SAMMBHU NATH JHA

KEDAR PRASAD SINHA & ORS.

January 24, 1972

(J.M. SHELAT AND H. R. KHANNA, JJ.]

Contempt of Court-Publication in Newspaper of notification under s. 3 of Commissions of Inquiry Act, 1952 instituting inquiry against ers~ while ministers of Bihar Government-Allegation in notification against one of the ministers that he had against advice of officials ordered withdrawal of prosecution of criminal case and on trial court refusing permission to withdraw ordered filing of revision petition in High Court and thereby interfered with course of justice-Revision filea in~ Hig, h Court by accused also-Revisions pending in High Court at time of publication of notification in Newspaper-Such publication whether eo.nstitutes contempt of Court-Section 3(1) of Commissions of Inquiry Act whether makes it mandatory for Government to publish notification in official gazette.

The appellant who was a minister in the State Government of Biharissued to the press a copy of the notification published in the Bihar

Gazette Extraordinary dated March 12, 1968 whereby an inquiry bad been instituted, among others, against a former minister of the State Government. According to allegation No. J-4 in the schedule annexed to the notification the said minister had by misuse of his official position and power unnecessarily interfered with the administration of justice in a serious case of rioting and murder. It was alleged that he had1 against the opinion of the District Magistrate and the Law Secretary, ordere!l the withdrawal of the prosecution against two of the accuSed and the"fWter when the Trial Court rejected the application for, withdrawal he caused a reVision petition to be filed in the High Court. The Searchlight of Patna in its issue of March 14, 1948 published the copy of the notification issued to it by the appellant, including the schedule of allegations. Ai\. application was filed on March 25, 1968 by the two accused aforesaid in the High Court for initiating contempt of Court proceedings against several persons including the appellant and the printer and publisher of Searchlight. It was urged by the applicants that revision petitions filed by them and by the State Government against the orders of the Trial Court refusing l?"rmission to withdraw the case were pending in the High Court at the time of publication and since allegation No. J-4 in the schedule to the notification was related to the subject matter of the said revision petitions the publication constituted interference with the course of justice inasmuch as it had prejudiced mankind against them.

HELD : The Courts have power to take action against a person who •does an act or publishes a writing which is calculated to bring a court or judge into contempt or to lower his authority or to obstruct the course of justice or due administration of law. As intention of the contemner to oauae those consequences is not a necessary ingredient of contempt of court and it is enough to show that his act was calculated to obstruct or interfere with the due course c!f justice and administration of law, there would be quite a number of cases where the contempt aneged would be of a teclmlca! nature.

In such cases, the court would exercise circumspectfon and judicial reru-aint in the matter of taking action for contempt cif coul'l.-The

court bas to take into account the surrounding ci'rcumstances and the material facts of the case and on c0nspectus of them to come to a conclusion whether because of some contumacious conduct or other sulllcient reason the person proceeded against should be punished for comtempt of court. fl 89 E-0]

Reg. v. Gray (1900] 2 Q.B. 36; E.M.S. Namboodripad v.

T. N.

Namblar, [1970] S.C.C. 325; Re: P. C. Sen, [1969] 2 S.C.R. 649; Debi

Prasad Sharma and Ors. v. The King Emperor, L.R. 70 I.A. at p. 224; Legal Remembrancer v. Matilal Ghose and Others. I.L.R. 41, Cal. 173, applied.

Plain reading of S. 3(i) of the Commissions of Enquiry of Act makes it manifest that -the notification appointing a commission of inquiry must be published in the official gazette. It is an inperative requirement and cannot be dispensed with. The commisslon (J'f inquiry is appointed for the purpose of making an inquiry into some matter of public importance. The schedule containing the various allegations in the present case was a part of the notification dated March 12, 1968 nd specified definite matter of public importance which were to be inquired into by the Commission. As such the publication of the schedule in the official gazette should be held to be in compliance with the statutory requirement. The object of publication in an official aazette is twofold : to. give publicity to the notification and further to provide authenticity to the contents of that notification in case some dispute arises with .regard tp the contents. [190G-HJ

In the present case no undue emphasis was given to any portion of the notification as the whole notification as printed in the Gazette was given to the neW.paper for publication. Further, the subject matter of the inquiry before the Commission as set 'Iorlh in allegation No. I-4 was whether there was any misuse of official position on the part of the Minis- 1<1" concerned when he directed against the re<:ommendation of the Law Sea:etary aad the District Magistrate, the withdrawal o'f the prosecution against the two accused in question. The question for decision which, liowever, was the subject of criminal revision petitions pending in Patna Court was whether the order of the magistrate dismissing the application for withdrawal of prosecution was contrary to law.

The two aatters were distinct and separate and not identical. It may be that some of tho matters which were connected with the criminal revision petitions

were tho subject of inquiry by the commission of inquiry, but that would aot. attract liabi)ity for contempt of court. [191 C-D]

1., annat/i Rao v. Slate of Or)ssa, [1968] S.C.R. 789; referred to.

The jud1111ent of tho High Court must accordingly be set aside and the rule issued :tgainst the appellant for contempt of court must be discharged.

G · (192 Cl

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 30 of. 1969.

Appeal by special leave from the judgment and order dated the 12th August, 1968 of the Patna High.Court in Original Crimi- 1-1 nal Miscellaneous Petition'No; 30 oi 1968.

Basudev Prasad Sinha and B. P. Jha, for the Appellant.

s. N. JllA v. K. P. S!NllA (Khanna, J.) i85

The Judgment of the Court was delivered by

K11a1ma, J. This is an appeal by ; pecial leave by Sammbhu Nath Jha who along with two others has been found by the Patna l; ligh Court to be guilty ol contempt of court. In view of the fact tliat the contempt, in the opinion of the High Court, was of a technical nature, the contcmiriers were let off with a warning.

On January 2, 1966 a report was lodged wi1h the police ey Lachho Paswan that when he and his brother Dwarka Paswan were going to J amui market, Kedar Prasad respondent abused them.

Kedar Prasad also exhorted others to assult Dwarka Paswan.

Atn assault was then made upon Dwarka Paswan and he was surrounded. Ariun Pandey thrust Saif in the chest of Dwarka Paswan,

as a result of which he died on the spot.

The motive for the assault was stated to be that Lachho Paswan and Dwarka Paswain had voted against Kedar Prasad in the election to the office of Mukhia. The police on the basis of that report investigated the case and submitted a charge sheet for offences under sections 148 and 302 read with section 149 I.P.C. against a number of persons.

No charge sheet was submitted against Kedar Prasad and Arjun Pandey. During the course of commitment proceedings, the commitling magistrate ordered that Kedar Prasad and Atjun Pandey be sum mooed for May 15, 1966 as accused.

Kedar Prasad and Arjun Pandey filed revision petitions against the order ot the committing magistrate, but the same was dismissed by the Additional Sessions Judge, Monghyr as per order dated May 5, 1967. It was held that Kcdar Prasad and Atjun Pandey had ben rightly summoned.

After the dismissal of the revision petition, an application was filed by the Assistant District Prosecutor on September 18, 1967 in the court of the learned magi>tratc for withdrawal of the case against Kedar Prasad and Arjun Pandey on the grO\llld that it was inexpedient for State and public policy to prosecute them. After hearinp; the counsel for the complainant and others, the committing magistrate dismissed the said application on October 6, 1967. It was o1$erved that the application for withdrawal of the prosecution amounted to an abuse and improper inte1fcrQ11Ce in the normal course of justice.

Two revision petitions were filC<! against the above order dated October 6, 1967. One of the revision petitions was filed by the State of Bihar and the other was filed b¥ one Abani Kumar Ma, ndal.

Both the revision petitions were admitted by the High Court on November 30, 1967.

During the pendency of the above mentioned criminal revision petitions, the Governor of Bihar as per notification dated March 13-18648 upCI/72

12, 1968 appointed a Commission of Inquiry consisting of Shri T.

L. Venkatarama Aiyer, retired judge of the Supreme Cou1t, under section 3 of the Commissions of .Inquiry Act, 1952 (Act 60 of

1952) to inquire into a number of charges against 14 persons who had earlier held the offices of Chief Minister and ministers in ltte State of Bihar.

One of the persOQ!i against whom inquiry was ordered was Shri Hasibur Rahman who had held the office of Minister duri, ng the period from March 16, 1967 to January 28,

1968. The allegations which were the subject matter of the inquiry were set forth in the schedule annexed to the notification.

Allegation No. J-4 which was the subject of inquiry against Shri Hasibur Rahman was as under:

"Shri Kedar Prasad Sinha and Shri Arjun Pandey . were facing prosecution along with nine others in a serious case of rioting with murder which was pending before the Munsif-Magistrate, Jamui.

They filed a revision petition !:¢fore the Additional Sessions Judge, Monghyr against their prosecution, which was dismissed.

Thereupon on 6th June, 1967 they presented an application direct to the then Mster for Law, Shri Hasibur Rahman, who directed that the Law Secretary should examine the matter and report and in the meanwhile the District Magistrate was requested to take two months' adjournment of the case and also send the case diary with his report.

On 17th August, 1967, the District Magistrale sent his report opposing withdrawal cf the case. Even before lhe District Magistrate's letter was diarised in the Law Department, Shri Hasibur Rahman called for the file directly from the dealing assistant and ordered that a telegram should be sent to the District Magistrate to take further adjournment for a fortnight.

The matter was then examined thoroughly by the ofikers of the Law Department and in his note, dated 30th August, 1967, the Law Secretary recommended against withdrawal of the prosecution pointing out that there was a prima facie case and justice demanded that it 'houlcl be thrnshcd out in Court.

Shri Hasibur Ral11m111, howcwr, ignored the advice of the District Magistrate as well us of the Law Secretary and ordered on 10th September, 1967 that the case should be withdrawn.

A petition for withdrawal was accordingly filed on l 81h Scplemhrr, 1967, hut was rejected by the trial court.

Thereupon Shri Hasibur Rahman directed !hat ;1 revision should be filcJ in the

S, N., JHA v. K. P. SINHA (Khallll(I, J.) 187

High Court against the refusal oi. the trial court to allow withdrawal of the case. A revision was accordingly filed, which is still pending before the High Court.

"Shri Hasibur Rahman thus by misuse of his official position and power unnecessarily interfered with the administration of justice in a senous case of rioting with murder.''

The notification relating to the appointment of the Commission of Inquiry along with the schedule containing the different allegations was published in the Bihar Gazette Extraordinary . dated March 12, 1968. The same day the appellant, who was one of the ministers of Bihar, gave ; for publication to the press a eopy _of the notification, including the schedule of allegations. Thesaid notification along with the schedule of allegations was published in the Searchlight of Patna in issues dated March 13, March 14 and March 15 of 1968. Allegation No. J-4 relating to the withdrawal of case regarding Kedar Prasad SWia was published in the issue of Searchlight dated March 14, 1968. Application dated March 25, 1968 was thereafter filed by Kedar Prasad and Arjun Pandey for initiating contempt of court proceedings against 25 persons, including the State of Bihar, th~ Chief Minister and Ministers of Bihar, the Chief Secretary of the Bihar Government as well as Shri Subhash Chandra Sarkar, Editor Jlnd Sbri Awadesh Kumar Tiwari, printer and publisher of the Searchlight. . The appellant was impleaded as respondent No. 3 ,\Jl the application.

It was urged that the publication Of allegation No. J-4 related to

a matter which was the subject matter o~ criminal revision petitions in the High Court and had the result of interfering with the course of justice and prejudicing the mankind against the two applicants.

The learned jude who dealt with the application held that no case for contempt of court bad been proved against 22 out of 25 persons. The appel!ant was, however, found to be guilty of contempt of court, because it was be who had handed over the offonding matter to the press for publication in the newspaper.

Th" editor as also the printer and publisher of the Searchlight too were found uilty because of the publication of the news item in the aforesaid paper.

We have heard Mr. Basudev Prasad on behalf of the appellant.

No one has appeared on behalf of the respondents. After givin~ H the matter our consideration, we are of the opinion that the pesent is .not a fit case wherein action should hie taken for contempt of court. 14-L864 Sup.Cl/72

The law relati.ng to contempt of court is well-settled.

Any act done or writing published which is calculated to bring a court or judge into contempt or to lower his authority or to interfere with the due course of justice or the lawful process of the courts is a contempt of court [Reg, v. Gray( 1) ]. The law of contempt as observed by this Court in the case of E. M. S. Namboodrlpad v. T.

N. Nambiar(2) stems from the right of the courts to pu.nish by imprisonment or fines pers<Jtlls guilty of words or acts which either obstruct or tend to obstruct the administration of justice.

This right is exercised in India by all courts when contempt is committed in facie curaie and by the superior courts on their own bjeha.lf or on behalf of courts subordinate to them even if committed outside the courts.

Fonnerly, it was regarded as inherent in the powers of a Court of Record and now by the Constitution of lndia, it is a part of the powers of the Supreme Court and the High Courts.

There are many kinds of contempts.

The chief fonns of contempt are insult to judges, attacks upo_n them, comment on peinding proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesiies or the parties, abusing the process of the court, bre, tch of duty by officers connected with tjle court and

scandallsin~ the judges or the oourts.

The last form occurs, generally speaking, when the conduct of a person tends to. bring the authority and administration of the Jaw into disrespect or disregard.

Jn this conduct ate included a.Ii acts which btjng the court into distepute or disrespect or which offend its dignity, affront its majesty or challenge its majority.

The matter was also dealt with by this Court Re: P. C. Sen(') and it was observed :

"Contempt by speech or writing may be by scandalising the Court itself, or J:ty abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard.

It is incumbent upon Courts of justice td' preserve their proceedings ffOJll being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes befQre the cause is finally heard has pernicious consequences.

Speeches or writings mirepresting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt. To make a speech tendmg to in'lluenee the result of a pending trial, whether civil or criminal is a grave contpt. Comments on pending proceedings, if emanating from the t>atties or their lawyers, are generally a mote serious contempt than those comlitg from independent sources.

The question in all cases of cotnment

(I) (1900] . i Q.ll. 36.

(2) [1970l s.c.c. 325. (Jl p969J 2 s.c.R. 649.

s. N. JHA v. K. P. SINHA (Khanna,!.) 189

on pending proceed\ngs is not whether the publication d9es interfere, but whether it tends to interfere, with the due course of justice. The question is not so much of the intention of the conteni.ner as whether it is calculated to interfere with the administration or justice ...

Reliance in the above cited case was placed upon the foJlowing observations of the Judicial Committee iii the case of Debi Prasad' Sharma and Ors. v. The King-Emperor(!).

". . . . the test applied by the . . . . . Board which jteard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of -justice and the due administration of law." It has -also to be borne in mind, as observed in Re: P. C. Sen('),

that ordinarily a court will not initiate procedings for commitment for contempt where there is a mere technical contempt.

This Court referred in the above context to the observations of Jins, C.J., in Legal Remembrancer v. Matilal Ghose and Olhers(') that proceedings for contempt should be initiated with utm<>st reserve

and no court in the due discharge of its duty ca.n afford to disregard them.

It would_ follow from the above that the courts have power to take action against a person who does an act or publishes a writing which is calculated to bring a court or judge into contempt or to lower his au1hority or to obstruct the due course of _justice or dll'~ administratiQn of law. As intention of the contemner to cause those consequences is not a necessary ingredient of contempt of court and it is en011gh to show that his act was calculated to obstruct or interfere with the due course of justice and administration

of Jaw, there would be quite a number of cases wherein the contempt alleged would be of a technical nature. In such cases, the court would exercise circumspection and judicial restraint iu the matter of taking action for contempt of court The court h:is to take into account the surrounding circumstances and the material facts of the case and on conspectus of them to come to a conclusion whether because of some contumacious conduct or oilier sufficient reason the person proceeded against should be punished for contemptof cqurt.

Let us now examine the fac!s of the present case in the light'of • what has bieQn stated above.

The gravamen of the charge against the appellant is that during the pendency in .the High Court of the two revi5ion petitions mentioned earlier, he handed over to the representatives of the press for publication in the µewspapers the

. (I) LR. 70 I.A. at p. 224.

(2) [969} 2 S.C.R. 649. (J) I.LR. 41 Cal. 173.

l'llO

SUPREME COURT REPORTS

notification, including the schedule of allegations, which had been issued under section 3 of t.hc Commissions of Inquiry Act.

The learned judge in holding the appellant guilty ol contempt of court observed :

. "But the mischief in this case was committed by publicizing the said allegations with full knowledge that the two criminal revision petiiions were pending in this court and the question as to whether the withdrawal petitions were bonafide or not was still to be considered by this court.

I have not lieen shown any statutory provision which lays down that allegations of the , Ilature contained in the offending matter must be printed in the official gazette or in the public press."

It would follow from the bove that the decision of the High Court was based upon the assumption that there was no statutory provisiqn which required that allegations of the nature contained in the offending matter should be printed in the official gazette.

Such an asumpti.on in our view was incorrect.

The material part of sub-section (1) of section 3 of the Commissions of ]inquiry Act reads:

The appropriate Government may, if it is of opinion that it is necessary so to do, and shall if a resolution in this *half is passed by the House of the People or, as the case may _be, the Legislative Assembly of the State. by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions m1d within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the .:Unctions accordingly.

Plain reading of the above sub-section makes it manifest that the notification appointing a commission of inquiry must be published in the official gazette. It is an imperative requirement and cannot be dispensed with.

The commission of inquiry is appointed for the purpose of making an inquiry into SOI11f matter of public importune.~. TI1e schedule containing the various allegations in the present case was a part of the notification dated March 12. 1968 and speified definite matters of public importance which were to be inquired into by the Commission.

As such, the publication of the schedule in the official gazette should ble held to be in compibnce with the statutory requirement.

The object of publication in an official gazette is twolold : to give publicity to the notification and further to provide authenticity to the contents of that notification in case some dispute arises with regard to the contents.

s. N. JliA v. K. i>. SINHA (Khanna; J.) i9!

What was given to the press for publication in the present case was the notificatiQn issued under section 3 of the Commissions of Inquiry Act.

The present is not a case wherein only part of the notification or some portions of the allegations were given for publication to the press with a. view to give emphasis to ainy part of the allegation. On the contrary, what was given to the press was the entire notification.

The subject matter of the inquiry before the Con:tn1ission as set forth in aljegation No. J-4 was whether there was any misuse of official position on the part ol Shri Hasibur :Rahman when he directed against the_ recommendation of the Law Secretary and the District Magistrate, the withdrawal of the prosecution against Kedar Prasad aio.4 Arjun Pandey. The question for decision which, however, was the subject of criminal revision petitions pending in Patna High Court was whether the order of the magistrate dismissing the application for withdrawal of prosecution was contrary to law. The two matters were distinct aind separate and not identical. It may be that some of the matters which were connected with the criminal revision petitions were the subject of inquiry by the cemmissioll of

inqlliry, but that would not attract liability for contempt of court.

In the case of JagallflQth Rao v. State of Orissa(1) the appellant had challenged a notification issued under section 3 of the Commissions of Inquiry Act appointing a Commission of Inquiry to inquire into certain allegations against persons who had held the offices of Chief Mmisters and ministers in Orissa.

An arguiacnt was advanced iii -that case that one of the items of charges which were to be inquired into biy the commission was the subject matter Of an appeal pending in the High Court. Question arose~ that context whetherJ4e setting up of the commission of inquiry by the State Govern4J-etit or the continuation of the i.nquiry by the cOlllDlission would be tantamount to contempt of court. This Colltt held that the above !lcts would not · constitute contelllpt of court and observed: _ - --

"It was po\nted out by this Court in Shri Ram Knmna Dalmia v. Shri Justice S. R. Tendo/kar(1) that the inquiry cannot be looked upon as a judicial inquiry and the order ultimately passed cannot be enforced proprio vi1ore.

The inquiry and the investigation by the Commission do not therefore amount to usurpation of the function of the courts of Jaw. The scope of the trial by the Courts of law and the Commissioµ of Inquiry is altogether different. In any case, it CllrinOt be said that the Commission of Inquiry would be liable for contempt of Court if it proceeded to inquire into matters referred to it by the

---(I) [1968] _3 S.C.R. 789.

(2) [1'S9] S.C.R. 279. 15-L864SupC.I./72

192 SUl'ltEM!: COURT JtBl>ORtS (1972] 3 S.C It

Government Notification. In appointing a Commission A of Inquiry under section 3 and in malting the inquiry contemplated qy the !l!Otification, the Commission is performing its statutory duty. We have already held that in the appointing of the Commission of Inquiry the Government was acting bona fide.

It is, therefore, not possible to accept the argunuint of the appellants that the B setting up of the Commission of Inquiry_ bx. the State Government or the continuance of the inquiry by the Commission so constituted would be tantamount to contempt of Court." In our view the judgment of the High Court cannot be sustained.

W.e, therefore, accept the appeal, set aside the judgment C of the Higli Court and discharge the rule which was issued against the appeJlant for contempt of court.

G.C.

Appeal allowed.

JHA

KEDAR PRASAD SINHA & ORS

January 24, 1972

M. SHELAT

H. R. KHANNA, JJ.

s. 3

Commissions of Inquiry Act, 1952

Section 3(1)

Commissions of Inquiry Act

Searchlight of Patna

March 14, 1948

March 25, 1968

Searchlight

[1969] 2 S.C.R. 649

S. 3(i)

March 12, 1968

Patna High.Court

Basudev Prasad Sinha

B. P. Jha

Sammbhu Nath Jha

January 2, 1966

Lachho Paswan

Dwarka Paswan

Kedar Prasad

Ariun Pandey

Saif

Dwarka Paswain

Mukhia

sections 148 and 302

section 149

I.P.C

Arjun Pandey

Atjun Pandey

Kedar Prasad

Additional Sessions Judge, Monghyr

Kcdar Prasad

September 18, 1967

October 6, 1967

Bihar

Abani Kumar Ma

T.

L. Venkatarama Aiyer

section 3

Inquiry Act, 1952

Hasibur Rahman

January 28,

1968

Hasibur Rahman

Kedar Prasad Sinha

Munsif-Magistrate, Jamui

17th August, 1967

30th August, 1967

Hasibur Ral11m111

10th September, 1967

Kedar Prasad SWia

State of Bihar

Bihar Government

Subhash Chandra Sarkar

Awadesh Kumar Tiwari

Basudev Prasad

India

Supreme Court

P. C. Sen

Jins

section 3

Commissions of Inquiry Act

section 3

March 12. 1968

SINHA (Khanna

section 3

Commissions of Inquiry Act

Hasibur :Rahman

Patna High Court

Orissa

section 3

Commissions of Inquiry Act

section 3


M/S. mTHMULL BBOJRAJ

STATE OF BmAR a ORS.

January 25, 1972

[K. S. HEGDE, P. JAGANMOHAN REDDY AND D. 0. PALElWl, JI.]

Lrmd Acquialtion Act (1 o/ 1874), u. 9 and 11-&o,. of.

In 1954 the lands in dispute were notifted under the Indian Act, 1927. Later, in order to acquire and include them in the adloinln.2

Government forest, GoVel'llment notified them under s. 4 of thi Lani!

Acquisition Act, 18!>4. Government also took action under s. 17(4) of the Act, dispenaed with the proceedings under s. SA, and iuued the nol!Acation under s. 6. Thueafrer, proceedings were taken under 91. 9 and 11, but Government decided that it was not worthwhile to acquire the entire area and withdrew some of the lands from acquisition. .

The appellant moved the High Court unsllCCelSfully, under Art. 226, for directions to award him compensation in reapect of those lands also.

ID _appeal to this Court, it waa contended that: (1) Since the Govern ment had taken possession in 1954, Government became full ownen of the lands when notifications were issued under. s. 6 of the. Land Acquisition Act; and (2) the lands had been actually taken ok>o of by the Col lector under s. 17 (I) and Gl!Vemment became full owners when pnblic notice was aiven under s. 9(1).

Dismissing the appeal,

HELD : (I) There waa no satisfactory eVidence to show that the Government had taken possession of the lands in 1954. Therefore, tho High "Court was justified in not pronouncing on the question in a petition under Art. 226.

(2) (a) Under s. 17(1) the Collector cannot take poaaeuion unlea F Government directs him to do so. There is no material on record to show that Government had given any such direction, nor is there any material to show that theCollector had taken possession under s. 17(1). U960-H]

Lt. Governor of Himachal Pradesh v. Avlnash Sharma, (1971) I S.C.R. 413, explained and distinguished.

(b) The expression 'whenever the appropriate Government ao directs' G in s. 17(1) refers to the taking df possession and not to the declaration of urgency. But even in caaes of urgency, Government may not think it necessary to take immediate profession. Hence, it could not be said that on the expiry of 15 days from the publication of the notice under s. 9( I), the lands had vested in the Govel"nment. [198 G-H; 199 ArC)

CIVIL APPELLATE JURlSDlCTION : C.A. No. 379 and 741 of 1967.

Appeal from the judgment and order da~ October 14, 1966 pf the Patna High Court in CivilWrii 1qrisdi~~ c.& No. 434 1111d 435 of 1966,

R. K. Garg, S. C. Agarwal and D. P. Singh, for the appellant (in C.A. 741 of 1967)

A. K. Sl!h, R. K. Garg, S. C. Agarwal and D. P. Singh, for the appellant (in C.A. No. 379 of 1967)

Niren D~, Attorney General for India, D. Goburdhun, for the respondents (in both the appeals).

The Judgment of the Court was delivered by

Hegde, J; In tb, ese appeals by certificate, the only question that arises for decision is whether on the facts and in the circumstances of these cases, .the G_overnment oi Bihar was competent to withdraw fromacquisition certain lairids sought to be acquired under Acquisition Cases Nos. 3 and 4 of 1959-60 before the Additional Land Acquisition Officer, Hazaribagh.

The lands concerned in these cases were notified for acquisition in _1959 under s. 4 of the Land Acquisition Act, 1894 (to be hereinafter referred to as the Act) under two different notifications.

At abOut the same time, the Government also took action. under s. 17 (4) of the Act , and 4ispensed with proceedings under s. SA. Simultaneously. notifications under s. 6 were also issued.

Thereafter proceedings under ss, 9 and 11 were .taken.

Whcm the acquisition proceedings were pending before the Land Acqub sition Officer, the Government withdrew from acquisitioo some ol the lands earlier notified under ss. 4 and 6.

Consequently the Land Acquisition Officer excluded the comp insation jn: respect of those lands from the computation made b) him CJ.flier.

The appellant (common appellant in both the appc tis) )l&g aggrieved by that exclus_ion moved the High Court of Patna under Art. 226 of the Constitution seeking directions from _that court to the Land Acquisition Officer to award him compensation in respect of those lands as well.

The High Court rejected those writ petiti0111S.

Hence these appeals.

The lands in question are situate in the villages of Telaiya and Debipur.

On June 11, 1948, they were notified under ss. 14 and 21 of the Bihar Private Forest Act, 1947.

Thereafter they were again notified under s. 29 of the Indian Forest Act in 1953 and 1954.

L'ater on the Government felt that in order to include those lancls in the adjoining Govemment forest, it would be necessary to acquire them.

Consequently they were notified for acquisition.

But after the lands in question were tentatively valued, the-Government thought that it was not worthwhile to acquire entire area notified for acquisition.

Hence it withdrew from

acquisi!ion~ ·ubs!antial port!<in of lands notified for acquisitiqn,

- These in bnef are the matenal facts.

JETHMULL v. BJHAR (Hegde, J.) 195

The allegation of the appellant is that after the lands in question were notified under s. 29 of the Indian Forest Act, the Forest Departme.nt unlawfully took possession of those lands and continued to be in possession ol. the same and therefore when notifications under s. 6 were issued, the Government became the owner of those lands and thereafter, it was not competent for the Government to withdraw from acquisition any of the lands notified under s. 6.

Alternatively it was contended that the Government became the full owner of those lands when the Collector caused ·

a public notice to be given under s. 9(1) of the Act. Lastly it was contended that the lands in question had been actually taken possession of by the Collector under s. 17 (1) of the Act and hence they vested in the Government.

The Government of Bihar has denied all the above allegations. It denied that the Government took possession of the lands in question in 1954. It further denied that those lands had been taken possession of under s. 17 (1). The Government denied the allegation of the appellant that it became the owner of the lands in question either when notifications u.nder s. 6 or notices under s. 9 ( 1) were issued .

. The High Court was not satisfied from the evidence adduced by the appellant that the Government had taken possession of the lands in question in 1954. It thought that this was a disputed question of fact and on the material before it, it was not possible to decide that question conclusively and hence it declined to pronounce on that question.

The High Court repelled the contention ol. the appellant that possession had been taken under s .. 17(1). It Plso did not accept the contention of the appellant that on the issue of :notices under s. 9 (1), Government had become the owner of the lands in question. In the result the High Court dismissed the writ petitions.

The very contentions taken before the High Court were repeated in this Court.

Now comi.ng to the question whether the Government took possession ol. the lands in question in 1954, it was conceded that the Government was not competent to take possession of those lands either under the notifications issued under ss. 14 and 21 of the Bihar Private Forest Act 1947 or under the notifications issued under s. 29 of tl!e Indian Forest Act. The case of the appellant is that the Government runlawfully took possession of the properties. In support of that contention reliance was mainly placed on the letter written by the Divisional Forest Officer, Kodarma Division to lbe Range Officer, Kodarma on October 1, 1958 as well as on t'1e requisition sent to the Land Acquisition Officer by the same

9ffi_cer.on January 24, 1959 (Annexure II). The concerned

Divisional Forest Officer was one Brij Mohan Prasad. In the A letter in question he stated :

"The forest in the above villages are in possession of the Forest Department since sometime past .•. "

In the requisition again, he mentioned :

"The land was previously notified under s. 29(3) of the I.F.A. and it was demarcated and possession taken.

Later on it was found that the land in question was raiyati, it was necessary to acquire under the Land Acquisition Act."

In para 12 of that requisition, be further stated:

"it is already under possession and this is to be formally handed over immediately."

This Officer has filed an affidavit before the High Court.

Therein he explained that he made the statements illl question D under an erroneous impression that the Government came into possession of the lands in question in view of the notification issued under s. 29 of the Indian Forest Act.

This statement of his receives support from his letter written to the Land Acquisition Officer on August 11, 1959 wherein he mentioned :

"With reference to your above letters, I have to say that Debipur Forest was notified under the Indian Forest Act on the 8th December, 1953 and that of Telaiya on the 22nd November. 1954.

Thus, date of

possesion is 8th December, 1953 and 22nd November 1954 respectively."

It is possible that this officer had an erroneous impression as

to the effect of a notification under s. 29 of the Indian Forest Act.

The other documents relied on by the appellant are wholly inconclusive.

Hence there is no need to refer to them.

We are in agreement with the High Court that there is no satisfactory evidence to show that the Government had taken possession of G these lands in 1953 or 1954.

As the parties had not enough opportunity to adduce evidence on this point, we will not be justified in finally deciding this question.

It is sufficient if we say that on the material on record, the Hiirh Court was justified in not pronouncing on this question in a petition under Art. 226 of the Constitution.

It is open to the appellant to seek such other H remedy as may be available to him under law if the Government had unlawfully taken possession of those lam.ds.

The question whether the Government had unlawfully taken possession of those

JBtllMULL v. lintAR (Hegde, J.) 197

lands in 1954, as we shall presently see, is wholly irrelevant for the decision of these appeals.

The next point that arises for decision is whether delivery of the lands notified for acquisition was taken under s. 17 ( 1) as contended by the appellant. The Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under s. 16 or Ui!lder s. 17 ( 1) .

Both thase provisions provide that when the Collector takes possession WJ.der those provisions, the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those pxovisions, the lands notified for acquisition: do. not vest in the Government. Section 48 ( 1 ) of the Act provides : ·

"Except in the case provided for in section 36, the 'Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken."

Section 36 is not relevant for our present purpose.

Possession referred to in s. 48 necessarily is the possession taken either Utllder s. 16 or under s. 17(1). Section 17(1) says:

"In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the lll9tice mentioned in section 9 sub-section (1 ) , take possession of any waste or arable land needed for public purposes or for a Company.

Such land shall thereupon vest absolutely in the Govemment free from all encumbrances."

Ordinarily possession of any land notified for acquisition is taken when the Collector had made an award under s. U and not before it.

But an exception is provided under s. 17 (J). In cases ol urgency, if the G<ivernment so directs, the Collector may, though illO award has been made under s. 11, on the expiration of the 15 days from the publication of the notice mentioned in s. 9 (1 ) take possession of any waste or arable land and the land shall thereupon vest. absolutely with the Government free from

al.I encumbraJlce$. From this proviion, it is plain that the Collector cannot take possession of the land in question u.nless th, e Government directs him to do so.

The Government can direct him to do so only in cases of urgency.

Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice

under. s. 9 ( 1). There is no material oo record to show that: the A Government had given to the Collector any direction under s. 17 ( 1); nor is there any material to show tha!_ the lands iin question had been taken possession of by the Collector under s. 17 ( 1 ) .

It is true that in the order-sheet maintained by the Land Acquisi-.

tion Officer, a note was made on October 17, 1959:

"Shri B. J. Yadav Kgo, to deliver possession at the spot to the representative of the R.0. on 16-11-59 Draft addressed to R.0. is signed." ·

But there is nothing to show that this order was implemented.

According to the respondent this order was not implemented. . , .

Rel)ing on the decision of this Court in Lt. Governor of Himacha/ Pradesh v. A vinash Sharma (1) it was contended by Mr.

R. K. Garg, the learned Counsel for the appellant that once it is established that the possession of the land notified for acquisition

was taken in 1953 or 1954, it was unnecessary for his client to establish that a.ny possession was taken under s. 17(1.). Aceord- J)i ing to him on the expiration of 15 days after the issue of notices u:nder s. 9 O), the lands in question vested in the Governuient.

The decision in question does not lend any support for this C011tention. In that case not oruy the property had been taken possession of by the Government even before the acquisition proceedings had started but appropriate proceedings under s. 9 ( 1) and s. 17 ( 1) were also taken though there was no actual taking

E ! of possession under s. 17(1).

Under those .circumstances this Court observed :

"In the present case a notification under s: 17 ( 1) and ( 4) was issued by the State Government and possession which had preVJously beelll. taken must, froni the1 date of expiry of fifteen days from the publicatii>n of the notice under s. 9 (1), be deemllji to be the possession of the Governmen).

 In the present case, as mentioned earlier, o aaterfal .has, been placed before the Court to show that'actio11.unclcr s.17(1) had been taken. . .:

It was next contended by Mr. Garg and Mr. A.· K~ sen, th.Iii the expression ''whenever the appropriate government so dir@" in s. 17 (1 ) refers to urgency not to the taking of possession of the lands notified for acquisition.

Their'. further ~1ion; was that no sooner the Government issued the notificati"11 ll1!der s. 17 ( 4), the factum of urgency was established and hence , clD ttiO 1' expiration of the fifteen davR from the publication of notide 1'!ili:lt'

(I) [1971] !.S.C.R. 413:

JBTHMULL v. BIHAR (Hegde, I.) 199

s. 9 ( 1 ) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of s. 17 ( 1). In our judgment s. 17 (I) is pl am and unambiguous.

The expression "whenever the approprite gevernment so directs" in that section refers to the taking of possession and not to the declaration of urgeincy.

Even in case of urgency, the Government may not think it necessary to take immediate possession for good reasons.

Neither the language of s. 17 ( 1) mor public interest justifies the construction sought to be placed by the learned Counsel for the appellant.

For the reasons mentioned above, these appeals fail and they are dismissed;'but in the circumstances of the case, we direct the parties to b_ear their own costs in these appeals.

Before concluding 'th\' case, it is necessary to record the assurance given by the Attorney-General on behalf of the State Government of Bihar that the Government of Bihar will not realise from 'the appellant any interest on the loans advanced for the development of the lands notified for .acquisition in the two Land Acquisition cases from the dates they were notified under s. 29 of the Indian Forest Act. A Memo. to thai effect has been filed.

V.P.S. . .

Appeals dismissed.

M/S. mTHMULL BBOJRAJ

January 25, 1972

K. S. HEGDE

P. JAGANMOHAN REDDY

Lrmd Acquialtion Act

Indian Act, 1927

s. 4

s. 17(4)

s. 6

Art. 226

s. 6

Land Acquisition Act

s. 17

s. 9(1)

Art. 226

s. 17(1)

s. 17(1)

s. 17(1)

s. 9( I)

R. K. Garg

S. C. Agarwal

D. P. Singh

A. K. Sl!h

Niren D~

D. Goburdhun

Hegde

s. 4

Land Acquisition Act, 1894

s. 17

s. 6

ss. 4 and 6

High Court of Patna

The appellant (common appellant in both the appc tis) )l&g aggrieved by that exclusion moved the High Court of Patna under Art.

Art. 226

Telaiya

Debipur

June 11, 1948

ss. 14 and 21

Bihar Private Forest Act, 1947

s. 29

Indian Forest Act

s. 29

Indian Forest Act

s. 6

s. 6

s. 9(1)

s. 17

Government of Bihar

s. 17

s. 6

s. 9

s. 9

ss. 14 and 21

Bihar Private Forest Act 1947

s. 29

Indian Forest Act

Kodarma

October 1, 1958

January 24, 1959

Brij Mohan Prasad

s. 29(3)

s. 29

Indian Forest Act

22nd November. 1954

s. 29

Indian Forest Act

Art. 226

s. 17

s. 16

s. 17

Section 48

section 36

Section 36

s. 48

s. 16

s. 17(1)

Section 17(1)

section 9

s. 17

s. 11

s. 9

s. 9

s. 17

s. 17

October 17, 1959

B. J. Yadav Kgo

R. K. Garg

s. 17(1.)

s. 9

s. 9

s. 17

s. 17(1)

s. 9

Garg

A.· K~ sen

s. 17

s. 17

s. 9

s. 17

s. 17

s. 17

Bihar

s. 29

Indian Forest Act


MAHARASHTRA STATE ELECTRICITY BOARD AND THE

STATE OF MAHARASHTRA

NAGPUR ELECTRIC LIGHT AND POWER COMPANY LTD.

&ANR. .

January 1, 1972

(S. M. S!KRI, C.J., J. M. SHELAT, I. D. DUA, H. R. KKAN:<:A

AND G. K. MITTER, JJ.)

Indian Electricity Act 1910, S. 4(3)-A11iendnie11t of tenns & co11di tions of Nagpur , Electricity Licence-Validity of a1nend111e; nt niadc in 1.966--Lega/ity of notice undet s. 6 of Act for purchase of undertaking by Electricity Board.

On May 4, 1905 a J:ccnce was granted under s. -lll) of the Indian Electricity Act, 1903 to Crompton & Co. Ltd. for 1 he supply of electricity in the municipal area of Nagpur.

A notification gnint:ng the above license was published in the Central Provinces Gazette on May 6. 1905.

The lic:cn'.!e provideCi that the right of the governtncnt to purchase the undertaking &hall arise after 42 years from the conimencen1ent of the license and aft!!r every, subsequent period of 10 years.

Para 4 of thr license provided that it '"'oul<l come into force c.tnJ have effect on the day \Vhen the notification confirming it was published in the Central Provinces Gazette and that <lay would for the purpose of Act, be deemed to be the c'ommcnccment of the license. On January 1. 1911 the IncYan Electricity Act, 1910 came into force.

On June 28, 1913 a notificatio:i permitting the assignn1ent of the licence in favour of the Nagpur Electric Light and Power Company Ltd, (respondent herein) was published in the gazette.

On May 2. 1947 amendments in the -terms and conditions of the licence were made under s. 4(3) of the Act of 1910 and were published in the gazette.

In the preambJe it was stated that these a1nendments were "in •he terms and conditions of the Nagpur Electric:ty licence

grante~. under the Public Works Dept!.

Notification No. 45 dated 4th May 1905 .......... " fa the various amendments made throughout the reference 'was made to May 4. 1947 as being the date when various changes were deemed to start or operate. In clause 3 paragraph ( o) (i) was provided that "Option of purchase given by sub-section 1 of section 7 of the Act shall be exercisable on .the expiration of ten years or 4th May

1957 and the expiration of every subsequent period of ten years during continuance of this licence." On September 4, 1948 the Electricity Supply Act, 1948 came into force.

Section 71 of this Act provided that the rit and options to purchase under the Indian Electricty Act. 1910 were deemed to have been transferred to the Provincial (now State) Electricity Board. The Indian Electricity Amendment Act. 1959 (32 of 1959) amended Indian Electrictv Act. 1910. In the newly inserted section 4A(l) t.he proviso thereto said that no alterations or amendments in the

license shall be made except with the consent of the lisensee unless such consent was in the opinion of the State aovernment unreuo.ably with held.

In the amended Act section Ii provided for the purchase of th<" licensee's undertaking by the State Electricitv Boa...t. but the old section 7 was allowed to continue.

On Se!>tember 15, 1965 notice w1s g; ven to the resrondent under sub-section (I) and sub.-tion (61 of section 6 ' of the Indian Electricity Act, 1910 whereby the respondent was required

to sell its undertaking to the Board on the midnight of 3rd/4th May, l 967 being the date of the expiry of the licence granted to it. Doubts arose as to the interpretation of clause 3 paragraph (o) (i) of the licence because of the use of the word 'or' between words 10 years and "the 4th May. 1957" in the said clause. The State Government on April l 9, 1966 published a notification whereby in the said clause between the words "IO years" and "the 4th May, 1957" the \\-'Ord "on" was substituted, the effect of which was that the option to purchase became exercisable on the expiration of period of 10 years on the 4th MaY. 1957.

After this amendment another notice was given under sub-section ( 1) and (6) of s. 6 of the Indian Electricity Act, .J910 on April 26, 1966.

The \VOrds of this notice were the same as that of the earlier notice but it \\'as expressly given in supersession of the earlier notice.

The respondent filed a \\'fit petition under article 226 of the Constitution challenging the aforesaid notice dated April 26, 1966. The High Court held that since the operation of Jicense con1menced on May, 6, 1905 it could not terminate on May 4, 1957 and therefore the amendment of 1966 was invalid.

Jn appeal to this Court it was comn1on ground that the licensee had never replied to the letter of the State Electricity Board asking for its consent for the amendment of the licence in 1966 in tern1s of section 4A(l) of the Electricity Act.

HELD : (i) In the circumstances of the case there could be no doubt that the State Government was entitled to hold the opinion that the consent of the licensee for the purchase of undertaking had been unreasonably withheld. r27 El

(ii) Two interprctzitions were possible of clause 3 paragraph (o) (i) of the license. as it existed before the amendme-nt dated April 19, 1966.

One was that !he \\'Ord 'or' had been \\'rongly use<l by some printing mistake and the true word was "on". The other interpretation was that two dates had been provided for the exercise of the option; one, the expirat:on of ten years from May 6, 1947 the other being May 4, 1957.

Thus there was genuine doubts about the real date and if the State Government sought to clarify the point it cannot be said that it made

an. unreasonable demand from the licensee.

It was not a case where governn1ent was providingfor the option to purchase which was not originally intended to be given. [26 F-HJ

(iii) The High Court was wrong in holding that May 6 was the relevant date becatise the notification relating to the original license was published on M'Y 6, 1905. When te license was amended in 1947 with the consent of the 1icensee it proceeded on the basis that the 42 vears period expired on Mav 3, 1947 because throughout the cruci<l effective date in the amendments is May 4, 1947.

Para 4 of the or'ginal license thus ceased to have effect for the purpose of construing the 1icense as amended in 1947 and subsequently.

(iv) If clause (3) paragraph (o) (i) is interprete~. in the light of the rest of the amendments made in the license in 1947, it is quite clear that the previous period was deemed to have expired on Mav 3, 1947 and the fresh period started on Mav 4, 1947 and the $ubsequent periods of 10 vears ended on Mav 3. 1957 and Mav 3. 1967. lt is impo'5ible to read the license as amended in 1947 in any other wav than that it was agreed that the ueriod of 10 vears in the license would start from Mav 4. 1947. 'Tlie details of distribution svstem, the valuatiofl of assPts as on Mav 4, 1947 and other clauses all point to this conclusion.

The license riehtlv talked of Sec. 7 of the Electricity Act because the license stHl provided for the start of period of 10 years from May 194 7 and

( . .

MAHARASHTRA ELECT. BOARD v. NAGPUR ELECT. CO. ~T (Sikri, C.J.) A this could only be proyided for while the old sec. 7 stood. The notice dated April 26, 1966 was thus in accordanee with terms of the license and the Jaw.

The impugned notice did not suffer from any infirmity.

The appeal n.ust accordingly be allowed. [280-HJ

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1429 & 1764 of 1968.

Appeal from the judment and order dated the 26th April, 1967 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 125 of 1967.

Niren De, Attorney-General for India, A. G. Ratnaparkhi, C. K. Ratnaparkhi and Rajiv Shah, for the appe!lant (in C.A. No.

C 1429 of 1968) and Responde11t No. 3 (in C.A. No. 1764 of B68.

M. C. Setalvad and/. N. Shroff, for respondents Nos. 1 and 2 (in C.A. No. 1429 of 1968).

B. D. Sharma, for respondent No. 3 (in C.A. No. 1429 of 1968).

V. S. Desai, P. K. Chatterjee and B. D. Sharma, for the appellant (in C.A. No. 1764 of 1968).

S. /. Sorabjee and /. N. Shroff, for respondents Nos. 1 and 2 (in C.A. No. 1764 of 1968).

E S. I. Sorabjee, Ashok H. Desai and R. P. Kapur, for intervenar

No. 1 (in both the Appeals).

R. N. Banerjee and R. P. Kapur, for Intervener No. 2 (in both the Appeals).

The Judgment of the Court was delivered by

Slkri, C. J.

These two appeals by certificate are d; rected against the judgment of the High Court of Bombay ( Abhyankar and Paranjpe, JJ). By this judgment the High Court came to the conclusion that the notice dated April 26, 1966, issued by the Maharashtra State Electricity Board under the provisions of s. 6 G of the Indian Electricity Act, 1910, was invalid in law and was unenforceable having failed to satisfy the essential conditions of the notice.

The High Court accordingly allowed the petition under art. 226 of the Constitution and quashed the said notice.

The relevant facts for determining the points at issue before us are as follows : On May 4, 1905, a licence was granted H under s. 4(1) of the Indian Electricity Act, 1903, to Crompton & Co. Ltd., London, for the supply of electricity in the municipal area of Nagpur.

A notification granting the above licence was

SUPREMF. COURT REPORTS

[1972] 3 S.C.R.

published in the Central Provinces Gazette on May 6, 1905. On A January I, 1911, the Indian Electricity Act, 1910, came into . force. On June 28, 1913 a notification permitting the assignment of the licence in favour of the Nagpur Electric Light and Power Company Ltd., respondent before us, was published in the gazette.

On May 2, 194 7, amendments in the terms and conditions of the licence made in exercise of the powers conferred oy sub-s. (3) of B s. 4 of the Indian Electricity Act, 1910, were published. In the preamable it was stated that these amendments were "in the terms and conditions of the Nagpur Electricity Licence, granted under the Public Works Department Notification No. 46, dated the 4th May, 1905 .... " In the various ameindments made throughout, reference was made to May 4, 1947, as being the date when various C changes were deemed to start or operate.

For instance, in clause 2 paragraph ( v) the expression "deposited map" was defined as follows :

"2(v) the expression "deposited map" shall mean the plans and statements showing

(a) the area of supply;

(b) details of distribution system laid and in use as on 4th May 1947;

( c) additions or alterations. or both to existing distribution system as on 4th May 1947 .... "

A.1tain clause 2 paragraph (ix) defined the expression "Nett Book

V aloe" to. mean the written down value of the assets as on May 4, 1947. In clause 3 paragraph (b)(ii) it is provided that "nothing in this licence shall be construed to prevent the Great Indian Peninsula Railway, the Bengal Nagpur Railway or the Provincial F Government or the Central Government from taking from the Government a supply of electrical energy for its exclusive use within the area of supply for new installations set up by them after 4th May, 1947". Jin clause 3 paragraph (d) it was provided that "the licencee shall, within six months from the 4th May 1947, reduce its retail rates for the supply of energy for various G purposes to its consumers .... " In clause 3 paragraph (e)(i)

(b) it was provided that the "continuous current system shall bie in use for a limited period of 5 years up to 4th May 1952; or such longer period as the Government may direct. ... " It was

pro"ided further in clause 3 paragraph (f) (vii) as follows :

"It is desirable that the existing distribution system viz. as on 4th May, 194 7 should also conform with the foregoing in all respects .... "

MAHARASHTRA ELECT. BOARD V. NAGPUR ELECT. CO.

(Sikri, C.l.) 23

A In clause 3 paragraph ( o) (i), which is the clause which we hav~

to interpret, it was provided as follows :

"The option of purchase given by sub-section ( 1) of section 7 of the Act shall be exercisable on the expiration of ten years or 4th May 1957 and the expiration of every subsequent period of tenyears during the continuance of this license." We may mention that there was some debate before us whether the word "or" in this para was a misprint for "on". We checked up the original and it is common ground that the word in the original license is "or" and not "on".

In 'the first annex~ headed "Compulsory Works" (5ee Clause C 3 of the License) it is provided that the "existing distribution system together with transformers and control gear as laid in use on 4th May 194 7 in streets and roads delineated in the deposited map shall be the Compulsory Works for purposes of the section."

On September 10, 1948, the Electricity (Supply) Act, 1948, came i.nto force. We need only notices. 71 of this Act under which D the rights and options to purchase under the Indian Electricity Act.

1910 were deemed to have been transferred to the Provincial (now State) Electricity Board.

The Indian Electricity (Amendment) Act, 1959 (32 of 1959) amended the Indian Electricity Act, 1910. We need only notice E the insertion of new section 4A ( 1) at present. This reads :

"4A. Amendment of licensees.-(1) Where in its opinion the public interest so permits, the State Government, on the application of the licensee or otherwise and, after consulting the State Electricity Board, and if the licensee is not a local authority, also the local authority, if any, concerned, may make such alterations and amendments in tenns and conditions of a license, including the provisions specified in section 3, sub-section (2), clause (f), as it thinks fit : Provided that no such alterations or amendments shall be made except with the consent of the licensee unless such consent has, in the opinion of the State Government, been unreasonably withheld." The purchase of undertakings is to be regulated by s. 6 which reads :

"6. Purchase of undertakings. ( 1) Where a license has been granted to any person, not being a local authority, the State Electricity Board shall,- ( a) in the case of a license granted before the commencement of the Indian Electricity (Amendment)

Act •. 195?, on te expiration of each such period as is specified m the license; ..... .

have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the undertaking lb it at the expiry of the relevant period referred to in this sub-section."

Sub-section ( 4) of s. 6 provides that "if the State Eleciricity Board intends to exercise the option of purchasing the undertaking under this section, it shall send an intimation in writing of such intention to the State Government at least eighteen months before c the expiry of the relevant period referred to in sub-section ( 1) and if. no such intimation as aforesaid is received by the State Government the State Electricity Board shall be deemed to have elected not to purchase the undertaking. Sub-section (6) of section 6 provides that "where a notice exercising the option of purchasing the undertaking has been served upon the licensee under this section, the licensee shall deliver the undertaking to D the State Electricity Board, the State Government or the local authority, as the case may be, on the expiration of the relevant period referred to in sub-section ( 1) pending the determination and payment of the purchase price". Under sub.s. (7), s. 6, "where an undertaking is purchased under this section, the purchaser shall pay to the licensee the purchase price detertniiled in accordance with E the provisions of sub-section ( 4) of section 7 A".

On September 15, 1965 notice was given to the respondent under sub-s. ( 1) and sub-s. ( 6) of s. 6 of the Indian Electricity Act, 1910,. as follows :

"I aril directed to give you notice that t'fte Maharashtta State Electricity Board has decided to pµrcqase yo11cr Electricity Oi1dertaking at Nagpur (District Nagpur) in exercise of the option t<:> purchase vested in the Board by sub-section (1) of section 6 of the Indian Electricity Act, 1910, and to require you to sell your said undertaking to the Board on the midnight of 3rd/ 4th May 1967 being the date of expiry of the license granted to you by the Government under the said Act and also to call upon you under sub-section ( 6) of Section 6 of the said Act to deliver the said undertaking to the Board on the s'aid date of expiry of the said license pending determination and payment of purchase price."

Doubts arose as to the interpretation of clause 3 paragraph ( o )( i) of the license, which we have set out above. The State

MAHARASHTRA ELECT, BOARD v. NAGPUR ELECT. CO. 25 (Sikri, C.l.)

A Government, therefore, decided to amend the para so as to re move any doubts that there might be on the matter, and on April

19, 1966, published a notification which reads as follows :

"Whereas as required by sub-section ( 3) of Section 4-A of the Indian Electricity Act, 1910 (II of 1910) a draft of the further amendment proposed to be made by the Government o~ Maharashtra in the terms and conditions of the Nagpur Electricity License, granted by the Government of the Central Provinces, Public Works Department, Notification No. 46, dated the 4th May, 1905, as subsequently amended, was published in Government Notification, Industries and Labour Department No. LNA-(M)-1265/8126-Elec. 1, datd the 4th January, 1966, for inviting objections and suggestions : And whereas no objections or suggestions have been received by the Government of Maharashtra : And whereas the Government of Maharashtra has consulted the Maharashtra State Electricity Board and the local authorities concerned and obtained the consent of the Central Government.

And whereas the Government of Maharashtra also requested the Licensee, the Nagpur Electricity Light & Power Company Limited, to give its consent to the proposed amendment, as required by the proviso to subsection (I) of the said sctiOil 4-A but, in the opinion of the Government of Maharashtra, such consent has been unreasonably withheld : And whereas in the opinion of the Government of Maharashtra, the Public interest so permits to make the proposed amendment :

Now, therefore, in exercise of the powers conferred by the said section 4-A and of all other powers enabling it in this behalf, the Government of Maharashtra hereby amends the terms and conditions of the said licence, a~ follows :

In clause 3 of the license, in paragraph ( o) in subparagraph ( i) for the portion beginning with the words "shall be exercisable" and ending with the word and figures "May 1957" the following shall be substituted. namely :-

"Shall be exercisable on the expiration of the period of ten years on the 4th May 1957" 3-L864SuiiCl/72

.28 SUPREME COUIT llEPOltTS

After this amendment, another notio:e was given under sub-ss.

(1) and (6) of s. 6 of the Indian Electricity Act, 1910, on April 26, 1966.

The wording of this notice is similar to the notice dated September 15, 1965, which we have set out above. This notice was expressly given in supersession of the earlier notice.

While approaching the Central Government for its consent, 8 the Government of Maharashtra in its letter dated January 17, 1966, stated that "the draft aniendment seeks to remove the ambiguity, if any, .in respect of the date on which the option of purchase is exercisable under the Indian Electricity Act, 1910".

On November 10, 1966, the licensee, the Nagpur Electric Light and Power Company Ltd., filed the petition under art. 226 C challenging the aforesaid notice dated Apnl 26, 1966.

The High Court held that the amendments in the license made in 1947 were in order.

No serious challenge to these amendments has been made biefore us.

The High Court, however, seems to have held that the amendment of 1966 was invalid.

The first D question which we may deal with is whether the High Court is right in holding that the amendment of April 19, 1966 was valid or not. It is common ground that the licensee did not send any

reply to the demand of consent made by the State Government.

The question arises whether the licensee unreasonably withheld the consent~ It seems to us that in the circumstances of this case E there is na doubt that the State Government was entitled to hold the opfoion that the consent had been unreasonably withheld.

Two interpretations were possible of clause 3 paragraph ( o) ( i) of the license, as it existed before the amendment dated April 19, 1966. One was that the word 'or' had been wrongly used by some printing mistake and the true word was 'on'. The other F interpretation was that two dates had been provided for the exercise of the option; one, the expiration of ten years from May 6, 1947, the other being May 4, 1957. Thus there were genuine doubts about the real date and if the State Government sought to clarify the point it cannot be said that it made an unreasonable demand on the licensee.

Every licensee, under the Electricity G Act, 1910 <>r the earlier Act, knew that the statute gave an option to the State Government or a local authority or some board to purchase, and that option had to be exercised after the expiration of certain periods mCDlioned in the licence. So it was not a case where Government was providing for the option to purchase which was not originally intended to be given. We are unable to appreciate 11 the opinion of the High Court that the "amendment effected in 1966 stating that the option to purchase under the Act shall be exercinble on the expiration of the period of ten years on

<. ,. , ..

MAHARASHTRA ELECT, BOARD V. NAGPUJ. BLECT, (l(), 27 (Sikrl, CJ.) A 4-5-1957, is saying something wl!ich is meaningleu and wienforceable." The High Court seems to think that the period of 10 years starting with the commencement of tllat period on May 6, 1947 could never end on May 4, 1957, But this was exactly the reason why the amellldment was sought to be made in the license. May 6, 194 7 was a date which had no relevance once B the amendments of 194 7 are taken into consideration, Tbe amendments of 194 7 all the time speak of May 4, 194 7 and not May 6, 1947, The date May 6, 1947 was derived by the follow ing process of reasoning, The original license provided that "Che right to purchase (para (g)) the undertaking, in respect of which the license is granted, shall for the purposes of the provisions in c this behalf contained in the said Act enure after the fOllowing periods, that is to say :- ( i) after 42 years from the commencement of this Licence.

(ii) after every subsequent period of 10 years, The terms of such purchase as aforesaid shall be those D set forth in Section 7 of the Act."

Para 4 of the original license provided that "this License shall come into force and have etlect upon the day when a notification confirming it is published in the Central Provinces Gazette, and that day shall for the purposes of the said Act be deemed to be the commencement of this License". It is this para 4 tllat created E the dilliculty because although the notification is dated May 4, 1905, it was published on May 6, 1905. But wllm Ille 1iceme was .amended in 1947 with the consent of the lieensee it proceeded on the basis that tile 42 years period expired on May 3, 1'47, because throughoot the crucial eft'ective date in the IUllOIMfmeats is May 4, 1947, p

It seems to us that after the amendments para 4 of tbe origiaal licen!e ceased to have clfect fot the purposes of ooutruiog die license as amended in 1947 and subsequently,

This takes us to the question whether the notice dated April 26, 1966 is in accordance with law. For the sake of convenience G we may set out clause 3 paragraph ( o )( i) as amended :

"3(o)(i) The option of purchase given by subsection ( 1 ) of section 7 of the Act shall be exercisable on the expiration of the peri<id of ten years On the 4th May 1957, and the expiration of every subsequent period of ten years during the continuance of this license,"

It is th!l case of the licensee thai the date in the notice, viz. the midnight of 314th May, 1967, is not in compliance with law and the terms of the licence,

Mr. Sorabjee further submitted the following propositions :

( i) A day is regarded as indivisible period and the law does not regard fraction of a day;

(ii) , Person for whose benefit period :S prescribed is entitled to the bentfit. of the entire period.

(iii) Day of the happening of an event or the doing of an Act ought to be excluded rather than included.

(iv) Notice under s. 6 is a condition precedent and must be strictly construed.

He also referred to us some authorities in support of these pro c positions.

We need not quarrel with these propositions but the first three must be regarded as ordinary principles of construction and yield to the wording and the context of the instrument.

It seems to us that if clause 3 paragraph ( o )( i) is interpreted in the light of the rest of the amendments made in the license in 194 7, it is quite clear that the previous period was deemed to D have expired on May 3, 1947 and the fresh period started on M; zy 4, 1947 and the subsequent periods of 10 years ended on May 3, 1957 and May 3, 1967. It is impossible to read the licenso as P.mended in 194 7 in any way other than that it was agreed that the period of 10 years mentioned in the license would start from May 4, 1947. The details of distribution system (para 2 extracted E above), the valuation of assets as on May 4, 194 7 and other elauses extracted above all point to this conclusion.

It was pointed out that the license still talked of sec. 7 of the Electricity Act. Why was this not amended when it was U11der sec. 6, as inserted in 1959, that the option to purchase became exercisable ? It seems to us that it was rightly not amended be- 1 cause the license still provided for the starting of the period of 10 years from May 4, 194 7. This could only be provided for while the old sec. 7 stood.

It seems to us that the notice dated April 26, 1966 was in accordance with the terms of the licence and the law.

We accordingly hold that the impugned notice does not suffer from any infirmity. The appeals are allowed, the judgment of the High Court reversed and the writ petition dismissed. The parties will bear their own costs throughout.

Parties may mention on the 17th January, 1972 for passing any . consequential and/or essential order which may be necessary in the circumstances.

G. C.

Appeals allowed.

NAGPUR ELECTRIC LIGHT AND POWER COMPANY LTD. & ANR

M. SHELAT

I. D. DUA

G. K. MITTER, JJ.

Indian Electricity Act 1910

S. 4(3)

s. 6

May 4, 1905

Indian Electricity Act, 1903

Crompton & Co. Ltd.

Nagpur

May 6. 1905

January 1. 1911

IncYan Electricity Act, 1910

June 28, 1913

May 2. 1947

s. 4(3)

clause 3

section 1

section 7

4th May

1957

September 4, 1948

Electricity Supply Act, 1948

Section 71

Indian Electrictv Act

section 4A(l)

section 7

section 6

Indian Electricity Act, 1910

clause 3

April l 9, 1966

4th MaY. 1957

s. 6

Electricity Act

April 26, 1966

article 226

May, 6, 1905

section 4A(l)

Electricity Act

clause 3

Sec. 7

Electricity Act

sec. 7

Niren De

A. G. Ratnaparkhi

C. K. Ratnaparkhi

Rajiv Shah

M. C. Setalvad

N. Shroff

B. D. Sharma

V. S. Desai

P. K. Chatterjee

Sorabjee

E S. I. Sorabjee

Ashok H. Desai

R. P. Kapur

R. N. Banerjee

Slkri

High Court of Bombay

Abhyankar

Paranjpe

Maharashtra State Electricity Board

s. 6

Indian Electricity Act, 1910

art. 226

s. 4(1)

Indian Electricity Act, 1903

London

Indian Electricity Act, 1910

May 2, 194 7

s. 4

Indian Electricity Act, 1910

4th May, 1905

May 4, 1947

clause 2

clause 2

clause 3

Great Indian Peninsula Railway

Bengal Nagpur Railway

Provincial F Government

Central Government

4th May, 1947

clause 3

4th May 1947

clause 3

4th May 1952

clause 3

4th May, 194 7

clause 3

section 7

4th May 194 7

September 10, 1948

Indian Electricity Act, 1910

section 4A

section 3

s. 6

s. 6

section 6

s. 6

section 7

September 15, 1965

s. 6

Indian Electricity Act, 1910

Maharashtta State Electricity Board

section 6

Indian Electricity Act, 1910

Section 6

clause 3

April

19, 1966

Section 4

Indian Electricity Act, 1910

Government of the Central Provinces

4th January, 1966

Government of Maharashtra

section 4

clause 3

s. 6

Indian Electricity Act, 1910

January 17, 1966

Indian Electricity Act, 1910

November 10, 1966

art. 226

Apnl 26, 1966

April 19, 1966

clause 3

May 6, 1947

May 4, 1957

Electricity G Act, 1910

MAHARASHTRA ELECT

NAGPUJ. BLECT

Sikrl

Section 7

May 6, 1905

May 3, 1'47,

clause 3

section 7

Sorabjee

s. 6

clause 3

May 3, 1947

May 3, 1957

May 3, 1967

May 4, 194 7

sec. 7

Electricity Act

sec. 6

sec. 7

17th January, 1972