MUNICIPAL COMMITTEE, AMR!T~A'.fl

HAZARA SINGH

March 12, 1975

[A. N. RAY, CJ., K. K. MATHEW AND V. R. KRISHNA IYER, JJ.]

Practice-Criminal appeal under Art. 136 of C01:stitution--lmpropcr i111oca1io11.

A milk vendor was prose1; uted for alleged adulteration, on the ground that there was a minimal shortfall. in the percentage of "milk solids not fat" prescribed by the Prevention of Food Adulteration Rules.

The trial court convicted bu! on appeal, the Sessions Judge made a passing reference to an obiter obse:rvation of this Court in the Malwa Cooperative Milk Union Ltd., Indore v. Bilwrilal, (Criminal Appeal No. 235 dated' 14-s.1967) iguored the minor .deficiency observing that it was in the nature of permissible error and acquitted the accused.

An appeal against acquittal was dismissed by the High Court.

Dismising th~ appeal \o this Court,

HELD : ln the Malwa Cooperatii'e Milk Union Ltd.

v. Bihari/al this Court while holding that 1he revisional power of the High Court i~ reserved for setting right miscarriage of justice and not for being invoked by private prosecutors made an obiter observation, to drive home the point, that the case itself D was s~ marginal that the difference from the set standard was microscopic. The Sessions Judge was perhaps wrong in tearing that passage out of context and devising a new defence out of it in respect of. food adulteration cases.

But an appeal with special leave under Art. 136 should not have been filed merely to get a declaration that a casual statement in a judgment of the Court i> not its ratio. [915 E-G, 916 E] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 228 of 1972.

E Appeal by special leave from the judgme',1t and order dated the 12th June, 1972 of the Punjab & Haryana High Court in Criminal Appeal No. 883 of 1972.

Naunit Lal, for the appellant.

The Judgment of the Court was delivered by F

KRISHNA IYER, J. We regret to begin this judgment with the observation that the high -purpose of reserving the Supreme Court's jurisdiction for substantial legal issues affecting the nation, should not be taken by cases of lesser co>asequence. The present criminal appeal is a signal instance of litigation of little public interest being brought up here, holding up other momentous causes.

The facts

.1-.petty milk Vf:ndo~ as prosecute~ for alleged adulteration, proof of Which rested on a mm1mal shortfall m the percentage of 'milk solids not fat' going by the prescribed standard (Rule 5 of the Prevention of Food Adulteratio 1,1 Rules). The plea of the accused that, if at all there might have been a marginal error, while the analysis was conducted H was rightly rej.ected an~ the Magistrate sentenced him to imprisonment and fine as laid down m s.7 and s.16(1) of the Preveation of Food

MUNICIPAL COMMITTEE \I, IMZARA SINGH (Krishna Iyer,!.) 915

Adulteration Act (hereinafter called the Act). The milk vendor hopefully appe:aled and impressed by the fact that the milk solids were of the required standard and the 'milk solids not fat' were slightly sub-standard, the Sessions Judge ignored 'the minor deficicacy which is in the nature of permissible error' and acquitted the accused.

The Municipal Committee pursued the matter to the High Court in appeal.

But a Division Bench of that Court dismissed it in limine, presumably as t.oo•trivial for an appeal against acquittal.

However, the appellant has arrived in this Court claiming that this is a test case and maki',1g it appear that some important question of law hangs on the decision, although it was represented, at the time special leave was sought by the counsel, 'that his clients will not press for the conviction of the respondent'.

This latter representation itself is suggestive of the absence of seriousness surroundi1,1g this particular case.

Apart from this teU-tale circumstance, the facts we have set out above show that nothing grave or gre:at in law, by way of miscarriage of justice or general public importance is involved.

This is one of those routine cases, comparatively insignificant, where one court has acquitted and the High Court has felt it unjustified for appellate reversal. It is of paramount importaace that this Court's time should not be consumed by questions which •are trifles.

It is plain from submission of counsel that the appella1t's grievance is not so much against the acquittal as against a passing reference by the Sessions Court to an obiter observation of this Court in The Malwa Cooperative Milk Union Ltd., Indore v. Biharilal(l). Obviously, the Sessions Judge had concluded that a minor error in the chemical analysis might have occurred.

He was perhaps not right in saying so.

Anyway, a reading of his jµdgment shows that the mention of this Court's unreported ruling (supra) was meant to fortify himself and not to apply the mtio of that case.

Indeed, this Court's decision cited above discloses that Hidayatullah, J. (as he then was) was not laying down the law that minimal deficiencies in the milk components justi fied acquiital in food addteration cases.

The point that arose in that case was whether the High Court was justified i,1 upsetting an •acquittal in revision, when the jurisdiction was invoked by a rival trader, the alleged adulteration having been so negligible that the State had withdrawn the prosecution resulting in the acquittal.

Certainly, the revisional power of the High Court is reserved for setting right miscarriage of justice, not for berag invoked by private persecutors. Such

was the ratio but, in the course of the judgment, Hidayatullah J, to drive home the point that the case itself was so marginal, referred to the microscopic difference from the set standard.

To distort that r' ·, age, tear it out of context and devise a new defence out of it fo ,_ , iect of food adulteration cases, is to be grossly unjust to the judg

ment.

Indeed, the Kerala case cited before us by cou'asel viz., State of Kerala v. Vasudevan Nair(2 ) itself shows that such distortion of the

pasage in the judgmeiat did not and could not pass muster. When

(1) Cri. As Nos. 235 & 236of1964, decided on 14-8-1967.

(2) Cr!. A. 89 of 1973 decided by the Kerala High Cuurt on 18-7-1974-A!l India Prevention of Food Adulteration Cases Reporter, 1975 Part I, p. 8,

SUPREME COURT REPORTS (1975] 3 s .. C.R.

pressed with such misuse of this ruling, the High Court repelied it. The law of food adulteration, as also the right approach to decisions of this Court, have been set out correctly there :

"Judicial propriety, dignity and decorum demand that bei,1g the highest judicial tribmml in the country even obiter dictum of the Supreme Court should be accepted as bind-· ing.

Declaration of law by that Court even -if it be only by the way has to be respected.

But all that does not mean that every statement contained in a judgment of that Court would be attracted by Art. 141. Stutements on matters other than law have no binding force.

Several decisions of the Supremt~ Court are on facts and that Court itself has pointed out in Gurcharan Singh and Anr. v. State of Punjab (1972 FAC

549) and Prakash Chandra Pathak v. State of Uttar Pradesh

(AIR 1960 SC 195) that as on facts no two cases could be similar, its own decisions.which were esse1atially on questions of fact could not be relied upon as precedents for decision of other cases."

* * "The standard fixed under the Act is one that is certain. lf it is varied to any extent, the certainty of CJ general stan- dard would be replaced by the vagaries of a fluctuating standard.

The disadvautages of .the resulting unpredictability, uncertainty and impossibility of arriving at fair •and consistent decisions are great."

It is extraordinary that an appeal with special leave under Art. 136 should have been filed, to get a declaration that a casual statement in a judgment of this Court which ex facie had no ki'aship with the question under decision, was not the ratio in the case.

This appeal was ill-advised, misconceived and unnecessary and merits dismissal.

\l.P.S.

Appeal dismissed.

MUNICIPAL COMMITTEE, AMR!T~A

fl

HAZARA SINGH

March 12, 1975

A. N. RAY, CJ.

K. K. MATHEW

V. R. KRISHNA IYER, JJ.

Art. 136

Art. 136

F

KRISHNA IYER

Malwa Cooperative Milk Union Ltd.

Hidayatullah

Kerala

Supreme Court

Art. 141

AIR 1960 SC 195

Art. 136


.. c

PHOOL KUMAR

DELHI ADMINISTRATION March 13, 1975

IA. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]

Penal Code-Ss. 397 and 398-Scope of-Meaning of the words 'uses' in s. 397 and 'is armed with any deadly weapon' in s. 398.

The appellant, alongwith two others, was alleged to have raided a petrol pump sometime after midnight and decamped with the cash. At the time of the raid he was armed with a knife to frighten and terrorise the attendants. One of his associates fired three shots.

His associates were acquitted but the appellant was convicted of an offence under ss. 397 read with 342 J.P.C. and sentenced to. undergo imorisonment for seven years, which was the minimum sentence.

The High Court dismissed his appeal. ·

On further appeal it was contended that the appellant ought to have been convicted under s. 392 sinmliciter in which case he would have been awarded a lesser sentnc.e.

Dismissing the appeal, HELD : ( 1) When an offence of robbery is committed by an offender. being armed with a deadly weapon, which was within the vision of the ' victim so. as to be rnpable of creating a terror in his mind, the offender must be deemed to have used the deadly weapon in the commission of the robbery.

Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offence within the ambit of s. 397. On the other hand if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put tci any fruitful use because it would have bten of use when the offender succeeded in committing the robbery.

[920 F-G; CJ

(2) The le.rm 'offender' in s. 397 is confined to the offender who uses. any deadly weai1on.

The use of a deadly weapon by one offender at the time of committing robbery cannot attract s. 397 for the im!losition on another offender who had not used any deadly weapon. l n that view of the mtter use of the gun by one of the culprits whether he was one of the accused or somebody else could not be and has not been the basis of sentencing the appellant with the ;1id of s. 397. [920 A] .

(3) It appears unreasonable to think that if the offender who merely attempted to commit ro\Jbery but did not succeed in committing it attracts the minimum

punishment of seven years under s. 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under s. 397 if he succeeds in committing the robbery.

But the anomaly created by the use of word 'uses' in s. 397 and 'is armed' in s. 398 will disappear if the two terms are given identical meaning. [920 El

Gol'ind Dipali More v. State A.I.R. 1956 i3ombay, 353, approved.

Chandra Natl1 v. Emperor A.I.R. 1932 Oudh, 103; Nagar Singh v. Emprror A.LR. 1933 Lahore, 35 and Inder Singh v. Emperor A.l.R. 1934 Lahore 522, referred to.

The view taken in Stale v. Chand Singh and another I.LR. [1970] 2 Punjab & Har\'ana. 108. is incorrect.

CRIMINAL APPELLATE JURISDICTION: Cr!. Appeal No. 62 of 1971.

Appeal by special leave from the judgment and order dated the '.?3rd October, 1969 of the Delhi High Court in Criminal Appeal No. 87 of 1969.

SUPREME COURT REPORTS [19751 3 s., c.R.

R. Bana, for the appellant.

V. C. Mahajan and M .. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

UNTWALIA, J.-lrf the night between the 8th and 9th September, 1966, to be pn:cise, at about 1.45 A.M. on the 9th September, a daring B robbery was committed at a petrol pump of the Gasolene Service Station ctn the Ma!l, Delhi:. The robbers who are said to be four in number broke into the office of the Service Station and decamped with Rs. 585/- in cash after locking in the two attendants. After investigation three pe:rsons were put on trial in the Sessions Court. On.e of the culprits, amed Sube Singh,. absconded. The names of the three . are (1) Phool Kumar, (2) Ram Kumar and (3) Dharampal.

The c latter two were acquitted by the learned Assistant Sessions Judge, Delhi for want of sufficient evidel!lce against them. The only person convicted at the said trial was appellant Phool Kumar. He has been convicted under s. 397 of the Penal Code and sentenced to undergo rigorous imprisonment for 7 years.

A concurrent sentence olC 6 months was also imposed for his conviction under section 342 of tl'ie Penal Code.

The Delhi High Court maintained his convictions and D sentences aind dismissed his appeal.

He has approached this Court by special leave.

Mr. R. Bana, learned counsel for the appellant took pains to submit as many as 8 points in support of this appeal. The first s1:ven points were concerned with the assailing of .concurrent findings of fact recorded by the two Courts below and do not merit any specific men- E tion or detailed discussion. The eighth point was a question of law.

After briefly referring to the facts found against the appellaint to justify his conviction for robbery the point of law will be discussed hereinnfter in this judgment.

The two eye witnesses to the oceurrence are P.W. l3 Sham Lal and P.W. 16 Ram Sewan. At the time of the occurrence both were dischatgin.g their respective duties as the empoyees of the Service Station. P.W. 16 was working as a Salesman and P.W. 13 was em ployed as a helper. The prosecution story as broadly told by them is that while dy were sitting outside the office of the petrol pump two persons who were identified as appellant Phool Kumar and Ram Kumar (since ; i.cquitted) came theoo. Phool Kumar was armed with

a knife while Ram Kmnar had. a small gun in his hand. The for?J.er asked P.W. 13 to hand over the keys.

On being told that the keys were with P.W .. 16 the/ appellant asked him to hand over the keys.

To terrorize P.Ws. 13 and 16 Ram Kumar fired three shots in the air one of.which stmck the window panes of the office while the other two hit the ground. 11ie appeUant and his associates thereafter oge:ned the door of the office, ransacked the drawers of the tab~ and damped with the money lying in the cash box, after pushing ..,_Ws. 13 and 16 in the office and bolting hs door from outside. It is not neces:; ary for us to mention the details of the information given to the policP- • and the facts leading to. the apprehending of the three culprits after

getting the clue from the absconding accused Sube Singh.

Suffice it to say that the evidence of identification in court against the culprits given by P.Ws. 13 and 16 was not found to be of a kind which could by itself form the basis of the conviction of the accused put on trial. On;: of the two eye witnesses had not identified the appellant at all at any of the identification paractes and one of them indentifie<l him at the 4th or the 5th round.

The clinobing evidence against the appellant wa8 his thumb impression on the kunda'. of the cash box. It was conclusively proved to be his on the opinion of the expert. The report of the expert was used as evidence by the prosecution wjthout examining him in court. .Neither the court thought it fit nor the prosecution or the accused filed any application to summon and examine the expert as to the subject matter of his report. The oourt was bound to summon the expert if the accused would have filed any such application for his examination. That not having been done the grievaoce of the appellant apropos the report of the expert being used without his examination in court made in the High Court and repeated in this Court had no substance. The evidence of P.Ws 13 and 16 against .

the appellant in Court found ample and clinching corroboration from the fact of his thumb impression occurring on the kunda of the cash box. Soon after the occurrence during the course of the investigation photographs of the impressions .on the kunJa had been taken long before the appellant was apprehended for the participation in the crime.

TI1erc was absolutely no scope for any kind of manipulation in' the

mattr as was argued onj behalf of the appellant in desperation. We are, therefore, cleady of the opinion that the participation of the appellant in the commission of the robbery at the petrol pump was proved beyond an)l reasonable doubt; so also the charge under section 342 of the Penal Code.

The last submission on behalf of the appellant vas that sentencing him to undergo rigorous imprisonment for 7 years under section 397 of the Penal Code was illegal and he ought to have been convicted under section 392 simpliciter which would have enabled the court on the facts of this case to pass a lesser sentence of imprisonment. Reliance was placed upon the majority opinion of the full Bench of ftle High Court of Punjab & Haryana in the case of State v. Chad Singh another(1). The argument' was attractive at the first sight bat did not stand our careful scrutiny.

Section 392 of the Penal Code provides :

 ''.Wftver commits robbery shall be punished with rigor-· ous 1mpnsonment or a term which may extend to ten years,

ad shall also hable to fine; and, if the robbery be comtted on the highway between sun.set and sunrise, the im-

nsoruhent may be extended to fourteen years."

The >.entence of imprisonment to be awarded under section 392 n

not be less tha~ 7 years if at the time of committing robbery the offender uses any deadly wpon or causes grievous hurt t" any pit-

(!) I.L.R. [1970] 2 Punjab & Haryana, tos'.

SUPRE]\11-\ COURT REPORTS l1975l 3 s.c.R.

son or attempts to cause death or grievous .hurt to any person : ride section 397. A difficulty arose n several High Courts as to e. meaning of the word "uses" in section 39?. The tern~ 'offenper m that section as rightly held by several High Courts, 1s confined to the

offendr who uses any deadly weapon. The use of , a deadly \\eapan by one offender at the time of comit.ting robery cannot attract &ection 397 for the imposition of the nummum pumshment O)l another offender who had not used any deadly weapon.

In that view of the matter use of the gun by one of the culprits whether he was accused Ram K11mar or some body else, (surely one was ther~ who had ed three shots) could not be and has not been the basts of sentencmg thr appellant with th~ aid of secti?n 39~. o far as he is concerned he is .said to be armed with a knife which 1s also a deadly weapon.

To be. more precise from the evidence of P.W. 16 "Phool Kumar had a knife in his hand".

He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them.

Any other overt act, such as, brandishing of the kn.ife or causi, ng of grievous hurt with it was not necessary to bring the offender within the ambit of section 397 of the Penal Code.

Section 398 uses the expression "armed with any deadly weapo, n" and the minimum punishment provided therein is also 7 years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succ:eed in committing it attracts the minimum punishment ·

of 7 years under section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur' the liability of the minimum punishment under section 397 if he succeeded in committing the robbery.

But then, what was the purport behind the use of the different words by the Legislature in the two sections, viz., "uses· in section 397 and "is armed" in section 398. In our judgmenUhe af\omaly is resolved if the two terms arc given the identical meaning.

There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creatin" a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand. if an offender was armed with a deadly weapon •at the time of attempting to commit a robbery, then the weapon was not put to an:y fruit ful use because it would have been of use only when the offenlder succeeded in committing the robbery.

If the deadly weapon is actually used by the offender in the comission of. te robbery such as in causing grievous hurt, death or the like then 1t 1s clearly used.

In the cases of Chandra Nath v.

Emperor(!); Nagar Singh v.

Emperor( 2 ) and lnder Siii'gh v.

(I) A.LR. 1932, Oudh. 103.

(2) A.T.R. 1933. Lahore. 35.

Emperor( 1 ) some overt act such as brandishing the weapon against another person in order to over-awe him or displaying the deadly weapon to frigl1ten his victim have been held to attract the provisions of section 397 of the Penal Code.

J. C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v.

Statee) that if the knife "was used for the purpose of producing such an impression upon the mind of a person that he would be coinpelled to part with his property, that would amount to 'using' the weapon within the meaning of section 397". In that case also he evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim.

In our op aion this is the correct view of the law and the restricted meaning given to the 'Yord 'uses' in the case of Chand Singh ('l) is not correct.

For the reasons stated above we see no justification to interfere with the convictions of an, d the sentences imposed upon th{( appellant under ariy of the counts.

The appeal accordingly fails and is dis-. missed.

P.B.R.

(I) A .T.R. 1934, Lahore, 522.

(2) A.T.R. 1956, Bombay, 353.

(3) I. L. R. (1970) 2 Punjab & Haryana 108.

Appeal dismissed

c

PHOOL KUMAR

DELHI ADMINISTRATION

March 13, 1975

IA. ALAGIRISWAMI

N. L. UNTWALIA, JJ.

Penal Code

Ss. 397 and 398

s. 397

s. 398

ss. 397 read with 342

s. 392

s. 397

s. 397

s. 397

s. 397

s. 398

s. 397

s. 397

s. 398

V. C. Mahajan

M .. N. Shroff

UNTWALIA

amed Sube Singh

Phool Kumar

Ram Kumar

Dharampal

Phool Kumar

s. 397

Penal Code

section 342

Penal Code

Delhi High Court

R. Bana

Sham Lal

Ram Sewan

Ram Kumar

Ram Kmnar

Ram Kumar

Sube Singh

section 342

Penal Code

section 397

Penal Code

section 392

High Court of Punjab & Haryana

Section 392

Penal Code

section 392

section 397

section 39

Ram K11mar

Phool Kumar

section 397

Penal Code

Section 398

section 398

section 397

section 397

section 398

section 397

Penal Code

J. C. Shah

Vyas

Bombay High Court

section 397

Chand Singh

A.T.R. 1956, Bombay, 353


V. K. SHARMA v.

THE STATE (DELHI ADMINISTRATION) March 13, 1975

(A. ALAGIR!SWAMI AND N. L. UNTWALIA, JJ.]

Section, 4, 5(1)(a)(b)(d), 5(2) of Prevelllion of Corruption Act.-Section 161 of l.P.C.-Pres11mptio11 under Section 4 of the Act-Competem authority to accord sanction whether should be competent to remove the accused from Govt. service or from temporary oOlce. ·

The appellant was convicted under section 5(2) of thr, Prevention of Corruption Act read with section 5 (1 )(d) and under section 161 of the Indian Penal

Cede bv the Trial Court and was sentenced to rigorous imprisonment for 2!

C years. He was also sentenced to pay a fine of Rs. 1000. The Delhi High Co11rt dismissed the appellant's appeal but reduced the sentence from 2f years to 1 year and reduced the fine from Rs. HlOO to Rs. 500. The appellant was a Lower ,.,, ivision Clerk in the Central Secretariat. He was appointed to the temporary post of Rationing Inspector having a lien on the post in the Central Secretariat.

The appellant demanded a sum of Rs. 100 as bribe from au owner of a Ration Depot.

A trap was arranged and currency notes bearing initials were handed over to the appellant. He was caught red handed. The appellant admitted the receipt of the currency notes worth Rs. 80 /-. He, however, gave explanai-ion of J the receipt of the money.

Both the Courts below rejected the explanation • untrue.

The counsel for the appellant contended :

(1) That the sanction given by P. W:Iyer iri this case was invalid an'.! not in nccordancc with section 6 of the Act.

(2) Th<'.t P.W. Arora had no authority to lay a trap to search the person of the ap; Jellant or to make an investigation in the case.

Whatever was done by E him 11<1> in contrnvention of section 5A of the Ac.t.

(}l That neither of the charges under section 5(1)(d) of the Act or section 161 uf. th~ Penal Code was legally proved against the appellant.

HELD : While dismissing the appeal,

The appellant had his lien in the Central Secretariat. The Chief Controller, Rationing. would have been competent to remove the appellant from his office as Rationing Inspector but not from his office in the Central Secretariat. Therefore, he was not a competent authority for according sa.nction. The sanction is to be acccrded bi' an authority competent to remove the accused from Government service. [925 BJ

HELD FURTHER : Even if the search is assumed to be illegal it is of no consequence in this case.

The presumption arising under section 4 of the Act when a public servant accepts gratification other than legal remuneration is not availab.Je to the J'rosecution for proving the charge under section 5 of the Act

wih rference to clause (d) of sub-setion (1) of section 5. The presumption anses 10 regard to an offence under sect10n 1.61 of the Penal Code or to an offence under section 5 ( l) (a) or (b). The High Court has elaborately and fully dealt with the submission made on behalf of the appellant.

There is no justification to interfere with the order of the High Court. [925 D, E-G]

CRDHNAL APPEU.jATE JuR1so1cnoN : Criminal Appeal No. 73 of 1971. .

Appeal by Special leave from the Judgment and Order dated the • September, 1970 of the Delhi High Court r,1 Criminal Appeal No. 'f 1968.

v. K. SHARMA v. DELHI ADMN. (Vntwalia, J.) 923

A K. B. Ro.h(agi, for the appellant.

5. N. Anand and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

UNTWALIA, J.

The appellant in this appeaL by special leave has been convicted under section 5 (2) of the Prevention of Corruption Act, 1947-hereinafter called the Act, read with section 5Ql)(d) and under section 161 of the Indian Penal Code.

The Trial Judge. sentenced the appellant u1.1der each count to undergo rigorous imprisonment for : 1 years.

Sentences to run concurrently.

He was also sentenced to P'JY a fine of Rs. 1,000 /- under section 5 (1) ( d) of the Act.

The Delhi High Court dismissed the appellant's appeal subject to the reduction in his sentences.

The concurrent sentence of rigorous impriso',1ment or 2t years has been reduced to one year under each count ancl the imposition of fine of Rs. 1,000 1has been reduced to

Rs. 500/-.

The appellant was a quasi-permanent Lower Division Clerk of the Central Secretariat Clerical Service, Grade II and was borne on the cadre of Community Development and Co-operation.

At the releva!at time he was working as Inspector in the Rationing Department.

P.W.3 Madan Lal was the owner of Rationing Depot in Gandhi Nagm; Delhi.

His complaint was that the appella!at had been demanding Rs. 100/- per month by way of bribe under threat of implicatij_)g him in some false case.

The appellant came to the said witness on

1. 7 .1967 and demanded the payment of Rs. 100 /- that very day.

Madan Lal complained to P.W. Gian Chand Sharma, a Municipal Councillor about this demand and the latter called him to his house in the afternoon; P.W. S.L. Arora, Assistant Controller of Rationinm was called to the Councillor's place.

He after recording the statement of Mad•an Lal, initialled 8 currency i10tes of Rs. 10 /- each, of tl1e total value of Rs. 80/-. Shri Arora instructed Madan Lal to go to the appellant's office aldagwith two witnesses.

Madan Lal proceeded to the appellant's office with P.W.5 Agya Ram Batra and P.W.8 Deputy Lal Telwar.

He handed over the amount of Rs. 80/ to the appellant saying_ that he would pay Rs. 20/- later on.

On the giving of signal by Deputy Lal, Arora arrived and recovered the currency notes from the pocket of the appellant's bush-shirt.

The amount recovered from the appellant's bush-shirt consisted of the same 8 currency notes which -had been earlier initialled by Arora.

After obtaining the sanction of P.W.1. S. P. Iyer, Deputy Secretary, Department of Community Development and Co-operation, Government of India for the prosecution of the appellant and after investigation the police filed a challan against him under section 5 (1) ( d) of the Act and under section 161 of the Penal Code.

Jhe appellant admitted tl\e receipt of the sum of Rs. 80/- in the 8 currency notes from _Madan Lal but denied to have received the sum by way of _illegal gratification 'Or by corrupt or illegal means abusing his position as public servant.

He gave an interesting and curious explanation of the receipt of Rs. 80/- by him from Madan Lal.

The two courts below relying upon the evidence of Prose.cuton Witnesses Madan Lal, Arora, Agya Ram and Deputy. Lal and re3ecttng

the explana\ion of the appellant as untrue have convicted and sentenc .cd him as stated above.

~.Ir. K. B. Rohtagi, learned counsel for the appellant made the following submissions. to press for the acquittal of his client :

(1) That the sanction given by P. W. Iyer in this case was invalid and not in accordance with section 6 of the Act.

(2) That P.W. Arora had no authority to Jay a trap or to search the person of the appellant or to make an investigation in the case.

Whatever was done by him C was in contravention of section SA of the Act.

(3) That neither of the charges under section 5(l)(d) of the Act or secti'on 161 of the Penal Code was legally proved against the appellant.

The High Court has elaborately and fully dealt with the submissions made on behalf of the appellant many of which were repeated in this Court.

We see no justification to interfere with the order of the High Court.

As already stated the appellant was a quasi-permanent Lower Division Clerk o~ the Central Secretariat Clerical Service.

He was !Jome in the cadre of Community Development and Co-o:::ieration.

P.W. Iyer was the Deputy Secretary of that Department. He was competer.l to remove the appellant from his oflice within the meaning of clause (c) of sub-section ( l) of section 6 of the Act.

There was no dispute or debate in .that regard.

No question was put to him in his cross-examinafron to challenge his authority.

But the contention on behalf of the appellant has been that at the time of committing the alleged offence he was working in the post of Rationing Inspector having been appointed to that post sometime back.

The Chief Controller •of Rationing was the proper authority who could remove him from that post and hence he was the only competent authority to accord sanction for the prosecution of the appellant.

We see no substance in this argument. lt is not clear whether the appellant came as a loanee to the Rationing Department from the Central Secretariat.

What is, however, clear on the basis of the various documents considered in the judgment of the High Court is that the appellant was relieved of his duties in the Ministry of Community Development and Co-operation, Government of India on the afternoon of the -20th November, 1965 and thereafter he joined his duties as Rationing Inspector on beinµappointed to that post a few days earlier on the 15th of November.

On a consideration of the rtlevant materials the High Court has rightly held that the appellant was an employee of the Central Secretariat at the time of the commission of the offence but was appointed to the temporary post of Insoector, Rationing. We may add that even assuming the argument put forward on behalf "of

v. K. SHAR~IA I". DHHI AD~IN. (U111walia, .l.) 925.

the <tppllant l'o be correct that he did not come to the Rationing Department as a loanec from the Central Secretariat, there is no difliculty in appreciating that he must have come temporarily to the Rationing Department with his lien on his post i!l the Central Secretari:.it.

The purport of taking the sanction from the authority compctcnt to remove a corrupt Governme11t servant from his office is not only to remove him from his temporary oftice but to remove him from Gov'crnment service.

The Chief Controller, Rationing would have been competent to remove the appellant from his office as Rationing I nspcctor but not from his office in the Central Secretariat.

That being so P.W. lyer in our judgment was the competent authority to accord sanction for the prosecution of the appellant.

The second submission made on behalf of the appellant is devoid of any substance.

After the incident in the office of the appellant in th.: afternoon of the 1st of July, I 967 the First Information Report was lodged with the. police.

The investigati'on within the meaning of section SA ot the Act started thereafter.

No semblance of an:y argument could be advanced before us to show that the investigation made thereafter w1s not in accordance with the said provision of law. Section 5 A is not meant to clothe a person with authority or competency to lay a trap.

It is not necessary to go int'O the question as to whether P.W. Arora was legally competent to search the person of the appellant.

Even assuming it to be illegal it is of no consequence in this case.

On search the 8 notes of Rs. 10/- each were recovered ..

The recovery o( the notes is admitted by the appellant.

The High Court has relied upon several decisions of this Court for coming to the conclusion that the charges against the appellant must be deemed to have been proved.

We may make a slight clarification here.

The, presumption arising under section 4 of the Act when a public servant accepts gratification other than legal remuneration is not available fo the prosecution for proving the charge under section 5 ( 2) of the Act with reference to clause ( d) of sltb-section

(I).

The presumption arises in regard to an offence unde( section 161 of the Penal Code or to an offence referred to in clause (a) or . clause (b) of sub-section (I) 'Of section 5 of the Act.

On the facts of this case, therefore, it must be held that. the charge against the appellant that h obtained for himself pecuniary advantage in the sum of Rs. 80 /- by corrupt or illegal means and by abusing hii position as a pub! ic servant must be held to_ have been proved on the evidence of P.Ws Madan Lal, Agya Ram and Deputy Lal and ll'Jt on the basis of the rule of presumption engrafted in section 4. On the other hand the charge under section 161 of the Penal Code must be held to have been proved by pressing into service the rule of presumption enacted in section 4 of the Act.

The explanation given by the appellant even on the test of pre-ponderer, ce of probability was not only unsatisfactory arid unacceptable but untrue.

In that view of the matter acceptance of the gratification of Rs. 80/- by him from P.W. Madan Lal must be presumed ro have been done as a motive or reward such as is mentioned in section 161 of the Penal Code.

Almost an identical case on the point is the decision of a Constitution Bench of this Court

in Sri C. I. Emden v. The State of U.P.('). There also the appellant before the Supreme Court demanded from the complainant R, s. 400/- per month in order that the complainant may be allowed to carry out his contract peacefully without any harassment.

A sum of Rs. 375/- was proved to have been paid to the appellant. The conviction under section 161 of the Penal Code was maintained only on the basis of the presumption arisirlg under section 4 of the Act. On identical facts conviction under section 5(2) was also upheld.

We m<1y refer to the decision of this Court in V. D. Jhangan v. State of Uttar Pradesh('). On the fcts of that case it was held that the prosecution evidence sufficiently established the charges under section 5(2) read with section 5 (1) ( d) of the Act and section 161 of the Penal Code.

In regard to the latter charge the rule of presumption was applied as laid down by this Court in the case of C. f. Emden referred to above. ·

For the reasons stated above, we find no substance in the appeal and maintain the order of conviction and sentence passed against the appellant.

P.H.P.

(l) [1960] (2) S.C.R. 59

(2) [1966] (3) S.C.R. 736.

Appeal dismis_; cd.

V. K. SHARMA

THE STATE (DELHI ADMINISTRATION

N. L. UNTWALIA, JJ.

Prevelllion of Corruption Act

Section 161

Section 4

section 5(2)

Prevention of Corruption Act

section 5

section 161

Delhi High Co11rt

section 6

P.W. Arora

section 5A

section 5(1)(d)

section 161

Penal Code

section 4

section 5

section 5

Penal Code

section 5

CRDHNAL APPEU.jATE JuR1so1cnoN

K. B. Ro.h(agi,

N. Anand

R. N. Sachthey

UNTWALIA

section 5

Prevention of Corruption Act, 1947

section 5Q

section 161

Indian Penal Code

section 5

Delhi High Court

Madan Lal

1. 7 .1967

Madan Lal

Gian Chand Sharma

P.W. S.L. Arora

Rationinm

Mad•an Lal

Arora

Madan Lal

Agya Ram Batra

Lal Telwar

Lal

S. P. Iyer

section 5

section 161

Penal Code

Arora

Agya Ram

Lal

K. B. Rohtagi

P. W. Iyer

section 6

section 5(l)(d)

Penal Code

P.W. Iyer

section 6

15th of November

Rationing

1st of July, I 967

Section 5

section 4

section 5

section 161

Penal Code

section 5

Agya Ram

section 4

section 161

Penal Code

section 4

section 161

Penal Code

Supreme Court

s. 400

section 161

Penal Code

section 4

section 5(2)

section 5(2)

section 5

section 161

Penal Code


TIWARI KANAHAIYALAL ETC.

THE COMMISSIONER OF INCOME TAX, DELHI

March 13, •I 975

[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]

i11co111e-tax Act ( 11 of 1922), ss. 28 w1d 52, Income-tax Act (43 of 1%1), ss. 271, /77 and 297 ancl Gmera/ C/(111.\<'s Act (10 of 1897) s. 6 (c)-False dec/aratio11 filed by assessee under 1922 Act-Penalty imposed under 1961 Act-

Prmecution for false declaration under s. 52 of 1922 Act-ft valid. .

Sec lion 297 (2) (f) of the Indian Income-tax Act, 1961, provides that notwithstanding the repeal of the Income-tax Act, 1922, any proceeding for the imposition of a penalty in respect of any assessment completed before April 1,

1962, may be initiated 'as if the 1961 Act had not been passed; and Clause (g) provides that any proceeding for the imposition of a penalty in respect of any assessment for the year ending March 3 l, 1962, or any earlier year, which was completed 011 01 after April 1, 1962 may be initiated under the 1961 Act. Section

28(4) of the 1922 Act provides that no prosecution for an offence against the 1922 Act shall be instituted in respect of the same facts on which a penalty has been imposed undCJ the section.

The appellant, filed returns under s. 22(2), Income-tax Act, 1922, the last of the returns being for the assessment year 1959-60. In 1964, he filed revised returns for the same assessment years showing a larger income.

The income-tax was

~1ssessed under the 1961 Act on the revised returns and penalty proceedings were instituted and penalty was levied.under s. 271 of the 1961 Act. The respondent, thereafter, filed complaints for offences under s. 277 of the 1961 Act. By way of abundant caution he alsc filed complaints on the same facts for offences under s. 52 of the f922 Act. The trial court held that the launching of prosecution was illegal in view of s. 28 ( 4) of th~ 1922-Act and Art. 20 ( l) of the Constitution.

The High Court, in appeal~ held that since no penalty was imposed under 6. 28 of the 1922 Act, s. 28 ( 4) was not a bar to the institution of proserntion nor \\'as it hit by Art. 20(1), and directed the trial court to proceed with the trial.

Dismissing the appeal to this Court,

HELD : (l) All the assessments although they related to the years .::arlier than the year ending on March 31. J 962, and were completed after the coming into force of the 1961-Act. (April, 1962). Hence the proceeding for the imposition of penalty had to be and was initiated under the 1961 Act under s. 297(g).

Therefore, s. 28(4) of the 1922 Act cannot be a bar as no penalty was imp.1sed under s. 28o1and there is no provision similar to s. 28(4) in the 1961 Ad. [5>30 A-Bl

Jain Bros & Others v. The U11io11 of llldia & others [1970] 3 S.C.R. 253. followed.

(2) Article 20(1) docs not help the appetlant. lt is not a post facto legilation that is being pressed against him. Section 28 ( 4) did not obliterate the commissivn of the offence or convert the offence into an innocent act.

Under the section, the imposition of penalty merely barred the prosecution. But in the present case, the penalty having been imposed under s. 271 of the 1961 Act the launching of prosecution became permissible and was not hit by Art. 20(1). [931 DJ

Rao Shir Balrndur Singh and a11otlicr v. Tile State of Vi11clllya Prade>il {1953] S.C.R. 1188. followed.

(3) (a) On the facts alleged, '.f true. the appellant would be guilty of an offence under s. 52 of the 1922-Act. Section 297(1) of the 1961-Act repealed the 1922- Act. Jn s. 297(2) there is no saving for launching a prosecution under s. 52 of the 1922-Act. But since no intentinn different frnm that in s. 6 of the General Clauses Act, 1897, appears ins. 297(2) of the 1961-Act, the criminal liability incurred under s. ~2 of the 1922 Act remains unaffected under s. 6(c) of the General

Clauses Act. The prosecution c'an only be for tlie offence under s. 52 of the 1922-Act ands. 277 of the 1961 Act, which corresponds to s. 52 of the 1922-Act, cannot be invoked, [93 J G-H]

c b) The ; ippcllant would also be entitled lo rely on the second part of Art. 20 (I ) that he should nol be subjected to a penalty ::; realer than that which might have been inflicted under the Jaw in force at the time of the commission of the offence. Is. 52 of the 1922 Act), because, s. 277 of the 1961-Act, corresponding to s. 52 of the 1922 Ac:t, provides a greater punishment. [931 E-F]

 CR!:V!INAL APPELLATE JuRrsorcnoN : Criminal Appeal No. 28- 39 of 1971.

Appeals by Special Leave from the Judgment and Order d,}ted the J 8th August, 1970 of the Rajasthan High Court in SB. Criminal Revision Nos. 102-113 of 1968.

M. M. Tewari, and S. M. Jain, for the appellant.

T. A. Ra111achandran, .~. P. Nayar, and R. N. Sachthey, for the rcpondent.

The Judgent of the Court was delivered by

L:o; TWALL\, J.

These are 12 appeals filed by the appellant on grant of special leave by this Court from the common judgment o.f the Rajasthan High Court allowing 12 Criminal appeals filed by the respondent in accordance with section 417(3) of the Code of Criminal Procedure, 1898.

The appellant as partner ol' his partnership firm filed 12 Income Tax Returns for various assessment years-the last one being assessment year 1959-1960.

The Returns were filed by the appellant between 26-3l 95g and 16-10-1961 ; n accordance with section 22(2) of the Income Tax Act, 1922-ncreinafter referred to

s th.: 1922 Act.

The said act was repealed and replaced by the Income Tax Act, 1961-hereinafter called .the 1961 Act.

The 1961 Act came into force on or from 1-4-1962.

During the course of #le assessment proceedings when account books were produced for examination by the Income-tax Officer, Special Investigation Circle- 'B'. Jaipur, he suspected their genuineness or correctness.

In May, 1963 the appellants premises were searched and a number of other books of account and documents were seized. Thereupon the appellant filed revised Returns on 1-3-1964 in respect of all the 12 periods. fn the revised Returns the total income shown was far greater than what was shown in the earlier Returns. Income-tax was assessed after the filing of the revised Returns in respect of all the periods in accordance with the 1961 Act.

Penalty proceedings were foitiated and penalfy was levied in respect of each Return under section 271(1) (c)(iii) of the 1961 Act.

The respondent filed 12 complaints against the appellant alleging commission of offence by him under section 277 of the 1961 Act.

Since the respondent was not quite sure of the legal jJOSition, as a matter of abundant precaution 12 more complaints were filed on the same facts to make out commission of offence by the appellnt under section 52 of the 1922 Act. The (ity Magistrate, Jaipur 111 whose court all the 24 complaints were filed ordered

the tagging of the 12 complaints filed later under section 52. of the 1922 Act with the complaints filed earlier under section 277 of the 1961 Act.

To all intents and purposes therefore the numerically 24 complaints became 12 complaints for trial of the appellant under section 277 of the 1961 Act or section 52 of the 1922 .i<;.t as the case may be.

After the commencement of the trial the appellant in each case filed a petition before the City Magistrate that the launching of the prosecution against him was bad and void in view of the provisions of section 28(4) of the 1922 Act read with Article 20(1) of the Constitution of India. The Magistrate felt , persuaded to accept the stand taken on behalf of the appellant and held that he could not be prosecuted after imposition of penalty under the taxing statute and acquitted tho appellant in all the cases.

The High Court has held that since no penalty was impose~ on the petitioner or his firm under section 28 of the 1922 Act, section 28(4) was not a bar to the institution of the prosecution nor was it hit by Article 20(1). The High Court did not express any view whether the offence, if any, committed by the appellant fell under section 277 of the 1961 Act or section 52 of the 1'922 Act.

The appeals were allowed and the Magistrate was directed to proceed with the trials in accordance with the law.

Hence these appeals.

The only question falling for our determination in these appeals js whether institution of the prosecution against the appellant for the alleged commission of offences by him under either the 1961 or the 1922 Act was bad in law !lS being violative of section 28(4) of the 1922 Act or Article 20(1).

Section 297(1) of .the 1961 Act repealed the 1922 Act. Certain savings were provided in sub-section (2) some of which even without those express 12rovisions would have been covered by section 6 of the General Clauses Act, 1897.

But for the sake of precision and certainty those provisions were made.

Some of the clauses (a) to (m) in sub-section (2) of section 297 are such that a different intention appears from them and they over-ride or supplement the provisions contained in section 6 of the General Clauses Act.

Section 297 (2) provides "Notwithstanding the repeal of the Indian Incomr-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act),-

* * * * * * *

(f) any proceed'ing for the imposition of a penalty in respect of any assessment completed before the 1st jay of April, 1962, may be initiated and any such penalty may be imposed as if this Act had not been passed;

(g) any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March, 1962, or any earlier vear, which is completed on or after the 1st day of April, 1962, may be initiated and any such penalty may be imposed under this Act." 13-564SupCI/75

930 SlJPREME ( JURT RF.PORTS [19751 3 s.c.R.

All the 12 assessments altlrough they related to the years earlier than the year ending on the 31st day of March, 1962 were ?ompleted ater coming into force of the 1961 Act.

Hence a proceedmg for the imposition of p1nalty in respect of any one of those years had to be and was initiated under the 1961 Act in accordance with clause (g).

Clause (f) did not come into play and no penalty was imposed under section 28 of the 1922 Act.

That being so, as rightly pointed out by the High Court, section 28(4) was not a .bar to the launching of the prosecution as no such provision is to be found either in secfoJn 271 or in any othe1~ section of the 1961 Act.

Section 28(4) says "No prosecution for an offence against this Act shall be instituted in respect of the same facts on which a penalty has been imposed under this section." The said provision is not available to the appellant to bar the institution or the prosecution for an offence against either of the two Acts when a penalty has been imposed not under section 28(1) of the 1922 Act but under section 271(1) of the 1961 Act.

Grover, J delivering the judgment on behalf of the Constitution Bench of this Court in the case of Jain Bros & others v. The Union of India others( 1) has pointed out at page 2'63 :

"It is obvious that for the imposition of penalty it is not the assessment year or the date of the filing of the return which is important but it is the satisfaction of the income tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty. What-· ever the stage at which the satisfaction is reached, the scheme of ss.274(1) and 275 of the Act of 1961 is that the order imposing penalty must be made after the completion of the assessment. The crucial date, therefore, for purposes of penalty is the date of such completion."

At page 264 says the learned Judge further :

"Both ss. 271(1) and 297(2)(g) have to be read together and in hanpony and so read the only conclusion possible is that for the imposition of a penalty in respect of any assessmentfor the year ending on March 31, 1962 or any earlier year which is complete_d after first day of April 1962 the proceedings have to be initiated and the penalty imposed in accordance with the provisions of s.271 of the Act of

1961."

Even clause (1) of Article 20 of the Constitution does not help the G appellant.

It is not a pas~ facto legislation which is being gressed into service against him.

As pointed out by a Constitution Bench of this Court in Rao Shiv Bahadur Singh and another v. The State of

Vinhya Pradesh(2 ) at page 1198: ·

"This article in its broad import B.as been enai:ted to prohibit convictions and sentences under ex post facto laws. The H principle underlying such prohibition has been elaborately ---------

(1} (1970] (3) S.C.R. 253.

(2) (1953] S.C.R. 1188.

discussed and pointed out in th:: very_ learned judgment of Justice Willes in the well known case of Phz'!lips v. Eyre-

(1870) 6 Q.B.D. I, at 23 and 25 and also by the Supreme Court of U.S.A. in Calder v. Bull-3 Dallas 386; I Law.

Edition 64~ at 649. In the English case it is explained that ex post jdto laws are laws which voided and punished what had been lawful when done.

There can be no doubt as to the paramount importance of the principle that such ex post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust."

Article 20(1) also prohibits_ the subjecting 'Of any person to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

On the facts alleged against the appellant, if found to be true, at the time he made the false statements in the declarations he did commit an offence under section 52 of the 1922 Act.

Sub-section (4) o~ section 28 did not obliterate the factum of the commission of the offence and did not transmute the offence into an innocent act because of the imposition of penalty under section 28.

Such imposition merely barred the prosecution for the trial and conviction of the commission of the offence.

The penalty having been imposed under section 271 of the 1961 Act the launching of the prosecution became permissible and was not hit by Article 20(1) on the Constitufron.

We are inclined to think that the offence, if any, committed by the appellant was under section 52 of the 1922 Act as the allegedly false statements in declarations were made at a time when the said Act was in force.• No false statement in any declaration seems to have been made under the 1961 Act to form the basis of a charge against the appellant

11der section Z77 of that Act.

The punishment provided in tliis .; ection is greater than the one engrafted in section 52 of the 1922 Act. To that extent only the appellant would be entitled to press into service the second part of clause (1) of Article 20 of the Constltution which says that no. _person shall:

"be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

It is advisable to discuss and dispose of a new point which arose during the hearing of these appeals. Sub-section (1) of section 297 of the 1961 Act repealed the 1922 Act including section 52.

In sub-section (2) no saving seems to have been provid_ed for the launching of the prosecution u_nder the repealed section 52 of the 1922 Act. It does not seem correct to take recourse to clause (h) of Sec- . tion 297(2) tQ make the offences come under section 277 of the 1961 Act as was endeavoured to be done by the respcindent in the first 12 comP,!aint petitions. But thea from no clause under sub-section (2). a different intention appears in this regard from what has been said in section 6 of. the General elauses Act. On the facts alleged the criminal liability incurred µnder sectfun 52 of the 1922 Act reains, unaffected under clause (c) of section 6 of the General Clauses

' . ..

Act. In the case of T. S. Baliah v. T. S. Rangachari(l) Ramaswami, J. delivering the judgment of this Court has said at page /1 :

"The principle of this section is that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in; force at the time of repeal.

In other words, whenever there is a repeal of an enactment the consequences laid d'Own in s.6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute.

In the case of a simple repeal there is scarcely aqy room for expression of a contrary opinion.

But when the repeal is followed by fresh legislation 'On the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether . they indicate a ~!f'l'erent intention.

The question is n'Ot whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.

Section 6 of the General Clauses Act therefore will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the ' section.

Such incompatibility would have to be ascertained from a consideration of all the relevant _provisions of the new statute and the mere absence of a saving clause is by itself not material."

In the result all the appeals fail and are dismissed.

V.P.S.

Appeals dismissed.

(1) [1969] (3) S.C.R. 65.

TIWARI KANAHAIYALAL ETC

THE COMMISSIONER OF INCOME TAX, DELHI

March 13, •I 975

A. ALAGIRISWAMI

N. L. UNTWALIA, JJ.

ss. 28

Income-tax Act

ss. 271

s. 6

s. 52

Indian Income-tax Act, 1961

Income-tax Act, 1922

March 3 l, 1962

Section

28(4)

s. 22(2)

Income-tax Act, 1922

s. 271

s. 277

s. 52

s. 28

Art. 20

s. 28

Art. 20(1)

s. 297(g)

s. 28(4)

s. 28

s. 28(4)

[1970] 3 S.C.R. 253

Article 20(1)

Section 28

s. 271

Art. 20(1)

s. 52

Section 297(1)

s. 297(2)

s. 52

s. 6

General Clauses Act, 1897

s. 6(c)

s. 52

s. 52

Art. 20

s. 277

s. 52

Rajasthan High Court

S. M. Jain

T. A. Ra111achandran

P. Nayar

R. N. Sachthey

section 417(3)

Code of Criminal Procedure, 1898

section 22(2)

Income Tax Act, 1922

section 271(1)

section 277

section 52

section 52

section 277

section 277

section 52

section 28(4)

Article 20(1)

Constitution of India

section 28

section 28(4)

Article 20(1)

section 277

section 52

section 28(4)

Article 20(1)

Section 297(1)

section 6

General Clauses Act, 1897

section 297

section 6

General Clauses Act

Section 297

1st jay of April, 1962

Section 297 (2) provides "Notwithstanding the repeal of the Indian Incomr-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act),-
(f) any proceed'ing for the imposition of a penalty in respect of any assessment completed before the 1st jay of April, 1962, may be initiated and any such penalty may be imposed as if this Act had not been passed;

(g) any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March, 1962, or any earlier vear, which is completed on or after the 1st day of April, 1962, may be initiated and any such penalty may be imposed under this Act."

section 28

section 28(4)

Section 28(4)

section 28(1)

section 271(1)

Grover

Constitution Bench

ss.274(1) and 275

ss. 271(1) and 297(2)(g)

March 31, 1962

Article 20

Willes

Supreme Court of U.S.A.

Article 20(1)

section 52

section 28

section 28

section 271

Article 20(1)

section 52

section 52

Article 20

section 297

section 52

section 52

section 277

section 6

section 6

General Clauses Act

Section 6

General Clauses Act


SOW CHANDRA KANTA AND ANOTHER

SHEIK HABIB March 13, 1975

[V, R. KRISHNA IYER AND R. S. SARKARIA, JJ..]

Constitution of India, 1950, Art. 137 and Supreme Court Rules, 1966, Order Xlr-:-Revfew of an order refusing special /eave-Review proceeding, .if amounts to re-hearing.

Once an' order refusing special leave has been passed by this Court, a review thereof must be subject to the rules of the Supreme Court Rules, 1966, and cannot be lightly entertained. Review proceeding does not amount to a re-hearing. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Even if the order refusing special leave was capable of a different course, review of the earlier order is not permissible because such an order has the normal feature of finality. [933 F-G; 934 BJ

Observation : It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge back-log of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost.

(933 HJ

REVIEW JURISDICTION : Review Petition No. 62A of 1974.

Petition for review of this Court's Order dated the 18th January,• 1974 in Spl. Leave Petition No. 2788 of 1973.

q, K. Daphtary, S. K. Dholakia an~R. C. Bhatia, for the petitioner.

S. V. Tambwaker, for the respolndent.

The Judgment of the Court was delivered by

KRISHNA IYER, J. Mr. Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtualLy amounts to re-hearing.

May be, we were not right in refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained.

A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.

A mere repetition, through different counsel, qt old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.

The very strict need for compliance with these factors is the ratio_nale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge back-log of dockets waitili1g in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over aga.in the same battle which has been fought and lost.

The Bench

SUPREME COURT REPORTS [19751 3 s.c.R.

and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use.

We regret to say that "this case is typical of the upfortunate but frequent phenomenon of repeat perfonnance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward.

May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course.

The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality. ·

We dismiss the petition unhesitatingly, but wi.th these observations, hopefully. ·

V.M.K.

Review petition dismissed .

SOW CHANDRA KANTA AND ANOTHER

SHEIK HABIB

March 13, 1975

R. KRISHNA IYER

R. S. SARKARIA, JJ.

Constitution of India

Art. 137

Supreme Court Rules, 1966

Supreme Court Rules, 1966

K. Daphtary

S. K. Dholakia

R. C. Bhatia

S. V. Tambwaker

KRISHNA IYER

Daphtary


AHMEDABAD MUNICIPAL CORPORATION & ORS.

)I,

RAMANLAL GOVINDRAM & ORS.

March 14, 1975

(A. N. R, AY, C.J., AND V. R. KRISHNA IYER, J.]

Constitution articles 14 and 19-Act empowering the Municipal Commissioner to determine whether a person is in unauthorised occupation of Municipal premises-Whether unreaso1111ble or contrary to prindples of natural justice- Choice to adoPt remedies one of which is more drastic whether violates Article 14-Provision providing appeal to State Govt. and not to ordinary courts whether unreasonable. Bombay Provincial Municipal Corporation (Gujarat Amendmelll) Act 1963-Validity of-

The respondent~ filed Writ Petitions in the High Court of Gujarat challenging the validity of section 437A of the Bombay Provincial Municipal Corporation • (Gujarat Amendment) Act, 1963.

Section 437A(l) of the Act speaks of the order of eviction. In short, it states that if the Commissioner is satisfied that the person authorised to occupy any premises belonging to the Corporation as a tenant or otherwise has not paid any rent lawfully due from him in respect of such premises for a period of more than 2 months or has sublet without the permission of the Corporation the whole or any part of the premises or has otherwise acted in contravention of any of the terms express or implied unde~-which he is authorised to occupy such premises or that any person is .in unauthorised occupation or any municipal premises the Commissioner may notwithstanding anything contained in an.v law for the time being in force by notice order that such a person shall vacate them within one month of the date of service of the notice.

Section 43 7 A (2) speaks of the service of notice before the order is passed.

Section 4370 speaks of appeals to the State Government.

Section 437 of the Act states that the provisions contained in section 437 are in addition to those contained in sections 60 and 438 of the Act.

The Deputy Municipal Commissioner upon whom the Municipal Commissioner delegated powers under section 437 A served notices upon the respondents to show cause why they should not be evicted. The respondents appeared at the enquiry. - Thereafter an order was passed directing the respondents to vacate within one month of the date of the notice. The respondents challenged the. said notices in the High Court of Gujarat by tiling Petitions under Article 226 of Constiti1tion.

The High Court held that there is a, valid basi& of differcntia between occupiers of municipal premises and those of other premises and that there is a rational nexus between the basis of the classification and the object of the legislation.

1he High Court held that sections 437A, 437B and 437F of the Act in so far. as they relate to an order made under section 437 A of the Act are' ultri;:, vires Article J9(1)(f) of the Constitution and section 437A(l) and (2) is ultra rires Article 14 of the Constitution. The High Court, however, held that section 437 A in so far as it empowers the Municipal Commissioner to make an order of e\'iction in cases of persons who are in unauthorised occupation of any municipal premises is violative of Article 14 on the ground that it is left to the arbitrary am'. unguided discretion of the Municipal Commissioner to adopt the drastic and sum------

mary remedy provided under section 43 7 A ( 1) or to adopt the ordinary remedy of suit. The High Court upheld the contention of the respondents that the machinery provided for evicti?n in section .437 A(!) is unreasonabl"'. on the grou!l<l

that the Municipal Commissioner who 1s constttuted the anthonty to determme whether the condition of liability as set out in clauses (a) and (b) of section 437A(l) exists. is the Chief Executive Officer of the Corporation which is the owner of the premises. The Municipal Commissioner will be both a party. and a Judge. The High Court further held that many questions of law would have to he decided and the Municipal Commissioner who is the Executive Officer would he hardly equipped to decide such questions of law.

Allowing1 the appeal,

HELD : In view of the decision of this Court in Magan/al Chhagga11/al Private Limited" the judgment in Northern India Caterers case does not hold the field. On the ruling of this Court in Magan/al Chhagan/al case the conclusion of the High Court that section 437A offends Article 14 on the ground that there is no dear guidance on the Municipal Commissioner to take proceedings is set aside. The conclusion of the High Court that provision of section 437A(l) is unreasonable because the Municipal Commissioner is in substance a party to the dispute is unacceptable. He is the highest officer of the Corporation. There is no personal interest of the Municipal Corporation in evicting the respondents.

The Corporation represents public interest.

The ~; unicipal Commissioner acts in public duty in aid of public interest. If the Municipal Commissioner wrongly exercises his power the action will be corrected in appeal. The contention that the provision of section 437 A imposes unreasonable restrictions on the right of the respondents under Article 19(1) since the Municipal Commissioner has no power to summon witnesses and the State Government has Jo hear tlie appeal and not the ordinary courts was negatived. As long as the persons to be evicted is given the opportunity to produce evidence there is no element of unreasonableness. There are many statutes which provide appeals to the State and not to a court of law, like, Sea Customs Act, Mining Act etc. The State Government will employ persons who are equipped to deal with such matters and appeal to • the State Government will not indicate unreasonableness. If there is any abuse of justice or miscarriage of justice or violation of the principles of natural\ justice the courts are always open to redress such grievances. [940 F; G; 941 B-E] ·

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 81 to 103 of 1970. .

From the Judgment and Order dated the 16/19/20th November, 1968 of the Gujarat High Court in Special Civil Application Nos. 1124, 1480, 154 of 1966, 81, 82, 472, 473, 896, 1113,· 1567 to 1574, 1578 of 1967, and 489 to 493 of 1968.

I. N. Shroff, for the appellants.

Vineet Kumar, for respondents in 81, 83 and 89 and respondent 1 in 85/70.

M. K. Ramamurthy, C. R. Somasekharan and Vineet Kumar, for respondents in : 90, 93-101 & 103 of 1970.

M. C. Bhandare, M. N. Shroff and S. P. Nayar, for respondent 2 in 85/70.

The Judgment of the Court was delivered by

RAY, C.J.-These 23 appeals by certificate challenge the validity of section 43 7 A of the Bombay Provincial Municipal Corporation (Gujarat Amendment) Act, 1963 hereinafter referred to as the Act.

The High Court held that sections 437A, 437-D, 437F of t'he Act in so far as they relate to an order made under section 437-A of the Act are ultra 1ires Article 19(1 )(f) of the Constitution and section 437-A

(1) and (2) is ultra vires Article 14.

Section 437-A(l) of the Act speaks of the order of eviction. Section 437A(2) of the Act speaks of service of notice before the order is passed. Section 437D of the Act speaks of appeals.

Section 437£ of the Act bars jurisdiction of the Court to question these orders.

Section 43 7F of the Act states that these provisions are in addition to Sections 60 and 438 of the Act.

Section 437-A(I) of t'he Act in short states that if the Commissioner is satisfied (a) that the person authorised to occupy any premises

AHMEDABAD MUNICIPjAL CORP. V. RAMANLAL (Ray, C.J.) 937

belonging to the Corporation as a tenant or otherwise has, whether before or after the commencement of the Bombay Provincial Municipal Corporation (Gujarat Amendment) Act, 1963 (i) not paid any rent lawfully due from him in respect of such premises for a period of more than two months, or (ii) sublet, without the permission of the Corporation the whole or any part of such premises, 0r (iii) otherwise acted in contravention of any of the terms, express or implied under which he is authorised to occupy such premises, or (b) that any person is in unauthorised occupatior. of any Municipal premises, the Commissioner may, notwithstanding anything contained in any law for the time being in force by notice served as mentioned in the section order that such a person shall vacate them within one mol)th of the date of the service of the notice.

Sub-section (2) of section 437A of the Act further provides that before an order under sub-section ( 1) is made against any person the Commissioner shall inform the person by notice in writing of the grounds for which' the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show. cause why such order should not be maqe, within a period to be specified in sch notice.

The other provisions in section 437A of the Act are these.

The Commissioner may before an order is made under sub-section (1) grant an extension of the period as to payment and recovery of the amount claimed. If any person refuses or fails to comply with an order made .the -Commissioner may evict that person from and take possession of, the premises and may for that purpose use such force as may be necessary. If a person, who has been ordered to vacate any premises under sub-clause (i) or (iii) of clause (a) of sub-section (l) within one month of the date of service of the notice or such longer time as the Commissioner may allow, pays to the Corporation the rent in arrears or carries out or otherwise complies wi1lh the terms contravened by him to the satisfaction of the Commissicfaer, the Commissioner shall in lieu of evicting such person under sub-section (3) cancel its order made under sub-section ( 1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him.

The expression 'unauthorised occupation' is explained in section 437A of the Act in relation to any person authorised to occupy any Municipal premises to include the continuance in occupation by him or by any person claiming through or under him of the premises after the authority under which he was allowed to occupy the premises has been . duly determined.

Section -437-D speaks of appeal against any order of the Commissioner under section 437-A or section 437-B.

Section 437B speaks of power to recover rent or damages as arrears of land revenue.

Appeals are preferred to the State Government.

Section 437-E ars the jurisdiction of civil courts in respect of orders made by tlhe State Government or the Commiss.ioner.

The Deputy Municipal Commissioner upon whom the Municipal Commissioner delegated powers under section 437-A served notices under section 437-A upon the respondents to show cause why they should not be evicted.

The respondents appeared at the enquiry held by the appellant No. 3. The respondents gave their statements in reply.

Appellant No. 3 being satisfied that the respondents were in unauthorised occupation of the premises served notices on the respondents under section 437-A ordering the respondents to vacate within one month of the date of the notices.

The respondents thereupon filed in the High Court of Gujarat petitions under Article 226 of the Constitution praying for quashing th.e orders issued under section 437-A.

The main grounds of challenge were these.

First, section 437-A C violates Article 14.

It makes unjust discrimination between occupants of municipal premises and occupant~ of non-municipal premises. It also discriminates r.mongst those in occupation of municipal premises inter se because it leaves it open to the Municipal Commissioner at his own will to adopt either the ordinary remedy of civil suit or the summary. remedy under the section.

There is no guiding policy or principle in the section to choose the application of the tlrastic procedure.

D Even if the remedy provided in section 437-A for cases falling within clause (a) of sub-se1:tion (l) is exclusive no choice of remedy is left to the absolute uncontrolled discretion of the Municipal Commissioner.

There is no policy or principle to guide the Municipal Commissioner in

th'.~ selection of occupants of municipal premises who should be proceeded against under clause (a) of sub-section (1) even amongst the occupants of municipal premises falling within clause (a) of sub-section (1) E inter se.

It is open to the Municipal Commissioner at his will to proceed against some and not to proceed against others.

Second, section 437-A imposes unreasonable restrictions on the occupant's fundamental right to hold property under Article 19(1) (f) inasmuch as the liability to be evicted under clause (a) of sub-section ( 1 ) arises not on the objective existence of the conditions specified in F that clnuse but on the satisfaction of the Municipal Commissioner that they exist and the machinery provided in the section for determining the liability to eviction under both clauses of sub-section ( 1 ) is unreasonable.

Third,. the orders of'evi:::tion contained in the notices are bad as reasons are not furnished along with the orders.

. The High Court held that there is a .valid basis of differentiation between occupiers of municipal premises and those of other premises and there is a rational relation or nexus between the basis of the classification and the .object of the legislation.

The High Court further held .nat the discretion which is conferred oq the Municipal Commissioner 1 the matter of enforcement of liability falls' equally on all within the ~. ; cified class in section 437-A(I), and, therefore, there is no discrimi• tion.

AHMEDABAD MUNICIPf'\L CORP. V. RAMANLAL (Ray, C.J.) 93 ..

The High Court, however, held that section 437-A in sofar as it empowers the Municipal Commissioner to make an order of eviction in cases falling within section 437 A(I) (b) viz., that any person :.S in unauthorised occupation of any municipal premises is violative of Article 14.

The reasoning given by the-High Court is that it is left to the arbitrary and unguided discretion of the Municipal Commissioner to adopt the drastic and summary remedy provided under section 437-A- ( 1) or to adopt the ordinary remedy of suit.

' The High Court said that the provisions in section 437-A(l) (a) of the Act create a new liability and. a special and particular. remedy which is an exclusive remedy. 'fhe High Court concluded that the liability to eviction under section 437-A(l) (a) of the Act could not be euforced by ordinary suit.

The High Court held that the liability tO' eviction under section 437-A( 1) (b) of the Act was an existing liability which could be enforced by suit.

The High Court held that the liability to eviction under section 437i<\(1) (b) was therefore no't exclusive but only supplemental.

Relying on the decision of this Court in Northern India Caterers Private Ltd. v. State of Punjab & Anr.

(1967) 3 S.C.R. 399 the High Court held that section 437A(l) (b} therefore violated Article 14.

The High Court did not accept the contention that section 437-A violated Article 19 (1) ( f) that there was no objective existence of conditions specified for liability to. be evicted under section 437-A(l).(a).

The determination of the question whether"these conditions exist or not is entrusted to the Municipal Commissioner who is constituted the authority for determining the liability to eviction. If the determination by the Commissioner is wrong, it can be challenged in appeal.

The High Court upheld the contention of the tenants that the machinery provided for eviction in section 437-A( 1) is unreasonable.

The reasons given by the High Court are that the Municipal Commissioner who is constituted the authority tci determine w'hether conditions. of liability as set out in clauses (a) and (b) of section 437-A(l) exist is the Chief Executive Officer o_f the Corporation which is the owner of the premises.

The functions of the Municipal Commissioner are such that in reality an_c:j substa.nce the Municipal Commissioner is a party to the dispute.

The Corporation is a party to the dispute, because the premises belong to the Corporation.

The Municipal Commis~.ioner who is constituted the authority to determine whether the tenant is liable to be evicted or not is the repository of the entire executive power of the Corporation, and, therefore, the Municipal Commiss1oner who is an authority in taking part in instituting the proceedings against a. party would be disqualified to act as an adjudicator in the proceedings for he would then be in substance both judge and party.

The High Court further held that many questions of law would have to be decided and the Municipal Commissioner who is the executive officer would be hardly equipped to decide such questions of law.

The hearing of appeal by the State shows that the State Government is given the power to call for a :eport from the Municipal Commissioner.

There is no provision in the statute requiring the State Government to furnish a copy of the report to the tenant. Therefore, the provisions are violative of Article 19(1) (f).

The High Court also held that the notice embodying the order of eviction must furnish the reasons to the affected person"

111e decision of this Court in Hari Singh v. Military Estate Officer

(1973~ 1 S.C.R. 515 is that where there is only one procedure for ejectment of persons in public premises there is no vice of discrimination.

There is a bar of jurisdiction .of courts of law in such cases. It is, therefore, only one procedure for these cases of eviction.

The majority decision of this Court in Magan/al Chhagganlal (P) Ltd. v.

Municipal Corporation of Greater Bombay & Ors. (1974) 2 S.C.C. 402 is that where the statute itself covers bnly a class of cases, the statute will not be bad on that ground.

The feature that such cases are chosen by the statute to be tried under the speCial procedure laid . down there will not affect the validity of the statute. The contention c that the mere wailability of two procedures will vitiate one of them i.e. the specialprocedure is. not supported by reason 01 authority. In Magan/al Chhagganlal's case (supra) this Court held that the fact that the legislature considered that the ordinary procedure is inefficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special procedure therefor is a clear guidance for the authorities charged with the duty of evicting un- D authorised occupants.

The correct law is now laid down in Magan/al Chhagganlal's case (supra) and the view of this Court in the Northern India Caterers cae (supra) does not hold the field. In Magan/al Chhaggan/al's case (supra) it has been held that a statute which deals with premises belonging to the Corporation and the Government and lays down a special speedy procedure in the matter of evicting unauthorised persons occupying them is a sufficient reason to support E such special procedure. The policy and the purpose of the Act make it clear that the legislature intended to make the statute applicable to a sper, ial class and provid1: a speedy method of recovering possession of these.properties.

On the ruling of this Court in Maganlal Chhaggariil'al's case

(supra) the conclusion of the High Court that section 437A offends F Article 14 on the ground that there is no clear guidance on the Municipal Commissioner to take proceedings is set aside. It may also be stated here that the respondents because of the decision of this Court in Magan/al Chhagganlal's case (, supra) did not support the conclusion of the High Court on the infraction of Article 14.

The conclusion of the High Court that the . provision in section 437A(l) is unreasonable because the Municipal Commissioner is in G substance a party to the dispute is unacceptable.

The conferment of power on the Municipal Commis_sioner as an Administrative Officer to

take proceedings for eviction cannot be struck down as unreasonable ,1n the ground that he is a judge in his own cause.

He is the highest oflicer of the Corporation.

The Corporation acts through these offices.

There is no personal interest of the Municipal Corporation in evicting these persons.

The Corporation represents public interest.

The H Municipal Commissioner acts in public duty in aid of public interest. 1 he Municip::d Commissioner will apply his mind to the facts and cir-

AHMEDABAD MUNICIP1AL GORP. v. RAMANLAL (Ra~, C.J.) 941

cumstances of a given case as to whether there should be an order for eviction.

If the Municipal Commissioner will wrongly exercise his power the action will be corrected in appeal.

The final contention on behalf of the respondents is that the provisions contained in section 437-A of the Act which provide special procedure in respect of eviction of unauthorised persons imposes unreasonaable restrictions on the right of the respondents guaranteed under Article

l 9 (1) inasmuch as the restrictions contemplated therein by way of proedure for eviction are excessive. Excessiveness is contended to consist in the absence of power of the Municipal Commissioner to summon witnesses as in a civil court and the right of appeal being to the State Government instead of ordinary courts.

Counsel on behalf of the respondents said that the two salutary safeguards, namely, providing an appeal to a court of law and conferring power on the Commissioner to summon .witnesses were found in Magan/al Chhagganlal's . case

(supra) and were absent in the present case. It was, therefore, said that the present case is distrnguishoable.

1ne provisions in the present case show that before an order is made a5ainst any person under section 437A(l) the person concerned is to be given a reasonable opportunity to tender an explanation and to produce evidence. The absence of a special provision to compel summoning of witnesses does not make the section unreasonable. As long as the person to be evicted is given the opportunity to produce evidence, there is no element of unreasonableness.

The fact that an appeal is provided to the State and not to a court of law also does not make the provision unreasonable.

In many statutes like the Sea Customs Act, the Mining Act, appeals are provided to the State Government, This is because of special character of things forming subject matter of these statutes. The State Govefnment will employ persons who are equipped to deal with such matters. An appeal to the State Government will not indicate unreasonableness. If there is any abuse of justice or miscarriage of justice or violation of principles of natural justice the courts are always open to redress such grievances.

The orders which were passed gave reasons. 'The orders were.not served.

That should not happen.

That indicates inefficiency.

There is no infirmity in the orders.

The authorities should serve orders giving reasons for making the order.

For these reasons we hold that the provisions contained in sections 437A, 437D, 437E and 437F are not unconstitutional. The appeals are accepted and the judgment of the High Court is set aside. The appellant will get general costs and one hearing fee. '

P.H.P.

Appeals allowed.

AHMEDABAD MUNICIPAL CORPORATION & ORS

RAMANLAL GOVINDRAM & ORS

March 14, 1975

V. R. KRISHNA IYER, J.

articles 14 and 19

Article 14

section 437A

Section 437A(l)

Section 43

Section 4370

Section 437

section 437

sections 60 and 438

section 437

High Court of Gujarat

Article 226

sections 437A, 437B and 437F

section 437

section 437A(l)

Article 14

section 437

Article 14

section 43

section 437A(l)

Magan/al Chhagga11/al Private Limited

Northern India Caterers

Magan/al Chhagan

section 437A

Article 14

section 437A(l)

section 437

Article 19(1)

Sea Customs Act

Gujarat High Court

N. Shroff

Vineet Kumar

M. K. Ramamurthy

C. R. Somasekharan

M. C. Bhandare

M. N. Shroff

S. P. Nayar

RAY

section 43

sections 437A, 437

section 437

Article 19(1 )(f)

section 437

Article 14

Section 437

Section 437A(2)

Section 437D

Section 437

Section 43

Sections 60 and 438

Section 437

section 437A

section 437A

section 437A

section 437

section 437

Section 437B

Section 437

section 437

section 437

section 437

Article 226

section 437

section 437

Article 14

section 437

section 437

Article 19(1)

section 437

AHMEDABAD MUNICIPf'\L CORP. V. RAMANLAL

section 437

section 437

Article 14

section 437

section 437

section 437

section 437

section 437

(1967) 3 S.C.R. 399

section 437A(l)

Article 14

section 437

Article 19

section 437

section 437

section 437

Article 19(1)

Magan/al Chhagganlal

Northern India Caterers cae

Magan/al Chhaggan

Maganlal Chhaggariil'al

section 437A

Article 14

Article 14

section 437A(l)

section 437

section 437A(l)

Customs Act

sections 437A, 437D, 437E and 437F


SUSHIL KUMAR SEN

STATE OF BIHAR March 17, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KR!SHNA, lYER, JJ.]

Practice-Appellate court holding order 011 review 1101 maintainab/e-Efject of.

The appellant's land was acquired and the Land Acquisition Officer awarded -compensation at the rate of Rs. 14 /- per katha. The appellant applied for reference under s. 18 of the Land Acquisition Act and on 18-8-1961 the Additional District Judge held that he was entitled to compensation at Rs. 200/- per katha.

The respondent State appEed for review of the judgment under 0.47, r.1, C.P.C.

On 26-9-1961 the Additional District Judge allowed the application for review and reduced the compensation to Rs. 7 5 /-· per katha.

The respondent filed an appeal to the High Court purporting to be against both the decrees .dated 18-8- 1961 and 26-9-1961 but in fact was only against the latter, and the appellant filed a cross appeal challenging the maintainability of the review petition before the Additional District Judge.

The High Court held that the Addi. District Judge was wrong in entertaining the review, but on merits the High Court dismissed the appeal of the respondent as well as the cross appeal of the appellant therby maintaining the compensation awarded at the rate of Rs. 75 /- per lcatlw.

Allowing the appeal to this Court,

HELD : It is well settled that the effect of allowing an application for review of a decree is to vacate the decree passed. When the respondent filed the appeal before the High Court it could not have filed an appeal against the decree dated 18-8-1961, becaue, that decree had already been superseded by the decree dated 26-9-1961 passed on review.

So the appeal filed by the respondent before the High Court could only be an appeal against the decree passed on review. When the High Court held that the lower court was wrong in allowing the review it should have allowed the cross appeal.

Since the decree passed on 18-8-1961 awarding compensation at the rate of Rs. 200 per katha had been revived and come into life again, and no appeal was preferred by the respondent against that -Oecree, that dec:ree had become final. [943 G-944 A-CJ

Per Krishna lyu. J :

[While the appeal has to be allowed, Parliament may consider the wisdom of making the judge the ultimate guardian of justice by a comprehensive. though

guardedly worded, provision where the hindrance to rightful relief relates to in- F firmities, even serious, sounding in procedural law. In the present case, almost every step a reasonable litigant could take was taken by the State to challenge the extraordinary increase in the rate of compensation awarded by the civil court but the omission to attack the increase awarded in the High Court resulted in procedural law dominating substaqtive rights and substantial justice.] [944 F-H]

CIVIL APl'ELLATE JURISJ?ICTION: Civil Appeal No. 1252 of 1970.

From the judgment and decree dated 16th February, 1968 of the' G Patna High Court in Appeal for Original Decree No. 81 of 1962.

P. K. Chatterjee and Rathin Das, for the appellant.

D. Goburdhan, for the respondent.·

The Judgment of A. N. Ray, CJ. a'ld K. K. Mathew, J. was delivered by Mathew, J. V. R. Krishna Iyer, J. gave a separate Opinion.

MATHEW, J.-The appellant was the owner of 3 .30 acreS"_:_roughly .equal to 7 bighas, 17 kathis and 14 dhurs-of land. The land was

s. K. SEN v. BJHAR (Mathew, !.) 943

acquired under the provisions of the Land Acquisition Act. The Land Acquisition Officer by his award dated 12-10-1957 gave compensation at the rate of Rs. 14/- per katha for the land.

The total compensation including the value of trees and other improvements came to Rs. 6, 775.22p.

The appellant was dissatisfied with the award.

He filed an application before the Land Acquisition Collector for referring the matter to the District Court under s. 18 of the Land Acquisition Act claiming compensation for the lands at the rate of Rs. 500/- per katha.

The case was referred and the Additional District Judge, Purnea by his judgment dated 18-8-1961 found that the appellant was entitled to compensation for the land acquired at the rate of Rs. 200/- per katha and also made certain other modifications in the amount of compensation under the other heads.

On 22-8-1961, the respondent, the State of Bihar, filed an application for review, under Order 47, Rule 1, of the Civil Procedure Code, of the judgment dated 18-8-1961 on the basis of discovery of new and important evidence as regards the market value of the land which was not available to it in spite of the exercise of due diligence.

The learned Additional District Judge allowed the application for review and passed fresh judgment on 26-9-1961 ;-educing the compensation for land from Rs. 200/- to Rs. 75/- per katha.

Thereafter the respondent filed Appeal No. 81 of 1962 in the High Court of Patna. The Memorandum of Appeal stated that the appeal was being preferred against the decrees dated 18-8-1961 /26-9-1961, but the grounds taken in Memorandum of appeal as well as the court fee paid . would show that the appeal was only against the decree dated 26-9-1961 awarding compensation at the rate of Rs. 75/- per katha and not against the decree dated 18-8-1961 awarding compensation at the rate of Rs. 200/- per katha.

The appellant filed a cross appeal challenging the maintainability of the review petition filed by the respondent before the Additional District Judge as also the order passed thereon by him allowing the petition and vacating the decree dated 18-8-1961.

The appeal and the cross appeal were disposed of by the judgment of the High Court dated 16-2-1968.

The High Court found that the Addi- tional District Judge went wrong in entertaining the review and vacating fhe judgment and decree dated 18-8-1961 but, nevertheless, it considered the appeal filed by the respondent on merits and dismissed the appeal and cross appeal thereby maintaining the compensation awarded for the land at the rate of Rs. 75/- per katha by the Judgment and decree daed

26-9-1961 of the Additional District Judge.

This appeal, on the basis of a certificate, is directed against the decree of the High Court.

It is well settled that the effect of allowing an application for review of a decree is to vacate the decree passed.

The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one (see Nibaran Chandra Sikdar v. Abdul Hakim( 1), Kanhaiya Lal v.

Baldev Prasad(2), Brijbaso Lal v. Sa/ig Ram(3) and Pyari Mohan

Kundu v. Kalu Khan(4 ) ].

The respondent did not file any appeal from the decree dated 18-8-1961 awarding compensation for the land acquired at the rate of

(1) A .I.R. 1928 Calcutta 418.

(3) I.L.R. 34 A\\a'1.ai, a1282.

(2) I.L.R. 28 A!lahabad 240.

(4) I.L.R. 44 Calcutta 1011.

SUPREME COURT REPORTS [19751 3 s.c.R.

Rs. 200/- per katha.

On the other hand, it sought for a review of that decree and succeeded in getting the decree vacated. When it filed Appeal No. 81 of 1962, before the High Court, it could not have .filed an appeal against the decree dated 18-8-1961 passed by the Additional District Judge as at that time that decree had already been superseded

by the decree dated 26-9-1961 passed after teview. So the appeal tiled by the respondent before the High Court could only be an appeal against the decree passed after review.

When the High Court came to !he conclusion that the Additional District Judge went wrong in allowing the review, it should .have allowed the cross appeal.

Since no appeal was preferred by the respondent against the decree passed on 18-8-1961 awarding compensation for the land at the rate of Rs. 200/- per katha, that decree became final.

The respondent made no attempt to file an appeal against that decree when the High Court found .that the review was wrongly allowed on the basis that the decree revived and came into life again.

The High Court should have allowed the cross appeal; and dismissed the appeal, which was, and could only be against the decree passed on 26-9-1961 after the review.

We therefore >ct aside the judgment and decree passed by the High Court and allow the appeal.

The effect of this judgment would be to restore the decree passed by the Additional District Judge on 18-8-1961. We make no order as to costs.

KRISHNA IYER, J.-I concur regretfully with the result reached by E the infallible logic of the law set out by my learned brqther Mathew J.

The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice F i:ompels consideration of vesting a residuary power in Judges to act ex debito justiciae where the tragic >equel otherwise would oe wholly inequitable. In the present case, almost every step a reasonable litigant could take was taken by the State to challenge the extraordinary increase in the rate of compensation awarded by the civil court And, by hindsight, one finds that the very success in the review application and at the appellate stage ha8 proved a disaster to the party. Maybe, Govern- G ment might have successfu1ly attacked the increase awarded in appeal, producing the additional evidence there. But mavbes have no place in the merciless consequence of vital procedural flaws.

Parlia01ent, I hope, will consider the wisdom of making the Judge the ultimate guardian of justice by a comprehensive. though guardedly worded, provision where the hindrance to rightful relief relates to infirmities, even serious,

counding in procedural law. Justice is the goal of jurisprudence- H ,.irocessual. as much as substantive. While this appeal has to be allowed, for reasons srt out impeccably by my learned brother, I must sound a pessimistic note that it is too puritanical for a legal system to

S, K. SEN v. BIHAR (Mathew, /,) 945

sacrifice the end product of equity and good conscience at the altar of processual punctiliousness and it is not too radical to avert a breakdown of obvious justice by bending sharply, if need be, the prescriptions of procedure. The wage11 of procedural sin should never be the death of nghts.

Y.P.S.

Appeal allowed

14-564SCI/75

SEN

STATE OF BIHAR

March 17, 1975

A. N. RAY, C.J.

K. K. MATHEW

s. 18

C.P.C

Krishna lyu

Parliament

CIVIL APl'ELLATE JURISJ?ICTION

P. K. Chatterjee

Rathin Das

D. Goburdhan

A. N. Ray

K. K. Mathew

Mathew

V. R. Krishna Iyer

MATHEW

MATHEW, J.-The appellant was the owner of 3 .30 acreS":roughly .equal to 7 bighas, 17 kathis and 14 dhurs-of land.

s. 18

Additional District Judge, Purnea

State of Bihar

Order 47, Rule 1

High Court of Patna

KRISHNA IYER