidential and VicePresidential Election Rules, 1952, and Statute No. 158 framed under the Poona University Act, though it does not in terms apply to the election of a Vic~-Chan\n\ncellor, also embody this prjnciple. [603B]\n\n(c) The High Court's reliance on r. 81(13) of the Conduct of Elec tion Rule, 1961, in support of the conclusion that the only system of exclusion in a case of the present type should be by lot is erroneous. Tlie principle in r. 81(3) applies only where more than one seat is to be filled and only one vacancy remains unfilled with only two continuing candidates and each of them has the same value of votes at that count. [605C]\n\n(d) The defeated candidate himself made a petition to the Chancellor under s. 60 of the Act, which provides that if any question arises as to whether a person bas been duly elected the matter may be referred to the Chancellor whose decision shall be final, not to confirm the election. The Court of the University has thus laid down its own procedure for correction. When there is discretion to choose between two principles of exclusion, this Court would not command the University to exercise the discretion in a specific way. [606E]\n\n(2) The four colleges were in fact affiliated before the date of election but there was delay in the publication of the notification.\n\nSuch delay would not detract from the sanction previously granted. [607 A]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 5 of 1971.\n\nAppeal from the judgment and order dated December 18, 21; 1970 of the Bombay High Court in Special Civil Application No.\n\nF 1583 of 1970.\n\nS. J. Sorabeje, M. 0. Chi11oy, J. R. Gagrat, aild B. R. Agar wala, for the appellants.\n\nV. S. Desai and S. B. Wad, for the respondents Nos. 1, 2, 4 and 7.\n\nThe Judgment of the Court was delivered by\n\nRay, J.-This is an appeal by certificate under Article 133(1)\n\n(c) of the Constitution from the judgment dated 18 and 21 Decem ber, 1970 of the Bombay High Court.\n\nThe Bombay High Court issued a writ of quo warranto d.eclar ing that respondent No. 3 Dr. Balkrishna Pandurng Apte is not entitled to act as the Vico-Chancellor of the University of Poona\n\nPOONA UNIVERSITY v. S. N. AGESHB (Ray, J.)\n\nis pursuance of the election -held on 9 May, 1970 and further restraining him from acting as the Vice-Chancellor.\n\nH. V. Pataskar, the Vice-Chancellor of the University of Poona died on 21 February, 1970.\n\nThe Governor of Bombay who is the Chancellor of the University then nominated Maha Mahopadhyaya Datto V aman Potdar to act as the Vice-Chancellor until the date on which another Vice-Chancellor was elected under sub-section ([) of section 11 of the Poona University Act, 1948 (hereinafter referred to as the Act).\n\nUnder section 12 of the Act the Vice-Chancellor is the principal executive and academic officer of the University.\n\nUnder section 11 of the Act the Vice-Chancellor shall be elected by the Court from among three persons recommended by the Executive Council.\n\nSection 56 of the Act provides that every election to the office of the Vice-Chancellor and every recommendation for the nomination to the office of the Vice-Chancellor under the Act shall be made by the system of proportional representation by means of a single transferable vote by bal!ot in such manner as may be prescribed by the Statutes.\n\nAt the meeting of the Executive Council held on 28 February, 24 March and 18 April. 1970 the Executive Council recommended a panel of three persons.\n\nThey were Dr. Balkrishna Pandu rang Apte, Principal Narayan Ramchandra Kulkarni and Principal Narhar Govind Suru for election to the office of the Vice-Chancellor.\n\nThese were the three candidates from amongst whom the Court of the University had to elect one as the Vice-Chancellor.\n\nThe said meeting of the Court of the University was convened under notice dated 22 April, 1970 for 9 May, 1970 for election of the Vice-Chancellor from amongst those three persons.\n\nAt the election held on '9 May, 1970 the total number of votes tendered was 149.\n\nOne of the votes was invalid.\n\nThe valid votes were 148.\n\nThe election was in accordance with section 56 of the Act by the system of proportional representation by 11\\eans of a single transferable vote by ballot.\n\nThe result of the ballot papers appeared to be that Dr. Apte secured 58, Principal Kulkarni 37 and Principal Suru 53 first preference votes.\n\nPrincipal Kulkarni was thus eliminated on the first count on the basis of the lowest number of first preference votes. 8 of the voters who had given first preference votes to Principal Kulkarni had not exercised second preference in favour of either of the remaining two candidates Dr.\n\nAptc and Principal Suru.\n\nThe remaining 29 voters gave 12 second preference votes to Dr. Apte and 17 second preference votes to Principal Suru.\n\nThis resulted in both the continuing candidates Dr. Apte and Principal Suru each securing 70 votes on\n\nthe second count.\n\nDr. Apte was declared elected because in the first count, namely, the count previous to the one in which both obtained equal number of votes.\n\nDr. Apte had a clear majority of 5 votes and therefore Principal Suru was excluded from the election.\n\nThe election of Dr. Apte was challenged in the High Court on three principal grounds.\n\nFirst, it was contended that the tie between Dr. Apte and Principal Suru at the second count was to be resolved by drawing of lots, because it was the ordinary practice in elections held under the system of proportional representation by means of a single transferable vote by ballot for election to a single seat that the tie of the above kind must be resolved by drawing of lots.\n\nSecondly, it was said that the Principal of four Colleges, v1'z. N. D. M. V. P. Samaj's Arts and Commerce College, Sinnar; V. P. Mandal's Arts, Science and Commerce College, Thana; Narhar Balwant Thakur Law College, Nasik and G. E. Society's College for Education, Sangamner which had not been duly affiliated at the date of the election had acted and voted at the election as members of the Court, and, therefore, the votes given by the members of those four colleges were invalid. Thirdly, it was contended that the meeting for the election of the panel of respondents Dr. Apte, Principal Kulkarni and Principal Suru for election to the office of the Vice-Chancellor was an invalid meet ing and therefore the election was void.\n\nThe High Court upheld the first contention and rejected the other two.\n\nThe High Court held that when upon final count the continuing candidates Dr. Apte and Principal Suru secured equal majority of valid votes the system of proportional representation by means of a single transferable vote by ballot never aimed t 1 excluding one of such continuing candidates by reference to any of the previous counts and I or of original vote. The High Court held that where only two continuing candidates remained to fill up only one vacancy and both of them had the same number of votes the tie of votes between the two continuing candidates was to be solved by the principle of decision by lot G\n\nSection 56 of the Act speaks both of election to the office of the Vice-Chancellor or any authority of the University by the ys tem of proportional representation by means of a single transferable vote by ballot in such manner as may be prescribed by the Statutes. The authorities of the University are mentioned in section 15 of the Act.\n\nThe Vice-Chancellor is not one of the authorities mentioned there.\n\nThe Vice-Chancellor is one of the officers of the University.\n\nThe officers of the University are mentioned in section 8 of the Act.\n\nPOONA UNIVERllITY v. B. N. AGESHE (Ray, J.)\n\nSection 18 of the Act contemplated making of Statutes. Statutes No. 142 to 165 are the relevant Statutes for elections to authorities.\n\nThese Statutes do not apply lo election of Vice-Chancellor because he is not an authority.\n\nThe system of election by proportional representation by means of a single transferable vote by ballot is the prescribed system of election to authorities.\n\nThe relevant Statute for election to authorities on which counsel for the appellants relied is Statute No. 158 in support of the proposition that it embodied the rule of exclusion of one of the two continuing candidates both of whom secured equal number of votes in the second count by reference to the principle as to which of the two continuing candidates had the lowest number of votes at the first count.\n\nThere is no doubt that Statute No. 158 does not in terms apply to the election of Vice-Chancellor but it is manifest that Statute No. 158 embodies a rule of exclusion of one of the candidates at the second count on the ground that that candidate had the lowest number of votes at the first count.\n\nElection by proportional representation by means of a single transferable vote by ballot is often described as the Hare system of proportional representation named after the English political reformer Thomas Hare.\n\nThis system of election is based on a quota determined by the following formula. The total votes cast is divided by the number of seats to be filled plus one, and one is added to the quotient.\n\nIf 100.000 votes are cast and 4 seats are to be filled, divide by 5 to get a quotient of 20,000 then add 1 to get 20,001, which is the quota.\n\nA candidate receiving the quota of first-choice of votes is elected.\n\nUnder this system electors express first, second. third or additional choices according to the number of candidates. An elector does not waste his vote. If the candidate for whom he has expressed his choice, does not need his vote, the surplus votes are distributed in accordance with the indicated second choices among candidates whose quotas have not been filled.\n\nIf enough candidates are not elected by this process the candidate with the smallest number of choices is then excluded and his votes are distributed in the same way.\n\nThis process of exclusion or elimination goes on until enough candidates have filled their quotas or until the successive eliminations have left no more than enough to fill the vacancies.\n\nIn working out the method of election in the present case, it has to be noticed whether the manner in which Principal Suru has been excluded at the second count and Dr. Apte has been declared elected at the second count is a principle of exclusion which has been recognised in the system of proportional representation by means of a smgle transferable vote by ballot.\n\nCounsel for the appellants contended that there was legislative recognition of this principle in three cases.\n\nThe first is rule 75 of the Conduct of\n\nElections Rules, 1961.\n\nThe second is rule 6 in the Schedule to the Presidential and Vice-Presidential Elections Rules; 1952. The third is Statute No. 158 in the Statutes of the Poona University Act. - Rule 75 of the Conduct of Elections Rules is applicable in the case of counting of votes where only one seat is to be filled.\n\nThe two sub-rules of Rule 75 on which reliance was placed by counsel for the appellants for the legislative recognition of the principle of exclusion are (3) and (4) which are as follows :-\n\n\"(3). If, at the end of any count, no candidate can be declared eleeted, the returning officer shall-\n\n(a) exclude from the poll the candidate who up to that stage has been credited with the lowest value;\n\n(b) examine all the ballot papers in his parcel and sub-parcels, arrange the unexhausted papers in sub-parcels according to the next available preferences recorded thereon for the continuing candidates. count the number of papers in each sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-oarcel to that candidate. and make a separate sub-parcel of all the exhausted papers; and\n\n(c) see whether any of the continuing candidates has, after such transfer and credit, secured the quora.\n\n(4) If, when a candidate has to be excluded under clause (a) of sub-rule (3), two or more candidates have been credited with the same value and stand lowest on the poll, the candidate for whom the lowest number of original votes are recorded shall be excluded, and if this number als<> is the same in the case of two or more candidates the returning officer shall decide by lot which of them shall be excluded\".\n\nSub-rule (4) indicates that if when a candidate has to be excluded two or more candidates have been credited with the same value and stand lowest on the poll the candidate for whom the lowest number of original votes are recorded shall be excluded. In the present case at the first count Principal Kulkarni was excluded because he received the lowest number of votes on the first count.\n\nAt the second count Dr. Apte and Principal Suru were the two continuing candidates. Of these two one had to be excluded.\n\nTherefore the principle of exclusion is that the candidate for whom the lowest number of original votes are recorded shall be excluded.\n\nThe original first preference votes indicated that Dr. Apte\n\nPOONA UNIVERSITY V. S. N. AGESHE (Ray, J.)\n\nhad 58 votes and Principal Suru had 53 votes.\n\nTherefore, Dr.\n\nApte had larger first preference votes.\n\nThe other part of sub-rule\n\n(4) of rule 75 is that if both at the first count and at the second count they had equal number of votes then one of them was to be excluded on the principle of decision by lot.\n\nRule 6 in the Schedule to the Presidential and Vice-Presidential Elections Rules, 1952 on which counsel for the appellants relied embodied the same principle hich is as follows : -\n\n\"If, when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that caudiate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates, decide by lot which of them shall be excluded\".\n\nStatute No. 158(3) on which counsel for the appellants relied is as follows : -\n\n\"If, when a candidate has to be excluded, two or more candidates have each the same number of votes, and are lowest on the poll, the candidate with the lowest number of votes at the first count at which the candidates in question have an unequal number of votes shall be excluded and, when the number of votes credited to the candidates are equal at all counts, the Registrar shall determine by lot who shall be excluded\".\n\nThese provisions were referred to and relied on by counsel for the appellancy only for the limited purpose of establishing that where two continuing candidates at the second count have equal number of votes in the second count and there is one vacancy to be filled up the candidate who had the lower number of votes at the first count shall be excluded.\n\nThe High Court held that the words \"two or more candidates\" and the other words \"stand lowest on the poll\" in rule 75(4) of the Conduct of Elections Rules indicated that the principle embodied in that rule would apply only where the contest continued between three and more continuing candidates and the question could not arise when the contest was only between two candidates left over as continuing candidates. The other reason given by the High Court was that when there were two continuing candidates they could never stand lowest on the poll and the two candidates, according to the High Court, could stand lowest on the poll\n\nonly if there were other remaining or continuing candidates with larger and better value of votes. The interpretation of rule 75(4) by the High Court is erroneous. The rule itself speaks of two or more candidates and does not speak of more than two candidates as the High Court construed it. The words \"stand lowest on the poll\" occur along with two or more candidates who have been credited with the same value. It is because they have tlie same value that both of them stand lowest on the poll. There\" fore, rule 75(4) resolves that tie by adopting the principle of exclusion of one of the candidates with regard to the number of original votes at the first count.\n\nThe High Court held that the principle in rule 75(4) would not apply in the present case with only two continuing candidates for filJing in one vacancy because there would be no possibility of transfer of the excluded candidate's votes in favour of the other candidate. The High Court therefore relied on rule 81(3) of the Conduct of Elections Rules, 1961 to support the conclusion that the only system of exclusion in a case of the present type would be decision by lot.\n\nRule 81(3) is as foliows : -\n\n\"When at the end of any count only one vacancy remains unfilled and there are only two continuing candidates and each of them has the same value of votes and no surplus remains capable of transfer, the returning officer shall decide by lot which of them shall be excluded; and after excluding him in the manner aforesaid, declare the other candidate to be elected\".\n\nThe High Court overlooked the rational of the principle embodied in rule 75(4) that in the case of two continuing candidates each having the same value of votes to fill in one vacancy the tie between the two would be solved by having regard to their original votes in the first count.\n\nThere would be no occasion for transfer of excluded candidate's votes in such a contingency.\n\nWhere two or more candidates continued for one vacancy and eaoh\n\nof the candidates would have the same value of votes at the end of a count the tie between the two or more candidates having equality of votes would be solved by excluding the one who had the lowest number of votes on the first count and thereafter the excluded candidate's second choice would be transferred to the continuing candidates until the vacancy would be filled up by the principle of exclusion embodied in rule 75(4).\n\nThe principle in rule 81(3) is applicable where more than one seat is to be filled and only one vacancy remains unfilled with only two continuing candidates and each of them has the same\n\nPOONA UNIVERSITY V, S. N. AOESHE (Ray, J.) 60&\n\nvalue of votes at that count.\n\nIn such a case the exclusion of one of the candidates is decision by lot.\n\nThe reason for decision by lot in rule 81(3) is that the two continuing candidates by reason of the transferred votes at the last count have the same value of votes.\n\nThe values of their votes in the previous counts have already been worked out by rule 80(7) of the Conduct of Elections Rules, 1961 which embodied the principle of exclusion of a candidate where two or more candidates have the same value of votes by having regard to the original votes of each candidate and excluding the candidate for whom fewest original votes are recorded.\n\nThe principle of Rule 81(3) does not apply to the present case because that rule applies to counting of votes where more than one seat is to be filled.\n\nThis is not the case here.\n\nRule 81(3) resolves tie on count of votes between the last two contesting candidates at the last count on transfer of votes from the previous count.\n\nIt is an established principle in the system of proportional representation by means of a single transferable vote by ballot that where for one vacancy there are three candidates and one of them is excluded at the first count and the two candidates continued and in the second count both of them have equal number of votes then one of the two candidates who had the lower number of votes than the other continuing canddate in the first count shall be excluded.\n\nThe present election was held on this principle.\n\nSection 56 of the Act only speaks of election by the system of proportional representation by means of a single transferable vote.\n\nIt cannot be said in the present case that there is any statutory infringement of election by the system of proportional representation by means of a single transferable vote.\n\nThe two rival contentions were that according to the University authorities Principal Suru was to be excluded at the second count because his votes on the original count were lower than that of Dr. Apte whereas according to the persons who impeached the election the only method of exclusion was decision by lot.\n\nIt appears that there is legislative sanction in support of the contention on behalf of the University authorities that resolving equality of votes by reference to first preference or original votes is a known recognised method in the system of proportional representation by means of a single transferable vote.\n\nEven if Statute No. 158 of the Poona University does not in terms apply, Statute No. 158 furnishes a valuable guide regarding the working of the system of proportional representation mentioned in section 56 of the Act and principles analogous to Statute No. 158 are applicable and have been applied by the authorities who conducted the election in the present case.\n\nDetermination by lot in case of equality of votes in neither a principle of universal application nor is it a common law principle.\n\nSUPRBMB COURT REPORTS [1971] SUPP. s.c.R.\n\nIt is only permissible when there is a specific statutory provision to that effect.\n\nIn the absence of a statutory provision the method of decision by lot is not resorted to when there is other rational method.\n\nThe principle of decision by lot is dependent on chance and accident whereas the principle of exclusion with reference to difference of votes on the original count is based on reu:, '-· ... '. legislative principles.\n\nIn the present case the Statute imposed a duty of election by the system of proportional representation by means of a single transferable vote.\n\nThe principles of exclusion are not to be found in any statutory enactment in the present case.\n\nOn the one hand there is the support of legislative measures embodying the principle of exclusion by reference to original count.\n\nThe principle of exclusion by lot on the other hand is adhered to only if the Statute has a compelling force to that effect.\n\nIn the present case there is no such statutory compulsion of deciding by lot in the eventuality which happened. If there are two principles of exclusion and the authority has a discretion in the mode of performing the duty, the authority cannot be commanded to a duty in a specific way (See Halsbury's Laws of England, Third Edition, Vol. 11, Para. 160, page 85).\n\nThe election was held by the continuing Vice-Chancellor. The Court of the University was master of its own procedure. It adopted one of the principles of exclusion by reference to votes on the original count.\n\nIn following that procedure it cannot be said that there is violation of statute. It is not out of place to mention here that Principal Suru himself made a petition to the Chancellor under section 60 of the Act asking him not to confirm the election.\n\nUnder section 60 of the Act if any question arises as to whether a person has been duly elected or appointed the matter may be refer red on a petition to the Chancellor who shall decide the question and his decision shall be final. We are not basing our decision on the finality of the decision of the Chancellor in the present case but this is a feature which is not to be lost sight of by reason of the fact that the candidate who lost at the election made representation for redress of his grievances to the Chancellor.\n\nCounsel on behalf of the respondents repeated the contention which had been advanced in the High Court that Principals of 4 unaffiliated Colleges attended the Court meeting and therefore the election was bad.\n\nThe High Court rightly rejected that contention.\n\nThere is evidence to show that in the month of June, 1969 the Government sanctioned the recommendation of the University for affiliation of these Colleges to the University.\n\nThe affiliation was for three years from 1969.\n\nIn these orders it was stated that the final Government notification would be issued after the University submitted a report to the Government of fulfilling the conditions.\n\nThe respondents' contention was that the notification was publish ed after the month of May, 1970. The High Court rightly held\n\nPOONA UNIVERSITY v. S. N. AOESHE (Ray, J.)\n\nthat the sanction was granted by the Government.\n\nDelayed publication of the notification would not detract from the sanction previously granted.\n\nThe third contention which had been urged in the High Court was not pressed here.\n\nFor these reasons, we accept the appeal and set aside the judgment of the High Court. Each party will pay and bear its own costs in this Court.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 28, "entities": [{"text": "UNIVERSITY OF POONA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "UNIVERSITY OF POONA & ORS", "offset_not_found": false}}, {"text": "SHANKAR NARHAR AGESHE & ORS", "label": "RESPONDENT", "start_char": 28, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "SHANKAR NARHAR AGESHE & ORS", "offset_not_found": false}}, {"text": "l\\t. 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BHARGAVA, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "II of the Poona University Act, 1948", "label": "STATUTE", "start_char": 425, "end_char": 461, "source": "regex", "metadata": {}}, {"text": "Schedule to the Presidential and VicePresidential Election Rules, 1952", "label": "STATUTE", "start_char": 3650, "end_char": 3720, "source": "regex", "metadata": {}}, {"text": "Conduct of Elec tion Rule, 1961", "label": "STATUTE", "start_char": 3941, "end_char": 3972, "source": "regex", "metadata": {}}, {"text": "s. 60", "label": "PROVISION", "start_char": 4396, "end_char": 4401, "source": "regex", "metadata": {"linked_statute_text": "the Conduct of Elec tion Rule, 1961", "statute": "the Conduct of Elec tion Rule, 1961"}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 5514, "end_char": 5528, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 6301, "end_char": 6311, "source": "regex", "metadata": {"statute": null}}, {"text": "Poona University Act, 1948", "label": "STATUTE", "start_char": 6319, "end_char": 6345, "source": "regex", "metadata": {}}, {"text": "section 12", "label": "PROVISION", "start_char": 6391, "end_char": 6401, "source": "regex", "metadata": {"linked_statute_text": "the Poona University Act, 1948", "statute": "the Poona University Act, 1948"}}, {"text": "section 11", "label": "PROVISION", "start_char": 6507, "end_char": 6517, "source": "regex", "metadata": {"linked_statute_text": "the Poona University Act, 1948", "statute": "the Poona University Act, 1948"}}, {"text": "Section 56", "label": "PROVISION", "start_char": 6643, "end_char": 6653, "source": "regex", "metadata": {"linked_statute_text": "the Poona University Act, 1948", "statute": "the Poona University Act, 1948"}}, {"text": "section 56", "label": "PROVISION", "start_char": 7781, "end_char": 7791, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 56", "label": "PROVISION", "start_char": 10732, "end_char": 10742, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 11048, "end_char": 11058, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 11251, "end_char": 11260, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 11319, "end_char": 11329, "source": "regex", "metadata": {"statute": null}}, {"text": "Elections Rules, 1961", "label": "STATUTE", "start_char": 14278, "end_char": 14299, "source": "regex", "metadata": {}}, {"text": "Schedule to the Presidential and Vice-Presidential Elections Rules, 1952", "label": "STATUTE", "start_char": 17026, "end_char": 17098, "source": "regex", "metadata": {}}, {"text": "Conduct of Elections Rules, 1961", "label": "STATUTE", "start_char": 20053, "end_char": 20085, "source": "regex", "metadata": {}}, {"text": "Conduct of Elections Rules, 1961", "label": "STATUTE", "start_char": 22083, "end_char": 22115, "source": "regex", "metadata": {}}, {"text": "Section 56", "label": "PROVISION", "start_char": 23205, "end_char": 23215, "source": "regex", "metadata": {"statute": null}}, {"text": "section 56", "label": "PROVISION", "start_char": 24338, "end_char": 24348, "source": "regex", "metadata": {"statute": null}}, {"text": "section 60", "label": "PROVISION", "start_char": 26378, "end_char": 26388, "source": "regex", "metadata": {"statute": null}}, {"text": "section 60", "label": "PROVISION", "start_char": 26447, "end_char": 26457, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_608_633_EN", "year": 1971, "text": "D. N. CHANCHALA v.\n\nSTATE OF MYSORE AND ORS. ETC. (with co1U1ected petitions) May 3, 1971\n\n[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.]\n\nMysore Medical Colleges (Selection fbr Admission) Rules 1970- -Scope of Government's rule making power-Rules in University Acts laying down qualifications for admission do not deprive Government of power to rt gulate admission to i'ts own medical colleges affiliated to the Universities- University-wise distribution of seats under r. 9(1) not violative of .A.rt. 14 of Constitution-Setting apart of certain number of seats under r. 4 and reservation of seats under r. 5 whether excessive-Whether violative of Art. 15(4) of Constitution-Requirement of 10 years residence in state under r. 3-Jntermittent residence does not satisfy rule-Classification of children of political sufferers under r. 4(h) whether a reasonable classification- 1erm 'political sufferer' whether. vague.\n\nConstitution of India 1950-Rule 9(1) of Mysore Medical Colleges (Selection for Admission) Rules 1970 whether violates Art. 14-Rules 4 tind 5 whether make excessive reservation-Whether Violative of Art. 15(4)- Rule 4(h) making reservation in favour of children of 'political suf}ereri whether discriminatory.\n\nThe Government of Mysore State conducts four medical colleges tv.•o of which are affiliated to the Universities of Mysore and Bangalore, the other two being affiliated to Karnatak University. C passed her pro-university course examination from Bangalore University with 67 % marks in optional subjects, namely Physics, Chemistry and Biology. She then passed the B.Sc. Part I examination of Karnatak University, Under the Ordinances of the Karnatak University, she was entitled to be admitted to the M.B.B.S. course of Karnatak University. However the Selection Committee formed under the Mysore Medical Colleges (Selection for Admission) Rules\n\n1970 did not select her for admission to that course because of Rule 9 of the said Rules under which preference for admission to a medical college run by a University was given to students who had passed the P.U.C.\n\nExamination of the same University and only 20% of the seats were avail\n\nable to those passing the P.U.C. Examination of other Universities. C filed a writ petition under Art. 32 of the Constitution on the following contentions: (1) that once the petitioner was eligible for admission to a medical college affiliated to the Karnatak University according to the Ordinances of that University, the State Government could not make rules, the effect of which was to deprive her of admission; (2) that the university-wise distribution of seats provided under r. 9(1) was discriminatory and being without any rational basis violated Art. 14 of the Constitution; (3) that the reservation of seats under rr. 4 & 5 for the various categories of per sons set out therein was far more excessive than permitted by the decisions of this Court and was in violation of Art. 15(4).\n\nV passed her P.U.C. examination from a government college affiliated to Venkateshwar University in Andbra Pradesh with Physics, Chemistry and Biology as her optional subjects, securing in those subjects 150 out of 200 marks i.e. 75')(,. On July 1970 she made an application for selection\n\nD. N. CHANOHALA v. MYSORE (She/at J.) 609\n\nto a seat in in any one of the medical colleges affiliated to Karnatak Uni- A versity. The Selection Committee did not include her in the list o~ selected candidates arid the reason given was that she was not a resident of the State of Mysore for not less than 10 years at any time prior to the date of the application for a seat as required by r. 3 of the Mysore Medical Colleges (Selection for Admission) Rules 1970.\n\nIn this connection the petitioner filed a certificate from the Tahsildar, Bellary that she had resided in the State of Mysore for a period of 10 years before her applicatiod. 1 B It was further stated on her behalf that though she had left the State of Mysore on the transfer of her father to Andhra Pradesh before she was ten years old, she had continued to come and reside at her family house in the State of Mysore during her vacations. •\n\nJ. challenged the validity of r. 4(h) of the aforesaid Rules on the ground that the reservation for children of 'political sufferers' made therein was not valid under the constitution.\n\nHeld: (i) So long as the rules for selection applicable to the medical colleges run by Government do not suffer from any constitutional or legal infirmity, they cannot be challenged as the Government can regulate admission to its own institutions. The objection that it cannot by such rules, provide for requirements over and above those laid down by the univer sities for eligibility, cannot be sustained. [617DE]\n\n(ii) Since the universities are set up for satisfying the educational needs of different areas where they are set up and medical colleges are establish ed in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universj .. ties. There is nothing undesirable in ensuring as has been done under r. 9 (I) that those attached to such universities have their ambitions to have training in specialised subjects like medicine satisfied through colle11es attached to their own universities. Such a basis for selection bas not the disadvantage of districtwise or unitwise selection as any student from any part of the state can pass the qualifying examination in any of the three universities irrespective of his place of birth or residence.\n\nFurther the rules confer a discretion on the selection committee to admit outsiders upto 20o/o of the total available seats in any one of these colleges i.e. those who have passed the equivalent examination held by any other university not only in the state but also elsewhere in India. It was therefore impossible to say that the basis of selection adopted in those rules would defeat the object of the rules as was said in Rajendran's case. [619E620C]\n\nThe rules lay down a valid classification. Candidates passing through the qualifying examination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies.\n\nThe rules therefore cannot justly be attached on the ground of hostile discrimination or as being other. wise in breach of Art. 14. [620G-621A]\n\n(iii) Setting apart' ~O seats der r. 4 is ot a r~:vation but laying down sources for selection necess1ated by cer.ta1n ovcrrldmg considerations such as obligations towards those who serve the interest of the country'; security, certain reciprocal obligations and the like. The reservation under r. S though apparently appearing on the high side, not having been shown as unreasonably excessive the contention in regard to it must fail. [622BJ\n\n39-1 S.C. India/71\n\n~.10\n\nStJPRBMB COURT llEPOllTS (1971] SUPP. S.C.Jl,\n\n(iv) The residence contemplated by r. 3 must prima facie have an el•· ment of continuity or regularity in residence and would not mean an intermittent stay such as during the vacations.\n\nIt would thus appear that V did not, withstanding the certificate of residence issued by the Tehsildar, comply with the requirement of 10 years residence under r. 3.\n\nHowever the percentage of 7'5 % marks claimed by the petitioner was only in respect of optional subjects. Her aggregate marks were only' 65 % as compared to 65 6% obtained by the student last selected and on the basis of this percentage her application was rightly rejected. It was therefore not neces sary to go into the facts relating to the petitioner's residence in Mysore State or the validity of r. 3. [624BF, G:Hl\n\n(v) Per Shela! & Bhargava, JJ. (Dua 1. dissenting)\n\nThe definition of 'political sufferer' in r. 4(h) is in clear and unambi guous language, besides containing sufficient details so as to distinctively identify the persons who would fall within it. The person must have suf fered incarceration, whether as imprisonment or detention, for a period of at least six months or been awarded capital punishment, or must have died while actually in detention or undergoing imprisonment, or killed or incapacitated permanently by firing or lathi charge by the police or by the military, or must have lost employment, property, or means of livelihood. These should have been the consequences of his having participated in the national movement for the emancipation of India. There Was thus no ambiguity in the definition of politi.al sufferer which would result in discrimination in administering the rule. [626FH]\n\nIt is not unreasonable to extend the principle on which Art. 15 (4) is based to the children of political sufferers who in consequence of their participation in the emancipation struggle became unsettled in life, in some cases economically ruined, and were therefore not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from thnt disadvantage. If that be so, it must follow that the definition of 'political sufferer' not only makes the children of such sufferers distinauishablo from the rest but such classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and just distribution of seats.\n\n[629G630C]\n\nPer Dua, 1. The object of selection for admission to the medical col leges, considered in the light of the directive principles of State policy contained in our Constitution appears to be to select the best material from amongst the candidates in order not only to provide them with ade. quate means of livelihood, but also to provide the much needed medical aid to the pleop!e and to improve public health generally. It cannot be con fidently said that there is a reasonable nexus between the differentia on which the children of political sufferers are classified as a distinct group and tho object of admission to the Medical Colleges. In view however of the admitted fact that the marks obtained by J were lower than the marks secured by the last candidate admitted from the category of the children of political sufferers, the petitioner was not entitled to claim admission, even if the children of political sufferers were not given any priority. On this ground alone the petition of J deserved to be dismissed. Accordingly it was unnecessary to go into the question of the invalidity of r. 4(h) in this case. [632FHJ\n\nIn view of the above findings the writ petitions must be dismissed.\n\nRajendran v. Madras, [1968] 2 S.C.R. 786, Periakaruppan v. Tamil Nadu, W.P. 285 and 314 of 1970, decided on Sept. 23, 1970 and Balaj/ v.\n\nMysore, [1963] Supp. 1 S.C.R. 439, distinltlished.\n\nD. N. CHANCHALA •• 'MYSOl\\ll (Shelat, J.) 611\n\nAndhra Pradesh v. Lavu Narendranath, C.As. 2161-A and 2161B of A 1970, decided on Feb. II, 1971 and Chitra Ghosh v. Union of India, [1970) 1 $.C.R. 413, applied.\n\nSurendrakumar v. State, A.I.R. 1969 Raj. 182, Umesh Chandra v. V.\n\nN. Singh, [1967) 1.LR. 46 Pal 616, Kerala v. Jacob, A.l.R. 1964 Ker. 316, Ramchandra v. State, Al.R. 1961 M.P. 247, Subhashini v. State, A.I.R. 1966 Mys. 40 and Anil Kumar v. Mysore, (1969) 17 L.R. (Mysore) 110, refer- ~~ B\n\nORIGINAL JURISDICTION : Writ Petitions Nos. 618 to 622 of 1970.\n\nPetitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.\n\nLakshmlnarasu, Vineet Kumar and Bindra Thakur, for the C petitioners (in W. P. Nos. 618 and 620 to 622 of 1970).\n\nS. K. Venkataranga, Shyamala Pappu, Vineet Kumar and Bindra Thakur, for the petitioner (in W. P. No. 619 of 1970).\n\nNiren De, Attorney-General, R. C. Mahindra and S. P. Nayar, for respondent Nos. 1 and 2 (in W. P. Nos. 618 and 620 to 622 D of 1970).\n\nSunder Swami, Advocate-General, Mysore and S. P. Nayar for respondent Nos. 1 and 2 (in W. P. No. 619 of 1970).\n\nR. B. Datar, for intervener (in W. P. No. 621 of 1970).\n\nThe Judgment of J. M. SHELAT and v. BHARGAVA, JJ. was delivered by SHELAT, J. I. D. DUA, J. gave a partly dissenting Opinion.\n\nShelat, J'.-These five petitions have been filed by candidates who failed to be selected for admission in Government Medical colleges in the State of Mysore and challenge the validity of the Selection Rules framed by the Government. Since they raise common questions, it is expedient to deal with them together and dispose them of by a common judgment. Writ petition No. 619 of 1970, we were told by counsel, is the most comprehensive of them all and therefore we shall deal with 1t first and as typical of the rest. As the rest of the petitions raise the same questions, it is not necessary to deal with each of them separately. Writ petitions Nos. 621 and 622, however, raise certain additional questions which will be dealt with to that extent separately.\n\nWrit Petition Ne. 619 of 1970\n\nThe petitioner in. thiB Writ Petition passed the Secondary School Leaving exruninati9n in March 1968 obtaining first class marks. In March 1969, she passed the Pre-University Course\n\nSUPRl!ME COURT REPORTS. (1971 SUPP. s.c.R.\n\nExamition _held by he Bangalore Uversity scuring 67 % marks m optional sub1ects, namely, Physics, CheIDistry and Biology, and 71 % marks in the aggregate. Her father having retired at Dharwar, she prosecuted her further studies for B.Sc. Part I examinailion in the Karnatak Science College, Dharwar, a college afliliated to the Karnatak University. She passed the B.Sc. Part I examination held by that University securing once again :i first class.\n\nUnder Ordinance 144(c) of the Karnatak University, a student having passed the B.Sc.\n\nPart I examination with Physics, Chemistry and Biology as his optional subjects would be a eligible for admission to a medical course provided he has obtained the minimum marks prescribed for admission to that course from time to time.\n\nThe petitioner having obtained first class marks in the B.Sc. Part I examination was, therefore, eligible for admission to the medical course in the medical colleges affiliated to that University.\n\nThere are three universities in Mysore State, namely, Karnatak, Mysore and Bangalore universities. All the three universities hold pre-university course examination, the passing of which makes a student eligible for admission to courses leading to university degrees.\n\nBut, whereas the Karnatak Oniversity requires the passing of B.Sc. Part I examination leading to M.B.B.S. as the minimum qualification for being eligible for medical course, the other two universities require the passing of what is c.illed the Pre-Professional examination, which is equivalent to B.Sc.\n\nPart I leading to M.B.B.S. degree of the Karnatak University.\n\nThe State of Mysore conduots four medical colleges ; the Government Medical College at Mysore, which is affiliated to the Mysore University, the Government Medical College at Ilangalore, which is afliliated to the Bangalore University, and the Karnatak Medical College at Hubli and the Government Medical College at Bellary, whkh are afliliated to the Karnatak University.\n\nAll the four medical colleges together have 765 seats in the aggregate.\n\nBesides these four institutions, there are also private managed medical colleges at Manipal, Davangere, Belgaum and Gulbarga with 120 seats in each of them, admission upto 10% therein being under the control of the Government.\n\nThe State Government has framed rules. called the Mysore Medical Colleges (Selection for AJmissionJ Rules, 1970 regulating admission to Government medical colleges and for a certain number of seats specified therein in each of the said private medical colleges.\n\nUnder these rules, the selection for admission to the Government medical colleges as also for the seats under the control of the Government iin other colleges is entrusted to a selection committee constituted by the Government.\n\nD. N. CHANCHALA v. MYSORE (She/at, J.)\n\nInaccordance with the said ruloo, the petitioner applied to the selection committee for admission to any one of the medical colleges affiliated to the Karnatak University. She was, however, not selected.· For appreciating the reasons why the committee could not select her, one has first to examine the said rules framed by the Government.\n\nThese rules are annexure '3' to the writ petition. Under r. 1(2), these rules are to apply for selection for admission to the Pre-Professional/B.Sc. Part I Course leading to M.B.B.S. in the said Government medical colleges and to 59 seats in the aggregate in the four private medical colleges mentioned therein. The expression \"the Pre-Professional/B.Sc. Part 1 Course leading to M.B.B.S.\" has been used in sub-r. (2) of r. 1 to mean Pre-Professional course in Bangalore and Mysore universities, and B.Sc.\n\nPart I course leading to M.B.B.S. in the Karnatak University.\n\nThe scheme under the rules Is that on passing the Pre-University Course examination a pupil becomes eligible to apply for admission to the Pre-Professional Course in Bangalore and Mysore universities and to the B.Sc. Part I Course leading to M:B.B.S. in the Karnatak University, the common qualification for eligibility to both the said courses in the three universities being the passing of the P.U.C. examination.\n\nRule 2 prescribes the qualification for eligibility. Under this rule the candidate must. have passed the P.U.C. examination or the XI standard of the Higher Secondary Schools examination of any university established by law in India or of any institution recognized by the State Government, or an equivalent examination with (i) Physics, Chemisl!y and Biology, or (ii) Chemistry, Botany and Zoology as optional subjects, or, as provided by cl. (b), who is a graduate of any univer-· sity with (i) Physics, Chemistry and Biology, or (ii) Chemistry, Botany and Zoology as optional subjects. Such a candidate must have obtained specified percentage of marks and must be within the age limit prescribed by the three universities. Under rule 2, therefore, there are two categories of candidates who only are eligible for selection; (I) those who have passed the P.U.C. exam; nation or an equivalent examination, and (2) those who are graduates, having graduated with the optional subjects specified therein. The petitioner, not being a graduate, fell under the first category of candidates eligible for selection.\n\nRule 2(2) provides that out of the available number of seats, after deducting the number of seats set apan under r. 4, 80% of the seats shall be open for those who have passed the P.U.C. examination and 20% for those who are graduates. Rule 4sets apart in all 60 seats for different categories of persons, namely, students from Union territories and States where . there are no medical colleges, students from relatively less developed Commonwealth countries, cultural scholars and students under T.C.S. of the\n\nSUPREMI COVRT REPORTS (1971] SUPP. s.c.R.\n\nColombo Plan and spec\\aJ Commonwea11A Assistance Plan, students from Nepal, repatriates from Burma, Ceylon, Mozambiquo cbildcen of Defence Personnel and Ex-Defence Personnel, 1; tu: ?ents wo have as.sed L.AM.S. and. L.U.M.S., lady students takmg family planmng programme, children of political sufferers. and lastly. students from Goa. Rule 5 provides that out of the number of ts available for allotment, after deducting the number of seats set apart under r. 4, 15 % shall be reserved for persons belonging to the Scheduled Castes, 3 % shall be reserved for persons belonging to the Scheduled Tribes and 30 % shall be reserved for persons belonging to socially and educationally backward classes. Rule 7(1) provides for the constitution of the Selection Committee, and a. (2) thereof entrusts oo the Commiittee the duty to select candidates possessing the requisite qualification for admission to the said Pre-Professional I B.Sc. Part I Course leading to M.B.B.S. Rules 9 deals with distribution of seats among the several colleges. a. (!) thereof provides .that seats in the general pool shall be distributed university-wise, that is, seats in colleges alliliated to the Karnatak University shall be allotted to\" persons passing from colleges alliliated to that university. and seats in colleges alliliated to Bangalore and Mysore Universities shall respectively be allotted to persons passmg from colleges alliliated to each such university, provided that not more than 20% of the seats in the colleges alliliated to any university may, in the discretion of the Selection Committee, be allotted to students passing from colleges alliliated to any Other university in the State or elsewhere in India. The rest of the rules do not affect the petitioner's case, and therefore, need not be cited.\n\nBrietly, the effect of these rules is that the qualification for selection to the Pre-Professional Course, as it is known in Mysore and Bangalore universities, or B.Sc. Part I Course leading to M.B.B.S. in the Karnatak University, is that the candidate has either passed the P.U.C. examination, or is a graduate having had the aforesaid optional subjects. The selection is to be made by the seleotion committA:e under r. 7(2) for admission to the Pre.\n\nProfessional I B.Sc. Part I leading to M.B.B.S. A student getting admission to tlie aforesaid course has thus to pass the Pre-Professional examination held by the Mysore and Bangalore uni¥ersities, or B.Sc. Part I leading to M.B.B.S. examination held by the Karnatak University. It is only after passing this examinarkm that a candidate can prosecute .the regular M.B.B.S. course. . The common qualification for being selected for the Pro-Professional or B.Sc. Part I leading to M.B.B.S. degree being the pasaing of die P.U.C. munina11on or ct l!eing a: gradulto, pallllin& of B.SC. :f'att I examination by a mden• is ilrelBYaDt. • the mmb coan.., ed for scleclioD dlclBc oblained bf biin cidm\" in P..lJ.C. aam. 1'111tion or Ill& D.S.. aaiam.-. JIB aJrWy stated. r. 2~2> ..\n\no. N. CHANCHALA Y. KYSOllE (She/at, J.)\n\napart upto 20% of the seats for those who are graduates, i.e .. those who have obtained B.Sc. degree.\n\nA student passing the P.U.C. examination or an examination equivalent to that examination can branch off either to (I) Pre-Professional /B.Sc. Part I leading to M.B.B.S .• or (2) B.Sc. degree course. Under the rules no direct admission to M.B.B.S. course is possible because every student wishing to take up that course has first to be selected for the Pre-Professional/B.Sc. Part I leading to M.B.B.S. course and pass the requisite examination in that course.\n\nThough, for the purposes of selection. marks . obtained at the P.U.C. examination or at the B.Sc. examination only are taken into account and the passing of the B.Sc. Part I examination is for that purpose not relevant, there appears to be one advantage to a candidate who has passed B.Sc. Part I examination with the prescribed optional subjects held by the Karnatak University.\n\nThat advantage. as appearing from the additional affidavit filed by the petitioner's father and the correspondence between him and the University authorities, is that such a candidate, if selected, would be directly admitted to the M.B.B.S. degree course in the medical colleges alliliated to the Karnatak University. It is not necessary to say anything about what happens in the other universities since we are for the present not concerned with such a question.\n\nThe second effect of these rules is that if a student has passed the P.U.C. examination held by a particular university, such a student is, by virtue of r. 9(1), eligible for admission in the medical college or colleges alliliated to that university. The Selection Committee, however, has the discretion to allot seats, upto 20% of the seats in the colleges affiliated to a university, to students passing from colleges afliliated o any other university in the State or even elsewhere in India.\n\nConsequently, the petitioner having passed her P.U.C. examination from Bangalore University could apply for admission in a medical college affiliated to that university. If she were to apply for admisSion in a medical college afliliated to the Karnatak University she could ooly be selected ti> a seat from among seats upto the maximum of 20% of seats left in the discretion of the Selection C.Ollllllltee as provided by r. 9(1). It is true that she had got 67% \"marks iD optiaaal lllhjects in the P.U.C. e.amina tion and students with. 1C$Cl' number of marks. but passing from colleges affiliated w the Karnatak UnWeTsity. got admission. But that was because silo had passed the P.U.C. =ination held by the Bangalore University and wanted admission in a medical\n\n6J6\n\nSUPREME COURT REPOR'lll . [1971) SUPP. s.c.R.\n\ncollege affiliated to another university, namely, the Karnatak University.\n\nIn view of this consequence, counsel for the petitioner made three submissions : (!) that once the petitioner was eligible for admission to a medical college affiliated to the Karnatak University according to the Ordinances of that university, the State Government could not make rules, the effect of which was to deprive her of admission (2) that the university-wise distribution of seats provided under r. 9(1) was discriminatory and being without any rational basis violated Art. 14 of the Constitution; and (3) that the reservation of seats under rr. 4 and 5 for the various categories of persons set out therein was far more excessive than permitted by the decisions of this Court and was in violation of Art. 15(4). Consequently, rr. 4 and 5 laying down such reservation should be held invalid.\n\nWe propose to deal with these submissions in the order in which they were placed before us by counsel. As seen earlier, there are two sets of provisions dealing with the teaching of medical courses. The first consists of Ordinances of the universities, and the second consists of the rules framed by the Government for selection of candidates for admission to the Pre-Professional I B.Sc. Part I leading to M.B.B.S. degree. The Ordinances framed by the three universities are made under the different U nivers'ities Acts setting up those universities and under the powers reserved to them under them.\n\nThese Ordinances are made for the purposes set out in tb1se Acts and for carrying out those purposes.\n\nOne of such purposes would be the maintenance of certain academic standards in the various faculties taught in the college affiliated to the universities. For the purposes of maintaining such standards the universities lay down certain minimum qualifications for eligibility for entrance in those faculties.\n\nThese Ordinances and regulations made under the Acts lay down the minimum qualifications required for eligibility and are not to be confused with rules for admission. A candidate may have the minimum qualification so as to make him eligible for entrance in a particular faculty.\n\nThat does not mean that his being eligible necessarily makes him entitled to admission in that faculty, for, admission can only be commensurate with the number of available seats in such a faculty.\n\nThe medical colleges in question are not university colleges but have been set up and are being maintained by the State Government from out of public funds.\n\nSince they are affiliated to one or the other of the three unlversitie~. the Government cannot frame rules or act inconsistently with the ordinances or the regulations of the universities laying down standards of eligibility.\n\nIt is nobody's case that the Government has made rules which are\n\nD. N. CHANCHALA v. MYSORB (She/at, J.) 617\n\nin any way Inconsistent with the rules for eligibility laid down in A such ordinances and regulations.\n\nSince the Government has set up these colleges and maintains them, it has prima facie the power to regulate admission in its own institutions. Counsel for the petitioner pointed out to us no provision from the University Acts which deprives the Gov- B ernment of the power of making rules for admission in its own colleges. That being so, it cannot be said that the Government has no power to regulate admission in its own colleges or that because a student is eligible for admission under the Vniversity ordinances, he automatically gets a right to admission which he can enforce in a court of law.\n\nThe rules are limited to admission to the Pre-Professional/ B.Sc. Part I Course leading to M.B.B.S. degree in the Government medical colleges and in respect of 59 seats in the aggregate In the medical colleges run by private management. The control for admission in respect of the 59 seats in the private colleges must have been acquired by the Government with the consent of or under some agreement with those colleges by reason of their getting financial and other aid from the Government. So long as the rules for selection applicable to the colleges run by the Government do not suffer from any constitutional or legal infirmity, they cannot be challenged as the Government can regulate admission to its own institutions. The objection that it cannot, by such rules, 'provide for requirements over and above those laid down by the universities for eligibility cannot be sustained. (See\n\nA ndhra Pradesh v. Lavu Narendranath (') wherein the earlier decisions on this subject have been examined and followed.)\n\nThe next contention was that r. 9(1), which prescribes university-wise .distribution of seats results in discrimination for it lays down a classification which Is neither based on any intelligible differentia, nor has a. rational nexus with the object of the rules. The argument was that although there is one selection committee for all the Government medical colleges in all the three universities and for the said 59 seats in private colleges, students passing from colleges affiliated to a particular university are first admitted in Government medical colleges afliliated to that university and only seats upto 20% in each of such medical col- 1eges can be allotted to outSiders in the iliscretion of the committee.. The result is that a student having higher marks than the last admitted student is deprived of a seat only for the reason that he had passed his P.U.C. examination from a college afliliated to another university.\n\nAccording to counsel, such a classifica- tion has no rational basis and has no reasonable nexus with and\n\n(I} C. As. 2161-A and 2161-B of 1970, dee. on Feb. 11, 1971.\n\n618 Sl.!1RDIS COVRT REPORTS (1971] Sl.!1P. S.C.R:.\n\nis in fact inconsistent with the very object of establishment of Government medical colleges, namely, to train in medicine the. most meritorio~ aJ!longst the candidates seeking admission.\n\nIn support of this contention counsel relied on Rajendran v ..\n\nMadras (') where rule 8 of the selection rules framed by the- Madras Government was struck down on the ground of its being; violative of Art. 14. Rule 8 provided that the seats available in the general pool, as also those reserved for the socially and edu cationally backward classes would be allotted amongst various districts on the basis of the ratio of the population of each district to the total population of the State. The contention was that distribution of seats districtwise would result in denial of better candidates from being selected and candidates of inferior ' calibre getting selected only because they were born in that district where there were fewer candidates of good calibre. In d~ fence of such a classificaltion, two reasons were urged : (!) that if districtwise classification was not provided, candidates from Madras city would get a larger number of seats in proportion to the population of the State, elbowing out candidates from the districts, and (2) if selection was made districtwise, those selected from a district were likely to settle down as practitioners in that district, so that the districts were likely to benefit from their training.\n\nIt was conceded that Art. 14 permitted classification. But this Court rejected the justification for the aforesaid classification urged by the State on the ground that the first meant that candi dates from the districts, admitted to be of inferior calibre than candidates from Madras city, would stand a better chance of selection, a result defeating the very object of selection, namdy. to get the best candidates, and the second on the ground that it was neither pleaded in the counter-affidavit of the State, nor had the State placed any facts or figures justifying the plea that stu dP.nts selected districtwise would settle down as medical practi tioners in the respective districts where they resided.\n\nIn Periakaruppan v. Tamil Nadu ('), a rule which provided for distribution of seats unitwise and which set up different selection committees for each unit was held to be bad on the ground that it did not d'iffer much from the districtwise distribution stY Venkateswara University, 150 out of 200 marks in optional subjects taken by her, but as her application itself shows, the total number of marks secured by her in that examination were 389 out of 600 marks, i.e., 65 %. Even according to her, the last student who secured selection for the Bellary Medical College had secured 295 out of 450 marks, ~.e., 65.6%. The same percentage of marks was also secured by the last student admitted to the Karnatak Medical College, Hubli, both these students having passed the P.U.C. examition held by the Karnatak Universit}'..\n\nTherefore, even irrespective of the fact whether she had qualtlied herself or not under r. 3, she could not have been selected for either of these two colleges in Karnatak.\n\nThe argument that she had been discriminated against in the sense that though she had secured 7 5 % marks she was not\n\nD. N. CHANCHALA v. MYSORE (Shelat, J.)\n\nselected and others, with lesser number of marks than those secured by her were selected for madical colleges affiliated to the Karnatak University was founded on a wrong premise. For comparison between herself and the said two candidates she took her marks in optional subjects only and apparently compared them with the total marks obtained by the said two students in the whole of the P.U.C. examination. There was thus no comparison between person equally situated even as regards the number of marks secured by them.\n\nBut apart from that, the result obtained by a student in an examination held by one university cannot be regarded as comparable with the result obtained by another candidate in an examination held by another university. Even assuming that a conscious effort is made to equalise standards obtaining in different universities, such standards depend on several human factors, methods of teaching and examining, the syllabus in such uniyersities etc. even though the subjects taught and examined were to be the same. It is wellsettled that a question of discrimination can only arise in the case of persons equally situated. That the petitioner and those whom the Selection Committee selected were equally situated cannot, from the facts above stated, be assumed. Consequently, the argument that r. 3. by prescribing tbe 10 years' residence in Mysore State as a qualification for eligibility, is arbitrary and discriminatory becomes academic and need not be gone into in the present writ petition as the petitioner, even without Insisting on that qualification, was not entitled to be selected.\n\nIn this view the petition cannot succeeded and has to be dismissed.\n\nWrit Petition No. 622 of 1970\n\nThe petitioner Is a science graduate having passed her B. Sc. examination held by the Bangalore University in 1969. In that examined she secured SOS out of 1000 marks, i. e., S0.5%. On\n\nJuly 23, 1970, she applied for being admitted to the Pre-Professional Course in Medicine. Her name did not appear in the list of selected candidates issued by the Selection Committee under the Rules for Selection of Candidates for Admission, 1970 framed bv the State Government. Aggrieved by the non-inclusion of her name. the petitioner filed this writ petition.\n\nBesides raising several displ!tes which are common to other writ petitions in the present batch, she raised an additional issue. challenging the validity of r. 4(h) of the said Rules. As already stated, the rule provides for reservation of seats for different categories of candidates applying for selection and cl. rs of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arranae for the payment of bis pension, and on June 12, 1968 tho Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules be wu not entitled to any pension. The petitioner filed the present writ petition under Art. 32 challenging the various orders.\n\nHELD: (I) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [6520-H ~\n\n653A-B]\n\n(2) The order dated August S, 1966, declaring, under r. 76 of th& Service Code that the petitioner had ceased to be in Government service should be set aside. [653-AB]\n\n(a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence. from duty by the government servant was with or without leave so Iona as. it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March\n\nDBOKINANDAN v. Bl.HAR (Vaidialingam, J.)\n\n11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was On the face of it erroneous:• [643C-D, B; 644A-q\n\n(b) Assuming that the order should be read that the petitioner waS not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order oven then, the order would be illegal: From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty iii the seniqt post in spite of several letters written by him. Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the .l!PPellate , court, and so, the decree of the trial court was in full fotce till it was set aside in appeal on June 24, 1964.\n\nQuring that period; that is, from April 11, 1963 to June 24, 1964 the petitioner wrote sevet, a~ letters requesting the respondent' to permit him to join duty in the sen, iot S; rade, but the respondent did not permit him to do so. Therefore, ther~ was no question of the petitioner being continuously absent from service for over S years during the period referred to when he wiis willing but the respondent did not allow him to serve, and bencebr. 76 of tho .Service Code was not applicable. [644E-F ;\n\n645A-D, 0 ; 646 -H; 647 A-B, E-F]. > •\n\n(c) Even if the r. 76 was applicable and it was a question of automatic termination of service, Art. 311 applies to such cases also. According to the respondents a contintious 'absence from duty for over five years apart from resulting in the forfei.ture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office tO' receive pension.\n\nThe respondent did not give an opportunity to the petitioner to shO\\V cause\n\nagainst the order proposed. Hence there was violation of Art. 311. [647G-\n\nH; 6480-E]\n\nJai Shankar v. Stale of Rajasthan, [1966] I S.C.R. 825, followed..\n\n(3) The Order dated Jµne 12, 1968 stating that under r. 46 of the Pepsico Rules the petitioner was not entitled to any pension should also be set aside. f649q Payment of pension under the rules does not depend upon the discretion of the State Government but is g'overned by the rules aq, d a government servant, coming within .those rules is entitled to claim pension. fJnder r. 46 a Government servant dismissed or removed for misconduct, insolvency p or inefficiency is not eligible for pension. In the present case it was contended that the petitioner's absence for over five years, amounted to mis~ conduct and inefficiency in service. But when the order dated August 5, 1966 bas been held to be illegal then tho order dated June 12, 1968 based upon it also falls to tho ground. [649B-C; D-H ; 650A-B]\n\n(4) The grant of pension dOes not depend upon any order. It is only for the J1urpose of quantifying the amount having regard to the service and G other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules. The right of the petitioner to receive pension is property under .Art. 31~1) ad. by a mere executive order the State had nopower to withhold it.\n\nSimilarly, the said claim is also property under Art. 19(1) (f). It, therefore follows. that the order dated June 12, 1968 denying the petitioner the. righ~. to receive pension affected bis fundamental right and as such the writ petition H was maintainable. [6500-H; 652B-C, D-F1\n\nK. R. Erry v. State of Punjab, \"1.1,..R. [1967] Punjab & Haryana !78, (F.B) approved.\n\n...\n\n\nSUPREME COURT REPORTS, [1971] SUPP. s.c.R.\n\n.A (S)·The bar against the Civil Court entertaining any suit relating to tho matter& under the Pension Act does not stand in Hie way of a writ of mandamus being 'issued to the State to properly consider the claim of the .Petitioner for payment' of pension according to law.\n\nORIGINAL Jurusrncnm~:. Writ Petition No. 217 of 1968.\n\nPetition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.\n\nBishan Narain, B. B. Sinha,. S. N. Misra, S . .S . .Jauhar and K. K. Sinha, for .the petitioner.\n\n!J. P. Jha1 for the respondents, '\n\nI The Judgment pf, the Court .w~, s delivered Sy ' Vaidialingam, J~In this writ petition under Art. 32 of the Constitution,· th~ petitioner P!'aJlS\" for the issue of a writ to the respondents in -the nature of Certii'!rari .or any 'Other appropriate writ, direction or order quashing four orderg ctal!tod 'September 2, 1953, March 5, 1960,, August 5, 196~ and June 12, 1968. He fur: !her prays for issue of a writ in the nature of a Wrjt of .Mandamus directing the respondents to treat him as having retired at the age of 58 'and to pay him the pension that he is entitle(f io.\n\nThough four orders are cough! to .be quashed, as we will show in due cou.rsMhe grievance of the .petitioner regarding tlie orders dated September 2, 1953 and March. 5, 1960 can no longer be considered by this C_ourt in thi~.writ petition. In consequence only the last two orders, mentioned above, survive for consideration.\n\nWe will refer liriefiy to the circumstances leading up to the passing of the orders, referred to above, in order to appreciate the circumstances under which the last two orders in particular came to be made as well as the ground of attack levelled againsi these orders. /\n\nThe petitioner joined service as an Assistant Teacher on September I. 1928 in the Patna Practising School and was promoted a~ Sub-Inspector of Schools, Lower Division, in tpe Sub• ordinateiEdur.ational Service from May 31, 1934. The petitioner later on was promoted as Deputy Inspector of Schools in Upper Division of the Subordinate Educational Service and was posted at Seraikella in the Singhbhum District in the Chhotanagpur Division, Bihar from November I, 1949. The State of Seriakella having merged in the erstwhile province of Bihar, the provincial\n\nDEOKINANDAN v. BIHAR (Vaidialiogam, J.)\n\nGovernment took over and assumed control directly of the education in the locality through its employeeS\" of the Education Department unlike other parts of the province where the ed'ucation was under the control and management of the-District and Local Boards.\n\nThe service -rendered by the petitioner as Deputy Inspector of Schools, Seraikella was found satisfactory. by the supe- • rior officers .including the Director of Public Instruction and hence he was recommended to be appt>inted to a superior post of Education Officer in the Community Project.\n\nBy about. the end of 1951, he was transferred to Purnlia hr the district.of Manbhum as Additional Deputy Inspector of Schools. The petitioner. was later on transferred to Bettiah in or abput May, 1953.\n\nAt Bettiah the petitioner receivd a copy of the order dated September 2; 1953 from the Director of Public Instruction directing a censure to be recorded in the character roll \"of the petitioner based on the report of one Shri Kanhaya Lal, District Inspector of Schools, who, according to the petitioner, was inimically disposed towards hirn. The attempt of the petitioner to have the order dated September. 2, 1953 cancelled proved unsuccessful.\n\nThis is the first order that is sought to be quashed by the petitioner.\n\nThe petitiorter on \"'the .basis of certain allegations was placed under suspension on February 6, 1954 and relieved from his duty as Deputy Inspector of Schools, Bettiah. There was, a charge sheet issued to the petitioner on March 16, 1954 and he was found guilty.\n\nBut these inquiry proceedings ere later on ser aside and a fresh inquiry was ordered.\n\nIn consequence the order ofsuspension was cancelled, but immediately ther\"1'fler a fresh inquiry was conducted In which he was again found guilty as per the report of the Inquiry Officer datect September 22, 1959. The Disciplinary Authority, who was the Director of Public Instruction. passed an order on March 5, 1960 accepting the finding of the fnquiry Officer recorded again5t the petitioner and held that the charges had been proved against him. Accordingly, by this order the petitioner was reverted, as punishment, to Lower Division of Subordinate Educational.Service and also directing a censure entry to be recorded in hiS' personal character roll. This is the second order that Is challenged in this writ petition.\n\nIt is not necessary for us to deal in any detail about the first and the second Oj'der as both those orders are now concluded against the petitioner by the decision of the High Court.\n\nThe petitioner filed t\\tle suit No. 86 of 1961 in the Court of the Munsif, III, Patna, for a declaration challenging the order dated March 5, 1960 as well as the inquiry proceedings on the basis of which the said order was'passed. He also challenged the order ot' censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960.\n\nThough the suit was\n\n-E\n\n~38\n\nSUPREME COURT REPOR'Ill [1971] SUPP. s.c.R.\n\ncontested by the respondents, it was ultimately decreed on April 11,. 1963. The respondents filed title appeal No. 132/24 of 1963-64 have notice of a fact when he actuaUy knows the fact or when but for wilful absention from enquiry or search which he ought to have made, or gross negligence, he would have known it. In the latter case he is presum ed. to have constructive notice. For drawing the presumption in the prest>nt case, therefore, the question is not whether the purchaser had the means of obtaining, and might with prudent caution have obtained, knowledge of the charge but whether in not doing so, he acted with wilful abstentioa or gross negligence. There is no principle of law imputing, to all intend ing purchasers of property in municipal areas where municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. lt is a question of fact or a mixed question of fct and law deprn. ding on the facts and circumstances of the case.\n\nThe material in the present case does not justify that the respondent purchaser should be fixed with any constructive notice of the existence of the arrears. because (i) he could not reasonably have thought the municipal corporation had not cared to secure payment of the taxes due since 1949: (ii) the 1nunicipal corpooation was far more negligent and blameworthy than the respondent in allowing the arrears: to accumulate; (iii) though he 1nade enquiries from the receiver~ they did not give any intimation about the arrears; and (iv) the building was in the occupation of tenants and the rent was recovered by the receivers and the reasonable assumption would be that the n1unicipal tax. which '\"'i!o. a charge on the property and given priority under s. 61 of the Provincial\n\nInsolvency Act. 1920, had been paid by the receivers.\n\n[71G-H; 72H;\n\n730-G; 74C-H; 75B-D]\n\nNawal Kishore v. Municipal Board, Agra. I.LR. [1943] All. 453, Municipal Board. Lucknow v. Ramji/al, I.LR. [1916] 16 Luck. 607, Chamiu Ram v. Municipal Commissioner of Kurseong Municipality, A.l.R. 1951 Ca1. 398 and Municipal Board, Lucknow v. Lala Ran1ji Lal, A.l.R. 1941 Oudh 305, overruled.\n\nMunicipal Board, Cawnpore v. Roop Chand Jain, I.LR. [1940] All. 669. approved.\n\nAkhoy Kumar Banerjee v. Corporation of Calcutta, 1.L.R. 4.:! Cal. 625, referred to.\n\nClvIL APPELLATE JURISDICTION : Civil Appeal No. 1161 of F 1967.\n\nAppeal from the judgment and order dated April 28, 29, 1966 of the Gujarat High Court in Letters Patent Appeal No. 19 of 1961.\n\nS. T. Desai and /. N. Shroff, for the appellant.\n\nThe respondent did not appear.\n\nThe Judgment of the Court was delivered by\n\nDua, J.-In this appeal on certificate granted by the High Court of Gujarat under Article 133(1)(c) of the Constitution of India the question raised relate to the liability of auction purchaser of property at court sale for the arrears of municipal taxes due on the date of sale to the municipal corporation of the City of Ahmedabad which dues are a statutory charge on the property sold and of which the purchaser had no actual notice.\n\nOn the\n\nquestion of constructive notice there is a sharp conflict of judicial decisions in the various High Courts and in the Allahabad High Court itself there have been conflicting expression of opinion.\n\nIn this Court there being no representation on behalf of the respondent the appeal was heard ex parte.\n\nThe property which is the subject matter of controversy in this litigation originally belonged to one Haji Nur-Mahammad Haji Abdulmian.\n\nHe apparently ran into financial difficulties iir February, 1949, and insolvency proceedings were started against him in March, 1949.\n\nBy an interim order receivers took charge of his estate and finally on October 14, 1950 he was adjudicated insolvent. The property in question accordingly vested in the receivers.\n\nThis property had been mortgaged with a firm cailed Messrs. Hargovind Laxmichand.\n\nIn execution of a mortgage decree obtained by the mortgagee this property was auctioned and purchased at court sale by the. plaintiff Haji Abdulgafur Haji Hussenbhai, (respondent in this Court) for Rs. 22,300.\n\nHe was declared purchaser on November 28. 1954.\n\nAt the time of this purchase there were municipal taxes in respect of this property in arrear for the years 1949-50 to 1953-54, which means that the receivers had not cared to pay the municipal taxes durir.g all these years.\n\nThe property was attached by the municipal corporation by means of an attachment notice dated July 20, 1955 for the arrears of the municipa.l taxes amounting to Rs. 543.79 ps.\n\nA~ the municipal corporation threatened to sell the property pursuant to the attachment proceedings the purchaser instituted the suit (giving rise to this appeal) for a declaration that he was the owner of the property and that the arrears of municipal taxes due from Haji Nurmohammad Haji Abdulmian were not recoverable by attachment of the suit property in the plaintiff's hands and that the warrant of attachment of the property issued by the mun). cipal corporation was illegal and ultra vires. Permanent injunction restraining the municipal corporation from attaching the property for arrears of municipal taxes was also sought. The trial court declined the prayer for a declaration that the property was not liable to be attached for recovery of the arrears of municipal taxes.\n\nBut the warrant of attachment actually issued in this case was held to be illegal and void with the result that an injunction was issued restraining the municipal corporation from enforcing the impugned warrant of attachment against the plaintiff in respect of the suit property.\n\nBoth parties feeling aggrieved appealed to the District Court.\n\nThe Assistant Judge who heard the appeals dismissed both of them.\n\nThe plaintiff thereupon presented a second appeal to the Gujarat High Court which was summarily dismissed by a learned single Judge.\n\nLeave tn appeal to a Division Bench under cl. 15 of the Letters Patent was however granted.\n\nThe Divisioir Bench hearing the Letters\n\n5-1 S.C. lndia/71\n\nSUPRllM! COURT REPORTS\n\n[1971] SUPP.\n\nC.R\n\nPatent appeal in a fairly lengthy order allowed the plaintilf's appeal and decreed his suit holding that the plaintiff is the owner of the suit property and the charge of the municipal corporation for arrears of municipal tax is not enforceable against his property and also restraining the municipa1 corporation by a permanent injunction from proceeding to realise from this property the charge in respect of the arrears of municipal taxes.\n\nOn appeal in this Court three main questions were raised by Shri S. T. Desai, learned counsel for the appellant.\n\nTo begin with it was contended that there is no warranty of title in an auction sale. This general contention seems to us to be well-founded because it is axiomatic that the purchaser at auction sale takes the property subject to all the defects of title and the doctrine caveat emptor Oct the purchaser beware) applies to such purchaser. The case of the judgment debtor having no saleable interest at all in the property sold such as is contemplated by O. 21, R. 91, C. P. C. is, however, different and is not covered by this doctrine.\n\nThe second point canvassed was that there is an express provision in Section 141 (!) of the Bombay Provin cial Municipal Corporation Act, 1949 (hereinafter called the Bombay Municipal Act) for holding the present property to be liable for the recovery of municipal taxes and, therefore, though the property was subject only to a charge not amounting to mortgage and, therefore, involving no transfer of interest in the pro perty, the same could nevertheless be sold for realising the amount charged, even in the hands of a transferee for consideration without notice.\n\nSection 141 of the Bombay Municipal Act is an express saving provision as contemplated by Section 100 of Trans fer of Property Act, contended Shri Desai.\n\nThis submission has no merit as would be clear from a plain reading of Section 100 of the Transfer of Property Act, 1882 and Section 141 of the Bombay Municipal Act, the only relevant statutory provisions.\n\nSection 100 of the Transfer of Property Act dealing with 'charges' provides :\n\nS. 100 \"Where immoveable property of one person is by act of parties or operation of Jaw made security for the payment of money to another, and the transaction does not amount to a mortgage, the later person is said to have a charge on the property ; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.\n\nNothing in this section applies to the charge of a. trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force,\n\n.MUN!C CORP. v. ABDULGAPUR (Dua, J.).\n\nno charge shall be cnforctd against any property in the hands of a person to whom such property ha1 been tranaferred for consideration and without notice of the charge.\" This section in unambiguous language Jays down that no charge is enforceable against any property in the hands of a transferee for consideration without notice of the charge except where it• is otherwise expressly provided by any Jaw for the time being in force.\n\nThe saving provision of law must expressly provide for enforcement of a charge against the property in the hands of a transferee for value without notice of the charge and not merely create a charge.\n\nWe now turn to Section 141 of. the Bombay Provincial Municipal Corporation Act, 1949 to sec if it answers the requirements of Section 100 of Transfer of Property Act. This section rcada ·: -\n\nSection 14 I. \"Property taxes to be a first charge on premises on which they are assessed : (!) Property taxes due under this Act in respect of any building or lllllld shall, subject to the prior payment of the land revenue, if any, due to the State Government thereupon, be a first charge, in the case of any building or land held immediately from the Government, upon the interest in such building or land of the person liable for such taxes and upon the moveable property, if any, found within or upon such building or land and belonging to such person ; and, in the case of any other building or land, upon the said building or land and upon the moveable property, if any, found within or upon such building or land avn he.lnnQiTIQ to the person liable for such taxes.\n\nExplanation.-The term \"Property taxes\" in this section shall be deemed to include charges payable under section 134 for water supplied to any premises and the costs of recovery of property-taxes as soecified in the rules.\n\n(2) In any decree passed in a suit for the enforcement of the charge created by sub-section (!), the Court may order the paiyment to the Corporation of interest on the sum found to be due at such rat& as the Court deems reasonable from the date of the institution of the suit until realisation, and such interest and the cost of enforcing the said charge, including the costs of the suit and the cost of bringing the premises or moveable property in question to sale under the decree, shall, subject as aforesaid, be a fresh charge on such premises and moveable property along with the amount found to be due, and the Court may direct payment thereof to.be made to the Corporation out of the sale proceeds.\"\n\n&7.\n\nSUPRBMB COUllT REPORTS [1971] SUPP. s.c.ll.\n\nSub-section (!), as is obvious, merely creates a charge in express language.\n\nThis charge is subject to prior payment of land revenue due to the State Government on: such building or land. The section, apart from creating a statutory charge, does not further provide that this charge is enforceable against_ the property charged in the hands of a transferee for consideration without notice of the charge.\n\nIt was contended that the saving provision, as contemplated by Section 100 of the Transfer of Property Act, may, without using expr!JSS words, in effect provide that the property is liable to sale in enforcement of !he charge and that if this liability is fixed by a provision expressly dealing with the subject, then the charge would be enforceable against the property even in the hands of a transferee for consideration without notice of the charge.\n\nAccording to the submission it is not necessary for the saving provision to expressly provide for the enforceability of the charge against the property in the hands of a transferee for consideration without notice of the charge.\n\nThis submission is unacceptable because, as already observed, what is enacted in the second half of Section 100 of Transfer of Property Act is the general prohibition that no charge shall be enforced against any property in the hands of a transferee for consideration without notice of the charge and the exception to this general rule must be expressly provided by law.\n\nThe real core of the saving provision of law must be not mere enforceability of the charge against the property charged but enforceability of the charge against th6 said property in the hands of a transferee for consideration without notice of the charge.\n\nSection 141 of the Bombay Municipal Act is clearly not such a provision.\n\nThe second contention accordingly fails and is repelled.\n\nThe third argument, and indeed this was the principal argument which was vehemently pressed with considerable force by Shri Desai, is that the plaintiff must be deemed to have constructive notice of the arrears of municipal taxes and as an auction purchaser he must be held liable to pay these taxes and the property purchased must also be held subject to this liability in his bands.\n\nIn support of this submission he cited some decisions of our High Courts.\n\nThe first decision relied upon by Shri Desai is reported as Arumilli Suravya v. Pinisetti Venkataramanamma(') in which relying on Creet v. Ganga Ram Gool Rai(') it was observed by Horwill J., that Section 100 of the Transfer of Property Act does not apply to auction sales because the transfer within the meaning of the Transfer of Property Act does not include an auction sale. It was added that the position of a purchaser at an execution sale is the same as that of the judgment-debtor and his position is somewhat different from that of a\n\n(!) A.I.R. 1940 Mad. 701.\n\n(2) I.LR. [1937] l Cal. 203.\n\npurchaser at a private sale.\n\nExecution purchasers, according to this decision, purchase the property subject to all the charges and encumbrances legal and equitable which would bind the debtors.\n\nWe do not agree with the view taken in this decision. We however, do not consider it necessary to go into the matter at length because we find that this decision was expressly overruled by this\n\nCourt in Laxmi Devi v. Mukand Kunwar(1) and the High Court, relying on this Court's decision, had also repelled a similar contention pressed on behalf of the Municipal Corporation there.\n\nThis Court pointed out in Laxmi Devi's case(1) that the provisions of Section 2(d) of the Transfer of Property Act prevail over Section 5 with the result that the provisions of Section 57 and those contained in Chapter IV of the Transfer of Property Act must apply to transfer, by operation of law. Section 100, it may be pointed out, falls in Chapter IV.\n\nReliance was next placed on a Full Bench decision of the Allahabad High Court in Nawal\n\nKlshore v. The Municipal Board, Agra ('). According to this decision the question of constructive notice is a question of tact which falls to be determined on the evidence and circumstances of each case.\n\nBut that Court felt that there was a principle on which question of constructive notice could rest, that principle being that all intending purchasers of the property in municipal areas where the property is subject to a municipal tax which has been made a charge on the property by statute have a constructive knowledge of the tax and of the possibility of some arrears being due with the result that it becomes their duty before acquiring the property to make enquiries as to the amount of tax which is due or which may be due and if they fail to make this enquiry such fa, ilure amounts to a wilful abstention or gross negligence within the meaning of Section 3 of the Transfer of Property Act and notice must be imputed to them.\n\nThe reference to the Full Bench in the reported case was necessitated because of conflict of judicial opinion between that Court and Oudh Chief Court. The earlier decision of a Division Bench in Municipal Board, Cawmpore v. Roop Chand Jain (') was overruled and the Bench decision of Oudh High Court in Municipal Board, Lucknow v. Ramjilal (') was approved. The next decision to which reference was made by Shri Desai is reported as Akhoy Kumar Banerjee v.\n\nCorporation of Calcutta (').\n\nIn this case, after distinguishing a mortgage from a charge, it was observed that the statutory charge in that case could not be enforced against the property in the hands of bona fide purchaser for value without notice.\n\nWhile dealing with the question whether the appellants in that case were purchasers for value without notice, it was observed that they had\n\n(I) [196S] I S.C.R. 726.\n\n(3) J.L.R. [1940] All. 669. (S) l.L.R. 42 Cal. 625.\n\n(2) l.L.R. [1943] All. 453.\n\n(4) I.L.R. [1916] 16 Lucknow 607.\n\nSUPIUlllZ COURT REPORTS [1971] SUPP. s.c.R.\n\nnot pleaded in their written statement that they were purchasers for value without notice.\n\nHaving not pleaded this defence they were held disentitled to avail of it.\n\nHaving so observed the Court dealt with the case on the assumption that the defence though not expressly taken in the pleadings was available to the defendants. The Court said :\n\n\"But even if we assume that the defence, though not expressly taken in their written statement, is available to the defendants, they are in a position of difficulty from which there is no escape. The appellants are private purchasers of the property and if they had enquired at the time of their purchase, they would have discovered that the rates were in arrears; as ai matter of fact. they would be personally liable under Section 223 for the arrears of the year immediately prior to the date of their purchase, and they admit that they have satisfied such arrears, though they do not disclose whether by enquiry they had ascertained the existence of the arrears before th.ey made the purchase.\"\n\nThe Court then proceeded to deal with the position of the vendor from whom the appellants had purchased the property in order to see if he could raise the defence of being a purchaser for value without notice. The appellant's vendor was a . mortgagee who had acquired title by foreclosure-an involuntary alienation by his mortgagor-and it was held that to him constructive notice could not be imputed to the same extent as to a purchaser at a private sale.\n\nBut had he made enquiries from the municipal authorities he could still have ascertained whether any arrears of consolidated rates were due.\n\nWhen he had taken the mortgage he was aware that if the rates were not paid the arrears would be first charge on the property with the result that before becoming full owner by foreclosure he should have ascertained the true state of affairs. On this reasoning he was held to have constructive notice and the purchasers from him could not claim greater protection.\n\nThese circumstahces clearly disclose that the reported case is not similar to the one before us and is of little assistance.\n\nCltandu Ram v. Municipal Commissioner of Kurseong Municipality (') was the next decision cffed. The Bench in that case followed the Full Bench decision of the Allahabad High Court in Nawal Kishores case (supra).\n\nA Division Bench of the Oudb Chief Court in Municipal Board, Lucknow v. Lala Ramji Lal (') disagreeing with the Bench decision of the Allahabad High Court in Roop Chand Jain's case (supra) observed that it must be presumed that a person who buys house property situate in a municipality is acquainted with the law by which a charge is imposed\n\n(1) A.I.R. 1951 Cal. 398.\n\n(2) A.I.R. 1941Oudh305.\n\non that property for the payment of taxes.\n\nThe charge havini: been expressly imposed by the Municipal Act upon the property for payment of municipal taxes the municipality was entitled to follow the property in the hands of a transferee who had not cared to make any enquiry as to whether the payment of taxes was in arrears.\n\nThe Court approved the Calcutta decision in Akhoy Kumar's case (supra).\n\nThe next decision cited is reported as Laxman Venkatesh Naik v. The Secretary of State for India(') but being a case. of takkavi Joans it is of no assistance in the present case.\n\nWe may now tum to the Bench decision of the Allahabad High Court in Roop Chand Jain's case (supra).\n\nThe reasoning for the view adopted there may be reproduced :\n\n\"A bona fide purchaser takes property he buys free of all charges of which he has no notice actual or constructive.\n\nHe is said to have constructive notice when ordinary prudence and care would have impelled him to undertake an enquiry which would have disclosed the charge. If for instance the charge ia created by a registered document then the purchaser would be held to have cons\n\ntructive notice of that charge inasmuch as a prudent purchaser would in ordinary course search the registers before effecting the purchase.\n\nThere is no register, as far as we know, of arrears of taxes or of charges in respect thereof. It has not been shown that the municipality of Cawnpore intimate to the public in the \"Press\" or by other publication a list of the properties which are charged in respect of arrears of taxes. There is nothing upon the record to justify the conclusion that the defendants could have demanded any information from the municipality in regard to charges on immovable property within the municipal limits.\"\n\nThe Court then noticed the fact that the Kanpur Corporation had allowed 11 years' arrears of taxes to accumulate and it was observed that no intending purchaser was bound to presume that taxes upon the property, he contemplates purchasing had not been paid in the ordinary course, in the absence of special intimation by the municipality.\n\nOn this reasoning the suggestion of constructive notice was negatived.\n\nAccording to Section 3 of the Transfer of Property Act which is described as interpretation clause, a person is said to have notice of a fact when he actually knows that fact or when but for wilful abstention from an enquiry or search which he ought to have made or gross negligence he would have known it. There\n\n(1) XU B. L.R. 2S7.\n\nSUPREME COURT REPORTS [1971) SUPP. s.c.11..,\n\nare three explanations to this definition dealing with three contingencies when a person acquiring immovable property is to be deemed to have notice of certain facts. Those explanations are:\n\n\"Explanation /.-Where any transaction relating to immoveable property is required by law to be and has been affected by a registered instrument, any person acquiring such property or any part of, or share of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under subsection (2) of Section 30 of the Indian Registration Act,\n\n1908, from the earliest da.te on which any memorandum of such registered instrument has been filed by any Sub- Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated :\n\nProvided that-\n\n(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder.\n\n(2) the instrument or memorandum has been duly entered or filec!. as the case may be, in books kept under section 51 of that Act and\n\n(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.\n\nExplanation II.-Any person acquiring any immoveable property or any sha.re or interest in any such property shall be deemed tor have notice of the title, if any, of any person who is for the time being in actual possession thereof.\n\nExplanation lll.-A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material.\n\nProvided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.\"\n\nNow the circumstances which by a deeming fiction impute notice to a party are based, on his wilful abstention to enquire or search, which a person ought to make or, on his gross negligence.\n\nThi~ presumption of notice is commonly known as constructive notice.\n\nMUNIC CORP. V. ABDULOAFUR (Dua, J.)\n\nThough originating in equity, this presumption of notice is now a part of our statute and we have to interpret it as such. Wilful abstention suggests conscious or deliberate abstention and gross negligence is indicative of a higher degree of neglect. Negligence is ordinarily understood as an omission to take such reasonable care l\\S under tbe circumstances is tbe duty of a person of ordinary prudence to take.\n\nIn otber words it is an omission to do something which a reasonable man guided by consideration which normally regulate the conduct of hum11n affairs would do or doing •omething which a normally prudent and reasonable man would not do. TLe question of wilful abstention or gross negligence and, therefore, of constructive notice considered from this point of view is generaUy a question of fact or at best mixed question of fact and law depending primarily on tbe facts and circumstances of each case and except for cases directly falling within the tbree explanations, no inflexible rule can be laid down to serve as a straight-jacket covering aU possible contingencies. The question one ha.s to answer. in circumstances like the present is not whether the purchaser had the means of obtaining and might with prudent cautirn have obtained knowledge of the charge but whether in not doing so he acted with wilful abstention or gross negligence. Being a question depending on the behaviour of a reasonably prudent man, the Courts have to consider it in the background of Indian conditions. Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should not be blindlv or too readily foUowed.\n\nAdverting now to the case before us, as already noticed, the property in question had vested in the receivers in insolvency proceedings since March, 1949 by an interim order, and in October, 1950 the original owner was adjudicated as an ir.solvent and the property finally vested in the receivers in insolvency.\n\nThe plaintiff purchased the property in November, 1954 dnd in our opinion it could not have reasonably been expected by him that tbe receivers would not have paid to the municipal corporation since 1949 the taxes and other dues which were charged on this property by statute. According to Section 61 of the Provincial Insolvency Act, 1920 the debts due to a local authority are given priority, being bracketed along witb the debts due to the State.\n\nMerely because these taxes are charged on the. property could not constitute a valid ground for the official receiver not to discharge tbis liability.\n\nIn fact we find from the record that on January 15, 1951 the receivers had submitted a report to the insolvency court about their having received bill~ for Rs. 62&-3-0 in respect of municipal taxes of the insolvent's property and leave of the court was sought for transferring the said property to the names of the receivers in the municipal and Government records.\n\nThe court recorded an order on February 8.\n\nSUPR!J.I! COURT Rl!PORTs [1971] SUPP. s.c.lt.\n\n1951 that the municipal taxes had to be paid.\n\nOn the receivers stating that they did not possess sufficient funds the court gave notice to the counsel for the opposite party and on February 24, 19 51 made the following order :\n\n\"Mr. Pandya absent. The taxes have to be paid. The Receivers state that they can pay only by sale of some properties of the insolvent from which they want. Sanctioned.\n\nThe property in which the insolvent stays should first be disposed of.\n\nThe terms are accordingly so authorised.\"\n\nIt is not known what happened thereafter.\n\nIt is, however, difficult to appreciate why after having secured the necessary order from the court municipal taxes were not paid off by the receivers ; md why the municipal corporation did not pursue the matter and secure payment of the taxes due.\n\nMay be that the municipal corporation thought that since these dues were a charge oa the property they need not pursue the matter with the receivers and also need not approach the insolvency court.\n\nIf so, then this, in our opinion, was not a proper attitude to adopt.\n\nIn any event the plaintiff could not reasonably have thought that the municipal corporation had not cared to secure payment of the taxes due since 1949.\n\nOn the facts and circumstances of this case, therefore, we cannot hold that the plaintiff as a prudent and reasonable man was bound to enquire from the municipal corporation about the existence of any arrears of taxes due from the receivers.\n\nIt appears from the record, however, that he did in fact make enquiries from the receivers but they did not give any intimation. The plaintiff made a statement on oath that when he purchased the building in question it was occupied by the tenants and the rent used to be recovered by the receivers.\n\nThere is no rebuttal to this evidence.\n\nNow. if the receivers were receiving rent from the tenants. the reasonable , assumption would be that the municipal taxes which were a charge on the property and which wi!re also given priority under Section 61 of the Provincial Insolvency Act,\n\n1920, had been duly paid by the receivers out of the rental income.\n\nThe plaintiff could have no reasonable ground for assuming that they were in arrears. From the plaintiff's testimony it is clear that he did nevertheless make enquiries from the receivers if there were any dues against the property though the enquiry was not made specifically about municipal dues.\n\nApparently he was not informed about the arrears of municipal raxes.\n\nThis seems to us explainable on the ground that the receivers bad, after securing appropriate orders, for some reasons not clear on the record, omitted to pay the arrears of municipal taxes and they were, therefore, reluctant to disclose this lapse on their part.\n\nOn these facts and circumstances we do not think that the plaintiff could reasonably be fixed with any constructive notice of the arrears of municipal taxes\n\nMUNIC COl\\P. P. ABDULGAFU!. (Dua, J.)\n\nsince 1949.\n\nSo far as the legal position is concerned we are inclined to agree with the reasoning adopted by the Allahabad High Court in Roop Chand Jain's case (supra) in preference to the reasoning of the Full Bench of that Court in Nawal Kishore's case (supra) or of the . Division Bench of Oudh Chief Court in Ramii Lal's case (supra).\n\nWe do not think there is any principle or firm rule of law as suggested in Nawal Kishore's case (supra) imputing to all intending purchasers of property in municipal area where municipal taxes are a charge on the property. constructive knoweldge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arreairs. The question of constructive knowledge or notice has to be determined on the facts and circumstances of each case. According to the Full Bench decision in Nawal Kishore's case (supra) also the question of constructive notice is a question of fact and we do not find that the material on the prCient record justifies that the plaintiff should be fixed with any constructive notice of the arrears of municipal taxes.\n\nWe may add before concluding that as the question of constructive notice has to be approached from equitable considerations we feel that the municipal corporation in the present case was far more negligent and blameworthy than the plaintiJI. We have, therefore, no hesitation in holding that the High Court took the correct view of the legal position with the result that this appeal must fail and is dismissed.\n\nAs there is no representation on behalf of the respondent there will be no order as to costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 68, "entities": [{"text": "AHMEDABAD MUNICIPAL CORPORATION OF THE CITY A\n\nOF AHMEDABAD", "label": "PETITIONER", "start_char": 1, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "AHMEDABAD MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD", "offset_not_found": false}}, {"text": "v.\n\nHAJJ ABDULGAFUR HAJI HUSSENBBAl", "label": "RESPONDENT", "start_char": 61, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "HAJJ ABDULGAFUR HAJI HUSSENBHAI", "offset_not_found": false}}, {"text": "II. 0. DUA", "label": "JUDGE", "start_char": 114, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "I.D. 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"Section 100", "label": "PROVISION", "start_char": 18417, "end_char": 18428, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV of the Transfer of Property Act", "statute": "Chapter IV of the Transfer of Property Act"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 19423, "end_char": 19432, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 19440, "end_char": 19464, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 223", "label": "PROVISION", "start_char": 21313, "end_char": 21324, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 25482, "end_char": 25491, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 25499, "end_char": 25523, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 30", "label": "PROVISION", "start_char": 26442, "end_char": 26452, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Registration Act", "label": "STATUTE", "start_char": 26460, "end_char": 26483, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Registration Act, 1908", "label": "STATUTE", "start_char": 26882, "end_char": 26911, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 51", "label": "PROVISION", "start_char": 27051, "end_char": 27061, "source": "regex", "metadata": {"linked_statute_text": "the Indian Registration Act, 1908", "statute": "the Indian Registration Act, 1908"}}, {"text": "section 55", "label": "PROVISION", "start_char": 27211, "end_char": 27221, "source": "regex", "metadata": {"linked_statute_text": "the Indian Registration Act, 1908", "statute": "the Indian Registration Act, 1908"}}, {"text": "Section 61", "label": "PROVISION", "start_char": 30422, "end_char": 30432, "source": "regex", "metadata": {"statute": null}}, {"text": "Provincial Insolvency Act, 1920", "label": "STATUTE", "start_char": 30440, "end_char": 30471, "source": "regex", "metadata": {}}, {"text": "Section 61", "label": "PROVISION", "start_char": 33206, "end_char": 33216, "source": "regex", "metadata": {"statute": null}}, {"text": "Provincial Insolvency Act", "label": "STATUTE", "start_char": 33224, "end_char": 33249, "source": "regex", "metadata": {}}]} {"document_id": "1971_1_654_660_EN", "year": 1971, "text": "C. SANKARANARAYANAN ETC.\n\nSTATE OF KERALA May 4. 197L\n\n[K, S. HEGDB AND A N. GROVER, JJ.]\n\nKera/a Education Rules, 1959-Provisions of Ch. XX, Ch. XXVllA. aJtd XXVIIB are mutually exclusive-Teacher in aided school who ha.r exercised option under r. 2 of Ch. XIV(c) is governed by Chapter XXV118-Can,. not claim superannuQlion on basis of r. 8 of Ch. XXVllA..\n\nConstitution of India, 195(}-Rule-making power of Government llJU!er Art. 309 is not controlled by any agreement between Government and employees-Change of age of retirement from 58 to SS does not attract Art. 311(2).\n\nThe appellant in C.A. No. 1789/69 was a teacher in a private aided school in Kerala while the other appellants were at the relevant time teachers in government schools. The teachers associations of Government aa well as aided schools submitted a memorandum to the Government making various demands, one of them being that the age of retirement of school teachers should be raised to 60 years.\n\nOn July 1966 the Government issued an order by which the age of retirement was raised from 55 to 58 years. However on May 4, 1967 another order was made by Government in supercession of the earlier orders and the age of retirement of all government employees and aided school teachers was again fixed at SS yean. Ou\n\nboth occasions necessary amendments were effected in the Kerala Service Rules made by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution, as well as in the Kerala Education Rules, 1959 framed by the Government under s. 36 of the Kerala Education Act 6 of 1949. Tho 1959 Rules originally contained Ch. XXVIL In February 1965 this Chapter was renumbered as Ch. XXVll-A. Anothtr Ch. XXVll-B was added. Rule in Ch. X:XVll-A appearing under the head 'pension' provided that in tho case of those in service of any aided school prior to 4-9-1957 the age of retirement shall be 60 years. In Ch. XXVII-B however it was laid down that the rules therein shall apply to teachers in aided schools to whom the rules in Ch. XIV(c) Kerala Education Rules applied.\n\nRule 4 of the said Chapter further laid down that the date of compulsory retirement on superannuation applicable to teachers of Government schools shall apply to teachers of aided schools. Rule 2 of Cb. XIV\n\n(c) provided that teachers who were in service on 1-10-1964 would have an option either to continue under the Rules in Ch. XIV(B) or to come under the Rules in that Chapter i.e. XIV(C). Such option when exercised was to be deemed to be final. The appellant in C.A. No. 1789/69 exercised bis option within the period limited therefore and thus came to be governed by the Rules in Chapter XIV(C). When the Government sought to retire the appellants at the age of 55 years they filed writ petitions in the High Court. The petitions were dismissed. Ir appeal by special leave to this Court,\n\nHELD : (i) The division benct. f the High Court was right in holding that the provisions of Ch. XXVIIA and Ch XXVllB were mutually exclu sive. Chapter XXVIIB makes independent and separate provisions which are inconsistent with those contained in Cb. XXVIIA. As the appellant in C. A, No. 1789/69 was a teacher.in an aided school the age of compulsory\n\nc. SANKARANARAYANAN v. KERALA (Grover, J.)\n\nr.etirement by virtue of r. 4 of the Ch. XVIIB would be the same as that of teachers of government schools. The age of compulsory retirement for the latter class of teachers was 55 years and it followed that that would be the age of superannuation for the aforesaid appellant.\n\nRule 2(a) of the Ch. XIV(c) expressly states that teachers who come under the provisions of Ch. XIV(c) shall retire at the age of 55. Rule 8 of Ch. XXVIIA could not be applied to the said appellant as that was a general rule and when he opted to be governed by the rules in Ch. XXVIIB and Ch. XIV(c) he was relegated to the same position as that of a teacher of Government school even in the matter of superannuation. [6580-0]\n\n(ii) The power of the Government under Art. 309 of the Constitutiou to make rules regulating the conditions of service of government employees or of teachers in the aided schools under s. 12 of Act 6 of 1959 could in no way be fettered by an alleged agreement between the governo:ient and\n\nteachers even if such an agreement was proved. [659B-C]\n\n(iii) Tho rle of estoppel also could not be invoked in the circumstances of the case. There was no question of any representation having been made by the Government which was acted upon to their detriment by the ap pellants. [659F1\n\nUnion of India & Ors. v. MI s lndo-Afghan Agencies Ltd. [1968] 2 S.C R. 366, distinguished.\n\n(iv) Change in the rule relating to retirement can be validly made and it does not attract. either Art. 311(2) or Art. 14 of the Constitution. [660C]\n\nBishun Narain Mishra v. State of Uttar Pradesh & Ors., [1965] I S.C. R: 693, relied on.\n\n(v) The contention that once the age of retirement was raised to 58\n\nit could not be reduced to 55 owing to the provisions of rr. 5 and 6 of the Kerala Service Rules was not raised before the division Bench of the High E O:>urt. The normal practice of this Court is not to allow a new point to be raised except in a case of very special nature. [660F1\n\nClvJL APPELLATE JURISDICTION : Civil Appeals Nos. 1789 to 1791 of 1969.\n\nAppals by special leave from the judgments and orders dated F Jnne 11, 1969, imd July 10, 1969 of the Kerala High Court in Writ Appeals Nos. 126 nf 1968 and 762 of 1969.\n\nK. T. Harindranath, Vishnu Bahadur Saharya and Yougindra Khushalani, for the appellants (in all the appeals).\n\nA. R. Somnath Iyer and M. R. Krishna Pillai, for the respon- G dent (State of Kerala) (in all the appeals).\n\nP. C. Chandi, for the interveners (in all the appeals).\n\nThe Judgment of the Court was delivered by\n\n1 Grover, J.-These appeals by special leave are from a judgment of a division bench of the Kerala High Court. 11ffinning the decision of a learned single judge who had dismissed the writ petitions of the appellants.\n\nSUPREME COURT REPORTS [1971) SUPP. s.c.a.\n\nThe appellant in C.A. 1789 / 69 entered service as a teacher in a private aided school '?n. March ~4. 1~4?. Doth the appellnts m C.A. 1790 / 69 had iomed service ongmalJy as teachers in aided schools but they entered government school service on\n\nugust 17, 1958 and December. 1.3. 1948 respectively. Similarly m C.A. 1791/ 69 the appellant iomed government service as a teacher and attained the age of 55 on July 2, 1968.\n\nIt appears that on November 22, 1965 all associations of government and private aided school teachers of which the appellants were members submitted a memorandum to the government making various demands. One of these (No. 11) was that the age of retirement of school teachers should be raised to 60 years. On\n\nJuly 14, 1966 the government issued an order by which the age of retirement was raised from 55 to 58 years.\n\nParagraph 8 of this order was in the following terms :-\n\n\"The age of retirement of all teachers including Head Masters of aided schools will be raised to 58 with effect from 1-7-1966. This will be subject to the condition that the appointing authority may with previous approval of the Director of Public Instruction in the case of High and Training Schools require the teacher to retire after he attains the age of 55 years, on three months notice without assigning any reason. The teachers may also after attaining 55 years, voluntarily retire after giving three months notice to the appointing authority.\"\n\nThe order mentioned above was folJowed by an amendment in the relevant rules in the Kerala Education Rules framed under the Kerala Education Act, 1958 (Act 6 of 1959). On May 4, 1967 another order was issued by the government in supersession of the previous orders. By this order the age of compulsory retirement of all government employees and aided school teachers whose age of retirement on superannuation under the existing order was 58 years was lowered to 55 years.\n\nIt was, however, stated that all those who had already crossed the age of 55 years or who might attain the age of 55 within a period of three months from the date of the order would retire only on the date of expiry of three months. The necessary amendments were formally made both in the Kerala Education Rules framed under the Act 6 of 1959 and the Kerala Service Rules made by the Governor in exercise of the powers conferred by the proviso to Article 309 of the Constitution.\n\nWe may at this stage refer to. the elevant statutory provisions and the Rules. Act 6 of 1959 was enacted to provide for the better organisat:t\"on and development of educational institutions in the State. Section 12(1) of the Act provides that the\n\nc. SANKARANARAYANAN v. KEKALA (Grover, J.) 6 57\n\nconditions of service of teachers in aided schools including the A conditions relating to pay, pension, provident fund, insurance and age of retirement shall be such as may be prescribed by the government. Section 36 confers power on the government to make rules. The rules wmch have heeri framed under s. 36, namely, the Kerala Education Rules 1959, here.in-after called the \"Education Rules\" originally contained Chapter XXVII. In February B 1965 this Chapter was renumbered as XXVIIA. Another Chapter XXVIIB was added. Rule 8 In Chapter XXVIIA appearing under the head \"pension\" is in the following terms:-\n\n\"8. The age of retirement on superannuation shall be 55 years.\n\nNote.-In the case of those who were in service of any aided school prior to 4-9-1957 the age of retirement on superannuation shall be 60 years subject to the con dition that the service beyond 55 years shall not qualify for pension and gratuity under these rules.\"\n\nIn Chapter XXVIlB the following rules may be noticed:\n\n\"I. The Rules in this Chapter shall come into force on J.!(J.J964.\n\n2. These Rules shall apply to teachers In aided schools to whom the rules in Chapter XIV(Cl Kerala\n\nEducation Rules apply.\n\nE 3 ................................... ..\n\n4. The date of compulsory retirement on super annuation applicable to teachers of government schools shall apply to teachers of aided schools.\"\n\nChapter XIV(Cl relating to conduct rules contains two provisions which are material and which may be reproduced:\n\n\"I. The Rules in this Chapter shalJ apply to-\n\n(i) Teachers of aided schools who are in service on J.10..1964 and who opt under Rule 2 to be governed by these Rules ; and\n\n(ii) Teachers appointed after 1-10..1964;\n\n. (Provided that nothing contained in this Chapter shall apply to teachers who continue in service after at taining the age of 55 on or before 4-5-1967.)\n\n2. Subject to the provisions of Rule I teachers who in service on ).)()..1964 shall be given the option either to continue under the Rules in Chapter XIV.\n\n14, 19 and 31 as the parent Act as well as the amending Act is now protected by Art. 3JA of the Constitution.\n\nNeither the question of discrimination nor of compensation or its adequacy can be gone into nor can the unreasonableness of the provisions under which the landlords title has been extinguished nor the manner in which the price is to be paid can be chaltenged. Once it has been held that Art. 31A applies the petitioner cannot complain that his rights under Arts. 14, 19 and 31 of the Constitution have been infringed.\n\nThis protection is available not only to Acts which come within its terms but also to Acts amending such Acts to include new items of property or which change some detail of the scheme of the Act provided firstly that the change\n\ns. N. MllDHI V.1'\\AliAll.ASHTl\\A (Jaganmoha11 Reddy, J.) 667\n\nis not such as would take it out of Art. 3 lA or by itself is not such as would not be protected by it and secondly that the assent of the President has been given to the amending statute. To put it differently as long as the amendment also relates to a scheme of agrarian reforms providing for the acquisition of any estate or of any right thereunder or for extinguishment or modification of such right the mere iransfer of the tenure from one person to another or the payment of the price in instalment or even the postponement of payment by a further period cannot be challenged under Arts. 14, 19 and 31. In this case we have noticed that the impugned legislation has merely amended that provision wl:; ich related to the recovery of the amounts from the tenant who has become purchaser and the postponement of the time of ineffectiveness of sale till the tribunal has tried and failed to recover the amount from the tenant purchaser. The only way under which the petitioner could have recovered the amounts under the Amendment Act was by an application to the Collector under the Revenue Recovery Act for collecting it as arrears of land revenue but that provision under Section 32-L has now been deleted.\n\nWhile the vesting of the title of the tenure in the erstwhile tenant is still defeasible only on certain specified contingencies as was before the impugned Act it only modified the previous provisions to the extent that Jhe erstwhile tenant has been given the benefit of having the payment postponed. or instalments increased by requiring the lnbunal to make an enquiry as to whether there were sufficient reasons for the tenant purchaser making a default and if it is satisfied to condone the delay and extend the period of payment. It also vested in the tribunal instead of the Collector the power to make the recovery on behalf of the landholder. It may also be noticed that under the impugned Act the sale still becomes ineffective as was under the amendment Act when the amount is not recovered with this difference that under the former it has to be shown that the tenant parchaser was not in a position to pay. No doubt before the impugned Act, if the tenant-purchaser did not pay, the Collector could take action under the revenue recovery Act to recover the amount and if he did not recover it the sale became ineffective and the landlord could be put in possessiOn. by evicting the tenantpurchaser provided he was entitled to get possession of it under the Act, as when his holdings do not come within the ceiling. The basic position still remains the same after the impugned Act and there is nothing in the Amendment Act which is destructive of the scheme of agrarian reform which the legislation seeks to implement and which is protected under Art. 31A of the Constitution.\n\nThis view of ours is amply borne out also by the statement of objects and reasons which impelled the legislature to state the difficulty that was being felt in tr:e implementation of the agrarian\n\n........\n\nl ,.,.· '\n\n~ .... , .~, .-\n\n[1911] SOPP. S.o.&,\n\nland reforms and indicate how it sought to find a remedy and get over il This is what was stated :\n\n\"According to provisions of Section 32-K, 32-L and 32-M of the Bombay Tenancy Agricultural Land Act 1942; it is left to the tenant to deposit '1-ith the tribunal the purchase of the land which is deemed to have been purchased by him under Section 32 of that Act. If he fails to deposit the price in lumpsum or instalments the purchase becomes ineffective and under Section 32-P the tenant can be summarily evicted from the land. It has been brought to the notice of the Government that in the case of an Act a large number of tenants specially belonging to the Scheduled Caste and Scheduled Tribe, the purchase is in danger of being ineffective for failure to deposit the sale price on due dates.\n\nIt is noticed that these tenants being illiterate and socially backward have failed to deposit the amount more out of ignorance than willful default. Unless therefore immediate steps are taken to provide for recovery of purchase price through Government agency a large number of tenants are likely to be evicted from their lands due to purchase becoming ineffective. This will result in defeating the object of the tenancy legislation. To avoid this result, it is therefore considered that the agricultural lands tribunal should be empowered to recover the purchase price from tenants as arrears of land revenue and until the tribunal has failed to recover the purchase price,· the purchase should not become ineffective. It is also considered that the benefit of these provisions should be given to tenants whose purchase has already become ineffective but who have not yet been evicted from their lands under Section 32-P. This bill is intended to achieve these objects\".\n\nWe do not therefore think that the impugned Act has in any way affected the main purpose of the Act or the object which it seeks to achieve nor do the amendments effected thereby take the provisions out of the protection given to it under Art. 3 lA of the Constitution.\n\nShri Tarkunde has referred us to the case of Maharana Shri Jayvantsinghji Ranmalsinghji etc. v. The State of Gujarat fl in support of his contention that the impugned Act infringes Art.\n\n19(1)(0 of the Con.stitution and is not saved by clause 5 thereof as the provisions of the said Act are unreasonable in that the indefinite postponement of the recovery of the price makes te payment thereof illusory, and even after the sale has become meffective the landholder is not entitled to recover the land.\n\nWhat fell for determination in the case referred to was whether as a result of the provisions of the Bombay Land Tenure\n\n(I) (1966] Supp. s.c.R. 411.\n\n'Ji -\n\nrt '\n\ns. N. llEDHI v. MAHAR1'SllTIA (Jaganmohan Reddy, J.) ...\n\nAbolition Laws (Amendment) Act 1958, particularly under Sections 3 and 4 read with Section 6 thereof certain non, permanent tenants were deemed to have become permanent tenants as from the commencement of the Bombay Taluqdari Tenure Abolition Act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of atleast the minimum of 20 times to 200 times the assessmer, t which right infringed the fundamental right of the landlord to acquire bcld and dispose of property. This result it was contended had substantially deprived the petitioners of the right which they acquired on the tiller's day by reason of the provisions contained in' Section 32 and other provisions in the parent Act as amended from time to time. The majority held that the provisions of Sections 3, 4 and 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958 insofar as they deemed some tenants as permanent tenants in possession of Taluqdari land were unconstitutional and void In that under the guise of changing the definition of a rma11ent tenant and changing a rule of evidence, it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the 'tiller's day' under Section 32-H of the parent Act.\n\nIt would appear from the J udgrnent .of S. K. Das, J. speaking for himself and Sinha C.J ., that the constitutional validity of the relevant provisions of the Taluqdari Abolition Act 1949 and the parent Act read with the Amendment Act had not been challenged before them. The decision of Dhirubha Devisingh Gohil v.\n\nThe State of Bombay (') and Shri Ram Ram Narain Medhi v.\n\nThe State of Bombay (') were cited as upholding the constitutionality of the relevant provisions of those 2 Acts. After pointing out that what has been challenged before them was the constitutional validity of the Bombay Act LVII of 1958 particularly the provisions 3, 4 and 6 of that Act, and referring to the earlier decision that this Court had held that Sections 32 to 32-R of parent Act read with the Amendment Act were designed to bring about an extinguishment or in any event a modification of the landlords rights in the estate within the meaning of Art. 31A(l)(a) of the Constitution, it was obseTVed that the right which the petitioners got of receiving the purchase price was undoubtedly a right to property guaranteed under Art. l9(1)(f) of the Constitution and was not saved by clause S thereof nor are the cases before them protected by Art. 31A. S. K. Das, J. gave the following reasoning for the aforesaid conclusion at page 438-439:\n\n\"The petitioners have three kinds of tenants-.pennanent\n\nenallll, protected tenants, and ordinary tenants.\n\nI') [1955] I S.C.ll. 691.\n\n(2) [1959] Suppl. 1 s.c.ll. 489.\n\n61()\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nApril l, 1957, the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price undet s. 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with s. 83 of the Revenue Code. Such. a claim could be contested by the tenure-holder whenever made by the tenant. But by the impugned Act 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure' land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant.\n\nWe are unable to hold that the six months' limit imposed by s. 5 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Art. 19 (5) of.the Constitution.\"\n\nThe decision in the above case is clearly inapplicable to the facts am! circumstances of the case before us and consequently in the view we have taken this petition is dismissed with costs.\n\nG.C.\n\nPetition dismissed.", "total_entities": 95, "entities": [{"text": "SRIRAM NARAYAN MEDW", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "SRIRAM NARAYAN MEDHI", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 21, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "S11C", "label": "PROVISION", "start_char": 64, "end_char": 68, "source": "regex", "metadata": {"statute": null}}, {"text": "G. 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JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "Arts. 19 and 31", "label": "PROVISION", "start_char": 286, "end_char": 301, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 367, "end_char": 375, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Agricultural Lands Act, 1948", "label": "STATUTE", "start_char": 399, "end_char": 427, "source": "regex", "metadata": {}}, {"text": "By the Constitution First Amendment Act 1951", "label": "STATUTE", "start_char": 533, "end_char": 577, "source": "regex", "metadata": {}}, {"text": "Art. 318", "label": "PROVISION", "start_char": 660, "end_char": 668, "source": "regex", "metadata": {"linked_statute_text": "By the Constitution First Amendment Act 1951", "statute": "By the Constitution First Amendment Act 1951"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1342, "end_char": 1349, "source": "regex", "metadata": {"linked_statute_text": "By the Constitution First Amendment Act 1951", "statute": "By the Constitution First Amendment Act 1951"}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 1396, "end_char": 1404, "source": "regex", "metadata": {"linked_statute_text": "By the Constitution First Amendment Act 1951", "statute": "By the Constitution First Amendment Act 1951"}}, {"text": "Further changes in the Act were made by the impugned Act", "label": "STATUTE", "start_char": 1406, "end_char": 1462, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1562, "end_char": 1569, "source": "regex", "metadata": {"linked_statute_text": "Further changes in the Act were made by the impugned Act", "statute": "Further changes in the Act were made by the impugned Act"}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 2242, "end_char": 2250, "source": "regex", "metadata": {"linked_statute_text": "Further changes in the Act were made by the impugned Act", "statute": "Further changes in the Act were made by the impugned Act"}}, {"text": "Art 31A", "label": "PROVISION", "start_char": 2286, "end_char": 2293, "source": "regex", "metadata": {"linked_statute_text": "Further changes in the Act were made by the impugned Act", "statute": "Further changes in the Act were made by the impugned Act"}}, {"text": "Arts. 14, 19 and 31", "label": "PROVISION", "start_char": 2365, "end_char": 2384, "source": "regex", "metadata": {"linked_statute_text": "Further changes in the Act were made by the impugned Act", "statute": "Further changes in the Act were made by the impugned Act"}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 2691, "end_char": 2699, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 14, 19 and 31", "label": "PROVISION", "start_char": 3219, "end_char": 3238, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 3I", "label": "PROVISION", "start_char": 3811, "end_char": 3818, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 4076, "end_char": 4083, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4091, "end_char": 4112, "source": "regex", "metadata": {}}, {"text": "Maharashtra Act XXXI of 1965", "label": "STATUTE", "start_char": 4468, "end_char": 4496, "source": "regex", "metadata": {}}, {"text": "Bombay Act XLVII of 1948", "label": "STATUTE", "start_char": 4618, "end_char": 4642, "source": "regex", "metadata": {}}, {"text": "Bombay Act XIII of 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{"text": "Constitution of India", "label": "STATUTE", "start_char": 6294, "end_char": 6315, "source": "regex", "metadata": {}}, {"text": "Section 32 to 32", "label": "PROVISION", "start_char": 6739, "end_char": 6755, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 7058, "end_char": 7068, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 32A", "label": "PROVISION", "start_char": 7089, "end_char": 7100, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 7191, "end_char": 7201, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 7439, "end_char": 7449, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32", "label": "PROVISION", "start_char": 7452, "end_char": 7462, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7542, "end_char": 7551, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 7602, "end_char": 7612, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32", "label": "PROVISION", "start_char": 7659, "end_char": 7669, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32", "label": "PROVISION", "start_char": 8956, "end_char": 8966, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32", "label": "PROVISION", "start_char": 9060, "end_char": 9070, "source": "regex", "metadata": {"statute": null}}, {"text": "Revenue recovery Act", "label": "STATUTE", "start_char": 9648, "end_char": 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"start_char": 11229, "end_char": 11275, "source": "regex", "metadata": {}}, {"text": "revenue recovery Act", "label": "STATUTE", "start_char": 13953, "end_char": 13973, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 14391, "end_char": 14397, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 14, 19 and 31", "label": "PROVISION", "start_char": 14417, "end_char": 14436, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 14780, "end_char": 14796, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 14924, "end_char": 14931, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "List II and therefore the legislature was competent to ellllct the Amendment Act", "label": "STATUTE", "start_char": 15085, "end_char": 15165, "source": "regex", "metadata": {}}, {"text": "Section 2(5)", "label": "PROVISION", "start_char": 15229, "end_char": 15241, "source": "regex", "metadata": {"linked_statute_text": "List II and therefore the legislature was competent to ellllct the Amendment Act", "statute": "List II and therefore the legislature was competent to ellllct the Amendment Act"}}, {"text": "Section 2(9)", "label": "PROVISION", "start_char": 15401, "end_char": 15413, "source": "regex", "metadata": {"linked_statute_text": "List II and therefore the legislature was competent to ellllct the Amendment Act", "statute": "List II and therefore the legislature was competent to ellllct the Amendment Act"}}, {"text": "Section 2(5)", "label": "PROVISION", "start_char": 15591, "end_char": 15603, "source": "regex", "metadata": {"linked_statute_text": "List II and therefore the legislature was competent to ellllct the Amendment Act", "statute": "List II and therefore the legislature was competent to ellllct the Amendment Act"}}, {"text": "Art. 31A(l)(a)", "label": "PROVISION", "start_char": 15767, "end_char": 15781, "source": "regex", "metadata": {"linked_statute_text": "List II and therefore the legislature was competent to ellllct the Amendment Act", "statute": "List II and therefore the legislature was competent to ellllct the Amendment Act"}}, {"text": "Sections 32 to 32", "label": "PROVISION", "start_char": 16069, "end_char": 16086, "source": "regex", "metadata": {"linked_statute_text": "List II and therefore the legislature was competent to ellllct the Amendment Act", "statute": "List II and therefore the legislature was competent to ellllct the Amendment Act"}}, {"text": "Art. 31A(l)(a)", "label": "PROVISION", "start_char": 16337, "end_char": 16351, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 14", "label": "PROVISION", "start_char": 16476, "end_char": 16484, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 3J", "label": "PROVISION", "start_char": 16723, "end_char": 16730, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 17041, "end_char": 17049, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 14, 19 and 31", "label": "PROVISION", "start_char": 17111, "end_char": 17130, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 17501, "end_char": 17507, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 14, 19 and 31", "label": "PROVISION", "start_char": 18053, "end_char": 18072, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Revenue Recovery Act", "label": "STATUTE", "start_char": 18550, "end_char": 18570, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 32", "label": "PROVISION", "start_char": 18641, "end_char": 18651, "source": "regex", "metadata": {"statute": null}}, {"text": "revenue recovery Act", "label": "STATUTE", "start_char": 19708, "end_char": 19728, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 20233, "end_char": 20241, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 20648, "end_char": 20658, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Tenancy Agricultural Land Act 1942", "label": "STATUTE", "start_char": 20683, "end_char": 20724, "source": "regex", "metadata": {}}, {"text": "Section 32", "label": "PROVISION", "start_char": 20859, "end_char": 20869, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy Agricultural Land Act 1942", "statute": "the Bombay Tenancy Agricultural Land Act 1942"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 20985, "end_char": 20995, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy Agricultural Land Act 1942", "statute": "the Bombay Tenancy Agricultural Land Act 1942"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 22229, "end_char": 22239, "source": "regex", "metadata": {"statute": null}}, {"text": "do not therefore think that the impugned Act has in any way affected the main purpose of the Act", "label": "STATUTE", "start_char": 22296, "end_char": 22392, "source": "regex", "metadata": {}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 22532, "end_char": 22538, "source": "regex", "metadata": {"linked_statute_text": "We do not therefore think that the impugned Act has in any way affected the main purpose of the Act", "statute": "We do not therefore think that the impugned Act has in any way affected the main purpose of the Act"}}, {"text": "Sections 3 and 4", "label": "PROVISION", "start_char": 23345, "end_char": 23361, "source": "regex", "metadata": {"linked_statute_text": "We do not therefore think that the impugned Act has in any way affected the main purpose of the Act", "statute": "We do not therefore think that the impugned Act has in any way affected the main purpose of the Act"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 23372, "end_char": 23381, "source": "regex", "metadata": {"linked_statute_text": "We do not therefore think that the impugned Act has in any way affected the main purpose of the Act", "statute": "We do not therefore think that the impugned Act has in any way affected the main purpose of the Act"}}, {"text": "Bombay Taluqdari Tenure Abolition Act 1949", "label": "STATUTE", "start_char": 23498, "end_char": 23540, "source": "regex", "metadata": {}}, {"text": "Section 32", "label": "PROVISION", "start_char": 23989, "end_char": 23999, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Taluqdari Tenure Abolition Act 1949", "statute": "the Bombay Taluqdari Tenure Abolition Act 1949"}}, {"text": "Sections 3, 4 and 6", "label": "PROVISION", "start_char": 24110, "end_char": 24129, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Taluqdari Tenure Abolition Act 1949", "statute": "the Bombay Taluqdari Tenure Abolition Act 1949"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 24556, "end_char": 24566, "source": "regex", "metadata": {"statute": null}}, {"text": "Taluqdari Abolition Act 1949", "label": "STATUTE", "start_char": 24748, "end_char": 24776, "source": "regex", "metadata": {}}, {"text": "Act read with the Amendment Act", "label": "STATUTE", "start_char": 24792, "end_char": 24823, "source": "regex", "metadata": {}}, {"text": "Sections 32 to 32", "label": "PROVISION", "start_char": 25322, "end_char": 25339, "source": "regex", "metadata": {"linked_statute_text": "After pointing out that what has been challenged before them was the constitutional validity of the Bombay Act", "statute": "After pointing out that what has been challenged before them was the constitutional validity of the Bombay Act"}}, {"text": "Act read with the Amendment Act", "label": "STATUTE", "start_char": 25352, "end_char": 25383, "source": "regex", "metadata": {}}, {"text": "Art. 31A(l)(a)", "label": "PROVISION", "start_char": 25522, "end_char": 25536, "source": "regex", "metadata": {"linked_statute_text": "Act read with the Amendment Act", "statute": "Act read with the Amendment Act"}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 25815, "end_char": 25823, "source": "regex", "metadata": {"linked_statute_text": "Act read with the Amendment Act", "statute": "Act read with the Amendment Act"}}, {"text": "s. 32H", "label": "PROVISION", "start_char": 26300, "end_char": 26306, "source": "regex", "metadata": {"linked_statute_text": "Act read with the Amendment Act", "statute": "Act read with the Amendment Act"}}, {"text": "s. 83", "label": "PROVISION", "start_char": 26424, "end_char": 26429, "source": "regex", "metadata": {"statute": null}}, {"text": "by the impugned Act 1958", "label": "STATUTE", "start_char": 26538, "end_char": 26562, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 26962, "end_char": 26966, "source": "regex", "metadata": {"linked_statute_text": "But by the impugned Act 1958", "statute": "But by the impugned Act 1958"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 27066, "end_char": 27073, "source": "regex", "metadata": {"linked_statute_text": "But by the impugned Act 1958", "statute": "But by the impugned Act 1958"}}]} {"document_id": "1971_1_671_676_EN", "year": 1971, "text": "s11\n\nSUSHILA DEVI AND ANR. '\n\nHARi SINGH AND ORS.\n\nMay 5, 1971.\n\nI K. S. HEGDE & A. N. GROVER, JJ.] B\n\nContract Act (9 of 1872), s. 56-Frustration-App/icabi/ity to leases.\n\nThe appellants were legal representatives of the owner of a village.\n\nIn January, .1947, the previous owner called for tenders for taking the property on lease for a period of three years.\n\nThe respondents• tender wail accepted and they deposited along with the tender earnest money C and security for the payment of rent. The terms of the tender required that the lease deed should be got registered by the lessee and that the lessee alone would be personally responsible for taking possession of the lands.\n\nAs a result of the partition of India the village became a part of Pakistan. Even before actual partition, because f serious communal trou hies, it was not possible for the respondents to 10 to the village either to cultivate the lands or to collect the rent from those who were cultiatins- D No Ielise deed was executed or relistered.\n\nUnder those circumstances the respondents filed a suit claiming a decree for the refund of the amounts deposited and damages. The lower courts held that the contract had become impossible of performance and decreed the suit in part.\n\nIn appeal to this Court,\n\nHELD: (1) The law of frustration as embodied ins. 56 of the Contract Act applies only to a contract that is, an agreement o lease, and does not apply to leases.\n\n[674A ; 675A-B)\n\nRa; Dhruv Dev Chand. v. Harmohinder Singh, [1968] 3 S.C.R. 33•, referred to.\n\n(2) But in this ·-case there was no .lease. Since lease was to be for a period of three years it could have been validly made only under a registered instrumen\\, and therefore, there was only an aarecment to lease and not a lease. Such an agreement comes within the scope . of s. 56 of the Contract' Act. (6750-B)\n\n(3) The impossibility contemplated by s. 56 is not confined to some- G thing which is not humanly_ .possible. _H the performance _.[Jf a contract becomes irnpra<; ticahle or use:less having regard tO the ob1ect and purpose of the p>\\rtieli then it must be held that' the performance of the contract becan1e 'Jmpossible.\n\nBut the supervening events -should , take away the very bast£ of the contract and it .should be of such a 'character that it\n\nstriker. at :he root of the contract. [676C:Dl\n\nJn tr.e ptent case, the respondents sought to take on lease the proper- H ties with a view to enjoy the properties either by personally cultivating them tr by &Ub-leasill8·them. to others. That abject became impossible because of supervening even!S.\n\nUnder the terms of the agreement the\n\nSUPREME COURT U:PORTS (1971] SUPP. s.c.&.\n\nlessor was not expected to deliver the actual possession of the properties but because of the prevailing circumstances it was impossible for the respondents to either take possession of the properties or even to collect rent from the cultivators. Therefore. the contract had become impossible of performance. [676D-F]\n\nSatyabrata Ghose v. Mugneeram Bangur and Co., [1954] S.C.R. 310. referred to.\n\nOVIL APPELLATE JURISDICTION : Civil Appeal No. 1225 of 1966.\n\nAppeal by special leave from the judgment and decree dated December 14, 1964 of the Jammu & Kashmir High Court in Civil First Appeal No. I of 1960.\n\nS. T. Desai and P. C. Bhartari, for the appellants.\n\nHardev Singh and Hirai Lal Kapoor, for respondents Nos. 12A to 12C.\n\nThe Judgment of the Court was delivered by\n\nBegde, J.-The appellants are the legal representatives of Dewnani Vidya Wati.\n\nThe said Vidya Wati was the owner of the village known as Kotli Delbagh Rai in Tehsil Gujranwalla.\n\nIt appears that she used to give the lands in that village on lease for a term of years by calling for tenders and accepting the highest tender.\n\nIn about January 1947, she published a notice inviting tenders from interested persons for taking those lands on lease for a period of three years beginning from kharif 1947 to Rabi 1950.\n\nThe tenders had to be submitted before January 1, 1947.\n\nClause (3) of the tender notice stated that \"the terms of lease can be perused in the Dewan estates office Jammu before filing of the tenders.\n\nNo excuse of ignorance as to the time will be entertained after the acceptance of the lease.\"\n\nA note containing the terms on which the lands would be leased was exhibited for the information of the tenderers in the office of the lessor.\n\nFor our present purpose the only terms that are relevant are those contained in Clauses 4 and 5 of the note. Clause 4 reads :\n\n\"According to the terms of the tender, the lessee shall be the essence of contract.\n\nIn case the lessee is 15 days from the date of the acceptance of the lease. The expenses of the completion and Registration of the deed shall be borne by the lessee.\n\nThe period of 15 days fixed for the completion and registration of the lease deed shall be the essence of contract In case the lessee is negligent to get the lease deed registered, the lease shall\n\n~USlllLA •• HARi SINGH (Hegde, J.) 673\n\nstand cancelled.\n\nThe nest money and the securitY, A shall also be forfeited.\n\nA fresh tender for the lands shall be called for and any loss caused in this connection shall be borne by the lessee.\"\n\nClause 5 says :\n\n\"The lessee shall be personally responsible to get the possession of the lands under Patta after the registration of lease deed.\n\nOn getting the possession of the land the lessee shall get the counter part of the lease deed executed from his cultivators and deposit the same in the estates office.\n\nAnd shall furnish a certificate for any part of land which he eeps for his self-cultivatio~. He shall inform and deposit fresh counter lease deed m case of any change in his cultivators and shall get a written receipt from the Manager for the same.\"\n\nThe respondents tendered in response to the notice calling for tenders.\n\nTheir tender was accepted.\n\nAlongwith the tender they deposited a sum of Rs. l,000 as earnest money.\n\nLater on they deposited a sum of Rs. 34,000 as security for the payment of rent. ·\n\nNo lease was executed or registered.\n\nFrom the material on record, it is not possible to find out as to who was responsible for the non-execution of the lease.\n\nBut that aspect is not material for our present purpose.\n\nThe landlord has not sought to cancel the contract.\n\nThe agreement to lease continued to be in force even after the per, od within which the lease deed had to be registered.\n\nTehsil Gujranwalla became a part of Pakistan as a result of partition of India on August 15, 1947. Even before the partition Vidya Wati as well as the respondents had migrated to India because of the com111unal disturbances.\n\nConsiderable evidence was led in the case to establish that even before the actual partition of India took place, because of the serious communal troubles, it was not possible for the respondents to go to Gujranwalla either to cultivate the lands or even to collect the rent from those who were cultivating the lands.\n\nUnder those circumstances the respondents called npon Vidya Wati to refund the amount deposited as security for the payment of rent as well as to pay them a sum of Rs. 2,000 as damages.\n\nShe declined to comply with that demand.\n\nThereafter they filed the suit from which this appeal arises claiming a decree for Rs. 36,000, Rs. 34,000 as refund of the amonnt deposited and Rs. 2,000 as damages.\n\nVidya Wati\n\n43- .( S.C.lndia/71\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nresisted the suit on various grounds.\n\nShe pleaded that she had done all that she was expected to do under the contract.\n\nTherefore the claim made against her was not sustainable. According to her the lands sought to be leased were in the possession of the actual cultivators ; she was not required to evict those cultivators and deliver physical possession to the respondents. She was only required to deliver the landlord's possession of the lands proposed to be leased.\n\nAccording to her she had given to th~ respondents such possession as she could have given under the circumstances.\n\nShe further pleaded that the doctrine of frustration is not applicable to leases.\n\nIn addition she p!.eaded that the suit was barred by limitation.\n\nShe also contended that under the contract she was entitled to forfeit the amount deposited as security.\n\nAt the trial most of the contentions advanced by Vidya Wati were given up.\n\nThe only issue on which the parties went to trial was whether the contract was frustrated because of the supervening circumstances mentioned earlier.\n\nThe trial court rejecting the contention of the plaintiffs came to the conclusion that Vidya Wati was not expected to deliver physical possession of the properties intended to be leased. She had only to give such possession as she had.\n\nBut at the same time it upheld the contention of the plaintiffs that the agreement to lease was frustrated. ln appeal a Division Bench of the High Court of Jammu and Kashmir agreed with the trial court that the contract referred to in the plaint was frustrated becalJSI) of the supervening circumstances. It opined that the doctrine of frustration applied to leases as well.\n\nIt further held that under the contract Vidya Wati was expected to deliver actual possession of the property to the plaintiffs and that she had neither delivered physical nor even symbolic possession of the same to the plaintiffs.\n\nIn the result it affirmed the decision of the trial court. Thereafter this appeal has been brought by special leave.\n\nDiiring the pendency of the appeal to the High Court Vidyawati died and the present appellants were brought on record as her legal representatives.\n\nThe only question that falls for decision in this appeal is whether the contract referred to in the plaint has become void in view of the circumstances established. In other words had the performance of the contract become impossible in view of the prolonged and widespread communal troubles and the long drawn out tension that prevailed between India and Pakistan.\n\nThe law of frustration is embodied in Section 56 of the Contract Act. That section to the extent material for our present purpose reads :\n\n' \"A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event\n\nSUSHILA v. HARi SINGH (H egde, J.)\n\nwhich the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.\"\n\nThe conclusion of the Division Bench of the Jammu and Kashmir High Court that Section 56 of the Contract Act applies to leases as well cannot be accepted as correct.\n\nSection 56 applies only to a contract.\n\nOnce a valid lease comes into existence the agreement to lease disappears and its place is taken by the lease.\n\nIt becomes a completed conveyance under which the lessee gets an interest in the property. There. is a clear distinction between a completed conveyance and an executory contract. Events which discharge a contract do not invalidate a concluded transfer-see Raja Dhruv Dev Chand v. Harmohinder Singh and anr(').\n\nIn view of that decision the view taken by some of the High Courts that Section 56 of the Contract Act applies to leases cannot be accepted as correct.\n\nFurther the English decisions bearing on the point can have no further relevance.\n\nBut in thjs case there was no lease. There was .only an agreement to lease.\n\nAs seen earlier, the agreement between the parties was that the properties in question should be leased to the plain- 'liffs for a period of three years.\n\nSuch a lease could not have been validly made except under a registered instrument. As seen earlier the contract between the parties provided that the lease deed should be registered within 15 days from the date of the acceptance of the tender.\n\nFor one reason or the other, the contemplated lease deed was neither executed nor registered.\n\nThere. fore we have before us only an agreement to lease and not a lease.\n\nSuch an agreement comes within the scope of Section 56 of the Contract Act.\n\nWe agree with the trial court that under the terms of agreement Vidya Wati was not expected to deliver actual possession of the properties sought to be leased.\n\nThe contract between the parties provided that : '\n\n\"The lessee shall be personally responsible to get the possession of the lands under Patta after the registration of lease deed\".\n\nIn our opinion on this point the conclusion of the appellate court is not sustainable.\n\nBut in fact as found by the trial court as well as by the appellate court, it was impossible for the plaintiffs to even get into Pakistan.\n\nBoth the trial court as well as the appellate court have found that because of the prevailing circumstances, it was impossible for the plaintiffs to either to take possession of the properties intended to be leased or even to collect rent\n\n(1) [1968] 3 S. c. R. 339.\n\nSUPREME COURT REPORTS [1971) un. s.c.R'\n\nfrom the cultivators.\n\nFor that situation the plaintiffs were not responsible in any manner. As observed by this Court in Satya~ brata Ghose v. Mugneeram Bangur and Co. and anr ('), the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act The view that Section 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principles of English Jaw on the subject of frustration is not correct. Section 56 of the Indian Contract Act Jays down a rule of positive Jaw and does not leave the matter to be determined according to the intention of the parties.\n\nThe impossibility contemplated by Section 56 of the Contract Act is not confined to something which is not humanly possible. If the performance of a contract becomes impracticable or useless having regard to the object and purpose the parties had in view then it must be held that the performance of the contract has become impossible.\n\nBut the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract.\n\nFrom the facts found in this case it is clear that the plaintiffs sought to take on lease the properties in question with a view to enjoy those properties either by personally cultivating them or by sub-leasing them to others.\n\nThat object became impossible because of the supervening events.\n\nFurther the terms of the agreement between the parties relating to taking possession of the properties also become impossible of performance.\n\nTherefore we agree with the trial court as well as the appellate court that the contract had become impossible of performance.\n\nIn the result this appeal fails and the same is dismissed. But taking into consideration the fact that both the plaintiffs as well as the defendant had become the victim of circumstances which were beyond their control, we direct the parties to bear their own costs in this appeal.\n\nV. P. S.\n\nAppeal dismissed.\n\n(I) [1954) S. C. R. 310.", "total_entities": 21, "entities": [{"text": "s11", "label": "PROVISION", "start_char": 0, "end_char": 3, "source": "regex", "metadata": {"statute": null}}, {"text": "HARi SINGH AND ORS", "label": "RESPONDENT", "start_char": 30, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "HARi SINGH AND ORS", "offset_not_found": false}}, {"text": "I K. S. HEGDE", "label": "JUDGE", "start_char": 65, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 81, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "A.N. 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A. V. COLLEGE BATBINDA, ETC.\n\nSTATE OF PUNJAB & ORS.\n\nMay 5. 1971\n\n[S. M. Snrn. c. J .• G. K. MITTER, K. s. HEGDE, A. N. GROVER AND B\n\nP. JAGANMOHAN REDDY, JJ.]\n\nPunjabi University Act, 1961 (35 of 1961), s. 4(3}-University making Punjabi the sole medium of Instruction and examination-Ation ultra vrres the power conferred by section-Also infringes rights of religious minority to conserve their script and administer theif institutions.\n\nThe petitioners are educational institutions founded by the D.A.V.\n\nCollege Trust and Society registered under the Societies Registration Act\n\nas an association comprised of Arya Samajis. These institutions were. before the reorganisation of the State of Punjb in 1966, affiliated to the Punjab University constituted under the Punjab University Act, 1947. The Punjabi University was constituted in 1961 by the Punjabi University Act (35 of 1961). After the reorganisation, the Punjab Government under s. 5 (I) of the Act specified the areas in which the Punjabi'• University exercised its power and notified the date for the purpose of the section. The effect of the notification was that the petitioners were deemed to be associated with and admitted to the priveleges of tQe University and ceased to be associated in any way with the Punjab University. The Central Government notified under s. 72 of the State Reorganisation Act that the Punjab University ceased to function in the areas notified by the Punjab Government. Thereafter, by a circular dated June 15, 1970, the University declared that Punjabi \"will be the sole medium of instruction and examination for the pre-university even for science group with effect from the academic session 1970-71\".\n\nLater, the University by_ circular dated July :?, 1970 relaxed this directive in some special cases of pre-university students.\n\nOn October 7, 1970 a further modification was made allowing English as an alternative medium of examination but qualifying in the elementary Punjabi papers would be obligatory in the case of such students offering English medium. In petitions filed under . .\\rt. 32 of the Constitution the main contentions urged were that s. 4(2) of the Act did not empower the University to make Punjabi the sole medium of instruction; that if it did the State Legislature had no competence to enact such a provision because that power was vested in the Union Parliament under Entry 66 of List I; and that in any case the circular and the Notification offended the peti~\n\ntioners right to conserve their script and administer their institutions in their own way. ·\n\nHELD: (i) The circular <>f June 15. 1970 as amended by the circulars of July 2, 1970 and October 7, 1970 is invalid and ultra vires the powers vested in the University.\n\nThe University by adopting Punjabi as the sole or exclusive medium for the colleges affiliated to the University, notwithstanding the concessions granted, acted in excess of the power conferred on it. Section 4(3) of the Act, by the use of the definite article a prefixed to the word medium, does not require Punjabi to be made the exclusive medium of instruction.\n\nThis conclusion is further reinforced by the nature of the power which is only \"to progressively adopt it as a medium of instruction and examination for as many subjects as possible\". [686H-687D]\n\nSUPREME COURT REPORTS (1971] SUPP. S.C.ll\n\nA Gujarat University Ahmedabad v. Krishna Ranganath Mudholkar, (1963] Supp. I S.C.R. 112, relied on.\n\nR. Chitralekha v. State of Mysore, (1964] 6 S.C.R. 368, referred to.\n\n(ii) Further, the petitioners are institutions maintained by a religious minority and as such the directive for the exclusive use of the Punjabi language in the Gurmukhi script as the medium for instruction and for examination in all colleges directly infringes the petitioners right to Consume their script and administer their institutions. The relaxation made subsequently in the earlier directives .of the University makes little difference because, the concession does not benefit students with Hindi as the medium as Devanagari as their script The right of the minorities to establish and administer educational institutions of their choice includes the right to have a choice of the medium of instruction also. This would be the result of reading Art. 30(1) with Art. 29(1).\n\nNo inconvenience or difficulties, administrative or financial can justify the infringement of guaranteed rights. (6830-F; 6840-H]\n\nState of Bombay v. Bombay Education Society, (1955] I S.C.R. 568, referred to.\n\nORIGINAL IUR!sDicnoN : Writ Petitions Nos. 353 and 354 of D 1970.\n\nPetition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.\n\nA. K. Sen, and Naunit Lal, for the petitioners (in both the petitions).\n\nM. C. Chagla and R. N. Sachthey, for respondent No. I (in W. P. No. 353 of 1970).\n\nH. L. Sibbal, Advocate-General, Punjab and R. N. Sachthey, for respondent No. I (in W. P. Np. 354 of 1970).\n\nV. M. Tarkunde, Harbans Singh and K. R. Nambiar, for respondent No. 2 (in W. P. No. 353 of 1970).\n\nKuldip Singh and Harbans Singh, for respondent No. 2 (in W. P. No. 354 of 1970).\n\nThe Judgment of the Court was delivered by\n\nP. Jaganmohan Reddy, J.-These two Writ Petitions under Article 32 challenge the vires and constitutionality of Sections 4(2\\ and 5 of the Punjabi University Act 35 of 1961 as amended (hereinafter called \"the University\" or \"the Act\", as the case may be).\n\nIt is also prayed that (i) the Notification of the Punjab Government No. 5592-ED-1(2£)/59/12447 dated 13-5-1969 extending the area in which the University shall exercise its powers and (ii) the Circular of the University No. 8617-8661 /GS/Misc. dated 15-6-70\n\nas modified by Circular No. 9866-989G/DSG dated 2-7-70 enclosing the decision of the Senate Sub-Committee dated 1-7-70 be quashed as being illegal, unconstitutional and void.\n\nThe Petitioners are educational institutions founded by, D. A. V. College Trust and Society registered under the Societies Registration Act as an association comprised of Arya Samajis.\n\nThese Colleges were affiliated to the Punjab University before the reorganisation of the State of Punjab in 1966.\n\nThe University had been constituted in 1961 and by a Notification dated June 30, 1962, it was given jurisdiction over a radius of .10 miles from the office of the University at Patiala which seat had earlier been notified on 3().4-1962 as a Seat of the University.\n\nAs the Writ Petitioners were not within the 10 miles radius of the University they continued to be affiliated to the Punjab University.\n\nAfter the reorganisation the Punjab Government by Notification dated 13-5-1969 issued under sub-section (!) of Section 5 of the Act specified the Districts of Patiala, Sangrur, Bhatinda and Rupar as the areas in which the University exercised its power and under sub-section (3) of the sald Section, 30th June 1969 was notified as the date for the purpose of the said Section. The effect of this Notification was that the Petitioners were deemed to be associated with and admitted to the privileges of the University and ceased to be associated in any way with or to be admitted to any privileges of the Punjab University.\n\nIt may also be mentioned that the Central Government by a Notification dated 12-9-1969 in exercise of the powers conferred on it by Section 72 of the Reorganisation Act diiected that the Punjab University constituted under the Punjab University Act 1947 shall cease to function and operate in the areas of the very four Districts regarding which the Punjab Government had earlier issued a Notification under Section 5 of the Act.\n\nThereafter the University by the impugned Circular dated 15-6-1970 issued to all the Principals of the Colleges admitted to the privileges of the University declared that Punjabi \"will be the sole, medimll of instruction and examination for the pre-University even for Science group with effect from the Academic Session\n\n1970-71\".\n\nLater the University by a letter dated 2-7-1970 informed the Principals that a decision of the Senate Sub-Committee dated 1-7-1970 as enclosed therewith was made giving \"relaxation in some special cases of pre-University students seeking admission for the year 1970\".\n\nThis enclosure was in Punjabi, an English translation of which would show that the relaxation was to permit students who had passed their matriculation examination with English as their medium of examination to be taught and to answer examination papers in the English medium at pre-University level 'only so long as the other Universities and School bodies of Punjab\n\n~80\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\ndid not adopt Punjabi as their medium of instruction'.\n\nOn 7-10-70 the University made a further modification and it was decided by the Senate \"that English be allowed as an alternative medium of examination for all students for the courses for which the Universi:y had adopted the regional language as the medium.\n\nIt was however uuderstood that qualifying in the elementary Punjabi paper would, as already decided by the University be obligatory in the case of such students offering English medium as had not studied Punjabi as an elective or optional subject even upto the middle standard\".\n\nTh~ resolution of 1-7-1970 further decided that students availing themselves of the facilities given thereunder will have to pass a compulsory course in Punjabi of 50 marks of which a minimum of 25 marks will be required to pass that course.\n\nIt is alleged that as a result of these Notifications and resolutions of the University the Petitioners Colleges have to teach all subjects including Science subjects in Punjabi and their students have to write examinations in the Gurumukhi script except in the cases exempted in the resolution of the Senate sub-Committee dated 1-7-1970.\n\nIt was therefore submitted that the Notification dated 15-6-1970 will result in the lowering of educational standards inasmuch as the students who have passed Matriculation examination in Hindi will be handicapped in studying their subjects in Punjabi and writing answers in Gurumukhi script ; that the students who have to prepare their subjects and write answers in Punjabi alone in the University examintion wiJJ be at a disadvantage in seeking admission to professional Colleges such as the Engineering College, Medical College, Business Management College and other Colleges and in the study of Science subjects; and that the stuJents who passed examination through Punjabi medium will be handicapped in the competitive examinations for the I. A. S., in research work and in various other fields.\n\nIt is further stated that the impugned notification has also resulted in lowering the standard in all respects, as there is (i) no coordination for teaching Science subjects and other subjects in higher Clas3es like B. A. and B.Sc., through the medium of Punjabi, (ii) no correspoi::ding arrangements have been made for answering papers in the examination for admission to the Indian Institute of Technology and All India Institute of Medical Sciences and other competitive examinations for Central Services.\n\nThe main contention of the Petitioners however, was that Section 4(2) of the Act does not empower the University to make Punjabi the sole medium of instruction ; that it is not within the legislative power of the State under Entry 11 of List II to make Punjabi the sole medium of instruction, which power in fact vested in the Union Parliament under entry 66 of List I and that consequently the provisions of Section 4(2) and the Notification and the Circulars referred to above are ultra vires and unconstitutional.\n\nIn so far as the medium of instruction in Punjabi with\n\nGurumukhi as the script is sought to be imposed on the educational institutions established by the Arya Samajis a religious denomination, they also offend Arts. 26(1), 29(1) and 30(1) of the Constitution.\n\nA preliminary objection has been urged on behalf of the Respondents that in a Petition under Article 32, only where it is show.n that there is a violation of fundamental right that the validity of the legislation or of the legislative competence can be raised and determined, but in these cases as there is no violation of Article 14, 26, 29 and 30 of the Constitution the Petitioners ought not be allowed to challenge the vires of the Act on the ground of the competence of the legislature to enact the impugned law.\n\nThis question has been dealt with fully in the batch of petitions-in which we have just pronounced Judgment, where we had also considered the contentions of the learned Advocate General of Punjab and Shri Tarkunde, the learned Counsel for Respondents 2 in this behalf and hence we do not purpose again to reiterate the reasons in support of the conclusion that a petition under Article 32 in which petitioners make out a prima facie case that their fundamental rights are either threatened or violated will be entertained by this Court and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place. On the other objection that the Arya Samaj is neither a linguistic or religious minority nor is it a religious denomination we held that it was unnecessary to go into the question of whether it is a separate religious denomination for the purpose of Article 26(1) (a) or a linguistic minority for the purposes of Article 30(1) because in our view it would be sufficient for the petitioners if they could establish that they had a distinct script of their own and they were a religious minority, to invoke the protection of Article 29(1) and\n\n30(1).\n\nWe had in those Writ Petitions held that what constitutes a linguistic or religious minority must be judged in relation to the State inasmuch as the impugned Act is a State Act and not in relation to the whole of India.\n\nIn this view we rejected the several contentions which are also urged in these petitions namely that Hindus being a majority in India are not a religious minority in Punjab and held that the Arya Samajis who are part of the Hindu community in Punjab are a religious minority and that they had a distinct script of their own the Devnagri which entitled them to invoke the guarantees under the aforesaid provisions of the Constitutiubscribe to the deca/ogue and its beliefs in the cannons of Vedic interpretation laid down by its founder, but, all outsiders who are non-Hindus must undergo a ceremony of purification or Shudhi. Under bye-law 32 of the Constitution of the Arya Somoj the proceedings of all meetings and sub-committees will have to be written in Arya Bhasha-in Hindi language and Devnagari character.\n\nThe Dayanand Anglo Vedic College Trust, formed to perpetuate the memory of the founder of the Arya Samaj runs various institutions in the Country. The petitioners-<:olleges managed and administered by the Trust and the Managing Society were, before the Punjab Reorganisation Act, affiliated to the Punjab University constitute<) under East Punjab Act 7 of\n\n1947. After the reorganisation of the State of Punjab in 1969, the Punjab Legislature passed the Guru Nanak University (Amritsar) Act (21 of 1969) establishing a University. In exercise of the powers conferred by s. 5 the first respondent specified the districts in the State of Punjab over which the University was to exercise its power and notified the date on which the colleges in the areas so specified ceased to be affiliated to the Punjab University and were to be associated with and admitted to the privileges of the new university. Sub-section (2) of s. 4 of the Act enacted that the University \"shall make provision for study and research on the life and teachings of Guru Nanak and their cultual and religious impact in the context of Indian and World Civilisation; and sub.s. (3) enjoined the Uni versity \"to promote studies to provide for research in Punjabi language and literature and to undertake measures for the development of Punjabi language, literature and culture\". By cl. 2(1) (a) of the Statutes ill Ch. V, framed under the Act, the colleges were required to have a regularly constituted governing body consisting of not more than 20 persons approved by the senate including, among others, two representatives of the University and the principal of the College, ex officio. Under Cl. (I} (3) if these requirements were not complied with the affi.liation was liable to be withdrawn. By cl. 18 the staff initially appointed were to be approved by the Vice Chancellor and subsequent changes had to be reported to the University for the Vice-Chancellor's approval.\n\nAnd by cl. 18 non-government colleges were to comply with the requirements !aid down in the ordinance governing service and conduct of te11chers.\n\nD. ,\\, V. COLLEGE V. PUNJAB 689\n\nIn petitions filed under Art. 32 of the Constitution it was contended A that the main object of the Act was to propagate Sikh religion and to promote Punjabi language in Gurumukhi script and that since the petitioners -institutions belonged to a minority based on religion and language their compulsory affiliation violated Arts. 29(1) and 30(1) of the Constitution.\n\nIn support of this it was submitted that s. 5(3) of the Act and also els. 2(1)(a), 17 and 18 of the statutes in Ch. V. interfered with the management of minority institutions and therefore violated the guarantee under Art. 30; B that tho statutory affiliation being compulsory affected the petitioners freedom of association guaranteed under Art. 19(1) (c); and that ss. 4(:) and 4(3) contravened Arts. 29(1) & 30(1) and was discriminatory.\n\nThe petitioners further contended that in view of s. 72 of the Reorganisation Act the State Legislature was not competent to enact s. S which eo1powered the State Government bf notification to compulsorily disaffiliate from the Punjab University all colleges including the colleges of minorities and affiliate them to the new University. The respondents contended inter alia, C that education being a State subject, the state legislature alone w:i.s competent to legislate in respect of universities and that in any case in a petition under Art. 32 this Court could not go into the question of legislative competence if the law that was in1pugned did not in any way affect the fundamental rights of the petitioners.\n\nHELD: (1) Whether or not ultimately any fundamental right ; n fact is threatened or violated so long as a prima facie case of such a threat or violation is made out a petition under Art. 32 must be entertained. So long as the petitioner makes out a prima facie case that his fundamental rights are affected or threatened he cannot be prevented from challenging that the law complained of, which affects or invades those rights, is invalid because of \\Vant of legislative competence.. But the proposition that once the petition is entertained, irrespective of whether it is found ultimately that the Jaw has infringed the fundamental rights of the petitioners, the vires of the legislation or the competence of the legislature to enact the impugned legislation must be gone into and determined, is not valid.\n\nIf in fact, the law does not. even on the assumption that it is valid, infringe any fundamental rights this Court will not decide that question in a pet.i. tion under Art.\n\n32. The reason is that no petition under Art. 32 will be entertained if fundamental rights are not affected and if the impugned Jaw does not affect the fundamental rights it would be contrary to this principle to determine whether that law in fact has legislative competence or not. In the present case none of the provisions of the Act offend any of the fundamental rights of the petitioners. Therefore, it is not necessary to go into the question of legislative i; ornpetence or to decide upon the validity of s. 5.\n\n[713A-B; 714H]\n\nMoham1nad Yasin v .. The Town Area Committee, Jala/abad ,(: Anr. [1952] S.C.R. 572, Charanjitlal Chowdhury v. The Union of Indio &: Or\" ..\n\n[1970] S.C.R. 869, Kyerbari Tea Co. Ltd. &: Anr. v. State of Assam, [1964] G 5 S.C.R. 975 and Saghir Ahmad v. State of U.P., [1955] S.C.R. 707, refetred to.\n\n(2) A reading of Arts. 29(1) and 30(1) would lead to the conclusion that a religious or linguistic minority has a right to establish and administe1: educationar institutions of its choice for effectively conserving its distinctive language script or culture subject to the regulatory power of he State and cl. (2) of Art. 29. While this is so, these two articles are not interlinked nor does it permit of their being always read together. [695F] H\n\nRev. Father W. ProQst &: Ors. v. State of Bihar &: Ors., [1969] 2 S.C.R. 73, referred to. 44-1 S.C. India/' l\n\n6!JO\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\n(3) Religious or linguistic minorities are to be determined only in relation to the particular legislation which is sought to be impugned; if it ii State Legislature these minorities have to be determined in relation to the population of the State.\n\nA linguistic minority for the purpose of _.\\rt 30(1) is one which must at least have a separate spoken language; it is not necessary that the language should also have distinct script. [697BJ\n\nRe: Kera/a Education Bill, 1957, [1959) S.C.R. 995, referred to.\n\n(4) (a) The Arya Samaj,' by \"rejecting the manifold absurdities found in Smriti and in tradition and in seeking a basis in the early literature for a purer and more rational faith\" can be considered to be a religious n1inority, at any rate, as part of the Hindu religious minority in the State of Punjab. [7000)\n\n(b) The Arya Samajis have a distinct script of their own, namelJ C Devnagri. [701B]\n\n(5} The Arya Samajis are entitled to invoke the right guaranteed bJ Art 29(1), because, they are a section of citizens having a distinct script; they are entitled to invoke Art. 30(1), because they are a religious minority.\n\n[701BJ\n\n[In view of the holding that Arya Samajis are a religious minority the Court did not find it necessary to consider whether they are a linguistic minority or whether they are a religious denomination.] [698G)\n\n(6) Clauses 2(1) (a) and 17 of Ch.\"V of the Statutes interfere with the right of the religious minority to adminlster their educational institutions.\n\nThese provisions cannot be made as conditions of affiliation non compli ance with which would involve disaffiliation; consequently, they have to be struck down as offending Art. 30(1).\n\n[709B]\n\n\nClause 18 does not suffer from the same vice as cl. 17, because, that provision empowers the University to make ordinances prescribing regula .. tions governing the conditions of service and conduct of teachers and these are enacted in the larger interest of the institution to ensure their efficiency and excellence. While the power to make ordinances in respect of the\n\nmatters referred to is unexceptional the ntaure of the infringement of tho right, if any, under Art. 30(1) will depend on the actual purpose and import of the ordinance \\vhen made, and the manner in which it is likely to affect the administration of the educational institution. [709C]\n\n(7) Assuming that the Punjab Legislature has the competence to enact the Act, sub-ss. (2) and (3) of s. 4 do not offend, by themselves, any of the rights under Arts. 29(1) & 30(1). [702A)\n\n(a) Sub-section (2) merely indicates that the University can institute courses of study or provide research facilities for any student of the Uni .. versity whether be belongs to the majority or the minority community to engage himself in such study or research; but, this study and research on the life and teachings of Guru Nanak must be a study in relation to their culture and religious impact in tho context of Indian and World cMlizations.\n\nTo provide for academic study of life and teachina or tho\n\nD. A. y. COLLEGE v. PUNJAB\n\nphilosophy or culture of any great saint of lndia in relation to or the impact on the Indian and World civilizations cannot be considered as making provision for religious instructions. [703G]\n\n(b) While the State or the University has every right to provide for , the education of the majority in the regional medium, it is subject to the restrictions contained in Arts. 25 to 30.\n\nNeither the University nor the State can provide for imparting education in a medium of instruction in a language and script which stifles the language and script of any section of the citizens.\n\nBut sub-s. (3) does not lend itself to the interpretation that the medium of instruction of all affiliated colleges has to be_ Punjabi.\n\nThe provision is for the promotion of Punjabi language, literature and culture. Therefore, sub-section (3) does not transgress the guarantee under Art. 29(1).\n\n[704AD]\n\n(c) The facts of the case do not attract Art. 14. The State of Punjab is created as a unilingual state with Punjabi as its language and if provision js made for study of punjabi language that does not furnish a ground for discrimination nor can the provisiob for the study of the life and teaching of Guru Nanak afford any cause for complaint, since; in neither case there is any compulsion on any person to undertake such studies; nor is .any of the communities prohibited from pursuing studies in respect of\n\neither Hindi or the life and teachings of any Hindu saint. [704F]\n\n(8) The notificatioo under s. 5(3) compulsorily affiliating the colleges to the University does not contravene the right of freedom of Association guaranteed under Art. 19(1) (c).\n\nSection 5 does not interfere ·.vith the D.A.V. College Trust and Management Society by any attempt to form an Association with the University. [706B]\n\n\nSmt. Damayanti Narang v. Union of India, W.P. No. 91 of 1964, quq and could hardly be sait1 to be an income for-the purposes of running the University. -\n\nEven so the Petitioners have still to make out that Section 4(2) implies that religious instruction - will be given.\n\nWe think that such a contention is too remote and divorced from the object of the provision.\n\nReligious instruction is that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular Sect or denomination.\n\nTo provide for academic study of life and teaching or the philosophy and culture of any great saint of India in relation to or the impact on the Indian and world civilizations cannot be considered as making provision for religious instructions.\n\nSub-Section (3) of Section 4 also does not in our view transgress the guarantee under Article 29(1).\n\nWhether one may like it or not, linguistic States in this country have come to stay. The purpose and object of these linguistic states is to provide with\n\n704 SUPREME COUllT REPORTS\n\n(1971] SUPP. S.C.R.\n\ngreater facility the development of the people of that area educationally, socially and culturally, in the language of that region but while the State or the University has every right to provide for the education of the majority in the regional medium, it is subject to the restrictions contained in Article 25 to 30. Neither the University nor the State can provide for imparting education in a medium of instruction in a language and script which stifles the language and script of any Section of the citizens.\n\nSuch a course will trespass on the rights of those Sections of the citizens whict have a distinct language or script and which they have a right to conserve through educational institutions of their own.\n\nIn our view Section 4(3) does not lend itself to the interpretation that the medium of instruction of all affiliated Colleges has to be Punjabi.\n\nThe provision, as we construe it, is for the promotion of Punjabi studies and research in and the development of the Punjabi language, literature and culture which is far from saying that the University can under that provision compel the affiliated Colleges particularly those of the minority to give instruction in the Punjabi language or in any way impede the right to conserve their language script and culture.\n\nIt is again contended that while provision is made in Sections 4(2) and 4(3! for the study and research of the life and teachings of Guru Nanak and for the study of Punjabi language, script and literature no similar provision is made for the study, of religious Heads of Hindus or for the study of Hindi and Devnagri script though Hindus form a substantial portion of the population of the State.\n\nThese provisions therefore are discriminatory and violative of Article 14 of the Constitution.\n\nThis argument in our view is devoid of merit. The State of Punjab is created as a unilingual\n\nState with Punjabi as its language and if provision is made for study of Punjabi language that does not furnish a ground for discrimination nor can the provision for study of the life and teachings of Guru Nanak afford any cause for complaint as in neither case as we have noticed, is there any compulsion on any person to undertake such studies nor is any of the communities prohibited from persuing studies in respect of either Hindi or of the life and teachings of any Hindu saint.\n\nThe facts of the case in our view do not attract Article 14.\n\nIt is contended tbat the compulsory affiliation of the Petitioners to the University affects their fundamental right of freedom of Association as guaranteed under Article 19(1) (e), therefore the notification under Section 5(3) affiliating them to the University is bad.\n\nIt is also urged that since the words \"associated with and admitted to any privileges\" or used in Section 5 of the Act, it would mean that Petitioners are compulsorily formed into an Association with the University.\n\nThis contention however is countered by the Respondents who point out that tbe freedom of Association under\n\nD. A. v. COLL~GE v. PUNIAB (Jog1111 mohan Reddy, J.)\n\nArticle 19(1) (c) implies Association between citizens while in the case of the Petitioners what is sought to be affected is an affiliation with the University which is a corporate body.\n\nThe right to form an association implies that several indivi duals get together and form voluntarily an association with a com mon aim legitimate purpose and having a community of interests.\n\nIt was sought to be suggested thaf the compulsory affiliation with the University affects the aims and objects of the Association, as such its freedom is infringed.\n\nThere is in our view a fallacy in this argument which on earlier occasions had also been repelled.\n\nIn the All India Bank Employees Association v. National Industrial Tribunal & Ors. ('), it was observed that the right guaranteed under Article 19(1) (c) does not carry with-it a concomitant right that the Associations shall achieve their object such that any interference in such achievement by any law would be unconstitutional unless it could be justified under Art. 19(4) as being in the interests of public order or morality.\n\nThe right under Article 19(1) (c) extends inter a/ia to the formation of an Association or Union.\n\nIn Raghubar Dayal Joi Prakash v. Union of India & Ors. (') it was held that if the statute imposes conditions subject to which alone recognition could be accorded or continued, '_'it, is a little difficult to sec how the freedom to form the Asso.ri is effected unless, of course, that freedom implies or involves a gmiranteed right to recognition also which it did not\".\n\nA reference has been made to a recent case of Smt. Damayanti Narang v. Union of India & Ors. ('), that a compulsory affiliation by statute would interfere with the right of Association.\n\nThis argument in our .view is untenable because in that case Parlia ment passed a law under entry 63 of List II of Schedule VII to the Constitution under which a Hindi Sammelan was to be constituted which was to consist of the first members of the Hindi Sammelan registered under the Societies Registration Act and all persons who become members thereof in accordance with the rules in that behalf.\n\nThis statutory Sammelan was constituted as a body corporate .the first members of Vl'.hich were to consist of persons who nn':'ed1ately before the appomted day were life members of the Society had been President's of the Society or were awarded the Manf-1.a Prasad aritoshik by the Society. There were also other provmons y which the Hindi Sammelan Society, its constitution as well as its propercy was affected.\n\nIn those circumstances it\n\n\n(2) [1963] 2 s.c.R.547.\n\n(3) Writ Petition No'. 91of1964, decided on 23·2·71. 45-1 S. C. Jndia/71\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nwas held that the Act in so far as it interferes with the composition of the Society in constituting the Sammelan violated the rights of the original members of the Society to form an Association guaranteed under Art. 19(1) (c).\n\nNo such thing was intended or effected by Section 5 of the Act.\n\nAt any rate the D. A. V. College Trust and Management Society is not being interfered with, .by any attempt to form an Association with the University. We can see no infringement of Article 19(1) (c).\n\nThe next ground of attack is in respect of the statutes made in exercise of the powers conferred under sub-section (!) of Section 19 of the University Act which according to the petitioners interferes with_ the management of their institutions as such violates Article 30(1) of the Constitution.\n\nThe relevant impugned statutes are contained in Chapter V relating to admission to Colleges.\n\nThese are 2(1) (a) 17, and 18 read with clause 1(2) and (3) whict are as f9llows : - 1(1)\n\nI (2) Colleges shall be of two types namely University Colleges and affiliated Colleges.\n\nI (3) The educational institutions and Colleges situated in the Districts of Amritsar, Jullundur, Gurdaspur and Kapurthalla are deemed to be associated with and admitted to the privileges of the Univerity with effect from 30th day of June 1970.\n\nThese institutions shall observe the conditions for admission to the privileges of the University failing which the rights conferred may be withdrawn.\n\n2(1)(a) A College applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate : -\n\n(a) that the College shall have a regularly constituted governing body consisting of not more than 20 persons approved by the Senate and including, among others, 2 representatives of the University and the Principal of the College Ex-officio.\n\nProvided that the said condition shall not apply in the case of Colleges maintained by Government which shall however have an advisory Committee consisting of among others the principal of the College (Ex-officio) and two representatives of the University.\n\n17. The staff initially appointed shall be approved by the Vice Chancellor.\n\nAll subsequent changes shall be reported to the University for Vice Chancellor's approval.\n\nD. A. v. COLLl!GB •• PUNIAll (Jagan mohaa Reddy, J.) 707\n\nIn the case of training institutions the teacher, pupil ratio .l shall not be less than I: 12.\n\nNon-Government Colleges shall comply with the requirements laid down in the ordinance governing service and conduct of teachers in non- Goverment Colleges as may be framed by the University.\n\n18. Non-Government Colleges shall comply with the requirements laid down in the ordinances governing service and conduct of teachers in non-Ooverment Colleges B as may be framed by the University.\n\nIt is contended that these provisions interfere with the Peti tioners in the management of their institutions, in that the Colleges are required to constitute a regular governing body for each of them, of not more than 20 persons to be approved by the University Senate.\n\nOf these, two representatives of the University and the Principal of the College are to be ex-officio members. Accord ing to the Petitioners the Managing Committee of their institution is composed of 24 members under the D. A. V. College Trust and Management Society registered under the Societies Registration Act (Act 21 of 1960).\n\nIt will be observed that under clause 1(3) if the petitioners do not comply with the requirements under 1 (a) their affiliation is liable to be withdrawn.\n\nSimilarly it is stated that clause 17 also interferes with the petitioners right to administer their College as the appointment of all the staff has to be approved by the Vice-Chancellor and that subsequent changes will also have to be reported to the University for Vice Chancellor's approval.\n\nWe have already held that the Petitioners institutions are established by a religious minority and therefore under Article\n\n30 this minority has the right to administer their educational institutions according to their choice.\n\nClauses 20) (a) and 17 of Chapter V in our view certainly interferes with that right.\n\nIn the case of Kera/a Education BIJI () dealing with Article 30(1) this Court observed at page 1053 :\n\n\"The key to the understanding of the true meaning and implication of the Article under consideration are the words \"of their own choice\".\n\nIt is said that the dominant word is \"choice\" and the content of that Article is as wide as the choice of the particular minority community may make it.\n\nThe ambit of the rights conferred by Article 30(1) has therefore to be determined on a consideration of the matter from the points of view of the educational institutions themselves\".\n\nWhile so stating it was nonetheless observed :\n\n\"that the constitutional right to administer an educa- H tional institution of their choice does not necessarily\n\n(I) [1959) S.C.R. 995.\n\n70~\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\n4 militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institution to be aided\".\n\nSimilarly in Rev. Sidhajbhai Sabhai & Ors. v.\n\nState of Bombay & Anr. (')it was held that :\n\n\"Unlike Article 19 the fundamental freedom under clause (!) of Article 30 is absolute in terms ; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to.\n\nAll minorities, linguistic or religious have by Article 30 (I) an absolute right to establish and administer educational institutions of their choice ; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void.\n\nThis, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right ......... Regulation made in the true interests of efficiency of instruction. discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed ; they secure the proper functioning of the institution, in matters educational\".\n\nWe. have already seen that in Rev. Father W. Proost & Ors.\n\nv. the State of Blhar & Ors. (~. the provisions of Section 48(A) which required to selection of the teachers of all affiliated Colleges including the Colleges established by the minorities, to be made by the University Service Commission, was held to interfere with the rights of the petitioners m that case.\n\nIn that case, while the petition was pending in the Court, Section 48(B) was added to the Bihar State University Act whereby notwithstanding the provisions of Section 48(AI exemption was given to the minority institutions to make appointments with the approval of the Commission and the Syndicate, the petitioners claimed exemption under Section 48(B) and submitted that as an affiliated College established by a minority based on religion or language they are exempted from Section 48(A) and that if this petition was accepted they will withdraw the petition which had become superfiuous. Even this prayer was not acceded to by the State and consequently it was held that they were entitled to the exemption claimed.\n\nThis decision is not therefore an authority for the proposition that even the requirement that the staff of a minority educational institution\n\n\nD. A. v. COLLEGE v. PUNJAB (Jagan mohan Reddy, J.) 709\n\nbe appointed, dismissed or removed only with the approval of the University or the State does not infringe the right to administer the institution guaranteed under Article 30(1).\n\nIn our view there is l)O possible justification for the provisions contained in clauses 2(1) (a) and 17 of Chapter V of the statutes which decidely interfere with the rights of management of the Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve dis-affiliation and consequently they will have to be struck down as offending' Article 30(1).\n\nClause 18 however in our view does not suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority institutions empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the larger interests of the Institutions to ensure their efficiency and excellence.\n\nIt may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such Institutions either genorally or in particular subjects.\n\nUniformity in the conditions of service and conduct of teachers in all non-Government Colleges would make for harmony and avoid frustration.\n\nOf course while the power to make ordinances in respect of the matters referred to is unexceptional the nature of the infringement of the right, if any, under Article 30(1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicate.\n\nThere is then the larger question which has been urged at some length namely that having regard to Section 72 of the Reorganisation Act the Sfate legislature is not competent to enact Section S of the Act which empowers th~ State Government by Notification to compulsorily disaffiliate from the Punjab University all Colleges including the Colleges of the minorities situated in the areas which are now in Punjab and affiliate them to the University.\n\nSection 72 of the Reorganisation Act and Section S of the Act are as foDows :\n\nSection 72(1).-Save as otherwise expressly provided by the foregoing provisions of this part, where any body corporate constituted under a Central Act, State Act or Provincial Act for the existing State of Punjab or any part thereof serves the needs of the successor States or has, by virtue of the provisions of Part II, become an inter-\n\nState body corporate, then the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning\n\n710 SUPREME COUltT ltEPOltTS [1971] SUPP. s.c.ll.\n\nand operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government until other provision is made by law in respect of the said body corporate.\n\n(2) Any direction issued by the Central Government under sub-section (!) in respect of any such body corporate may include a direction that any law by which the said body corporate is governed shall, in its application to that body corporate, have effect, subject to such exceptions and modifications as may be specified in the direction.\n\n(3) For the removal of doubt it is hereby declared that the provisions of this Section shall apply also to the Punjab University constituted under the Punjab University Act, 1947, the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961 and the lloard constituted under the provisions of Part Ill of the Sikh Gurdwaras Act, 1925.\n\n(4). For the purpose of giving effect to the provisions of this section in so far as it relates to the Punjab University and the Punjab Agricultural University referred to in sub-section (3) the successor State shall make such grants as the Central Government may, from time to time, by order, determine. ·\n\nSection 5(1).-The State Government may, by Notification q19eify the limits of the area in which the University shall exercise its powers and perform its duties.\n\n(2) Notwithstanding anything contained in any other law for the time being in force, no educational institution beyond the limits of the area specified under subsection (!) shall be associated with or admit!~ to any privileges of the University.\n\n(3) Notwithstanding anything contained in any other law for the time being in force, any educational institution situated within the limits of the area specified under suJ>.section (!) shall, with effect from such date as may be notified in this behalf by the State Government be deemed to be associated with and admitted to the privileges of the University and shall cease to be associated in any way with, or be admitted to any privileges of the Punjab University; and different dates may be appointed for different institutions.\n\nThe provisions of sub-sections (!) and (2) of Section 72 of the Reorganisation Act are similar to those contained in Section I 09\n\nD. A. v. COLLEGE v. PUNJAB (Jagan mohan Reddy, J.)\n\nof the States Reorganisation Act 1956 except that for removal of doubts sub-section (3) has specified the institutions named therein as being governed by sub-sections (1) and (2).\n\nSub-section (4) is consequential on the two Universities being made subject to the said provisions by requiring the successor State to make such grants to them as the Central Government may from time to time by order determine.\n\nThe State Government had by Notification of the 16th March under sub-section (I) of Section 5 Of the Act specified the districts as the areas in which the Universities shall exercise its powers and perform its duties and under sub-section (3) of the said Section, it further notified 30th June 1970 as the date from which the educational institutions situated within the limits of the areas so specified in the notification shall be deemed to be associated with and admitted to the privileges of the Universities.\n\nThe contention of the Petitioners is that since under Section 72 of the Reorganisation Act it is the Central Government which is vested with the power to issue directions in respect of the Punjab University or the Punjab Agricultural University and/ or to amend and alter the provisions of the Punjab University Act or the\n\nPunjab Agricultural University Act, the State Legislature is not competent to legislate in respect of the said University or Universities. without the necessary directions of the Central Government.\n\nThis is sought to be justified on the ground (a) that in respect of the Punjabi University the extension of jurisdiction of the University by a notification under the relevant provisions of the Punjabi University Act issued by the State Government, the Central Government had issued a direction disaffiliating the Colleges situated in those areas which were affiliated to the Punjab University, (b) that as the Reorganisation of the State of Punjab itself involved various matters upon which the successor States may not be agreed Parliament by law had in exercise of the power vested in it, enacted provisions empowering the Central Government to give directions in the interests of both the States, which directions had the affect of making a change in the then existing law governing the Corporate bodies till such time as both the States agreed. Though it is submitted that this power is transitory nonetheless it is -ffective\n\ntill such time as the Central Government in agreement with the States concerned permits them to legislate in respect of the body corporate by giving necessary directions in that behalf.\n\nOn the other hand it is contended by the Respondents interalia (!) that under item 11 of List II of the Seventh Schedule to the Constitution education being a State subject the State Legislature alone and not Parliament, is competent to legislate in respect of Universities, support being gathered for this submission from\n\n711 A\\\n\n712 SUPREME COUl\\T REPORTS\n\n(1971] SUPP. S.C.R.\n\nthe provisions of Sections 88 and 89 of the Reorganisation Act under which the law in force immediately before the appointed day could be otherwise provided for, or altered, repealed or amended only \"by a competent legislature\" which in the context is that legislature which is competent to legislate under any of the entries in List I, II or under the concurrent List III of the Seventh Schedule; (2) that the law referred to in sub-section (I) of Section 72 of the States Reorganisation Act which could take away the power of the Central Government to give directions from time to time as may be necessary in respect of the 'functioning and operating' of corporations including those in respect of the two Universities referred to in sub-section (3) is the State law, as it could not have been the intention of Parliament to deprive the States of their legislative powers by means of a Jaw made under Article 4 to give effect to the Reorganisation of the States by having recourse to the power to make supplemental, incidental and consequential provisions ; (3) that Parliament itself understood that it has no power to legislate in respect of one of the two Universities namely the Punjab Agricultural University when it enacted the Haryana and Punjab Agricultural University Act 16 of 1970, pursuant to the resolution of the legislature of the State of Punjab and Haryana under clause ()) of Article 252 of the Constitution in which it was categorically stated, as is apparent from the resolution of the legislature of Haryana produced before us, that as legislation had to be undertaken under entries I I and 32 of list II in the Seventh\n\nSchedule and as \"Parliament bas no power to make a law for the State except as provided under Article 249 and 250 thereof\" it\n\n\"shall by Jaw make provision for the dissolution of the aforesaid Punjab Agricultural University .... for setting up a separate Agricultural University............ for vesting the rights and liabilities of the University so dissolved in the University to be so set up and for all matters connected therewith or incidental thereto\", and\n\n(4) that in any case in a petition under Article 32 this Court cannot go into the question of legislative competence if the law that is impugned does not in any way affect the fundamental rights of the petitioners.\n\nWe have already found that none of the provisions of the Act offend any fundamental rights of the Petitioners. But it is contended on behalf of the Petitioners that in a petition under Article 32 once it ill alleged and a prima facie case is made out that the fundamental rights of a citizen are threatened or violated this Court is not only bound to entertain it for determining to what extent the allegation is valid but is also bound to go into the question, if raised, that the law under which it is alleged that his fundamental right is infringed is invalid on the ground of want of legislative competence. There are two facets to this submission.\n\nD. A. v. COLLl!GB v. PIJNJAB (Jagan mo/tan Reddy, J.)\n\nFirstly whether ultimately any fundamental right in fact is threatened or violated, so long as a prima facie case of such a threat or 'violation is made out a petition under Article 32 must be entertained.\n\nSecondly once it is entertained irrespective of whether it is found ultimately that in fact no fundamental rights of the petition\n\ners are invaded the vires of the legislation or the competence of the legislature to enact the impugned legislation must be gone into and determined.\n\nWhile the first proposition is valid, the second js not.\n\nShri Tarkunde the learned Advocate for the Respondents in Writ Petitions Nos. 353 and 354 of 1970 which were heard imme-\n\n.diately after these petitions has raised a contention similar to that raised in the second submission in support of which he referred to the case of Mohammad Yasin v. The Town Area Committee, Jalalabad & Anr .. ('). We do not think that this decision supports his contention because in that case it was held that in the absence of any valid law authorising the Town Committee to levy any fees otherwise than for the use of any immovable property vested in or entrusted to the Management of the Town Committee such illegal imposition must undoubtedly operate as an illegal restraint .and must infringe the unfettered right of the wholesale dealer to\n\ncarry on his occupation, trade or business which is guaranteed to him by Article 19(1) (g) of the Constitution.\n\nIn that case the levy on the petitioner as a wholesale dealer was held to be obviously ultra vires the powers of the Committee and therefore the bye-law under which such a fee was levied could not be said to constitute a valid law which alone may under Article 19(6) of the Constitution impose a restriction on the right conferred by Article 19(1) (g). It is, therefore, clear that as long as the petitioner makes out a prima jacie case that his fundamental rights are affected or threatened he cannot be prevented from challenging that the law complained of which affects or invades these rights is invalid because of want of legislative competence. In Chiranjilal Chowdhuri v. The Union of India & Ors. ('), Mukherjea, J., as he then was gave expression to a similar view as to the maintainability of a petition under Article 32. At page 899 he said :\n\n\"To make out a case under this Article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items :in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or orderfl.\n\n(I) l19S2] S.C.R. 572.\n\n(2) [19SO] S.C.R.,869.\n\nSUPREME COURT &BPORTI> [1971] SUPP.s.c.&.\n\nIt is apparent therefore that the validity or the invalidity of the impugned Jaw, on the ground of legislative competence should purport to infringe the fundamental rights of the petitioner as a necessary condition of its being adjudicated.\n\nBut if in fact the law does not, even on the assumption that it is valid, infringe any fundamental rights, this Court will not decide that question in a petition under Article 32.\n\nThe reason for it is obvious, namely that no petition under Article 32 will be entertained if fundamental rights are not affected and if the impugned Jaw does not affect the fundamental rights it would be contrary to this principle to determine whether that law in fact has legislative competence or not\n\nGajendragadkar J., as he then was in Khyarbari Tea Co. Ltd., & Anr. v. State of Assam ('), while dealing with a challenge to the validity of Section 24 of the Assam Taxation on Goods Act 1961 said at page 1009 :\n\n\"There may be some force in this contention, but we do not see how the petitioners can be permitted to challenge the validity of Section 24 when it is not alleged by them that any action is proposed to be taken against them under the said Section.\n\nIn dealing with the petition under Article 32 this Court would naturally confine the petitioners to the provisions of the impugned Act by which their fundamental rights are either affected or threatened.\n\nThat is why we are not satisfied that it is necessary to decide the question about the validity of Section 24 in the present proceedings\".\n\nIn Saghir Ahmad v. State of U. P. (~ it was held that when the enactment on the face of it is found to violate the fundamental rights guaranteed under Article 19(1) (g) of the Constitution it must be held to be invalid unless those who support the legislation ' can bring it within the purview of the exception laid down in clause 6 of the Article but if the Respondents did not place any materials before the Court to establish that the legislation comes within the permissible limits of clause 6, it is surely not for the Appellants to prove negatively that the legislation was not reasonable and was not conducive to tho welfare of the community.\n\nThere are other such instances where this Court has drawn an initial presumption of constitutionality when a statute was impugned as being unconstitutional.\n\nThis being the legal position in our view when once an impunged Jaw does not affect the fundamental rights of the petitioners\n\n(I} (1964] S S.C.R. 97S.\n\n(2) ll9SS] s.c.R. 707 & 726.\n\nD. A. v. COLLEGE v. PUNJAB (, lagan mohan Reddy, J.)\n\nas in this case we have founded it to be so, it is not necessary to go into the question of legislative competence or to decide on the validity of Section 5.\n\nWe have therefore no hesitation in holding that the notifica tion under which the Colleges have been affiliated to the Universi ties is legally valid and from the date specified therein Petitioners Colleges cease to be affiliated to the Punjab University. In the result these petitions are allowed to the extent that clause 2(1) (a) and Clause 17 of Chapter V of the statutes are struck down as affecting the fundamental rights of the petitioners, but in the cir cumstances without costs.\n\nK.B.N.\n\nPetitions partly allowed.", "total_entities": 190, "entities": [{"text": "D. A, V. COLLEGE ETC", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "D. A, V. 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"Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 51516, "end_char": 51525, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19(1)", "label": "PROVISION", "start_char": 51721, "end_char": 51734, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 19", "label": "PROVISION", "start_char": 51863, "end_char": 51873, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 52002, "end_char": 52015, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "clause 1(2)", "label": "PROVISION", "start_char": 52172, "end_char": 52183, "source": "regex", "metadata": {"statute": null}}, {"text": "College Trust and Management Society registered under the Societies Registration Act", "label": "STATUTE", "start_char": 54591, "end_char": 54675, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "clause 1(3)", "label": "PROVISION", "start_char": 54726, "end_char": 54737, "source": "regex", "metadata": {"linked_statute_text": "College Trust and Management Society registered under the Societies Registration Act", "statute": "College Trust and Management Society registered under the Societies Registration Act"}}, {"text": "clause 17", "label": "PROVISION", "start_char": 54879, "end_char": 54888, "source": "regex", "metadata": {"linked_statute_text": "College Trust and Management Society registered under the Societies Registration Act", "statute": "College Trust and Management Society registered under the Societies Registration Act"}}, {"text": "Article\n\n30", "label": "PROVISION", "start_char": 55262, "end_char": 55273, "source": "regex", "metadata": {"linked_statute_text": "College Trust and Management Society registered under the Societies Registration Act", "statute": "College Trust and Management Society registered under the Societies Registration Act"}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 55515, "end_char": 55528, "source": "regex", "metadata": {"linked_statute_text": "College Trust and Management Society registered under the Societies Registration Act", "statute": "College Trust and Management Society registered under the Societies Registration Act"}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 55895, "end_char": 55908, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 56563, "end_char": 56573, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 30", "label": "PROVISION", "start_char": 56618, "end_char": 56628, "source": "regex", "metadata": {"linked_statute_text": "Constitution of 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58388, "end_char": 58401, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 58997, "end_char": 59010, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 59424, "end_char": 59437, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Clause 18", "label": "PROVISION", "start_char": 59440, "end_char": 59449, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 17", "label": "PROVISION", "start_char": 59508, "end_char": 59517, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 60309, "end_char": 60322, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 72", "label": "PROVISION", "start_char": 60642, "end_char": 60652, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 72", "label": "PROVISION", "start_char": 60995, "end_char": 61005, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 72(1)", "label": "PROVISION", "start_char": 61074, "end_char": 61087, "source": "regex", "metadata": {"statute": null}}, {"text": "State Act or Provincial Act", "label": "STATUTE", "start_char": 61226, "end_char": 61253, "source": "regex", "metadata": {}}, {"text": "Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961", "label": "STATUTE", "start_char": 62369, "end_char": 62462, "source": "regex", "metadata": {}}, {"text": "Part Ill of the Sikh Gurdwaras Act, 1925", "label": "STATUTE", "start_char": 62514, "end_char": 62554, "source": "regex", "metadata": {}}, {"text": "Section 5(1)", "label": "PROVISION", "start_char": 62865, "end_char": 62877, "source": "regex", "metadata": {"linked_statute_text": "Part Ill of the Sikh Gurdwaras Act, 1925", "statute": "Part Ill of the Sikh Gurdwaras Act, 1925"}}, {"text": "Section 72", "label": "PROVISION", "start_char": 63853, "end_char": 63863, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act 1956", "label": "STATUTE", "start_char": 63997, "end_char": 64027, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 5", "label": "PROVISION", "start_char": 64484, "end_char": 64493, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act 1956", "statute": "the States Reorganisation Act 1956"}}, {"text": "Section 72", "label": "PROVISION", "start_char": 64969, "end_char": 64979, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act 1956", "statute": "the States Reorganisation Act 1956"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 66662, "end_char": 66678, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 88 and 89", "label": "PROVISION", "start_char": 66957, "end_char": 66975, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 67319, "end_char": 67335, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 72", "label": "PROVISION", "start_char": 67388, "end_char": 67398, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 67406, "end_char": 67431, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 4", "label": "PROVISION", "start_char": 67842, "end_char": 67851, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 252", "label": "PROVISION", "start_char": 68335, "end_char": 68346, "source": "regex", "metadata": {"linked_statute_text": "Constitution 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"Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 73241, "end_char": 73251, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 24", "label": "PROVISION", "start_char": 73627, "end_char": 73637, "source": "regex", "metadata": {"statute": null}}, {"text": "Assam Taxation on Goods Act 1961", "label": "STATUTE", "start_char": 73645, "end_char": 73677, "source": "regex", "metadata": {}}, {"text": "Section 24", "label": "PROVISION", "start_char": 73828, "end_char": 73838, "source": "regex", "metadata": {"linked_statute_text": "the Assam Taxation on Goods Act 1961", "statute": "the Assam Taxation on Goods Act 1961"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 73983, "end_char": 73993, "source": "regex", "metadata": {"linked_statute_text": "the Assam Taxation on Goods Act 1961", "statute": "the Assam Taxation on Goods Act 1961"}}, {"text": "Section 24", "label": "PROVISION", "start_char": 74252, "end_char": 74262, "source": "regex", "metadata": {"linked_statute_text": "the Assam Taxation on Goods Act 1961", "statute": "the Assam Taxation on Goods Act 1961"}}, {"text": "Article 19(1)", "label": "PROVISION", "start_char": 74444, "end_char": 74457, "source": "regex", "metadata": {"linked_statute_text": "the Assam Taxation on Goods Act 1961", "statute": "the Assam Taxation on Goods Act 1961"}}, {"text": "clause 6", "label": "PROVISION", "start_char": 74617, "end_char": 74625, "source": "regex", "metadata": {"linked_statute_text": "the Assam Taxation on Goods Act 1961", "statute": "the Assam Taxation on Goods Act 1961"}}, {"text": "clause 6", "label": "PROVISION", "start_char": 74782, "end_char": 74790, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 75486, "end_char": 75495, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 2(1)", "label": "PROVISION", "start_char": 75815, "end_char": 75826, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 17", "label": "PROVISION", "start_char": 75835, "end_char": 75844, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_6_19_EN", "year": 1971, "text": "REGINA\n\nST. ALOYSWS WGHER ELEMENTARY SCHOOL & ANR.\n\nMarch 16, 1971.\n\n(J. M. SHELAT AND C. A. V AIDIALINGAM, JJ.)\n\nMadras Elementary EducaJjon Act (8 of 1920), s. S6(2) (h) and Part U Rules-If statutory Rules or administrative instructions-Purpose of Rules -Right oJ. teacher against management oJ Elementary School-If governed by contract or Rules.\n\nThe appellant, who was working as the Headmistress in the respondent school was reduced to the position of an Assistant Teacher. Her appeal to the District Educational Officer under r. 13(2)(vi) of Part II of tho rules published by tho State Government in the Gazette on August 29, 1939, was rejected, but on a further appeal by her to the Divisional Inspector of Schools, the management of the school was directed to restore her to the position of Headmistress.\n\nAs the management did not do so, sho filed • suit for the issue of a mandatory injunction to tho respondent and for damages.\n\nOn the question whether the rules under which the appeal was filed and the order was made wore only administrative instructions by the Gov eroment to its educational officers and not statutory rules which would give rise to a remedy enforceable at law at the instance of an employee of a school aggrieved aaalnst tho management,\n\nHELD: (I) Section S6 of the Madras Elementary Education Act, 1920, authorised tho Government to make rules to 'carry out all or any of tho purposos of this Act', and under sub ... 2(h) for declaring the conditions subject to whicb schools may be admitted to recognition or aid, and rules were framed in 1922. The Act was amended by Amendment Act of 1939, by which Chs. II, N, VI and s. SS wore deleted. Tho existing rules therefore could not be continued as they could not be regarded as rules for 'car rying out the purposes of the Act.' Hence they were reframod 'llld published in the Gazette in 1939 in two parts. [13F, H; 14D].\n\n(a) The lint part contained rules dealing with matters provided for in the various sections. The rules in Part II could not refer to any section because, they related to matters such as recognition and aid dealt with in sections and Chapters which were repealed by the 1939-amelldrnent, and\n\nhoacc, Part II rules did not set out or refer to any section of the Act. [l 4B].\n\n(b) The rules in Part I were headed 'Rules framed Uildcr the Madras\n\nElementary Education Act, 1920', but the Rules in Part II were not given any such hcadjna or title. [14F).\n\n(c) There was no previous publication of the rules in Part II as required by s. S6(1). [14F-G].\n\n(d) The rules in Part II could not be claimed to have been made under s. S6(2) {b) dealing with the conditions subject to which schools may be admitted to rocognition. or aid, because they did not satisfy tho condition proccdcnt for auch rulemal declaring the conditions subject to which schools may be admitted to recognition or aid.\"\n\nRules were framed under the Act for the first time by the Govt. of Madras in 1922. These rules provided for the grant of recognition and aid to elementary schools, and for prescribing conditions of service and qualifications of teachers and the authority of the District Educational Inspector and higher authorities.\n\nThe provisions relating to the recognition of the elementary schools and admission of primary elementary schools to gra.ntsin-aid were, as stated earlier, repealed by Act 2 of 1939, but the power to frame rules, especially for the purpose of declaring the conditions subject to which schools may be admitted to recognition or aid; wa.s retained.\n\nIt alsc appears that even after Act 2 of 1939 which repealed Ch. IV was enacted, rules relating to the power of the Educational authorities were re-published on August 29, 1949, and Part II of the Rules dea.lt with matters realating to recognition of schools and grant-in-aid. In the view of the High Court, after repeal of ss. 41 & 42 of the Act, those rules could only have effect as execu tive instructions. On this question it appears that tliere has been some difference of opinion in the High Courts. A Full Bench of the Kerala High Court in Chandrasekharan Nair and others v.\n\nSecretary to Govt. of Kera/a and others,(') apjlroving their earlier\n\njudgment in Joseph Valamangalam v. State of Kera/a(') held that the rules contained in Part II headed \"Rules for grant of recognition and aid to Elementary Schools\" framed under the Madra.s Elementary Education Act, 1920, were mere e'l:ecutive directions having no statutory authority.\n\nThe High Court of Andhra Pradesh in Jalli Venkatswarrry v.\n\nThe Correspondent, Kasturiba Gandhi Basic Senior School, Kenetipuram(') was apparently of the view that these rules had statutory operation.\n\nThe High Court of Madras in A. Ramaswami Ayyangar v.\n\nState of Madras (Education Department)(') held that the rules were administrative and not sta.tutory in tlieir effect, and the management could dispense with the services of its employee (a teacher) after giving three months' notiee in the usual course, without assigning any special reason, and the employee could not invoke the aid of the Court for oo order to quash the proceedings of the management dispensing with his services on the ground of non-compliance with those rules.\n\n(1) A.!. R. 1961 Kerala 303.\n\n(3) A.(. R. 1961 A. P. !78.\n\n(2) A. I. R. 1958 Kerala 290.\n\n(4) A. I. R. 1962 Mad. 387.\n\nK:UMARI REGINA •• ST. A.H. E. SCHOOL (She/at, J.)\n\nIn this case, the question whether an order made by the Educational authorities in exercise of the powers conferred upon them by rules is liable to be enforced by action in a civil court at the instance of a. person affected by the action of the school authorities falls to be determined. It is unfortunate that counsel have not been able to place before us the Act, and the rules in force at th~ material time. Counsel appearing at the Bar a.re also unable to inform us about the authority in the exercise of which the rules were originally framed and were re-issued after the repeal of Ch. IV of the Act.\n\nBefore we can decide this appeal, we must have before us a. copy of the relevant rules in force at the material time, and evidence about the authority under which the rules were framed and continued, the sanction behind the enforcement of the rules, if any, and the man::ier in which the rules were being administered by the Madras Government and thereafter by the State of Mysore when the District of South Kanara merged with that Sta.le under the States Reorganization Act, 1956.\n\nWe direct that the papers be sent down to the Trial Court and that the Trial Court do report to us after taking evidence on the questions set out earlier. The Tria.! Court may, if so advised, issue a summons to the Educational a.uthorities of the State of Madras or take other steps to ensure production of the documents bearing on the questions on which report is directed to be made.\n\nEnquiry may especially directed to the question whether the State of Madras, or the state of Mysore, have on any earlier occasion enforced the orders passed by the Educational authorities in appeals and the power in exercise of which they have been enforced. The Trial Court to submit the report within six months from the date on which the papers reach that Court.\n\nThe judgment of the Court after receipt of the report was delivered by\n\nShelat, 1.- Prior to June I, 1955, the appellant was working as the Head Mistress in the respondent school.\n\nOn April 22, 1955, the management of the School served certain charges on her and called upon her to reply to the same. Her reply was found to be unsatisfactory, and thereupon, by an order passed by the m01nagement on June 1, 1955 she was reduced to the position of an Assistant Teacher. She thereafter filed an appeal against the management before the District Educational Officer, South Kanara.. Her appeal was rejected. A further appeal by her before the Divisional Inspector of Schools, Coimbatore, succeeded and the Divisional Inspector directed the mana!!JCment to restore her to her original position as the Head Mistress. The management declined to do so and she filed the suit from which this appea.l arises.\n\nThe suit was on the basis that since the school had obtained recognition and grant-in-aid under the Madras Elementary Education Act, VIII of 1920, and the rules made therefore by the Government, it was under the supervision, first of the Education Department of the Madras Government, and after reorganisation. of States, that of the Mysore Government.\n\nAccording to her, the Act and the said rules were binding on the school and ga.ve her a right to enforce against the management the said order of the Divisional Inspector. The order reducing her to the position of an assistant teacher stood vacaited by the order of the Divisio nal Inspector and the respondent school, therefore, was bound to comply with that order and restore her to the position of the Head Mistress.\n\nThe management contested the suit, maintaining tha.t the order of reduction passed by it was within its power, that there was nothing in the Act or the rules which warranteil any\n\ninterferece with its right of internal management of the school and g'we no right to the appellant to enforce in a court of law the order passed by the Divisional Inspector, that order being only a matter between the Education Department and the management\n\nThe Trial Court accepted the school's contention and dismis sed the suit. In an appeal against that dismissal, the District Judge took a different view and held that the order of the Department was legally enforceable by the appellant since it was passed in Hn appeal provided by the s~.id rules. He set aside the dismissal uf the suit and passed a decree in favour of the appellant. On a second appeal by the school, the High Court went into tjie legisla\n\ntiv~ history of the Act and on an examination of the rules accep ted the contention of the management that the relationship bet ween the parties was that of master and servant and no manda tory injunction could be issued directing restora, tion of the appellant as the Head Mistress as that would be tantamount to specific performance of a contract of personal service not pennis sible under s. 21(b) of Specific Relief Act, 1877. The High Court .ilso held that the rules, under which the appellant had filed the said appeal and the said order was made, were only administrative instructions by the Government to its educational officers and not statutory rules which would give rise to a, remedy enforceable at law at the instance of an employee of a school agrieved against its management.\n\nAgainst this judgment, the appellant obtained speciaI leave from this Court and filed this appeal.\n\nThe appeal first came up for hearing in March 1970 before Shah, J. (as he then was) and Grover, J. Not satisfied with the' record before them, the learned Judges postponed the hearing of the appeal and ca.Jled for a report from the Trial Court on certain matters found wanting in the record. In accordance with that urder, the Trial Court took additional evidence, both oral and\n\nKUMAR! REGINA v. ST. A.H. t. SCHOOL (She/at, J.)\n\ndocUillentary, and despatched its. report along with a copy of the rules, the Madras Gazette in which they were published and 'ertain other materials. From those materials. as also from the judgment of the Kerala High Court reported in Rev. Fr. Joseph\n\nv. Kera/a(') it is possible to trace the charges which the Act and the rules have undergone from time to time. Such a legislative history of the Act is important to a certain extent as it throws light on me character of the rules and the power under which they were framed from time to time.\n\nCounsel for the appellant urged that in spite of the changes made from time to time in the Act, the rules with which we are concerned in this appeal have retained their original character of being statutory rules. They must, therefore, be held to have been made under s. 56 and particularly under cl. (h) of its sub-s. (2), which empowers the Government to make rules in respect of recognition as a, n elementary school and the aid which the Government gives to it from public funds. The argument was that despite the changes in the Act, particularly the deletion of certain provsions of the Act, to which we shall presently come, the definition ot an 'elementary school' in the Act takes in schools recognised by the Director of Public Instruction of the State Government, and since such a recognised school is the essence of the scheme of elementa.ry education provided by the Act, the rules have to be \\Teated as statutory rules made under cl. (h) of s. 56(2) which is still retained in the Act.\n\nBefore we proceed to consider these contentions, it is necessary to examine briefly the Act and its legislative history.\n\nThe Act was first passed as Madra~ Act, VIII of 1920, and then contained seven chapters with 56 sections. It underwent several changes from time to time and particularly when the Madias Elementary Education (Amendment) Act, II of 1939 was passed by which Chapter II, IV, VI and s. 55 in Ch. VII were deleted.\n\nThe Act was passed with the ob1ect ot making better provisions for elementary education and envisaged imparting of such education through elementary schools, including those run by private ma.nagements, but recognised by Government through its Education Department. Sec. 3(vi) of the Act defines such an elementary school one recognised by the Director of Public Instruction or by such authority as may be empowered by him in that behalf. Sec. 56 \"uthorised the Government to make rules not inconsistent with the provisions of the Act \"to carry out a.II or any of the purposes\n\n(I) A. I. R. 1958 Kerala 290.\n\nSUPlll!JIE COURT .REPORTS [1971] SUPP. s.c.R.\n\nof this Act\", and in particular cl. (h) of sub-s. (2) for \"declaring the conditions subject to which schools may be admitted to recognition or aid.\" Ch. II, before its deletion in 1939, provided for the constitution of District Educational Councils, their duties, their funds, budget and audit Ch. VI, by ss. 41 to 43 in it, dealt with recognition of schools a.nd admission of private managed schools to grant-in-aid. These chapters, as stated earlier, were repealed in\n\n1939.\n\nThe Rules were first framed in 1922 under s. 56 and contained provisions regarding recognition and aid. These Rules were clearly statutory rules. Curiously, although Chs. II and IV were deleted in 1939, cl. (h) of s. 56(2) was allowed to remain in the Act. It appears that the rules regulating recognition and aid were framed in 1922 because so long as Chs. II and IV were in the Sta-tute, they had to be made to implement the purposes set out in those chapters.\n\nBut with the repeal of those chapters, those Rules could not be continued as they could no longer be regarded as rules for carrying out the purposes of the Act as s. 56(1) enjoins The Madras Government appears to have appreciated such a result arising from the repeal of those chapters and therefore, reframed the rules and published them in the Gazette of August 29,\n\n1939. The new Rules were divided into two parts. The first part contained rules dealing with matters provided for in ss. 3(i)(v) and (viii), s. 36(1) and (2), s. 44, s. 48, s. 50(iii) and (v) ands. 51.\n\nPart II Rules did not set out or refer to any of the sections in the Act as Part I Rules did. The reason was that rules in Part JI dealt with recognition and aid in respect of which there were, after the 1939 amendment, no corresponding provisions in the Act. It is also of some significance that when published in 1939 the rules in Part I were headed \"Rules frame:! under the Madras Elementary Eduction Act, 1920\", while the rules contained separately in Part II were not given any such heading or title.\n\nFurther, it appears that when these Part II Rules were published in August 1939 there was no previous publication of them as required by s. 56(1) of the Act.\n\nCh. I in Part II Rules deals with recognition. The power to grant or withdraw such a recognition is conferred on the officers of the Education Department. Under r. 5, applications for recognition of schools or additional standards in such schools are to be made to the District Educational Officer.\n\nAn appeal is provided against his decision before the Divisiona~ Officer. The rules then Jay down certain requirements on the basis 0f which recognition would be given or withheld.\n\nRule 13(1) r, irovides, inter a/ia, for the maintenance of a teacher's service register by the manager of the school specifying therein the terms of service under which a teacher is recruited. The register would include\n\n' \"\n\nKUMAlll llEGINA v. ST. A. H. E. SCHOOL (Sh~/at, J.) 15\n\nparticulars showing whether a teacher is appointed temporarily or on probation or on a permanent basis, his salary, the scale of pay, if any, etc. Under the rule, the manager has to get the register countersigned by the Deputy Inspector of Schools.\n\nThe rule further provides that no qualified teacher ca.n be appointed on :a temporary basis or for a stipulated period. All appointments to permanent posts have initially to be made on probation and on expiry of the probation period the teacher would be deemed to be permanent. Cl. (2) of r. 13 provides that no teacher ca11 leave the service of a school without giving three months' notice, or three months' salary in lieu thereof. Under sub-cl. (ii) of cl. (2) of that rule, the management has the power to terminate the service of any member of the staff. whether permanent, temporary or probationary, without any notice on the grounds set out therein.\n\nBut, three months' notice would be required if the termination of service is for reasons other than those set out in sub-cl. (ii), e.g., for wilful neglect of duty, serious misconduct, gross insubordination, incompetence etc.\n\nThe first provision to sub-cl. (ii) requires, however, that before such notice of termination is given the teacher has to be informed in writing of the charges against him and a reasonable opportunity to be heard has to be given to him. The second proviso to that subclause requires the management to consult the Deputy Inspector and obtain his approval about the propriety of the actioo proposed against a teacher. The rule then provides :\n\n\"When, on a teacher's appeal, the District Educational Officer orders reinstatement, the management shall forthwith reinstate him within 10 days of the receipt of the orders, notwithstanding a further appeal submitted or proposed to be submitted by the management to the Divisional Inspector and shall inform in writing the Deputy Inspector of Schools and the District Educational Officer of the fact of having done so. Failure to comply with such orders of the District Educational Officer may entail action against the management under rule 14 below.\"\n\nSub-cl. (vi) of r. 13(2) provides for appeals, first, before the District Educational Officer, and then, before the Divisional Inspector of Schools.\n\nUnder r. 14, the Director of Public Instructions has the power to declare, after enquiry, a teacher to be unfit for employment in a recognised school. Under r. 14-A, he ca, n refuse or withdraw recognition from a school in which is employed a teacher whom he has declared to be unfit, or when the school is under the management of a person declared unfit by him. Recognition can also be withdrawn under rr. 26 to 28. 28-A and 28-B on the grounds set out therein. Ch. II of Part II Rules contain rules in regard to aid, such as teaching grants, maintenance grant etc.,\n\nand Ch. III contains rules with regard to grants for school buildings, building sites and play-grounds.\n\nChs. II and IV of the Act, which contained provisions for recognition and aid, having been repealed, these rules, reissued and published afresh in August 1939, cannot be said to be rules \"to carry out all or any of the purposes of this Act\", as provided by s. 56(1). No doubt, cl. (h) of sub-s. (:2) of s. 56 was still retained even after Chs. II and IV were deleted, and therefore, the Government could perhaps claim to ha.ve the power to frame statutory rules \"declaring the condihOns subject to which schools may be admitted to recognition or aid\".\n\nBut even if the Government were to claim to have framed rules under the sanction contained in cl. (h) of s. 56(2), such rules would not satisfy the condition precedent for such rule-making, namely, that they ca.n be made only \"to carry out all or any of the purposes of this Act\". Such rules, therefore, even if made, would not be rules made under s.\n\n56. Besides, the fact is that when Part II Rules were published in the gazette of August 28, 1939, they were not claimed to have been made under the power reserved to the Government under s.\n\n56. If they were claimed to have been so made, they would, firstly, have been pre-published as required by s. 56(1), and secondly, the Government wouM not have made the distinction oetween Part I and Part II Rules, which it did, by giving a title to the former, namely, that they were made under the Act, and omitting to give such a title to the latter. These fa.els support the contenion of the respondent-school that Part II Rules cannot be said to be statutory rules framed under s. 56, although the power to make such rules is still retained with the Government by reason of cl. (h) being still there in s. 56(2).\n\nOrdinarily, the relations between the management of an elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the Jaw of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary. The mere fact that such a school has obtained recognition and aid from the educa.tion department would not mean that the relationship between its management and its employees has ceased to be governed by the contra.els of employment under which the employees are recruited and by the law of master and servant unless there is some provision in the Act overriding that law as one finds in statutes dealing with industrial disputes a.nd similar other matters. There is in fact no such provision in the Act and none was pointed out to us. The result is that the relations between the management and the teachers even in a recognised elementary school have to be regarded as being governed by the contracts of employment\n\nKUMAR! REGINA' ST. A. ff, E. SCllOOL (She/at, J.)\n\nand the terms and conditions contained therein. Part II Rules,\n\n'Yhich cannot be regarded as having the slatus of statutory rules made under s. 56, cannot be said to have the effect of controlling the relations between the management of a school and its teachers or the terms and conditions of employment of such teachers or abrogating the law of master and servant which ordinarily would govern those relations.\n\nBut it cannot also be ga.insaid that as the Government has the power, to admit schools to recognition and grants-in-aid, it can, de hors the Act, lay down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power a.nd to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition ood aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of school, therefore, would commit a breach or non-compliance of the conditions laid down m the rules on pain of dcpriv&tion of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce those rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as a. teacher aggrieved by some order of the management, cannot derive from the rules any enforceable right against the management on the ground of a. breach or noncompliance of any of the rules. To illustrate the point, suppose the management of a school were to terminate the service of a teacher after giving one month's notice, or one month's salary in lie•1 thereof in accordance with the contract of employment between the teacher and the management, such a termination would be valid. But the Government can insist that since its rules provide for three months' notice, the management cannot terminate the service of a teacher by giving only one month's notice. Though, in the absence of statutory provision having the effect of controlling or superseding the contract of employment agreed to between the parties, the termination would in law be valid, nevertheless, the Government can withdraw, under Part II Rules, the recognition and aid it has given to the school since its rules governing recognition and aid were not complied with. But that does not mean that Part II Rules confer upon a third party, viz .• an aggrieved employee of a school, a.ny remedy enforceable at law in the event of the management of an elementary school refusing to comply with these.\n\n2-1 S, C. lndia/71\n\nrules which, inter alia, enjoin upon a school to abide by the directions given thereunder by the education officers of the Government named therein.\n\nIn the absence of any prov1s1on in the Act governing the relations between the ma.nagement and a teacher employed by it or controlling the terms of employment of such a teacher and Part II Rules not being statutory rules, the appellant coufd not be said to have had a cause of action for enforcing the directions given by the Divisional Inspector to restore her as the Head Mistress in the appeal filed by her. Appeals against orders pa.ssed by the management against a teacher ace provided for under r. 13 so as to enforce the satisfaction of conditions under which recognition and aid would be granted or withdra.wn, and not for regulating, as between the teacher and the management, the relations of master and serva.nt arising under the contract of employment.\n\nIn Rev. Fr. Joseph v. Kera/a,(') the Kerala High Court had to consider the question of these rules being statutory or not as one of the schools, whose writ petition among others it was trying, was governed by the Madra.s Elementary Education Act, 1920 and the rules made by the Madras Government.\n\nAfter tracing the legislative history of the Act, as also of the rules, the High Court held that Pact II Rules did not have any statutory origin and were, therefore, only administrative instructions by the Government to its educational officers, and therefore, did nof vest in the school any statutory right for grant-in-a.id. This decision was later approved by a full bench of that High Court in Chandrasekharan Nair v. Secretary to Government of Kerala(') where that Court once again held fhat Part II Rules were administrative rules.\n\nSimilarly, in A. Ramaswami Ayyangar v. Madras,(') the High Court of Madras negatived the contention fhat these rules, dealmg with recognition aind aid, could be invoked by an employee against the management of a private elementary school to enforce a right allegedly arising under the rules. The High Court held that the rules were not staitutory rules, and that therefore, they could not enlarge the scope of fhe contract of employment between such an employee of the school and the management embodied in the school register, and that the rules affected the relations between the school and fhe Government, and not a fhird party. In Govindaswami v. Andhra,(') a learned Single Judge of the Andhra High\n\nCourt. took the view fhat fhe powers and functions of the State's educational officers under these rules in relaition to recognition a ad aid were quasi judicial and held that fhese rules were statutory\n\n(!) A. I. R. 19S8 Kerala 290.\n\n(3) 1962(1) M. L. 1. 269.\n\n(2) A. J. R. 1961 Kerala 303.\n\n(4) 1962(1) An. W.R. 263.\n\nKU.MARI R~O!NA v. sr. A.H. B. SCHOOL (She/at, J.) 19\n\nA rules.\n\nBut this view was on an assumption that even Part II Rules were made under s. 56(2)(h) of the Act. Such an assumption , \" was made without any enquiry whether they were so made and without taldng into account the fact of the deletion of Chs. 11 and IV from the Act in 1939, and its impact on the rule-making power of the Government, the re-issuance of the rules thereafter and the distinction made by the Madras Government itself between Part I and Part II Rules in the headings which it gave to those two parts. The more recent view of the Andhra. High Court, however, is reflected in Moss v. The Management(') where a Division Bench of that High Court has held that Part II Rules relating to recog nition and aid are not statutory rules but are only executive instructions, a.nd therefore, are not legally enforceable in a court of law.\n\nOn the reasons aforesaid. the suit filed by the appellant must be held to be misconceived, and consequently, the High Court righty dismissed her suit. The appeal fails and is dismissed. But in the circumstances of the case, we decline to make any order\n\nas to costs.\n\nV. P. S.\n\nAppeal dismissed.\n\n(I) !970(II) An. W. R. 157.", "total_entities": 67, "entities": [{"text": "REGINA\n\nST. ALOYSWS WGHER ELEMENTARY SCHOOL & ANR", "label": "RESPONDENT", "start_char": 0, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "ST. ALOYSIUS HIGHER ELEMENTARY SCHOOL & ANR", "offset_not_found": false}}, {"text": "M. 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"source": "regex", "metadata": {"linked_statute_text": "The principal question which fell to be determiQed before the High Court was whether the rules framed under the Madras Elementary Education Act, 1920", "statute": "The principal question which fell to be determiQed before the High Court was whether the rules framed under the Madras Elementary Education Act, 1920"}}, {"text": "s. 42", "label": "PROVISION", "start_char": 10055, "end_char": 10060, "source": "regex", "metadata": {"linked_statute_text": "The principal question which fell to be determiQed before the High Court was whether the rules framed under the Madras Elementary Education Act, 1920", "statute": "The principal question which fell to be determiQed before the High Court was whether the rules framed under the Madras Elementary Education Act, 1920"}}, {"text": "s. 56", "label": "PROVISION", "start_char": 10325, "end_char": 10330, "source": "regex", "metadata": {"linked_statute_text": "The principal question which fell to 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"metadata": {"statute": null}}, {"text": "Specific Relief Act, 1877", "label": "STATUTE", "start_char": 18211, "end_char": 18236, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 56", "label": "PROVISION", "start_char": 19944, "end_char": 19949, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 20630, "end_char": 20638, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55", "label": "PROVISION", "start_char": 21076, "end_char": 21081, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 3(vi)", "label": "PROVISION", "start_char": 21374, "end_char": 21384, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 56", "label": "PROVISION", "start_char": 21547, "end_char": 21554, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 41 to 43", "label": "PROVISION", "start_char": 22069, "end_char": 22081, "source": "regex", "metadata": {"statute": null}}, 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"end_char": 23258, "source": "regex", "metadata": {"statute": null}}, {"text": "Part II Rules did not set out or refer to any of the sections in the Act as Part I Rules", "label": "STATUTE", "start_char": 23278, "end_char": 23366, "source": "regex", "metadata": {}}, {"text": "Madras Elementary Eduction Act, 1920", "label": "STATUTE", "start_char": 23655, "end_char": 23691, "source": "regex", "metadata": {}}, {"text": "Part II Rules", "label": "STATUTE", "start_char": 23821, "end_char": 23834, "source": "regex", "metadata": {}}, {"text": "s. 56(1)", "label": "PROVISION", "start_char": 23922, "end_char": 23930, "source": "regex", "metadata": {"linked_statute_text": "Part II Rules", "statute": "Part II Rules"}}, {"text": "Part II Rules", "label": "STATUTE", "start_char": 23953, "end_char": 23966, "source": "regex", "metadata": {}}, {"text": "II of Part II Rules", "label": "STATUTE", "start_char": 27456, "end_char": 27475, "source": "regex", "metadata": {}}, {"text": "II and IV of the Act", "label": "STATUTE", "start_char": 27668, "end_char": 27688, "source": "regex", "metadata": {}}, {"text": "s. 56(1)", "label": "PROVISION", "start_char": 27920, "end_char": 27928, "source": "regex", "metadata": {"linked_statute_text": "II and IV of the Act", "statute": "II and IV of the Act"}}, {"text": "s. 56", "label": "PROVISION", "start_char": 27966, "end_char": 27971, "source": "regex", "metadata": {"linked_statute_text": "II and IV of the Act", "statute": "II and IV of the Act"}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 28321, "end_char": 28329, "source": "regex", "metadata": {"linked_statute_text": "II and IV of the Act", "statute": "II and IV of the Act"}}, {"text": "s.\n\n56", "label": "PROVISION", "start_char": 28564, "end_char": 28570, "source": "regex", "metadata": {"linked_statute_text": "II and IV of the Act", "statute": "II and IV of the Act"}}, {"text": "Part II Rules", "label": "STATUTE", "start_char": 28603, "end_char": 28616, "source": "regex", "metadata": {}}, {"text": "s.\n\n56", "label": "PROVISION", "start_char": 28756, "end_char": 28762, "source": "regex", "metadata": {"linked_statute_text": "Part II Rules", "statute": "Part II Rules"}}, {"text": "s. 56(1)", "label": "PROVISION", "start_char": 28867, "end_char": 28875, "source": "regex", "metadata": {"linked_statute_text": "Part II Rules", "statute": "Part II Rules"}}, {"text": "Part II Rules", "label": "STATUTE", "start_char": 29179, "end_char": 29192, "source": "regex", "metadata": {}}, {"text": "s. 56", "label": "PROVISION", "start_char": 29243, "end_char": 29248, "source": "regex", "metadata": {"linked_statute_text": "Part II Rules", "statute": "Part II Rules"}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 29368, "end_char": 29376, "source": "regex", "metadata": {"linked_statute_text": "Part II Rules", "statute": "Part II Rules"}}, {"text": "Part II Rules", "label": "STATUTE", "start_char": 30513, "end_char": 30526, "source": "regex", "metadata": {}}, {"text": "s. 56", "label": "PROVISION", "start_char": 30606, "end_char": 30611, "source": "regex", "metadata": {"linked_statute_text": "Part II Rules", "statute": "Part II Rules"}}, {"text": "Part II Rules", "label": "STATUTE", "start_char": 33003, "end_char": 33016, "source": "regex", "metadata": {}}, {"text": "that does not mean that Part II Rules", "label": "STATUTE", "start_char": 33143, "end_char": 33180, "source": "regex", "metadata": {}}, {"text": "Part II Rules", "label": "STATUTE", "start_char": 33719, "end_char": 33732, "source": "regex", "metadata": {}}, {"text": "Elementary Education Act, 1920", "label": "STATUTE", "start_char": 34525, "end_char": 34555, "source": "regex", "metadata": {}}, {"text": "Court once again held fhat Part II Rules", "label": "STATUTE", "start_char": 35072, "end_char": 35112, "source": "regex", "metadata": {}}, {"text": "this view was on an assumption that even Part II Rules", "label": "STATUTE", "start_char": 36234, "end_char": 36288, "source": "regex", "metadata": {}}, {"text": "s. 56(2)(h)", "label": "PROVISION", "start_char": 36305, "end_char": 36316, "source": "regex", "metadata": {"linked_statute_text": "But this view was on an assumption that even Part II Rules", "statute": "But this view was on an assumption that even Part II Rules"}}, {"text": "Division Bench of that High Court has held that Part II Rules", "label": "STATUTE", "start_char": 36850, "end_char": 36911, "source": "regex", "metadata": {}}]} {"document_id": "1971_1_716_718_EN", "year": 1971, "text": "., 16\n\nINAYAT ALI KHAN\n\nSTATE OF U. P.\n\nMay 6, 1971.\n\nB [S. M. Suoo, C. J., G. K. MITTER, C. A. V AIDL.u.INGAM, A. N. RAY\n\nAND P. JAGANMOHAN REDDY, JJ.J\n\nU.P. Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act I of 1961), s. 6(vii)--Exemption from ceiling-Horse-breeding farm whether exempt as a specialised Jann-Word 'and' in clause whether can be read as equivalent to 'or'.\n\nThe appellant was a horse-breeder.\n\nOn receipt of a notice un.der s. 10(2) of the U .P. Imposition of Ceiling on Land Holdings Act, 1960 h~ claimed exemption under s. 6(vii) of the Act on the ground that his farm was a specialised farm within the meaning of that sub-clause. The prescrib-- ed authority under the Act, the appellate court and the High Court in revision held against the appellant. In appeal by special leave,\n\nHELD : The sub-clause specially mentions two types of specialised farms, namely, those devoted to poultry-farming and dairying. As reaards others it leaves them to be prescribed by rules under s. 44 of the Act. In this context it is impossible to read the word 'and' as 'or'.\n\nRule 4(4) prescribes those specialised farms. but farms used for horse-breeding are not included. The appeal must therefore fail. [718F]\n\nOVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2018, 2019 and 2020 of 1968.\n\nAppeals by special leave from the judgments and orders dated March 2S, 1968 and March 20, 1968 of the Allahabad High Court in Criminal Revision No. 528, 576 and 518 of 1967.\n\nS. C. Agarwala and D. P. Singh, for the appellants (in all the appeals).\n\nS. c;. Manchanda and 0. P. Rana, for respondent (in all the appeals).\n\nThe Judgment of the Court was delivered by\n\nSikri, C. 1.-These appls by special leave raise a common question as to the interpretation of Section 6, Clause (xvii) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act I of 1961)-hereinafter referred to as the Act-and can conveniently be disposed of together.\n\nIn Writ Petition 261 of 1968 the vires of this provision is challenged.\n\nThis Writ Petition was heard alongwith these civil appeals and will be disposed of by a separate judgment.\n\nIn order to appreciate the point a few relevant facts in the case of Civil Appeal No 201~ of 1968 may be given. On receipt\n\nINAYAT ALI KHAN V. u. P. STATB (Sikri, CJ.) 71 '1\n\nof a notice under Section 10(2) of the Act the appellant, Inayat A Ali Khan, filed objections.\n\nHe is a horse-breeder. One objection was that he has a specialised farm and certain plots were being used for growing grass or for growing special types of crops which were used as fodder for horses.\n\nHe relied on Section 6 (xvii) of the Act, which reads as follows : -\n\n\"6. Exemption of certain land from imposition of B ceiling:- Notwithstanding anything contained in this Act, land falling in any of the categories mentioned below, shall not be taken into consideration for the purposes of determining the ceiling area applicable to, and the surplus land of, a tenure-holder- C ..................• ····· of Section 6 :\n\n(i) land under actual plantation of mulberry, castor and lac-host trees-Kusum, Khair, Palse and ber-which constitute a grove,\n\n(ii) land on which buildings, necessary for the rearing of worms or insects producing silk andi or lac, as the case may be, and for preparation of raw silk, andi and Jae, are situate, and\n\n(iii) land, not less than one acre in area, which is covered with water throughout the year and has been used for pisciculture for a continuous period of three years, duly certified as such by an officer of the Fisheries Department, not below the rank of an Inspector : Provided that the land to be exempted under items (i) and (ii) above is justifiable with reference to\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nthe production of raw silk, andi or lac during a series of years, not exceeding three. ·\n\nThe Prescribed Authority, Tahsil Sadar, held that the exemption claimed was not sustainable.\n\nThe Additional District Judge, on appeal, concurred.\n\nHe observed :\n\n\"The word 'and' in clause (xvii) of section 6 makes it clear that for purposes of exemption it is necessary that the land should be used for specialised farm and should be exclusively devoted to growing such articles or for such purposes as are specified in clause (xvii) and in Rule 4.\n\nIt cannot, therefore, be said that because this land is I\" ing used for growing a particular type of crop it will come under the definition of specialised farming.\n\nIn the explanation, appended to clause (xvii), a case of growing fodder has been referred to.\n\nThis explanation says that the land used for growing fodder purposes of dairy will be exempted. This explanation will, therefore, make it clear that the land used for growing fodder for other purposes will not come under the definition of specialised farming\".\n\nThe appellant filed a revision before the High Court. S. N.\n\nSingh, J., held that the lower appellate court had correctly interpreted the section.\n\nThe appellant having obtained special leave, the appeal is now before us for disposal.\n\nThe learned counsel for the appellant urged that the word 'and' in sub-clause (xvii} should, in the context, be read as 'or', and that all specialised farms used for non-agricultural purposes are entitled to exemption.\n\nWe see no force in this contention.\n\nThe sub-clause specially mentions two types of specialised farms, namely, those devoted to poultry farming and dairying. As regards others, it leaves them to be prescribed by rules under Section 44 of the Act.\n\nIn this context it is impossible to read the word 'and' as 'or'.\n\nRule 4(4) prescribes those specialised farms, but farms used for horse-breeding are not included.\n\nWe agree with the interpretation placed by the High Court.\n\nIn the result Civil Appeal No. 2018 of 1968 fails.\n\nThe facts in the other two appeals are similar.\n\nThese must also fail.\n\nThere will be no order as to costs.\n\nG.C.\n\nAppeals dismissed.", "total_entities": 18, "entities": [{"text": "16\n\nINAYAT ALI KHAN", "label": "PETITIONER", "start_char": 3, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "INAYAT ALI KHAN", "offset_not_found": false}}, {"text": "STATE OF U. P", "label": "RESPONDENT", "start_char": 24, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "STATE OF U. P", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 76, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 112, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY, JJ", "label": "JUDGE", "start_char": 127, "end_char": 150, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "Imposition of Ceiling on Land Holdings Act, 1960", "label": "STATUTE", "start_char": 159, "end_char": 207, "source": "regex", "metadata": {}}, {"text": "s. 6(vii)", "label": "PROVISION", "start_char": 230, "end_char": 239, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act, 1960", "statute": "Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 452, "end_char": 460, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act, 1960", "statute": "Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "Imposition of Ceiling on Land Holdings Act, 1960", "label": "STATUTE", "start_char": 474, "end_char": 522, "source": "regex", "metadata": {}}, {"text": "s. 6(vii)", "label": "PROVISION", "start_char": 550, "end_char": 559, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act, 1960", "statute": "Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "s. 44", "label": "PROVISION", "start_char": 1005, "end_char": 1010, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act, 1960", "statute": "Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 1764, "end_char": 1773, "source": "regex", "metadata": {"statute": null}}, {"text": "Imposition of Ceiling on Land Holdings Act, 1960", "label": "STATUTE", "start_char": 1802, "end_char": 1850, "source": "regex", "metadata": {}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 2329, "end_char": 2342, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act, 1960", "statute": "Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 2621, "end_char": 2630, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act, 1960", "statute": "Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 3667, "end_char": 3676, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 4701, "end_char": 4710, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 6155, "end_char": 6165, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_719_720_EN", "year": 1971, "text": "LATAFAT ALI KHAN AND ORS. f\n\nTHE STATE OF U. P.\n\nMay 6, 1971. [S. M. Snw, C.1., G. K. MITTER, C. A. VAID!ALINGAM, A. N. RAY B\n\nAND P. JAGANMOHAN REDDY, JI.)\n\nU.P. Imposition of Ceiling on Land Ho/dints Act (U.P. 1 of 1961), .s. 6(xvlr) and r. 4(4) of the Rules made thereunder-If protect•' bv Arts.\n\n31A and 3lB.\n\nSection 6(xvii) of the U.P. Imposition of Ceiling on Land Holdings C Act, 1960, and rule 4(4) of the rules made thereunder are protected by Arts. 31A and 31B of the Constitution. [720C-D) ·\n\n(a) They are part of a scheme of land reform in U.P. and would th~ fore be protected fromattack under Art. 31A. [720D]\n\n(b) The rule does not go beyond the powers conferred by the section read withs. 44 of theAot, andthe Act is included to the Ninth Schedule to the Constitution. If a statutory rule is within the power conferred by a section of a statute protected by Art. 31B the rule cannot further be scrutinised under Arts. 14, 19 and 31.\n\n[720C]\n\nORIGINAL JURISDICTION : Writ Petition No. 261 of 1968.\n\nPetition under Article 32 of the Constitution of India for the enforcement of fundamental rights.\n\nS. C. Agarwala and D. P. Singh, for the petitioner.\n\nS. C. Manchanda and 0. P. Rana, for the.respondent\n\nThe Judgment of the Court was delivered by\n\nSikri, C. J.-This petition under Art. 32 has been filed by the three appellants in Civil Appeals No. 2018-2020 of 1968, in which we have just delivered judgment. In .this petition the vires of s. 6, cl. (xvii), of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act 1 of 1961)-bereinafter referred to as the Act-and rule 4(4) of the U. P. Imposition of Ceilings and Land Holdings Rules, 1961, have been challenged.\n\nIt is urged that these provisions violate Art. 14, 19(1)(f) and (g) and 31 (!) of the Constitution. The learned counsel for the State contended that the impugned provisions are protected by Art. 3 IB of the Constitution, as the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 is included in the Ninth Schedule as item 58. The learned counsel for the petitioners, in reply, urged (!) that the impugned provisions have nothing to do with land reform, and (2) that rules made under the Act do not enjoy the protection of Art. 318. It is admitted that the land\n\nSUPllEME COUllT 11.EPOllTS [1971] SUPP. s.c.11..\n\nin dispute is a 'holding' within s. 3(d) of the Act. The definition reads :\n\n\"Holding\" l!leans the land or lands held by a person as a bhumidhar, slrdar, asami of Gaon Samaj or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as. a tenant under the U.P. Tenancy Act, 1939, other than\n\na sub-tenant, or as a Government lessee, or as a 11ublessee of a Government lessee, where the period of the sub-lease is co-extensive with the period of the !eaie.'•\n\nIt seems to us that if a statutory rule is within the powers: conferred by a section of a statute protected by Art. 3 lB, it is difficult to say that the rule must further be scrutinised under\n\nArts. 14, 19, etc.\n\nRule 4(4) seems to us to be a rule which does not go beyond the powers conferred under s. 6(xvil), read with s. 44 of the Act. At any rate, s. 6(xvii) and rule 4(4) arepart of a scheme of land reform in U.P. and would be protected from attack under Art. 31 A of the Constitution.\n\nIn the result we hold that s. 6(xvii) and rule 4(4) aro valitl.\n\nThe petition accordingly fails.\n\nIn the circumstances there will\" be no order as to costs.\n\n~.P. S.\n\nPetition dismissed.", "total_entities": 37, "entities": [{"text": "LATAFAT ALI KHAN AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "LATAFAT ALI KHAN AND ORS", "offset_not_found": false}}, {"text": "f\n\nTHE STATE OF U. P", "label": "RESPONDENT", "start_char": 26, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF U. P", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "A. N. 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SIKRI*", "offset_not_found": false}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1295, "end_char": 1302, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 1455, "end_char": 1459, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Imposition of Ceiling on Land Holdings Act, 1960", "label": "STATUTE", "start_char": 1485, "end_char": 1533, "source": "regex", "metadata": {}}, {"text": "Imposition of Ceilings and Land Holdings Rules, 1961", "label": "STATUTE", "start_char": 1618, "end_char": 1670, "source": "regex", "metadata": {}}, {"text": "Art. 14, 19(1)(f)", "label": "PROVISION", "start_char": 1737, "end_char": 1754, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceilings and Land Holdings Rules, 1961", "statute": "Imposition of Ceilings and Land Holdings Rules, 1961"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 1885, "end_char": 1891, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceilings and Land Holdings Rules, 1961", "statute": "Imposition of Ceilings and Land Holdings Rules, 1961"}}, {"text": "Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960", "label": "STATUTE", "start_char": 1923, "end_char": 1985, "source": "regex", "metadata": {}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 2005, "end_char": 2019, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960", "statute": "the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "Art. 318", "label": "PROVISION", "start_char": 2228, "end_char": 2236, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960", "statute": "the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "s. 3(d)", "label": "PROVISION", "start_char": 2351, "end_char": 2358, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960", "statute": "the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 2517, "end_char": 2527, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960", "statute": "the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960"}}, {"text": "Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 2535, "end_char": 2595, "source": "regex", "metadata": {}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 2628, "end_char": 2645, "source": "regex", "metadata": {}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 2937, "end_char": 2943, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Arts. 14, 19", "label": "PROVISION", "start_char": 3020, "end_char": 3032, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 6(xvil)", "label": "PROVISION", "start_char": 3127, "end_char": 3137, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 44", "label": "PROVISION", "start_char": 3149, "end_char": 3154, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 6(xvii)", "label": "PROVISION", "start_char": 3180, "end_char": 3190, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 3289, "end_char": 3296, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 6(xvii)", "label": "PROVISION", "start_char": 3348, "end_char": 3358, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}]} {"document_id": "1971_1_721_730_EN", "year": 1971, "text": "72J\n\nFOOD INSPECTOR, CALICUT C0Rl'ORA't10N A\n\nCHERUKATrlL GOPALAN AND ANR.\n\nMay 6, 1971.\n\n[C. A. VAIDIALINGAM AND A. N. RAY, JJ.]\n\nPrevention of Food Adulteration Act, 1954 (37 of 1954)-Section 16 (l)(a)(i)-Sale of Food for ana/ysit-To be guilty of offence under section, food need not be intended for sale and person selling need not be a dealer.\n\nA sale of an article of food for analysis being \"sale\" within the meaning of s. 2(xiii) of the Prevention of Food Adulteration Act, 1954, an anicle of food sold to the Food Inspector, if found to be adulterated. the M:Cusep<>111.lents, urged that in order to make the respo!'!dents liable, it must be established that they were dealers in sugar as such.\n\nIn view of the concurrent findings based upon the ad mission of the Food Inspector that the accused were not clea!ers in sugar as such and that the sugar kept by them was intenaed to be used in the preparation of tea, their acquittal is justified.\n\nBefore we proceed to deal with these contentions with reference to the provisions of the Act and certain decisions placed before us by both the learned counsel, it is to be recorded that Mr. Nambiar has made it clear that his clients do not want the respondents to be convicted, in case his contentions are acceptea.\n\nOn the other hand, he stated that the Corporation is only anxious to have a decision of this Court on the legal point.\n\nWe will now refer to some of the material provisions of the Act.\n\nSection 2(1) defines the various expressions enumerated 'therein. In particular it is only necessary to refer to clauses 5, 12, 13 and 14 defining the expressions \"food''. \"prescribe\", _\"sale\" and \"sample\" respectively. They are as follows :\n\n\"(v) \"food\" means any article used as food or drink for human consumption other than drugs and water and includes-\n\n(a) any article which ordinarily enters into. or is used in the composition or preparation of human food, and\n\n(b) any fiavouring matter or condiments : \"\n\n\"(xii) \"Prescribed means prescribed by rules made under this Act.\"\n\n(xiii) \"sale\" with its grammatical variations and cognate ex ·\n\npressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale. the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any sueh article;\n\nPOOD INIPECl'OR J, (l, QOP4UK (Y(dd/Q/111gam, J.)\n\n.(xiv) \"samplo\" means a samplo of any articlo of food taken\n\nunder tho provisions of this Act or of any rules made thereunder.\"\n\nThere is no controversy that sugar with which we aro oeoncemed in this case is an article used as food for human consumption or at any rate it is an article which ordinarily entered into or is used in the composition or preparation of human food.\n\nEven accordng to the respondents the sugar so kept in their tea stall was intended to be used in the preparation of tea which was being sold to the customers. A reference to the definition >Of 'sale' will also show that a sale of any article of food for analysis comes within .that definition.· That the sample of food purchased by the Food Inspector in this case satisfies the defini- .tion of 'sale' in clause 14 is also beyond controversy.\n\nBefore we refer to certain other sections, it is necessary to 11tate that ss. 4(2) & 23(1) of the Act give power to the Central Government to make rules in respect of the matters referred to in those sub-sections.\n\nBy virtue of the powers conferred under ss. 4(2) and 23(1) the Central Government have framed the Prevention of Food Adulteration Rules, 1955 (hereinafter to be referred to as the Rules). Rule 5 provides that the standards of quality of the various articles of food specilied in Appe:idix B to the Rules are as defined tn that Appendix. Appendix B deals with the definition and standards of quality. Item A. 07.01 of -_the appendix deals with cane sugar and enumerates its contents. -It is not necessary for us to deal with the definition of the expression 'adulterated' in s. 2(i) as well as the requirements under -item A. 07.01 of the Appendix B .. of the Rules as there is no challenge to the report of the PuWic Analyst that the sugar in question was adulterated, as it does not conform to the requirements of the item mentioned above.\n\nIn fact the High Court as well as the District Magistrate have also proceeded on that basis.\n\nWe will now revert back to the Act.\n\nSection 7 prohibita the manufacture, sale etc. of certain articles of food.\n\nIt is not necessary to refer to the various items enumerated therein. But we will refer only to the main part of s. 7, whicl> is as follows\n\n\"Section 7. No person shall himself or by any person <>n his behalf manufacture for sale, or store, sell or rlistribute--- ..\n\nIt will be seen that. s. 7 deals not only with manufacture, we, storing or distributing but also selling. We are particular1y\n\nemphasisin11 this aspect because it has been missed in this case\n\nSUPREME COURT REPORTS (1971] SUPP. s.c.R.\n\nnot only by the two courts but also in some of the decisions, to which our attention has been drawn. Section 10 deals with the powers of the Food Inspector.\n\nUnder sub-section IO(l)(a) the Food Inspector has power to take samples of any article of food from any of the persons enumerated in sub-clauses (i) to (iii) Section 12 gives a right even to a purchaser, wh6 is not the Food Inspector of having the article of food analysed by a Public Analyst in accordance with that section. Section 16(1)(a)(i), breach of which is alleged against the respondents is as follows :\n\n\"S. 16(1) If any person-\n\n(a) whether by himself or by any other person on bis behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food-\n\n(i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health; ..\n\nHere again it is to be noted that any person who sells any article of food which is adulterated shall be punishable. in accordance with that section. The Food Inspector purchased sugar on November 17, 1965, from the tea stall of the respondents on payment of price. The said transaction clearly amounts to a sale under s. 2(xiii) of the Act. From the definition of \"sale\" already quoted, a sale of an article of food for analysis is a sale. Under such circumstances it amounts to a sale under the Act as has been laid down by this Court in Mangaldas Raghavji Ruparel and another v.\n\nThe State of Maharashtra and another(').\n\nIt was held in the said decision that there is a special definition of \"sale\" in s. 2(xiii) of the Act whcih specifically includes within its ambit the sale for analysis.\n\nMr. Nambiar referred us to certain decisions to the effect that when once there is a sale as defined in the Act of an article of food, it is not necessary to establish that the accused are dealers in that article as such.\n\nIn the decision reported in Municipal Board, Faizabad v. Lal Chand Surajmal and another(\")\n\nthe accused had a shop wl'.ere tea was sold and for the purpose of preparing tea, they had stored milk which was a necessary ingredient for the preparation of tea. The Food Inspector took a sample of milk from the tea shop and on analysis it was found to be adulterated. The question was whether the accused could be convicted for an offence under s. 16(1)(a)(i) read witlt s. 7 of the Act. The plea of the accus¢ was that the milk kept in\n\n965) 2 S.C.R. 894, .R. 1964 All. 199.\n\nPOOD INSPECTOR v.c. wn the principle that when there is . a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under s. 16(1)(a)(i) read with s. 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opi nion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions.\n\n(1) A.I.R. 1964 All. 199.\n\n(2) A.I.R. 1965 Mad. 98.\n\n7at\n\n''130\n\n!UPRBMB COURT REPORTS\n\n[1971) SUPP. S.C.R.\n\nComing to the case on hand, on the finding of the two courts the sugar in question has been found to be adulterat@d.\n\nThe purchase by the Food Inspector from the accused of sugar for purposes of analysis is a sale under s. 2(13) of the Act.\n\nSection 7 prohibits a person from selling adulterated article of food.\n\nSimilarly, under s. 16(1)(a)(i) any person who sells adul terated food commits an offence and is punishable therein. The sugar which is the commodity before us is food under s. 2(5) of the Act.\n\nWe have already pointed out that sugar by itself js an article used as food or at any rate it is an article whiclr ordinarily enters into or is used in the composition or preparation of human food.\n\nIn this case the sale was for analysis and the article was an article of food and in view of the concurrent findings of both the courts that it was adulterated, the respondents have contravened ss. 7 and I 6(l)(a)(i) of the Act. Hence it must be held that the respondents are technically guilty of the offence with which they were charged and they have been wrongly acquitted by the High Court and the District Magistrate.\n\nBut in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the res pondents, we merely set aside the order and judgment of the High Court. But we may make it clear that apart from holding the respondents t.echnically guilty, we are not setting aside the order of acquittal passed in their favour.\n\nIn the result the judgment and order of the High Court are set aside and the appeal allowed.\n\nWe find that on December 12, 1968 when granting special leave this Court had directed the appellant to deposit Rs. 1000 /- to be used by the respondents for their costs and liberty has been given to the respondents to withdraw the amount to pay fee to the counsel, in case they engage a counsel. As the respondents have engaged a counsel, they are entitled to withdraw from the court deposit the amount representing the costs incurred by them and the fee payable to the counsel under the relevant rules. Surplus, if any, will be refunded to the appellant.\n\nK.B.N.\n\nAppeal allowed.", "total_entities": 52, "entities": [{"text": "72J\n\nFOOD INSPECTOR, CALICUT C0Rl'ORA't10N", "label": "PETITIONER", "start_char": 0, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "FOOD INSPECTOR, CALICUT CORPORATION", "offset_not_found": false}}, {"text": "A\n\nCHERUKATrlL GOPALAN AND ANR", "label": "RESPONDENT", "start_char": 43, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "CHERUKATTIL GOPALAN AND ANR", "offset_not_found": false}}, {"text": "A. N. RAY, JJ.", "label": "JUDGE", "start_char": 114, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "A.N. 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"source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 22085, "end_char": 22090, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)(a)(i)", "label": "PROVISION", "start_char": 22546, "end_char": 22560, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 22571, "end_char": 22575, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(13)", "label": "PROVISION", "start_char": 23321, "end_char": 23329, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 23343, "end_char": 23352, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)(a)(i)", "label": "PROVISION", "start_char": 23432, "end_char": 23446, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(5)", "label": "PROVISION", "start_char": 23589, "end_char": 23596, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 7", "label": "PROVISION", "start_char": 24003, "end_char": 24008, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_731_740_EN", "year": 1971, "text": "MANSOOR & ORS.\n\nSTATE OF MADHYA PRADESH\n\nMay 6, 1971\n\n[I. D. DUA AND V. BHARGAVA, JJ.J\n\nCode of Criminal Pracedure, 1898, s. 4(1) (t), 492, 411(3}-Presentatio11 of opp.al In High Court against acquittal of accused-Additional Govern ment Advocate when appointed Public Prosecutor can present appeal-\n\nSuch appeal is a 'case' in which the Public Prosecutor is entitled to act- Power of High Court in hearing appeal against acquittal-Principles.\n\n731'\n\nConstitution of India, Art. 136-Scope of arguments in appeal by c special leave.\n\nThe appellants were charged along with five others for the offences of murder and attempt to murder. Five accused persons were acquitted by the trial court. Four of the appellants were convicted by the trial court, the conviction being upheld by the High Court. The fifth appellant was acquitted by the trial court but convicted by .the High Court m an appeal D. by the State. In appeal by special leave it was contended before this Court; (i) that the conviction of the appellants coulli not be sustained on the evidence ; (ii) that the High Court in reversing the judgment of acquittal by the trial court against one of the appellants had not followed the prin ciples laid down by this Court ; and (iii) that the Additional Government Advocate was not authorised to present the a\\'P°\"l against acquittal in the High Court because such appeal was not a 'case.\n\nHELD: {!) Under Art. 136 of the Constitution this Court does not norm8.Uy re-appraise the evidence for considering. the credibility of the witnesses. Unless the trial is -vitiated by some illegality Qr irregularity of procedures or their is some violation of the rules of natural justice resulting in unfair trial, or unless the judgment has resulted in gross miscarriage of justice, this Court does not as a rule proceed to eyaluate the evidence\n\nfor coming to its own independent conclusion.\n\nNo such infirmity had F been made out by the appellants' counsel in the present case. [736 Fl\n\n(ii) The appellants' . counsel was also unable to show that the High Court in reversing the judgment of the trial court against one of the appellants had failed to observe !he principles laid down by this Court.\n\n[737 HJ\n\nSanwat Singh & Ors. v. State of Ra; asthan, [1961] 3 S.C.R. 120, Keshav Ganga Ram Navaga & Anr. v. State of Maharashtra, Cr. A. No. 100/68 dt 3-2-1971, Sheo Swarup v. King Emperor, (1934) L.R. 61 I.A. 398 and\n\nLaxman Kalu v. State of Maharashtra, A.I.R. 1968 S.C. 1390, referred fo.\n\n(iii) The Additional Government Advocate who presented the appeal against acquittal in the High Court was notified as Public Prosecutor for\n\nth• High Court in respect of cases arising in the State of Madhya Pradesh.\n\nThe case re~tilll in the acquittal of the accused persons would clearly\n\n~· a cue lf!Stnl in the State and within the contemplation of the notifica lien.\n\nRead1n1 s. 4(f)(t) Cr. P.C. which defines 'public prosecutor' toaother\n\n. D\n\nSUPREMB COtlRT REPORTS\n\n[1971] SUPP. 9.1:.1..\n\nwith s. 492 Cr. P. C. under which the State Government is empowered to appoint Public Prosecutors, the Additional Government Advocate when appointed as a Public Prosecutor for tho High Court in respect of caseo arising in tho State of Madhya Pradesh must be held to be a Public Prosecutor lawfully empowered to present appeals in High Court against orders of acquittal. [740 C] •\n\nBhimappa Basappa Bhu Sannayar v. Laxman Shivrayappa Samagoud\" & Ors. A.I.R. 1970 S.C. 1153 and Bhagwan Das v. The King, Al.R. 1949 P.C 263, referred to.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 30 and 31 of 1967.\n\nAppeals by special leave from the judgment and order dated April 21, 1966 of the Madhya Pradesh High Court, Indore Bench in Criminal Appeals Nos. 248 and 313 of 1965.\n\nNur-ud-din Ahmed, C.L. Sareen, 1. C. Talwar and R. L.\n\nKohli for the appellants (in Cr. A. No. 30 of 1967).\n\nI. N. Shroff, for the appellant (in Cr. A. No. 31 of 1967).\n\nNurud-din Ahmed, C. L. Sareen, S. K. Mehta and K. L .\n\nMehta, for respondents Nos. 1 to 4 and 9 (in Cr. A. No. 31 of 1967).\n\nThe Judgment of the Court was delivered by\n\nDua, J.-These are two appeals by special leave. In one appeal, Mansoor, Rashid, Ishaq, Yunus and Mehmood sf o Bhondekhan are the appellants and in the other the State has appealed. against the acquittal of Ajimkhan, Hakimkhan, Mahmood.khan sf o Dilawarkhan, Gabbu and. Mehmood s/ o Bhondekhan.\n\nAll the ten accused, namely, Mansoor sf o Bhondekhan, Rashid sfo Allabeli, Ishaq sfo .Wali Mohammad, Yunus sfo Mohammed Hussain, Ajimkhan s/o Wariskhan, Hakimkhan s/o Anaskhan, Mahmood.khan s Io Dilawarkhan, Gab bu s Io Mohammad Sharif, Mahmood s/o Bhondekhan and Makku s/o Bhondekhan, were charged and tried by Additional Sessions Judge, Indore, for offences under ss. 302134, 3021149, 307134 and 307 /149 I.P.C. Out of them 8 accused persons, namely Mansoor, Rashid, Ishaq, Yunus, Ajimkhan, Hakimkhan, Mahmood.khan s Io Dilawarkhan and Mehmood s Io Bhondekhan, were in addition charged under ss. 302, 307 and 148 I.P.C.\n\nAll these charges relate to the murder of one Karamat Beg Pahalwan s/o Mirza Karim Beg at Bombay Bazar Choraha on January 19, 1965, at about 12·30 P.M. and to an attempt on the life of Ikbal Beg s/o the deceased Karamat Beg Pahalwan at the same time and place.\n\nThe Trial Court convicted Mansoor,. Rashid, Ishaq and Yunus and acquitted the rest giving them benefit of doubt ni regard to Gabbu it was observed that he had not been shoo\n\nllANSOOll. p, MADHYA Pll.ADISH (Dua,/.)\n\n73:J\n\nto be in possession of any weapon of offence and that it could not be said that he had any knowledge of the object of the members of the party led by Mansoor. m, was, therefore, held not to be member of this assembly. No other case was sought to be made out against him.\n\nEach of the three itijuries (Nos. 2, 3 & 9) inflicted on the deceased Karamat Beg were held by the Trial Court to be indivftlually sufficient in the ordinary course of nature to cause Karamat's death.\n\nBut as none of the accused persons were proved beyond doubt to have inflicted any particular fatal injury to the deceased, they , were all convicted under s. 302 read with s. 34 I.P.C.\n\nFor coliiing to the finding of common intention, reliance was placed on Mathurala Adi Reddy v. The State of Hyderabad. (') The injury. inllicted on Ikbal Beg was imputed to Mansoor, but this injury was held to constitute an offence only under s. 324 I.P.C. As all the four accused had joined in this assault with common intention they were all convicted under s. 324 read with s. 34 I.P.C. Under s. 302/34 I.P.C. all the four accused were sentenced to imprisonment for life and under s. 324/34 I.P.C. they were sentenced to 6 months rigorous im prisonment.\n\nThe convicted persons appealed to the High Court against their conviction, and the State appealed against acquittal of the others. The State also presented a revision petition for enhancoment of the sentences imposed on those convicted.\n\nThe High Court upheld the conviction of Mansoor, Rashid, Ishaq and Yunus and dismissed their appeal.\n\nIt allowed the State appeal only against the acquittal of Mehmood sf o Bhondekhan and convicted him along with four persons convicted by 'the Trial Court. The result was that the charges under s. 148\n\nf:P.C. and s. 302/149 I.P.C. were also held proved against all the five convicted accused persons. This charge was held established in addition to the charge under s. 302/34 I.P.C. Similarly with respect to the injury inflicted on Ikbal Beg, the charge under s. 324/ 149 I.P.C. was held proved. In the final result, Mehmood s/o Bhondekhan along with the four accused persons convicted by the Trial Court were all held guilty of offences under s. 302 / 34 I.P.C., s. 302/149 I.P.C. and s. 148 I.P.C. With respect to tho injuries inflicted on Ikbal Beg also all these five persons were held guilty of offences under s. 324 read with ss. 34 and 149\n\nI.P.C.\n\nThe sentence for this offence was maintained, but they were in llddition sentenced under s. 148 I.P.C. to one year's rigorous imprisonment The High Court did not find any cogent ground for enhilncing tho sentence of life imprisonment to that\n\n(I) A.t.R.. 1956 S.C. 177.\n\nSUPRRMB COURT REPORTS [1971] SUPP. s.c.a.\n\nof death for the offence under S. 302 read with Ss. 34 and 149 I.P.C. The revision was accordingly dismissed.\n\nIn this Court. again there are two appeals-one by the five accused convicted by the High Court, and the other by the State against the acquittal of the remaining five accused persons.\n\nIn the !\\ppeal by the State the sentence for life imprisonment has been stated to be inadequate for the gruesome murder in broaq day-light. Both these appeals have been presented in this Court by special leave under Art. 136 of the Constitution. They were first heard by us on August 27 & 28 and September 22, 1970.\n\nIt appears from the record that the accused persons had not filed any list of defence witnesses in the Court of Committing Magistrate.\n\nA list of 13 witnesses was, however, filed in the Court of the Additional Sessions Judge and summons were issued with res pect to those witnesses. On the day when the defence witnesses were to be examined they were not present with the result that the Trial Court declined further adjournment for their production.\n\nAt the time of arguments in the Trial Court the question ot prejudice to the accused persons because of the refusal to grant adjournment for the production of the defence witnesses was raised, but the Court did not consider that any prejudice had resulted to the accused persons who wanted to examine them.\n\nFrom the record we findthat only Mansoor.\n\nMebmood s/o Bhondekhan, Mahmoodkhan s Io Dilawarkhan, Hakimkhan and Ajimkhan desired to examine defence witnesses. The other accused persons had declined to examine any witness in defence. . Out of the list of 13 witnesses Shri Bonge the hand-writing expert was given up. The circumstances in which the defence witnesses were disallowed by the Trial Court are that on June 10, 1965, the accused persons were called upon to enter upon their defence.\n\nIt was found that none of the defence witnesses were present in the Court on that day. It also appears that the plea in support of which the witnesses, except witnesses Nos. 9 & 13, were sought to be examined was one of alibi. The Trial Court granted an adjournment only for one day to enable the accused persons to secure the attendance of the witnesses on June 11, 1965.\n\nOn that day, two witnesses were reported to be out of station and with respect to one witness it was reported that there was no person of that name at the alidress which had been taken from the list of defence witnesses furnished by the accused.\n\nThe summons to Munshi had not been received baek. The defence was, in the circumstances, closed.\n\nAfter Shrl Nuruddin bad addtessed us on thls grievance, Wll asked hjm if he at this stage considered 'it necessary to examine. the witrtesses in defence.\n\nThe learned counsel, after consulting his clients and considering the matter, stated in the Court that\n\nMANSOOR v. MADHYA PRADe$H (Dua, J.)\n\nlie was not interested in producing any defence evidence at this late stage. Arguments were then continued and practically at the close of the arguments Shri Nuruddin on reconsideration of the matter expressed his desire to be permitted to produce defence evidence. We accordingly made an order on September 22, 1970 directing the Trial Court to permit the accused persons to examine IO witnesses. This request, though belated, was allowed in the interests of justice. In the Trial Court, however, only one witness Munshi Khan s Io Kasam was examined in defence.\n\nAccording to this witness he had gone to the Trial Court on June 16, 1965 but was informed by some clerk or peon that the case had already been decided : thereupon he returned home. According to his evidence about S or 6 years ago during the days when the incident in question took place his mother was ill and had been admitted in the M.Y. Hospital. The incident in question had, according to him, taken place in Bombay Bazar llear Agra Hotel. The witness used to visit Mehrabkhan Patel who had a milk shop in Bombay Bazar and indeed he used to sleep at Mehrabkhan's place. At about 12 noon on the date of the incident the witness and Chhotekhan were talking to each other near Asra Hotel when they saw Karamat Pahalwan coming from Mochipura side uttering abuses to lshaq and Mansoor. Mansoor was also seen standing opposite Agra Hotel. Karamat Pahalwan saying that Mansoor's servants had started thinking too much of them selves because of incitement from their master rushed at Mansoor with a stick measuring 2 or 21 ft. in length and 1 or I! inches thick. Karamat gave a blow to Mansoor with the stick hitting him on the head. Mansoor started bleeding. Chhotekhan took Mansoor on his bi-cycle to the police station.\n\nA big crowd. collected there but the witness went away. This i~ all that. this witness stated in his examination-in-chief. In cross-examination he said that he could not remember the date of the incident and also that he did not know whether Chhotekhan was alive or dead.\n\nAccording to him none pf the accused present in the Court were present at the scene of the occurrence except Mansoor.\n\nThe witness remained in the M.Y. Hospital for about eight days in connection with his mother's treatment. He denied that Ikbal s/o Karamat had any stick in his hand or that he gave any blow to Mansoor. This evidence seems to us to be wholly on-impressive and does not call for any serious consideration or comment.\n\nWhen these appeals came up for hearing before us with the remand report of the Trial Court and the record of the defence evidence, Shri C. L. Sareen the learned counsel appearing in support of the appeal by the convicted appellants again took us through the relevant record and addressed arguments challenging the. conviction of the appellants. After reading the testimony of\n\nM; unshikhan he made a .faint attempt to persuade us to acrept\n\n8llPREMll COURT REPORTS [1971] .stJPP. s.c.R.\n\nhis evidence, but realising the futility of this venture he soon gave up the attempt.\n\nHis main and principal contention, however, was that the witnesses whose evidence was not relied upon by the Trial Court with respect to the presence of the five accused persons, whose acquittal was upheld by the High Court, should. not have been believed for convicting the present appellants. In support of this contention be took us thtough the evidence of Iqbal Beg s/ o the deceased (P.W. 1) and submitted that be was an interested witness and his evidence was unbelievable because his iesdmony did not tally with the evidence of Narayansingh P.W. 25 who had prepared the site plan. The counsel also referred to certain portions of the statements of Ahmed Khan P.W. 2, Mohammad Shafi P.W. 3, Ismail P.W. 6, Dr. B. N.\n\nChatterjee, P.W. 10, Shitlaprasad P.W. 24 and. Abd11lkadar P.W.\n\n29 for the purpose of persuading us to bold that their evidence is not worthy of credane. His attack was also di!'Prted to the First Information Report According to him the F .LR. lodged by Ikbal Beg was not in reality the first information in point of time, because the information with regard to this incident hacf already been made by Mansoor. We are wholly unable to agree with the counsel that the information lodged by lkbal Beg was not the F.I.R. and that Mansoor had made the reporl earlier.\n\nThe case diary of the police was also subjected to some criticism for the purpose of discrediting the investigation.\n\nAll these arguments which the learned counsel has taken pains to advance are misconceived in this Court for ihe simple reason that under Art. 136 of the Constitution this Court does not normally re-appraise the evidence for considering the cre0.ibility of the witnesses as if it is a court of first appeal. Unless the criminal trial is vitiated by some illegality or irregularty of procedure or there is some violation of the rules of natural justice resulting in unfair trial, or unless the judgment has resulted in gross miscarriage of justice, this Court does not as a rule proceed to evaluate the evidence for coming to its own independent conclusion. No such infirmity has been made out by the appellants' learned counsel.\n\nWe may briefly state the broad essential features of the prosecution story as narrated by the eye witnesses and as accepted by the High Court. Mansoor has employed accused Isbaq. Yunus and Gabbu.\n\nRashid is a friend of Mansoor since childhood.\n\nAccused Mahmoodkhan s/o Dilawarkhan, Ajimkhan and Hakimkhan are three Pathans who usually visited Mansoor's shop. They are stated to indulge together in the nefarious trade of smuggling opium.\n\nKaramat Beg and his son Ikbal Beg are opposed to Mansoor's party.\n\nIndeed there have been incessant quarrelll between the two factions. Mansoor' s servants often nsed to ac1\n\nMANSOOR v. MADHYA PRADESH (Dua, J.)\n\nin offensive and provocative manner tow; irds Karamat and his son.\n\nAs a result of fresh trouble about a couple of months prior to the present occurrence, proceedings under s. 107 Cr.\n\nP.C. were also initiated between the parties.\n\nOn January 19, 1965, Karamat started from Taj Laundry at about noon time for going to his house with 'some guava fruit and a bottle. Those were Rwnzan days. He was proceeding along Jawahar Marg and as he turned towards Bombay Bazar he met Ishaq and Yunus Ishaq spot at Karamat which infuriated him.\n\nIn his younger days Karamat used to be known as a renowned wrestler. Ishaq ran away followect by Kramat who was shouting at Ishaq. When they reached near the Grand National Bakery they saw Mansoor there. On Karamat's complaint about misbehaviour of Mansoor's servants, Mansoor retorted that the matter should be settled once for all right then. Ikbal hearing his father's shouts also followed him.\n\nIn response to Karamat's enquiry as to what was to be settled, Mansoor directed his servants to start the job.\n\nRashid than assaulted Karamat with a knife.\n\nMansoor also suggested that Karamat's veins should be cut off.\n\nIkbal who had also reached there snatched a stick from a faqir who happened to be closeby and tried to save his father. But before he could intervene Mansoor had given one knife blow to Karamat on his neck and another on his chest.\n\nYunus and Ishaq also started grappling with Karamat. Ikbal gave stick blows to them. On this Mansoor\n\nasked Rashid to cut off Ikbal's veins and he himself also aimed a knife blow at Ikbal but the blow missed the mark.\n\nIkbal in the meantime slipped away but not before Ishaq had caused him an injury on his left hand.\n\nMehmood also gave a blow on Ikbal's left arm. Karamat who was given further blows by the pacty of Mansoor became unconscious.\n\nIkbal straight went to the police station and lodged the report. These broad features of the prosecution version as given by the eye witnesses were accepted by the High Court and since it was a case of party factio!ls the evidance was sifted. by both the Courts to see that if there was some element of doubt with respect to any individual accus.ed person he should be given its benefit.\n\nMr. Sarin next submitted that the High Court had not followed the standard laid down by this Court for dealing with the appeals against acquittal and in support of this submission he relied on the decisions of this Court in Sanwat Singh & others\n\nv. State of Rajasthan(') and on an unreported judgment of this Court in lfeshav Ganga Ram Navge & Anr v. State of Maha. rashtra('). In our opinion, this submission is wholly unfounded.\n\nThe High Court did not ignore the standard laid down by this\n\nc1> [19611Js.c.R.120.\n\n(2) Cr. A. No. 100 of 1968 decided on Febru, ry 3. 197!.\n\n47-1 S.C. lndia/71\n\nSUPREME COURT REPORTS [1971) SUPP. s.c.R.\n\nCourt in Sanwat Singh's case('). According to that decision the words \"substantial and compelling reasons\" for setting aside an order of acquittal used in this Court's earlier decisions are intend ed to convey the idea that an appellate court shall not only bear in mind the principles laid down by the Privy Council in Sheo Swarup v. King Emperor,(') but must also give its clear reasons for coming to the conclusion that the order of acquittal was wrong. In the case before us the High Court has kept these observations in view when dealing with the acquittal appeal.\n\nIn Keshav Ganga Ram Navge's case(') the Additional Se.sions Judge had disbelieved the evidence of the eye witnesses, who according to him, had spoken about the incident in a parrot-like manner. The three dying declarations were also rejected by the Trial Court and the other evidence was also held untrust worthy. The High Court on appeal against the acquittal relied on two out of the three dying declarations and while dealing with the evidence of the eye witnesses did not consider the discrepancies and improbabilities of the version given by those witnesses as pointed out by the Trial Court. The Court quoted with approval some observations made in Laxman Kalu v. State of Maharashtra(') in which it was said that the powers of the High Court in an appeal against acquittal are not different from the powers of the same Court in hearing an appeal against conviction, but the High Court in reversing the judgment of the Sessions Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. The High Court in the case before us, in our opinion did not go against these observations.\n\nIndeed the appellants' learned counsel was unable to show how the High Court had ignored the principles laid down by this.\n\nCourt in the decisions cited while dealing with appeals against acquittal. In Sanwat Singh's case('), it is worth-noting, this Court had dismissed the appeal and had made the following observations with regard to the exercise of power of this Court under Art. 136 of the Constitution. It was said there :\n\n\"Article 136 of the Constitution confers a wide discretionary power on this Court to entertain appeals in suitable cases not othenvise provided for by the Constitution. It is implicit in the reserve power that it cannot be exhaustively defined, but decided cases do not permit interference unless \"by disregard to the forms of legal process or some violation of the principles of natural\n\n(0 [1961] 3 S. C.R. 120.\n\n(2) (1934) L.R. 61 I.A. 398.\n\n(3) Cr. A. No. 130of1968 decided on Feb. 3, 1961.\n\n(4) A.I.R. 1968 S.C. 1390.\n\nMAN'SOOR v. MADHYA PRADESH (Dua, J.)\n\njustice or otherwise, substantial and grave injustice has been done\".\n\nThough Art. 136 is couched in widest terms, the practice of this Court is not to interfere on questions of fact except in exceptional cases when the finding is such that it shocks the conscience of the court.\n\nIn the present case, the High Court has not contravened any of the principles laid down in Sheo Swarup's case (') and bas also given reasons which led it to hold that the acquittal was not justified. In the circumstances, no case has been made out for our not accepting the said findings.\"\n\nIn the present case we further find that Mahmood. who was convicted on appeal against acquittal has since served out his sentence and is no longer in jail. The counsel contended that if Mahmood's conviction were to be set aside then there would be no justification for applying ss. 148 and 149 l.P.C. We are not persuaded to hold that the judgment of the High Court suffers from any such grave or serious error as would justify our interference with the order conviCting Mahmood.\n\nThe High Court considered the evidence and came to its own conclusion.\n\nNo legal error suggesting miscarriage of justice has been pointed out by the learned counsel.\n\nThe conviction of the present appellants, it may be pointed out, is also under s. 302 read with s. 34 I.P.C. and this conviction would, iu any event, be un assailable even though s. 148 I.P.C. is not attracted. We, however, do not accept the contention that Mahmood was wrongly convicted and s. 148 I.P.C. is not attracted.\n\nFinally the counsel laid stress on the submission that the appeal in the High Court was incompetent because the Additional Government Advocate who had presented the appeal was not the Public Prosecutor. The Gazette Notification to which our attention has been drawn shows. that Mr. Dubey, the Additional Government Advocate, was notified as Public Prosecutor for the High Court in respect of the cases arising in the State of Madhya Pradesh.\n\nThe counsel raised an ingenious argument, namely, that Mr. Dubey could not be considered to be a Public Prosecutor for presenting appeals in the High Court against orders of acquittal, because the appeal could not be described as a case, which arose in the High Court in which eventuality alone, he would act as a Public Prosecutor. The argument has merely to be stated to be rejected. The counsel tried to seek support from a decision of this Court reported as Bhimappa Bassappa Bhu Sannavat v. Laxman Shivrayappa Samagouda and others.(') In this decision it was said that the word \"case\" which is not\n\n(I) (1934) L. R. 61I.A.398.\n\n(2) A.l.R. 1970 S.C. 1153.\n\nSUPREME COURT REPORTS\n\n(1971) SUPP. S.C.R.\n\ndefined. by the Code of Criminal Procedure is well understood in legal circles and it ordinarily means a proceeding for the prosecution of a person alleged to have committed an offence.\n\nIt was added that in other contexts this word may represent other kinds of proceedings. But in the context of s. 417(3) the Court said it must mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person.\n\nIf ianything, this decision goes against the appellants' contention.\n\nThe case resulting in the acquittal of the accused persons would deary be a case arising in the State and within the contemplation of the notification, and the Additional Government Advocate who is the Public Prosecutor for the High Court would be entitled' to present the appeal in such a case. Reading s. 4(l)(i) Cr. P.C., which defines \"Public Prosecutor\" together with s. 492 Cr. P.C. under which the State Government is empowered to appoint Public Prosecutors. the Additional Government Advocate when appointed as a Public Prosecutor for the High Court in respect of the cases arising in the State of Madhya Pradesh must, in our opinion, be held to be a Public Prosecutor lawfully empowered to present the appeals in the High Court against orders of acquittal. The Privy Council decision reported as BhagwanDas\n\nv. The King(') cited by Shri Sarin also goes against his contention. rt is further note-worthy that this objection was not raised in the High Court. We are, therefore, unable to sustain the submission that the appeal against the order of acquittal wa~ filed in the High Court by an unauthorised person.\n\nThe appeal on behalf of the accused persons mnst, therefore. fail.\n\nMr. Shroff rightly did not press the appeal against acquittal of the five accused persons, which was based on the concurrent order by both the courts below. In regard to Mahmood also, who having served ont his sentence hs already been released, be did not seriously press his appeal fof enhancement of sentences.\n\nOtherwise too, in regard to the prayer for enhancement of the sentences, we do not find any cogent grounds for differing with the order of the High Court.\n\nIn the final result, both the appeals fail and are dismissed.\n\nG. C.\n\nAppeals dismissed.\n\n(I) A.I.R. 1949 P.C. 263.", "total_entities": 70, "entities": [{"text": "MANSOOR & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "MANSOOR & ORS", "offset_not_found": false}}, {"text": "STATE OF MADHYA PRADESH", "label": "RESPONDENT", "start_char": 16, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 55, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "I.D. 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"end_char": 6664, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 148", "label": "PROVISION", "start_char": 7256, "end_char": 7262, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 7275, "end_char": 7281, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7286, "end_char": 7291, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 7428, "end_char": 7434, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7438, "end_char": 7443, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 324", "label": "PROVISION", "start_char": 7523, "end_char": 7529, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7535, "end_char": 7540, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 7707, "end_char": 7713, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7719, "end_char": 7724, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 7727, "end_char": 7733, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7738, "end_char": 7743, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 148", "label": "PROVISION", "start_char": 7749, "end_char": 7755, "source": "regex", "metadata": {"linked_statute_text": 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true}}, {"text": "S. 302", "label": "PROVISION", "start_char": 8264, "end_char": 8270, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Ss. 34 and 149", "label": "PROVISION", "start_char": 8281, "end_char": 8295, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 8296, "end_char": 8301, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 8745, "end_char": 8753, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 15726, "end_char": 15734, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 107", "label": "PROVISION", "start_char": 17142, "end_char": 17148, "source": "regex", 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NARAYANA MURTHY & ORS. ETC.\n\nSTATE OF ANDHRA PRADESH ETC.\n\nMay 6, 1971 IS. M. SnCRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM, B\n\nI. D. DUA AND V. BHARGAVA, JJ.J\n\nJ'., d11cr1tio11af /11.rtir11rions-Raili11g agr of retire111enf of tcachers-Refixing ; t at lower age-Validity-Whether violative of Ans. 14 and 16 of Const; tf(fion.\n\nThe retirement age of teachers in the service of the Andhra Pradesh\n\novernmcnt. Zilla Parishads. Panchavat Samitis and Municipalities was fix- ed at 55 years till 1964 when Govern.meal raised the age o.f superannuation to 58 years.\n\nIn 196(1 the age was raised to 60 years, but, on Nove1nbi.:r 3,\n\n1967. Governn1ent issued a G.0. cancelling with etfecl fro111 November 30, 1967, the' two earlier G.Os. extending the age of retirement; 1nd corresponding changes were made in the rules relating to teachers in the service of Zilla Parishads, Panchayat San1itis and !vlunicipalities.\n\nSome teachers challenged the G.0. dated November 3, 1967 and the High Court, holding that the teachers whose term had already been extended had a vested right to continue, directed the State Government not to give effect to the G. 0. and the consequential rules as against such teachers.\n\nIn pursuance of 'the judgment of the High Court Govrnrnent issued a memorandum dated November 8, 1968, giving effect to the directions of the High Court and also providing that teachers who had attained the age\n\nof 55 years after November 30, 1967, should be dealt with under the G.0. dated 3rd November, 1967, and should be retired on attaining the age of 55 years.\n\nThe petitioners challenged the memorandum on the ground !hat by not extending the benefit of the judgn1ent of the High Court to them, and by fixing November 30, 1967, as the date for determining who should retire, Government acted arbitrarily and violated the equality rule en1bo- died in Arts. 14 and 16 of the Constitution.\n\nHELD: (l) It was open to the Government to reduce the age of retire~ ment without exposing such reduction to any constitutional infirmity, Fixing November 30, 1967, as the date for the classification of teachers who should retire at the age of 55 years could not be considered irrational or unreasonable. The object of raising the retirement age was to solve the problem of the dearth of qualified teachers because of the opening of new -schools and the need for maximum utilisation of trained intelligensia. As soon as the dearth of qualified teachers disappeared Government restored the retiring age to 55 years.\n\n[748F, 750C]\n\n(2) If the Government order dated November 3, 1967, was valid then the petitioners had to retire at the age of 55 years notwithstanding the fact that after their initial employment the retirement age was raised first to 58 years and then to 60 years, because, those intermediary orders had been cancelled by the G.O. dated November 3, 1967, before the earlier >Government orders became operative by actually retaining in service the\n\npresent petitioners after their superannuation under the earlier rule. The\n\n]!'\n\nother employees were given benefit pursuant to the order of th~ High.\n\nCourt which had since become final.\n\nMerely because by some subsequent_ orders the extended date of retirement was accepted in respect of thoseemployees it would not entitle, by itself, the present petitioner.;; to claim similar extension of age of retirement. The directions given by the High Court provide a valid differentia and the ,, etitioners could not claim to be equated with those employees who had been given such benefit. [748G-\n\n749C]\n\n(3) It could not be said that the Government having accepted the judg. n1ent of the High Court, the earlier orders increasing the age of com-· pulsory retirement must automatically be held to be revived. The Government only gave the benefit of the decision of the High Court to those em ployees whose cases were covered by the principle laid down by the High <; ourt.\n\n[749H ; 750B]\n\n(4) Fundamental rule 56(a) does not govern the teachers employed by the Municipalities, Zilla Parishads and Panchayat Samitis.\n\n[751AJ\n\n(5) The submission that the rules applicable to the teachers employed by such bodies were intended to be in conformity with the fundamental rule is of no avail to the petitioners because those rule& could not be con• sidered to have been automatically modified as a result of any amendment in the fundamental rule 56(a}, when there is no consequent modification of the rules governing teachers employed in such bodies. [75lB]\n\nORIGINAL JURISDICTION: Writ Petitions Nos. 144, 216, 217,. 221, 223, 242, 247 to 249, 308 and 324 of 1970.\n\nPetition under Article 32 of the Constiution of India for the- E enforcement of fundamental rights.\n\nL. M. Singhvi, Kanta Rao and K. Rajendra Chaudhuri, for the petitioners (in W. P. No. 144/1970.).\n\nB. Kanta Rao and K. Rajendra Chaudhuri, for the petitioners (in W. P. No. 21 of 1970).\n\nF M. C. Chag/a, S. S. Shukla and B. Kanta Rao; for the petitioners (in W. P. No. 249 of 1970). ·\n\nS. S. Shukla and B. Kanta Rao, for the petitioners (in W. P.\n\nNos. 216, 248 and 324 of 1970).\n\nSarjoo Prasad and A. Subba Rao. for the petitioners (in W. p, G No. 217 of 1970).\n\nA. Subbh Rao, for the petitioners (in W. P. No. 247 /1970}\n\nK. Jayaram, for the p@titioners (in W. P. Nos. 223 and 242' of 1970).\n\nB. Kanta Rao and G. Narasimhulu, for the petitioner (iIL H W. P. No. 308 of 1970).\n\nP. Ram Reddy and A. V. V. Nair, for respondents No. t W. P. Nos. 144, 216, 217, 221, 223, 242, 247, 248 and 249 of 1970.\n\nB. N. MURTHY v. A. P. STATE (Dua, J.)\n\nP. Ram Reddy and P. Parameswara Rao, for respondent Nos. 6 and 28 (in W. P. No. 217 vf 1970), respondents Nos. 4 and 10 (in W. P. No. 223 /70), respondents Nos. 84, 38, 52, 83 \".nd 120\n\n(in W. P. No. 247/1970), respondent No. 2 (in W. P. \\lo. 248).\n\nThe Judgment of the Court was delivered by\n\nDua, J.-This batch of writ petitions raise common questi<; ms of fact and law and have, there.fore, been heard together ood are being disposed of by a common judgment. As the salient features of all the writ petitions are similar in essential particulMS, we may, for understanding the nature of the controversy, only refer to the facts of writ Petition No. 217 of 1970 (B. V. Subhaiah & Ors v. State of Andhra Pradesh & Ors.), because Shri Sarjoo Prasad who led the arguments on behalf of the petitioners addressed us by reference to this writ petition as illustrative of the common controversy.\n\nWrit Petition No. 217 of 1970 has been presented in this Court by 387 teachers under Art. 32 of the Constitution praying for a writ in the nature of mandamus or order or direction restraining the respondents from giving effect to, (i) the orders, G. 0. Ms. No. 2219 dated November 3, 1967, read with Government of Andhra Pradesh Memo No. 6573 dated Noveinber 8, 1968 and G. 0. Ms. No. 1321 dated June 17, 1969, (ii) the substituted r. 14 of the Rules made under the Andhra Pradesh Muni- CiP, alities Act, and (iii) the substituted r. 16 of the Rules made under the Panchayat Samitis and Zilla Parishads Act. A declaration is also claimed to the effect that order No. G. 0. Ms. No. 2219 dated November 3, 1967 read with Government Memo No. 6573 dated November 8, 1968 and G. 0. Ms. No. 1321 dated June 17, 1969, Note 2 of the FundamentaL Rule 56(a) and the Rules made under the Andhra Municipalities Act and Andhra Pradesh Panchayat Samitis Zilla Parishads Act are illegal and unconstitutional and for a further declaration that the rules laid down in G. 0. Ms. No. 3099 dated November 30,. 1964 and No. 1596 dated June 26, 1966 are applicable to the petitioners subject to the conditions stipulated in those orders.\n\nThese petitioners claim/to be working as permanent teachers in. the service of Zilla Parishads, Panchayat Samitis and Municipalities for the last 25 or .30 years. According to their a.verments, the retirement age for the teachers in the service of the Andhra Pradesh Government, Zilla Parishads, Panchayat Samitis ood the . Municipalities is fixed at 55 years. Under F. R. 56(a) and the Subsidiary Rules of. the Andhra. Pradesh Government 1962, a government servant may however be retained in service after completing 55 years with the sanction of the Government and in\n\nSUPREME COURT REPORTS [1971) Sl:PP. S.C.R.\n\nA special circumstances he may even be retained in service after 60 years.\n\nRule 14 of the Establishment Rules made under the Andhra Pradesh Municipalities Act, 1959, and r. 16 of the Rules made under the Andhra Pradesh Zilla Parishads and Panchaya.t Samitis Act, 1959. also fix the age of retirement at 55 years for the employees of these bodies.\n\nThe Fundamental Rule provi- B ding for extension of the age of retirement with the sanction of the Government on public ground was also claimed in the petition to be applicable to the employees under the Municipalities, Zilla Parishads and Panchaya, t Samitis, though at the hearing no serious attempt was made to substantiate this avcrm.ent, or to 'how it advances their cae. c\n\nOn November 20, 1964, the Government of Andhra Pradesh issued G. 0. Ms. No. 3099 raising the age of superannuation to 58 years subject to medical fitness and satisfactory work a, nd conduct in respect of the Head-Masters and teaching staff in Government service and also in the institutions under the Zilla Parishads and Panchayat Samitis and Municipalities.\n\nOn June 28, 1966. the Education Department of Andhra Pradesh issued G. 0. Ms: No. 1596 raising the age of retirement to 60 years subject to certain conditions. On August 26, 1966, a clarification was issued whereby extension of service upto 60 years was sta.ted to be subject to only two conditions, r:amely, medical fitness and satisfactory work and conduct. On November 3, 1967 the Government of Andhra Pradesh issued G. 0. Ms. No. 2219 cancelling with effect from November 30, 1967, the earlier Government orders extending the age of retirement of teachers, first from 55 .lo 58 and then from 58 to 60 years. This order also contained a direction for making suitable rules under the Panchayat Samitis and Municipalities Act sepa.rately. by the Panchayat Raj and\n\nHealth, Housing and Municipal Administration Departments so . as to give effect to the Government's decision. It was howeve.r provided in this order that the teachers affected thereby would be continued in service till the end of the academic year 1967-68 in order to ensure continuity in the academic teaching.\n\nOn November 16, 1967, new r. 16 was substituted for old r. 16 by means of which the age of superannuation of officers and svants of Panchayat Samits and Zilla Parishads was reduced to 55 years. ·\n\nOn November 20, 1967, new r. 14 was substituted for the old r. 14, similarly reducing the retirement age to 55 years, in respect of the employees of the establishments under the Municipalities.\n\nOn March 14, 1968, Funda-mental Rules 56(a) was amended by the Governor under Art. 309 of the Constitution by adding to it Note 2, according to which a government servant retained in service after the date of compulsory retirement could be retired at any time without notice and without assigning any reason.\n\nIt appears that some teachers, other than the present petitioners, feeling aggrieved by these orders approached the Andhra Pradesh High Court for relief under Art. 226 of the Constitution.\n\nOn April 16, 1968, Chinnappa Reddy, J., allowed those writ petitions and directed the Andhra Pradesh Government not to give effect to G. 0. Ms. No. 2219 dated November 3, 1967, and the 31mendment to the Fundamental Rule and the Rules under the Municipalities Act, Panchayat Samitis and Zilla Parishads Act, insofar as they affected the rights of the petitioners in those petitions.\n\nAnother batch of teachers employed by the Zilla Parishads, Panchayat Samitis and the Municipalities, other than the present petitioners, along with a few teachers employed by private esta-blishments also applied to that High Court under Art. 226 of the Constitution with similar grievance.\n\nThose writ petitions were disposed of by the same learned Judge on August 7, 1968.\n\nThe State in those cases tried, without success, to get over the earlier judgment in the case of the teachers by relying on the 1lecision of the Supreme Court in B. S. Vadera v. Union of India & Ors.(') which upheld the validity of retrospective operation of Rules made under Art. 309 of the Constitution.\n\nOn appeal from the earlier judgment of the learned Single Judge, a Division Bench of the Andhra Pradesh High Court on April 14, 1969, agreed with the single bench in holding that the cancellation of the extension of the service of the writ petitioners\n\nby the impugned orders was inoperative. In the meantime, in pursu- E ance of the judgment of the learned Single Judge the Government had on November 8, 1968, issued a Government Memo providing as under :\n\n\"I. Teachers employed by Municipalities, Zilla Parishad and Panchayat Samithis.\n\nla) Teachers whose services have been extended up to the age of 60 years by specific individual orders should be retained in service until they atta-in that age.\n\n(b) Teachers who attained the age of 55 years before 30-11-1967 and in whose favour there are specific individual orders extending their services up to 58 years 'Should be retained in service until they attain the age of 58 years and therea.fter their cases for further extension up to the age of 60 years should be considered by the competent authorities in accordance with the G. 0. Ms.\n\n3099 Edn. dated 20-11-1964 and G. 0. Ms. No. 1596 Edn. dated 28-6-1966.\n\n(l) W.P.No. 96of1967 de H ferred to as the plaintiff, a Foot Constable, filed a suit in the Court\n\n48-1 S.C. lndia/71\n\nSUPREME COURT REPORTS\n\n(1971] SUPP.S.C.R\n\nof Sub-Judge I st Oass, Delhi, challenging his dismissal from service by an order da.ted 25th October, 1960. This order was passed by Shri M. K. Saxena, Superintendent of Police (Traffic), Delhi.\n\nIt was alleged by the plaintiff that this order was bad and illegal on various grounds.\n\nTwo grounds , may be mentioned here : (!) ThBlt Shri M. K. Saxena, Superintendent of Police (Traffic), Delhi was not a District Superintendent of Police; (2) That the mandatory provisions of Punjab Police Rule 16.38 had been violated inasmuch as no information was given to the District Magistrate as laid down in the Punjab Police Rule 16.38(1) and the District Magistrate never decided whether the preliminary investigation was to be conducted by the police or by a selected Magistrate !st Qass.\n\nIt was further alleged that even the provisions of sub-Rule\n\n(2) of Rule 16.38 were not observed. The learned Sub-Judge decreed the suit and gave a• declaration that the dismissal of the plantiff was void. A decree for Rs. 1151/- was passed in favour of the Foot Constable.\n\nAmong other issues framed, the following issues may be noticed :\n\n(!) Whether the Superintendent of Police (Traffic) was not competent to pass the impugned order as alleged?\n\n(2) Whether the provisions of Rules 16.38 and 16.24 of the Punjab Police Rules were complied with by the defenda0nt ? If not, to what effect ?\n\nThe learned Sub-Judge held and decided issue No. 1 against the Government and held the order of dismissal to be vitiated.\n\nRegarding issue No. 2, however, he held that there was a complete compliance of Rule 16.24. He further held that even as regards Rule 16.38, the necessary permission of the District Magistrate, Delhi for taking the departmental action aga-inst the plaintiff was obtained from the District Magistrate vide Ex. P.9A.\n\nThe Government filed an appeal and the Additional Dist- Jict Judge dismissed the a.ppeal.\n\nThe Government then filed an appeal before the High Court.\n\nMehar Singh., J. following an earlier decision('\\ \"f the Division Bench of that Court dated March 4, 1964 held that Mr. M. K. • Saxena, Superintendent of Police (Traffic), Delhi, was not competent to dismiss the plaintiff.\n\nThe learned Judge did not give leave to file Letters Patent Appeal and the Government having obtained Special Leave, the appeal is now before us.\n\nThe first issue is now concluded against the plaintiff by a , decision of this Court in the case Union of India v. lagjit Singh ('). However, the appeal must fail on the ground that the\n\n(!) Union ofln1ia v. RMI Kilhan-Rogu'ar Second Appeal No. 258-D of 1962.\n\n(2) [1970] l S.C.R. 163, 168.\n\nU'l!ON v. RAM KISHAN (Sikri, C.J.)\n\nprovisions of Rule 16.38 were not complied with in this case.\n\nIn a similar case Delhi Admn. v. Chanan Shah (') this Court observed :\n\n\"It is not necessary to decide in this case whether the provisions of Rule 16.38 of the Punjab Police Rules are maindatory or directory. Even assuming that the rule is directory we find that there has been no substantial compliance with its provisions. The complaint fell within rule 16.38, and it was for the District Magistrate to decide who should investigate the case. No investigation of any kind was made under his directions.\n\nWithout obtaining his directions, the Superintendent of Police held an inquiry and passed an order of censure.\n\nThe order was set aside by the Deputy Inspector-General.\n\nThereafter by D. 0. letter No. 2165-C. the Superintendent of Police, asked for the sanction of the District Magistraite to proceed departmentally. Even at this stage, the District Magistrate was not informed that the Superintendent of Police held an inquiry and passed an order of censure and that his order was set aside by the Deputy Inspector-General. The inquiry held by the Superintendent of Police wa\"' not authorised by the District Magistrate nor did it receive his approval.\n\nThe District Magistrate gave his sanction without recording any reasons and without applying his mind to the requirement of r. 16.38. In the circumstances, we are constrained to hold thait the departmental action taken against the respondent is invalid.\"\n\nIn this case the permission relied on by the Government is in following terms :\n\n\"MEMO\n\nReferring your memorandum No. 4425 /T dated the 8th February, 1960 on the subject noted above.\n\nI agree to departmental action being taken against F. C. Ram Kishan No. 4494.\"\n\nWe may hare reproduce relevant part of Rule 16.38;\n\n\"16.38. (1). Immediate information shall be given to the District Magistrate of any complaint received by\n\n(1) [1969] 3 S.C.11,. 658.\n\nSUPREME COUR.T REPORTS [1971) SUPP. s.c.a.\n\nthe Superintendent of Police, which indicates the commission by a police officer of a criminal offence in con nection with his official relations with the public. The District !Magistrate will decide whether the investiga,. tion of the complaint shall be conducted by a police officer, or made over to a selected Magistrate having 1st class powers.\n\n(2). When investigation of such a complait establishes a pn'ma facie case, a judicial prosecution shali normally follow ; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded.\n\nWhen it is decided to proceed de partmentally the procedure prescribed in rule 16.24 shall be followed.\n\nAn officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.\"\n\nIn the present case no immediate information was given to the District Magistrate in respect of the complaint received against the plaintiff nor did the District Magistrate decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers. It is true that the District Magistrate purported to give permission under sub-Rule 2 of Rule 16.38 but as the Jst part of the Rule was not complied with at all the departmel!tal\n\ninquiry is vitiated and the order of dismissal must be declared illegal. In the result we dismiss the appeal with costs.\n\nK.B.N.\n\nAppeal dismissed.", "total_entities": 8, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 5, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "RAM KISHAN", "label": "RESPONDENT", "start_char": 21, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "RAM KISHAN", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 46, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 66, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "MOHAN REDDY", "label": "JUDGE", "start_char": 111, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "I. D DUA, JJ.", "label": "JUDGE", "start_char": 127, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Punjab Police Rules", "label": "STATUTE", "start_char": 143, "end_char": 162, "source": "regex", "metadata": {}}, {"text": "Punjab Police Rule", "label": "STATUTE", "start_char": 573, "end_char": 591, "source": "regex", "metadata": {}}]} {"document_id": "1971_1_757_760_EN", "year": 1971, "text": "UNION OF INDIA\n\nRAM KISH.AN\n\nMay 7, 1971\n\n. IS. M. SiKiu, C. J., G. K. MrrrER, C. A. \\I' AIDIALINGAM, P. J AGAN- 8 .\n\nMOHAN REDDY AND I. D. DUA, JJ.)\n\nl'tMtlab Police Rules, r. 16.3S-Police Officer in plain c/athes cammittisg ot/£nct! while raiding a p/~Failure ta give in/armation ta District\n\nMQ/IUlral~Yalidity of departmental inquiry and dismissal af.police officer.\n\n .\n\nThe respondent, a. police constable, raided a place, and in the course el. lbe raid caused a knife injury to one of th• persons ill the place. Ho -t to the aceno of occurrence without his uniform. A caso under s. 324, LP.C., wu registered agaiDst him. A departmental inquiry was also ordr.red ap.inst him and he was dismissed from service. He filed a sui~ challent!- ilol the order of dismissal on tho ground, inter alia, that the procedure preocribed by the r. 16. 38 of the Punjab Police Rules was not followed.\n\nThe High Court, in appeal, decreed the suit.\n\nIn appeal to this Court,\n\nHELD: The plaintiff was purporting to exercise the authority of a police officer even if he was in plain clothes. The acts alleged against him constituted a criminal offence in connection with his official relation with the public and their description in the charge in the departmental proceed- E ings as negligence was an atten1pt to avoid the effect of r. 16.38. Under sul>-r .. (1) of the rule immediate information regarding the commission of the offence sbold have been given to the District Magistrate.\n\nIn the present case there was no evidence of any such infortnation being given to the District Magistrate, nor was there evidence that tho District Magistrate decided that the investigation shall be conducted by P die police officers who conducted it. Since there was a breach of sub-r. (I) of the rule the order of dismissal was illegal. (759B-H, 760H]\n\nDelhi Administration v. Chanan Shah, [1969] 3 S.C.R. 653 followed.\n\nOVIL APPELLATE JURISDICTION : Civil Appeal No. 750 of 1966.\n\nAppeal by special leave from judgment and order dated March 4, 1964 of the Punjab High Court, Circuit Bench, Delhi io. C.R.S.A. No. 256-D of 1962.\n\nJagadish Swarup, Solicitor-General, and R. N. Sachthcy, for the appellant\n\nN. D. Bali and D. D. Shmma. for the respondent.\n\nJi'\n\nWPREMB COURT REPORTS [1971] SUPP. s.c.R.\n\nThe Judgment of the Court was delivered by\n\nSikri, C.J.-The respondent, Ram Kishan, Head Constable, (hereinafter referred to as the Plantiff) failed a suit challenging the order of dismissal passed against him on 3rd September, 1957 by Shri D. C. Sharma, Superintendent. of Police (CentraD.\n\nThe main attack was twofold.\n\nFirst it was alleged that Shri D. C. Sharma was not a District Superintendent of Police and, therefore not entitled to dismiss the plaintiff.. Secondly it was alleged that as the procedure. prescribed by Rule 16.38 of the Punjab Police Rules was not followed, the departmental action taken against the plaintiff was illegal.\n\nThe version of the plaintiff as to what happened on 22nd June, 1957 was this.\n\nOn 22nd June, 1957 he was on duty \"for prevention of crime and while on his round he received information that some gamblers were gambling in a public place on Rouse Avenue. Consequently, he organised a raiding party.\n\nThe gamblers, who were Harijans, out-numbered the police party and inflicted some injuries on the members of the party. Fearing that they would be hauled up, they approached !II Harijan member of the Corporation as well as a Harijan Member of the Parliament, who telephoned to the plaintiff's officers, at the police station, before the plaintiff reached the police station from the scene of affray in order to lodge his report.\n\nThe version of the Government was that the plantiff was deputed for the checking of cycle theft duty near Employment Exchange, Darya Gunj and he had not been posted at Rouse Avenue, Harding Bridge.\n\nIt was denied that the plaintiff received any information regarding gambling at a public place in Rouse Avenue. On the contrary it was alleged on behalf of the Government that the plaintiff alongwith other constables wanted to implicate Mohan Lal, Nathu etc., and a scuffle took place between the plaintiff and his other associates on the one hand and Mohan Lal and others on the other hand.\n\nThe Sub-Judge dismissed the suit.\n\nThe plaiintiff filed an appeal before the Additional District Judge, who accepted the appeal and granted the plaintiff a decree for a declaration that the order dated 3rd September, 1957 dismissing him from service is illegal and ultra vires. He also passed a decree for Rs. 1926/10/· on account of pay and allowances.\n\nThe Government filed an appeal in the High Court. The case came up before Mahajan J., who observed that there was a breach of Rule 16.38 of the Punjab Police Rules but as it was\n\nUNION v. RAM Kll!HAN (Sikri, C.J.)\n\ncontended that the Police Rule 16.38 was directory and not mand&tory, he referred the case to a Division Bench.\n\nMchar Singh J. speaking for the Bench held that \"in view of Babu Ram Upadhya's (') case this rule must be held to be mandatory, though even otherwise, on the language of the rule itself I am of the opinion that it is a rule moodatory in nature\".\n\nHe further observed that \"In this case it is an admitted fact that there was no reference of the information to the District Magistrate and he had no opportunity to take a decision first under subrule (!) and then under sub-rule(2).\" He agreed with the first appellate court that the chairge in the statement of allegations was an information indicating the commission by the respondent of a criminal offence in connection with his official relation with the pUblic, as not only B31tto was injured in the incident but also some Foot Constables.\n\nIt was contended before us that the first part of the rule 16.38 does not apply because the plaintiff went to the scene of occurrence without any uniform and that the question of commission of a criminaJ offence by a police officer in connection with his official relations with the public can only arise if he commits the offence when he is in a uniform. It was further urged that before an offence can be said to have been committed by 31 police officer it must be not in exercise of purported authority but real authority. We are unable to see any force in these contentions. On the facts of this case it is quite clear that the plantiff was purporting to exercise authority of a police officer 31nd even if he was in plain clothes it does not mean that he was not purporting to act as 31 police officer.\n\n1n our view, in this case there was a breach of sub-rule (I) of Rule 16.38. D.W. 2, Raghu Nath, admitted that on 22nd June 1957 a case under s. 324 I. P. C. wais registered at the instance of Harijans and that investigation was made by A.l.C.\n\nHori Lal and then S. I. Daulat Ram.\n\nThe allegations against Ram Kishan and others were that they had inflicted a knil:e injury on Mst. Batto, a Harijan womwn and medical report showed that the injury was with a blunt weapon though the injury was simple. He further said that S. P. ordered him to start a departmental inquiry against the plaintiff. There is no evidence that any immediate information was given to the District Magistrate of the complaint Nceived against the plaintiff. Neither is there any evidence that the District Magistrate decided that the investigation shall be conducted by the police officers, who conducted it.\n\n(1) A.l.R. 1961 S.C. 751\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nThe learned counsel for the Government further contended\n\ntht the charge agaiast the .Plantiff in the departmental proceedmgs was a• charge of negbgence and not a charge in connection with the commission of a criminal offence in cIAND v. ZILA P.ARISHAD (Mitter, J.)\n\n1949 with retrospective effect was not possible.\n\nAn argument -similar to tha.t raised by the counsel for the petitioners was raised .and negatived in M. P. V. Sundararamier & Co. v. The State of Andhra Pradesh (1). There it was contended oil. behalf of the assessees that s. 2 of the Sales Tax Laws Va.Jidation Act, 1956 which provided that no law of a State imposing or authorising the , imposition of tax on inter.State sales during the period between April 1, 1951 and September 6, 1955 shall be deemea to be invalid or ever to haive been invalid merely by reason of the fact that sales took place in the course of inter-State trade, did not authorise the initiation of fresh proceedings for the imposition but only validated levies already made. Rejecting this conten- :tion it was obseryed (see p. 1460) :\n\n\"What is maiterial to observe is that the power conferred on Parliament under Art. 286(2) is a legislative power, and such a : power conferred on a Sovereign Legislature carries with it authority to enact a law either prospectively or restrospectively, unless there can be found in the Constitution itself ai limitation on that power.\"\n\n; and at p. 1461 :\n\n\"While a law prohibiting transfers (the subject matter of the appeal before the Privy Council in Punjab\n\nProvince v. \"Dau/at Singh-13 I. A. 59) must be pros- E pective, a law autliorising imposition of tax need not be.\n\nIt c&n be both prospective and retrospective.\"·\n\nJt necessarily follows that if the Act of 1949 was valid the impoiition was saved even after 1950 under the proviso to cl. (2) of Art. 276 of the Constitution.\n\nIt was next argued that the rules framed under the District Boards Act became inconsistent with and unworkable under the U.P. Zita Parishads Act. It was said that under rule 3 framed by the Local Self Government of the U. P. under s. 172 of the Act of 1922 the tax was to be assessed by an assessing officer appointed by the District Board with the help of the members of the cirde. As under the Zila Parishad Act there were no circle or members, the old rule was said to have becoine unworkable.\n\nIn our view this argument has no force. The assessment was to be done by the assessing officer appointed by the District Board.\n\nEven if there was a circle but the members of the circle refused to cooperate with him, the assessment would not be invalid. After all the help which they could render would only be limited to\n\n(1) [19S8] S. C.R. 1422.\n\nSUPREME COURT REPORTS\n\n(1971] SUPP.S.C.R.\n\ngiving information about the assessees. It was quite competent for the assessing officer to proceed with the assessment even if the members refused to help him. The situation was not altered by reason of the fact that the circle and the members had disappeared.\n\nThe next argument of counsel that the time schedule mentioned in rules 4 and 5 in the notification of January 28 not having been ata. which was the price demanded by Mr. Gupta for the booklet Thereafter Mr. Gupta was made to leave the asSociation premises.\" An affidavit was also filed by Shri 0. N. Mahindroo. It Is stated in the alfidavit :\n\nSUPREME COURT REPORTS [1971) SUPP. s.c.R.\n\n\"I have read the Affidavit of Mr. B. P. Singh, Advocate, and I confirm what has been stated in paras. 2 and 3 of his affidavit about Mr. 0. P. Gupta and me. I did pay him a Rupee as desired by Mr. Gupta foc a copy of the booklet as stated in para. 3 of the said affidavit.\"\n\nThis petition was called for hearing on November 23, 1!170, and upon hearing Mr. C. K. Daphtary, one of. the petitioners, the Court directed issue of notice of this petition to the respondents returnable IO days hence, peremptorily. The office reported on December 3, 1970, that \"neither the Registered Cover nor A.D.\n\nCard in respect of notice issued directly to Respondent No. l, viz. Shri 0. P. Gupta has been received back so far. Similarly no report in respect of Respondent No. 1 has been received from the District Judge, Allahabad.\" On December 4, 1970, this Court directed that another notice be sent to respondents Nos. 1 and 3 returnable on December 9, 1970. It was further directed that notice be sent to respondent No. I at his Delhi address also, returnable on December 9, 1970. The notices were also directed to be served through the District Magistrates. It may be mentioned that respondent No. 2 Wa6 present in Court and had filed an affidavit to which we shall later refer.\n\nThe Sub-Divisional Magistrate, Delhi, returned the notice in respect of 0. P. Gupta, unserved, with the following report :\n\n\"The wife of the addressee, viz.. Mrs. Mithles Kumari, who was prese11t at the address given in the notice, has stated that her husband had gone out to Poona.\n\nShe had no knowledge about the return of her husband.\n\nShe did not inform us about !tis address at Poona.\n\nOn enquiries being made from Shri Baij Nath Kureel, resident of 69, South Avenue (M. P. flats) he stated that. he (Mr. Gupta) comes and stays with him as a guest, off and on, and he goes back.\n\nMr. 0. P. Gupta is deliberately concealing himself and is avoiding service of the notice.\n\nTherefore, the notice is being returned unserved.\n\nThe writing of Mr.\n\n0. P. Gupta's wife is enclosed.\"\n\nAs regards the notice sent to 0. P. Gupta, through the District Magistrate, Allahabad, the Additional District Magisrate who was contacted on Trunk telephone by the Office on December 8, 1970, reported that Gupta was stated to be in Delhi and was staying at 69, South Avenue. The District Judge of Allahaba4 and Barabanki reported that notices could not be served on O. P.\n\nGupta a~ he Wa6 reported to be in Delhi in connection with some case.\n\nC. K. DAPHTARY V. GUPTA (Sikri, J.)\n\nOn being satisfied on materials before it that respondent No.\n\nI was deliberately avoiding service, the Court on December 9, 1970, difected issue of nonbai!able warrant for the arrest of respondent No. I (wherever he may be in India) and his production in this Court on Monday, the 14th December, 1970.\n\nThe Additional District Magistraite, Delhi, thereupon submitted the following reports:\n\n\"The local police has informed us that despite be.st of L'ieir efforts they have not been able to arrest Shri 0. P.\n\nGupta whose where-abouts in Delhi aA'e not known. However we are making further efforts to find out his whereabouts and will be abfo to send you a final report on Sunday evening.\n\nYou may kindly inform their Lordships accordingly.\"\n\nOn December 10, 1970, 0. P. Gupta sent a letter to the Registrar, giving his address \"C/o Station Master, Jagannath Puri (Orissa)\", stating that he had heard a rumour that \"the Hon'ble Court requires my presence in connection with contempt of Court.\" He further stated that he was trying to reach Delhi as soon as possible in about ten days. He requested that the matter may be listed for his appearance any day in January 1971. He gave a• firm undertaking that he would present himself before the Court on the day the Court reopened after winter vacation. On December 14, 1970 this Court ordered that the \"warrant will remain outstanding returnable a day after the reopening of the Court in January 1971, i.e. 5-1-1971\".\n\nOn December 15, 1970, referring to the letter of the respondent, mentioned above, this Court observed that \"the address given on the letter is c/o the Station Master, Jaga.nnatb Puri, Orissa. This clearly shows that he does not want to . disclose his wherabouts so that proper processes may be issued to him ...... In view of this letter, we are further fortified in our view that he is avoiding service and concealing himself. Warrants will be executed as ordered by us.\"\n\nThe office reported again on January 4, 1971 that the authorities had informed that despite their best efforts they had not been able to arrest 0. P. Gupta nor his where-abouts could be found.\n\nRespondent No. I wrote another letter on December 24, 1970, objecting to the issµe of non-bailable warrants. He stated:\n\n\"As written in my previous letter I had planned to reach Delhi by about the 20th instant and to present myself in Court when it reopens on 4th January, 1971 ......\n\nBut the shocking news of a non-bailable warrant has upset all my plans.\"\n\n\nSUPl\\BME COVRT l\\El'ORTS [1971] SUPP. s.c.Jl •.\n\nHe further stated that he had thus no alternative l>ut to go hack;. he wa.nted to reach the Court as a free man and before appearing. in Court he wished to get about two or three weeks time for medical aid. He, therefore, prayed that the warrant be withdrawn and the case fixed for Monday, the !st February. 1971.\n\nOn January 5, 1971, this Court ordered tlrat \"warrants be executed as already directed by this Court. District Magistrates of Allahabad, Delhi and Barnbanki should take immediate action with the assistance of the Police, to execute the warrants.\"\n\nOn January 25, 1971, at last 0. P. Gupta appeared before the Court, and this Court ordered th3t the \"warrant which was ordered to be issued against respondent No. I will not be executed on condition that he shall furnish a personal bond in tlte sum of Rs. 5,000 /-with a surety in the like amount to the satisfaction of the Registrar of this Court. Respondent No. I will file affidavit io reply within a week from today. Liberty to the petitioners to file a rejoinder, if any. The Petiton will come up for hearing on the 12th Fsbruary, 197_!.\"\n\nOn January 28, 1971, respondent No. I filed an application alleging that the petition for contempt was not maintainable and deserved to be dismissed without the applicant being called upon to answer it on merits. He stated various grounds regarding the non-maintainability of the petition. On February 12, 1971, the Court adjourned the matter to February 18, 1971, and respondent No. I 'Yas directed to file an affidavit on merits by February 16, 1971, which, however, he failed to do.\n\nOn February 22, 1971, respondent moved another application praying that the hearing of the case may be postponed because he wanted to engage a counsel and counsel whom he wished ta engage (M/s R. D. Bhandare, Mohan Kumaramangalam, K. K.\n\nNayar, D. L. Sen, etc.) were parliamentarians and they were extremly busy in their elections and could not come to Delhi before the middle of March, 1971.\n\nWe have given these facts iii order to show that respondent No. I was deliberately avoiding service for a long time. We could not at first understand his object in doing so, but during the course of arguments the object became quite clear. Chief Jutice Shah was '1ue to retire on January 21, 1971 and if the respondent had made the affidavit, to which we will presently refer to, before that date, it would have amounted to contempt. When it was pointed out to him during the course of hearing that he had abused Mr. Justice Shah in his affidavit he replied that it was not contempt because it was the law that there could not be any contempt in respect of\n\nC. K. DAPHTARY Y. GUPTA (Sikri, J.)\n\na Judge who has retired. It seems to us clear that in order to hurl fresh abuses on Mr. Justice Shah, he deliberately avoided service of the notice so that he would not have to file his affidavit before the date of retirement of Mr. Justice Shah.\n\nWe are also surprised at the inability of the Executive to have\n\n0. P. Gupta traced and warrants served on him. Article 144 of the Constitution provided that \"a.U authorities, civil and judicial, in the territory of India, shaU act in aid of the Supreme Court.\"\n\nWe have noticed with regret that in this case the Executive has not shown due diligence in complying with this constitutional provision.\n\nRespondent No. I filed another application on February l8, l 971, praying tha.t the arguments on maintainability of the petition be heard first and that question decided. It was further requested that the petitioners be asked to produce all their evidence because he would like to cross-examine them. It was further stated that after the petitioners had closed their evidence, he \"will summon documentairy and oral evidence on his behalf, after which arguments may be heard.\" He requested that the petitioners be asked to produce the \"book\" or the \"pamphlet\" from which they had copied annexure 1 to their petition. It was suggested that it would throw great light on their allegations.\n\nWe may mention that the pamphlet or the booklet woo annexed to the petition in original and we could not understand this prayer.\n\nThis Court directed that the petition would be heard on the affidavits already filed by the parties. This Court also informed respondent No. 1 that the petitioners had no other evidence to lead.\n\nRespondent No. I filed a lengthy counter affidavit on February 18, 1971. He started with tendering unreserved, unqualified and unconditional apology to this Court. He, however, went on to state that in borderline cases it was permissible to make a.Jternative and additional defence of no contempt also and he therefore proceeded to submit his defence.\n\nIn para 3 of the counter-affidavit he maintadned that because of the many !aches, illegalities and infirmities the petition should be dismissed. In para 3.2 he stated that \"I am not at this stage making any attempt to contradict evidence given or to give any evidence on my side. This will be done if and when the occasion arises or the Hon'ble Court so orders. I will have to summou some documents a.lso for that purpose.\" This statement was made in spite of the direction of this Court that he should file his affidavit on the merits. Until now we have not been told what documents or evidence he would bve called, especially in view of the admissions made by him, which we. will presently refer to.\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nln para 4 he complained that he could not find the SJJccific charge. We had informed him that, in brief, the chage against him was that he had committed contempt of Court by the publication and distribution of the pamphlet or the booklet outside Parliament.\n\nIn para 5 he proceeded to assert that the petition wa~ not bona fide at all. He cast asperisions on Mr. C. K. Daphtary, who is senior advocate of this Court, and the President of the Supreme Court Bar Association. We need not refer to these because this is really an abuse of the process of this Court.\n\nIn para 8, 8.1, 8.2 and 8.3 the respondent complained against the language of the petition not being quite respectful to the Members of Parliament. In para 8.4 he stated that \"as to facts I must frankly admit that the grievous wrong that Shri J. C. Shah had done to me had created such deep anguish, frustration and desperation in me tha, t had God almightly not intervened Shri J. C. Shah would not have seen the end of 1969.\" we wondered what exactly he meant by this passage, but he admitted that it meant that he had at one time decided to murder Mr. Justice Shah. He explaoined that it was some Member of Parliament who saved him from this act by suggesting that he might instead try to convince the Members of Parliament of the genuineness of his cae and prepare them to file an impeachment motion.\n\nIn para 8.5 it was stated that !.~ had a right to approach and convince the Hon'ble Members and he exercised that right. Nobody has said before us that he had no right to approach and convince the Hon'blc Members.\n\nIn para 8.6 and 8.7 he mentioned about the filing of the impeachment motion in the Lok Sabha on May 15, 1970 and its rejection by the Hon'ble Speaker.\n\nIn para 9 he said that \"a large number of Hon'ble Members of Parliament made that draft, in the making of which I too took ao active part and made my contribution.\" He submitted that che \"drafting\" of the motion could not be a charge.\n\nWe may mention that he has not been charged with the drafting of the motion.\n\nRegarding the printing of the pamphlet, he stated in para. 9.2\n\n\"The Impeachment Motion was printed by respon dent No. 2 and I went to him to get it printed.\n\nThe printing was done under orders and at the instance of the signatories of the Motion.\n\nThere were 200 of them\n\nc. K. DAPHTARY V. GUPTA (Sikri, J.)\n\nand they were anxious to have several copies each.\n\nThey had a right to have the copies. lt was impossible for tllem to have the copies without printing the motion. It still possess a letter from Hon'ble Shri George Farnandes asking for six copies which I sent to him by registered post.\"\n\nHe submitted that the printing of the motion could not be a charge against him aind that \"neither the Hon'ble Members who ordered the printing, nor I who got the work actually done, nor respondent 2, who actually printed the motion are in any way guilty of contempt for that action.\n\nWe need not go into this submission as he was not being charged for printing or assisting in the printing of the motion.\n\nIn para 9.3 he contended that the word\" \"pamphlet\" for the printing lmpea-:hment Motion was highly condemnable.\n\nIn para 9.4 he stated that he never offered the book for sale nor did he widely circulate it.\n\nFurther in para 9.5 he stated that the \"book given to Shri 0. N. Mahindroo, from which this annexure must have been copied, was not ai new copy, but was a used one inasmuch as it contained several red pencil marks and pen writing in its body. This shows and proves that it was not given to him by way of sale a-nd it was not being offered for sale in general.\"\n\nIn para 9.6 it was stated that annexure I to the petition was nothing but the Impeachment Montion filed in the Lok Sabha reproduced in a printed book.\n\nIn pua 10 he submitted that para 6 of the petition \"has needlessly dragged in the fair name of Hon'ble Mr. Justice Hegde in the petitioner's wholesale onslaught.\" He submitted: Read the entire Impeachment Motion.\n\nThe name of Hon'ble Mr.\n\nJustice Hegde does not occur even once anywhere either disparagingly or otherwise. I have the greatest regard and respect for His Lordship, just as I have for every other Judge in India.\" He gave reasons why Mr. Justice Hegde's name was not mentioned in the Impeachment Motion, although he had actually delivered the judgment.\n\nIn para 10.l he submitted that \"the very same judgment can lead to the Impeachment of one Judge who signs it know ing that its conclusions are wrong while leaving out com pletely the other Judge who signs it genuinely believing that the conclusions are right.\"\n\nIn parn 10.2 he referred to the petition dated 27-10-69 under Art. 32 of the Contitution to demonstrate his great regard and respect for Mr. Justice Hegde.\n\nSUPRBMB COURT REPORTS [1971] SUPP.S.C.lt.\n\nIn para 10.3 he stated thus :\n\n\"It is entirely wrong to say that the Impeachment Motion \"disparages and brings into contempt the authority of this Hon'ble Court and tends to weaken the confidence of the people in it and in any event has the tendency and object of so doing.\" The Motion was solely aimed against a \"decayed fish\" and its laudable object was to save the \"entire tank\" from contamination, as explained above in para. 9.1.\n\nTherefore, the object of the motion clearly was to save the prestige and honour of the Hon'ble Court and to enhance public confidence in it and not the reverse.\"\n\nIn para 10.4 he submitted that the judgment in question did not excite respect for Mr. Justice Shah.\n\nIn para 10.5 he stated that the Impeachment Motion did not attribute any corruption like bribary, liquor, sex, influence, favouritism, etc. to Mr. Justice Shah.\n\nHe further added:\n\n\"What, however, was a fatal weakness in him, was that he made up his mind m the result of a case either when he read the file at home in a few minutes or within the first few minutes of the opening arguments, and once he made up his mind, he dogmllltically refused to listen even to the most reasonable arguments of the party disfavoured by him.\n\nIn order to shut down the arguments of that party, he would go to the length of talking absurdly and like a mad man in open court.\n\nSuch behaviour made all his virtues useless and made him a man thoroughly unfit to be a judge.\"\n\nWe need not refer to instances he gave of some other Judges and their behaviour in Court.\n\nIn para 10.8 he submitted:\n\n\"The Impeachment Motion ought to be read in this light.\n\nWherever it says \"prejudice\", \"bias\", \"grudge\",. \"vengeance\" etc., everywhere it means the same--that he had formed his opinion and was seeking to stick to it whatever came his way, and the more I tried to make him see reason, the more offended and revengeful he become. \"Extra-judicial considerations\" also means the same, because becoming prejudiced by one sided argument is certainly not judicial.\n\nIn this light the entire Impeachment Motion is nothing but .extremely fair and and just comment on a man who richly deserved it.\n\nThe two illustrations given on the back of the title cover,\n\nc. K. DAPHTARY >.GUPTA (Sikri, J.) 9}\n\nwhich are the gist of the entire impeachment motion, also A. point to this trait of Shri J. C. Shah's character. There is no hint of any other weakness.\n\nEven my letter to Shri C. K. Daphtary, annexure A, clearly points only to this weakness of Shri J. C. Shah. Fair comment is not contempt.\" In para 11 he asserted that excerpts given in para 7 of the B petition, reproduced above, were all correct excerpts from the Impeachment Motion and not from any pamphlet.\n\nHe further submitted that \"they are all true, correct and fair criticism of Shri J. C. Shah as clarified above.''\n\nBefore dealing with the question of maintainability of the petition and other points raised in his application dated January C 28, 1971, we propose to dispose of the point regarding the validity of the existing law relating to contempt of court. The first respondent has urged that the existing law relating to contempt of court by writings in. respect of proceedings which have finished is repugnant to Art. 19(1)(a), read with Art. 19(2). He contends that the existing law imposes unreasonable restrictions on a ]). citizen's right to.freedom of speach guaranteed under Art.(19)(1) (a). He urges that we should follow the law existing in the United States of America. Mr. C. K. Daphtary, on the other hand, contends, first, that Art. 19(1)(a) and Art. 19(2) do not apply to the law relating to contempt of this Court because of Art. 129 of the Constitution, which reads: E\n\n\"The Supreme Court shall be a Court of Record and shall have all the powers of such a court including the powers to punish for contempt of itself.\"\n\nSecondly, Mr. Daphtary urges that the existing Jaw relating to contempt of court is not a 'la.w\" covered by the definition of the word \"law\" in Art. 13(3)(a). Thirdly, Mr. Daphtary contends that the existing law only imposes reasonable restrictions within the mea.ning of Art. 19(2) of the Constitution.\n\nIn Pandit M. S. M. Sharma v. Sri Krishna Sinha(') this Court held:\n\n\"It would not be correct to contend that Art. 19(1)\n\n(a) of the Constitution controlled the la.tter half of Art. 194(3) or of Art. 105(3) of the Constitution and that the powers, privileges and immunities conferred by them must yield to the fundamental right of the citizen under Art. 19(l)(a). As Arts. 194(3) and 105(3) stood in the same supreme position as the provisions of Part III of the Con-\n\n [1969] 2 s.c.R. 779.\n\nC. K. DAPHTARY V. GUPTA; (Sikri, J.) 93'\n\n(3) It is open to anyone to express fair, reasonable and & legitimate criticism of any act or conduct of a judge n his judicial capacity or even to make a proper and farr colnment on any decision given by him because \"justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.\"\n\n(4) A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the Court.\n\nThe test in each case would be whether the impugned publication is a m.ere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by this Court. It is only in the latter case that it will be punishable as Contempt.\n\n(5) Altematvely the test will be whether the wrong is done to the judge personally or it is done to the public.\n\nTo borrow from the language of Mukherjee, J. (as he then was) (Brahma Prakash Sharma' s case)(') the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regairding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court's administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.\"\n\nLater, Hidayatullah, C. J., in R. C. Cooper v. Union of India (') observed :\n\n\"There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism.\n\nThis Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges.\n\nThey do not think themselves in possession of all truth or hold that wherever others differ from them, it is so far error.\n\nNo one is more conscious of his limitations and fallibility than a Judge but because of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others ................ We are constrained to say also that while fair and temperate criticism of this Court or any other Court even if strong, may not be actionable, attributing improper motives, or tendin.11: to\n\no> (1953) s.c.R. 1169.\n\n(2) [1970] 2 s.c.c. 298, 301.\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nbring Judges or courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must and will be taken. Respect is expected not only from those to whom the judgment of the Court is acceptable b.ut also from those to whom it is repugnant. Those who err in their criticism by indulging in vilification of the institution of courts, administration of .justice and the instruments through which the administra.tion acts, should take heed for they will act at their own peril.\n\nWe think this will be enough caution to persons embarking on the path of criticism.\"\n\nWe are unable to appreciate how the la, w, as summarised in the two cases places unreasonable restrictions on the freedom of speach.\n\nBut the argument of the first respondent was that we have now a written constitution, like the United Sta-tes of America, and if in the United States, in order to give effect to the liberty of speech and freedom of expression the common Jaw has been departed from, we should also follow in their footsteps. But the American Constitution and the conditions in the United States are different from those in Indiai. In the American Constitution there is no provision like Art. 19(2) of our Constitution.\n\nThe relevant part of the .first.Amendment to the U. S. Constitution is as follows :-\n\n\"Congress shall make no law ......... abridging the freedom of speech or of, the press.\" The difference between the First Amendment and Art. 19(1)(a) was noted by Douglas J. in Kingsley Corporation v. Regellfs of the University of New York(') where he observed:\n\n\"If we had a provision in our Constitution for \"reasonable\" regulation of the press such as India has included in hers there would be room for argument that censorship in the interest of morality would be permissible.\" (In a footnote he set out Art. 19(2) ).\n\nEven in the United States, as far as we have been able to ascertain, in some States the law is the same as in England (see Re Peter Breen (') Annotation at page 572). We may here quote some passages from the decision of the Nevada Supreme Court in that case. An Attorney had made a statement about ai reversal by the Supreme Court of a decision of the Trial Court. In proceedings for disbarment the Court observed :\n\n\"In fact, the question is presented whether or not the language and order could. in any event, be deemed\n\n(I) 3 L.ed. 2d. 1512; 1522. .\n\n(2) 17 Lawyers Reports Annotated, New Series p. 572.\n\nc, K. DAPHTARY v. GUPTA (Sikri, J.)\n\ncontemptous or warrant any action upon the part of this court, upon the theory that they are but criticisms of an opinion of a court which it is the province of anyone to indulge in, irrespective of whether such criticiSms are just or unjust, or whether or not they are couched in respectful language. The right to criticize an opinion of a court, to take issue with it upon its conclusions as to a legal proposition, or question its conception of the facts, so long as such criticisms are made in good faith, and are in ordinarily decent and respectful language, and are not designed to wilfully or maliciously misrepresent the positiOn of the court, or tend to bring it into disrepute, or lessen the respect due to the authority to wliich a court of last resort is entitled, cannot be questioned.\n\nTo attempt to declare any fixed rule making the boundaries where free speech in reference to court proceedings shall end would be as dangerous as it would be difficult.\n\nThe right of free speech is one of the greatest guarantees to liberty in a free country like this, even though that right is frequently and in many instances outrageously abused.\n\nOf scarcely less, if not of equal, importance, is the maintenance of respect for the judicial tribunals, which are the arbiters of questions involving the lives, liberties, and property of the people.\n\nThe duty and power is imposed upon the courts to protect their good name against ill-founded and unwarranted attack, the effect of which would be to bring the court unjustly into public contempt and ridicule, and thus impair the respect due to its authority. While it is the duty of all to protect the courts agaiinst unwarranted attack, that duty and obligation rests especially upon the members of the Bar and other officers of the Court. It would be foolish, as well as useless, for anyone to contend that th~ very highest courts do not make mistakes.\n\nCourts themselves prove this by overruling previous decisions.\"\n\n\"If any considerable portion of a community is led to believe that, either because of gross ignorance of the law, or because of a worse reason, it cannot rely upon the courts to administer jusice to a person charged with crime, that portion of the community, upon some occasion is very likely to come to the conclusion, that it is better no to take any chances on the courts failing to do their duty.\n\nThen may come mob violence with all its detestable features. To say that respondent meant no disrespect for this Court is contrary to the plain meaning of the language used, and the order directing that it be spread upon the minutes of the district court.\"\n\nSUPREME COURT REPORTS [1971] WPP. s.c.R.\n\nThe question whether the existing law of contempt is unreasonable within Art. 19(2) of the Constitution has been the subject of decisions in some of the High Courts. They have aU come to the conclusion that the restrictions imposed by this law are reasonable. S. K. Das, J., then a Judge of the Patna High Court, in Legal Remembrancer v. B. B. Das Gujta,(') after referring to the arguments of Mr. Ghosh, observed as follows :\n\n\"I think that the answer to the arguments of Mr. Ghosh is to be found in the words of Lord Atkin-\"Justice is not a cloistered virtue.\" Any and every criticism is not contempt.\n\nOne of the tests is, to use the words of Mukherjea, J. in Brahama Prakash Sharma v. The State of\n\nUttar Pradesh (') whether the criticism Is calculated to interfere with the due course of justice or proper administration of law; whether it tends to create distrust in the popular mind and impair confidence of people in the Courts of law. These tests have been part of the meaning of the expression contempt of Court from before the Constitution and are still a part of its meaning-a meaning which the framers of the Consitution must have known when they used the expression.\n\nWe are giving no wider connotation to it, and it is idle to contend that such a connotation imports any unreasonable restriction on freedom of speech and expression.\" We agree with the observations of the learned Judge.\n\nIn Lakhan Singh v. Balbir Singh (') it was held that \"the law of contempt as laid down by British and Indian Courts imposes resonable restrictions on the exercise of the right of freedom of speech and expression and the previous law continues in force even after the amended Art. 19(2) of the Constitution.\" It was further stated that \"conditions in India. are different from those prevailing in America. The language of our Constitution after the amendment of Article 19 requires us to see whether the restrictions are \"reasonable\".\" It is true that this case was dealing with a publication which prejudiced mankind against a party before the case was heard, but the general observations are relevant for the purpose of this case.\n\nIn the State v. Vikar Ahmed (') the High Court of Hyderabad was considering the question of scandalising the Court @r the Judge. In this connection they said :\n\n\"We may observe that freedom of press under our constitution is not higher than that of citizen, and that\n\n(I) [1953] r.L.R. 32 Pat. 1069; 1091.\n\n(3) [1953] I I.LR. All. 796.\n\n(2) [1953] S. C. R. 1169.\n\n(4) I.L.R. [1954] Hyd. 270; 278.\n\nc. K. DAPHTAllY •• GUPrA, (lkr/, J.)\n\nthere is no privilege\" attaching to ·.tile profession of the press as distinguished frQIJI. p:iemrs of the public.\n\nTo whatever height tho subject in general may go, so also may the journalist, and if an ord.inary citizen may not transgress the law so must not the .p~ .. That the exer cise of expression is subject to the reasonable restriction ef the law of contempt, is borne out by cli (2) of Art. 19 of .the Constitution. It should be well to rememQeithat the Judges by reason of their.office are precluded fri>m entering into any controversy in the columns of the public press, nor can enter the arena and do battle upon equal terms in newspapers, as can be done by ordinary citizens.\" Re5pondent No. 1 contends that the present law places llrt reasonable restrictions because It serves no useful purpdlK> .tion Of any docwnent, or ·$he inYastigation or punisllUttut\n\nany cootempf ofJitadf.\"\n\n7-1 S. c. India/71\n\nSUPllllMI COUllT lll!POllD [1971) SUPP. s.c.ll.\n\nWe are here also not concerned with any law made by Parlia.- ment Art. 129 shows that the Supreme Court has all the powers of a Court of Record, including the power to punish for contempt of itself, and Art. 142(2) goes further and enables us to investigate any contempt of this Court.\n\nWe are accordingly of the opinion that assuming that Art. 19(2) applies, the restrictions imposed by the existing law of contempt are reasonable, and are in public interest.\n\nRespondent No. 1 sought to justify the extracts which we have reproduced above from para 7 of the petition. His justi fication was, in brief, that he could show that in the judgment there were numerous errors. He proceeded to point out a number of so-called errors to us but we told him that we were not sitting\n\n116 a Court of Appeal and we were willing to assume in his favour, without deciding the point, that there were errors in the judgment.\n\nBut even so, there is no excuse whatsoever for using the language which he employed in these passages. It must be remembered in this connection that it was Mr. Justice Hegde who drafted and deliveted the judgment. He does not impute dishonesty to Mr.\n\nJustice Hegde but to Mr. Justice Shah. He explains this by saying that it was Mr. Justice Shah who controlled the hearing and he would not even allow Mr. Justice Hegde to listen to his arguments.\n\nWe are unable to believe this.\n\nAccording to Respondent No. 1. the words \"dishonest judg ment\" and \"dishonesty\" have to be understood in Ill special sense.\n\nHe says that tltese words were used in order to show the manner in which the appeal was heard and the manner in which Mr.\n\nJustice Shah made up his mind quickly and then refused to budge from that position. . It is well-settled that we have to give the plain meauing to the words used in the pamphlet or the booklet.\n\nGiving the ordinary and plain meaning it appears to that\n\n\"dishonesty\" means dishonesty, I.e. that he has ascribed to the Judge Ill conduct which would be most reprehensible. In other words he says that although Mr. Justice Shah was convinced that the appeal of the Srate of U. P. should be dismissed he cleverly asked Mr. Justice Hegde to deliver the judgment and allow the appeal, ood that Mr. Justice Hegde wrote down what Mr. Justice Shah dictated or told him to write.\n\nWe have already set out paras 10.S and 10.8 of the affidavit filed by the first respondent. We are unable to give ooy other meaning to the words \"dishonest judgment\", \"open-dishonesty\", \"deliberately and dishonestly\", \"utter dishonestly\", i.e. the meaning which he now seeks to ascribe to these wools. It seems to us that whoever drsfted the Impeachment Motion drsfted it with\n\nc. K. DAPHTARY v. GUPTA (Sill.ri, J.)\n\na view to bring the facts within the meaning of the expression \"misbehaviour\" in Art. 124(4) for he must have realised that to say that a Judge has committed errors, even gross errors, cannot amount to \"misbehaviour\".\n\nIt seems to us that in view of the decisions of the various High Courts in India and this Court the passages we ha.ve extracted, read as a whole, constitute gross contempt of this Court and !he two Judges. In this connection we may refer to some of the earlier cases decided by various High Co\\Jrts. In Moti Lal Ghosh In re (') a newspaper published articles scandalising the High Court and the Chief Justice in his administration thereof, by allegatious implying that the Chief Justice had constituted a packed Bench. It was held that the articles constituted coniempt of Court. One of the reasons given for holding contempt was that \"the mere suggestion that such a thing is within the bounds of possibility is a grave reflection upon the Court and the persons responsible for its administration.\" One passage of this judgment, which may be referred to, is at page .182 :\n\n\"The other matter to which I refer is the passage at the end of the article in which the author expresses perfect faith in the Chief Justice.\n\nThis, to my mind, is so inconsistent with the insinuations previously made in the articles, that it is impossible to conceive tha.t it was genuinely intended. It is much, in the same style as the conclusion of the previous article, and I do not think there can be any doubt as to the object of the author in using these words, viz .• to try and provide a means of escape for himself if he is taken to task for the previous matter contained in his article.\"\n\nSimilar remarks can be applied to the protestatlOns of the respon- JI dent No. 1 that he !las respect for this Court and the Judges, including Mr. Justice Hegde.\n\nIn Emperor v. Marmadule Pickhall (') the High Court of Bombay observed :\n\n\"The article as a whole would leave on the mind of an ordinary reader the clear impression that injustice had been deliberately done on political grounds to some of the accused who were apparently innocent.\n\nIn other words it attributes judicial dishonesty to the Judges. I am unable to accept the contention that such an article does not constitute a contempt of Court. We have to con\n\n(I) [1918] I.L.R. 4' Cal. 169, 182.\n\n(2) A.J.R.. 1923 Dom. s. to.\n\nJOO SUPllllMB COURT NIPOl\\11l [1971] SUPP. s.c.l\\.\n\nA sider the natural and probable effect of the . article and not only the avowed intention of the editor as indicated in bis affidavit I tbink that the publication of the article in question constitutes a contempt of Court\" •\n\nMr. Justice Shah, Acting Chief Justice, further observed:\n\n\"I am slow to hold that any unfair criticism of Courts of Judges constitutes such an interfereoce with the administration of justice as should be punished. I am wiling to act upon the view that the confidence of the public in Courts tests mainly upon the purity and correctness of their pronouncements and that such confidence is not lightly shaken by a mistake or unfair criticism of this kind.\n\nAt the same time it is clear that the tendency of such criticism is to undertnine. the dignity of the Court and in the end to embarrass the administration of justice. The faith of the public in the fairness and incorruptibility of Judges is a matter of great importance.\"\n\nIn Murli Manohar Prasad in re('), a Full Bench decision of five Judges, it was observed :\n\n\"lt is for this Court as a matter of law to i:onstrue words and phrases which have no technical significance and to decide what is their meaning and what is the effect which they are calculated to produce, and I have no hesitation in deciding that the words used by the author mean, and are calculated to mean, and intended to mean that the conduct of cases before the Chief Justice is such that arguments and authorities ate ignored and that for that reason the life and liberty of, the subject brought before the Chief Justice is in peril.\n\nSuch a statement made about a Judge in the execution of his office is a con tempt of Court, of the gravest character.\"\n\nIn the matter of K. L. Gauba(') where a boo)c publ4jled by an advocate of the Lahore High Court was concerned, the Full Beoch observed :\n\n\"This book contains most scandaloµs allegations of improper and even corrupt motives against Judges of this Court It is, therefore, deliberately . c, aJculated. to inter fere with and bring into contempt the administration of justice,· in th~ Proviilce a11d to lower the prtige o.f tbfa Court .•\n\n(I) (1929] I.L.R. 8 Pat. 323; 340.\n\n(2) (1942] J.L.R. 13 Lah. 411; 423; 424.\n\nc.1:. DAltHTAllY v. GUPTA {Sikrl, J.) 101\n\nWe may also mention that following Ram Mohan Lal, in the A matter of (1) Coats v. Chadwick, (') and Tusher Kanti Ghosh, Editor, In re('), the Full Bench disallowed the advocafe's appli cation to examine witnesses in defence.\n\nIt Observed :\n\n\"There is not a single case on record, except one to B which reference will presently be made, where a person suilty of scandalising the Court pleaded or attempted to prove that the libel was true. In Ram Mohan Lal, in the matter of (1) an attempt was made by the contemnor to call evidence to prove his allegations but the Court refused to call the witnesses and held that there can be no jus c tification of contempt of Court.\n\nEven assuming that the writer of a manifesto believes all the states therein to be true, if anything in the manifesto amounts to contempt of Court, the writer is not permitted to lead evidence to establish the truth of his allegation.\n\nIn Coats v. Chadwick (') Chitty, J., observed in a contempl D case as follows :\n\n\"The Plaintiffs' counsel not only admitted but boldly asserted, and made it part of their argument, that the circular was libellous. and that they could justify the libel. and. they referred to some of the evidence which apparently had been adduced for the purpose of sustaining justifi- E cation. But the evidence and the argument founded on it are irrelevant on this motion.\"\n\nIn Tusher Kanti Ghosh, Editor, In re (') Mukherji, J., at page 432, describing the characteristics of proceedings to punish brevi menu contempt of Court observed F that in such proceedings the contemnor is precluded from taking a plea or a defence.\"\n\nThe first respondent has argued his case at great length but we are unable to hold that he did not commit contempt of court.\n\nFqrtber, he did so deliberately. He admits that he took part in the drafting of the Impeachment Motion, and it seems to us that G whoever is responsible for the final draft deliberately used words in order to bring the allegations within the word \"misbehaviour\" in art. 124(4). He said that by assisting in the drafting he did not commit any contempt of Court. That may or may not be so. But so far as the present case is concerned we need not go into that wider question as he has admitted that he gave the H\n\n(!) A.I.R. [193S] All. 38.\n\n(2) L.R. (1894] 1 Ch.D. 347.\n\n(3) A.J.R. l93S Cal. 419.\n\nSUPREME COURT REPORTS [1971] SUPP; S.(:.lt.\n\nbooklet or the pamphlet to Mr. Mahindroo though a.ccording te him it was not given to him by way of sale and was not being offered for sale in general. He further said that it was admitted that the booklet was widely circulated but that this must have been done by some members of Parliament.\n\nHe complained that those members had not been arraigned as co-respondents.\n\nIf some members of Parliament circulated the booklet or the pamphlet, as alleged by Respondent No. 1, to persons who were not members of Pllifliament they .equally committed contempt of this Court. But as no body has chosen to file a petition against them, nor are we aware as to which member or members of Parliament have circulated the booklet or the pamphlet they could not be proceeded against. The fact that these members of Parliament had not been made co-respondents does not exonerate the first respondent or make it any the less contempt of court.\n\nWe must now refer to another defence which he relied on.\n\nHe said that art. 105(2) of the Constitution and the Parliamentary Proceedings (Protection of Publication) Act, 1956 (XXIV of 1956) protect him.\n\nHe submitted in his affidavit that \"firstly, Parliament is authority can be taken to be implied to this publication as it has taken no exception to or action on it; secondly, the article implies that when the publication is without such authority, only the Parliaiment shall take action for it.\" He further submitted that Sections 3 and 4 of the Parliamentary Proceedings (Protection of Publication) Act, 24 of 1956, also protect substantially true reports of Parliamentary proceedings unless made with ma.Uce.\n\nArticle 105 (2) reads as follows :\n\n\"No member of Parliament shall be luible to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of either Home of Parliament of any report, paper, votes or proceedings.\"\n\nWe are unable to appreciate how on the facts proved in this case Art. 105(2) applies. He has not relied on MIY express authority of the Lok Sabha, and Art. 105(2) does not say anything of aDY implied authority resulting from non-action of Parliament. Nothing, in fact was shown to us 86 to establish the publication of the pamphlet or the booklet as a publication \"by or under tile authority of either House of Parliament of any report, paper. votes or proceedings.\"\n\nSection 2 of the Parliamentary Proceedings (Protection of Publica•tion) Act, 1956, defines \"newspaper\" thus :\n\n\"In this Act, \"newspaiper\" means any printed periodi cal work containing public news or comments on\n\nc. It. DAPJITARY >.GUPTA (Slkrl, J.)\n\npublic news, and includes a news agency supplying mat&- rial for publie&tion in a newspaper.\"\n\nSectioas 3 and 4 of this Act read thus :\n\n\"3.(1) Save as otherwise provided in sub-section(2), llO person shall be liable to any proceedings, civil or cri minal, in any Court in respect of the publication in a aewspaper of a substantially true report of any proceed ings of either House of Parliament, unless the publication is proved to have been made with malice.\n\n(2) Nothing in sub-section (!) shall be construed as protecting the publication of any matter, the publication of which is not for the public good.\n\n4. This Act shall apply in relation to reports or mat ters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broad casting shtion situate within the territories to which this Act extends as it applies in relation to reports or matters published in a newspaper.\"\n\nVarious questions of interpretation would have arisen if the pamphlet or the booklet had been published in a newspaper, as defined in s. 2. One of them would be whether a contempt proceed ing is a criminal or a civil proceeding or not; a question would aJso arise whether a notice of impeachment under art. 124(4), if not admitted by the Speaker under s. 3(1) of the Judges (Inquiry) Act, 1968 (Act LI of 1968), is a proceeding of Parliament within the meaning of s. 3 of the Parliamentary Proceedings (Protection of Publication) Act, 1956. But as here we are not concerned with the publication of the pamphlet or the booklet in a newspaper we need not decide these questions. It seems to us that the protection under s. 3 is only given to newspapers or broadcasting agen cies.\n\nThe protection is available provided that the publication has not been made with malice and is for public good.\n\nEven so Respondent No. I contends that ss. 3 and 4 of the Padiamentary Proceedings (Protection of Publication) Act, 1956, show that Parliament considers it important that proceedings of the Houses of Parliament should be made known to the public, and therefore, if a private person does what is permitted by s. 3, it cannot be said to be contempt of court becanse by permitting publication under s. 3 Parliament must be deemed to have said that publication even of a proceeding which would ordinarily amount to contempt of court does not affect the due administration of justice. We are unable to deduce such an inference from ss. 3 and 4 on the statute book. This is a limited protection given\n\nSUPllllMI! COURT llEPOR'l'S [1971] SUPP. s.c.11..\n\nto newspapers and even then it will require serious consideration whether a contempt proceeding is a proceeding, civil or crimiEa.t, within the meaning of s. 3.\n\nIn the result we hold that neither art.. 105(2) nor the Parliamentary Proceedings (Protection of Publication) Act, 1956 protect the first respondent in respect of the contempt of court committed by him.\n\nThe first respondent said, and he has also stated so in pa.a 10 of his affidavit, that the petitioners had \"needlessly dragged in the fair name of Hon'ble Mr. Justice Hegde.\" According to him, the name of Mr. Justice Hegde clid not occur even once anywhere either disparagingly or otherwise, llind he had the greatest regard and respect for him, just as he had for every other Judge in India. He said that he took great care to keep out the fair name of Mr. Justice Hegde although he did so at the risk of the impeachment motion not being admitted. It seems to us, however, thllit at least to persons who knew that the appeal had been heard by Mr. Justice Shah and Mr. Justice Hegde and that the judgment was drafted and delivered by Mr. Justice Hegde, and to persons who ace familiar with the practice of thk Court the statement that \"the other Judge merely toed his line\" must llippear as gross contempt of Mr. Justice Hegde and this Court. The expression \"toed the line\" used in reference to Mr. Justice Hegde, by clear implication, melllns that the learned Judge, contrary to his own views, followed what was imposed upon him by Mr. Justice Shah.\n\nThere can be no more flagrant contempt of a Judge than to say that he surrendered his own judgment in deference to or on dictation by another Judge sitting with him.\n\nIn para 3.2 of his a.ffidavit Respondent No. I submitted :\n\n\"But I am not at this stage making any attempt to contradict evidence given or to give any evidence on my side. This will be done if and when the occasfon arises or the Hon'ble Court so orders. I will have to summon some documents a.lso for that purpose.\"\n\nWe indicated to him during the course of the hearing that he should file his affidavit or affidavits dealing with the merits of the case but that he would not be permitted to lead any other evidence to justify contempt.\n\nWe have already referred to cases whicl1 show that he cannot justify contempt. If a judgment is criticised as containing errors, and coupled with such criticism, dishonesty is alleged, the Court hearing the contempt petition would first have to act as a.n Appellate Court and decide whether there are errors or not. This is not and cannot be the function of a Court trying a petition for contempt.\n\nIf evidence was to be\n\nO. K<. DAPllTARY V. GUPTA (Sikri, J.)\n\nallowed to justify allegations amounting to contempt of court it\n\nwOuld tend to encourage disappointed litigants-and one party or the other to a case is always disappointed-to evenge their defeat by abusing the Judge.\n\nThis takes us to some of the points regarding maintainability of the petition and the defects in procedure, as aileged in his application dated January 28, 1971 (Criminal Misc. Petition No. 172 of 1971.)\n\nIn Sukhdev Singh Sodhi v. Chief Justice and !Udges of the l'ep8U High Court(') this court observed:\n\n\"We Mid therefore that the Code of Criminal Procedure does not apply in matters of contempt triable by the High court. The High Court can deal with it summarily and adopt its own procedure. All that is neces- :wy is that the procedure is fair. a.nd that the contemnor is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was I.aid down by the Privy Council In re PollardrY and was followed in India and in Burma in In re Vallabhdas(') and Ebrahim Mamoojee Parekh v. King Emperor(').\n\nIn our view that is still the Jaw. It is in accordance with the practice of this Court that a notice was issued to the respondents and opportunity given to them to file aJfidavits stating facts and their contentions. At one stage, after arguments had begun Respondent I asked for postponement of the case to engage some lawyers who were engaged in fighting elections. We refused adjournment because we were of the view that the request was not reasonable and was made with a view to delay matters. We may mention that the first respondent fully argued his CMe for a number of days. The procedure adopted by us is the usual procedure followed in all cases.\n\nThe first respondent contended that the affidavit of Mr.\n\nS. N. Prasad wa~ defective because the verification was not in accordance with the provisions of law relating to affidavits. In para 2 of the affidavit Mr. S. N. Prad stated :\n\n\"that I state that the facts stated in paragraphs l and 8 of the petition are true to my personal knowledge and the facts staed in paragraphs 2 to 1 are believed to be true by me on the basis of the information received.\"\n\n(I) fl945J s.c.R. 454; 463\n\n(3) I.L.R. 27 Dom. 394\n\n(2) L.R. 2 P.c. 106 at 120\n\n(4) I.L.R. 4 Rang. 257 at 259·261\n\n1011'\n\nSUPREME COURT REPORTS [1971] SUPP. S.C.ll-\n\nThe first respondent said that the source of information had not. been disclosed. Para 2 of the petition refers to proceedings in. this Court and it was not necessary to h:we disclosed any further source of information. AB far as paras 3 and 4 are concerned. the first respondent admits that he approached members of Parliament to file a motion of Impeachment against Mr. Justice Shah.\n\nCalling this a \"campaign\" is only to describe in a word his activities. Whether it should be strictly called a campaign is beside the point The essential facts mentioned in para, 5 are admitted by the first respondent. Therefore the fact that the source of information was not disclosed does not debar us from taking the facts into consideration. The last sentence of para 5, viz., \"The said pamphlet, was as the petitioners belive, sold or offered for sale to the public by Respondent No. 3.\" is a matter of belief.\n\nPara 6 contaiins inferences and submissions in respect of which there was no question of disclosing the source of information.\n\nPara_ 7 contains extracts from the booklet or the pamphlet which was attached as an annexure. In view of the document having been attached it was not necessary that the source of information regarding parai 7 should have been disclosed.\n\nThe allegations in para 9 of the petition are supported by an affidavit of Mr.\n\nB. P. Singh, Advocate, who has verified that the contents iD his affidavit are true to his knowledge. Paira JO of the petition contains submissions and it was not necessary to state the source of information. We are unable to see any defect in the affidavit filed on behaU of the petitioners.\n\nIn para 5 of his petition dated January 28, 1971, the first respondent stated that \"the complainant must disclose all his evidence with the initial petition and cannot be allowed to supplement Billy evidence later.\" He s]lbmitted that \"In the present petition, no evidence against the respondents has been disclosed. except in regard to paragraph 9 of the petition, although there are very wide and sweeping allegations in other paragraphs.\" There is no basis for this complaint becanse all the affidavits were filed alongwith the petition.\n\nIn parai 6 of the petition dated January 28, 1971, he stated that \"the charges against the alleged contemnors must be specifically written. It is not sufficient to leave the respondents searching for the charges from the entire petition.\" He submitted that the petition did not clarify specifically 318 to what the distinct charges against each respondent were. In the course of his arguments he referred to a number of authorities in support of this para. It is unnecessary to refer to them except one, because it\n\ni~ clear that on the facts the charge against the first respondent is quite clear and simple and it is not necesS31ry that a format charge should be drawn up by the petitioners or the Court.\n\nC. K. DAPllTARY r. GUPTA (Sikrl, J,) 107\n\nIn Nagar Mahapalika of the City of Kanpur v. Mohan A Singh,(') this Court was concerned with the contempt of Alla habad High Court by the Nagac Mahapalika of the City of Kan pur by .committing a breach of an injunction issued by the High Court. In this connection Sarkar, J ., as he then was, speaking on behalf of the Court, observed :\n\n\"We will deal first with the case of the Municipality.\n\nIt will have been noticed that it was not the respondent's case that the Municipality had issued any new licence after the order of July 14, 1961. In fact, it was conceded that it did not do so. What was said was that the Municipality adopted a practice of realising ricksha.w taxes from the owners and printing the fact of the receipt of the tax on the rickshaws and permitting them to ply without licences. The way the case seems to have been put before the High Court was tha.t this was a subterfuge adopted by the Municipality to get round the order of the High Court, the object of which was to stop new rickshaws plying for hire, by permitting rickshaws to ply without a licence on payment of the tax. This contention was accepted by the High Court. It seems to us somewhat unfortunate that the matter proceeded in this way.\n\nAn allegation of contempt of court is a serious one and is considered by courts with a certain a.mount of strictness. A person against whom such an allegation is made is entitled to be told the precise nature of it. In this case the respondent did not state that any subterfuge had been adopted by the Municipality or that the Municipality had sought to defea.t the orders of the courts; that was only insinuated. This is not a fair or permissible way of charging a person with contempt of court. The contempt alleged cannot be left to be spelt out from the allegations ma.de nor can the person charged be left to guess what contempt is alleged against him.\n\nFurther, paragraph 8 of the petition for committal for contempt stated that there was a direct contra.vention of the order which of course, there was not as no licences had been issued. Neither were any particulars given oo to how the alleged practice that WM adopted was intended to get round the order, nor of how the Municipality permitted rickshaws to ply without licences.\n\nWe think the learned Attorney-General was perfectly justified in drawing our attention to these defects in the petition and characterising them as serious.\"\n\n(1) Cr. Ap. No 27of1964; Judgment dated 31-1-1966.\n\nSUPRl!MB COURT llBPORTS\n\n[1971] SUPP. S.C.R.\n\nThe facts in this case are quite different and it seems to us that the petition is as clear as it can be. By setting out the extracts from the pamphlet or the booklet pointed attention has been drawn to the offending passages, although the whole booklet or the pamphlet was annexed as an annexure.\n\nIn para 7 of the app!ica.tion dated January 28, 1971 the first respondent submitted that the petition should not have contained anything which was not a charge against him. He complained that the petition contaiined several wild allegations based entirely on surmises. He further added that \"being without evidence they cannot be, and have not been put down specifically as charges against the respondents, and therefore ought not to find place in the petition.\" He developed this point by referring to paras 3, 4 a.nd.5 of the petition. These paras seem to be introductory to the main charge and there is no law that anything introductory should not be put in the petition. He admits that he patiently approached each Hon'ble Member and narra.ted the deep wrong done to him and he was able to satisfy quite a number. Nobody denies that he has a right to approach and convince the Hon'ble Members and that he exercised that right But if the petitioners have called it a \"campaign\" in paras 3 and 4 of the petition, no serious objection can be ta.ken to these paras.\n\nIn para 8 of this a.pplication Respondent No. 1 submitted that there was delay of more than 120 days in filing the petition for contempt. He says that delay is always fatal to contempt a.ction unless it is fully explained and condoned in proper cases and on proper application. We are unable to see any delay in this case. After the first respondent gave a copy of the pamphlet or the booklet to Mr. Mahindroo, the petitioners had to a.scertain facts regarding its publication, printing, etc.\n\nAs the Attorney- General did not move in the matter, the President of the Supreme Court Bar and the other petitioners chose to bring this contempt to our notice. It is no that \"a.n application for attachment should be made promptly, or the Court may refuse to attach.\" But whether there has been delay or not depends on the facts of a particular case.\n\nIn this connection Respondent No. 1 referred to page 231 of Ramchandran's book on 'Contempt of Court under the Indian Constitution' where the author gives the American Law on this point as follows :\n\n\"While delay in contempt proceedings is to be deprecated the power of court to take such action is not however lost by delay. The summary power is not\n\n(I) Oswald-COntempt of Court-Third edition p, !96\n\nC. K. DAPllTARY. V. GUPTA (Slkrl, J.) 109in any way. jeopardised on that account . except where delay extends substantially beyond the end of trial, in which event it has been held faital to the power of summary punishment.\" But even the American law is quite clear that delay is not fatal.\n\nSimilarly, in State Government, Madhya Pradesh v. Vinaya Kumar(') it was observed as follows :\n\n\"We do not say that delay will always be fata.I.\n\nThere may be cases in which it is not. Examples of both kinds of cases will be found in 7 Halsbury's Laws of England, Hailsham Edition page, 37 Note (p).\"\n\nIn this connection we may also deal with his objection in para IO of the application that the petitioners have no locus standi. This Court can issue a notice suo motu.\n\nFurther, the advocates of this Court, including the President of the Supreme Court Bar Association, are perfectly entitled to bring to our notice any contempt of this Court.\n\nThe first respondent referred to Lord Shawcross Committee's recommendation that \"proceedings should be instituted only if the Attorney-General in his discretion considers them necessary.\" This is only a recommendation made in the light of circumsflllnces prevailing in England. But it is not Jaw. We may mention thiit the Attorney-General in England has quite a different position than the Attorney-General of India. or the Advocates-General of the States.\n\nThe Attorney-General in England is a member of the Cabinet, and as far as we are aware, unlike the Attomey- GeneraJ in India, he does not have to receive instructions from Government whether to move a contempt petition or not.\n\nBe that as it may, there is nothing in law which prevents this Court from entertaining a petition at the instance of the President of the Supreme Court Bar Association and three other advoca.tes of the Court. The Bar is vitally concerned in the main tenance of the dignity of Courts and the proper administration of justice. ·\n\nThe next point mentioned in the petition dated January 28, 1971, is regarding non-joinder of the 200 or so signatories of the motion of impeachment. We are unable to see why the petition is bad for non-inclusion of the said signatories.\n\nThere is no allegation or proof that any of the said signatories circulated this\n\nboolciet or pamphlelt outside the Parliament, to persons othtt than members of l'arliament.\n\n(I) A.J.R. 19~2 Nag. 34\n\n,~.\n\nA ..\n\nllO SUPltJl1413 COUllT llBPOllTS [1971] SUPP. s.c.1..\n\nWe ma.y now deal with the other legal submissions contained in his affidavit. He submitted, in brief, that the substance of the impeachment motion had already been put in the writ petition which he filed against Mr. Justice Shah on October 27, 1969.\n\nAccording to him, a reproduction of proceedings of court is not contempt unless the Court has prohibited the publication.\n\nWe ace unable to appreciate this line of argument. Even if he had filed a writ petition containing the subs_!ance of the impeach ment motion, we are unable to see how it affords a defence to the commission of contempt of this Court by circulating the book let or the pamphlet.\n\nIn para 21 of his affidavit his defence seems to be that he had told Mr. Justice Shah during the course of the hearing that he was only telling the truth and if in telling the truth it was necessary for him to go to jail for contempt he was ready for the same. He seems to suggest thait if Mr. Justice Shah did not choose to take any action for contempt it is improper and not open to the petitioners to initiate these proceedings.\n\nWe are unable to see any force in this submission.\n\nIn para 23 of his affidavit his defence is that the filing of the petition is itself contempt because \"the real object of the petitioners, which is very obvious a.nd writ large on their faces, is to take revenge upon me for having dared to approach the Parlia ' ment against their friend, junior and erstwhile boss Shri I. C.\n\nShah. The cloak of \"publication a.nd distribution outside Parliament is too thin to hide their real motive.\" We are unable to see how the petition is itself contempt.\n\nThis para shows the real attitude of the respondent. He seems to think that people act only to take revenge 86 he seems to have done.\n\nWe have already dealt with his submissions in para 24 and 24.1.\n\nThe contention of the respondent in para 25 is that even if it is a contempt it is a. technical and trivial contempt which is not actionable. We are unable to hold that on the facts of the case it is a technical and trivial contempt. It constitutes gross contempt of two Judges of this Court and the Court itself. He w86 well aware of the contents of the pamphlet or the boolctet.\n\nThe affidavit of Mr. B. P. Singh establishes that Respondent No. l was showing copies of the pamphlet or the booklet which he was carrying with him to several members of the Bar in the Bar Association room.\n\nHis affidavit and Mr. Mabindroo's affidavit further establish that he gave one copy of it to Mr. Mabindroo openly in the Bar room. Being a lawyer he must have known that it would be discussed there.\n\nC. I:. DAPHTAllY v. GUPTA (Slkrl, J.) Ul\n\nThe cases referred to in para 25 aind in the coutse of the ·· 4 arguments are quite distinguishable and are not applicable.\n\nNow to come to the case of Respondent No. 2. Mela Ram, one of the partners of Rising Sun Press, sta.ted in his affidavit that in the month of April 1970, the first respondent went to him for .entrusting printing work and said that he had been sent by Shri\n\nTulsi Ram, Proprietor Youngman & Co., Egerton Road, Delhi, whose printing work was being; done by him for the last about 16 years and who used to send customers to him from time to time for printing work. He told the first respondent to see the contractor, Ram Vir, who did composing work for him. He says that he did not look into the material which the first respondent brought for printing ood he left the composition work to the con tractor above-named. He further says that as at about that time his mother-in-la.w expired he had to go to District Gurdaspur where he stayed about a week and in his absence the first respon dent sat day-to-day with the contractor and compositors for having the composition completed quickly aind he also got the printing done in his press before he returned from Gurdaspur.\n\nAfter getting the material printed the first respondent collected the same from the press before his return from Gurdaspur. He further says that the printing forms had already been taken away b)i the first respondent before he returned a.nd it was not possible for him to know the contents. He further says that the title cover of the printed booklet was not printed by him nor was the binding done by him.\n\nHe further alleg-es that the first respondent had not even paid his charges. He expressed his unconditional and unqualified apology to this Court. In view of the unconditional apology tendered by him, we do not think any further action need be taken against him.\n\nThe third respondent has not been served or traced.\n\nWe need not say anything about him for the present.\n\nIt seems to us that on the facts of this case a heavy sentence is called for.\n\nNot only did the first respondent commit gross contempt of this Court but he took advantage of the retirement of Mr. Justice Shah and hurled fresh abuses on him in Court. It is true that he has offered an apology, but an lfiK>logy coupled with fresh abuses can hardly be taken note of.\n\nHowever, we have decided to be lenient and impose only a sentenec of simple imprisonment for two months. We have decided to be lenient because such gross contempts of this Court are happily rare, .but any future gross contempt of this Court of this nature will be dealt with not so leniently. In\n\ntbe result it is held that 0. P. Gupta, respondent No. I, ia\n\nSUPRBMB COUY.T RBPORTS [1971] SUPP S.C.ll.\n\nA guilty of contempt of this Court and sentenced to simple impri sonment for two months. We direct that he be arrested and committed to civil prison for two months. We further authorise the Registrar to take all necessary steps in this behalf.\n\nV.P.S.", "total_entities": 83, "entities": [{"text": "C. K. DAPBTARY & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "C. K. DAPHTARY & ORS", "offset_not_found": false}}, {"text": "O. P. GUPTA & ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "O. P. GUPTA & ORS", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 83, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT", "offset_not_found": false}}, {"text": "A. N. 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"end_char": 66527, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "art. 105(2)", "label": "PROVISION", "start_char": 67891, "end_char": 67902, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parliamentary Proceedings (Protection of Publication) Act", "label": "STATUTE", "start_char": 67931, "end_char": 67988, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sections 3 and 4", "label": "PROVISION", "start_char": 68346, "end_char": 68362, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliamentary Proceedings (Protection of Publication) Act", "label": "STATUTE", "start_char": 68370, "end_char": 68427, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 105", "label": "PROVISION", "start_char": 68536, "end_char": 68547, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 105(2)", "label": "PROVISION", "start_char": 68966, "end_char": 68977, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 105(2)", "label": "PROVISION", "start_char": 69052, "end_char": 69063, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 69369, "end_char": 69378, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 70678, "end_char": 70682, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 124(4)", "label": "PROVISION", "start_char": 70846, "end_char": 70857, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 70896, "end_char": 70903, "source": "regex", "metadata": {"statute": null}}, {"text": "Judges (Inquiry) Act, 1968", "label": "STATUTE", "start_char": 70911, "end_char": 70937, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 71008, "end_char": 71012, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliamentary Proceedings (Protection of Publication) Act", "label": "STATUTE", "start_char": 71020, "end_char": 71077, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 71262, "end_char": 71266, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 71475, "end_char": 71486, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 71744, "end_char": 71748, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 71832, "end_char": 71836, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 72063, "end_char": 72074, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 72338, "end_char": 72342, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliamentary Proceedings (Protection of Publication) Act", "label": "STATUTE", "start_char": 72401, "end_char": 72458, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mid therefore that the Code", "label": "STATUTE", "start_char": 75396, "end_char": 75423, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]} {"document_id": "1971_1_777_785_EN", "year": 1971, "text": ".-.-J\n\nGOVIND MEHTA v.\n\nSTATE OF BIHAR May 7, 1971\n\n[C. A. VAIDIALINGAM AND A. N. RAY, JJ.J\n\nCode of Criminal Procedure, 1898, s. 195(1)(c), 476--Transfer applica tions before District Magistrate of cases pending before magistrate-Magistrate charged with offence under s. 471 for committing forgery on the order sheets of the cases on complaint by District Public Prosecutor-AppUcability of bar of s. 195(1) (c)-Magistrate cannot be said to be \"party 10 any\n\nprar:eeding in any court.\"\n\nWhen the appellant came to know that transfer applications had been filed in respect of certain cases on his file he recorded orders on the ordersheets , of the cases making serious allegations against the District Magistrate before whom_Jhe transfer applications were pending to the effect that the latter was attempting . interfere with the course of justice in the proceedings connected with the cases.\n\nThe Additional District Magistrate, who heard the transfer applications sent a report for initiation of pro .. ceedings against the appellant for having committed forgery in the order sheets. On a complaint by the District Prosecutor the appellant wa'J COpl\n\nmitted to the sessions to take trial under ss. 167, 466 and 471 Penal Code.\n\nThe appellant filed applicatiOns questioning the legality of the trial on the grounds that the mandatory provisions of ss. 195 and 476 of the Code of Criminal Procedure were not complied with.\n\nThese were rejected by the Sessions Judge. Revisions to the High Court were also dismissed. In appeal to this Court it was contended : (i) the authoriiy to file the complaint against the appellant was the Court to which the appellant was subordinate at the material time as is mandatory under s. 195(1)(b) and (c) and, therefore, cognizance could not be taken of the complaint filed by the District Prosecutor; and (ii} there was violation of the mandatory provisions of s. 476 of the Code, inasmuch as the complaint Was not filed by the Additional District Magistrate.\n\nDismissing the appeal,\n\nHELD: (i) The High Court has, after analysis and very elaborate consideration, come to the conclusion that the charge framed under s. 167 of the Penal Code is justified. Therefore, the contention that with a view to evading tbe .bar of cl. (b) of s. 195(1) the prosecution adopted the device of not charging the appellant under s. 193, Penal Code, cannot be accepted. As the charge has been framed under s. 167, the bar under s. 195(1)(b) and le) has no application. [782F, G]\n\n(ii) The offence under s. 466, Penal Code, is not covered by els. (b) or (c) of s. 195(1). Therefore s. 195 does not operate as a bar in respect of this offence. [783A]\n\n(iii) Thoueh s. 471 of the Code is taken in by cl. (c) of s. 195(1), for the clause to operate as a bar to taking cognizance of an offence under s. 471 it is essential that the offence must be alleged to have been commit H ted \"by a party to any proceeding in any Court\". Merely on the basis that the applications for transfer of certain cases pending before the appellant had been filed making allegations against the appellant will not make the\n\nA appellant a party to those proceedings.\n\nHe was functioning as Magistrate and had no personnel interest in the outcome of the transfer applications.\n\nTherefore, cl. (c} of s. 195(1) also does not bar the jurisdiction of the magistrate to take cognizance of the offence under s. 47 L of th(\" Code.\n\n[783B, G]\n\n(iv) Because s. 195(1) (b) or (c) does not apply \\o the case of the appellant section 476 of the Code does not come into the picture.\n\nEven B otherwise, the section does not apply for the reason that the order of t..ie ;\\dditional District Magistrate clearly sho\\vs that all the findings recorded against the appellant were only reasons for transferring the cases from the file of the appellant ; the Additional District Magistrate himself had nol taken any action as contemplated under s. 476 of the Code.\n\n[784B, F]\n\nCRIMINAL APPELLATE\n\nJURISDICTION : Criminal Appeal No. l54 of 1969.\n\nAppeal by special leave from the judgment and order dated December 16, 1968 of the Patna High Conrt in Criminal Revision Nos. 345 end 346 of 1968 and Criminal Misc. Nos. 248 and 24'> ot 1968.\n\nJyoti Narain, S. N. Misra and U. P. Singh, for the appellant.\n\nR. C. Prasad for the respondent.\n\nThe Judgment of the Court was delivered by\n\nVaidialingam, J.-The accused in this appeal, by special leave, challenges the common order dated December 16, 1968 passed by the Patna High Court dismissing Criminal Revision Nos. 345 and 346 of 1968 and the connected Criminal Miscellaneous Petition Nos. 248 and 249 of 1968. The Criminal Revisions and the Criminal Miscellaneous Petitions were a II directed against the orders passed by the crimiml courts directing that the appellant should stand his trial for otkoces under Sections 167. 466 and 47! of the Indian Penal Code 01erei'iiatter called the Penal Code).\n\nThe facts giving rise to the Criminal Revisions and the Criminal Miscellaneous Petitions may be. stated : In 1963 the appellant was posted at Patna as Magistrate, !st Class. with special powers to try Bad Livelihood Cases (which are called B. L. Cases) •mder Section l 10 of the Code of Criminal Procedure (hereinafter called the Code).\n\nIn September 1963 two B. L. Cases Nos. 4 and 5 of 1963 had been started against Kailash Gape and Rarnprit Gope and others respectively.\n\nThose cases were transferred to the file of the appellant for disposal.\n\nAt the time of the transfer of cases, the accused persons had already been enlarged on bail.\n\nBut the appellant claims to have noticed some defects in th\" bail bonds furnished by those persons.\n\nHe gave directions that the defects in the bail bonds should be rectified.\n\nOn the parties failing to rectify the defects, the appellant cancelled the bail bonds and remanded them to jail custody.\n\nThe parties against whom\n\nOOVIND v. BIHAR (Vaidialingam, J.)\n\nthe B. L. Cases had been started, filed two applications before the District Magistrate, Patna for transferring their cases from the file of the court of the appellant to the file of another Magistrate on the ground that they seriously apprehended that they will not get justice at his hands.\n\nAfter coming to know of the filing of the transfer applications, the appellant recorded two orders on the order sheets of cases Nos. 4 and 5 making very serious allegations against the District Magistrate before whom the transfer applica tions were pending to the effect that the latter was attempting to interfere with the course of justice in the proceedings connected with the case Nos. 4 and 5.\n\nThe appellant is alleged to have inserted these two orders in the order sheets of the two cases long after the last orders were passed in those cases to make it appear that the remarks against the District Magistrate had been made much earlier.\n\nThe District Magistrate called for a report from the appellant and he sent the records or the proceedings to the District Magistrate with his report.\n\nIn his report he had also stated that the matter is of great importance and the entire case and the order sheets should be kept intact for favour of any action that the High Court may consider fit and proper.\n\nIn view of the allegations made by the appellant against the District Magistrate mentioned in the order sheets, the latter tranSferred the transfer applications to the file of the Additional District Magistrate on November 11, 1963.\n\nThe Additional District Magistrate after hearing the parties transferred both the cases from the file of the appellant to another Magistrate and sent a report to the District Magistrate for initiation of proceedings against the appellant for having committed forgery in the order sheets in both the B. L. Cases.\n\nThe report of the District Magistrate was forwarded to the State Government, who accorded sanction for prosecuting the appellant.\n\nThe Senior District Prosecutor, Patna filed on December 21, 1964 a complaint in the Court of the Sub-Divisional Magistrate, Patna Sadar against the appelhnt. In the complaint it was alleged that the appellant has committed offences under Sections 167, 465 466 and 471 of the Penal Code, The Sub-Divisional Magistrate after taking cognizance of the offences alleged to have been committed by the appellant, transferred the case to the file of the Magistrate, !st Class, Patna, initiating two commitment proceedings in respect of the aJl.eed\n\noffences said to have been committed in each of the B. L. Cases.\n\nAfter examining the witnesses and perusing the documents, the Magistrate, !st Class, committed the appellant to the Court of Sessions in both cases for trial under Sections 167, 466 and 471 of\n\n.. the Penal Code.\n\nThe two Sessions Cases were accordingly started in the court of the Assistant Sessions Judge, Patna and charges were framed\n\n~UPRBME COURT REPORTS [1971] SUPP. s.c.R.\n\nagainst the appellant under Sections 167, 466 and 471 of the Penal Code.\n\nThe appellant filed two petitions before the Assistant Sessions Judge that trial could not be proceeded with as the mandatory provisions of Sections 195 and 476 of the Code have not been com plied with.\n\nIn fact his prayer in the applications filed before the Assistant Sessions Judge was that he should be acquitted.\n\nThe Assistant Sessions Judge by his order dated November 22, 1966 rejected the applications filed by the appellant and declined to consider the competency of trial u a preliminary issue at that stage.\n\nThe appellant filed Criminal Revisions before the Sessions Judge against the order made by the Assistant Sessions Judge with a prayer to quash also the commitment orders of the Magistrate.\n\nHe had also made a prayer for a reference to be made to the High Court to quash the proceedings pending before the Assistant Sessions Judge.\n\nThe Sessions Judge rejected the applications filed by the appellant.\n\nIn consequence the appellant filed before the High Court Criminal Revision Nos. 345 and 346 of 1968 against the orders of the Sessions Judge declining to quash the commitment proceedings and to IJ1aking a reference to the High Court in the two Sessions Cases against the appellant. He also filed Crimi nal Miscellaneous Petitions Nos. 248 and 249 of '1968 to quash the orders of the Magistrate, !st Class to stand his trial for offences under Sections 167, 466 and 471 of the Penal Code.\n\nThe High Court rejected both the Criminal Revisions and the Criminal Miscellaneous Petitions.\n\nMr. Jyoti Narayan, learned counsel for the appellant, has urged that the entire proceedings initiated against the appellant were without jurisdiction inasmuch as the Sub-Divisional Magistrate was not competent to take cognizance of the complaint filed by the Senior District Prosecutor.\n\nAccording to the learned counsel the authority to file the complaint against the appellant was the court to which the appellant was subordinate at the material time as is mandatory under Section 195 (I) (b) and (c) of the Code.\n\nHis further contention is that there has been a violation of the mandatory provisions of Section 476 of the Code. The mere sanction given by the State Government under Setcion 197 of the Code is not, in the circumstances, sufficient to give jurisdiction to the Magistrate to take cognizance of the offences alleged against the appellant.\n\nOn the other hand, Mr. R. C. Prasad, learned counsel for the State urged that the offences alleged against the appellant are under Sections 167, 466 and 471 of the Penal Code. None of the>~ sections are covered by Section 195(1) (b) of the Code.\n\nSection 466\n\nGOVIND v. BIHAii. (Vaidialingam, J.)\n\nis not covereJ by Clause (c) of Section 195(1) of the Code.\n\nSection 471, is, no doubt, taken in by the said clause, but in order to attract that clause it is necessary that the offence alleged should have been committed \"by a party to any proceeding in any court ............... \". If the conditions mentioned in clause (c) are tified,\n\nthen the complaint should be made in writing by the court before whom the offence is committed or by some other court to which such court is subordinate. The appellant can by no means be characterized to be a pariy to any proceeding in any court, in respect of the offence under Section 471 alleged against him. Therefore, there is no violation of either Clause (b) or (c) of Section 195 (!) of the Code.\n\nSection 476 of the Code also, according to Mr.\n\nPrasad, does not apply as the conditions stated therein do not .exist in the present case.\n\nBriefly the allegations in the complaint are as follows. The appellant has recorded serious allegations in the order sheets against the then District Magistrate, Patna, Sri R. C. Sinha and the counsel Sri Mathura Sharma, appearing on behalf of the accused in the B. L. Cases.\n\nThe said allegations and certain other entries were inlerpolations and forgery. The a; pellant has framed incorrect documents with intent to cause in1ury and he has committed forgery in judicial records\"_and used the forged documents as genuine with intent to cause injury to others.\n\nThe said entries, interpolations and forgeries have been committed by the appellant between November 7, 1963 and November 11, 1963 after the appellant received the order dated November 6, 1963 of the District Magistrate Patna directing him to submit a report in respect of the allegations made against him in the transfer applications filed by the parties in the B. L. Cases.\n\nThe complaint alleged that the appellant has committed offences under Sections 167, 465, 466 and 471 of the Penal Code.\n\nWe have already indicated that the appellant has been committed to the Sessions to take his trial only under Sections 167, 466 and 4 71 of the Penal Code.\n\nAccording to Mr. Jyoti Narayan, the point of time at which the .legalit¥ of the cognince taen by the Magistrate to be adjudged 1s the time when cogmzance 1s actually taken under Section 190 G of the Code and applying that test in the present case, it will be seen that there has been a breach of Seeton 195 (!) (b) and (c) and Section 476 of the Code.\n\nThe proposition that the point of time at which the legality of the cognizance taken is to be adjudge~ is the ime when cognizance is actually taken is laid down by 1~1s Court tn M. L. Sethi v. R. P. Kapur and another ('). The H Magistrate has normally got jurisdiction to take cognizance under - - (IJ f1967] l S. C. R. 520.\n\nSUPRBMB COURT REPORTS\n\n(1971] SUPP. S.C.R.\n\nSection 190 of the Code in the circumstances enumerated therein.\n\nSection 195 is in fact a limitation on the unfettered powers of a magistrate to take cognizance under Seeton 190 of the Code. Therefore, at the stage when the magistrate is taking cognizance under Section 190, he must examine the facts of the complaint before him and determine whether his power of taking cognizance under Section 190 has or has not been taken away by any of the clauses\n\n(a) to (c) of Section 195 (1).\n\nTherefore, it is needless to state that if there is a non-compliance with the provisions of Section 195, the.Magistrate will have no jurisdiction to take cognizance of any of the offences enumerated therein. ·\n\nMr. Jyoti Narayan on the basis of the decision of this Court reported in Basir-Ul-Huq and others v. The State of West Bengal(') urged that though Section 195 made no bar to the trial of an accused person for a distinct offence disclosed by same facts and which is not included within the ambit of that section, the provisions of that section cannot be evaded by resorting to device of charging a person with an offence to which that section does not apply.\n\nWe have already referred to the sections of the Penal Code under which the appellant has been charged. They are sections 167, 466 and 471.\n\nAdmittedly, none of these sections a:e covered by Clause (b) of Section 195 (1).\n\nTherefore clause (b) prima fade will not in term bar the jurisdiction of the magistrate to take cognizance of the offence under Section 167 of the Penal Code.\n\nThe contention of Mr. Jyoti Narayan is that the various averments made in the complaint will really show that the nature of the offence, if any, committed by the appellant will really come under Section 192 and 193 I. P. C.\n\nIf the charge has been framed under Section 193 of the Penal Code, it will squarely fall under Clause (b) of Section 195(1) of the Code.\n\nWith a view to really evade the bar of Clause (b) of Sec.lion 195(1), the prosecution has adopted the device of not charging the appellant under Section 193\n\nof the Penal Code, though in effect they want him to be convicted for an offence under Section 193 of .the Penal Code.\n\nWe are not inclined to accept this contention of the learned counsel.\n\nThe High Court after a careful analysis of the allegations made in the complaint and the materials placed before it and after a very elaborate consideration of the matter has come to the conclusion that the case of the prosecution that the charge framed under Section 167 of the Penal Code is justified.\n\nThe High Court has considered the ingredients of the offence under Sections 192 and 193 as well as Section 167 of the Penal Code.\n\nAs the charge has been framed under Section 167, the bar under Section 195 (1)\n\n(b) or (c) of the Code bas no application.\n\nWe agree with the view\n\n(1) (1953] S. C.R. 836,\n\nGOVJND v. BIHAR (Vaidialingam, J.)\n\nof the High Court that Section 195 (!) (b) or (c) is no bar to the Magistrate taking cognizance for an offence under Section 167.\n\nThe offence under Section 466 of the Penal Code is, admittedly, not covered by Clause (b) or Clause (c) of Section 195 (I) of the Code.\n\nTherefore, that section does not operate as a bar in respect of this offence.\n\nSection 471 of the Penal Code, is no doubt is taken in by Clause (c) of Section 195 (!).\n\nBut for Clause (c) to operate as a bar to taking cognizance for an offence under Section 471, it is essential that the offence must be alleged to have been committed .. by a party to -any proceeding in any court , ........ \" According to Mr. Jyoti Narayan, the appellant must be considered to be a party to the transfer applications filed by the persons concerned in the B. L. Cases, which transfer applications were pending before the District Magistrate.\n\nAllegations have been made against the appellant in the transfer applications and the District Magistrate has called for a report from the appellant in respect of those allegations.\n\nThe Additional District Magistrate has inquired into the allegations made in. the transfer applications and given a decision transferring the cases from the file of the appellant to another Magistrate.\n\nAll the above circumstances, according to the learned counsel, will make the appellant a party to the proceedings connected with the transfer applications, which were pending ' before the Additional District Magistrate.\n\nWe have no hesitation to reject the contention of the learned counset Merely on the basis that the applications for transfer of certain cases pending before the appellant had been filed making allegation against the appellant will not -make the appellant a party to those proceedings.\n\nHe was functioning as a Magistraie and he has no personal interest in the outcome of the transfer applications, No doubt when the allegations of prejudice have been made against the appellant, it was his duty as a subordinate court and as an officer against whom allegations have been made to offer explanations in his report sent to by his superior or appellate authority, namely, the Additional District Magistrate. Therefore, Clause (c) of Section 195 (1) again does not bar the jurisdiction of the Magistrate to take cognizance of the offence under Section 471 of the Penal Code.\n\n. The further contention of Mr. Jyoti Narayan is based upon Sectlon 476 of the Code, According to him the Additional District Magistrate has inquired into the applications filed by the counsel for the parties in the B. L. Cases filed against the appellant under Sections 466 and 471 I. P. C. The Additional District\n\nMagistrate inquired intothe matter behind the back of the appellant and after examining the witnesses passed an order on December 16, 1963 holding the appellant guilty of the said offences and\n\nforwRrded a copy of the order to the State Government to sanction criminal and administrative action being taken again:; t the appellant.\n\nThe complaint filed in this case suffers from an infir mity inasmuch as it has not been filed by the Additional District Magistrate.\n\nWe are not inclined to accept this contention either.\n\nWe have already held that Section 195 (I) (b) or (c) of the Code does not apply to the case of the appellant.\n\nIf that is so, that finding is enough to hold that Section 476 of the Code does not come into picture.\n\nEven otherwise, Section 476 of the Code will not apply as we will presently show. The records, no doubt, show that the counsel appearing for the parties in the B. L. Cases in connection with the transfer applications filed by them, filed an application before the Additional District Magistrate that action should be taken by him to file a complaint against the appellant for offences under Sections 467 and 471 of the Penal Code. It is ai3o seen\n\nthat the Additional District Magistrate has examined certain witnesses and ultimately passed an order on December 16, 1963. This order is a combined order dealing with transfer applications as well as the application filed by the lawyer for filing a complaint\n\nagainst the appellant.\n\nThe Additional District Magistrate has. held that prima facie the appellant must be considered to be guilty of having committed forgery and interpolations in the order sheets and therefore there is a good ground for transferring the B. L.\n\nCases from his file to another magistrate. Accordingly, the Additional' District Magistrate transferred the B. L. Cases to the file of the Sub-Divisional Magistrate, Patna Sadar.\n\nHe had directed that a copy of the order be sent to the State Government for considering the question of giving sanction to take criminal and administrative action against the appellant It may appear prlma facie that the Additional District Magistrate was conducting a preliminary inquiry under Section 476 (1) of the Code. But a perusal of the order passed by the Additional District Magistrate will clearly show that all the findings recorded against the appellant were only reasons for tran•fering the B. L. Cases from the file of the appellaint He himself has not taken any action as contem plated under Section 476 of the Code.\n\nHe was merely dealing with the transfer application and incidentally also with the applications filed by the lawyer.\n\nIt was on the basis of this order that the State Government ultimately gave the sanction.\n\nThe validity of the sanction given by the State Government as such is not chal\n\nlenged.\n\nThe contention is that over and above the sanction given by the State Government, the provisions of Section 195 (1) _urt have accepted his testimony as being substantially true. We see no reason to differ from that conclusion.\n\nIn the result this appeal fai~ and the same is dismissed.\n\nThe appellants are on bail. They shall now surrender to the authorities and undergo the remaining portion of the sentence imposed on them.\n\n795.\n\nG. C.\n\nAppeal dismi.ni!d.", "total_entities": 27, "entities": [{"text": "YUSUF & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "YUSUF & ANR", "offset_not_found": false}}, {"text": "STATE OF BIHAR", "label": "RESPONDENT", "start_char": 19, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 48, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 86, "end_char": 107, "source": "regex", "metadata": {}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 109, "end_char": 117, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 542, "end_char": 559, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 34", "label": "PROVISION", "start_char": 993, "end_char": 998, "source": "regex", "metadata": {"linked_statute_text": "Four of the nine accused were acquitted by the trial court and the others were convicted under several provisions of the Indian Penal Code", "statute": "Four of the nine accused were acquitted by the trial court and the others were convicted under several provisions of the Indian Penal Code"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 1101, "end_char": 1107, "source": "regex", "metadata": {"linked_statute_text": "Four of the nine accused were acquitted by the trial court and the others were convicted under several provisions of the Indian Penal Code", "statute": "Four of the nine accused were acquitted by the trial court and the others were convicted under several provisions of the Indian Penal Code"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 1118, "end_char": 1123, "source": "regex", "metadata": {"linked_statute_text": "Four of the nine accused were acquitted by the trial court and the others were convicted under several provisions of the Indian Penal Code", "statute": "Four of the nine accused were acquitted by the trial court and the others were convicted under several provisions of the Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 1151, "end_char": 1156, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 307", "label": "PROVISION", "start_char": 1211, "end_char": 1217, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 1218, "end_char": 1223, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s 31", "label": "PROVISION", "start_char": 1235, "end_char": 1239, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 324", "label": "PROVISION", "start_char": 1262, "end_char": 1268, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 1269, "end_char": 1274, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3694, "end_char": 3711, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 307", "label": "PROVISION", "start_char": 3952, "end_char": 3958, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 3969, "end_char": 3974, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3976, "end_char": 3981, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 326", "label": "PROVISION", "start_char": 3996, "end_char": 4002, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 4167, "end_char": 4173, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4198, "end_char": 4203, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 324", "label": "PROVISION", "start_char": 4218, "end_char": 4224, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4227, "end_char": 4232, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34", "label": "PROVISION", "start_char": 6495, "end_char": 6500, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6502, "end_char": 6507, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 136(1)", "label": "PROVISION", "start_char": 7864, "end_char": 7875, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]} {"document_id": "1971_1_796_809_EN", "year": 1971, "text": "INDRANARA YAN\n\n11.\n\nROOP NARAYAN & ANR.\n\nMay 7, 1971\n\n[K. S. HEGDE AND A. N. GROVER, JJ.)\n\nHindu Joint family-Member separating jrom-Prtsumptiom and proof.\n\nTransfer of Property-Gift-Amounts deposited in fixed deposits in joint names of father and son-Property of father-If and when gift in favour of son can be inferred.\n\nThe appellant filed a suit against the first respondent for partition of their deceased father's properties. The suit was partly decreed by the High\n\nCourt in appeal. Both parties appealed to this Court. The first respondent contended inter a/ia that: (I) the appellant had separated himself from the family as far back as 1936 and therefore was not entitled to any share; and\n\n(2) the amounts of the fixed deposits in a Bank and a Company had been gifted away to him by the father since the father, a few days before his death, instructed the Bank and the Company to transfer the fixed deposit amounts from his single name to the joint names of himself and the first respondent.\n\nHELD: (1) The law presumes that the members of a Hindu family arc joint, a presumption which is stronger in the case of a father and his sons. and it is for the party who plead! that a member of the family ad separated himself to prove it satisfactorily. For the existence of a joint family, the family as ouch need not possess any property since iUs not property, but relationship, that knits the members of a family toielher.,\n\nJn the present case, the appellant, the first respondent, and their father were members of a joint family, though the family possessed no property, all the properties being the self-acquired properties of the father. There was a great deal of disagreement between the appellant and bis f'lther, the former expressing now and then that he was not, interested in his father's estate, and the latter threatening to disinherit the appellant.\n\nBut apart from such mere emotional outbursts there was no evidence at 3.ll to show that be had at any time made any unequivocal declaration that the appellant had separated himself from bis family nor had be communica~ any such intention to separate himscf either to the karta or to any of the members of the family.\n\n[804E-G]\n\n(2) (a) There was no evidence to show the genuineness of the letters alleged to have been written by the father requesting the Bank and the Company to transfer the deposits in his name to the joint names of him self and the first respondent\n\n(b) But even if such letters were in fact written by the father, there was no evidence of the general intention on the part of the father to aive those amounts exclusively to the first respondent.\n\nIn fact about two months before his death the father executed a will disinheriting the appellant but revoked it very soon thereafter. Therefore a mere dit.ection to the bank to put the amounts in the joint names to himself and the\n\nINDRANARAYAN V. llOQPNARAYAN (Hegde, J.)\n\nfirst respondent given by the father when he was seriously ill might be only a prudent step for facilitating collection, and does not show an in tention to make over the amounts to the first respondent. Since the father continued to be the owner till his death and there was nothing to show that the father intended that the amounts should go to the first respondent exclusively and in pursuance of such an intention transferred the deposits io the joint names of himself and the first respondent, there was neither a gift nor an advancement. [807F.]\n\nGuran Ditta v. Ram Datta, I.LR. 55 Cal. 944(P.C.) Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath, L.R. 71 I.A. 197, Young Sealey,\n\n[1949] 1 All. E.R. 92, Mrs. Avis Fitzalah Cowdrey v. Imperial Bank of India, A.I.R. 1956 Mad. 56 and Dalvi Nagarajamma v. Stale Bank of India, A.I.R. 1%2 A.P. 260, referred to.\n\n' CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1096 and 1097 of 1969.\n\nAppeals from the judgment and decree dated March 24, 1964 of the Madhya Pradesh High Court, Indore Bench in first appeal No. 36 of 1959.\n\nM. V. Paranjpe, K. Rajendra Chodhary and K. R. Chau- D dhuri, for the appellant (in C. A. No. 1096 of 1969) and the respondent (in C.A. No. 1097 of 1969).\n\nS. T. Desai', B. Datta, P. C. Bhartari and J. B. Dadachanji, for the respondents (in C.A. No. I 096 of J 969) and appellants (in C.A. No. 1097 of 1969).\n\nThe Judgment of the Court was delivered by\n\nHegde, J.-These appeals arise from a partition suit between two brothers. The plaintiff is the elder brother and the I st defendant is his younger brother. The second defendant is the wife of the !st defendant. The plaintiff and the I st defendant are the sons of Dr. Sudarshan Pandit, a medical practitioner who practised at Indore. Dr. Pandit had extensive practice. He died on April 6, 1949 leaving behind him extensive properties. His wife had died in 1918. Dr. Pandit had three daughters. We are not concerned with them in this case. The contest is mainly between the plaintiff and the !st defendant. There is also a dispute as regards the ownership of a deposit of Rs. 50,000 made by Dr. Pandit in the name of the second defendant.\n\nThe contention of the !st defendant was that tbe plaintiff had separated himself from the rest of the family as far back as 1936 and therefore he is not entitled to any share in the suit properties. Further he took the plea that deposits of Rs. 41.000 in the Bank of Indore and Rs. 50,000 in Binod Mills which stood in the name of Dr. Pandit till about the third week of March, 1949 hc1 been gifted to him. According to him Dr. Pandit gifted the\n\nSUPRBMl! COURT REPORTS [1971] SUPP. s.c.R.\n\nfour deposits totalling Rs. 41,000 in the Bank of Indore on March 25, 1949 and the deposit of Rs. 50,000 in the Binod Mills on March 30, 1949. The deposit of Rs. 50,000 made by Dr. Pandit in the name of the second defendant was claimed by the second defendant as her exclusive property. She claimed that amount as a gift from her father-in-law.\n\nThe properties with which we are concerned in this suit have been held to be the self-acquired properties of Dr. Pandit. That finding was not questioned before us.\n\nThe trial court dismissed the plaintiff's suit on • the sole ground that he had separated himself from his father as far back as 1936 whereas the 1st defendant continued to be joint with his father. It held that as he was separate from his father the plaintiff had no right in the properties left behind by Dr. Pandit. In appeal the High Court substantially reversed the decree of the trial court. The High Court came to the conclusion that there was no evidence to show that the plaintiff had separated himself from the family. It also came to the conclusion that the deposits of Rs. 91,000 referred to earlier are the properties of the joint family and hence divisible.\n\nBut it upheld the claim of the I st defendant in respect of a sum of Rs. 25,000 which had been made over to him by his father on March 21, 1949. In respect of the deposit of Rs. 50,000 in the name of the second defendant, the High Court came to the conclusion that it was her exclusive property. The !st defendant has appealed against the High Court's decree to the extent it went against him and the plaintiff has appealed against the finding of the High Court that the sum of Rs. 25,000 given to the !st defendant on March 21, 1949 is his exclusive property.\n\nHe also challenged the finding of the IDgh Court that the deposit of Rs. 50,000 in the name of the second defendant is her exclusive property.\n\nBoth the appeals were brought on the strength of the certificates issued by the High Court.\n\nDr. Pandit originally hailed from Jaora, an Indian State.\n\nHe practised at Indore.\n\nHe had extensive practice in Central India. He lost his w'ife in 1918 leaving behind her three daughters and two sons. The eldest son, the plaintiff in this case was hardly 7 years old when his mother died and the younger son was three years' old. Dr. Pandit appears to have been extremely anxious that his eldest son should step into his shoes and should become an eminent medical practitioner. In 1927, he took the plaintiff, when he was hardly 16 years old to England and put bim to school. He gave' him liberal allowance in the Initial stages. It appeara from the record that he was sending him annually about £300.\n\nUnfortunately the P.laintiff did not make much progress\n\nINQRANARAYAN v. ROOP NARAYAN (Hegde, J.) 799\n\nin his studies. Dr. Pandit was disappointed. The evidence discloses that at first he tried to induce the plaintiff to work hard.\n\nBut the plaintiff showed no progress. It is clear from the correspondence that passed between the father and the son that the father was feeling that the son was not applying himself seriously to the studies but the son was feeling that he is being goaded .to -do something for which he was not cut out. Gradually Dr. Pandit began to adopt a stiffer attitude towards the plaintiff.\n\nHe was apprehending that his dreams were not coming true, but he was not prepared to retrace his steps. Evidently he thought that what he could not achieve by persuasion, he could do by adopting a stiffer attitude. Thereafter the letters that he wrote to the plaintiff were couched in rude language. He went on calling the plain- ' tiff a waster. one lacking in efforts and in short a wholly useless character. It is clear from his letters that Dr. Pandit was under the impression that the plaintiff was lacking in efforts and he could make him to put in his best by an extra doze of rudeness.\n\nPlaintiff's reactions to his father's biting letters was one of bitterness and hostility. He wrote to his father that he was a tyrant and that he was lacking in affection. He caJ!ed him a worshipper 'of Mammon. He attributed his failures to his father's unkind\n\nness.\n\nThe correspondence that passed between Dr. Pandit and the plaintiff from 1936 to 1940 make a very sad reading. There is no doubt that Dr. Pandit was an affectionate father. His one all absorbing ambition was that his son should excel him. Things did not work out in the way he wanted. But he was not the person to reconcile him to the inevitable and chalk out a new path for his son. His obsession of making his son a good medical practitioner was such that he just ignored the realities and went on driving the plaintiff to desperation. The plaintiff was an ob- stinate type. He was blind to his father's affection. He appears to have been unduly touched by his father's harsh words. Possibly because of want of parental affection in the formative period of life he was insolent, resentful and insulting. to hJs father.\n\nHe repeatedly wrote 'to his father that his fife was blasted by him.\n\nThere is no doubt that the plaintiff was a highly sensitive type.\n\nHe was no less rude than his father.\n\nIt is unnecessary to refer in detail to the various letters that passed between the father and the son which have been produced into court.\n\nIn the initial stages Dr. Pandit was sending to his son about £300 a year. Later on he cut it down to £200 a year.\n\nEvidently Dr. Pandit thought that if the allowance of his son is cut down, he would give more attention to his studies. But that circumstance again appears to have had an adverse effect.\n\nThe plaintiff was evidently unable to make two ends meet with the allowance that he was gefting. From his letters it is. c\\ear that thereafter he was more worried about his day 'to-clay living than\n\nSUPREME COURT IlEPORT\" [1971] SUPP. s.c.R.\n\nhis studies. He began to send cables after cables to his father asking for more remittances but the father continued to be strict.\n\nObviously Dr. Pandit was a very strong willed man. On March 6.\n\n1936, Dr. Pandit in his letter (Ex. D-122) to the plaintiff wrote thus:\n\n\"You may return you may not return has nothing to do with me. But on your return you cannot stay so long as I Jive in our family and wish to disinherit you from all your claims in future from what little share you could have.\"\n\nIt is seen from that letter that the plaintiff had asked hi; father to give him at least an allowance of £4 / 6 S. a week. In 1936 Dr. Pandit made it clear to the plaintiff that he would provide him with funds only for three more years to complete his\n\nstudies and thereafter all remittances would be stopped.\n\nThe correspondence between Dr. Pandit and the plaintiff between 1936 to I 940 show that the war of words between the father and the son continued. Even after 1936 the plaintiff made little progress in his studies. In 1940 Dr. Pandit wanted the plaintiff to come back from England and for that purpose he deposited w'itb.\n\nThomas Cook & Co., sufficient amount for his passage home with instructions to them not to pay that amount to the plaintiff but only to provide him with the passage. The plaintiff refused to return to India. Thereafter Dr. Pandit is said to have stopped remittances to the plaintiff. But remittances to the plaintiff v•ere made by the !st defendant as well as by his sister Dr. Shanti Karnath. There is reason to believe that those remittances were made in the names of the !st defendant and Dr. Shanti Karnath by Dr. Pandit himself. Ultimately the plaintiff came back to India in 1948. At that time the !st defendant was working at Kolhapur. The plaintiff did not go to Indore where his father was living but he went to Kolhapur where his brother was stationed. Thereafter he got a job in Calcutta and. he went to Calcutta.\n\nThe plaintiff's relationship with the !st defendant and his sisters were extremely cordial as disclosed by the letters that passed between the plaintiff and the I st defendant and his Sisters.\n\nWhen the plaintiff returned to India evidently Dr. Pandit was very anxious tci meet him but he was unwilling to show to his son that he was the first to yield. He wanted that the plaintiff should repent and make amends. The plaintiff was too arrogant a person to submit to his father. The first defendant, evidently at the instance of his father tried to induce the plaintiff to meet his fatb.er. He wrote to him to say that mistakes had been made by both sides and the time has come for both of them to forget the oast. But the plaintiff was not sure that his father had softened.\n\nHe wanted to be satisfied that his father had in fact repented for his folly.\n\nWhen things stood thus Dr. Pandit fell ill with an\n\nIllDllANUATAN r. 1.o- tion must have been typed on a blank letter-head of Dr. Pandit\n\nbearing his signature.\n\nThere is some basis for this contention.\n\nThe plaintiff has been able to produce two blank letter-heads of Dr. Pandit bearing hJc signatures. There is reason to think that Dr. Pandit was signing on blank letter-heads for one reason or the other. The signature that is found on the letter sent to Binod Mills Ltd. shows that the signatory's hand was firm and not shaky.\n\nThis letter_ is said to have been sent on 30th March 1949, hardly six days before Dr. Pandit's death. The medical evidence shows that at about that time Dr. Pandit was passing through critical days. At this juncture it is necessary to recall the fact that when Dr. Pandit sent the cheque given to him by R. D. Joshi on March 21, 1949, after endorsing the same to the bank along with r.is cheque to defendant No. I, the Manager not being sure of the genuineness of those signatures as they appeared to have been made by a shaky hand sent his assistant to the Nursing Home to find out from Dr. Pandit aa to whether those signatures were his.\n\nDr. Pandit's hands could not have become more firm nine days after the 21st of March. We have seen the signature on the letter said to have been sent by Dr. Pandit to the Binod Mills on the 30th of. March. It appears to have been made by a perfectly firm hand.\n\nFurther as seen from the medical evidence Dr. Pandit's mental condition was likely to have been far from satisfactory on 30th March. Dr. Akbarali deposed that he would be surprised that if someone told him that Dr. Pandit signed any paper during the week before he died. Hence we are unable to pronounce in favour of the genuineness of that letter. Even if we had come to the conclusion that the letter is genuine it affords no evidence of the fact that Dr. Pandit wanted to make over the deposit to tM\n\n!st defendant. The letter says that the transfer to joint names is desired because of Dr. Pandit's illness. Hence the case as regards the alleged transfer of the deposit in question does not stand on a better footing than that relating to the transfer of the deposits in the bank of Indore.\n\nNow coming to the appeal filed by the plaintiff, we shall first take up the cheque issued by Dr. Pandit to the !st defendant on March 21, 1949. There is no doubt as regards the genuineness of that cheque. There is reliable evidence to show that on that day Dr. Pandit was quite conscious. . The circumstan~ 11nder which the transfer was made clearly indicate that Dr. Pandit wanted to give that amount to the l st defendant. The High Court has come to the conclusion that it was a gift by Dr. Pandit to his son. The surrounding circumstances of the case .to which reference has been made earlier support that concluSton.\n\nThere\n\nINDRANARAYAN •• ROOP NARi\\YAN (Hegde, J.)\n\nis nothing surprising if Dr. Pandit wanted to give a sum of Rs. 25,000 to his son who has been very helpful to him.\n\nSo far as the deposit in the name of the second defendant is concerned, the High Court's finding in our opinion is unassailable. It ia clear from the evidence that Dr. Pandit was very fond of his daughter-in-Jaw.\n\nThe evidence of the secontl defendant has been believed by the High Court. Out of the amount received from the Nawab of Jaora, Dr. Pandit deposited Rs. 50,000 in his own name and Rs. 50,000 in his daughter-in-law's name.\n\nThereafter he wrote to. her that he has made the deposit in question.\n\nSubsequently he handed over the deposit receipt to his daughter-in-law.\n\nAll these circumstances show that Dr. Pandit wanted to give that money to his daughter-in-Jaw for whom he had great alfcction. The evidence of the second defendant that her father-in-law had made a present of Rs. 50,000 to her is clearly acceptable.\n\nThere was some controversy in tlJAl High Court as regards the jewels but all that the plaintiff's Counsel wanted us was to ..:orrect an erroneous statement of fact in the judgment of the High Court to the effect that the second defendant had filed a list of jewels that were given to her. Beyond that no other change in the judgment of the High Court was sought. It is admitted that the second defendant had not filed any list of the jewels given to her. Subject to this correction, the High Court's decision on this point is affirtned.\n\nIt was urged on behalf of the plaintiff that he had been kept . out of the estate of his father for over 22 years and therefore we may direct the !st defendant who is now in possession of the properties as court receiver to pay to him at least half the cash amount that was there at the time of. Dr. Pandit's death. This request appears to us to be a reasonable one. It is not necessary to determine at this stage theexact cash amount that was there at the time of the death of Dr. Pandit. Suffice it if we direct the !st defendant as receiver either to transfer the fixed deposits of the value of Rs. S0,000 or to 11 pay to the plaintiff a sum of Rs. 50,000 within a month from this date.\n\nThis sum will be adjusted at the time of the final decree.\n\nIn. the result both these appeals fail and they are dismissed ..\n\nUnder the circumstances of the case we direct the parties to bear their own costs in this Court.\n\n-v.P.S.\n\nAppeals dismissed.", "total_entities": 8, "entities": [{"text": "INDRANARA YAN", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "INDRANARAYAN", "offset_not_found": false}}, {"text": "ROOP NARAYAN & ANR", "label": "RESPONDENT", "start_char": 20, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "ROOP NARAYAN & ANR", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 55, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 71, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "L.R. 71 I.A. 197", "label": "CASE_CITATION", "start_char": 3570, "end_char": 3586, "source": "regex", "metadata": {}}, {"text": "S03", "label": "PROVISION", "start_char": 20317, "end_char": 20320, "source": "regex", "metadata": {"statute": null}}, {"text": "S6", "label": "PROVISION", "start_char": 34578, "end_char": 34580, "source": "regex", "metadata": {"statute": null}}, {"text": "S0", "label": "PROVISION", "start_char": 39768, "end_char": 39770, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_810_815_EN", "year": 1971, "text": "U. P. SUNNI CENTRAL WAKF l'IOARI>\n\nMd. ALIM &: ORS.\n\nMay 7, 1971\n\n[K. S. HEGDE AND A. N. GROVEi\\, 11.J\n\nUttar Pradesh Muslim Waqfs Act, 1960-Religious Enduwm.m Ai:t;. 1861 '1ct 20 of 1863-District Judge has no power to fill in vacancy on.th!!\" comnutttte constituted ultder the latter A.ct.\n\nTho Waqf of tho Durgah at Fatehpuri is one of tho Waqfa to which. the provision! of tho Uttar Pradesh Muslim Waqfs Act, 1960 applied. When vacancies arose on the committee of Management constituted under tbe Religious Endowment Act, 1861 (Act 20 of 1863) and these wore not filled by election in terms of s. 10 of this Act, tho appellant Board, constituted under the 1960 Act, filled in tho vacancies acting under tho provisions of the Act. Thereupon respondent no. 1 filed an application in tho court of tho District Juda• under Act 20 of 1863 to appoint persons to fill in tht vacancies. Tho District Judge hold that ho had the power to reconstitut• th• managing committee under s. 10 of Act 20 of 1863 and directed that the vacancies be filled in according to tho rules. Tho Hlah Court in revi• sion came to tho conclusion that there was no provision in tho 1960 Act cor rospondina to 1. 13 of Act 20 of 1863 which cast an additional respon sibility on tho committeeto keep in its custody accounts and consequently held tbat tho Committee conititutod under Act 20 of 1863 could 1till con tinuo to discharge oomo of the functions assigned to it, and the District Judge was thus competent to entertain an .application u11dor 1. 10 thoreol.\n\nHELD: Tho District Judge had no jurisdiction or power to fill hr vacancies on the Committee constituted under the provilions of Act 20> of 1863.\n\nSections 49 and SO of tho 1960 Act leave no room for doubt that ac counts, which would include books of account, and all relevant records, deeds and documents have. to be in Mutawallf• custody and he is bound to produce them for inspection by tho Board whenever oo desired and Mutawalli accordina to tho definition includes a committee of manaaement.\n\nTho Act is oolf contained and makes provision for complete ouperintondoru:e, administration and control of the Waqfs over which tho boards established under s. 10 of tho 1960 Act, have jurisdiction.\n\nTherefore, there cannot be an independent oxistelice of a committeeconstitutod under Act 20 of 1863 only for tho purpose of havini custodyof books of account particularly when the 1960 Act fully contemplatoil and provides for the maintcnadt:e, custody etc. of accounts and account books by tho mutawalli. Thero is a clear inconsistency between its 11ro visions and those of Act 20 of 1860 relatina to committees, their functioning and control. [814FHl\n\nCIVIL APPELLATE JUR.ISDICTION Civil Appeal No. 1021 of 1966.\n\nAppeal by special leave from the judgment and decree da~ September 8; 1965 of the Allahabad High Court in Civil. Revisiom No. 76 of 1964.\n\nu. p, SUNNI WAJ:P BOARD v. MOHD. ALlll (Grover,/.) 8 u\n\nC. B. Aggarwala, K. L. Hathi, Quayamuddin Shah and P. C. & Kapoor, for the appellant.\n\nM. C. Chag/a and S. S. Shukla, for respondent No. l(ii).\n\nS. K. Bagga and s. Bagga, for respondent Nos. 2(i) to (iii).\n\nThe Judgment of the Court was delivered by\n\nGrover,. J~This is an appeal by special leave from a judg ment of the Allahabad High Court made in exercise of the revi sional jurisdiction.\n\nThe appellant is a statutory board established under the provisions of s. 10 of the Uttar Pradesh Muslim Waqfs Act, 1960. hereinafter called the 'Act'. The Act applies to all waqfs which at the time of its coming into force were under the uperintendence of the Sunni Central Board and the Shia Central Board consti luted under the U.P. Muslims Waqfs Act 1936.\n\nThe present proceedings relate to the famous Durgah of Hazrat Sheikh Saleem Cbishti at Fatehpuri Sikri in the district of Agra said to have been established by Emperor Akbar. The Durgah was administered originally by the Moghuls and thereafter by the Board of Revenue established by the British Govern ment under the Bengal Regulation No. 19 of 1810. Subsequently the Religious Endowment Act 1861 (Act 20 of 1863) was passed which provided for the management of mosques, temples and other religious establishments. Section 7 of Act 20 of 1863 pro vided for the appointment and constitution of the committees which were to be appointed by the State . Government for the management of religious establishments mentioned in s. 3 of that Act Section 10 provided for election when a vacancy occurred in the committee. By G.O. dated July 7, 1925 and a subsequent notification dated February 27, 1927 rules for the election of the. managing committee were framed and a committee was formed.\n\nThe Waqf of the Durgah was registered as one of the waqfs under the superintendence of the Board as provided by s. 5 of the U. P. Muslim Waqfs Act 1936. It is common ground that the waqf is registered and it is one of the waqfs to which the provi sions of the Act would be applicable. The term of four members of the committee constituted under the provisions of Act 20 of 1863 expired in 1962 and as the vacancies were not filled in by election the President of the appellant board filled in the vacanci~ acting under the provisions of the Act Respondent No. 1 filcl an application in the court of the District Judge at Agra purporting to be an application under Act 20 of 1863 stating inter alia that the President of the appellant board had constituted a committee\n\n:812\n\nof five persons under the provisions of the Act by filling in the four vacancies. It was further averred that the provisions of the Act, particularly s. 48, did not obviate the necessity of the appointment of the committee by the District Judge under s. 10 of Act 20 of 1863. It was, therefore, prayed that the District Judge may appoint persons to fill in the vacancies. The appellant\n\nboard contested that application principally on the ground that after the enactment of the Act the .provisions of s. 10 of Act 20 of 1863 were no longer applicable.\n\nThe appellant board also maintained that the appointment of the committee by the court would be inconsistent with the appointment of a managing committee by the board under the provisions of the Act.\n\nThe District Judge by his judgement dated November 23, 1963 held that he had the power to reconstitute the managing committee under s. 10 of Act 20 of 1863. He directed that the vacancies shall be filled up according to the prescribed rules.\n\nThe appellant moved the High Court under s. 115 of the Code of Civil Procedure for revising the order of the District Judge. The High Court referred to the relevant provisions of the Act as well as Act 20 of 1863. It was of the view that for the purpose of Act 20 of 1863 mosques, temples and other religious establishments could be divided in two main groups. One was that to which the provisions of the Bengal Regulation No. 19 of 1810 or Madras Regulation No. 7 of 1817 were applicable. The other group was the one to which the provisions of these Regulations did not apply.\n\nThe first group could be sub-divided into two depending upon the mode of nomination or appointment of the trustee, manager or superintendent. Section 3 of Act 20 of 1863 applied to religious establishments falling in the sub-group in whicb the nomination of a trustee, manager or superintendent thereof was vested in, or was exercised by or was subject to the confirmation of the government or any public officer. In case of establishments covered by s. 3 it was necessary for the State Government to proceed under s. 7 and to appoint one or more committees. On the appointment of the committee the Board of Revenue and the local agents ceased to exercise the functions assigned to them under the Regulation and they were to transfer to such committee all landed or other property belonging to the establishment. After referring to the relevant provisions of the Act the learned judge held that the general power of superintendence conferred on the committee constituted under s. 7 of Act 20 of 1863 became vested in the appellant board constituted under the Act. The continuance of the committee for the general supervision of waqfs was, therefore, inconsistent with the provisions of s. 19 of !be Act and in such circumstances the corresponding provisions M Act 20 of 1863 stood repealed with the result that the committee appointed under s. 7 of that enactment could not dischae the general\n\nu. P. SUNNJ WAU BOARD Y. MOHD. ALl)l (Grover, J.)\n\npower of supervision and superintendence of waqfs to which the Act applied. However, in the opinion of the learned judge there was no provision in the Act corresponding to s. 13 of Act 20 of\n\n1863. That section casts an additional responsibility on the com mittee in that it has to keep in its custody accounts regularly submitted by the trustee, manager or superintendent of the mosque or religious establishment. Clauses (g) and (i) of s. 19(2) and s. 27 of the Act did not show any inconsistency with the provisions of s. 13 of /'.ct 20 of 1863. It was consequently held that the committee constituted under s. 7 of Act 20 of 1863 could still continue to discharge some of the functions assigned to it and the District Judge was thus competent to entertain an application under s. 10 thereof and fill the vacancy among the members of the committee.\n\nWe are unable to share the view of the High Court. On his own reasoning the learned judge could not have come to the con clusion at which he arrived, namely, that although the power of general superintendence of the waqf in question vested in the appellant board and that the committee constituted under s. 7 of Act 20 of 1863 could not exercise those powers which were exer cisable by the board a committee under the old Act could still function for the purpose of s. 13 of that Act inasmuch as such a committee would still have the custody of the accounts of the waqf.\n\nThe Act has been enacted to provide for better governance, administration and supervision of certain classes of waqf in the State of U.P. Section 3(5) defines the word \"mutawalli\" to mean:\n\n\"a manager of a waqf and includes an amin, a sajjadana shin, a khadim, naib-mutawalli and a committee of mana gement, and also includes any person who is for the time being in charge of, or administering, waqfs.\"\n\nSectioJl 10 provides for the establishment of Central Boards.\n\nSection 19 contains the unctions of the Board. Sub-s. (!) says that the Board shall do all things reasonable or necessary to ensure that the waqfs under its superintendence ar~ properly main . tained, controlled and administered and the income thereof is duly appropriated to the purpose for which they were founded or for which they exist. The following clauses of sub-s. (2) may be noticed:-\n\n\"(g) to inspect or .cause inspection of waqf proper\n\nties accounts or records or deeds and documents relating thereto ;\n\n(h) to investigate into the nature and extent of waqf properties and call, from time to tim!l,\n\naccounts and other returns and information\n\nfrom the mutawallis and give directiom for the proper administration of waqfs ;\n\n(i) to arrange for the auditing of accounts submitted or required to be submitted by the mutawallis:\n\n(k) to administer the Waqf Fund;\n\n(I) to keep regular accounts of the receipts and disbursement and submit the same to the State Government in the manner prescribed ;\n\nSection 48 relates to appointment of mutawallis and s. 49 to their duties. The mutawalli is bound to carry out all directions issued by the board and to furnish such returns and supply such infor mation as may be required by the board or the sub-<:<>mmittee from time to time. The mutawalli has also to allow inspection of waqf property, accounts or records or deeds and documents relating thereto. Under s. 50 he has to prepare every year a 1'ud\n\nget for the next financial year and submit to the board before the first day of May in every year a full and true statement of accounts.\n\nSection 85 (I) provides that nothing in any other enactment which is inconsistent with the provisions of the Act shall apply to any waqf to which the Act applied.\n\nAs has been stall'..d before, it is not disputed that the waqf of the Durgah is governed by the provisions of the Act. The en tire scheme of the Act shows that the control and supervision over the waqf is that of the board constituted under s. JO. It is the board that has full powers with regard to inspection of accounts, their auditing, administration of the waqf funds and all such matters. Sections 49 and SO leave no room for doubt that ac counts which would include books of account and all relevant records, deeds and documents have to be in MutawalJi's custody and he is bound to produce them for inspection of. the board when ever so desired. \"MutawalJi\", according to the definition, in cludes a committee of management. The Act appears to be self contained and makes provisions for complete superintendence, administration and control of the waqfs over which the boards established under s. 10 have jurisdiction. It is barely possible to envisage the independent existence of a committee constituted under Act 20 of 1863 only for the purpose of having custody of the books of account particularly when the Act fuJJy contem plates and provides for the maintenance, custody etc. of accounts and account books by the mutawalli. It is common ground that the Act was passed with the approval of the President of India.\n\nThere is a clear inooncy between its provisions and those of Act 20 of 1863 relating to committees, their functioning and .control.\n\nu. P. SUNNI WA\"U BOARD' MOHD. ALIM (Grover, J.)\n\nWe accordingly hold that the District Judge had no jurisdic- ; tion or power to fill in vacancies on the committee constituted under the provisions of Act 20 of 1863. The appeal is therefore .allowed and the orders of the High Court and the District Judge .are hereby set aside.\n\nThe application under the provisions of Act 20 of 1863 shall stand dismissed. The parties will bear their -'lwn costs in this Court.\n\nX.B.N.\n\nAppeal allowed.", "total_entities": 48, "entities": [{"text": "U. P. SUNNI CENTRAL WAKF l", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "U. P. SUNNI CENTRAL WAKF BOARD", "offset_not_found": false}}, {"text": "Md. 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SRIKANTIAH & ORS.\n\nTHE REGIONAL TRANSPORT AUTHORITY,\n\nANANTAPUR & ORS.\n\nMay 7, 1971\n\n[S. M. SIICRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM, P. JAGAN\n\nMOHAN REDDY AND I. D. DUA, JJ.]\n\nMadras Motor Vehicles (Taxation of Passengers and Good•) Act 16 of 1952 and The Motor Vehicles (Taxation of Passengers Goods) A.ndhra Pradesh (Amendment) Act 1959-Notification issued under s. 43 of A.ct authorising enhancement of fares by operators-No consequential amend~ ment made in permits held by operators-Once NotificatiOn is issued under s. 43 the conditions of permits stand statutorily amended by' virtue of s. 59\n\n(3) (c).\n\nThe Madras Motor Vehicles (Taxation of Passengers and Goods) Act 1952 became applicable to the State of Andhra and subsequenUy to Andhra\n\nPradesh when the respective reorganisation of States took place in 1953 and 1956. In 1959 the Andhra Pradesh legislature enacted the Motor Vehi cles (Thxation of Passengers and Goods) Andhra Pradesh (Amendment) Act with a view to augmenting the revenue of the State. By this Act the rates in respect of state carriages as well as good9 vehicles were increased. The Act came into force with effect from 8th May 1959. On 7th May 1959 by G.O. Ms. No. 1077 the State Transport Authority was directed by the Government to fix maximum fares inclusive of the leviable ta'X. under the Act for the state carriages in the State of Andhra Pradesh. The 1959 amendment was struck down by the High Court The legislature there after passed Act 34 of 1961 by validating the levy under the Act which bad been struck down by the High Court and also for imposition of a surcharge. The operators again questioned the Amendment Act of 1961 on the ground that they had not collected the fares on the enhanced rates fixed by the Transport Authority because by the conditions of their permit they were precluded from collecting the fares at a rate higher than 7 t pies or 4 NP per passenger per mile.\n\nIn view of the fact that the Regional Transport Authorities had not taken action to modify that conditk, n suitably they could not collect .this amount and therefore were not liable to pay surcharge at enhan, ced rates. The High Court held that the directions issued by the Government in G.O. Ms. No. 1077 of 7th May 1959 pursuant to which the Regional Transport Authority by its proceedings dated 12th May 1959 called upon the Regional Transport Officers to notify the operators and which the said officers had notified authorising them to collect the enhanced fares was sufficient authorisation for them to collect the enhanced fares as if the fare tables had been amended. The operators appealed to this Court. The constitutionality of the surcharge having been upheld by this Court in Nazeeria Motor Service etc. etc. v. StaJe of Andhra Pradesh & Anr., (1970r 2 S.C.R. 52, the only question that survived for consideration was whether there was any impediment preventina: the operators from collectina the enharced fares without the conditions of the per mit being amended.\n\nHELD : In view of the direction• given by the Government in it• notification under s. 43 the Regional Transport Authority called upon the Regional Transport Ofticers to notify the operators to collect the enhonced\n\ns. SRIKANTIA!I v,.l\\BGI01'\\AL TRANSPORT (Jaganmohan Reddy. J.)\n\nfares and accordingly the officers concerned in compliance with these dircc~ tion• notified the operators. Once the provisions of section 43(1)(i) and 44(4) are complied with section 59(3) (c) comes into play and it has the effect of incorporating the maximum fares as notified includina the tax Jeviable, as a condition of the permit. This being the lcsal position there was no justification for the contention that the collection by the operaton of the enham:ed fares without the table of fares being amended would en tail the cancellation of the permits. [820G-H]\n\nMadhya Pradesh Transport Co. Private Ltd. v. State of MadhyQ Pra desh, A.l.R. (Vol. 49) 1962 M.P. 108, distin&uished. .\n\nCML APPELLATE JURISDICTION : Civil Appeal No. 1332 of 1968.\n\nAppeal from the judgment and order dated February 3, c 1964 of the Andhra Pradesh High Court in Writ Petition No. 201 of 1963.\n\nK. Mangachari, K. R. Chaudhuri and K. Rajendra Cltdudhury, for the appellants. · · ·\n\nP. Ram Reddy and G. S. Rama Rao, for the respondent. •\n\nThe Judgment of the Court was delivered by\n\nP. Japnmoban Reddy, J.-This Appeal is 'by a Certificate against the Judgment of the Andhra PradlilllHigh Court\n\ngiven in a batch of Writ. Petitions .of. which ttif '.Writ Petition giving rise to this Appeal ..vas one. The High Cot!rt while dismissing the Writ Petitions gave certain directions to which we will refer later.\n\nA few facts may be stated to appreciate the matters in issue in this appeal. The Madras Motor Vehicles cr.axation of Passengers and Goods) Act (Act XVI of 1952) became applicable to the State of Andhra and. subsequently to the Alldhra Pradesh when the respective reorganisation of. States took place in 1953 and 1956. In 1959 the Andhra Prapesh legislature enacted the Motor Vehicles (Taxation of Passengers and Goods) Andhra Pradesh (Amendment) Act with a view to augment the revenue\n\nof the State. By this amendment Act the rates had been increased in respect of State carriages as well as in respect of goods vehicles. It is not necessary to notice what those rates are exeept to say that under sub-section (2) of Section 1 of the Madras Motor Vehicle (Taxation of Passengers and Goods) Andhra Pradesh (Amendment) Act 1959, the Govt. of Andhra Pradesh appointed the 8th May 1959 as the date on which the State Act came into force.\n\nOn 7th May 1959 by G.0. Ms. No. 1077 the State Transport Authority was directed by the Govt. . to fix maximum fares inclusive of the Ieviable tax under the Act for the\n\n52-1 s. a. India/71\n\nSUPREME COURT REPORTS p97 l] SUPP. S.C.R.\n\nstate carriages in the State of Andhra Pradesh whicc immediately before the !st November 1956 were comprised in the State of Andhra. The Andhra Pradesh Amendment having wme into force it was challenged in a batch of Writ Petitions in the High Court of Andhra Pradesh and that Court had struck down the Act as being un-constitutional. The legislature thereafter passed Act 34 of 1961 by validating the levy under the Act which was struck down by the High Court and also for imposition of surcharge from the different dates from the date on which it came into force namely from the 3rd November 1961. The operators again questioned the Amendment Act of 1961 on the ground that they had not collected the fares on the enhanced rates fixed by the Transport Authority because by the conditions of their permit they were precluded from collecting the fares at a rate higher than 7~· pies or 4 NP per passenger per mile.\n\nIn view of the fact that the Regional Transport Authorities had not taken. action to modify that condition suitably they could not collect this amount and therefore were not liable to pay surcharge a! the enhanced rates. This contention was negatived by the High Court which while rejecting the Writ Petitions on that ground none-the-less directed that the Respondents will not be entitled to payment or collect the enhanced surcharge from the operators for the month of May 1959 which the Counsel for the Government had stated on instruction that the Govt. will not collect.\n\nThe point which is urged before us, as was urged in the High Court is whether the enhanced surcharge became operative and payable immediately on the coming into force of the 1961 Act or was it necessary to amend the conditions of the permit dealing with the fares leviable by the operators before the Government could collect the enhanced surcharge from them.\n\nThe learned Advocate for the Appellents argues relying on Madhya Pradesh Transport Co. Private Ltd. v. State of Madhya Pradesh(') that unless 'the table of fares is altered. in accordance\n\nwith the procedure laid down fares which includes taxes cannot be lawfully collected and therefore they are not law bound to pay . the enhanced surcharge. This very contention was raised before the High Court, which disagreeing with the Madhya Pradesh case cited above held that the directions issued by the Govt. in G.O. Ms. No. 1077 of 7th May 1959 persuant to which the Regional Transport Authority by its proceedings dated 12th May 1959 called upon the Regional Transport Officers to notify the operators and which the said officers had notified authorising them to collect the enhanced fares was sufficient authorisation for them to collect the enhanced fares as if the fare tables had been amended. --- ----- --. - . (!) A.LR. (Vol. 49) 1962-M. P. 108.\n\ns. SRIKANTIAH 'REGIONAL TRANSPORT (Jaganmohan Reddy, J.) 819\n\nIt may be mentioned that the constitutionality of the enhanced surcharge was upheld by this Court in Nazeeria Motor Service etc. etc. v. State of Andhra Pradesh & Anr .. Cl and therefore the only question that servives is whether there is an impediment to the operators to collect fares without the conditions of the permit being amended.\n\nThere is of course the other basic question whether the payment of the enhanced tax is dependent on the operators collecting the enhanced fares. In any case it is unnecessary to consider this .question in the view we have taken that the contention urged by the Appellant is unsustainable.\n\nThe relevant provisions of the Motor Vehicles Act clearly support the view taken by the High Court that once a Notification is issued by the Government in exercise of the powers under Section 43(l)(i) the conditions of the permit stand statntorily amended by virtue of Section 59(3)(c).\n\nThe provisions of Section 43, 44, 48 and 59 before their amendment in 1969, in so far as they are applicable to the matter under consideration arc as follows.··-\n\n43(1) A State Government ...... may from time to time by D Notification in the official Gazette issue directions to the State Transport Authority-\n\n(i) regarding the fixing of fares and freights for stage carriages, contract carriages and public carriers;\n\n44(3) A State Transport Authority shall give effect to any directions issued under Section 43 and subject to such directions and save as otherwise provided by or under this Act shall exercise and discharge throughout the State the following powers and functions namely :\n\n(a)\n\n(b)\n\n(c) (d)\n\n(4) For the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority and the Regional Transport Authority shall in the discharge of its functions under this Act give effect to and be guided by such directions.\n\n48(3) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for\n\nt) Il910] 2 s. c. R. 52\n\nSUPREME COURT REPOR'Il! [1971] SUPP. s.c.a.\n\na service of stage carriage of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions namely: -\n\n(i) to (xi) • i •\n\n(xii) that fares shall be charged in accordance with the approved fare table;\n\n59(3) The following shall be conditions of every permit: -\n\n(c) that any prohibition or restriction imposed and any maximum or minimum fares or freights fixed by notification made under Section 43 are observed m connection with any vehicle or vehicles to which the permit relates :\n\nThe Government has persuant to Section 43 issued the following notification :\n\n\"In exercise of the powers conferred by clause (i) of sub-section (!) of Section 43 of the Motor Vehicles Act, 1939 (Central Act, IV of 1939) and in supersession of the Notification of the Government of A.P. in Public Works and Transport Department No. 1184 dated the\n\nI Ith August 1956, published at page 2026 of part I of the A. P. Gazette dated the 6th September 1956, the Governor of Andhra Pradesh hereby directs the State Transport to fix the following maximum fares inclusive of the tax leviable under the Madras Motor Vehicles\n\n(fa.xation of Passengers and Goods) Act, 1952 (Madras Act XVI of 1952) for stage carriages in the territories of the State of Andhra Pradesh which immediately before the !st November, 1956 were comprised in the State of Andhra ............... \"\n\nIn view of the directions given by the Government in tile above notification the Regional Transport Authority called upon the Regional Transport Officers to notify the operators to collect , the enhanced fares and accordingly the officers concerned in compliance with those directions notified the operators.\n\nOnce the provisions of Section 43(1)(i) and 44(4) are complied with Section 59(3)(c) comes into play and it has the effect of incorporating the maximum fares as rrotified including the tax leviable, as a condition of the permit.\n\nThis being the legal position we do not think there is any justification for the contention that the collection by the operators of the enhanced fares without the table of fares being amended Would entail the cancellation of the permits.\n\ns. SRIKANTIAH v. REGIONAL TRANSPORT lJaganmohan Reddy, J.)\n\nThe decision of the Madhya Pradesh case is clearly distinguishable as it does not appear that any notification was issued under Section 43 as was done in this case nor do we find that the provisions of Section 59(3)(c) have been referred to or considered.\n\nAt page ll l, Dixit C.1., noted the submissions of the Additional Government pleader that instructions would be issued to all Regional Transport Authorities for a revision of fare tables under Section 43 of the Motor Vehicles Act so as to enable the operators to recover the tax amount from the passengers as extra fare, which he observed was a step in the right direction. These observations show that there was no notification under Section 43 nor any instructions given to the Regional Transport Officers by the Regional Transport Authority. In the circumstance that case is not an authority for the proposition ntended by the learned Advocate for the Appellant.\n\nIn our view there is no validity in the stand taken by the operators and consequently this appeal is dismissed with costs.\n\nAppeal dismissed.\n\nG. C.", "total_entities": 29, "entities": [{"text": "S. SRIKANTIAH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "S. SRIKANTIAH & ORS", "offset_not_found": false}}, {"text": "THE REGIONAL TRANSPORT AUTHORITY,\n\nANANTAPUR & ORS", "label": "RESPONDENT", "start_char": 22, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "THE REGIONAL TRANSPORT AUTHORITY, ANANTAPUR & ORS", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 110, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "G.K. 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R. PAWAR & ANR.\n\nMay 7, 1971\n\n[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.J\n\nRepresentation of the People Act (43 of 1951), ss. 9A. 77 & 123- Publication of statements relating to the personal character or conduct of a candidate-When a corrupt practice-Contract between Company and Government-Chairman of Board of Directors of Company-If deemed to have entered into contract with Government.\n\nThe appellant challenged the election of the first respondent on the grounds: (I) that during the election campaign statements were 'Oade at a public meeting that the appellants had misappropriated money, that statements wre published in a weekly referring to the appellant as a corrupt candidat\", that the statements were made with the first respondent's approval, that the statements were false and the respondent either believed them to be false or did not believe them to be true, and that by publishing the false statements in relation to the personal character or conduct of the appellant the first respondent appellant was guilty of a corrupt practice under s. 123 (4) of the Representation of the People 'Act, 1951. (2) That the respondent purchased petrol worth about Rs. 2,000 and if that amount was added to the admitted expenditure it would show that the respondent had incurred election expenses in excess of the limit prescribed by s. 77 of the Act read with r. 90 of the Election Rules.\n\n(3) That the respondent was a Chairman of the Board of Directors of an Electric Supply Company which generated and supplied electricity to the State Government under a contract. and therefore he was disqualified on the ground that he had a subsisting contract with the State within the meaning of s. 9(A) of the Act.\n\nThe election petition was dismissed by the High Court\n\nIn appeal to this Court,\n\nHELD: (1) The appellant had himself admitted on oath as a witness that a complaint was filed against him for embezzlement. The complaint was pending in the criminal court at the time of the election.\n\nA charge was also framed in those !proceedings. The charge and complaint are relevant and there is no provision of law which makes the order framing the charge or the complaint inadmissible in evidence.\n\nthere was thus enough material to show that the statements relating to the appellant were not founded on mere suspicion or that they were the result of a pure conjuncture or guess. Hence, the appellant had failed to discharge the burden laid on him under s. 123(4) of the Act to prove that the impugned statements were not only false but in addition that the respondent and his agents published them either believing them to be false or not believing them to be true. [827A]\n\nDr. Jagjit Singh v. Giani Kartar Singh, A.I.R. 1966 S.C. 773, followed.\n\n(2) The charge that he incurred election expenses beyond the prescrihed limit must fail for want of evidence connecting this item of expenditure with the election.\n\nMANOI LAL v. PA WAR (Dua, J.)\n\n(3) Section 9A of the Act only covers contracts which have ocen entered into by a person in the course of his trade or business with te appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government. In the present case, the contract to supply electricity by the Electric Supply Company could by no means be considered to be a contract entered into by the respondent in the course of his trade or business merely because he was at the relevant time a Chairman of the Board of Directors of the Company, because the business of a companY could not be described as a trade or business of the Chairman of its Board of Directors. -[828B]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1229 of 1970. ·\n\nAppeal under s. 116-A of the Representation of the People C Act, 1951 from the judgment and order dated March 27, 1970 of the Madhya Pradesh High Court, Indore Bench in Election Petition No. 1 of 1968.\n\nL. M. Sir.ghvi, U. N. Bachawat, Sobhagmal Jain and S. K.\n\nDhingra, for the appellant.\n\nV. S. Desai, A. M. Mathur, Bhim Singh and S. K. Gambhir, for respondent no. 1.\n\nThe Judgment of .the Court was delivered by\n\nDua, J.-Mangi Lal Joshi has appealed to this Court under s. 116-A of the Representation of the People Act 43 of 1951 (hereinafter called 'the Act') from the judgment and. order of the Madhya Pradesh High Court (Indore Bench) dismissing his election petition under s. 81 of the Act challenging the election of respondent No. 1 Krishnaji Rao Pawar, an Ex-Ruler of the erstwhile Dewas Senior State, to the Legislative Assembly of Madhya Pradesh from the General-Dewas Assembly Constituency No. 256 in the 'bye-election held in June -1968.\n\nThis seat had fallen vacant on account of the death of Shri Hattesing, the successful candidate from this constituency in the General Elections held in February 1967. The appellant had contested the election on the ticket of the Indian National Congress whereas respondent No. I had contested it as an independent candidate. The charges on which the appellant's learned counsel has concentrated before us relate to : -\n\n(il the alleged corrupt practice of publication of false statements relatingto the personal character and conduct of the appellant;\n\n(ii) the incurring of election expenses in excess of the prescribed limit ; and\n\n824 5UPREMB COURT REPORTil [1971] SUPP. s.c.R.\n\n(iii) the alleged disqualifications of the respondent on the\n\nground that he had a subsisting contract with the State within the contemplation of s. 9A of the Act.\n\nThe charge of bribery pressed in the High Court was not reagitated in this appeal.\n\nThe first point canvassed before us relates to the alleged corrupt practice of publication of false statement of fact in relation to the personal character or conduct of the appellant as contemplated by s, 123 sub-s. (4) of the Act.\n\nArguments on this point were confined to sub-issues (a), (b), (c), (d), (e), (f) & (gi of Issue No. 5 and the relevant sub-issues of Issue No. 6.\n\nThe aforesaid sub-issues of Issue No. 5 cover the plea contained in para. 13(b)(i) of the election petition. It was averred in that sub-para that at a public meeting held at about 8 P.M. on June 13, 1968, at Jawahar Chowk at which the returned candidate was present, Abdul Rehman Talib of Dewas, Kanhaiyasingh Thakur of Dewas, Kr. Virendrasingh, Deputy Minister of Labour, Government of Madhya Pradesh and Khasherao Ghorpade of Dewas, in the course of their speeches, made statements relating to the personal character and conduct of the petitioner I appellant which were false and which the speakers and the returned candirlate either believed to be false or did not believe to be true and those statements were reasonably calculated to prejudice the petitioner/appellant's prospects of election .• Abdul Rahman Talib was alleged to have said :-\n\n\"No votes should be given to such Congress Candidate who has misappropriated the money.\"\n\nKr. VirendrasiJ!gh was imputed the following statement : -·\n\n\"f have come from Labour Colony.\n\nWater tank is lying empty.\n\nAll the money of water subscription has been misappropriated by Congress candiawar\n\n(R.W. 17) were in any way instrumental in. getting the said complaint filed against the said petitioner.\n\nThis very complaint was pending at the . time of this byeelection in question and a number of witnesses examined\n\nby the petitioner and also examined by the returned candidate have stated that such a complaint was filed in criminal court against the petitioner and it was pending.\n\nIn other words, filing of such a complaint against the petitioner was a notorious fact known to several persons in Dewas and subsequently the charge was framed against him on the same material thus, the impugned statement was not founded on mere suspicion pure or simple nor was it the result of pure conjecture or guess. It had positive basis and the basis subsequently proved to be prlma facie correct, therefore, the impugned statement falls within the ambit of bona fide statement.\n\nIn conclusion, therefore, I hold that the petitioner failed to prove that the impugned statement was false and was either believed to be false or not believed to be true. Accordingly, I decide these two issues as not proved Hence it follows that the impugned statement does not fall within the mischief of section 123(4) of the Act.\"\n\nWe are in full agreement with the approach and the final conclusion of the High Court.\n\nThe, essential basic facts seems to lls to be incontrovertl\"ble, and if that be so, then clearly there is a very heavy burden on the petitioner I appellant to prove the most vital ingredients prescribed in s. 123(4) of the Act, namely, that the impugned statement of fact is not only false, but in addition that the respondent returned candidate and his agents publishing the impugned statements either believed the same to be false or did not believe them to be true : See Dr. J ag; it Singh\n\nv. Giani Kartar Singh and others.(') On this point there is absolutely no material on the record.\n\nThis challenge by the appellant also fails.\n\nDr, Singhvi, we may in fairness to him point out, took considerable pains to persuade us to hold that the order of. the criminal Court framing the charge is inadmissible in the proceedings.\n\nIt was also submitted that the charge having been framed afterwards could not be taken into account for considering whether the impugned statements could be 'believed to be true at the time they were made.\n\nDr. Singhvi submitted that if the order of the criminal Court> is ignored and if the appellant's denial about embezzlement is taken into account then the statements made at the meeting and those published in 'Ranchandi' must be held to be false and believed to be so or not believed to be true, This argument is difficult to accept. To begin with, the appellant has himself admitted on oath as a witness that the complaint was filed against him for embezzlement and a\n\n(I) A. I. R. 1966 S. C.773.\n\nMANG! LAL V. PAWAR (Dua,/.) 831\n\ncharge was also framed in those proceedings.\n\nThis admission A cannot be ignored.\n\nWe are also not inclined to agree with Dr. Singhvi that the order framing the charge or the complaint are inadmissible in evidence. Dr. Singhvi has not drawn our atten tion to any provision of law which would render them inadmissible in the present proceedings.\n\nThe counsel then submitted that Lal 2ingh's statement in the criminal Court is clearly inadmissible as evidence and the High Court was wrong in taking that statement into consideration.\n\nHere again, we think that the counsel in not quite correct.\n\nThe statement of Lal Singh would seem to us to be relevant and admissibfo under several provisions of the Indian Evidence Act. We need onlr refer to ss.,7, 8 and 11(2) of that Act.\n\nIn this connection it 1s interesting to point out lhat Lal Singh's statement in the Criminal Court was got proved in his cross-examination at the instance of the election petitiouer I appellant. It would, therefore, be a question for consideration if the appellant can now be permitted to find fault with what he himself had elicited by cross-examining R.W. 13. However. even excluding this cross-examination there is. in our opinion, .ample material in support of the conclusions of the High Court.\n\nThis takes us to the charge of corrupt practi~..1 iirS. 123(6) of the Act. This charge relates to the respOi\\\"clepf' 'returned candidate's election expenses bein~ in excess of the limit pres·\n\ncribed by s. 77 of the Act read with r. 90 of the Election Rules.\n\nThe only point in respect of this charge pressed before us is that petrol worth Rs. 2,000 /. was purchased by the returned candidate from Mis A. J. Khanuja & Sons, Bombay-Agra Road, Dewas.\n\nIf this amount is added to the admitted expenditure of Rs. 6,576-78, then the expenses would exceed the prescribed limit and the election must according to , the appellant be set aside on this ground. Dr. Singhvi addressed elaborate arguments on this point with the object of showing that the entire petrol purchased from the aforesaid firm must be held to have been purchased for the purpose of the election in question.\n\nWe do not consider it necessary to deal with the arguments at length because the charge must fail for want of evidence connecting this item of expenditure with the election. The High Court has observed in 1his connection :\n\n\"The petitioner has not adduced any evidence on this point except that of Daulatrao (P.W. !) who has also filed extracts of accounts of petrol and oil etc. purchased by the returned candidate from his master MI s A. J.\n\nKhanuja and Sons, Dewas during the releV'ant period.\n\nNeither these extracts nor the evidence of this witness establishes the additional expenditure of Rs. 2000 I as pleaded by the petitioner. The returned candidate Shri Krishnajirao Pawar (R.W. 17) has deposed that at the relevant time he owned two jeeps, five cars, one tractor and one pick-up van and agricultural land of about 500 acres. He also deposed that during the period of this bye-election he used only the jeeps for election propaganda but petrol was purchased not only for the jeeps but for cars also which were used for house-hold purposes. He further deposed that Diesel was used for agricultural purposes. His testimony further shows that he had instructed Mis A. J. Khanuja and Sons Dewas that petrol and oil purchased for to the election purposes should be marked distinctly and, therefore, he used to sent the counter-foil for purchase of eetrol and oil which used to be marked with latter 'g' to indicate that the same were purchase for election purposes.\n\nAbout marking, the petitioner's witness, Daulatrao (P.W. I) says something.\n\nThe total costs of the marked items so called out from the extracts (Ex. P. I and P. 2) have not been shown to be an additional expenditure and not covered b) the election expenses return filed by Shri Krishnaji Rao Pawar (R.W. 17).\n\nHe is the ruler of Senior Dewas State, possessed several vehicles at the relevant time and, therefore, undoubtedly needed petrol and oil for them, as also oil for\n\ntraietor and pick up van during the said period for his domestic purposes and agricultural purposes besides election purposes.\n\nThe evidence of Daulatrao (P. W. !) himself would show that in the month of April 1968 when there was no hectic activity about the election.\n\nThe cost of petrol and oil purchased by him during that month amounted to Rs. 2604-12 Paise. That would indicate that he requires Jar3e quantity of petrol and oil for his motor vehicles, oil engine etc. used for domestic and agricultural purposes. It is tme that the extracts of accounts (Ex. P. I and P. 2) show that cost of petrol and oil purchased from 31-5-1968. was about Rs. 2250 /- but it is impossible to believe that the entire cost was incurred in connection with this election. I hold that the petitioner has failed to establish that the returned candidate had incurred or authorised additional expenditure of Rs. 2,000/- from 31-5-1968 to 15-6-1968 in connection with his election and I decide this. issue as not proved.\"\n\nMANOI LAL v. PAWAP, (Dua, J.) 833\n\nThe reasoning and approach of the High Court is unexcep- A. tionable and nothing urged by Dr. Singhvi has persuaded us to disagree with the High Court's conclusions.\n\nThese were the only points urged at the bar in support of the appeal. As we find all of them to be without substance, thl appeal fails and is dismissed with costs. a\n\nV.P.S.\n\nApp, eal dismisH\".\n\n53-1 S. C. lndia/71", "total_entities": 33, "entities": [{"text": "MANGI LAL", "label": "PETITIONER", "start_char": 0, "end_char": 9, "source": "metadata", "metadata": {"canonical_name": "MANGI LAL", "offset_not_found": false}}, {"text": "K. R. PAWAR & ANR", "label": "RESPONDENT", "start_char": 14, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "K. R. PAWAR & ANR", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 51, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "I. 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M. SIKRI, C. J,, P. JAGANMOHAN REDDY AND\n\nI. D. DUA, JJ.)\n\nCod• of Criminal Proc•dure, 1898-S•ctlon !9S(l)(c), Scop• of.\n\nThe ar.llant had filed a suit for the recovery of certain amount on the basis o a foraed cheque. A private complaint waa filed in tho Court ef the Judicial Maaistrate aaainst the appellant and another per•on for otfencea punishable under sections 467 and 471 Penal Code. The Ma1is trate found primo focle evidence !hat the appellant bad fraudulenUy used in the Civil Suit a forged cheque, and committed him to the Sessions for\n\ntrial. Tho appellant raised an objection tblit in view of aection !95(l)(C) of tho Codo of Criminal Procedure no cognizance of the offence could be taken on a private complainl Tho High Court upheld the commit meat erder. On tho scope and effect of aection 195(l)(C) and iii applicability to cases where a forged document bas been produced as evidence in a judicial proceeding by a party thereto and prosecution of that party is aougbt for offences under sections 467 and 471 Penal Code,\n\nHELD: The words \"to have been committed by a party to any pro ceedina in any court\" in section 195(1)(c) mean that the offence should be alleged to have been committed by the party to the proceeding in his character a• such party, that is, after havina become a party to the proceed ina. Sections 195(l)(C), 476 and 476A Code of Criminal Procedure, read toaetber indicate that tho legi&lature could not have intended to extend tho prohibition contained in section 195(1)(c) to tho offences mentioned therein when committed by a party to a proceedina in that court prior to his be coming such party. Tho offences about which tho court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain, may be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which bas a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. [842DH]\n\nIn this case the offence under section 471 Penal Code is clearly cover~ ed by the prohibition contained in section 195(1) (C); but the offence under section 467 Penal Code can be tried in the absence of a complaint by the Court unless it is shown by the t; vidence that documents in question were forged by a party to the earer proceedin¥ in. his character as such a party; in other words after the smt bad been mstituted. [847B]\n\nEmperor v. Kushal Pal Singh, I.L.R. [1953] All. 804 approved.\n\nState of Gujarat v, A.Ii Bin Rajak, 9 Guj: Law Reporter I, Emperor v.\n\nMallappa, A.I.R. 1937 Born. 14, Har Prasad v. Hans Raj, A.l.R. 1966 All.\n\n124, Vivekanond v. State A.I.R. 1969 All. 189, Harinath Singh v. State 1964 All. L. J. 467, Basiru/.Haq v. State of West Bengal, A.l.R. 1953 S.C. 293, Krishna Nair v, Stat• of Kerala, (1962) I Cr!. L. J. 340 and Stat• v.\n\nBhikubhol, A.I.R. 1965 Guj. 70, referred to.\n\nSOl4ABHAI 1. GUJARAT (Dua, J.) 835\n\nCiuMINAL APPELATB JURISDICTION : Criminal Appeal No. 169 A of 1969.\n\nAppeal from the judgment and order dated April 30, 1968 of the Gujarat High Court in Criminal Reference No. 49 of 1966.\n\nN. N. Keswani, for the appellant.\n\nS. K. Dho/akia and S. P. Nayar, for the respondent.\n\nThe J uclgment 'Of the Court was delivered by\n\nDua, J.-This appeal with certificate under Art. 134(l)lc) 'Of the Constitution directed against the judgment and order of the Gujarat High Court in criminal reference made by the Sessions Judge, Ahmedabad, raises an important question of law on which there appears to be conflict of judicial opinion. Even in the Gujarat High Court the correctness of the majority view in the Full Bench decision in the State of Gujarat v. Ali Bin Rajak(') bas been doubted by the learned Judge hearing the criminal reference in the present case, who followed the majority view merely because he felt bound by it.\n\nThe learned single Judge did not consider the case to be fit for reference to a larger bench for reconsidering the majority view in the case of Ali Bin Rajak(').\n\nCertificate of fitness for appeal to this Court was, l!owever, granted by the learned Judge.\n\nThe question raised relates to the scope and effect of s. 195(l)(c), Cr. P.C. and its applicability to cases where a forged document has been produced as evidence in a judicial proceeding by a party thereto and prosecution of that party is sought for offences under ss. 467 and 471, I.P.C. in respect of that document.\n\nThe relevant facts of the case may now be briefly sta.ted, The appellant Patel Laljibhai Somabhal instituted a civil suit (No. 11 of 1964) in the court of Joint Civil Judge at Dholka against Vora Safakat Huseian Yusufali (hereafter called the complainant) and his brother Vora Ahmed Huseian Yusufali for the recovery of Rs. 2,000 I on the basis of a cheque dated November 22,. 1963 (alleged to have been given to him on June 27, 1963) under the signatures of the complainant Vora Safakat Huseian Yusufali Lakadwala on the Bombay Mercantile Cooperative Bank Ltd., Ahmedabad Branch. The defence in the suit was that the cheque in question and certain coupons .. which were produced and relied upon in that suit were forged and the suit was false. The suit was dismissed on January 30, 1965 by the Joint Gvil Judge, Dholka.\n\nThe Co111t did not believe the\n\n(I) 9 Guj. Law Reporter I.\n\nplaintiff's story about the cheque.\n\nOn November 16, 1965 the compiainant filed a complaint in the court of the Judicial Magistrate, First Class, Dholka against two accused persons for offences punishable under ss. 467 and 471, I.P.C. The two accused were Vora Saifuddin Akbarali and the appellant.\n\nVora Saifuddin Akbaraili (accused no. 1) is described in the complaint as the complainant's sister's husband. It was averred in the complaint that the complaintant's elder brother Ahmedbhai had started a business in milk in Ahmedabad and accU.Sed no. 1 used to help him in that business from time to time. This business had been started in the shop of the brother of accused no. 1 who was also dealing in milk. Ahmedbhai used to stay at the house of accused no. 1. The books, coupons and cheque books of the milk business had been kept at the residence of accused no. l.\n\nThis business was carried on till July, 1962 when it was closed and Ahmedbhai left Ahmedabad for Limbdi for staying there.\n\nThe appellant had been appointed as the commission agent through accused no. 1 and milk was collected from various milkmen through him (the appellant).\n\nWhen the business was closed on July 28, 1962 a sum of Rs. 231-1-0 remained to be paid to the appellant and nine cans of milk remained in balance with him. A notice was given in this connection after settling all the accounts and the appellant paid Rs. 200/- in cash to Ahmedbhai and thereafter nothing was due to the appellant. On November 30, 1962 the defendants in the suit at the instance of accused no. 1 started a milk shop at Jamalpur and they used to stay at the house of accused no. I who was employed in tlte Mercantile Bank and through whom an account was opened with that bank in the name of the defendants. Accused no. I nsed to utilise this account for himself and his brothers.\n\nBeing a relative, accused no. I was trusted by the complainant and ru, brother and they used to act according to the instructions of accused no. I. In June, 1962 accused no. 1 had come to Limbdi and asked for a loan of Rs. 15,000/- from the complainant's father. But this request was declined with the result that accusH no. I got annoyed and threatened him with ruinous consequences.\n\nThereafter accused no. I conspired with the appellant to harm the complainant and his brother and father. Cheque books containing blank cheque forms but bearing the complainant's signatures and all the books of account were at that time kept in the house of accused no. !, where the complainant and his brother used to stay. It is in this background that the accused no. I prepared a cheque for Rs. 2,000 /- in his own handwriting on a blank cheque form bearing the oomplainanfs signature and the appellant utilised that cheque.\n\nThe appellant and accused no. 1 were, on these averments, alleged to have forged the cheque.\n\nCivil Suit No. ll / 64 was then filed in which this cheque was\n\nuse~ knowing the same to be forged. The Magistrate found\n\nSOMABHAI v. GUJARAT (Dua, J.)\n\nprima facie evidence that the appellant (accused No. 2) had fraudulently used in the civil suit the forged chaque in question. The Magistrate also found prima facie evidence that accused no. 1 had committed an offence punishable under s. 467, I.P.C. and the appellant was liable under s. 34, I.P.C. The forgery of the cheque and the use of the forged cheque as genuine were considered by the Committing Magistrate to form part of the same transaction and the two charges could, therefore, be tried together.\n\nThe question of the necessity of complaint by the Civil Court under s. 195(1)(c), Cr. P.C. was also raised in the committing court but following the decision of the Bombay High Court in Emperor v. Mallappa(') the Magistrate held that provision to be inapplicable to the present case. On behalf of the appellant an application was then made in the court of the Assistant Sessions Judge in which the trial was to be held, praying for quashing the commitment proceedings because in face of s. 195(1)(c) no cognizance of the offence could be taken by the court on a private complaint.\n\nAs the Assistant Sessions Judge could not make any reference to the High Court the case was withdrawn by the Sessions Judge to his own court who after hearing the application referred the case to the High Court with a recommendation that the commitment order be quashed.\n\nThe High Court, considering itself bound by the majority view in the case (}f\n\nAli Bin Rajak(') declined the recommendation and upheld the commitment order as already noticed. In view of the contlict of judicial opinion amongst the various High Courts and even in the Gujarat High Court itself we would prefer first to consider the relevant statutory provisions on their own language and thereafter to consider the decided cases.\n\nSection 195 ciccurs in Division B of Chapter XV in Part VI of the Code of Criminal Procedure.\n\nPart VI consisting of Chapters XV to XXX iS headed \"Proceedings in prosecution\".\n\nChapter XV deals with \"The jurisdiction of criminal courts in inquiries and trial!'. It consists of ss. 177 to 199B and is divided into two divisions. Sections 177 to 189 (Division A) deal with the \"Place of Inquiry or trial\" and ss. 190 to 199B (Division B) deal with the \"Conditions requisite for initiatiop. of proceedings\".\n\nWe are only concerned with Division B but it is unnecessary to deal with each one of the sections contained in tha.t Division.\n\nOnly two section~ require to be noticed, namely, ss. 190 and 195.\n\nSection 190 deals with \"cognizance of offences by Magistrates\".\n\nThis section, subject to the exceptions contained in the succeeding provisions of the Code, empowers the Magistrates mentioned therein to take cognizance of any offence 11pon complaint, police report, or information or on the knowledge or suspicion of the\n\n(1) A. I. R. 1937 Born. 14.\n\n(2) 9 Guj. Law Reporter I.\n\nSUPREMB COURT REPORTS [1971] SUPP. s.c.R.\n\nMagistrate about the commission of an offence. The main purpose of this section is to ensure freedom and safety of the subject by giving him a right to approach the court if he considers that a wrong has been done to him.\n\nSub-section (!) of s. 195 which is concerned with (a) \"Prosecution for contempt of lawful authority of public servants\", (b) \"Prosecution for certain offences against public justice\", and (c) \"Prosecution for certain offences relating to documents given in evidence\" places some restrictions on the general power conferred on courts of Magistrates by s. 190 to take cognizance of offences. This section may here be reproduced.\n\n\"195. Prosecutioa for contempt of lawful authority of public Sft'YaJd\".-\n\n(1) No Court shall take cognizance-\n\n(a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;\n\n(b) Prosecution for certain offences against public justice.---Of any offence punishable under any of the following sections of the same Code, namely, s.ections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in or in relation to any proceeding in any Court, except on the complaint in writing of such Court or some other Court to which such Court is subordinate; or\n\n(c) Prosecution for certain offences relating to documents given in evldence.-Of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing. of such Court, or of some other Court to which such Court is subordinate.\n\n(2) In clauses (b) and (c) of sub-section (!), the term \"Court\" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877.\n\n(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction\n\nSOMABllAI v. GUJARAT (Dua, J.)\n\nwithin the local limits of whose jurisdiction such Civil Court is situate :\n\nProvided that-\n\n(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be sub ordinate; and\n\n(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.\n\n(4) The provisions of sub-section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.\n\n(5) Where a complaint has been made under subsection (1), clause (a), by a public servant, any authority to which such public servant is subordinate may order the \\vithdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.\"\n\nWe are directly concerned only with cl. (c) of s. 195(1).\n\nWhat is particularly worth noting in this clause is (i) the allegation of commission of an offence in respect of a document produced or given in evidence in a proceeding in a court; and\n\n(ii) the commission of such offence by a party to such proceeding.\n\nThe use of the words \"in respect of\" in the first ingredient would seem to some extent to enlarge the scope of this clause. Judicial opinion, however, differs on the effect and meaning of the words \"to have been committed by a party to any proceeding in any icourt\".\n\nAs cl. (b) of s. 195(1) dqes not speak of offence com milted by a party to the proceeding, while considering decisions on that clause this distinction deserves to be borne in mind Broadly speaking two divergent views have been expressed m decided cases in this connection.\n\nAccording to one view, to attract the prohibition contained in cl. (CJ the offence should be alleged to have been committed by the party to the proceeding in his character as such party, which means after having become a party to the proceeding, whereas according to the other view the alleged offence may have been committed by the accused even prior to his becoming a party to the proceeding provided that the document in question is produced or given in evidence\n\nin such proceeding.\n\nThe language used seems to us to be capable of either meaning without straining it. We have, therefore, to see which of the two alternative constructions is to be preferred as being more in accord with the legislative intent, keeping in view the statutory scheme and the purpose and object of enacting the prohibition contained in s. 195(1)(c).\n\nIn construing this clause we consider it appropriate to read it along with s. 476 Cr. P.C. which prescribes the procedure for cases mentioned in s. I 95(l)(b) and (c), also bearing in mind that under s. 476A a superior court is empowered to complain when the subordinate court has omitted to do so and that s. 476B confers on an aggrieved party a right of appeal from an order refusing to make a complaint under s. 476 or s. 476A as also from an order making such a complaint.\n\nAll these provisions, forming part as they do of the statutory scheme dealing with the subject of prosecution for offences against administration of justice, require to be read together and when so read would help us considerably in having a more vivid picture of the . legislative intendment in prescribing the prohibition in the two clauses of s. 195(!) and the procedure for initiating prosecutions for offences mentioned therein. Section 476 reads :\n\n\"476. Procedure in cases mentioned in section 195.-\n\n( f) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, sub-section (!), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate :\n\nProvided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.\n\nFor the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class.\n\nSOMABHAI v. GUJARAT (Dua, J.)\n\n(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200.\n\n(3) Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided.\"\n\nThis section quite clearly postulates formation of judicial opinion that it is expedient to hold an inquiry into an offence referred to in cl. (b) or in cl. (c) of s. 195(!) which appears to the Court to have been committed either in' or in relation to a proceeding in that court. Offences mentioned in cl. (b), it may be recalled, would be covered by that clause even if they are alleged to have been committed in relation to a proceeding in a court, whereas those mentioned in cl. (c) should be alleged to have been committed by. a party to a proceeding in a court in respect of a document produced or give11 in evidence in that proceeding. Section 476, it is also noteworthy, empowers the court even suo motu to take up the question of expediency of making a complaint.\n\nAs a general rule, the courts consider it expedient in the interest of justice to start. prosf#:utions as contemplated by s. 476 only if there is a reasonable foundation for the charge and there is a reasonable likelihood, of conviction. The requirement of a finding aG to the expediency is understandable in case of an offence alleged to have been cominitted either in or in relation to a proceeding in that court in case of offences specified in cl. (b) because of the close nexus between the offence and the proceeding.\n\nIn case of offences specified in cl. (c) they are required to be committed by a party to a proceeding in that court with respect to a document produced or given in evidence in that court. The offence covered by s. 471 I.P.C. from the its very nature must be committed in the proceeding itself by a party thereto.\n\nWith respect to such an offence also expression of opinion by the court as to the expediency of prosecution would serve a useful purpose. It is only with respect to the offence described in\n\n~- 463 I.P.C. and the offences punishable under ss. 475 or 476 I.P.C. that two 'Views are possible and therefore the effect of reading s. 195(1)(c) ands. 476 Cr. P.C. together has to be examined for discovering the true legislative intendment in respect of these offences.\n\nThe underlying purpose of enacting s. 195(1)(b) and (c) and s. 476 seems to be to control the temptation on the part of the private parties considering theniselves aggrieved by the offences\n\nSUPRllME COURT REPORTS\n\n[1971] SUPP. S.C.R.\n\nmentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words the administration pf public justice, which is the direct and immediate object or victim of these offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings cf the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the. guilty party. The private party designed ultimately to be injured through the offence against the administration ot public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by s. 190 Cr. P.C. of the aggrieved parties directly initiating the criminal proceedings.\n\nThe offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to comjPlain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely Independent and frh jnquiry, satisfactorily consider by reference principally to its recrds the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in s. 195(1)(c) only to thosecases in which the offences specified therein were committed by a party to the proceeding in the character as such party.\n\nIt may be recalled that the superior court is equally competent under s. 476A Cr. P.C. to consider the question of expediency of prosecution and to complain and there is also a right of appear conferred by s. 476B on a person on whose application the Court has refused to make a complaint under s. 476 or s. 476A or against whom such a complaint has been made.\n\nThe appellate court is empowered after hearing the parties to direct the withdrawal of the complaint or as the case may be, itself to make the complaint.\n\nAll these sections read together indicate t.bat the legislature could not have intended to extend the prohibition contained ins. 195(1)(c) Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to bis becoming such party. It is no doubt true that quite often-if not almost invariably-the documents are forged for being used or produced in evidence in court before the proceedings are started. But tlmt in our opinion cannot be the controlling factor, because to adopt that construction, documents forged long\n\nSOMABHAI v. GUJARAT (Dua, J.)\n\nbefore the commencement of a proceeding in which they may happen to be actually used or produced. in evidence, years later by some other party would also be subject to ss. 195 and 476 Cr. P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by s. 190 Cr. P.C. without promoting the real purpose and object underlying these tw<> sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint.\n\nWe may now consider the decisions cited at the bar.\n\nIn Emperor v. Kuahal Pal Singh(') it was held by a Full Bench, of that Court that s. 195(1)(c) Cr. P.C. applies only to cases where an offence mentioned therein is committed by a party as such to a proceeding in any court in respect of a document which has been produced or given in evidence in such proceeding.\n\nThe words \"committed by a party to a proceeding\" in s. 195(1)(c) were interpreted in that case to mean \"committed by a person who is already a party to a proceeding\". The court in that case read. both s. 195 and s. 476 Cr. P.C. together because s. 195 was held to lay down the bar against the cognizance of certain offences and s. 476 the method for removing the bar. On the view taken by the court a complaint cannot be filed by a court under its inherent jurisdiction outside the provisions of s. 476 Cr. P.C.\n\nIn Hari Prasad v. Hans Raj(') a learned single Judge of the Allahabad High Court, dealing with the allegations made in a complaint under ss. 476 and 471 I.P.C. that a forged sale deed had been got executed and registered in pursuance of a criminal conspiracy amongst three opposite parties one of whom had filed an application for the mutation proceedings on the basis of the said forged deed observed that a close nexus was established between the conspiracy and its resulting in a forged deed and the subsequent filing of the mutation application on its basis, all ol' which form various links of the same chain. On this premise it was observed that cognizance of the offences was a bar on a private complaint under s. 195(l)(b) Cr. P.C. The learned Judge in the course of the judgment also said that even if it is held that the allegations made in the complaint disclose offences under ss. 467 and 471 I.P.C. as alleged therein and not under s. T93 I.P.C. their cognizance would be barred under s. 195(l)(c). The words \"in respect of\" were considered to be wide enough to include even a document which was prepared before the proceedings started in a court of law but was produced or given in evidence in that proceeding.\n\nAccording to this decision, when a document is produced in a court or is given in evidence, it is for that court to decide whether it is genuine or forged ana if\n\n(I) I. L. 11.. [1953] All. 804.\n\n(2) A. I. 11.. 1966 All. \\24.\n\na private party is allowed to lodge a complaint on the basis of that document describing it as forged and if that complaint is entertained without affording opportunity to the court before whom the document had been produced to give its opinion it would amount to forestalling its decision and is likely to foad to anomalous situation and also sometimes the contradictory findings by two competent courts. Incidently it may be pointed out that the earlier Full Bench decision of the Allahabad High Court was not cited in this case.\n\nIn Vivekanand v. State(') another single Judge of the Allahabad High Court observed that when the main finding is the one under s. 471 I.P.C .. namely, the finding of using a forged document as genuine and the other offences all flow from it, in the sense that if the charge under s. 471 fails, the charges for the other offences would also fail, none of which offences can in truth and substance be said to be of a distinct nature, the mere fact that ss. 406, 467 and 420 l.P.C. are also tacked on to the offence under s. 471 I.P.C. would not serve to take the case out of the scope and ambit of s. 195(i)(c).\n\nIn this case a forged vakalatnama was produced before the Compensation Officer for withdrawing certain amount.\n\nThe Compensation Officer was held to be a Court. Of the offence charged, viz. under ss .. 406. 420 and 467 I.P.C. along with s. 471 I.P.C., the first three sections were held to be cognate to s. 471 I.P.C.\n\nIn this case too the earlier Full Bench decision was not noticed and the learned single Judge followed an earlier Division Bench decision of that Court reported as Harl Nath Singh v. State(') In Hari Nath Singh's case('), distinguishing the decision of. this Court in Basr-ul-Huq v. State of West Bengal(') it was obiernd that offences under ss. 193 and 218 I.P.C. in that case were both barred. In Krishna Nair v. State of Kera/a(') a learned single Judge of the Kerala High Court observed that the words \"when such offence has been committed by a party to any proceedings in any court\" used in s. 195(l)(c) referred not to the date of the commission of the alleged offence but to the date on which the cognizance of the criminal court is invited and that when once a document has been produced or given in evi dence before a court the sanction of that court or perhaps of some other court to which that court is subordinate is necessary before a party to the proceedings in which the document was produced or given in evidence can be prosecuted notwithstanding that the offence alleged was committed before the document came into the court at a date when the person complained against was not a party to any proceeding in court. In this case reference was made to several decisions of various High Courts including some decisions of the Allahabad High Court prior to\n\n(1) A. I. R. 1969 All. 189.\n\n(3) A. I. R. 1953 S. C. 293.\n\n(2) 1964 All. L. J. 467. (4)(1962) I Cr!. L. J. 340\n\nSOMi\\BHAI V. GUJARAT (Dua, J.) 845\n\nthe Full Bench. decision which was significantly not noticed.\n\nThe Full Bench of the Gujarat High Court in State of Gujarat\n\nv. Ali Bin Rajak(') by majority held that under s. 195 (!) (c) Cr. P.C. sanction for prosecuting a party to a proceeding for an offence under s. 471 I.P.C. was not necessary in respect of a use made outside the court in which the document was subsequently used, as the bar to cl. (c) would apply only to those cases where the offences mentioned therein were committed in regard to the documents produced or given in evidence in proceeding .\n\nThe facts in the reported case were, that one Har Govind Kalidas had obtained a decree against Ali Bin Rajak of Junagadh from the court of a civil Judge, Junior Division, Visavadar, District Junagadh. Har Govind filed an execution application for recovering his decretal dues in the course of which the amount payable by the Mamlatdar, Dhari to the judgment-debtor under an annuity card was attached. Garnishee order was served on the Mamlatdar, Dhari.- Rajak thereafter appeared before the Mamlatdar and stated that he had paid the decretal amount to Har Govind.\n\nThe Mamlatdar required Rajak to produce the.- receipt which was produced on July 27, 1964. The receipt bore the date May 23, 1964, purporting to be signed by Har Govind.\n\nThereupon the Mamlatdar paid the amount due under the annuity card to Rajak and made a report to the Civil Court enclosing the receipt produced by Rajak. The Civil Court called upon Har Govind to show cause why the execution application should not be disposed of. Har Govind denied receipt of any amount from Rajak and alleged the receipt to be forged.\n\nThe Civil Court thereupon issued notice to the Mamlatdar requiring him to show cause why he should not be held up for contempt of.\n\ncourt. The Mamlatdar regretted his action in making payment without the Civil Court's order arid explained how he relied upon\n\nRajak's word.\n\nThe Mamlatdar got the amount produced by Rajat: and forwarded the same to the Civil Court. The amount was produced by Rajak under protest and subject to his right to claim the same. Thereafter Har Govind lodged a F.I.R. with the police at Dhari and on completion of the investigation the P .S.I. sent a charge-sheet against Ali Bin Ra jak to the court.\n\nThe Magistrate finding prima facie case committed Rajak to the Sessions Court for trial. One of the charges was under s. 420 I.P.C. and the other Was under s. 471 I.P.C. The second charge with which alone the court was concerned was based on the allegation that Rajak had made use of the receipt dated May, 23, 1964, alleged to he forged before the Mamlatdar by producing the same before that officer on July 16, 1964.\n\nThe objection taken by Rajak was that by virtue of s. 195(1)(c) the court could not take cognizance of this case whereas on behalf of the prose-\n\n(1) 9 Guj. Law Reporter I.\n\ncution it was contended that the forged receipt had been produced before the Mamlatdar before its production in the civil court and, therefore, s. 195(1)(c) was inapplicable.\n\nIt was in this context that the majority of the judges held that no complaint by the court was necessary whereas one learned Judge took tine contrary view.\n\nIt appears to us that in the Gujarat case the use of the forged power of attorney before the Mamlatdar occurred while the execution proceedings were pending but since it was not this user which was the subject matter of the charge the majority of the Judges rightly held that thii was not barred by s. 195(!)(c). It was apparently not argued that the complaint of the Mamlatdar was necessary.\n\nIn State v. Bhlkubhai(') a Division Bench of the Gujarat High Court observed that s. 195(l)(c) Cr. P.C. would apply even when the person accused of the offence referred therein in respect of a document produced in a court was not a party to the proceeding in which the document was produced provided such offence was committed by him jointly with a person who was a party to the proceeding or provided the offence with which he is charged is the same as alleged to have been committed by the persons who were parties to the proceedings.\n\nThe Bench also observed that the words \"party to a proceeding\" are used in an abstract manner to indicate the only class or category of offenders.\n\nIt was further said that cl. (c) of s. 195(1) must be strictly construed because it encroaches upon the jurisdiction of the ordinary criminal courts empowered to punish offences under s. 195 and is engrafted by way of an exception to the ordinary powers of criminal courts.\n\nIt would, therefore, be improper to construe it in a manner which would restrict the jurisdiction of criminal courts unless the restriction is expressly provided for or necessarily follows.\n\nBroadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench in Kushal Pal Singh's case(~.\n\nThis in our opinion reflects the better view.\n\nThe purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in s. 195(l)(b) and (c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the courts in which forged documents are produced or false evidence is led and the conclusions of the criminal courts dealing with the private complaint. It is for this reason as suggested earlier, that the Legislature has entrusted the court, whose proceedings had been the\n\n(I) A. I. R. 196S0uj. 70.\n\n(2) J. L. R. [1953] All. 804,\n\nSOl.tABHAI v. GUJARAT (Dua, l.)\n\ntarget of the offence of perjury to consider the expediency in the larger public interest, of a criminal trial of the guilty party.\n\nIn this case the offence under s. 4 71 LP .C. is clearly covered by the prohibition contained in s. 195(!)(c) but the offence under s. 467 I.P.C. can in our view be tried in the absence of a complaint by the court unless it is shown by the evidence that the documents in question were forged by a party to the earlier proceeding in his character as such party, in other words, after the suit had been instituted.\n\nThe appeal is accordingly allowed in part, in the terms just stated. The lower court, we hope, will dispose of the case with due de5patck.\n\nK.B.N.\n\nAppeal allowed in part.", "total_entities": 125, "entities": [{"text": "l\n\nPATEL LAUIBHAI SOMABHAI", "label": "PETITIONER", "start_char": 2, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "PATEL LALJIBHAI SOMABHAI", "offset_not_found": false}}, {"text": "THE STATE OF GUJARAT", "label": "RESPONDENT", "start_char": 30, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF GUJARAT", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 66, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 86, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "I. D. 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"start_char": 27157, "end_char": 27162, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 27204, "end_char": 27209, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 195(l)(c)", "label": "PROVISION", "start_char": 27250, "end_char": 27262, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 471", "label": "PROVISION", "start_char": 28366, "end_char": 28372, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 28373, "end_char": 28378, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 471", "label": "PROVISION", "start_char": 28519, "end_char": 28525, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "ss. 406, 467 and 420", "label": "PROVISION", "start_char": 28690, "end_char": 28710, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 471", "label": "PROVISION", "start_char": 28758, "end_char": 28764, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 28765, "end_char": 28770, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 195(i)(c)", "label": "PROVISION", "start_char": 28835, "end_char": 28847, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 29069, "end_char": 29074, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 471", "label": "PROVISION", "start_char": 29087, "end_char": 29093, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 29094, "end_char": 29099, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 471", "label": "PROVISION", "start_char": 29154, "end_char": 29160, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 29161, "end_char": 29166, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 193 and 218", "label": "PROVISION", "start_char": 29511, "end_char": 29526, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 29527, "end_char": 29532, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 195(l)(c)", "label": "PROVISION", "start_char": 29765, "end_char": 29777, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 195", "label": "PROVISION", "start_char": 30860, "end_char": 30866, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 471", "label": "PROVISION", "start_char": 30954, "end_char": 30960, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 30961, "end_char": 30966, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 420", "label": "PROVISION", "start_char": 33090, "end_char": 33096, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 33097, "end_char": 33102, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 471", "label": "PROVISION", "start_char": 33128, "end_char": 33134, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 33135, "end_char": 33140, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 195(1)(c)", "label": "PROVISION", "start_char": 33443, "end_char": 33455, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 195(1)(c)", "label": "PROVISION", "start_char": 33710, "end_char": 33722, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 195(!)(c)", "label": "PROVISION", "start_char": 34198, "end_char": 34210, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 195(l)(c)", "label": "PROVISION", "start_char": 34375, "end_char": 34387, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 195(1)", "label": "PROVISION", "start_char": 35015, "end_char": 35024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 195", "label": "PROVISION", "start_char": 35163, "end_char": 35169, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 195(l)(b)", "label": "PROVISION", "start_char": 35754, "end_char": 35766, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 36583, "end_char": 36587, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 195(!)(c)", "label": "PROVISION", "start_char": 36649, "end_char": 36661, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 467", "label": "PROVISION", "start_char": 36684, "end_char": 36690, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 36691, "end_char": 36696, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]} {"document_id": "1971_1_848_864_EN", "year": 1971, "text": "A SOM NAm\n\nUNION OF INDIA & ANR.\n\nMay 25, 1.171 • [G. K. M!TJ'ER, c. A. .VAID!ALINGAM AND P. JAGANMOHAN\n\nREDDY 11.)\n\nPreventio\". of Corruption Act (2 of 1941), •· 5(1)(c}--Scope of.\n\nSanction for pr0Jecution-Principle1 for granting.\n\nPractice and Procedure-Duty of prosecution to examine all Witne.JJes- Scope of.\n\nTho appellant who was a Major in the Military Engineering Service, was in charge of the expansion work of an air strip and was given po5session of the land acquired for that purpose, along with valuable crops standing on the land. He postponed giving delivery of the land to the contractor for the extension work. Instead, he allowed one of the owner, s cf the land to cut the crop and take it away without in any way accounting fer it. A charge-sheet was filed against the appellant under s. 5(1) (c) and s. 5 (l)(d) read withs. 5(2) of the Prevention of Corruption Act, 1947. He was acquitted of the offence under s. 5(1) (d) but was convicted for the offence under •. 5(1)(c) and the conviction was confirmed by the High Court.\n\nIn appeal to this Court, it was contended inter alia (1) that the .; anction &iTen by the Government or bis prosecution did not cover the trial of the char10 under 1. 5(1) (c); and (2) the prosecution did not examine all tht witn...,.. necessary to unfold the story of the prosecution.\n\nHELD: (I) For a sanction to be valid it must be established that the sanction waa aiven in respect of the facts constituting the offence with which tho accused is proposed to be charged. It is desirable that the facts 1hould be referred to in the sanction itself. If they do not appear on th• face of it, tho prosecution must establish aliunde by evidence that tho .. tacts were placed before the sanctioning authority.\n\nThe sanction must disclose that the sanctionin11 authority bad fully applied its mind to the• and the sanction should be correlated to the particular offence or offencH witll which tho accused io cbaried or convicted. [8S2B-F)\n\nIn the present cue, the facts which the Government considered for tho purpose of grantinll sanction were :(a) that the appellant \"'\"' a public servant entrusted with crops standing on tho land acquired for !be exsion of an air field, (b) that by abnsing bis position as a public servant he allowed standing crop to be cut from the said land, (c) that by corrupt or IDegal means and by abusing his position as a public servant be obtained pecuniary advantage of about Rs. 2,000 as the value of the crops that were cut from the land and that he dishonestly or fraudulently misappropriated the same by converting it into his own use. Under s. S(I) (c) of the Act a public servant shall be said to have committed the offence of misconduct in bis duties if he dishonestly allows any other person to convert to his own use property which is entrusted to the said public servant.\n\nThe facts which have been set out in the order granting th• sanction are sufficient to indicate that tho authorities granting the sanction had tho\n\nSOJ.I NATH v. UNION (Jaganmohan Reddy, J.) 849\n\noffence under s. 5(1)(c) in their contemplation. In fact, the order specifi- A cally mentions that provision while granting sanction. Even if there was an inference or implication that the persons cutting the crops were abetting the appellant in the offence the sanction could not be held to be bad on that account. [854D, 855DJ\n\nBhagat Ram v. State of Puniab, A.l.R. 1954 S.C. 621, Madan Mohan Singh v. State of U.P. A.l.R. 1954 S.C. 637, Goku/ Chand Dwarkadas Morarka v. The King, A.l.R., [1948] P.C. 82 and .Jaswant Singh v. State of B Puniab, [1958] S.C.R. 762, referred to.\n\n(2) With reference to each one of the person who, according to the appellant, should have, been called as witnesses there was alerady evidence relating to the particular matter about which those persons would have given evidence.\n\nIn the circumstances the non-examination of other witnesses, without anything more, could not be treated as a defect in the prosecution. [863G] C\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 102 of 1969.\n\nAppeal by special leave from the judgment and order dated April 9, 1969 of the Punjab and Haryana High Court in Criminal Appeal No. 1055 of 1966. D\n\nFrank Anthony and K. B. Rohatgi, for the appellant.\n\nH. R. Khanna and R. N. SachJhey, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nJaganmohan Reddy, J.-This Appeal is by Special leave against the Judgment of the High Court of Punjab and Haryana confirming the conviction of the accused under Section 5(l)(c) of the Prevention of Corruption Act 1947 as also Ille sentence awarded by the Sessions Judge of orie year's Rig';3lmprisonment and a fine of Rs. 2500, in default sl1r m Rigorous Imprisonment.\n\nThe facts of the case in lirief are that in view of the Chinese invasion Air Field at Sirsa required to be extended for which purpose the Ministry of Defence, Govt. of India took steps to acquire some lands of agriculturists pursuant to which a Notification dated November 27, 1962 was issued under Section 4 of the Land Acquisition Act 1884 for acquiring 51.79 acres of land situated in the State of Ahmedpur. On the next day another Notification was issued under Section 6 of the Land Acquisition Act on November 28, 1962 and in view of the emergency action under Section 17 was taken for obtaining possession of the land W'ith a view to its development. The lands which were acquired belonged to several land holders including Moti Ram and P.W. 12 Kewal Chand. The Collector gave his award on 26-2-63 (Ex.\n\nP. 26) in respect of these lands, which actually' measured 49.47\n\n54--1 S. C. lndia/71\n\n85(1\n\nSUPREME COURT llEPORTS .[1971] SUPP. s.c.ll.\n\nacres, at. Rs. 1350 per acre ounting to Rs. 66,784.50 np. Apart from this amount compensation was also awarded for standing crop amounting to Rs. 11,073.13 np.\n\nBefore the land was actually acquired the Appellant who was a Major in the Military Engineering Service was working as a Garrison Engineer and. was incharge of the extension. He had in anticipation of acquisition and execµtion of the work appointed A. B. Ranadive, P.W. ~4 as Assistant Garrison Engineer who was to be responsible for all the matters connected with the acquisition of land, demarcation of boundaries as an Engineer Incharge for execution of the contract and responsible for the maintenance of the Air Field. The work of the extension of Aerodrome was entrusted to one Telu Ram, P.W. 8 Contractor, with whom the M.E.S. Department entered into an agreement on December 3, 1962.\n\nThis agreement was Signed both by the Appellant and P.W. 14. The work according to that agreement was to be done in 2 phases-first phase was to commence on 10th January 1963 and was to be completed by 9th October 1963. After the completion of the first phase the second phase was to start on 10th October 1963 and completed by 9th May 1964. Pursuant to this agreement it is said that symbolic possession of the land which was acquired was taken over by the Tehsildar on !st February 1963, after which at any rate it appears from Ex. P. 24 that actual possession of this land was handed over by the said Tehsildar on 13th February 1963 to the Appellant. The receipt Ex. P. 24 bears the signature of N .. L. Handa, the Tehsildar and of Sukhchain Lal Jain, P.W. 11 on behalf of the Military Estate Officer and the Appellant. From this receipt it is evident that possession of 50.12 acres was handed over by the Tehsildar and taken over by the Appellant and the Military Estate Officer Sukhchain Lal Jain.\n\nThe case of the prosecution initially was that after the land so acquired with the standing crop was taken possession of by the Appellant he sold the crop to Moti Ram and Kewal Chand for Rs. 2500 and facilitated the cutting and taking away of the crop by postponing the handing over of the possession to the contractor till die 5th Aprfi 1963 and misappropriated the money. In respect of this allegation the First Information Report (Ex. P. 29) was issued on 14-1-64 in whkh the following statement is rele vant:-\n\n\"lt is alleged that Major Som. Nath ace.used who is a Garrison Engineer Sirsa Air Field s'ubsequently sometime in the months of March and April 1963 permitted the .removal of the sta, nding crop val11ed at Rs. 11073'-13 by Sbri Moti Ram an_d KCW!!l Chand etc., after ptltig illegal gratification of Rs. 3000 from them. Ma1or Som\n\nSOid NATH v. UNION (Jaganmohan Reddy, J.)\n\nNath did not account for this amount in the Govt. Revenues. He thus abused his position as a public servant and caused pecuniary advantage to said Shri Moti Ram and Kewal Cliand by giving them standing crops ivorth Rs. 13,000 for a consideration of Rs. 3,000 only, which amount he accepted for his personal use and thereby also abused his official position and obtained pecuniary advantage for himself in a sum of Rs. 3000.\n\nThe facts disclose the commission of the offence, of criminal misconduct as defined in Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act 1947 by Major Som Nath accused. A regular case is therefore registered and entrusted to Inspector Baldev Raj Handa for investigation.\" After this F.I.R. certain statements were recorded l)y the Military authorities being DA to DE, OM, DM/l, ON & DL of Mani Ram, Mulkb Raj, Ganpat Ram, Tetu Ram, Kewal Chand and Sukhchain Lal Jain. A chargesheet was filed against the Appel ]ant under Section 5(1)(c) and 5(1)(d) read with 5(2) of the Prevention of Corruption Act on 5-8,1966 after obtaining sanction from the Govt. of India, Ministry of Hlome Affairs on 11th April, 1966 as per Ex. P.23. The Special Judge acquitted the Appellant of the second charge namely that being a public servant he had by corrupt or illegal means or by otherwise abusing bis position as a public servant obtained for himself a sum of Rs. 2,500 from Moti Ram of Sirsa for cutting the crops and thereby committed offence under Section' 5(1)(d) punishable under Section 5(2). The accused was however convicted under the first charge for an offence under Section 5(1)(c) in that he being a Garrison Engi neer incharge of the Air Field Sirsa and in that capacity entrust ed with standing crops of Sarson, Gram and Lusan on 30 acres of land a part of 49 acres of land acquired by the Govt. and which had been valued at Rs. 11.073.13 by the Revenue authorities, dis- , honestly or fraudulently allowed Moti Ram of Sirsa to mi8appro\n\npriate the said standing crop and thereby contravened Section S(l)(c) of the Prevention of Corruption Act punishable with Section 5(2) of that Act. Against that conviction and sentence he appealed to the High Court which maintained the conviction and sentence.\n\nThe learned Advocate for the Appellant has meticulously taken us through the entire documentary and oral evidence and commented at length upon the various contradictions ahd incon gruities. in .the case of the prosecution \"\".Ith a view to establishing that when. the Appellant took possession of the land there was\n\nno cro\" standing on it:...-Otat the po5session of the land was in fact delivered to Tetu Ram, O, ntractor on I 0.1-1963 : that the sai!f <\".Ontractor bad admitted that possession of the entfte land\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nwas received by him ; that he carried on the construction work in extending the Aerodrome; that 200/250 donkeys were also used for doin2 the work by reason of wb.ich the crop was damaged before Tehsildar had put the Appellant in possession of the land and as a matter of fact there was no crop thereon when he got the possession of the land. It was also contended that the High Court had not considered the contradictions in the earlier statement made by some of the witnesses to the Military authorities and that it relied on many of the documents for affirming the conviction of the Appellant without their actually being put to him under Section 342.\n\nBefore we consider these contentions it is necessary to deter mine another submission of the learned Advocate for the Appellant which goes to the root of the jurisdiction of the Court to try the offence, under Section 5(l)(c). H this contention is valid then the conviction of the accused cannot stand and therefore it is necessary to deal with this matter first. It may be mentioned that though a complaint was made in the application for a certi ficate for leave to appeal to this Court that tbe learned Single Judge of the High Court should have acquitted the Appellant on the sole ground that there was no proper sanction for the prosecution of the Appellant under Section 5(1) (c) of the Prevention of the Corruption Act, this question does not seem to have been urged before the High Court. In any case we do not think that there is any validity in the submission that the sanction given by the Govt. of India does not cover the trial of the charge under Section 5(!)(c) of the Prevention of Corruption Act. For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the ac- . cused is proposed to be charged. Though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities. It is therefore necessary to first examine the order of sanction to ascertain on what facts it has been accorded.~\n\nThe sanction that has been accorded is in the following terms: 11th April 1966. \"Whereas it is alleged that Major Som Nath ...... while functioning as Garrison Engineer, M.E.S., Air Field at Sirsa from 13-2-63 to 5-4-1963 by corrupt or illegal means or by otherwise abusing his position, as such public mervant, obtained pecuniary advantage of Rs. 2500 for alfoWiq the standing crops to be cut from the land\n\nacqullied for the extension of Air Field Sirsa ; and or he dishoneltly or fraudulently realised and misappropriated Rs. 2SOO during the aforesaid period as the value of the\n\nSOM NATH' UNION (Jaganmohan Rtddy, J.) 853\n\ncrops cut from the land acquired for the extension of Air Field Sirsa, which crops had been entrusted to him as a public servant and he instead of depositing the said sale price into the Govt. Treasury converted it to his own use;\n\nAnd whereas the said acts of Major Som Nath ... ; .. constituted offences punishable under Section 5(2) of the Prevention of Corruption Act, read with Section 5(1) (c) and (d) (Act No. II of 1947) of the said Act and Sec tion 409 of the I.P.C.\n\nAnd whereas the Central Govt. after fully and carefully examining the materials before it in regard to the said allegations and circumstances of the case, consider that Major Som Nath ...... should be prosecuted in a court of law for the said offences.\n\nNow therefore, the Central Govt. doth hereby accord sanction under Section 197-Code of Criminal Procedure (Act No. 5 of 1898) and Section 6(!)(a) of tire Prevention of Corruption Act, 1947 (Act U of 1947) for the prosecution of Maj. Som Nath for the said offences and for any other offences punishable under the provi sion of law in respect of the afortiaid acts by the Court of competent jurisdiction.\n\nBy order and in the name of the President.\n\nSd/- (A, P. Veera Raghavan) Deputy Secretary to the Govt. of India.\"\n\nFrom the above order it is apparent that the facts which the Central Govt. considered for the purposes of according sanction were (a) that the Appellant as a public servant was entrusted with crops situated on the land acquired for the extension of Air Field, Sirsa;\n\n(b) that by abusing his position as a public servant he allowed the standing crops to be cut from the said land ;\n\n(c) that by corrupt or illegal means and by abusing his position as a public servant he obtained pecuniary advantage of Rs. 2500 as the value of the crops to be cut from the land and/or he dishonestly or fraudulently misappropriated that sum by con verting It into his own use instead of depositing the said sale price in the Govt. Treasury.\n\nOn these facts and after applying its mind as spoken to by P.W. 10 Kalra the Government accorded its sanction for prosecution of the offences punishable under Section 5(2) read with\n\nSUPREM( COURT REPORTS (1971] SUPP. s.c.a.\n\nSection 5(1)(c) and 5(1)(d).\n\nThe question therefore would be whether these facts were sufficient to sustain the sanction wider 5(1)(c) even if the charge under 5(1)(d) had failed. This question in turn will depend upon what are the ingredients of the offences under 5(l)(c) and (d) read with Section 5(2). Under 5(1)(c)-A Public servant is said to commit the offence of misconduct in the discharge of his duty if he dishonestly or fraudulently misappro priates or otherwise converts for his own use any property en trusted to him or under his coi; itrol as a public servant or allows any other person so to do, and tinder (d) if he by corrupt or illegal means or by otherwise abusing his position as a public servant. obtains for himself or for any other person any valuable thing or pecuniary advantage.\n\nIt would be seen therefore that under Section 5(1)(c) a public servant will be said to commit the offence of misconduct in his duties if he dishonestly allows any other persons to convert te> his own use property which is entrusted to the said public servant The facts which have been set out in the order granting the sanc tion certainly are sufficient to indicate that the authorities grant ing the sanction had the offence under Section 5(l)(c) also in their contemplation. In fact the order specifically mentions thisprovision while granting sanction.\n\nWe should have thought this was an obvious conclusion but the learned Advocate for the Appellant strenuously contendeO' that the charge against the Appellant was of a motiveless offence and in any case the facts as disclosed show that not only at the time when the First Information Report was given but even at the time when sanction was accorded that the prosecution wa~ merely concerned with th\" charge that the appellant had allowed the crops to be cut on the condition that Rs. 2500 will be paid and received the monpy and misappropriated or converted it t<> his own use by not paying it into the Govt. treasury. There I! therefore no basis for sanction for a charge under Section 5(1)(c).\n\nIt is further contended that the stand taken by the prosecutioa was that the persons who were permitted to cut the crops had not commiited any offence. If so a charge under Section 5(1) (c) would implicate those persons also in the commission of an offence which certainly would not have been in the contemplation of the authorities granting the sanction. In support of this contention three decisions have been cited before us namely BM€at\n\nRam v. State of Punjab('), Madan Mohan Singh v. State of U. P. ('), and Gokulchand Dw(ll'kadas Morarka v.\n\nThe Kini (')\n\n(1) A. I. R.. 1954 S. C. 621.\n\n(2) A. I. R.. 1954 S. C. 637.\n\n(3) A. I. R,. 1948 Privy Council 82.\n\nSOM NATH v. UNION (Jaganmohall Reddy, J.)\n\nBhagat Ram's case was not concerned with the sanction but only\n\nwith the question, whether the offence could be altered to one of abetment of an offence of Section 409 I.P.C. from one under Sec tion 409 simpliciter. It was held that an alteration of the Appel !ant's conviction under Section 409 I.P.C. into one of abetment thereof would imply a definite finding against the subordinate Judge who is not before the Court and as such it would be unfair to make such an alteration. We do not see how this case can assist the appellant because in the first place there is no question of an alteration of the charge and secondly the circumstance that someone who is not a public srvant abetted the appellant is hardly relevant. But even so the offence with which the appel !ant is charged under Section 5(l)(c) does not necessarily involve an abetment with the person whom he had dishonestly allowed to cut and take away the crop. For instance it is quite possible that the person whom he allowed to cut the crop may be his own relation or friend in whom he may be interested and who may, however, not know that the accused was doing something dis honest in permitting him to cut the crop. In any case the facts which have been stated in the sanction clearly indicate that the appellant has dishonestly allowed the crops to be cut so that there is no question of any inference or implication that the peri Engineer saying as follows :-\n\n\"You have verbally asked me now to take the site after the crop is cut and the necessary marking of the alignment has been taken in hand but this handing over has not been shown on the site order book by the A.G.E.\n\n(BIR) despite my request.\n\nHe may please be asked to complete this formality without any loss of time.\"\n\nIn reply the Appellant states in hls letter Ex. P. 12 dated the\n\n10th April \"The matter has already been discussed with you and finalised. No further action Is required to be taken\".\n\nIt can be seen from the above that the appellant is reluctant to reply in writing as to what he is asking the contractor to do under verbal orders while the contractor for safeguarding his position is insisting on having it in writing.\n\nThe Trial Court as well as the High Court are in our view, justified in holding that crops of Sarson, gram and lusan were standing on the land acquired by the Military for extension of the Aerodrome. It will also justify the conclusion that they were there at any rate till the 20th March 1963 and according to the letter of the contractor (J'. W. 8) on 23-3-63 they were completely cut. In so far as handing over of the possession of the land to the Contractor (P.W. 8) is concerned, the Trial Court and the High Court are equally justified in coming to the conclusion that the accused had not delivered the possession of the land to the contractor till quite late as would appear from the letter of P.W. 8 dated the 5th April, 1963.\n\nWe are aware of the argument addressed before us that some of the witnesses had said that the water channels had been closed in Febiiiary 1963 and therefore no crop could thereafter have been standing on the land and must have been destroyed.\n\nThere is also the further argument that some of the statements recorded by the Military authorities were not taken into account, as the High Court had thought that since the deponents denied the contents the officers who recorded the statement might have been called to show that they were properly recorded.\n\nThe learned advocate for the respondent also tried to support the stand taken by the High Court. It is true that when a witness has admitted having signed his previous statements that is enough to prove that some statement of his was recorded and he had appen ded his signature thereto. The only question is, what use can be made of such statements even where the witness admits having signed the statements made before the Military Authorities. They\n\n$62\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\ncan at best be used to contradict in tbe cross-examination of such a witness when be gives evidence at the Trial Court of tbe accuied in the manner provided under Section 145 of the Evidence Act.\n\nIf it is intended to contradict the witness by tbe writing, the atten tion of the witness should be called before the writing can be proved to those parts of it which are to be used for the purpose of contradicting him. If this is not done, the evidence of the witnesses cannot be assailed in respect of those statements by merely proving that the witness had signed the document. When the witnesses are contradicted by their previous statements in the manner aforesaid, then that part of the statements which has been put to the witness will be considered along with the evidence to assess the worth of the witness in determining his veracity.\n\nThe whole of the previous statement however cannot be treated as substantive evidence.\n\nWe do not find that tbe assessment of the evidence by the Trial Court and the High Court even in the light of such of those previous statements that have been put to the witnesses in the manner stated above is in any way unjustified.\n\nIt is said that some of the documents i.e. Ex. 8, IO and 11 have not been put to the witnesses even though the Court relied upon them. Ex. P.8 as already noticed is the letter of Telu Ram Jain to the Assistant Garrison Engineer and P. IO is the letter of Telu Ram Jain to to the Garrison Engineer.\n\nBoth these related to possession of the acquired land not being given to him. In the examination of the accused under Section 342 the Special Judge in our view did put all the circumstances against the accused which formed the basis of the conviction. He was asked about the symbolic deli very of possession, the handing over of the actual possession of the land on 13-2-63 and the existence of crops on the date when posses sion was delivered on 16-2-63. He was asked about Telu Ram's evidence and also that he had given possession of the land RD 1200 to RD 00 to the contractor after the crop had been cut. The letter Ex. P. 13 was also put to him and he was asked about the existence of the crops. It cannot, therefore be said that circum\n\nstances appearing against the accused which have formed the basis of the conviction had not been put to him. The appellant has denied that there was any standing crop on the land acquired on any date after 13-2-63. On tbe other hand, he emphatically asser ted that at the time when the possession was delivered to him on 13-2-63 there was also no crops standing on the acqnired land.\n\nThis statement is clearly false as it Is against credible documen tary evidence at a time when there was no possibility of any charge being levied against the appellant. It is also incorrect because the contractor did not work on the acquired land since 1-2-63 that position is reflected in the review report initiated by the A.G.E. on 9-2-63 (vide Ex. DQ). The appellant's statement is therefore\n\nIOM NATH .. UNION(Jaganmohan Reddy, J.)\n\nbelied by the documentary evidence which shows unmistakably that there was on 13·2 63 bumper crops of different varieties standing on the land which was valued thereafter and compensation assessed. We do not, therefore, think that there is any justi fication in the criticism .that the circumstances appearing in the several documents have not been put to him.\n\nIt is lastly contended that certain witnesses who would be necessary to unfold the prosecution story have not been called and in spite of the Court directing the production of the usufruct register it was not produced. These omissions it is submitted by the learned advocate has prejudiced the accused. As the learned advocate for the respondent rightly pointed out with reference to each one of the persons who, it was claimed, should have been called, that there was already evidence relating to the particular matter about which the person specified was sought to be called.\n\nFor instance, it is said that Gamkhar, Military Estate officer was not produced to prove the receipt Ex. P. 24. But this was not necessary because Gamkhar was not present nor did he sign the receipt.\n\nThe person who had signed tbe receipt is Sukhchain Lal. Jain and he was examined as P.W. 11. Similarly, it is said that the Tehsildar N. L. Handa has not been produced. But when the prosecution relies upon the proof of Ex. P. 24 as also to establish that there was standing crops on the land when the possession was delivered on 13·2·63 on certain witnesses who were present on the respective occasions, the non-examination of other witnesses without anything more cannot be treated as defect in the prosecution. Before the High Court also this grievance was aired but that Court also likewise found no justification in it. We are therefore not impressed with this argument. On a careful considerathn of the evidence both oral and documentary it is established that the Appellant who was in charge of the expansion work on the air-strip was given possession of the land acquired for that purpose on 13-2-63, that there was standing thereon, a bumper crop of Sarson, gram and Lusan on that day, that he was therefore entrusted with this crop, that he postponed giving delivery of the land to the contractor till, at any rate after the 23rd March, 1963 and before the 6th April, 1963 and that he allowed the crop to be cut and taken away without in any way accounting for it which shows that it was done dishonestly and\n\nSUPREHB COUllT Rl!PORTS [1971] SUPP.1.c.:1..\n\nfraudulently. The fact that notwithstanding overwMlming evid ence particularly of his own llubsisted, and thirqly, that even If the Labour Court could enter into such anterior facts, its construction of the Meher award was patently wrong.\n\n' The question as the scope of jurisdiction of a Labour Cour:t under sec. 33C(2) has been a subject-matter of several decisions d this Court. It is not necessary to go into those deciSions once :again as fo the Chief Mining Enginer, East India Coal Co. Ltd.,\n\nSUPREME COURT REWRTS [1971] SUPP. S.C.Itv. Rameshwar(1) all those decisions were examined and the propositions dedueible from them were formulated.\n\nAs stated in propositions (5) and (8), proceedings under sec. 33C(2) are analogous to execution proceedings and a Labour Court called upon to compute benefits claimed by a workmen is in the position of an executing court and as such competent to interpret an award where there is a dispute as to the rights thereunder or as to its correct interpretation. Obviously, if the award is unambiguous, the Labour Court is bound to enforce it, and under the guise of interpreting it, it cannot make a new award by adding to or substractlng anything therefrom. Although it cannot go behind the award, it is nevertheless competent to construe the award where it is ambiguous and to ascertain its precise meaning, for, unless that is done, it cannot enforce the award when it is called upon to do so by an application under Sec. 33C.\n\nAs held in The Central Bank of India v. Rajagopalan('), a claim under Sec. 33C (2> postulates that the determination of the question about computing in terms of money may in some c:ases have to be preceded by an inquiry into the existence of the right. Such an inquiry is incidental to the main determination aiisigned to the Labour Court by that sub-section. While inquiring into the question as to the existence of such a right, and construing the award, the Labour Court can look into the demand by the workmen in order to ascertain whether the award under which the right Is claimed was or was not beyond the scope of the dc•marid ; in other words, whether the award was within jurisdiction. (cf. also Bombay Gas Co.\n\nLtd. v. Gopa/-Bhiva(').) This position was conceded by Mr. Tarkunde.\n\nDemand No. 9, which related to dearness allowance, was that \"the scheme of dearness allowanc:e at present in force should be revised on the follow'ing lines ...... \". The lines for revision were, firstly, as to the basic bracket in the index of cost of living.. i.e., 351-360 instead of 371-380, secondly, as to the percentages of variation, and thirdly, as to the raising of the minimum dearness allowance from Rs. 75 to Rs. 90. An argument was raised, both before the High Court and rep-..ated before us, which emphasised !he word 'revise' in the demand for dearness allowance .as against the word 'abolish' in demand No. 2 which was concerned with grades and wage scales. We may not give any undue importance to the use of such a different phraseology in the two demands, for, such demands cannot be expected to have been drafted with meticulous care as to the precise meaning of each of the words therein.\n\nBut there is no gain-saying. that demand\n\n(!) [1968] I S. C.R. 140,\n\n<2) [1964] 3 S. C.R. 140, U2.\n\n(3) [1964] 3 S. C.R. 709, 71S-716.\n\nVOLTAS v. J, ),(, DBME'.LO (She/at. J.)\n\nNo. 9 did postulate that there was a dearness allowance scheme existing in the company when those demands were served on the company and the workmen felt that it did not adequately neutralise the rise in the cost of living, and therefore, the scheme should be revised as regards the basic bracket, the percentages of variation and the minimum dearness allowance payable under that scheme. This is evident from the contentions of the parties before the Meher Tribunal which noted them by stating that whereas the workmen contended that \"the existing dearness allowance scheme\" did not adequately neutralise the rise in the cost of living, the company's conten1ion was that \"the existing scale is fair\", but that the company showed its willingness to \"revise\" the scheme by accepting the percentagi:s of variation suggested by the workmen provided they did not press their demand for revision of wage scales. It is clear from the award also that that tribunal, in the light of these rival contentions, held that \"some revision in the dearness allowance scheme is necessary\", and revised it by directing that the percentages in the variation should be 5 % for the first slab, 21% for the second and 11% for the balance and 3 % on the minimum dearness allowance. It raised the minimum from Rs. 75 to Rs. 77, but declined to revise the basic _Qrai; ket in the index of cost of living from the existing 371-380\n\nto'-351-360 demanded by the workmen.\n\nThere can, therefore, be no doubt whatsoever that there was an existing scheme of dearness allowance, that workmen felt that it was not satisfactory and wanted its revision in certain particulars, viz.. in the percentages of variation, the basic bracket and the amount of the minimum. In paras 145 to 14 7 of its statement of claim before the Meher Tribunal, the union set out \"the existing scheme for dearness allowance\", the demand for a revision, viz., in the basic bracket, in the percentages of variation and the minimum, and claimed that \"the existing dearness allowance scheme\" 'failed to meet its object of neutralising the rise in the cost of living, and also claimed, by citing dearness allowance paid by other companies, that the dearness allowance paid by the company was the lowest. In para 125 of its written statement, the company, on the other hand, pleaded that the existing scheme was fair, having regard to the scales of pay, allowances and other terms and conditions, and said that it was agreeable to have a revised scheme set out therein if the workmen did not press for revising the wage scales. In the revised scheme suggested by it, It adopted the variation percentages demanded by the worKmen, but insisted that the minimum should remain the same, viz., Rs. 75.\n\nNo doubt, neither the statement of claim by the union. nor the written statement of the company referred to the maximum and clearly for that reason tlie Tribunal also in its award did not refer to it and concerned itself with the contentions of the parties, (l) as\n\nSUPRE.MJ! COURT Rf'1'0RTS [1971] SUPP. s.c.I!..\n\nto the basic bracket, (2) the percentages of variation and (3) increase in the minimum.\n\nThe principal controversy between the parties, as is clear from the opening paragraphs of th•! judgment of the Labour Court, was whether the scheme of dearness allowance, as revised by the Tribunal, contained the ceiling. As already stated, the case of respondent I was that he was entitled to the dearness allowance as set out in his application, that under the award there was no ceiling and that by paying Rs. 350 per month., the company withheld from him the benefit accruing to him under the award. The company, on the other hand, alleged that though the award revised the scheme of dearness allowance as prevailing in the company, it did not affect th.e existing ceiling of Rs. 350, and therefore, there was no question of respondent 1 being deprived of any benefit due to him under the award. Thus, the controversy between the parties before the Labour Court was whether there was a ceiling in the existing scheme, and if so, whether the Meher award did away with that ceiling.\n\nThe award, of-course, could not do away with such a ceiling, if it was there, unless demand No. 9 and the Reference to the Meher Tribunal based on that dema.nd contained anything whkh required its deletion, or the demand was for a new scheme of dearness allowance altogether and nqt merely for a revision of the existing scheme. It is true that neither demand No. 9 nor the Reference, nor the company's written statement before the Tribunal expressly mentioned the ceiling of Rs. 350 per month. But the company's case before the Labour Court clearly was that there did exist in the prevailing scheme such a ceiling, that it was not mentioned in its reply before the Tribunal because demand No. 9 raised no controversy about it, nor did it call upon the Tribunal to delete it and that the controversy between the parties in that Reference related only to the question as to the basic bracket, percentages of variation and the increase in the minimum.\n\nUpon such a case being before the Labour Court, that court had to and was competent to decide the question whether there was a ceiling in the existing scheme, and if so, whether it was deleted by the Tribunal, in other words, whether the demand was for doing away with the existing scheme and substituting it by a fresh scheme which had no ceiling. For that purpose, the Labour Court had necessarily to examine demand No. 9, the Reference, the pleadings of the parties, and lastly, the Meher Award, and incidental to such an inquiry it had to examine the question whether there was a ceiling in the scheme existing at the time of that demand and referenc, e. (See in this connection Ramkrlshna Ramanath v. The Presiding Of/leer. Labour Court,\n\nVOLTA$ v. J. M. P~MILLO (She/at, J.) 877\n\nNagpur (').) In doing so, the Labo~ Court had to examine the various stages the dearness allowance scheme had from time to time gone through.\n\nAdmittedly, the Bakhale award did contain the maximum.\n\nThat scheme was revised by the circular, dated November 16, 1953, by which the dearness allowance was linked, with the cost of living and the maximum was raised from Rs. 165 to Rs. 300. That award was terminated and a fresh demand in respect of dearness allowance was made on August 18, 1956. The demand was that the scheme of dearness allowance \"at present in force should be revised on the following lines ...... \" The demand resulted in the\n\nsettlement, dated August 30, 1957. Neither the demand nor the settlement contained any reference to the maximum of Rs. 300 although it did exist in the existing scheme. The case of respon dent 1 was that the said settlement did away with such a maximum and that from 1957 onwards there was no ceiling at all. This case was seriously controverted by the company which produced before the Labour Court the circular, dated March 12, 1959, by which it said that the maximum was raised from Rs. 300 to Rs.\n\n350 with effect from April l, 1959. The case of respondent 1 with regard to this contention of the company was (1) that no such circular was issued, at least to the knowledge of the union, and\n\n(2) that even if it was issued, it was confined to the officers of the company and did .not apply to workmen. The Labour Court held that the circular was issued and that its interpretation by respon dent I that it applied to officers alone was not correct. The circu lar was issued to \"all officers\" of the company. It applied to all the employees of the company as is evident from its para 2 which stated as follows :\n\n\"Dearness allowance will continue to be paid on usual basis at the rates applicable at each place subject to the maximum stated above.\"\n\nIt also stated that it superseded all other previous circulars. If this circular was issued, as the Labour Court held it was, there can be no doubt that (1) there was a ceiling in the scheme prevalent at that time, (2) that it was raised to Rs. 350 and (3) that it applied to all the employees and not merely to the officers. The G Labour Court also accepted the company's case that the circular was notified on the notice board of the company and that that amounted to a notice of a change under sec. 9A of the Industrial Disputes Act. In any event, the change did not adversely affect the workmen. Nor was the question as to its validity before the Labour Court, which used the circular as evidence of a ceiling H existing in the scheme right from the time of the Bakhale award.\n\n(I) {1970] 2 L. L. J. 306.\n\nSUPRBKB COURT IU!PORTS [1971] SUPP. s.c.a.\n\nIf from all this evidence before it the Labour Court came to the conclusion that a ceiling existed in the scheme of dearness allowance prevailing in the company at all the various stages and that deletion of such a ceiling was not the subject-matter of either demand No. 9 or of the reference bo:fore the Meher Tribunal, and that its award was confined to thi: revision only of the existing scheme in the three matters earlier referred to, it is not possible to say that the decision of the Labour Court suffered from an error apparent on the face of its decision iin respect of which a certiorari can justifiably be issued under Art. 226. The confines of jurisdiction under Art. 226 have been settled by a series of decisions of this Court, from among which we need mention only the case of Syed Yako0b v. K. S. Radhakrishnan('). There was no question of any estoppel also against the company against its raising the question of the ceiling in view of the finding by the Labour Court that the question of the ceiling wru: not the subject-matter of the reference before the Meher Tribunal. Such a conclusion of the Labour Court could not be interfered with by the High Court on any one of the well-known grounds on which only such interference is permissible.\n\nThe High Court, therefore, was not justified in interfering with the Labour Court's order under its writ jurisdiction. The appeal has, therefore, to be allowed, and lhe writ petition of respondent\n\nI dismissed. In the circumstances Of the case, however. we think it just toot there should be no order as to costs.\n\nG.C.\n\nAppeal allowed.\n\n(I) [1964] S S. C. R. 64.", "total_entities": 29, "entities": [{"text": "MfS. VOLTAS LTD", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "M/S. VOLTAS LTD", "offset_not_found": false}}, {"text": "J. M. DEMELLO & ANR", "label": "RESPONDENT", "start_char": 18, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "J. M. DEMELLO & ANR", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 59, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "A N. RAY, JJ.", "label": "JUDGE", "start_char": 73, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "A.N. 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C.R. 140", "label": "CASE_CITATION", "start_char": 25566, "end_char": 25586, "source": "regex", "metadata": {}}, {"text": "[1964] 3 S. C.R. 709", "label": "CASE_CITATION", "start_char": 25597, "end_char": 25617, "source": "regex", "metadata": {}}, {"text": "sec. 9A", "label": "PROVISION", "start_char": 33924, "end_char": 33931, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 33939, "end_char": 33962, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 34911, "end_char": 34919, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 34956, "end_char": 34964, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1971_1_879_899_EN", "year": 1971, "text": "STATE OF MAHAKASHTRA & ANR.\n\nLOK SHIKSHAN SANSATHA & ORS.\n\nJuly 26. 1971\n\n[S. M. Surn, C. J., G. K. MITTER, C. A. VAIDIALINGAM,\n\nP. JAGANMOHAN REDDY AND I. D. DUA, JJ.]\n\nEducation-Grant-in-aid System, r. 3(1) and (2)-lf vague or ambigu- .ous-Executive instructions. Constitution of India, 1950, Arts. 14, 226 and .. 358-Jurisdiction of High Court in relation to policy of giving grants to educational institutions.\n\nGrant-in-aid Code if violative of Art. 14. Period of Emergency-Artitle 358 if protects Executive instructions from attack under Art. 19.\n\nThe grant-in-aid system was introduced in 1859 and its main object was to permit voluntary effort and reliance on local resources in the field of education apart from such contributions as may be available from the funds of the State. After the re-organisation of the State of Bombay a unified code of grant-in-aid to non-government secondary schools throughout the State was introduced by the State from the yeas 1963-64. Under\n\nr. 2(1) an application for permission to start a secondary sch~ has to be made in the prescribed form and such application has Y> reach the presl!dbed authorities by the end of October in the year preceding the year in which the school was proposed to be started. Under r.\n\n2) the manage~ ment which was permitted to open a school has so ap y for recognit!on of the school and under r. 3, a school seeking rec nition shall satisfy the Department that the school was actually nee in the locality that it did not involve any unhealthy competition with any existing institution and that the management was competent, reliable and was in the hands of a properly constituted authority or committee.\n\nUnder r. 3(3) one of the conditions which bas to be satisfied is regarding the financial stability of the proposed school. Other conditions which had to be satisfied by a pro posed school are enumerated in the remaining 13, clallses of the rule. Rule 86(2) provides that schools which are not registered under the Societies\n\nRegistration Act, would not be eligible for grant.\n\nOn October 'ti, 1965, the State issued a press-note calling attention of all the managements intending to start new secondary schools to the relevant provisions of the Code. It was also stated that applications received for starting new schools would be scrutinised and considered by the District Committee comprising of the Chairman of the Education Committee, Zila Parishad, Parishad Education Officer and a member of the S:condary\n\nSchodl Certificate Examination Board, Poona, or Vidarbha Board of G Secondary Education, Nagpur, that is, by persons who were familiar with the conditions prevailing in the particular areas, and the requirements in the area for a new or additional school, and that permission to start a new school would be communicated to the applicants concerned by the Deputy Director of Education of the region by the end of February. The applicants were also informed that the appeals to the Government against the orders of the Depu}:y Director of Education could be filed up to end of March, 1966. On the same date, B Government sent communicationsfor taking steps for constituting the\n\nDistrict Committees. The State also sent a circulas on the same date to the various educational authorities stating that the Disrict Committees\n\n8~0\n\nF •\n\nSUPREME COURT REPORTS [19il] SUPP. s.c.R.\n\nshould bear in mind, whea considering the applictions, the various.matters enumerated in items 1 to 14 which relatc:d to the requirement of a school or an additional school in a particular are:a, its financial stability, the nature and competency of the management and several allied matters. It was obligatory on the District Committee to record its reasons in writing for recommending or not recommending a particular application, which would be considered by the Deputy Director of Education of the concerned region before granting or refusing permission to start a new school.\n\nThe applications of the three applk:ants-societies were scrutinised b~ the concerned District Committees along with the applications and objec tions of rival applicants. In the case of the first applicant-society the District Committee recommended the rival applicant on the grounds that the applicant society had no funds but that the rival applicant was of good financial position and experience. 'fhe Deputy Director of Education accepted the recommendation and rejected the first applicants• application stating that the need of the place had been fulfilled by permitting the rival society to open a school at the place.\n\nIn the case of the second applicant the Deputy Director of Education rejected the application on two grounds, namely: (a) that the application was made after the prescribed date, and (b) that the society was not registered. The appeals of these applicants to the State Government were rejected and they filed writ petitions in the 1-ligh Court for striking down r. 3 of the Grant-in-aid Code.\n\nIn the case of the third applicant, in spite of objections by a rival who was already conducting a school in that area the District Committee recommended the grant of permission to the applicant on the grounds that the applicant society was a good, experienced and popular society and it was also financiaHy sounC.; and that the: population of the areas demanded as an absolµte necessity an additional S<:bool from standard VIII onwards.\n\nThe society which was already runnin1: a school filed a writ petition to quash the permission granted to the third applcant.\n\nThe High Court struck down els. 1 and 2 of r. 3 of the Code as violative of Arts. 14 and 19 of the Constitution and directed the educational authorities to grant permission to the first two applicants to start schools as desired by them. It dismissed the 'vrit petition filed for quashing the permission granted to the third applic:ant.\n\nThe High Court also made certain observations regarding the policy that should be adopted by the educational authorities in the matter of permitting the starting of a new school or an additional school in a particular area.\n\nIn appeals to this Court,\n\nHELD : (I) The High Court had misunderstood the nature of its jurisdiction when dealing with the claims of the first two applicants. It was not for the High Court to lay dowo the policy that should be adopted by the educational authorities in the matter of granting permission for starting schools.\n\nThe question of poHcy is essentially for the State and such policy will depend upon an overall assessment of the requirements of the residents of a particular locality and other categories of persons far whom it is essential to provide for education. If the overall assessment is arrived at after pror classification on a reasonable basis, it is not for courts to interfere with the policy leadi11l! up to such assessment. [887E-H]\n\n(2) aauses (I) and (2) of r. 3 are not vague or ambiguous in any respect. Tuey should not be considered in isolation. If Ibey are interpreted having due regard to the various othe:c matters contained in other clauses of the rule and the detailed instructions contained. ·\n\nl(AHARASHTRA v. LOKSHIP:SHAN SANSTHA (Vaidialingam. J.) 881\n\nof the rule and -the detailed instructions contained in the cjrcular letter. the District Committee had ample guidance for deciding the need of a particular locality to have a school or an additional school, as also the further questions regarding the competency and reliability of the management. [895D-E; F-H]\n\n(3) The provisions of the Code are executive instructions and are in the nature of administrative instructions without any constitutional f.Jrce.\n\nThe State Government was competent to issue those executive instructions for the guidance of the educational authorities dealing with the applications for grant of permission to start schools, and they are perfectly valid. The applications in the present case were considered during the period when the Proclamation of Emergency was in operation.\n\nArticle 19 could not therefore be invoked by the first two applicants and the view of the High Cowrt that Art. 358 did not save t, he two clauses of r. 3 was erroneouse.\n\n[888A-B; 892C-E]\n\n(4) (a) The High Court erred in striking down the two clauses on the ground that unless a school was started in accordance with the rules con~ tained in the Code they would not be recognised by the Secondary School\n\nBoards and students studying in such schoois would not be able to appear for the 'examinations held by the Board and the University, and therefore, were violative of Art. 14. The provisions regarding grant of permission and recognition of schools under the Code are merely intended for the purpose of receiving grant from the Government, and are not concerned with the effect of starting e. school without complying with the require~ merits of the provisions of the Code or in the face of refusal of permission by the educational authorities.\n\nSo far as the distribution of grant to the schools recognised under the Code was concerned it was not the case of any of the applicants that such grants were being made arbitrarily or any discrimination was sliown in that regard.\n\nIt was also not the case of the applicants that the District Committees had acted arbitrarily, nor was it their case that the Depuy Director of Education had not based his decision on the recommendations of the District Committees. There was thus no violation of Art. 14. [892G-H; 893B-C, D-1]\n\n(b) The mere fact that there was no right provided for the applicant being heard before the application was rejected could not be a ground for holding that there was violation of the principles of natural justice. The particulars which had to be mentioned in the prescribed application, form\n\nare very elaborate and complete. The provisions in the Code read along F with the instructions given by the State in its circular letter referred to various relevant material factors that had to be taken into account for the purpose of deciding whether the application was to be granted or not.\n\nWhen all the relevant circumstances, claims and objections of the applicants and their rivals had been taken into account by the District Committees and the educational authorities there was no violation of any principle of natural jvstice. It was not the case of the applicants that the reasons given for rejection of their applications were not covered by the provisions con G tained in the Code. [893H ; 894D-EJ (S) The High Court erred in issuing a mandamus to the State without considering the •arious reasons given by the Deputy Director of Educa .. tion for rejecting the aJiplication of tho first two applicants.\n\n(a) Tho reason given by tho Deputy Director ot Education with respect to the first al!Plicant for rejecting i!S application was. that tho need of the place had been fulfilled by permitting another society to open the H school at the place, on the recommendations of the District Committee.\n\nIt wu open to the authorities to refuse permission if tho school is not in a finanoially sound position.\n\n[896B-D, GJ 56-1 S.C.India/71\n\n882 SUPREME COURT Rll!ORTS\n\n(J97J)\"6UPP. S.C.R.\n\n(b) In the case of the second applicant the reasons given were that\n\nthe. application was sent after the prescribed date and th1t the society was not registered. Therefore the rejection was on valid grounds. [897D-E]\n\n(6) In the case of the third applica.nt, from the mere fact that by giving it permission to open another school some of the students of the rival society's school may seek admissicin in the new school, could not be a ground for stating that the rival silciety's legal rights had been ina... fringed.\n\nIn granting permission to another society no extraneous or irre~ levant matters had been taken into accoJJnt by the District Committee or the educational authorities.· The reasdns given by the District Committee for granting permission were valid rea~.ons and the High Court rightly rejected the petition of the rival society. [8980-HJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 160, 161 c and 878 of 1968.\n\nAppeals from the judgment and order dated December 2, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Applications Nos. 420 and 421 of 1966 and 694 of 1965.\n\nNiren De, Attorney General, B. D. Sharma and S. P. Nayar, D for the appellants (in C.As. Nos. 160 and 161 of 1968).\n\nW. S. Barlingay and A. G. Ramaparkhi, for the appellant (in C.A. No. 878 of 1968) and respondents Nos. 1 and 2 (in C.A.\n\nNo. 160 of 1968).\n\nA. G. Ratnaparkhi, for respondents Nos. 1 and 2 (in C. A.\n\nNo. 161 of 1968).\n\nM. R. K. Pillai, for respondent No. 2 (in C. A. No. 160 of 1968).\n\nNiren De, Attorney General, B. D. Sharma and S. P. Nayar, for respondent Nos. 1 and 2 (in C.A. No. 878 of 1968).\n\nBishan Narain, S. K. Bisaria and T. L. Garg, for respondent No. 3 (in C.A. No. 1878 of 1968).\n\nThe Judgment of the Court was delivered by\n\nVaidialingam, J.-AJl these three appeals, on certificate, are directed against the common judgement and order elated December 2, 1966 of the Bombay High Court in Special Civil Applications Nos. 694 of 1965 and 420 and 421 of .1966. Civil Appeals Nos. 160 and 161 of 1968 are fifod by the State of Maharashtra and the Deputy Director of Education, Nagpur against that part of the order 'of the High Court allowing Special Civil Applications Nos. 420 and 421 of 1966 after holding that ds. (I) and (2) of s. 3 of the Grant-in-aid Code (hereinafter to be referred as the Code) are invalid and directing the State of Maharashtra to grant\n\nMAHARASHTRA v. LOKSll!KSllAN SANSATllA (Vaidialingam, J.)\n\nthe petitioners in the said Special Civil Applications permission to start schools in the areas concerned as desired by them. Civil Appeal No. 878 of 1968 is by the applicant in Special Civil Application No. 694 of 1965 against the order of the High Court dismis- .sing his writ petition and declining to interfere with the order of the State and educational authorities granting permission to the third respondent in the appeal to open, a new school at Sakhar- Jcherda with VIII and IX classes.\n\nWe will first deal with Civil Appeals Nos. 160 and 161 of 1968 and refer to the facts leading up to those appeals.\n\nCivil Appeal No. 160 of 1968, as mentioned above, arises out of the order in Special Civil Application No. 420 of 1966. The applicant in the said appiication Loka Shikshan Sanstha Anjansinghi made an application dated October 30, 1965 to the Deputy Director of Education, Nagpur for permission to open a school during the year 1966-67 at Anjansinghi in Amravati district. The application was sent in the prescribed form. Therein it was stated that the Management was not registered and that it will get itself registered by about the middle of January, 1966. Under the heading \"Arrangements made for necessary furniture and apparatus\" in col. 13, the applicant stated that they proposed to spend about Rs. 2,000 in respect of furniture, science, apparatus, teaching aids, teaehers library and pupil's library. The break up of the figures under these heads was also given. In col. IS under the heading \"Funds at the disposal of the management in addition to those in col. 13 above\", the applicant stated Rs. 5,000 only. The applicant further stated under col. 17 that it required only a token grant in the first year of recognition and a regular grant at the prescribed rate from the second year.\n\nThe Ashok Education Society, Ashoknagar, the third respondent in the writ petition, had also applied to the educational authorities to start a school during the same year at Anjansinghi. The writ petitioner filed an objection dated March 8, 1966 before the Deputy Director of Education, Nagpur objecting to the grant of permission asked for by the Ashok Education Society, Ashoknagar on the ground that the said Society is an outside agency. In the said petition the applicant requested for favourable consideration of his application, already submitted, to the authorities. The District Commitee which scrutinized the applications of both the parties re- commended that the application of the wr\\t petitioner should be Tejected as it had no funds. Another Society with good financial\n\nposition and experience was recommended by the Committee.\n\nThe District Com, mittee recommended that Ashok .Education Soeiety should he granted permission as it was a good, experienced aad popular society and it wafalso financially sound. The Deputy Director of Educationliy his order .dated April 12,1966 rejected the application of the wtit petitioner on the ground that the need\n\n883 (\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R\n\nof the place has been fulfilled by permitting another society to open a school at the place. The petitioner was further Informed that in case any school is started when permission has been refused, serious view will be taken by the educational authorities.\n\nThe writ petitioner filed an appeal on April 21, 1966 to the State Government wherein he prayed for withdrawing permission granted to the Ashok Education Society, the third respondent and also requested that permission may be granted to the applicant society tq open a school. This appeal was rejected by the Government by its order dated IO!l6th May, 1966.\n\nThe applicant society filed writ petition and prayed for striking down r. 3 of the Grant-in-aid Code framed by the State of Maharashtra as unconstitutional and violative of fundamental rights guaranteed under Art. 19(1)(c) of the Constitution and to quash the orders of the Deputy Director of Education and the State Government refusing permission to the petitioner Soc:.ety to start a schod! at Anjansinghi. The applicant further prayed for a direction being issued to the educational authorities to grant permission to start the school as requested by it.\n\nAs common contentions had been raised by the State of Maharashtra in this writ petition and also in Special Civil Application No. 421 of 1966 before the High Court, we will refer to those contentions after adverting to the facts in Special Civil Application No. 421 of 1966.\n\nCivil Appeal No. 161 of 1968 arises out of Special Civil Application No. 421 of 1966. The applicant therein Sri Nana Guru Shlkshan Sanstha, Shirkhed sought permission of the Deputy Director of Education to start a school at Shirkhed from June 1966. The request was made by a letter dated October 29 ,1965 and the application was not made in the prescribed form. The Parishad Education Officer, Zila Parishad, Amravati by his communication dated November 15, 1965 forwarded the prescribed application form to the applicant with a request to have the particulars mentioned therein properly filled in and to submit the same immediately. The application in the prescribed form was sent by the applicant on November 3, 1965. In Cc.!umn No. 4 under the heading \"whether the management is regb:tered\" the answer given wa• \"no\". Under the same column to the further query \"if not, whether it is intended to get it registered!. If so when\" the answer given was \"within a month\". In column 13, th.e expenditure proposed to be incurred regarding furniture: etc. the applicant stated that about Rs. 800 was intended to be i; pent. The break up in respect of the various items was also given. Under column 15 regarding funds at the disposal of the manageent, it was stated tat a su~ of Rs. 5,000 was available. The thtrd respondent therem Swann Vivekanand Shikashan Sanstha, Lehgaon had also made aru\n\nMAHARASHTRA v. LOKSHIKSllAN SANSAllIA (Vaidialingam, J.) . 88 5\n\napplication. for. opening a school at Shirkh~. The applicant fi!ed. an objection on January 5, 1966 to the grant of any penniss1on to the thrrd respondent. The Deputy Director of Education by. his o_rer dated April 11, 1966 rejected the application of th.e wnt petitioner on two grounds namely, \"(!) the application is after th7 .Prescribed dat~ and (2) the Society is not registered.'; The pettt10ner was also mformed that if a school is started when permission has been refused, serious view will be taken by the educational authorities.\n\nThe appeal filed by the writ petitioner to the State Government was rejected by the latter by its order dated May 10/16th, 1966. The applicant filed . Special Civil Application No. 421 of 1966 praying for striking down r. 3 of the Grant-in, aid Code as unconstitutional and violative of Art. 19(l)(c) of the Constitution.\n\nThe orders refusing permission to the Society to start a school were also sought to be quash. ed. A further prayer was made for directions being issued to the authorities to grant permission to the Society to start a second school at Shirkhed as desired by it.\n\n1 The State Government contested both the Special Civil Appli cations. It was pcYinted out that the rules contained in the Grant-'\n\nin-aid Code were all executive instructions given by the State to th.e educational authorities for proper guidance in the matter of considering applications for starting schools which required grants to be made by the Government. None of the rules contained therein violated any fundamental rights of the applicants. Even if Art. 19 can be invoked, the restrictions regarding the starting of schools were all reasonable restrictions in the interest of gene\n\nral public. No restriction has been placed on the applicants form ing associations or unions as contemplated under Art. 19(! )(c) and that in any event the restrictions were saved by Cl. (ivJ of Art. 19. The reasons given by th.e Deputy Director .:if Education for rejecting the applications of the two petitioners were valid as the District Committee constituted for the purpose had considered all the relevant matters before rejecting their applications and granting pennission to the respective third respondents therein.\n\nThe High Court by its common judgment has taken the view that els. (!) and (2) of r. 3 of the Grant-in-aid Code are invalid as\n\nthey are too vague to afford any standard both as to the need of a G school in the locality and also as to the unhealthy competition with an existing school. The said clauses are equally vague as there is no standard to find out the competency and reliability of the management incharge of the school. There is further no pro vision in these sub-clauses for hearing a party before the autho rities concerned take a decisicin in the matter of grant or refusal H of pemiission to start a school. The High Court is further of t!?e view that by such executive instructions the State is able to prevent the two writ petitioners from carrying on their legitimate\n\nSUPREMB COURT REPORTS [1971] SUPP. s.c.R.\n\nactivities of running schools. The said clauses also do not satisfy the test of being reasonable restrictions in public interest. On tbis reasoning the High Court has held that the two clauses, namely,\n\n(!) and (2) of rule 3 are violative of the rights guaranteed to the writ petitioners under Art. 19(1) of t!te_., Constitution. Though it was argued on behalf of the writ petitioners thlit clauses (I) and\n\n(2) of r. 3 of the Code contravene the provisions of Art. 19(l)(c),\n\n(g) and (f), there is i!O clear indication in the judgment of tbe High Court as to which clause of Art. 19(1) is violated. It is the further view of the High Court tha1 as the State has no power to issue instructions as those contained in els. (!) and (2) of r. 3, Articic c58 will not save tbose provisions notwithstanding the facl iat there was a Prociamation of Emergency during the rele VJnt period.\n\nThough no attack based on Art. 14 was made in either of the writ petitions, it is seen that during the course of arguments. this article was relied on and it was contended that the said two clauses of r. 3 are arbitrary as they enable the State to dncriminate between one institution and another.\n\nThe High Court in considering this contention has held that in the matter of distribt:tion of grant, the State must comply with the fundamental requirements of constitutional law embodied in Art. 14.\n\nAccording to the High Court the effect of els. (1) and (2) of r. 3 is that apart from the fact that th'! sue& schools are not eligible foc receivi<1g the grants, the students studying in such schools c'' not appear for examinations held by the Secondary School Boards as the latter will not reco~; nise such institutions. As the 'tw!ents of such schools cannot take their university education, c:.;. (!) and (2) of r. 3, according to the High Court, offend Art. 14 and hence they are invalid. After holding that els. (!) and (2) of r. 3 of the Code are violative of Arts. 14 and 19, the High Court struck down those provisions and directed the educational authorities to grant permission to the tw~· writ petitioners to start schools as desired by them.\n\nThe learned Attorney-General,. appearing on behalf of the State in Civil Appeals Nos. 160 and 161of1968 raised.the following contentions: (I) The High Court has committed a ve\"y serious mistake in invoking Art. 19 in view of the mandatory provisions of Art. 358 of the Constitution, Cl) even assuming that Art. 19 can be invoked, the provisions contained in els. (1) and (2) of r.3 are reosonable restrictions in the interest of general public and as such those clauses are valid; (3) t'lie view of the High. Court that the said clauses offend Art. 14 is erroneous; (4) that the clauses struck down by the High Court are mere executive instructions given by the State for the guidance of the educational authorities when considering the applications received for permission to open schools in particular areas. Such executive instructions cannot be struck down on the ground tbat they are vague.\n\nAlternatively.\n\nMAHARASHTRA v. L()K SHIKSHAN SANSATHA (Vaidia/ingam, J.)\n\nunder this head it was contended that the two clauses are not vague in any respect; and (5) the High Court has committed a serious mistake in striking down the orders of the educational authorities without considering the reasons given by such authorities for rejecting the applications of the two writ petitioners.\n\nDr. Barlingay, learned counsel for the contesting respondnts has supported the view taken by the High Court for striking down els. (I) and (2) of r.3 of the Code. The counsel relied on the reasons given by the High Court for striking down the two clauses as violative of Arts. 14 and 19. The counsel further urged that though the two clauses of r.3 in question may on the face of it appear to be innocuous, nevertheless the application of those principles by the educational authorities may lead to possible discrimination between the institutions concerned. According to him no standards have been laid down to assess the need of a school in a particular area. Further, there is no criteria laid down to enable the educational authorities to decide the circumstances under which the starting of a new school may rsult in an unhealthy competition with an existing school. The pbsition is the same also in regard to judging the competency and reliability of a particular management who proposes to start a school. The more serious ground of levelled against these clauses (I) and (2) of r . .3 by Dr. Barlingay was that there was no right give~ to an applicant for being heard before his application is rejected by the educational authorities.\n\nBefore we deal with the above contentions advanced before us on behalf of both sides, it is necessary to state that the High Court in the judgment under attack has made certain observatio-, s regarding what according to it should be the policy adopteJ by the educational authorities in the matter of permitting the starting of a new school or of an additional school in a particular locality or area. It is enough to state that the High Court has thoroughly misunderstood the nature of the jurisdiction that was exercised by it when dealing with the claims of the two writ petitioners that their applications had been wrongly rejected by the educational authorities. So long as there is no violation of any fund3mental rights and if the principles of natural justice are not offended, it was not for the High Court to lay down the policy that should be adopted by the educational authorities in tl:e matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an rall assessment and summary of the requirements of residents of a particular locality and other. categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the courts to interfere with the policy . eading up to such assessment.\n\nSUPREME COURT R:BPORTS\n\n(1971] SUPP. S.C.R.\n\nIt should also be made clear that as accepted by the State in its counter-affidavit filed before the High Court the provisions of the Code are executive instructions and are in the nature of administrative instructions without any constitutional force.\n\nIt is on this basis that we have to consider the correctness of the decision of the High Court when it struck down els. (!) and (2) of r. 3 of the Code.\n\nIt is necessary to advert to the drcumstances under which the Code came to be framed as also to certain instructions given by the State to the educational author:ities when considering the applications for the grant of permission to open schools.\n\nThe Grant-in-aid system appears to have been first introduced in 1859 and its main object was to promote voluntary effort and reliance on local resources in the field of education apart from such contributions as may be available from the funds of the State. After the States re-organisation took place, in order to bring about uniformity in the matter, the State of Bombay appointed in 1958 an Integration Committee for Secondary Education to examine the different Education Codes and administrative practices in. force at the secondary stage in the various regions which were added to the State of Bombay under the states organisation and to make proposals for a unified system of Secondary Education as well as the assistance to be given to non-government\n\nSeconda~· Schools. The Committee submitted its report in 1959.\n\nIn December, 1960 the Government of Maharashtra appointed a Committee comprised of officials and non-officfals to suggest a unijied code for consideration of the Government. A revised Draft Code was submitted by the Committee to the Government in or about August, 1961.\n\nThe Secondary Schools Code, with which we are now concerned was framed by the Government as a common code for the recognition of and grant-in-aid to nongovernment secondary schools throughout the State.\n\nThe said Code came into force with effect from the year 1963-64. Chapter II related to recognition and grant-in-aid. Rule 1 dealing with recognition provided that secondary schools may be recognised by the Department provided they conform to the rules contained in the Code. Rule 2 dealt with the matters relating to the applications for starting and recognition of schools.\n\nUnder r. 2.1 an application for permission to start a secondary school has to be made in the form given in appendix 1 (!) of the Code to the authorities referred to therein and such. applications have to reach those authorities by the end of October, in the year preceding the year in which the school is proposed to be started. The said clause further provided that n'o school should be started unless the written previous permission of the D(!partment had been obtained and that the schools started Without such permission shall not\n\n. i (\n\n1fAHARA$HTRA v. L011 SHIKSHAN SANSAmA (Vaidialingam, J.)\n\nordinarily be considered for recognition. Under r. 2.2, the management which is permitted to open a school has to apply for recognition of the schodl in the form given in appendix 1 (2) of the Code within one month of the opening of the school.\n\nRule. 3 which consists of 16 clauses deals with the conditions of recognition. The said rule provides that a school seeking re-' cognition has to satisfy the Department as regards the conditions enumerated in els. 1 to 16 therein. Oauses (I) and (2) of r. 3 which are attacked as invalid are as follows :\n\n\"Rule 3 : Conditions of Recognition:\n\nA school seeking recognition shall satisfy the De partment as regards the following conditions :-\n\n(!) The school is actually needed in the locality and it does not involve any unhealthy competition with any existing Institution of the same category in the neighbourhood ..\n\n(2) The Management is competent and reliable and is in the hands of a properly constituted authority or managing Committee.\n\nWe may at this stage point out that one of the . conditions which has to he satisfied under r. 3 is regarding the financial stability of the proposed school as stated in cl. (3) of r. 3 therein.\n\nThis aspect may have a bearing in considering the correctness of\n\nthe High Court's deeision in Civil Appeal No. 160 of 1968.\n\nRule 86 deals with \"Kinds of Grants\". Rule 86.1 enumerates the various types of grants which a recognised school is eligible to get from the Government.\n\nRule 86.2 provides as follows :\n\n\"Proprietary schools (i.e. schools not registered under either the Societies' Registration Act XXI of\n\n1860 or the Bombay Public Trust Act, 1950 or any other G Act that may be specified by Government and communal schools will not be eligible for any kind of grant from public funds.\"\n\nAt this stage we may mention that the provisions contained in r. 2.1 that an application for starting a Secondary School has to be in the form given in appendix 1(1) of the Code and that the application should reach the educational authorities within the period referred to therein and the further provision under\n\nSUPREME COURT Rl!PORTS [1971] SUPP. s.c.R.\n\nr: 86.2 that the schools which are not registered under the Socieues Registration Act, will not be 1:ligible for grant, will have a considerable bearing when considering Civil Appeal No. 161 of 1968.\n\nOn <; Jctober 6~ 1965 the State of Maharasl1tra issued a press. note, copies of wh>ch were sent to all the educational authorities.\n\nThe Director of Publicity was also directed to give wide publicity to the press note by publishing the same in all the Dailies in the cities and districts.\n\nBy that press note the attention of all the managements intending. to start new Secondary Schools was drawn to the provisions contained in r. 2 of the Code regarding the applications being made in the prescribed form to the concerned office and to the applications being made sufficiently early so as to reach the authorities concerned. at the latest by the end of October, in the year preceding the year in which the school is proposed to he started. It was further stated in the press note 1hat the applications received for starting new schools will be considered by the District Committee comprising of the Chairman of the Education Committee, Zila Parishad, Parishad Education Officer and a member of the Secondary School Certificate Exami nation Board, Poona or Vidarbha Board of Secondary Education, Nagpur and that permission to start new schools will be communicated to the applicants con.cerrn~ by the Deputy Director of Education of the region by the end of February, 1966. The proposed applicants were also informed that appeals to the Govern ment against the orders of the Deputy Director of Education can be filed upto the end of MaTch, 1966. This press note empha sised: (a) that the applications be made in. the prescribed form and (b! that the applications should be received by the educa tional authorities at the latest by the end of October. No doubt some of these aspects are already, contained in r. 2 of the Code.\n\nAnother imprtant point to l:Je taten note of in this. press note is that though. the applications are made to the concerned educa tional authorities, those applications are scrutinised by the District Committees concerned, and who,; e members must be famili\"r with the conditions prevailing in particular localities or areas.\n\nOn the same date the Government sent a communication to the Chairman, Secondary School Certificate Examination Board, Poona and the Chairman Vidarhha Board of Secondary Education, Nagpur on the subject of appointment of District Committees to consider .the applications received for opening new secondary schools.\n\nThe composition of the District Committees was also mentioned therein. The respective Chairmen were requested by the State to move the Board to nominate one member for each of the District Committees in the' areas with which the Board was concerned.\n\nThe Chairman was also requested to communicate the names of such members to the Parishad Education Officer of\n\nJ f\n\nMAHARASHTRA v. LOKSHIKSllAN SAN!IATHA (Vaidialingam, J.)\n\nS!JJ\n\nthe distritt concerned, the Deputy Director of Education of the A region and the Director of Education, Poona under intimation to the Government.\n\nThe State also sent a circular dated October 5, 1965 to the various educational authorities drawing their attention to r. 2 of the Code. They were also informed that the Government bad directed that the applications for opening new secondary schools should be considered by the District Committee comprise\"d of (he various persons mentioned therein. It was further stated that the District Committee should bear in mind when considering the applications, the various matters enumerated as item Nos. 1 to\n\n14. Those various matters to be taken into account relate to the requirement of a school or an additional school in a particular area, its financial stability, the nature and competency of the management and several allied matters. It was obligatory on the District Committee to record its reasons in writing for recommending or not recommending a particular application. In paragraph 4 of the circular it was stated tl; at permission to start a new school may be granted by the Deputy Director. of Education of the concerned region after taking into consideration the recommendations of the District Committee and with the prior approval of the Government. The educational authorities wer.e also directed to dispose of the applications within the period mentioned in the circular.\n\nFrom the relevant provisions of the Code read with the press E\" note and the circular referred to above, it is clear that though the applications are made to the educational authorities, they are not diiposed of by those authorities or their own individua1 discretion. On the other hand, it -is clear that the applkatTun~ are dealt with by the District Committees, whose members are familia:· with the conditions prevailing in particular areas or l:Jcalities F and who also are in the know of things regarding the requirement of a new or an additiOnal school in the particular areas. It is really on the basis of the recommendations made by such Committees that the educational authorities take a decision one way or the other.\n\nAfter having cleared the grounds, as stated above, we will G\" now deal with the contentions of the learned Attorney-General.\n\nThe learned Attorney-General is well-foUJlded in his contention that the High Court wa1 not justified in invoking Art. 19 in the circumstances of this case. We ha\"'.e already given the relevant dates when the applications were filed by the writ , petiti'oners before the educational authorities as well as the •dates when they\n\nH - were rejected. The judgment of the High Court is dated ecember 2. 1966. There is no controversy that the Proclamation of Emergency was issued on October 26, 1962 and it was revoked\n\n892 SUPREME COURT Rl!PORTS\n\n(1971) SUPP. S.C.R•\n\nA only on January IO. 1968 The relevant part of Art. 358 is as\n\n- H\n\nfollows :\n\n\"358. While a Proclamation of Emergency 1s in opera\n\ntion, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take ............ \"\n\nTherefore. it will be seen that during the period when a Proclamation of Emergency is in operation, Art .. 19 will not operate as a bar in respect of any law or any executive action coming within the terms of Art. 358. We will bf: showing in the latter part of the judgment that els. (I) and (2) of r. 3 read with the various instructions issued by the State cannot be considered to be vague or ambiguous as erroneously held by the High Court.\n\nThose instructions, in so far as tl::ey go, are perfectly valid and the State Government was competent to issue those executive instructions for the guidance of the educational authorities dealing with applications for grant of permission to start schools. If so, it follows that the view of the High Court that Art. 358 does not save els.\n\nI I) and (2) of r. 3 is erroneous. l!n this view Art. 19 could not have been invoked by the writ petitioners during the period when the Proclamation of Emergency was admittedly in operation. As Art. 19 is thus out of the picture, the question whether els. (J) and (2) of r. 3 impose reasonable restrictions and are thus saved, does not arise for consideration. We may state that Dr. Barlingay found considerable difficulty in supporting the judgment of the High Court on this aspect in the face of Art. 358 of the Constitution. This disposes of the first and second contentions of the learned Attorney-General.\n\nComing to Art. 14, it is accepted by the High Court that the writ petitioners did not make in their petitions any attack on els. (!) and (2) of r. 3 based upon the said article. It was only d; i; ing the course of argcnnents that Art. 14 appears to have been invoked.\n\nThe High Court struck down the two sub-clauses on the ground that unless a school is started in accordance with the rnle; contained in the Code, they will not be recognised by the\n\n~.econdary School Boards and the students studying in such schools cannot appear for the e); aminations held by the Board and the University.\n\nThe approac:h made by the High Court in our view in this regard is erroneous. The provisions regarding 1rrant of permission and recognit'ion of schools under the Code\n\nre mainly intended for the purpose of receiving grant from the Government. We are not concerned in these proceedings regarding the effect of starting a school without complying with the requirements of the provisions of the Code or in the face of refusal\n\nMAHARASHTRA v. LOK SHIKSHAN SANSATHA (Vaidialingam, J.)\n\nof permission by the educational authorities when such schools so started do not require or receive any grant from the State.\n\nThat problem does not arise for consideration before us. Hence we do not think it necessary to refer to the provisions of the Mab.a rashtra Secondary Education Board Regulation, 1966, the effect of which may be that no student having education in a school for the starting of which no permission has been given or such permission has been refused, may not be able to appear for the examinations held by the Boards concerned. So. far as the distribution of grant to the schools recognised under the Code is concerned, it is not the case of any of the petitioners that such grants are being made arbitrarily or any discrimination is shown in that regard. But Dr. Barlingay pressed before us the circumstances that though els. (I) and (2) of r. 3 may appear to be innocuous, there is a potential danger of discrimination when the said clauses are applied without any guidance by the educational authorities. He also c\\)ntended that there is no right given to the applicant to be heard by the educational authorities before his application is refused. On this ground the counsel urged that els. (!) and (2) of r. 3 violate Art. 14.\n\nWe have already referred to the press note and the circular letter issued by the State Government from which it is clear that the applications are dealt with in the first instance by the District Committees, whose members are familiar with the requirements of 1he particular areas or localities and the conditions prevailing therein regarding the requirements of a school or an additional school. The District Committees have to take into account several material and relevant factors contained not only in the Code but also specifically emphasised in the circular letter of the Government dated October 5, 1965. It is only on the basis of the recommendations made by those Committees, that the educational authorities take a decision regarding the grant or refusal of permission to start a school. The District Committees are-· also bound to record their reasons in writing for recommending or not\n\nrecomml\\ding the application. An appeal lies against the order passed by the Deputy Director of Education to the Government.\n\nIt is not the case of any of the writ petitioners that the District Committees have acted arbitrarily. Nor is it their case that the Deputy Director of Education of the region has not based his decision on the recommendations of the District Committees.\n\nWe are not satisfied that there is any violation of Art. 14.\n\nFrom the mere fact that there is no right provided for the applicant being heard before his application is rejected, it cannot be held that there ls a violation of the principles of natural justice. Oq the other hand, it is seen that the District Committees have considered the claims of the writ petitioners as well as of the respective third respondents therein and recommended to the\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\neducational authorities that the claims of the latter are to be accepted. The reasons for rejection of the applications have also been given in the orders passed by the educational authorities.\n\nWhen all the relevant circumstances have been taken into acco'.lnt by the District Committee and the educational authorities, there is no violation of any principle of natural fustice merely for the reason that the applicants were not given a hearing by the educational authorities before their appli•:ations were rejected. Ti1e particulars which have to be mentioned in the prescriber! application form are very daborate and complete. The provisions in the Code read along with the instructions given by the State in the circular letter dated Otober 5, 1965 refer to various relevant and material factors that had to be taken into account for the purpose of deciding whether the application is to be granted or not. As we have already pointed out, it is not the case of any of the writ petitioner 1[hat these relevant factors hve not been considered by the District Committees. Nor is it their case that the reasons given for n:jection of the opplicatioils are not covered by the provisions contained in the Code. Ciauses (\\) an.! (2) of r. 3 are not to be read in isolation as has been done by the Higl1 Court. On the other hand they must be read along with the other various clauses containcc!i in the same rule as well as the deta:led instructions given by the Government in the circular letter dated October 5, 1965. It follows that the reasoning of the High Court th::t these two subclauses violate Art. 14 cannot be accepted. ·\n\nComing to the fourth con le :ition of the learned Attorney- General, it is evident from the judgment of the High Court that els. (\\) and (2) of r. 3 have beC'l struck down for they are vague and do not z, ffo; d any standard or criteria for judging whether a school or an additional school is needed in an area or locality and whether the management is competent and reliable. We have already pointed out that 'the definite stand taken by the State in its counteraffidavit filed before the High Court was that the pnvisions of the Code are executive instr:.ictions and are in the natme of administrative instructions without any statutory force.\n\nWhen it is admitted that the provisions contained in the Code, which include els. (I) and (2) of r. 3 are executive instructions, two questions arise, namelv (!) whether the High Court was justified in\n\nstrikin~ down such executive instructions even assuming that those fustructions were vague and (2) whether the said clauses are vague.\n\nThe learned AttorneyGeneral invited our attention to the two decisions of this Court reported in State of Assam and Another v. Ajit Kumar Sharma and others(') and Municipal Committee, Amritsar and anotht\" v. State of Punjab and Ors. (')\n\n(1) [196SJ 1 s.c.R. 390.\n\n(2) [196913 s. c. R. 447.\n\nMAHARASHTRA v. LOK Sl!IKSHAN SANSATHA ( Vaidialingam, J.) 8 9 5\n\nIn the first decision this Court has laid down that where conditions for receiving grant-in-aid are laid down by mere executive instructions, it is open to a private institution to accept those instructions or not to accept them. That is a matter entirely between the Government and the private institution concerned. In the second decision it was laid down that \"the rule that an Act of a competent legislature may be \"struck down\" by the Courts on the ground of vagueness is alien to our Constitutional system ..... .\n\nA law may be declared invalid by the superior Courts in India if the Legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any constitutional provision, but not on the ground that It is vague ...... \" Based upon these two decisions, the learned Attorney-General urged that even on the basis that the two sub-clauses in question are vague, they could not have been struck down on that ground. Alternatively, his further contention is that those clauses are not vague. We do not think it necessary to go into the question whether the courts have got powers to strike down even executive. instructions on the ground of their being vague when such executive instructions are admittedly issued by the authorities concerned for the guidance ; md for being acted upon. We express no opinion on that point in these proceedings.\n\nWe are of the view that the two clauses in question are not vague or ambiguous in any respect. The fallacy committed by the High Court conists in considering els. ()) and (2) of r. 3 in isolation. We have already pointed out that r. 3 of the Code consists of as many as 16 clauses, which are conditions to be fulfilled for recognition being accorded.\n\nWe have also referred to the circular letter dated October 5, 1965 issued by the State Government enumerating the various matters to be taken . into account by the District Committees when considering applications for grant of permission to start a school or for having an additional school in the area or the locality. Rule 3 will have to be read along with those instructions as well as the various particulars which have to be filled up in the prescribed form. If els.\n\n()) and (2) of r. 3 are. interpreted having due regard to the various other matters, , referred to above, the District Committee has got ample guidance to decide the need of a particular locality to have a school or an additional school-as also the further question regarding the competency and reliability of the mana&ement.\n\nThere will be sufficient material before the District Committee ro consider whether the starting of a school or an additional school in a particular area or locality will im,'olve ay unhealth~ competition. In view of the clear and detailed guidance furnished not only by r. 3 but also by the instructions contained. in the cuar letter dated October 5, 1965, it is clear that there 1s no amb1gu1ty in either els. (I) or (2) of r. 3. In considering the question of vagueness _the High Court has not adverted fo the various matters\n\nSUPRBM!l COURT REPORTS (1971] SUPP. s.c.R.\n\nreferr~ .to by us earlier. Therefore,. we are of the opinion that\n\nth~ strikmg down of els. (I) and (2) of r. 3 by the High Court as bemg vague, 1s erroneous.\n\nThe last contention of the learned Attorney.General which is on merits is that without considering the reasons given by the Deputy Director of Education for rejecting the two applications of the two writ petitioners, the High Court has issued a mandamus to the State to grant permission to those two applicants. In our opinion, this contention is also well-founded. The application of the petitioner in Special Civil Application No. 420 of 1966 which is the subject matter of Civil Appeal No. 160 of 1968 was rejected by the Deputy Director of Education on the ground that\n\nthe need of the place has been fulfilled by permitting another society to open the school at the ptace. The appeal filed to the State Government was unsuccessful. In the counter-affidavit filed by the State in the writ petition they had categorically referred to the recommendations of the Distrii; t Committee on the applications filed by the said writ petitione:r as also the third respondent therein. Reg_arding the writ petitioner tl!e report of the District Committee was that it had no funds and that it was recommending another society with good financial position and experience.\n\nIn this view the District Committee: stated that it was not recommending the writ petitioner for the grant of permission. On the other hand, the District Committee recommended the application of Ashok Education Society, Ashoknagar (third respondent) on the ground that it was financially sound and it was a very good and experienced society and that it was also a popular society.\n\nFor these reasons the application of this society was recommended to be granted by the District Committee. It was on the basis of this recommendation of the District Committee that the Deputy Director of Education rejected thf: application of the writ petitioner and granted permission to the third respondent therein.\n\nThe applications of both the writ petitioner and the third respondent were before the District Committee.\n\nThe High Court has not found fault with these recommendations. On the other hand it has held that it is open to the authorities to refuse permission if the school is not in a financially sound position. The writ petitioner also was not able to satisfy us that the conclusions arrived at by the District Committee, which were accepted by the Deputy Director of Education were not based upon particulars furnished in the application.\n\nComing to the application fil1ed by the writ petitioner Special Civil Application No. 421 of 19615 which is the subject matter of Civil Appeal No. 161 of 1968, we have already referred t? the fact that the said society merely made a request for opemng a school by means of a letter dated. October 2~. 1965. Admittedly the applicant did not comply with the requtrement of r. 2.1 of\n\nMAHARASHTRA I', LOK SHIKSHAN SA2'SA'll-!.A (Vaid:°a/i,, gap1, J.)\n\n, the Code that the application should be in the prescribed form.\n\nNo doubt, later on, on November 3, 1965 the said society sent a fresh application in the prescribed form, but this was not within the period mentioned in r. 2.1 of the Code. So the said writ petitioner did not comply with r. 2.1 read along with the press note and the circular letter, referred to above.\n\nThat clearly shows that the application filed by the writ petitioner was not in the first instance in the prescribed form and that when it was sent in the prescribed form it was beyond time. Further, we have also referred to r. 86.2 which specifically says that the schools which are not registered under the Societies Registration Act, will not be eligible for any kind of grant from the public funds. Even in the application filed by the writ petitioner in the prescribed form on November 3, 1965, it was stated under head No. 4 that the management was not registered and that it intends to get it self registered within a month. So apart from two infirmities. pointed out. abo, ve. there was this additional infirmity of nonregistration. Even on the date when the appeal was filed to the State Government on April 26. 1966, the society was not registered. As admitted by the said society in its writ petition, it was registered under the Societic' Registration Act, 1860, only on April 27; 1966. The order dated April II, 1966 of the Deputy Director of Education rejecting the application was based on two grounds: (a) that the application was sent after the prescribed date and (bl that the society was not registered. That these two reasons are valid is clear from the facts mentioned above. The appeal taken to the State Government was unsuccessful.\n\nFrom . the above circumstances it is clear that the rejection of the application was on valid grounds.\n\nThe High Court, so far as we could see, has not found that these reasons are not based on the materials on record.\n\nNo such contention has also been taken before us by the said writ petitioner. If so, it follows that the\n\nordr of the High. Court directing the State Government to issue permission to the two writ petitioners ignoring the ahove circumstarlces is clearly erroneous.\n\nFrom what is stated above, the judgment of the High Court allowing Special Civil Application Nos. 420 and 421 of 1966 cannot be sustained.\n\nComing to appeal No. 878 of 1968, the facts lie within a very narrow compass. For the year 1965-66. the third respondent in Special Civil Application No. 694 of 1965. out of which the app7al arises, had made an application o!1 October 29. 1964 for startm, g a new school at Sakharkherda dunng the year ~9~5-66. The v.:nt\n\npetitioner filed objections to the grant of perm1ss1on to the thtrd respondent. On the recommendation of the District Committee. the third respondent was allowed to open standards VIII and IX\n\n57-1 s. a. lndia/71\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nwith one division only during the y1:ar 1965-66.\n\nThe writ petitioner was filed to quash the permiss:ion granted to the third respondent. The State Government in its counter-affidavit has very elaborately referred to the various matters mer:tioned by the third respondent in his application and al.so to the recommendation made by the District Committee.\n\nThe District Committee had recommended permission being granted to the third respondent on the ground. that the management had very good experience in running schools and that it was also financially sound. It was also stated that at the place in question even when the writ petitioner was conducting a school with standards V to X, there was another school run by the Zila Parisbad with standards V to VU.\n\nIt was pointed out by the State that the population in the area demanded additional school with standard VIII onwards and it was an absolute necessity. They hadi also given details regardmg the long experience that the third respondent had in running schools in several places as also the: soundness of its financial position.\n\nBefore the High Court the attack made by the writ petitioner was slightly different from that of the other two writ petitioners in Special Civil Applications Nos. 420 and 421 of 1966.\n\nThe _attack on the grant of permission t~ the tb.ird respondent was\n\nmade by this writ petitioner really based on els. (!) and (2) of r. 3. According to the writ petitioneir the locality was not in need of any additional school as it will involve' unhealthy competition.\n\nThe High Court rejected the writ petition on the ground that the petitioner therein cannot make any grievance of the grant made to the thJrd respondent to start a school after a proper consideration of the merits of the claim of the latter.\n\nDr. Barlingay, learned counsel for the writ petitioner, who is appellant. in this appeal, found considerable difficulty to satisfy us that any legal rights of the appe!tmt herein had been infringed by grant of permission to the third respondent. We have already referred to the fact that the State has pointed out that even when the writ petitioner was running a school with classes V. to X, the Zila Parishad was running another school in the same area with classes V to VII. The State had also pointed out that the population of the area demanded an additional school.\n\nFrom the mere fact that by the opening of another school, some of the students of the appellant school may seek admission in the new school, it cannot be stated that any of the appellant's legal rights have been infringed. Dr. Barlingay has not been able to satisfy us that in granting permission to the third respondent any extra neous or irrelevant matters have been taken into account by the District Committee or the educational authorities. Nor was he able to satisfy us that the reasons given by the District Committee for the grant of permission to the third respondent on the ground\n\nMAHARASHTRA v. LOK SHIKSHAN SANSATHA (Vaidialingam, J.)\n\nthat it had a long experience in running schools and that its finan cial position is also good, are erroneous. If so, it follows that there is no merit in this appeal.\n\nIn the result the judgment and order of the High Court allowing Special Civil Applications Nos. 420 and 421 of 1966 are set aside and Civil Appeals Nos. 160 and 161 of 1968 are allowed.\n\nThe writ petitioners in Special Civil Applications Nos. 420 and 421 of 1966 will pay the costs of the appellants in both the appeals.\n\nThere will be only on~ hearing fee to be paid by the two writ petitioners in equal proportion.\n\nThe judgment and order of the High Court dismissing Special Civil Application No. 694 of 1965 are confirmed and Civil Appeal No. 878 of 1968 will stand dismissed.\n\nThe appellants will pay the costs of the first respondent therein.\n\nV.P.S.", "total_entities": 53, "entities": [{"text": "STATE OF MAHAKASHTRA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHAKASHTRA & ANR", "offset_not_found": false}}, {"text": "LOK SHIKSHAN SANSATHA & ORS", "label": "RESPONDENT", "start_char": 29, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "LOK SHIKSHAN SANSATHA & ORS", "offset_not_found": false}}, {"text": "G. 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"source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 24459, "end_char": 24466, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 14 and 19", "label": "PROVISION", "start_char": 24568, "end_char": 24583, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 24963, "end_char": 24970, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 358", "label": "PROVISION", "start_char": 25010, "end_char": 25018, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 25063, 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33310, "source": "regex", "metadata": {}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 33879, "end_char": 33895, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 39216, "end_char": 39223, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 358", "label": "PROVISION", "start_char": 39713, "end_char": 39721, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 19", "label": "PROVISION", "start_char": 39815, "end_char": 39825, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 358", "label": "PROVISION", "start_char": 40260, "end_char": 40268, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": 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"statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 41679, "end_char": 41686, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Secondary Education Board Regulation, 1966", "label": "STATUTE", "start_char": 42790, "end_char": 42832, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 43769, "end_char": 43776, "source": "regex", "metadata": {"linked_statute_text": "Secondary Education Board Regulation, 1966", "statute": "Secondary Education Board Regulation, 1966"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 45112, "end_char": 45119, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 47153, "end_char": 47160, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Societies Registration Act", "label": "STATUTE", "start_char": 55399, "end_char": 55425, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Registration Act, 1860", "label": "STATUTE", "start_char": 56041, "end_char": 56063, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]} {"document_id": "1971_1_900_934_EN", "year": 1971, "text": "GUMAN SINGH\n\nSTATE OF RAJASl'HAN & ORS.\n\n11'/y 26, 1'171\n\n[S, M. S!KRI, C. J., G. K. MIT'rER, C. A. VAIDIALINGAM, P. JAGAN\n\nMOHAN REDDY AND I. D. DUA, JJ.J\n\n/laja>thu11 Adtn/11/stratl\\'t' Sr•,.vi<',• Ru!ds, 1954, rr. 288(2) a11d 32- Va/idity of-Wli•thtr violativr of Arts. 14 & 16 of Constitution b.ca11,. of abHnce of 1uidtlln•s In the matter of ,,, Im/on of <'and/dates by mtrlt- Circ11lnr dated August 27, 1966 ll'lirt/ir1 Invalid on th• ground 1/1at the nuirkln11 .vy.ft111 laid down i11 /1 went ag1.1int the Rules 111 regard to seltc• tion by mcrit-Dcpartm•11ta/ Promorlon Committee taking advtr11 remarks in confidtntial report into actount wlthnur tht.fe havfn1f hc•e1t rtJmmurricat- ''\" ro the officrr co11cerned-Et1ect.\n\nThe appellant G was a member of I.he Rajasthan Administrative Service.\n\nAggrieved by the order allotting seniority to him under the Raja,. than Administrative Service H..ules, 1954, he filed a writ petition under Art. 226 in the High Court. A single Judge of the court allowed the petition.\n\nHowever in appeal by the State the Division Bench decided a11ainst the appellant who by special leave appealed to this Court. Two other mem bers of the Rajasthan Administrative Senice, similarly ag11rieved filed writ petitions under Art. 32 before this Court. The common questioilS that fell for consideration in the appeal and writ petitions were; (i) whether rr. 28B(2) and 32 of the Raja.than Administrative Service Rules w.re violative of Arts. 14 and 16 of the Constitution because they did not contain any 11uidelines in the matter of deteriminina the merit of candidates; (ii) whether the circular dated Au11ust 27, 1966 issued by the State Government laying down a sysiem of marking for the purpose of determining the merit of candidates was invalid because it was contrary to the relevant Rules in this regard. The appellant G also complained that ad verse remarks in his confidential report which had not been communicat .. ed to him had been taken into account against him by the Departmental Promotion Committee.\n\nHELD: (i) Rule 32 in essence adopts what is stated in r. 28B. T''° latter rule provides for two methods of selection one based on merit nnd\n\nthe other based on seniority-cum-merit. In other words, the rule provides that the promotion based on merit in co11tradiction to that based on seniority-cum-merit shall strictly be on the basis of merit. The Selection Committee and the Promotion Committee consist of very responsible and senior officers of the State and being persons of experience they can be trusted to evaluate the merits of a partic:utar officer. No doubt the word 'merit' is not capable of easy definition, but it can be safely said that merit is a sum total of various question!: and attributes of an \"mployee such as his academic qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges bis official duties.\n\nAllied to this may be various other matters or factors such as his punctuality in work, the quality and out-turn of work done by him and the manner of ois dealing with his superiors and subordinate officers and the general public and his rank In the service.\n\nTbe various particulars in the annual confidential reports of an officer is\n\nOUMAN SINGH v.1\\1\\IASTHAN (Vaidiallngam, J.)\n\ncarefully and properly noted, will aiso give a very broad and general indi cation regarding the merit of an officer. Therefore it cannot he stated\n\nthat rr. 288 and 32 are in any manner vasue or do not give any guidelines for assegsing the merit ofan officer. [921B-F]\n\n(ii) (a) The restriction contained in the proviso to sub-r. (2) of r. 288 is quite reasonable. Before an officer in the junior scale can be considered as fit for promotion to the senior scale it ls necessary that be should have worked on a post in the service at least for some period of time. As to what the quantum of that period must be is not for this Court to lay down. Tho Oovernfnent hu fixed this period as six years. It cannot be said that It Is an Improper restriction. [922ABJ\n\n(b) The provisions contained in sub-r. (2) conftnina tho selection to senior-most officers not oxceedina 10 tlmes tho number of total vacancle& is also reasonable. Such a provision will encourage the members of the service to aspire for promotion for making themselves eligible by increasing their efficiencies In the discharge of their duties.\n\n[922BC]\n\n(iii) The object of the impugned circular may be to bring about uniformity in the award of marks. But the directions contained therein do offend the rules. This is not a case of the Government filling up the gaps or of aiving executive instructions not provided for by or not inconsistent with the rules. No discretion is given to the selection or promotion com inittee to adopt any method other than that indicated in the circular. Aocording to the principle laid down by this Court in Sant Ram Sharma'& cue, If the circular dated August 27, 1966 or any part of it gives instructions contrary to or opposed to any of the rules, tho circular or tho!\n\npart of tho circular to that extent would be invalid. By this test the circular in question was Invalid and must be struck down. [928F-929F]\n\nSa11t Ram Sharma v. State of Rajasrhmi & A.nr., (1968] l S.C.R. 111, nrplied.\n\n(iv) Appellant 0 bd inade a specific grievance in his writ petition before the High Court about the uncommunicated adverse remarks having been taken 'into account bi' the Departmental Promotion Committee.\n\nTho Division Bench of the High Court was wrong in holding that since the Committee had not been made a party to the proceedings this question could not be gone into. The Government which was the appointing authority was a party before the High Court. It was the duty of the State Government to place before the High Court all the materials available before it to enable the Court to consider whether the grievanct of the appellant was justified or not. The appellant's case must therefore be re:I considered in the light of the Rules.\n\n[932C-H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1815 of 1970.\n\nAppeal by special leave from the judgment and order dated January 20, 1970 of the Rajasthan High Court in D. B. Special Appeals Nos. SS and S7 of 1968 and Writ Petitions Nos. 76 and\n\n139 of 1970.\n\nPetitions under Art. 32 of the Constitution of India for en\n\nforcment of fundamental rights.\n\n9 ( 1\n\n902 ~UPRBM'B COURT REiPORTS [1971) SUPP. s.c.R.\n\nA R. K. Garg, S. C. Agarwa/a, D. P. Singh and R. K. Jain, for\n\nthe appellant (in C. A. No. 1815/1970) and the petitioners On both the petitions.).\n\nJagadish Swarup, Solicitor-General and K. Ba/dev, Mehta, for respondent No. 1 (in C. A. No. 1815 of 1970).\n\nS. M. Jain, for respondent No. 3 (in C. A. No. 1815 of 1970).\n\nB. Sen and K. Baldev Mehta, for respondent No. 1 (in W. P.\n\nNo. 76 of 1970).\n\nK. Baldev Mehta, for respondent Nos. I, 32 and 33 (in W. P.\n\nNo. 139 /1970.).\n\nThe Judgment of the Court was delivered by\n\nVaidialingam, J.-In both the writ petitions under Art. 32 and the civil appea•I, by special leave, common questions that arise for consideration relate to the validity of rr. 28B and 32 of the Rajasthan Administrative Service Rules, 1954 (hereinafter to be referred as the Rules) and the Circular No. F. 1. (6) Apptts.\n\nD/50 dated August 27, 1966 issued by the Chief Secretary to the Government of Rajasthan as well as the Order of the Government of Rajasthan No. F. 2(24) Apptts. (A-IV)/ 66 dated January 4, ·\n\n1967. In the two writ petitions the Order No. F. 2(24) Apptts. (A-IVl /66 dated January 22, 1970 and in Writ Petition No. 139 of 1970 ai further Order of the State Government No. F. 27(24)A (A-4) /66 dated February 21, 1970 are also challenged. The nature of the various Orders as well as the Rules and the Circular that are challenged will be referred to later !lit the appropriate stage.\n\nCivil Appeal No. 1815 of 1970 arises out of the Division Bench Judgment of the Rajasthan H'igh Court dated January 20.\n\n1970 in D. B. Special Appeal No. 57 of 1968. The facts leading up to the Civil Appeal may be stated : The appellant is an Arts Graduate having taken his degree in 1947.\n\nHe took his Law Degree in the year 1961 hiwing been placed in the First Division.\n\nHe joined the service of the former Jaipur State as Inspector, Customs and Excise, in 1948. On the formation of the United State of Rajasthan, he was appointed in the service of the State C1f Rajt!sthan as Inspector, Customs and Excise. In\n\n1950 the Rajasthan Administrative Service was constituted for the State of Rajasthan and the Rules governing the 'conditions of service of the members therein were framed in f954 by the Rajpramukh under the proviso to Art. 309 of the Constitution.\n\nUnder the Rules the Adminisrative Service Cadre has three cadres of pay, namely.\n\nOrdina, ry Time Scale, Senior Scale and Selection Grade.\n\nThe iippointment to the service cadre was by direct recruitment as well\n\nGuMAN SINGH?. RAJASTHAN (Vaidialingam, J.)\n\nas by promotion from other subordinate services in the State of Rajasthan. The appointment to the Senior Scale and Selection Grade was by promotion from amongst the members of the service.\n\nAccording to the appellant rr. 27 and 32 of the Rules, as they stood originally provided for promotion to be made only on the basis of seniority-cum-merit and that sub-rule(2) of r. 27 laid down various criteria to be taken into account in the matter of selection of candidates for promotion. It was his further case that r. 28, as it originally stood, laid down the procedure for recruitment by promotion to the service on the basis of seniority-cum-merit. The appellamt was appointed in the year 1957 as member of the Rajasthan Administrative Service as a result of the open competitive examination held by the State Public Service Commission under the provisions of the Rajasthan Administrative Service (Emergency) Rules, 1956. The appellant claimed tha.t his seniority was higher than that of respondents 2 to 5 as is evident from the seniority list published on July I, 1964. At this stage it may be mentioned that though under the Order dated January 4, 1967 of the State Government fifteen officers in the junior scale were promoted and a.ppointed on an officiating basis to the senior scale of the service, the appellant has made only four of them respondents 2 to\n\nS as parties in these procedings on the ground that though they were juniors to him, promotion has been given to them superseding his claims. The other officers so promoted, even a.ccording to the appellant were senior to him in service.\n\nWe may also mention that respon dent No. 5 is since dead, but for convenience he will be referred to by the rank occupied by him as respondent.\n\nIn 1965 the State decided to introduce the system of making promotions to the service on the basis of merit alone in addition to the existing system of making promotions on the basis of seniority-cum-merit.\n\nWith this end in view there were various amendments made to the Rules by which certain additions were made and certain other provisions deleted.\n\nOn December 14, I 965, r. 28B was incorporated providing for appointment by promotion to posts in the service on the basis of merit a.nd on the basis of seniority-cum-merit in the proportion of 50:50 and the number of eligible candidates to be considered for promotion is to be 10 times the total number of vacancies to be filled up on the basis of merit as well as seniority-cum-merit. On the same date when r. 28B was incorporated sub-rule (2) of r. 27 was deleted.\n\nOn January 7, 1966 sub-rules(2) to (6) of r. 28 were also deleted.\n\nOn December 14, 1965 a Circular was issued by the Chief Secretary to the Government of Rajasthan. According to the appellant the said Circular was a secret one issued without any authority directing the Selection and Promotion Committees and the Appointing authorities to follow the instructions given\n\nSUPRE!dB COURT RllPORTS [1971] SUPP. s.c.R.\n\ntherein when ma.king selection, promotion or appointment in \\the service.\n\nThe said ircular p1rescribed \"merit formula for making selection of persons to be appointed on the basis of merit clone and the seniority-cum-merit formula for making selection of persons to be appointed on the basis of seniority-cum-merit.\" The basis for both the types of promotions was the marking system indicated in the circular. We do not think it necessary to go more elaborately into the details of this circular or the authority under which it was issued because it is seen tha.t this circular was superseded by the circular dated August 27, 1966. which ls under severe attack in all these proceedings. The contents of the latter Orcular as well as the authority under which it is purpora.ted to have been issued will be dealt with by us in due course in the latter part of the judgment. On August 26,\n\n1966 r. 28B was further amended by providing that the proportion of promotion to be made by sdection on the basis of merit and seniority-cum-merit is to be 1:2 instead of 50:50. On the same day a proviso was also added to sub-rule (2) of r. 28B providing tha.t only officers who have been in service for not less than six years in the lower grade of the cadre will be eligible for being considered for the first promotion in the cadre. On August 27, 1966 the impugned circular was issued by the Chief Secretary to the State Government. It is the case of the appellant that this circular was issued without any 111uth1irity and it was again a secret circular giving directions in the matter of selection, promotion and appointment to the service to the Committees or the Authorities incharge of the same. The circular again dealt with the merit formula and the seniority-cum-merit formul111 on the basis of marking system indicated therln. 011 September 8, 1966 the State decided to extend the principles of rnaking selections on the basis of merit alone to appointments to senior posts also. For this purpose the original r. 32 was substituted by a new rule providing for appointments to senior scale 111nCI selection grade posts on the basis of merit and seniority-cum-merit in the ratio of I : 2 on the recommendation of the Committee: constituted under the said rule.\n\nIt is the case of the appellant that prior to the notification dated September 8, 1966 though many posts in the senior scale of service had fallen vacant even d'uring the years 1963-64 and 1964-65, those post were not filled up by making promotion on the basis of the principle of seniority-cum-merit which was in force at the relevant time. By the Order dated January, 1966, the State Government created 26 new posts in the Senior Scale of Service and 14 posts in the Selectio:~ Grade with effect from the date of the order. As a result of this creation of new posts, about 44 vacancies became available for being filled up by promotion to the Senior Scale of Service in 1965-66.\n\nNevertheless the vacancies\n\nGUMAN SINGH' RAJASTilAN (Valdfa/i11gam. J.) 90 5\n\nwere not filled up by the State. After the new r. 32 was incorporated on September 8. 1966 the Government took steps to fill up the 44 vacnmcies in the Senior Scale of Service and for this purpose a Departmental Promotion Committee was constituted and the Committee met in the end of September, 1966 for considering the claims of the officers for purnoses of promotion.\n\nOn the basis of the recommendations made by the said Committee, the Government by the Order dated December 7, 1966 promoted 29 officers to the Senior Scale on the basis of seniority-cum-merit.\n\nAgain by the order dated January 4. 1967, which Is another order under attack in these proceedings, IS officers Including the respont'ents Nos. 2 to S were promoted to the Senior Scale of Service on the basis of merit alone.\n\nAccording to the appellant by the Orders dated December 7, 1965 and January 4, 1967 promolions had been made quite contrn.ry to rr. 28B and 32 of the Rules.\n\nIt is the grievance of the appellant that under the Order dated January 4, 1967 a\n\nlare number of officers who had qualified for promotion on the bn.sis of merit under the merit formula were superseded by the officers junior to tm. Though Rules 28B and 32 provided for selection on the basis of merit gave no indication or guidance us to what are the factors to be taken into account in assessing the merit of an officer. The promotions had also been maf the Committees functioning under the statutory rules. According to the learned Judge, even on merits, cannot be considered to be reasonable. In this view the circular was held to be bad as !being repugna.nt to the rules.\n\nRegarding the promotions made under order dated January 4, D 1967, the learned Judge held that the directions contained in the Circular must have been taken into account by the Selection Committee and hence the promotions were not valid.\n\nOn this ' reasoning, the learned Judge, by his judgment and order dated November 7, 1968 held that sub-rule (I) of r. 28B and r. 32 were valid and that sub-rule (2:) of r. 28B was violative .\n\nE of Art. 16 and hence that sub-rule vvas bad. The circulair dated August 27. 1966 was struck down and the promotions of respon dents made under the order dated January 4, 1967 were also struck down.\n\nAggrieved by the judgment and order of the learned Single Judge, the first respondent, the State, filed D. B. Speciaol Appeal No. 57 of 1968 and the respondenti Nos. 2 and 3 filed D. B.\n\nSpecial Appeal No. 55 of 1968. The: appellant herein filed crossobjections, in the appeal filed by the: State challenging the decision of the learned Single Judge upholding the validity of sub-rule (!) or r. 28B and r. 32.\n\nThe Division Bench by its order and judgment dated January 20, 1970 allowed the two appeals Nos. 55 and 57 of 1968 and dismissed the cross-objections filed by the appellant. The Division Bench held tha.t the view of learned Single Judge that r. 28B(2) was bad was erreneous. On the other hand, the Division Bench held that restricting the eligibility of officers who have put in at least six years of service was quite reasonable and the further provision in r. 28B(2) regarding the field of selection being confined to senior most officers in the Junior Scale not exceeding 10 times the total number of vacancies was also\n\nGUMAN SINGH v. RAJASTHAN (Vaidialingam.J.) 909\n\nreasonable. Differing from the learned Single Judge, the Division Bench held that no part of r. 28B(2) was invalid. The Division Bench agreed with the views of the learned Single Judge regarding the validity of sub-rule (!) of r. 28B and r. 32. Regarding the Circular dated August 27, 1966, the learned Judges held that the marking system indicated therein was rea.Jly based upon the previous Circular dated August 31, 1960 under which merit was to be evaluated h'y allotting marks on the previous record of an officer. The said Circular of 1960 had been in operation in respect of the said services except the Rajasthain Judicial Service or the Rajasthan Higher Judicial Service, which were under the control of the High Court. It is the view of the Division Bench that the Circular of 1966 was very elastic and gave wide discretion to the Committees to assess the merit of an officer.\n\nThe Circular has done nothing except to lay' down broad guidelines for the excercise of discretion by the Promotion Committee. The system of marking indicated in the Circular was quite good as it brought about uniformity in the procedure for assessment of merit.\n\nOn this reasoning the learned Judges held that the Circula.r of 1966 was valid and it was in no way repugnant to the rules.\n\nRega.rding the authority for the Circular, the learned Judges noted that there has been some confusion in the stand taken by the State from time to time even when they made a.pplications for amending their counter-affidavit for making it clear that the Circular h~ been issued not by the Chief Secretary in his individual capacity but by the State Government. Ultimately, the Division Bench held that they had examined the cabinet file produced before them along with the note sheets and that the Court was satisfied that the Circular of 1966, has been issued with the approval of the State Government.\n\nThe learned Judges rejected the plea of ma/a fides raised by the appellant herein. Regarding the allegation made by the appellant that the adverse remarks which had not been communicated to him had been taken into account by the Promotion Committee in September, 1966, the learned Judges held that as the Departmental Promotion Committee had not been imp leaded as a party, .the question whether the adverse remarks made against the appellant had been taken into account by the said Committee cannot be gone into in these proceedings.\n\nRegarding the promotions maide under the Order dated January 14, 1967, the Division Bench upheld the same as it had already held that rules 28B and 32 as well as the Circular of 1966 were all valid. Civil Appeal No. 1815 of 1970 is against the decision of the Division Bench, reiterating the objections regarding the validity of the rules, the Circular, as well as the promotions made.\n\nWrit Petition No. 76 of 1970 is filed by Motilal Kakkar, Apart from challenging rr. 28B and 32 and the Circular of 1966\n\n~11 u\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nA and the promotions made under the' order dated January 4, 1967, the writ petitioner challenges also the order dated January 22,\n\n19 70 cc, ntirming the promotions of respondents 2 to 16 in the Senior Scale.\n\nThe facts leading up to the writ petition are a.s follows :\n\nThe petitioner after obtaining his M. A. Degree in History and the Law Degree from the Luknow University joined service in the erstwhile State of Jodhpur on August 1, 1943 as a Special Officer (Settlement).\n\nHe entered the Jodhpur State Civil Service on March 13, 1946 as a result of the competitive examination held by the Public Service Commission of that State.\n\nAt the time of the formation of the Rajasthan Union, the petitioner was working as Assistant Director, Civil Supplies, Jodhpur.\n\nUltir mately the petitioner was appointed to the Raja.sthan Adminis trative Service with effect from January 6, 1950. He bas been serving in various capacities and he was also sent for higher training to the United St3tes of America by the Government of India during the period March 23, 1958 to September 27, 1958.\n\nThe petitioner thereafter was sent on deputation to the Municipal Corporation of Delhi as an Assistant Commissioner during the period June 17, 1963 to April 21, 1964.\n\nLater on he was on depumtion as Principal, Tribal Orientation and Study Centre during the period May 22, 1964 to March 31, 1967. He became the District Manager of Food Corporation of India and was holding that post since July 1, 1968.\n\nAfter giving the history sheet of respondents Nos. 2 to 16, the petitioner claims that he\n\nwa~ the senior most amongst them and that his seniority has been so stated in the relevant seniority list.\n\nAfter referring to the rules as originally framed and the amendments made from time to time. the petitioner attacks the yalidity of rr. 28B and 32 and the Circular dMed August 27, 1966 on the same grounds as those mentioned in Civil Appeal No. 18115 of 1970. According to the petitioner respondent Nos. 2 to 16 were all his juniors and on the basis of the illegal rules and the directions given in the Circular, officiating promotions have been given to those respondents to the Senior Scale under the Order dialed January 4. 1967.\n\nThe petitioner further st3tes that after the judgment of the •Division Bench of the Rajasthan High Court, which is under attack in the Civil Appeal, the State Government. passed an order on January 22, 1970 confirming the promotions of respondents Nos. 2 to 16 in the Senior Scale. According to the petitioner as the officia.ting promotions given to those respondents under the Order dated January 4, 1967 were invalid, the order of confirmation is also equally bad. Therefore. he seeks to get that order also quashed.\n\nle--\n\nGUMAN SINGH I'. RA.IASTHAN (Vaidialingam.J.)\n\nB 11\n\nThe St&te Government has filed a very elaborate counteraffidavit. The stand taken by the State in respect of rr. 28B and and 32 as well as the Circular of 1966 and the Order dated January 4, 1967 is the sa.me as in the Civil Appeal. The State has further contended that as the rules are valid and the circular is also valid, the officiating promotions given under the Order dated Janua-ry 4, 1967 are also valid. In consequence the State points out that the order of confirmation dated January 22, 1970\n\nis also valid. The State disputes the allegation of ma/a {ides and has also pointed out that the Departmental Promotion Committee considered the claims of all the respondents including tha, t of the petitioner for promotion. Promotions were made by the Govem ment on the basis of the recommendation of the said Committee.\n\nThe State finally prays for the dismissal of the writ petition.\n\nComing to Writ Petition No. 139 of 1970, the petitioner challenges the validity of the rr. 28B and 32, the Circular da.ted August 27, 1966 and the Orders dated January 4, 1967 and January 22, 1970. The officers covered by those orders are respondents Nos. 3 to 17.\n\nThe petitioner further challenges the order dated Februa, ry 21, 1970 passed by the State Government promoting and confirming in the Senior Scale the respondents Nos. 18 to 33. The facts leading up to this writ petition may be stated:\n\nThe petitioner after obtaining the B. Sc. (Hons.) Agricultural Degree in the First Division from the Delhi University and the LL. B. Degree from the Agra University joined service in the Delhi Administration on February 6, 1954 a~ Extension Officer, Agriculture. On January 12, 1959 he was promoted a;; Block Development Officer in the Delhi Administration, in which capacity he continued till September 30, 1960. The petitioner joined the Rajasthan Administrative Service on October 1, 1960 after\n\nha.ving passed the competitive examination held by the State Public Service Commission. After the probationary period of one year, he was confirmed in the service with effect from October 1,\n\n1961. His rank has been given as Nos. 332 in the Seniority List of the Rajasthan Administrative Officers issued in 1964.\n\nThe petitioner gives the rank of some of the respondents. After referring to the rules as well as the amendments ma.de from time to rime and the Circular of 1966, the petitioner levels the same attack as against them similar to those in the civil appeal. The petitioner then refers to the officiating promotions to the Senior Sea.le given to the respondents Nos. 3 to 17 by the Order dated January 4, 1967 as well as to the Order dated January 22, 1970, confirming their promotions.\n\nAccording to the petitioner these orders are illegal and invalid for the same reasons urged in the civil a.pJll:lll.\n\nThe petitioner further says that several officers were sele.i; ted on probationary basis and givn promotions. but only respolidents\n\nSUPRBME COURT REPORTS [1971] SUPP. s.c.R.\n\nNos. 18 to 33 were confirmed by the order dated February 21,\n\n1970. These orders. according to the petitioner, aire illegal and the petitioner's claim for promotion has not been properly con- >idered.\n\nThe stand taken by the State Government in this writ petition is also similar to the stand taken in Writ Petition No. 76 of 1970, which, we have already pointed out, agam is similar to the stand taken in the civil appea.l.\n\nAccording to the State Government the claim of the petitioner is not sustainable as he was ineligible for consideration for promotion under the rules.\n\nThe State further contends that the petitioner has not put in the minimum period of six years of service which is a. condition precedent for consideration for promotion to the Semor Scale under r. 32 read with r. 28(2) of the Rules.\n\nThe State further contends that the respondents Nos. 18 to 33 were selected by the Promotion Committee for likely vacancies and their selecuons were in accordance with the Rules. Their promotions were delayed beca.use of the orders of stay granted by the Rajasthan High Court in certain writ petitions filed before it. As soon as stay was vacated, the State Government decided to promote those officers, who had been duly selected. Therefore, according to the State Government the orders dated January 22, and 21st February, 1970 are legal and valid.\n\nFrom the statement of facts mentioned above, it will be seen that the main questions that arises for consideration relate to the validity of rr. 28B and 32 and the Circular dated August 27, 1966.\n\nThe decision regarding the orders da.ted January 4, 1967, January 22, 1970 and February 21, 1970 will largely depend upon the opinion expressed on the validity of the Rules and the Circular.\n\nWe will first take up for consideration the attack levelled against rr. 28B and 32 as being viola.live of Arts. 14 and 16.\n\nWe have already referred to the fact that this attack is made on these rules on the ground that there is no criteria laid down in the rules for assessing the merit of the ofhcers concerned when their claims are being considered for promotion to the Senior Scale.\n\nThe further ground on which this attack is made is that the Rules give arbitrary powers to the Promotion Committees in the matter of assessing the merits of an officer.\n\nAccording to the State, on the other hand, the Rules are valid and the promotions on the ha.sis of merit are also valid.\n\nIt is now necessary to refer to the relevant rules as they originally stood as well as to the amendments made thereto from time to time. In 1954 the rules were framed by the Rajpramukh\n\nOURMAN SINGH v. RAIASTHAN (Vaidialingam, J.)\n\nunder the proviso to Art. 309 of the Constitution to regulate conditions of service of the officers in the Ra.jasthan Administrative Service. We have already referred to the fact that the Rajasthan Administrative Service was formed in the year 1950. There were three Grades in the Service :\n\n(i) Ordinary Time Scale Rs. 285-800 (herein after :o be referred 116 the Junior Scale);\n\n(ii) Senior Scale Rs. 500-1150;\n\n(iii) Selection Grade Rs. 900-1500.\n\nIn the Civil Appeal and the two writ petitions we are concerned with the. promotions from junior scale to the senior scale.\n\nRule 7 relates to the sources of recruitment to the Service. They are, (a) by competitive examination; (b) by promotion of administrative subordinate service; (c) by selection from amongst the prescribed categories of Extension Officers and (d) by special selection from amongst the persons other than the administrative subordinate service in connection with the affairs of the State.\n\nPart lV of the Rules deals with the procedure for direct recruitment. The procedure for recruitment by promotion is deaAt with in Part V, Rule 27, as originally framed dealing with the criterion for selection was as follows :\n\n\"Rules 27. Criterion for selection : (!) For purposes of recruitment by promotion I selection I special selection, selection shall be made on the basis of 'seniority-cummerit' from among all the administrative subordina.tes I Extension officers and others who are eligible for promotion, selection and special selection respectively under the provisions of the Rules\n\n(2) In selecting the candidates for promotion, regard shall be had to their;\n\n(a.) personality and chracter;\n\n(b) tact and energy (including ability to undertake extensive tours);\n\n(c) intelligence and ability to express themselves in English and Hindi clearly;\n\n(d) court and other work;\n\n(e) integrity; and\n\n(f) previous record of service.\"\n\n58-1 S, C. lndia/71\n\nl:I\n\nSUPRElllE COUltT REPORTS\n\n[1971] SUPP. S.C.R.\n\nThe procedure for promotion was laid down in r. 28 as it ongimlly stood. Under sub-rule(!) when a decision is taken that a certain number of vacancies in the service are to be filled up by promotion, the Appointment Department has to inform the Board and the latter has to call upon all Collectors to submit their recommendations by a prescribed date. It woo further provided that the Appointment Department should also call upon the Heads of the Department concerned to submit their recommendations through their respective Administrative Secretaries by a prescribed date. Sub-rules (2) to (6) dealt with the various detMls regarding the submission of the list by the District Collector, the various particulars to be mentioned by the Collector, to the Board, scrutinising the list furnished by the Collector and preparing a list in the order of seniority of candidates considered suitable for promotion. Those sub-rules also dealt with the Head of the Department preparing a list of candidates eligible for promotion in the order of seniority and recording this remarks in respect of those officers. Sub-rule (7) provided for the Committee consis ting of the officers mentioned therein considering the cases of all the candidaites recommended by the Board and the Administrative Secretaries and interviewing them, if necessary. It also provided for the Committee selecting the requisite number of candidates equal to the number of vacancies likely to occur in the Service and to be filled up by promotion and to the list being prepared in the order of s\"eniority.\n\nThe Committee hoo also to make another supplementary list in the manner mentioned therein in the said sub-rule. Under sub-rule (8) both the lists prepared by the Committee are to be submitted to the Government, who after scrutinising the same have to forward them to the Public Service Commission along with the character rolls, personal files and other particulars relating to the officers mentioned therein. Under sub-rule (9) the names of the candidates considered to be suitable by the Commission are to be reported to the Government for final selection. Under sub-rule (10) it is provided that the final selection is to be made by the Government and a. list of candidates considered suitable for promotion is to be arranged in the order of their seniority.\n\nRule 32 of the Rules as it originally stood made provision for appointment to the Senior scale in the Cadre and it was as follows :\n\n\"Rule 32, Appointments to Senior Posts : Appointments (including in an officiating/temporary capacity) to senior posts shaJI be made by the Government from amongst members of the Service on the basis of seniority\n\nGURMAN SINGH •. RAJASTHAN (Vaidialingam, J.) 915 - cum-merit on the recommendations of a Committee A which shall consist of the following officers : -\n\n(I) Chairman, Rajasthan Public service Commission or a Member nomi nated by him.\n\n(2) Chairman, Board of Revenue\n\n(3) Commissioner, Development Depart\n\nment\n\n(4} Special Secretary to the Government in the Appointments Department\n\nChairman\n\nMember\n\nMember\n\nMember\n\nSecretary\n\nThe Committee shall consider the cases of the persons eligible for promotion by examining their confidential rolls and personal files interviewing such of them as they deem necessary Mid shall select a number of candidates equal to the number of vacancies likely to be filled by promotion.\n\nProvided that Government may fill a vacancy in the senior grade temporarily by a.ppointing thereto for a period not exceeding six months in an officiating capacity, any member of the Service who is eligible for such appointment under these Rules.\"\n\nIt will be seen by a reference to the rules extracted above that promotion was to be on the basis of seniority-cum-merit.\n\nUnder sub-rule (7) of r. 28 and r. 32 a committee has been constituted a.nd it is on the basis of the recommendation made by the said Committee that the promotion is ultimately made by tho Government.\n\nIn 1965 the State Government took a decision to introduce the system of recruitment to the service by promotion on the basis of merit alone. On December 14, 1965 a notification was issued amending the Rules.\n\nA new rule 28B dealing with the promotion by selection on the basis of merit was incorpora.ted, The said rule as originally framed was as follows :\n\n\"28-B Promotion by selection on basis of merit\"\n\n(!) Appointment by promotion to posts in the Service shall be made by selection strictly on the basis Qf merit and on the basis of seniority-cum-merit in proportion of 50:50.\n\nProvided that if the a.ppointing authority is satisfied that suitable persons are not available for appointment by promotion strictly on the basis of merit in a particular year appointment by promotion on the basis of seniority-cum-merit ma.y be made in the same manner as specified in these rules.\n\nSUPREME COURT REPORTS\n\n(1971] SUPP. S .C. R\n\n(2) Selection strictly on the basis of merit shall be made from amongst persons who are otherwise eligible for promotion under these rules; the number of eligible candidates to be considered for the purpose shall be ten times the total number of vacancies to be filled in on the basis of merit and seniority-j; u; m-merit provided such number is avaiilable; where the number of eligible candidates exceeds ten times the number of vacancies, the requisite number of senior-most persons shall be considered for the purpose.\n\n(3) Except as otherwise expressly provided in this rule the procedure prescribed for selection to the post on the basis of seniority-cum-merit shall, so far as may be. be followed in making selection strictly on the basis of merit.\n\n(4) The Committee shall prepare a. separate list of candidates selected by it on the basis of merit and shall arrange their names in order of preference.\n\n(5) Where consultation with the Commission is necessary the list prepared by the Committee shall be forwa.rded to the Commission by the appointing authority along with the personal files and confidential rolls of ail! persons whose names have been considered by the Committee.\n\n(6) The Commission shall consider the lists prepared by the Committee along with other documents received from the appointing authority and unless any change is considered necessary, shaU approve the lists and if the Commission considers it necessary to make any change in the lists received from the appointing authority the Commission shall inform the appointing authority of the changes proposed and the appointing authority, after taking into account the commences, if, any, may approve the lists finally with such modifications, as may in his opinion, be jnst and proper.\n\n(7) Appointment shall be made by the appointing authority taking persons out of the list finally approved under the proceeding sub-rule in the order in which they haive been placed in the list.\n\n(8) Among persons appointed in the same class, category or crade of posts during the same year, persons appointed on the bais of seniority-c1;1m-merit shall ank senior to those appomted by promotion on the ba.s1s of merit; the seniority inter se of persons appointed in the\n\nOllllMAN SINGH y. l\\AJASTHAN ( Vaidialingam' J.) 917\n\nsame class, category or grade of posts by promotion strictly on merit, shall, without regard to the order of preference, be determined as if such persons had been appointed by promotion on the seniority-cum-merit.\n\n(9) The provisions of this rule shall have effect notwithstanding anything to the contr&ry contained in any other provisions of these rules.\n\nExplanation :-For the purpose of determining the number of vacancies to be filled on either basis under sub-rule (!), the following cyclic order shall be followed from year to year.\n\n\"The first by merit.\n\nThe next by seniority-cum-merit.\n\nThe next by merit.\n\nThe next by one by Seniority-cum-Merit\n\nTne cycle to be repeated.\"\n\nBy the same notification of December 14, 1965 sub-rule (2) of r. 27 was deleted.\n\nOn fanuary 7, 1966. a further amendment was made to the rules by deleting sub-rules (2) to (6) of r. 28. It will be seen that under the new r.\n\n28B, promotion to posts in the service is to be made by selection on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50:50.\n\nSub-rule (2) provided for the manner of selection on the basis of merit. Under sub-rule (3) procedure prescribed for selection to the posts on the basis of seniority-cummerit has to be followed as far as possible in maiking selection strictly on the basis of merit. On August 26, 1966 by a notification certain amendments were made in r. 28B.\n\nUnder sub rule (!) of r. 28B, the original proportion of selection on the basis of merit and on the basis of seniority-cum-merit was aJtered\n\nand the proportion was fixed as 1:2. A proviso was also added to sub-rule (2) of r. 28B, which is as follows :\n\n\"Provided that for the first Promotion in the same cadre (from a lower grade to higher grade) against the merit only such of the persons shall unless a higher period is prescribed elsewhere in these rules be eligible who have put in not less than six years of service in the lower grade of the cadre.\"\n\nSUPREME CoURT REPORTS [1971] SUPP. s.c.R.\n\nOn September 8, 1966, the old r. 32 was substituted by a. new rule dealing with the appointment to Senior Posts.\n\nThe said new rule 32 runs as follows :\n\n\"32(1) Appointment to senior posts :\n\nAppointment to Senior scale and section grade posts shall be made by Government from amongst the members of the service on the basis of merit and seniority-cum-merit in the ratio of 1:2 on the recommendations of a Committee which shall consists of the following:-\n\n\"(!) Chairman, Rajasthan Public Service Commission, or a Member nominated by him.\n\n(2) Chairman, Board of Revenue\n\n(3) Commissioner, Development Department.\n\n(4) Special Secretary , to Government in the Appointments Department.\n\nChairman.\n\nMember.\n\nMember.\n\nMember.\n\nSecretary.\n\n(2) Except as provided in this rule, the procedure and the principles for selection by merit, shall, in so far as it may apply, be the same 36 provided in rule\n\n28B.\n\nFor selection by seniority.cum-merit, the Com;. mittee shall consider the cases of all the persons eligible for promotion by examining their confidential Rolls and Persona,! files and interviewing such of them as may deem necessary. and shall select a number of candidates equal to the number of vacancies likely to be filled by promotion by seniority-cum-merit :\n\nProvided that Government may fill a vacancy in the Senior scale or election gr81de posts temporarily by appointment thereto for a period not exceeding six months in an officiating capacity, any member of the service who is eligible for such appointment under the rules.\"\n\nThis new rule was also incorporated to give effect to the Government's decision taken in 1965 to introduce the system of recruitment to the service by promotion on the basis of merit, as a result of which r. 28B was earlier incorporated. Rule 32 really deals with appointments to Senior Posts; and under the old rule the promotion was to be on the basis of seniority-cum-merit. That is altered under the new rule to promotion on the basis of merit and seniority-cum-merit and the proportion is also 1:2 as already la.id down by the amendment made on August 26, 1966. Sub-rule\n\n(2) of new r. 32, as will be seen, provides for the procedure and\n\n) )\n\nGURMAN SINGH v. RAJASmAN (Vaidialingam, J.) 919\n\nthe principles for selection by merit being the same as provided in r. 28B. Therefore, it will be seen that the position as it stood at the time when promotions of the various respondents in the appeal and in the writ petitions were made was : (!) the promotions had to be made on the bai; is ot merit and seniority-cum-merit in the ratio of 1 :2 as provided by Rule 32 read with r. 28B;\n\n(2) under the proviso to sub-rule 2 of r. 28B the minimum period of eligibility for being considered for the first promotion is six years of service in the lower grade of the cadre;\n\n(3) under sub-rule 2 of r. 28B the selection for promotion is restricted only to officers eligible for promotion under the rules coming within ten times the total number of vacancies to be filled up on the basis of merit and seniority-cum-merit;\n\n(4) under r. 32 appointments to Senior scale and Selection cadre posts are also on the basis of merit and seniority-cum-merit in the ratio of 1:2, and ·\n\n(S) recommendations for appointments and promotions are to be made by the Committees concerned.\n\nIt is the grievance of the appellant aind the writ petitioners that the combined effect of the addition of r. 28B and the deletion of sub-rule (2) of r. 27 and sub-rules (2) to (6) of r. 2B is that although a provision has been made for recruitment to the service by promotion on the basis of \"merit alone\", no criteria. for assessing the merit and suitability of the candidates have been provided in the rules as they stand. In fact their further contention is that sub-rule (2) of r. 27 bad laid down the various criteria for considering the suitability of a candidate and sub-.rules (2) to (6) of r. 28 had dealt with the procedure for selection of such cll!ndidates. When once these sub-rules have been deleted there is no guidance whatsoever furnished by the rules, as they now Stand, for assessing the merit. Further, the restriction placed under r. 28B that only candidates coming within 10 times the number of vacancies that have to be filled up will be considered for selection and the further restriction therein that for the fir.st promotion six years' service is essential, are violative of Arts. 14 and 16. Rule 32, according to Mr.\n\nGarg, does not also lay down any guidance or principle for assessing the merit of candidates for promotion to Senior posts.\n\n\" e are not inclined to accept these contentions of Mr. Garg.\n\nWe have already referred to the fact that the learned Single Judge, in the writ petition leading up to the civil appeal, is of the view that rr. 28B and 32 do not offend either Art. 14 or 16. But the\n\ntl20\n\n\n[1971] SUPP. S.C.R.\n\nlearned Judge is of the view that as there is a restriction placed upon the number of officers whose claims could be considered, , under sub-rule (2) of r. 28B. that part of the sub-rule Wllil invalid as offending Art. 16. As the said part cannot be separated, according to the learned Judge, from the other parts of the sub-rule, the whole of sub-rule (2) of r. 28B was struck: down. The Division Bench, on the other hand, has disa.greed with this view of the learned Single Judge and has upheld the validity of the entire subrule (2) of r. 28B. We are in agreement with the views expressed by the Division Bench that rr. 28B and 32 do not offend either Art. 14 or 16.\n\nNor are we impressed with the contention of Mr. Garg that there is no principle laid down in the rules for assessing the merit of ain officer especially after the deletion of sub-rule (2) of r. 27 and sub-rules (2) to (6) of r. 28. No doubt sub-rule (2) of r. 27 enumerated certain factors or matters to be taken into account in selecting candidates for promotion. Sub-rules (2) to (6) of r. 28, no doubt also dealt with certain aspects of procedure to be adopted for promotion. The deletion of those ub-rules, in our opinion, does not make the rules 28B a.nd 32 in any manner invalid. We have already extracted the relevant rules and also pointed out that the selection or promotion is to be considered by the Committees referred to therein._ It is no doubt argued by Mr. Garg that introduction of the idea of merit in the procedure of promotion brings in an element of personal evailuation and such personal evaluation opens the door to the abuse of nepotism and favouritism. Hence it is argued that there is a violation of the constitutional guarantee under Arts. 14 and 16.\n\nWe are unable to accept this contention. The State Government has taken a decision in 1965 that selection to the service and promotion have to be on the basis of merit and senioritycum-merit. There can be no controversy that the main object in such matters is to serve public interest and not the personal interest of the members o( the oaicial oup concerned.\n\nAs stated by Leonard D. White in his Introduction to the Study of Public Administration, 4th Edition p. 380 : \"The Public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants, are enabled to move as ra.pidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit iystem ouglit to apply as specifically in making promotions as in original recruitment.\" The above statement has been quoted with approval by this Court in Sant Ram Sharma v. State of Rajasthan and Another(') We may also point out that the Administrative Reforms\n\n(I) [1%8] l S. C.R. 111.\n\nOURMAN SINGH v. RAJASTHAN (Vaidialingam, J.) 921\n\nCommittee has also emphasised that merit should be given ade- A equate weighta•ge in the matter of promotion especially for senior appointments to ensure greater efficiency in government functioning and also to provide adequate incentive to government servants to -give their best.\n\nRule 32 in essence adopts what is stated in rule 28B. The latter rule provides for two methods of selection : one based on merit and the other based on seniority-cum-merit. In other words, the rule provides that .the promotion based on merit in contradistinction to that based on seniority-cum-merit shall strictly be on the basis of merit. The Selection Committee and the Promotion Committee consist of very responsible and .senior officers of the State and being persons of experience they can be trusted to eva•\n\nluate the merits of a particula, r officer. No doubt the term 'merit' is not capable of an easy definition, but it can be safely said that merit is a sum total of various qua, lities and attributes of an employee such as his academic qualifications, his distinction in the University, his Character, integrity, devotion to duty and the manner in which he discharges his official duties. Allied to this -may be various other matters, or factors such as his punctuality in work, the quality and outturn of work done by him and the manner of his dealings with his superiors and subordinate officers and the general public and his rank in 1he. service. We are only indicating some of the broad aspects\n\nthM may be taken into account in assessing the merits of an officer.\n\nIn this connection it may be stated that the various particulars in the annual confidential reports of an officer, if <:arefully and properly noted, will also _give a very broad and general indication regarding the merit of an officer.\n\nTherefore, it cannot be stated that rr. 28B and 32 are in any manner vague or do not give any guide line for assessing the merit of an officer.\n\nNo doubt iub-rule (2) of r. 27 dealt with certain factors which are to be taken into account for considering the claims for promotion, but when it comes to a• question of merit, not only those factors but also certain additional factors and circumstances will have to be taken into account and such an evaluation of merit has been left under the rules to a Committee consisting of responsible, senior and experienced officers of the State.\n\nWe are also not impressed with the contention that Rule 28B(2) and its proviso confining the selection to senior-most officers not exceeding ten times the number of total vacancies\n\nto be filled up and the further restriction regarding the eligibility of officers who have put in 8!t least six years of service H for first promotion offend Art. 16 of the Constitution. fn this respect also we agree with the views expressed by the Division Bench of the Ra jasthan High Court in D. B. Special Appeal\n\nSUPREME COURT REPORTI> [1971] SUPP. s.c.R.\n\nNo. 57 of 1968, The restriction contained in the proviso to subrule (2) of r. 28B in our opinion, is quite reasonable.\n\nBefore an officer in the Junior scale can be considered aB fit for promotion to the Senior scale, it is necessary that he should have worked on a post in the Service at least for some period of time. As to what quantum of that peiiod must be is not for this Court to lay down.\n\nThe Government ha.s fixed this period as six years.\n\nWe are not in a position to say that it is an improper restriction.\n\nThe provisions contained in sub-rule (2) confining the selection to senior-most officers not exceeding 10 times the number of total vacancies is also, in our opinion, reasonable.\n\nSuch a provision will encourage the members of the service to aspire for promotion for making themselves eligible by increasing their efficiency in the discharge of their duties. We are of the view that rr. 28B and 32 do not offend either Art. 14 or 16 of the Constitution.\n\nNow coming to the Circular dated August 27, 1966, we find it difficult to agree with the view of the Division Bench of the Ra jasthan High Court. On the other band, we ace inclined to agree with the decision of the learned Single Judge in Writ Petition No. 79 of 67. The contention of Mr. Garg is that the Orcular by executive instructions has abridged or curtaiiled drastically the exercise of discretion by the Departmental Promotion Committee constituted under the mies.\n\nIn fact his plea is that the circular has superseded the statutory rules framed under the proviso to Art. 309. On the other hand, it is the contention of the learned Solicitor-General, appearing for the State and of Mr. B. Sen, leairned counsel: appearing for some of the respondents, that the Circular has not in any manner interfered with the powers of the Committees constituted under the Rules.\n\nOn the other hand, in order to bring about uniformity in the application of the principles for assessing the merit the marking system which bas been in vague from 1960 has been adopted with slight modifications in the Circular of 1966. The instructions contained in the Circular only provide guidance ta the Committees concerned and those instructions do not in any way contravene any of the rules.\n\nBefore we deal with 1hls aspect, we can dispose of a subsidiary contention that has been raised by Mr. Garg. According to him the circular has been issued by the Chief Secretary as the Head of the Service and it is not an order of the Government.\n\nThis has been accepted by the Strte Government. If so, it fol lows that the Circular is illegal amd void. We have already refer red to the stand taken by the State Government in this regard.\n\nThey have specifically taken the stand that the circular has been issued by the Chief Secretary as l1:!e d of tile Serviu. Before the Divisixm Dench in the High Com1i when this imtter was api; D.\n\n\\ /\n\nGURMAN SINGH '. RAJASmAN ( Vaidia/ingam, J.) 9 u\n\nraised by the appellant, it is seen that an application for amending A their counter-affidavit was made by the State to make the position cleair that the Circular was issued with the approval of the Government. As pointed out by the Division Bench there is some confusion in this regard. But ultimately the Division Bench bas stated that they themselves hiwe gone through the Cabinet file and the notes and satisfied themselves that the Circular has been issued u. with the approval of the Government. Therefore it follows tha.t the Circular is an order of the Government and not of the Chief Secretary alone.\n\nThen the question is whether the Government is competent to issue the said Circular and whether the Circular in any manner effects the discretion and powers of the Committee functioning C under the statutory rules. The position is clear, as laid down by this Cdllrt in Sant Ram Sharma v. StoJe of Rajasthan and another ('):\n\n\"It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Govern- D ment can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.\"\n\nHaving due regard to the principles stated above, we will now examine the scope and contents of the Circular. The Circular contains administrative instructions and it does not profess E to lay down anything else. The Government have issued those instructions \"for the guidance of a.11 selection I promotion committee and appointing authorities mentioned in the statutory service Rules.\n\nThese administrative instructions and the statutory service Rules should together be taken a.s a complete code on the subject.\" F.\n\nFrom the above extract it is clear that in the matter of selection or promotion the Committees concerned are enjoined not only to have regard to the statutory rules under which they function, but also to the administrative instructions given in the Circular. This makes it very clear that it is not open to the Committee concerned to ignore the instructions contained in the Cir- G: cular or to act contrary to the directions contained therein.\n\nTherefore, it will be seen that if the Circular or any part of it gives instructions contrary to or opposed to any of the rules, the Circular or that part of the Circular to that extent will be invalid. In particular we may refer to paragraphs 3 and 5 of the Circular.\n\nParagraph 3 deals with the merit formula and is as e. follows :\n\n(1) [1968) 1 S. C.R. 111\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\n3(a) \"Merit formula\" means that out of 75 marks (marking system has been defined in paragraph 5), a person should get a minimum of 65 mairks for consideration of his case for promotion among those who have secured 65 or more marks, the person who gets highest marks will be the first to be promoted, and the person who comes next in the range of marks will be the second to be promoted, and so on. The inter-se seniority of persons had been appointed in the same class, category or grade of posts by promotion strictly on merit shall without regard to the order of pre{erence, be determined as if such persons had been appointed by promotion on the basis of seniority-cum-merit.\n\nThis is illustrated by the following example :\n\nName of the No. of Seniority in the Officer Marks. next below grade.\n\nA 75 8 B 73 9 c 70 4 D 69 3 E 65 I\n\nThat if there are 5 vacant posts to be filled by promotion on the basis of 'merit' formula the inter-se seniority of these 5 selected persons will be the same as in next below grade, but if only 3 posts are to be filled then those who have secured 75, 73 81Ild 70 marks respectively will be selected and the remaining left out. The inter-se seniority amongst these selected shall be the same as the next below grade.\n\n(b) The eligible candidates for promotion on the basis of 'merit' formula shall be I 0 times the total number. of vacancies to be filled by way of promotion provided such number is available and they should be holding the post in the next below cadre in substantive capacity.\n\nAs for example, if there are twelve posts to be filled by waiy of promotion on the basis of both the formula (viz. four posts for merit and eight for seniority-cum-merit) the total number of eligible candidates for promotion on the basis of merit formula shall be 120.\n\nIf available, if an officer could not secure 65 marks continuously for 5 years he will not be included in this list of eligible candidates.\n\n(c) Notwithstainding anything contained in sub-para\n\n(b) above, for first promotion by merit, only such of the candidates shall be eligible who have put in six years service in the cadre on the date of selection.\"\n\nGURMAN SINGH v. RAJASillAN (Vaidia/ingam, J.)\n\nParagraph 4 of the Circular lays down what is \"seniority cum-merit\" formula.\n\nThe ma.rking system which is applicable both to the selection based on 'merit' as well as to the 11election based on \"seniority-cum-merit\" is contained in paragraph 5 . . That paragraph reads as follows : ·\n\n\"Para-5 The marking system will be as follows :\n\n(a) Confidential Rolls for the 5 calendar years im mediately 'preceding the date of selection will be exa mined. 5 marks will be ear-niarked for each year's confidential Roll, and the marking will be :-Excellent re port-5 marks; Very good report-4 marks; Good report ,,,..3 marks; Satisfactory report-2! marks; Unsatisfactory\n\nreport-2 marks; Adverse report-I! marks; Ad verse report with punishment I mark. If a per- . son has been awarded either 'Merit Pay' or 'Cash award' by the Government, then the Committee may award him upto 5 more marks in addition to the marks already obtained by him. These additional marks will not be taken into consideration at the time of the next selection.\n\n(b) The record of service, which means service book, personal file, and Confidential Rolls other than the Confidential Rolls of the 5 yea.rs immediately preceding the selection maintained after the formation of Rajasthan, will be allotted 50 marks, and the marking will be (a) average or sMisfactory record -50 marks, and (b) deduction upto 2 marks for each punishment according to gravity may be made (no deduction will be made for mere warning, but where warning has been re corded in Confidential Roll, it should be considered as punishment and marks should be deducted). 'Recorded warning' means censure given by way of punishment under the C.C.A. Rules. If some marks have been deduct ed for any punishment out of 50 marks in any year of selection, then that deduction should not be repeated or counted in the next selection. Also if some marks have been deducted from the Confidential Roll of a particular year, then that deduction should not be repeated or coun ted next time. That Confidential Roll should be consi\n\ndered satisfactory, and marks awarded accordingly, with a view to ensure implementation of this, it would be necessary for tbl: promotion Committee to keep a record or such deductions and additional marks as the case ma, y be.\n\n\n(1971] SUPP. S.C.R.\n\n(c) On the basis of above marking, only such persons who have secured a minimum of 6t marks out of the total of 75 marks will be considered for promotion on the basis of 'Seniority-cum-merit' formula.. Thus, as has been mentioned earlier, even if a junior person secures more than 62! marks, the senior will not be superseded if he has secured 62! marks. Under the 'merit' formula those who have secured 65 marks or more will only be considered for promotion.\"\n\nParagraph 6 dealing with officers, who ca.n be called for interview provides that a person who has secured less than 62! marks shall be called for interview.\n\nBut persons who get less than 61 marks, should not be called for interview. It further provides that those persons whose confidentia.1 Rolls were missing or whose confidential Rolls could not be prepared in their absence for study or training outside India should also be called for interview.\n\nPara 7 of the circular lays down that adverse remarks recorded in the Confidentia.I Rolls should be communicated to the person concerned in time, so that he may get an opportunity to represent his case to the authority concerned. However, if by chance, adverse remarks have not been communicated to him, or if the adverse remarks have been communicated but his representation ha.d not been decided by the appropnate authority, then in that event the person concerned should be called for interview by the selection or the promotion committee and before he is asked to appear for interview adverse remark sho11ld be communicated to him so that he could come prepared with what he has to say in the ma.tter. It was left open to the selection or promotion committee to treat the adverse remarks as expugned and then award marks if it felt that the adverse remarks were not justified.\n\nIt was clearly emphooised that normally efforts should be made to communicate the adverse remarks and to decide the representations before the selection committee meetl!.\n\nIn para 9 of the circular it was pointed out to all selection committees and appointing a.uthorities that the assessment of confidential rolls and the awarding of remarks thereon should be rational, judiciously liberal and objective, the reason being that at time8 a confidentia.l roll may have been written with a greater sense of responsibility and at other times it ma.y not have been given due care. It was also observed by way of illustration that one officer might be liberal ill' the assessment of his subordinates while another may be a bit miserly or sometimes vindicative.\n\nIt was, in order to have a balanced approach in the matter it might at time be worthwhile for the selection committee as also\n\nGUllKAN SINGJi-,; ltAJASTllAN (Vaidfalingam, J.)\n\nfor the appointing authority to consider whether the reporting offi cers themselves enjoyed reputation for efficiency, impartiality and integrity.\n\nFinally the circular pointed out that the instructions contained therein should be strictly kept in view while persons are being considered.for promotion, the reason bemg that evaluation and assessment of confidentia.l rolls make or mar the service prospects of government employees.\n\nOne gets a fairly good picture of the nature of the instructions contained in the circular issued by the Government. No doubt a properly evaluated marking system may be helpful for .assessing the merit of persons who are already in service. But the instructions given in the circular are so rigid that they ace opposed to the selection to be made strictly on merit as provided under rr. 28B and 32.\n\nFor instance the marking system provides 50 marks for the record prior to 5 years and for the five years preceding the selection the marking of 25 is to be on the basis of confidential rolls.\n\nFrom this it is clear that an officer who has rendered less than five years of service will not be eligible to get a single mark •Out of 50 which is provided for the record for the period preceding five years for the simple reason that he will have no such record. The officer who has put in less than five years of service has been straightaway denied 50 marks out of 75 macks and he has to establish his worth within the small range of 25 marks on .the basis of his confidential rolls which will be available for 81 period of less than five years. This formula of marking is certainly opposed tor. 28B and r. 32, the object of which is to ensure that merit and merit alone is to form the basis for promotion, as against the quota fixed for merit, In contra-d1stinction to seniority-cum-merit.\n\nSimilarly, when one considers the question of first selection, the position is still more anamolous. An officer who has put in just six years of service will get 50 marks for his record of provious service which just exceeds five years by one year. Another officer will have to face the situation with a longer period of service. There can be no comparison of the claims of the two officers on merits. While the rules give 81 wide discretion to the Committee for judging merit, paragraphs 3 and 5 of the circular place undue restrictions and limitations on the exercise of discretiQn and thus fetter the powers of the Committee. That is opposed to rr. 28B and 32.\n\n, .\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R ..\n\nSimilarly, in the matter of giving ma.rks for excellent report. very good report, good report, satisfactory report, unsatisfactory report, adverse report and adverse report w\\th punishment, the circular is arbitrary. It will be seen that an officer who has satisfactory report gets 2! marks, and another officer with an unsatisfactory report gets 2 marks. The officer with an. adverse report gets 1 t marks.\n\nWe fail to see any rhyme or reason in this making system.\n\nAgain, under the Rules the Committee concerned, has a discretiCWI if it deems necessary to call for interview any person, whose claims are being considered by it. But this exercise of discretion is drastically curtailed by paragra, ph 6 of the circular laying down the circumstances under which a person, should or should not be called for interview.\n\nThe Committee under the said paragraph has only to mechanically apply the directions contained therein. This provision is again a serious inroad on the powers conferred on the Committees by the Rules.\n\nWe are not inclined to accept the view of the learned Judges of the Division Bench that the circular merely gives a broad guidance to the Committees concerned and that the inS'lrllcti earlier. Under these clrcumsmnces we do not think that we would'.\n\n(ll 25 J.T. R. 79.\n\nc.1.T. v. BALKRISHAN (Hegde, J.) 9i$\n\nbe justified in departing from the' interpretstion placed by the A Madras High Court in Viswanathan Chettiar's case(') though a different view of the law may be reasonably possible.\n\nIn the result this appeal fails and the same is dismissed.\n\nBut in the circumstances of the case we make no order as to costs.\n\nG.C Appeal dismissed.\n\n(I.I 2$ J.T.L 79 •", "total_entities": 37, "entities": [{"text": "COMMISSIONER OF INCOME TAX, WEST BENGAl", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, WEST BENGAL", "offset_not_found": false}}, {"text": "BALKRISHAN MALHOTRA", "label": "RESPONDENT", "start_char": 42, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "BALKRISHAN MALHOTRA", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 79, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "K.S. 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"PROVISION", "start_char": 8770, "end_char": 8778, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(3)", "label": "PROVISION", "start_char": 9052, "end_char": 9060, "source": "regex", "metadata": {"statute": null}}, {"text": "may also note that the Act has been repealed by the Income-tax Act, 1961", "label": "STATUTE", "start_char": 9774, "end_char": 9846, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]} {"document_id": "1971_1_956_962_EN", "year": 1971, "text": "WOPANSAO\n\nN. L. ODYUO & ORS.\n\nJuly 28, 1971\n\n[J. M. SHELAT AND A. N. RAY, JJ.]\n\nRepresentation of the People A.ct, 1950-Section 20(3) & 30-Service Personnel-Statutory fiction does not take away right to get registered in constituency where personnel ordinarily residing, though place of .service\n\nalsv---Electoral roll-Finality of.\n\nThe appellant challenged the election of respondent No. I to the Naga Land Assembly on the ground that the result of the election in so far as it concerned the respondent had been materially affected by the improper reception of votes cast in his favour by the personnel of the 12th Battalion Assam Rifles. It was urged (i) that the Electoral Registration Officer had no jurisdiction to register the personnel of the 12th Batallion Assam Rifles as voters, because, the service personnel under s. 20(3) of the 1950 Act would be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualifications he would have been ordinarily resident on that date and (ii) that the service personnel were not Indian citizens. The High Court dismissed the election petition. Dismissing the appeal to this Court,\n\nHELD: (i) Section 30 of the 1950 Act does not confer jurisdiction on a civil court to entertain or adjudicate upon a question whether a person is or is not entitled to register himself in the electoral roll of a constituency or to question the illegality of the action taken by or under the authority of the Electoral Registration Officer or any decision given by the authority appointed under the 1950 Act for the revision of any such roll. The civil court therefore would have no jurisdiction to adjudicate upon a question whether the personnel of the 12th Battalion Assa1n Riff.cs in the present case were validly registered as service electors. [958E, F]\n\nB. M. Ramaswamy v. B. M. Krishnamurthy. [1963] 3 S.C.R. 479 and Kabul Singh v. Kundan Singh, [1970] I S.C.R. 845, referred to.\n\n(ii) But lack of power in the Electoral Registration Officer to register voters in violation of the provisions of the relevant statutes would lead to the ground of improper reception, refusal or rejection of any vote or reception of any vote which is void and would. therefore, be a ground for avoiding the election under s. 100(1) (d) (iil) of the 1951 Act.\n\n[959GJ\n\nBaidyanath Panjiar v. Sitaram Mahto, [1970] I S.C.R. 839, referred to.\n\n(iii) In the present case the Electoral Registration Officer was within his jurisdiction to register the personnel of the 12th Batallion as ordinary residents in the constituency by reason of their statements in the prescribed forms. The effect of s. 20(5) of the 1950 Act is that statement of a member having service qualification is to be accepted as correct in the absence of evidence to the contrary. There was no evidence to displace the state ments in tho present case. [960E)\n\nUnder 1. 20(3) a fiction is created that members having service qualification would be deemed to be ordinarily resident at their home town or place but for their service qualification. The statutory fic\\ion is intended\n\nWOPA!CSAO V. N. L. ODYUO (Ray, J.) 957\n\nto confer the riaht to be reaistered as electors at their homo town or vii- A !age but the fii; tion cannot take away the riaht of persons possessinc\n\nservice qualification to aet themselvea reaistered in a constituency in which they were ordinarily residina tbouah 1uch place happens to be their place of service. [961B)\n\n!iv) There was no evidence to substantiate the alleaation that the mom. bers of the service personnel were not Indian citizens. On the contrary it was in evidence that the Electoral Registration Officer was satisfied about' B the declarations of the members of the service personnel about their citi zenship. [962F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1792 of 1970.\n\nAppeal under s. 116A of the Representation of the People Act, 1951 from the judgment and order dated July 17; 1970 of the Assam and Nagaland High Court in Election Petition No. 1 of 1969.\n\nV. K. Krishna Menon, D. P. Singh, Narayana Net/or and V. J. Francis, for the appellant.\n\nA. K. Sen, S. K. Ghosh, Naunit Lal, A. R. Barthakur, R. C.\n\nChaudhary and Swranjit Sodhi, for respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nRay, J.-This is an appeal from the judgment dated 17 July, 1970 of the High Court of Assam and Naga.land dismissing 1he appellant's election petition .\n\n. The appellant, respondent No. I Odyuo .and respondents No. 2 allfl 3 were candidates at 37-Wokha Constituency.at the election held in the month of February, 1969 for the purpose of constituting a new Lepslative Assembly of the State of Nagaland.\n\nThe respondent Odyuo was declared elected. Odyuo obtained 1517 votes and the appellant 1485 votes.\n\nOdyuo secured 32 votes more than the appellant.\n\nThe appellant challenged the election of the respondent Odyuo as a member from 37-Wokha Constituency in the Naga- G land Constituent Assembly.\n\nThe grounds for imhing the election were principally these. First, the result of the election in so far as it concerned the respondent Odyuo had been mate rially affected by the improper reception of 348 votes cast in his favour by the personnel of the 12th Battalion Assam Rifles then posted at Wokha and also by the wives of some of them who in view H of section 20(3) of the Representation of the People Act, 1950 referred to for the sake of brevity as the 1950 Act were not eli\n\ngible to be enrolled as voters in the electoral roll of the Wokh31\n\nSUPREME COURT REPORTS [1971] SUPP. s.c.R.\n\nConstituency. Second, the majority of those 348 voters were not citizens of India, and, therefore, the votes cast by them in favour of the respondent Odyuo were void. Third, if the aforesaid 348 votes or the majority of them as void votes were left out of account, the appellant had secured a majority of valid votes.\n\nAmong the ten issues framed at the trial counsel for the appellant advanced arguments only on two issues. First, whether the personnel of the 12th Battalion, Assam Rifles whose names are registered as service electors in the last part of the Electoral Roll for 37-Wokha Constituency would, but for their service qualification, have been ordinarily resident of Wokha Constituency within the meaning of section 20(3) of the Representation of the People Act, 1950. Second, whether any of the electors registered as service electors in the last part of the said Electoral Roll were not Indian citizens.\n\nThis Court in B. M. Ramaswamy v. B. M. Krishnamurthy & Ors.(') held that the finality of the electoral roll cannot be challenged in a proceeding impeaching the validity of the election. The effect of section 30 of the 1950 Act was construed by this Court in the recent decision in Kabul Singh v. Kundlm Singh & Ors.(') to be that sections 14 to 24 of the 1950 Act are a complete code in the matter of preparation and maintenance of electoral rolls and section 30 of the 1950 Act does not confer jurisdiction on a civil court to entertain or adjudicate upon a question whether a person 'is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the Electoral Registration Officer or any decision given by the authority appointed under the 1950 Act for the revision of any such roll.\n\nThe civil court therefore would have no jurisdiction to adjudicate upon a question whether the personnel of the 12th Battalion Assam Rifles in the present case were validly registered as service electors. The contention on behalf of the appellant in the present case was that the Electoral Registration Officer had no jurisdiction to register the personnel of the 12th Battalion Assam Rifles as voters in Wokha Constituency because the service personnel under section 20(3) of the 1950 Act would he deemed to be ordinarily residents on any date in the constituency in which, but for his h3ving such service qualification, he would have been ordinarily resident on that date.\n\nThe gist of the appellant's contention is that the members having service qualification cannot be registered as voters in the constituency in whieh they are posted or stationed in service and the Electoral\n\n(!) [1963] 3 S.C.P.. 479.\n\n(2) [1970] I S.C.R. 845\n\n__,\n\nWOPANsAO V. N. L. ODYUO (Ray, J.)\n\nRegistration Officer would have no jurisdiction to register the persons having service qualification as voters in the constituency in which they are stationed In service.\n\nThe jurisdiction of the Electoral Registration Officer who registered the personnel of the 12th Battalion Assam Rifles as voters in Wokha Constituency wall impeached on the ground that the service personnel were in\n\nth~ eye of law not ordinarily resident In the Wokha Constituency and as such they were not eligible to be registered as voters in the electoral roll of the said constituency.\n\nThe other grounds on which the qualification of the service personnel to be registered as voters in the Wokha Constituency was questioned was that they were not Indian citizens.\n\nArticle 326 of the Constitution confers voting rights on citizens of India.\n\nSection 16 of the 1950 Act disqualifies a person for registration as a voter if he is not a citizen of India. Section 62 of the Representation of the People Act, 1951 called the 1951 Act prohibits a person from voting at an election in any constituency if he is subject to any disqualifications mentioned in section 16 of the 1950 Act. Under section !OO(l)(d)(iii) of the 1951 Act if the result of the election in so far it concerned the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or reception of vote whlch is void, the court would have jurisdiction to declare such an election void.\n\nTherefore, if the allegation that the personnel of the 12th Battalion Assam Rifles were not Indian citizens was established;'\"\" it was submitted that the election would be declared void.\n\nThe jurisdiction of the Electoral Registration Officer to register the voters was submitted on behalf of the appellant to be an infraction of the provisions contained in sectio11 20 of the\n\n1950 Act on the ground of the service personnel not being entitled to be voters at Wokha Constituency, and of section 16 of the 1950 Act read with section 62 of the 1951 Act challenging the qualification of the voters on the ground of citizenship.\n\nThis Court in Baidyanath Panjiar v.\n\nSitaram Mahto & Ors.(') held that the lack of power of the Electoral Registration Officer to register voters in violation of the provisions of the relevant statutes would lead to the ground of improper reception, refusal or rejection of any vote or reception of any vote which is void and would. therefore. be a ground for avoiding the election under section I OO(l)(iii) of the 1951 Act.\n\nSection 20 of the 1950. Act gives the meaning of the words 'ordinarily resident'.\n\nUnder section 20(3) of the 1950 Act any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he woald have been 0rdinarily resident on that date. Service qualification is defined in section\n\n(\\) [IJ7J] I S. C.R. 839.\n\n960 IUPlllll! COVllT RIPOllTS [1971] SUPP. s.c.ll.\n\n20(8) of the 1950 Act to mean inter alio a member of the Armed i:orces of the Union, or a member of a force to which the provi s1ons of the Army Act, 1950 have been made applicable. Section 20(5) of the 1950 Act enacts that the statement of any person as is referred to in section 2()(3) in the Act made In the prescribed form and verified in the prescribed manner, that but for his having the service qualification he would have been ordinarily resident in the specified place on any daote, shall, in the absence of evidence to the contrary, be accepted as correct.\n\nUnder section 20(6) of the 1950 Act tile wife of any such person as is referred to in sub-section (3), shall if she be ordinarily residing with such person be deemed to be ordinarily resident in the constituency specified by such person under sub-section (5).\n\nThe personnel of the 12th Battalion Assam Rifles at Wokha had indisputably service qualification. It is In evidence that the personnel of the 12th Battalion had been residing at Wokha lO years prior to the time of the preparation of the electoral rolls and at the time of preparation of the electoral rolls res:ded at Wokha.\n\nThe service personnel made statements under section 20(5) of the Act that but for their having the service qualification they would have been ordinarily residents at Wokha. They also made statements that their wives were residing with them. They submitted forms in the prescribed forms. These statements made under Rule 7 of the Registration of Electoral Rules, 1960 were submitted to the Registration Officer. The effect of section 20(5) of the 1950 Act is that statement of a member having service qualification is to be accepted as correct in the absence of evidence to the contrary. There was no evidence to displace the statements in the present case. The evidence Is that the Electoral Registration Officer accepted the statements as correct and registered the names of the personnel of the 12th Battalion.\n\nTile contention on behalf of the appellant was that a member h&ving service qualification can only be ordinarily residen~ at the constituency in which but for his having service qualification he would have been ordinarily resident on that date, and, therefore, since Wokha was the place for service, Wokha could not be tl:c place for ordinary residence and his home town or village would be the only place where he would be ordinarily resident.\n\nSuch a construction would be misrea ding section 20(3) of the 1950 Act, .hav!ng sevice qualification would be deemed to be odinarily res1dnt at their home town or place but for their service qualification. When the personnel made statements to the effect that they ordinarily resided at Wokha, they did not want to take advantage of the fiction of being ordinarily resident at their home\n\nWOPAN!IAO v. N. L. ODYUO (Ray, J.)\n\ntown or village but they stated that they were ordinarily resident at Wokha..\n\nThe Electoral Registration Officer was within his jurisdic1io.n to register the personnel of the 12th Battalion as ordinary residents at Wokha by reason of their statements in tile prescribed forms. The statutory fiction is intended to confer the right to be registered as electors at their home town or village bat the fiction cannot take away the right of persons possessin3 service qualification to get themselves registered at a constituency in which they are ordinarily residing though such place happens to be their place of service.\n\nA contention was advanced on behalf of the appellant that i; registering the service electors the Registration Officer did not exercise his discretion but merely carried out the orders and directions of the Chief Ele<; toral Officer. The l{igh Court referred to the directions and instructions for preparation of electoral rolls for Armed Forces personnel and held that the staten1ents in form No. 2 as prescribed by Rule 7 of the Regist\n\nration of Electoral Rules, 1960 were checked PY 'the Pfficer in -<'.barge of the Record Office and were thereafter forwarded to the Chief Electoral Officer concerned in whose office the statements were sorted out according to the constituency and thereafter forwarded to the Electoral Registration Officer concerned.\n\nWe agree with the reasons and conclusion of the High Court that the decision of the statutory authority which acted on the declara tions submitted by the service. personnel verified and found to be correct was beyond any challenge on the materials on record.\n\nThe contentions on behalf of the appellant were that of the 348 service electors 37 were not Indian citizens, 35 of them being Nepa.ti and 2 Sikkimese and further that out of the remaining service .electors excepting 69 the rest were not Indian citizens. lbese 'fere the allegations of the appellant in the particulars furnilihed by him in an application dated 4 October, 1969.\n\nThe appellant in his evidence stated that he was not clear whether the service electors were citizens of India or foreigners.\n\nIt was also his evidence that when he asked the Record Officer at Shillong he learnt that many of the service personnel were not\n\nIndian citizens. The evidence of the appellant is not substantive evidence, or any proof of the allegation. Part of it is hearsay and is not corroborated. The other part is not of evidentiary vaAue.\n\nThe appellant relied heavily on the evidence of P. W. 6, Dhrubajyoti Lahiri in proof of the allegation that the majority of the service personnel were not Indian citizens. Lahiri said that\n\nthere was a Long Roll in two volumes which were marked Exhibill 17 and 18. The Long Roll was the register containing the l\"llRidential particulars of the personnel, the date of enrolment. and\n\n61-1 S.C. Indi•/71\n\nSllPREME COURT REPORTS\n\n[1971) SUPP. S.C.R.\n\nother heads of entries, namely, serial number in the book, number of personnel, rank, name, father's name, religion and class or caste, residential particulars giving village, neacest railway station,\n\nPost Office, Tehsil and Thana, District and Province, date of birth, enrolment, discharge, Education. There is no column or heading regarding nationality in the Long Roll. Exhibit 19 which was tendered in evidence was a list in tabular form. Exhibit 19 was prepared by Lahiri. He said that he himself compared it with the Long Roll. Lahiri's evidence was that there was no column in the Long Roll for citizenship. Lahiri's evidence was that the home address of some of these service personnel was Nepal. ln cross-examination, Lahiri said that the service personnel were called Nepali by common parlance.\n\nLahiri also said that the service personnel filled up the forms declaring that they were Indian citizens and Lahiri himself also asked the service personnel about their citizenship. His evidence was that these members of the service personnel were Indian citizens.\n\nIt is in evidence that the Electoral Registration Officer said that he was satisfied about the declarations of the members of the service personnel about their Indian citizenship. The High Court correctly found that in the sta.tements furnished by the service\n\nperonnel being Exhibit 6 series and Exhibit A series, they declared themselves to be citizens of India and the statements were verified by the Record Officer.\n\nThe High Court also correctly held that no objection was taken at any stage and no notice was given to any member of the service personnel that their names would be objected to on the ground thwt they were not Indian citizens and they have not been given any opportunity of being heard in respect of the allegation. No such member of the service personnel was examined. There is no evidence to substantiate the allegation which was made that members of the service personnel were not Indian citizens. On the contrary, the evidence oral as well as documentacy is overwhelming and unrebutted that each member of the service personnel made a statement declaring himself to be an Indian citizen.\n\nThe contentions advanced on behalf of the appellant fail.\n\nThe appeal is dismissed with costs.\n\nK.B.N.\n\nAppeal dismisNd.", "total_entities": 39, "entities": [{"text": "WOPANSAO", "label": "PETITIONER", "start_char": 0, "end_char": 8, "source": "metadata", "metadata": {"canonical_name": "WOPANSAO", "offset_not_found": false}}, {"text": "N. L. ODYUO & ORS", "label": "RESPONDENT", "start_char": 10, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "N. L. ODYUO & ORS", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 49, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "A. N. 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"end_char": 15285, "source": "regex", "metadata": {}}]} {"document_id": "1971_1_963_967_EN", "year": 1971, "text": "DALMIA J'AIN & CO. LTD. v.\n\nCOMMISSIONER OF INCOME-TAX,\n\nBIHAR & ORISSA, PATNA\n\nJuly 29, 1971\n\n[K. S. HEGDE AND A. N. GROVER, JJ.]\n\nIncome Tax-Litigation .expenses-Capital expenditure or Revenue -expenditure-Tests for determining. •\n\nThe appellant-assessee, one of whose business activities was quarry ing limestone, was working a quarry as agent of the government with an understanding that the quarry would be leased out to the assessee if the :government succeeded in the litigation in respect of it. Whtn the assessee\n\nwas in possession, a company instituted a suit against the government for !pecific performance of an agreement to lease the quarry. The assessee was made a party to the suit and a claim for damages was made against the government as well as the assessee. This Court granted a decree for damages and the assessee was also made liable to pay damages. On tl:ie question whether the litigation expenses incurred by the asscssee constituted expenditure laid out wholly and exclusively for the purpose of the .assessee's business or whether it was incurred for the purpose of acquiring a new asset, HELD : (j) Where the expenditure laid out for the acquisition or improvement of a fixed capital asset is attributable to capital, it is capital expenditure but if it is incurred to protect the trade or business of the assessee, it is a revenue expenditure. In deciding whether a particular expenditure is capital or revenue in nature, what the courts have to see is\n\nV.'hether the expenditure in question was incurred to create any new assrt or was incurred for maintaining the business of the company. If it is the former it is capital expenditure; if it is the latter, it is revenue expenditure.\n\n[965A-966B]\n\n(ii) In the present case the expenditure was incurred for the purpose of protecting the assessee's business and, therefore, was revenue expenditure.\n\nThe assessee was dracged into the litigation and a claim for damages was made against the assessee also. The litigation came to be instituted against 'the assessee because the assessee was working the quarry and it was working the same at the time of the litigation. Therefore, the only reasonable inference that could be drawn was that the assessee resisted the suit in order to protect its business and not with a view to safeguarding its pro!lpects of getting a new lease. [9660]\n\nShree Meenakshi Mills Ltd. v. Commissioner of Income-Tax, Madras, (;3 I.T.R. 207, referred to.\n\nOvlL APPELLATE JURISDICilON : Civil Appeal No. 1812 of 1967.\n\nAppeal from the judgment and order dated January 13 1966 of the Patna High Court in Misc. Judicial Case No. 66S ot' 1962.\n\nt63\n\nSUPREME COURT RBPORTS [197IJ SOPP. s.c.R.\n\nA M. C. Chagla and R Gopalakrishnan, for the appellant.\n\nJagadish Swarup, Solicitor-General, B. B. Ahu; a and B. D.\n\nSharma, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nB Hegde J.-This appeal a.rises from the decision of the High Court of Patna in a reference under s. 66(1) of the Indian Income tax Act, 1922 (to be hereinafter referred to as the Act). In that reference several questions of law were referred to the High Court for its opinion. In this appeal we are concerned with only one of those questions and that question is :\n\nC \"Whether on the facts and circumstances of the case\n\nthe Tribunal was justified in holding that litigation expenses of Rs. 1,29,994/· incurred by the assessee for the assessment year 1951-52 constitute expenditure laid out wholly and exclusively for the purpose of the assessee's business\"?\n\nThe relevant facts as found by the tribunal may now be briefly stated. The litigation expenses in question relate to the protracted litigation in respect of Murli Hills. Those Hills were owned by the Sta.le of Bihar. On April I, 1928, the State Government gave a lease of those Hills to Kutchwar Lime Company for 20 years for the purpose of quarrying limestone therein. In the lease deed entered into between the parties, there was a clause preventing the lessee from assigning its rights to a.ny third party without the consent of the lessor.\n\nIn January 1933, Kutchwar Lime Co. went into voluntary liquidation and the liquidators assigned the lease-hold right to Subodh Gopal Bose in September 1933 without the permission of the State Government.\n\nThe assignee took possession of the property on March 9, 1933 but wa6 topped from working the quarry by the Government.\n\nThe Government forfeited the lease of the Kutchwar Lime Company on March 23, 1933 and re-entered into possession. The Government granted a fresh lease of those Hills to Kalyanpur Lime Company for a period of 20 years with effect from April, 1934. On September 24, 1934 the Kutchwar Lime Co. sued the Government for a. declaration that the lease granted to it in 1928 had not been validly forfeited and for an injunction restraining the respondent from granting Murli Hills on lease to anyone else. The suit was decreed by the High Court on February 7, 1936 and the decree was affirmed by the Privy Council on November 19, 1937. The Kalyanpur Lime Co. va.cated the quarry in April 1936 after the Kutchwar Lime Company started contempt proceedings. Kutchwar Lime Company got possession of the Murli Hills and remain ed in possession until the lease expired on March 31, 1948. The\n\nDAI.MIA JAIN & co. I'. c.1.T. (Htgde, J.)\n\nGovernment then re-entered into possession. Thereafter Kalyanpur Lime Comp3!lly repeatedly asked the Government to execute the lease as agreed to by it in 1934. The Government refused to do so and informed the Kalyanpur Lime Company on June 2, 1949 that the Government has decided to lease Murli Hills to the assessee. The Government leased the Murli Hills to the assessee for one year from September 22, 1949 to September 22\n\n1950. Therea.fter the Government appointed the assessee as the agent of the Goverment for working in the quarry with an understanding that the Murli Hills will be leased out to the assessee if the Government succeed in the litigation.\n\nWhen the assessee company was in possession of the Murli Hills as an agent of the Government, the Kalyanpur Lime Company filed a suit for specific performance.\n\nIn the alternative it claimed damages.\n\nIn that suit the Kalyanpur Lime Company impleaded the State of Bihar as well as the assessee as defendants. It is necessary to remember that in that suit a claim for damaoges was also made in the alternative. That suit was resisted by the State Government as well as by the assessee. That suit was dismissed by the High Court. The appeal of the Kalyanpur Lime Company was allowed by this Court and the suit decreed against both the defendants.\n\nBut as by that time the term of the lease agreed upon between the State Government and the Kalyanpur Lime Company had come to an end this Court insteoo of granting a decree for specific performance granted a decree for damages. Under that decree. the asscssee company was also made liable to pay damages-see the decision by this Court in Civil Appeals Nos. 1170 and 1171 of 1965.\n\nFrom the facts stated above, it is clear that Kalyanpur Lime Company claimed damages not only from the State Government but also from the assessee company which in the course of its business was acting as the a.gent of the Government, no doubt with the prospect of getting a lease of the Murli Hills if the Government succeeded in the litigation. In the judgment of this Court it was observed that the assessee had no locus standi to resist the suit of Kalyanpur Lime Company.\n\nThe question for decision is whether the litigation expenses incurred by the assessee were for the purpose of creating, curing or completing the assessee's title to capita-I or whether it was for the purpose of protecting its business. If it is the former then the expenses incurred must be considered as capital expenditure.\n\nBut on the other hand if it is held that the expenses were incurred to protect the business of the assessee then it must be considered as a business loss. The principle which has to be deduced from decided cases is that where the expenditure laid out for the acqui sition or improvement of a fixed capital asset is attributable to\n\n96i\n\ntlH\n\nSUPREME COURT REPORTS (1971] SUPP.s.c.R.\n\ncapital it is capital expenditure but if it is incurred to protect the trade or business of the assesee then it is a• revenue expenditure.\n\nIn deciding whether a particular expenditure is capital or revenue in nature, what the courts have to see is whether the expenditure in question was incurred to create any new asset or was inc, urred for maiintaining the business of the company. If it is the former it is the capital expenditure; if it is the latter, it is the revenue\n\nnditure.\n\nThe Income-tax Officer as well as the Appellate Assistant Commissioner came to the conclusion that the expenditure i11 question was incurred for the purpose of acquiring a new asset.\n\nTheir orders are not cleair as to what is the new asset intended to be acquired by the assessee. Possibly they were of the opinion, as was urged by the learned Solicitor-General on behalf of the Revenue that the expenditure was incurred for securing the assessee's prospect of getting a lease of the Murli Hills if and when the Government suceeded in th.~ litigation. But the appellate tribunal took a different view of the matter. It came to the conclusion that the expenditure in question was incurred to protect the business of the assessee. On the other hand, the High Court agreed with the view taken by the Income-tax Officer and the Appellate Assistant Commissioner.\n\nThe salient facts that could be gathered from the materiol before the tribunal are : (!) one of the business activities of the assessee was to quarry lime stone; (2) the Murli Hills had been leased out by the Government to the assessee for a period of one year from September 22, 1949 to September 22, 1950; (3) Thereafter the assessee was working the quarry in question as the agent of the Government; (4) in the suit filed by the Kalyanpur i, ime Company, the assessee had been made a party; and (5) in that suit a claim for da.mages was mad.e both against the Government a' well as agai'1st the assessee.\n\nWhat has been overlooked by the High Court is that the assessee did not get into the litigation of its own accord. It was dragged into the Jitigaition by the Kalyanpur Lime Co. Further the Kalyanpur Lime Comp3ny had made a claim for damages against the assessee also. This litigation came to be instituted against the assessee because the assessee was working the Murli Hills.\n\nIt was working the same at the time of the litigaition.\n\nFrom these facts, the only reasonable inference that ca•n be drawn is that the assessee resisted the suit in order to protect its business as opined by the tribunal and not with a• view to safeguard its prospects of getting a new lease. At any rate the view taken by the tribunal on the facts before it that the assessee incurred the expenditure in question to protect its business interest cann.Ot be\n\nDALMIA JAIN & co. v. C.l.T. (Hegde, J.)\n\nconsidered as a unreasonable view. As observed by this Court in Shree Meenakshi Mills Ltd. v.\n\nCommissioner of lncomtnr, M 'ldras(') that deductibility of expendi:ure incurred in prosecuting a civil proceeding depends upon the nature and purpose of the legal proceeding.in relation to the assessee's business and the same cannot be &ffected by the final outcome of that proceeding.\n\nHowever wrong-headed, ill-advised, unduly optimistic or overconfident in his conviction the assessee might appear in the light of the ultimate decision, expenditure in starting and prosecuting a civil proceeding cannot be denied as a permissible deduction in computing the taxable income merely because the proceeding had failed, if otherwise the expenditure was laid out for the purpose of the business wholly and exclusively, that is, reasonably and honestly incurred to promote the interest of the business.\n\nPersistence of the assessee in launching the proceeding and carrying it from court to court and incurring expenditure for that purpose is not a ground for disallowing the claim.\n\nIn this case the assessee stands on a better footing. It did not initiate the proceeding. It merely defended the claim made against it. The claim was made against it because it was working the Murli Hills though as an &gent of the Government. Therefore the civil proceedings were launched against it because of\n\non~ of its business activities. Under those circumstances we are of opinion that the High Court was not right in holding that the expel!diture in question was not a revenue expenditure.\n\nFor the reasons mentioned above we revoke the answer given by the High Court to the question referred to it for its opinion and in its place we answer that question in the affirmative and in favour of the assessee. The assessee is entitled to its costs both in this Court as well as in the High Court.\n\nK.B.N.\n\nAppeal allowed.\n\n(I) 63 l.T.R. 207.", "total_entities": 6, "entities": [{"text": "DALMIA J'AIN & CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "DALMIA JAIN & CO. LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX,\n\nBIHAR & ORISSA, PATNA", "label": "RESPONDENT", "start_char": 28, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA, PATNA", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 96, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 112, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 2978, "end_char": 2986, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income tax Act, 1922", "label": "STATUTE", "start_char": 2994, "end_char": 3021, "source": "regex", "metadata": {}}]} {"document_id": "1971_1_968_976_EN", "year": 1971, "text": "A COMMISSIONER OF WEALm TAX, BIHAR AND\n\nORISSA\n\nKIRPASHANKAR DAYASHANKAR WORAH\n\nJuly 29, 1971.\n\n[K. S. HEGDE AND A. N. GROVER, JI.]\n\nWealth Tax A.ct (27 of 1957), s. 21(1} & (4'r-Liability of tnH1ce t• be &rttssed to wealth tax-Scope of s. 21(4).\n\nThe respondent, by means of a trust-deed, transferred certain proper~ ties described in the deed unto himself as a trustee for making pr..>- vision for the maintenance of himself and his wife. for the maintenance. education and marriage expense.s of his unmarried daughters, and for the maintenance and education expenses of his minor sons. For the as~!Wment years 1957 to 1961 the Department assessed the respondent to wealth-tax in respect of the trust properties as a trustee under s. 21 of tho Wealth Tax Act 1957. The respondent contended that: (1) Since, as a trustee he waa only holding the properties for the benefit of the beneficiaries and not uu behalf of the beneficiaries as laid down in the section he was not asses.sable to wealth-tax. and (2) as the share of each of the beneficjarjes was ovt indeterminate, he should not be taxed at the maximum rate.\n\nThe High Court in reference held that respondent Ytas not a.~esabte to wealth tax.\n\nHELD: In appeal to this Court,\n\nS. 21(1) of the Act specifically refers to uustees. The Leaislature i• competent, in the absence of any restrictions placed on it by the Consticution, to give its own meaning to the words used by it in a statute. In tho Wealth Tax Act, Parliament, while enacting s. 21(1) & (2) of the Act, proceeded on the basis that for the purpose of that Acl a trustee is holding the trust property on behalf of beneficiaries. The mere fact that this conception doea not accord with the provisions of the Trust Act doeo not invalidate the section. If the construction contended for on behalf of the respondent is accepted then a part of the section wouid bec:op1e otioi; c.\n\nWhile a taxing provision must be strictly construed by courts and lhe benefit of any ambiguity must to go the assessee, if the intention of the Legislature is clear and beyond doubt then the fact that the provision could have been more artistically drafted cannot be a ground for treating any part of a provision as otiose.\n\n[9738-F]\n\nTherefore a trustee is assessable to wealth tax under the Act even as it then stood.\n\n[975B)\n\nSuhruhini Karuri v. Wealth Tax Officer, 46 I.T.R. 953, and 1'ru, ftes of Gordhandas Govindram Family Charity Trust v. Commissioner of Income-tax, Bombay, 70 l.T.R. 600, approved.\n\nCommissioner of lncometax v. Puthiya Ponamanichiritakam Wakf, 44 I.T.R. 172 (S.C.), Commissioner of Income-tax, v. Kokila Devi, 77 I.T.R..\n\n350 (S.C.), The Commissioner of Income-tax v. Manila Bharti, [1962] Supp. 2 S.C.R. 902 and Commissioner of Income-tax v. Manag; ng Trustees Nagor Durgha, 57 I.T.R. 321 (S.C.), referred to.\n\nWEALTH TAX COM!olR., v. K. D, WOl\\AH (Htgdt, J.)\n\nW.O. Ho/daworth v. State of U.P., 33 I.T.R. 472 (S.C.), explained.\n\n(2) In the present case, on the relevant dates, the settlor as well as his wife were alive and had a right to be maintained out of tho trust properties and they bad also a right of residence in a part of the trust property, and two of the sons of the settlor bad a right to be maintained and educated. Therefore the shares of tho beneficiaries were indeterminate, and hence, the trustee had to be assessed under s. 21(4) of the Act as it then\n\nstood. [97SH; 976ABl\n\nOV!L APPELLATE JURISDICTION : Civil Appeals Nos. 1478 to 1481 of 1967.\n\nAppeals from the judgment and order dated April 13, 1966\n\nof the Patna Court in Misc. Judicial Cases Nos. SS2 to SSS of 1964.\n\nJagadish Swarup Solicitor-General, A. N.\n\nKirpal, B. D.\n\nSharma and R. N. Sachthey, for the appellant (in all the appeals).\n\nM. C. Setalvad, S. K. Mitra and A. K. Nag, for the respondent\n\nin all the appeals).\n\nThe Judgment of the-Court was delivered by\n\nDegele J.-This appeal by certificate arises from the decision of the High Court of Patna in a reference under s. 27(1) of the Wealth Tax Act, 19S7 (which we shall hereafter refer to as the Act). The question of la.w arising for decision in these appeals E is :\n\n\"Whether in the facts and circumstances of the case, the trustee under the Trust deed dated 19th July 1949 executed by Kirpashankar D. Worah was assessable to wealth tax under Section 21 of the Wealth Tax Act ?\"\n\nThe tribunal upheld the contention of the Revenue that the trustee is liable to be proceeded against under s. 21 of the Act but the High Court disagreeing with the view taken by the tribunal answered the question referred to it in the negative. Hence this appeal.\n\nThe facts of the case as set out in the statement of the ca;; e submitted to the High Court may now be briefty stated : The respondent Kirpashanker D. Worah by means of a deed of trust dated July 19, 1949 transferred certain shares described in Schedule 7 of the trust deed and cert&in immovable properties and shares in business described in Schedule 8 of that deed unto him- 1elf as the trus!ee for making provision for the maintenance of himself, his wife, for the maintenance, education and the marriage\n\n970 SUPREME COURT Rl!PORTS [1971] SUPP. s.c.R.\n\nexpenses of his unmarried di; ughters and for the maintenance and education expenses of his minor sons. The main purpose of the trust ;, ,.ot out in paragraph 3 of the objects of the trust. That para.graph reads :\n\n\"To apply the income of the Trust Estate for the maintenance and the joint use and benefit of the Settlor u, nd his wife the said Srimati Kanchan Kunver and also for the maintenance, education and marriage expenses of the said two minor daughters Kumari Kumud Bala and Kumari Jyoti and also for the maintenance and education of the Settlor's minor sons Harsukhari Worah and Chanderakant Worah PROVIDED ALWAYS that if the income of the Trust Estate is insufficient for the purpose of meeting any of the said expenses the Trustee shall have full liberty to dispose of or otherwise apply sufficient portion of the corpus of the Trust Estate for the purpose of discharging the trust contained in this clause.\" ·\n\nD Sub-paragraph 4 of the Trust deed provides that in the event of the Settlor predeceasing his wife, the shares and securities\n\nmntbned in Schedule 7 was to be made over to his wife to be enjoyed by her as her absolute property, provided fhat if the Settler predeceased his wife before the marriages of the two un-\n\nE married daughters had been performed, the trustee was to ret&in out of the shares an~ securities mentioned in the said Schedule sufficient number of shares for the purpose of meeting the marriage expenses of the said two daughters or either of them as the case ma•v be. Sub-paragraph(5) provides that after the marriages of both the daughters and I or after the death of both of such\n\nda11.hters, whiohever happens first and also after the death of the Settlor's wife and the atta'nment of majority of .both the minor sons, the trustee wa~ to hold the Trust Estate for the absolute use a•nd benefit of the two said sons, Harsukhari and Chandrakant. It was further provided that the intention of the Settlor\n\n•f was that subject to the trust thereby created the said two minor sons would take avested interest in the trust estate. Under cl.\n\n(4) of tho sa; d deed provision was made for the residence of the Settlor. his wife and the minor children free of rent in a part of the trust properties described in Schedule 8 until the determination of the trust as aforesaid.\n\nEven before the first valuation date with which we a.-e concerned in these appeals, both the daughters had been married and the two sons had attained majority.\n\nH The reference relates to wealth tax assessment of the assessee for the assessment years 1957-58, 1958-59, 1959-60 and 1960-61, the corresponding vafaation dates being 2-11-1956. 23-11-1957, 11-11-1958 and 31-10-1959.\n\nWBALTH TAX COl>GIR. \\'. K. D. WORAH (Hegde, J.) 9fl'\n\n11he department has assessed the respondent in respect of A the wealth tax due in respect of the trust proper\\ies as a trustee.\n\nThe question for considera.tion is Whether he is liable to, be assessed to wealth tax in respect of the trust properties. The respondent contends \\hat as h: is not )joldingthe trust properties on behalf of tile beneficiaries, he dos not come within the sope of s. 2'1 of the Act and further as the share of the beneficiaries under e the trust is not indeter!Dinate, he cannot be taxed at the maximum -ra.te.\n\nWe shall first take up the_queslion whether the case of the a•sessee comes within the scope of s. 21 (1) of the Act. At the material time s. 21' read thus : /\n\n\"21(1). In the case of the assets chargeable to .tax u:ider this Act which are held by a court of wa.rds or an administrator-general or an official trustee or anv receiver or ma\\}ager or any other persog., by whatever name called, appointl'd under any order of a court to mana•ge property on behalf of another, or any trustee appointed under a trust declared by a duly executed instrument in writing, wh.ether testamenta.ry or otherwise including a trustee under a vaiid deed of wakf, the wealth tax shall be levied upon and recoverable from the court of wards, administrator-general, official trljstee, receiver, man:i.ger or trustee, as the case may be in he like manner and to the same extent as it would be leviable upon and recove- .rable from the person otl whose behaJf the assets arc\n\nheld, and the provisibn of this Act shall apply accordingly.\"\n\nLeaving out the u~necessary words, section 21 to the extent material for our present purpose can be recast thus :\n\nIn the case of the assets chargeable to ta.x under this Act which are held by a trustee appointed under a trust deed by a dul~ executed instrumeqt in writing, whether testamentary o~ otherwise, the wealth tax shall be levied upon a0nd recoverable from the tiustee inthe like manner and to the same extent as it would, be leviable upon .and recoverable from the person on whc5se behalf the assets are held and the provision of tJiis Act shall apply accordingly. .-\n\nIt is plain from the language of s. 21 (1) that a trustee is also brought within its scope. But tha.t section proceeds on the basis that a trustee is holding the trust property on behalf of one or more beneficiaries.\n\nSUPRBMB OOURT RBPORTS (1971] SUPP. s.c.R.\n\nThe High Court has come to !he conclusion and that conclusion is supported by Mr. M. C. Setalvad, learned counsel for the assessee tha.t it is well established that a trustee does not hold the trust property on behalf of the beneficiaries but he holds it only for their benefit.\n\nUnder the Trust Act, ft is indisputable that a trustee is the legal owner of the trust property. He holds the trust property on his own right and not on behalf of someone else though he holds it for the benefit of the beneficiaries The High Court in coming to the conclusion that s. 21(1) is inapplica.ble to the facts of the case heavily relied on the decision of this Court in W. 0. Holdsworth and Ors. v. State of U. P.(1) In that case this Court was considering the scope of s. II(!) of the U.P. Agricultural Income-tax Act, 1948. That section reads:\n\n\"Where any person holds land, from which agricultural income is derived, as a common manager appointed under any law for the time being in force or under any agreement or as receiver, administrator or the like on behalf of persons jointly interested in such la.nd or in the agricultural income derived therefrom the aggregate of the sums payable as agricultural income-tax by each person on the agricultural income derived from such land and received by •him, shall be assessed on .such com mon manager, receiver, administrator or the like, and he shall be deemed to be the assessee in respect of the agri cultural income tax so payable by each such person and shal! be liable to pay the same.\"\n\nIt may be noted tha.t in that provision. there is no reference to trustees.\n\nThat section speaks of \"receiver. administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom\".\n\nWhile interpreting that clause this Court held tha.t a trustee is not a person who can be equated to a receiver or an administrator inasmuch as those persons hold the property on behalf of other persons whereas a trustee is the legal owner of the trust property. In that decision this Court aJso observed that there is a fundamental difference between a property being held on behalf of others and property being held for the benefit of others. In our opinion the ratio of that decision does not bear on the point under consideratien though certain observations found therein may give some assistance to the respondent. Section 11 of the U. P. Agricultural Income-tax Act does not refer to trustees at all whereas s. 21(1) of the Act specifically refers to trustees. It is true that it refers to a trustee as holding a trust property on behalf of other persons.\n\nThe conception that the trustee is holding the trust property oa\n\n(I) 33 I.T.R. 472.\n\nWEALTH TAX COMM!\\,,, K. D. WORAlll (Hegde, J.)\n\nbehalf of others may not be in conformity with the legal position as contemplated by the Trust Act but the legislature is competeat in the absence of any restrictions placed on it by the Constitution to give its own meaning to the words used by it in a statute. There can be hardly any doubt that the parliament while enacting s. 21\n\n(2) of the Act proceeded on the basis that for llb.e purpose of that Act the trustee is holding the trust property on behalf of the beneficiaries.\n\nThe mere fact that this conception does not accord with the provisions of the Trust Act does not invalidate s. 21 (!)\n\nA> seen earlier s. 21 (I) specifically takes in the trustees. It cannot i>e said and it was not said that the parliament had not specificailly brought in the trustee .under s. 21(1).\n\nWhat was urged by Mr.\n\nSetalvad was that though the parlia.ment intended to bring in llhe trustees within the scope of that provision, it failed to achieve its purpose because of the inartistic drafting, inasmuch as the section speaks of ilie \"trustee holding the trust property on behalf of others\". It is frue thait a taxing provision must receive a strict constr11Ction at the hands of the courts and if there is any ambiguity, the benefit of that ambiguity must go to the assessee. But that is not the same thing as saying that a taxing provision should not receive ai reasonable construction. If the intention of the legislature is clear and beyond doubt then the fact that the provision could have been more ; artistically drafted cannot be a ground to treat any part of a provision a6 otiose. If the. construction contended for on behalf of lhe respondent is accepted then a part of s. 21 (I) would become otiose. So long as the intention of the legislature is cleac and beyond doubt, the court's have to carry out that intention. In our opinion the High Court did not\n\ntake a proper -iew of the decision of this Court in Holdworth's case(').\n\nSection 21(1) of the Act is analogous to s. 41(1) of the Income-tax Act, 1922. The only difference between the two sections is diat whereas the former deals with assets, the latter deals with income. Subject to this difference, the two provisions are identically worded. Hence the decisions rendered under s. 41 (!) of the Indian Income-tax Act, 1922 have bearing on the question arising for decision in this case.\n\nIn Commissioner of Income-tax Kera/a and Coimbatore v.\n\nPuthiya Ponamanichintakam Wakf,(') this Court proceeded on the baisis that the income received by a trustee came within the scope of S. 41(1) of the Income-tax Act, 1922. In Commissioner of Income-tax, Calcutta v. Koki/a Devi and Ors.,(') a similar view was taken by this Court.\n\n(1) 33 I.T.R. 472.\n\n(3) 17 J.T.R. 350.\n\n(2) 44 I.T.R. 172.\n\nl'JPRBMB COURT REPORTS [1971] SUPP.s.c.a.\n\nIn The Commissioner of Income-tax, Bombay v. Mantlal\n\nDhanji Bombay,(') this Court again proceeded on the basis that s. 41 applied to the trustees.\n\nIn Commissioner of Income-tax, Madras v. Managing Triuiees, Nagore Durgha,(') this Court was called upon to interpret the scope of s. 41(1).\n\nTherein the question was whether nattamaigars of Nagore Durgha who are considered as trustees in w born the properties of the Durgba vested would come within the scope of s. 41(!) of the Indian Income-tax Act, 1922. This Court answered tha.t question in the affirmative.\n\nTherein also it was contended that as the property is vested in the managing trustee and be received the income in his own right and not on behalf of the beneficiaries though for their benefit, the income in the bands of the managing trustee fell outside the scope of s. 4 l(l) of the Act. Repelling that contention Subba Rao J. (36 be thea was) speaking for the Court, observed :\n\n\"There are two answers to this contention. The doctrine of vesting is not germane to this contention.\n\nIn some of the enumerated persons in the other sub-clau,.. that ita affairs were .at no time durina Ibo previous year controlled by less than 6 persona and ahatee carl'yillJ more than 50% of the totol votin11 JlOWCr were durina the\n\nsame period not held by less than 6 pmons. (9821'-0J ·\n\nSUPREME COURT RLPORTS [1971] SUPP. s.c.R.\n\nA Star Company Ltd. v. Co111mis:sioner of lncon1e-1a.'f (Central) Cah:1tta,\n\nC. A. No. 1204/68 dt. 29·4-70. distinguished.\n\nIndian Steel & Wire Products ltd. l'alculta v. Cv1nmis~'io11er of lncotnetax, West Be..ga/, Ca/c111ta, l.T.R. No. 204 of 1961, referred to.\n\n(ii) An order made by the Income-ta< Officer directing payment of additional super-tax is not an order of assessment within the meaning of s. 34(3) of the Act and to such an order the period of limitation prescribed thereby does not apply. [983A-8]\n\nM. M. Parikh, l.T.O .. Special Inveltigation Circle 'B', Al11nedabad v.\n\nNavanagar Transport and Industries Ltd. & Anr .. 63 l.T.R. 663, followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1344 of 1967.\n\nAppeal from the judgment and order dated November 24, 1966 of the Calcutta High Court in Income-tax Reference No.\n\nD 8.6 of 1962.\n\nV. S. Desai, N. R. Khaitan, B. P. Maheshwariand Krish11ii Sen, for the appellant.\n\nJagadish Swamp, Solicitor-General, S. K. Aiyer and B. D. E Sharma, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGrover, J.-This is an appeal by special leave from a judgment of the Calcutta. High Court in an Income tax Reference.\n\nThe assessee is a limited company incorporated under the erstwhile Gwalior State Companies Act which did not make any distinction between a private company and a public company.\n\nThe paid-up capital of the compooy was Rs. 25,00,000 /- com posed of 25,000 Ordinary shares of Rs. I 00 /- each.\n\nThese 25,000 Ordinary shares were held by 17 share holders in all. It was also common ground that the shares carrying more than 50% of \"1c total voting power were held by less than 6 persons duririg the accounting period.\n\nThe Msessment year was 1955-56 the accounting year being the one ending on March 31, 1955. The total income assessed for the aforesaid year was Rs. 9,54,658 /- on which tax payable amounted to Rs. 4,05,492. The surplus available for distribution of dividend was Rs. 5,49,166/-. No dividend, however, was distributey the Tribunal and the High Court was wheliher the asscssCCJ llad fulfilled the conditions set out in sub-clause (b)(iii) of the Explanation. It wae not found that the affairs of the company were, at any time, during the previous year controlled by less than 6 persons, the number six being arrived at according to the formula\n\nPUNJAB PRODUCE & TRADING co .•. C.J.T. (Grorer J.)\n\nlaid down in sub-clause. The sole finding on which the deci- \"Sion went against the assessee was that shares carrying more than\n\n50 'j, of the total voting power were during the previous year held by less than 6 persons. The argument which has throughout been pressed on. behalf of the assessee is that the word \"or\" which is to be found between the words \"the affairs of the company\" and\n\nth: shares carrying more than ............ \" had been used disjunctively and therefore if either one of the conditions did not exist tho assessee would be entitled to say that the conditions laid down in sub-clause (b)(iii) had been fulfilled. In other words if it was established that the affairs of the assessee were at no time, during the previous year controlled by less than 6 persons it would be a company in which the public were substantially interested even though the shares carrying more than 50 % of the total voting power had been held during the previous year by less than si~ persons. The Tribunal disposed of this contention in the followmg manner :-\n\n\"Sub-clause (iii\\ is divided into two parts; the first part relates to the affairs of the company being controlled by not less 6 persons and the second part relates to holding of shares carrying more than 50% of the total voting power by not less than 6 persons. Both these parts are joined with the main pa.rt of clause (b) by the use of the conjunctive word \"and\" so that the proper construction of the sub-clause (iii) would be as follows :-\n\n(1) If it is not a private company as defined in the Indian Companies Act. 1913 and the affairs of the company were at no time during the previous year controlled by less than six persons ;\n\n(2) If it is not a priva.te company as defined in the Indian Companies Act, 1913 and the shares carrying more than 50% of the total voting power were at no time uch notice may be recovered from the operator as arrears of land revenue.\n\n(2) The tax shall be a first charge on the stage carriage in respect of which it is due as a0lso on its accessories and such stage and the accessories thereof may be attached and sold for the recovery of the tax under the appropriate law relating to the recovery of arrears of land revenue.\"\n\nSection 12 provides for a.n appeal against a notice of demand served under s. 10.\n\nThe scheme of the above provisions apparently is that the operator of a stage carriage has to submit a return in accordance with s. 5 and pay tax into the Government treasury every month as provided by s. 6. No question can arise of any assessment order being made under s. 7 by the Tax Officer where the returns are found to be correct and complete. It is only where either no returns have been submitted or where the return submitted appear to the Tax Officer to be incorrect or incomplete that the Tax Officer has to follow the procedure laid down in s. 7 and determine the tax payable by the operator.\n\nThe High Court wa