PARMAR HIMAlllNGH JUGATSD'IGH

PATEL Jb\RMA)IBHAI NAll.SIBHM

February ii. 1974.

[P, )If, BltAGWA'U''.tND ],';· K: ~AllU, JJ;]

Revm<11t•lion <Jf. lhe P'ople Act, 1951-s .. 33(5) ~1id 36(4)..,..ScoPe v/.

Tho appellallt challenged the electl.\Ofl of the -resPondot)I: t~ tbe Stole J\.ssem bly.

He_ alleged ; that at the. tiip.o .. of. ttie. srut_inv of nom1nat100. P8L?~I'$ th_e retitrnin"a. otfir _improperly rect¢ _the om1ation, pape_r ... of Oll; e of the tand1dates-: for the' election. The name of the r_e1ected can41date _was found, not on the electoral 'ri>Us of the constituency in which he hat! filed hiS non1ill3.tirin l)Opers, but on the rolls oranotPer: constituency .. Since his _name was •not corrtct1y printed-on the el(:ctoral rolls;_. he_ had obtained :a cogend, um to_.the electoral roll, a certified copy Of whic_h was . enclose.d with the nomin, ation P~r.

Objection having been raised b:Y the respondent, his nomina.tion P~.r . Was rejected on the ground that the provisions of s. 33(5) of the Repre'Sentation of People Act were not complied with inasmuch as he had not produced the certified conv of all the relevant entries in the electoral roll at the time of scrutiny of ihe nomination papers.

Section 33(5) of the Representation of the People Act providCS 'that where the candidate is an elector to a different constituency a copy of the electoral roll of that constituency or of the relevant part thereof Or a certified copy of the relevant entries of such roll shall, unless it has been filed .alon.'t with the nomination paper, be produced before the returning officer at the time of !itnitiny;

The High Court dismissed the election petition of the appellant.

Dismissing the appeal to this Court, HELD: Non-compliance withs. 33(5) is a defect of a_sUtantial c_haractcr aua is not covered by s. 36(4) of the Act. The Returning Officer rightly rejected the nomination paper and rejection cannot be held . to be impiope-r.

Evidently the rejected candidate is an elector be a different constituency. Tb.a1 being the position he could have complied witft .. s .. 33-(S) by folloing one .or the other of the three modes provided in that subsectlon namely : ( 1) he could have produced a copy of the electoral roll of constituency in which his name

ao_oeared, or (2) he could have produced a copy of the relevant part of the electoral roll of that constituency in which his name appears or ( 3) he could have prodUced a certified copy of the relevant: . entries in the electoral rotl Qf that constituency. He however selected the third mode by. enclosing a certified copy of the corrigendum to the electoral roll. [457 O.:-F; 459 C-D]

It is clear that the corrigendum did not furnish all the particulars which. would be available if a certified copy of the relevant .entries in the original electoral roll as well as the corrigendum were produced before the Returning Ofticer at the time of scrutiny. Since the original electoral roll may be corrected and amended it was. absolutely necessary for the satisfaction Of the Returning Officer that a certified copv of not only the original .electoral roli containin.: the relevant entry as also a certified copy of the amendment list conccrnin2 the candidate were produced at the time of scrutiny if this had not already been filed along with the nomination paper. [457 F-G]

Sr; Baru Rani v. ~!Vin1atl Prasanni & Others, [1959] S.C.R. 1403/14, 1421 and Narbada Prasad v. Cli/UJga1i I.al mid Ors. [1659] I S.C.R. 499/502, followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 297 of 1973.

Appeal from the Judgment and order of the Gujart High Court in Election Petition No. 7 of 1972.

K. RajenJra Cltaudlturi and P. C. Kapur, for the appellant.

V. B. Patel and H. s. Parihar, for the respondent,

The Judgment of the Court was deliverec! by

GoswAMI, J. This appeal under.section U6-A of the Representation of the People Act, 1951 (briefly the Act) is directed against the judgment of the High Court of Gujarat dismissing• the election petition of the appellant who is an elector from Mahudha constituency for the Guja; at State Legislative Assembly. The . appellant challenged the election of the respondent who had been <leclared duly elected to the State Legislative Assembly from this particular constituency in the general elections to the Legislative Assembly held in March

1972. The appellanfs principal ground of challenge was that at the time of the scrutiny of the nomination papers on February 9, 1972, the Returning Officer . improperly rejected the nomination paper of one Christian Suleman Jiyabhai (hereina(ter to be described for brevity as Jivabhai). Jivabhai was not an elector in the Mahudha co)lstituency of the Legislative Assembly.

He was an elector from Shahpur constituency in Ahmedabad city.

Along with the nomination form Jivabhai had enclosed a certified copy of the corrigendum to the Electoral Roll issued by the Registration Officer, who was officer incharge of preparation of the Electoral Rolls.

On objection being raised by the respondent the nomination paper of Jivabh~ was rejected on the ground that the provisions of section 33(5) of the Act were not complied with inasmuch as he had not produced a certified copy of all the relevant entries in the Electoral Roll before the Returning Officer at the time of scrutiny of the nomination papers.

What was produced was only the certified copy of the corrigendum issued by the Electoral Registration Officer which .showed the correction in the name of Jivabhai.

Originally, Jivabhai was shown in the Electoral Roll as Christian Soloman Jivabhai and by the correction shown in the corrigendum, the name of "Soloman"

\Vas substituted b'y the name ~'Suleman". The correct name, therefore, stands as "Christian Suleman Jivabhai" as a result of the corrigendum.

It appears that the practice of the Electoral Registration Officer is not to issue a corrected Electoral Roll very time some entry in the Electoral Roll is amended or corrected but the officer jssues corrigenda and amendment limits without making any alterations in the original Electoral Roll. The High Court accepted the objection with regard to the non-compliance of section 33(5) of the Act and rejected the nomination paper of Jivabhai.

The appellant contends that the High Court committed. an error of law in rejecting the nomination paper of Jivabhai in view of the provisions of section 36( 4) of the Act.

Section 33 provides for presentation of nomination papers and requirements for a valid nomination. We are concerned in this appeal with sub-section (5) of that section which may be quoted :

33 ( 5) "Where the candidate is an elector of a different constituency. a copy of the electoral roll of that constitu-

PARMA~ Hl1'(ATS!NG I' .. PATEL HARMANBHAI (Goswami, J.) 455

ency or of the relevant part thereof or a certified copy of the relevant entries in such roll s)lall, unless it has been filed along with the nomination paper,- be. produced heforc the ; returning officer at 'the time of rutlrry".

Section 36 pr_ovides for scrutiny of nomillations and \vc mf!Y 'tfflofc sub-section ( 4) of that section which is material.

36(4) 'The returning officer shall not reject any nomi nation paper on tho ground of any defect which is not of a substantial character".

Jn the present case, Jivabhai, whose non1ination paper \Vas rejected, submitted along with his nomination paper only a certified copy of the corrigendum of the particular entry in the Electoral Roll.

Since he was an elector of another constituency namely, Shahpur, and was contesting in the Mahudha co0:stituency, he was required under section 33 ( 5) to produce before the Returning Officer at the time of scrutiny either a copy of the Ele<:toral Roll of Shahpur con stituency or of the relevant part thereof or a certified copy of the relevant entries in the Electoral Roll of Shahpur constituency. In the instant case, Jivabhai preferred to enclose with his nomination paper a certified copy of the corrigendum of the Electoral Roll correcting his name therein. It appears that neither Jivabhai nor his proposer was present at the time of scrutiny of the nomination papers and, therefore, no other document was produced by him during scrutiny.

Even if he hall not earlier enclosed the relevant entries of the Electoral "Roll, it would have been in order if the same were produced before the Returning Officei: at the time of scrutiny. Section 36(7) provides as follows :

36( 7) "For the purposes of this section, a certified copy nf an entrv in the electoral roll for the time, being in force of a constituency shall bi; conclusive evid-oncc of the fact that lhe person referred to in that entry is an elector for that constituency, unless it is proved that. he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of -1950)".

The short question that arises for consideration in this appeul is whether the nomination paper of Jivabhai was improperly rejected by the Returning Officer. A certified copy, which was enclosed with the nomination paper, was as follows :-

"List of voters Qf Shahpur ward. of Gujarat State Legblativc Assembly for the year 1971, District Ahmedabad,

City Ahmedabad, Ward Shahpur-l, Part No. 38/84 continued.

l\Je1110r11n4um or List or -I Scrili1 Number in Name of Voter in Present uncorrcct- Entry to read as Voters List Votcn List. ed. entry in the corrected.

Voters List. 595 Christian Soloman Soloman Suloman Jivabhai Ahmedabad Sd/- G. B. Xhah, 28-1-1972.

Electroral Officer".

Before proceedin~ further it may be necessary to take note of .certain rules in the Registration of Electors Rules, 1960 (briefly tre Rules). Under rule 2(e) "'roll' means the electoral roll for a constituency".

Under rule 4 "the roll for each constituency shall be ; Prepared in such form and in such language or languages as the Election Commission may direct".

Under rule 5 (I), "the roll shall be divided into convenient parts which shall •be numbered consecutively". By rule 10 "as soon as the roll for a constituency is ready, the registration officer shall publish it in draft by making a copy thereof available for inspection and displaying a notice in Form 5" in the places specified in that rule.

Rule 11 provides for further publicity to the roll and notice. Rule f2 provides for lodging claims ; and objections. Rule 22 may be set out in full : 22 "Final publication of roll-( I ) The regi; tration ofticer shall thereafter- ( a) prepare a list of amendments to carry out his decisions under rules .18, 20, 21 and 21A and correct any clerical or printing error or other inaccurrancies subsequently discovered iri the roll; and

(b) publish the roll, together with the list of amendments, by making a complete copy thereof available for. inspection and displaying a notice in Form 16 at his office.

(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency. ('3) Where the roll (hereafier in this sub-rule . referred

to. anhe basic roll), together with th.e .list of amend: ments, beeomes the eltoral, roll. for a: cpnstltuency undei .sub'.'ru)e (2), t!\e, Registration '\llliccr may, for

the 'CQ'nyeilienc~ of :a1! conc'erned; jntegrte, ubjct to 'any general or 'speciat ilireetions t.su-id by the

Eletion' CofumlSsioil iri ille behalf, the list into the

ba5ic roll :bY iitduding the .. mimes of electors in the Us, t together with am partiCulars relating io. . such eleetots. in' the relevant parts of the . l)aic,, roll itse)f, 'so. :nowever'that 'no 'chaniie shall be made.in the pro'

ces~ ; IJf such integiatioii in 'the. name or itny electors or any rtjcuhits rera\jnil to any elector .. is given io

thcHist"of amendments''.· , Rule' 23 priYvidl!~ for appeals agrupst decisi, ons ·:of the 1legi5tratio11 'Oflket under nlle8"20; 21 , or 2 lA Under sub-tufe f<f) of that rµte ·"every del:ision Of' the 'iippellate olli.er' shall b~ final, but in so far

PARMAR HIMATSINGH v. PATEL HAJl.MANBHAI (Goswami, /.) 4~7

as it reverses .of modifies a decisioa of the tegiSlralilmndllicef,. shall take effect only from the date of the decision in api)oals" By sub rule ( 5) "the registration alliccr shall CllUBe; dil:h amendments to be ma@ in the roll as may be'iiecessary to gi~ effect to the deci•ions of the appellate officer under this rule".

Section 22 Of the Representation of the People Act, 1950, provides for oorrcction of entries in Electoral Rolls and Section 24 provides for apPeals against orders made under sections 22 and 23 of that Act in the manner prescribed' by_ the Rule&.-

From an examination of the above material provisions it is clear that the entries in the Electoral Roll may be corrected at different stages provided under the law and there is also provision for appeal against decisions of the Registration Officer.

At the time of scrutiny, the Returning Offier [\as to be satisfied about the identity of the candidates and will have to decide all objections with regard to the nomination paper. The scrutiny will have to be made by him carefully even if there is no objection raised against the nomination paper.

We are required to consider in this case whether Jivabhai has complied with section 33(5) of the Act.

Evidently he is an elector of a different constituency.

That being the position he could have complied with section 33(5) by following one or the other of the three modes provided in that sub-section, namely, ( 1) he could have produced a copy of the Elecoral Roll of Shahpur constituency, or (2) he could have produced a copy of the relevant part of tbe Electoral Roll of that constituency in which his name appears, or ( 3) he could have produced a certified copy of the relevant entries in the Electora1 Roll of that constituency.

He, however, selected the third mode by enclosing a certified copy of the corrigendum to the Electoral Roll.

It. is clear that the corrigendum does not furoish all the particulars which would be available if a certified copy of the relevnnt entries in the original Electoral Roll as well s the corrigeudum were produced before the Returning Officer at the time of scrutiny. Since the original Electoral Roll may be corrected and amended, even sometimes bY deleting some names, it is absolutely necessary for the satisfaction of the Returning Officer that a certified copy of not only the original Electoral Roll containing the relevant entry as also a certified copy of the amenliment list concerning the candidate are produced at the time of scrutinv. if the.se had not already been filed along with the nomination pper. fa th¥ instant case the candidate remained satisfied by jiling a .; ertified copy of only the corrigendum which did not satisfy the Returnin~ Ol!Wer as reards the.: ide11lity . of the candidate. When, therefore,_ t, he Returajitg Officer rejected the nomination paper, the, order can. '?e supported, on,!be g; ound tht a.cer\ified copy of the entry m the ongmal EleCtciral R, oll was not furmihed nlong with the certified .copy of the entry in the list of amendiru:nts. H cannot. therefore, be !iai<! .that the rejection of the nomiilaiion paper under section 36(2)(b) iihhis case is improper. In this con.netiori we may

refer to a decision of this Court in Sri Baru Ram v. Shri111aii P-rcoauni

and others( 1), where an identical question came up for consideration.

The following extract from the decision will be apposite :

"Su\J-section 5 of s. 33 deals with the stat: of the scrutiny of the nomination papers and it provides that where

acndidate is an elector of a different constituency, a copy or tJleelectoral roJI of that constituency or tl'e rclvant part

theroof or a certified copy of the relevant entry of such roll shall, unless it is filed along .with the nomination paper, be produced before the returning officer at tho time of the scrutiny. It is thus clear that when the stage of scrutiny is reached the returning officer has to be satisfied that the candidate is an elector of a different constituency and for ihat purpose the statute has provided the mode of proof.

Section 36, sub-s. (7) lays down that the certified copies which are required to be produced unde.r s. 33(5) shall be conclusive evidence of the fact that the person referred to in the relevant entry is an elector of that constituency.

In other words, the scheme of the Act appears to be that where a candidate is an elector of a different constituency he has w prove that fact in the manner prescribed and the production of the prescribed copy has to be taken as conclusive cvidc:tcc of the said fact ..... Section 33 (5i requires the candidate to supply the prescribed copy a.1d s. 3!i(Z) (b) provides that on his failure to comply wit.b tile said requirement his nomination paper is ]iable to be rejected.

Jn other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty

for his failure to do so.

In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of s. 33(5) is. not mandatory but is directory, because the statute itself bas made it clear that the failure to comply with the said requircinent leads to the rejection of th.e nomination paper.

Whenever the statute requires a particular act to be done in a particular manne.r and also :lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the a.rgument that the failure to c<>mply with the said requirement should .lead to any other consequence .....

There is no doubt that the essential object of the scrutiny of nomination papers is that the returning officer should be satisfied that the candidate who is not an elector in the constitllency in question is in fact an elector of a different constituency.

The .satisfaction of the returning officer is thus the matter of substance in these proceedings; and if the statute provides the mode in which the returning officer has

(t) ft959] S.C.R. t403/14t8-142t.

PARMAR HIMATSINGH v. PATEi. HARMANBHAI (Goswami, /.) 459

A to be satisfied by the candidate it is that mode which the candidate must adopt . , ... "

The same view was expressed by this Court in Narbada Prasad v.

Chhat?an Lal and Ors.( 1 ) :-

"There was no compliance with the provisions of s. 3315l of the Representation of the People Act and there was no power in the court to dispense with this requirement.

It is a well-understood rule of law that ii a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded';.

We are, therefore, clearly of the .view that non-compliance with section 33(5) is a defect of a substantial character and is not covered

by section 36( 4) of the Act. The Returning Officer in this case rightly rejected the aomination paper of Jivabhai 'and the rejccil0n

cannot be held to be improper.

In the result the appeal fails and is dismissed with costs.

P.B.R.

Appeal dismissed-

(I) [19691 (1) S.C.R, 4~/SOi.

s. 33(5)

Sentation of People Act

Section 33(5)

Representation of the People Act

s. 36(4)

CIVIL APPELLATE JURISDICTION

K. RajenJra Cltaudlturi

P. C. Kapur

V. B. Patel

H. s. Parihar

GoswAMI

Representation of the People Act, 1951

High Court of Gujarat

February 9, 1972

Christian Suleman Jiyabhai

Jivabhai

Shahpur constituency

Ahmedabad city

Jivabh~

section 33(5)

section 33(5)

section 36( 4)

Section 33

PATEL HARMANBHAI

Goswami

Section 36

Shahpur

section 33

Section 36(7)

section 16

Representation of the People Act, 1950

Registration of Electors Rules, 1960

Section 22

Representation of the People Act, 1950

Section 24

sections 22 and 23

section 33(5)

section 33(5)

section 36(2)(b)

section 5

s. 33

Section 36

s. 33(5)

Section 33

s. 3

s. 33(5)

s. 3315

Representation of the People Act

section 33(5)

section 36( 4)


STATE OF MYSORE

ANANT VINAYAK PATWARDHAN

Februan 26, 197~

[K. K. MA THEW AND A. ALAG!R!SWAMI, JJ. J

Bo111bay Merged Terri1ories Miscellaneous Alienation Abolition Act, 1955, Section 11-Tainat (Casli Allowance) granted to respondents ancestors by tlie Pesliwas-Allowa11ce co/ltinued b_v- Ruler of Ja1nkhandi under terms of 11eaty with East India Co.-S11bseque111ly Ruler of Jamkl1andi converted allow- '11lCe to one for Jife-Whetl1er, cash allowance payable was permanent and hereditar)'-Comtnutation amount whether deductible fro1n cash allowance for paynzerit of comve11sa1ion.

The respondent's ancestors had been granted a cash allowance called Tainat by the Peshwas. After the defeat of the Peshwas by the British, by the Treety of Gulgallee with Jamkhandi dated 6-6-1819 by the then Governor of Bomba1 on behalf of the East lndia Co. one of the terms which were granted to Gopalrao Jamkhandikar was rec(\rding the terms which he held from the Govt. of His Highness the Pesbwa, for the payment of his contingent (apparently army) out of his personal allowance. It stated that he was to continue all allowances and no complaints on this befl(l were to be suffered to reach the Government. The allowance to the resi, x>nden.t's ancestors was ooe such allowance. The extract from the Petha Khata wahi of 1942·43 shows that the grant was permanent.

Bl).t in 1944, the then Ruler of Jamkhandi converted the allowance to one for life.

After the Jamkhandi State was merged in the State of Bomba}', the Bombay Legislature passed the Bombay Merged Terri torits Miscellaneous Alienation Abolition Act, 19$5.

The respondent filed an application on 21·7·1956 under section 17 of that Act claiming that the cash allowance payable was both pennanent and hereditary but that he learnt that the Ruler of Jamkhandi had passed an order that the said allowance be continued till his (applicant's) life time when the same .was continued to him after the death of his father. He mentioned that he had moved the Rajasaheb by an application which was not disposed of. HeJ therefore, claimed that he wouJd be entitled to seVC}l times the cash allowance, permanent on the basi..'1 that it was permanent oi in the alternative to three tlfncs the ci&)t allowance on the basis that it was -payable for life. However, by this time, the Ruler of 1 amkhandi was no longer a Ruler and was not in a position to be of any assistance to the respondent on the basis of his application. The Aistant Commissioner of Jamkhandi passed en order granting a sum equal to three times the annual sum which the respondent was receiving.

On appeal by the respondent to the Appellate Tribunal, the Tribunal held that the Ruler of Jamkh•ndi had sovereign J)()Wer and was the fountain head of alt sources of authority, that is. executive, judiciary and legislature and be could change the Tainat cash allowance at his sweet will and pleasure. The Tribunal accordingly dismissed the appeal. ne respandent thereupon filed a writ petition before the High Court. The High Court directed that a sum equll . to seven times the annual ca"h allowance be paid to the resnondent on the basis that the grant was hereditary.

Th~ State Government thcreupan appealed by a special leave to this Court .

. Allowing the appeal,

HELD : (I) The constitutional position of the Ruler of every one of the Jndian States before their integration with the rest of India and comina. into force of the Constitution of India was that he enjoyed uncontroUcd sovereign

powers and there were no constitutional limitations upon his authority H to act in any Of the three capacities of legislature, executive and judiciary.

It follows, therefore, that if the Ruler of Jamkhandi bad changed the perma nent cash allowance granted to the respondent~ 11.ncestnrs to one for life, it is legally valid and il cannot be questioned. [463 A-"Bl

MYSORE v. A. v. PA TWARDHAN (A lagiriswami, J. ) 4 61

Anieer-up-Nissa Btgu1n v. MtJ/1b"otib Begum, A.I.R. 1955_ S.C. 352, relied on.

(II) The Tainat allowance being service allowance the deduction of the com.mu'!ltion amount is f9r the payn1ent to tbe person -Who was doing. the

sev1ce 10 place of the cash allowance -holder. That is why what was being -paid to the respondent year after year was the cash allowance minus the

commutation amount.

The commutatiori ariiount is, therefore, deductible from the cash allowance while calculating the compensation i)ayablc to the respondent.

[463 D-E] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1741 qi \967.

Aooea! bv .soecial leave. from iudgment and order dated the -30th November, 1962 of the Mysore Hiilh Court at Bangalore in Writ Petition No. 777 of 1961. V. K. Krishna Menon, M. V'eerappa and S. P. Singh, for the appellant.

R. B. Datar and M. L. Verma, for tbe respondent.

The Judgment of the Court was delivered by- ALAGIRisWAMI, J.-The respondent's ancestors had been granted a cash allowance called Tainat by the Peshwas. After the defeat of D the. Pesh was by the. British, by the Treaty of Gulga!lee with Jamkbandi dated 6-6-1819 by the Hon'ble Mr. Elphinston, Governor of Bombay

on behalf of the East India Company one of the terms which .were gran, ted tc, Gopalrao J amkhandikar was regarding the terms which he hell! ft om the Government of His Highness the Peshwa, for the paymeru: ofbis contingent (apparently army) of his personal allowance.

It stated that he was to continue all allowances and no complaints on this head were to be suffered to reach the Government (East India cOlnpany).

The allowance to respondent's ancestors was .oµe such allowance. This allowance seems t9 have amonnted to .a sum of Rs. 2010/- minus a sum of Rs. 240/- being the commutation amount as shown in Petha Khata Wahi Extract of 1942-43. That exact also shows that this grant was iiermanent. But. in 1944 the then ruler of Jamkhandi seems to have converted this ... 3Jiowance to one for life.

After the JamkhandiState was mered in the State of Bombay, the Bombay. Leiislature .passe.d the. Bombay, Merged territories Misci:l~ laneous. Alienations. Abolition Act, 1.955.

The rclent filed an application on 21-'7'1956 nnder s. 11 of. that 11ctbefore the Assistant Commissipner .. Jamkhandi clai\llin~ that the cash allowance payable was both permanent and hereditary but that he learnt th.at.the ruler of G Jamkhandi had passed an order that the. :said . cash .allowance be continued till his (applicant's\ life time when the same Was continuell to him after the death of his father. .He mtioned that .he had Jllaved the Raiasabeb bv an aoolicatiori which was not finally disposed of.

He. therefore, claimed that Ile would be entitled to Rs. 21.000/- 'at

H 7 times ofthe cash allowance on (Jiebasis that it was Rs. 3,0QO/- a vear and. oermanent or in .the a1tenative t-0 Rs. . 9,0Q-Or: being three times the cash .. allowance on die basis that it was payable for Jife. It would be nP\)reciated 'that by this time \he Ruler of J amkhandi was no longer .a ll\11er and was certaiit1y not in a i><lsb 17-L954SupCl/74

t&2

'SUPREME COURT REPORTS

[ 19741 3 S, C.R.

W>~ to be of any .assistance to .the respondent on the basis of his application. The AssJStant Conuwssioner passed an order granting a sum <If ~· 5172-12-0 being three times the annual sum of Rs. 1724-4-0 which the respondent was receiving. The respondent then filed an appeal to the Mysore Revenue Appellate Tribunal as by that time the a{Ca. had become part of the Mysore State. In that appeal he mentioned that through mistake his name has been recorded as holder of the Tainat cash allowance for life only. He also .mentioned that his apPlication to the Rajasaheb of J amkhandi for correction of the mistake was still pending even though the state of Jamkhandi was merged. Tribunal dealt with the argument before it on behalf of tile respondent to the efieet that the ruler of J amkhandi had no power to change the cash allowance to. one for life according to his own earlier order passed in. the year 1909-10 it was permanent and in the view that .the ruler of J amkhllndi had sovereign powers and was the tountain hea.d of all source of authority, that is. executive, judiciary and legislature, he could change the Tainat cash allowance at his sweet will and pleasure, dismissed the appeal.

The respondent thereupon filed a writ petition No:· 777 before the High Court of My8ore.

There also he atalcdthat through mistake his name was recorded as the holder of the Cash. allowance for life only, and also urged that the ruler of the Jamldiandi>State had no Power to interfere with the Tainat cash allowance.

The Hiab Court diU not deal with the question whether the Ruler of lamliliandi had, in' 1944, the powei'to convert a hereditary grant to one for life but directed that a sum of Rs. 14,070 being seven tnnes the annual cash allowance of Rs. 2,010 be paid to the respondent on the basis that the grant was hereditary.

This appeal is against thai 1wlgment .and order of the High Court.

We are of opinion that clearly the decision of the Mysore High Court is wrong. In Ameer-un-Nissa Begum v. Mahboob Begum (AIR

}!1~5 SC 352) this Court stated the constitutional position of the Nizam of' Rerabad in these words :

" .... It cannot be dispute that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature the su1>reme judiciary and the supreme head of the executive. and there were no constitutional limitations uoon his authority to act in any 'of these capacities. The 'Firmans were expressions of the sovereign will of the Nizam and they were bindin~ in the same way as any other law;-nay, they would override all other law.s which were in con, fiict with them. So, long as a particular 'Fueman' held the field, that alone would overn or regulate the rights of the parties concerned, though it could be annull.ed or l!lodi lied by a later 'Firman' at any time that the Ntzam wtlled.

The Nizam was not only the supreme legislature, he was the fountain of justice as well. When he constituted a new Court, he could, according to ordinary notions, be dcced to have exercised his legislative authority.

When agam he

MYSORE v. A. V. PATWARDHAN (Alagiriswami, /.) 463

affirmed or reversed a judicial decision, that may appropriately be described as a judicial act. A rigid line of delllarcation, however. between the one and the other would from the verv natlire of things be •not .iustified or even possible."

That sets out the constitutional position of the ruler of every of the Indian States before their integration with the rest of India and com~ ing into force of the Conslitution of India. It follows therefore that if the ruler of Jamkhandi hid changed the panent cash allowance granted tC' the respondens's ancestors to one for life it is legally valid and it cannot be questioned. The extract from the Jamkhandi State Gazelle dated 7-8-1920 publishing rules regarding ca; h allowance itself shows that those rules cancelled the earlier rules and tliose rules also could be appropriately cancelled by the subsequent rules. Any application made by the respondent to the former .ruler of Jamkhandi after the State was merged in Bombay State will not help him.

The ruler !J; id by that time lost all his powers. The decision of the Mysore Revenue Aj>peUate Tribunal is, therefore, right.

There is only one small point which has got to be mcntione, J. The compensation allowed was three times the cash allowance. As already mentioned the Petha Khata Wahi extract shows tho allowance at Rs. 2010.80 minus Rs. 240.00 being the commutation amount. These allowances being service allowances, the deduction is for the paJyment to the person who was doing the service in place of the cash allowance holdec. That is why what was being paid to the respondent year after vear was the cash allowance minus commutation amount. The Mvsore High Court was. therefore, wrong in holding that this sum of Rs .. 240 cannot be deducted from the cash allowance while calculatin2 the compensation payable to the respondent.

We must mention that when this appeal was ta<en up for hearing Mr. Datar apl'l:aring for the respondent con(ended lhat as this Court in M.P. State v. Ranojirao (1968 3 SCR 4119) has held that the Ma<lha Pradesh Abciition of Cash Grants Act violates Art. 19(1)(!) or Art. 31(2) of the Constitution, and so struck it down, the Bombay Merged Territories Miscellaneous Alienation Abolition Act is also liable to be struck down on the same ground. He, therefcre, wanted that h< shuuld be given the liberty to move the High Court for striking do\vn the Act under consideration in this case. \\'c do not propose to express any opinion as to whether it would be open him to do so in tl1e backt; round of this case. There is nothing to prevent him f!'Ot'1 filing on appbcation if he is so advised.

Jn the result this appeal is allowed and the judgment and order of the High Court of Mysore set aside. As the special leave was granted oa the condition that the appellant would in any event pay to the resp0ndent his of the appeal, the appellant shall pay the respondent's costs.

S.B.W.

J8-L954SupCI /74 Appeal allowed.

STATE OF MYSORE

ANANT VINAYAK PATWARDHAN

Februan 26, 197~

Section 11

Gulgallee

Jamkhandi

Gopalrao Jamkhandikar

Jamkhandi

Jamkhandi State

section 17

India

Constitution of India

lagiriswami

V. K. Krishna Menon

M. V'eerappa

S. P. Singh

R. B. Datar

M. L. Verma

ALAGIRisWAMI

Elphinston

East India Company

Gopalrao J amkhandikar

JamkhandiState

Bombay

s. 11

Mysore Revenue Appellate Tribunal

J amkhandi

J amkhllndi

High Court of My8ore.

Mysore High Court

Hyderabad

Nizam

Bombay State

Mysore Revenue Aj>peUate Tribunal

Mvsore High Court

Datar

(1968 3 SCR 4119

Pradesh Abciition of Cash Grants Act

Art. 19(1)(!)

Art. 31(2)

High Court of Mysore


IFTIKHAR AHMED AND OTHERS

SYED MEHARBAN ALI AND OTHERS

February 26, 197 4

[K. K. MATHEW AND A. ALAGJRISWAMI, JJ.]

 Pwctice~Res-judicata between co-plain!ifJ~~.der oJ f:ourt setti.ng . aside

6 ward and , emitting award for fresh arbrtratzon-lf can be questroned in pr_oceedings arising from rJte cond a ward. . ... . The dispute between the anants and lli.e i-ep6ncfents, as. io _who were the bhumidars of certain prol!erties, was ferred by the Consohdatton Officer under the U.P. Consolidation of Holdings1Att, 1953, o to the Civil Judge, who _ referred it to an arbitrato~ appointed under. the A\!t. The arbitrator held that the respondents had no . title as bhumidars, relyng upon a, .judgment of e High Court, which, accordin, t to the arbitrator oj)erated as r'es-ittdicata between the parties. That judgment was delivered in a suit instituted by the appellant's predecessor and the present respondents for a declaration that a mottg11ge decree in fl\vour of the :.defendant in that suit did not affect the .shl\[es of the respondents in the J}roperties in dispute, and the High Court held that the appellant's predecessor alo_ne was e11titled to the properties, accepting the contention of the defendant in that suit that the respondents had no title whatsoever. · The Civil Jud&e held that the award was manifestly wrong because, that judgment according. to him did not operate as resjudicata between the parties.

He therefore et aside the award and remitted the case to another arbitrator.

The second arbitrator held that the appellant and respqndents were co bhumidars and determined the shares 'of the ]larties holding that the judgQent of the High Court did not operate as res .judicata. .This award was confirmed by the Civil Judge and the Hi_gh Qourt aareed with the Civil Judge.

Allowin~ the appeal to th~ Court, HELD: ·(a)·~'Jf a judgment is to operate as res judicata between . codefendants it is necessary to-.establish (i) tqat Qlere was ;~ conflict of interest between the co-defendants, (ii) that" it was necessary to decide the conflict in order to give relief to the plaintiff, .. and (iii) , fbat the Court actually decided the question. There is no reason why_ a previous decision could not operate as res judicata between c; o.plai~\iffs . also if these three cottditions are satisfied mutatis mutand1's. [467 H; 4~ B-C] . .

. (b) In the judgment of the High Court which was relied upon as having. operated as res judicata there was actual conflict of interest between the present

apell.arit _on the oe hand. and the preent responent on the other; they were the pla.rnhffs m that smt, ad 1t. was. necessary to. decide th; tt. conflict in order to give relief to the. defendant m that su1t; and the H1gh Court decided that the properties !Jelonged exclusively to the appellant's .Jl.redecessor. The effect of th, at judgment 1s "that the present respondents failed to establish their contention that they had title to the properties. [467 F-H]

(c) There was no finding by the arbitrator that by adverse possession the res_pondents had acquired title to the property at any time. {468 F]

(d) The provisions of Arbitration Act. apply to proceedings before an arbitrator under the; U.P .. Cpnsolidation of Holdings Act. Therefore, if the . iudent of the Hih Court operated .in law 'as res judicata it would be an .-ettor of law apparent on e face of the''a'Watd."if it says that the judgment l~\fld'i!\bt'lie as :ref f"dicata. I mn:ee, the Award in the present case wa' ' liable td'beftiide iu\trer s. 30 bf 'the 'Arbitration Act. [468 F-Hl

(e) Under s. 39 of the Arbitration Act no appeal lillll from an order remitting an award .to an arbitrator under s. 16 of the Arbitration Act. Therefore,

IFTOOIAR AHMED V. S. M ALI (Mathew, /.) 465

the appellant could not have challenged the order when the Civil Judge set • aside the first award and remitted the case to the arbitrator. for passing a fresh award. Hence. there is no reason why the appellant .should be. precl\lded

from challenging the correctness of that order in this apJ)eal and gettina relief on that basis.

[469 BJ ·

(f) Since, in the circumstances ?f the case it would be an empty -~Orinl!li~ to remit the case aRain to. the arbitrator the award of the first arbitrator •s restored.

[469 C) 9-heonarayan Singh v. Ramnandan Prasad Narayan Singh A.I.R. [1916) P.C. 78, applied.

Chandu Lal v. K/, ali/ur Rol.aman A.I.R. [1950] P.C. 17, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1646 (N) of 1967.

Appeal by Special Leave from the judgment and order dated the May 19, 1967 of the Allahabad High Court in First Appeal No. 424 of 1969.

l. P. Goyal and Sobhagmal Jain, for the appellants.

Hira Lal Jain, (not present) for respondent No. 1(a).

V. S. Desai and N. M. Kslratriya, for respondent no. 1.

The Judgment of the Court was delivered by

MATHEW, J.-In this appeal, by special ]eave, the question for consideration is whether the High Court of Allahabad was right in setting aside the..decree passed by the Distric;, t Judge, Meerut, in appeal, setting aside an award passed by the arbitrator appointed under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) .

In order to appreciate the question in issue, the following pedigree is .. useful : Buniyad Ali-Smt. Kuri (his widow) (died in 1900) i---~----- ~-------r -- ------_ . -·· ·- smt. Tarifun Nisa Sri Aftab AliSmt. Matlubun-Nisa (daughter) (died in 1910) (died in 1925) (died in 1905 or 1906)

----·-· _ _ _ ... __ _I_ __ I

I .

Sri lshtiaq Ahmad Smt. Kaniz Fatima I 1

lflikhar Ahmad .. .. ~:~~~-Ah:a~ ....

Mukhtia~ Ahmad (Appellant No; 1) (Appellant No. 2) (Appellant No. 3)

II Smt. Majidun Nisa (daughter) (died in 1920)

[ Syed Meharban Ali (Respondent No. 1)

The appellants are the legal representatives of Ishtiaq Ahmed. In the consolidation proceedings under the Act with respect to the properties in question which originally belonged to Buniyad Ali, dispute arose between Ishtiaq Ahmed on the one hand and Meharban Alf and Kaniz Fatima on the other hand as regards the title to them.

Meharban Ali and Kaniz Fatima claimed that they were co-bhumidhars of the properties along with Ishtiaq Ahmed. Ishtiaq Ahmed contended that all the assets of Buniyad Ali were inherited by his son Aftab Ali and that after the death of Aft a b Ali in 191 0 and his widow in 1925 he became the excJusive owner of the properties as the other heirs had

SUPREME COURT REPORTS

[ 1974 J 3 S, C, R.

relinquished their' rights in them. Ishtiaq Ahmed *o claimed title to the properties by adverse possesion. As the dispute between the

parts was coqcerned with the title to the properties, the Consolida.tion Officer referred the matter to the Civil Judge, Meerut who referred the, fame to an arbitrator app9inted under the Act. The arbitrator hefd that Meharban Ali and Kaniz Fatima had no title and so were not o-bhumidhars of the properties with lshtiaq Ahmad. For reaching (his conclusion the arbitrator mainly relied on a judgment of the High Court of Allahabad which, according to the arbitrator, operated as res iudicata between the parties with respect to the title to the properties.

Both the parties fihid objections to the award before the learned II Civil Judge, Meerut. He held that the judgment of the High Court relieq on by the arbitrator did not operate as res judicata between the parties as regards the title to the properties and that the decision of the arbitrator, based as. it was on that judgment operating as res

judicat~, was manifestly wrong and the award was consequently vitiated by an error of law apparent on the face of the award. He therefore set aside the awar'd and remitted the case to the arbitrator for a fresh decision.

The arbitrator Mr:, R. P. Gupta considered the cse. He came to the conclusion, on the basis of the ora] and documentary evidence, that the. parties were co-bhumidhars of the properties except in respect

o~ 9 bzghas. 3 biswas 3 hiswasis and determined their shres in the properties. The arbitrat0r was of the view that the judgment of the High Court was not res judicata as regards the title of the parties to the properties.

Against this award, lshtiaq Ahn.cd filed objections before the II Civil Judge, Meerut. . The Civil Judge considered the objections and found that there was no manifest error or illegality in the award and he confirmed the award.

Ishtiaq Ahmed preferred an appeal from this decision before the District Judge. Ishtiaq Ahmed died during the pendency of the appeal and his Ieal representatives, the present appellants, prosecuted the appeal.

The District Judge held, that the award suffered frm an error. of law apparent on the face of the rcord in that the ar~1tator ignored the judgment of the High Court wh1ch opeated as res JUdicata as regards the title of the parties to te -properties.

He, therefoe, allowed the appeal and set aside the \:Iecree appealed from and remitted 'the case to the arbitrator for a fresh decision. . -The respondents filed a revision befor~ the High Court against th.e decision of the District Judge and the Htgh Court reversed the decision and restored the decree passed by tht! Civil Judge confirming the award.

Mr. Goel appearing for the appellants submittd .that the High Court went wrong in reversing the decree of the' DIStrict Judge. He

ar2Ued that the award was vitiated by an error of law apparent on the faoe of the record as the award proceeded on he. bas~ that the judgment of the High Court did not operate as res JUdicata tn respect

lFTIKHAR AHMED v. S. M. ALI (Mathew, /.) 467'

of the title of the parties to the properties, and therefore, the decision of the District J 11de setting aside the award was correct.

Now, let us consider the nature of the judgment passed by the High Court and see whether it operated as res judicata in respect of the question of title of the parties to the properties and whether there was any manifest error of Jaw apparent on !he face of the award. That judgment rela~ to the prrties in dispute and was passed in second

appeal from a decree in a suit (Suit J'l:o. (;00 of 1.9.34) instituted by Meharban Ali, Kaniz Fatima and Ishtiag Ahmed for a declaration that the decree obtained in O.S. No. 128 of 19.29 J>y Ishari Prasad, the, defendant in that suit on the foot of a mrtgage deed aated. November 5, 1925 executed in his favour by Matlub-un-nissa did not affect the shares of Meharban Ali and Kaniz 'Fatima in the mohgaged properties and that the mortgage, and the decree obtained thereon were invalid to the extent of their shares in the properties. !, shari Prasad, the de fendant in that suit, contended that Matlub-un-nissa~ the mortgagor alone was entitled to the properties mortgaged and that the decree ob~

tained by him on the mortgage was valid. In substance, the con•ention of lshari'Prasad was that Meharban Ali and Kaniz Fatima had no title

to the properties as the latter and the former's mother had relinquished ·

their shares and that the title to the properties vested exclusively in the mother of Ishtiaq Ahmed, namely,. Matlub.un-nisa. The trial Court passed a decree dismissing the suit holding that Kaniz Fatima and Meharban Ali's -mother relinquished their shares in the properties and that Matlub-un-nissa, the mortgagor, alone was entitled to the properties and, therefore, the mongage, and the decree based thereon were valid. The plaintiffs in the suit (Suit No. 600 of 1934) preferred an appeal from the decree. That was dismissed. The decree dismissing the appeal was confirmed by the High Court in the second appeal filed by them.

There can be: no doubt that by the written statement, !shari Prasad, the mortgagee, denied the title of Kaniz Fatima and Meharban Ali to the properties and set up the contention that Matlub-un-nissa, the morgagor, from whom lshtiaq Ahmed traced his title, alone was entitled to 1he properties.

There was, therefore, an actual conflict Of interest betweenIshtiac(Ahmed on the one hand and Kaniz Fatima and Meharban Ali on the other, and it was necessary to decide the conflict in order tQ give relief to the defendant (fshari Prasad) and the Coun decided that the propenies belonged exclusively to the mortgagor, the mother of lshtiaq Ahmed.

 The effect of the udgment is that Kaniz Fatima and Meharban Ali fail¢ to establish therr contention that they had title to the properties, and, the question is, could they be allowed to agitate the same question'!

Now it is settled by a large number of decisions that for a judgment to operate as res judicata between or among co-defendants, it is necessary to establish that ( 1) there was a conflict of interest between codefendants; (2) that it was necessary to decide the conflict in ord'er to give the rlief which the plaintiff claimed in the suit; and (3) that the court actually decided the question.

SUPREME COURT REPORTS [ 1974 l 3 s.c.ll.

In Chandu Lal v. Khali/ur Rahman(') Lord Simonds said:

"It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But. to this the qualification must be. added that, if such a party is to be bound by a previous

judgment~ it must be proved clearly that he h~ or must be dee.i:ned to have had notice that the relevant question was in issue and wo'\lld have to be decided".

We see no reason why a previous decision should not operate as ies judicata between co-plaintiffs if all these conditions are mutatis

mutandis satisfied. In consi(lering any question of res judicata we have to bear in mind the statement of the Board in Sheoparsan Singh

v. Ramanandim Prasad Narayan Singh(2) that the rule of res judicata "while found, ed on ancient precedent is dictated by a wisdom which is for all time' and that the application of the rule by the courts "shoul<i be infiuenced by no technical considerations of form, but by matter of liUbstance within the limits. allowed by law.

: "The raison d'etre of the rule is to confer finality on ci sions arrived at by competent Courts between interested parties after genuine contest; and to allow persons who had deliberately chosen a position to reprobate it and to blow bot

no~ when t?ey were blowin~ cold before would be completely to Jgnore the whole founduon of the rule." {see Ram Bhaj v. Ahmad Saidakhtar Khan(3 ) .

In the award, the arbitrator has stated that the judgment of the High Court in the second appeal would not operate as res judicata as regards the title to the properties but was. only a piece of evidence. The arbitrator came to the conclusion that the respondents were in joint possession of the properties and, therefore, there was no ouster. If the judgment operated as res judicata, the respondents had no title to the properties. There was no finding by the arbitrator that by adverse possession they had acquired title to the properties at any point of time.

The question which was referred to the arbitrator was the dispute between the parties as regards the title to the properties. If the judgment of the HiJth.Court operated in law as res judicata, it would be an error of law apparent on the face of the award if it were to' say that the judgmen( would not operate as res judicata. The District Judge was, therefore, right in holding that the award. was vitiated by an error of Jaw apparent on its face in that it was based on the proposition that the judgment of the High Court would not operate as res judicata on

tb~ auestion of title to the properties. If an award sets forth a proposi~ tion of law which is erroneous, then the award is liable to be set aside under s. 30 of the Arbitration Act. This Court has held that the pro~ visions of the Arbitration Act will apply to proceedings by an arbitrator under the Act (see Charan Singh and Others v.

Babulal and Others(4 ).

(I) A.I.R. 1950 P.C. 17.

(2) A.I.R. 1916 P.C. 78.

(3) A.I.R. 1938 Lah. 571.

(4) [1966] Supp. S.C.R. 63.

....

IFTIKHAR AHMrD 1' S. l\1. ALI (Mathew, ].) 469

It might be recalled that the ll Civil J udgc set <side the first award and remitted the case to the arbitrator for passing a fresh award under s. 16 of the Arbitration Act. That was only on the basis that the arbitrator committed an error of law in relying upon the judgment of the

Hig~ Court as finally determining the titl~ to the properties. As no appeal under s. 39 of the Arbitration Act lay from an order remitting an award to an arbitrator under s. 1'6 of the Arbitration Act, Ishtiaq Ahmed could not have challenged the order. There is, therefore, no reason why the appellants should be precluded from challenging the correctness of that order in this appeal and getting relief on that basis.

We et. aside the order of the High Court and allow the appeal. In . the circumstances we think it would be an empty formality to restore the deCision of the District Judge and remit the case again to the arbi- C trator. We restore the award dated March 30, 1959, passed by Mr.

K. C. Govil, the first arbitrator. We make no order as to costs.

V.P.S.

Appeal allowed.

IFTIKHAR AHMED AND OTHERS

SYED MEHARBAN ALI AND OTHERS

February 26, 197

K. K. MATHEW

Cpnsolidation of Holdings Act

s. 30

s. 39

s. 16

CIVIL APPELLATE JURISDICTION

P. Goyal

Sobhagmal Jain

Hira Lal Jain

V. S. Desai

N. M. Kslratriya

MATHEW

High Court of Allahabad

Buniyad Ali-Smt. Kuri

lshtiaq Ahmad

Kaniz Fatima

lflikhar Ahmad

Mukhtia~ Ahmad

Majidun Nisa

Syed Meharban Ali

Ishtiaq Ahmed

Buniyad Ali

Meharban Alf

Kaniz Fatima

Meharban Ali

Aftab Ali

Aft a b Ali

Civil Judge, Meerut

II Civil Judge, Meerut

R. P. Gupta

Goel

Ishtiag Ahmed

Ishari Prasad

November 5, 1925

Matlub-un-nissa

Kaniz 'Fatima

shari Prasad

Matlub-un-nissa~

Matlub-un-nissa

lshtiaq Ahmed

fshari Prasad

Simonds

s. 30

s. 16

s. 39

s. 1

March 30, 1959

K. C. Govil


RAM LABHAYA

MUNICIPAL CORORATION OF DELHI AND ANR.

Februari: 26, 1974

[M. H. BEG, Y. V. CHANDRACHUD AND R. S. SARKARIA, JJ.]

Prtven1ion of Food Adulteratioh Act, 1954-S. 10(7) whether mandatory or directory-Scope of.

The appellant was charged with an offence 1;1ndCr s .. 16(7) of the reventio!1 of Food Adulteration .Aot~ 1954 for adulterating foreign starches with llaldt.

He was acquitted by the Magistrate on the ground that the sample was not taken by the Food Inspector in the presence of independent witnesses. leading to non-compliance with the mandatory .Prvisions of s. 10(7) of the A~~· The High Court set aside the order of acquittal and held that the prov1s1ons of s. _10(7) of the Act were directory _and not mandatorY.

Section 10(7) of the Act provides that where the Food Inspector takes any action under ally of the clauses menti9ned therein he shall call one or more persons to be present at the time when uch action is taker, and take his or their signatures. By the amendment of 1964 the words "as far as possible" which were in the unamended section were deleted.

Jt was contended thats. 10(7) was mandatory and since the F09<1 Inspector did not take a. sample in the presence of independent persons as required by the section its contravention would vitiate the conviction.

On appeal to this Court, confirming the conviction imposed by the High Court,

HELD : There can be no doubt that "one or more persons" nlust mean one or more independent persons.

In view of the legislative history of i. 10(7) while takin~ action under any of the provisions mentioned in the sub-section, the food Inspector must call one or more indendent persons to be present at the time when such action is taken. It is not, however, correct tO say that regardtc_ss of an circumstances non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction.

The obligation which s. 10(7} casts on the Food Inspector is to "call" one or more persons to be present when he takes action. [472 D-Fl

I~ the instant case the Food Inspector did. call the neighbouring shopkeepers to witness the taking of the sample. None was willing to cooperate. He could not certainly compel their presence.

In such circumstances the prosecution was relieved of its obligation to cite independent witnesses. The Food Inspector WM unable to secure the presence of independent persons and was

th~.refore, driven to take a sample in the presence of the members of his staff onIY.

I~ is easy enough to understand that shopkeepers might feel bound by fraternal

hs but o cou.rt can countenance ?- conspiracy to keep out independent witnesses _in a bid to defeat the working of laws. f472 F-473 BJ

Babula! Hargovindas v. State of Gujarat [1971] Supp. S.C.R. 53, followed.

CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No 192 of 1970. .

Appeal by special leave from the judgment and order dated the 18th August, 1970 of the Delhi High Court in Criminal Appeal No. J 9 of H 1966.

M. K. Ramamwthi and Vinee/ K11mar, for the appellant.

A Hardaya! Hardy, B. P. Maheshwari and N. K. Jain, for the respondent. -

The Judgment of the Court was delivered by

OrANDRACHUD, J.

On July 31, 1965 a Food Inspector of the Muriicipal Corporation of Delhi took a sample of Haldi from the appellant's shop on More Sarai Road. On the Public, Analyst certifying that the Haldi contained foreign starches to the extent of 25 per cent the appellant was put up for trial before the learned Magistrate, First Class, Delhi, under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954. The learned Magistrate acquitted the appellant on the sole ground that the sample of Haldi was not taken by the Food Inspector in the presence of independent witnesses, leading to non-compliance with the "mandatory provisions" of section 10(7) of the Act.

The order of, acquittal was set aside in appeal by the High Court of Delhi whichfollowing its own earlier judgment took the view that the provisions of section 10( 7) of the Act are directory and not mandatory.

This appeal by special leave is directed againstlhe judgment of the High Court convicting the appellant of the offence of selling an adulterated article of food and sentencing. him to suffer imprisonment for six months and to pay a fine of Rs. 1000.

It is urged on behalf of the appellant that the report of the Public Analystdoes not say that the presence of 25 per cent of starch affects injuriously the nature, substance or quality of Haldi and therefore the sample taken by the Food Inspector cannot be said to be adulterated within the meaning of section 2(i) (b) of the Act. The short , answer to this contention is that Rule 44 of the Prevention of Food Adulteration Rules,.1955 provides that no person shall sell turmeric "containing any foreign substance". The report of the Public Analyst shows that the sample contained not natural but "foreign starches''. Section 7(v) of the Act provides that no person shall sell any article of food in contravention of any provision of the Act or of any rule made thereunder. The sale of Haldi containing foreign starch is in contravention of rule 44(h) and is therefore an offence under section 7(v) of the Act.

Great reliance was placed by counsel for the appellant on the circum. stance that as required by section 10(7) of the Act the Food Inspector did not take the sample in the presence of independen~ persons. It is urged that section 10(7) is mandatory and its contravention would vitiate the conviction.

Section !Q(7) provides :

"Where the food inspector takes any action under clause

(a) of sub-section (I), sub-section (2), sub-section (4) or sub-section (6), he shall, call one or more persons to be present at the time when such . action is taken and take his or their signatures."

SUPREME COURT REPORTS

[ 1974 J 3 S.C.R.

There can be no doubt that "one or more persons" must mean one or more independent persons. The legislative history of sub-section

(7) further shows that at the least, the Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the subsection. Prior to its amendment by Act XLIX of 1964, sub-section (7) ran thus : -..

"Where the Food Inspector takes any action under clause

(a) of sub-section(!) ...... he shall, as far as possible call not. less than two persons to be present at the time when such action is taken and take their signatures."

By the amendment of 1964, the words "as far as possible" were deleted. This deletion naturally lends plausibility to the contention that the provisions of section 10(7) are mandatory and it has been so

he~ in Food Inspector, Corporation of Calicut v. Vincent and Anr.(1> and Ram Sarup Tara Chand v. The Stale.(')

We are of the opinion, particularly in view of the legislative history of section 10(7), that while taking action under any of the. provisions mentioned in the sub-section, the Foocl Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial qr conviction. The obligation which section 10(7) casts. on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show tqat the Food Inspector did call the neighbouring shopkeepers to witness the taking of thesample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of Gujarat(') it was held by this Court after noticing that section 10(7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accompJice his evidence alone, if believed, can sustain the conviction.

The Court observed that this ought not to be understood as minimising the need to comply with the salutary provision in section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.

(1) I.LR. [19661 (2) Kerala 551.

(2) A.LR. 1965 Punjab ~

(3) [1971] Supp. S.C.R. 53,

As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no court can countenance a conspiracy to keep out independont witnesses in a bid to defeat the working of laws.

However, we are not disposed, while confirming the conviction of the appellant, to uphold the sentence imposed by the High Court Rn!e 5 of the Prevention of Food Adulteration Rules, 1955 provides that standards of quality of the various articles of food specified in Appendix B to the Rules" must be as defined in that Appendix. .Rule A.05.20.01 which came into force on July 8,' 1968 shows that Haldi Powder may contain not more than 60 per cent of starch by weight.

It is true that this Rule came into force after the date of the offence in question, but the circumstance is not without relevance on th~ question of sentence. Counsel for the Corporation did not also press for a substantive sentence. In the circumstances, a sntence of fine of Rs. 1000 in place of the minimum sentence prescribed by law .would meet the requirementS of the case. We are informed that the appellant has already paid the fine.

We therefore uphold the order of conviction but modify the sentence as stated above.

PJ3.R.

2-M 45 Sup. Cl/75

RAM LABHAYA

MUNICIPAL CORORATION OF DELHI AND ANR

M. H. BEG

Y. V. CHANDRACHUD

R. S. SARKARIA, JJ.

Food Adulteratioh Act, 1954

S. 10(7)

s. 10(7)

Section 10(7)

A Hardaya! Hardy

B. P. Maheshwari

N. K. Jain

OrANDRACHUD

Magistrate, First Class, Delhi

High Court of Delhi

section 10( 7)

section 2(i)

Section 7(v)

section 7(v)

section 10(7)

section 10(7)

section 10(7)

section 10(7)

section 10(7)

section 10(7)

section 10(7)

Appendix B to the Rules

July 8,' 1968