BACHAN SINGH & ANR.

UNION OF INDIA & ORS.

March 17, 1972

[S, M. S1KJU, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR B

AND M. H. BEG, JJ.] Alilitary Engineer Service Class I (Recruitment, Promotion, and Seniority Rules) 1951, Rule 3-Recruitment by i'nterview whether re~

cruitmen~ by competition within meaning of ruie--Quoras for promotion and confirmtltion of direct recruits and promotees-Direct \T'tcruits irecruitd whether coui•d_ be confirnted in permanent. posts earlier than pro- . C motees who had been promoted to Class 1 before their recruitment.

The two appellants were promoted in the years 1958 and 1959 respectively to the Military Engineer Service Class I. Some of the respondents were appointed to the said.class I Service.after they had appeared at the competitive examination while the rest were appointed by direct

recruitmnt after having been interviewed by the Union Public Service Commission.

All the r.!spondents were appointed to the service in the . D years 1962, 1963 and 1964. The respondents were confirmed in thir pools before the appellants. The appellants filed writ petitions in the High Court which were dismissed.

Jn appeal before-this Court the appellants contended (i) that .the respondents who we.re directly appointed to class I scrvic~ by interview \Verenot v.ithin the purview of r:cruitment to Class I service by competitive examination under the Military Engineer 9-!rvice Cla<.:s I (Rcruitm.ent Promotion and Seniority) Rules; (ii) that the respondents were recruited to Class I Service by interview and competitive ,.E examination after the appellant had been promoted to Class I Eervice and were therefore not to be confirmed in permanent posts before the appe} ...

Janis.

HELD, (i) The appointments to Class I &rvice by interview were made by the. Government in consultation with the Union Public Service

Commision.

The selection was made by the Union Public Service Commission.

The appointment by competitive eXamination. proved fruit F less.

The country was in a state of emergency.

The appointment and selection by interview was the only course possible. It could not be said that all .appointments should1 have been m'lde by promotion; that would not be in the interest of the service.

The Service Rules were administra .. tive in character. The Government relaxed the rules.

The ameridments of the rules in 1967 recognised the !reality of the situation of apPoint.. ment by interview.

That is why the 1967 amendment recognised that 50% of "the direct recruit:: by competitive ad hoc appointments were to G be reserved for graduate engineers who were commissioned in the Armed Forces on a tmporary basis" Ultimately, when the rules were amended in 1969 and the rules became statutory in character, not only the recruitment by interview but also the relaxation of rules was regularised. The result is that the rt:spondent-: who were appointed by interview fell within the Class I direct recruits. [901 F-902 Al

(ii) The 'lppellants could have no grievance with regard to confirma H tion. Departmental promotees bad heen confirmed against permanent posts '''ithin their quota in order rf s~11iority. The <leoartmental promotecs who had been confirmed up to th•! year 1970 had been promoted to

, Jass I Servrc.::: b;.;.'."v.:e t;:.;;! a.ppel!ants.

On the Other hand direct recruits

con~.isting of those !recruited by competitive examination -'3.S well as by interview had been confirmed against permanent vacancies within their quota.

As a matter oi fact between the years 1959 and 1963 inclusive the quota fixed for departmer.tal promotees was increased from 10 to 50% and tercby corJi.:-rnati.o:i cf dp<1.rtmcntal promotees and direct recruits was equally balanced. [905 D-FJ

Accordingly, the appeal must fail;

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1499 of 1971. .

Appeal from the judgment and order dated August 23, 1971 C of the Delhi High Court in Civil Writ Petition No. 517 of 1971.

M. C. Chag/a and R. Gopalakrishnan, for the appellants.

Jagadish Swarup, Solicitor-General cf India, G. L. Sanghi, B. D. Sharma and S. P. Nayar, for respondents Nos. 1 and 2.

A. K. Sen and H.K. Puri, for respondents Nos. 15, 39 to 4g, D 51, 103 and 123.

J. D. Jain, for respondent No. 55.

The Judgment of the Court was delivered by

Ray, J.

This in an , appeal by certificate from the judgment E dated 23 August, 1971 of the High Court of Delhi dismissing the

writ petitions of the appellants.

The two appellants were promoted in the years 1958 and 1959 respectively to the Military Engineer Service Class I (hereinafter referred to -as the Class I Service).

The appellant No. 1 joined the Military Engineer Service as a temporary overseer on 1 May, 1942.

F He was promoted to the grade of Superintendent Grade I on 1 May, 1949.

In the month of April, 1957 he was selected to be promoted to thegrade of temporary Assistant Executive Engineer in Class I Service and he was promoted in fact in the month of April, 1958.

Respondents Nos. 4 to 21, 107 to 122 and 124 to 126 were G appointed to the said Class I Service after they had appeared at competitive examination while the rest were appointed by direct recruitment after having been interviewed by the Union Public Service Commission.

All the respondents were appointed to the said Class I Service in the years 1962, 1963 and 1964.

H The appellants contended first that the respondents who were directly appointed to Class I Service by interview were not within the purview of recruitment to Class I Service by competitive examination.

The Military Engineer Service Class I (Recruitiilent,

Promotion and Seniority) Rules which came into force on 1 April, A 1951 speak in rule 3 of recruitment to the Class I Service (a) by competitive 11Xamination in accordance with Part II of the Rules and (b) by promotion In accordance with Part III of the Rules.

The appellants conte)lded that appointment to Class I Service by interview was not one of the methods of recruitment contemplated in the Rules, and, therefore, the respondents who were appointed B by interview could not boe said to be validly appointed in accordance with the Rules.

The second contention of the appellants was that the respondents were recruited to Class I Service by interview and competitive examination after t.he appellant had been promoted to Class I Service and were therefore not to be confirmed in permanent posts C before the appellants. •

Class I Rules mention recruitment by competitive examination and by promotion. In 1961 on the results of the competitive examination no candidates were available for allotment to Class I Service against temporary posts.

In 1962 there was a state of emergency.

Engineers were immediately required to fill the temporary posts in Class I Service.

To meet the emergency the Union Government in consultation with the Union Public Service Commission decided to recruit candidates by advertisement and selection by the Union Public Service Commission.

The Government with the aid of selection and interview by the Union Public Service Commission directly recruited some respondents to Class I Service in the years 1962, 1963 and 1964.

The candidates were selected after viva-voce examination.

It, therefore, follows that the method of recruitment b!Y inter' view was adopted to meet the emergency specially when the mode of appointment by competitive examination failed.

The candidates who were selected were iiut through a period of probation of 2 years.

Only on a satisfactory completion of probation the candidates were allowed to continue in service.

On completion of 3 years continued service in the grade and after qualifying the necessary departmental test the respective officers were declared quasipermanent in the grade in terms of Central Civil Service (Temporary Service) Rules.

G During the years 1962, 1963 and 1964 particularly and until the year 1969 the Class I Seniice Rules were not statutory in character.

The Union Government relaxed the Rules both in regard to res:ruitment by interview and in regard to the quotas fixed by the Rules for direct. tcruitment and recruitment by promotion to Class I Service. • In the year 1967 rule- 20 of Part II of Class I Service Rules was amended by introduction of sub-rules (h), (i), (j) and (k)'.

....

Rule 20 referred to the period of probation in the case of recruitment by competitive examination. Sub-rule (i) stated that "50 per cent of thepermanent vacancies to be filled through the competitive ad hoc recruitment conducted by the Commission after 17 May, 1963, shall b~ reserved for graduates engineers who are commissioned in the Armed Forces on a temporary basis during the present emergency and later released," subject to certain conditions enumerated therein.

Rule 24 was also introduced by way of amendment in the year 1967. Rule 24 occurs in Part IV of the Rules.

It may be stated here that Part II of the Rules deals with recruitment to Oass I Service by competitive examination, Part III with recruitment to Class I Service by promotion and Part IV deals with miscellaneous Rules. Rule 24 stated that where the Central Government was of opinion that it was necessary or expedient so to do, it might by order, for reasons to be recorded by it in writing and after consultation with the Union Public Ser\.ice Commission relax all or any of the rules with respect to any class or, category of persons or posts.

In 1969 the Class I Service Rules were amended.

The important amendments were rule 4 and substitution of rule 21 in place of rules 21, 22 and 23.

Rule 4 dealt with the quotas fixed for - direct recruitment and promotion to Class I Service.

The substituted r, ule 21 stated that appointment by promotion was to be made, !:tr selection and promotion was not to be as a matter of right.

The real importance of the amendments of the rules in the year 1969 lies in the fact th_at the amendments were made by the President in exercise of the powers conferred by the proviso to Article 309 of the Constitution. As a result of the 1969 amendment it follows that the entire body ol rules of Class I service became statutory rules by incorporation.

The appointments to Class I Service by iterview were made by the Government in consultation with the Union Public Service Commission.

The selection was made by the Union Public Service Commission.

The appointments by competitive examination proved fruitless.

The country was in a state of emergency.

Appointment and selection by interview was the only course possible. It could not be said that all appointments should have been made by

pomotion. That would be not in the interest of the Service.

The Service Rules were administrative in character. The Government relaxed the rules.

The amendments of the rules in 1967 recognised the reality of the situation of appointment by interview.

That is the 1967 amendment recognised that 50 per cent of "the direct recruits b.Y <'.ompetitive/ ad hoc appointment were to be reserved for

graduate"englhee\'s who were commissioned in the Armed, forces

_. on ternP, O(ary basis." -

on a temporary basis." Ultimately, when the rules were amended A in 1969 and the rules became statutoiy in character not only the recruitment by interview but also the relaxation of rules was regu. larised. The result is that the respondent who were appointed by . interview fell within the class of direct recruits.

The only other contention on behalf oi the appellants was that B they were promoted to Class I Service in the years 1958 and 1959 respectively and were thus senior to the respondents who were recruited to the Service subsequently, and, therfore, the appellants should be confirmed in Class I Service in priority to thi: respondents.

The promotion ofi the appellants was to temporary posts in Class I Service.

The appellants were to be confirmed in perma. c nent posts.

The respondeiits wilo were appointed lfy competitive examination and by interview were also appointed to temporary posts.

They were also to be confirmed in permanent posts after having served the period of probation in accordance with the rules.

The recruitment to Class I Service during the years 1951 to 1958 was on the quotas fixed by rule 4 of the Class I Rules on the rj!tiq 0 of 10 per cent for departmental promotion and 90 per cent fQr.

direct recruitment.

Though rule 4 fixed the quotas on the/ ratio of 10 per cent for departmental promotion and 90 per ce/tt for direct recruitment the Union Government in consultation with the

Union Public Service Commission relaxed the rules and revised as. an interim measure the existing quota oi 10 per cent of departmental candidates for promotion to 50 per cent in the years ! 959 E to 1963 inclusive.

From 1964 to 1968 the quota fixed by rule 4 was followed again.

Fmally, in 1969 the rules were amended and the quota for departmental promotion was 25 per cent and for direct recruitment at 75 per cent.

In this background the recruitmellt against temporary posts F between the years 1951 and 1971 was indicated by a chart prepared by the Government and accepted to be correct.

The recruitment against temporary posts indicated the following features : Between 1951 and 1956 the total recruitme11t against temporary posts was 84 whereof 75 were allocated for direct recruits and 9 for departmental promotees.

But in fact the recruitment by inter- G view was for 29 and by departmental examination.

During the years 1957 and 1963 the number of vacancies for recruitment to temporary posts was 675 whereof 339 were allocated for direct :ecruits and 336 for departmental promotees.

Only 20 were recruited biy competitive examination and 171 by interview and the remaining 484 were instances of departmental promotion. Be- H tween the years 1964 and 1968 the total recruitment was 264 whereof 23 8 were tllocated for direct recruits and 26 for departmenta.l. , Promotees.

In fact, recruitment was of 139 persons by

competitive ellamination and of 98 by interview and 27 by departmental promotion.

Between the years 1969 and 1971 there were 45 vacancies to temporary posts whereof 33 were allocated fordirect recruits and 12 for departmental promotees. 11 were recruited by competitive examination and 34 were promoted departmentally.

The recruitment against temporary posts during the years 1951 and 1971 shows that dnring the relevant years 1959 to 1963 the Union Government relaxed the quota and increased the quota of 10 per cent to 50 per cent for departmental promotion.

It cannottherefore be said that any injustice was done to the departmental promotees or that any advantage was gained by the persons who were recruited by interview.

It is because of the conditions of emergency that the quota' for filling the temporary posts was half for departmental promotees and half for direct recruitment.

The confirmation against permanent posts was also in accordance with the quotas fixed by rule 4 for the years 1951 to 1958, namely, 10 per cent for departmental promotion and 90 per cent D for di_rect recruitment.

During the years 1959 ti> 1963 inclusive the Union Government in consultation with the Union Public Service Commission relaxed the quota rule and increased the quota for departmental promotees from 10 per cent to 50 per cent and reduced the quota of direct recruitment from 90 per cent to 50 per cent.

In the year J 959 126 permanent posts were available £ whereof 63 were allocated for direct recruits and the other 63 were for departmental promotees. In 1960 there were 14 permanent .posts and 7 were allocated for direct recruits and 7 for departmental promotees: Again, in 1961 there were 23 permanent posts available. 12 were allocated for direct recruits and U for departmental promotees.

For 1962 there were 20 permanent posts whereof 10 were allocated for direct recruits and the other 10 for departmental promotees.

In 1963 there were 11 permanent posts whereof 5 were a!located for direct recruits and 6 for departmental promotees.

In 1964 there were 9 permanent posts whereof 8 were allocated for direct recruits and one for departmental promotee. In 1965 there

• were 15 permanent posts whereof 13 were allocated for direct recruits and two for departmental promotees.

In 1966 there were G 113 permanent posts whereof 82 were allocated for direct recruits and 11 for departmental promotees and 20 for released officers in accordance with the revised rule in the year 1967. ln 1967 there were 45 permanent posts whereof 40 were allocated for direct recruits and 5 for departmental promotees.

In 1968 there were 14 permanent posts available whereof 13 were albcated for direct H recruits and one for departmental promotee.

The position with regard to filling of permanent posts shows that during the years 1951 to 1958 the quota was 10 per cent-for

904 SUPREME COURT Jµ!PORTS [1972] 3 s.c.R.

departmental promotees and 90 percent for direct recruitment but during the years 1959 to 1963 the quota was changed with the result that half of the permanent posts were filled by. departmental promotion allld the other half by direct recruitment. From 1964 to 1968 the old quota of 10 per cent for departmi:ntal promotion and the remaining 90 per cent for direct recruitment was resorted to. In 1969 rule 4 was changed with the result that there were 25 per cent for departmental promotion and the remaining 7 5 per cent for direct recruitment.

In the year 1959 the direct recruits who were confirmed in permanent posts were recruited by the Union .

P.ublic Service Commission by interview during the years 1951 to

1956. In 1960 the direct recruits through interview who were . confirmed had been selected through interview by the Union Public Service Commission betwen the years 1953 and 1956. In 1961 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1957. In 1962 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1958.

In 1963 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview between the 'years.1958 to 1961. In 1964

the direct recruits who were confirmed in permanent posts were those recruited in 1962 by the Unfon Ptiblic Service Commission through interview. In 1965 the direct recruits 'who were confirmed in permanent posts were those recruited by the Uniqn Public Serviee Conimission through interview in 1962 and 1963.

In 1965 13 direct recruits were confirmed and they included s.ome of the respondents.

In 1966 82 direct recruits were confirmed against permanent posts and they were persons who had been selected by the Union Public Service Commission throu, gh interview during the F year 1963 and they included some of the respondent!i.

In the year 1959 when the Government in consultation with the Union Public Service Commission revised as an interim measure the increase of the quota of departmental promotion of candidates from 1 O to 50 per cent and followed that system .up to the end of 1963 a question arose as to how the then existing permanent vacan- G cies were to be filled and the Union Public Service Commission advised that the same might be filled by confirmation of direct recruits, namely, those recruited on the basis of competitive xami nation and by advertisement and selection ood promotees m the ratio of 1 : 1.

The advice of the Union Public Service Commissioi; i was...Jlccepted and the Departmental Promotion Committee R actcid, oii that bijSjs.

It is .apparent that during those years there was a relaxaiin: in the observance of rules in the case of appellants , and the ether departmental promotees. The Union Government

A. all throughout acted in consultation with the Union Public Service

Commission.

The departmental promotees gained considerable advantage by relaxation of the rules. The direct recruits were not shown any preference at all.

The proportion of confirmation of departmental promotees and of direct recruits by interview was. 1 : 1.

B In. the year 1967, the Government was again faced with the question of confirmation of direct recruits by interview as well as by competitive examination against permanent vacancies in the grade falling in the direct recruitment quota prescribed in the rules.

The Union Public Service Commission advised that direct recruits c by interview and by competitive examination could be confirmed against permanent vacancies within the fixed quota of direct recruits.

The result was that in 1969 the Class I Service Rules were amended aind the quota for departmental promotion was raised from 10 to 25 per cent and the quota of direct recruits was reduced from 90 to 7 5 per cent.

D The appellants can have no grievance with regard to confirm&· tion.

The departmental promotees have l:leen confirmed against permllJlent posts within their quota in order of seniority. Departmental promoteeS who have been confirmed up to. the year 1970

had been promoted to Class I Service before the appellants.

On the other hand, direct recriuts consisting of those recruited by com-.

• E petitive examination as well as by interview have been confirmed against permanent vacancies within their quota.

As a matter of fact between the years 1959 and 1963 inclusive the quota fixed for departmental promotees was increased from 10 to 50 per cent and thereby the confirmation of departmental promotees and direct recruits was equally balanced.

F The direct recruits who were appointed by interview fell within the class of direct recruits. The quota fixed for direct recruits was never infringed by absorbing direct recruits by interview beyond the quota. The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed.

By reason of relaxation of rules in regard to increase G ol quota for departmental promotees they gained advantage durin~

the years 1959 to 1963 when because of the emergency direct recruits by interview were selected by the Union Public Service Commission.

For the foregoing reasons the appeal fails and is dismissed. In view of the fact that there wa5 no order as to costs in the High Court parties will bear their own costs.

G.C.

Appeal dismissed.

BACHAN SINGH & ANR

UNION OF INDIA & ORS

March 17, 1972

A. N. GROVER

A. N. RAY

D. G. PALEKAR

M. H. BEG, JJ.

Union Public Service Commission

CIVIL APPELLATE JURISDICTION

R. Gopalakrishnan

Jagadish Swarup

G. L. Sanghi

B. D. Sharma

S. P. Nayar

A. K. Sen

H.K. Puri

J. D. Jain

Ray

Class I Rules

Part II of Class I Service Rules

17 May, 1963

Part IV of the Rules

Central Government

Union Public Ser\.ice Commission

Article 309

Unfon Ptiblic Service Commission

Uniqn Public Serviee Conimission

Union Public Service Commissioi


CHHAJULAL

THE STATE OF RAJASTHAN March 17, 1972

[A. N. GROVER AND M. H. BEG, JJ.]

Indian Penal Code (Act 45 of 1860), ss. 65 and 406 and Code of Criminal Procedure (Act 5 of 1898), ss. 32 and 33-Sentence in 'default of payment of fine-Powers of Firt Class Magistr(ue.

The appellant was convk'ted by a first class Magistrate under s. 406, I.P.C., and was sentenced to tvlo ye3fs regorous imprhonment, a fine

C • of Rs. 2000/ - ahd, in default to one year's further rigorous imprisonment.

On the question of the priod of imprisonment that could be imposed in d, efault of. payment of fine.

HELD : Even if s. 65, l.P.C., could be applied the period of imprisonment in default of payn1ent of fine could not exceed nine months since an offence under ~. 406 I.P.C. is punishable with imprisonment up to th!ree years. But reading ss. 32 and 33, Cr. P.C. together the Mgis trate could not have awarded more than six months imprisonment in default of payment of fim. The terms s. 33 Cr. P.C. and s. 65 I.P.C., must therefore be harmonised.

H'!nce it must be held that while a Magistrate's power are specifically limited by section 33 Cr. P.C.· they must also be exercised so as not to contravene s. 65 I. P. C. (908 D-Gl

TherefOire, just as a First Class Magisrate trying an offence punishable under s. 406 I.P.C., cannot impose the maximum sentence of imprisonment prescribed by tte section, because his powers of awalrding imprisonment are pecifk13lly limit.ed .. to a term not exceeding two years by s. 32, Cr. P.C. so also he cannot. by resorting to s. 65 I.P.C., award a period oJ imp:rbonment in default of payment of fine, OJ! the erroll!Ous assumption tht he has the noWer to award the maximum sentence prescribed bys. 406 l.P.C. (908 G-H; 909 Al

Hence, the sentence of imprisonment in default of fine cannot exceed six months.

Reg v. Muhammad Sahib, I.L.R. 1 Mad. 277 (F.B.); Queen-- Empress v. Venkatesagadu, I.L.R. 10 Mad. 165 and E1npress of India v.

Darba, I.L.R. I All. 461, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 117 of 1971.

Appeal by Special Leave from the Order dated February 11 1971 of the Rajasthan High Court in S.B. Criminal Misc. Application No. 152 of 1971.

Sobhag Mal lain, for the appellant.

K. Baldev Mehta, for the respondent.

CllliA.JU LAL v. RA.JASTHAN (Beg, I.) 907

A The Judgment of the Court was delivered by

Beg, J. The appellant was convicted under Section 406 Indian Penal Code and sentenced to six month's rig01'()Us imprisonment and a fine of Rs. 500/-, and, in default of payment of fine, to . three months further rigorous impriSonment, by the Munsif B Magistrate'of Karoli, District Bharatpur, Ra, iasthan. On an appeal by him to the Court of Sessions, his conviction was set aside,' but the Trial Court was directed to pr9ceed with the case afresh from the stage at which the appellant should have been properly examined under Section 342 Criminal Procedure Code. The appellant was 1hen given a full opportunity, under Section 342 C Criminal Procedur~ Code, to explain the facts and circumstances appearing against him in the case. Thereafter, he also produced five witnesses in defence. He was, however, convicted again and sentenced to two .years rigorous imprisonment and to pay fine of Rs. 2,0001-, and, in default to undergo one year's further rigorous imprisonment.

The appellant again appealed to the Court of Sessions which dismissed his appeal.

The appellant then filed a D Revision application which was dismissed summarily by the High Court of Rajasthan. Soon after that, the appellant made another attempt to invoke the inherent jurisdiction of the High Court, by applying under Sec. 561A Criminal Procedure Code, to get at least an illegality in the sentence. corrected, but this also failed.

A prayer for a certificate of fitness of the case to appeal to this E Court was also rejected by the High Court: The appellant then applied under Art. 136 of the Constitution to this Court. That application was admit1ted only on the question of the period of imprisonment awarded in default of payment of fine.

It is this question only which has been argued before us.

 Section 33 of the Criminal Procedure Code runs as follows :

"33(1) The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as it authorised by law in case of such default :

Provided that-

( a) the term is not in excess of the Magistrate's powers under this Code;

(b) in any case decided by a Magistrate where imprisonmell't has been awarded as part of the substantive sentence, the period of imprisonment awarded in default of payment of the fine shall not exceed one-fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than. a~ hnprisonment' in default of payment of the. fine.

SUPREME COURT REPORTS

(1972] 3 S, C.R.·

(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 32''. ·

The Munsif Magistrate who convicted the appellant had the powers of a MagiSltrate J st Class which are restricted, by Section B 32, sub.s(i) (a), to imposing imprisonment for a term not exceed

ing two years and fine not. exceeding Rs. 2,000/-. R<:ading Section 32 and 33 togefuer, it was clear that, in the case before us, the Munsif Magistrate could not aw.ard more than six months imprisonment in default .of payment of fine.

In answer to the appellant's contention, based on Section 33 of l(he Criminal Procedure Code, learned Co=! for the State of Rajallthan placed Section 65 Indian Penal Code beofre us. This Section reads as follows :

"65. The term for which the Court directs the

o!j'ender to be imprisoned in default of payment of a fine D .shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the olfe.nce be punishable with finprisonment as well as 'fine".

It will be seen that even where Section 65 Indian Penal Code is applied by a Coun the term of hnprisi>nment in default of pay- E ment of fine cannot exceed one fourth of the term of imprisonment which is the maximum period which can be awarded for an offence of which an accused is convicted. An offence under Seotion 406 Indian Penal Code is punishable with imprisot which can extend t<J' only three years rigorous imprisonment and a fine. Thus, even if Section 65 Indian Penal Code could be applied, the period F of imprisonment in default of payment of fine could not exceed nine months.

It is clear that Section 65 only fixes a maximum period of imprisonment which can be awarded for default of payment of fine whenever any court convicts.

On the other hand, Section 33 Criminal Procedure Code governs specifically the powers of 1st Class G Magistrates on this matter. Section 33 Criminal Procedure Code also contains the principle embodied in Section 65 Indian Penal Code in its application to Magistrates. J.ust as a 1st Class Magistrate trying an offence punishable under. Seotion 406 Indian Penal Code cannor'impose the maximum amount of imprisonment prescribed by this Section, because his powers of awarding imprison II .i1ent are specifically limited to those conferred to Section 32 Criminal Procedure Code, so also he cannot, by resorting .to Section 65 lnrlian Penal C"!e, award a period of imprisonment in

CRHAJULAL V. RAJASTRAN (Beg, /,) 909

A default of payment of fine on the erroneous .assumption that he

has the power to award the maximum sentence prescribed by Sec tion 406 Indian Penal Code.

Section 6S of the Indian Ponal Code was enacted in 1860.

In 1872 Section 309 of the Criminal Procedure Code 1872 en B acted : "where a person ia scntenc.ed to fine only the Magistrate may award such terms of imprisonment in default of payment of fine as is allowed by law proVided' that the amount does not exceed the Magistrate's powers under this AcC'.

It was held in Reg. v. Muhammad Saib('), that Section 309 of the Code of 1972 over-ruled the provisions of Section 65 C Indian Penal Code.

OIJ a parity of reasoning, Section 3 3 of the Criminal Procedure Code of 1898, with which we axe concerned

here, would over-ride Section 65 Indian Penal Code, or, to be more accurate, apply more specifically to Magistrates.

In Queen-Empress v. Venkatesagadu & Ors.('), it was held D that Section 33 of the Criminal Procedure Code of 1882 did not authorise a Map; istrate to pass sentence in default of payment of fine in excess of the term prescribed by Section 65 Indian Penal Code. Here, reliance was placed upon a decision of Full Bench ofthe Allahabad High Court in the Empress of India v. Dtirba & Ors.(8).

E No case has been cited before us in which an attempt was made to justify an order o{ a Magistrate, whose jurisdiction to punish is limited by Section 33 Criminal Procedure Code, by applying .section 65 Indian Penal Code. It is obvious that the two Sections

must be hannonised. This means that, while a Magistrate's powers are specifrcally limited by Section 3 3 Criminal Procedure r Code; they must also be so exercised as not to contravene Section

65 Indian Penal Code.

As the t.ence of one year's rip; orous imprisonment in default of payment of fine passed by the Munsif Magistrate was in excess of his powers, we allow this appeal to the extent that we reduce only the sentence of one year's rigorous imprisonment awarded in G default of payment of fine to six months rigorous imprisonment.

The rest of the sentence, which is quite legal, must stand. We may observe here that it would have been better if llhis obvious illeality and exces8 of POwet could have been corrected by the High Court when the matter was brought to its notice by means of an aPJlli cation under .Section 56IA Criminal Procedure Code.

V.P; S;

(I) l.LK 1. Mad. 277 (FB).

(2) I.LR. 10 Mad. loS.

(3) l.L.R: I All. 461 12-L!C61 Su~./72

CHHAJULAL

THE STATE OF RAJASTHAN

March 17, 1972

A. N. GROVER

M. H. BEG, JJ.

Indian Penal Code

ss. 65 and 406

Code of Criminal Procedure

ss. 32 and 33

s. 406

I.P.C

s. 65

I.P.C

ss. 32 and 33

s. 33

s. 65

I.P.C

section 33

s. 65

s. 406

I.P.C

s. 32

s. 65

I.P.C

Sobhag Mal lain

K. Baldev Mehta

Beg

Section 406

Indian Penal Code

Section 342

Criminal Procedure Code

Section 342

High Court of Rajasthan

Sec. 561A

Criminal Procedure Code

Art. 136

Section 33

Section 32

Section 32 and 33

Section 33

Criminal Procedure Code

Section 65

Indian Penal Code

Section 65

Indian Penal Code

Indian Penal Code

Section 65

Indian Penal Code

Section 65

Section 33

Criminal Procedure Code

Section 33

Criminal Procedure Code

Section 65

Indian Penal Code

Indian Penal Code

Section 32

Criminal Procedure Code

Section 65

CRHAJULAL V. RAJASTRAN

Indian Penal Code

Section 6S

Section 309

Criminal Procedure Code 1872

Section 309

Section 65

Indian Penal Code

Section 3

Section 65

Indian Penal Code

Section 33

Section 65

Indian Penal Code

Allahabad High Court

Section 33

Criminal Procedure Code

section 65

Indian Penal Code

Section 3

Criminal Procedure r Code

Section

65

Indian Penal Code

Section 56I


BIJLI COTTON MILLS (P) LTD.

THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL . .II & .

ORS.

March 20, 1972

[C. A. VAIDIALINGAM AND I. D. DUA, JJ,]

U.P.

IndustriaA Establishments (National) Holidays Act, 1961- No provision for payment of wages for festival holidays-Wherher pco- :c.ble in the .facts and circumstances o0f the case.

An industrial dispute arose between the appellant and its workmen as to whether the employers were required tC' pay wages for the festival hOlidays allowed to their workmen in a yeJr.

The appellant contested the workmen's claim mainly on the ground> that neitmr in law nor in

-pracicc was there any provision for festival holidays with wages, that the appell-ant was already paying wages for three holidays allowed to the workmen undo:T the U.P. Jndustrial Establishnt (National Holidayll)

Act, 1961 and that in the entire region in which this mill is situated, no textile mill pays wages for festival holidays. The mill was stated to be an uneconomic unit and, therefore, not in a position to be-ar an extra burden. The workmen, on the other hand, in their separate written statements, filed through three Unions, pleadd that the grant of holidays without wages was illegal and against social justice. In their rejoinder the 'lPPellant pleaded that the holidays mentioned by the Unions were granted because the workmen had demanded the same and thosr~ holidays were substituted by other days in lieu of holidays and as they were paid

for the days on which tht.!y worked on account .of those holidays there

.w~ no loss of wages caused to them.

The Tribunal by its award m'3de the appellant liable to pay to their daily-rated and piece-rated workmen for 17 festival holidays, besides three national holidays, plus arrears, on the ground that too Seci'etary of the appellant mill 'ldmitted that the festival holidays were paid holidays in the sense that workers were allowed to work on their unpaid l'.!st days in substitution of the said festival holidays.

The appellant being aggrieved by the award presented a writ pr.!tition before the High Court which was dismissed by a single Judge.

Special le:1ve to a Divisional Bench of the.'.High Court was di.smissed in limirre, but the Bench cm'tified tm case to be fit for appeal to this Court. The appellant was held oatitled to

crrifitate either under cl. (a) or cl. '(b) of Art. 133(1) of the. Consti tution on the ground that value 9f the subject matter of dispute or claim was Rs. 20,000 or more. .

Tbe respondent in the Supreme Court objec.,~ t() the competence of the c'ertiflcate en the ground that .. though the judgment of the Diision Bench was one of affirmance the certificate did not disclose on. its face the existence of any substantial question . of Jaw.

This objection was upheld but as the case was considered fit for_ .U special leave, on oral !'.!quest special le-:1ve was grap.ted on the condition that. theappellallt :"old file a form~ I application for special leave accom-· pamed by an appl!cati, on for condemn g the delay. ·

BIJLI COTTON MILLS v. INDUSTRIAL TRfBUNAL (Dua, J.) .911

/ AllowiJli the: app¢al 'Oil the merits,

. HELD : -By reading the statem:nt of the Secretary of the appellant along with the pleadings as disclosed in the respective statement of cases of: the parucs, it is JiQt .potsible to hold tt te . appelJ.ant . d .admitted that the 17 festival holidays were hei11g given by them as paid holidays dispensing with the enquiry into the question referred for adjustment to the Industrial Tribunal. Even the workl'llen did not plead that the festi val holidays were treated as p:1id holidays.

The Secretary'~ statemel)t that . no festival holidays were paid in tl12 sense , that the workers were allowed to work on unpaid rest days in substitution of the said festival holidays. This staterrunt c!C'lrty ex plains that sense in which the Secretary meant to say that the festival holidays . were paid. The facts contained in the explanation lead to the onlY conclusion Jht fr:stival holidays are not paid as the festival holidays are. This statement read with the detailed explanation could not logically serve as a sround for ignoring the unequivocal denial in the written' statement. The Industrial Tribunal;· was therefore,. wrong in holding that the statement made by the Secretary was 'an admission on behalf of the appel !ant. The learned single Judge also missed the real point and held that the- Secretary's. statement constituted an admission and all :facts evidence was therefore, excluded. The Division Bench fell into the-same error in summarily ismissina .. the appeal in limin~. l920 A-El

( ii) The., U .P. Industrial EstabJishmeill s (National Holidays) Act, 1961 and' rules provide for p:1id National Holidays bul that Act dos not deal .with festival hqlidays.

In determining the .number of paid festival holidays per year, certam facts, like custom; practice and uniformity in .the 'industry without prejudicially affeeting efficiency and incased pi'oduC:tion are some of the relevant hctors to be taken into account. The question affects national economy and does not remain confiR.!d only to the. establishment concerned but has its impact on other concerns as weU.

TJ'lis _aspect _has bee)l completely ignored by tb~ Industrial Tribunal. Fur ther the Tribunal proceeded solely on the basis of misreading of the Secretary's stteinent. 'thereby ignoring the plea taken by. he appellant. There is, thus the manifest error of Jaw apparent on .the fact of the record which bas. resulted. in grave failure of justice, because evidence on tlronly ml\tet'ia_l.P.Pint wasillegally s.hut out. [921 AI ·

The Diitlict Board (afterwordr_' Zila _Paris.had' Allah(.•bad \t : Syed Tcdrir Husain & Ors. C.A. Ne>. 578 of 1963 decided on July 23. l ()65, followed.

SIM Dur!(ri Prasad & •! ' r ' . Tlrt• Ba . ., aras Bank Ltd., [1964] 1 S.C; R.

475. r:de'rred to.

CIVIL APPELLATE JURISDICTION : Civil. Appeal No. 1611 Qf 1968:

H Appeal from the judgment and order dat~ Decem\jer 5, 19~6

ofthe Allahalta~· High.Counin Special Appeal No. 760 of .1966

andPetition for Special t.eave to appe<:d ·(civil) No. 676 of. 1972.

912 S.UPRIME COURT R.EfOi, TS'

(1972] 3 S.C.R.

Y. M. Tarkunde, J, P. Goyal and SDbfla~ Mal Jain, fOr the A appellant.

E. C. Agarwala and A. T. M. Sampat, for respondent No.2.

 The Ju4i!nen't of the Court was delivered by Dua, J~ The following dispute between Mls. Bijli Cotton Mills B (P) Ltd.~ and their workmen was referred o. the Industrial Tribu- nal II, U.P . .fpr adiudication :

"Should the employers be required to pay wages for the festival holidays allowed to their workmen in a year ? Jf so, from which date and wi!fu what other details?

 Accordin~ to the workmen the employers had been givin~ 17 fe9tival holidays to their workmen in a year and though those

holiays should have been paid ones the employers were not .mak

in~ anv payment..

The disput~ was ori.1dnally espoused at the instance of Hathras Mazdoor Panchayat but later three other unions namely Sooti Mi11 Mazdoor Pancbayat, Congress Mazdoor Sangh and Suti MUl

Kannachari Sangh were also acconied right of represen1a1ion on their applications. The employer mills coJ.lltested the claim . on various grounds. The olea on the merits in substance was to the effect that neither in law nor in practice was there any provisiou,

fot: feslival holidays with waes. The Mill, it was averred, was

al.rady paying wages for three holidays allowed to the workmen

u-nder the U.P: Industrial Establishments (National Holjdays) Act

(U, P. Act XVUI of 1961) and in the entire Agra region in which this Mill is situar..d to textile mill pays wages for festival holiys. l't was added that the Mill was an uneconomic unit and was ni;)i in ll. position to bear anv extra burden. The Congress Maz door Sangh, the Sooti MilL Kaqn.achari . Sl}ngh and the Hthr.as

Mazdoor Panchavat filed separate written statements on behalf of tho wqdanen and. plded thaJ.t tbe grant of holidays without wages was illegal and aJ!, ainst social iustice.

'The employer Mill filed rejoinder statement to 1the written statements of all the Unions, pleadine: that the holidays mentioned by the Unions were not allowed to the workmen at the employer's initiative but were granted because the workmen demanded the same and these holidays w.e~ suituted: bY. or ays in lie.u of holidays, and as they were paid for the days on which they workec\ on account of these holidays there was no loss of wages caused

to~ th~. workmen~

 On, Ju}v. lS, 196.5 the. parties made theit statemontg, under r. 12of the UP. Industrial Disputes Rules, 1.957, which-l)rovides

BIJLI COtTON MILLS V. INDUSTRIAL TIUBUMAL (Dua, J.) Sl ~

A [or procede a:t first. sittings of the f'ribunal requiring the parties ·

to state the1r resphve ces. Shrt M. P. Jaiswal, on behal~ of the employers adnutted that the company gives 17 feStival holidays to all its employees, 15 of which ar~ those mentioned in the written statement. of the Congress Mazd<?or Sangh and two others being Sankrantt -and Baldev Chat observed on Bhadon Sukla Chnt. - All B - these holioays were stated by him to be paid holidays in 1he sense that the workers were allowed to work on their unpaid rest days in substitution of the said festival holidays. The unpaid rest days were the same as those provided and observed under s. 52 of the Factories Act as unpaid holidays. It was admitted that tM monthly raters were .Qald for 365 days in a year whereas piece-raters were c paid accordin2 to the quantum of work done by them on working days in a month. Tile national holidays given by the employer are not substituted on any rest day and if any national holiday falls on a rest day the employer pays s.in~~ day's waes if no work i->

done. If a holiday is substituted on rest day then only one day's

wacs are paid.

After this statemen1 four representatives of the contesting unions stated that v.henever the management takes work from the workers on a test day only one day's wages are paid and it was .zmphaticallv denied that holidays were substituted on a rest day.

Monthly raters, accordin~ to these representatives, f/; Ct their wages

for all 365 days. - After these statements the Presidio~ Officer f '!he Tribunll put the (ollowin~ question to Shri Jai$wal : Q : Whether the festival holidays observed in the Mill are paid or unpaid ?

A : They are paid holidys and payment is made by substitution ns ~1ated earlier.

Thereafter it appears that the workmen did not kad any evi~nc_e but Shri M.P. Jaiswat, Secretary of the Mil!.s appeare~ a,; a w•ncs

on behalf of 1M employer. He fikd two charts sbowtn~ the etl

al holidays observed in he Mills in the year 19~ and upto 0 lJ

1965. He proved these cb:uts stating that they had en pteparr from the Mills' Muster Rolls and that they were true coptes c J f th M.ills These two charts rectly prepared from the Jccor s 0 •2 ~When~ 'the wiss tried to were m.-uked ai Ex. ~- 1 an~ Ex. E, T til Mills the , ques d_(puse 21bo"( the hohdayi_.Jn. lh¢ Kanp~!-f_ e.x. \ B. D. Sethi, tlon_ was qisa1Jowed, 'Yt'h!le, cross-~ .n1nt~~ by .S n .

E~-£-1 o-n behalf of t~ work:motr. 'Mr. Jrusw!lt st.!:ted -~ F ·· cy'-23 only two bolkil..ys for Ho~ u• substituted. onc.0!' w~ot be~

~ ~~ and the other on Mar4 L, 9~ .. tb_c ~olida~ v.-crc m~ substilR~ •. lAthe ca.sc (lf_ Otwali eho two J• -

l l 1 I

SUPREME COURT REPORTS [1972]'3 s.t.R.

substituted leaving unsubStituted the remaining. two holidays. 0~ beingcr<JSs-examinedby Shri 0. P. Gautam also on behalf of the.

workn1ert the. witness. stated that in 1965 as well only two holidays on. account of Holi were substituted, the remaining two being lin substituted. In the preceding years also the position was stated to be 1he same in regard to Holf holidays.

The followin)!; two auestions and answers may also be reproduced :

Q -: When you .take work on Sunday which is weekly holiday on which date you ' give the festival hQliday? · A: As such we do not give the weeklyrest day on the day on which the festival falls within the limits . allowed under the Factories Act.

Q : Is there any limit for festival holidays in Factories Act?

A : There is no such limit nor any such direction in the Factories Act. For substitution there is a restriction in Sections 51 and 52 of the Factories Act.

Exhibi'ts E-1 and E-2 show festival holidays for h.; l years 1964 and 1965 and these charts corroborate the answers elicited from Shri Jaiswal that for Holi and Diwali only two days on which substitution was allowed were paid for, the remaining two holidays bein, g unpaid.

It may b.~ pointed out that •the Tribunal: after the statements of the parties under r. 12, framed the following issue :

"Whether the festival holidays are given to the work .. men in the form of substituted holidays on weekly rest days ? If so are 'lhe workmen other than the m~>nthly raters entitled to only om~ day's wages or two days' wages . i.e., one day's wages for the work done on the week\Y . rest day and one day's wages for the substituted holiday?"

. It appears that the language of his Issue was not objected to by either party and this appears to be the real crux of the controversy which emerd after the statements of rthe parties requiring decision by <the TribunaL It was not disputed before the Tribunal that the employers had been giving, 17 festival holidays to all the 'workmen besides three national holidays. The plea taken by the employers. in their pleadings that the holidays are not paid holidays Was in the· opinion of. the Tribunal ven the )tO-by fu he-

BI, JLI COTTON MILLS V, INDUSTRIAL TRIBUN (0

' AL ua, I.) 9 15

A - tatement of Shri Jaiswal recorded under r 12 0 1 1 lS The Tribunal ten dealt with that statement. and oc~:d tht 1:·

ththat&sta!em 1 ehnt 1 dt was fr the mployers to show how payment fo~ e 1esuva o 1 ay~ was made by thenr. To reproduce the . ds

of the award . \lor

."In 'the. written statement without statin_g whether the fcs.uval .holidays w.ere pai~ or unpaid they pleaded that nett.her m lw nor J? pracUce there was any provision for festtyal ·.holiday~ wttt wages an? that in the eniire Agra Re, IUon no textile mtll was paymg wa, ges for the festival holidays. Originally it appeared that the employers wanted to set up that the festival holidays were unpaid

but at the time of the statement under rule 12, Shri Jaiswal took a contrary po6ruon and stated that all the festival holidays wer;: paid holidays R11d tho payment was made in the sense that they were substituted on rt days.

I have already shown how this statement is incorrect and no impanial mind will be wrong in drawing a legitimate inference that the purpose. f tb.e empl?yers in settin~ up inconsistent pleas or in glVIDl! m-consJStent

statemms was only to conceal the truth or it may be thlt the purpose was to confuse. the issue."

A little lower down, after observin~ that Shri Jaiswal w~ not the kind of witness who would rive straight answers to. stra1~M quc!Stions and that the witness had to be warned for this altitude observed :

"From the employers own ple3dings th~ st~!e':~~~ Shri Jaiswal recorded unda ruh: 1~ and~ 'd P th~ it is evident that 17 fe51ivul h?hdays 51 es lo ers National Holiday~ ore nil P.ai.d holhldys ~~~~ner their

had been wrongfully depnVJng t ctr w dues in this behalf." b- . e f monthly raters o 1be Tribunal, while denlin, g wsth the cas

1~ f because they \\ere served that they' were not entitled to the re tese of daily rate~ or P&ld for all the 36.5 days in 8 year. Th: ~cording to ihe nompice¢ raters beinst different (they were ptd uantum of worlc theY ber of days on which they WC!rked orf 1 t Ql holidays with wa,~:e~. turned out) they were held entttlcd to. es

1~ 0 yment on the basts DaUy r111e~ were accordinRIY beld entitled 0 P held entitled to llet or tht:i,(. d:.ily waj!e whereas piece mterstets of the 8\'"erJge of the avcra)!C c:aroinl% to be calculated ond. ihe holiday. 'Ibe rethe la't one month immediately preceh

1 ~1! •• li<'( f'r:.sJted h the award was st.:~ ted 1 u · sball . • h t the c:mployeri "My award, therefore, u t ad ieee raied workffic:G pay wun to their dJily ra1ed an P

gJ6 SVPIENB Cf>VRT R:&POllTS

[1972].3 S.C.R.

. l'da -icles 1hr.ae Nationa1 Holid~ A for. 17 fesnval hO 1• ys ibnen who arc daily raters ancl

~eta~!~: :J:::eo~'!fl'Oln the 1st January., 1965~ For the holidays which -have accrued _from the .1st Janu

1965 till the date of. enforcement of the award aiWl :%ich .are gj\'."!n in .the list Ex. E-2 th~ employers shall .pay the arrears and in future a~ the fe$tial holidays and B National Holidays shall be .patd for. If the employers , ub9litute festival holidays on a rest day, for that day they .iball :pay double 'the wages.''

The irppellant, fling aggrieved by Uris award, presented a writ tion in the A1lail.abad High Court under Art. 226 of the Constitution complaining that the Industrial Tribunal had mis- C read and , misinterpreted Zhe statement of the parties recorded under r. 12 particularly the statement of Shri Jaiswal. It wu also averred that the QU.estian of festiv.al holidays depends on so many other factors particularly custom and usap; e and the Industrial Tribunal had -com.mitted a serious error in shutting out evidence in

re_tard to the practice prevalent at Kanpur in l'e!pect of the cus- I) tom and usage rltt'di~ 'festival holidays in the te-xtile industry there. The maiB tetile industry m 'the State of Uttar Prash according to the appellant's averme!it is concentrated at Kanpur.

The lle_ged admission by Shri Jaiswal contrary to the appellant•s pleadmg al}d contrary to 'the case set np 'by bot'h -parties ccm'ld not wnclustve .and tlle Industrial Tribunal ntegatly based its findr: m_g; on such alle£ed admission. ·

Jbe High Court. dismi.ssed the writ petition holding that it was tc:> the ldustnal Tribunal to allow or disanow any question whtc~ ?t cmde; r~ revant -or irrelevant and the High Court, in

exrcJst~£ tts rarudiction tmder Art. !26 of the Constitution, could no 11:0. tnto the crrectness or otherwise of the order disallowing f

!eft:!i

1iar question to be Pot toa witness such function being Tribunal .;.:- 3? appellate court. The ~~; rounds that the Industrial he bad made ::read.~· statement of Shri Jaiswal in hOlditlg tliit iaR .allowed to tb adnnson that 17 paid festival holidays were be sible in tbe h eor n as also considered (O bo impennisto Clte "Pilioltion ott wnt iurisdiction because tbat l)eins o Jw.U \l:nder r l2 v' :U:e. The statement made by Sbri the in'-rpret.l~ tkat . or 10&, to tlle High Court, was capable of pJ.oya-s. Were ~V~ l7Jt ~~o:d n roiision that the . tnt- Not be1nR isfed that tt-r! . esuv.u holidays to their work.Jn.oo. enor of iud.sdictioa oc £ • unpaed award su.tre.red from anY t>elition was dismissed. om auy manifet error of law the writ u

S~] from th to a of~ J~ 0 tad~t Ol the learned le Judge

~ ltti!y ~We" 4l't• DooftnbeC -

BIJLI: OOTTON MlLLS'i\1; INDllSTklAL Tl\l'IUNAL (Dua, /,) 917

A 5, 1966. However, leave tto appeal to thi!i Court was granted by the Division Bench on February 16, 1968, the petitionr having been held, to gpote the words of t.he High Court "entitled to a certificate either under cl. (a) or . (b) of Art. 13 3 ( 1 ) of the

Con9titution 11 • The Hi~ Court also certified "that the. value of the subiect matter of dispute before the High Court and in appeal B is not less than Rs. 20,000/ -; alternatively, it is certified that the

iudent.of 1tbis Court involves directly or indirectly a claim res

pectin~ wages amo1,1nting to more than Rs. 20,000/ -."

Before us the respondents raised an objection that the certificate anted by the High Court was incompetent and, therefore, c should be cancelled. Out attention was drawn to Art. 133(l)(a) . and (b) of the Constitution and it was pointed out that the High

Court misse~ that part of sut>.Art. 133 (1) where it is stated: that ''where the iudment, decree or final order appealed from affinns the decision of the court immediately below in any ca~ other than a case referred 'to in sub-clause (c), if the High Court nirtber • certifies that the appeal involves some substantial question of law." 0 Merely because the value of the sub; ect matter in dispute is more than Rs. 20,000/-, the respondent contended, it does not by itself justify the I!Tant of a certificate under cl. (a) or cl. (b). In the application for the requisite certificate the prayer included cl. (c) of Art. 133(1) as well, bUll: apparently at the time of arguments the submission was confined to cis. (a) and (b) alone.

E The appellant, when faced with this. difficulty, submitted that this Court should, on its oral request, rant scialleave to appeal after eondonin~ delay and it also filed a formal written application for special leave to appeal accompanied with an application for condonation of delay. For adopting such a course the appellant F relied on an unreported decision of this Court in The District Board (afterwards lila Parishad), Allahabad v. Syed Tahir Hussain & ors. ('1) There 1he appellant had come to this Court on a certificate purportin~~: to have been granted under Art. 133 of the Constitution. At the time of hearin~ it was objected on behalf of one of the respondents 1here that the certificate could only be G granted if thue was a substantial question of law and ince the certificate did not disclose on its face the existence of any such

qustion, the appeal was incon1petent. This Court, in view of i1s earlier decision in Shri Durga Prasad & anr. vs. The Banaras Bank

Ltd.(2), su&itained this objection and in the absence of a certificate of the High Court showing the existence of some substantial H question c:if law held the appeal to be incompetent. The appellant in that case when faced with a similar situation, had made an ornl ruest prayin, g for special leave, undertaking to file a written

.(l~ £,-A, No. 57S ofi963 eel on lu\y 23,1965. (2) {1964) 1 S.C.R, 475.

SUPREME COURT .REPORTS

[1972] 3 S:C.R.

petition for that purpose supported by an affidavit and accompa:nieCI A by an application for condonation of delay: This Court considered the CJ!.Se to' be firt and. proper fOr granting speiaJJeave whic)li wits granted on oral prayer but the appellant th~'re ws directed tb :tile special leave petition in this. Court within a week. The appellant in the present cas•; also filed during lthe c6urse of hearing special leave petition no. 676 of 1972 duly supported by an affidavit and B Civil MisceUaneous Petition . no.· 1319 of 1972 with a supportin, g affidavit praying for (i) condonation of delay, (ii) treating-, court fee paid on C.A. No. 1611 of 1968 as court fee on special leave t& appe~ and (iii) the security deposit in the earlier appeal being treated as security in the scialleave apoeal .• We heard all the matters together.

We consider the case to be covered by the precedent cHed and accordin.gly held the certificate granted by the High Court to be incompetent and, therefore, liable to be cancelled. With the cancellation of the certificate C.A. no. 1611 of 1968 must be dismis.- Sed; but in the circumstances there would be no order as to costs.

With reg, ard to the prayer for ranting special leave to appeal there can be no dispute that this Court is fplly competent to entertain this prayeJ:" and if the cause of justice so demands, to grant

the same and consider the special leave to appeal on the mrits.

Article 13 6 is couched in very wide terms and it vests this Court with discretionary power for setting right grave injustice in fit E cases. ln Shri Du~:ga Prasad's case (supra), this Court, having

regard to all the circumstances, did not consider that to be a fit case for graning special leave to appeal whereaS i.ti the later case of the District Board (afterwards Zila Parisha4) Allahabad (supra), it m;1y be recalled, this Court granted speCial leave tq appeal on oral request, dinctin~ that a fonnal spialleavc appli- F cation be filed within a week.

After considering all the circum-. stances we consider the present case to be fit for granting sial leave to appeal and for condoning the delay.

We order:acoord~ ingly .. : The appellant, however, must pay full court fee payable within 'two weeks but the security already deposited inCA:~·

l 611 of 1968 my .e treate~ as security in the special leave appeal. The result, therefore, is that now we have the fresh. appeal G by sPe¢hll1e.ave before us for decision. ' • . . .

The apellant's learned counsel drew.ur attention to'tbe' slate~. ml; lnts of t~~ respective cases of the parties before the lndu5ldal Tribunal and also to the statement of Shri Jaiswal under r . .t2~ lit ouf ''Vie~' .the statement of'.Shri J aiswal had~ as a matter of Iaw/o H be td as. a whole and alSo in the background and along .with tf)e

pleadinJ!; s as disclosed in the respective statements of cases. of: file parties-.fn order to: understand whether Shri Jatswal's .statement

. I

. BWLI.COTtON MILLS y. lNDUSTaiAL TanmNAL (Dua, J.) 919'

A amounted to a clear and. oonscious admission eliminating a cruciat

prrt' of the controversial issue.

Redtn~ them as a Whble we doo not 'consider it pOssible to bold tha( Jtl1e 'apPellant. had admitted 1hat the 17 feStival holidays were beirik'given. by' tnem as paid

holidays dispensing with the enquiry into the question referred fo1 adjudication to the Industrial Tribunal B

It may in this connection be pointed out that the real p.urpose <:ind object of r. 12 is only to pinpoint he precise comroversy by requiring the Qarties to state their respective cases at the .very .fil

sittirt~ of the Tribunal. This sta'tement is not like ilie testimony of a witness, part of which can be accepted and the rest rejoc; te.d. . It c was only in th.e nature of a supplementary pleading designed

mai.nly 1o remove vagueness and to clear ambiguities or indefiniteness in the pladings. This statement had, therefre, to be reao

and considered .as a whole. If it was considered unsati5factory in some respects this factor could be taken into account in. appreciat:-- ing the pleadings and evid•;!nce led in the case while coming i.O the o final decision but it could not debar the appeUant from leading evidence on the controversial issue as if such issue did not arise.

It is noteworthy that even the workmen did not plead that the festi

val holidays were treated as paid holidays but no payment was as. a matter of fact being made.

The holidays were of course allowed to the workmen but thewritten statement on behalf of the appellant unequivocally denied that there was any provision in law or practice for allowing festival holidays wi!th wages and it also denied that in the Agra region where the appellant's mill is situated any textile mill was paying wages for festival holidays. The appellant Mill it was emphasised could not be treated on a different footing. It was further pointed out that the appellant Mill was a highly uneconomic mill and was not in a position to take any extra buren. The statement made by Shri Jaiswal under r.- 12 could on no reasonable hypothesis be

coidered to have replaced this ur.equvoca1 and clear' , lea; It is true that Shri Jaiswal tried to be sorriewht clever by stati11~ that the festival holidays were paid in the sense tbat the workers were G . allowed to work on unpaid test days in substitution of the sajd'

festival holidays. But this statement clearly explains in Linainbiguous termLti!e sense in which Shri Jaiswal meant to say that the festival holidays were paid. The facts contained in the explauaion lead to the only conclusion that festival.holidays are not paid s the National Holidays are. This statement read with the. deta.iled' H explualiOn which constitutes its real core .could not logically serv~

as a nd for ignorin~ tlie unequivocal> denial in the . written stattment uarticularly when even tbc workmen did not set up this case. Industrial tribunal hJI.d,· in. 0\11:-0pinicin,- erroneo'usly

920 SUPIU!'NI! COU.IlT REPORTS

[1972) 3 :&C:R.

ino~ the real plea and had on the basis of this manifest blatant A error. whicla is clear on the face of the record, disallowed the .evidence on the question of the practice and custom in the textile industry in Kanpur. In Shri Iaiswal's statement we find a cleardistinction drawn that three National Holidays were paid holidays and the other festival holidays were such for which the workers

1Vere allowed to work on substituted rest days. It was also clearly B mentioned in iha't statement that if a holiday is substituted on a rest day then the workmen gets only one day's wages. This important put of the statement was virtually hnored by tt).e Tribunal. 'The facts bein~ clearly stated, in our view, he Industrial Tribuna I

was wron~ in law in holdin~ that the appellant's written plea was modified by reason of the staement under r. 12 or that there was C .a clear admission supetsedimz the earlier plea. The learned single Jude of the Hih Courtt, in our opinion, also missed the real point; and if the real plea was ignored and it was erroneously held 1hat Shri Jaiswal's statement under r. 12 cortstituted an admission

1 <>verrldiQi the earlier olea and as a result evidence on that plea was excluded, then it was an eminently fit case for interference under Art. 226 of the Constitution, the error being gross and palpable D which wa• manifest on the face of the record and the same having

resulted in failure of justice by excludin~ evidence on 1he most vital point. The Division Bench on special appeal from the judgment of the learned single Judge fell into the same error in summarily dismissing the appeal in limine without even recording a speaking order on the crucial point of substance arising in the case E which went to the root of , the matter. .

The question of fes'tival holidays requires consideration from -several aspects. Employers and workers have always differed in

tt SUJ~; Jilestions about the level at which unifonnity in the number of holidays should g; enerally be achieved. In the Report of F the National Commission on Labour prepared in August, 1969 we find .at p. 105 that the workers' organisallions generally favour a minimUill of 7 to 12 paid holidays in a year without makin, l! any diffel'.entiation as between: different categories of employees. Em-

-ployer~; on the other hand, feel that the number of paid holidays

enjoyed by workers in India is already on the high side, al').d, G there(ore, uniformity should be achieved t a much lower level.

The opiniqn of the Commission contained in its Report supported. the. view of its Study Gro9u on Labour Legislation which rem

JOOn~_ed three paid National Holidays viz. 26th 1anuary (Republic Day), lth Auust (Independence Day.) and 2nd Qtober (Mahatma Gandhi's Birth Day) and five paid festival holidays as H may be fixed by 'the appropriate Government in consu1tatio11 with the representatives ol employer• and employees. The Report also satRelti that there is a trend towards industrywiae uniformity in

BIJLI COTTON MILLS V, INDUSTRIAL TRIBUNAL (Dua, J.) 921

~ A the matter of holidays, as in the case of jute and coaL lnciden·

tally it may be mentioned that in U.P., the U.P. Industrial Estab-· lishments (National Holidays) Act No. XVIII of 1961 and rules made. under s. 9 thereof provide for .paid National Holidays but. that Act does not deal with festival holidays.

In the case before us, according to the appellant, the 17 festi- B val holidays as directed by the award would impOSe on the appel

!ant industry an additional burden to the extent of about Rs. 1,49,600 as was stated in 'the order of the Allahabad High Cou1't while granting leave. Custom, practice and uniformity in the industry without prejt, tdicially affecting efficiency and in- creased production are some of the relevant factors' which have C to be taken in't9 account in determining the number of paid festi

val holidays. per year. The question affects national economy and the present instance may well be cited in future in deciding similar questiops in other allied cqncerns in the region. The effect of such instances, therefore, does not remain confined only to the establishment concerned but has its impact on other con• D cerns as well. This aspect has been completely ignored by the

Industrial Trib_unal which has proceeded solely on the basis of the statement of Shri Jaisal as interpreted by it. This statement

being the sole .basis of the Tribunal's conclusion if it is not.

possibl~ to read in this statemem any admission having the effect of giving up the only crucial plea that the workmen have no r.ight E to 17 paid holidays than this is clearly a misreading of that statement and the Tribunal's order mu&t be held to be tainted by a manifest error of law on the face of the record which has resulted in gr!!ve failure of justice as evidence on the only material point in issue was illegally shut out. In our view, the High Court also fell into the same er.ror and did not apply its mind •to the real point which .arose for decision in the case. We accordingly F aUow this appeal, set aside •the orders of the High Court aud of the Industdal Tribunal and remit the case back to the Tribunal for a fresh decision on the merits after permitting the parties to lead releva~ evidence in accordance with law and in 'the light of

the observations made above. As the whole trouble arose 00caus~

of the un.stisfctory nature of the statement made by Shri G Jaiswal, who was also found by the Tribunal aS a person who was

 not inclined to give straight answers to straight questions, it is only just and proper that the appellant should pay the respondents' costs both in th.is Court and in the High Court. The coul't

fee, as already directed, must be paid by the appelJant within two weeks.

S.C.

Ap, wl aUowM.

BIJLI COTTON MILLS (P) LTD

THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL II & ORS

March 20, 1972

I. D. DUA, JJ

Holidays Act, 1961

Art. 133(1)

Supreme Court

National Holidays bul that Act

Syed Tcdrir Husain

921 AI ·

The Diitlict Board (afterwordr' Zila Paris.had' Allah(.•bad \t : Syed Tcdrir Husain & Ors.

Y. M. Tarkunde

P. Goyal

E. C. Agarwala

T. M. Sampat

Dua

Hathras Mazdoor Panchayat

Sooti Mi11 Mazdoor Pancbayat

Congress Mazdoor Sangh

Suti MUl

Kannachari Sangh

Congress Maz door Sangh

Sooti MilL Kaqn.achari .

Industrial Disputes Rules

M. P. Jaiswal

Sankrantt

Baldev

Bhadon Sukla Chnt

s. 52

Factories Act

Jai$wal

M.P. Jaiswat

s 0

. P. Gautam

Factories Act

Sections 51 and 52

Factories Act

Jaiswal

INDUSTRIAL TRIBUN

Jaiswal

Jaiswal

A1lail.abad High Court

Art. 226

Kanpur

State of Uttar Prash

Art. 13

Art. 133(l)(a)

Art. 133

Art. 133(1)

Art. 133

Article 13

Du~:ga Prasad

Allahabad

J aiswal

Jatswal

lNDUSTaiAL TanmNAL

Agra

Iaiswal

Art. 226

India

Em-
ployer~; on the other hand, feel that the number of paid holidays

enjoyed by workers in India is already on the high side, al').d, G there(ore, uniformity should be achieved t a much lower level.

Mahatma Gandhi

U.P.

s. 9

Jaisal

G Jaiswal


FetMS AMAR NATH BASHESHAR DASS .

'.v.

TEK ClfAND

March 21, 1972-

P JAGANMOHAN REDDY AND G. K. MITTER, JJ.J

[K. S.

EGDE, • . u b Rtlll Rtrriction Act, 1949, Ss. J and 13 read with , PficllnJ:!b d '1 adnJuly 13 l965..,..-Exemption from provision of &ection 13 ;11011 at ton a e • 1 · {il d ·.' .5 hefh b claimtd in CP.l't.t where sull or ttvrctlon e ww1t11 ; ars e;, ccC::mpletion of building but d.:cree obtained after" expiry of mid

' year:t • . Under the Pnjab Rent. Restricon, Ac_t, 1949 a landlord can evict a tenant only on the grounds and ac, ordmg to the procedullJ provided

. A

in section 13 of the Act. Section 3 of the A.ct provides. for exemption t~ be ranted bv Government from the opel':ltlon of sect1on 13. By noli ficauon dated July 30. 1965 t!YJ Government of Punjab granted su::h exemption in rcsp:ct of building constructed during the year 1959 to D J963 !or a period of S years from the date of their completion, on the , condition that during the aforestid period of exemption suits for eject

ment of tenants in respect of those buildings "were or are" institutes in .civil courts and dec~ ol e:ectment "were or are" passed. The re.spon . dent had let out to the appellant a building which was completed in 1960. _ ·- ·

A. tuit for ejectment of the appellant was tiled in 1963 and deere:: '11as obtamed in l ~69. In procediog for execution the question was whether the dr!_e, havmg hcq1 obtam-:u mre thon 5 years after completion of the

E --

u•ldmg, was exempt from operation of section 13. The High. Court '" 5eCOnd npal hld in favour of the .respondent.

In appeal to this !Aurt by spc:t•al i.eaYe, the appellant contend.!<! that the decree in' the su•t. avmg been. paW!d tftcr a period of 5 yeah from the date of cons- chon, e11o; molJon from restrictions plac.t:d by s 13 will not be avaikibc

cahlh "':t ... only tb~ uit . !hould be filed but 'the decree for eviction ~. ou e <ml:uned wtth1n the sajd pcrio<l of S )•!an. - ·

' liELD : The tiling o! fh It ·. h' h . , . .1.1.. -only condition that is . c sutb Wit •n t e penod o( el(empt'ion I!;· me uem, tion tbe other t necsary 6atMy otltot the requlremeilttcf the

~~ qf. whii; h no t i~ 6utr..!ent lnloa. the pa~•lng of tbe decreein shy 'dle ·appellant, bas;;, ~\ •· en prescnbe~. If t.he,, d\:r!:e. •~ CO!J!ell<kd wes:ill>" netd to \elf th~ . obtulnc~ w!thtn tb: period of S )'.!at$.": there bco:li!U!•: the e:emption fr~! the ~Uit. had to be fifed wthin tha(?eriod G

{>{ lhc ducr.:e •n..J pot tile suit. ~9~8qflerneoh of s .. I 3 !$ only in respe.::t

Tt•~. U"<: of !he v.· . -~~· 'we •· . . ' \UIIt ~Ul'YQCl\ the aho'1.:· \n" tr f: r. lire Ill l\;~P,:<:l O[ J.:tno~ U , i\<JI(~"IS Of Ue. t*r<bfltr, t.1 ~-~ Hf~:t p nb~IOO, e SUU shuu!J ba\·-' . b.;.:f\. -~ P•\<cd cr w~ htT(.':1flt:r t . l•kew•·~ deere~~ of elcmcr.t 4t bj:o I~ t.!d on th: !:J •t dy of lh • JW\\t<l. ifUrtr •. I\ . 'llt mav 't9n:HV"'.lf>t\'

~· 11 ~;· t>, urJ I•> pv, tu[ijh: lie; pH)~ uf lhe Years t:\.:n•rtioo .. :.:-1( -~ it lJ

:r~ • . ,,., u th; at .... oul<l be u;~ . t:O.:ree woul<i b.: gheo muu.; Jjately "'- ~~. 1br Mu !l'rouiJ be reult, If the contotiun that both tho:

IH:cpld~ . l'J27 1-1·928 E) N•MJ within the pcrie>J (Ji ucmptior(," 1s

 .

i I

FlRM AMAR NATH v. TEK CHAND (Jaganmohan Reddy,/,) W~J

A A statu:e rnust: be JntiJ~ete? m lhe lil)t ·:O~· i'l' ,.~.bct. The vry purpose of the exemption of buddmgs trom the operat1on of s, 13 was to give landlords the 1 ight which as owners of buildings they had under

the ordinary law, namely, to give them on lease at rents which they thouJ}!t remunerative and to evict te.nan.s during that period without any fotteQ impose;! by the Act.

If na pr.ovision wus >made for exempting such de~ rees in respect of the •!xempted building, the exemption granted w1Jl B be illusory. 1.926 H-927 EJ ·

Accordingly the appeal must fail.

CIVIL APPELLATE JURISDICTION: C.A. No. 1052 of 1971.

Apeeal by special leae from the judgmn.t and or?er dated May 27, 1971 of.the PunJab and Haryana Htgh Court mExecu c tion Second Appeal No. 1783 of 1970. ·

M. C. Chag'la, V. C. Mahajan, S. K. Mehta K. L. Mehta and K. R. Nagaraja, for the appellant.

M. C. Setalvad, 0. c. Mathur, J. B. Dadachanji and Ravinder Narain, for the respondent.

D The Judgment of 'the Court was delivered by P. Jagamnoban Reddy, . .J.

The respondent who was constructing~ buildjng, had leased it out on a monthly tenancy to the appellant on the 1st November 1959. The building was uhimately complejed in March 1960. On 14-1-1963 he filed a suit

an.d .I!:Ot a decree for ejectment on 14-8-196~. On 29-8-1969 he E filed an .execQion petition but the executing court dismissed it on 16-4-1970 on the ground that the conditions .Prescribed in th•.!

notification of the Government of Punjab under section 3 of the Punjab Urban Rent Restriction Act 1949 (hereinafter called the Act') dated ~0-7 -1965, exempting such decrees from sect ion 13 of the said Act were not complied with. An appea~ aszJin'1t this F iudgment was unsuccessful. On a second appeal 'the High Court

held tha1 th~ decree was executable inasmuch as that decree was

exempted, under the notification. _This appeal is by special leave against th.at judgment..

Before we notice the conditions prescribed for the exemt>tlon of decrees of eviction against tenants from the provisions of the G Act, it is necessary to refer to section l3 of the Act in so far a5

it is relevant and •the notification exe1npting decrees obtaid by certain categories of landlords from tho, se provisions.

IL is well known that due to the nonavailability of housing accpn:ul)Odation in urban areas and the consequent hardship to tenants who were already occupying buildings on lease, almost all'the States enacted H legislation by and under which the landlords' rights to evict

tt.!nants as well as the ri, ght to recover higher exorbitant rents were considerably cut down. The main scheme of these Act~ genera1!y was to make i't obligatory on landlords intending to

924.

SUPREME COURT REPORTS [1972] 3 s.c.R.

eviot tenants to make applications before the authority prescrid

UJlder the Act only on the grounds specified in the particular

leislation, the Rent Control Authority alone could make an enquiry and order eviction. The jurisdiction of the civil courts was ten away. In some of the States, such as in .Uttar Pradesh, civil courts were allowed to entertain eviotion suits but subject to prior leave being obtain from the District Magistrate. ln other words, in that State two rounds of litigation were provided for.

Simila.d:y, aexmcations for fixation of fair rent where the rent charged was considered to be exorbitant. could also be made be fore these authorities. These restriotions could not, however, serve as a panacea for solvin~ the accommodation problem in urban cities consequent on tht ptrenoroenal migration of population into thos~ areas which was further aggravated by large scale exodUs due to the partition of India. It, therefore, became necessary for each of the State Governments not only to undertake

buildin~ schemes itself but also to encourage persons who had the means to build by exempting newly constructed buildiug which were let out to tenants from rent control restrictions for a particular period. One of such lep; islations is the Act with which we are now concerned. Unlike other Rent Control legislations, this Act adopts r:ather a novel method, in that while it pern1Hs suits beinp; filed and decrees obtained, it places restrictions against their execution except on specified grounds.. In this case, however, we are not concerned with the novelty of the 1egislation or the bardship, expense and delay which is caused to the landlord or the tenant by the innovation. adopted by i't.

We may now reaGl the relevant provijons of section 13 which are as under :-

" 13 ( 1) . A tenant in possession of a bu'ildinJ?, or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy. except in accordance with the provisions of this section, or in pursuance of an order made under section 13 of the Punjab Urban Rent Restriction Act 1947, as subsequently amendttd.

(2_). A landlord who seeks te> evict his tenantshall apply to .the Controller f-or a dire:ction in that behalf.

If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied-

( here the grounds upon which. he should be satisfied have bn set Qut)

th"! ontroller may. make an order directinJ?;' the tenant to. f>;'t the landlord' in J)OSSeSSion. oo the building or

FIRM AMAR NATH v., TBK CHAND (Jaganmohan Reddy,/.) 92S

rented land and if the Conrtroller is not so satisfied he shall make an order rejecting the application : ·

Provided that the ContfQiler may give the tenant a reasonable time for putting the landlord in possio.n

of the building or rented land and may exttend such time so as not to exceed three months in the aggreate.

(3) (_a) A landlord may apply to the Controller for an order directing the tennt to put the landlord in possession-

( The 2rounds on which he can apply have been set out)

(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order direct~

ing the tenant to_ put the landlord in possession of the building or rented land on such date as may be speci~ fied by tq~ Controller and if othe Controller is not s~

satisfied, he shall make an order rejecting the applica~ tion :

(c) x X X X X

 Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of E the building or rented land and may extend such time so as not to exceed three months in the aggregate.

(4) X

(5) X

X X

X x"

The Government tinder sectio.n 3 has been empowered to direct that. all or any of the provisions of the Act shall nor apply to any particular building or rented land ot any class of building or rented lands.

Pursuat to this power,; the State. Government was notifyin, g exmptions. from time to e during a period of 2,0 years, the :first notification it appears having been issued on G the 8th March 1951 which exemp!P.., d buildings constructed in

1951 and 1952 from the provisions of the Act for a period of S years with effect from the date of completion of any such build ing.

Thereafter followed . several notifications which exempted buildings constructed in each of the years after 19$2. The

notification with which we are now concerned was issued on

30-7-1965 and is in the following terms:.:.._:_ H ·" . . . . In exercise of the powers conferred by .&ec~ tion 3 of the Punjab Urban Re.nt Restri~ion Act 19.4~

and aU other powers enablin~ hi.m: in this behalf, tho . ' 13-L1061 Sup. C I/72

• 926

SUPREME .CQVRT REPORTS . [1972] 3 s.s.R.

Goyerrlor of Punjab is pleased to direct that the provi A sions of section 13 of the said Act shall not apply .in respect of decrees for e.iectment of tenants in possession of building which satisfy the following conditions, namely:- ·

(a) Bildings constructed during the years 1959, B .1960, 1961, 1962 and 1963 are exempted from

all the provisions .of the said Act for a period of five years to be calculated from the dates of their completion. and

(b) During the aforesaid period of exemption suit~

for eiectment of tenants in possession of 'those c buildings were or are instituted in civi} t:ourts by the landlords against the tenants and decrees

of ejectment were or are passed".

Under the above notification, the provisions of section 13 are made inapplicable to decrees in respect of buildings constructed during the years specified in (a) for a period of 5 years to be cal culated from the dates of their completion provided during the said period uits had been institU'ted by the landlords against the tenants.

There is no doubt, from the facts set out above, the building in respect of which exemption from the application of section 13 is being claimed, was comple'ted in March 1960 and a suit had also been filed on 14th January 1963 before the ex~ picy of the period of 5 years from that date. It is contended by the learned Advocate for the appellant that the decree in that suit having been passed on 14th August 1969 after the period of 5 years from the date of construction, the exemption from the restrictions placed by section 13 will not be available, because according to him not only the suit shouldbe filed but the decree for eviction should be obtained within the said period of 5 years.

This conten1ion on the very face of it would lead to incongruity m: would, if accepted, have the effect of nullifying the very purpose for which the exemption was being given.

We were reminded wit)J a somewhat emphatic assertion what appears to us

to b; e unexceptional that the Courts are not concerned with J:he

policy, of the legislature or with the result, whether injurious of G otherwise, by giving effect to the language used nor is it the func~

tion of the Court where the meaning is .clear not to give effeot to it merely because it would lead to hardship. It cannot, however, be gainsaid that one of the duties imposed on the Courts in interpreting a particular provision of law. rule or notification is to ascertain the meaning and intendment of t.hte legislature or of 'the delegate, which in exercise of the powers conferred ori it; has made the rule or notification in question. In doing so, we must always presume that rthe impugned provision was designed to

~RM A:MAR NATH V, TEl: CHAND(Jaganmdum Reddy, J.) .~27

A effectlfate a particular object or tb 'il)eet a particular requirement

and not that it was intended tt6 negative that which it sought to achieve. It is clear that the Government intended to grant certain i.ti.ducements to J)ersons who had the means to construct

buildings by exempting any such . building so constructed tor a period o~ 5 years. . The period of 5 yers. could commence from the date of construction or from some other date. Initially, as the earlier notifications would show,. that exemption of 5 years was given from the d:ate when the building was constructed but by the impugned notification it was intend.ed to confer the benefrt . by giving exemption of 5 years from a subsequent datr.!, namely, the date of the institution of a suit, provided it was instituted within a period of 5 years from the date of the eonstruction of C the building. A closer reading of the notification would show

that. it was intended to clarify and provide a workable solution in

respect of building constructed in 1959, 1960, 1961, 1962 and

1963. These buildings had already ben exempted from the provisions of section 13 by two earlier notifications, the first one in

1960 givin, g exemption upto 31-12-1963 and the seond. iq 1963 D for 5 years from the date of completion of the building. It is

clear from the language of the notification that , what is exempted is . the decree for ejectment of a tenant from ihe applicartion of se£:tion 13. The very purpose of exemption of buildings from the operation of s.ection 13 was to , give landlords the rights which a~

owners of buildings they had under the ordinary law, namely, to E give them on lease at rents which they thought were remunerative and to evict tenants during th1tf period without any fetters imposed

. by the Act. If no provision was made for exempting such decree:;

in respect of the exempted buildings, the exemption granted will be illusory, Clause (b), therelore, provided for the time during which th~ suit in which the. decree has been passed should be filed. The decrees pasSed in such suits will be executable free from the fetters imposed by section.13 of the Act. It is obvious that the filin, g of a suit by itself does not confer any exemption because what is exempted from the provisions of seotion 13 is the decree; A suit filed, 'therefore, must end in a decree though that decree may be passed subsequent to the expiry of the 5 years' period during .hich exemption from the application of section 13 G has been granted. ·

The leamed Advoca1e for the respondent has suggested 3 construction which is consistent witfu our reading of th~ notification and that is that the. words 'were' or 'are' used in clause (b) both in respect of the filing of the suits and tthe passing of the decrees would indicate that 'these suits should have been filed or are hereafter to be filed and likewise decrees of ejectment had been passed or are hereafter to be passed. In other words, the suns must have been already filed during the period of emption

SUPREME. COURT REPORTS.

[1972] 3 S.C.R.

or are to be instituted during such period.

This language had to be used because 'the 5 years' exemption in respect of the buildings constructed in 1959 would end in 1964 while the notification was issued in 1965. There is no question of suits being filed in respect of these buildings hereafter, as such decrees in suits filed before 1964 would be exempted. In respect of the buildings constructed in 1960, !there would be some buildings in res- B pect of which the five years' exemption period would have expired before the notification and, therefore. the suits in respect of such buildings during the relevant period in 1960 should have b.een. filed before that period expired and where the exemption expires after the notification, suits could be filed thereafter but before the exemption exnires. In respect of 1961, 1962 and 1963 there is C of course no difficulty because there is sufficient period for filing suits if they had not been filed by the time the notification was. issued.

Taking the typical case of a building constructed in 1961, the period of 5 years' exemption would expire in 1966 and under the first part of clause (b) it would be open to the lap.dlord to file a suit for ejectment even on the last day of 'the expiry of the 5 years' exemption. If so, it would be absurd to postulate D that a decree would be 11; iven immediatey thereafter, as tht would be the result, if the contention that both the suit and me decree should be passed within rthe period of exemption, is accepted. This could not have been th.e intention of the Oovemment in publishing the notification under section 3.

~ E It is clear to our minds, as it was to the High Court that under clause (b) the filing of the suit within th~ period of exemption is the only condition that is necessary tp sa~fy one of the requirements of the exemption, the other requirement being the passing of the decree in respect of which no time has been prescribed. If the decree, as contended by the learned Advocate for the appellant, has to be obtained withirl the period of 5 years, F there was no need to specify that the .suit had to be filed wiihin that period because the exemption from the requrements of section 13 is only in respect of the decree and not the uit There

ws. therefore, no need to mentiotl about the time of the filing of the suit.

In the view we have taken, the construction placed by the G High Court is the only construction '!hat is possible on the language of the notification. This appeal is accordingly dismissed with costs.

G.C.

Appeal dismissed.

FetMS AMAR NATH BASHESHAR DASS

P JAGANMOHAN REDDY

G. K. MITTER, JJ

Rtlll Rtrriction Act, 1949

section 13

Section 3

section 13

s 13

TEK CHAND

Jaganmohan Reddy,/

M. C. Chag'la

V. C. Mahajan

S. K. Mehta K. L. Mehta

K. R. Nagaraja

M. C. Setalvad

B. Dadachanji

Ravinder Narain

P. Jagamnoban Reddy

section 3

Punjab Urban Rent Restriction Act 1949

.Uttar Pradesh

India

section 13

section 13

Punjab Urban Rent Restriction Act 1947

Jaganmohan Reddy,/.

section 13

section 13

section 13

14th January 1963

14th August 1969

section 13

CHAND(Jaganmdum Reddy

section 13

section 13

section 3

section 13