{"document_id": "1975_3_301_305_EN", "year": 1975, "text": "RAM RANJAN CHATTERJEE v.\n\nTHE STATE OF WEST BENGAL January 22, 1975\n\n(V. R. KRISHNA IYER, P. K. GOSWAMI AND R. S. SARKARIA, JJ.]\n\nMai11te111111ce of Internal Security Act, 1971-Pre1•e11til'e Dcte111io11-Disti11ctio11 between Public order and Law cmd Order.\n\nThe petitioner challenged the order of his detentiO'n made 11nder section 3 of the Maintenance of Internal Security Act.\n\nThe Ofder was founded on 3 grounds.\n\nFirst, the petitioner exploded a bomb. in which one person died in a thickly populated area which created panic amongst the local people and he threatened the local people to see that they did not inform the Police. Secondly. the petitioner and his associates tried to extort on pain of instant death groeery from a shop keeper.\n\nAs a result customers fled away for fear of their lives and all sboPS in the bazar closed down immediately. Thirdly, bombs were reek lessly hurled at the villagers, causing panic and disn1ption.\n\nThe petitioner conttnded :\n\n(I) That the grounds mentioned in the detention order are not relevant to public order. They concerned law and order only.\n\n(2) That the impugned order was passed mechanically without application of mind.\n\nDismissing the petition.\n\nHELD : Qualitatively the acts which affect law and order are not <lifferent from the acts which affect public order. It is. the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals. directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. It is the length, magnitude and the intensity of the terror-wave unleashed bv a particular emption of disorder that helps dbtinguish it as an a,:t affecting public order from that con. cerning law and order. The instances in question were seriom enough to cause panic and disruption of even flow of life in the locality. Counter-affidavit clearly states .hat the prosecution against the n\"titioner could not succeed because the witne,.ses were not prepared to give evidence for fear of !heir lives. [304 DGJ\n\nHeld forther. that the detention order in question was pa; sed after du~ con sidcr:ition of all relevant grounds. [309 G]\n\nORTGT'\\'AT_. JmuSQJCTION: Writ Petition No. 476 of 1974.\n\n(Petition under Article 32 of the Constitution).\n\nG S. K Sinha A.C., for the. Petitioner.\n\nD. N. Mukherjee a11d G. S:· Chatterjee of S11k11mar Basu & Co., for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J-The petitioner, Ham Ranjan Chatterjee, challenges the order of his detention dated 8 .12. 1973 made under s. 3 of the Maintenance of Internal Security Act, by the District Ma!'!istrate. Purulia. The order states that \"with a view to preventing him from acting\n\n5-423SCI\\75\n\nin any manner prejudicial to the mainte1Jance of public order, it is necessary so to do''.\n\nIt is founded on three grounds which run as under:\n\n\"J. On 3. 6. l 973 at about 19. 00 hrs. at village Kotaldi a thickly populated area, under P. S. Santuri, District Purulia, you with your associates were illegally manufacturing bombs for unlawful purposes from dangerous explosive ip your possession when an explosion took place causing fatal injury to one of your associates.-Sova Gape (s/o Late Chandi Gape of Kataldi, P. S. Santuri. You and your associates' act of preparing bombs presumably for criminal operations as given out by you and your associates and the explosion taking place in a thickly populated area, created panic amongst the local people on further threatened the local people with dire consequences even upto causin.iz death. if they informed police o( your above: said activity. This act of you nnd your associates endangered public safety and\n\ntrnnquillity nnd were prejudicial to the maintennr.ce of Public Order.\n\nIn consequence of your said activiy whtich comes within the purview of Sec. 6(3) of Indian Explosive Act 1884, (Act No. IV of 1884) the maintenance of Public Order was disturbed.\n\n2. On 28. 6. 73 at about 08.00 hrs. you with your associates armed with daggers and other dangerous weapons suddenly entered into the 'Grocery' of Shri Narayan Chandra Garai (S/o Harishikesh Garai) at Kistapur Bazar, P. S. Santuri and demanded commodities from his shop for which you did not intend to pay.\n\nOn refusal 9f the shopkeeper (Shri\n\narayan Chandra Garai), you and your associates furiously attacked him (the shopkeeper) with da, ggers, threatening him others present with instant death if they protested.\n\nDismayed and overawed the shopkeeper (Shri Narayan Garail and the customers fled away f10m the shop for fear of life.\n\nThis violent act created consternation in the area and a]] the shop in the said bazar were cksed down instantly as a conse- ']uence.\n\nYour activitv jeopardised the normal life and free movement of the local people injuring public interest.\n\nYour activity thus attract sub-clause (ii) of Clause (a) of Sub-section ( 1) of section 3 of the Maintenance of Internal Security Act 1971 (Act 26 of 1971 ) .\n\n3. On 3. 7. 73 at about 08. 00 hrs. you along with :your associates armed with daggers and bombs surpriscdly attacked one Siddique Sk. (S/o late Mahaffat Sk.) of Veti, P. S.\n\nSanturi (District Purulia) for extorting money from him (Siddique Sk) for your personal expenses putting him under threat of immediate death.\n\nApprehending danger Siddique Sk. and other present, cried out for help when villagers rushed in.\n\nBeing infuriated, you with your associates, murdcrously attacked them hurling ::ecklessly dangerous bombs at these villagers who got panicky ;:ipd fled away to save their lives. ·\n\nThis violent act committed by you and your associates created alarm and anxiety amongst the local people, endangered security, affected the normal and rightful activities of their lives.\n\nThe said activities thus attract Sub Clause (ii) of Clause\n\n(a) of sub-section (1) of section 3 of the Maintenance of Internal Security Act 1971 (Act 26 of 1971) .''\n\nIn response to the Ruic Nisi, the officer who had passed the impugned order has inter alia averred :\n\n\"With reference to the incidents mentioned in the grounds of detention 1 have been informed by the I.O .. cf the case that one criminal case and two G.D. entries were filed aizainst the petitioner and his associates.\n\nGround No. 1 relates to Sanfuri P.S. case No. 3 dated 5.6.73 under section 6(3) of\n\nthe Indian Explosive Act and Ground No. 2 relates to Santuri P.S.G.D. Entry No. 805 dated 29. 6. 73 and the Ground No. 3 relates to Santuri P.S.G.D. Entry 76 dated 3. 7. 73.\n\nThe detenu was named in F.I.R. al!d G.D. Entries and was arrested on 27. 9. 73 in connection with the first case as he was absconding and he was put in jail custody ( intermediate). The petitioner was ultimately discharged from the cases on the prayer of the Police from the said first case on 4.4.74 case not because there was no evidence against him but because this detenu being a dangerous person witnesses were afraid to depose against him in open court. The order of detention passed by me was served on the detenu on\n\n8. 12. 73 when he was in jail custody.\n\nI say that the detenu was not illegally detained as alleged.\n\nAll statements contrary tu what has been stated herein pefore are denied.\"\n\nThe first contention of Mr. K. K. Sinha, learned Counsel appearing for the petitioner as a.'11icus curiae, is that the tkce incidents mentioned in the grounds of detention are not relevant to the maintenance of \"public order''.\n\nAccording: to Counsel, these incidents concern \"law and order'' only.\n\nOn these premises, it is urged that the impugned order is illegal. Support for this contention has been sought from the dictum of this Court in Dipak Bose v. State of West Benga/(1).\n\nThe second point pressed into argument i.s that in the counter, although something has been said as to why the petitioner was discharged by the Court in one of the cases, TlO such explanation has been g_iven in regard to the other two cases.\n\nThe impugned order, says the Counsel. was passed by the C:etaining authority mechanically without due application of mind.\n\n(!) A.LR. 1972 S.C. 2686.\n\nOn the other hand Mr. D. N. Mukherjee, learned Counsel for the State stresses that the criminal acts which are the foundation of the\n\nimpugned order were, accompanied by such violence that they had 'criously disturbed public tranquillity and the normal flow of life in those localities.\n\nThese activities therefore, maintains 'the Counsel, directly affected the maintenance of 'public order'. Mr. Mukherjee fur-,\n\nther submits that the question whether a particular criminal act raises a problem of 'law and order' and 'public order' is one of fact.\n\nDipak Bose's case (supra), according to him turns on its own facts, and is not a precedent for deciding the instant case having entirely diffm:nt facts.\n\nCounsel has placed reliance on the recent decision dated\n\n20. 12. 74 of this Court in Ram Bali Rajbhar v. State of West Ben ga/(1).\n\nIn regard to the second point canvassed on behalf of the petitioner, Mr. Mukherjee has placed before us a copy of the report or history-sheet of the detenu whereby the Superintendent of Police had moved the District Magistrate for !he preventive d<:tention of the pc•itioner.\n\nWe will deal with the contentions ad seriatum.\n\nIt may be remembered that qualitatively, the acts which affect 'Jaw and order' are not different from the acts which affect 'public order'. Indeed, a state of peace of orderly tranquillity which prevails as a result of the observance of enforcement of internal Jaws and regulations by the Government. is a feature common to the concepts of 'law and order' and 'public order'. Every kind of di:>-\n\norder or contravention of Jaw affects that orderly tranquillity.\n\nThe distinction between the areas of 'law and order' and 'public order' a.s\n\npc!cnc.J by this Court in Am11 Ghosh v. State of West Bengate), \"is one of degree and extent of the reach of the act in question on\n\nsoci, ct\\ ··.\n\nIt is the potentialitv of the act to disturb the even tempo of t); c: iifc of the community which makes it prejudicial to the rnaintenane of public order. If the contravention in its effect is confin, e.d only to a few individuals directly involved as disti1wuishcd from a wide spectrum of the public, it would raise a problem of law and or(lcr onlv.\n\nThese concentric: concept~ of 'law and order' and 'public order' mav have a common 'epicentre', but it is the lenrrth, magnitude and intcnsitv of the terror-wave unleashed bv a particular eruption of dis ..\n\norder that helps distinguish it as an act a!Tectin, Q 'pablic order' froni that concerning 'law and order'.\n\nConsidered in the light of the above principles, it is clear that in the instant case the three !!rounds of detention conv.:ved to the dctcnu !wcl a direct nexus with public order.\n\nThe first incident relates to a bomb explosion in which one person died in a thickly populated area. ·\n\nIt created panic amongst the local people who were threatened by the detenu. and were restrained under pain of death. from informing the police.\n\nThe second incident took place on '.!8. (i. 73 in Kistam1ra Buzar at 8 p.m.\n\nThe petitioner and his associates tried to extort\n\nundr pain of instant death, grocery from the shopkeeper.\n\nCusto-\n\n(!) Writ Petition No. 322 of 1974.\n\n(2) [1970) 3 S.C.R. 288.\n\nmers ikd away for fear of their lives.\n\nConsternation prevailed in the area and all shops in the Bazar closed down immediately.\n\nThus the normal pursuits of life by the people of the locality was thrown out of gear, and the public tranquillity in the area was seriously disturbed.\n\nIn the third incident bombs were recklessly hurled at the villagers causing panic and disruption of even flow of life in the locality.\n\nDipak Buse's case (supra) stands on its own facts.\n\nThere was no allegation in the grounds of detention that the detenu therein or his associates had exploded bombs to cause terror in the locality; while in the instant case the criminal acts in question actually disturbed the normal pursuits of life by the people of the localities concerned.\n\nThe terror-tremors generated by these acts prejudicially affected the general people of the localities.\n\nThus the grounds of detention had a direct nexus with the object sought to be achieved by the detention order.\n\nThe second contention, although attractive, does not stand a close examination.\n\nThe counter-affidavit is no doubt unhappily worded.\n\nAt one place the word 'case' is used in a singular nd at another the same word is used in plural. This has afforded some tenuous ground for this contention. But a perusal of the report, dated 8 .12 .1973, which was submitted by the Superintendent of Police, Purilia (a copy of which has been placed on record) to the District Magistrate makes the matter clear.\n\nThis report discloses several other instances of murder and dacoity in which, according to it, the petitioner was concerned.\n\nThose instances have not been made the basis of the impugned order obviously because they were relatively not proximate in point of time.\n\nThe recent instances of his violent activities given in it, are the same which constitute the ground of detention.\n\nJt has been specifically stated with regard to each of these incidents that the prosecution for those crimes against the petitioner could not succeed because for fear of their lives, witnesses were not prepared to give evidence against the petitioner in court.\n\nThere is thus no reason to doubt the sworn word of the detaining authority that although charges against the petitioner were true, his prosecution in court, could not be pursued because the terror stricken witnesses were not prepared to depose against him in open court.\n\nThe Superintendent of Police made the report to the District Magistrate on 8-12-1973. The impugned order was passed on that very day.\n\nThere was no delay.\n\nWe are satisfied, in the circumstances of the case, that the deten tion order in question was passed after due consideration on relevant grounds.\n\nWe uphold the same, dismiss the petition and discharge the rule.\n\nBefore we part with this judgment, we would like to place on record our appreciation of the valuable assistance rendered by the Counsel on both sides particularly the amicus curiae.\n\nP.H.P.\n\nPetition dismissed.", "total_entities": 48, "entities": [{"text": "RAM RANJAN CHATTERJEE", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "RAM RANJAN CHATTERJEE", "offset_not_found": false}}, {"text": "THE STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 26, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "January 22, 1975", "label": "DATE", "start_char": 51, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "RAM RANJAN CHATTERJEE v.\n\nTHE STATE OF WEST BENGAL January 22, 1975\n\n(V. R. KRISHNA IYER, P. K. GOSWAMI AND R. S. SARKARIA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 70, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 90, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 108, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Internal Security Act, 1971", "label": "STATUTE", "start_char": 149, "end_char": 176, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 324, "end_char": 333, "source": "regex", "metadata": {"linked_statute_text": "Internal Security Act, 1971", "statute": "Internal Security Act, 1971"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 2372, "end_char": 2382, "source": "regex", "metadata": {"statute": null}}, {"text": "G S. K Sinha", "label": "LAWYER", "start_char": 2406, "end_char": 2418, "source": "ner", "metadata": {"in_sentence": "G S. K Sinha A.C., for the."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 2447, "end_char": 2462, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee a11d G. S:· Chatterjee of S11k11mar Basu & Co., for the Respondent.", "canonical_name": "D. N. Mukherjee"}}, {"text": "S11", "label": "PROVISION", "start_char": 2489, "end_char": 2492, "source": "regex", "metadata": {"statute": null}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 2576, "end_char": 2584, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J-The petitioner, Ham Ranjan Chatterjee, challenges the order of his detention dated 8 .12."}}, {"text": "Ham Ranjan Chatterjee", "label": "PETITIONER", "start_char": 2604, "end_char": 2625, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J-The petitioner, Ham Ranjan Chatterjee, challenges the order of his detention dated 8 .12.", "canonical_name": "RAM RANJAN CHATTERJEE"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2694, "end_char": 2698, "source": "regex", "metadata": {"statute": null}}, {"text": "3. 6. l 973", "label": "DATE", "start_char": 3013, "end_char": 3024, "source": "ner", "metadata": {"in_sentence": "It is founded on three grounds which run as under:\n\n\"J. On 3."}}, {"text": "Kotaldi", "label": "GPE", "start_char": 3057, "end_char": 3064, "source": "ner", "metadata": {"in_sentence": "at village Kotaldi a thickly populated area, under P. S. Santuri, District Purulia, you with your associates were illegally manufacturing bombs for unlawful purposes from dangerous explosive ip your possession when an explosion took place causing fatal injury to one of your associates.-Sova Gape (s/o Late Chandi Gape of Kataldi, P. S. Santuri."}}, {"text": "P. S. Santuri", "label": "OTHER_PERSON", "start_char": 3097, "end_char": 3110, "source": "ner", "metadata": {"in_sentence": "at village Kotaldi a thickly populated area, under P. S. Santuri, District Purulia, you with your associates were illegally manufacturing bombs for unlawful purposes from dangerous explosive ip your possession when an explosion took place causing fatal injury to one of your associates.-Sova Gape (s/o Late Chandi Gape of Kataldi, P. S. Santuri."}}, {"text": "Purulia", "label": "GPE", "start_char": 3121, "end_char": 3128, "source": "ner", "metadata": {"in_sentence": "at village Kotaldi a thickly populated area, under P. S. Santuri, District Purulia, you with your associates were illegally manufacturing bombs for unlawful purposes from dangerous explosive ip your possession when an explosion took place causing fatal injury to one of your associates.-Sova Gape (s/o Late Chandi Gape of Kataldi, P. S. Santuri."}}, {"text": "Sec. 6(3)", "label": "PROVISION", "start_char": 3966, "end_char": 3975, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Explosive Act 1884", "label": "STATUTE", "start_char": 3979, "end_char": 4004, "source": "regex", "metadata": {}}, {"text": "28. 6. 73", "label": "DATE", "start_char": 4081, "end_char": 4090, "source": "ner", "metadata": {"in_sentence": "On 28."}}, {"text": "Narayan Chandra Garai", "label": "OTHER_PERSON", "start_char": 4227, "end_char": 4248, "source": "ner", "metadata": {"in_sentence": "you with your associates armed with daggers and other dangerous weapons suddenly entered into the 'Grocery' of Shri Narayan Chandra Garai (S/o Harishikesh Garai) at Kistapur Bazar, P. S. Santuri and demanded commodities from his shop for which you did not intend to pay."}}, {"text": "arayan Chandra Garai", "label": "LAWYER", "start_char": 4419, "end_char": 4439, "source": "ner", "metadata": {"in_sentence": "On refusal 9f the shopkeeper (Shri\n\narayan Chandra Garai), you and your associates furiously attacked him (the shopkeeper) with da, ggers, threatening him others present with instant death if they protested."}}, {"text": "Narayan Garail", "label": "LAWYER", "start_char": 4635, "end_char": 4649, "source": "ner", "metadata": {"in_sentence": "Dismayed and overawed the shopkeeper (Shri Narayan Garail and the customers fled away f10m the shop for fear of life."}}, {"text": "section 3", "label": "PROVISION", "start_char": 5032, "end_char": 5041, "source": "regex", "metadata": {"statute": null}}, {"text": "Maintenance of Internal Security Act 1971", "label": "STATUTE", "start_char": 5049, "end_char": 5090, "source": "regex", "metadata": {}}, {"text": "3. 7. 73", "label": "DATE", "start_char": 5118, "end_char": 5126, "source": "ner", "metadata": {"in_sentence": "On 3."}}, {"text": "Siddique Sk", "label": "RESPONDENT", "start_char": 5234, "end_char": 5245, "source": "ner", "metadata": {"in_sentence": "you along with :your associates armed with daggers and bombs surpriscdly attacked one Siddique Sk. (", "canonical_name": "Siddique Sk"}}, {"text": "Siddique Sk", "label": "RESPONDENT", "start_char": 5450, "end_char": 5461, "source": "ner", "metadata": {"in_sentence": "Apprehending danger Siddique Sk.", "canonical_name": "Siddique Sk"}}, {"text": "section 3", "label": "PROVISION", "start_char": 5983, "end_char": 5992, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act 1971", "statute": "the Maintenance of Internal Security Act 1971"}}, {"text": "Maintenance of Internal Security Act 1971", "label": "STATUTE", "start_char": 6000, "end_char": 6041, "source": "regex", "metadata": {}}, {"text": "Ruic Nisi", "label": "OTHER_PERSON", "start_char": 6083, "end_char": 6092, "source": "ner", "metadata": {"in_sentence": "In response to the Ruic Nisi, the officer who had passed the impugned order has inter alia averred :\n\n\"With reference to the incidents mentioned in the grounds of detention 1 have been informed by the I.O .. cf the case that one criminal case and two G.D. entries were filed aizainst the petitioner and his associates."}}, {"text": "section 6(3)", "label": "PROVISION", "start_char": 6451, "end_char": 6463, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act 1971", "statute": "the Maintenance of Internal Security Act 1971"}}, {"text": "27. 9. 73", "label": "DATE", "start_char": 6712, "end_char": 6721, "source": "ner", "metadata": {"in_sentence": "The detenu was named in F.I.R. al!d G.D. Entries and was arrested on 27."}}, {"text": "4.4.74", "label": "DATE", "start_char": 6937, "end_char": 6943, "source": "ner", "metadata": {"in_sentence": "The petitioner was ultimately discharged from the cases on the prayer of the Police from the said first case on 4.4.74 case not because there was no evidence against him but because this detenu being a dangerous person witnesses were afraid to depose against him in open court."}}, {"text": "8. 12. 73", "label": "DATE", "start_char": 7168, "end_char": 7177, "source": "ner", "metadata": {"in_sentence": "The order of detention passed by me was served on the detenu on\n\n8."}}, {"text": "K. K. Sinha", "label": "LAWYER", "start_char": 7374, "end_char": 7385, "source": "ner", "metadata": {"in_sentence": "The first contention of Mr. K. K. Sinha, learned Counsel appearing for the petitioner as a.'11icus curiae, is that the tkce incidents mentioned in the grounds of detention are not relevant to the maintenance of \"public order''."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 8246, "end_char": 8261, "source": "ner", "metadata": {"in_sentence": "On the other hand Mr. D. N. Mukherjee, learned Counsel for the State stresses that the criminal acts which are the foundation of the\n\nimpugned order were, accompanied by such violence that they had 'criously disturbed public tranquillity and the normal flow of life in those localities.", "canonical_name": "D. N. Mukherjee"}}, {"text": "Mukherjee", "label": "OTHER_PERSON", "start_char": 8621, "end_char": 8630, "source": "ner", "metadata": {"in_sentence": "Mr. Mukherjee fur-,\n\nther submits that the question whether a particular criminal act raises a problem of 'law and order' and 'public order' is one of fact."}}, {"text": "Dipak Bose", "label": "OTHER_PERSON", "start_char": 8775, "end_char": 8785, "source": "ner", "metadata": {"in_sentence": "Dipak Bose's case (supra), according to him turns on its own facts, and is not a precedent for deciding the instant case having entirely diffm:nt facts.", "canonical_name": "Dipak Bose"}}, {"text": "20. 12. 74", "label": "DATE", "start_char": 8987, "end_char": 8997, "source": "ner", "metadata": {"in_sentence": "Counsel has placed reliance on the recent decision dated\n\n20."}}, {"text": "[1970) 3 S.C.R. 288", "label": "CASE_CITATION", "start_char": 11410, "end_char": 11429, "source": "regex", "metadata": {}}, {"text": "Dipak Buse", "label": "OTHER_PERSON", "start_char": 11850, "end_char": 11860, "source": "ner", "metadata": {"in_sentence": "Dipak Buse's case (supra) stands on its own facts.", "canonical_name": "Dipak Bose"}}, {"text": ".12", "label": "DATE", "start_char": 12740, "end_char": 12743, "source": "ner", "metadata": {"in_sentence": "But a perusal of the report, dated 8 .12 .1973, which was submitted by the Superintendent of Police, Purilia (a copy of which has been placed on record) to the District Magistrate makes the matter clear."}}, {"text": ".1973", "label": "DATE", "start_char": 12744, "end_char": 12749, "source": "ner", "metadata": {"in_sentence": "But a perusal of the report, dated 8 .12 .1973, which was submitted by the Superintendent of Police, Purilia (a copy of which has been placed on record) to the District Magistrate makes the matter clear."}}, {"text": "Purilia", "label": "GPE", "start_char": 12804, "end_char": 12811, "source": "ner", "metadata": {"in_sentence": "But a perusal of the report, dated 8 .12 .1973, which was submitted by the Superintendent of Police, Purilia (a copy of which has been placed on record) to the District Magistrate makes the matter clear."}}, {"text": "8-12-1973", "label": "DATE", "start_char": 13898, "end_char": 13907, "source": "ner", "metadata": {"in_sentence": "The Superintendent of Police made the report to the District Magistrate on 8-12-1973."}}]}
{"document_id": "1975_3_306_332_EN", "year": 1975, "text": "3QG\n\nMOHD. SHAHBUDDIN & ORS.\n\nUNION OF INDIA & ORS.\n\nJanuary 22, 1975 f P. JAGANMOHAN REDDY, P. N. BHAGWATI AND P. K. GOSWAM1,, JJ.J\n\nStates Reorganisation Act 1956-Equatio11 of posts how far cmz court B interfere-Wh&ther decisions taken at the Chief Mi11isiers' co11ference must be co111plied with--!/ equation ca11 be based on irrelerant and irrational com'iderations or erroneous assumptions.\n\nThe validity of the equation of posts of graduate teachers allotted to ih1~ new State of Mysore constituted under the States Reorganisation Act, 1956. was challenged. The new State of Mysore was formed comprising the territories of the existing States of Mysore, Coorg, and part3 of existing States of Hyderabad, C Madras and Bombay. The graduate teachers in each of the 5 integrating areas were divided into two grades a lower grade and a higher grade as g:vrn below:\n\n---·--------~-~--\n\nIntegrating area Lower Grade Higher Grade\n\nMysore Rs. 60-150 Rs. 130-200\n\nCoorg Rs. 80-220 Rs. 100-300\n\nBo; nbay Rs. 70-200 Rs. 210-300\n\nMadras Rs. 85-175 Rs. 165-245\n\nHyderabad Rs. 130-190 Rs. 154-275\n\n--------~----\n\nOn the constitution of the various new States the qtte.stion of equation of posts. bsorption of ?er:vice personnel in the eguated posts nd the dee.rmi nation of mter se semonty cropped up. A meeting of the Chief Secretam:s of these States was held at Delhi in May, 1956, at the invitation of the Central F Go1ernment. The. following decisions were taken at that meeting :\n\n\"It was agreed that in deter.mining the equation of posts, the follow ing factors should be borne in mind :-\n\n1, i) the natme and duties of a post;\n\nI ii) th~ responsibiliiies and powers exerciscJ by the officer holding a post: the extent of tenitorial or other charge held or responsibilities discharged; (}\n\n(iii) the minimum qualifications. if any, prescribed for recruitment to the\n\nest;\n\nfi1) the salary of the post.\n\nIt was agreed that in determining relatil'e seniority as betwee~ two persons holding posts declared equrvalenr to each other, and drawn from different States the following points should be taken into account :- H\n\nCi) lenoth of continuous service, 1'hethcr temporary or permanent, in a pa; ticulc\\i graue; this should exduJe pcrioJs for which an appointment is held in a purely stop-gap or fo1 tmtous arrangement:.\n\nSHAHBUDDIN V, UNION 307\n\nI.ii) age of the person; other factors being equal for instance, seniority may be determined on the basis of' age,\n\nIt was also agreed that as far as possible, the in.ter se seniority of otlkers drawn from the same State should not be disturbed.\n\nIn February, 1958, the provisional inter-State list of teachers in the graduate tutorial cadre for new Mysore State was prepared.\n\nThis list was prepared on the basis that the posts of ex-Hyderabad teachers in the grade. of Rs. 154-275 were equated with those of ex-Mysore teachers in the grade of Rs. 130-200,\n\nwhile. the posts of ex-Coo'rg teachers in the grade of Rs. 100-300 were equated with those of ex-Mysore teachers in the grade of Rs. 60-150.\n\nThe Coorg teachers in. the grade of Rs. 100-300 were dissatisfied with the\n\nequation of their posts with those of ex-Mysore teachers in the grade of Rs. 60-150. They, therefore, filed a Writ. Petition in the High Court o~ Mysore.\n\nOne of the contentions of the petitioners was upheld by the High Court in the year 1%4 and the State Government was directed to prepare a provisional\n\ninter-State seniority list of teachers. in the graduate tutorial cadre. Pursuant to the mid direction the State Government prepared a provisional Inter-State seniority list in July, 1964.\n\nThereafter a final inter-State seniority I ist of teachers in the graduate tutotrial cadre was prepared in December, 1966, which was different from provisional list prepared in 1964.\n\nIn the final seniority list the equation of posts was different from the one proposed in the provisional inter-State seniority list. The ex-Hyderabad and Coorg teacl)e.rs filed a petition in the High Court of Mysore for quashing and setting a'ide the equation of posts on which the final inter-State seniority was based.\n\nThe High Court by its judgment delivered in 1969 allowed the writ pdition on the ground that the seniority list was pr_epared without giving any opportunity to ex-Hyderabad teachers. and 'that vitiated the equation of posts.\n\nAfter considering the representations filed by all the teachers concerned a provisional inter-State seniority list was published in November, 1969. Though the claim of the ex-Hyderabad teachers was not accepted in toto, they were satisfied with the decision of the Central Government contined in the provisional list puhlished in 1970. The ex-Coorg teachers were dissatisfied and, therefore, they made rpresentatiom complaining against the decision of the Central Government. In December. 1971, the.final Inter-State seniority list was published. The final list varied the equation to the disadvantage of the ex-Hyderabad teachers as compared to the provisional list The ex-Hyderabad teachers and ex-Coorg teachers therefore, filed the present petition in this Court.\n\nIt was contended before this Court by the ex-Hyderabad teachers :\n\n(I) Equation of posts in the final list different from the provisional list made by the Central Government was without giving :1ny opportunity to the Hyderabad teachrs to make a proper representation and was in violation of the principles of natural justice.\n\n( 2) The Central Government failed to take into account the 4 factors decided upon at the Chief Secretaries Conference;\n\n( 3) The equation of posts made by the Central Government was based on erroneous assumptions and irrelevant considerations and dis-. closed non-application of mind to the material and relevant facts.\n\nHELD : The power to determine equation of posts belon$s to the Central Government under section 115(5) of the States Reorganisation Act and this re\" er must be exercised by the Central Government after giving an opportun it-, tc) the allocated Government servant to make representations in regard to thi,; m~, tter. The Central Government is bound to have regard to the 4 factors de;:idecl upo1'1 at the Conference of the Chief Secretaries held in l\\fay, 1956 in detern•ining equation of posts. It is not open to the court to consider whethr the equation of posts made by the Central Government is right or wrong if those 4 factors have been proper!;' taken into account. Wh; lt the court can <; eru!inise is only whether the 4 factors agreed upon at .the Chief Sccre1:1r; es C0cfo\"''nce ha, e been properlv taken into accoun•. If the court find5 that one\n\nor more of these 4 factors have been 'gnored the court can strike down the equation of posts made by the Central Government. The Court can also interfere if it finds that th'-'! decision of the Central Government in regard to the equation of posts is maiafide or without application of mind. The Court may also intervene if it coms to the conclusion that the decision of the Central Government is based on irrelevant considerations or wrong assumptions or that it is so irrational or per:<erse that no reasonable person properly instructt!d and\n\ntaking into acc:ount relevant factors could possibly arrive at it. [316H-.317E]\n\nHELD FURTHER : The ex-Hyderabad teachers, did make representatien after the judgment of the High Court delivered in 1969 and the Government took those representations into cornideration before making the final list. It\n\nis not possible to say that the decision was taken by the Central GovernmeBt without giving an opportunity to the ex-Hyderabad teachers to make a proper representation or that there was auy violation of the principles or natural justice. [3190~-G]\n\nHELD FURTHER :-The final seniority list does not give the reasons which weighed with the Central Government in making the equation of posts.\n\nHowe\\er, in the counter-affidavit filed in this Court on behalf of the Government reasons have hcen disclosed why the equation of oosts was done in the manner\n\ngiven in the final list. The Central Government in determining equation of posts omitted to take into account the relevant considerations and failed to apply the criteria of the first and second factors decided at the Chief Se:retaries meeting.\n\nThe Central Govt. d cl not compare the post of ex-Hyderabad teachers in the grade of Rs. 154-275 and the ex-Bombay. ex-Madras and ex-Mysore teachers in the higher grades on lhe basis of the criteria of the first and second factors.\n\nThe Central Government also il?Jlored ~!together the fourth factor, narndv. the salary of the post. The equation had to be done by reference to the four criteria laid down in the Conference of the Chief Secretaries. It was immaterial w:ltether the grades which were sought to be equated were initial recruitment grades or promotional °'rades.\n\nThere was no requirement either of law or of principle that one initial recruitm1nt grade could be equated only with another initial recruitment grade or that one promotional grade could be equated with only another promotional grade. Even factually the Central Government was not right in saying that the ex-Hyderabad grade of Rs. 154-275 was not a promotional grade but an initial recruitment grade for trained graduates. [3 l9H-\n\n320B; 321H; 323F-G; 324 E-G; 326C-G]\n\nHELD FURTHER : The Central Government failed to take into ac:rnunt an important and levant consideration, namely, that of the qualifications required for recruitment to the posts sought to be equated. At any given point of time, there was always a large number of untrained graduates in the ex- Mysore grade of Rs. 6()-150 whereas in ex-l:Iyderbad all teachers in the grade of Rs. 150-275 were trained graduates. [329 E-F]\n\nHELD FURTHER : The equation of posts made by the Central Government is illegal and invalid in so far as it relates to the posts of ex-Hyderabad teachers in the grade of Rs. 154--275. The iinal seniority list is also set aside to the extent it relates to the posts of ex-Hyderabad teachers in the grade of Rs. 154-275. and the Central Government is directed to make fresh equation of posts after taking into account all relevant facts having material bearing on the qU;!stion anr' in the light of the observations contained in the judgment. [329H-330EJ\n\nHELD FURTHER. The case of ex-Coorg teachers stands on , ne same footing as that of ex-Hyderabad teachers in some materia: respects. The Central Govern: men! failed to take into account the four criteria laid down in the Chief Secretaries Conferen:, e.\n\nThe Central Government also proceeded on an erroneous basis. These infirmities vitiated the equation of posts. The equation of posts as also final seniority list are based upon it, in so far as they relate to the posts of ex-Coorg teachers in the grade of Rs. 100-300 are therefore quashed and set aside the Central Government is directed to make f1nh equation of posts and after taking into account all relevant facts havinrr material bearine on the question and :n the liht of the observations contained in the judgment. [331K--\n\n.D: 332A-BJ\n\nSHAHBUDDIN v. UNION (Bhagwati, J.) 309\n\nORIGINAL APPELLATE JURISDICTION : Writ Petition Nos. 12 & 149 of 1972. '\n\nPetitions Under Article 32 of the Constitutio11.\n\nD. V. Patel and K. N. Bhatt, for the petitioners (in WP. J\\o. 12/ 72).\n\n11. B., P. P. Bhopa1111a and Narayan Nettar, for the petitioner (In WP. No. 149/72).\n\n5. N. Prasad and R. N. Sachthey, for respondent No. 1 (In WP.\n\nNo. 12/72).\n\nK. S. Puttaswamy Govt. Ad1, ocate for Karnataka and M. Veerappa, for rspondents Nos. 2 & 3 (In WP. No. 12/72).\n\nS. S. Jaya/i and B. P. Singh, for respondents Nos. 4-9, 10-12 & 14 (ln \\VP. No. 12/72) and respondent Nos. 4-9 (Jn WP.\n\nNo. 149/72).\n\nNarayan Ne/tar, for respondent No. 13 (In WP. No. 12/72).\n\n. S. N. Prasad and R. N. Sachthey, for respondent No. 1 (In WP. No. 149 /72).\n\nM. Veerappa, for Respondents Nos. 2 & 3 (In WP. No. 149/72).\n\nThe Judgment of the Couruwas delivered by\n\nBHAGWATI, J.--The short question tha~ arises for consideration in these petitions is as to the validity of the equation of posts of graduate teachers allotted to the new State of Mysore constituted under the States Reorganisation Act, 1956.\n\nThis A<.:t re-drew the boundaries of the different States in India with effect from .1st November, 1956 and inter alia a new State of Mysore was formed comprising the territories of the existing States of Mysore and Coorg, four districts in the existing State of Bombay, three districts in the existing State of Hyderabad and one district in the existing State of Madras.\n\nPrior to the reorganisation, each of these five integrating areas, which went to make up the new State of Mysore, had a different set up of school administration. The schools in the Mysore and Coorg areas were classified into Primary schools, Middle schools and High schools. In the Bombay and Madras areas,. the schools were classified into Primary schools and Secondary schools and in the Hyderabad area the classification was into Primary schools, Middle schools and composite schools. The Secondary schools in the Bombay and Madras areas and the composite schools in the Hyderabad area comprised the same classes <ts the Middle schools and High Schools in the Mysore and Coorg areas The posts of teachers in these schools were inter-changeable with the posts in the Inspectorate Branch in the Education Department and the Training Institutions and they belonged to common cadres.\n\nWe shall, for the sake of convenience, refer to the persons occupving the posts of teachers in these schools as also the persons occupying COPresponding posts in the Inspectorate Branch and the Training Institution as \"graduate teachers\".\n\nThese petitions are concerned only with graduate teachers so described and, therefore, we shall confine our discussion fo them alone.\n\nThe graduate teachers in each of the five integrating areas were divided into two grades, a lower graue and a higher grade and the pay scales of these two grades differed from one integrating area to the other as shown by the following particulars :\n\nIntegrating area Lower Grade Higher Grade\n\n~·-\n\nMy;, ore Rs. 60-150 Rs. 130-200\n\nCoorg Rs. 80-220 Rs. 100-300\n\nBombay Rs. 70-200 Rs. 210-300\n\nMadras Rs. 85-175 Rs. 165-245\n\nHyderabad Rs. 130-190 Rs. 154-275\n\nThere was alsu one post of Principal, Janatha College in the C:oorg area prior to the reorganisation which carried a pay scale of Rs. 200-\n\n300.\n\nThis was a college started on an experimental basis under the Five Year Plan and the post of Principal was created as a temporary post under a Government Order dated 7th March, 1955.\n\nOn the constitution of the new State of Mysore by corning together d these five integrating areas, a question arose as to how the graduate teachers allotted to the new State of Mysore from these five integrating\n\naras silould be adjusted so as to form an integrated service in the new State of Mysore and it was, therefore, necessary to decide where and at what place they should be adjusted in the constitution of the new service. This process necessarily involved equation of posts, absorption of service personnel in the equated posts and the deterirnnation of inter se seniority.\n\nNow, this was not a problem confinid to one service or one State alone and principles had, therefore, to be evolved which would be uniformly applicable in relation to integration of services in all the States which were going to be affected by the reorganisation.\n\nA meeting of the Chief Secretaries of these States wJs accordingly held at Delhi on 18th and 19th May 1956 at the invitation of the Central Government.\n\nCertain decisions were taken at this meeting as to the general principles 'that should be observed w!th\n\nregard to the work of integration of the services.\n\nThe Government of India, by their letter dated 3rd April, 1957, informed the State\n\nSHAHBUDD!N v. UNION (Bhagwati, !.) 311\n\nGovernments that they had decided that the work of integration of services should be dealt with by the State Governments in the light ot general principles already decided at the meeting of the Chief Secre taries.\n\nThe State Governments were also informed that the Central Government was constituting Advisory Committees for assisting them in dealing with the representations by the officers affected by the reorganisation. The principles for determining equation of posts and inter se seniority of allocated Government servants reached at the confrrc;;.:e of the Chief Secretaries were as follows :\n\n \"It was agreed that in determining the equation of posts, the following factors should be borne in mind :-\n\n(i) the nature and duties of a post;\n\n(iil the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged;\n\n(iii) the minimum qualifications, if any, prescribed for recruitment to the post;\n\n(iv) the salary of the post;\n\nIt wac agreed that in determining relative seniority as between two persons holding post a declared equivalent to each other, and drawn from different States, the following points should be taken into account :-\n\n(i) Length of continuous service, whether temporary or permanent, in a particular grade; this should exclude periods for which an appointment is held in a purely stop-gap or fortuitous arrangement;\n\n(ii) age of the person; other factors being equal, for instance, seniority may be determined on the basis of age.\n\nNote : It was also agreed that as far as possible, the inter se seniority of officers drawn from the same State should not be disturbed.\n\nThough these principles were laid down as far back as 18th and'. 19th May, 1956, long prior to the reorganisation, neither the Centrar Gowrnment nor the State Government took any steps for the purpose of determining the equation of posts of graduate teachers and their i111er se seniority.\n\nOn 3rd February, 1958, the Director of Public lnstruction circulat::d a Provisional Inter State List of teachers in the graduate tutorial cadre and this list was prepared on the basis that the\n\nposts of ex-Hyderabad teachers in the grade of Rs. 154-275 were equated with those of ex-Mysore teachers in the grade of Rs. 130- 200, while the posts of ex-Coorg teachers in the grade of Rs. 100- 300 were equated with those of ex-Mysore teachers in the grade of Rs. 60-150.\n\nPresumably, on the assumption that this list would\n\nbe finalised at an early date by the Central Government, the State Go\\lernment made temporary promotions to Class II Gazetted posts on the basis of this list and some of the ex-Hyderabad teachers i11 the grade of Rs. 154-275 were consequently promoted to Class II Gazetted posts and out of them a few were even promoted to Class l posts in an officiating capacity.\n\nSo far as the Coorg tea:::hers in the grad~ of Rs. 100--300 were concerned, they were dissatisfied with the equation of their posts with those of ex-Mysore teachers in the grade of Rs. 60-150 and they accordingly challenged this list by filing Writ Petition No. 603 o_f 1961 in the High Court of Mysore.\n\nOm: of the contentions raised by them was that this list circulated by the Director of Public Instruction had no validity, since the power to determine\n\nc4ua1i1JJ1 of posts and inter se seniority of allocated teachers in the\n\ni; radmil~ tuwrial cadre was vested in the State and the State Government. should, therefore, be directed to prepare a provisional Inter State SeniC'fity List in accordance wit.h the requirements of the Act. This contention was upheld by a Division Bench of the High Court by a judgment dated J 2th June, 1964 and the State Government was directed to prepart: a provisional Inter State seniority list of teachers in the graduate tutorial cadre. Pursuant to this direction of the High C011rt :he State Government prepared a Provisional Inter StatP. Seniority List and published it under a notification dated 2nd July, 1964.\n\nThis Provisional Tnter State Senioritv List was based on equation of posts , set out in Annexure II to the \"List. The posts of ex-Hyderabad teachers in the grade of Rs. 154-275 and the posts of cx-Coorg teachers in the grade of Rs. 100-300 as also the post of Principal, .fanatha College in th1: grade of Rs. 200-300 were equated with the posts of ex-Bombay teachers in the grade of Rs. 210-300, the posts 0f ex-Madras teachers in the grade of Rs. 165-245 and the posts of ex-Mysore. teachers in the grade of Rs. 130-200, while the posts of ex-Hyderabad teachers in the grade of Rs. 130-190 and the posts of ex-Coorg teachers in the grade of Rs. 80-220 were equated with the posts of ex-Bombay teachers in the grade of Rs. 7b-200. the posts of ex-Madras teachers in the grade of Rs. 85-175 and the posts of ex-Mysore teachers in the grade uf Rs. 60-150.\n\nIt was on the basis of this equation of posts that the seniority of teachers in the\n\ngraduate tutorial cadre was determined under the Provisional Inter State Sesnority List published by the State Government.\n\nThe petitioners in Writ Petition No. 12 of 1972 (hereafter referred to as the ex-Hyderabad petitioners) are all graduates of recognised universities and they also hold the degree of H.T. or B.Ed. and are accordingly trained graduate teachers. The ex-Hyderabad petitioners were originally appointed in the erstwhile State of Hyderabad in posts in the grade of Rs. 130-190 and subsequently in course of time they were promoted strictly in accordance with the principle of seniority-cum-merit to the grade of Rs. 154-275 on various dates before 1st November,\n\n1956. The ex-Hyderabad petitioners were thus in the grade of Rs. 154-275 a:t the time of the reorganisation when thry were allocated to the nrw State of Mysore from the cx- Hyderabad area. Since the posts held by the ex-Hyderabad petitioners were equated with those of ex-Mysore teachers in the grade of Rs.\n\nSHAHBUDDIN v. UNION (Bhagwati, J.) 313\n\nI 30-200 under Annexure II to the Provisional Inter State Seniority List and their seniority vis-a-vis the other allocated teachers was. determined on the basis of such equation of posts, they did not have any grievance with the Provisional Inter State Seniority List and they accordingly did not make any representation to the State or Central.\n\nGovernment against it.\n\nThe petitioners in Writ Petition No. 149 of 1972 (hereinafter referred to as the ex-Coorg petitioners) are also graduates of recognised universities and hold the degree of B.T. or B.Ed. and are trained graduate; teachers. Out of them, petitioners Nos. 1 to 3 were originally appointed in the grade of Rs. 80-220 but on ootaining the degree of B.T. rhey were promoted to the grade Rs. 100-300. Petitioners Nos. 4 to 15 were trained graduates directly appointed in the grade of Rs. 100-300. Petitio, ners Nos. 16 to 27 were originally appointed in the grade of Rs. 80-200, but they subsequently obtained the degree of B.T. and were accordingly promoted to the grade of Rs. 100-300.\n\nAnd similarly, petitioner's Nos. 28 to 33 were originally appointed in. the grade of Rs. 80-220 as untrnined graduates but on obtaining the degr5e of B.T. they were promoted in the grade of Rs. 100-300. The ex-Coorg petitioners were thus all in the grade of Rs. 100-300 at the time of reorganisation when they were allocated to the new State t'f Mysore from the ex-Coorg area. They also did not make any representation against the Inter State Provisional List published by the State Government as the posts held by them were equated with those of ex-Mysore teachers in the grade of Rs. 130-200 and they were satisfied with that equation and the inter se seniority based upon it.\n\nThe State Government thereafter by a notification dated 27th December, 1965 published the final Inter-State Seniority List of teachers in the graduate tutorial cadre in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in accord- Diice with the decision of the Government of India under the provision of section 115 (S) of the Act. The ex-Hyderabad and the ex-Coorg petitioners were surprised to find that this Final Inter State Seniority List was based on an equation of posts which was different from the one proposed in the Provisional inter State Seniority List.\n\nThe final Inter State Seniority List classified the posts of teachers into three cndrcs, the first being promotional cadre, . the second being intermediate cadre and the third. being initial recruitment cadre.\n\nThe posts of ex-Bombay teachers in the grade of Rs. 210~300, the posts of ex-Madras teache.rs in the grade of Rs. 165-245, the posts of ex- Mysorc teachers in the grade of Rs. 130-200 and the post of Principal. Janatha College in. the grade of Rs. 200-300 were equated and placed in promotional cadre, while the .posts of ex-Hyderabad teachers in the grade of Rs. 150--275 as well as the grade of Rs. 130-\n\n190 and the posts of ex-Coorg teachers in the grades of Rs. 110-300 as well as the grade of Rs. 60-200 were equated with the posts of ex-Bombay teachers in the grade of Rs. 70'-200, the posts of ex- Madras teachers in the grade of Rs. 85-175 and the posts of ex-\n\nM:vsore teachers in the grade of Rs. 60-150 and placed in the initial recruitment cadre.\n\nThe result of this equation of oosts was that the ex-Hyderabad petitioners who were in the grade of Rs. 154-275 and\n\n314 SUl'REME COURT REPORTS\n\n(1975) 3 S.C.R.\n\nthe ex-Coorg petitioners who were in the grade of Rs. 1.00-300 were ; pushed down in seniority by hundred of places and their future prospects of promotions were seriously prejudiced.\n\nThe ex-Hyderabad petitioners along with some other ex-Hyd1)ra bad teachers thereupon filed a petition in the High Court of Mysore for quashing and setting aside the equation of posts on which the final Inter State Seniority List was bas1d. There were several grounds on which the validity of the equation of the posts was challenged but one , ground which appealed to the High Court was that since the equation of posts made in the Provisional Inter State Seniority List was not disadvantageous to the ex-Hyderabad teachers and they were satisfied with it, they' did not make any representation placing all the relevant facts in regard. to their case before the Central Government and the .change in equation of posts in the final Inter State Seniority Listwhich was disadvantageous to }he ex-Hyderabad teachers-was thus without any opportunity to them to have their say in the matter and that vitated the equation of posts. The High Court on this view, by an order dated 8th January, 1969, set aside the equation of post~ on the basis of which the Final Inter State Seniority List was prepared ;:md .directed that \"that part of the Final Inter State Seniority List which referred to the ex-Hyderabad teachers should be made again by the Central Government after consideration of all the relevant facts and circumstances and the ex-Hyderabad petitioners and all others who were likely to be affected by the determination to be made by the central Government should submit their representations in regard to this matter within a month from the date of the order of the High Court.\n\nThe ex-Comg teachers also filed similar petitions in the High Court of Mysore challenging the validity of equation of posts made in the Final Inter State Seniority List -since the posts held by them were equated with those of ex-Mysore teachers in the grade of Rs. 60_:.:t 50 and that was done by th::: Central Government without giving any opportunity to them to make a representation. The High Court, by an order dated 24th February, 1969, set aside the equation of the posts of cx-Coorg teachers in the grade of Rs. 100-300 with those of ex- Mysore teachers in the grade of Rs. 60-150 on the ground that the Central Government had departed from the equation of posts made in\n\nthe Provisional Inter State Seniority List without giving any opportunity to the ex-Coorg teachers to make representations against such departmc and directed that the Central Government should make a prnrcr equation of posts. after giving to' the ex-Coorg teachers an opportunity to make representations in regard to the matter.\n\nPursuant to the orders of the High Court dated 8th January, 1969 and 24th February, 1969 the ex-Hyderabad teachers in the grade of Rs. 154-275 and the ex-Coorg teachers in the grade of Rs. 100-300 made representations to the Central Government contending that the posts held by them should be equated with those of ex-Mysore teachers 'in the grad:: of Rs. 130--300 and placed in promotional cadre. The ,.\n\nSHAHBUDD!N v. UNION (Bhagwati, J.) 315\n\nCentral Government after considering these representations as also representations received from other allocated teachers arrived at a ten- .\n\ntative decision in egard. to the equation of posts and on the basis of such tentative decision a Provisional Inter State Seniority List was published by the State Government by a notification dated 20th November, 1970. The equation of posts on the basis of which this Provisional Inter State Senioiity List was prepared was set out in Annexure I to the List. The posts of ex-Coorg t_eachers in the grade of Rs. IG0-300 were equated with tho.se .of ex-Mysore teachers in the grade of Rs. 60-150 and placed in category II which corresponded to the initial recruitment cadre. However, so far as the posts of ex-Hyderabad teachers in the grade of Rs. 154-275 were concerned, they were treated as a special class and it was decided that \"it is not necessary to equate this post in Categoy II, but for purposes of prornoti0n to the next higher Category, the teachers who were in the scale of R3. 154-275 may be placed \"en-bloc\" immediately above the first teachers from Hyderabad in the scal_e of Rs. 130-190 who finds place in C;; tc-gory II, thus maintaining the parent State Seniority of the teachers coming from the former State of Hyderabad.\" Vide note at the foot of Annexure I to the Provj_sional Inter State Seniority List.\n\nThough the claim of the ex-Hyderabad teachers to equation of their posts with those of ex-Mysore teachers in the grade of Rs. 130- 200 in Category I, which corresponded to the promotional grade, was not accepted by the Central Government, they were satisfied with the decision of the Central Government to place the en-bloc immediately above the first ex-Hyderabad teacher in the grade of Rs. 130-190 and <hey accordingly did not make any representation to the Central Government contending that the posts held by them should be equated with those of ex-Mysore teachers in the grade of Rs. 130-200 and placed in Category I. The ex-Coorg teachers were, however, dissatisfied with the decision of the Central Government equating the posts held by them with those of ex-Mysore teachers in the grade of Rs: 60-\n\n150 in C§ltegory II and, therefore, they made representations complaining against the decision of the Central Government and submitting that the posts held by them should be equated with those of ex-Mysore teachers in the grade of Rs. l'J0-200 and placed in Category I. It appears that the ex-Mysore teachers in the grade of Rs. 60-150 also made representations to the Central Government since the effect of placing the ex-Hyderabad teachers in the grade of Rs. 154--:Z75 en-bloc immediately above the first teacher from the ex-Hyderabad in the grade of Rs. 130'--190 was to push them back in seniority below the ex-Hyderabad teachers in the grade of Rs. 154-275. The Central Government after considering all these representations received from different classes of allocated teachers as also the representations submitted by the ex-Hyderabad and the ex-Coorg teachers pursuant to the directions contained in th~ orders of the High Court dated 8th January, 1969 and 24th February, 1969 determined the equation of posts and in accordance with this determination the State Governm'!nt by a notification dated 9th December, 1971 published the Final Inter State Seniority List. This Final Inter State Seniority Lisralso, like the earlier one, classified the posts into Promotional cadre, Intermediate\n\ncadre and Initial Recruitment cadre. The posts of ex-Hyderabad teachers in the grade of Rs. 154-275 as well as the posts of ex-Coorg teachers in the grade of Rs. 100--300 were equated with the posts of cx-Bomb.iy teachers in the grade of Rs. 70-200, the posts of the ex- Madras teachers in the grade of Rs. 85-175 and the posts of ex- Mysore teachers in the grad~ of Rs. 60-150 and placed in the Initial Recruitment cadre, while~ tl)e post of Principal, Janatha College in the grade of Rs. 200-300, the posts of ex-Bombay teachers in the grade of Rs. 210-300, the posts of ex-Madras teachers in the grade of Rs. 165-245 and the posts of ex-Mysore teachers in the grade of Rs. 130-200 were equated and placed in the promotional cadre. The\n\nr1sult was that though prior to the reorganisation the ex-Hyderabad teachers in the grade of Rs. 154--275 and the ex-Coorg teacher~ in the grade of Rs. 100-300 were eligible for being considered for pro~ motion to the post of m:ad Master which was a Class II Gazetted post they could now hope to reach the post of Ifead Master only after being first promotedto the Promotional cadre, which would mean that they would have to await their turn until after all the teachers in the Promotional c.adre were either promoted or rejected and moreover th.-:ir seniOrity was seriously prejudiced and their future emoluments considerably affected.\n\nThe ex-Hyderabad petitioners being aggrieved by the equation of posts made in the Final Inter State Seniority List perferred Writ P1ti tion No. 1Tof 1972 in this Court challenging the validity of the equation i\" so far as the posts held by ex-Hyderabad teachers in the grade of Rs. 154-275 were equated with those of ex-Mysore teachers in the grade of Rs. 60-150 and classified under the Category of Initial Recruitment cadre. The contention of the ex-Hyderabad petitioners was that the posts held by the ex-Hyderabad teachers in the grade of Rs. 154-275 should have been equated wicll those of eK-Mysore teachers in the grade of Rs. 130-200 and placed in the Promotional cadre. Similarly, the ex-Coorg teachers also filed Writ Pctitic111 No. 149 of 1972 in this Court challenging the validity of the <:qt.ation made in the Final Inter State Seniority List in so far as the posts held by the ex-Coorg teachers in the grade of Rs. 100-300\n\nwtre equated with those of ex-Mysore teachers in the grade of Rs. 60-· 150 and placed in the Initial Recruitment cadre. They also contended that the posts of ex-Coorg teachers in the grade of Rs. l00-300 should have been equated with those of ex-Mysore teachers in the the grade of Rs. 130-200 and treated as belonging to the Promotional cadre. The question we are called upon to consider in these two writ petitions is whether the claim made by the ex-Hyderabad petitioners and the ex-Coorg petitioners cn be sustained.\n\nBefore we proceed to examine the merits of the claim of the ex~ Hyderabad and the ex-Cpor.E? petitioners, it would be convenient first to consirler the gl'ound on which an equation of posts made by the Central Government may be challenged. It is now well settled that the\n\npowr to determine equation of nosts belonj!s to the Central Govern-. ment under section 115(.5) of the Actaoo thispowermust.be.exei: cised by the Central Government after giving an opportunity to the\n\nSHAHBUDD!N I'. UNION (Bhagwati, 1.) 317\n\nallocated Government servants to make representations in regard to\n\nthis matter. This Court pointed out in Union of India v. P. K. Roy(l) that a decision taken by the Central Government without giving an opportunity to the officer:s affected to make representations would be invalid and that was affirmed by this Court in the subsequent aecision in Union of India v. G. R. Prabhavalkar(\"). This Court also laid down in t 1• I?a1ialt Raj v. Union of India(l) and Union of India v. G. R. Pra l>lwv•1//;, ire) that the Central Government is bound to have regard to the four factors decided upon at the conference of the Chief Secretaries held on 18th and 19th May, 1956 in deterrilining equation of posts and if these four factors have been properly taken into account, the decision of the Central Government cannot be assailed. It is not open to th~ Court to consider whether the equation of posts made by the Central Government is right or wrong. That is a matter exclusively within the province of the Central Government. What the Court can scrutinise is only whether the four factors agreed upon at the Chief Secretaries' conference have been properly taken into account. If the Court finds that one or mor~ of these four factors have been ignored ..\n\nthe Court can strike down the equation of posts made by the Central Government. The Curt can also interfere if it finds that the decision of the Central Government in regard to the equation of post.~ is maJa fitle or .without application of mind. The Court may also in a proper case intervene if it comes to the conclusion that the decision of the Central Government is based on irrelevant considerations or wrong assumptions or that it is so irrational or perverse that no reasonable person properly instru, etcd and taking into account relevant facors could possibly arrive at it. This is the narrow and limited field within which th::: supervisory jurisdiction of the Court can operate.\n\nH'rit Pt!tition No. 12 of 1972\n\nThe first ground on which the ex-Hyderabad petitioners sought to challenge the equation of posts, in so far as the posts held by them in the grade of Rs. 154-275 were equated with the posts of ex-Mysore\n\ntcaeh:rs in the grade of Rs. 60--150 and placed in the Initial Recruitment Cadre, was that the equation of posts was made by the Central Govanment without giving any opportunity to the ex-Hyderabad petitioners to make a proper representation. The argument of the ex- Hydernhad petitioners was that the Provisional Inter State Seniority\n\nLbt published on 20th November, 1970 gave them a special position on equation of posts and placed them en-bloc immediately above the first teacher from Hyderabad in the grade of Rs. 130-190 in the initial Recruitment Cadre d since they were satisfied with this equation they did not make any representation to the Central Government, bt the Central Government altered this equation to their prejudice in the Final Inter State Seniority List without giving any opportunitv to thelll\n\nto make a representation sh6wing why they should not be equated with ex-Mysore teachers in the grade of Rs. 60--:150 in the Initial Recruit~\n\nmcnt Cadre but should be equated with ex-Mysore teachers in the grade\n\n~~.ti .. 1 ~0-200 in the Promotional Cadre.\n\nThe. equation of posts in\n\n(1). [1968]2. S. C.R. 186.\n\n(2) [1973} 4 S. C. C. 183.\n\n(3) [1973] 1 s. c. c. 61. 6-423SCij75\n\n•J;.: JiiJd lntLr State Seniority List, in so far as it. related to the n-Hyd, rnbad teachers in the grade of Rs. 154-275, was, therelorc, c(.llHcndccl the ex-Hyderabad petitioners, in violation of the principks oi natural justice and was on that account liable to be\n\nu\":, i::cd and i:ct aside.\n\nNow, it is true that the .ex-Hyderabad petitioners were prepared 1to accept the equation of posts made in the Provisional Inter State Senio1ity List though it did not go as far aS; to sa'.isfy the full extent of their claim and they accordingly did not ritake\n\nany representation complaining against such equation of posts and claiming that the posts held by them in the grade of Rs. 154---275 should be equated with those of ex-Mysore teachers in the grade of Rs. 130-200 and placed i'n the Promotional cadre. The only representat:on mad(: by the ex-Hyderabad petitioners to the Central Government was the one produced by the learned counsel appearing on b~ half of the State Government pursuant to the directions given by us and that representation showed that though the ex-Hyderabad petitioners felt that the equation of posts made in the Provisional Inter State Seniority List was not correct and it placed them in a slightly disadvantageous position. they were, \"in the interest of common good and amicable settlement\", prepared to accept it and they according! y requested the Central Govrnment to treat the Provisionai Inter Stale Seniority List as final and irrevocable and to publish it as the Final Inter State Seniority List. The Central Government, however, changed the equation of posts proposed in the Provisional Inter State Seniority List to the detriment of the ex-Hyderabad petitioners by pulling them down and equating them with ex-Mysore teachers in the grade: of Rs. 60-150 in the Initial Recruitment cadre. Obviously, this could not be done without jvfag an opportunity to the ex-Hyderabad petitioners to make a proper representation. That was the barest minir11um requirement of th~ principles of natural justice. This requirement was dearly satisfied. Though the ex-Hyderabad petitioners did not make\n\nany representation to the Central Government in regard to thdr c:laim to equation of posts subsequent to the publication of the Provisional\n\nf nter State Seniority List, there were representations made by t:ltont earlier in pursuance of the directions giv1n by the High Court in its judgment dated 8th January, 1969. The ex-Hyderabad petiticmocs admitted in paragraph 3 ( 11) of the petition that they had made rc:pre- .sentations to the Central Government subsequent to the judgmeflt of the High Court dated 8th Jal).uary, 1969 and the equation of posts was tentatively decided by the Central Oovernmnt \"after hearing the representations from all'~. which would include their representations as well. So also in paragraph 5 of the petition the ex-Hyderabad teachers referred to the. representations made by them to the Central Government subsequent to the judgment of the High Court dated 8th January, 1969 and sta•ed that in these representations, they had placed all relevwt facts and materials before the Central Government with .a view w substantiating their claim to equation of the\n\nSHAHBUDD!N v. UNION (Bhagwati, J.) 319\n\nposts held by them with those of ex-Mysore teachers in the grade of Rs. 130 299 in the Promotional cadre. The Central Government also affirmed in paragraph 3 of the affidavit in reply filed by A. R. Ailawadi, Under Secretary to the Government of India, Cabinet Secretariat that representations had bcn made by the ex-Hyderabad teachers pursuant to the directions given by the High' Court in its judgment dated 8th January,\n\n1969. It was after considering all these representations received pursuant to the.directions contained in the judgment of the High Court dated 8th January, 1969 \"the recommendations of the SAC on those representations as also the representations received against the revised provisional ISS list of the graduate tutorial cadre published in November 1970 and the recommendations of the SAC on those representations, by the application of the relevant factors and in particular, the four criteria for determination of equation of posts\" that the Central Government decided the equation of posts forming the basis of the Final Inter State Seniority List.\n\nThis is clear from the preamble to the notification dated 9th December, 1971 publishing the Final Inter State Seniority List as also from paragraph 3 of the affidavit in reply filed by A. R. Ailawadi on behalf of the Central Government. The Central Govcrnmnt, therefore, had before it the representations of the ex-Hyderabad teachers claiming equation of the posts held by them in the grade of Rs. 154-275 with those of ex- Mysorc teachers in the grade of Rs. 130-200 in the Promotional c!ldre and it was after considering these representation that the Central\n\nUovrnmcnt decided that the posts held by the ex-Hyderabad teachers in 'the grade of Rs. 154-275 should be equated not with the posts of ex-Mysore te1chers in the grade of Rs. 130-200 in the Promotional cadre as claimrd by them, but with the posts of ex-Mysore teachers in the grade of Rs. 60-150 in the nitial Rcruitment cadre. It is in these circumstances not possible to say that the decision in regard to equation of posts in the Final Inter Seniority List was taken by the Central Government without giving an opportunity to the ex-Hyderabad petitioners to make a proper repre-sen'ation or that there was any violation of the principles of natural justice in reaching such decision.\n\nThat takes us to the next ground of challenge against the validity cl the equation of posts in so far as the ex-Hyderabad teachers in the grade of Rs. 154-275 are concerned. The ex-Hyderabad petitioners contended that in determining the equation of posts the Central Government had failed to take into account the four factors decided upon at the Chief Secretaries Conference and that in any event the equation of posts made by the Central Government was based on erroneous assumptions and irrelevant considerations and disclosed non-application of mind to the material and relevant facts. Now the notification-dated 9th December,\n\n197 I, setting out the equation of posts, does not give the reasons which\n\n~UPREME COURT REPORTS [ 1975] 3 s .. c.R.\n\nweighed with the Central Government in making the equation of posts and in the absence of reasons. It might have been difficult for the ex- HyJerabad petitioners to substantiate this ground of challenge, but fo:- tunately the Central Government has, in the affidavit in reply filed on its behalf by A R. Ailawadi, disclosed the reasons why it made the equation of posts in the manner it did.\n\nWe must, therefore, proceed to examine th1e reasons and see how far they introduce any infirmity in the equation of posts.\n\nThe decision of the Central Government giving its reasons fo:r the equation of posts may be set out in the words of the Central Government itself as re-produced in paragraph 15 of the affidavit in reply made by A.R. Ailawadi :\n\n\"The main points raised in the representations reeeiv'd against the revised[ provisional list of 1970 are that the posts of Teachers in the grades of Rs. 130-190 and Rs. 80-220 from Hyderabad and Coorg respectively should be put in a separate lower category and that the posts_ of Teachers from Hyderabad in the scale of Rs. 154-275 should be equated with the posts-of teachers from other integrating areas without any special treatment. The Coorg Teachers in the scale of pay Rs. 18().300 have claimed higher equation whereas the Hyderabad Teachers have, by and large, supported the tentative equation of posts suggested by the Central Government.\n\nOn the: basis of all the material available with the Central Government it is observed that in the case of none of these seven posts are all the four criteria admittedly higher or lower than the others. If, therefore, 3 of the 4 criteria are by and large, similar, the posts would have to be equated. Broadly speaking, the teachers in all these grades were either teaching High School and Middle School classes, or doing inspection work. It is seen that the duties, etc. of the Hyderabad Inspectorate in the grade of Rs. 154-275 were some what inferior to those of their counter-parts i.n Mysore, Bombay, Madras and Coorg. In respect of minimum qualifications prescribed for recruitment to the pots, the Hyderaabad and Coorg teachers in the grades of Rs. 130•190 and Rs. 80-220 respect.ivel y, were less qualified than the other teachers. Regarding scales of ray, the Hyderabad and Coorg\n\nteachers in the grade of Rs. 154-275 and Rs. 100-300 respectively were in a better scale than the other teachers, but\n\nSHAHBUDD!N v. UNION (Blzagwati, J.) J2 l\n\nthe scales of pay of the Hyderabad and Coorg teachers in the grade of Rs. 130-190 and 80-200 were better than those of the Mysore, Bombay 'and Madras teachers in the grade of Rs. 60-150, 70-200 and Rs. 85-175 respectively. It is thus seen that, by and large, in three out of the four criteria for determining the equation of posts, the several posts included in the Initial Recruitment Cadre are quite comparable.\n\nAfter careful consideration of all the relevant factors ' and in particular, the fojlI criteria for determination of the equation of posts, the Central Government have decided that the equation of posts adopted for drawing up the ISS\n\nList published in 196~ referred to in paragraph 2 supra is the most reasonable one for drawing up the final ISS List of the Graduate Tutorial Cadre as on 1st Novemer, 1956. The State Government may, therefore, adopt that equation for the preparation of the final ISS List of the Graduate Tutorial Cadre as on -.1-11-1956.\"\n\n It would be seen that the Central Government took the view that if the posts were found similar on an application of three out of the four factors settled at the Chief Secretaries' Conference, they should be equated. The Central Government then proceeded to apply these factors for the purpose of determining the equation of posts.\n\nSo far as the first factor, namely, the nature and duties of posts and the second factor, namely, the responsibilities and powers appertaining to the posts, are concerqed, the Central Government pointed out that \"the teachers in all these grades were either teaching High School and Middle School classes, or doing inspection work\" and then observed that \"the duties, etc. of the Hyderabad Inspectors in the grade of Rs. 154-275 were some what inferior to those of their counter-parts in Mysore, Bombay, Madras and Coorg\".\n\nNow, the ex-Hyderabad Inspectors in the grade of Rs. 154-275 constituted but a fraction of the ex-Hyderabad teachers in that grade and the majority of the ex- Hyderabad teachers in that grade were teachers teaching in the composite schools corresponding to the Middle and High Schools of the erstwhile State of Mysore.\n\nNo comparison of the nature and duties or responsibilities of the posts was, nowever, made between the ex-\n\nHyderabad teachers in the grade of Rs. 154-275 on the one hand and the ex-Bombay teachers in the grade of Rs. 210-300, ex-Madras teachers iil the grade of Rs. 165-245 and ex-Mysore teachers in the grade of Rs. 130-200 on the other. The criteria of the first and the second factors were not applied qua ex-Hyderabad teachers teaching\n\nin the composite schools who constituted a large bulk of ex-Hyderabad teachers in the grade of Rs. 154- 275 and it was not said by the Central Government that either the nature or the duties or responsibilities of their posts were inferior to those of the posts of ex-Bombay teachers in the grade of Rs. 210-JCoO, ex-Madras teachers in the grade of Rs. 164-245 and ex-Mysore teachers in the grade of Rs. 130-200.\n\nThe Central Government did not take up this position even in the affidavit in reply made by A.R. Ailawadi on its behalf. The only assertion which the Central Government made in this affidavit was that \"the nature of duties and responsibilities etc. attached to the posts of teachers in Hyderabad in the scale of Rs. 154-275 were similar to those of teachers of Mysore in the scale of Rs. 60-150, of Bombay in the scale of Rs. 70-200 and of Coorg in the scale of Rs. 1 CU-300\".\n\nVide paragraph 21.\n\nWe do not think this ex-post facto statement made in the affidavit c.an be relied upon the justification of the equation of posts because what we have to consider is what were the factors aetuall) taken into z.ccount in determining the equation of posts and whether any of them were relevant or irrelevant and whether any relevant factors wer.:: omitted from consideration. There is nothing in the decision of the Central Government to show that this factor relating to comparison of the nature, duties and responsibilities of the posts between ex-Hyderabad teachers in the gr-ade of Rs_. 154-275 -apart from ex~Hyderabad Inspectors and other allocated t:':achers was at any time taken into account by the Central Government.. Even if we accept the statement made in the affidavit at its face value, it cannot carry the matter any further, because it merely speaks of similarity of the dutie:s and responsibilities of the posts of ex-Hyderabad teachers in the grade of Rs. 154-275 with those of the posts of ex- Bombay, ex .. Madi:as and ex-Mysore teachers in tte lower grade and does ll.)t seek to compare the nature, duties and responsibilities of the\n\nposts of ex-Hyderabad teachers in the grade of Rs. 154-275 with those of the posts of ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grade. It may be argued that the duties and responsibilities of rh~ posts of ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grade were superior to those of ex-Bombay, ex-Madras and ex-mysore teachers in the lower grade, and therefore, when the Central Government found that the duties and responsibilities of the posts of ex-Hyderabad teachers in the grade of Rs. 154-275 were similar to those of ex-Bombay, ex-Madras and ex-Mysore teaclhers in the lower grade. it must follow a fortiorori that they were inferior to those of ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grade and hence the former posts could not be equated with the latter.\n\nBut this argument cannot be sustained because the premise on which\n\nSHAHBUDD!N v. UNION (Bhagwati, J.) 323\n\nit is based is non-existent. It does not appear from the decision of the Central Government, nor is there anything in the affidavit or A.R.\n\nAilawadi to sl:low that the duties and responsibilitis of the posts of cx-0uam1y, ex-MaJras and ex-Mysore teachers in the higher grade were superior to those of the posts of ex-Bombay, ex-Madras and ex- Mysore teachers in the lower grade. In fact, the Central Government 'tatcd in paragraph 16 of the affidavit of A. R. Ailawadi in reference to the posts in the higher grade : \"In the States of Mysore, Madras and Bombay certain percentage of posts of graduate tutorial cadre were treated as selection grade posts, the p:ircentage in Mysorn being 20%, in Bombay 3% and in Madras 33-1/3%, and these pcJSls were not attached. to any particular Institution or office. \"Persons in the initial recruitment category were given this selection grade on the basis of seniority-cum-merit\". If this is true, it wot1ld mean that the posts of ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grade were in the nature of selection grade posts and the teachers in the lower grade were, on the principJe of seniority-cum-merit, given the higher grade, but they remained in the same posts discharging the same duties and responsibilities. It would seem that the posts in the higher grade were thus not promotional posts, distinct and separate from the posts in the lower grade. The posts were the same and the duties and responsibilities were the same, but the teachers who were in the lower grade given the higher grade on the principle of senioritycum-merit. This would be evident from the order of the Government of Mysore dated 21st Septe'mber, 1947 set out in paragraph 8 of the affidavit in reply filed by respondent No. 8, Appendix 9 to the Bombay Educational Manual referred to in paragraph 9 of that affidavit and the position in rgard to the Education Service in the erstwhile State of Madras as set out in paragraph 10 of that affidavit.\n\nIt is obvious that the Central Government, in determining the equation of posts, omitted to take into account these relevant considerations and failed to apply the criteria of the first and second factors in the light of the material facts placed before it.\n\nThe Central Government in its decision then proceeded to consider the criterion relating to the third factor, namely, the minimum qualifications prescribed for recruitment to the posts and observed that \"the Hyderabad and Coorg teachers in the grades of Rs. 130-190 and Rs. 80-220 respectively were less qualified than the other teachers\". It is difficult to see the logic or relevance of this observation.\n\nWhat the Central Government was concerned to inquire was as to what were the posts of ex-Bombay, ex-Madras and ex-Mysore teachers to which the posts of ex-Hyderabad teachers in the grade of Rs. t=-4- 275 could be regarded as similar from the point of view minimum\n\nqualifications prescribed for recruitment to the posts. It may be that the ex-Hyderabad teachers in the grade of Rs. 130-190 were less qualified than the ex-Bombay, ex-Madras and ex-Mysore teachers in the lower grade, but that could have no bearing on the question as to whetha ex-Hyderabad teachers in the grade of Rs. 154-275 were\n\nsuperior or inferior to the ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grade from the point of view of qualifications.\n\nThe Central Government ought to have considered whether there was any comparison between the posts of ex-Hydarabad teachers :in the grade of Rs. 154-275 and the posts of ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grade on the criterion of minimum qualifications required for recruitment to the posts.\n\nThis, unfortunately, as the deCision of the Central Government shows, it fail.ed to do. There is nothing in the decision of the Central Government which would indicate even remotely that the Central Government applied its mind to the criterion of minimum qualifications and compared the posts of ex-Hyderabad teachers in the grade of Rs. 154-275 with those of other allocated teachers in the higher grade from the point of view of this criterion. ·\n\nSo far as the criterion relating to the fourth factor, namely, the salary of the posts is concerned, the Central Government was constrained to admit that the posts of ex-Hyderabad teachers in the grade {)f Rs. I 54-275 carried a higher P\"Y scale than those of ex-Bombay. ex-Madras and ex-Mysore teachers in the lower grade and even the posts of ex-Hyderabad teachers in the grade of Rs. 130--190 enjoyed\n\na b-:ttcr pay scale than those of ex-Bombay, ex-Madras and ex-Mysore teachers in the lower grade. Judged by this criterion, therefore, the posts of ex-Hyderabad teachers in the grade of Rs. 154--275 could not possibly have been equated with those of ex-Bombay, ex-Madras and ex~Mysore teachers in the lower grade but the Central Government ignored this criterion altogether and pinned its decision only oa the other three criteria which also, as pointed out by us above, were either not applied at all or improperly applied.\n\nThere can, therefore, be no doubt that if we test the validity of the equation of posts by reference only to the reasons given by the Central Government in its decision as reproduced in paragraph 15 of the affilfavit of A.R. Ailawadi, the equation of posts made by the Central Government cannot stand in so far as ex-Hyderabad teachers in the grade of Rs. 154--275 are concerned. But the Central Government H in the aw:davit. of A.R. Ailawadi gave certain further reasons _justifying the equation of posts made by it and though the decision of the Central\n\nSHAHBUDDJN v. UNION (Bha~1\"ati, ], ) ns\n\nA Government does not show that these reasons actually weighed with the Central Government, we would proceed to examine their ccn .. ::i:-\n\nness.\n\nThe contention of the Central Governm.cnt, as ct out in the affidavit of A.R. Ailawadi, was that the posts of ex-Hyderabad teachers in the grade of Rs. 154-275 did not belong to th1~ promotional c:tdre but were meant only for the initial recruitment of trained graduates and hence they were rightly classified under the J nitial Recruitment cadre. The strongest reliance in support of this contention was placed on the Cadre and Recruitment Rules of the Hyderabad Educatilmal Service made by the Rajpramukh on 29th October, 1953. It wus pointed out by the Central Government that according to the ~ydra bad Cadre and Recruitment Rules, the highest grade in the subordinate services was that of teachers in the grade of Rs. 280--:345 a.; fri that was to be filled by promotion of teachers in the grade of Rs. 154-;,. 275 and the next lower grades were those of teachers in the _grades of Rs. 154-275 and Rs. 130-190 and these were \"to be fiJid :dinarily by direct recruitment by selection by a select committee\" :tJJd so far as the minimum qualifications for recruitment to these gradt'.s were concerned, a candidate had to be a trained graduate for recruit n1ent to the grade of Rs. 154-275 while for recruitment to the grad~ of Rs. 130-190 it was enough if he was merely a graduate Qr a trained intermediate. The Central Government submitted on the basis of these pro.visions in the Hyderabad Cadre and Recruitment Rules that the grade of Rs. 154-275 was not a promotional grade but it was as much an initial recruitment grade as the grade Of Rs .. 130-\n\n190, the only difference being that the minimum qualification for recruitment in the former was that the candidate should be a trained graduate while in the later, he could be an untrainied grdauate or a trained intermediate. The only promotional grade, according to the Hyderabad Cadre and Recruitment Rules was that of teachers in the grade of Rs. 280-345. That was the reason why, contended the Central Government, the posts of ex-Hyderabad teachers in the grade of Rs. 280-345 were equated with the posts of ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grade-which were in the Promotional cadre, while the posts of ex-Hyderabad teachers in the grades of Rs. 154-275' and Rs. 130-190 were equated with the posts or ex-Bombay, ex-Madras and ex-Mysore teachers in the lower grade which constituted Iriftial Recruitment cadre.\n\nThis contention, plausible though it may seem, is, in our opinion, fallacious, inasmuch as it is based on misconception of the true nature of the equation of posts ; md disregard of the actual and historical facts obtaining in regard to\n\nthe ex-Hyderabad grade of Rs. 154-,275 and the ex-Mysore grades of Rs. 60-150 and Rs.. 130-200.\n\nIt is clear that what the Central Government was required to do for the purpose of bringing about the integration of the services was to determine the equation of posts of a1located Government se•rvants coming from different integrating areas. The equation that was to be made by the .Central Government was of posts and since posts would be in different grades, the equation of posts would necessarily involve the equation of grades. This equation had to be done by reference to the four criteria laid down at the conference of the Chief Secretaries.\n\nIt was immaterial whether the grades which wer.e sought to be equated were initial recruitment grades or promotional grades. There was no requirement either o[ law or of principle that one initial recruitment grade could be equated only with another initial recruitment grade, or that one promotional grade could be equated only with another promotional grade. The four criteria which were to be applied for the purpose of determining the equation were those laid down at the Conference of the Chief Secretaries and if these four criteria were satisfied, then in a given case an initial recruitment grade could be equated to a promotional grade and vice-versa. We do not, therefore, think that the Central Government was right in taking the view that the ex Hyderabad grade of Rs. 154-275 could not be equated with the ex- Bombay grade of Rs. 210-300, ex-Madras grade of Rs. 165--245 and ex-Mysore grade of Rs. 130-200 because the former was an initial recruitment grade while the latter were promotional grades. That was not a correct test to be applied in determining the equation of posts.\n\nBut apart from this objection as a matter of law, we do not think the Central Government was right in saying that the ex-Hyderabad grade of Rs. 154--275 was not a promotional grade but nn initial recruitment grade for trained graduates. We will first consider the position prior to the making of the Hyderabad Cadre and Recruitment Rules of 29\\h May, 1953.\n\nThere are several orders commencing from 17th October, 1951 and ending with 12th December, 1954, Annexures Fl to F4 to the petition, which clearly show that ex Hyderabad teachers in the grade of Rs. 130--190 were promoted to the grade of Rs. 154--275. All the forty-three. ex-Hyderabad petitioners were originally appointed in the grade of Rs. 130-19{} and subsequently on obtaining B.T. or B.Ed. degrees, they were promoted to the grade of Rs. 154-275 in accordance with the principle of seniority-cum-merit and this is borne out bv the orders of promotion passed in the case of each of them. In fact; as pointed out by the ex- Hvderabad petitioneni in paragraph 4(2) of the petition. all the1 ex- Hyderabad teachers in the grade of Rs. 154-275, except two, were \" promotecs from the grade of Rs. 130-190. The proceedings rdatmg\n\nSHAHBUDDIN v. UNION (Bhagwati, J.) 327\n\nto the order of the Government of Mysore dated 11th March,\n\nI 96G Anilexure G-1 to the petition, a:lso showd that, in the ex-Hyderabad area, trained graduates in the grade of Rs. 130-190 were promoted to the grade of Rs. 154--275. So also the letter dated 22nd December, 1962 addressed by the Director of Public Instruction, Andhra Pradesh to the Secretary to the Hyderabad Karoataka Teachers U mon\n\nAnnexue G2 to the petition pointed out that generally, in the ex- Hyderabad are::i., trained graduates were not appointed direc ly in the grade of Rs. 154--275 and \"only untrained graduates were appointd in the sca; e o'f Rs. 130-190 and thereafter they were selected for B.Ed. training as per seniority and after they had compeleted B.Ed. training, they were promoted to the trained graduates scale of Rs. 154 -2\"/5 as per seniority\". Similarly, the letter dated 21st January, 1966 of the Depµty Secretary to Government oi Andhra Pradesh to tbe Accountant General, Andhra Pradesh, Annex, ure G3 to the petition, also asser.ted that the ex-Hyderabad teachers who were in the grade of Rs. 130-190 prior to the reorganisation were \"eligible for promotion to the next higher scale of Rs. 154--2 7 5 in case of their first promotion after 1st November, 1956\". Then there is also an order of the Government of Mysore dated 28th August, 1961, Annexure G4 to the petition, which said that Shri Vasant Rao Patil was promoted from the grade of Rs. 130-190 to Rs. 154-275 along with eleven other teachers. And, lastly, the letter dated 30th December, 1954 addressed by tht: Director of Public Instruction, Andhra Pradesh to the Seeretary, Hyderabad Karnataka Teachers Union, Annexure GS to the petition. affirmed in terms clear and explicit that the duties of the posts of teachers were the same in the grade_ of Rs. 154-275 as in the grade E of Rs. 130-190 and the grade of Rs. 154--275 merely constituted u\n\n\"higher category to which trained graduates in the grade of Rs. 130- 190\" we:e eligible for promotion. It wou'd, therefore. be seen that right upto the time of the making of the Hyderabad Cadre a., d Rpcruit ment Rules and even thereafter, the ex-Hvderabad grade of Rs. 154- 275 was a promotional grade and save in two exceptional cases, no\n\ndirect recruitment was ever made t.o this grade. The entry in the grade of Rs. 154-275 was alwavs by way of promotion of trained graduates from the grade of Rs. 130-190. Jt is true that the Hydrabad Cadre and Recruitment Rules provided that the nosts 0f techers _in the !!rark of Rs. 154-275 sh'lll be filled ordinarilv by direct recruitment but in fact no eirect recruitment was ever made to this wade.\n\nThe word 'ordinarily' left it ooen to the Government to aooo.int a teacher to the 1rrade of Rs. t 54-275 otherwise than by direct recruitment and in fact, as the various documents to which wl' hw• iust referred show, aooointments to the grade of Rs. 154-275 were made by promotion of trained graduates from thP. rrrade of Rs J '.ln-190 even after the making of the Hvderabad Cadre and Recruitm,.nt R111es.\n\nThe oosition which prevailed at the time of •he reornanisation therefore. was th1t the ex-Hvrler>1bad gradPof Rs. 1 \"4-275 w'ls in fact and in rea1itv a promotional 1rrade consistin!! who11v of prornn•<>•s ffflm the grade of Rs. t'.10-1 <JO save in two excentional cas•s. W,, fa; l to sec how th~ Central Gov•rnmnt co11lrl hw,. ip-n0rpt1 th\" st,,.Jr r•ality l'r thi~ situation and proceeder! on a purelv theoretical basis wholly unt elated to the facts and concluded that the ex-Hyderabad grade of\n\n. Rs. 154-275 was an initial recruitment grade for trained graduates as distinct from a promotional grade.\n\nWe find from the equation of posts. made in the Final Inter State Seniority List as also from the affidavit of A.R. Ailawadi that, according to the Central Government, the ex-Hyderabad grade of Rs. 280-\n\n345 was a promotional grade for ex-Hyderabad teachers in the grade of Rs. 154-275 and \"the te?o::hers in the grade of Rs. 154-275 h<:d to pass norina.lly through the selection grade of Rs. 280-345 before cnteri1; g the Class 11 Gazetted cadre\" and the posts in the ex-Hyderabad grade of Rs. 280--345 were, therefore, rightly equated with those .of ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grad~.\n\nThis stand of the Central Government is clearly untenable. It is clear fp:im the letter dated 21st October 1954, addressed by the Secretary .to\n\nthe Government of Hyderabad Education Department to the Director Of Public Instruction, Annexure G-6 to the petition, that the ex_:Hydenbad grade of Rs. 280--345 was a selection grade : it was \"nc:it <1 separate grade by itself but only an extension of existing grade\" <Of Rs. 154-275 in which it was necessary to reach the maximum before . aspiring to the next ladder. The same position was reiterated by .the Government of Andhra Pradesh in its order dated 12th March, 1959.\n\nAnnexure G-7 to the petition where it was stated that lhe ex-Hyderabad grade of Rs. 280--345 was not a separate cadre by itself but only a continuance of the grade of Rs. 154-275 \"a little over the maximum of the time scale of the grade\". The Jetter dated 23rd January, 1950 addressed by the Director of Public Instruction, Hyderabad to he Principals and Head Masters, Anncxure G-S to the petition, al; o pointed out that for the purpose of promotion to Class II Gazi:tted cadre the date o( entry into the grade of Rs. 154-275 wculd b,~ en\n\nthe basis of seniority of teachers \"irrespc.ctive of the grades in which they have worked, though they might be working either in the grade of Rs. 154-275 or Rs. 280-345\". So also, the Jetter dated 8th February, 1964 addressed by the Director of Public Instruction, Bangal.ore,\n\nAnnexurc G-7 to the petition, n:iterated that the grade of Rs. 280-- 345 was only a side grade intended for officials who have reached the maximum in the grade of Rs. 154-275 and they would have no pre .. ference over their seniors working in the grade of Rs. 154-275 am~ seniority in the grade of Rs. 154-275 would be the only criterion for Class II Gazetted promotion and one need not be promoted to the side grade to get eligibility for Class II Gazetted promotion. It would be seen from these documents that the ex-Hyderabad f!rade of Rs. 280-- 345 was merely a selection grade and not a promotional grade and the next higher grade of nmmotion from the grade of Rs. 154-275 was Class II Gazetted grade and promotion to that higher grade was not from the selection irrade of Rs. 280--345 but from the grade of Rs. 154-275 on the basis of seniority. The Central Government was. therefore. clearly in error in taking the view that the ex-Hvdernbad grade of Rs. 230-345 was a oromotional grade in between the grnde\n\nof Rs. 154--275 and Class II Gazetted !!rade. If the next higher grade above the grade of Rs. 154-275 was Class II Gazetted grade. it would\n\nbe a serious matter for consideration whether the grade of Rs. 154-\n\nI::\n\nSHAHBUDDIN v. UNION (Bhagwati, J.)\n\n275 should not be equated with the ex-Bombay, ex-Madras and ex- Mysore-h1gher grades whlch. were immediately be10w Class 11 Gazetted grade in those respective States.\n\nLastly, it may be pointed out that there is one rather important afid rekwant consideration which the Central Government seems to have fa.iieu to take inro account and that relates to the qualifications reqwred for recruitment to the posts sought to be equaLeO. There was no dispute that for recruitment, whether by promotion or otherwise, to the ex-Hyderabad grade of Rs. 154-275 it was essential that a teacher shouJd be a trained graduate and in practice all teachers promoted to that grade and even the two exceptional direct recruits were trained graduates. .But so far as the ex-Mysore grade of Rs. 60--150 is concerned, even an untrained graduate could be appointed under Note.\n\nA o the order of the State Government dated 21st September, 1947 set out in paragraph 8 of the affidavit in reply of respondent No. 8 and in fact a large number of untrained graduates were appointe{I in this grade. The practice followed was to appoint untrained graduates since trained graduates were not available and then to depute them for training in B.T. oourse at Government costs. The result was that at any given point of time there was abr'ays a large number of untrained graduates in the ex-Mysore grade of Rs. 60-150. It is highly revealing to nqte that out of about 700 exMysore teachers in the grade of Rs. 6Q-.:..150 allocated to the State of Mysore, there were admittedly as many as 343 who were untrained graduates and 20 more were also untrained but they were undergoing training on deputation. It is difficult to see how, apart from the disparity in the pay scaics, the cx- Hyderabad grade of Rs. 154-275, where the minimum qualification of trained graduate was always insisted on and followed, could be equated with the ex-Mysore grade of Rs. 60--150 where the minimum qualification of trained graduate was not a sine qi{} non for recruitment and in fact more than half the number of teachers were untrained graduates. It may be noted that untrained graduates in the grade of Rs. 60-150 were not only entitled to their usual increments but they could also be promoted to the next higher grade elf Rs. 130-200.\n\nThere were admittedly at the time of reorganisation 26 out of t 67 ex- ·\n\nMysore teachers in the grade of Rs. 130-200, who were untrained graduates. Similarly, in the erstwhile Bombay State also, minimum qualifictaion of trained graduate was not necessary for recruitmeht to the grade of Rs. 70-200. If a candidate was a trained graduate, he was given an advance increment, but even without being trained, hi: could gain admittance in the grade. Vide Appendix 9 to the Bombay &location Manual and Rule 131 in Section VIII of the Bombay Civil Services Classification and Recruitment Rules set out in paragraph 9 of lhc affidavit in reply filed by respondent No. 8.\n\nHow then could. be ex-Hyderabad grade of Rs. 154-275 be equated with the ex-Born.bay gfade of Rs. 70--200, when the minimum qualification for recruitc ment in the former was that the candidate should be a trained graduate while in the latter; he could just be an ordina.tj graduate?\n\nWe arc, therefore, of the view that Jhc equation of posts made by the Central Government was illegal and invalid in so far as it related\n\nto the posts of ex-Hyderabad teachers in the g:adc of Rs. 154-275.\n\nWe accordingly set aside the equation of posts as also the Final lnter State Seniority List basd upon it to the extent that it relates to the posts of ex-Hyderabad teachers in the grade of Rs. 154-257 acnd direct the Central Government to make fr.:sh cquati•Jn of posts alter taking into account ail relcvanl facts l::aving materia.l bearing on !he {jucstion and in the ligh, of the observations contaii1cd in this ju:lgm:nt.\n\nWrit Petition No. !49 of 1972\n\nThe case of the ex-Coorg petitioners stands on the same footin& as tnat ot the ex-Hyderabad ptition.ers in some ma.erial respe<:ls.\n\nl!l the first place, it does not appear from the decision of the Central C Government that for the purpose of determining the proper equation\n\nof th~ posts of cx-Coorg teachers in the grade of Rs. 100-300, the Central Government apphed the criteria of the first and the second factors by making a comparison of the nature, duties and resporisibilities of the posts. In fact, the statement of the Central Governmi:mtin its decision that \"the duties etc. of the Hyderabad Inspectors in the grade of Rs. 154-275 were somewhat inferior to those of their D counter parts in Mysore, Bombay, Madras and Coorg\" proceeded on the hypo hesis that the duties and responsibilities of the posts of (~X- Coorg teachers in the grade of Rs. 100-300 were similar to those of the pvsts of ex-Bombay, ex-Madras and ex-Mysore teachers in the high.:r grade. Secondly, the criterion of the third factor, namely, the minimum qualifications required for recruitment to the posts was also not applied by the Ccnt:ral Government for the purpose of determin- E ing t:1c equation of the posts of ex-Coorg teachers in the grade of Rs. 100-300. All that was sta'ed by the Central Government in its decision was that the ex .. Coorg teachers in the grade of Rs. 80-220\n\nw1re less, qualifi1!<1 tan the other teachers. But that had no bearing\n\non the question of qualifications for the posts of ex-Coorg teachers in the grade of Rs. 100-300. lt was common ground between , the parties that the minimum qualification required for recruitment to F. the posts of ex-Coorg teachers in the grade of Rs. 100-300 was that the candidate should be a trained graduate. However, so far as the posts of ex-Mysore tieachers in the grade of Rs. 60-150 and ex- Bombay teachers in the grade of Rs. 70-200 were concerned, it was not a minimum qualification that the candidate should be a trained graduate but it was en, ough if he was an untrained graduate.\n\nVlde. the relevant discussion in Writ Petition No. 12 of 1972.\n\nIt G would thus seem that thiere was no equivalence between the posts of\n\nex~Coorg teachers in the grade of Rs. 100-300 and those of r; Xysore teachers in the grade of Rs. 60-150 and ex-Bombay teachers\n\nm the grade of Rs. 7~-200 from the poi:nt of view of the criterion .of minimum qaltions required for recruitments to the posts. This rmportant cons1d1rat10n, however, seemed to have been omitted to be taken into account by the Central-Government. So also the Centt'lll 11 Gc>vernment faikd to take into account the criterion of the fourth factor, namely, the salary attached to the posts, for the posts of\n\nSJIAllBUDDIN v. UNION (Bhagwati, J.) 331\n\nex-Coorg teachers in t:1e grade of R:;. 100-300 undeni.ably carried a h1gner pay scale than the posts of eJ.1-Mysore teachers Ill the grade of Ks. 6U-150, ex-Bombay teachers in tne grade of Rs. 70--200\n\nand ex-Madras teacriers m the grade of Rs. 85-175. In fact, the pay sca.e of the posts of ex, Coorg teachers in the grade of Rs. 100jOU was in some respects even better than that of ex-Mysore teachers in the grade of Rs. 130-200. lt appears from the affidavit in reply filed by S. Kannan, Deputy Secretary to the Government of India, Cabinet Secretariat on benalf of the Central Government, that the m.l.in consH.leration which prevailed with the Central Government in equating the posts of ex-Cuorg teachers in the grade of Rs. 100--300\n\nwith those ot ex-Bombay teachers in the grade of Rs. 70-200, ex- Madras teachers in the grade of Rs. 85-175 and ex-Mysore teachers in the grade of Rs. 60-150 was that these were all initial recrui, ment grades, and the posts of ex-Coorg teachers in the grade of Rs. 100-\n\n300 could not be equated with those of ex-Bombay teachers in . the grade of Rs. 210-300, ex-Madras teachers in the grade of Rs. 165- 245 and ex-Mysore teachers in the grade of Rs. 130-200 becam1e the former bdonged to the initial recruitment grade, while the Jattor, to promotional grades. But as pointed out by us above, this was not a valid consideration which should have guided the Central Governtmnt in determining the equation of posts. The Central Government ought to have taken into account the four criteria laid down at the conference of the Chief Secretaries and determined the equation of posts by reference to those criteria. It may also be pointed out that the next higher grade above the ex-C.Oorg grade of Rs. 100-300 was Class II Gazetted grade and not the grade of Rs. 200--300, which was a special grade for the Principal, J anatha C.Ollege started as an experimental measure for a period of one year. Promotion to Class II Gazetted grade was from the grade of Rs. 100--300 11.nd\n\nit was not necessary for a teacher in the grade of Rs. 100--300 to be appointed Principal, Janatha College in the ; grade of Rs. 200- 300 in order to aspire for promotion to Class II Gaetted grade. That is obvious from the order o~ the Government of Coorg, dated 27th June, 1956, Annexure 8 to the petition, promoting B. Suryanarain Rao and S. S. Krishna Rao from the grade of Rs. 100--300 to Qus\n\nII Gazetted post of Head Master.\n\nThe grade of Rs. 200- 300 attached to the post of Principal, Janatha College was, therefore. not a promotional grade but a special. grade which did not give its incumbent any preference over the teachers in the grade of Rs. 100---- . 300. The Central Government was clearly in error in proceeding on\n\nth~ basis that \"in between the posts of trained graduates, Assistants and Sub-Divisional Inspxtors on the one hand (in grade Rs. 100--\n\n300) and the posts of :Head Masters of Government High Schools and the Principal of Basic Training College. Kadige on the other) in the grade of Rs. 250--10--350), the intennediate promotional post was that of Superintendent, Janatha College, Kudige in grade Rs. 200- 10--300\" and on that basis equating only the oost of Principal, Janatha College in the grade of Rs. 200-300 with the posts of ex- Bombav, ex-Madras awl eysore teachers in the higher grade.\n\nTbese infirmities vitiated the equation of posts made by the Central Government.\n\n:132 SUJ>Rll.ME COURT REPORTS l 197 5] 3 s.c .. R.\n\nWe, therefore. set aside the equation of posts as also the Fi.nal Jnier State Seniority List based upon it in so far as they relate to the posts of cx-Coorg teachers in the grade of Rs. 100-300 and direct the Central (J{)vernment to make fresh equation of posts after taking into account all relevant facts having material bearing on the question and in the light of the observations contained in this judgment.\n\nThe first respondent will pay the costs of the petitioners in each of these tv:o writ petitions.\n\nP.H.P.\n\nPetitions allowed", "total_entities": 100, "entities": [{"text": "3QG\n\nMOHD. SHAHBUDDIN & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "MOHD. 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Sachthey, for respondent No."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 11426, "end_char": 11440, "source": "ner", "metadata": {"in_sentence": "N. Prasad and R. N. Sachthey, for respondent No.", "canonical_name": "R. N. Sachthey"}}, {"text": "K. S. Puttaswamy", "label": "OTHER_PERSON", "start_char": 11485, "end_char": 11501, "source": "ner", "metadata": {"in_sentence": "K. S. Puttaswamy Govt."}}, {"text": "M. Veerappa", "label": "LAWYER", "start_char": 11537, "end_char": 11548, "source": "ner", "metadata": {"in_sentence": "Ad1, ocate for Karnataka and M. Veerappa, for rspondents Nos.", "canonical_name": "M. Veerappa"}}, {"text": "S. S. Jaya", "label": "LAWYER", "start_char": 11597, "end_char": 11607, "source": "ner", "metadata": {"in_sentence": "S. S. Jaya/i and B. P. Singh, for respondents Nos."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 11614, "end_char": 11625, "source": "ner", "metadata": {"in_sentence": "S. S. Jaya/i and B. P. 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Veerappa"}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 11974, "end_char": 11982, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Couruwas delivered by\n\nBHAGWATI, J.--The short question tha~ arises for consideration in these petitions is as to the validity of the equation of posts of graduate teachers allotted to the new State of Mysore constituted under the States Reorganisation Act, 1956.", "canonical_name": "BHAGWATI"}}, {"text": "State of Mysore constituted under the States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 12144, "end_char": 12213, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "India", "label": "GPE", "start_char": 12277, "end_char": 12282, "source": "ner", "metadata": {"in_sentence": "This A<.:t re-drew the boundaries of the different States in India with effect from .1st November, 1956 and inter alia a new State of Mysore was formed comprising the territories of the existing States of Mysore and Coorg, four districts in the existing State of Bombay, three districts in the existing State of Hyderabad and one district in the existing State of Madras."}}, {"text": ".1st November, 1956", "label": "DATE", "start_char": 12300, "end_char": 12319, "source": "ner", "metadata": {"in_sentence": "This A<.:t re-drew the boundaries of the different States in India with effect from .1st November, 1956 and inter alia a new State of Mysore was formed comprising the territories of the existing States of Mysore and Coorg, four districts in the existing State of Bombay, three districts in the existing State of Hyderabad and one district in the existing State of Madras."}}, {"text": "Mysore", "label": "GPE", "start_char": 12350, "end_char": 12356, "source": "ner", "metadata": {"in_sentence": "This A<.:t re-drew the boundaries of the different States in India with effect from .1st November, 1956 and inter alia a new State of Mysore was formed comprising the territories of the existing States of Mysore and Coorg, four districts in the existing State of Bombay, three districts in the existing State of Hyderabad and one district in the existing State of Madras."}}, {"text": "Coorg", "label": "GPE", "start_char": 12432, "end_char": 12437, "source": "ner", "metadata": {"in_sentence": "This A<.:t re-drew the boundaries of the different States in India with effect from .1st November, 1956 and inter alia a new State of Mysore was formed comprising the territories of the existing States of Mysore and Coorg, four districts in the existing State of Bombay, three districts in the existing State of Hyderabad and one district in the existing State of Madras."}}, {"text": "7th March, 1955", "label": "DATE", "start_char": 14620, "end_char": 14635, "source": "ner", "metadata": {"in_sentence": "This was a college started on an experimental basis under the Five Year Plan and the post of Principal was created as a temporary post under a Government Order dated 7th March, 1955."}}, {"text": "18th and 19th May 1956", "label": "DATE", "start_char": 15572, "end_char": 15594, "source": "ner", "metadata": {"in_sentence": "A meeting of the Chief Secretaries of these States wJs accordingly held at Delhi on 18th and 19th May 1956 at the invitation of the Central Government."}}, {"text": "Government of India", "label": "ORG", "start_char": 15802, "end_char": 15821, "source": "ner", "metadata": {"in_sentence": "The Government of India, by their letter dated 3rd April, 1957, informed the State\n\nSHAHBUDD!N v. UNION (Bhagwati, !.)"}}, {"text": "3rd April, 1957", "label": "DATE", "start_char": 15845, "end_char": 15860, "source": "ner", "metadata": {"in_sentence": "The Government of India, by their letter dated 3rd April, 1957, informed the State\n\nSHAHBUDD!N v. UNION (Bhagwati, !.)"}}, {"text": "19th May, 1956", "label": "DATE", "start_char": 17671, "end_char": 17685, "source": "ner", "metadata": {"in_sentence": "19th May, 1956, long prior to the reorganisation, neither the Centrar Gowrnment nor the State Government took any steps for the purpose of determining the equation of posts of graduate teachers and their i111er se seniority."}}, {"text": "3rd February, 1958", "label": "DATE", "start_char": 17900, "end_char": 17918, "source": "ner", "metadata": {"in_sentence": "On 3rd February, 1958, the Director of Public lnstruction circulat::d a Provisional Inter State List of teachers in the graduate tutorial cadre and this list was prepared on the basis that the\n\nposts of ex-Hyderabad teachers in the grade of Rs."}}, {"text": "2th June, 1964", "label": "DATE", "start_char": 19611, "end_char": 19625, "source": "ner", "metadata": {"in_sentence": "This contention was upheld by a Division Bench of the High Court by a judgment dated J 2th June, 1964 and the State Government was directed to prepart: a provisional Inter State seniority list of teachers in the graduate tutorial cadre."}}, {"text": "1st November,\n\n1956", "label": "DATE", "start_char": 21546, "end_char": 21565, "source": "ner", "metadata": {"in_sentence": "154-275 on various dates before 1st November,\n\n1956."}}, {"text": "27th December, 1965", "label": "DATE", "start_char": 23698, "end_char": 23717, "source": "ner", "metadata": {"in_sentence": "The State Government thereafter by a notification dated 27th December, 1965 published the final Inter-State Seniority List of teachers in the graduate tutorial cadre in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in accord- Diice with the decision of the Government of India under the provision of section 115 (S) of the Act."}}, {"text": "Article 309", "label": "PROVISION", "start_char": 23862, "end_char": 23873, "source": "regex", "metadata": {"statute": null}}, {"text": "section 115", "label": "PROVISION", "start_char": 23983, "end_char": 23994, "source": "regex", "metadata": {"statute": null}}, {"text": "8th January, 1969", "label": "DATE", "start_char": 26538, "end_char": 26555, "source": "ner", "metadata": {"in_sentence": "The High Court on this view, by an order dated 8th January, 1969, set aside the equation of post~ on the basis of which the Final Inter State Seniority List was prepared ;:md .directed that \"that part of the Final Inter State Seniority List which referred to the ex-Hyderabad teachers should be made again by the Central Government after consideration of all the relevant facts and circumstances and the ex-Hyderabad petitioners and all others who were likely to be affected by the determination to be made by the central Government should submit their representations in regard to this matter within a month from the date of the order of the High Court."}}, {"text": "central Government", "label": "ORG", "start_char": 27005, "end_char": 27023, "source": "ner", "metadata": {"in_sentence": "The High Court on this view, by an order dated 8th January, 1969, set aside the equation of post~ on the basis of which the Final Inter State Seniority List was prepared ;:md .directed that \"that part of the Final Inter State Seniority List which referred to the ex-Hyderabad teachers should be made again by the Central Government after consideration of all the relevant facts and circumstances and the ex-Hyderabad petitioners and all others who were likely to be affected by the determination to be made by the central Government should submit their representations in regard to this matter within a month from the date of the order of the High Court."}}, {"text": "20th November, 1970", "label": "DATE", "start_char": 28943, "end_char": 28962, "source": "ner", "metadata": {"in_sentence": "to the equation of posts and on the basis of such tentative decision a Provisional Inter State Seniority List was published by the State Government by a notification dated 20th November, 1970."}}, {"text": "24th February, 1969", "label": "DATE", "start_char": 31746, "end_char": 31765, "source": "ner", "metadata": {"in_sentence": "The Central Government after considering all these representations received from different classes of allocated teachers as also the representations submitted by the ex-Hyderabad and the ex-Coorg teachers pursuant to the directions contained in th~ orders of the High Court dated 8th January, 1969 and 24th February, 1969 determined the equation of posts and in accordance with this determination the State Governm'!nt by a notification dated 9th December, 1971 published the Final Inter State Seniority List."}}, {"text": "section 115(.5)", "label": "PROVISION", "start_char": 35269, "end_char": 35284, "source": "regex", "metadata": {"statute": null}}, {"text": "18th and 19th May, 1956", "label": "DATE", "start_char": 36074, "end_char": 36097, "source": "ner", "metadata": {"in_sentence": "This Court also laid down in t 1• I?a1ialt Raj v. Union of India(l) and Union of India v. G. R. Pra l>lwv•1//;, ire) that the Central Government is bound to have regard to the four factors decided upon at the conference of the Chief Secretaries held on 18th and 19th May, 1956 in deterrilining equation of posts and if these four factors have been properly taken into account, the decision of the Central Government cannot be assailed."}}, {"text": "Central Govrnment", "label": "ORG", "start_char": 40192, "end_char": 40209, "source": "ner", "metadata": {"in_sentence": "y requested the Central Govrnment to treat the Provisionai Inter Stale Seniority List as final and irrevocable and to publish it as the Final Inter State Seniority List."}}, {"text": "A. R. Ailawadi", "label": "LAWYER", "start_char": 42258, "end_char": 42272, "source": "ner", "metadata": {"in_sentence": "The Central Government also affirmed in paragraph 3 of the affidavit in reply filed by A. R. Ailawadi, Under Secretary to the Government of India, Cabinet Secretariat that representations had bcn made by the ex-Hyderabad teachers pursuant to the directions given by the High' Court in its judgment dated 8th January,\n\n1969.", "canonical_name": "A. R. Ailawadi"}}, {"text": "SAC", "label": "ORG", "start_char": 42678, "end_char": 42681, "source": "ner", "metadata": {"in_sentence": "It was after considering all these representations received pursuant to the.directions contained in the judgment of the High Court dated 8th January, 1969 \"the recommendations of the SAC on those representations as also the representations received against the revised provisional ISS list of the graduate tutorial cadre published in November 1970 and the recommendations of the SAC on those representations, by the application of the relevant factors and in particular, the four criteria for determination of equation of posts\" that the Central Government decided the equation of posts forming the basis of the Final Inter State Seniority List."}}, {"text": "9th December, 1971", "label": "DATE", "start_char": 43200, "end_char": 43218, "source": "ner", "metadata": {"in_sentence": "This is clear from the preamble to the notification dated 9th December, 1971 publishing the Final Inter State Seniority List as also from paragraph 3 of the affidavit in reply filed by A. R. Ailawadi on behalf of the Central Government."}}, {"text": "Central\n\nUovrnmcnt", "label": "ORG", "start_char": 43695, "end_char": 43713, "source": "ner", "metadata": {"in_sentence": "130-200 in the Promotional c!ldre and it was after considering these representation that the Central\n\nUovrnmcnt decided that the posts held by the ex-Hyderabad teachers in 'the grade of Rs."}}, {"text": "A R. Ailawadi", "label": "LAWYER", "start_char": 45441, "end_char": 45454, "source": "ner", "metadata": {"in_sentence": "It might have been difficult for the ex- HyJerabad petitioners to substantiate this ground of challenge, but fo:- tunately the Central Government has, in the affidavit in reply filed on its behalf by A R. Ailawadi, disclosed the reasons why it made the equation of posts in the manner it did.", "canonical_name": "A. R. Ailawadi"}}, {"text": "A.R. Ailawadi", "label": "LAWYER", "start_char": 45870, "end_char": 45883, "source": "ner", "metadata": {"in_sentence": "The decision of the Central Government giving its reasons fo:r the equation of posts may be set out in the words of the Central Government itself as re-produced in paragraph 15 of the affidavit in reply made by A.R. Ailawadi :\n\n\"The main points raised in the representations reeeiv'd against the revised[ provisional list of 1970 are that the posts of Teachers in the grades of Rs.", "canonical_name": "A. R. Ailawadi"}}, {"text": "Hyderabad Inspectorate", "label": "ORG", "start_char": 47015, "end_char": 47037, "source": "ner", "metadata": {"in_sentence": "of the Hyderabad Inspectorate in the grade of Rs."}}, {"text": "Hyderaabad and Coorg", "label": "ORG", "start_char": 47241, "end_char": 47261, "source": "ner", "metadata": {"in_sentence": "In respect of minimum qualifications prescribed for recruitment to the pots, the Hyderaabad and Coorg teachers in the grades of Rs."}}, {"text": "Mysorn", "label": "GPE", "start_char": 53842, "end_char": 53848, "source": "ner", "metadata": {"in_sentence": "In fact, the Central Government 'tatcd in paragraph 16 of the affidavit of A. R. Ailawadi in reference to the posts in the higher grade : \"In the States of Mysore, Madras and Bombay certain percentage of posts of graduate tutorial cadre were treated as selection grade posts, the p:ircentage in Mysorn being 20%, in Bombay 3% and in Madras 33-1/3%, and these pcJSls were not attached."}}, {"text": "Government of Mysore", "label": "ORG", "start_char": 54805, "end_char": 54825, "source": "ner", "metadata": {"in_sentence": "This would be evident from the order of the Government of Mysore dated 21st Septe'mber, 1947 set out in paragraph 8 of the affidavit in reply filed by respondent No."}}, {"text": "21st Septe'mber, 1947", "label": "DATE", "start_char": 54832, "end_char": 54853, "source": "ner", "metadata": {"in_sentence": "This would be evident from the order of the Government of Mysore dated 21st Septe'mber, 1947 set out in paragraph 8 of the affidavit in reply filed by respondent No."}}, {"text": "Bombay", "label": "RESPONDENT", "start_char": 56447, "end_char": 56453, "source": "ner", "metadata": {"in_sentence": "154-275 were\n\nsuperior or inferior to the ex-Bombay, ex-Madras and ex-Mysore teachers in the higher grade from the point of view of qualifications.", "canonical_name": "Bombay"}}, {"text": "Bombay", "label": "RESPONDENT", "start_char": 57976, "end_char": 57982, "source": "ner", "metadata": {"in_sentence": "154--275 could not possibly have been equated with those of ex-Bombay, ex-Madras and ex~Mysore teachers in the lower grade but the Central Government ignored this criterion altogether and pinned its decision only oa the other three criteria which also, as pointed out by us above, were either not applied at all or improperly applied.", "canonical_name": "Bombay"}}, {"text": "29th October, 1953", "label": "DATE", "start_char": 59504, "end_char": 59522, "source": "ner", "metadata": {"in_sentence": "The strongest reliance in support of this contention was placed on the Cadre and Recruitment Rules of the Hyderabad Educatilmal Service made by the Rajpramukh on 29th October, 1953."}}, {"text": "Cadre and Recruitment Rules", "label": "STATUTE", "start_char": 59601, "end_char": 59628, "source": "regex", "metadata": {}}, {"text": ".Central Government", "label": "ORG", "start_char": 62010, "end_char": 62029, "source": "ner", "metadata": {"in_sentence": "The equation that was to be made by the .Central Government was of posts and since posts would be in different grades, the equation of posts would necessarily involve the equation of grades."}}, {"text": "will first consider the position prior to the making of the Hyderabad Cadre and Recruitment Rules", "label": "STATUTE", "start_char": 63613, "end_char": 63710, "source": "regex", "metadata": {}}, {"text": "17th October, 1951", "label": "DATE", "start_char": 63772, "end_char": 63790, "source": "ner", "metadata": {"in_sentence": "There are several orders commencing from 17th October, 1951 and ending with 12th December, 1954, Annexures Fl to F4 to the petition, which clearly show that ex Hyderabad teachers in the grade of Rs."}}, {"text": "12th December, 1954", "label": "DATE", "start_char": 63807, "end_char": 63826, "source": "ner", "metadata": {"in_sentence": "There are several orders commencing from 17th October, 1951 and ending with 12th December, 1954, Annexures Fl to F4 to the petition, which clearly show that ex Hyderabad teachers in the grade of Rs."}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 64927, "end_char": 64941, "source": "ner", "metadata": {"in_sentence": "So also the letter dated 22nd December, 1962 addressed by the Director of Public Instruction, Andhra Pradesh to the Secretary to the Hyderabad Karoataka Teachers U mon\n\nAnnexue G2 to the petition pointed out that generally, in the ex- Hyderabad are::i.,"}}, {"text": "21st January, 1966", "label": "DATE", "start_char": 65466, "end_char": 65484, "source": "ner", "metadata": {"in_sentence": "Similarly, the letter dated 21st January, 1966 of the Depµty Secretary to Government oi Andhra Pradesh to tbe Accountant General, Andhra Pradesh, Annex, ure G3 to the petition, also asser.ted that the ex-Hyderabad teachers who were in the grade of Rs."}}, {"text": "1st November, 1956", "label": "DATE", "start_char": 65837, "end_char": 65855, "source": "ner", "metadata": {"in_sentence": "154--2 7 5 in case of their first promotion after 1st November, 1956\"."}}, {"text": "28th August, 1961", "label": "DATE", "start_char": 65920, "end_char": 65937, "source": "ner", "metadata": {"in_sentence": "Then there is also an order of the Government of Mysore dated 28th August, 1961, Annexure G4 to the petition, which said that Shri Vasant Rao Patil was promoted from the grade of Rs."}}, {"text": "Vasant Rao Patil", "label": "OTHER_PERSON", "start_char": 65989, "end_char": 66005, "source": "ner", "metadata": {"in_sentence": "Then there is also an order of the Government of Mysore dated 28th August, 1961, Annexure G4 to the petition, which said that Shri Vasant Rao Patil was promoted from the grade of Rs."}}, {"text": "30th December, 1954", "label": "DATE", "start_char": 66128, "end_char": 66147, "source": "ner", "metadata": {"in_sentence": "And, lastly, the letter dated 30th December, 1954 addressed by tht: Director of Public Instruction, Andhra Pradesh to the Seeretary, Hyderabad Karnataka Teachers Union, Annexure GS to the petition."}}, {"text": "Jt is true that the Hydrabad Cadre and Recruitment Rules", "label": "STATUTE", "start_char": 67014, "end_char": 67070, "source": "regex", "metadata": {}}, {"text": "Government of Andhra Pradesh", "label": "ORG", "start_char": 69437, "end_char": 69465, "source": "ner", "metadata": {"in_sentence": "The same position was reiterated by .the Government of Andhra Pradesh in its order dated 12th March, 1959."}}, {"text": "12th March, 1959", "label": "DATE", "start_char": 69485, "end_char": 69501, "source": "ner", "metadata": {"in_sentence": "The same position was reiterated by .the Government of Andhra Pradesh in its order dated 12th March, 1959."}}, {"text": "23rd January, 1950", "label": "DATE", "start_char": 69760, "end_char": 69778, "source": "ner", "metadata": {"in_sentence": "The Jetter dated 23rd January, 1950 addressed by the Director of Public Instruction, Hyderabad to he Principals and Head Masters, Anncxure G-S to the petition, al; o pointed out that for the purpose of promotion to Class II Gazi:tted cadre the date o( entry into the grade of Rs."}}, {"text": "Bangal.ore,", "label": "GPE", "start_char": 70311, "end_char": 70322, "source": "ner", "metadata": {"in_sentence": "So also, the Jetter dated 8th February, 1964 addressed by the Director of Public Instruction, Bangal.ore,\n\nAnnexurc G-7 to the petition, n:iterated that the grade of Rs."}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 71576, "end_char": 71584, "source": "ner", "metadata": {"in_sentence": "154-\n\nI::\n\nSHAHBUDDIN v. UNION (Bhagwati, J.)\n\n275 should not be equated with the ex-Bombay, ex-Madras and ex- Mysore-h1gher grades whlch.", "canonical_name": "BHAGWATI"}}, {"text": "21st September, 1947", "label": "DATE", "start_char": 72489, "end_char": 72509, "source": "ner", "metadata": {"in_sentence": "A o the order of the State Government dated 21st September, 1947 set out in paragraph 8 of the affidavit in reply of respondent No."}}, {"text": "State of Mysore", "label": "ORG", "start_char": 73093, "end_char": 73108, "source": "ner", "metadata": {"in_sentence": "6Q-.:..150 allocated to the State of Mysore, there were admittedly as many as 343 who were untrained graduates and 20 more were also untrained but they were undergoing training on deputation."}}, {"text": "Section VIII of the Bombay Civil Services Classification and Recruitment Rules", "label": "STATUTE", "start_char": 74384, "end_char": 74462, "source": "regex", "metadata": {}}, {"text": "Ccnt:ral Government", "label": "ORG", "start_char": 76603, "end_char": 76622, "source": "ner", "metadata": {"in_sentence": "Secondly, the criterion of the third factor, namely, the minimum qualifications required for recruitment to the posts was also not applied by the Ccnt:ral Government for the purpose of determin- E ing t:1c equation of the posts of ex-Coorg teachers in the grade of Rs."}}, {"text": "S. Kannan", "label": "OTHER_PERSON", "start_char": 78726, "end_char": 78735, "source": "ner", "metadata": {"in_sentence": "lt appears from the affidavit in reply filed by S. Kannan, Deputy Secretary to the Government of India, Cabinet Secretariat on benalf of the Central Government, that the m.l.in consH.leration which prevailed with the Central Government in equating the posts of ex-Cuorg teachers in the grade of Rs."}}, {"text": "Janatha College", "label": "ORG", "start_char": 80350, "end_char": 80365, "source": "ner", "metadata": {"in_sentence": "100--300 to be appointed Principal, Janatha College in the ; grade of Rs."}}, {"text": "Government of Coorg", "label": "ORG", "start_char": 80495, "end_char": 80514, "source": "ner", "metadata": {"in_sentence": "That is obvious from the order o~ the Government of Coorg, dated 27th June, 1956, Annexure 8 to the petition, promoting B. Suryanarain Rao and S. S. Krishna Rao from the grade of Rs."}}, {"text": "27th June, 1956", "label": "DATE", "start_char": 80522, "end_char": 80537, "source": "ner", "metadata": {"in_sentence": "That is obvious from the order o~ the Government of Coorg, dated 27th June, 1956, Annexure 8 to the petition, promoting B. Suryanarain Rao and S. S. Krishna Rao from the grade of Rs."}}, {"text": "B. Suryanarain Rao", "label": "OTHER_PERSON", "start_char": 80577, "end_char": 80595, "source": "ner", "metadata": {"in_sentence": "That is obvious from the order o~ the Government of Coorg, dated 27th June, 1956, Annexure 8 to the petition, promoting B. Suryanarain Rao and S. S. Krishna Rao from the grade of Rs."}}, {"text": "S. S. Krishna Rao", "label": "OTHER_PERSON", "start_char": 80600, "end_char": 80617, "source": "ner", "metadata": {"in_sentence": "That is obvious from the order o~ the Government of Coorg, dated 27th June, 1956, Annexure 8 to the petition, promoting B. Suryanarain Rao and S. S. Krishna Rao from the grade of Rs."}}, {"text": "Janatha College, Kudige", "label": "ORG", "start_char": 81354, "end_char": 81377, "source": "ner", "metadata": {"in_sentence": "250--10--350), the intennediate promotional post was that of Superintendent, Janatha College, Kudige in grade Rs."}}]}
{"document_id": "1975_3_333_364_EN", "year": 1975, "text": "STATE OF U.P.\n\nRAJ NARAIN & ORS.\n\nJanuary 24, 1975 [A. N. RAY, c. J., K. K. MATHEW, A. ALAG!RISWAMI; R. s. SARKARIA, B\n\nAND N. L. UNTWALIA, JJ.]\n\nIndian Evidence Act, ss. 123 and 162--Scope of. .\n\nSection 123 of the Evidence Act states that no one shaU be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department con cerned who shall give or withhold such permission as he thinks fit., Section 162 provides that when a witness brings to Cou1i a document in pursuance of summons and then raises an objection to its production or admissibility the Court has to ·\n\ndetermine the validity of the objection to the production or admissibility and for . so doing the Court can inspect the document except in the case of a document re\n\n . lating to the affairs of State or take such other eviJcncc as my be necessary to de termine its admissibility.\n\nIn connection with his election petition the respondent made an application be fore the High Court for summoning the Secretary. General Administration and Chief Secretary of the State Government and thelieadclerk of the office of the Superintendent of Police of the District for the production of the Blue Book en titled \"rules and instructions for the protection of the Prime Minister when on tour or in travel\", and certain other correspondence exchanged between the Government of India and the State Government in that connection. The Home Secretary de\n\nputed one of his officers to go to the court alongwith the documents but with clear instructions that he should claim privilege in repect of those documents under s. 123 of Evidence Act. No affidavit of 1he Minister concerned or the Head of the Department was, however, filed at that time. In the course of examination the witness claimed privilege in respect of the documents. The election petitioner thereupon contended that th~ Head of the Department had not filed an affidavit claim ing privilege and that the documents did not relate to the affairs of the State. The documents in respect of which privilege was claimed were sealed and kept in the custody of the Court. When the matter came up for hearing, however. the Home Secretary to the State Government, filed an affidavit claiming privikge for the documents. Jn respect of the document' summoned from the office of the Superintendent of Police an affidavit claiming privileA<' under s. 123 t'f the Evidence Act was tiled by the Superintendent of Police.\n\nThe High Court held that (i) under s. 12'.l of the. Evidence Act the Minister 01 the Head of the Department concerned must file an affidavit in the first instance and since no such nttidavit had been filed in the first inst:ncc the pri1ilcc was lost and the affidavit filed later claiming privilege was of no avail. (ii) that it would decide the quetion or privilege only when permission to prc>ducc a document hd been withheld under~. 121: I iii) thal. the Blue Book in respect of which privilege was claimed was not ; rn unpublished official recorct re!at'ng to the affslrs of the. State becnuse the Union Gmcrnmcnt had ieferred to a rortion of it in one .of its affidavits and a member of Parliament had rcferre.d tc :t puticular rule of the Blue Book in Par!i:iment: (iv) th:it no reaons were given\n\nwhy the disclosue of the document~ would be against public interest; and (vl that 1t had power to inspect the documents in respect. of which privilege was claimed. ·\n\nAllowing the appeal to this Court, (per A. N. Ray. CJ .. A. Alagiriswami, R.\n\nS. Sarkaria and N. L. Untwalia, JJ) : ·\n\nHELD : The foundation of the law behind ss. 123 and 162 of the Evidence Act i\\ the same as in English Law. It is that injury to public interest is the reason for the exclusion from disclosure of document' whose contents. if disclosed, would injure public and national interest. Public interest which demands that evidence be 7--423SCil75\n\nwithheld is to be weighed against the public interest in the administration of justice that .courts should have the fullest possible access to all relevant materials. When pubhc mterest outweighs the latter, the evidence cannot be admitted. The Court\n\nill proprio motu ecl1;1de. evidence, the product.ion of which is contrary to public mterest. It 1s m public interest that confidentiality shall be safeguarded. Confidentiality is not a head of privilege. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather th<tt the documemts would. be of a class which demand protection. [348E-HJ\n\nEvidence is admissible and should be received by the Court to which it fa tendered unless there is a legal reason for its rejection. Admissibility presupposes relvancy. Admissibility alSI) denotes the absence of any applicable rule of exclusion. Fa-cts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inad missible are two fold : (I) Evidence of relevant facts is inadmissible when its re. ception offends against public policy or a particular rule of Jaw. A party is some times es topped from proving facts and these facts are therefore inadmissible; (2) Relevant facts an!, subject to recognised exceptions, inadmissible unless they are proved by the best or the pres<:ribed evidence. Secrets or State. State papers, confidential official documents and communications between the Government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service. [343H; 344A-Cj\n\nConway v. Rimmer & Anr. [1968] 1 A.E.R. 874 & [1968] A.C. 910; Duncan\n\nv. Cammel/ Laird & Co. [1942] A.C. 642 and Rogers v. Home Secretary [1973] A.C. 388, referred to.\n\n(I) It is now the well si; ttled practice in our country that an objection is raised by an affidavit affirmed by the Head of the Department. The Court may also require a Minister to affirm an affidavit. Where no affidavit was filed, an affidavit c:ould be directed to be filed later on. [349B]\n\n(2) It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in E that behalf. If the Court is satisfied with the affidavits, the Court will refuse disclosure. If the Court. in spite of the affidavit; wishes to inspect the document the Court mny do so. [349E]\n\nC'rm\"cnor Hotel, London [1963] 3 A.E.R. 426, referred to.\n\n'1' f o the present c:ase it cannot be said that the Blue Book is a published docum nt Any rub'ication of parts of the Blue Book which may be described as an ino''cuous part of the doi:ument will 'i10t render the entire document a published F dornm n' f349H]\n\n-( 4 l r n the in,'lant case it is apparent that the affidavit affirmed by the Chief Secr0 •,, v is an affidavit objecting to the production of the documents. The oral evidence of the witness as well as the aforesaid affidavit shows that objection was taken at the first instance. [3490]\n\n(5) If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would vet like to satisfy itself. the Court mav see the document. Ob\n\njction as to production as well as admissibility contemnlated in s. 162 of the Evid1:nce Act is decided by the Court in the enquiry. [349B-C]\n\nState of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R. 371, followed.\n\nPer Mathew, l. (Concurring) : !(a) The foundatiqn of the so called privilege is that the information cannot h: disclosed without injury to public interest and not that the docume.nt is confidential or official, which alone is no reason for its non.production_. [353C-.D]\n\nAsiatic Petroleum Companv Ltd. v. Anq/o Persian Oil Co. [1916] I K.B. 822 at 830; Conway v. Rimmer [19681 1 All. E.R. 874 at 899 and Duncan v. Cam me/I Lavid & Co. [1942) A.C. 624, referred to.\n\nU. P, ~TATE V. RAJ\n\nNARAIN 335\n\n(b) A privilege normally belongs to the parties and can be \\\\<aived. But where a fact is excluded from evidence by considerations of public policy, there is no power to waive in the parties. [353F-G]\n\nMurlidhar Agarwal v. State of U.P. [1974] 2 S.C.C. 472 at 483, rP.ferred to.\n\nIn the instant case the mere fact that the witness brought the documents to Court in pursuance to the summons and did not file a proper affidavit would not mean that the right to object to any evidence derived from an unpublished official record 1elating to affairs of State had been for ever waived and as no affidavit had been filed it might be that a legitimate inference could be made that the Minister or the Head of the Department concerned 11ei:mitted the production of the document or evidence being given derived from it, if\"there was no other circumstance. If the statement made by the witness that the document was a secret one and that he had no been permitted by the Head of the Department to produce it, was not really an objection to the production of the document which could be taken cognizance of by the Court under s. 162 of the Evidence Act, it was an intimation to tlte Court that the Head of the Department had not permitted the production of the document in Court or evidence derived from it being given. Whatever else the statement might indicate, it does not indicate that the Head of the Department had permitted the production or disclosure of the document. [355D~F]\n\n(2) Section 123 enjoins upon the Court the duty to see that no one is permitted to give any evidence derived from unpublished official records relating to affairs of State unless permitted by the 0fficer at the Head of. the Department.\n\nThe Court therefore, had a duty not to permit evidence derived from: a secret document being given. Before the arguments were finally concluded and before the Court decided the question the Head of the Department .filed an affidavit objecting to the production of the document and stating that the document in question related to secret affairs of State, and the Court_ should have considered the validity of that objection under s. 162 of the Evidence Act. [355G-A;\n\n356A-B] ·\n\nCrompton Ltd. v. Custom & Excise Commrs. [1972] 2 Q.B. 102 at 134 and Conway v. Rimmar & Anr. [1968] A.C. 910, referred to.\n\n(3) There is no substance in the argument that since the Blue Book had been published in parts, it must be deemed to have been published as a whole, and, therefore, the document could not be regarded as an unpublished official record relating to affairs of State. If some parts of the document which are innocuous have been published, it does not follow that the whole document has been pnblishm'. Since the High Court did not inspect the Blue Book, the statement by the Court that the materials contained in the file produced by the Superintendent of Police were taken from thel Blue Book was not warranted. [362B-C; E]\n\n( 4) The mere label given to a document by the executive is not conclusive in respect of the question whether it relates to affairs of State or not. If the disclosure of the contents of the document would not damage public interest the executive cannot label it in such a manner as to bring it within the class of documents which are normally ntitled to protection. [362E-F]\n\n5 (a) It is difficult to see how the Cou.rt can find, without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest, that a document is one relating to affairs of State as, ex hypothesi, a document can relate to affairs of State only if its disclosure will injure public interest.\n\nBut in cases where the documents do not belong to the noxious class and yet their disclosure would be injurious to public interest, the inquiry to be conducted under s. 162 is an enquiry into the validity of the objection that the document is an un-. published official record relating to affairs of State and. therefore, permission to give evidence derived from it is declined. [357H; 358A-BJ\n\n(b) Section 162 visualises an inquiry into that objection and empowers the Court to take evidence for deciding whether the objection is valid.\n\nThe Court, . therefore. has to consider two things : (i) whether the document relates to secret affairs of State: and\n\n(ii) whether the refusal to permit evidence derived from it being given was in the public interest. [358C]\n\nSUPR.EME COURT REPOR'.I'S ~1975~ 3 s.c.R.\n\n( c) Even though the Head of the Department refused to grant permission, it was open to the Court to go into the question after examining the document and\n\nrid out whether, the disdosure of the document wo1J!d be injurious to public mterest and the expres, ion \"as he thinks fit\" in the latter part of s. 123 need not deter the Court from deciding the question afresh as s. 162 authorities the Court to dete; ymine the validity of the objection finally. [358F] ·\n\n\n( d) When a question of national security is involved the Court may not be the\n\npropr forum to weigh the matter and that is the reason why a Minister's certificme 1s taken as conclusivi:. As the executive is solely responsible for national\n\necurit)', including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters mi2ht fall into a class which per se might rquire protection. [359B-C]\n\n(e) But the executive is not the organ solely responsible for public inkrest.\n\nThere are other elements. One such element is the administration of justice. The claim of the executive to exclude evidence is more likely to operate to subserve a partial interest, viewed i:xclusively from a narrow departmental angle.\n\nIt is impossible for it to se1~ or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered the Court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.\n\nIt seems reasonable to assume that a Court is better qualified than the Minister to measure the importance of the public interest in the case before it. Once considerations of national security are left out. there are few matters of public interest which ·annot safely be discussed in public. [139C-D; F-Gl\n\nA r1wments for the Appel/a111\n\nThe principle behind s. 123 is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section. In cases where the document in question obviously relates to affairs of State it is the rJuty of the C1<1urt to prevent the production and admission of the document in evidence suo 1110/u to safeguard public interest Matters of State referred to in the second clause of s. 162 are identical with affairs of State mentioned ins. 123. An objection against the production of document should be raised in the form of an affid<1vit by the Minister or the. Secretary. When an affidavit was made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the affidavit is found unsatisfactory a further affidavit may be called, and in a pro- Jicr case th\" person making the affidavit should be summoned to face an examination on. the relevant: point. Here too this Court did not consider that any party can raise the objection and it is the duty of the Court to act suo molll in cases wh<::re the dorumcnts in question obviously relate to affairs of State. Therefore, the Court cannot hold an inquiry into the posible injury to public interest. That i!> a matter for the authority to decide. But the Court is bound to hold a preliminary enquiry and determine the validity o[ the objections which necessarily involves an inquiry into the question a' to whether the evidence relates to an affair of State under s. 123. Jn Jf1i1 inquiry the Court. has to determine the character and class of the document. The provisions of s. 162 make a departure from English law in one\n\nmatrial pnrticular and that is the authority given to the Court to hold a preliminarv enquiry into the character of the document. Under s. 162 of the Evidence Act the Court has the overriding power to disallow a claim of privilege raised by the State in respect of an unnublished document pertaining to matters of State, but in its di, cretion the Court will exercise its power only in exceptional circumstances when nublic interest demands, that is, when the public interest served by the disclosure clearlv outweihs that served by the non-disclosure. In this case the Chief Sccretan filed an affidavit whereas the Minister would have done it. This claim of privilege is not rejected on account of this procedural defect.\n\nArgume/l/s for th~ 'cspondent\n\nIn the present case the. affidavit was not filed at the relevant time, nor is it clear that the Secretary or the Minister of the Department concerned ever applied the:ir 1nind at the relevant time. The Supreme Court in Sukhdeo Singh's case held that\n\nA I\n\nliJ, P. STATE V, RAJ NARAIN (Ray, C.J.) 337\n\nthe objection to the production or admissibility of document of which privilege is claimcid, should be. taken by' himself by means of an affidavit. Section 162 of the Evidence Act indicates that the objection should be filed on the date which is fixed for the production of docwnent so that the Court may decide the validity of such objection. Such objection must be by. means of an affidavit. In A mar Chand Butail v .. Union of India the Suprem.e Court held that as the affidavit was not filed, no privilege could be claimed. This Court also looked to the document and on merits it was held that the document was not such document whose disclosure was not in the pubric interest. On that ground also, the Claim for privilege was disallowed. In the present case the question does not arise as the summons was issued to the .Head of the Department who was asked to appear in person or through some other officer authorised by him for the purpose of giving evidence and for producing documents. The Head of the Department was, therefore, under obligation to comply with the summons of the Court and to file his affidavit if he wanted to claim privilege. The High Court was right in drawing inference from nonfiling of the affidavit of the, Head of the Department that no privilege was claimed.\n\nThe Court has a right to look to the document itself and take a decision as to whether the document concerned was such which at all related to any affairs of the State. The Court has the power of having a judicial review over the opinion of the Head of the Department.\n\nCIVIL APPELLATE JuRISDICRION : Civil Appeal No. 1596 of 1974.\n\nAppeal by Special Leave from the Judgment and Order dated the 20th March, 1974 of the Allahabad High Court in Election Petition No. 5 of 1971.\n\nNiren De, Attorney General of India, B. D. Agarwa/a, and 0. P.\n\nRana, for the appellant.\n\nShanti Bhushan and 1. P. Goyal, for respondent no. 1.\n\nYogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no. 2. ·\n\nThe Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S. Sarkaria and N. L. Untwa!ia, JJ, was delivered by A. N. Ray, C.J. K. K.\n\nMathew, J. gave his separate Opinion.\n\nRAY, C.J.-This is an apeal by special leave from the judgment dated 20 March, 1974 of the learned Single Judge of t.he High Court at Allahabad, holding that no privilege can be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is described for the sake of brevity to bet~ Blue Book sunimoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh.\n\nShri Raj Narain, the petitioner in Eelection Petition No. 5 of 1971 in the High Court ofAllahabad, m.ade an application on 27 July, 1973 for summoning certain witnesses along with documents mentioned in the application. The summons was inter alia for the following witnesses along with following documents :\n\nFirst, the Secretary, General Administration, State of Uttar Pradesh\n\nLuckrio~ oi: any officer .authorised by him was summoned to produce . iitter a(ia . (a) circulars received from the Hoine Ministry and the Defence. 'Mfuistcy of the Uriioil Oovel'1JBicnt regarding the security and\n\ntour arrangements of Shrimati Indira Nehru Gandhi, the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February, 1971 or any general order for security arrangement; and (b) All correspondence between the St!j.te Government and the Government of India. and between the Chief Minister and the Prime Minister regarding Police arrangement for meeting of the Prime Minister by State Government and in regard to their expenses.\n\nSecond, the Chief Secretary, Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely,\n\n(a) circulars received from the Home Ministry and Defence Ministry of the Union Government regarding the security and tour ai:rangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government ol' India and between thl~ Chief Minister and the Prime Minister, regarding the arrangement of Polic:e for the arrangement of meeting for the Prime Minister by State Government and in regard to their expenses.\n\nThird, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to the tour programme of Shrimati Indira Nehru Gandhi of District Rae Bareli for 1 and 25 February, 1971;\n\n(b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements for constructions of Rostrum, fixation of loudspeakers and other arrangements through Superintendent of Police, District Rae Bareli.\n\nOn 3 ,.September, 1973 the summons was issued to the Secretary, _General Administration.\n\nThe summons was endorsed to the Confidential Department by the General Department on 3 September,, 1973 as will appear from paragraph 5 of the affidavit of R. K. Kaul, Commissioner and Secretary in-charge. On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effect that the Chief Secretmy-is not personally required to appear pursuant to the summons.\n\nThe learned Judge made atl order on that day that the Chief Secretary need not personally attend and that the pap'ers might be sent through some officer.\n\nOn 6 September, 1973 S. S. Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul, Home Secretary as well as Secretary, Confidential Department, to go to the High Court with the documents summoned and to claim privilege. This will appear from the application of S. S. Saxena dated 19 September, 1973.\n\nIn paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Court the Home Secretary deputed the applicant Saxena to go to the Court with the documents summoned with clear instructions that privilege is to be claimed under section 123 of the Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and\n\nU. P. STATE V, RAJ NARAIN (Ray, CJ.)\n\nJ3 9\n\nInstructions for the protection of the Prime Minister when on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U.P. and the Prime Minister in regard to the Police arrangements for the meetings of the Prime Minister.\n\nSaxena was examined by the High Court on 10 September, 1973.\n\nOn 10 September, 1973 there was an application on behalf of the Election Petitioner that the claim of privilege by Saxena i'n his evidence be rejected.\n\nIn the application it is stated that during the course of his statement Saxena admitted that certain instructions were issued by the Central Government for the arrangement of Prime Minister's tour which are secret and hence he is not in a position to file those documents. The witness claimed privilege in respect of that document.\n\nIt is stated by the election petitioner that no affidavit claiming privilage has been filed by the Head of the Department and that the documents do not relate to the affairs of the State.\n\nOn 11 September, 1973 there was an order as follows; The application of the election petitioner for rejection of the claim for privilege be put up for disposal.\n\nThe arguments might take some time and therefore the papers should be left by Saxena in a sealed cover in the Court. In case the objection would be sustained, the witness Saxena would be informed to take back the sealed cover.\n\nOn 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police, Rae Bareli claimed privilege under section 123 of the Evidence Act. The witness was discharged. On behalf of the election petitioner it was said that an objection would be filed to make a request that the Superintendent of Police, Rae Bareli 1?e produced before the Court for cross examination.\n\nThe election petitioner filed the objection to the affidavit claiming privilege by the Superintendent of Police, Rae Bareli.\n\nOn 13 September, 1973 the learned Judge ordered that arguments on; the question of privilege would be heard on 19 September, l,973.\n\nS. S. Saxena filed an application supported by an affidavit of lt. K.\n\nKaul. The deponent R. K. Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosure will be prejudicial to public interest for the reasons set out therein. The secrecy of security arrangement was one of the reasons mentioned.\n\nAnother reason was that arangements of the security of the Pr.irne Minister, the maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such that to make them public would frustrate the object intended to be served by these Rules and Instructions.\n\nOn 20 September, 1973 the case was listed for arguments for deciding preliminary issues and on the question of privilege. On 20 September, 1973 an objection was made that the Chief Standing Counsel had no locus standi to file an objection claiming privilege.\n\nOn 21 September, 1973 the arguments 'in the matter of privilege were heard. On 24 September, 1973 further arguments on the question of\n\n340 SUPREME COURT Rl~PORTS {1975] 3 s.c.R.\n\nprivilege were adjourned until 29 October, 1973. 23 October, 1973 was holiday. On 30 October, 1973 arguments were not concluded.\n\nOn 30 October, 1973 the Advocate General appeared and made a statement regarding the Blue Book to the effect that the witness Saxena was authorised by the Head of the Department R. K. Kaul, Home Secretary to bring the Blue Book to the Court and the documents summoned by the Court and the Head of the Department did not permit Saxena to file the same.\n\nThe witness was permitted to show to the Court if the Court so needed. Further arguments on the question of privilege were heard on 12, 13 and 14 days of March, 1974 The judgment was delivered on 20 March, 1974.\n\nThe learned Judge on 20 March, 1974 made an order as follows\n\n\"No privilege ca'.1 be claimed in respect of three sets of paper allowed to be produced. The three sets of papers are as follows. The first set consists of the Blue Book, viz., the circulars regarding the security arrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received from the Government of India and the Prime Minister's St:cretariat on the basis of which Police arrangement for constructions of Rostrum, fixation of loudspeakers and other arrangements were made, and the correspondence between the State Government & the Government of India regarding the police arrangements for the meetings of the Prime Minister. The second set also relates to circulars regarding security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regarding the arrangement of police for the meetings of the Prime Minister. The third set summoned from the Head Clerk of the Office of the Superintendent of Police relates to the same.\"\n\nThe larned Judge expressed the following view.\n\nUnder se1::tio11 123-of the Evidence Act the Minister or the head of the department -concerned must file an affidavit at the first instance. No such affidavit was filed at the first instance. The Court cannot exercise duty under :section 123 of tht~ Evidence Act suo motu. The court can function\n\nonly after a privilege has been claimed by affidavit. It is only when permission has been withheld under section 123 of the Evidence Act that the Court will decide. Saxena in his evidence did not claim privilege even after the Law Department noted in the file that privilege\n\n'should be daimed Saxena was allowed to bring the Blue Book with-\n\n. out being sealedin a cover.\n\nThe head of the department should have sent the Blue Book under sealed cover along with an application and an affidavit to the effect that privilege was being claimed.\n\nNo privilege was daimed at the first instance.\n\nTh~ learned. Judge further held as follows. The Blue Book is not an unpublished official record within the meaning of .section 123 of the Evidence Actbecause Rule 71 (6) of the Blue Book was quoted by a Member of Prliament. The Minister did not object or deny the correctness of the quotaticm.\n\nRule 71(6) of the Blue Book has been\n\ntJ. P. STATE 'V,'Rl\\:J !WlAIN (Ray, C.J.) 3H\n\nfiled in the eltion pctition by the respondent to the election petion Extracts of Rule' 11 ( 6) of the Blue Book were filed by the Umon Governt in a writ proceeding. If a portion of the Blue Book had been' disclosed, it was not an unpublished official record. The respondent to the election petition had no right to file even a portion of the Blue Book' in support of her defence. When a portion of the Blue Book had been used by her in her defence it cartnot be said that the Blue Book had not been admitted in evidence. Unless the Blue Book is shown to the election petitioner he cannot' show the correctness or otherwise of the said portion of the Blue Book and cannot effectively cross-examine the witnesses or respondent to the election veutton.\n\nEven if it be assumed that the Blu.e Book has not been admitted in evidence a, nd Kaul's affidavit eould be taken into consideration, the Blue Book is not an unpublished official record.\n\nWith regard to documents summoned from the Superintendent of Police the High Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not give, any reason why the disclosure of the documents would be against public interest, the documents summoned from the Superintendent of P9lice cannot be privilege documents either.\n\nThe High Court further said that in view of the decisions of this Court in State of Punjab v. Sodhi Sukhdev Singh('); Amar Chand Butail v. Union of lndia(2) and the English decision in Conway v.\n\nRimmer & Anr.( 8) the eourt has power to inspect the document regarding which privilege is claimed.\n\nBut because the Blue Book is not an unpublished official record, there is no necessity to inspect the Blue Book.\n\nl'he English decisions in Duncan v. Cammell Laird & Co.(\"); Conway v. Rimmer & Anr. (supra); and Rogers v. Home Secretary( 5) ·· surveyed the earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the ublic interest or service. In the Cammell Laired case (supra) the respondent objected to produce certain documents referred to in the Treasury Solicitors letter dire<;_ting the respondent not to produce the documents. It was stated that if the letter was not accepted as sufficient to found a claim for privilege the First Lord of Adrnirality would make an affidavit.\n\nHe did swear an affidavit.\n\nOn summons for inspection of the documents it was held that it is not uncommon in modern practice for the Minister's objection to be conveyed to the Court at any rate in the first instance by an official of-the department ·· who prodUces a certificate which the Minister has signed stating what . is necessary. If the Court is not satisfied by this method the Coutt\n\ncan: request the Minister's personal attendance ..\n\n(1) (1961] 2 S.C.R. 371.\n\n(2) AJ.R. 1964·8.C. 1658.\n\n(3) [1%8] 1 A.E.R 874 : [1968}A C 910.\n\n(4) [19421AC-642.\n\n(5) [1973] AC 388.\n\n<.irosvenor Hotel, London(!) group of cases turned on an order for mutual discovery of documents and an affidavit of the respondent, the British Railway Board, objecting to produce certain documents.\n\nThe applicant challenged that the objection of the respondent to produce the document was not properly made. The applicant asked for leave to cross-examine the Minister.\n\nThe Minister waa ordered to swear a further affidavit.\n\nThat order of the learned Chamber Judge was challenged in appeal. The Court of Appeal refused to interfere with the discretion exercised by the Chamber Judge.\n\nThe Minister filed a further affidavit.\n\nThat affidavit was again challenged b':fore the learned Chamber J111dge as not being in compliance with the order.\n\nIt was held that the affidavit was in compliance with the order. The\n\nlearntd Judge held that Crown privilege is. not merely a procedural matter and it may be enforced by the courts in the interest of' the Sta1.e without the intervention of the executive, though normally the executive claims it. The matter was taken up to the Court of Appeal, which upheld the order of the Chamber Judge. It was observed that the nature of prejudice to the public interest should be specified in the Minister's affidavit except in case where the prejudice is so obvious that it would be unnecessary to state it.\n\nIn the Cammell Laird case (supra) the House of Lords said that documents are excluded from production if the public interest requires that they should be wiithheld.\n\nTwo tests were propounded for such exclusion.\n\nThe first is in regard to the contents of the particular document.\n\nThe second is the fact that the document belongs to a class which on grounds of public interest must as a class be withheld from production. This statement of law in the CammeU Laird case (supra) was examined in Conway v. Rimmer & Anr.\n\nIn Conway v. Rimmer & Anr.\n\n(supra) it was held that although an objection validly taken to production on the ground that this would be injurious to the public interest is conclusive it is important to remember that the decision ruling out such document is the decision of the Judge. The reference to 'class' documents in. the Cammell Laird case (supra) was said in Conway v. Rimmer & Anr. lsupra) to be 1>biter. The Minister's clai mof privilege in the Cammell Laird case (supra) was at a time of total war when the slightest escape 1to the public of the most innocent details of the latest design of submarine founders might be a source of danger to the State.\n\nIn Conway v. Rimmer & Anr. (supra) the test propoundr, d in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.(2 ) was adopted that the infonnation cannot be disclosed without injury to the public interest and not that the documents are confidential or official.\n\nWith regard to particular, class of documents for which privilege was claimed it was said that the Court would weigh in the balance on the one sidf: the public interest to be protected and on the other the interest of tli1e subject who wanted production of s1>me\n\n(1) (1963) 3 A ER 426 : (1964) 1 A ER 92 : (1964) 2 A ER 674 and (1964)\n\n3 AER 354.\n\n(2) [1916] l KB 830.\n\nU, 1', ST~'l'B V. RAJ NARAIN (Ray, CJ.)\n\ndocuments. which he believed would support his own or defeat his adversary's case. Both were said iri Conway v. Rimmer & Anr. case\n\n(supra) to be matters of public interest.\n\nIn this background it was held in Conway v. Rimmer &: Anr.\n\n(supra) that a claim made by a Minister on the basis that the dis- Closure of the contents would be prejudicial to the public interest must receive the greatest weight; b_ut even here the Minister should go as far as he properly can without prejudicing the public interest in saying why the contents require protection. IJ!._(:'onway v. Rimmer & Anr.\n\n(supra) it was said \"in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the document itself and then ordering its production\". As to the ''class\" cases it was said in Conway v. Rimmer & Anr; (supra) that some documents by their very nature fall' into a class which requires prokction. These are Cabinet papers, Foreign Office dispatches; the security of the State, high level interdepartmental minutes and corres-· ponaence and documents pertaining to the general administration of the naval, military and air force services.\n\nSuch documents would be the suoiect ot privilege by reason of their contents and also by their 'class'.\n\nNo catalogue can be compiled for the 'class'. cases.\n\nThe reason is that it would be wrong and inimical to the functioning of the public service if the public were to learn of these high level communiCations, however innocent of prejudice to, the State the actual comments , of any parti~ cular document might be. -\n\n- -\n\nIn Rogers v. Home Secretary (supra) wit.nesses were summoned to give evidence and to produce certain documents. The Home Sccre- E tary gave a certificate objecting to the production of documents.\n\nThere was an application for certiorari to quash the summons issued .to the witnesses. On behalf of the Home Secretary it was argued that the Court could of its own motion stop evidence being given for documents to be produced.\n\nThe Court said that the .real question waa whether the public interest would require that the documen1s should not be produced.\n\nThe Minister is an appropriate person to assert F public interest. The public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts shoµ_ld have the fullest possible access to all relev11nt material. Once the public interest is found to demand that the evidence should be withheld then the evidence cannot be admitted. In proper c;:ases the Court will exclude evidence the production of which it sees is contrary to public interest. In short, the G 'position in law in England. is that it is ultimately for. tlJe court to\n\ndecide whether or not it is in the public interest that e dbcument should be disclosed.\n\nAn affidavit is necessary.\n\nCourts have some times held certain class of documents and information to bC entitled in the public interest to be immune from disclosure. ..\n\nEvidence . is admissible and should be received by th cJirt to\n\nB which it is tendered unless there is a legal reason for its rejection.\n\nAdmissibility presupposes relevancy._ Admissibility also denotes the absence of any applicable rule of exclusfon. Facts should not be .received in evidence unless they are both relevant and admissible.\n\nH97S] 3 s.c:.a.\n\nThe principal r~ of exdi.islcn under which evidence becomes inadmissible are tw<>\"fold. First,· evidence 'of relevantfacts is inadmisMible\n\nwhen its reception offends agt public policy Or' a particular rule Of law.. Some matters. arf~ ptiyileged from. disclosure .. A party is sometim~ estopped from proving f!icts and tJ, iese facts 11re therefore inadmissible. The exclusion of evidence of opinion and of extrinsic evidence of the content& of some .documents is again a rule of law.\n\nSecond, relevant facts are subject to recognied exceptions inad11nissible unless thf:y am proyed by the best or the prescribed evidem:e.\n\nA witness, though competent generally to give evidence, may in •certain cases daim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of state, state papers, •confidential offi.cial documents and communications between the Gov- ernment and its officers or l5efWeen such officers are privileged from production on the ground of public. policy or as being detrimenta.I to the public interest or service. The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was argued there that the , documents .could not be withheld because.they had already been produced before the Tribunal 011 Enquiry into the loss of the \"Thetis'. The House of Lords held that if a claim was validly made in other respects to withhold documenw in connection with the pf:nding action on the ground of public policy it would not be defeated by the circumstances that they had been given a limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunal's\n\nsitting.5 might be secret.\n\nIn Conway v. Rimmer & Anr. (supra) it was said that it would not matter that some d•etails of a document might have been disclosed at an earlier enquiry. It was said that if part of a document is innocuous but part of it is of such a nature that its disclosure wld be undesirable it should seal up the latter part and order discovery of the rest, provided that this would not give a distorted or misleading impression.\n\nThis Co.urt in Sukhdev Singh's C<ase (supra) held that the principle behind section 123 of the Evidence Act is the overriding and paramount charactiir of public interest and injury to public. interest is the sole foundation of the section. Section 123 states that no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State except with the permission of the Officer at the head of the deprtment concerned, who shall give or withhold such permission as he thinks fit. The expression \"Affairs of State\" in section 123 was explained with. reference to section 162 of the Evidence Act. Section 162 is in three limbs. The first limb\n\nstates that a witness summoned to produce a document shall, if it is in his possession . or power, bring it fo the Court, notwjthstanding any objection which there may be to its production or to its admissibility . . The validity of any suh objection shall re decided by the CQurt. The second liml> of sectfon 162 says th.at the CCJQrt, Jf it see&. fit, may '.inspect the qoctlritent, unless it refers to Jtiatters of Sta.te, or ta, ke ofber \"evidence to enable-it to de:termine on its admi'ssibilify. The third limb\n\nspeaks of tran61ation of. documents which is not relevant here. In Sukhdev Singh's, case (supra) this COurt said. that the first limb .of section 162 required a witness to produce a docu~nt to bring it to the Court and then raise an objection against its production or its:\n\nadmissibility.\n\nThe second limb refers to the objection both as to production and admissibility.\n\nMatters of State in the second limb of section 162 were said b_y this Court in Sukhdev Singh's case (supra) to be identical with the expression \"affairs of State\" in section 123.\n\nIn Sukhdev Singh's case (supra) it was said that an objection against the production of document should be made in the form of an affidavit by the Minister or the Secretary.\n\nWhen an affidavit is made by the Secretary, the Court may, in a proper case; reqa.ire the affidavit of the Minister.\n\nIf the affidavit is found unsatisfactory, a further affidavit may be called. In a proper case, the person making the affidavit can be summoned to face an examination. In Sukhdev Singh's case (supra) this Court laid down these propositions. , First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest.\n\nThe Court would enquire into the question as to whether the evidence sought to be excluded from_production relates to an affair of State. The Court has to determine the character and class of documents. Second, the harmonietts-GOnstruction of sctions 123 an~ 162 shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into. the character of the document.\n\nThird, the expression \"affairs of State\" in section 123 is not capable of definition. Many illustrations are possible. \"If the proper functioning of the publii: service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs\".\n\nFourth, the second limb of section 162 refers to the objection both as to the production and the admissibility of the document.\n\nFifth, reading sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of document in question. That is a matter for the authority concerned to decide.\n\nBut the Court is competent and is bound to hold a. preliminary enqziiry\n\nand determine the validity of the objection to its production.\n\nThat necessarily involves an enquiry iv.to the question as to whether the l-Vidence relates to ari affairs of State under section 123 or not.\n\n. In Sukhdev Singh's case (supra) this Court said that the power to inspect the documents cannot be exercised where tlie objection relates to a documents having reference to matters of State and it is raised under section 123 (See (1961) 2 S.C.R. at page 839). The view expressed by this Court iS that the Court is empowered to take other evidence to enable it to determine the validity of the objection. The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objec_tion raised even miller section 123. It is said that the Court may take collateral evidence to determine the character or class of documents.\n\nIn Sukhdev Singh's case (supra) it has also been, said that if the Court\n\nfinds that the document belongs to what is said to be the noxious class it will lt:ave to the discretion of the head of the department whether to !)Ctmit its production or not.\n\nThe concurring views in Sukhdev Singh's case (supra) also 1::xpressed the opinion that under no circumstances the court caa iospt:ct such a pocument or permit giving secondary evidence of it& contents.\n\nIn Amar Chand Butail's case (supra) the appellant called upon the respondents the Union and the State to produce certain documents.\n\nThe respondents claimed privilege.\n\nThis Court saw the documents and was satisfied that the claim for privilege was not justified.--\n\nIn Sukhdev Singh's case (supra) the majority opinion was given by Gajendragadkar, J. In Amar Chand Butail's case (supl'a) Gagentlragadkar, C.J. spoke for the Court in a unanimous decision.\n\nIn the later cas{: this Court saw the document. In Sukhdev Singh's cMe (supra) this Court said that an enquiry would be made by the Court as to ubjections to produce document. It is said that collateral\n\nevidence could be taken. No oral evidenc1: can be given of the conttnts of documents. . In finding out whether the document is a no:d ous dol'ument which sh~'uld be excluded from production on the z, round that it relates to affairs of State, it :may sometimes be difficult\n\nfN the Court to determine the character of the document without the cciurt seeing it. The subsequent Constitution Bench decision in Amar Chand Butail's case (supra) recognised the power of inspection by the Court of th1: document. -\n\nIn St41J-Divisional Of,'ficer, Miri:apur v. Raja Sri Niwas PrastJd E Smgh(1) this Court in a unanimous Constitution Bench decision asked the Compensation Officer to decide in the light of the decisions of this Court whether the claim for privilege raised by the State Governmc:rtt should be sustained or tllOt. This Court gave directions for filing of\n\nnfl1davits by the heads of the department. This direction was givm1 about 10 years after the State Government had claimed privilege :ln certain proceedings. In the Sub-Divisional Officer; Mirzauur case F\n\n(supra) the respondent filed objections to draft compensation assessment rolls.\n\nCompensation was awarded to the respondent. The State applied for reopening of the objection cases. The respondent asked for production of some documents. The State claimed prMleg:e.\n\nThe District Judge directed that compensation cases should he he:ard by the Sub-Divisional Officer.\n\nThe r1:spondent's application for 'G dis:covery 1 and production was rejected by the Compensation Officer.\n\nThe District Judge there11fter directed that c:ompensation cases should be heard by the Sub-Divisional Officer. The respondent again fikd\n\napplications for discovery and inspection of' these documents.\n\nThe\n\nStae Govemmet again claimed privilege.\n\nThe respondent's apoli cati?n' were re1ected. 1 ei .respondent then filed a petition und1:lr Article 226 of the Constitution for a mandamus to Compensation H ?fficer to bear and determine the applications. The High Ccurt sald\n\n(t) [I~ 2SCR,970,\n\n• B\n\nUi P. STATE v. RAJ NARAIN (Ray, CJ,) 347\n\nthat the assessment rolls had become final and could not be opened.\n\nThis Court on appeal quashed the otµer uf the Sub Divisional Officer whereby the respondent's applications for discovery and production had been rejected and directed the Compensation Officer to decide the matter on a proper affidavit by the State.\n\nOn behalf of the election petit\\oner it was said that the first summons adl:lressed to the Secretary, General Administration required him or an officer authorised by him to give evidence and to produce the documents mentioned therein. The second summons was addressed to the Home Secretary to give evidence on 12 September, 1973.\n\nThe third summons was addresse'cl to the Chief Secretary to give evidence on 12 September, 1973 and to produce certain documents. The first summons, it is said on behalf of the election petitioner, related to the tour programmes of the Prime Minister. l11e elcc:tion petitioner, it is said, wanted the documents for two reasons. First, that these documents would have a bearing on allegations of corrupt practice, viz., exccetling the prescribed limits of election expomcs. The election petitioner's case is that rostrum, loudspeakers, decoration. would be within the expenditure of the candidate. Second, the candi~ date had the assistance of the Gazetted Officer for furthering the prospects of the candidate's election.\n\nOn behalf of the election petitioners it is said that objection was taken with regard to certain documents in the first summons on the ground that these were secret papers of the State, but no objection was taken by an affidavit by the head of the department. With regard to the other documents which the Superintendent of Police was called to produce the contention on behalf of the election petitioner is that the Superintendent of Police is not the hea'd of the department and either the Minister or the Secretary should have affrmed an affidavit.\n\nCounsel n behalf of the election petitioner put in the forefront that it was for the Court to decide whether the disclosure and production of documents by the State would cause prejudice to public interest or whether non-disclosure of documents wouhl cause harm to the interest of the subject and to the public interest that justice should be\n\ndone between litigating parties.\n\nThis submissi<Jn was amplilkd by counsel for the election petitioner by submitting that it had . to be found out at what stage and it what manner privilege was to be claimed\n\nancl in what circumstances the Court could look into the document to determine the valitlity of the claim to privilege raised under section\n\n123. The other contention on behalf of the election petitioner was that if a part of the document was made tmblic bv lawful custndian of the document the qu,,.tion was whether the document could still be tearded ac: an unnublic:hed document.\n\nTt was also said if there was a Jon2 document and if nart~ thereof were noxious and thPr,,.fore priviJeqecl whetlier the innocuous flart could still be brought on the record of the lith?ation.\n\n648 SUPILEME COURT REPOlU~. [1975] 3 s.c.R ..\n\nCounsel for the election. petitioner leaned. heavily on the decisi1:m in t:onway v. Rimmer & Anr .. (supra) that the Court is to balaD.ce the rival interests of disdos, ure and non-disclosure.\n\n'fhe tirst question which falls for decision is whether . the learned Judge was right in holding that privilege was not claimed by filing an affidavit at the first instance. Counsel on behalf of the election petitioner submitted that in a case in which evidence is sought to be led in respect of matters dtrived from unpublished records relating to affairs of State at a stage of the proceedings when the head of tlile department has not come into picture and has not ha; d an opportunity of exercising discretion under section 123 to claim privilege it will be the duty of the court to give effect to section 123 and prevent evid11nce being led till the head of the department has had the opportunity of claiming privilege. But in 1;:asejn which documents are surn- moned, it is said by counsel for the election petitioner, the opportunity of claiming privilege in a legal manner has already been furnish1:tl when summons is received by the head of the department and if he does not claim privilege the court is under no legal duty to ask him or to give him another cippartunity.\n\n'file documents in m.pect of which exclusion from production is claimed are the blue book being rules and instructions for the protection of the Prime Minister when on tour and in travel. Saxena came to court and gave evidence that the blue book was a 'document relating to the affairs of State and was not to be disclosed.\n\nThe SecretaX'y filed an aflidavit on 20 September, 1973 and claimed privilege .in respect of the blue book by submitting that the document related 10 E affairs of State and should, therefore, be excluded from production.\n\nThe several decisions to which reference has already been made establish that the foundation of the law behind sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed woul'd injure public and national F interest.\n\nPublic interest which demands that evidence be withheld is to be weighed against the: public interest in the administration of justice that courti; should have the fullest possible access to all relc>- vant materials. Wh!:n public interest outweigh's the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in G public interest that con£Uentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents Confidentiality is not a head of privilege.\n\nIt is a consideration to bear in mind.\n\nIt is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents woultl be of class which demand protection. (See .\n\nRogers v. Home Serretarv (supra) at p. 405). To illustrate the class H of documents would embrac1e Cabinet papers, Foreign Office dispatches. papers regarding the securitv to the State and high level interoepartmental minutes.\n\nIn the ultimate analysis the content~ of the\n\nU. P. STATE V. RAJ NARAIN (Ray, C.J.) 349\n\ndocument are so described that it could be seen at once that in the public interest the documents are to be withheld. (See Merricks and Anr. v. Nott Bower & Anr.(1).\n\nIt is oow the well settle\\'.! practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also reauire a Minister to affirm an affidavit.\n\nThat will arise in the course of the enauiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evide, nce that the document should be protected in pubiic interest from prodt1Ction the matter ends there. If the Court would yet like to .tisfy itself the Court may see the document.\n\nThis will be the inspection of the document by the Court. Objection as to production as well as ad_missibility contemplated in section 162 of the Evidence Act is tlecided by the Court in the enquiry as explained by this Court ill Sukhdev Singh's case (supra).\n\nll1 the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September. J 973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the first instance.\n\nThis Court has said that where no affidavit was filed an affidavit catlid be directed to be filed later on.\n\nThe Grosvenor Hotel, London gruup of cases (supra) in England shows that if an affidavit is defective an opportullity can be given to file a better affidavit. lt is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court call direct further affidavit in that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document the Court may do so.\n\nThe next question is whether the learned Judge was right in holding that the blue book is not an unpublished official record. On behalf of the election petitioner, it was said that a part of the document was published by the Government, viz., paragraph 71(6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. in the Ca111mell Laird case, it was said that though some of the papers\n\nhall been produced before the Tribunal of Enquiry and though referancc wa~ made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given. One is that special precaution may have been taken to avoid public injury and the other is that p.1rtions of the Tribunal's sittings may have been secret. ln the ''rcse1t case, it cannot be said that the blue hook is a published dt)CL1me11t.\n\nAny publication of oarts of the blue book \\ich may be described the innocuou~ part of the document will not render the entire docu:nent a published one.\n\n(1)- [t964i-1-A:\"E il--111.\n\n8--423SCJ 75\n\nFor these reasons, the judgment. of the High Court is set asilde.\n\nThe lear, ned judge will consider the affidavit afirmed by R. K. Kaul.\n\nThe learned Judge will give an opportunity to the head of the department to file. affidavit in respect of the documents summonded to be produceid by the Superintendent of Police. The learned Judge will consider the affidavits. If the learned Judge will be satisfied on the affidavits that the documents require protection from production, the matter wil! end there. If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himseli about the\n\nnal nature of the documents, the learned Judge . will be pleased to inspect the sam<~ and pass appropriate orders thereafter. If the Court will find on inspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided that would not give a distorted or misleading impression. Where the Court orders discllosure of an innocuous; part as aforesaid the Court should seal up the other parts which are i; aid to be noxious because their disclosure would be unde.sirable.\n\nParties will pay and bear their own costs.\n\nMATHEW, J. During thi) frial of the election petition filed by res pondent No. 1 against respondent No. 2, respondent No. 1 applied to the Court for summons to the Secretary, (]eneral Administration 11.nd the Chief Secretary, Government of U.P. and the Head Clerk, Oftice of the Superintendent of Pc>lice, Rai Bareily, for production of certain documents. In pursuance to summons issued to th'~ Secretary, GenE:ral Administration and the Chief Secretary, Government of U.P., Mr. S. S.\n\nSaxena appeared in court with the documents and objected to produce:\n\n( 1 ) A blue book entitled\n\n11Rules and Instructions for the Protection of Prime Minister when on tour or in travel; ·\n\n(2) Correspondence exchanged between the two govemmen.ts viz., the Government of India and the Government of UJ>. in regard to the police arrangements for the meetings of the Prime Minister; and\n\n( 3) Correspodence exchanged between the Chief Minis- G ter, U.P. and the Prime Minister in regard to police arrangements for the meetings of the latter;\n\nwithout ti.Jin~ an affidavit of the Minister concerned or of the head of the department.\n\nSaxena was examined by Court on 10-9-1973. The 1st r.espondrnt filed an application on that day praying that as\n\nu. p, STATE v. RAJ NARAIN (Mathew, J.) 351 . no privilege was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-9-1973 that the application be put up for disposal. As Saxena's examination was not over on 10-9-1973, the Court kept the documents in a sealed cover stating that in case the claim for privilege was sustained, Saxena would be informed so that he could take back the documents. Examination of Saxena was over on 12-9-1973. On that day, the Superintendent of Police, Rai Bareily, filed an affidavit claiming privilege in respect of the documents summoned from his office. The Court adjournetl the argument in regard to privilege and directed that it be he;_ird the next day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was. again adjourned to 20·9-1973. On 20·9~1973, Saxena filed in Court an application and the Home Secretary to th.e Government of U.P., Shri R: K. Kaul, the head of the depar1ment in question an affidavit claiming privilege for the documents. The argument was concluded on 14-3·1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege.\n\nThis appeal, by special leave, is against that order,\n\nThe first question for consideration is whether the privilege was lost as no affidavit sworn by the Minister in! charge or the Head of the Department claiming privilege was , filed in the first instance.\n\n111 State of Pun/ab v. Sodhi Sukhdev Singh (1) this Court held that the normal procedure to be followed when an officer is summoned as witness to produce a document and whett he takes a plea of privilege, is, for the Minister in charge or the head of the department concerned to file an affidavit showing that he had read and considered the docu\n\nment in respect of which privilege is claimed and containi11g the general nature of the document and the particular dangel' to which the State would be exposed by its disclosure.\n\nAccording to the Court, this was required as a guarantee that fhe statement of the Minister or the head of the department which the Court is asked to accept is one that has not been expressed casually or lightly or asa matter of depart mental routine, but is one put forward with the solemnity necessarily attaching to a sworn statement.\n\nIn response to the summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Saxena was deputed to take the documenW! summoned to the Court and he stated in his evidence that he could not file the blue book as it was marked 'secret' and as )le was not permitted by the Home Secretary to produce it in Court. As no affidavit of the Minister or of the Head of the Department was filed claiming privilege under s. 123 of the Evidence Act in the first instance, the Court said that the privilege was lost and the affidavit filed on 20~9-1973 by Shri R. K. Kaul, Home Secre tary, claiming privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South Australia(2) where their Lord\n\nships of the Privy Council said that it would be contrary to the public\n\n(1) (1961] 2 SC R 371.\n\n(2) A IR 1931 PC 254,\n\ninterest to deprive the state of a further opportunity of regularising it~ claim for protection by producing an affidavit of the description already indicated by saying that these observations have no application as, no affidavit, albeit defective, was filed in this case in the first instance. The Court further observed that it was only when a proper affidavit claiming privilege was filed that the Court has to find whether :the document related to unpublished official record of affairs of State, that a duty was cast on the Minister to claim privilege and that, that duty could not be performed by Court, nor would the Court be justi· filed in suo motu ordering that the document should be disclosed. Th•~\n\nCourt then quoted a pa:ssage from the decision of this Court in Sodhi Sukhdev Singh' s case (supra) to the effect that court has no power to hold an enquiry into the possible injury to the public interest which may :result from the disclosure of the document as that is n matter for the authority concerned to decide but that the court is competent and in deed bound to hold a preliminary enquiry and determine the validity i0f the objection and that necessarily involves an enquiry into the question whether the document relates to an affair of state under s. 123 or not.\n\nThe second ground on which the learned judge held that no privilege could bf: claimed in respect of the Blue Book was that since :Portions of it had in fact been published, it was not an unpublished official record relating to affairs of state. He relied upon three circumstances to show that portions of the Blue Book were published.\n\nFirstly. the Union Government had referred to a portion of it (Rule 71/6) in an affidavit filed in Court. Secondly, respondent No. 2 had obtained a portion of the Blue Book (Rule 71/6) and had produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred to this particular rule in Parliament.\n\nThe learned Judge,, however, did not consider or decide whether the Blue Book related to any affair of state, perhaps, in view of' his conclusion that it was not an unpublished official record.\n\nSection 123 of the Evidence Act states :\n\n\"No one shall be permitted to give any evidence derived from unpublished ollicial records relating to any affairs of state, exc1pt with the . permission of the Officer at the head of the department concerned, who shall give or withhold such permission as }1e thinks fit.\"\n\nSection 162 of the Evidence Act provides that when a witness brings to court a document in pursuance to summons and raises an objection to its production or admissibility, the Court has to determine the validity of the: objection to the production or admissibility and, for so doing, the court can inspect the document except in the case of a document relating to affairs of state or, take such other evidence as may be n?cessary to determine its admissibility.\n\n<.:\n\nu. p. STATE v. RAJ NARAIN (Mathew, J,) 353\n\nHaving regard to the view of the High Court that since the privilege was not claimed in the first instance by an affidavit of the Minister or of the had. oi the department concerned, the privilege could not thereafter be asserted and that no inquiry into the question whether the disclosure of the document would injure public interest can be conducted by the court when privilege is claimed, it is necessary to see the scope of s. 123 and s. 162 of the Evidence Act.\n\nThe ancient proposition that the public has a right to every man's evidence has been reiterated by the Supreme Court of U.S.A. in its recent decision in United States v. Nixon. This duty and its equal applic.ation to the executive has never been doubted except in cases where it can legitimately claim that the evidence in its possession relates to secret affairs of state and cannot be disclosed without injury to public interest.\n\nThe foundation of the so-called privilege is that the inforurntion cannot be disclosed without injury to public interest and not that the document is confidential or official which alone is no reason for its non-production( 1).\n\nIn Durcan1 v. Cammel Lavid & Co.( 2) Lord Simon said that withholding of documents on the ground that their publication would be contrary to the public interest is not prop.erly to be regarded as a branch of the law of privilege connected with discovery\n\nand that 'Crown privilege' is, for this reason, not a happy expression.\n\nPealing with the topics of exclusion of evidence on the ground of 'state interest', Cross says that this head of exclusion of evidence differs from privilege, as privilege can be waived, but that an objection on the score of public policy must be taken by the Judge if it is not raised by the parties or the Crown. (8)\n\nPhipson deals with the topic under the general category \"Evidence excluded by public policy\". He then lists as an entirely separate category: \"Facts excluded by privilege\" and deals there with the subject of legal professional communication, matrimonial communication, etc., topics dealt with by sections 124-131 of the Evidence Act( 4).\n\nA privilege normally belongs to the parties and can be waived.\n\nBut where a fact is excluded from evidence by considerations of public policy, there is no power to waive in th eparties see in this connection Murlidhar Aggarwal v. State of U.P. (5).\n\nLord Reid in Beg v. Lewas( 0 ) said that the expression 'Crown privilege is wrong and may be misleading and that there is no queston of any privilege in the ordinary sense of the word, as the real question is whether the public interest requires that a document shall not be produced and, whether the public interest is so strong as to oYcrride\n\n(I) see Asiatic Petroieum Company Ltd. v Anglo Persian Oil Co. [1916] I KB 822, at 830; and Comva.v v Rimmer (1968) 1 A\\l ER 874, at 899.\n\n(2) [1942] A' C 624.\n\n(3) \"Evidence\", 3rd eel p 251.\n\n(4) \"see Phipson on Evidence\"\n\n(5) [1974] 2 g, C C 472, at 483.\n\n(6) [19731 A C at 388.\n\nthe ordinary ri.!(ht and interest of a litigant that he shall be able: to lay before a court of justic1~ all relevant evidence. In the same casi:., Lord Pearson observed that the expression 'Crown privilege' is not accurate, though sometimes convenient. Lord Simon of Claisdale observed in that case :\n\n\" ... 'Crown privilege' is a misnomer and apt to be misleading. It refors to the rule that certain evidence is inadmissible on the ground that its adduction would be contrary to the public intercs~ .... It is not a privilege which may be waived by th_<; Crown (see Marks v. Bayfus, 25 Q.B.D. 494 at p. 500) or by anyone else. The Crown has prerogatives, not privilege.\"\n\nI am not quite sure whether, in this area, there was any antithesis between prerogatives arid privilege. I think the source of this privilege was the prerogatives of the Crown.\n\n\"The source of the Crown's privilege in relation to production of documents in a suit between subject and subject\n\n(whether production is sought from a party or from some other) can, no doubt, be traced to the prerogative right lo prevent the disclosure of State secrets, or even of preventing the escape of inconvenient intelligence regarding Court intrigue. As is pointed out in Pollock and Maitland's History of English Law (2nd ed .. , Vol. I, p. 517), \"the King has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the King disseises A and transfers thei land to X, then X when he is sued will say that he cannot answer Without the King, and the action will be stayed until the King orders that it shall proceed.\" We find similar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries. In the report of Layer's Case (1722), (16 How St. Tr. p. 294) the Attorney General claimed that minutes of the Lords of the Council should not be produced; and Sir John Pratt L.C.J. supported the claim, additing that \"it would be for the disservice of the 1Gng fo have these things disclosed\". We recall Coke's useful principle : Nihil quod inconvenience est\n\n/icitum. It is true that in the preceding century the privileg,:i was not upheld 1ither in Stratford's case (1640) 3 How, St.\n\nTr. 1382, or in the case of Seven Bishops (1638) 12 How.\n\nSt. Tr. 18 3, bu~ these dedsions were made in peculiar cir .. cumstances.\"\n\n[see \"Documents Privileged in Public Interest\"(!)]\n\nBut, with the growth of democratic government, the interest of the Crown in these matte:rs developed into and became identified with H public interest.\n\n(J) 39 Law Quarterly Rev. 476, at pp 476-477.\n\nu. p, STATE v. RAJ NARAIN (Matew, /,) 355\n\n\" .. In the. early days of the nineteenth century, when princi_ples _of 'public policy' received broad and generous interpretation.. . . . we find the privilege of docup:ients recognized on the ground of public interest. At this date, public policy and the interest of the public were to all intents synonymous\".\n\n [see \"Documents' Privileged in Public Interests\" (supra)].\n\nThe rule that the interest of the state must , not be put in jeopardy by producing documents which would injure it is in principle quite unconnected with the interests or claims of particular parties in litigation and indeed, it it a matter on which the judge should, if, necessary, insist, even though no objection is taken at all. This would show how remote the rule is from the branch of jurisprudence relating to discovery of documents or even to privilege(').\n\nSo the mere fact that Saxena brought the documents to court in pursuance to the summons and did not file an affidavit of the Minister Qr of the head of the department concerned claimh1g {lrivilege would not mean that the right to object to any evidence derived from an: unpublished official record relating to affair of state has been for ever wawed.\n\nAs no affidavit of the Minister or of the head of the department claiming privilege had been: filed, it might be that a legitimate inteference could be made that the Minister or the head of the department concerned permitted the production of the document or evidence being given derived from it, if t}lere was no other circumstance. But, Saxena stated that the Blue Book was a secret document and be had not been permitted by the head of the department to produce it.\n\nThough that statement was not really an objection to the production of the document which could be taken cognizance of by the court under s. 162 of the Evidence Act, it was an intimation to the Court that the head of the department had not permitted the production of the document in Court or evidence. derived from it being given. What~ ever else the statement might indicate, it does not indicate that the head of the department had permitted the production or the disclosure of the document. In other words, from the statement of Saxena that the document was a 'secret' one and that he was not permitted to produce it in court, it is impossible to infer that the Minister or the head of the department had permitted the documnt to be produced in court or evidence derived from it being given. Section 123 enjoins upon the court the duty to see t, hat no one is permitted to give any evidence derived from unpublished official records relating to affairs of state U!Jless perm)tted by the officer at the head of the department.\n\nThe court, therefore, had a duty, if the Blue Book related to secret affairs of state, not to permit evidence derived from it being given.\n\nAnd, in fact, the Court did not allow the production of the document, for, we find a note in the proceed\\ngs of the Court on 10-9-1973 .stating that the \"question about the production of this document in Court shall be decided after argumi;!nt of the parties on the point is finally\n\n(1) see : J.K.S. Simon, \"Evidence Excluded by Consideration of State Interest\",\n\n(1955) Cambridge ~L Journal, 62.\n\nheard\".\n\nAnd before the arguments were finally concluded,, Kaul, the officer at the head of the department, filed an affidavit clairiling privilege.\n\nAs the privilege could not have been waived, and as, before the objection to the production of the document raise:d by Saxena-whether tenable in Jaw or not--was decided by the Court, an affidavit was filed by Kaul objecting to the production of the document and stating that the document in question rel11ted to secret affair& of state, the Court should have considered the validity of that ob.iection under s. 162 of the Evidence Act.\n\nIn Crompton Ltd. v. Customs & Excise Comrs. (C.A.)(1), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it and that the judge himself must take the objection if it appears to him that the production of the document would be injurious to public interest.\n\nIn Copway v. Binger & Another(2) it was observed :\n\n''J do not doubt that it is proper to prevent the use <:Jf any document, wherever it comes from, if disclosur~ of its contents would really injure the national interest and I do not doubt that it is proper to prevent any witness whoever he may be, from disclosing facts which in the national interest ought not to be disclosed.\n\nMoreover, it is the duty of the court to do this without the intervention of any Minister, if possible serious injury to the national interest is really apparent.\n\n\"I do not accept that in so important a matter, it could properly play ab<2U! with formalities or regard itself as entering forbidden territory merely because a door had not been formally Jocked.\"\n\nThe question then arises as to what exactly is the meaning of the expression \"affairs of state\".\n\nAccording to Phipson( 8), witnesses may not be asked, and will not be allowed, to state facts or to produce documents the disclosure of which would be prejudicial to the public service, and this exclusion is not confined to official communications or documents, but extends to alJ others likely to prejudice the public interest, even when relating to commercial matters.\n\nHe thinks that it is the duty of the court to prevent disclosure of facts where serious injury to the national interest would possibly be caused. that in deciding whether a claim for Crown privilege should apply to a document, there are two kinds of public interest to be considered by the court, and they are : ( 1) the public interest that harm shall not be done to the nation or the public service; and (2) the publia interest that the administration of justice shalJ bot be frustrated by the withholding of documents which must be produced if justice is to be done; and that if a judge decided that, on balance, the\n\n- ---\n\n(1) (1972) 2 Q.B 102, at 134.\n\n(2) [1968]\n\nA.C.. 910.\n\n(j) \"Phipson on Evidence'', 11th ed. p. 240.\n\n,,.\n\nu. P. STATE v. RAJ NARAIN (Mathew, I.) 357\n\ndocuments probably ought to be produced, it would generally be best that he hould see them before ordering production. .\n\nCross says(') that relevant evidence must be excluded if its reception would be contrary to state interest; but \"state interest\" is an ominouly vague expression and it is necessary to turn to the decided cases in order to ascertain the extent to which this objection to the reception of relevant evidence has been taken.\n\nAccording to him, broadly speaking, the decisiOns fall under two heads-those in which evidence has been excluded because its disclosure would be injurious to national security (an expression which may be taken to include national defence and good diplomatic relations), and those in which evidence has been excluded because its reception would be injurious to some. other natio- . nal interest and that although the first group of decisions has not excited much comment, some of the cases included in the second may be thought to indicate an excessive concern for unnecessary secrecy.\n\nIn Sodhi Sukhdev Sjngh's case (supra) this Court held that there are three views possible on the matter. The first view is tbat it is the head of the department who decides to which class the document belongs. lf he comes to the conclusion that the document is innocent, he can give permission to its production. If, however, he comes to the conclusion that the document is noxious, he will withhold that peI1Dission. In any case, the Court does not materially come nto the picture.\n\nThe second view is that it is for the court to determine the character of the document and if necessary to enquire into the possible consequence of its disclosure. On this view, the jurisdiction of the court is . very much wider. A third view which does not accept either of the two extreme positions would be that the court can determine the character of the document and if it comes to the conclusion that the document belongs to tM noxious class, it may leave it to the head of the department to decide whether its production should be permitted or not, for,· it is not the policy of s. 123 that n the case of every noxious document the head of the department must always withhold permission.\n\nThe Court seems to have accepted the third view as the correct one and has said : \"Thus, our conclusion is that reading ss. 123 and 162 together the urt cannot hold an enquiry into the possible injury to public)nterest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affairs of State under s. 123 or not.\" As it was held in that case that the Court has no power to inspect the document, it is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest, that a document is one relating to affairs of state as, ex hypothesi, a document can relate to affairs of state only if its disclosure will injure public interest. It might be that there are certain classes of documents which are per se noxious in the sense\n\n(1) \"Evidence\" 3rd ed , p. 252.\n\n, chat, without conducting an enquiry, it might be possible to say that by virtue of their charach:r their disclosure would be injurious to public mterest. But there an: other documents which do not belong to the noxious class and yet their disclosure would be injurious to public interest.\n\nThe enquiry to be conducted under s. 162 is an enquiry into che validity of the ob}ection that the document is an unpublished official record relaing to affairs of state and therefore, permission to give evidence derived from it is declined.\n\nThe objection would be that the document relates to secret affairs of state and its disclosure cannot be permitted; for,. why should the officer at the head of the department raise an objection to the production of a document if he is prepared to permit its disclosure even though it relate~ to secret affairs of state ? Section 162 visualises an enquiry into that objection and empowers the court to take evidence for deciding whether the objection is valid.\n\nThe court, therefore, has to consider two things; whether the document relates to secret affairs of state; and whether the refusal to permit evidence derived from it being given was in the public interest.\n\nNo cloubt, the words used in s. 123 'as he thinks fit\" confer an absolute discretion on the head of the department to give or withhold such permission. As\n\nI said, it is only if the officer refuses to permit the disclosure of a document that any question can arise in a court and then s. 162 of the Evidence Act will govern the situation.\n\nAn overriding power in express terms is conferred on the court under s. 162 to decide finally on the validity of the objection.\n\nThe court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of state or that the public interest does not compel its non-disclosure or that the public interest served by the admmistration of justice in a particular case overrides all other aspects of public interest.\n\nThi& conclusion flows from the fact that in the first part of s. 162 of the Evidence Act there is no limitation on the scope of the court's decision, though in the second part, the mode of enquiry is hedged in by .conditions. It 1s, therefore, clear that even though the head of the department has refused to grant permission, it is open to the court to go into the question after examining the documert and find out whether the disc:losure of the document would be injurious to public interest and the expression \"as he thinks fit\" in the latter part of section 123 need not deter the court from deciding the question afresh as s. 162 authorist::s the court to determine the validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh's case).\n\n1t is rather difficult to understand, after a court has inquired into the objection and found that disclosure of the ducument would be injurious to public ir1tere:st, what purpose would be served by reserving to the head of the department the power to permit its disclosure because, the question to be decided by him would practically be the same, namely, whether the disclosure of the document would be injurious to public Interest-a question already decided by the court.\n\nIn other words, if injury to public interest is the foundation of this so-called privilege, when once the court has enquired into the question and found that the disclosure of the document will injure public interest and tperefore it is a document relating to affairs of state, it would be a futile exercise for the Minister or the head of the department to consider and decide whether its disclosure should be permitted as he would be making an\n\n'•I,\n\nI j\n\nu. p, STATE v. RAJ NARAIN (Mathew, J.) 359\n\nenquiry into the identical question, It is difficult to imagine that a head of the department would take the responsibility to come to a conclusion different from that arrived at by a court as regards the effect of the disclosure of the document on public interest unless he has or can have a different concept of public interest.\n\nFew would question the necessity of the rule to exclude that which would cause serious prejudice to the state.\n\nWhen a question of national security is involved, the court may not be the proper forum to weigh the matter and ihat 1s the reason why a Minister's certificate is taken as conclusive. \"Those who are responsible for the national security must be the sole judges of what national security requires\"( 1). As the axecutive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters.\n\nTherefore, documents in relation to these matters might fall into a class which per se might require protection. But the executive is not the organ solely responsible for public interest. It represents only an important element in it; but there are other elements.\n\nOne such element is the administration of justice.\n\nThe claim of the executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the executive alone knows what is best for the citizen.\n\nThe claim of the executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusive1y from a nar-· row departmental angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done.\n\nWhen there are more aspects of public interest to be considered,. the court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.\n\nThe power reserved to the court is a power to order productioac even though public interest is to some exnt prejudicially affected.\n\nThis amounts to a recognition that more thalll one aspects of public interest will have to be surveyed. The interests of government for which the Minister speaks do not exhaust the whole public interest.\n\nAnother aspect of that interest is seen in the need for impartial administration of justice. It seems reasonable to assume that a court is better qualified than the Minister to measure the importance of the public interest in the case before it.\n\nThe court has to make an assessment of the relative claims of these different aspect of public interest..\n\nWhile there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive an exclusive power to determine what matters may affect public interest. Once considerations of national security are left out, there are few matters of public inlterest which cannot safely be discussed in public. The administration itself knows of many classes of security documents ranging from those merely reserved for official use to those which can be seen only by a handful of Ministers of officials bound by oath of secrecy.\n\nAccording to Wigmore, the extent to which this privilege has gone beyond \"secrets of State\" in the military or international sense is by -------- - / ( I) Lord Parker Of Weddington in The Zemora [1916] 2 AC 77, at 107.\n\nno means clearly defined and therefore its scope and bearing are open\n\nt~ ca!eful examintion in the light of logic and policy. According to him, m a comm, umty under a system of representative government, tl1ere can be only few facts which require to be kept secret with that solidity which defies even the inquiry of courts of justice. ( 1) ·\n\nIn a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets.\n\nThe people of this country have a right to know every public act, everything, that is done in a public way.. by their public functionaries.\n\nThey are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the c:oncept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for trnnsactions which c:an, at any rate, have no repercussion on public sf:curity(2). To cover with veil secrecy the common routine business_, is not in the interest of the pblic. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or pernonal self-interest or bureaucratic routine.\n\nThe responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.\n\n\"Whether it is the relations of the. Treasury to the Stock Exchange, or the dealings of the Interior Department with public lands, the facts must constitutionally be demandable, sooner or lat<r, on the fiO'Or of Congress.\n\nTo concede to them a sacrosanct secrecy in a court of justice is to attribute to them a character which for other purposes is never maintained a character which appearn to .have been advanced only when it happens to have served some undisclosed interest to obstruct investigation- '.nto facts which might reveal a Iiability(S)\" To j, ustify a privilege, secrecy must be indispensable to in<luce freedom\n\nof official communication or efficiency in the transaction of official business and it must be further a secrecy which has remained or would\n\nhave remained inviolable but for the cQmpulsory disclosure.\n\nTn how many transactions of official business is there ordinarily such a secre:cy?\n\nIf there arises at any time a genuine instance of such otherwise inviolate secrecy, let the necessity of maintaining it be determined on its merits(4).\n\nLord Blanesburgh said in Robinson v. State of South Australia(4), the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannot be disclosed without injury\n\nto the public interests and not that the documents are confidential or <>fficial which alone is no reason for their non-production. He further said that in view of the increasing extention of state activities into spheres of trading, business and commerce, and of the claim of privilege: in\n\n---(t)s~ \"Evi~J;.d ect. vol s, p 788.\n\n(2) sec New York Timu Co V. U11lted States, 29 L Ed 822, 403 US 713.\n\n(3) sec \"Wigmore on Evidence\", 3rd ed, Vol 8, page 790.\n\n(4) [1931] A. C. 704 at 798.\n\nl / .··\"'\n\nU.P. STATE v; RAJ NARAIN (Mathew, J.) 361\n\nrelation to lia_bilities arising therefrom, the courts must duly safeguard genuine public interests and that they must see to it that the scope of the admitted privilege is not extended in such litigation.\n\nThere was some controversy as to whether the court can inspect the document for the purpose of coming to .the conclusion whether the document relates to affairs of state. In Sodhi Sukhdev Singh's case, this Court has said that the court has no power to inspect the document. In the subsequent case (Amar Chand Butail v. Union of India and Others (1), this Court held that the normal method of claiming privilege was by an affidavit sworn by the head of the department and t\\iat, if no proper affidavit was filed, the claim for privilege was liable to be rejected. But, this Court inspected the document to see whether it related to affairs of state. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the court did exercise the power to inspect the document.\n\nfo England, it is now settled by 1thc . decision in Conway v.\n\nRimmere) that there is residual power in court to decide whether the disclosure of a document is in the interest of the public and for that purpose, if necessary, !to inspect the document, and that the statement of the head of the department that the disclosure would injure public interest is not final. .\n\nJn Robinson's case, (Supra) the Privy Council took the view that the court has power to inspect the Clocument in order to decide the question whether it belongs to one category or the other.\n\nIt is also noteworthy that Lord Denning, M. R. in his dissenting juc!gment in the Court of Appeal in Conway v. Rimmer has referred to the decision in Amar Chand Butail v. Union of India and Others\n\n(supra) and said that the Supreme Court of Jndiaalso has come round to the view that there is a residual power in the court to inspect a document to decide whether its production in court or disclosure would be injurious to public interest.\n\nProbably the only circumstances in which a court will not insist on - inspection of the document is that stated by Vinson, C. J. in United States v. Revnolds(B) :\n\n\"Regardless of how it is articulated, some like formula of compromise must be applied here.\n\nJudicial control over evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the cl'aim of privilege will be accepted in aDfY case. It may be possible to satisfy the court from all the circumstances of the case, that there is a reasonable danger that compulsion of evidence will expose military _ matters which, in the interest of national security, should not be divulged.\n\nWhen this is the case, the occasion for the privilege ---------·\n\n(1) A I R 1964 SC 1658.\n\n(2) [1968] l All E R 874.\n\n(3) [1952] 345 US l.\n\nis appropriate, and the court should not jeopardize the securiy which the privilege is meant to. protect by insisting upon an examination of the evidence, even by the judge alone in chambers.\"\n\nI do not think that there is much substance in the contention that since the Blue Book had been published in parts, it must be de1::med\n\nto have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state. If some parts of the document which are innocuous have been published, it does not follow that the whole document has been published. No authority has been cited for the proposition that if a severable and innocuous portion of a document is published, the <mtire document shall be de<:med to have been published for the purpose of s. 123.\n\nIn regard to the claim of privilege for the document summoned from the offic1~ of the Superintendent of Police, Rai Bareily, the High Court has only said that all the instructions contained in the file produced by the Superintendent of Police were the same as those contained in the Blue Book and since no previlege in respect of the Blue Book could be claimed, the Superintendent of Police could not daim any privilege in respect of those documents. It is difficult to understand how the High Court got the idea that the papers brought from .the office of the Superintendent of Police contained only instructions or materials taken from the Blue Book. Since the court did not inspect the Blue Book, the statement by the court that the !llaterials contained in the file produced by the Superinter.dent of Police were .taken from the Blue. Book was not warranted.\n\nI am not satisfied that a mere label given to a document by the . executive is conclusive in respect of the question whether it relates to .affairs of state or not. If the disclosure of the contents of the document would not damage public interest, the ex<:cutive ca1 not label it in such a manner as to bring it within the class of documents which are normally entitled to protection.\n\nNo doubt, \"the very description of the documents in the class may suffice sometimes to show that they should not be produced such us Cabinet papers\" (see per Lord Danniag, M.R. in In r1i Grosvenor Hotel, London (No. 2) (I). Harman, L. J. said(2 ) in that case : \"the appellants' real point is t!i.at since Duncan's Case( 8 ) theire has grown up a practice to lump documents together and treat them as a class for which privilege is claimed and that this depends on dicta pronounced on what is really a dif[erent subject-matter which are not binding on the court and are wrong.\"\n\nIn Conway v. Rimmer(4 ) Lord Reid said : \"I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content ma~ be\" and referred to cabinet minutes as\n\n\"elonging to t~~!s8. Lord Upjohn said( 5) : \" ••• if privilege is\n\n(1) [1965) l Ch 1210, at 1246,\n\n(2) ibid at p 1248.\n\n(3) [1948] A: C: 624,\n\n(4) [1968] 1 All E R 874, at 888.\n\n(5) ibid at P? 915.\n\n.. A\n\nJ H\n\nU.P. STATE v. RAJ NARAIN (Mathew, J.) 363\n\nclaimed for a document on the ground of 'class' the judge, if he feels any doubt about the reason for its inclusion as a class document, should not hesitate to call for its production for his private inspection, and to order and limit its production if he thinh fit.\" In the same case Lord Hodson said ( 1) : \"I do not regard the classification which places all documents under the heading either of contents or class to be wholly satisfactory. The plans of warships, as in Duncan's case and documents exemplified by cabinet minutes are to be treated I . ' thmk, as cases to which Crow~ privilege can be properly applied as a class without the necessity of the documents being considered individually.\n\nThe documents in this case, class documents though they may be, are in a different category, seeking p!'otection, not as State documents of political or strategic importance, but as requiring protection on the ground that 'candour' must be ensured.\"\n\nI would set aside the order of the High Court and direct it to consider the !Jlatter afresh. The High Court will have to consider the question whether the documents in respect of which privilege had been claimed by Mr. R. K. Kaul, Home Secretary and the Superintendent of Police relate to affairs of state and whether public interest would be injuriously affected by their disclosure.\n\nIf the averments in the affidavits are not full or complete, the court will be at liberty to call for further affidavits.\n\nIf, on the basis of the averments in the at::l.davits, the court is satisfied that the Blue Book belongs to a class of documents, like the minutes of the proceed\n\nings of the cabinet, which is per se entitled to protection, no further question will arise in respect of that document.\n\nIn such case, no question _of inspection of that document by court will also arise. If, however, the court is not satisfied that the Blue Book does not belong to that class and that averments in the affidavits and the evidence adduced are not sufficient to enable the Court to make up its mind that its disclosure will injure public interest, it will be open to the court to inspect the document for deciding the question whether it relates to affairs of state and that its disclosure will injure public interest. Jn respect of the other documents, the court will be at liberty to inspect them, if on the averments in the affidavits or other evidence, it is not able to come to a conclusion that they relate to affairs of state or not.\n\nIf, on inspection, the court holds that any part of the Blue Book or other document does not relate to affairs of state and that its disclosure would not injure public interest, the court will be free to\n\n(1) ibid at p. 905.\n\ndisclose that part and uphold the objection as regards the rest provided that this will not give a misleading impression. Lord Pearce said in Conway v. Rimmer(!):\n\n\"If part of a document is innocuous but part is of such a nature that its disclosure would be undesirable, it should seal up the fatter part and order discovery of the rest, provided that this will not give a distorted or misleading impress.ion.\"\n\nThe principle of the rul1e of non-disclosure of records relating to affairs of state is the concern for public interest and the rule will be applied no further than the attainment of that objective requires ( 2) •\n\nI would allow the appeal.\n\nP.B.R.\n\n(1) [1968] I All E.R. 874,. at 91 l.\n\n(2) see Taylor on Evidence, p. 939.\n\nAppeal allowed.", "total_entities": 201, "entities": [{"text": "STATE OF U", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "RAJ NARAIN & ORS", "label": "RESPONDENT", "start_char": 15, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "RAJ NARAIN & ORS", "offset_not_found": false}}, {"text": "January 24, 1975", "label": "DATE", "start_char": 34, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "January 24, 1975 [A. N. RAY, c. J., K. K. MATHEW, A. ALAG!RISWAMI; R. s. SARKARIA, B\n\nAND N. L. UNTWALIA, JJ.]"}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 52, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "A. N. RAY", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 70, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "K. K.\n\nMathew", "offset_not_found": false}}, {"text": "R. s. SARKARIA", "label": "JUDGE", "start_char": 101, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "R. s. SARKARIA", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 124, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "N. L. UNTWALIA, JJ.", "offset_not_found": false}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 146, "end_char": 165, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 123 and 162", "label": "PROVISION", "start_char": 167, "end_char": 182, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "Section 123", "label": "PROVISION", "start_char": 197, "end_char": 208, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "Section 162", "label": "PROVISION", "start_char": 506, "end_char": 517, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "Government of India", "label": "ORG", "start_char": 1432, "end_char": 1451, "source": "ner", "metadata": {"in_sentence": "General Administration and Chief Secretary of the State Government and thelieadclerk of the office of the Superintendent of Police of the District for the production of the Blue Book en titled \"rules and instructions for the protection of the Prime Minister when on tour or in travel\", and certain other correspondence exchanged between the Government of India and the State Government in that connection."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 1683, "end_char": 1689, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 2464, "end_char": 2470, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 2571, "end_char": 2576, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 3228, "end_char": 3238, "source": "ner", "metadata": {"in_sentence": "State becnuse the Union Gmcrnmcnt had ieferred to a rortion of it in one .of its affidavits and a member of Parliament had rcferre.d tc :t puticular rule of the Blue Book in Par!i:iment: (iv) th:it no reaons were given\n\nwhy the disclosue of the document~ would be against public interest; and (vl that 1t had power to inspect the documents in respect."}}, {"text": "A. N. Ray", "label": "JUDGE", "start_char": 3547, "end_char": 3556, "source": "ner", "metadata": {"in_sentence": "Allowing the appeal to this Court, (per A. N. Ray.", "canonical_name": "A. N. RAY"}}, {"text": "A. Alagiriswami", "label": "JUDGE", "start_char": 3564, "end_char": 3579, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": true}}, {"text": "S. Sarkaria", "label": "JUDGE", "start_char": 3585, "end_char": 3596, "source": "ner", "metadata": {"in_sentence": "CJ .. A. Alagiriswami, R.\n\nS. Sarkaria and N. L. Untwalia, JJ) : ·\n\nHELD : The foundation of the law behind ss."}}, {"text": "N. L. Untwalia", "label": "JUDGE", "start_char": 3601, "end_char": 3615, "source": "ner", "metadata": {"in_sentence": "CJ .. A. Alagiriswami, R.\n\nS. Sarkaria and N. L. Untwalia, JJ) : ·\n\nHELD : The foundation of the law behind ss.", "canonical_name": "N. L. UNTWALIA, JJ."}}, {"text": "ss. 123 and 162", "label": "PROVISION", "start_char": 3666, "end_char": 3681, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 7416, "end_char": 7422, "source": "regex", "metadata": {"statute": null}}, {"text": "[1961] 2 S.C.R. 371", "label": "CASE_CITATION", "start_char": 7533, "end_char": 7552, "source": "regex", "metadata": {}}, {"text": "s. 162", "label": "PROVISION", "start_char": 9177, "end_char": 9183, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 123", "label": "PROVISION", "start_char": 9542, "end_char": 9553, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 10205, "end_char": 10211, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 11879, "end_char": 11885, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 162", "label": "PROVISION", "start_char": 12112, "end_char": 12123, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 12824, "end_char": 12830, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 12893, "end_char": 12899, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 14453, "end_char": 14459, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 14860, "end_char": 14866, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 15926, "end_char": 15932, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 16038, "end_char": 16044, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 16223, "end_char": 16229, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 17044, "end_char": 17057, "source": "ner", "metadata": {"in_sentence": "The Supreme Court in Sukhdeo Singh's case held that\n\nA I\n\nliJ, P. STATE V, RAJ NARAIN (Ray, C.J.) 337\n\nthe objection to the production or admissibility of document of which privilege is claimcid, should be."}}, {"text": "Sukhdeo Singh", "label": "OTHER_PERSON", "start_char": 17061, "end_char": 17074, "source": "ner", "metadata": {"in_sentence": "The Supreme Court in Sukhdeo Singh's case held that\n\nA I\n\nliJ, P. STATE V, RAJ NARAIN (Ray, C.J.) 337\n\nthe objection to the production or admissibility of document of which privilege is claimcid, should be.", "canonical_name": "Sukhdeo Singh"}}, {"text": "Section 162", "label": "PROVISION", "start_char": 17291, "end_char": 17302, "source": "regex", "metadata": {"statute": null}}, {"text": "Niren De", "label": "PETITIONER", "start_char": 18914, "end_char": 18922, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney General of India, B. D. Agarwa/a, and 0."}}, {"text": "B. D. Agarwa", "label": "LAWYER", "start_char": 18951, "end_char": 18963, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney General of India, B. D. Agarwa/a, and 0."}}, {"text": "P.\n\nRana", "label": "LAWYER", "start_char": 18974, "end_char": 18982, "source": "ner", "metadata": {"in_sentence": "P.\n\nRana, for the appellant."}}, {"text": "Shanti Bhushan", "label": "LAWYER", "start_char": 19004, "end_char": 19018, "source": "ner", "metadata": {"in_sentence": "Shanti Bhushan and 1."}}, {"text": "1. P. Goyal", "label": "LAWYER", "start_char": 19023, "end_char": 19034, "source": "ner", "metadata": {"in_sentence": "Shanti Bhushan and 1."}}, {"text": "Yogeshwar Prasad", "label": "LAWYER", "start_char": 19059, "end_char": 19075, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 19077, "end_char": 19088, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no.", "canonical_name": "S. K. Bagga"}}, {"text": "S. P. Bagga", "label": "LAWYER", "start_char": 19093, "end_char": 19104, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no.", "canonical_name": "S. K. Bagga"}}, {"text": "R. S. Sarkaria", "label": "JUDGE", "start_char": 19180, "end_char": 19194, "source": "ner", "metadata": {"in_sentence": "The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S. Sarkaria and N. L. Untwa!ia, JJ, was delivered by A. N. Ray, C.J. K. K.\n\nMathew, J. gave his separate Opinion.", "canonical_name": "R. s. SARKARIA"}}, {"text": "N. L. Untwa!ia", "label": "JUDGE", "start_char": 19199, "end_char": 19213, "source": "ner", "metadata": {"in_sentence": "The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S. Sarkaria and N. L. Untwa!ia, JJ, was delivered by A. N. Ray, C.J. K. K.\n\nMathew, J. gave his separate Opinion.", "canonical_name": "N. L. UNTWALIA, JJ."}}, {"text": "K. K.\n\nMathew", "label": "JUDGE", "start_char": 19252, "end_char": 19265, "source": "ner", "metadata": {"in_sentence": "The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S. Sarkaria and N. L. Untwa!ia, JJ, was delivered by A. N. Ray, C.J. K. K.\n\nMathew, J. gave his separate Opinion.", "canonical_name": "K. K.\n\nMathew"}}, {"text": "RAY", "label": "JUDGE", "start_char": 19298, "end_char": 19301, "source": "ner", "metadata": {"in_sentence": "RAY, C.J.-This is an apeal by special leave from the judgment dated 20 March, 1974 of the learned Single Judge of t.he High Court at Allahabad, holding that no privilege can be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is described for the sake of brevity to bet~ Blue Book sunimoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh.", "canonical_name": "RAY"}}, {"text": "Government of Uttar Pradesh", "label": "ORG", "start_char": 19490, "end_char": 19517, "source": "ner", "metadata": {"in_sentence": "RAY, C.J.-This is an apeal by special leave from the judgment dated 20 March, 1974 of the learned Single Judge of t.he High Court at Allahabad, holding that no privilege can be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is described for the sake of brevity to bet~ Blue Book sunimoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh."}}, {"text": "section 123", "label": "PROVISION", "start_char": 19524, "end_char": 19535, "source": "regex", "metadata": {"statute": null}}, {"text": "Raj Narain", "label": "PETITIONER", "start_char": 19776, "end_char": 19786, "source": "ner", "metadata": {"in_sentence": "Shri Raj Narain, the petitioner in Eelection Petition No.", "canonical_name": "RAJ NARAIN & ORS"}}, {"text": "High Court ofAllahabad", "label": "COURT", "start_char": 19846, "end_char": 19868, "source": "ner", "metadata": {"in_sentence": "5 of 1971 in the High Court ofAllahabad, m.ade an application on 27 July, 1973 for summoning certain witnesses along with documents mentioned in the application."}}, {"text": "Indira Nehru Gandhi", "label": "LAWYER", "start_char": 20395, "end_char": 20414, "source": "ner", "metadata": {"in_sentence": "Mfuistcy of the Uriioil Oovel'1JBicnt regarding the security and\n\ntour arrangements of Shrimati Indira Nehru Gandhi, the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February, 1971 or any general order for security arrangement; and (b) All correspondence between the St!j.te Government and the Government of India.", "canonical_name": "Indira Nehru Gandhi"}}, {"text": "Rae Bareli District", "label": "GPE", "start_char": 20479, "end_char": 20498, "source": "ner", "metadata": {"in_sentence": "Mfuistcy of the Uriioil Oovel'1JBicnt regarding the security and\n\ntour arrangements of Shrimati Indira Nehru Gandhi, the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February, 1971 or any general order for security arrangement; and (b) All correspondence between the St!j.te Government and the Government of India."}}, {"text": "Shrimati Indira Nehru Gandhi", "label": "OTHER_PERSON", "start_char": 21105, "end_char": 21133, "source": "ner", "metadata": {"in_sentence": "Second, the Chief Secretary, Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely,\n\n(a) circulars received from the Home Ministry and Defence Ministry of the Union Government regarding the security and tour ai:rangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government ol' India and between thl~ Chief Minister and the Prime Minister, regarding the arrangement of Polic:e for the arrangement of meeting for the Prime Minister by State Government and in regard to their expenses."}}, {"text": "India", "label": "GPE", "start_char": 21289, "end_char": 21294, "source": "ner", "metadata": {"in_sentence": "Second, the Chief Secretary, Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely,\n\n(a) circulars received from the Home Ministry and Defence Ministry of the Union Government regarding the security and tour ai:rangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government ol' India and between thl~ Chief Minister and the Prime Minister, regarding the arrangement of Polic:e for the arrangement of meeting for the Prime Minister by State Government and in regard to their expenses."}}, {"text": "Rae Bareli", "label": "OTHER_PERSON", "start_char": 21576, "end_char": 21586, "source": "ner", "metadata": {"in_sentence": "Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to the tour programme of Shrimati Indira Nehru Gandhi of District Rae Bareli for 1 and 25 February, 1971;\n\n(b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements for constructions of Rostrum, fixation of loudspeakers and other arrangements through Superintendent of Police, District Rae Bareli."}}, {"text": "Indira Nehru Gandhi", "label": "LAWYER", "start_char": 21697, "end_char": 21716, "source": "ner", "metadata": {"in_sentence": "Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to the tour programme of Shrimati Indira Nehru Gandhi of District Rae Bareli for 1 and 25 February, 1971;\n\n(b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements for constructions of Rostrum, fixation of loudspeakers and other arrangements through Superintendent of Police, District Rae Bareli.", "canonical_name": "Indira Nehru Gandhi"}}, {"text": "Rostrum", "label": "GPE", "start_char": 22011, "end_char": 22018, "source": "ner", "metadata": {"in_sentence": "Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to the tour programme of Shrimati Indira Nehru Gandhi of District Rae Bareli for 1 and 25 February, 1971;\n\n(b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements for constructions of Rostrum, fixation of loudspeakers and other arrangements through Superintendent of Police, District Rae Bareli."}}, {"text": "3 ,.September, 1973", "label": "DATE", "start_char": 22127, "end_char": 22146, "source": "ner", "metadata": {"in_sentence": "On 3 ,.September, 1973 the summons was issued to the Secretary, _General Administration."}}, {"text": "3 September,, 1973", "label": "DATE", "start_char": 22299, "end_char": 22317, "source": "ner", "metadata": {"in_sentence": "The summons was endorsed to the Confidential Department by the General Department on 3 September,, 1973 as will appear from paragraph 5 of the affidavit of R. K. Kaul, Commissioner and Secretary in-charge."}}, {"text": "R. K. Kaul", "label": "RESPONDENT", "start_char": 22370, "end_char": 22380, "source": "ner", "metadata": {"in_sentence": "The summons was endorsed to the Confidential Department by the General Department on 3 September,, 1973 as will appear from paragraph 5 of the affidavit of R. K. Kaul, Commissioner and Secretary in-charge.", "canonical_name": "R. K. Kaul"}}, {"text": "5 September, 1973", "label": "DATE", "start_char": 22423, "end_char": 22440, "source": "ner", "metadata": {"in_sentence": "On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effect that the Chief Secretmy-is not personally required to appear pursuant to the summons."}}, {"text": "Lucknow", "label": "GPE", "start_char": 22545, "end_char": 22552, "source": "ner", "metadata": {"in_sentence": "On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effect that the Chief Secretmy-is not personally required to appear pursuant to the summons."}}, {"text": "6 September, 1973", "label": "DATE", "start_char": 22830, "end_char": 22847, "source": "ner", "metadata": {"in_sentence": "On 6 September, 1973 S. S. Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul, Home Secretary as well as Secretary, Confidential Department, to go to the High Court with the documents summoned and to claim privilege."}}, {"text": "S. S. Saxena", "label": "LAWYER", "start_char": 22848, "end_char": 22860, "source": "ner", "metadata": {"in_sentence": "On 6 September, 1973 S. S. Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul, Home Secretary as well as Secretary, Confidential Department, to go to the High Court with the documents summoned and to claim privilege.", "canonical_name": "S. S.\n\nSaxena"}}, {"text": "Saxena", "label": "PETITIONER", "start_char": 23304, "end_char": 23310, "source": "ner", "metadata": {"in_sentence": "In paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Court the Home Secretary deputed the applicant Saxena to go to the Court with the documents summoned with clear instructions that privilege is to be claimed under section 123 of the Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and\n\nU. P. STATE V, RAJ NARAIN (Ray, CJ.)", "canonical_name": "Saxena"}}, {"text": "section 123", "label": "PROVISION", "start_char": 23420, "end_char": 23431, "source": "regex", "metadata": {"statute": null}}, {"text": "Ray", "label": "JUDGE", "start_char": 23583, "end_char": 23586, "source": "ner", "metadata": {"in_sentence": "In paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Court the Home Secretary deputed the applicant Saxena to go to the Court with the documents summoned with clear instructions that privilege is to be claimed under section 123 of the Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and\n\nU. P. STATE V, RAJ NARAIN (Ray, CJ.)", "canonical_name": "RAY"}}, {"text": "U.P.", "label": "ORG", "start_char": 23775, "end_char": 23779, "source": "ner", "metadata": {"in_sentence": "J3 9\n\nInstructions for the protection of the Prime Minister when on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U.P. and the Prime Minister in regard to the Police arrangements for the meetings of the Prime Minister."}}, {"text": "Saxena", "label": "PETITIONER", "start_char": 23881, "end_char": 23887, "source": "ner", "metadata": {"in_sentence": "Saxena was examined by the High Court on 10 September, 1973.", "canonical_name": "Saxena"}}, {"text": "10 September, 1973", "label": "DATE", "start_char": 23922, "end_char": 23940, "source": "ner", "metadata": {"in_sentence": "Saxena was examined by the High Court on 10 September, 1973."}}, {"text": "Central Government", "label": "ORG", "start_char": 24229, "end_char": 24247, "source": "ner", "metadata": {"in_sentence": "In the application it is stated that during the course of his statement Saxena admitted that certain instructions were issued by the Central Government for the arrangement of Prime Minister's tour which are secret and hence he is not in a position to file those documents."}}, {"text": "11 September, 1973", "label": "DATE", "start_char": 24621, "end_char": 24639, "source": "ner", "metadata": {"in_sentence": "On 11 September, 1973 there was an order as follows; The application of the election petitioner for rejection of the claim for privilege be put up for disposal."}}, {"text": "Saxena", "label": "WITNESS", "start_char": 24858, "end_char": 24864, "source": "ner", "metadata": {"in_sentence": "The arguments might take some time and therefore the papers should be left by Saxena in a sealed cover in the Court."}}, {"text": "12 September, 1973", "label": "DATE", "start_char": 25011, "end_char": 25029, "source": "ner", "metadata": {"in_sentence": "On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police, Rae Bareli claimed privilege under section 123 of the Evidence Act."}}, {"text": "Ram Sewak Lal Sinha", "label": "OTHER_PERSON", "start_char": 25058, "end_char": 25077, "source": "ner", "metadata": {"in_sentence": "On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police, Rae Bareli claimed privilege under section 123 of the Evidence Act."}}, {"text": "section 123", "label": "PROVISION", "start_char": 25164, "end_char": 25175, "source": "regex", "metadata": {"statute": null}}, {"text": "13 September, 1973", "label": "DATE", "start_char": 25554, "end_char": 25572, "source": "ner", "metadata": {"in_sentence": "On 13 September, 1973 the learned Judge ordered that arguments on; the question of privilege would be heard on 19 September, l,973."}}, {"text": "19 September, l,973", "label": "DATE", "start_char": 25662, "end_char": 25681, "source": "ner", "metadata": {"in_sentence": "On 13 September, 1973 the learned Judge ordered that arguments on; the question of privilege would be heard on 19 September, l,973."}}, {"text": "K.\n\nKaul", "label": "OTHER_PERSON", "start_char": 25751, "end_char": 25759, "source": "ner", "metadata": {"in_sentence": "K.\n\nKaul."}}, {"text": "R. K. Kaul", "label": "RESPONDENT", "start_char": 25774, "end_char": 25784, "source": "ner", "metadata": {"in_sentence": "The deponent R. K. Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosure will be prejudicial to public interest for the reasons set out therein.", "canonical_name": "R. K. Kaul"}}, {"text": "19 September,1973 stated", "label": "DATE", "start_char": 25814, "end_char": 25838, "source": "ner", "metadata": {"in_sentence": "The deponent R. K. Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosure will be prejudicial to public interest for the reasons set out therein."}}, {"text": "20 September, 1973", "label": "DATE", "start_char": 26418, "end_char": 26436, "source": "ner", "metadata": {"in_sentence": "On 20 September, 1973 the case was listed for arguments for deciding preliminary issues and on the question of privilege."}}, {"text": "21 September, 1973", "label": "DATE", "start_char": 26678, "end_char": 26696, "source": "ner", "metadata": {"in_sentence": "On 21 September, 1973 the arguments 'in the matter of privilege were heard."}}, {"text": "24 September, 1973", "label": "DATE", "start_char": 26754, "end_char": 26772, "source": "ner", "metadata": {"in_sentence": "On 24 September, 1973 further arguments on the question of\n\n340 SUPREME COURT Rl~PORTS {1975] 3 s.c."}}, {"text": "29 October, 1973", "label": "DATE", "start_char": 26886, "end_char": 26902, "source": "ner", "metadata": {"in_sentence": "R.\n\nprivilege were adjourned until 29 October, 1973."}}, {"text": "23 October, 1973", "label": "DATE", "start_char": 26904, "end_char": 26920, "source": "ner", "metadata": {"in_sentence": "23 October, 1973 was holiday."}}, {"text": "30 October, 1973", "label": "DATE", "start_char": 26937, "end_char": 26953, "source": "ner", "metadata": {"in_sentence": "On 30 October, 1973 arguments were not concluded."}}, {"text": "20 March, 1974", "label": "DATE", "start_char": 27534, "end_char": 27548, "source": "ner", "metadata": {"in_sentence": "Further arguments on the question of privilege were heard on 12, 13 and 14 days of March, 1974 The judgment was delivered on 20 March, 1974."}}, {"text": "Indira Nehru", "label": "LAWYER", "start_char": 28363, "end_char": 28375, "source": "ner", "metadata": {"in_sentence": "The second set also relates to circulars regarding security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regarding the arrangement of police for the meetings of the Prime Minister.", "canonical_name": "Indira Nehru Gandhi"}}, {"text": "section 123", "label": "PROVISION", "start_char": 28905, "end_char": 28916, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 29077, "end_char": 29088, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 29682, "end_char": 29693, "source": "regex", "metadata": {"statute": null}}, {"text": "Cammell Laired", "label": "OTHER_PERSON", "start_char": 32000, "end_char": 32014, "source": "ner", "metadata": {"in_sentence": "In the Cammell Laired case (supra) the respondent objected to produce certain documents referred to in the Treasury Solicitors letter dire<;_ting the respondent not to produce the documents.", "canonical_name": "Ca111mell Laird"}}, {"text": "(1961] 2 S.C.R. 371", "label": "CASE_CITATION", "start_char": 32786, "end_char": 32805, "source": "regex", "metadata": {}}, {"text": "Cammell Laird", "label": "OTHER_PERSON", "start_char": 34264, "end_char": 34277, "source": "ner", "metadata": {"in_sentence": "In the Cammell Laird case (supra) the House of Lords said that documents are excluded from production if the public interest requires that they should be wiithheld.", "canonical_name": "Ca111mell Laird"}}, {"text": "CammeU Laird", "label": "OTHER_PERSON", "start_char": 34708, "end_char": 34720, "source": "ner", "metadata": {"in_sentence": "This statement of law in the CammeU Laird case (supra) was examined in Conway v. Rimmer & Anr.", "canonical_name": "Ca111mell Laird"}}, {"text": "s1", "label": "PROVISION", "start_char": 35966, "end_char": 35968, "source": "regex", "metadata": {"statute": null}}, {"text": "V. RAJ NARAIN", "label": "JUDGE", "start_char": 36095, "end_char": 36108, "source": "ner", "metadata": {"in_sentence": "U, 1', ST~'l'B V. RAJ NARAIN (Ray, CJ.)"}}, {"text": "England", "label": "GPE", "start_char": 38856, "end_char": 38863, "source": "ner", "metadata": {"in_sentence": "In short, the G 'position in law in England."}}, {"text": "Sukhdev Singh", "label": "OTHER_PERSON", "start_char": 41684, "end_char": 41697, "source": "ner", "metadata": {"in_sentence": "This Co.urt in Sukhdev Singh's C<ase (supra) held that the principle behind section 123 of the Evidence Act is the overriding and paramount charactiir of public interest and injury to public.", "canonical_name": "Sukhdeo Singh"}}, {"text": "section 123", "label": "PROVISION", "start_char": 41745, "end_char": 41756, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 123", "label": "PROVISION", "start_char": 41909, "end_char": 41920, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 42235, "end_char": 42246, "source": "regex", "metadata": {"statute": null}}, {"text": "section 162", "label": "PROVISION", "start_char": 42280, "end_char": 42291, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 162", "label": "PROVISION", "start_char": 42313, "end_char": 42324, "source": "regex", "metadata": {"statute": null}}, {"text": "section 162", "label": "PROVISION", "start_char": 43016, "end_char": 43027, "source": "regex", "metadata": {"statute": null}}, {"text": "section 162", "label": "PROVISION", "start_char": 43290, "end_char": 43301, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 43417, "end_char": 43428, "source": "regex", "metadata": {"statute": null}}, {"text": "section 162", "label": "PROVISION", "start_char": 44394, "end_char": 44405, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 44518, "end_char": 44529, "source": "regex", "metadata": {"statute": null}}, {"text": "section 162", "label": "PROVISION", "start_char": 44854, "end_char": 44865, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 123 and 162", "label": "PROVISION", "start_char": 44971, "end_char": 44991, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 45456, "end_char": 45467, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 45691, "end_char": 45702, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 46039, "end_char": 46050, "source": "regex", "metadata": {"statute": null}}, {"text": "Amar Chand Butail", "label": "OTHER_PERSON", "start_char": 46616, "end_char": 46633, "source": "ner", "metadata": {"in_sentence": "In Amar Chand Butail's case (supra) the appellant called upon the respondents the Union and the State to produce certain documents."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 46946, "end_char": 46960, "source": "ner", "metadata": {"in_sentence": "This Court saw the documents and was satisfied that the claim for privilege was not justified.--\n\nIn Sukhdev Singh's case (supra) the majority opinion was given by Gajendragadkar, J. In Amar Chand Butail's case (supl'a) Gagentlragadkar, C.J. spoke for the Court in a unanimous decision."}}, {"text": "Gagentlragadkar", "label": "JUDGE", "start_char": 47002, "end_char": 47017, "source": "ner", "metadata": {"in_sentence": "This Court saw the documents and was satisfied that the claim for privilege was not justified.--\n\nIn Sukhdev Singh's case (supra) the majority opinion was given by Gajendragadkar, J. In Amar Chand Butail's case (supl'a) Gagentlragadkar, C.J. spoke for the Court in a unanimous decision."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 49156, "end_char": 49167, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n123", "label": "PROVISION", "start_char": 51967, "end_char": 51979, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 53174, "end_char": 53185, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 53256, "end_char": 53267, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 123 and 162", "label": "PROVISION", "start_char": 54394, "end_char": 54414, "source": "regex", "metadata": {"statute": null}}, {"text": "section 162", "label": "PROVISION", "start_char": 56634, "end_char": 56645, "source": "regex", "metadata": {"statute": null}}, {"text": "20 September. J 973", "label": "DATE", "start_char": 56897, "end_char": 56916, "source": "ner", "metadata": {"in_sentence": "ll1 the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September."}}, {"text": "London", "label": "GPE", "start_char": 57227, "end_char": 57233, "source": "ner", "metadata": {"in_sentence": "The Grosvenor Hotel, London gruup of cases (supra) in England shows that if an affidavit is defective an opportullity can be given to file a better affidavit."}}, {"text": "Ca111mell Laird", "label": "OTHER_PERSON", "start_char": 58117, "end_char": 58132, "source": "ner", "metadata": {"in_sentence": "in the Ca111mell Laird case, it was said that though some of the papers\n\nhall been produced before the Tribunal of Enquiry and though referancc wa~ made to those papers in the Enquiry Report yet a privilege could be claimed.", "canonical_name": "Ca111mell Laird"}}, {"text": "R. K. Kaul", "label": "JUDGE", "start_char": 58925, "end_char": 58935, "source": "ner", "metadata": {"in_sentence": "The lear, ned judge will consider the affidavit afirmed by R. K. Kaul.", "canonical_name": "R. K. Kaul"}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 60044, "end_char": 60050, "source": "ner", "metadata": {"in_sentence": "MATHEW, J. During thi) frial of the election petition filed by res pondent No."}}, {"text": "S. S.\n\nSaxena", "label": "LAWYER", "start_char": 60523, "end_char": 60536, "source": "ner", "metadata": {"in_sentence": "In pursuance to summons issued to th'~ Secretary, GenE:ral Administration and the Chief Secretary, Government of U.P., Mr. S. S.\n\nSaxena appeared in court with the documents and objected to produce:\n\n( 1 ) A blue book entitled\n\n11Rules and Instructions for the Protection of Prime Minister when on tour or in travel; ·\n\n(2) Correspondence exchanged between the two govemmen.ts viz.,", "canonical_name": "S. S.\n\nSaxena"}}, {"text": "10-9-1973", "label": "DATE", "start_char": 61193, "end_char": 61202, "source": "ner", "metadata": {"in_sentence": "Saxena was examined by Court on 10-9-1973."}}, {"text": "11-9-1973", "label": "DATE", "start_char": 61434, "end_char": 61443, "source": "ner", "metadata": {"in_sentence": "The Court passed an order on 11-9-1973 that the application be put up for disposal."}}, {"text": "12-9-1973", "label": "DATE", "start_char": 61748, "end_char": 61757, "source": "ner", "metadata": {"in_sentence": "Examination of Saxena was over on 12-9-1973."}}, {"text": "Rai Bareily", "label": "OTHER_PERSON", "start_char": 61802, "end_char": 61813, "source": "ner", "metadata": {"in_sentence": "On that day, the Superintendent of Police, Rai Bareily, filed an affidavit claiming privilege in respect of the documents summoned from his office."}}, {"text": "13-9-1973", "label": "DATE", "start_char": 62013, "end_char": 62022, "source": "ner", "metadata": {"in_sentence": "On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was."}}, {"text": "14-9-1973", "label": "DATE", "start_char": 62058, "end_char": 62067, "source": "ner", "metadata": {"in_sentence": "On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was."}}, {"text": "K. Kaul", "label": "OTHER_PERSON", "start_char": 62239, "end_char": 62246, "source": "ner", "metadata": {"in_sentence": "On 20·9~1973, Saxena filed in Court an application and the Home Secretary to th.e Government of U.P., Shri R: K. Kaul, the head of the depar1ment in question an affidavit claiming privilege for the documents."}}, {"text": "20-3-1974", "label": "DATE", "start_char": 62412, "end_char": 62421, "source": "ner", "metadata": {"in_sentence": "The argument was concluded on 14-3·1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege."}}, {"text": "Government of U.P.", "label": "ORG", "start_char": 63685, "end_char": 63703, "source": "ner", "metadata": {"in_sentence": "In response to the summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Saxena was deputed to take the documenW!"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 64036, "end_char": 64042, "source": "regex", "metadata": {"statute": null}}, {"text": "20~9-1973", "label": "DATE", "start_char": 64156, "end_char": 64165, "source": "ner", "metadata": {"in_sentence": "As no affidavit of the Minister or of the Head of the Department was filed claiming privilege under s. 123 of the Evidence Act in the first instance, the Court said that the privilege was lost and the affidavit filed on 20~9-1973 by Shri R. K. Kaul, Home Secre tary, claiming privilege, was of no avail."}}, {"text": "(1961] 2 SC R 371", "label": "CASE_CITATION", "start_char": 64415, "end_char": 64432, "source": "regex", "metadata": {}}, {"text": "Sodhi Sukhdev Singh", "label": "OTHER_PERSON", "start_char": 65234, "end_char": 65253, "source": "ner", "metadata": {"in_sentence": "Th•~\n\nCourt then quoted a pa:ssage from the decision of this Court in Sodhi Sukhdev Singh' s case (supra) to the effect that court has no power to hold an enquiry into the possible injury to the public interest which may :result from the disclosure of the document as that is n matter for the authority concerned to decide but that the court is competent and in deed bound to hold a preliminary enquiry and determine the validity i0f the objection and that necessarily involves an enquiry into the question whether the document relates to an affair of state under s. 123 or not.", "canonical_name": "Sodhi Sukhdev Singh"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 65728, "end_char": 65734, "source": "regex", "metadata": {"statute": null}}, {"text": "Jyotirmoy", "label": "OTHER_PERSON", "start_char": 66361, "end_char": 66370, "source": "ner", "metadata": {"in_sentence": "2 had obtained a portion of the Blue Book (Rule 71/6) and had produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred to this particular rule in Parliament."}}, {"text": "Bosu", "label": "OTHER_PERSON", "start_char": 66371, "end_char": 66375, "source": "ner", "metadata": {"in_sentence": "2 had obtained a portion of the Blue Book (Rule 71/6) and had produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred to this particular rule in Parliament."}}, {"text": "Section 123", "label": "PROVISION", "start_char": 66648, "end_char": 66659, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 162", "label": "PROVISION", "start_char": 66963, "end_char": 66974, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 67904, "end_char": 67910, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 67915, "end_char": 67921, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court of U.S.A.", "label": "COURT", "start_char": 68047, "end_char": 68070, "source": "ner", "metadata": {"in_sentence": "The ancient proposition that the public has a right to every man's evidence has been reiterated by the Supreme Court of U.S.A. in its recent decision in United States v. Nixon."}}, {"text": "Cross", "label": "OTHER_PERSON", "start_char": 69018, "end_char": 69023, "source": "ner", "metadata": {"in_sentence": "Pealing with the topics of exclusion of evidence on the ground of 'state interest', Cross says that this head of exclusion of evidence differs from privilege, as privilege can be waived, but that an objection on the score of public policy must be taken by the Judge if it is not raised by the parties or the Crown. ("}}, {"text": "Phipson", "label": "JUDGE", "start_char": 69254, "end_char": 69261, "source": "ner", "metadata": {"in_sentence": "8)\n\nPhipson deals with the topic under the general category \"Evidence excluded by public policy\".", "canonical_name": "Phipson"}}, {"text": "sections 124", "label": "PROVISION", "start_char": 69550, "end_char": 69562, "source": "regex", "metadata": {"statute": null}}, {"text": "Reid", "label": "OTHER_PERSON", "start_char": 69848, "end_char": 69852, "source": "ner", "metadata": {"in_sentence": "Lord Reid in Beg v. Lewas( 0 ) said that the expression 'Crown privilege is wrong and may be misleading and that there is no queston of any privilege in the ordinary sense of the word, as the real question is whether the public interest requires that a document shall not be produced and, whether the public interest is so strong as to oYcrride\n\n(I) see Asiatic Petroieum Company Ltd. v Anglo Persian Oil Co. [1916] I KB 822, at 830; and Comva.v v Rimmer (1968) 1 A\\l ER 874, at 899."}}, {"text": "Pearson", "label": "OTHER_PERSON", "start_char": 70624, "end_char": 70631, "source": "ner", "metadata": {"in_sentence": "Lord Pearson observed that the expression 'Crown privilege' is not accurate, though sometimes convenient."}}, {"text": "Simon of Claisdale", "label": "OTHER_PERSON", "start_char": 70730, "end_char": 70748, "source": "ner", "metadata": {"in_sentence": "Lord Simon of Claisdale observed in that case :\n\n\" ... 'Crown privilege' is a misnomer and apt to be misleading."}}, {"text": "Pollock", "label": "OTHER_PERSON", "start_char": 71704, "end_char": 71711, "source": "ner", "metadata": {"in_sentence": "As is pointed out in Pollock and Maitland's History of English Law (2nd ed .. , Vol."}}, {"text": "Maitland", "label": "OTHER_PERSON", "start_char": 71716, "end_char": 71724, "source": "ner", "metadata": {"in_sentence": "As is pointed out in Pollock and Maitland's History of English Law (2nd ed .. , Vol."}}, {"text": "John Pratt", "label": "JUDGE", "start_char": 72419, "end_char": 72429, "source": "ner", "metadata": {"in_sentence": "p. 294) the Attorney General claimed that minutes of the Lords of the Council should not be produced; and Sir John Pratt L.C.J. supported the claim, additing that \"it would be for the disservice of the 1Gng fo have these things disclosed\"."}}, {"text": "Coke", "label": "OTHER_PERSON", "start_char": 72559, "end_char": 72563, "source": "ner", "metadata": {"in_sentence": "We recall Coke's useful principle : Nihil quod inconvenience est\n\n/icitum."}}, {"text": "Stratford", "label": "OTHER_PERSON", "start_char": 72706, "end_char": 72715, "source": "ner", "metadata": {"in_sentence": "It is true that in the preceding century the privileg,:i was not upheld 1ither in Stratford's case (1640) 3 How, St.\n\nTr."}}, {"text": "s. 162", "label": "PROVISION", "start_char": 74972, "end_char": 74978, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 123", "label": "PROVISION", "start_char": 75630, "end_char": 75641, "source": "regex", "metadata": {"statute": null}}, {"text": "J.K.S. Simon", "label": "OTHER_PERSON", "start_char": 76299, "end_char": 76311, "source": "ner", "metadata": {"in_sentence": "And, in fact, the Court did not allow the production of the document, for, we find a note in the proceed\\ngs of the Court on 10-9-1973 .stating that the \"question about the production of this document in Court shall be decided after argumi;!nt of the parties on the point is finally\n\n(1) see : J.K.S. Simon, \"Evidence Excluded by Consideration of State Interest\",\n\n(1955) Cambridge ~L Journal, 62."}}, {"text": "Kaul", "label": "JUDGE", "start_char": 76463, "end_char": 76467, "source": "ner", "metadata": {"in_sentence": "And before the arguments were finally concluded,, Kaul, the officer at the head of the department, filed an affidavit clairiling privilege.", "canonical_name": "Kaul"}}, {"text": "Kaul", "label": "JUDGE", "start_char": 76763, "end_char": 76767, "source": "ner", "metadata": {"in_sentence": "As the privilege could not have been waived, and as, before the objection to the production of the document raise:d by Saxena-whether tenable in Jaw or not--was decided by the Court, an affidavit was filed by Kaul objecting to the production of the document and stating that the document in question rel11ted to secret affair& of state, the Court should have considered the validity of that ob.iection under s. 162 of the Evidence Act.", "canonical_name": "Kaul"}}, {"text": "s. 162", "label": "PROVISION", "start_char": 76962, "end_char": 76968, "source": "regex", "metadata": {"statute": null}}, {"text": "Denning M.R.", "label": "JUDGE", "start_char": 77051, "end_char": 77063, "source": "ner", "metadata": {"in_sentence": "C.A.)(1), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it and that the judge himself must take the objection if it appears to him that the production of the document would be injurious to public interest.", "canonical_name": "Denning M.R."}}, {"text": "Phipson", "label": "JUDGE", "start_char": 78284, "end_char": 78291, "source": "ner", "metadata": {"in_sentence": "According to Phipson( 8), witnesses may not be asked, and will not be allowed, to state facts or to produce documents the disclosure of which would be prejudicial to the public service, and this exclusion is not confined to official communications or documents, but extends to alJ others likely to prejudice the public interest, even when relating to commercial matters.", "canonical_name": "Phipson"}}, {"text": "Sodhi Sukhdev Sjngh", "label": "OTHER_PERSON", "start_char": 80454, "end_char": 80473, "source": "ner", "metadata": {"in_sentence": "In Sodhi Sukhdev Sjngh's case (supra) this Court held that there are three views possible on the matter.", "canonical_name": "Sodhi Sukhdev Singh"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 81522, "end_char": 81528, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 123 and 162", "label": "PROVISION", "start_char": 81752, "end_char": 81767, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 82239, "end_char": 82245, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 83118, "end_char": 83124, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 162", "label": "PROVISION", "start_char": 83648, "end_char": 83659, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 84024, "end_char": 84030, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 84280, "end_char": 84286, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 84404, "end_char": 84410, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 84848, "end_char": 84854, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 85341, "end_char": 85352, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 162", "label": "PROVISION", "start_char": 85415, "end_char": 85421, "source": "regex", "metadata": {"statute": null}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 85528, "end_char": 85537, "source": "ner", "metadata": {"in_sentence": "It 1s, therefore, clear that even though the head of the department has refused to grant permission, it is open to the court to go into the question after examining the documert and find out whether the disc:losure of the document would be injurious to public interest and the expression \"as he thinks fit\" in the latter part of section 123 need not deter the court from deciding the question afresh as s. 162 authorist::s the court to determine the validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh's case)."}}, {"text": "Wigmore", "label": "OTHER_PERSON", "start_char": 89785, "end_char": 89792, "source": "ner", "metadata": {"in_sentence": "According to Wigmore, the extent to which this privilege has gone beyond \"secrets of State\" in the military or international sense is by -------- - / ( I) Lord Parker Of Weddington in The Zemora [1916] 2 AC 77, at 107."}}, {"text": "Blanesburgh", "label": "OTHER_PERSON", "start_char": 92422, "end_char": 92433, "source": "ner", "metadata": {"in_sentence": "Lord Blanesburgh said in Robinson v. State of South Australia(4), the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannot be disclosed without injury\n\nto the public interests and not that the documents are confidential or <>fficial which alone is no reason for their non-production."}}, {"text": "Jn Robinson", "label": "OTHER_PERSON", "start_char": 94565, "end_char": 94576, "source": "ner", "metadata": {"in_sentence": "Jn Robinson's case, (Supra) the Privy Council took the view that the court has power to inspect the Clocument in order to decide the question whether it belongs to one category or the other."}}, {"text": "Denning", "label": "JUDGE", "start_char": 94789, "end_char": 94796, "source": "ner", "metadata": {"in_sentence": "It is also noteworthy that Lord Denning, M. R. in his dissenting juc!gment in the Court of Appeal in Conway v. Rimmer has referred to the decision in Amar Chand Butail v. Union of India and Others\n\n(supra) and said that the Supreme Court of Jndiaalso has come round to the view that there is a residual power in the court to inspect a document to decide whether its production in court or disclosure would be injurious to public interest.", "canonical_name": "Denning M.R."}}, {"text": "Supreme Court of Jndiaalso", "label": "COURT", "start_char": 94981, "end_char": 95007, "source": "ner", "metadata": {"in_sentence": "It is also noteworthy that Lord Denning, M. R. in his dissenting juc!gment in the Court of Appeal in Conway v. Rimmer has referred to the decision in Amar Chand Butail v. Union of India and Others\n\n(supra) and said that the Supreme Court of Jndiaalso has come round to the view that there is a residual power in the court to inspect a document to decide whether its production in court or disclosure would be injurious to public interest."}}, {"text": "Vinson", "label": "JUDGE", "start_char": 95312, "end_char": 95318, "source": "ner", "metadata": {"in_sentence": "Probably the only circumstances in which a court will not insist on - inspection of the document is that stated by Vinson, C. J. in United States v. Revnolds(B) :\n\n\"Regardless of how it is articulated, some like formula of compromise must be applied here."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 96921, "end_char": 96927, "source": "regex", "metadata": {"statute": null}}, {"text": "Danniag", "label": "OTHER_PERSON", "start_char": 98344, "end_char": 98351, "source": "ner", "metadata": {"in_sentence": "No doubt, \"the very description of the documents in the class may suffice sometimes to show that they should not be produced such us Cabinet papers\" (see per Lord Danniag, M.R. in In r1i Grosvenor Hotel, London (No."}}, {"text": "Harman", "label": "JUDGE", "start_char": 98405, "end_char": 98411, "source": "ner", "metadata": {"in_sentence": "Harman, L. J. said(2 ) in that case : \"the appellants' real point is t!i.at since Duncan's Case( 8 ) theire has grown up a practice to lump documents together and treat them as a class for which privilege is claimed and that this depends on dicta pronounced on what is really a dif[erent subject-matter which are not binding on the court and are wrong.\""}}, {"text": "Duncan", "label": "OTHER_PERSON", "start_char": 98487, "end_char": 98493, "source": "ner", "metadata": {"in_sentence": "Harman, L. J. said(2 ) in that case : \"the appellants' real point is t!i.at since Duncan's Case( 8 ) theire has grown up a practice to lump documents together and treat them as a class for which privilege is claimed and that this depends on dicta pronounced on what is really a dif[erent subject-matter which are not binding on the court and are wrong.\""}}, {"text": "s8", "label": "PROVISION", "start_char": 98977, "end_char": 98979, "source": "regex", "metadata": {"statute": null}}, {"text": "Upjohn", "label": "OTHER_PERSON", "start_char": 98986, "end_char": 98992, "source": "ner", "metadata": {"in_sentence": "Lord Upjohn said( 5) : \" ••• if privilege is\n\n(1) [1965) l Ch 1210, at 1246,\n\n(2) ibid at p 1248."}}, {"text": "Hodson", "label": "OTHER_PERSON", "start_char": 99503, "end_char": 99509, "source": "ner", "metadata": {"in_sentence": "In the same case Lord Hodson said ( 1) : \"I do not regard the classification which places all documents under the heading either of contents or class to be wholly satisfactory."}}, {"text": "Pearce", "label": "OTHER_PERSON", "start_char": 102051, "end_char": 102057, "source": "ner", "metadata": {"in_sentence": "Lord Pearce said in Conway v. Rimmer(!):"}}]}
{"document_id": "1975_3_381_393_EN", "year": 1975, "text": "BALDEV SINGH v.\n\nTEJA SINGH SWATANTAR (DEAD) & ORS.\n\nJanuary 24, 1975\n\n38 l\n\n[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]\n\nElection-Conduct of Election Rules, r. 63-Returning Officers duty to re count, when arises-Power of Court to order recoum-Scope of. .\n\nFor a Parliamentary seat in the State of Punjab the appellant, a candidate of the Akali Dal, and the first respondent, the nominee of the Communist Party of India, were two of the contesting candidates. The total number of votes polled were 344073 out of which 7663 were invalidated. The first respondent was de clarecf elected by a margin of 210 votes. Even at the time the counting was com pleted the appellant applied to the Returning Officer for a recount but the application was rejected as premature. Soon after the. announcement of the votes polled by each candidate the appellant applied again for recount, under r. 63 (2) of the conduct of Election Rules. The Returning Officer rejected this application also.\n\nThe appellant filed an election petition and contended that, the attitude of the counting staff was hostile to the appellant and his party, and that there were many irregularities in rejecting votes in favour of appellant, in accepting vote in favour of the !st respondent, and in the counting and prayed for a general recount.\n\nThe High Court, by an interim order ordered a limited recount of votes in one of the segments of' the constituency and that order was affirmed by a consent order in this Court 'to cover the votes of both the contestants. This recount revealed some errors but did not tilt the scale in favour of the appellant. The election petition was ultimately dismissed by the High Court.\n\nHELD : ( 1) On \\he evidence there is no force in the appellant's conten tion about either official bias or of violation of rules. If there had been any manipulation by the counting stall' the matter would have been brought to the notice of the Returning Officer and the senior officers present for supervising the counting and deciding disputes, reference to it would have been made in the two applications for recount, and in the appellant's application to the Election Commissioner for inspection. Moreover, the alleged biased behaviour is disproved by the accuracy disclosed in the recount, the marginal error being more or less similar in the case of both the candidates. [388 C-F]\n\n<2) The Returning Officer was in error in disallowing the recount. Under r. 63 the mandate for recount is not the exception, and refusal is restricted to cases, where the demand itself is 'frivolous or unreasonable'. Where the margin of dif ference i~ minimal the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If formal defects had been misconstrued as substantial in firmities or vice versa resulting in wrongful reception or rejection, the s<X'ner it was set right the better, especially when a plea for a second inspection b.ad been made on the spot. Prestige or fatigue should not inhibit a fresh or a partial check. The instructions contained in para 17, cl. (nn) of the Procedure for Counting in the Handbook for Returning Officers requires the Returning Officer to ensure further accuracy in the counting of votes by making 5 % test check.\n\nThe Returning Officer, in the present case, had not done so, but that is no\n\nground for this Court td order recount or to reverse the decision of the High Court refusing recount. [385 G-386 B; 392 C-G] ( 3) While the Returning officer .should be liberal, the power of the Court to order recount which is undoubted, should be exercised sparingly. Even if there is difficulty in giving the serial number of voting papers illegally rejected or received an application made for inspection of ballot boxes mmt give material facts whlch would enable the tribunal or the Court to consider whether in the interests of justice, the. ballot boxes ~.hould b~ inspcted or ot. .In dealing genral allega t; ons that valid votes were llilProperly re1ected or 1nvahd votes were •moroperly accepted, would not serve th111 purpose which is provided for ins. 83(1)(a). In dealing with this question the importance of secrecy of the ballot papers cannot\n\n10-423SCij75\n\nhr ignored. The statutory rules framed unde~ Act ar~ inti:ded to provide ad~ quate safeguard for the examination of the vahd1ty or !nvahdt¥ of votes for their proper counting. Care must be taken to see that elect10n pet1t10ners do not. ge~ a chance to make a roving or fishing enquiry into the ballot boxes so as to Justify their claim that the returning candidate's election is void, and to threaten the certainty of the poll by fiippan•. recounts. [390 D-H; 392 G-H; 393 C-DJ\n\nJagiit Singh, A.I.R. 1966 S.C. 774, 783 and Chanda Singh v. Choudhary Shiv Ram Verma, Civil Appeal No. 1185 of 1973, decided on 20-12-1974, followed.\n\nIn the present case. the High Court construed r. 56 of the ruls in the light of r. 38 and tool:: the view thM the ballot paper shall not be reiected merely on the ground of a formal defect as the accidental omission of the signiiturc. of the\n\nPresiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertance or lapse of the Presiding Officer or the Polling officer, and ordered a limited recount rightly. However, the number of totally rejected ballot papers of all candidates when subjected to a repeated scrutiny yielded disapp;.1inting results from the point of view of the. appellant.\n\nOut of 1096 rejected ballot papers only 17. claimed by the appellant, and 7, by the first respondent, were found faulty. Therefore, the High Court was right in refosing to grnnt a recount on a comprehensive scale.\n\n(387 E-HJ\n\n( 4) Even in the application to the Election Commission the plea for inspection of the used ballot papers was primarily confined to one Assembly segment and the rejected ballots of other assembly segments. In regard to that plea, the petition gave details, but not a scintilla of evidence, on which the Court could act, was present on the record to prove prima facie, what has been alleged. Therefore. refusal of recount was not imp10per.\n\n[391 B, D-E]\n\nCIVIL APPELLATE JURISDICTION': Civil Appeal No. 233 of 1973.\n\nFrom the judgment and order dated the 18th October, 1972, of the Punjab and Haryana High Court in Election Petn. No. 2 of 1971.\n\nHardev Singh, \"11'1. S. Gupta, and R. S. Sodhi, for the appellant.\n\nS. C. Agarwala.. for respondent no. 1.\n\nM. R. K.. Pillai, for respondent no .. 4.\n\nThe Judgmer:t of the Court was delivered by\n\nKRISHNA IYER, J. The dual prayers in the election petition, F by the worsted appellant, related to (a) invalidation of the 1st respondent's election; and (b) the further submission that inst.e:id, the petitioner/appellant be declared successful from the 12-Saiigrur Parliamentary constituency. The petition was dismissed by the High Court and the appellant has repeated both his reliefs in this civil appeal.\n\nHowever, by the time the appeal came up for hearing, the J st respondent, the returned candidate, passed away, but Hari G Agrawala, Advocate, has sought to appear for an elector from the constituency, on the score that the whole constituency is, a sense, before the Court and anyone from the constituency is entitkd to oppose the election petition and also the election appeal. There is no doubt that the democratic order sustains itself on the rectitude at the polls and disputes affecting elections are not like private litigation but of public concern. Viewed thus. the H question raised is nm free from do~.1bt and indeed it may be appropriate for Parliament to consider whether a provision analogous to\n\ns. 116 of the Representation of. the People Act, 1951 {hereinafter called the Act, for short) enablmg the constituency to be' alerted and to int;,, rvene even at the appellate level, should not be explicitly provided for, as at the trial stage.\n\nBe that as it may, we do not think it necessary to do anything more than hear Shri Agrawala more as amicus curiae than by any right inhering in an elector to intervene in the appeal.\n\nThe decisions brought to our notice do not clothe an officious elector with a right to be impleaded in appeal pro bono publico, absent express words to that effect. At the close of the appellant's submissions we did not f.eel the need to hear Shri Agrawala, since nothing in the persuasive arguments of Shri Hardev Singh induced us to alter the finding of the High Court on the sole and central issue of a right to recount.\n\nThe 111w regarding recount is, by now, well settled although defeated parties are not disenchanted from challenging the validity of the count through election petitions and persistent appeals.\n\nOn the other hand, election petitions make averments manipulated to meet the requirements each new decision insists on.\n\nEven so, the facts of this case-not the merits of the claim-prompt us to make a pertinent observation.\n\nWhen the primary grievance of a party is error or other vitiating circumstance in the count and some ground not 'frivolous or unreasonable' exists, many candidates 1rek into the High Court complaining of ignored demands for a fresh countin?, despite the existing guidelines in this bel1alf.\n\nThe circumstanc' •. , present here constrain us to make some concrete observations on the subject at a later stage in the hope that election authorities will respond sensitively on demand and reduce, by ready recount, the avoidable feeling of injustice of rebuffed rivals in a close contest.\n\nThe volume of election litigation may well shrink given more creative imagination and liberal approach in the exercise of powers under r. 63 of the Conduct of Elections Rules, 1961, instead of being rigid, resistant and indifferent.\n\nA stitch in time saves nine.\n\nFACTS\n\nA plurality of five candidates ran for the 12-Sangrur parliamentary seat in Punjab in the General Elections held in March 1971. (Sad that we are in 1975, interlocutory litigative episodes having spun to such length despite only a simple issue of recount being involved in the whole case?) TI1e only two contestants who hotly and hopefully battled for success were the petitioner-appellant, the candidate of the Akali Dal and respondent no. 1, the nominee of the Communist Party of India.\n\nT.he total votes polled were of the order of 3,44,073 cf whicb 7,663 ballots were invalidated.\n\nThe tiny margin of 210 votes, by which respondent no. 1 was declared successful, apparently appetised the appellant into attacking the methodology, arithmetic :md impartiality of the count and, indeed, the High Court went half-way with him on this score, as we will presently discuss.\n\nEven at the time the cog.nting was completed on March 12. 1971 the petitioner presented an application to the Returning Officer demanding a recount.\n\nOn some minor technical ground the application was\n\nheld premature, the formalities of completing Form 20 not having been gone through.\n\nHowever, soon after the announcement of the . votes polled by each candidate under sub-r. ( 1) of r. 63 of the rules, the petitioner made a second, timely, application for recount under sub-r. (2) of that rule..\n\nThe Returning Officer, however, reje<; ted this application also although here were sat out several - grounds, some of which are the same as those urged in the election petition itself.\n\nThe petitioner, however, moved the Election Commis.sion for a recount under sub-r. ( 1) of r. 93.\n\nThe Commission 'having been satisfied that the Inspection, as prayed for by the appellant, is necessary to further the ends of justice without, at the same time, violating the sc:crecy of the ballot' directed the District Election Offi~ cer of Sangrur District to open the sealed box of votes polled in favour of the candidates in respect of 86-Dhuri Assembly Constituency, a segment of 12-Sangrur parliamentary constituency, and the' paekets containing the rejected votes of the Sangrur Parliamentary Constituency and p1; rmit the appellant to inspect them.\n\nHowever, this Jpention was not gone through since the High Court, when moved by writ petition, stayed the order of the Commission; and, thereafter, a regular elec1ion petition was filed where the, whole focus was turned on the issue of recount.\n\nThe various gi'ounds warranting a recount put forward by the petitioner were duly denied by th1; 1st respondent. The limited recount of one of the segments of the Parliamentary constituency, namely, Sherpur, was allowed by the High Court and affirmed by a consent order by this Court, amplifying the recount to cover the votes of both the contestents.\n\nThis revealed some errors but did not produce the desired result of tilting the scales and the petitioner pressed for a wholesale recount all.egir:g serious infirmities which we will presently refer to.\n\nThe petitioner has set out as full a statement as he could of the material facts and particulars on which he relied in his election petition.\n\nThe prejudicial features about the telling process were both general and segmantwise.\n\nLet us take a look at them.\n\nThe Akali Dal w~ the ruling party and the subordinate services had pressed militantly for increased dearness allowance and the State Government is alleged to have rejected the plea even for interim relief, with alleged hostile repercussions :\n\n\"The hostile attitude of the Subordinate Services Federation and its employees against the Punjab Government and the ruling party of which the Petitioner was a candidate had prompted the counting assistants and the counting supervisors at different stations to act ma!afidely, arbitrarily and discriminately in the scrutiny, counting and bundling of the votes at the different centres and it was for this reason that whereas the ?etitioner had received a majority of votes but in the counting of the votes which was done in an unfair, uniust, illegal and malafide manner, the Returning Officer, Shri C. D.\n\nCheema, declared resoondent No. 1 electeld though in fact he had not secured majority of votes.\n\nPrompted 1:zy the same animus,\n\n\"the counting agents of the petitioner were not llowed any opportunity to inspect and note the serial numbers of the ballot papers which had been either illegally rejected though in fact polled in favour of the petitioner or wrongfully accepted and counted in favour of the returned candidate. This request of the counting agents of the petitioner was turned down on the plea of secrecy of votes and the counting agents were told by these assistants and other staff that they had been directed not to allow any counting agents or candidate' to know or note down the serial numbers of the ballot papers.\"\n\nAdmittedly, certain reforms had been made in the manner of mixing all the ballot papers and the mechanics of counting and bundling.\n\nThe serial number of the ballot was no longer printed on its face but on the reverse which disabled identification of the said number by the telling agents of the candidates.\n\nThese mutations in methodology were motivated by the need to secure better the secrecy of the vote, a sanctified principle of free elections, and applied to the whole country.\n\nBut the petitioner was aggrieved that his men could not note the serial numbers and the new method threw hurdles in the way of proper check bi1y the telling agents of the scrutiny of the voting papers.\n\nThe erection petitioner (vide para 9 of the petition) proceeded to particularise the prejudice he suffered, Assembly constituency-wise, and claimed that the result of the poll had been materially and adversely affected thereby.\n\nHe has specified distinct and different grounds regarding the various 'segments' or Assembly constituencies and naturally he cannot telescope or mix up these distinct mischiefs or mistakes or switch grounds from one to . the other.\n\nWe will examine' the omnibus criticisms and special complaints voiced in the petition against the background of a brooding fear of a negligible lead the 1st respondent had obtained as being possibly due to unwitting error iu the considerable, continuous counting simultaneously on several table:s, in envfronment not altogether tranquil.\n\nThe petitioner levelled many general accusations, apart from _bias qf the counting staff, about the whole process of counting and has examined P.W. 5, the Returning Officer, to substantiate these infirmities.\n\nThe witness did candidly admit that he did not do any 5% test-check or any other random count.\n\nHad he been faithful to the instructions in the Handbook of Instructions issued, he might have acted differently.\n\nFor, the instructions contained in dause (nn) of para 17 of the Procedure for Counting given at p. 7 4 of the Handbook for Returning Officers, runs thus :\n\n\"To ensure further accuracy in the counting of votes, five per cent of the total number of bundles of valid ballot\n\npapers of the different contesting candidates s?all be counted by you. You wm make your selection of thIS five per cent in such a manner that it contains bundles pertaining to th<: different contesting candidates.\" .\n\nP. W. 5 was unmindful of this guideline, which was a faux pas.\n\nWhile we a:re not disposed to direct a recount solely on the basis of this peccadillo, we stress the need for strict !l-dherence to instructins calculated to make returns error-proof by officers concerned. Cavalier\n\nattitude or jaded indifference cannot be condoned.\n\nThe petitimr has itemised separate infirmities in regard to each segment witl1 inventive ability and imaginary precision.\n\nBut W<~ are not inclined to attach weight to these seeming grievances in .. the light of P. W. S's clear testimony that barring the requests for recount 'no complaint of any kinli was voiced before me by anyone in connection with the counting of votes'.\n\nIndeed, he added : 'no complaint regarding any official was received from the Akali party during the election campaign in this constituency'.\n\nDisposed, as we are, to accept this evidence, we find no force in the petitioner's be wailing about official bias and violation of rules.\n\nOne complrunt which needs mention is that the counting officials declined to disclose the serial numbers of voting papers which were objected to. It is true that there is a clear departure in the present system, rec1ntJiy introduced, whereby serial numbers are printed on the reverse so as not to be visible on the face.\n\nThis is intended to ensure secrecy of the ballot.\n\nMay be that in consequence candidates who challenge illegal rejection or reception of votes may not be able to furnish. the serial numbers of the ballot papers in thdr election petitions or elsewhere. Some rulings of this Court (see for eg. J. B. Singh v. K.\n\nBehari) (1) based on the earlier practice of printing serial ntumbers had indicated the need to give these numbers to persuade 1he, Court to grant a recount. The change in the method of printing the serial numbers obviously makes it difficult to observe what is at the back of tile\n\npaper and we agree that this omission cannot go against an otherwise well-grounded request for inspection of ballots by court.\n\nJudicial ; approach must be readjusted to the new bal'lot printing.\n\nBut the question is, has the appellant rested his bare wish on other telling testimonial basis - Noni~ that we can discern. Nor can the reform in the numbering on the back of the ballot be a reason for recount.\n\nSeveral issues were struck and an enormous volume of evidence came on record around the core demand for recount and the Returning Officer, a key witness in the case, P.W. 5, was also examind. . We have th~ additional circumstance of an application for an mtenm count which was allowed partially with reference to Sherpur censtituency (a segment of the concerned parliamentary constituenc:y).\n\nWhile many issues related to some facet or other of the flaws in the counting, the highlight of the discussion by the trial Court was around issue no. 6 : ------\n\n(1) (1970) 1 S.C.R. 852.\n\n\\ ,\n\n\"Is the petitioner entitled to insptction, secrutiny and recount of tho ballot papers and, if so, to what ex; tent ?\" The interlocutoriy order really covered the crucial issue aforesaid.\n\nThe court held that a case for inspection and scrutiny of votes had been made out and observed :\n\n\"Issue no. 6 is, accordingly, found in the petitioner's favour and the interests of justice require that the inspection\n\n~, nd scrutiny prayed for be allowed.\"\n\nAlthough this might appear to be widely worded, the Court has confined that scope of this recount by a cautious direction :\n\n\" .. since the petitioner's allegation with regard to the rejection of such votes which do not bear die prescribed signature is confined to the Sherpur Assembly constituency alone and the number of such votes is stated to be 450 ... l consider it expedient at this stage to inspect and scrutinise only the petitioner's rejected votes relatin~ to that segment of the parliamentary constituency.\"\n\nAs earlier noticed, on appeal to the Supreme Court, the inspection and scrutiny was widened to cover the 'rejected' ballots oi both candidates.\n\nThe main ground which appealed to the High Court in making this order for a fresh inspection, scrutiny and recount of the She:rpur segment was the alleged illegal rejection of votes on the score that the signature of the Presiding Officer was absent on the ballot paper.\n\nThe Court construed r. 5 6 of the rules in the light of r. 38 and took the view that the ballot paper shall not be rejected merely on the ground of such a formal defect as the accidental omission of the signature of the Presiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertence or lapse of the Presiding Officer or the Polling Officer. This approach is sound in law and a recount was rightey undertaken.\n\nHowever, the number of totally rejected ballot papers of all the candidates when subjected to a repeated scrutiny yielded disappointing results from the point of view of the petitioner. Out of 1096 rejected ballot papers only 17 c!Qimed by the petitioner and 7 by the 1st respondent were founC: fa\"u!ty.\n\nOne of the rejected papers of the petitioner was mutilated and its rejection was thus justified. The net result was\n\ntha~ the petitioner gained 16 votes and the 1st respondent 7.\n\nThe le::id being only 9, proved colourless so far as the conclusion was concerned. Undaunted by the flimsy difference, the petitioner hopefully urged rhat the other segments of the Parliamentary constituency shculd be similarly put through a second inspection and recount.\n\nThe basis being jejune. the learned Judge declined the request. However, the general contentions raised by he petitioner about the unfair counting and bi<1:; ed processing were' examined by the High Court.\n\nThose contentions were :\n\n\"1. The attitude of the countinl! staff was hostile to the\n\npetitionr and his party. -\n\n2. The petitioner's votes wre rejected for. want of ~1e A mark or signature prescnbed under section 83, wh1fo\n\nsimilar votes of the respondent Teja Singh Swatantar were accepted.\n\n3. That the votes of the petitioner were wrongfully put\n\nin the bundles of the respondent No. 1 to inflate his count.\n\n4. That a number of votes marked in favour of the petitioner were rejected simply because they were smudge:d due to folding of ballot papers.\n\n5. That some of the votes counted for the contesting res-\n\nJJOndent were invalid because of multiple markings while others were mutilated and the markings thereon C did not clearly indicate for whom they had oeen cast.\"\n\nThe Court negatived the charges on sound grounds and we are disposed to agree.\n\nWe feel, with the learned Judge, that had there been any manipula.tion by the counting stafl' the matter would have been immr.tliately taken to the notice of the Returning Officer and reference to it would have been made in the two applications to D the Returning Officer for recount or at least in the applica.tion to the Election Commission for inspection made on March 17, 1971.\n\nTheir silence really silences the' grievance.\n\nIndeed, it must be stated with satisfaction that although government officials at the subordinate level have been, time and again, going on strikes, starting agitations and making demands almost everywhere in the country, hardly any serious or widespread instance of foul plaJy has been established in E their functioning in the election proce§s over the last span of a quarter of a century. Moreover, the contention of biased behaviour of the counting staff is nailed by the revealing accuracy disclosed in the recount of the Sherpur segment and the marginal error being more or less noticed in the case of both candidates.\n\nThe activist, non-partisan presee of senior officers to supervise the counting and deciding of disputes regarding the reception and rejection of vores F etc., was a reassuring factor. The conclusion of the learned Judge, which meets with our assent, was expressed thus :\n\n\"In view of these facts, I am of the opinion that no case has been made out for any further inspection or scrutiny of ballot papers, especially when we find that the claim of the petitioner that in Sherpur segment as many as 450 votes G polled by him had been rejected solely on the ground! that they did not bear the prescribed signature or the mark, but 200 similar votes were counted for the respondent, stands falsiified by the scrutiny that has already been undertaken.\n\nScrutiny of votes of the remaining segments will be nothing but a fishing or roving enquiry which is not permitted by ~~ H\n\nThe general charge of hostility of subordinate governme:nt staff in counting is unproved, as already held. Even so, we must underscore\n\n. Bf\\L?EV SINGH v. TEJA SINGH (Krisna Iyer,/.) 389\n\nthe ut .importance of the indepenece, fai{ness· and. activism of' the ElectiOn personntl from the Comm1ss1on to 'the coUiitillg-staff. _ ff their discretion is sensitive to the party in ppwer -Qr' their antipathies are inflamed during election time, th.e cherished parliamentary 51JStem will be the casualty. Every conscientious citizen has a pJJblic duty to desist from. making reckless mud-slinging and tendentious smearing_ of the men who makes the machinery, promoted by chimerical doubts,· and there is cast a countervailing obligation on all who make up the election personnel to be knowledgeable, sensible, sympathetic, sensitive and stem to every candidate alike. Even seeming stiffness on chumming up ot ignorant obstinacy will discredit the instrument.\n\nIn the Returning Officer's evidence (as P :w. 5) we find an obscure reference to a telephonic call by the Prime Minister even as the counting was going on. He deposed :\n\n\"It is correct that when the counting of postal ballot papers was going on, D. S. P. Charan Singh of the Punjab Potice, who was then on duty at the gate, told me that there . was a telephonic call for me. He whispered this in my ear.\n\nI, hoWever, asked him to say it loudly in the presence of . everyone present from where that call was. He then said it was froin the Prime Minister of India.\n\nAs I was busy in counuag I didnot consider it proper to attend to the telephonic call and I refuseti to go to the telephone. I also did _.not ask all\\yone to receive the message meant for me. I did not instruct Shri Sher Singh, who was then the Sub-Divisional _Magistrate, Sangrur, to go and hear that telephone and I do not know whether he ever received any telephonic message.\"\n\n:If this were true, it was unfortunate tosay the least. If it were untrue, the _officer's glib-tongued testimony should have invited censure. Any way, there is rlo tangible trace, anywhere in the record, even to a vague suggestion of influencing the counting by the Prime Minister. It also looks incredible especially since neither of the serious contestants is\n\n3: Congress candidate. Frivolous suggestions linking persons in high office should not be allowed to be flung in court, without sound basis previously laid.\n\nThe same witness has unburdened his bosom in the witness box to swear that the Education Minister of the State (the ruling -party was the Akali party and his quondam Personal Assistant was the candidate in the constituencv) desired to 'see' him when the fever of election was on. P.W. 5 said on oath in cross-examinatioJ! :\n\n\"It is CC?rrect that S. Surjit Singh, P.W. 4, who was the then Educa1ion Minister, Punjab, visited Sangrur in the course of the election campaign several times. I do not know ·· if S. Surjit Singh was camping at Sangrur on 10th, 11th or 12th of March, 1971. I, however, recollect that on the evening of 11th March, 1971, the Superintendent of Police told me that S. Surjit was at his residence. The Superintendent of Police did not give me any message and merely said that S. Surjit Singh wanted to see me. I, however, could not see\n\nhim as I was busy at the time and later when I went to the residence of the Superintendent of Police, I foun4 that Si.\n\nSurjit SiB~ had already left.\"\n\nIf it is true, it is unhappy, but it has the flavour of a fiction. Further if it was true, it ave the appearance to outsiders of pressure by Minis- . ters on the poll officers-a vice which must be condemned. If it were untrue, the officer has tlamned an innocent Minister.\n\nAnother fatal blo\\y to the plea for recount of other segments pressed by the petitioner-appellant needs mention. We have already stated that the petitioner, with what would appear to be uncanny intuition, stated in para 9 of his petition, details of wrongful reception of invalid votes etc., with numerical precision and wonder of observation possible under the present system of counting only by resort to resourceful fictfoii or extra-sensory perception. Disingenuous awrments do not promote prospects of judicial recount and will be dismissed as devices to eiomply with requirements suggested in some ruling or other.\n\nCounsel did press before us many citations, a few of which alone we propose to refer to, the ground covered being overlapping, the law laid down, the sam1~, and the determining role being the judic:ial response to the key facts of each case. In Jagjit Singh(1) this Court stated:\n\n\"Vague or general allegations that valid votes were improperly rejected, or invalid votes were improprly accepted, would not serve the purpose which s. 83(1)(a)\n\nhas in mind.\n\nAn application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the\n\nintere!ts of justice, the ballot boxes should be :~ pected or not.\n\nIn dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and i.t is always to be borne in mind that the Star\n\ntutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes for their proper .counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to if\\spect the ballot boxei; and consider his objections about the improper acceptance or improper rejection of votes tendered bv voters at any given election: but in considering the requirements of justice, care must be taken to see that el~:tion\n\npetione; s do not get a chance to mke a roving or fishing enqmry m the ballot boxes so as to JUStify their claim that the returned candidate's election is void .. We do not pro- JJOSe to lay down any hard and fast rule in this matter: indeed. to attempt to lay down such a rule would be im:xpedient and unreasonable.\"\n\n(1) AJ.n.. 1966 S.C. 774, 783.\n\nBALDEV SINGH v. TEJA SINGH (Krishna Tyer, J.) 391 ·\n\nThe law has been. the same, before and after (Ram Sewak Y adav v.\n\nHussain Kamil Kidwai(l); and Swami Rameshwaranand v. Madho Ram(2). A judicial recount is not a matter of right (Sumitra Devi\n\nv. Sheo Shankar( 3) and convincing, not conclusive, specificity is of the essence.\n\nIn the light of what has been said above and with due regard to the findings of the High Court, we are unable to grant a recount n a comprehensive scale. It is noteworthy that P.W. 5 had heard both sides on the demand for a recount. He has sworn significantly;\n\n\"No request was, however, made to me by the petitioner or his counsel S. Gurdev Singh for check count or random count.\n\nI vehemently deny the suggestion that the order Exhibit P.W. 5/b.1 was not dictated in open soon after the announcement of the verbal order rejecting the application: for recount. While arguing the application for recount the petitioner's counsel said that the recount may be confined only to the votes relating to Dhuri Assembly constitve!J.C}\"\n\nand his request for recount of the remaining votes may be ignored.\"\n\nEven in the application to the Election Commission the plea for inspection of the used ballot papers is primarily confined to Dhuri Assembly segment and the rejected ballots of other assembly segments . . Thus it is a fair inference to draw that the grievance centred round\n\nthe Dhuri segment. In regard to that plea, the averment in para 9(a) gives details including figures, absence of seal and other irregularities like multiple marking and voting. Not a scintilla of evidence on which a court could act is present on the record prima facie to prove what has been alleged. Therefore the refusal of recount was not improper.\n\nThis case has made us reflect anxiously on the dichotomy in the matter of recount between the oounting station and the court hall.\n\nWe think it necessary to elucidate the legal lines to be drawn at the two stages, as this is a fit case which calls for such demarcation.\n\nThe largest democracy in the world, India, naturally has the most numerous electorate: for a territorial constituency. Several thousands to a few lakhs of ballots for a constituency are polled and have to be inspected and counted in a rapid process; computers and like electronic devices which achieve in a twinkle what manual eyes and hands take Joni! hours to perform are denied to us due to underdevelopment and indig:ence. ffut we have human resources in abundance, to sort out, bundle up, count, check, scrutinize and so on.\n\nOur poll finale relies on human power, and judging by the millions of votes which have passed through the assembly-line processes of mixing. bundling, scrutinising, counting and rebundling-what with mammoth numbers and continuous work-the errors are microscopic. Ttli:;\n\ntribute to Indian ability goes to the lesser level staff-the clerks and -----------\n\n(!) (1964) 6 SCR 238;\n\n(2) 40 E.L.R. 281.\n\n(3) A.I.R. 1973 S.C. 215.\n\nteachers, say-who bear the mechanical brunt of the Himalayan labours' Wh1:n colossal heaps of votes are processed, the tellers may make chance mistakes. Even computers are not totally error-proof and, tu err is human, physically fatigued and brain-fagged as the:y may be occasionally. Scrutiny by vigilant officials and test-cecks .may be good but jaded spirits. caue sips .. Co1!1placen~ assumption of Jpe!1'ection when the operation rs gigantic, is a frailty of abd'urate mmds.\n\nThat is why realism has induced r.63 and issuance of instructions to returning officers, rooted in practical wistiQlll. Given lively realism all'd imaginative understanding in the Returning Officers, many honestly sceptical and legitately suspicious candidates who have lost the election may be stilled in their doubt by a recount, and the wier, after all, has no vested interest in error and cannot reasonably ob1ect.\n\nSuch is the interpretative perspective, r.63 which has wrongly been lost sight o~ by P.W. 5, the Returning Officer, in the present case.\n\nWe' frown upon b:ivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of r.63 that allowance . of recount is not the exuption and refusal is restricted to cases where\n\nthe demand itself is 'frivolQW;' or 'unreasonable'. These are strong words. The circumstances off each case decide. Where the margin of D difference is minimal, the claiiu. fot. a fresh count cannot be summarily brushed aiside as futile or trumpery'. If, as in $is case,, for the Sherpur segment, a uniform view, founded in legal error, has led to wrong rejection of votes, rectiftcation by a recount on tl)e spot, when a demand is made, would have been reasonable. If formal defe, ts had been misconstrued at some table as substantial infirmities, or vice versa, resulting in wrongful reception or rejection, thetsooner it was set E right the bt:tter, especially when a plea for a second inspection had been made on the spot. Many practical circumstances or legal misc.onceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial, d1t'.ck. course, baseless or conoocted claims for recount or fabricated grounds for inspection or specious complaints of mis-·\n\ntakes ini counting when the . gap is huge are obvious caises of F frivolous and unreasonable demands for recount. Malafide aspersions on counting staff or false and untenable objections regarding validity uf votes also fall under the same category. We mean to be illustrative, ' .. not exhaustive, but underline the need, in appropriate cases, to be reasonably liberal in re-check and re-count by Returning, Officers. After all, fairness at the polls must not only be manifest but misgivings G at the process must be erased at the earliest. Indeed the Instruc· tions to Officers are fairly clear and lay down sound guidlines.\n\nJudicial power to direct insrection and recount is undoubted but will be exercised sparingly.\n\nIn a recent decision Chanda Singh v.\n\nChoudhary Shiv Ram Verma(!) this Court observ.cd : . . \"A artain amount of stability in the electoral process H is essential. If the oounting of the ballots is interfered with by too freque_nt and ftjppant recountJ by courts a new threat\n\n(I) Civil Appeal No. 1185 of 1973, do:idccl on 20-12-1974; '\n\nBALDEV SINGH v. TEJA SlNGH (Krishna Iyer,/.) 393.\n\nto the certainty of the poll system is introduced through the judicial instrument. More-over, the secrecy ofl the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic orer by injecting widespread scope for reopening of decla~ returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illelgality . or other compulsions of justice necessitating such a dr~tic step.\"\n\nThis implies no . break from the liberaJ stance. WQ have indicated io.r Returning Officers. Election petitions come to Coutt after a month ·and a halfl and ripen for trial months later and then he appeal, sta- . tutorily vested, inevitably follows. In this Operation I!.itigatjon, which is necessarily protracted, liberal recount or lax re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after elections are over, $<Wemments formed and\n\nlegilatures begin to function. Moreover, while a recount, within the .\n\ncounting station, With the entire machinery familiar with the process still available at hand and operational, is one thing, a reinspection and recount, which is an elaborate undert\"aking with mechanics and machinery of a specialise.d nature and which cannot be judicially br()Ught into existence without an amount of time, toil . and expense is a diffrent thing. This Court has laid down clear principles on the subject, meetin, g the ends of justice, but, without opening . the flood• gates of recounts on flimsy grounds. Less election litigatioi:i is a sign of the pe'Ople's adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of r.63, the relevant wholesome instructions by the Commission and the rulings of this Court, 'harmonise with the overall considerations of law and .democracy.\n\nComing to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and .recount, particularly after the Sherpur experiment, exist. Although .we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check •or partial recount, proceeding to a fuU rooount it serious errors were found, we are inclined to agree with the High Court\" there being no reason to reverse its elaborately discussed conclusions,. and the relief of recount was rightly rejected. NecessarHy, no foundation for a declaration in the appellant's favour has been laid and so we dismiss the appeal but, in the circumst3f!Ces, without costs ..\n\nAppeal dismissed.\n\nV.P.S.", "total_entities": 53, "entities": [{"text": "BALDEV SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "BALDEV SINGH", "offset_not_found": false}}, {"text": "TEJA SINGH SWATANTAR (DEAD) & ORS", "label": "RESPONDENT", "start_char": 17, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "TEJA SINGH SWATANTAR (DEAD) & ORS", "offset_not_found": false}}, {"text": "January 24, 1975", "label": "DATE", "start_char": 53, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "January 24, 1975\n\n38 l\n\n[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 78, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 95, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 118, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Election-Conduct of Election Rules", "label": "STATUTE", "start_char": 140, "end_char": 174, "source": "regex", "metadata": {}}, {"text": "20-12-1974", "label": "DATE", "start_char": 4827, "end_char": 4837, "source": "ner", "metadata": {"in_sentence": "1185 of 1973, decided on 20-12-1974, followed."}}, {"text": "Election Commission", "label": "ORG", "start_char": 5759, "end_char": 5778, "source": "ner", "metadata": {"in_sentence": "(387 E-HJ\n\n( 4) Even in the application to the Election Commission the plea for inspection of the used ballot papers was primarily confined to one Assembly segment and the rejected ballots of other assembly segments."}}, {"text": "Punjab and Haryana High Court", "label": "COURT", "start_char": 6304, "end_char": 6333, "source": "ner", "metadata": {"in_sentence": "From the judgment and order dated the 18th October, 1972, of the Punjab and Haryana High Court in Election Petn."}}, {"text": "Hardev Singh", "label": "LAWYER", "start_char": 6368, "end_char": 6380, "source": "ner", "metadata": {"in_sentence": "Hardev Singh, \"11'1.", "canonical_name": "Hardev Singh"}}, {"text": "S. Gupta", "label": "LAWYER", "start_char": 6389, "end_char": 6397, "source": "ner", "metadata": {"in_sentence": "S. Gupta, and R. S. Sodhi, for the appellant."}}, {"text": "R. S. Sodhi", "label": "LAWYER", "start_char": 6403, "end_char": 6414, "source": "ner", "metadata": {"in_sentence": "S. Gupta, and R. S. Sodhi, for the appellant."}}, {"text": "S. C. Agarwala", "label": "LAWYER", "start_char": 6436, "end_char": 6450, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwala.. for respondent no."}}, {"text": "M. R. K.. Pillai", "label": "LAWYER", "start_char": 6476, "end_char": 6492, "source": "ner", "metadata": {"in_sentence": "M. R. K.. Pillai, for respondent no .. 4."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 6564, "end_char": 6576, "source": "ner", "metadata": {"in_sentence": "The Judgmer:t of the Court was delivered by\n\nKRISHNA IYER, J. The dual prayers in the election petition, F by the worsted appellant, related to (a) invalidation of the 1st respondent's election; and (b) the further submission that inst.e:id, the petitioner/appellant be declared successful from the 12-Saiigrur Parliamentary constituency.", "canonical_name": "KRISHNA IYER"}}, {"text": "Hari G Agrawala", "label": "OTHER_PERSON", "start_char": 7089, "end_char": 7104, "source": "ner", "metadata": {"in_sentence": "However, by the time the appeal came up for hearing, the J st respondent, the returned candidate, passed away, but Hari G Agrawala, Advocate, has sought to appear for an elector from the constituency, on the score that the whole constituency is, a sense, before the Court and anyone from the constituency is entitkd to oppose the election petition and also the election appeal."}}, {"text": "Parliament", "label": "ORG", "start_char": 7626, "end_char": 7636, "source": "ner", "metadata": {"in_sentence": "the H question raised is nm free from do~.1bt and indeed it may be appropriate for Parliament to consider whether a provision analogous to\n\ns. 116 of the Representation of."}}, {"text": "s. 116", "label": "PROVISION", "start_char": 7683, "end_char": 7689, "source": "regex", "metadata": {"statute": null}}, {"text": "People Act, 1951", "label": "STATUTE", "start_char": 7720, "end_char": 7736, "source": "regex", "metadata": {}}, {"text": "Agrawala", "label": "OTHER_PERSON", "start_char": 8012, "end_char": 8020, "source": "ner", "metadata": {"in_sentence": "Be that as it may, we do not think it necessary to do anything more than hear Shri Agrawala more as amicus curiae than by any right inhering in an elector to intervene in the appeal."}}, {"text": "Hardev Singh", "label": "LAWYER", "start_char": 8421, "end_char": 8433, "source": "ner", "metadata": {"in_sentence": "At the close of the appellant's submissions we did not f.eel the need to hear Shri Agrawala, since nothing in the persuasive arguments of Shri Hardev Singh induced us to alter the finding of the High Court on the sole and central issue of a right to recount.", "canonical_name": "Hardev Singh"}}, {"text": "Conduct of Elections Rules, 1961", "label": "STATUTE", "start_char": 9690, "end_char": 9722, "source": "regex", "metadata": {}}, {"text": "Punjab", "label": "GPE", "start_char": 9889, "end_char": 9895, "source": "ner", "metadata": {"in_sentence": "FACTS\n\nA plurality of five candidates ran for the 12-Sangrur parliamentary seat in Punjab in the General Elections held in March 1971. ("}}, {"text": "Akali Dal", "label": "RESPONDENT", "start_char": 10224, "end_char": 10233, "source": "ner", "metadata": {"in_sentence": "TI1e only two contestants who hotly and hopefully battled for success were the petitioner-appellant, the candidate of the Akali Dal and respondent no.", "canonical_name": "Akali Dal"}}, {"text": "Communist Party of India", "label": "ORG", "start_char": 10275, "end_char": 10299, "source": "ner", "metadata": {"in_sentence": "1, the nominee of the Communist Party of India."}}, {"text": "Sherpur", "label": "GPE", "start_char": 12475, "end_char": 12482, "source": "ner", "metadata": {"in_sentence": "The limited recount of one of the segments of the Parliamentary constituency, namely, Sherpur, was allowed by the High Court and affirmed by a consent order by this Court, amplifying the recount to cover the votes of both the contestents."}}, {"text": "Akali Dal", "label": "PETITIONER", "start_char": 13096, "end_char": 13105, "source": "ner", "metadata": {"in_sentence": "The Akali Dal w~ the ruling party and the subordinate services had pressed militantly for increased dearness allowance and the State Government is alleged to have rejected the plea even for interim relief, with alleged hostile repercussions :\n\n\"The hostile attitude of the Subordinate Services Federation and its employees against the Punjab Government and the ruling party of which the Petitioner was a candidate had prompted the counting assistants and the counting supervisors at different stations to act ma!afidely, arbitrarily and discriminately in the scrutiny, counting and bundling of the votes at the different centres and it was for this reason that whereas the ?", "canonical_name": "Akali Dal"}}, {"text": "Punjab Government", "label": "ORG", "start_char": 13427, "end_char": 13444, "source": "ner", "metadata": {"in_sentence": "The Akali Dal w~ the ruling party and the subordinate services had pressed militantly for increased dearness allowance and the State Government is alleged to have rejected the plea even for interim relief, with alleged hostile repercussions :\n\n\"The hostile attitude of the Subordinate Services Federation and its employees against the Punjab Government and the ruling party of which the Petitioner was a candidate had prompted the counting assistants and the counting supervisors at different stations to act ma!afidely, arbitrarily and discriminately in the scrutiny, counting and bundling of the votes at the different centres and it was for this reason that whereas the ?"}}, {"text": "C. D.\n\nCheema", "label": "OTHER_PERSON", "start_char": 13936, "end_char": 13949, "source": "ner", "metadata": {"in_sentence": "etitioner had received a majority of votes but in the counting of the votes which was done in an unfair, uniust, illegal and malafide manner, the Returning Officer, Shri C. D.\n\nCheema, declared resoondent No."}}, {"text": "Akali party", "label": "ORG", "start_char": 17866, "end_char": 17877, "source": "ner", "metadata": {"in_sentence": "Indeed, he added : 'no complaint regarding any official was received from the Akali party during the election campaign in this constituency'."}}, {"text": "(1970) 1 S.C.R. 852", "label": "CASE_CITATION", "start_char": 19955, "end_char": 19974, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 20987, "end_char": 21000, "source": "ner", "metadata": {"in_sentence": "As earlier noticed, on appeal to the Supreme Court, the inspection and scrutiny was widened to cover the 'rejected' ballots oi both candidates."}}, {"text": "She:rpur", "label": "GPE", "start_char": 21217, "end_char": 21225, "source": "ner", "metadata": {"in_sentence": "The main ground which appealed to the High Court in making this order for a fresh inspection, scrutiny and recount of the She:rpur segment was the alleged illegal rejection of votes on the score that the signature of the Presiding Officer was absent on the ballot paper."}}, {"text": "section 83", "label": "PROVISION", "start_char": 23008, "end_char": 23018, "source": "regex", "metadata": {"statute": null}}, {"text": "Teja Singh Swatantar", "label": "RESPONDENT", "start_char": 23059, "end_char": 23079, "source": "ner", "metadata": {"in_sentence": "want of ~1e A mark or signature prescnbed under section 83, wh1fo\n\nsimilar votes of the respondent Teja Singh Swatantar were accepted.", "canonical_name": "TEJA SINGH SWATANTAR (DEAD) & ORS"}}, {"text": "March 17, 1971", "label": "DATE", "start_char": 24025, "end_char": 24039, "source": "ner", "metadata": {"in_sentence": "We feel, with the learned Judge, that had there been any manipula.tion by the counting stafl' the matter would have been immr.tliately taken to the notice of the Returning Officer and reference to it would have been made in the two applications to D the Returning Officer for recount or at least in the applica.tion to the Election Commission for inspection made on March 17, 1971."}}, {"text": "D. S. P. Charan Singh", "label": "OTHER_PERSON", "start_char": 26785, "end_char": 26806, "source": "ner", "metadata": {"in_sentence": "He deposed :\n\n\"It is correct that when the counting of postal ballot papers was going on, D. S. P. Charan Singh of the Punjab Potice, who was then on duty at the gate, told me that there ."}}, {"text": "India", "label": "GPE", "start_char": 27095, "end_char": 27100, "source": "ner", "metadata": {"in_sentence": "He then said it was froin the Prime Minister of India."}}, {"text": "Sher Singh", "label": "OTHER_PERSON", "start_char": 27319, "end_char": 27329, "source": "ner", "metadata": {"in_sentence": "I did not instruct Shri Sher Singh, who was then the Sub-Divisional Magistrate, Sangrur, to go and hear that telephone and I do not know whether he ever received any telephonic message.\""}}, {"text": "Sangrur", "label": "GPE", "start_char": 27376, "end_char": 27383, "source": "ner", "metadata": {"in_sentence": "I did not instruct Shri Sher Singh, who was then the Sub-Divisional Magistrate, Sangrur, to go and hear that telephone and I do not know whether he ever received any telephonic message.\""}}, {"text": "S. Surjit Singh", "label": "WITNESS", "start_char": 28351, "end_char": 28366, "source": "ner", "metadata": {"in_sentence": "\"It is CC?rrect that S. Surjit Singh, P.W. 4, who was the then Educa1ion Minister, Punjab, visited Sangrur in the course of the election campaign several times."}}, {"text": "S. Surjit Singh", "label": "OTHER_PERSON", "start_char": 28511, "end_char": 28526, "source": "ner", "metadata": {"in_sentence": "I do not know ·· if S. Surjit Singh was camping at Sangrur on 10th, 11th or 12th of March, 1971.", "canonical_name": "S. Surjit Singh"}}, {"text": "10th, 11th or 12th of March, 1971", "label": "DATE", "start_char": 28553, "end_char": 28586, "source": "ner", "metadata": {"in_sentence": "I do not know ·· if S. Surjit Singh was camping at Sangrur on 10th, 11th or 12th of March, 1971."}}, {"text": "11th March, 1971", "label": "DATE", "start_char": 28633, "end_char": 28649, "source": "ner", "metadata": {"in_sentence": "I, however, recollect that on the evening of 11th March, 1971, the Superintendent of Police told me that S. Surjit was at his residence."}}, {"text": "S. Surjit", "label": "OTHER_PERSON", "start_char": 28693, "end_char": 28702, "source": "ner", "metadata": {"in_sentence": "I, however, recollect that on the evening of 11th March, 1971, the Superintendent of Police told me that S. Surjit was at his residence.", "canonical_name": "S. Surjit Singh"}}, {"text": "Surjit SiB~", "label": "OTHER_PERSON", "start_char": 28984, "end_char": 28995, "source": "ner", "metadata": {"in_sentence": "Surjit SiB~ had already left.\""}}, {"text": "Jagjit Singh(1", "label": "OTHER_PERSON", "start_char": 30157, "end_char": 30171, "source": "ner", "metadata": {"in_sentence": "In Jagjit Singh(1) this Court stated:\n\n\"Vague or general allegations that valid votes were improperly rejected, or invalid votes were improprly accepted, would not serve the purpose which s. 83(1)(a)\n\nhas in mind."}}, {"text": "s. 83(1)(a)", "label": "PROVISION", "start_char": 30342, "end_char": 30353, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna Tyer", "label": "JUDGE", "start_char": 31632, "end_char": 31644, "source": "ner", "metadata": {"in_sentence": "BALDEV SINGH v. TEJA SINGH (Krishna Tyer, J.) 391 ·\n\nThe law has been.", "canonical_name": "KRISHNA IYER"}}, {"text": "S. Gurdev Singh", "label": "OTHER_PERSON", "start_char": 32266, "end_char": 32281, "source": "ner", "metadata": {"in_sentence": "He has sworn significantly;\n\n\"No request was, however, made to me by the petitioner or his counsel S. Gurdev Singh for check count or random count."}}, {"text": "Dhuri", "label": "GPE", "start_char": 33011, "end_char": 33016, "source": "ner", "metadata": {"in_sentence": "Thus it is a fair inference to draw that the grievance centred round\n\nthe Dhuri segment."}}, {"text": "(1964) 6 SCR 238", "label": "CASE_CITATION", "start_char": 34522, "end_char": 34538, "source": "regex", "metadata": {}}]}
{"document_id": "1975_3_394_400_EN", "year": 1975, "text": "SALIM\n\nSTATE OF \\VEST BENGAL\n\n.fonuary 27, 1975\n\n(M. H. BEG, Y. V. CHANDRACHUD AND A. C. GUPH, JJ.]\n\nMaime11wu;;1' of lntunal Secul'ity Act. 1971-Words & phrases-Meaning of 'forthwith'-Ncm application of mind-A. vaila.?ility of alternative remedy of prosecution whethu imalidars detmtion.\n\nThe ordr of dtention was pas-1cl against the petitioner on 13-6-1972. 011 15th June the Dimict Magistrate rtporkd the fact of ma\\:ing the order to the Sta.le Government.\n\nSta.le GavernmenL approvtd the order on 21st June.\n\nIt wa> contended by the appellant.\n\n(!) Th<'t the Ditrict !\\fagistrate did not report the maki'lg of the order\n\n\"forthwith\" a' rquired by sction 30) and that the detention was, thcrdore. liable to be set aside.\n\n(2) Since the State Government rejected the represntation on the very\n\nnext day, it nm'! he helJ that it did not apply its mind to 1he representation.\n\n(3) The petitioner could have been proscnted for the acts attribu!ed to him and therefore could not be detained.\n\nDismissing the petition,\n\nHELD : I..aws o{ Preventive Dtention by which subjots are deprived of their\n\nprsonal liberty without the safeguards available in a judicial trial ought to be\n\ncoll'Strued with the grea:cst strictness. The delay on the part of the Di:; trict E Magistr.tte in reporting to the State Government the fact of making the detention order would inevitably curt:;, il the period available to th~ State Government for approving the detention ord•:r.\n\nSuh a delay may conceivably lead to a hurried and Cllrsory consideration of the propriety or justification of the order and tkreby impair a valuable safeguard available to the detenu.\n\nTherefore, he word 'forthwith' cannot he construed so as to permit indolence or laxi'.y on the part of the oflkcr charged with the duty of reporting the detention.\n\nHowever. reasonable allowance has to be made for unavoidable delays, always remembering that the detaining authority must explain any long delay by pointing out circum- F stances due to which the report 10 the State Government could not be made with the greatest promptitude.\n\nThe report was made to the State Government on 15th June which still left to it a margin of 10 days to consider the merits of the order. It cannot be said that the delay in making the report left to the State Government insufficient time to consider whether the order of detention should be approved.\n\nThe ordr was, in fact, approved on 21st June much before the expiry of the statutory period.\n\nThe order is dated 13th. The explan3tion of the Department that report could noc he mde on 14th due to ndminist•·:1tive G difficulties is acceptable. f'95 G: 396 F-G; 397 B-q\n\nThe cont, ention of the p.;:1itionr that since the Stat~ Government rjccted\n\nth~ representation the yery next day. it must be held that it did not <ipply its mmd to the representa!lon wrN negauved.\n\nThe length of time which a dcci sion takes <loes not necessari1y reffec1s 1~Jt: ~:t-i'e of 1Jp-n!\"Jr~;·..; hrouo:ht to bear nixn it. [399 Al • b\n\nThe cm1ltntion of t11c petiiianer tl1at he could have been prosernted H for the ai:ts attributed to him wa5 negatived on the ground that availability of an alternate remedy is not by itself an effective answer to the validity of the detention. [400 A-BJ\n\nORIGINAL JURISDICTION.: Writ Petition No. 506 of 1974 Petition U,1der Article 32 of the Constitution. D. N. Mukherjee and Gobind Mukhoty A.C., for the etitioner G. S. C. Chatterjee of Sukumar Basu & Co., for the Respondent.\n\nThe Judgment of the Comt was delivered by\n\nCHANDRACHUD, J.The petitioner, Skq.\n\nSalim, challenges by this petition under Article 32 of the Constitution an order of detention passed by the District M:igistrate, 24-Parganas, under the Maintenance of Internal Security Act, 1971. The order was vassed on June 13, 1972 avowedly with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies a•.1d services essential to the community.\n\nThe particulars furnished to the petitioner refer to two incidents of theft dated January 31 and Febnrary 23, 1972.\n\nThe former relates to a theft of underground copper cables and the latter to a theft of A.C.S.R. Coaductors.\n\nThe particulars further mention that on February 24, 1972 the petitioner and two of his named associates were found in possession of 30 K. Gs of stolen A.C.S.R. Conductors.\n\nSection 3 (1) of the Act empowers the Centml Government and the State Governments to pass orders of dete<ation for the reason;: therein mentioned.\n\nSecti.on 3 (2) confers power on District Magis- , trates, speci'ally empowered Additional District Magistrates and Commisstoners of Police to pass orders of detention for reasons specified therein.\n\nIf an order of detention is passed by any of these officers.\n\n\"hr. shall forthwith report the fact to the State Gover,1ment to which he is subordinate together with the grounds on which the order has been made, and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the mea.1time it has been . approved by the State Government : \" '\n\nffhat is the clear mandate of section 3 (3).\n\nThe District Magistrate, in the instant case, made the detention order on June 13, 1972 and on me 15th he reported the fact of making the order to the State Government. The question for consitleration, which has been argued with some fervour by the learned counsel appearing amicus curiae for the petitioner, is whether the District Magistrate can be said to have repbrtcd the making of the order \"forthwith\" as required by section 3 (3).\n\nLaws of preventive detention by which subjects are deprived of their personal liberty without .the safeguards available in a judicial trial ought to be comtrued with the greatest strictness.\n\nCourts must therefore be vigilant to ensure that the detenu is not deprl; ed of the modicum of rights a<ad safeguards which the preventive law itself affords to him.\n\nThe Maintenance of Internal Security Act contains what is evidently thought to be a scheme of checks and counter-checks by which the propriety or necessity of a detention order may at various\n\nstages be exami'.ted by various authorities. . If an order of deteni?n is made by ~. District Magistrate .or. a spec1alry. empowred _, Ad1t1onal Dis.trict Magistrate or a Comm1ss1oner of Police, he is required by section 3(3) to report \"forthwith\" to the State Government about he making of the order. The order c; lnnot remain in force for more tlrnn : 12 days or in the circumstances mentioned in the Proviso to section 3(3), for more than 22 days unless in the meantime it has been approved by the State Government. If the ordet is made o~ approved by the St•ate Government it must under section 3 ( 4) report the fact to the Central Government within 7 days. By sectio.u 10, save as otherwise expressly provided in the Act, the appropriate Government\n\nsh~U witpin 30 days from the date of detention under the order, place before the Advisory Board constituted under section 9 the grounds on which the order has b(:en made, the representation if a,1y m'ade by the detenu and in case where the order has been made by any of the officers specified \\111dcr section 3 (2), the report made by the officcr under section 3 (3). Section J 1 (1) requires the Advisory Board to submit its report. to the appropriate Government within 10 weeks from the date of detention.\n\nThis time-schedule, evolved r11 order obviously to provide an expeditious opportunity at different levels for testing the justification of the detention order has to be observed scrupulously and its rigour cannot be relaxed on any facile assumption that what is good if done within 7, 12 or 30 days could as well be good if done, say. withi'.1 JO, 15 or 35 days.\n\nThe requirement that the District Magistrate or the other officers malking the order of detention shall forthwith report the fact of making the order to the State Government can therefore admit of no relaxa, .. tion, especially because it has a distinct and important purpose to serv(:.\n\nThe 12 days' period which the Act in normal circumstances allows to the State Government for approving the detentio'.1 order is evidently thought to be reasonably' necessary for enabling the Government to consider the pros and cons of the order.\n\nDelay on the part of the District Magistrate or the other officers in reporting to the State Gov.::tll:· ment the fact of maki'.1g the detention order would inevitably aurtail the period available to the State Government for approving the detention order. The period of 12 or 22 days. as the case may be, whic:~ is referred to in section 3 ( 3) runs from the date on which the order of detention is made and not from the date on which the fact of makinii the order is reported to the State Government.\n\nSuch a delay may conceivably lead to a hunied and cursory consideration of the pro- priety or justification of the order and thereby impair a valuable safeguard available to the detenu.\n\nA liberal construction of the requirement that the officer makin~ the order of detention shall forthwith report the fact to the Sta:~ Government is therefore out of place.\n\n' Contending for the acceptance of the literal meaning of the word 'forthwith', counsel for the petitiO'.ler argues that administrative cxigen- .cies cannot ever be 'allowed to explain away the delav between the\n\na~:ing of .the detentin order and the report of it to the State Govem- --meiltt. . It is an esilabl!shed rule of construction that unless the language of the statute i.~ ambiguoo~, the words used by the Jegilature ought\n\nSALIM v. WEST BENOAL (Chandrachud, !.) 3 97\n\nto be given their plain, literal meao.1ing. But it is ei; iually important\n\ntilat by nq rule of construction ffi'ay the words of a statute be so interpretcd~.as to bring about absurd situations in practice. Ihe strangle-. hold of stark literalness has therefore to be avoided in order to give a rational meaning and content to the la'aguage used in the st11tute.\n\nThus, though the word 'forthwith' cannot be construed so as to ptJrmit indolence or laxity on the part of the officer charged with the duty of reporting the detention to the State Government, reasonable allowa.1ce has to be m-ade for unavoidable delays, always remembering that the detaining authority must explain any long delay by pointing out circumstances due to which the report to the State G•wernment could not be ma'1e with the greatest promptitude.\n\nThe dictionary meaning of 'forthwith; is : \"lm!llediately, at once, without delay or interval\".\n\nA typical instance of the use of the word cited in the dictionary is : \"When a defendant is ordered to plead forth\n\nwith, he must plead within twenty-four hours\" (See Shorter Oxford English Dictio'.iary, Third Edition, Vol. I, p.740). This shows that the mandate that the report shonld be made forthwith does not require for its compliance a foYow-up action at the split-second when the order of detention is made.\n\nThere ought to be no laxity and laxity cannot be condoned in face of the command that the report shall be made forthwith.\n\nThe legislative mandate, however, Ca'anot be measured mathematically in terms of seconds, minutes and hours in order to find whether the report was mal:Ie forthwith. Administrative exigencies may on occasions render a post-haste compliance impossible and therefore a reasonable allowance has to be made for tmavoidable delays.\n\nThis approach does not offend against the rule formulated in Ki.shori Mohan Bera v. State of West Bengal (1), and followed in\n\nBlutt Nath Mete v. The State of West Ben;:ai( 2 ). that a law depriving a 3ubject of personal liberty must be construed strictly.\n\nThe rule of strict constructi0',1 is no justification for holding that the act to be performed 'forthwith' must be perf.ormed the very instant afterwards without any intervening intem1! of time or that it sh::iuld be performed simultaneously with the other act.\n\nCiting Sameen v. Abeyewickremae)' tviaxwell says that where something is to be dose forthwi•h, a Court will not require instantaneous comtlliance with the ~1atulory\n\nrequirements (\"The Interpretation' of Statut.es\" 12'h Ed., pp. 101-102).\n\nIn Keshav Nilkanth /okkpr v. The Commissioner of Police, Greater Bombay(4), •a Constitution Bench of this Court had to deal\n\nwith a similar contention foundt:d on section 3 ( 3) of the Preventive G Detention Act IV of 1950, which, was in terms identical with section__\n\n3(3) of the Act under consideration. The order of detention was passed in that case on January 13, 1956 but the report to the State Government was made on January 21. Accepting the explanafrori offered by the detaining authority in his affidavit as to why he c1'.iulct not make the reoort earlier. the Court held that the question to comi<fer\n\nunder section 3 ( 3) was whether the report was sent at the earliest ~~~~~~~~~ble and when there is an interval of time between H\n\n(n [t972J 3 sec 845. (2l [19741 m sec 645 . . (3) flQl\\.1] A.C. 597.\n\n(4) fl956] S.C.R. 653.\n\nI 1-423SCil1S\n\nthe date of the order and the date of the report, whether the delay could have been avoided.\n\nThe test which the Court applied for determining whether the report was made forthwith was whether the act was done \"with aH reasonable despatch •.ind without <l\\'<.'idabk cklay.\"\n\nIn Bidya Deb Banna Etc. v.\n\nDiwi,:1 , iJaf; istra:e. Tripura, Agar/a/a, ( 1) the same problem arose for consideration. The District Magistrate had passed the order of dctl'ntion under the Preventive Detention Act, 1950 on February 9, 1968 but made his report to the State Govcrnme'.lt on February 13.\n\nWhile cxpluining the delay, the District Magistrate stated in his affidavit that 10th and 11th Fdiruary were closed days and he was during the particular period \"extremely busy\" due to \"heavy rush of work.\" This explanation was accepted by the Court as satisfactory. In coming to the conclusion that there was no violation of the requirement that the report should be made 'forthwith', the Constitution Bench relied on Joglekar's case a,1d on the following passage which occurred in Maxwell's 1 lth edition at page 341 :\n\n''When a statute requires that something shall be done \"forthwith\", or \"immediately\" or even \"instantly'', it should probably be understoo\\:! as allowing a reasonable time for doing it.\"\n\nThus, 'forthWith' does not conaote a precise time and even if the statute under consideration requires that the report shaU be made forthwith, its terms shall have been complied with if the report is made without avoidable or unreasonable delay.\n\nIn Hillingdon London Borough Council v. Cutler( 2), Harman L.J. while holding that the concept of 'forthwith' does not exclude the allowance of a reasonable time for dorag the act, qualified his formulation by adding the rider \"provided that no harm is done.\" Applying that test, no prejudice has been caused to the petitioner by the late making of the report.\n\nThe Srate Government could approve the d1!tention any time before June 25, the order havin!; ben passed on June 13. The report was made to the State Government cm .Tune 15 which still left to it a margin of about 10 days to consider the merits of the order. It. cannot be said that the delay in making the report left to the State Government insufficient time to consider whether the order of detention should be approved.\n\nThe order was in fact approved on June 21, much before the expiry of the statutory period of 12 days.\n\nThe District Magistrate, it must be stated, has not explained in his affidavit why he did not report the fact of detention to the State Government promptly.\n\nThe order js dated June 13 and if not on the 13th itself, he should have in normal circumstances made his report on the 14th. Such remisness on the part of detaining authorities is not to be encouraged but it ought to be stated that counsel for the State Government ha\\i asked for an adjournment to enable the District Maf!- istrate to file a supplementary affidavit for explaining the delay. We\n\n{I) [1969] 1 S.C.R. 562.\n\n(2) [1968] I Q.B. 124. at p. 135.\n\ndid not grant. the adjournment as we were inclined to the view that the interval between the date of the order and the date of the report is not s•o long as to require an explanation on oath. The date on which the order was passe~:I. may, even according to the petitioner's counsel be left out of the reckoning.\n\nThat accounts for the 13th. The report was made on the 15th and there' is some authority for the proposition that an act may be taken as done \"at the first moment of the day on which it was performed\" (See Maxwell, 12th Ed. pp. 311-312). That\n\ntakes. care of the 15th. All that can therefore be said is that there was one day's delay in making the report. We arc not inclined to dismiss as untrue the oral explanation offered on behalf of the District Magistrate that he could not make the report on the 14th due to administrative difficulties.\n\nAs it cannot be said that the District Magistra1:e had. slept over the order or was \"lounging supinely\" over it and since the explanation of one day's delay ml!)' be accepted as reasonable, there is no violation of the requirement that the report to the State Government shall be made forthwith.\n\nA few other contentions were raised on behalf of the petiti'oner but. we se, e no substance in any one of them. It is contended that section 3(4) has been violated because the State Government did not make a report to the Central Government within 7 days of the date of the order of detention. The short answer to this contention is that the period of 7 days has to be reckoned from the date on which the State Government approved the order and not from the date on which the District Magistrate passed the order. If the order were made by the State Government, the report would have been required to be made to the Central Government within 7 days of the date of the oltler; but the order in the instant case was approved and not made by the State Government. It was then said that there was no proximity between the iqcidents leading to the detention and the order of detention as. there was a gap of about 4 months in between. The explanation of the interval is that the petitioner was being prosecute(! and an order of discharge had t'O be obtained on June 17, 1972. The order of detention was passed 4 days betbre the order of discharge was passed. It is next contended that the State Govemment having rejected the peti tioner's representation the very next day that it was received, it' must be held that it did not apply its riiind to the representation. We do not suppose that the length of time which a decision takes necessarily reflects the care or openness brought to bear upon it. The answer to yet another contention that the entire material which influenced the subjective satisfaction of the Magistrate in passing the order of detention was not supplied to the petitioner is that according to the countered affidavit of the District Magistrate, nothing apart from what is stated\n\nin the grounds and the particulars was taken into account while pass\n\ning the order of detention. The last submission that the petitioner could have bee11 prosecuted for the .acts attributed t-o him has b<en answered by this Court in numerous cases by saying that the availability of an alternate reme:dy is not by itself an effective answer to the validity of the detention.\n\nIn the result we dismiss the petition and discharge the rule.\n\nP.H.P.\n\nPetition dismissed.", "total_entities": 39, "entities": [{"text": "SALIM", "label": "PETITIONER", "start_char": 0, "end_char": 5, "source": "metadata", "metadata": {"canonical_name": "SALIM", "offset_not_found": false}}, {"text": "STATE OF \\VEST BENGAL", "label": "RESPONDENT", "start_char": 7, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 50, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 61, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3327, "end_char": 3337, "source": "regex", "metadata": {"statute": null}}, {"text": "D. N. Mukherjee", "label": "OTHER_PERSON", "start_char": 3359, "end_char": 3374, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee and Gobind Mukhoty A.C., for the etitioner G. S. C. Chatterjee of Sukumar Basu & Co., for the Respondent."}}, {"text": "Gobind Mukhoty", "label": "LAWYER", "start_char": 3379, "end_char": 3393, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee and Gobind Mukhoty A.C., for the etitioner G. S. C. Chatterjee of Sukumar Basu & Co., for the Respondent."}}, {"text": "G. S. C. Chatterjee", "label": "LAWYER", "start_char": 3418, "end_char": 3437, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee and Gobind Mukhoty A.C., for the etitioner G. S. C. Chatterjee of Sukumar Basu & Co., for the Respondent."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 3525, "end_char": 3536, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Comt was delivered by\n\nCHANDRACHUD, J.The petitioner, Skq."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3603, "end_char": 3613, "source": "regex", "metadata": {"statute": null}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 3715, "end_char": 3757, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 4361, "end_char": 4370, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "section 3", "label": "PROVISION", "start_char": 5193, "end_char": 5202, "source": "regex", "metadata": {"statute": null}}, {"text": "June 13, 1972", "label": "DATE", "start_char": 5283, "end_char": 5296, "source": "ner", "metadata": {"in_sentence": "The District Magistrate, in the instant case, made the detention order on June 13, 1972 and on me 15th he reported the fact of making the order to the State Government."}}, {"text": "section 3", "label": "PROVISION", "start_char": 5633, "end_char": 5642, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3(3)", "label": "PROVISION", "start_char": 6414, "end_char": 6426, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3(3)", "label": "PROVISION", "start_char": 6615, "end_char": 6627, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 6792, "end_char": 6801, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 6830, "end_char": 6848, "source": "ner", "metadata": {"in_sentence": "If the ordet is made o~ approved by the St•ate Government it must under section 3 ( 4) report the fact to the Central Government within 7 days."}}, {"text": "section 9", "label": "PROVISION", "start_char": 7071, "end_char": 7080, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 7258, "end_char": 7267, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 7310, "end_char": 7319, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 8695, "end_char": 8704, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12418, "end_char": 12427, "source": "regex", "metadata": {"statute": null}}, {"text": "Detention Act IV of 1950", "label": "STATUTE", "start_char": 12453, "end_char": 12477, "source": "regex", "metadata": {}}, {"text": "January 13, 1956", "label": "DATE", "start_char": 12612, "end_char": 12628, "source": "ner", "metadata": {"in_sentence": "The order of detention was passed in that case on January 13, 1956 but the report to the State Government was made on January 21."}}, {"text": "section 3", "label": "PROVISION", "start_char": 12875, "end_char": 12884, "source": "regex", "metadata": {"linked_statute_text": "Detention Act IV of 1950", "statute": "Detention Act IV of 1950"}}, {"text": "sec 845", "label": "PROVISION", "start_char": 13012, "end_char": 13019, "source": "regex", "metadata": {"linked_statute_text": "Detention Act IV of 1950", "statute": "Detention Act IV of 1950"}}, {"text": "sec 645", "label": "PROVISION", "start_char": 13034, "end_char": 13041, "source": "regex", "metadata": {"linked_statute_text": "Detention Act IV of 1950", "statute": "Detention Act IV of 1950"}}, {"text": "Preventive Detention Act, 1950", "label": "STATUTE", "start_char": 13572, "end_char": 13602, "source": "regex", "metadata": {}}, {"text": "February 9, 1968", "label": "DATE", "start_char": 13606, "end_char": 13622, "source": "ner", "metadata": {"in_sentence": "The District Magistrate had passed the order of dctl'ntion under the Preventive Detention Act, 1950 on February 9, 1968 but made his report to the State Govcrnme'.lt on February 13."}}, {"text": "Constitution Bench", "label": "COURT", "start_char": 14076, "end_char": 14094, "source": "ner", "metadata": {"in_sentence": "In coming to the conclusion that there was no violation of the requirement that the report should be made 'forthwith', the Constitution Bench relied on Joglekar's case a,1d on the following passage which occurred in Maxwell's 1 lth edition at page 341 :\n\n''When a statute requires that something shall be done \"forthwith\", or \"immediately\" or even \"instantly'', it should probably be understoo\\:!"}}, {"text": "Joglekar", "label": "OTHER_PERSON", "start_char": 14105, "end_char": 14113, "source": "ner", "metadata": {"in_sentence": "In coming to the conclusion that there was no violation of the requirement that the report should be made 'forthwith', the Constitution Bench relied on Joglekar's case a,1d on the following passage which occurred in Maxwell's 1 lth edition at page 341 :\n\n''When a statute requires that something shall be done \"forthwith\", or \"immediately\" or even \"instantly'', it should probably be understoo\\:!"}}, {"text": "Maxwell", "label": "OTHER_PERSON", "start_char": 14169, "end_char": 14176, "source": "ner", "metadata": {"in_sentence": "In coming to the conclusion that there was no violation of the requirement that the report should be made 'forthwith', the Constitution Bench relied on Joglekar's case a,1d on the following passage which occurred in Maxwell's 1 lth edition at page 341 :\n\n''When a statute requires that something shall be done \"forthwith\", or \"immediately\" or even \"instantly'', it should probably be understoo\\:!"}}, {"text": "s 1", "label": "PROVISION", "start_char": 14177, "end_char": 14180, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act, 1950", "statute": "the Preventive Detention Act, 1950"}}, {"text": "Harman", "label": "JUDGE", "start_char": 14695, "end_char": 14701, "source": "ner", "metadata": {"in_sentence": "In Hillingdon London Borough Council v. Cutler( 2), Harman L.J. while holding that the concept of 'forthwith' does not exclude the allowance of a reasonable time for dorag the act, qualified his formulation by adding the rider \"provided that no harm is done.\""}}, {"text": "[1969] 1 S.C.R. 562", "label": "CASE_CITATION", "start_char": 16091, "end_char": 16110, "source": "regex", "metadata": {}}, {"text": "section 3(4)", "label": "PROVISION", "start_char": 17437, "end_char": 17449, "source": "regex", "metadata": {"statute": null}}, {"text": "June 17, 1972", "label": "DATE", "start_char": 18360, "end_char": 18373, "source": "ner", "metadata": {"in_sentence": "and an order of discharge had t'O be obtained on June 17, 1972."}}]}
{"document_id": "1975_3_401_406_EN", "year": 1975, "text": "TULSti{ RABIDAS\n\nTHE STATE OF WEs: BENGAL\n\nJanuary .27, L915\n\n[V. R.. KRISHNA }YER, P: K. GOSWAMI AND R. S. SARKARIA, JJ.] .\n\nMai111e11a11ce of Intemal Security Act, Sec. 3-Subjective satisfaction, meal!· ing of-Some el'ide11ce gathered d11ri11g i11restigatio11 which in some manner roped ill the det, e11u, if s11fficie11t. ·\n\nIn .pursuan:e of the order of detention , made by the District Magistrate, West Dinajpur, on March i9, 1973, the p; ltitioner was taken into custody. The order of •detention was intended to prevent the petitioner from acting in a manner pr¢jlldicial to the maintenance of supplies essential to the community.\n\nThe lil'$t ground related to the ar.rest of the petitioner and his associates while they were. sinuggling 65 KGs. of 'paddy from West Dinajpur District to Maida District. On being challenged by the patrol party he could not produce any valid document in supp()rt of hi~ carrying paddy at West Dinajpur-Malda districts border.\n\nThe second ground related to the smuggling of paddy on 11f12,3·73 mid-night in 6' bullock .:arts by the petitioner and his associates from West Dinajpur District to Maida Di'slrict. On being challenged by the Resistance Group Members, the petitioner 'and his associates threatened to .kill them and therefore, being thus terrorised, they dred not apprehend the petitioner and his associates. \"' ·\n\nDismissing the Writ Petition challenging the order of detention,\n\nHELD : (i) The counter affidavit disclosed that a criminal ·:ase had been instiJuted against the petitioner and his associates for offences of illegal tran5port of paddy, for resistan:e to the J!Olice officers taking them into custody and for escape from lawful custody. It further stated that 'due to dangerous and dt:sperate nature of the detenu and his associates' the witness declined to give evidence in op::n court for fear of their lives and that the final report was submitted in the said case.\n\nThis mea, ns that the charge-sheet disclosed sufficient evidence to go before the Court and it was not a case of absence of reasonable grounds of suspicion.\n\n[403H404B]\n\n{ii) So far as the second groul)d is conzerned, the absence of material to show that a case has been charge-sheeted in ,:c)urt is not destrucive of the detention order provided there is some_ material fo'r subjective satisfaction of the authority concerned.\n\nWhether the investigation was conducted properly or not. whether the. Dist:rict Magistrate should have pinned his faith on the result of investigation and like questions are not for the court to consider.\n\nBut the minimum which .must be placed before the court is that there was some evidence gathered during investigation which. in some manner, roped in the petitioner.\n\nJn the present case, there is some evidence for the District Magistrate to act.\n\n[404E-H]\n\n(iii) Rhetorica, l assertions that the Presidential proclamation of emergency has outlived its reality and must be annulled. cannot be transformed into proof. The rea>0ns given by this Court in Bhuth Nath's case A.I.R. 1974 S.C. 806, holds good here too.\n\n[405EF]\n\nSamsher Singh's case, A.I.R. 1974 S.C. 2192, referred to.\n\nORIGINAL JuRm1cnoN : Writ Petition No. 349 of 1974.\n\nPetition under Art. 32 of the Constitution of India.\n\nH. S. Manvah, for the petitioner.\n\nS11kumar Ghosh and G. S. Chatterjee, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.--The case of the petitioner, a detenu in West Bengal, has been presented at persistent length by Sri arwah, appear ing as amic~1s curiae, but some of the many contentions pressed by him merit serious notice which alone we propose to deal with.\n\nNow, the facts to the extent relevant.\n\nThe order for detention was made by the District Magisrate, West Dinajpur, on March 19, :1973 pursuant to which he was taken into custody nine. days later. The calendar of 'statutory' events discloses no infirmity but the content of the groun'ds given by the District Magistrate and the order of approval made by the State Government have been the focal points of attack.\n\nStraightway W(: proceed to set out the two criminal involvements of the petitioner which allegedly persuaded the authority to direct detention with a view, hereafter, to inhibit this activities prejudicial to supplies essential to the community.\n\nThey are :\n\n\"( 1) That on 6-3-73 at about 01.30 hours you along with your associate Mangal Soran of Gopalpur, P. S. Bangshihari, Dist. West Dina_jpur were arrested with 65 kgs. of' paddy in gunny bags within 1 K.M. of West Dinajpur-Malda Border at Kandarpur, P. S. Banshihari, Dist. West Dinajpur, by the patrol party of Bagduar A/S Camp, P. S. Bangshihari, Dist. Dinajpur while you acd your said associates were smug· gling the said quantity of paddy from West Dinajpur district to Maida district.\n\nBeing challenged by the patrol party you could not produc:c any valid d<;>cumcnt in support of your carrying paddy at West Dinajpuf-Malda districts border. This activity of yours created scarcity of paddy within the jurisdiction of Bangshihari P. S. Elaka of West Dinajpur district and the price index of paddy soared high and high beyond the purchasing capacity of the common people of that area.\n\nThus you acted :in a manner prejudicial to the maintenance:. of supplies essential to the oornmunity.\n\n(2) That on 11/12/3-73 mid-n.ight you along with yoa; r associates were found smuggling paddy in 6 bullock carts from Rakhalpukur, P.S. Banshihari., Dist. West Dinajpur to Maida district by some members of the local Resistance\n\ngroup. namely Kamal Chandra Roy of Deogaon. Narayan Chandra Sarkar of Mirshati, both of P.S. Banshihari. Dist.\n\nWest Dinajpur and others.\n\nBeing challenged by the said Resistance Group Members, you and your associates threa- tened to kill them and being thus terrorised the Resistance Group Members dared not apprehend you and your asSO· ciates These activities of yours are mainly responsible for the rise in price of paddy and rice within Banshihari P.S. jurisdiction of West Dinaipur district. Bv such illegal act of smuggling of paddy you and your associates created scarcity of paddy and rice in Banshihari P.S. jurisdiction, Pist.\n\nWest Dinajpur allld thereby acted in a manner preiudicial to the maintenance of supplies C!sential to the community. ·\n\nFrom the above facts it is clear that you and your associates are acting in a manner prejudicial to the maintenance of supplies and services essential to the community.\"\n\nThe past is the precurser anti predictor of the future and this commonsense canon is usually-and in this case-applied by the authority to foretell the danger to the services and supplies essential to the community by repetitive criminal activity of the prospective dtenu.\n\nOnce the officer entrusted with the power reads the omens with due care, the court cannot re-read for its own satisfaction. But if the authority puts forward grounds so grotesque that he goofs the law, as it were, the Court will invalidate the order for the well-worn reason that no rational being would have formed the satisfaction which is a si11e qua non for the detention.\n\nSupra-rational hunch or iO:frarntional instinct are not legal processes in this humdrum world and we have, as sentinels, the duty to scan the basis of the subjective satisfaction or the authority to check upon his minimal aspect of rational belief.\n\nThe grounds, as already set out, have to be considered to appraise the claim of rational belief as against the charge of a 'cyclostyled' satisfaction.\n\nThe crime of March 6, 197.3, committed past mid-night by the petitioner and his associates, is tell-tale in certain aspects. It relates to removal of paddy in gunny bags. The smugglers were arrested by the patrol party of Bagduar anti-smuggling camp. The culprits oould not produce any permi.t in support of their transport of the paddy.\n\nWe have no doubt that smugglers. disrupt supplies and services essential to the community and a smuggler of today who gets away with it is likely to be a smuggler of tomorrow, the habit of get ting rich quick dying hard. In this context, we have the counter-affichwit which runs thus :\n\n\"It appears from th~ report submitted by 1.0. of the case that the petitioner was ratimately connected with the incidents mentioned in the grounds of detention. I deny that . the grounds of detention are false and detention of the petitioner is illegal.\n\nIt further appears from the report of the said 1.0. that with reference to the first incident a Cr. Case bei'ag Banshihari P. case No. 6 dated 6.3.73 was instituted against the petitioner •and his associates under Section 7 ( 1) of the Essential Commoditi_es Act and Section 224/225 of J.P.C. but as due to dangerous and desperate nature of the detenu and his associates the witnesses declined to ive evidence against them in open court for fear of their lives and final report was submitted in the said case.\"\n\nThe inevitable inference from this statement, understood in the background of the 'grounds,' is that a criminal case had been instituted against the petitioner and his associates for offences of illeiial transport of paddy, for resistance to the police officers taking them into\n\ncutodv and for escape from la1.Viul custodv.\n\nSections 224 and 225 I.P.C. clearly intlicate this development. What follows is significant. The Deputy Seqetary in the Home Department (who has sworn to the counter-affidavit), by a perusal of the papers, states on\n\nomh that 'due to da,1gerous and desperate nature of te dete;1u and his associates' the witnesses declined to give .:videnc~ m ?Pe;1 cou.rt for fear of their lives and the final report 'Vas submitted m t,1e said case.\n\nThe price that subjective satisfaction, as valiating n order and excluding judicial scrutiny, has to pay in a court, 1s that if one of many gromds relied on by the authority goes, undeniably the whole order falls, even though if it were a case of objective satisfati?n the court _ might have attempted to sustain the order o.n the survvmg grounds.\n\nIt is argued that for this reason, the detent10n order m the present case must fail.\n\nWe have to be very C'areful where economic offenders inj1m~ the soft underside of the community's distribution a,1d consumption system in -r.espect ef essential cQnunodities.\n\nViewed with meticulous care, we see from the affidavit filed on behalf of the State that a criminal case had been actually instituted against the petitioner under s. 7 ( 1) of the Essential Commodities Act. This means that the charge-sheet disclosed sufficient evidence to go before a court and it was •,101: a case of absence of reasonable grounds of suspicion.\n\nThe possible argument that the affidavit had left vague the likelihood of a report under s. 169 Cr.P.C. based on no evidence is thus repelled. The order is not vulnerable on this score.\n\nSo far as the s1:cond episode is concemed, the attack made by counsel is that the counter-affidavit omits to mention anything about the criminal case that must have followed.\n\nTrue, there should have been a btter aflldavit, but the absence of material to show that a case has been charge-sheeted in court is not destructive of the detention order provided there is some material for the subjective satisfaction of the authority concerned. In the present case, on the polic1~ report regarding the second incident, which is a serjous one, the authority might well have come to an inference of prejudicial activity.\n\nWe must express our surprise: at the silence i'.1 the counter-affidavit about the action taken in court having regard to the fact that the offence itself is one of transport by a 'caravan' of bullock carts. Even so, we are unabfo to void the order on this score, especially because the District Magistrate may well have acted on the police report.\n\nWhether the investigation was conducted properly or not, whether the District Magistrate should have pinned his faith O'a the result of the investi gation and like questions, are not for the Court to consider. But the minimum which must be placed before the Court is that there 'was some evidence gathereld during investigation which, in some manner, roped in the petitioner. We are prepared to hold that there is some evidence for the District Magistrate to act and there we pause.\n\nW c must fra,1kly admit tlrat the nature of the economic offence has had some impact on our mind in examining the order and the\n\nsuce material sedulously. The facts are peculiar and other facts might have led to an opposite inference.\n\nThe caution that absentminded orders of detention unwittingly suffer electrocution in court\n\nshould however 11ot be forgotten, notwithstanding the survival of the order in this case.\n\nThe country which faces food scarcity has resorted to arming the government and its officers with special powers under the MISA.\n\nThey are intended to be exercised whenever occasion arises, but exercised with care.\n\nIn the present case we have had to make up for deficiencies in the counter-affidavit by a closer exmnination of materials, for reasons already set out.\n\nWe should impress upon govermi1ent and its_ lesser officials, armed with extraordinary powers, to use them for the salutary purpose of C the protection of the community in its sensitive area of food and like essential articles. If there is failure in this •area, the officers must be taken to task, for the victim is the country and the community.\n\nThe release of a detenu because the order has been passed recklessly, is a matter which should be of concern to the State. If the detenu is a dangerous criminal who disrupts supplies and services essenfral to D . the life of the community, release of the man caused by absence of nexus for which the real though invisible responsibility falls on the officer, must be looked into at higher levels, so that the purposes of . the MISA are 1aot defeated by the neglect -of legality or indifference in_ operation from withi•.1.\n\nOfficial vigilance is the price of soda! security and MISA is no talisman.\n\nIn the present case, for the special reasons E set out above, the order survives judicial scrutiny.\n\nShri Marwah openetl vigorously with the submission that the Presidential proclamation of emergency has outlived its reoality and must be annulled by this Court.\n\nHe marshalled what he variously called 'notorious' and 'historical' facts to establish that normalcy has prevailed in the l'a'ad for some time and the impenetrable secrecy of 'subjective satisfaction' no longer remained a sustainable proposition after Samsher Singh' s Case('). If the Emergency was extinguished judicially and retroactively, the Defence of India Act would have expired aq_d the maximum period of detention itself would have ended, resulting in a release of the petitioner. For lovers of civil liberties a penumbra of Emergency is anathema but the preliminary question in a Court is whether the basic facts and necessary parties are on record at all. Rhetorical assertions cannot be transformed into proof and absent affected parties, the Court's jurisdiction cannot be activated.\n\nFurther, adjpurnment for this purpose at this late stage.being impennissible. we have to negative the plea. Moreover, the reasons given by th!s Court in Bhut Nath's Case (2) hold good here too.\n\nWe reject the belated ------- ----\n\n(1) AIR 1974 SC 2192;\n\n(2) A.J.R. 1974 S.C. 806.\n\n406 SUPREME COURT Rf!PQRTS\n\n(1975] 3 S.C.R.\n\nplea, hopeful that in the event of a future ruling of this Court prono1mcing ... the ·ate o.f emergency long ago legally dead the petitioner will have the benefit of it at the hands of the State.\n\nObserving silence £or --....._ r the nonce on the merits of Shri Marwah's undccume•,1ted content:/on,\n\nwe reach th~ conclusion that the petition is liable to be dismissed. We however record appreciation of the painstaking services of Mr. Marwah with a sense of involvement in the case, though appearing as amicus curiae.\n\nThe petition is dismissed and the rule discharged.\n\nPetition dismissed.\n\nV.M.K.·", "total_entities": 54, "entities": [{"text": "RABIDAS\n\nTHE STATE OF WEs: BENGAL", "label": "RESPONDENT", "start_char": 8, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "January .27, L915", "label": "DATE", "start_char": 43, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "TULSti{ RABIDAS\n\nTHE STATE OF WEs: BENGAL\n\nJanuary .27, L915\n\n[V. R.. KRISHNA }YER, P: K. GOSWAMI AND R. S. SARKARIA, JJ.] ."}}, {"text": "P: K. GOSWAMI", "label": "JUDGE", "start_char": 84, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 102, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Intemal Security Act", "label": "STATUTE", "start_char": 144, "end_char": 164, "source": "regex", "metadata": {}}, {"text": "Sec. 3", "label": "PROVISION", "start_char": 166, "end_char": 172, "source": "regex", "metadata": {"linked_statute_text": "Intemal Security Act", "statute": "Intemal Security Act"}}, {"text": "s11", "label": "PROVISION", "start_char": 311, "end_char": 314, "source": "regex", "metadata": {"linked_statute_text": "Intemal Security Act", "statute": "Intemal Security Act"}}, {"text": "Maida District", "label": "GPE", "start_char": 793, "end_char": 807, "source": "ner", "metadata": {"in_sentence": "of 'paddy from West Dinajpur District to Maida District."}}, {"text": "Malda districts", "label": "GPE", "start_char": 940, "end_char": 955, "source": "ner", "metadata": {"in_sentence": "On being challenged by the patrol party he could not produce any valid document in supp()rt of hi~ carrying paddy at West Dinajpur-Malda districts border."}}, {"text": "11f12,3·73", "label": "DATE", "start_char": 1020, "end_char": 1030, "source": "ner", "metadata": {"in_sentence": "The second ground related to the smuggling of paddy on 11f12,3·73 mid-night in 6' bullock .:arts by the petitioner and his associates from West Dinajpur District to Maida Di'slrict."}}, {"text": "West Dinajpur District", "label": "GPE", "start_char": 1104, "end_char": 1126, "source": "ner", "metadata": {"in_sentence": "The second ground related to the smuggling of paddy on 11f12,3·73 mid-night in 6' bullock .:arts by the petitioner and his associates from West Dinajpur District to Maida Di'slrict."}}, {"text": "Rhetorica", "label": "OTHER_PERSON", "start_char": 2831, "end_char": 2840, "source": "ner", "metadata": {"in_sentence": "[404E-H]\n\n(iii) Rhetorica, l assertions that the Presidential proclamation of emergency has outlived its reality and must be annulled."}}, {"text": "Bhuth Nath", "label": "OTHER_PERSON", "start_char": 3019, "end_char": 3029, "source": "ner", "metadata": {"in_sentence": "The rea>0ns given by this Court in Bhuth Nath's case A.I.R. 1974 S.C. 806, holds good here too.", "canonical_name": "Bhuth Nath"}}, {"text": "Samsher Singh", "label": "PETITIONER", "start_char": 3090, "end_char": 3103, "source": "ner", "metadata": {"in_sentence": "[405EF]\n\nSamsher Singh's case, A.I.R. 1974 S.C. 2192, referred to.", "canonical_name": "Samsher Singh"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 3217, "end_char": 3224, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3232, "end_char": 3253, "source": "regex", "metadata": {}}, {"text": "H. S. Manvah", "label": "LAWYER", "start_char": 3256, "end_char": 3268, "source": "ner", "metadata": {"in_sentence": "H. S. Manvah, for the petitioner."}}, {"text": "S11", "label": "PROVISION", "start_char": 3291, "end_char": 3294, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 3310, "end_char": 3326, "source": "ner", "metadata": {"in_sentence": "S11kumar Ghosh and G. S. Chatterjee, for the respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 3393, "end_char": 3405, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.--The case of the petitioner, a detenu in West Bengal, has been presented at persistent length by Sri arwah, appear ing as amic~1s curiae, but some of the many contentions pressed by him merit serious notice which alone we propose to deal with."}}, {"text": "arwah", "label": "OTHER_PERSON", "start_char": 3511, "end_char": 3516, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.--The case of the petitioner, a detenu in West Bengal, has been presented at persistent length by Sri arwah, appear ing as amic~1s curiae, but some of the many contentions pressed by him merit serious notice which alone we propose to deal with.", "canonical_name": "Marwah"}}, {"text": "6-3-73", "label": "DATE", "start_char": 4341, "end_char": 4347, "source": "ner", "metadata": {"in_sentence": "They are :\n\n\"( 1) That on 6-3-73 at about 01.30 hours you along with your associate Mangal Soran of Gopalpur, P. S. Bangshihari, Dist."}}, {"text": "Mangal Soran", "label": "OTHER_PERSON", "start_char": 4399, "end_char": 4411, "source": "ner", "metadata": {"in_sentence": "They are :\n\n\"( 1) That on 6-3-73 at about 01.30 hours you along with your associate Mangal Soran of Gopalpur, P. S. Bangshihari, Dist."}}, {"text": "Gopalpur", "label": "GPE", "start_char": 4415, "end_char": 4423, "source": "ner", "metadata": {"in_sentence": "They are :\n\n\"( 1) That on 6-3-73 at about 01.30 hours you along with your associate Mangal Soran of Gopalpur, P. S. Bangshihari, Dist."}}, {"text": "P. S. Bangshihari", "label": "OTHER_PERSON", "start_char": 4425, "end_char": 4442, "source": "ner", "metadata": {"in_sentence": "They are :\n\n\"( 1) That on 6-3-73 at about 01.30 hours you along with your associate Mangal Soran of Gopalpur, P. S. Bangshihari, Dist."}}, {"text": "Kandarpur", "label": "GPE", "start_char": 4563, "end_char": 4572, "source": "ner", "metadata": {"in_sentence": "of' paddy in gunny bags within 1 K.M. of West Dinajpur-Malda Border at Kandarpur, P. S. Banshihari, Dist."}}, {"text": "Dinajpur district", "label": "GPE", "start_char": 4777, "end_char": 4794, "source": "ner", "metadata": {"in_sentence": "Dinajpur while you acd your said associates were smug· gling the said quantity of paddy from West Dinajpur district to Maida district."}}, {"text": "Maida district", "label": "GPE", "start_char": 4798, "end_char": 4812, "source": "ner", "metadata": {"in_sentence": "Dinajpur while you acd your said associates were smug· gling the said quantity of paddy from West Dinajpur district to Maida district."}}, {"text": "West Dinajpuf-Malda districts", "label": "GPE", "start_char": 4933, "end_char": 4962, "source": "ner", "metadata": {"in_sentence": "Being challenged by the patrol party you could not produc:c any valid d<;>cumcnt in support of your carrying paddy at West Dinajpuf-Malda districts border."}}, {"text": "Bangshihari P. S. Elaka", "label": "OTHER_PERSON", "start_char": 5047, "end_char": 5070, "source": "ner", "metadata": {"in_sentence": "This activity of yours created scarcity of paddy within the jurisdiction of Bangshihari P. S. Elaka of West Dinajpur district and the price index of paddy soared high and high beyond the purchasing capacity of the common people of that area."}}, {"text": "West Dinajpur district", "label": "GPE", "start_char": 5074, "end_char": 5096, "source": "ner", "metadata": {"in_sentence": "This activity of yours created scarcity of paddy within the jurisdiction of Bangshihari P. S. Elaka of West Dinajpur district and the price index of paddy soared high and high beyond the purchasing capacity of the common people of that area."}}, {"text": "11/12/3-73", "label": "DATE", "start_char": 5329, "end_char": 5339, "source": "ner", "metadata": {"in_sentence": "(2) That on 11/12/3-73 mid-n.ight you along with yoa; r associates were found smuggling paddy in 6 bullock carts from Rakhalpukur, P.S. Banshihari.,"}}, {"text": "Rakhalpukur", "label": "GPE", "start_char": 5435, "end_char": 5446, "source": "ner", "metadata": {"in_sentence": "(2) That on 11/12/3-73 mid-n.ight you along with yoa; r associates were found smuggling paddy in 6 bullock carts from Rakhalpukur, P.S. Banshihari.,"}}, {"text": "Kamal Chandra Roy", "label": "LAWYER", "start_char": 5559, "end_char": 5576, "source": "ner", "metadata": {"in_sentence": "namely Kamal Chandra Roy of Deogaon."}}, {"text": "Deogaon", "label": "GPE", "start_char": 5580, "end_char": 5587, "source": "ner", "metadata": {"in_sentence": "namely Kamal Chandra Roy of Deogaon."}}, {"text": "Narayan Chandra Sarkar", "label": "RESPONDENT", "start_char": 5589, "end_char": 5611, "source": "ner", "metadata": {"in_sentence": "Narayan Chandra Sarkar of Mirshati, both of P.S. Banshihari."}}, {"text": "Mirshati", "label": "GPE", "start_char": 5615, "end_char": 5623, "source": "ner", "metadata": {"in_sentence": "Narayan Chandra Sarkar of Mirshati, both of P.S. Banshihari."}}, {"text": "Banshihari P.S.", "label": "GPE", "start_char": 5986, "end_char": 6001, "source": "ner", "metadata": {"in_sentence": "Being challenged by the said Resistance Group Members, you and your associates threa- tened to kill them and being thus terrorised the Resistance Group Members dared not apprehend you and your asSO· ciates These activities of yours are mainly responsible for the rise in price of paddy and rice within Banshihari P.S. jurisdiction of West Dinaipur district."}}, {"text": "March 6, 197.3", "label": "DATE", "start_char": 7540, "end_char": 7554, "source": "ner", "metadata": {"in_sentence": "The crime of March 6, 197.3, committed past mid-night by the petitioner and his associates, is tell-tale in certain aspects."}}, {"text": "6.3.73", "label": "DATE", "start_char": 8551, "end_char": 8557, "source": "ner", "metadata": {"in_sentence": "6 dated 6.3.73 was instituted against the petitioner •and his associates under Section 7 ( 1) of the Essential Commoditi_es Act and Section 224/225 of J.P.C. but as due to dangerous and desperate nature of the detenu and his associates the witnesses declined to ive evidence against them in open court for fear of their lives and final report was submitted in the said case.\""}}, {"text": "Section 7", "label": "PROVISION", "start_char": 8622, "end_char": 8631, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 224", "label": "PROVISION", "start_char": 8675, "end_char": 8686, "source": "regex", "metadata": {"statute": null}}, {"text": "cutodv", "label": "GPE", "start_char": 9200, "end_char": 9206, "source": "ner", "metadata": {"in_sentence": "The inevitable inference from this statement, understood in the background of the 'grounds,' is that a criminal case had been instituted against the petitioner and his associates for offences of illeiial transport of paddy, for resistance to the police officers taking them into\n\ncutodv and for escape from la1.Viul custodv."}}, {"text": "Sections 224 and 225", "label": "PROVISION", "start_char": 9246, "end_char": 9266, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9267, "end_char": 9272, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 7", "label": "PROVISION", "start_char": 10455, "end_char": 10459, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 10472, "end_char": 10497, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 169", "label": "PROVISION", "start_char": 10745, "end_char": 10751, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 10752, "end_char": 10758, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s1", "label": "PROVISION", "start_char": 10857, "end_char": 10859, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Marwah", "label": "OTHER_PERSON", "start_char": 14134, "end_char": 14140, "source": "ner", "metadata": {"in_sentence": "Shri Marwah openetl vigorously with the submission that the Presidential proclamation of emergency has outlived its reoality and must be annulled by this Court.", "canonical_name": "Marwah"}}, {"text": "Samsher Singh", "label": "PETITIONER", "start_char": 14543, "end_char": 14556, "source": "ner", "metadata": {"in_sentence": "He marshalled what he variously called 'notorious' and 'historical' facts to establish that normalcy has prevailed in the l'a'ad for some time and the impenetrable secrecy of 'subjective satisfaction' no longer remained a sustainable proposition after Samsher Singh' s Case(').", "canonical_name": "Samsher Singh"}}, {"text": "Bhut Nath", "label": "OTHER_PERSON", "start_char": 15242, "end_char": 15251, "source": "ner", "metadata": {"in_sentence": "Moreover, the reasons given by th!s Court in Bhut Nath's Case (2) hold good here too.", "canonical_name": "Bhuth Nath"}}, {"text": "AIR 1974 SC 2192", "label": "CASE_CITATION", "start_char": 15324, "end_char": 15340, "source": "regex", "metadata": {}}]}
{"document_id": "1975_3_407_417_EN", "year": 1975, "text": "401 -\n\nBOMBAY HOUSING BOARD (NOW THE MAHARASHTRA\n\nHOUSING BOARD)\n\n' \\!.\n\nKARBHASE NAIK & CO., SHOLAPUR\n\nJanuary 29, 1975\n\n[K. K. MATHEW, P. N, BHAG'YATI AND N. L. UNTWALIA, JJ.]\n\nThe Bombay Housing Board Act (69 of 1948), s. 64-'Anything done or pll.'porti11g to lwve bee11 done in pursuance of the Acl', Scope of-Breach of c1111tract if comes within_ expression.\n\nThere was a conlra1:t between the State and the respondent, which after the passing of the Bombay Housing Board Act, 1948, was deemed to have b-en entered into between the appellant and the respondent, for the construction of\n\nbuildings by the respondent.\n\nClause 14 of the Contract provided that where any additional or altered work is directed to be carried out and no rates are entered in the Schedu!e of Ra-tes in the Division, or agreed to, then. the contractor may, within 7 days of the order, give notice of the rate he intends to charge.\n\nIn such a case, the Engineer-in,:harge would be at liber~ to cancel the order if h.e does not agree to the rate stated by the. contractor, and get the work done by another.\n\nWhere the Engineer-in-charge has not cancelled the order and the contra.ctor ha!.i commenced work and incu.rred expenditure. the contractor shall only be entitled to be paid at su:h rate as may be fixed by the Engineer'incharge, and if the contractor is dissatisfied, he may raise a dispute about the rate and the decision of the Superintending Engineer will b~ final.\n\nClause 15 provided that the Engineer-in-charge has power to stop or to reduce the who'.e of the work specified in the tender or gt it done by ano!her, and the contractor has no claim to any compensation whatsoever on account of such stoppage or redudion.. But, befo:e th~ Engineer-in-charge could stop the work and get it done by another contractor, he should give the first contractor a written notice, The contrac:or sha, JJ also have no right under the clause to claim any payment or compensation on account of any profit or advantage which he might have derived from the exe:ution of the work in full but which he did not derive in consequence of the full amount of work not having been carried out, or on account of any loss due to purchase of materia's or labour recruited by him.\n\nThe clame further provides that the contractor shal! not also have any claim for compensation by reason of any alteration in the original specifi.:ation which may involve curtailment of work as originally contemplated.\n\nThe respondent filed a suit claiming a certain sum of money with respect to certain items and the. suit was decreed by the trial court except with respect to 4 items. The High Court in appeal, however decred those items also.\n\nThey were : (I) the respondent was ordered to carry out certain work with respect to the first two items and the respondent intimated his rate as required by cl. 14. The Engineer-in-charge did not cancel the order or give the_ contract for. the extra work to any other contractor, and therefore. the High Court held that the amount due to the respondent for the extra work was to be calculated on the basis of the rate specified in the notice; (2) the respondent was assured by the appellant that the work was to be completed in accordance with the \"pecifications in. the agreement. and that no alteration would be made therein, but in fact an alteration was made as a result of whkh the respondent became entitled to lesser amount and the High Court held he was entitled to the difference; and (3) the appellant represented to the respondent that the appellant would entrust the respon<; lent with another item of work bu, t, contrary to the\n\nreprcsenation, got the work done by another without giving notice in writing to the respondent and hence, the High Court held that the respondent was entitied to compensation.\n\nIn appeal. to thi\" Court, it was contended; (1 l. that with respect to the first 2 items in view of cl. 14 the respondent was entitled only to the rate Js fixed .by the Engineer-in-charge;\n\n0 ('2) with respect to the 3rd item since the Engineer-in-\n\n.chare was entitled to ':hange the specifications, the respondent was not en:1tled\n\nto compensation in view of Cl. 15; (3) with respect to the 4th item no notice was necessary before getting the work done by another contractor; and ( 4) the su!t was barred by limitation under s. 64 of the Bombay Housing Board Act, 1948, which provides a 6 .. month period of limitation for any suit for anything done or purporting to have been done in pursuance of the Act, because th,; a:t Of entering into a •:ontract was an act done in pursuance of the Act. and so a . claim for damages for breacl) of th~ contract would come within the pu.rview two items.\n\n[412E-F]\n\nHELD : ( J) The High Court was wrong in allowing the claim on the first .two items.\n\n[412E, F]\n\nThe :fligh Court erred in holding that cl. 14 was inapplicable.\n\nThe High Court was also wrong in holding that if the clause was apr; licable it gave the C Engineer-in-char2e an absolute power to fix the rate and that it was unjust. UI'til the rates were settled by agreement the respondent was under no obligation to carry out the additional or altered work.\n\nThe respondent could legitimately have sitid that in the absen:e of scheduled rates in the division for the type of work .or an agreement in regard to the rates, it was not bound to carry out the additional or altered work.\n\nMerely because the Engineer-in-charge did 'not exrcise his liberty to cancel the contract after receiving notice of the respondent's rate, it cou.ld not be said that there was a concluded contract D between the parties for payment at those rates.\n\nThe fact th.at an exp!\"oss power was given to the Engineer-in-charge by the clause to cancel th~ order if he did not agree to the rate would not mean that the failure to cancel the order would result in an agreement as to the rate or rates. In the , absence of !; ome positive act on the part of the. Engineer-in-charge agreeing to the rate, there was no agreement as to the rate \"nd the respondent was not bound to carry out the work. The provision regarding fixation of rate by the Engineer-in-charge and 'by the Se.perintending Engineer was intended to cover :ases. where the notice specifying the ra_te was not given by the contractor, or when, even though the E notice was given, the Engineer-in-charge did not cancel the order in the <•vent of his not agm:ing to . the rate specified in the notice, and the contrai:tor commences work and incurs expenditure.\n\n[412B-E]\n\n(2) The High Court was right in its conclusion with respect 10 the 3rJ item that cl. 15 had no application and that the claim was well-founded.\n\nThe nature of the work was such that by altering the specifkation, there was not only no curtailment of work but there was in fact an increase of work in vol vi11g F additional cost.\n\n[413G]\n\n( 3) The observance of the condition as regards the written notice in cl. 15 was mandatory, and since no such notice was given, the respondent 'was entitled to damages.\n\n[414B]\n\n( 4) The contra.:! entered into by the Board for construction of buildin:'s is :an act done in pursuance of the provisions of the Act; and it makes no diffe1:ence whether the contract was entered into with the Board or that it was deemed to be entered into with the Board. But the act complained of in this cast: bv the respondent was tne non-payment of the amount alleged to be due to the\n\nrespondnt on the basis of a breach of the contract; and that act .:ould no~ be said to have been done or purported to have been done in pursuance of the Act.\n\nI~ cou!d not said that the breach complained of had any reasonable cor.nect10n with any duty cas: upon the appellant or its agents bv the Act. [ l 5 B\n\n.:J7B] . . ,\n\nThe Trustees of Port of Bombay v. The Premier Automobiles Ltd . . .\\.LR. 1974 s.c. 1123, followed.\n\nThe Municipal Borough of Ahmedabad v. Jarn11ti/a/ Cheeta/a/ Patel l.L.R. 194i Born. 841, approved. • '\n\nArhima1111il Muhammad v. The Malabar District Board, I.L.R. 58 Madrns 746 and Jalgaon Borough Municipality v. The Khandesh Spinning and Weal'ing' Mills Co. Ltd. I.LR. 1953 Bombay 590, referred to.\n\nCIVIL APPELLATE JURISDICHON : Civil Appeal No. 13 of 1968.\n\nFrom the judgment and order dated the 29th/30th January, 1963 of the Bombay High Court ir First Appeal No. 51 of 1957.\n\nS. T. Desai, D. D. Kango, P. C Bhartari and K. J. John, for the appellant. . ·\n\nSharad Manohar, B. P; Maheshwari, Randhir Jain antl Suresh Sethi. for the respondent -\n\nThe Judgment of the Court was delivered by\n\n, . MATHEW, J.~This is an appeal by the defandant on the basis of a certificate r.galnst a decree passed by the High Court of Bombay in nppcal from a dceree in a suit for recovery 'Of balance of amount due on account of extrn construetion work carried out by the plaintiff respondent. .\n\nThe State of Bombay prepared a scheme for construction of blocks in 'Sholapur and invited tenders for the same. The respondent, a firm, submitted it, s. tender on 29-7-1948.\n\nThe tender was in B-1 form. otherwise known as percentage ti:ader.\n\nThe tender was accepted on 6-12-1948 by the Labour Department on behalf of the State of Bombay. The Bombay Housing Board came into being with the passing of the Bombay Act 69 of 1948 and under s. 54 of, that Act, the above contract shall bie deemed to have been entered ir, Jto with the Board.\n\nThe order to carry out the work was issued to the respondent by the Housing Commissioner on 15-8-1948.\n\nThe construction was: to be completed within one year from the date nf the order.\n\nThe time was extended and the work was actually completed in March, 1950 F and possession was taken by the 1appel!allt some time between 5-5-1950 and 30-5-1950.\n\nThe amount paid to the respondent on 30-3-1951 under the final bill was accepted bv it under protest.\n\nAs the disputes between the parties in respect of the claims made by the resp'Ondent could not be settled by agreement, the respondent filed ·· the suit. -claiming under 4 items, namely, A to D, a Sll'm of\n\nG Rs. 38,000-8-0. ·\n\n. As we are concerned in this appeal only with the claims specified in A-3, A-4, C-1 and C-2, it is not necessary to refer to the contentions of the appellant in respect •of the other ite:ns.\n\nIn regard to the claims in items A-3 and A-4, the appellant contended that they were for extra works carried out by the resoondent without any agreement as to the rate to be charged and therefore the resoondent was entitled H to have the claim settled on the basis of the provision in clause 14 of the contract for rnch works and that claims in item C-1 and C-2 were not maintainable by virtne of clause 15 in the contract and that the suit was barred by limitation. ·\n\nThe trial court decreed the suit for a sum of Rs. 2,865-0-0 with proportionate cost and future interest. It dismissed the claims made under items A-3, A-4, C-1 and C-2.\n\nThe respondent filed an appeal before the High Court for the balance of its claim and the appellant filed if cross appeal.\n\nThe High Court dec:reed the claims in items A-3, A-4, C-1 and B C-2 and the sole question in this appeal is whether the claims in these items were sustainable in view of clauses 14 and 15 of the contract between the parties and whether there was evidence to establish thm.\n\nThe amount. claimed in item A-4 was Rs. 8,239 and that was mainly in respect of, the work of filling 11p of ditches, etc., which was done by the respondent under the order of the appellant.\n\nThe order C to carry out this extra work was given on 7-11-1949.\n\nThe respondent intimated by notice in writing, as required by clause 14, the' rate for carrying out th1~ work.\n\nThe Engineer-in-charge did not exercise his liberty to cancel the order, or give the contract for the edra\n\nwork to any other contractor.\n\nThe respondent's case was that the amount due to it for the extra work under item A-4 was to be calculated on the basis of the rate specified in the notice.\n\nThe appellant D contended that in view of clause 14 'Of the contract, the respondent was entitled only -to the rate as fixed by the Engineer-in-charge.\n\nSo, the quesiion for consideration in respect of item A-4 is whether, in view of clause 14 of the contract, it was open to the respondent to make the claim on the basis 0£ the rate quoted by it in the notice.\n\nClause 14 provides : E\n\nAlterations in specifications and designs not to invalidate contracts--\n\nThe Engineer-in-charge shall have power to make any alterations in, or additions to, the original specifications, drawings, designs and instructions that may appear to him to be necessary or advisable during the progress of the work, and the contractor shall be bound to carry out the work in accordance with any instructions in this connection which may be given to him in writing signed by the Engincer-incharge and such alteration shall not invalidate the contract; and any additional work which the contractor may be directed t'O do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work, and at the same rates as are specified in the tender for the main work.\n\nAnd if the additional or altered work include any class of work for which n'O rate is specified in this contract, then such class of work shall be carried out at the rates entered in the Schedule of Rates of the Division or at the rates mutually agreed upon between the Engineer-incharge and the contractor; whichever are lower. If the additional or alter1ed work, fur which no rate is entered in\n\n1-1\n\nBOMBAY HOUSING BOARD v. K. NAIK & co. <tiathew, J.) 411\n\nthe Schedule of Rates of the Division, is ordt.ed to be carried out before the rates are agreed upon the the contractor shall, within seven days of the date of re ipt by him of the order to carry out the work, infvPm the Engineer-in- . charge of the rate which it is his intention to charge for. such class of work, and if the Engineer-in-Charge does not agree to this rate he shall by notice in writing be at liberty to cancel his order to carry out such class of work, and arrange to carry it out in such manner as he may consider advisable, provided always that if the contractor shall commence work or incur any expenditure in regard thereto before the rates shall have been determined as lastly hereinbefore menti'oned, then in such case he shall only be entitled to be paid in respect of the work carried out or expenditure incurred by him provide (previous ?) to the date of the determination of the rate as aforesaid according to such rate or rates as shall be fixed by the Engineer-in-charge.\n\nIn the event of a dispute, the decision of the Superintending Engineer of the Circle will be final.\"\n\nIt is clear from the clause that where any additional or altered work is directed to be carried out and no rates are entered in the Schedule of Rates in the Division or agreed to, then, the CO'atractor may, within seven days of the order, give notice of the rate he intends to charge.\n\nJn such •a case, the Engineer-in-charge would be at liberty to cancel the order if he does not •; gree to the rate stated by the contractor and get the work done by any other agency.\n\nWhere, however, the Engi- \\1eer-in-charge has not cancelled the order for additional or altered work and the contractor has commenced work and incurred expenditure, the contractor shall only be entitled to be. paid at such rate or rates as may be fixed by the Engineer-in-charge.\n\nIn any such case if the contractor is dissatisfied, he may raise a dispute about the rate or rates so fixed by the Engineer-in-charge. Where such dispute is raised, the Superinteading Engineer will decide the same and his decision will be fin•al.\n\nWe do not think that the respondent was boµnd to carry out the additions' and alterations as there was no reply to the notice stating the rates it intended to charge. But it was free to commence and complete the work on the basis that .since the rates quoted by it were ~1ot accepted, it would be paid at such rates to be fixed by the Engineer-in-charge and that if it was dissatisfied with the rate or rates fixed by the Engineer-iri-charge, if could raise a dispute before the Superintending Engineer and that the time limit for completion would be extended in all cases of additions or alteratio•as as stated in the fast sub-para of clause 14.\n\nThe High Court was of the view that clause 14 had no application because it thought that the respondent was bound to carry out the work as directed by the Engineer-in-charge even when there was no •agreement as regards the rate to be charged for the extra work, as the nature of work in some cases would be such that if the work was not completed at the time when the work was to be completed, the cont-\n\n412 SUl'REME COURT REPORTS [1975] 3 s.c.R.\n\nractor would have to do much extra work over and above the actual work imolved. The Court also said that clause 14 gave the Engineerin-charge oan absolute power to fix the rate and that would be unjust and therefore the Court decreed in fulrthe amount claimetl under items A-3 and A-4.\n\nWe think that until the rates were settled by agreement the respondent was under no obligation to carry out the additional or altered work. The responde',1t could legitimately have said that in the absence of scheduled rates in the division for the type of work in question or an agreement in regard to the ra_tes, it was not bound to carry out the additional or altered work.\n\nWe are not satisfied that since the Engineer-in-charge did not exercise his liberty to cancel the order, there was a concluded contract between the parties. The failure to cancel the order for additional or aHered work on receipt of the notice specifying the rate would Mt result in an agreement as to the rate to be charged. The clause only gave the Engineer-in-charge the liberti; to cancel the order and g(:t the work done by •another contractor. 'The . fact that an express power was giw.1 to the Engineer-in-charge by t, he clause to cancel the order if he did not agree to the rate would not mean that the failure to cancel the order would result in an agreement as to the rate or rates. The proviso in clause 14 was intended to cover cases where the notice specifying the rate was not given by. the contractor, or where, even though the notice was give',1, the Engineer-incharge did not cancel the order in the event of his not agreeing to the rate specified in the notice.\n\nWe are of the view that in the absence of some positive act on the part of the Engineer-in-charge agre.::ing to the rate. there i, vas no agreement as to the rate a'ad that the respondent was not bound to carry out the work.\n\nIn this view of the matter. we think that the High Court went wrong in allowing the claim in item A-4. ~\n\nThe claim under Item A-3 stands on the same footing as the claim under item A-4 and, therefore, that claim has also to berejected.\n\nThe next question is whether the High Court was justifi.::d i'.1 decreeing the claims in items C-1 and C-2.\n\nItem C-1 was a claim for Rs. 9,0001-. The respondent's case was that there was assurance by the appellant that the work was to be completed in accordance with the specifications in the agreement and th-at\n\nno alteration W?uld _be nade therein. According to the respondent, G as per the specificat10n. 1t was to do the work with 5\" thick R.C.C. slab over B and B-1 type of blocks to cover an area of about 61,000 sq. ft. and the mte at which the respondent agreed to do the work was\n\nJ.3.s. 2-15-6 per sq. ft. The further 'case of the respondent was that it agreed to. do the construction work after estimating the cost of the entire construction as a wol~ acl after. makbg a calculation of the profit and loss on that basis 111 different items of work and it had sustained u: loss because it had to do a different type of work for which it could \"\" make no estimate in a•aticipation. The-order to carry out the work in the altered form was communicated to the respondent on 27-1-1949.\n\nIt protested against it saying that it will hav.:: to use extra quantity of iron and claimed 6 annas extra per sq. ft. over the rate for 4t\" slab which it had given for 'A' type block. The appellant turned dowa the demand and the respondent had to do the work with 4t\" R.C.C. stabs over the area of 24,000 sq. ft. According to the re~?ondent, if it were to do the work with 5\" slab according to the origina specification over the area of 24,000 sq. ft., it would have used 27,00~':lbs. of iron as re.inforcement and would have got Rs. 71,250 for the work, but, because of the reduction in the size of the slab, it was required to put fa 44,000 lbs. of reinforcement and was to be paid Rs. 60,000 only .. On the other hand, the appellant contended that the Engineer-in-charge was entitled to change the specification under the contract and the respondent was not entitled to claim any damage arising from the change in the nature of the work and relied upon clause 15 for this purpose.\n\nThe High Coui't held that clause 15 had 110 application.\n\nWe do not think that the High Court was hi. error. Clause 15 empowers the Engitteer-incharge to step or to reduce the whole 0£ the work specified in the tender if he thinks it necessary to do so and the contractor has no right to claim any compensation whatsoever on account of such stoppage or reduction in the work. The clause also provides that the watractor shall have no right to claim any payment or compensation on account of any profit or advantage which he might have derived from the execution of the work in full but which he did not derive in consequence of the full amount of the work not having been carried out or on account of any loss that he may be put to o'.1\n\naccount of materials purchased or agreeld to be purchased or for unemployment of labour recruited by him.\n\nThe clause further provides that the contractor shall not also have any claim for compensation by rcason of any alteration having been made in the original spccificatim1s, drawings, design or in8truction which may involve curtailment of work as originally contemplated.\n\nJn its evidence, the respondent staled that it put slabs of 41'' thick- ',1CS'> in an. area mcasi; ring 24.000 so. fl. oat of a:1 area of 61.000 sq. ft. and that it hml w put ~4,000 ivs. f rcinf,_; rcc:nc::nt instead of 27 000 lbs. and so it must be paid for the extra 17,000 lbs. a sum of Rs. 9,000/-. The High Court took the view that this involved no reduction or curt2ili;1ent in thC' wNk and as the alteration involwi a.dditional cost to the respondent. it c2nnot be said that there was reduction or curtailn1cnt.of work. h othc-l' words, the H'r:h Court was of the view that the n-ature of the work was such that there was not only no crniailment of work but an increase of work involving additional cost. We think the High Court was right in its conclusion that clause 15 h:ls no application and that the c12.im was well fouaded.\n\nThe respondent had claimed Rs. 9,097 /- from the appellant in respect of item C-2. n the plaint the respondent stated that the appel- H lant represented to 1t that the appellant would entrust the respondent with the pipeline work menti011ed therein but that the appellant, contrary to representation, got the work done by another contractor and, therefore, the respondent was entitled to compensation for it. 12-423SCil75\n\nThe High Court found that as it was provided in clause 15 that before the Engineer-in-charge could stop the work and get the work\n\ndm1e by another contractor, he should give the respondent a written notice and as such a notice was not given, the respondent was entitled to damage.\n\nWe see no reason to think that observance of the condition as regards the written notke was not mandatory. We see no force ia the argument that the written notice was not necessary as that was i; pecifically provided for in the clause.\n\nThe last point for consideration is whether the suit was barred by limitation •as it was not brought within six months of the act complained of.\n\nThe High Court was of the view that s. 64 of the Bombay Houshlg Board Act, 1948 has no application as the claims were for damages for breach of contract. . '\n\nSection 64 provides :\n\n\"No person shall commence any suit against the Board. or against any oflicer or servant of the Board or any person. acting under the orders of the Board, for anything done or purporting to have been done in pursuance of this Act, with-·\n\nout giving the Board, officer, or servant or person two months' previous notice in writing of the intended suit and of thf: cause therMf, nor after six months from the date of the act Complained of.''\n\n\"Anld in the case of any such suit for damages, if tender of sufficient amends shall have been made before the action was brought, the plaintiff shall not recover more than the amounts so tendered and shall pay all costs incurred by the defendant after such tender.\" The appellant submitted that the act of C'11tering into the contract was an act done or purporting to have been done in pursuance of the Act and therefore. any claim for money as damages for breach of the contract by the respondent would come within the purview olf the section.\n\nThe Preamble of the Act provides :\n\n\"Whe:reas it is expendient to take such measures, to make such schemes and to carry out such works as are 'necessary for the purpose of dealing with and satisfying the need of housing accommodation and with that object in view it is necessary to establish a Board and to make certain other provisions hereinafter appearing; It is hereby enacted as follows.\"\n\nSection 19 provides tliat the Board ma:; enter into all such coi1tracts as it may consider necessary for carrying out the purposes of the Act.\n\nSection 23 ( 1) states that the Board may incur expenditure and undertake works for framing and execution of housing schemes. Section 23 ( 2) says that the government may entrust to the Board the framing\n\nand execution of any housing scheme. Therefore, the Board has statutory duty to frame schemes for construction of houses and execute them. Section 24 (f) would also indioate that the purpose of a scheme is construction of houses. In these circumstances, we think that the contract entered rato by the Board for construction of buildings might be an act done in pursuance to the provisions of the Act. We will also assume that it makes no difference whether the contract was enten::d into with the Board or whether it was deemed to be entered. into with the Board under s. 54 of the Act. But the question is whether the act complained of, n•amely, the no'a-payment of a claim for money based on breach of contract, was an act done or purporting to have been done in pursuance of the Act.\n\nThere can be no doubtthat the act complained of by the respondent was the no•a-payment of money . as damages or compens•ation resulting from an alleged breach of contract.\n\nln The Municipal Borough of Ahmedabad v. Jayantilal Chhotalal Patel (1) the Court held that when a municipality has power to, enter into a contract under the Municipal Boroughs Act and the municipality purports to exercise its power to enforce such contract, any act done in the exercise of its power to e'aforce the contract is not in pursuance of the Act but in pursuance to the contract and, therefore, a suit brought against the municipality for return of deposit under a contract to clean the streets was not a suit of the type described in s. 206 of the Bomboay Municipal Boroughs Act, 1925 which is in pari materia with s. 64 of the Act. In the course of the judgment, Chagla, J. (as he the,1 was) observed that what the plaintiff sought to enforce was, the right which came into existence as a result of the contract entered into between the plaintiff and the municipality and not a public duty cast upon the municipality by the st•atute, that in forfeiting the deposit, the municipality was not acting in purslia',1ce to the power given to it under statute but was doing so in pursuance of a power given to it undi:r the contract and, therefore, the suit to enforce rights under the contract entered into with the municipality which the municipality was 'L10t under any obligation to enter into, cannot fall with the ambit of the section. We think that the decision lays down the law correctly and that the principle deducible from it is applicable to the facts here.\n\nMr. S. T. Desai referre'd to the decision of the Madras High Court . in Athimannil Muhammad v. The Malabar Di!iitrict Board(2) and said that the decision therein would govern the instant case. That was a case where a suit was filed against the District Board more than six months after the date of the •accrual of the cause of actim, claiming damages on the ground that its P1esident improperly cancelled a contract of lease for one year of the tolls in certain places. which was stated to have been entered into by the plaintiff with the Board through its \"'.ice President. The President in performance of what he thought was !us duty under the Madras Local Boards Act accepted a higher offer by another persm1 and the necessary consequence of it was cancellation o.f !he .acceptance of t?e plaintiff's offer. It was held that though the d1stmct1on between act10ns on contract a'i1d actions independent of con-\n\n(!) (I.L.R.) 1947 Born. 841\n\n(2) J.L.R. 58 Madras 746.\n\ntract mav be convenient enough as a working rule, the real test to be applied was whether what -was complained of -:vas. some at done in pursuance of a statute. Varadachariar, J. in delivermg the iudgrnent of the Court saitl that the cancellation of the acceptance of the offor was the necessoary result of what the President thought was his duty in accordance with the terms of the Act as he interpreted them namely to accept the highest tender and that he did this on the footing !hat the Vice President's acceptance of the plaintiff's tender was not In compliance with the Act. He further said that the right to collect tolls was a special privilege conferred upon local bodies by statute and that they were authoriz~'d. either to manage the collection of the tolls themselves or through their own agency or to lease them out, and that in any case what the President as representing the Board did in connection with the leasing out of the right to levy tolls was undoubtedly an act done in execution of his powers or duties under the Act.\n\nWe need\n\n1,10t consider the correctness of this decision as, ev1:n on the &ssumption that it is correct, it has no application to the facts here.\n\nThere the Court found that the act complained of had reasonable connection with the discharge of his statutory duty as President or at any rate, he thought that it was his statutory duty as President to accept the highest bid.\n\nThe distinction between an act done with some semblance of authority or show of right and a prima fade illegal act in this context has been clearly pointed out in the decision in Jalgao11 Borough Municipality v. The Khandesh Spinning and Weaving Mills Co. Ltd.( 1) where the question was whether-notice under s.206 of the Bombay Municipal Boroughs Act, 1925, was necessary before filing a suit to recover a sum of money on the basis of a contract.\n\nThe Court held that an act which is Prima f acie illegal is not within the category of acts done or purported to have bee'i1 done in pursuance of that Act, and that it is only an act do1nc under a vestige or semblance of authority or with some show of a right that would fall within the category.\n\nBhagwati, J. in the course of his judgment said that the acts which would fall within the category of those do_ne or purported to have been done in pursuance of the Act could only be those which were done under a vestige or sembhmcc of authority, or with some :; how of a right and that the distinction between ultra vires and illegal acts on the one hand and wrongful acts on th~ othe; wrongful in the sense that they purport to have ben done in pursuc'ace of the Act is that they arc intended to have been done in pursuance of the Act and are done with a vestige or semblance of authority or sort of a right invested in the party doing those acts.\n\nIn The Tmstees of Port of Bombay v. The Premier Automobiles Ltd.e) section 87 of the Bombay Port Trust Act 1879 which is in pari materia with s.64 .of the Act fell for cons.ideratin ana' the question was whethr short del!very by a statutory bailee was something done or purportmg to have been done under the proviions of that Act. In the course of the judgment, Krishna Jyr., T., speaking for the Court,\n\n(l) l.L.R. (1953) Bombay 590\n\n(2) A.LR. 1974 S.C. 923\n\nsaid that a suit for damages for breach of contract would not attract the sectior. (see para 46 of the judgment).\n\nAs we said, the act complained of in this case was the n0\\1-payment of the amount alleged to be due to the respondent on the basis of the breach of the contract between the parties.\n\nWe do not think that the act complained of could be said to h•ave been done or purported to have been done in pursmrace of the Act. 1 By no stretch of imagination could it be said that the breach complained of had any reasonable connection with any duty cast upon the appell•ant or its agents by the Act.\n\nIn the result, we disallow the clainis of the respondent in items A-3 and A-4 set aside the decree of the High Court to that extent. We affirm the decree of the High Court in respect of the claims in items C-1 and C-2.. The appeal is allowed to the extent indicated but is dismissed in other respects.\n\nWe direct the parties to bear their cost in this Court.\n\nV.P.S.\n\nAppeal allowed in part.", "total_entities": 75, "entities": [{"text": "BOMBAY HOUSING BOARD (NOW THE MAHARASHTRA\n\nHOUSING BOARD", "label": "PETITIONER", "start_char": 7, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "BOMBAY HOUSING BOARD (NOW THE MAHARASHTRA HOUSING BOARD)", "offset_not_found": false}}, {"text": "KARBHASE NAIK & CO., SHOLAPUR", "label": "RESPONDENT", "start_char": 73, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "KARBHASE NAIK & CO., SHOLAPUR", "offset_not_found": false}}, {"text": "January 29, 1975", "label": "DATE", "start_char": 104, "end_char": 120, "source": "ner", "metadata": {"in_sentence": "SHOLAPUR\n\nJanuary 29, 1975\n\n[K. K. MATHEW, P. N, BHAG'YATI AND N. L. UNTWALIA, JJ.]"}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 123, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 157, "end_char": 176, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "s. 64", "label": "PROVISION", "start_char": 222, "end_char": 227, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Housing Board Act, 1948", "label": "STATUTE", "start_char": 456, "end_char": 486, "source": "regex", "metadata": {}}, {"text": "Clause 14", "label": "PROVISION", "start_char": 622, "end_char": 631, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Housing Board Act, 1948", "statute": "the Bombay Housing Board Act, 1948"}}, {"text": "Clause 15", "label": "PROVISION", "start_char": 1456, "end_char": 1465, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Housing Board Act, 1948", "statute": "the Bombay Housing Board Act, 1948"}}, {"text": "cl. 14", "label": "PROVISION", "start_char": 2849, "end_char": 2855, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 14", "label": "PROVISION", "start_char": 3912, "end_char": 3918, "source": "regex", "metadata": {"statute": null}}, {"text": "Cl. 15", "label": "PROVISION", "start_char": 4173, "end_char": 4179, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 64", "label": "PROVISION", "start_char": 4339, "end_char": 4344, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Housing Board Act, 1948", "label": "STATUTE", "start_char": 4352, "end_char": 4382, "source": "regex", "metadata": {}}, {"text": "cl. 14", "label": "PROVISION", "start_char": 4853, "end_char": 4859, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Housing Board Act, 1948", "statute": "the Bombay Housing Board Act, 1948"}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 6604, "end_char": 6610, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 6930, "end_char": 6936, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 8285, "end_char": 8302, "source": "ner", "metadata": {"in_sentence": "From the judgment and order dated the 29th/30th January, 1963 of the Bombay High Court ir First Appeal No."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 8336, "end_char": 8347, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. D. Kango, P. C Bhartari and K. J. John, for the appellant. . ·", "canonical_name": "S. T. Desai"}}, {"text": "D. D. Kango", "label": "LAWYER", "start_char": 8349, "end_char": 8360, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. D. Kango, P. C Bhartari and K. J. John, for the appellant. . ·"}}, {"text": "P. C Bhartari", "label": "LAWYER", "start_char": 8362, "end_char": 8375, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. D. Kango, P. C Bhartari and K. J. John, for the appellant. . ·"}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 8380, "end_char": 8390, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. D. Kango, P. C Bhartari and K. J. John, for the appellant. . ·"}}, {"text": "Sharad Manohar", "label": "LAWYER", "start_char": 8416, "end_char": 8430, "source": "ner", "metadata": {"in_sentence": "Sharad Manohar, B. P; Maheshwari, Randhir Jain antl Suresh Sethi."}}, {"text": "Randhir Jain antl Suresh Sethi", "label": "LAWYER", "start_char": 8450, "end_char": 8480, "source": "ner", "metadata": {"in_sentence": "Sharad Manohar, B. P; Maheshwari, Randhir Jain antl Suresh Sethi."}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 8552, "end_char": 8558, "source": "ner", "metadata": {"in_sentence": "MATHEW, J.~This is an appeal by the defandant on the basis of a certificate r.galnst a decree passed by the High Court of Bombay in nppcal from a dceree in a suit for recovery 'Of balance of amount due on account of extrn construetion work carried out by the plaintiff respondent. ."}}, {"text": "State of Bombay", "label": "ORG", "start_char": 8840, "end_char": 8855, "source": "ner", "metadata": {"in_sentence": "The State of Bombay prepared a scheme for construction of blocks in 'Sholapur and invited tenders for the same."}}, {"text": "Sholapur", "label": "GPE", "start_char": 8905, "end_char": 8913, "source": "ner", "metadata": {"in_sentence": "The State of Bombay prepared a scheme for construction of blocks in 'Sholapur and invited tenders for the same."}}, {"text": "6-12-1948", "label": "DATE", "start_char": 9106, "end_char": 9115, "source": "ner", "metadata": {"in_sentence": "The tender was accepted on 6-12-1948 by the Labour Department on behalf of the State of Bombay."}}, {"text": "State of Bombay", "label": "GPE", "start_char": 9158, "end_char": 9173, "source": "ner", "metadata": {"in_sentence": "The tender was accepted on 6-12-1948 by the Labour Department on behalf of the State of Bombay."}}, {"text": "Bombay Housing Board", "label": "ORG", "start_char": 9179, "end_char": 9199, "source": "ner", "metadata": {"in_sentence": "The Bombay Housing Board came into being with the passing of the Bombay Act 69 of 1948 and under s. 54 of, that Act, the above contract shall bie deemed to have been entered ir, Jto with the Board."}}, {"text": "s. 54", "label": "PROVISION", "start_char": 9272, "end_char": 9277, "source": "regex", "metadata": {"statute": null}}, {"text": "15-8-1948", "label": "DATE", "start_char": 9466, "end_char": 9475, "source": "ner", "metadata": {"in_sentence": "The order to carry out the work was issued to the respondent by the Housing Commissioner on 15-8-1948."}}, {"text": "5-5-1950", "label": "DATE", "start_char": 9698, "end_char": 9706, "source": "ner", "metadata": {"in_sentence": "The time was extended and the work was actually completed in March, 1950 F and possession was taken by the 1appel!allt some time between 5-5-1950 and 30-5-1950."}}, {"text": "30-5-1950", "label": "DATE", "start_char": 9711, "end_char": 9720, "source": "ner", "metadata": {"in_sentence": "The time was extended and the work was actually completed in March, 1950 F and possession was taken by the 1appel!allt some time between 5-5-1950 and 30-5-1950."}}, {"text": "30-3-1951", "label": "DATE", "start_char": 9760, "end_char": 9769, "source": "ner", "metadata": {"in_sentence": "The amount paid to the respondent on 30-3-1951 under the final bill was accepted bv it under protest."}}, {"text": "clause 14", "label": "PROVISION", "start_char": 10532, "end_char": 10541, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 15", "label": "PROVISION", "start_char": 10644, "end_char": 10653, "source": "regex", "metadata": {"statute": null}}, {"text": "7-11-1949", "label": "DATE", "start_char": 11530, "end_char": 11539, "source": "ner", "metadata": {"in_sentence": "The order C to carry out this extra work was given on 7-11-1949."}}, {"text": "clause 14", "label": "PROVISION", "start_char": 11604, "end_char": 11613, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 14", "label": "PROVISION", "start_char": 11993, "end_char": 12002, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 14", "label": "PROVISION", "start_char": 12185, "end_char": 12194, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 14", "label": "PROVISION", "start_char": 12314, "end_char": 12323, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 14", "label": "PROVISION", "start_char": 16389, "end_char": 16398, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 14", "label": "PROVISION", "start_char": 16437, "end_char": 16446, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 14", "label": "PROVISION", "start_char": 16955, "end_char": 16964, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 14", "label": "PROVISION", "start_char": 18224, "end_char": 18233, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 19557, "end_char": 19561, "source": "regex", "metadata": {"statute": null}}, {"text": "27-1-1949", "label": "DATE", "start_char": 20044, "end_char": 20053, "source": "ner", "metadata": {"in_sentence": "The-order to carry out the work in the altered form was communicated to the respondent on 27-1-1949."}}, {"text": "clause 15", "label": "PROVISION", "start_char": 21013, "end_char": 21022, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 15", "label": "PROVISION", "start_char": 21068, "end_char": 21077, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 15", "label": "PROVISION", "start_char": 21151, "end_char": 21160, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 15", "label": "PROVISION", "start_char": 22927, "end_char": 22936, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 15", "label": "PROVISION", "start_char": 23467, "end_char": 23476, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 64", "label": "PROVISION", "start_char": 24120, "end_char": 24125, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Houshlg Board Act, 1948", "label": "STATUTE", "start_char": 24133, "end_char": 24163, "source": "regex", "metadata": {}}, {"text": "Section 64", "label": "PROVISION", "start_char": 24243, "end_char": 24253, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Houshlg Board Act, 1948", "statute": "the Bombay Houshlg Board Act, 1948"}}, {"text": "Section 19", "label": "PROVISION", "start_char": 25648, "end_char": 25658, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 25792, "end_char": 25802, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 25918, "end_char": 25928, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24", "label": "PROVISION", "start_char": 26136, "end_char": 26146, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 54", "label": "PROVISION", "start_char": 26566, "end_char": 26571, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206", "label": "PROVISION", "start_char": 27504, "end_char": 27510, "source": "regex", "metadata": {"statute": null}}, {"text": "Bomboay Municipal Boroughs Act, 1925", "label": "STATUTE", "start_char": 27518, "end_char": 27554, "source": "regex", "metadata": {}}, {"text": "s. 64", "label": "PROVISION", "start_char": 27585, "end_char": 27590, "source": "regex", "metadata": {"linked_statute_text": "the Bomboay Municipal Boroughs Act, 1925", "statute": "the Bomboay Municipal Boroughs Act, 1925"}}, {"text": "Chagla", "label": "JUDGE", "start_char": 27634, "end_char": 27640, "source": "ner", "metadata": {"in_sentence": "In the course of the judgment, Chagla, J. (as he the,1 was) observed that what the plaintiff sought to enforce was, the right which came into existence as a result of the contract entered into between the plaintiff and the municipality and not a public duty cast upon the municipality by the st•atute, that in forfeiting the deposit, the municipality was not acting in purslia',1ce to the power given to it under statute but was doing so in pursuance of a power given to it undi:r the contract and, therefore, the suit to enforce rights under the contract entered into with the municipality which the municipality was 'L10t under any obligation to enter into, cannot fall with the ambit of the section."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 28440, "end_char": 28451, "source": "ner", "metadata": {"in_sentence": "Mr. S. T. Desai referre'd to the decision of the Madras High Court .", "canonical_name": "S. T. Desai"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 28485, "end_char": 28502, "source": "ner", "metadata": {"in_sentence": "Mr. S. T. Desai referre'd to the decision of the Madras High Court ."}}, {"text": "Varadachariar", "label": "JUDGE", "start_char": 29566, "end_char": 29579, "source": "ner", "metadata": {"in_sentence": "Varadachariar, J. in delivermg the iudgrnent of the Court saitl that the cancellation of the acceptance of the offor was the necessoary result of what the President thought was his duty in accordance with the terms of the Act as he interpreted them namely to accept the highest tender and that he did this on the footing !"}}, {"text": "s.206", "label": "PROVISION", "start_char": 31132, "end_char": 31137, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Municipal Boroughs Act, 1925", "label": "STATUTE", "start_char": 31145, "end_char": 31180, "source": "regex", "metadata": {}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 31570, "end_char": 31578, "source": "ner", "metadata": {"in_sentence": "Bhagwati, J. in the course of his judgment said that the acts which would fall within the category of those do_ne or purported to have been done in pursuance of the Act could only be those which were done under a vestige or sembhmcc of authority, or with some :; how of a right and that the distinction between ultra vires and illegal acts on the one hand and wrongful acts on th~ othe; wrongful in the sense that they purport to have ben done in pursuc'ace of the Act is that they arc intended to have been done in pursuance of the Act and are done with a vestige or semblance of authority or sort of a right invested in the party doing those acts."}}, {"text": "section 87", "label": "PROVISION", "start_char": 32288, "end_char": 32298, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Port Trust Act 1879", "label": "STATUTE", "start_char": 32306, "end_char": 32332, "source": "regex", "metadata": {}}, {"text": "s.64", "label": "PROVISION", "start_char": 32363, "end_char": 32367, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Port Trust Act 1879", "statute": "the Bombay Port Trust Act 1879"}}, {"text": "Krishna Jyr", "label": "JUDGE", "start_char": 32583, "end_char": 32594, "source": "ner", "metadata": {"in_sentence": "In the course of the judgment, Krishna Jyr.,"}}]}
{"document_id": "1975_3_418_424_EN", "year": 1975, "text": "CNION OF INDIA & ORS.\n\nTATA IRON & STEEL CO. LTD.\n\nJanuary 31, 1975\n\n[A. N. RAY, C.J., H. R. !(HANNA AND P. K. GOSWAMI, JJ.]\n\nConstitution of India, 1950 Art. 226, 227-Powus of High Court under article 226 & 227 to interfe.re with classification ef a product by taxing a111lwrities.\n\nCentral Excise Act, 1944-Ske/p and strip necessity for idwtifiable rest in fiscal statutes,\n\nThe respondent manufactures hot rolled finished steel products in rectangular\n\n, cross-section of thicknes:; varying between 16.2 mm and 311.2 mm a1_1d rolled C in coils (hereinafter reforred to as the Product). The respondent describes the product as Strip whereas the appellant classifies it as a Skelp. Skelp is subject te higher excise duty than Strip.\n\nThe Assistant Collector, Central Excise treated the product as Skelp.\n\nOn appeal to the Collector of Central Excise, he confirmed it and in revision the Central Government also approved.\n\nThe respondent filed a Writ Petition in the High Court. The High Court\n\nacepted the contention of the respondent.\n\nOn appeal by Special Leave the appellant contended befqre this Court : (i) That it is primarily for the Taxing D Authorities to determine the head or nature under which any particular wmmodity fell. (ii) The Court can interfere with the decision only if it is pc:rverse.\n\nIf there were two constructions possible and if the Taxing Authority accepts one of them the Court cannot interfere.\n\nThe respondent submitted. (i) Assessment without application of an identifiable test is p!:rverse :md arbitrary. (ii) In the present .case. there was no identifiable test before the Taxing Authorities. There is no difference between Skelp E anti Strip.\n\nDismissing the appeal,\n\nHdd : There are large number of definitions out of which one can be picked up to satisfy th1: definition of Skelp according to some authority and another definition to fit in with the concept of strip according to another ::mthority.\n\nSince there is no statutory definition for Skelp and Strip, different tests hfbve been resorted to by the different authorities. The question arises whether the High Court wa;; right in interfering with the orders under Art. 226 of the F Constitu.tion. It is not for this Court to come to. the condusion on fact1.\n\nThe absence of any identifiable standard natmally gives rise to the scope for arbitrarv assessment at the hands of different authorities. It is not possible to hold that the High Court has gone wrong in granting the reliefs prayed for.\n\n(4220-F;\n\n423C]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1527 of 1~~ G\n\nAppeal by Special Leave from the Judgment & Odrer dated the 14th December, 1973 of the Delhi High Court in Civil Writ No. 1678 of 1967. ·\n\nF. S. Nariman, Addi. Sol. Gen. of India, D. N. Mukherjie and R. N. Sahthey, for tllle Appellants.\n\n N. A. Palkhiala, Ravinder Narain, I. B. Dadachanji, 0. C. Mathur, . K. J. John and K. R. lhaveri, for the Respondent. ·\n\nThe Judgment of the Court was delivered .by-\n\nGoswAMI, J. This appeal is by special leave from the judgment of the 1Jelhi High Court m a writ app11cauon there under amc!e 226 of the (.; onstitut1on.\n\nThe respondent manufactures various other items hot rolled finished steel products in rectangular cross-section of thickness varying between 1.7 mm and 6.55 mm and width varying between 16.2 mm and 311.2 mm and rolled in coils which it supplies to the Indian Tube Company Limited at Jamshed-pur for making tubes and also to others. Tim article is subjected to Central Excise Duty under the Central Excises and Salt Act, 1944 (hereinafter called the Act). The dispute between the respondent anld the appellants is that while the former describes the said manufactureld pi:oduct as strip the appellants .classify it as skelp.\n\nThis difference in classifying the product differently results in fiscal misfortune to the respondent since skelp is subjected to a higher Central Excise Duty than strip.\n\nIt may be stated that 'during the period from April 24, 1962 to February 28, 1964, the respondent described its product as skelp and it was subjected then to a lower rate of duty.\n\nFrom February 19, 1964, the respondent chimed that the aforesaid product be classified as strip since there hat! been a levy of higher duty /for skelp. The Assistant Collector, Central Excise, Jamshedpur, whb is the primary taxing authority, the Collector of Central Excise, Patna, in appeal, and the Central Government in revision rejected the contention of the respondent by successive orders, each authority upon its own test of the definition of the product as skelp. That led to the successful writ application of the respondent in the High Court resulting in this appeal.\n\nIn the forefront of his argument the learn<o'd Additional Solicitor General for the appellants relying upon two decisions of this Court, aamely, The Collector of Customs, Madras v. K.\n\nGanga Setty (1) and V. V. Iyer of Bombay v. lasjlt Singh, Collector of Customs and .\n\nAnother, (2) submitted that \"it is primarily for the taxing authorities to determine the heads or entry under which any particular commodity fell; but that if in doing so, these authorities adopted a construction which no reasonable person could adopt i.e., if the construction was preverse then it was a case in which the Court was competent to interfere. Jn other wort:ls, if there were two constructions which an entry could reasonably bear, and one of them which was in favour of Revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject aoneals to the Court as the better one to adont\". On the other hand with equal emohasis Mr. Palkhivitla for the respondent submitted that an assessment without the anolicatirm of an idf\\ntifiable test is nothine but perverse and arhitrarv.\n\nHe: submits that in the nresent ca•Pthe.re was no identifiable test before the taxing authorities by which the\n\n(1) [1963] 2 s. c. R. 277 ..\n\n(2) [197311s.c.c.148.\n\nproduct of the respondent coul\\i b~ held to be skep and not stri~ subjecting the respondent to a heavier duty. Accordmg t? the learned counsel there is no difference between sklep and stnp, the two items being interchangeable.\n\nIt may be noted for our purpose that undr section 3 of t.he Act Central Excise Duties are leviable on all excisable goods which are produced or manufactured in l n\\:lia at the rates set out in the First Schedule. Item No. 26AA in that Schedule relates to iron and steel products and mentions in sub-item (iii) therein fiats, skelp and strips showing the rate of duty in the third column.\n\nUndr rule 8 of the Central Exci~.e Rules,, 1944, made under section 37 of the Act, the Central Government may from time to time by notification in the official gazette exempt, subject to such conditions as may be specified in the notification, any excisable goods from whole or any part of the duty leviable on such goods. In exercise of the power under this rule the Central Government has made such exemptions in the rates of duty as have made it higher on skelp than on strip.\n\nBefore we proceed further we may notice how the various Excise authorities dealt with the matter at dtfferent stages. The first order is that of the Assistant Collector of Central Excise, Jamshedpur, which was on June 17, 1964. According to him \"skelp is the name used in reference to a plate of wrought iron or steel use'rl for making pipe or tubing by rolling the skelp into shape and lap welding or revetting edges together and strip is a term used, to describe a fiat rolled product of smaller cross-section than sheet or bar.\" He accordingly adopted the definition given in Marymen's Dictionary of Metalurgy. The order of the Collector of Central Excise in appeal made on October 24/29, 1964, shows that the authority note(! the definition of strip as follows:- ·\n\n\"Hot or cold rolled finished steel product in rectangular cross-section of thickness below 5 mm and of width below 800 mm and supplied in straight length''.\n\nThis definition is substantially in conformity with the one given by the Indian Standards Institution (ISI). The appellate authority held that \"since the products have not satisfieli the above specifications, they have been correctly classified as 'skelp' by the Assistant Collector .... \". Jhen comes the order in revision of the Central Government of August 18, 1967 .. Inter alia it was held that \"the pr<*:luct does have bevel edges peculiar to skelp and not found in strips. Under the\n\nircumstances, there is no doubt what~_ver that the product in qm:stion 1s correctly classified as skelp\".\n\nFrom the above three orders it is clear that the authorities were\n\not at a!l etain abou! a uniform .definition of 'skelp' distinirnishing 1t from stnp . Extensive arguments were advanced at the bar with regard to the definitions of these two words. We may, therefore, look\n\nUNION v.'IRON & STEEL co. (Goswami,].) 421\n\nat the various definitions to which our attention has been drawn. Since the appellants largely upon the definitions given by the Indian Standards Institution, \"an expert body\", we will first note these definitions.\n\nThe ISI's definitions of strip and skelp as given in IS 19 5 6-1962 (amen, tled upto July 1968) are as follows:-\n\n8 Upto 1965 the ISI gave no description of 'Strip. It had defined skelp in 1962 as follows :-\n\n\"Skelp Hot rolled narrow strip with rolled (square, slightly round or bevelled) edg''.\n\nStrip A hot or cold rolled flat product, rolled in rectangular cross section of thickness 10 mm and below and supplied with mill, trimmed or sheared edge.\n\n(a) Narrow stripstrip (other than hoop) of width belaw 600 mm and supplied. in straight length or in coil form.\n\n(b) Wide Strip- Strip of width 600 mm above and suplied in coil form only.\" Upto 1965 the ISi gave no description of strip.\n\nIt had defined skelp in 1962 as follows :-\n\n\"Hot rolled strip with square or slightly bevelled edges, used for making welded tubes\" •\n\n. E In 1968 the ISI's definition of skelp stands as follows :-\n\n\"Hot. rolled narrow strip with rolled (square, slightly round or bevelled)\n\nedge.\"\n\nStrip was defined by the ISi for the first time in 1965 as follows:-\n\n\"Coiled Strip- A hot or cold rolled flat product, rolled in rectangular cross section and supplied in coil form.\n\nStrip A hot or cold rolled flat product, rolled in rectangular cross- ,. section thickness below 5 mm and of width below 600mm an4 supplied in straight lengths''.\n\nThe ISI's definition of strip given in 1968 is as follows :--\n\n\"A hot or cold rolled flat product, rolled in rectangular cross-section of thickness 10 mm and below and supplied with mill, trimmed or sheared edges.\n\n(a) Narrow strip-Strip (other than hoop) of width below 600 mm and supplied in straight length or in coil form.\n\n(b) Wide strip-Strip of width 600 mm and above and\n\nsupplieli in coil form only\".\n\nAnne1ure 'J' submitted by the respondent along with its rejoinder affidavit in the High Court at page 101 of the record, gives various\n\ndefinitions of ship take'n from various dictionaries and treatises such A as Hornor J. G. Dictionary of Terms, page 323, year 1952; Brandt D.J.C.-Manufacture of Iron & Steel, pages 318 and 319, year 1953; Henderson J.C.-MetaUurgical DictiQnary, page 192, year 19'53; -Backert A.0.L. A.B.C. of Iron & Steel, page 1912, year 1925-5th edition; Chamber's Technical Dictionary, year 1967. Similarly definition of strip is also given from these Dictionaries and books. It is B also pointed out that there is no category of skelp mentioned in Brnssels Nomenclature. British Stantlards 2094!, Part 4; 1954, defines skelp as follows :-\n\n\"Hot rolled strip with square or slightly bevelled edges used for making welded tubes\".\n\nChamber's Tedm.ical Dictionary Revised Edition (Re- C printed 19541) defines skelp as follows :-\n\n\"SkelP'--(P. 77:5) Mild steel strip from which tubes are\n\nmo.Ide by drawing through a bell at welding temperature; to produce 111p welded or butt welded tubes\".\n\nWe may not add to the list but are satisfied that there are a large number of definitions out of which one can be picked up to satisfy the definition of skelp according to some authority and another definition to fit in with the concept of strip according to another authority. Since the duties on strip and skelp are not the same, it is absolutely necessary to define the worti skelp so that there can be no doubt or confusion in the mlnd of either of the taxing authority or of the tax payer with regard to the tax liability aua skelp as opposed to strip. Since, however. there is no statutorv definition of this controversial :Item different tests have naturally been resorted to by the different authorities anrl the same variation is discernible . even in the affidavits of the appellants submitted before the High Court.\n\nThe short question, therefore, that arises for consideration is whether in the above background the High Court was right in interfrring with the orders under ai; ticle 226 of the Constitution. It is not for the High Court nor for this Court to come to a conclusion on facts as to whether the 'product can truly come under the description of skelp. That undoubtedly would require some evidence be taken at the\n\nIeel of the taxing authority provided, however, there is an identifiable, uruform and determinate test by wjich skelp can be properly distinguished from strip. In. the mass of documents filed before us and the extensive arguments addressed at the bar with regard to the definitions culled from various Uictionaries, hand-books and authorities, we are not at all surprised that the three authorities came to the same conclusion bv deoending uoon their own chosen tests.\n\nA oarticular type of strio mav accordine: to certain definitions be skein 11nd accorrllr11? to others not skelt>.\n\nThis. however. cnnot be oermittP<t in a fi•r:i11eitls- 1atio\" which bv all standrcls shoulcl arloot a clear cif'finition of 11~1 excisable item which is incapable of giving rise to a confounding contro-\n\n) '\n\nversy as in this case unless the matter is beyond doubt in view of the popular meaning or meaning ascribed to the term in commercial parlance. ln absence of any clear criterion to detennine what is skelp and not strip, no useful purpose would be served by even remanding the matter to the Excise authorities for a decision after taking necessary evitlence.\n\nIt is only when a taxing law provides for a clear and unequivocal test for determination as to whether a particular product would fall under strip of skelp it may be possible for the authorities to address itself to the evidence submitted by the parties in order to come to a decision on the basis of the test. This is, however, not possible in this case in view of the fact that there is no identifiable standard. The best way is to define the product for the purpose of excise duty in approximate terms demarcating clearly the distinction between the two terms.\n\nThe absence of any identifiable standard would, therefore, naturally give rise to the scope for arbitrary assessment at the hands of different authorities.\n\nWhether this has happeneti in this case, as complained bv the respondent citing the instance of the Hindustan Steel Company, Rourkela, it is not necessary for us to pursue in this appeal.\n\nWe are, therefore, unable to hold that the High Court has gone wrong in granting the reliefs prayed for.\n\nThe appellants strenuously emphasised upon the test relied upon in the Revisional order as to skelp having bevelled edges which, according to them, is peculiar to skelp and not to strip. But this does not bear scrutiny as on the counter-affidavit of the Union of India in the High Court at page 57 of this record it shows that \"as regards tested Hot rolled strips, the edges are never looked into, they can be bevelled, square or have Mill edge\" (emphasis added). This is an admission of the appellants that strips may also have bevelled edges. ·\n\nThe two decisions relied unon hv the annellants do not come totheir aid in this case since there is no identifiable standard or test to determine clearly which product can be skelp and not strip. In Gartga Setty's case (supra) the controversy arose with regard to whether \"feed oats\" fell within item 42 (fodder) or within item 32 (grain) of particular circular.\n\nDealing with the matter this Court observed as follows:-\n\n\" .... any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feed\".\n\nThe decision of the Customs authorities, therefore, this Court held, could not be characterised as perverse or mala fide calling for int01.- ference. Similarly following Ganf!a Setty's case (supra) in Jas; it Sini{s • case (suora) the conclusion and findin!!s of the Customs authorities were accented as reasonable.\n\nJn both the abovtcases therPwere definite tests bv which the particular article could be held to fall uner one item and not under the other and the construction of the authorities\n\n4l4 SUPREME cou&r ll.EPmtTS [1975] 3 s.c.R.\n\nwith TC~ to the scope of the })l\\rt.icwar::entries was, therefore, held to be reaSonable and not calf'mg for interference by the court The question that arises in the instant case is of a contple; ely different nature as pointed, out above there being no j(lehtifiable test reasonably capable of distingaiflhing skelp from strip.\n\nIn the result the appeal fails and is disfllissed with costs.\n\n. P.H.P.\n\nAppeaL dismissed .", "total_entities": 43, "entities": [{"text": "CNION OF INDIA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "TATA IRON & STEEL CO. LTD", "label": "RESPONDENT", "start_char": 23, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "TATA IRON & STEEL CO. LTD", "offset_not_found": false}}, {"text": "January 31, 1975", "label": "DATE", "start_char": 51, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "January 31, 1975\n\n[A. N. RAY, C.J., H. R. !("}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 70, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 126, "end_char": 147, "source": "regex", "metadata": {}}, {"text": "Art. 226, 227", "label": "PROVISION", "start_char": 154, "end_char": 167, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 226 & 227", "label": "PROVISION", "start_char": 194, "end_char": 211, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Central Excise Act, 1944", "label": "STATUTE", "start_char": 284, "end_char": 308, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2161, "end_char": 2169, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "F. S. Nariman", "label": "PETITIONER", "start_char": 2711, "end_char": 2724, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Addi."}}, {"text": "D. N. Mukherjie", "label": "LAWYER", "start_char": 2752, "end_char": 2767, "source": "ner", "metadata": {"in_sentence": "Gen. of India, D. N. Mukherjie and R. N. Sahthey, for tllle Appellants."}}, {"text": "R. N. Sahthey", "label": "LAWYER", "start_char": 2772, "end_char": 2785, "source": "ner", "metadata": {"in_sentence": "Gen. of India, D. N. Mukherjie and R. N. Sahthey, for tllle Appellants."}}, {"text": "N. A. Palkhiala", "label": "LAWYER", "start_char": 2811, "end_char": 2826, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiala, Ravinder Narain, I. B. Dadachanji, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 2828, "end_char": 2843, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiala, Ravinder Narain, I. B. Dadachanji, 0."}}, {"text": "I. B. Dadachanji", "label": "LAWYER", "start_char": 2845, "end_char": 2861, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiala, Ravinder Narain, I. B. Dadachanji, 0."}}, {"text": ". C. Mathur", "label": "LAWYER", "start_char": 2864, "end_char": 2875, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiala, Ravinder Narain, I. B. Dadachanji, 0."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 2879, "end_char": 2889, "source": "ner", "metadata": {"in_sentence": "K. J. John and K. R. lhaveri, for the Respondent. ·"}}, {"text": "K. R. lhaveri", "label": "LAWYER", "start_char": 2894, "end_char": 2907, "source": "ner", "metadata": {"in_sentence": "K. J. John and K. R. lhaveri, for the Respondent. ·"}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 2978, "end_char": 2985, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered .by-\n\nGoswAMI, J. This appeal is by special leave from the judgment of the 1Jelhi High Court m a writ app11cauon there under amc!e 226 of the (.;"}}, {"text": "1Jelhi High Court", "label": "COURT", "start_char": 3047, "end_char": 3064, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered .by-\n\nGoswAMI, J. This appeal is by special leave from the judgment of the 1Jelhi High Court m a writ app11cauon there under amc!e 226 of the (.;"}}, {"text": "Tim article is subjected to Central Excise Duty under the Central Excises and Salt Act, 1944", "label": "STATUTE", "start_char": 3464, "end_char": 3556, "source": "regex", "metadata": {}}, {"text": "April 24, 1962", "label": "DATE", "start_char": 3975, "end_char": 3989, "source": "ner", "metadata": {"in_sentence": "It may be stated that 'during the period from April 24, 1962 to February 28, 1964, the respondent described its product as skelp and it was subjected then to a lower rate of duty."}}, {"text": "February 28, 1964", "label": "DATE", "start_char": 3993, "end_char": 4010, "source": "ner", "metadata": {"in_sentence": "It may be stated that 'during the period from April 24, 1962 to February 28, 1964, the respondent described its product as skelp and it was subjected then to a lower rate of duty."}}, {"text": "February 19, 1964", "label": "DATE", "start_char": 4115, "end_char": 4132, "source": "ner", "metadata": {"in_sentence": "From February 19, 1964, the respondent chimed that the aforesaid product be classified as strip since there hat!"}}, {"text": "Assistant Collector, Central Excise, Jamshedpur", "label": "RESPONDENT", "start_char": 4266, "end_char": 4313, "source": "ner", "metadata": {"in_sentence": "The Assistant Collector, Central Excise, Jamshedpur, whb is the primary taxing authority, the Collector of Central Excise, Patna, in appeal, and the Central Government in revision rejected the contention of the respondent by successive orders, each authority upon its own test of the definition of the product as skelp."}}, {"text": "Central Government", "label": "ORG", "start_char": 4411, "end_char": 4429, "source": "ner", "metadata": {"in_sentence": "The Assistant Collector, Central Excise, Jamshedpur, whb is the primary taxing authority, the Collector of Central Excise, Patna, in appeal, and the Central Government in revision rejected the contention of the respondent by successive orders, each authority upon its own test of the definition of the product as skelp."}}, {"text": "Palkhivitla", "label": "OTHER_PERSON", "start_char": 5666, "end_char": 5677, "source": "ner", "metadata": {"in_sentence": "On the other hand with equal emohasis Mr. Palkhivitla for the respondent submitted that an assessment without the anolicatirm of an idf\\ntifiable test is nothine but perverse and arhitrarv."}}, {"text": "section 3", "label": "PROVISION", "start_char": 6250, "end_char": 6259, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 6405, "end_char": 6419, "source": "regex", "metadata": {"statute": null}}, {"text": "section 37", "label": "PROVISION", "start_char": 6657, "end_char": 6667, "source": "regex", "metadata": {"statute": null}}, {"text": "Jamshedpur", "label": "GPE", "start_char": 7266, "end_char": 7276, "source": "ner", "metadata": {"in_sentence": "The first order is that of the Assistant Collector of Central Excise, Jamshedpur, which was on June 17, 1964."}}, {"text": "June 17, 1964", "label": "DATE", "start_char": 7291, "end_char": 7304, "source": "ner", "metadata": {"in_sentence": "The first order is that of the Assistant Collector of Central Excise, Jamshedpur, which was on June 17, 1964."}}, {"text": "October 24/29, 1964", "label": "DATE", "start_char": 7755, "end_char": 7774, "source": "ner", "metadata": {"in_sentence": "The order of the Collector of Central Excise in appeal made on October 24/29, 1964, shows that the authority note(!"}}, {"text": "Jhen", "label": "OTHER_PERSON", "start_char": 8297, "end_char": 8301, "source": "ner", "metadata": {"in_sentence": "Jhen comes the order in revision of the Central Government of August 18, 1967 .. Inter alia it was held that \"the pr<*:luct does have bevel edges peculiar to skelp and not found in strips."}}, {"text": "August 18, 1967", "label": "DATE", "start_char": 8359, "end_char": 8374, "source": "ner", "metadata": {"in_sentence": "Jhen comes the order in revision of the Central Government of August 18, 1967 .. Inter alia it was held that \"the pr<*:luct does have bevel edges peculiar to skelp and not found in strips."}}, {"text": "ISI", "label": "ORG", "start_char": 9142, "end_char": 9145, "source": "ner", "metadata": {"in_sentence": "The ISI's definitions of strip and skelp as given in IS 19 5 6-1962 (amen, tled upto July 1968) are as follows:-\n\n8 Upto 1965 the ISI gave no description of 'Strip."}}, {"text": "Brandt D.J.C.-Manufacture of Iron & Steel", "label": "RESPONDENT", "start_char": 11139, "end_char": 11180, "source": "ner", "metadata": {"in_sentence": "Anne1ure 'J' submitted by the respondent along with its rejoinder affidavit in the High Court at page 101 of the record, gives various\n\ndefinitions of ship take'n from various dictionaries and treatises such A as Hornor J. G. Dictionary of Terms, page 323, year 1952; Brandt D.J.C.-Manufacture of Iron & Steel, pages 318 and 319, year 1953; Henderson J.C.-MetaUurgical DictiQnary, page 192, year 19'53; -Backert A.0.L. A.B.C. of Iron & Steel, page 1912, year 1925-5th edition; Chamber's Technical Dictionary, year 1967."}}, {"text": "Henderson", "label": "OTHER_PERSON", "start_char": 11212, "end_char": 11221, "source": "ner", "metadata": {"in_sentence": "Anne1ure 'J' submitted by the respondent along with its rejoinder affidavit in the High Court at page 101 of the record, gives various\n\ndefinitions of ship take'n from various dictionaries and treatises such A as Hornor J. G. Dictionary of Terms, page 323, year 1952; Brandt D.J.C.-Manufacture of Iron & Steel, pages 318 and 319, year 1953; Henderson J.C.-MetaUurgical DictiQnary, page 192, year 19'53; -Backert A.0.L. A.B.C. of Iron & Steel, page 1912, year 1925-5th edition; Chamber's Technical Dictionary, year 1967."}}, {"text": "Hindustan Steel Company, Rourkela", "label": "ORG", "start_char": 15196, "end_char": 15229, "source": "ner", "metadata": {"in_sentence": "Whether this has happeneti in this case, as complained bv the respondent citing the instance of the Hindustan Steel Company, Rourkela, it is not necessary for us to pursue in this appeal."}}, {"text": "Union of India", "label": "ORG", "start_char": 15645, "end_char": 15659, "source": "ner", "metadata": {"in_sentence": "But this does not bear scrutiny as on the counter-affidavit of the Union of India in the High Court at page 57 of this record it shows that \"as regards tested Hot rolled strips, the edges are never looked into, they can be bevelled, square or have Mill edge\" (emphasis added)."}}, {"text": "Gartga Setty", "label": "OTHER_PERSON", "start_char": 16138, "end_char": 16150, "source": "ner", "metadata": {"in_sentence": "In Gartga Setty's case (supra) the controversy arose with regard to whether \"feed oats\" fell within item 42 (fodder) or within item 32 (grain) of particular circular."}}, {"text": "Ganf!a Setty", "label": "OTHER_PERSON", "start_char": 16659, "end_char": 16671, "source": "ner", "metadata": {"in_sentence": "Similarly following Ganf!a Setty's case (supra) in Jas; it Sini{s • case (suora) the conclusion and findin!!s of the Customs authorities were accented as reasonable."}}]}
{"document_id": "1975_3_425_438_EN", "year": 1975, "text": "GANGADHAR YESHWANT BHANDARE\n\nERASMO DE JESUS SEQUIRIA\n\nFebruary 4, 1975 [H. R. KHANNA;, P. N. EHAGWATI AND R. s. SARiCARIA, JJ.]\n\nGoa, Vaman and. Diu Citizenship Order, 1%2';..c/, )A..:.....Pi; sspol't Issued by a foreign coulltry. to be surrendered liefo, re acert11in.date.,-Gqvermnent specifically asked a citizen not to surrender foreign pas8port....;..Seryics of cltl:de1.1. used In .a top secret mission:--Wllether retmtton of .foreig11 passPort deprlvt4 lu'm of Indian Citizenship ·\n\nClause (2) of the Go~, Daman and.Diu.(Citizcnsliip) oder, 1962 tall~ tlmt every person who or either of whose paents WLtS borR befurc the 20th <I&)' of Db; ember, 1961 in the territories now cil'ml!l'i'Sed in the' union territoii qf Ooa, Daman and Diu shall be deemedto h, iive beeom\\ a. citlr.en of Iadf&:p1': that day. The proviso to that clause says .'thai,· 'any SQCh peii shall not lie. deemed to have become 11 citizen of India; as aforesaid if within one month from ihe date of publication of the order that person makes a .declaratioil'in writing that he chooses to retain the citiz.enship or nationality' '\\Vl'riCh h.e Ji$4 immediately before the 20th day of December, 1961. In Decenttier. 19\"62 clii!, tile\n\n(3A) was .inserted in Schedule 3 to the CitizeQship Rules which. states that .where. a person who has beome an Indian citizen by virtue of 'the 1!162 .. CitlZensbip Order holds a passport issued by the Government of any , other. Country~ fact that he has not surrende'fed the said passport on. or befotj:I January' 19; 1963. shaU be conclusive proof' of ms having volwitarily acquired the t:itizedship of• that countrv before that date. . ~\n\nIn . his . eloction petition the appellant alleged at the resj)Gndent .C:p(lse~. io maintain his Portuguese nationality, aild citizeashii; I by making a deClaration in writing on April 27, 1962. Thereal'fer, he proceeded. on foreign travel as analie.n on the basis of the. Portuguese passport issued to him by the fm:mer Portlie8c administra:tion. which vas renewed upto July 17, 1964 in ..London: It was further alleged that the respondent obtained his alien residential• nnit in India and that he deliberately failed to surrender his Portuguese passport fore January 19,1963 as required by cl. 3A 'of the Amending Rules; 1962 .. It 'was also alleged that the communic<ttion of the. Goa administration that' the respondent bad prima facie become a citizen of I9dia byvirtue of the Cltiienship Order was not correct and contrary to the doeumentary evideote:\n\nThe Judicial Commissioner held (i) that the respondent-was entru,.5tedwilh a secret mission on behalf of . the Government of India and it was ia th8* connection that he was made to sign the declaration dated April '9J.7; 1962 aftd' that the declaration Wl\\S not made voluntarily; (ii) that the renewal of tile Portuguese passport did not imply loss of Indian citiz.ensl; tip; ·(iii) tl\\at the ittenc tion of the Portuguese passport .after January 19, 1963 was -due' to l::ooipeUiiig. reasons and that the Government of India must be deemed to have .glvon lts decision that llie respondent was a11. Indian .citizen. . ·\n\nDismissing ttl\" .appeal to this Court.\n\nHELD : (I) According to the Special Adviser to the Military Governor •lfho later became Special Adviser to the Lt. Governor, the declaration of the respondent da!.ed April. 27, 1962 that he cho, se to retain the Po_ituj\\uese. citizenship and nati.onality as signd by him <?.nly by way 'Of. formahty 1n view of the fact that the SpeC1al Adviser had decided tO uso the respondent in a tep secret matter relating to the security of India ... The -respondent was involved with a J>o11ug11ese lady and that fact provided a cover fOr carrying out the' assignment.\n\nThe respondent retained his Portuguese passport and obtained residential permits to stay in Goa as a foreigner. till January, .1964\n\n:at the instance of the Spe:ial Adviser so that he could carry out the assignment\n\nentrusted to him. He had gone abroad in 1963 in connection With the assignment on a Portugu.ese pai; sport under the instructions of the Special Adviser.\n\nThe respondent renewed the Portuguese passport in London under instructions of the Special Adviser.\n\nOn respondent's return he was asked by the Special Adviser to retain his passport till such time as it was decided to use him again or asked him to relinquisl! it. The Special Adviser was competent to ask the re;!pondent to retain his Portugues'e passport and to proceed on top secret a.ss.1gnment.\n\n[43 IE-H]\n\n( 2) The words \"as agreed\" appearing on the letter dated April 27, 1962 addressed by the respondent to the Spedal Adviser go to show that it was in pursuance of some arrnngement between the Special Adviser and the respondent that the latter was retaining his Portuguese passport and visiting Portugal. The note made by the Special Adviser expressly refers to the fact that the respondent after returning from his foreign trip was to take over an Indian passport and renounce Portuguese nationality.\n\nNo express reference to the secret mission. in 4hc very nature of things, could be expected either in the letter or in the note. lt was obviously essential for the success of the secret mision that things should not be divulged by making them explicit. [433G-H]\n\n(3) No question of sharing of the expenses of the respondent would arise if the respondent was not 1md<rtaking a trip for reasons conne:ted with tile affairs of the State.\n\n[ 434A]\n\n( 4) The evidence on re:ord proves that the respondent was entrusted with a secret mission on behalf of the Government of India and it was in that connection that he was made to sign the declaration dated April 27, 1962.\n\nTh~ D intention. of the respondent at the time he signed the declaration was not to become a Portuguese national but to acquire Indian nationality. [4340]\n\n(5) The declaration dated April 27, 1%2 and the retention of the pa;.spo:t by the respondent after January, 1963 could not have the effect of depriving the respondent of the benefit of. Indian citizenship.\n\nBut for the declaration dated April 27. 1962 the respondent according to cl. (2) of the Citizenship Order would be deemed to have become a citizen of India on December 20. 1961.\n\nThe declaration was signed by him because of the secret mission which had E been entrusted to him in connection with the affairs of the State. It cannot. therefore, be said that the ,:hoice to retain Portuguese nationality as expressed in his declaration date.ct April 27, 1962 and January 19, 1963 represented his real choice exercised by him voluntarily.\n\n[4350; 434H; 435A-B]\n\n(6) The Judicial Commissioner was right in considering the declaration dated April 27, 1962 and the letter dated July 27. 1970 from the Ministry r, f Home Affairs tha.t he had become prima fade a citizen of India as a certificate issued by the O:ntral Government under S; 13 of the Citizenship Act. It is also pl.ain\n\nII' that the Central Government reaffirmed its decision that the respondent had pri'ma facie become a citiz<m of India in spite of the fact that the O:ntral Government was informed about the making of declaratiqn dated April 27, 1962.\n\nLt•tters dated July 26, 1970 and July 27, 1970 though they did not profess to be certificates issued under s. 13 and though the latter of these two letters recites that there was no necessity of a certificate, clearly incorporate the vi.w nf the Government of India that the respondent wa~ an Indian citizen.\n\n[437G;\n\nC; 438C] G\n\nC1v1L APPELLATE JURISDICTION : Civil Appeal No. 991 of 1973.\n\nFrom the judgment and order dated the 16th March, 1973 of the Co'urt of Judicial Commr.,, Goa Daman & Diu in Election PetitiO'a No. 1 of 1971.\n\nV. R .. Bhandare, V. N. Ganpu]e and Urmila Sirur, for the appe- II Hant.\n\nA. K. Sen and S. R. Agrawala, for the respondent.\n\nA The Judgment of the Court was delivered by\n\nKHANNA, J.-The short question which arises for determinati.on in this appeal against the judgment of the Judicial Commissioner Goa, Daman & Diu dismissing petition filed by Gangadhar Yeshwant Bhantlare appe.llant to question the election of Erasmo De Jesus Sequiria respondent to the Lok Sabha is whether the said respondent B at the relevant time was a citizen of India.\n\nThe respondent was declared elected to the Lok Sabha from the Moraugao parliamentary constituency in the elections held in March\n\n1971. The appelJant who had been validly nominated as a candidate at the election fur the above constituency withdrew his candidature and did not contest the said election. After the result of the election had been declared, the appellant filed election petition to have the election of the respondent de<:Iared void on the. ground that on the date ofl the election the respondent was not qualified to be chosen to fill a parliamentary seat under the Constitution of India and the Re presentation of the People Act, 1951 as the respondent on that date was not a citizen of India and not an elector as contemplated by the Representation of the People Act, 1951. According to the appellant, prior to December 20, 1961 when the Union Territory of Goa, Daman & Diu was liberated from the Portuguese domination and becarr.e a part of the Indian Union the said territory was a Portu, guese possession and the respondent was Portuguese citizen. Pollowing the liberation and merger of that territory with the Union of India, the Government of India in exercise of the powers conferred by section 7 (Y{ the Citizenship Act, 1955 issued on March 28, 1962 Goa, Daman and Din E (Citizenship) Order, 1962 (hereinafter referred to as Citizenship order) conferring the citizenship of India on persons born in the above mentioned territory before December 20, 1961 on the trms and conditions set out in the order. The relevant part of clause 2 of\n\nthat. order was as under :\n\n\"Every person who or either of whose parents or any of whose grand parents was born before the twentieth day of December 1961 in the Territories now comprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day.\n\nProvided that any such J?Crson .shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in, the Official gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other . authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had . immediately before the twentieth day of December 1961 \"' ' ,\n\n.it is. stated ta.t the _respondent. chose to mai!ltai~ his _Portuguese nat10nahty and c1hzensh1p by makmg a declaration m wnting dated April 27, 1962 as required by the above clause. The respondent thereafter proceeded on foreign travel as an alien on the basis of a Portuguese passport issued to him on or about June 25, 1958 by the\n\n428 SUb\\..lME COURT REPORTS [197 5] :l s.c.11. •.\n\nformer Portuguese Administration. As the said passport was due to expire on June 21, 1962 the respondent on arrival in London in June 1962 applied to the Portuguese Consul in London for a new Portuguese\n\npasport, which was granted to him on June 18, 1962. The new passport Wall valid up to June 17, 1964. The respondent returned to India in October 1962 and as an alien applied for and obtained residential permit in India. The permit was renewed from time to time.\n\nOn December 20, 1962 the Central Government published the Citizenship (Amendment) Rules, 1962 and insered in Schedule III to the Citizenship Rules, 1956. clause 3A which reads as under:\n\n.\"3-A. Where a person, who has become an.Indian citi zen by virtue ()f the Goa, Daman and Diu (Citizenship) Order, 1962 or the Dadra and Nil.gar Haveli (Citizenship) Order, 1962,. issued under section 7 o.f the Citizenship A.ct,\n\n1955 (57 of 19:55), h'Dlds a passport issued by the Government QI' any other country, the fact that he has not .surrendered the said passport on or before the 19th January,\n\n1963 shall be conclusive proof of his having voluntarily acquired the citizenship of that .country before that date.\"\n\nIt is stated by the appellant that the respondent deliberately failed to surrender his Portuguese passport before January 19, 1963 as required undel' the above clause. In January 1964 the respondent' returned his Portugueis-e passport. to the Special Officer, Ministry of External Affairs and claimed Indian citizenship. No reference~ was made in Lhat communication by the respondent to the fact that he had made a declaration retaining his Portuguese citizenship. On D~ cember 15, 1964 a letter was se.nt on behalf of the Administration_ of Goa, Daman and Diu to the respondent stating that prima facie he had become a citizen of India by virtue of the Citizenship Order. In July 1970 the respondent addressed a communication to the Central Government for a certificate under .section 13 of the Citizenship Act.\n\nIn response to that the respondent was informed by letter dated July 27, 1970. that the said certifica.te was not necessary for hm as the Goa Administration had already conveyed to him that he was prima facie an Indian citizen. The appellant asserts that the information conveyed to the respondent by the Goa Administration in letter dated December 15, 1964 was not correct and contrary to documentary evidence. An objection was raised at the time of scrutiny by the appellant that the respondecnt was not a citizen of India but that objection was overruled by the Returning Officer. The appellant accordingly prayed that the election of the respondent to the l:ok Sabha be declared to be void.\n\nThe respondent in his written statement stated that the declaratlon filed by him on April 27, 1962 was not a valid declaration iitiasmuch as he did not choose to retain his Portuguese nationality and citizenship. Thi:I said decll\\I'ation was. stated to ave been made by the respondent at the request of. the then Special Adviser Goa for reasons. which had no connection with any int<mtioo on . his part. to retain the Portugues nationality and citizenship or to lose Indian\n\ncitizenship. The respondent admits that he left India in May 1962 and got his passport renewed from the Portuguese Omsulate in London. The respondent was, however, advised by his friends not to go to Portugal and consequently he did not go there. The respondent. it is further stated, was told by the Special Adviser to C'.lntinue to retain the Portuguese passpon so that he might be in a position to make a later trip to Pt>rtugal. According further to the respondent, . he applied for a residential pennit and kept renewing it from time to time as a matter of formality and with the full knowledge of the Special\n\nAdviser that the respondent did not intend to jeopardise his Indian citizenship. When clause 3A in Schedule lU to the Citii.enship Rules was added, the respondent addressed a letter to the Special Offiecr.\n\nMinistry. of External Affairs: to the efJ!cct that hl:l was retaining for the time being the Portuguese passport and that his object wa.q to obtain Indian passport in due course. The respondent thereafter surrendered his Portuguese passport on January 15,\n\n1964. The rcHpondcnt, it is further stated, obtained a passport as a citizen of Tndh1 from the Government of India through the Chief Se<:retary, Goa.\n\nDaman and Diu in 1965. Another passport was obtained by the respondent in that capacity in 1970. According to the respondent, letter from Goa Administration dated December 15, 1964 and letter dated July 27, 1970 from the Govert'lment of India are conclusive on the point that he was a citizen of India. Objection was also raised by the respondent that clause 3A of Schedule III to the Citizenship Rules and the first proviso to clause 2 of Citizenship Order were ultra .. vircs the Citii.enship Act. According to the respondent, he was a citizen of India at the relevant time and his election was not liable to he declared void on the ground set up by the appellant.\n\nIt ma; y be stated that the appellant impleaded he side;; the respondent, tho Returning Officer and the Union of India as respondents 2 and 3 respectively in the election petition. Respondent No. 2 was deleted from the list of respondents on July 31, 1971 on an application filed by the appellant. So far as the Union of India respondent No. 3 is concerned, ili6 said respondent was deleted from the list of respondents on the application of the appellant on February 3, '1972 after some preliminary issues had been decided on October .15, 1971.\n\nBefore that a written statement was filed on behalf of the Union of India.\n\nAceording to the Union of India, the respondent signed decltu-ation dated April 27, 1962 not voluntarily but on the advice and at the instance of the Speciai Adviser GQa.\n\nAs regards the residential permits which were granted to the respondent, the Union of India states that those permits were issued with a view to avoiding. any complication as the respondent held a , Portuguese passport for reasons connected with the affairs of the State. The Union of India has denied that the re5pondent acquired the Portuguese ciprenship or that he c6a5Cd fo be an Indian citiz.en. According further to the Union of India, the respondent is an Indian cit.ii.en. Indian passports arc stated to ha.ve bceb issued in favour .of the respondent because of his being an ladian citizen. f .1-4!3SCl'75\n\n430 SUPREME COURT REPOiTS [1975] 3 s.c.R.\n\ner: .\n\nFollowing issues were framed by the learned Judicial Commission-\n\nI. \"Ha.s this Court jurisdiction to entertain the election petition?\n\n2. Is the petitioner a citizen oil India?\n\n3. Did the petitioner comply with the prov1s1ons of sfr.:--\n\ntion 8 I ( 3) of the Representation of the People Act, 1951 and if not, is the petition fit to be dismissed under se:ction 86(1) of that Act?\n\n4. Whether the first proviso to para 2 of the Goa, Daun:i.n\n\nand Diu (Citizenship) Order, 1962 is ultra vires and in excess of the powers conferred by section 7 of the Citizenship Act, l 955?\n\n5. Was the first respJndent disqualified to be chosen as a member of the Lok Sabha in March l 971 for the reasons stated by the petitioner in the election ptition ?\n\n6. To what relief ?''\n\nIssues l, 2 and 4 which were treated as preliminary issues were decide:d in favour of the appellant and against the respondent as per order dated October 5, 1971. Issue No. 3 was also dec:idecl in favour of the appellant. On issue No. S the learned Judicial Commisskmer held that the respondent was entrusted with a secret mission on behalf of the Government of India and it was in that connection that he was made to sign declaration dated April 27, 1962. The said declaration was not made voluntarily. The renewal of Portugue:se passport by the respondent, it was held, did not imply the loss of. Indian citiz.enship. The rct1ntiJn of the Portuguese passport by the respondent after January 19, 1963 was found to be due to compcITinl:J\n\nreasons. In the opinion of the Judicial Ccmmissioner, the Govc:rnmcnt of India must b1~ deemed to have ven its decision that respondent was an Indian c.itizen. The respondent was accordingly held not disqualified to be chosen as a member of the Lok Sabha. fn th1~ result the. election petition was dismissed.\n\nIn appca.I before us Mr. Bhandarc on behalf of the appellant has challenged the finding the Judicial Commissioner that the respondent did not sign. declaration dated April 27, 1962 voluntarilv\n\nand that it was in connection with a secret mission entrusted to him on behalf of the Government of India that he was made to sign tha.t declaration. It is urged that the respondent was not an Indian citizen\n\nat the relevant time ad as such wa!> 00t qualified to be chosen to fill a seat irt the Parliament. We have civen our careful consideration to the s1,1brnission of Mr. Bhandare arid though we agree with him that as provided in article 84 of the Constitution, a person shall not be qualified: to be 1chnl JJ fill a seat in Parliament unless he is a oitizen of hdia, we find it difficult to accept his other conteniions\n\nEx. P3 is declaration dated April 27, 1962 which, according to the appellant, was made by the respondent voluntarily. The declaration read as under :\n\nThe Sr. Superintendent of Police, Goa Panjim\n\nSir,\n\nPanjim dated 27th April 1962\n\nl ERASMO JESUS DE SEQUEIRA aged 23 years resi dent at CAMPAL, PANJIM declare that 1 have carefully read the order passed. by the Military Governor on the 5th\n\no~ April, 1962 regarding the declaration of Nationality. l have also carefully perused the Notification of the Govt. of fndia dated 28th March, 1962 which is an order called 'Goa, Diu and Daman Citizenship Order 1962'. I accordingly declare that I choose to retain the\n\nPORTU- GUESE citizenship Nationality which I was holding imme diately before the 20th of December, 1961. I, therefore, herein sign my declaration, declaring my PORTUGUESE citizenship . . . . . ... Nationality.\n\nSd/Erasmo Jesus De Sequeira Signature\n\nThe learned Judicial Commissioner has found that the above declaration was made by the respondent not voluntarily and that he was made to sign it in connection with a secret mission entrusted to him on behalf of the Government of India. The finding of the Judicial Commissioner in this respect is supported by the evidence of Mr. G.\n\nK. Handoo who was appoin.ted in Deceinber 1961 as a Special Adviser to the Military Governor of Goa and who was thereafter appointr<l in March 1962 Special Adviser to the. Lt. Governor. Before that Handoo was Additional Inspector General of Police, Maharashtra and Commandant of the Border Security Force of Goa, Daman and Diu. He had also been dealing with foreign intelligence and security\n\nof Goa in the Ministry of External Affairs. According to Handoo, declaration Ex. P3 was signed by the respondent only by way of formality in view of the fact that Handoo had decided to use the respondent in a top-secret matter relating to the security of the Govern ment 0£ India. The respondent, it is stated, was involved with a Portugue~ lady and that fact provided a cover for carrying out the assignment. Handoo has further stated that the respondent retained his Portuguese passport and obtained residential permits to stay in Goa as a foreigner till January 1964 at the instance of Handoo so that the respondent could carry out the assignment entrusted to him. It is also\n\nsta~ by Handoo that the respondent went abroad in l 962 in connection with the assignment on a Portuguese passport under the instructions of Handoo. The expenses for the above foreign trip of the respondent were shared by the Government ofl India and the respondent. It is further in the evidence of Handoo that the respondent renewed hct.!!ortuguese passport in London under the instructions of\n\nthe witness. On his return the respondent contacted Handoo. Handoo then told the respondent to retain his passport till such time as Handoo decided to use him again or asked him to relinquish' it. Handoo adds that he was competent to ask the respondent to retain his Portuguese passport and to proceed on. top-secret assignment.\n\nIt is also in the evidence of Han.doo that the respondent addressed letter\n\nEx. P4 to Handoo o.n April 27, 1962. The letter roads as under:\n\nCONFIDENTIAL Mr. G. K. HANDOO\n\nSPECIAL ADVISER\n\nGOA\n\nDEAR MR. HANDOO:\n\nCAMPAL\n\n. PANJIM 27th APRIL, 1962\n\nConfirming my call on. you thi~ morning, I, as agreed, write to advise you that [ wish to retain my Portuguese passport No. 703/58 issued at Goa for the present, to enable me to visit Portugal and sec a very personal friend on ll\n\nhighly personal reason.\n\nI request that pennissiou be granted fur me to leave: India on this passport, and would appreciate a re-entry permit valid for :; ix months being granted at the same time.\n\nI am, as advised by you, registering my passport at the police, and I shall be seeing you to hand over this letter, immediately after.\n\nWith compliments.\n\nYours sincerely,\n\nSd/~ Erasmo Jesus de Sequeira\"\n\nOn the above letter Handoo recorded a note meant for Joshi who was indharge of Pas&-po.rt Section at Panjim.\n\nThe note reads as under:\n\n\"Please s'ec. I had spoken to you about this.\n\nThe applicant h!IS to go back; to Portugal wi1h reference to hil; entanglement with a white Portugtiese lady and has to fina!ly settle thi~ domestic issue and return. He will then take over an Indian passport which can be isued as he will renounce Portu~:se nationality. Plea.so issuei him a , e-entry permit as desired at 'A' above.\"\n\nThe sttement of the resp.mdent when he came into the witnessbox iii .sitiillar to dtat of Halldoo. The learned Ju<licial Commissioner has accepted the evidence adduced on bebalf ot.,!~ respon\n\n[).\n\ndent in this. respect, and we see no particular reason to disbelieve the same.\n\nHandoo was a senior officet who dealt with foreign intelligence and security of Goa.\n\nAt the relevant time he was Special Adviser to the Lt. Governor. So far as the present proceedings of the election petition are concerned, he is wholly disinterested and there appears to be no cogent ground whatsoever as to why he should give faJ5e evidence in favour of the respondent. . As regards the respondent, we. find that he was subjected to lengthy and searching ctossexamination lasting for 11 days.\n\nThe learned Judicial commis sioner , has commeuded the demeanour , of the responde.nl in the witness-box and has observel:l that'. the respondent's clear, unhesitatin~ and finn answers impressed him for the tiuthfuhis. According to the. Judicial Commissioner, the evidcntiary value of the respondent's\n\nsl:ltemen~. instead of being weakelij)d, was fortified as a result of cress-examination.\n\nThis Court in an e!ection appeal normally does not interfere with the aru>raisement of. t}\\e. evidence of the witnsses by the High Court unless stich appraisement is afflicted with some glaring infirmity. After havin~ been taken through the: evidenee of Handoo and the r-espondent, we find -no reason whatsoever . to take a .view different from that takCn'by 1he Judicial Commissioner regard ing the trustworthiness of the two witnesses.\n\nMr. Bhandare has drawn our attention to the suggestion which was put in cross-examination to the respondent that he was being helped. by •the ruling party at the Centre in the matter of his citizenship and the present election petition because of the support lent by him to the ruling party since 1969.\n\nThe respondent repudiated this suggestion and we find that apart from this bare suggestion in cro!\\8cxamination there is no other material on the record to show that the suggestion was well-founded. We further find that . Handoo retired from Government service and did not hold any official position after November 1962. His evidence in the present proceedings was recorded on a)rnmission in Au!!llst 1972. Hilndoo being no longer in Government service at the time of the reOOrding of his evidence, it is t -clear as to how he could be influenced bv the pahv ih power \"t the Centre to give evidence in favour of the respondent.\n\nThe evidence of the respondent and Handdo is also bOrne out by the letter which was addressed by the resTIOndent tf) Handoo on April 27, 1962 and the note made on that letter by Handoo. The word~ \"as amed\" .in the above letter (!'o to show that it Wlls in pursuance of some arrangement between Handoo and the respondent that the latter was retaining his Portuguese passport and Visiting Portucr.Ll.\n\nThe note which was made by Handlx> expresslv refers to the tac\n\nthat the. respondent after retuminl! from bis foreign trio was to take over an Indian passport aml renoun~ Portuguese nationality- No express referen.i:e to lhe secret mission in the very nature of thin~ could be expected either in the letter or in the note It was .pbviously essential. for the sm; cess of the secret mission, Jhat things should not' be divulged bv making them explicit.\n\nThe evidence of. the respondent and Handoo also shows. that the expense& for the foreign trip of the respondent were. borne partlyby\n\nthe Government and partly by the respondent.\n\nNo question of sharing of those expenses by the Governrn.ent would arise if the respondent was not undertakin_g that trip for reasons connected w:ith the a!Pilirs of the State as alleged by the respondent.\n\nWhile dealing \\X/ith the question as to what value should be attached to the evidence adduced by the respondent, we must also bear in mind the written statement which bas been) filed on behalf of the Union of India.\n\nAccording to the stand taken by the Union ofl India, declaration dated April 27, 1962 was nut signed by the respondent voluntarillf but on the advice and at the instance of the Special Adviser Goa.\n\nThe Union of India has tµrther stated that the residential perm, its were granted to the respondent with a. view to prevent any complication as the respondent l)eld a Portuguese passport for reasons connected with the affairs of the State.\n\nLooking to all the facts, we. agree with the learned Judicial Commissioner that the evidence on re6o.rd proves that the respondent was entrusted with a secret mission dn, behalf of,' the Government qf India 1md it was ln that connection; that he was made to sign dealaration dated April 27, 1962.\n\nWe lso agree that the intention of: the respondent at .. the titne. he sign~ the declaration was not to beccme a Portuguese\n\n11;1tional but to acquire Indian nationality and citizenship.\n\nThe evidence of Handoo and the respondent also establishes that it was at the instance of Handoo in connection with the secret mission entrusted to him that respondent travelled on a Portugu\\se passport\n\ni!IJ 1962 and obtained on the expiry of his passport a fresh passport from Portuguese Consulate in London in June 1962. The evidence further establishes ihat it was for the same reason that the respondent did Mt surrender his Portuguese passport on or before January 19, 1963 in accordance with clause 3A inserted in Schedule III to the Citizenship Rules, 1956. The same was the reason, according to that evidence, for .the stay 0£ the respondent in Goa as a foreigner on residential !Jermits till January 1964.\n\nIt has next been argued by ~Ir. Bhandare that whatever might be the reason which mighlt have weighed with the respondent in malting declaration P3 dated April 27, 1962 regarding his Portuguese nationality and the retention of the Portuguese passport till after January 19,\n\nI. 963 the law must tak1e its course and the court should give effect to the proviso to clause 2 of the Citizenship Order and clause 3A of Schedule III to the Citirenship Rules, 1956. In accordance with the above provisions, the respondent, it is urged, should be held to be a Portuguese citizen and not an Indian citizen.\n\nWe are unable to aCOC'!l:le to the above submission. The respondent was ad111tttedly born before the 20th day of December 1961 in the Union Territory of Goa, Daman and Diu. As such, but for declaration P3 signed by him, he would according to clause 2 of the CitiZlmship Older be deemed to have become a citizen of India on the 20th day of December 1961. Question then :!rises as to what is the effect of declaration P:I made by the respondent on April 27, 1962 and the retention of the .fl0rtugu4~ passport by him after January 19, 1963.\n\nG. Y. BHANDARE v. ERASMO DE JE~US (Khanna, I.> 435\n\nW,~ have found above that even though the respondent wanted to becdme an Indian citizen, he signed declaration P3 and retained the Portuguese pasport till January 1964 because of the secret mission which had been entrusted to him in connection with the affairs of th~-State.\n\nIt cannot, therefore, be said that the choice to retain Portuguv.-se nationality a~' expressed in declaration P3 as well as the choice to retain the Portuguese passport aJlter January 19, 1963 represented the real choice of he respondent exercised by him voluntarily and of his free volition. </>n the contrary it was because of the necessity and the compulsive ro'a, on of ensuring the success of the secret mission entrusted to him in connection with the affairs of the State that the respondent signed declaration P3 and retained the Portuguese passport till after January 19, 1963. The evidence on record establishes that declaration P3 was a sham declaration which did not embody the real intention or choice of the person signing it. It was not intended to be acted upon and was signed at the instance 0£ a senior officer acting on behalf of the Government of India because it was considered to be a necessary camouflage and cover to facilitate the carrying out of the secret mission entrusted to hirh in connection with the affairs oE the State.\n\nThe same was reason for the retention of the Portuguese passport by the respondent after January 1963. As such, declaration P3 and the retention of the passport by the respondent af, ter January 1963 cannot have the effect of depriving the respondent of the benefit of Indian citizenship. It would indeed look anomalous if a declaration signed in the above circumstances were to result in the evil consequence of tbe respondent being denied the right to become an Indian citizen. We may observe that once a declarati'on like P3 is signed by\n\na person and he retains a Portuguese passport after the due date the onus would be very heavy upon him to prove that the declaration' was not signed by im voluntarily and that the retention of the Portuguese passport by him was also not a voluntary act. Unless he discharges that onus by clear and cogent evidence, the law would takes its course and he would not be regarded an Indian citizen. Where, however, as in the pi:esent case the person concerned discharges th;; it onus and it is estabhshed by clear and cogent evidence that the real choice and intention of the person concerned was to become an Indian national and that--he __ sied the declaration and retained the passport because of the comoul~1on of a secret assignment entmsted to him in connection with the affairs of. the State, he cannot be deprived of his entitlement to Indian citizenship.\n\nWe may in the above context refer to the case of Mohd. Ayub Khan v. Commissioner of Police, Madras & Anr.(') This Court in -that case was dealing with pa, ragraph 3 of Schedule III to the Citizenship Rules, 1956 which raises a conclusive presumption that a citizen of India who has obtained a passport from a foreign country on any date, has before that date 'Voluntarily acquired citizenship of that other country. Referring to that paragraph this Court observed :\n\n\"By the application of the rule in Para.graph 3 the authori- __ :Y must ragard obtaining of a foreign passport on a parti-\n\n(l) (196S) 2 S.C.R. 884.\n\ncular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of fureign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he bad not voluntarily o!lr tained the passport, the citizen must be afforded an opportunity to prove that fact. c.ascs may be visualized in which on account of force a person may be compelled or on ai:- courit of fraud or inisreprcsentatfon he may be induced, without , any intention of renuciati\\O)Jl of liis Indian citizenship, to obtain a passpol/1 from a fureign oountry. It would be difficult tQ .say that s'tlch a passport is one which bas be(:n 'obtained' within the meaning of Paragraph 3 of Sch. IU\n\nand that a conclusive presumption must arise that he h<1s acquired. voluntarily citizenship of that country:\"\n\nThe learned Judkial C.Onunissioner has held that letter R3 dated July 27, 1970 taken along with other documents should be construed as a certificate issued by the Government under section 13 of the Citizenship Act. The above finding has hee1, t assailed by Mr. Bhandare.\n\nIn this connection we find that according to section 13 of the Citizensb, ip Act, the Central Government may, in S\\!Ch cases as it thinks fit, cerdfY that a persOIJ, h mpect t9 whose,..citizenship of India a oovbt exists, is a citizep of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a\n\ncilizen at am earlier date. The respondent, as mentioned earlier, surrendered his Portuguese passport on January 15, 1964. While surrendering bis passport, the respondent wrote letter dated January\n\nt5; 1964 to the Special Officer, Ministrv of External Affairs daiming Indian citizenship. The Ministry 9f Extelhal Affairs then referred the matter to the Senior Superintendent of Police Panjim. The statem!!nt of 1he respondent Wai then recorded by the police and the Senior Superintende11't of Police thereafter made a report.\n\nA ieport was then sent to the Mittistry of External Affairs by the Chief Secre-\n\n~. Government of Ooa, l)aman and Diu.\n\nA letter was therc- r sent on behalf of the Ministry of EJ1ternal Affairs on Th:cembe11 2, 1964 to the said Chief Secretary stating that in view oB . the inf<mnation suoJ>lied .bv the Chief Secretary, there was no objection to the respondent being treated as a citizen of India under the Citizenship Order. 011 December lS, 1964 a communication was sent fo the resoondent .as, the Under Secretary. Home Deoartment of the Go'rcrnment of Goa, Daman and Diu that prima facie die resnondent had become a citizen of India bv virtue of the Citizenshin Order. M:ore than f!Our and a half -years thereafter on Julv 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretarv Go'•emment of Goa, Daman and Diu that the respondent had mad~ decl!aration P3 dated April 27. 1962 choosing to retain Portmruese citi:r.enrJUp and that this fact had not been broul!:ht to the notice of the Government before lettir dated December 15, 1964 was issued to the\n\nrespondent that he had prima facie become a citizen of In<li.a. The Chief Secretary thereafter addresed a letter to the Ministry of Home Affairs and informed the Additional. Secretary in that Ministry about the making of the above declaration by the respondent. There was then further correspclJ.dence between the Government of India and the Government of Goa, Daman and Diu. On July 26, 1970 the Joint Secretary to the Government of India, Ministry of Home Affain addressed letter P52 to the respondent that the mattei regarding his clai...\"11 tQ. Indian citizenship had been reconsidered and it bad been decided that the matter should be treated as closeJC!. The Governn1ent of India thus reaffirmed its decision which bad been conveyed to the respondent in 1964 that the respondent bad become prima facie a citiun of India by virtue of the Citizcnship Order. It is also plain that the Central Government reaffirmed its decision that the respondent had prima facie become a citiun of India in spite of the fact that the Central Government was informed about the making of declaration P3 by the respondent on April 27, 1962. On July 27, 1970 the faint Secretary in the Ministry of Home Affairs addressed the following Jetter P3 to the respondent :\n\n\"i am directed to refer to your Jetter dated 27th July, 1970\n\nrequesting for grant of a certificate of citiunship under section 13 of the Citizenship Act, 1955, and to say that since the Goa Administration have in their letter No. HD-9-436/ 64 dated 15th December, 1964, already informed you that you have prirna facie become a citizen of India by virtue of. the Goa, Daman and Diu (Citizenship) Order, 1962, the necessity of a certificate under section 13 does not arise.\"\n\n1As already mentioned, the learned Judicial Commissioner ha3 held that the above letter taken along with the preceding correspondence should be construed as a certificate issued by the Central Government under section 13 of the Citizcnship Act. We find no cogent ground to take a different view. By the above letter the Government of India plainly reiterated and reaffirmed its view conveyed to the respondent on December 15, 1964 that he had prima facie become a citizen of India by virtue of the Citizenship Order. It was no, doubt mentioned in the letter that the necessity of a certificate unit' . '.; ectron\n\n13 docs not arise, but this was plainly in view of the assumption made by the Government of India as expressed in that letter that the respondent was already accepted to be a citiun of India. The learned Judicial Commissioner, in the circumstances, cannot be held to be in error in construing letter R3 and the preceding correspondence as\n\na certificate under section 13 of the Citiunship Act.\n\n' To put it differently, section 13 vests the Central Government with power to certify in case a doubt exists as to whether a particular person is a citizeR of India that he is such a citizen. In the case of the respondent a doubt was raised by the Government of Goa, Daman\n\nanc.I Diu on the point as to whether he was a citizen of India. The Govemment of, Goa, Daman and Diu in this context r.eferred to the fact that the respondent while prayin11: on January 15, 1964 for being declared Indian citizen had suppressed the fact about his having signed\n\ndeclaration P3 on April 27, 1962 choosing to retain Portuguese nationality. The Central Government even after being apprised of that fact refused to reconsider its decision of 1964 and observed that the matter should be treated as closed. When the respondent the:reafter asked for certificate under section 13 the Central Government said that no such certificate was necessary in view of the earlier official co1.J111unication which had been sent to him that he had prima facic become a citizen of India.\n\nThese facts, in our opinion, clearly establish that the Central Government after being put in possession of all relevant facts reiteratd its view that the respondent was an Indian citizen and shm1ld be ( \"nsidered as such. Letter dated July 26, 1970 and July 27, 1970, : k Jgh they d<J not profcs> to be certificates issued under section 13\n\na~· ... : though the later of these two letters recites that there was no necessary of a certifkate, clearly incorporate the view of the Government of India that the respondent was an Indian citizen. The letter~ thus serve the purpose of a ce1tificate and we agree with Mr. Sen, counsel for the respondent, that they operated as certificate and should be constrned as such.\n\nWe may observe that the Government of India issued a passport in favour of the respondent in 1965 and thereafter in 1970. The respondent before his election to the Lok Sabha ir! 1971 was al:'io 1t member of the Lok Sabha from 1967 till 1971. When elected as a member of the Lok Sabha in 1967 as also when he obtained the Indian passport in 1965 and 1970 the respondent had to sign the declaration that he was an Indian citizen. He has already renounced his Portuguese citizenship. To hold at this stage that the respondent is not an Indian citizen would have the effect of r1mdering him stateless.\n\nAs a result of the: above, we find that there is no merit in the appeal. ft accordingly fails and is dismissed with costs.\n\nAppeal dismissed.\n\nP.B.R.", "total_entities": 105, "entities": [{"text": "GANGADHAR YESHWANT BHANDARE", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "Gangadhar Yeshwant Bhantlare", "offset_not_found": false}}, {"text": "ERASMO DE JESUS SEQUIRIA", "label": "RESPONDENT", "start_char": 29, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "ERASMO DE JESUS SEQUIRIA", "offset_not_found": false}}, {"text": "February 4, 1975", "label": "DATE", "start_char": 55, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "GANGADHAR YESHWANT BHANDARE\n\nERASMO DE JESUS SEQUIRIA\n\nFebruary 4, 1975 [H. R. KHANNA;, P. N. EHAGWATI AND R. s. SARiCARIA, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 73, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "Schedule 3", "label": "PROVISION", "start_char": 1231, "end_char": 1241, "source": "regex", "metadata": {"statute": null}}, {"text": "July 17, 1964", "label": "DATE", "start_char": 2022, "end_char": 2035, "source": "ner", "metadata": {"in_sentence": "which vas renewed upto July 17, 1964 in ..London: It was further alleged that the respondent obtained his alien residential• nnit in India and that he deliberately failed to surrender his Portuguese passport fore January 19,1963 as required by cl."}}, {"text": "London", "label": "GPE", "start_char": 2041, "end_char": 2047, "source": "ner", "metadata": {"in_sentence": "which vas renewed upto July 17, 1964 in ..London: It was further alleged that the respondent obtained his alien residential• nnit in India and that he deliberately failed to surrender his Portuguese passport fore January 19,1963 as required by cl."}}, {"text": "India", "label": "GPE", "start_char": 2132, "end_char": 2137, "source": "ner", "metadata": {"in_sentence": "which vas renewed upto July 17, 1964 in ..London: It was further alleged that the respondent obtained his alien residential• nnit in India and that he deliberately failed to surrender his Portuguese passport fore January 19,1963 as required by cl."}}, {"text": "cl. 3A", "label": "PROVISION", "start_char": 2243, "end_char": 2249, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India", "label": "ORG", "start_char": 3015, "end_char": 3034, "source": "ner", "metadata": {"in_sentence": "reasons and that the Government of India must be deemed to have .glvon lts decision that llie respondent was a11."}}, {"text": "ss.1", "label": "PROVISION", "start_char": 4488, "end_char": 4492, "source": "regex", "metadata": {"statute": null}}, {"text": "Portugal", "label": "GPE", "start_char": 4804, "end_char": 4812, "source": "ner", "metadata": {"in_sentence": "[43 IE-H]\n\n( 2) The words \"as agreed\" appearing on the letter dated April 27, 1962 addressed by the respondent to the Spedal Adviser go to show that it was in pursuance of some arrnngement between the Special Adviser and the respondent that the latter was retaining his Portuguese passport and visiting Portugal."}}, {"text": "April 27. 1962", "label": "DATE", "start_char": 6072, "end_char": 6086, "source": "ner", "metadata": {"in_sentence": "But for the declaration dated April 27."}}, {"text": "December 20. 1961", "label": "DATE", "start_char": 6201, "end_char": 6218, "source": "ner", "metadata": {"in_sentence": "2) of the Citizenship Order would be deemed to have become a citizen of India on December 20."}}, {"text": "April 27, 1962", "label": "DATE", "start_char": 6678, "end_char": 6692, "source": "ner", "metadata": {"in_sentence": "[4350; 434H; 435A-B]\n\n(6) The Judicial Commissioner was right in considering the declaration dated April 27, 1962 and the letter dated July 27."}}, {"text": "July 27. 1970", "label": "DATE", "start_char": 6714, "end_char": 6727, "source": "ner", "metadata": {"in_sentence": "[4350; 434H; 435A-B]\n\n(6) The Judicial Commissioner was right in considering the declaration dated April 27, 1962 and the letter dated July 27."}}, {"text": "ntral Government", "label": "ORG", "start_char": 6847, "end_char": 6863, "source": "ner", "metadata": {"in_sentence": "1970 from the Ministry r, f Home Affairs tha.t he had become prima fade a citizen of India as a certificate issued by the O:ntral Government under S; 13 of the Citizenship Act."}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 6883, "end_char": 6898, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Government", "label": "ORG", "start_char": 6932, "end_char": 6950, "source": "ner", "metadata": {"in_sentence": "It is also pl.ain\n\nII' that the Central Government reaffirmed its decision that the respondent had pri'ma facie become a citiz<m of India in spite of the fact that the O:ntral Government was informed about the making of declaratiqn dated April 27, 1962."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 7262, "end_char": 7267, "source": "regex", "metadata": {"statute": null}}, {"text": "V. R .. Bhandare", "label": "JUDGE", "start_char": 7691, "end_char": 7707, "source": "ner", "metadata": {"in_sentence": "V. R .. Bhandare, V. N. Ganpu]e and Urmila Sirur, for the appe- II Hant."}}, {"text": "V. N. Ganpu]e", "label": "LAWYER", "start_char": 7709, "end_char": 7722, "source": "ner", "metadata": {"in_sentence": "V. R .. Bhandare, V. N. Ganpu]e and Urmila Sirur, for the appe- II Hant."}}, {"text": "Urmila Sirur", "label": "LAWYER", "start_char": 7727, "end_char": 7739, "source": "ner", "metadata": {"in_sentence": "V. R .. Bhandare, V. N. Ganpu]e and Urmila Sirur, for the appe- II Hant."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 7765, "end_char": 7774, "source": "ner", "metadata": {"in_sentence": "A. K. Sen and S. R. Agrawala, for the respondent."}}, {"text": "S. R. Agrawala", "label": "LAWYER", "start_char": 7779, "end_char": 7793, "source": "ner", "metadata": {"in_sentence": "A. K. Sen and S. R. Agrawala, for the respondent."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 7862, "end_char": 7868, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nKHANNA, J.-The short question which arises for determinati.on in this appeal against the judgment of the Judicial Commissioner Goa, Daman & Diu dismissing petition filed by Gangadhar Yeshwant Bhantlare appe.llant to question the election of Erasmo De Jesus Sequiria respondent to the Lok Sabha is whether the said respondent B at the relevant time was a citizen of India."}}, {"text": "Gangadhar Yeshwant Bhantlare", "label": "LAWYER", "start_char": 8035, "end_char": 8063, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nKHANNA, J.-The short question which arises for determinati.on in this appeal against the judgment of the Judicial Commissioner Goa, Daman & Diu dismissing petition filed by Gangadhar Yeshwant Bhantlare appe.llant to question the election of Erasmo De Jesus Sequiria respondent to the Lok Sabha is whether the said respondent B at the relevant time was a citizen of India.", "canonical_name": "Gangadhar Yeshwant Bhantlare"}}, {"text": "Erasmo De Jesus Sequiria", "label": "RESPONDENT", "start_char": 8103, "end_char": 8127, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nKHANNA, J.-The short question which arises for determinati.on in this appeal against the judgment of the Judicial Commissioner Goa, Daman & Diu dismissing petition filed by Gangadhar Yeshwant Bhantlare appe.llant to question the election of Erasmo De Jesus Sequiria respondent to the Lok Sabha is whether the said respondent B at the relevant time was a citizen of India.", "canonical_name": "ERASMO DE JESUS SEQUIRIA"}}, {"text": "Constitution of India and the Re presentation of the People Act, 1951", "label": "STATUTE", "start_char": 8816, "end_char": 8885, "source": "regex", "metadata": {}}, {"text": "India and not an elector as contemplated by the Representation of the People Act, 1951", "label": "STATUTE", "start_char": 8938, "end_char": 9024, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 20, 1961", "label": "DATE", "start_char": 9063, "end_char": 9080, "source": "ner", "metadata": {"in_sentence": "According to the appellant, prior to December 20, 1961 when the Union Territory of Goa, Daman & Diu was liberated from the Portuguese domination and becarr.e a part of the Indian Union the said territory was a Portu, guese possession and the respondent was Portuguese citizen."}}, {"text": "Goa", "label": "GPE", "start_char": 9109, "end_char": 9112, "source": "ner", "metadata": {"in_sentence": "According to the appellant, prior to December 20, 1961 when the Union Territory of Goa, Daman & Diu was liberated from the Portuguese domination and becarr.e a part of the Indian Union the said territory was a Portu, guese possession and the respondent was Portuguese citizen."}}, {"text": "Daman", "label": "GPE", "start_char": 9114, "end_char": 9119, "source": "ner", "metadata": {"in_sentence": "According to the appellant, prior to December 20, 1961 when the Union Territory of Goa, Daman & Diu was liberated from the Portuguese domination and becarr.e a part of the Indian Union the said territory was a Portu, guese possession and the respondent was Portuguese citizen."}}, {"text": "Diu", "label": "GPE", "start_char": 9122, "end_char": 9125, "source": "ner", "metadata": {"in_sentence": "According to the appellant, prior to December 20, 1961 when the Union Territory of Goa, Daman & Diu was liberated from the Portuguese domination and becarr.e a part of the Indian Union the said territory was a Portu, guese possession and the respondent was Portuguese citizen."}}, {"text": "Union of India", "label": "ORG", "start_char": 9366, "end_char": 9380, "source": "ner", "metadata": {"in_sentence": "Pollowing the liberation and merger of that territory with the Union of India, the Government of India in exercise of the powers conferred by section 7 (Y{ the Citizenship Act, 1955 issued on March 28, 1962 Goa, Daman and Din E (Citizenship) Order, 1962 (hereinafter referred to as Citizenship order) conferring the citizenship of India on persons born in the above mentioned territory before December 20, 1961 on the trms and conditions set out in the order."}}, {"text": "section 7", "label": "PROVISION", "start_char": 9445, "end_char": 9454, "source": "regex", "metadata": {"linked_statute_text": "India and not an elector as contemplated by the Representation of the People Act, 1951", "statute": "India and not an elector as contemplated by the Representation of the People Act, 1951"}}, {"text": "Citizenship Act, 1955", "label": "STATUTE", "start_char": 9463, "end_char": 9484, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Daman", "label": "OTHER_PERSON", "start_char": 9515, "end_char": 9520, "source": "ner", "metadata": {"in_sentence": "Pollowing the liberation and merger of that territory with the Union of India, the Government of India in exercise of the powers conferred by section 7 (Y{ the Citizenship Act, 1955 issued on March 28, 1962 Goa, Daman and Din E (Citizenship) Order, 1962 (hereinafter referred to as Citizenship order) conferring the citizenship of India on persons born in the above mentioned territory before December 20, 1961 on the trms and conditions set out in the order."}}, {"text": "clause 2", "label": "PROVISION", "start_char": 9784, "end_char": 9792, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act, 1955", "statute": "the Citizenship Act, 1955"}}, {"text": "Diu", "label": "OTHER_PERSON", "start_char": 10025, "end_char": 10028, "source": "ner", "metadata": {"in_sentence": "order was as under :\n\n\"Every person who or either of whose parents or any of whose grand parents was born before the twentieth day of December 1961 in the Territories now comprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day."}}, {"text": "June 18, 1962", "label": "DATE", "start_char": 11185, "end_char": 11198, "source": "ner", "metadata": {"in_sentence": "As the said passport was due to expire on June 21, 1962 the respondent on arrival in London in June 1962 applied to the Portuguese Consul in London for a new Portuguese\n\npasport, which was granted to him on June 18, 1962."}}, {"text": "June 17, 1964", "label": "DATE", "start_char": 11234, "end_char": 11247, "source": "ner", "metadata": {"in_sentence": "The new passport Wall valid up to June 17, 1964."}}, {"text": "December 20, 1962", "label": "DATE", "start_char": 11414, "end_char": 11431, "source": "ner", "metadata": {"in_sentence": "On December 20, 1962 the Central Government published the Citizenship (Amendment) Rules, 1962 and insered in Schedule III to the Citizenship Rules, 1956."}}, {"text": "Schedule III to the Citizenship Rules, 1956", "label": "STATUTE", "start_char": 11520, "end_char": 11563, "source": "regex", "metadata": {}}, {"text": "clause 3A", "label": "PROVISION", "start_char": 11565, "end_char": 11574, "source": "regex", "metadata": {"linked_statute_text": "Schedule III to the Citizenship Rules, 1956", "statute": "Schedule III to the Citizenship Rules, 1956"}}, {"text": "section 7", "label": "PROVISION", "start_char": 11791, "end_char": 11800, "source": "regex", "metadata": {"linked_statute_text": "Schedule III to the Citizenship Rules, 1956", "statute": "Schedule III to the Citizenship Rules, 1956"}}, {"text": "cember 15, 1964", "label": "DATE", "start_char": 12592, "end_char": 12607, "source": "ner", "metadata": {"in_sentence": "On D~ cember 15, 1964 a letter was se.nt on behalf of the Administration_ of Goa, Daman and Diu to the respondent stating that prima facie he had become a citizen of India by virtue of the Citizenship Order."}}, {"text": "section 13", "label": "PROVISION", "start_char": 12899, "end_char": 12909, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 12917, "end_char": 12932, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Goa Administration", "label": "ORG", "start_char": 13073, "end_char": 13091, "source": "ner", "metadata": {"in_sentence": "that the said certifica.te was not necessary for hm as the Goa Administration had already conveyed to him that he was prima facie an Indian citizen."}}, {"text": "December 15, 1964", "label": "DATE", "start_char": 13275, "end_char": 13292, "source": "ner", "metadata": {"in_sentence": "The appellant asserts that the information conveyed to the respondent by the Goa Administration in letter dated December 15, 1964 was not correct and contrary to documentary evidence."}}, {"text": "C'.lntinue", "label": "OTHER_PERSON", "start_char": 14426, "end_char": 14436, "source": "ner", "metadata": {"in_sentence": "it is further stated, was told by the Special Adviser to C'.lntinue to retain the Portuguese passpon so that he might be in a position to make a later trip to Pt>rtugal."}}, {"text": "rtugal", "label": "GPE", "start_char": 14531, "end_char": 14537, "source": "ner", "metadata": {"in_sentence": "it is further stated, was told by the Special Adviser to C'.lntinue to retain the Portuguese passpon so that he might be in a position to make a later trip to Pt>rtugal."}}, {"text": "clause 3A", "label": "PROVISION", "start_char": 14808, "end_char": 14817, "source": "regex", "metadata": {"statute": null}}, {"text": "July 27, 1970", "label": "DATE", "start_char": 15535, "end_char": 15548, "source": "ner", "metadata": {"in_sentence": "According to the respondent, letter from Goa Administration dated December 15, 1964 and letter dated July 27, 1970 from the Govert'lment of India are conclusive on the point that he was a citizen of India."}}, {"text": "clause 3A", "label": "PROVISION", "start_char": 15689, "end_char": 15698, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III to the Citizenship Rules", "label": "STATUTE", "start_char": 15702, "end_char": 15739, "source": "regex", "metadata": {}}, {"text": "clause 2", "label": "PROVISION", "start_char": 15765, "end_char": 15773, "source": "regex", "metadata": {"linked_statute_text": "Schedule III to the Citizenship Rules", "statute": "Schedule III to the Citizenship Rules"}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 16109, "end_char": 16123, "source": "ner", "metadata": {"in_sentence": "It ma; y be stated that the appellant impleaded he side;; the respondent, tho Returning Officer and the Union of India as respondents 2 and 3 respectively in the election petition."}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 17726, "end_char": 17764, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 7", "label": "PROVISION", "start_char": 17999, "end_char": 18008, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 18016, "end_char": 18031, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Govc:rnmcnt of India", "label": "JUDGE", "start_char": 19027, "end_char": 19047, "source": "ner", "metadata": {"in_sentence": "In the opinion of the Judicial Ccmmissioner, the Govc:rnmcnt of India must b1~ deemed to have ven its decision that respondent was an Indian c.itizen."}}, {"text": "Bhandarc", "label": "OTHER_PERSON", "start_char": 19304, "end_char": 19312, "source": "ner", "metadata": {"in_sentence": "I before us Mr. Bhandarc on behalf of the appellant has challenged the finding the Judicial Commissioner that the respondent did not sign.", "canonical_name": "Bhandare arid"}}, {"text": "Parliament", "label": "ORG", "start_char": 19769, "end_char": 19779, "source": "ner", "metadata": {"in_sentence": "> 00t qualified to be chosen to fill a seat irt the Parliament."}}, {"text": "s1", "label": "PROVISION", "start_char": 19828, "end_char": 19830, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhandare arid", "label": "OTHER_PERSON", "start_char": 19849, "end_char": 19862, "source": "ner", "metadata": {"in_sentence": "We have civen our careful consideration to the s1,1brnission of Mr. Bhandare arid though we agree with him that as provided in article 84 of the Constitution, a person shall not be qualified: to be 1chnl JJ fill a seat in Parliament unless he is a oitizen of hdia, we find it difficult to accept his other conteniions\n\nEx.", "canonical_name": "Bhandare arid"}}, {"text": "article 84", "label": "PROVISION", "start_char": 19908, "end_char": 19918, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India and the Re presentation of the People Act, 1951", "statute": "the Constitution of India and the Re presentation of the People Act, 1951"}}, {"text": "Sr. Superintendent of Police, Goa Panjim", "label": "RESPONDENT", "start_char": 20255, "end_char": 20295, "source": "ner", "metadata": {"in_sentence": "The declaration read as under :\n\nThe Sr."}}, {"text": "G.\n\nK. Handoo", "label": "LAWYER", "start_char": 21342, "end_char": 21355, "source": "ner", "metadata": {"in_sentence": "The finding of the Judicial Commissioner in this respect is supported by the evidence of Mr. G.\n\nK. Handoo who was appoin.ted in Deceinber 1961 as a Special Adviser to the Military Governor of Goa and who was thereafter appointr<l in March 1962 Special Adviser to the.", "canonical_name": "G.\n\nK. Handoo"}}, {"text": "Handoo", "label": "OTHER_PERSON", "start_char": 21544, "end_char": 21550, "source": "ner", "metadata": {"in_sentence": "Before that Handoo was Additional Inspector General of Police, Maharashtra and Commandant of the Border Security Force of Goa, Daman and Diu.", "canonical_name": "Handoo"}}, {"text": "Government ofl India", "label": "ORG", "start_char": 22645, "end_char": 22665, "source": "ner", "metadata": {"in_sentence": "The expenses for the above foreign trip of the respondent were shared by the Government ofl India and the respondent."}}, {"text": "G. K. HANDOO", "label": "LAWYER", "start_char": 23304, "end_char": 23316, "source": "ner", "metadata": {"in_sentence": "The letter roads as under:\n\nCONFIDENTIAL Mr. G. K. HANDOO\n\nSPECIAL ADVISER\n\nGOA\n\nDEAR MR.", "canonical_name": "G.\n\nK. Handoo"}}, {"text": "Erasmo Jesus de Sequeira", "label": "RESPONDENT", "start_char": 24000, "end_char": 24024, "source": "ner", "metadata": {"in_sentence": "Yours sincerely,\n\nSd/~ Erasmo Jesus de Sequeira\"\n\nOn the above letter Handoo recorded a note meant for Joshi who was indharge of Pas&-po.rt Section at Panjim.", "canonical_name": "ERASMO DE JESUS SEQUIRIA"}}, {"text": "Joshi", "label": "OTHER_PERSON", "start_char": 24080, "end_char": 24085, "source": "ner", "metadata": {"in_sentence": "Yours sincerely,\n\nSd/~ Erasmo Jesus de Sequeira\"\n\nOn the above letter Handoo recorded a note meant for Joshi who was indharge of Pas&-po.rt Section at Panjim."}}, {"text": "Bhandare", "label": "OTHER_PERSON", "start_char": 26157, "end_char": 26165, "source": "ner", "metadata": {"in_sentence": "Mr. Bhandare has drawn our attention to the suggestion which was put in cross-examination to the respondent that he was being helped.", "canonical_name": "Bhandare arid"}}, {"text": "Hilndoo", "label": "OTHER_PERSON", "start_char": 26864, "end_char": 26871, "source": "ner", "metadata": {"in_sentence": "Hilndoo being no longer in Government service at the time of the reOOrding of his evidence, it is t -clear as to how he could be influenced bv the pahv ih power \"t the Centre to give evidence in favour of the respondent."}}, {"text": "Handdo", "label": "OTHER_PERSON", "start_char": 27121, "end_char": 27127, "source": "ner", "metadata": {"in_sentence": "The evidence of the respondent and Handdo is also bOrne out by the letter which was addressed by the resTIOndent tf) Handoo on April 27, 1962 and the note made on that letter by Handoo.", "canonical_name": "Handoo"}}, {"text": "Handoo", "label": "WITNESS", "start_char": 27203, "end_char": 27209, "source": "ner", "metadata": {"in_sentence": "The evidence of the respondent and Handdo is also bOrne out by the letter which was addressed by the resTIOndent tf) Handoo on April 27, 1962 and the note made on that letter by Handoo."}}, {"text": "Union ofl India", "label": "ORG", "start_char": 28579, "end_char": 28594, "source": "ner", "metadata": {"in_sentence": "According to the stand taken by the Union ofl India, declaration dated April 27, 1962 was nut signed by the respondent voluntarillf but on the advice and at the instance of the Special Adviser Goa."}}, {"text": "clause 3A", "label": "PROVISION", "start_char": 29968, "end_char": 29977, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III to the Citizenship Rules, 1956", "label": "STATUTE", "start_char": 29990, "end_char": 30033, "source": "regex", "metadata": {}}, {"text": "January 19,\n\nI. 963", "label": "DATE", "start_char": 30447, "end_char": 30466, "source": "ner", "metadata": {"in_sentence": "Bhandare that whatever might be the reason which mighlt have weighed with the respondent in malting declaration P3 dated April 27, 1962 regarding his Portuguese nationality and the retention of the Portuguese passport till after January 19,\n\nI. 963 the law must tak1e its course and the court should give effect to the proviso to clause 2 of the Citizenship Order and clause 3A of Schedule III to the Citirenship Rules, 1956."}}, {"text": "clause 2", "label": "PROVISION", "start_char": 30548, "end_char": 30556, "source": "regex", "metadata": {"linked_statute_text": "Schedule III to the Citizenship Rules, 1956", "statute": "Schedule III to the Citizenship Rules, 1956"}}, {"text": "clause 3A", "label": "PROVISION", "start_char": 30586, "end_char": 30595, "source": "regex", "metadata": {"linked_statute_text": "Schedule III to the Citizenship Rules, 1956", "statute": "Schedule III to the Citizenship Rules, 1956"}}, {"text": "Schedule III to the Citirenship Rules, 1956", "label": "STATUTE", "start_char": 30599, "end_char": 30642, "source": "regex", "metadata": {}}, {"text": "clause 2", "label": "PROVISION", "start_char": 31026, "end_char": 31034, "source": "regex", "metadata": {"linked_statute_text": "Schedule III to the Citirenship Rules, 1956", "statute": "Schedule III to the Citirenship Rules, 1956"}}, {"text": "Schedule III to the Citizenship Rules, 1956", "label": "STATUTE", "start_char": 34275, "end_char": 34318, "source": "regex", "metadata": {}}, {"text": "section 13", "label": "PROVISION", "start_char": 35797, "end_char": 35807, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 35815, "end_char": 35830, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 13", "label": "PROVISION", "start_char": 35934, "end_char": 35944, "source": "regex", "metadata": {"statute": null}}, {"text": "January\n\nt5; 1964", "label": "DATE", "start_char": 36631, "end_char": 36648, "source": "ner", "metadata": {"in_sentence": "While surrendering bis passport, the respondent wrote letter dated January\n\nt5; 1964 to the Special Officer, Ministrv of External Affairs daiming Indian citizenship."}}, {"text": "Government of Goa", "label": "ORG", "start_char": 38394, "end_char": 38411, "source": "ner", "metadata": {"in_sentence": "There was then further correspclJ.dence between the Government of India and the Government of Goa, Daman and Diu."}}, {"text": "July 26, 1970", "label": "DATE", "start_char": 38431, "end_char": 38444, "source": "ner", "metadata": {"in_sentence": "On July 26, 1970 the Joint Secretary to the Government of India, Ministry of Home Affain addressed letter P52 to the respondent that the mattei regarding his clai...\"11 tQ. Indian citizenship had been reconsidered and it bad been decided that the matter should be treated as closeJC!."}}, {"text": "section 13", "label": "PROVISION", "start_char": 39422, "end_char": 39432, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act, 1955", "label": "STATUTE", "start_char": 39440, "end_char": 39461, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 13", "label": "PROVISION", "start_char": 39748, "end_char": 39758, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act, 1955", "statute": "the Citizenship Act, 1955"}}, {"text": "section 13", "label": "PROVISION", "start_char": 39987, "end_char": 39997, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act, 1955", "statute": "the Citizenship Act, 1955"}}, {"text": "section 13", "label": "PROVISION", "start_char": 40751, "end_char": 40761, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 40811, "end_char": 40821, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Goa, Daman", "label": "ORG", "start_char": 41035, "end_char": 41059, "source": "ner", "metadata": {"in_sentence": "In the case of the respondent a doubt was raised by the Government of Goa, Daman\n\nanc."}}, {"text": "January 15, 1964", "label": "DATE", "start_char": 41239, "end_char": 41255, "source": "ner", "metadata": {"in_sentence": "The Govemment of, Goa, Daman and Diu in this context r.eferred to the fact that the respondent while prayin11: on January 15, 1964 for being declared Indian citizen had suppressed the fact about his having signed\n\ndeclaration P3 on April 27, 1962 choosing to retain Portuguese nationality."}}, {"text": "section 13", "label": "PROVISION", "start_char": 41638, "end_char": 41648, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 42175, "end_char": 42185, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 42461, "end_char": 42464, "source": "ner", "metadata": {"in_sentence": "The letter~ thus serve the purpose of a ce1tificate and we agree with Mr. Sen, counsel for the respondent, that they operated as certificate and should be constrned as such."}}]}
{"document_id": "1975_3_439_443_EN", "year": 1975, "text": "-439\n\nBACHAN SINGH\n\nPRITHVI SINGH & ORS.\n\nFebruary 5, 1975 [A. ALAGffiISWAMI AND R. s. SARKARIA JJ.]\n\nRepresntatlon of tlie Pf!op/e 1ct !951-S.123(2) and (7)-Publicativn of po.iters with pictures of Prime Minister and Chiefs of Staff-Whether amounts ta undue influence.\n\nThe appellant in his petition challenging the electioa of the. responJcnt leged (1) <hat the respondent had ?een guilty of committing a corrupt prachce oder s.123\\7) of the Representat10n of the People Act, 1951 in that he had obtmned the ~1~1tance of a member of the. armed forces in his election and ( 2) that he had d1stnbuted posters with the pictures of th~ Prime Minister and other\n\nimportant ministers together with the three chiefs and four Generals of the Armed. Forces berii:g the capti_on 'Pillars of Victory' and thereby exercised undue influence within the meaning of s.123(2) of the Act. The High Court dismissed the petition.\n\nDismissing the appeal to this Court.\n\nHELD : ( 1) Since the deletion of the words 'or a polling agent or a counting agent' from Explanation (2) of s.123(7) by the Amending Act 47 of 19Ci6, a member of the armed forces, merely by acting as a polling agent, is not deemed to assist in the furtherance of the prospects of a candidate's election within the contemplation of s.123(7) of the Act.\n\nSecondly, the Lanc_e Naik had cate- · gorically asserted that he did the canvassing on his own and not in the company or the respondent. [ 441 G]\n\n. I\n\n(2) (a) The publication of the poster was an act of imP, ropriety but not one of corrupt practice falling within the mischief of s.123.\n\nMembers of the armed forces spoken of in this clause mean persons in flesh and blood and not their inanimate photographs. (443 BJ\n\n(b) In one sense even election propaganda carried on vigorously, blaringly and systematically through charisma! leaders or through various media in favour of a candidate by recounting the glories and achievements of that candidate or his political party in administrative or political field, dos meddle with aml mould the indepen_dent volition of electors, having poor reason and little educa tion in the exercise of their franchise. That such a wide construction would. not be in consonance with the interidment of th.e legislature is discrenible from the proviso to this clause.\n\nThe proviso illustrates that ordinarily interference with the free exercise of electoral right involves violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to mduce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The orefix 'undue' indicates that there must be some abuse\n\nor inlluence. 'Undue influence' is used in contra-distinction to 'proper inllu• ence'.\n\nConstrued in the light of the proviso cl. 2 of s.123 does not bar or penalise legitimate canvassing or appeals to Teason .qnd judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate.\n\nSuch proper and peaceful persuasion is the motive force of our democratic prOC%ss (442 E-G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 186 of 1973 ' From the Judgment & Orrler dated the 27th November, 1972 of the Punjab & Haryana High Court in Election Petition No. 15 of 1972.\n\nKapil-Sibal, N. D. Bhargava and S. K. Gambhir, for tl.e appellants. s. N. Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the Respondent No. 1\n\nThe Judgment of the Court was delivered by\n\n[1975) 3 S.C.R.\n\nSARIWUA, J.\n\nPrithvi Singh Azad (hereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the ck:ction to Pu~1jab Vidhan Sabha from the Kh•anna\n\n(Reserved) A%cmbly constituency.\n\nAzad wa.s the nominee of the Congress Puty and Bachan Singh of the Akali Dal.\n\n The poll was held on March 11, 1972. On March 12, 1972°, Azad was declared elected. He secured 25,984 votes, whereas :Bachan Singh appellant No. l polled 24,865 votes.\n\nThe other two forfeited their securities.\n\nO..i April 26, 1972, Bachan Singh; the unsuccessful candidate and one elector, Harcharan Singh, jointly filed an election petition under the Representation of the People Act, 1951 challenging the eJ.ection of the returned candidate on, scrveral grounds.\n\nIn the event of Azad's clectim being set aside, Bachan Singh claimed a further declaration under s.101 of the Act of his own election.\n\nThe petition was dismissed by the High Court.\n\nHence this appeal by the petitioners.\n\nBefore us, only two grounds have been pressed into argument by 'Mr. Kapil Sibal, learned Counsel for the appellants.\n\nFirstly, it is eont•ended that the returned candid•.:ite had obtained I e a.>sistm1cc of one Lance Naik Gurdcv Singh, a member of the rmed Forces of tht: Union, in his election and was thus guiity of . ''mmitting the corrupt practice defined in s.123 (7).\n\nIn this connection, the petitioner tried to establish two facts .: (a) that Lance Naik Gurdev Singh was appointed as his polling agent by the returned candidate and the former acted as such at the polling ;, tation, Rabon Majra; (b) that the Lance Naik oactually canvassed for votes in the company of the returned candidate.\n\nIn regard to the first fact, the petitioners relied upon the statement of L/N Gurdev Singh, who was examined as C.W.I., and the certified copy Ex.P.W.\n\n30/4, of the Polling Agents' Form.\n\nRegarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8\n\nBhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh.\n\nThey also >ought support from the statement of C.W. 1. ·\n\nOn both tl1ese poi:1ts, the learned Judge of the High Court found against the petitioners. In his opinion,· the person who had 'been appointed as his polling agent by the returned candidate was anothei\n\nGurdev Singh (RW2) and not L/N Gurdev Singh (C.W. 1).\n\nHe further held that the oral evidence adduced by the petitia,1ers to-<mbstantiate the allegation of canvassing by the Lance Naik in associllltion with the returned candidate, was of a partisan character, and in the absence of coriroboration from any independent source, could not be accepted.\n\nBACHAN SINGH v. PR!THVI SINGH (Sarkaria, J.) 441\n\nMr. Sibal contends that the High Court grievously erred in holding: that it was R.W.2 and not C.W.1 who had been appointed as his polling agent by the Respondent.\n\nAccording to the Coll'ilsel, there are clinching circumstances in this case which show that it was Lance Naik Gurdev Singh who had been appointed and iicted as the polling agent of the Respondent; that the certified copy, Ex.P.W. 30/1 obtained by the petitiaaer was a true copy of the original Form. R.W.2, it is submitted, is an imposter and the Polling Agents' Form P.W. 30/4, was \\l false and fabricated document.\n\nOnce it is held, proceeds the argument, that LfN Gurdev Singh (C.W.1) had acted as the Polling Agent of the Respondent, that would lend assurance toand probabi- Jise the account given by P.Ws. 9 to 14.\n\nThe contci,1tion cannot be accepted.\n\nFirstly, we do not think that the finding of the High Court that R.W.2-and not C.W.1-was the Polling Agent of the Respondent, can be rnid to be palpably wrong necessitating a reappraisal of the evidence by this Court.\n\nScrondly, even on the assumpti<Yn that L/N Gurdev Singh C.W.1, was the person who had been appointed as the po!Iing agent, the evidence on the record was not sufficiently clinchinl!\n\nto bring home the charge to the Respondent.\n\nL/N Gurdev Si'.1gh (C.W.1) himseli had knocked the bottom out of the petitioner's case.\n\nThe Lance Naik while admitting that he had canvassed for votes for the returned candidate, categorically asserted that he did such canvassing on his own and not in the company of ' the rcsoondent.\n\nThe Lance Naik was examined as a court witness.\n\nThe appellants had a right to cross-examine hin1.\n\nBut they did not a>ail of this right.\n\nThey did not put any question to the witness to challenge his account. L/N Gurdcv Singh's statement therefore, that he had never canvassed with or at the instance of the returned candidate, would be deemed to have been accepted by them. C.W. 1 was the keystone of the arch which the petitioners tried to build to sustain this charge.\n\nFailure of C.W.1, therefore, to support the partisan P .Ws. on all the material facts constituting the charge, must Iead to the collapse of whole arch.\n\nMoreover, since the deletion of the words \"or a polling agent or a counting agent\" from Explanation(Z) of s. 123(7) by the Amending Act 47 of 1966, a member of the Armed Forces merely by acting as a polling agent. is not deemed to assist in the furtherance of the pros-· pccts. of a candid>ate's clectioa. within the contemplation of s.123 (7) ,\n\nWe would therefore reject the first contention and affirm the finding of the court below on this Jssue. ·\n\nThe next charge which has been agitated before us relates to the poster, &h.PW15/1 which. was published bv the Pradesh COU2fess Committee. It bore the photographs of the Prime Minister Smt. H l11dira Gandhi, Shri Jagjiwan Ram, Defence Minister and Shri Swaran Singh, Foreign Minister in the first row. Beneath the first row were\n\nthe photograp:1s. of three Chiefs a!ud four Generals of ilie Armed Forces. It bore the caption '.'Pillars of Victory\": It is aUeged that\n\n. below these photographs was printed the Congress symbol of Cow A and Calf.\n\nOn a complaint being made, the Election Commission of India moved in the matter and directions were issueq to the Punjab Pradesh Congress Committee to withdraw the poster, which, in consequence, was withdrawn.\n\nb his written statement, the returned candidate pleaded that he was unaware of any such poster. In cross-examination, however, be B (as R.W.6) admitted that the letter Ex.R.W.6/1 bad been issued by S. P. Mittal to all the Presidents of the Di.strict Congress Committm in Punjab directing them to withdraw this poster.\n\nR.W.6 admitted that this poster bore the photographs of Service Chiefs alon~~ with those of the Prime Minister and two other Ministers-nil of whom were described as Pillars of Victory. He, however, disclaim1::d th'at he had anything to do with the distribution of this poster.\n\nMr. Sibal contc,1ds that the publication of this poster not only amounted to the exercise of \"undue influence\" within the contemplation of s.123 ( 2) but also constituted an attempt to obtain or procurn assistance from the members of the Armed Forces of the Union for fur- .thcrance of the prospects of the retumed candidate's election within the purview of :; J 23 (7).\n\nThe contc'.1tion is ingenious but unsusruinablc.\n\nDoubtless the definition of 'undue influence' in sub-s. (2) of s. 123 is couched in very wide terms, and on first flush seems to cover every conceivable act which directly or indirectly interferes or attempts to interfere with the fn:e exercise of electoral right. In one sens1~ even election propaga:ada carried on vigorously, blaringly and system21tically\n\nthrough charisma! leaders of through various media in favour of '.! candidate by recounting the glories and achievements of that candidate or bis political party in adminisrrative or political field., does meddle with and mould the independent volition of electors, !raving poe:r reason and little education, i.i the exercise of their franchise.\n\nThat such a wide construction would not be in consonance with the intendment of the legislature is discernible from the proviso to this .clause.\n\nThe proviso jllustrates that ordinarily interference wit:h the free exercise of electoral right involves either violence or threat or r.:ijury of any kind to any candidate or un elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix 'undue'\n\nindicates that there must be some abuse of influence. undu.: influence' is used in contra-distinction to 'proper influences'. Construed in the light of the proviso, clause (2') of s. 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of th:.: voters or o$er lawful means of persuading voters to vote or not to vote for\n\na candidate. Ieed such proper and peaceful persuasion is the motivt: force of our democratic process. ,\n\n~ We are unable to 1apprecia~ how the. publicatio'.1 of this poster mtcrfered or was cakulatcd to 10terlere with the free exercise of the .electoral right of any person. There was nothing in it which amounted\n\nBACHAN SINGH v. PRllllVI SINGH (Sarkaria, J.)\n\nto a threat of injury or undue inducement of the kind inhibited by s.123(2).\n\nNor could the publication of this poster fall within the ambit of s.123(7). The 'members' of the Armed Forces spoken of in this Clause mean persons in flesh and blood and not their inanimate photographs.\n\nIn short, the publication of the poster was an act of impropriety hut not one of corrupt practice falling within the mischief of s.123.\n\nNo other point has been argued before us.\n\nThe appeal fails and is dismissed with costs.\n\nP.B.R.\n\nAppeal dismiscd.", "total_entities": 65, "entities": [{"text": "439\n\nBACHAN SINGH", "label": "PETITIONER", "start_char": 1, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "439\n\nBACHAN SINGH", "offset_not_found": false}}, {"text": "PRITHVI SINGH & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "PRITHVI SINGH & ORS", "offset_not_found": false}}, {"text": "February 5, 1975", "label": "DATE", "start_char": 42, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "February 5, 1975 [A. ALAGffiISWAMI AND R. s. SARKARIA JJ.]"}}, {"text": "R. s. SARKARIA JJ.", "label": "JUDGE", "start_char": 81, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "S.123(2)", "label": "PROVISION", "start_char": 141, "end_char": 149, "source": "regex", "metadata": {"statute": null}}, {"text": "s.123", "label": "PROVISION", "start_char": 428, "end_char": 433, "source": "regex", "metadata": {"statute": null}}, {"text": "People Act, 1951", "label": "STATUTE", "start_char": 466, "end_char": 482, "source": "regex", "metadata": {}}, {"text": "s.123(2)", "label": "PROVISION", "start_char": 852, "end_char": 860, "source": "regex", "metadata": {"linked_statute_text": "the People Act, 1951", "statute": "the People Act, 1951"}}, {"text": "s.123(7)", "label": "PROVISION", "start_char": 1060, "end_char": 1068, "source": "regex", "metadata": {"linked_statute_text": "the People Act, 1951", "statute": "the People Act, 1951"}}, {"text": "s.123(7)", "label": "PROVISION", "start_char": 1283, "end_char": 1291, "source": "regex", "metadata": {"linked_statute_text": "the People Act, 1951", "statute": "the People Act, 1951"}}, {"text": "Naik", "label": "OTHER_PERSON", "start_char": 1326, "end_char": 1330, "source": "ner", "metadata": {"in_sentence": "Secondly, the Lanc_e Naik had cate- · gorically asserted that he did the canvassing on his own and not in the company or the respondent. ["}}, {"text": "s.123", "label": "PROVISION", "start_char": 1586, "end_char": 1591, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 2", "label": "PROVISION", "start_char": 2811, "end_char": 2816, "source": "regex", "metadata": {"statute": null}}, {"text": "s.123", "label": "PROVISION", "start_char": 2820, "end_char": 2825, "source": "regex", "metadata": {"statute": null}}, {"text": "Kapil-Sibal", "label": "PETITIONER", "start_char": 3291, "end_char": 3302, "source": "ner", "metadata": {"in_sentence": "Kapil-Sibal, N. D. Bhargava and S. K. Gambhir, for tl.e appellants.", "canonical_name": "Kapil-Sibal"}}, {"text": "N. D. Bhargava", "label": "LAWYER", "start_char": 3304, "end_char": 3318, "source": "ner", "metadata": {"in_sentence": "Kapil-Sibal, N. D. Bhargava and S. K. Gambhir, for tl.e appellants."}}, {"text": "S. K. Gambhir", "label": "LAWYER", "start_char": 3323, "end_char": 3336, "source": "ner", "metadata": {"in_sentence": "Kapil-Sibal, N. D. Bhargava and S. K. Gambhir, for tl.e appellants."}}, {"text": "s. N. Marwah", "label": "LAWYER", "start_char": 3359, "end_char": 3371, "source": "ner", "metadata": {"in_sentence": "s. N. Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the Respondent No."}}, {"text": "Lalita Kohli", "label": "LAWYER", "start_char": 3373, "end_char": 3385, "source": "ner", "metadata": {"in_sentence": "s. N. Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the Respondent No."}}, {"text": "K. C. Dua", "label": "LAWYER", "start_char": 3387, "end_char": 3396, "source": "ner", "metadata": {"in_sentence": "s. N. Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the Respondent No."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 3401, "end_char": 3411, "source": "ner", "metadata": {"in_sentence": "s. N. Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the Respondent No."}}, {"text": "SARIWUA", "label": "JUDGE", "start_char": 3500, "end_char": 3507, "source": "ner", "metadata": {"in_sentence": "1\n\nThe Judgment of the Court was delivered by\n\n[1975) 3 S.C.R.\n\nSARIWUA, J.\n\nPrithvi Singh Azad (hereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the ck:ction to Pu~1jab Vidhan Sabha from the Kh•anna\n\n(Reserved) A%cmbly constituency."}}, {"text": "Prithvi Singh Azad", "label": "PETITIONER", "start_char": 3513, "end_char": 3531, "source": "ner", "metadata": {"in_sentence": "1\n\nThe Judgment of the Court was delivered by\n\n[1975) 3 S.C.R.\n\nSARIWUA, J.\n\nPrithvi Singh Azad (hereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the ck:ction to Pu~1jab Vidhan Sabha from the Kh•anna\n\n(Reserved) A%cmbly constituency.", "canonical_name": "PRITHVI SINGH & ORS"}}, {"text": "Bachan Singh", "label": "PETITIONER", "start_char": 3585, "end_char": 3597, "source": "ner", "metadata": {"in_sentence": "1\n\nThe Judgment of the Court was delivered by\n\n[1975) 3 S.C.R.\n\nSARIWUA, J.\n\nPrithvi Singh Azad (hereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the ck:ction to Pu~1jab Vidhan Sabha from the Kh•anna\n\n(Reserved) A%cmbly constituency.", "canonical_name": "439\n\nBACHAN SINGH"}}, {"text": "Naurang Singh", "label": "OTHER_PERSON", "start_char": 3599, "end_char": 3612, "source": "ner", "metadata": {"in_sentence": "1\n\nThe Judgment of the Court was delivered by\n\n[1975) 3 S.C.R.\n\nSARIWUA, J.\n\nPrithvi Singh Azad (hereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the ck:ction to Pu~1jab Vidhan Sabha from the Kh•anna\n\n(Reserved) A%cmbly constituency."}}, {"text": "Lachchman Singh", "label": "OTHER_PERSON", "start_char": 3617, "end_char": 3632, "source": "ner", "metadata": {"in_sentence": "1\n\nThe Judgment of the Court was delivered by\n\n[1975) 3 S.C.R.\n\nSARIWUA, J.\n\nPrithvi Singh Azad (hereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the ck:ction to Pu~1jab Vidhan Sabha from the Kh•anna\n\n(Reserved) A%cmbly constituency."}}, {"text": "Bachan Singh", "label": "PETITIONER", "start_char": 3930, "end_char": 3942, "source": "ner", "metadata": {"in_sentence": "He secured 25,984 votes, whereas :Bachan Singh appellant No.", "canonical_name": "439\n\nBACHAN SINGH"}}, {"text": "April 26, 1972", "label": "DATE", "start_char": 4029, "end_char": 4043, "source": "ner", "metadata": {"in_sentence": "O..i April 26, 1972, Bachan Singh; the unsuccessful candidate and one elector, Harcharan Singh, jointly filed an election petition under the Representation of the People Act, 1951 challenging the eJ.ection of the returned candidate on, scrveral grounds."}}, {"text": "Harcharan Singh", "label": "OTHER_PERSON", "start_char": 4103, "end_char": 4118, "source": "ner", "metadata": {"in_sentence": "O..i April 26, 1972, Bachan Singh; the unsuccessful candidate and one elector, Harcharan Singh, jointly filed an election petition under the Representation of the People Act, 1951 challenging the eJ.ection of the returned candidate on, scrveral grounds."}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 4165, "end_char": 4203, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Azad", "label": "OTHER_PERSON", "start_char": 4295, "end_char": 4299, "source": "ner", "metadata": {"in_sentence": "In the event of Azad's clectim being set aside, Bachan Singh claimed a further declaration under s.101 of the Act of his own election."}}, {"text": "s.101", "label": "PROVISION", "start_char": 4376, "end_char": 4381, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Kapil Sibal", "label": "PETITIONER", "start_char": 4569, "end_char": 4580, "source": "ner", "metadata": {"in_sentence": "Before us, only two grounds have been pressed into argument by 'Mr. Kapil Sibal, learned Counsel for the appellants.", "canonical_name": "Kapil-Sibal"}}, {"text": "Lance Naik Gurdcv Singh", "label": "OTHER_PERSON", "start_char": 4712, "end_char": 4735, "source": "ner", "metadata": {"in_sentence": "Firstly, it is eont•ended that the returned candid•.:ite had obtained I e a.>sistm1cc of one Lance Naik Gurdcv Singh, a member of the rmed Forces of tht: Union, in his election and was thus guiity of . ''", "canonical_name": "Lance Naik Gurdcv Singh"}}, {"text": "s.123", "label": "PROVISION", "start_char": 4864, "end_char": 4869, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Lance Naik Gurdev Singh", "label": "OTHER_PERSON", "start_char": 4952, "end_char": 4975, "source": "ner", "metadata": {"in_sentence": "a) that Lance Naik Gurdev Singh was appointed as his polling agent by the returned candidate and the former acted as such at the polling ;, tation, Rabon Majra; (b) that the Lance Naik oactually canvassed for votes in the company of the returned candidate.", "canonical_name": "Lance Naik Gurdcv Singh"}}, {"text": "Rabon Majra", "label": "OTHER_PERSON", "start_char": 5092, "end_char": 5103, "source": "ner", "metadata": {"in_sentence": "a) that Lance Naik Gurdev Singh was appointed as his polling agent by the returned candidate and the former acted as such at the polling ;, tation, Rabon Majra; (b) that the Lance Naik oactually canvassed for votes in the company of the returned candidate."}}, {"text": "Subedar Bachan Singh", "label": "WITNESS", "start_char": 5439, "end_char": 5459, "source": "ner", "metadata": {"in_sentence": "Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8\n\nBhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh."}}, {"text": "Dant Singh", "label": "WITNESS", "start_char": 5467, "end_char": 5477, "source": "ner", "metadata": {"in_sentence": "Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8\n\nBhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh."}}, {"text": "Bhagat Singh", "label": "WITNESS", "start_char": 5485, "end_char": 5497, "source": "ner", "metadata": {"in_sentence": "Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8\n\nBhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh."}}, {"text": "Rulda Singh", "label": "WITNESS", "start_char": 5504, "end_char": 5515, "source": "ner", "metadata": {"in_sentence": "Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8\n\nBhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh."}}, {"text": "Sadhu Singh", "label": "WITNESS", "start_char": 5524, "end_char": 5535, "source": "ner", "metadata": {"in_sentence": "Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8\n\nBhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh."}}, {"text": "Arjan Singh", "label": "WITNESS", "start_char": 5565, "end_char": 5576, "source": "ner", "metadata": {"in_sentence": "Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8\n\nBhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh."}}, {"text": "}iaracharan Singh", "label": "WITNESS", "start_char": 5586, "end_char": 5603, "source": "ner", "metadata": {"in_sentence": "Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8\n\nBhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh."}}, {"text": "Gurdev Singh", "label": "WITNESS", "start_char": 5867, "end_char": 5879, "source": "ner", "metadata": {"in_sentence": "In his opinion,· the person who had 'been appointed as his polling agent by the returned candidate was anothei\n\nGurdev Singh (RW2) and not L/N Gurdev Singh (C.W. 1)."}}, {"text": "Sibal", "label": "OTHER_PERSON", "start_char": 6271, "end_char": 6276, "source": "ner", "metadata": {"in_sentence": "BACHAN SINGH v. PR!THVI SINGH (Sarkaria, J.) 441\n\nMr. Sibal contends that the High Court grievously erred in holding: that it was R.W.2 and not C.W.1 who had been appointed as his polling agent by the Respondent."}}, {"text": "LfN Gurdev Singh", "label": "WITNESS", "start_char": 6894, "end_char": 6910, "source": "ner", "metadata": {"in_sentence": "Once it is held, proceeds the argument, that LfN Gurdev Singh (C.W.1) had acted as the Polling Agent of the Respondent, that would lend assurance toand probabi- Jise the account given by P.Ws."}}, {"text": "Gurdev", "label": "WITNESS", "start_char": 7541, "end_char": 7547, "source": "ner", "metadata": {"in_sentence": "L/N Gurdev Si'.1gh (C.W.1) himseli had knocked the bottom out of the petitioner's case."}}, {"text": "Gurdcv Singh", "label": "OTHER_PERSON", "start_char": 8038, "end_char": 8050, "source": "ner", "metadata": {"in_sentence": "L/N Gurdcv Singh's statement therefore, that he had never canvassed with or at the instance of the returned candidate, would be deemed to have been accepted by them."}}, {"text": "s. 123(7)", "label": "PROVISION", "start_char": 8557, "end_char": 8566, "source": "regex", "metadata": {"statute": null}}, {"text": "s.123", "label": "PROVISION", "start_char": 8785, "end_char": 8790, "source": "regex", "metadata": {"statute": null}}, {"text": "H l11dira Gandhi", "label": "LAWYER", "start_char": 9095, "end_char": 9111, "source": "ner", "metadata": {"in_sentence": "H l11dira Gandhi, Shri Jagjiwan Ram, Defence Minister and Shri Swaran Singh, Foreign Minister in the first row."}}, {"text": "Jagjiwan Ram", "label": "OTHER_PERSON", "start_char": 9118, "end_char": 9130, "source": "ner", "metadata": {"in_sentence": "H l11dira Gandhi, Shri Jagjiwan Ram, Defence Minister and Shri Swaran Singh, Foreign Minister in the first row."}}, {"text": "Swaran Singh", "label": "OTHER_PERSON", "start_char": 9158, "end_char": 9170, "source": "ner", "metadata": {"in_sentence": "H l11dira Gandhi, Shri Jagjiwan Ram, Defence Minister and Shri Swaran Singh, Foreign Minister in the first row."}}, {"text": "Election Commission of India", "label": "ORG", "start_char": 9482, "end_char": 9510, "source": "ner", "metadata": {"in_sentence": "On a complaint being made, the Election Commission of India moved in the matter and directions were issueq to the Punjab Pradesh Congress Committee to withdraw the poster, which, in consequence, was withdrawn."}}, {"text": "Punjab Pradesh Congress Committee", "label": "ORG", "start_char": 9565, "end_char": 9598, "source": "ner", "metadata": {"in_sentence": "On a complaint being made, the Election Commission of India moved in the matter and directions were issueq to the Punjab Pradesh Congress Committee to withdraw the poster, which, in consequence, was withdrawn."}}, {"text": "S. P. Mittal", "label": "OTHER_PERSON", "start_char": 9860, "end_char": 9872, "source": "ner", "metadata": {"in_sentence": "R.W.6/1 bad been issued by S. P. Mittal to all the Presidents of the Di.strict Congress Committm in Punjab directing them to withdraw this poster."}}, {"text": "Punjab", "label": "GPE", "start_char": 9933, "end_char": 9939, "source": "ner", "metadata": {"in_sentence": "R.W.6/1 bad been issued by S. P. Mittal to all the Presidents of the Di.strict Congress Committm in Punjab directing them to withdraw this poster."}}, {"text": "s.123", "label": "PROVISION", "start_char": 10398, "end_char": 10403, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 10744, "end_char": 10750, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 12062, "end_char": 12068, "source": "regex", "metadata": {"statute": null}}, {"text": "Sarkaria", "label": "JUDGE", "start_char": 12583, "end_char": 12591, "source": "ner", "metadata": {"in_sentence": "There was nothing in it which amounted\n\nBACHAN SINGH v. PRllllVI SINGH (Sarkaria, J.)\n\nto a threat of injury or undue inducement of the kind inhibited by s.123(2)."}}, {"text": "s.123(2)", "label": "PROVISION", "start_char": 12665, "end_char": 12673, "source": "regex", "metadata": {"statute": null}}, {"text": "s.123(7)", "label": "PROVISION", "start_char": 12742, "end_char": 12750, "source": "regex", "metadata": {"statute": null}}, {"text": "s.123", "label": "PROVISION", "start_char": 13010, "end_char": 13015, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_444_452_EN", "year": 1975, "text": "UNION OF INDIA\n\nGURBA.KSH SINGH & ANOTIIER\n\nFebruary 5, 1975\n\n[K. K. MATHEW, P. N. BHAGWATI,\n\nAND N. L. UNTWALIA, JJ]\n\nDisplaced Pcrsoris (.Compe11sa1ion a11d Rlwbilitai/on) A.ct, 1954 and Ge11ernl Clause& Act (IO of 1891) S. 16, and Const/1111/on of India 1950, Art. 310(1)- l'ost of Asstt. Commissioner tmder 195-4 Act-Whether services of lnwmlm1: cordd b~ tmn/11atd by State Goi•ernmmt.\n\nUnder s. 3( l) of lhe Di11placed Persons (Compensation and Rehabilitation) Act, 195,, tho post of Assistant. Settlement Commissioner i~ a post und,1:r th~\n\nUnion of India to which the appointment is to be made by the Central G1ivern nwnt.\n\nIn exercise of this power the Central Government appointed the first rc1; ponJcnt ro the po3t by order dated 3rd September, 1955. Since the post was emailed\n\nby tho President of India only for a period of 6 months the santion for lh1~ po•I came to llll end on 29th February 1956. The first respondent, however, continued to function on the basis of sanction to il~ continuance given by th~ Siak Government. Thereafter, by an order dated 17th April, 1956, the State Government purported to terminate the services of the first respondent with immediate effect. After some correspondence, on February 18, 1959, the Central Government issued a memorandum that on the expiry of the period of one month given in the earlier memorandum of January 18, 1959 his services stood krmcnated with effect from February 18, 1959. The respondent filed a suit against the Central and the State Governmeal' contending that both their orders terminating bis serviceR were illegal and invalid and for recovery of arrears o[ salary and allowances. The trial con:t dismissed the suit. Iu appeal to the High Court, he contended that his se.n•ice was validly terminated only by the memorandum dated !8th January 1959, is:<ued by the Central Government, am! th .. 1 he was therefore entitled to arrears of salary and allowances upto 18th Fcbn1 ary, 1959. This contention was accepted by the High Court.\n\nDismissing the appeal to this Court.\n\nHELD : The Central Government alone could terminate the appointment both as the appointing authority us :1lso under Art. 310( I) of the Constitution.\n\n[451 HJ\n\n(a) Tho Stat'~ Government had no power to make the appointment t1.l Ilic F ria&t unles.q such power wa~ conferred upon it by virtue of a direction given by the Central Government under s. 34, but there W!!S no such direction in the present case. The Central Government ool:i empowered the State Government to nominat\" the persoti to be npoointed 'to th~ post bat the appoinlme1:t of th~ rierson so nomi.nated could only be made and, in fact, was made by th~ C(ntn1l Government by its order dated 3rd fieptcmber, 195S. [450 D•Fl\n\n(b) Tho State Government's order date<! !st December, 1955 purporting to appoint tho first t'C!IPOndcnt was roely a forn1al nppolntmeut letter pursuunit to (; tho suggestion of the Central Government.\n\nIt had no legal consequence r.incc hy that ti.roe the first rpondent was already appointed to the post. (450 Gl\n\n(c) Moreover. the post was sanctioned by the President of India and cm1tecl\n\nh) the Central Government and the whole of the expenditure in connection with it was to be borne out of funds allocated by the Central Government.\n\nTh~ State Government's order pnrporting to acoord sanction to the creation of ; he post was only for the purpose of reg'Jfarising its mm accounlq procednre in di, bursing the amount allocated by the C.cntral Government. [450 H-451 BJ H\n\n(d) When the questiocr regarding the issne of pay slip in favour of the li.fst respondent for the pc•riod subsequent to 29th February, 195fi, arose, th~ ;\\ccountant General of !~ State pointed out that the sanction to the continuance\n\n?f the post aiven by the State Government was. meaningless and ineffective and ii could not be acted upon until receipt ot sanction to its continuancy from the Central Government. [451 C-D)\n\nTherefore, the Central Government, which was the appointing authority could terminate the service of the first respondent under s. 16 General Clause~ Act, 1897. [451 G] - ' '\n\n(e) There is no provision under which the State Government could hve the power to determine the appointment as Assistant Settlement Commlss10ner made by the Central Government under s. 3. The person appointed would hold the post durina the pleasure of the President and only the Central Government would lie entitled to terminate it. [451 GHJ\n\nThe High Court was, therefore, ril!ht in taking the view that the order of tho State Government dated April 17, 1956, was ineffectual and invalid and that the service of the first respondent was validly terminated only on Feoruary 18, 1959, by the Central Government. [452 A-BJ\n\nS. R. Tiwari v. Dr. Board, .-4:ra [1964] 3 S.C.R. 55, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 11 of 1968.\n\nFrom the judgment and order dated the January 16, 1967 of the Punjab & Haryana Hih Court in Civil Regular Firsi Appeal No. 324 of 1961.\n\nR. N. Sachthry, for the appellant.\n\nHarbans Singh, !or respondent No. 1.\n\nThe JudiltJ.ent of the Court was delivered by\n\nBHAGWATI, J.\n\nTLe questio~ that arises for determination in this appeal is as to which authority was entitled to terminate the service of the first respondent-tho Central Government or the Government of Punjab.\n\nThe firs• respondent was, prior to his appointment as an Assistant Settlement Commissioner, holdin1 the post of Deputy Registrar, Land Record in a temporary capacity under the State ot Punjab. The first respondent had no lien on any permanent post and was a _temporary servant of tho Punjab Government. On the coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1954\n\n(hereiniaft.er refeired to as the Act) it became necessary to appoint officers and staff in tho Stato of Punjab for the purpose of carrying out various functions and duties under the Act. One of such fl!nctions\n\nand duties was grant of proprietory rights to quasi permanent allottees of agricultural land ar4d houses in the rural areas in the State of\n\nPunjab. The President of India, therefore, sanctioned the creation of certain posts-which included two .posts of Assistant Dirctor to be designated as Assistant Settlement C'.onunissioner under the Actfor a period of six months from the date of promulgation of the Rules framed under the Act \"for the work connected with the conversion of quasi-permanent allotee,, into permanent ones\" and the Central Government, by its Jetter dated 18th April, 1955 conveyed this sanction to the State Go•ernment. This letter contained a direction that tho O'fer-all oxpenditurc in connection with these posts\n\n14-423SCI\\75\n\nsanctioned by the President of India should not exceed Rs. 6.50 lacs and it would be shared between the Central Government and the State Government in the ratio of 50-50. It was also suggested in this letter that the names of officers appointed as Assistant Directors and Naib Tehsildars should be intimated in due course for issue of necessary notifications under the provisionf of the Act. The State Government, by its letter dated 3rd July, 1955, pointed out to the Central Goverament that having regard to the large magnitude of the work involved, it would be necessary to have two whole-time officers exclusively devoted to this work and suggested that two posts should, therefore, be permitted to be created, one of a Deputy Secretary \"who would have administrative control over all the mana,1iing officers and settlement officers and the staff appointed in connc.o::tion with the conferment of permanent rights\" and the other of an A1~is\n\ntant Settlement Commissioner. It appears that the Central Gov1:r .... ment in the mean1ime reconsidered its earlier decision that the expenditure on the posts in connection with the grant of proprietory rights to quasi-permanent allottees should be borne 50-50 between the Central Government and the S•ate Government and by 'ts letter dated 20th July, 1955 intimated to the State Government that the C'.-enfral Government would bear the entire expenditure on the staff appointed to these pots on condition that \"the staff in question will be engaged for a period of six months only\". The Central Gove:rnment thereafter, by its fotter dated 23rd July, 1955 conveyed the sanction of the President of India to the creation of one post of Additional Settlement Commissioner and one post of Assistant Settlement C{llllimissioner \"for a period of six months for the work connected \\vith\n\nthe conversion of quasi-permanent allotments into permanent ones on the scale of pay noted against each plus usual allowances admissible to the State Government employees of their status\". We are corn-· cerned in this appeal with the J'OSt of Assistan't Set'lement Commissioner sanctioned by the President of . India as mentioned in this letter dated 23rd July, 1955.\n\nThough the order of appointment of the first respondent to the post of Assistant Settlement Commissioner was not yet passed, the first respondent relinquished charge of his post of Deputy Registrar, Land Record and assumed charge of the post of Assistant Settlement Commissioner on the forenoon of 1st August, 1955 as appears from the certificate dated 1st August, 1955 (E'x. D-1). The Central Government thereafter, in exercise of the powers conferred by sub section ( 1) of section 3 of the Act, issued a notification dated 3rd September, 1955 appointin, g the first respondent to the post of Assist3nt Settlement Commissioner \"for the purpose of performing the\n\nfunctions assigned to an Assistant Settlement Commissio•er by or under the Act\". The Ontral Government also issued another notification of the same date in exercise of the powers conferred by sub-section ( 1) of sedtion 3 of the Act directing inter alia that the first respon• dent: who has been a'ppoint~. under that sub-section to the post of\n\nAss1stan;. Settlement Comm1ss1oner, shall perform the functions assigned to an Assimnt Settlement Commissioner by or under the\n\nAct \"only in respect of agricultural land situated in the State of Punjab in rural area as defined in clause (f) of rule 2 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, including houses, if any, in any such area allotted along with such lands\". A copy of the notification dated 3rd September, 1955 appointing the first respondent to the post of Assistant Settlement Commissiornr was forwarded by the Central Government to the State Government along with its letter dated 3/7th September, 1955. The Central Government also addressed a let'ter dated 21st September 1955 !0 the State Government pointing out that since the 1st Respondent was to work as a whole time Assistant Settlement Commissioner, it was presumed that he had relinquished charge of his previous office and adding that the first respondent having already been notified as an Assistant settlement Commissioner and a copy of the relevant notification having bee~ forwarded to the State Government along with the let'Ler dated 3rd/7th September, 1955, \"formal appointment letter\" may be issued by the State Government and copies endorsed to this Ministry\". ·\n\nIt appears that 'the Governor of Punjab also, by an order dated 30th November, 1955, sanctioned the creation of certain posts which included one post of Assistant Settlement Commissioner \"for\n\nix mon'ths. connected with the conferment of permanent ownership rights OI'i quasi-permanent al!ottees of the land in the Rehabilitation Department with effect from forenoon of 1st August, 1955\". Thernafter, on 1st December, 11155 the Governor of Punjab issued an order appointing the first respondent as Assistant Settlement Commissioner \"against the temporary post created in the Rehabilitation Department for the work connected with the conferment of permanent ownership rights on the quasi-permanent allottees of evacuee lands for ; i period of six months with effect from the 1st of August, 1955\".\n\nThe State Government, by its letter dated 15th December, 1955 intimated to the Central Government that the first respondent, appointed as Assistant Settlement Commissioner, had been given the scale of pay as sanctioned by the Central Government and confirmed that the first respondent was working as a whole itime Assistant Settle• ment Commissioner.\n\nThe first respondent accordingly held the post of Assistant Settle ment Commissioner and carried out the functions and duties attoached to that post.\n\nSince the post of Assistant Settlement Commissioner was created by the President of India only for a period of six months and the first respondent was appointed to that post by the Central ·\n\nGovernment on September 1955, the sanction for the post obviously came to an end on 20th February, 1956.\n\nThe first respondent, however, confamed to function as Assist•ant Settlement Commissioner on the basis of sanction to the continuance of the post given by the Government of Punjab.\n\nThe Accountant General, Punjab took the view that the post of Assisstant Settlement Commissioner held by the first respondeat having been created by the Central Government, the sanction to the continuance of the post received from the Punjab\n\nGovernment was futile and could not be acted upon until receipt or\n\n448 SUPREME CfOURT REPORTS\n\n(1975] 3 S.C.R.\n\nsanction from the Central Govern_roent, and by his letter dated 21st April, 1956, poi'flted out to the State Government that the pay slip in favour of the first respondent for the period from 18th January, 1956 to 29th February, 1956 was being issued, but so far as the) pay for the subsequent period upto 30th April, 1956 was concerned, \"the\n\nsanction to the. continuance of the post of Assistant Settlement Commissioner upto 30.4.1956 which has bee~ received in this office from the Assistant Secretary to the Govemmen~ of Punjab, Finance De:part ment will be acted upon on receipt of \"Sanction\" from the Government of India as the post was created by them\" and an attested copy of the same, if received, \"may please be sent to enable this office to issue a pay slip to the officer upto 30-4-1956\". In the meantime, however, the Government of Punj•ab, by an order dated 17th April, 1956, purported to termi,1ate the service of the first respondent with immediate effect and direded that the first respondent would be paid one month's salary in lieu of notice..\n\nThe first respondent thereafter made several representations to the Central Government as well as to the State Government contending inta alia that he Vv'JS an employee 0i. the Central Government and the State Government was not entitled to terminate his service and the order of termination of his service passed by the State Government was, therefore, invalid. There was no res ponse to these representations for a long time.\n\nIt was Jnly on 10th January, 1959 that the Central Government issued a memorandum informing the first respondent that \"he was not a servant of the Gov~:rtl\n\nment of India and that, eTen in case he considered himself to be such, this memorandum should be treated as a notice terminating his\n\nservice~ \"without prejudice to the contention that ho was not the Government of India's servant.\" The Cent.ml Government also issued another memorandum on 18th February, 1959 intimating to the first respondent that on the el!piry of the period of one month given. in the earlier memorandum dated 10th January, 1959, his service stood terminated with effect from 18th February 1959.\n\nThe first respondent thereupon gave notices to the Central Government as well as the State Government under section 80 of the Code of Civil Procedure and filed a suit ai; ainst the Union of India and the State of Punjab in the Court of th.:: Senior Sub-Judge, Jullundur claiming a declaration that the order of the State Government dated 17th Apr!!.\n\n1956 as also the order of the Central Government dated 10th January, 1959 terminating the services of the first respondent were illegal a.nd invalid ao.id the first respondent continued as an Assistant Settlem1nt Commissioner in the service of the Central Government and praying, for recovery of arrears ol' salary and allowances from 21st April, 1956 being the date on which he was relieved of the office of Assistant Settlement Commissioner. Both the Union of India as well as the State of Punjab resisted the suit.\n\nThe commmi defence put forward by them was that the first respondent was a servant of the Government of Punjab and b1ing a te:mporary servant, the Government of Punjab was entitled to terminate his service on giving one month's notice of salary in lieu of notice and his service was, therefore, rightly terminated by the order of the Government of Punjab dated 17th April,\n\n1956. The Trial Court accepted this defence of the Union of India\n\n•.G\n\nand the State of Punjah a'ad dismissed suit of the first respondent with costs.\n\nThe first respondent preferred an appeal to the High Court of Punjab and Haryana.\n\nThe only contention put forward on behalf of the first respondent at the hearing of the appeal was that the first respondent was servant of the Uaion of India and not of the State of Punjab and the order dated 17th April, 1956 passed by the State of Punjab was, therefore, ineffectual to terminate the service of the first respondent and it was only on 18th February, 1959 that his service was validly terminated by the Central Government by its memorandum dated 10th January, 1959 and he was accordingly entitled to arrears of salary and allowances from 21st April, 1956 to 10th February,\n\n1959. This contention found favour with the High Court and taking the view that the first respondent was a servant of the Union of India oand not of the State of Punjab, the High C'Jurt held that his service was validly terminated only from 10th February, 1959 under the memorandum of the Central Govemmet dated 10th January, 1959 anq accordingly passed a decree in favour of the first respondent against the Union of India for Rs. 22,927.34P. representing >arrears of salary and allowances from 4th August, 1956, beh1g the date three years prior to the institution of the suit upro 10th February, 1959. The Union of India being aggrieved by the decree passed against it preferred the present appeal in the Court on certificate obtain~ under Article 13 3 (1) (a) of the Constitution as it stood at the material time.\n\nAs in the High Court, so also Q.efore us the only question debated was as to whether it was the Central Government or the State Government or the State Government which was entitled to terminate the service of the first respondent.\n\nThe first respondent did not contend that the termination of his service was by way of penalty and though it was disguised as termination simpliciter, it was in reality and substa'J.ce dismissal and hence violative of Article 311 ( 2) of .the Constitution.\n\nHe conceded that if the State Government was entitled to terminate his service, the order dated 17th April, 1956, passed by the Government of Punjab, would be valid.\n\nBut his contention was that 'the Central Government alone was competent to terminate his service and he was,,, therefore, cO'ntinued 11s an Assistant Settlement Commissioner until 10 February, 1959 when his service was terminated by the Central Government by the memorandum dated 10th January,\n\n1959. The.Union of India, on the other hoand, contended that the first respondent was a serva1at of the State of Punjab and hence the Government of Punjab was entitled to terminate his service as it did by passing the order dated 17th April, 1956.\n\nNow, if we !00k at the provisions of the ACt, it is clear that it is the Central Government which is constituted the ultimate authority responsible for the administration of the provisions of the Act.\n\nThere is a heirarchy of officers constituted under the Act for the puqiose of dischargi 1ag various functions and duties and the final revisional autrority in respect of these functions and duties is vested in the Central Government.\n\nSection 3, sub-section ( 1) confers power on the Central Governmnt to appoint \"a Chief Settlement Commissioner, a Joint\n\nSUPRBMB COURT REPORTS\n\n[1975) 3 S.C.R.\n\nChief Settlement Commissioner, and M many Deputy Chief Settlement Commissioners, Settlement Commissioners, Additional Settlement Commissioners; Assistant Settlement Commissioners, Settlement Offi.· cers, Assisant Settlement Officers and managing officers as may be necessary for the purpose of performing the functions assigned to them \"by or under the. Act and the Central Govemment is also given the power by general or special order to provide for the distribution or allocation of work to be performed by them under the Act The post of Assistant Settlement Commissioner--that being the po!; t with which we are concerned in this appeal-is, therefore, clearly a post under the Union of India to which appoi'i1tment is to be made by the Central Government.\n\nIt was in exercise of this power conferred by section 3, sub-section (1) that Central Government appointed the first respondent to the post of Assistant Settlement Commissim1er by its order dated 3rd September, 1956. The Government of Punjab had no power to make appointment to the post of Assistant Settlement Commissioner by its order dated 3rd September, 1955.\n\nThe Govern ment of Punjab had no power to make appointment to the post of Assista'.at Settlement Commissioner, unless such power was conferred upon it by virtue of a dim; tion given by the Central Government under section 34, but admittedly there was no such direction in the present case. In fact, the Central Government, by its letter dated 18ili April, 1955 requested the State Government to intimate \"the •aames of officers appointed as A.ssistant Settlement Commissioner\" for issue of necessary notification under the Act.\n\nThe Central Government did empower the State Government tG nominate the peson to be appointed to the post of Assistant Settlement Commissioner but the appointment of the person so nominated could only be made and was in fact made by the Central Government by its order dated 3rd September, 195S.\n\nOnce the appointment of the first respondent as Assistant Settlement Commissioner was made by the Central Government by its order dated 3rd September, 1955, there was no question thereafter of the State Government once again appointing him to the same post. The State Government, no doubt, by its order dated lst December, 1955, purpoted to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal \"appointment letter\" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955. It was an ineffectual and futile exercise which had no legal consequence since by that time the first respondent was already appointed to the post of Assistant Settlement Commissioner by the Central Government legaUy competent so to appoint and he was already functioning as such Assistant Settlement Commissioner. Moreover. the post of Assistant Settlement Commissioner, to which the first respondent was so appointed, was a post sanctioned by the President of India and created by the Central Government and the whole of the expenditure in connection with that post was to be borne out of the funds allocated by the Central Government, vide the letter of the Central Government dated 23rd July, 1955. It is true that the State Government also, by its order dated 30th November, 1955, purpo; ted to accord sanction to the creation of one post of Assistant Settlement Commissioner, but iliat was obviously for the purpose of regularising its own accounts procedure because ilie amount of Rs. 6.50 lacs for meet-\n\n:·\\\n\ning the expenc!iture in connection with the staff for this work was made available by the Central Government to the State Government and it was the Stiite Government which was to disburse the expe11.diture out of that amoU'at.\n\nThe post of Assistant Settlement Commissioner having already been created by the Central Government by the sanction of the President of India as conveyed under the lette~ -<lated 23rd July, 1955, did not need validation from the order of the Government or Punjab dated 30th November, 1955. In fact, when the question arose in regard to issue of pay slip in favour of the first respondent for the period subsequent to 29th February, 1956, when the original sanction of the President of India for the post of Assistant Settlement Commissioner expired, the Account':mt General, Punjab pointed out in his letter dated 21st April, 1956 that the sanction to the continuance of the post given by the Punjab Government was meaningless and ineffective and it could not be acted upon until receipt of sanction to the continuance of the po:; t from the Central Government since \"the post was created by them.\" It would therefore, be seen that the post - of Assistant Settlement Commissioner was created by the Central Government and the expeaditure in connection with it was to be met out of the funds provided by the Central Government and it was the Central Government alone which was competent to make appointment to the post and in fact, the first respO'adent was appointed to the post by the Central Government by its order dated 3rd September, 1956. It this be the correct .position, as it undeniable is, there can be no doubt that the Central Government alone could terminate the service of the first respondent. It is 1,1ow a well settled rule of interpretation that a power to appoint ordinarily implies a power to determine the employment.\n\nThat was pointed out by this Court in S. R. Tiwari v. District Board, Agra(!) :\n\n\"Power to appoint ordinarily carries with it the power to determine appointment, and a power to terminate may in the absence of restrictions express or implied be exercised, subject to the conditions prescribed in that behalf, by the authority competent to appoint.\"\n\nThis rule is also foU'nd incorporated in section 16 of the General Clauses Act, 1897. It is, therefore, clear that the Central ; Government which is given the power to make appointment to the post of Assistant Settlement Commissioner under section 3, would also have the power to determine the appointment.\n\nThe Central Government would also be entitled to terminate the appoi'atrnent, since the post of Assistant Settlement Commissioner is a post under the Union of India and the person appointed to it would hold it during the pleasure of the Presi- dent.\n\nThere is no provision under which the Government of Punjab could have the power to determi'i.1e the appointment as Assistant Settlement Commissioner madei by the Central Government under section 3.\n\nThe Central Government alone could terminate the appointment, both as the appointing authority as also under Art. 310(1) of the Consti-\n\n(1) [1964] 3 S. C.R. 55.\n\ntution.\n\nThe High Court was, therefore, right in taking the view that the order of the Punjab Government dated 17th April, 1956 was ineffectual and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on 10th February, 1959 whe'il the Central Government, by its memorandum dated 10th January, 1959, gave notice terminating the service of the first respondent. . There was no dispute before us that if the s1!rvice of the first respondent came to an end on 10th February, 1959, and not earlier on 17th April, 1956, the first respondent would be entitled to a sum of Rs. 22,927.34P. as decreed by the High Court.\n\nThe appeal, therefore, fails and is dismissed with costs in favour of the first respondent.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 77, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "GURBA.KSH SINGH & ANOTIIER", "label": "RESPONDENT", "start_char": 16, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "GURBAKSH SINGH & ANOTIIER", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 63, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 77, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ", "label": "JUDGE", "start_char": 98, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "S. 16", "label": "PROVISION", "start_char": 223, "end_char": 228, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 310(1)", "label": "PROVISION", "start_char": 263, "end_char": 274, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3( l)", "label": "PROVISION", "start_char": 397, "end_char": 405, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 661, "end_char": 679, "source": "ner", "metadata": {"in_sentence": "In exercise of this power the Central Government appointed the first rc1; ponJcnt ro the po3t by order dated 3rd September, 1955."}}, {"text": "February 18, 1959", "label": "DATE", "start_char": 1426, "end_char": 1443, "source": "ner", "metadata": {"in_sentence": "After some correspondence, on February 18, 1959, the Central Government issued a memorandum that on the expiry of the period of one month given in the earlier memorandum of January 18, 1959 his services stood krmcnated with effect from February 18, 1959."}}, {"text": "Art. 310( I)", "label": "PROVISION", "start_char": 2163, "end_char": 2175, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 2392, "end_char": 2397, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 4067, "end_char": 4072, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4297, "end_char": 4301, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 3 S.C.R. 55", "label": "CASE_CITATION", "start_char": 4772, "end_char": 4790, "source": "regex", "metadata": {}}, {"text": "R. N. Sachthry", "label": "LAWYER", "start_char": 5004, "end_char": 5018, "source": "ner", "metadata": {"in_sentence": "R. N. Sachthry, for the appellant."}}, {"text": "Harbans Singh", "label": "RESPONDENT", "start_char": 5040, "end_char": 5053, "source": "ner", "metadata": {"in_sentence": "Harbans Singh, !"}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 5125, "end_char": 5133, "source": "ner", "metadata": {"in_sentence": "The JudiltJ.ent of the Court was delivered by\n\nBHAGWATI, J.\n\nTLe questio~ that arises for determination in this appeal is as to which authority was entitled to terminate the service of the first respondent-tho Central Government or the Government of Punjab."}}, {"text": "Government of Punjab", "label": "RESPONDENT", "start_char": 5314, "end_char": 5334, "source": "ner", "metadata": {"in_sentence": "The JudiltJ.ent of the Court was delivered by\n\nBHAGWATI, J.\n\nTLe questio~ that arises for determination in this appeal is as to which authority was entitled to terminate the service of the first respondent-tho Central Government or the Government of Punjab."}}, {"text": "Punjab Government", "label": "ORG", "start_char": 5621, "end_char": 5638, "source": "ner", "metadata": {"in_sentence": "The first respondent had no lien on any permanent post and was a _temporary servant of tho Punjab Government."}}, {"text": "Stato of Punjab for the purpose of carrying out various functions and duties under the Act", "label": "STATUTE", "start_char": 5831, "end_char": 5921, "source": "regex", "metadata": {}}, {"text": "President of India", "label": "RESPONDENT", "start_char": 6100, "end_char": 6118, "source": "ner", "metadata": {"in_sentence": "The President of India, therefore, sanctioned the creation of certain posts-which included two .posts of Assistant Dirctor to be designated as Assistant Settlement C'.onunissioner under the Actfor a period of six months from the date of promulgation of the Rules framed under the Act \"for the work connected with the conversion of quasi-permanent allotee,, into permanent ones\" and the Central Government, by its Jetter dated 18th April, 1955 conveyed this sanction to the State Go•ernment."}}, {"text": "18th April, 1955", "label": "DATE", "start_char": 6522, "end_char": 6538, "source": "ner", "metadata": {"in_sentence": "The President of India, therefore, sanctioned the creation of certain posts-which included two .posts of Assistant Dirctor to be designated as Assistant Settlement C'.onunissioner under the Actfor a period of six months from the date of promulgation of the Rules framed under the Act \"for the work connected with the conversion of quasi-permanent allotee,, into permanent ones\" and the Central Government, by its Jetter dated 18th April, 1955 conveyed this sanction to the State Go•ernment."}}, {"text": "India", "label": "GPE", "start_char": 6729, "end_char": 6734, "source": "ner", "metadata": {"in_sentence": "This letter contained a direction that tho O'fer-all oxpenditurc in connection with these posts\n\n14-423SCI\\75\n\nsanctioned by the President of India should not exceed Rs."}}, {"text": "3rd July, 1955", "label": "DATE", "start_char": 7132, "end_char": 7146, "source": "ner", "metadata": {"in_sentence": "The State Government, by its letter dated 3rd July, 1955, pointed out to the Central Goverament that having regard to the large magnitude of the work involved, it would be necessary to have two whole-time officers exclusively devoted to this work and suggested that two posts should, therefore, be permitted to be created, one of a Deputy Secretary \"who would have administrative control over all the mana,1iing officers and settlement officers and the staff appointed in connc.o::tion with the conferment of permanent rights\" and the other of an A1~is\n\ntant Settlement Commissioner."}}, {"text": "Central Goverament", "label": "ORG", "start_char": 7167, "end_char": 7185, "source": "ner", "metadata": {"in_sentence": "The State Government, by its letter dated 3rd July, 1955, pointed out to the Central Goverament that having regard to the large magnitude of the work involved, it would be necessary to have two whole-time officers exclusively devoted to this work and suggested that two posts should, therefore, be permitted to be created, one of a Deputy Secretary \"who would have administrative control over all the mana,1iing officers and settlement officers and the staff appointed in connc.o::tion with the conferment of permanent rights\" and the other of an A1~is\n\ntant Settlement Commissioner."}}, {"text": "Central Gov1", "label": "ORG", "start_char": 7694, "end_char": 7706, "source": "ner", "metadata": {"in_sentence": "It appears that the Central Gov1:r .... ment in the mean1ime reconsidered its earlier decision that the expenditure on the posts in connection with the grant of proprietory rights to quasi-permanent allottees should be borne 50-50 between the Central Government and the S•ate Government and by 'ts letter dated 20th July, 1955 intimated to the State Government that the C'.-enfral Government would bear the entire expenditure on the staff appointed to these pots on condition that \"the staff in question will be engaged for a period of six months only\"."}}, {"text": "20th July, 1955", "label": "DATE", "start_char": 7985, "end_char": 8000, "source": "ner", "metadata": {"in_sentence": "It appears that the Central Gov1:r .... ment in the mean1ime reconsidered its earlier decision that the expenditure on the posts in connection with the grant of proprietory rights to quasi-permanent allottees should be borne 50-50 between the Central Government and the S•ate Government and by 'ts letter dated 20th July, 1955 intimated to the State Government that the C'.-enfral Government would bear the entire expenditure on the staff appointed to these pots on condition that \"the staff in question will be engaged for a period of six months only\"."}}, {"text": "23rd July, 1955", "label": "DATE", "start_char": 8284, "end_char": 8299, "source": "ner", "metadata": {"in_sentence": "The Central Gove:rnment thereafter, by its fotter dated 23rd July, 1955 conveyed the sanction of the President of India to the creation of one post of Additional Settlement Commissioner and one post of Assistant Settlement C{llllimissioner \"for a period of six months for the work connected \\vith\n\nthe conversion of quasi-permanent allotments into permanent ones on the scale of pay noted against each plus usual allowances admissible to the State Government employees of their status\"."}}, {"text": "section 3", "label": "PROVISION", "start_char": 9371, "end_char": 9380, "source": "regex", "metadata": {"statute": null}}, {"text": "3rd September, 1955", "label": "DATE", "start_char": 9421, "end_char": 9440, "source": "ner", "metadata": {"in_sentence": "The Central Government thereafter, in exercise of the powers conferred by sub section ( 1) of section 3 of the Act, issued a notification dated 3rd September, 1955 appointin, g the first respondent to the post of Assist3nt Settlement Commissioner \"for the purpose of performing the\n\nfunctions assigned to an Assistant Settlement Commissio•er by or under the Act\"."}}, {"text": "Act", "label": "STATUTE", "start_char": 10034, "end_char": 10037, "source": "regex", "metadata": {}}, {"text": "3/7th September, 1955", "label": "DATE", "start_char": 10531, "end_char": 10552, "source": "ner", "metadata": {"in_sentence": "A copy of the notification dated 3rd September, 1955 appointing the first respondent to the post of Assistant Settlement Commissiornr was forwarded by the Central Government to the State Government along with its letter dated 3/7th September, 1955."}}, {"text": "3rd/7th September, 1955", "label": "DATE", "start_char": 11050, "end_char": 11073, "source": "ner", "metadata": {"in_sentence": "0 the State Government pointing out that since the 1st Respondent was to work as a whole time Assistant Settlement Commissioner, it was presumed that he had relinquished charge of his previous office and adding that the first respondent having already been notified as an Assistant settlement Commissioner and a copy of the relevant notification having bee~ forwarded to the State Government along with the let'Ler dated 3rd/7th September, 1955, \"formal appointment letter\" may be issued by the State Government and copies endorsed to this Ministry\". ·"}}, {"text": "1st August, 1955", "label": "DATE", "start_char": 11553, "end_char": 11569, "source": "ner", "metadata": {"in_sentence": "connected with the conferment of permanent ownership rights OI'i quasi-permanent al!ottees of the land in the Rehabilitation Department with effect from forenoon of 1st August, 1955\"."}}, {"text": "1st December, 11155", "label": "DATE", "start_char": 11587, "end_char": 11606, "source": "ner", "metadata": {"in_sentence": "Thernafter, on 1st December, 11155 the Governor of Punjab issued an order appointing the first respondent as Assistant Settlement Commissioner \"against the temporary post created in the Rehabilitation Department for the work connected with the conferment of permanent ownership rights on the quasi-permanent allottees of evacuee lands for ; i period of six months with effect from the 1st of August, 1955\"."}}, {"text": "1st of August, 1955", "label": "DATE", "start_char": 11957, "end_char": 11976, "source": "ner", "metadata": {"in_sentence": "Thernafter, on 1st December, 11155 the Governor of Punjab issued an order appointing the first respondent as Assistant Settlement Commissioner \"against the temporary post created in the Rehabilitation Department for the work connected with the conferment of permanent ownership rights on the quasi-permanent allottees of evacuee lands for ; i period of six months with effect from the 1st of August, 1955\"."}}, {"text": "15th December, 1955", "label": "DATE", "start_char": 12022, "end_char": 12041, "source": "ner", "metadata": {"in_sentence": "The State Government, by its letter dated 15th December, 1955 intimated to the Central Government that the first respondent, appointed as Assistant Settlement Commissioner, had been given the scale of pay as sanctioned by the Central Government and confirmed that the first respondent was working as a whole itime Assistant Settle• ment Commissioner."}}, {"text": "20th February, 1956", "label": "DATE", "start_char": 12759, "end_char": 12778, "source": "ner", "metadata": {"in_sentence": "Since the post of Assistant Settlement Commissioner was created by the President of India only for a period of six months and the first respondent was appointed to that post by the Central ·\n\nGovernment on September 1955, the sanction for the post obviously came to an end on 20th February, 1956."}}, {"text": "Government of India", "label": "ORG", "start_char": 13926, "end_char": 13945, "source": "ner", "metadata": {"in_sentence": "continuance of the post of Assistant Settlement Commissioner upto 30.4.1956 which has bee~ received in this office from the Assistant Secretary to the Govemmen~ of Punjab, Finance De:part ment will be acted upon on receipt of \"Sanction\" from the Government of India as the post was created by them\" and an attested copy of the same, if received, \"may please be sent to enable this office to issue a pay slip to the officer upto 30-4-1956\"."}}, {"text": "30-4-1956", "label": "DATE", "start_char": 14108, "end_char": 14117, "source": "ner", "metadata": {"in_sentence": "continuance of the post of Assistant Settlement Commissioner upto 30.4.1956 which has bee~ received in this office from the Assistant Secretary to the Govemmen~ of Punjab, Finance De:part ment will be acted upon on receipt of \"Sanction\" from the Government of India as the post was created by them\" and an attested copy of the same, if received, \"may please be sent to enable this office to issue a pay slip to the officer upto 30-4-1956\"."}}, {"text": "Government of Punj•ab", "label": "ORG", "start_char": 14150, "end_char": 14171, "source": "ner", "metadata": {"in_sentence": "In the meantime, however, the Government of Punj•ab, by an order dated 17th April, 1956, purported to termi,1ate the service of the first respondent with immediate effect and direded that the first respondent would be paid one month's salary in lieu of notice..\n\nThe first respondent thereafter made several representations to the Central Government as well as to the State Government contending inta alia that he Vv'JS an employee 0i."}}, {"text": "17th April, 1956", "label": "DATE", "start_char": 14191, "end_char": 14207, "source": "ner", "metadata": {"in_sentence": "In the meantime, however, the Government of Punj•ab, by an order dated 17th April, 1956, purported to termi,1ate the service of the first respondent with immediate effect and direded that the first respondent would be paid one month's salary in lieu of notice..\n\nThe first respondent thereafter made several representations to the Central Government as well as to the State Government contending inta alia that he Vv'JS an employee 0i."}}, {"text": "10th January, 1959", "label": "DATE", "start_char": 14827, "end_char": 14845, "source": "ner", "metadata": {"in_sentence": "It was Jnly on 10th January, 1959 that the Central Government issued a memorandum informing the first respondent that \"he was not a servant of the Gov~:rtl\n\nment of India and that, eTen in case he considered himself to be such, this memorandum should be treated as a notice terminating his\n\nservice~ \"without prejudice to the contention that ho was not the Government of India's servant.\""}}, {"text": "18th February, 1959", "label": "DATE", "start_char": 15258, "end_char": 15277, "source": "ner", "metadata": {"in_sentence": "The Cent.ml Government also issued another memorandum on 18th February, 1959 intimating to the first respondent that on the el!piry of the period of one month given."}}, {"text": "section 80", "label": "PROVISION", "start_char": 15594, "end_char": 15604, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 15608, "end_char": 15635, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Union of India", "label": "ORG", "start_char": 15667, "end_char": 15681, "source": "ner", "metadata": {"in_sentence": "The first respondent thereupon gave notices to the Central Government as well as the State Government under section 80 of the Code of Civil Procedure and filed a suit ai; ainst the Union of India and the State of Punjab in the Court of th.::"}}, {"text": "State of Punjab", "label": "ORG", "start_char": 15690, "end_char": 15705, "source": "ner", "metadata": {"in_sentence": "The first respondent thereupon gave notices to the Central Government as well as the State Government under section 80 of the Code of Civil Procedure and filed a suit ai; ainst the Union of India and the State of Punjab in the Court of th.::"}}, {"text": "Government of Punjab", "label": "ORG", "start_char": 16446, "end_char": 16466, "source": "ner", "metadata": {"in_sentence": "The commmi defence put forward by them was that the first respondent was a servant of the Government of Punjab and b1ing a te:mporary servant, the Government of Punjab was entitled to terminate his service on giving one month's notice of salary in lieu of notice and his service was, therefore, rightly terminated by the order of the Government of Punjab dated 17th April,\n\n1956."}}, {"text": "17th April,\n\n1956", "label": "DATE", "start_char": 16717, "end_char": 16734, "source": "ner", "metadata": {"in_sentence": "The commmi defence put forward by them was that the first respondent was a servant of the Government of Punjab and b1ing a te:mporary servant, the Government of Punjab was entitled to terminate his service on giving one month's notice of salary in lieu of notice and his service was, therefore, rightly terminated by the order of the Government of Punjab dated 17th April,\n\n1956."}}, {"text": "State of Punjah", "label": "ORG", "start_char": 16810, "end_char": 16825, "source": "ner", "metadata": {"in_sentence": "The Trial Court accepted this defence of the Union of India\n\n•.G\n\nand the State of Punjah a'ad dismissed suit of the first respondent with costs."}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 16931, "end_char": 16963, "source": "ner", "metadata": {"in_sentence": "The first respondent preferred an appeal to the High Court of Punjab and Haryana."}}, {"text": "21st April, 1956", "label": "DATE", "start_char": 17521, "end_char": 17537, "source": "ner", "metadata": {"in_sentence": "The only contention put forward on behalf of the first respondent at the hearing of the appeal was that the first respondent was servant of the Uaion of India and not of the State of Punjab and the order dated 17th April, 1956 passed by the State of Punjab was, therefore, ineffectual to terminate the service of the first respondent and it was only on 18th February, 1959 that his service was validly terminated by the Central Government by its memorandum dated 10th January, 1959 and he was accordingly entitled to arrears of salary and allowances from 21st April, 1956 to 10th February,\n\n1959."}}, {"text": "10th February,\n\n1959", "label": "DATE", "start_char": 17541, "end_char": 17561, "source": "ner", "metadata": {"in_sentence": "The only contention put forward on behalf of the first respondent at the hearing of the appeal was that the first respondent was servant of the Uaion of India and not of the State of Punjab and the order dated 17th April, 1956 passed by the State of Punjab was, therefore, ineffectual to terminate the service of the first respondent and it was only on 18th February, 1959 that his service was validly terminated by the Central Government by its memorandum dated 10th January, 1959 and he was accordingly entitled to arrears of salary and allowances from 21st April, 1956 to 10th February,\n\n1959."}}, {"text": "Article 13", "label": "PROVISION", "start_char": 18299, "end_char": 18309, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 18826, "end_char": 18837, "source": "regex", "metadata": {"statute": null}}, {"text": "10 February, 1959", "label": "DATE", "start_char": 19213, "end_char": 19230, "source": "ner", "metadata": {"in_sentence": "But his contention was that 'the Central Government alone was competent to terminate his service and he was,,, therefore, cO'ntinued 11s an Assistant Settlement Commissioner until 10 February, 1959 when his service was terminated by the Central Government by the memorandum dated 10th January,\n\n1959."}}, {"text": "10th January,\n\n1959", "label": "DATE", "start_char": 19313, "end_char": 19332, "source": "ner", "metadata": {"in_sentence": "But his contention was that 'the Central Government alone was competent to terminate his service and he was,,, therefore, cO'ntinued 11s an Assistant Settlement Commissioner until 10 February, 1959 when his service was terminated by the Central Government by the memorandum dated 10th January,\n\n1959."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 20014, "end_char": 20023, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 20981, "end_char": 20990, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 21514, "end_char": 21524, "source": "regex", "metadata": {"statute": null}}, {"text": "18ili April, 1955", "label": "DATE", "start_char": 21643, "end_char": 21660, "source": "ner", "metadata": {"in_sentence": "In fact, the Central Government, by its letter dated 18ili April, 1955 requested the State Government to intimate \"the •aames of officers appointed as A.ssistant Settlement Commissioner\" for issue of necessary notification under the Act."}}, {"text": "3rd September, 195S.", "label": "DATE", "start_char": 22104, "end_char": 22124, "source": "ner", "metadata": {"in_sentence": "The Central Government did empower the State Government tG nominate the peson to be appointed to the post of Assistant Settlement Commissioner but the appointment of the person so nominated could only be made and was in fact made by the Central Government by its order dated 3rd September, 195S.\n\nOnce the appointment of the first respondent as Assistant Settlement Commissioner was made by the Central Government by its order dated 3rd September, 1955, there was no question thereafter of the State Government once again appointing him to the same post."}}, {"text": "lst December, 1955", "label": "DATE", "start_char": 22435, "end_char": 22453, "source": "ner", "metadata": {"in_sentence": "The State Government, no doubt, by its order dated lst December, 1955, purpoted to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal \"appointment letter\" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955."}}, {"text": "21st September, 1955", "label": "DATE", "start_char": 22667, "end_char": 22687, "source": "ner", "metadata": {"in_sentence": "The State Government, no doubt, by its order dated lst December, 1955, purpoted to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal \"appointment letter\" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955."}}, {"text": "30th November, 1955", "label": "DATE", "start_char": 23454, "end_char": 23473, "source": "ner", "metadata": {"in_sentence": "It is true that the State Government also, by its order dated 30th November, 1955, purpo; ted to accord sanction to the creation of one post of Assistant Settlement Commissioner, but iliat was obviously for the purpose of regularising its own accounts procedure because ilie amount of Rs."}}, {"text": "3rd September, 1956", "label": "DATE", "start_char": 25259, "end_char": 25278, "source": "ner", "metadata": {"in_sentence": "It would therefore, be seen that the post - of Assistant Settlement Commissioner was created by the Central Government and the expeaditure in connection with it was to be met out of the funds provided by the Central Government and it was the Central Government alone which was competent to make appointment to the post and in fact, the first respO'adent was appointed to the post by the Central Government by its order dated 3rd September, 1956."}}, {"text": "section 16", "label": "PROVISION", "start_char": 25965, "end_char": 25975, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 25983, "end_char": 26008, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central ; Government", "label": "ORG", "start_char": 26043, "end_char": 26063, "source": "ner", "metadata": {"in_sentence": "It is, therefore, clear that the Central ; Government which is given the power to make appointment to the post of Assistant Settlement Commissioner under section 3, would also have the power to determine the appointment."}}, {"text": "section 3", "label": "PROVISION", "start_char": 26164, "end_char": 26173, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "section 3", "label": "PROVISION", "start_char": 26670, "end_char": 26679, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "Art. 310(1)", "label": "PROVISION", "start_char": 26791, "end_char": 26802, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "[1964] 3 S. C.R. 55", "label": "CASE_CITATION", "start_char": 26823, "end_char": 26842, "source": "regex", "metadata": {}}, {"text": "s1", "label": "PROVISION", "start_char": 27310, "end_char": 27312, "source": "regex", "metadata": {"statute": null}}, {"text": "10th February, 1959", "label": "DATE", "start_char": 27361, "end_char": 27380, "source": "ner", "metadata": {"in_sentence": "There was no dispute before us that if the s1!rvice of the first respondent came to an end on 10th February, 1959, and not earlier on 17th April, 1956, the first respondent would be entitled to a sum of Rs."}}]}
{"document_id": "1975_3_453_462_EN", "year": 1975, "text": "RA VINDER SINGH\n\nSTATE OF HARYANA\n\nFebruflfy 7, 1975 [V. R. KRISHNA IYER, P. K. GOSWAMI AND R. S. SAllAIUA, JJ.]\n\nCriminal Trial-Statement of the approver-Appro:ver's evidenu to be tested by the touchstoM of independent credible evidence.\n\nCriminql Tria/-lssue-Estoppel-Parties and facts-in.Jissue to be the same m both f(za/3-A.pprovers statement not materially corroborated by other evidene, against an 11ccused 'In anothe~ trial-Cimviction, if could be based on the testimony. of the same apyrover azamst another accused in a difierent triai.\n\nThe case of the 'prosecution is that the appellant who was married to Bimla was employd in the Air Force Department at Sirsa. Durina his stay at Sirsa, when his ~1f.e .was not there, he developed intimacy with a aifl, Balbir' Kaur, who was .ms1stin~ on. marnaee, which however, the appellant posing to be a bachelor was putuns o!T holdma out hopes to her. The appellant and the Jasbir Jnder Singh (approver) who was his friend, want on two months' leave. When\n\nthe appellant and the approver went to brine Bimla back from her father's house at Komt1, the appellant asked his wife that she should a11ree to a div01ce, but she would not. .·· The appellant used to say that he would finish his wife cne day.\n\nOn July, 29, 1968, Bhanu Prakash, cousin of the appellant went to the house of the appellant. On the same day the approver alsc returned from Lucknow.\n\nOn July 30, the accused told the approver in the presence of Bhanu Prakash Singh. that he would kill his wife that day.\n\nHe replied that he had brought acid with him and it would help in expediting her death. On July 30, 1969, the appellant, his wife Bimla, his brother Satinder Kumar, the approver dnd Bhanu Prakash Singh left for Sirsa bv train from Sasni Rai!wy Station which is at a distance of four or five miles from KOiari.\n\nAfter leaving Sasni at 12 Noon, they arrived at Delhi Railway Station at 6.30 P.M. and changed for Bhatinda Railway Station. T: y reached Rewari Railway Station at about 10.30 P.M. At Rewari their bogie was attached to the train bound for Srlsa Bhatinda. When the train left Rewari at l.15 A.M. on Tuly 31, 1968, there WM no other passenger in the compartment except the above five persons.\n\nThe train stoppect for some time at the next Railway Station. When it aeain started. the accused threw his wife :Simla on .the ftoor .if the compartment by catching bold of her by the neck. When she fell down in the compartment the approver ca\\lght hold of her by the feet and Bhanu , Prakash Singh \"threw acid in her mouth\". Satinder Kumar did not take any part: The accused removed the pazebs from her feet and gold jumlas from her .ears. The accused threw Bimla from the running train in between the first and the second railway sta.tions beyond Rewari. Some acid drops fell on the hands of the accused and Bhanu Prakash Singh and on their pants and lln the accused's shirt. When the train reached Bhiwani the accused got down for purchasing two tickets f6r Bhaiiu Pral:ub Singh and tinder Kumar, but the Ticket <;:ol lector, Ragbbir Singh (PW 29) detained hiln and he missed the train. Three of the aforesaili company reached Sirsa at 9.00 A.M. on July 31, 19G8.\n\nWhen asked about the accused, the approver told Baosi Lal (PW 25) and Yudhishter Kumar' (PW 26) that the accused had missed the train at Bhiwani and would be coming by the next train. The accused arrived at Sirsa 11t 1.30 P.M. on July 31 . Bhanu Park:uh Singh left for Aligarh in the evening ot August 1. The accused and the approver resumed their duties at the Air Forllll Station on August 2. 1968.\n\nBimla who had been thirown from the running train waa ricled up, si:mi conscious, by Udmi (J'W 10) and another person from !l railway tr.ack betwee!1 Tatusana and Kosli Railway Stations, and taken to Railway HospttGI, Rewan, Where Doctor (Miss) K: Dass (PW 3) and Miss V. K. Sharma, Nurse (PW 2)\n\nSUPREME. COURT REPORTS [ 197 5] 3 s.c.R.\n\nattended upon her: Shi: could speak out a little before Mi•s Sharma, g:ave her A name as B11nla, wife of the accused and daughter of Narain Smi:h, and indicated that she was travelling wiih her hmband by train. She wai; later Sl:nt to 1he Civil\n\nHospital, Rewari, whm: she was received by Dr. Manocha (PW 1). She was not in a position to ma:k.e a statement at the Civil Ho•p:tal and she expired at g,45 P.M. on July 31, 19_68.\n\nThe appellant husband being Charged under section 3(); l.!34, I.P.C. nlong Nith some others obtained an acquittal from the Trial Judi; e.\n\nOa the State's Appeal, the High Court entered his conviction under section 302, I.P.C. and was I} given life sentence.\n\nUnder section 2 of the Supreme Court l Enlargement uf Criminal Appdlate Jarisdiction) Act, !970, this appeal nas been preferred.\n\nIt was lOntended for the appellant that (i) the approver was not a reliable witness; (ii) the approver's statement was not corroborated in material p<1rtkuiars by other evidence connecting the accused with th' rime; and that, in as much as the High Court has, in the appeal by Bhanu l'irakash Singh, acqui'.ted him, on rhe ground that the approver'g evidence was not corroborated in matenal particuJars, the rule of igsue-estoppel should be applied in uppellaut's favou;·.\n\nC Rejecting the contentions.\n\nHELD : (i} and (ii) An approver is a mmt unworthy fiiend, if at <11! and he, having bargained for his immunity, must prove his worthiness for nedibility in court. This test is fulfilled, firstly, if the story lie relates involves him in the crime and appears\n\n111strins1cally IO be a natural and probable catalogue of eve.its that had taken olace.\n\nThe st.ory tf g!ven of minute details according with reality is likely ro D save it from being rejected brevi manu.\n\nSecondly, once that hurdle is crossed, the •tory given by an apJPrOver so tar as the accused on trial ts oncerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a ram case taking into consideration all the facton;, circumstances and situations governing a particular case, conviction bSJSed on the . uncorroborated evidence of an approver confidently held to be true and reliable by the .:ourt may be permissible.\n\nOrdinarily, however, an approver's statement has to be corroborated in material particuJarg bridging closely the distance bet- E ween the crime a.nd the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of oiher independent credible eviden:e, would give the needed assurance for accep'.ance of his testimony on which a conviction may be based.\n\n[459B-H]\n\nJudged by these principleg, the evidence of the approver, while revealing the story, stands amply corroborated by the facts deposed to by the independent\n\nWitnesses m certain material and clinching aspects and c .. mneeling the a1; cused l with the crime. [4600]\n\n\\iii) ln ord•r to invoke the rule of issue-estoppcl not only \\he parties in the two trials must be the rnme but also the fact-in-issue proved ur 110t m the earlier trial must be ideatkal with what is sought to be reagitated in the subsequent trial.\n\n[4610-E]\n\nLalta and Ur~. v. State of Uttar Prade.rh, [l 9691 2 S.C.R. 526 and Tlie King\n\nv. Wilkes, 77 S.L.R. 511 at 518 referred to.\n\nManipur Administration v. Thokclwm Bira Singh [1964] 7 S.C.R. 123 at p. 133, relied On.\n\nIn the present case, the parties are the State and the appellant. In the other case relied upon, the parties were the State and the accused Bhanu Prakash Singh. There is no inconsistency between the finding that the approver's statement there was not materially corroborated by other evidence ai, ainst Bhanu Prakash a11d the contrary rinding i11 the affirmative in the present case against the appellant.\n\n[461E-FJ H\n\nCRIMINAL APPELU•TE JURISDICTION : Crimin.al Appeal No. 156 of 1974.\n\nrom the Judgmen~ and Order d<ttt\"J 12th February, 1974 of the\n\nr~ib & Haryana High Court in Criminal Appeal No. 1055 of\n\nR. K. Garg, S. C. Agarwal and V. J. Francis for the appellant.\n\nH. S. Marwah and R. N. Suchthe.y, for the resp0ndent.\n\nThe Judgment. of the Colirt was delivered by\n\n. GoswAMI, J. On July. 30, 19?~· Bimla, a hale and hearty young girl. ( 19), mdeed, by her nght, leg1t1mate wife of the accused Ravinder Si1!-gh. (23 l, accompanied on a rail journey her husband, ho. after er.ioyrng two months' furlough at home, r.:::unwJ to his Air forcc Station at Sin, a without her and without the !ea~'t concern.\n\nShe was found next morning nearby a wayside distant railway station with acid ?UL:m n her fce and on other parts of the body with multipl~ in- ]tmes, mcapac1tated by the shock and affiliction, to tell her gruesome\n\nstiry tr the few persons who came l>y h.::r.\n\nThe only unchallenged thmg was that she was pronounced dead in a hospital on July 31, 1968, at 8.45 PM.\n\nDid the husband cause the murder of his wife, is for a final judicial solution before us.\n\nThe accused husband being charged under section 302/34, I.P.C., along with some~ others obtained an acquittal from the Ttial Judge.\n\nGovernment'~ c.1nscience was roused and the High Court on the State's appeal entered his convidion under section\n\n302 l.P.C., Shrinking, however, from administering the extreme penalt:r under the law. That is how the liter is before u~ in this appeal as a matter of right under section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act 1970.\n\nThe entire story as given below is revealed 1by a friend of the accused, approver Jasbir lnder Singh (21) (PW 5), who \"'.as arrsted along with the accused on August 13, 1968. Accused Ravmder Smgh and the approver were employed in the Ai~ Force Departm.ent at. Sirsa and were good friends. Bhanu Parkash Smgh, smce acq1; t<ted, 1s the cousin of the accused. Satinder Kumar (11) is the accused's brother.\n\nDaring his stay at Sirsa, when his wife Bimla was not there, the accused developed intimacy with a girl, Balbir Kaur, who \".\"as insisting on marriage which, however, the accused posing to be a bachelor was putting off holding out hopes to her. Both the accused ana the approver took two months' leave, the former to constru.ct his house at village Komri. The accused and the approver with SatiJider Kumar reached Komri on June 3, 1968, when Bimla was in her parents' house. On June 12 or 13, the accused and the approver went to bring her back from her father's house, but on account of a son being born to her brother's wife, a few days earlier, the father-in-law sc1id that he would .send her after some days. This led to some exchange Of hot word~.\n\nHowei.1er, after 7 or 8 days, Bimla returned to 'her husband's home with her.fathe.r and. brother. Lekh Raj Singh (PW 1'8). The accused went in early 'July to see Bhanu Parkash Singh, his cousin, who was employed as Health Visit& at Arnod Dispensary and returned after S\n\nSUPREME COURT REPPRTS\n\n(1975] 31 S.C.R.\n\nor 10 days. The approver was in the accused's house during the\n\nperiOO. The accued ar, ked his wife that she should aee to a divorce, but she would not. The accused used to say that he would finish his wife one day. On July 29, 1968, Bhanu Parkash Sinh came to the accused's house.\n\nOn the same day the approver also returned from Lucknow where he had gone 7 or 8 days back. On July 30, the accused told the approver in the presenec of Bhanu Parka.sh Singh that :he would kill hig wifo that day. Bhanu Parkash Singh replied that he had brought acid with him and it would help in expeditini her &ath.\n\nOn July 30, 1968, the accused, his wife Bimla, the approver, Bhanu\n\nParkash Singh and Satinder Kumar left for Sirsa by train from Sasni Railway Station which is at a distance of four or five miles from Komri.\n\nThe father of the accused came to sec them off at the Railway Station.\n\nThe acq1sed booked a cycle at Sasni Railway Station and purchased two tickets for his wife and Bhanu Parkash Singh, but did not purchase anv ticket for Satinder Kumar. Both the accused and the approver bad Military Railway Warrants for travel.\n\nAfter leavin2 Sasni at 12 Noon, they arrived at Delhi Ra.ilway Station at 6.30 P.M. and chan2ed for Bhatinda Railway Station. They reached Rewari Railway Station at about 10.30 P.M. At Rewari their bogie was attached to the train bound for Sirsa-Bhatinda. When the train left R.ewari at 2.15 AM. on July 31, 1968, there was no other passenger in the compartment except the above five persons. The train stopped for some time at the next Railway Station.\n\nWhen it again started. the acc:used threw his wife Bimla on the floor of the compartment bv catching hold of her bv the neck. When she fell k!own in the compartment the approver caught hold of her by the feet and Bhanu Parkash Singh \"threw acid in her mouth\". Satinder Kumar did not take anv part. The accused removed the pazebs from her feet and gold jhumkas from her ears. The accused threw Bimla from the mnming train in between the first and the snd railway stations beyond Rewari. Some aci(l drops fell on the Hafids of the accused and Bhanu Parkash Singh and on their pants and on the accused's shirt. When the train reached Bhiwani the accused got down for purchasing two tickets for .Bha111ii. Parkash Singh and Satinder Kumar, but the Ticket\n\nCollector, Raghbir Singh (PW 29) detained him and he missed the train. ThrCFt>f tht.tlforesaid company reached Sirsa at 9.00 A.M. on July :n, 1968. When asked about the accus~. the approver told Bansi Lal (PW 25) and Yudhishter Kumar (PW 26) that the accused had missed the train at Bhiwani and would be coming by the next train. lbe accu11ed arrived at Sirsa 'at 1.30 P.M. on July 31. Bhanu ParkOO!t Sin~ lft for Aliv.arh in the evening of Aultllst 1. The accused and the 1lpprover resumed their duties at the Air Force Statii:>n on August 2, 1968.\n\nOn August 3, 1968. the mother ofJhe accused and her nephew, Malklum Singh, came to Sirsa and she told that Bimla hQlf .J>een admittea in the Civil Hospital, Rewari, and suggested thatlbey should register their prescmce in the Air Force Station at Sirsi' ; norder to sa,•e themselves. On August 4, tho accused and the approver went t~ .· t11e\n\nRAVINDER v. HARYANA (Goswami, J.) 457\n\nMedical Assistant at the Air Force Station and the accused showed the burns on his hands and the Medical Assistant (PW 50) made a not• in his register. They decided to leave their house at New Mandi and again started living in the barracks of the Air Force from August 8.\n\nBoth of them were arrested from the Air Force barracks on August 13,\n\n196$. This is as disclose~ by the approver (PW 5).\n\nLet us now turn to tho fate of Bimla thrown from the running train. She was picked up, semi conscious, by Udmi (PW 10) and another person from a railway track between Jatusana and Kosli Railway Stations, and taken to Railway Hospital, Rewari, where Doctor (Miss) K. Dass (PW 3) and Miss V. K. Sharma, Nurse\n\n(PW 2) att1:; nded upon her. She could speak out a little before Miss Sharma, .!!ave her name as Bimla. wife of the accused and daughter of Narain Singh, and indicat~ that she was travelling with her husband by train.\n\nShe was later sent to the Civil Hospital, Rewari, where she was received bv Dr. Manocha (PW 1). She was not in a position to make a statement at the Civil Hospital and she exPired at 8.45 P.M. on July 31, 1968.\n\nPostmortem examination of Bimla disclosed lacerated wounds on the head and multiple abrasions on different parts of the body. Face was disfigured by acil:I burns caused by sulphuric acid. Thero were: other stains on the body which, according to the Doctor, were of sulphuric acid. Cause of death, in his opinion, was due to shock on account of burning caused by sulphuric acid. Sulphuric acid was also found by the Chemical Examiner on jumper, dopatta, and petticoat E in the wearing of the deceased.\n\nThe Additional Sessions Judge disbelieved the approver and also held that his statement was not corroborated in material particulars.\n\nH~' heid that motive was not established nor was the dying declaration proved. The Hi&h Court, however, found that the approver, who was admittedly a friend of the accused, was a reliable witness and his statement did not suffer from any defoct whatsoever. The High Court further held that the approver's statement was corroborated in material particulars by other evidence connectinlil the accused with tho crime.\n\nSince the accused has come in appeal against the judgment of the High Court as a matter of right, wo have heard his learned counsel at length and also examined the evidence with care. We are unable to hold that the !Jigh Court committed any error or injustice in interfering with the acquittal in this case.\n\nThe most important material aspect in the case is with regart:l to the accused accompanying the deceased in the train on July 30, 1968.\n\nThis is not only disclosed by the statement of the approver but . i~ corroborated by evidence aliunde. The very fact that she was found away from her home at a distant place by a wayside railway track: i~ consistent with her travelling in the train on the fattful day. The defence of the accused that ho leff for Delhi on July 29, 1968 and \"my_\n\n-4 58\n\nSUPKEME COURT REPORTS\n\n(1975] 3 S\"C.R.\n\nw1k luilowed me w1tt1 large gold and silver ornaments on her p.rson\n\nanu sne was robboo and blled on the way\" is most unnatural and 1mprooao1e ano cau sare1y be cnaractenseo as raise. 1ne accusect was dnx1ous w bnn£ J.us wire home from her father's house. He war. returnmg to a dmant place by train after enjoying his leave and them was no eartnty reason to leave the young wi1e b..:rnnd to travel alone in the\n\nuam w1t11 gold and silver ornaments'' with attendant risks. lhen agam there is tne evidence of Miss V. K. Sharma (PW 2) to the dJ:ect nat she \"also understood from her (deceased's) talks that she was. procecdmg to Sirsa with her husband\". She is an absolutely independent witness and there is no reason to disbelieve her statement.\n\nShi~ has no ammus against the accused nor can it be accepted that she had been tutored by the police to give evidence in this case against the accused.\n\nThe fact that this information was not recorded in the note Ext. PA/2 would not affoct the veracity of the witness since her comprehension of\n\ntie rleceased's talk wa.s not otherwise challenged. Nothing has been pointed out to show that this witness either had not menti()ned about this fact to the Investigatin& Officer earlier or had stated something inconsistent with the same. Then we have the evidence of Raghbir Singh <PW 29). Ticket C-Ollector, Bhiwani. It appears from his evidence that the accused was detained on July 31, 1968. by him at the Station when he returned from the Booking Office after purchasing\n\n3± tickets which according to the aix:used were necessary for rnme passengers travellin, g in the train. From his evidence it also appears that the accused hali return-journey Railway Warrant. Besides, when money was de.manded from the accused for travelling without tickets of those 3! versons from Sasni to Bhiwani, he gave a writing, Ext. PL dated 31-7-68 to him. This witness.is also an independent witness and has no enmity against the. accused. We have no reason to think thathe will falsely implicate the accused after being tutored by the police, as suggested. Further we have the evidence of Yuklhishter Kumar <PW 26) who states about the approver, Satinder Kumar an; l Bharrn Parkash Singh <; orninJ!: to him at Sirsa on Julv 31 at about 10.30 A.M. without the accused.\n\nHe also stated that the accused came there at about 1.30 P.M. the same day.\n\nIDs evidence, which is not even cha1Jenged. establishes the story about the three persons arriving at Sirsa wit.bout the accux! who had already missed the train at Bhiwani.\n\nThe evidence of Shakti Parshal'.! Ghosh (PW 17), A.S.M., Sasni Railway Station. proves that the accused booked his cycle No. RK- 162872 Make Road King from Sasni to Sirsa on July 30, 1968, as per the forwarding note. Ext. PW 16 /A (original Ext. 17 /A) which fact is J]so proved by PW 16, Surinder Kumar, A.S.M. PW 17 categorically\n\nstates tr.at the accused came to him for booking the cycle and filled in the forwarriing note. It is pointed out that PW 17 did not see the\n\naccusPd at the Railway Station at the arrival of the train as he went to the brake-van direct. It was not at all natural for the witness to follow he movement~ of. the accused after he had b'1oked the cvcle.\n\nThere is. therefore. 11othinit unusual in his not noticing the accuiseci later on the arriv.al of the train.\n\n.RWINDER v. !iAllYANA (Goswami, J.) 459\n\nWe also find from the approver's evidence that the accused went to the Doctor of the Air Force on August 4 to show the bums on his hands. This fact is deposed to by PW 50, Sergeant R. N. Singh, who worked as a Medical _Assistant in the Unit of the First Aid Post at the Air Force Unit Accordin2 to him the accused came to him on August 4. 1968, at about 7 00 AM. an'cl reported that both his hands had acid burns. He also proved the endorsement to that effect in the re_gister (Ext. PT) maintained in the First Aid Post. This fact is not denied by the accused and according to hjm, he had these burns as he. being a storeman. had to deal with batteries an'cl some acid fell om his hands. and that is why he went to PW 50 for treat111ent.\n\nIn his statement in the court recorded on April 25, 1969, after admitting the above facts the accused also asserted that \"there are no marks of acid burns on my hands now\". In cross-examination of Dr. Manocha (PW 1) it was elicited that \"the sqlphuric acid burns if superficial and not infected an'd treated immediately in due course may not leave a mark. otherwise it should leave a mark\". In view of this medical evidence there is no significance attached to the accused not having marks of the iniuries on his hands after about nine months. The injuries due to a few accidental drops may even be superficial. It is significant that PW 50 was not even cross-ex:amined with regard to the burns being caused by acid from batteries. The accuse(l's explanation that the acid !rom the battery caused these burns on his hands is absolutely an after-thought. ·\n\nAn aoprover is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test_ is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable\n\nctalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi m'11JU. Seconlly, once that hurdle is crossed, the story given by a:1 approver so far as the accused on trial is concerned, must impli- 1' -cate h'm in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt.\n\nIn a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confulently held to be true and reliable by the court may be permissible.\n\nOrdinarily, however. an approver\"s statement has to be corroborated\n\nin material particulars bridginl!: closely the distance between the crime and the criminal. . (', ertain clinchin2 features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone ot other independent erodible eVidence, would give the needeld assurance for acceptance of his testimony on which a conviction may be based.\n\nThe approver here ws a constant companion of thi= accused. He was arrested along with the accused on August 13. He was in police custody till August '27 when he was sent to the jail theraftcr.\n\nHi~ wrote throu11h the Jail Superintendent to the Magistrate on August 29\n\nSm'B.EME COURT REPORTS\n\n[1975] 3 :S.C.R.\n\nexpressin2 willi.n&ness to give evidence as \"sultani gawa\" originally A (King's witness). He was then granted conditional pardolli on September 6 and was examined therefater as a prosecution witness.\n\nEvery apprm; er comes to give evidence in some such manner seeking to purchase his immunity and that is why to start with he is an unrdiable person and the rule of caution calling for material corroboration is constilntly kept in mind by the court by time-worn judicial practke.\n\nIgnoring for a moment that PW 5 is an approver, there is nothing in his evidence to show that his statement otherwise is unreliable, unnatural or improbable. There i! nothing to show that he had on any earlier occasion made any contradictory statement on any material point.\n\nIt is true that an approvtr is a person of low morals for the reason that he being a co-participator in the crime has let down his compaiiion. As pointed out above it is for this reason that a rule of caution has 1vown whereby the court has to see if his evidence is corroborated in material particulars connectine; the ac_cuscd with the crime. . . '\n\nJuded by the principles mention above, the evidence of the a.ppr.?\" ver, as already set out, while rev_ealing; the story stanrls amply corrobor~ ted by the facts deposed to by the above independent witnesses in cer- . tain material and clinchin2 aspects connecting the accused with tho c:rime.\n\nTo mention a fel'i', the fact that the accused was accompaniedy the deceased wife is moved by the statement of PW 2, Miss Sharma.\n\nThat the accused got down at Bhiwani Railway Station, missed\"(he. train and. therefore, had to arrive Sirsa later in the afternoon i~ vrrO.,, borated bv PW 26. That the accused came bv train on July 30, 1968 and not on July 29, 1968, is also established by the evidence of PWs\n\n16 and 17. The accused booked his cycle at Sasni Railway Station on July 30, 1968 (vide PWs 16 and 17) and took delivery of the 'same at Sirsa Railway Station of August 1 (vide PW 20). Then again the ac-. cused reported to PW 50 about his acid burqs on both the , bands on August 4, 1968. These are some material aspects in the case having great relevance to th(• crime committed by the accused and am disclcd bv independent an~ reliable witnesses.\n\nIt ,., as not possible for the approver if he had not actually accompanied the accused to make such a detailed statement as he has done, some material paiiS of which find sUPPort from the evidence of the aforesaid witqesses. We arc, therefore, clearly of opinion that the approver's evidence fa not only reliable but the same stankls corroborated in several material parts.\n\nby other reliable cvidc:nce from an independent source. We are also G prepared to believe that the motive for the crime was the illegitimate intimacy with Balbir Kaur.\n\n....\n\nIt wa~ then submitted by the apuellant that in a seParate trial Bhanu ·- Parkash Singh Will! acquitted by the High Court. He also produced - the judgment of that case which was pronounced on the same day as in the present case. The learned counsel for the appellant, however H frankly stated that the High Court acquitted the accused.\n\nBhanu .\n\nParkash Sin~. since the aporover's cviaence Wru! not found to be corroborated i11 caterfat partieutars. That ..cquittat, therefore, cannot\n\nRAVINDER v. HARYANA (Goswami, J.) 461\n\nA at all influence the decision against the present accused when the approver's evidence is amply corroborated in material particulars\n\naginst him.\n\nThe learned counsel for the appellant relied upon the decision o'f this Court in Lalta and Ors. vs. State of Uttar Pradesh (1) to support his submission that on the principle of issue-estoppel conviction of the appellant cannot be sustained because of the cquittl of Bhanu P'arkash Singh, a co-accused, although in a .separate tnal.\n\nThe .crux of the principle of issue-estoppel may be stated in the words of Dixon, J. in The King vs. Wilkes, (2 ) as follows :\n\n. \"Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itselt or as explained by proper evidence, that the same\n\npoint was determined in favour of a prisoner in a prvi.ous criminal trial which is brought in issue on a second cnmmal trial of the same prisoner . . . . . . . . There must e prior proceeding determined against the Crown necessanly mv(}\\Ving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner\".\n\nIn order to invoke the rule of issue-estoppel not only the parties in the two trials must be the same but also the fact:in-issue proved or not in the earlier trial must be identical with what is sought to b: reagitated in the subsequent trial.\n\nIn the present case the parties are tne State and the accused, E Ravinder Sinih. In the other case relied upon, the. parties were the State and the accused Bhanu Parkash Singh. Besides. as even admit- . ted by counsel, the approver was not held to be unreliable in that case. while deciding the case of Bhanu Parkash Singh. There is no incon\n\nsitency b2tween the finding that the approver's statement there was not materially corroborated by other evidence against Bhanu P.irkash Singh and the contrary finding in the affirmative in the present case against F.\n\nRavinder Singh. As has been observed by thi_s P, urt in Manipur Administration vs. Thokchom, Bira Singh,( 3) \"issue-estoppd does not prevent the trial of an offence as does autre fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidenc\\: has eady been led and a specific finding recorded at an .earlier criminal tnal before a court of competent jurisdiction\". There is, therefore.\n\n no substance in the submission of the learned cou.nsel o:i the basis of issue-estoppel in this case. ·\n\nThe Trial Court's reasons for disbelieving the approver did no.tfirtd.·•· . favour with the High Court and rightly so. If the incident deib.ed. , by e ap?rover had .taen. place, as stated. there is nothing improbable or 1mposs1ble about 1t, 1f, 1udged by the standard of a .cool person. the crime could not have been perpetrated in the manner disdosed. It is H evident there was some hatching for the crime and that the opporturtity\n\n\n(2) 77 C.L.R. 511 at 51(\n\n(3) [1964p S.C.R.';123 at'.133\n\n15-423SCI\\75\n\nSUPREME COURT REPORTS\n\n(1975] 3 S.C.R.\n\nto perpetrate it was availed of in the manner done, cannot be dismissed as a fib. The Trial Court disbelieved the evidence of Sampat (P\\V 8) with regard to the dying_ declaration of Bimla implicating her husband.\n\nThe Trial Court also observed that \"there is no doubt in my mind that the story of dying declaration is not genuine\". Even so the Trial Court relying upon the statement of Sampat (PW 8) with regard to the dying declaration observed that \"the stat':ment of tl]e approver, in my opinion, does not seem to be true\". Once the evidence of Sampat has been rejected by the court it should not be made a basis for judging the veracity of other evidence by the yardstick of that unreliable evidence.\n\nThe Trial Court fell into that error.\n\nAgain the reason given by the Tri3.l Court for the rejection of the evidence of the Ticket Collectvr is also tenuous. There is no reason why the Ticket Collector would spin a story of his own if not giwn by the accused, particularly so whc, even according to the. Trial Court, it does not fit in with the number of tickets actually needed for the. journey. This absence of auy attempt at padding of the evidence goes rather to establish the truth of the testimony of the Ticket Collector. The Ticket Collector nniy established the presence of the accused P.t Bhiwani Railway Mation 1:oming by the connecting train for Sirsa-Bhatinda. Because of these patent infirmities in the approach of the case and appreciation oi the eviclcnce, the High Court was right in interfering with the order of acquittal passed by the .Trial Court.\n\nIt is true that in an appeal against acquittal the High Court will b~ slow in interfering with the findings of the Trial Court which has the opportunity to watch the witnesses while giving evidence before it.\n\nThat may be largely true where the Trial Court records remarks about the demeanour of the witnesses. Where, however, the prima facie appreciation of the recorded evidence is opposed to even a reasonable appraisement of the same bearing in mind the relevant point or points sought to be established by the evidence, there will b~ no option to the High Court in the interest of justice to step in to do justice in the case.\n\nThis is exactly what the High Court has clone in the appeal.\n\nWe have considered the case from both the stand-points-whether F the High Court was right in interfering with the acquittal and also whether we would be justified to take the same view as the High Court after examination of tlle evidence afresh. In <:dctition to what we have found above if the accused came in tlle train with his wife on the date in question, about which we have not the slightest d0ubt, his subsequent conduct is a true tell-tale of his guilty mind. We are absolutely I satisfied that the accused has been rightly convicted by the High Court.\n\nG Tn the result the appeal fails and is dismissr<i.\n\nV.M.K.\n\nAppeal dismissed.", "total_entities": 113, "entities": [{"text": "RA VINDER SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "F.\n\nRavinder Singh", "offset_not_found": false}}, {"text": "STATE OF HARYANA", "label": "RESPONDENT", "start_char": 17, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "STATE OF HARYANA", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 54, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 74, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Bimla", "label": "OTHER_PERSON", "start_char": 617, "end_char": 622, "source": "ner", "metadata": {"in_sentence": "The case of the 'prosecution is that the appellant who was married to Bimla was employd in the Air Force Department at Sirsa."}}, {"text": "Sirsa", "label": "GPE", "start_char": 666, "end_char": 671, "source": "ner", "metadata": {"in_sentence": "The case of the 'prosecution is that the appellant who was married to Bimla was employd in the Air Force Department at Sirsa."}}, {"text": "Balbir' Kaur", "label": "WITNESS", "start_char": 765, "end_char": 777, "source": "ner", "metadata": {"in_sentence": "Durina his stay at Sirsa, when his ~1f.e .was not there, he developed intimacy with a aifl, Balbir' Kaur, who was .ms1stin~ on."}}, {"text": "July, 29, 1968", "label": "DATE", "start_char": 1256, "end_char": 1270, "source": "ner", "metadata": {"in_sentence": "On July, 29, 1968, Bhanu Prakash, cousin of the appellant went to the house of the appellant."}}, {"text": "Bhanu Prakash", "label": "OTHER_PERSON", "start_char": 1272, "end_char": 1285, "source": "ner", "metadata": {"in_sentence": "On July, 29, 1968, Bhanu Prakash, cousin of the appellant went to the house of the appellant.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "Lucknow", "label": "GPE", "start_char": 1395, "end_char": 1402, "source": "ner", "metadata": {"in_sentence": "On the same day the approver alsc returned from Lucknow."}}, {"text": "Bhanu Prakash Singh", "label": "OTHER_PERSON", "start_char": 1466, "end_char": 1485, "source": "ner", "metadata": {"in_sentence": "On July 30, the accused told the approver in the presence of Bhanu Prakash Singh.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "July 30, 1969", "label": "DATE", "start_char": 1617, "end_char": 1630, "source": "ner", "metadata": {"in_sentence": "On July 30, 1969, the appellant, his wife Bimla, his brother Satinder Kumar, the approver dnd Bhanu Prakash Singh left for Sirsa bv train from Sasni Rai!wy Station which is at a distance of four or five miles from KOiari."}}, {"text": "Satinder Kumar", "label": "OTHER_PERSON", "start_char": 1675, "end_char": 1689, "source": "ner", "metadata": {"in_sentence": "On July 30, 1969, the appellant, his wife Bimla, his brother Satinder Kumar, the approver dnd Bhanu Prakash Singh left for Sirsa bv train from Sasni Rai!wy Station which is at a distance of four or five miles from KOiari.", "canonical_name": "SatiJider Kumar"}}, {"text": "Sasni Rai!wy", "label": "GPE", "start_char": 1757, "end_char": 1769, "source": "ner", "metadata": {"in_sentence": "On July 30, 1969, the appellant, his wife Bimla, his brother Satinder Kumar, the approver dnd Bhanu Prakash Singh left for Sirsa bv train from Sasni Rai!wy Station which is at a distance of four or five miles from KOiari."}}, {"text": "KOiari", "label": "GPE", "start_char": 1828, "end_char": 1834, "source": "ner", "metadata": {"in_sentence": "On July 30, 1969, the appellant, his wife Bimla, his brother Satinder Kumar, the approver dnd Bhanu Prakash Singh left for Sirsa bv train from Sasni Rai!wy Station which is at a distance of four or five miles from KOiari."}}, {"text": "Sasni", "label": "GPE", "start_char": 1851, "end_char": 1856, "source": "ner", "metadata": {"in_sentence": "After leaving Sasni at 12 Noon, they arrived at Delhi Railway Station at 6.30 P.M. and changed for Bhatinda Railway Station."}}, {"text": "Delhi", "label": "GPE", "start_char": 1885, "end_char": 1890, "source": "ner", "metadata": {"in_sentence": "After leaving Sasni at 12 Noon, they arrived at Delhi Railway Station at 6.30 P.M. and changed for Bhatinda Railway Station."}}, {"text": "Rewari", "label": "GPE", "start_char": 2021, "end_char": 2027, "source": "ner", "metadata": {"in_sentence": "T: y reached Rewari Railway Station at about 10.30 P.M. At Rewari their bogie was attached to the train bound for Srlsa Bhatinda."}}, {"text": "Srlsa Bhatinda", "label": "GPE", "start_char": 2076, "end_char": 2090, "source": "ner", "metadata": {"in_sentence": "T: y reached Rewari Railway Station at about 10.30 P.M. At Rewari their bogie was attached to the train bound for Srlsa Bhatinda."}}, {"text": "Tuly 31, 1968", "label": "DATE", "start_char": 2135, "end_char": 2148, "source": "ner", "metadata": {"in_sentence": "When the train left Rewari at l.15 A.M. on Tuly 31, 1968, there WM no other passenger in the compartment except the above five persons."}}, {"text": "Simla", "label": "OTHER_PERSON", "start_char": 2342, "end_char": 2347, "source": "ner", "metadata": {"in_sentence": "the accused threw his wife :Simla on .the ftoor .if the compartment by catching bold of her by the neck."}}, {"text": "Bhanu", "label": "OTHER_PERSON", "start_char": 2506, "end_char": 2511, "source": "ner", "metadata": {"in_sentence": "When she fell down in the compartment the approver ca\\lght hold of her by the feet and Bhanu , Prakash Singh \"threw acid in her mouth\"."}}, {"text": "Prakash Singh", "label": "RESPONDENT", "start_char": 2514, "end_char": 2527, "source": "ner", "metadata": {"in_sentence": "When she fell down in the compartment the approver ca\\lght hold of her by the feet and Bhanu , Prakash Singh \"threw acid in her mouth\".", "canonical_name": "Prakash Singh"}}, {"text": "Bhiwani", "label": "GPE", "start_char": 2930, "end_char": 2937, "source": "ner", "metadata": {"in_sentence": "When the train reached Bhiwani the accused got down for purchasing two tickets f6r Bhaiiu Pral:ub Singh and tinder Kumar, but the Ticket <;:ol lector, Ragbbir Singh (PW 29) detained hiln and he missed the train."}}, {"text": "Bhaiiu Pral:ub Singh", "label": "OTHER_PERSON", "start_char": 2990, "end_char": 3010, "source": "ner", "metadata": {"in_sentence": "When the train reached Bhiwani the accused got down for purchasing two tickets f6r Bhaiiu Pral:ub Singh and tinder Kumar, but the Ticket <;:ol lector, Ragbbir Singh (PW 29) detained hiln and he missed the train."}}, {"text": "tinder Kumar", "label": "OTHER_PERSON", "start_char": 3015, "end_char": 3027, "source": "ner", "metadata": {"in_sentence": "When the train reached Bhiwani the accused got down for purchasing two tickets f6r Bhaiiu Pral:ub Singh and tinder Kumar, but the Ticket <;:ol lector, Ragbbir Singh (PW 29) detained hiln and he missed the train.", "canonical_name": "SatiJider Kumar"}}, {"text": "Ragbbir Singh", "label": "WITNESS", "start_char": 3058, "end_char": 3071, "source": "ner", "metadata": {"in_sentence": "When the train reached Bhiwani the accused got down for purchasing two tickets f6r Bhaiiu Pral:ub Singh and tinder Kumar, but the Ticket <;:ol lector, Ragbbir Singh (PW 29) detained hiln and he missed the train."}}, {"text": "July 31, 19G8", "label": "DATE", "start_char": 3181, "end_char": 3194, "source": "ner", "metadata": {"in_sentence": "Three of the aforesaili company reached Sirsa at 9.00 A.M. on July 31, 19G8."}}, {"text": "Baosi Lal", "label": "WITNESS", "start_char": 3245, "end_char": 3254, "source": "ner", "metadata": {"in_sentence": "When asked about the accused, the approver told Baosi Lal (PW 25) and Yudhishter Kumar' (PW 26) that the accused had missed the train at Bhiwani and would be coming by the next train."}}, {"text": "Yudhishter Kumar", "label": "WITNESS", "start_char": 3267, "end_char": 3283, "source": "ner", "metadata": {"in_sentence": "When asked about the accused, the approver told Baosi Lal (PW 25) and Yudhishter Kumar' (PW 26) that the accused had missed the train at Bhiwani and would be coming by the next train."}}, {"text": "Bhanu Park:uh Singh", "label": "OTHER_PERSON", "start_char": 3437, "end_char": 3456, "source": "ner", "metadata": {"in_sentence": "Bhanu Park:uh Singh left for Aligarh in the evening ot August 1.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "Aligarh", "label": "GPE", "start_char": 3466, "end_char": 3473, "source": "ner", "metadata": {"in_sentence": "Bhanu Park:uh Singh left for Aligarh in the evening ot August 1."}}, {"text": "August 2. 1968", "label": "DATE", "start_char": 3582, "end_char": 3596, "source": "ner", "metadata": {"in_sentence": "The accused and the approver resumed their duties at the Air Forllll Station on August 2."}}, {"text": "Bimla", "label": "WITNESS", "start_char": 3599, "end_char": 3604, "source": "ner", "metadata": {"in_sentence": "Bimla who had been thirown from the running train waa ricled up, si:mi conscious, by Udmi (J'W 10) and another person from !"}}, {"text": "Udmi", "label": "WITNESS", "start_char": 3684, "end_char": 3688, "source": "ner", "metadata": {"in_sentence": "Bimla who had been thirown from the running train waa ricled up, si:mi conscious, by Udmi (J'W 10) and another person from !"}}, {"text": "K: Dass", "label": "WITNESS", "start_char": 3844, "end_char": 3851, "source": "ner", "metadata": {"in_sentence": "l railway tr.ack betwee!1 Tatusana and Kosli Railway Stations, and taken to Railway HospttGI, Rewan, Where Doctor (Miss) K: Dass (PW 3) and Miss V. K. Sharma, Nurse (PW 2)\n\nSUPREME."}}, {"text": "V. K. Sharma", "label": "WITNESS", "start_char": 3868, "end_char": 3880, "source": "ner", "metadata": {"in_sentence": "l railway tr.ack betwee!1 Tatusana and Kosli Railway Stations, and taken to Railway HospttGI, Rewan, Where Doctor (Miss) K: Dass (PW 3) and Miss V. K. Sharma, Nurse (PW 2)\n\nSUPREME."}}, {"text": "Narain Smi", "label": "OTHER_PERSON", "start_char": 4071, "end_char": 4081, "source": "ner", "metadata": {"in_sentence": "R.\n\nattended upon her: Shi: could speak out a little before Mi•s Sharma, g:ave her A name as B11nla, wife of the accused and daughter of Narain Smi:h, and indicated that she was travelling wiih her hmband by train.", "canonical_name": "Narain Singh"}}, {"text": "Civil\n\nHospital, Rewari", "label": "ORG", "start_char": 4177, "end_char": 4200, "source": "ner", "metadata": {"in_sentence": "She wai; later Sl:nt to 1he Civil\n\nHospital, Rewari, whm: she was received by Dr. Manocha (PW 1)."}}, {"text": "Manocha", "label": "WITNESS", "start_char": 4231, "end_char": 4238, "source": "ner", "metadata": {"in_sentence": "She wai; later Sl:nt to 1he Civil\n\nHospital, Rewari, whm: she was received by Dr. Manocha (PW 1)."}}, {"text": "July 31, 19_68.", "label": "DATE", "start_char": 4349, "end_char": 4364, "source": "ner", "metadata": {"in_sentence": "She was not in a position to ma:k.e a statement at the Civil Ho•p:tal and she expired at g,45 P.M. on July 31, 19_68."}}, {"text": "section 3()", "label": "PROVISION", "start_char": 4408, "end_char": 4419, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4428, "end_char": 4433, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 302", "label": "PROVISION", "start_char": 4572, "end_char": 4583, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4585, "end_char": 4590, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 2", "label": "PROVISION", "start_char": 4631, "end_char": 4640, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Supreme Court l Enlargement uf Criminal Appdlate Jarisdiction) Act, !", "label": "COURT", "start_char": 4648, "end_char": 4717, "source": "ner", "metadata": {"in_sentence": "Under section 2 of the Supreme Court l Enlargement uf Criminal Appdlate Jarisdiction) Act, !"}}, {"text": "Bhanu l'irakash Singh", "label": "OTHER_PERSON", "start_char": 5032, "end_char": 5053, "source": "ner", "metadata": {"in_sentence": "It was lOntended for the appellant that (i) the approver was not a reliable witness; (ii) the approver's statement was not corroborated in material p<1rtkuiars by other evidence connecting the accused with th' rime; and that, in as much as the High Court has, in the appeal by Bhanu l'irakash Singh, acqui'.ted him, on rhe ground that the approver'g evidence was not corroborated in matenal particuJars, the rule of igsue-estoppel should be applied in uppellaut's favou;·.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "[1964] 7 S.C.R. 123", "label": "CASE_CITATION", "start_char": 7344, "end_char": 7363, "source": "regex", "metadata": {}}, {"text": "Bhanu Prakash", "label": "WITNESS", "start_char": 7690, "end_char": 7703, "source": "ner", "metadata": {"in_sentence": "There is no inconsistency between the finding that the approver's statement there was not materially corroborated by other evidence ai, ainst Bhanu Prakash a11d the contrary rinding i11 the affirmative in the present case against the appellant."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 7996, "end_char": 8006, "source": "ner", "metadata": {"in_sentence": "1055 of\n\nR. K. Garg, S. C. Agarwal and V. J. Francis for the appellant."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 8008, "end_char": 8021, "source": "ner", "metadata": {"in_sentence": "1055 of\n\nR. K. Garg, S. C. Agarwal and V. J. Francis for the appellant."}}, {"text": "V. J. Francis", "label": "LAWYER", "start_char": 8026, "end_char": 8039, "source": "ner", "metadata": {"in_sentence": "1055 of\n\nR. K. Garg, S. C. Agarwal and V. J. Francis for the appellant."}}, {"text": "H. S. Marwah", "label": "JUDGE", "start_char": 8060, "end_char": 8072, "source": "ner", "metadata": {"in_sentence": "H. S. Marwah and R. N. Suchthe.y, for the resp0ndent."}}, {"text": "R. N. Suchthe.y", "label": "LAWYER", "start_char": 8077, "end_char": 8092, "source": "ner", "metadata": {"in_sentence": "H. S. Marwah and R. N. Suchthe.y, for the resp0ndent."}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 8163, "end_char": 8170, "source": "ner", "metadata": {"in_sentence": "GoswAMI, J. On July."}}, {"text": "Ravinder Si1!-gh", "label": "OTHER_PERSON", "start_char": 8289, "end_char": 8305, "source": "ner", "metadata": {"in_sentence": "19), mdeed, by her nght, leg1t1mate wife of the accused Ravinder Si1!-gh. ("}}, {"text": "July 31, 1968", "label": "DATE", "start_char": 8835, "end_char": 8848, "source": "ner", "metadata": {"in_sentence": "The only unchallenged thmg was that she was pronounced dead in a hospital on July 31, 1968, at 8.45 PM."}}, {"text": "section 302", "label": "PROVISION", "start_char": 8994, "end_char": 9005, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9010, "end_char": 9015, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section\n\n302", "label": "PROVISION", "start_char": 9192, "end_char": 9204, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 2", "label": "PROVISION", "start_char": 9365, "end_char": 9374, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act", "label": "STATUTE", "start_char": 9382, "end_char": 9448, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Jasbir lnder Singh", "label": "WITNESS", "start_char": 9538, "end_char": 9556, "source": "ner", "metadata": {"in_sentence": "The entire story as given below is revealed 1by a friend of the accused, approver Jasbir lnder Singh (21) (PW 5), who \"'.as arrsted along with the accused on August 13, 1968."}}, {"text": "August 13, 1968", "label": "DATE", "start_char": 9614, "end_char": 9629, "source": "ner", "metadata": {"in_sentence": "The entire story as given below is revealed 1by a friend of the accused, approver Jasbir lnder Singh (21) (PW 5), who \"'.as arrsted along with the accused on August 13, 1968."}}, {"text": "Ravmder Smgh", "label": "OTHER_PERSON", "start_char": 9639, "end_char": 9651, "source": "ner", "metadata": {"in_sentence": "Accused Ravmder Smgh and the approver were employed in the Ai~ Force Departm.ent at."}}, {"text": "Bhanu Parkash Smgh", "label": "OTHER_PERSON", "start_char": 9745, "end_char": 9763, "source": "ner", "metadata": {"in_sentence": "Bhanu Parkash Smgh, smce acq1; t<ted, 1s the cousin of the accused.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "Balbir Kaur", "label": "OTHER_PERSON", "start_char": 9965, "end_char": 9976, "source": "ner", "metadata": {"in_sentence": "Daring his stay at Sirsa, when his wife Bimla was not there, the accused developed intimacy with a girl, Balbir Kaur, who \".\"as insisting on marriage which, however, the accused posing to be a bachelor was putting off holding out hopes to her."}}, {"text": "Komri", "label": "GPE", "start_char": 10208, "end_char": 10213, "source": "ner", "metadata": {"in_sentence": "Both the accused ana the approver took two months' leave, the former to constru.ct his house at village Komri."}}, {"text": "SatiJider Kumar", "label": "OTHER_PERSON", "start_char": 10249, "end_char": 10264, "source": "ner", "metadata": {"in_sentence": "The accused and the approver with SatiJider Kumar reached Komri on June 3, 1968, when Bimla was in her parents' house.", "canonical_name": "SatiJider Kumar"}}, {"text": "June 3, 1968", "label": "DATE", "start_char": 10282, "end_char": 10294, "source": "ner", "metadata": {"in_sentence": "The accused and the approver with SatiJider Kumar reached Komri on June 3, 1968, when Bimla was in her parents' house."}}, {"text": "June 12 or 13", "label": "DATE", "start_char": 10337, "end_char": 10350, "source": "ner", "metadata": {"in_sentence": "On June 12 or 13, the accused and the approver went to bring her back from her father's house, but on account of a son being born to her brother's wife, a few days earlier, the father-in-law sc1id that he would .send her after some days."}}, {"text": "Lekh Raj Singh", "label": "WITNESS", "start_char": 10712, "end_char": 10726, "source": "ner", "metadata": {"in_sentence": "Lekh Raj Singh (PW 1'8)."}}, {"text": "Bhanu Parkash Singh", "label": "OTHER_PERSON", "start_char": 10776, "end_char": 10795, "source": "ner", "metadata": {"in_sentence": "The accused went in early 'July to see Bhanu Parkash Singh, his cousin, who was employed as Health Visit& at Arnod Dispensary and returned after S\n\nSUPREME COURT REPPRTS\n\n(1975] 31 S.C.R.\n\nor 10 days.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "Arnod Dispensary", "label": "ORG", "start_char": 10846, "end_char": 10862, "source": "ner", "metadata": {"in_sentence": "The accused went in early 'July to see Bhanu Parkash Singh, his cousin, who was employed as Health Visit& at Arnod Dispensary and returned after S\n\nSUPREME COURT REPPRTS\n\n(1975] 31 S.C.R.\n\nor 10 days."}}, {"text": "July 29, 1968", "label": "DATE", "start_char": 11145, "end_char": 11158, "source": "ner", "metadata": {"in_sentence": "On July 29, 1968, Bhanu Parkash Sinh came to the accused's house."}}, {"text": "Bhanu Parkash Sinh", "label": "OTHER_PERSON", "start_char": 11160, "end_char": 11178, "source": "ner", "metadata": {"in_sentence": "On July 29, 1968, Bhanu Parkash Sinh came to the accused's house.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "Bhanu Parka.sh Singh", "label": "OTHER_PERSON", "start_char": 11362, "end_char": 11382, "source": "ner", "metadata": {"in_sentence": "On July 30, the accused told the approver in the presenec of Bhanu Parka.sh Singh that :he would kill hig wifo that day.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "July 30, 1968", "label": "DATE", "start_char": 11530, "end_char": 11543, "source": "ner", "metadata": {"in_sentence": "On July 30, 1968, the accused, his wife Bimla, the approver, Bhanu\n\nParkash Singh and Satinder Kumar left for Sirsa by train from Sasni Railway Station which is at a distance of four or five miles from Komri."}}, {"text": "Bhanu\n\nParkash Singh", "label": "OTHER_PERSON", "start_char": 11588, "end_char": 11608, "source": "ner", "metadata": {"in_sentence": "On July 30, 1968, the accused, his wife Bimla, the approver, Bhanu\n\nParkash Singh and Satinder Kumar left for Sirsa by train from Sasni Railway Station which is at a distance of four or five miles from Komri.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "R.ewari", "label": "GPE", "start_char": 12330, "end_char": 12337, "source": "ner", "metadata": {"in_sentence": "When the train left R.ewari at 2.15 AM."}}, {"text": "Parkash Singh", "label": "RESPONDENT", "start_char": 13211, "end_char": 13224, "source": "ner", "metadata": {"in_sentence": "Parkash Singh and Satinder Kumar, but the Ticket\n\nCollector, Raghbir Singh (PW 29) detained him and he missed the train.", "canonical_name": "Prakash Singh"}}, {"text": "Raghbir Singh", "label": "WITNESS", "start_char": 13272, "end_char": 13285, "source": "ner", "metadata": {"in_sentence": "Parkash Singh and Satinder Kumar, but the Ticket\n\nCollector, Raghbir Singh (PW 29) detained him and he missed the train."}}, {"text": "Bansi Lal", "label": "WITNESS", "start_char": 13456, "end_char": 13465, "source": "ner", "metadata": {"in_sentence": "When asked about the accus~. the approver told Bansi Lal (PW 25) and Yudhishter Kumar (PW 26) that the accused had missed the train at Bhiwani and would be coming by the next train."}}, {"text": "Bhanu ParkOO!t Sin~ lft for Aliv.arh in the evening of Aultllst 1. The accused and the 1lpprover resumed their duties at the Air Force Statii:>n on August 2, 1968.\n\nOn August 3, 1968. the mother ofJhe accused and her nephew, Malklum Singh", "label": "OTHER_PERSON", "start_char": 13647, "end_char": 13885, "source": "ner", "metadata": {"in_sentence": "Bhanu ParkOO!t Sin~ lft for Aliv.arh in the evening of Aultllst 1."}}, {"text": "August 13,\n\n196$.", "label": "DATE", "start_char": 14525, "end_char": 14542, "source": "ner", "metadata": {"in_sentence": "Both of them were arrested from the Air Force barracks on August 13,\n\n196$. This is as disclose~ by the approver (PW 5)."}}, {"text": "Railway Hospital, Rewari", "label": "ORG", "start_char": 14806, "end_char": 14830, "source": "ner", "metadata": {"in_sentence": "She was picked up, semi conscious, by Udmi (PW 10) and another person from a railway track between Jatusana and Kosli Railway Stations, and taken to Railway Hospital, Rewari, where Doctor (Miss) K. Dass (PW 3) and Miss V. K. Sharma, Nurse\n\n(PW 2) att1:; nded upon her."}}, {"text": "K. Dass", "label": "WITNESS", "start_char": 14852, "end_char": 14859, "source": "ner", "metadata": {"in_sentence": "She was picked up, semi conscious, by Udmi (PW 10) and another person from a railway track between Jatusana and Kosli Railway Stations, and taken to Railway Hospital, Rewari, where Doctor (Miss) K. Dass (PW 3) and Miss V. K. Sharma, Nurse\n\n(PW 2) att1:; nded upon her."}}, {"text": "Sharma", "label": "OTHER_PERSON", "start_char": 14967, "end_char": 14973, "source": "ner", "metadata": {"in_sentence": "She could speak out a little before Miss Sharma, .!!ave her name as Bimla."}}, {"text": "Narain Singh", "label": "OTHER_PERSON", "start_char": 15037, "end_char": 15049, "source": "ner", "metadata": {"in_sentence": "wife of the accused and daughter of Narain Singh, and indicat~ that she was travelling with her husband by train.", "canonical_name": "Narain Singh"}}, {"text": "Civil Hospital, Rewari", "label": "ORG", "start_char": 15142, "end_char": 15164, "source": "ner", "metadata": {"in_sentence": "She was later sent to the Civil Hospital, Rewari, where she was received bv Dr. Manocha (PW 1)."}}, {"text": "Sirsa", "label": "OTHER_PERSON", "start_char": 17846, "end_char": 17851, "source": "ner", "metadata": {"in_sentence": "procecdmg to Sirsa with her husband\"."}}, {"text": "31-7-68", "label": "DATE", "start_char": 19088, "end_char": 19095, "source": "ner", "metadata": {"in_sentence": "PL dated 31-7-68 to him."}}, {"text": "Yuklhishter Kumar", "label": "WITNESS", "start_char": 19338, "end_char": 19355, "source": "ner", "metadata": {"in_sentence": "Further we have the evidence of Yuklhishter Kumar <PW 26) who states about the approver, Satinder Kumar an; l Bharrn Parkash Singh <; orninJ!:"}}, {"text": "Bharrn Parkash Singh", "label": "OTHER_PERSON", "start_char": 19416, "end_char": 19436, "source": "ner", "metadata": {"in_sentence": "Further we have the evidence of Yuklhishter Kumar <PW 26) who states about the approver, Satinder Kumar an; l Bharrn Parkash Singh <; orninJ!:", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "Shakti Parshal'", "label": "WITNESS", "start_char": 19785, "end_char": 19800, "source": "ner", "metadata": {"in_sentence": "The evidence of Shakti Parshal'.!"}}, {"text": "Surinder Kumar", "label": "WITNESS", "start_char": 20058, "end_char": 20072, "source": "ner", "metadata": {"in_sentence": "17 /A) which fact is J]so proved by PW 16, Surinder Kumar, A.S.M. PW 17 categorically\n\nstates tr.at the accused came to him for booking the cycle and filled in the forwarriing note."}}, {"text": "R. N. Singh", "label": "WITNESS", "start_char": 20784, "end_char": 20795, "source": "ner", "metadata": {"in_sentence": "This fact is deposed to by PW 50, Sergeant R. N. Singh, who worked as a Medical Assistant in the Unit of the First Aid Post at the Air Force Unit Accordin2 to him the accused came to him on August 4."}}, {"text": "August 4. 1968", "label": "DATE", "start_char": 20932, "end_char": 20946, "source": "ner", "metadata": {"in_sentence": "This fact is deposed to by PW 50, Sergeant R. N. Singh, who worked as a Medical Assistant in the Unit of the First Aid Post at the Air Force Unit Accordin2 to him the accused came to him on August 4."}}, {"text": "April 25, 1969", "label": "DATE", "start_char": 21384, "end_char": 21398, "source": "ner", "metadata": {"in_sentence": "In his statement in the court recorded on April 25, 1969, after admitting the above facts the accused also asserted that \"there are no marks of acid burns on my hands now\"."}}, {"text": "Sharma", "label": "WITNESS", "start_char": 25399, "end_char": 25405, "source": "ner", "metadata": {"in_sentence": "To mention a fel'i', the fact that the accused was accompaniedy the deceased wife is moved by the statement of PW 2, Miss Sharma."}}, {"text": "August 4, 1968", "label": "DATE", "start_char": 25959, "end_char": 25973, "source": "ner", "metadata": {"in_sentence": "cused reported to PW 50 about his acid burqs on both the , bands on August 4, 1968."}}, {"text": "Bhanu ·- Parkash Singh", "label": "OTHER_PERSON", "start_char": 26750, "end_char": 26772, "source": "ner", "metadata": {"in_sentence": "....\n\nIt wa~ then submitted by the apuellant that in a seParate trial Bhanu ·- Parkash Singh Will!", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "Parkash Sin~.", "label": "RESPONDENT", "start_char": 27031, "end_char": 27044, "source": "ner", "metadata": {"in_sentence": "Parkash Sin~. since the aporover's cviaence Wru!", "canonical_name": "Prakash Singh"}}, {"text": "Bhanu P'arkash Singh", "label": "OTHER_PERSON", "start_char": 27626, "end_char": 27646, "source": "ner", "metadata": {"in_sentence": "vs. State of Uttar Pradesh (1) to support his submission that on the principle of issue-estoppel conviction of the appellant cannot be sustained because of the cquittl of Bhanu P'arkash Singh, a co-accused, although in a .separate tnal.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "E Ravinder Sinih", "label": "OTHER_PERSON", "start_char": 28710, "end_char": 28726, "source": "ner", "metadata": {"in_sentence": "In the present case the parties are tne State and the accused, E Ravinder Sinih."}}, {"text": "Bhanu P.irkash Singh", "label": "OTHER_PERSON", "start_char": 29112, "end_char": 29132, "source": "ner", "metadata": {"in_sentence": "There is no incon\n\nsitency b2tween the finding that the approver's statement there was not materially corroborated by other evidence against Bhanu P.irkash Singh and the contrary finding in the affirmative in the present case against F.\n\nRavinder Singh.", "canonical_name": "Bhanu ·- Parkash Singh"}}, {"text": "F.\n\nRavinder Singh", "label": "PETITIONER", "start_char": 29205, "end_char": 29223, "source": "ner", "metadata": {"in_sentence": "There is no incon\n\nsitency b2tween the finding that the approver's statement there was not materially corroborated by other evidence against Bhanu P.irkash Singh and the contrary finding in the affirmative in the present case against F.\n\nRavinder Singh.", "canonical_name": "F.\n\nRavinder Singh"}}, {"text": "Sampat", "label": "WITNESS", "start_char": 30412, "end_char": 30418, "source": "ner", "metadata": {"in_sentence": "The Trial Court disbelieved the evidence of Sampat (P\\V 8) with regard to the dying_ declaration of Bimla implicating her husband."}}, {"text": "Sampat", "label": "OTHER_PERSON", "start_char": 30834, "end_char": 30840, "source": "ner", "metadata": {"in_sentence": "Once the evidence of Sampat has been rejected by the court it should not be made a basis for judging the veracity of other evidence by the yardstick of that unreliable evidence."}}, {"text": "P.t Bhiwani Railway", "label": "ORG", "start_char": 31586, "end_char": 31605, "source": "ner", "metadata": {"in_sentence": "The Ticket Collector nniy established the presence of the accused P.t Bhiwani Railway Mation 1:oming by the connecting train for Sirsa-Bhatinda."}}, {"text": "Sirsa-Bhatinda", "label": "GPE", "start_char": 31649, "end_char": 31663, "source": "ner", "metadata": {"in_sentence": "The Ticket Collector nniy established the presence of the accused P.t Bhiwani Railway Mation 1:oming by the connecting train for Sirsa-Bhatinda."}}, {"text": "V.M.K.", "label": "PETITIONER", "start_char": 33172, "end_char": 33178, "source": "ner", "metadata": {"in_sentence": "G Tn the result the appeal fails and is dismissr<i.\n\nV.M.K.\n\nAppeal dismissed."}}]}
{"document_id": "1975_3_463_466_EN", "year": 1975, "text": "SANTO SH\n\nTHE STATE OF MADHYA PRADESH\n\nFebruafly 7, 1975\n\n[M. H. BEG AND A. ALAGIRISWAMI, JJ.J\n\nIndian Pe11al Code Section 302/149-Common objecr-Concurrent (t•1dings of fac.t-Vicario11s liability of members of an 1111!awf11/ asembly.\n\n118 persons were prosecuted for participation in a serious riot. 5 acused were. discharged by the Committing Magistrate. The Additional Sessions Judge acquitted 61 accused and convicted 52 ur.der section 147 and sentenced them to 2 years' rigorous imprisonment. The appellant was held guilty under section 304p) read with 149. and sentenced to 5 years rigorous imprisonment, under sectlon 325 /149 sentenced. to 2 years rigorous impri; omnent and under section 323/149 sentenced to a month's rigorous imprisonment.\n\nThe convicted persons and the State filed appeal~ l)efore the High Court.\n\nThe High Court convicted 14 persons including the appellant and altered his conviction under section 304/1/149 into 302/149 for the murder of 3 persons and sentenced the appellant to life imprisonment.\n\nThe Learned Counsel for the appellant before this Court contended that the appellant did not participate in the riot.\n\nHELD : This Court is unable to disturb the concurTcnt findings of the two courts below about appellant's participation in the riot. The High Court however, was wrong in holding that the common object of the unlawful :mcmbly was necessarily to cause death of three individuals. In a case like the present there were two factions; one of the oppressors :rnd the other of the oppressed, and the i11te1tion of members of the oppressed faction could be initially, to demonstrate quite lawfully.\n\nThe circumstances , ho•ved that the appellant's intention may have been confined to joining a procession for purposes of protest. If it is doubtful that the common object uf ti1e unlawful assembly was to cause death, persons other than those who actually cominitted the acts resulting in death could not be held vicariously liable for murder.\n\n[464F-G; 564H-\n\n466D] .\n\n[The judgment of the High Court as far as appellant is concerned was set aside and that of the Sessions Court restored.]\n\n[ 446G]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 22 of 1971. (Appeal by Special Leave from the Judgment & Order dated the 30th March, 1970 of the Madhya Pradesh High Court in Criminal Appeal No. 536 of 1 %6).\n\nP. P. Juneja for the appllant.\n\nRam P1mjwa!!i and H. S. Parihar, for the respondent.\n\nThe Judgment of the Court was dctivcred by\n\nBEG, J.\n\nThis is an appeal by special leave by one out of 118 persons wb') were prosecuted for participation in a serious riot on Augu>t l, 1965; in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pm· c1csh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them.\n\nFive •accused persons were discharged by the Committing Magistrate.\n\nOne hundred and thirteen persons were jointly tried for various offences punishable under Sections 147, 148, 302, 307, 325 and 323 Indian Penal Code.\n\nCharges were also alternatively framed under Section\n\n302/149, 307/~49, 323/149 an~ 325/149 a¥ainst ~11 of them.\n\nAn Additional Sess10ns' Judge of Bilaspur acquitted sixty one accused persons and convicted fifty two persons. He found all the conv~ted persons guilty under Section 147 .P.C. and senrenced them to two years rigorous imprisonment.\n\nWe need only mention the other convictions of the appellant before us. He was held guilty under Section 304(1 )/149 IPC and se.ntenced to five years rigorous imprisonrt1ent and under Section 325/149 IPC and sentenced to t\"'.o.lears rigoi:dus impriSj)nment, and under Section 323/149 IPC and sentenced t1) a month's rigorous imprisonment.\n\nOn appeals by the convicted persons as well as by the State Government, the High Court, while convicting only fourten persons, including the appellant, altered his conviction under section 304(1) /149 IPC into three convictions under Section 302/149 for the murder of three persons Badlu, Santu, Chhote Bhurwa, but it m•ade the :; entences of life impriso•ament concurrent for the three offences. It m.t1intained the other convictions and sentences passed by the learned Ses- :; ions' Judge.\n\nlearned Counsel for the appellant has tried to advance some arguments to assail the conviction of the appellant for participation in rioting.\n\nBut, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7. The unshaken evidence of these witnesses had established that the appellant had participated in the riot, and chased the victims, and even inflicted some minor injuiries on Baliram, PW 1.\n\nBut, beyond that, the participation of the appellant in the actual acts of cutting the limbs of the three persons, who eventually died of profuse bleeding, was not deposed to by any prosecution witness.\n\nAlthough we are un:able to disturb the concurrent finding of the fact by the Trial Court and the High Court of the participation of the appellant in the serious riot which took place on 1-8-1965 in village Ganiari, we are alsn unable to concur with the view of the High Court that o'.1 facts established, the common object of the unlawful assemblv was necessarily to cause the death of the three individuals who, unfortunately, lost their lives as a result of the out-burse of frenzy of •an outraged mob against persons who, according to the. learned Sessions' Judge, had given cuse to the villagers to be seriously displeased with their nefarious activities. ·\n\n !he learned Sess; ioas' Judge, while convicting the -appellant under Sect::m 304 (l), had obs1rved : . ·\n\n\"I . am inclined to take a lenient view of these klilings ' because the persons killed had become a nuisance to the ·'!lage community \\Uid their crirrrtnal acts. knew oo houoo~ or rationaliy. A titne omes when even an orde!1y society' H Tl?volts findr.ig no rellef m the regqlar course.\n\nThougli such 2:; t; rrr;: riot permissible even in such cases and ranno1' be\n\nc,~.:, uragi?d yet due discrmfrmtion was not lost sightof bt\n\nSANTOSH v. M. P. STATE (Beg, J.) 465\n\nA the assailants and severe. penalty is thus not called for in the present case.' We do not consider these reasons of the learned Sessions Judge, who had given them for convicting the appdlant togethel\" with other accused persons under Section 304 (I)/ 149 IPC and sentencing them to five years' rigorous imprisoo,1ment, to be at all sound or relevant in B justifying •a conviction under Section 304(1) /149 IPC. The learned Sessions' Judge had relied upon Kapur Singh v. State of Pepsu('), to hold that, as injuries were inflicted upon the limbs of the three men, who die4\"of bleeding, but infliction of injuries on vital parts of the body \\\"\\'.~.s d6ilberately avoided, an intention of anybody to murder was not established.\n\nThe learned Session's Judge appears to have overlooked the vadous clauses of Section 300 IPC.\n\nAn inten- C . tion to kill is not required in every case.\n\nA knowledge that the natural and probable consequences of an act would be death will suffice for a conviction under Section 302 IPC.\n\nThe question on whifb we entertain serious doubts, after examin- . ing the natur~ of \"the case 'and the relevant evidence on record is whether the killing {)f -.arty\" of the three men who died was within the common dbject of the large number of persons who took part in the riot in D , various wys in a fairly wide-spread area. It may well be that those who actuall.y Inflicted the injuries on the three men who died could be . held Jiable for, causing death in a particularly cruel manner.\n\nTh~ question, nevertheless, remains whether each of the large , number of other .: foters in the village, who took part in various ways in what appeared \"to be an , ipsqpge of r; esentmlcnt and hostility against a party three of ... which lost-' their lives,'..:.shared the common object to kill thm or to E .'do acts w])ose: natural and probable results would be their 'deaths.\n\nA refornce made to Chikkarange Gowda & Ors. v. State of Mysoree), would show that each member of a mob needLnot bi:, neces- ' -sarily be lieldfliable for the actions of every other meinber of that: mob .\n\n.-It may be. easier; in some respects, to prove a cominon 'eJ' as a ' basis for a iri?us lia?il!ty under Setion _149 I.PC,' than t'O. f'Stblish F :: a common 1htent10n w1thm the meaning of Sect10n 34 IPC .. -' Nevertheless, as was 'Pointed out by this Coµrf in Chikkarange Gowda's case (supra)~ the princ;:iplc h.as. been well r~_cogn.· ised, since the decision\n\nin 1873 'in Queen v. Sabed Ali (3), that ey offence which may be committed by a merriber of an unlawful assembly will not be necessarily asceribed to or vicariously fastened upon every other member\n\nthat assembly by using Section 149 IPC. The likelihood of causing G of_ death by the nature of the actions of the members of the assembly must be, sho\\S{t! to be within the knowledge of a member who is to be . made vicariously' liable for a death.\n\nSuch knowledge may be inferred from the nature of the actions committed by others in ap unlawful assembly Which the memb_er held vicariously liable continues to associate himself with ;; Iespite 'these actions seen by him or knowii to him,\n\nIn a case sucHs the one before us, in which there were two fac- H tions in a village, one ofhe oppressors and the other of the 0ppr<:ssed,\n\n(I) AIR 1956 S.C. 654.\n\n(2) AIR 1956 S.C. 73t.\n\n(3) 20 Sut. W .. R. (Cr.) 5 (A).\n\nsmarting under the pain of injuries i_nflicted by their oppressors, the inte1ltion of a member of an assembly could be initially quite lawful.\n\nHis object may not go beyond joining a procession for purposes of protest.\n\nWe are convinced, on the evidence on record, that the participation of the appellant before us went beyond exhibiting a mere intention to protest. It not only embraced knowledge of likelihood of hurt of some kind to members of the party attacked, but it includd an attack by the appellant on Baliram, PW 1.\n\nThe nature of that attack was, however. relatively mild.\n\nAt most, from the concerted action of so 'many men a member of the unlawful assembly, on th('. facts and circumstances of the case before us, could be reasonably held to be aware that grievous hurt would result.\n\nAfter examining all the evidnce relating to the participation of the appellant and others in the riot we are left in grave doubt whe- . ther the assembly had a common object of killing any one at all, even if such was really the object of any particular member or members of the unlawful assembly.\n\nIt may be that those who cut the limbs of men who lost their lives due to bleeding could reasonably be held liable for murder.\n\nBut, it seems to be unlikely that each member, considering the nature of the riot and the different acts of different members of the riotous assembly, had such an object.\n\nThis was exactly the view adopted by this Court in Chikkarange Gowda's case (supra).\n\nAs we are doubtful whether the appellant could be held guilty of participation in an unlawful assembly which had the common object of kiiling or even maiming the three men who lost their lives, we think that the appellant could not be convicted under Section 302/149 IPC.\n\nWe also think that the learned Sessions' Judge was in error in holding that th.~ appellant could be convicted under Section 304(1) /149 IPC.\n\nFor a conviction under Section 304( 1) IPC., it has to be shown that the case of the convicted person falls within one of the five Exceptions found in Section 300 IPC.\n\nIt is obvious that the case of the appellant does not fall under any of these Exceptions. If it is doubtful whether the com111on object of the unlawful assembly joined by the appellant was to commit any acts which were either intended\n\nto cause death, or, froin which knowledg:c of likelihood of death could be inferred, we think that persons othetthan those who actually committed the cts resulting in death could not be held vicariously liable for murder.\n\nThe result is that we allow this appeal to the extent that we set aside the convictions and sentences of the appellant under Section\n\n3C.2/149 IPC.\n\nWe maintained his convictions and sentences under Section 147, 323/149 and 325/149 IPC.\n\nSubject to the modification indicated here this appeal is dismiss.ed.\n\nWe understand that the appellant has already undergone imprisunment longer than the longest one imposed for the convictions sustained by us.\n\nWe therefore, ctirect that he be released forthwith unless wanted in some other connection.\n\nPH.P.\n\nAgpea/ allowed.", "total_entities": 64, "entities": [{"text": "SH\n\nTHE STATE OF MADHYA PRADESH", "label": "RESPONDENT", "start_char": 6, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 59, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI, JJ", "label": "JUDGE", "start_char": 73, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "Section 302", "label": "PROVISION", "start_char": 115, "end_char": 126, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147", "label": "PROVISION", "start_char": 431, "end_char": 442, "source": "regex", "metadata": {"statute": null}}, {"text": "section 304", "label": "PROVISION", "start_char": 533, "end_char": 544, "source": "regex", "metadata": {"statute": null}}, {"text": "section 323", "label": "PROVISION", "start_char": 688, "end_char": 699, "source": "regex", "metadata": {"statute": null}}, {"text": "section 304", "label": "PROVISION", "start_char": 919, "end_char": 930, "source": "regex", "metadata": {"statute": null}}, {"text": "P. P. Juneja", "label": "OTHER_PERSON", "start_char": 2354, "end_char": 2366, "source": "ner", "metadata": {"in_sentence": "P. P. Juneja for the appllant."}}, {"text": "Ram P1mjwa!!i", "label": "LAWYER", "start_char": 2386, "end_char": 2399, "source": "ner", "metadata": {"in_sentence": "Ram P1mjwa!!i and H. S. Parihar, for the respondent."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 2404, "end_char": 2417, "source": "ner", "metadata": {"in_sentence": "Ram P1mjwa!!i and H. S. Parihar, for the respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 2484, "end_char": 2487, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was dctivcred by\n\nBEG, J.\n\nThis is an appeal by special leave by one out of 118 persons wb') were prosecuted for participation in a serious riot on Augu>t l, 1965; in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pm· c1csh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them."}}, {"text": "l, 1965", "label": "DATE", "start_char": 2621, "end_char": 2628, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was dctivcred by\n\nBEG, J.\n\nThis is an appeal by special leave by one out of 118 persons wb') were prosecuted for participation in a serious riot on Augu>t l, 1965; in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pm· c1csh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them."}}, {"text": "Ganiari", "label": "GPE", "start_char": 2641, "end_char": 2648, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was dctivcred by\n\nBEG, J.\n\nThis is an appeal by special leave by one out of 118 persons wb') were prosecuted for participation in a serious riot on Augu>t l, 1965; in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pm· c1csh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them."}}, {"text": "Bilaspur", "label": "GPE", "start_char": 2657, "end_char": 2665, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was dctivcred by\n\nBEG, J.\n\nThis is an appeal by special leave by one out of 118 persons wb') were prosecuted for participation in a serious riot on Augu>t l, 1965; in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pm· c1csh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them."}}, {"text": "Madhya", "label": "GPE", "start_char": 2683, "end_char": 2689, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was dctivcred by\n\nBEG, J.\n\nThis is an appeal by special leave by one out of 118 persons wb') were prosecuted for participation in a serious riot on Augu>t l, 1965; in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pm· c1csh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them."}}, {"text": "Sections 147, 148, 302, 307, 325 and 323", "label": "PROVISION", "start_char": 2989, "end_char": 3029, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3030, "end_char": 3047, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section\n\n302", "label": "PROVISION", "start_char": 3095, "end_char": 3107, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Section 147", "label": "PROVISION", "start_char": 3322, "end_char": 3333, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Section 304(1 )", "label": "PROVISION", "start_char": 3492, "end_char": 3507, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 3512, "end_char": 3515, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 325", "label": "PROVISION", "start_char": 3579, "end_char": 3590, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 3595, "end_char": 3598, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 323", "label": "PROVISION", "start_char": 3663, "end_char": 3674, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 3679, "end_char": 3682, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 304(1)", "label": "PROVISION", "start_char": 3916, "end_char": 3930, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 3936, "end_char": 3939, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 302", "label": "PROVISION", "start_char": 3969, "end_char": 3980, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Badlu", "label": "WITNESS", "start_char": 4017, "end_char": 4022, "source": "ner", "metadata": {"in_sentence": "On appeals by the convicted persons as well as by the State Government, the High Court, while convicting only fourten persons, including the appellant, altered his conviction under section 304(1) /149 IPC into three convictions under Section 302/149 for the murder of three persons Badlu, Santu, Chhote Bhurwa, but it m•ade the :; entences of life impriso•ament concurrent for the three offences."}}, {"text": "Santu", "label": "WITNESS", "start_char": 4024, "end_char": 4029, "source": "ner", "metadata": {"in_sentence": "On appeals by the convicted persons as well as by the State Government, the High Court, while convicting only fourten persons, including the appellant, altered his conviction under section 304(1) /149 IPC into three convictions under Section 302/149 for the murder of three persons Badlu, Santu, Chhote Bhurwa, but it m•ade the :; entences of life impriso•ament concurrent for the three offences."}}, {"text": "Chhote Bhurwa", "label": "OTHER_PERSON", "start_char": 4031, "end_char": 4044, "source": "ner", "metadata": {"in_sentence": "On appeals by the convicted persons as well as by the State Government, the High Court, while convicting only fourten persons, including the appellant, altered his conviction under section 304(1) /149 IPC into three convictions under Section 302/149 for the murder of three persons Badlu, Santu, Chhote Bhurwa, but it m•ade the :; entences of life impriso•ament concurrent for the three offences."}}, {"text": "Baliram", "label": "WITNESS", "start_char": 4511, "end_char": 4518, "source": "ner", "metadata": {"in_sentence": "But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7."}}, {"text": "Ganesh Rao", "label": "WITNESS", "start_char": 4526, "end_char": 4536, "source": "ner", "metadata": {"in_sentence": "But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7."}}, {"text": "Gangaram", "label": "WITNESS", "start_char": 4544, "end_char": 4552, "source": "ner", "metadata": {"in_sentence": "But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7."}}, {"text": "Bade Bhurwa", "label": "WITNESS", "start_char": 4560, "end_char": 4571, "source": "ner", "metadata": {"in_sentence": "But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7."}}, {"text": "Kabra", "label": "WITNESS", "start_char": 4579, "end_char": 4584, "source": "ner", "metadata": {"in_sentence": "But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7."}}, {"text": "Lulwa", "label": "WITNESS", "start_char": 4596, "end_char": 4601, "source": "ner", "metadata": {"in_sentence": "But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7."}}, {"text": "1-8-1965", "label": "DATE", "start_char": 5188, "end_char": 5196, "source": "ner", "metadata": {"in_sentence": "Although we are un:able to disturb the concurrent finding of the fact by the Trial Court and the High Court of the participation of the appellant in the serious riot which took place on 1-8-1965 in village Ganiari, we are alsn unable to concur with the view of the High Court that o'.1 facts established, the common object of the unlawful assemblv was necessarily to cause the death of the three individuals who, unfortunately, lost their lives as a result of the out-burse of frenzy of •an outraged mob against persons who, according to the."}}, {"text": "Section 304", "label": "PROVISION", "start_char": 6474, "end_char": 6485, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 6495, "end_char": 6498, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 304(1)", "label": "PROVISION", "start_char": 6626, "end_char": 6640, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 6646, "end_char": 6649, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 300", "label": "PROVISION", "start_char": 7043, "end_char": 7054, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 7055, "end_char": 7058, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 302", "label": "PROVISION", "start_char": 7236, "end_char": 7247, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 7248, "end_char": 7251, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "I.PC", "label": "STATUTE", "start_char": 8448, "end_char": 8452, "source": "regex", "metadata": {}}, {"text": "IPC", "label": "STATUTE", "start_char": 8531, "end_char": 8534, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Chikkarange Gowda", "label": "OTHER_PERSON", "start_char": 8592, "end_char": 8609, "source": "ner", "metadata": {"in_sentence": "easier; in some respects, to prove a cominon 'eJ' as a ' basis for a iri?us lia?il!ty under Setion 149 I.PC,' than t'O. f'Stblish F :: a common 1htent10n w1thm the meaning of Sect10n 34 IPC .. -' Nevertheless, as was 'Pointed out by this Coµrf in Chikkarange Gowda's case (supra)~ the princ;:iplc h.as."}}, {"text": "Section 149", "label": "PROVISION", "start_char": 8916, "end_char": 8927, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 8928, "end_char": 8931, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 302", "label": "PROVISION", "start_char": 11340, "end_char": 11351, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 11356, "end_char": 11359, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 304(1)", "label": "PROVISION", "start_char": 11478, "end_char": 11492, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11498, "end_char": 11501, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 304( 1)", "label": "PROVISION", "start_char": 11527, "end_char": 11542, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11543, "end_char": 11546, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 300", "label": "PROVISION", "start_char": 11655, "end_char": 11666, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11667, "end_char": 11670, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section\n\n3C", "label": "PROVISION", "start_char": 12257, "end_char": 12268, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12275, "end_char": 12278, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 147, 323", "label": "PROVISION", "start_char": 12331, "end_char": 12347, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12364, "end_char": 12367, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1975_3_467_474_EN", "year": 1975, "text": "MITSUI STEAMSHIP CO. LTD.\n\nC.I.T. WEST BENGAL, II CALCUTTA\n\nFebruary 7, 1975.\n\n[H. R. KHANNA AND A. C. GUPTA, JJ)\n\nIndian Incc>me-tax Act (11 of 1922) s. 10(2)(xv) and Indian Income-tax 1ct (43 of 1961) s: 40, cl. (ii) (a) as amended by Amendment Act of l9i2~\n\nTax 011 property paid by ow11er-cum-trader-If deductible expenditure.\n\nThe appellants, non-resident companies wit;1 registered offices in Japan, had been assessed to income-tax for the assessment years 1956-1961 under the Indian lncome-tax Act, 19.22 in respect .of their Indian earnings. In the assessment proc~0dmgs they claimed as dedt•ct1ble allowance, under s. 10(2) (xv), the tax paid by them on their business assets under the local tax law in force in Japan. But the Income-tax Officer rejected the claim. The Appellate Assistant Commissioner, however, allowed the claim and his order was confirmed by the Tribunal. On reference, the High Court, on a consideration of the various provisions of the Japanese statute, held that under the Japanese law it was the ownership of the assets that was material and not their actual user in business, and relying on the decision of this Court in Tran//lcore Titanium Product Ltd. v. C.l. T. Kew/a ( 60 I.T.R. 277), decided in favour of the Revenue.\n\nAllowing the appeal to tliis Court,\n\nHELD: ( l) In Indian Aluminium Co. Ltd. v. C.l.T. West Be11gal (84 I.T.R.\n\n735) this Court held that the test adopted in the Travancore Tita11i11111 case, that to be a permissible deduction there must be a direct and intimate connection between the expend itL<re and the business, that is, between expenditure and the character of the assessee as a trader, and not as owner of the asset~, even if they arc assets of the business, ''needs to be qualified by stating that 1f th~ expenditure is laid out by the assessee as owner-cum-trader, and the expenditure is really incidental to the carrying on of his business, it must be treated tzi have been laid oct by him as a trader and as incidental to bis business. [470H-47 Jq\n\n(2} The Income-tax Act, 1961, was amended by the Income-tax Amendment Act, 1972. The amendments were introduced to restore the position established in Travancore Titanium cas~ namely, that Wealth Tax paid by an assessee in respect of his business assets was not deductible as a business expense in computing the assessee 's income from his business, which was virtually overruled by the later decision in the Indian Aluminium Company case. But the amendments do not appear to touch the principle laid down in the later case, that where a person has a dual capacity of a trader-cum-owner, and be pays tax in respect of property which is used for the purpose of the trade, the payment mu, t be taken to be in the capacity of a trader. The Amendment Act only adds the sum paid on account of wealth tax to the list of amounts no: deductible in computing the assessee's income from business. Therefore. any amount paid by the assessee on account of a tax other than the wealth-tax on his business assets would be outside the scope of the Amending Act and would continue 'to be governed by the law laid c:own itt the Indian A/11mini11m case.\n\nThe ex!'lanation in s. 40 of ih~ Income-tax Act, 1961, which s. 4 of the Amndment Act adopts for the purpose of that 'ection defines wealth tax to include, illler alia, besides wealth tax chargeable under the Indian Wealth Tax Act, 1957, \"any tax of a similar character chargeable under any Jaw in force in any counry outside India.\n\n[4710-E; 4720-G]\n\n(3) But, unlike the Wealth-tax in India the municipal property tax in apan is a local tax imposed on certain specified properties by the city! town <; r v1lla.e\n\nin which the. property is located.\n\nThe Indian. Wealth. Tax 1.s, a national. tax chargeable on the net wealth of the person with certatn sµecmed exempt10ns.\n\nThe difference in the manner of determination of the taxable basis of the properlie; aml the r.t'.es of ta1rntion emphasize the basic difference between :lr: two taxes notwi1h>ianding ce:tain points of similarity. [473H-474Bl\n\n ( 4) The facts also disclosed that the assets blonging lo the appellant:; were used by them in their business during the relevant prev10us years andalso that the payment of tax under the Japanese law was incidental to th~ carr; mg on of the business of the assessee.\n\n[473A-B1\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1072 to B 1079 of 1970.\n\nFro~ the judgment and order date<l th~ 1st July, 1969 cif the Calcutta High Court in Income Tax References Nos. 170, 17 4, 175, 186 and 184. 189, 177 & 176 of 1964.\n\nScl; in Chaudhuri (in C.As. Nos. 1076-1079;70), T. A. Nwwichandran and D. N. Gupfll, for the appellants (In all the appeals). s. C. Manchanda, (ln C.As. Nos. 1076-1079) s. P.\n\nNayar and R. N. Sachthey, for the respondent (In all the appeals).\n\nThe Judgment of e Court was delivered by\n\nGu PTA, J .-These/ two groups of appeals, brought Qn certificates granted by the Highi Court t Calcutta, arise out of two rferens\n\nunder sec. 66(2) of the lndian Income-Tax Act, 1922 mvolvrng similar questions of law. /\n\nMitsui Steamship Co. ltd,. appellant in Civil Appeals Nos. 1072-1075 of 1970 and M/s. Kawasaki Kisen Kaisha Ltd., appellant in Civil Appeals Nos. 1076-1079 of 1970, are both non-resident shipping companies having their registered offices in Japan.\n\nCivil Appeals Nos. 1072-1075 of 1970 relate to assessment years 1957-.\n\n58, 1958-59, 1959-60 and 1960-61 for which the previous years were the financial years ending on the 31st March, 1957, 1958, 1959 and 1960 respectively Civil Appeals Nos. 1076-1079 of 19/0 relate to assessment years 1956-57, 1957-58, 1958-59 and 1959-60, the corresponding previo.us years being the financial years ending on the 31st March 1956, 1957, 1958 and 1959 respectively. The appellant in each case had been assessed to income-tax for the years mentioned above u; idcr the Indian Income-Tax Act, 1922 (hereinafter l'.eferred to as the Act of 1922) in respect of its net Indian earnings.'. In the assessment proceedings the appellant companies had claimed as deductib:e allowance under sec. 10(2) (xv) of the Act of 1922 the\n\nx paid by them on tht:ir business assets under the Local Tax Law Ill force in Japan. The Income-tax Officer rejected the claim on the view that the incidence of tax uD.der the Japanese law falls on the\n\nssessee companies in their capacity as the owners of the business\n\nasets and not as traders. On appeal preferred by the assessees , the Appellate Assistant Commissioner took the view that the tax onid under the Local Tax Law in Japan was an allowable expenditure\n\nUnder sec. 10(2 l (xv) of the Act of 1922. The Tribunal also affirmed the view taken by the Appellate Assistant Commissioner overruling\n\nte contention raised on behalf of the' revenue that the miture of tax\n\nA imposed by the Japanese statute was similar to the wealthrtax payable in India which was not permissible deduction under sec. 10(2) (xv).\n\nIn Civil Appeals Nos. 1_072-75 of 1970 the question referred under sec .. 66(2) was :\n\n\"Whether on the facts and in circumstances of the case, the property tax and vessels tax paid by the assessee in - Japan on its land, buildings and other tangible assets and ships were allowable as deduction under sec. 10(2)(xv) of the Income-Tax Act, 1922 ?\"\n\nJn Civil Appeals Nos. 1076-1079 of 1970 the question referred tvas :\n\n\"Whether on the facts and in the circumstances of the case the property tax paid by the assessee in Japan on its vessels was allowable as deduction under sectio:ii 10(2) (xv) of the Income-Tax Act, 1922 ?\"\n\nThe two questipns, though worded a little differently, depend for their answers on a correct appreciation of the character of the Japanese tax.\n\nThe High Court on a consideration of the various provisions of the Japase statute held that under the Local Tax Law in Japan it was the ownership of the assets that was material and not their actual user in business, and relying on the decision of this Court in Travancore Titanium Product Ltd. v. Commissioner of Income-tax, Kerala( 1)\n\nanswered the question referred to it' in both cases in, the negative and in favour of the revenue. 'In the case of Travancore Titanium Product Ltd. ( 1) this Court was considering the question whether a sum paid as wealth-tax was deductible from the profits and gains of the assessee's business under sec. 10(2) (xv) of the Act of 1922. In hod ing that the amount of tax paid on the net wealth of an assessee under the Wealth-Tax Act was not a permissible deduction. this Court observed: ·\n\n\"The expenditure must be incidental to the business and must be necessitated or justified by commercial expediency.\n\nIt must be directly and intimately connected with the business and be laid out by the tax-payer in his character as a trader.\n\nTo be a permissible deduction, there must be a direct and intimate connection between the expenditure and the business, i.e., between the expenditure and the character of the assessee as a trader, and not as owner of assets, even if they are assets of the business.\"\n\nThe Judgment of the High Court mainlv turned on Article 341 ( 4) of the Japanese statute. From an English translation of the statute filed before the tribunal it appears t]iat the statute is divided into\n\n(l) 60 J.T.R. 277\n\nfour Books. All the Articles to •.•:hich we will refer for the purpose of these appeals are in Chapter III, Section 2 of Book Four which\n\ncontains Artic:le 341 to 7 46.\n\nChapter III bears the heading \"Ordinary Taxes of City, Town or Village\" and Section 2 deals with \"Municipal Property Tax .. \" Article 341 defiaes certaini terms concerning municipal property tax, and in so far as it is relevant for the present purpose, it reads as follows :\n\n''With respect to municipal property tax, the terms listed in the following items shall havt< the definition given to them under the: respective items :\n\n(1) Property : Land, houses and depreciable assets;\n\n(2) Lands : x x x\n\n(3) Houses : x x x\n\n( 4) Depreciable assets : Assets (excluding the mining rights, fishing right, patent right and other depreciable intangible property) other than land and house which can be used for business purpose and the amount of depreciation of which is included in the loss or m:cessary expenditures in the computation of income as provided for in the Corporation Tax Law or the Income-Tax Law (including the pro1perty similar to those properties which are owned by the person upon whom the corporation tax or the income itax has not been imposed). However, automobiles and bicycles which are the objects of the automobile tax, and bicycles and carts which are the objects of the cart tax respectively shall be excluded;\"\n\nReferring to the definition of 'depreciable assets' the High Court pointed out that under the Japanese law the assets which could be used for business purpose were subjected to tax arld it was not ·: required that !these assets should in fact be used for business purpose . . The High Court took the view .that the tax paid by the assessees under the Japanese law was in their capacity as owners of the aissets and not as traders, and applying the. tet adopted in the Travancore Titanium case (supra) the High Court held that the tax paid by the assessees under the Local Tax Law in Japan was riot deductible as a busines expense under the Act of !922.\n\nTravcncore Titanium Product case(!) was decided by a Division Bench of this Court in the year 1966. The impugned orders of the High Court in the two references out of which these appeals arise were both made in 1969. In 1972 a larger Benj::h of this Court expressed the view in the case of Indian Aluminium Co. Ltd. v. Com\" missioner of Income-Tax, West Bengal(2) that the test adopted in\n\nT__ravan_c_01:__~ __ Ti!f!!!!1!1!_1_ Prod1!ct case(1) that to be permissible deduc-\n\n(J) 60 J.T.R. ?.77. i ·\n\n(2) 84 J.T.R. 735.·\n\nA tion thete must be a direct and intimate connection between the ex- . penditure and the bus1ness, i.e., between the expenditure and the · chaq1cter of the assessee as a trader, and not as owner of assets, even . . if they are assets 0f the business \"needs to be qualified by stating that\n\n• 0 •. , if the expenditure is laid out by the assessee as owner-cumtrader, 'D'. and the expenditure is really incidental to the carrying on of his B businss, it must be treated to have been laid out by him as a trader\n\nand as incidental to his business\". It was held in In4ian Aluminium Company's case( 1) that the wealth-tax paid on assets held by the assessee for the purpose of his business, was deductihle as a business , expense in computing the assessee's income from business.\n\nWithin a few months of the decision in Indian Aluminium Com~ pany's case( 1) which was rendered on March 29, 1972, Income Tax (Amendment) Odinance 1972 (7 of 1972) was promulgated on July 15, 1972 with the object of barring, in the computation of total income in respect of certain assessment years prior to the assessment year 1962-63, deduction of amounts paid on account of wealth-tax.\n\nThe Ordinance was later repealed and replaced by the Income-Tax (Amendment) Act, 1972 (41 of 1972) containing similar provisions.\n\nD The Amendment Act which received the asseJlit of the President on August 28. 1972 sought to restore, as the Statement of Objects and Reasons says, the position established in the case of Travancore Titanium Products Ltd. v. Commissioner of Income-tax, (supra) which was virtually overruled by the later decision in Indian Aluminium Co. Ltd. v. Commissioner of Income tax,(1) that wealthtax paid by an assessee ill respect of his business assets was not deductible as a business expense in computing the assessee's income from business. Section 2 of the Amendment Act inserted with retrospective effect a new sub-clause (iia) in clause (a) of section 40 of the Income-Tax Act, 1961 which specifies the amounts not dedueti-\n\nble inl computing the income chargeable under the head \"Profits and gains of business or profession\". Subiclause (iia) adds to the list of amounts not to be deducted \"Any sum paid on account of wealthtax\". To this sub-clause an explanation was added extending th.e meaning of the expression Wealth-tax for the purpose of the subclause. The Explanatio!l reads:\n\n\"Explanation.-For the purposes of this sub-clause, \"wealth-tax means wealth-tax chargeable under the Wealth-\n\n1x Act, 1957 (27 of 1957), or any tax of a similar charac- . ter chargeable under any law in force in any country outside India or any tax chargeable under such law with reference to the value of the assets of, or the capital employed in, a busi*ss or profession carried on by the n_ssessee, whether or not the debts of the business cir profes, h sion are allowed as a deduction in computing the amount with reference to Which such tax is charged, but does not include any tax chargeable with reference to the value of any Particular asset of the business or profession;\"\n\n(I) 84 T.T.R. 735.\n\nSUPREME C9URT REPORTS\n\n(1975) 3 S.C.R.\n\nSection 4 of the Amendment Act which bears directly on the appeals before us provides: ·\n\n\"4. Wea/, thtax not deductible in complting the. totl income for certain assessment years.-Nothmg contamed m\n\nthe Indian Income-tax A.ct, 1922 ( 11 of 1922), sh al; be deemed to authorise or shall be deemed ever to ha vc authorised, any dedution in the computation of the income of any assessee chargeable under the head \"Profits and gains of business, profession or vocation\" or \"Inome from other sources\" for the assessment year commencmg on the 1st day of April, 1957, or any.subsequent assessment year, of section 40 of the principal Act.\"\n\nTo this section also an explanation was added saying :\n\n\"Explanation.·-For the purposes of this, section, \"wealth-tax\" shall have the same meaning as is assigned to it in the Explanation to sub-clause (iia) of clause (a) of section 40 of the principal Aot.\"\n\nSection 5 of the Amendment Act contains a saving clause to which it is not necess.ary to rder for the purpose of these appeals.\n\nWe have mentioned earlier the assessment years concerned in the instant appeals. The que1; tion is, what is the effect of the . Income>-· Tax (Amendment) Act, 1972 on these appeals. The amendments introduced do not appear to touch the principle laid down in Indian Aluminium Company's case (supra) that when a person has a dual capacity of a trader-cum-owner, and he pays tax in respect of property w'hich is used for the purpose of 1trade, the payment must be taken to be in the capacity of a trader. The Amendment Act only adds the sum paid on account of wealth tax to the list of amounts not deductible in computing the assessee's income from business.\n\nTherefore, any amount paid by the assessee on account of a tax other than the wealth.-tax on his business assets would be outside the scope of the Amendment Act and would continue <to be governed by the law laid down in Indian Aluminium Company's case (supra).\n\nThe explanation to the n, ew sub-clause ( iia) inserted in section 40 of the Income-Tax Act, 1961 which section 4 of the Amendment Act adopts for the purposes of that section, defines \"wealth-tax\" to include, inter alia, besides wealth-tax chargeable under the Wealth- Tax Act. 1957, \"any tax of a similar character chargeable under any law in. force in any country outside India\". The only contention raised before us on behalf of the revenue was that the nature of the tax paid by the assessees in Japan an their business assets is similar ro the wealth-tax payable under the Wealth-Tax Aot. 1957.\n\nThis leads to a comparison of the two statutes, Wealth-Tax Act. 1957 and the Local Tax Law of Japan. to find out whether they are of a similar charndter. The supplementary statement of case drawn nn bv the\n\nT, ribunal pursuant to an order of this Court dated April 11. 1973 discloses that the assets belongingto-tbe appellants with which we\n\nare concerned in these appeals were all used by them in their busines_s during the relevant previous years and also thait the payment 9f tax under the Japanese law was incidental to the carrying .on of the business of the assessees.\n\nFrom an examination of the provisions contained in Book Four of the Japanese statute, it appears to us that there is a basic difference between the Wealth-Tax Act, 1957 and 1the Local Tax Law of Japan.\n\nWealth tax in: India is charged on the net wealth of the assessee. Net wealth as defined in sec. 2(m) of the Wealth-Tax Act, 1957 means, broadly. the aggregate value of all the assets, wherever located, belonging to the assessee minus the total amount of the debts, with certain exceptions, owned by him. Generally speaking, by the value of an asset, other than cash_,_ is mea!llt its . market value. 'Asse's' has been defined in clause (e) of sec. 2 of the Act as including property of every description, moveable or immoveable, with certain specified exemptions. Wealth-tax in India is a national tax charged by the Central Government. The municipal property tax in Japan is imposed on prope1; ty as defined ill/ Article 341 (1). In this definition, property includes only land, houses and depreciable assets and not property of every description. Depreciable assets has been defined in Article 341 ( 4), inter alia, as assets other than la<ad and house which can be used for business purpose, but these assets again exclude all depredable intangible property and property which are the objects of other taxes like automobiles, bicycles and carts. Article 342 lays down t'i:it the municipal property tax shall be imposed on property by the city, town or village in which the property concerned is located and provides that with respect to vessels, vehicles and other objects similar in nature which are included in depreciable assets, the city, town. :rnd village in which the principal port of anchorage or regular\n\nkcp :1~ place is located shall be the city, town or village authorised to i pose 1the municipal property tax. Further, it appears that under the Japanese law, tax is charged at the standard rate of 1.4 per cent on the value of the property computed in the manner laid down in\n\nth~ sta1 ute providing the taxable basis, and in certain special cases\n\nit rr/ay go up to 2.5 per cent, which is the maximum; in India, the rates of wealth tax vary, increasing progressively with the am0unt of net w:::11th of the assessee.\n\nThe broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike the wealth tax in India, the munidpal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the proprties arc located. The wealth tax is a national tax chargeable on tAe\n\nnet wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxabe basis of the: properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws, as there must be, both being taxing sta.tutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts.\n\nAccordingly we allow the appeals, discharge the answers given by the High Court to the questions referred to it in these two cases, and answer the questiions in the affirmative and in favour .of the\n\nassesees. In the circumstances Qf the case we direct the parties to bear their own costs both here and -in the High Court.\n\nV.P.S.\n\nAppeals allowed.", "total_entities": 71, "entities": [{"text": "MITSUI STEAMSHIP CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "MITSUI STEAMSHIP CO. LTD", "offset_not_found": false}}, {"text": "I.T. WEST BENGAL, II CALCUTTA", "label": "RESPONDENT", "start_char": 29, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "C.I.T. WEST BENGAL, II CALCUTTA", "offset_not_found": false}}, {"text": "February 7, 1975", "label": "DATE", "start_char": 60, "end_char": 76, "source": "ner", "metadata": {"in_sentence": "C.I.T. WEST BENGAL, II CALCUTTA\n\nFebruary 7, 1975."}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ", "label": "JUDGE", "start_char": 97, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 151, "end_char": 163, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 624, "end_char": 632, "source": "regex", "metadata": {"statute": null}}, {"text": "Japan", "label": "GPE", "start_char": 721, "end_char": 726, "source": "ner", "metadata": {"in_sentence": "In the assessment proc~0dmgs they claimed as dedt•ct1ble allowance, under s. 10(2) (xv), the tax paid by them on their business assets under the local tax law in force in Japan."}}, {"text": "Travancore", "label": "GPE", "start_char": 1421, "end_char": 1431, "source": "ner", "metadata": {"in_sentence": "T. West Be11gal (84 I.T.R.\n\n735) this Court held that the test adopted in the Travancore Tita11i11111 case, that to be a permissible deduction there must be a direct and intimate connection between the expend itL<re and the business, that is, between expenditure and the character of the assessee as a trader, and not as owner of the asset~, even if they arc assets of the business, ''needs to be qualified by stating that 1f th~ expenditure is laid out by the assessee as owner-cum-trader, and the expenditure is really incidental to the carrying on of his business, it must be treated tzi have been laid oct by him as a trader and as incidental to bis business. ["}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 2028, "end_char": 2048, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-tax Amendment Act, 1972", "label": "STATUTE", "start_char": 2069, "end_char": 2099, "source": "regex", "metadata": {}}, {"text": "Travancore Titanium", "label": "ORG", "start_char": 2171, "end_char": 2190, "source": "ner", "metadata": {"in_sentence": "The amendments were introduced to restore the position established in Travancore Titanium cas~ namely, that Wealth Tax paid by an assessee in respect of his business assets was not deductible as a business expense in computing the assessee 's income from his business, which was virtually overruled by the later decision in the Indian Aluminium Company case."}}, {"text": "Indian Aluminium Company", "label": "ORG", "start_char": 2429, "end_char": 2453, "source": "ner", "metadata": {"in_sentence": "The amendments were introduced to restore the position established in Travancore Titanium cas~ namely, that Wealth Tax paid by an assessee in respect of his business assets was not deductible as a business expense in computing the assessee 's income from his business, which was virtually overruled by the later decision in the Indian Aluminium Company case."}}, {"text": "s. 40", "label": "PROVISION", "start_char": 3177, "end_char": 3182, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 3190, "end_char": 3210, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 4", "label": "PROVISION", "start_char": 3218, "end_char": 3222, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1961", "statute": "Income-tax Act, 1961"}}, {"text": "Indian Wealth Tax Act, 1957", "label": "STATUTE", "start_char": 3366, "end_char": 3393, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 3483, "end_char": 3488, "source": "ner", "metadata": {"in_sentence": "The ex!'lanation in s. 40 of ih~ Income-tax Act, 1961, which s. 4 of the Amndment Act adopts for the purpose of that 'ection defines wealth tax to include, illler alia, besides wealth tax chargeable under the Indian Wealth Tax Act, 1957, \"any tax of a similar character chargeable under any Jaw in force in any counry outside India."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4335, "end_char": 4363, "source": "ner", "metadata": {"in_sentence": "[473A-B1\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 4472, "end_char": 4491, "source": "ner", "metadata": {"in_sentence": "Fro~ the judgment and order date<l th~ 1st July, 1969 cif the Calcutta High Court in Income Tax References Nos."}}, {"text": "Chaudhuri", "label": "GPE", "start_char": 4584, "end_char": 4593, "source": "ner", "metadata": {"in_sentence": "Scl; in Chaudhuri (in C.As."}}, {"text": "T. A. Nwwichandran", "label": "OTHER_PERSON", "start_char": 4624, "end_char": 4642, "source": "ner", "metadata": {"in_sentence": "1076-1079;70), T. A. Nwwichandran and D. N. Gupfll, for the appellants (In all the appeals)."}}, {"text": "D. N. Gupfll", "label": "LAWYER", "start_char": 4647, "end_char": 4659, "source": "ner", "metadata": {"in_sentence": "1076-1079;70), T. A. Nwwichandran and D. N. Gupfll, for the appellants (In all the appeals)."}}, {"text": "C. Manchanda", "label": "LAWYER", "start_char": 4705, "end_char": 4717, "source": "ner", "metadata": {"in_sentence": "s. C. Manchanda, (ln C.As."}}, {"text": "P.\n\nNayar", "label": "LAWYER", "start_char": 4748, "end_char": 4757, "source": "ner", "metadata": {"in_sentence": "1076-1079) s. P.\n\nNayar and R. N. Sachthey, for the respondent (In all the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4762, "end_char": 4776, "source": "ner", "metadata": {"in_sentence": "1076-1079) s. P.\n\nNayar and R. N. Sachthey, for the respondent (In all the appeals)."}}, {"text": "sec. 66(2)", "label": "PROVISION", "start_char": 4999, "end_char": 5009, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act, 1922", "label": "STATUTE", "start_char": 5024, "end_char": 5044, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mitsui Steamship Co. ltd", "label": "PETITIONER", "start_char": 5083, "end_char": 5107, "source": "ner", "metadata": {"in_sentence": "Mitsui Steamship Co. ltd,.", "canonical_name": "MITSUI STEAMSHIP CO. LTD"}}, {"text": "Kawasaki Kisen Kaisha Ltd.", "label": "PETITIONER", "start_char": 5169, "end_char": 5195, "source": "ner", "metadata": {"in_sentence": "1072-1075 of 1970 and M/s. Kawasaki Kisen Kaisha Ltd., appellant in Civil Appeals Nos."}}, {"text": "Indian Income-Tax Act, 1922", "label": "STATUTE", "start_char": 5885, "end_char": 5912, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "sec. 10(2)", "label": "PROVISION", "start_char": 6097, "end_char": 6107, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-Tax Act, 1922", "statute": "the Indian Income-Tax Act, 1922"}}, {"text": "sec. 10(2 l (xv)", "label": "PROVISION", "start_char": 6610, "end_char": 6626, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-Tax Act, 1922", "statute": "the Indian Income-Tax Act, 1922"}}, {"text": "sec. 10(2)", "label": "PROVISION", "start_char": 6935, "end_char": 6945, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 10(2)(xv)", "label": "PROVISION", "start_char": 7254, "end_char": 7268, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act, 1922", "label": "STATUTE", "start_char": 7276, "end_char": 7296, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-Tax Act, 1922", "label": "STATUTE", "start_char": 7553, "end_char": 7573, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Travancore Titanium Product Ltd.", "label": "ORG", "start_char": 8176, "end_char": 8208, "source": "ner", "metadata": {"in_sentence": "In the case of Travancore Titanium Product Ltd. ( 1) this Court was considering the question whether a sum paid as wealth-tax was deductible from the profits and gains of the assessee's business under sec."}}, {"text": "sec. 10(2)", "label": "PROVISION", "start_char": 8362, "end_char": 8372, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1922", "statute": "the Income-Tax Act, 1922"}}, {"text": "Wealth-Tax Act", "label": "STATUTE", "start_char": 8480, "end_char": 8494, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 341", "label": "PROVISION", "start_char": 9112, "end_char": 9123, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 9396, "end_char": 9405, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 9534, "end_char": 9543, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 341", "label": "PROVISION", "start_char": 9584, "end_char": 9595, "source": "regex", "metadata": {"statute": null}}, {"text": "Travcncore Titanium Product", "label": "ORG", "start_char": 11346, "end_char": 11373, "source": "ner", "metadata": {"in_sentence": "Travcncore Titanium Product case(!)"}}, {"text": "In4ian Aluminium Company", "label": "ORG", "start_char": 12429, "end_char": 12453, "source": "ner", "metadata": {"in_sentence": "It was held in In4ian Aluminium Company's case( 1) that the wealth-tax paid on assets held by the assessee for the purpose of his business, was deductihle as a business , expense in computing the assessee's income from business."}}, {"text": "Indian Aluminium Com~ pany", "label": "ORG", "start_char": 12683, "end_char": 12709, "source": "ner", "metadata": {"in_sentence": "Within a few months of the decision in Indian Aluminium Com~ pany's case( 1) which was rendered on March 29, 1972, Income Tax (Amendment) Odinance 1972 (7 of 1972) was promulgated on July 15, 1972 with the object of barring, in the computation of total income in respect of certain assessment years prior to the assessment year 1962-63, deduction of amounts paid on account of wealth-tax."}}, {"text": "March 29, 1972", "label": "DATE", "start_char": 12743, "end_char": 12757, "source": "ner", "metadata": {"in_sentence": "Within a few months of the decision in Indian Aluminium Com~ pany's case( 1) which was rendered on March 29, 1972, Income Tax (Amendment) Odinance 1972 (7 of 1972) was promulgated on July 15, 1972 with the object of barring, in the computation of total income in respect of certain assessment years prior to the assessment year 1962-63, deduction of amounts paid on account of wealth-tax."}}, {"text": "July 15, 1972", "label": "DATE", "start_char": 12827, "end_char": 12840, "source": "ner", "metadata": {"in_sentence": "Within a few months of the decision in Indian Aluminium Com~ pany's case( 1) which was rendered on March 29, 1972, Income Tax (Amendment) Odinance 1972 (7 of 1972) was promulgated on July 15, 1972 with the object of barring, in the computation of total income in respect of certain assessment years prior to the assessment year 1962-63, deduction of amounts paid on account of wealth-tax."}}, {"text": "August 28. 1972", "label": "DATE", "start_char": 13233, "end_char": 13248, "source": "ner", "metadata": {"in_sentence": "D The Amendment Act which received the asseJlit of the President on August 28."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 13703, "end_char": 13712, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 13809, "end_char": 13819, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 13827, "end_char": 13847, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 4", "label": "PROVISION", "start_char": 14994, "end_char": 15003, "source": "regex", "metadata": {"statute": null}}, {"text": "1st day of April, 1957", "label": "DATE", "start_char": 15532, "end_char": 15554, "source": "ner", "metadata": {"in_sentence": "totl income for certain assessment years.-Nothmg contamed m\n\nthe Indian Income-tax A.ct, 1922 ( 11 of 1922), sh al; be deemed to authorise or shall be deemed ever to ha vc authorised, any dedution in the computation of the income of any assessee chargeable under the head \"Profits and gains of business, profession or vocation\" or \"Inome from other sources\" for the assessment year commencmg on the 1st day of April, 1957, or any.subsequent assessment year, of section 40 of the principal Act.\""}}, {"text": "section 40", "label": "PROVISION", "start_char": 15594, "end_char": 15604, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 15853, "end_char": 15863, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 15888, "end_char": 15897, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 16995, "end_char": 17005, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 17013, "end_char": 17033, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 4", "label": "PROVISION", "start_char": 17040, "end_char": 17049, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1961", "statute": "the Income-Tax Act, 1961"}}, {"text": "Wealth-Tax Act", "label": "STATUTE", "start_char": 17585, "end_char": 17599, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "April 11. 1973", "label": "DATE", "start_char": 17796, "end_char": 17810, "source": "ner", "metadata": {"in_sentence": "The supplementary statement of case drawn nn bv the\n\nT, ribunal pursuant to an order of this Court dated April 11."}}, {"text": "Wealth-Tax Act, 1957", "label": "STATUTE", "start_char": 18261, "end_char": 18281, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "sec. 2(m)", "label": "PROVISION", "start_char": 18408, "end_char": 18417, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-Tax Act, 1957", "statute": "the Wealth-Tax Act, 1957"}}, {"text": "Wealth-Tax Act, 1957", "label": "STATUTE", "start_char": 18425, "end_char": 18445, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "sec. 2", "label": "PROVISION", "start_char": 18760, "end_char": 18766, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-Tax Act, 1957", "statute": "the Wealth-Tax Act, 1957"}}, {"text": "Central Government", "label": "ORG", "start_char": 18934, "end_char": 18952, "source": "ner", "metadata": {"in_sentence": "Wealth-tax in India is a national tax charged by the Central Government."}}, {"text": "Article 341", "label": "PROVISION", "start_char": 19031, "end_char": 19042, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-Tax Act, 1957", "statute": "the Wealth-Tax Act, 1957"}}, {"text": "Article 341", "label": "PROVISION", "start_char": 19205, "end_char": 19216, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-Tax Act, 1957", "statute": "the Wealth-Tax Act, 1957"}}, {"text": "Article 342", "label": "PROVISION", "start_char": 19466, "end_char": 19477, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_475_488_EN", "year": 1975, "text": "ST ATE OF MAHARASHTRA & ORS.\n\nTHE SALVATION ARMY, WESTERN INDIA TERRITORY\n\nFebruary 10, 1975\n\n[K. K. MATHEW, P. N. BHAGWATI AND N. L. UNTWALIA, JJ.]\n\nBombay Public T_rusts Act, 1950, ss. 57 and 58 and Rule 32 of rules framed under Act-Difference between tcx and fee-Liability for co11tributio11 by public trust at 2% of gross income-If tax or fee.\n\nSection 57(1) of the Bombay Public Trusts Act, 1950 states that there shall be established a Fund to be, called the 'Public Trusts Administration Fund' and that the fund shall vest. in the Charity Commissioner appointed under the Act.. One of the amounts which o to make the Fund is the contribution made by a public trust under s. 58. Section 58 as amended by Amending Act, 1962, provides that in the case of a public trust, other than a dharmada, the contribution shall be at the prescribed rate on the gross annual income. Gross annual income is defined to mean the gross income from all sources, in:luding donations and offerings excluding, inter alia payments made with a specific direction that the paymet made shall form part of the corpus of the public trust.\n\nRule 32 of the rules made under the Act prescribed the rate of 2 % of the gross annual income, In the Amending Act, provision was made in s. 4 for retrospective operation of the provisions of the Act and the rule. ·\n\nThe respondent was registered as a public limited company under the Indian Companies Act, 1913, and also under the Bombay Public Trusts Act, 1950. In the years 1954, 1955 and 1956 it received certain sums from its international organisation.\n\nUpon these amounts and other collections in India, in 1963, the respondent was called upon to pay the contribution of 2% as required by s. 58 of the Act read with r. 32. The respondent thereupon filed a writ petition in the High Court challenging the levy. The High Court held that though the levy was a fee in the beginning, it assumed the character of a tax by the end of 31 March, 1958, when there wa> a substantial surplus with the Fund, and that thereafter the levy was illegal and ulira vires as the actual levy was made after it assumed the character of a tax. \";,.,.-:.\n\nIn appeal to this Court, HELD : ( 1) The respondent has an independent legal personality as it was registered under the Companies Act, and so, the amounts which it received cannot but be regarded as donations coming within purview of s. 58 and.· r. 32.\n\n[487C-D] . ,\n\n2(a) A tax is a compulsory exaction of money by a public authorify fora public purpose enforceable by law and is not a payment for any speci{\\c service. rendered. The levy of a tax is for the purpose of general revenue, which, when collected, for~ part of the public revenues of the. State. !here is. no element of quid pro quo between the tax payer and the public uthonty. A fe~1 h!>ever, is generally defined to be a charge for a special service ren, dered to \"lpd1V1duals bv the government or. some other agency like a local authonty or statutory corporation. The amount of fee levied is supposed to be based on the exl?enes incurred in rendering the services though, in many cases, the costs are arb1tarily assessed. Fees are generally uniform but absence of uniformi<y is not a criterin on which alone it can be said that the levy is in the nature of a !&if. As m fee 1s. regarded as a sort of return or consideration for services rendere4 it is necess3; rY \"1• that the levy of a fee should be correlated to the expenses incurred, in Jendriqg ,· the services. It is also generally necessary. that the paymnts demanded for ten,.-~. dering services must be set apart or specifically appropriated .for that purpose .. and that they should not be merged in the general revenue o! the State to e speRr-· for general public purposes. It may not, however, be possible to prove m every case that the fees colle:ted always approximate to the expenses that mre incuri:e<t,• in rendering the particular kind of services or in performing any. particular wort.· \\for the benefit of certain individuals.\n\n[481E-482C] . •. . . ·\n\n-·-·.·\n\nSUPREME COURT REPORTS [1975] 3 s.c.R.\n\nIn the present case, the revenue expenditure, is about 62 % of the amount of revenue. receipts. from 1953 to 1970. As there is approximate correlation, the levy is in the nature of a fee.\n\n[484B-C]\n\nHingir-Rampur Coal Co. Ltd. v. The State of Orissa [196112 S.C.R. 537 at 549, H. H. Sudhundra Tirtha Swamiar v. Commissioner for Hmdu Religious & Chairtab/e Endowments, Mysore, (1963] Supp. 2 S.C.R. 302 at 323; The Commis sioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Shirur Mutt [1954] S.C.R. 1005 at 1037, 1040, Mahant Sri Jagamzath Rwnanuj Das and Arother v. The State of Orissa and Another [1954] S.C.R. 1046 at 1053, Ratilal Panachand Gandhi v. The State of Bomba; y [1954] S.C.R. 1055 at 1075.\n\nNagar Mahapa/ika, Varanasi v.\n\nDurga Das Bhattacharya & Others, [19681 3 S.C.R. 374, at 385; and Government of Madras v. Zenith Lamp and E/ectric11/ Lrd. (1973] 1 S.C.C. 162, referred to.\n\nDelhi Cloth and General Mills Co. Ltd. v. Chief Commissioner, Delhi [1970] 2 S.C.R. 348, at 354,_ followed. ·\n\n. (b) A review of the relevant provisions in the Act leads to the condusion that the provisions are enacted with a. view that public trusts are administered for the purpose intended by the authors of the trust and for preserving the trust properties from waste and misappropriation by trustees. Taking precautionary measures to see that public trusts are administered for the purposes intended by the authors of the trust and exercising control and supervision with a view to preserve the trust properties from being wasted or misappropriated by tmstees are certainly special services for the benefit of the trust Therefore. it could not be contended that no siie:ia.J benefits were or are being conferred L\"pon the public trust in administenng the provisions of the Act. [484F-H]\n\n(3) The ervices are mostly rendered by the officers of the Charity Organisation. With the proliferation of public \\rusts in the State it became necessary to expand the charity organisation and to increase the staff for supervision and control. It also became necessary to have more regional offices for the more . elfective and immediate supeI'.Vision and control.\n\nThe expenditure in constmcting htiil<lings for locating th:: head office and regional offices and the increase in a!lowances or other amencties to the staff have also to be included in the costs of the services. When there is surplus it cannot immediately be said that thi: surplus must necessarily go in reduction of the rate of contribution to be J.evied thereafter. It would neither be expedient nor prudent to lay down any abstract proposition that whenever there is surplus in a particular year or years that the surplus must always be taken into consideration and the rate of the contribution should be reduced for the next year or subsequent years.\n\nAn organbation like the one in question may have to incur capital expenditure for the better allowances or other amenities to the staff have also to be included in the costs of administration of the trust and it might not be able to foresee all the contin.c:ncies in which such expenditure will have to be incurred for the more efficient wo; king of the organisation.\n\nBut. at the same time, when it is seen that after taking into\n\nacount the capital and other expenditure necessary for the efficient fu11ciionit1g of the organisation for the better administration of the trust. a very larr.e surplus is still left, then the question wili arise whether it is permissible for the organisation to continue the levy at the same rate which would only result in further surplus and to invest this surrlus solely for earning income or to divert the surplus for other obiccts, though charitable in nature.\n\nSuch levy for investment or diversion of the surplus would not be consistent with the principles b-hind the levy of a fee. No hard and fast rule applicable in all contingencies c:in be formulated.\n\nWhile it is not necessary that all available surplus should always go in reducing the rate of contribution for subsequent years, the organisation cannot be allowed to accumulate unreasonable amounts, that is, amounts which may not reasonably be required for the proper and efficient working of the organisation in a foreseeable foture.\n\nIn drawing the line, the Court will have . to look into the nature oli the organisation, the potentiality for its growth .. the multiplication in its work consequent on its expansion for rendering the service:> visualised by the Act and the necessity for capital expenditure in the near future .as also the amount of levy collected or expected to be collected in a year. [485C-\n\n486CJ .\n\n(a) In tho present case, !hero Wll8 an available surplus which waa used for\n\npurcbasin~ a bailding. Even accordin& to the High Court investment of the i; urplus in building<; or locating the head and regional offices cannot be said to be c!iersion of the surplus for purposes alien to the object of the organisation namely, the better administration of the trust.\n\nTherefore, it could not be said that by the end of March 1958, when there was rome iiUrplus, the contribution had assumed the character of a tax.\n\n[486G-E]\n\n(b) But, by tho end of March, 1970, there was a surplus of Rs.- 54 lacs.\n\nThe rate of fee' at. 2% cannot continue, thereafter, without taking into account\n\nthe corpus of Rs. 54 lacs and the income therefrom. If the Organisation ia allowea to go'\\on increasing its surplus year after year out of the amount of fee collected under s. 58 of the Act it would demonstrate that the fee levied waa unjustifiably dlSproportionate to the service rendered. The contribution at the rato of 2 % on tho gross 'incomo atter 31st March, 1970, undoubtedly assumed the character of tax as that merely augmented the income of the Charity Organi- 1ation. Therefore, beforo levyin~ any fee or determining its rate after 1970 the Charily Organisation Ii.as to balan<:e its budget.\n\n[486G-487A]\n\n( 4) The High Court was of tho view that the levy of contribution was 11/Jra vires at the time tho leY:v was made because it ceased to be a fee and became a tax. By virtue of the retrospective operation of the amended s. 58 as provided in ~. 4 of the Amending Act, the respondent became liable to pay contribution in respect of the 3 donations in the year in which they were received, that is, in 195-4, 19.55 and 1956. Therefore, even on the basis of the reasoning of the High Court that the levy assumed the character of a tax after 3 lst March,\n\n1958, it could not be held that the levy of contribution in those years became exonerated from tho liability. The fact that the actual levy was made after t 962 would not mll¢ any difference in the liability to pay the contribution R.'I the liability was incurred when tho Ievv had not assumed tho character of tax even according to tho Hi~ Court. [4870-H]\n\n( 5) (a) Tho respondent, therefore, is liable to pay contributions in respect o( 1hc three sums and tho High Court was wrong in quashing the orders passed.\n\n1487H]\n\n(b) After 31st March, 1970, the levy at 2% of the gross income cannot be justified as a fee. [487Hl\n\n(c) This doe1 not mean that no levy of contribution was permissible therc- :tfter. It only means that in levying a fee thereafter 1t should have correlation with the services, taking into consideration tho exhtonco of tho surplus fund aoJ th~ income therefrom.\n\n[488A-B]\n\n( d) Rule 32 is ultra iires.\n\n[488B]\n\nC1vrL APPELLATE JuRismcnoN : Civil Appeals Nos. 487 and 488 of 1973.\n\nFrom the judgment and order dated the 31st January, 1972 of\n\nth~. Bombay High Court in 0.S. No. 38 & 39 of 1971.\n\nNiren De, .Attorney General of India, S. Bapti:Jta and\n\nM. N.\n\nShroff, for the appellants. (in both the appeals).\n\nP. P. Khambatta, Ashok Desai, A. G. Meneses, and K. John, for the respondents. (In C.A. No. 487 /73).\n\nAs/wk Desai, A. G. Meneses and K. J. John, for the respondent Nos. 1, 2 & 4--8 (In C.A. No. 488/73).\n\n T. Civil Appeal No. 487 of 1973\n\nMATHEW J.-The respondent in this appeal is the Salvation Army, Western India Territory. It is a part of the world-wide orl!llnisation . known as the Salvation Army.\n\nTh~ headquarters of thQ 0rganisation is lo-423SCll75 . . .\n\nSUPREME COUAT REPORTS\n\n(1975) 3 1;.c.R.\n\nin London. The organisation in India was registered as a public~ limited company under the Indian Companies Act, 1913, having obtained a licence to carry on its activities without suffixing the word •Jimited' after its name. It is also registered under the Bi1)IDbay Public Trusts Act, 1950 (hereinafter called the 'Act') and carries on various charitable activities. The Company has its headquarters in Bombay. The fund:s of the Company are administered under the Articles of Association bv a Board consisting of a General, a Chiet of Staff and various other officers. The accounting year of the Compainy is from 1st of October to the 30th of September of each year.\n\nIn the years ending 30-9-1954, 30-9-1955 and 30-9-1956, the respondent received three sums from the international organisation, namely, Rs. 1,97,302/-, Rs. 2,50,228-14-0 and Rs. 2,67,732-15..0.\n\nBesides these amounts, the respondent had made collections in India.\n\nUpon all these amounts the respondent was called upon to pay a contribution 6f 2 per cent as required by s. 58 of, the Act read with rule 32 of the Bombay Public Trust Rules.\n\nThe respoildent claimed exemption from liability to pay contribution upon the three donations.\n\nAppellant No. 3 disallowed the claim. The respondent's appeal against the order wacs dismisse, d by appellant No. 4.\n\nThe respondent thereupon filed a writ pertition in the High Court of Bc.mibay for a declaration that the provision for levy of contribution contained in s.58 of the Act and rules 32 and 33 of the Rules as also th~: provisions of sections 2 and 4 of the Maharashtra Act 29 of 1962 (hereinafter referred to as the \"Amending Act of 1962\") were beyond the powers of the Stare L•egislature and that the levy of contribution on the three donations was therefore illegal. The respondent also prayed for quashing the orders passed by appellants 3 and 4 disallowing its claim for exemption from levy o~ contribution upon the aforesaid sums.\n\nA learned Single Judge of the High Court held that the levy was bad as it was not a fee but tax.\n\nAgainst this decision, an appeal was preferred before the Division Bench by the appellants. The Bench came to the conclus!on that though the levy of 2 per cent on the gross income of the publtc trusts was a fee in the beginning, it assumed the character 0£ a tax by the end of 31st March, 1958 as there was a surplus of Rs. 30,44,541 by that time and therefore the levy assumed the character of tax. and wa_, illegal from that date. The Court further held that the levy of contribution on the three donations was ultra vires as the actual levy was made after it assumed the character of a tax. It is against iliis judgment that this appeal has been filed on the basis of certi:fi.cat.c granted by the High O>urt.\n\nThe Act was brought into force from 14-8-1950. The object of the Act is to re_gulate and make better provision for the administra~ tion of public religious and charitable trusts in the State of Bombay.\n\nSection 57(1) states that there shall be established a fund to be called the Public Trusts Administration Fund and that the Fund shall vest in the Charity Olmmissioner appointed under the Act. Oause.s (a) to (() of sub-section (2) of the section specify the amounts which go to\n\nmake the fund. Of these, clause (b) concerns the contribution made under s.58.\n\nSection 58 was amended by the Amending Act of 1962 and the Amending Act came into force on 27-8-1962. That section, at all times, prescribed that every public trust shall pay to the Public Trusts Administration Fund annually such 'contribution on such date and in such manner as may be prescribed. The contribution to be paid was originally fixed by rule 32 which was also amended by the Amending Act of 1962.\n\nSection 58 as it originally stooa provided ti t the contribution prescribed under the section shall, in the case of ublic trusts other than dhannada, be fixed at rates in proportion to t e gross annual, income of such public trust and the Explanation stat .d that, for the purpose of thei section, the gross annual income shfill include gross income £rom all sources in a year excluding donation given or offering made with a specific direction that they shall form part of the corpus of the public trust.\n\nRule 32(1) of the Bombay Public Trus~ Rules, 1951, framed under s.84, clause (b), provided that every pub'lic trust other than a trust exclusively for the purpose of secular tftlucation imparted by a recognised institution or exclusively for tlle purpose of medical relief shall pay annually to the Public Trust$ Administration Fund out of its property or funds a c:ontribultion at the rate of 2 per cent of its :gross annual income or, where the public trust is a dharmada, its gross annual collection or receipts. In sub-rule (3) of Rule 32, it was provided that in calculating the gross annual income or receipts for the purpose of assessing the contributiml. the following deduction shall be allowed:\n\n\"donations given with specific directions that they shall form part of the corpus (vide Explanation to s.58).\"\n\nBy a Government notification dated 3-12-1953, rule 32 was amended. The provision for levy of contribution was substantially 1the same as in sub-rule (n of Rule 32 but the amended sub-rule (3) of Rule 32 was as follows:\n\n\"(3) In calculating the gross annual income of a Public Trust, or where the public trust is a dhannada, its gross annual collection or receipts, for the purpose of assessing the contribution, the following deductions shall be allowed, namely:\" and clause (iiii) oorresponding to the original clause (iii) of Rule 32\n\n(3) ran as follows :\n\n\"donation received during the year from any sources.\"\n\nThis rule was patently ultra vires of s.58 itself, for, the Explanation to s.58 excluded donations given or offerings made with a specific direction that they shall tlotm part of the corpus of the public trust.\n\nBut Clause (iii) of Rule 32(3), after its amendment in 1953, excluded all donations received during the year from any source. The state\n\nSUPREME COURT REPORTS (1975] 3 i!l.C.R.\n\nlegislature th<refore passed the Amending Act of 1962 which in.serted certain provisions of Rule 32 of the Rules as substantive provisions in the Bombay Public Trust Act, 1950. The legislation amended s.58 itself and the amended section was substituted for the old sc::ctioii.\n\nThe amended section, so far as it is material, provides :\n\n\"58(1) Subject to the provisions of this section, every public trust shall pay to the Public Trusts Administration Fund annually such contribution at a rate or rates not ex· ceeding five per cent of the gross annual income, or as the case may be, of the gross collection or receipt, on such date, and in such manner, as may be prescribed.\n\nThe contribution prc!SCiibed under this section shall :\n\n(i) in the case of a dharmada, be fixed at a rate or rates on\n\nthe gross annual collection or receipts of the dharmada.\n\n(ii) in the case oli other public trusts, be fixed at a rate or rates on the gross annual income of such public trust.\n\nExplanation( O. For the purpose of this sub-section 'gross annual income' means gross ru.come from all. sources in a year (including all donations and offerings),. but does not include any payment made or anything: given with a specific direction that it shall form part of\n\nthe corpus of the public trust, ~1or include any deductions which the State Government may allow by rules .......... \".\n\nProvision was also made fo1 the period durirtg which Rule 32 remained in operation and therefore s.4 of the Amending Act of 1962 provided for retrospective operation of the provisions of the Act. Section 4 provides :\n\n\"The substitution of section 58 in the princir-al Act by section 2 of this Act shall be and shall always be deemed to have been made iin the principal Act and the provisions of clause (iii) of sub-rule (3) of rule 32 of the Bombay Public Trust Rules, 1951, shall be deemoo to have been deleted from the date on which those rules came into force; and accordingly, rule 32 of these rules as amended shall be deemed always to have been validly made and to have full effect, as if it had been duly made under the principal Act as amended by this Act and anything done or action taken under that Rule shall be deemed to have been validly done or taken.'' An amendment was also effected by the Act itself in Rule 32 by deleting clause: (iii) of sub-rule (3) of Rule 32.\n\nThe validity of these amendments was not challenged before this Court.\n\nThe two main questions which arise for consideration in this appeal are : ( 1) whether the levy of contribution under s. 58 read with rule 32(3) was a tax from the inception of the levy or whether, although the levy was a fee in its inception, it assumed the chara1cter\n\nof tax in any subsequent year by reason of the accumulation-ef-the\n\nsurplus of the income over the expenditure, and (2) whether the levy of contribution on the three donations was justified.\n\nAs already stated, the learned Single Judge was ofl the view that the levy was in the nature of a tax from its inception for the reason that the contribution levied had no correlation to the services rendered. The learned Judge in taking this view was largely intluenced by the statement of the income and expenditure of the charity organisation contained in Exhibit I for the years from 1953 to 1970. The learned Judge said that the ratio of revenue expenditure to the receipt every year was 53.33 per cent on an average and that there was always a surplus of about 47 per cent after meeting all the annual recurring expenditure, that accumulation to the extent of 47 per cent oh an average every year had ultimately brought about the result that even after meeting the total expenditure, the &urplus came to Rs. 44,60,973 on 31-3-1965, that it was augmented further to Rs. 84,49,473 by 31-3-1970 and therefore the levy was at all times a tax and was beyond the power of the legislature. He further held that the respondent was not liable to pay contribution in respect of the three amounts.\n\nOn appeal, the Division Bench, after considering the distinction between a fee and a tax as laid down by this Oourt came to the conclusion that the contribution at the rate of 2 per cent of the income of the trusts was a fee till the end of March 31, 1958 aI!d that, on account of the accumulation of surplus to the tune of Rs. 30,44,541 by the end of the year 1958, it assumed the character of a tax and therefore, after 31st March 1958, the levy became ultra vires the powers of the legislature.\n\nNow th~ fii'St questiunfor -consideration-is~.What is the.nature of a fee ? It is idle to parade the familiar learning on the question of the distinction between a tax and a fee.\n\nA tax is a compulsory exaction of money by a public authority for a public purpose enforceable by law and is not a payment for any specific service rendered.\n\nThe levy of a tax is for the purpose of general revenue which when collected forms part of the public revenues of the State.\n\nThere is no element of quid pro quo between the tax payer and the public authority. A fee is generally defined to be a charge for a special , service rendered to individuals by the government or some other agency like a local authority or statutory corporation.\n\nThe amount pf fee levied is supposed to be based on the expenses incurred by the Government or the agency n rendering the service thou&h in many cases the costs are arbitrarily assessed.\n\nFees are ordmarily uniform but absence of uniformity is not a criterion on which alone\n\nit can be said that a levy is in the nature of tax. In the case of a fee, no account is taken of the varying abilities of different recipients of the service to pay.\n\nAs a fee is regarded as a sort of return or consideration for services rendered, it is necessary that the levy of fees should be correlated to the expenses incurred by the agency in rendering the services. \"If the special service rendered is distinctly and primarily meant for the benefit of a specified class or area the\n\nSUPREME COURT REPORTS [1975] 3 s.c.R.\n\nfact that in benefiting the specified class or area the state as a whole may ultimately and indirectly be benefited would not detract from the character of the levy as a fee.\" ( 1). It is also generally necessary that the payments demanded for rendering of such services must be set apart or specifically appropriated for that purpose and that they should not be merged in the general revenue of the State to be spent for general public purposes. It may not be possible to prove in every case that the fees that are collected by the Government or the agency always approximate to the expenses that are incurred by it in rendering the particular kind ofl services or in performincr any particular work for the benefit of certain individuals. \"A levy fn the nature of a fee does not cease to be of that character merely because there is an element of compulsion o:r coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of the service.\n\nIf with a view to proviide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incw-recl for rendering the service, the levy woul.d be in the nature of a fee :and not in the nature of a tax.\"(%) That there is correlation between the levy and the services can be proved by showing that on the face of the legisla, tivc provision itself, the collections are not merged in th': general revenue but arc set apart and appropriated for rendering !these services. Thus, two elements are essential in order that a payment may be regarded as a fee.\n\nIn the firsf place, it must be levied in consideration of certain services which the individuals accept either willingly or unwillinly and in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue o:r: the state to be spent for general public purposes.(1)\n\nIn Nagar Mahapaliga, Vara11asi v. Durga Das Bhattacharya & Others( 4 ) the question was whether a certain by-law under which the owners of rickshaws were liable to pay an annual sum of Rs 30/- and the drivers a sum of Rs. 51par took the character of a fee. In the course of the judgment the Court said :\n\n\"The High Court was of the opinion that the amount of Rs. 68,000 spent for paying the bye-lanes and Rs. 20,000 for lighting of stre<ets and lanes cannot be considered to have been spent in rendering services to the rickshaw owners and rickshaw drivers. The reason was that\n\n(I) seeHinglr-RaTTl()ur-Coal Co. Lt. v. The State of Orissa [1961 ]2 S. C. R. 537 at\n\nS49.\n\n(2) soc H. H. Sudhundra Thlrtha Swamlar v. Commis!lontr for Hindu Rel/g/ou.i & Charitable Endowments Mysore, (1963) Supp. 2 S. C. R. 302, at 323.\n\n(3) ~1e C?lnmlnlonr, Fli,111, Religious E11d1wment!, Madras v. Sri Lakshmindra Thlrtha Swamfar of Shirur M ult. [1954] S. C. R. 1005, at 1037, 1040; M ahant Sri lagannath Ramanuj DIU and Another v. The State of Orissa and Another, [I 954] S. C; R. 1046 at 10S3; and Ratilal Panachand Gandhi the State of Bombay [19S44 S. C. R.\n\n10.S.S, at 107S.\n\n(4). [1968] 3. S. C. R. 314, at 38.S.\n\n.•. .o\n\nMAHARASHTRA v. sALVATION ARMY (Mathew, J.) 483\n\nunder s. 7(a) of the Act it was the statutory duty of the Municipal Board to light public streets and places and under\n\ncl. {it) of the same section to construct and maintain public streets, culverts etc. The expenditure under these two items was incurred by the Municipal board in the discharge of its statutory duty and it is manifest that the licence fee cannot be imposed for reimbursing the cost of ordinary municipal services which the Municipal Board was bound under the statute to provide to the general public (see the decision of the Madras High Court in India Sugar and Refineries Ltd.\n\nv. The Municipal Council, Hospet (l.L.R. 1943 Madras 521).\" In Delhi Cloth and General Mills Co. Ltd. v.\n\nChief Commissumer, Delhi ( 1) the point for consideration was whether the amount payable for renewal of licence to run the fuctory i.n question was a fee or tax. The Court observed :\n\n\"The High Court further found, which finding being of fact, must be considered as final that 60% of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners. It can, therefore, hardly be contended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realization.\" In Government of Madras v. Zerith Lamp and ElectricalTtd.(~), this Court considered, in the context of levy of Court fees, the relevant facturs which might be taken into consideration in adjudging whether the levy was a fee or tax. The Court said :\n\n\"While levying fees the appropriate legislature is competent to take into account all relevant factors, the value of the subject-matter of the dispute, the steps necessary in the pro.- secution of a suit or matter, the entire cost of the upkeep of courts and officers administering civil justice, the vexatious nature of a certain type of litigation and other relevant matters.\"\n\nIn the light of this discussion, let us see whether the levy here was a fee and if it was a fee at the inception, whether, by reason of the accumulation of surplus, it. became a tax in any subsequent year.\n\nAccording to exhibit 1, the total receipts from all sources from the year 1953 to the year 1970 came to Rs. 2,20,78,080/-. According to the statement given by the Attorney General during the course of' argument the total contribution under s.58 of the Act came to Rs. 1,73,56,874/- treating the figures of total receipts in the years 1953 to 1956 as receipts only under s.58. There is a mistake in the figure of the chart given by the Attorney General for the years 1963, 1964 1965 and 1966. Substituting the correct figures fur those years which tally with the earlier chart given by the Attorney General, also during the course of the argument, the amount of revenue receipts\n\n(1) [1970] 2 S. C. R. 348, at 3S4.\n\n(2) [1973) 1 S. C. R. 162.\n\nWPUME COURT REPORTS\n\n[1975) 3 S.C.R.\n\nunder s. 58 would come to Rs. 1,90,19,978/( insteap of Rs. l,'73,56,- 874/-.\n\nThe: total revenue expenditure from 1953 to 1970 according to exhibit 1 is Rs. 1,17,86,443/-. Although in exhibit 1 the total revenue expendituri; is shown to be 53.33 per cent of the total of Rs. 2,20,78,080/- actually the percentage has to be calculated with reference to the figure of Rs. 1,90, U ,9181-. Calculating on that basis, the percentage will come to about 62. On the basis of the decision of this Court in the Delhi Cloth and General Mills case (supra) the levy was in the nature of fee as the expenditure was 62 per cen• of the contributions fovied and as there was appro:Umate correlation.\n\nIt was, however, argued on behalf of the respondent on the basis of the decisions in Corporation of Calcutta v. Liberty Cinema( 1) and Nagar Mahapalika, Varanasi v. Durga Das Bhattacharya (supra) that the exercise of the power of supervision and control of public trusts under the provisions of the Act would not be special services, that performance of the statutory functions a.nd duties U'ilder the Act is owed to the public and cannot be regarded as special benefits to the public trusts in the statt for which a fee oan be exacted as consideration.\n\nThe object of the Act as seen from its preamble is to regulate' and make better provisions for the administration of public religious and charitable trusts rn. the State of Bomtfay. Chapter IV of the Act provides for registration of public trusts. Chapter V deals with submission of the budgets by the trustees of certain trusts and maintenance of accounts.\n\nChapter V-A concerns the investment of public trust money and restrictions on alienations of trust property. Chapter VI deals with control.\n\nIt mak•es provisions for supervision and control over public trusts, for issuing directions by the Commissioner, for sus.pen· sion •and removal of trustees and for protection of charities in general.\n\nA review of the relevant provisions in these chapters can only lea.d . to the conclusion that the provisiO'n.s are enacted with a view that public trusts are administered for the purpose intended by the authors of the trusts and for preserving the trust properties from waste and misappropriation by trustees. Taking precautio!l'ary measures to see that public trusts are administered for the purposes intended by the authors of the trusts and exercising control and supervision with a view to preserve the trust properties from berag wasted or misappropriated by trustees are certainly special services for tqe benefit of the trust. 111.erefore. there is no substance in the argument that no special benefits were or are being conferred up on the public trusts in administt:rins the provisions of the Act. .\n\nThe question then is whether, by reason ot the accumulation of iurplus from 19.53 O'awards, the levy of contribution became a tax and if it became a tax, the point of time at which the levy assumed that character. It is not dispute that the collections by way of contribution exceeded the expenditure from 1953 onwards.\n\nThe respondent submitted tlrat surplus must be taken into consideration in determining the character of the levy. Relying upon the decisions in Mukundaraya v. State of Mysore( I) and Dal, pathbhai Hemchand v. Chansma Municipality,(') the respondent contended\n\n(I) [1965) 2 S. C, R. 477.\n\nthat the benefit of the surplus should go to those who have to pay the contributions and that ihe rate of the levy should at any rate be reduced o as to Il1aintain the just relation between the levy and the services. In other words, the argument was that if it is found that the fee imposed resulted in surplus, the rate of the subsequent imposition should correspondingly be reduced so that it may be commensurate with the expenses ihat are to be incurred in connection with the services.\n\nAs we said, the fee must, as far practically as possible, be commensurate with the services rendered.\n\nOne should not seek for any mathematical accuracy in these matters but be content with rough approximations.\n\nThe services are mostly rendered by the officers of the Chariiy Organisation.\n\nWith the proliferation of public trusts in the State it became necessary to expand the Charity OrganisatiO'a and to increase the staff for supervision and control. It also became necessary to have more regional offices for the more effective and immediate supervision a',1d control.\n\nThe expenditure in constructing buildinwi for locating the head office and regional offices and the increase in the allowances oi other amenities to the staff have also to be included in the costs of the services. When there is surplus, it cannot immediately be said that the surplus must necessarily go in reduction of the rate of contribution to be levied thereafter. We thiilk that it would neither be expedient nor prudent to lay down any abstract'proposition that whcne.vc there is surplus in a particular year or a number of yC'ar~. that surplus must always be taken into consideration and the rate of the .contribution should be reduced for the next year or subsequrnt years.\n\nAn organisation like the one in question may have to incur capieal expend iturc fer the better administration of the trusts and it might not be able to foresee an the contingencies in which such expe'Dditurc will have to be incurred for thr more efficient working ot\n\nthe orranisation.\n\nThi<> Court ha.s expr1; sslv stated in the Delhi Cloth and General Mills case (supra)\" that services worth 61 per cent of contribution would be sufficient quid pro quo to make a lt:\"y a fee.\n\nSo, when we find that in this case the organiS'ation has been rendering services worth 62. per cent of the contributiO'il, it cannot per se be said that there is no correlation between the fee levied and the services rendered. But at the same time when it is seen that after taking into account the capital and other expenditure necessary for the efficient functioning of the orga•niS'ation for the better administration of the trusts, a large surplus is still left, then the question will arise whether it is permissible for the organisation to continue the levy at the same rate which will only result in further surplus and to invest this surplu~ solely for earning income or to divert the surplus for other objects, though charitable in nature. We do not thhk any such levy for investment or diversion of the surplus would be consistent with the principle behind the levy of a fee.\n\nWhili: we do not think it necessary that all available surplus in a year or for some years should always go in for reducing the rate of contribution for the subsequent year. or year8,\n\n. ---·-------......:.-\n\n(I) A.I.R. [19601 Mysore 18.\n\n(2) A.I, R. [1968] Gujarat 38.\n\nSUPREME COURT REPORTS (1975] 3 , il.C.R.\n\nwe are of the view that the organisatio11 cannot be allowed to accumulate an unreasonable amount unreasonable in the sense that the amount might not be re1asonably required for the proper and efficient working of the organisation in a foreseeable future.\n\nNo hard and fast rule appltcable i'il all contingencies can be formulated. The Court will have to draw a line somewhere when the surplus mut be taken into considerarion for reducing the levy of contribution. In drawingi rhe line, the Court will have to look into the nature of the organisation. the poteutiality for its growth, the multiplication in its work coasequent on its expansion for rendering the services visualized by the Act and the nccessily for capital exrenditure in the near future, as also the amount of hvy collected or expected to be collected in a year. As already stated, the Division Bench was of the view that the\n\ntage when the surplus must be taken into account to determine the character of the levy was reached by the end of March, 31, 1958 when the available surplus came to Rs. 30,44,541/-. The Division Bench was alive to the desirability of locating the head office and regional offices in buildings to be owned by the organisat10n and incurring of capital expenditure in that behalf.\n\nThe Charity Organisatioa has purchased a building worth about Rs. 30 lakhs.\n\nEven according to the Division Bench, investment of the surplus in buildings for locating) the head and regiona.l offices cannot be said to be diversion of the surplus for purposes alien to the object of the orga•aisation, namely, the better administration of the trusts. Therefore, we do not think that the contribution had assumed the character of a tax at the end of March, 1958.\n\nThe surplus in the account of the Public Trusts Administmtiou Fund at the end of March, 1970, was Rs. 84,49,473/- after meetinl§ the capital expeuditure of Rs. 17,46,794/- ir:curred during the years 1953 to 1970. In the: figure of Rs. 84,49,473 /- is included the figur~ of Rs. 7,06,016/-, the accumulated balances under the repealed enactments tran~.ferred to the Public Trusts Administration Fund, plus interest of Rs. 7,13,004/- on the said figure vide exhibit No. 3. Even deducting the Rs. l.4 lakhs from Rs. 84 lakhs, the surplus in the 11ccount of the Public Trusts Administration Fund at the end of March,\n\n1970, was Rs. 70 lakhs. Allowi'ag the capital expenditure of R::;. 30 Iakhs on the buildings said to have been purchased by the Charify' Organisation, the surplus was Rs. 40 lakhs. As we said, as a matter of principle, expenses for service should be correlated to the contribution levied under s. 58 of the Act. And the capiral expenses sbould be met from the surplus fonds including the sum of Rs. 14 fakhs\n\n(receipt under s. 61 plus interest thereon: Total: Rs. 14 lakhs). The surplus at the end of March, 197.0 bei',1g Rs. 40 lakhs or, to be more accurate, Rs. 54 lakhs, the rate of fee at 2 per cent cannot continue in any event after March, 1970 without taking into account the corpus of Rs. 54 Jakhs oand the income therefrom. We think that the contribution at the rate of 2 per cent on the gross h1come of the trusts after March 31, 1970 onwards undoubtedly assumed the character of a. tax as tbat merely augmented the income of the Charity Organisation. If the Organisation is allowed to go on increasing its surplus year after year out of the amount of fee collected under s. 58 of the Act, it would\n\ndemonstrate that the fee levied was unjustifiably disproportionate to\n\nMAHARASHmA v. SALVATION ARMY (Mathew, J.) 487\n\nthe service nMdered.\n\nWe are, therefore, of the opinion that before levying any fee or determining its rate after March, 1970. the Charity Organisation has to balance its budget in the light of this judgment.\n\nThe respondent raised two contentions before the High Co-urt with respect to its liability to pay contribution in respect of the three amounts in questi<Yil.\n\nIt was first contended that these amounts were not received by way of donations, and, second, that at the time when the respondent was sought to be made liable for contributi0n on these amounts, the levy lrad ceased to be fee and had assumed the character of tax. The respondent made a return of these amounts on 8-1-1960 on the basis that it was \\lot liable to pay contribution on these amounts.\n\nNo decision was taken on this return until 10-6-1963 and on that date a notice of demand was nmde for contribution in respect of these\n\namount~.\n\nThe respondent has an independe'at legal personality a~ it was registered under the Companies Act and so the amounts which it received cannot but be regarded as dO'aations coming within the purview of s. 58 of the Act and Rule 32.\n\nThe Division Bench held that these amounts wern donations made by the international organimtion in London to the respondent. We think that the High Court was right. ·\n\nAs already stated, the Amending Act came into force on 17-8-1962. The Division Bench was of the view that the levy of contribution on these amounts W<>.S ulira vires for the reason that at the time the levy was made it had ceased to be a fee and become a tax. We do not think that the High Court was right. No doubt, the demand for contribution was made only after the Amending Act came 'into force. But by virtue of the retrospective operation of the amended s. 58 as provided in s. 4 of the Amending Act, the respondent became liable to pay contribution in respect of the three donations ra the years in which they were received.\n\nIt may be recalled that these three ' amounts were received by the respo\\)<lent in the years 1954, 1955 and\n\n1956. By virtue of the deeming provision in s. 58 as amended, these donations became exigible to pay the contribution in the relevant years.\n\nWe do not understand how these amounts which became exigible to levy Of contribution in those years by virtue of the deeming provisions in s. 58 became exonerated for the liability even on the basis of the reasoning of the Division Bench that the levy assumed the character of a tax after 31st March, l958. The fact that the actual levy was nmde after 1962 would not make any difference in the liability of the respondent to pay the contribution in respect of these amounts as tho liability was incurred when the levy had ;1ot assumed thP. character of tax even according to the Division Bench.\n\nWe, therefore, hold that the respondent is liable to pay contnoutions ir respect of the three sums and that the Division Bench went wrong in quashing the orders passed by appelku.ts 3 and 4 upholdintt the levy of contributi<Y11 on these sums. We also hold that after 31st March, 1970, the levy at the rate of 2 per cent of the gross income of the trust cannot be justified as a fee.\n\nThis does not mean that no\n\nSUPREME COURT REPORTS\n\n( 197 5) 3 S.C.R.\n\nlevy of contribution was pcnnissible thereafter. We only say that any A levy thereafter should have correlation with the services, taking into consideration the existence of the surplus fund which was not immediately required for further expenditure by way of services including' capital expenditure. We declare that levy of cont:-ibution at the rate of 2 per cent of the annual gross income of the trusts became levy of tax after 31st March, 1970 and was without the authority of !•aw.\n\nSince there was a prayer in the writ petition to declare Rule 32 as B ultra vires, we think that the respondent is entitled to this relief'.\n\nWe allow the appeal to the. extent indicated but make no order as tu .:os~.\n\nCivil Appeal No. 488 vf 1973\n\nlo this appeal, the points for consideration are practically the ame.\n\nFor the reasons we have given in our judgment in Civil Appeal No. 487 of 1973. we do not think that the Division Bench was justified in holding that the resp<Yildent W'lS not liable to pay contribution in respect of the donations in question here and in quashing the order dated 30th March, 1965. We, therefore, allow the appeal subject to the declaration of the: nature of the levy after 31st March, 1970, made in the judgment in Civil Appeal No. 487 of 1973. We make no order\n\na~ to eost5.\n\nA ppea/ £ii/owed.\n\nV.P.S.", "total_entities": 101, "entities": [{"text": "ST ATE OF MAHARASHTRA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & ORS", "offset_not_found": false}}, {"text": "THE SALVATION ARMY, WESTERN INDIA TERRITORY", "label": "RESPONDENT", "start_char": 30, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "THE SALVATION ARMY, WESTERN INDIA TERRITORY", "offset_not_found": false}}, {"text": "February 10, 1975", "label": "DATE", "start_char": 75, "end_char": 92, "source": "ner", "metadata": {"in_sentence": "THE SALVATION ARMY, WESTERN INDIA TERRITORY\n\nFebruary 10, 1975\n\n[K. K. MATHEW, P. N. BHAGWATI AND N. L. UNTWALIA, JJ.]"}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 95, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 109, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 128, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "ss. 57 and 58", "label": "PROVISION", "start_char": 183, "end_char": 196, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 57(1)", "label": "PROVISION", "start_char": 349, "end_char": 362, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Public Trusts Act, 1950", "label": "STATUTE", "start_char": 370, "end_char": 400, "source": "regex", "metadata": {}}, {"text": "s. 58", "label": "PROVISION", "start_char": 678, "end_char": 683, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "Section 58", "label": "PROVISION", "start_char": 685, "end_char": 695, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "Amending Act, 1962", "label": "STATUTE", "start_char": 710, "end_char": 728, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1256, "end_char": 1260, "source": "regex", "metadata": {"linked_statute_text": "Amending Act, 1962", "statute": "Amending Act, 1962"}}, {"text": "respondent was registered as a public limited company under the Indian Companies Act, 1913", "label": "STATUTE", "start_char": 1339, "end_char": 1429, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay Public Trusts Act, 1950", "label": "STATUTE", "start_char": 1450, "end_char": 1480, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 1622, "end_char": 1627, "source": "ner", "metadata": {"in_sentence": "Upon these amounts and other collections in India, in 1963, the respondent was called upon to pay the contribution of 2% as required by s. 58 of the Act read with r. 32."}}, {"text": "s. 58", "label": "PROVISION", "start_char": 1714, "end_char": 1719, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "31 March, 1958", "label": "DATE", "start_char": 1952, "end_char": 1966, "source": "ner", "metadata": {"in_sentence": "The High Court held that though the levy was a fee in the beginning, it assumed the character of a tax by the end of 31 March, 1958, when there wa> a substantial surplus with the Fund, and that thereafter the levy was illegal and ulira vires as the actual levy was made after it assumed the character of a tax. \";,.,.-:."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 2277, "end_char": 2290, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 58", "label": "PROVISION", "start_char": 2391, "end_char": 2396, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "SUPREME COURT REPORTS [1975] 3 s.c.R.", "label": "COURT", "start_char": 4054, "end_char": 4091, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS [1975] 3 s.c."}}, {"text": "Nagar Mahapa", "label": "PETITIONER", "start_char": 4827, "end_char": 4839, "source": "ner", "metadata": {"in_sentence": "Nagar Mahapa/ika, Varanasi v.\n\nDurga Das Bhattacharya & Others, [19681 3 S.C.R. 374, at 385; and Government of Madras v. Zenith Lamp and E/ectric11/ Lrd. ("}}, {"text": "[1970] 2 S.C.R. 348", "label": "CASE_CITATION", "start_char": 5084, "end_char": 5103, "source": "regex", "metadata": {}}, {"text": "s. 58", "label": "PROVISION", "start_char": 9606, "end_char": 9611, "source": "regex", "metadata": {"statute": null}}, {"text": "31st March, 1970", "label": "DATE", "start_char": 9787, "end_char": 9803, "source": "ner", "metadata": {"in_sentence": "The contribution at the rato of 2 % on tho gross 'incomo atter 31st March, 1970, undoubtedly assumed the character of tax as that merely augmented the income of the Charity Organi- 1ation."}}, {"text": "s. 58", "label": "PROVISION", "start_char": 10269, "end_char": 10274, "source": "regex", "metadata": {"statute": null}}, {"text": "C1vrL APPELLATE JuRismcnoN", "label": "PETITIONER", "start_char": 11534, "end_char": 11560, "source": "ner", "metadata": {"in_sentence": "[488B]\n\nC1vrL APPELLATE JuRismcnoN : Civil Appeals Nos."}}, {"text": "Niren De", "label": "PETITIONER", "start_char": 11718, "end_char": 11726, "source": "ner", "metadata": {"in_sentence": "Niren De, .Attorney General of India, S. Bapti:Jta and\n\nM. N.\n\nShroff, for the appellants. ("}}, {"text": "S. Bapti", "label": "LAWYER", "start_char": 11756, "end_char": 11764, "source": "ner", "metadata": {"in_sentence": "Niren De, .Attorney General of India, S. Bapti:Jta and\n\nM. N.\n\nShroff, for the appellants. ("}}, {"text": "M. N.\n\nShroff", "label": "LAWYER", "start_char": 11774, "end_char": 11787, "source": "ner", "metadata": {"in_sentence": "Niren De, .Attorney General of India, S. Bapti:Jta and\n\nM. N.\n\nShroff, for the appellants. ("}}, {"text": "P. P. Khambatta", "label": "LAWYER", "start_char": 11833, "end_char": 11848, "source": "ner", "metadata": {"in_sentence": "P. P. Khambatta, Ashok Desai, A. G. Meneses, and K. John, for the respondents. ("}}, {"text": "Ashok Desai", "label": "LAWYER", "start_char": 11850, "end_char": 11861, "source": "ner", "metadata": {"in_sentence": "P. P. Khambatta, Ashok Desai, A. G. Meneses, and K. John, for the respondents. ("}}, {"text": "A. G. Meneses", "label": "LAWYER", "start_char": 11863, "end_char": 11876, "source": "ner", "metadata": {"in_sentence": "P. P. Khambatta, Ashok Desai, A. G. Meneses, and K. John, for the respondents. ("}}, {"text": "K. John", "label": "LAWYER", "start_char": 11882, "end_char": 11889, "source": "ner", "metadata": {"in_sentence": "P. P. Khambatta, Ashok Desai, A. G. Meneses, and K. John, for the respondents. (", "canonical_name": "K. J. John"}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 11967, "end_char": 11977, "source": "ner", "metadata": {"in_sentence": "As/wk Desai, A. G. Meneses and K. J. John, for the respondent Nos.", "canonical_name": "K. J. John"}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 12072, "end_char": 12078, "source": "ner", "metadata": {"in_sentence": "487 of 1973\n\nMATHEW J.-The respondent in this appeal is the Salvation Army, Western India Territory."}}, {"text": "Salvation Army, Western India Territory", "label": "RESPONDENT", "start_char": 12119, "end_char": 12158, "source": "ner", "metadata": {"in_sentence": "487 of 1973\n\nMATHEW J.-The respondent in this appeal is the Salvation Army, Western India Territory."}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 12430, "end_char": 12456, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "IDbay Public Trusts Act, 1950", "label": "STATUTE", "start_char": 12600, "end_char": 12629, "source": "regex", "metadata": {}}, {"text": "Bombay", "label": "GPE", "start_char": 12743, "end_char": 12749, "source": "ner", "metadata": {"in_sentence": "The Company has its headquarters in Bombay."}}, {"text": "1st of October to the", "label": "DATE", "start_char": 12953, "end_char": 12974, "source": "ner", "metadata": {"in_sentence": "The accounting year of the Compainy is from 1st of October to the 30th of September of each year."}}, {"text": "30th of September of", "label": "DATE", "start_char": 12975, "end_char": 12995, "source": "ner", "metadata": {"in_sentence": "The accounting year of the Compainy is from 1st of October to the 30th of September of each year."}}, {"text": "30-9-1954", "label": "DATE", "start_char": 13028, "end_char": 13037, "source": "ner", "metadata": {"in_sentence": "In the years ending 30-9-1954, 30-9-1955 and 30-9-1956, the respondent received three sums from the international organisation, namely, Rs."}}, {"text": "30-9-1955", "label": "DATE", "start_char": 13039, "end_char": 13048, "source": "ner", "metadata": {"in_sentence": "In the years ending 30-9-1954, 30-9-1955 and 30-9-1956, the respondent received three sums from the international organisation, namely, Rs."}}, {"text": "30-9-1956", "label": "DATE", "start_char": 13053, "end_char": 13062, "source": "ner", "metadata": {"in_sentence": "In the years ending 30-9-1954, 30-9-1955 and 30-9-1956, the respondent received three sums from the international organisation, namely, Rs."}}, {"text": "s. 58", "label": "PROVISION", "start_char": 13378, "end_char": 13383, "source": "regex", "metadata": {"linked_statute_text": "IDbay Public Trusts Act, 1950", "statute": "IDbay Public Trusts Act, 1950"}}, {"text": "High Court of Bc.mibay for", "label": "COURT", "start_char": 13718, "end_char": 13744, "source": "ner", "metadata": {"in_sentence": "The respondent thereupon filed a writ pertition in the High Court of Bc.mibay for a declaration that the provision for levy of contribution contained in s.58 of the Act and rules 32 and 33 of the Rules as also th~: provisions of sections 2 and 4 of the Maharashtra Act 29 of 1962 (hereinafter referred to as the \"Amending Act of 1962\") were beyond the powers of the Stare L•egislature and that the levy of contribution on the three donations was therefore illegal."}}, {"text": "s.58", "label": "PROVISION", "start_char": 13816, "end_char": 13820, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 2 and 4", "label": "PROVISION", "start_char": 13892, "end_char": 13908, "source": "regex", "metadata": {"statute": null}}, {"text": "31st March, 1958", "label": "DATE", "start_char": 14671, "end_char": 14687, "source": "ner", "metadata": {"in_sentence": "The Bench came to the conclus!on that though the levy of 2 per cent on the gross income of the publtc trusts was a fee in the beginning, it assumed the character 0£ a tax by the end of 31st March, 1958 as there was a surplus of Rs."}}, {"text": "14-8-1950", "label": "DATE", "start_char": 15144, "end_char": 15153, "source": "ner", "metadata": {"in_sentence": "The Act was brought into force from 14-8-1950."}}, {"text": "Section 57(1)", "label": "PROVISION", "start_char": 15311, "end_char": 15324, "source": "regex", "metadata": {"statute": null}}, {"text": "s.58", "label": "PROVISION", "start_char": 15663, "end_char": 15667, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 58", "label": "PROVISION", "start_char": 15670, "end_char": 15680, "source": "regex", "metadata": {"statute": null}}, {"text": "27-8-1962", "label": "DATE", "start_char": 15761, "end_char": 15770, "source": "ner", "metadata": {"in_sentence": "Section 58 was amended by the Amending Act of 1962 and the Amending Act came into force on 27-8-1962."}}, {"text": "Section 58", "label": "PROVISION", "start_char": 16081, "end_char": 16091, "source": "regex", "metadata": {"statute": null}}, {"text": "s.84", "label": "PROVISION", "start_char": 16652, "end_char": 16656, "source": "regex", "metadata": {"statute": null}}, {"text": "s.58", "label": "PROVISION", "start_char": 17397, "end_char": 17401, "source": "regex", "metadata": {"statute": null}}, {"text": "3-12-1953", "label": "DATE", "start_char": 17441, "end_char": 17450, "source": "ner", "metadata": {"in_sentence": "By a Government notification dated 3-12-1953, rule 32 was amended."}}, {"text": "s.58", "label": "PROVISION", "start_char": 18058, "end_char": 18062, "source": "regex", "metadata": {"statute": null}}, {"text": "s.58", "label": "PROVISION", "start_char": 18095, "end_char": 18099, "source": "regex", "metadata": {"statute": null}}, {"text": "Rules as substantive provisions in the Bombay Public Trust Act, 1950", "label": "STATUTE", "start_char": 18517, "end_char": 18585, "source": "regex", "metadata": {}}, {"text": "s.58", "label": "PROVISION", "start_char": 18611, "end_char": 18615, "source": "regex", "metadata": {"linked_statute_text": "the Rules as substantive provisions in the Bombay Public Trust Act, 1950", "statute": "the Rules as substantive provisions in the Bombay Public Trust Act, 1950"}}, {"text": "Public Trusts Administration Fund", "label": "ORG", "start_char": 18833, "end_char": 18866, "source": "ner", "metadata": {"in_sentence": "The amended section, so far as it is material, provides :\n\n\"58(1) Subject to the provisions of this section, every public trust shall pay to the Public Trusts Administration Fund annually such contribution at a rate or rates not ex· ceeding five per cent of the gross annual income, or as the case may be, of the gross collection or receipt, on such date, and in such manner, as may be prescribed."}}, {"text": "s.4", "label": "PROVISION", "start_char": 19878, "end_char": 19881, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 19977, "end_char": 19986, "source": "regex", "metadata": {"statute": null}}, {"text": "section 58", "label": "PROVISION", "start_char": 20020, "end_char": 20030, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 20056, "end_char": 20065, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Public Trust Rules, 1951", "label": "STATUTE", "start_char": 20223, "end_char": 20254, "source": "regex", "metadata": {}}, {"text": "s. 58", "label": "PROVISION", "start_char": 20954, "end_char": 20959, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trust Rules, 1951", "statute": "the Bombay Public Trust Rules, 1951"}}, {"text": "31-3-1965", "label": "DATE", "start_char": 22126, "end_char": 22135, "source": "ner", "metadata": {"in_sentence": "44,60,973 on 31-3-1965, that it was augmented further to Rs."}}, {"text": "31-3-1970", "label": "DATE", "start_char": 22187, "end_char": 22196, "source": "ner", "metadata": {"in_sentence": "84,49,473 by 31-3-1970 and therefore the levy was at all times a tax and was beyond the power of the legislature."}}, {"text": "31st March 1958", "label": "DATE", "start_char": 22815, "end_char": 22830, "source": "ner", "metadata": {"in_sentence": "30,44,541 by the end of the year 1958, it assumed the character of a tax and therefore, after 31st March 1958, the levy became ultra vires the powers of the legislature."}}, {"text": "S49", "label": "PROVISION", "start_char": 27176, "end_char": 27179, "source": "regex", "metadata": {"statute": null}}, {"text": "Ratilal Panachand Gandhi the State of Bombay", "label": "RESPONDENT", "start_char": 27595, "end_char": 27639, "source": "ner", "metadata": {"in_sentence": "1954] S. C. R. 1005, at 1037, 1040; M ahant Sri lagannath Ramanuj DIU and Another v. The State of Orissa and Another, [I 954] S. C; R. 1046 at 10S3; and Ratilal Panachand Gandhi the State of Bombay [19S44 S. C. R.\n\n10.S.S, at 107S.\n\n(4). ["}}, {"text": "s. 7(a)", "label": "PROVISION", "start_char": 27776, "end_char": 27783, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 28314, "end_char": 28331, "source": "ner", "metadata": {"in_sentence": "The expenditure under these two items was incurred by the Municipal board in the discharge of its statutory duty and it is manifest that the licence fee cannot be imposed for reimbursing the cost of ordinary municipal services which the Municipal Board was bound under the statute to provide to the general public (see the decision of the Madras High Court in India Sugar and Refineries Ltd.\n\nv. The Municipal Council, Hospet (l.L.R. 1943 Madras 521).\""}}, {"text": "s.58", "label": "PROVISION", "start_char": 30103, "end_char": 30107, "source": "regex", "metadata": {"statute": null}}, {"text": "s.58", "label": "PROVISION", "start_char": 30233, "end_char": 30237, "source": "regex", "metadata": {"statute": null}}, {"text": "[1970] 2 S. C. R. 348", "label": "CASE_CITATION", "start_char": 30546, "end_char": 30567, "source": "regex", "metadata": {}}, {"text": "[1973) 1 S. C. R. 162", "label": "CASE_CITATION", "start_char": 30582, "end_char": 30603, "source": "regex", "metadata": {}}, {"text": "s. 58", "label": "PROVISION", "start_char": 30650, "end_char": 30655, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter IV of the Act", "label": "STATUTE", "start_char": 32065, "end_char": 32086, "source": "regex", "metadata": {}}, {"text": "Chariiy Organisation", "label": "ORG", "start_char": 34763, "end_char": 34783, "source": "ner", "metadata": {"in_sentence": "The services are mostly rendered by the officers of the Chariiy Organisation."}}, {"text": "Delhi Cloth and General Mills", "label": "ORG", "start_char": 36084, "end_char": 36113, "source": "ner", "metadata": {"in_sentence": "Thi<> Court ha.s expr1; sslv stated in the Delhi Cloth and General Mills case (supra)\" that services worth 61 per cent of contribution would be sufficient quid pro quo to make a lt:\"y a fee."}}, {"text": "March, 31, 1958", "label": "DATE", "start_char": 38440, "end_char": 38455, "source": "ner", "metadata": {"in_sentence": "As already stated, the Division Bench was of the view that the\n\ntage when the surplus must be taken into account to determine the character of the levy was reached by the end of March, 31, 1958 when the available surplus came to Rs."}}, {"text": "Charify' Organisation", "label": "ORG", "start_char": 39908, "end_char": 39929, "source": "ner", "metadata": {"in_sentence": "30 Iakhs on the buildings said to have been purchased by the Charify' Organisation, the surplus was Rs."}}, {"text": "s. 58", "label": "PROVISION", "start_char": 40074, "end_char": 40079, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 61", "label": "PROVISION", "start_char": 40204, "end_char": 40209, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 1970", "label": "DATE", "start_char": 40610, "end_char": 40624, "source": "ner", "metadata": {"in_sentence": "We think that the contribution at the rate of 2 per cent on the gross h1come of the trusts after March 31, 1970 onwards undoubtedly assumed the character of a. tax as tbat merely augmented the income of the Charity Organisation."}}, {"text": "s. 58", "label": "PROVISION", "start_char": 40862, "end_char": 40867, "source": "regex", "metadata": {"statute": null}}, {"text": "8-1-1960", "label": "DATE", "start_char": 41690, "end_char": 41698, "source": "ner", "metadata": {"in_sentence": "The respondent made a return of these amounts on 8-1-1960 on the basis that it was \\lot liable to pay contribution on these amounts."}}, {"text": "10-6-1963", "label": "DATE", "start_char": 41818, "end_char": 41827, "source": "ner", "metadata": {"in_sentence": "No decision was taken on this return until 10-6-1963 and on that date a notice of demand was nmde for contribution in respect of these\n\namount~.\n\nThe respondent has an independe'at legal personality a~ it was registered under the Companies Act and so the amounts which it received cannot but be regarded as dO'aations coming within the purview of s. 58 of the Act and Rule 32."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 42005, "end_char": 42018, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 58", "label": "PROVISION", "start_char": 42122, "end_char": 42127, "source": "regex", "metadata": {"statute": null}}, {"text": "London", "label": "GPE", "start_char": 42252, "end_char": 42258, "source": "ner", "metadata": {"in_sentence": "The Division Bench held that these amounts wern donations made by the international organimtion in London to the respondent."}}, {"text": "17-8-1962", "label": "DATE", "start_char": 42376, "end_char": 42385, "source": "ner", "metadata": {"in_sentence": "As already stated, the Amending Act came into force on 17-8-1962."}}, {"text": "s. 58", "label": "PROVISION", "start_char": 42781, "end_char": 42786, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 42802, "end_char": 42806, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 43107, "end_char": 43112, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 43344, "end_char": 43349, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_489_498_EN", "year": 1975, "text": "48 9\n\nL. MICHAEL & ANR.\n\nM/S. JOHNSTON PUMPS INDIA LTD.\n\nFebruary 10, 1975\n\n[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SA!XAIUA, JJ.]\n\nf11dmtrial Dispules Act (14 of 1947)-Dismlssa/ of art e:mployee-Powcr of Tribunal to go behind an order of tennr'nation-Employer must diM:/osie the\n\ncro11nd3 of his action when challenged as colourable or ma/a fide-W lle11 Cort rt .1/ro11/d irt1erfcre with a {iJuling of fact.\n\nThe service<i of \\he appellant, who was an empl, Jyee of the respondents, w.crc terminated by the !alter by ,.iving h.i.m a month's .not!ce as por th\" stand1!1g orders without assigning anv reasons for the tern11Q.at1on.\n\nThe consequential industrial dispute was referred to the Labour c., urt. f he management alleged that the dismissed employee misused his position by p<15sing on important and secret inform.'\\.tion about the affairs of the company to certain outidcro, that even after he was transferred to another section he made attempts to elicit information from the section with a view to pass it on to outsiders, 11nd that, therefore, ihe management lost confidence in the emolovee and terminated his\n\nservice~ by a bona fide orJcr. lhe Labotir Court confirmed the order of termination.\n\nIn appeal to this Court, it was contend~'1 that, even where a man.igement had the power to terminate the services of its employees without reasons but with notice pay the colourable exercise of <fit power invalidated the order and the Court could probe beneath the surface to check upon the hona {1.-lc.1 hehind the eercise of the power.\n\nAllowing the appeal to this Court.\n\nHEL'.) : I (a) The Labour Court has nJ.iskJ itself on the law and its onle1 'hould be set 11Side.\n\nThe workman will be reinstated with back wages. [498 GJ\n\n(b) The manner of dressing up 11.n order doe$ not matter. The Court will lift the veil to view the reality or substance of the order. [495 F]\n\n(2) (a) The Tribunal has the oower and, indeed, the dutv to X-ray the order and discover its true nature, if the object and effect, if the attendant circlllUslances and the ulterior purpose be to dismiss the employee because he is \"D evil to be eliminated .. Bui if the management, to cover up the inability to establish by an inquiry, illegitimately but ingeniously passes an innocent looking\n\n<1fder of termination simpliciter, such action is !:lad and is liable to be set aside.\n\nLoss of confidence is no new armour for the man?tgement; otherwise securityof tcnu; c, ensured by the new industrial jurispruden,:e and authenticated by a. catcna of cases of this Court can be subverted , by thi.5 neo formula Loss of confiden;; o in the law will be the consequence of tho Loss of Confidence doctrine. [497 C-D]\n\n(b) An employer who believe or suspects that his employee, particularly ono holrung a position of confidence, has betrayed that confid=. can, if the\n\nconditions and terms of the employment permit, terminate bis employment and discharge him without any stigma attaching to the discharge.\n\nBut such belief or suspicion of the employer should not be a mere whim or fancy. It should\n\nbe bona fide and reasonable. It must rest on some tangible basis and the POWer bas to be exercised by the employer objectively, in good faith. which:\n\nns honestly and with due care. and prudence. If the exercise of such powe1 is challenged on the gl'cund of bemg cotourable or mala fide or an act of victim.isation or unfair labour practice, the employer must disclose to the ('..onrt the grounds of his impugned action so that tho same may be tested judicially.\n\n1498 B-CJ\n\nfo tho instant case this has n?t been done. There is only the ipse di.tit of the ewployer that he was suspecting since 1968 that the appellant was divulging 'ecrets relatinR to his business. The employer has not disclbsed the grounds on which this suspicion arose in 1968.\n\nFurther, aftr 1968, the appellant was gi••en\n\nSU1'REME COURT REPORTS\n\n[1975] 3 S.C.R.\n\ntwo extra increments in addition to his normal increments in appreciation of his hard wo.rk.\n\nThis circumstance completely demolishes even the whimsical and tenuous stand taken bv the employer. It was manifest that the impugned action was not bona fidie. [498 DJ\n\n\nManagement, [19701 II L.L.J. 620. followed.\n\n\nDelhi Transport Undertaking v. Goel [1970] II LlJ, 20, referred to.\n\n(3) It is true that this Court, in appeal, a~ .1 rule of practice, is loath to inU:rfere with a finding of fact recorded by t11e trial court. But if such a fi11ding is based on no evidence, or is the result of a misreading of the mater:al evidenc.~\n\nor JS so unreasonable or grossly un; ust that n; i reasonable person would judi dally arrive at that conc\\usi<m. it is the duty of this Court to interfere arid se.t matters right. [498 E-F]\n\nCI.VIL APPELLATE JURISDICTION: Civil Appeal No. 1605 of l.972.\n\nApneal by Special leave from the Award dated November 24, .l 911 D of the Labour Court, Delhi in L.C.l.C, No. 31 of 1971.\n\nM. K. Ramamurthi and J. Ramamurthi, for the appellant.\n\nV. M. Tarkunde, 0. C. Mathur, D. N. Mishra, and Sudhir K.\n\nKhanna, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nKRr>HNA. IYER, J.-Industrial law in India has many twilight patches, illustrated by the present appeal which projects the problem of an employee whose services have been terminated similiciter by the Management, a pump manufacturing enterprise, issuing a notice ending the employment and offering one month's pay as authorised by the relevant Standing Orders.\n\nThe thorny legal issue is whether the ipse .dixit of the employer that he his lost confidence in the employee is. suffident justification jettison the fatter without levelling and provr.1g the objectionable conduct which has undermined his confidence so that the: tribunal may be satisfied about the bona fides of the 'firing• as contrasted with the colourable exercise of power hiding a not-so-innocuous purpose.\n\nTh.e backdrop\n\nThe facts and circumst-.mces become decisive of the fate of the case even where the law is simplistic or fair in its face.\n\nHere, what are the events and enviironments of employment leading to the worker being given the boot ? Is the order an innocent and, therefore, legal quit notic<. sanctioned by the Standing Orders which does not stigmatise the worker but merely bids him good-bye ? Oris it a sinister intent to punish as a guileless order based on 'loss of confidence', an alibi which, on a certain reading of this Court's rulings, is also a protective armour .against judicial probe and setting aside?\n\nL. MICHAEL v. JOHNSTON PUMPS (Krishna Iyer, l.) 4 91\n\nMichael, a permanent employee of proved efficiency and six years' standing, was appreciatively given two 'merit' increme,1ts.\n\nBut a letter of September 2, 1970 told him off service, giving him one month'! 'notice-pay' discharging him without damning, as distinguished from dismissing him for misconduct.\n\nThe rival versions illumine the factual confrontation, the resolutioa of which is no easy legal essay.\n\nThe worker, Michael, through his Union, protested against the 'sack' order as victimisoation of a Trade Union activist but the Management was heedless, conciliation was fruitless and the dispute between the Union and the Management was eventually referred by the Delhi Administration to the Labour Court for adjudicution.\n\nThe reference ran thus :\n\n\"Whether the termination of services of Shri L. Michael is illegal and/or unjustified and. if so, to what relief is be entitled and what directions are necessary in this respect ?\"\n\nBoth sides stated their cases in their pleadi'ngs and the true nature of the conflict emerges from them.\n\nThe story set out by the employee in his statement before the Labour Court was tfrat although he was efficient, appreciated and awarded merit increments, the Management was antagonised by his active part in the formation of an Employees' Union, especially because oral warnings by the Regional Manager against his Unionist procfr.dty was ignored.\n\nMichael became the treasurer of tqe Union.\n\nThis Union chapter claimed its price, for the Management quietly terminated his services by a simple letter which reads :\n\n\"We are sorry to advise that your services are no longer required by the Company.\n\nAs such, this letter may be treated as a notice for the termination of your services with immediate effect.\n\nAs for the terms of your employment Jetter, on termi.nati<YJ of services you will be paid one month's salary extra.\n\nYou may please call on the undersigned and have your accounts settled.\"\n\nThis act, claims the worker, was 'in flagrant violation of t:lementary principles of natural justice without assigning any reason and without giving him an opportunity to defend himself.\n\nThis, in his statement he challenged the termination as 'wIOngful, malafide, illegal, and an act of victimisation'. The counter case of the management get up in its statement, as is apparent from the discharge order, is that no dismiJsal is involved, no enquiry necessary a•ad no illegality inv-alidates.\n\nThe management claimed that the alleged annoyance with the workman for union activity was a concoction in self-defence, as the Management had not even knowledge of the formation of the Union.\n\nThis latter limb of the plea is a little too naive.\n\nThe warning by the Regional Manager was denied and the reference to trade union activities by the worker was more 'to create a ground for the workman's daim and has been levelled as a matter of habit and routine'.\n\nThe basic plea of the management was that the action being a simple\n\ntermination without a sting, the process and consequence of a disciplinary action were not attracted.\n\nThe Management, however, took the Court into confidence lll explain why the employee was discharged. He was employed as a Receipt and Despatch Cierk in the office upto 10-3-1970.\n\nAs ar1 insidr with access to office corresponde,1ce the employee misused bis position by passing on 'very important and secret information about the affairs of the company to certain outsiders'.\n\nHe was consequc11tially shiftl!d to the post of clerk handling posting of bills and collection of payments but the workman, although deilied direct access to coms pondence in the Receipt and Despatch section, made attempt 'to elicit information from the section with a view to pass it on to outsiders'.\n\nThe upshot of these activities of which the management was aforted was a loss of confidcnce in the employee.\n\nThis unreliability was visited with non-injuri()us termination of service by a bona fide order.\n\nTherefore, the action was claimed to be legal and immune to judicial i nteif erenoo.\n\nTwo socially vital factors must inform the urnlerstanding a.nd application of Industrial jurisprudence. Tbe first is the constitutional mandate of Part IV obligating the State to make 'provisiO'J for securing just and humane conditions of work'.\n\nSecurity of. employment is the first requisite of a worker's life.\n\nThe second equally axiomatic consideration is that a worker who wilfully or anti-socially holds up the wheels of production or undermines the success of the business is a high risk and deserves, in industrial interest, to be removed without tears.\n\nLegislation and judicial interpretation have woven the l.egal fabric.\n\nWe have to see whether on the facts of the present case what the relevant law is, whether it has been applied by the Labour Court rightly and whether the appellant has merit on his side, judged by the social conscience and judicial constructiQ/a of the law in this br.ancb of discharge simpliciter versus disguised dismissal.\n\nA few salient facts need emphasis before the principles of law arc applied.\n\nThe workman in his statement stressed the case of n!alus animus due to bis union activities, although be did vaguely refer to the termination of service as wrongful and malafide.\n\nFrom this it cannot be argued, as the M:rnagement sought to make out, that his d1::nial of leaking out office secrets wa5 an after-thought pleaded only in the rejoinder and therefore liable to be discredited.\n\nHow could the worker have a hunch about the management's undisclosed ground for dismissal ? When the latter stated the reason which prompted this action ior the t time befor:e the Labour Court, .the .workman in bis reply\n\nrefuted thIS case. It 1lS noteworthy that there ts no speck of re1:ord or any hint of written material in support of the story that the management had crible information of the appellant betraying sensitive secrets of busmess. The letters sent by the Union and the worker requesting for reinstatement were being ignored. The management could well have disclosed their suspicion fa reply and told the Union and the orkman that they resorted to an innocuous discharge to avoid punit1v~ trauma. The management could have divulged in writing to\n\nL. MiCHAEL v. JOHNSTON PUMPS (Krishna Iyer,!.) 49:!\n\nthe Conciliation Officer their legitimate fears about the worker's inte- ,; rity and their considerate action of simple termination.\n\nThis too they failed to do.\n\nIn theif writte';1 statement in Court the Management asserted for the first time that the employee was an intractable smuggler of inside information.\n\nThe statement winds up with the legalistic plea : 'the management had, in the meanwhile, lost confidence in the workman'.\n\nThis culminating collapse of trust is alleged to be the primary cause for the discharge from employme'at.\n\nAL the time of the evidence, M.W.l, a former Regional Manager, swore that the workman joined as a pump operator in 1963, w•as promoted as clerk in 1967, that the suspicion of disloyal communication arose 'for the first time in 1968' and yet 'thereafter he was given two increments extra in addition to normal increments.\n\nHe was a hard working man and has a very good memory but the suspicion was there'.\n\nThese are the facts and the evidence in the case and it has bee,1 fairly conceded before the Labour Court by the Management's representative that were the action regarded as punitive it was bad, there having been no enquiry whatever with liberty to the employee to meet the charge.\n\nBut the single slender strend on which the discharge was suspended was 'loss of confidence' of the management in the employee.\n\nThe Labour Court argued :\n\n\"According to the management, as there was no proof with it for this suspicion it could not proceed against him departmenrally and, in the circumstances, it was considered desirable to terminate his service3 by passing an order of discharge without any stigma attached to it.\"\n\nWhile on all hands it was agreed that the employee was efficient, the court took the view that the motivatio•a for the termination was the 'suspicion which lurked in the mind of the Regional Manager that information regarding tenders was being passed on by the workman'.\n\nWe have to find out whether the holding in the award that, on the ' materials above placed, the action could be called colourable or saved as bona fide, could be castigated as achieving an illegitimate end or supported as a premature but straight-forward and harmless farewell.\n\nIn short. was loss of confidence a legal label affixed by the management to eject the workman, there being no other legal method of accomplishing their wish to remove him for misconduct? - I ,· Two questions, therefore, fall for decision.\n\nCan a person, reasonably instructed ir. the law and scrutinising with critical faculties the facts on record, come to th.e conclusion that the snapping of the tie of master and servant in the present case was innocuous and bonafide or oblique circumvention of the processual protection the law provides before a workman is dismissed for mis-c0'11duct ?\n\nWe can discern harmony and consistency in case law Chartered Bank( 1) and Murugan( 2 ) through Sudder Of!ice(3)\n\n(1) [1960] 3 S. C R. 441.\n\n(2) [1965] 2 S. C. R. 148. (3\\ fl9i0] II L. L. J. 620.\n\nfrom and\n\n17-423SCl\\75\n\n494 SUPREME COURT REPOl.TS [1975) 3 s.c.R.\n\nAir India Corporation ( 1). The social justice perspective und pa.rticular facts are important, though.\n\nThe plethora ot precederits need not, be covered in extenso as the law laid down is the same ex1:ept that judicial response to each case situation leads to emphasis on different facets of the principle. Even so some milestone decisions, if we may say so, may be considered.\n\nfn Muruga11 Mills Case (supra) Wanchoo J (as he then was), speaking for th(: Court made the following observations :\n\n\"The right of the employer to terminate the services of his workman u'L1der a standing order like cl.17(a) in the present case, which amounts to a claim 'to hire and fire' an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication, came 1~? for c0nsidcra1ion befor, e the Labour Appellate Tribunal in Buckingham & Carnatic Co. Ltd v. Workers of the Compr.. y\n\n(1952 L.A.C. 490).\n\nThe matter the\"1 came up before this Court also in Chartered Bank v. Chartered Bank Employees\n\nUnion (1960 3 SCR 44 I and the Management of U. B.\n\nDutt & Co. v. Workmen of U. B. Dutt & Co. (19152 Supp. 2 SCR 822) wherein the view taken by the Labour Appellate Tribunal was approved and it was held that even in a case like the present the requirement of bona fides was tsse't1tial and if the termination of service was a colourable exercise of the power or as a result of victimis•ation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination.\n\nThe form of the order in such a case is not waclusive and the tribunal can go behind the order to find the reasons which led to the order and then consider for itself whether the termination was a colourable exercise of unfair Jabour practice. If it came to the conclusion that the terminaticm was a colourable exercise of the power or was a result of victimisation or unfair labour practice, it would have the jurisdiction to intervene >and set aside such trmination.\"\n\nIn that case the form of the order had no foul trace, but before the Tribunal dereliction of duty and go-slow tactics were disclosed as the inarticulate reasons.\n\nThis Court ruled :\n\n'This clearly amounted to pm1ishrnent for misconduct and therefore to pass an order under cl.17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provisions of the Standing Orders.\"\n\nShri M. K. Ramamurthy, coun, cl for the appellants, contended for the proposition that cve,1 where a management had the power to terminate tl; e scnices of its employee without reasons but with notice pay only, the colourable exercise of that power invalidated it, and the\n\n(I) [1972] 3 S. C. R. 05.\n\nL. MICHAEL v. JOHNSTO.N PUMPS (Krishna Iyer, J.) 4 95\n\nCourt could probe beneath the surface to check upon the bonafides behind the exercise of the power. If the reasons including the termination were victimisation, unfair 1'abour practice or mis-conduct, it was foul play to avoid a fair e11quiry and fall back upon the power to terminate simpliciter.\n\nThere me myriad situations where an employer may, in good faith, have to reduce his st•aff, even though he may have only a good word for his employees.\n\nSimple termination is a weapon useable on such occasions and not when the master is willing to strike but afraid to ?Vound.\n\nWe have been referred to the Bihar State Road Transport Corporation case(l). The power of the Court to go behind the language of the order is reaffirmed there. In Sudder Office\n\n(supra) the Court apparentlY. laid stress on the Management's right to terminate the services simpliciter under the terms of contract, where there was no lack of bona {ides, unfair Jabour practice or victimisation.\n\nIt is signifit:ant that this Court used language and laid down law very much like in the earlier cases and did refer to the precedents O'il the point.\n\nFor instance, Vaidialingam J., there observed:\n\n\"It is needless to point out that it has been held by this Court in The Chartered flank, Bombay v. The Chartered Bank Employees' Union (1960 II LLJ 222) that if the termination of service is a colourable exercise of the power vested in the man•ageme'at or as a result of victimisation or unfair labour practice, the Industrial Tribunal would have jurisdiction to intervene and set aside such termination.\n\nIn order to find out ll'hether the order of termination is one of termination simpliciter under the provisions of CO'atract or of standing orders, the Tribunal has ample jurisdiction to go into all the circumstances which led to the termination simpliciter.\"\n\nTho manner of dressing up an order does not matter.\n\nThe Court will lift the veil to view the reality or substance of the order.\n\nThe Court, in that case. examraed the circumstances in detail to see whether a di.smissal for mis-conduct was being masked. as a simple send off with a month's pay, and held ultimately :\n\n\"We are satisfied th•at the management has passed the order of termination simpliciter and the order . does not amount to one of dismissal as and by way of punishment.\" Of cpurse, loss of confidence io,1 the workman was alleged by the management and the Court found that it was not a camouflage.\n\nIt may be noticed that in that case the workman was being entrusted with stores worth several lakhs of rupees, some goods were Jost from the stores and the Union was informed by the management that it had Jost confideace in the workman.\n\nIn the written statement boforc the Labour Court the management alleged that the workman was the head godown-clerk who was the custodian of the company's property, the post being one of trust and confidence. It is noteworthy that in the High Court the workman did not even file a counter-affidavit and the counsel for the Union and the workman agreed that the order o( termination was no~ a camouflage to cover up what really was an order\n\n(1) [19701 3 S. C.R. 708.\n\nof dismissal.\n\nHe merdy urged that the termination of the services was really by way of dismissal.\n\nIn this conspectus of circumstances, this Court found that the Head Clerk in charge of the engineeri\\119 godown and responsible for the maintenance of considerable stores, held a sensitive position.\n\nThis Court observed :\n\n\"The entire basis of the Labour Court's award for holding that the order is one of dismissal is its view that the\n\nma, rngcment has invoked cl. 9 to camouflage its action.\n\nWhen that approach has been given up on behalf of the workman bcftirc the High Court the reasoning of the Labour Court falls to the ground and the High Court has acted within the jurisdiction under Art. 226 when it set aside the order ol' the Labour Court especially when there has been no finding of victimisation, ll'i1fair labour practices or mala fides recorded, against the management. To conclude we are satisfied that the High Court was justifie, i in setting aside the order of the Labour Court.\"\n\nWe have gone into this decision at length to disabuse the impression that a new defence mechanism to protect termination of service . simpliciter, viz., loss of confidence, had been propounded in this ruling.\n\nWe do not agree. that any such innovation has been made. The Ait\" India Corporation Case (supra). may seem to support the 'no confidence' doctrine but a closer study contradicts any such view.\n\nOf course, Shri Tarkunde, counsel for the management, placed great reliance on this ruling.\n\nNeedkss to say, this Court recognised the power of the Tribunal to go behind the form of the order, look at the substance and set aside what may masquerade as termination simpliciter, if in walitv it cloaked a dismissal for misconduct 'as a colourable exercise of pc1wer by the management'. The Court repeated that an Industrial employer cannot 'hire and fire' his workmen on the basis of an unfettered right under the contract of employment.\n\nOn the facts of the Air-lndia Case (supra) the Court concluded that it was 'not possible to hold this order to be based on any conceivable misconduct'.\n\nSpecial reference was made to the grave suspicion regarding the complainant's private conduct with airhbstesses. Where no misconduct spurs the action and a delicate unsuitability for the job vis a vis the young women in employment in the same firm is strongly suspected, resort to termination simpliciter cannot be criticised as a malafide mechination. In that background, the action was held to be honafide and the overall unsuitability led to a loss of confidence in the employee.\n\nNot that the loss of confide,1ce was exalted as a ground but the special circumstances of the case exonerated bad faith in discharge simpliciter.\n\nBefore concluding the discussion, we may refer to the case of Delhi Transport Undertaking v. Goel(!) adverted to by the Labour Court.\n\nIndeed that decision turned on Regulations framed under the Delhi Road Transport Authority Act, 1950 and not o•a pure Industrial Law or construction of the Standing Orders. Moreover, the Court, in that\n\n(I) [1970] II LLJ 20.\n\nL. MICHAEL v. JOnNSTON PUMPS (Krishna Iyer, J.) 4 97\n\ncase, appears to have iscussed rulings under Art. 311 also. However, on the facts of that case, the Court was satisfied that order of termination was not a d; sguise or cloak for dismissing the employee and the ground given, that he was a cantankerous person undesirable to be retained was good. We do not read the Delhi Transport case (supra) to depart from Murugan Mills Case (supra).\n\nIndeed, the latter did not, and maybe _could not, overrule the former.\n\nThe above study of the chain of rulings brings out the futility of the contention that subsequent to Murugan Mill's Case (supra) co/ourab/e exercise of power has lost validity and loss of confidence has gained ground. The law is simply this : The Tribunal has the power and, indeed, the duty to X-ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated.\n\nBut if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeaiously passes an innocent-looking order of termination simpliciter, such action is bad and is liable to be set aside.\n\nLoss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authe•aticated by a catena of cases of this Court, c•an be subverted by this neo-formula. Loss of confidence in the Law will be the consequence of the Loss of Confidence doctrine.\n\nIn the light of what we have indicated, it is clear that loss of confidence is often a subjective feeling or individual reaction to an objective set facts 1md motivations.\n\nThe Court is concerned with the latter and not with the former, although circumstances may exist which justify a genuine exercise of the power of simple termination. In a reasonable case of a confidential or responsible post being misused or a sensitive or strategic position being abused, it may be a high risk to keep the employee, once suspicion has started and a disciplinary enquiry cannot be forced on the master.\n\nThere, a termination simpliciter may be bona1 fide, not colourable, and loss of confidence may be evidentiary of good faith of the employer.\n\nIn the present case, the catalogue of circumsta'aces set out in the earlier part of the judgment strikes a contrary note. The worker was not told when he wrote; the Union was not disclosed when they demanded; the Labour Court was treated to verbal statements like; 'very reliable sources' and other credulous phrases without a modicum of evidence to prove bonafides.\n\nSome testimony of unseemly attempts by the workman to get at secrets outside his orbit, some radication of the sour.:e of suspicion, some proof of the sensitive or strategic role of the employee, should and would have been forthcoming had the case been bona fide.\n\nHow contradictory, that even when a strong suspicion of leaking out sensitive secrets was being entertained about the employee he was being given special merit increments over and above the normal increments' A case of res ipsa loauitur.\n\nCircumstances militate against the 'I say so' of M.W.1 that , he man-agement had suffered an ineffable loss of confidence.\n\nTo hit below the belt by trading legal phmses is not Industr!al Law.\n\nWe are constrained to express ourselves unmistakably lest industrial unrest induced by\n\nwrongful terminations. based on convenient loss of confidence should be generated.\n\nBefore w1~ conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidace, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and dischurge him without any stigma attaching to the discharge.\n\nBut such belief or suspicion of the employer should not be a mere whim or fancy.\n\nIt should be bona fide and reasonable.\n\nIt must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. lf the exercise of sucn power is challenged on the ground of being colourable or ma/a fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially.\n\nIn the instant case this has not been done.\n\nThere is only the ipse dixit of the employer that he was suspecti1ag since l. 968 that the appellant was divulging secrets relating to his business.\n\nThe employer has not disclosed the grounds m which this suspicion arose in 1968. Further after 1968, the appellant was given two extra increments, in addition to his normal increments, as stated already, in appreciation of his hard work:.\n\nThis circumsr; mce completely demolishes even the whimsical and tenuous stand t'aken by the employer. It was manifest therefore that the impugned action was not bona fide.\n\nIt was urged by Mr. Tarkunde, learned counsel for the employer that the question whether or not the employer had lost conndence in the employee, was essentially one of fact a•,1d this Court should not disturb the finding of fact recorded by the trial court on this point.\n\nIt is true that this Court, in appeal, as a rule of practice, is loath to interfere with a finding of fact recorded by the trial Court. But if such\n\na finding is based on no evidence, or is the result of a misreading of the material evidence, or is so unreasonable or grossly u1njust tfatt no reasonable person would judicially arrive at that conclusion, it is the duty of this Court to interfere and set matters right.\n\nThe case before us is one such instance, where we are called upon to do so.\n\nThe Labour Court has misled itself on the law and we set aside its order. The work.man: will be reinstated with back: wages.\n\nHowever the management will be free, if it has sufficie,1t material and if so advised, to proceed against the workman for misconducts or on other grounds valid in law.\n\nThe appeal is, accordingly, allowed with costs.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 42, "entities": [{"text": "9\n\nL. MICHAEL & ANR", "label": "PETITIONER", "start_char": 3, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "L. MICHAEL & ANR", "offset_not_found": false}}, {"text": "M/S. JOHNSTON PUMPS INDIA LTD", "label": "RESPONDENT", "start_char": 25, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "M/S. JOHNSTON PUMPS INDIA LTD", "offset_not_found": false}}, {"text": "February 10, 1975", "label": "DATE", "start_char": 57, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "February 10, 1975\n\n[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SA!XAIUA, JJ.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 77, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 94, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 4925, "end_char": 4941, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and J. Ramamurthi, for the appellant.", "canonical_name": "M. K. Ramamurthi"}}, {"text": "J. Ramamurthi", "label": "LAWYER", "start_char": 4946, "end_char": 4959, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and J. Ramamurthi, for the appellant."}}, {"text": "V. M. Tarkunde", "label": "LAWYER", "start_char": 4981, "end_char": 4995, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, 0."}}, {"text": ". C. Mathur", "label": "LAWYER", "start_char": 4998, "end_char": 5009, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, 0."}}, {"text": "D. N. Mishra", "label": "LAWYER", "start_char": 5011, "end_char": 5023, "source": "ner", "metadata": {"in_sentence": "C. Mathur, D. N. Mishra, and Sudhir K.\n\nKhanna, for the respondent."}}, {"text": "Sudhir K.\n\nKhanna", "label": "LAWYER", "start_char": 5029, "end_char": 5046, "source": "ner", "metadata": {"in_sentence": "C. Mathur, D. N. Mishra, and Sudhir K.\n\nKhanna, for the respondent."}}, {"text": "HNA. IYER", "label": "JUDGE", "start_char": 5117, "end_char": 5126, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRr>HNA."}}, {"text": "India", "label": "GPE", "start_char": 5149, "end_char": 5154, "source": "ner", "metadata": {"in_sentence": "IYER, J.-Industrial law in India has many twilight patches, illustrated by the present appeal which projects the problem of an employee whose services have been terminated similiciter by the Management, a pump manufacturing enterprise, issuing a notice ending the employment and offering one month's pay as authorised by the relevant Standing Orders."}}, {"text": "Michael", "label": "PETITIONER", "start_char": 6569, "end_char": 6576, "source": "ner", "metadata": {"in_sentence": "L. MICHAEL v. JOHNSTON PUMPS (Krishna Iyer, l.) 4 91\n\nMichael, a permanent employee of proved efficiency and six years' standing, was appreciatively given two 'merit' increme,1ts.", "canonical_name": "L. Michael"}}, {"text": "September 2, 1970", "label": "DATE", "start_char": 6712, "end_char": 6729, "source": "ner", "metadata": {"in_sentence": "But a letter of September 2, 1970 told him off service, giving him one month'! '"}}, {"text": "Michael", "label": "PETITIONER", "start_char": 6991, "end_char": 6998, "source": "ner", "metadata": {"in_sentence": "The worker, Michael, through his Union, protested against the 'sack' order as victimisoation of a Trade Union activist but the Management was heedless, conciliation was fruitless and the dispute between the Union and the Management was eventually referred by the Delhi Administration to the Labour Court for adjudicution.", "canonical_name": "L. Michael"}}, {"text": "Delhi Administration", "label": "ORG", "start_char": 7242, "end_char": 7262, "source": "ner", "metadata": {"in_sentence": "The worker, Michael, through his Union, protested against the 'sack' order as victimisoation of a Trade Union activist but the Management was heedless, conciliation was fruitless and the dispute between the Union and the Management was eventually referred by the Delhi Administration to the Labour Court for adjudicution."}}, {"text": "L. Michael", "label": "PETITIONER", "start_char": 7373, "end_char": 7383, "source": "ner", "metadata": {"in_sentence": "The reference ran thus :\n\n\"Whether the termination of services of Shri L. Michael is illegal and/or unjustified and.", "canonical_name": "L. Michael"}}, {"text": "10-3-1970", "label": "DATE", "start_char": 9808, "end_char": 9817, "source": "ner", "metadata": {"in_sentence": "He was employed as a Receipt and Despatch Cierk in the office upto 10-3-1970."}}, {"text": "Krishna Iyer", "label": "OTHER_PERSON", "start_char": 12836, "end_char": 12848, "source": "ner", "metadata": {"in_sentence": "The management could have divulged in writing to\n\nL. MiCHAEL v. JOHNSTON PUMPS (Krishna Iyer,!.)"}}, {"text": "M.W.l", "label": "WITNESS", "start_char": 13432, "end_char": 13437, "source": "ner", "metadata": {"in_sentence": "AL the time of the evidence, M.W.l, a former Regional Manager, swore that the workman joined as a pump operator in 1963, w•as promoted as clerk in 1967, that the suspicion of disloyal communication arose 'for the first time in 1968' and yet 'thereafter he was given two increments extra in addition to normal increments."}}, {"text": "[1960] 3 S. C R. 441", "label": "CASE_CITATION", "start_char": 15787, "end_char": 15807, "source": "regex", "metadata": {}}, {"text": "[1965] 2 S. C. R. 148", "label": "CASE_CITATION", "start_char": 15814, "end_char": 15835, "source": "regex", "metadata": {}}, {"text": "Air India Corporation", "label": "ORG", "start_char": 15934, "end_char": 15955, "source": "ner", "metadata": {"in_sentence": "R.\n\nAir India Corporation ( 1)."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 16345, "end_char": 16352, "source": "ner", "metadata": {"in_sentence": "fn Muruga11 Mills Case (supra) Wanchoo J (as he then was), speaking for th(: Court made the following observations :\n\n\"The right of the employer to terminate the services of his workman u'L1der a standing order like cl.17(a) in the present case, which amounts to a claim 'to hire and fire' an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication, came 1~?"}}, {"text": "cl.17(a)", "label": "PROVISION", "start_char": 16530, "end_char": 16538, "source": "regex", "metadata": {"statute": null}}, {"text": "(1960 3 SCR 44", "label": "CASE_CITATION", "start_char": 17019, "end_char": 17033, "source": "regex", "metadata": {}}, {"text": "cl.17(a)", "label": "PROVISION", "start_char": 18273, "end_char": 18281, "source": "regex", "metadata": {"statute": null}}, {"text": "M. K. Ramamurthy", "label": "LAWYER", "start_char": 18465, "end_char": 18481, "source": "ner", "metadata": {"in_sentence": "Shri M. K. Ramamurthy, coun, cl for the appellants, contended for the proposition that cve,1 where a management had the power to terminate tl; e scnices of its employee without reasons but with notice pay only, the colourable exercise of that power invalidated it, and the\n\n(I) [1972] 3 S. C. R. 05.", "canonical_name": "M. K. Ramamurthi"}}, {"text": "[1972] 3 S. C. R. 05", "label": "CASE_CITATION", "start_char": 18738, "end_char": 18758, "source": "regex", "metadata": {}}, {"text": "Bihar State Road Transport Corporation", "label": "ORG", "start_char": 19422, "end_char": 19460, "source": "ner", "metadata": {"in_sentence": "We have been referred to the Bihar State Road Transport Corporation case(l)."}}, {"text": "Sudder Office", "label": "ORG", "start_char": 19556, "end_char": 19569, "source": "ner", "metadata": {"in_sentence": "In Sudder Office\n\n(supra) the Court apparentlY. laid stress on the Management's right to terminate the services simpliciter under the terms of contract, where there was no lack of bona {ides, unfair Jabour practice or victimisation."}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 19953, "end_char": 19965, "source": "ner", "metadata": {"in_sentence": "For instance, Vaidialingam J., there observed:\n\n\"It is needless to point out that it has been held by this Court in The Chartered flank, Bombay v. The Chartered Bank Employees' Union (1960 II LLJ 222) that if the termination of service is a colourable exercise of the power vested in the man•ageme'at or as a result of victimisation or unfair labour practice, the Industrial Tribunal would have jurisdiction to intervene and set aside such termination."}}, {"text": "cl. 9", "label": "PROVISION", "start_char": 22436, "end_char": 22441, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 22667, "end_char": 22675, "source": "regex", "metadata": {"statute": null}}, {"text": "Ait\" India Corporation", "label": "ORG", "start_char": 23246, "end_char": 23268, "source": "ner", "metadata": {"in_sentence": "The Ait\" India Corporation Case (supra)."}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 23395, "end_char": 23403, "source": "ner", "metadata": {"in_sentence": "Of course, Shri Tarkunde, counsel for the management, placed great reliance on this ruling."}}, {"text": "Indeed that decision turned on Regulations framed under the Delhi Road Transport Authority Act, 1950", "label": "STATUTE", "start_char": 24835, "end_char": 24935, "source": "regex", "metadata": {}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 25160, "end_char": 25168, "source": "regex", "metadata": {"linked_statute_text": "Indeed that decision turned on Regulations framed under the Delhi Road Transport Authority Act, 1950", "statute": "Indeed that decision turned on Regulations framed under the Delhi Road Transport Authority Act, 1950"}}, {"text": "Delhi Transport", "label": "ORG", "start_char": 25430, "end_char": 25445, "source": "ner", "metadata": {"in_sentence": "We do not read the Delhi Transport case (supra) to depart from Murugan Mills Case (supra)."}}, {"text": "Murugan Mills Case", "label": "ORG", "start_char": 25474, "end_char": 25492, "source": "ner", "metadata": {"in_sentence": "We do not read the Delhi Transport case (supra) to depart from Murugan Mills Case (supra)."}}, {"text": "Murugan Mill", "label": "OTHER_PERSON", "start_char": 25676, "end_char": 25688, "source": "ner", "metadata": {"in_sentence": "The above study of the chain of rulings brings out the futility of the contention that subsequent to Murugan Mill's Case (supra) co/ourab/e exercise of power has lost validity and loss of confidence has gained ground."}}]}
{"document_id": "1975_3_519_525_EN", "year": 1975, "text": "RAM KUMAR PANDE\n\nTHE STATE OF MADHYA PRADESH February 11, 1975\n\n[M. H. BEG AND A. ALAGIRISWAMI, JJ.]\n\nB Criminal trial-High Court interfering willi acquittal by trial court-When Supreme Court can illlerfere with decision of High Court.\n\n El'idence Act (I of 1872) s. 11, Scope of.\n\nSupreme Court (Enlargement of CKimina/ Appellate Jurisdiction) Act, 1970-\n\nAquittal set aside an~ sentence of life imprisonment imposed-Certificate of High Court for appealtng to Supreme Court not necessary.\n\nThe appellant was charged with two offences, (i) under s. 307 I.P.C. with rs pect to one person, and (ii) under s. 302/34, I.P.C. for having, along with other accused, caused the death of another. The trial court convicted him under s.324 J.P.C. on the first charge and acquitted him of the other charge. The appeal by the State against the acquittal on the second charge was allowed by the High Court and the appellant was convicted under s.302/34 l.P.C. and sentenced to life imprisonment.\n\nAilowing. the appeal to this Court,\n\n. HELD : (I) In the case of an appeal against atl/acquittal the appellate court should not interfere with the acquittal merely because it can take one of the two reasenably possible views which favours conviction. But if the view of the !rial. court is not reasonably sustainable, on the evidence on record, the appellate court will interfere with the acquittal. If the High Court sets aside an acquittal and convicts, this Court has to be satisfied, after examining the prosecution and defence cases, and the crucial points emerging for decision from the facts of the case, that the view taken by the trial court, on the evidence on recC'rd, is atleast as acceptable as the one taken by the High Court, before this Court could interfere with the decision of the High Court. [5210] ·\n\n(a) The First Information Report is a previous statement which, strictly speaking, can b~ only used to corroborate or contradict the maker o'f it. In the present case, the F.I.R. was made by the father of the deceased to whom all the important facts of the occurrence were bound to have been communicated. But, though the F.I.R. was given about 4 hours after the incident, it was not mentioned therein that the appellant had stabbed the deceased.\n\nThe omission of such an important fact affecting the' probabilities of the case is relevant under s.1 l nf the Evidence Act in judging the veracity of th~ prosecution case. (5220)\n\n(b) The evidence, shows that the deceased was 'stabbed by one or the other accused; that the place of occurrence had been shifted by the witnesses for. the prosecution; that the version of the alleged eye witnesses is not credible; and that the alleged dying 'declaration is unreliable. [524B-DJ\n\n(2) The High Court, having found that the appellant and the other accused were individually responsible for their acts, erred in finding the appellants guilty on the basis of common intention. of an offene under s. 302134 I.P.C.\n\n[524FG]\n\n(3) An appeal to this Court by the accused, in a case where his acquittal had heen convrted into a conviction and the sentence of life imprisonment was imposed upon him, lies as a matter of right under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, '1970, and no certificate of the High Court is necessary.\n\n[521A] CRIMINAL APPELLATE JuRISDIGTION: Criminal Appeal No. 12 of 1972.\n\nFrom the Judgment and Order dated the 1st May, 1971 of the Madhya Pradesh High Court in Crl. Appeal No. 653 of 1970.\n\n2-470SCI/75 '\n\nR. K. Bhatt for the appellant.\n\nRam Punjwani,, H. S. Parihar and/. N. Shroff, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBEG, J. The sole appellant Ram Kumar Pandoy, aged 45 . years, was tried tog1ether with Suresh Kumar aged 20 years, and Mulkra1, aged 45 years, aiud Ramesh Kumar, aged 17 years, on two chiarges framed against him.\n\nThese were : \"Firstly; That you on or about the 23rd day of March 1970 at Raipur, did an act, to wit, hit Uttam Singh with a knife with such intention or knowledge and under such circumstances, that if by that act, you had csed the death of Uttam Singh you would have been guilty of murder and that you caused grievous hurt to Uttam Singh by the said a::t and that you thereby committed an offence, punishable undtr Section 307 l.P.C. and; Secondly : That at the said time and place, you or some other persons did commit murde~ by intentionally or knowlingly causing the death of Harbinder Singh and the said act was da,1e in furtherance of the common intention of 'all and thereby committed. an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within the cognizance of the Court of Sessions.\"\n\n. Suresh Kumar, Mulkraj, and Ramesh Kumar, were accused of offences punishable under Sections 307 /114 and Section 302 l'ead with Section 34 and 114 Indian Penal Code. The Sessions' Judge of Raipur, who had tried the case, found Suresh Kumar guilty of the murder by stabbing of' Harbinder Singh, aged about 16 yeai:m, and sentenced him to lifo imprisonment. He CO'ilvicted the appellant under Section 324 I.P.C. only for the injury inflicted on Uttam Singh and sentenced him to one year's rigorous imprisonment, but acquitted him ot other charges.\n\nHe also acquitted the accused Ramesh and M:ulkraj of aD charges levelled against him.\n\nThe State of Madhya Pradesh appealed agains~ the acquittal of the appellant Roam Kumar Pandey of the charge under Section 302134 l.P.C., and of Mulkraj a1.1d Ramesh Kumar of oal.l charges. Suresh Kumar, the son of Mulkraj appealed against his conviction under Section 302 simplicitor, but this appeal was dismissed by the High Court which maintiained his life imprisonment. The High Court also allowed the State's appeal against the acquittal of Ram Kumar Pandy for injuries caused to Harbinder Singh, and, convictrilg him under Section\n\n302/34 l.P.C., it sentenced him to life irnprisionment. It convicted Mulkraj of an offence punishable only under Section 323 I.P.C. and sentenced him to a1 fine of Rs. 200/-, and, in default of payment of fine, to rigorous impriscoment for two months. It upheld the acquittal of Ramesh Kumar Ahuja of •all charges. ·\n\nTis. a~ hru1 come _up before us after a certificate granted by the High Court under. Article 134(1)(c) of the Constitution, but the\n\ncertificate says that the appellant is entitled to it under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, i; trictly speaking, no certificate ot the H1gb Court IS reguired tor sucn an appeal where an acquittal ha~ been converted into a conviction nnder Section 302/34 1.P.C., and a sentence of life imprisonment imposed upon an accused person. Tbs appeal, in su:b a case, lies as a mat!er of right to this Court under the Act of 1970.\n\nThe only question before us now is whether the appellant, who had not appealed at all to the High Court against his conviction under Section 324 I.P.C., which stands, was rightly convicted by the High Court under Section 302/34 I.P.C., after setting aside his acquittal for the graver offence for injuries resulting in the death of Harbinder Singh. .\n\nThe well settled rule of practice in a case of oan appeal against an acquittal is that the appellate Court. should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction. But, if the view of the Trial Court is not reasonably sustainable, on the evidence on record, the appellate Court will interfere with n acquittal. If the Appellate Court sets aside an acquittal and convicts, we have to be satisfied, after examining the prosecution and defence cases, and the crucial points emerging for decision from the fucts of the case, that the view taken by the Trial Court, on evidence on record, is at least as acceptable as the one taken by the High Court, before we could i•aterfere with the High Court's judgment.\n\nThe prosecution case, as set out in the First Information Report was: Uttam Singh, PW 1, residing arGanj Parao, on the first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Utta.m Singh had been quarrelling with members of his family. Uttam Singh requested him to take his seat and promised to look into the matter. This angered Suresh Ahuja.\n\nThereafte~, his elder brother alrrived and started quarrelling with Uttam Singh's daughter. At this stage, the landl'Ord Mulkraj Ahuja, acc01)lpanied by the appellant Ram Kumar Pandey, who lives with his fumily in a side .room on the ground floor, entered and immediately gave him a blow on his eye-brow. Uttam Singh fell down. As Uttam Sirrgh got up, the appellant struck him with a knife from behind.\n\nMulkraj asked Pandey to run down-stairs. Both the accused tried to run away. Uttam Singh tried to catch them but failed. Uttam Singh then asked his son Harbinder Singh to make a telephone call. At this point, Suresh, son of Mulkraj, . stabbed Harbinder Singh who fell down in the lane. Uttam Singh saw Harbinder Singh lying near the house of Saudager Shah with an injury on his chest which was bleeding profusely. Harbinder Singh was carried to a hospital on a cart and Gurcharan Singh telephoned the police. Joginder Singh also came while the injuries were being inflicted. Uttam Singh's daughters Amarjit Kaur and Taranjit Kaur saw Uttarn Singh wrapping a chadar on the wound of Harbinder Singh. Raj Jaggi had seen Harbinder\n\nSingh falling down. The motive for this incident was that Mulkraj Ahuja, the landlord, wanted his house vacated by Uttam Singh.\n\nHarbinder Singh had died while being taken to hospital.\n\nThe above mentioned First Information Report was lodge:d at Police Station Ganj on 23-3-1970 at 9.15 p.m. The time of this incident is stated to be 5 p.m. The only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh.\n\nThe two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.LR. only as persons who saw the wrapping of the chadar on the wound. of Harbinder Singh, What is most significant is that it is nowhere mentioned in the F.I.R. that the appellant had stabbed Harbinder Singh at all. It seems inconceivable that by 9.15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder1 Singh.\n\nNo doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it.\n\nBut, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the\n\nF.I.R.\n\nWe think that omissions of such important facts, affecting the probabilities uf the case., are relevant under Section 11 of the Evidence Act ln judging the veracity of the prosecution case.\n\nEven Joginder Singh, PW 8, was not an eye witness of the occurrence. He merely proves an alleged dying declaration. He stated that Harbinder Singh (described by his pet name as \"Pappi\") rushed out of his house by opening its door, and held his hand on his chest with hlood flowing down from it.\n\nHe deposed that, when he asked Pappi\n\nwhat had happened, Pappi had stated that Suresh and Pandey had F injured him. It is clear from the F.I.R. that Joginder Singh had met Uttam Singh before the F.I.R. was made.\n\nUttam Singh did not mention there that any dying declaration, indicating that the appellant had also injured Harbinder Singh, was made by Ha:rbinder Singh. The omission to rriention any injury inflicted on Harbinder Singh by the appellant in the F.I.R. seems very significant in the circumstances of this case. Indeed, according to the version in the F.I.R., G Joginder Sin,::h, who was in the lane, is said to have arrived while Harbinder Singh was being injured. Therefore, if this was corn:ct, the two injuries on Harbinder Singh must also have been inflicted in the lane outsid.:.\n\nSatwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye witness of the whole occurrence, was also not men- H tioned in the F.I.R. Suresh had, according to her, stabbed Hairbinder Singh on the right side of the chest at the door of the kitchen, ano, thereafter, Pandey was said to have attacked him.\n\nR. K. ~ANDE V. M. P. STATE (Beg, J.) 523\n\nAgain, we find that Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, daughters ofl Uttam Singh, have figured as eye witnesses of the whole occurrence including the stabbing of Harbinder s:ngh by the appellant. As already indicated, they are not mentioned in the F.I.R. as eye witnesses of the murder. This is also very significant in the present case. 'They have been mentioned only as witnesses of wrapping a chadar on the wound of Harbinder Singh who was then said to be lying in the lane after the occurrence.\n\nIn order to explain how Harbinder Singh, said to have been attackd near the itchen of Uttam Singh on the first floor, was found lying m the lane m a pool of blood. the presecution version is that, after the attack with kr; ves by Suresh and the appellant, Harbinder Singh\n\nran and rushed down the steps into the lane. It was pointed out that, in view of the nature of two injuries sustained by Harbindcr Singh and the .medical evidence about them, it was not possible for Harbinder Singh either to have rushed down, or, in any case, to have 1T1ade a dying declaration. The injuries on Harbinder Singh found by Dr. S. C. Vishnoi were as follows :\n\n\"(i) An incised wound on the left side of the . chest placed anteriorly and -measuring 1 t'' x t\" x H\" deep. In the fifth intercostal space-closed to the lateral border of the left side of the sternum. It had clean cut and blood stains margins.\n\n(ii) An incised wound on the right side of back in the 8th intercostal space 2\" below the inferior angle of scapula.\n\nIt had measured 1\" x t\" x 1 \". It had clean cut and bloodsta!ns margins. There was found difficulty in probing through this wound\", ·\n\nThe Doctor said alYout the first injury :\n\n\"This injury had entered the cavity of the right ventrical.\n\nIt was a very serious injury. Right ventrical is an important part of the heart. General!y such an i?jury wmld result in an instantaneous. death. In.1ury to the nght ventncal and the paricardium had resulted in profused hemorrhage\".\n\nHe also said : Injury to the lobe ofl the right lung and the pleura as found iri this case will result in shock. Ordinarily such a injury would immediately be fatal\".\n\nThe main points for decision which emerged from the evidence 'in the case were : ·\n\n1. Where was Harbinder Singh stabbed?\n\n2. Who could have been the witness of the stabbing?\n\n3. Could the alleged eye. witnesses be believed?\n\n4. Could the dying declaration, said to hav1> been made to\n\nJop)nder Singh, be made the sole basis of t1ie conviction of the appellant under section 302/34 IPC if the evidence ofl alleged eye witnesses was to be discarded?\n\nAs regards the place where the stabbing took place, the High Court had itself felt highly dissatisfied with the manner in which the case was investigated. The site plans do not show any place where the blood was found. If blood marks had been shown and blood had been taken from spots where it had. fallen, it would have afforded very valuable evidence on the question whether any stabbing of Harbinder Singh did take place at door of the kitchen and whethcr he ran after that.\n\nThe &ite plans did not show even where the kitchen was. There: fore, we cannot know, by looking at these, whether the thre~ ladies, who are alleged to be eye witnesses at the trial, could have seen the occurrence in the room in which Uttam Singh was injured a1; well as at the door of the kitchen. Taking all the relevant evidence on this point into account, it is far more likely that, as the Sessions' Judge had guessed, the deceased had been stabbed by Suresh twice in the Jane, probably opee from the front and again while he fell or was trying to run away. He could not have moved farfrom the scene where he was stabbed. The High Court's reasons to dislodge this inference are insufficient.\n\nAs regards the second and third points, we are unable to give credence to the version of the three alleged eye witnesses as they were not mentioned as eye witnesses in, the F.I.R. made in Ce circumstances indicated above. ,\n\nLastly, the alleged dying declaration is, also not mentioned in the F.I.R. On the other hand, the F.I.R., mentions Joginder Singh, who tried to prove the dying declaration as an eye witness.\n\nIt may be pointed out that the charge against the appellant for offences under Section 302/34 I.P.C. is also defective inasmuch as\n\nit shows that either the appellant \"or some other person\" committed F' 'the murder. It does not show how or even mention that the appellant r acted in concert with anyone else. However, no grievance has been , made of any defect in the charge or any prejudice to the appellant from it. We therefore, ignore it. ,\n\nIt may also be mentioned that the' High Court --- itself recorded the following finding :\n\n\"All the eye-witnesses have admitted that the four accused did not come together at the same time in the room where !:he incident happened. Suresh Kumar came in that room first, Ramesh Kumar then entered the room and some time aflter they were followed by Mulkraj and Ram Kumar\n\nhad G\n\nPandey. There iJ nothing to show that there was a pre-con- H cert between the four accused to commit any particular offence in the room. It appears thaf the whole inc; ident took ~1n\n\nugly and unexpected turn and the most unfortanate result\n\nA was that Harbinder Singh was killed. We are of the view that the trial Court was right in reaching the conclusion that Ram Kumar Pandey and Suresh Kumar were individually\n\nresponsible for their acts\".\n\nIt is difficult, after this findi'I!i, to follow the reasoning of the High Court in coming to the conclusion that the appellant was guilty of an 8 offence punishable under Section 302/34 I.P.C.\n\nConsequently, we allow this appeal and set aside the conviction and sentence of the appellant under Section 302/34 I.P.C. If the appellant has already served the sentence awarded under Section 324 I.P.C., as .is stated .on his behalf, he will be released forthwith.\n\nV.M.K.\n\nAppeal allowed.", "total_entities": 108, "entities": [{"text": "RAM KUMAR PANDE", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "Ramesh Kumar Ahuja", "offset_not_found": false}}, {"text": "THE STATE OF MADHYA PRADESH", "label": "RESPONDENT", "start_char": 17, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "February 11, 1975", "label": "DATE", "start_char": 45, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "RAM KUMAR PANDE\n\nTHE STATE OF MADHYA PRADESH February 11, 1975\n\n[M. H. BEG AND A. ALAGIRISWAMI, JJ.]"}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 65, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI, JJ.", "label": "JUDGE", "start_char": 79, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "s. 11", "label": "PROVISION", "start_char": 264, "end_char": 269, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court (Enlargement of CKimina/ Appellate Jurisdiction) Act, 1970-", "label": "COURT", "start_char": 282, "end_char": 355, "source": "ner", "metadata": {"in_sentence": "Supreme Court (Enlargement of CKimina/ Appellate Jurisdiction) Act, 1970-\n\nAquittal set aside an~ sentence of life imprisonment imposed-Certificate of High Court for appealtng to Supreme Court not necessary."}}, {"text": "s. 307", "label": "PROVISION", "start_char": 546, "end_char": 552, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 553, "end_char": 558, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 603, "end_char": 609, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 614, "end_char": 619, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.324", "label": "PROVISION", "start_char": 724, "end_char": 729, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s.302", "label": "PROVISION", "start_char": 931, "end_char": 936, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s.1", "label": "PROVISION", "start_char": 2352, "end_char": 2355, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302134", "label": "PROVISION", "start_char": 2944, "end_char": 2953, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2954, "end_char": 2959, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act", "label": "STATUTE", "start_char": 3177, "end_char": 3243, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "1st May, 1971", "label": "DATE", "start_char": 3415, "end_char": 3428, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated the 1st May, 1971 of the Madhya Pradesh High Court in Crl."}}, {"text": "R. K. Bhatt", "label": "LAWYER", "start_char": 3510, "end_char": 3521, "source": "ner", "metadata": {"in_sentence": "2-470SCI/75 '\n\nR. K. Bhatt for the appellant."}}, {"text": "Ram Punjwani", "label": "LAWYER", "start_char": 3542, "end_char": 3554, "source": "ner", "metadata": {"in_sentence": "Ram Punjwani,, H. S. Parihar and/. N. Shroff, for the respondent."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 3557, "end_char": 3570, "source": "ner", "metadata": {"in_sentence": "Ram Punjwani,, H. S. Parihar and/. N. Shroff, for the respondent."}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 3577, "end_char": 3586, "source": "ner", "metadata": {"in_sentence": "Ram Punjwani,, H. S. Parihar and/. N. Shroff, for the respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 3653, "end_char": 3656, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J. The sole appellant Ram Kumar Pandoy, aged 45 ."}}, {"text": "Ram Kumar Pandoy", "label": "PETITIONER", "start_char": 3680, "end_char": 3696, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J. The sole appellant Ram Kumar Pandoy, aged 45 .", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "Suresh Kumar", "label": "OTHER_PERSON", "start_char": 3740, "end_char": 3752, "source": "ner", "metadata": {"in_sentence": "years, was tried tog1ether with Suresh Kumar aged 20 years, and Mulkra1, aged 45 years, aiud Ramesh Kumar, aged 17 years, on two chiarges framed against him.", "canonical_name": "Suresh Kumar"}}, {"text": "Ramesh Kumar", "label": "PETITIONER", "start_char": 3801, "end_char": 3813, "source": "ner", "metadata": {"in_sentence": "years, was tried tog1ether with Suresh Kumar aged 20 years, and Mulkra1, aged 45 years, aiud Ramesh Kumar, aged 17 years, on two chiarges framed against him.", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "Raipur", "label": "GPE", "start_char": 3941, "end_char": 3947, "source": "ner", "metadata": {"in_sentence": "These were : \"Firstly; That you on or about the 23rd day of March 1970 at Raipur, did an act, to wit, hit Uttam Singh with a knife with such intention or knowledge and under such circumstances, that if by that act, you had csed the death of Uttam Singh you would have been guilty of murder and that you caused grievous hurt to Uttam Singh by the said a::t and that you thereby committed an offence, punishable undtr Section 307 l.P.C. and; Secondly : That at the said time and place, you or some other persons did commit murde~ by intentionally or knowlingly causing the death of Harbinder Singh and the said act was da,1e in furtherance of the common intention of 'all and thereby committed."}}, {"text": "Uttam Singh", "label": "OTHER_PERSON", "start_char": 3973, "end_char": 3984, "source": "ner", "metadata": {"in_sentence": "These were : \"Firstly; That you on or about the 23rd day of March 1970 at Raipur, did an act, to wit, hit Uttam Singh with a knife with such intention or knowledge and under such circumstances, that if by that act, you had csed the death of Uttam Singh you would have been guilty of murder and that you caused grievous hurt to Uttam Singh by the said a::t and that you thereby committed an offence, punishable undtr Section 307 l.P.C. and; Secondly : That at the said time and place, you or some other persons did commit murde~ by intentionally or knowlingly causing the death of Harbinder Singh and the said act was da,1e in furtherance of the common intention of 'all and thereby committed.", "canonical_name": "Utta.m Singh"}}, {"text": "Section 307", "label": "PROVISION", "start_char": 4283, "end_char": 4294, "source": "regex", "metadata": {"statute": null}}, {"text": "Harbinder Singh", "label": "PETITIONER", "start_char": 4447, "end_char": 4462, "source": "ner", "metadata": {"in_sentence": "These were : \"Firstly; That you on or about the 23rd day of March 1970 at Raipur, did an act, to wit, hit Uttam Singh with a knife with such intention or knowledge and under such circumstances, that if by that act, you had csed the death of Uttam Singh you would have been guilty of murder and that you caused grievous hurt to Uttam Singh by the said a::t and that you thereby committed an offence, punishable undtr Section 307 l.P.C. and; Secondly : That at the said time and place, you or some other persons did commit murde~ by intentionally or knowlingly causing the death of Harbinder Singh and the said act was da,1e in furtherance of the common intention of 'all and thereby committed.", "canonical_name": "Harbinder\n\nSingh"}}, {"text": "Section 302", "label": "PROVISION", "start_char": 4588, "end_char": 4599, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 4610, "end_char": 4620, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4628, "end_char": 4645, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mulkraj", "label": "PETITIONER", "start_char": 4716, "end_char": 4723, "source": "ner", "metadata": {"in_sentence": "Suresh Kumar, Mulkraj, and Ramesh Kumar, were accused of offences punishable under Sections 307 /114 and Section 302 l'ead with Section 34 and 114 Indian Penal Code.", "canonical_name": "Mulkraj Ahuja"}}, {"text": "Sections 307", "label": "PROVISION", "start_char": 4785, "end_char": 4797, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 302", "label": "PROVISION", "start_char": 4807, "end_char": 4818, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34 and 114", "label": "PROVISION", "start_char": 4830, "end_char": 4848, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4849, "end_char": 4866, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sessions' Judge of Raipur", "label": "COURT", "start_char": 4872, "end_char": 4897, "source": "ner", "metadata": {"in_sentence": "The Sessions' Judge of Raipur, who had tried the case, found Suresh Kumar guilty of the murder by stabbing of' Harbinder Singh, aged about 16 yeai:m, and sentenced him to lifo imprisonment."}}, {"text": "Section 324", "label": "PROVISION", "start_char": 5093, "end_char": 5104, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5105, "end_char": 5110, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ramesh", "label": "PETITIONER", "start_char": 5279, "end_char": 5285, "source": "ner", "metadata": {"in_sentence": "He also acquitted the accused Ramesh and M:ulkraj of aD charges levelled against him.", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "ulkraj", "label": "PETITIONER", "start_char": 5292, "end_char": 5298, "source": "ner", "metadata": {"in_sentence": "He also acquitted the accused Ramesh and M:ulkraj of aD charges levelled against him.", "canonical_name": "Mulkraj Ahuja"}}, {"text": "State of Madhya Pradesh", "label": "ORG", "start_char": 5340, "end_char": 5363, "source": "ner", "metadata": {"in_sentence": "The State of Madhya Pradesh appealed agains~ the acquittal of the appellant Roam Kumar Pandey of the charge under Section 302134 l.P.C., and of Mulkraj a1.1d Ramesh Kumar of oal.l charges."}}, {"text": "Roam Kumar Pandey", "label": "PETITIONER", "start_char": 5412, "end_char": 5429, "source": "ner", "metadata": {"in_sentence": "The State of Madhya Pradesh appealed agains~ the acquittal of the appellant Roam Kumar Pandey of the charge under Section 302134 l.P.C., and of Mulkraj a1.1d Ramesh Kumar of oal.l charges.", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "Section 302134", "label": "PROVISION", "start_char": 5450, "end_char": 5464, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Mulkraj", "label": "PETITIONER", "start_char": 5480, "end_char": 5487, "source": "ner", "metadata": {"in_sentence": "The State of Madhya Pradesh appealed agains~ the acquittal of the appellant Roam Kumar Pandey of the charge under Section 302134 l.P.C., and of Mulkraj a1.1d Ramesh Kumar of oal.l charges.", "canonical_name": "Mulkraj Ahuja"}}, {"text": "Section 302", "label": "PROVISION", "start_char": 5596, "end_char": 5607, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Ram Kumar Pandy", "label": "PETITIONER", "start_char": 5782, "end_char": 5797, "source": "ner", "metadata": {"in_sentence": "The High Court also allowed the State's appeal against the acquittal of Ram Kumar Pandy for injuries caused to Harbinder Singh, and, convictrilg him under Section\n\n302/34 l.P.C., it sentenced him to life irnprisionment.", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "Section\n\n302", "label": "PROVISION", "start_char": 5865, "end_char": 5877, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Section 323", "label": "PROVISION", "start_char": 5987, "end_char": 5998, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5999, "end_char": 6004, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ramesh Kumar Ahuja", "label": "PETITIONER", "start_char": 6153, "end_char": 6171, "source": "ner", "metadata": {"in_sentence": "It upheld the acquittal of Ramesh Kumar Ahuja of •all charges. ·", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "Article 134(1)(c)", "label": "PROVISION", "start_char": 6277, "end_char": 6294, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970", "label": "STATUTE", "start_char": 6389, "end_char": 6461, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 302", "label": "PROVISION", "start_char": 6610, "end_char": 6621, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Section 324", "label": "PROVISION", "start_char": 6926, "end_char": 6937, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6938, "end_char": 6943, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 302", "label": "PROVISION", "start_char": 7006, "end_char": 7017, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7021, "end_char": 7026, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Uttam Singh", "label": "WITNESS", "start_char": 7999, "end_char": 8010, "source": "ner", "metadata": {"in_sentence": "The prosecution case, as set out in the First Information Report was: Uttam Singh, PW 1, residing arGanj Parao, on the first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Utta.m Singh had been quarrelling with members of his family."}}, {"text": "23-3-1970", "label": "DATE", "start_char": 8092, "end_char": 8101, "source": "ner", "metadata": {"in_sentence": "The prosecution case, as set out in the First Information Report was: Uttam Singh, PW 1, residing arGanj Parao, on the first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Utta.m Singh had been quarrelling with members of his family."}}, {"text": "Suresh Ahuja", "label": "OTHER_PERSON", "start_char": 8140, "end_char": 8152, "source": "ner", "metadata": {"in_sentence": "The prosecution case, as set out in the First Information Report was: Uttam Singh, PW 1, residing arGanj Parao, on the first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Utta.m Singh had been quarrelling with members of his family.", "canonical_name": "Suresh Kumar"}}, {"text": "Utta.m Singh", "label": "OTHER_PERSON", "start_char": 8217, "end_char": 8229, "source": "ner", "metadata": {"in_sentence": "The prosecution case, as set out in the First Information Report was: Uttam Singh, PW 1, residing arGanj Parao, on the first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Utta.m Singh had been quarrelling with members of his family.", "canonical_name": "Utta.m Singh"}}, {"text": "Mulkraj Ahuja", "label": "PETITIONER", "start_char": 8509, "end_char": 8522, "source": "ner", "metadata": {"in_sentence": "At this stage, the landl'Ord Mulkraj Ahuja, acc01)lpanied by the appellant Ram Kumar Pandey, who lives with his fumily in a side .room on the ground floor, entered and immediately gave him a blow on his eye-brow.", "canonical_name": "Mulkraj Ahuja"}}, {"text": "Ram Kumar Pandey", "label": "PETITIONER", "start_char": 8555, "end_char": 8571, "source": "ner", "metadata": {"in_sentence": "At this stage, the landl'Ord Mulkraj Ahuja, acc01)lpanied by the appellant Ram Kumar Pandey, who lives with his fumily in a side .room on the ground floor, entered and immediately gave him a blow on his eye-brow.", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "Uttam Sirrgh", "label": "OTHER_PERSON", "start_char": 8719, "end_char": 8731, "source": "ner", "metadata": {"in_sentence": "As Uttam Sirrgh got up, the appellant struck him with a knife from behind.", "canonical_name": "Utta.m Singh"}}, {"text": "Pandey", "label": "OTHER_PERSON", "start_char": 8806, "end_char": 8812, "source": "ner", "metadata": {"in_sentence": "Mulkraj asked Pandey to run down-stairs."}}, {"text": "Suresh", "label": "OTHER_PERSON", "start_char": 9001, "end_char": 9007, "source": "ner", "metadata": {"in_sentence": "At this point, Suresh, son of Mulkraj, .", "canonical_name": "Suresh Kumar"}}, {"text": "Saudager Shah", "label": "OTHER_PERSON", "start_char": 9134, "end_char": 9147, "source": "ner", "metadata": {"in_sentence": "Uttam Singh saw Harbinder Singh lying near the house of Saudager Shah with an injury on his chest which was bleeding profusely."}}, {"text": "Gurcharan Singh", "label": "OTHER_PERSON", "start_char": 9262, "end_char": 9277, "source": "ner", "metadata": {"in_sentence": "Harbinder Singh was carried to a hospital on a cart and Gurcharan Singh telephoned the police."}}, {"text": "Joginder Singh", "label": "OTHER_PERSON", "start_char": 9301, "end_char": 9315, "source": "ner", "metadata": {"in_sentence": "Joginder Singh also came while the injuries were being inflicted.", "canonical_name": "Joginder Singh"}}, {"text": "Amarjit Kaur", "label": "OTHER_PERSON", "start_char": 9391, "end_char": 9403, "source": "ner", "metadata": {"in_sentence": "Uttam Singh's daughters Amarjit Kaur and Taranjit Kaur saw Uttarn Singh wrapping a chadar on the wound of Harbinder Singh."}}, {"text": "Taranjit Kaur", "label": "OTHER_PERSON", "start_char": 9408, "end_char": 9421, "source": "ner", "metadata": {"in_sentence": "Uttam Singh's daughters Amarjit Kaur and Taranjit Kaur saw Uttarn Singh wrapping a chadar on the wound of Harbinder Singh."}}, {"text": "Uttarn Singh", "label": "OTHER_PERSON", "start_char": 9426, "end_char": 9438, "source": "ner", "metadata": {"in_sentence": "Uttam Singh's daughters Amarjit Kaur and Taranjit Kaur saw Uttarn Singh wrapping a chadar on the wound of Harbinder Singh.", "canonical_name": "Utta.m Singh"}}, {"text": "Raj Jaggi", "label": "OTHER_PERSON", "start_char": 9490, "end_char": 9499, "source": "ner", "metadata": {"in_sentence": "Raj Jaggi had seen Harbinder\n\nSingh falling down."}}, {"text": "Harbinder\n\nSingh", "label": "PETITIONER", "start_char": 9509, "end_char": 9525, "source": "ner", "metadata": {"in_sentence": "Raj Jaggi had seen Harbinder\n\nSingh falling down.", "canonical_name": "Harbinder\n\nSingh"}}, {"text": "Police Station Ganj", "label": "ORG", "start_char": 9766, "end_char": 9785, "source": "ner", "metadata": {"in_sentence": "The above mentioned First Information Report was lodge:d at Police Station Ganj on 23-3-1970 at 9.15 p.m. The time of this incident is stated to be 5 p.m. The only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh."}}, {"text": "Taranjit Kaur", "label": "WITNESS", "start_char": 9976, "end_char": 9989, "source": "ner", "metadata": {"in_sentence": "The two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.LR."}}, {"text": "Amarjit Kaur", "label": "WITNESS", "start_char": 10001, "end_char": 10013, "source": "ner", "metadata": {"in_sentence": "The two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.LR."}}, {"text": "Harbinder1 Singh", "label": "PETITIONER", "start_char": 10444, "end_char": 10460, "source": "ner", "metadata": {"in_sentence": "It seems inconceivable that by 9.15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder1 Singh.", "canonical_name": "Harbinder\n\nSingh"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 11061, "end_char": 11071, "source": "regex", "metadata": {"statute": null}}, {"text": "Joginder Singh", "label": "WITNESS", "start_char": 11147, "end_char": 11161, "source": "ner", "metadata": {"in_sentence": "Even Joginder Singh, PW 8, was not an eye witness of the occurrence."}}, {"text": "Pappi", "label": "OTHER_PERSON", "start_char": 11469, "end_char": 11474, "source": "ner", "metadata": {"in_sentence": "He deposed that, when he asked Pappi\n\nwhat had happened, Pappi had stated that Suresh and Pandey had F injured him."}}, {"text": "rbinder Singh", "label": "PETITIONER", "start_char": 11792, "end_char": 11805, "source": "ner", "metadata": {"in_sentence": "Uttam Singh did not mention there that any dying declaration, indicating that the appellant had also injured Harbinder Singh, was made by Ha:rbinder Singh.", "canonical_name": "Harbinder\n\nSingh"}}, {"text": "G Joginder Sin,::h", "label": "OTHER_PERSON", "start_char": 12010, "end_char": 12028, "source": "ner", "metadata": {"in_sentence": "Indeed, according to the version in the F.I.R., G Joginder Sin,::h, who was in the lane, is said to have arrived while Harbinder Singh was being injured."}}, {"text": "Satwant Kaur", "label": "WITNESS", "start_char": 12237, "end_char": 12249, "source": "ner", "metadata": {"in_sentence": "Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye witness of the whole occurrence, was also not men- H tioned in the F.I.R. Suresh had, according to her, stabbed Hairbinder Singh on the right side of the chest at the door of the kitchen, ano, thereafter, Pandey was said to have attacked him."}}, {"text": "F.I.R. Suresh", "label": "OTHER_PERSON", "start_char": 12381, "end_char": 12394, "source": "ner", "metadata": {"in_sentence": "Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye witness of the whole occurrence, was also not men- H tioned in the F.I.R. Suresh had, according to her, stabbed Hairbinder Singh on the right side of the chest at the door of the kitchen, ano, thereafter, Pandey was said to have attacked him."}}, {"text": "Hairbinder Singh", "label": "OTHER_PERSON", "start_char": 12426, "end_char": 12442, "source": "ner", "metadata": {"in_sentence": "Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye witness of the whole occurrence, was also not men- H tioned in the F.I.R. Suresh had, according to her, stabbed Hairbinder Singh on the right side of the chest at the door of the kitchen, ano, thereafter, Pandey was said to have attacked him."}}, {"text": "R. K.", "label": "JUDGE", "start_char": 12558, "end_char": 12563, "source": "ner", "metadata": {"in_sentence": "R. K. ~ANDE V. M. P. STATE (Beg, J.) 523\n\nAgain, we find that Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, daughters ofl Uttam Singh, have figured as eye witnesses of the whole occurrence including the stabbing of Harbinder s:ngh by the appellant."}}, {"text": "Harbinder", "label": "PETITIONER", "start_char": 12772, "end_char": 12781, "source": "ner", "metadata": {"in_sentence": "R. K. ~ANDE V. M. P. STATE (Beg, J.) 523\n\nAgain, we find that Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, daughters ofl Uttam Singh, have figured as eye witnesses of the whole occurrence including the stabbing of Harbinder s:ngh by the appellant.", "canonical_name": "Harbinder\n\nSingh"}}, {"text": "Harbinder Singh", "label": "PETITIONER", "start_char": 13366, "end_char": 13381, "source": "ner", "metadata": {"in_sentence": "the presecution version is that, after the attack with kr; ves by Suresh and the appellant, Harbinder Singh\n\nran and rushed down the steps into the lane.", "canonical_name": "Harbinder\n\nSingh"}}, {"text": "Harbindcr Singh", "label": "PETITIONER", "start_char": 13504, "end_char": 13519, "source": "ner", "metadata": {"in_sentence": "It was pointed out that, in view of the nature of two injuries sustained by Harbindcr Singh and the .medical evidence about them, it was not possible for Harbinder Singh either to have rushed down, or, in any case, to have 1T1ade a dying declaration.", "canonical_name": "Harbinder\n\nSingh"}}, {"text": "S. C. Vishnoi", "label": "OTHER_PERSON", "start_char": 13724, "end_char": 13737, "source": "ner", "metadata": {"in_sentence": "The injuries on Harbinder Singh found by Dr. S. C. Vishnoi were as follows :\n\n\"(i) An incised wound on the left side of the ."}}, {"text": "Jop)nder Singh", "label": "OTHER_PERSON", "start_char": 15048, "end_char": 15062, "source": "ner", "metadata": {"in_sentence": "Could the dying declaration, said to hav1> been made to\n\nJop)nder Singh, be made the sole basis of t1ie conviction of the appellant under section 302/34 IPC if the evidence ofl alleged eye witnesses was to be discarded?", "canonical_name": "Joginder Singh"}}, {"text": "section 302", "label": "PROVISION", "start_char": 15129, "end_char": 15140, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 15144, "end_char": 15147, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 302", "label": "PROVISION", "start_char": 16884, "end_char": 16895, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 16899, "end_char": 16904, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ram Kumar", "label": "PETITIONER", "start_char": 17610, "end_char": 17619, "source": "ner", "metadata": {"in_sentence": "Suresh Kumar came in that room first, Ramesh Kumar then entered the room and some time aflter they were followed by Mulkraj and Ram Kumar\n\nhad G\n\nPandey.", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "had G", "label": "OTHER_PERSON", "start_char": 17621, "end_char": 17626, "source": "ner", "metadata": {"in_sentence": "Suresh Kumar came in that room first, Ramesh Kumar then entered the room and some time aflter they were followed by Mulkraj and Ram Kumar\n\nhad G\n\nPandey."}}, {"text": "Ram Kumar Pandey", "label": "PETITIONER", "start_char": 17991, "end_char": 18007, "source": "ner", "metadata": {"in_sentence": "We are of the view that the trial Court was right in reaching the conclusion that Ram Kumar Pandey and Suresh Kumar were individually\n\nresponsible for their acts\".", "canonical_name": "Ramesh Kumar Ahuja"}}, {"text": "Section 302", "label": "PROVISION", "start_char": 18246, "end_char": 18257, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 18261, "end_char": 18266, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 302", "label": "PROVISION", "start_char": 18369, "end_char": 18380, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 18384, "end_char": 18389, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 324", "label": "PROVISION", "start_char": 18454, "end_char": 18465, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 18466, "end_char": 18471, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1975_3_526_530_EN", "year": 1975, "text": "SHIV PRASAD A\n\nDURGA PRASAD & ANR.\n\nFebruary 12, 1975 [P. N. BHAGwAn, A. C. GuPn AND N. L. UNTWAU.A, JJ.J\n\nCode of Civil Procedure, 1908~0. 21, rr. 89(2) and 90-Scope of.\n\n. B\n\nRi:le 89(2) of 0. 2.J ~.P.C. states that where a person applies under r. 90 to set aside the sale of his immovable property, he shall not unless he withdraws his application, be entitled to make or prosecute an appliation under the Rule.\n\nThe. appellant in the execution of his decree, pur•:hased certain prope!'ties of the Judgment debtor. Reopondent no. 1 who had purchased the properties earlier thereupon filed an application on December 12, 1967 under 0. 21 r. 90 for , etting aside the sale. Later, he filed an application under\n\n0. 21 r. 89 stating that he \"withdraws the application under O. 21. r. 90 and docs not want to C press the same\". The Court, however, did not record an order of withdrawal of the.respondent no. l's application but posted it for directions regarding service of notice etc. and thereafter respondent no. 1 took steps for service of notice on the appellant and respondent no. 2. Eventually on March 9, 1968 respondent no. l made an appltcation that he did not wa!1t to prosecute his application filed U11der 0. 21 r. 90.\n\nThe Court accordingly dismissed it.\n\nThe Execution Court thereafter allowed application under O. 21 r. 89 and set aside the sale.\n\nThe appellant's appeal against this order was 'dismissed by the n High Court.\n\nIn appeal to this Ccurt it was contended that respondent no. 1 was not entitled to make an application l)nder 0. 21 r. 89 unless he effectively withdrew his application under 0. 21 r. 90 and an order of the Court to that effect was passed.\n\nDismissing the appeal,\n\nHELD: l(a) The words used in the sub-rule are 'make or prosecute.' If it E were to be held that the applicant is not entitled merely to prosecute his application under r. 89 unless he withdraws his application under r. 90, then, the word 'make' would become redundant. In order to bring about the true intention of the Legislature, effect must be given to both the words.\n\n[529C] ·\n\n(b) If a person has first applied under r. 90 to set aside the sale, then, unless, he withdraws his application, he is not entitled to make and prosecute an application under r. 89. The application even if made, will be deemed to have been made only on withdrawal of the previous application. If, however, a p•; rson has F filed an application under r. 89 first and thereafter another application under r. 90 he will not be allowed to prosecute the former unless he withdrew the latter.\n\n[529D]\n\n(c) Every applicant has a right to unconditionally withdraw his a:Pplication and his unilateral act in that behalf ii sufficient. No order of the Court is necessary permitting him to withdraw his application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the Court. The act of withdrawal is complete as soon as an appli- G <.ant intimates the Court that he withdraws the application.\n\n[530B-C]\n\nIn the instant case respondent no. 1 had withdrawn hi' application not only hy mentioning in his application under r. 89 that he was withdrawing his application under r. 90 but also by filing a separate application to that effect. 'The steps taken by him did not nullify the withdrawal made by respondent no. l of his application under r. 90 and did not make the withdrawal merely on that account ineffective. It was only after respondent no. 1 had intimated that he was not pursuing his application under r. 90 that a formal order recording its dismissal was H made. This order .of the Court had the effect of merely recording the withdrawal of the application under r. 90.\n\nEven without that order, the withdrnwal was effective on that date.\n\n[530CE]\n\nC1v1L APPELLATE JuRJSDICT!ON : Civil Appeal No. 998 of 1971.\n\nAppeals by Speci>al leave from the Judgment & Order dated the 20th January, 1971 of the Allahabad High Court in F.A.No. 443 of 1968.\n\nHardayal Hardy, Janardan Sharma a'ad Jitendra Sharma, for the 8 appellant.\n\nSultan Singh and R. P. Agarwala, for the respondents.\n\nTh?. Judgment of the Court was delivered by\n\nUNTWAL!A, J. In this appeal by special leave of this Court is involved the interpretation and true meaning of subrule (2) of Rule 89 of Order 21 of the Code of Civil Procedure, 1908-hereinafter called the Code.\n\nThe decreeholder is the appellant.\n\nThe first responde1,1t is the purchaser of a major portion of the property sold in execution of the appellant's decree against respondent no. 2.\n\nThe appellant had filed a suit in the 1year 1951 against the husband of respondent no. 2 for realiwtion of certain sums of money due on a Promisory note.\n\nThe suit was dismissed by the Trial Judge of Saharanpur.\n\nThe appellant filed First Appeal No. 12211954 in the Allahabad High Court.\n\nCertain properties belonging to the husband of respondent no.2 were directed to be attached before judgment by the High Court. In spite of the attachment, he sold the properties in two lots. The first lot was sold for a sum of Rs. 7,580/- on 30-7-1956 to 0'11e Smt. Subadhara Devi.\n\nThe remaini 1ag at1'ached properties were sold in the second lot to the first responder! on 30.11.57 for Rs. 70,0001.\n\nThe original defendant died during the pendency of tr.e first appeal in the High Court.\n\nHis widow was substituted.\n\nThe first appeal was allowed and tk suit was decreed against the substituted defendant respondent on 25.3.1966.\n\nThe appellant filed Executio1a No. 121-1967 in the Sahoaranpur Court for realization of Rs. 11,795/- the amount due under the decree, Rs. 3,528.1 Op. the costs in the suit and the appeal together with the costs of the execution.\n\nIn the said execution, the attached properties were sold and purchased by the appellant on 29 .11.1957 for Rs. 16,000/- with the leave of the Execution Court. The first-responrle!lt filed on 12.12.1967 an application under Order 21 Rule 90 of the Code for setti'ag the s•ale aside.\n\nThis application was registered as Miscellaneous Case No. 3/1967 in Execution Case No. 12/1967.\n\nThe period of 30 days from the date of sale expired during holidays.\n\nRespondent no. 1 on the re-opening date i.e. on 1.l.1968 instituted Miscellaneous Case No. 1/1968 by an application made under Order 21 Rule 89 of the Code.\n\nThe amount as was necessary to be deposited for the setting aside of the s•ale U'ader Rule 89 was deposited in the Execution Court by respondent No.1 In hi~ application under Order ?. 1 Rule 89 of the Code a statement was made by respondent no. 1 \"The applicant has also given an .application under Order 21 Rule 90 and the applicant withdraws the same.\" On the S'ame date, i.e. 0,1 1.1.1968 respondent no. 1 also filed a separate application stating therein that he had filed an application under Order 21 Rule 90 of the Code for cancellation of the auction held on 29-11-1967 which was\n\npending and that he had filed 01,1 application under Order 21 Rule 89 of the Code also.\n\nThe further statement was that the applicant \"now withdraws the application under Order 21, Rule 90, and does not want to press the same.\" A sum of Rs 2,0001by w>ay of security had been deposited by respondent no.1 while making that application.\n\nThe prayer in this petition was also for the retum of the said sum of money.\n\nIt appears, however, that the Court did not record an orde:r of withdrawal in Miscellaneous Case No. 3/1967. In the usual c:ourse that case was put up on 6.1.1968 when respondent no. 1 and his counsel\n\nwere present. A direction was given to do Pairevi for fresh s1rvice of notice on the opposite party, namely, the decree holder and the Judgment debtor.\n\nSteps were taken; but on 10.2.1968 it was found that service of notice on the Judgment debtor (opposite oarty !!lo.2) was not sufficient.\n\nOn that date further steps were taken by respon dent no.1 for service of notice on the opposite parties.\n\nEventu'ally on 9.3.1968 the Advocate for respondent no.1 made an endors1mein.t on the !Jack of the application filed under Order 21 Rule 90 of the Code : \"Sir, In view of application dated 1.1.68 in our proceeding No.l of 1968 the applicant does not want to prosecute it.\" It was only then that Miscellaiaeous Case No. 311957 was dismissed by Execution Court on 9.3.1968.\n\nMiscellaneous Oase No. 111\"68 proceeded to disposal.\n\nIn substance the only objection taken by the appellant to resist the said application was a plea of its non-maintainability in viw of the provision of law contained in sub-rule (2) of Rule 89. The Execution Court allowed the application of respondent nq._J under. Order 21 Rule 89 of the Code and set aside the sale.\n\nThe appellant's appeal against the said order was dismissed by a learned single Judge of the Allahabad High Court.\n\nOn grant of specral leave by this Court the present appeal was presented.\n\nAt the outset we may reject a >1ew plea taken by the appellant in this Court that the amount deposited by respondent no.1 was not sufficient, as pondage fee in accord>ance 'with Rules 365 and 371 framed by the Allahabad High Court was not deposited.\n\nWe did not examine the correctness of this poi'at as it involved investigation of new facts which for the first time could not be permitted in this Court.\n\nThe only question for determination in this appeal is whether the application of respondent no.I under Order 21 Rule 89 of the Code was not mai'atainable and liable to be dismissed as such, and whether it has wrongly been allowed by the Courts below.\n\nMr. Hardayal Hardy, leal'11ed counsel for the appellant, strenously contended that respondent no.1 was not entitled to make an application under Order 21 Rule 89 .of the Code unless he effectively withdraw his application under Order 21 Rule 90 and an order of the Court to that effect was passed. Counsel further submitted that instead of asking the Court to mah an order permitting the withdrawal of his application under Rule 90, on two dates he took steps to prosecute that application.\n\nUltimately the case was not proceeded with on 9-3-1968. In the eye of law, therefore, the application under Rule 89 should be\n\nI• I\n\nA deemed to have been filed only on 9-3-1968 on which date it was. hopelessly barred by limitation ..\n\nOn the correct interpretation of sub-rule (2) o.f Rule 89 and on determination of its true scope it will be noticed that on the fai:ts aud in the circumstances of this case respondent no. l's application under Rule 89 has rightly: been allowed.\n\nOrder 21 Rule 89(2) reads as follows :\n\n\"Where a person applies under Rule 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be eatitled to make or prosecute an application under this Rule.\"\n\nThe words used in the sub-rule are \"make or prosecute\". If it were to be held that the applicant is not entitled merely to prosecute his application under Rule 89 unless he withdraws his application under Rule 90, then the word \"make\" would become redundant. In order to bring about the true intention: of the Legislature, affect must be given to both the words. If a person has first applied under Rule 90 ta set aside the sale, . then, unless he withdraws his application, he is not entitled to make and prosecute an application under Rule 89. The application even if made will be deemed to have been made only on withdrawal of the previous application. If, however, a perscn has filed an application under Rule 89 first and thereafter another application under Rule 90, he will not be allowed to prosecute the former unless he withdrew the latter. \\ / ' Section 310A was added in the Code of 1882 by Act 5.of 1894.\n\nThis section corresponds to Order 21 Rule 89 of the Code of 1908.\n\nThe proviso to section 310A which corresponds to sub-rule (2) merely used the words \"he shall not be entitled to make an application under this section\". In the case of Rajendra Nath Haldar and others v. Nil~ ratan Mitter and others,(l) aa application under section 310A 0f the Code of 1882 was first made and on the followin_g day applicants presented an application under section 311 (corresponding to Order 21 Rule 90). In view of the proviso the application under section 3 lOA failed. The argument put forward on behalf of the applicants was that if an application under section 311 was filed after the filing of the application under section 310A the proviso did not apply.\n\nIt was rejected by the Bench consistin* of Petheram, q and Rampini, J. thus : \"We consider that the words 'he shall not be entitled to make an application under this'section\" in the proviso cannot mean merely \"he shall not be entitled to present an application\" _under the section,. but the word \"make\" here must mean \"carry on\" or \"prosecute.\". The Legislature, it appears, to make the position of law certain, added the words \"or prosecute\" after the word \"make\" in sub-rule (2) of Rule 89 of Order 21 of the Code.\n\nIn -our judgment, an application under Rule 89 validly made on the date of its presentation cannot be allowed to be prosecuted until' the subsequent application filed under Rule 90 is withdrawn. But it\n\n(l) I. L. R. 23, Calcutta, 958.\n\n.cannot be allowed to be made or be deemed to have been made unless the prior application filed under Rule 90 is withdrawn.\n\nEven on the interpretation of Rule 89 (2) which we have put W•e tll'e not prepared to accept the contention put forward on behalf ol' the appellant that an application under Rule 90 does not stand withdrawn until an order to that effect is recorded by the Court. The applicant merely has to convey tb the Court that he is withdrawing his application under Rule 90 which he had filed prior to the making of the appli- B cation under Rule 89. Thereupon he becomes entitled to make the latter applicati'On. Every applicant has. a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the C order of the Court. The act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application. Respondent no. 1 has clearly done so here not only by mentioning in his application under Rule 89 that he was withdrawing his application . under Rule 90 but also by filing a separate application to that effect,\n\nin which not mly the statement as to the withdrawal of the application under Rule 90 was made but a prayer for the refund of Rs 2,000 D was also made. The steps taken on behalf bf the respondent No. 1 in Miscellaneous Case No. 3/1967 even after the filing of Miscellaneous Case No. 1/1968 were clearly superfluous and of no effect. The steps taken did not nullify the withdrawal made by respondent no. l of his application under Rule 90 and did not make the withdrawal merely on that account ineffective. Even if any ambiguity was created by the taking of such steps, later on 9-3-1968 in clearest E language it was intimated on behalf of respondent no. 1 that he was not pursuing his application under Rule 90. It was only then that the Court made a f'Ormal order recording its dismissal. In our judgment on the facts and in the circumstances of this case, the urder ol' the Court made on 9-3-1968 had the effect of merely recording the withdrawal of the application unde:r Rule 90 which was already effectively made on 1-1-1968. Even without that order, the withdrawal was effec- F tive on that day.\n\nWe, therefore, hold that the applicati'On filed by respondent No. 1 under Order 21 Rule 89 of the Code has rightly been allowed. The appellant pursued his remedy even to this CXlurt on a mere technicality to grab the properties purchased by respondent no. 1 for a sum\n\nofl Rs. 70,000/- which the appellant had purchased along with other G portion of the property for a sum of Rs. 16,000/- only. The appeal is accordingly dismissed with costs in favour of respondent no. 1.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 55, "entities": [{"text": "SHIV PRASAD", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "SHIV PRASAD", "offset_not_found": false}}, {"text": "A\n\nDURGA PRASAD & ANR", "label": "RESPONDENT", "start_char": 12, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "DURGA PRASAD & ANR", "offset_not_found": false}}, {"text": "February 12, 1975", "label": "DATE", "start_char": 36, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "February 12, 1975 [P. N. BHAGwAn, A. C. GuPn AND N. L. UNTWAU.A, JJ.J\n\nCode of Civil Procedure, 1908~0."}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 107, "end_char": 136, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 12, 1967", "label": "DATE", "start_char": 610, "end_char": 627, "source": "ner", "metadata": {"in_sentence": "1 who had purchased the properties earlier thereupon filed an application on December 12, 1967 under 0."}}, {"text": "March 9, 1968", "label": "DATE", "start_char": 1103, "end_char": 1116, "source": "ner", "metadata": {"in_sentence": "Eventually on March 9, 1968 respondent no."}}, {"text": "Hardayal Hardy", "label": "LAWYER", "start_char": 4013, "end_char": 4027, "source": "ner", "metadata": {"in_sentence": "Hardayal Hardy, Janardan Sharma a'ad Jitendra Sharma, for the 8 appellant.", "canonical_name": "Hardayal Hardy"}}, {"text": "Janardan Sharma", "label": "LAWYER", "start_char": 4029, "end_char": 4044, "source": "ner", "metadata": {"in_sentence": "Hardayal Hardy, Janardan Sharma a'ad Jitendra Sharma, for the 8 appellant."}}, {"text": "Jitendra Sharma", "label": "LAWYER", "start_char": 4050, "end_char": 4065, "source": "ner", "metadata": {"in_sentence": "Hardayal Hardy, Janardan Sharma a'ad Jitendra Sharma, for the 8 appellant."}}, {"text": "Sultan Singh", "label": "LAWYER", "start_char": 4089, "end_char": 4101, "source": "ner", "metadata": {"in_sentence": "Sultan Singh and R. P. Agarwala, for the respondents."}}, {"text": "R. P. Agarwala", "label": "LAWYER", "start_char": 4106, "end_char": 4120, "source": "ner", "metadata": {"in_sentence": "Sultan Singh and R. P. Agarwala, for the respondents."}}, {"text": "UNTWAL!A", "label": "JUDGE", "start_char": 4189, "end_char": 4197, "source": "ner", "metadata": {"in_sentence": "Judgment of the Court was delivered by\n\nUNTWAL!A, J. In this appeal by special leave of this Court is involved the interpretation and true meaning of subrule (2) of Rule 89 of Order 21 of the Code of Civil Procedure, 1908-hereinafter called the Code."}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 4341, "end_char": 4370, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Trial Judge of Saharanpur", "label": "COURT", "start_char": 4768, "end_char": 4793, "source": "ner", "metadata": {"in_sentence": "The suit was dismissed by the Trial Judge of Saharanpur."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4849, "end_char": 4869, "source": "ner", "metadata": {"in_sentence": "12211954 in the Allahabad High Court."}}, {"text": "30-7-1956", "label": "DATE", "start_char": 5114, "end_char": 5123, "source": "ner", "metadata": {"in_sentence": "7,580/- on 30-7-1956 to 0'11e Smt."}}, {"text": "Subadhara Devi", "label": "OTHER_PERSON", "start_char": 5138, "end_char": 5152, "source": "ner", "metadata": {"in_sentence": "Subadhara Devi."}}, {"text": "30.11.57", "label": "DATE", "start_char": 5247, "end_char": 5255, "source": "ner", "metadata": {"in_sentence": "on 30.11.57 for Rs."}}, {"text": "25.3.1966", "label": "DATE", "start_char": 5492, "end_char": 5501, "source": "ner", "metadata": {"in_sentence": "The first appeal was allowed and tk suit was decreed against the substituted defendant respondent on 25.3.1966."}}, {"text": "Sahoaranpur Court", "label": "COURT", "start_char": 5555, "end_char": 5572, "source": "ner", "metadata": {"in_sentence": "121-1967 in the Sahoaranpur Court for realization of Rs."}}, {"text": "29", "label": "DATE", "start_char": 5825, "end_char": 5827, "source": "ner", "metadata": {"in_sentence": "In the said execution, the attached properties were sold and purchased by the appellant on 29 .11.1957 for Rs."}}, {"text": ".11.1957", "label": "DATE", "start_char": 5828, "end_char": 5836, "source": "ner", "metadata": {"in_sentence": "In the said execution, the attached properties were sold and purchased by the appellant on 29 .11.1957 for Rs."}}, {"text": "Order 21 Rule 90", "label": "PROVISION", "start_char": 5957, "end_char": 5973, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21 Rule 89", "label": "PROVISION", "start_char": 6311, "end_char": 6327, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21 Rule 90", "label": "PROVISION", "start_char": 6641, "end_char": 6657, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21 Rule 90", "label": "PROVISION", "start_char": 6840, "end_char": 6856, "source": "regex", "metadata": {"statute": null}}, {"text": "29-11-1967", "label": "DATE", "start_char": 6909, "end_char": 6919, "source": "ner", "metadata": {"in_sentence": "1 also filed a separate application stating therein that he had filed an application under Order 21 Rule 90 of the Code for cancellation of the auction held on 29-11-1967 which was\n\npending and that he had filed 01,1 application under Order 21 Rule 89 of the Code also."}}, {"text": "Order 21 Rule 89", "label": "PROVISION", "start_char": 6984, "end_char": 7000, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21, Rule 90", "label": "PROVISION", "start_char": 7102, "end_char": 7119, "source": "regex", "metadata": {"statute": null}}, {"text": "6.1.1968", "label": "DATE", "start_char": 7499, "end_char": 7507, "source": "ner", "metadata": {"in_sentence": "In the usual c:ourse that case was put up on 6.1.1968 when respondent no."}}, {"text": "s1", "label": "PROVISION", "start_char": 7607, "end_char": 7609, "source": "regex", "metadata": {"statute": null}}, {"text": "10.2.1968", "label": "DATE", "start_char": 7725, "end_char": 7734, "source": "ner", "metadata": {"in_sentence": "Steps were taken; but on 10.2.1968 it was found that service of notice on the Judgment debtor (opposite oarty !!"}}, {"text": "9.3.1968", "label": "DATE", "start_char": 7960, "end_char": 7968, "source": "ner", "metadata": {"in_sentence": "Eventu'ally on 9.3.1968 the Advocate for respondent no.1 made an endors1mein.t on the !"}}, {"text": "Order 21 Rule 90", "label": "PROVISION", "start_char": 8068, "end_char": 8084, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21 Rule 89", "label": "PROVISION", "start_char": 8636, "end_char": 8652, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21 Rule 89", "label": "PROVISION", "start_char": 9391, "end_char": 9407, "source": "regex", "metadata": {"statute": null}}, {"text": "Hardayal Hardy", "label": "LAWYER", "start_char": 9544, "end_char": 9558, "source": "ner", "metadata": {"in_sentence": "Mr. Hardayal Hardy, leal'11ed counsel for the appellant, strenously contended that respondent no.1 was not entitled to make an application under Order 21 Rule 89 .of the Code unless he effectively withdraw his application under Order 21 Rule 90 and an order of the Court to that effect was passed.", "canonical_name": "Hardayal Hardy"}}, {"text": "Order 21 Rule 89", "label": "PROVISION", "start_char": 9685, "end_char": 9701, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21 Rule 90", "label": "PROVISION", "start_char": 9768, "end_char": 9784, "source": "regex", "metadata": {"statute": null}}, {"text": "9-3-1968", "label": "DATE", "start_char": 10078, "end_char": 10086, "source": "ner", "metadata": {"in_sentence": "Ultimately the case was not proceeded with on 9-3-1968."}}, {"text": "Order 21 Rule 89(2)", "label": "PROVISION", "start_char": 10514, "end_char": 10533, "source": "regex", "metadata": {"linked_statute_text": "Counsel further submitted that instead of asking the Court to mah an order permitting the withdrawal of his application under Rule", "statute": "Counsel further submitted that instead of asking the Court to mah an order permitting the withdrawal of his application under Rule"}}, {"text": "Section 310A", "label": "PROVISION", "start_char": 11617, "end_char": 11629, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21 Rule 89", "label": "PROVISION", "start_char": 11707, "end_char": 11723, "source": "regex", "metadata": {"statute": null}}, {"text": "section 310A", "label": "PROVISION", "start_char": 11761, "end_char": 11773, "source": "regex", "metadata": {"statute": null}}, {"text": "section 310A", "label": "PROVISION", "start_char": 12004, "end_char": 12016, "source": "regex", "metadata": {"statute": null}}, {"text": "section 311", "label": "PROVISION", "start_char": 12120, "end_char": 12131, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21 Rule 90", "label": "PROVISION", "start_char": 12150, "end_char": 12166, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12214, "end_char": 12223, "source": "regex", "metadata": {"statute": null}}, {"text": "section 311", "label": "PROVISION", "start_char": 12322, "end_char": 12333, "source": "regex", "metadata": {"statute": null}}, {"text": "section 310A", "label": "PROVISION", "start_char": 12386, "end_char": 12398, "source": "regex", "metadata": {"statute": null}}, {"text": "Petheram", "label": "JUDGE", "start_char": 12470, "end_char": 12478, "source": "ner", "metadata": {"in_sentence": "It was rejected by the Bench consistin* of Petheram, q and Rampini, J. thus : \"We consider that the words 'he shall not be entitled to make an application under this'section\" in the proviso cannot mean merely \"he shall not be entitled to present an application\" _under the section,."}}, {"text": "Rampini", "label": "JUDGE", "start_char": 12486, "end_char": 12493, "source": "ner", "metadata": {"in_sentence": "It was rejected by the Bench consistin* of Petheram, q and Rampini, J. thus : \"We consider that the words 'he shall not be entitled to make an application under this'section\" in the proviso cannot mean merely \"he shall not be entitled to present an application\" _under the section,."}}, {"text": "1-1-1968", "label": "DATE", "start_char": 15504, "end_char": 15512, "source": "ner", "metadata": {"in_sentence": "In our judgment on the facts and in the circumstances of this case, the urder ol' the Court made on 9-3-1968 had the effect of merely recording the withdrawal of the application unde:r Rule 90 which was already effectively made on 1-1-1968."}}, {"text": "Order 21 Rule 89", "label": "PROVISION", "start_char": 15660, "end_char": 15676, "source": "regex", "metadata": {"statute": null}}, {"text": "P.B.R.", "label": "RESPONDENT", "start_char": 16060, "end_char": 16066, "source": "ner", "metadata": {"in_sentence": "P.B.R.\n\nAppeal allowed."}}]}
{"document_id": "1975_3_531_536_EN", "year": 1975, "text": "MADAN GOPE\n\nTHE STATE OF WEST BENGAL\n\n. February 12, 1975\n\n[V. R. KRISHNA.IYER AND R. s. SARI<ARIA, JJ.]\n\n531'\n\nMaintenance of lntemal Sec1.l\"it)' Act, 1971, s. 3 (1 )-Order of detention for malntrnw; cr of public order-If can be justified as for maintenance of essential supplics-'S11111ggling' if can prejudice publ'c order-'Public Order', Sf:Ope of.\n\nThe petitioner was detained by an order made under s. 3 of the Maintenance of Internal Security A1t, 1971, to prevent him from acting in any manner preiudicial to the maintenance of public order, on two grounds. The activity which consti- C tu!ed the s-ubstratum of the first ground of detention was a case of inter-state smug- . gling of essential commodities. The othr facts mentioned, in addition to smuggling in the ground, are (a) that the detenu and h's associates had threatened the Home Guards who arrested them, and snatched away the seized commodities from the custody of the Hom~ Guards. and, (b) tlmt bis activity came within the purview of ss. 143/185/332/506, I.P.C. ands. 7(i)(a) (ii) of Act X of 1955.\n\nAllowing tl:c petition under Art. 32 challenging the order of detention,\n\nHELD: (1) Section 3(l)(a) of the Act confers power on the authority to detain a person if it is satisfied that such detention is necessary to prevent him from acting in a manner prejudicial to, ( i) the defence of India, the relation of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of Public Order, or (iii) the maintenance of supplies and services essential to the community.\n\nThe power can be exercised only on one' or more of the grounds enumerated, and if the exercise of the power is not, on the face of the order, correlated to any of these grounds or concerns a,:tivitie\"< r which are not germane to any of those grounds, such exercise would be vitiated for lack of jurisdiction. Further the satisfaction spoken of in s. 3 (!) which is the sine qua non for the exercise of power, is the subjective satisfaction of the au.thority which cannot be tested in court by objective standards. Ordinarily, therefore, the court cannot go behind the satisfaction expressed on the face of the order.\n\nThus, where the order ex facie is made with ii view to prevent an act prejudicial to the maintenance of public order, the detaining authority cannot be permitted to show that in fact the order was made to prevent an act prejudiced to ihe main tennnce of supplies and services essential to the life of the commu.nity.\n\n[534BG]\n\n(2) Ordinarily, smuggling is a ca.Jendestine activity and its concept is repugnant to what is public, But 1cases are conceivable where the act of smuggling may be accompanied by such violence or disorder that it throws out of gear the even tempo of the life of the 9ommunity in the locality or disturbs public tranquillity.\n\n[535F-H]\n\nIn the present case, there is no mention that the detenu or his associates were armed with any deadly weapons, or that their acts had caused panic and terror among the people of the locality. The incident was confined to the detenu and his associates on one hand and the home guards who checked them on the other.\n\nIt was not an activity which was prejudicial to the maintenance of public order.\n\nThe first ground of detention had, therefore, no real nexus with the maintenance of publk order.\n\n[536B-C]\n\n(3) The activity could at the most be said to be an activity affecting law and orde.r. The order cannot be justified on the ground that the activity was prcjudici:; l to the maintenance of su.pplies and services essential to the •community, because, the Court cannot go behind the subjective satisfaction of the detaining' authoritv as expressed in the detention order and permit it to justify its order on a ground different from the one menlfoned on the face nf the order.\n\nThe fact that the activities of the detenu constituted the various offences ment!.oned in the\n\nordr was only a conclusion drawn by the authorit)'.\n\n[536A-B, C-E]\n\n( 4) It could not be said that whenever any act is accompai ned by show of force or threat to any public servant entrusted with the maintenance of law and order, it must necessarily fall within the category of an act prejudicial to the main- :tenance of public order. In every case the broad tCllt to be applied is whether the act was of sud. a magnitude and gravity that it had disturbed the even tempo of the life of the community in the area and that, esentially, is a question of fact depending on the cirwmstances of each case.\n\n[536F-GJ\n\nlndradeo Mahato v. State of West Bengal, AIR 1973 SCC -4; Dr. Ram Mano/wr Lohia v. State of Bihar and Ors. [1966] 1, SCR 709 and Ram Ranjan Chaturjee v.\n\nThe State of Wts/ Bmfal. Writ Petition No. 476/74 decided on 22-1-75 ri:ferred ·to.\n\n(5) If one of the several grounds of detention is found to be irrelevant, the .order of detention shall stand vitiated, because, it cannot reasonably by predicated to what extent the irrelevant ground had influen:ed the subjective satisfaction of the detaining authority. [536E-F]\n\nORIGIN; AL JURISDICTION : Writ Petition No. 559 of 1974.\n\nPetition Under Article 32 of the Constitution Gautam Goswami, for the petitioner.\n\nG. S. Cha:ttrjee, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.-Madan Gope, petitioner challenges the validity of the -Order of his detention made by the District Magistrate, Purulia under s. 3 of the Maintenance of Internal Security Act, 1971. The order. states that the detention has been made to prevent him from acting in any manner prejudicial to the maintenance of public order.\n\nThe impugned order is founded on two grounds which run as under:\n\n\"l. On 1-11-73 at about 09.00 hrs. you along with your associates attacked Home Guard No. 900 Aswini Mohanti and 3 others of Layadi Home Guard Camp who were on cordoning patrol near Kashipur village, P.S. Joypur close to\n\nBihar border when they arrestid you with rice, Dalda, Kerosene Oil, wheat, which were being carried by you and threatened them with death and snatched away the seized commodities from their custody ..\n\nIn ccinsequence of your said activity which comes within the p\\llrview of section 143/186/332/506, l.P.C. and 7(i) (a) (ii) of Act X of 1955, the maintenance of Public Order was disturbed.\n\nThe said activity thus attract sub-clause (ii) of Claus~~\n\n(i) of sub-section (1) of section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971).\n\n2. On 6-11-73 at about 19.00 hours, you along with your associates attacked the investigating Police Officer and hi:; Police Party with deadly weapons and attempted to resist you1r arrest while they went to Sidhi village under Joypur P.S.,\n\nMADAN v. WEST BENGAL (Sarkaria, ]. ) 533\n\nA District Purulia to investigate a case. You and one of your associates were arrested with deadly weapons.\n\nThese violent and dangerous activities on your - part created terror and panic amongst the local people who were over-awed and thus you have disturbed Public Order.\n\n'8 In consequence of your said activity which comes_ withc\n\nin the purview of sections 148/149, 307 /506/186 I.P.C., the maintenance of public order was disturbed.\n\nThe said activities thus attract Sub-Clause (ii) of Clause\n\n(a) or Sub-section (1) of Section 3 of the Maintenance of Internal Security Ac.t, 1971 (Act 26 of 1971) .\"\n\nThe return has been filed by the District Mal{istrate who had passed the impugned order in which it is averred : -\n\n\"I say that I made the detention order after being satisfied from the materials on records in support of the grounds of detention in question that with a view to preventing the said detenu from acting in any manner prejudicial to the maintenance o! Public Order, it was necessary to detain him ... ; I further say that the grounds furnished to the said detenu are the grounds on which l based my satisfaction for m_aking the order ot detention taking those grounds separately and collectively .... \"\n\nThe main contention of Shri Goswami, learned Counsel appearing as amicus curiae for the petitioner, is that neither of the grounds of detention was relevant to Public Order.\n\nAccording to Counsel these incidents, at the most, affect 'law and order'. In support of his contention he has referred to Bakhtawar Singh v. The State;(~) Man Singh\n\nv. State;(2) A.run Ghosh v. State of W. Bengal( 3 ) Kanu Biswas v. The\n\nStaie of West Bengal(~); Kishori Mohan Bera v. The State of Wesi Bengal(.6 ) and Shyamlal Chakravarty v Commissioner of Police, Calcuti.a and another( 6 ).\n\nIn reply Mr. Chatterjee, learned Counsel for the State submits that in these criminal incidents, the petitioner had threatened and tried to obstruct public servants in the discharge of their duty.\n\nWhen.ever a criminal incident is accompanied by such threat or resistance, proceeds the argument, it raises a problem of Public Order as distinguished from a simple problem of law and order. Reference in this connection has been made to Kanu Biswas v. State of West Bengal (supra); Babul Mitra v. State of West Bengal( 7 ) and Jndradeo Mahato v. State of West Bengal( 8 ). -------·-\n\n(1) AIR 1951Punjab157.\n\n(3) [1970J 3, s.c.~. 288.\n\n(5) AIR 1972SC1749.\n\n(7) AIR 1973 SC 197.\n\n(2) AIR 1953 Pepsu 16.\n\n(4) AIR 1972 S.C. 1656;\n\n(6) AIR 1970 SC 269.\n\n(8) AIR 1973 sec 4.\n\nTimes out of number, it has been emphasised by this Court that since the Act gives extraordinary powers to the Executive to detain a person without trial, meticulous compliance with the letter and requirements of law is essential for the validity of an order of dekntion made thereunder.\n\nSection 3 (1) (a) of the Act confers power on the authority to detain a person if it is satisfied that such detention is necessary to prevent him from acting in any manner prejudicial to :\n\n(i) the defence of India, the relation of India with foreign powers of the security o[ India or\n\n(ii) the security of the State or the maintenance of Public\n\nOrder, or\n\n(iii) the maintenance of supplies and services essential to the ..:ommunity.\n\nClause (b) of s. 3 ( l) applies to a foreigner and is not relevant for our purpose.\n\nIt will be seen that the power can be exercised only on one or more of the grounds enumerated above. If the exercise of the power is not on the face of the order correlated t~ any of these grounds or concerns activifi.es, which are not germane to any of these grounds, such exercise would be vitiated for lack of jurisdiction. Furtjler, the satisfaction spoken of in s. 3 (1 )-which is the sine qua non to the exercise of the power is the subjective satisfaction of tb.e authority which cannot be tested in court by objective standards. Ordinarily, therefore, the court cannot go behind tho satisfaction expressed on the face of the order. As pointed out by this Court in Dr. Ram Manohar Lohia v. State oj Bihar a11d Ors. (}1) \"when an order on the face of it, is not in terms of the rule, a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say irrespective of what is stated in it, in terms of the rule\". Thus where the order ex f acie is made with a view to prevent an act prejudicial to the m1).intenance of Public Order, the detaining authority cannot be p-ermitted to show that in facf theorder was made to prevent an act prejudicial to the maintenance of supplies and services essential to the life of the community.\n\nThe distinction between 'Public Order' and 'Law and Order' has frequently come up for consideration before this Court. Recently, in Ram Ranjan Chatterjee v. The State of West Bengal,( 2 ) this Court explined the distinction between the two, thus :\n\n\"It may be remembered that qualitatively, the acts which affect 'law and order' are not different from the acts which\n\naffect 'public order'. Indeed a state of peace or' orderly tra11quality which prevails as a result of the observance or enforcement of internal laws and .regulations by the Qovernment, is a\n\n(I) [1966] 1 SCR 709.\n\n(2) Writ Petition No. 476/74 decided on 22-1-75.\n\nMADAN v. WEST BENGAL (Sarkar/a, J.)\n\n-feature common .to the concepts of 'law aad order' and 'public order'. .Every kind of disorder or contravention of law affects that orderly tranquillity. The distinction between the areas of .. 'law and order' and 'public order' as .pointed __ by this Corirt in A run Ghosh's case (supra) \"is one of degree and extent of the reach of the _act in question on society\". Itis the potentiality of the act to disturb the even tempo of the life of the community which makt:S _it prejudicial _to the mainten~ ance of public order. If the contravention in its eff..:ct is coµc fined only to a . few individuals, directly involved, . as diStin- guished from a winder spectrum of the public, it would raise -a\n\nproblem of law and ordr only. These concentric COriCf.'.pt's of 'law and order' and 'public order' may have a common epicentre', but it is the length, magnitude and intensity of the terroc-wave unleashed by a particular eruption of disordettliat helps distinguished it as an act affecting 'public order' from that concerning \"law and order\".\n\nWe may further, observe that the various grounds indicated in clauses (i), (ii) and (ill) of Section 3(1) (a) are not always mutually exclu- D sive. . Nor can the prejudicial acts be categorised into water-tight :oom.- . f)\\U1tllents.\n\nAs pointed out by this Court in Indradeo Mahatds''tase fsupra) : ·\n\n\"Similar acts in different situations -may give rise to different problems : in one set of circumstances an act may poSi' only a law and order problem whereas in another it may generate deep and widespread vibrations having serious enough impact on the civilized peace-abiding society so as to affect public order, one has to weigh the degree and sweep of the harm the act in question is capable of in its contxt: -Every .case.has therefore, to be considered on its.own facts and cir. cumstance&.\"\n\n.. ' Considered in the light of. the above principles, it is quitc}lear -r that_ the activity which constitutes the substratum of the first gr'otJnd ofdetention; is manifestly a case of interstate smuggling dr attemPt to smuggle essential commodities such as rice, Dalda, Kerosene oil' and wheat.\n\nSmuggling, ordinarily, is a calendestine activity.' ~Broadly speajdng,_ its C9llcept is.repugnant to what is 'public'.-. All ; rlgh:tly observed by Falshaw J. in Bakhtawar Simh v. The Sta•e(I) . : \"'.Prima fade . there is no connection between smuggling which is essentially a secret G . opt<ration and the maintenance of public order in which the operative\n\nord is 'public'\". We will, however, hasten to add:that this broad\n\n_ proposition as to the distinction between an act of 'smuggling' and an act affecting 'public order' is not an abstract or absolute proposition of Jaw. caBes. are conceivable where the act of smuggling may be accompanied by such violence and disorder that it throws out of gear the even tempo 0r the life of the community in the locality or dismrbs public tranquillity.\n\nH ThP: broad distinction between an act of sm-qf?clinl? and one o[ejudicial to 'Public Order' drawn by 11s is helpful only for the P\\Jri>9Se of deter-\n\n . (I) AIR. 1951 Simla 151.\n\n3-470SCI/75\n\n. 5 31!\n\nSUPREME COURI RE~QJUS [1975] 3 s.c.R.\n\nmining whether in the circumstances of the present case, the smuggling activity attributed to the detenu, as incorporated in his first ground of detention, was germane to the maintenance of public order, for achieving which the preventive detention in question has been professedfy made. In our opinion the answer to this question must be in the negative. The c, nly fact whic'; has been mentioned in addition to the smuggling of soinc essential commodities in that ground is that th1~ deti..11a\n\nand his associates had threatened the Home-Guards and snatched away the seiud commodities from their custody. Further fact meD'lioned is that this activity comes within the purview of Ss. 143/186/332/506 I.P.C. and 7(i) (a) (ii) of Act X of 1955. This latter fact to the effect that such and such offences were committed was only a ccmclusion drawn by the authority. There is absolutely no mention that ainy scare\n\nwas cause(ll in the locality. Nor is it alleged that the detenu or his ;1ssociates were armed with any deadly weapons, or that their acts had\n\nc;3used panic and terror among the people of the locality. The incident w~ cootined to the detenu and his associates on one handi and the Home-guards who checked them on the other. Oearly therefore, .it was not an activity which was prejudicial to the maintenance of Public Order. At. the most, it could be said to be an acticvity affecting law and order. Nor can the order be justified on the ground tb.at this activity wa& manifestly prejudicial to the maintenance of supplies and services. esnntial to the colii!Ilunity. We have stated earlier that the court cannot go behi.ad the subjective satisfaction of the detaining authority as expressed in the detention order and permit it to justify its order on a ground different from the or1e mentioned on the f1U:e of the order.\n\nWe ure therefore of the opinion that the first ground of detention bad no r.;:all nexus with the maintenance of Public Order. Jn view of thi<i finding, it i.s not necessary for_ us to consider whether the criniinal act\n\nincorporated in the second l?l'OUnd of detention falls within the category of an act affecting Public Order or one concerniPg law and order. If one out of several grounds of detention is found to be irrelevant, tho order of •fotention shall stand vitiated. The reason is that iin such C3SC$, it cannot be reasonably predicated as to what extent the iirrelevant ground had influenced the subjective satisfaction of the detaining authority.\n\nWe haw gooe through the cases cited by Mr. Chatterjee. It has not been laid down therein as a proposition of law that whenever any act is accompanied by show of forre or threat to a public servant entrusted with the maintenance of law and order, it must necessarily fall within the cate14ory of an act prejudicial to the maintenance of Public Order. Even in these cases, the broad test applied was, wh~ther the act was of such a magnitude and gravity that it had disturbed the eVen tenioo of the life of the community in the area. Indeed, this is ess.--ntially a question Of fact depending on the circumstances of each case.\n\nIn the result, we allow this petition, q:uash the impugned order o[ detention. make the rule absolute and direct that the pctitiomr be r~ leased forthwith.\n\nV.P.S.\n\nPetition lllWwed.", "total_entities": 45, "entities": [{"text": "MADAN GOPE", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "MADAN GOPE", "offset_not_found": false}}, {"text": "THE STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 12, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "February 12, 1975", "label": "DATE", "start_char": 40, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "February 12, 1975\n\n[V. R. KRISHNA.IYER AND R. s. SARI<ARIA, JJ.]"}}, {"text": "V. R. KRISHNA.IYER", "label": "JUDGE", "start_char": 60, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "Sec1", "label": "PROVISION", "start_char": 135, "end_char": 139, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 158, "end_char": 162, "source": "regex", "metadata": {"statute": null}}, {"text": "S11111", "label": "PROVISION", "start_char": 282, "end_char": 288, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 405, "end_char": 409, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 143", "label": "PROVISION", "start_char": 1007, "end_char": 1014, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 1028, "end_char": 1033, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1102, "end_char": 1109, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Section 3(l)(a)", "label": "PROVISION", "start_char": 1157, "end_char": 1172, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "India", "label": "GPE", "start_char": 1361, "end_char": 1366, "source": "ner", "metadata": {"in_sentence": "32 challenging the order of detention,\n\nHELD: (1) Section 3(l)(a) of the Act confers power on the authority to detain a person if it is satisfied that such detention is necessary to prevent him from acting in a manner prejudicial to, ( i) the defence of India, the relation of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of Public Order, or (iii) the maintenance of supplies and services essential to the community."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1933, "end_char": 1937, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "22-1-75", "label": "DATE", "start_char": 4769, "end_char": 4776, "source": "ner", "metadata": {"in_sentence": "476/74 decided on 22-1-75 ri:ferred ·to."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 5148, "end_char": 5158, "source": "regex", "metadata": {"statute": null}}, {"text": "G. S. Cha:ttrjee", "label": "LAWYER", "start_char": 5216, "end_char": 5232, "source": "ner", "metadata": {"in_sentence": "G. S. Cha:ttrjee, for the respondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 5299, "end_char": 5307, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J.-Madan Gope, petitioner challenges the validity of the -Order of his detention made by the District Magistrate, Purulia under s. 3 of the Maintenance of Internal Security Act, 1971."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5437, "end_char": 5441, "source": "regex", "metadata": {"statute": null}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 5449, "end_char": 5491, "source": "regex", "metadata": {}}, {"text": "1-11-73", "label": "DATE", "start_char": 5707, "end_char": 5714, "source": "ner", "metadata": {"in_sentence": "The impugned order is founded on two grounds which run as under:\n\n\"l. On 1-11-73 at about 09.00 hrs."}}, {"text": "Aswini Mohanti", "label": "WITNESS", "start_char": 5794, "end_char": 5808, "source": "ner", "metadata": {"in_sentence": "900 Aswini Mohanti and 3 others of Layadi Home Guard Camp who were on cordoning patrol near Kashipur village, P.S. Joypur close to\n\nBihar border when they arrestid you with rice, Dalda, Kerosene Oil, wheat, which were being carried by you and threatened them with death and snatched away the seized commodities from their custody ..\n\nIn ccinsequence of your said activity which comes within the p\\llrview of section 143/186/332/506, l.P.C. and 7(i) (a) (ii) of Act X of 1955, the maintenance of Public Order was disturbed."}}, {"text": "Kashipur village", "label": "GPE", "start_char": 5882, "end_char": 5898, "source": "ner", "metadata": {"in_sentence": "900 Aswini Mohanti and 3 others of Layadi Home Guard Camp who were on cordoning patrol near Kashipur village, P.S. Joypur close to\n\nBihar border when they arrestid you with rice, Dalda, Kerosene Oil, wheat, which were being carried by you and threatened them with death and snatched away the seized commodities from their custody ..\n\nIn ccinsequence of your said activity which comes within the p\\llrview of section 143/186/332/506, l.P.C. and 7(i) (a) (ii) of Act X of 1955, the maintenance of Public Order was disturbed."}}, {"text": "section 143", "label": "PROVISION", "start_char": 6198, "end_char": 6209, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "section 3", "label": "PROVISION", "start_char": 6399, "end_char": 6408, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 6416, "end_char": 6458, "source": "regex", "metadata": {}}, {"text": "6-11-73", "label": "DATE", "start_char": 6484, "end_char": 6491, "source": "ner", "metadata": {"in_sentence": "On 6-11-73 at about 19.00 hours, you along with your associates attacked the investigating Police Officer and hi:; Police Party with deadly weapons and attempted to resist you1r arrest while they went to Sidhi village under Joypur P.S.,\n\nMADAN v. WEST BENGAL (Sarkaria, ]. )"}}, {"text": "sections 148", "label": "PROVISION", "start_char": 7114, "end_char": 7126, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7145, "end_char": 7150, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7287, "end_char": 7296, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Goswami", "label": "OTHER_PERSON", "start_char": 8014, "end_char": 8021, "source": "ner", "metadata": {"in_sentence": "Public Order, it was necessary to detain him ... ; I further say that the grounds furnished to the said detenu are the grounds on which l based my satisfaction for m_aking the order ot detention taking those grounds separately and collectively .... \"\n\nThe main contention of Shri Goswami, learned Counsel appearing as amicus curiae for the petitioner, is that neither of the grounds of detention was relevant to Public Order."}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 8570, "end_char": 8580, "source": "ner", "metadata": {"in_sentence": "In reply Mr. Chatterjee, learned Counsel for the State submits that in these criminal incidents, the petitioner had threatened and tried to obstruct public servants in the discharge of their duty."}}, {"text": "AIR 1951Punjab157", "label": "RESPONDENT", "start_char": 9143, "end_char": 9160, "source": "ner", "metadata": {"in_sentence": "(1) AIR 1951Punjab157."}}, {"text": "AIR 1973 SC 197", "label": "CASE_CITATION", "start_char": 9215, "end_char": 9230, "source": "regex", "metadata": {}}, {"text": "AIR 1970 SC 269", "label": "CASE_CITATION", "start_char": 9286, "end_char": 9301, "source": "regex", "metadata": {}}, {"text": "sec 4", "label": "PROVISION", "start_char": 9317, "end_char": 9322, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 9614, "end_char": 9623, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 10065, "end_char": 10069, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 10503, "end_char": 10507, "source": "regex", "metadata": {"statute": null}}, {"text": "[1966] 1 SCR 709", "label": "CASE_CITATION", "start_char": 11978, "end_char": 11994, "source": "regex", "metadata": {}}, {"text": "A run Ghosh", "label": "OTHER_PERSON", "start_char": 12347, "end_char": 12358, "source": "ner", "metadata": {"in_sentence": "The distinction between the areas of .. 'law and order' and 'public order' as .pointed  by this Corirt in A run Ghosh's case (supra) \"is one of degree and extent of the reach of the act in question on society\"."}}, {"text": "Section 3(1)", "label": "PROVISION", "start_char": 13222, "end_char": 13234, "source": "regex", "metadata": {"statute": null}}, {"text": "Falshaw", "label": "JUDGE", "start_char": 14378, "end_char": 14385, "source": "ner", "metadata": {"in_sentence": "All ; rlgh:tly observed by Falshaw J. in Bakhtawar Simh v. The Sta•e(I) . : \"'"}}, {"text": "Ss. 143", "label": "PROVISION", "start_char": 15951, "end_char": 15958, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 15971, "end_char": 15976, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1975_3_537_541_EN", "year": 1975, "text": "LAXMINARAYAN DIPCHAND MAHESHWARI & ORS.\n\n'MAHARASHTRA REVENUE TRIBUNAL & ORS.\n\nFebruary 13, 1975\n\n[1{. K. MATHEW AND P. K. GOSWAMI, J).]\n\nBombay Telfllncy and Agricultural Lands (Vidarbha Region) Act 1958 ss.43(14A), 46(1) and 49A(1)-Scopc o/-S.46, if protected by Art. 31A. •\n\nSection 46 ( 1) of e Bombay Tt:nancy d Agricultural Lands (Vidarbha Re. glon) Act, 1958, prov1des that notw1thstandmg anything contained in Chapter Ill ·\n\n(containing ss. 38 to 57) the OWJ}ership of nil lands held by tenants, which they are entitled to purchase from the1r landlords under any of the provisions of that chapter, shnll &nd trnnsferred to and vest in such tenants on and from April 1.\n\nt961. from vhtch date such te'}ants shal~ be deemed to be the full owners of such C lands. Sectton 43 ( 14A) provides that 1f a tenant fails to exercise his right of\n\npurchase under s. 41 etc. te land shall be deemed to be surrendered to the land lords; and s. 49A(l) prov1d~ at notwithstanding anything contained in ss..41\n\n311d 46 etc., on .and. from Apnl 1. 1963 the ownership of all land held by 8 tenant\n\n(being land whtch 1s not transferred to the tenant under s. 46 or which is not pur chased by him under ss. 41 and 50), shall vest in such tenant\n\nThe Agricultural Lands Tribunal took action under s. 46 read with s. 48 of D the Act for fixing the price of the land in possession of the respondent who was\n\npersonally cultivating the land as a cultivating tenant under the appellant-landlord. The appellant contested the proceedings without success before the authorities under the Act as well as in a writ petition in the High Court. In appeal tb lhb Court, it was contended (1) that s. 49A is not applicable to the present case\n\nas the opening non-obstante clause of that section makes no reference to s. 43(14A) while it specifically mentions ss. 41 and 46; (2) Since the tenant had not exercised his right to plll'chase the land in question under s. 43(14A) the land shall be deemed to have been surrendered to the appellant and no question of statutory E transfer of ownership of the land would arise; and (3) Se.ction 46 is violative of\n\nArts. 14 and 19(1 )(f) of the Constitution and is not saved by Art. 31A.\n\n. Dismissing the appeal,\n\nHELD : (l) Section 49A is no.t attracted in the instant case since that section provides for ownershit> of.land which is. not transferred\\to the tenant under s. 46 or which is not purchased by the tenant under s. 41 or 8. SO. The present case deals with compulsory transfer of ownership under s!· 46.\n\n[539H) ·\n\n(2) Under. s. 46 the tenants became full owners of the land~ by operaon of law and there is a statutory vesting of the lands in them. 11us legal ':esting by operation of s. 46 on and from April t, 1961, cannot be diested m tho .\n\na.)>sence of any clear provision under the Act. Section 43 (14A) lS a prospechve Provision and was introduced in the Act by amendment on March .1. 1~2\n\nand has no application. [S40A-D] . ·\n\n(3) Son ~6 has achieved th~ twin purpose of extinisbment of the rishl of the landlord tn the estate and conferment of the same nght u~ the tenant. nee that happens, there is, in one breath, extinguishment of the ngbt In favour\n\n. 1-1\n\n/ 1~ State Mld the conferment of the said right in favour of the tenant .. Alcle rlA ts therefore clearly applicable and it cannot be contruned that there ts vtola-\n\n•on of Arts. 14 and 19. [541A-C]\n\nCIVIL APPELLATE JURisDICTION: Civil Aooeal No. 2609 .of 1969.\n\npPeal by Special Leave from the jridgment and order dat<:d the ~?t 1 h ~ril, .1969 of the Bombay High Co~ (Nagpur BeQc~) m spea Ctvil Appln. No. 1039 of 1966.\n\nW. S. BarUngay, Sheil Sethi and Ganpat Rai, for the appellants.\n\nSUPREME COURT REPORTS [1975) 3 S.C.it.\n\nE. C; Agarwala, for respondent no: 2. A.\n\nM. C. Bhandare and~· P. Nayar,. for respondent No. 5.\n\nThe Judgment of the Court was dlivered by\n\nOoSWAMI, J. This petition by special leave is directed agchinst tl:le judgment of the Bombay High Court rejecting the appellant-landlords' application .under articles 226 and 22 7 of the Constitution with regud B to a revenue matter under the Bombay Tenancy and Agricultur~~ Lands (Vidarbha :Region) , A.ct, 1958 (briefly the Act). The second respon\":' dent (hereinafter the respondent) was the cultivating tenant .under the· . . appellant-landlords.\n\nIt was never in dispute in any of the earllier pro-· ceedings that the respondent was personally cultivating the land as a . tenant.\n\n'. On a report of the patwari submitted on Aprll 6, 1963, the Agricultural Lands Tribuna], Malkapur, took action under section 46 r'ad with section 48 of the Act for fixing the price of the land in possession of the respondent. The appGllants contested the proceeding without f-access and an appeal preferred before the Special Deputy Collector for Tenancy met with the .same fate. The appellants then preferred a peti:tion of revision before the Maharashtra Revenue Tribunal, Nagpur. That also fatld. As noticed earlier eventually the High Court also rejected the writ applicatiou. The short que..c; tion that had been persistently rafsed in .all the earlier proceedings and has been strenuously urged by Dr.\n\nBarlingay before us is whether in view of section 43(14A) of the Act the order of the Revenue Tribunal is legally sustainab1e.\n\nIn order to appreciate the above submission it js necessary to look at the relevant provisions.\n\nSection 41 ( 1) reads as follows :-\n\n. 41. ( 1,) :: \"Notwithstanding anything to the cuntnu:y in any law, usage or contract but subject to the provisions of :sections 42 to 44 (both inclusive) a tenant other than an O<:cu pancy tenant shall, in the case of land held by him as a tenant, be entitled to purchase from the Iandlor~ the land held by him as a tenant and qlltivated by him personally\". ·\n\nIt iS not necessary to quote section 42 which provides for the extent of land which a tenant may purchase under section 41.\n\n. section 43(1)(a) and (14A) upon which much stress has been Ia.id:may be set out : ·\n\n43(1 )(a.). \"A tenant who desires to exercise the right conferred by section 41 shall make an offer to the landlord stating the price at which he is prepared to purchase the land, such price not exceeding twelve times the rent payable by him and the depreciated value of any structures, wells and embankments constructed and permanent fixtures made and the value of any trees planted on the land by the landlord after the period of the last Settlement or where no such Settlement is made dl.lring the period of thirty years before the comc\n\nmencement of this Act and the amount of the arrears or rent,· if any, lawfully due on the day on which the offeris made\".\n\n43 ( 14A). \"If a tenant fails to exercise his right of purchase under section 41 in respect of any land or the purchase of any land becomes ineffective, the land shall be deemed to\n\n~ have been surrendered to .tne landlord, and thereupon the provisions of sub-sections (1) and ( 2) of section 21 and Chapter VI snail apply to such land as if the bind was surrendered by the tenant under section 20''.\n\nThe next material section is 46 ( 1 ) which reads as under :-\n\n46( 1 J. \"Notwithstanding anything in this Chapter or any . law for the time being in force or any custom, usage, decree, contract or grant to the contrary, with effect on and from the first day of April 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under any of the provisions of this Chapter shall stand transferred to and vest in,. such tenants and from such date such tenants shall be deemed to be the full owners of such Jands :\"\n\n• * * Section 49A(l) may aJso be read; 49A(l). \"Notwithstanding anything contained ill section 41 or 46, or any custom. usage. decree, contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day ot April 1963 the ownership of all land held IJY a tenant (being land which is not transferred to the tenant under section 46 or which is not purchased by him under section 41 or 50) shall stand transferred to and vest in, such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land, if such land is \\:ultivated by him personally, and ... \"\n\nIll * * * :): :jc it is submitted by Dr. Barlingay that since the tenant had not exercised his right to purchase the land in question, under sulr.section ( 14A) of sectioa 43 the land shall be deemed to have been surrendered to the landlords and no question of statutory transfer of ownership of the !and would arise. He also submits that section 49A is not applicable in the instant case as the opening non-obstante clause of that section makes no reference to section 43 ( l4A) while specifically mentions section 41 and section 46.\n\nW'! may at once say that section 49A is not attracted in the instant case since the section provides for ownership of land . which is not transferred to the tenant under section 46 or which is not purchased .by. the tenant under section 41 or section 50. It is admitted by the learned counsel that the land in question was not purchased by the tenant under . section 41 or under section 50. The only c<:mtention is that this land· cannot be the subject matter for c_ompulsory transfer of . owner8hip\n\nunder section 46.\n\n. 540\n\nSUPREME COURT REPORTS [1975] 3 s.c.n.\n\nSub-section 14(A) of section 43 was inserted by Maharashtra Act 2 of 1962 with effect from March 1, 1962. On the other hand section 46 ( 1) brings about a legal consequence with regard to transfer of 0\\mcrship of land to tenants on and from April 1, 1961. Section 46 ( 1) provides clearly and unambiguously that notwithstanding anything con-\n\n. tained in Chapter III (containing sections 38 to 57) the ownership of n: all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter, shall stand transferred to and vest in such tenants on and from Apdl 1, 1961) from which dae such tenants shall be deemed to be the full owners of such lands. The tenants, therefore, become full owners of the t(nanted lands hy operation of law and. there is a statutory vesting of the lands in C them. This legal vesting by operation of sectioll 46 on and from April 1, 1961, cannot be divested io absence of any clear provision under the Act to that effect only by reference to a prospective provision like subsction ( 14A) of section 43 which came by an amendment much later on March 1, 1962. It is, therefore, not even necessary to consider the l.egal effect of the amalam of the three sections, namely, sub-:section ().,\n\n~14A) of section 43, section 46 and section 49A in this appeal.\n\nWe are satisfied the revenue authorities were justified in taking action under section 46 read with section 48 and the order cannot be challenged as\n\nunsutainabJe in law.\n\nThe learned counsel next contends that section 46 of the Act is violative of article 19 ( 1 ) (f) of the Constitution and is not saved by article '31A which is not. applicable. Counsel sutmil\" that under section 46 there is no acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such righto;; in order to come within the saving provision of article 31A(l) (a). According 1:· to counsel the laud is transferred from the landlord and vests in the tenant by virtue of section 46. There is, therefore, no acquisition by the State of any estate or of any rights therein nor is there any extinguishment or modification of such rights in favour of the State. Section 46 and such other provisions in the Act are in furtherance of agrarian ccforms which arc one of the principal objects or the Act. The fact G: that section 46 in terms transfers the land from landlord to tenant and vests the ownership in the latter docs not mean that there is no extinguishment of the estate or its rights in favour of the State for the sole\n\nrea~ that there is no express mention of such acquisition by the State bJ terms. Th.e scheme underlying the provisions may be briefly stated.\n\nThe .State being the paramount owner of the lands had earlier granted II the land to thf~ tenure holders who are the landlords under the Act. In order to transfer the land to tenants from the landlords the first step the\n\nState will bavt: to take is to extinguish the rights of the tenure holders under the paramount owner. lt is only then that transfer of the same land to the tenants under the landlords will be possible. Section 46, in our opinion, has achieved the twin purpose of extinguishment of the right of the landlord in the estate and conferment of the same right upon the tenant. Once that happens there iS in one breath extinguishment of the right in favour of the State and the conferment of the said right in favour of the . tenant. There is, therefore, no substance 'in the contention that article 31A is not applicable in this case to enable the\n\nappellan~ to challenge the provision under article 19(1)(f) of the Constitution. The objection of the learned counsel is, therefore, without substance. Since article 31A is clearly applicable, we need not deal with the objection of counsel on the score of violation ofarticlc\n\nOt 4 of the Constitution.\n\nIn the result the appeal fails and is dismissed with costs.\n\nV.t>.S.\n\nA flpeal disnu:r;'>ed ..", "total_entities": 94, "entities": [{"text": "LAXMINARAYAN DIPCHAND MAHESHWARI & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "LAXMINARAYAN DIPCHAND MAHESHWARI & ORS", "offset_not_found": false}}, {"text": "MAHARASHTRA REVENUE TRIBUNAL & ORS", "label": "RESPONDENT", "start_char": 42, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "MAHARASHTRA REVENUE TRIBUNAL & ORS", "offset_not_found": false}}, {"text": "1{. K. MATHEW", "label": "JUDGE", "start_char": 99, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "P. K. 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{"document_id": "1975_3_542_546_EN", "year": 1975, "text": ".:) 42\n\nANA.NDJI HARIDAS.& CO. PV't. LTD\n\nENGINEERING MAZDOOR SANGH & ANR.\n\nFebruary 13, 1975\n\n(A. ALAGIRISWAMI AND R. S. SARKAR.IA, JJ.J\n\nBonus Act, 1965-.s. 'l(e)......Scope of-Speech of a Minister in Pa•liame111 tJr iLegislature--lf could be u.ied in consmdng a clear and unambiguouJ' provis/011.\n\nSecti0n 7 of the Bonus Act provides as to how the dircc:t tax payable by an employer is to be calculated for the purpose of computing the available surplus. <Clause (e) of s. 7 enacts that no ao::ount shall be taken of any 'rebate' or 'relief' or deductio11 in the payment of any direct tax allowed unde~ any law for the time 'being in force relating to direct !axes or under the relevant annual F:innnce Act .for the development of anv industry,\n\nIn the case of an industrial company, which is not a company in which public '1l'e substantially interested, the Finance Act. 1966 fixed the rate of income-lax at\n\n55% on so. much of the total income as did not ex.:eed Rs. ten lak.lis, on the IJalance, if any, of the total income 60% and 65 % in the case of n, iy other company.\n\nIn a dispute between its employees and the appellant, which is an1 industrial company the latter contended that for the purpose of computing the available surplus it Wi!S entitled to deduct direct tax at 65% and not 55% which was only a concessimlal levy amounting to a 'relief' for the purpose of development. The Tribunal accepted the contention of the appellant. The High Court allowed the 1 espondent's writ petition under Art. 227 of :he Constitution holding that the com- pany being an industrial company could not claim deduction at a rate higher than 55 % in cakulating the available surplus.\n\nOn appeal it was contended that the 10 % concession in the rate was given to industrial companies with a view to promote development of industry and as such must be deem•d to be a 'relief or 'rebate' in !he payment of direct ta)[ contemplated bv s. 7(e\\ of th<> Bnnir; Act Rrli<>ncr fo• thi• ha~ h-en nlaced on the speech of the Finance Minister on the budget for the year 1966-67.\n\nDismissing the appeal,\n\nHELD : (I) The company being an industrial company with total income not . ,;:xceeding rupees ten lakhs the rate of tax under paragraph l(A)(2) 0) of the Finance Act, 196~ applicable to it was 55% and not 65% of the total income.\n\n[544H-545A]\n\n(2) The 'rebate or relief' in the payment of any direct tax, in ord.er to fall within the purview of s. 7(e) of Bonus Act. must be a rebate or relief \"allowed under any law for the time being in force relating to direct taxes or under the relevant Finance Act. for the development of any ind11stry\" which is one of the condi'ions to be satisfied.\n\nJn the present case it did not satisfy this c:ondition.\n\nThe Finance Act, 1966 did not say that this difference of 10% in the rate of tax applicable to an industrial .ompany and any other company is to be deemed to be a rebate or relief for the development of industry. No• has it been shown that this diffe'ence in the rates i;; allowed as a rebate or relief under any other .extant Jaw relating to direct taxes.\n\n[545F-H] .\n\n3 (a) It was not permissible to use the speech of the Finance Minister to -construe the clear language of the statute.\n\n[545C-DJ\n\n(b) As a general principle of interpretation, where the words of a statute are plain, rirecise and unambiguous the intention of the Legislature has to be gthered\n\nfrom the language of the statute itself and no external evidence such as ParlialllCll H tary debates. Reoorts of the Committees of the Legislature or even the statement made bv the Minister on the introduction of a measure or by the framers of the Act is admi<Sible to construe to.e words. It is only whece a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more\n\n. ~:-; Xl\\iDJl HARlDAS L ENGG. MAZDOOR si\\.\"IGH (Sarf:.lli'ia, J.)\n\nS 4 3\n\n.1 han one meaning or .shades of meaning that external evidence as to the evils. if\n\nany, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.\n\nF545I>-FJ\n\nCIVU. APPELLATE JURISDICTION: Civil Appeal No. 2053 of 1971.\n\nAppeal by special leave from the Judgment & Order dated the 8th July, 1971 of the Bombay High Court in S.C.A. No. 1346/68.\n\nM. C. Bhandare, P. H. Parekh and S. Bhandare, for the appel- .lant.\n\nThe Judgmenfof the Court was delivered by\n\nSARKAR!A, J.-Whether the difference of 10 per cent between an Industrial Company and other Companies in the levy of Income-tax provided in the Finance Act, 1966 is to be construed a \"rebate\" or \"relief'' in the payment of any direct tax, for the development of an industry for the purposes of s. 7(e) of the Payment of Bonus Act, 1965, (for short, the Bonus Act) is the short question that falls to be answered in this appeal by special leave.\n\nThe appellant is a Private Ltd. Company. It manufactures automobile ancilliaries and other goods in its Factory at Bombay.\n\nIt employs about 170 workmen.\n\nThe workmen demanded bonus for the year 1964-65. Their demand was not met by the C-Ompany.\n\nC-Onci- Jiation proceedings before the Conciliation Officer having failed, the dispute was submitted to the Government which by its Order, dated May 2, 1967 referred the same for adjudication to the Industrial Tribunal.\n\nOne of the points moot~ before the Tribunal was, whether in calculating the available surplus, the direct tax payable by the Company was deductible at the rate of 55 per cent or 65 per cent.\n\nThe case of the Mazdoor Sangh (ResPondent No. 1) was that the rate should be 55 per cent as the Company was paying the tax at the rate only, As against this, the Company contended that it was entitled to deduct as per s. 7(e) of the Bonus Act, direct tax at the normal rate of 65 per cent and not at 55 per cent which was only a concessional levy amounting to a \"relief\" for the purpose of development.\n\nThe Tribunal accepted the contention of the Company.\n\nAfter referring to the speech of the Finance Minister on the Budget of 1966- 67, the Tribunal held : I\n\n\" .... while the private companie& have been normally assessecl to income tax at the rate of 65 per cent, those engaged in industrial undertakings have been assessed at !he concessional rate of 55 per cent, as a measure of reridermg\n\nassistance to their growth.\n\nSuch a concession would. unquestionablv amount to relief for the purpose of development as contemplated bv Section 7 ( e) of the Act.\"\n\nAggrieved, the Mazdoor Sangh impugned the Tribunal's Award, dated 29-2-1968, by a Writ Petition under Article 227 of the Con\n\nstitution before the High Court of Bombay. The High Court held that the Company being an Industrial Company, was liable to pay tax under the Finance Act, 1966 at the rate of 55% only on its total income after deducting depreciation. Therefore it could nor claim deduction at a rate: higher than 55% in calculating the availabfo surplus. In the result, the High Court set aside the Award and remitted the case to the Tribunal for further disposal in accordance with Jaw. Hence this appeal by the Company.\n\nBroadly, the scheme of the Bonus Act is this : At first, the gross profits derived by an employer from an establishment arc calculated in the manner specified in the First Scheduie, or the Second Schedule, whichever may be applicable ( s. 4). On the basis of such gross profits, the available surplus for the particular accounting year is computed.\n\nThis is. done by deducting therefrom the sums referred to in Section 6.\n\nAccording to Clause (cl of Section 6, one of the sums so deductible is :\n\n\"Subject to the. provisions of Section 7, any direct tax. which the employer is liable to pay for the accounting year in res.peel: of his income, profits and gains during that year\".\n\nS.::ction 7, to which s. 6( c) is subject, provides how for the purposes of the Act, the direct tax payable by the employer is to be calculated ..\n\nOaue ( e) of Section 7 is material.\n\nIt runs thus :\n\n\"no account shall be taken of anv rebate (other than development rebate or development allowance) or credit or relief or deduction (not hereinbefop~ mentioned in ''m section) in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes. or under the relevant annual Finance , ct, for the development of any industry\", .\n\nThe rates of income-tax applicable to Private Lt<l. Companies under Paragraph F, Part I of the First Schedule fixed by the Finance Act, 1966, arc as follows :\n\nI. In the c:ase of a domestic Company-\n\n( A) (1) ....\n\n(2) where the Company is not a company in which the public are substantially interested.\n\n(i) in the case of 211 industrial Company-\n\n(1) on so much of the total income as <locs not exccd\n\nRs. 10,00,000-55 per cent.\n\n(2) on the balance, if any of the total income--60 per cent.\n\n(ii) in any other case-65 per cent of foe total income\".\n\n., It is n?t disputed that the Company being an industrial Company Wllh total mco:me for the relevant year, not exceeding Rs. 10,00,000,\n\nANANDJI HARIDAS \\I, ENGG. MAZDOOR SANGH (Sarlctrria, /.) 545\n\nthe rate of tax under the above Paragraph I(A)(2)(i), applicable to it was 55 per cent and not 65 per cent 01 the total income.\n\nHowever, Mr. Bhan.dare's contention is that this was only a concessional rate and not the normal rate which was prescnbcd under Clause (ii) of the above Paragraph I(A) (2). The point pressed into argument is that this ten per cent concession in the tax-rate was given to Industrial Companies with a view to promote development of Industry and, as such, must be deemed to be a \"relief\" or \"rebate\" in the payment of direct tax of the kind contemplated by Section 7 ( e) of the Act.\n\nReliance for this contention has been placed on the speech of the Finance Minister on the Budget of 1966-67, wherein he propased to provide \"certain reliefs\" which he considered \"necessary for providing a suitable climate of growth\", and, in that context, described the rate of 55% tax on Industrial Companies as a \"concessional rate\".\n\nWe arc afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7. The language of that provision is manifestly clenr and unequivocal.\n\nIt has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.\n\nAS a general principle of interpretation, where the words of a statute arc plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.\n\nIt is only where a statute is not exhaustive or where its language is ambiguous. uncertain. clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the . statute was intended to remedy, or' of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words ln question.\n\nIn the case before us, the language of Section 7 ( e) is crystal clear and self-contained. It indicates in unmistakable terms that the 'rebate or relief' in the payment of anv direct t:ix ; n order to fa 11 with; n the purview of this clacse must satisfy two conditions, viz.,\n\n(i) that it must be a rebate or relief \"allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act'', . and further, (ii) that it must be a relief or rebate for the deveopment of anv Industry. In the present case, condition (i) is lackmg.\n\nThe Finance Act, 1966, docs not say that this difference of 10 per cent in the rates of tax applicable to an Industrial Company and any other Company is to be deemed to be a rebate or relief for the development of Industry. Nor has it been shown that thi< niffcrence in the rates is allowed as a rebate or relief under any other extant law relating to dirCCL taxes.\n\n'fbc High Court was, therefore; right in holding that it was not permissible to use the speech of the Finance Minister to constrne the dear language of the statute.\n\nFor the forgoing reasons the question posed above is answered in the negative and the appeal is dismissed.\n\nAs regards the costs, the delay in payment of the bonus caused B by the pendency of this appeal has been amply compensated vid1~ this Court's order dated February 17, 1972, which is to this effect :\n\n'The order of ex-parte stay is mage absolute on the condition that the petitioner-appellant shall pay six percent interest on any amount that is found payable by the appellant to the respondent-workmen from the date the award become enforceable till the disppsal of the appial fu 0 this Court, in case the amieal fails in this Court\\.\"\n\nThe appeal has been heard ex-parte, we therefore make no order as to costs.\n\nOl'.B.R.\n\nA ppea[ dismissed.", "total_entities": 42, "entities": [{"text": "42\n\nANA.NDJI HARIDAS.& CO. 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No."}}, {"text": "M. C. Bhandare", "label": "OTHER_PERSON", "start_char": 4412, "end_char": 4426, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, P. H. Parekh and S. Bhandare, for the appel- .lant."}}, {"text": "P. H. Parekh", "label": "OTHER_PERSON", "start_char": 4428, "end_char": 4440, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, P. H. Parekh and S. Bhandare, for the appel- .lant."}}, {"text": "S. Bhandare", "label": "OTHER_PERSON", "start_char": 4445, "end_char": 4456, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, P. H. Parekh and S. Bhandare, for the appel- .lant."}}, {"text": "SARKAR!A", "label": "JUDGE", "start_char": 4524, "end_char": 4532, "source": "ner", "metadata": {"in_sentence": "The Judgmenfof the Court was delivered by\n\nSARKAR!A, J.-Whether the difference of 10 per cent between an Industrial Company and other Companies in the levy of Income-tax provided in the Finance Act, 1966 is to be construed a \"rebate\" or \"relief'' in the payment of any direct tax, for the development of an industry for the purposes of s. 7(e) of the Payment of Bonus Act, 1965, (for short, the Bonus Act) is the short question that falls to be answered in this appeal by special leave."}}, {"text": "Industrial Company and other Companies in the levy of Income-tax provided in the Finance Act, 1966", "label": "STATUTE", "start_char": 4586, "end_char": 4684, "source": "regex", "metadata": {}}, {"text": "s. 7(e)", "label": "PROVISION", "start_char": 4817, "end_char": 4824, "source": "regex", "metadata": {"linked_statute_text": "Industrial Company and other Companies in the levy of Income-tax provided in the Finance Act, 1966", "statute": "Industrial Company and other Companies in the levy of Income-tax provided in the Finance Act, 1966"}}, {"text": "Payment of Bonus Act, 1965", "label": "STATUTE", "start_char": 4832, "end_char": 4858, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay", "label": "GPE", "start_char": 5084, "end_char": 5090, "source": "ner", "metadata": {"in_sentence": "It manufactures automobile ancilliaries and other goods in its Factory at Bombay."}}, {"text": "May 2, 1967", "label": "DATE", "start_char": 5361, "end_char": 5372, "source": "ner", "metadata": {"in_sentence": "C-Onci- Jiation proceedings before the Conciliation Officer having failed, the dispute was submitted to the Government which by its Order, dated May 2, 1967 referred the same for adjudication to the Industrial Tribunal."}}, {"text": "Mazdoor Sangh", "label": "ORG", "start_char": 5645, "end_char": 5658, "source": "ner", "metadata": {"in_sentence": "The case of the Mazdoor Sangh (ResPondent No."}}, {"text": "s. 7(e)", "label": "PROVISION", "start_char": 5847, "end_char": 5854, "source": "regex", "metadata": {"linked_statute_text": "the Payment of Bonus Act, 1965", "statute": "the Payment of Bonus Act, 1965"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 6561, "end_char": 6570, "source": "regex", "metadata": {"statute": null}}, {"text": "29-2-1968", "label": "DATE", "start_char": 6656, "end_char": 6665, "source": "ner", "metadata": {"in_sentence": "Aggrieved, the Mazdoor Sangh impugned the Tribunal's Award, dated 29-2-1968, by a Writ Petition under Article 227 of the Con\n\nstitution before the High Court of Bombay."}}, {"text": "Article 227", "label": "PROVISION", "start_char": 6692, "end_char": 6703, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 6737, "end_char": 6757, "source": "ner", "metadata": {"in_sentence": "Aggrieved, the Mazdoor Sangh impugned the Tribunal's Award, dated 29-2-1968, by a Writ Petition under Article 227 of the Con\n\nstitution before the High Court of Bombay."}}, {"text": "Finance Act, 1966", "label": "STATUTE", "start_char": 6857, "end_char": 6874, "source": "regex", "metadata": {}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 7410, "end_char": 7425, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1966", "statute": "the Finance Act, 1966"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 7457, "end_char": 7461, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1966", "statute": "the Finance Act, 1966"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 7632, "end_char": 7641, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1966", "statute": "the Finance Act, 1966"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 7671, "end_char": 7680, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1966", "statute": "the Finance Act, 1966"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 7749, "end_char": 7758, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1966", "statute": "the Finance Act, 1966"}}, {"text": "s. 6( c)", "label": "PROVISION", "start_char": 7924, "end_char": 7932, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 8063, "end_char": 8072, "source": "regex", "metadata": {"statute": null}}, {"text": "Part I of the First Schedule fixed by the Finance Act, 1966", "label": "STATUTE", "start_char": 8552, "end_char": 8611, "source": "regex", "metadata": {}}, {"text": "ANANDJI HARIDAS", "label": "JUDGE", "start_char": 9161, "end_char": 9176, "source": "ner", "metadata": {"in_sentence": "10,00,000,\n\nANANDJI HARIDAS \\I, ENGG."}}, {"text": "ENGG. MAZDOOR SANGH", "label": "ORG", "start_char": 9181, "end_char": 9200, "source": "ner", "metadata": {"in_sentence": "10,00,000,\n\nANANDJI HARIDAS \\I, ENGG."}}, {"text": "Bhan.dare", "label": "OTHER_PERSON", "start_char": 9365, "end_char": 9374, "source": "ner", "metadata": {"in_sentence": "However, Mr. Bhan.dare's contention is that this was only a concessional rate and not the normal rate which was prescnbcd under Clause (ii) of the above Paragraph I(A) (2)."}}, {"text": "Section 7", "label": "PROVISION", "start_char": 9806, "end_char": 9815, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 10311, "end_char": 10320, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 11444, "end_char": 11453, "source": "regex", "metadata": {"linked_statute_text": "Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act", "statute": "Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act"}}, {"text": "Finance Act, 1966", "label": "STATUTE", "start_char": 11984, "end_char": 12001, "source": "regex", "metadata": {}}, {"text": "February 17, 1972", "label": "DATE", "start_char": 12775, "end_char": 12792, "source": "ner", "metadata": {"in_sentence": "As regards the costs, the delay in payment of the bonus caused B by the pendency of this appeal has been amply compensated vid1~ this Court's order dated February 17, 1972, which is to this effect :\n\n'The order of ex-parte stay is mage absolute on the condition that the petitioner-appellant shall pay six percent interest on any amount that is found payable by the appellant to the respondent-workmen from the date the award become enforceable till the disppsal of the appial fu 0 this Court, in case the amieal fails in this Court\\.\"\n\nThe appeal has been heard ex-parte, we therefore make no order as to costs."}}]}
{"document_id": "1975_3_547_551_EN", "year": 1975, "text": "SUDARSHAN MINERAL CO. LTD.\n\nUNION OF INDIA & ANR February 13, 1975\n\n54 7\n\nLK. K. MATHEW, P. K. GOSWAMI AND N. L. UNTWAUA, JI.]\n\nTlze Mines & Minerals (Regulation & Developmelll) Act 1951-, Mi11erai' Concession Rules 196Q-.:.Whet/ier detailed rule making power restricts the General Rule making power-Maximum drild m1t spei:ified whether void on account of uncertainty-Whether renewal of tl/c lease .has to oc granted 011 the same term.•. and c; onditions. ·\n\nThe appellarrt was granted a Mining Lease by the erstwhile State of Shahapurn for a period 20 years commencing from 12th August, 1941. The area of the lease was 1500 sq. miles. The said area later on, formed part . of the State of Rajasthan. The Mines & Minerals (Regulation .& Development) Act, 1957, came into force from 1st June, 1958. Under section 61 of the Act the area of a mining lease in the case of Mica could not be more than 10 sq. miles and. its maximum priod could not exceed 20 years as provided in section 8. Section 16 confers powers to modify a mining lease accorded before 1949 to bring it in conformity with the Act and the Rules.\n\nIn exercise of this power. the.\n\nController of Mica leass reduCed the mining area to 10 sq. miles and the. rent . was duced from Rs. 8 per acre as fixed by the original lease to Rs. 6 /- per acre. The period of 20 years of original lease .; a e to an end iu 196h The appellant applied to the Crllvemment of Rajasthan f r renewal of its lease\n\nfor another 20 years under rule 28.\n\nThe renewal was ranted but the. dead: rent was increased from Rs. 6 to Rs. 8 per ocre. The a Hant challenged t11e order of Rajasthan Government by filing a Revision befor the Central Oovrn\n\nment which was dismissed. Thereafter. the appellant fil the present suit for a decree of injooction restraining respondents from chargin dead rent @.Rs. 8 per acre and for a declaration that they are entitled to c . arge only @ Ril •. 6 per acre. The suit was decreed by the trial court but .was dismissed by the First App!llate Court. The dismissal was maintained b~ the. Higb Court iro. 'ict, ind Apir.al. On appeal by Speial Leave, the appellant contended : ·\n\n(I) Under thoagreement. dated. 20-11-1959 the lase was to be governed by the A, ct and the Rules except in/\" regard to dea.d. re'nt was fixed at Rs. 6/- per ar.:re. · ··· . '\n\n( 2) Under Rule 28 of the Rules, the State Governnlent while reney.--\n\ning .the lease had power to reduce the \"rea ut no power k ' increase the dead rent. . . . .. : . / . ·\n\n i3) Ruk 'J.7 does not apply to renewal of a le.as~.\n\n(4) ciause (c) of si1Ji:Rule (ly t Ruic 27 i~ ultra Vires us .it transgresses the rnle making power under ction 13(2}{g) of. the\n\nA~I. ., . . .. . .\n\n(5) Rule 270}(c) if.made appllcabldo renewal of a minin11 Ieac\n\nintroduces 001 element of uncertainty il\\id is therefore void.\n\nHELD: Rukmaklng power is to be found in section 13 (!). Section f3(2J merely illustrates the nature of the power, it does not restrict the general power under section 13 (I) .. The rule could ha e beeri framed even under section\n\n13(2){g). [549C]\n\nHELD FURTIIBR : There is no element of uncertainty in the rule either le> the grant of fresh leas~ or in respect of the renewal. The maximum limi1 is contained in Chapter IV .. To provide for payment of dead rent it ha~ specified rates slibfct to variation within the limit specified. These cttnnot hi: said to be void on account of uncertainty.\n\n[550C]\n\n.548\n\nSUPREME COURT REPORTS [1975) 3, S.C.lt.\n\nHELD FURTHER : The contention that the renewed lea5e had to be\n\nranted on the same twns and conditions and that no term and c:onditioo could be varied while granting the renewal of the lease except in regard to the reduction of the area in accordance with rule 28(5) was negatived was not corm:!. If in the original lease of 1941 there was a renewal clause one could probably say th:kt the renewal had to be on the same terms and conditions . but in the absenee of such a right of rcn:wat to the kscc the argument was not sound. '.rhe deman,1 of Rs. 8 per acre was within the limit spedfied by Schc<lule JV and w:t5 in accordance with law.\n\nThe appeal was dismis!1ed with :o\\tS.\n\n[55 JB .. D)\n\nCIVlL APPELL\\JE JURISDICTION : Civil Appeal No. 2305 of 1969.\n\nAppeal by Special Leave from the Judgment & Order <lated the 8th August, 1969 of the Rajathan High Court in S. B. Civil Second . Appeal No. 236 of 1966.\n\nP. C. Bhartari, for the Apoellant.\n\nGirish Chandra, foe Respondent No. J.\n\nS. M. la.in, for Respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, J. This is a plaintiff's appeal by special leave of this Court from the Judgment and decree of the Rajasthan High Court whereby the plaintiff's second appeal from the decision of the First Appellate Court was dismissed and the dismissal of its suit was maintained.\n\nThe fact!\\ of the case lie in a narrow comp:iss und may usefully be stated at the outset. The plaintiff was granted a mining lease for mining mica by the erstwhile State of Shahpura for a period of 20 years commencing from the 12th August, 1941. The area of the leru; e purported to be 1500 sq. miles. In due course the mining area in ques tion came to form part of the State of Rajasthan. The Mine.~ and Minerals (Regulation and Development) Act, 1957-hereinafter called the Act-came into force from 1st June, 1958. Under-section 6(1) of the Act as it stood at the relevant time the area of a mining kase in tile case of mica could not be more than 10 sq. miles and its maximum period could not exceed 20 years as provided in section 8. Section 16 confers power on the approi:riate authority to modify a mining lease granted before 24th October, 1949 to bring it in conformity with the Act and the Rules made thereunder. In exercise of this power and in accordance with the Mining Leases {Modifications of Terms) Rules, 1956 the Controller of Mica Leases, Nagpur, reduced the mining area of the appellant lease to 10 sq. miles by his order dated November 20,\n\n1959. As per Rule lO(l)(a) of the said Rules a compensation of Rs. 10/- only was fixed by agreement between the parties for reduction of the area, and by the same order the dead rent at the rate of Rs. 8/- per acre per annum fixed by the original lease was rcducedJo Rs. 6/· per acre. The period of 20 years of the original lease came to an end on August H, 1961. The appellant applied to the Government of Rajasthan for renewal of its lease for another 20 years. This was do11e in accordance with Rule 28 of the Mineral Concession Rules, 1960hcrciuafter called the Rules. The Government of Rajasthan granted the renewal by order dated December 13, 1961 for a period of 20 years\n\nSUDARSHA'i \\1!NERAL co. v. UNION (Untwalw, J.) 549with effect from August 12, 1961. The dead rent fixed for the renewetl lease was Rs. 20/- per hectare which comes to Rs. 8/- per acre. The appellant challangcd the order of the Government of Rajasthan by tiling a revision before the Central Government in accordance with Rule 54 of the Rules.\n\nBut the revision was dismissed.\n\nThereupon it filed a suit against the Union of India, respondent no. l and the State of Raja.than, respondent no. 2 for a decree of injunction to restrain the defendants from charging de8.d rent at the rate of Rs. 8/- per acre per annum and for a dedaration that they arc entitled to charge only at the rate of Rs. 6/- pC'r acre.\n\nThe suit was decreed by t11c Trial Court but was dismissc:d by the First Appellate Court. The dismissal was maintained by the High Court in second.appeal.\n\nMr. Y. S. Chitlay, learned counsel for the appellant, pressed the following five points in support of this appeal :\n\nll) Under the agreement dated 20-11-1959 the lease was to be governed by the Act and the Rules except in regard to dead rent whicli was fixed at Rs. 6/- per acre.\n\n(2) Under Ruic 28 of the Ruh:s, the State Government while renewing the lease had power to reduce the area but no power to increase the dead rent.\n\n(3) Rule 27 docs not apply to renewal of a Jcas1:.\n\n(4) Clause (c) of Sub-Ruic (1) of Rule 27 is ultra vires\n\nas it trangresscs the rule making power under section 13(2) (g) of the Act.\n\n(5) Rule 27(1) (c) if made applkablc to rcne\\Yal of a mining lease introduces an clement of uncertainty and is therefore void.\n\nLearned counsel for the respondents combated the appellants argument in all respects.\n\nIn our opinion none of the contentions put forward on behalf of the appellant is fit to be accepted and the appeal must fail.\n\nAs is well settled the power to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for purposes connected therewith is to be found in sub-section ( l) of section 13. Sub-section (2) merely illustrates the nature of the power. It Llocs not restrict the general power under sub-section (1). Even under clause (g) of sub-section (2) in particular the Rules may provide the\n\ntcnn~ on which and the conditions subject to which any mining foasc may be granted or renewed.\n\nSub-Ruic ( 1) of Ruic 27 requires every mining lease to be subjected to the conditions enumerated in clause (:i) to (n) and such conditions have got to be incorporated in every mining lease.\n\nThe conditions enumerated in clause (a) to (o) of Sub-Rule\n\n(2) arc optional and n mining lease may contain such other conditions ; i_s the State Government may deem necessary in regard to them.\n\nRule 27(1)(c) reads as follows: \"The Jca.e hall pay, for c\\'cry y<.!ar, except the first year nf the leas.:, such yearly dead rent within the limits specified\n\nsso SUPREMB COURT ltEPORTS\n\n/ J 975] JS.CR.\n\nln-Schedule IV as may be fixed from time to time by the State Government and if the lease permits the working of more than one mineral in the same area, the State Govem· -ment may charge separate dead rem in respect of each\n\n111ineral :\n\nProvided that the Jessee shall be liable to pay the dead rent or royalty in respect of each mineral whichever be higher in amount but not both.\"\n\nThere is no element of uncertainty in the Ruie either in regard to the grant 'Jf fresh lease or in respect of the renewal.\n\nThe yearly dead rent to be fixed from time to time by the State Government cannot exceed t'le limit specified in Chapter IV.\n\nThe maximum limit is therefore certain. To provide for payment of dead rent at a specified rate s11bject\n\nto variation within the limit specified in Schedule IV, is a term which cannot be said to be void on account of uncertainty, nor is it beyond the Rule making power c,0nferred on the Central Government under section 13 of the Act.\n\nThe 4th and 5th points urged on behalf ol' the appellant therefore fail.\n\nRule 27(1) makes it incumbent to subject every mining lease to the conditions enumerated in that subrule. The renewal of lease cannot be outside Rule 27 (I). A lease granted under the Rules and the renewal made thereunder will nci. occasion any difficulty at all in. the application of the conditions enumerated in sub-mle (1) to both. But the scope for .argument in this case arose because .the original lease wa.~ granted in 1941 by the erstwhile State.\n\nThe modifications were made in the year 1959 in accordance with the Act of 1957 and the Mining Leases (Modification of Term~) Rules, 1956. The Rules of 1960 were then not in existence. The question which deserves careful consideration, therefore, is-whether there is any substaoce in dtber of the first or second points urged on behalf of the appellant.\n\nThe Controller of Mica leases prepared a note and passed a final order on the 20th November, 59 recording the modifications of the terms of the mining lease dated 12-8-1941 specifically stating therein that the said foase was for 20 years \"without a renewal clause\". After providing that ·dead rent. shall be payable at the rate of Rs. 6/- per acre per annum\", it was mentioned \"The following clause shall be decflled to be inserted in the Jease deed and shall form part thereof : ) \"Except for the modifications made by this order, the .tease shall be subject to the Rules made or deemed to have\n\nbeen made under sections 13 and 18 of the Mines and Minerals (Regulation and Development) Act, 1957 (No. 67 of l-9~7).''\n\n. It.was submitted on behalf of the appellr.nt that when renewal: of the lease was granted under Rule 28 of the Rules then the State Government was bound to act upon and incorpc>rate the new clause inserted in the original lease by order dated 20-11-1959; , In other words, it was contended that the renewed lease had to be granted on the same terms and conditions.\n\nNo term and condition coUld be varied while\n\n' ~\n\nSUDARSHAN MINERAL co. v. UNION (Untwalia, J.) 55 l\n\ngranting the renewal of the lease except in regard to the reduction of the area in accordance with sub-Rule (5) of Rule 28. That being so, the agreement stressed was that in view of the new clause operation of Rule 2 7 (1) ( c) was excluded in regard to the dead rent, it was not payable at any rate different from Rs. 6/- per acre.\n\nIn our judgment the argument though attractive is not fruitful.\n\nIf in the original lease there would have been a renewal clause giving a right to tlie lessee to have the renewal of the lease for another period of 20 years at its option one could probabily say that the renewal had to be on the same terms and conditions.\n\nIn that event the new clause inserted in the original lease by order dated 20-11-1959 could possibly be said to overri9e the mandatory requirement of Rule 27(1) (c). But in absence of such a right of renewal to the -lessee the said clause was operativeand effective only during the period of the original lease i.e. upto 11th August, 1961. The lease renewed thereafter was a renewal of the origipal 1ease ia one sense and a fresh lease in another.\n\nWhile granting a fresh lease the Governmental authority has no power to relax the mandatory requirement of sub-Rule (1) of Rule 27 of the Rules.\n\nBy agreement it cannot take the conditions of the lease out of the said provision. It is, therefore, clear on the facts and in the circumstances of this case that while granting the renewal of the lease, the authority was neither bound nor empowered to incorporate a condition in the lease against clause\n\n(c) of Rule 27(1). The demand of dead rent at Rs. 20/- per hectare i.e. Rs. 81per acre was within the limits specified in Schedule IV of the Rules and there was no mfirmity in it.\n\nFor the reasons stated above we !ind no merit in this appeal.\n\nIt is accordingly dismissed with costs.\n\nP..H.P. . Appeal dismissed;\n\n4-470SCl/75", "total_entities": 48, "entities": [{"text": "SUDARSHAN MINERAL CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "SUDARSHAN MINERAL CO. LTD", "offset_not_found": false}}, {"text": "UNION OF INDIA & ANR", "label": "RESPONDENT", "start_char": 28, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ANR", "offset_not_found": false}}, {"text": "February 13, 1975", "label": "DATE", "start_char": 49, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "UNION OF INDIA & ANR February 13, 1975\n\n54 7\n\nLK."}}, {"text": "LK. K. MATHEW", "label": "JUDGE", "start_char": 74, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 89, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "12th August, 1941", "label": "DATE", "start_char": 575, "end_char": 592, "source": "ner", "metadata": {"in_sentence": "The appellarrt was granted a Mining Lease by the erstwhile State of Shahapurn for a period 20 years commencing from 12th August, 1941."}}, {"text": "State of Rajasthan", "label": "ORG", "start_char": 681, "end_char": 699, "source": "ner", "metadata": {"in_sentence": "of the State of Rajasthan."}}, {"text": "1st June, 1958", "label": "DATE", "start_char": 782, "end_char": 796, "source": "ner", "metadata": {"in_sentence": "Development) Act, 1957, came into force from 1st June, 1958."}}, {"text": "section 61", "label": "PROVISION", "start_char": 804, "end_char": 814, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 973, "end_char": 982, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 984, "end_char": 994, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajasthan Government", "label": "ORG", "start_char": 1614, "end_char": 1634, "source": "ner", "metadata": {"in_sentence": "The a Hant challenged t11e order of Rajasthan Government by filing a Revision befor the Central Oovrn\n\nment which was dismissed."}}, {"text": "20-11-1959", "label": "DATE", "start_char": 2176, "end_char": 2186, "source": "ner", "metadata": {"in_sentence": "20-11-1959 the lase was to be governed by the A, ct and the Rules except in/\" regard to dea.d."}}, {"text": "section 13", "label": "PROVISION", "start_char": 2868, "end_char": 2878, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 2987, "end_char": 2997, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n13(2)", "label": "PROVISION", "start_char": 3049, "end_char": 3063, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVlL APPELL\\JE JURISDICTION", "label": "PETITIONER", "start_char": 4172, "end_char": 4200, "source": "ner", "metadata": {"in_sentence": "The appeal was dismis!1ed with :o\\tS.\n\n[55 JB .. D)\n\nCIVlL APPELL\\JE JURISDICTION : Civil Appeal No."}}, {"text": "P. C. Bhartari", "label": "LAWYER", "start_char": 4389, "end_char": 4403, "source": "ner", "metadata": {"in_sentence": "P. C. Bhartari, for the Apoellant."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 4425, "end_char": 4439, "source": "ner", "metadata": {"in_sentence": "Girish Chandra, foe Respondent No."}}, {"text": "S. M. la.in", "label": "LAWYER", "start_char": 4464, "end_char": 4475, "source": "ner", "metadata": {"in_sentence": "J.\n\nS. M. la.in, for Respondent No."}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 4544, "end_char": 4552, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nUNTWALIA, J. This is a plaintiff's appeal by special leave of this Court from the Judgment and decree of the Rajasthan High Court whereby the plaintiff's second appeal from the decision of the First Appellate Court was dismissed and the dismissal of its suit was maintained."}}, {"text": "Shahpura", "label": "GPE", "start_char": 4993, "end_char": 5001, "source": "ner", "metadata": {"in_sentence": "The plaintiff was granted a mining lease for mining mica by the erstwhile State of Shahpura for a period of 20 years commencing from the 12th August, 1941."}}, {"text": "section 6(1)", "label": "PROVISION", "start_char": 5343, "end_char": 5355, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 5547, "end_char": 5556, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 5558, "end_char": 5568, "source": "regex", "metadata": {"statute": null}}, {"text": "24th October, 1949", "label": "DATE", "start_char": 5653, "end_char": 5671, "source": "ner", "metadata": {"in_sentence": "Section 16 confers power on the approi:riate authority to modify a mining lease granted before 24th October, 1949 to bring it in conformity with the Act and the Rules made thereunder."}}, {"text": "Nagpur", "label": "GPE", "start_char": 5877, "end_char": 5883, "source": "ner", "metadata": {"in_sentence": "In exercise of this power and in accordance with the Mining Leases {Modifications of Terms) Rules, 1956 the Controller of Mica Leases, Nagpur, reduced the mining area of the appellant lease to 10 sq."}}, {"text": "November 20,\n\n1959", "label": "DATE", "start_char": 5967, "end_char": 5985, "source": "ner", "metadata": {"in_sentence": "miles by his order dated November 20,\n\n1959."}}, {"text": "August H, 1961", "label": "DATE", "start_char": 6329, "end_char": 6343, "source": "ner", "metadata": {"in_sentence": "The period of 20 years of the original lease came to an end on August H, 1961."}}, {"text": "Government of Rajasthan", "label": "ORG", "start_char": 6374, "end_char": 6397, "source": "ner", "metadata": {"in_sentence": "The appellant applied to the Government of Rajasthan for renewal of its lease for another 20 years."}}, {"text": "Mineral Concession Rules, 1960", "label": "STATUTE", "start_char": 6494, "end_char": 6524, "source": "regex", "metadata": {}}, {"text": "December 13, 1961", "label": "DATE", "start_char": 6617, "end_char": 6634, "source": "ner", "metadata": {"in_sentence": "The Government of Rajasthan granted the renewal by order dated December 13, 1961 for a period of 20 years\n\nSUDARSHA'i \\1!NERAL co. v. UNION (Untwalw, J.) 549with effect from August 12, 1961."}}, {"text": "August 12, 1961", "label": "DATE", "start_char": 6728, "end_char": 6743, "source": "ner", "metadata": {"in_sentence": "The Government of Rajasthan granted the renewal by order dated December 13, 1961 for a period of 20 years\n\nSUDARSHA'i \\1!NERAL co. v. UNION (Untwalw, J.) 549with effect from August 12, 1961."}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 7076, "end_char": 7090, "source": "ner", "metadata": {"in_sentence": "Thereupon it filed a suit against the Union of India, respondent no.", "canonical_name": "UNION OF INDIA & ANR"}}, {"text": "State of Raja.than,", "label": "RESPONDENT", "start_char": 7117, "end_char": 7136, "source": "ner", "metadata": {"in_sentence": "l and the State of Raja.than, respondent no."}}, {"text": "Y. S. Chitlay", "label": "OTHER_PERSON", "start_char": 7529, "end_char": 7542, "source": "ner", "metadata": {"in_sentence": "Mr. Y. S. Chitlay, learned counsel for the appellant, pressed the following five points in support of this appeal :\n\nll) Under the agreement dated 20-11-1959 the lease was to be governed by the Act and the Rules except in regard to dead rent whicli was fixed at Rs."}}, {"text": "section 13(2)", "label": "PROVISION", "start_char": 8110, "end_char": 8123, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 8691, "end_char": 8701, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule IV", "label": "PROVISION", "start_char": 9600, "end_char": 9611, "source": "regex", "metadata": {"statute": null}}, {"text": "s11", "label": "PROVISION", "start_char": 10327, "end_char": 10330, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule IV", "label": "PROVISION", "start_char": 10380, "end_char": 10391, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 10519, "end_char": 10537, "source": "ner", "metadata": {"in_sentence": "To provide for payment of dead rent at a specified rate s11bject\n\nto variation within the limit specified in Schedule IV, is a term which cannot be said to be void on account of uncertainty, nor is it beyond the Rule making power c,0nferred on the Central Government under section 13 of the Act."}}, {"text": "section 13", "label": "PROVISION", "start_char": 10544, "end_char": 10554, "source": "regex", "metadata": {"statute": null}}, {"text": "20th November, 59", "label": "DATE", "start_char": 11532, "end_char": 11549, "source": "ner", "metadata": {"in_sentence": "The Controller of Mica leases prepared a note and passed a final order on the 20th November, 59 recording the modifications of the terms of the mining lease dated 12-8-1941 specifically stating therein that the said foase was for 20 years \"without a renewal clause\"."}}, {"text": "12-8-1941", "label": "DATE", "start_char": 11617, "end_char": 11626, "source": "ner", "metadata": {"in_sentence": "The Controller of Mica leases prepared a note and passed a final order on the 20th November, 59 recording the modifications of the terms of the mining lease dated 12-8-1941 specifically stating therein that the said foase was for 20 years \"without a renewal clause\"."}}, {"text": "sections 13 and 18", "label": "PROVISION", "start_char": 12068, "end_char": 12086, "source": "regex", "metadata": {"statute": null}}, {"text": "11th August, 1961", "label": "DATE", "start_char": 13621, "end_char": 13638, "source": "ner", "metadata": {"in_sentence": "But in absence of such a right of renewal to the -lessee the said clause was operativeand effective only during the period of the original lease i.e. upto 11th August, 1961."}}, {"text": "Schedule IV of the Rules", "label": "STATUTE", "start_char": 14323, "end_char": 14347, "source": "regex", "metadata": {}}]}
{"document_id": "1975_3_552_562_EN", "year": 1975, "text": ".. \" .,\n\nPRABHU NARAYAN v.\n\nA. K. SRIVASTAVA ' February 14, 1975 [A. ALAGIRISWAMI, V. R. KRISHNA lYER AND R. S. SARKARJT, JJ.)\n\nRepresentation of the People Act (43. of 1961) Section 83 and 123 011d B Co11tlucr of Election Rules, 1'. 94A-Proviso to s. 83( 1 )-Scope of.\n\nIn the election to the State Legislative Asembly the responent wa_s declared elected and the appellant, the congress cand1datc. fild an electiOn pehtion chat- Jenging the election on various grounds, one of wh1ch was that the respondent was guilty of corru.pt practice under s. 123 ( 4) of the Representation of th Pcopb Act. 1951, in that cer_ta-if! pamphlets were published by him or with hi~ consent. The petition was dtsmtssed by the High Court,\n\nAllowing the appeal to this Court, C HELD : 1 (a) There is no substance in the preliminary objection of the respondent that th~ elccti(;>n petition hould have been dismissed on -the ground that it did not comply w1th the rcqutremcnts of s. 83 of the Act and that the evidence of printing the pamphlets, in any event, should not have been admitted. [553D-FJ ·\n\nThe charge against the respondent in the election petition w~ that the respondent was responsible for the publication of the pamphlet5 and not their D printing.\n\nEvidence regarding printing was only relied upon to corroborate the evidence regarding distribution of the pamphlets.\n\nWhen s. 123(4) speah of publication it means distribution. Therefore, failure to give particulars of the printing in the affidavit in support of the election petition cannot lead to the dismissal of the petition: nor could evidence regarding it be shut out.\n\nThe proviso to s. 83( 1) lays down that where the petitioner alleges any corrupt practice the petition should also be accompanied by an affidavit in the prescribed form in support of the allegation ot soch corrupt practice and the particul~ E thereof. It does not say that the allegation of corrupt practice and particulars thereof .should be given in the affidavit. Th: election petition contains the allegations of corrupt practice and particulan thereof. The Form 25, which i!\n\nthe one preribed under r. 94A of the Conduct of Election Rules also shoW'! that this was the intention of the l.egislature. Jn the present cnse the affidavit\n\nfiled in support of the election petition is in accordance with. that prescribed form.\n\n[.S.HF-H] Viumlra Kumar Saklrcha v.\n\nJaRiivan. [19721 1 SCC 826 nnd Krishon F Clwndu v. Ram Lal. [1973] 2 SCC 789, referred to.\n\n_ ..$;\n\n(b) Funhermore, according to s. 86 of the Act only petitions which do not com ply with the provisions of srs. 8 t 82 nnd 1 17 are Jiable to be dismissed. \\~\n\n{5SSC] '\n\n(2) The High Court was wrong in rejecting wholesale every bit of evidence adduced on behalf of the appelhmt.\n\nEven taking the evidci'\\Ce adduce~ on\n\nhehlf of the nppellant of nly n-on-congress witnes~~- that evidence est:Jbltsher G that the people who got pn nted the variou~ pamphlet5 are clase supporterc; 0 the rec; pondcnt.\n\nThoo; e persons hud no pedal grievance against the oppellnt but all the pamphleh have been printed with the definite purpose of h3r0ltng the chance~ of the 2ppellant in the election and threbv aiding thoe of\n\n1~ re-.pondent.\n\nTh~ plan and the direction could therefore have come onlv fro:;' one \\.Ource and that i~ the rt\"\">pondent.\n\nHence, it muc; t be held th~ t respondent Wll' uihy of the corrupt pr:ctice under \\. 123(4) in rc~~-t of thramrhlct\\. (561 D-E. G; ~62C] il\n\nCiVIL APPtLL.\\Tr. JcRtSDICTIO~: Civil Appeal No. 117~ o( 1973\n\nFrom the judpnent and order dated the 5th April. 1973 of tbe bdhya Prde\\h High Court in Election Pdition No. 29 of 1972.\n\n_ ...... ......-\n\nP. NARAYAN V, A. K. SRIVASTAVA (A/agiriswami, J.) 55 3\n\nY. S. Dharanwdhikari, T. P. Naik and A. G. Ratnaparkhi, for the\n\nappellnt.\n\nS. K. Gambhir and V. J, Francis, for the respondent.\n\nThe Judgment of the Conrt was delivered by\n\nALAGIRISW AMI, J. In the election held on 11th March, 1972 to the Legislative Assembly of Madhya Pradesh from Dar1oh constituency the respondent, an independent candidate, Was declared elected. The appellant, the Congress candidate filed an election petition for declaring the election of the respondent void on various grounds all of which were found not proved by the learned Judge of the High Court of Madhya Pradesh who tried the petition. The petition was consequently dismissed and this appeal is against that dismissal.\n\nWe are concerned only with the charge of corrupt practices under section 123 ( 4) of the Representation of the People Act in respect of five .pamphlets marked Exs. P-3, P-4, P-5, P-6 and. P-8 and two public meetings held on 4-3-1972 and 8-3-1972. .\n\nAt the beginning of the arguments an objection was raised on behalf of th~ respondent that the election petition should .have been dismissed on the ground that it did not comply with the requirements of section 83 of the Representation of the People Act. This was on the basis that the affidavit filed in support of the election petition did not give details as to the material particulars in respect of the various corrupt practices with which the respondent was charged. It was argued in the alternative that in any case no evidence should have been admitted.\n\nAs far as this appeal is concerned both amount to the same thing because charges with which we are concerned are charges under section 123 ( 4) . We do not think that there is any substance in this contention on behalf of the respondent.\n\nOn behalf of the appellant it was made clear that the only charge made in the petition was the charge of publication of the pamphlets and not their printing and evidence regarding the printing was relied upon only to corroborate the evidence regarding distribution of the pamphlets.\n\nIt is obvius that when section 123 ( 4) speaks of publication it means distribution.\n\nMereprinting of the pamphlets would not fall under section 123 ( 4). Therefore the failure to give particulars of the printing cannot lead to the dismissal of the petition. Nor could evidence regarding it be shut out.\n\nThe proviso to section 83 (1) lays down that where the petitioner alleges any corrupt practice, the petition shaH also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It does not say that the allegation of corrupt practice and particulars thereof\n\nshor.d be given in the affidavit. The election petition contains the allegation of corrupt practices and particulars thereof. That this is the intention of the Legislature is also clear from a perusal of Form 25, which is the one prescribed under Rule 94A of the Conduct of Elections Rules. The affidavit filed in support uf the election petition is in accordance with that form.\n\nReliance Wa)) placed en behalf of the respondent on the decision of this Court in Virendra Kumar Saklecha v. Jagjivan C). In that case Rule 9 of the Madhya Pradesh High Court Rules in respect of election petitions, which states that the rules of the High Court shall apply in so far as they are not inconsistent with the Representation of the People\n\nAct, 1951 or other rules, if any made thereunder or the Code of Civil Procedure in respect of all matters including inter alia affidavi's, was reierred to.\n\nOn the basis of that rule Rule 7 of the Madhya .Pradesh High Court Rules which states that every affidavit should clearly express how much is a statement made on information or belief and must also state the source of or grounds of information or belief with sufficient\n\nparticultuity, was stated to mean that grounds or sources of information art! to be Set out in the affidavit.\n\nThis would really mean that the ailegations found in the body of the election petition would have to pe repeated in the affidavit.\n\nHowever, in that case the failure to conform to Rule 9 and Rule 7 of the Madhya Pradesh High Court Rules was not held to be fatal to the elction petition. What was said was that it would be helpful in assessing the value of the evidence. But that purpose is served by the allegations in the election petition itself.\n\nMoreover, it appears to us that the provisions of Rule 9 of the Madhya Pradesh High Court Rules regarding the election petitions framed by the Madhya. Pradesh High Court by reference to Rule 7 of the Madhya Pradesh High Court Rules found in Chapter III regarding affidavits cannot be made use of for this purpoe. The former set of rules are made under Article 225 of the Constitution and cannot make qny substantive law and the rules themselves on a perusal of them woufd show that tney relate merely to procedural matters unlike rules made under section 122 of the Code of Civil Procedure.\n\nIn Krishan Chander v. Ram Lal('2) it was pointed out that :\n\n\"When there are specific Rules made under the Act which govern the election petitions, no other Rules are applicable.\n\nNor is disclosure of the source of information a requisite under Order 6, Rule 15 ( 2), C.P .C. Decisions rendered under Order 6, Rule 15 and Order 19, Rule 2 of the Code of Civil Procedure have no relevance and do not support the submission that if the affidavit in support of the petition does not state the source of information on which the several allegations in the petition are based, those allegations cannot be deeme(1 to have been made . .._\n\nThe provision for setting out the sources of information where the allegations have been verified as having been made on information and knowJedf!e of the petitioner is not a requisite prescribed under Rule 94-A of the Conduct of Election Rules, 1961, which are appiicable to the fi1ing of an election petition.\n\nThe affidavit in support of an eleotion petition need not itself disclose the sources of information.\n\nThe election petition under Section 83 (1) (b) itself must contain all the\n\n(l) [1972J 1 sec 826.\n\n(2) [1973] 2 sec 759.\n\nP. NARAYAN V. A. K. SRIVASTAVA (AJagiriswami, J.) 55 5\n\nparticulars thalt are necessary and in the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petitiop. are true fto his knowledge and which of them are true to his information. 1f any sotJrce of information has not been set out and the respondent cannot answer them without particulars, he can always apply for better particulars. If the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of the information have not bee!1 given, the allegations made in the petition have to be ignored.\" This accords with the view which we have taken.\n\nFurthermore, according to section 86 of the Representation of the People Act only petitions which do not comply with the provisions of Section 1 or .\n\nSection 82 or Section 117 are liable to be dismissed. We, therefore, overrule the preliminary objection.\n\nWith respect to these five documents there is no dispute tat they fall within the mischief of section 123 ( 4) and it is'1herefore unnecessary to set out the contents of these pamphlets, nor was it seriously contended except in the case of Ex. p_g that they were not circulated. The only l]uestion is whe.thcr the circulation was made by the respondent or with his consent.\n\nIn considering this question it is important to bear in mind that all the persons who admit that they printed these pamphlets are workers of the respondent. We will deal with the evidence in dw.~ course.\n\nIt is necessary to go into the question cf the printing of these t\"amp}!Iets because evidence regarding it will have a bearing on their distribution either by the respondent or by his supporters with his consent.\n\nThough as many as 67 witnesses were examined and 28 of them with regard to publication, the learned trial Judge has rejected all of them. Where the question of publication and distribution is a matter to be decided on the basis of oral evidence, it is easy to dispose•of them by saying that it is of persons interested in the appellant. That is why a discussion of the question regarding the printing should provide a satisfactory method of assuring cneself as to whether the distribution was .made as aileged by the appellant.\n\nWe shall now tal~·~ up the question regarding .Ex.P-3 first. It has admittedly been printed by M. S. Suman. It was printed at Chhabi Pri'ating Press.\n\nThis M. S. Snman was polling agent of the respondent. Chhabi Printing Press was next to the residence of the respondent.\n\nP.W.66, the son of the owner of the printing press gave evidence that the manuscript for the pamphlet '''as given to Suman for correction a'!1d the respondent himse1f made the correction. P.W.67\n\ngave evidence that Suman placed the order for Ex.P-3 and produced the Or!cr Book, Ex.P-19.\n\nHe also gave evidence that the manuscript was given to him by the respondent who was accompanied by Suman\n\nand one Vi~::>d Kumar Rai.\n\nExs. R.9 and R.lO are the declarations in respect of the pamphlet given by Suman. Admittedly also the respondent had phced other orders with Chhabi Printi'ng Press.\n\nEx.P-3 and Ex.P-52 show that one of the payments out of the tot•al sum of Rs. 130 mentioned in these receipts corresponds to a sum of Rs. 50 said to have been paid for this printing.\n\nEx.P-52 was\n\nfiled by the respondent along with the account of his election expenses.\n\nP. W .1 gave evide'11ce that Suman worked for the respondent in the election and he and Vijay Kumar Agarwal, who is responsible for the printing of Ex.P-4, accompained the respcndent on his eJection propaganda.\n\nRespondent's witness, Vi jay. Kumar Malaiya, R.W. 3, also admits that Suman worked for the respondent. Therefore, even if that part of the evideace of P. Ws.66 and 67, where they speak to the respondent's part in the printing of this pamphlet is not accepted. it is obvious that Suman isa person very much interested in the respondent and there is no particular wason why he should print a defamatory parr:phlet against the appellant.\n\nWe are leo to believ~ that inspirati<Ya for printing that pamphlet must have come from the\n\nrspondent. We are not impressed with the evidence of Suman that t!1c poamph; cts were not handed over to him before 11.3. 72 and so it was not distributed. It was merely an attempt indirectly to deny di.stribution.\n\nHe even went to the extent of saying that he did not \\VOrk for the respondent.\n\nThe next pamphlet is Ex. P-4. 1t was got printed by one Vijay Kumar Agarwal, ~- mere boy of 14 or 15 years. It was printed at th~ Jawahar Pre£.s where his foather:s paper \\vas printed. According to Vijay Kumar Agarwal, who was examined as R.W.18, he got this Ex.P-4 printed because Ex.R-24 contained the merits of the appellant and the dem<rits of the respondent. But Ex.R-24 does not say anything about the merits of the appeUant.\n\nH~ says that he gave the order for printing it at 8.30 p.m. a',1cl lu got it at 11.30 p.m. and he\n\ndisributcd it to any person who met him in the bazar and went home\n\nthcreal:ter, We are unable to accept this part of the evidence. This is merely an attempt to belittle the distribution.\n\nThough he also gives as •a reason for his printing Ex.P-4 t11at his father was called to the police station, that was nearly four years earlier and that is hardly likely to be a retLson for his printing it.\n\nHe went to the extent of saying that he did not work for the respondent in the election and he did not support trc respondent in the election.\n\nA reading of the pamphlet clearly shows that it could not be his h•andiwork, that the brain behind it is some body else's, whether it is Smltosh Bharti's to whom he took it or nor.\n\nHe is one of the persons whose name promi-\n\nIhntly appears among those who worked for the respondent in the\n\nclect'ion. He is also a young boy of 14 or 15. Here again we are led to believe that Ex.P-4 was not printed by Vijay Kumar Agarwal on his own but that it should have bee'.l done at somebody else's ins-\n\n'ance and that being incompatible with any other author, could only be the respondent.\n\nExhibit P .5 was printed by one Dm Prakash Rai.\n\nIt was printed at the Chhabi Printing Press on 18-2-72. This Om Prakash Rai was a wry prominent worker of the respondc,, t.\n\nThe respondent did not even dare to put Om Prakash Rai on the witness stand to deny tbe fact that he printed Ex.P-5 with the consent of the respondent. 1-lc was so deeply committed to the respondent that it would have been vcrv difficult £or him to explain why he printed it. In the circumst:.inces we do not think that the learned judge was corect in rejecting\n\nP. NARAYAN V. A. K. SRIVASTAVA (A/agiriswami, J.) 55 7\n\nthe evidence of P.Ws! 66 and 67 who speak to the respondent's part in it and the paynent made by him.\n\nWe see no improbability in the receipt for the payment being dated 27.2.1972 and !he payment being made on 18.2.1972. This expenditure also is shown in respondent's account of the election expenses.\n\nThen we come to Ex.P-6. This purports to have been published by a certain Jagruk Matdat'a Parishad. Whether there was such a Parishad or not, there was a Samyukta Morcha and that Morcha was supporting the respondent. It consisted of almost all non-Congress parties. The declaration in respect of this document was given by one Ajit Modi who also is an active worker of the respondent. His brother and father also were respondent's partisans. Our conclusion about this document is the same as in respect of the other documents.\n\nThe last document for consideration is Ex.P-8. It was printed in the Kailash Printing Press and the son of the proprietor was ex•amined as P.W.64.\n\nHe spoke to the responde11t's part in the printing of this document. One of the reasons for disbelieving him was that his father\n\nnlso gave evidence. But his father did not gie any evidence prejudicial to the respondent. The printing of this p phlet was admitted by R.W.2, Ramesh Clrand Jain, an advocate, o got it printed along: with Atul Kumar Shrivastava, a cousin of ; the respondent. But their .case was that it was. printed in order to prent it to the Chief Minister, Mr. P. C. Sethi when he was ex.pected)o visit Damoh on 28-2-1972 and as he did not do so the pamphlets were destroyed: It is an impossible story and we refuse to believe it. If they wanted-to make\n\nan~ representation it was not necessary to print 2000 copies.\n\nWe do not believe those would have bee•,, destroyed.\n\nThis again is an attempt to meet the case of distribution. Both Atul Kumar Shrivastaya and Rames11 Chand Jain are very strong partisans and workers for the respondent and here again we are satisfied that they should have been printed with the consent of the respondent.\n\nThe learned Judge has, as we have already observed, disbelived all the cvide1ace on behalf of the appellant. If the witness was a Congress man he was not to be believed as he was a Congress lJlan. The respondent would not have been foolish enough to handover the pamphlets to the witness. If he was a non-Congress man he was a\n\ntcmilnt of a Congress man or a tenant of a relative of a Congress man and therefore could not be believed. In certain cases he has disbelieved the evidence of witnesses on the ground that they were not on visiting terms with the respondent. But elections being what they arc no candidate could afford to ignore a voter on the ground that the voter had not visited him nor be could be disbelieved on the ground that he had not gone to the voter earlier. Elections take the candidatcs to all sorts of places. If a witne5's said that he did not tell the appellant about his having received the pamphlet a doubt is raised as to how the appellant knew about the distribution of the pamphlet.\n\nI\\.fany of 'the criticism are very unsubstantial. However we would discuss this question solely o'a the evidence of non-Congress witnesses and . show how the evidence regarding distribution is quite 'Jcceptable.\n\nP.W.l is a member of the Bhartiya Jan Sangh. He is the Vice- President of the Mundal Jan Sangh of Damoh. The respond(mt had the support of the Bhartiya Jan Sangh Bhartiya Kranti Dal and. Congress ( 0). He had gone along with Om Prakash Rai for canvassing for the respondent.\n\nVijay Kumar Agarwal •and Suman also accompained him.\n\nAccording to this witness Raghubar Modi, father of Ajit Modi, who printed Ex.P-6, Umanath Agarwal father of Vijay Kumar Agarwal, and Vinod R•ai were workers of the respondent.\n\nOm Prakash Rai was an active canvasser in the election campaigll of the respondent. The only criticism against him was that he is a tenant of Shri Prabhud•ayal Mukhariya, a good Congress worker. Om Prakash Rai is a'J1 active member of the Jan Sangh.\n\nWe see no reason why his evidence as far as it goes cannot be accepted. It helps to fix the role of many of the persom who played an important part in the publication of the pamphlets.\n\nP.W.2 is a doctor holding a M.B.B.S. degree, who has been practising in Damoh since 1936. He is a member of the Hindu Mahasabha.\n\nHe was also the President of the Hindu Maasabha at Danicih:and a Secretary of the Provincial Hindu Mahasabha. He speaks to having attended the meeting dated 4th March, 1972 and of Vijay Kumar Malaiya, Om Prakash Rai, and Raghubarprasad Modi father of Ajit Modi, being present on the dais and to the respondent proposing Vijay Kumar Malaiya to the Chair. Om Prakash Rai also spoke at that: meeting. He also speaks to the respondent having given him Exs.P-3, P-4 and P-5 on 1Oth March. 1972. It was elicited from him that he was a tenant of a cousin of the 'appellant. To a question by the Court he said that he had no visiting terms with the respondent but he added that the respondeat must have come to his house as he was distributing the leaflets.\n\nWe see no reason; why this witness should not be believed. The learned judge's criticism regarding this witness and the rejection of his evidence cannot be supported.\n\nP.W.4 is a kirana shopkeeper.\n\nHe had taken no interest in the election of any candidate.\n\nHe speaks about the meeting pr(!ided over by Vijay Kumar Malaiya who was proposed by the respondent as the president. He speaks to Raghubar Prasad Modi speaking at that meeting as also to Om Prakash Rai's speech. He speaks to the presence of P.W.2 at that meeting.\n\nP.W.5 is a retired Sub-Inspector of Police. He speaks to his having attended the n1eeting on 4-3-1972 and refers to the speech made by Raghubar. Prasad Modi, Om Prakash Rai and the respondent.\n\nHe also speaks to the respo•adent having given him Exs.P-3, P-4 & P-5 on lOth March.\n\nHe was :1ot working for any candidate in the election.\n\nA suggestion made to him was that his brother was sentenced to death in a murder c'JSe and the murdered man was a relative of the respondent. . ·\n\nP.W.6 does not be'la.1g to any political party nor did he work for any of the candidates in the election. He speaks to the rJeeting held on 4th March 1972 to support the respondent addressed by Om Prakash Rai, Vijay umar Malaiya and also to the respondent giving him pamphlets Exs.P-3 and P-4. ·\n\nP. NARAYAN V. A. K. SRIVASTAVA (AJagiriswami, J.) 55 9\n\nP.W.7 is a retired Assistant Conservator of Forest and belongs to no political party a•ad he did not work for any body in the election.\n\npeaks to the respondent giving him Exs.P-3 and P-4.\n\nP.W.ll spe'aks to respondent having given him Ex.P-3.\n\nHe is not shown to belong to any party. ·\n\nP.W.l9 is a member of the Jan Sangh and he publishes a newspaper 'Bundeli Garjanis'. He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin.\n\nP.W.24 is a member of the Jan Sangh party who worked for the respondent in l1is election. He speaks to respondent givi•ag him Exs.\n\nP-3 and P-4. He speaks to Om Prakash Rai being present a1ong with the respondent at that time.\n\nHe speaks to respondent giving him 10 or 11 leaflets for distribution.\n\nP.W.26 worked for the respondent in his election. He speaks to respondent accompanied by Vinod Kumar Rai having come to his Mahalia and his being given leaflets for distribution. He also speaks of having gone to the respondent's house and having seen Vinod Kumar Rai there.\n\nP.W.65 is another witness who was engaged by the respondent to distribute the pamphlets.\n\nIt is unnecessary to go on multiplying the evidence.\n\nWe have deliberately excluded the evidence of Co11grcssmcn, Congress sympathisers or people who had worked for the Co'11gress candidate. It is interesting to see the way that the learned Judge boas dealt with this question of distribution.\n\nHe says that the respondent is a practising lawyer and had contested three elections and it does not look probable that he would have gone with Suman and Vinod Kumar Rai to the printing press for getti'.1g Ex.P-3 printed.\n\nP.W.2's evidence is not believed on the sole ground that if the respondent hoacf been careful enough to have Ex.P-3 printed through a worker he would not himself gq 0n distributing the pamphlet.\n\nThere is also a factual mistake in that the learned Judge seems to proceed on the basis that P.W.2 is a Congressma'1l which he is not. P.W.5's evidence is not accepted because he ad not told •anybody about the distribution of the pamphlet.\n\nP.W.6 is taken to be an interested witness because he had shown the pamphlet to the appellant.\n\nBut immediately thereafter the learned Judge goes on to say that it is worthy of note that no one amongst the witnesses, although they were local and some of them were very much interested i'a the oappellant, either gave the pamphlets said to be received by them to the appellant himself or to his brothers.\n\nWe do not see the interest for them to give the pamphlets to the appellant as the distribution seems to have been well-known. P.W.7 is said to be an interested witness because he said he only received rwo pamphlets and that he was not aware whether any pamphlets on behalf of the Congress candidate was distributed or not. P.W.ll is disbelieved o,, the basis that the respondent would not have had time to distribute it at !\">arr.oh having been present at village Bhuri some time c•arlier and in Bilai smile time later. It appears one has to pass through Damoh\n\non way from Bhuri to Bilai. Nor could we agr_ee that because . th_is witness's brother, who is an advoc&te was not g1ven a pamphlet. 1t 1s surprising that the respondent would himself distribute the :aewspaper and the pamphlet to the witness in the presence of his brother l~:twyer and involve himself in a corrupt practice. The substance of the .!earned Judge's criticism about most of the evidence regardjng distrib~ tion is that the respondent an advocate a person well seasO'J.1ed m election matt~rs would not himself distribute the pamphlets. The evidence of P.Ws.38 and 39 is not believed, one of the reasons for that being that respondent had engaged P.Ws. 26 and 65 for distribution, he himself would not do so. We CO'asider that the evidence of P.Ws.26 and 6.5 has been rejected on unsubstantial grounds.\n\nWe should mention, however: th•at \\ve do not place any reliance upon the evidence of Raghvendra Singh Hazari, R.W.S about the distribution of the pamphlets. We are thus satisfied that the distribution has b'; e11l made by the respondent himself in some cases as also through P.Ws.~6 and 65. The part played by his storng supporters and rel:atives in bringing into existence the various pamphlets goes to probabilise the distribution of the pamphlets either by the respondent or at his instance.\n\nWe shall now sec how the learned Judge deals with the question of printing. The leamed Judge considers that P.W.66 has been brought in simply to connect the respondent with Ex.P-3. Vijay Kumar Malaiya says that Raghubarprasad Modi of the B.K.D. as well as Ramesh Chand Jain used to attend sometime the meetings of the Samyukta Morcha. Raghubarprasad Modi is the proprietor of the Jawah'dl Printing Press.\n\nHe gives the names of Vijay Kumar Agarw<ll. Om Prakash Rai, Vinod Kumar Rai, Ramesh Chand Jain and Rammanohar Shrivastava the electio111 •agent of the respondem as respondent's supporters. He also says that whatever election campaign was done for the respondent by the Samyukta Morcha it was by occasion'Jl consultation with the respondent that he is not able to say whether each worker and supporter of the respondent did every thing in cmnection with the election in consultation with the respondent.\n\nHe speaks of Om Prakash Rai working for the respondei1t.\n\nR.W.2, Ramesh Chand Jain, gives the name of Raghubarprasad Modi, Ajit Modi's father as one of the members of the Samyukt'a Morcha. In the far-e of this evidence it is difficult to accept the respondent'~: evidence that Atul Kumar Shrivastav, Suman, Om Prakash Rai and Ajit Modi were not his agents; so also the assertion that Om Prakash Rai had never accompained him in his election campaign. Similarly his denial that he was not financed by the Samyukta Morcha and he himself did not finance it.\n\nHe however had to accept that Ramesh Chand Jain, Atul Kumar Shrivastav and Om Prakash Rai worked for him.\n\nHe went to the length of denying that the. cash memo Ex.P.Sl, which bears the name of his own election agent, Ram Manoharlal Shrivastava,\n\nrelates to his election expenses and he does not know who is that person.\n\nHe has filed Exs.P-52 and P-53 along with his election expenses and admits that Ex.P-52 is the ori!3ina1 of Ex.P-23 'and Ex.P-53 is the original of Ex.P-51.\n\nOnly thereaft'r was he compelled to tdmit\n\n. P. NARAYAN V. A, K. SRIVASTAVA (Afagiriswmni, ].)\n\n5G 1\n\nthat he had got some printi'ag done from the Chhabi Printing Press.\n\nHe even pretended that he did not know that R. K. Shrivastav•a's sigmture is found it Ex.P-53 and could not say whether he was the\n\nson of his election agent Rammanoharlal Shrivastava or not.\n\nR. K.\n\nShrivastava as well as Raghubarpras•ad Modi's son Suresh Chand were\n\nhis polling agents. He had to admit that Ex.P-68 bears the sigilaturc of Om Prakash R•ai, which is a declaration for Ex.P-5. He had also to admit that Ex.P-69 and Ex.R-21 bear Om Prakash Rai's signatures.\n\nHe had to admit that Ex.P-71. the declaration from for Ex.P-70, which was printed by him, beoars his signature and one of the identifying witness is Vinodkuniar Rai.\n\nHis extensive prevarication during the <:ourse of his evidence clearly shows that he is 11ot a person on whose evidencemuch reliance can be placed.\n\nSee paras 38 to 4Q and 43 to 47 of .\n\nC his evide.nce.\n\nIt is difficult to accept the assertion of Suman who says that he did not work for the election of the respondent. He was 'his polling agent and a person who gets a pamphlet like Ex-P-3 printed is certainly not a dish1terested person. , .\n\nAfter a thorough and an?Cious examination of the evidence in this case we have come to the conclusion thtat. the people who got printed Exs.P-3, P-4, P-5, P-6 and P-8 are close supporters of the respondent.\n\nThey have no special grievance against the appellant, ccrtai', lly not enough to make them go to the extent of having them printed of their own. Two of them. Vi, iay Kumar Agarwal and Suman are mere boys of 14 and 15. They have merely been made use of by somebody and that somebody in the proved circumstances of this case could only be the respo'adent. We arc; not able to accept the evidence of Vijay Kumar Agarwal that he got the pamphlets at 11.30 p.m. on the night of the 1Oth March and he distributed it to a few people. Nor are we able to accept the evidence of Suman that though he gave the matter for printing on the 1Oth he got the pamphlets only on the 11th and so he did not distribute them.\n\nWe find the evioence of P.Ws.66 and 6T that it was given for printi'11g on the 9th more acceptable. We are unable to accept the assertion of Ramesh Chand Jain that he got Ex.\n\nP-8 printed in order to hand it over to the Chief Minister when he was due to arrive at Damoh on he 28th of February but that he destroyed . them because the Chief Minister did not turn up.\n\nAll these p•amphlets have heen printed with a defh1ite purpose that is of harming the chances of the appellant in the election and thereby aiding the respondent. The plan and the direction could have come only fi-om one source that is the respondent. He has made use of his supporters, two of .them young boys of 14 and 15, to get the pamphlets printed in their names so that they could take the responsibility and he may disown the responsibility for them.\n\nWe have discussed the evidence of only non-Congress witnesses and we can.see no reason to reject them. We do not agree with the learned Judge who rejected wholesale every bit of evidence adduced on behalf of the appellant.\n\nWhether the evidence of F.Ws. 66 and 67 about the part played by the respondent with regard to the pamphlets -.printc.~..i in the Chhabi Printing Press and of Kailash Chand Nakra with\n\nTegard to the pamphlets printed in the Kailash Press are correct or 110t~\n\nwe are convinced beyond reasonable doubt that the respondent is the\n\n'guiding brain and hand behind all of them. He and his supporters must have planned all these things together.\n\nHe has m'ade his witnesses admit just enough so that a red herri.1g might be drawn across the trail and blame may attach to them and not to him. The fact that he is an •advocate or that it is the third election in which he is stand- B ing is •ao guarantee against his being responsible for this.\n\nThen there is the question of two meetings dated 4.3.1972 3nd 8.3.1972. We do not think it necessary to examine this branch of the case in view of the earlier findings.\n\nIn the result therefore we hold that the respondent is guilty of a corrupt practice under section 123 ( 4) in respect of the pamphlets C Exs.P-3, P-5; P-6 and P-8.\n\nThe appeal is •allowed and the respondent's election is declared to be void.\n\nTh~ respondent will pay the appellant's costs.\n\nAppeal allowed.\n\nV.P.S.", "total_entities": 128, "entities": [{"text": "PRABHU NARAYAN", "label": "PETITIONER", "start_char": 9, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "PRABHU NARAYAN", "offset_not_found": false}}, {"text": "A. K. SRIVASTAVA", "label": "RESPONDENT", "start_char": 28, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "A. K. SRIVASTAVA", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 66, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "A. 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"end_char": 9049, "source": "regex", "metadata": {"linked_statute_text": "Pradesh High Court by reference to Rule", "statute": "Pradesh High Court by reference to Rule"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9053, "end_char": 9080, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 9563, "end_char": 9594, "source": "regex", "metadata": {}}, {"text": "Section 83", "label": "PROVISION", "start_char": 9788, "end_char": 9798, "source": "regex", "metadata": {"linked_statute_text": "the Conduct of Election Rules, 1961", "statute": "the Conduct of Election Rules, 1961"}}, {"text": "sec 826", "label": "PROVISION", "start_char": 9849, "end_char": 9856, "source": "regex", "metadata": {"linked_statute_text": "the Conduct of Election Rules, 1961", "statute": "the Conduct of Election Rules, 1961"}}, {"text": "sec 759", "label": "PROVISION", "start_char": 9872, "end_char": 9879, "source": "regex", "metadata": {"linked_statute_text": "the Conduct of Election Rules, 1961", "statute": "the Conduct of Election Rules, 1961"}}, {"text": "P. NARAYAN", "label": "JUDGE", "start_char": 9882, "end_char": 9892, "source": "ner", "metadata": {"in_sentence": "P. NARAYAN V. A. K. SRIVASTAVA (AJagiriswami, J.) 55 5\n\nparticulars thalt are necessary and in the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petitiop.", "canonical_name": "P. NARAYAN V"}}, {"text": "AJagiriswami", "label": "JUDGE", "start_char": 9914, "end_char": 9926, "source": "ner", "metadata": {"in_sentence": "P. NARAYAN V. A. K. SRIVASTAVA (AJagiriswami, J.) 55 5\n\nparticulars thalt are necessary and in the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petitiop.", "canonical_name": "ALAGIRISW AMI"}}, {"text": "section 86", "label": "PROVISION", "start_char": 10668, "end_char": 10678, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 10686, "end_char": 10718, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 1", "label": "PROVISION", "start_char": 10777, "end_char": 10786, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 82", "label": "PROVISION", "start_char": 10793, "end_char": 10803, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 117", "label": "PROVISION", "start_char": 10807, "end_char": 10818, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 10993, "end_char": 11004, "source": "regex", "metadata": {"statute": null}}, {"text": "M. S. Suman", "label": "OTHER_PERSON", "start_char": 12317, "end_char": 12328, "source": "ner", "metadata": {"in_sentence": "It has admittedly been printed by M. S. Suman.", "canonical_name": "M. S. Suman"}}, {"text": "M. S. Snman", "label": "OTHER_PERSON", "start_char": 12378, "end_char": 12389, "source": "ner", "metadata": {"in_sentence": "This M. S. Snman was polling agent of the respondent.", "canonical_name": "M. S. Suman"}}, {"text": "Chhabi Printing Press", "label": "ORG", "start_char": 12427, "end_char": 12448, "source": "ner", "metadata": {"in_sentence": "Chhabi Printing Press was next to the residence of the respondent."}}, {"text": "Suman", "label": "PETITIONER", "start_char": 12612, "end_char": 12617, "source": "ner", "metadata": {"in_sentence": "P.W.66, the son of the owner of the printing press gave evidence that the manuscript for the pamphlet '''as given to Suman for correction a'!1d the respondent himse1f made the correction.", "canonical_name": "Suman"}}, {"text": "Kumar Rai", "label": "OTHER_PERSON", "start_char": 12906, "end_char": 12915, "source": "ner", "metadata": {"in_sentence": "He also gave evidence that the manuscript was given to him by the respondent who was accompanied by Suman\n\nand one Vi~::>d Kumar Rai."}}, {"text": "Chhabi Printi'ng Press", "label": "ORG", "start_char": 13059, "end_char": 13081, "source": "ner", "metadata": {"in_sentence": "Admittedly also the respondent had phced other orders with Chhabi Printi'ng Press."}}, {"text": "Vijay Kumar Agarwal", "label": "WITNESS", "start_char": 13443, "end_char": 13462, "source": "ner", "metadata": {"in_sentence": "P. W .1 gave evide'11ce that Suman worked for the respondent in the election and he and Vijay Kumar Agarwal, who is responsible for the printing of Ex."}}, {"text": "Vi jay. Kumar Malaiya", "label": "WITNESS", "start_char": 13589, "end_char": 13610, "source": "ner", "metadata": {"in_sentence": "Respondent's witness, Vi jay."}}, {"text": "Vijay Kumar Agarwal", "label": "LAWYER", "start_char": 14447, "end_char": 14466, "source": "ner", "metadata": {"in_sentence": "1t was got printed by one Vijay Kumar Agarwal, ~- mere boy of 14 or 15 years.", "canonical_name": "Vijay Kumar Agarwal"}}, {"text": "Smltosh Bharti", "label": "OTHER_PERSON", "start_char": 15601, "end_char": 15615, "source": "ner", "metadata": {"in_sentence": "A reading of the pamphlet clearly shows that it could not be his h•andiwork, that the brain behind it is some body else's, whether it is Smltosh Bharti's to whom he took it or nor."}}, {"text": "Dm Prakash Rai", "label": "LAWYER", "start_char": 16078, "end_char": 16092, "source": "ner", "metadata": {"in_sentence": "Exhibit P .5 was printed by one Dm Prakash Rai.", "canonical_name": "Om Prakash R•ai"}}, {"text": "18-2-72", "label": "DATE", "start_char": 16142, "end_char": 16149, "source": "ner", "metadata": {"in_sentence": "It was printed at the Chhabi Printing Press on 18-2-72."}}, {"text": "Om Prakash Rai", "label": "LAWYER", "start_char": 16156, "end_char": 16170, "source": "ner", "metadata": {"in_sentence": "This Om Prakash Rai was a wry prominent worker of the respondc,, t.\n\nThe respondent did not even dare to put Om Prakash Rai on the witness stand to deny tbe fact that he printed Ex.", "canonical_name": "Om Prakash R•ai"}}, {"text": "P. NARAYAN V. A. K. SRIVASTAVA", "label": "JUDGE", "start_char": 16583, "end_char": 16613, "source": "ner", "metadata": {"in_sentence": "In the circumst:.inces we do not think that the learned judge was corect in rejecting\n\nP. NARAYAN V. A. K. SRIVASTAVA (A/agiriswami, J.) 55 7\n\nthe evidence of P.Ws!"}}, {"text": "Ajit Modi", "label": "LAWYER", "start_char": 17269, "end_char": 17278, "source": "ner", "metadata": {"in_sentence": "The declaration in respect of this document was given by one Ajit Modi who also is an active worker of the respondent.", "canonical_name": "Ajit Modi"}}, {"text": "Kailash Printing Press", "label": "ORG", "start_char": 17539, "end_char": 17561, "source": "ner", "metadata": {"in_sentence": "It was printed in the Kailash Printing Press and the son of the proprietor was ex•amined as P.W.64."}}, {"text": "Ramesh Clrand Jain", "label": "WITNESS", "start_char": 17891, "end_char": 17909, "source": "ner", "metadata": {"in_sentence": "The printing of this p phlet was admitted by R.W.2, Ramesh Clrand Jain, an advocate, o got it printed along: with Atul Kumar Shrivastava, a cousin of ; the respondent."}}, {"text": "Atul Kumar Shrivastava", "label": "LAWYER", "start_char": 17953, "end_char": 17975, "source": "ner", "metadata": {"in_sentence": "The printing of this p phlet was admitted by R.W.2, Ramesh Clrand Jain, an advocate, o got it printed along: with Atul Kumar Shrivastava, a cousin of ; the respondent.", "canonical_name": "Atul Kumar Shrivastava"}}, {"text": "P. C. Sethi", "label": "OTHER_PERSON", "start_char": 18096, "end_char": 18107, "source": "ner", "metadata": {"in_sentence": "printed in order to prent it to the Chief Minister, Mr. P. C. Sethi when he was ex.pected)o visit Damoh on 28-2-1972 and as he did not do so the pamphlets were destroyed: It is an impossible story and we refuse to believe it."}}, {"text": "Damoh", "label": "GPE", "start_char": 18138, "end_char": 18143, "source": "ner", "metadata": {"in_sentence": "printed in order to prent it to the Chief Minister, Mr. P. C. Sethi when he was ex.pected)o visit Damoh on 28-2-1972 and as he did not do so the pamphlets were destroyed: It is an impossible story and we refuse to believe it."}}, {"text": "28-2-1972", "label": "DATE", "start_char": 18147, "end_char": 18156, "source": "ner", "metadata": {"in_sentence": "printed in order to prent it to the Chief Minister, Mr. P. C. Sethi when he was ex.pected)o visit Damoh on 28-2-1972 and as he did not do so the pamphlets were destroyed: It is an impossible story and we refuse to believe it."}}, {"text": "Atul Kumar Shrivastaya", "label": "LAWYER", "start_char": 18471, "end_char": 18493, "source": "ner", "metadata": {"in_sentence": "Both Atul Kumar Shrivastaya and Rames11 Chand Jain are very strong partisans and workers for the respondent and here again we are satisfied that they should have been printed with the consent of the respondent.", "canonical_name": "Atul Kumar Shrivastava"}}, {"text": "Rames11 Chand Jain", "label": "OTHER_PERSON", "start_char": 18498, "end_char": 18516, "source": "ner", "metadata": {"in_sentence": "Both Atul Kumar Shrivastaya and Rames11 Chand Jain are very strong partisans and workers for the respondent and here again we are satisfied that they should have been printed with the consent of the respondent.", "canonical_name": "Rames11 Chand Jain"}}, {"text": "Bhartiya Jan Sangh", "label": "ORG", "start_char": 19932, "end_char": 19950, "source": "ner", "metadata": {"in_sentence": "P.W.l is a member of the Bhartiya Jan Sangh."}}, {"text": "Mundal Jan Sangh of Damoh", "label": "ORG", "start_char": 19985, "end_char": 20010, "source": "ner", "metadata": {"in_sentence": "He is the Vice- President of the Mundal Jan Sangh of Damoh."}}, {"text": "Bhartiya Jan Sangh Bhartiya Kranti Dal", "label": "ORG", "start_char": 20050, "end_char": 20088, "source": "ner", "metadata": {"in_sentence": "The respond(mt had the support of the Bhartiya Jan Sangh Bhartiya Kranti Dal and."}}, {"text": "Om Prakash Rai", "label": "LAWYER", "start_char": 20132, "end_char": 20146, "source": "ner", "metadata": {"in_sentence": "He had gone along with Om Prakash Rai for canvassing for the respondent.", "canonical_name": "Om Prakash R•ai"}}, {"text": "Vijay Kumar Agarwal", "label": "LAWYER", "start_char": 20183, "end_char": 20202, "source": "ner", "metadata": {"in_sentence": "Vijay Kumar Agarwal •and Suman also accompained him.", "canonical_name": "Vijay Kumar Agarwal"}}, {"text": "Raghubar Modi", "label": "WITNESS", "start_char": 20263, "end_char": 20276, "source": "ner", "metadata": {"in_sentence": "According to this witness Raghubar Modi, father of Ajit Modi, who printed Ex."}}, {"text": "Umanath Agarwal", "label": "OTHER_PERSON", "start_char": 20319, "end_char": 20334, "source": "ner", "metadata": {"in_sentence": "P-6, Umanath Agarwal father of Vijay Kumar Agarwal, and Vinod R•ai were workers of the respondent."}}, {"text": "Vinod R•ai", "label": "OTHER_PERSON", "start_char": 20370, "end_char": 20380, "source": "ner", "metadata": {"in_sentence": "P-6, Umanath Agarwal father of Vijay Kumar Agarwal, and Vinod R•ai were workers of the respondent."}}, {"text": "Om Prakash Rai", "label": "PETITIONER", "start_char": 20414, "end_char": 20428, "source": "ner", "metadata": {"in_sentence": "Om Prakash Rai was an active canvasser in the election campaigll of the respondent.", "canonical_name": "Om Prakash R•ai"}}, {"text": "Prabhud•ayal Mukhariya", "label": "OTHER_PERSON", "start_char": 20561, "end_char": 20583, "source": "ner", "metadata": {"in_sentence": "The only criticism against him was that he is a tenant of Shri Prabhud•ayal Mukhariya, a good Congress worker."}}, {"text": "Jan Sangh", "label": "ORG", "start_char": 20653, "end_char": 20662, "source": "ner", "metadata": {"in_sentence": "Om Prakash Rai is a'J1 active member of the Jan Sangh."}}, {"text": "Danicih", "label": "GPE", "start_char": 21032, "end_char": 21039, "source": "ner", "metadata": {"in_sentence": "He was also the President of the Hindu Maasabha at Danicih:and a Secretary of the Provincial Hindu Mahasabha."}}, {"text": "Vijay Kumar Malaiya", "label": "LAWYER", "start_char": 21161, "end_char": 21180, "source": "ner", "metadata": {"in_sentence": "He speaks to having attended the meeting dated 4th March, 1972 and of Vijay Kumar Malaiya, Om Prakash Rai, and Raghubarprasad Modi father of Ajit Modi, being present on the dais and to the respondent proposing Vijay Kumar Malaiya to the Chair.", "canonical_name": "Vijay Kumar Agarwal"}}, {"text": "Raghubarprasad Modi", "label": "LAWYER", "start_char": 21202, "end_char": 21221, "source": "ner", "metadata": {"in_sentence": "He speaks to having attended the meeting dated 4th March, 1972 and of Vijay Kumar Malaiya, Om Prakash Rai, and Raghubarprasad Modi father of Ajit Modi, being present on the dais and to the respondent proposing Vijay Kumar Malaiya to the Chair.", "canonical_name": "Raghubar. Prasad Modi"}}, {"text": "Om Prakash Rai", "label": "WITNESS", "start_char": 21335, "end_char": 21349, "source": "ner", "metadata": {"in_sentence": "Om Prakash Rai also spoke at that: meeting."}}, {"text": "Raghubar Prasad Modi", "label": "LAWYER", "start_char": 22122, "end_char": 22142, "source": "ner", "metadata": {"in_sentence": "He speaks to Raghubar Prasad Modi speaking at that meeting as also to Om Prakash Rai's speech.", "canonical_name": "Raghubar. Prasad Modi"}}, {"text": "Raghubar. Prasad Modi", "label": "LAWYER", "start_char": 22392, "end_char": 22413, "source": "ner", "metadata": {"in_sentence": "He speaks to his having attended the n1eeting on 4-3-1972 and refers to the speech made by Raghubar.", "canonical_name": "Raghubar. Prasad Modi"}}, {"text": "Vijay umar Malaiya", "label": "LAWYER", "start_char": 22950, "end_char": 22968, "source": "ner", "metadata": {"in_sentence": "He speaks to the rJeeting held on 4th March 1972 to support the respondent addressed by Om Prakash Rai, Vijay umar Malaiya and also to the respondent giving him pamphlets Exs.", "canonical_name": "Vijay Kumar Agarwal"}}, {"text": "Om Prakash Ra~", "label": "WITNESS", "start_char": 23490, "end_char": 23504, "source": "ner", "metadata": {"in_sentence": "He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin."}}, {"text": "Raghubar Prasad Mod1", "label": "LAWYER", "start_char": 23537, "end_char": 23557, "source": "ner", "metadata": {"in_sentence": "He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin.", "canonical_name": "Raghubar. Prasad Modi"}}, {"text": "Ajit Modi", "label": "LAWYER", "start_char": 23571, "end_char": 23580, "source": "ner", "metadata": {"in_sentence": "He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin.", "canonical_name": "Ajit Modi"}}, {"text": "Kamal Modi", "label": "OTHER_PERSON", "start_char": 23585, "end_char": 23595, "source": "ner", "metadata": {"in_sentence": "He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin."}}, {"text": "Uma Agarwal", "label": "OTHER_PERSON", "start_char": 23597, "end_char": 23608, "source": "ner", "metadata": {"in_sentence": "He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin."}}, {"text": "V. K.", "label": "OTHER_PERSON", "start_char": 23621, "end_char": 23626, "source": "ner", "metadata": {"in_sentence": "He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin."}}, {"text": "Atul Kumar Shrivastav", "label": "LAWYER", "start_char": 23646, "end_char": 23667, "source": "ner", "metadata": {"in_sentence": "He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin.", "canonical_name": "Atul Kumar Shrivastava"}}, {"text": "Jan Sangh party", "label": "ORG", "start_char": 23717, "end_char": 23732, "source": "ner", "metadata": {"in_sentence": "P.W.24 is a member of the Jan Sangh party who worked for the respondent in l1is election."}}, {"text": "Vinod Kumar Rai", "label": "OTHER_PERSON", "start_char": 24080, "end_char": 24095, "source": "ner", "metadata": {"in_sentence": "He speaks to respondent accompanied by Vinod Kumar Rai having come to his Mahalia and his being given leaflets for distribution."}}, {"text": "Bhuri", "label": "GPE", "start_char": 26180, "end_char": 26185, "source": "ner", "metadata": {"in_sentence": ">arr.oh having been present at village Bhuri some time c•arlier and in Bilai smile time later."}}, {"text": "Bilai", "label": "GPE", "start_char": 26212, "end_char": 26217, "source": "ner", "metadata": {"in_sentence": ">arr.oh having been present at village Bhuri some time c•arlier and in Bilai smile time later."}}, {"text": "Raghvendra Singh Hazari", "label": "WITNESS", "start_char": 27178, "end_char": 27201, "source": "ner", "metadata": {"in_sentence": "We should mention, however: th•at \\ve do not place any reliance upon the evidence of Raghvendra Singh Hazari, R.W.S about the distribution of the pamphlets."}}, {"text": "B.K.D.", "label": "ORG", "start_char": 27827, "end_char": 27833, "source": "ner", "metadata": {"in_sentence": "Vijay Kumar Malaiya says that Raghubarprasad Modi of the B.K.D. as well as Ramesh Chand Jain used to attend sometime the meetings of the Samyukta Morcha."}}, {"text": "Ramesh Chand Jain", "label": "OTHER_PERSON", "start_char": 27845, "end_char": 27862, "source": "ner", "metadata": {"in_sentence": "Vijay Kumar Malaiya says that Raghubarprasad Modi of the B.K.D. as well as Ramesh Chand Jain used to attend sometime the meetings of the Samyukta Morcha.", "canonical_name": "Rames11 Chand Jain"}}, {"text": "Samyukta Morcha", "label": "OTHER_PERSON", "start_char": 27907, "end_char": 27922, "source": "ner", "metadata": {"in_sentence": "Vijay Kumar Malaiya says that Raghubarprasad Modi of the B.K.D. as well as Ramesh Chand Jain used to attend sometime the meetings of the Samyukta Morcha."}}, {"text": "Jawah'dl Printing Press", "label": "ORG", "start_char": 27969, "end_char": 27992, "source": "ner", "metadata": {"in_sentence": "Raghubarprasad Modi is the proprietor of the Jawah'dl Printing Press."}}, {"text": "Vijay Kumar Agarw", "label": "LAWYER", "start_char": 28017, "end_char": 28034, "source": "ner", "metadata": {"in_sentence": "He gives the names of Vijay Kumar Agarw<ll.", "canonical_name": "Vijay Kumar Agarwal"}}, {"text": "Rammanohar Shrivastava", "label": "OTHER_PERSON", "start_char": 28094, "end_char": 28116, "source": "ner", "metadata": {"in_sentence": "Om Prakash Rai, Vinod Kumar Rai, Ramesh Chand Jain and Rammanohar Shrivastava the electio111 •agent of the respondem as respondent's supporters.", "canonical_name": "Ram Manoharlal Shrivastava"}}, {"text": "Ramesh Chand Jain", "label": "WITNESS", "start_char": 28564, "end_char": 28581, "source": "ner", "metadata": {"in_sentence": "He speaks of Om Prakash Rai working for the respondei1t.\n\nR.W.2, Ramesh Chand Jain, gives the name of Raghubarprasad Modi, Ajit Modi's father as one of the members of the Samyukt'a Morcha."}}, {"text": "Suman", "label": "PETITIONER", "start_char": 28799, "end_char": 28804, "source": "ner", "metadata": {"in_sentence": "In the far-e of this evidence it is difficult to accept the respondent'~: evidence that Atul Kumar Shrivastav, Suman, Om Prakash Rai and Ajit Modi were not his agents; so also the assertion that Om Prakash Rai had never accompained him in his election campaign.", "canonical_name": "Suman"}}, {"text": "Ram Manoharlal Shrivastava", "label": "OTHER_PERSON", "start_char": 29272, "end_char": 29298, "source": "ner", "metadata": {"in_sentence": "P.Sl, which bears the name of his own election agent, Ram Manoharlal Shrivastava,\n\nrelates to his election expenses and he does not know who is that person.", "canonical_name": "Ram Manoharlal Shrivastava"}}, {"text": "R. K. Shrivastav•a", "label": "OTHER_PERSON", "start_char": 29749, "end_char": 29767, "source": "ner", "metadata": {"in_sentence": "He even pretended that he did not know that R. K. Shrivastav•a's sigmture is found it Ex.", "canonical_name": "R. K. Shrivastav•a"}}, {"text": "Rammanoharlal Shrivastava", "label": "OTHER_PERSON", "start_char": 29863, "end_char": 29888, "source": "ner", "metadata": {"in_sentence": "P-53 and could not say whether he was the\n\nson of his election agent Rammanoharlal Shrivastava or not.", "canonical_name": "Ram Manoharlal Shrivastava"}}, {"text": "R. K.\n\nShrivastava", "label": "OTHER_PERSON", "start_char": 29898, "end_char": 29916, "source": "ner", "metadata": {"in_sentence": "R. K.\n\nShrivastava as well as Raghubarpras•ad Modi's son Suresh Chand were\n\nhis polling agents.", "canonical_name": "R. K. Shrivastav•a"}}, {"text": "Raghubarpras•ad Modi", "label": "LAWYER", "start_char": 29928, "end_char": 29948, "source": "ner", "metadata": {"in_sentence": "R. K.\n\nShrivastava as well as Raghubarpras•ad Modi's son Suresh Chand were\n\nhis polling agents.", "canonical_name": "Raghubar. Prasad Modi"}}, {"text": "Suresh Chand", "label": "OTHER_PERSON", "start_char": 29955, "end_char": 29967, "source": "ner", "metadata": {"in_sentence": "R. K.\n\nShrivastava as well as Raghubarpras•ad Modi's son Suresh Chand were\n\nhis polling agents."}}, {"text": "Om Prakash R•ai", "label": "LAWYER", "start_char": 30047, "end_char": 30062, "source": "ner", "metadata": {"in_sentence": "P-68 bears the sigilaturc of Om Prakash R•ai, which is a declaration for Ex.", "canonical_name": "Om Prakash R•ai"}}, {"text": "Vinodkuniar Rai", "label": "WITNESS", "start_char": 30329, "end_char": 30344, "source": "ner", "metadata": {"in_sentence": "P-70, which was printed by him, beoars his signature and one of the identifying witness is Vinodkuniar Rai."}}, {"text": "Vi", "label": "PETITIONER", "start_char": 31158, "end_char": 31160, "source": "ner", "metadata": {"in_sentence": "Vi, iay Kumar Agarwal and Suman are mere boys of 14 and 15."}}, {"text": "Kailash Chand Nakra", "label": "OTHER_PERSON", "start_char": 32914, "end_char": 32933, "source": "ner", "metadata": {"in_sentence": "66 and 67 about the part played by the respondent with regard to the pamphlets -.printc.~..i in the Chhabi Printing Press and of Kailash Chand Nakra with\n\nTegard to the pamphlets printed in the Kailash Press are correct or 110t~\n\nwe are convinced beyond reasonable doubt that the respondent is the\n\n'guiding brain and hand behind all of them."}}, {"text": "Kailash Press", "label": "ORG", "start_char": 32979, "end_char": 32992, "source": "ner", "metadata": {"in_sentence": "66 and 67 about the part played by the respondent with regard to the pamphlets -.printc.~..i in the Chhabi Printing Press and of Kailash Chand Nakra with\n\nTegard to the pamphlets printed in the Kailash Press are correct or 110t~\n\nwe are convinced beyond reasonable doubt that the respondent is the\n\n'guiding brain and hand behind all of them."}}, {"text": "4.3.1972", "label": "DATE", "start_char": 33542, "end_char": 33550, "source": "ner", "metadata": {"in_sentence": "Then there is the question of two meetings dated 4.3.1972 3nd 8.3.1972."}}, {"text": "8.3.1972", "label": "DATE", "start_char": 33555, "end_char": 33563, "source": "ner", "metadata": {"in_sentence": "Then there is the question of two meetings dated 4.3.1972 3nd 8.3.1972."}}, {"text": "section 123", "label": "PROVISION", "start_char": 33753, "end_char": 33764, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_563_573_EN", "year": 1975, "text": "A.TIC INDUSTRIES LTD. v.\n\nH. H. DA VE, ASSTT. COLLECTOR OF CENTRAL EXCfSE AND\n\nORS.\n\nFebruary 14, 1975\n\nll [P. N. BHAGWATI, A. c. GUPTA AND N. L. UNTWALIA, JJ.]\n\nCentral Excise and Salt Act 1944-s. 3 ( 1) and 4(a)-Ad va/orem assessment -How made.\n\nThe appellant, which was. a manufacturer of dye-stuffs, sold its product to two wholesale buyers at. a uniform selling price described as \"the ba'Sic selling price\" less trade dis:ount of 18%. The wholesalers in turn sold the product to large consumers such as textile mills and distributors.\n\nOne wholesaler sold the dye-stuff to the distributors \"t a higher price but allowd 10% discount while the other sold at a lower price and allowed 2-l-% discount.\n\nThe price charged by both however was so adjusted that the net selling price charged to the distributors was almost the same.\n\nThe excise duty chargeable under s. 3 (!) of the Central Excise and Salt A:t, 1944 was ad va/orem.\n\nSection 4 providej .as to how the value of an article chargeable with duty at a rate depending on its value shall be determined for the purpose of assessment of excise duty.\n\nBefor.e the excise authorities the appellants claimed that, for the purpose of assessing the excise duty the value of the dye--stuffs should be taken to be the price at which the a:ppellants sold the same to the two wholesale buyers less trade discount allowed to these wholesale buyers. The Superintendent of Central Excise nejected this contention and took, for the purpose of assessment, the price at which the wholesalers sold the dye-stuffs to the distributors.\n\nHe did not, however, allow any deduction in respect of the discount given by the whobalers to the distributors since it was not uniform.\n\nOn appeal the Assistant Collector of Central Excise confirmed the assessing authority's order. \\Jn further ;:; ppeal, the Collector of Central Excise held that in determinin_g the\n\nassssable value, the lower trade discount of 2t% allowed by one of the wholesalers to the distribu.tors only should be ducted. The appellant's revision application was rejected bv the Central Government on the ground that since th 0 dye-stuffs manufactured by the apjiellant were not avail;:; ble to an indpen dent buyer in open market conditions at prke at which these were sold by them to the wholesalers these prices could not be adopted as the basis -of ad va/orem assessment under s. 4 of the Act.\n\nIt was observed that these dye stuffs were ava:ilab!e to any independent buyer in open market conditions at the distributors' prices, that is, at the pri,:es charged by the wholesalers to the distributors and, therefore, these prices should form the basis of assessment after allowing the discount.\n\n---Diss_gtisfied with the decision of the Central Government the appellant filed a petitioil\\mder_iirt. 226 of the Constitution. The High Court held that where the entire producfioo--was sold by a mMJ.ufacturer to one or more favoured distributors there was no whcile\"sale market in the senSe of open market at the site oi the factory where an independent buyer could purchase the gooqs in wholesale and the assessable value must therefore be taken to be the price at which favoured distributors sell the goods in wholesale ;:; nd if not in wholesale.\n\nthen, in retail.\n\nThe High Conrt accordingly upheld the view of the Central Government.\n\nAllowing the appeal,\n\nHELD: (I )(a) The assessable value af the dye-stuffs manufaciured by the appellants must be taken to be the price at which they v•ere sold by the appellants to the two wholesale dealers less 18% trade discount and not the price charged by the wholesale delers to the <iistributors.\n\n[573F-G]\n\n(b) Where a manufaclurer sells the goods manufactured by him in wholesale to a \\\\holesak der.ler at arm's kngth and in the usual course of busins;, the wholesale :ash price charged by him to the wholesale daler less trad~_ discoml would represent the value uf the goods for the pt•.rpose of assessment oE excise.\n\nThat would be the wholesale cash price for which the goods are sold at the faqory gate within the meaning of s. 4(a). The pric, e received )JY the whobaL~ dealer who purchases the goods from the .manufacurer and m his t1.'.111 sells the ·;-ame in wholesle to other dealers would be irrelevant to the deter:~1111atio11 of the value of the goods and the goods would not be chargeable to exrne on tlm ba, ic.\n\n[573E-F]\n\nI c) The value of the goods for the purpose of excise must take into ac.:ount only the manufacturing co; t. and the manufacturn_g profit and it mus-: not . b~ loaded with post-manufacturing cost or profit arising from post-manufactunng operation.\n\n[572FJ\n\n(d) Once the good'l have entered the stream of trade and are on their onward journey to the consumer, whether along a . s_hort or a lon1' c_ourse depending on the nature of the goods and the cond1tmns of trade, 'excise is not concerned with what happens subsequently to the goods.\n\n[573B-C]\n\nA. K. Roy v. Valtas Ltd., [1973] 2 S.C._R. 1088, followed.\n\nC1v1L APPELLATE JURISDICTION : Civil Appeal No. 1868 of 1970.\n\nFrom the Judgment and Order dated the 30th March, 11970 of the Gujarat High Court in S.C.A. No. 1219 of 1966.\n\nN. A. P'alkhivala, Sol. J, Sorabji, Ashok Desai, D. B. Engineer, K. K. Master, and Ravinder Narain, for the appellant.\n\nG. L. Sanghi and Girish Chandra, for the Respondents.\n\nThe Judgme:nt of the Court was delivered by\n\nBttAGW ATI, .J .-This appeal, on certificate of fitness obtainl!d under Article 133 (1) (a) of the Constitution, is directed against a judgment of the High Court of Gujarat dismissing Special Civil Application No. 1279 of 1966 preferred by the appellantf challenging the assessments to excise duty of certain dye-stuffs manufactured by them. The facts giving rise to the appeal are few and may Ire briefly. stated as follows.\n\nThe appellants carry on business of manufacturing dye-stuffs in a factory situate in a small township called Atul in Bulsar District in th¥ State of Gujarat. The dye-stuffs manufactured by the appellants were, throughout the period relevant to this appeal, sold by them in whole.sale units to two wholesale buyers, numely, IC! (Indiai LtJ.\n\n(heremafter referred to as ICI) and Atul Products Ltd. (hereinafter\n\nreerred to as Atul) under respective agreements entered into by them\n\nwith ICI and Atul.\n\nSeventy per cent of the dye-stuffs manufactured by the appel_Iants were sold to ICJ, while the remaining 30% to Atul. The pnce charged by the appellants to ICI and Atul was a uniform price described as athe oasic se::in.;, pri:e\" ]-:-: tr\"se diw:mnt of 18%. ICI and Atul, in their turn, resold the dve-; tuffs purchased by them from the ppel!_ants to two categorieo or buyers. One was the category of textile mills and othe; r large consumers, while the\n\nA TIC INDUSTRIES v. ASST. COLLECTOR (Bhagwati, J.) 5 6 5\n\nother was the category of distributors. The sales by ICI and Atul to the textile mills and other large consumers were at the basic selling price without any discount, but so far as the distributors were concerned, the sales to them by ICI and Atul were at a higher price, though with trade discount.\n\nICI charged a higher price but allowed 10% trade discount, while Atul charged a slightly lower price and allowed two and a half per cent trade discount. The prices were, however, so adjusted that the net selling prices charged by ICI and Atul to the distributors were almost the same. The distributors, in their turn, resold the dye-stuffs .purchased by them from ICI and Atul to the small consu1mers at a slightly high\".r price referred to as \"small\n\nconsumers price\".\n\nNo discount was given by the distributors to the small consumers.\n\nThe position which, therefore, obtained during the relevant perid was that the appellants sold the dye stuffs manufactured by thm m wholesale units, 70% to ICI and 30% to Atul, at the basic selling price, bss trade discount of 18%: ICI and Atul in their turn resold a part of the dye stuffs in retail unjts to the textile mills and large consumers at the basic selling price and the balance in wholesale units to the distributors at higher selling prices with 10% trade discount in case of ICI and 2~% trade discount in case of Atul, the net selling prices charged by both of them, however, being the same; and the distributors, in their turn, re-sold the dye stuffs to small consumers in retail units at the small consumers price. It may be pointed ciut that though Atul initially charged a lower selling price and gave a trade discount of 2!%, it fell inO!ine with ICI and adopted the same selling price as JCI with trade discount of 10% from and after 1st May, 1963.\n\nThere was no excise duty on dye stuffs prior to 1st March, 1961, but with effect from that date excise duty was imposed for the first time on dye-stuffs, including those manufactured by the appellants.\n\nThe excise duty chargeable under the relevant entry in the first Schedule read with section 3, sub-section (1) of the Central Excise and Salt Act, 1944 was ad valorem, and it was, therefore, necessary to determine the value of the dye-stuffs manufactured by the appellants for the purpose of assessing the excise duty payable on them.\n\nSection 4 of the Act provided how the value of an article chargeable with duty at a rate depending .om its value shall be determined for the purpose of assessment of excise duty. It said :\n\n\"Determinhtion of value for the purpose of duty.\n\nWhere under this Act, any article is chargeable with duty at a rate dependent on the value of the article, such value be deemed to be-\n\n( a) the whole sale cash price for which an article of the like kind and quality is sold or is capable of being sold at the time of the removal of the article chargeable with duty from the factory or any other premises of manufacture or production, or if a wholesa!e\n\n(b)\n\nmarket does oot exist for such article at such place, at the nearest place where such market exists, or\n\nwhere such price is not ascertainable, the price at which an article of the like kind and quality sold or is capable of being sold by the manufacturer or producer, or his agent, at the time of the removal of of the article chargeable with duty from dUCh factory or other premises for delivery at the place of manufacture or production or if such article is not sold or is not capable of being sold at such place, at any\n\nother place nearest thereto.\n\nEX'{J'lan.ation.-In determining the price of any artick under this sec1fon no abatement or deduction shall be allowed except in respect of trade discount and amount of duty payable at the time of the removal of the article chargeable with duty from the factory or other premises aforesad.\"\n\nThe question arose as to how ithe value of the dye stuffs manufactured by th~ appellants should be determined on a proper app!iq.tion of the rule laid down iri section 4. The appellants contended before the Excise Au.thorities that for the purpose of assessing the excise duty, the value of the dye stuffs manufactured by the appellants should .be taken to be the price at which the appellants sold the same in wholesale units to ICI and Atul, less a uniform trade discount of 18% which the appellants at the relevant time gave to these two wholesale buyers. This contention was niot accepted by the Superintendent of Central Excise who was the original assessing authority. He took the view that the value of the dye stuffs for the purpose of assessment\n\nof excise duty should be taken to be the price at which ICI and Atul sold the dye stuffs to the distributors and no deduction should be allowed in respect of the discount given by them to the distributors since it was n'ot uniform, being 10% in case of ICI and 2!% in case of Atul. The appellants appealed against the assessment to the Assistant Collector of Central Excise, but the appeal was unsuccessful and the a£3essment was confirmed. That led to the filling of a further appeal to the Collector of Central Excise. This appeal resulted in some gain, little though it was, as the Collector of Central Excise held that in determining fueassessable value~ •trade discount of 2!% which was given by Atul to the distributors should be allowed to be deducted from the price charged by ICI to the distributors. This was, however, plainly illogical. If the price charged by JCI was taken as a basis, trade discount of 10% should have been allowed as that was the discount given by ICI to the distributors. Trade discount of 2!%\n\ngiven by Attil on the lower price charged by it to the distributors could not be deducted from the price charged by ICI to the distrrbutors which was fixed at a higher fornre because of the lanrer trade discount 0f l 0% given bv it to the distributors. The assessable value determined by the Collector of Central Fxcise was a strange hvbrid.\n\nThe anflPllants oref Prr<'<l a revi<inn aooli<'ation to t11P Central Government against the order of the Collector of Central Excise. The Central\n\nGovernment in revision rejected the main contention of the appellants that tne value of tile dye stuffs shoukJ be amved at the pnce at wmch the same were &01d by tbe appellant to ICI and Atul less 18% trade discount allowed to them. The reason for rejecting this contention was Lhat since dye stuffs rsanufactured by the appellants. \"!'ere not \"available to an independr:'11 i:>uyer in open market . C<?Dditlons at prices at which these are sc:!d by them to the .Sole D, iatribu.ors1 M/s !CI Ltd. and M/s Atul ProdJK;~S Ltd., these pr.tees cannot be aoopte~\n\nas the basis of ad-valorrm assessUlent\" under section 4 of tte Act.\n\nThe Central Government. however, observed that these dye stuffs were \"available to any independent buyer in open market conditions\n\nat the sole distributors' prices''., that is, at the price charged by ICT and Atul to the distributors and, therefore, these prices should form the basis of assessment after allowing discount of 10% on the prices charged by !CI from the beginning arid 21% on the prices har&i:d\n\nby Atul upto 30th April, 1963 and 10% thereafter and on this basIS directed refund of the excise duty collected by the Excise Autho- rities. The appellants were obviously not satisfied with this rather trivial and insignificant success and since their main plea was negatived by the Central Government, they filed a petition in the High Court of Gujarnt under Art. 226 of the Constitution challenging the validity of the various orders made by the Excise authorities culminating in the order of the Central Government and seeking a writ directing the Union of India \"to refund excess duty amounting to Rs. 1,26,229.80 illegally recovered from the petitioners and to forbear from recovering duty from the petitioners in respect of the said products otherwise than on the basis of the prices charged by the petitioners to the said wholesale buyers viz. ICI and Atul.\" The Division Bench which heard the petition took the view, following certain decisions of the Calcutta, Mvsore, Andhra Pradesh and Bombay High Courts, that where th~\n\nentire production is sold by a manufacturer to one or more favoured d:stributors, there is no wholesale market in the sense of open market at the site of the factory where an independent buyer can purchase the goods in wholesale and in such a case the price at which the goods are sold by the manufacturer to the favoured distributors cannot be taken to be the assessable value of the goods but the assessable value must be taken to be the price at which the favoured distributors, in their turn, sell the goods in wholesale and if not in wholesale, then in retail. The Division Bench accordingly held that the price charged by t:12 :ippellants to ICI . and Atul less 18 % trnde discount could not be ado\"lted for determining the assessable value of the dye stuffs since ICI ~1d Atul were favoured distributors and not independent buyers and the Central Government was right in taking the price charged by ICI less 10% trade discount and the price charged by Atul less 2!% trade discount as the assessable value because_ \"that was the wholesale cash price at which the indeoendeo t buyers could get these goods in the nearest wholesale market at the relevant time.'' The aooellants being ae:!!rieved bv the decision of the High Court preferred the present appeal after obtaining certificate of fitness from the High Court. 1 5-470SupCI/75\n\nJt would be seen f; om the judgment of the High Court that .the only ground on which the High Court negatived the concntion of the appellants tlut the price charged by the appellants to lCl and Atul less 18 % trade cLscount shomd be taken as the assessable value W<1s that lCl and A'ul were favoured cl.istnbutors and apart from them, no independent buy::r could purchase the dye stuffs in wholesae marke< at or near the place or manufacture so as to attract the apphcability of the first part of section 4(a). This. ground of course, at one time, looked highly plausible, supported as 1t a.s by decs1ons of several High Courts. But now, after the recent dec1S1on o! this Court in A. K. Roy v. VoUas Ltd.(') it stands completely decimated. The facts of that case are a little interesting and requires to be not.iced Ill order to understand the true ratio of the decision.\n\nThe respondent in that case carried on inter alia. busim:ss of manufacturing air-conditioners, water-coolers and their component parts. It effected direct sales to consumers at list prices and the sale~ so effected came to about 90% to 95% of is production during the relevant period. It also sold its articles amounting to 5% to 10% of its production to wholesale dealers from different parts of the country in pursuance of agreements entered into with them. The agreements provided among other things that the dealers should not sell the articles sold to them except in accordance with the list prices fixed by the respondent and the respondent would sell the articles to them at the list prices less 22 % discount. The dealers were also r1quired under the agreements to give service to the units sold in their territory. Excise duty on the basis of ad-valorem value was imposed on air-conditioners, water-coolers and parts of water-coolers from March 1, 1961. The respondent claimed, in accordance with section 4(a), that the list prices after deducting the discount of 22 % allovred to the wholesale dealers should be taken to be 'the wholesale, cash price' for ascertaining the real value of the articles. This claim was resisted by the Excise Authorities and tiJe respondent was therefore constrained to file a writ petition in the High Court of Bombay. The High Court allowed the petition holding that the list prices at which the articles were sold to the wh0lesale dealers,. less 22 % discount allowed to them under the agteements, represented 'the wholesale cash price' and excise duty was accordingly chargeable under section 4( a). The Excise Authorities thereupon preferred an appeal by certificate to this Court.\n\nThe same argument was advanced before this Court on behalf of the Excise Authorities wliich has foud favour wi•h the High Court ia the presi:nt case. The Excise Authorities contended that the agreements with the whole-sale dealers conferred certain extra-commercial advantages upon them, and so, the sales to them were not sales to independent purchasers but to favoured ones, and, therefore, the\n\nrice c~&rge:d would not reoresent the \"wliolesale cash price\" as mentioned m s. 4 (a) of the Act. They anmed that s. 4 (a) viualizE\"s a\n\nwliol~~:ile marlcet at the place of manufacture where a:ticles of like\n\n{l) [197312 S.C.R. 1088.\n\nkind and quaiity are sold or could be sold and that it also postulates a market where any wholesale purchaser can purchase the articles, and, as no articles of a like kind and quality were sold, at or near the place of manufacture, and as the wholesale sales were confined to tn<: favoured buyers, there was no wholesale market at the place of manufacture. It was further argued that \"articles of a. like kind and quaiiy\" is a phrase which suggests goods other than those under assessment and that one must disregard the price fetched by the sale of the goods themselves.\n\nThis argument was squarely negatived by the Court. Mathew, J., speaking on beh.alf of the Court, explained the true scope and meaning of section 4(a) and its applicability in a situation of this kind in. the following words :\n\n\"We do not think that for a wholesale market to exist, it is necessary that there should be a market in the physical sense of the term where articles of a like kind or quality are or could be sold or that the articles should be sold to so-called independent buyers.\n\nEven if it is assumed that the latter part of s. 4(a) proceeds on the assumption that the former part will apply only if there is a wholesale market at the place of manufacture for articles of a like kind and quality, the question is what exactly is the concept of wholesale market in the context. A wholesale market does not always mean that there should be an actual place where articles are sold and bought on a wholesale basis. These words can also mean the potentiality of the articles being sold on a wholesale basis.\n\nSo, even if there was no market in the physical sense of the term at or near the place <'f manufacture where the articles of a like kind and quality are or could be sold, that would not in any way affect the existence of market in the proper sense of the term provided the articles themselves could be sold wholesale to traders, even though the articles\n\nare sold to them on the basis of agreements which confer certain commercial advantages upon them. In other words, the sale to the wholesale dealers did not cease to be wholesale sales merely because the wholesale dealers had entered into agreement with the respondent under which certain commercial benefits were conferred upon them in considera· tion of their undertaking to do service 10 the articles sold, or because of the fact that oo other person could purchase the articles wholesale from the respondent. We also think that the aoolication of clause (a) of ~. 4 of the Act does not depend upon any hypothesis to the effect that at the time and place of sale, any further articles of like kind and quality should have been sold. If there is an actual price for the goods themselves at the time. and olace of sale and if that is a 'wholesale cash price'. the clause is not inannlicable for wa11t of sale of other goods of a like kind and quality.\n\nThe learned Judge then referred to the decision of the Privy Council in Ford Motor Company of llldia Limited v. Secretary of State for India in Council(') and pointed out that :\n\n\"This case is an authority for the proposition that mero existence of the agreements between the respondent and d1e wholesale dealers under which zertain obligations were undertaken by them like service to the articles, would not render Uie price any the less the 'wholesale cash price'. To put it in other words, even if the articles in question were 11old only to wholesale dealers on the basis of agreements and not to independent persons, that would not make the price for the sales anything other .than the 'wholesale csh . price'. The argument that what was relevant to determme the 'wholesale cash price' under cl. (a) of s. 30 of the S1a Customs Act, 1878, was the price of goods of a like kind\n\nanid quality was negatived by the Privy Council by saying that goods under assessment may, under cl. (a) be considered as members of their own class even though at the time and place of importation there are no other members all/d that the price obtained for them may correctly represent the price obtainable for goods of a like kind and quality at the time and place of importation.\" Then, with reference to the decisions of the various High Courts, which had taken a different view, the learned Judge observed : \"We do not think that these decisions, in so far as they hold that th1e price of sales to wholesale dealers would not represent the wholesale cash price for the purpose of s. 4(a) of the Act merely because the mam:afacturers had entered into agreements with them stipulating for commercial advantages, are correct\", and proceeded to add :\n\n\"If a manufacturer were to enter into agreements with dealers for wholesale sales of the articles manufactured on certain terms and conditions, it would not follow from th:\\t alone that the price for those sales would not be the 'wholt:lsale cash price' for the purpose of s. 4 (a) of the Act if the agreements were made at arms length and in the usual course of business.\n\nThere can be no doubt that the 'wholesale cash price has to be ascertained only on the basjs of transactions at arms length. If there is a special or favoured buyer to whom a specially low price is charged because of extm- . commercial considerations, e.g. because he is relative of the manufacturer, the price charged for those sales would not be .the 'wholesale cash pric§ fo~ !vying xcise uder section 4(a) of the Act. A sole dtstnbutor nnght or might not be a favoured buyer according as terms of the airree~ ment with him are fair and reasonable and were arrived a:t\n\non pure~ commercial basis. Once wholesale dealings at arms length are established, the getermination of the who1e-\n\n(t) 65 I.A.Ji.\n\nsale cash price for the purpose of s. 4(a} of the Act may not depend upon the number of such wholesale dealing.\n\nThe fact that the respondent sold 90 to 95 per cent of the articles manufactured to consumers direct would not make the price of the wholesale sales of the rest of the articles any the less the 'wholesale cash price' for the purpose of s. 4( a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the\n\nagreements were entered into at arms length and in the ordinary course of business.\"\n\n\"- it is not necessary for attracting the operations of s. 4(a) that there should be a large number of wholesale sales. The quantum of goods sold by .a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the true position.\"\n\nOn this view, it was held that the respondent was liable to be charged with excise duty on the basis of the price payable by the wholesale d;:alers, after deducting 22% discount, under section 4(a). ·\n\nThis decision provides a complete refutation of the view taken by the High Court illr the present case. In fact, the present case is much stronger than the Volt11is case (supra). In the Voltas' case\n\n(supra) , 90 to 9 5 per cent of the production was sold by the manufacturer in retail and only a small percentage, namely,, 5 to 10 per cent was sold in wholesale and yet the price charged by the manufacturer to the wholesale dealers less trade discount of 22% was taken as 'the wholesale cash price' for assessmeDlt of value under s. 4 (a). Here, on the contrary, no retail sales at all were effected by the appellants and the entire production was sold in wholesale to ICI and Atul under agreements entered into with them. Moreover, it was not in dispute between the parties that the agreements entered into by the appellants with ICI and Atul were made at arms length and in the usual. course of business. It was not the case of the Excise Authorities at any time that specially low prices were charged by the appellantS to ICI and Atul because of extra commercial considerations or that the agreements were anything but fair and reasonable or arrived at on purely commercial basis. The wholesale dealings between the appellants and ICI and Atul were purely commercial dealings at. anns length and the price charged by the appellants for sales in wholesale made to ICI and Atul less trade discount of 18% was, therefore, clearly 'wholesale cash price' within the mcanin11; of s. 4(a) and it did not make any difference that the wholesale dealings. of the appellants were confined exclusively to ICI and Atul and apart from these two, no independ'ent buyers could purchase the tlye stuffs in wholesale from the appellants. ·\n\nThe Excise Authorities. robbed of what they thought was a stron2 argument prior to the decision in Voltas' case (supra), then tried to\n\nfall back on a subsidiary argument in an attempt to save the assessments. They contended that all that s. 4(a) provides is that the value of the article soui:ht to be charged to excise duty shall be deemed to be the wholesale cash price for which the article is sold or is capable of being sold and it does not say which wholesale cash price shall be taken to be the value of the article-that char1cd by the manufacturer to the wholesale dealer or that charged by the wholesale dealer who having purchased the article from the manufacturer sells it in wholesale to another dealer. The latter price, they pointed out,. would equally be the wholesale cash price within the meaning of s. 4 (a) as it would be the price at which the article is sold or in any event capable of being sold in the wholesale market and there is no reason why it should not be taken to be the value of the article for the purpose of assessment under s. 4(a). The contention, therefore, was that the price charged by IC[ and Atul to the dealers less trade discount allowed to them should be taken to be the assessable value of the dye stuffs and not the price charged by the appellants to ICI and Atul less trade discount of 18 % . This contention is without force and must be rejected. It violates two basic principles underlying imposition of excise duty.\n\n In the first place, as pointed out by J1:1athew, J., in Voltt~' case (supra), ''excise is a tax on the product10~ and manufacture of\n\ngods-Section 4 of the. Act therefore provides that te real vah1e should be found after deducting the seUing cost and selhng profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise iH levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from po~ manufacturing operation, namely, selling profit.\" The va:ue of the goods for the purpose of excise mu.st take into account only the manufacturing cost and the manufac1uring profit and it must not be loaded with post-manufacturing cost or profit arising from post-manufacturing operation. The price charged by the manufacturer for sale of the goods in wholesale would,. therefore. represent the real value of the goods for the purpose of assessment of excise duty. If the price charged by the wholesale dealer who purchases the goods from the manufacturer and sells them in wholesale to another dealer were taken as the value of the goods, it would include. not only the manufacturing cost and the manufacturing profit of the manufacturer but also the wholesale dealer's selling cost and selling profit and that would be wholly incompatible with the nature of excise. It may be noted that wholesale market in a par•icular type of goods may be in several tiers and the goods may reach the consumer after a series of wholesale transactions. In fact the more common and less expensive the good~. there would be greater possibility of more than one tier of wholesale transactions. For instance .. in a textile trade, a manufacturer may sell his entire production to a single wholesale dealer and the latter mw in his turn sell the goods purchased by him from the l)lanufacturer to different wholesale dealers at State level, and they may in their turn sell the goods to wholesale\n\ndealers at the district level and from the wholesale dealers at the district level the goods may pass by sale to wholesale dealers at the city level and tnen, u1,1miite1y rrom tne who1esa1e aea1ers at the cty level the goods may reach the consumers. The only relevant price for ,; ssessment of value of the goods for the purpose of excise in such a case would be the wholesale cash price which the manufacturer receives from sale to the first wholesale dealer, that is, when the goods first enter the stream of trade. Once the goods have entered the stream of trade and are on their onward journey to. the consumer, whether along a short or a long course depending on the nature of the goods and the conditions of the trade, excise is not concorned with what harpens subsequently to the goods. It is the first immediate contact between the manufacturer and the trade that is made <lecisive for determining the wholesale cash price which is to be ue measure of the value of the goods for the purpose of excise . . The second or subsequent price, even though on wholesale basis, is not matenal. If excise were levied 01' the basis of second or subseq ue 1Jt wholesale price, it would load the price with a post manufacturing element, namely, selling cost and sellin~ profit of the wholesale dealer. That would be plainly contrary to the true nature of excise as explained in the Valtas' case (supra). Secondly, this would also violate the concept of the factory. gate sale which is the basis of determination of value of the goods for the purpose of excise.\n\nThere can, therefore, be no doubt that where a manufacturer\n\nsell& the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade dis.c count would represent the value of the goods for the purpose of assessment of excise. That would be the wholesale cash price for which the goods are sold at the factory gate within the meaning of s. 4 (a). The price received by the wholesale dealer who purchases the goods from the manufac'urer anp in his turn sells the same in wholesale to other dealers would be irrelevant to the determination of the value and the goods wou!C: not be chargeable to excise on that basis. The conclusion is, therefore, inescapable that the assessable value of the dye stuffs manufactured by the appellants must be taken to be the price at which they were sold by the appellants to JCT and Atul less lo/c trade discount, and not the price charged by ICI and Atul to their dealers. ·. . ·\n\n. We, therefore, allow the appeal, reverse the judgment of the High Court and quash and set aside the assessments to excise duty made by the Excise Authorities on the dye stuffs manufactured by the apellants. We direct the rspondents to refund to the appellants\n\nforhw1th. the amount collected m excess of the correct du•y of excise lev1able 111 accorda~, ce with the princio1e laid down .in this judgment.\n\nThe respondents will pay to the appellants costs in this Court as well as in the High Court.\n\nP.B.R.\n\nAppt!al al/owtd.", "total_entities": 83, "entities": [{"text": "A.TIC INDUSTRIES LTD", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "ATIC INDUSTRIES LTD", "offset_not_found": false}}, {"text": "H. H. DA VE, ASSTT. COLLECTOR OF CENTRAL EXCfSE AND\n\nORS", "label": "RESPONDENT", "start_char": 26, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "H. H. DAVE, ASSTT. COLLECTOR OF CENTRAL EXCISE AND ORS", "offset_not_found": false}}, {"text": "February 14, 1975", "label": "DATE", "start_char": 85, "end_char": 102, "source": "ner", "metadata": {"in_sentence": "February 14, 1975\n\nll [P. N. BHAGWATI, A. c. GUPTA AND N. L. UNTWALIA, JJ.]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 108, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "A. c. GUPTA", "label": "JUDGE", "start_char": 124, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 140, "end_char": 159, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Central Excise and Salt Act 1944", "label": "STATUTE", "start_char": 162, "end_char": 194, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 195, "end_char": 199, "source": "regex", "metadata": {"linked_statute_text": "Central Excise and Salt Act 1944", "statute": "Central Excise and Salt Act 1944"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 865, "end_char": 869, "source": "regex", "metadata": {"linked_statute_text": "Central Excise and Salt Act 1944", "statute": "Central Excise and Salt Act 1944"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 932, "end_char": 941, "source": "regex", "metadata": {"linked_statute_text": "Central Excise and Salt Act 1944", "statute": "Central Excise and Salt Act 1944"}}, {"text": "Central Government", "label": "ORG", "start_char": 2078, "end_char": 2096, "source": "ner", "metadata": {"in_sentence": "The appellant's revision application was rejected bv the Central Government on the ground that since th 0 dye-stuffs manufactured by the apjiellant were not avail;:; ble to an indpen dent buyer in open market conditions at prke at which these were sold by them to the wholesalers these prices could not be adopted as the basis -of ad va/orem assessment under s. 4 of the Act."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 2380, "end_char": 2384, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(a)", "label": "PROVISION", "start_char": 4078, "end_char": 4085, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 5120, "end_char": 5138, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated the 30th March, 11970 of the Gujarat High Court in S.C.A. No."}}, {"text": "N. A. P'alkhivala", "label": "JUDGE", "start_char": 5168, "end_char": 5185, "source": "ner", "metadata": {"in_sentence": "N. A. P'alkhivala, Sol."}}, {"text": "Sorabji", "label": "WITNESS", "start_char": 5195, "end_char": 5202, "source": "ner", "metadata": {"in_sentence": "J, Sorabji, Ashok Desai, D. B. Engineer, K. K. Master, and Ravinder Narain, for the appellant."}}, {"text": "Ashok Desai", "label": "OTHER_PERSON", "start_char": 5204, "end_char": 5215, "source": "ner", "metadata": {"in_sentence": "J, Sorabji, Ashok Desai, D. B. Engineer, K. K. Master, and Ravinder Narain, for the appellant."}}, {"text": "Ravinder Narain", "label": "OTHER_PERSON", "start_char": 5251, "end_char": 5266, "source": "ner", "metadata": {"in_sentence": "J, Sorabji, Ashok Desai, D. B. Engineer, K. K. Master, and Ravinder Narain, for the appellant."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 5288, "end_char": 5300, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and Girish Chandra, for the Respondents."}}, {"text": "Girish Chandra", "label": "OTHER_PERSON", "start_char": 5305, "end_char": 5319, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and Girish Chandra, for the Respondents."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 5460, "end_char": 5471, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 5539, "end_char": 5560, "source": "ner", "metadata": {"in_sentence": "The Judgme:nt of the Court was delivered by\n\nBttAGW ATI, .J .-This appeal, on certificate of fitness obtainl!d under Article 133 (1) (a) of the Constitution, is directed against a judgment of the High Court of Gujarat dismissing Special Civil Application No."}}, {"text": "Atul", "label": "GPE", "start_char": 5924, "end_char": 5928, "source": "ner", "metadata": {"in_sentence": "The appellants carry on business of manufacturing dye-stuffs in a factory situate in a small township called Atul in Bulsar District in th¥ State of Gujarat."}}, {"text": "Bulsar District", "label": "GPE", "start_char": 5932, "end_char": 5947, "source": "ner", "metadata": {"in_sentence": "The appellants carry on business of manufacturing dye-stuffs in a factory situate in a small township called Atul in Bulsar District in th¥ State of Gujarat."}}, {"text": "Gujarat", "label": "GPE", "start_char": 5964, "end_char": 5971, "source": "ner", "metadata": {"in_sentence": "The appellants carry on business of manufacturing dye-stuffs in a factory situate in a small township called Atul in Bulsar District in th¥ State of Gujarat."}}, {"text": "IC! (Indiai LtJ.", "label": "ORG", "start_char": 6138, "end_char": 6154, "source": "ner", "metadata": {"in_sentence": "The dye-stuffs manufactured by the appellants were, throughout the period relevant to this appeal, sold by them in whole.sale units to two wholesale buyers, numely, IC! ("}}, {"text": "ICI", "label": "ORG", "start_char": 6183, "end_char": 6186, "source": "ner", "metadata": {"in_sentence": "Indiai LtJ.\n\n(heremafter referred to as ICI) and Atul Products Ltd. (hereinafter\n\nreerred to as Atul) under respective agreements entered into by them\n\nwith ICI and Atul."}}, {"text": "Atul Products Ltd.", "label": "ORG", "start_char": 6192, "end_char": 6210, "source": "ner", "metadata": {"in_sentence": "Indiai LtJ.\n\n(heremafter referred to as ICI) and Atul Products Ltd. (hereinafter\n\nreerred to as Atul) under respective agreements entered into by them\n\nwith ICI and Atul."}}, {"text": "ICJ", "label": "ORG", "start_char": 6395, "end_char": 6398, "source": "ner", "metadata": {"in_sentence": "Seventy per cent of the dye-stuffs manufactured by the appelIants were sold to ICJ, while the remaining 30% to Atul."}}, {"text": "Atul", "label": "RESPONDENT", "start_char": 6427, "end_char": 6431, "source": "ner", "metadata": {"in_sentence": "Seventy per cent of the dye-stuffs manufactured by the appelIants were sold to ICJ, while the remaining 30% to Atul.", "canonical_name": "Atul"}}, {"text": "Atul", "label": "ORG", "start_char": 7194, "end_char": 7198, "source": "ner", "metadata": {"in_sentence": "ICI charged a higher price but allowed 10% trade discount, while Atul charged a slightly lower price and allowed two and a half per cent trade discount."}}, {"text": "ICI", "label": "OTHER_PERSON", "start_char": 7823, "end_char": 7826, "source": "ner", "metadata": {"in_sentence": "The position which, therefore, obtained during the relevant perid was that the appellants sold the dye stuffs manufactured by thm m wholesale units, 70% to ICI and 30% to Atul, at the basic selling price, bss trade discount of 18%: ICI and Atul in their turn resold a part of the dye stuffs in retail unjts to the textile mills and large consumers at the basic selling price and the balance in wholesale units to the distributors at higher selling prices with 10% trade discount in case of ICI and 2~% trade discount in case of Atul, the net selling prices charged by both of them, however, being the same; and the distributors, in their turn, re-sold the dye stuffs to small consumers in retail units at the small consumers price."}}, {"text": "JCI", "label": "ORG", "start_char": 8576, "end_char": 8579, "source": "ner", "metadata": {"in_sentence": "It may be pointed ciut that though Atul initially charged a lower selling price and gave a trade discount of 2!%, it fell inO!ine with ICI and adopted the same selling price as JCI with trade discount of 10% from and after 1st May, 1963."}}, {"text": "1st May, 1963", "label": "DATE", "start_char": 8622, "end_char": 8635, "source": "ner", "metadata": {"in_sentence": "It may be pointed ciut that though Atul initially charged a lower selling price and gave a trade discount of 2!%, it fell inO!ine with ICI and adopted the same selling price as JCI with trade discount of 10% from and after 1st May, 1963."}}, {"text": "1st March, 1961", "label": "DATE", "start_char": 8686, "end_char": 8701, "source": "ner", "metadata": {"in_sentence": "There was no excise duty on dye stuffs prior to 1st March, 1961, but with effect from that date excise duty was imposed for the first time on dye-stuffs, including those manufactured by the appellants."}}, {"text": "section 3", "label": "PROVISION", "start_char": 8925, "end_char": 8934, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Excise and Salt Act, 1944", "label": "STATUTE", "start_char": 8959, "end_char": 8992, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 9177, "end_char": 9186, "source": "regex", "metadata": {"linked_statute_text": "the Central Excise and Salt Act, 1944", "statute": "the Central Excise and Salt Act, 1944"}}, {"text": "sec1", "label": "PROVISION", "start_char": 10449, "end_char": 10453, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 10833, "end_char": 10842, "source": "regex", "metadata": {"statute": null}}, {"text": "CI Ltd.", "label": "ORG", "start_char": 13435, "end_char": 13442, "source": "ner", "metadata": {"in_sentence": "CI Ltd. and M/s Atul ProdJK;~S Ltd., these pr.tees cannot be aoopte~\n\nas the basis of ad-valorrm assessUlent\" under section 4 of tte Act."}}, {"text": "Atul ProdJK;~S Ltd.", "label": "ORG", "start_char": 13451, "end_char": 13470, "source": "ner", "metadata": {"in_sentence": "CI Ltd. and M/s Atul ProdJK;~S Ltd., these pr.tees cannot be aoopte~\n\nas the basis of ad-valorrm assessUlent\" under section 4 of tte Act."}}, {"text": "section 4", "label": "PROVISION", "start_char": 13551, "end_char": 13560, "source": "regex", "metadata": {"statute": null}}, {"text": "ICT", "label": "ORG", "start_char": 13776, "end_char": 13779, "source": "ner", "metadata": {"in_sentence": "that is, at the price charged by ICT and Atul to the distributors and, therefore, these prices should form the basis of assessment after allowing discount of 10% on the prices charged by !"}}, {"text": "CI", "label": "ORG", "start_char": 13931, "end_char": 13933, "source": "ner", "metadata": {"in_sentence": "CI from the beginning arid 21% on the prices har&i:d\n\nby Atul upto 30th April, 1963 and 10% thereafter and on this basIS directed refund of the excise duty collected by the Excise Autho- rities."}}, {"text": "30th April, 1963", "label": "DATE", "start_char": 13998, "end_char": 14014, "source": "ner", "metadata": {"in_sentence": "CI from the beginning arid 21% on the prices har&i:d\n\nby Atul upto 30th April, 1963 and 10% thereafter and on this basIS directed refund of the excise duty collected by the Excise Autho- rities."}}, {"text": "High Court of Gujarnt", "label": "COURT", "start_char": 14317, "end_char": 14338, "source": "ner", "metadata": {"in_sentence": "The appellants were obviously not satisfied with this rather trivial and insignificant success and since their main plea was negatived by the Central Government, they filed a petition in the High Court of Gujarnt under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 14345, "end_char": 14353, "source": "regex", "metadata": {"statute": null}}, {"text": "Union of India", "label": "ORG", "start_char": 14536, "end_char": 14550, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution challenging the validity of the various orders made by the Excise authorities culminating in the order of the Central Government and seeking a writ directing the Union of India \"to refund excess duty amounting to Rs."}}, {"text": "Calcutta, Mvsore, Andhra Pradesh and Bombay High Courts", "label": "COURT", "start_char": 14945, "end_char": 15000, "source": "ner", "metadata": {"in_sentence": "The Division Bench which heard the petition took the view, following certain decisions of the Calcutta, Mvsore, Andhra Pradesh and Bombay High Courts, that where th~\n\nentire production is sold by a manufacturer to one or more favoured d:stributors, there is no wholesale market in the sense of open market at the site of the factory where an independent buyer can purchase the goods in wholesale and in such a case the price at which the goods are sold by the manufacturer to the favoured distributors cannot be taken to be the assessable value of the goods but the assessable value must be taken to be the price at which the favoured distributors, in their turn, sell the goods in wholesale and if not in wholesale, then in retail."}}, {"text": "Atul", "label": "PETITIONER", "start_char": 15676, "end_char": 15680, "source": "ner", "metadata": {"in_sentence": "and Atul less 18 % trnde discount could not be ado\"lted for determining the assessable value of the dye stuffs since ICI ~1d Atul were favoured distributors and not independent buyers and the Central Government was right in taking the price charged by ICI less 10% trade discount and the price charged by Atul less 2!% trade discount as the assessable value because_ \"that was the wholesale cash price at which the indeoendeo t buyers could get these goods in the nearest wholesale market at the relevant time.''", "canonical_name": "Atul"}}, {"text": "section 4(a)", "label": "PROVISION", "start_char": 16855, "end_char": 16867, "source": "regex", "metadata": {"statute": null}}, {"text": "March 1, 1961", "label": "DATE", "start_char": 18179, "end_char": 18192, "source": "ner", "metadata": {"in_sentence": "Excise duty on the basis of ad-valorem value was imposed on air-conditioners, water-coolers and parts of water-coolers from March 1, 1961."}}, {"text": "section 4(a)", "label": "PROVISION", "start_char": 18237, "end_char": 18249, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 18569, "end_char": 18589, "source": "ner", "metadata": {"in_sentence": "This claim was resisted by the Excise Authorities and tiJe respondent was therefore constrained to file a writ petition in the High Court of Bombay."}}, {"text": "section 4( a)", "label": "PROVISION", "start_char": 18860, "end_char": 18873, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 19434, "end_char": 19438, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 19471, "end_char": 19475, "source": "regex", "metadata": {"statute": null}}, {"text": "Mathew", "label": "JUDGE", "start_char": 20216, "end_char": 20222, "source": "ner", "metadata": {"in_sentence": "Mathew, J., speaking on beh.alf of the Court, explained the true scope and meaning of section 4(a) and its applicability in a situation of this kind in."}}, {"text": "section 4(a)", "label": "PROVISION", "start_char": 20302, "end_char": 20314, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(a)", "label": "PROVISION", "start_char": 20705, "end_char": 20712, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 23300, "end_char": 23305, "source": "regex", "metadata": {"statute": null}}, {"text": "S1", "label": "PROVISION", "start_char": 23313, "end_char": 23315, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act, 1878", "label": "STATUTE", "start_char": 23317, "end_char": 23334, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 4(a)", "label": "PROVISION", "start_char": 24061, "end_char": 24068, "source": "regex", "metadata": {"linked_statute_text": "Customs Act, 1878", "statute": "Customs Act, 1878"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 24502, "end_char": 24506, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(a)", "label": "PROVISION", "start_char": 25000, "end_char": 25012, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(a)", "label": "PROVISION", "start_char": 25923, "end_char": 25930, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(a)", "label": "PROVISION", "start_char": 26347, "end_char": 26359, "source": "regex", "metadata": {"statute": null}}, {"text": "Volt11is", "label": "OTHER_PERSON", "start_char": 26520, "end_char": 26528, "source": "ner", "metadata": {"in_sentence": "In fact, the present case is much stronger than the Volt11is case (supra)."}}, {"text": "Voltas", "label": "OTHER_PERSON", "start_char": 26550, "end_char": 26556, "source": "ner", "metadata": {"in_sentence": "In the Voltas' case\n\n(supra) , 90 to 9 5 per cent of the production was sold by the manufacturer in retail and only a small percentage, namely,, 5 to 10 per cent was sold in wholesale and yet the price charged by the manufacturer to the wholesale dealers less trade discount of 22% was taken as 'the wholesale cash price' for assessmeDlt of value under s. 4 (a).", "canonical_name": "Voltas"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 26896, "end_char": 26900, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(a)", "label": "PROVISION", "start_char": 27843, "end_char": 27850, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(a)", "label": "PROVISION", "start_char": 28331, "end_char": 28338, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 28910, "end_char": 28914, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(a)", "label": "PROVISION", "start_char": 29152, "end_char": 29159, "source": "regex", "metadata": {"statute": null}}, {"text": "IC", "label": "ORG", "start_char": 29218, "end_char": 29220, "source": "ner", "metadata": {"in_sentence": "The contention, therefore, was that the price charged by IC[ and Atul to the dealers less trade discount allowed to them should be taken to be the assessable value of the dye stuffs and not the price charged by the appellants to ICI and Atul less trade discount of 18 % ."}}, {"text": "J1:1athew", "label": "JUDGE", "start_char": 29599, "end_char": 29608, "source": "ner", "metadata": {"in_sentence": "In the first place, as pointed out by J1:1athew, J., in Voltt~' case (supra), ''excise is a tax on the product10~ and manufacture of\n\ngods-Section 4 of the."}}, {"text": "Voltt~", "label": "OTHER_PERSON", "start_char": 29617, "end_char": 29623, "source": "ner", "metadata": {"in_sentence": "In the first place, as pointed out by J1:1athew, J., in Voltt~' case (supra), ''excise is a tax on the product10~ and manufacture of\n\ngods-Section 4 of the."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 29700, "end_char": 29709, "source": "regex", "metadata": {"statute": null}}, {"text": "Valtas", "label": "OTHER_PERSON", "start_char": 32976, "end_char": 32982, "source": "ner", "metadata": {"in_sentence": "That would be plainly contrary to the true nature of excise as explained in the Valtas' case (supra).", "canonical_name": "Voltas"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 33617, "end_char": 33621, "source": "regex", "metadata": {"statute": null}}, {"text": "JCT", "label": "ORG", "start_char": 34087, "end_char": 34090, "source": "ner", "metadata": {"in_sentence": "The conclusion is, therefore, inescapable that the assessable value of the dye stuffs manufactured by the appellants must be taken to be the price at which they were sold by the appellants to JCT and Atul less lo/c trade discount, and not the price charged by ICI and Atul to their dealers. ·. . ·"}}]}
{"document_id": "1975_3_574_581_EN", "year": 1975, "text": "STATE OF MAHARASHTRA\n\nSINDHI @ RAMAN February 19, D75 [V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.l\n\nSec, 374 a11d Sec. 465 of the Cr. P. Code 1898-When does a trial co11c/ude if tli.o. Sessions Judg~ T?asses eat~ sent enc~ and refers to High Court for con- B firmatwn-Whether It is continuatzon of trial-Interpretation of statute-Liberal consm1ction to avoid rep11gna11cy with principles of natural justice.\n\nThe responclent \\lias sentenced to death by the Additional Sessions Judge for double murder. He did not. file any appeal. The tri..I Judge made u reference to the High Court .• for confirmation of death ; entence.\n\nTwc adv,)cates were appointed Amicu> Cu.iae to defend the respondent. After interview with the respondent the advocates reported to th~ High Court that the respondent appeared to b~ imane. He was examined by a Medical !Board consisting of 3 Psychiatrists. According to the Medical Board he wa; not C capable of rati(mal thinking or bhaviour. The High Court came to th~: concl1*sion that the resoondent was clearly of unsound mind.\n\nThe High Court, therefore, postponed the proceeaings in the confirmation case.\n\nOn l1ppeal to this Court by State, it was contended; (I) The provision regarding postponing the proceedings if an l1ccmed is found to be of unsound mind as contained in section 465 <>f the Criminal Procedure Code is confined to the trial stage and does not apply to the proceedings before the High Court on referenc~ as the same are post-trial proceedings.\n\n(2) In proceedingi on reference under section 334 the accused has no right of audiern;:e before the Hi2h Court.\n\n(3) The High Court was wrong in delegating its powers to determine wht; ther the respondent was of unsound mind to the Medical Board.\n\nHELD : (i) As far as an accu$etl person sentenced to death is concerned, his trial does not conclude with termination of the proceedings in the Court of Session: since: the death sentence riassed by the Court of Session is subject E to confirmation by the High Court, the trial cannot b~ deemed to have concluded till an executable sntence is passed by a competent court. The confirmation proceedings are in subitance a continuation of the trial.\n\nExpr, ssion \"at his trial\" occ.t•,; ring in section 465 has to be liberally construed in a manner which is not repugnan! to the fundamental principles of natural justice.\n\n(5790-E; 5800-Ej ·\n\n(2) in coafirmation proceedings the High Court cannot arbilr::riiy refuse to hear the accused either in :>erson or throu1h counsel. It is wrong to ; tate F that the High Court accepted the ipse dixit of the medical expens.\n\nThese experts. gave detailed and cogent re<isons in support of their opinion.\n\nThe High\" _Court meticu!ouslv considered their evidence and thereafter recocdcd its own findings on the crucial issues.\n\n[581B-D] The decision in Vi1•ian Rodrick v. Swte of' West Bengal [1969] 3 S.C.C. 176, followed.\n\nThe decision in cases of J111nma11 & Ors. v. State of Punjab A.LR. 1957 S.C. 469 and Surjit Singh a11d Anr. v. State of Punjab. Criminal Appeal No. rJ G of 1968 decided on 15-10-1968 applied.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 158 of 1971-\n\nAooeal bv Special Leave from the Judgment & OAfer dated the 3rd July, 1970 of the Bombay High Court in confirmation case No. 20 of 1969.\n\nH D. JI. Patel and M. N: Shroff, for the Appelant.\n\nB. R . .Agaiwala, for the Respondent.\n\n• •\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.-The principal question raised in this appel by speciaJ leave is : Whether Section 465 of the Code of Criminal Procedure, 1898, is applicable to proceedings in reference under s. 374 pending befor~ the High Court for confirmation of the death sentence awarded to an accused by the Court of Session ?\n\nIt arises out of these circumstances.\n\nSindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968. Sindhi did not appeal against the order of his conviction. But the trial Judge made a reference under s. 374 of the Code to the High Court for confirmation of the death sentence. The reference came up for hearing towards the end of 1969.\n\nOn 22-10-1969, the prisoner expressed a desire to be present a.t the hearing of his case before the High Court.\n\nTwo Advocates, namely Shri D. M. Rane wi'h Shri Mengde as the Senior were appointed as amicus curiae to deend the condemned prisoner in the High Court. After interviewing the prisoner in Jail on 8-1-1970 and 9-1-1970, the Advocate reported to the High Court that the accused was not able to communicate with them intelligently and rationally as he appeared to be insane. Counsel submitted an application to the Bigh Court requesting that the accused be got examined by a Board <1f psychiatrists in order to determine as to whe'her he. was or was not of unsound mind. The application was opposed on behalf of the State inter alia on the ground that s. 465 applies on! y to a trial before a court of Session. The High Court rejected this contention, and by its order, dated 14th January, 1970. directed the Surgeon-General, Bombay t-0 constitute a Special Medical Board of three psychiatrists on the lines indicated in Rule 850 of the Bombay Jail Manual, to examine the accused and \"determine whether the accused is of unsound mind, and, secondly whether in consequence of his unsoundr ncss of mind, he is ircapable of making his defence in the proceedings before us\". The Board was accordin..gly constituted. The Board deputed Dr. Balakrishna Laxman Chandorkar, Suoerintendent of the Mental Hospital to interview the accused. Dr. Chandorkar, consequently, had fourteen interviews with the accused and also examined the latter physically. The accused was sent, under Dr. Chandorkar's directions, to several hosoitals for special examinations. Dr. Chandorkar 11athered the past historv of the accused, also. in so far as it was relevant to de.termine the issue referred to him.\n\nThe conclusion reached b•1 Dr. Chandorkar. which he reported to the Bord on H 28--2-1970. was that the accused ws suffering from Paranoid Schizoohrenia and was of unsound minci and. in conseaueilce. he\n\nwa~ incaoablc of making his defence. On receiving the reoort of Dr.\n\nChandorkar, the Special Medical Board also examined and interviewed the accused on five occasions. Their conclusion, as communicated to the Hil, lh Court, was :\n\n\"(I) Sindhi Dalwai alias Raman Raghav (Prisoner) is of unsound mind. He is suffering from a psychosis called chronic paranoid schizonphrenia or paraphrenia, the latiler being nn old krm for chronic paranoid schizophrenia plus auditory hallucinations. He is dangerous to the society and hence certifiably insane.\n\n(2) Sindhi knew the nature of the act i.e. he knew that\n\nh~ was killini: human beings.\n\n( 3 J He did know that what he did was wrong and contrary to the law of the land but he firmly believed that what he was doing was right and in tune with the law of \"kanoon\"'' whose law according to him was obligatory for him to follow.\n\n( 4) There is such a degree of unsoundness of mind 1-.2suiling in such a degree of defect of reason that he is\n\ninapable of co-operating with and instructing his defence counsel in the conduct of the trial and court proceedings and he is incapable of making his defence in the proceedings before the High Court. The reasons for this incapability an: :\n\n(a) Complete lack of insight into his ill!less;\n\n(b) firm and unshakable delusions that only the law of\n\n\"Kanoon\" matters and the law of this world does not apply to him and hence his inability to participate in the court proceedings;\n\n( c) his comple•e lack of realization of the gravity of the\n\ncrime and the seriousness of his death sentence;\n\n( d) his judgment is so much influenced by his delusions and hallucinations that he is incapable of rational\n\nthinkin~ and behaviour.\"\n\nAfter examining Dr. Marfatia, the Chairman of the Board and Dr. Chandorkar, the Men1al Spcialist, as court witnesses, the High rt~: .\n\n\"Tbe prisoner is clearly of unsound mind and in conseiquence thereof he is unable to make his defence. Therefore\n\nproceeclins in the confirmation case will have to be postponed and in the meantime it will be necessary to direct that the State Government do detain the prisoner in safe custody in Ycravda Central Prison.''\n\nIt is against this order. dated 3-7-1970, that the State has come in arypaJ before this Court.\n\nMr. Patel. learned Counsel for the appellant, assails the order of the High Court, postponitlg the proceedins under s. 465 Criminal Procedure Code, on these grounds :\n\n(i) The operation of s. 465, is, in terms, confirmed to the trial stage. The section does not apply to pro ceedings before the High Court, on refe1:ence under s. 374, as the same are post-trial proceedmg:;;\n\n(ii) The question as to whether the accused person has\n\nth~ mental capacity to defend himself or not, arises only at the pre-conviction stage before the Comm1 ttal Court or the trial court, because it is only at that stage the accused person has a right to be heard and lead evidence in defence. But in proceedings on referen.ce under s. 374, the accused person has no right of audience before the High Court, not even where the High Court directs a further enquiry or the taking of additional evidence under s. 375, rtor where any appeal of the accused filed through the .iailor under s. 420, comes up for hearing along with the reference. It is another matter that the High Court has the power, even in such proceedings to hear the accused. For this argument support has been sought from certain observations of Madgaonkar A.J.C. in G, ul v. Emperor(l).\n\nIn this connection, learned Counsel has pointed out that at the commencement .of the trial before the Court of Session, also, a question was raised Z.:'i to the mental capacity of the accused and thereupon, the trial Judge after making .a due enquiry in accordance with the provision~ of s. 465, recorded a clear-cut finding that the accused was then of sound mind and capable of understanding the nature of the proceedings and making a defence. This finding of the trial Judge. it is, s•resscd, was not assailed before the Hi!!h Court. and still stands unchallenged. -\n\nLearned Counsel <1lso tried to disinguish the decision of this Court in Vivian Rodrick v. Sto, te of West Benga/(2) on the ground that in that case the convict had preferred an appeal against the order of his conviction, and, consequently, the observations of this Court in regard to the aryplicability of s. 465 Cr. P.C. to proceedings in reference <'re merely obiter. In the al'ernative, it is submitted that those observations need reconsidration in the light of the arguments now advanced before us. ..\n\nSection 465 of the Code of Criminal Procedure 1898 ruris thus : ' . ' \" (I) If any person committed for trial before a Court of\n\nSessiol'l or a High Court appears to the Court at his trial to be of unsound mind and consequently in- ______ cpable of making his defence, the jury, or the\n\n(I) AIR 19cl Sird 84.\n\n(2) fl 9691 3 S.C.C.176\n\nCourt shall, in the first instance, try the fact of such unsoundness and incapacity, and if the jury or Court, as the case may be, is satisfied of the fact, the Judgr~\n\nshall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any, shall be discharged.\n\n(2) The trial of the fact of the unsoundness of mind and incapacity of tht accused sh~IX be deemed to be part of his trial before the C':)Urt.\"\n\n\" I It will be seen that s. 465, in terms /elates to unsoundney; s of accused's mind and his consequent incpacity to make .defeii1:e, at the time of trial only. The question therefore is : Does the trial on a mur<ler charge end with the conviction and pronouncement of :death sentence on the accused by the Court of Session ? Or, docs it continue till the reference under s. 374, is disposed of by the High Court ? Answer to this question was given by this Court, sp<:aking through Govinda Menon J., as far back as 1956 in Jumman and ors.\n\nv. State of Punjab(') in a telling passage thus :\n\n' \"It is clear from a perusal of these provisions (ss. 374, 375, 376 and 377, Cr. P.C.) that in such circumstances the entire case is before the High Court and. in fact it is a colllinuation of the 1rial of the accused on the same evidence and any additional evidence and that is why the High Conrt is given power to take fresh evidence if it so desires. . . . . . . . . . but there is a difference when a refe· rence is made under s. 374, Criminal Procedure Code, and when disposing of an appeal under s. 423, Criminal Pro-· cedure Code, and rhat is that lhe High Court has to satisfy itself as to whether a case beyond reasonable doubt has\n\nben made out against the accused persons for the infliction of the penalty of death. In fact the~ proceedings before the High Court are a reappraisal and the reassessment of the entire facts and Jaw in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such beinl! the case, it is the duty of the High Court to consider the proceedings in all their asvects and come to independent conclusion on the mate-. rials. apart from the view expressed by the Sessions Judge.\"\n\n(emphasis supplied)\n\nThe same position was reiterated with emphasis by this Court i11 Surjit Singh and anr. v. State of Punjaib(2).\n\nEven in Gui v. Em?eror (supra), cited by Mr.\n\nPatel, Madgonkar A. J. C. exoressed himself in a similar strain. What he said more than half a century back still retains its freshness and relevance, and may be extracted : --------\n\n(!) AIR 1957 S.C. 469.\n\n(2) Criminal Ap!)~1\\ No. 77 of 1968 decided on 15-10-1968\n\nMAHARASHTRA v. SINDHI (Sarkatia, !.) 579\n\n\"The worth and sanctity of human life are a test and mark of civilised societies and are increasingly reflted in 1\n\nthe criminal jurisprudence of E'ngland and of India. ·· In\n\nIndia, the Legislature has provided in confirmation pr0ceedings a final safeguard . . . . . . . . . . \"This may perhaps increase our responsibilities and add to our labours; but no one would shirk the one or grudge the other\" even in ll\n\ncas~ where the liberty, much more where the life, of the \\ subject is concerned.\n\nThis duty of judgment is, however laid i111 the first insta, nce upon the Jury a:id the Trial Judge ........ But equally and with all this weight, this Court in confirmation must finally weigh for itself the whole evidence i111 , the light of all the arguments and confirm or otherwise according to its own final conclusion on the guilt or innocence of the sentenced person in the disch2rge of the duty laid upon it by law.\"\n\nFrom the above conspectus, it emerges clear that so far as an -accused person sentenced to death is concerned, his trial does not conclude with the termination of the proceedings in the Court of\n\nSeasion.\n\nThe reason is that the death sentence passed by the COurt of Ses:; ion is subject to confirmation by the High Court.\n\nA trial cannot be deemed to have concluded till an executable sentence is passed by the competent court.\n\nViewed from that stand-point, the confinnR1tion proceedings under ss. ,374, 375_ and 376, Chaptec XXVII of the Code of 1898, are, in substance, a continuation of the trial.\n\nNor is 'it correct to say that in such confirmation proceedings the High Court can arbitrarily refuse Jo hear the accused either in person or through Counsel or other agent.\n\nIn Vivian Rodrick's case (supra), the appellant was convicted under s. 302, Penal Code by the Court of Session and sentenced tci death.\n\nThe Sessions Judge made a reference under s. 374 for confirmation of the death sentence.\n\nThe convict appealed against the order of his conviction and sentence.\n\nThe High Court dismissed the appeal, accepted the reference and confirmed the conviction and the sentence. In an appeal by special leave brought before this Court, it was inter alia contended that the proceedings taken in the appeal before the High Court were void for non-compliance of s. 465.\n\nWhat this court said in repelling that contention, beirtg equally applicable to what has been canvassed before us on behalf of the appellant. may usefully be extracted :\n\n\"We are of the view that it is not nssary for us, in this case. to exoress any ooinion on the rm!icabi!i•v. or otherwise, of the provisions of s. 465, Cr. P. . to appeals.\n\nFor, on the facts of the case. we are inclihed to acceot the alternative con'ention of Mr. Rana that in the face of the medical evidence and in view of the fact that the\n\nappellant was contestili.g his convition. for murder and the\n\nsentenc<: of death imposed on him, 1t would have bee:n prop.::r 1f tne u1v1sion ne1wh whicn hard his ppeal had postponed the hearing of the appeal tll such ttme as the .. appe1lant was aeclared nt to c011t.::; t ms appeal ..... .\n\nWhatever may be the legal position regarding te pplicat bility of s. 465 Cr. P.C. to appeals, we are not mclmed o\n\nagree with toe propos1tton enunciate.d by th.e larn1:.~ Judges that there is no bar to hearing nd d1sposrng of an <1ppeal, even if the accused-appellant 1s of unsomd mind or even insane at the time when the appeal 1s taken i1p for hearing ...... in our. opinion, when t?c r~- port is that an accused appellnt . JS of unsound n:md, t is reasonable to infer that he JS mcapablc of makmg lns dcfcn:e The C<.rnrt. i:1 the circurnstrnces is bound to afford him the same' protection to which he would be entitled h~1d he been of unsound mind at the time of the trial.''\n\nIn the present case no appeal was filed by the prisoner bef?re the High Court.\n\nIt is therefore unnecessary for us to examme\n\nwhcthe~ the provisions of s. 465, in terms, or, in principle, apply, to an appeal by the condemned prisoner before the High Court. '.3uftke it to say that the expression \"at his trial\" occurring in s. 465 ktas to be liberally construed in a malll11er which is not repugnant to the fundamental principle of natural justice conveyed bv the maxim audi alteram partem, audiatur et altera pars. \\\n\nIn the light of what has been said above we negative the legal con1cntions raised by the appellant-State.\n\n The next contention of Mr. Patel is that the High Court left the decision of both the points, viz., ( 1) whether the accused was of unsound mind and (2) whether in consequence he was incapable\n\nef m, king his defence, almost entirely to the Medical Board. Such F delegation which gives the proceeding the colour of trial by Doctors is nt permissible under the law.\n\nReference on this point has been :eiade to R. v. Pondole(1).\n\nOn merits also, it is maintained, the findings on the aforesaid issues, are wrong. as the accused fully :k'nllw that he had been tried and sentenced to death for the murdei'~ 611 ouestion..\n\nErn111i~is has been laid on the fact that the aecused had on 18-12-1969 expressed in writing through Jailor, his G desire to be present in the High Court at the time of the hearing of -his case.\n\nCounsel hs referre:d extensivelv to the statements of Doctor Chandorkar an~ . Dr. Marfatia and contended that everything\n\nabot the mental cond1t1on of the accused even according to these 111ed1cal xperts was normal excepting that he was suffering from the delu_s.10n that he had been ordained bv some higher \"Kanoon\" to co!Il~Jt these murders.\n\nAccording to Mr. Patel, insanity judge:d H by cltrncal standards is different from insanity determined by legal\n\n(1) [1959] All E.R. 418.\n\nMAHARASHTRA v. S!NDHr (Sarkaria, J.) 581 ,\n\nstandards.\n\nIt is ur&ed that since the accused fully knew the nature of the. criminal acts he had committed and the proceeding against him, it could not be said that he was incapable of makirig nis defence.\n\nIt is true that the High Court had by its order dated 14-1-1970, referred both the issues in rc:gard to the mental cap<1city of the accused to the Medical Board, and has given due weight to their opinion.\n\nBut it is not correct to say that the High Court accepted the ipse dixit of the medical experts.\n\nIt examined Dr. Marfatia and Dr. Chandorkar as court w1tnsses. These experts gave detailed and cogeillt reasons in support of their opinion.\n\nThe High Court meticulously com; idered their evidence and thereafter recorded it~ own findings on the crucial issues.\n\nWe nave ourselves examined\n\n.. the evidence rendered by these two mental experts in .the High Court.\n\nWe are satisfied that the conclusion; arrived at by the High Court' in regard to the mental capacity of the accused on the ba!is of this evidence is correct.\n\nIn the result, the appeal fails and is dismissed.\n\nP.H.P Appeal dismissed:", "total_entities": 77, "entities": [{"text": "STATE OF MAHARASHTRA", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "SINDHI @ RAMAN", "label": "RESPONDENT", "start_char": 22, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "SINDHI @ RAMAN", "offset_not_found": false}}, {"text": "February 19, D75", "label": "DATE", "start_char": 37, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "STATE OF MAHARASHTRA\n\nSINDHI @ RAMAN February 19, D75 [V. 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SARKARIA", "offset_not_found": false}}, {"text": "Sec. 465", "label": "PROVISION", "start_char": 114, "end_char": 122, "source": "regex", "metadata": {"statute": null}}, {"text": "section 465", "label": "PROVISION", "start_char": 1305, "end_char": 1316, "source": "regex", "metadata": {"statute": null}}, {"text": "section 334", "label": "PROVISION", "start_char": 1532, "end_char": 1543, "source": "regex", "metadata": {"statute": null}}, {"text": "section 465", "label": "PROVISION", "start_char": 2234, "end_char": 2245, "source": "regex", "metadata": {"statute": null}}, {"text": "Aooeal", "label": "PETITIONER", "start_char": 3163, "end_char": 3169, "source": "ner", "metadata": {"in_sentence": "158 of 1971-\n\nAooeal bv Special Leave from the Judgment & OAfer dated the 3rd July, 1970 of the Bombay High Court in confirmation case No."}}, {"text": "H D. JI. Patel", "label": "LAWYER", "start_char": 3301, "end_char": 3315, "source": "ner", "metadata": {"in_sentence": "H D. JI."}}, {"text": "M. N: Shroff", "label": "LAWYER", "start_char": 3320, "end_char": 3332, "source": "ner", "metadata": {"in_sentence": "Patel and M. N: Shroff, for the Appelant."}}, {"text": "B. R . .Agaiwala", "label": "LAWYER", "start_char": 3353, "end_char": 3369, "source": "ner", "metadata": {"in_sentence": "B. R ."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 3441, "end_char": 3449, "source": "ner", "metadata": {"in_sentence": "• •\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.-The principal question raised in this appel by speciaJ leave is : Whether Section 465 of the Code of Criminal Procedure, 1898, is applicable to proceedings in reference under s. 374 pending befor~ the High Court for confirmation of the death sentence awarded to an accused by the Court of Session ?"}}, {"text": "Section 465", "label": "PROVISION", "start_char": 3528, "end_char": 3539, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 3547, "end_char": 3579, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 374", "label": "PROVISION", "start_char": 3629, "end_char": 3635, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Sindhi alias Raman", "label": "OTHER_PERSON", "start_char": 3793, "end_char": 3811, "source": "ner", "metadata": {"in_sentence": "Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968."}}, {"text": "8-1969", "label": "DATE", "start_char": 3862, "end_char": 3868, "source": "ner", "metadata": {"in_sentence": "Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968."}}, {"text": "Additional Sessions Judge, Greater Bombay", "label": "COURT", "start_char": 3876, "end_char": 3917, "source": "ner", "metadata": {"in_sentence": "Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968."}}, {"text": "Lal Chand Jagannath Yadav", "label": "OTHER_PERSON", "start_char": 3957, "end_char": 3982, "source": "ner", "metadata": {"in_sentence": "Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968."}}, {"text": "Dullar Jaggi Yadav", "label": "OTHER_PERSON", "start_char": 3987, "end_char": 4005, "source": "ner", "metadata": {"in_sentence": "Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968."}}, {"text": "Malad", "label": "GPE", "start_char": 4028, "end_char": 4033, "source": "ner", "metadata": {"in_sentence": "Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968."}}, {"text": "25th and 26th of August, 1968", "label": "DATE", "start_char": 4059, "end_char": 4088, "source": "ner", "metadata": {"in_sentence": "Sindhi alias Raman was tried, convicted and sentenced to death on 13-8-1969 by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, Lal Chand Jagannath Yadav and Dullar Jaggi Yadav in Chi*havali Farm at Malad on the night between the 25th and 26th of August, 1968."}}, {"text": "Sindhi", "label": "OTHER_PERSON", "start_char": 4090, "end_char": 4096, "source": "ner", "metadata": {"in_sentence": "Sindhi did not appeal against the order of his conviction."}}, {"text": "s. 374", "label": "PROVISION", "start_char": 4192, "end_char": 4198, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "22-10-1969", "label": "DATE", "start_char": 4332, "end_char": 4342, "source": "ner", "metadata": {"in_sentence": "On 22-10-1969, the prisoner expressed a desire to be present a.t the hearing of his case before the High Court."}}, {"text": "D. M. Rane", "label": "LAWYER", "start_char": 4469, "end_char": 4479, "source": "ner", "metadata": {"in_sentence": "Two Advocates, namely Shri D. M. Rane wi'h Shri Mengde as the Senior were appointed as amicus curiae to deend the condemned prisoner in the High Court."}}, {"text": "Mengde", "label": "OTHER_PERSON", "start_char": 4490, "end_char": 4496, "source": "ner", "metadata": {"in_sentence": "Two Advocates, namely Shri D. M. Rane wi'h Shri Mengde as the Senior were appointed as amicus curiae to deend the condemned prisoner in the High Court."}}, {"text": "s. 465", "label": "PROVISION", "start_char": 5090, "end_char": 5096, "source": "regex", "metadata": {"statute": null}}, {"text": "14th January, 1970", "label": "DATE", "start_char": 5214, "end_char": 5232, "source": "ner", "metadata": {"in_sentence": "The High Court rejected this contention, and by its order, dated 14th January, 1970."}}, {"text": "Bombay", "label": "GPE", "start_char": 5264, "end_char": 5270, "source": "ner", "metadata": {"in_sentence": "directed the Surgeon-General, Bombay t-0 constitute a Special Medical Board of three psychiatrists on the lines indicated in Rule 850 of the Bombay Jail Manual, to examine the accused and \"determine whether the accused is of unsound mind, and, secondly whether in consequence of his unsoundr ncss of mind, he is ircapable of making his defence in the proceedings before us\"."}}, {"text": "Special Medical Board of three psychiatrists on the lines indicated in Rule", "label": "STATUTE", "start_char": 5288, "end_char": 5363, "source": "regex", "metadata": {}}, {"text": "Balakrishna Laxman Chandorkar", "label": "OTHER_PERSON", "start_char": 5672, "end_char": 5701, "source": "ner", "metadata": {"in_sentence": "The Board deputed Dr. Balakrishna Laxman Chandorkar, Suoerintendent of the Mental Hospital to interview the accused."}}, {"text": "Chandorkar", "label": "OTHER_PERSON", "start_char": 5771, "end_char": 5781, "source": "ner", "metadata": {"in_sentence": "Dr. Chandorkar, consequently, had fourteen interviews with the accused and also examined the latter physically."}}, {"text": "28--2-1970", "label": "DATE", "start_char": 6196, "end_char": 6206, "source": "ner", "metadata": {"in_sentence": "which he reported to the Bord on H 28--2-1970."}}, {"text": "Chandorkar", "label": "WITNESS", "start_char": 6390, "end_char": 6400, "source": "ner", "metadata": {"in_sentence": "On receiving the reoort of Dr.\n\nChandorkar, the Special Medical Board also examined and interviewed the accused on five occasions."}}, {"text": "Sindhi Dalwai alias Raman Raghav", "label": "OTHER_PERSON", "start_char": 6557, "end_char": 6589, "source": "ner", "metadata": {"in_sentence": "Their conclusion, as communicated to the Hil, lh Court, was :\n\n\"(I) Sindhi Dalwai alias Raman Raghav (Prisoner) is of unsound mind."}}, {"text": "Marfatia", "label": "WITNESS", "start_char": 8047, "end_char": 8055, "source": "ner", "metadata": {"in_sentence": "After examining Dr. Marfatia, the Chairman of the Board and Dr. Chandorkar, the Men1al Spcialist, as court witnesses, the High rt~: ."}}, {"text": "Ycravda Central Prison", "label": "ORG", "start_char": 8458, "end_char": 8480, "source": "ner", "metadata": {"in_sentence": "Therefore\n\nproceeclins in the confirmation case will have to be postponed and in the meantime it will be necessary to direct that the State Government do detain the prisoner in safe custody in Ycravda Central Prison.''"}}, {"text": "3-7-1970", "label": "DATE", "start_char": 8517, "end_char": 8525, "source": "ner", "metadata": {"in_sentence": "dated 3-7-1970, that the State has come in arypaJ before this Court."}}, {"text": "Patel", "label": "JUDGE", "start_char": 8585, "end_char": 8590, "source": "ner", "metadata": {"in_sentence": "Mr. Patel.", "canonical_name": "Patel"}}, {"text": "s. 465", "label": "PROVISION", "start_char": 8697, "end_char": 8703, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 8704, "end_char": 8727, "source": "regex", "metadata": {}}, {"text": "s. 465", "label": "PROVISION", "start_char": 8770, "end_char": 8776, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "s. 374", "label": "PROVISION", "start_char": 8908, "end_char": 8914, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "s. 374", "label": "PROVISION", "start_char": 9292, "end_char": 9298, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "s. 375", "label": "PROVISION", "start_char": 9466, "end_char": 9472, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "s. 420", "label": "PROVISION", "start_char": 9543, "end_char": 9549, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Madgaonkar", "label": "JUDGE", "start_char": 9771, "end_char": 9781, "source": "ner", "metadata": {"in_sentence": "For this argument support has been sought from certain observations of Madgaonkar A.J.C. in G, ul v. Emperor(l).", "canonical_name": "Madgaonkar"}}, {"text": "s. 465", "label": "PROVISION", "start_char": 10102, "end_char": 10108, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 465", "label": "PROVISION", "start_char": 10691, "end_char": 10697, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 465", "label": "PROVISION", "start_char": 10893, "end_char": 10904, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure 1898", "label": "STATUTE", "start_char": 10912, "end_char": 10943, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 465", "label": "PROVISION", "start_char": 11700, "end_char": 11706, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure 1898", "statute": "the Code of Criminal Procedure 1898"}}, {"text": "s. 374", "label": "PROVISION", "start_char": 12047, "end_char": 12053, "source": "regex", "metadata": {"statute": null}}, {"text": "Govinda Menon", "label": "JUDGE", "start_char": 12157, "end_char": 12170, "source": "ner", "metadata": {"in_sentence": "Answer to this question was given by this Court, sp<:aking through Govinda Menon J., as far back as 1956 in Jumman and ors."}}, {"text": "ss. 374, 375, 376 and 377", "label": "PROVISION", "start_char": 12317, "end_char": 12342, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 374", "label": "PROVISION", "start_char": 12698, "end_char": 12704, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 12706, "end_char": 12729, "source": "regex", "metadata": {}}, {"text": "s. 423", "label": "PROVISION", "start_char": 12769, "end_char": 12775, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Madgonkar", "label": "JUDGE", "start_char": 13628, "end_char": 13637, "source": "ner", "metadata": {"in_sentence": "Even in Gui v. Em?eror (supra), cited by Mr.\n\nPatel, Madgonkar A. J. C. exoressed himself in a similar strain.", "canonical_name": "Madgaonkar"}}, {"text": "Chaptec XXVII of the Code", "label": "STATUTE", "start_char": 15372, "end_char": 15397, "source": "regex", "metadata": {}}, {"text": "Vivian Rodrick", "label": "OTHER_PERSON", "start_char": 15634, "end_char": 15648, "source": "ner", "metadata": {"in_sentence": "In Vivian Rodrick's case (supra), the appellant was convicted under s. 302, Penal Code by the Court of Session and sentenced tci death."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 15699, "end_char": 15705, "source": "regex", "metadata": {"linked_statute_text": "Chaptec XXVII of the Code", "statute": "Chaptec XXVII of the Code"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 15707, "end_char": 15717, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 374", "label": "PROVISION", "start_char": 15810, "end_char": 15816, "source": "regex", "metadata": {"linked_statute_text": "Chaptec XXVII of the Code", "statute": "Chaptec XXVII of the Code"}}, {"text": "s. 465", "label": "PROVISION", "start_char": 16217, "end_char": 16223, "source": "regex", "metadata": {"linked_statute_text": "Chaptec XXVII of the Code", "statute": "Chaptec XXVII of the Code"}}, {"text": "s. 465", "label": "PROVISION", "start_char": 16540, "end_char": 16546, "source": "regex", "metadata": {"statute": null}}, {"text": "Rana", "label": "OTHER_PERSON", "start_char": 16661, "end_char": 16665, "source": "ner", "metadata": {"in_sentence": "we are inclihed to acceot the alternative con'ention of Mr. Rana that in the face of the medical evidence and in view of the fact that the\n\nappellant was contestili.g his convition."}}, {"text": "s. 465", "label": "PROVISION", "start_char": 17100, "end_char": 17106, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 465", "label": "PROVISION", "start_char": 17866, "end_char": 17872, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 465", "label": "PROVISION", "start_char": 18038, "end_char": 18044, "source": "regex", "metadata": {"statute": null}}, {"text": "18-12-1969", "label": "DATE", "start_char": 19021, "end_char": 19031, "source": "ner", "metadata": {"in_sentence": "as the accused fully :k'nllw that he had been tried and sentenced to death for the murdei'~ 611 ouestion..\n\nErn111i~is has been laid on the fact that the aecused had on 18-12-1969 expressed in writing through Jailor, his G desire to be present in the High Court at the time of the hearing of -his case."}}, {"text": "Marfatia", "label": "OTHER_PERSON", "start_char": 19238, "end_char": 19246, "source": "ner", "metadata": {"in_sentence": "Dr. Marfatia and contended that everything\n\nabot the mental cond1t1on of the accused even according to these 111ed1cal xperts was normal excepting that he was suffering from the delu_s.10n that he had been ordained bv some higher \"Kanoon\" to co!Il~Jt these murders."}}, {"text": "Patel", "label": "JUDGE", "start_char": 19518, "end_char": 19523, "source": "ner", "metadata": {"in_sentence": "According to Mr. Patel, insanity judge:d H by cltrncal standards is different from insanity determined by legal\n\n(1) [1959] All E.R. 418.", "canonical_name": "Patel"}}, {"text": "14-1-1970", "label": "DATE", "start_char": 19946, "end_char": 19955, "source": "ner", "metadata": {"in_sentence": "It is true that the High Court had by its order dated 14-1-1970, referred both the issues in rc:gard to the mental cap<1city of the accused to the Medical Board, and has given due weight to their opinion."}}]}
{"document_id": "1975_3_582_583_EN", "year": 1975, "text": "MADHO LIMAYE A v.\n\nTHt: SUPERINTENDENT, TIHAR JAIL, DELHI & ORS.\n\nFebruary 19, 1975\n\n[K. K. MATHEW. v. K. KRISHNA IYER AND P. K. GOSWAMI, JJ.]\n\nConsti1111io11 A rtide 32-Hah!'ll.1 Corpu.1-Punjab Jail Manual-Racial discrimi11atirl11 berween Indian and E11ro.nea11 p:isoners-Whet!ier quetion raised B cnn he drrennined if detenu released.\n\nThe petitioner filed the present Habeas Cot pus. etition challengig hi.s detention.\n\nThe petitioner also challenged the prov1S1ons of the p, niab Jail Manual which creates artificial discrimination between Indian and European pri)OlhTS in the matter of treatment and diet.\n\nThe resnondent contended that since the oetitioner has been released the petition ha;; become infructuous.\n\nThe petitioner cited various authorities of this Court as well as of the Supreme Court of Un;•ed States that where issues of great moment affecting liberty of the citizen are involved the decision should not be avoided even though the immediate prohibition which led to the filing of the writ pe, ition has for the time being disappeared.\n\nHELD : The Court would not decide ihe issue fer two reasons.\n\nFirstly, the petitioner is no longer in prison and, secondly, the Learned. Solicitor General assured the Court that he would draw attention of the Punjab Government to the need for revision of the imougned rules from the point of view of racial equality. The court hoped that the State Government would take up the reform of the law, eluminate the vice of inequality and update the regulations to be in keeping with the spirit and letter of the paramount Jaw.\n\n[5830-E]\n\nPetition dismi.ssed.\n\nORIGINAL JIJRISDICTION : Writ Petition No. 318 of 1970.\n\nPetition under Article 32 of the Constitution of India.\n\nSantok Singh, for the Petitioner.\n\nL. N. Sinha and R. N. Sachthey, for Respondents Nos. 1 & 3.\n\nThe Judgment of the Court was delivered by :\n\nKRISHNA IYER, J.-Shri Madhu Limaya, M.P. moved this petition F while he was prisoner, imbued more by the pro bona publico spirit than perhaps by his own invidious lot in jail. The gravamen of this - public grievance in that a Jong silver jubilee span of years having elap-- sed after India became a 'Sovereirrn Democratic Re;111h1ic. it is obnoxious that racial discrimination, smacking of colonial hangover, should stubbornly resist arts. 14 & 15 of the Constitution and survive in the Punjab .fail Manual. Tf it were so, it were a matter to G blush f~. but the preliminary objection raised bv the Snlicitor General is thc1t the petitioner having been freed from prison years ago, this Court should not be invited into an academic exercise on a constitutional issue. Of course, he concedes that the C-ourt is not deprived of jurisdiction by the cessation of incarceration. An inflexible rule that as soon as a custodial term or prohibitory order expires the Court will not investifl'ate its legality may well immmli:cc ephemc- H rat illcg1lity against judicial review on unwitting infraction of the amplitude of the Court's powers. But there are cases and cases.\n\nMADHU-LIMAYE v. SUPDT. T!HAR JAIL (Krishna Iyer, ].) 583\n\nMr. Santok Singh, for the petitioner, has brought to our notice decisions of this Court and of the Supreme Court of the United States to press home his point that issues of such great moment afiecting the liberty of the citizens should not be avoided even though the immediate proh101t1on which has led to the writ pet1t10n nas, tor Ilic time being, disappeared (See Carroll v. Commissioners of Princess Anne( 1) and Umted States v. Phosphate t:xpurr Assa(\"); also Maanu Limaye v. Ved Mi.rti(8) and Himat Lal K. Such v. Comm1. of Police, Ahmedabad(4).\n\nThe thrust of the charge of unconstitutionality made by Sri Madhu Limaye consists in the artificial discr:mination between Indian and European prisoners in the matter of treatment and diet, gomg by t11c rules he has set out in his petition. Jt is true that many laws which do not square with the equality enshrined in Arts. l 4 and 15 die l1ard until pronounced dead by the Court Prima f acie the rules quoted are neither fair on their face nor equal in their bosom, as between Indians and Europeans. This white-complex has no right to remain extent in the rules, according to counsel for the petitioner. We have drawn the attention of the Solicitor General to what appears to be an obsolete but overlooked discrimination. We arc not incli, ned to examine this matter more indsively for two reasons. The petitioner is no .longer in prison. Even so may-be the matter can be competently scrutinised from the constitutional angle by this Court. But the learned Solicitor General assures us that he will draw the attention of the Punjab Gm'ernment to the need for rvision of the impugned rules from the point of view of racial equality. In the light of this submission we hope the State Government will tac up the reform of the law, lop off dead wood, eliminate the vice of inequality and update the regulations to be in keeping with the >.pirit and letter of the paramount law.\n\nIn view of this attitude of the Solicitor General, counsel for the petitioner himself expressed th<1t he was not kc:cn on going on with the case. We hope that the above observations would be sufficient for the high purpose the petitioner has in view. ' We accordingly dismiss the petition.\n\nP.H.P.\n\nPetition dismissed\n\n(I) 21 L. Ed. 2d. 325.\n\n(3) A.I.R. 1971 S.C. 2481. 6-470SupCI/75.\n\n(2) 21. L Ed. 2nd. 344 ..\n\n(4) [1973] I S.C.C. 227, 232", "total_entities": 19, "entities": [{"text": "MADHO LIMAYE", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "MADHO LIMAYE", "offset_not_found": false}}, {"text": "THt: SUPERINTENDENT, TIHAR JAIL, DELHI & ORS", "label": "RESPONDENT", "start_char": 19, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "THE SUPERINTENDENT, TIHAR JAIL, DELHI & ORS", "offset_not_found": false}}, {"text": "February 19, 1975", "label": "DATE", "start_char": 66, "end_char": 83, "source": "ner", "metadata": {"in_sentence": "February 19, 1975\n\n[K. K. MATHEW."}}, {"text": "K. K. MATHEW. v. K. KRISHNA IYER", "label": "JUDGE", "start_char": 86, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 123, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Supreme Court of Un;•ed States", "label": "COURT", "start_char": 793, "end_char": 823, "source": "ner", "metadata": {"in_sentence": "The petitioner cited various authorities of this Court as well as of the Supreme Court of Un;•ed States that where issues of great moment affecting liberty of the citizen are involved the decision should not be avoided even though the immediate prohibition which led to the filing of the writ pe, ition has for the time being disappeared."}}, {"text": "Punjab Government", "label": "ORG", "start_char": 1269, "end_char": 1286, "source": "ner", "metadata": {"in_sentence": "Solicitor General assured the Court that he would draw attention of the Punjab Government to the need for revision of the imougned rules from the point of view of racial equality."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 1687, "end_char": 1697, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 1705, "end_char": 1726, "source": "regex", "metadata": {}}, {"text": "Santok Singh", "label": "LAWYER", "start_char": 1729, "end_char": 1741, "source": "ner", "metadata": {"in_sentence": "Santok Singh, for the Petitioner.", "canonical_name": "Santok Singh"}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 1764, "end_char": 1775, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha and R. N. Sachthey, for Respondents Nos."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 1780, "end_char": 1794, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha and R. N. Sachthey, for Respondents Nos."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 1871, "end_char": 1883, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by :\n\nKRISHNA IYER, J.-Shri Madhu Limaya, M.P. moved this petition F while he was prisoner, imbued more by the pro bona publico spirit than perhaps by his own invidious lot in jail."}}, {"text": "Madhu Limaya", "label": "JUDGE", "start_char": 1893, "end_char": 1905, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by :\n\nKRISHNA IYER, J.-Shri Madhu Limaya, M.P. moved this petition F while he was prisoner, imbued more by the pro bona publico spirit than perhaps by his own invidious lot in jail.", "canonical_name": "MADHO LIMAYE"}}, {"text": "India", "label": "GPE", "start_char": 2155, "end_char": 2160, "source": "ner", "metadata": {"in_sentence": "The gravamen of this - public grievance in that a Jong silver jubilee span of years having elap-- sed after India became a 'Sovereirrn Democratic Re;111h1ic."}}, {"text": "arts. 14 & 15", "label": "PROVISION", "start_char": 2305, "end_char": 2318, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Santok Singh", "label": "LAWYER", "start_char": 3098, "end_char": 3110, "source": "ner", "metadata": {"in_sentence": "583\n\nMr. Santok Singh, for the petitioner, has brought to our notice decisions of this Court and of the Supreme Court of the United States to press home his point that issues of such great moment afiecting the liberty of the citizens should not be avoided even though the immediate proh101t1on which has led to the writ pet1t10n nas, tor Ilic time being, disappeared (See Carroll v. Commissioners of Princess Anne( 1) and Umted States v. Phosphate t:xpurr Assa(\"); also Maanu Limaye v. Ved Mi.rti(8) and Himat Lal K. Such v. Comm1.", "canonical_name": "Santok Singh"}}, {"text": "Supreme Court of the United States", "label": "COURT", "start_char": 3193, "end_char": 3227, "source": "ner", "metadata": {"in_sentence": "583\n\nMr. Santok Singh, for the petitioner, has brought to our notice decisions of this Court and of the Supreme Court of the United States to press home his point that issues of such great moment afiecting the liberty of the citizens should not be avoided even though the immediate proh101t1on which has led to the writ pet1t10n nas, tor Ilic time being, disappeared (See Carroll v. Commissioners of Princess Anne( 1) and Umted States v. Phosphate t:xpurr Assa(\"); also Maanu Limaye v. Ved Mi.rti(8) and Himat Lal K. Such v. Comm1."}}, {"text": "Madhu Limaye", "label": "PETITIONER", "start_char": 3707, "end_char": 3719, "source": "ner", "metadata": {"in_sentence": "The thrust of the charge of unconstitutionality made by Sri Madhu Limaye consists in the artificial discr:mination between Indian and European prisoners in the matter of treatment and diet, gomg by t11c rules he has set out in his petition.", "canonical_name": "MADHO LIMAYE"}}]}
{"document_id": "1975_3_584_594_EN", "year": 1975, "text": "PRATAP SINGH A v.\n\nRAJINDER SINGI'l & ANR.\n\nFebruary 20, 1975 [M. H. BEG, Y. v. Cf-V\\NDRACHUD AND A. c. GUPTA, JJ.]\n\nRepresentation of the People Act, 1951-s. 123(5)-Corrupt praclice- B When the Supreme Court appreciates oral evidence-Whether oral testimony , could not be accevted unless corroborated in material particulars-A witness ,,' need not be proved to be a perju; er before his evidence is discarded--How a court should evaluate evidence in a case of corrupt practice.\n\nThe respondent, in his election petition before the High Court, alleged a number of ':orrupt practices hit by , s. 123(4), (5) and (6) of the Representation of the People Act, 1951 against the appellant. who was the duly elected candidate\n\nto the State Assembly.\n\nThe High Court allowed the petition and set aside the C e1ection. , On appeal to this Court it was contended that the High Court overlooked the_ well established principle that the charge of corrupt practice must be treated as quasi-criminal in character which has to be proved beyond reasonable doubt.\n\nAllowing the appeal and remitting the case to the High (:ourt,\n\nHELD : (I )(a) The judgment of the High Court rests largely on appreciation of 'oral evidence. It could not, therefore, be easily, disturbed by this OJ, urt even D in first appeal on facts in election cases.\n\n[587B]\n\n(b) But if the High Court overlooks serious infirmities in the 1vidence adduced to support the case accepted by it or misreads evidence or igr1ores tht: principle that a charge of corrupt practice, in the course of an election, is a grave one which, if established, casts a serious reflection and impose's a oisability upon the candidate l)eld guilty of it, so that the Court must be satisfied beyond reasonable doubt about its veracity, this Court will not hesitate to E interfere.\n\n[587C]\n\nIn the instant case, the High Court did nothing more than to rather mechanically accept the oral_and documentary evidence given to support the cliarge of corrupt practice.\n\nThere was no consideration or discussion of a number of infirmities' both in the oral and documntary evidence to support the charge.\n\nThis is so be1; ause the High Court has held the view that a mere consideration of probabilities, withou, t applying a strict standard of proof beyond reasonable' doubt to a charge of corrupt practice was enough. There is no indication any- F where in the judgment that the stricter standard of proof, which is applicable to such charges, was kept in view by the High Court.\n\n[588G-H] ,\n\nRahim Khan v.\n\nKhurshid Ahmed & Ors. [1974] 2 S.C.C. 660 @? 666, followed.\n\n2(a) It is difficult to accept the contention of the appellant that oral testimony could not be accepted in an allegation of corrupt practice unless it is G corroborated by other kinds of evidence in material particulars.\n\nThere is 'no such general inflexible rule of Jaw or practice which could justify a wholesale condemnation or rejection of a species of evidence which i~ legally ac!missible and can be acted upon under the provisions of the Evidence Act in every type of case. if it is, after pr.oper scrutiny,. found to b~ reliable or wprthy of aC<'.eptance.\n\nThere 1s no presumpt10n that a witness deposing on oa:th m the witniss box is -untruthful unless he is shown to be speaking the truth. The ordinary presumption is, that a witness deposing solemnly on oath before a judicial tribunal is a\n\nWitness of truth unless the contrary is shown.\n\nThe evidence in an election ff petition cannot be equated with that of an accomplice in a criminal case~ whose testimony has, according to a rule of practice, though not of law, to be corroborated in material particulars before it is relied upon.\n\n[589D-E & FJ\n\nPRATAP SINGH v, RAJINDl!R SINGH (Beg, J.) 58 5\n\n(b) It is not required by our law of evidence that a witness must' be proved lo b~ a perjurer before h'B evidence is discarded. It rp.ay be enough, if his evidence appears to be quite improbable or to spring '.from such tainted or biased or dubious a source as to be unsafe to be acted upon without corroboration from evidence other than that of the witness himself. [589F]\n\n(c) There are no golden rules for i!f.Praising hnman te&timony. The extraction of what should constitute 11'.e credible foundation of judicially sound judgment i~ an art which nothing except S(IUDd common sense and prudence combined with ·:xperience can tea:h. (5890] ·\n\n(d > In judging the evidence of a grn•; c charge, prudence dictates that belief in its ool'Ttness should form to basis of a judicial verdict of guilt 0Dly if that belief reaches a convictiOn beyond reasonable doubt. [S90BJ I .\n\n(c) In deciding whether the stricter standard of proof is satisfied in a case of alleged corrupt practice, resting •1pon oral evidence only; the Courts should\n\nb~ particularly astute and not omit to examine falrly the effect of every existing\n\n>ubtanti<~I ground which •:ould introduce a reasonabTe doubt in a case. [590C]\n\nIn the i'lstant case the appellant's contention that the motor drivers would\n\nb~ prepared to commit perjury at the instance of the respondent who was the Jefeated Minister and that because the respondent had been welcomed and garlanded by the President of the Motor Truclc Drivers' Union, the evidence of motor drivers was easily available to him cannot be accepted either as a general rule in election cases, or, on the facts of this particuhr case. It is not reo.sonable to carry a suspicion to the extent of attribl'ting to every witness\n\nrrcaring in support of' the respondent's case a tendency or desire to ·:ommit perjury. The law does not discriminate against or frown upon a former Minister or \\iew every witness produced by him with 6Uspicion because he had been a Minister.\n\nOn the other hand, it is reasonable to believe that a rerson who haq occupied the responsible position of a Ministec would be less inclined to suborn witnesses or conspire to produce perjured evidence. [S90E-G]\n\n\n(f) Where the examination-in-chief and cross-examination of a witness are most unsatisfactory the 1:Cibuna1 is not powerless in the preformance of its duty to ascertain the truth. There is not only s. 165 of the Evidence Ai:t. which\n\nnables the Court to put any question it likes to a witness, but there are also\n\nprovisions of O.XVI, r. 14 CPC. The High Court adopted a standard of proof which is not strict enough in appraising the worth of evidence produced to 'UPPOrt a charge of corrupt practice.\n\n(5920-H]\n\nCRIMINAL APPELLATE\n\nJURISDICTION : Criminal Appeal No. 808 of 1973.\n\nFrom the judgment and order dated the 30th March, 1973 of the Punjab & Haryana High Court in Election Petition No. 14 of 1972.\n\nR. K. Garg, S. C. Aganvala, V. J. Francis an(! R. C. K. Kaushik, for the appellant.\n\nT. :s'. Krishnamurthi Iyer, K. C. Agarwa/a, M. M. L. Sriraslava and 'E. C. Agarwala, for respondent No. 1.\n\nA. T. M. Sampath, for respondent No. 2.\n\nThe Judgment of the Court was delivered by H BEG, J.-Pritam Singh, the appellant before us under Section ll6A ot the Representation of the People Act, 1951 (hereinafter referred . to as 'the Ad), was elected at an election held on 11-3-1972 for the Haryana State Legislative Assembly, the result of which was declared ' 7-470SCl/75\n\non 12-3-1972. The Respondent Balbir Singh questioned this election by means of an election petition alleging that the election wa> void as the appellant had committed corrupt practices hit by Section 123. sub. s.4. 5 al1.d 6 of the Act. The petition was allowed by a learned Judge of the High Court of Punjab & Haryana, solely on the ground that the corrupt practice, provided for as follows, in Secfr.:m 123(5) of the Act, was committed by the appellant:\n\n\"123(5). The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the C'Onsent of a candidate or his election agent, or the use of such vehicle or vessel for the free c0nvcyance of any elector (other than the candidate himselr, the members of his family or his agent) to or from any po1ling station provided under section 25 or a place\n\nc fixed under sub-section (I) of section 29 for the poll :\n\nProvided that. the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purposes of conveying him or them to and from any such polling 3tation or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical J)owcr :\n\nProvided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such pQlling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause\".\n\nThe appellant assails the judgment of the High Court on th.: following main grounds with which ·.·c will deal scriatim :\n\n1. That, the High Court em:d in relying upon legally unproved .:ntrics in what is called a Pukar book or register showino: both the 11iring out and then payments for the use of certain trucks on 11-3-\n\n1972, the date of election, for purposes of election.\n\n2. That~ the Register itself is inadmissible in evidence under a1w provisicn of the Evidence Act. -\n\n3. That, the entries in the Pubr Register arc suspicious indicating that the Register itself, or, atleast, the entries involved were\n\nnot contemporaneous but fabricated after the election was over.\n\n4. That, the High Court erred in relying upon the evidence of d13llans by the police on 11-3-1972 of drivers oi trucks said to have been ued by tl:c appellant when the best evidence in th!.! possession of the police relatmg to :hese challans was not forthcoming so that the\n\nchaans apcarcd to have been manouvcred for the purpose 'Of supportmg a talse case.\n\n:i. That, the High Court erred in relying upon merely uncorroborated oral testimony of Motor uuck drivers in acccptit1~ the respondent's case which was not rally cormborated as the alleged C..'rrnborative evidence was nt cvi<lcnce at all in the eye of law.\n\n.G.\n\nPRATAP SINGH v. RAJI~DER SINGH (Beg, J.) 587\n\n6. That, the High Court overlooked the well established principle that the charge of a corrupt practice in the course of an election must be treated as quasi-criminal in character which has to be proved beyond reasonable doubt.\n\nWe will deal with these objections in the reverse order, starting with the last mentioned ground of attack on the High Court's judgment. The judgment rests largely on appreciation of oral evidence. It could not, therefore, be easily disturbed by us as has been repeatedly pointed out by this Court even in first appeals on facts in election cases. If the High Court overlooks serious infirmities in the evidence\n\nadduced to support the case accepted by it or misreads evidence m ignores the principle that a charge of corrupt practice, in the coursl.! of :.\\fl election, is a grave one which, if established, casts a seriousreflection and imposes a disability upon the candidate held guilty <•f it, so that the Court must be satisfl.cd beyond reasonable doubt about its veracity, this Court will not hesitate to interfere.\n\nLearned Counsel for the appellant has relied upon the decision of this Court in Rahim Khan v.\n\nKh11rshid Ahmed & Ors.,(') whm: Krishna Iyer, J., speaking for this Court, said (at p. 666) :~\n\n\"An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency.\n\nCourts naturally must respect this public expression secretly wri•tcn and show extreme reluctance to act aside or declare void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returnecl candidate is adduced. Indeed, election petitions where c'0rrupt practices arc imputed must be rr.gar<lcd as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is\n\ntherefore heavy on him who assails an election which has been concluded\".\n\nIn Rahim Khan's case (supra) our learned brother Krishna Iyer also warned us in the words of Sydney Harris (at p. 666):\n\n\"Once we assuage our conscience by calling something a necessary evil', it begins to look more and more necessary and Jess and less evil\".\n\nHe then proceeded to observe (at p. 666) :\n\n\"For this very reason the Court has to be stern so as induce in the canclidatcs, the parties and workers that temper and truthfulness so appropriate to the process ........ \"\n\nI ·-.\n\n(1) 1974 2 sec p. 6<io@ r. 666.\n\nAfter poiliting out the difficulty of laying down any ast iron or rigid rules for testing the veracity of witnesses, this Court said (at p. 672) there:\n\n\"We regard it as extremely uJisafe, in the present climate of kilkenny-cat election co:npetitions and partisan witnesses wearing robes of veracity, to upturn a hard won eke- . toral victory merely because lip se:rvicc to a corrupt practice\n\nhas he<!il. rendered by some sano:timonious witnesses. The Court must look for serious assurance, untying circumst2.nces or tJnimpeachablc documents to uphold grave charges of corrupt practice which might not merely cancel the clccti1)n\n\nresult, but extinguish many a man's public life\".\n\nIn that case, this Court found the charge of a corrupt practice to be established upon oral and documentary evidence given to support it.\n\nIn . the case before us, we find that the High Court accepted the evidence of Uggar Sain, P.W. 24, because, i11ter a/ia, it was supported by a \"Pukar Register\" kept by the Union of truck drivers of trucks hired in the order said l!o be determined by their places in the Register. It relied on this evidence despite certain serious objections to the entries in the Register showing payments for the trucks said 1:1 have been used by the appellant. The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from _ the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokba Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajindcr Si1 ; i1, P.\\V. 38, each of whom had deposed that he was paid a sum of Rs. 150/- on 10-3-1972 for performing election duty for the appellant for carrying voters on 1 l-3-1972. The learned Judge observed about these drivers:\n\n\"None of them is shown to be interested in the petit.ioncr or ngainst the returned candidate nor was the deposition of any one of them shaken in cross-examination and I do 11ot see any good reason for discarding their sworn word.\n\nAs would be seen later, they actually plied their trucks for the returned candidate on the 1 lth of March, 1972 ... a fact which clinches the matter against him\".\n\nThe denial of the returned candidate were rejected by the lear:ned Judge on the groWld that these were made by a highly interested party. After having been taken through the judgment we are not satisfied that the learned Judge did anything more than to rather mechanically accept the oral and documentary evidence given to support the charge. We cc:rtainly do not find there any consideration or cli5¢ussion of a number of infirmities which have been placed before us both in the oral and documemary evidence adduced to support the charge. We think that this is so bccai:ise the learned Judge seems to have held the view that a mere consideration of probabilities without applyt.lg d strict standard of proof beyond reasonable dobt to a . cha<ge of corrupt practice was enough here.\n\nPRATAP SINGH v. RAJINDER SINGH (Beg, I.) s 9\n\nAfter going through the evidence relating to the use of each truck, and repeating, rather mechanically, that this evidence on. behalf of the petitioner was acceptable in each instance given, the learned Judge concluded :\n\n\"As a result of the discussion of the evidence under this issue, I hold that the retumed candidate hired and used trucks Nos. HRR 5155, HRR 5161, HRR 5077, HRR 5013, and HRR 597, for the free conveyance of electors to V'arious polling stations and thus committed the corrupt practice defined in clause ( 5) of scctio•,1 123 of the Act\".\n\nWe find no indication anywhere in the judgment th_at the stricter standard of proof, which is aplicable to such charges, was kept in view by e learned Judge. \\ ;\n\nThe fifth ground of objection set out above seems to proceed on the erroneous assumption that oral testimony cannot be accepted when a corrupt practice is set up to assail an election unless it is corrob<J.. rated by other kinds of evidence in material particulars. We are not aware of any such general inflexible rule of !•aw orpractice which could justify a wholesale condenmation or rejection of a species of evidence which is legally admissible and can be acted upon under the provisions of Evidence Act in every type of case if it is, after proper scrutiny found to be reliable or worthy of acceptance. There is no presumption, either in this country or •anywhere else, that a witness, deposing on oath in the wiraess box, is untruthful unless he is shown to be, indubitably, speaking the truth.\n\nOn the other hand, the ordinary presumption is that a witness deposing solemnly on oath before a judicial tribunal is a witness of truth unless the contrary is show:i.\n\nIt is not required by our law of evidence that a witness must be proved to b.:! a perjurer before his evidence is discarded. It may be enough if his evidence appears to be quite improbable or to spring from such tainted or biased or dubious a source as to be unsafe to be acted i..pon without corroboration from evidence other than that of the witness himself.\n\nThe evidence of every witness in an election case cannot be dubbed as intrinsically suspect or defective.· It cannot be equated with that of <an accomplice ii,1 a criminal case whose testimony has, according to a rule of practice though not of law, to be corroborated in material particulars before it is relied upon.\n\nTI1is Court pointed out in Rahim Khan's case (supra) that there arc no golden rules for <appraising human testimony. In assessing its worth Judges can err honestly just as witness ca',1 make honestly mistaken statements under oath. The extraction of what should constitute the credible foundation of judicially sound judgment is an art which nothing except sound common sense and prudeace combined with experience can teach. A sound judgment must disclose a fair attempt to \"separate the grain from the chaff\" as it has often been said.\n\n Section 3 of the Evidence Act lays down : \"A fact is said to be proved when after considering the matters before it, the Court either believes it to c; xist or on-\n\nSUPRD!E COURT REPORTS [1975] 3 s, c.R,\n\nsidcrs its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists\".\n\nHence it has sometimes been argued that the same standard of . proof applies to all types of cases. Such a contention seems plausible.\n\nHut, what has to be borne in mind is that, i'.1 judging the evidence o[\n\na grave charge, prudence dictates that the belief in its correctness should form the basis of a. judicial verdict of guilt only if that belief\n\nr1aches a convU:tion beyond reasonable doubt. If prudence is the real tc!st, it prescribes differing standards of proof in differing circumstances.\n\nIts requirements preclude any Procrustcwa bed of uniformly rigid rules for each type of case.\n\nThe circumstances under whic~ reasonable doub.t may or may not\n\n.::ist in a case cannot possibly qc exhaustively catalogued. All that one can say is that in deciding whether the stricter stand•ard of proof is satisfied in a case of alleged corrupt practice, resting upon oral evidence only, the Courts should be particularly astute and not omit to examine fairly the effect of every existing substantial ground which could introduce a reasonable doubt in a case. In doing so, the Court has also to beware of bare suspicion, based on popular prejudices o:r belief sought to be introduced merely to bias the Court against a witness or a partly of a particular type.\n\nIn the case before us, we find that the learned Counsel for the ;1ppcllant has repeatedly referred to the fact that the respondent, whose cllcction petition succeeded before the learned J udgc, was a defeated former Minister of the ruling Congress party. Learned Counsel wanted us to infer that, because the respondent had been welcomed and garlanded by the President of the Motor Truck Drivers' Union of Ganaur, the evidence of motor drivers was easily available to him. In other words, we were asked to assume that the motor drivers would be prepared to conunit perjury, at tne instance rf the President of the Motor Truck Drivers' Union, only to please a former defeated Minister.\n\nWe do not think that: it is reasonable to carry such a suspicion to the extent of attributing; to every witness appearing in support of the respondent's case a tendency or desire to commit perjm y.\n\nThe law docs not discriminate against or frown upon a former Minister, belonging to any party, whether in or out of power, so that it must view every witness produced by him with suspicion simply because he had been a Minister. On the! other hand, we think that it would not be unreasonable to believe that a person who has occu!Jied the responsible position of a Minister will be less inclined to suborn witnesses or conspire to produce perjured evidence just because he is defeated in an election which is not the only test of a person's worth or resoectab; litv in society. We think that a person who has held a responsible office will be. acting _imprudntly if he spoils his public image by deliberately producmg pequrcd evidence.\n\nWe are not prpared to uphold the 5th contention of the appellant that, eit1er as a general rule. in election cases, or on the :facts of this par•icular case, the evidence of the motor drhcrs must be , necessarily rejected simply berruse it is oral tcstimonv of drivers of trucks who had formed a Union which had once invited\n\nIi.'\n\nPRATAP SINGH r. R,\\JINDER SINGH (Beg,}.) 591\n\naod garlanded the rcspo, ndent.\n\nWe, however, think that tho evidence had to be more carefully scrutinized than the High Court wa!'. disposed to do it.\n\nAs was pointed out in Rahim Klu111's case (supra), evidence considerc'; J unsafe to be acted upon by a judicial Tribunal r.ccd not be necessarily false. '\n\nTurning to the 4th ground of objection, relating the prosecutions of truck drivers by the Police for alleged offences said to have taken place on 11 . 3 . 1972, we find that the High Court accepted the allc gation that the drivers were challancd on 11. 3. 19n without commeriting on some conflicting evidence as to the date on which the motor drivers were challaned. In reply, it has been contended that witnesses who could have given more evidence on this question were not only given up by the petitioner respondent but also by the appellant as. the date of chal!ans was accepted or not questioned on behalf of the ;; ippcllant. Our attention is invited to a Miscellaneous application No. 216-E/72 dated 19.10.1972 where learned Counsel for the appellant not merely stated that he did not want to examine either the Mohrir Constable of Police Station Ganaur or a Clerk of the office of the Superintendent of Police, Rohtak, but prayed that \"the above two wit\n\nncsses may kindly be informed telegraphically not to appear on\n\n23. 10. 72\".\n\nIt is, therefore, argued, not without force, that the date of the challans was not seriously disputed by the appellant before the High\n\nCo~Jrt so that this question should not be allowed to be argued before us.\n\nIt was also contended on behalf of the respondent that there had been some tamperin_g with the record in the Magistrate's Court which explained the contrary evidence given bv Subash Chander, P.W.11, the Ahalmad of a Magistrate's Court, showing that the chaltan was dated 17-3c 1972. It was orally prayed that \\VC should summon and .:xamine, at this stag; c, the original record from the Court of the Magistrate concerned, However, as no argument appears to have been addressed on this questicn in the High Court we think that this as a matter which the High Court can and should itself examine after summoning the record from the Magistrate's Court as we propose to send the case back to it for reconsideration after taking some further evidence.\n\nIt has been argued on behalf of the respondent that there s enough evidence of the motor truck drivers and of the voters carried as weil as documentary evidence, i, ncluding a log book of a driver, to show that the truck used on behalf of the respondent were carrying V'1ters to the election booth, and were, therefore, challaned 0,1 11-3-1972 because carrying of passengers in truck was not permitted.\n\nIt was admitted that no entry was made in the general diary of Ganaur Police Station, according to the rules, but this, it was contended for the respondent, is not conclusive as relevant entries relating to some petty offences are often missing. These arc, however some of the matters which the High Court can and should consider. ' It appears to us that a number of points, on the worth of various items of evidence, which have been raised for tht' 1st time t6 question\n\nSUPRUIE COURT REPORTS\n\n(1975) 3 S.C..R.\n\nthe authenticity of the evidence relating to the prosecution of driver~ of trucks, said to have been carrying voters for the appellant were\n\nnot advanced before the High Court.\n\nWe think that we ought tt1 have the benefit of scrutiny of the whole evidence on this question by\n\nthe High Court and its findings thereon.\n\nWe are not prepared to proceed on the assumptio!l that the respondent could easily get evidence fabri.cated as he had been n minister. ·\n\nWe may now deal with the first three grounds cif objection, all relating to what is called the Pukar Register.\n\nIt is true that Uggar Sain, P.W. 24, who was called to prove the Pukar Register, did not actually depose in whose handwriting the entries in it were made or what could or could not be properly ente:rcd here. The trend of cross-examination, however, shows that it pro- C cee<led on the assumption that Uggar Sain, P.W. 24, was actual!v making entries in it.\n\nBut, neither this fact was proved in the cxamina:tion-in-chief nor was the course of business, according to which entries could be made in the Register, including entries of alleged payments by the respondent, proved.\n\nA number of question raised before us, throwing some suspicion on the authenticity of the entries in this Pukar R1!gister and the dates on which they could be or were D made seem to us to be entirely new.\n\nThey were not suggested to P.W. 24, Uggar Sain, who might have had some explanations for these suspicious features.\n\nNor do all these defects seem to have been mentioned in the course of arguments before the High Court. For example, the truck numbers of trucks said to have been sent to the appellant do not appear against the name of the appellant but seem inserr.ed afterwards above the place where they would be expected to E be found.\n\nThe exact meaning or effect of such a feature could. only have been brought out by cross-examination of Uggar Sain, P.W. 24 on behalf of the appellant.\n\nAs regards the admissibility of the Pnkar Register and evidence of prosecution of the truck drivers, we are unable to accept the submission that these are inadmissible under the Evidence Act.\n\nEven F though the course of business under which the Pukar Register was kept was not proved, we think that documents, such as the Pukar Regis1tcr all, d those -relating to the prosecutions of the drivers, who were said t() be ami11t voters on 11. 3 .1972, could be proved under section 11 of the E~ Act.\n\nWe think that, in view of the importance of the evidence Ugg, ar G Sain, P.W. 24 both his examination-in-chief and his cross-examination are must unsatisfactory.\n\nWe may here observe that the election Trib1, mal is not powerless in such cases in the performance of its duty to ascertain the truth.\n\nThere is not only Section 165 of the Evidence Act which enables the Court to put any question it likes IQ a witness. but there are also the provisions of order XVI, Rule 14, Civil Procedure Code which lay down : H\n\n\"Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force,\n\n.A\n\n.; PRATAP SINGH 1. RAJL'IDER SINGH (Beg, J.) . 593\n\nwhere the Court at any lime thinks it necessary to examine . any person other than a party to the suit am! not called as a\n\nwitness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness t<i give evidence, or to. produce any dcicument in his possessiOn, on a dav to be appointed, and may examine him as a v.itncss or require hini to produce such document\".\n\nWe think. that the ascertainment of a numbr of essential facts relating to the charge was n.eithcr regular nor sufficiently detailed in the case now before us.\n\nWe find that the High Court proceeded on the assumption that facts which ought to have been technically proved had been sufficiently prqved.\n\nIt too 'readily accepted the evidence, both oral and documenL'lry, without examining all the. defects of it . which have been sought to be placed before us.\n\nWe are left with an unavoidable impression that important aspects of the case were neither satisfactorily brought out clearly by the evidence in the case nor examined by the High Court despite the voluminous evidence led by the parties and the lenithy judgment delivered by the T'ibunal. We also find that t~.e Court adopted a standard of proof which is not strict enough in appraising the worth of evidence produced to support a charge of corrupt' practice. As it is not the practice of this Court to reassess evidence or to perform the duties of the Trial Court, even in election first appeals, un!ess no other course is left open to it, we think that this is a fit case in which we should send back the case for reconsideration by the High Court after recalling such witnesses as may be considered necessary by it, '; ind, in particular, Uggar Sain, P.W. 24, so that at least !he Pukar Register, assumed to have been duly proved, may be proved in accordance with law.\n\nWe think that the objections to the proof of this. document, and of entries in it <lo not go beyond objections to the mode of proof.\n\nThe entries in it could be accepted as sufficiently rlible on1¥ after a much more rigorous examination of their maker than the parties or the Court subjected him to.\n\nW~ think that we should noil give a finding upon the reliabili~ of these entries before the , allegedfy suspicious features have been specifically put to P.W. 24, Uggar Safn, who was assumed to have made the entries without even asking 'him whether he did make them. !\n\n. . Jn the result,. we set aside the judgment .md order of the High-\n\nCortt.!oo,, we t~d the case to it f?r dispoShl in accordance with law after adtluctJo'!./lf such further evidence as may be necessary in the intereslO\"bf:iustice, In view of our order remanding the case to\n\n··-~· .. ···- ., . .,. .--· the High Court it is unnecessary to consider the three Civil Miscel-\n\n\" •\n\n- ·•\n\nlaneous Petitions for urging addition grounds, for condonation o{ delay in filing the application for urging additional grounds, and for\n\nrcrmission to file a ct:rtified copy of the summary register for 2 !3-1972 and 22-3-197'.?. of the Court of Judicial Magistrate 1st CJ.ass, Sonepa.t. These applications are, therefore, dismissed. Parties\n\nmay, however, make appropriate applications in the High Court. 'fl1c costs of this litigation in the High Court as well as in this Court will abide the result. The appellant will continue to function as an elected member subject to the result of the Election Petition.\n\nP. It R.\n\nAppeal allowed", "total_entities": 65, "entities": [{"text": "PRATAP SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "PRATAP SINGH", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 63, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. c. GUPTA, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 117, "end_char": 155, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 123(5)", "label": "PROVISION", "start_char": 156, "end_char": 165, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 195, "end_char": 208, "source": "ner", "metadata": {"in_sentence": "Representation of the People Act, 1951-s. 123(5)-Corrupt praclice- B When the Supreme Court appreciates oral evidence-Whether oral testimony , could not be accevted unless corroborated in material particulars-A witness ,,' need not be proved to be a perju; er before his evidence is discarded--How a court should evaluate evidence in a case of corrupt practice."}}, {"text": "s. 123(4)", "label": "PROVISION", "start_char": 592, "end_char": 601, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 622, "end_char": 660, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S90B", "label": "PROVISION", "start_char": 4617, "end_char": 4621, "source": "regex", "metadata": {"statute": null}}, {"text": "S90E", "label": "PROVISION", "start_char": 5940, "end_char": 5944, "source": "regex", "metadata": {"statute": null}}, {"text": "Cibuna1", "label": "RESPONDENT", "start_char": 6050, "end_char": 6057, "source": "ner", "metadata": {"in_sentence": "S90E-G]\n\n(f) Where the examination-in-chief and cross-examination of a witness are most unsatisfactory the 1:Cibuna1 is not powerless in the preformance of its duty to ascertain the truth."}}, {"text": "s. 165", "label": "PROVISION", "start_char": 6148, "end_char": 6154, "source": "regex", "metadata": {"statute": null}}, {"text": "CPC", "label": "STATUTE", "start_char": 6291, "end_char": 6294, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "R. K. Garg", "label": "JUDGE", "start_char": 6660, "end_char": 6670, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Aganvala, V. J. Francis an(!"}}, {"text": "S. C. Aganvala", "label": "LAWYER", "start_char": 6672, "end_char": 6686, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Aganvala, V. J. Francis an(!"}}, {"text": "R. C. K. Kaushik", "label": "LAWYER", "start_char": 6707, "end_char": 6723, "source": "ner", "metadata": {"in_sentence": "R. C. K. Kaushik, for the appellant."}}, {"text": "Krishnamurthi Iyer", "label": "LAWYER", "start_char": 6753, "end_char": 6771, "source": "ner", "metadata": {"in_sentence": "Krishnamurthi Iyer, K. C. Agarwa/a, M. M. L. Sriraslava and 'E. C. Agarwala, for respondent No.", "canonical_name": "Krishnamurthi Iyer"}}, {"text": "K. C. Agarwa", "label": "LAWYER", "start_char": 6773, "end_char": 6785, "source": "ner", "metadata": {"in_sentence": "Krishnamurthi Iyer, K. C. Agarwa/a, M. M. L. Sriraslava and 'E. C. Agarwala, for respondent No.", "canonical_name": "E. C. Agarwala"}}, {"text": "M. M. L. Sriraslava", "label": "LAWYER", "start_char": 6789, "end_char": 6808, "source": "ner", "metadata": {"in_sentence": "Krishnamurthi Iyer, K. C. Agarwa/a, M. M. L. Sriraslava and 'E. C. Agarwala, for respondent No."}}, {"text": "E. C. Agarwala", "label": "LAWYER", "start_char": 6814, "end_char": 6828, "source": "ner", "metadata": {"in_sentence": "Krishnamurthi Iyer, K. C. Agarwa/a, M. M. L. Sriraslava and 'E. C. Agarwala, for respondent No.", "canonical_name": "E. C. Agarwala"}}, {"text": "A. T. M. Sampath", "label": "LAWYER", "start_char": 6853, "end_char": 6869, "source": "ner", "metadata": {"in_sentence": "A. T. M. Sampath, for respondent No."}}, {"text": "H BEG", "label": "JUDGE", "start_char": 6937, "end_char": 6942, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by H BEG, J.-Pritam Singh, the appellant before us under Section ll6A ot the Representation of the People Act, 1951 (hereinafter referred ."}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 7011, "end_char": 7049, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "11-3-1972", "label": "DATE", "start_char": 7125, "end_char": 7134, "source": "ner", "metadata": {"in_sentence": "to as 'the Ad), was elected at an election held on 11-3-1972 for the Haryana State Legislative Assembly, the result of which was declared ' 7-470SCl/75\n\non 12-3-1972."}}, {"text": "12-3-1972", "label": "DATE", "start_char": 7230, "end_char": 7239, "source": "ner", "metadata": {"in_sentence": "to as 'the Ad), was elected at an election held on 11-3-1972 for the Haryana State Legislative Assembly, the result of which was declared ' 7-470SCl/75\n\non 12-3-1972."}}, {"text": "Balbir Singh", "label": "OTHER_PERSON", "start_char": 7256, "end_char": 7268, "source": "ner", "metadata": {"in_sentence": "The Respondent Balbir Singh questioned this election by means of an election petition alleging that the election wa> void as the appellant had committed corrupt practices hit by Section 123."}}, {"text": "Section 123", "label": "PROVISION", "start_char": 7419, "end_char": 7430, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s.4", "label": "PROVISION", "start_char": 7437, "end_char": 7440, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "section 25", "label": "PROVISION", "start_char": 8080, "end_char": 8090, "source": "regex", "metadata": {"statute": null}}, {"text": "section 29", "label": "PROVISION", "start_char": 8136, "end_char": 8146, "source": "regex", "metadata": {"statute": null}}, {"text": "11-3-\n\n1972", "label": "DATE", "start_char": 9152, "end_char": 9163, "source": "ner", "metadata": {"in_sentence": "That, the High Court em:d in relying upon legally unproved .:ntrics in what is called a Pukar book or register showino: both the 11iring out and then payments for the use of certain trucks on 11-3-\n\n1972, the date of election, for purposes of election."}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 11362, "end_char": 11374, "source": "ner", "metadata": {"in_sentence": "whm: Krishna Iyer, J., speaking for this Court, said (at p. 666) :~\n\n\"An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate.", "canonical_name": "Krishnamurthi Iyer"}}, {"text": "Rahim Khan", "label": "OTHER_PERSON", "start_char": 12456, "end_char": 12466, "source": "ner", "metadata": {"in_sentence": "In Rahim Khan's case (supra) our learned brother Krishna Iyer also warned us in the words of Sydney Harris (at p. 666):\n\n\"Once we assuage our conscience by calling something a necessary evil', it begins to look more and more necessary and Jess and less evil\"."}}, {"text": "Krishna Iyer", "label": "LAWYER", "start_char": 12502, "end_char": 12514, "source": "ner", "metadata": {"in_sentence": "In Rahim Khan's case (supra) our learned brother Krishna Iyer also warned us in the words of Sydney Harris (at p. 666):\n\n\"Once we assuage our conscience by calling something a necessary evil', it begins to look more and more necessary and Jess and less evil\".", "canonical_name": "Krishnamurthi Iyer"}}, {"text": "Sydney Harris", "label": "OTHER_PERSON", "start_char": 12546, "end_char": 12559, "source": "ner", "metadata": {"in_sentence": "In Rahim Khan's case (supra) our learned brother Krishna Iyer also warned us in the words of Sydney Harris (at p. 666):\n\n\"Once we assuage our conscience by calling something a necessary evil', it begins to look more and more necessary and Jess and less evil\"."}}, {"text": "Uggar Sain", "label": "WITNESS", "start_char": 13874, "end_char": 13884, "source": "ner", "metadata": {"in_sentence": "the case before us, we find that the High Court accepted the evidence of Uggar Sain, P.W. 24, because, i11ter a/ia, it was supported by a \"Pukar Register\" kept by the Union of truck drivers of trucks hired in the order said l!o be determined by their places in the Register."}}, {"text": "Khandu Ram", "label": "WITNESS", "start_char": 14414, "end_char": 14424, "source": "ner", "metadata": {"in_sentence": "The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from _ the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokba Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajindcr Si1 ; i1, P.\\V. 38, each of whom had deposed that he was paid a sum of Rs."}}, {"text": "Harish Lal", "label": "WITNESS", "start_char": 14435, "end_char": 14445, "source": "ner", "metadata": {"in_sentence": "The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from _ the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokba Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajindcr Si1 ; i1, P.\\V. 38, each of whom had deposed that he was paid a sum of Rs."}}, {"text": "Jai Gopal", "label": "WITNESS", "start_char": 14456, "end_char": 14465, "source": "ner", "metadata": {"in_sentence": "The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from _ the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokba Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajindcr Si1 ; i1, P.\\V. 38, each of whom had deposed that he was paid a sum of Rs."}}, {"text": "Chokba Namad", "label": "WITNESS", "start_char": 14476, "end_char": 14488, "source": "ner", "metadata": {"in_sentence": "The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from _ the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokba Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajindcr Si1 ; i1, P.\\V. 38, each of whom had deposed that he was paid a sum of Rs."}}, {"text": "Gurbachan Singh", "label": "WITNESS", "start_char": 14499, "end_char": 14514, "source": "ner", "metadata": {"in_sentence": "The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from _ the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokba Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajindcr Si1 ; i1, P.\\V. 38, each of whom had deposed that he was paid a sum of Rs."}}, {"text": "Rajindcr Si1", "label": "WITNESS", "start_char": 14528, "end_char": 14540, "source": "ner", "metadata": {"in_sentence": "The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from _ the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokba Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajindcr Si1 ; i1, P.\\V. 38, each of whom had deposed that he was paid a sum of Rs."}}, {"text": "10-3-1972", "label": "DATE", "start_char": 14621, "end_char": 14630, "source": "ner", "metadata": {"in_sentence": "150/- on 10-3-1972 for performing election duty for the appellant for carrying voters on 1 l-3-1972."}}, {"text": "of March, 1972", "label": "DATE", "start_char": 15090, "end_char": 15104, "source": "ner", "metadata": {"in_sentence": "As would be seen later, they actually plied their trucks for the returned candidate on the 1 lth of March, 1972 ... a fact which clinches the matter against him\"."}}, {"text": "s 9", "label": "PROVISION", "start_char": 15982, "end_char": 15985, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 18901, "end_char": 18910, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Truck Drivers' Union of Ganaur", "label": "ORG", "start_char": 20896, "end_char": 20932, "source": "ner", "metadata": {"in_sentence": "Learned Counsel wanted us to infer that, because the respondent had been welcomed and garlanded by the President of the Motor Truck Drivers' Union of Ganaur, the evidence of motor drivers was easily available to him."}}, {"text": "Rahim Klu111", "label": "OTHER_PERSON", "start_char": 22694, "end_char": 22706, "source": "ner", "metadata": {"in_sentence": "As was pointed out in Rahim Klu111's case (supra), evidence considerc'; J unsafe to be acted upon by a judicial Tribunal r.ccd not be necessarily false. '"}}, {"text": "11 . 3 . 1972", "label": "DATE", "start_char": 22974, "end_char": 22987, "source": "ner", "metadata": {"in_sentence": "Turning to the 4th ground of objection, relating the prosecutions of truck drivers by the Police for alleged offences said to have taken place on 11 ."}}, {"text": "11. 3. 19n", "label": "DATE", "start_char": 23077, "end_char": 23087, "source": "ner", "metadata": {"in_sentence": "1972, we find that the High Court accepted the allc gation that the drivers were challancd on 11."}}, {"text": "19.10.1972", "label": "DATE", "start_char": 23534, "end_char": 23544, "source": "ner", "metadata": {"in_sentence": "216-E/72 dated 19.10.1972 where learned Counsel for the appellant not merely stated that he did not want to examine either the Mohrir Constable of Police Station Ganaur or a Clerk of the office of the Superintendent of Police, Rohtak, but prayed that \"the above two wit\n\nncsses may kindly be informed telegraphically not to appear on\n\n23."}}, {"text": "Mohrir Constable of Police Station Ganaur", "label": "ORG", "start_char": 23646, "end_char": 23687, "source": "ner", "metadata": {"in_sentence": "216-E/72 dated 19.10.1972 where learned Counsel for the appellant not merely stated that he did not want to examine either the Mohrir Constable of Police Station Ganaur or a Clerk of the office of the Superintendent of Police, Rohtak, but prayed that \"the above two wit\n\nncsses may kindly be informed telegraphically not to appear on\n\n23."}}, {"text": "Rohtak", "label": "GPE", "start_char": 23746, "end_char": 23752, "source": "ner", "metadata": {"in_sentence": "216-E/72 dated 19.10.1972 where learned Counsel for the appellant not merely stated that he did not want to examine either the Mohrir Constable of Police Station Ganaur or a Clerk of the office of the Superintendent of Police, Rohtak, but prayed that \"the above two wit\n\nncsses may kindly be informed telegraphically not to appear on\n\n23."}}, {"text": "Subash Chander", "label": "WITNESS", "start_char": 24255, "end_char": 24269, "source": "ner", "metadata": {"in_sentence": "It was also contended on behalf of the respondent that there had been some tamperin_g with the record in the Magistrate's Court which explained the contrary evidence given bv Subash Chander, P.W.11, the Ahalmad of a Magistrate's Court, showing that the chaltan was dated 17-3c 1972."}}, {"text": "17-3c 1972", "label": "DATE", "start_char": 24351, "end_char": 24361, "source": "ner", "metadata": {"in_sentence": "It was also contended on behalf of the respondent that there had been some tamperin_g with the record in the Magistrate's Court which explained the contrary evidence given bv Subash Chander, P.W.11, the Ahalmad of a Magistrate's Court, showing that the chaltan was dated 17-3c 1972."}}, {"text": "Ganaur Police Station", "label": "ORG", "start_char": 25295, "end_char": 25316, "source": "ner", "metadata": {"in_sentence": "It was admitted that no entry was made in the general diary of Ganaur Police Station, according to the rules, but this, it was contended for the respondent, is not conclusive as relevant entries relating to some petty offences are often missing."}}, {"text": "11. 3 .1972", "label": "DATE", "start_char": 28126, "end_char": 28137, "source": "ner", "metadata": {"in_sentence": "Even F though the course of business under which the Pukar Register was kept was not proved, we think that documents, such as the Pukar Regis1tcr all, d those -relating to the prosecutions of the drivers, who were said t() be ami11t voters on 11."}}, {"text": "section 11", "label": "PROVISION", "start_char": 28161, "end_char": 28171, "source": "regex", "metadata": {"statute": null}}, {"text": "Ugg", "label": "WITNESS", "start_char": 28245, "end_char": 28248, "source": "ner", "metadata": {"in_sentence": "We think that, in view of the importance of the evidence Ugg, ar G Sain, P.W. 24 both his examination-in-chief and his cross-examination are must unsatisfactory."}}, {"text": "ar G Sain", "label": "WITNESS", "start_char": 28250, "end_char": 28259, "source": "ner", "metadata": {"in_sentence": "We think that, in view of the importance of the evidence Ugg, ar G Sain, P.W. 24 both his examination-in-chief and his cross-examination are must unsatisfactory."}}, {"text": "Section 165", "label": "PROVISION", "start_char": 28505, "end_char": 28516, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 28661, "end_char": 28681, "source": "regex", "metadata": {}}, {"text": "PRATAP SINGH", "label": "JUDGE", "start_char": 28826, "end_char": 28838, "source": "ner", "metadata": {"in_sentence": "PRATAP SINGH 1.", "canonical_name": "PRATAP SINGH"}}, {"text": "RAJL'IDER SINGH", "label": "JUDGE", "start_char": 28842, "end_char": 28857, "source": "ner", "metadata": {"in_sentence": "RAJL'IDER SINGH (Beg, J.) ."}}, {"text": "Uggar Safn", "label": "WITNESS", "start_char": 31179, "end_char": 31189, "source": "ner", "metadata": {"in_sentence": "W~ think that we should noil give a finding upon the reliabili~ of these entries before the , allegedfy suspicious features have been specifically put to P.W. 24, Uggar Safn, who was assumed to have made the entries without even asking 'him whether he did make them. !"}}]}
{"document_id": "1975_3_595_600_EN", "year": 1975, "text": "DHOOM STNGH\n\n\\' '•\n\nPRAKASH CHANDRA SETH[ & ORS.\n\nFebruary 20, 1975 [M. H. BEG, A. AlAGIRISWAMl AND N. L. UNTWAL!A, JJ.]\n\ntprcsent~lon of /'copfc Act 195l-Scctio11 81(3), 86(1)-116-A if a11 l'iecllon pet1t1011a co/111.m-e/y or frm1du/e11tly rcfrai11 from prosecuting tlie appea! whether a11otlzc1 l'Otl'I' can apply to proceed \\\\'ith the petitio11er-l11terpretatw11 of .lfat11te-Lacr111a.\n\nRespondent No. 1 was elected to Madhya Pradesh legislative Assembly.\n\nThird respondent filed an Election Petition for declaring the election of tht: first\n\nre~nden~ v<; iid.\n\nRespondent No. 1 ade a1~ .application to _the High Court raismg obJect10n that copy of the election pettuon and the affidavit served 011 him were not signed and that it amounted to non-compliance with section 81 (3) of the Representation of People Act. 1951, and the election petition was liable to be dismissed under section 86(1 ). Several persons including appellant intervened to say that respondent No. 3 had colluded with respondent No. I and that as a matter of fat there was no non-compliance with the requirement of section 81 ( 3).\n\nThe appellant offered to sub>tantiate bis allegation.\n\nThe intervention applica tions fileC: were rejected by the High Court. The High Court held that there was non-compliance with section 81 (3) and, therefore, dismissed the election petition.\n\nThe appellant filed an appeal to this Court under section 116-A of the Act. In the alternative, he prnyeJ to treat it as the petition under Article 136.\n\nThis Hon'ble Court allowed the appeal to treat it as a Special Leave Petition and granted Special leave. The appellant was n!5t permitted to challenge the order of the High Court made under section 86. He was, however, allowed to challenge the refusal of the High Court to allow him to intervene.\n\nThe appellant contended :\n\n( I )\n\n(2)\n\nThat in substance and effect the action of the third respondent w\"s. tantamount '.o withdrawal of his election petition and in that view of the matter the procedure prescribed in sections 109 and 110 of the Act ought to have been followed and given effect to.\n\nThat in any view of the mtter resr>ondent no. 3 should riot have been permitted to walk out of the field without an investigation of the facts allegeJ by the appellant which if found true, would have shown that there was no non-compliance with the requirement of tl1e law and the election petition was not liable to be dismissed under section 86.\n\n(3) Ill an election disrmte the whole constituency is interested and any elector of that cons•itl'ency from which a candidate had bren returned and whose election has been challenged can intervene in the matter.\n\nHELD : It is difficult io acceot that in ubstance and in effect th~ action of respondent No. 3 even assuming that it was collusive or fraudulent had the effect of withdrawing his election petition. The legislature has chosen to make special provisions for the continuance of the election petition only in ca-se of it< withdrawal or abatement. It is not necessary for this Court to express any opinion as to whether omission to do so is deliberate or inadvertant. Tt may be a case of Casus omis<.us. It is a well-known rule of -construction of statu'.es that a Statute, even more tha.n a contract. must be construed, ut res magis va/est auam pee11:. <O 'hat the intentions of the Legislature canno~ be treated a< vain or left to ope•ate in the <iir.\n\nAnother consequence of this rnle is that a statute cannot be ex•ended to meet a case for which provision has clearly and undonbtedly not been made. [593H; 5998-Dl\n\nShed!ta11 Singh v. Mohan Lal Gautam ( 1969) 3 S.C.R. 417 disti•nguished.\n\nHELD FURTHER : There is undoubtedlv a lacuna in the Act because it mkc> provision when an election petitioner is allowed to withdraw but makes no\n\n , uch proviion if he just r.efuses to prosecute it. However, in such conti11g1ncy, if thought neces>ary it is for the Legislature to intervene. The Court w~1s helpk<s. The appeal was dismissed. [6000]\n\nC1v1L APPELLATE JURISDICTION: Civil Appeal No. 1560 of 1973. i .\n\nFrom the Judgment & Order dated the 23rd January, 1973 of thc Madhya Pradesh High Court in Election Petition No. J 3 or 197~.\n\nS. P. Gupta, S. S. Khanduja and E. C. Agarwala, for the Appel- 'J:tnt .•\n\nRam P1•11jwmu, C. S. S. Rao, iJ. N. Mishra, J. 8. Dadadia11ji am!\n\nO.C. Mathur, for Respondent No. I;\n\nRespondent No. 2 appeared in person.\n\nThe Judgment of the Court was delivered hy\n\nIJNTWALIA, J.\n\nRespondent No. I in this appeal was elected_ a Member of the Madhya Pradesh State Legislative Assembly from the Ujjain North Assembly Constituency. The third respondent filed an eiection petition on, 25-4-1972 in the Madhya Pradesh High Court for declaring the election of the first respondent void.\n\nAfter service nf the notice of the election petition alongwith the enclosures thereto.\n\nRespondent No. 1 made an application on 28-11-1972 to the Higl1 Court raising an objection that out of the copies of the election pcti- 1ion, list of Annexures, Anncxurcs and Affidavits served on him, only the anncxurcs were signed by Respondent No. 3 and the rest were not signed by him. Respondent No. I submitted to the Court that there\n\nwas non-compliance with the requirc; ment of subsection 3 of Section i'1 of the Representation of the People Act, 1951-(hcreinafter called the Act) and hence the election petition was liable to be dismissed under section 86 (I ) . A learned single Judge of the High Court to whom the election petition had hecn transferred for disposal heard\n\nthe matter on several dates along with some other miscellaneous petitions filed in the case. Time was granted to learned counsel for Respondent No. 3 to resist the prayer of Respondent No. 1 for dismissal . F of the election petition. Eventually learned counsel for respondent withdrew from the case and the respondent presented his case in person to the Court.\n\nSeveral persons in the meantime intervened to say that Respondent No. 3 had colluded with\n\nRe~'10Ildent No. 1, as a matt.er of fact there was no non-compliani:e with the requirement of section 81(3) of the Act, and therefore, the election petition could not be dismissed under section 86.\n\nTiuy :1skcd the Court to allow them to intervene. Praver of one suc:h person was refused by the High Court on 12-1-1973. Finally when the order on the objection of Rep::mdent No. 1 was going to be made on 23-1-1973, the appellan, t came forward to make an application for intervention. He stated that Respondent No. 3 in colluion with Respondent No. :l had admitted that the copies of the petition were\n\nnot attested to be true conies and were not signed by him. on enquiries he had come to know that all 'the copies of the petition and the annexures were duly attested to he true copies of the petitions\n\nG '\n\nDHOO~I S!~Gll \\'.. P. c. SETH! (Untwalia, .!.) 597\n\n.111c.i were signed by Respondent No. 3, it was not in the interest 'ot justice to dismiss the election petition a~ a result of the false and collw; ivc stand of Respondents 3 and 1.\n\nThe appellant offered to substantiate hL~ allegation and prayed for a week's time to do the\n\name. In the meantime passing of the order on the petition of Re~ pondent No. I was asked to be deferred.\n\n'I11c High Court ask.:d the appellant's counsel who was none eise than the counsel of Respondent No. 3 and who had withdrawn from representing him, to show under what provision of the Act or any other law an elector of the Constituency as the appellant was, had a right to intervene in the case.\n\nSince the appellant's Advocate was unable to show it the prayer of the appellant was rejected by an order passed on 23-1-1973.\n\nLater on the same date by a reasoned tlmf lonp; order the ob_jection of Respondent No. I was allowed on the basis of the copies of the various papers as they were before the Court. It was held that there was non-compliance with the rc4uiremcnt of section 81 ( 3) of the Act and hence the elecuon petition was dismissed by the separate order passed on 23-1-1973.\n\nThe appellant presented-an appeal to this Court under section l I 6A of the Act along with a petition lo pennit him to file the\n\ntppeal. In the alternative a prayer was made to treat the petition of appeal as a petition under Article 136 .of the Constitution of India fur seeking special leave of this Court, to file an appeal from the order refusing the appellant's prayer made in his petition dated 23-1-1973.· A Bench of this Court upon hearing counsel for the appellant and Respondent No. 1 permitted the converting of the appeal\n\no[ the appellant into a special leave petition and granted special kave by its order dt. 11-10-1973. It also directed the consideration 0[ the question at the time of the hearing of the appeal whether an appeal would lie to this Court in the circumstances of the case.\n\nMr. Ram Panjwani, learned counsel for Respondctit No. l point..:d <>ut that special leave was granted on a limited question and at the \"utsct it had to be decided whether the appellant's appeal is compeknt. Mr. S. V. Guptc, learned counsel for the appellant ubmitted\n\nthat in this ver.y appeal it had to be decided whether the appellall1 had a locus standi to prefer an appeal to this Court under section l 16A of the Act from the order of the High Court dismissing the election petition of Respondent No. 3 under section .86. In any view of the matter, counsel further submitted, the present appeal was ..:ompetent from the order of the High Court rejecting the appellant'~\n\nprayer made in his petition dated 23-1-1973.\n\nAlthough in view of the explanation appended to sub-section ( 1 ) o[ Section 86 of the Act au order of the High Court dismissing the election petition under the said sub-section is to be deemed to be an order made under clause (a) of Section 98 and hence appealable under section 116A, learned counsel for the appellant found it rlifficult t() satisfy us that the scope of this appeal was to find out whether th\" appellant was a person who had a right to file such an appeal or in anv event he .had such light. The appellant was not a pa11y\n\n•to the election petition nor was he allowed the intervention by the .High Court.\n\nIn this appeal, therefore, there is no 9uestion of permitting the appellant to challenge the order of the High Court made . under-section 86 of the Act on merits,\n\nThere is, however, no doubt that in this appeal it is open to the\n\n.ap~Jlant to assail the order made by the High Court on bis petition filed on 23-1-1973. To do so it was argued for the appellant :-\n\n( 1) That in substance and effect the action of the third :respondent was tantamount tp withdrawal of his selection petition and in that view of the matter the procedure prescribed in sections 109 and 110 of the Act ought to have been followed and given effect to ..\n\n(2) That in any view of the matter Respondent No. 3 should not have been permitted to walk out of th~ field without an investigation of the facts alleged by the appellant, which if found true, would have shown that there was no non-compliance with the requirement of the Jaw and the election petition was not\n\nliable to be dismissed under-section 86.\n\n( 3) In an election dispute the whole Constituency is interested and any elector of that Constituency from which a candidate had been returned and whose election has been challenged can intervene in the matte!'.\n\nWe do not think that any of the points urged on behalf of the ; appellant is fit to succeed.\n\nChapter II of the Act containing sections 80 to 84 deal with presentation of election petitions.\n\nC\"hapter III starting from sr.ction 86 is headed \"Trial of Election l:'etitions\". Then comes Chapt€:r IV\n\ninr, orporating sections 109 to 116 providing for the procedure !o be followed in case of withdrawal and abatement of election petitions.\n\nUnder sub-section (1 ), of section 109 an election petition may be wit.hdrawn only by leave of the High Court. When such an applica tion is' made notice is to be. given not onliy to the parties to the election petition but it is to be published in the official gazette also. sub-section (2.) of section 110 enjoins upon t.1e High Court not to allow . the withdrawal application if it has been induced by any bargain or consideration which ought not to be allowed. If the withdrawal application is granced then section 110(3)(c) permits a person who might himself have been a petitioner in the election petition to apply to be substituted as petitioner in place of the party withdrawing within 14 days of the date of the publication of the notice in the official gazette.\n\nSimilarly on the abatement of an election petition on the death of the petitioner or petitioners as the\n\n<:aS(~ may be any person who might himself have' been petitioner can apply to be substituted under sub-section (3) of section 112.\n\nJ[t is .<Jifficult to accept the contention put forward on 'behalf of the :appellant that in substance and in . effect the action of Respondent\n\nDHOOM SINGH \\', P. C, SETHI (Untwa/ia, .I.) 599\n\nNo. 3, even assumiu~ it was collusive or fraudulent, had the effect of. withdrawing his election petition by him. It may also be added tha~;\n\nhere was. no such stand taken by the appellant in his. tition ~~Cl,. m the High Court on 23-1-1973.\n\nNone of the prov1s1ons relating, to withdrawal of election petition was attracted in this case. . The Legislature in its wisdom has chosen to make special provi s1?ns for the continuance of the election petition only in case of its withdrawal or abatement. It has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the Constituenoy in all contingencies of failures of the election petition either due to the collusion or fraud of the original elcction peiitioner or otherwise.\n\nIt is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent.\n\nIt may be a case of Casus omissus. It is' a wellknown rule of construction of statutes that \"A statute. even more than a contract, must be construed, ut res magis va/etll qu41tt pereat, si that the intentions of the legislature may not be treated. as vain or left to operate. in the air.\" A second consequent of this (Ule is tha't \"a statute may not be . extended to meet a case for which provision has clearly and undoubtedly not been made''-Scc pages 69 and 70 of Craies on Statute Law-,6th edition.\n\nIt seems plain that the High Court is enjoined to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Act.\n\nIn the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may E be a case, as the instant one was alleged to be (we are e:'!:pressing • no opinion of ours in. this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under section 8-6(1).\n\nEven in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in F the matter or to .substantiate his allegations of fraud or collusion between the election petitioner and -the returned candidate. It is. difficult to press . into service the general principles of law governing. an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. If there be any neccssi ty of avoiding any such situation as the present one was said to b.\\! it is for the legislature to intervene. and make clear and express prov1- G sion of faw for the purpose.\n\nMr. Gupte in support of his argument placed reliance upon a passage which occurs at page 421 in the judgmnt ?f this court in .\n\nSheahan Singh v. Mohan Lal Gautam(!) and which 1s to the following effect:\n\n\"From the above provisions it is seen that in an plection H petition, the contest is really between the O)nsituency on the one side and the -person or persons corr•plamed of on -·(i)- [3) S.C.R. 417.\n\nthe other.\n\nOnce the machinery of the Act is moved by n candidate or an elector, the carriage of the case does not entirely rest with t_he petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not atllowcd to avoid the consequences of their misdeeds.\"\n\n15ut the said obs.:rvations cannot and were uot meant to t1av.:I beyond the realm of the contingencies of withdrawal and abatement of an election petition.\n\nfo Dµryodha11 v. Silaram and otliers( t) oue o( the learned Judge.-. coCllltituting the Full Bench in his separate judgment pointed out at\n\npage 14 of a similar contingency arising in the case of dismissal of an election petition for default of appearance of the election petition.er. The argument that in such a situatio, n \"the intention of the legislature that: a petition should not fail by reason of any bargain\n\nlll' collusion between the election petitioner and the successful candidate would be frustrated\" was repelled on the ground \"There\n\ni~ undoubtedly a lacuna in the Act, because it makes provision when a11 election . petitioner is allowed to withdraw, but makes no such provision if he just refuses to prosecute it.\n\nBut that reason would nuc, a.s pointed out by Grover, J. in Jugal Kishore's case AIR 1956 l'unj 152 (supra) be a sutlicicnt reason to construe the provision~ beyond the purvww of their language.'' This is another type of contingency, where if thought necessary.\" it is for the Lcgislatur~ to\n\ninkrvcnc. The Court is helpless. r n our judgment, therefore, none of. the contentions raised tin he half of the <!ppellant is fit to be accepted as sound.\n\nThe appeal fail!i and is dismissd. But in the circumstances we shall 1n:ikc nP , 1rder as to costs.\n\nP H.P.\n\nAppeal dis111is.1ei/.\n\n1 tl A.LR. 1970. Allahabad I.\n\nI:.", "total_entities": 57, "entities": [{"text": "DHOOM STNGH", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "DHOOM STNGH", "offset_not_found": false}}, {"text": "PRAKASH CHANDRA SETH[ & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "PRAKASH CHANDRA SETHI & ORS", "offset_not_found": false}}, {"text": "February 20, 1975", "label": "DATE", "start_char": 50, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "February 20, 1975 [M. H. BEG, A. AlAGIRISWAMl AND N. L. UNTWAL!A, JJ.]"}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 69, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "M. 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V. Guptc", "label": "JUDGE", "start_char": 9048, "end_char": 9059, "source": "ner", "metadata": {"in_sentence": "Mr. S. V. Guptc, learned counsel for the appellant ubmitted\n\nthat in this ver.y appeal it had to be decided whether the appellall1 had a locus standi to prefer an appeal to this Court under section l 16A of the Act from the order of the High Court dismissing the election petition of Respondent No.", "canonical_name": "S. P. Gupta"}}, {"text": "Section 86", "label": "PROVISION", "start_char": 9628, "end_char": 9638, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 98", "label": "PROVISION", "start_char": 9793, "end_char": 9803, "source": "regex", "metadata": {"statute": null}}, {"text": "section 116A", "label": "PROVISION", "start_char": 9831, "end_char": 9843, "source": "regex", "metadata": {"statute": null}}, {"text": "section 86", "label": "PROVISION", "start_char": 10314, "end_char": 10324, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 109 and 110", "label": "PROVISION", "start_char": 10733, "end_char": 10753, "source": "regex", "metadata": {"statute": null}}, {"text": "section 86", "label": "PROVISION", "start_char": 11156, "end_char": 11166, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter II of the Act", "label": "STATUTE", "start_char": 11476, "end_char": 11497, "source": "regex", "metadata": {}}, {"text": "sections 80 to 84", "label": "PROVISION", "start_char": 11509, "end_char": 11526, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "sections 109 to 116", "label": "PROVISION", "start_char": 11696, "end_char": 11715, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "section 109", "label": "PROVISION", "start_char": 11846, "end_char": 11857, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "section 110", "label": "PROVISION", "start_char": 12114, "end_char": 12125, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "section 110(3)(c)", "label": "PROVISION", "start_char": 12329, "end_char": 12346, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "section 112", "label": "PROVISION", "start_char": 12814, "end_char": 12825, "source": "regex", "metadata": {"statute": null}}, {"text": "DHOOM SINGH", "label": "RESPONDENT", "start_char": 12973, "end_char": 12984, "source": "ner", "metadata": {"in_sentence": "effect the action of Respondent\n\nDHOOM SINGH \\', P. C, SETHI (Untwa/ia, .I.) 599\n\nNo.", "canonical_name": "DHOOM STNGH"}}, {"text": "s1", "label": "PROVISION", "start_char": 13426, "end_char": 13428, "source": "regex", "metadata": {"statute": null}}, {"text": "section 81", "label": "PROVISION", "start_char": 14541, "end_char": 14551, "source": "regex", "metadata": {"statute": null}}, {"text": "section 82", "label": "PROVISION", "start_char": 14555, "end_char": 14565, "source": "regex", "metadata": {"statute": null}}, {"text": "section 117", "label": "PROVISION", "start_char": 14569, "end_char": 14580, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 15052, "end_char": 15061, "source": "regex", "metadata": {"statute": null}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 15737, "end_char": 15742, "source": "ner", "metadata": {"in_sentence": "Mr. Gupte in support of his argument placed reliance upon a passage which occurs at page 421 in the judgmnt ?"}}, {"text": "Grover", "label": "JUDGE", "start_char": 17432, "end_char": 17438, "source": "ner", "metadata": {"in_sentence": "But that reason would nuc, a.s pointed out by Grover, J. in Jugal Kishore's case AIR 1956 l'unj 152 (supra) be a sutlicicnt reason to construe the provision~ beyond the purvww of their language.''"}}, {"text": "Jugal Kishore", "label": "OTHER_PERSON", "start_char": 17446, "end_char": 17459, "source": "ner", "metadata": {"in_sentence": "But that reason would nuc, a.s pointed out by Grover, J. in Jugal Kishore's case AIR 1956 l'unj 152 (supra) be a sutlicicnt reason to construe the provision~ beyond the purvww of their language.''"}}]}
{"document_id": "1975_3_601_606_EN", "year": 1975, "text": "( '> .I\n\nTHE DISTRICT COUNCIL, UNITED KHASI-JAINTIA HILLS,\n\nSHILLO~G AND ANR.\n\nI'.\n\nKA DREPSJLA LYNGDOH OF\n\nSVLLAI-U-LOR,\n\nMYLLIEM,\n\nMYLLIEM SIEMSHIP, UNITED KHASI-JA1NTJA HILLS AND\n\nORS.\n\nFebruary 2\\' 1975 [K. K. MHHEW, v. R. KRISHNA IYER A!\\D A. c. GUPTA, JJ.]\n\nCo11stir111ion of India, 1950, Schedule VJ, Paras 6 and 20 Scopeof-Whether l'illai;<' of Mall'kher is included within tile Sl1i/lo11g Municipality.\n\nTh~ Exccu111c Com111i11ce of the District Council, United KhasiJaintia Hills\n\ndircted thut no new construcllon or re-constr.u'ction of stalls should be under taken in Burn Bnznr. The respondents, who were. thus p1ohibitcd from construe\n\nting their shops !\\led the writ petitions in the High Court chnllenglng the direc:Uon.\n\nSchedule VI of th~ Constitution shciws thnt tho United Khusi Jalntia Hills District is a tribal area within the State of Megbalaya, The territories rom priseu:wi1hin this district include Bara Bazar area, In view of.para 6 o{ the Scbetlule which enumerates the powers of the District Council, the District.\n\nCol, ltlcil ha~ power to manage the Bara Bazar market and issue the impugned ord.ers.\n\nBut oara 20 of the Schedule states that if any part of the area com prise.<.! in tile district were included i~ the municipality of Shillong, before the district came into being the powers conferred on the District Council by para 6 of the Schedule would not be available to the Council in respect of that area.\n\nThe High Court found that the village of Mawkher which comprises Bara Baza'\". wns .a pmt of the muni:ipality of the Shillong on the basis of ( 1) a .. 1Jo!iflc.i-tion d'c1ted hnuary 16. 1934. (2) <:n extrnq from •he Demand and Bill\n\n'Reistr of the '.Shillong Municipality for the year 1957-58 and (3) the Khasi\n\nSiemship.1 (1\\pplication of Law.,) Order. 1949, and held that the District Council had no jtfrisdiction. adminis1rative or otherwise over Bara Bazar and quashed tl1e Impugned orders.\n\nAllowing the appeal to this Court,\n\nHELD : (I) The 1934 notification show> that what was ceded by the Siem of l\\1vlli\"m when he ceded Mawkher and other villages to the British Government was only the jurisdiction necessary for the municipal admi:1:st1 :1tion in nccordance with the Assam Municipal Act. 1923. and the Governor General in Council issued an order extending the 1923 Municipal Act to those Yill:igcs. The Order orovided that the villages were to be deemed as a municipality designated the Shillong (Administered Areas) Municipality.\n\nThus the villages were ceded for the specified purpose of municipal administration only and though the provisions ot the Municipal Act were made applicable to the ceded villages they were never included within the territorial jurisdiction of the Shillong municipality, but were deemed to he a distinct municipality-the Shillong (Administered Areas) Municipality. This shows that the villages were not intended to b' merged in the Shillong Municipaliiy though the officers of the municinalitv were to exercise similar powers and discharge like duties in the cecl:-d ar:o,,.:, Chapter II of the Municipal Act which empowered the provincial g<wernmcnt to include within a municinality any local area in its vicinity was not made :1:irlicable to the villages. There. is also no evidence that these territor'c; were •.uhs~uenlly merged in th,· Mu.nieirality of Shillong.\n\n[6D5F 60(1\",\"\\\n\n(2) Th' Demanc.1 and Bill Register of the Shillong municipality refers to Souih F, r; r Mawkher as a warJ of the Shillong Municipality.\n\nBut it does not mean :hnt Mawkher or South East Mawkher was mcluded in the territorial juris,!'c'.icn of the 1\\fHnici!lalitv. It onlv means that the District Council. instead of takin.g ur the administratior, allowed existing arrangements to continue in some places for some time.\n\n[6%B-C] 8-470 Sup. Cf/75\n\n(3) The Khasi Siem.ships (Application of Laws) Order, 1949 refen1 to .. Shillong Admini.stered Areas\" by which is meant 'so much of the areas foir the time being comprised within the municipality of Shillong' as forms part of the\n\nUnited Khasi Jaintia Hills District. and the lirst Schedule to the Order ddines the \"Shillong Administered Areas\" as comprising the areas covered by the Shillong (Administered Areas) Municipality which includes Mawkher. llut, in view of the notification dated January\" 16, 1934, and the absence of any provision effecting merger with the Shillong Municipality the expression 'comprised within the munidpahty of Shillong,' can only mean that part of the district in whkh :he officers of the Shillong municipality ,; ontinued to exercise powers and discharge duties as before. [606C-EJ\n\nCiv11 APPELLATE JURISDICTION : Civil Appeals Nos. 1475 & 1476 of 't 969.\n\nFrom the judgment and order dated the 4th Decemb2r, 1967 of\n\nthe sam & Nagaland High Court in Civil Rule Nos. 264 and 328 of c 1966.\n\nD. N. Mukheriee, for the appellant. .i. K. Sen 1md S. K. Nandy, for Respondent No. I.\n\nG, S. Chatterjee, for Respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J. The only question arising for decision m these two appeals, brought on certificates granted by the- Assam and Nagalnnd High Court, is whether the jurisdiction of the. District Council of the\n\nUnited K.hasi-Jaintia Hills, e.xtends to the area called .B\\ll'a Bazar in village Mawkhar in Shillong.\n\nThe question arises in this way.\n\nThe first respondent in each of these appeals had a shop in Bara Bazar, which is a well-known market area,,, and both these shops were destroyed by fire.\n\nIn December 1964 the Siem of Mylliem permitted Ka Tiewmon Kharkongar, the first riespondlent in Civil Appeal No,. 1476 of 1969, to com; truct on the cd site a shop similar to . the one she had which was gutted by fire.\n\nA similar permission was given in May 1965 to Ka Drepsile Lyngdob, the first respondent in Civil Appeal No. 1475 of 1969. On July 19, 1965, however, the Siem of Mylliem by a written order asked respm1dent Ka Tiewmon K.harkongar not to proceed with the constructiion of the shop; it was stated in the order that the Executive Committee of the District Council, United Khasi-Jaintia Hills, had directed that no ruw construct.ion, reconstruction or renovation of stalls should be undertaken in Bara Bazar unless approved by the Executive Committee and that all constructions in progress should be stayed. Respond4:nt Ka Drepsila Lyngdoh also received a similar communication from the Siem of Mylliem on May 16, 1966. Both these -respondents filed writ petitions in the Assam and Nagaland High Court questioning the autho1rity of the Executive Committee of the District Cow1- , cil to make any <>rder in respect of the Bara Bazar area which thf~Y contended was outside the District . Council's jurisdiction. The High COurt disposed of' the two writ petitions by a common Judgment. TI1e High, Court found that the District Council had no jurisdiction, admi- . nistra1ive or otherwise, over the area in question, and quashed the\n\n.f'\n\norders by which the respondents were prohibited from con$tructing their shops in that area. From the decision of the High Court, the District Council, United Khasi~Jaintia Hills, Shillong, and its Executive Committee have 'preferred the instant appeals.\n\nThe United Khasi-Jaintia Hills District is a tribal arra within the State of Meghalaya as will appear from Part II, item I of the Table appended to paragraph 20 of the Sixth Schedu!e of the Constitution.\n\nArticle 244(2) of the Constitution lays down that the provisions . of the Sixth Schedule shall apply to the administration of these tribal areas.\n\nParagraph 1 of the Sixth Schedule provides inter alia that the tribal areas in each item of Parts I and Il and in Part III of the Table appended to paragraph 20 of this Schedule .shall be ari'. autonomous district. It is provided in paragraph 2 of the Schedule that each autonomous district shall have a District Council which would be a body corporate, vested with the power to administer the District. Paragraph 6 of the Schedule which enumerates some of the powers of the District Council states inter alia that the District Council for an autonomous , district may establish, construct, or manage primary schools, dispensa ries, markets, cattle pounds, ferries, fisheries, roads, road transport and water-ways in the district. There is no dispute that the territories comprised within the United Khasi-Jaintia Hills District include the Bara Bazar area.\n\nThere could be also no dispute, in view of paragraph 6 of the Schedule, as to the power of the District Council to manage the Bara Bazar Market and to issue for that purpose the orders impugned in these two cases, if the provisions of the Sixth Schedule to which we have so far referred were the only relevant provisions for consideration.\n\nHowever, paragraph 20 of the Schedule has a proviso which states that : \"for the purposes of clauses (e) and (0 of subparagraph (1) of paragraph 3, paragraph 4, paragraph 5, paragraph 6, sub-paragraph (2), clauses (a), (b) and (d) of sub-paragraph 3 and sub-paragraph (4) of paragraph 8 and clause (d) of sub-paragraph\n\n(2) of paragraph 1.0 of this Schedule, no part of the area comprised within the municipality of Shillong shall be deemed to be within the United Khasi-J}l.intia Hills District.\" Therefore, if any part of the area comprised in the United Khasi-Jaintia Hills District were included in the municipality of Shillong before the said District came into being, the powers conferred on the District Council, inter alia. by paragraph 6 of the Sixth Schedule woajd not be available to the Council in rest of that area. The question then comes to this, did the municipality of Shillong include within its limits the Bara Bazar area ?\n\nThe High Court has found that village Mawkhar which comprises Bara Bazar was a part of the municipality of Shillong.\n\nThe Judgment .of the High Court records the fact that Mawkhar was originally part of the Kingdom of the Siem of Mylliem.\n\nThe Judgment also refers to a notification dated the 16th January, 1934 showing that Mawkhar and certain other villages were ceded to the British Government by the Siem of Mylliem. The relevant portion of the notification is as follows : ·\n\n\"No. 44-1, dated New Delhi, the 16th January 1934 . . Whereas the Siem of Mylliem in the Khasi and Jaintia Hills\n\nhas ceded to the British Government' the jurisdiction neccs-\n\nA sary for the municipal administration in accordance with . the Assam Municipal Act, 1923, of the villages of l'-1awkhar,\n\nLaitumkhrah, Mission Compound and Jaiaw South-East\n\n~.lawkhar anc.l Garikhana, Mawprem anc.l Jhalupra, a Laban,.\n\n~ ; i:nparing cun1 i\\1ad.:in Laban,. Malki anti Haang Umkhra. situate within the hounc.laries described in the Schedule annexed hereto. 'Ubjcct to the maintenance of all other his\n\nright\" antl powers aS Sk:in of Myllicm thcn:in and with th~'\n\n-rli:.-~-at; on that the rivers Un1shipi and U111khra, so far as\n\nthey arc within the. aloresaic.l villages, shall remain the propmy or the Myllicm State :- .\n\n In exercise of this jurisdiction and of. the powers con;· !erred by the Indian (Foreign Jurisdiction) Order in c.'oun- .:il. I 902, and of all other powers cnablin~ hi111 in. that b~·\n\nhair. and in supcrscssion or the Notification or the Government of India .in the Foreign Department No: 31634'-D .. <.lated the 17th September 1913, and of all notifications amending the <1ame the Governor General in Council is pleased to dircc, t as follows :-\n\n1. All the provisions of the Assam Municipal. Act, 1923. tAssarn Act I of 1923), as hcrcinbdore or hcrernafter amended and as in force for'thc ti1nc being i1 the Municipality. of Shillong. and :ill notifications. orders. schemes,\n\nrUls, forn1o;; or bye-la\\VS 111adc or hereafter to be mad!.! for\n\nthe 'aid Municipality shall subject to the exceptions hereinafter specified and unless otherwise declared by the Govern- E\n\nh~·; nt \\)f r\\ssari1, be in force ln the said village in so far as the\n\nsam~ may he applicab!e thereto.\n\nProvitbl that Chapter II ai1d sccti, ms 9. 51. 53. 59 (bl, 59(g),•65. 78. 217 and 218 of the saiJ Act shall not apply t\" the said villages and thut clau'c (bl of suhscctlon (;) of <ection 55 or the said Act shall not apply to the Umshirpi and F\n\nll;1:.hr:1 rivers o far a~ they arc within the said villages.\n\n2. For the purposes of the application of the said provisio11s. Notifications9 orders~ s.chcn1cs, rules for1ns, and bye- IJ\\v-..\n\nI\") rcrerences. to the Local Government shall be read as\n\nrcfcrcncct? th~.! Govern1ncnt of Asam.\n\n(h) the said vilbgcs shall be deemed to be a municipolity\n\ndcsi2natctl the Shillong (Administered Arca) Municipality. anit C'!cry officer or authority. for the time being ::i.ppointcd br constituted in accordanc.: \\Vith_ the Assam Municipal Act, 1923 as amended. to exercise powers or discharge duties within the Municipality of Shillong. shall exercise tho like \"powers and discharge the like duties in accordance with the said\n\nAct within the Shillong (Administered Area) Municipalty and shall e dee!11ed to have been duly appomted or constituted m accordance with the said Act.\n\n(c) All sums received by the Municipal Board of the\n\nMuniciplity . of Shillong and all fioos paid or levied\n\nm the said villages shall be ;:redited to the municipal fund of the Municipality of Shillong.\n\n1t would appear from this notification that what was ceded to the British Government was only \"the jurisdiction necessary for the muni~ cipal. administration in accordance with the Assam Municipal Acf\n\n1923\" of certain villages including Mawkhar and the Governor Gene-'. ral in Council was pleased to issue an order extending to the said\n\nvillages the provisions of the Assam Municipal Act, 1923 subject to certain exceptions.\n\nThe order also provide<.! that for the purposes of the application of the sai~ Act, and the notifications, orders, schemes, rules, forms and bye-Jaws made for the Shillong Municipality which were also made applicable, these villages were to b.:: deemed as a municipality designated the Shillong (Administered Areas) Municipality.\n\nFrom this notification dated January 16, 1934, and an extract from the Demand and Bill Register of the Shillong Municipality for the year 1957-58, annexed to one of the writ pcti•ion~. wh:ch refers to Soutb- East Mawkhar as a Ward of the Shillong Municipality, the High Court held that Bara Bazar was part of the Shillong Municipal area.\n\nThe High Court also relied on the Khasi Siemships (Application of Laws) Order, 1949. This order refers for its purpose to \"Shillong Administered Areas\" by which is meant \"so much of the areas for the time being comprised within the Municipality of Shillong as forms part of the United Khasi-Jaintia Hills District\". The first Schedule to the order defines the \"Shillong Adiministered Areas\" as comprising the areas covered by the Shillong (Administered Areas) Municipality, which includes Mawkhar.\n\nWe do not think that the material on which the High Court rdicd )Ustifies the finding that village Mawkh1~ which includes Bara Bazar was part of the Shillong Municipality.\n\nThe notification dated the 16th January, 1934 makes it clear beyond doubt that the Siem of Mylliem ceded the villages for the specified purpose of municipal administration only.\n\nIt seems to us also clear that though the provisions of the Assam Municipal Act, 1923 ..,_etc made applicable to the ceded villages, the villages were never included within the territorial jufr;- diction of the Shillong Municipality.\n\nThe notification itself directed that these villages were to be deemed as a distinct municipality designated the Shillong (Administered Areas) Municipality which shows that they were not intende(, f to be merged in the Municipality of Shillong though the officers and authorities exercising powers or dischargin!!, duties within the Municipality of Shillong were to exercise similar 'powers and discharge like duties in the ceded areas according to a direction contained in the notification.\n\nChapter II of the Assam Municipal Act, 1923 which. as it stood at the da!c of the notification,\n\nempowered the provincial government to include within a municipality any local area in the vicinity of the same, was not made applicable to the:se villages. There is also no evidence that these territories were subsequently merged in the Municipality of Shillong. After the commencement of the Constitution of India, as paragraph 19 of the Sixth Schedule providc5, the administr2tion of the territories comprised in the United Khasi-Jaintia Hills District vested in the Governor until the District Council was constituted in June 1952. It is' not clear from the material on record whether the District Council took up the entire burden of administration throughout the territories from the beginning or aliowcd the existing arrangements to continu~ at some places for some time.\n\nTh(: extract from the Bill and Demand Register of the Shillong Municipality for the year 1957-5~, referred to in the Judgment of the High Court, seems to suggest th~ second possibility.\n\nEven if this were so., it does not mean that Mawkhar or South-East Mawkhar was inclucled in the t<rritorial jurisdiction of the Shillong Municipality. In viw of the notification dated the 16th January, 1934 which preserves the distinct entity of the ceded villages and in the absence of a:iy provision effocting a merger of these territories in the Municipality of Shillong, reference in the Khasi Siemships (Application of Laws) Order, 1949 to any part of the Khasi-Jaintia Hills District as \"comprised within the Municipality of Shillong\" must be read to mean that part of the District in which the officers and the authorities of the Shillong Municipality continued to exercise powers and discharge duties as before.\n\nIn our opinion, the jurisdiction of the District Council of the Khasi-Jaintia Hills extends to the Bara Bazar area and as such the impugned orders issued at the instance of the appellants to the first respondent in each of these two appeals re6training them from constructing shops in the aforesaid area are not invalid.\n\nfn the result, the appcais are allowed; the Judgment and orders appealed from are set aside and the writ petitions are dismissed. Considering the circumstances or the case we make no order as to costs.\n\nV.P.S Appeals allowed~", "total_entities": 52, "entities": [{"text": "I\n\nTHE DISTRICT COUNCIL, UNITED KHASI-JAINTIA HILLS,\n\nSHILLO~G AND ANR", "label": "PETITIONER", "start_char": 6, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "THE DISTRICT COUNCIL, UNITED KHASI-JAINTIA HILLS, SHILLONG AND ANR", "offset_not_found": false}}, {"text": "KA DREPSJLA LYNGDOH OF\n\nSVLLAI-U-LOR,\n\nMYLLIEM,\n\nMYLLIEM SIEMSHIP, UNITED KHASI-JA1NTJA HILLS AND", "label": "RESPONDENT", "start_char": 84, "end_char": 181, "source": "metadata", "metadata": {"canonical_name": "KA DREPSJLA LYNGDOH OF SVLLAI-U-LOR, MYLLIEM, MYLLIEM SIEMSHIP, UNITED KHASI-JA1NTJA HILLS AND ORS", "offset_not_found": false}}, {"text": "v. R. KRISHNA IYER A!\\D A. c. GUPTA, JJ.", "label": "JUDGE", "start_char": 221, "end_char": 261, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Schedule V", "label": "PROVISION", "start_char": 295, "end_char": 305, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule VI", "label": "PROVISION", "start_char": 738, "end_char": 749, "source": "regex", "metadata": {"statute": null}}, {"text": "Mawkher", "label": "GPE", "start_char": 1487, "end_char": 1494, "source": "ner", "metadata": {"in_sentence": "The High Court found that the village of Mawkher which comprises Bara Baza'\"."}}, {"text": "Chapter II of the Municipal Act", "label": "STATUTE", "start_char": 3064, "end_char": 3095, "source": "regex", "metadata": {}}, {"text": "Shillong Municipality", "label": "GPE", "start_char": 3485, "end_char": 3506, "source": "ner", "metadata": {"in_sentence": "[6D5F 60(1\",\"\\\n\n(2) Th' Demanc.1 and Bill Register of the Shillong municipality refers to Souih F, r; r Mawkher as a warJ of the Shillong Municipality."}}, {"text": "Khasi Siem.ships (Application of Laws) Order, 1949", "label": "RESPONDENT", "start_char": 3825, "end_char": 3875, "source": "ner", "metadata": {"in_sentence": "Cf/75\n\n(3) The Khasi Siem.ships (Application of Laws) Order, 1949 refen1 to .. Shillong Admini.stered Areas\" by which is meant 'so much of the areas foir the time being comprised within the municipality of Shillong' as forms part of the\n\nUnited Khasi Jaintia Hills District."}}, {"text": "Shillong", "label": "GPE", "start_char": 4459, "end_char": 4467, "source": "ner", "metadata": {"in_sentence": "llut, in view of the notification dated January\" 16, 1934, and the absence of any provision effecting merger with the Shillong Municipality the expression 'comprised within the munidpahty of Shillong,' can only mean that part of the district in whkh :he officers of the Shillong municipality ,; ontinued to exercise powers and discharge duties as before. ["}}, {"text": "Shillong municipality", "label": "ORG", "start_char": 4538, "end_char": 4559, "source": "ner", "metadata": {"in_sentence": "llut, in view of the notification dated January\" 16, 1934, and the absence of any provision effecting merger with the Shillong Municipality the expression 'comprised within the munidpahty of Shillong,' can only mean that part of the district in whkh :he officers of the Shillong municipality ,; ontinued to exercise powers and discharge duties as before. ["}}, {"text": "Nagaland High Court in Civil Rule", "label": "STATUTE", "start_char": 4778, "end_char": 4811, "source": "regex", "metadata": {}}, {"text": "D. N. Mukheriee", "label": "LAWYER", "start_char": 4841, "end_char": 4856, "source": "ner", "metadata": {"in_sentence": "D. N. Mukheriee, for the appellant."}}, {"text": "K. Sen", "label": "LAWYER", "start_char": 4881, "end_char": 4887, "source": "ner", "metadata": {"in_sentence": "K. Sen 1md S. K. Nandy, for Respondent No."}}, {"text": "S. K. Nandy", "label": "LAWYER", "start_char": 4892, "end_char": 4903, "source": "ner", "metadata": {"in_sentence": "K. Sen 1md S. K. Nandy, for Respondent No."}}, {"text": "S. Chatterjee", "label": "LAWYER", "start_char": 4931, "end_char": 4944, "source": "ner", "metadata": {"in_sentence": "I.\n\nG, S. Chatterjee, for Respondent No."}}, {"text": "GUPTA", "label": "JUDGE", "start_char": 5013, "end_char": 5018, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J. The only question arising for decision m these two appeals, brought on certificates granted by the- Assam and Nagalnnd High Court, is whether the jurisdiction of the."}}, {"text": "Ka Tiewmon Kharkongar", "label": "OTHER_PERSON", "start_char": 5555, "end_char": 5576, "source": "ner", "metadata": {"in_sentence": "In December 1964 the Siem of Mylliem permitted Ka Tiewmon Kharkongar, the first riespondlent in Civil Appeal No,.", "canonical_name": "Ka Tiewmon K.harkongar"}}, {"text": "Ka Drepsile Lyngdob", "label": "ORG", "start_char": 5774, "end_char": 5793, "source": "ner", "metadata": {"in_sentence": "A similar permission was given in May 1965 to Ka Drepsile Lyngdob, the first respondent in Civil Appeal No."}}, {"text": "July 19, 1965", "label": "DATE", "start_char": 5853, "end_char": 5866, "source": "ner", "metadata": {"in_sentence": "On July 19, 1965, however, the Siem of Mylliem by a written order asked respm1dent Ka Tiewmon K.harkongar not to proceed with the constructiion of the shop; it was stated in the order that the Executive Committee of the District Council, United Khasi-Jaintia Hills, had directed that no ruw construct.ion, reconstruction or renovation of stalls should be undertaken in Bara Bazar unless approved by the Executive Committee and that all constructions in progress should be stayed."}}, {"text": "Mylliem", "label": "OTHER_PERSON", "start_char": 5889, "end_char": 5896, "source": "ner", "metadata": {"in_sentence": "On July 19, 1965, however, the Siem of Mylliem by a written order asked respm1dent Ka Tiewmon K.harkongar not to proceed with the constructiion of the shop; it was stated in the order that the Executive Committee of the District Council, United Khasi-Jaintia Hills, had directed that no ruw construct.ion, reconstruction or renovation of stalls should be undertaken in Bara Bazar unless approved by the Executive Committee and that all constructions in progress should be stayed."}}, {"text": "Ka Tiewmon K.harkongar", "label": "OTHER_PERSON", "start_char": 5933, "end_char": 5955, "source": "ner", "metadata": {"in_sentence": "On July 19, 1965, however, the Siem of Mylliem by a written order asked respm1dent Ka Tiewmon K.harkongar not to proceed with the constructiion of the shop; it was stated in the order that the Executive Committee of the District Council, United Khasi-Jaintia Hills, had directed that no ruw construct.ion, reconstruction or renovation of stalls should be undertaken in Bara Bazar unless approved by the Executive Committee and that all constructions in progress should be stayed.", "canonical_name": "Ka Tiewmon K.harkongar"}}, {"text": "Ka Drepsila Lyngdoh", "label": "RESPONDENT", "start_char": 6342, "end_char": 6361, "source": "ner", "metadata": {"in_sentence": "Respond4:nt Ka Drepsila Lyngdoh also received a similar communication from the Siem of Mylliem on May 16, 1966."}}, {"text": "May 16, 1966", "label": "DATE", "start_char": 6428, "end_char": 6440, "source": "ner", "metadata": {"in_sentence": "Respond4:nt Ka Drepsila Lyngdoh also received a similar communication from the Siem of Mylliem on May 16, 1966."}}, {"text": "Assam and Nagaland High Court", "label": "COURT", "start_char": 6494, "end_char": 6523, "source": "ner", "metadata": {"in_sentence": "Both these -respondents filed writ petitions in the Assam and Nagaland High Court questioning the autho1rity of the Executive Committee of the District Cow1- , cil to make any <>rder in respect of the Bara Bazar area which thf~Y contended was outside the District ."}}, {"text": "District Council, United Khasi~Jaintia Hills", "label": "ORG", "start_char": 7090, "end_char": 7134, "source": "ner", "metadata": {"in_sentence": "From the decision of the High Court, the District Council, United Khasi~Jaintia Hills, Shillong, and its Executive Committee have 'preferred the instant appeals."}}, {"text": "United Khasi-Jaintia Hills District", "label": "ORG", "start_char": 7216, "end_char": 7251, "source": "ner", "metadata": {"in_sentence": "The United Khasi-Jaintia Hills District is a tribal arra within the State of Meghalaya as will appear from Part II, item I of the Table appended to paragraph 20 of the Sixth Schedu!e of the Constitution."}}, {"text": "Meghalaya", "label": "GPE", "start_char": 7289, "end_char": 7298, "source": "ner", "metadata": {"in_sentence": "The United Khasi-Jaintia Hills District is a tribal arra within the State of Meghalaya as will appear from Part II, item I of the Table appended to paragraph 20 of the Sixth Schedu!e of the Constitution."}}, {"text": "Article 244(2)", "label": "PROVISION", "start_char": 7417, "end_char": 7431, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 7491, "end_char": 7505, "source": "regex", "metadata": {"statute": null}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 7583, "end_char": 7597, "source": "regex", "metadata": {"statute": null}}, {"text": "United Khasi-Jaintia Hills District", "label": "GPE", "start_char": 8357, "end_char": 8392, "source": "ner", "metadata": {"in_sentence": "There is no dispute that the territories comprised within the United Khasi-Jaintia Hills District include the Bara Bazar area."}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 8662, "end_char": 8676, "source": "regex", "metadata": {"statute": null}}, {"text": "United Khasi-J}l.intia Hills District", "label": "ORG", "start_char": 9222, "end_char": 9259, "source": "ner", "metadata": {"in_sentence": "However, paragraph 20 of the Schedule has a proviso which states that : \"for the purposes of clauses (e) and (0 of subparagraph (1) of paragraph 3, paragraph 4, paragraph 5, paragraph 6, sub-paragraph (2), clauses (a), (b) and (d) of sub-paragraph 3 and sub-paragraph (4) of paragraph 8 and clause (d) of sub-paragraph\n\n(2) of paragraph 1.0 of this Schedule, no part of the area comprised within the municipality of Shillong shall be deemed to be within the United Khasi-J}l.intia Hills District.\""}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 9518, "end_char": 9532, "source": "regex", "metadata": {"statute": null}}, {"text": "Bara Bazar", "label": "GPE", "start_char": 9689, "end_char": 9699, "source": "ner", "metadata": {"in_sentence": "The question then comes to this, did the municipality of Shillong include within its limits the Bara Bazar area ?"}}, {"text": "Mawkhar", "label": "GPE", "start_char": 9746, "end_char": 9753, "source": "ner", "metadata": {"in_sentence": "The High Court has found that village Mawkhar which comprises Bara Bazar was a part of the municipality of Shillong."}}, {"text": "16th January, 1934", "label": "DATE", "start_char": 10001, "end_char": 10019, "source": "ner", "metadata": {"in_sentence": "The Judgment also refers to a notification dated the 16th January, 1934 showing that Mawkhar and certain other villages were ceded to the British Government by the Siem of Mylliem."}}, {"text": "Khasi", "label": "GPE", "start_char": 10278, "end_char": 10283, "source": "ner", "metadata": {"in_sentence": "Whereas the Siem of Mylliem in the Khasi and Jaintia Hills\n\nhas ceded to the British Government' the jurisdiction neccs-\n\nA sary for the municipal administration in accordance with ."}}, {"text": "Assam Municipal Act, 1923", "label": "STATUTE", "start_char": 10430, "end_char": 10455, "source": "regex", "metadata": {}}, {"text": "Assarn Act I of 1923", "label": "STATUTE", "start_char": 11513, "end_char": 11533, "source": "regex", "metadata": {}}, {"text": "Assam Municipal Act, 1923", "label": "STATUTE", "start_char": 12743, "end_char": 12768, "source": "regex", "metadata": {}}, {"text": "Mawkhar", "label": "PETITIONER", "start_char": 13542, "end_char": 13549, "source": "ner", "metadata": {"in_sentence": "administration in accordance with the Assam Municipal Acf\n\n1923\" of certain villages including Mawkhar and the Governor Gene-'.", "canonical_name": "Mawkhar"}}, {"text": "Council was pleased to issue an order extending to the said", "label": "STATUTE", "start_char": 13582, "end_char": 13641, "source": "regex", "metadata": {}}, {"text": "Mylliem", "label": "GPE", "start_char": 15165, "end_char": 15172, "source": "ner", "metadata": {"in_sentence": "The notification dated the 16th January, 1934 makes it clear beyond doubt that the Siem of Mylliem ceded the villages for the specified purpose of municipal administration only."}}, {"text": "seems to us also clear that though the provisions of the Assam Municipal Act, 1923", "label": "STATUTE", "start_char": 15256, "end_char": 15338, "source": "regex", "metadata": {}}, {"text": "Chapter II of the Assam Municipal Act, 1923", "label": "STATUTE", "start_char": 15981, "end_char": 16024, "source": "regex", "metadata": {}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 16372, "end_char": 16393, "source": "regex", "metadata": {}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 16418, "end_char": 16432, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Mawkhar", "label": "PETITIONER", "start_char": 17090, "end_char": 17097, "source": "ner", "metadata": {"in_sentence": "it does not mean that Mawkhar or South-East Mawkhar was inclucled in the t<rritorial jurisdiction of the Shillong Municipality.", "canonical_name": "Mawkhar"}}, {"text": "Shillong Municipality", "label": "ORG", "start_char": 17682, "end_char": 17703, "source": "ner", "metadata": {"in_sentence": "In viw of the notification dated the 16th January, 1934 which preserves the distinct entity of the ceded villages and in the absence of a:iy provision effocting a merger of these territories in the Municipality of Shillong, reference in the Khasi Siemships (Application of Laws) Order, 1949 to any part of the Khasi-Jaintia Hills District as \"comprised within the Municipality of Shillong\" must be read to mean that part of the District in which the officers and the authorities of the Shillong Municipality continued to exercise powers and discharge duties as before."}}, {"text": "District Council of the Khasi-Jaintia Hills", "label": "ORG", "start_char": 17806, "end_char": 17849, "source": "ner", "metadata": {"in_sentence": "In our opinion, the jurisdiction of the District Council of the Khasi-Jaintia Hills extends to the Bara Bazar area and as such the impugned orders issued at the instance of the appellants to the first respondent in each of these two appeals re6training them from constructing shops in the aforesaid area are not invalid."}}]}
{"document_id": "1975_3_607_615_EN", "year": 1975, "text": "M. K. P APIAH & SONS\n\nTHE EXCISE COMMISSIONER & ANR.\n\nFebruary 20, 1975\n\n[K. K. MATHEW, V. R. KIUSHN.\\ IYER AND P. K. GOSWAMI, JJ.J\n\n.Mvsore Excise Act, 1965, Sections 16, 22 and 23 read with Mysore Excise (D1.ml/ery and Wrehouse) Rules, 1967 and with Mysore Excise (Excise Duties) Rules, 1968-Excise duty. levv of-Removal of arrack fio111 Govemment 1v,1reho11scs after the purchase of the same, ij attracts liability to pay excise duty.\n\nMvsore xcise Act, 1965, Secs. 22 and 71- Dc/egotion of power to fi.t rates o.f excise duty I~ G?vemment by making rules-Legislarure, if has abdicated Its essen11a/ leu1s/at1re functwn-Rule-making power, whether provides the necessary check.\n\nKarna/aka Sales Tax Act. 1957. Secs. 2, 5' and 19-Levy uf sales tax upon sale of arrack mnde by Government tn licensces-lmPositi011 of liability to sales tax, if covered by Entry 54, List fl, Schedule Vil of the Constitution.\n\n. 'fh~ ppellan~. an excie contractor secured the privilege of vending arrack m retail m certain taluks in the State of Karnataka tor a period of 18 months beginning from 28-12-1967 and ending on 30-6-69.\n\nHe purchased arrack from the Government at a tirice of 17 paise per litre and the Government collected besides the sale price of arrack, excise duty, health cess and education cess.\n\nThti Government also collected sales tax on the sale price of arrack, on excise duty, on health cess and on education cess tor the period from 28-12-1967 to 31-1-1968 and made similar demands for the month of February, 1968 also.· The app6llant and other excise contractors filed writ petitions in the High Court at Karnataka challenging the validity of the levy and collection of exci'e Cluty, educatio11 cess. health ctss and sales tax. The High Court accepted some of the contentions of the appellant, granted him reliefs on that basis but rejected the other prayers.\n\nThe appellant has filed these appeals on the basis of certificates granted by the High Court against the order. ft was contended for the appellant (i) that no excise duty can be levied on a licensee in respect of the quantity of arrack purchased by him from Govern ment depots, (ii) that the. power to fix the rate of excise duty conferred under s. 22 of the Mvsore Excise Act of 1965 on the Government was bad for the reason that it was an abdication by the state legislature of its essential legislative\n\nftnction and (iii) that no sales tax could be levied on the price for sale of arrack since s. 19 of the Mysore Sales Tax Act, 19 57 under which the tax was levied was beyond the legislative competence of the state leislaturc.\n\nRejecting the contentions and dismissing the appeals, HELD : (i) It is clear from the return filed before the High Court that the Government ourchases arrack from the distillers and keeps it in the warehouses eatablished or licensed under s. 16 and that any removal of arrack after the purchase of the same will attract the liability to pay excise duty. Section 23 provides that excise duty shall be levied on the excisable article issued from a warehouse also. It cannot be said that a warehouse established or licensed under S. 16(e) is not warehouse within the meaning of that expression in s. 23.\n\n[609G:610A]\n\n(ii) The High Court held that the preamble of the At wuld sen:e as a guidance to fix the rates of excise duty.\n\nIt cannot be said with certainty that the preamble of the Act gives any guidance for fixing the rate of excise duty.\n\nBut that does not mean that the legislature here has no control over the delegate.\n\nIn this case, s. 71 of the Act whih provides .for the rule-makine power imposes the necessary check upon the wide power g1ven to the Government to fix the rate. The laying of rules before the legislature provides control ovr delegated legislation. Again the legislature may also retain its control over_ 111 delegate by exercising its power of repeal The power to fix the rate of excise\n\nduty conferred on the Government by s. 22 is valid. [610E-F; 614EPl\n\nCorporatio11 of C11lq11ta & Anr. v. Liberty Ci11e111a, [1965] 2. S.C.R. 477, lla1wrsi D1is v. Slate of Madhya Pradesh, [1959] S.C.R. 427, Municipal Board, l1ap11r v. Ragli11rn1dra Kripal, [ 196n] l S.C.R. 1950, Deri Dmi Gopa/ K, is/ia11\n\nv. S/'ale of P11njab, [1967] 3 S.C.R. 557, Municipal Corporatio11 of Delhi v.\n\n\n(iii) Section 19 of tbc. Kar.11:1taka Sulcs Tax Act, 1957. makes it clear that notwithstanring anything containe, i in this Act of 1957, the Government :; hall in respect 01 any sale of goods effected by it be entitled to collect by way of tax ; my amount which u rci;:istcrcd dcakr e!Tecting such sale would have been entitled to collect bv way of tnx under the Act. The section is clear that the (]ovcrnmcnt could collect th~ tax on the sule made by it as if it were n rcgis tcrcd dealer, notwithstunding unything contained in s. 2 or s. S.\n\nThe i; ection ll, clf creates a ri11ht in the State to recover and an oblintion on the purchaser from the State to iiny the umount.\n\nAny imposition of liability or obligu:tion in respect of sale or purchase of goods will lie covered by Entry S4 of Lint II of tbe Seventh Schedule of the C<institution. Section 19 i\" therefore, not 11/tru l'ires the powers of the legislature. [615ACJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1883 to\n\n1886 of 1969. o\n\nFrom the judgment & Order dated the 12th July, 1968 of ihe Mysore High Court in W.P. Nos. 949, 955, 956 and 958 of 1968.\n\nK. Srinivasan and Vineet Kumar, for the appellants.\n\nIi. B. Datar (ln C.A. No. 1883/69) and M. Veerappa, for thl' respcmdents.\n\nThe Judgment of the Court was delivered by\n\nMATHEW, J.\n\nThe appellant was an excise contractor.\n\nHe secured the privilege of vending arrack in retail in certain taluks in the State of Karnataka for a period of 18 months beginning from. 28-12-1967 and ending on 30-6-1969.\n\nHe purchased arrack from the Government at a price of 17 paise per litre and the Government collected besides the sale price of arrack, excise duty, health cess and education cess.\n\nThe Government also collected sales tax on the sale price of arrack, on excise duty, on health cess and on education cess for the period from 28-12-1967 to 31-1-1968 and made similar demands for the month of February, 1968 also.\n\nThe appellant and other excise contractors filed writ petitions in the High Court of Karnatak:a cballenging the validity of the levy and collection of excise duty, education cess, health cess and sales tax.\n\nThe High Court accepted some of the conte:ntions of the appellant, granted him reliefs on that basis but rejected the other prayers.\n\nThe appellant has filed these appeals or the basis of certificates granted by the High Court against the order.\n\nThe contentions raised by counsel for the appellant before this Court were : that no excise duty can be levied on J licensee in respi::ct of the quantity of arrack purchased by him from Government depots, that the power to fix the rate of excise duty conferred under s. 22 of the Mvsore Excise Act of 1965 on the Government was bad for the\n\nrca?on .that it w.as an abdication by the state lcgilaturc of its essential lcgislat1ve function and that no 8ales tax could be levied on the price for sale of arrack since s. 19 of the Mysore Sales Tax Act 1957 under whi1=h the tax was levied was beyond the legislative comptcncc of the state legislature.\n\nSection 22 of the Mysore Excise Act, 1965 (hereinafter rdcrred to as 'the Act') provides for levy of excise duty at such rate or rates as the government may prescribe on excisable articles manufactured or produced in the State under any licence 'or permit granted under the Act.\n\nSection 23 of the Act deals with the method of levying excise duties.\n\nThe first contention of the appellant was that sections I 6, 22 and 23 of the Act read with Mysore Excise (Distillery and Warehouse) Rules, 1967 and with Mysore Excise (Excise Duties) Rules, 1968. enables levy of excise duty only when arrack is issued from a distillery or warehouse or other place of storage established or licensed under the Act and since the government depot from which he purchased arrack. does not come under the above category, no excise duty can be levied.\n\nThe High Court found that though sections 22 and 23 o~ t~1e Act and Rule 2 of the Mysore Excise (Excise Duties) Rules, 1968, do not expressly state that excise duty levied at the stage of issue of liquor from the government depot should be collected from the issuer or from the person to whom it is issued, it is obvious that excise duty . cannot be collected from the State Government which issues liquor from its depots and that the only person from whom it can be collected is the licensee, to whom the State Government issues liquor from its depots.\n\nThe material portion of s. 16 of the Act provides that the Excise Commissioner may, with the previous sanction of the State Government, establish or license a warehouse wherein intoxicants may be deposited and kept without payment of duty and that without the sanction of the State Govcrnmc;;~ no i111oxicant shall be removed from any distillery, brewery, warehouse or other place of storage established or licensed under the Act unless the duty, if any imposed under the Act has been paid or a bond has been executed for tl, le payment thereof.\n\nIt is clear from the return filed before the High Court that thl' Government purchase arrack from the distillers and keeps it in the warehouse established or licensed under s. 16 and that any removal of arrack after the purchase of the same will attract theliability to pay excise duty shall be levied on the excisable article issued from a ware Excise Commissioner who is competent to establish or license a warehouse wherein intoxicants may be deposited and kept under clause ( e) ot s. 16 and therefore it is not a warehouse established or licensed b\"· the State Government. -\n\nWe see no force in this contention. Section 23 provides that excise duty shall be levied on ihe excisable article issued from a warehouse also.\n\nWe sec no reason to think that a warehouse established 1.1r licensed under s. 16 ( e) is not warehouse within tbe meaning: of that exprll$Sion in s. 23,\n\n!'he second contention raised by the appellant was that s. 22 of the Act provides for delegation of the power to fix the rates bf excise duty co the Government by making rules and since no guidance has been furnished to the government by the Act for fixing the rate there was abdication of essential legislative function by the legislature and therefor, e the section is bad.\n\n'fhe High Court after referring to th..: preamble of the Act said that it was the policy of the Act both to raise revenue and to discourage con:iUmption of liquor by making the price -0f liauor s.uffic1e11tly high, and that that would serve as a guidance to fix the rates of excise duty, that the rates fixed will be such as would keep the balance between these somewhat conflicting objects so as to serve the purpose of each. The Court further said that if the rate of excise duty is too low, not 'only will the revenue fom excise duties suffer but also there will be increase in the consumption of liquor; but if the rate of excise duty on liquor is too high, it is likely to encourage the production and consumption of iJlicit liquor and consequently the control and regulation of liquor as well as the revenue from excise duty may be affected advers1ly. The Court therefore held that the need to arrive at such rates of: excise duty as will Sl\"rve the twin objects of the policy underlying the Act operates as guidance for determination of the rates of e:xcise duty.\n\nWe are not certain whether the preamble of the Act gives any guidance tor fixing the rate of excise duty. But that does not mean that the legislature here has no control over the delegate. The le:gislative \"nntrol over delegated legislation may take many forms.\n\nIn Corporation of Calcutta & A.nr. v. Liberty Cinema(I), the validity of s. 548(2) of the Calcutta Municipal Act, 1951, which empowered the Corporation to levy fees \"at such rates as may from time to time be fixed by the Corporation\" was challenged on the ground of\n\nexasive delegation as it provided no guidance for the fixation,. of the amount. The majority upheld the provision relying on the decision in Banarsi Das v. State of Madhya Pradesh(2) holding that the fixation of rates of tax not being an essential legislative function, could be validly delegated to a non-legislative body. but observed that when it was Jeft to such a body, the legislature must provide guidance for such fixation.\n\nThe Court found the guidance in the monetary needs of the Corporation for carrying out the functions entrnstl'-d to it under the Act. .\n\nIn Municipal Board, Hapur v. Raghuvendra Kripal(3 ) the validity of the U; P. Municipalities Act, 1916, was involved. The Act had empowered the municipalities to fix the rate of tax and after having enurnetated the kinds of taxes to be levied, prescribed an elaborate\n\n(ll [l965J 2, S.C.R. 477.\n\n(2) [1959] S.C.R. 42'7. .\n\n(3) [1966) I S.C.R. 950\n\nprocedure for such a levy and .also provided for the sanction of the\n\nGovemmnt. Section 13 5 ( 3) of the Act raised a conclusive preswnption that the procedure prescribed had been gone througb. on a .certain notification being' issued by the Government in that egard. This provision, it was contended, was ultra vires because there was an abdication of essential legislative functions by the legislature with respect to the imposition of tax inamuch as the. State Government . was given the powr to condone the breaches of the Act and to set at naught the Act itself.\n\nThis, it was contended, was an indirect exempting or dispensing power.\n\nHidayatullah, J. speaking for the majority, said that regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration, it is prop.:r to leave to these municipalities the power to impose and collect these taxes.\n\nHe further said that apart from the fact that the Board was representative body of the local population on whom the tax was levied, there were other safeguards by way of checks a.nd controls by Government which could veto the action of the Board in case it did not carry out the mandate of the legislature. ·\n\nI.n Devi Dass Gopal Krishnan v. State of Pun; ab( 1) the question was whether s. 5 of the East Punjab General Sales Tax Act, 1948; which empowered the State Government to fix sales tax at such rates as it thought fit was bad. The Court struck down the section on the ground that the legislature did notlay down any policy or guidance to the executive in the matter of fixation of rates. Subba Rao,\n\nC.J., speaking for the Court, pointed out that the needs of the State and the purposes cif the Act would not provide sufficient guidance for the fixation of rates of tax. He pointed out the danger inherent in the process of delegation :\n\n\"An overburdened Legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may Ii>t set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate [egislatio11. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation.\" ·\n\nIn Municipal Corporaiion of Delhi v. Birla Cotton Spinning and Weaving Mills( 2), the main question was about the constitutionality of delegation of taxing powers to municipal corporations. The Delhi Municipal Corpoation Act (66 of 1957) bys. 113(2) had \\m}powered the CorporaM.on to levy certain optional taxes.\n\nUnder s. 150, power was given to the Corporation to define the maximum rate of tax to be levied, the classes of persons and the description of articles and property tp be taxed, the systems of assessment to be adopted\n\n(I) [l967]3; S.C.R. 557.\n\n(2) [1968] 3, S.C.R. 251.\n\nand the exemptions, if any, to be granted. The. majority of the court held the cklcgation to ho valid. Wanchoo, C .J. observed tbat there were sutlicient guidance, checks and saf, guards in t11c Act which prevented excessive dckgation.\n\nThe learned Chief Justice observed that statements in certain cases to tho effect that th, power to fix rates cf taxes is 1101.· an essential legislative fUnctioh \\Vere too broad and that •tl1c natur~ of th~ body to \\vhich dclcgtion is n1atl.; is also :t factor to be taken into consideration in dctcrminin~ whether there is suftieicnt guidance in the matt.::r of dl.!Icgation·. .r\\ccording to the learned Chief Jmticc, the fact that dclcation was made to an dected body responsible to the people including those who paid taxes\n\nprovid1:d, a grci1t check on the eleci.ed councillors imposing unrcason- :1blc rates cf tax.\n\nHe then said : \"The guidance may take the form of providing maximum rates of tax up to which a local body may be givon the discretion to nlakc its choi:.:c-, or it n1, uy take the form of providing for consuLation with the people o( the local area and then fixing th~ rati:s after such consultation.\n\nIt may alsO. take the form of subjecting the rate to be fixed by the local body to the approval of Government which acts as a wntchdog on the actiqns of the local body in this matter on behalf cf the legislature.\n\nThere may be other ways in which guidance may be provided.'\" In Sita Ram Bishambhar D, ayal v. State of U.P.( 1} s. 3-D(ll of the U. P. Sales Tax Act, 1948, had provided for levying taxes at such rates as may be prescribed by the State Government not exceeding the 171aximum prescribed therein.\n\nHegdc, J., in speaking fnr the. Court, observed : ·\n\n'\"However much one might deplore the \"New Despotism' of the execmive, the very complexity of the modern society\n\narid Th:.! demand it makes on its Government have set in. motion forces which have made it absolutely necessary for the Lcgh:Iatures to entrust more and more po\\v<=ts to the executive.\n\nText hook doctrines evolved in the 19th centurv have become out of date.\" - In this case, we think that s. 71 of the Act which provides for the rule-making power imposes the necessary check upon -the wide power given to the government to fix the rate.\n\nSub, secli\"DD, { 4) of that section provides :\n\n\"Every rule made under this section shall be'.(;~:µ((. ijs soon as may be after it is made, before each Hi:w9e of _t!)e State Legislature while it is in sessii:ln for a totµ'Ipef/Odof thirty days which may be comprised in _one .seji6ii , o.r. in two or more successive sessions and if befcmi.the_,'\\'Xpiry,.<~ •. the session in which it is so laid or the sessTon immodia~Y,: follo\\ving, both Hous::s agree in nlaking any modification in. the rule (it?) shall thereafter have effect 9nly ih -such modified form or be of no cffcci;· ns. the_ ~:1<c may\n\n(I) [19721 2, S.C.R. 141.\n\nM. K. PAPIAH v. EXCISE CO, IMR. (Mathew, J.) 613\n\nbe; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.\" The appellant submitted that s. 71(4) does not provide a\n\nguaratcc for legis'ativc control over d7legated legislation.\n\nThe\n\ntrgu1nnt \\Vi.IS that the rules would come into forcz as soon as they arc framed and that the power of the legislature to annul the rules subsequcntl1y cannot be rcgard'd as sufficient contrc, l over delegated legislation.\n\nThal laying of rules b'forc the legislature is control over delegated Jcgisb:ion is implied in the speech of Lord Thankerton in the House of Lords in Minisrer of llealt!z v. The King(') where he said:\n\n\"'ln this case, as in similar cases that have .cOme before tho courts, Parliament has delegated its legislative function to u Ministor of the. Crown, but in this case Parliament has\n\nretained no specific control over the exercise of the function by tho Minister, such as a condition that the order should be '.aid before Parliam2nt and might be annulled by a resolution of either House within a limited period.\" In filsiitute of Patent Agellts v. Joseph Lockwood(') Lord \\Vatson said : 'The Legislature retained so far a check that it required that the regulations which they framed should be laid upon the wbk of both Houses; and of course these regulations could have been annulled by an unfavourable . resolution upon a nlo:ion made in either House.'' Jn Banard Schewartz's \"An fntroduction to American Administrative Law• it is stated :\n\n\"In Britain, Parliamentary control over delegated legislation is exercised through the various forms of 'iaying' prescribed in enabling Acts.· Through them, the legislature is enab!cd at least in theory to exercise a continuing supervision ovzr administrz:tive rules and regulations.'' .As Dan Landis pointed out, the English techniques for laying the ruks before the Houses have several virtues. \"For one thing, they bring the !ei>lativc into close and constant contact with the administrative .'T').\n\nTh: legislature may also retain its control over its delegate by exercising its power of repeJl. This was the basis on which the Privy\n\nCo1.111cil in Ct'!.'1:1 c~ Ci>. v. Kron,.?(\"') upf1ed ih..:- v;.1lidi:v of delegatin~ of t:1cp0\\vr to fix rates to the Commissioner of Transport in th:It c: 1 s=.~. The qustion there \\Vas \\Vhthr the Queensland -Leizishtur,: h:d legishtive authority uhdcr the impugned Acts to invest the Cornn1i!'io~~~-fr Transport \\vith pJWe~ to impose and levy\n\n(I) [1931] A.C. 5'.!4.\n\n(2) [1894] A.C. 347. ('3) see Landis, .. The Administrative Process ... 77 (1938~ . (4) [1967] l, A.C. 141 (P.C.). .\n\nSUPR, E:t.lE COUllT REPORTS [197~] 3 s.c.11..\n\nlicence and permit fees. It was not dispute<l; fore the~ Lordships t fees imposed are to be regarded as constitutmg taxlltion. Accordingly, it was contended that the legislature had abdicated its exc.lusive power of levying taxation. The Privy Council held that Queensland Legislature was entitled to use any agent or machinery that it considered appropriate for carrying out the object and the purposes of the Acts and to use the Commissioner for Transpoit as its instrument to fix and recover the licence and permit fees, provided it preserved its own capacity intact and retained perfect control over him; that as it could at any time repeal the legislation and withdraw such authority and discretion as it bad vested in him, it had not assiblled, transferred or abrogated its sovereign power to levy taxes, nor had it renounced or abdicated its responsibilities in favour of a new1y created legislative authority and that, accordingly, the two Acts\n\nwere valid.· Lord Morris of Borth-y-Gest said :\n\n'~What they (the legislature) created by the passing of the Tram:port Acts could not reasonably be described as a new legislative power or separate legislative body armed with general legislative authority (see R. v. Burah, (1878), 3 A. C. 889). Nor did the Queensland :µgislature 'create\n\nand endow with its own capacity a new legislative power not created by the Act to which it owes its own existence' (5ee\n\nIn re the Initiative 011d Refere11dum Act ( 1919) A.C. 945 at 945).\" The point to be emphasized-and this is rather crucial-is the :.tatcment of their Lordships that the legislature preserved its capacity intact and retained perfect control over the Commissioner for Transport inasmuch as it could at any time repeal the legislation and withdraw the autlwrity and discretion it had vested in him, and, therefore, the legislature did UQt abdicate its functions. - We, therefore, think that the power to fix the rate of excise duty cornferred Qil the government by s. 22 of the Act is valid. The dilution Qf P, UI'liameIJitary watch-dogging of delegated legislation may be deplored but, m the compulsions and complexities of modern life, cannot be helped.\n\nThe last contention raised by the appellant was that s. 19 of the Karnataka Sales Tax Act, 1957 is invalid as it pur ports to levy sales tax upon the sale of arrack made by the Government to licensees. The appellant submitted that the definition of \"dealer' in s. 2 of the Act excludes the Government of Mysore and that by virtue of the provisions in s. 5(3) of that Act, no tax could be :levied on the sale of arrack by government to the appellant. We sec no merit in this contention. Section 19 of the Act reads:\n\n\"19. State Government entitied to collect tax as registered dealcrs.-Notwithstanding anvthing contained in this Act the Government o:f Mysore shall, in respect of any sale of goods e:tfected by them, be entitled to co11ect by way of tax any amount which a registered dealer effecting such sale would have been entitled to collect by way of tax under this Act.\" ·\n\nThi3 section makes it clear that notwithstan<llng aI1}thina QOlltained in that Act, the Government shall in respect of. any Ille of goods effected by it be entitled to collect by way of taX aDJ amoat which a registered dealer effecting such sale would have been CDtided to collect by way of tax under the Act. The section is clear thlt the Government could collect the tax on the sale made by it as if it were\n\na registered dealer, not withstanding anything contained in s. 2 or s. 5. The section itseH creates a right in the State to r.:cover and an obligation on the purchaser from the State to pay the amount. ADY\n\nimposition of liability or obligation in respect of. sale or purchase of goods will be covered by Entry 54 of List Il of the Seventh Schedule of the Constitution.\n\nWe do not think that s. 19 is ultra vires the powers of the legislature.\n\nWe therefore dismiss the appeals but make no order as to costs.\n\nV.M.K.\n\nAppeals dismissed.", "total_entities": 85, "entities": [{"text": "M. K. P APIAH & SONS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "M. K. PAPIAH & SONS", "offset_not_found": false}}, {"text": "THE EXCISE COMMISSIONER & ANR", "label": "RESPONDENT", "start_char": 22, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "THE EXCISE COMMISSIONER & ANR", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 74, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "V. R. KIUSHN.\\ IYER", "label": "JUDGE", "start_char": 88, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ", "label": "JUDGE", "start_char": 112, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Mvsore Excise Act, 1965", "label": "STATUTE", "start_char": 134, "end_char": 157, "source": "regex", "metadata": {}}, {"text": "Sections 16, 22 and 23", "label": "PROVISION", "start_char": 159, "end_char": 181, "source": "regex", "metadata": {"linked_statute_text": "Mvsore Excise Act, 1965", "statute": "Mvsore Excise Act, 1965"}}, {"text": "Mvsore xcise Act, 1965", "label": "STATUTE", "start_char": 439, "end_char": 461, "source": "regex", "metadata": {}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 691, "end_char": 704, "source": "regex", "metadata": {}}, {"text": "Schedule V", "label": "PROVISION", "start_char": 873, "end_char": 883, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act", "statute": "Sales Tax Act"}}, {"text": "Karnataka", "label": "GPE", "start_char": 1027, "end_char": 1036, "source": "ner", "metadata": {"in_sentence": "fh~ ppellan~. an excie contractor secured the privilege of vending arrack m retail m certain taluks in the State of Karnataka tor a period of 18 months beginning from 28-12-1967 and ending on 30-6-69."}}, {"text": "28-12-1967", "label": "DATE", "start_char": 1078, "end_char": 1088, "source": "ner", "metadata": {"in_sentence": "fh~ ppellan~. an excie contractor secured the privilege of vending arrack m retail m certain taluks in the State of Karnataka tor a period of 18 months beginning from 28-12-1967 and ending on 30-6-69."}}, {"text": "30-6-69", "label": "DATE", "start_char": 1103, "end_char": 1110, "source": "ner", "metadata": {"in_sentence": "fh~ ppellan~. an excie contractor secured the privilege of vending arrack m retail m certain taluks in the State of Karnataka tor a period of 18 months beginning from 28-12-1967 and ending on 30-6-69."}}, {"text": "31-1-1968", "label": "DATE", "start_char": 1453, "end_char": 1462, "source": "ner", "metadata": {"in_sentence": "Thti Government also collected sales tax on the sale price of arrack, on excise duty, on health cess and on education cess tor the period from 28-12-1967 to 31-1-1968 and made similar demands for the month of February, 1968 also.·"}}, {"text": "High Court at Karnataka", "label": "COURT", "start_char": 1598, "end_char": 1621, "source": "ner", "metadata": {"in_sentence": "The app6llant and other excise contractors filed writ petitions in the High Court at Karnataka challenging the validity of the levy and collection of exci'e Cluty, educatio11 cess."}}, {"text": "s. 22", "label": "PROVISION", "start_char": 2214, "end_char": 2219, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 2466, "end_char": 2471, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 2841, "end_char": 2846, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 2956, "end_char": 2966, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 16(e)", "label": "PROVISION", "start_char": 3129, "end_char": 3137, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 3196, "end_char": 3201, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71", "label": "PROVISION", "start_char": 3545, "end_char": 3550, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 3955, "end_char": 3960, "source": "regex", "metadata": {"statute": null}}, {"text": "[1967] 3 S.C.R. 557", "label": "CASE_CITATION", "start_char": 4248, "end_char": 4267, "source": "regex", "metadata": {}}, {"text": "Section 19", "label": "PROVISION", "start_char": 4312, "end_char": 4322, "source": "regex", "metadata": {"statute": null}}, {"text": "Sulcs Tax Act, 1957", "label": "STATUTE", "start_char": 4344, "end_char": 4363, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 4835, "end_char": 4839, "source": "regex", "metadata": {"linked_statute_text": "Sulcs Tax Act, 1957", "statute": "Sulcs Tax Act, 1957"}}, {"text": "S4", "label": "PROVISION", "start_char": 5092, "end_char": 5094, "source": "regex", "metadata": {"linked_statute_text": "Sulcs Tax Act, 1957", "statute": "Sulcs Tax Act, 1957"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 5113, "end_char": 5129, "source": "regex", "metadata": {"linked_statute_text": "Sulcs Tax Act, 1957", "statute": "Sulcs Tax Act, 1957"}}, {"text": "Section 19", "label": "PROVISION", "start_char": 5152, "end_char": 5162, "source": "regex", "metadata": {"linked_statute_text": "Sulcs Tax Act, 1957", "statute": "Sulcs Tax Act, 1957"}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 5369, "end_char": 5386, "source": "ner", "metadata": {"in_sentence": "o\n\nFrom the judgment & Order dated the 12th July, 1968 of ihe Mysore High Court in W.P. Nos."}}, {"text": "K. Srinivasan", "label": "LAWYER", "start_char": 5432, "end_char": 5445, "source": "ner", "metadata": {"in_sentence": "K. Srinivasan and Vineet Kumar, for the appellants."}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 5450, "end_char": 5462, "source": "ner", "metadata": {"in_sentence": "K. Srinivasan and Vineet Kumar, for the appellants."}}, {"text": "B. Datar", "label": "LAWYER", "start_char": 5489, "end_char": 5497, "source": "ner", "metadata": {"in_sentence": "B. Datar (ln C.A. No."}}, {"text": "M. Veerappa", "label": "LAWYER", "start_char": 5524, "end_char": 5535, "source": "ner", "metadata": {"in_sentence": "1883/69) and M. Veerappa, for thl' respcmdents."}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 5604, "end_char": 5610, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMATHEW, J.\n\nThe appellant was an excise contractor."}}, {"text": "30-6-1969", "label": "DATE", "start_char": 5821, "end_char": 5830, "source": "ner", "metadata": {"in_sentence": "28-12-1967 and ending on 30-6-1969."}}, {"text": "High Court of Karnatak", "label": "COURT", "start_char": 6316, "end_char": 6338, "source": "ner", "metadata": {"in_sentence": "The appellant and other excise contractors filed writ petitions in the High Court of Karnatak:a cballenging the validity of the levy and collection of excise duty, education cess, health cess and sales tax."}}, {"text": "s. 22", "label": "PROVISION", "start_char": 6967, "end_char": 6972, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 7214, "end_char": 7219, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore Sales Tax Act 1957", "label": "STATUTE", "start_char": 7227, "end_char": 7252, "source": "regex", "metadata": {}}, {"text": "Section 22", "label": "PROVISION", "start_char": 7349, "end_char": 7359, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act 1957", "statute": "the Mysore Sales Tax Act 1957"}}, {"text": "Mysore Excise Act, 1965", "label": "STATUTE", "start_char": 7367, "end_char": 7390, "source": "regex", "metadata": {}}, {"text": "Section 23", "label": "PROVISION", "start_char": 7629, "end_char": 7639, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Excise Act, 1965", "statute": "the Mysore Excise Act, 1965"}}, {"text": "sections 22 and 23", "label": "PROVISION", "start_char": 8214, "end_char": 8232, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Excise Act, 1965", "statute": "the Mysore Excise Act, 1965"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 8760, "end_char": 8765, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 9456, "end_char": 9461, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 9769, "end_char": 9774, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 9900, "end_char": 9910, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 10084, "end_char": 10089, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 10155, "end_char": 10160, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 10219, "end_char": 10224, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 548(2)", "label": "PROVISION", "start_char": 11948, "end_char": 11957, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta Municipal Act, 1951", "label": "STATUTE", "start_char": 11965, "end_char": 11993, "source": "regex", "metadata": {}}, {"text": "Municipalities Act, 1916", "label": "STATUTE", "start_char": 12790, "end_char": 12814, "source": "regex", "metadata": {}}, {"text": "Section 13", "label": "PROVISION", "start_char": 13140, "end_char": 13150, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 13701, "end_char": 13713, "source": "ner", "metadata": {"in_sentence": "Hidayatullah, J. speaking for the majority, said that regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration, it is prop.:r to leave to these municipalities the power to impose and collect these taxes."}}, {"text": "I.n Devi Dass", "label": "OTHER_PERSON", "start_char": 14291, "end_char": 14304, "source": "ner", "metadata": {"in_sentence": "I.n Devi Dass Gopal Krishnan v. State of Pun; ab( 1) the question was whether s. 5 of the East Punjab General Sales Tax Act, 1948; which empowered the State Government to fix sales tax at such rates as it thought fit was bad."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 14369, "end_char": 14373, "source": "regex", "metadata": {"statute": null}}, {"text": "East Punjab General Sales Tax Act, 1948", "label": "STATUTE", "start_char": 14381, "end_char": 14420, "source": "regex", "metadata": {}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 14678, "end_char": 14687, "source": "ner", "metadata": {"in_sentence": "Subba Rao,\n\nC.J., speaking for the Court, pointed out that the needs of the State and the purposes cif the Act would not provide sufficient guidance for the fixation of rates of tax."}}, {"text": "s. 150", "label": "PROVISION", "start_char": 15845, "end_char": 15851, "source": "regex", "metadata": {"statute": null}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 16214, "end_char": 16221, "source": "ner", "metadata": {"in_sentence": "Wanchoo, C .J. observed tbat there were sutlicient guidance, checks and saf, guards in t11c Act which prevented excessive dckgation."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 17599, "end_char": 17603, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 17622, "end_char": 17641, "source": "regex", "metadata": {}}, {"text": "Hegdc", "label": "JUDGE", "start_char": 17782, "end_char": 17787, "source": "ner", "metadata": {"in_sentence": "Hegdc, J., in speaking fnr the."}}, {"text": "s. 71", "label": "PROVISION", "start_char": 18238, "end_char": 18243, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1948", "statute": "Sales Tax Act, 1948"}}, {"text": "s. 71(4)", "label": "PROVISION", "start_char": 19236, "end_char": 19244, "source": "regex", "metadata": {"statute": null}}, {"text": "Thankerton", "label": "OTHER_PERSON", "start_char": 19669, "end_char": 19679, "source": "ner", "metadata": {"in_sentence": "Thal laying of rules b'forc the legislature is control over delegated Jcgisb:ion is implied in the speech of Lord Thankerton in the House of Lords in Minisrer of llealt!z v. The King(') where he said:\n\n\"'ln this case, as in similar cases that have .cOme before tho courts, Parliament has delegated its legislative function to u Ministor of the."}}, {"text": "Parliament", "label": "ORG", "start_char": 19828, "end_char": 19838, "source": "ner", "metadata": {"in_sentence": "Thal laying of rules b'forc the legislature is control over delegated Jcgisb:ion is implied in the speech of Lord Thankerton in the House of Lords in Minisrer of llealt!z v. The King(') where he said:\n\n\"'ln this case, as in similar cases that have .cOme before tho courts, Parliament has delegated its legislative function to u Ministor of the."}}, {"text": "Jn Banard Schewartz", "label": "OTHER_PERSON", "start_char": 20512, "end_char": 20531, "source": "ner", "metadata": {"in_sentence": "Jn Banard Schewartz's \"An fntroduction to American Administrative Law• it is stated :\n\n\"In Britain, Parliamentary control over delegated legislation is exercised through the various forms of 'iaying' prescribed in enabling Acts.·"}}, {"text": "Britain", "label": "GPE", "start_char": 20603, "end_char": 20610, "source": "ner", "metadata": {"in_sentence": "Jn Banard Schewartz's \"An fntroduction to American Administrative Law• it is stated :\n\n\"In Britain, Parliamentary control over delegated legislation is exercised through the various forms of 'iaying' prescribed in enabling Acts.·"}}, {"text": "Dan Landis", "label": "OTHER_PERSON", "start_char": 20889, "end_char": 20899, "source": "ner", "metadata": {"in_sentence": ".As Dan Landis pointed out, the English techniques for laying the ruks before the Houses have several virtues. \""}}, {"text": "Morris", "label": "OTHER_PERSON", "start_char": 22746, "end_char": 22752, "source": "ner", "metadata": {"in_sentence": "Lord Morris of Borth-y-Gest said :\n\n'~What they (the legislature) created by the passing of the Tram:port Acts could not reasonably be described as a new legislative power or separate legislative body armed with general legislative authority (see R. v. Burah, (1878), 3 A. C. 889)."}}, {"text": "s. 22", "label": "PROVISION", "start_char": 23750, "end_char": 23755, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 23995, "end_char": 24000, "source": "regex", "metadata": {"statute": null}}, {"text": "Karnataka Sales Tax Act, 1957", "label": "STATUTE", "start_char": 24008, "end_char": 24037, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 24203, "end_char": 24207, "source": "regex", "metadata": {"linked_statute_text": "the Karnataka Sales Tax Act, 1957", "statute": "the Karnataka Sales Tax Act, 1957"}}, {"text": "Government of Mysore", "label": "ORG", "start_char": 24232, "end_char": 24252, "source": "ner", "metadata": {"in_sentence": "The appellant submitted that the definition of \"dealer' in s. 2 of the Act excludes the Government of Mysore and that by virtue of the provisions in s. 5(3) of that Act, no tax could be :levied on the sale of arrack by government to the appellant."}}, {"text": "s. 5(3)", "label": "PROVISION", "start_char": 24293, "end_char": 24300, "source": "regex", "metadata": {"linked_statute_text": "the Karnataka Sales Tax Act, 1957", "statute": "the Karnataka Sales Tax Act, 1957"}}, {"text": "Section 19", "label": "PROVISION", "start_char": 24428, "end_char": 24438, "source": "regex", "metadata": {"linked_statute_text": "the Karnataka Sales Tax Act, 1957", "statute": "the Karnataka Sales Tax Act, 1957"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 25293, "end_char": 25297, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 25301, "end_char": 25305, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 25565, "end_char": 25581, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 25625, "end_char": 25630, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_616_618_EN", "year": 1975, "text": "~· Y: t• f. >.\n\nSABHAJIT TEWARY\n\nUNION OF INDIA & ORS.\n\nFebruary 21, 1975 . [A. N. RAY, C.J., K. K. MATHEW, Y. V. Cru\\NDRAcHtJD, A.\n\nALAGIRISWAMI A. G. G UPTA, J/.]\n\nComriturio11 of India, Arts, 12 and 14--Counci/ of Sciemi{ic and lndust . ''/ 1 •1 • r1a[ Rcscarc!J, 1 aut ron y.\n\n Tho petitioner, a stenograp?er in the uncil of. Scbntific and Industrial Ran:b. contended that ccrta.Jn letters rctat1~2 t~ hL<i remuneration wen: dil criminatory, as far as he was concerned. and VIOlative of Art. 14.\n\nOjsm.issiog the petition, HElD : The resoondcnt Council is nol an athoritv ithin th~ me:llling of Art. 12 aod the petitioner was, therefore, not cnlltlcd to anvoke Art. 14 at.Umt it. [6188-C]\n\nme Council doe'i not have a statutorv charac.tu like the Oil and Natur:t.I G:t.<& Commission or tho Life Insurance Corporation or the Industrial Fill:Ioce Corporation. It is a society incorporated in accordance with the provisions of\n\ntho Societies Registcation Act. The tact that lbe Pnme linish:r t:s ill..: rn::Jident, or that the Government appoint! nominees to the governing boOy oc th.u\n\ntbe Govemmeol may terminate the membership, will not establl:; b an;1111n6 more than tho fact that tho Government takes special care that tho promotioo, gutdan~ and coooeration of scientific and industrial research, tll~ institution and financing of spocific re-; earchcs, cstlbli!dlment or development and as.u, tance\n\nto l>pecial in'ititu*ion'> or departments of tho ex..istiog institution..-. for scientific study o{ problems affecting particular indusl.ry in a trade, and th~ utilisation oi\n\nthe ruult of the re!learches conducted unJcr tho auspices of the Council towards the developnt of iod ustrie~ in the country, are Cf\\rried out in a resporuible mMlner. [617EHJ\n\nPrafa Toolr Corooration v. C. A. /manual & Ors. (19691 3 S.C.R. 773.\n\nJleav1 En;; inurtng Mazdoor Union v. Tl~ Stall! of BlluJr & Or!. [1969] 3 S.C.R. 995 and S. L. Agarwal v. Gnorc/ Ma11.agtr, Hindr~.rtan Steel Ltd. [1970] 3 S.C.R.\n\n363. referred to. .\n\nORIGINAL I URISDlCTIO:--J : \\Vrit Petition No. 43 of 1972.\n\nPetition under Art. 32 of the Constitution of India.\n\nB. R. G. K. Acher, for the pelitioncr.\n\nF. S. Narimnn, Additional Solicitor General of India and Rameshwar Nath~ for respondents Nos. 2, 3 and 4.\n\nThe Judgment of the Court was delivered by\n\n. _RAY, C.J.-In Writ Pd.ition No. 43 of 1972 the petitioner who_i., JUnmr stenographer in the Council of Scientific and lndustnal Research .... ked f d ' · t'r}· :J • . '.~...... or~ or cr ucclannp; two lt:tters to l~ discnmu • .l v t'nd vzh~Jve CJf Article 14. The two Jetter~ rclat~ to recon.unen<hj t>ns. 0. t le F'lllancc Sub Committee of the Council of Scientific an\n\nld~:mu Reseac}l with regard to remuneration of stenographers. same ort, \\he pctJtJOners allegations are that ho should be granted tbe\n\ntntransm :>er of advance increments as approved and granted to neW\n\n. !\n\nSABHAJIT TEWARY v. UNION ·(Ray, C.J.) 6 17\n\nIn order to entitle the petitioner to impeach the. ircular on the ground of infraction of Article 14 and 16, the ettttoner ha~ to\n\nestablih that the Council of Scientific and Industnal Research ts an authod1y within the meaning of Article 12 of the Constitution.\n\nThe Council is a society registered under the Societies Registration Act. Reliance was placed by counsel fo~ the t!tioner on t?ee features of the society. Under Rule 3, the Pnme Mtmster of Ind1a IS the ex-c:ffi.cio President of the Society. The Governing Body under Rule 30 consists of inter alia some persons appointed by the Government of India representing the administrative Ministry under which the Council of Scientific and Industritl Research is included, and the .Ministry of Finance and one or more member~~ appointed by the Government of India. The Government of India may terminate the membership of any member or at one and the same time of all members other than the ex-officio members of the Governing Body.\n\nRule 45 states that the Governing Body shall have the management of all the affairs and funds of the Society. Rule 46 states that the Governing Body shall have power, with the sanction of the Government of lrldia to frame, amend or repeal bye-laws not inconsistent with the rules for the administration and management of the affairs of the Society and in particular to provide for the terms and tenure . of appointments, employments, allowances, rules of discipline and other conditions of service of the officers and staff of the Society.\n\nReference was also made to the Government of India (Allocation of Business) Rules, 1961 and in particular to page 76 where it is stated that all matters relating to the Council of Scientific and Industrial Research are under the department of Science and Technology.\n\nExtracting the features as aforesaid, it was contended that these would indicate that the Council of Scientific and Industrial Research was really an agency of the Government. This contention is unsound.\n\nThe Society does not have a statutory character like the Oil and Natural Gas Commission. or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated in accordance wit}} the provisions of the Societies Registration Act. The fac~ that the Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that th~~ Government takes special care t;1at the promotion. guidance\n\nnd co-operation of scientific and industrial research. the institution and financing of soecific researches, establi<ihment or develooment and assistance to special institutions or departments of the aisting institutions for scientific studv of problems affectinl! narticuhr industrv in a trade, the utilisation of the result of the reserchcs conducted U!lder the ausoices of the Council towards the dcvelonmnt of industries in the country arc carried out in a rcspon<; ible manner.\n\nH This Court ha<; hl\"lrl in PrnOtJ Tnfll\\· rorTJOI'tilitll? v. (i.IJ•i c. A.\n\nImamtal & Ors. f19691 3 S.C.R. 773. HPfl\\.\\' f:nni\"\"Prill\" Ma:::donr Union v. Thr! State of Bihar & Ors. f1 Q69l 3 S.C.R. 995 anti in\n\nS. L Aarwrd v.\n\nGenPm[ MmULf!l!r Hi11rlus'm1 Stt>e[ Ltd.\n\n[1970J 3 S C.R. 363 that the Praga Tools Corporation. Heavy E.1ginccring 9- 470 Sup. CTf75\n\n61.8\n\nSUPREME COURT REPORTS [1975] 3 s.c.R.\n\nMazdoor Union and Hindustan Steel Ltd. are all companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to Government servants as (:Ontemplated in Article 311. The companies were held in these\n\n~:ase!S , to have . independent existence of the Government and by the Jaw relating to corporations. These could not be held to be deart ments of the Government.\n\nFor these rt, asons we are of opinion that the Council of Scien.tific and Industrial Research is not an authority within the meaning. of J'uticle 12 of the Constitution. The writ petition is dismissed.\n\nParties will pay and bear their own costs in this Writ Petition.\n\nv.r.s.\n\nPetition dismissed.", "total_entities": 33, "entities": [{"text": "SABHAJIT TEWARY", "label": "PETITIONER", "start_char": 16, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "SABHAJIT TEWARY", "offset_not_found": false}}, {"text": "UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 33, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "February 21, 1975", "label": "DATE", "start_char": 56, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "February 21, 1975 . ["}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 77, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 94, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "ALAGIRISWAMI", "label": "JUDGE", "start_char": 133, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 491, "end_char": 498, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 599, "end_char": 606, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 665, "end_char": 672, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "[1969] 3 S.C.R. 995", "label": "CASE_CITATION", "start_char": 1896, "end_char": 1915, "source": "regex", "metadata": {}}, {"text": "[1970] 3 S.C.R.\n\n363", "label": "CASE_CITATION", "start_char": 1978, "end_char": 1998, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2091, "end_char": 2098, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 2106, "end_char": 2127, "source": "regex", "metadata": {}}, {"text": "B. R. G. K. Acher", "label": "LAWYER", "start_char": 2130, "end_char": 2147, "source": "ner", "metadata": {"in_sentence": "B. R. G. K. Acher, for the pelitioncr."}}, {"text": "F. S. Narimnn", "label": "LAWYER", "start_char": 2170, "end_char": 2183, "source": "ner", "metadata": {"in_sentence": "F. S. Narimnn, Additional Solicitor General of India and Rameshwar Nath~ for respondents Nos."}}, {"text": "Rameshwar Nath~", "label": "LAWYER", "start_char": 2227, "end_char": 2242, "source": "ner", "metadata": {"in_sentence": "F. S. Narimnn, Additional Solicitor General of India and Rameshwar Nath~ for respondents Nos."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 2571, "end_char": 2581, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 14 and 16", "label": "PROVISION", "start_char": 3036, "end_char": 3053, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Council of Scientific and Industnal Research", "label": "ORG", "start_char": 3095, "end_char": 3139, "source": "ner", "metadata": {"in_sentence": "ircular on the ground of infraction of Article 14 and 16, the ettttoner ha~ to\n\nestablih that the Council of Scientific and Industnal Research ts an authod1y within the meaning of Article 12 of the Constitution."}}, {"text": "Article 12", "label": "PROVISION", "start_char": 3177, "end_char": 3187, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Societies Registration Act", "label": "STATUTE", "start_char": 3256, "end_char": 3282, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Government of India", "label": "ORG", "start_char": 3537, "end_char": 3556, "source": "ner", "metadata": {"in_sentence": "The Governing Body under Rule 30 consists of inter alia some persons appointed by the Government of India representing the administrative Ministry under which the Council of Scientific and Industritl Research is included, and the .Ministry of Finance and one or more member~~ appointed by the Government of India."}}, {"text": "Council of Scientific and Industritl Research", "label": "ORG", "start_char": 3614, "end_char": 3659, "source": "ner", "metadata": {"in_sentence": "The Governing Body under Rule 30 consists of inter alia some persons appointed by the Government of India representing the administrative Ministry under which the Council of Scientific and Industritl Research is included, and the .Ministry of Finance and one or more member~~ appointed by the Government of India."}}, {"text": "Government of lrldia", "label": "ORG", "start_char": 4125, "end_char": 4145, "source": "ner", "metadata": {"in_sentence": "Rule 46 states that the Governing Body shall have power, with the sanction of the Government of lrldia to frame, amend or repeal bye-laws not inconsistent with the rules for the administration and management of the affairs of the Society and in particular to provide for the terms and tenure ."}}, {"text": "Council of Scientific and Industrial Research", "label": "ORG", "start_char": 4643, "end_char": 4688, "source": "ner", "metadata": {"in_sentence": "Reference was also made to the Government of India (Allocation of Business) Rules, 1961 and in particular to page 76 where it is stated that all matters relating to the Council of Scientific and Industrial Research are under the department of Science and Technology."}}, {"text": "Oil and Natural Gas Commission", "label": "ORG", "start_char": 5004, "end_char": 5034, "source": "ner", "metadata": {"in_sentence": "The Society does not have a statutory character like the Oil and Natural Gas Commission."}}, {"text": "Societies Registration Act", "label": "STATUTE", "start_char": 5176, "end_char": 5202, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "SUPREME COURT REPORTS [1975] 3 s.c.R.", "label": "COURT", "start_char": 6340, "end_char": 6377, "source": "ner", "metadata": {"in_sentence": "CTf75\n\n61.8\n\nSUPREME COURT REPORTS [1975] 3 s.c."}}, {"text": "Mazdoor Union", "label": "PETITIONER", "start_char": 6379, "end_char": 6392, "source": "ner", "metadata": {"in_sentence": "R.\n\nMazdoor Union and Hindustan Steel Ltd. are all companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to Government servants as (:Ontemplated in Article 311."}}, {"text": "Hindustan Steel Ltd.", "label": "ORG", "start_char": 6397, "end_char": 6417, "source": "ner", "metadata": {"in_sentence": "R.\n\nMazdoor Union and Hindustan Steel Ltd. are all companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to Government servants as (:Ontemplated in Article 311."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 6459, "end_char": 6472, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 311", "label": "PROVISION", "start_char": 6591, "end_char": 6602, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Council of Scien.tific and Industrial Research", "label": "ORG", "start_char": 6848, "end_char": 6894, "source": "ner", "metadata": {"in_sentence": "For these rt, asons we are of opinion that the Council of Scien.tific and Industrial Research is not an authority within the meaning."}}]}
{"document_id": "1975_3_619_685_EN", "year": 1975, "text": "SUKHDEV SINGH & ORS.\n\nI'.\n\nBHAGA TRAM SARDAR SINGH RAGHUVANSHI AND ANR; February 21, 1975\n\n[A. N. RAY, C.J., K. K. MATHEW, Y. v. CHANDRACHUD,\n\nA. ALAGIR!SWAMI AND A. c. GUPTA, JJ.]\n\nStal1aory Corporations-Regulations made by, whether have force of law-.\n\nWlwthcr employees of corporation are servants of Union or State.\n\nConstitution of. India. Art. 12-WJiether statutory corporations are 'State' or 'authority',\n\nThe Oil and Natural Gas Com'mission, the Industrial Finance Corporation\n\nnd the Life Insurance Corporation are .:reated by statutes. The Oil and 'C.!'lral Gas Commission is owned by the Government, the management is by the Government and it could be dissolved only by the Government. The p1w. isions of the Oil and Natural Gas Commission Act, 1954, creatil}g it. show that it acts as 1an agency of the cenral Government. The provisions of the Jndustrial Finance Corporation Act, 1948, creating the Industrial Fina, nce Corporation show that the Corporation is under the complete contl'ol and managemwt\n\nf the Central Government. Provisions of the Life Insurance Act, 1956, whi:h creates the Life Insurance Corporation, show that this Corporation is also ari agency of the Government carrying on the exclusive business of Life , Insurance.\n\nThe Corporation is owned and managed by the Government and it can be dissolved only by the Government.\n\nAll the three statutes constituting the three statutory corporations enabled them to male regulations which provide, il!ll'r a/ia, for the terms and conditions of employment and '3ervices of their employees.\n\nOn the question whether, (i) the regulations have the for.:e of law, and (ii) whether the statu.tory corporations are 'State' within the meaning o'f Art. 12 of the Constitution,\n\nHELD: (Per A. N'. Ray, CJ., Y. V. Chandrachud and A. C. Gupta, JJ.)\n\nThe regulations have the for~-e of law and the employees arc entitled lo the declamtion of being in employment when their dismissal or removal is in contravention of the regulations.\n\n[642E-F]\n\n(a) Regulations under an Act are framed in exercise of a specific power conferred by the statute to make regulations. The authority making the regulations must specify the sources of its specific power. The essen:e of Jaw is that it is made by the law makers in exerci3e of specific authority. The vires of such of law is capa, ble of being challenged if the power is absent or has been exceeded by the authority making ru.les or regulations.\n\nThe manner and procedure adopted in making the regulations in the instant case, by the three statutory corporations, have this characteristic of law.\n\n[629G-A]\n\n(b) Another characteristic of law is its content. Law is a rule of general conduct while administrative instructions relate to a particular person.\n\n[630A]\n\n(c) Broadly stated the distinction between rules and regulations on one hand, and administrative instructions on the other, is that rules and regulations can be made only after reciting the sour.:e of power whereas administrative instructions are not issued after reciting the sou.rce of power. There is, however, no substantial difference between rules and regulations inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under statute applies uniform treatment to everyone or to aJl members of some group of class. [630G; 6330]\n\n(d) The regulations in the present case are, inter alia, for the purpose of defining the duties, conduct and conditions of service of officers and other\n\nemployees.\n\nThey contain the terms and conditions of aippointment which are imperative. The form and content of the contract with a particular employee is prescriptive and statutory.\n\nThe notable feature is that these statutory bodies have no free hand in framing the conditions and temis of service of their employees.\n\nThey are bound to apply the terms and conditions as laid down in tile regulations.\n\nThese regulaitions are not only binding on the authority but nl5o on the public.\n\nThey imposed obligations on the statutory authorities.\n\nThe statutory authorities cannot deviate from the conditions of service.\n\nAny deviation will b.t; enforced by legal sanction of courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations u:nder the :itatnte is to ensure regµlar condll'Ct with a distinctive attitude to that conduct as a standard.\n\nThe statutory regulations in the instant case give the employees a statutory sta•tus and impose restrictions on the employer and the empl<lyee with 110 option to vary the conditions. An ordinary individual, in the case of muster and servant contract1rnl relationship, enforces breach of contract. the remedy being damages because pe1•sonal service is not capable of enforcement.\n\nJin the case of stautory bodies, however, there is no personal element whatsoever\n\nbecause of the impersonal character of the bodies.\n\nIn their case the element of public employment and service and the support of statute require observance of rules and regufations.\n\nFailure to observe requirements of the regulation by\n\n~.tatutory bodies i> enforced by courts by declaring the dismissal in violation of rules and regulations to be void.\n\nWhenever a man's rights are affected by a decision under statutory powers the court would resume the existence of a duty to observe the rules of natmal justice and compliance with rules and regulations imposed by statut,~. [630C-D; 633H; 634A-DJ\n\n( e) Further the executive power of a 'state' is not authorhed to frame mks under Art. 162.\n\n[630G]\n\n( f) The rules and regulatians in the present case cannot be equated t,1 the regulation framed by a company incorpora.ted under the Companies Act. A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of that Act.\n\nlt is not a statute body because it is not created by statu.te itself. A cumpany E mak;:s rules and regulations in accordance with the provisions of the Companies Act whereas the source of the power for making rules and regulations the c:ase of corporatiMs created by statute is the statute itself. A statutory body when it makes rules and regulations does so under the powers conferred by statute creating it.\n\n[631B-D]\n\n(g) In U.P. State Warehousing Corporation Case (1970] 2 S.C.R. 250 anG llldian Airlines Corporation Case [)971] 2 S.C.C. 192 tbe temis of the regulations were treated as terms and conditions of relationship between th~ corporation F and its empolyees.\n\nBu.t that could not lead to the condusion that they art: of the same nature :ind quality as the temis and conditions laid down in a contract of employmer.t.\n\nThose terms and conditions not being contractual are impmed by one kind of subordinate: legislation, viz., regulations made in exercise of the pewer conferred by the statute which constitute .the corporation. Terms of the regulation are not temis of contra:t. A corporation had no power to alter or modify or rescind the provisions of the regulations at its discretion which it could do in respect of the terms of contract that it may wish to enter with its G employees independent of these regulations, So far as the terms of the regulations are concerned the actions of the corporation are controlled by the Owtrnl Government.\n\nThe decisions, therefore, in U.P. Warehousing Corporation and Indian Airlines Corporation are in diret conflict with the decision of this Court in 1'arai11das Barot Divisional Co111ro//er S.T.C., [1966] 3 S.C.R. 40 and are wrongly decided.\n\n[633B-D]\n\nThe Sirsi M1111icipa/ity v.\n\nCecelia Kom Francis,\n\n[1973] 1 S.C.C. 409, followed. ·\n\n(2) The statut9ry bodies are authorities within the meaning of Art. 12 of the Constitution though their employees are not the servants of ihe Union or of a State.\n\n[642F]\n\nSUJCHDEV V. BHAGATRAM (3 21\n\n(a) The State undertakes commercial functions in combination with governmental fonctions in a welfare Stil:te. It must be able to impose decisions by or under law with authority.\n\nAn element of authority is of binding character.\n\nThe rules ancj regulations are authoritative because these rules and regulations direct and control not only the exercise of the powers by the corporation but also of persons who deal with these corporations.\n\nThe State itself is cnvi5aged under Art. 298 as having the right to carry on trade and .business.\n\nThe State as defined in Art. 12 comprehended bodies created for the purpose of promc1ting economic interests of the people.· The cfocumstance that the \"tatutory bodies required to carry on some adivities of the nature of trade or commerce does not indicate that it must be excluded from the scope of the word 'State'.\n\nA public autiiurity is a body which, has public or statutory duties to perform nnd which performs those duties and carries out its transactions for the benefit of the public and not for private profit.\n\nSuch an authority is not precluded from makinii a profit for the public benefit, [634F; H; 635A-B & G]\n\n(b) The power to give directions, the disobedience of which wou.ld be punishable as. criminal offences would furnish one of the reasons for ch~1rac terising the body as an authority within the meaning of Art. 12. The Oil and Natural Gas Commi\"ion Act confers power of entry on employees of the Commission upon any land or premises for the purposes of lawfully ·:ar;-ying out works by the commission. The members and employees of the Commission are public servant'5 within the meaning of s. 21 'of the Indian Penal Code.\n\nThe Commission enjoys protection of action taken under the Act.\n\nThe Life Insurance Act provides that if any person wilfully withholds or fails to deliver to the corporation any properly \\yhich has been transferred and vested in the corporation and wilfully applies them to purposes other than those expressed or authorised by the Act. he shall. on the complaint of the Corporation, be punishable with imprisonment.\n\nThe Corporation also enjoys protection of action taken • under the A:t. The Industrial Finance Corporation Act states that whoeYe:· in any bill of lading, warehouse, receipt or other instrument given to the Corpo:-.1tion whereby security is given to the Corporation for accommodation granted by it wilfully makes any false statement or knowingly permits any false sla!em~11t to be made shall be punishable with imprisonment.\n\nFurther, whoever. without the consent in writing of the Corporation, uses its name in any prospectus or advertisements shall also be punishable with imprisonment.\n\nThe corpo:arion also enjoys protection of action taken under the Act.\n\nA company incorporated under the Indian Companies Act does not enjoy these privileges. [641F; 64~A-D]\n\n(c) The fat that a statutory corporation is not granted immunity from taxation and therefore is under liability to be taxed would not indicate that the corporaion is not a state authority.\n\nArt. 289 of the Constitution empowers the Union of India to impose a tax in respect of trade or business carried on by on behalf of the State.\n\n[641GH]\n\nPer Mathew J. (Concurring)\n\nThe concept of State has undergone drastic changes in recent years.\n\nToday State cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. It has to be viewed mainly as a service Corporntion.\n\nA State is an abstract entity.\n\nIt. can only act through the instrumentality or agency of naturnl or juridical persons.\n\nThere is nothing strange in the notion of the State acting through a Corporation and making it an agency or insrn1mentality of the State.\n\nWith the advent of a welfare State the framework of civil service administration became in:re_asingly insr!.fficient for handling the new tasks which were ofte~ of a specialised and highly technical character. \"lhe distrust of Governme::' by civil service was a powerful factor in the\n\ndevelopmnt of a policy of public administration through separate Corporntions\n\nwhich would operate largely according to business principles and be sep, irately nccountable.\n\nThe Public Corporation, therefore, became a third arm of the GO\\ernment.\n\nThe employees of public Corporation are not civil enants.\n\nIn .so far as public corporations fulfil public tasks on behalf of governmn,, !hey are public authorities and as such. subject to control by Government.\n\nThe public Corporation being a :reation of the State h subject to the constitutional limitation as the State itself.\n\nThe governing power wherever located must be\n\nsubject to the fundamental constitutional limitations. The ultimate question which is relevant for our purpose is whether the Corporation is an agency or instrumentality of the Government for carrying on a business for the benefit of the public.\n\n[644E; 645B; G; 646C; 647B]\n\nA finding of State financial support plus an unusual degree of control ovf:r the management and policies might lead one to characterize an operation as state action.\n\nAnother factor which might be considered is whether the operation is an important public function.\n\nIn America corporations or associations, pnvate in character, but dealing with public rights, have been held subject to constitutiomtl standards.\n\nActivitie.' which are too fundamental to the society are by definition too important not to be :onsidered government function.\n\nThe State today has an aftirmative duty of seeing that all essentials 6f life are made available to al! persons. [650B-C; 65 lD-G]\n\nit is clear from these provisions of the statute; in question that the Central GoH!rnment has contributed the original capital of the Corporation. that part o[ the profit of the Corporation goes to that Government, that the Central Government exercises control over the policy of the Corporation, thact lh1: Cor)lQration carries on a business having great public importance and that it enjoys a monopolv in the business.\n\nThese corporations are agencies or instrumentalities of the 'state' and are, therefore, 'state' within the meaning of Art. 12.\n\nThe fact that these corporations have independent personalities in the eye of law doe~ not mean that they are not subject to the :ontrol o:f gol'ernment or that they are not instrumentalities of the government. Thesi: corporatioll'.i are instrnmentalities or agencies of the state for carrying on busi .. nesses which otherwise would have been run by the state departmentally. II'\n\nth~ state had chosen to carry on these businesses through the medium of govern .. meni departments. there would have been no question that actions of tliese: departments be 'state actions'.\n\nWhy then should be actions of corporations be: not state actions? [653H; 654A-C]\n\nThP. ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a.\n\nbusiness for the benefit of the public. In other words, the question is, for 'Vhose benefit was the coroc)ration carrying on the business ? When it is seen from the provisions of that Act that on liquidation of the Corporation, its assets shot•ld be dcvided among the shareholders, namely, the Central and State governments and others, if any. the implication is clear that the benefit of the accumulated income would go to the Central and State governments.\n\nNobody will den)' that an agent has a legal personality different from that of the prin· cipal.\n\nThe fact that the agent is subject to the direction of the principal does not mean that he has no legal personality of his own.\n\nLikewise, merely because: a corporation has legal personality of its own, it does not follow that the Cor· poration cannot be an agent or instrumentality of the state, if, it is subject to control of government in all important matters of policy.\n\nNo doubt, there might be some distinction between tne nature of control exercised by principal over agent and the control exercised by government over public corporation.\n\nThat, I think is only a distinction in degree.\n\nThe crux of the matter is that public corporation is a new type of institution which has sprung from the new\n\nocial and economic functions of 2overnment and that it therefore does not neatly fit into old legal categories.\n\nInstead of forcing it into them, the latter should be adopted to the needs. of changing times and conditions. [654F-H]\n\n(ii) The learned Chief Justice has dealt with the question in his judgment whether the regulations framed by the corporations have the force of Jaw and he has arrived at the conclusion that the regulations being framed under statutory provisions would have the force of law.\n\nI agree with that conclusion.\n\nEven assuming '.hat the regulations have no force of law, I think since the employm1:nt under these corporations is public employment, an employee would\n\nget a status which would enable him to obtain declaration for continuance in sen ice if he was dismissed or discharged contrary to the regulations.\n\n[6SSE-F]\n\n (iii) If a job is re11arded as analogous to property, it ought to be recognized that a man is entitled to a particular job just as the courts of Equity acknowledged his right to a particular piece of property. Where a public authority is\n\nSUKHDEV V. BHAGATRAM 623\n\nconcerned, this can be illll)lementd by a declaration .. In the case of private\n\nmp!oyment English law has devised no suitable remedy. That this is possible is shon by the example. of _other. countries. The Court must, therefore, adopt the attitude that declaration 1s the normal remedy for a wrongful dismissal in case of public employees which will only be refused in exceptional circumscances.\n\nThe remedy of declaration should be a readv-made instrument to proyide :einstatement in ublic sector.\n\nOne~ it is accepted. that a man's job is hke h18 property of which he can be depnved of for specific reasons this remedy becomes the primary one though it will need to be reinforced 'where imvate individuals are being sued. The law of master and servant has not kept pace vit~ the modern coditions and the mandate of equality embodied in the Const;<;; t10n. The law still attaches to the servant a status of inferiority and subjection to his master. Though fundamental reforms can only emanate from the legisla.ture,. the princ!ples fashioned by pblic law if applied .to master servant relat10nsh1p cart bnn2 about a change m law to accord with the social conditions of the 20th century.\n\n[6580-G]\n\n[Per Alagiriswami. J. (Dissenting)]\n\n(i) In order that an Institution must be an \"authority'' it should exercise part of the sovereign power or authority of the State. Port Trust is given the power to make regulations and Jo provide that breach of its regulations would be punishaole. In such a case, it is undoubtedly exercising part of the power of the State. The whole purpose of the Part III of the Constitution is to confer fundamental rights on the citizen, as against the power of the State or those exercising the power of the State. In the present case none of the Corporations exercise the power of the State anc:, therefore, cannot be the State or Autho\n\nrity. The regulations framed by these Corporations have no force of law.\n\nThe employees of these statutory bodies have no statutory status and they are not entitled to declaration of being in employment when their dismissal or removal is in contravention of 'tatutory provisions.\n\n[670A; 67 IA-C]\n\n(ii) Under the Indian Legislative practice Governments make the rules and regulations are made by any institution or organisation established by a Statute and where it is intended that the regulation should have effect as law. the Statute itself says so.\n\nAdministrative instructions are not necessarily in rela uon to the particular persons.\n\nThey may relate to a whole class of persons even as rules and regulations do.\n\nTo say that because the regulations contained the terms and conditions of appointment they are statutory is to beg the question.\n\nAn institution like the 1.1.C. which has its offices and employees all over the country has necessarily got to have a standard set of conditions of service for its various classes of employees.\n\nIt is not correct to say that the statutory\n\nbodic~ have no free hand in framing the conditions and terms of serv!ce of their employees. They are the authorities to make the regulations and, therefore, can make any regulations regarding the conditions and terms of service of their employees and also change them as they please. It cannot, therefore. be said tha! they are bound by these terms and conditions of service.\n\n[668E-H; 669H]\n\n(iii) There is no hllacy in equating rules and regulations of a Company with rules and reiiulations framed by a . statut_ory body.\n\nWhere an institution or organisation 1s established by a Statute or under a Statute in principle there is no difference between their powers. [6700-F]\n\n(iv) While rules are generally made9bv the Government. the rP.gulations are made by a body which is a creature of the statute itself with its powers limited by the statute. While rules apply to all matters covered by the statute, the scope of the regulations is narrower being usually confined to internal matters of the statutory body s•1ch as the conditions of service of its employees. When regulations standardise the condiiom of sen:ice of the employees or purpoi:t to formulate them. their character IS further diluted by the nature of the subJectmatter. For, service or employment is basically a contract which is deeply rooted in private law.· A mere standardisation or enumeration of the terms of a ser\n\nvice contract is not, therefor~. ordinarily sufficient to convert it into a statutory status.\n\n[669BDJ\n\nC1v1L APPELLATE JURISDICTION : Civil Appeal No. 2137 of 1972.\n\nFrom the Judgment and order da:ed the 14th July, 1972 of the Gujarat High Court in Spl. Civil Appln. No. 1470 of 1968.\n\nClVIL APPEAL NO. 1655 OF 1973\n\nAppeal by special leave from the Judgment and order dated .the 15th October, 1973 of the Gujarat High Court in L.P.A. No. 95 of\n\n1973.\n\nCIVIL APP.EAL NO. 1879 OF 1972 AND\n\nCIVIL APPEAL NO. 115 of 1974\n\nAppeal by special leave from the Judgment dated the 29th Januarv, c 1973; of the Delhi High Court in LPA No. 155 of 1972.\n\nF. S. Narima11, Addi. Sol. Gen (In CA. No. 2137 /72), A. K.\n\nSen (In CA 1655/73), B. Dutta for the Appellants.\n\nPramod Swarup for the appellant (In CA No. 1879 /72).\n\nM. K. Ramwnurthy, Janardan Sharma and Jitendra Sharma for D Appellant in C.A. No. 115/74.\n\nR. K. Garg, S. c. Agarwala, S. S.\n\nBhatnagar,\n\nV. J.\n\nFrancis.\n\nRamamurthy & Co. for Respondent No. 1.\n\nM. K. Ramamurthy J. Ramamurthy for Respondents (In CAs.\n\nNos. 1655/73 and 1879/72 and for Interv<:ner (In CA No. 1655/ E 73).\n\nF. S. Nariman, Addi. Sol. Gen. of India, /. N. Shroff for Respondent No. 1( In CA. 115 of 1974).\n\nP. K. Pillai for Intervener (In CA No. 2137/72).\n\nF. S. Narima11, Addi.\n\nSol. Gen. of India, V. J. Taraporewala,\n\n0. C. Mathur, Moha11 Prasad Jha and K. J. John for the Applicant/ Intervener (Air India).\n\nThe following Judgments were delivered\n\nRAY, C.J.-There are two questions for consideration in these appeals. First, vi'hether an order for removal from service contrary to regulations framed under the Oi~ and Natural Gas Commission Act 1959; the Industrial Finance Corporation Act, 1948; and the Lif/:\n\nInsurane Corp.oration Act, 1956 would t:nable the employees to dechrat10n agamst the statutory corporation of continuance in service or would only give rise to a claim for damages.\n\nSeco,1d whether an employee of a statutory corporation is entitled to cla:im protection. of .Articles 14 and 16 againlst tlie Corporation. In short th.e .quest10n 1s . whether these statutory corporations are authorities w1thm the meanmg of Article 12.\n\nSUKHDEV V. BHAGATRAM (Ray, C, J,) 625\n\nThe statutes for consideration are the Oil and Natural Gas Commis<ion Act, 1956; the lndutrial Finance Corporation Act, 1948; and the Life Insurance Corporation Act, 1956. The question which really talis for decision i& whether regulations framed under these statutes have the force of law.\n\nThe Oil and Natural Gas Commission Act, 1959 hereinafter referred to as the 1959 Act established the Commission as a body corporate having perpetual succession and a common seal. The composwon of the Comm1ss1on is the Chairman, and not less than two, and not more than eight, other members appointed by the Central Government. One of the members shall be a whole-time Finance Member in charge of the financial matters relating to thi Commission.\n\nThe Central Government may, if it thinks fit, appoint one of the members as Vice-Chairman of the Commission. Under section 12 of the 1959 Act the Commission may, for the purpose of performing its functions or exercising _its powers, appoint such number of employees as it may consider necessary. The functions and the terms and conditions of service of such employees shall be such as may be provided by regulations made under the 1959 Act. There was an existing organiswti:on set up in pursuance of a resolution of the Government of India No. 22/29/55-0 & G dated 14th August, 1956.\n\nEverv person employed by the said existing organisation before the establishment of the Commission became an employee of the Corporation in accordance with the provisions contained in section 13 o~ the 1959 Act.\n\nSections 31 and 32 of the 1959 Act are important.\n\nSection 31 states that the Central Government may, by notification in the Official Gazette, make rules to give effect to the provisions of the Act. The rules provide inter alia for the term of office of, Jllld the manner of filling casual vacancies among the members, and their conditions of service; the disqualifications for membership of the Commission and the procedure to be followed in removing a member who is or becomes subject to any disqualification; the procedure to be followed in the discharge of functions by members; the conditions subject to which and the mode in which contracts may be entered into by or on behalf of the Commission and some other matters.\n\nEvery rule made under section 31 of the 1959 Act shall be laid as soon as may be before each House of Parliament as mentioned in the section. Both Houses may agree to or annul the rule or modify it.\n\nUnder section 32 of the 1959 Act the Commission may, with the pnvious approval of the Central Government, by notification in the Official Gazette, make regulations not inconsistent with the Act and the rules made thereunder, for enabling it to discharge its functions under the Act. The regulations provide inter alia for the terms and conditions of appointment and service and the scales of pay of emplovees of the Commission: the time and place of meetings of the Commission. the procedure to be followed in regard to the transaction o[ business at such meetings: the maintenance of mbutes of meetings of the Commission and the transmission of copies thereof to the\n\nCentral Government; the persons by whom, and the manner in whicb payments, deposits and investments may be made on behalf of the Commission; the custody of moneys required and the maintenanc<~ of accounts. The Central Government may amend, very or rescind any regulation which it has approved, and thereupon the regulation shall have effect accordingly but without prejudice to the exercise of the powers of the Commission under sub-section ( 1) of section 32.\n\nThe Life Insurance Corporation Act, 1956 hereinafter referred to as the 1956 Act established the Corporation under section 3 of the Act. Under section 11 of the 1956 Act existing employees of an insurer whose controlled business was transferred to and vested in the Corporation and who were employed by the insurer wholly or min ly in connection with his controlled business immediately before the appointed day became on and from the appointed day an employee of the Corporation. Section 11 of the 1956 Act further states that the employees of the Corporation would hold office upon the same on the appointed day. These employees were further to continue terms and with the same rights and duties as they would have hild under the 1956 Act unless and until their employment was termiaated or until the remuneration, terms and conditions were duly altered lly the Corporation.\n\nThe two important sections of 1956 Act are sections 48 and 49.\n\nSection 48 states that the Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.\n\nThe rules inter alia provide for the term of office and the conditions o[ service of members; the !urisdiction of the Tribunals constituted urnder section 17 of the Act,' the manner in which and the persons to whom, any compensation under this Act mit) be paid; the conditions subject to which the Corporation may appoint employees. All rules made shall be laid as started in the section bt:fore both Houses ot Parliament and shall be subject to such modification as Parliament may make.\n\nSection 49 of the 1956 Act states that the Corporation may, with foe previous approval of the Central Government, by notification in the Gazette of India, make regulations not inconsistent with the Act. and the rules made thereunder to provide for all matters for whic:h\n\np~·vision is expedient for the purpose of giving effect to the prov1s10ns of this Act. The regulations may provide inter alia for the powers and functions of the Corporation which may be delegated to the Zonal Managers; the method of recruitment of employees and agents of the Corporation and the terms and conditions of service of such employees or agents; the terms and conditions of service <>f\n\nersons who have become employees of the Corporation under section ! I of the Act; the number, term of office and conditions of service of members of Boards constituted under section 22 of the\n\nAt; the maner in which the Fund of the Corporation shall be main.· tamed; the form and manner in which policies may be issued and contracts binding on the Corporation may be executed.\n\nSUKHDEV V, BHAGATRAM (Ray, C, J,) 027\n\nThe Industrial Finance Corporation Act, 1948 hereinafter referred to as tlte 1948 Act establishes the Corporation under section 3 of the Act. The uperintendence of the business of the Corporation shall be entrusted to a Board of Directors. Section 42 of the 1948 Act enacts 'that the Central Government may make rules in consultation with the Development Bank not inconsistent with the provisions of this Act and to give effect to the provisions of the Act and where there is aiJy inconsistency with rules and regulations the rules shali prevail. The rules under the Act are to be laid before each House of Parliament in the same manner as in the Oil and Natural Gas Commission Act. Section 43 of the 1948 Act enacts that the Board may with the previous approval of the Development Bank make regulations not inconsistent with the Act and the rules made thereunder to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act. The Development Bank means the Industrial Development Bank established under the Industrial Development Act, 1964. The shares of the Central Government in the Corporation shall stand transferred to the Development Bank when the Central Government shall so notify. The regulations provide inter alia for the holding and conduct of elections under this Act including the final decision of doubts or disputes regarding the validity of the election; the manner in which and the conditions subject to which the shares of the Corporation may be held and .transferred; the manner in which general meetings shall be convened, the procedure to be followed thereat; the duties and conduct, salaries, allowances and conditions of service of officers and other employees and of advisers and agents of the Corporation.\n\nThe contentions on behalf of the State are these. Regulations are framed under powers given by the statute affecting matters of internal management. Regulations do not have a statutory binding character.\n\nTerms and conditions of employees as laid down in the regulations are not a matter of statutory obligations. Regulations are binding not as. law but as contract. Regulations have no force of law. Regulations provide the terms and conditions of employment and thereafter thP. employment of each person is con:tractual,\n\nThe contentions on behalf of the employees are these. Regulations are made under the statute. The origin and source of the power to make regulations is statutory. Regulations are self binding in character. Regulations have the force of law inasmuch as the statutory authorities have no right to make any departure from the regulations.\n\nRules, Regulations, Schemes, Bye-laws, orders made under statutory powers are all comprised in tlelegated legislation The need for delegated legislation is that statutory ruies are framed with care and minuteness when the statutory authority making the rules is after the coming into force of the Act in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statues.\n\nSUPREME COTJRT REPORTS\n\n(1975) 3 S.C.R.\n\nln England the Statutory Instruments (Confirmatory Pow<:rs) 01dcr, 1947 contemplates orders in Council o~ o0er instrun:; n.ts which are described as orders. The Rules Pubhcat10n Act 189.• m Englallid defines \"rule making authority\" to include every authority authorised to make any statutory rules. Statutory rules are defin.ed there as rules, regulations or by-laws made under any Act of a_r!1a ment, in England. Orders are excluded from the statutory defimt1on of statutory rules as being administrative. In England regulation is the term most popularly understood and the one favoured by . the Committee on Ministers' Powers, who suggested that regulations should be used for substantive law and rules for procedural law, while orders should be reserved to describe the exercise of ex-ecutive\n\npower or the taking of a judicial or quasi judicial decision (See Craies on Statute Law, 7th Ed, at p. 303). The validity of statutory instruments is generally a question of vires, i.e., whether or not the enabling power has been exceeded or otherwise wrongfully exerci:ied.\n\nSubordinate legislation is made by a person or body by virtuf: of the powers conferred by a statute. By-laws are made in the main by local authorities or similar bodies or by statutory or other undert:; icings for regulating the conduct of persons within their areas or resorting to their undertakings. Regulations may determine the class of cases in which the exercise of the statutory power by any such authority constitutes the making of statutory rule. '\n\nThe words \"rules\" and \"regulations\" are used in an Act to limit the power of the statutory authority. The powers of statutory bodies are derived, controlled and restricted by the statutes which cn:<rte them and the rules and regulations framed thereunder. Any action of such bodies in excess of their power or in violation of the restrictiom, placed on their powers is ultra vires. The reason is that it goes to the root of the power of such corporations and the declaration of nuliity is the only relief that is granted to the aggrieved party.\n\nIn England subordinate legislation has, if validly made, the full forct: and effect of a statute, but it differs from a statute in that its Yalidity whether as respects form or substance is normally open to challenge in the Courts.\n\nSubordinate legislation has, if validily made, the full force and effect of a statute. That is so whether or not the statute under which it is made provides expressly that it is to have effect as if enacted therein. If an instrument made in the exercise of delegated powers directs or forbids the doing of a particular thing the result of a breach thereci'fo. is, in the absence of provision to the contran. the s:.ane as if the command or prohibition had been contained in the e:iabiing statute itself. Similarly, if such an instrument authorises or requires the doing of any act, the principles to be applied in deter- '.11ining whether a .Prson injured bY_ the act has any right of action m respect of the rn.iury are not different from those applicable\n\nSUKHDEV V. BHAGATRAM (Ray, CJ.) .629\n\nwhelher damage results fro~ an act done under ~\\lirect &llthority\n\nof a statute, Re Langlois and Biden, (1891) 1 Q.B. 349and1'111# v.\n\nJohnson, (1898) 2 Q.B. 91. .\n\nThe authority of a statutory body or public administrative body er agency ordinarily includes tlie power to make or adopt ru!ea l!lld . regulations. with respect .to matte.rs within the _prov_ce of h body provided such rules and regulations aro not lllCOllSIStent with .the relevant law. In America a \"public agency\" has been &lined as :m\n\nagency endowed with governmental or public functions. It has been held that the authority to act with the sanction of Govent behind it determines whether or not a governmental agency eX1Sts. The rules and regulations comprise those actions of the statutory er public bodies in which the legislative element predominates. These statutory bodies cannot use the power to make rules and regulatioD&. to enlarge the powers beyond the scope intended by the legislature. Rules and regulations made by rea•on of the specific power conferred on the . statute to make rules and regulations establish the pattern of conduct to be followed. Rules are duly made relative to the subject . matter on which the statutory. bodies act subordinate to the terms of the statute under which they are promulgated. Regulations are in aid of the enforcement of the provisions of the statute. Rules and . regulations have been distinguished from orders or determination of statutory bodies in the sense that the orders or determination are . actions in which there is more of the judicial function and which deal with a particnlhr present situation. Rnles and regulations on th\"' other hand are actions in which the legislative element predominates. ·\n\nThe process of legislation by departmental regulations saves time 'and is intended to deaJwith local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament and ca!a be taken away by Parliament. The legislative function is the making of rules. Some Acts of Parliament decide particular issues and do not lay down general rules.\n\nThe justification for delegated legislation in threefold. First, there is pressure on parliamentary time. Second, the technicality of subjectmatter necessitates prior consultation and expert advice on interests concerned. Third, the need for flexibility is established because it. is not possible to foresee every administrative difficulty that may arise to make adjustment that may be called for after the statute has begun , to operate.\n\nDelegated legislation fills those needs.\n\nThe characteristic of law .is the. ma!Ller and procedure adopted . in many forms of sub.:lrdinate legislation. The authority making rules and regulation must specify the source of the rule and regulation mak-. ing authority. To illustrate, rules are always framed in exercise of tho specific power conferred by the statute to make rules. Similarly, regulations are framed in exercise of specific power conferred by the statute to make reg-1lations.\n\nThe essence of law is that it is made by the law-makers in exercise of specific authority. .The vires of law is capable of beh1g challenged if the power is absent.or-has been exceeded by the authority making rules or re(U!ations.\n\nAnother characteristic of law is its content.\n\nLaw is a rule of general conduct while administrative instruction relates to particular person.\n\nThis may be illustrated with reference to regulations under the Acts forming the subject matter of these appeals.\n\nThe Life Insurnnce Corporation Act •as well as the Industrial Fi'aance Corporation Act confers power on the Corporation to 1make regulations as to the method of recruitment of employees and the terms and conditions of service of such employees or agents.\n\nThe Oil and Natural Gas Commission Act under section 12 states that the functions and terms a',1d condttiors of service of employees shall be such as may be provided by regulations under the Act.\n\nRegulations under the 1959 Act provide inter alia the torms and conditions of appointment and scales of pay of the employees of the Commissio1a.\n\nThe regulations containing the terrns and condcitions of appointmenr are imperative. The administrative instructfon is the entering into contract with a particular pers011 but the form and content of the contract is prescriptive and statuwry.\n\nTh, e noticeable feature il that these statutory bodies have \"10 free faand in framing the conditions and terms of service of their employees.\n\nThese statutory bodies are bound to apply the terms and conditions as laid down the regulations.\n\nThe statutory bodies are not free to make such terms as they think fit -and proper.\n\nRegulatiO'as prescribe the terms of appointmerit, conditions of service and procedure for dismissing employees.\n\nThese regulations in the statutes are descril:ied as \"'status fetters on freedom of contract\". The Oil and Natural Gas Commission A't in section 12 specifically enacts that the terms and conditions of the employees may be such as may be provided by' regulatiO'as.\n\nThere is a legal compulsion on the Commission to comply with the regulations.\n\nAny breach of such compliance would b': a breach of the regulations which are statutory provisions. In other statutes under consideration, viz., the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to secti0',1 12 of the 1959 Act the terms and conditions of employment and conditioas of service are provided for by regulations.\n\nThese regulations are not only binding on the authorities but also on the public.\n\nBroadly stated, the distinction between rules and regulatio, is on the one hand and administrative instructions on the other. is that rules and regulations can be made only after reciting the source of pc1wer whereas administrative instructions are 111ot issued after reciting source of power.\n\nSecond the executive power of a Stltte is not authorile<l to frame rules under Article 162. This Court held that the Public W<Jrks Department Gode was not a subordinate legilllation (See Gr. /.\n\nFernandes v. State of Mysore & Ors. (1967) 3 S.C.R. 636.\n\nThe rules under Article 309 on the other hand constitute not only . the constitutio,1al rights of relationship between the State and the Government servants but also establish that there must be specific power to frame rules and regulations.\n\nThe Additional Solicitor General submitted that regulations could not have the force of law because these regulations are similar to regulations framed by a company incorporated unde;· the Companis\n\nSumDEV V. BHAGATRAM (Ray, CJ,). 631\n\nAct.\n\nTI:e fallacy lies iQ. equa.tin& rules and regulatioM of a company with rules and regulations framed by a statutoty body. A cumpaay makes rules and regulations in accordance with the provisions of. the\n\nComnies Act. A statutory body on the other hand makes rule! aad regutations by . and under the powers c0'11ferred by the Slatutes creating such bodfos.\n\nRegullltions in Table-A of the Companies Act are. to be adopted by a company.\n\nSuch adoption is a statutory require ment.\n\nA company cannot come into existence unless it is incorporated\\ in accordance with the provisio,1s of the Companies Act.\n\nA company cannot exercise powers unless the company follows the statutory provisions.\n\nThe provision in the Registr_ation Act requires registration of instruments.\n\nThe provisions in the Stamp Act contain provisions for stamping of documents.\n\nThe non-compliance with statutory provisions will render a document to be of no effect.\n\nThe source of the power for. maKing rules and regulations in the case of Corporatior created by a statute is the statute itself.\n\nA company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accorda~1ce with the provisions ~e_ Act. It is not . a statutory body beC'ause it is not creatd 6y t~~ . .!'tatute. It is a body created in accordance with the provisienis of tfie statute.\n\nThe character of regulation has been decided by this Cow:t in several decisions. One group of decisions consists of S. R. '.fetrari v.\n\nDistrict Board Agra (1964) 3 S.C.R. 55); Life Insurance Corporation of India v.\n\nSunil Kumar Mukherjee (1964) .5 S.C.R. 528); Calcutta Dock l.Abour Board v. Jaffar Imam (1965) 3 S.C.R. 45$); Mafaelal Naraindas Barot v.\n\nDivisional Controller S.T.C. (1966) 3 .S.C.R. 40); The Sirsi Municipaliiy v. Cecelia Kom Francis (1973) 1 S.C.C. 409); U.P. State Warehousing Corporation v. C. K. Tyagi\n\n(1970) 2 S.C.R. 250) and Indian Airlines Corporation v. Sukhdeb Rai (1971 2 S.C.C. 192).\n\nIn Naraindas Barofs .case this Court held that the t.ermination of services by Corporation created by a statute without complying with the requirements of the regulations framed by the Corporation under the State Governr,1g conditions of the employees of' the Corporation was bad.\n\nThe reason is that the termination contravened the provi sions contained in the regulations.\n\nIn Tewari's case the termination of the employment of Tewari! was challenged on ..t.he ground that the resolution of the District Board termi1,1ating the services was invalid.\n\nThe High Court dismissed Tewari's application under Article 226 in limine.\n\nThis Court held that the Courts are invested with the power to declare invalid the act , of a statutory body, if by doing the act the .body has act.ed in breach of the mandatory obligation imposed by statute.\n\nThe District Boards Act conferred power upon.the State Government by section 172 to make rules under the Act.\n\nThe District Boad relied on a notification headed \"Regulatioa regarding dismissal, removal or reduction of officers and servants of District Board\". It was treated as a rule inasmuch as section 173(2) of the District Boards Act which conferred power to frame\n\nn gulations did not confer any power to frame powers regulating the exercise of the power of dismissal of officers of servants of the Board.\n\nThis. Court held that under the rules dismissal, reruoval or reduction of an officer or servant might be effected only after affording him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.\n\nIn Tewari's case this Court al§O said that the order of dismissal involving punishment must be exercised wn· sistently with the rules or regulations framed under the Statute.\n\nIn the Life Insurance Corporation case, there were regulatiions framed uader the Act.\n\nClause 4 ( 3) of the Regulations prescribed that in Judging a Field Officer's work, the Corporation shall observe the principles contained in the circular issued by the Managing Director on 2 December, 1957.\n\nParagraph 4(h) of the circular which became an integral part of the regulations inter alia stated that where the Committee of its own decided that th1: poor perform'ance of a Field\n\n~)tficcr'was not due to circumstances beyond his CO'tltrol or that he had made no efforts and not shown inclination or willinness to work, the services of such Field Officer would be terminated. There was also in existence a Field Officer's order which was issued in exercise of the powers co1tfem:d on the Central Government by section 11(2) of the Act.\n\nClause 10 of the order provided for penalities and termin~ion of s1rvice. The contentiO'a of the employee was that the termination of service could be brought about only under clause 10 of the Order.\n\nThis Court held that the regulations to be framed by the Corporation were not to be inconsistent either with the Act or with orders made U'adcr section 11 (2) of the Act.\n\nThe circular which was a part of the regulations under clause 4(3) thereof and clause 10 of the order were reconciled by this Court by stating that pamgraph 4(h) of the circular could be availed of to terminate the services of the ofikers but such termination was to be effected in the manner prescribed by clause 10.\n\nThe termination was not in accordance with either clause lO(a) or (b) of the order.\n\nTherefore, the termination ms invalid.\n\nThe Life Insurance case (supra) recognised regulations framed under the Act to have the force of law.\n\nIn the Indian Airlines Corporation case this Court said 1that there being no oblig:i.tion or restriction in the Act or the rules subject to which only the power to terminate the employment could be exercised the employee could not contend that he was entitled to a dedaration that the .termi'.lation of his employment was null and void.\n\nIn the fodwn Airlines Corporation case reliance was placed upon the decision of Kruse v. Johnson (1898) 2 Q.B. 91 for the view that not all by-Jaws have the force of law. This Court regarded regulation as the same thing as by-laws.\n\nIn Kruse v.\n\nJohnso11 the Court was simply describing tne effect that the county by-laws have on the publk. The observations of the Court in Kruse v. Johnwn t11at the by-law \"has the force of law within the sphere of its legitimate operation\" are not qualified by the words that it is so \"only when\n\n:iffec:tinrr the public or some section of the public .... ordering somethin~: to be done or not to be done and accomprinied by some sane, tion or penaltv for its non-observa',1ce.\" In this view a rej!Ulation is not a::i agreement or contract but a law binning the c0rporaihn. its officers, servants and the members of the public who come within the sphere of its\n\nSUKHDEV v. BHAGA'tRAM (Ray, CJ.)\n\noperations.\n\nThe doctrine of ultra vj.res as applied to statutes, rules and orders should equally apply to the regulations imd any other subordinate legislation.\n\nThe regulations made under power .conferred by the tatute are subordinate legislation and have the force and effect, if validly made, as the Act passed by the competent legislature.\n\nIn U.P. Warehousing Corporation and Indian Airllnes Corporation cases the terms of the regulations were treated as terms and cond.it1ons of relationship between the Corporation and its employees.\n\nThat dos not lead to the conclusion that they are of the same nature and qmtlity as the terms and conditions laid down in tfie contract of employment.\n\nThose terms and conditions not being contractual are imposed by one kind of subordinate legislation, viz., regulations made in exercise of the power conferred by tpe statute which constituted that Corporation.\n\nTerms of the regulations are not terms of contract. In the Indian Airlines Corporation case under section 45 of the Air Corporations Act, 1953, the Corporation had the power to make regulations nbt inconsistent with the Act and the rules made by the Central Government thereunder.\n\nThe Corporation had no power to alter or modify or rescind the provisiaas of these regulations at its discretion which it c0uld do in respect of the terms of contract that it may wish to enter with its employees independent of these regulations.\n\nSo far as the terms of the regulations are concerned, the actions of the Corporation are controlled by the Central Government.\n\nThe decisions of this Court in U.P. Warehousing Corporation and Indian Airlines Corporation are in direct conflict with decision of this Court in Naraindas Baro, t's casewhich was decided by the Constitution Bench.\n\nIn Sirsi Municipality v. Cecelia Kom Francis Tellis (supra), lhe dismissal was held to be contrary to rule 143 framed under section 46 of the Bombay District Municipalities Act. This Court held that in regard to the mastec-servant cases in the employment of the State or of other public or local authorities or bodies created under statute, the courts have decided in appropriate cases the dismissal to be invalid if the dismissal is contrary to rule of natural justice or if the dismissal is in violation of the provisions of the statute.\n\nWhere a State or 'a public authority dismisses an employee in violation of the mandatory procedural requirements on grounds which are not sanctioned or supported by statute the courts may exercise jurisdiction to declare the act of dismissal to be a nullity.\n\nThe ratio is that the rules or the regulations are binding on the authority.\n\nThere is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute.\n\nA regulation framed under a statute applir.s uniform treatment to every one or to all members of some group or class.\n\nThe Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to framo regulations fulter alia for the purpose of the duties and conduct and conditions of service of officers and other employees.\n\nThese regulations impose obligation on the statutory authorities.\n\nThe statutory authorities cannot deviate from the conditions of service.\n\nAny devi11rtion will be enforced by legal sanction of declaration by courts tll 10-470Sup Cl/7S\n\n'U11JIMI COUJ.T llPOITS\n\nilM'lidate actions in violation of rules and regulations. The emtence of rules ad ns under statute is to ensure regular conduct with a distinctive 4ttitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee\n\nwith oo option to vary the conditions. An ordinary individual iil1 a case of .master a.nd servant contractual relationship enforces breach of contractul terms. The remedy in such contractual re1'ationship of master and servant is damages because personal service is not capalble .of enforcement. In cases of statutory bodies, there is no perso11al\n\nelement whatsoever because of the impersanial charntcr of statutory.. bod.ici. In the case of statutory bodies it has been said that the ele- ment of public employment or service and the support of statute .require observance of rules and regulations. Failure to observe requirc- CAenta by statutory bodies is enforcr, d by courts by declaring dismissal in violation of rules and regulations be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken wider statutory powers, the Court would presume the existence of a. duty to observe the rules of natural justice and compliance with . m1es and regulations imposed by statute. On bebaH of the Smte it is contended that these Corporations cannot be said to be \"other authority\" contemplated in Article 12 for two 'Pfincipal reasons. Frrst, one CYf the attributes of a State is making faws. • The State exercises governmental functions and the eirecutive power of the State is 1:o-extensive with the legislative power of tbe State. Second, authority as contemplated in Article 12 mearu: a body of persons established by statute who are entitled as such body to command obedience and enforce directions issued by them 011 pain of pco&llty for violation.\n\nOn these grounds it was said that these corporatiom cannot make laws like a Smte and cannot enforce directioilli.\n\nl'be State , undertakes commercial functions in co.mbination with Governmental functions in a welfare State. Oovemmcntal function must be authoritative. It must be able to impose decision by or under law with authority. The demmt of authority is of a binding character. The rules and regulations 'are authoritative because these rules and regukltions direct and control not only the exercise of powers by the Corporations but also all . peraoos who deal with these corporations:\n\n1'his Court i1~ Rajasthan State Eeletricity Board, Jaipur v. Mohan Lal & Ors. (1967) 3 S.C.A. 377) said that an \"authority is a p111blic administrati~ agency or corporation havhig quasi-governmental powm and autborised to administer a revenue-producing public enterprise. 1be expression \"other authorities\" in Article 12 bas been\n\nbeid by this Collrt in the Rajasthan Electricity Board caso to be wide enough t'6 include within it every authority created by a statute aud within the territory of India, or under the control of the C'\"°\"'*uwwwt of India. This Court further said referring to earlier deciliom,, dsat tho expression \"O'ther. authorities\" in Article 12 will 'In\n\ncJudc: d c:omtitutional or statutory authorities on whom powers 1U\"e ccl8fuNd hJ Jaw. 1be State itself is envisaged under Artic,1c 298 u ...... the riaht to carry on trade ai.ad business. 1be State as\n\nSUKHDEV v. BHAGATRAM (Ray, C.J.) 635\n\ndefined in Article 12 is comprehended to include bodies created for tbt purpose of promoting economic interests of the people. The circumstance that the statutory body is required to carry on some activities of the nature of trade or c.ommercc does not indicate that the Board must be excluded from the scope of the word ''State.\" The Electricity Supply Act showed that the Board had power to give directions, the disoqedience of which is punishable as a criminal offence.\n\nThe power to issue directi0'.1s and to enforce compliance is ar, important aspect.\n\nThe concurring Judgment in the Rajasthat1. Electricity Board case said that the Board was invested by statute with extensive powers of control over electricity undertakings.\n\nThe power of the Board to make rules and regulations and to administ.er the Act was said to be in substance the sovereign power of the State delegated to the, Board.\n\nIn1 the British Boardcasting Corporation v. Johns (Inspector of Taxes) (1965) 1 Ch. 32) it was said that persons who are created to carry out governmental purposes enjoy immunity like Crown ser~\n\nvants.\n\nGovernment purposes include the traditional provinces of Government as well as nm1-traditional provinces of Government if the Crown has constitutionally asserted that they are to be within the province of government.\n\nThe British Boardcasting Corporation was held not to be within the province of government. because broadcasting was not asserted by the govemmcnt to be within the province of government.\n\nThe Wireless Telegraphy Act provided for regulation of wireless telegraphy by a system of licences.\n\nThe Court itave two reasons as to why the Broadcasting Corporation was not within the province of the government. If the Broadcasting Corporation was exercising functions required and created for the purpose of govern- ment, it is difficult to see why a licence W'as required to be issued to it.\n\nAgain, it is difficult to understand why in the event of an emergency powers should be given to the Postmaster-General to direct thal the broadcasting stations of the Corporation should be deemed to be in possession of Her Majesty if it be the fact that such stati0'11s are already used for purposes of exercising functions required and crC'ated for purposes of the Government.\n\nA public authority is a body which has public or statutory duties to perk rm and which performs those duties and carries out its transactions for the benefit of the public and not for private profit.\n\nSuch an authority is not precluded from making a profit for the public benefit. (See Halsbury's Laws of England 3rd. Ed. Vol. 30 paragraph 1317 at p.682). ·\n\nThe Oil-fields (Regulation and Devclopmeat) Act, 1948 defines \"oilfield\" as any area where any operation for the purpose of obtaining natural gas and petroleum, crude oil, refined oil, partially refined oil and any of the products of petroleum in a liquid or solid state, is to be or is being carried on.\n\nSection 4 of the said 1948 Act states that no mini'11g lease shall be granted after the commencement of he\n\nAct otherwise than in accordance with the rules made under the Act.\n\nSection 5 of the said 1948 Act confers power on the Central\n\n636 SUPllMB COURT REPORTS\n\n\nGovernment to make rules for regulating grant of mining leases ot prohibitir.g v.m.t of leases. Section 6 of the said 1948 Act CCY.ilfers po'WCl\" on the Central Government to make rules for the conservation and development of mineral oils. Mining gas includes natural gas and petroleum. Section 9 of the said 1948 Act states that any rule made under any of the provisions of the Act may provide that c.ny\n\ncontravention thereof shall be punishable with the imprisonment which may extend to six months or with fine which may extend to one th\"usand rupees or with both.\n\nThe Petroleum Concession Rule, l.949 says tl1at the Centr~ Government grants approval for searching, drilling a-ad prodm:ing petroleum and licences for exploring and prospecting. The Oil and Natural Gas Commission is given merely the duty to perform the leases.\n\nThe 1959 Act speaks in section 14 of the functions of the Commission and in section 15 of the powers of the Commission.\n\nThe runctions of the Commission are to plan, promote, organise a\"1d implement programmes for the development of petroleum resources and the production and sale of petroleum and petroleum products produced by it and to perform such functions as the Central Government may, from timie to time as1; ign to the Commission. The powers of the' Commission are such !lS may be necessary read expedient for the purpose of carrying out.the functions under the Act. The Government acquires land for the Commission. The acquisition is for public purpose. The Commission extract~ petroleum from the land. Entry No. 53 in Lisi I of the Seventh Schedule speaks of regulation and development of oilfields and m.i!oleral oil resource~; petroleum and petroleum produ1cts; othllr liquids and substances declared by Parliament by law to be dangeroualy inflammable. Entry No. 54 in List I speaks of regulation of mines and mineral development to the extent to which such regulation aad development under the control of the Union is decla:red by Parliament by law to be expedient in the public interest.\n\nSection 23 of the 1959 Act says that the Oil and Natural Gas Commission shall furnish to the Central Government returns :ind stau:ments ai; ld particulars in regard to proposed or existing programme for the development of petroleum resources and the prodtlction and sale of petroleum and petroleum products produced by the Commission as the Central Government may require. Section 24 of the 1959 Act. speaks of compulsory acquisition of land by i:he Commission.\n\nSection 25 of tlhe 1959 Act confers power on any employee of the Commission authorised by it to e.1ter upon any land or premises and there do such things as may be reasonably necessary for the purpose of la.wfully carrying out any of its works or to make survey, exami:nation or investigation preliminary or incidental to the exercise of powers or t]1e perfot'IIYc!tnce of functions by the Commission under the Act.\n\nThe employees of the Commission are deemed by sectio.1 27 of r.he 1959 Act to be public servants under section 21 of the Indian Penal Cock.\n\nThe Oil and Natural Gas Commission Act. 1959 is an Act to provide for the establishment of a Commission for the development of petroh:um resources and the productio.a and sale of petroleum and\n\nSl1JCHDEV v. BHAGATRAM (Ray, C.J.) 6.37\n\npetroleum products produced by it and for matters ronnected therewith.\n\nArticle 298 sliates that the executive power of the Union Md of each State shall extend to the carrying on of any trade or business and to the acquisition holding and disposal of property and the making of contracts.\n\nUnder Article 73 subject to the provisions of the Constitution, the executive power of the Uni9n shall extend to the matters with respect to which Parliament h-as power to make iaws: and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement.\n\nThe Union is competent to carry on .trade and business in mines and milleral resources.\n\nThe power of the Union is co-extensive with the legislative power of the Parliament.\n\nThe Oil and Natural Gas Commission is established for the development of petroleum resources and the production and sale of petroleum and petroleum products.\n\nThe exploitation of the resources is by the Union through the agency of the satutory commission.\n\nThe members of the Commission . are appointed by the Ce>atral Government. If they want to resign. resignation bas to be sent to the Central Government.\n\nTermination oI appointment of members is by the Centml Government.\n\nThe powers and functions of the Commission are those assigaed by the statute and such functions as the Central Government may assign.\n\nNo indutry which will use any of the gases produced by the Commission as a raw material shall be set up by the Commission without the previous appro, ml of the Central Government.\n\nThe capital of the Commission is what has already betn incurred by the Central Government as nonrecurring expenditure in connection with the existing organisation.\n\nThe Central Government may also provide to the Commission any further capital which may be required by the Crmmission for carrying on its business.\n\nThe Commissi0',1 may, with the previous approval of the Central Government borrow money. The budget is to be in such form as the Central Government may prescribe. The Commission may not re-approrriate wilhout the previous approval nf the Centrnl Government.\n\nThe reports, accounts are to be audited by the Comptroller and Auditor-General of India and these are not only to be forwarded . to the Central Government but a,.e -also to be laid before the Parliament.\n\nThe audit report is also to be before the Parliament. Any land reuired by the Commission is to be acquired under the Land Acquisition Act , as if it were required by a company. The Commission is empowered to enter upon any land or premises. The dissolution of the Commission is by the Central Government.\n\nAll these provisions indicate at each stage that the creation, composition of membershio, the functions and P<'Wers. th~ financial powers, the audit of accounts, the returns, the capital, the borrowing powers, the dissolution of the Commission and acquisition of and for the purpose of the company and the powers of entry arc all authority ::ind agency of the Centra! Government.\n\nThe Life Insurance Act is an Act to provid~ for the nationalisation of life insurance business in India by transferring all such business to the Corporation established for the puroose •and to provide for the regulation and control of the business of tie Corporation and for matters connected therewith or incidental thereto.\n\nOn the appointed day viz.\n\n1 July, 1956, all assets and liabilities appertaining to the controlled A business of all insurers became transferred to and vested in the Corporation. The service of existing employees of insurers was transferrod to the Corporation. It became the duty of very person in possession, custody or control of property appertainir:.g to the controlled business of an insurer to deliver the same to the Corporation forthwith.\n\nThe Corporation was empowered to re<luc1~ the amounts of imurancc under contracts of life insurance in such nranner and subject to such condi B tions as it th9ught fit. In the discharge of functions under the Act, the: Corporatic>n is guided by directions ii1 matters of policy involvins public interest as the Central Government may give to it. If any question iarises whether a direction relates to a matter or policy invc1lving public interest, the decision of the Central Government shall be final.\n\nThe Corporati<M is to submit to the Central Government a11 .acc count of activi.ties during the financial year. The Corporation has the exc:lusive privilege of carrying on life insurance business in 1ndia. On and from the appointr, d day, none but the Corporatioa can carry on life insurance business in India. The sums assured by policies issued by the Corporation including bonuses shall be guaranteed as to payment in cash by the Central Government. No suit, prosecution or other legal proceedings shall lie against any member or employe:e of D the Corporation for anything which is in good faith done or intended to be done under the Act.\n\nThe provisions of the Life Insurance Corporation Act amply 'sta blish that the Corporation has the exclusive privilege of carryini~ on life insurance business. The policies are guaranteed by the Central Government. If profits accrue from any business other than life: in- E surance busi1ness then after making provision for reserve\"> and eother . matters, the balance of profit shall be paid to the Central Government.\n\nThe: report of the activities of the Corporation is to be submitted to the Central Govemment.\n\nThe origin~! capital of the Corporation is five crores of rupees provided by the Central Government. The Central Government m'ly L\" reduce the capital of the Corporati0111. The Corporation may ask for .. relief in respect of certain transactions of the insurer whose controlled business has been transferred to the Corporation. The relief is granted l>y the Tribunal. The Tribuml is constituted by the Central Gov1rn rnent. The Central office of the Corporation shall be at such tllac1~ as !he CC',1tral Government may specify.\n\nIn the digcharge of functions\n\nundir the Act, the Corporation shall be guided by such direction!; in matters of policy involving public interest as the Central Governmient G may direct. If any question arises relating to a matter of policy involving public irHcrest, the decision of the Central Governme.1t shall be final..\n\nThe accounts of the Corooration shall be audited by auditors who will be appointed with the .. previous approval of the Ceutral Government. The auditors shall submit the report to the Corporation and shall also forward a copy of the report to the Central Government.\n\nU If as a result of any investigation undertaken by the Corporation any surplus emerges, ninety-five per cent of such surplus or such higher\n\nSUXHDBV v. BHAGATRAM (Ray, CJ.) 639\n\npercentage thereof as the Central Government may approve shall be allocated to or reserved fur the life insurance policy holders of the Corporation and after meeting the liabilities of the Corporation the remainder shall be paid to the Central Government or if that Govern-- ment so direets be utilised for such purposes and in such manner as that Government may determine. If profits accrue after making provision for reserves 'alld other matters, the balance shall be paid to the Central Goverillilent. The Central Government shall cause the report of. the auditors, the report of the actuaries and the report giving an account o( the activities of the Corporation to be laid before the Parliament. The provisions of the Companies Act do not apply to the Corporation with regard to winding up. The Corporation cannot be placed in liquidation except by an order of the Central Government.\n\nThe structure of the Life Insurance Corporation indicates that the Col')'Oration is an agency of the Government carrying on the exclusive busmess of life insurance. Each and very provision shows in no uncertain terms that the voice is tl:tat of the Central Government and the hands are also of the Central Government.\n\nThe Industrial Finance Corporation is a body corporate. The authorised capital of the Corporation shall be ten crores of tupeei divided into twenty thousand fully paid up shares of five thousand rupees each. Ten thousand shares of the total value of five crores of rupees shall be issued in the first instance. The remaining shares may be issued with the sanction of the Central_ Government.\n\nOf the capital issued in the first instl'llce, the Central Government and the Reserve Bank of India shall each subscribe for two thousand shares.\n\nScheduled banks may subscribe for two thousand five hundred shares, Insurance companies, investment trusts and other like financial institu-_ tions for two thousand five hundred shares and co-operative banks for ooe thousand shares of the Corporation. It is significant that ordinary citizens cannot be shareholders. All shares of the Corporation held by Lhe Central Government and the Reserve Bank of India shall stand trimsferred to and vest in the Development Bank.\n\nAs compensation therefore, the Development Bank shall pay to the Central Government and to the Reserve Bank respectively the face value of th~ shares htld by that Government and by that Bank. The shares of tl1e CorporatiQn shall be guaranteed by the Central Government as to the re-payment of the principal 1md the payment of the annual diVidend at such minimum rate as may be fixed by the Central Government by notification.\n\nThe Development Bank means the Industrial DeYelopment Bank of.\n\nIndia establisf)ed under the Industrial Development Bank of India Act, 1964. .\n\nThe Otairman of the Corporation shall be appointed by the C.Cnlral Gcvemment.\n\nFour Directors are nominated by the Development Bank; two directors are nominated by the Central Government; twodirectors are elected by Scheduled Banks; two directors are elected by shareholders of the Corporation other than the Development Bank, Scheduled Banks and the-_ co-operative banks; two directors are elected by co-operative banb. The Central Government may remove the\n\nChairman. ·\n\nWhere any industrial concern which is under a liability to the Corporation makes any default in re-ayment or other:wise fails to comply with the terms of the agreement WJth the Corporation, the Corporation\n\nshall have the right to take over the management or possession or both of the concern as well as the right to transfer by way of lease or sale\n\nand realise the property, pk.dged, mortgaged, hypothecated or assiied to the Corporation.\n\nThe Corporation shall furnish to the Central Government statement of assets and liabilities at the close of the year together with profit and loss account and a report of the working of the Corporation and the repurt shall be published in the Official Gazette and shall be laid before Parliam1mt.\n\nNo provision of law relating to the winding up of companies or corporations shall apply to the Corporation. The Corporation shall not be placed in liquidation save by order of the Central Government.\n\nThe superintendence and the affairs of the Corporation shall be entms1ed to a Board.\n\nIn the discharge of futnctiom:, the JBoard shall be guided by the Developmen1t Bank.\n\nIf any dispute arises between the Development Bank and the Board, the dispute shall be referred to the Central Govemment whose decision shall be final.\n\nThe Central Government shall have the power to supersede the Board and appoint a new Board in it:s place to function until a properly constituted Boru-d is set up.\n\nThe Corporation may invest its funds in the securities of the Central Government or of any State Government mid may with the approval of. the Central Government contribute to the initial capital of .the Unit Trust of India. The Corporation may also subscribe to or purchase the shares of any financial institution which the Cei,1tral Government in consultation •vith the Development Bank may notify in this behalf.\n\nThe Corporation may issue and sell bonds and debentures.\n\nBond~. and debentures of tl1e Corporation sliall be guaranteed by the Central Government as to the re-payment of the principal arid the payment of interest. ·\n\nThe Central Govemment may issue directions to auditors requiring them to report to it upon the adequacy of measures taken by the Corporation for the protection of its shareholders and creditors. The Cen1ral Government may appoint the Comptroller and Auditor General of India to examine and reoort upon the accounts of the Corporatify,, and e:penditure. Every audit report shall be forwarded to the Central Government and the Government shall cause the same to be laid before both Houses of Parliament.\n\nThe Central Government may decide to acquire the shares held by the shareholders other than the Development Bank.\n\nThe harehoHers shall be paid for the shares so acquired an amount equal to the paid up value of the shares tpgether with a premium calculated at the rate of one per cent of the paid up value for every year from the date of issue to the date of acquisition subject to a maximum of ten per cent.\n\nAfter the acquiition of the shares, the Central Government shall tram:- fer the shares to the Development Bank, that Bank paying an amount\n\nSUKHDEV v. BHAG~TRAM (Ray, C.J.) 641\n\nA equal to the amount paid by the Central Government for such acquisition.\n\nAfter such acquisition, the Central Goven11i1cnt may direct that the entire undertaking of the Corporation shall stami transferred to and vest in the Development Bank.\n\nThese provisions of the Industrial Finance Corporation Act show that the Corporation is in effect managed and controlled by the Central B Government.\n\nThe Oil and Natural Gas Commission is owned by the Government. It is a statutory body and not a company. The Commission ha~ the exclusive privilage of extracting petroleum. The management is by the Government. It can be dissolved only by the Governmeht.\n\nc The Life Insurance Corporation is owned by the Government The life insurance business is nationalised and vested in the Corporation, No other insurer can carry on life insurance business. The management is by the Government. The dissoluti'on can be only by the Government.\n\nThe Industrial Finance Corporation is under the complete control and management of the Central Government. Citizens cannot be shareholders. 'certain specified institutions like Scheduled Banks, Insurance Companies, Investment Trusts and Co-operative Banks may apply for the shares. The Central Government may acquire shares hdd by shareholders other than the Development Bank. After uch acquisition, the Government may direct that the entire undertaking of the Corporation shall be vested in the Development Bank. The Corporation cannot be dissolved except by the Government.\n\nIn the backgound of the provisions of the three Acts under consideration, the question arises as to whether these corporations can be described to be authorities with the meaning of Article 12 of the Constitution. In the Rajasthan Electricity Boord case it was said that the power to give directions, the disobedience of which must be punishable as a criminal offence would furnish one of the reasons for characterising the body as an authority within the mean ing of Article, 12. The power to make rules or regulations :ind to admini£ter or enforce them would be one of the elements of authoritie~ contemplated in Article 12. Authorities envisaged in Art!cfo 12 are described as instrumentalities of State action. On behalf of the State it was contended that the Oil and Natural Gas Commission as well as Industrial Finance Corporation was not granted immunity from taxation and therefore the liability to be taxed would indicate that the Corporation was not a State authority. Reference is mad~ to Article 289 which speaks of exemption of property and income of a State from Union taxation. The liability to taxation will not detract from the Corporation being an authority within the meaning of Arcicle 12.\n\nArticle 289 empowers Union to impose tax in respect of trade or business carried on by or on behalf of a State.\n\nThe Oil and Natural Gas Commission Act confers power of entry on employees of the Commission upon any land or premises for the purpose of lawfully carrying out works by the Commission. Th!l mem-\n\n642 SUPlU!MB COUl.T RBPOllTS [1975) 3 11.C.ll.\n\nbc:rs and employees of the Commission are public servants within the meaning of &eetion 21 of the Indian Penal Code. The Commission enjoys protection of action taken under the Act.\n\n. The Life Insurance Act provides that if any person lawfully withholds or fails to deliver to the Corporation any property which has been transfen:ed to and vested in the Corporation or wilfully applies them to purposes other than those expressed or authorised by th(~ Act, he: shall, on the complaint of the Corporation be punishable with the ' imprir.onment, which may extend to one year or with fine which may extend to one thousand of rupees or with both. The O>rporation also\n\n1 enjoys protec1; ion of action taken under the Act. ' The Industrial Finance Corporation Act states that whoever in any bill of lading, warehouse receipt or other instrument given to the ., C.orporation whereby security is given to the Corporation for 11c:commodation granted by it wilfully makes any false statement or knowingly permits any false statement to be made shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both. Further whoev(:r without the consent in writing of the Corporation uses the name\n\nof the Corporation in any prospect or advertisement shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. 1 Th.e Corporation enjoys protection of action taken under the Act. A , company inoorporated under the Indian Companies Act does not . 1 enjoy these privileges.\n\nFor the foregoing reasons, we hold that rules and regulations framed by the Oil and Natural Gas Commission, Life lnsuranee C'.01·\n\nporation and the Industrial Finance Corporation have the force of law. The employees of these statutory bodies have a statutory status ancl they are entitled to declaration of being in employment, when the!r dismissal or removal is in contravention of statutory prov.isions. By way of abundant caution we state that these emplovees are not ser vants of the Ui:i.ion or the State. These statutory bodies are \"authorities\" within the meaning of Article 12 of the Constitution.\n\n In Civil Appeal No. 2137 of 1972, the declaration granted by the High C-Ourt that the order removing Bhagatram Sardarsing Raghuvansi\n\nfrom service is null and void and that he continues in service is upheld. me. writ of mandamus issued by the High C-Ourt is also upheld.\n\nIn Civil Appeal No. 1655 of 1973, the writ of mandamus granted by the Hjgh Court is upheld.\n\nIn Civil Appeal No. 1879 of 1972, our conclusion is that the Corporation is an authority within the meaning of Article 12 of the Contitution for the reasons given in this judgment. The conclusion of the High Court that the regulations have not the foree of law is set aside.\n\nThe conclusion of the Hil!:h Court that Corporation should not be permitted to enforce the regulations mentioned in clas (1) and (4) of Reg111lation 25 iii upheld.\n\nJ:.\n\nSUKHDEV v. BHAGATRAM (Mathew, J.) 643\n\nIn Civil Appeal No. 115 of 197 4, the judg1nent of the High Court is set aside. The Finance Corporation is an authority within the meaning of Artic; e 12. The regulations of the Corporation have the force of law. The conclusion of the High Court that the Association is not entitled~ raise a plea of discrimination on the basis of Article 16 is set aside.\n\nThe appeals are disposCd of accordingly.\n\nThe parties will pay and bear their own costs in all these appeals.\n\nMATHEW, J.-The question whether a public corporation of tho nature ofl Oil and, Natural Gas/ Commission, Life Insurance Corporation or Industrial Finance Corporation is a 'state' within the\n\nmeaning of Article 12 of the Constitution is one of far reaching impQrtance. ·\n\nThe relevant provisions of the Oil and Natural Gas Commission Act, 1939, have been analvsed in the judgment of my Lord the ChieC Justice and I do not think it necessary to set them out here.\n\nIn Ra; asthan Electricity Board v. Mohan Lal(') this Court had occasion to consider the question whether the Rajasthan Electricity Board was an authority within the meaning of the expression 'other authorities\" in Article 12 of the Constitution. Bhargava, J. delivering the judgment for the majority pointed out that the exl?ression \"other authorities\" in Article 12 would include all constitµtional and statutory authorities on whom powers are conferred by law. The lcamd judge also said that if any body of persons has authority to issue directions, the disobedience of which would be punishable as a criminal offence, that would be an indication that that authority is 'state'.· Justice Shah who delivered a separate judgment agreeing with the couclusion reached by the majority preferred to adopt a slightly different meaning to the words \"other authorities\". He said that authorities, constitutional or statutory, would fall within the expression 'state' as dewed in Article 12 only if they are invested with sovereign power of the State, namely, the power to make mies or regulations which have the force of law.\n\nThe test propounded by the majority is satisfied so far as the Oil and Natural Gas Commission (hereinafter referred to as 'the Commi:;-\n\nsion) is concerned as s. 25 of the Oil and Natural Gas Commission Act (hereinafter referred to as 'the Act') provides for issuin.e binding_ issue binding directions to third parties not to prevent the employees G of the C0mmission from entering upon their propertv if the Commisliion so directs. In other words, as s. 25 authorises the Commission to issue bindin!l: directions to third parties not trJ prevent the employee> of the Commigion from entering into their land and a~ diobediencc of such directions is punishable under the relevant provision of the Indian Penal Code since those employees are deemed to be public servants under s. 21 of the Indian Penal Code by virtue of s. 27 of tllc H Act, the Commission is an 'authority' within the meaning of the expres.sion \"other authorities\" in Article 12. ·\n\n\n'Iltough this would be sufficient to make the Commission a 'state' according to the decision of this Court in the Rajasthan Electricity Board Case (supra), there is a larger question which has a direct b.ar- ing so far as the other two Corporations are concerned viz., whether, despite the fact that there are no provisions for issuing bindinj directions to third parties the disobedience of which would entail pe:nal consequence, the corporations set up under statutes to carry on business of public Importance or which is fundamental to the life of the people can be considered as 'state' within the meaning of Article 12 That Article reads .\n\n\"In this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the Le!rlslature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.\"\n\nIt is relevant to note that the Article does not define the word 'stat:::'.\n\nIt only provides that 'state' includes the authorities specified therdn.\n\nThe question whether a corporation set up under a statute to carry on a business of public importance is a 'state' despite the fact that itha~ no power to issue binding directions has to be decided on other considerations.\n\nOne of the greatest sources of our strength in constituti'Onal law is that we adjudge only concrete cases and do not pronounce principles in the abstract.\n\nBut there comes a moment when the process of empiric adjudication calls for more rational and realistic disposition than that the immediate case is not different from preceding ca; cs.\n\nThe concept of state has undergone drastic changes in recent years.\n\nToday state cannot be ccmceived of simply as a coercive machinery wielding the thunderbolt of authority. It has to be view- .; d mainly as a service corporation.\n\n\"If we clearly grasp the character of the state as a social agent, understanding it rationally as a form of service and not mystically as an ultimate power, we shall differ only in respect of the limits of its ability to render service.\"\n\n(see Mac Iver, \"The Modern State\", 183).\n\nTo some people state is essentially a: class-strut:ture, 'an organization of one class dominating over the other classes'; others regard it a~! an organisation that transcends all classes and stands for the\n\nwhol~ community.\n\nThey regard it as a power-system. Some view it entirely a~ a ieeal structure, either in the old Austinian sense which mad<: it a relationship of governors and g(Jverned, or, in the language of modem jurisorudence, as a community 'urganized for action under\n\nle.~! rules'.\n\nSome re:wrd it as no more than a mutual insurance society, others as the very texture of all our life.\n\nSome class the state as a tJrcat 'cornnration' and others consider it as indistinguishable from society itself('),\n\n(1) Be~ Mac. Iver, \"The Modern State\", pp. 3-4.\n\nSVKHDEV v. BHAGATMM (Mathew, /.) 645\n\nPart IV of the Constitution gives a picture of the services which the state is expected to undertake and render. for the welfare of the: people.\n\nArticle 298 provides that the executive power of the Union and State extends to the carrying on of any business or trade.\n\nAs I said, the question for consideration is whether a public corporafron set up under a special statute to carry on a business or service which PEr!!::ment thinks necessary to be cmrid on in the interest of the naticm is an agensy or instrumentalitv s£ th.~ Si8.1:c and w0uld be subje<::t to the Emitatio11s expressed ::i Artie]~ l 3(2) of the Constitution.\n\nA state is an abstract e:tity. It can only act throng:h the instrumentality Oi a(!ency of natural or juridical persons.\n\nTherefore, there is nothing strnll.l'e in the notion of the state acting through a corporation ~.nd making it an agency or inslrumentality vf the State.\n\nThe chartered corporations of the 17th, 13th :rnd 19th centuric, were expected, perhaps req\\1ired, to perform stated cluties to the community like running a ferry, founding a colony o• establishing Ea~.: [ndian trade.\n\nPerformance of these functions and securing whatever revenue the enterprise made to the Crown were the primary reasons why a charter was granted. Corporation in early English Law were in fact, and in legal cognizance, a dc•,1ice by which the political state got something done.\n\nThey were far nore like the bodies corporate we call 'public authorities' today.\n\nFew in the 17th or 18th century would have disputed that such a corporation was an agency of the state(').\n\nThe Supreme Court of the United States in McCullough v. Maryland(2) held that the Congress has power to charter corporations as incidental to or in aid of governmental functions.\n\nSo far as federal corporatioilS are concerned, they are, by hypothesis, agencies of government. With this premise it would follow that action of a federally chartered corporation would be governed bv the constitutional limitation imposed on an agency of the Federal Government(3).\n\nThe tasks 'Of government multiplied with the advent of the welfare state and consequently, the framework of civil service administration became increasingly insufficient for handling the new tasks 1hich were often of a specialised and highly technical character. .1!, t the same time, 'bureaucracy' came under a cloud.\n\nThe. distrust of government by civil service, justified or not, was a powerful factor in the development of a policy of public administration through separate corporations which would operate largely according to business principles and be separately accountable.\n\nThe public corporation, tfterefore, became a third arm of the Government. In Great Britain, the conduct of basic industrie~ through giant corporation is now a permanent feature of public Ek.\n\n----(~~-;;-!lcnerii\\\\y-;'The Modem Corporation and Private Property\". Berle &\n\nMeans, pp. 119-128.\n\n(2) 4 Wheat. 315 (US 1819).\n\n(3) see Adolf A. Berle, \"Constitutional Limitations on Corporate Activity ..\n\nProtection of Personal Rights from Invasion through Economic Power\", 100 Uni1. of Pennsylvania Law Rev. 933.\n\n64& SUPllBME COUIT !\\!PORTS (1975] 3 s.c.1.\n\nA public corporation is a legal entity established normally by Parliament and always under legal authority, usually in the form of a special statute, charged with the duty of carrying out specifted governmental functions in the national interest, those fnnctions bein~ confined to a comparatively restricted field, and subjected to control by the executive, while the corporation remains juristically an independent 1entity not directly responsible to Parliament(').\n\nA public <..\"'Qrporation is not generally a multi-purpose authority but a functional organisation created for a specific purpose. It has ger.eral!y\n\nno shares or shareholde1'8.\n\nIts responsibility generally is to Government.\n\nIts administration is in the hands of a Board appointed by the competent Minister. The employees of public corporation are not civil servants.\n\nJt is. in fact, likely that in due course a special type of training for speeialized form of public service will be developed and the status of the personnel of public corporation mav more\n\nand more closely approximate to that of civil service without forming vart of it. In so far as public corporations fulfil public tasks on behalf of government, they are public authorities and as such subject to control by government.\n\nIn France, \"An enterprise publique is an enterprise the whole or the majority of whl'.lse capital belongs to the State or other ;:-ublic\n\nagencies. By reason of its industrial C'r commercial activities it is basically subject to private Jaw (and i:articularly to commercial law) ; is are private enterprises, but, because of its public nature, it find~ itself subj:ected to a certain degree of dependence on and control by public authorities\" (1).\n\nThe motivation for the creation of public corporation naturally plavs much lar!!er part in under-developed and poor countries than in industiially advanced countries. This accounts for the emergence of public corporations and the present significance of public enterprise carried on by them. The Government of India resolution on industrial policy dated April 6, 1948 stated, among other things, that \"management of state enterprise will as a rule be through the medium of public ccmioration under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this. The. Government of India Resolution on Industrial Polic:y dated April 30, 1956 stated : (1)\n\n\"Aa:ordingly, the State will progressively assume a predominant amt direct responsibility for setting up new industrial undertakin~ and for developing transport facili- .ties. It will al90 undertake State trading on an increasing\n\ns<:ale.\" The Constitution wa, framed on the theory that limitation should exist on the exercise of power by the State. The assumption was\n\n(I) sec Gamer : \"Public Corporations in the United Kingdom\" in \"Govcmmcnt Enteiµrisc\" ed. W. Friedmann & J.P. Garner, p. 4. !ii\n\n(2) seo \"Government E.oterprisc\", cd, W. Friedrnann & J. F. Gamer, pp. 107-108.\n\n(3) ~' \"Government in Business\", S .s. Khcra, p. 368 & p. 373.\n\n- A\n\nSUDIDIV v. l~ATIAM. (MGIJllw, J,) 6'1\n\n.that the State alone was competent to wield power. But the esaett\n\ntiol problem of liberty and equality is one of freedom from arbitrary . restriction and discrimination whenever and however imposed. Th•\n\nConstitution, therefore, should, wherever J>0S5ible, be so construed as to apply to arbitrary application of power against individuals by centres of power. The emerging principle appears to be that a public corporation being a creation of the State is subject to the constitutional limitation as the State itself.\n\nThe pre-condition& of this are two, namely, that the corporation is created by State, and, the existence of power in the corporation to invade the constitutional right of individual.\n\nThe advocates of pluralism like Laski and Dr. Figgis pleaded for recognition of social groups within the state in mitigation of the legal and ideological, deification of the State. Today, probably the gia, nt corporations, the labour unions, trade associatiuns and other powerful organisations have taken the substace of sovereignty from the state.\n\nWe are witnessing another dialectic process in history namely, that th•\n\nsovereign state having taken over all effective legal and political power from groups surrendered its power to the new massive social groups('). The growing power of the industrial giants, of the labour unions and of certain other organiz.ed groups, compels a reasses&- ment of the relation between group power and the modem state on the hand and the; freedom of the individual on the other. The corporate organisations of business and labour have long ceased to be\n\nprivate phenomena.\n\nThat they have a direct and decisive impact on the social, economic and political life of the nation is no longer a matter of argument. It is an undeniable fact of daily experience.\n\nThe challenge to the contemporary lawyer is to translate the social\n\ntransformation of these organisations from private associations fo public organisms into legal terms. In attempting to do so, we haYt to recognize that both business and labour currently exercise vast powers. First, they have power over the millions of men and women whose lives they largely control as employees or as members. Second, they exercise power more indirectly, though not less powerfullv, over the unorganized citizens whose lives they largely control through standardized terms of contract, through price policy, through the po of production and the' terms and conditions of labour.\n\nLast, they exercise oontrol over the organi7.ed community, represented by th• organs of State, in a multitude of ways; direct lobby pressures, con\" trot over election and policies of the elected representatives of the peoples and far-reaching control over the mass media ot communicatfon.\n\nIn this sense 'government' or 'law-making' by private groups is today an irTcvemOle fact(•).\n\nGenerally speaking, large corporationa have power and this power does not merely oome from the statutes creating them. They acquire power because they produce goods or !el'Vices upon which the community rcmJes to rely. Jbe methods by which these corporations pro- H duce and the distribution made in the coune Of their production by\n\n(1) See W. Friedmann, ''I.aw ill a ChanciOI Society\",\" 298:\n\n(2) eee \"Gorporalle Paws, Gow:mment by Private GroupS and the law'\n\n57 Colmnbia L'w Rev .156,'at IS6, 176-177).\n\nway of wages, dividends and interest, as also tht:: profit withheld and used for further capital progress and the manner in which and the conditions under which they employ their workmen and staff are vital botl1 to the lives of many people and to the continued supply !me of thL' ccuntry. Certain impcrtives follow from this.\n\nBoth big busin<:ss and big labour unions exercise much quasi-public authority.\n\nThe problems po, cd by the big corporntion is the pro(ec; ic.n •, if the individual rights of the crnploye(; S. Sug;;; csticns are bcin:~ mack trnt the corporate organisr.tions o[ big busi,1ess and labour ar~ no lo:iger private phmJmcna; that they arc public organisims a:1d that constitutional and common law rcstrictioris imposed upon State agencies must be impo.';:::<l upon them.\n\nThe go'.'Crning power wherever located must be subject to the fundamental constitutional limitations. The need to subject the power centres to the control of constitution require an expansion cf the concept cf State action. The historicai trend in America of jurlicial decisions bas been that of bringing more and more activity within the\n\nreach of the limitations of the Constitution. \"The next step would be to draw private governments into the tent of state action. This is not a particularly startling proposition, for a number of recent cases have shown that the concept of private action must yield to a conception of state .action where public functions are being performed\"(').\n\nIn Marsh v. Alabama(2 ), a corporation owned a 'company town'.\n\nMarsh, a Jehovah's \\\\tness offc, red his pamphlets preached his doctrine on one of the town comers. He was arrested for trespassing by one of the company guards, was fined five dollars and the case went all the way up to the Supreme Court.\n\nOn straight property logic, Marsh, of course was trespa<sing;; he \\Vas an unwanted visitor on company's re1al estate. But, Court said, operation of a town is a public func .. tion.\n\nAlthough private in the property sense, it was public in the functional sense. The substance of the doctrine there laid down is that where a corporation is privately perfom1ing a 'public function' it is held to the constitutional standards regarding civil right and equal pirotection of the laws that apply to the state itself. The C.Ourt held\" that administration of private property such a town, though privately carded on, was, nevertheless, in the nature of a '.public function', that tlte private rights of the corporation must thereforebe-exercised within constitutional limitations, and the conviction for trespass was reversed.\n\nBut how far can this expansion go? Except in very few cases, 'Our Constitution does not, through its own force, set any limitation upon private action. Article 13 (2) provides that no' State shall make any law which takes away or abridges the right guaranteed by Pa.rt III.\n\nIt is the Stat<~ action of a particular character that is prohibited. fodividual invasion of individual right is not, generally speaking, covered by Article 13(2). In other words, it is against State action that fundamental right!; are guaranteed.\n\nW1'0ngful individual acts unsupported -·--------\n\n(1) see Arthur S. Miller : \"The Constitutional Law of the 'Security State'.\".\n\nJO Stanford Law Rev. 620 at 664.\n\n(2) 326 U.S. 501 (1946). _\n\nSUKHDEV v. BHAGATRAM (Mathew, J.) 6 4 9\n\nby State authority in the shape of laws, customs, or judicial or executive proceeding are not prohibited. Articles 17, 23 and 24 postulate that fundamental. rights can be violated by private individuals and that the remedy under Article 32 may be available against them.\n\nBui. by and large, unless an act is sanctioned in some way bv the St:1tc, the action would not be State action. In other words, until some law is passed or some action is taken through officers or agents of the State, there is no action by the State. In the Civil Rights Cases (I) Bradley, J. speaking for the majority, took this view of the 14th Amendment.\n\nThat Amendment provides, : \"No State shall make or enforce any law which shall abridQc the privileges or immunities of citizens of the United Sta1cs; nor shall any State deprive any pers.on of life, liberty or property without due process of law; , nor deny to any person within its jurisdiction the equal protection of the laws.\"\n\nOn the other hand, Justice Harlan tried to justify the imposition of civil liability for racial discrimination, effected not only by the normal officers of the State, but also by pri; vac individuals.\n\nHe perceived State action in rules and practices of hotels, inns, taverns, rail roads and places of amusement. He said that inn-keepers arc exercising a quasi-public employment and that law gives them special privileges and they are chairged with certain duties and responsibilities to the public. As t'O public cmveyances, he read the law of common carriers to require the performance of public duties, , and that no matter who is the agent or what is the agency, the function to be performed is that of 'State'. The investiture of rail road with power of eminent domain made the function of the rail road corporation a public function.\n\nI think the later decisions of courts in the~ U.S.A. follow the lead given by Justice Harlen in his dissenting Judgement.\n\nSeveral tests have been propounded to find out whether an action is private or state action..\n\nThese decisi'On do not rest on the. basis that the entity or organization must wield authority in the sense it !lllust have power to issue commands in the Austinian sense, or that it must have the sovereign power to pass laws or regulations having the force of law.\n\nDoes any a.mount of state help, however inconsequential, make an aci something more than an individual act ? Suppose, a privately owned and managed operation receives direct financial aid from the State, is an act of such an agency an act of State ? It would be difficult to give a categorical answer to this question.\n\nAny operation or purpose of value to the public may be encouraged by aporopriation of public money and the resulting publicly supported operation can be characterized as a state operation.\n\nBut such a rule would seem to go 1\\) the extreme. There seems to be no formula which would provide the correct division of cases of this type into neat cateeorics of State action and private action.\n\nSome clue however, to the considerations which might impel the court in one directi'on or the other mr.y be obtained from an examination of the cases in this area.\n\nThe decisions of the State courts in U.S.A. seem to establish that a private agency, if supported by public money for its operation would be 'state'.\n\n(1) 109 u. s. 3. l l-470SCI/75\n\n, But in all these cases, it has been found that there was an element of control exercised by the State. Therefore, it may be state<f generally that State financial aid alone does not render the institution receiving such aid a state agency. Financial. aid plus some additional factor might lead to a difl'erent conclusion. A mere finding of state control also is not determinative of the question, since a state has considerable measure of control under its police power over all types of busim .. ss operations. It is not possible to assume that the panoply of law and , authority of a state under which people carry on ordinary business, or their private affairs or own property, each enjoying equality in terms of legal capacity would be extraordinary assistanc_e.\n\nA finding I of state financial support plus an unusual degree of control over the l manageme, nt and policies might lead one to characterize an operation as state action.\n\nAnother factor which might be. considered is whether the operation 1 fa an important public function.\n\nThe combination of state aid and . the furnishing of an important public service may result ii:t a coni clusion that the operation should be classified as a state agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a government agency, then even the presence or absence of state financial aid .might be irrelevant in making a finding of state action. . If the function does not fall within such a description, then mere addition of state money would not influence the conclusion. 1 ' The state may aid a private operation in various ways other than by direct financial assistance. It may give the organization the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes. All these are re:Ievant in making au assessment whether the operation is private or savours of 1itate action (1).\n\nAn important case on the subject is Kerr v. Enoch Pratt Free Lib rary( 2 ).\n\nThe library system in question was established by private donation in 1882, but by 1944, 99 per cent of the system\"s budget was supplied by the city; title to the library property was held by the city; employees were paid by the city pay-roll officer; and a high degree of budget control was exercised or available to the city government.\n\nOn these facts the Court of Appeals required the trustees managing the system to abandon a discriminatory admissions policy for its library training courses(3). '\n\nDorsev v. Stuvvesant Town Corporation(') related to die problem raised by discriminatory action by a private agency receiving state financial aid.\n\nPursuant to New York's redevelopment laws, the Metropolitan Life Insurance Company organized a redevelopment corooration to participae in a plan to construct housing.\n\nBy an investm.:, nt\n\n(I) se~ gnera!ly \"The Meaning of State Action\", LX Columbia Law Rev. 1083. .\n\n(2) 149 F. 2d 212 (4th cir.) cert. denied, 326 U.S. 721 (1945).\n\n(3) See LX Columbia Law Review 1083, at 1103.\n\n(4) 299 N. Y. 512.\n\nSUKHDEV v. BHAGATRAM (Ma:hew, J.) 6 51\n\nof some $ 90,000,000, the company constructed a complex of apartments capable of housing 25,000 people.\n\nThe power of eminent domain was used to acquire the necessary land and partial tax exemption was granted for the completed project. As a part of the cooperative effort by the city and the private company, the plans for the pro- . ject were subject to approval of the city and the company's profits, dividends, and power to dispose of the property were subjected to regulation by state law.\n\nWhen prospective Negro tenants were rejected by the company, they sued to enjoin discrimination as a violation of the Fourteenth Amendment.\n\nThe majority of the New York Court of Appeals found no exertion of state power directly in aid of discrimination and decided that the private company wls not engaged in a governmental function.\n\nFuld, J. dissented.\n\nHe said that even the conduct of private individuals would offend against the equal protection clause if the conduct appears in an activity of public importance and if the state has accorded to the activity, either the panoply of its authority or th(! weigh~ of its power, interest and support(').\n\nIn America, corporations or associations, private in character, lmt dealing with public rights, have already been held subject to constitutior..:11 standards. Political parties, for example, even though they are not statutory organisations, and are in form private clubs, are within this category. So also are labour unions on which statutes confer the right of collective bargaining.\n\nThus, in Steel v. LOuisville & Nashville R R (2) it was observed :\n\n\"If .... the (Railway Labour) Act confers this power on the bargaining r!!presentative of a craft . . . without any commensurate statutory duty towards its members, , constitutional questions arise.\n\nFor the representative is clothed with power not unlike that of a legislature which is subject to constitutional limitations on its power to deny, restrict, destroy, discriminate against the rights of those for whom it legislates and which is also under an affirmative constitutional duty equally to protect those rights.\" Institutions engaged in matters of high public. interest or perform:-/ ing public functions are by virtue of the nature of the function per formed government agencies(3).\n\nActivities which are too fundamental to the society are by definition too important not to be considered government function. This demands the delineation of a theory which requires government to provide all persons with all fundamentals of life and the determinations of aspects which are fundamental.\n\nThe state today has an affirmative duty of seeing that all essentials of life' are made available to all persons.\n\nThe task of the state today is to make possible the achievement of a Good life both by removing obstacles in the path of such achievements and in assisting individual in realizing his ideal of self-perfection Assuming that indispensable functions are government functions, the problem remains\n\n(I) see the Note in XXXV Cornell Law Quarterly, 399.\n\n(2) 323 U. S; 192, 198.\n\n(3) see the decisions in Terry v. Adams, 273 U.S. 536 & Nixon v. Condon, 286 u. s. 73.\n\nar ddi.ning the line etween fudamentals and nn-fundamnt.als. Th,~\n\nanalogy of the cloctnne of \"busmesses affected with_ a public interest immediately comes to mind.\n\nThe difficulty here is wel sta!ed by Justice Holmes in Tyson and Brother v. Banton(!) dealing with the constitutionality of a New York statute which limited the fees chaqed by theatre ticket brokers :\n\n\"But if we arc to yield to fashionable conventions, it seems to me that theatres are as much devoted to public use as anything well can be .. (T)o many people the superfluous is the necessary, and it seems to me that government does not go beyond its sphere in attempting to mr, ke life livable for\n\nthem.\"\n\nThe difficulty of separating vital government functions from nongov;:rnment functions has created further difficulties.\n\nIs the distinctioR between governmental and non-governmental functions which plagued the courts a rationi:.l one? The contrast is between governmental activitie:s which are' private and private activities which are governmental.\n\nWithout the adoption of a radical laissez faire philosophy and the definition of state functions as they were current in the days of Herbert Spencer it is impossible to sort out proper from improper functions.\n\nBesides the so-called traditional functions, the modern state operates a multitude of public enterprises.\n\nMr. Justice Holmes said, the Constitution does not enact Herbert Spencer's social statics.\n\nThis applies equally to the definition of state function for legal purposes.\n\nIn New York v. United States(2). the question was •;1hether the ' sta.te of New York was liable to the federal tax on mineral waters from state-owned and state-operated Saratoga Springs. The judgments of both the majority and the minority agree on the uselessness of the test laid down in Ohio v. Helvering( 3 ) that liability to taxation depended upon the aistinction between stat..: as government and state as trader.\n\nFrankfurter, J. said :\n\n\"When this Court came to sustain the federal taxing power upon a transportation system operated by a State, it did so in ways familiar in developing the law from precedent to precedent. It edged away from reliance on a sharp distinction between the 'governmental' and the 'trading' activities of a State, by denying immunity from federal taxation to a , State when it \"is undertaking a business enterprise of a sort that is normally within the reach of the fecieral taxing power and is distinct from the usual governmental functions that are immune from federal taxation in order to safe-guard the n-xessary independence of the State\".\n\nH elvering v.\n\nPowers, 293 U.S. 214 at 227. But this likewise does not furnish a satisfactory guide for dealing with such a practical problem as the constitutional power of the United States\n\n(l) 272 U.ts. 41g. 447.\n\n(2) 326 U. S, 572.\n\n(3) 292 u. s. 360, 366.\n\nSUKHDEV v. BHAGATRAM (Mathew, /.) 653\n\nover State activities.\n\nTo rest the federal taxing power on what is 'normally' conducted by private enterprise in contra- . diction to the 'usual' governmental functions is too shifting a basis for determining constitutional power and too entanged in expediency to s-::rve as a dependable legal criterion.\n\nThe essential nature of the problem cannot be hidden by an attempt to separate manifestations of indivisible governmental powers.\"\n\nDouglas, J. (1)\n\n\"A State's project is as much a legitimate governmenta\\ activity whether it is traditional, or akin to private enterprise.\n\nor conducted for profit. Cf. Helvering v. Gerhardt, 304 US 405, 426, 427.\n\nA state may deem it as essential to its economy that it own and operate a railroad, a mill, or an irrigation system as it does to own and operate bridges, street lights, or a sewage disposal plant.\n\nWhat hight have been viewed in an earlier day as an improvident or even dangerous extension of state activities may today be deemed indispensable.\n\nBut as Mr. Justice White said in his dissent in South Caroling v. United States, any activity in which ;, State engages within the limits of its police power is a legitimate governmental activity.\"\n\nJn Pfizer v. Ministry of Hcalthe), Willmcr L. J. in the Court of Appeal has recognized that in mid-Victorian times the treatment of patients in hospitals would have been regarded as 'something quite foreign to the functions of government' but added that since then there had been 'a revolution in political thought, and a totally different conception prevails today as to what is and what is not within the functions of government'.\n\nIt has taken English and American Courts many years to concede that the ci; crcise of an industrial or commercial activity on behalf of the State docs not deprive such activity of its 'governmental' character.\n\nBut a great many anomalies in common law remain, in particubr as regards the immunities and privileges of the Crown in such matters, immunity from the binding force of statute, debt priority, freedom from taxes and other public charges.\n\nThe recent English cases, appear, at long last, to move towards lthe abandonment of the totally antiquated notions of 'proper' functions of government.\n\nIn the Jigh.t of this discussion let us see whether the Lifo Insur::mce Corporation and the Industrial Finance Corporation would come within the ambit of 'state'.\n\nThe relevant provisions of the Life Insurance Corporation Act have been very clearly analysed in the judgment of my Lord the Chief Justice and it is unnecessary to repeat them. It is clear from the provisions that the Central Government has contributed the original capital of the Corporation, that part of the profit of the Corporation goes\n\n(1) 326 U.S. 572, at 591.\n\n(25) [1964]1Ch.614, at p. 641(affirmed1965 A. C. 512).\n\nto that Government, that the Central Government exercises control A over the polfoy of the Corporation, that the Corporation carries on a business havi11g great public importance and that it e'ljoy a monopoly in the business.\n\nI would draw the same conclusions from the relevant provisions of the Industrial Finance Corporation Act which have also been referred to in the aforesaid judgment. In these circumstances.\n\nI think, these corporations are agencies or instrumentalities of the 'state' and are, therefore, 'state' within the meaning of Article B 12.\n\nThe fac.t that these corporations have independent personalities in the eye of law does not meJUl_ that-they are not subject to tht~ control of government or that they are not instrumentalities of the government.\n\nThese corporations are instrumentalities or agencies of the state for carrying on businesses which otherwise would have been run by the state departmentally. If the state had chosen to carry on these C' businesses through the medium of government departments, there would have been no question that actions of these departments would be 'state actions'.\n\nWhy then should be actions of these corporations be not state actions ?\n\nThe Additional Solicitor General submitted that since these corporations have separate personalities, they cannot be regarded as agents or instrumentalities of the state and referred to the decision in Andhra D Pradesh Srate Road Transport Corporation v. The Income Tax Officer and A 11other(l).\n\nThe question in that case was whether the Road Transport Corporation constituted under the Road Transport Corporations Act, 1950, was carrying on business on behalf of the State of Andhra Pradesh and that the income of the Corporation was exempt from liability to pay income tax.\n\nThis Court took the view that the-_ Road Transport Corporation was a corporate body and has a separate E personality and, therefore, the business carried on by it was its own busineos and the St::ite Government had no beneficial interest in the\n\niniome.\n\nThe ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business ? When it .is seen from the provisions of that Act that on liquidation of the Corporation, its assets should be divided among the shareholders, namely, the Central and State governments and others, if any, the implication is clear that the benefit of the accumulat~ income would go to the Central and State governments. Nobody will deny that an agent has a legal personality different from that of the principal.\n\nThe fact that the agent is subject to the direction of the principal does not mean that he has no legal personality of his own.\n\nLikewise, merely because a corporation has legal personality of its own, it does not follow that the corporation cannot be an agent or instrumentality of the state, if it is subject to control of government in all important matters of policy. No doubt, there might be some disinction between the nature of control exercised by principal over agi:nt and the control exercised by government over public corporation. That, I think is only a distinction in degree.\n\nThe crux of the\n\n(1) [19641 7 S.C. R. 17.\n\nSUKHDEV v. BHAGATRAM (Mathew, J.) 655\n\nmatter is that public corporation is a new type of institution which has sprung from the new social and economic functions of government and that it therefore does not neatly fit into old legal categories. In stead of forcing it into them, the later should be adapted to the needs of changing times and conditions.\n\nI do not think there is any basis for the apprehension expressed that by holding that these public corporations are 'state' within the\n\nmeanin~ of Article 12, the employees of these corporations would become gG1;:rnment servants. I also wish to make it clear that I express no opinion on the quesion whether private corporations or other like organisations, though they exercise power over their employees which might violate their fundamental rights, would be 'state' within the meaning of Article 12.\n\nThe second question for consideration is whether an order of removal or dismissal from service contrary to the regulations framed by these corporations in the exercise of power conferred in that behalf would enable an employee to a declaration against them for continuance in service or would give rise only to a claim for dama,1tes.\n\nThis will depend upon the question whether the regulations framed by these corporations would have the force of law and even if they have not the force of law, whether the employment is public employment and, for that reason, the employee would obtain a status which would enable him to obtain the declaration.\n\nThe learned Chief Justice has dealt with the question in his judgment whether the regulations framed by the corporations have the force of law and he has arrived at the conclusion that the regulations being framed under statutory provisions would have the force of law.\n\nEver. assuming that the regulations have no force of law, I think since the employment under these corporations is public employment, an employee would get a status which would enable him to obtain\n\n1 declaration for continuance in service if he was dismissed or discharged contrary to the regulations.\n\nThe original concept of employment was that of master and servant. It was therefore held that a court will not specifically enforce a contract of employment. The law has adhered to the age..old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do.\n\nHe must face the prospect of discharge for failing or refusing to do his work in accordance with his employer's directions. Such control by the employer over the employee is fundamental to the employllli:nt relationship.\n\nBut there are innumerable facets of the employee's life that have little or no relevance to the employment relationship and over which the employer should not be allowed tv exercise control.\n\nIt is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily\n\ndischarge an employee with or without regard to th<: actuating nntive is a rule settled beyond doubt.\n\nBut the rule jJecame settled at :i time when the words 'master' and 'srvant' were t'aken more literath th:rn they are now and when, as in early Roman Law, the rights oE the servant, like the rights of any other member of the household, were not his own, but those or his pater families.\n\nThe overtones of this ancient doctrine are discernible in the judicial opinion which rationalised the employer's absolute right to discharge th<> employee.\n\nSuh a philosophy of the employer's dominion over his employee may have been in tune with the rustic simplicity of by gone days. But that philosophy is incompatible with 'these days o[ ic:rgc, impersonal, corpor~1tc employers.\n\nThe conditions have now vastly changed and it is dim.- cult to regard the contract of employment with large scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service.\n\nWhere large numbe~ of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably 10~1g time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non employment.\n\nIn other words, damages would be a poor substitute for reinstatement.\n\nThe traditional nle has survived because of the sustenance it rc.::eiwct\n\nfrom the law of contracts. From the contractual principle oi mutuality of obligation, it was reasoned that if the employee-an quit bis job oil will, then so too must the employ1r have the right to terminat_e\n\nthe n:lationship for any or no reason.\n\nAnd there are a number of cases in which even contracts for permanent employment, i.e. for indefinite terms, have hcen held uncnforccabk on the ground th:; t thi:y lack mutuality of obligation.\n\nBut these cases demonstrate that mutuality is a high sounding phrase of little use as an analytical tool and it would seem cle:ir that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employer's right\n\nof di.charge, i.e. lack of consideration. If there is anything in contract Jaw which ~.cems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion, from over-reaching terms often found in standard forms of co:ltract used by large commercial establishments. Judicial disfavour of co;1tracts of adhesion has been said to reflect the assumed need to orotect the weaker contrn, cting party against the harshness of the comm'on law and th:: abuses of freedom of contract.\n\nThe same philosophy seems to provide an appropriate answer to the argument, which stilt seems to have some vitality, that \"the servant cannot complain, as 'h: tahs the ·mployment on the terms which arc offered to him\"(').\n\nIn !1.fal!och v. A bcrdcen Corporatioll(\").\n\nLord Wilberfor.;-:, in speaking about the anomaly created by judicial decision in the area nf contractual and statutory employments, has said :\n\n(I) s~: Jc1stic: Ible •1.!i1 \\1: \"'.1tiT: v. !l!W B:dford, 155 Ma, s. 216.\n\n(2) (1971) I W. LR. 1578.\n\nSUKHDEV v. BHAGATRAM (Mathew, ].) 657\n\n\"A compai'ative list of situations in which persons have been held entitled or not entitled to a hearing or to observation of rules of natural justice, according to the master and servimt test, looks illogical and even bizarre.\n\nA specialist surgeon was denied protection which is given to a hospital doctor; a University professor, as a servant has been denied the right to be heard, a dock labourer and an undergraduate have been granted it; examples can be multiplied.\n\nOne may accept that if there are relationships in which all requirements of the observance of rules of natural justice ar\" excluded (and I do not wish to assume that this is inevitably\n\no), these must be confined to what have been called \"pure master and servant cases\", which I take to mean caes in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used. and even though in son1c ill!Cr partes aspects the rla tionship may be called that of master and servant, there may be essential precedural requirements to be observed, and falurc to observe then1 n1ay rcsu1t in a disn1issal being dccbred to be void.\" (I)\n\nI think that employment under public corporations of th.> nature under consideration here .is public employment and therefor~ the employee should have the protection which apportains to public employment ..\n\nln McC/dlaml V. Northern Ireland Health Board(\") rt; Hou>c of Lords, by a majority, decided that the express term whiCh provided for dismissal in case of misconduct and inefficiency was .:.xhaustiYc of the grounds of dismissal and, therefore, no further terms as to notice could be implied.\n\nLord Evershed pointed out :\n\n \"Much may turn on the prcmis~ to a consideration of the meaning of the conditions-whether in a contract of ser- . vie~ made in the t\\vcntieth ccnturv \\\\'ith a statutory board\n\nsuch as the respondent board (whose cstablishe,.r\" officers participate in the pension scheme contained in regulations promulgated by the Ministry of Health and Local Govm1mcnt of Northern Trdand). it is corr:ct tJ regard the comr.ion law right of <.t master to dc-tnninc his scrvlnt's engagement as of so well-established and paramount character that the contract should be interpreted as necessarily subject to that right (and to a corresponding right on the\n\npart of the servant) so that only the clearest cxpr\"ss terms will excfude it.\"\n\nAnd he also pointed out that the position of the employer board and one of its servants is very different : 'The loss or damaoe to tile board OCCnsioned by the departure Of one Of its servants would, Sa\\\"e in very . ~-- .\n\n(1) Mpp. 1595-1596.\n\nEmhasis added.\n\n(2) [!957] 2 All E.R.129.\n\nexceptional circumstances, be negligible. To a servant, certainly a servant in the positiot1 of the appellant, the security of employment with the board for the period of working life is of immense value.\" This approach to public c:mployment goes some way towards the reversal of the common law position. In public employment where there is an appointment to a perma 1aent post, there should b<: presumption that the employee cannot qe given notice and the servant can only be dismissed for misconduct or specified reasons.\n\nLord Evershed in interpreting the word 'permanent' in that case said : \"it seems to me of considerable importance, in interpreting its use in a contract of service, that. such a contract cannot be specifically enforced.\" This is an orthodox statement of legal principle but it is 11evertheless paradoxical to find it in a judgment which supported the majority view that a declaration should be granted.\n\nDeclaration is not specific performance but it has the same e.if ect in practice where a public authority is concerned which will invariablv act in accordance with the law as declared.\n\nDeclarations that \\1otices of dismissal were invalid have also been granted in the school teacher cases. (1)\n\nIn Hanson v. Radclifie U.D.C. (2), Lord Sterndale M. R. Said \"The power of the court (o make declarations, when it is a question of detcrmini!lg the rights of two parties to a contract, is now almost unlimited, or limired only by the discretion of the court.\" The discretimi.\n\nwhich should guide the court must be in tune with the modern conditions of life and should result in reversal of present-day attitude. If a job is regarded as analogous to property, it ought to be recognized that a man is entitled to a particular job just as the courts of Equity acknowledged his right to a particular piece of property.\n\nWhere a public authority is concerned, this can be implemented by a declaration.\n\nIn the case of private employment English law has devised no suitabl~ remedy.\n\nThat this is possible is shown by the example of other countries(3).\n\nThe Court must, therefore, adopt the attitude that declaration is the normal remedy for a wrongful dismissal in case of public employees which will only be refused in exceptioll'al circumstances.\n\nThe remedy of declaration should be a ready-made instrument to provide reinstatement in public sector.\n\nOnce it is accepted that a man's job is like his property of which he can be deprived of for specific reasons, this remedy becomes the primary one though it will need to be reinforced where private individuals are being sued.\n\nThe law of master and servant has not kept pace with tl:e modem conditions and the mandate of equality embodied in the Constitution. The law still attaches to the servant a status of inferiority and subjection to his master.\n\nThough fundamental reforms r, an only emanate from the legislature. the principles fashioned by public law if applied to masterservant relationship can bring about a change in law to accord with the social conditions of the 20th Century(4).\n\n(I) So!~ Sadler '\" Sheffield Corporation, (1924) 1 Ch. 483; Martin v. Eccles Corporati.011, (1919)_ 1 Ch. 387; & Hanson v. Radcliffe U.D.C., (1922) 2 Ch. 490.\n\n(2) (1922) 2 Ch. 490.\n\n(3) see Wedderburn : \"The Worker and the Law\" , p. 89 onwards.\n\n(4) see generally \"Public Law Principles Applicable to Dismissal from Employm::nt'\" by G. Gan , 30 Modern Law Rev. 288.\n\nSUKHDEV v. BHAGATRAM (Alagiriswami, J.) 659\n\nThat apart, the tegulatio.15 framed by these corporations were in tended to be binding upon them and were the bases on which the em ployments were made.\n\nAs the employments were U'nder corporations created by statutes for carrying on. businesses of public importa11ce, they were public employment.\n\nAnd even if the regulations have not got the force of-law, I think the principle laid down by J!lstic.c Frankfurther in Viterelli v. Seaton(') should govern the s1tuat1on.\n\nHe £aid:\n\n'\"An executive agency must be rigorously held to the standards by which it professes its action to be judged ....\n\nAccordi11g, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. . . . . This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so.\n\nHe that takes the procedural sword shall perish with that sword.\"\n\nl agree With the conclusions of my Lord the Chief Justice.\n\nALAGJRISWAMI, J. In his judgment in Writ Petition No. 43 of 1972 as Lord the Chief Justice has quoted with approval the decision of this Court in Praga Tools Corp. v. !manna! (1969 (3) SCR 773), Heavy Engii11.. Mazdoor Union v. Bihar (1969 (3) SCR 995), and S. L. Agarwal v. Hindustan Steel (1970 (3) SCR 363). I may also ref er to the decision of this Court in Hindustan Antibiotics v.\n\nWorkmrn (1967 (1) SCR 652). The last one was a Government undertaking incorporated under the Indian Companies Act. The entire equity capital of the company was held by the President of India and his nominees and the entire Board of Directors was, nominated by him.\n\nService conditions of the workmen an'd other matters were subject to the approval of the President of India. It was pointed out by the Constitution Bench of this Court that though the company was a limited one and therefore had a distinct corporate existence, it was in effect financed and controlled by the Central Government.\n\nThe conduct of the business of the company was subject to the directives issued from time to time by the President of India and its accounts were audited bv the uditors appointed bv the Central Government 'On the advice of the Comptroller and Auditor General of India. The annual report of the working of the company and its affairs along with the Audit Report had to be placed before the Parliament.\n\nDividends declared by the company entirely went to the coffers of the State. All the same this Court treated that company like any other company registered under lne Indian Companies. Act.\n\nIn G11rushantappa v. Abdul Khaddus (1969 (3) SCR 425) the question whether an employee in a company owned by Government was holding an office of profit was considered. It was a private limi- H ted company registered under the name of Mysore Iron & Steel Limited. Bhadravati. The shares of the company were held cent per cent\n\nO) 359 U. S. 536, at 546-547.\n\nbv the Mysore Government.\n\nUnder the Articles of Association of the company the first Directors of the company were Minister-in- Charge of the Industries Portfolio in the Mysore Government, the Secretaries to the Mysore Government in the Finance Department, and in the Commerce and Industries Department, the Managing Director of the Mysore Iron & Steel Ltd., and the Chief r:onsm:itor of\n\nForest~ of the Mysore Government.\n\nThe Governor of Mysor.c was entitled to appoint all or a majority of the members of the Board of Directors so long as the Government of Mysore held rrot bs than\n\n51 per cent of the total paid-up capital of the company or so long as the Governor continued to be intesrested in any fiduciary capacity.\n\nThus the State Government had considerable control in appo!ntment of Directors of the company as well as in the: appointment ,1f the Managing Dir, ector who was to be appointed by the G0Yc:rn,1r from amongst the Directors nominated by him.\n\nThe Governor was also entitled to appoint from amongst the nominated Directors a Ch:tirman and Vice-Chairman of the Board of Directors.\n\nEven the 5ccretan' of the company had to be npP'ointcd by the Board of Direc10:-; aftc.r obtaining approval of the Governor.\n\nIn respect of other c:r:~Lyces of the company, recruil'ment and service conditions had to Li,: in accordance with the rules which may be prescribed by the Government from time to time.\n\nThis Court held that the employee 1' as not holding an ollice of profit under the State Government.\n\nIn Parga Tools Corporation's case (sPprn) the comp:rny w:is incorporated under the Indi<:n Companies Act.\n\nThe Union Government and the Government of Andhra Pradc>h bctwee;1 them '1eld 56 per cent and 32 per cent 'Of its shares respectil'dy.\n\nThe Cnic;-, G0vern.ment had the power to nominate the company\\ dircctor'.\n\nThis Court held that even so, being registered under the Comrar!;:·; Act and governed by the provisions of that At, the company ·,1 <E sepz.- ratc legal entity and: could not be said t'l be either :i GJ\".: :ament corporation or an industry nm by or under the authoritv nf tl-: L'cion Government.\n\nIn the Heavy Ellginccring case\n\n(supra) the comp::my ''-''.1i one incorporated under the Companies Act.\n\nTts entirC' share cap!r,2.l was\n\ncmtributcd by the Central Government and nll its shares \\1 etc rcgi>- tcred in the name of the President of India and certain oil1ccr> ('f the Central Government. It was, therefore, a Ccwcrnmcnt crnip; rny.\n\nThe Memorandum of Association and the ,\\rticks of Ass0ci:tiJ:1 0f the company conferred large powers on the Central Govern1<ent inclllding the power to give directions ns regards the functionini:: , Jf the company.\n\nThe wages and salaries of its employees wer~ abc determined in accordance with the said directions.\n\nThe Director~ of the company were appointed bv the President.\n\nJn its standinc (1;-ders, the company was described as a Government undertaking.\n\nIn de3ling with the question whether the company could be said to l'~ carrying on its business pursuant to the autlroritv of the Centr;:il CJvernment this Court observed :\n\n\"An incorporated company, as is well known, has a separat: existence and the law recognises it as a juritic person. separate and distinct from its members.\n\nThis new person-\n\nSUKHDEV v. BHAGATRAM (Alagiriswami, !.)\n\nGG 1\n\nality emerges from the moment of its incorporation and from that date the persons sub.scribing to Its memorandum of association and others joining it as members are regarded as a body incorporate or a corporation aggregate and the new person begins to function as an entity. (cf. Salomon\n\nv. Solomon & Co. (I). Its rights and obligations are differentfrom those of its shareholders. Action taken against it does not directly affect its shareholders. The company in holding its property and carrying on its business is not the agent of its, shareholders.\n\nAn in.frill/gement of its rights does n'Ot give a cause of action to its shareholders.\n\nConsequently, it has been said that if a man trusts a corporation he trusts that legal persons and must look to its assets for pa, yment; he can call upon the individual shareholders to contribute only if the Act or charter creating the corporation so provides.\n\nThe liability of an individual member is not increased by the fact that he is the sole person beneficially interested in the property of the corporation and that the other members have become members merely for the purpose of enabling the corporation to become incorporated\n\nand possess only a nominal interest in its property or hold it in trust for him. (cf Halbury's Laws of England, 3rd Ed. Vol. 9, p. 9).\n\nSuch a company even possesses the nationality 'Of the country under the laws of which it is in.- cGrporated, irrespective of the nationality of its members and does not cease to have that nationalitv even if in times of war it falls under enemy control (cf. Janson v. Driefontain Consolidated Mines(2) and Kuenigi v. Donnersmarck(8 ).\n\nThe rompany so incorporated derives its powers and functions from and by virtue of its memorandum of association and its articles of association.\n\nTherefore, the mere fact . that the entire share capital of the respondent-company was contributed by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does not make any difference.\n\nThe company and the shareholders being, as aforesaid, distinct entities the fact that the President of India and certain officers hold all its shares does not make the company an agent either of the President or the Central Government. . A notice to the President ofl India and the said officers of the Central Government, who hold between them all the shares of the company, would not be a notice to the company; ncir can a siiit m:UUtainable !>Y and in the name ·~ the comp<'ny be sustamed by or m the name of the President and the said officers. ·\n\nIt is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint\n\n(I) [1897] A. C. 22.\n\n(2) [\\902] A. C. 484.,..\n\n(3) [l9S5] 1 Q. B. Sl6. '\n\n662 SUPREME COURT REPO'll.TS [1975] 3 s.c.R.\n\ndirectors and even the power to determine the wages ad salaries payable by the company to its employees.\n\nBut these powers are derived fnom the company s memorandum of association and the articles of association and not by reason of the company being the agent of the Central Government.\n\nThe question whether a corporation is an agent of the State\n\nmust depend on the facts of each case. Where a. statu1:e setting up a corporation so provides, such a corP?ration, can\n\neasily be idetified as the agent of the State as.1!1 Graham\n\nv. Public Works Commissioners(') where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals. In the absence of a statutory provision, however, a commria1 corporation a.ct'\n\ning on its own behalf, even though 1t 1s cntrolled ':\"holy or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State. The fact that a minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise oiver the conduct of the business of the corporation does not render the corporation an agent of the Government, (see The State Trading Corporation of .lndia Ltd. v. The Commercial Tax Officer, Visakhapatnam( 2 ) and.\n\nTamin\n\nv. Hannaford(8 ). Such an inference that the corporation is the agent of the Government may be drawn where it is performing in substance governmental and not. commercial functions (cf. London County Territorial and Au.xiliary forces Association v. Nichols(4),\n\nIn Hindustan Steel case (supra) it was argued before the Constitution: Bench that since it . was entirely financed by the Government and its management was directly the responsibility of the President,\n\nthe post was virtually under the Government of India. Hindustan F 'Steel was a Government company and a private limited company. Its\n\nArticles of Association, as also the Indian Companies Act rendered the ordinary company .law inapplicable in certain respects and conferred unlimited powers of management on the President of Indfa and his nominees. It was entirely owned by the Union of India. TI1is Court . held that the Hindustan Steel had its independent existence. and by .the law relating to corporations it was distinct even .from its members.\n\nG though the question for decision therein was whether Article . 311 of the Constitution 'applied to the employee in question.\n\nI shaU: now compare these cases with those relating to lbf: Oil and NatluraJ Gas Commission, the Life Insurance Corporation of India and the Industrial Finance Corporation with which these four appeals are concerned.\n\n(I) [1901] 2 K. B. 781.\n\n(3) [1950] I K. B. 18, 75-26.\n\n(2) (1964] 4 S.C.R. 99,188 per Shah, J.\n\n(4) [1948] 2 All E. R. 432.\n\nSllKHDEV v. BHAGATRAM (Alagiriswamt, J.) 663\n\nThe Oil and Natural Gas Commission consists of the Cbail'illan, and not less than two, and not more than eight, other members appointed by the Central Government. The Central Government may, if it thinks fit, appoint one of the members as Vice-Chairn1an of the Commission.\n\nThe Commission may, for the purpose of performing its functions or exercising its powers, appoint such number of employees as it may consider necessary.\n\nThe functions and the terms and conditions of service of such employees shall be such as may be provided by regulations made under the 1959 Act.\n\nThe Commis:Sion may, with the previous approval of the Central Government, by notification in the Official Gazette, make regulations not inconsistent with the Act and the rules made thereunder, for enabling it to discharge its functions under the Act. The regulations pro~ vide inter alia for the terms and conditions of appointment and service and the. scales o~ pay of employees of the Commission; the time and place of meeting of the Commission, the procedure to be followed in regard to the tralJ\\Saction of business at such meetings; the maintenance of minutes of meetings of the Commission and the transmission of copies thereof to the Central Government; the persons by whom, and the manner in which payments, deposits and investments may be made on _behal1l of the Commission; the custody of moneys required and the maintenance of accounts.\n\nThe Central Government may amend, vary or rescind any regulation which it has approved;. and thereupon the relation shall have effect accordingly but without prejudice to the exercise of the powers of the Commission under sub-section (1) of section 32.\n\nThe Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956.\n\nUnder s.49 of the Act the Corpo- !ration may, with the previous approval of the Central Government, by notifieation in the Gazette of India, make regulations not inconsh:- 'tent with the Act and the rules made thereunder to provide for ail matters for which provision is expedient for the purpose of giving effect to the provisions of this Act.\n\nThe regulations may provide inter alia for the powers and functions of the Corporation which may be delegated to the Zonal Managers; the method of recruitment of employees and agents of the Corporation and the terms and conditions of service of such employees or agents; the terms and condition of service of persons who have become employees of the. Corporation under section 11 of the Act; the number, term of office and conditions of service of members of boards constituted under section 22 of the Act; the manner in which the Fund of the Corporation shall be maintained the form and manner in. which policies may be issued and contracts binding on the Corporation may be executed.\n\nThe Industrial Finance Corporation was set up by the Industrial }'.inance Corporation Act, 1948.\n\nThe superintendence of the business of the Corporation is entrusted to a Board of Directors. The Central Government may make rules in consultation with the Development Bank not inconsistent with the provisions of the 1948 Act and to give effect to the provisions of the Act.\n\nSection 43 of the Act enacts that the Board may with the previous approval of the Development Bank regulations not inconsistent with the Act and the\n\nrules made thereunder to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to th1~ po visions of this Act.\n\nTI1e Development Bank means the Industrial Development Bank established under the Industrial Development Act, 1964.\n\nThe shares of the Central Government in the Corporation shall stand transferred to the Development Bank when the Central Government shall so notify.\n\nThe regulations provide inter alia for the holding and conduct of elections under this Act including the final decision of doubts .or dispute& regarding the validity of the election; the mam1er in which and the conditions subject to which the shares of the Corporation may be held and transferred; the manner in which ceneral meetings shall be convened, the procedure to be followed thereat; th< duties and conduct, salaries, allowances and conditions of\n\ni>crvice of 1.licers and other employees and of. advisers and agents of the Coroo. 'tion. ·\n\nAll the: c Acts confer rule making power on tlte Central Government and it is not necessary to refer them for the purpose of these cases. It is necessary only to refer to the regulation making power conferred on the three organisations under consideration. On behalf of these orga11isations the contention advanced was that the regulations relate to ir:terrtal management, that the teflllS and conditions of service of employ.:cs as laid down in the regulations are not law but merely rules for the purposes of internal management. In so far as the appointments of the various employees of these three .organisations are concerned they are appointed by contract and these regulations merely for!ll part of those contracts.\n\nOn behalf of the employees the contenllon was that as the source of the power tQ make regulations is the statute the regulations are themselves law.\n\nUnder d. (51) of section 3 of the General Clauses Act, 1897 \"rule\" means a rule made in exercise of a power conferred by any enactment, and shall includ~ a regulation made as a rule under any enactment. -\n\nSection 20 of the General Clauses Act reads as follows :\n\n \"20. Where, by any Central Act or Regulation, a power to issue any notification', order, scheme, rule, form, or byclaw is conferred, then expressions used in the notification,\n\n<trder scheme, rule,. form, or bye-law, if it is mad~ after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power.\"\n\nThe CCYlllpendious term \"Subordinate Legislation\" refers to notificati'ons, 0rders, schemes, rules and bye-laws referred ro in ss. 20 and 21 of the General Clauses Act. It would be noticed that the word \"order\" used in the General Clauses Act is not used in the same sense that word is used in England where orders are excluded from the statutcirv definition of statutory rules as being administrative.\n\nThe Committee on Ministers' Powers suggested that regulations should be used for substantive law and rules for procedural law, while orders s.hould be reserved to describe the exercise of executive power or the taking of\n\nSUKJlDE\\' \\', BIIAGATRA\\I (A/agiriswami, !. ) 665\n\na judicial or quasi-judicial decision.\n\nIt would be noticed that this scheme is completely di!ferent from the Indhn legislative practice.\n\nThe word \"ort:r\" . very often is used in India for certain types ot subordmate legislation for various control orders like the \"Ratwning Order\". There are a_number of statutes on the Statute BJok in India\n\nwhe:e the word \"regulaion'' is used to refer to the regulations made by bodies other than the State. The word \"rule\" is always used tu refer to the subordinate legislation made by. virtue of powers conferred.\n\nThe regulations framed under the regulation making power conerrcd by the three Acts in question are not the regulations as defined Ul the General Clauses Act. In interpreting Indian statutes it is unnecessary and might sometimes be misleading to refer to the provisions of English law in connection with subordinate legislation.\n\nWe have to refer only to the General Clauses Act and the Indian Legislative practice.\n\nThough ''rule\" is defined as including a regulation made as a rule, it cannot be said that regulation making power conferred on the three organisations in question is a rule making power.\n\nUnder the legislative practice in India the rule making power is con-- ferred on the State and the power to make regulations is conferred on bodies or. organisations created by the statute.\n\nThe Air Corporations Act, 1953 which deals with Indian Airlines and Air India International confers power on the Central Governnient to make rules under section 44 with regard to terms and conditions of service of the General Managers and such categories of officers as may be specified from time to time under sub-section (1) of section 8.\n\nUnder sub-section (2) of section 8 every person employed by each of the Corporations shall be subject to such conditions of service and shall be entitled to such remuneration and privileges as may be determined by regulations made by the Corporation by which he is employed.\n\nUnder section 45 the Corporations have the power to make regulations amoc,1g other things regarding terms and con_ditions of service of officers and other employees of the Corporation other than the General Manager and officers of any other categories\n\nreferred to in section 44.\n\nUnder the All-India Institute of Medical Sciences Act, 1956 the Central Government has the power to mke rules un~r scctiori ~8. including the power to make rules regarding the cod1t1ons of sev1ce of members of the Institute, the allowances to be paid to the President and members of the Institute and the number of officers and emplo}'.ees that may be appointed by the Instittite and the manner of such appointment.\n\nUnder section 29 thi Institute has the power to make regulations regarding the allowan<; es, if any, to be. paid !O the Chairman and the members of the Govermn!} Body and of standmg and ad hoc committees and the tenure of office, salaries and allowances and other\n\nonditions of service of the Director and other officers l!-lld employees of th~ Institute including teachers appointed by the Institute.\n\nOn the other hand, under the @cntral Silk Board Act, 1948 it. is the Central Government that has the power to make rules regarding\n\n1_2-l70SupCl/75\n\nthe statf which may be employed by the Board and the pay and allowances, leave and other conditions of service of officers and other employees of the Board.\n\nThe Board has no power to make regula- •\n\ntior~.\n\nUnder the Chartered Accountants Act, 1949 it is the Council that has tht: power to make regulations about various matters. The Central Government has, however, the power to direct the Council to make any regulations or to amend or revoke any regulations already\n\nmade within such period as it may specify in this behalf. There i> however no rule making power conferred on the Central Government.\n\nUnder the Indian Coconut Committee Act, 1944 the O:ntrul Government has the power to make rules, including many others, the power for regulating grant of pay and kave to otticers and servants l1f\n\nthe Committee as also the pensions, gratuities, compassionate allow ances and travelling allowance$.\n\nThe power of the. Committc:c l(l 'make regulations is, however, very limit~'\\i and relates only to demand\n\nIng security from offic1:rs and servant.~ of the Committee and th1: Prn- \\•ident Fund.\n\nUnder the Coir Industry Act, 1953 the Central Govcrnme11t has power .to make rules and the Coffee Board has no power to make any n:gulations.\n\nUnder the Coir Industry Act, 1953. the Central Government ha~ the power to make regulations and the Board to make bye-laws irega.rding the appointment, promotion and dismissal of its olficers and other\n\n~'mployecs other than the Secretary and the creation and abolition of their posts, as well as the conditions of service of its officers and other employees other than the St.cretary including their pay, leave, lea\\\\! allowances, pensions, gratuities, compassionate allowances and travel~\n\nling allowances, and the establishment and maintenance of a provident fund for tbcm.\n\nUnder the Cost and Works Accountants Act, 1959 only th1: Council has. the power to make regulations and the Government has no power to make rules.\n\nLinder the Damodar Valley Corporation Act, 1948 the Central Government has the power to make rnlcs and the Corporation to\n\nmake regulations among other things regarding making of appointments and promotion of its officers and servants, and spcifying othL'r conditions of service of its officers and servants.\n\nUnder the Dntisls Act, J 948 the State Governments alone ha\\\"c\n\n111,~ power to make rules including rules regarding the term of office and the powers and duties of the Registrar and other officers and scr- ' ants of the State Dental Council. .The State Council~ have no powers w make a.ny regulations.\n\nThe Deposit Insurance Corporation Act, 1961 enables lh1~ CorporaLiou to tnake regulations but cOb.fcrs 110 power on the Government 10 make mks.\n\nSUKHDEV l'. BHA.GATRA.M (4lagiriswami, !.) 667\n\nUnder the Electricity (Supply) Act, 1948 the State Governments have the power to make rules and the Board makes regulations.\n\nUnder the Employees' State Insurance Act, 1948 . the Central Government has the power to make rules in respect of certain matters and the tate Governments in rest of certain other matters, but the Corporation has the power to make regulations regarding the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of officers and servants of the Cor- poration other than the principal officers. The State Governments have the power to make rules regarding the conditions of service of staff employed in fhe hospitals, dispensaries and institutions maintained by the Corporation. The important point to note about provisions of this Act is that the regulations made by the Corporation shJll be published in th~ Gazette of India and thereupon shall have efiect as. if enacted in the Act. It shows that where the Parliament intended that a regulation should have statutory effect it said so specificalfy.\n\nThis also illustrates the provision of Cl. ( S 1) of section 3 of the General Clauses Act which defines 'rule' as including n regulatlcn intended to be made as a rule. ·\n\nThe Faridabad Development Corporation Act, 1956 confers th~ power to make rules on the Central Government but no power is given to the Corporation to make any regulations.\n\nThe Incjian Medicine Central Council Act, 1970 confers the power tn make rules on the Central Government and the power to make regulations on the Central Council of Indian Medicine including .the power to make regulations regarding the tenure of office, and tb: powers and duties of the Registrar and other officers and servants of the Council and th1.~ appointment, powers, duties and procedure of inspectors and visitors.\n\nThe Industrial Development Bank of India Act, 1964 confers powers on the Board of Directors of the Bank to make regulations but no rule making power on the Government.\n\nThe International Airports Authority Act, 1971 confers power on the Central Government tO make rules and on the Authority to make regulations including regulations regarding the conditions ?f servie and the remuneration of officers and other employees appomted by 1t. .\n\nThe Khadi and Village Industries Commission Act, 1956 confers the power to make rules on the Central Government and the power to make regulations on the Commission including regulations regarding the terms and conditions of appointment and service and the scales of pay of offis an~ servlli}ts of the Commis_si~ othe! than te Secretary and the Financial Adviser to the Comnusston which are to be regulated by ruies made by the Government\n\nUrider the Life Insurance O>rporation Act, .1956 the power to niake rules is with the Central Goyernment and the power . to make regulations with the Corporation,\n\n.. , ' '.:·\n\nSUPREME COURT REPORTS (1975] 3 S.C.Jt\n\nUnder the Major Por1 Trusts Act, 1963 the Central Government has the power to make rules and the Board of Trustees for the Port\n\nthe power to make n:gulations including the power regarding the app<>intment, promotion, suspension, removal and dismissal of its e:niployees, their leave, leave allowances, pensions, gratuities, compassionate allowances and travelling allowances and the establishment and maintenance of a Provident Fund or any other fund for their welfare,. and the terms and conditions of service of persons who beconw employees of the Board.\n\nThe Marine Products Export Development Authority Act, 1972 enables the Central Government to make rules and the Marine Products Export Development Authority to make regulations.\n\nThe Indian Medical Council Act, 1956 confers power on the Central Government to nfltkc rules and on the Council to make r1:gulations including the tenure of office an.d the powers and duties of the Registrar and other officers and servants of the Council, the appointment, powers, duties and procedure of medical inspectors and visitors.\n\nThe :Monopolies and Restrictive Trade Practices Act, 1969 confers the power to make. rules on the Central Government and the power to make regulations on the Monopolies and Restrictive Trade Practice~ Commission.\n\nThe National Co-operative Development Corporation Act, 1962' confers the power to make rules on the Central Government and the power to make regulations on the Corporation.\n\nI have gone through the various statutes only to point out that under the Indian Legislative practice rules arc what the Central Cio\\'- ernment or the State Governments make and the regulations arc made by any institutlCin or organisation established by a statute and where it is intended that the regulation should have effect as law the statute\n\nitself says so. It is, therefore, as I stated earlier, unnecessary and may b0 even misleading to refer to the English practice in interpreting thr word' 'regulation'.\n\nMy learned brotners say that the regulations under the Oil & Natural Gas Commission Act provide for the terms and conditions of appointment and service and scales of pay of the employees of the Commission, regulations arc imperative and the administrative instruction is the entering into contract with the particular person, but the fol'lll and content of the contract is prescriptive and not statutory.\n\nAdministrative instructions are not necessarily in relation to particula:r p1rson, they may relate to a whole class of persons even as rules and regulations may.\n\nTo say that because the regulations contained the tc:rms and conditions of appointment they are statutory is to bc, l! the question. I have extracted the power to make regulations found in the various statutes merely to show that .the power to make regulations may be of different kinds. An institutJon like the Life Insurance Corporation which bas its offices and. employees all over the country\n\nhas necessarily got to have a standard set of cqnditions of service for its \\'; irious classes of employees. That is why they ate made subje:ct\n\n\" \"\n\nSUKHDEV l'. llHAGATRAM (Alagiriswami, .7.) 669\n\nof regulations.\n\nBut the mere fact that regulations are made in respect or the conditions of service of the employees of a certain i115titution or organisation does not mean that those conditions are statmory.\n\nNo doubt these arc the conditions of service applying to their employees.\n\nBut ii there is breach of th0se conditions it cannot be said that there is a breach of any statutory provision.\n\nWhile rules arc generally made by the Government the regulations are made by a body which i~; a creature of the stalute itself with its powers limited by the statute. While rules apply to all matters coverd by te statue, the scope of the regulations is narrower being usually confined to mternal matters of the statutory body such as the conditions of service of its employees.\n\nWhen regulations standardise the conditions of service of the employees or purport to formulate them, their character is further diluted by the nature of the subject-matter.\n\nFor, service or employment is basically a contract which is deeply rooted in private law.\n\nA mere standardisation or e'numeration of the terms of a service contract is not, therefore, ordinarily sufficient to convert it into a statutory status.\n\nFor, the statute itself is silent and does not confer any security of tenure on the employee.\n\nThe Corpo-. ration has a complete discretion in framing the regulations and giving such protection thereunder to its employees as it thinks fit.\n\nThe amount of the protection thus depends on their own discretion.\n\nIt is not given by a mandatory statutory obligation imposed on the corporation from above.\n\nFor, the corporation can vary the terms of the regulations at any time thus depriving its employees of the security of tenure of service.\n\nThe matter is thus one between the employee and the employer which is precisely the case of a service contract.\n\nA breach of such conditions is therefore a breach of the service contract remediable by damages rather than an ultra vires action to be set aside by a declaration or mandamus.\n\nAs argued on behalf of the three organisations the regulations arc abvut the conditions of service which are offered to its employees in the form of a contract. The result of accepting the argument that these powers are statutory would be to hold that the employees of the various organisations and institutions which are governed by the various statutes I have enumerated above would be deemed to have their service conditions fixed by statutes. Even assuming that their conditions of service are fixed by staute it does not mean that be removal of an employee contrary to those conditions would necessarily result in the removal having to be declared void.\n\nThat was the position, for instance, under section 96-B of the Government of India Act, 1919 till section 240 was introduced in the Government of Incija\n\nAct, 1935. (See Venkat Rao's case, A.l.R. 1937 P.C. 31, and Rangachari's case,. AIR 1937 P.C. 27).\n\nIt does not seem correct to say that these statutory bodies have no free hand in framing the conditions and terms of service of their em1>l<;>yees. ' It is true that they have to offer terms and conditions as laid down in the regulations. But it is incorrect to say that they are not free to frame such terms and conditions as they think proper. They are the authorities to make the reirulations and therefore can make\n\nany regulations regarding the conditions and terms of service of their\n\ncmplloyces and also change them as they please.\n\nIt cannot therefore be said that they arc bound by these terms and conditions of service. fodeed there is no obligation on them to make regulations regard.ing\n\nthe terms and c:onditions of service of their employees. It has bcen held by this Court that in the case of public servants though the Governments have power to make rules under the proviso to Art. 309 or undc:rtake legislation regarding terms and conditions of service of Gov1ermµent servants, they can either by administrative instructions or executive orders also regulate the terms and conditions of their service.\n\nCorporations als-0 can do so and even if they make regulations _!hpsc\n\nrigulations cannot be said to be law in relation to them. While regulations made by one oody which another body is bound to observe.can\n\nl>c said to have the effect of law, the regulations which a body makes and can change and which it need not even make cannot be said to have the effect of law in relation to that body. ·\n\nThe learned Additional Solicitor General. submitted .that r1:gulatiuns could not have the force of law because these regulations arc similar to regulations framed by a company incorporated under the Companies Act. My learned brothers say that the fallacy lies in equating rules and regulations of a company with rules and regulaticms framed by a statutory body. 1 do not see where the fallacy lies. A company makes rules and regulations in accordance with the provisl.ons of the Companies Act. A statutory body makes regulations under the powers conferred by the statute creating that body. Both stanct on the same footing as both derive their authority one from the Companies Act and the other fro!l1 the Act which creates that body, for instance in the case of the Life Insurance Corporation from the Life Insurance Corporation Act, 1956. The fact that a Corporation like Jthc Life Insurance Corporation is created by the statute itself and a company comes into existence jn accordance with the provisions of\n\nlt1e Companies Act does not make any difference to this situation.\n\nMerely because a body happens to be a statutory body it does not become any the less entitled to frame regulations which could be of the same kind as the regulations made by a company.\n\nWhether a corporation or a company is created by a statute or under a statute does not make any differen-; e to this principle.\n\nThe logic of the three decisions. the validity of which my learned brothers have accepted in their decision in W.P. No. 43 of 1972, requires that it ihonlcl be applied to the en1ployces of these three organisations. There is no reason in principle why a different result should follow just because a corporation happens to be established by a statute whereas it is different in the case of a company. Whether :an institution or organisation is established by a statute or under a statute in principle ther1~ is no difference between their powers.\n\nUltimatdy unless it should be held that thr. institution or organisation in question is an 'authority' within the meaning of the term in Article 12 of the Conslitution there can be no question of the regulations framed by thMC organisations being deemed to be law.\n\nIn order that an institution must be an 'authority' it should exercu; e part of the sovereign power or authority of the State. See in this\n\nr• .I\n\nSUKHDEV I'. BH~ATRAM (Alagiriswami, !-) 671\n\nconnection the definition of the word in the General Clauses Act, which\n\nrads as follows :\n\n'\"Local authority\" shall mean a municipal committee, tJistrict board, body of port commissioners or other authority legally entitled to, or entrusted by the Goverument with, the control or managemeut of a municipal or local tund.\"\n\nThey are all concerned with exercising part of the powers of the State.\n\nThat is why a Port Trust is given even the power to !pake regulations to provide that a breach of its regulatiQns would he , punishable. In such a case it is undoubtedly exercising part of the power of the State.\n\n!be whole purpose of the provisions of Part III of the Constitution is tu confi:r fundamental rights on the citizen as againsttbe power of the Stahl or those exercising the power of the State. None of these corpurations do so and so they cannot be the 'State' or .'autho\\ity' .\n\n. The case in British Broadcasting Corpn. v. Johns [1965 {1) Cb. 32.1 is very much in point. It is not necessary to burden this judg- 1nent by quoting extensively from that decision. It. was held there that the B.B.C. was not an instrument of Government. It was argued tn that case that the Crown was entitled to a monopoly of broadcasting and therefore the Gov_ernment purposes also include non-traditional provinces of Government if the Crown has constitutionally asserted that they are to be within the province of . Government. Willmer, L.J .. quoted with approval the remarks of Wilbr.rforce, J., against whose judgment the Court of Appeal was being heard, to the effect :\n\n\"So I come to the conclusion that however widely one may be inclined to extend the conception of an act or function of government the Crown has not taken the path of cngagaing itself in a broadcasting service or of entrusting it tll any agent. It has deliberately chosen the alternative of an independent instrument.\"\n\nThere can be no doubt that that is the position in respect of the three\n\ncorporations we are dealing with.\n\nThe distinction between g ental functions and commercial functions is, therefore, clear ell\\'.)ugli.\n\nEven in the United States of America this distinction is clearly kt!pt mind.\n\nIn New York v.\n\nUnited States (90 L. ed. 326) it was rem .ed : . 1 '\"That there is a (', onstitutional line between the State as government and the State as trader, was still more recently n1ade the basis of a decision sustaining a liquor tax against Ohio. \"If a state chooses to J!O into the business of buying ahd selling commodities, its riht to do so may conceded so far as the Federal Constitution is concerned; but the exercise of the ri.eht is not the performance of a governmen- . rat function . ... When a state enters the market place seektng customers it divests itself of its quasi sovereignty pro\n\ntanto, and tak.::s on the character of a trader so far, at Jea~L as the taxing power of the federal government is concerned.\"\n\nOhio v. Helvering, supra (292 US at 369, 78 L. ed 1310, 54 S Ct 72'J). When the Ohio Case was decided it was too late in the day _not to recognize the vast extension of the sphae of government, both s, ate and national, compared\n\nwith ; hat with which the Fathers were familiar. h could tiardly remain a satisfactory constitutional doctrine that only such State activities are immune from federal taxatiof1 as wen: engaged in by the States in 1787. Such a static concept ot government denies its essential nature. \"The science\n\n11t government is the most abstruse of all sciences; if, inded, tl1at can lh~ called a science which lias but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exegencies of the state as they arise. t is the science of' experiment.\" Anderson\n\nv. Dun11. 6 Whc,1t. (U.S.) 204, 226, 5 Led. 242, 247.\n\nWhen this Court came to sustain the federal taxing power upon a transportatio[! system operated by a State, it did so m ways fannliar m developing the Jaw from prece- Ji:nt ru precedent. lt edged away from reliance .on a\n\nharp disttn, ction between the \"governmental\" and the \"trading\" activities of a Sta'e, by denying immunity from federal taxatton to a State when it \"is undertaking a business enterprise of a sort that is normally within the reach of the fede. rat wxin11 vower and is distinct from the usual governmental rundwns that are immuue from federal taxation in order to safeguard the necessary independence of the State.\" Halvering v. Powers, supra (293 US at 227, 7~1 L. ed. 296, 55 S Ct 117).\n\nIt is, therefore, clear that Article 298 of the Constitution cannot be resorted to for supportmg the proposition that when the State ent1rs into non-governmental activities that should also be considered to bi~ a governmental function.\n\nIn this connection the history of Article 298 as it ts at preent may be noted.\n\nJn Ranjit Kumar Chatterjee v. Union India (AIR 1969 cal. 95) Basu, l dealing with similar contention advanced before him, observed as follows :\n\n\"(iii) Mr. Dutt, for the petitioner relied strongly upon the provision in Article 298, as amended by the Constitution (Seventh Amendment) Act, 1956, to argue that when Government .takes up a business, it does so in the exercise of its 'executive power' and, therefore, whatever be the agency through which Government may carry on a business, that is identified with the Government.\n\nThis argument, however, overlooks ihe object and H scope of the Amendment of the Article.\n\nPrior to this amendment, it was helo in some cases that since there was :no express provision empowering the Government to enter\n\n' \\\n\nSUKHDEV 1'. BHAGATRAM (A/agiriswami, ].) ti7 3\n\ninto a trade, this could not be done without legislative 1>anct ion-Moti Lal v. State of U.P .. (AIR 1951 All. 257 FB).\n\nThis view was overruled by the Supreme Court in the case t>f Rwn Jawaya v. Srate of Punjuh ( 1955 2 SCR 225 : AIR 1955 SC 549) and the Amendment of 1956 simply codifies the effect of the decision in Ram J awaya's case ( 1955 2 SCR 225 : AIR 1955 SC 549) namely, that legislation is not required to empower a Government to carry on a business, it can do so in the exercise of its executive power. except, of course, where a law is required by some other provision of the Constitution, say, Article 19(6). But the effect of the amendment is not to convert a commercial function of the Government into a governmental function. It is to be noted that even where a State Government carries on a business, it cannot be treated as a governmental function to claim immunity from Union taxation, without a declaration by Parliament by law under Article 289(3)-vide AlR 1964 SC 1486 at p. 1492. If the Central Government carries on a business, it can never be treated as a. governmental function to claim immunity from State taxation because Article 285 ( 1) simply speaks of 'the property of the union' and no business.\n\nIt has been held by the Supreme Court that even when the Government carries on a business departmentally as in the case of Railway, it cannot be treated as a 'sovereign func'ion' for the purpose of 'suability'.\n\nBut that principle would not apply for the purpose of determining the status of its employees under Article 311.\n\nWhen the business is carried on by a Department of the Government, as in the case of Railways. obviously, the employees hold under the Government and not under any separate juristic entity, and so it has been held in numerous cases of Parshotam v.\n\nUnion of India (AIR 1958 SC 36), Moti Ram v.\n\nN.E.F.\n\nRly. (AIR 1964 SC 600). The reason is obvious, namely, where the employer is a Department of the Government, no question of a separate legal entity arises.\n\nThe question, however, becomes different, where the business is carried on through a separate legal person, e.g. a s•atutory corporation or a comoany (vide AIR 1966 SC\n\n1364) because in such a case, the employee is a servant of a legal entity other than the Government.\"\n\nThe reference to Article 297 of the Constitution in relation to the Oil & Natural Gas Commission's case is not apt either. That Artie:·. does not declare that all oil wherever found is the property of the Government. It is only the oil found under the land in the territoria, I waters and the continental shelf that is the property of the Govern. ment. This would be also clear if one looks at the Oil Fields (Regulation & Development) Act, 1948.\n\nThe decision in Tamlin v. Hannaford (1950 1 KB 18) is very much in point in deciding the questions that arise in the present case ..\n\nThat case was concerned with the question whether the British Transport Commission was a servant or an agent of the Crown, It wa~ brought into existence by a special statute which had many of the qualities which belonged to corporations of other kinds.\n\nIt had defined powers which it could not exceed.\n\nThere. were no shareholders to subscribe the capital. The money which the Corporation needed was raised by borrowing and was guaranteed by the Treasury. If it c:ould not repay the loss_ fell on the Consolidated Fund of the UnitcJ Kingdom. All those who used the services which it provided and all whose supplies depended on it were concerned in seeing that it was properly run. The protection of the interests of the taxpayer, user and beneficiary was intruste<l by Parliament to the Minister of Transport. He was given powers over Chis corporation which were as great as 'those possessed by llf man who held all the shar.::s in a private company, subjec:t, however, to a duty to account to Parliament for his stewardlship.\n\nIt was the Minister who appointed the directors, the members of the Commission, and fixed their remuneration. They must give him any information h1! wanted.\n\nHe was given power to give them directions of a general nature and they were bound to obey. The Court of Appeal said :·\n\n\"These are grellt powers but still we cannot regard the corporation as being his agent, any more than a company is the agent of the shareholders, or even of a sole shareholder. In the eye of the law, the corporation is its own master and is answerable as fully as any other person or l!orporation. It is-not the Crown and Has none of the immunities or privileges of the Crown.\n\nIts servants are not civil servants, and its property is not crown property.\"\n\nFurther on they remarked :\n\n\"But the carriage of passengers and goods is a commer· cial concern which }las never been the monopoly of anyone and we clo not think that its unification under state control i£: any ground for conferring Crown privileges upon it.\n\nThe onlv fact in this case which can be said to make th<: British Transport Commission a servant or agent of tht: Crown is the control over it which is exercised by the Minis· ter of Transport: but there h. ample authority both in thil; Court and in the House of Lords for saying that such con· trol as he exercises is insufficient for the purpose.\n\n. .... III the absence of any such express provision, the proper infe-·\n\nrence. In the case, at any rate, of a commercial corporation, Js that it Eicts on its own behalf, even-through it is controlled 'by a government department.\" The case for considering any one of the three corporation..<i under consideration as a public author.it}' is much weaker than that either 1of the 81ritish Broadcasting Corporation or the British Transport Commisnon.\n\nIn Kruse v. Johnson (1898 2 OB 91) fn regard to by-laws iit was said:\n\nSUKHDEV v. BHMlATRAM (A/agiriswami, I.) 67 5\n\n\"But first it seems necessary to consider what is a bylaw.\n\nA by-law, of the class we are here considering, I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance. It necessarily involves rcstricti'vn of liberty of action by persons who come under its operation as to acts which, but for the bye-law, they would be free to do or not do as they pleased. Further, it involves this consequenre-that, if validly made, it has the force of law within the sphere of its legitimate operation.\" Contrast these with the effect of the regulations which we are considering. These regulations apply only to the employees of the corporation. They do not affect the public or any portion of the public, they do not order something to be done or not to be done accompanied' by some sanction or penalty for its non-observance. Indeed it is this test that was applied in the Rajasthan Electricity Board's case ( 1967\n\n3 SCR 377).\n\nIn Halsbury's Laws of England (3rd ed., Vol. 9, p. 40) the law is set out thus :\n\n. \"All regulations made by a corporation and intended to hind not only itself and its officers and servants, but members or the public who come within the sphere of their operation, may properly be called \"bye-laws.'' whether they are valid or invalid in point of law; but the term may also be applied to regulations binding only on the corporation, its officers and servants.\" ·\n\nThe distinction here is brought out between what we would call rules and regulations in our country.\n\nAllen in his. work 'Law and Orders' (3rd ed., p. 324) refers to the question raised in Tamlin v. Hannaford (supra). After noting that it w'cl.S undoubtedly a public authority with large powers, and a considerable measure of control was exercised over it, under the Transport Act. 194 7. by the Minister of Transport; but in its activities, its liabilities, the status of its employees, and its subordination to statute, it was essentially a separate corporate body, in no way comparable to a Government department, goes on to observe :\n\n\"It is interesting to note that had the decision been otherwise everyone of the half-million (approximately) employees of the railways alone would have become a \"servant or agent\" of the Crown, entitled to the privileges of that status.\"\n\nThat unfortunately would he the effect of what my learned brothers bave chosen to d~ in their judgment.\n\nIt is now time to refer to the decisions of this Court relevant t<> the subject.\n\nln th<0 St<1/t' trodi11g Corporation of I 11dia Ltd. & Ors. v.\n\nThe Commercial Tax O.fficer, Visakhapat11om & Ors. [I 964 ( 4) SCR 99] r u'•tice Shah pointed out that :\n\n\"The question whether a corporation is an agent or servant ol: the State must be decided on the facts of each case.\n\nIn the abscnc-: of any statutory prnvision, a commercial corporation acting on its behalf, even if it is con- (rofled wholly or parually by a Government department, wiJI be presumed not ro be a servant or an agent of the State.\n\nWh.:re, hllwcver, the corporauon 1s performing in substance govcrmB.ontal. and not commcrcml, functions, an intcrence will readily be made that it is an agent cf the Government.\"\n\nrhe cac in Tamlin v. Ha1111aford was relied upon for this proposition.\n\nIn Life insurance Corporation of India v. Sun!/ Kumar Mukherjee & Ors. [ l 964 (5) SCR 528] the order under consideration was one issued by the Central Government under section 11 (2) of the Act in exercise ot its powers under that section.\n\nBy that section it was the Central Goveniment that was given the power to alter (whether by way of reduction or otherwise) the remuneration ancl other terms and condit10ns of service to such an extent and m such manner as 1t thought fit.\n\nThat power so conferred was to be exercised notwith- >tanding any thing contained in sub-section ( 1), or in the Indm; trial Disputes Act, 1947, or in any other Jaw for the time being in force, or in any award, settlemct;1t or agreement for the time being in force.\n\nfhc order therefore had tatutory effect and the order of termination of services of the employee was therefore in contravention of the statutory provision.\n\nThat decision cannot therefore support any argument that regulations made under a statute have statutory effect.\n\nJn Andhra Pradesh State Road Transport Corporation v.\n\nThe Income Tax Officer & Anr. [1964 (7) SCR 17] a Constitution B£:nch of this Court held that State Road Transport Corporation is not the State.\n\nIn that judgment the decision in Tamlin v.\n\nHanna/ ord was also referred to and after an exhaustive analysi~ of the various sections vf the Act it was pointed out that :\n\n\" .. all the relevant provisious emphatically bring out the separate personality of the corporation and proceed 011 the basis that the trading activity is run by the rporatron and the profit and loss that would be made as a result of the trad- Jng activity would be the profit and loss of the corporation.\n\nTI1ere is no provision in the Act which has attempted to lift the veil from the face of the corporation and thereby enable the shareholders to claim that despite the form which the organisation bas taken, it is the shareholders who run the trade and who can claim the income coming from it as their own.\" 'The decision in K. S. Ramamurthi Reddiar v. The Chief C.t>mmissioner, Pondicherry [1964 ( 1) SCR 656] is not helpful b deciding what an authority is because the appellate in that case was r quasijudicial authority.\n\nSUKHDEV l', BHAGATR.AM (Alagiriswami, 1.)\n\nIn Kasturilal v. Slate (1966 (1) SCR 375) a Constitution Bench .:if this Court after an exhaustive reference to all the earlier decisions pointed out :\n\n\"It is not difficult to realhe the significance and impor lance of making such a dislinction particularly at the present time when, in the pursuit of their welfare ideal, the Governments of th<! States as well as the Government of India naturally auc1 legitimately enter into many commercial and other undertakings and activities which 1,1ave no relation with the traditional .:oncept of governmental activiues in which the exercise of sovereign power is involved. It is necessary to limit the area of these aairs of the State in relation to the exercise of sovereign power, so that if acts arc committed t,~\"Govemment employees in relation to other activities which may be conveniently described as non- . governmental or non-sovereign, citizens who have a cause\n\nof action for damages should not be precluded from making their claim against the State. That is the basis on which the area of the State immunity against such claims must be limited.\"\n\nlt would, therefore, be wrong to consider the words \"other auti1oriti.:s' in Article 12 as including any corporation which docs not exercise part of the government'al functions of the State.\n\nThe Rajastha11 Staie Electricity Board v. Moha11 Lal (1967 (J).\n\nSCR 377) is a very important decision.\n\nAfter noting the mea-.1ing of the word \"authority\" given in Webster's Third New International Dictionary the majority went on to point out that the dictionary meaning of the word \"authority\" y,•as wide enough to include all bOdics created by a statute on which powers arc waferred to carry out governmental or quasi-governmental fu®tions. The first point to be noted i.s that none of the functions with which the three corporations under consideration are concerned, arc governmC'atal or quasi-governmcntai functions. The work done by the Oil & Natural Gas Commission always used to be done by the various oil companies like Bitrmah Shell, Standard .Vacuum etc. The work done by the Life' Insurance Corporation was done by various insurance compa!ilies and the Industrial Finance Corporation is merely carrying out functions which any bank can carry on.\n\nWhen the majority further went on to observe. :\n\n'The expression \"other authorities\" is wide enough to iacludc within it every authority created by a statute and functioning within the territory of India, or under the co11trol of the Government of India.\"\n\nl t can onJy be with regard to authority exercising governme1lal or quasi-governmental functions.\n\nThe clue to the deeision is given really in the fol10\\,/ing passage :\n\n\"The circumstance that the Board under the Electricity Supply Act is required to carry n some activities of the na-\n\n' ture of trade or commerce docs not, therefore, give any indication that the Board must be excluded from the scope of the word \"State\" as used in Art. 12.\n\nOn the other hand, there arc provisions in the Electridty Supply Act which clearly show tb•a.t the powers co'.1fcrred on the Board includ.;; power to give directions, the disobedience of which is punishable as a criminal offence ........ The Board was clearly an authority to which the provisions of Part Ill of the Constitution were applicabk.\"\n\n1 his makes it clear that the fact that the lloard carried on 'Jct!· vities in the nature of trade or commerce could be a ground for cxc:luding it from the scope of word \"State'' but for the fact that it was given powers to give directions the disobedience of which was punish able as a criminal offo.Jcc.\n\nWe need not now p•ause to consider whether where a body carri.::s out functions both with regard to trade and commerce and also c:xerdscs powers, which only a State can exercise like giving directions the disobedience of which is punishable as a criminal offence, the obligations and rcstrictioas which are imposed by the Constitution 011 the exercise of those powers by the State should not be confined to those powers :ind with regi.rd to thi: carrying on the tiade and commerce it should not be treated as any other ordinary commercial conrcrn.\n\nJustice Shah s concurring judgment bring out. in sharp foct:s 'he :rJllo of the <lccisio,1 by the majority.\n\nHe said :\n\n\"The Board is an authority invested by statute with ccr- ; ain sovereign powers of the State ...... und to issu~ directions under certain provisions 0f the Act and to enforce compliance with those directions.\n\nThe Board is also invested by statute with extensive powers of control over electricity undertakings.\n\nThe power to make rules and rcgulatiO'tls and to administer the Act is in substance the sovereign power ?f the State delegated to the Board. The Board is, in my Judgment, \"other authority\"' within the meaning of Art. l 2 of the Constitution.\n\nThe expression \"authority in its etymological sense me.ans a ho<!Y. fa.vested with powe~ to command or give an\n\n.ltunate dccmon, or enforce obed1cncc, or having a legal .right to COIJlllland and be obeyed.\" ........ In considering\n\nwehcr a st..ltt:ory or constittional body is an authority, :•1th1_n the mcanms of Art. 12: 1t would be necessary to bear\n\n1~ mm~ •,1ot on1'j whether agamst the authority, fundamental rights m terms imsolutc arc intended to be enforced but also whether it was intended by the Constitution-make~ that 1l1c\n\nauth?riy was invcste_d with the sovereign power to , impose restnctwos on very important und basic fundamental frc.~ . • do ms.\n\nSUKHDEV v. BHAG.ATRAM (Alagiriswami, J.) 679\n\nIn my judgmeiat, authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression \"State\" as defined in Art. 12.\n\nThose authorities which arc invested with sovereign power, i.e.; power to make rules or regulatiC'ns and to administer or enforce them to the detriment of citiicns and others fall withr,1 the definition of \"Sr.ltc\" in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State arc not, in my judgment, \"State\" within the meaning of Art. 12 of the Coru; titution.''\n\nThis is not in any way contrary to what majority decided but only explains and brings out in bold relief what has been laid.down hy the majority.\n\nIn Co-op. Bank v. lnd11st. Tribunal (1970 (I) SCR 205) it 11as ht>ld:\n\n''The principle that rules framed under a statute have tile force of statute docs not apply to bye-Jaws of a COOperati\\\"C\n\nsociety.\n\nThey merely govern the intem.il management, business or administration of a society and may be binding between the persons effected by them but arc neither law nor do they have the force of Jaw.\n\nThey arc just like conditions of service laid down by contract between the parties, or like' bye-laws under the Articles of Association of a company under the Comv.inics Act, or Staading Orders certified\n\nunder the Industrial Employment (Standing Orders) Act,\n\n1946. Therefore, the circumstances that in granting relief, the Tribunal may have to vary the special bye-laws framed by the C-Ooperative Banks docs not lead to the inference that the Tribunal would be making orders ca,1trary to law and\n\ntherefore is incompetent to grant the reliefs claimed.\n\nTlic Jurisdiction granted to the Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering exit\n\niog Jaws and enforcing existing contracts. The Tribunal has the jurisdiction even to vary contracts of service between employer and employees.\n\nFurther in, the Andhra Act th.: re' is no prohibition that the conditions of service prescribed ·; m~ not to be altered.\n\nTherefore the reliefs collid only be grantcJ by the Industrial Tribunal and could not fall within the scope of the Registrar's powers under the Cooperative Societies Act.\"\n\nThe main contention on behalf of the three organisations put forward by the learned Addl. Solicitor Genera1 was that if we hold that these corporations are State and the regulatia,1s as having the force of law there would be no room for any r.eference to the Indust1rial Tribunal under the Industrial Disputes Act, and that would be_ a great disadvantage from which the labour would suffer.\n\nfo. Warehousing Corp. v. Tyagi (1970 (2) SCR 250) it was hc:ld:\n\n\"A declaration to enforce a contract of personal service will :Jot normally be granted.\n\nThe exceptions are: (i) appropriate cases of public servants who have been dismissed frcm service in contravention of Art. 311; (ii) dismissed woi:kers under inciustrial and labour law; and (iii) when a statutory b-xl.y has acted in breach of a mandatory obligation imposed by a statute.\"\n\nOn the facw of this case it was held that a breach had been committed\n\nby the appelfamt of regulation 16 ( 3), but such an oder made in breach of the regulations would only be contrary to the terms and conditions of relationship between the appellant and the respondent and i~ would not be in breach of any statutory obligatian because the Act docs not gimra!D.tee any statutory status to the respondent, nor docs it impose :.my obligation on the appellant in such matters.\n\nTherefore, the violation of the regulation could not have the effect of treating the employee as still in service or entitling him to reinstatement. This case was rightly relied upoa by the learned Addi. Solicitor Qenemi as supporting his point.\n\nThe decisio11 in l.A.C. v. Sukhdeo Rai (1971 (Supp) SCR 510) had to consider the case of the Indian Airlines which is one of the parties in the cases before us.\n\nThis Court referred to its earlier decisions in Tewari'~ case (1964(3) SCR 55) and Rajasthan State Electricity Board case (supra) and distinguished the case in Life Insurance Corporation of India v. Mukherjee (supra). It also explained Naraindas Barot's ca~ (1966 (3) SCR 40). It then held that :\n\n\"Though made under the power conferted by statute, the regulations merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporalion can make with its servants or the grounds on which it can. terminate them. That being so, and the Corporation\n\nhvg undoubtedly power to dismiss its employees, th1: dismissal of the respondent was with jurisdiction and although\n\nSUKHDEV v. BHA1GATRAM (AlagirisWami, !.)\n\nit was wrongful in the sense of its berag in breach of the terms •and conditions which governed the relationship between the Corporation and the respondent, it did subsist.\n\nThe present case, therefore, did not fall under any of , the three well-recognised exceptions laid down by this Court; hence the respondent was only entitled to damages and no.t to the declaration that his dismissal was null and void.\"\n\nMy learned brothers have referred to Naraindas Barot's case (1966 (3) SCR 40) and state that as it was decided by the Constitution Bench, the U.P. Warehousing Corporation's case (1970 (2) SCR\n\n250] and the Indian Airlines' case\n\n(1971 (2) SCR 192 ·: 1971 (Supp) SCR 510) are in direct conflict with former decision in 'Nttraindas Barot's case. The question whether the Road Transport Corporation was a State within the meaning of that term 11,1der Art. 12 of the Constitution was neither raised nor decided there. Nor was the question whether the regulations under consideration in that case were of a statutory charactr raised or decided. That case is not an authority for the proposition that the Road Transport CorporatiO'a was a, State or that its regulations had the effect of law. The discitssion in this case would therefore have to proceed on the lYasis that it lays down no ratio and the U. P. Warehousing Corporation and the Indian Airlines cases are still good law. The Sirsi Municipality case (1973 (1) SCC 409) antj Tewari's case (1964 (3) SCR 55) stand, however, on 'a different footmg.\n\nThey are both concerned with bodies which were undoubtedly local bodies and therefore a State and they could prO'Vide no support for the view which my learned brothers have taken.\n\nIt only remains to deal with the two-poh1ts made by the learned Addi. Solicitor General tor the Corporations, One was that if the regulations are held to be Jaw the remedy under the Industrial Dispute.s Act would not be available to the employees of these Corpol'ations because under the Industrial Dispute.s Act the Tribunals have the right to form a new contract for the parties if the employment I~ a matter of contract but it can1.1ot do, so if it is a matter of statute and the decision that the regulations are law would have the result of causing detriment to the interest of the employees. I do not think that that consideration need deter us from holding that the regulations are law if it could be so held on other grounds, . .. \\.\n\nAnother argume.1t of his was that these employments a1e u matter of personal service and therefor~ the .test whether the contract could 13--470Sup.CI/75\n\nbe specifically enforced should be taken into consideration in deciding whether a declaration th•at a dismissal of an employee in any case is void and he should be reins1ated.\n\nI do not think that in the mod1rn commercial and industrial mrld the idea of personal ervice has much relevance. It might have had its place in the context of 19th Century.\n\nThere is no question of presonal service in a large commercial or industrial organisation and this cdasideration need not therefore stand in the way of our accepting the employees' contention if it is otherwise acceptable.\n\nThe various provisions contained in respect of the various organisations like the State Raad Transport Corporation or the British Transport CommissicY.1 in Tar/in v. Hannaford would show that the power of c:ontrol or even the financial interest of the State in these Corporations was as high as, if not higher than, that of the State in these corporations under consideration. So none of the considerations mentioned by my le-arned brothers would help them to reach the conclusion that these corporations are the State. The power of the owner in hire-purchase agreement and the power of the mortgages under s. 69 of the Transfer of Property Act to sell the mortgaged property by exercisrag\n\nhis right of private sale can be usefully compared in connection with the powers conferred on the Industrial Finance Corporation. Nor do I think that section 25 of the Oil & Natural Gas Commission Act, 1959 would make it a State. The test laid down for deciding what is a State r.1 the Ra; asthan Electricity Board case, that is of commanding other people to do or not to do a thing on pain of punishment, is not there. I do not see how, 'llS long as that decision holds the field, it is open to this Bench to take a different view.\n\nAll the other decisions of thi~ Court have followed only that view. The decision of my learned brothers is unsupportable i:a principle against the weight of authority and frought with serious consequences. Suddenly overnight by the fiat of this Court all these bodies which till yesterday were not considered to be a State or other authority would be considered to be other authority and their employees entitled to provisions of Part III of the Constitution.\n\nWe would be opening 'a veritable Pandora's box.\n\nThe: protection given to Government servants in ndia have no parallels anywherc in the world. They were getting on well enough till the Government of India Act, 1935. Till then there was no statutory protection given to them [See Venkata Rao's case (supra) and Rangachari's case (suprd)]. It is a well known fact that it was the Jack of confidenee of the British Government in the capacity of the Indians to manage their own affairs that led to section 240 becoming part of the Govemment of India Act, 1935. This section is a forerunner of the prese,1t Article\n\nSUKHDEV I'. HHA.:; ATRAM (Alagiriswami, !.) 61! 3\n\n311 of the Constitution. It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935 with regard to Government servants. Be that as it may, there at least we have got the saving grace of Article 310. One's experie•ace in the various High Courts as well as in this Court would have made it amply clear that not merely Art. 311 but Articles 14 and 16 are resorted to by various Government servants to take up matters till the Court of the last resort even in petty matters like seniority, scale of pay and even minor punishments. Many a time have the learned Judges of this Court felt unhappy about the time of the Court\n\nbeing taken for days together by petty matters relati'ag to Government servants and wished that there were a separate Court for deaiing with these matters. By deciding that organis•ations like the ones under consideration in these cases are 'other authority' and the regulations they make is law we would at once at one stroke be creating a large mass of neo-Governmen, t servants and Articles 14 and 16 would provide amply opportunities for endles litigation.\n\nOne would readily agree that labour whether employed by private industry or industry run by the Government should be treated equally. But that one class of labour, that is labour employed in industry run by the Government, should be more equal than others is a proposition which .no reasonable minded person can agree to. The employees of the public sector industries would get even more advantages than even the Government servants to whom Articles 309, 310 and 311 apply. In the name of industrial action life will be paralysed. . They are not subject to same rules and regurations or discipline to which the Government servants are subject. They would be different from the days when they were treated like employees of private firms and were subject to the ordinary law of master and servant and become entitled to be treated even better than the Government employees. One has only to refer to one's experience of what has happened to the Life Insurance Corporation or the various mtionalised banks since they were nationalised. Misplaced sympathy is sometimes responsible for our attitude to labour. These days labour is not the weak and helpless force that it was in the 19th Century.\n\nThey are strong, well organised, rich and powerful. In England the Trade Union Congress is able to dictate to suecessive Governments on all sorts of matters. Jn AmeriC'a it is said that industrial managers have to wait hat-in-hand before the officers of the trade union bqsses.\n\nGeorge Meany of the A.F.L. and C.1.0. is able to dictate to the Government. . One has only to refer to Jimmy H~!Ia @.f the Teamsters' Union in America to know how powerful trade unions are.\n\nTo the legitimate armoury of labour like strike and picketing and industrial negotiations this country has dubious distinction .of having added 'gherao', a most uncivilised form of wrongful confinement in order to force concessions from managements and even heads of institutions, even educational institutions. There is no question there of any negotiations. The management or the head of the institution has to either surrender or be prevented frolil eating or even answering calls of nature and to be kept )ncommunicado with the outside world.\n\nThese are not dire forebodings of what will happe, n but merely an enumeration of what is actually happening.\n\nWith the tre unions\n\n· <:oming up to this Court even in matters of minor punishment of a single workman and sometimes even against interim orders of industrial tribunals it would be litigants paradise.\n\nI huve f'ad the judgment of my learned brother Mathew, J. with great in•'!rest and respec; t for the vast amount of learning and philosophical considemtion that he has bestowed on the subject. It is obvious therefrom, however, that he realises that the earlier decisions of thi3 Court do not support the view taken by him or my other learned brethren. What he says about labour and the public service corporations, at best esablish that they shoud be subject to control. But it does not establish that public service corporations owned by the Government should be treoated differently from other public service corporations. That is why I said it is reasonable that labour in both cases should be treated alike. It does not establish that labour in public service corporations owned by Government should be treated like GovP, rament servants engaged in administering or enforcing functions and duties connected with governmental functions.\n\nI would hold that Oil & Natural Gas Commission, Life lnsurnnce Corporation an, d the Industrial Finance Corporation are not authorities within the meaning of Article 12 of the Constitution and regulations framed by them have no force of law. The employees of these sl'atuto9.'/bodies have no statutory status and they are not entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions.\n\nORDER By order of the Court.\n\nRules and Regulations of .the ' Oil and Natural Gas Co11ullis!1ion, Life Insurance Corporation, Industrial Finance Corporation ho.vc the force of law.\n\n The employees of these statutory bc>gies have a statutory status and H they are entitled to a declarati~ ot being in employment whe11 theit dismissal or rernoval is in contravention of statutory provisions.\n\nSUKHDEV v. BHAGATRAM (Alagiriswamy, !.) 6 8 5\n\nThese statutory bodies are authorities within the meaning of Art. 12 of the Constitution.\n\nIn Civil Appeal No. 2137 of 1972, the declaration granted by the High Court that the order removing Bhagatram Sardarsingh Raglrnvansi from service is null and void and that he continues in service is upheld. The writ of mandamus issued by the High Court is also upheld.\n\nIn Civil Appeal No. 1655 of 1973, the writ of mandamus granted by the High Court is upheld.\n\nIn Civil Appeal No. 1655 of 1973, the writ of mandamus granted Corporation is an authority within the meoaning of Art. 12 of the Constitution for the reasons given in this judgment. The conclusion of the High Court that the regulations have not the force of law is set aside.\n\nThe conclusion of the High Court that Corporation should not be permitted to enforce the regulations mentioned in clauses ( 1) and ( 4) of Regulation 25 is upheld.\n\nIn Civil Appeal No. 115 of 1974, the Judgment of the High Court is set aside. The Finance Corporation is 'an authority within the meaning of Art. 12. The Regulations of the Corporation have the force of law. The conclusion of the High Court that the Association is not entitled to raise a plea of discrimination on the basis of Art. 16 is set aside.\n\nThe appeals are disposed of accordingly.\n\nThe P'arties will pay and bear their own costs in all these appeals.\n\nP. H.P.", "total_entities": 435, "entities": [{"text": "SUKHDEV SINGH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "SUKHDEV SINGH & ORS", "offset_not_found": false}}, {"text": "BHAGA TRAM SARDAR SINGH RAGHUVANSHI AND ANR", "label": "RESPONDENT", "start_char": 27, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "BHAGATRAM SARDAR SINGH RAGHUVANSHI AND ANR", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 92, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "A. N. RAY, C.J.", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 109, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "Y. v. CHANDRACHUD", "label": "JUDGE", "start_char": 123, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "Y. v. CHANDRACHUD", "offset_not_found": false}}, {"text": "A. c. GUPTA, JJ.", "label": "JUDGE", "start_char": 163, "end_char": 179, "source": "metadata", "metadata": {"canonical_name": "A. c. GUPTA, JJ.", "offset_not_found": false}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 345, "end_char": 352, "source": "regex", "metadata": {"statute": null}}, {"text": "Oil and Natural Gas Commission Act, 1954", "label": "STATUTE", "start_char": 721, "end_char": 761, "source": "regex", "metadata": {}}, {"text": "cenral Government", "label": "ORG", "start_char": 816, "end_char": 833, "source": "ner", "metadata": {"in_sentence": "show that it acts as 1an agency of the cenral Government."}}, {"text": "provisions of the Jndustrial Finance Corporation Act, 1948", "label": "STATUTE", "start_char": 839, "end_char": 897, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 1023, "end_char": 1041, "source": "ner", "metadata": {"in_sentence": "The provisions of the Jndustrial Finance Corporation Act, 1948, creating the Industrial Fina, nce Corporation show that the Corporation is under the complete contl'ol and managemwt\n\nf the Central Government."}}, {"text": "Provisions of the Life Insurance Act, 1956", "label": "STATUTE", "start_char": 1043, "end_char": 1085, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 1716, "end_char": 1723, "source": "regex", "metadata": {"linked_statute_text": "Provisions of the Life Insurance Act, 1956", "statute": "Provisions of the Life Insurance Act, 1956"}}, {"text": "A. N'. Ray", "label": "JUDGE", "start_char": 1757, "end_char": 1767, "source": "ner", "metadata": {"in_sentence": "12 of the Constitution,\n\nHELD: (Per A. N'.", "canonical_name": "A. N. RAY, C.J."}}, {"text": "Y. V. Chandrachud", "label": "JUDGE", "start_char": 1774, "end_char": 1791, "source": "ner", "metadata": {"in_sentence": "Y. V. Chandrachud and A. C. Gupta, JJ.)", "canonical_name": "Y. v. CHANDRACHUD"}}, {"text": "A. C. Gupta", "label": "JUDGE", "start_char": 1796, "end_char": 1807, "source": "ner", "metadata": {"in_sentence": "Y. V. Chandrachud and A. C. Gupta, JJ.)", "canonical_name": "A. c. GUPTA, JJ."}}, {"text": "Art. 162", "label": "PROVISION", "start_char": 5544, "end_char": 5552, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 5695, "end_char": 5708, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 5743, "end_char": 5756, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 5779, "end_char": 5792, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 6019, "end_char": 6032, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1970] 2 S.C.R. 250", "label": "CASE_CITATION", "start_char": 6335, "end_char": 6354, "source": "regex", "metadata": {}}, {"text": "Owtrnl Government", "label": "ORG", "start_char": 7309, "end_char": 7326, "source": "ner", "metadata": {"in_sentence": "Terms of the regulation are not temis of contra:t. A corporation had no power to alter or modify or rescind the provisions of the regulations at its discretion which it could do in respect of the terms of contract that it may wish to enter with its G employees independent of these regulations, So far as the terms of the regulations are concerned the actions of the corporation are controlled by the Owtrnl Government."}}, {"text": "U.P. Warehousing Corporation", "label": "ORG", "start_char": 7358, "end_char": 7386, "source": "ner", "metadata": {"in_sentence": "The decisions, therefore, in U.P. Warehousing Corporation and Indian Airlines Corporation are in diret conflict with the decision of this Court in 1'arai11das Barot Divisional Co111ro//er S.T.C., [1966] 3 S.C.R. 40 and are wrongly decided."}}, {"text": "Indian Airlines Corporation", "label": "ORG", "start_char": 7391, "end_char": 7418, "source": "ner", "metadata": {"in_sentence": "The decisions, therefore, in U.P. Warehousing Corporation and Indian Airlines Corporation are in diret conflict with the decision of this Court in 1'arai11das Barot Divisional Co111ro//er S.T.C., [1966] 3 S.C.R. 40 and are wrongly decided."}}, {"text": "[1966] 3 S.C.R. 40", "label": "CASE_CITATION", "start_char": 7525, "end_char": 7543, "source": "regex", "metadata": {}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 7728, "end_char": 7735, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 298", "label": "PROVISION", "start_char": 8342, "end_char": 8350, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 8429, "end_char": 8436, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 9235, "end_char": 9242, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 9518, "end_char": 9523, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 9532, "end_char": 9549, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 9626, "end_char": 9639, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 10670, "end_char": 10683, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 289", "label": "PROVISION", "start_char": 10923, "end_char": 10931, "source": "regex", "metadata": {"statute": null}}, {"text": "Union of India", "label": "ORG", "start_char": 10965, "end_char": 10979, "source": "ner", "metadata": {"in_sentence": "289 of the Constitution empowers the Union of India to impose a tax in respect of trade or business carried on by on behalf of the State."}}, {"text": "Mathew", "label": "JUDGE", "start_char": 11080, "end_char": 11086, "source": "ner", "metadata": {"in_sentence": "[641GH]\n\nPer Mathew J. (Concurring)\n\nThe concept of State has undergone drastic changes in recent years.", "canonical_name": "Mathew"}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 13993, "end_char": 14000, "source": "regex", "metadata": {"statute": null}}, {"text": "Per Alagiriswami", "label": "JUDGE", "start_char": 18399, "end_char": 18415, "source": "ner", "metadata": {"in_sentence": "[6580-G]\n\n[Per Alagiriswami."}}, {"text": "1.1.C.", "label": "RESPONDENT", "start_char": 19939, "end_char": 19945, "source": "ner", "metadata": {"in_sentence": "An institution like the 1.1.C. which has its offices and employees all over the country has necessarily got to have a standard set of conditions of service for its various classes of employees."}}, {"text": "A. K.\n\nSen", "label": "LAWYER", "start_char": 22242, "end_char": 22252, "source": "ner", "metadata": {"in_sentence": "2137 /72), A. K.\n\nSen (In CA 1655/73), B. Dutta for the Appellants."}}, {"text": "B. 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Ramwnurthy, Janardan Sharma and Jitendra Sharma for D Appellant in C.A. No."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 22446, "end_char": 22456, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. c. Agarwala, S. S.\n\nBhatnagar,\n\nV. J.\n\nFrancis."}}, {"text": "S. c. Agarwala", "label": "LAWYER", "start_char": 22458, "end_char": 22472, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. c. Agarwala, S. S.\n\nBhatnagar,\n\nV. J.\n\nFrancis."}}, {"text": "S. S.\n\nBhatnagar", "label": "LAWYER", "start_char": 22474, "end_char": 22490, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. c. Agarwala, S. S.\n\nBhatnagar,\n\nV. J.\n\nFrancis."}}, {"text": "V. J.\n\nFrancis", "label": "LAWYER", "start_char": 22493, "end_char": 22507, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. c. Agarwala, S. S.\n\nBhatnagar,\n\nV. J.\n\nFrancis."}}, {"text": "M. K. Ramamurthy J. Ramamurthy", "label": "LAWYER", "start_char": 22550, "end_char": 22580, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthy J. Ramamurthy for Respondents (In CAs."}}, {"text": "F. S. Nariman", "label": "LAWYER", "start_char": 22677, "end_char": 22690, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Addi.", "canonical_name": "F. S. Narima11"}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 22721, "end_char": 22730, "source": "ner", "metadata": {"in_sentence": "Gen. of India, /. N. Shroff for Respondent No."}}, {"text": "P. K. Pillai", "label": "LAWYER", "start_char": 22775, "end_char": 22787, "source": "ner", "metadata": {"in_sentence": "P. K. Pillai for Intervener (In CA No."}}, {"text": "F. S. Narima11", "label": "LAWYER", "start_char": 22825, "end_char": 22839, "source": "ner", "metadata": {"in_sentence": "F. S. Narima11, Addi.", "canonical_name": "F. S. Narima11"}}, {"text": "V. J. Taraporewala", "label": "LAWYER", "start_char": 22868, "end_char": 22886, "source": "ner", "metadata": {"in_sentence": "Gen. of India, V. J. Taraporewala,\n\n0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 22892, "end_char": 22901, "source": "ner", "metadata": {"in_sentence": "C. Mathur, Moha11 Prasad Jha and K. J. John for the Applicant/ Intervener (Air India)."}}, {"text": "Moha11 Prasad Jha", "label": "LAWYER", "start_char": 22903, "end_char": 22920, "source": "ner", "metadata": {"in_sentence": "C. Mathur, Moha11 Prasad Jha and K. J. John for the Applicant/ Intervener (Air India)."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 22925, "end_char": 22935, "source": "ner", "metadata": {"in_sentence": "C. Mathur, Moha11 Prasad Jha and K. J. John for the Applicant/ Intervener (Air India)."}}, {"text": "RAY", "label": "JUDGE", "start_char": 23020, "end_char": 23023, "source": "ner", "metadata": {"in_sentence": "The following Judgments were delivered\n\nRAY, C.J.-There are two questions for consideration in these appeals."}}, {"text": "Natural Gas Commission Act 1959", "label": "STATUTE", "start_char": 23190, "end_char": 23221, "source": "regex", "metadata": {}}, {"text": "Industrial Finance Corporation Act, 1948", "label": "STATUTE", "start_char": 23227, "end_char": 23267, "source": "regex", "metadata": {}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 23559, "end_char": 23577, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Finance Corporation Act, 1948", "statute": "the Industrial Finance Corporation Act, 1948"}}, {"text": "Article 12", "label": "PROVISION", "start_char": 23707, "end_char": 23717, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Finance Corporation Act, 1948", "statute": "the Industrial Finance Corporation Act, 1948"}}, {"text": "SUKHDEV V. 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BHAGATRAM (Ray, C, J,) 625\n\nThe statutes for consideration are the Oil and Natural Gas Commis<ion Act, 1956; the lndutrial Finance Corporation Act, 1948; and the Life Insurance Corporation Act, 1956."}}, {"text": "Finance Corporation Act, 1948", "label": "STATUTE", "start_char": 23854, "end_char": 23883, "source": "regex", "metadata": {}}, {"text": "Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 23893, "end_char": 23929, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Oil and Natural Gas Commission Act, 1959", "label": "STATUTE", "start_char": 24055, "end_char": 24095, "source": "regex", "metadata": {}}, {"text": "section 12", "label": "PROVISION", "start_char": 24613, "end_char": 24623, "source": "regex", "metadata": {"linked_statute_text": "The Oil and Natural Gas Commission Act, 1959", "statute": "The Oil and Natural Gas Commission Act, 1959"}}, {"text": "Government of India", "label": "ORG", "start_char": 25018, "end_char": 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Johnson (1898) 2 Q.B. 91 for the view that not all by-Jaws have the force of law."}}, {"text": "Indian Airllnes Corporation", "label": "ORG", "start_char": 50188, "end_char": 50215, "source": "ner", "metadata": {"in_sentence": "In U.P. Warehousing Corporation and Indian Airllnes Corporation cases the terms of the regulations were treated as terms and cond.it1ons of relationship between the Corporation and its employees."}}, {"text": "section 45", "label": "PROVISION", "start_char": 50810, "end_char": 50820, "source": "regex", "metadata": {"statute": null}}, {"text": "Air Corporations Act, 1953", "label": "STATUTE", "start_char": 50828, "end_char": 50854, "source": "regex", "metadata": {}}, {"text": "Naraindas Baro", "label": "OTHER_PERSON", "start_char": 51515, "end_char": 51529, "source": "ner", "metadata": {"in_sentence": "The decisions of this Court in U.P. 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Article 12 bas been\n\nbeid by this Collrt in the Rajasthan Electricity Board caso to be wide enough t'6 include within it every authority created by a statute aud within the territory of India, or under the control of the C'\"°\"'*uwwwt of India."}}, {"text": "India", "label": "GPE", "start_char": 56295, "end_char": 56300, "source": "ner", "metadata": {"in_sentence": "1be expression \"other authorities\" in Article 12 bas been\n\nbeid by this Collrt in the Rajasthan Electricity Board caso to be wide enough t'6 include within it every authority created by a statute aud within the territory of India, or under the control of the C'\"°\"'*uwwwt of India."}}, {"text": "Article 12", "label": "PROVISION", "start_char": 56454, "end_char": 56464, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 12", "label": "PROVISION", "start_char": 56726, "end_char": 56736, "source": "regex", "metadata": {"statute": null}}, {"text": "British Boardcasting Corporation", "label": "ORG", 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United States, any activity in which ;, State engages within the limits of its police power is a legitimate governmental activity.\""}}, {"text": "Lifo Insur::mce Corporation", "label": "ORG", "start_char": 116434, "end_char": 116461, "source": "ner", "metadata": {"in_sentence": "In the Jigh.t of this discussion let us see whether the Lifo Insur::mce Corporation and the Industrial Finance Corporation would come within the ambit of 'state'."}}, {"text": "Life Insurance Corporation Act", "label": "STATUTE", "start_char": 116573, "end_char": 116603, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 572", "label": "PROVISION", "start_char": 116895, "end_char": 116901, "source": "regex", "metadata": {"statute": null}}, {"text": "Road Transport Corporations Act, 1950", "label": "STATUTE", "start_char": 118557, "end_char": 118594, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 118647, "end_char": 118661, "source": "ner", "metadata": {"in_sentence": "The question in that case was whether the Road Transport Corporation constituted under the Road Transport Corporations Act, 1950, was carrying on business on behalf of the State of Andhra Pradesh and that the income of the Corporation was exempt from liability to pay income tax."}}, {"text": "Central and State governments", "label": "ORG", "start_char": 119448, "end_char": 119477, "source": "ner", "metadata": {"in_sentence": "When it .is seen from the provisions of that Act that on liquidation of the Corporation, its assets should be divided among the shareholders, namely, the Central and State governments and others, if any, the implication is clear that the benefit of the accumulat~ income would go to the Central and State governments."}}, {"text": "Article 12", "label": "PROVISION", "start_char": 120842, "end_char": 120852, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 12", "label": "PROVISION", "start_char": 121186, "end_char": 121196, "source": "regex", "metadata": {"statute": null}}, {"text": "Wilberfor.;-", "label": "OTHER_PERSON", "start_char": 126537, "end_char": 126549, "source": "ner", "metadata": {"in_sentence": "Lord Wilberfor.;-:, in speaking about the anomaly created by judicial decision in the area nf contractual and statutory employments, has said :\n\n(I) s~: Jc1stic: Ible •1.!i1 \\1: \"'.1tiT: v. !"}}, {"text": "s. 216", "label": "PROVISION", "start_char": 126744, "end_char": 126750, "source": "regex", "metadata": {"statute": null}}, {"text": "Evershed", "label": "OTHER_PERSON", "start_char": 128599, "end_char": 128607, "source": "ner", "metadata": {"in_sentence": "Lord Evershed pointed out :\n\n \"Much may turn on the prcmis~ to a consideration of the meaning of the conditions-whether in a contract of ser- ."}}, {"text": "Ministry of Health and Local Govm1mcnt of Northern Trdand", "label": "ORG", "start_char": 128938, "end_char": 128995, "source": "ner", "metadata": {"in_sentence": "vie~ made in the t\\vcntieth ccnturv \\\\'ith a statutory board\n\nsuch as the respondent board (whose cstablishe,.r\" officers participate in the pension scheme contained in regulations promulgated by the Ministry of Health and Local Govm1mcnt of Northern Trdand)."}}, {"text": "Emhasis", "label": "JUDGE", "start_char": 129586, "end_char": 129593, "source": "ner", "metadata": {"in_sentence": "Emhasis added."}}, {"text": "Sterndale M. R.", "label": "OTHER_PERSON", "start_char": 130894, "end_char": 130909, "source": "ner", "metadata": {"in_sentence": "1)\n\nIn Hanson v. Radclifie U.D.C. (2), Lord Sterndale M. R. Said \"The power of the court (o make declarations, when it is a question of detcrmini!lg the rights of two parties to a contract, is now almost unlimited, or limired only by the discretion of the court.\""}}, {"text": "s1", "label": "PROVISION", "start_char": 133570, "end_char": 133572, "source": "regex", "metadata": {"statute": null}}, {"text": "ALAGJRISWAMI", "label": "JUDGE", "start_char": 134139, "end_char": 134151, "source": "ner", "metadata": {"in_sentence": "ALAGJRISWAMI, J. In his judgment in Writ Petition No."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 134627, "end_char": 134640, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mysore Iron & Steel Limited. Bhadravati", "label": "ORG", "start_char": 135948, "end_char": 135987, "source": "ner", "metadata": {"in_sentence": "It was a private limi- H ted company registered under the name of Mysore Iron & Steel Limited."}}, {"text": "S. 536", "label": "PROVISION", "start_char": 136050, "end_char": 136056, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore Government", "label": "ORG", "start_char": 136078, "end_char": 136095, "source": "ner", "metadata": {"in_sentence": "bv the Mysore Government."}}, {"text": "Mysore Iron & Steel Ltd.", "label": "ORG", "start_char": 136405, "end_char": 136429, "source": "ner", "metadata": {"in_sentence": "Under the Articles of Association of the company the first Directors of the company were Minister-in- Charge of the Industries Portfolio in the Mysore Government, the Secretaries to the Mysore Government in the Finance Department, and in the Commerce and Industries Department, the Managing Director of the Mysore Iron & Steel Ltd., and the Chief r:onsm:itor of\n\nForest~ of the Mysore Government."}}, {"text": "Government of Mysore", "label": "ORG", "start_char": 136618, "end_char": 136638, "source": "ner", "metadata": {"in_sentence": "The Governor of Mysor.c was entitled to appoint all or a majority of the members of the Board of Directors so long as the Government of Mysore held rrot bs than\n\n51 per cent of the total paid-up capital of the company or so long as the Governor continued to be intesrested in any fiduciary capacity."}}, {"text": "Parga Tools Corporation", "label": "ORG", "start_char": 137591, "end_char": 137614, "source": "ner", "metadata": {"in_sentence": "In Parga Tools Corporation's case (sPprn) the comp:rny w:is incorporated under the Indi<:n Companies Act."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 137679, "end_char": 137692, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Union Government", "label": "PETITIONER", "start_char": 137699, "end_char": 137715, "source": "ner", "metadata": {"in_sentence": "The Union Government and the Government of Andhra Pradc>h bctwee;1 them '1eld 56 per cent and 32 per cent 'Of its shares respectil'dy."}}, {"text": "Government of Andhra Pradc", "label": "ORG", "start_char": 137724, "end_char": 137750, "source": "ner", "metadata": {"in_sentence": "The Union Government and the Government of Andhra Pradc>h bctwee;1 them '1eld 56 per cent and 32 per cent 'Of its shares respectil'dy."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 138292, "end_char": 138305, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Phillimore", "label": "JUDGE", "start_char": 142941, "end_char": 142951, "source": "ner", "metadata": {"in_sentence": "Where a. statu1:e setting up a corporation so provides, such a corP?ration, can\n\neasily be idetified as the agent of the State as.1!1 Graham\n\nv. Public Works Commissioners(') where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals."}}, {"text": "Hindustan Steel", "label": "ORG", "start_char": 144106, "end_char": 144121, "source": "ner", "metadata": {"in_sentence": "London County Territorial and Au.xiliary forces Association v. Nichols(4),\n\nIn Hindustan Steel case (supra) it was argued before the Constitution: Bench that since it ."}}, {"text": "Hindustan F 'Steel", "label": "ORG", "start_char": 144360, "end_char": 144378, "source": "ner", "metadata": {"in_sentence": "Hindustan F 'Steel was a Government company and a private limited company."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 144484, "end_char": 144497, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Indfa", "label": "OTHER_PERSON", "start_char": 144631, "end_char": 144636, "source": "ner", "metadata": {"in_sentence": "Its\n\nArticles of Association, as also the Indian Companies Act rendered the ordinary company .law inapplicable in certain respects and conferred unlimited powers of management on the President of Indfa and his nominees."}}, {"text": "Oil and NatluraJ Gas Commission", "label": "ORG", "start_char": 145045, "end_char": 145076, "source": "ner", "metadata": {"in_sentence": "I shaU: now compare these cases with those relating to lbf: Oil and NatluraJ Gas Commission, the Life Insurance Corporation of India and the Industrial Finance Corporation with which these four appeals are concerned."}}, {"text": "Life Insurance Corporation of India", "label": "ORG", "start_char": 145082, "end_char": 145117, "source": "ner", "metadata": {"in_sentence": "I shaU: now compare these cases with those relating to lbf: Oil and NatluraJ Gas Commission, the Life Insurance Corporation of India and the Industrial Finance Corporation with which these four appeals are concerned."}}, {"text": "(1964] 4 S.C.R. 99", "label": "CASE_CITATION", "start_char": 145263, "end_char": 145281, "source": "regex", "metadata": {}}, {"text": "section 32", "label": "PROVISION", "start_char": 147040, "end_char": 147050, "source": "regex", "metadata": {"statute": null}}, {"text": "Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 147057, "end_char": 147143, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.49", "label": "PROVISION", "start_char": 147152, "end_char": 147156, "source": "regex", "metadata": {"linked_statute_text": "The Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956", "statute": "The Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956"}}, {"text": "section 11", "label": "PROVISION", "start_char": 147861, "end_char": 147871, "source": "regex", "metadata": {"linked_statute_text": "The Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956", "statute": "The Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956"}}, {"text": "section 22", "label": "PROVISION", "start_char": 147976, "end_char": 147986, "source": "regex", "metadata": {"linked_statute_text": "The Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956", "statute": "The Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956"}}, {"text": "Corporation Act, 1948", "label": "STATUTE", "start_char": 148253, "end_char": 148274, "source": "regex", "metadata": {}}, {"text": "Section 43", "label": "PROVISION", "start_char": 148553, "end_char": 148563, "source": "regex", "metadata": {"linked_statute_text": "Corporation Act, 1948", "statute": "Corporation Act, 1948"}}, {"text": "section 3", "label": "PROVISION", "start_char": 150571, "end_char": 150580, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 150588, "end_char": 150613, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 20", "label": "PROVISION", "start_char": 150760, "end_char": 150770, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 150778, "end_char": 150797, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 20 and 21", "label": "PROVISION", "start_char": 151368, "end_char": 151381, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 151389, "end_char": 151408, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 151464, "end_char": 151483, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 152611, "end_char": 152630, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "have to refer only to the General Clauses Act", "label": "STATUTE", "start_char": 152806, "end_char": 152851, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Air Corporations Act, 1953", "label": "STATUTE", "start_char": 153274, "end_char": 153300, "source": "regex", "metadata": {}}, {"text": "Indian Airlines", "label": "ORG", "start_char": 153318, "end_char": 153333, "source": "ner", "metadata": {"in_sentence": "The Air Corporations Act, 1953 which deals with Indian Airlines and Air India International confers power on the Central Governnient to make rules under section 44 with regard to terms and conditions of service of the General Managers and such categories of officers as may be specified from time to time under sub-section (1) of section 8."}}, {"text": "Air India International", "label": "ORG", "start_char": 153338, "end_char": 153361, "source": "ner", "metadata": {"in_sentence": "The Air Corporations Act, 1953 which deals with Indian Airlines and Air India International confers power on the Central Governnient to make rules under section 44 with regard to terms and conditions of service of the General Managers and such categories of officers as may be specified from time to time under sub-section (1) of section 8."}}, {"text": "section 44", "label": "PROVISION", "start_char": 153423, "end_char": 153433, "source": "regex", "metadata": {"linked_statute_text": "The Air Corporations Act, 1953", "statute": "The Air Corporations Act, 1953"}}, {"text": "section 8", "label": "PROVISION", "start_char": 153600, "end_char": 153609, "source": "regex", "metadata": {"linked_statute_text": "The Air Corporations Act, 1953", "statute": "The Air Corporations Act, 1953"}}, {"text": "section 8", "label": "PROVISION", "start_char": 153637, "end_char": 153646, "source": "regex", "metadata": {"linked_statute_text": "The Air Corporations Act, 1953", "statute": "The Air Corporations Act, 1953"}}, {"text": "section 45", "label": "PROVISION", "start_char": 153894, "end_char": 153904, "source": "regex", "metadata": {"linked_statute_text": "The Air Corporations Act, 1953", "statute": "The Air Corporations Act, 1953"}}, {"text": "section 44", "label": "PROVISION", "start_char": 154156, "end_char": 154166, "source": "regex", "metadata": {"linked_statute_text": "The Air Corporations Act, 1953", "statute": "The Air Corporations Act, 1953"}}, {"text": "All-India Institute of Medical Sciences Act, 1956", "label": "STATUTE", "start_char": 154179, "end_char": 154228, "source": "regex", "metadata": {}}, {"text": "section 29", "label": "PROVISION", "start_char": 154592, "end_char": 154602, "source": "regex", "metadata": {"linked_statute_text": "Under the All-India Institute of Medical Sciences Act, 1956", "statute": "Under the All-India Institute of Medical Sciences Act, 1956"}}, {"text": "Silk Board Act, 1948", "label": "STATUTE", "start_char": 155026, "end_char": 155046, "source": "regex", "metadata": {}}, {"text": "Chartered Accountants Act, 1949", "label": "STATUTE", "start_char": 155356, "end_char": 155387, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Coconut Committee Act, 1944", "label": "STATUTE", "start_char": 155753, "end_char": 155787, "source": "regex", "metadata": {}}, {"text": "Coir Industry Act, 1953", "label": "STATUTE", "start_char": 156247, "end_char": 156270, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central Govcrnme11", "label": "PETITIONER", "start_char": 156275, "end_char": 156293, "source": "ner", "metadata": {"in_sentence": "Under the Coir Industry Act, 1953 the Central Govcrnme11t has power .to make rules and the Coffee Board has no power to make any n:gulations.", "canonical_name": "Central Govcrnme11"}}, {"text": "Coir Industry Act, 1953", "label": "STATUTE", "start_char": 156390, "end_char": 156413, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central Government", "label": "PETITIONER", "start_char": 156419, "end_char": 156437, "source": "ner", "metadata": {"in_sentence": "the Central Government ha~ the power to make regulations and the Board to make bye-laws irega.rding the appointment, promotion and dismissal of its olficers and other\n\n~'mployecs other than the Secretary and the creation and abolition of their posts, as well as the conditions of service of its officers and other employees other than the St.cretary including their pay, leave, lea\\\\!", "canonical_name": "Central Govcrnme11"}}, {"text": "Cost and Works Accountants Act, 1959", "label": "STATUTE", "start_char": 156968, "end_char": 157004, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Linder the Damodar Valley Corporation Act, 1948", "label": "STATUTE", "start_char": 157106, "end_char": 157153, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Deposit Insurance Corporation Act, 1961", "label": "STATUTE", "start_char": 157723, "end_char": 157762, "source": "regex", "metadata": {}}, {"text": "4lagiriswami", "label": "WITNESS", "start_char": 157889, "end_char": 157901, "source": "ner", "metadata": {"in_sentence": "BHA.GATRA.M (4lagiriswami, !.)"}}, {"text": "State Insurance Act, 1948", "label": "STATUTE", "start_char": 158059, "end_char": 158084, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S 1", "label": "PROVISION", "start_char": 159040, "end_char": 159043, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act, 1948", "statute": "State Insurance Act, 1948"}}, {"text": "section 3", "label": "PROVISION", "start_char": 159048, "end_char": 159057, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act, 1948", "statute": "State Insurance Act, 1948"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 159065, "end_char": 159084, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Faridabad Development Corporation Act, 1956", "label": "STATUTE", "start_char": 159170, "end_char": 159213, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Incjian Medicine Central Council Act, 1970", "label": "STATUTE", "start_char": 159343, "end_char": 159385, "source": "regex", "metadata": {}}, {"text": "Central Council of Indian Medicine", "label": "ORG", "start_char": 159485, "end_char": 159519, "source": "ner", "metadata": {"in_sentence": "The Incjian Medicine Central Council Act, 1970 confers the power tn make rules on the Central Government and the power to make regulations on the Central Council of Indian Medicine including .the power to make regulations regarding the tenure of office, and tb: powers and duties of the Registrar and other officers and servants of the Council and th1.~ appointment, powers, duties and procedure of inspectors and visitors."}}, {"text": "Industrial Development Bank of India Act, 1964", "label": "STATUTE", "start_char": 159768, "end_char": 159814, "source": "regex", "metadata": {}}, {"text": "International Airports Authority Act, 1971", "label": "STATUTE", "start_char": 159937, "end_char": 159979, "source": "regex", "metadata": {}}, {"text": "Khadi and Village Industries Commission Act, 1956", "label": "STATUTE", "start_char": 160208, "end_char": 160257, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Trusts Act, 1963", "label": "STATUTE", "start_char": 160880, "end_char": 160896, "source": "regex", "metadata": {}}, {"text": "Marine Products Export Development Authority Act, 1972", "label": "STATUTE", "start_char": 161422, "end_char": 161476, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Medical Council Act, 1956", "label": "STATUTE", "start_char": 161601, "end_char": 161633, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Monopolies and Restrictive Trade Practices Act, 1969", "label": "STATUTE", "start_char": 161941, "end_char": 161993, "source": "regex", "metadata": {}}, {"text": "National Co-operative Development Corporation Act, 1962", "label": "STATUTE", "start_char": 162154, "end_char": 162209, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Natural Gas Commission Act", "label": "STATUTE", "start_char": 162901, "end_char": 162927, "source": "regex", "metadata": {}}, {"text": "section 96", "label": "PROVISION", "start_char": 166737, "end_char": 166747, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1919", "label": "STATUTE", "start_char": 166757, "end_char": 166786, "source": "regex", "metadata": {}}, {"text": "section 240", "label": "PROVISION", "start_char": 166792, "end_char": 166803, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1919", "statute": "the Government of India Act, 1919"}}, {"text": "Act, 1935", "label": "STATUTE", "start_char": 166848, "end_char": 166857, "source": "regex", "metadata": {}}, {"text": "Venkat Rao", "label": "OTHER_PERSON", "start_char": 166864, "end_char": 166874, "source": "ner", "metadata": {"in_sentence": "See Venkat Rao's case, A.l.", "canonical_name": "Venkata Rao"}}, {"text": "Rangachari", "label": "OTHER_PERSON", "start_char": 166908, "end_char": 166918, "source": "ner", "metadata": {"in_sentence": "R. 1937 P.C. 31, and Rangachari's case,."}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 167842, "end_char": 167850, "source": "regex", "metadata": {"linked_statute_text": "the Government of Incija\n\nAct, 1935", "statute": "the Government of Incija\n\nAct, 1935"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 168664, "end_char": 168677, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 168944, "end_char": 168957, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Both stanct on the same footing as both derive their authority one from the Companies Act", "label": "STATUTE", "start_char": 169056, "end_char": 169145, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Life Insurance Corporation from the Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 169232, "end_char": 169304, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Jthc Life Insurance Corporation", "label": "ORG", "start_char": 169339, "end_char": 169370, "source": "ner", "metadata": {"in_sentence": "The fact that a Corporation like Jthc Life Insurance Corporation is created by the statute itself and a company comes into existence jn accordance with the provisions of\n\nlt1e Companies Act does not make any difference to this situation."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 169482, "end_char": 169495, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 12", "label": "PROVISION", "start_char": 170545, "end_char": 170555, "source": "regex", "metadata": {"statute": null}}, {"text": "SUKHDEV I'. BH~ATRAM (Alagiriswami", "label": "JUDGE", "start_char": 170821, "end_char": 170855, "source": "ner", "metadata": {"in_sentence": "See in this\n\nr• .I\n\nSUKHDEV I'."}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 170911, "end_char": 170930, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Stahl", "label": "OTHER_PERSON", "start_char": 171620, "end_char": 171625, "source": "ner", "metadata": {"in_sentence": "be whole purpose of the provisions of Part III of the Constitution is tu confi:r fundamental rights on the citizen as againsttbe power of the Stahl or those exercising the power of the State."}}, {"text": "Willmer", "label": "JUDGE", "start_char": 172288, "end_char": 172295, "source": "ner", "metadata": {"in_sentence": "Willmer, L.J .. quoted with approval the remarks of Wilbr.rforce, J., against whose judgment the Court of Appeal was being heard, to the effect :\n\n\"So I come to the conclusion that however widely one may be inclined to extend the conception of an act or function of government the Crown has not taken the path of cngagaing itself in a broadcasting service or of entrusting it tll any agent."}}, {"text": "Wilbr.rforce", "label": "JUDGE", "start_char": 172340, "end_char": 172352, "source": "ner", "metadata": {"in_sentence": "Willmer, L.J .. quoted with approval the remarks of Wilbr.rforce, J., against whose judgment the Court of Appeal was being heard, to the effect :\n\n\"So I come to the conclusion that however widely one may be inclined to extend the conception of an act or function of government the Crown has not taken the path of cngagaing itself in a broadcasting service or of entrusting it tll any agent."}}, {"text": "United States of America", "label": "GPE", "start_char": 172976, "end_char": 173000, "source": "ner", "metadata": {"in_sentence": "Even in the United States of America this distinction is clearly kt!pt mind."}}, {"text": "Ohio", "label": "GPE", "start_char": 173293, "end_char": 173297, "source": "ner", "metadata": {"in_sentence": "1 '\"That there is a (', onstitutional line between the State as government and the State as trader, was still more recently n1ade the basis of a decision sustaining a liquor tax against Ohio. \""}}, {"text": "Anderson", "label": "OTHER_PERSON", "start_char": 174609, "end_char": 174617, "source": "ner", "metadata": {"in_sentence": "Anderson\n\nv. Dun11."}}, {"text": "Article 298", "label": "PROVISION", "start_char": 175413, "end_char": 175424, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 298", "label": "PROVISION", "start_char": 175655, "end_char": 175666, "source": "regex", "metadata": {"statute": null}}, {"text": "Dutt", "label": "OTHER_PERSON", "start_char": 175857, "end_char": 175861, "source": "ner", "metadata": {"in_sentence": "95) Basu, l dealing with similar contention advanced before him, observed as follows :\n\n\"(iii) Mr. Dutt, for the petitioner relied strongly upon the provision in Article 298, as amended by the Constitution (Seventh Amendment) Act, 1956, to argue that when Government .takes up a business, it does so in the exercise of its 'executive power' and, therefore, whatever be the agency through which Government may carry on a business, that is identified with the Government."}}, {"text": "Article 298", "label": "PROVISION", "start_char": 175920, "end_char": 175931, "source": "regex", "metadata": {"statute": null}}, {"text": "BHAGATRAM", "label": "WITNESS", "start_char": 176467, "end_char": 176476, "source": "ner", "metadata": {"in_sentence": "BHAGATRAM (A/agiriswami, ].)"}}, {"text": "1955 2 SCR 225", "label": "CASE_CITATION", "start_char": 176717, "end_char": 176731, "source": "regex", "metadata": {}}, {"text": "AIR 1955 SC 549", "label": "CASE_CITATION", "start_char": 176734, "end_char": 176749, "source": "regex", "metadata": {}}, {"text": "Ram J awaya", "label": "OTHER_PERSON", "start_char": 176823, "end_char": 176834, "source": "ner", "metadata": {"in_sentence": "This view was overruled by the Supreme Court in the case t>f Rwn Jawaya v. Srate of Punjuh ( 1955 2 SCR 225 : AIR 1955 SC 549) and the Amendment of 1956 simply codifies the effect of the decision in Ram J awaya's case ( 1955 2 SCR 225 : AIR 1955 SC 549) namely, that legislation is not required to empower a Government to carry on a business, it can do so in the exercise of its executive power."}}, {"text": "1955 2 SCR 225", "label": "CASE_CITATION", "start_char": 176844, "end_char": 176858, "source": "regex", "metadata": {}}, {"text": "AIR 1955 SC 549", "label": "CASE_CITATION", "start_char": 176861, "end_char": 176876, "source": "regex", "metadata": {}}, {"text": "Article 19(6)", "label": "PROVISION", "start_char": 177113, "end_char": 177126, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 289(3)", "label": "PROVISION", "start_char": 177460, "end_char": 177474, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 285", "label": "PROVISION", "start_char": 177656, "end_char": 177667, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 178048, "end_char": 178059, "source": "regex", "metadata": {"statute": null}}, {"text": "AIR 1958 SC 36", "label": "CASE_CITATION", "start_char": 178327, "end_char": 178341, "source": "regex", "metadata": {}}, {"text": "AIR 1964 SC 600", "label": "CASE_CITATION", "start_char": 178371, "end_char": 178386, "source": "regex", "metadata": {}}, {"text": "AIR 1966 SC\n\n1364", "label": "CASE_CITATION", "start_char": 178678, "end_char": 178695, "source": "regex", "metadata": {}}, {"text": "Article 297", "label": "PROVISION", "start_char": 178811, "end_char": 178822, "source": "regex", "metadata": {"statute": null}}, {"text": "Oil & Natural Gas Commission", "label": "ORG", "start_char": 178862, "end_char": 178890, "source": "ner", "metadata": {"in_sentence": "The reference to Article 297 of the Constitution in relation to the Oil & Natural Gas Commission's case is not apt either."}}, {"text": "British Transport Commission", "label": "ORG", "start_char": 179430, "end_char": 179458, "source": "ner", "metadata": {"in_sentence": "The decision in Tamlin v. Hannaford (1950 1 KB 18) is very much in point in deciding the questions that arise in the present case ..\n\nThat case was concerned with the question whether the British Transport Commission was a servant or an agent of the Crown, It wa~ brought into existence by a special statute which had many of the qualities which belonged to corporations of other kinds."}}, {"text": "81ritish Broadcasting Corporation", "label": "ORG", "start_char": 182128, "end_char": 182161, "source": "ner", "metadata": {"in_sentence": "The case for considering any one of the three corporation..<i under consideration as a public author.it}' is much weaker than that either 1of the 81ritish Broadcasting Corporation or the British Transport Commisnon."}}, {"text": "British Transport Commisnon", "label": "ORG", "start_char": 182169, "end_char": 182196, "source": "ner", "metadata": {"in_sentence": "The case for considering any one of the three corporation..<i under consideration as a public author.it}' is much weaker than that either 1of the 81ritish Broadcasting Corporation or the British Transport Commisnon."}}, {"text": "1967\n\n3 SCR 377", "label": "CASE_CITATION", "start_char": 183406, "end_char": 183421, "source": "regex", "metadata": {}}, {"text": "Shah", "label": "JUDGE", "start_char": 185098, "end_char": 185102, "source": "ner", "metadata": {"in_sentence": "I 964 ( 4) SCR 99] r u'•tice Shah pointed out that :\n\n\"The question whether a corporation is an agent or servant ol: the State must be decided on the facts of each case.", "canonical_name": "Shah"}}, {"text": "section 11", "label": "PROVISION", "start_char": 185890, "end_char": 185900, "source": "regex", "metadata": {"statute": null}}, {"text": "Disputes Act, 1947", "label": "STATUTE", "start_char": 186327, "end_char": 186345, "source": "regex", "metadata": {}}, {"text": "State Road Transport Corporation", "label": "ORG", "start_char": 186889, "end_char": 186921, "source": "ner", "metadata": {"in_sentence": "1964 (7) SCR 17] a Constitution B£:nch of this Court held that State Road Transport Corporation is not the State."}}, {"text": "Governments of th<! States", "label": "PETITIONER", "start_char": 188312, "end_char": 188338, "source": "ner", "metadata": {"in_sentence": "In Kasturilal v. Slate (1966 (1) SCR 375) a Constitution Bench .:if this Court after an exhaustive reference to all the earlier decisions pointed out :\n\n\"It is not difficult to realhe the significance and impor lance of making such a dislinction particularly at the present time when, in the pursuit of their welfare ideal, the Governments of th<!"}}, {"text": "Article 12", "label": "PROVISION", "start_char": 189165, "end_char": 189175, "source": "regex", "metadata": {"statute": null}}, {"text": "Bitrmah Shell", "label": "ORG", "start_char": 190010, "end_char": 190023, "source": "ner", "metadata": {"in_sentence": "The work done by the Oil & Natural Gas Commission always used to be done by the various oil companies like Bitrmah Shell, Standard .Vacuum etc."}}, {"text": "Standard .Vacuum", "label": "ORG", "start_char": 190025, "end_char": 190041, "source": "ner", "metadata": {"in_sentence": "The work done by the Oil & Natural Gas Commission always used to be done by the various oil companies like Bitrmah Shell, Standard .Vacuum etc."}}, {"text": "Life' Insurance Corporation", "label": "ORG", "start_char": 190068, "end_char": 190095, "source": "ner", "metadata": {"in_sentence": "The work done by the Life' Insurance Corporation was done by various insurance compa!ilies and the Industrial Finance Corporation is merely carrying out functions which any bank can carry on."}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 190931, "end_char": 190938, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 193134, "end_char": 193141, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 193708, "end_char": 193715, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 193936, "end_char": 193943, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 194092, "end_char": 194099, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Employment (Standing Orders) Act", "label": "STATUTE", "start_char": 194888, "end_char": 194931, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Tlic Jurisdiction granted to the Tribunal by the Industrial Disputes Act", "label": "STATUTE", "start_char": 195228, "end_char": 195300, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Tribunal under the Industrial Disputes Act", "label": "STATUTE", "start_char": 196065, "end_char": 196107, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 196458, "end_char": 196466, "source": "regex", "metadata": {"linked_statute_text": "Tribunal under the Industrial Disputes Act", "statute": "Tribunal under the Industrial Disputes Act"}}, {"text": "Tewari'~", "label": "OTHER_PERSON", "start_char": 197562, "end_char": 197570, "source": "ner", "metadata": {"in_sentence": "This Court referred to its earlier decisions in Tewari'~ case (1964(3) SCR 55) and Rajasthan State Electricity Board case (supra) and distinguished the case in Life Insurance Corporation of India v. Mukherjee (supra).", "canonical_name": "Tewari'~"}}, {"text": "Rajasthan State Electricity Board", "label": "ORG", "start_char": 197597, "end_char": 197630, "source": "ner", "metadata": {"in_sentence": "This Court referred to its earlier decisions in Tewari'~ case (1964(3) SCR 55) and Rajasthan State Electricity Board case (supra) and distinguished the case in Life Insurance Corporation of India v. Mukherjee (supra)."}}, {"text": "Naraindas Barot", "label": "OTHER_PERSON", "start_char": 197750, "end_char": 197765, "source": "ner", "metadata": {"in_sentence": "It also explained Naraindas Barot's ca~ (1966 (3) SCR 40).", "canonical_name": "Naraindas Barofs"}}, {"text": "Nttraindas Barot", "label": "OTHER_PERSON", "start_char": 199044, "end_char": 199060, "source": "ner", "metadata": {"in_sentence": "(1971 (2) SCR 192 ·: 1971 (Supp) SCR 510) are in direct conflict with former decision in 'Nttraindas Barot's case."}}, {"text": "Road Transport Corporation", "label": "ORG", "start_char": 199094, "end_char": 199120, "source": "ner", "metadata": {"in_sentence": "The question whether the Road Transport Corporation was a State within the meaning of that term 11,1der Art."}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 199173, "end_char": 199180, "source": "regex", "metadata": {"statute": null}}, {"text": "Road Transport CorporatiO'a", "label": "ORG", "start_char": 199424, "end_char": 199451, "source": "ner", "metadata": {"in_sentence": "That case is not an authority for the proposition that the Road Transport CorporatiO'a was a, State or that its regulations had the effect of law."}}, {"text": "U. P. Warehousing Corporation", "label": "ORG", "start_char": 199622, "end_char": 199651, "source": "ner", "metadata": {"in_sentence": "The discitssion in this case would therefore have to proceed on the lYasis that it lays down no ratio and the U. P. Warehousing Corporation and the Indian Airlines cases are still good law."}}, {"text": "State Raad Transport Corporation", "label": "ORG", "start_char": 201562, "end_char": 201594, "source": "ner", "metadata": {"in_sentence": "The various provisions contained in respect of the various organisations like the State Raad Transport Corporation or the British Transport CommissicY.1 in Tar/in v. Hannaford would show that the power of c:ontrol or even the financial interest of the State in these Corporations was as high as, if not higher than, that of the State in these corporations under consideration."}}, {"text": "British Transport CommissicY.1", "label": "ORG", "start_char": 201602, "end_char": 201632, "source": "ner", "metadata": {"in_sentence": "The various provisions contained in respect of the various organisations like the State Raad Transport Corporation or the British Transport CommissicY.1 in Tar/in v. Hannaford would show that the power of c:ontrol or even the financial interest of the State in these Corporations was as high as, if not higher than, that of the State in these corporations under consideration."}}, {"text": "s. 69", "label": "PROVISION", "start_char": 202087, "end_char": 202092, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 202100, "end_char": 202124, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 25", "label": "PROVISION", "start_char": 202321, "end_char": 202331, "source": "regex", "metadata": {"statute": null}}, {"text": "Natural Gas Commission Act, 1959", "label": "STATUTE", "start_char": 202345, "end_char": 202377, "source": "regex", "metadata": {}}, {"text": "asthan Electricity Board", "label": "ORG", "start_char": 202461, "end_char": 202485, "source": "ner", "metadata": {"in_sentence": "The test laid down for deciding what is a State r.1 the Ra; asthan Electricity Board case, that is of commanding other people to do or not to do a thing on pain of punishment, is not there."}}, {"text": "They were getting on well enough till the Government of India Act, 1935", "label": "STATUTE", "start_char": 203309, "end_char": 203380, "source": "regex", "metadata": {}}, {"text": "Venkata Rao", "label": "OTHER_PERSON", "start_char": 203445, "end_char": 203456, "source": "ner", "metadata": {"in_sentence": "Till then there was no statutory protection given to them [See Venkata Rao's case (supra) and Rangachari's case (suprd)].", "canonical_name": "Venkata Rao"}}, {"text": "British Government", "label": "ORG", "start_char": 203570, "end_char": 203588, "source": "ner", "metadata": {"in_sentence": "It is a well known fact that it was the Jack of confidenee of the British Government in the capacity of the Indians to manage their own affairs that led to section 240 becoming part of the Govemment of India Act, 1935."}}, {"text": "section 240", "label": "PROVISION", "start_char": 203660, "end_char": 203671, "source": "regex", "metadata": {"linked_statute_text": "They were getting on well enough till the Government of India Act, 1935", "statute": "They were getting on well enough till the Government of India Act, 1935"}}, {"text": "Govemment of India Act, 1935", "label": "STATUTE", "start_char": 203693, "end_char": 203721, "source": "regex", "metadata": {}}, {"text": "ATRAM (Alagiriswami", "label": "OTHER_PERSON", "start_char": 203796, "end_char": 203815, "source": "ner", "metadata": {"in_sentence": "ATRAM (Alagiriswami, !.)"}}, {"text": "Article 310", "label": "PROVISION", "start_char": 204082, "end_char": 204093, "source": "regex", "metadata": {"linked_statute_text": "It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935", "statute": "It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 204212, "end_char": 204220, "source": "regex", "metadata": {"linked_statute_text": "It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935", "statute": "It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 204225, "end_char": 204243, "source": "regex", "metadata": {"linked_statute_text": "It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935", "statute": "It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 204900, "end_char": 204918, "source": "regex", "metadata": {"linked_statute_text": "It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935", "statute": "It is to be wondered why the framers of the Constitution should have copied the provisions of the Government ot India Act 1935"}}, {"text": "Articles 309, 310 and 311", "label": "PROVISION", "start_char": 205418, "end_char": 205443, "source": "regex", "metadata": {"statute": null}}, {"text": "George Meany", "label": "WITNESS", "start_char": 206448, "end_char": 206460, "source": "ner", "metadata": {"in_sentence": "George Meany of the A.F.L. and C.1.0."}}, {"text": "Life lnsurnnce Corporation", "label": "ORG", "start_char": 208490, "end_char": 208516, "source": "ner", "metadata": {"in_sentence": "I would hold that Oil & Natural Gas Commission, Life lnsurnnce Corporation an, d the Industrial Finance Corporation are not authorities within the meaning of Article 12 of the Constitution and regulations framed by them have no force of law."}}, {"text": "Article 12", "label": "PROVISION", "start_char": 208600, "end_char": 208610, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 209392, "end_char": 209399, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagatram Sardarsingh Raglrnvansi", "label": "OTHER_PERSON", "start_char": 209522, "end_char": 209555, "source": "ner", "metadata": {"in_sentence": "2137 of 1972, the declaration granted by the High Court that the order removing Bhagatram Sardarsingh Raglrnvansi from service is null and void and that he continues in service is upheld.", "canonical_name": "Bhagatram Sardarsingh Raglrnvansi"}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 209900, "end_char": 209907, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 210369, "end_char": 210376, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 210556, "end_char": 210563, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_686_695_EN", "year": 1975, "text": "LAXMI CHAND A\n\nINDORE IMPROVEMENT TRUST, LNDORE AND ORS.\n\nFebruary 24, 1975\n\n[K. K. MATHEW, V. K. KRISHNA IYER AND P. K. GOSWAMI, JJ.]\n\nMadhya Pradesh Town lmprovemellt Trust Act 1960-W/Sether a ltousing B scheme can contain features of industrial and other 1zon-housi11g scheme-Malafide acquisition i11 the absence of any prol'ision whether tribunal can award fot, rest from the date of taking possession of t/1e property till the date of determination of 1compe11satio11.\n\nThe petitioner owned certain land. There was an earlier attempt to acquire the land of the petitioner by sanctioning a housing accommodation scheme by the Indore Improvfatent Trust under the Madhya Pradesh Town Improvement Trust C Act, 1960. The said scheme was, however, cancelled. The petitioner wanted to develop his land for industrial purposes and, therefore, obtained No Obji:ction Certificates from various Government Departments as well as from the Trust.\n\nThe petitioner got his land converted from agricultural purpose to industrial purpose subject to the limitation that the construction work had to be approv1:d by the Trust. The Trust, however, refused the No Obj'ection Certificate for development of the land on individual basis on the 2round that a scheme was being ' approved for the land in question and other neighbouring lands. The Trust framed a scheme which included the land of the Detitioner also. The Trust served a notice D to acquire the petitioner's land for the purpose of the scheme. The petitioner f submitted his objection stating that the land was being developed into industrial i area and several small scale industries were functioning there and, as such, deve- ~, lopment was alPady in progress. Thereafter, the Trust published a notice acquiring the said land.\n\nBefore the Trust could take possession of the petitioner's land the !letitioner filed a Writ Petition in this Court.\n\nIt was contended on behalf af the petitioners :\n\n(1) The Housing Accommodation Scheme is invalid because it does not specify the class of inhabitants for whom the same has been made. -\n\n(2) The scheme being a Housing Accommodation Scheme it is for residential oc:upation only and it is not competent to include plans for industrial purposes.\n\n( 3) Section 31 of the Act does not empower the Trust to frame a F scheme for industrial purposes at all. ( 4) There is no application of the mind in terms of section 45 in :making the Scheme.\n\n(5) Thi; acquisition of the land for the purpose of the Scheme is malafide. ( 6) Since the Act rr.akes no provision for payment of interest from the date of delivery of possession of the land to the Trust till the G determination of compensation by the Tribunal, acquisition of the land is violative of article 31 (2) of the Constitution.\n\nPetitioner has not challenged vires of any provisions of the Act.\n\nHELD : ( 1) Section 31 of the Act permits combining two or more schemes or supplementing some special features of a particular scheme in another scheme.\n\nThere is no bar in framing a housing accommodation cheme with somi: of the features of industrial scheme.\n\nA housing accommodation scheme need not H necessarily be residential scheme only. It can admit of providing housing accommodation for any other purpose or object. There is nothing in section 31 or anv other provision o~ the Act disabling the Trust from framing schf:me for industrial purpose.\n\n[690£-G]\n\nL,\\XMI CHAND v. INDORE IMPROVEMENT TRUST (Goswami, J.) 687\n\n(2) Section 45 requires that while framini: the scheme the inherent utility, efficiency and adequacy of the scheme and the objections and representations of the perwns have to be taken into consideration. The scheme in question was open for inspection. There was no ambiguity or vagueness of the scheme or its purpose.\n\nWhere factual satisfaction is evident formal recitals being omitted may not matter.\n\nAt any rate, section 52 (2) puts a final seal of imprimatur on the scheme after publication of the sanction of the Government. [69 lC-D]\n\n(3) Acquisition is not malafide .. No oblique motive can be inputed to the Trust in ma:ldng the impugned scheme. There is no allegation of malafide against the S:\";~ G0vernment whose sanction was a pre-requisite for the acquisition.\n\nThe order of acquisition cannot, therefore. be characterised as ma/afide.\n\n[6910-H]\n\n(4) It is true that there is no provision for awarding interest unlike under the Land Acquisition .Act. It is submitted by the respondents that there is no bar under the Act against awarding interest by the Tribunal. It is not possible to hold that the compensation Tribunal which is at par with an arbitrator will be entitled to award interest without any express provision in the Act.\n\nThe petitioner is. therefore. ri2ht in their contention that this Act does not provide for awarding interest from the date of taking possession of the property to the date of determination of compensation.\n\nHowever, it is not possible to quash the acquisition in the absence of a challen2e to the iires of the provisions of the Act. The law being valid the attack will revaperate upon the quantum of compensation pure and simple. It is sufficient to point out that the quantum of compensation cannot be challenged undflr Article 31 (2) of the Constitution.\n\n[ 69~D; 694C-G]\n\nORIGINAL APPELLATE JURISDICTION: Writ Petitions Nos. 517 of 1972 & 240 of 1973.\n\nPetition under Article 32 of the Constitution of India.\n\nD. V. Patel (In WP. No. 240/73), S. P. Phadnis and S. K.\n\nGambltir, for the Petitioners (In both the Petitions).\n\nI. N. Shroff, for the Respondent No. 1 (In WP. No. 517/72).\n\nS. M. JaJ.n, for the Respondents Nos. 1-2 (In WP. No. 240/\n\n~-3). .\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J. This judgment will govern Writ Petitions Nos. 517 of 1972 and 240 of 1973.\n\nThe applications are directed against what is described as a Housing Accommodation Scheme sanctioned by the Indore Improvement Trust (briefly the Trust) under tbe Madhya Pradesh Town Improvement Trust Al:t 1960 (briefly the Act). Brief facts of Writ Petition No. 517 of 1972 may alone be sufficient. There was an\n\nerlicr attempt to acquire the land of the petitioner by sanctioning\n\na scheme in July 1961 but the same was cancelled some time in September 1962.\n\nThe petitioner personally wanted to develop his land for industrial purposes and with that end in view obtained No Objeclion Certificates from various Government Departments as well\n\nas from the Trust.\n\nThe petitioner also succeeded in converting his patta from agricultural purpose to industrial purpose, subject. inter ali:1, to the lirnita lion that the construction work on the land shall be carried out in accordance with the plans sanctioned by fne . same\n\nImprovement Trust (Annexure 'G'). Later, however, the petitioner found from a ktter of the Trust of October 26~ 1964,. that a scheme was being approved for his land a~ other ne1ghbun?g lands. and, therefore the Trust was unable to issue the No Ob1ection Certificate for deveiopment of his land on individual basis. The Trus~ framed a Scheme No, 62 under section 46(1_) of the Act and published a notice to that effect in the Gazette and in local newspapers in January\n\n1965. The Scheme includes the land of the petitioner. The repre~ sentations which the petitioner made against the Scheme were of no avail.\n\nThe Trnst served a notice dated February 10, 1965, upon the petitio11er under section 48 (1) of the Act proposing to acquire his land for the purpose of the Scheme.\n\nThe petitioner submitted his objections on April 15, 1965, stating, inter alia, that the land was being developed into industrial area and several small scale industries were functioning there an!d as such development was already i~ progr-ess.\n\nIt was also stated that the land having been put to the use of industrial purposes could not be re-converted foi: the purposes of housing accommddation'. It was further stated that\n\nthe land was mortgaged to the State Bank for about Rs. 2 lakhs and the compensation that would be required to be paid by the Trust would be necessarily higher than in the case of other suitable vacant lands. The petitioner was given a hearing but ultimately the representations were rejected. Tue Trust duly applied to the State Government for sanction of the Scheme which was accorded on April 19, 1968, under section 51 of the Act. The Trust published a notice dated July 12, 1968, under section 68(1) of the Act focla ring its intention to acquire the land. The petitioner filed his ohjections under section 68(2) against the proposed acquisition of the land but these were rejected and the Trust obt~ sanction .of the\n\nStat; e Government (respondent No. 2) to '-<acquire the land under section 70 of the Act,. and the Notifiction was duly published on September 27, 1968.\n\nTherefore the Trust published a Notification in the Government Gazette dated September 8, 1972, acquiring the said land and under section 71 (2) of the Act the land vested absolutely with the Trust free from encumbrances from the date of the\n\nublication. Before the Trust could take possession of the petitioner's land, he filed the writ application under article 32 of the Constitution and obtained Rule Nisi and interim stay of disposse!.sion was granted pending disposal of the matter.\n\nTh~ , following are the common submissions made on behalf of the petitioners :-\n\n1. The Housing Accommodation Scheme ls invalid because It. does not specify tile class of inhabitants for whom the same has been made.\n\n2. Th~ , Scheme_ being a Housing Accommodation 11 Scheme, 1r: 1s. for residential oc.cupation only , and it is not competent to include plans for industrial purposes.\n\nLAXMI CHAND v. INDORE IMPROVEMENT TRUST (Goswami, J.) 68 9\n\n3. Section 3 J of the Act does not empower the Trust to frame a s::heme for industrial purposes at all. l\n\n4. There is no application of the mind in terms of section 45 in making the Scheme.\n\n5. The acquisition of the land for the purpose of the Scheme is ma/a fide.\n\n6. Since the Act makes no provision for payment of interest from the date of delivery of possession of the land to the Trust to the determination of compensation by the Tribunal acquisition of the land is violative of Article 31(2) of the Constitution.\n\nAt the very outset it should be pointed out that the Petitioners have not challenged the vires of any provisions of the Act.\n\nIn order to appreciate the first three submissions, which may be taken up together, we may note a few relevant provisions of the\n\nAct.\n\nChapter IV of the Act describes the contents of improvement schemes.\n\nSection 30 provides that \"an \"improvement scheme may provide for all or any of the following matters, namely- * * * •\n\n(i) the provision for accommodation for any class of\n\nE inhabitants : \"\n\nSection 31 may be set out in full :\n\n31. \"Types of improvement schemes.-\n\nAn improvement scheme shall be of one of.the following types or _may combine any two or more of such types or of special features thereof, that is to say- ( a) a general improvement scheme;\n\n(b) a re-building scheme;\n\n(c) a re-housing scheme; t d) a street scheme; ( e) a deferred street scheme;\n\n(f) a development scheme;\n\n(g) a housing accommodation scheme;\n\n(h) a town expansion scheme;\n\n(i) a drainage or drainage including scheme; and\n\n(j) a playground, stadium and scheme.\"\n\nsewage disposal .\n\n- recreation ground\n\nSection 38. 'Housing accommodation scheme .. -\n\nWhenever the Trust is of opinion that it is expedient and for the public advantage to provide housing accommodation for any class of the inhabitants within the Trnst area, the Trust may frame a housing accommodation scheme for such purpose.\" Section 39. \"Town expansion scheme.- ( 1) Whenever the Trust is of opinion that it is expedient and for the public advantage to control and provide for the future improvement or expansion of a town to which this Act is applicable, the Trust may frame a town expansion si:heme for such town.\n\n* *\n\n(3) Such scheme shall show the methods in which it is proposed to lay out the area to be developed and the purposes for which the particular areas are to be utilised.\"\n\ny * * * It is submitted on behalf of the petitioners, that the impugned scheme is not a housing accommodation scheme under setion 38 but a scheme purely for industrial purposes. It is pointoo out that ther.:: is no refere11ce in the Scheme to the class of inhabitants within the Tru5t area for whose accommodatiorl the Scheme has been framed under section 38.\n\nSince it is a housing accommodation scheme it cannot include plans for industrial purposes.\n\nThe argument fails to take count of section 31 which pirmits in t.:rms for combining two or more schemes or supplementing some\n\nspeci~1l features of a particular scheme in another scheme. In other words section 31 envisages composite schemes.\n\nSection 39 which provides for a town expansion scheme authorises under sub-section\n\n(3) to.: indicate the method of layout as well as the purposes for which particular areas under the scheme may be utilised. This section goes to show that there is no legal bar in framing a housing accommodation, scheme with some of the features of a town expansion scheme which will even indicate the purposes for which particular areas may be utilised. There is nothing in the Act to ban industrial purposes from consideration under section: 39 (3). The fac:t that a scheme is described merely as a housing accommodation scheme does not prevent the adaptation of the scheme to the incidental require ..\n\nments which may be overlapping in another scheme.\n\nWe are also no: satisfi~ that housing aocommodationr scheme must lll!cessarily be a residential scheme only and that it cannot admit of providing housing accommodation for any other purpose or object.\n\nThe 1vfadhya Pradesh High Court took the same view in Beni Prasad Tandon and Others v. Jabalpur Improvement Trust, Jabalpur(').\n\nAgain it is difficult to appreciate how section 31 prevents the Trust from framing an industrial scheme.\n\nWe do not find anything in _:cction 31 or in any of the provisions of the Act disabling the\n\n(l) [1970] M. P. L. J. 292.\n\nLAXM! CHAND v. INDORE IMPROVEMENT TRUST (Goswami, J. 691\n\nTti.bt from framing a scheme for industrial purposes.\n\nTo ment.ion only section 39. i\\ is clear that under that secuon a town expansion scheme may be framed even without the limits of the to:vn a!ld tt.at would indicate that a town expansion scheme may env1sae mdustrial expansion to meet the growin~ needs of th~ commumty.. '!'f e, thcrefol'.:, do not see any substance m the aforesaid three subnuss1ons. on behalf of the petitioners.\n\nWith regard to the fourth submission of the petitioners, it is difficult to accept the sme. Sectio°: 45 requires certin maters specified in (a) to (c) therem to be considered when frmmg an IJ?lJ>rovemet\n\nscheme.\n\nThe specified matters touch on the mherent utility, efficiency and adequacy of the scheme and the objections and represen'.ations of the persons affected will be directed to negative such assumptions.\n\nThe Scheme in question was open to inspection. There was no ambiguity or vagueness about the Scheme or its purposes.\n\nFrom even the nature of the representations and objections it is apparent that the Trust did have all relevant matters in their mind in framing the Scheme.\n\nIndeed without actually taking into consi:- clei\"C!tion the various matters specified in section 45 it may not be po, siblc to frame a scheme and finally to obtain sanction of the\n\nGovmmcnt in the teeth of objections and representations against the same.\n\nWhere factual satisfaction is evident formal recitals being omitted may not matter.\n\nAt any rate sub-section (2) of section 52 puts a final seal of imprimatur on the scheme after _publication of the sanction of the Government.\n\nThe submission is, therefore, devoid of merit.\n\nWith regard to the fifth submission, which is actually urged by the petitioner in writ petition No. 517 of 1972, we are not satisfied that the acquisition of the land for the purpose of the present Scheme is ma/a {; de.\n\nIt is submitted that the Trust by formulating the present Scl; cme had an oblique motive to change the ownership of the land already under a private scheme for development to let it out to tenants who will run the existing enterprises already starwd 011 the land.\n\nWe are not satisfied that any oblique motive -can be attributed to the Trust in making the impugned Scheme. It is clear that the land was originally owned by the petitioner for agri1:ulural\n\npurpJ~(::; and when he obtained a patta converting it to indusrial purpose. t-t was clearly made subject to a condition that construction work\n\nn the land shall be carried out in accordance with the plans sanctloned by the Trust.\n\nThe petitioner had been given reasonable\n\nopportrntty to sub!llit representations and was given a hearing by a Committee constituted under the Act.\n\nThe State Government on the application of the Trust examined the Scheme and sanctioned the acquisition of the land under section 70 when it was satisfied that t~~ acquisition was in public interest.\n\nThere is no particular\n\n~.l!eptton of ml.a fide against the State Government whose sanction\n\nwa~; a J;?Te r_eqms1te for the acuisition. The order of acquisition c,:nnot. the1efore, be characterised as ma/a fide and the submission fails.\n\nWith regard to the sixth and last submission there was al good deal of argument at the bar.\n\nThe respondents urged that this point was not specifically taken ln the petitions.\n\nUnder section 72(1) of\n\nthe Act where any land is acquired by the Trust it shall pay for such acquisition \"compensation the amount of which shall be determined io accordance with the provisions hereinafter contained\". Under\n\nsection 73 a Tribunal is constitutd for the purpose of determining the amount of compensation.\n\nSection 77 provides for matters to be considered for determining compensation, namely, \"firstly, the market value of the land at the date of the publication of fhe notification under sub-section ( 1) of section 68\" and six other fa<tors.\n\nIt is also provided in the same section that the Tribunal shall not take into consideration certain factors mentioned under eight heads. Under sub-sc;; tion (2) of section 77 \"in addition to the market-value of the land as above provided, the Tribunal shall in every case award a sum of fifteen per cntum or such marke!;:.Yalue in consideration of the com pulsury nature of the acquisition\". There being no provision foy payment of interest from the date of compulsory acquisition orthe land upto the date of payment, acquisition, it is submitted, is invalid in law. .\n\nIt is true that there is no provision for awarding interest unlike under th; Land Acquisition Act, 1894 (see sections 28 and 34 of that Act). It is, however, submitted on behalf of the respondents that there is no bar un, der the Act against awarding interest by the Tribunal even though there is no enabling express provision to that effect under the Act. lt is stated that the Tribunal under section 78 exercises pc, 1ers for summoning witnesses and enforcing attendance etc. in the same\n\nmannr as provided in the case of civil courts under the Code of Civil\n\nProcedure. Under section 147 an appeal from the Tribunal lies to the High Court in cases where the value of the claim exceeds Rs. 500/- and in any other case to the District Judge. It is, therefore, submitted that the Tribunal is empowered even as a civil court to award interest under section 34 of the Civil Procedure Code. Section 34 of the Civil\n\nProcedure Code, however, authorises the court to award interest from the date ol the suit to the date of the decree and thereafter to the date of payment. Section 34, therefore, would not come to the aid of the Tribunal to award interest from the date of delivery of possession of the land to the date of determination of compensation.\n\nThe respondents relied upon the decision of this Court _in Sazilui'r Si11gh and Others v. Amrao Singh and Others( 1).\n\nI~ this cas~. t:Hs Court had to deal with section 5 ( e) of the East Pun1ab Acqms1t1011 and Requisition of Immovable Property (Temporary Powers). Act, 1948 (briefly the Punjab Act.) which provided that an Arbitrator :in making his award shall have regard to the provisions of sub-sectiou(l) of section 23 of the Land Acquisition Act 1894 so far as the same can be made applicable. The submission in that case was that since sub-section (1) of section 23 is alone mentioned, sub-section .. (2) of section 23 is impliedly excluded and necessarily also section 28 and ----------\n\n(!) [1961] 3 S. C. R. 676.\n\nB ,\n\n:~11 CHAND v. INDORE IMPROVEMENT TRUST (Goswami, J.) 6 93\n\nsection 34 stand excluded. The argument, therefore, was that ihc Tribunal was not empowered to award interest under the Punjab Act. Repelling the said argument this Court held as follows :-\n\n\"It would be legitimate to hold that by the application of s. 23(1) in terms the provisions of s. 23(2) are by necessary implication excluded. If the Jtegislature has provided that only one part of s. 23 should be applied it would be reasonable to hold that the other part of s. 23 was not intended to be applied; but we do not see how it would be reasonable to hold that by the application of s. 23 (1) the principles underlying the provisions of ss. 28 and 34 are also excluded. Therefore, it is necessary to examine this question on general grounds and principles without assuming that the application of these general considerations is excluded by any of the provisions of the Act\". ·\n\n, This Court finally held as follows :-\n\n\"The power to award interest on equitable grounds or under any other provisions of the law is expressly saved by the proviso to s. 1 (of the Interest Act 1839) ...... we have already seen that the right to receive interest in lieu of possession of immovable property taken away either by private treaty or by compulsory acquisition is generally regarded by juJicial decisions as aQ equitable right; and so, the proviso to s. 1 of the Interest Act saves the said right\".\n\nThe Court in that case, therefore, awarded interest to the claimants.\n\nThe petitioners on the other hand drew our attention to a decision of this court in the Godhra Hectricity Co. Ltd. and another v. The State uf Gujarat and anpther (') where one of us Mathew J., speaking for the Court held as follows :- ·\n\n'There can be no doubt about the correctness of the\n\ngenral rule under which a purchaser who takes possession is charged with interest on his purchase money from that time until it is paid. This rule has been applied to compulsory purposes (see Satinder Singh v. A mrao Singh) (supra).\n\nBut the question is whether the arbitrator has power under the A, ct to award interest on the purchase price.\n\nIn Toronto City Corpn. v.\n\nTomnto Rly. Corpn., [1925] AC 177 at op. 193-194 the Privy Council held that the general rule urer which a purchaser who takes possession is char!!ed with interest on his purchase money from that time until it is paid was well etablished, and had on many occasions been apolied to comoulsory purchases but the duty of the arbitrators in that case was not to determine all the rights of the comnany. but onlv to ascer'ain the actual value of certain prooerty at a certain time and that it was a iruism to sav that ucli nlue coulrl not inclnde interest uoon it 'mr! that th<\" lihiFtv frir interest fay outside of th2 arbitra.- tion for its enforcement\".\n\n(.f) A. r. R. 1975 (January) S. C. 32.\n\nSUPREME COURT REl:'ORTS\n\n[1975J 3 S.C.R.\n\nAlthough in the Godhra Electricity Co's case (supra) the Court\n\nha~; noticed the decision in Sa1u1der Sing/i's case (supra), it may b;\n\nob.; u.:d that the Courts attention in the latter case was not drawn to section 5 (g) of the Punjab Act to the following effr.ct :\n\n'\"Save as provided in this section an, d in any rules thereurq'1er, nothing in any law for the time being in force shall apply to arbitration under this section\".\n\nA.id thL' Court, therefore, in that case rendered the decision \"without assuming that the applicatioq of these general considerations is l)XChided by an:y ot the provisions of the Act\". In view cf the Godhra Electricity Co's case (supra) it is not possible to hold that the Com- :iensation Tribu01al, which is at par with an Arbitrator, will be entitled t:.i award interest without any express provision in the Act. This is particularly so since under the Act the Tribunal is entitled to take into consideration some given factors and to peremptorily ignore certain\n\nother specified factors in determining the compensation. It has a1so been empowered to grant solatium as similarly provided for under the Land Acquisition Act. In the entire scheme of the self\"contained Act, in absence of a provision to authorise the Tribunal to award interest, it is not possible to hold that it can award interest on the amo\\Jmt of compensation determined by the Tribunal subsequent to the acquisition of the land. The petitioners are, therefore, right in their contention that this Act does not provide for awarding interest from the date of taking possession of the property to the date of determination of com- . pnation, which will always be bn a later date under the provisions of the Act (see sections 72 and 7 3) .\n\nThe petitioners, however, have an injirect object. They are not interested in the interest as sn:.:11 but want the land back and will not be satisfied unless the order of acquisition is quashed. Unfortunately,\n\nhowever, it is not possible for this Court to quash the acquisition in these caes in absence of a challenge of the vires of the pro; isions of thL Act. Presumption of constitutionality will forbid casting an evil eye on the Act in absence of a clear challenge. The Act must be assumed to be valid for the purpose of these petitions and we will proceed on th::it basis. Then law being valid the attack will reverberate upon the quantum of compensation, pure and simple. It is sufficient to poi11t out that the quantum of compensation which may be determined\n\naccording to the provisions of the Act for acquisition of the land cannot be challenged under article 31 (2) of the Constitution. In that view of the matter this submission of the learned counsel also fails.\n\nln Writ Petition No. 240: of 1973, Mr. Patel additionally urged that publb; tion of the notice of the Scheme was not made in accordance with section 46 ( 2) of the Act which requires weekly publication in the Gazette for three consecutiv~. weeks. Apart from the fact, in this case. that the petitioner was well aware of the Scheme and submitted objecti<Jns and representations, section 52(2) appears to be conclusive on tlie question. That sub-section provides that the publication o[ a\n\n~10tification by the Stte Government sanctioning the sche1:11e shall be\n\nLAXMI CHA'.'iD v. INDORE IMPROVEMENT TRUST (Goswami, I.) 6 95\n\nconclt1siH: evidence that the scheme has been duly framed and sane\" tioned. In view of this, ticklish skirmishes over publication on technical grounds at a distant date are completely out of place. The submission is devoid of merit.\n\nJn the result both the Wit Petitions fail and are dismissed with no. order us to costs.\n\nWe sbould observe that Mr. Shroff pointed out th<.t in view of the decision of the Supreme Court in Satinder Singh's case (supra) ad another lkcision of the Madhya Pradesh High Court in Lakhania/ and others v. Town Improvement Trust, Jabalpur and others,(') the Tribunal has been always awarding interest in acquisition cases under the Act and he undertakes on behalf of the respondents, irrespective of our decision, to pay interest to the petitioners at 6% per annum from the date of actual deiivery of possession upto the dote of payment of the compensation.\n\nP.H.P.\n\nPetitions dismissed.\n\n\n(!) [1970] M. P. L. J. 316.", "total_entities": 102, "entities": [{"text": "LAXMI CHAND", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "LAXMI CHAND", "offset_not_found": false}}, {"text": "A\n\nINDORE IMPROVEMENT TRUST, LNDORE AND ORS", "label": "RESPONDENT", "start_char": 12, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "INDORE IMPROVEMENT TRUST, INDORE AND ORS", "offset_not_found": false}}, {"text": "February 24, 1975", "label": "DATE", "start_char": 58, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "February 24, 1975\n\n[K. K. MATHEW, V. K. KRISHNA IYER AND P. K. GOSWAMI, JJ.]"}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 78, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "V. K. 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GOSWAMI", "offset_not_found": false}}, {"text": "Madhya Pradesh Town lmprovemellt Trust Act 1960", "label": "STATUTE", "start_char": 136, "end_char": 183, "source": "regex", "metadata": {}}, {"text": "Indore Improvfatent Trust", "label": "ORG", "start_char": 630, "end_char": 655, "source": "ner", "metadata": {"in_sentence": "There was an earlier attempt to acquire the land of the petitioner by sanctioning a housing accommodation scheme by the Indore Improvfatent Trust under the Madhya Pradesh Town Improvement Trust C Act, 1960."}}, {"text": "Section 31", "label": "PROVISION", "start_char": 2241, "end_char": 2251, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45", "label": "PROVISION", "start_char": 2395, "end_char": 2405, "source": "regex", "metadata": {"statute": null}}, {"text": "article 31", "label": "PROVISION", "start_char": 2733, "end_char": 2743, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 31", "label": "PROVISION", "start_char": 2849, "end_char": 2859, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 3281, "end_char": 3291, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45", "label": "PROVISION", "start_char": 3466, "end_char": 3476, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52", "label": "PROVISION", "start_char": 3880, "end_char": 3890, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 31", "label": "PROVISION", "start_char": 5233, "end_char": 5243, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 5383, "end_char": 5393, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 5401, "end_char": 5422, "source": "regex", "metadata": {}}, {"text": "D. V. Patel", "label": "OTHER_PERSON", "start_char": 5425, "end_char": 5436, "source": "ner", "metadata": {"in_sentence": "D. V. Patel (In WP."}}, {"text": "S. P. Phadnis", "label": "OTHER_PERSON", "start_char": 5458, "end_char": 5471, "source": "ner", "metadata": {"in_sentence": "240/73), S. P. Phadnis and S. K.\n\nGambltir, for the Petitioners (In both the Petitions)."}}, {"text": "S. K.\n\nGambltir", "label": "LAWYER", "start_char": 5476, "end_char": 5491, "source": "ner", "metadata": {"in_sentence": "240/73), S. P. Phadnis and S. K.\n\nGambltir, for the Petitioners (In both the Petitions)."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 5539, "end_char": 5551, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for the Respondent No."}}, {"text": "S. M. JaJ.n", "label": "LAWYER", "start_char": 5600, "end_char": 5611, "source": "ner", "metadata": {"in_sentence": "S. M. JaJ.n, for the Respondents Nos."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 5713, "end_char": 5720, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J. This judgment will govern Writ Petitions Nos."}}, {"text": "October 26~ 1964", "label": "DATE", "start_char": 6826, "end_char": 6842, "source": "ner", "metadata": {"in_sentence": "Later, however, the petitioner found from a ktter of the Trust of October 26~ 1964,."}}, {"text": "section 46(1_)", "label": "PROVISION", "start_char": 7080, "end_char": 7094, "source": "regex", "metadata": {"statute": null}}, {"text": "February 10, 1965", "label": "DATE", "start_char": 7367, "end_char": 7384, "source": "ner", "metadata": {"in_sentence": "The Trnst served a notice dated February 10, 1965, upon the petitio11er under section 48 (1) of the Act proposing to acquire his land for the purpose of the Scheme."}}, {"text": "section 48", "label": "PROVISION", "start_char": 7413, "end_char": 7423, "source": "regex", "metadata": {"statute": null}}, {"text": "April 15, 1965", "label": "DATE", "start_char": 7544, "end_char": 7558, "source": "ner", "metadata": {"in_sentence": "The petitioner submitted his objections on April 15, 1965, stating, inter alia, that the land was being developed into industrial area and several small scale industries were functioning there an!d as such development was already i~ progr-ess."}}, {"text": "April 19, 1968", "label": "DATE", "start_char": 8317, "end_char": 8331, "source": "ner", "metadata": {"in_sentence": "Tue Trust duly applied to the State Government for sanction of the Scheme which was accorded on April 19, 1968, under section 51 of the Act."}}, {"text": "section 51", "label": "PROVISION", "start_char": 8339, "end_char": 8349, "source": "regex", "metadata": {"statute": null}}, {"text": "July 12, 1968", "label": "DATE", "start_char": 8397, "end_char": 8410, "source": "ner", "metadata": {"in_sentence": "The Trust published a notice dated July 12, 1968, under section 68(1) of the Act focla ring its intention to acquire the land."}}, {"text": "section 68(1)", "label": "PROVISION", "start_char": 8418, "end_char": 8431, "source": "regex", "metadata": {"statute": null}}, {"text": "section 68(2)", "label": "PROVISION", "start_char": 8531, "end_char": 8544, "source": "regex", "metadata": {"statute": null}}, {"text": "section 70", "label": "PROVISION", "start_char": 8718, "end_char": 8728, "source": "regex", "metadata": {"statute": null}}, {"text": "September 27, 1968", "label": "DATE", "start_char": 8784, "end_char": 8802, "source": "ner", "metadata": {"in_sentence": "and the Notifiction was duly published on September 27, 1968."}}, {"text": "September 8, 1972", "label": "DATE", "start_char": 8882, "end_char": 8899, "source": "ner", "metadata": {"in_sentence": "Therefore the Trust published a Notification in the Government Gazette dated September 8, 1972, acquiring the said land and under section 71 (2) of the Act the land vested absolutely with the Trust free from encumbrances from the date of the\n\nublication."}}, {"text": "section 71", "label": "PROVISION", "start_char": 8935, "end_char": 8945, "source": "regex", "metadata": {"statute": null}}, {"text": "article 32", "label": "PROVISION", "start_char": 9161, "end_char": 9171, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 9743, "end_char": 9752, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45", "label": "PROVISION", "start_char": 9898, "end_char": 9908, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 31(2)", "label": "PROVISION", "start_char": 10226, "end_char": 10239, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Chapter IV of the Act", "label": "STATUTE", "start_char": 10524, "end_char": 10545, "source": "regex", "metadata": {}}, {"text": "Section 30", "label": "PROVISION", "start_char": 10594, "end_char": 10604, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV of the Act", "statute": "Chapter IV of the Act"}}, {"text": "Section 31", "label": "PROVISION", "start_char": 10786, "end_char": 10796, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV of the Act", "statute": "Chapter IV of the Act"}}, {"text": "Section 38", "label": "PROVISION", "start_char": 11381, "end_char": 11391, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV of the Act", "statute": "Chapter IV of the Act"}}, {"text": "Section 39", "label": "PROVISION", "start_char": 11671, "end_char": 11681, "source": "regex", "metadata": {"statute": null}}, {"text": "section 38", "label": "PROVISION", "start_char": 12485, "end_char": 12495, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 12627, "end_char": 12637, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 12794, "end_char": 12804, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 39", "label": "PROVISION", "start_char": 12835, "end_char": 12845, "source": "regex", "metadata": {"statute": null}}, {"text": "1vfadhya Pradesh High Court", "label": "COURT", "start_char": 13782, "end_char": 13809, "source": "ner", "metadata": {"in_sentence": "The 1vfadhya Pradesh High Court took the same view in Beni Prasad Tandon and Others v. Jabalpur Improvement Trust, Jabalpur(')."}}, {"text": "section 31", "label": "PROVISION", "start_char": 13947, "end_char": 13957, "source": "regex", "metadata": {"statute": null}}, {"text": "section 39", "label": "PROVISION", "start_char": 14265, "end_char": 14275, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45", "label": "PROVISION", "start_char": 15409, "end_char": 15419, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52", "label": "PROVISION", "start_char": 15692, "end_char": 15702, "source": "regex", "metadata": {"statute": null}}, {"text": "section 70", "label": "PROVISION", "start_char": 17031, "end_char": 17041, "source": "regex", "metadata": {"statute": null}}, {"text": "section 72(1)", "label": "PROVISION", "start_char": 17531, "end_char": 17544, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 17750, "end_char": 17760, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 77", "label": "PROVISION", "start_char": 17846, "end_char": 17856, "source": "regex", "metadata": {"statute": null}}, {"text": "section 68", "label": "PROVISION", "start_char": 18049, "end_char": 18059, "source": "regex", "metadata": {"statute": null}}, {"text": "section 77", "label": "PROVISION", "start_char": 18249, "end_char": 18259, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 18732, "end_char": 18758, "source": "regex", "metadata": {}}, {"text": "sections 28 and 34", "label": "PROVISION", "start_char": 18764, "end_char": 18782, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "section 78", "label": "PROVISION", "start_char": 19049, "end_char": 19059, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "section 147", "label": "PROVISION", "start_char": 19234, "end_char": 19245, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "section 34", "label": "PROVISION", "start_char": 19503, "end_char": 19513, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 19543, "end_char": 19553, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 19723, "end_char": 19733, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "section 5", "label": "PROVISION", "start_char": 20066, "end_char": 20075, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 20318, "end_char": 20328, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act 1894", "label": "STATUTE", "start_char": 20336, "end_char": 20361, "source": "regex", "metadata": {}}, {"text": "section 23", "label": "PROVISION", "start_char": 20467, "end_char": 20477, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act 1894", "statute": "the Land Acquisition Act 1894"}}, {"text": "section 23", "label": "PROVISION", "start_char": 20520, "end_char": 20530, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act 1894", "statute": "the Land Acquisition Act 1894"}}, {"text": "section 28", "label": "PROVISION", "start_char": 20574, "end_char": 20584, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act 1894", "statute": "the Land Acquisition Act 1894"}}, {"text": "[1961] 3 S. C. R. 676", "label": "CASE_CITATION", "start_char": 20605, "end_char": 20626, "source": "regex", "metadata": {}}, {"text": "section 34", "label": "PROVISION", "start_char": 20693, "end_char": 20703, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act 1894", "statute": "the Land Acquisition Act 1894"}}, {"text": "Tribunal was not empowered to award interest under the Punjab Act", "label": "STATUTE", "start_char": 20758, "end_char": 20823, "source": "regex", "metadata": {}}, {"text": "s. 23(1)", "label": "PROVISION", "start_char": 20943, "end_char": 20951, "source": "regex", "metadata": {"linked_statute_text": "Tribunal was not empowered to award interest under the Punjab Act", "statute": "Tribunal was not empowered to award interest under the Punjab Act"}}, {"text": "s. 23(2)", "label": "PROVISION", "start_char": 20979, "end_char": 20987, "source": "regex", "metadata": {"linked_statute_text": "Tribunal was not empowered to award interest under the Punjab Act", "statute": "Tribunal was not empowered to award interest under the Punjab Act"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 21082, "end_char": 21087, "source": "regex", "metadata": {"linked_statute_text": "Tribunal was not empowered to award interest under the Punjab Act", "statute": "Tribunal was not empowered to award interest under the Punjab Act"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 21160, "end_char": 21165, "source": "regex", "metadata": {"linked_statute_text": "Tribunal was not empowered to award interest under the Punjab Act", "statute": "Tribunal was not empowered to award interest under the Punjab Act"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 21278, "end_char": 21283, "source": "regex", "metadata": {"linked_statute_text": "Tribunal was not empowered to award interest under the Punjab Act", "statute": "Tribunal was not empowered to award interest under the Punjab Act"}}, {"text": "ss. 28 and 34", "label": "PROVISION", "start_char": 21332, "end_char": 21345, "source": "regex", "metadata": {"linked_statute_text": "Tribunal was not empowered to award interest under the Punjab Act", "statute": "Tribunal was not empowered to award interest under the Punjab Act"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 21743, "end_char": 21747, "source": "regex", "metadata": {"linked_statute_text": "Tribunal was not empowered to award interest under the Punjab Act", "statute": "Tribunal was not empowered to award interest under the Punjab Act"}}, {"text": "Interest Act 1839", "label": "STATUTE", "start_char": 21756, "end_char": 21773, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 1", "label": "PROVISION", "start_char": 22037, "end_char": 22041, "source": "regex", "metadata": {"linked_statute_text": "the Interest Act 1839", "statute": "the Interest Act 1839"}}, {"text": "Interest Act", "label": "STATUTE", "start_char": 22049, "end_char": 22061, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mathew", "label": "JUDGE", "start_char": 22340, "end_char": 22346, "source": "ner", "metadata": {"in_sentence": "The petitioners on the other hand drew our attention to a decision of this court in the Godhra Hectricity Co. Ltd. and another v. The State uf Gujarat and anpther (') where one of us Mathew J., speaking for the Court held as follows :- ·\n\n'There can be no doubt about the correctness of the\n\ngenral rule under which a purchaser who takes possession is charged with interest on his purchase money from that time until it is paid."}}, {"text": "SUPREME COURT REl:'ORTS\n\n[1975J 3 S.C.R.", "label": "COURT", "start_char": 23514, "end_char": 23554, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REl:'ORTS\n\n[1975J 3 S.C.R.\n\nAlthough in the Godhra Electricity Co's case (supra) the Court\n\nha~; noticed the decision in Sa1u1der Sing/i's case (supra), it may b;\n\nob.;"}}, {"text": "Godhra Electricity Co", "label": "ORG", "start_char": 23572, "end_char": 23593, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REl:'ORTS\n\n[1975J 3 S.C.R.\n\nAlthough in the Godhra Electricity Co's case (supra) the Court\n\nha~; noticed the decision in Sa1u1der Sing/i's case (supra), it may b;\n\nob.;"}}, {"text": "Sa1u1der Sing", "label": "OTHER_PERSON", "start_char": 23649, "end_char": 23662, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REl:'ORTS\n\n[1975J 3 S.C.R.\n\nAlthough in the Godhra Electricity Co's case (supra) the Court\n\nha~; noticed the decision in Sa1u1der Sing/i's case (supra), it may b;\n\nob.;"}}, {"text": "section 5", "label": "PROVISION", "start_char": 23764, "end_char": 23773, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 72 and 7", "label": "PROVISION", "start_char": 25273, "end_char": 25290, "source": "regex", "metadata": {"statute": null}}, {"text": "article 31", "label": "PROVISION", "start_char": 26160, "end_char": 26170, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Patel", "label": "OTHER_PERSON", "start_char": 26314, "end_char": 26319, "source": "ner", "metadata": {"in_sentence": "240: of 1973, Mr. Patel additionally urged that publb; tion of the notice of the Scheme was not made in accordance with section 46 ( 2) of the Act which requires weekly publication in the Gazette for three consecutiv~. weeks."}}, {"text": "section 46", "label": "PROVISION", "start_char": 26416, "end_char": 26426, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52(2)", "label": "PROVISION", "start_char": 26653, "end_char": 26666, "source": "regex", "metadata": {"statute": null}}, {"text": "Shroff", "label": "OTHER_PERSON", "start_char": 27249, "end_char": 27255, "source": "ner", "metadata": {"in_sentence": "We sbould observe that Mr. Shroff pointed out th<.t in view of the decision of the Supreme Court in Satinder Singh's case (supra) ad another lkcision of the Madhya Pradesh High Court in Lakhania/ and others v. Town Improvement Trust, Jabalpur and others,(') the Tribunal has been always awarding interest in acquisition cases under the Act and he undertakes on behalf of the respondents, irrespective of our decision, to pay interest to the petitioners at 6% per annum from the date of actual deiivery of possession upto the dote of payment of the compensation."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 27305, "end_char": 27318, "source": "ner", "metadata": {"in_sentence": "We sbould observe that Mr. Shroff pointed out th<.t in view of the decision of the Supreme Court in Satinder Singh's case (supra) ad another lkcision of the Madhya Pradesh High Court in Lakhania/ and others v. Town Improvement Trust, Jabalpur and others,(') the Tribunal has been always awarding interest in acquisition cases under the Act and he undertakes on behalf of the respondents, irrespective of our decision, to pay interest to the petitioners at 6% per annum from the date of actual deiivery of possession upto the dote of payment of the compensation."}}, {"text": "Satinder Singh's", "label": "OTHER_PERSON", "start_char": 27322, "end_char": 27338, "source": "ner", "metadata": {"in_sentence": "We sbould observe that Mr. Shroff pointed out th<.t in view of the decision of the Supreme Court in Satinder Singh's case (supra) ad another lkcision of the Madhya Pradesh High Court in Lakhania/ and others v. Town Improvement Trust, Jabalpur and others,(') the Tribunal has been always awarding interest in acquisition cases under the Act and he undertakes on behalf of the respondents, irrespective of our decision, to pay interest to the petitioners at 6% per annum from the date of actual deiivery of possession upto the dote of payment of the compensation."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 27379, "end_char": 27404, "source": "ner", "metadata": {"in_sentence": "We sbould observe that Mr. Shroff pointed out th<.t in view of the decision of the Supreme Court in Satinder Singh's case (supra) ad another lkcision of the Madhya Pradesh High Court in Lakhania/ and others v. Town Improvement Trust, Jabalpur and others,(') the Tribunal has been always awarding interest in acquisition cases under the Act and he undertakes on behalf of the respondents, irrespective of our decision, to pay interest to the petitioners at 6% per annum from the date of actual deiivery of possession upto the dote of payment of the compensation."}}]}
{"document_id": "1975_3_696_704_EN", "year": 1975, "text": "COMMISSIONER OF INCOME TAX (CENTRAL) DELHI A\n\n\\I.\n\nHARPRASAD & CO. (P) LTD.\n\nFebruary 25, 1975\n\n[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]\n\nIncome-tax Act (ll of 1922) Sections 128, 22(2A), 24(2A) & (2B)- B Capital loss incurred in 1/te year when capital gains were not exigible to taxlf could be set against capital gains in subsequent years.\n\nBy the Income-tax and Excess Profit Tax (Amendment) Act, 1947 s. 12B was inserted in the Indian Income-tax Act, 1922 .. making capital gains which arise after March 31. 1946, taxable. The same A':t inserted sub-sections (2A) and (2B) in s. 2.4 of the Income-tax Act.\n\nAs a result of the Indian Finance Act, 1949 which restricted the operation of s. 12B to capital gains ari.sing before April l, 1948, a.nd the Finance (No. 3) Act of 1956 which restored C tax on capital gains with effect from. April l, 1948 capital gains arisinll from\n\n1-4-1948 to 31-3-1956 were not taxable.\n\nFor the assessment vear J 955-56 which relates to the period when ce.pital gains were not taxable the assessee claimed a loss of Rs. 84,862/- arisini: from the 5a\\e of certain sharc:s.\n\nThe Income-tax Officer disallowed the loss on the ground that it was a los.s of capital nature.\n\nThe Appellate Assistant Commissioner, .in appeal, held that the assessee's claim was exaggerated, that the. actual .lo!! wa, only Rs. 28,662/- and agreed with the Income-tax Officer that the IO!s D was not a revenue loss but a capital loss.\n\nBefore the Tribunal the assessee contended that the amount of Rs. 28,662/. which had been held to be a capital IE>ss by the authorities ihould be allowed to be carried forward and set off agairat profits and gains under the head \"Capital gains\" earned in future as laid down in. s. 24(2A) and (2B).\n\nThe Tribunal held in favour of the ass(:ssee.\n\nThe High C0urt, in reference, confirmed the order of the Tribunal holding that the effe:t of sub-section:; (2A) and (28) of s. 24 read with sections 6 and 12B was that if a capital loss was incurred in a Year in which a. cpital gain did not attract tax under section l 2B even then such loss would still be loss £ under the head 'capital iains' and if in a subsequent year the assessee had any profit under that head it would still be carried forward and set off against the taxable capital gain.\n\nAllowing the appeal to this Court, HELD : (1) From the charging provision of the Indian Income-tax Act it is discernible that the word5 'income' or 'profits and gains' should be understood as including losses, so that both must enter into computation, wherever it becomes material, of the taxable income of the assessee. Although s. 6 classifies F income under six heads the main charging provision is s. 3 which levies incometax as only one tax on the 'total income' of the assessee a5 defined in s. 2(15).\n\nAn income in order to come within the purview of that definition must satisfy two conditions, (a) it rnust comprise the 'total amount of income. profits. and gains refeued to in s. 4(1), and (b) it must be computed in the manner laid down in the Act. If either of these conditions fails the income will not be a part of the total income that can be brought tu charge. [702F-703BI\n\n(2) The concept of arry forward of loss does not stand in vacuo.\n\nItf: sole G purpose is to set off the loss against the profits of a subsequent year.\n\nSet off implies that the tax is exigible and the assessee wants to adjust the loss a1ainst prcfit tn reduce the tax demand.\n\nTt follows that if such set off is not nermissible or possible owi11g to the income or profits of the subsequent year being from a non-.taxable source, then~ would be no point in allowing the loss to be carried forward.\n\nAlso, if the Joss arising in the previouJ year was under a hea•i not chargeable to tax it covld not be allowed to be carried forward and absorbed ag<tinst income in a subsequent year from a taxabb source. [704C-E]\n\n(3) Capital gains would be covered bv the definition of income ins. 2(6C) II only if they were chargeable under s. l 2B.\n\nBut s. 12B was not operative in the vears 1948 to 1956. Thus in the relevant previous year and the asses~; ment year or even in he subsequent yeac, 'capital gains' or 'capital losses' did not\n\nform par: of the total income of the assessee which could be brought to charge and were, therefore, not required to be computed under the Act.\n\nThat is condition (b) which 'total income' must satisfy is not satisfied in the present case. l.703B-D]\n\n(4) Under s. 22(2A) it is a condition precedent to the carry forward and set off of the loss that the assesse must file a return either in response to a general notice, under s. 22( 1) or voluntarily, without any individual notice unuer subsectio•1 (2). If he does not file the return for the year in which the loss wa.q i\"ncurred and get the loss computed by the Income-tax Officer, th~ right to carry forward the loss v.'ill also be lost.\n\nBut if the loss is from a source or head of income not liable to tax or exempt from tax neither the assessee is required to show the same in the. return nor is the Income-tax Officer under any obligation to compute or assess it, much less for the purpose of carry-farward. [7030-F]\n\n( 5) In the instant case, the asscssee in his return had not shown any 'capital loss' but claimed the loss as a revenue loss.\n\nThe Income-tax Officer should have rejected the asmsee's claim to carry forward the loss merely on the ground that it was not a revenue loss and he need not have given a finding that it was a capital loss, because 'capital gains' were not taxable during the year. [703F-Ci]\n\n( 6) Section 24 (2) expressly refers to loss, 'in any busines$; profession or vocation'. It does not cover a capital loss under the head 'capital gains' which at the relevant time were not chargeable and did not enter into computation of the total income of the assesee. Therefore, under s. 24(1) and (2) the assessee had no independent right to carry forward his capita I loss even if it could not be set off owing to the non-taxability of capital gains against future profits in the immediate subsequent years.\n\n[704B-C]\n\n(7) Assuming, therefore, that the assessee in the subsequent years 1955-56 and 19 56-57 when the capital gains were not taxable made huge capital gains he would not be obliged to show those capital gains in his return. Therefore, the loss suffered by him in the relevant assessment year in the instlmt case could not be absorbed or set off against such capital gains.\n\n[704F]\n\nC!VIL APPELLATE JURISDICTION : Civil Appeal No. 494 of 1970.\n\nFrom the judgment and order dated the 24th January, 1969 of the Delhi High Court in Income Tax Ref. No. 51 of 1966.\n\nV. C. Desai, !. Ramamurthy and R. N. Sachthey, for the-appellant.\n\nA. K. Sen and H. K. PUl'i, for the respondent.\n\nThe Judgment of the Co'CI't was delivered by SARKARIA, J.-This appeal is directed against the Judgment, dated 24-1-1969, of the High Court of Delhi answering in the affirmative the following question referred to it under s. 66 (1) of the India•, Incometax Act, 1922 (for short, the Act) by the Commissioner of Income-tax:\n\n\"Whether on the facts and in the circumstances of the case the capital loss of R.~. 28,662/- could be determined and carried forward in accordance with thr provisions of Section\n\n24 of the Indian Income-tax Act, 192:.t, when the provisions of section 12B of the Income-tax Act, 1922 itself were not applicable in the assessment year 1955-56.\"\n\nThe assessee (respondent) is a Private Limited Company.\n\nThe assessment year under tderence is 1955-56 and the relevaQ.t previous year is from 1-5-1953 to 30-4-1954. On lC\\-1-1952 the assessee pur-\n\n14-470SupCf/75\n\n198 SUPREME COUllT REPORTS [1975] 3 s.c.R.\n\nchased 112-4shar1es of M/s. Intercontin'!nt Travancore Pvt. Ltd. at a cost of Rs. 1,12,400/- from M/s. Escorts (A&M) Ltd. In the rek:- vant accounting year ending on 304-1953 the assessee received 562 bonus sh:i.res from the same company. It thus acquired a total number of 1686 shares. On 3-9-53, i.e. during the relevant previous year the assessee sold all these 1686 shares !o M/s. Escorts (Agents) Ltd. for Rs. 84,300 and claimed a loss of Rs. 84,862/- in the income-tax return filed by it.\n\nThe Income-tax Officer disallowed the entire loss of Rs. 84,862 on the ground that it was a loss of a capital nature.\n\nThe assessee carried an appeal to the Appellate Assistant Commii,- sioner and contended that this loss of Rs. 84, 862 /- was a revenue l0!1s . arisin)!; out of dealing in shares. The Appellate Assistant Commissioncr\n\nfound that the assessee's claim was exaggerated and that the actual lrn!S was to the tune of Rs. 28,662/- only. He furthtr held that this l0!1s of Rs. 28,662/- was not a 'revenue loss' but a 'capital loss' arising out\n\nof change of investments.\n\nAgainst the decision of the Appellate As~:stant Commissioner tr.e assessee preferred an appeal before the Tribunal, challenging the findings of the Commissioner both in regard to the amount of loss and rts nature. At the stage of arguments before the Tribunal, the assessee's C..ounsel did not press these grounds of appeal but took up the plea that the amount of Rs. 28,662/- which had been held to be a \"capital 10s.!.'' by the authorities below, should be allowed to be carried forward and set off against profits and gains, if any, under the head \"capital gairu\" earned in futr.re, as laid down in sub-sections (2A) & (2B) of s. 24 of the Act.\n\nDespite objection from the Departmental Representativ1~, the Tribunal allowed this new ground to be raised with the ob&ervation that ft was \"a pure question of law and did not require investigation of any fresh fact\". It further accepted the contention of the asessee and directed that the \"capital loss\" of Rs. 28,662/- should be carried forward and et off agairu.t \"capital gains\" it any, in future.\n\nAt the instance of the Commissioner of Income-tax, the Tribunal referred the above question (set out at the commencement of this judgment) to the High Court under~- 66(1) of the 1922 Act.\n\nIt was contended before the High Court on behalf ot the Revenue that the expression \"capital gains\" in sub-section (2A) of s. 24 has reference only to section 12B so that the loss suffered in the year i.n which. the profits under Che head \"capital gains\" were not taxable, could not fall within sub-section (2A) of s. 24, S. K. Kapoor J., speaking for the Division Bench, rejected this contention in these tenns :·\n\n\"This argument overlooks the fact that the head of income chargeable to income-tax are set out in section 6.\n\nlion 12-B deals only with the computation of capital gains and with their taxability if they arise during a particular period.\n\nAs a matter of fact, section 12B itself refers to\n\nection 6 inasmuch as it says that \"the tax shall be payable by an assessee under the head \"capital gains\". This obviously has reference to the Vlth head in section 6. The effect of\n\nsub-section (2A) and (2B) of section 24 read with section 6 and 12B, therefoce, is that if a .capital !oss is incurred in a year in which a capital gain did not attract tax under section 12B such loss would still be loss under the head \"capital gains\" and if in subsequent year the assessce has any profit under that head it can still be carriM forward and set oft' against the taxable capital gain. The Tribunal, was in my opinion, right in c.oming to the conclusion that it did.'.'\n\nHence this appeal by the Commissioner of Income-tax (Central) Delhi.\n\nCapiwl Gains Tax for the first time was introdued by the Incomctax and Excess Profit Tax (Amendment) Act, 1947 (No. 22 of\n\n1947) which inserted section 12B in' the Act.\n\nThis section made taxable \"capitai £ains\" which arose after March 31, 1946 The same Act of 194 7 added as the Vlth heali \"capital gains\" in 5. 6 of the Act. It also inserted sub-sections (2A) and (2B) ins. 24 of the Act.\n\nThe Indian Finance Act, 1949 virtually abolished the levy and restricted the operation of s. 12B to \"capital gains\" arisin9 before the 1st April, 1948. But s. 12B in its restricted form, andi the VIth head, 'capital gains' in s. 6, and sub-sections (2A) and (2B) of s. 24 were not deleted and continued to form part of thr. Act. The Finance (No.\n\n3) Act, 1956 reintroduced the \"capital gains\" tax with effect from the 31st March, 1956. It substantially altered the old section 12B and brought it into its present form. As. a result of Finance Act (3) of 1956 \"capital gains\" again became taxable in the assessment year 1957-\n\n58. The position that emerges is that \"capital gains\" arising, between 1-4-1948 and 31-3-1956, were not taxable. The capital loss in question relates to this period.\n\nMr. V. S. Desai, learned Counsel for the appellant contends that accordir1g to the scheme of the Act a \"capital Joss\" occurring in a previous year, could be allowed to be carried forward and set off against the capital gains of a subsequent year, only if the income 'lllder that head was taxable in the relevant previous and subsequent years. Since during the period from 1-4-1948 to 31-3-1956, capital gains (plu$) or capita! gains (minus) did not enter into computation of the total income of the assessee chargeable to tax under s. 3 read with s. 12B of the Act, the question of carrying forward such loss did not arise, much Jess could such a loss be set off against the profits of any 6Ubsequent year.\n\nAs against this, Sbri Ashok Sen, learned Counsel for the assessee maintains that a right to carry forward a loss under any of the heads enumerated in s. 6, is. not dependent upon the taxability of income under that head; it is sufficient if at the relevant time \"capital 9ain~\" is one of the heads cf income recognized by the charging s. 6 and the loss is adjustable ae:ainst \"capital rrains\", if anv, in future under s. 24.\n\nH The argument proceeds; thats. 6(vi) was not lying inert on the statute boo]< but was operative, throughout, for the purpose of calculating the losses under that head. Shri Sen compared the non-taxability of\n\ncapital gains during the: period from 1-4-1948 to 31-3-1956, to a tax holiday for those years. Another illustration given by the learn.ed Counsel is of a person whose total income falls entirely on the negative\n\nside on account of losses suffered by him under any of the heads of income given in s. 6. Such a person notwithstanding the fact that he had no assessable income has a ri3ht to file a return and get his losses\n\nconputed by the Income-tax Officer merely for the purpose of carrying forward the loss. The Income-tax Oillcer, it is added, ca1mot ignore th:! return filed by the assessec, voluntarily, showing losses even though such a return is filed beyond time. ln this connection, Shri Sen has referred to Commissioner of fllcome-tax, Punjab\n\nv. Kulu Vai/ey Transport Co. Ltd.('), Jaikisha11 Gopikishan and Sons v. Commissioner vf Income-tax, .M.P.(2) and Commissioner of Income-1ax, M .. dhya Pradesh v. Khushal Chaid Daga(8).\n\nBefore dealing with the contentions canvassed, it will &c appropriate to have a clear idea of the terms 'income', 'total income', 'computation of total income', 'carrying forward' of a loss and its purpose, in the context of the scheme of the Act.\n\nSection 2 Cl. ( 15) defines \"total income\" to mean total amount of income, profits and gains referred to in sub-section ( 1) of sectio11 4 computed in the manner laiJ down in this Act. Section 3, captioned as 'Charge of Income-tax!', emphasises that the income-tax shall be charged in respect of the total income of the previous year of, every assessee. Section 4 defines the ambit of that total i11come. Section 6 enumerates six heads of incone, profits and gains chargeable to incometax. They are :\n\n\" ( i) Salaries.\n\n(ii) Interest on securities.\n\n(iii) Income from property.\n\n(iv) Profits and gains of business, profession or vocation.\n\n(v) Income from other sources.\n\n(vi) Capital gains.\"\n\nSections 7, 8, 9, W, 12 and 12B relate to payability and computation of tax under the various heads of income. The material part of s. I 2B at the relevant time was as follows :\n\n\"12B ,(1) The tax shall be payable by an assessee under the head \"Capital gains\" in espect of any profits or gains arising from the sale, exchange or trnnsfer of a capital asst effected after the 3 I st day of March I 946 and before the 1st day of April, 1948 and such profits and gains shall be deemed to be income of the previous yenr in which the sale, exchange or transfer took place.\" '\n\nl l 7 7, f. T. R. 518 (S.C.).\n\n(2) B4. !. T. R.(~5\n\n(3) 41. l. T. R. 177 (S.C.)\n\nSection 22(1) requires a general notice to be published requiring every person whose total income during the previous year exceeds the maximum non-taxable limit to file a return. Sub-sction (2) of this section enables the income-tax Officer to issue no.ice to any such person requiring him to furnish a return. Sub-section (2A)-which was inserted by !he Income-tax Amendment Act 25 of 1953 with effect from 1-4-1952-provides:\n\ni.If any person who has not been served with a notice under sub-section (2) has sustained a loss of profits or gains in aey year under the head Profits and gains of business, profession or vocation, and such loss or any part thereof would ordinarily have been carried forward under sub-s. (2) of section 24, he shall, if he is to be entitled to the benefit of the carry forward of loss in any subsequent assssment, furnish within the time specified in the general notice given under sub-s. ( 1 ) all the particulars required under the prescribed form of return.\" The material purt of s. 24 runs thus :\n\n\"24. ( 1 ) Where any assessce sustains a loss of profits or gains in any year under any of the heads mentioned ; n section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under any other head in that year :\n\n* * ..\n\nProvided that in computing the profits and gains chargcabl<: under the head \"Profits and Gains of business, profession or voc, ation\", any loss sustained in speculative transaction which a1e in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions : * * • ( 2) Where any asscssee sustains a Joss of profits or ga; ns in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March 1940, in any business, profession or vocation. and the loss cannot be wholly set off under sub-section ( 1), so much of the loss as is not so set off or the whole Joss where the assessee had no other head of income shall be carried forward to the following year, and ( i) where the loss was sustained bv him in a business consisting of speculative transactions, it shall be set off only against the profits and galns. if .iny, of any business in speculative transaction carried on by him in that year; H\n\n(ii) where the loss was sustained by him in any other business, profession or vocation, it shall be set off against the profits and gains, if any. of anv business, profession or vocation carried on by him in that year provided that the business, profession or vocation in which the loss was originally sustained continued to be carried on by him in that year; ar.d\n\nif the loss in either case cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following year and so on ..... . * * * 2A. NcJtwithstanding anything contained in sub-section ( 1 ) , where the loss sustained is a loss falling under the head \"Capital gains'', such loss shall not be set off except against any profits and gains falling under that head.\n\n2B. Wherean assessee sustains a loss such as is referred c to in sub-s1ction (2A) and the loss cannot be wholly set off in accordance with the provisions of that sub-section, the portion not so set ofl' sha!l be carded forward to the following year and set oft against capital gains for that year, and if it cannot be so sd off, the amount thereof not so set oft shall be carried forward to the following year and so on, so however, that no such loss shall be so carried forward for more than D six years :\n\nProvided that where the loss sustained in any previous year does not exceed fifteen thousand rupees, it shall not be carried forward.\n\n(3) When; in the course of the assessment of the t'Otal income of any assessee, it is established that a loss of profits or gains has taken place which he is entitled to have set off under the provisions of this section. the Income-tax, Office~ shall notify to the assessee by ord<:r in writing the amount of the loss as computed by him for the purposes of this section.\"\n\nsction 2( 6C) provides that 'income' includes (among other things)-\" (vi) any capital gai.n chargeahle under Section 128.\"'\n\nFrom the charging provisions of the Act, it is discernible that the words 'income' or 'profits and gains'. should be understood as including losses also, so that, in one sense 'prots ar; d gains' represent 'plus income' whereas losses represent 'minus income' (1).\n\nIn other \\\\'ords, Io's is negative profit. Both positive and negative profits are of a revenue character. Both must enter into computaiion, wherever it beC'Jmes material, in the same mode of the taxable income of i:he\n\nassessee.\n\nAlthough s. 6 classifies income under six heads, the main charging provision is s. 3 which levies income-tax, as only one tax,\n\non the 'total income' of the assessee 3.S defined in s. 2 (15). An income\n\nin orcier to come within the purview of that definition must satisfy two conditions. Firstly, it must comprise the \"total amount of income, H ... ------- (I) CIT v. Ktwamchand Prem Chand 40 ITR 106 (SC): CIT v. E!phinston Spinning & Weai'ing Mi/is; 40 !TR 142'f:).\n\nc.r.T. v. JfA.1U'ARSAD & co. (Sarkaria, .'.) 703\n\nprofits and gains referred to in s. 4( 1) .\" Secoridly, it must be \"co~ puted in the manner laid down in the Act\". If either of these cond1tio, ns fails, the income will not be a part of the \"total income\" th!\\t c!'ln be brought to charge.\n\nNow, capital gains would be covered by the definition of 'income' in sub-section (6C) of s. 2, only if they were chargeable undr s. 12B.\n\nAs noticed already, s.12B as modified by the Finance Act, 1949, Jid not charg,. any 'capital gains' arising between 1-4-1948 to 1-4-19?7 lnJced s. 12B was not operative in these years (1948-57). Durmg this pe'riod, \"capital gains\", whether on the positive or the negative side, could not be computed a.nd charged under s. 12B or any other provisions of the Act. In the instant case, the second condition, name-. ly, \"the manner of computation laid down in the Act\" which-to use the words of Stone C.J. (1)-\"forms an integral part of the definition of 'total income' \" was not satisfied. Thus in the relevant previous year and the assessment year, or even in the subsequent year, capital gains or ''capital los..es\" did not form part of the \"total income\" of the assessee which could be brought to charge, and were, therefore, not required to be computed unjer tho Act.\n\nBefore the insertion of sub-section (2A) in s. 22 by the amendment of 1-4-1952, an assessee was entitled to carry forward a !os• even if ho had submitted no return for the year in which the loss was\n\nsutained. After the enactment of sub-section (2A), it is a condition precedent to the carry-forward and set off of the loss, that the assessee must file a return either in response to a general n'Otice under sub-section (1) of s. 22 or voluntarily, without any individual notice 1mder 1mb-section (2) of that section. If he does not file the return for the year in which the loss was incurred and get the loss computed oy the Income-tax Officer, the right to carry forward the loss will also be lost.\n\nBut if the loss is from a source or head of income not liable to tax or congenitally exempt from income-tax, neither the assessee is required to show the same in the return, nor is the Income-tax Officer under any obligati'On to compute or assess it, much less for the purpose of \"carry forward\". It is noteworthy that in the instant case, tile assessec in his return had not shown any \"capital losses\". He had claimed this loss as a revenue loss. The Income-tax Officer could, therefore, reject the assessee's claim to carry forward the loss, merely on the ground that it was not a \"revenue l'Oss''. His further finding that it was !\\ \"capital loss\" was only incidental and, in fact, Wl'lS n_ot nccess.a; t.\n\nFrom what has been said above, it follows as a necessary corollary. that during the period s. 12B did not make income under the head, 'capital gains' charneable, an assessee was neither required to show income under that head in his return, nor entitled to file a return showing \"capital losses\" merely for the purpose of getting the same computed and carried forward. Sub-section (2A) of s. 22 would not give him such a right because the operation of that sub-section is, in terms, confined to (i) a l'OSs which is sustained \"under the head 'profita and gains' of business, profession or vocation\" and would ordinarily\n\n(1) In re Kamdar [1946] LT.IC 10, 21.\n\nhave been carried forward under sub-section (2) of s. 24, and (ii) to \"income\" which falls within the definition of 'total income. Both these conditions necessary for the application of the sub-section are lacking in the present case.\n\nNor do we find any substance in the contention that under sub-sec tion (2) read with sub-section (1) of s. 24, the assessee had an independent right to carry forward his capital loss, even if it could not be set off, owing to the non-tax.ibility of capital gain&, against future profits, il any, in the immediate subse<J.uent years. Sub-section (2) cif s, 24 expressly refers to loss 'in any business, profession or vocation'. lt does not cover a. \"capital l•oss\", or the minus income u11der the head 'capital gains' which at the relevant time, were not chargeable and did not enter into computation of the 'total income' of the assessee under the Act.\n\nJt may be remembered that the concept of carry forward of loss does not stand in vacuo. It involves the notion of set off. Its sole purpose is to set off the loss against the profits of a subsequent year. It presupposes the permissibilil y and possibility of the carried-forward Joss being absorbed or set off against the profits and gains, il' any, of the subsequent year. Set Dff implies that the tax is exigible and the as, essee wants to ajust the Joss agaii1st profit to reduce the taxdemand. It follows that if such set-off is not permissible or , posible owing to the income or profits of the subsequent year being from a non-taxable source, there would be no point in allowing the loss to be \"carried forward\". Conversely, if the loss arising in the previous year was under a head not chargeable to tax, it could not be allr, wed to be carried forward and absorbed against income in a subsequent year. from a taxable source.\n\nNow let us test the claim of the assessee in the light of the abuve principles. 111e \"cap.ital loss\" of Rs. 28,662/- in the present case, was sustained in September 1953, that is, in the previous year 1953-54.\n\nLet us assume that in the subsequent years 195.S-56 and 1956-57 when the capital gains were not taxable, he made huge capital gains far exceedin.~ this loss, could he be obliged to show those capital f!ains i!Jr. his return? Could the Joss of the year 1953-54 be absorbed or set off against sur; h capital gains of the subsequent years? The answer is cmpha1ically in the negative.\n\nThe cases cited by Shri Sen are not relevant. In all those cases, the heads of income under which the losses were sustained, were chargeable to tax. None of them was a case of 'capital loss' pert~1in ing to the period, 1948 to 1957.\n\nFor the foregoing reasons, we are of the opinion that the H:igh Court was in error in answering the question referred to it, in favour of the assessee. We would reverse that answer in favour of the Re,•enue.\n\nIn the result, the dppeal is accepted with costs.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 105, "entities": [{"text": "COMMISSIONER OF INCOME TAX (CENTRAL) DELHI", "label": "PETITIONER", "start_char": 0, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX (CENTRAL) DELHI", "offset_not_found": false}}, {"text": "HARPRASAD & CO. (P) LTD", "label": "RESPONDENT", "start_char": 51, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "HARPRASAD & CO. (P) LTD", "offset_not_found": false}}, {"text": "February 25, 1975", "label": "DATE", "start_char": 77, "end_char": 94, "source": "ner", "metadata": {"in_sentence": "February 25, 1975\n\n[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 97, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 116, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 135, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 154, "end_char": 168, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sections 128, 22(2A), 24(2A)", "label": "PROVISION", "start_char": 182, "end_char": 210, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 421, "end_char": 427, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 448, "end_char": 475, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2", "label": "PROVISION", "start_char": 596, "end_char": 600, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 610, "end_char": 624, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "As a result of the Indian Finance Act, 1949", "label": "STATUTE", "start_char": 627, "end_char": 670, "source": "regex", "metadata": {}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 705, "end_char": 711, "source": "regex", "metadata": {"linked_statute_text": "As a result of the Indian Finance Act, 1949", "statute": "As a result of the Indian Finance Act, 1949"}}, {"text": "-3-1956", "label": "DATE", "start_char": 910, "end_char": 917, "source": "ner", "metadata": {"in_sentence": "April l, 1948 capital gains arisinll from\n\n1-4-1948 to 31-3-1956 were not taxable."}}, {"text": "s. 24(2A)", "label": "PROVISION", "start_char": 1741, "end_char": 1750, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 1933, "end_char": 1938, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 6 and 12B", "label": "PROVISION", "start_char": 1949, "end_char": 1967, "source": "regex", "metadata": {"statute": null}}, {"text": "From the charging provision of the Indian Income-tax Act", "label": "STATUTE", "start_char": 2353, "end_char": 2409, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2637, "end_char": 2641, "source": "regex", "metadata": {"linked_statute_text": "From the charging provision of the Indian Income-tax Act", "statute": "From the charging provision of the Indian Income-tax Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2709, "end_char": 2713, "source": "regex", "metadata": {"linked_statute_text": "From the charging provision of the Indian Income-tax Act", "statute": "From the charging provision of the Indian Income-tax Act"}}, {"text": "s. 2(15)", "label": "PROVISION", "start_char": 2805, "end_char": 2813, "source": "regex", "metadata": {"linked_statute_text": "From the charging provision of the Indian Income-tax Act", "statute": "From the charging provision of the Indian Income-tax Act"}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 2994, "end_char": 3001, "source": "regex", "metadata": {"linked_statute_text": "From the charging provision of the Indian Income-tax Act", "statute": "From the charging provision of the Indian Income-tax Act"}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 4036, "end_char": 4042, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22(2A)", "label": "PROVISION", "start_char": 4484, "end_char": 4493, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22( 1)", "label": "PROVISION", "start_char": 4649, "end_char": 4658, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24", "label": "PROVISION", "start_char": 5606, "end_char": 5616, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(1)", "label": "PROVISION", "start_char": 5889, "end_char": 5897, "source": "regex", "metadata": {"statute": null}}, {"text": "V. C. Desai", "label": "JUDGE", "start_char": 6681, "end_char": 6692, "source": "ner", "metadata": {"in_sentence": "V. C. Desai, !.", "canonical_name": "V. C. Desai"}}, {"text": ". Ramamurthy", "label": "LAWYER", "start_char": 6695, "end_char": 6707, "source": "ner", "metadata": {"in_sentence": "V. C. Desai, !."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 6712, "end_char": 6726, "source": "ner", "metadata": {"in_sentence": "Ramamurthy and R. N. Sachthey, for the-appellant."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 6748, "end_char": 6757, "source": "ner", "metadata": {"in_sentence": "A. K. Sen and H. K. PUl'i, for the respondent."}}, {"text": "H. K. PUl'i", "label": "LAWYER", "start_char": 6762, "end_char": 6773, "source": "ner", "metadata": {"in_sentence": "A. K. Sen and H. K. PUl'i, for the respondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 6841, "end_char": 6849, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Co'CI't was delivered by SARKARIA, J.-This appeal is directed against the Judgment, dated 24-1-1969, of the High Court of Delhi answering in the affirmative the following question referred to it under s. 66 (1) of the India•, Incometax Act, 1922 (for short, the Act) by the Commissioner of Income-tax:\n\n\"Whether on the facts and in the circumstances of the case the capital loss of R.~. 28,662/- could be determined and carried forward in accordance with thr provisions of Section\n\n24 of the Indian Income-tax Act, 192:.t, when the provisions of section 12B of the Income-tax Act, 1922 itself were not applicable in the assessment year 1955-56.\""}}, {"text": "s. 66", "label": "PROVISION", "start_char": 7017, "end_char": 7022, "source": "regex", "metadata": {"statute": null}}, {"text": "Incometax Act, 1922", "label": "STATUTE", "start_char": 7042, "end_char": 7061, "source": "regex", "metadata": {}}, {"text": "Section\n\n24", "label": "PROVISION", "start_char": 7289, "end_char": 7300, "source": "regex", "metadata": {"linked_statute_text": "Incometax Act, 1922", "statute": "Incometax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7315, "end_char": 7329, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 12B", "label": "PROVISION", "start_char": 7362, "end_char": 7373, "source": "regex", "metadata": {"linked_statute_text": "Incometax Act, 1922", "statute": "Incometax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 7381, "end_char": 7401, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "3-9-53", "label": "DATE", "start_char": 8012, "end_char": 8018, "source": "ner", "metadata": {"in_sentence": "On 3-9-53, i.e. during the relevant previous year the assessee sold all these 1686 shares !"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 9430, "end_char": 9435, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 10164, "end_char": 10169, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 10192, "end_char": 10203, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 10356, "end_char": 10361, "source": "regex", "metadata": {"statute": null}}, {"text": "S. K. Kapoor", "label": "JUDGE", "start_char": 10363, "end_char": 10375, "source": "ner", "metadata": {"in_sentence": "the profits under Che head \"capital gains\" were not taxable, could not fall within sub-section (2A) of s. 24, S. K. Kapoor J., speaking for the Division Bench, rejected this contention in these tenns :·\n\n\"This argument overlooks the fact that the head of income chargeable to income-tax are set out in section 6."}}, {"text": "section 6", "label": "PROVISION", "start_char": 10555, "end_char": 10564, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 10716, "end_char": 10727, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 10902, "end_char": 10911, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 10957, "end_char": 10967, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6 and 12B", "label": "PROVISION", "start_char": 10978, "end_char": 10995, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 11107, "end_char": 11118, "source": "regex", "metadata": {"statute": null}}, {"text": "Capiwl Gains Tax", "label": "PETITIONER", "start_char": 11483, "end_char": 11499, "source": "ner", "metadata": {"in_sentence": "Capiwl Gains Tax for the first time was introdued by the Incomctax and Excess Profit Tax (Amendment) Act, 1947 (No."}}, {"text": "section 12B", "label": "PROVISION", "start_char": 11627, "end_char": 11638, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Finance Act, 1949", "label": "STATUTE", "start_char": 11879, "end_char": 11903, "source": "regex", "metadata": {}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 11965, "end_char": 11971, "source": "regex", "metadata": {"linked_statute_text": "The Indian Finance Act, 1949", "statute": "The Indian Finance Act, 1949"}}, {"text": "1st April, 1948", "label": "DATE", "start_char": 12010, "end_char": 12025, "source": "ner", "metadata": {"in_sentence": "The Indian Finance Act, 1949 virtually abolished the levy and restricted the operation of s. 12B to \"capital gains\" arisin9 before the 1st April, 1948."}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 12031, "end_char": 12037, "source": "regex", "metadata": {"linked_statute_text": "The Indian Finance Act, 1949", "statute": "The Indian Finance Act, 1949"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12101, "end_char": 12105, "source": "regex", "metadata": {"linked_statute_text": "The Indian Finance Act, 1949", "statute": "The Indian Finance Act, 1949"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 12141, "end_char": 12146, "source": "regex", "metadata": {"linked_statute_text": "The Indian Finance Act, 1949", "statute": "The Indian Finance Act, 1949"}}, {"text": "31st March, 1956", "label": "DATE", "start_char": 12293, "end_char": 12309, "source": "ner", "metadata": {"in_sentence": "3) Act, 1956 reintroduced the \"capital gains\" tax with effect from the 31st March, 1956."}}, {"text": "section 12B", "label": "PROVISION", "start_char": 12344, "end_char": 12355, "source": "regex", "metadata": {"linked_statute_text": "The Indian Finance Act, 1949", "statute": "The Indian Finance Act, 1949"}}, {"text": "31-3-1956", "label": "DATE", "start_char": 12585, "end_char": 12594, "source": "ner", "metadata": {"in_sentence": "The position that emerges is that \"capital gains\" arising, between 1-4-1948 and 31-3-1956, were not taxable."}}, {"text": "V. S. Desai", "label": "JUDGE", "start_char": 12672, "end_char": 12683, "source": "ner", "metadata": {"in_sentence": "Mr. V. S. Desai, learned Counsel for the appellant contends that accordir1g to the scheme of the Act a \"capital Joss\" occurring in a previous year, could be allowed to be carried forward and set off against the capital gains of a subsequent year, only if the income 'lllder that head was taxable in the relevant previous and subsequent years.", "canonical_name": "V. C. Desai"}}, {"text": "1-4-1948", "label": "DATE", "start_char": 13040, "end_char": 13048, "source": "ner", "metadata": {"in_sentence": "Since during the period from 1-4-1948 to 31-3-1956, capital gains (plu$) or capita!"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13200, "end_char": 13204, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 13215, "end_char": 13221, "source": "regex", "metadata": {"statute": null}}, {"text": "Ashok Sen", "label": "OTHER_PERSON", "start_char": 13398, "end_char": 13407, "source": "ner", "metadata": {"in_sentence": "As against this, Sbri Ashok Sen, learned Counsel for the assessee maintains that a right to carry forward a loss under any of the heads enumerated in s. 6, is."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 13526, "end_char": 13530, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 13711, "end_char": 13715, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 13794, "end_char": 13799, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 13976, "end_char": 13979, "source": "ner", "metadata": {"in_sentence": "Shri Sen compared the non-taxability of\n\ncapital gains during the: period from 1-4-1948 to 31-3-1956, to a tax holiday for those years."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 14308, "end_char": 14312, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 15202, "end_char": 15211, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 15387, "end_char": 15396, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 15556, "end_char": 15565, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 15607, "end_char": 15616, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 7, 8, 9", "label": "PROVISION", "start_char": 15896, "end_char": 15912, "source": "regex", "metadata": {"statute": null}}, {"text": "1st day of April, 1948", "label": "DATE", "start_char": 16312, "end_char": 16334, "source": "ner", "metadata": {"in_sentence": "The material part of s. I 2B at the relevant time was as follows :\n\n\"12B ,(1) The tax shall be payable by an assessee under the head \"Capital gains\" in espect of any profits or gains arising from the sale, exchange or trnnsfer of a capital asst effected after the 3 I st day of March I 946 and before the 1st day of April, 1948 and such profits and gains shall be deemed to be income of the previous yenr in which the sale, exchange or transfer took place.\" '"}}, {"text": "Section 22(1)", "label": "PROVISION", "start_char": 16549, "end_char": 16562, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Amendment Act", "label": "STATUTE", "start_char": 16903, "end_char": 16927, "source": "regex", "metadata": {}}, {"text": "1-4-1952", "label": "DATE", "start_char": 16956, "end_char": 16964, "source": "ner", "metadata": {"in_sentence": "he Income-tax Amendment Act 25 of 1953 with effect from 1-4-1952-provides:\n\ni.If any person who has not been served with a notice under sub-section (2) has sustained a loss of profits or gains in aey year under the head Profits and gains of business, profession or vocation, and such loss or any part thereof would ordinarily have been carried forward under sub-s. (2) of section 24, he shall, if he is to be entitled to the benefit of the carry forward of loss in any subsequent assssment, furnish within the time specified in the general notice given under sub-s. ( 1 ) all the particulars required under the prescribed form of return.\""}}, {"text": "section 24", "label": "PROVISION", "start_char": 17272, "end_char": 17282, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Amendment Act", "statute": "Income-tax Amendment Act"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 17560, "end_char": 17565, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Amendment Act", "statute": "Income-tax Amendment Act"}}, {"text": "section 6", "label": "PROVISION", "start_char": 17694, "end_char": 17703, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Amendment Act", "statute": "Income-tax Amendment Act"}}, {"text": "31st day of March 1940", "label": "DATE", "start_char": 18409, "end_char": 18431, "source": "ner", "metadata": {"in_sentence": "1 ) Where any assessce sustains a loss of profits or gains in any year under any of the heads mentioned ; n section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under any other head in that year :\n\n  ..\n\nProvided that in computing the profits and gains chargcabl<: under the head \"Profits and Gains of business, profession or voc, ation\", any loss sustained in speculative transaction which a1e in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions :   • ( 2) Where any asscssee sustains a Joss of profits or ga; ns in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March 1940, in any business, profession or vocation."}}, {"text": "s1", "label": "PROVISION", "start_char": 19761, "end_char": 19763, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 128", "label": "PROVISION", "start_char": 20817, "end_char": 20828, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 21338, "end_char": 21342, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 21409, "end_char": 21413, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 21510, "end_char": 21514, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4( 1)", "label": "PROVISION", "start_char": 21881, "end_char": 21889, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 22178, "end_char": 22182, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 22218, "end_char": 22224, "source": "regex", "metadata": {"statute": null}}, {"text": "s.12B", "label": "PROVISION", "start_char": 22247, "end_char": 22252, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1949", "label": "STATUTE", "start_char": 22272, "end_char": 22289, "source": "regex", "metadata": {}}, {"text": "1-4-19?7", "label": "DATE", "start_char": 22355, "end_char": 22363, "source": "ner", "metadata": {"in_sentence": "any 'capital gains' arising between 1-4-1948 to 1-4-19?7 lnJced s. 12B was not operative in these years (1948-57)."}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 22371, "end_char": 22377, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1949", "statute": "the Finance Act, 1949"}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 22546, "end_char": 22552, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1949", "statute": "the Finance Act, 1949"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 23141, "end_char": 23146, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1949", "statute": "the Finance Act, 1949"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 23524, "end_char": 23529, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 24600, "end_char": 24606, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 24898, "end_char": 24903, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 25220, "end_char": 25225, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 25509, "end_char": 25514, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_705_708_EN", "year": 1975, "text": "RANI INDER KUMAR! ETC. ETC. v.\n\nSTATE OF RAJASTHAN & ANR.\n\nFebruary 25, 1975\n\n[K. K. MATHEW, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.]\n\nRajasthar. Cash Jagirs Abolition Act, 1958-S. 3 Constitutiona/ va/idi!Y of- Delay i:: approachinR the Court-Effect of.\n\nBy s. 3 of the Rajasthan Cash Jagirs Abolition Act: 1958 all cash jagirs sanctioned to the former princes were abolished. Sub-s. (2) of s. 3 provided for payment of .cmpensation. The petitioners received compensation from 1958 to 1970. Jn 1970, however, they questioned the validity of s. 3 on the ground that it is violative of ar:icles 31 and 19( 1) ( f) of the Constitution.\n\nDi>missing the petitions.\n\nHELD : The petitioners have approached the court after inordinate de Jay and eve.11 then after enjoying the full benefit under the Act. The petitioners rnnnot be alJowed to blow hot and cold in the same breath.\n\nRight to the compensation, of wha1ever nature or content. flowed from !he abolition of the cash jagirs under the Act and acceptance. of compmJation gave .a quietus to the daim to have the Act adjudged s ultra rires.\n\nThe founda~1on of the compensation was the abolition of cash j8girs. [707G; Fl\n\nState of Madhya Pradesh v. Ranojirao Shirulc & Anr. [19681 3' S.C.R. 489, distinguished.\n\nORIGINAL JURISDICTION: Writ Petitions Nos. 610 to 614 of 1970.\n\nPetitions under Art. 32 of tlie Constitution of India.\n\nE Mohan Behari L., I, for the petitioners.\n\nL. M. Singhvi and S. M. Jain, for the respondents.\n\nfhe Judgment of the Court was delivered by\n\nC:oswAMI, J.-By the above Writ Petitions the constitutional validity of the Rajasthan Cash Jagirs Abolition Act, 1958 (Act No. 29 of 1958) is challenged as violative of the petitioners' fundamental righl:i. under articles 14, 19(1) (f) and 31 of the Constitution.\n\nThe facts of Writ Petition No. 610 of 1970 may alone be sufficient. The petitioner states that in view of the near relationship as well as in lieu of her husband's share in the parental jagir of Riri the Maharaja of Bikaner sanctioned a separate cash grant to her husband, Maharaj Chander Singh ji, of Rs. 1200/- per annum on May 23,\n\n1942. This amount was continuously paid to her husband by the State of Bikaner and was later raised to Rs. 2400/- per annum with effect from February 2, 1943. This grant of Rs. 2400/- with an addition of Rs. 600/- as pearness allowance was shared between her and her husband under the order of the Prime Minister of Bikaner State dated September '18, 1942. This payment of Rs. 1500/~ per annum was continued to be received by the petitioner through Bikaner Treasury upto the formation of the State of Rajasthan, on April 7,\n\n1949. After the death of her husband on May 6, 1951, the payment\n\nof her grant was continued. The Stat.e of Rajasthan being the. sccei\n\nsor to the former Bikaner State recognised this grant and contmued to make payment to the petitioner. It appears that after the death of her husband it was decided in December 1953 that no payment should be made to her thereafter and the regular payments received by hr after the ~':ath of l.1er husband would not be recovered. On the petir tioners representation, however, the grant was restored an? was allowed to continue till its discontinuance by the act of the legislature.\n\nAnm:xure 'C' to the petition shows the order .of the Acc:?untant General of Raja:sthan to the Treasury Officer, B1kaner, conveymg the sanction of the Governor for the continuance of the grant of Rs. 125/- per month to the petitioner from the date the same had bee.n discontinued \"till the cash jagirs are resumed\". This order is dat1d June s. 1958.\n\nThe Rajasthan Cash Jagirs Abolition Act, 1958 (briefly the Act) received the assent of the President on July 13, 1958.\n\nSection :~ (a) of the Act defines cash jagir to mean \"any grant of money by way of jagir or otherwise, made or recognised to have been\n\nnuide by tho Government in any part of the State or y the Ruler of D a convenanting State without any consideration or in lieu of jagir rei; umed or abolished otherwise than under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 ....... \"\n\nSection 3 which provides for abolition of cash jagirs reads thus :\n\n3 (I) \"Notwithstanding anything to the contrary contained in any law, sanad, c.rder, custom or usage in force in any part of the State, alJ payments of money on account of cash jagirs to which this Act applies, that wero being made or enforced at the commencement of this Act, shall be dfacontinued on and from the 1st day of April, 1958 211d all rnch cash jagirs shall stand abolished as from that day.\n\n(2) Notwithstanding such discontinuance and abolition the State Government shall continue to make payments by way of compensation in accordance with scale laid down in\n\nthe Second Schedule, and the provisions of the Rajasthan Pensions Act, 1958, shall apply to such payments\".\n\nThe Second Schedule \\Shows, inter alia, that if the monthlv rate of the grant exceeds Rs. 50/- but does not exceed Rs. 250j'. the grantee will be paid the compensation for a period of twelve years frotn the !st day of April, 1958.\n\nSetion 6 ( 2), which is also under attack, provides that \"nothing in this Act or in the rules made there-under shall affect such other grants .of oney a~ the S!ate Government may, from time to time, by n.o!Ifkat10n 1~ the Official Gazette, declare to be exempt from the prov1s1ons of this Act, and the provisions of the Rajasthan Pensions Act, 1958, shall appl•1 to such exempted grants of money\".\n\nRANI INDER KUMARI v. RAJASTHAN (Goswami J.) 707\n\nIt is coi:tended on behalf of the petitioners that section 3 of the Act is violative of articles 31 and 19(1)(£) of the Constitution and sectiolli 6(2) is violative of article 14 of the Constitution. According to the petitioners their cases are covered by a decision of this Court in State of Madhya, Pradesh v. Ranojirao Shinde & Anr.,( 1 ) where this Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963, to be violative of article 31(2) or in the alternative of article 190) (f) of the Constitution.\n\nBefore we proceed fUrther we have to state that the petitioners have an insurmountable obstacle to get over in these petitions. In Madhya Pradesh cas0 . (supra) the petitione; s therein approached the\n\nHi~ Court soon after the, promu!gation of the particular Act in 1963 and the High Court accepted their conteution that tho Act was ultra. iiru of article. 19(1) (f) of the Constitution and was not saved by sub-article (5) thereof.\n\nThe State of Madhya Pradesh appeared to thi• Court by a certificate obtain, ed from the High Ceurt under article\n\nI 33(l)(c) and this Court in the above mentioned decision dismissed the State's appeals. In the present case the petitioners took advantage of tho provisions of the Act, particularly sub-section (2) of section 3 by which payments by way of compensation were allowed .'1otwithstaadini; the abolition of the grant under sub-section (1) of section\n\n3. So far as the abolition of the cash jagirs was concerned it was complete on and from the 1st day of April, 1958 under sub-section ( l) of section 3 of the Act. The petitioners had been in enjoyment of the compensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagirs on and from 1st April, 1958, till 31st March, 1970, and approached this Court under article 32 of the Constitution on October 12, 1970, when under sub-section (2) of section 3 the compensation was discontinued.\n\nThe petitioners cannot be allowed to blow hot and cold in the sa111e breath. Right to the compensation, of whatever nature or content, flowed from the abolition of the cash jagirs underthe Act.\n\nAcceptance of the compensation under the Act for the full length of the period of twelve years completely neg1tives the scope of attack upon the abolition of the grant. The foundation of the compensation is the abolition of the cash jagirs. Section 3(2) under which the compoosation is available is integrally connected with section 3 (1) which has 11bolishecl the cash jagirs from a specified date and it is only on such abolition that compenstion is rendered possible. Acceptance of compensation, therefore, gives a quietus to the claim to have the Act adjudged as ultra vires. The petitioners cannot eat a cake and have it. At any rate the petitioners have aporoached the court after inordinate delay and even then after enjoying the full ben~-fit under the Act. The petitions, therefore, cannot be entertained.\n\nThe petitioners also contend that section 6(2) of the Act is discriminatory and is violative of the equality clause under article 14 af the Constitution. Section 6 i5 a saving provision.\n\nThe case of the-\n\n(1)(1968]3 S.C. R. 489.\n\npetitioners is that a go0d number of persons have been exempted from the operation of the abolition of the grant. It is submitted that\n\nwhllc under section 6(1) there is guidance with regard to the exemption, there is none whatsoever under section 6(2). Whatever the :merit of this submission, the petitioners are not going to be benefited by striking down section 6 (2) of the Act. Assuming it is ultra vires, section 6(2) is clearly severable from the rest of the provisions. On the other hand, depending upon:· this provision, the petitioners may be able to receive appropriate consideration from the Government to b;: included in the list of exemptees. Indeed,, Dr.\n\nSinghvi, the learned Advocate General, gave us to understand that he would himself recommend the case of three of the petitioners as deserving consid(; ration under section 6(2). We do not know whether the other two petitioners may also be able to convince the Government about the merit of thir case for equal consideration. We assume that under these provisions the Government has certain principles on whic:h it acts to give relief to the needy. It is, therefore, idle for the petitioners to have a decision from this Court to strike down a provision which may u!(im::i•cly be to their aid. We are not, therefore, inclined to pas on this submission advanced by the petitioners. In the result the petitions fail and are dismis,; ed, but in the entire circumstances of the case the parties will bear their own costs.\n\nP.B.R.\n\nPetition dismissed.\n\nD 1,", "total_entities": 65, "entities": [{"text": "RANI INDER KUMAR! ETC. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "RANI INDER KUMARI ETC. ETC", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN & ANR", "label": "RESPONDENT", "start_char": 32, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN & ANR", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 79, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 93, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 111, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Cash Jagirs Abolition Act, 1958", "label": "STATUTE", "start_char": 144, "end_char": 175, "source": "regex", "metadata": {}}, {"text": "S. 3", "label": "PROVISION", "start_char": 176, "end_char": 180, "source": "regex", "metadata": {"linked_statute_text": "Cash Jagirs Abolition Act, 1958", "statute": "Cash Jagirs Abolition Act, 1958"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 256, "end_char": 260, "source": "regex", "metadata": {"linked_statute_text": "Cash Jagirs Abolition Act, 1958", "statute": "Cash Jagirs Abolition Act, 1958"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 389, "end_char": 393, "source": "regex", "metadata": {"linked_statute_text": "Cash Jagirs Abolition Act, 1958", "statute": "Cash Jagirs Abolition Act, 1958"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 539, "end_char": 543, "source": "regex", "metadata": {"linked_statute_text": "Cash Jagirs Abolition Act, 1958", "statute": "Cash Jagirs Abolition Act, 1958"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1338, "end_char": 1345, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 1354, "end_char": 1375, "source": "regex", "metadata": {}}, {"text": "E Mohan Behari L.", "label": "LAWYER", "start_char": 1378, "end_char": 1395, "source": "ner", "metadata": {"in_sentence": "E Mohan Behari L., I, for the petitioners."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 1422, "end_char": 1435, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and S. M. Jain, for the respondents."}}, {"text": "S. M. Jain", "label": "LAWYER", "start_char": 1440, "end_char": 1450, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and S. M. Jain, for the respondents."}}, {"text": "oswAMI", "label": "JUDGE", "start_char": 1520, "end_char": 1526, "source": "ner", "metadata": {"in_sentence": "fhe Judgment of the Court was delivered by\n\nC:oswAMI, J.-By the above Writ Petitions the constitutional validity of the Rajasthan Cash Jagirs Abolition Act, 1958 (Act No."}}, {"text": "articles 14, 19(1)", "label": "PROVISION", "start_char": 1731, "end_char": 1749, "source": "regex", "metadata": {"linked_statute_text": "By the above Writ Petitions the constitutional validity of the Rajasthan Cash Jagirs Abolition Act, 1958", "statute": "By the above Writ Petitions the constitutional validity of the Rajasthan Cash Jagirs Abolition Act, 1958"}}, {"text": "Riri", "label": "OTHER_PERSON", "start_char": 1978, "end_char": 1982, "source": "ner", "metadata": {"in_sentence": "The petitioner states that in view of the near relationship as well as in lieu of her husband's share in the parental jagir of Riri the Maharaja of Bikaner sanctioned a separate cash grant to her husband, Maharaj Chander Singh ji, of Rs."}}, {"text": "Bikaner", "label": "GPE", "start_char": 1999, "end_char": 2006, "source": "ner", "metadata": {"in_sentence": "The petitioner states that in view of the near relationship as well as in lieu of her husband's share in the parental jagir of Riri the Maharaja of Bikaner sanctioned a separate cash grant to her husband, Maharaj Chander Singh ji, of Rs."}}, {"text": "Maharaj Chander Singh ji", "label": "OTHER_PERSON", "start_char": 2056, "end_char": 2080, "source": "ner", "metadata": {"in_sentence": "The petitioner states that in view of the near relationship as well as in lieu of her husband's share in the parental jagir of Riri the Maharaja of Bikaner sanctioned a separate cash grant to her husband, Maharaj Chander Singh ji, of Rs."}}, {"text": "May 23,\n\n1942", "label": "DATE", "start_char": 2109, "end_char": 2122, "source": "ner", "metadata": {"in_sentence": "1200/- per annum on May 23,\n\n1942."}}, {"text": "State of Bikaner", "label": "ORG", "start_char": 2180, "end_char": 2196, "source": "ner", "metadata": {"in_sentence": "This amount was continuously paid to her husband by the State of Bikaner and was later raised to Rs."}}, {"text": "February 2, 1943", "label": "DATE", "start_char": 2259, "end_char": 2275, "source": "ner", "metadata": {"in_sentence": "2400/- per annum with effect from February 2, 1943."}}, {"text": "State of Rajasthan", "label": "GPE", "start_char": 2610, "end_char": 2628, "source": "ner", "metadata": {"in_sentence": "1500/~ per annum was continued to be received by the petitioner through Bikaner Treasury upto the formation of the State of Rajasthan, on April 7,\n\n1949."}}, {"text": "April 7,\n\n1949", "label": "DATE", "start_char": 2633, "end_char": 2647, "source": "ner", "metadata": {"in_sentence": "1500/~ per annum was continued to be received by the petitioner through Bikaner Treasury upto the formation of the State of Rajasthan, on April 7,\n\n1949."}}, {"text": "May 6, 1951", "label": "DATE", "start_char": 2683, "end_char": 2694, "source": "ner", "metadata": {"in_sentence": "After the death of her husband on May 6, 1951, the payment\n\nof her grant was continued."}}, {"text": "s. 1958", "label": "PROVISION", "start_char": 3600, "end_char": 3607, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajasthan Cash Jagirs Abolition Act, 1958", "label": "STATUTE", "start_char": 3614, "end_char": 3655, "source": "regex", "metadata": {}}, {"text": "July 13, 1958", "label": "DATE", "start_char": 3714, "end_char": 3727, "source": "ner", "metadata": {"in_sentence": "The Rajasthan Cash Jagirs Abolition Act, 1958 (briefly the Act) received the assent of the President on July 13, 1958."}}, {"text": "Government in any part of the State or y the Rule", "label": "STATUTE", "start_char": 3879, "end_char": 3928, "source": "regex", "metadata": {}}, {"text": "Rajasthan Land Reforms and Resumption of Jagirs Act, 1952", "label": "STATUTE", "start_char": 4050, "end_char": 4107, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 4119, "end_char": 4128, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952", "statute": "the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952"}}, {"text": "1st day of April, 1958", "label": "DATE", "start_char": 4502, "end_char": 4524, "source": "ner", "metadata": {"in_sentence": "Section :~ (a) of the Act defines cash jagir to mean \"any grant of money by way of jagir or otherwise, made or recognised to have been\n\nnuide by tho Government in any part of the State or y the Ruler of D a convenanting State without any consideration or in lieu of jagir rei; umed or abolished otherwise than under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 ....... \"\n\nSection 3 which provides for abolition of cash jagirs reads thus :\n\n3 (I) \"Notwithstanding anything to the contrary contained in any law, sanad, c.rder, custom or usage in force in any part of the State, alJ payments of money on account of cash jagirs to which this Act applies, that wero being made or enforced at the commencement of this Act, shall be dfacontinued on and from the 1st day of April, 1958 211d all rnch cash jagirs shall stand abolished as from that day."}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 4765, "end_char": 4780, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952", "statute": "the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952"}}, {"text": "Rajasthan Pensions Act, 1958", "label": "STATUTE", "start_char": 4808, "end_char": 4836, "source": "regex", "metadata": {}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 4874, "end_char": 4889, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Pensions Act, 1958", "statute": "the Rajasthan Pensions Act, 1958"}}, {"text": "Rajasthan Pensions Act, 1958", "label": "STATUTE", "start_char": 5422, "end_char": 5450, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 5601, "end_char": 5610, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Pensions Act, 1958", "statute": "the Rajasthan Pensions Act, 1958"}}, {"text": "articles 31 and 19(1)(£)", "label": "PROVISION", "start_char": 5638, "end_char": 5662, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Pensions Act, 1958", "statute": "the Rajasthan Pensions Act, 1958"}}, {"text": "article 14", "label": "PROVISION", "start_char": 5718, "end_char": 5728, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Pensions Act, 1958", "statute": "the Rajasthan Pensions Act, 1958"}}, {"text": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963", "label": "STATUTE", "start_char": 5903, "end_char": 5967, "source": "regex", "metadata": {}}, {"text": "article 31(2)", "label": "PROVISION", "start_char": 5988, "end_char": 6001, "source": "regex", "metadata": {"linked_statute_text": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963", "statute": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963"}}, {"text": "article 190", "label": "PROVISION", "start_char": 6027, "end_char": 6038, "source": "regex", "metadata": {"linked_statute_text": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963", "statute": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963"}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 6197, "end_char": 6211, "source": "ner", "metadata": {"in_sentence": "In Madhya Pradesh cas0 . ("}}, {"text": "State of Madhya Pradesh", "label": "ORG", "start_char": 6504, "end_char": 6527, "source": "ner", "metadata": {"in_sentence": "The State of Madhya Pradesh appeared to thi• Court by a certificate obtain, ed from the High Ceurt under article\n\nI 33(l)(c) and this Court in the above mentioned decision dismissed the State's appeals."}}, {"text": "section 3", "label": "PROVISION", "start_char": 6816, "end_char": 6825, "source": "regex", "metadata": {"linked_statute_text": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963", "statute": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963"}}, {"text": "section\n\n3", "label": "PROVISION", "start_char": 6951, "end_char": 6961, "source": "regex", "metadata": {"linked_statute_text": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963", "statute": "Court held lhe Madhya Pradesh Aboiition of Cash Grants Act, 1963"}}, {"text": "section 3", "label": "PROVISION", "start_char": 7101, "end_char": 7110, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 7227, "end_char": 7242, "source": "regex", "metadata": {"statute": null}}, {"text": "1st April, 1958", "label": "DATE", "start_char": 7317, "end_char": 7332, "source": "ner", "metadata": {"in_sentence": "The petitioners had been in enjoyment of the compensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagirs on and from 1st April, 1958, till 31st March, 1970, and approached this Court under article 32 of the Constitution on October 12, 1970, when under sub-section (2) of section 3 the compensation was discontinued."}}, {"text": "31st March, 1970", "label": "DATE", "start_char": 7339, "end_char": 7355, "source": "ner", "metadata": {"in_sentence": "The petitioners had been in enjoyment of the compensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagirs on and from 1st April, 1958, till 31st March, 1970, and approached this Court under article 32 of the Constitution on October 12, 1970, when under sub-section (2) of section 3 the compensation was discontinued."}}, {"text": "article 32", "label": "PROVISION", "start_char": 7389, "end_char": 7399, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "October 12, 1970", "label": "DATE", "start_char": 7423, "end_char": 7439, "source": "ner", "metadata": {"in_sentence": "The petitioners had been in enjoyment of the compensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagirs on and from 1st April, 1958, till 31st March, 1970, and approached this Court under article 32 of the Constitution on October 12, 1970, when under sub-section (2) of section 3 the compensation was discontinued."}}, {"text": "section 3", "label": "PROVISION", "start_char": 7471, "end_char": 7480, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 7953, "end_char": 7965, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 8037, "end_char": 8046, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6(2)", "label": "PROVISION", "start_char": 8562, "end_char": 8574, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 8650, "end_char": 8660, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 8682, "end_char": 8691, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6(1)", "label": "PROVISION", "start_char": 8907, "end_char": 8919, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6(2)", "label": "PROVISION", "start_char": 8999, "end_char": 9011, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 9116, "end_char": 9125, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6(2)", "label": "PROVISION", "start_char": 9170, "end_char": 9182, "source": "regex", "metadata": {"statute": null}}, {"text": "Singhvi", "label": "OTHER_PERSON", "start_char": 9430, "end_char": 9437, "source": "ner", "metadata": {"in_sentence": "Indeed,, Dr.\n\nSinghvi, the learned Advocate General, gave us to understand that he would himself recommend the case of three of the petitioners as deserving consid(; ration under section 6(2)."}}, {"text": "section 6(2)", "label": "PROVISION", "start_char": 9595, "end_char": 9607, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_709_725_EN", "year": 1975, "text": "SRI KRISHNA KHANNA\n\n709'\n\nADDITIONAL DISTRICT MAGISTRATE, KANPUR AND ORS.\n\nFebruary 26, 1975.\n\n[K. K. MATHEW, P. N. BHAGWATI AND N. L. UNTWALIA, JJ.]\n\nU.P. (Temporary) Control df Rent and Eviction Act, 1947, Sections 3, 7 and 7A and Control of Rem and Eviction Rules, 1949, Rules 3, 4, 5 and 6lntimation of racancy by landlord-Allotment order made afrcr expiry af rflc\n\nri'quircd period-Allotment order, if i11valid.\n\nCompromise Decree-Compromise void, being w1/awful a11d opposed to public policy-Respo11dent. if committed fraud in ignoring void compromise while l•Pf'fyi11g for eviction of appellant.\n\nThe appellant who is the owner of the building bearing No. 24/6, Tulsa Kathi, Kanpur, lives in the upper floor of the building with his son and other members of the family.\n\nThere are two shops in the ground floor in which tenants had been inducted.\n\nOne of the shops has been in possession of Raghu. nath Prasad Mehrotra, respondent no. 3 and his brother Kanahyalal Mehrotra who have been carrying on the business of Druggists and Chemists in the said shop as partners of the firm Pioneer Drug Stores. The other shop was in the teaancy of Bata Shoe Company Ltd. Since the said Company had taken another shop on rent sometime in the year 1961 it was about to vacate the shop in the building of the appellant. He, therefore, filed an application on 7 .. J 1-1961 before the Rent Control and Eviction Officer (Rent Controller) with a copy to the District Magistrate, Kanpur under Rule 6 of the Control of Rent and Eviction Rules, 1949 framed under Section 17 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 praying for the release of the shop in his favour on the ground that he requ, ired the ao:ommodation for his own use for establishing a business for his son.\n\nOn 2-5-1962. respondent No.· 3 made an application under section 7 ( 2) of the Act for allotment of the accommodation to him. There were four more applicants under section 7(2). The shop was actually vacated by Bata Shoe Company on 15-8-1962. On 16-8-1962 intimation was given by the apPellant to the Re.nt Controller about the vacancy of the shop in accordance with section 7(1 ). The Additional District Magistrate, to whom proceedings had been transferred, made an order on 17-9-1962 refusing to release the shop to the appellant and directed its allotment to respondent No. 3. In pursuance of the orc!er made in his favour, the respondent got actual possession of the shop from the appellant who had occupied the shop fn the meantime.\n\nBefore the filing of the application by the third respondent on 2-11-1962 under section 7A of the Act, the appellant had filed on 22-9-IQ62, suit No. 132/ I 962 in the Court of First Civil Judge at Kan, pur challenbing the allotment order of the Additional District Magistrate and the Rent Controller i\\mpleading the third respondent as the sole defendant in the suit. A decree for permanent injunction was asked for.\n\nInterim injunction was granted. The suit ended in compromise on 11-10-1%2. The appellant filed an application for review on 17-11-1962 before the Rent Controller asking him to review bis e{parte order dated 15-11-1962 made under section 7A of the Act chiefly on two grounds viz. (!) that no notice was served upon the appellant; (2) that the third respondent had obtained the order fradulently by suppressing the fact of compromise entered in Suit No. 13211962. The Rent Controller refused to review his oruer and disrnissed the application on 8-1-1963. The appellant on the same date i.e. on 8-1-1963 filed a petition in the Allahabad High Court under Article 226 of the Constitution to challeng~ the various orders of allotment and delivery of possession made by 1 spondents I and 2 from time tc time.\n\nThe Writ J>etition was dismissed by a learned single Judge on 7-5-1963.\n\nSpecial Appeal No. 254/1963 was dismissed by a Bench of the Allahabad High Court on 3-2-1964.\n\nThe present appeal was preferreti in this Court on grant of certificate by the High Court.\n\nIt was contended on behalf of the appellanC that\n\n(i) The order of allotment havini not been made within 30 days of the receipt oi' the intimation sent by the landlord under s1:ction 7 (1) (a) of the Act as required by Rule 3 of the Rules was llltr11\n\nire~ and void;\n\n(ii) Respondent No. 3 had no right to apply for possession under section 7 A of the Act after having entered into a compromise in Suit No. 132/ 1962;\n\n(iii) that the order of allotment issued by the Rent Controller was bad\n\nas it was mechanically issued on the basis of the order of the Additional District Magistrate and without any application of the miad by the to rm er.\n\nDismissini the appeal,\n\nHELD : (By Court)\n\n(i) Section 3 of the Act providing for restrictions on eviction is baS<:d oil public policy. It is intended to protect the weaker section of the commwlity in gem:ral by granting equality of bargaining power. [714D; 718E]\n\nMurlidhar Agarwal and A11r. v Slate of Uttar Pradesh and Ors.; A.I.R. 1974 S.C. 1924, relied on\n\nIn Jiwa11 Singh v. Rajindra Praad & Anr., Civil Appeal No. 999(N\") of 1971 decided on 18-12-1974, this Court held that if the landlord failed to ducharge his obligation of giving 7 days' notice in accordance with !lltio• 7(1)(a), he !Olli bis right of making a nomination under Rule 4. The District Magistrate has got to i; riakc the orde~ of allotment within 30 days of the r•eccipt of the intimation sent by the landlord under 11ection 7 (1 )(a) of the Act H• has, at the same time, to give notice of bis order of allotmeni to the landlord.\n\nIf the landlord receives no notice from the District Magistrate within 30 days, which as a matt.er of construction under Rule 4 must mean shortly after th• expiry of 30 days of the receipt by the landlord under section 7(1)(a), of an order of allotment having been made within that period, he gets a right to nominate tenant. Ordinarily and generally the District Magistrate shall bav•\n\nto allot the accommodation to the nominee o_f the landlord but for special\n\nreason~ to be recorded in writing, he may depart from the nomination made by llhe landlord and allot the accommodation to some other person, even to a person who was an appiicant before him before the expiry of the period Of 30 days and due to one reason or the other no order of allotment could be made in his favour .within the said period. If, however, the landlord does not mat. a nomination in accordance with Ruic 4 he cannot challenge the order of allotment subsequently made by the District Magistrate on the expiry of . the 'ieriod of 30 days only on the ground of its having been made beyond the timr.\n\n[7150-E, F-716B; 718E-719F]\n\n(ii) In the instant caac it is not correct to say that the order of allotment made on the 17th September, 1962-two days after the expiry of the period of 30 days was invalid on that account alone. The High Court is also right in its view that no order of allotment was poMible to be made in this case before disposal of the landlord's claim under Rule, 6. There is no time limit fixed for disposal of. such a claim. Of course it should be disposed of u quicklJ as possible; preferably within the period of 30 days mentioned in Rule 3. Thaa\n\nbeing so even, in the light of Rule 6 it is difficult to nullify an order or allot- . ment made by the District Magistrate metely on the ground of havin1 been\n\nmade on the expiry of the period -0f 30 days.\n\nOn the facts of this case !lllrely the order of allotment was not invalid. [716D-E; 719F-720B]\n\n(iii) The order of allotment in this case was made by the Additional Dia trict Mastrate, respondent No. 1. It inay not be quite correct to say th11t it was purely an administrative order as has been the view of the Hilb Court in the Special Appeal. But the order was made by him in\n\n1' ll\n\ns. I:, KHANNA v. A.D.M. (UntwaUa, J.)\n\n7 I 1\n\na quasi-judicial manner after hearing the parties concerned and after fully applying his mind. He, being a delegate of the District Magistrate, waa compelftt\n\nto make order of allotment. So was the Rent Controller. But the latter morely issued the formal order made by the former. It was not a case where die authority competent to make the order mechanically did it on the directioa or in pursuance of an order of a differenr authority not competent to pa9' the order.\n\n[717G-718B; C-D]\n\n(ii) By majority (Mathew and Untwalia, JJ.)\n\nThe appellant filed Civil Suit No. 132/1962 against tire third respondent to challenge the order of allotment made in his favour by respondent Nos. 1 aad 2.\n\nNeither of the said two respondents was impleaded as a defendant in ti. suit.\n\nBut that apart, the agreement entered into between the appellant amid\n\nspondent No. 3 embodied in the compromise petition dated 11-10-1962 Wfll void under section 23 of the Contract Act as it was unlawful and against tit• public policy of the Act under the Rules.\n\nSo long as the Act and the llules continued in force the control of letting vested in the Districl. Magistrale a\"' not in the portie8, By an agreement of the kind embodied iri the compromi!e petition the parties could not curtail the wwers of the District Magistrate. n was unlawful and against the public policy of the law to do so.\n\nRespondeDt No. 3 committed no fraud in ignoring the void compromise when he applied for eviction of the appellant under section 7A of the Act and for dcliYerv of aclulll, physical possession to him.\n\n[717C-FJ\n\nPer Bhagwati, J. (dissentina)\n\nEven if the compromise was unlawful and the consent decree was oa taa\\ account void, t'he very fact of the 3rd respondent having submitted to the co•- sent deem:, declaring the order of allotment to be invalid and recognising the right of the appellant to occupy the shop for himself vi.r-a-vl.t the 3rd respoa. dent, was a highly relevant circumstance bearing on the exercise of the discretion of the District Magistrate, and it ought to have been disclosed to the District Magistrate. It is a well settled proposition of law and this propositioa\n\nshould apply equally in the field of administrative law, that when a. party approaches a tribunal for discretionary relief, he must not only come wi1Ja' clean hands but must also show the utmost good faith and disc!<* all material facts having a bearing on the exercise of discretion of the authority which are\n\nwithin bis knowledge. He cannot escape this obligation on the plea that th• other side can always, if it so chooses, appear and bring the material facts to the notice of the authority. It is an obligation of confidence which he owes to the authority and this obligation is impoeed by law in the larger interesta of administration of justice so that justice, whether dispensed by Civil court or by\n\nadminitrative authority, remains pure and unsullied. The non-disclOSUI'I of the fact of consent decree by the 3rd respondent in the application made by ltim vitiated the order of the Rent Control and Eviction Ofticer under 111Ction\n\n\"!A. [722C-723B; 72•A-EJ\n\nCiv1L APPELLATE JURISDICTION : Civil Appeal 1;0, 38 of 1968.\n\nFrom the Judgment and Decree dated the 3rd February, 1964 of the Allahabad High Court in Spl. Civil Appeal No. 254 of 1963.\n\nS. T. Desai, S. S. Bhatia, J. P. Goyal and S. M. Jain, for the 11ppellant .\n\n. f3ishan Narain, B. P. Maheshwari and Surtsh Sethi, for respondent H No. 3.\n\nThe Judgment of the Court was delivered by Untwalia,\n\nJ . . P. N. Bhagwati, J. gave a dissenting Opinion,\n\n712 sUPREME COURT REPORTS [1975] 3 s.c.R.\n\nUNTWALIA, J.-There is a building bearing no. 24/6, Tulsa Kothi, situated at Mall in the City of Kanpur, The appellant in this appeal filed by certificate of the Allahabad High Court is the owner of the said building. He lives in the upper floor of the building with his son and other members of the family. There are two shops in the ground floor in which tenants had been inducted. One of the shops has been coming in possession of Raghunath Prasad Mehrotra, respondent no. 3 and his brother Kanahyalal Mehrotra who have been carrying on the business of Druggists and Chemists in the said shop as parilners of the firm Pioneer Drug Stores. The other shop was in the tenancy of Bata Shoe Company Ltd. Since the said Company had taken another shop on rent sometimr in the year 1961 it was about to vacate the shop in the building of the appellant. He, therefore, filed an applic;;. ion on 7-11-1961 before the Rent Control and Eviction OUicer\n\n(fc, r brevity, Rent Controller) with a copy to the District Magistrate, Kanpur under Rule 6 of the Control of Rent and Eviction Rules, 1949 framed under section 17 of the U.P. (Temporary) Control of Rent and Ewction Act, 1947-herein'l\\fter called respectively the Rules and the Act praying for the release of the shop in his favour on the\n\nound that he required the accommodation for his own use for establishing a business for his son. On 2-5-1962, respondent no. 3 111adC' an application under section 7(2) of the Act for allotment' of the accommodation to him. There were four more applicants under sec:tion 7(2). The shop wa, s actually vacated by Bata Shoe Company on 15-8-1962. On 16-8-1962 intimation was given by the appellant to the Rent Controller about the vacancy of the shop in accordance with seotion 7(1). It may be stated here that the Additional District Magistrate, respondent no. 1 as also the Rent Controller, respondent no. 2 had been authorised by the District Magistrate of Kanpur to exercise\n\npowers under the Act. On 18-8-1962 Ike Rent (',, ontroller heard the matters and fixed 27-8-1962 for orders. Due to some reason he felt difficulty in dedding the 'Jlatter of the release of shop in favour of the appellant or its allotmelit to any of the five f!pplicants including respondent no. 3. In due course, the District Magistrate transferred the proceedings to the Additional District: Magistrate, respondent no. 1.\n\nAfter hearing all the parties concerned he made an order on 17-9-1962 refusing to release the shop to the appellant and directed its allotrnent to respondent no. 3 Thereupon a formal order of allotment alloting the shop accommodation to respondent no. 3 was issued by the Re1H Controller, respondent no. 2 on 18-9-1962.\n\nIt appears that the appella.nt had in the meantime occupied the shop when it was vacated by Bata Shoe Company. Respondent no. 3. l!herefore filed an application under section 7 A of the Act on 2· 11-\n\n1962, which was allowed by the Rent Controller on 15-11-1962. The order was ex-parte in absence of the appellant as he is said to have not responded to the notice issued and alle!!ed to have been served on him uuder secion 7~(1) of the Act. The shop was got vacated and act.ual possess10n delivered to respondent no. 3 with the help of the pohce force on 16-11-1962 in accordance with section 7 A(3) of ilieAd .\n\n- A\n\ns. K. KHANNA v. A.D.M. (Untwalia, J.) 713\n\nBefore the filing of the application by the third respondent on 2-11-1962 under section 7 A of the Act, the appellant had filed on 22-9-1962 Suit No. 13211962 in the Court of First Civil Judge at\n\nKanpiur challeging the allotment order of the Additional District Magistrate and the Rent Controller implementing the third respondent as the sole defendant in the suit. A decree for pel'Qlanent injunction was asked for. Interim injunction was granted. The suit ended in compromise on 11-10-1962. The terms of the compromise will have to be considered at the appropriate place in this judgment. It may also be noted here that Kanahyalal Mehrotra, brother of the third respondent, filed another suit to challenge the compromise decree dated\n\n11-10-1962 claiming that the order of allotment had been made in favour of the partnership firm and the third respondent had no right to nullify the said order by the compromise. The suit was decreed and we were informed at the Bar that an appeal from the decision of the Trial Court is pending.\n\nThe appellant filed an application for review on 17-11-1962 before the Rent Controller asking him to review his cx-parte order dated 15-11-1962 made under section 7A of the Act chiefly on two grounds viz. ( n that no notice was served upon the appellant; (2) that the third respondent had obtained the order fraudulently by suppressing the fact of compromise entered in Suit No. 13211962. The Rent Controller refu•ed to review his order and dismissed the application on 8-1-1963. The appellant on the same date i.e. on 8-1-1963 filed a petition in the Allahabad High Court under Article 226 of the Constitution to challenge the various orders of aUotment and delivery of p0ssession made by respondents 1 and 2 from time to time. The Writ Petition was' dismissed by a learned single Judge on 7-5-1963.\n\nSpecial Appeal No. 25411963 was dismissed by a Bench of the Alla habad High Court on 3-2-1964. The present appeal was pre ferred in this Court on grant of certificate by the High Court.\n\nThe appellant had urged five points before the High Court in the special appeal. Mr. S. T. Desai appearing for him in this Court pressed only 3 points for our consideration in support of this appeal. They are : (1) The order of allotment having not been made within 30 days of the receipt of the intimation sent by the landlord under section 7(1)\n\n(a) of the Act as required by:Rule 3 of the Rules was ultra vires and void; (2) Respondent no.3 had no right to apply for possession under section 7 A of the Act after having entered into a compromise in Suit No. 13211962; (3) thac the order of allotment issued by the Rent Controller was bad as it was mechanically issued on the basis of the order of the Additional District Magistrate and without any application of the mind by the former.\n\nMr. Bishan Narain, learned counsel for resrandent no. 3 submitted that the period o~ 30 days mentioned in Rule 3 was directory, or, in any view of the matter in the facts and circumstances of this case the order of allotment was not bad on that account. He further submitted that the allotment order was in favour of the partnership firm, respondent no. 3 had applied for the allotment as a partner of the firm and the compromise entered into between the appellant\n\n15-L 470 Sup.CI/75\n\nand the said respondent was not bi.nding on the firm. Moreover, it was illegal, null and void. He further argued that there was no sulJ.. :; tance i'l the third point urged on behalf of the appellant in as much , ilS the order was. really that of the Additional District Magistrate who\n\nhad made it after fully hearing tl-te parties concerned.\n\nThe High Court in appeal has expressed the view that the requirement of passing the order of allotment within the period of 30 days is directory or in any view of the matter on the facts of this ca!; e it could not be made before disposing of the appellant's application for . release of the accommodation under Rule 6. In the opinion of the High Court the compromise was a fraud on the officers empowered to act . under the Statute and was of no avail to the appellant. The order of allotment was in fact made by the Additional District Magistrate and the formality of issuing the order could be done either by him or by the Rent Cuntroller, as it was an administrative order.\n\nThe object of the Act as its Preamble indicates is to provide for continuance of powers to control the letting and the rent of residential and non-residential accommodation and too prevent the eviction of tenants therefrom. Section 3 providing for restrictions on eviction as held by one of us (Mathew, J.) delivering the judgment on behalf of this Court in the case of Murlidhar Aggarwal Another v. State of Uttar .Pradesh and others(') is based on Public Policy. It is intended, to protect the weaker section of the community in gep.eral by granting equality of bargaining power. The protection is based on public policy.\n\nSimilarly, the Scheme of the Act as per the provisions contained. in; Section 7 and 7 A and Rules 3 to 6 is to curtail the right and freedom\n\nof the landlord to a large extent in the matter of letting out of accommodation. Section 7 provides for control on letting; sub-section ( 1) of which casts a duty on the landlord to give notice in writing of the vacancy of the accommo::lation to the District Magistrate. Under subsection (2) the District Magistrate may \"by general or special order require a landlord t ,,,. r not to let to any person any accommodation which has fallen vacant or is about to fall vacant.\n\nThe provision of sub-se1; tion r'.'1 has to be read in conjunction with the relevant rules. Section 7 A empowers the J:?istrict Magi5trate to take action against the unauthorised occupants by directing their eviction and in case of necessity even with force. Proviso to sub-section (1) of Section 7A enjoins upon the District Magistrate not to pass any order of eviction if he is satisfied that there has been undue delay or it is otherwise inexpedient to do so. In order to appreciate the true purp-ort of the law contained in Section 7 of the Act it is necessary to read Rtaes\n\n3 to 6 of the Rules in full :\n\n3. \"Allotment Order-'-The District Magistrate shall make an allotment order within thirty days of the receipt of the intimation sent by the landlord under section 7 (1 )(a) of the Act and shall give notice thereof to the landlord.\n\n4. Landlord's Right to Let-If the landlord, receives no notice from the District Magistrate wthin thirty days of the\n\n(1) A.I.R. 1974 S.C. 1924.\n\ns. K. XHANNA v. A.D.M. (Untwalia, !.) 715\n\nreceipt by District Magistrate of the intimation given by landlord under section 7(l)(a), the landlord may nominate a tenant and the District Magistrate shall allot the accommodation to hiS nominee unless, for reasons to be recorded in writing, he forthwith allots the accommodation to other person.\n\n5. Liability for Rent from the date of allotment-Th,: allottee shall, unless he intimates in writing to the District Magistrate his. refusal to accept the accommodation within seven days of the receipt of the order, be liable for rent from the date of allotment.\n\n6. Occupation by landlord-When the District Malstrate is satisfied that an accommodation, which has fallen vacant or is likely to fall vacan is bona fide needed by the\n\nlandl-ord for his own personal occupation, the District Magis- trate may permit the landlord to occupy it himself.\"\n\nRecently in the case of Jiwan Singh v. Rajindra Prasad & Anr.('f, j11dgment of which was delivered by Mathew, J. on behalf of this very Bench on 18-12-197 4, it was pointed out that if the landlord failed to discharge his obligation of giving 7 days' 11otice in accordance with section 7(1)(a), he lost his right of making .a nomination under Rule\n\n4. It is to be noticed that on the failure of the District Magistrate to make an ailotment order within the period pmvided in Rule 3 the landlord gets a right to nominate a tenant. The District Magistrate under Rule 4 has got to allot the accommodation to the nominee of the landlord unless for the reasons to be recorded he allots it to somebody else.\n\nUnder certain circumstances therefore the Ditrict Magistrate is empowered to make an order of allotment even after the expiry of the period of 30 days by ignoring the nomination made by the landlord.\n\nIn such a situation and in the context of the Rules it is difficult to holdl that the period fixed for the making of an allotment order in Rule 3 is mandatory in the sense of resulting in the nullification of the order of the District Magistrate if made after the expiry of the period.\n\nWithout resorting to the well-known expressions of the requirement of the law being mandatory or directory we would rest our view on the plain readin, g of the language of the Rules. The District Maoistrate . . as we have said above, has got to make the order of allotment within 30 days of the receipt of the intimation sent bv the landlord urder section 7(1)(a) of the Act. He has, at the same time, to give notice of his order of allotment to the landlord. If the landlord receive8 no notiee from the District Magistrate within 30 days, which as a mutter of construction under Rule 4 must mean shortly after the expiry of\n\n30 days of the receipt byl the District Magistrate of the intimation )!iven by the landlord under section 7(1)(a), of an order of allotment having been made within that period, he gets a right to nominate a tenant. Ordinarily 1.ttd generally the District Magistrate shall have to allot the accommodation to the nominee of the landlord 1- 1t for special reasons to be rec;.orded in writing, he. may dep::.:: from the nomination made by the landlord and allot the accommodation to some\n\n(!) Civil Appeal No. 999 (N) of 1971.\n\nother person, even to a person who wa.s an applicant before him be- . fore the expiry of the period of 30 days and due to one reason or the other no order of allotment could be made in his favour within the\n\nsaid period. If, however, t!le landlord does not make a nomination in accordwice with Rule 4 he cannot challenge the order of allotment subsequently made by the District Magistrate on the expiry of the period of 30 days only on the ground of its having been made beyond the time.\n\nIt is no doubt true that the liability for rent of the allottee begins only from the date of allotment under Rule 5 and the landlord suffers if there is delay in the making of the allotment by the District Magistrate. The landlord may move the legal machinery for forcing the District Magistrate to make the allotment. Jt may well be that in some case the order of allotment made after undue delay will be found to be bad. In the instant case it is not correct to say that the order of aliotment made on the 17th September, 1962-two days after the expiry of' the period of 30 days was invalid on that account alone. The High\n\nCourt is also right in its view that no order of allotment was possible to be made in this case before disposal of the landlord's claim under Rule 6. There is no time limit fixed for disposal such a claim.\n\nOf course it should be disposed of as quickly as possible, preferably withiti the period of 30 days mentioned in Rule 3. That being so even in the light of Rule 6 it is difficult tQ nullify an order of allotment made by the District Magistrate merely on the ground of having been made on the expiry of the period of 30 days. On the facts of this case surdy the order of allotment was not invalid.\n\nThe appellant filed Civil Suit No. 13211962 against the third respondent to challenge the order Qf allotment made in his favour by respondent nos. l ancl 2. Neither of the said two respondents was impleaded as a defendant in the suit. But that apart, the agreement entered into between the appellant and respondent no. 3 embodied in the compromise petition dated 11-10-1962 was void under section 23 of thie Contract Act as it was unlawful and against the Public Policy o~ the Act under the Rules. The four terms of the compromise are as onder\n\n(a) \"That it is admitted by the defendant that at the expiry of 30 days from the date of intimation the shop in dispute automatically stood released t~ the plaintiff and the allotment order dated 18th Sevtember, 1962 was not at al! effective vis-a-vis the rights of the plaintiff as a landlord to use the said premises.\n\n(b) That the defandant has no objection if the plaintiff\n\ncontinues to utilize the accommodations for his. own\n\nbusirnss or a business of his son whether himself or in partnership with any person and till such time as the plaintiff and his son utilize the accommodation in this manner, the defendant will not be entitled to enforce his allotment order against him.\n\ns. K. KHANNA v. A.D.M. (Untwalia, J.) 717\n\n(c) That the plaintiff has agreed that if at any time he wants to discontinue the business established by him in the said shop and wants to let out the shop to any person, he will do so in favour of the defendant and unless he refuses to take the lease on reasonable terms, the plaintiff will not let out the shop to any third party. ( d) That the shop is already in possession or the plaintiff and the defendant will not be entitled to take any steps till the landlord himself desires to let out the shop to the defendant.\"\n\nBy clause (a) the parties agreed to the statement of the law which in our judgment was not sound and correct. It will be hazardous to permit a landlord and a tenant to agree to such a position of law.\n\nIt was not open to respondent no. 3 to permit the appellant to utilize the accommodation for his own business or business of his son as was done under clause (b). Nor was it open t'o the appellant to agn:e to let out the shop, if in future he let it out to anybody, after giving first preference to the third respondent as was agreed to be done under clause (c).\n\nSo long the Act and the Rules continued in force the contml of letting vested in the District Magistrate and not in the parties. By an agreement of the kind emobodied in the compromise petition the parties could not curtail the powers of the District Magistrate.\n\nIt was unlawful and against the public policy of the Jaw to do so.\n\nThe Public Policy behind the Act and the Rules is to vest lhe control o~ letting in the District Magistrate for the benefit of the general public or to be more precise such members thereof who were in need of accommodation on rent.\n\nIn our opinion, therefore, respondent no. 3 committed no fraud in ignoring the void compromise when he applied for eviction of the appellant under section 7 A of the Act and for delivery of actual, physical possession to him.\n\nWe do not accept the alternative argument put furward by Mr. Bishen Narain as correct in respect of the compromise. It was not bad for the rtason of having been entered into by respondent no. 3 . alone.\n\nAfter perusing the application for allotment made by respondent no. 3, the order of allotment made by respondent no. 1 and the order made by respondent no. 2 under section 74(3) of the Act, we have come to the conclusion that the allottee of the accommodation in question was respondent no. 3 although he may have taken it for the purpose of extending his business of Chemists and Druggists run in' partnership with his brother.\n\nThe third submission made on behalf of the appellant has no force and must also be rejected. The order of allotment in this case was made by the Additional District Magistrate, respondent no. 1.\n\nIt may not be quite correct to say that it was purely an administrative order as has been the view of the High Court in the Special Appeal.\n\nBut the order was made by him in a quasi-judicial manner after hearing the parties concerned and after fully applying his mind.\n\nHe, being a delegate of the District Magistrate, was competent to make the order of allotment.\n\nSo was the Rent Controller. But the latter\n\nmerely issued the formal order made by the former. It was not a c:ase where the authority competent to make the order mei.:hanic:ally did it on the direction or in pursuance of an order of a different authority not competent to pass rhe order.\n\nIn our judgment, therefore, the order of allotment allotting the accommodation to responde:nt no. 3 was not bad. 'Nor had the order made by the Rent Controller under section 7 A of the Act any infirmity.\n\nIn the result the appeal fails and is dismissed..\n\nNo orders a:; to cost.\n\nBHAGWATI, J.-1 have had the advantage of reading the judgment of brother Untwalia, J. Hi:.; has discussed the three contentions urged by Mr. S. T. Desai on behalf of the appellant and rejected them.\n\nWhilst agreeing with the view taken by him in regard to the first and the third contentions, I find myself unable to subscribe to the view taken by him in regard to the .second contention.\n\nI shall immediately proceed to give my reasons why I take a diITcrent view as regards the s.econd contention, but before I do so, I would like to add a few words in reference to the first contention.\n\nThe Act with which we are concerned in this appeal is the United Provinces (Temporary) Control of Rent and Eviction Act, 1947.\n\nThe object of this Act, as may be gathered from its preamble, i~. tJ provide for conl.:inuance of powers to control the letting and the rent of residential and non-residential accommodation and to prevent the eviction of tenants irom such accommodation.\n\nSection 7, which is the material section, enacts various provisions relating to control on le:tting.\n\nIt consists of four sub-sections, but of them only twc are material.\n\nSub-s. l(a) requires the landlord to give notice of vaca:ncy to the Distrkt Magistrate within seven da:ys after the accommodation becomes vacant by his ceasing to occupy it or by the tenant vacating it or otherwise ceasing to occupy it or by termination of tenancy or by release from requisition or in any other manner whatsoever. A similar obligation is laid on the tenant vacating the accommodation under sub-s. l(b).\n\nSub-s. (2) then proceeds to say that the :District Magistrate may by general or special order require a landlord to Jet or not to let to any person any accommodation . which is or has fallen vacant or is about to fall vacant. It may be noted that the power conferred on the District Magistrate under sub-section\n\n(2) is absolute in tel'l11s.\n\nThe vacant accommodation is placed completely under the control of the District Magistrate and he may require the landlord to let the accommodation to any person nominated by him or he may even make .a negative order that the landlord shall not let the accommodation to a par!icular person.\n\nMorco\\er, this power may be exercised by the District Magistrate at any time. There is no provision in the statute requiring the District Magistrate to exercise this power within a particular time limit.\n\nThe question is whether there is anything in the Rules which imposes any such limitation ODI the District Magistrate ? Rule 3 provides that the Distdct\n\ns. K. KHANNA v. A.D.M. (Bhagwati, !.) 719\n\nMagistrate shall make an allotment order within thirty days of the receipt of the intimafron sent by the landlord under s. 7(1)(aj and shall give notice thereof to the landlord.\n\nThis Rule obviously contemplates that the District Magistrate must make an order requiring the landlord to let the accommodation to a specified person within thirty days of the receipt of the intimafron of vacancy from the landlord. But does it also carry with it by necessary implication a negative prohibition that if the District Magistrate does not make such an order within the stipulated time, he shall be precluded from making such order thereafter.\n\nWe do not think so.\n\nThe only consequence of the District Magistrate not making anorder of allotment within the period o~ thirty days is that set out in Rule 4.\n\nIt confers. a right on the landlord to nominate a tenant and where the landlonl makes such a nomination, the District Magistrate is bound to allot the accommodation to such n'ilminee \"unless for reasons to be recorded in writing he forthwith allots the accommodation to other persons\".\n\nIt is significant to note that Rule 4 does not provide that if the District Magistrate fails to make an order cf alh; tment within the period of . thirty dys, the landlord may occupy the accommodation himself.\n\nThe only right which enutes to the landlord in', such a case is to nomiillate a tenant.\n\nThis he may do or may not do depending on his volition.\n\nBut he does not get a right to occupy the accommodation for himself. Moreover, even where the landlord nominates a tenant, the District Magistrate may, for reasons to be recorded in \\vriting. disregard such nomination and allot the accommodation to another person notwithstanding the expiJiation of the period of thirty days.\n\nIt would, therefore, be seen that the time limit of thirty days is not intended to operate as a fetter on the right of the District Magistrate to make an order of allotment in the sense that he cannot thereafter make such an order.\n\nThe only reason why the period 'Of thirty days is provided is that thereaf1ter the landlord gets a right to nominate a tenar.t, thou!!h even this right can be displaced by the District Magistrate in a proper case.\n\nBut if for some reason, the landlord does not exercise this right and nominate a tenant, the power of the District Magistrate to make an order of allotment conferred under s. 7(1)(-a)\n\ni&. not affected.\n\nThere is nothing in the Rules which says tlii; t the landlord shall be entitled to occupy the accommodation himself or that the District Magistrate shall be precluded from making an order of allotment , after the expiration of the period of thirty days. Rule 4 in fact indi.::ates to the contrary.\n\nAnd so also does Ruic 6. That rule provides that if the landlord want.s the accommodation bona fide for his own personal occupation, he must obtain permission of the District Magistrate to occupy it himself.\n\nThis provision also suggests that the landlord does not become entitled to occupy the accommodation himself on the expiration of the period 0£ thirty days, but he can do so only if the necessary permi$sion is granted by the District Magilrate. If is, therefore, clear, on a con; spectus of the provisions contained in s. 7, sub-ss. (1) and (2) Rules 3, 4 and 6, that even if an order of allotment is not made bv the District Magistrate within the period of thirty days, the landlord does not become entitled to occupy the accommodation himself in defeasance of the power of the District Magistrate to make an order of allotment and the District Magistrate can, notwithstanding the expiration f the period f thirty days, make an order of allotment under s,. 7.(lJ(a). . The va~1dity of the order of allotment made by the D1stnct Magistrate. m favour of the third respondent could not, there£ore, be assailed on the ground that it was made after the expiration of thirty days from the receipt of intimation of vacancy from the appellant.\n\nI would now turn to examine the third contention on which I find myself in disagreement with my learned brother Untwaiia, J.\n\nThe facts which bear on this contention are fully set out in the judgment •of my learned brother Untwalia, J. and I need not reiterate them. It would be enough for my purpose to state that Civil Suit No. 132 of 1962 was filed by the appellant against the 3rd respondent in the Court of the First Civil Judge, Kanpur challenging the validity of the order of allotment made by the District Magistrate in favour of the 3rd respondent. Immediately on filing the suit, the appellant obtained an injunction restraining the 3rd respondent from taking any steps to enforce the order of allotment or to interfere with the possession of the appellant in respect of the shop.\n\nThe result was that the 3rd respondent was prevented from obtaining possession of the shop from the appellant and he could ll'Ot even move the District Magistrate for evicting the appellant and handing over possession of the shop to him. The 3rd respondent, therefore, within a few days after the suit was filed and the mjunction was obtained, entered into a compromise with the appellant for settlement of the suit and the terms of this compromise were as follows :\n\n\"(a) That it is admitted by the defendant that at the expiry of 30 days from the date of intimation, the shop in dispute automatically stood released to the plaintiff .and the allotment order dated 18th September, 1962 was not at all effective vi.s-a-vis the rights of' the plaintiff as a landlord to use the said premises.\n\n(b) T!:Jat the defen.dant has no objection if the plaintiff continues to utilize the accommodations for his own business or a business of his son whether himself or in partnership with any person and till such time as the plaintiff and his son utilize the accommodati'Jn in this manner, th; defendant will not be entitled to . enforce his allotment qrder against him.\n\n(c) That the plaintiff has agreed that if at any time he wants to discontinue the busim; ss established by him in the said shop and wants to let out the shop to any person, he will do so in favour of the defendant and unless he refuses to take the lease on reasonable terms, the plaintiff will not let out the shop to any third party.\n\n(d) That the shop is already in possession of the plaintiff\n\nand the defendant will not be entitled to take any steps till the landlord himself desires to let out the:\n\nshop to the defendant.\"\n\ns. K. KHANNA v. A.D.M. (Bhagwati, J.) 721\n\nThe learned Civil Judge presumably on the view that the compromise between. the partie~ was lawful, passed a decree in terms of the compromise on 11th October, 1962 under Order XXIII, rule 3 of' the Code of Civil Procedure. One consequence of thjs consent decr_ee was that the injunction against the 3rd respondent. came to an end. The 3rd respondent, thus freed from the inhibitory mandate of the injunction, immediately proceeded to make an application to the Rent Control and Eviction Officer on 2nd November, 1962 under s. 7 A fur an order directing the. appellant to vacate the shop on the ground that he was in occupation of, it in contravention of the order of allotment made in favour of the 3rd respondent.\n\nThe application was in effect and substance one for enforcement of the order of allotment under s. 7 A.\n\nNow, under the consent decree the order of allotment was declared void and ineffective and the right of the appellant to use the shop for his personal occupation was recognized vis-a-vis the 3rd respondent, but the 3rd respondent did not disclose this fact in the application, nor did he make any reference in it to the consent decree. There was a di9pute between the parties in regard to the service of the notice of the application on the appellant, but it was found by the Rent Control and Eviction Officer, as also by the High Court in the writ petition, out of which the present appeal has arisen, that the appellant refused to accept the notice of the application and hence we must proceed on the basis that the notice of the application was duly served on the appellant.\n\nThe appellant did not appear at the hearing of the application and proceeding ex parte, the Rent Control and Eviction Officer passed an order dated 15th November, 1962 directing that the appel!ant be evicted from the shop and the 3rd respondent be put in possession of the same.\n\nThough this order was not contemplated to be executed before 18th Nomber, 1962, the appellant was forcibly evicted from the shop in pursuance of the order on 16th November, 1962 and possession of the shop was immediately on the same day handed over to the 3rd respondent.\n\nThe appellant applied for a review of the order to the Rent Control and Eviction Officer but the application for review was rejected on 8th January, 1963.\n\nThis led to the filing of the .writ petition out of which the present appeal has arisen before us.\n\nThe principal question which arises for consideration on these facts is as to whether the order passed by the Rent Control and Eviction Officer under s. '7 A was vitiated by reason of non-disclosure of the fact of. consent decree by the 3rd respondent in the application made by him.\n\nIt would be convenient at this stage to refor to the relevant provisions of s. 7 A under which the application was made by the 3rd respondent.\n\nSection 7 A was introduced in the Act at a later point of time in order to ann the District Magistrate with the power to enforce the order of allotment made by him~ Sub-s. (1) of that section provided inter alia that \"where an order requiring any accommodation to be let or riot t\\) be let has been duly passed under sub-section (2~ of section 7 and the District Magistrate believes or has reason to beheve, that any peron has in contravention of the said order, occupied the said accommodation or anv pa1t thereof he may call upon the person in occupation to show cause, withi~\n\na time to be fixed by him, why he should not be evicted therefrom .. \"\n\nThere is a proviso to this sub-section which is very m.aterial a.nd . it says that \"n, o order under this section shall be passed 1f t?e. D1stnct Magistrate is satisfied that there has been undue delay or 1t is otherwise inexpedient to do so.\" Therefore, it is not in every case where a person is in occupation ofl accommodation in contravention of an order of allotment that the District Magistrate is required to maKe an order evicting such person and putting the allottee in possession of the accommodation.\n\nTite District Magistrate has a discretion in the matter and if he finds that there has been undue delay on the part of the allottee or that 0n the facts and circumstances_ it is inexpedient to make such a, n order, he may decline to do so. It must, therefore, follow a f ortiorari that all the facts and circumstances bearing on the exercise oB his discretion should be before the District Magistrate in order to enable him to exercise his discretion in a just and proper manner. Now, in the present case, there can be no doubt that the fact rof consent decree having been obtained by the parties in the\n\nsuit was a very material fact which could have considerable bearing on the question whether it was inexpedient to make an order under s. 7A.\n\nThe 3rd respondent having himself agreed with the appellant and obtained consent decree in the suit, that the order of cllotment in his favour was void and ineffective and the appellant could occupy the shop for himself, there can be no doubt that this piece of conduct, unless satisfactorily explained, was bound to have its impact on the exercise of discretion by the District Magistrate. The District Magistrate woultl certainly ask imself : \"why should I exercise my discretion in favoUr of a person who has himself conceded in the consent decree obtained from the Civil Court that the order of allotme:nt in . his favour is invalid and he has no objection to landlord occupying the accommodation ?\" Such conduct on the part of the 3rd respondent could be: inspired only by one of two reasons. It may be. that the 3rd respondent submitted to the consent decree because the wanted to get rid of the ittjunction issued against him by the Civil Court. So long as the injunction stood, he could not obtain possession eve.n by moving the District Magistrate under s. 7A. He, therefore, resorlld to this device for the purpose of getting the injunction out of his way, so that thereafter he could make an application to the District Magistrate under s. 7 A suppressing the fact of the consent decree and take a chance of obtaining an order of eviction under that section. Or, it is possible that at some poin, t of time subsequent to the p_assing of the consent decree, the 3rd respondent was advised that the consent decree was void and inoperative and it did not preclude him from makin~ n application to the Ditrict Magistrate and obtaining an order of ev1ct10n under s. 7A.\n\nIn either case, he ought to have disclosed the fact of the consent decree in the application made by him under s. 7A. If he thaught that the consent decree was valid, then obviously non-?isclosure of it by him in the application made to the District Magistrate was fraudulent, for it is difficult to see how he could have\n\npossibly persuaded himself to believe that, notwithstanding the consent decree, he could make such an application.\n\nThe inference in that case would be irresistible that he submitted to the consent decree for\n\ns. K. KHANNA v. A.D.M. (Bhagwati, /.) 723\n\nthe purpose of getting rid of the injunction, so that he could thereafter obtain an order of eviction from the District Magistrate by keeping back the fact of the consent decree from him. But even if I take a charitable view of the conduct of the 3rd respondent and assume that after the passing of the consent decree, he was advised that the consent decree was null and void, I cannot exonerate him from blameworthiness in not disclosing the fact of the consent decree in the application made by him to the District Magistrate. I do not think that it is open to a party against whom a decree has been passed by a court of law, whether by consent or in invitum, to arrogate to himself the right of adjudging that the decree is a nullity and to disregard or to disobey it on that hypothesis. It is true that a consent decree is based on an agreement between the parties and, as pointed out in Wentworth v. Bullen,(1) \"the contract of the parties is not the less a contract, an, d subject to the incidents of a contract, bec:rnse there is superadded the command of the Judge.\" It would, therefore. seem to be incontrovertible that a consent decree can be avoided or declared void on the same grounds as a contract.\n\nIf tthe compromise on which the consent decree is based is induced by fraud, mistake, undue in, fiuence or any other ground which would avoid a contract, the consent decree would be liable to be set asic!e but that would have to be done by the aggrieved party by filing a suit.\n\nSo Jong as the consent decree is not set aside in such suit, it would be binding on the parties as such as a decree in invitum and it would npt be open to either party to disregard or disobey it.\n\nSimilarly, if the compromise is unlawful, Order XXIII, rule 3 prohibits the court from passing a decree in accordance with' it and even if such decree is passed because neither party raises an objection, it would be void.\n\nBut the question is : can a party to a litigation be permitted to decide for himself that the consent decree is void and on' that view ignore it altogether as if it did not exist ?\n\nI do not think so.\n\nWhether the compromise is unlawful so as to render the consent decfee void must be left to the determination of the\n\nappropriate authority b'efore whom the question may arise and it F .cannot be allowed to be determined by a party himself according to his personal judgment.\n\nSuch a question may raise difficult and complex issues.\n\nIt is not always easy to determine whether an agreement is unlawful as being opposed to public policy or contrary to Jaw.\n\nThe decision of such issues requires a certain amount of legal training and skill and o'6jectivity of approach and these are\n\nmatters \"hardly fit for final determination by the self-interest of a\n\nparty\".\n\nThey must be left to the judgment of the appropriate authority \"and not the personal iudgment of one of the parties\".\n\nThat is both a postulate and a requirement of the democratic form of government.\n\nJt was pointed out by Frankfurter, J., in United States v. United Mine Workers of America(2 ) : \"No one, no matter how exalted his oublic office or how righteous his private motive, can be iudg:e in his own case.\" Otherwise society will be ruled not bv law but by brute power. \"If one man can be allowed to determine for himself what is law, every man can. ?'hat means first chaos,\n\n(I) (1829) 9 B & C 1840 N.\n\n(2) 330 U.S. 258; 91 Law. Ed. 884.\n\n.then tyranny.\" Legal process is an essential part of the democratic process. Therefore, to my min, d, there can be no doubt that if the 3rd respondent was of the view that the compromise was unlawful and the consent decree was on that account void, he should have taken appropriat~ proceedings in the civil court and got the consent decree declared void before making an application to the District Magistrate unlder s. 7 A, or at the least, disclosed the fact of the consent decree to the. District Magistrate in his application under s. 7 A and pointed out to the District Magistrate that the consent decree was void on the ground that the compromise was against public policy or contrary to the Act and did not, therefore, preclude the third respondent from making an application for enforcement of the order of allotment nor did it stand in the way of the District Magistrate in making an order of eviction in favour of the 3rd respondent. The District Magistrate could not be asked to enforce the order of allotment in favour of the 3rd respondent unless the consent decree, holding the order of allotment to be invalid, was first found to be\n\nvoid, because, if it was valid, it would be binding on the 3rd respondent and he could not, in that event, seek the order of eviction in his favour.\n\nThis was, therefore, a material fact which ought to have been disclosed by the 3rd respondent in the application made by him under s. 7 A.\n\nBut on 'this ground alone I would not be inclined to quash and set aside the order made by the Rent Control\n\na11d Eviction Officer as delegate of the District Magistrate under s. 7 A because, as pointed out by my learned brother Untwalia, J., in his judgment, and there I agree with him, that the consent decree was void by reason of the compromise being against the public policy of the Jaw and hence there would be no point in interfering with the order of the Rent Control and Eviction Officer on this ground.\n\nThere is, however, one other aspect of this question which requires consideration. It cannot be seriously disputed, and I have already reiferred to the aspect a little earlier, that the District Magistrate had\n\na discretion under s. 7 A not to enforce an order of allotment, if he thought that, en the facts and circumstances of the case, it was inexpedient to do so. Even if the compromise was unlawful and the consent decree was on that account void, the very fact of .the 3rd respon• dent having submitted to the consent decree, declaring the order of allotment to be invalid and recognising the right of the appellant to occupy the shop for himself vis-a-vis the 3rd respondent, was a highly relevant circumstance bearing on the exercise of the discretion of the District Magistrate, and it ought to have been disclosed to the District Magistrate. It is a well settleU proposition of law and this proposition should apply equally in the field of administrative law, that when a party approaches a tribunal for discretionary relief, he must not only come with clean hands but must also show the utmost good faith disclose all material facts having a hearing on the exercise of discretion of the authority which are within his knowledge. He cannot escape this obligation on the plea that the other side can always, if it so chooses, apper and bring the material facts to the notice of the\n\n. ,\n\ns. K. KHANNA v. A.D.M. (Bhagwati, !.) 725\n\n!authoriiy. It is an obligation of confidence which he owes to the authority and this obligation is imposed by law in the larger interests of administration of justice so that justice, whether dispensed by civil court or by administrative authority, remains pure and unsullied.\n\nI am, therefore, of the Opinion that the non-disclosure of the fact of consent decree by the 3rd respondent in the application made by him vitiated the order of the Rent Control and Eviction Officer under s. 7A\n\nI would, therefore, allow the appeal and quash and set aside the order made by the Rent Control and Eviction Officer as delegate of the District Magistrate under s. 7 A and direct the 3rd respondent to hand over possession of the shop to the appellant. It would be open to the District Magistrate to take such action under s. 7, sus. (2) as he thinks fit including making of an order of allotment in favour of any person he thinks proper.\n\nThe District Magistrate may even, if he so thinks fit, make a fresh order of allotment in favour of the 3rd respondent. Each party will bear and pay his own costs of this litigation.\n\nORDER\n\nIn view of the majority judgment the Appeal is dismissed with no order as to costs.\n\nV.M.K .", "total_entities": 135, "entities": [{"text": "SRI KRISHNA KHANNA", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "SRI KRISHNA KHANNA", "offset_not_found": false}}, {"text": "ADDITIONAL DISTRICT MAGISTRATE, KANPUR AND ORS", "label": "RESPONDENT", "start_char": 26, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "ADDITIONAL DISTRICT MAGISTRATE, KANPUR AND ORS", "offset_not_found": false}}, {"text": "February 26, 1975", "label": "DATE", "start_char": 75, "end_char": 92, "source": "ner", "metadata": {"in_sentence": "February 26, 1975."}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 96, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 110, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "P. N. BHAGWATI", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 129, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Control df Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 168, "end_char": 206, "source": "regex", "metadata": {}}, {"text": "Sections 3, 7 and 7A", "label": "PROVISION", "start_char": 208, "end_char": 228, "source": "regex", "metadata": {"linked_statute_text": "Control df Rent and Eviction Act, 1947", "statute": "Control df Rent and Eviction Act, 1947"}}, {"text": "Control of Rem and Eviction Rules, 1949", "label": "STATUTE", "start_char": 233, "end_char": 272, "source": "regex", "metadata": {}}, {"text": "Kanahyalal Mehrotra", "label": "RESPONDENT", "start_char": 960, "end_char": 979, "source": "ner", "metadata": {"in_sentence": "3 and his brother Kanahyalal Mehrotra who have been carrying on the business of Druggists and Chemists in the said shop as partners of the firm Pioneer Drug Stores.", "canonical_name": "Kanahyalal Mehrotra"}}, {"text": "Pioneer Drug Stores", "label": "ORG", "start_char": 1086, "end_char": 1105, "source": "ner", "metadata": {"in_sentence": "3 and his brother Kanahyalal Mehrotra who have been carrying on the business of Druggists and Chemists in the said shop as partners of the firm Pioneer Drug Stores."}}, {"text": "Bata Shoe Company Ltd.", "label": "ORG", "start_char": 1144, "end_char": 1166, "source": "ner", "metadata": {"in_sentence": "The other shop was in the teaancy of Bata Shoe Company Ltd. Since the said Company had taken another shop on rent sometime in the year 1961 it was about to vacate the shop in the building of the appellant."}}, {"text": "7 .. J 1-1961", "label": "DATE", "start_char": 1352, "end_char": 1365, "source": "ner", "metadata": {"in_sentence": "He, therefore, filed an application on 7 .. J 1-1961 before the Rent Control and Eviction Officer (Rent Controller) with a copy to the District Magistrate, Kanpur under Rule 6 of the Control of Rent and Eviction Rules, 1949 framed under Section 17 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 praying for the release of the shop in his favour on the ground that he requ, ired the ao:ommodation for his own use for establishing a business for his son."}}, {"text": "District Magistrate, Kanpur", "label": "COURT", "start_char": 1448, "end_char": 1475, "source": "ner", "metadata": {"in_sentence": "He, therefore, filed an application on 7 .. J 1-1961 before the Rent Control and Eviction Officer (Rent Controller) with a copy to the District Magistrate, Kanpur under Rule 6 of the Control of Rent and Eviction Rules, 1949 framed under Section 17 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 praying for the release of the shop in his favour on the ground that he requ, ired the ao:ommodation for his own use for establishing a business for his son."}}, {"text": "Control of Rent and Eviction Rules, 1949", "label": "STATUTE", "start_char": 1496, "end_char": 1536, "source": "regex", "metadata": {}}, {"text": "Section 17", "label": "PROVISION", "start_char": 1550, "end_char": 1560, "source": "regex", "metadata": {"linked_statute_text": "the Control of Rent and Eviction Rules, 1949", "statute": "the Control of Rent and Eviction Rules, 1949"}}, {"text": "Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 1585, "end_char": 1623, "source": "regex", "metadata": {}}, {"text": "2-5-1962", "label": "DATE", "start_char": 1786, "end_char": 1794, "source": "ner", "metadata": {"in_sentence": "On 2-5-1962."}}, {"text": "section 7", "label": "PROVISION", "start_char": 1840, "end_char": 1849, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "section 7(2)", "label": "PROVISION", "start_char": 1947, "end_char": 1959, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "Bata Shoe Company", "label": "ORG", "start_char": 1994, "end_char": 2011, "source": "ner", "metadata": {"in_sentence": "The shop was actually vacated by Bata Shoe Company on 15-8-1962."}}, {"text": "15-8-1962", "label": "DATE", "start_char": 2015, "end_char": 2024, "source": "ner", "metadata": {"in_sentence": "The shop was actually vacated by Bata Shoe Company on 15-8-1962."}}, {"text": "16-8-1962", "label": "DATE", "start_char": 2029, "end_char": 2038, "source": "ner", "metadata": {"in_sentence": "On 16-8-1962 intimation was given by the apPellant to the Re.nt Controller about the vacancy of the shop in accordance with section 7(1 )."}}, {"text": "section 7(1 )", "label": "PROVISION", "start_char": 2150, "end_char": 2163, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "17-9-1962", "label": "DATE", "start_char": 2260, "end_char": 2269, "source": "ner", "metadata": {"in_sentence": "The Additional District Magistrate, to whom proceedings had been transferred, made an order on 17-9-1962 refusing to release the shop to the appellant and directed its allotment to respondent No."}}, {"text": "2-11-1962", "label": "DATE", "start_char": 2587, "end_char": 2596, "source": "ner", "metadata": {"in_sentence": "Before the filing of the application by the third respondent on 2-11-1962 under section 7A of the Act, the appellant had filed on 22-9-IQ62, suit No."}}, {"text": "section 7A", "label": "PROVISION", "start_char": 2603, "end_char": 2613, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "22-9-IQ62", "label": "DATE", "start_char": 2653, "end_char": 2662, "source": "ner", "metadata": {"in_sentence": "Before the filing of the application by the third respondent on 2-11-1962 under section 7A of the Act, the appellant had filed on 22-9-IQ62, suit No."}}, {"text": "First Civil Judge at Kan", "label": "COURT", "start_char": 2700, "end_char": 2724, "source": "ner", "metadata": {"in_sentence": "132/ I 962 in the Court of First Civil Judge at Kan, pur challenbing the allotment order of the Additional District Magistrate and the Rent Controller i\\mpleading the third respondent as the sole defendant in the suit."}}, {"text": "11-10-1%2", "label": "DATE", "start_char": 3006, "end_char": 3015, "source": "ner", "metadata": {"in_sentence": "The suit ended in compromise on 11-10-1%2."}}, {"text": "17-11-1962", "label": "DATE", "start_char": 3066, "end_char": 3076, "source": "ner", "metadata": {"in_sentence": "The appellant filed an application for review on 17-11-1962 before the Rent Controller asking him to review bis e{parte order dated 15-11-1962 made under section 7A of the Act chiefly on two grounds viz. (!)"}}, {"text": "15-11-1962", "label": "DATE", "start_char": 3149, "end_char": 3159, "source": "ner", "metadata": {"in_sentence": "The appellant filed an application for review on 17-11-1962 before the Rent Controller asking him to review bis e{parte order dated 15-11-1962 made under section 7A of the Act chiefly on two grounds viz. (!)"}}, {"text": "section 7A", "label": "PROVISION", "start_char": 3171, "end_char": 3181, "source": "regex", "metadata": {"statute": null}}, {"text": "8-1-1963", "label": "DATE", "start_char": 3486, "end_char": 3494, "source": "ner", "metadata": {"in_sentence": "The Rent Controller refused to review his oruer and disrnissed the application on 8-1-1963."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3568, "end_char": 3588, "source": "ner", "metadata": {"in_sentence": "The appellant on the same date i.e. on 8-1-1963 filed a petition in the Allahabad High Court under Article 226 of the Constitution to challeng~ the various orders of allotment and delivery of possession made by 1 spondents I and 2 from time tc time."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 3595, "end_char": 3606, "source": "regex", "metadata": {"statute": null}}, {"text": "-5-1963", "label": "DATE", "start_char": 3810, "end_char": 3817, "source": "ner", "metadata": {"in_sentence": "The Writ J>etition was dismissed by a learned single Judge on 7-5-1963."}}, {"text": "3-2-1964", "label": "DATE", "start_char": 3904, "end_char": 3912, "source": "ner", "metadata": {"in_sentence": "254/1963 was dismissed by a Bench of the Allahabad High Court on 3-2-1964."}}, {"text": "s1", "label": "PROVISION", "start_char": 4181, "end_char": 4183, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 4340, "end_char": 4349, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 4698, "end_char": 4707, "source": "regex", "metadata": {"statute": null}}, {"text": "18-12-1974", "label": "DATE", "start_char": 5099, "end_char": 5109, "source": "ner", "metadata": {"in_sentence": "999(N\") of 1971 decided on 18-12-1974, this Court held that if the landlord failed to ducharge his obligation of giving 7 days' notice in accordance with !"}}, {"text": "section 7(1)(a)", "label": "PROVISION", "start_char": 5768, "end_char": 5783, "source": "regex", "metadata": {"statute": null}}, {"text": "17th September, 1962", "label": "DATE", "start_char": 6752, "end_char": 6772, "source": "ner", "metadata": {"in_sentence": "[7150-E, F-716B; 718E-719F]\n\n(ii) In the instant caac it is not correct to say that the order of allotment made on the 17th September, 1962-two days after the expiry of the period of 30 days was invalid on that account alone."}}, {"text": "Mathew", "label": "JUDGE", "start_char": 8349, "end_char": 8355, "source": "ner", "metadata": {"in_sentence": "[717G-718B; C-D]\n\n(ii) By majority (Mathew and Untwalia, JJ.)"}}, {"text": "Untwalia", "label": "JUDGE", "start_char": 8360, "end_char": 8368, "source": "ner", "metadata": {"in_sentence": "[717G-718B; C-D]\n\n(ii) By majority (Mathew and Untwalia, JJ.)", "canonical_name": "Untwalia"}}, {"text": "11-10-1962", "label": "DATE", "start_char": 8741, "end_char": 8751, "source": "ner", "metadata": {"in_sentence": "3 embodied in the compromise petition dated 11-10-1962 Wfll void under section 23 of the Contract Act as it was unlawful and against tit• public policy of the Act under the Rules."}}, {"text": "section 23", "label": "PROVISION", "start_char": 8768, "end_char": 8778, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7A", "label": "PROVISION", "start_char": 9333, "end_char": 9343, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 9427, "end_char": 9435, "source": "ner", "metadata": {"in_sentence": "[717C-FJ\n\nPer Bhagwati, J. (dissentina)\n\nEven if the compromise was unlawful and the consent decree was oa taa\\ account void, t'he very fact of the 3rd respondent having submitted to the co•- sent deem:, declaring the order of allotment to be invalid and recognising the right of the appellant to occupy the shop for himself vi.r-a-vl.t the 3rd respoa.", "canonical_name": "Bhagwati"}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 11159, "end_char": 11170, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. S. Bhatia, J. P. Goyal and S. M. Jain, for the 11ppellant .", "canonical_name": "S. T. Desai"}}, {"text": "S. S. Bhatia", "label": "LAWYER", "start_char": 11172, "end_char": 11184, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. S. Bhatia, J. P. Goyal and S. M. Jain, for the 11ppellant ."}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 11186, "end_char": 11197, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. S. Bhatia, J. P. Goyal and S. M. Jain, for the 11ppellant ."}}, {"text": "S. M. Jain", "label": "LAWYER", "start_char": 11202, "end_char": 11212, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. S. Bhatia, J. P. Goyal and S. M. Jain, for the 11ppellant ."}}, {"text": "f3ishan Narain", "label": "LAWYER", "start_char": 11238, "end_char": 11252, "source": "ner", "metadata": {"in_sentence": "f3ishan Narain, B. P. Maheshwari and Surtsh Sethi, for respondent H No.", "canonical_name": "f3ishan Narain"}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 11254, "end_char": 11270, "source": "ner", "metadata": {"in_sentence": "f3ishan Narain, B. P. Maheshwari and Surtsh Sethi, for respondent H No."}}, {"text": "Surtsh Sethi", "label": "LAWYER", "start_char": 11275, "end_char": 11287, "source": "ner", "metadata": {"in_sentence": "f3ishan Narain, B. P. Maheshwari and Surtsh Sethi, for respondent H No."}}, {"text": "P. N. Bhagwati", "label": "JUDGE", "start_char": 11374, "end_char": 11388, "source": "ner", "metadata": {"in_sentence": "P. N. Bhagwati, J. gave a dissenting Opinion,\n\n712 sUPREME COURT REPORTS [1975] 3 s.c.", "canonical_name": "P. N. BHAGWATI"}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 11464, "end_char": 11472, "source": "ner", "metadata": {"in_sentence": "R.\n\nUNTWALIA, J.-There is a building bearing no.", "canonical_name": "Untwalia"}}, {"text": "Kanpur", "label": "GPE", "start_char": 11560, "end_char": 11566, "source": "ner", "metadata": {"in_sentence": "24/6, Tulsa Kothi, situated at Mall in the City of Kanpur, The appellant in this appeal filed by certificate of the Allahabad High Court is the owner of the said building."}}, {"text": "Raghunath Prasad", "label": "OTHER_PERSON", "start_char": 11897, "end_char": 11913, "source": "ner", "metadata": {"in_sentence": "One of the shops has been coming in possession of Raghunath Prasad Mehrotra, respondent no."}}, {"text": "Kanahyalal Mehrotra", "label": "RESPONDENT", "start_char": 11957, "end_char": 11976, "source": "ner", "metadata": {"in_sentence": "3 and his brother Kanahyalal Mehrotra who have been carrying on the business of Druggists and Chemists in the said shop as parilners of the firm Pioneer Drug Stores.", "canonical_name": "Kanahyalal Mehrotra"}}, {"text": "7-11-1961", "label": "DATE", "start_char": 12352, "end_char": 12361, "source": "ner", "metadata": {"in_sentence": "ion on 7-11-1961 before the Rent Control and Eviction OUicer\n\n(fc, r brevity, Rent Controller) with a copy to the District Magistrate, Kanpur under Rule 6 of the Control of Rent and Eviction Rules, 1949 framed under section 17 of the U.P. (Temporary) Control of Rent and Ewction Act, 1947-herein'l\\fter called respectively the Rules and the Act praying for the release of the shop in his favour on the\n\nound that he required the accommodation for his own use for establishing a business for his son."}}, {"text": "Control of Rent and Eviction Rules, 1949", "label": "STATUTE", "start_char": 12507, "end_char": 12547, "source": "regex", "metadata": {}}, {"text": "section 17", "label": "PROVISION", "start_char": 12561, "end_char": 12571, "source": "regex", "metadata": {"linked_statute_text": "the Control of Rent and Eviction Rules, 1949", "statute": "the Control of Rent and Eviction Rules, 1949"}}, {"text": "Control of Rent and Ewction Act, 1947", "label": "STATUTE", "start_char": 12596, "end_char": 12633, "source": "regex", "metadata": {}}, {"text": "-5-1962", "label": "DATE", "start_char": 12849, "end_char": 12856, "source": "ner", "metadata": {"in_sentence": "On 2-5-1962, respondent no."}}, {"text": "section 7(2)", "label": "PROVISION", "start_char": 12904, "end_char": 12916, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Ewction Act, 1947", "statute": "Control of Rent and Ewction Act, 1947"}}, {"text": "18-8-1962", "label": "DATE", "start_char": 13450, "end_char": 13459, "source": "ner", "metadata": {"in_sentence": "On 18-8-1962 Ike Rent (',, ontroller heard the matters and fixed 27-8-1962 for orders."}}, {"text": "Ike Rent", "label": "OTHER_PERSON", "start_char": 13460, "end_char": 13468, "source": "ner", "metadata": {"in_sentence": "On 18-8-1962 Ike Rent (',, ontroller heard the matters and fixed 27-8-1962 for orders."}}, {"text": "27-8-1962", "label": "DATE", "start_char": 13512, "end_char": 13521, "source": "ner", "metadata": {"in_sentence": "On 18-8-1962 Ike Rent (',, ontroller heard the matters and fixed 27-8-1962 for orders."}}, {"text": "18-9-1962", "label": "DATE", "start_char": 14158, "end_char": 14167, "source": "ner", "metadata": {"in_sentence": "2 on 18-9-1962."}}, {"text": "section 7", "label": "PROVISION", "start_char": 14337, "end_char": 14346, "source": "regex", "metadata": {"statute": null}}, {"text": "2· 11-\n\n1962", "label": "DATE", "start_char": 14363, "end_char": 14375, "source": "ner", "metadata": {"in_sentence": "l!herefore filed an application under section 7 A of the Act on 2· 11-\n\n1962, which was allowed by the Rent Controller on 15-11-1962."}}, {"text": "section 7", "label": "PROVISION", "start_char": 14756, "end_char": 14765, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 14912, "end_char": 14921, "source": "regex", "metadata": {"statute": null}}, {"text": "22-9-1962", "label": "DATE", "start_char": 14963, "end_char": 14972, "source": "ner", "metadata": {"in_sentence": "A\n\ns. K. KHANNA v. A.D.M. (Untwalia, J.) 713\n\nBefore the filing of the application by the third respondent on 2-11-1962 under section 7 A of the Act, the appellant had filed on 22-9-1962 Suit No."}}, {"text": "First Civil Judge at\n\nKanpiur", "label": "COURT", "start_char": 15007, "end_char": 15036, "source": "ner", "metadata": {"in_sentence": "13211962 in the Court of First Civil Judge at\n\nKanpiur challeging the allotment order of the Additional District Magistrate and the Rent Controller implementing the third respondent as the sole defendant in the suit."}}, {"text": "section 7A", "label": "PROVISION", "start_char": 16022, "end_char": 16032, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 16446, "end_char": 16457, "source": "regex", "metadata": {"statute": null}}, {"text": "7-5-1963", "label": "DATE", "start_char": 16658, "end_char": 16666, "source": "ner", "metadata": {"in_sentence": "The Writ Petition was' dismissed by a learned single Judge on 7-5-1963."}}, {"text": "Alla habad High Court", "label": "COURT", "start_char": 16729, "end_char": 16750, "source": "ner", "metadata": {"in_sentence": "25411963 was dismissed by a Bench of the Alla habad High Court on 3-2-1964."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 16941, "end_char": 16952, "source": "ner", "metadata": {"in_sentence": "Mr. S. T. Desai appearing for him in this Court pressed only 3 points for our consideration in support of this appeal.", "canonical_name": "S. T. Desai"}}, {"text": "section 7(1)", "label": "PROVISION", "start_char": 17190, "end_char": 17202, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 17343, "end_char": 17352, "source": "regex", "metadata": {"statute": null}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 17651, "end_char": 17664, "source": "ner", "metadata": {"in_sentence": "Mr. Bishan Narain, learned counsel for resrandent no.", "canonical_name": "f3ishan Narain"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 19381, "end_char": 19390, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7 and 7", "label": "PROVISION", "start_char": 19852, "end_char": 19867, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 20005, "end_char": 20014, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 20489, "end_char": 20498, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7A", "label": "PROVISION", "start_char": 20686, "end_char": 20696, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 20925, "end_char": 20934, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 21163, "end_char": 21172, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(l)(a)", "label": "PROVISION", "start_char": 21502, "end_char": 21517, "source": "regex", "metadata": {"statute": null}}, {"text": "18-12-197 4", "label": "DATE", "start_char": 22425, "end_char": 22436, "source": "ner", "metadata": {"in_sentence": "Recently in the case of Jiwan Singh v. Rajindra Prasad & Anr.('f, j11dgment of which was delivered by Mathew, J. on behalf of this very Bench on 18-12-197 4, it was pointed out that if the landlord failed to discharge his obligation of giving 7 days' 11otice in accordance with section 7(1)(a), he lost his right of making .a nomination under Rule\n\n4."}}, {"text": "section 7(1)(a)", "label": "PROVISION", "start_char": 22558, "end_char": 22573, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(1)(a)", "label": "PROVISION", "start_char": 23819, "end_char": 23834, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(1)(a)", "label": "PROVISION", "start_char": 24195, "end_char": 24210, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 26730, "end_char": 26740, "source": "regex", "metadata": {"statute": null}}, {"text": "18th Sevtember, 1962", "label": "DATE", "start_char": 27082, "end_char": 27102, "source": "ner", "metadata": {"in_sentence": "The four terms of the compromise are as onder\n\n(a) \"That it is admitted by the defendant that at the expiry of 30 days from the date of intimation the shop in dispute automatically stood released t~ the plaintiff and the allotment order dated 18th Sevtember, 1962 was not at al!"}}, {"text": "section 7", "label": "PROVISION", "start_char": 29420, "end_char": 29429, "source": "regex", "metadata": {"statute": null}}, {"text": "Bishen Narain", "label": "LAWYER", "start_char": 29561, "end_char": 29574, "source": "ner", "metadata": {"in_sentence": "We do not accept the alternative argument put furward by Mr. Bishen Narain as correct in respect of the compromise.", "canonical_name": "f3ishan Narain"}}, {"text": "section 74(3)", "label": "PROVISION", "start_char": 29868, "end_char": 29881, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 31151, "end_char": 31160, "source": "regex", "metadata": {"statute": null}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 31265, "end_char": 31273, "source": "ner", "metadata": {"in_sentence": "BHAGWATI, J.-1 have had the advantage of reading the judgment of brother Untwalia, J. Hi:.;", "canonical_name": "Bhagwati"}}, {"text": "Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 31943, "end_char": 31981, "source": "regex", "metadata": {}}, {"text": "Section 7", "label": "PROVISION", "start_char": 32239, "end_char": 32248, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 37116, "end_char": 37120, "source": "regex", "metadata": {"statute": null}}, {"text": "Untwaiia", "label": "JUDGE", "start_char": 37947, "end_char": 37955, "source": "ner", "metadata": {"in_sentence": "I would now turn to examine the third contention on which I find myself in disagreement with my learned brother Untwaiia, J.\n\nThe facts which bear on this contention are fully set out in the judgment •of my learned brother Untwalia, J. and I need not reiterate them.", "canonical_name": "Untwalia"}}, {"text": "Court of the First Civil Judge, Kanpur", "label": "COURT", "start_char": 38238, "end_char": 38276, "source": "ner", "metadata": {"in_sentence": "132 of 1962 was filed by the appellant against the 3rd respondent in the Court of the First Civil Judge, Kanpur challenging the validity of the order of allotment made by the District Magistrate in favour of the 3rd respondent."}}, {"text": "18th September, 1962", "label": "DATE", "start_char": 39293, "end_char": 39313, "source": "ner", "metadata": {"in_sentence": "The 3rd respondent, therefore, within a few days after the suit was filed and the mjunction was obtained, entered into a compromise with the appellant for settlement of the suit and the terms of this compromise were as follows :\n\n\"(a) That it is admitted by the defendant that at the expiry of 30 days from the date of intimation, the shop in dispute automatically stood released to the plaintiff .and the allotment order dated 18th September, 1962 was not at all effective vi.s-a-vis the rights of' the plaintiff as a landlord to use the said premises."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 40557, "end_char": 40584, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "2nd November, 1962", "label": "DATE", "start_char": 40861, "end_char": 40879, "source": "ner", "metadata": {"in_sentence": "The 3rd respondent, thus freed from the inhibitory mandate of the injunction, immediately proceeded to make an application to the Rent Control and Eviction Officer on 2nd November, 1962 under s. 7 A fur an order directing the."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 40886, "end_char": 40890, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 41175, "end_char": 41179, "source": "regex", "metadata": {"statute": null}}, {"text": "15th November, 1962", "label": "DATE", "start_char": 42111, "end_char": 42130, "source": "ner", "metadata": {"in_sentence": "The appellant did not appear at the hearing of the application and proceeding ex parte, the Rent Control and Eviction Officer passed an order dated 15th November, 1962 directing that the appel!ant be evicted from the shop and the 3rd respondent be put in possession of the same."}}, {"text": "8th January, 1963", "label": "DATE", "start_char": 42652, "end_char": 42669, "source": "ner", "metadata": {"in_sentence": "The appellant applied for a review of the order to the Rent Control and Eviction Officer but the application for review was rejected on 8th January, 1963."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 43133, "end_char": 43137, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 43201, "end_char": 43210, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 43537, "end_char": 43546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7A", "label": "PROVISION", "start_char": 45104, "end_char": 45109, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7A", "label": "PROVISION", "start_char": 46175, "end_char": 46180, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 46360, "end_char": 46364, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7A", "label": "PROVISION", "start_char": 46781, "end_char": 46786, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7A", "label": "PROVISION", "start_char": 46900, "end_char": 46905, "source": "regex", "metadata": {"statute": null}}, {"text": "Frankfurter", "label": "JUDGE", "start_char": 50365, "end_char": 50376, "source": "ner", "metadata": {"in_sentence": "Jt was pointed out by Frankfurter, J., in United States v. United Mine Workers of America(2 ) : \"No one, no matter how exalted his oublic office or how righteous his private motive, can be iudg:e in his own case.\""}}, {"text": "S. 258", "label": "PROVISION", "start_char": 50764, "end_char": 50770, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 51208, "end_char": 51212, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 51327, "end_char": 51331, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 52221, "end_char": 52225, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 52406, "end_char": 52410, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 52974, "end_char": 52978, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7A", "label": "PROVISION", "start_char": 54668, "end_char": 54673, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 54837, "end_char": 54841, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 54998, "end_char": 55002, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_726_734_EN", "year": 1975, "text": "726 ,;\n\nGOPAL KRISHNA DAS\n\nll.\n\nSAILENDRA NAill BISWAS & ANR.\n\nFebruary 26, 1975\n\nJY. V. CHANDR.ACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]\n\nCil'il Procedue Code-Order 21 Rule 71-; eaning of deficien_cy of price accrued by reason of the auction purhasers default-Wf:ether defic1en\"'t l!old 'lie attributable to the default of auct1on purchaser--Sectlon 12(2) of L1munr, on \"Act 1963-Time requisite for obtaining certified copy-Whether means time\n\n'properly required or includes time spent neRli~:enrly.\n\n. A\n\nThe appellant was one of the joint owners of the premises in question. In , execution of a money decree obtained agn.inst the appellant his share in the\n\nproperty was put to sale and was purchased by the father of the first respondent\n\n C -~ jor Rs. 77,000. 1be purchaser deposicd 25 per ent of the purchase price.\n\nT he property was put to sale once agam and was m fact knocked down for a\n\num of Rs. 700/ in favou.r of the father of respondent No. 1. The apellant :.Uade an application under Order XXI Rule 71 of C.P.C. for recovenng the :\n\ndeficiency in the price realised in the second sale from the purchase. Order XXI Rule 71 C.P.C. reads as under :-\n\nJ I I l -1 .. Any deficiency of price which may happen on a re-sale by reason of the purhaser's defJult and nit expenses attending such re-sale, shall be certified to the Court by the Officer or other person holding the 5alc, and shall nt the instance of either the decree bolder or the judFment Jcbtor, be recoverable from the defaulting purchaer under the provisions relating to the execution of a decree for the payment of money ...\n\nI D . l\n\nThe proclamation of sale for the first sale stated that the premises were free from encumbrances. Proclamation for the seconJ sale, however, states that the , entire grou11d floor excepting two road-side shops, was let out. ..\n\nThe !..earned Single Judge allowed the nppli::ation of the nppeUnnt and . direc1ed t~1e pur<; hao.; er ta pay the dcfitit:nc:y with interest. The Division Bench\n\nof the H•gh O.mrt 011lowcd the appc:al unJ dismissed applicotion filed by the appelJunt. unde.r Ordr .xxr. Rut~ 71 !or recovering from the auction purchar\n\nt~ defi.cuncy tn the satd pnce. On llPpeal by certificate undc:r Article t33ll ~(a) . & (c) tt wa$ contend!!d before this Court by th~ appellant that he was enutled . to recover from the first rsponJent the deficiency in the price reali:;, cJ in th'\"\n\nS'!cond \"'le under Order XXl Rule 71. The resrondent contended that the . appellant can ro; over t!le dcfficiency in the second sale only if it can be attributed\n\nto ddault of the auctJon purchaser.\n\nHELD:\n\ne application of Order XXI rule 71 i~ limited to c:1scs in which the ddlctency of pr1ce ha., <>ccl'rrcd by rt:lwn of the auction purchaser•s default . .Property oce put to hale in exution procecJings m:ty hav~: to be resold tor\n\nrea\\On~ whtch .m>tY or may not \\le connected with the ddault of the auction G purc.har. It not c~OO!!h that the rt, alc i~ occ:t'\\ioneJ. by the default of the\n\n. fi~Cllon purcar. .Jt l'i fur!her nces, ary thnt the re ... ale must result in a dfi\n\n'Jency of pree whh defictcncy 1s uttributahle to th-e udault of the aucuon\n\nrurch:tlo(t. fn the fil\"'tt rr!lclamation of ll>lo there wus no mention of the.le:lSef In the ond proclamation the lae ha\" been m--ntioned. In the ctty 0\n\nClcl!J.ta were premi'l~5 nre . .., ituated, the We'lt Dcngl Premises Tenancy Act,\n\n19~6 wa~ ID f?r~~ nt the t1me of the scond sale.\n\nUnder that Act tn:nts enJ?Yed te pnv1lege5 of stanJard rnt nnd . immunity from evi:tion. 1ht:. rdt:roce m the se1.ond sat~ proclamation to n lca<>e and to the fact that su\\:1- Jl\n\n$lnttl part _of the. property was in on.'\\lpntion of the tenant wa.1 bound to\n\nnfle~~ the markt!a.bllity of the property. Order XXI rule 71 h intndl!l I!J v~O\\ ldc:r ID cxpcdtiJOUS remedy to the juuj!ment debtor or the decree hoiJC'I' W~\n\n~)~~Dld • detriment due to the default of the auction purhascr. [n ~>c. '\n\nG, K. DAS v; S, N. BlSWAS (Clumdrachud, J.) 727\n\n(2) The apreal before the Division Bench was not time barred. The time requisite for obtaining certified copy means time properly required and an appellant cannot in computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. In the present case settlement of the draft decree was adjourned from time to time by an officer of the court on being properly satisfied that there was good reason for adjournment.\n\nThe Auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree unckr appeal.\n\n[734F-G]\n\nB CIVIL APPELATE JURISDICTION : Civil Appeal no. 10, ?.332 &\n\n2333 of. 1968.\n\nFrom t\\le Judgment & Order dated the 21st March, 1967 of the Calcutta High Court in Appeal Nos. 9, 10 and 43 of 1959.\n\nP. K. •Sen and G. S. Chfltterjee, for the appellant.\n\nA. K. Sen, P. K. Chatterjee, Rathin Das and Mrs. Anjana Sen; for respondent No. 1 .\n\nThe Judgment of tlie Court was delivered by\n\nCHANDRACHUD, J. Premises No. 4-A, Chowringhee Road, Calcutta, belonged to the appellant Gopal Krishna Das and four others, each having an undivided one-fifth share therein. In 1951, one Ganga Prasad Gupta obtained two money-decrees against the appellant. and another person i1a the total sum of Rs. 12,378. In execution of these decrees, the undivided one-fifth share of the appellant was put to sale on June 16, 1954 a't1d was purchased by Pashupati Nath Biswa'3, the father of the first respondent, for:. Rs. 77,040.\n\nPashupati Nath Biswas deposited Rs. 19,260 in the court, being 25% of th~ purchase price and later he deposited a further sum of Rs. 15,0{)0.\n\nHe however, failed to pay the balance of the purchase price whereupon the appellant made an application that the property be put to a fresh sai.e.\n\nAccordingly. the /property was put to sale on March 20, 1957 and once again Pashupati Nath Biswas was the highest bidder. But whereas in the first sale he had offered a bid of Rs. 77,040 this time the sale was knocked down in his favour for a paltry sum of Rs. 700. The second sale was confirmed on May 29, 1957.\n\nIn the meanwhile, on May 16, 1957 the Sheriff certified unLl'!r Order XXI, Rule 71 of the Code of Civil Procedure that the deliciency in the price realised in the second sale due to the default of the auction purchaser, after giving him credit h the sum of Rs, 15,000 paid by him in the first sale,\" amounted to Rs. 61,340 apart from the cost and expenses of the sales.\n\nOl1 June 28, 1957 the appellant made an application under Order XXI, Rule 71 C.P .C. for . recovering the deficiency from Pashupati -Nath Biswas.\n\nA learned single Judge of the Calcutta High Court allowed that application and direct by an order dated August 19, 19 5 S that Pashupati Nath Biswas do pay to the appellant a sum of Rs. 42,080 with interest at 6% per annum.\n\nThis Oider was challenged by Pashupati Nath Biswas in appeal No. 10 of 1959.\n\nThe auction purchaser had alsp filed an application asking that the appellant be restrained from taking execution proceedings for recovering the deficiency in price. That prayer was rejected. It may be mentioned that pursuant to an application dated April 13, 1957 filed by the auction purchaser himself, it was directed by an order dated May 21, 1957 that a sum of Rs. 22,000 be paid by the Sheriff out of the sale proceeds lying with him, to the Official Receiver in satisfaction of the decree obtained by G-anga Prosad Gupta against the appellant, h1 execution of which the two sales were held. Ganga Prosad Gupta's estate, it seems, had come to be vested in the Official Rcciver, he is the second respondent to these appeals. The auction purchaser prayed that the Sheriff do pay to him the balance after deducting therefrom the sum of Rs. 22,000 and the cost and the expenses of the Sheriff.· This prayer was also rejected.\n\nThe auction purchaser f1leu appeal No. 9 of 1959 against the order rejecting this application.\n\nThe appeUant then filed an application for a~1 order directing that the Sheriff do pay to him all the moneys lying with him after deducting the cost and the expenses of the sales. That application was allowed by the learned single Judge on December 11, 1958. The auction purchaser challenged that order in appeal No. 43 of 1959.\n\nThe three appeals were heard together and disposed of by a Division Bench of the Calcutta High Court by three separate judgment!5.\n\nBy its judgment dated March 21, 1967 the Division Bench allowed appeal No. 10 of 1959 and dismissed the application filed by the appellant under Order XXI, Rule 71 for recovering from the auction purchaser the deficiency in the sale price. The two other appeals were disposed of consistently with that judgment. The auction purchaser Pashupati Nath Biswas having died on April 16, 1964, the first respondent Sailendra Nath Biswas came on the record of the appeals as his Executor 3nd legal representative. On December 15, 1967 the . High Court granted to the appellant leave to file an appeal to this Court under Article 13 3 ( 1 )(a) and (c) of the Constitution.\n\nQuestions raised in the High Court by the rival parties as regards the disbursement by the Sheriff ef the balance remaining with him after satisfying Ganga Prasad Gupta's decree are incidental to the main controv\"rsy arising out of the appellant's application under Order XXI, P 'llle 71, Code of Civil Procedure. The real question\n\nfor decision JS. whether the appellant i~ entitled under Order \"XI, Rule 71, to recover from the first respondent the deficiency in the priCe realised in the second sale. .\n\nThe scheme of the Code in relation to execution sales is like this : G Under Order XXI, Rule 64 any Court executing a decree may order the sale of oa property in satisfaction of the decree. Order 21, Rule 66 provides that the Court shall cause a proclamation qf the intended sale to be made. Sub-Rule (2) of Rule 66 specifies the details which are required to be mentioned in the proclamation of sale. The person declared to be the purchaser must uQder Order XXI, Rule 84, pay immediately after the declaration a deposit of 25% of the purchase- H money.\n\nIn default of such deposit the property has to be re-sold forthwith.\n\nBy Rule 85 the full amount of purchas{}-money has to be paid by the purchaser within 15 days from the date of sale. If the\n\npwchaser commits a default, the deposit is liable to be. f;:, feited to the Government by virtue of Rule 86 and the property ts hable to be re-sold. A re-sale of property, in default of payment of the Pll; rchasemoney, can be-made only after the issue of a fresh proclamatiOn as provided in Rule 87. Under Order 21, Rule 71 :\n\n\"Any deficiency of price which may happen on a re-sale bv reason of the purchaser's default, and all expenses attending such re-sale, shall be certified to the Court by the officer or other person holding the sale, and shall, at the instance of either the decree holder or the judgment debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree , for the payment f \" o mcMey.\n\nIt is clear on a careful re.•ading of Rule 71 that its application is limited to cases in which the deficiency of price has occurred by reason of the auction purchaser's d0fault.\n\nProperty once put to snle in execution procoedi1ags may have to be re-sold for reasons which m11y\n\nor may not be connected with the default of the auction purchaser.\n\nA re-sale consequent on the failure of the auction purchaser o deposit 25% of the purchase price immediately after he is declared to be the purchaser of t:.e property or a resale consequent upon his failure todeposit the balance of the purchase price within 15 days of the sale are instances when the re-sale is occasioned by the default of the oauction purchaser.\n\nOJ1 the other i1and, re-sale consequent upon the . . , etting aside of the sale on the ground of material irregularity iri\n\npublishing or conducting the sale as provided in Order XXI, Rule 90, may not be attributable to the default of. the purchaser. The provisions of Order XXI, Rule 71, come into play only if the property i~ required to be resold on account of the default of the action purchaser.\n\nIf the re-sale is not due to the auction purchaser's default, there can be l1o question of mulcting him with the deficient y in the price realised in the re-sale. The words : \"Any deficiency of price which ma} happen on a resale by reason of the purchaser's default'' occurring in Rule 71 therefore mean : \"Any deficiency of price. which on a re-sale niay happen by reason of the purchaser's default\".\n\nAs smted before, the question of holding the auction purchaser liable to make f.!OOd the deficiency in price can arise only if the re-sale is occasioned by bi!l default. But though, this is necessary, it is not enough to meet the requirements of Rule 71.\n\nWhat is necessary is that the re-sale occasioned by the auction purchaser's default must result in a deficiency of price, which\n\ndeficiency is attributable to his default.\n\nA resale may have to be held because the auction purchaser has committed default in payin~ the deposit of 25% under Order XXI, Rule 84, or because of his default in paying the full price which J.5 days of the sale as required by Rule 85. And yet the deficiency of price realised in the re-sale may not be attributable to his default as, for example, where the market value of the property is reduced to . the discovery or disclosure of an infirmity in the right, title and interest of the judgment-debtor in\n\nthe property put to sale. An encumbrance existing on the property at\n\n16-470SCI/75\n\nthe time of the first sale but not disclosed in the proclam_ation of that sale will hav~;; no bearin, g on the price realised in the auction sale, unless the existence of the encumbrance was otherwise known to the bidders.\n\nThe disclosure of tnat enc-Lllllbrance in the sale proclamatirm accompanying the re-sale must, on normal commercial considerations, have a direct impact on the price of the property put to sale.\n\nIn such a case the deficiency of price realised in the~ resale will be attributable uot necessarily to the default of th~ auction\n\npurchaser but to circwnstances extraneous to his default.\n\nOr<ler XXI, Rule 71, concerns itself not with that class of cases but with those in which the deficiency of prict~ realised in the re-sale is\n\nttributable to the default of the aucHon purchaser.\n\nEven a broad and non-too-meticulous examination of the two proclamation of sale in the instant case is enough to conclude that the deficiency in price realised in the re-sale cannot b~ said to have happened on account of the auction purchaser's default.\n\nThe first sale was held on June 16~ 1954 and the proclamation of sale accompanying it is dated May 10,. 1954. The second s:1lc v, as\n\nheld on March 20. 1957 for which the relevant sak proclamation is dated February 8, 1957.\n\nBoth the proclamations mention that what was being put to sale was the right, little and interest of the appellant, Go pal Krishna Das, in the undivided one> fifth share iR the particular property.\n\nBut there is a material difference in 1he terms of the two proclamations in regard to the encumbrances existing on the property.\n\nThe proclamation of 1954 sets out in a tabular form encumbrances like leases and mortgag~:; to which the property was :)rcviomly subjected. as appearing from the affidavit of one Damodar Mullick.\n\nThe proclamation then says :-\n\n\"It appears from the said affidavit that all the Mortgages have been reconveyed. The lease has expired.\n\nThe sale is in respect of the undivided 1 /5th sh'are of Pm•na Ch. Das.\n\nIt appears from the said affidavit that the 1/5th share of Gopal Kr. Das in the said premises is free from encumbraoces.''\n\nThe proclamation of 1957, relying on an affidavit of one Sudhansu :lumar Roy savs undoubtedly that th\"'. appellant's one-fifth share was\n\nfree from encumbrances but the tabu1ar statement of encumbrances included in tbe proclamati()n refers to a Term Lease and Agree111ent of 1955 and the proclamation says :\n\n\"The :lease of 1955 is for five years from October, 1955 anr:l the same is in respect of the Restaurant \"Bombay Crown\" containinl! the enrire Qrnund flnnr 0 \"1icentinptn1o road side shoos and was exeuted by one Abde Ali Abdul Hussain in favour of Ashtifaq and J afiar Hussain.\"\n\nIt is notorious. that orooerties jn possession of tenants who enioy the orotection of Rent Acts do not fP:tch. the same nrice as prcmerties of which the purchaser can obtain vacant possesion.\n\nIn the\n\ncity of Calcutta where the property in question is situated, The West Bengal Premises Tenancy Act, XII of 195(), was in force, at the time of the seond sale.\n\nUnder that Act the tenants enjoyed the privilegs of standard ren~ and immunity from eviction save on stated grounds.\n\nIt is unnecessary to enter into refinements arisin!l out of the West Bengal Act but even the sub:-tenants would appear to enjoy thereunder a certain :.imount of immunity from eviction.\n\nRefrence may in this behalf b~ made to sections 13 (2), ( 4), (5) and section 16 of the Act of 1956.\n\nThe reference in the second sale proclamation to a live lease and suh I ease and to the fact that a substantial part of the property was in occupation of the tenant or the sub-tenant was bound to affect\n\nthe marketability of the prerty. The paltry price realised in the second sale may justifiably be attributed to the disclosure of encumbrances in the second proclamation, which were not mentioned in the fust proclamation. It is not without significanc~ that apart from the auction purchaser there were no bidders at the second sale. The paucity of bidders may , r:easonably be taken to reflect the fall in the value of the property in the estimation of prospective bidders .\n\nOrder XXI, Rule 71 is intended to provide an expeditious remedy to the judgment-debtor or the decree-holder who has suffered a detriment due to the default of the auction purchaser. The ,_Jficer or other person holding the sale has to certify to the Court the deficiency of price which oni the re-sale has happened by the purchaser's default and all expenses attending the re-sale.\n\nUpon such certification the amount becomes recoverable from tne defaulting purchaser at the instance of the decree-holder or the judgment-debtor, \"under the provisions relating to the execution of a decree for the payment of money\".\n\nThe Code has not made the certificate conclusive of the facts stated therein and consequently it is permissible to the purchaser who is alleged to have defaulted to challenge the correctness of the certificate in all .its particulars.\n\nBut the object of certification, as evidenced even more clearly by the provision that the proceeding to recover the amount wi.ll be governed by provisions relating to the execution of a money-decree, is to eschew an elaborate inquiry into the comoetin& causes culminating in the deficiency of price.\n\nThis object can be achieved only if the property successively put to sale is in material\n\nresoecfs icff'ntical. that is to sa!V. if the ri!!ht. t1+1e ::lnrl interr.st of the judgment debtor is put to sale under substantially the same description.\n\nIf that happens it is easy to predica+e that the deficiency of price has resulted on account of the purchaser's default.\n\nBut if, as here, what was shown as unencumbered in the previous proclamation is exoresslv described 1n the la.ter nrodamation as being subiect to an encumbrance which on a reasonable assessment is alculated to affect e market value of e property, the ~\n\nced:n!! ceases to be a s1mole enouqh mattr l1ke +l, e e~Pcution of\n\na money-decree and assumes the form of a contentious claim open to diverse defences as in a sutantive suit. The soeedv remedv intent). to. qe provided by Order XXI, Rule 71 will lose its meaning an4\n\nSUPREM~ COURT REPORTS\n\n[1975] 3 S.C.R.\n\npurpose if the executing court seized of the claim agaist the alleged\n\ndetau!tmg purchaser has to embark upon a comparative evaluallo? of the causes that led to the deficiency in the pnce.\n\nSuc.Q. me:at IS not for the executing court.\n\nCounsel for the appellant relied on certain decisio~ to fasten liability on the auction purchaser but those decisions will not help.\n\nIn A1inavajhula Venkatachellamayya v.\n\nRama Girjee Milakanta Girjee(l), a purchaser in a court auc.tion of the judgment-debtor's right to get a re-conveyance of certain lands on payment of a specified sum was, on default in payment of the balance purchase mcmey,\n\nheld liable to pay the deficiency in price on re-sale under Order XXJ, RuLe 71, C.P.C., thougn the date stipulated for making the payment in order to get the rKonveyance happened to be sh.ortly after the 'court sale and before the expiry of the lS days within which\n\nhe ·•uction . purchaser could deposit the balance of the purc:llaso money.\n\nWallin CJ. observes in his judgment that the sale axuf, the l'c•sale were of the judgment-debto1's inte1est as it existed at the date of the sale •and the re-sale and that the depreciation which occurred . in he meantime wa~ one for which the auction purchaser was exclusively responsible.\n\nIn his concurring judgment Kumaraswami Sastriya•~ J. observeH that having regard to the fact that there is no warrant of title in a court auction, the maxim caveat emptor applies and therefore the purchaser cannot avoid the sale so Ion~ as the judgment-debtor has some saleable interest in! the property, howsoever small. The Ieame.d Judge further observes that the objections which a defaulting purchaser can urge are practically .confined to those .which can be urged in an application for setting aside\n\nthe sale under Order XXI. Relying on; these observations it is contended on behalf of the appellant that sine in the instant case the judgment-debtor had a saleable interest the auction purchaser cannot avoid his liability to make up the deficiency in price on the ground that the deficielllcy was caused by the disclosure of the encumbrance.\n\nWe are unable to appreciate the relevance of the maxim caveat emptor on a question like the one before us. The auction purchaser is not attempting' to avoid the sale.\n\nFar from it. He adheres to his purchase but disputes his liability for the deficiency.\n\nThere is no question of any failure on his part to take due care at the time of the first sale because that sale was held in 1954 whereas the encumbrance referred to in the second proclamation was stated to have been created in 1955. . ' .\n\nM_adho v. \"':atsalubai(2), o~ which the appellant relies, was a <:ase m which the ex.tstence of a mamtenance charge and the right of reside.nce were om1tted to be mentioned in the sale proclamation. 'The Htg? C?ur~ a.t. Nagpur held that the auction purchaser could not avOid hts hab•hty to make good the deficiency in the sale price as the decee-ho1der in whose favour tlle charge was created bad reit<ra\n\nted aqam and arcai~ tb3t she was willing to waive the charJ!e. Hidavatullah J. who dectded the case further observes in his judgment that\n\n. l) I. I .R. 41 Mad. 474.\n\n(2) I.L.R. £1947] Nag. 939.\n\non a comparison of the two sale proclamations he found that the existence of the charge was not mentioned in either. Naturally, the deficiency in price could not be attributed to the existence of the charge.\n\nIn Nelluri Brahmaiah vs. Mohd. Sheik Mohiddin and Anr.,(1) the auction purchaser disputed his liability for the deficiency on the ground that the judgment debtor had no sateable interest in the property.\n\nThis contention was based on th~ circumstance that though the property was situated in Venkatapuram it was wrongly described as lying within the limits of Borrampalem. There was_ no dispute about the boundaries, about the survey number or the area and it was not sug~ gestcd that there was any other property of the particular description c jn Borrampalem. The High Court of Andra Pradesh held that in\n\nthese circumstan(:es the property could be ea~Hy identified, tat the location of tho property put to sale was known to everyone concerned\n\ntmd therefore it was difficult to posit that the judgment-debtor had no\n\nalcable interest in the property.\n\nThe decisions in Baijnath Sahai vs. Moheep Narain Singh ( ~) md in Gangadas Dayabhai vs. Bai Suraj( a), are more to the point. These cases arose under section 293 of the Code of 1882 corresponding to Order XXI, Rule 71, of the Code of 1908. In the Calcutta case, at the first sale no encumbrance upon the properties sold was notifid.\n\nIn the re-sale two encumbrances were notified. The econd sale was held because the auction purchaser had committed a default in paying\n\nthe balance of the purchase-price in the first sale. The price fetched in the second sale resulted in a deficiency for which the auctio:n purchaser was sought to be made liable.\n\nApart from the circumstance that the decree-holder was himself to blame for niot mentioning the encumbrances in the first proclamation and was therefore attempting to obtain an advantage of his own wrong, the Calcutta High Court expressed the legat position correctly by saying that \"the re-sale contemplated by s. 293 of the Code of Civil Procedure must be a sale of the same property that was first sold, and under the same description, and any substantial difference of description at the sale and the\n\nre-sale in any of the matters required to be specified by s. 287 to\n\neable intending purchaser~. to judg~ of the value of the property should disentitle the decree-holder to recover the deficiency of price under s. 293.\" In the Bombay Case the errors in the two proclamations were so confusing that the oeficiency in the price could oot, it .\n\nwas held~ be attributed to the default of the purchaser. The description in the second proclamation being materially different from that in the first, the re-sale was not of the same property and the auction purchaser, though he had defaulted in paying the balance of the purchase-price was absolved from making good the deficiency.\n\nIt was contended that Pashupati Nath Biswas, the auction purchaser, being in possession of a part of the property must be deemed\n\n(1) [1964] (I) Andhra Law Times, 321.\n\n(2) I. L. R. 16 Cal. 535.\n\n(3) I. L. R. 36 Born. 329.\n\nto have been aware of the lease and the sub-lease and therefore he is estopped from relying upon. the sai!le as having. led to the deficie.ncy in price. No estoppel can anse agamst the auct10n purchaser on e question whether the deficiency in price can be recovered . from lum.\n\nThe question which arises under Order XXI, Rule 7~ IS whether the deficiency can be attributed to the default of the auct10n purchaser or whether it c:an be reasonably attributed to any other supervening circumstance. This is not a case in which tht auction purchaser can be said to be taking advantage of his own wrong. He cannot therefore be estopped from contending tat the disclosure of the encum brance is the operative cause of the fall in price.\n\nWe may mention that the matter under consideration arose out of the Ordinary Original civil jurisdiction of the Calcutta High Court and therefore the Original Side Rule~ of the High Court would govern the matter. That will, however, net make any difference to our decision because Chapter XXV, Rule 7 of the Rules of 1914 provides by the Third clause for re-sale of the property in default of the payment of the p.rice by the purchaser within the stipulate'd time. The Third clause of Rule 7 provides : \"Where the proceeds of the resale\n\narc less than the price bid by such defaulting purchaser, the diff<.rence shall be leviable from him under the rules contained in Order l ot the Code for the execution of a. decree for money.'' The Fifth clause of Rule 7 also pr01Jids that the sale is maqe under and subject to all other provisions contained in the Code of Civil Procedure relating to sales in exc!Cution of decrees.\n\nOrder XXI, Rule 71 of the Code would therefore apply.\n\nIt was finally contended on behalf of the appellant that the appeal filed by the auction purchaser from the judgment of the single Judge to the Division Bench of the High Court was barred by limitation.\n\nWe see no substance in this contention. The time requisite f.or obtaining certified copies undoubtedly means \"the time properly required'' and all appellant cannot in the computation of the period of\n\nlimitation for filling the appeal ask for exclusion of time which was spent negligently.\n\nBut the facts and dates mentioned to us by the appellant's counsel show that the settlement of the draft decree was adjourned from time to time by an officer of the court on being property satisfied that there was good reason for adjournment. The auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree under appeal. The argument must therefore fail. ·\n\nFor these reasons we confirm the jugments and dismiss these a~ peals with costs. Costs shall be in one set.\n\nP.H.P.\n\nAppeals dismissed.", "total_entities": 73, "entities": [{"text": "GOPAL KRISHNA DAS", "label": "PETITIONER", "start_char": 8, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "GOPAL KRISHNA DAS", "offset_not_found": false}}, {"text": "SAILENDRA NAill BISWAS & ANR", "label": "RESPONDENT", "start_char": 32, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "SAILENDRA NAill BISWAS & ANR", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 103, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 122, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Order 21 Rule 71", "label": "PROVISION", "start_char": 162, "end_char": 178, "source": "regex", "metadata": {"statute": null}}, {"text": "Uade an application under Order XXI Rule", "label": "STATUTE", "start_char": 976, "end_char": 1016, "source": "regex", "metadata": {}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1023, "end_char": 1028, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order XXI Rule", "label": "STATUTE", "start_char": 1122, "end_char": 1136, "source": "regex", "metadata": {}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1140, "end_char": 1145, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order XXl Rule", "label": "STATUTE", "start_char": 2429, "end_char": 2443, "source": "regex", "metadata": {}}, {"text": "Dcngl Premises Tenancy Act", "label": "STATUTE", "start_char": 3378, "end_char": 3404, "source": "regex", "metadata": {}}, {"text": "Clumdrachud", "label": "JUDGE", "start_char": 3978, "end_char": 3989, "source": "ner", "metadata": {"in_sentence": "G, K. DAS v; S, N. BlSWAS (Clumdrachud, J.) 727\n\n(2) The apreal before the Division Bench was not time barred."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 4729, "end_char": 4748, "source": "ner", "metadata": {"in_sentence": "From t\\le Judgment & Order dated the 21st March, 1967 of the Calcutta High Court in Appeal Nos."}}, {"text": "P. K. •Sen", "label": "LAWYER", "start_char": 4787, "end_char": 4797, "source": "ner", "metadata": {"in_sentence": "P. K. •Sen and G. S. Chfltterjee, for the appellant."}}, {"text": "G. S. Chfltterjee", "label": "LAWYER", "start_char": 4802, "end_char": 4819, "source": "ner", "metadata": {"in_sentence": "P. K. •Sen and G. S. Chfltterjee, for the appellant."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 4841, "end_char": 4850, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, P. K. Chatterjee, Rathin Das and Mrs. Anjana Sen; for respondent No."}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 4852, "end_char": 4868, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, P. K. Chatterjee, Rathin Das and Mrs. Anjana Sen; for respondent No."}}, {"text": "Rathin Das", "label": "LAWYER", "start_char": 4870, "end_char": 4880, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, P. K. Chatterjee, Rathin Das and Mrs. Anjana Sen; for respondent No."}}, {"text": "Anjana Sen", "label": "LAWYER", "start_char": 4890, "end_char": 4900, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, P. K. Chatterjee, Rathin Das and Mrs. Anjana Sen; for respondent No."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 4971, "end_char": 4982, "source": "ner", "metadata": {"in_sentence": "The Judgment of tlie Court was delivered by\n\nCHANDRACHUD, J. Premises No."}}, {"text": "Calcutta", "label": "GPE", "start_char": 5023, "end_char": 5031, "source": "ner", "metadata": {"in_sentence": "4-A, Chowringhee Road, Calcutta, belonged to the appellant Gopal Krishna Das and four others, each having an undivided one-fifth share therein."}}, {"text": "Gopal Krishna Das", "label": "PETITIONER", "start_char": 5059, "end_char": 5076, "source": "ner", "metadata": {"in_sentence": "4-A, Chowringhee Road, Calcutta, belonged to the appellant Gopal Krishna Das and four others, each having an undivided one-fifth share therein.", "canonical_name": "GOPAL KRISHNA DAS"}}, {"text": "Ganga Prasad Gupta", "label": "OTHER_PERSON", "start_char": 5157, "end_char": 5175, "source": "ner", "metadata": {"in_sentence": "In 1951, one Ganga Prasad Gupta obtained two money-decrees against the appellant.", "canonical_name": "G-anga Prosad Gupta"}}, {"text": "June 16, 1954", "label": "DATE", "start_char": 5375, "end_char": 5388, "source": "ner", "metadata": {"in_sentence": "In execution of these decrees, the undivided one-fifth share of the appellant was put to sale on June 16, 1954 a't1d was purchased by Pashupati Nath Biswa'3, the father of the first respondent, for:."}}, {"text": "Pashupati Nath Biswa'3", "label": "OTHER_PERSON", "start_char": 5412, "end_char": 5434, "source": "ner", "metadata": {"in_sentence": "In execution of these decrees, the undivided one-fifth share of the appellant was put to sale on June 16, 1954 a't1d was purchased by Pashupati Nath Biswa'3, the father of the first respondent, for:.", "canonical_name": "Pashupati Nath Biswa'3"}}, {"text": "Pashupati Nath Biswas", "label": "OTHER_PERSON", "start_char": 5491, "end_char": 5512, "source": "ner", "metadata": {"in_sentence": "Pashupati Nath Biswas deposited Rs.", "canonical_name": "Pashupati Nath Biswa'3"}}, {"text": "March 20, 1957", "label": "DATE", "start_char": 5828, "end_char": 5842, "source": "ner", "metadata": {"in_sentence": "the /property was put to sale on March 20, 1957 and once again Pashupati Nath Biswas was the highest bidder."}}, {"text": "May 29, 1957", "label": "DATE", "start_char": 6081, "end_char": 6093, "source": "ner", "metadata": {"in_sentence": "The second sale was confirmed on May 29, 1957."}}, {"text": "May 16, 1957", "label": "DATE", "start_char": 6117, "end_char": 6129, "source": "ner", "metadata": {"in_sentence": "In the meanwhile, on May 16, 1957 the Sheriff certified unLl'!r Order XXI, Rule 71 of the Code of Civil Procedure that the deliciency in the price realised in the second sale due to the default of the auction purchaser, after giving him credit h the sum of Rs, 15,000 paid by him in the first sale,\" amounted to Rs."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 6182, "end_char": 6209, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "June 28, 1957", "label": "DATE", "start_char": 6471, "end_char": 6484, "source": "ner", "metadata": {"in_sentence": "Ol1 June 28, 1957 the appellant made an application under Order XXI, Rule 71 C.P .C. for ."}}, {"text": "Pashupati -Nath Biswas", "label": "OTHER_PERSON", "start_char": 6589, "end_char": 6611, "source": "ner", "metadata": {"in_sentence": "recovering the deficiency from Pashupati -Nath Biswas.", "canonical_name": "Pashupati Nath Biswa'3"}}, {"text": "August 19, 19 5", "label": "DATE", "start_char": 6718, "end_char": 6733, "source": "ner", "metadata": {"in_sentence": "A learned single Judge of the Calcutta High Court allowed that application and direct by an order dated August 19, 19 5 S that Pashupati Nath Biswas do pay to the appellant a sum of Rs."}}, {"text": "April 13, 1957", "label": "DATE", "start_char": 7167, "end_char": 7181, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that pursuant to an application dated April 13, 1957 filed by the auction purchaser himself, it was directed by an order dated May 21, 1957 that a sum of Rs."}}, {"text": "May 21, 1957", "label": "DATE", "start_char": 7256, "end_char": 7268, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that pursuant to an application dated April 13, 1957 filed by the auction purchaser himself, it was directed by an order dated May 21, 1957 that a sum of Rs."}}, {"text": "G-anga Prosad Gupta", "label": "OTHER_PERSON", "start_char": 7425, "end_char": 7444, "source": "ner", "metadata": {"in_sentence": "22,000 be paid by the Sheriff out of the sale proceeds lying with him, to the Official Receiver in satisfaction of the decree obtained by G-anga Prosad Gupta against the appellant, h1 execution of which the two sales were held.", "canonical_name": "G-anga Prosad Gupta"}}, {"text": "Ganga Prosad Gupta", "label": "OTHER_PERSON", "start_char": 7515, "end_char": 7533, "source": "ner", "metadata": {"in_sentence": "Ganga Prosad Gupta's estate, it seems, had come to be vested in the Official Rcciver, he is the second respondent to these appeals.", "canonical_name": "G-anga Prosad Gupta"}}, {"text": "11, 1958", "label": "DATE", "start_char": 8191, "end_char": 8199, "source": "ner", "metadata": {"in_sentence": "That application was allowed by the learned single Judge on December 11, 1958."}}, {"text": "March 21, 1967", "label": "DATE", "start_char": 8426, "end_char": 8440, "source": "ner", "metadata": {"in_sentence": "By its judgment dated March 21, 1967 the Division Bench allowed appeal No."}}, {"text": "April 16, 1964", "label": "DATE", "start_char": 8775, "end_char": 8789, "source": "ner", "metadata": {"in_sentence": "The auction purchaser Pashupati Nath Biswas having died on April 16, 1964, the first respondent Sailendra Nath Biswas came on the record of the appeals as his Executor 3nd legal representative."}}, {"text": "Sailendra Nath Biswas", "label": "RESPONDENT", "start_char": 8812, "end_char": 8833, "source": "ner", "metadata": {"in_sentence": "The auction purchaser Pashupati Nath Biswas having died on April 16, 1964, the first respondent Sailendra Nath Biswas came on the record of the appeals as his Executor 3nd legal representative.", "canonical_name": "SAILENDRA NAill BISWAS & ANR"}}, {"text": "December 15, 1967", "label": "DATE", "start_char": 8913, "end_char": 8930, "source": "ner", "metadata": {"in_sentence": "On December 15, 1967 the ."}}, {"text": "Article 13", "label": "PROVISION", "start_char": 9017, "end_char": 9027, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 9358, "end_char": 9381, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Order 21, Rule 66", "label": "PROVISION", "start_char": 9766, "end_char": 9783, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 21, Rule 71", "label": "PROVISION", "start_char": 10631, "end_char": 10648, "source": "regex", "metadata": {"statute": null}}, {"text": "May 10,. 1954", "label": "DATE", "start_char": 14778, "end_char": 14791, "source": "ner", "metadata": {"in_sentence": "The first sale was held on June 16~ 1954 and the proclamation of sale accompanying it is dated May 10,."}}, {"text": "March 20. 1957", "label": "DATE", "start_char": 14825, "end_char": 14839, "source": "ner", "metadata": {"in_sentence": "The second s:1lc v, as\n\nheld on March 20."}}, {"text": "February 8, 1957", "label": "DATE", "start_char": 14889, "end_char": 14905, "source": "ner", "metadata": {"in_sentence": "1957 for which the relevant sak proclamation is dated February 8, 1957."}}, {"text": "Krishna Das", "label": "OTHER_PERSON", "start_char": 15031, "end_char": 15042, "source": "ner", "metadata": {"in_sentence": "Both the proclamations mention that what was being put to sale was the right, little and interest of the appellant, Go pal Krishna Das, in the undivided one> fifth share iR the particular property."}}, {"text": "Damodar Mullick", "label": "OTHER_PERSON", "start_char": 15416, "end_char": 15431, "source": "ner", "metadata": {"in_sentence": "as appearing from the affidavit of one Damodar Mullick."}}, {"text": "Gopal Kr. Das", "label": "OTHER_PERSON", "start_char": 15702, "end_char": 15715, "source": "ner", "metadata": {"in_sentence": "It appears from the said affidavit that the 1/5th share of Gopal Kr."}}, {"text": "Sudhansu :lumar Roy", "label": "LAWYER", "start_char": 15824, "end_char": 15843, "source": "ner", "metadata": {"in_sentence": "The proclamation of 1957, relying on an affidavit of one Sudhansu :lumar Roy savs undoubtedly that th\"'."}}, {"text": "Abde Ali Abdul Hussain", "label": "OTHER_PERSON", "start_char": 16287, "end_char": 16309, "source": "ner", "metadata": {"in_sentence": "the enrire Qrnund flnnr 0 \"1icentinptn1o road side shoos and was exeuted by one Abde Ali Abdul Hussain in favour of Ashtifaq and J afiar Hussain.\""}}, {"text": "Ashtifaq", "label": "OTHER_PERSON", "start_char": 16323, "end_char": 16331, "source": "ner", "metadata": {"in_sentence": "the enrire Qrnund flnnr 0 \"1icentinptn1o road side shoos and was exeuted by one Abde Ali Abdul Hussain in favour of Ashtifaq and J afiar Hussain.\""}}, {"text": "J afiar Hussain", "label": "OTHER_PERSON", "start_char": 16336, "end_char": 16351, "source": "ner", "metadata": {"in_sentence": "the enrire Qrnund flnnr 0 \"1icentinptn1o road side shoos and was exeuted by one Abde Ali Abdul Hussain in favour of Ashtifaq and J afiar Hussain.\""}}, {"text": "sections 13", "label": "PROVISION", "start_char": 17058, "end_char": 17069, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 17089, "end_char": 17099, "source": "regex", "metadata": {"statute": null}}, {"text": "s1", "label": "PROVISION", "start_char": 19601, "end_char": 19603, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 20600, "end_char": 20605, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Wallin", "label": "JUDGE", "start_char": 20863, "end_char": 20869, "source": "ner", "metadata": {"in_sentence": "Wallin CJ."}}, {"text": "Kumaraswami Sastriya•~", "label": "JUDGE", "start_char": 21181, "end_char": 21203, "source": "ner", "metadata": {"in_sentence": "In his concurring judgment Kumaraswami Sastriya•~ J. observeH that having regard to the fact that there is no warrant of title in a court auction, the maxim caveat emptor applies and therefore the purchaser cannot avoid the sale so Ion~ as the judgment-debtor has some saleable interest in!"}}, {"text": "Hidavatullah", "label": "JUDGE", "start_char": 22971, "end_char": 22983, "source": "ner", "metadata": {"in_sentence": "Hidavatullah J. who dectded the case further observes in his judgment that\n\n."}}, {"text": "Venkatapuram", "label": "GPE", "start_char": 23605, "end_char": 23617, "source": "ner", "metadata": {"in_sentence": "This contention was based on th~ circumstance that though the property was situated in Venkatapuram it was wrongly described as lying within the limits of Borrampalem."}}, {"text": "Borrampalem", "label": "GPE", "start_char": 23673, "end_char": 23684, "source": "ner", "metadata": {"in_sentence": "This contention was based on th~ circumstance that though the property was situated in Venkatapuram it was wrongly described as lying within the limits of Borrampalem."}}, {"text": "High Court of Andra Pradesh", "label": "COURT", "start_char": 23879, "end_char": 23906, "source": "ner", "metadata": {"in_sentence": "The High Court of Andra Pradesh held that in\n\nthese circumstan(:es the property could be ea~Hy identified, tat the location of tho property put to sale was known to everyone concerned\n\ntmd therefore it was difficult to posit that the judgment-debtor had no\n\nalcable interest in the property."}}, {"text": "section 293", "label": "PROVISION", "start_char": 24319, "end_char": 24330, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 293", "label": "PROVISION", "start_char": 25130, "end_char": 25136, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 25140, "end_char": 25167, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 287", "label": "PROVISION", "start_char": 25382, "end_char": 25388, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 293", "label": "PROVISION", "start_char": 25536, "end_char": 25542, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 25552, "end_char": 25558, "source": "ner", "metadata": {"in_sentence": "In the Bombay Case the errors in the two proclamations were so confusing that the oeficiency in the price could oot, it ."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 27809, "end_char": 27836, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1975_3_735_742_EN", "year": 1975, "text": "UNION OF INDIA & ORS.\n\nSETH R. DALMIA\n\nFebrµary 27, 1975.\n\n7 35\n\n[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ .J\n\nIncome Tax Act 1961-Sec. 148.\n\nC'ntral Board of Direct Taxes (Regulation of Tra11saction of Busi11ess) R111.ts 1964-Rule 4-Whctlrer approra/ by Ccnt; a/ Go\\'ernme11t cf distrilmtion\n\nof the busi11ess of board by Chairman m11.1t be expressed in tire sl1ape of an oriu.\n\n6 notices were issued to the respondent under s. 148 of the Income Tax Act for reopening the assessments for 3 assessment years.\n\nThe notices recited that they were issued after obtaining the necessary satisfaction of the Central Board of Direct Taxes. The respondent filed a writ petition in t!ie High Court challenging the said notices inter a/ia 011 the ground that sanctio11' of the Central Board of Direct Taxes was not taken before the notices were issued as required 9y sec. 151 of the Ah:t.\n\nThe High Court accepted the •said contention and did not decide the other grounds raised in the petition. The High Court held that on a reading of the affidavit made by J. P. Singh, Chairman of Central Board of Direct Taxes it wou.ld appear that the work which had been done by the Chairman of the Central Board was transferred to the Member of. the Board and the approval of th~ Secretary to the Government of India was obt.aincd for this transfer or allocation of work.\n\nThe High Court, however, found that the averments in the affidavit were not in line with the ofliec notes in the relevant file.\n\nThe High Court also held that as no formal order was paS'>ed changing the allocation with the previous appmval of the Central Government, the sanction issued by Central Board of Direct Taxes was without jurisdiction and authority.\n\nOn appeal by Special Leave it was contended before this Cot•rt that r. 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1954 provides that the Chairman of the Central Board may with the previous approval of the Central Government distribu'e the business of the. Board between himself Mid the other members and may specif) the cases o; class of cases which shall be considered jointly by the Board. lt was contended that J. P. Singh in his affidavit cka.ly stated that on 30-3-1964 he suggested to ]'firayan Rao a member of the Cen'.ra\\ Board of Di; ect Taxes that he should take up the work of ac.:ording sanction of the Board unde: s. 151 ot the Act which was being done by the Chairman. It was further stated in that affidavit that on June 18, 1964 be personally discussed the proposal wi!h the Secretaiy to the Government of India in the Ministry of Finance and that the secretary approved the said proposl and that a note was made by him on 18th June,\n\n1%4 to the effect that the mattr was discussed with the Secretary and that it is just a minor internal arrangement and no formal order was necessary.\n\nAllowing ihe appeal,\n\nHELD. (1) The High Court erred in not taking not~ of the affidavit of P. G. Gandhi Under Secretary Central Board of Direct Taxes, in which it is stated that all assessment work of income tax was assigned to Narayan Rao with the approval of the Centrnl Government.\n\nIn view of the statements in the spedfic affidavit of J. P. Singh and P. G. Gandhi it cannot be said that the offire notes were not in line with tbe averments in the affidavits.\n\n[739H;\n\n740C]\n\n(2) It wa~ not necessary to P-xpress the approval of the Central Government formally in the shape of an order. [741HJ\n\nFonseca Private Limited and Others v. L. C. Gupta & Others, (1973) I S.C.C. 4 18, distinguished.\n\nIn that. case what was challenged was the order passed by an officer who A was not entitled to J>aSs it under the rules of business and the decision has no relevance on the question whether on the circumst:mces of the present case, approval of the Cenral Government should have been recorded in a formal order. [741C]\n\n(3) The distribut!on •of the business of the Board by the Chairman is not a sub-delegated leg1slat1on and need not be expressed in a formal document; that the allo=ation of the business and approval are matters of internal arrangement B not affecting any one's rights at that stage. Since the appeals succeed on other grounds the Court diJ not go into the question whether the provisions of tile Central Board of Direct Taxes (Validation of Proceedings) Act 1971 afforded protection to the action taken. [741E-F; 742E] '\n\nC1v1L APPF.LLATE JuRJsDICTION : Civil Appeals Nos. 1107- 1112 (NI) of 1970.\n\n1 From the judgment and order dated the 24th March, 1970 of the Delhi High Court In Civil Writ .Petition Nos. 663D and 6680 of 1965.\n\nS •. T. Desai, T. A. Ramchandran & S. P. Nayar, for the appellants.\n\nL. M. Singhvi and Bishambar Lal, for the respondent.\n\nThe Judgment of the Court was delivered by D\n\nGUPTA, J.-These six appeals by certificates granted by the High Court of Delhi arise out of six writ petitions filed by the respondent before us challenging the validity of six ootices dated September 7, 1965 issued under sec. 148 of the Income-Tax Act, 1961 (hereinafter referred to as the Act). The notices relate to . the assessment years E 1949'-50 1950-51 and 1951-52, the corresponding accounting years\n\nending bn the 30th September of 1948, 1949 and 1950 respectively.\n\nThree of the notices were issued to the petitioner in his individual capacity and the other three were served on him as a member of an association of persons. The petitioner had been assessed as an individual for the aforesaid assessment years in accordance with the provisions of the Indian Income-Tax Act 1922. Thereafter a Comm.is- F sion known as Vivian Bose Commission was appointed to enquire into the affairs of various companies with which the appellant was alleged to have been associated._ On the facts disclosed in the report of enquiry, the Jncome1-tax Officer, Special Investigation Circle A, New Delhi, issued the aforesaid two sets of notices to the petitioner under sec. 148 of the Act. The notices informed the petitioner that these were issued \"after obtaining the necessary satisfaction of the G Central Board of Direct Taxes, New Delhi\". This claim was questioned by the petitioner in the High Court and one of the grounds on which . the validity of the notices was challenged was that sanction of the Central Board of Direct Taxes had not been taken before the notices were isued as req:iired by sec. 151 of the Act. The High Court accea:ing this contention queshed all the six notices served OR the petitioner and by issuing a writ of prohibition restrained the aooel- H !ants, the Uniot1i of India, the Central Board of Direct Taxes, New Delhi, and the Income-tax Officer, Special Investigation Circle A, New\n\nDelhi from taking any action upon these notices. As the writ petitions' succeeded on this ground, the High Court did not consider the othe, r objections to the notices raised in the petitions. The pro-- priety of that decision is in question in these appeals.\n\nThe relevant part of sec. 151 of the Act reads as follows:-\n\n\"151.\n\nSanction' for issue of notice.-(l) No notice shall be issued under section 148 after the expiry of eight years from the end. of the relevant assessment year, unless the Board is satisfied on the reasons recorded by the Incometax Officer that it is a fit case for the issue of such notice.\n\n(2) x x x x\"\n\nSection 4(1) of the Central Boards of Revenue Act, 1963 provides:\n\n\"The Central Government may make rules for the purposes of regulating the 1 transaction of business by each Board and every order made or act done in accordance with such rules shall be deemed to be the order or act, a5 the case may be, of the Board.\" \"Board\" as defined inl sec. 2 of this Act means the Central Board of Direct Taxes or the Central Board of Excise and Customs. Rule 4 of the Central Board of Direct Taxes (Regulations of Transaction of Business) Ru!es, 1964 is in these terms :\n\n\"The Chairman may, by an order made with the previous approval of the Central Government, distribute the busilliess of the Board among himself and the other Members allld specify the cases or class of cases which shall be considered jointly by the Board.\"\n\nWhat happened in this case was that the Income-tax Officer put up the case of the respondent to the Central .Board of Direct Taxes by a comprehensive note prepared by him and Shri S. 4.. L. Narayana Row, the only Member of the Board besides the Ch irman, on being satisfied on the reasons recorded by the Income-tax Officer that for each of the assessment years in both capacities of the respondent a fit case had been made out for the issue of a notice under sec. 148 of the Act, the impugned notices were issued to the respondent. In support of his case that sanction of the Board had not been obtained, the respondent relied on the Office Order dated January 1, 1964 annexed to the affidavit of Shri P. G. Gandhi, Under Secretary Central Board of Direct. Taxes, led in er to the writ petitions, which sets out the distribution of r between the Chairman and the Member of the Central Boar of Direct Taxe~: . I.n this document, entry No. 7 in the lisB0f ; woK allotted to the Chairman reads : \"all assessment work ofincome-tix''. It was cori•ended that Shri: Narayana Row had therefore no .auP.liority to deal with cases for reopeninirof-.....,..\n\nasse.ssments a!ld a~ sucJ.ilthe impugned notices. issued upon his satis- ........_ faction. w_er~ mval!d !, l'I paragraph 5 of the affidavit of Shri P. .G.\n\nGandhi, 1t 1s adm1ttef! that \"all assessment work of Income-tax\" had been assie~ to t.J;\\e Chairman under office order dated January 1, 1964 which mclur!fed matters relating to the reopening of assessments / { I \\\n\nunder sec. 34 of the Income-Tax Act, 1922 or under sec. 147 of the Income-Tax Act, 1961, but the paragraph adds that \"later wit'.1 the approval of the Central Government this item of work was as:'1gne.d to the Member of the Board Shri S. A. L. Narayana Row who m thts case accorded the sanction\".\n\nAn affidavit atirmed by Shri J. P. Singh who at the relevant time was the Chairman of the Central Board of Direct Taxes and ex-oflicio Additional S1:cretary to the Govcrnmont of India in the Ministry of Finance, was aiso filed on behalf of the appellants. Paragraphs 3 to 7 of Shri Singh's affidavit state how Shri Narayana Row came to d1:al with the cases relating to the reopening of assessme.nts.\n\nThese paragraphs read as follows :\n\n''3. That on 30-3 64 I suggested to Shri\n\nS. A. L.\n\nNarayana Row, the then Member of the Central Board of Direct Taxes that he should take up the work of according sanction of the Board under Section 151 ( 1) for reopening of assessments under Section 14 7 of the Income-Tax Act, 1961 to which he consented.\n\n4. Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 envisaged\n\nthat Chairman may by an order made with the previous approval of the Central Government distribute the business of the Board among himself and the other members.\n\nThe approval regarding the transfer of work relating to sanction un:der section 151(1) of Income-Tax Act from the Chairman to the Member Central Board of Direct Taxes was accordingly referred to by me to the Secretary, Ministry of Finance (Department of Revenue & Expenditure) on 9-6-1964.\n\n5. Tiat on 18-61964. I personally discussed the proposal rega ding transfer of work from myself to the Member, Central Board of Direct Taxes with Shri V. T. Dehejia, the then Secretary of the Government of India, Ministry of Finance (Department of Revenue & Expediture).\n\n6. That Shri V. T. Dehejia, the then Secretary to the Government of India, Ministry of Finance (Department of Revenue & Expcmgture) approved the said proposal to which effect a note wa~ by me on 18-6-1964.\n\n7. That pursuant to the ci~ assigned to him under Section- 147 of the Income-Tax )\\ct, 1961 in the aforesaid Rule 4 of the Central Board of Dirt Taxes (Regulation of Transaction of BusiIJess) Rules 1-..964, Shri\n\nS. A. L.\n\nNarayana Row, Member, Central Boa:..d of Direct Taxes gave sanction for the reopening of the 'j!Ssessments under\n\nSection 147 of the Income-Tax Act, 196t in the aforesaid case on 11-8-1965 .\" \\\n\n\\ ' \\\n\nThe High Court observed that on a reading of the affidavit. afli.rmed bv Shri J. P. Singh \"it would appear that the work which had tiil then been done by the Chairman was to be transferred to the Member and approval of the 'secretary to the Government of India was obtained for this transfer or allocation of work.\" Th('.\n\nHigh Court however found that the averments in the affidavit \\\\'ere \"net in line\" with the office notes in the relevant file which aprears to have been made available to the learned Judges of the High Court who heard these writ petitions.\n\nWe have also looked into the copies of these oJlice-notes which are on record. lt appears that on March 13, 1964 Shri .I. P. Singh, Chairman of the Board, recmded the following note : ·\n\n\"M(I&ED) may also consider whether he coufd take up th.:\n\ncases for sanction of reopening of assessments (old section 34).\"\n\nThis was obviously a note for consideration of the other Ml:mbcr of the Board who, on the next day, recorded his consent to this prorosal in the following words : ·\n\n\"I will take up cases of reopening of assessment als0.''\n\nBelow the sentence conveying Shri Row's assent to the proposal, the Chairman wrote \"ThankS:\".\n\nThe matter however did not rest there.\n\nOn May 14, 1964 the following note was put up by Shri B. B.\n\nGhosh, Under Secretary :\n\n\"Rule 4 of the Central Hoard of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 envisage that Chairman may by an order made with the previous approval of the Central Government distribute the business of the Board among himself and the other Members.\n\nAccordingly, the Office Order already issued in the matter will require amendment.\n\nDraft D.O. -is submitted for consideratio1i.\n\nWe imiy\n\nalo inform the Heads 'Jf Departments under the Board about the decision. Draft letter is submitted for approval.\"\n\nThe last relevant note on this subject reads :\n\n\"Discussed with Secy. (R&E). It is just a minor il'lernal arrangement.\n\nNo formal order is necessary.\"\n\nThis is signed by Shri J. P. Singh and bears the date 18-6-64.\n\nThe High Court held that a~: no formal order was pas; cd \"chanrring the allocation with the previous approval of the Central Government, the sanction as granted by Shri 'S. A. L. Narayana Row is without jurisdiction and authorify\".\n\nIt is not quite clear whether the High Court was not satisfied that Shri J. P. Singh's proposal for a change in the allocation of work was at all approved by the G, wernment or that in the absence of a formal order to that effect the approval was of no consequence.\n\nThe High Court does not appear to have taken any rrote of the affidavit of Shri P. G. Gandhi in paragraph 5 0( which it is stated that all assessment work of Inome-tax was assigned to Shri Narayana Row with the approval of the Central\n\n...\n\nGoverwnent.\n\nFrom the affidavit of Shri J. P. Singh, the then Chairman of the. Central Board of Direct Taxes, part of which we have\n\nextracted above, it appears that Shri Singh had referred to the Secretary, Ministry of Finance (Department of Revenue and Expenditure) the proposal for transfer of work relating. to sanction under sec. 151(1) of the Act from the Chairman to the Member of the Board, that Shri Singh personally discussed the matter with Shri V.\n\nDehejia who was then the Secretary, Ministry of Finance, and that Shri Dehejia approved the proposal. Shri J. P. Singh'.s affidavit adds that the note he made in the office file on June 18, 1964-\"Discussed with Secy. (R&E). It is just a minor internal arrangement. No formal order is necessary.\"-refers to these facts. In the face of the statements appearing in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that the work relating to the reopening of assessments W:\\S assigned to Shri Row with the previous approval of the Central Government, it is difficult to see how it can be said that the office notes were not in line with the averments in the affidavits.\n\nThe High Court did not disbelieve the statement of Shri J. P. Singh that h~ had di•- cussed the proposal with Shri V. T. Dehejia, who approved the proposal. Possibly, the absence of a formal order expressing the approval led to the observation that Shri Singh's affidavit was not in line with the office notes and also the ultimate finding that the notices issued upon the satisfaction of the member of the Board was \"without jurisdiction and authority\".\n\nDr. Singhvi, learned counsel for the respondent, contendd (1) that the material on record did not prove beyond doubt that the Central Government had approved the proposal of the Chairman to alter the original distribution of work and (2) that in any event the law required the. approval to be expressed in the 'hape of a formal order. Referring fo the office note of the Chairman dated June 18, 1964, Dr .. Singhvi submitted that it was not clear from thi~\n\nnote what exactly was considered unnecessary-a formal order expressing the approval, or getting the proposed alteration approved by the Central Government ? It was argued that as the suggested alteration was considered \"just a n1inor internal arrangement,\" it \\Vas likely that the Chairman thought that no prior approval of th\" Central Government was necessary before the altered arrangement was put into operation, in which case the notices would be -.invalid in view of Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of.Business) Rules, 1964.\n\nHowever, it seems to us, when :he note said \"no formal order is necessary.\" it could not possibly mean that approval of the Central Government was unnecessary, and we have no doubt that it meant that no fonnal order conveying the approval was necessary.\n\nRegarding the statements in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that all work relating to the reopening of assessments was assigned to Shri Narayana Row with the approval of the Central Government, Dr. Singhvi pointed out that these statements had been verified by Shri J. P. Singh as true to his. hrowledge \"derived from records in the possession of the Central Board of Direct Taxes\" and by Shri P. G. Gandhi as \"based on the. information derived from record in possession of the Board\".\n\nIt was argued that as the records did not disclose any order of appro- val by the Central Government, the said statements were of no value.\n\n-'G\n\nIt seems .to us that the verifica.tion of the statements in Shri J. P.\n\nSingh's affidavit clearly suggests that the facts stated therein were true to his knowledge which the records also bear out.\n\nAs stated already, the High Court did not question the truth of the facts stated in Shri Singh's affidavit, nor do we find any reason to do so.\n\nWe have no doubt that the office note made by Shri J. P. Singh on June 18, 1964 supports the statements made in his affidavit.\n\nThe next question is whethe{ the approval should have been formally expressed in the shape of an order.\n\nOn this question Dr.\n\nSinghvi referred to the decision of this Court in Fonseca (P) Ltd., & Ors. v. L. C. Gupta & Ors. (1) In that case an order made by the Deputy Secretary to the Government of India, Ministry of Works and Housing, who was not empowered to make such an order under the Rules of Business, was held to be illegal, ineffective and void.\n\nWe do not think this decision has any relevance. Thr authority of Mr. V. T. Dehejia, Secretary, Ministry of Finance (Department of Reveuue and Expenditure) to approve the proposal for the Central Government was never questioned, nor the power of the Chairman to distribute the business of the Board between himself and the other D . Member with the previous approval of the Central Government. We\n\nhave already held that upon the material on record such approval appears to have been given Fonseca's case (supra) is hardly of any assistance on the question whether in this case the approval of the Cl?ntral Government should have been recorded in a formal order. Dr.\n\nSinghvi characterised the distribution of the business of the Board by\n\nthe Chairman as suh delegated legislation and referred to a number of authorities to show that the law required publication of such subdelegated legislation which implied that it must be expressed in a formal document. It was submitted that this was necessary to enable the persons affected by such sub delegated legislation to ascertain what the legislation was. We do not think that the distribution of work by the Chairman of the Board can be equated with legislation.\n\nThe allocation of business and the approval are matters of internal arrangement not affecting anyone's rights. llliitially the Board consisting of the Chairman and the member had the jurisdiction to deal with the matter in question. Thereafter, in exercise of the power conferred by Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules. 1964 the Chairman with the approval of the Central Government distributed the business of the Board between himself and the member keeping all assessment work of income-tax to himself. Then, again with the approval of the Central Government, he assi!med this work to the member. Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 does not prescribe any sriecial or particuhr manner in which the, aporoval is to be recorded. The approval given at that stage does not touch the rights of the assessc:es. The fact that approval was given must of course be oroved nd. in our view. that\n\nhs been done in this case; no question of publication of the order --- ----- en [l973J 1 sec 418.\n\n' ' '\n\nof allocation and the approval accorded to it by the Centrl Government can therefore arise. The office file does not also disclose any formal order approving the original distribution of work as b.::twee11 'the Chairman and the member of the Board. It appears from the office note of January 1. 1964 that a draft showing the allocation of work was signed by Shri J. P. Singh and Shri V. T. Dehejia, Secretary of the Ministry of Finance (Department of Revenue a'1d Expenditure) appended his signature below Shri Singh's. This shows clearly that a formal expression of the approval was not considered necessary. If there is no reason to doubt the truth of the statements made in Shri J. P. Singh's affidavit,. and we think there is nom:, then the legality of the impugned notices under sec. 148 ofthe Ac:t cannot be challenged on the ground that they were issued upon the satisfaction of Shri Narayana Row.\n\nOn behalf of the appellants our attention was also drawn to the Central Board of Direct Taxes (Validation of Proceedings) Act, 1971 (No. 37 of 1971) which provides, inter alia, that no action taken by the Chairman and other members of the Board, either singly or jointly, without having been validly entrusted with the powers or duties in that behalf in accordane with the provisions of the Central Boards of Revenue Act, 1963 or the rules made thereunder shall be 'deemed to be invalid or ever to have been invalid on that ground.\n\nAs in our opinion the impugned notices were issued in due compliance with the requirements of Rule 4 of Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964. we do not find it newssary to consider the provisions of this Act for the purpose of these appeals.\n\nThe appeals are accordingly allowed and the Judgment and orders appealed from are set aside. The High Court will now proceed to di~\n\npoe of the :Nrit oetitions in accordance with Jaw on the other )l; l'ounds\n\nraised therem. The appellants will entitled to their costs in this Courtone hearing fee.\n\nP.H.P.\n\nAppeals allowed.", "total_entities": 88, "entities": [{"text": "UNION OF INDIA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "SETH R. DALMIA", "label": "RESPONDENT", "start_char": 23, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "SETH R. DALMIA", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 66, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 85, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ", "label": "JUDGE", "start_char": 104, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Income Tax Act 1961", "label": "STATUTE", "start_char": 124, "end_char": 143, "source": "regex", "metadata": {}}, {"text": "Sec. 148", "label": "PROVISION", "start_char": 144, "end_char": 152, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act 1961", "statute": "Income Tax Act 1961"}}, {"text": "s. 148", "label": "PROVISION", "start_char": 439, "end_char": 445, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act 1961", "statute": "Income Tax Act 1961"}}, {"text": "Central Board of Direct Taxes", "label": "ORG", "start_char": 615, "end_char": 644, "source": "ner", "metadata": {"in_sentence": "The notices recited that they were issued after obtaining the necessary satisfaction of the Central Board of Direct Taxes."}}, {"text": "sec. 151", "label": "PROVISION", "start_char": 870, "end_char": 878, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act 1961", "statute": "Income Tax Act 1961"}}, {"text": "J. P. Singh", "label": "LAWYER", "start_char": 1062, "end_char": 1073, "source": "ner", "metadata": {"in_sentence": "The High Court held that on a reading of the affidavit made by J. P. Singh, Chairman of Central Board of Direct Taxes it wou.ld appear that the work which had been done by the Chairman of the Central Board was transferred to the Member of.", "canonical_name": "J. P. Singh'.s"}}, {"text": "Government of India", "label": "ORG", "start_char": 1290, "end_char": 1309, "source": "ner", "metadata": {"in_sentence": "the Board and the approval of th~ Secretary to the Government of India was obt.aincd for this transfer or allocation of work."}}, {"text": "Central Government", "label": "ORG", "start_char": 1613, "end_char": 1631, "source": "ner", "metadata": {"in_sentence": "The High Court also held that as no formal order was paS'>ed changing the allocation with the previous appmval of the Central Government, the sanction issued by Central Board of Direct Taxes was without jurisdiction and authority."}}, {"text": "30-3-1964", "label": "DATE", "start_char": 2235, "end_char": 2244, "source": "ner", "metadata": {"in_sentence": "lt was contended that J. P. Singh in his affidavit cka.ly stated that on 30-3-1964 he suggested to ]'firayan Rao a member of the Cen'.ra\\ Board of Di; ect Taxes that he should take up the work of ac.:ording sanction of the Board unde: s. 151 ot the Act which was being done by the Chairman."}}, {"text": "firayan Rao", "label": "OTHER_PERSON", "start_char": 2263, "end_char": 2274, "source": "ner", "metadata": {"in_sentence": "lt was contended that J. P. Singh in his affidavit cka.ly stated that on 30-3-1964 he suggested to ]'firayan Rao a member of the Cen'.ra\\ Board of Di; ect Taxes that he should take up the work of ac.:ording sanction of the Board unde: s. 151 ot the Act which was being done by the Chairman."}}, {"text": "s. 151", "label": "PROVISION", "start_char": 2397, "end_char": 2403, "source": "regex", "metadata": {"statute": null}}, {"text": "June 18, 1964", "label": "DATE", "start_char": 2501, "end_char": 2514, "source": "ner", "metadata": {"in_sentence": "It was further stated in that affidavit that on June 18, 1964 be personally discussed the proposal wi!h the Secretaiy to the Government of India in the Ministry of Finance and that the secretary approved the said proposl and that a note was made by him on 18th June,\n\n1%4 to the effect that the mattr was discussed with the Secretary and that it is just a minor internal arrangement and no formal order was necessary."}}, {"text": "P. G. Gandhi", "label": "LAWYER", "start_char": 2964, "end_char": 2976, "source": "ner", "metadata": {"in_sentence": "1) The High Court erred in not taking not~ of the affidavit of P. G. Gandhi Under Secretary Central Board of Direct Taxes, in which it is stated that all assessment work of income tax was assigned to Narayan Rao with the approval of the Centrnl Government.", "canonical_name": "P. .G.\n\nGandhi"}}, {"text": "Narayan Rao", "label": "OTHER_PERSON", "start_char": 3101, "end_char": 3112, "source": "ner", "metadata": {"in_sentence": "1) The High Court erred in not taking not~ of the affidavit of P. G. Gandhi Under Secretary Central Board of Direct Taxes, in which it is stated that all assessment work of income tax was assigned to Narayan Rao with the approval of the Centrnl Government.", "canonical_name": "Narayana Row"}}, {"text": "Cenral Government", "label": "ORG", "start_char": 3818, "end_char": 3835, "source": "ner", "metadata": {"in_sentence": "case what was challenged was the order passed by an officer who A was not entitled to J>aSs it under the rules of business and the decision has no relevance on the question whether on the circumst:mces of the present case, approval of the Cenral Government should have been recorded in a formal order. ["}}, {"text": "T. Desai", "label": "LAWYER", "start_char": 4627, "end_char": 4635, "source": "ner", "metadata": {"in_sentence": "S •. T. Desai, T. A. Ramchandran & S. P. Nayar, for the appellants."}}, {"text": "T. A. Ramchandran", "label": "LAWYER", "start_char": 4637, "end_char": 4654, "source": "ner", "metadata": {"in_sentence": "S •. T. Desai, T. A. Ramchandran & S. P. Nayar, for the appellants."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4657, "end_char": 4668, "source": "ner", "metadata": {"in_sentence": "S •. T. Desai, T. A. Ramchandran & S. P. Nayar, for the appellants."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 4691, "end_char": 4704, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and Bishambar Lal, for the respondent."}}, {"text": "Bishambar Lal", "label": "LAWYER", "start_char": 4709, "end_char": 4722, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and Bishambar Lal, for the respondent."}}, {"text": "D\n\nGUPTA", "label": "JUDGE", "start_char": 4788, "end_char": 4796, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by D\n\nGUPTA, J.-These six appeals by certificates granted by the High Court of Delhi arise out of six writ petitions filed by the respondent before us challenging the validity of six ootices dated September 7, 1965 issued under sec."}}, {"text": "sec. 148", "label": "PROVISION", "start_char": 5013, "end_char": 5021, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 5029, "end_char": 5049, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-Tax Act", "label": "STATUTE", "start_char": 5560, "end_char": 5574, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Vivian Bose Commission", "label": "ORG", "start_char": 5619, "end_char": 5641, "source": "ner", "metadata": {"in_sentence": "Thereafter a Comm.is- F sion known as Vivian Bose Commission was appointed to enquire into the affairs of various companies with which the appellant was alleged to have been associated._"}}, {"text": "New Delhi", "label": "GPE", "start_char": 5874, "end_char": 5883, "source": "ner", "metadata": {"in_sentence": "On the facts disclosed in the report of enquiry, the Jncome1-tax Officer, Special Investigation Circle A, New Delhi, issued the aforesaid two sets of notices to the petitioner under sec."}}, {"text": "sec. 148", "label": "PROVISION", "start_char": 5950, "end_char": 5958, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1961", "statute": "the Income-Tax Act, 1961"}}, {"text": "sec. 151", "label": "PROVISION", "start_char": 6385, "end_char": 6393, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Board of Direct Taxes, New Delhi", "label": "ORG", "start_char": 6594, "end_char": 6634, "source": "ner", "metadata": {"in_sentence": "ants, the Uniot1i of India, the Central Board of Direct Taxes, New Delhi, and the Income-tax Officer, Special Investigation Circle A, New\n\nDelhi from taking any action upon these notices."}}, {"text": "sec. 151", "label": "PROVISION", "start_char": 6983, "end_char": 6991, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 7097, "end_char": 7108, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4(1)", "label": "PROVISION", "start_char": 7334, "end_char": 7346, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Boards of Revenue Act, 1963", "label": "STATUTE", "start_char": 7354, "end_char": 7389, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "sec. 2", "label": "PROVISION", "start_char": 7676, "end_char": 7682, "source": "regex", "metadata": {"linked_statute_text": "the Central Boards of Revenue Act, 1963", "statute": "the Central Boards of Revenue Act, 1963"}}, {"text": "Central Board of Direct Taxes or", "label": "ORG", "start_char": 7705, "end_char": 7737, "source": "ner", "metadata": {"in_sentence": "2 of this Act means the Central Board of Direct Taxes or the Central Board of Excise and Customs."}}, {"text": "Central Board of Excise and Customs.", "label": "ORG", "start_char": 7742, "end_char": 7778, "source": "ner", "metadata": {"in_sentence": "2 of this Act means the Central Board of Direct Taxes or the Central Board of Excise and Customs."}}, {"text": "Central .Board of Direct Taxes", "label": "ORG", "start_char": 8254, "end_char": 8284, "source": "ner", "metadata": {"in_sentence": "What happened in this case was that the Income-tax Officer put up the case of the respondent to the Central .Board of Direct Taxes by a comprehensive note prepared by him and Shri S. 4.. L. Narayana Row, the only Member of the Board besides the Ch irman, on being satisfied on the reasons recorded by the Income-tax Officer that for each of the assessment years in both capacities of the respondent a fit case had been made out for the issue of a notice under sec."}}, {"text": "S. 4", "label": "PROVISION", "start_char": 8334, "end_char": 8338, "source": "regex", "metadata": {"linked_statute_text": "the Central Boards of Revenue Act, 1963", "statute": "the Central Boards of Revenue Act, 1963"}}, {"text": "L. Narayana Row", "label": "OTHER_PERSON", "start_char": 8341, "end_char": 8356, "source": "ner", "metadata": {"in_sentence": "What happened in this case was that the Income-tax Officer put up the case of the respondent to the Central .Board of Direct Taxes by a comprehensive note prepared by him and Shri S. 4.. L. Narayana Row, the only Member of the Board besides the Ch irman, on being satisfied on the reasons recorded by the Income-tax Officer that for each of the assessment years in both capacities of the respondent a fit case had been made out for the issue of a notice under sec."}}, {"text": "sec. 148", "label": "PROVISION", "start_char": 8614, "end_char": 8622, "source": "regex", "metadata": {"statute": null}}, {"text": "January 1, 1964", "label": "DATE", "start_char": 8808, "end_char": 8823, "source": "ner", "metadata": {"in_sentence": "In support of his case that sanction of the Board had not been obtained, the respondent relied on the Office Order dated January 1, 1964 annexed to the affidavit of Shri P. G. Gandhi, Under Secretary Central Board of Direct."}}, {"text": "P. .G.\n\nGandhi", "label": "LAWYER", "start_char": 9452, "end_char": 9466, "source": "ner", "metadata": {"in_sentence": "l'I paragraph 5 of the affidavit of Shri P. .G.\n\nGandhi, 1t 1s adm1ttef!", "canonical_name": "P. .G.\n\nGandhi"}}, {"text": "sec. 34", "label": "PROVISION", "start_char": 9681, "end_char": 9688, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act, 1922", "label": "STATUTE", "start_char": 9696, "end_char": 9716, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "sec. 147", "label": "PROVISION", "start_char": 9726, "end_char": 9734, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1922", "statute": "the Income-Tax Act, 1922"}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 9742, "end_char": 9762, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. A. L. Narayana Row", "label": "LAWYER", "start_char": 9910, "end_char": 9931, "source": "ner", "metadata": {"in_sentence": "147 of the Income-Tax Act, 1961, but the paragraph adds that \"later wit'.1 the approval of the Central Government this item of work was as:'1gne.d to the Member of the Board Shri S. A. L. Narayana Row who m thts case accorded the sanction\".", "canonical_name": "S. A. L.\n\nNarayana Row"}}, {"text": "S1", "label": "PROVISION", "start_char": 10119, "end_char": 10121, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1961", "statute": "the Income-Tax Act, 1961"}}, {"text": "Singh", "label": "OTHER_PERSON", "start_char": 10255, "end_char": 10260, "source": "ner", "metadata": {"in_sentence": "Paragraphs 3 to 7 of Shri Singh's affidavit state how Shri Narayana Row came to d1:al with the cases relating to the reopening of assessme.nts.", "canonical_name": "Singhvi"}}, {"text": "30-3 64", "label": "DATE", "start_char": 10423, "end_char": 10430, "source": "ner", "metadata": {"in_sentence": "That on 30-3 64 I suggested to Shri\n\nS. A. L.\n\nNarayana Row, the then Member of the Central Board of Direct Taxes that he should take up the work of according sanction of the Board under Section 151 ( 1) for reopening of assessments under Section 14 7 of the Income-Tax Act, 1961 to which he consented."}}, {"text": "S. A. L.\n\nNarayana Row", "label": "RESPONDENT", "start_char": 10452, "end_char": 10474, "source": "ner", "metadata": {"in_sentence": "That on 30-3 64 I suggested to Shri\n\nS. A. L.\n\nNarayana Row, the then Member of the Central Board of Direct Taxes that he should take up the work of according sanction of the Board under Section 151 ( 1) for reopening of assessments under Section 14 7 of the Income-Tax Act, 1961 to which he consented.", "canonical_name": "S. A. L.\n\nNarayana Row"}}, {"text": "Section 151", "label": "PROVISION", "start_char": 10602, "end_char": 10613, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1961", "statute": "the Income-Tax Act, 1961"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 10654, "end_char": 10664, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1961", "statute": "the Income-Tax Act, 1961"}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 10674, "end_char": 10694, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 151(1)", "label": "PROVISION", "start_char": 11064, "end_char": 11078, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1961", "statute": "the Income-Tax Act, 1961"}}, {"text": "Income-Tax Act", "label": "STATUTE", "start_char": 11082, "end_char": 11096, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "9-6-1964", "label": "DATE", "start_char": 11272, "end_char": 11280, "source": "ner", "metadata": {"in_sentence": "The approval regarding the transfer of work relating to sanction un:der section 151(1) of Income-Tax Act from the Chairman to the Member Central Board of Direct Taxes was accordingly referred to by me to the Secretary, Ministry of Finance (Department of Revenue & Expenditure) on 9-6-1964."}}, {"text": "Tiat", "label": "RESPONDENT", "start_char": 11286, "end_char": 11290, "source": "ner", "metadata": {"in_sentence": "Tiat on 18-61964."}}, {"text": "V. T. Dehejia", "label": "LAWYER", "start_char": 11434, "end_char": 11447, "source": "ner", "metadata": {"in_sentence": "I personally discussed the proposal rega ding transfer of work from myself to the Member, Central Board of Direct Taxes with Shri V. T. Dehejia, the then Secretary of the Government of India, Ministry of Finance (Department of Revenue & Expediture).", "canonical_name": "V. T. Dehejia"}}, {"text": "V. T. Dehejia", "label": "LAWYER", "start_char": 11568, "end_char": 11581, "source": "ner", "metadata": {"in_sentence": "That Shri V. T. Dehejia, the then Secretary to the Government of India, Ministry of Finance (Department of Revenue & Expcmgture) approved the said proposal to which effect a note wa~ by me on 18-6-1964.", "canonical_name": "V. T. Dehejia"}}, {"text": "Section 147", "label": "PROVISION", "start_char": 12099, "end_char": 12110, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act", "label": "STATUTE", "start_char": 12118, "end_char": 12132, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 13, 1964", "label": "DATE", "start_char": 12848, "end_char": 12862, "source": "ner", "metadata": {"in_sentence": "lt appears that on March 13, 1964 Shri .I. P. Singh, Chairman of the Board, recmded the following note : ·\n\n\"M(I&ED) may also consider whether he coufd take up th.:"}}, {"text": ".I. P. Singh", "label": "OTHER_PERSON", "start_char": 12868, "end_char": 12880, "source": "ner", "metadata": {"in_sentence": "lt appears that on March 13, 1964 Shri .I. P. Singh, Chairman of the Board, recmded the following note : ·\n\n\"M(I&ED) may also consider whether he coufd take up th.:"}}, {"text": "section 34", "label": "PROVISION", "start_char": 13047, "end_char": 13057, "source": "regex", "metadata": {"statute": null}}, {"text": "Row", "label": "OTHER_PERSON", "start_char": 13320, "end_char": 13323, "source": "ner", "metadata": {"in_sentence": "Below the sentence conveying Shri Row's assent to the proposal, the Chairman wrote \"ThankS:\"."}}, {"text": "May 14, 1964", "label": "DATE", "start_char": 13424, "end_char": 13436, "source": "ner", "metadata": {"in_sentence": "On May 14, 1964 the following note was put up by Shri B. B.\n\nGhosh, Under Secretary :\n\n\"Rule 4 of the Central Hoard of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 envisage that Chairman may by an order made with the previous approval of the Central Government distribute the business of the Board among himself and the other Members."}}, {"text": "B. B.\n\nGhosh", "label": "OTHER_PERSON", "start_char": 13475, "end_char": 13487, "source": "ner", "metadata": {"in_sentence": "On May 14, 1964 the following note was put up by Shri B. B.\n\nGhosh, Under Secretary :\n\n\"Rule 4 of the Central Hoard of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 envisage that Chairman may by an order made with the previous approval of the Central Government distribute the business of the Board among himself and the other Members."}}, {"text": "18-6-64", "label": "DATE", "start_char": 14237, "end_char": 14244, "source": "ner", "metadata": {"in_sentence": "This is signed by Shri J. P. Singh and bears the date 18-6-64."}}, {"text": "S. A. L. Narayana Row", "label": "LAWYER", "start_char": 14417, "end_char": 14438, "source": "ner", "metadata": {"in_sentence": "The High Court held that a~: no formal order was pas; cd \"chanrring the allocation with the previous approval of the Central Government, the sanction as granted by Shri 'S. A. L. Narayana Row is without jurisdiction and authorify\".", "canonical_name": "S. A. L.\n\nNarayana Row"}}, {"text": "J. P. Singh", "label": "LAWYER", "start_char": 15028, "end_char": 15039, "source": "ner", "metadata": {"in_sentence": "From the affidavit of Shri J. P. Singh, the then Chairman of the.", "canonical_name": "J. P. Singh'.s"}}, {"text": "sec. 151(1)", "label": "PROVISION", "start_char": 15318, "end_char": 15329, "source": "regex", "metadata": {"statute": null}}, {"text": "V.\n\nDehejia", "label": "OTHER_PERSON", "start_char": 15445, "end_char": 15456, "source": "ner", "metadata": {"in_sentence": "151(1) of the Act from the Chairman to the Member of the Board, that Shri Singh personally discussed the matter with Shri V.\n\nDehejia who was then the Secretary, Ministry of Finance, and that Shri Dehejia approved the proposal."}}, {"text": "J. P. Singh'.s", "label": "LAWYER", "start_char": 15556, "end_char": 15570, "source": "ner", "metadata": {"in_sentence": "Shri J. P. Singh'.s affidavit adds that the note he made in the office file on June 18, 1964-\"Discussed with Secy. (", "canonical_name": "J. P. Singh'.s"}}, {"text": "June 18, 1964-\"Discussed", "label": "DATE", "start_char": 15630, "end_char": 15654, "source": "ner", "metadata": {"in_sentence": "Shri J. P. Singh'.s affidavit adds that the note he made in the office file on June 18, 1964-\"Discussed with Secy. ("}}, {"text": "Singhvi", "label": "OTHER_PERSON", "start_char": 16583, "end_char": 16590, "source": "ner", "metadata": {"in_sentence": "Dr. Singhvi, learned counsel for the respondent, contendd (1) that the material on record did not prove beyond doubt that the Central Government had approved the proposal of the Chairman to alter the original distribution of work and (2) that in any event the law required the.", "canonical_name": "Singhvi"}}, {"text": "Narayana Row", "label": "OTHER_PERSON", "start_char": 18023, "end_char": 18035, "source": "ner", "metadata": {"in_sentence": "Regarding the statements in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that all work relating to the reopening of assessments was assigned to Shri Narayana Row with the approval of the Central Government, Dr. Singhvi pointed out that these statements had been verified by Shri J. P. Singh as true to his.", "canonical_name": "Narayana Row"}}, {"text": "J. P.\n\nSingh", "label": "LAWYER", "start_char": 18585, "end_char": 18597, "source": "ner", "metadata": {"in_sentence": "'G\n\nIt seems .to us that the verifica.tion of the statements in Shri J. P.\n\nSingh's affidavit clearly suggests that the facts stated therein were true to his knowledge which the records also bear out.", "canonical_name": "J. P. Singh'.s"}}, {"text": "Fonseca", "label": "OTHER_PERSON", "start_char": 19939, "end_char": 19946, "source": "ner", "metadata": {"in_sentence": "We\n\nhave already held that upon the material on record such approval appears to have been given Fonseca's case (supra) is hardly of any assistance on the question whether in this case the approval of the Cl?ntral Government should have been recorded in a formal order."}}, {"text": "sec 418", "label": "PROVISION", "start_char": 21753, "end_char": 21760, "source": "regex", "metadata": {"statute": null}}, {"text": "Ministry of Finance (Department of Revenue a'1d Expenditure)", "label": "ORG", "start_char": 22186, "end_char": 22246, "source": "ner", "metadata": {"in_sentence": "1964 that a draft showing the allocation of work was signed by Shri J. P. Singh and Shri V. T. Dehejia, Secretary of the Ministry of Finance (Department of Revenue a'1d Expenditure) appended his signature below Shri Singh's."}}, {"text": "sec. 148", "label": "PROVISION", "start_char": 22554, "end_char": 22562, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Boards of Revenue Act, 1963", "label": "STATUTE", "start_char": 23067, "end_char": 23102, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1975_3_743_752_EN", "year": 1975, "text": "THE COMMISSIONER OF SALES TAX, UTTAR PRADESH,\n\nLUCKNOW\n\nPARSON TOOLS AND PLANTS, KANPUR\n\nFebruary 27, 1975. [Y. v. CH.'1NDRACHUD, R. s. SARKARIA AND A. c. GUPTA, JJ.]\n\nInterpretation of Statutes-Legislature wilfully omitting to i11corporate a11 analogou.t law in subsequent stature-Language plain a11J unambiguous-Courts if competent to supply the omissio11 by analogy or implicatio11.\n\nlliterpretation of Statutes-Lmv of . limitatio11-Speciil/ stalll!e. prescribing certain period of limitation-Provi.iion for extension upto specified time-limit 011 sufficient caue being shown-Time-limit, if could be extended on anology of s. 14(2) of Limitation Act.\n\nU.P. Sales Tax A.ct, 1948 and U.P. Sa/es-tilx Rules, Rule 68-Appe/late Authority and Judge (Revisions) under the Act, if Courts within the meaning of s. 14(2) of Limitation Act.\n\nU.P. Sales Tax A.ct, 1948, s. 10(3) (i) and s. 10(3B)-Revisio11 applhatio11 -Revising Authority not conferred with discretion to extend period of limitation heyo11d six months even on sufficient cause shown-Principle of s. 14(2) of Limitation Act, if could be imported into :r. 10(38) by analogy.\n\nThe SaleJ-Tax Officer a'lse\"d tax for the assessment years 1958-1959 and 1959-60, on the respondent assessee by two separate orders. The assessee filed appwls against those orders before the Appellate Authority.\n\nOn May 10, 1963, when the appeals came up for hearing, the assessec was absent.\n\nThe aprcals were, therefore, dismissed in default by virtue of Rule 68(5) of tl:e U.P. Sales-tax Rules..\n\nSnb-.rule ( 6) of Rule 68 provided for setting aside wch dismissal and for re-admission of the appeal.\n\nOn the s; cme day (May 10, 1963), the as; essee made two applications in accordance with Sub-rule (6) for settin.~ aside the\n\ndimissal. Du.oing the pendency of those applkations. Subrnle (5) of Rule 68 was declared ultra vires the rule-making authority hy Manchanda J. of the High Court who further held that the Appellate-Authority could not dismi5' an appeal in default bu; was bound to decide it on merits even though the .1ppeliant be absent.\n\nWhen these applications under r. 68(6) cirme up for hearing .. on 20-10-64, the AppelJate-Authority dismissed them outright in view of the ruling of Manchanda .T.\n\nAgainst the order of dismissal of his appeals, the assessee on 16-12-1964 filed two revision petitions under s. 10 of the Sales-tax Act, before the [Judge (Revisions) Sale5-taX].\n\nThese revisions petitions having been filed more than 18 months after the dismissirl of the appeals,-which was the.maximum period of limitation pres,:ribed by sub-s. (3) of s. 10-were prima facie timebarred. They were however, accompanied by two applications in which the assessee prayed for exclusion of the time spent by him in prosecuting the abortive )Jfocecdings under r. 68(6) for setting aside the dismissal of bis appeals.\n\nThe Revi5ional Authority found that the asessee had been pursuing his remedy under r, 68(6) with due diligence and in good faith.\n\nIt therefore excluded the time spent in those proceedings from computation of limitation by applying s. 14, Limita'ion Act and in consequence. held that the revision petitions were within time.\n\nOn the motion of the Commissioner of Sales-tax. the Judge (Revisions) Sales-!ax made two references under s. J 1( 1) of the Sale'l-ta~ Act to the High\n\nCourt for answering the following question of law :\n\n\"Whether under the drcumstooces of the case, s. 14 of the Limitation Al extended the period for filing of the revisions by the time during which t)le restoration applications remained pending as being prosecuted bona fide.\"\n\nThe referencee were heard by a Full Bench of three learned Judges. each of whom wrote a separate Judgment.\n\nDwivedi t with whom Singh J. a11.reed atter ccframing the question held \"that the time spent in prosecutinc tne application for setling aside the order of dismissal of appeals in default can be\n\nexcluded from computing the period of limitation for filing the revision by the application of the principle underlying s. 14(2). Limitation Act.\"\n\nHari Swarup J. was of the opinion: \"The Judge (Revisions) Sales-tax while hearing the revisions under s. 10 of the U.P. Sales Tax Act does not act as. a Court hut only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him. If the Limitation Act does not apply then neither s. 29(2) nor '3. 14(2) of the Limitation Act will apply to proceedings before him.\" The learned Judge was further of the vi•~W that the principle of s. 14(2) also, could not be invoked to extend the time beyond the maximllm fixed by the Legi, lature in sub-section (3-B) of s. 10 of the Saks-lax Act.\n\nThese appeals ha\\'e been preferred on the basis of the special leave granted by this court.\n\nAllowing th~ a.ppeals,\n\nHELD: (i) If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not comr.\".!tent to scpply the omission by engrafting on it or introducting in it, under the guise of interpretation, by a:nalogy or implication, something wh'.lt it thinks to be a general principle of justice and equity. To do so \"would be entrenching upon the preserves of Legislatu.re\", the primary function of a cc1urt of law bei11g jus dicere and not jus dare.\n\n[7490-E]\n\n(ii) If the legislature in a special statute prescribes a certain period of limitation for filing a particul11r application thereunder aild provides in dear terms that such period on suflkient cause being shown, tflay be extended, in the maximum, only upto a specified time-limit and no further, then the tribunal concerne<' has no jurisdiction to treat within limitation, an application filed before it beyond 1; uch maximum time-limit spedfied in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of s. 14(2) of the Limitation Act.\n\n[7510-E} Ramdutt Ramfdssen Dass v. E. D. Sesso11 & Co. A.1.R. 1929, P.C. 103 and Pursliottam Dass Hassaram v. lmpex (India) Ltd. A.l.R. 1954 Born. 309, referred to.\n\n(iii i In view of the pronouncements of this Court in Shrimflti Ujjam nlzai\n\n1. Stat(' of U.P., [1963] 2 S.C.R. 778 and Jagannath Prasad v. State of U.P. [1963] 2 S.C.R. 850. there is no room for argument that the Appellate-Authority and the Judge (Revisions) exerdsin~ jurisdiction under the U.P. Sales Tax Act, 194.8, are 'Courts'. They are. merely admi!!'istrative Tribunals and \"not courts\".\n\nSection 14, Limitation Act, therefore. does not, in terms apply to proceedings before such Tribunals.- [747E]\n\n(iv) Time features of the scheme of pr:ovisions of s. 10(3)(i) and sedion 10(3B) are note-worthy. The first is that no limitation has been prescribed for the suo niotu exercise of its jurisdiction by the Revising Authority.\n\nThe second is that the period of one year prescribed as limitation for .filing an application for revision by the .aggrieved party is unusually long.\n\nThe third is that the Revising Authority has no discretion to extend this period beyond a further period of six months, even on suffi:ient cause shown.\n\nThe three s•ark features of the scheme and language of these provisions, unmistakably show that the legislatu.re has deliberately excluded the application_of the principl.:s of Ss. 5 and 14 of the Limit a lion Act. except to the extent and in t.he truncated form embodied in sub-s. (3-B) of s. 10 of the A:t. (7480-F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1458-1459 of 1970.\n\nAppeal by special leave from the judgment and order dated the 1st January, 1970 of the Allahabad High Court in S.T.R. No. 344 and S.T.R. No. 347 of 1967.\n\nc.s.r. v. PARSON roo1s (Sarkaria, /.) 745\n\nN. D. Karkhanis and 0. P. R{J.na, for the appellant.\n\nNo. aparance, for the respondent.\n\nThe Judgment of the Court was delivered by SARKARIA, J.-The common question of law for determinati?n. in these appeals by special Jcaye .is : Whether:s 14(2) of the imita tion Act, in terms, or, in prmc1ple,, ca~ be invoked for excludmg the time spent in prosecuting an apphca!Jon under Rle .68(6) ot the U.P. Sales Tax Rules for setting aside the order of d1snussal of appeal in default under the U.P. Sales Tax Act, 1948 (for short, the Salestax Act) 'from computation of the period of !imitation for filing a revision under that Act '?\n\nIt arises out of these circumstitnccs.\n\nC The respondent, M/s. Parson Tools and Plants (hereinafter refer . red to us the usscsscc) carries on business at Kanpur. The SaleSitax\n\nOfficer assessed tux for the assessment years, 1958-1959 and 1959·60, on the nsscssce by two scpnrntc order~. The nssessee filed appeals\n\nagainst those orders bcforn the Appellate Authority. On May 10, 1 Y63, when tho up peals cnmo up for hcnring, the nsscssee was abserlt.\n\nThe appeals were, therefore, dismissed in del'llult by virtue of Rule D 68 (5) of the U.P. Sulcs-tux Rules, Sub-rule (6) of Rules 68 pro· vided for setting aside such dismissnl and re-admission of the appeal.\n\nOn the same duy (May lO, 1963), the asscssec made two applications in accorduncc willl Sub rule ( 6) for setting aside the dismissal.\n\nDuring the pcndcni.:y of those upplic:1tions, Sub-rule (5) of Rule 68 was declared 11/tra. rirt'.\\' the ruli.:-muking authority by Manchanda J, of the High Court who further held that t)1c Appellate-Authority E could n!ot dismiss. an appeal in default but was bound to decide it on merits even though the appellant be absent. When these applications under Rule 68(6) came up for hearing, on 20-10·1964, the Appellate-Authority dismissed them outright in view of the ruling of Manchanda J. Against the order of dismissal of his appeals, the assessee on J 6-12-1964 filed two revision petitions under s. 10 of the Sales, tax Act, before the Rcvisional Authority (Judge (Revisions) F Sales-tax). These revision petitions having been filed more than 18 months after the dismissal of the appeals, which was the maximum period of limitation prescribed by sub-. 73) of s 10-were prima facie time-barred. They were however, accompanied by two applications in which the assessee prayed for exclusion of the time spent by him in prosecuting the abortive proceedings under Rule 68 ( 6) for setting aside the dismissal of his appeals. The Revisional Authority G found that the asscssee had been pursuing his remedy under Rule 68 ( 6) with due diligence and in good faith. lt therefore excluded the time spent in those proceedings from computation of limitation by applying s. 14, Limitation Act and in consequence, held that the revision petitions were withjn time. On the motion of the Cominis.- sioner of Sales-tax, the Revisional Authority made two reference& under s. 11 (1) of the S:1Jcs-tax Act to the High Court for answering H the following question of law :\n\n\"Whether under the circumstances of the case section 14 of the Limitation Act extended the period rdr filing\n\nSUl'REM~ COURT UPORTS [197 5] 3 s.c.it.\n\nof the revmons by the time during w.hich the restoration applications remained pending as being prosecuted bona fide.\"\n\nThe references were heard by a Full Bench of three learned Judges, each of whom wrote a separate Judgment. Dwivedi J. with whom Singh J. agreed after rcraing the qustion .held \"that the tiin~ snt\n\nin prosecuting the application for settmg aside the order of dismissal of appeals in default can be excluded from computing the period of\n\nlimtation for filing the revision by the application of the principle unde11ying s. 14(2). Limitation Act.\"\n\nHari Sl/Varup J. was of the opinion : \"The Judge (Revisions) Sales-tax while hearing the revisions under s. 10 of the U.P. Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him. If the Limitation Act does not apply then neither s. 29(2) nor s. 14(2) of the Limitation Act will a, pply to proceedings before him.\" The learned Judge was further of the view that the principle of s. 14(2) also, could not be invoked to extend the time beyond the maximum fixed by the Legislature in sub-section (3-B) of s. lO of the Sales-tax Act.\n\nSub-section (2) of s. 14, Limitation Act, runs thus:\n\n\"In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceedings, whether in a Cour1 of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where\n\nsuch proceeding is prosecuted in good faith in a Ctmrt which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.\" (emphasis added).\n\nIf will be seen that this sub-section will apply only if-\n\n( 1) both the prior and subsequent .procedings are civil\n\nproceedings prosecuted by the same party;\n\n(2) the prior proceedings had been prosecuted with due diligence and in good faith;\n\n(3) the failure of the prior proceedings was due to a G defect of jurisdiction or other cause of a like nature;\n\n( 4) both the proceedings are proceedings in a Court.\n\nr. Karkhani~, learned Counsel. appearing for the appellant does not dispute the view taken by the High Court that the proceedings in 9uestion under the Sales-tax Act could be deemed as civil proceed- H mgs. Learned Counsel, however, contends that the authoritir.s irrespective of whether they exercise, original, appellate or revisional\n\nC.S.T. v. PARSON TOOLS (Sarkaria, J.) 747\n\njurisdiction under the Sales-tax Act are not 'Courts' within the contemplation of s. 14(2) of th~ Limitation Act. It is pointed out that this question stands concluded by this Court's decision in Jagannath Prasad v. State of \"l/.P.(')\n\nMr .. Karkhanis is right that this matter is no longer res integra.\n\nIn Shrimati Ujjam Bhai v. State of U.P.(2) Hidayatullah J. (as he then was) speaking for the Court, observed :\n\n\"The taxing authorities are instrumentalities of the State.\n\nThey are not a part of the legislature, nor are they a part of the judiciary. Their functions are the assessment and collection of taxes and in the process of assessing taxes, they follow a pattern of action which is considered Judicial. They are not thereby converted into Courts of Civil judicature.\n\nThey will remain the instrumentalities of the State and are within the definition or \"State'' in Article 12.\"\n\nThe above observations were quoted with approval by this Court in Jagannath Prasad's case (supra), and it was held that a Sales-tax Officer under U.P. Sales-tax Act, 1948 was not a Court within the meaning of s. 195 ot the Code of Criminal Procedure although he is required to perform certain quasi-juicial functions. The decision in\n\nJagannath Prascufs case, it seems, was not brought to the notice of the High Court. In view of these prononcements of this Court, there is no room for argument that the Appellate-Au¢ority and the Judge (Revisions) Sales-tax exercising jurisdiction under the Salestax Act, are courts.\" They are merely administrative Tribunals and\n\n\"not courts.\" Section 14, Limitation Act, therefore,. does not, in terms apply to proceedings before such Tribunals. ·\n\nFurther question that remains is : Is the general principle underlying s.14 (2) applicable on grounds of justice, equity and good conscience for excluding the time spent in prosecuting the a1'ortive applications under Rule 68(6) before the Appellate Authority, for computing limitation for the purpose of revision applications.\n\nMr.\n\nKarkhanis m1intains that the answer to this question; also, must be in the negative because definite indications are available in the scheme and language of the Sales-tax Act, which exclude the application of s. 14(2), Limitation Act even in principle or by analogy. LearnM Counsel further submits that the ratio of the Privy Council decision in\n\nRanuk!.tt Ramkissen Dass v. E. D. Sesson & Co.(8) relied upon by the majority judgment of the High Court is not applicable for computing limitation prescribed under the Sales-tax Act. Reference in this connection has been made to Purshottam Dass Hassaram v. lmpex (India) Ltd.(4 ) wherein a Division Bench of the Bombay High Court explained the rule of decision in Ramdutt's case (supra) and found it to be in.apPiicable for the purpose of computing limitation for applications under the Arbitration Act, 1940. ·\n\n(1) ·. [196~) 2, S.C.R. 856.\n\n(2) [1963) 1, S.C.R. 771.\n\n(3) AIR 1n9 P. c, 103, (-4) A.I.R. 195-4 Bom. 309,\n\nThe material part of s. l 0 runs thus :\n\n\"(3) (i). The Revision Authority ....... may, f_or the purpose of satisfying itself as to the legality or propnety of any order made by any appellate or asscssin~ auth.ority und.er this Act in its discretion call for and examine, either on its\n\nown mtion or on the application o!' the Commissioner of Sales-tax or the person aggrieved, the record of such order and pass such order as it may think fit.\n\n* * * *'\n\n(3A)\n\n(3B) The application under sub-section (3) shall be made within one yen1 from the date of crvice of the order complained of, but the Revising Authority mny on proof of\n\nufficient cnusc entertain nn upplicntinn within a furth11r period oe six months.\"\n\nThree features of the scheme ot' the nbove provision a.re noteworthy. The first is that no limitntion has been .p!'escribcd for the suo motu exercise of its jurisdiction by the Rcvisin~ Authority. The second is that the period of one year prescribed as limitation for filing an application for revision by th1~ uggrk:vcd pmty is unusually long.\n\nThe third is that the Revising Authoritv hns no discretio11 ti> extend this period beyond a further period of six months, even on 11ufficient cause shown.\n\nAs rightly pointed out i11 the minority judgment of the High Cou; t, pe.ndcncy of proceedings of the nature contemplated by s. 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but s. JO (3-B) of the Sales-tax Act, gives no , iurisdiction to the Revisinli Authority to extend the limitation, even in such a case, for a further period of more than six months.\n\nThe three stark features of the scheme and langua!!e of the above provision, urmistakably show that the legislature has 'deliberately .excluded the application of the principles und1?rlving ss. 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in sub-s. (3-B) of s. 10 of the Sales-tax Act.\n\nDelay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Section 10 is therefore designed to ensure speedy and final. determination of fiscal matters within a reasonably certain time-schedule.\n\nIt cannot be said that by excluding the unrestricted application of the principles of ss. 5 and 14 of the Limitation Act, the Le1islature has made the provisions of s. JO, unduly oppressive.\n\nIn most cases, the discretion to extend limitation, on sufficient cause bein~: shown for a further period of six months only, given by sub-s. (3-B) would be enough to afford relief. Cases are no doubt conceivabfo where an aggrieved party, despite sufficient cause, is unable to make an\n\nC.S.T. v. PARSON TOOLS (Sarkaria, !.)\n\napplication for revision within this maximum period uf 18 months.\n\nSuch harsh cases would be rare.\n\nEven in such exceptional cases of extreme hardship, the Revising Authoritly may, on its own motion, entertain revision and grant relief.\n\nBe that as it may, from the scheme and laneuage of S. 10, the intention of the Legislature to exclude the unrstricted application of the principles of ss. 5 and I 0 of the Limitation Act is manifestly clear.\n\nThee provisions of the Limitation Act which the Legislature did not, after due application of mind, incorporate in the Sales-tax Act, cannot be imported into it by analogy.\n\nAn enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded \"according to the intent of them that made it''. \"The will of the lcgislati1re is.\n\nthe supreme law of the lnl)d, and demands perfect obdience\". (1) \"Judicial power is never exercised\" said Mnrshall C. J, of the United States, \"for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the lnw''.\n\nIf the legislature wilfully omits to incorporate something t1f an analogous law in a subsequent statute, or evc11 if there is n cC1s11.1 omissus in a statute, the language of which is otherwise plnin nnd unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the , Quisc of interpretation, by analogy or im:plication, somethine; what it thinks to be a general principle of justice a11d equity. To do so would be cntrenchit1g upon the preserves of Leiislatures, 'The primary function of a court of law being jus dicere and not jus dare.'\n\n, In the light of what has been said above, we are of the opinion that the High Court was in error in importing whole hog the principle of s. 14(2) of the Limitation Act into s. 10 (3-B) of the Sales-tax Act.\n\nThe ratio of the Privy Council decision in Ramdutt Ramkissen Dass v. E. D. Sasson & Co. (Supra) relied upon bv the High Court is not on speaking terms with the clear language of s. 10 (3-B) of the Sales-tax Act. That decision was rendered Jong bfore the passage of the Indian Arbitration Act, 1940. It Jost its efficacy after the enactment of the Arbitration Act which contained a specific provision in regard to exclusion of time from computation of limitation.\n\nThe case in point is Purshottam Dass Hussaram v. Index (India) Ltd. (supra). In this Bombay case, the question was, whether the suit was b~_rred by limitation. It was not disputed that Article 115 Of the Limitation Act governed the limitation and if. no other factor was to be taken into consideration, the suit was filed beyond time.\n\nBut what was relied upon by the plaintiff for the purpose of saving\n\n(1) see Maxwell 0n Interpretation of Statutes, 11th Edn .. pp. 1, 2 and 251.\n\nSUPUM~ _COUJ. T .REPOUS [1975) 3 s.c.1.\n\nlimitation was the fact that there were certain infructuous arbitration proceedings and if the time taken in prosecuting those proceedings was excluded under s. 14, the suit would be within limitation. It was held that if s. 14 were to be construed strictly, the plaintiff would not be entitled to exclude the period in question.\n\nOn the authority ot Ramdutt Ramkissen's case (supra), it. was then contended that. the time taken in arbitration proceedings should be excluded on the analogy of s. 14. This contention was also negatived on the ground that since the decision ot the Privy Council, the legislature ha1:l in s. 37(5) of the Arbitration Act, 1940, provided as to what er.tent the provisions of the Limitation Act would be applicable to th¢ proceedings before the arbitrator. Section 37 ( ~:) wa.s as follows :\n\n\"Where the court orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration agreement shall cease to have effect with res pect to the difference referred, the period between the commencement of the arbitration and the date of the order ot the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908, for the commencement of the proceedings (including arbitration) with respect to the difference referred.\"\n\nThe reasons advanced, the observations made and the rule enunciated by Chagla CJ., who spoke for the Bench in that case, a!'e opposite and may be extracted with advantage :\n\n\" ...... we hve now a statutory provision for exclusion of time taken up in arbitration proceedings when a suit is filed, and the question arises of computing the period of\n\nlimitation with regard to that suit, and the time that has got to be excluded is only that time which is taken up as provided in s. 3 7 ( 5). There must be an order of the Court\n\nsetting aside• an award or there must be an order of the Court declaring that the arbitration agreement shall cease to have effect, and the period between the commencement ot\n\nhe arbitration and the date of this order is the period that has got to be excluded.\n\nIt is therefore no longer open to the Court to rely on s. 14 Limitation Act as applying by analogy to arbitration proceedings. If the Legislature intended that s. 14 should apply and that all the time taken up in arbitration proceedings should be excluded, then there was no reason to enact s. 37(5). The very fact that s. 37(5) has been enacted clearly hows that the whole period referred to in s. 14, .\n\nLimitation Act is not to be excluded but the limited periodindicated ins. 37(5).\n\n• • • •·\n\nc. s. T. v. Parson Tools (Sarkaria, J.) ,. 51\n\n''It may seem rather curious-and it may' also in certain cases result in hardshias to wpy the legislature should not have excluded all time taken up in good faith before an arbitrator just as the time taken up in prosecuting a suit or an appeal in good faith is excluded.\n\nBut obviously the B Legislature did not intend that parties should . waste time infructuous proceedings before arbitrators.\n\nThe Legislature has clearly indicated that limitation having once begun to run, no time could be excluded merely because parties chose to go before an arbitrator without getting an award or without coming to Court to get the necessary order indi- C cated in s. 37(5).\"\n\nWhat the learned Chief Justice said about the inapplicability of s. 14, Limitation Act, in the context of s. 3 7 ( 5) of the Arbitration Act, holds good with added force with reference to s. 10 (3-B) of the Sales-tax Act.\n\nThus the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, _ in the maximum, only upto a specified time-limit and no further, than the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in , prosecuting in good faith and due diligence any prior proceeding on the analogy of s. 14(2) of the Limitation Act.\n\nWe have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same with out scanning its wisdom or policy, and without engrafting, adding or\n\nI implying anything which is not congenial to or consistent with such expressed intent of the Jaw-giver; more so .if the statute is a taxing statute. We will close the discussion by recalling what L-Ord Hailsham (') has said recently, in regard to importation of the principles of natural justice into a statute which is a c!ear and complete Code, by itself :\n\n\"It is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair.\n\nBut they have no power to amend or supplement the language of a statute merely because in one view\n\n(!) rl.t p, 11 in Pearl Ber~ v. Varty [1972] 2 All E. R. 6,\n\nof the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him.\n\nStill less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment.\"\n\nFor all the rasons aforesaid, we are of the opinion that the ob jcct, the scheme and language of s.10 of the Sales-tax Act do not permit the invocation of s.14(2) of the Limitation Act, either, in terms, or, in principle, for excluding the time spent in. prosecuting proc:ee dings for setting aside the dismissal of appeals in default, from com putRtion of the period of limitation prescribed for filing 11 revillion under the Snlcs.tax.\n\nAccordingly, we answer the question referred,\n\ni11 !he ncgntive,\n\n1 n the result, we set aside the judgment c •he High Court and ac ccpt these oppcnls.\n\nSince the appeals hnvc 1*'1 heard exparte, there will be no ordc:r as to costa.\n\nV.M.K.\n\n470Sup. CI/75-2500-27-11-75-GIPF.", "total_entities": 147, "entities": [{"text": "THE COMMISSIONER OF SALES TAX, UTTAR PRADESH,\n\nLUCKNOW", "label": "PETITIONER", "start_char": 0, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF SALES TAX, UTTAR PRADESH, LUCKNOW", "offset_not_found": false}}, {"text": "PARSON TOOLS AND PLANTS, KANPUR", "label": "RESPONDENT", "start_char": 56, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "PARSON TOOLS AND PLANTS, KANPUR", "offset_not_found": false}}, {"text": "February 27, 1975", "label": "DATE", "start_char": 89, "end_char": 106, "source": "ner", "metadata": {"in_sentence": "THE COMMISSIONER OF SALES TAX, UTTAR PRADESH,\n\nLUCKNOW\n\nPARSON TOOLS AND PLANTS, KANPUR\n\nFebruary 27, 1975. ["}}, {"text": "R. s. SARKARIA", "label": "JUDGE", "start_char": 130, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. c. 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D. Karkhanis", "label": "LAWYER", "start_char": 7831, "end_char": 7846, "source": "ner", "metadata": {"in_sentence": "v. PARSON roo1s (Sarkaria, /.) 745\n\nN. D. Karkhanis and 0."}}, {"text": ". P. R{J.na", "label": "LAWYER", "start_char": 7852, "end_char": 7863, "source": "ner", "metadata": {"in_sentence": "v. PARSON roo1s (Sarkaria, /.) 745\n\nN. D. Karkhanis and 0."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 7963, "end_char": 7971, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by SARKARIA, J.-The common question of law for determinati?n.", "canonical_name": "SARKARIA"}}, {"text": "s 14(2)", "label": "PROVISION", "start_char": 8070, "end_char": 8077, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Rules", "label": "STATUTE", "start_char": 8230, "end_char": 8245, "source": "regex", "metadata": {}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 8323, "end_char": 8342, "source": "regex", "metadata": {}}, {"text": "20-10·1964,", "label": "DATE", "start_char": 9649, "end_char": 9660, "source": "ner", "metadata": {"in_sentence": "When these applications under Rule 68(6) came up for hearing, on 20-10·1964, the Appellate-Authority dismissed them outright in view of the ruling of Manchanda J. Against the order of dismissal of his appeals, the assessee on J 6-12-1964 filed two revision petitions under s. 10 of the Sales, tax Act, before the Rcvisional Authority (Judge (Revisions) F Sales-tax)."}}, {"text": "6-12-1964", "label": "DATE", "start_char": 9812, "end_char": 9821, "source": "ner", "metadata": {"in_sentence": "When these applications under Rule 68(6) came up for hearing, on 20-10·1964, the Appellate-Authority dismissed them outright in view of the ruling of Manchanda J. 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Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him."}}, {"text": "Varup", "label": "JUDGE", "start_char": 11638, "end_char": 11643, "source": "ner", "metadata": {"in_sentence": "Hari Sl/Varup J. was of the opinion : \"The Judge (Revisions) Sales-tax while hearing the revisions under s. 10 of the U.P. Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 11735, "end_char": 11740, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 11861, "end_char": 11875, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 11923, "end_char": 11937, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 29(2)", "label": "PROVISION", "start_char": 11966, "end_char": 11974, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act", "statute": "Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 11979, "end_char": 11987, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act", "statute": "Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 11995, "end_char": 12009, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 12115, "end_char": 12123, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act", "statute": "Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 12286, "end_char": 12291, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act", "statute": "Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 12293, "end_char": 12307, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Karkhani~", "label": "LAWYER", "start_char": 13202, "end_char": 13211, "source": "ner", "metadata": {"in_sentence": "r. Karkhani~, learned Counsel.", "canonical_name": "Karkhani~"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 13662, "end_char": 13670, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 13678, "end_char": 13692, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Karkhanis", "label": "LAWYER", "start_char": 13822, "end_char": 13831, "source": "ner", "metadata": {"in_sentence": "It is pointed out that this question stands concluded by this Court's decision in Jagannath Prasad v. State of \"l/.P.(')\n\nMr .. Karkhanis is right that this matter is no longer res integra.", "canonical_name": "Karkhani~"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 13928, "end_char": 13940, "source": "ner", "metadata": {"in_sentence": "In Shrimati Ujjam Bhai v. State of U.P.(2) Hidayatullah J. (as he then was) speaking for the Court, observed :\n\n\"The taxing authorities are instrumentalities of the State."}}, {"text": "Article 12", "label": "PROVISION", "start_char": 14458, "end_char": 14468, "source": "regex", "metadata": {"statute": null}}, {"text": "Jagannath Prasad", "label": "OTHER_PERSON", "start_char": 14538, "end_char": 14554, "source": "ner", "metadata": {"in_sentence": "The above observations were quoted with approval by this Court in Jagannath Prasad's case (supra), and it was held that a Sales-tax Officer under U.P. Sales-tax Act, 1948 was not a Court within the meaning of s. 195 ot the Code of Criminal Procedure although he is required to perform certain quasi-juicial functions.", "canonical_name": "Jagannath Prascufs"}}, {"text": "Sales-tax Act, 1948", "label": "STATUTE", "start_char": 14623, "end_char": 14642, "source": "regex", "metadata": {}}, {"text": "s. 195", "label": "PROVISION", "start_char": 14681, "end_char": 14687, "source": "regex", "metadata": {"linked_statute_text": "Sales-tax Act, 1948", "statute": "Sales-tax Act, 1948"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 14695, "end_char": 14721, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Jagannath Prascufs", "label": "OTHER_PERSON", "start_char": 14807, "end_char": 14825, "source": "ner", "metadata": {"in_sentence": "The decision in\n\nJagannath Prascufs case, it seems, was not brought to the notice of the High Court.", "canonical_name": "Jagannath Prascufs"}}, {"text": "Sales-tax exercising jurisdiction under the Salestax Act", "label": "STATUTE", "start_char": 15021, "end_char": 15077, "source": "regex", "metadata": {}}, {"text": "Section 14", "label": "PROVISION", "start_char": 15152, "end_char": 15162, "source": "regex", "metadata": {"linked_statute_text": "Sales-tax exercising jurisdiction under the Salestax Act", "statute": "Sales-tax exercising jurisdiction under the Salestax Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 15164, "end_char": 15178, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.14", "label": "PROVISION", "start_char": 15329, "end_char": 15333, "source": "regex", "metadata": {"linked_statute_text": "Sales-tax exercising jurisdiction under the Salestax Act", "statute": "Sales-tax exercising jurisdiction under the Salestax Act"}}, {"text": "Karkhanis", "label": "LAWYER", "start_char": 15592, "end_char": 15601, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nKarkhanis m1intains that the answer to this question; also, must be in the negative because definite indications are available in the scheme and language of the Sales-tax Act, which exclude the application of s. 14(2), Limitation Act even in principle or by analogy.", "canonical_name": "Karkhani~"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 15801, "end_char": 15809, "source": "regex", "metadata": {"linked_statute_text": "Sales-tax exercising jurisdiction under the Salestax Act", "statute": "Sales-tax exercising jurisdiction under the Salestax Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 15811, "end_char": 15825, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 16252, "end_char": 16269, "source": "ner", "metadata": {"in_sentence": "Reference in this connection has been made to Purshottam Dass Hassaram v. lmpex (India) Ltd.(4 ) wherein a Division Bench of the Bombay High Court explained the rule of decision in Ramdutt's case (supra) and found it to be in.apPiicable for the purpose of computing limitation for applications under the Arbitration Act, 1940. ·"}}, {"text": "Ramdutt", "label": "OTHER_PERSON", "start_char": 16304, "end_char": 16311, "source": "ner", "metadata": {"in_sentence": "Reference in this connection has been made to Purshottam Dass Hassaram v. lmpex (India) Ltd.(4 ) wherein a Division Bench of the Bombay High Court explained the rule of decision in Ramdutt's case (supra) and found it to be in.apPiicable for the purpose of computing limitation for applications under the Arbitration Act, 1940. ·"}}, {"text": "Piicable for the purpose of computing limitation for applications under the Arbitration Act, 1940", "label": "STATUTE", "start_char": 16351, "end_char": 16448, "source": "regex", "metadata": {}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 17900, "end_char": 17908, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 17916, "end_char": 17930, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 5 and 14", "label": "PROVISION", "start_char": 18426, "end_char": 18438, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 18446, "end_char": 18460, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 18537, "end_char": 18542, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 18693, "end_char": 18703, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 5 and 14", "label": "PROVISION", "start_char": 18916, "end_char": 18928, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 18936, "end_char": 18950, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 10", "label": "PROVISION", "start_char": 19637, "end_char": 19642, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 5", "label": "PROVISION", "start_char": 19737, "end_char": 19742, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 19758, "end_char": 19772, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Thee provisions of the Limitation Act", "label": "STATUTE", "start_char": 19795, "end_char": 19832, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mnrshall", "label": "JUDGE", "start_char": 20310, "end_char": 20318, "source": "ner", "metadata": {"in_sentence": "1) \"Judicial power is never exercised\" said Mnrshall C. J, of the United States, \"for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the lnw''."}}, {"text": "United States", "label": "GPE", "start_char": 20332, "end_char": 20345, "source": "ner", "metadata": {"in_sentence": "1) \"Judicial power is never exercised\" said Mnrshall C. J, of the United States, \"for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the lnw''."}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 21259, "end_char": 21267, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 21275, "end_char": 21289, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 21295, "end_char": 21300, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 21508, "end_char": 21513, "source": "regex", "metadata": {"statute": null}}, {"text": "That decision was rendered Jong bfore the passage of the Indian Arbitration Act, 1940", "label": "STATUTE", "start_char": 21542, "end_char": 21627, "source": "regex", "metadata": {}}, {"text": "Bombay", "label": "GPE", "start_char": 21879, "end_char": 21885, "source": "ner", "metadata": {"in_sentence": "In this Bombay case, the question was, whether the suit was b~_rred by limitation."}}, {"text": "Article 115", "label": "PROVISION", "start_char": 21979, "end_char": 21990, "source": "regex", "metadata": {"linked_statute_text": "That decision was rendered Jong bfore the passage of the Indian Arbitration Act, 1940", "statute": "That decision was rendered Jong bfore the passage of the Indian Arbitration Act, 1940"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 21998, "end_char": 22012, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 22476, "end_char": 22481, "source": "regex", "metadata": {"linked_statute_text": "That decision was rendered Jong bfore the passage of the Indian Arbitration Act, 1940", "statute": "That decision was rendered Jong bfore the passage of the Indian Arbitration Act, 1940"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 22540, "end_char": 22545, "source": "regex", "metadata": {"linked_statute_text": "That decision was rendered Jong bfore the passage of the Indian Arbitration Act, 1940", "statute": "That decision was rendered Jong bfore the passage of the Indian Arbitration Act, 1940"}}, {"text": "Ramdutt Ramkissen", "label": "OTHER_PERSON", "start_char": 22669, "end_char": 22686, "source": "ner", "metadata": {"in_sentence": "On the authority ot Ramdutt Ramkissen's case (supra), it."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 22811, "end_char": 22816, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37(5)", "label": "PROVISION", "start_char": 22938, "end_char": 22946, "source": "regex", "metadata": {"statute": null}}, {"text": "Arbitration Act, 1940", "label": "STATUTE", "start_char": 22954, "end_char": 22975, "source": "regex", "metadata": {}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 23027, "end_char": 23041, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 37", "label": "PROVISION", "start_char": 23104, "end_char": 23114, "source": "regex", "metadata": {"linked_statute_text": "the Arbitration Act, 1940", "statute": "the Arbitration Act, 1940"}}, {"text": "Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 23432, "end_char": 23523, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Chagla", "label": "JUDGE", "start_char": 23703, "end_char": 23709, "source": "ner", "metadata": {"in_sentence": "The reasons advanced, the observations made and the rule enunciated by Chagla CJ.,"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 24109, "end_char": 24113, "source": "regex", "metadata": {"linked_statute_text": "the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908", "statute": "the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 24476, "end_char": 24481, "source": "regex", "metadata": {"linked_statute_text": "the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908", "statute": "the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 24482, "end_char": 24496, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 24581, "end_char": 24586, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37(5)", "label": "PROVISION", "start_char": 24712, "end_char": 24720, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37(5)", "label": "PROVISION", "start_char": 24741, "end_char": 24749, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 24817, "end_char": 24822, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 24827, "end_char": 24841, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sarkaria", "label": "JUDGE", "start_char": 24945, "end_char": 24953, "source": "ner", "metadata": {"in_sentence": "• • • •·\n\nc. s. T. v. Parson Tools (Sarkaria, J.) ,.", "canonical_name": "SARKARIA"}}, {"text": "s. 37(5)", "label": "PROVISION", "start_char": 25622, "end_char": 25630, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 25699, "end_char": 25704, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 25706, "end_char": 25720, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 25740, "end_char": 25744, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 25822, "end_char": 25827, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 26468, "end_char": 26476, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 26484, "end_char": 26498, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "L-Ord Hailsham", "label": "OTHER_PERSON", "start_char": 26973, "end_char": 26987, "source": "ner", "metadata": {"in_sentence": "We will close the discussion by recalling what L-Ord Hailsham (') has said recently, in regard to importation of the principles of natural justice into a statute which is a c!ear and complete Code, by itself :\n\n\"It is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair."}}, {"text": "Parliament", "label": "ORG", "start_char": 27656, "end_char": 27666, "source": "ner", "metadata": {"in_sentence": "Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment.\""}}, {"text": "s.10", "label": "PROVISION", "start_char": 27864, "end_char": 27868, "source": "regex", "metadata": {"statute": null}}, {"text": "s.14(2)", "label": "PROVISION", "start_char": 27922, "end_char": 27929, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 27937, "end_char": 27951, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "27-11-75-GIPF", "label": "DATE", "start_char": 28467, "end_char": 28480, "source": "ner", "metadata": {"in_sentence": "CI/75-2500-27-11-75-GIPF."}}]}
{"document_id": "1975_3_753_782_EN", "year": 1975, "text": "KHEMKA &CO.\n\nSTATE OF MAHARASHTRA 27th February, 1975\n\n[A. N. RAY, CJ., H .. R. KHANNA, K. K. MATHEW, M. H. BEG, Y. V.\n\nCHANDRACHUD, JJ.].\n\nCentral Sales Tax Act 1956-S. 9(2)-Scope of Bombay Sales Tax Act-S. 16(4)-1/ penalty under tlie Central Act could be levied under s. 16(4) of tire Bombay Act. ·\n\nSection 9(2) of the Central Sales-tax Act, 1956 provides that the authorities for the time being empowered to assess, re-assess. collect and enforce payment of nny tax under the general sales-tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including any pnalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the 11eneral S<•les-tax law of the State. Section 16 of the Bombay Sales-tax Act pro\n\nides for payment and reco.verv of tax. Sub-section ( 4) states that if the tax is not paid by any dealer within the prescribed time, the dealer shall pay a penalty in addition to sales-tax assessed.\n\nThe assessee unsuccessfully contended before various sales-tax nuthoriries as well as before the High Court that levy of penalty under s. 16(4) of the Bombay Sales-tax Act for delay or default in payment of tax under the Central Sales Tax Act was without jurisdiction as it was not warranted by the provisions of s. 9 (2) of the Central Sales-tax Act, 1956.\n\nIn lhe Mysore case which was similar to the Bombay case, however, the High Court allowed the assessee's claim that the. levy of penalty under lb~ Mysore Sa!e5tax Act•in respect of sales-tax payable under the Central Sales-tax Act was 11ltra iires.\n\nIt was contended before this Court that there was no provision in the Central Sales-tax Act for. imposition of penalty for delay or default in payment of tax and. therefore, imposition of penalty -under the provisions of the State Act for delay or default in payment of tax was illegal.\n\n[per Ray, CJ. and Khanna, J.] (Beg, J. concurring in the final results).\n\nAllowing the appeal,\n\nHELD : The Mysore High Court correctly pointed out that the words \"as if the tax or penalty payable by such a dealer under this Act\" relate to tax or pJn<t!ty which is payable only under the Central Act.\n\n[763B]\n\nThe provision in the State Sales Tax Act imposing penalty for non-payment of sales-tax within the prescribed time is not attracted to impose penalty on dea !crs under the Central Sales Tax Act in respect of .tax and penalty payable under\n\nlhe Central Act. There is no lack of sanction for payment of tax. Any dealer \\'.ho would not comply with the provisions for payment of tax would be subjected ta recovery proceedings under the Public Demands. Recovery Act.\n\nA penalty is a statutory liability. The Central Act contains specific provisions for penalty.\n\nThose are the only provisions for penalty available against the dealers under the Central Act. Each State Sales Tax Act contains provisions for penalties. These prov'.sions in some cases are also for failure to submit a return or failure to register. It is rightly said that those provisions cannot apply to dealers under the Central Act because the Central Act makes similar provisions.\n\nTh~ Central Act is a self-contained code which. by the charging section, creaks !!ability for tax and which by other sections creates a liability for penalty and imposes penlty.\n\nSection 9(2) of the Central Act creates the State authoritie• as agncies to carry out the asessment. re-assessment. collection and enforcement of tax and penalty payable by a dealer under the Act. [765H: 766A Bl ~\n\n2-564SCI/75 ,.\n\n( J) The words 'as1<ss, re-assess, coJlect nnd enforce payment of tax including nny penalty rayabk by a uealcr unJr this Ac!' mean that the tax as well as renalty is payable only undi; r the Central Act.\n\nBy s. 9(2) of the Central Sales Tax Act the State Sales-TtlX Authorities arc created as agents of the Go\\'ernment of frdi~. [7CJ D: BJ\n\n\\2) The words \"and for this purpose they may exercise all or any of the powers they haw under the general sales-tax law of the State\" ins. 9(2) of the Central Act 1-.late to \"assess, re-assess, collect and enforce payment of tax in duding any p(:nalty payable by a dealer under this Act.\" In that context the last\n\nlimb of s. 9(2) of lhe Central A, ct, namely, \"and the provisions of such law .... . . . . . . shall apply accordingly'' means that the provisions of the State Act me applicable for the purpose of assessment, reassessmnt, collection and enforcement of payment of tax including penalty payable under the Central Act.\n\nThe WQrds pf the last part of s. 9(2) namely, \"shall apply accordingly~' relate clearly\n\nto the words \"and for this purpose\" with the result that the provisions of the StMe Act shall apply only for the purpose of assessment, re-assessment, coll.cction and enfor:ement. [761G-H; 7€2A] ·\n\n(3) The extent of liability for tax as well as penalty is not attracted by the doctrine of cj11sdem generis in the application of the provisions of the State Act\n\nin regard to assessment, re-assessment, collection and enforcement of payment of tix including any penalty payable under the Central Act.\n\nThe doctrine of ej11sdtm ge11eris shows that the genus in s. 9 (2) of the Central Act is 'for !his purpose'.\n\nTn oth, r words, the genus is assessmnt, re-assessment, collection and en\n\nforcemnt of payment. The genus is applicable in regard to the proceduri for D assessment, rc, assessment, collection and enforcement of payment. The genus j, from whom to collect and against whom to enforce. [76~A-C]\n\n( 4) The deeming provision in the Central Act that the tax as well as penalty levied under the Central Act will be deemed as if payable under the general saks tax law of the State, cannot possibly mean the tax or penalty impoed under any State Act will be deemed to be tax or penalty payable under the Central Act.\n\nThe entire authority of the State machinery is that \"for this purpose\" meaning E thereby the purpose of assessing, re-assessing, collecting and enforcing payment of tax including any penalty payable under the Central Act, they, meaning the State agencies, may exercise powers under the general sales tax law of the State.\n\nThe words \"for thi.s prn'pose\" cannot have the effect enlarging the contern: of tax and the content of penalty under the Central Act. Liability to pay tax as well '\" liability to pay penalty is created by the Central Act.\n\n(7620-E]\n\n(5) If the liability to pay tax is determined by the provisions of the Central .\\ct the liability to pay penalty is also that ''hich is payable under the Central Act.\n\nTh~ procedural law prescribed in the general sales-tax Jaw of the State applie1 tG\n\nth~ matter of assessment, re-ssessment, collection and enforcement of paym.:nt of tax under the Central Act because the liability to pay tax is dctennined under the Central Act.\n\nSimilarly liability to pay pen•Jtv i:; determined with refercn.:~ to the p1w; i; io11s of the Central Act. [763DJ.\n\nStii!e o.1 J\\cr11/n v. P. P. Joseph & Co .. 255 STC -183; followed.\n\n(6) Rebate is a concssion ,, hereas penalty is an imrosition. The conco' <ion does not !ninose liability bnt penalty does.\n\nTt, therefore, tands to re;\"on G that .rchale is included within the nrocedural nart of collection and enforccrnem of p;1yment of tax. renal\\y, like in1position of tax, cannot be included within th~ prow!ural rart. f763G-H]\n\n()rissa C'111mt Limited v. Tlte State of Orissa & Anr., 27 S.T.C. 118; fo'Jov;;; J.\n\nC. A. Ahralia111, Uppootfi/, Kottayam v. The lnco111e Tax O[ficer, KottaYl/'n & A11r., [1961] 2 S:C.R. 765 and Co111missio11er of Tnco111e-Tax, Andhm Prndrsh \"I\n\nv. Mis. Bhikaji Dadabhai & Co., [1961] 3 S.C.R. 923, distinguishd. £\n\n(7) Penalty is within assessment proceedings just as tax is within the assessment proceedings when the relevant Act by substantive charging provision levies\n\n. B\n\nKHEMKA & CO. V. MAHARASH1 RA 755\n\ntax as well as JlCnnlty.\n\nPcn;1Jty is not merely a sancticJ. It is not merely an adjunct lo assc>1mc11t. ll is not merely consequential to assessment. It is not merc:r mad:inery. Pcn:ilty is in addition to tax and is a liability under :he Act.\n\nT'cm1Jty is not a C<':1tinuation of assessment p; o,; ecdings and iienally partakes of the ch:nacter of additional tax.\n\n[765B-D]\n\nJnin Brothers & 01 <. v. U1; ion of India. 77. l.T.R. 107 followed .\n\n(8) Under a taxing statute Jbbility does not begin on assessment.\n\nThere r, rn; t be a liability creat<d b:: the Act, the Act must provide for assessment and the Act must pro1 ide for eai'orcement of the taxing provisions. The mere fact that there is machinery for '\"sessment, collection and enforcement of tax mid penalty in the State Act docs no' mean t1rnt the provision for penalty in the State Act is treated as penalty under the Central Act. The meaning of penalty under the Central Ac.t cannot be enlarged by the provisions of machinery of the State Act incorporated for working out the Central Act. [765EFl\n\nJail! Brothers & Ors .• v. Ul!ion of lndin, 77, I.T.R. 107 and Cliafluram & Ors.\n\nv. Ccmm[ssioner of !11comc-tax, Bihar, 15, I.T.R. 302, followed.\n\nPer BEG. J. (l) The prnvbions relating to penalties are special and spcc:ific pro..-ision•; in each Act. They are not part of \"the general sales tax hw\" of ei1hcr the State er of the Union. ![ the provisions relating to penalties, such as those found in the Central Act and the State Acts. are really special prol'i; ions which can be invoked in the special circumstances given in each statute, th~ reference to penalties in the concluding portion of s. 9(2) must be interpreted to relate cn1y to the special provisions relating to penalties provided for specificr•lly in the Cen tral Act.\n\n[782BCJ ·\n\n(2) The rule to be applied with regard to a statute purporting to impcsc a charge is ''that the intention to impose a charge upon the subject, must be shown by clear and unambiguous language\". If the language leaves room for coming to the conclusion that only penalties specified in the Central Act are enforceable by the machinery for enforcement of liability under the gen?ral sales tax law of a State, then, the legislative intent could safely be presumed to be to confine penalties mentioned in the concluding part of s. 9(2) to only those mentioned specifkrlly in the Central Act.\n\n[782F-G]\n\nOriental Bank Corporation v. Wright, [18801 5 App, Cas. 842 @ 856 referred\n\nIQ.\n\n(31 Section 76(a) of the Bombay Sales Tax Act. 1959 repealed the Bombay Sales Tax Act of 1953. Section 16 of the 1959 Act refers to an entirely different subject matter. At the time when the assessment order was made, there wns no provision for imposition of any penalty under s. 16(4) of the Bombay Act of 1953 which the Sales Tax Authorities and the High Court sought to utiii'' to jus'.ify the penalty imposed.\n\n[777GH] ·\n\n(4) In 1956 the Parliament conld not have applied its mind to provisions l'hich caP1e into existence afterwrds. It could not have incorporated them by reference <ls parts of a procedure applicable to assessments which took place acter\n\n1959 when the Bomhav Act of 1953 was repealed.\n\nAt the time of the pa?.sing of the Central Act. lhe relevant statute in existence in Eombay was lhe B0m':•aY ,\\ct, 1953. Bnt s. 16(4) of the Bombay Act of 1953 under which the mies tax authorities pmported to act, did not exist on the statute book at the time of assessment. Unless it is assumed that s. 9(2) of ihe Central Act, by necessary im;·.]i.:ation .. authorised the S!ate Legislatures to go on in1posing such penalties for such breaches of duty as it pleased them to lay down on beldf Cf Pu!iamcnt subsequently enacted provisions of State enactments would not he avc<ii obk /.! l 8A-CJ\n\nRe. Del/Ji Lmrs Act (1912) etc. [1951] S.C.R. 747 referred to.\n\n<5) Section 13 af the Mysore Sales Tax.Act 1957 was entirely recast in 1958.\n\nIt would be carrying the theory of referential legislation too far to ass1:rnc '!oat s. 9(2) of the Central 1\\ct, 1956 purported to authorise the State Legislatures to\n\nimpose liabilities in the nature of additional tax ot penaltie3 leal'ing their rates and conditions for their imposition also to be determined by the State Legislatures a.; •rnd when the State Legislatures decided to impose or amend them. [7780]\n\n(6) On a consideration of the ?rovisions of s. 16( 4) of the Bombay Act it seems clear that whatever may be the objects of levying a penalty, its imposition gives rise to a substantive-liability which can be viewed either as an additional tax or as a fine for the infringement of the law. It is an imposition of a pecuniary liability which is compar_a ble to a punishment for the commission of an offence.\n\n[779B}\n\n!7) The imposition of a pecuniary liability, which take the form of a penalty or fine for a breach of a legal obligation, cannot be relegated to the region of mere procedure and machinery for the realization of tax.\n\nSuch liabilities must be created by dear, unambiguous, and express enactment.\n\nThe languag•e used should leave no serious doubts about its effect so that the persons who are• to be subjected to such liability fpr the infringement of law are not left in a state of uncertainty as !1) what ther duties or liabilities are. [7790]\n\n(8) The provisions of s. 9(2) of the Central Sales Tax Act make it clear that the powers of the State Sales Tax Officers were specifically limited by the provisions of the Central Act. They cannot go beyond these provisions. It is also clenr from s. 9(2) that these powers are exercisable only \"for this purpose\". In other words, they are not authorised to collect dues for purposes extraneous to the Cr.ntral At. [78 IH]\n\nPa Mathew and Chandrachud, JJ. (dissenting).\n\n(!) A careful analysis of s. 9(2) of the Central Act would show that the authorities empowered to assess, reassess. collect and enforce payment of tax payable under the general sales tax law of the appropriate State shall assess, reassess, collect and enforce payment of tax including penalties payable by a dealer under the Central Act as ir the tax or penalty payable by a dealer under the Central Act is a !ix or penalty payable under the general sales-tax law of the State and for that purpose, the authorities may exercise all or any of the powers they have under the genernl sals tax law of rhe State.\n\n[767F-G]\n\n(2) If the sales-tax authorities of a State have power, when enforcing payment of sales-tax payable under the general sales-tax law of the State to impose penalty for non-payment of tax within the prescribed time, they will have a like power to impose penalty, for enforcing payment of the tax payable under the Central Act within the time prescribed. It was not necessary that powe~ to impose penalty for enforcing the payment of tax payable by a dealer under the Central Act should have been specifically provided in or conferred separately by the\n\nsub-setion uoon the sales tax authorities of the State, because, the powe.r to enforce payment of tax payable under the Central Act, in the same manner as the power to enforce tax payable under the general sales-tax law d the State. has been given by it. The provision for imposition of penalty in s. 16 of the Bombay Sales Tax Act facilitqtes the collection of tax as it is a sanction for non-observance of the duty to pay the tax within the prescribed time. It operates as a deterrent against the commission of breach of that duty, and is a means to enforce the payment ()f tax wi.hin the time prescribed.\n\n[767H; 768A-0]\n\n\nThe State of Orissa and Anr. 27 S.T.C. 1 lR referred to.\n\n(3) If rebate can be given on the basis that it would facilitate, expedite and stimulate the collection of tax there is no reason why a penalty could not be imposed to expeite, facilitate and stimulate the collection of tax and as part of the process of collection. Payment of rebate is a liability from the point of view of the Revenue .. though it is a concession from the point of view of the assessee. If penalty is levy of money on an assessee, rebate means payment of money to an assessee [770C-Ol\n\nl\\HEMKA & CO, v. MAHARASHTRA 757\n\n( 4) It is difficult to hold that Parliament invested the State authorities with power to ases;, re-assess, collect and enforce p;1yment of tax payable under the Central Act as if the tax is a tax payable under the general sales tax law of the State, but denuded them of the power to invoke the provision in the general salcstax law of the State for imposition of penalty .for enforcing payment of the tax payable thereunder, as that is an effective means to the enforcement of payment of tax within the prescribed time. [770F-G]\n\n(5) The analogy of principal and agent has no relevance in this context. If the power of enforcement of payment of tax payable under the Central Act conferred on the authorities of the State would include the power to impose penalties provided in the general sales tax law of the State there is an end of the matter.\n\nThe whole falacy in the reasoning of the _High Court is the assumption that only the penalties provided in the Central Act can be imposed by the authorities by using the machinery of the sa.les-tax law of the State as they alone are specifically mentioned in s. 9 (2) and in ignoring what are the powers actually conferred by the words enforce payment of tax ........ .'.as if the tax .......... payable by . such a dealer under this Act is a tax ........ payable under the general sales tax law of the State\" in the sub-section. [772A-B]\n\n( 6) It is clear from s. 9 (2) that the penalties which could. be imposed by the State authorities by virtue of the express provision in it are the penalties provi<led in s. I 0 read with s. 1 OA.\n\n[772H]\n\n(7) When s. 9 (2) says that assessment, re-assessment, collection and enforcement of payment of tax due under the Central Act should be made by the autho . rities of the State as if the tax payable .under that Act is tax payable under the general sales-tax law of the State and for that purpose \"they may exercise all or any of the powers they have under the sales tax law of the State\", there can be no manner of doubt that if for enforcing payment of tax due under sales-tax law of th_e State, they have power to impose penalty, they have the same power of imposing penalty for enforcing payment of tax payable under the Central Act.\n\nThe reason why the sales tax authorities of the State were given specific power under s. 9(2) to enforce the penalties payable by a dealer under the Central Act is that those penalties were not and perhaps could not have been provided for in the sales-tax law of the State. The penalties provided in s. JO read with s. lOA of the Central Act are not for the purpose of or in connection with assessment, re-assessment, collection and enforcement of payment of tax payable by a dealer under the Central Act and could not have been imposed by the sales tax authorities of the State in making assessment, re-assessment, collection or in enforcing payment of ihe tax payable under the Central Act.\n\nTherefore, express power had to be conferred upon the sales tax authorities of the State to enforce the penal- ties payable by a dealer under the Central Act. f773C-G.I\n\n(8) In the nature and scheme of the Central Act. it was not necessary to provide for imposition of penalty or for the other methods of enforcing the payment of tax payable under the Centrnl Act since Parliament has adopted the machinery provided in the general sales tax law of the State as respects enforcement of the tax payable under the Central Act. [774E]\n\n(9) The expression \"penalties\" in the latter part of the s. 9(2) can only refer to penalties imposable under the general sales tax law of the State in connection . with assessment, re-assessment, collection and enforcement of payment of tax ..\n\nThe latter part of the sub-section only enumerates some of the powers exercisable by the sales-tax authorities of the State to assess, re-assess, collect and enforce oayment of tax payable under the Central Act. The language of the sub-section beginning with \"and for this purpose they may exercise all or any .of the powers they have under the general sales tax law of the State, and the provisions of such Jaw including provisions relating to returns, provisional assessment, advance paymet of tax .... appeals, reviews, revisions, references, refunds, penalties ...... \" makes it clear that the word 'penalties' occurring therein can refer only to penal tics rirovided in the general sales-tax Jaw of the State. In other words the express mention of the power to impose 'penalties' among the enumerated. powers beoinning with the ·.vords \"and the provisions of such law including the provisions\n\nrelting to ...... penalties\" would put it beyond doubt that the word \"penalties\"\n\nin the lallcr part of the sub-section can only refer to penaltie> imposabl1~ under the g:neral sales tax law of th~ State in relation to assessment, re-asscsment, colhcti>in and enforcement of p::; meU': of tax payable thereunder.\n\n\\77JB-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2089 of 1969.\n\nAppeal by Special Leave from the Jt:dgmcnt •and Order dat;:d the 22nd February 1968 of the Bombay High Court in Sales Tax Reference No. 36 of 1967 and\n\nCivil Appeal No. 2118 of 1970\n\nfrom the Jud1!lncnt and ordr dated the 18th March, 1970 of the Vfysorc High Cort in Writ Petition No. 345 of 1970.\n\nS. T. Desai, P. G. Blwrwri and K. J. John, for the api; cllant (In\n\nC.A. 2089/69).\n\n:'vi, Veerappa, f?r the appellant (in C.A. 2118170).\n\nSai; tosh Chatter, jee and G. S. Chatterjee for the Applicant/Intervener (State of West Bengal).\n\nL. N. Sinha, Solicitor General, M. N. Shro.fj for the Intervener D (L'nion of India in C.A.2089 /69).\n\nL. N. Sinha, Solicitor General, M. G. Bha11dare and M. N. Shroff for respondent (C.A. No. 2089/69).\n\nThe Judgment of A. N. Ray, C.J. and H. R. Khanna,\n\n.T. was delivered by Ray, CJ. K. K. Mathew, J. gave a dissenting opinion E on behalf of himself and Y. V. Chandrachud, J., M. H. Beg, J. gave a separate Opinion.\n\nRAY, C.J.+-These appeals raise the question as to whether the asscssees under tile Central Sales. Tax Act, 1956 hereinafter referred to <ls the Central Act could be made liable for penalty under the provisions of the State Sales Tax Act hereinafter referred to as the State F Act. The peJrnlty imposed under the State Act is for default in payment of taxes within the prescribed time.\n\nThe Central Act states section 9(1) that the tax payable by any dealer under the Central Act on sales of goods effected by him in the course of inter-.state trade or commerce shall be levied by the Government of India and the G tax so levied shall be collected by that Government in accordance with the provis:ons of sub-section (2) in the State from which the movement of gqods_commmced.\n\nSection 9(2) of the Central Act is as follows :-\n\n\"Subject to the other provisions of this Act and the Rules m<.de thereunder, the authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State\n\n' I\n\nKHEMKA & co., v. MAHARASHTRA (Ray, C.J.'\n\nshall, on beh•alf of the Government of India, assess,· re-assess, collect an\\! enforce payment of tax, including any penaliy, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or pen•alty payable U'i1der the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax l'aw of the State; and the provisions of such law, including provisions relating to returns, provisiu1aal assessment, advance payment of tax. regisfration of the transferee of any business, imposition of the tax liability of r. person carrying on business on the tmnsferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parfas, appeals, reviews, revisions, references, refunds, rebates, penalties, componding of offences and treatment.of documents furnished a dealer as confidential shall apply accordingly.\n\nProvided that if in any State or part thereof there is no go1eral sales tax Jaw in force, the Central Government, may, by rules made in this behaif make necessary provision for all or any of the matters specified in this sub-section.''\n\nSection 6 of the Central Act provides for liability to tax on interstate sales.\n\nSection 8 of the Central Act provides for rates of tax on sales in the course of inter-State trade or commerce.\n\nSection 9 of the Ceiatral Act provides for collection of tax and penalties.\n\nSection 10 of the Central Act provides penalties.\n\nThe various grour, ds for penalties are fully enumerated there.\n\nSection lOA (1) of the Central Act provides for imposition of penalty in lieu of prosecution. ·\n\nThe contention on behalf of the assessee is that there is no provision i•,1 the Central Act for imposition of penalty for delay or default in payment of tax, and, therefore, imposition of penalty under the provisions of the State Act for del'ay or default in payment of tax is illegal.\n\nThe rival contention on behalf of the Revenue is that the provision for penalty for default in payment of tax as enacted h1 the State Act is upplicable to the payment and collection of the tax under the Central Act and is incidental to 'llnd part of the process of such payment and\n\ncollection.\n\nThe Solicitor-General on behalf of the Reve'.me placed reliance on th<.: decisions in K. V. Adinarayana Setty v. Commercial Tax Officer, Kolar Circle, Kolar 14 S.T.C. 587; Commissioner of Sales Tax, Madhya Pradesh, Indore v. Kantilal Mohan/al & Brothers 19 S.T.C. 377; M/s H. Jf. Esufali H. M. Abdulali v. Commissioner of Sales Tax M.P. l ndore 24 S.T.C. 1; and Auto Pins (India) v. The State of Haryana & Ors. 26 S.T.C. 466 in support of his contntion.\n\nThe contentions of the Solicit::>r General are these : Section 9 ( 1) of the Central Act speaks of tax.\n\nThat section does aot mention penalty.\n\nTax will include collection and enforcement of payme,1t.\n\nThe words \"tax and penalty payable by a dealer under this Act\" indicate that the . word~ \"under this Act\" in the Central Act relate only to a dealer.\n\nSection 9 (2) of the Central Act is a provision prescribing the procedure for assessing, collecting and enforcing payment :>f tax. 'The words. \"collect and enforce payment of tax, including any penalty\" in Sec:tion 9(2) of the Central Act ir1clude not only penalties imposed py the Central Act but also penalties under the State Act. The words \"as if the tax or peaalty payable by such •a dealer under this Act is a tax or penalty payable under the general sales tax law of the State\" indicate that tax or penalty is imposed by the Central Act and by incorporating the State Act as a 'Part of thP. Central Act the$abi!ity to pay tax is enforced by penalty for delay or default in payment of tax.\n\nThe Solicitor-General further submitted a.s follows : The latter part of section 9(2) of the Central Act, viz., \"for this purpose they may exercise all or any of the powers they have under the ge,1eral sales tax law of the State; •and4the provisions of such law ........ shall apply accordingly\" shows that the enforcement provisions in the State Act for delay or default in payment of tax are adopted by the Central Act for working out the provisions relating to assessment, re-assessment, collection and e;,1Eorcement of tax or penalties.\n\nPenalty is a sanction for non-payment. If the assessee does not pay and if there is no provision for imposition penalty, there will be no sanction for enforcement of payment The purpose for which the State Act is incorporated in the Ce,1tral Act is, int::.r alia, enforcing payment of tax which inc:ludes penalty for deloay and default in payment of tax. In short, just as penalty is imposed for non-payment of tax under the State Act that provision is attracted for delay or default, in payment of tax under the Cenrtal Act.\n\n' On behalf of the assessee it was said that the provisions. contained i11 section 9 ( 2) of the Central Act mean that only if tax as well as penalty is payatle by a dealer under the Central Act then there can be coHection and enforcement of tax and penalty in the same mal1'ner as provided i11 sales tax law of the State.\n\nSecond, the Central Act must lrave a substantive provision to wammt imposition of penalty.\n\nThe provision in a. State Act regarding penalty for default in payment cannot be applied when there is no substantive provision relating to levy or penalty in the Central Act in respect of that default.\n\nThird, se:ctim 9(2) of the Central Act is procedural and only deals with utilisation of existing m.:ichinery in State Jaw.\n\nThe: State authorities are empowered to exercise powers under the general sales tax law of the State to assess, re-assess, collect and enforce payment of tax and penalty payable under the Central Act.\n\nJust as tax payable under the Central Act can be collected and enforced similarly, only penalty payabie under the Central Act can be collected and enforced.\n\nCounsel on behalf of the assessees relied on the decisions in B. H.\n\nShah & Co. v .. The State of Madras 20 S.T.C. 146; The State of Madras\n\nv. M. Angappa_ Chettiar and Sons 22 S.T.C. 226; Guldas Narasappa Thimaiaiah Oil'Mills v. Commercial Tax Officer, Raichur 25 S:.T.C.\n\nKHEMKA & CO. v. MAHARASHTRA (Ray, C.J.) 761\n\n489; and Hurdatroy Jute Mills Private Ltd. Katihar & Ors. v. Superintendent of Commercial Taxes, Purnea & Ors. 30 S.T.C. 151 in support of the proposition that the substantive law for penalty under the State Act is not incorporated in the Central Act.\n\nSection 9(2) of the Central Act first provides that the authorities empowered to assess, re-assess, collect and enforce payment of any rax under the general sales tax law of the appropriate State sha:ll, on behalf of the Government of Lldia, assess, re-assess and enforce payment of rax including any penalty payable by a dealer under the Central Act.\n\nThe State Sales Tax authorities are thus created agents of the Government of India.\n\nThe second important part in section 9(2) of the Central i\\ct is that the State authorities shall assess, re-assess, collect and enforce payment of tax including any pe.rnlty payable by the dealer under the Central Act as if the tax or penalty payable by such a dealer under the Central Act is a tax or penalty payable under the general sales tax law of the State. This part of the section sets out the scope of work of the State agencies.\n\nThe words \"assess, re-assess, collect and enforce payment of tax including any penalty payable by dealer under this Act\" mean that the tax as well •as pe<a!!lty is payable only under the Central Act.\n\nTo suggest that the words \"under this Act\" qualify dealer will be unsound for two reasons.\n\nFirst, section 2 (b) of the Central Act defines a dealer.\n\nA dealer is not defined as dealer under the Central Act but as one who carries on business of buying a•ad selling. If the words \"under this Act\" were to relate only to dealer then the words \"under this Act\" would have to be scored out in relation to the words \"tax E including any penalty payable\".\n\nThe result would be that the words \"payable by a dealer\" in the context of the words \"as if the tax or pe1mlty payable by such a dealer under this Act\" would be rootless.\n\nIt is only tax as well as pe<.1alty payable by a dealer under the Central Act which can be assessed, re-as.sessed, collected and enforced in regard to payment.\n\nThe words \"as if the tax or penalty payable by such a dealer under the Central Act is a tax or penalty payable under the general sales tax law of the State\" have origin and root in the words\n\n\"payment of tax including any penalty payable by llealer under the Central Act.\" Just as tax under the State Act cannot be P'ayable and collected and enforced, similarly penalty under the State Act cannot be assessed, collected and enforced.\n\nThe words \"and for this purpose they may exercise all or any of the powers they have U'ader the general safos tax law of the State\" in section 9(2) of the Central Act are important.\n\nThe words \"and for this purpose\" relate to \"assess, re-assess, collect and enforce payment of tax including any penalty payable by dealer under this Act.\" . In that context; the last limb of section 9 ( 2) of the Central Act viz. \"and the provisions of such law ........ shall apply accordi,1gly\" mean that . the provisions of the State Act are applicable for the purpose of assess- H ment, re-assessment, collection aad enforcement of payment of tax\n\nincluding pen•alty payable under the Central Act.\n\nThe words of the last part of section 9(2) viz. \"shall apply accordingly\" relate clearly\n\nto the words \"1nd for this purpose\" with the result that the provisicrn or the StatG Act shall apply only for the purpose of assessment, reassessment, collection and enforcement.\n\nThe doctrine of efusdem\n\n~; e11eris shows ; hat the genus in section 9 ( 2) of the Central Act is \"for this purpose\". In other words, the genus is assessment, re-assessment, coflection and enforcement of payment.\n\nThe genus is appliC'able in regJrd to the procedure for assessment, re-as'icssment, collection and r.nfc1cement of payment. The genus is from whom to collect and\n\n~.~:ii:ist whom to en1forcc.\n\nIt is apparent that the extent of liability\n\nf, r tax as w1ll as penalty is not attracted by the doctrine of ejusd, m\n\n.~Ci!':'.' i.1 in th'~ application of the provisions of the State At in regard tn :.s,; ssment, re:assessment, collection and enforcement of payment of !.::x incllding any penalty payable under the Central Act. •\n\nThe deeming provision in the Central Act that the tax as well as penalty levied under the Central Act will be deemed as if payable under the general sales tax law of the State carmot possibly mem that tax or penalty imposed under any State Act will be deemed to be tax\n\nor prnalty payable under the Central Act.\n\nThe entire authority of the State machim, ry is that \"for this purpose\" meaning thereby the pur- D pose of assessing, re-assessing, collecting and e'aforcing payment of tax including any penalty payable under the Central Act, they, meaning , the State agencies, may exercise powers under the general sales toax\n\nlaw of the State.\n\nThe words \"for this purpose\" cannot have the:.effeet of enlarging the content of tax and the content of penalty payable u1.1der the Central Act.\n\nLiability to pay tax as well as liability to pay penalty is created by the Central Act.\n\nOne of the reasons why tax E as w.:11 as penalty is the substantive provision in the Central Act and is not incorporatd by reference to the State Act is illustrated by the history of section 9 ( 2) of the Central Act.\n\nThe present section 9 ( 2) of the Central Act was formerly section 9 (3) of the Central Act. The .Madras High Court in D. H. Shah & Co.'s case pointed out that the\n\nimposition of penalty under sectibn 12(3) of the Madras Act, 1959 could not be attracted for levy of penalty. The Madras High Court F gave the reason that then sectio•a 9(3) of the Central Act only adopted the procedure of the State Act for assesment, re-assessment, collection and enforcement of tax as well as penalty pay.able under the Central Act.\n\nThe Madras High Court in Angoppa Chettiar & Sons case ('supra) gave the. correct reason that the power to C'.)!lcct penalty under the G then section 9 ( 3) of the Central Act would cover only the penalty payable under the Central Act and would not include a power to impose penalty for a contravention or omission for which the Central Act did Mt contain a provision.\n\nIn that case, the Madras Genera:l Sales Tax Act, 1939 which was i•acorpomted by reference by section 9 ( 3) of the Central Act as' it then stood did not contain a provision for levv of a penalty. Subsequently, section 16(2) of the Madras Generlil H Sales Tax Ac:t 1959 provided for levy of penalty for failure to disclose a relevant turnover.\n\nThe conclusion which the Madras High Court\n\nKHEMKA & CO. v. MAHARASHTRA (Ray, C.J.) 763\n\narrived at was that provisions of then section 9(3) of the Central Act could \\.lot be applied for levy of a penalty under section 16(2) of the .\\Iadras Act.\n\nThe Mysore High Court in Guldas Narasappa Thimmaiah Oil Mills case (supra) which is the present appeal pointed out that the provisions contained in section 13 ( 1) and (2) of the State Act in regard to penalty for default in making payriJ.ent could not he applicable because a comparable provision was not to be found in the Cc<,1tral .:\\ct.\n\nThe Mysore High Court correctly pointed out that the words \"as if the tax or penalty payable by such dealer under this Act\" show that the words \"payable by such a dealer under this Act\" relate to tax or penalty which is payable only under the Central Act.\n\nThe Mysore High Court relied on the decision of this Court iri Swte of Kera/a v. P. P. Joseph & Co. 25 S.T.C. 483 in support of the proposition that the Sl'ate law is applicable only in regard to proc<?dure for assessmeat, re-assessment, collection and enforcement. If the liability to pay tax is determined by the provisions of the Central Act the liability to pay penalty is also that which is payable under the Central Act.\n\nThis Court in the Kerala case said that the procedural law prescribed in the general sales tax Jaw of the State applies to the matter of assessment, re-assessment, collection and enforcement of payment of tax 'under the Central Act because the frability to pay tax ls deter-nincd u.1der the Central Act.\n\nSimilarly, liability to pay penalty is determined with reference to the provisions of the Central Act.\n\nThis Court in Orissa Cement Limited v. the State of Orissa & An:·. 27 S.T.C. 118 considered whether rebate provided in section 13(8)\n\nc-'1' , h~ Orissa Sales Tax Act was available to dealers if they paid the lax mider the Central Act before tlfe due date of payment. It may be stated that at the relevant time of the decision in :the Orissa Cement case (supra) the provisions co1,1tained in the then s.ectioP 9 ( 3) .of the Central Act stated inter a/ia that \"the provisions of such Jaw including the provisions relating to returns, appf.!als, reviews, revisiom, references, penalties and compounding of offence~ shall apply accordingly,\" and the word \"rebate\" did not occur there.\n\nThis Court said that rebate for paymt!at of tax within the prescribed time under the State Act was •available to dealers for payment of tax under the Central Act on the reasoning that the power to collect the tax assessed in the same manner as the tax on the sale and purchase of goods under the general sales tax law of the State would include within itself all concessions given under the State Act for paymc.<,1t within the prescribed time.\n\nThe reason why rebate is allowed and penalty is disallowed is that rebate is a concession whereas penalty is an imposition.\n\nThe concession does not impose liability but penalty does.\n\nIt, therefore, stands to reasor. that rebate is included within the procedural part of collection and enforcement of payment.\n\nPenalty like impositicia of tax cannot be included within the procedural part.\n\nThe decision of this Court in C. A. Abraham, Uppoottil. Kottayam v.The Income Tax Officer, Kottayam & Anr. (1961) 2 S.CR. 765 was relied on by the Solicitor General in support of the proposition 1 tha•\n\n';;, tssessment\" ; ncludes iability to pay pmalty.\n\nThe ratio d the dcxision docs not support the submission. In Abraham's Lase (supra J the assessee was subjected to tax for suppressed income and pcn•,1ltics for conceali,1g the income.\n\nThe question was whether scctil':t .q of the Income Tax Act would attract liability to pay.\n\nSccclon H of the Act sl'atcd that the asscssee would be liublc to asscssmcnr under Chapter IV for the amount of tax payable and all the proYision~; of that Chapter would apply.\n\nThis Court said that the word \"a, sc~' ment\" had been used in its widest connotation in Chapter 1 V <.:·!· 1h~ Act. It was contended that an order imposing pewalty under section\n\n28 of the Act could not by virtue of section 44 be impl'Secl.\n\nThis Court held that section 44 of the Act expressly enacted thaJ: the prn- . visions of Chapter IV would apply to the assessment of a bt1siness carried on by a firm even after discontinuauce of its business. Section 2 S\n\nis one of the sei:tia.is in Chapter IV.\n\nSection 28 imposed a penalty for the concealment of income or the improper distribution of profits.\n\nThe defaults made in furnishing a return of the total incom1~, in complying with a notice and in concealing the particulars of income were treated as penalties under setion 28. Section 28 w•as held by this Court to be a provision euacted for facilitating the proper assessment of taxable income and to apply to >an assessment under Chapter IV.\n\nThe decision of this Court in Abraham's case (supra) is non-sequiter in regard to the contentions advanced on behalf of the Revenue in the present case.\n\nThe reason is that in Abraham's case (supra) •assessment and imposition of penalty is under the same Chapter in the Act.\n\nThe assessment is under Chapter IV. Penalty is provided in a section uiader Chapter IV.\n\nPenalty is arising in course of assessment under the s•ame Act.\n\nThis Court in Commissioner,, of Income-Tax, Andhra Pradesh v.\n\nM/s. Rhikaji Dadabhai & Co. (1961) 3 S.C.R, 923 dealt with the meaning of the word \"assessment.\" The Income-tax Officer there found that the assessce's books of accounts were unreliable and he issued a notice under section 40 of the Hyderabad Income-tax Act to show cause why penalty should ~10t be imposed in addition to tax.\n\nThe State of Hyderabad merged with the Indian Union during the pendency of the proceedings before the Income Tax Officer.\n\nBy section 13 of the Finance Act, 1950 the Hyderabad Income Tax Act ceased to have effect from 1 April, 1950, but the operation of that Act in respect of levy, assessment and collection of income tax and super-tax .in respect of periods prior thereto for which liability lo income-tax could not be imposed under the Indian Income Tax Act was saved by\n\nsection 13 (1) of the Finance Act. The question was whether the Income-tax Officer had power on 31 October, 1951 to impose penalty under section 40 of the Hyderabad Income Tax Act. This Court held that. the power of the Income-tax Officer to impose penalty under section 40 of the Hyderabad ct in respect of the year preceding the date of the repeal of the Hyderabad Income-tax Act was not Jost b.ecause section 13 of the Finance Act, 1950 saved its operation. The\n\nprocedings for imposing penalty could be continued after the enactment of the Finance Act, 1950. The decision of this Court in Bhikaii Dadabhat& Co's case (supra) shows that penalty is imposed as a substantive liability. '\n\nKHEMKA & co. v. MAHARASHTRA (Mathew, J.) 765-\n\nThe Income Tax Act 1961 imposes penalty up.der sections 270 and 271.\n\nThese sections in the focome Tax Act provide for imposition of penalty on contumacious or fradulent assessees.\n\nPenalty is in ::!ddition to income tax, if any, determined as payable by the assessee .. Tax and pell'a!ty like tax and interest are distinct and differeat concepts under the Indian Income Tax Act.\n\nThe word \"assessment\" could. co\\-cr penalty proceedings if it is used to denote the whole procedure for imposing liability on the tax payer as happened in Abraham's case (supra).\n\nPenalty is withi'.1 assessment proceedings just as tax is within assessment proceedings when the relevant Act by substantive charging provision levies tax as well as penalty. ·\n\nPenalty is not merely sanction. It is not merely adjunct to assessment.\n\nIt is 11ot merely consequential to assessment. It is not merely' machinery.\n\nPenalty is in addition to tax and is a liability under the Act.\n\nReference may be made to section 28 of the Indian Income-tax Act, : 922 where penalty is provided for concealment of income. Penalty is in addition to the amoU'at of income-tax.\n\nThis Court in Jain Brothers & Ors. v. Union of India 77 I.T.R. 107 said that penalty is not a continuation of assessment proceedings and that penalty parrakes of the character of additional tax.\n\nThe Federal Court in Chatturam & Ors. v. Commissioner of Incometa:r, Bihar 15 I.T.R. 302 said that fability does not depetad on assessment.\n\nThere must be a charging section to create liability.\n\nThere mmt be first a liability created by the Act. Second, the Act must provide for assessment. Third, the Act must provide for enforcement of the taxing provisions.\n\nThe mere fact that tRere is machinery for :i.sscssment, collection and enforcement of tax and penalty in the St1te Act does not mean that the provision for penalty in the State Act is treated as penalty under the Central Act.\n\nThe meaning of penalty\n\nundr the Central Act cannot be enlarged by the provisions of machinery of the State Act incorporated for working out the Central Act.\n\n1nis Court in State of Tamil Nadu v. K. A. Ramudu Chettiar & Co. A.LR. 1973 S.C. 2230 said that the power to enhance assessment which was contained in the Madras Act of 1959 though such power was not available under the 1939 Act would be available in respect of assessment under the Central Act.\n\nEnhanceme'.1t of assessment is in the process of assessment. It is a procedural power.\n\nThe liability to tax is created by the statute. Therefore, when the power to assess is attracted a fortiori enhancement is within the power.\n\nFor the foregoing reasons we 'are of opinion that the provision in the State Act imposing penalty for non-payment of income-tax within the prescribed time is not attracted to impose penalty on dealers under the Central Act in respect of tax and penalty payable under the Central Act.\n\nThere is no lack of sanction for payment of tax.\n\nAny dealer who would not comply with the provisioas for py ment of tax, would be subjected to recovery proceedings under the Public Demands Recovery Act. A penalty is a statutory liability. The\n\nCentral Act contains specific provisions for penalty. Those are the only provisions for penalty available against the dealers under the Central Act. Each State Sales Tax Act contains provisions for penalties. These provisions in some cases are also for failure to submit return or failure to regis!er.\n\nIt is rightly said that those provisions cannot apply to dealers under the Central Act because-the Central Act make~. similar provisions. The Central Act is a self contained code which by charging section creates !iablity for tax and which by other sections creates a liability for penalty and impose penalty. Section 9(2) of the Central Act create.s the State authorities as agencies to carry out the hssessment, reassessment, collection and enforcement of tax and penalty by a dealer under the Act.\n\nFor these re•asons the appeal of M/s Khemka & Co. is accepted.\n\nThe answer to the reference by the High Court is discharged. The question is answered in the negative, viz., that the Tribunal was wrong in holding that penalty could be levied under sectia.1 16( 4) of the Bombay Sales Tax Act, 1953. The appeal of the State of Mysore in Civil Appeal No. 2118 of 1970 is dismissed.\n\nThe appellant will b.: entitled to costs in Civil Appc•al No. 2089 of 1969. In view of the fact that in Civil Appeal No. 2118 of 1970 the Higi1 Court made no order as to costs, the parties will pay and bear their own costs.\n\nMATHEW, J. We take up for consideration Civil Appeal No. 2089 of 1969 and the decision there will govern the decision of Civil Appeal No. 2118 (NT) of 1970~\n\nThe questim for consideration in Civil Appeal No. 2089 of 1969 is, whether, upon a correct construction of s.9 of the Central ~)ales Tax Act (hereinafter referred to as the 'Central Act'), it was permissible for the Sales Tax Officer in question to invoke the provisions of s.16 ( 4) of the Bombay Sales Tax Act for imposing penalty for failure by the dealer to pay the sales tax pa)\"ablc under the Central Act within the prescribed time.\n\nThe High Court of Bombay held that the :Sales Tax\n\nOfTic, r had power to impose the penalty under that section and the questio,1 in this appeal is whether the High Court was right.\n\nSection 9 of the Central Act, in it; present form, was introduced in 1969 with retrospective effect from the date of the Act.\n\nSub-section\n\n(1) provides that the tax payable by any dealer under the Act on sal-::s of goods effected by him in the course of inter-S1ate trade or commerc2 shall be 1 evied by the Government of India and the tax so levied shall be collected by that Government in accordaace with the provisions of sub-section (2); and sub-section (2) says :\n\n\"Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, !:!-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of fadia assess, re-assess,\n\n.KHFMKA & CO. v. MAHARASHTRA (Ray, C.J.) 767\n\ncollect and cnforc~ payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by uch a dealer under this Act is a t•.:ix or penalty p::iyable und'T the general 'ales tax law of the State: and for this purpose they may exercise all or any of the powers they\n\nha-.c under the £re•.1crnl soalcs tax Jaw of the State; and the prnisions l1f such law. including provisions relating to returns, provisional assessment, advance payment of tax. reg:, tration of the transferee cif any business, imposition of the tax Jiabilit.y of a person carrying on busi•acss on the transferee of or successor to, such business, tmnsfor of liability of ary firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or petition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, penalties, compounding of offences a11d\n\ntreatment of documents furnished by a dealer as confidential shall apply accordingly.\" ·\n\nSection 16 of the Bombay Sales Tax Act provides for payment and recovery of tax. Sub-section (1) of the section says that the tax shall be paid in the maimer thereinaftcr provided at svch intervals as may be prescribed.\n\nSub-section (2) states that before any registered dealer furnishes the returns, he shall, in the prescribed manner, pay into a Government treasury the full amount of the tax due from him accord~ ing to such returns. Sub-section (3) provides that before any registered dealer furnishes a revised return wliich shows a greater amount of tax l.o bi; i due than was paynble in accordance with the original return, he shall pay into a Government treasury the extra amount of the tax. Sub-section (4) states tlrnt if the tax is not paid by any dealer within the prescribed time, the dealer shall pay, a penalty in addition to the amount of tax and sub-section (6) enables the realization of tax and penalty as an arrear of land revenue.\n\nA careful analysis of s. 9(2) of the Central Act would show that the authorities empowered to assess, re-assess, collect and enforce p2.ymcnt of tax payable under the general sales tax Jaw of the arpropriatc State shall assess, re-asseos, collect and enforce payment of, tax including any penalties payable by a dealer under the Central Act 1s if the lax or penalty payable by a dealer under that Act (Ccntr:il Act) is a tax ot' pcnaltv payable under the general sales tax Jaw of the State and for thrit purpose., the authorities may exercise all or any of the powers they have under the general sales tax Jaw of the State.\n\nTn effect, what s. 9 (2) says is that sales tax and pena!lies payabk by a dealer under the Central Act are deemed to be sales tax and penalties payable under the general sales tax law of the State and the sales tax authorities of the State can exercise all or any of the powers they have under the general ales tax law ofihe State for the purpose of assessment, re-assessment, collection and for nforcing payment of that tax.\n\nSo, if the sales tax authorities of a State have power, when enforcing payment of sales tax payable under the general sales tax law of the State co impose pc'.rnlty for non-p•; iyment of tax vl!thin the prescribed tnne, they will have a like power to impose\n\npenalty for enforcing payment of the tax payable under the Ce!C1tral A Act within the time prescribed. It was not necessary that power to impose penalty for enforcing the payment of tax payable by a dealer under the Central Act should have been specifically provided in or\" conferred separately by the sub-section upon the sales tax authorities of the State, because, the power to enforce payment of tax payable under the Central Act in the same manner as the power to enforce tax payable under the gelljeral sales tax law of the State has been given B. by it. As the power to impose penalty is specifically provided for in s. 16 of the Bombay Sales Tax Act for enforcing payment of tax payable under it, it is unnecessary to speculate whether, but for the express provision in that Act, a power to impose penalty for enfbrcement of tax payable under that Act would have been implied. The object of the provision for the imposition of penalty in s. 16 of the Bombay Sales Tax Act is to provide a stimulant to the dealer to observe the C mandate of the section directing the payment of the tax within the prescribed time .. In other words the provision for imposition of peDtalty in s.16 of the Bombay Sales Tax Act facilitates the collection of tax as it is a sanction for non-observance of the duty to pay the tax within the prescribed time. It operates as a deterrent against the commission of breach of that duty, and is a means to enforce the payment of tax within the time prescribed.\n\nIn C. A. Abraham Uppoottil v. The Income Tax Officer( 1) this Court was concerned with the question whether the appellant before the Court who was carrying on business in foodgrains in partnership with another person was liable to a penalty .for submitting the returns of the income o~ the firm even after his. partner's death.\n\nIt was found that certain iucome of the firm wa~ concealed and the Income E Tax Officer not only assessed the firm to tax for the suppressed income but also imposied penalty for concealing the same. Section 44 of the Indian Income Tax Act, 19220 at the material time stood as follows :\n\n\"Where any business.... . carried on by a firm ...... has been discontinued ...... every person who was at the time of such discontinuance .... a partner of such firm, shall in respect of the income, profits and gain of the firm be jointly F and severally liable to assessment under Chapter IV for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment.\" It was contended for the assessee that a proceeding for imposition of penalty and a proceeding for assessnent of income tax were distinct, that although s. 44 may be resorted to for assessing tax due and G payable by a firm which has discontinued, an order imposing penalty under s. 28 cannot, by virtue of s.44, be passed. The Court said that penalty \"is imposable as a part of the machinery for assessment of tax liability\". 'The Court quoted with approval the following observations of Subba Rao, C. J. in Mareddi Krish11a Reddy v. Income-tax Officer, Tenali(2) : \" .... The defaults enumerated therein (in s. 28) relate H to the process of assessment.\n\nSection 28, therefore, is a ----- --·-----\n\n\n(2) [1957] 31 I.T.R. ms.\n\nKHEMKA & co. v. MAHARASHTRA (Mathew, /,) 7 6 9\n\nprovision enacted for facilitating the proper assessment ot taxable income artd can properly be said to apply to an assessment made under Chapter IV .... \"\n\nThe ratio o~ the decision is that penalty is imposed as part of the: machinery for assessment of tax and that the power to assess would include the power to impose penalty for the effective exercise of the power to assess.\n\nIt is a general principle of law that all powers which are necessary and appropriate to effectuate the main grant of power will be implied, Just as the provision for imposition of penalty under s. 28 of the Income Tax Act, 1922 facilitated the collection of tax as Subba Rao, C. J. has said and ls imposable as part of the machinery for assessment of income tax, so also the provision for penalty under s. 16 ot the Bombay Sales Tax Act for non-payment of sales tax within the time prescribed would\n\nfacilitate the collection of tax and is part of the machinery for enforcing payment of tax.\n\nJn Commissioner of Income Tax v. Bhikaji Dadabhai & Co.( 1) the Income Tax Officer in question found that the books of account of the respondent were unreliable and after assessing the income for the year 1946-47, issued notice to the respondent on December, 22, 1949, under s. 40 of the Hyderabad Income Tax Act to show cause why penalty should not be levied in addition to the tax and, by an order dated 31-10-1951 directed payment of the penalty.\n\nThe State of Hyderabad merged with the Indian Union during the peadency of the proceedings before the Income Tax Officer and b'y s. 13 of the Finance Act, 1950, the Hyderabad Income Tax Act ceased to have effect from April 1, 1950, but the operation of that Act in respect of levy, assessment and collection of income tax and super tax in respect of the period prior thereto for which liability to income tax should not be imposed under the Indian Income Tax Act was saved.\n\nOne question before this Court was whether the Income Tax Officer had power on October 31, 1951 to impose penalty under s. 40(1) of the Hyderabad Income Tax Act.\n\nThe Court held that the power of the Income Tax Officer to impose penalty under s. 40(1) of the Hyderabad lnC'Ome Tax Act in respect of the years preceding the date of the repeal of that Act was not lost because by s. 13 of the Finance Act, , 1950, the operation of the Hyderabad Act in respect of levy, assessment and collection of income tax and super tax in respect of the period prior to April 1, 1951 was saved and therefore the proceedings for imposing the penalty could be continued even after the enactment of s. 13(1) of the Indian Finance Act, 1950.\n\nThe real significance of the ruling for the point under consideration here is that at the time when the penalty was imposed, the only provisions of the Hyderabad Income Tax Act which survived the repeal were those relating to levy, assessment and collection of income tax and super tax in respect of the period prior to April 1, 1951 and un- . less the power to impose the penalty was included within the power H to levy, assess, or collect the tax, the imposition of oenalty would have been ultra vires the power of the Income. Tax Officer.\n\n\nIn Orissa Cement Limited v. The State of Orissa & A nother(I), the question was whether a dealer under the Central Act could claim the benefit of s. 13(8) of the Orissa Saks Tax Act, 1947, whkh prcvided that rebate of one per cent on the amount of tax payable by a dealer shall be allowed if such a tax is paid by the dealer on or before the due date of payment, by virtue of s. 9 (3) (as it stood then) of the Central Act.\n\nThis Court said that the rebate was offered to facilitate, expedite and stimula.te the collection of tax an'd was part of the process of collection and that the appellant-dealer who paid the tax on the due date wa~ entitled to the rebate.\n\nIf rebate can be given on the basis that it would facilitate, ex.- pedite and stimulate the collection of tax, we see no reason why a penalty cannot be imposed to expedite, facilitate and stimulate the collec!ion of tax and as part of the process of collection. It is said that penalty is the imposition of a liability and is substantive in character whereas rebate is a concession and is part of the procedure.\n\nWe are not clear whether this is a distinction at all. Payment of rebate is a liability frcm the point of view of the Revenue, though it is concession from the point of view of the assessee. If penalty is levy of money on an assessee, rebate means . payment of _money t'O an assessee. What then is the differen:e? No body has yet succeeded in drawing the precise line between a procedural and substantive provision and in this case we do not think we are required to do so for the simple reason that we are only concerned with the question whe-. ther for the purpose Qf enforcing the payment of tax payable under the Central Act, the authorities 'Of the State can exercise all the powers they have under the gee.era! sales tax law of the State whether one characterizes them as procedural or substantive.\n\nIt is difficult to imagine that Parliament, wlien it enacted s. 9(2) of the Central Act and adopted the machinery of the general sales tax law of the State fol\" enforcing payment of tax payable und1r the Central Act, did not want to avail of the sanction of penalty for enforcing the payment of it which the general sales tax law of the State provides for enforcing payment of tax due under that law.\n\nWe find it difficult to hold that Parliament invested the state authorities with power to assess, re-assess, collect and enforce payment 'Of tax payable under the Central Act as if the tax is tax payable under the general sales tax law of the State, but denuded them of their power to invoke the provision in the general sales tax law of the state for imposition\n\n(I) 27 S.T.C. 118.\n\nF ' G\n\nKHEMKA & co. v. MAHARASHTRA (Mathew, J.) 771\n\nof penalty for enforcing payment of the tax payable thereunder, as that is an effec'tive means to the enforcement of payment of tax within the prescribed time.\n\nIt was contended that only the pena!ties expressly provided for in the Central Act could be imposed by the sales tax authorities of the State by employing the machinery for collecti'on of tax under the general sales tax law of the State and that no penalty which is not provided for by the Central Act could be imp'osed by the State authorities.\n\nIn this connection, the appellant placed great reliance upon the decision of a Division Bench of the Calcutta High Court in Mohan Lal Chokhany v. The Conunercial Tax Officer(!).\n\nThe I question there was whether penalty can be imposed for failure to submit the return bY a dealer under the Central Act though only the general sales tax law of the State provided for it.\n\nThe Court came to the c-onclusion that no penalty can be imposed.\n\nFor doing so, the Court said : firstly, that by s. 9(2) of the Central Act, the whole\n\nmachinery provided in the .general sales tax law of the State has not been incorpprated in the Central Act; secondly, that the authorifa:s for the time being empowered to assess, re-assess, collect and enforce payment of any tax unaer the general sales tax law of the appropriate State are only so empowered \"on behalf of the Government of India\" suggesting thereby that the Government of India is to be the principal and the State only the agent and that the agent can have no greater power than the principal himself, so that if the principal has no pm1.; r tu impose penalty for non-submission or delayed submission of returns, the State, \"on behalf of the Government of India\", cannot impose such penalty, thirdly, thats. 9(2) speaks only of penalty payable under .\n\n\"this Act\" (Central Act) and not of any penalty payable under State law; fourthly, th•at the power of state authorities is qualified by the words \"as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State\", that this is the deeming provision and can deem no more than what it says, namely, that the \"penalty payable under this (Central) Act\", and not any other penalty, will be deemed 'as if' payable under the general sales tax law of the State; and, fifthly, that the expressions in s. 9(2) of the Central Act \"for this purpose they may exercise all or . any of the. powers they have under the general sales tax law of the\n\nState\" are limiting words, viz., for the enforcement of tax and the penalries specified in the Cen•ral Act\n\nWe do not understand how the analogy of principal and agent has any relevance in this context. If the power of enforcem 'nt of payment\n\n(I) 28 S.T.C. 367.\n\nof tax payable under the Central Act. conferred on_ the auhoriies of the State would include the power to mipose penalties provided m the general sales tax law of the _State, there i? an end o~ the matter. 'P1e\n\nwhole fallacy in the reasomg ?f the High. Court 1s the .assumption that only the penalties provided m the Central Act can be imposed by the authorities by using the machinery of the sales tax law of !he State as they alone are specifically mentioned in s. 9(2) and in ignormg what B are the powers actually conferred by the words \"enforce P.aymen~ of . tax .... as if the tax .... payable by such a dealer under this Act is a\n\ntax ...... payable under the general Sales tax law of the State\"', in the sub-section.\n\nThe marginal note of s. 10 of the Central Act is 'penalties' and the section enumerates six grounds for imposing penalty from (a) to (f) : (a) failure of a dealer to get himself registered as required by s. 7; (b) a registered dealer falsely representing when purchasing any clas\" of goods that the goods of such class are covered by his certifkate of registration; (c) not being a registered dealer, falsely representing when p; urchasing goods in the course .of inter-state trade or commerce that he is a dealer, (d) after purchasing any goods for any of the purposes specified in clause (b) of sub-section (3) of s. 8, failing without reasonable excuse to make use of the goods for any such purpose; (e) havi!Jg in his possession any form prescribed for the purpose of sub-section ( 4) of s. 8 which has not bi:en obtained by him in accordance with the provisions of the Act or any rules made thereunder; and (f) collecting any amount by way of tax in contravention of the provisions contained in s. 9A. When a person comes within any 0£ these six grounds he shall be punishable with simple imprisonment which\\ may extend to six months or with fine or with both and when the 1, offence is a continuing offence, with a daily fine which may exten\" to Rs. 50 per day during which the offence continued.\n\nSub-section ( 1) of s. lOA provides that if any person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause\n\n(d) of s. 10, the authority who granted to him or, who is competent to grant to him a certificate of registration under the Act may, after giving him a reasonable opportunity of being heard by order in writing, impose upon him by way of penalty a sum' not exceeding one-and-a-half times the tax which would have been levied und1!r\n\nsub-section (2) of s. 8 in respect of the sale to him of the goods if the sale had been a sale falling within t!iat sub-section.\n\nSub-section (2) says that penalty imposed upon any dealer under sub-section (l)\n\nhall be colected by the Government of India in the manner provided m sub-section (2) of s. 9. ·\n\nIt is clear from s. 9(2) that the penalties which can be imposed by the State authorities by virtue of the express provision in it are th;! penalities provided in section 10 read with s. lOA.\n\nThe fact that s. 9(2) expressly authorizes the sales tax authorities of the State to\n\nKHEMKA & co. v. MAHARASHTRA (1\\tluthew, /,) 77 3\n\nip.1pose the pen_alties payabie by a dealer under the Central Act by employing the machinery of the general sales tax law of the State does not mean that they have no power to enforce payment of tax payable under the Central Act by imposing penalty as provided in the general sales tax law of the State.\n\nAs we said, by virtue of s. 9 ( 2), the machinery provided in the general sales tax law of the appropriate State for assessment, reassessment, collection and enforcement of payment of tax payable under the Central Act has been adopted and that machinery necessarily includes the means and facilities provided in that law for the effective exercise of the power to assess, re-assess, collect and enforce payment of tax; and, therefore, the absence of an express provision in the Central Act for imposition of penalty for nonpayment of tax within the prescribed time would not i.ndicate that for enforciag payment of tax payable under the Central Act, the authorities of the State have no power to impose the penalty. When s. 9(2) says that assessment, re-assessment, collection and enforcement of payment o~ tax due under the Central Act should be made by the authorities of the State as if the tax payable under that Act is tax payable .under the general sales tax law of the State and for that purpose \"they may exercise all or any of the powers they have under the sales tax law of the State\", there can be no manner of doubt that if, for enforcing payment f tax due under the sales tax law of the State, they have power to impose penalty, they have the same power of imposing penalty for enforcing payment of tax payable under the Central Act. The express provision in s. 9(2) enabling the imposition of penalties payable under the Central Act by the sales tax authoritir of the State does not in any way derogate from the grant of power to those authorities to enforce the payment of tax payable under the; Central Act as if the tax was payable under the general 1sales tax Jaw of the State and to enforce payment of it under the machinery of the general sales tax law of the State.\n\nThe reason why the sales tax authorities of the State were given specific power under s. 9(2) to epforce the penalties payable by a dealer under the Central Act is that those penalties were not and perhaps could not have been provided for in the sales tax law of the State.\n\nThe penalties provided for in s. 10 read with s. lOA of the Central Act are not for the purpose of or in connection with assessment, re-assessment, collection and enforcement of payment of tax payable by a dealer under the Central Act and could not have been imP'osed by the sales tax authorities of the State in making assess'ment, re-assessment, collection or in enforcing payment of the tax payable under the Central Act. Therefore, express power had to be conferred upon the sales tax authorities of the State to enforce the penalties payable by a dealer under the Central Act.\n\nThis does not mean that these authorities have no power to impose the penalties provided in the general sales tax law of the State and which are necessary to make power of assessment, re-assessment, collection or en; forcement of payment of tax effective.\n\nHow could these penalties have been separately prnvided for in the Central Act when it is seen that the sales tax authorities of the State were given power to assess, reassess, collect and enforce payment o~ tax payable under the Central Act as if that tax were tax payable under the general sales tax law of the State and to exercise all or any\n\nof the powers they have under the sales tax law of the State for that purpose ? Parliament must be presumed to know when it adopted the machinery of the general sales tax law of the State for assessment, re-assessment, collection and enforcement of tax payable under the Central Act, the existence of the provisions for imposition of penalty in connection with and for the purpose of assessment, reassessment, collection and enforcement cf payment of tax in the sale tax law of the State. Therefore, there was no necessity to provide separately for\n\npe:nalties in connection therewith in the Central Act or give express power to sales tax autlrorities of the State for imposition of penalties in connection therewith. If, in the process of or for the purpose of assessment, reassessment, collection and enforcement of payment of tax pa.yable under the sales tax law of the State, a penalty can be imposed, we do irot understand why it cannot be imposed in the process of or for the purpose of making the assessment, re-assessment, collection or enforcement of payment of tax payable under the Central Act. Is it possible to imagine any reason for Parliament to withhold from the saks tax authorities of the State an effective means for enforcing the payment of tax payable under the sales tax law of the State and which is specifically provided for in that law for collection of tax payable under the Central Act? We think not.\n\nAs we said, in the nature and the scheme of the Central Act, it was not necessary to provide for imposition of penalty or for the other methods of enforcing the payment of tax payable under the Central Act since Parliament has adopted the machinery provided in the general sales tax law of the State as respects enforcement of the tax payable under the Central Act.\n\nThe decisions in B. H. Shah & Co. v. The State of Madras(!), The Swte of Madras v. M. An gap pa Chettiar & Sns (2), Guldas Narasappa Thimmaiah Oil Mills v.\n\nCommercial Tax Officer, Raichur( 3 ) and Hardatroy Jute Mills Pvt. Ltd. v. Superintendent of Commercial Taxes.\n\nPumea(4) relied on by the appellants do not require any elaborakconsideration as they do not advance any reasons other than thrn; e already referred !o in this judgment.\n\nThe reasoning of the Madras High Court in B. H. Shah & Co.'s case to the effect that Parliament could, not ave adopted by s. 9(3) of the Central Act (substariti{tlly\n\ncorrespondmg to present s. 9(2) of the Central Act) a provision o.f the general sales tax law of the State which was not in existence at the time of the enactment of s. 9(3) has no relevance here.\n\n. The appellant did not contend . that the provision in question for imposi.tion of penalty in the general sales tax law of the State was not in , existence at the relevant time and therefore they could not in any\n\nevent h'!ve been adopt1d by s. 9(2). Wtdo not therefore think it necc., sary or proper to consider the question whether Parliament can b'y legislation adopt a State law and the future amendments thereto.\n\nJt was argued that the expression 'penalties' occurring in the latter\n\nart of s. 9(2) must refer to the penalties mentioned in the former part\n\n(I) 20 S.T.C. 146..\n\n(2) 22 S.T.C. 226.\n\n(3) 25 S.T.C. 489.\n\n(4) 30 S.T.C. 151.\n\n. KHEMKA & CO,, v. MAHARASHTRA (Mathew, J.) \\ 775\n\ncf the sub-section, namely, penalties payable by a dealer under the Central Act.\n\nWe see no reason why the expression 'penalties' in the laiter part of the sub-section should refer to the penalties payable by\n\na dealer under the Central Act at all.\n\nThe expression 'penalties' in the latter part of the sub-sec!ion can only refer to penalties imposable under the rreneral sales tax law of the State in connection with assessment, rcas;-essmcnt, collection and enforcement of payment of tax. The. latter part of the sub-section only enumerates some of the powers exercisable by the sales tax authorities of the State to assess, reassess, collect and enforce payment of tax payable under the Central Act.\n\nThe language of the sub-section beginning with \"and for this purpose they may exercise all or any of the powers they have under the general\n\nsales tax Jaw o~ the State; and the provisions of such law, including rrovisians relating to returns, provisional assessment, advance payment of tax ........ appeals, reviews, revisions, references, refunds, penalties. . .. \" makes it clear that the word 'penalties' occurring therein. can refer only to penalties provided in the general sales tax law of the State.\n\nJn other words. the express mention of the power to impose 'penalties' among the enumerated powers beginning with the words \"and the provisions of such Jaw including the provisions relating to ...... pnalties\" would put it beyond doubt that the word 'penalties' in the latter part of the sub-section can only refer to penalties imposable under the general sales tax law of the State in relation to assessment, reassessment, collection and enforcement of payment of, tax payable thereunder.\n\nWe hold that the Sales Tax Officer was empowered to impose penalty provided in s. 16 ( 4) of the Bombay Sales Tax Act for non-payment of the tax payable under the Central Act within the prescribed time. We would dismiss Civil Appeal No. 2089 af 1969 and allow Civil Appeal No. 2118 (NT) of 1970 without any order as to costs.\n\nI3EG, J .-Civil Appeal No. 2089 of 1969 arises out of an assessment ordi;-r relating to the period of assessment from 1-4-1959 to 30-12-1959.\n\nThe order purports to have been made under the Central Sales Tax Act o.f 195 6 (hereinafter referred to as the 'Central Act') and the assessment year given there is 1962-63.\n\nThe total sales tax was assessed at Rs. 44, 181.92.\n\nIn addition, a penalty of Rs. 8347.32 was levied for delay in payment.\n\nThe order passed on the appeal to the Assistant Commissioner of Sales Tax shows that the only point pressed in the appeal related t-o the penalty levied under Section 16(4) of the Bombay Sales Tax Act of 1953, (hereinafter referred to as 'the Bombay Act of 1953').\n\nAs the appeal was rejected, a revision application was filed before the Sales Tax Tribunal. Bombay, which also upheld the penalty imposed under Section 16(4) of the Bombay Act of 1953.\n\nThis provision laid down:\n\n\"16(4) )f the tax is not paid by any dealer within the prescriocd time the dealer shall pay, by way of penalty in addition to the amount of tax, a sum equal to (i) one percent of the amount of tax for each month for the first three\n\nmonths after the expiry 'Of the prescribed time, and (ii) two and one-half per cent .for each month subsequent to the first three months as aforesaid during which he continues to make default in the payment of the tax.\n\nProvided that, where the tax has not been paid by any dealer within the prescribed time but the dealer has filed an appeal or an application for revision in respect of such tax, the authority hearing the appeal or the application for revision may direct that the penalty in respect of any period shall be paid at such rate as it may think fit, the rate being not less than one per cent and not more than two and one half per cent of the amount of tax for each month\".\n\nThe High Court had, upon a reference to it, decided in favour of the Department the question framed as follows :\n\n\"Whether having regard to the facts and circumstances o.f the present case which is under the Centni.l Sales Tax Act, 1956, the Tribunal was justified in law in holding that . penalty could be levied under Section 16(4) of the Bombay\n\nSales Tax Act, 19 5 3 ?\"\n\nIn the appeal now before us by special leave it has been contended for the assessee that the penalty was levied without jurisdiction as it was not warranted by the provisions of Section 9(2) of the Central Act, 1956.\n\nCivil Appeal No. 2118 of 1970 arises out of an assessment order\n\nrelating to the assessment year 1964-65 under the Central Act for a E sum of Rs. 14,332.80 np. and a penalty 'Of Rs. 10,104.36 ps. levied for default in the payment of penalty imposed under Section 13 of the Mysore Sales Tax Act of 1957, (hereinafter rderred to as 'the Mysore Act'), which was assumed to be applicable by reason of Section 9(3) of the Central Act.\n\nThe relevant provision of the Mysore Act lays down :\n\n\"Payment Md recovery of tax\n\n(1) The tax under this Act, shall be paid in such manner and in such instalments, if any and within such time, as may be prescribed.\n\n(2) If default is made in making payment in accordance with subsection (1) :\n\n(i) the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the propertie~ uf the person or persons liable to pay the tax under this Act; and\n\n(ii) the person or persons liable to pay the tax under this Act shall pay a penalty equal to-\n\n(a) one per cent of the amount of tax remaining unpaid for each month for the first three months, after the expiry of the time prescribed under sub-section ( 1) and\n\nKHEMKA & CO, V, MAHARASHTRA (Beg, J.) 777\n\n(b) two and one-half per cent o, f such amount for each month subsequent to the first three months as aforesaid.\n\n(3) Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered-\n\n( a) as if it were an arrear of land revenue, or\n\n(b) on applicati'On to any Magistrate, by rnch Magistrate as if it were a fine imposed by him .... \"\n\nIn this case, the Commercial Tax Officer, Raichur, filed application under Section 13(3)(b), of the Mysore Act before the Munsif Magistrate of Raichur for recovery qf the sum due as penalty as if it was a fine imposed by the Court.\n\nThe Munsif Magistrate having issued a distress warrant for recovery of this sum, the assessee applied to the High Court under Section 13(4) of the Mysore Act which reads as follows :\n\n\"The High Court may either suo motu or an application by the Commissioner or any person aggrieved bY the order revise any order made by a Magistrate under clause (b) of sub-section (3)''.\n\nThereafter, the assessee filed a Writ Petition which was heard together _wjth the Sajes Tax Rev!sio_n petition. The High Court had allowed the assessee's claim that the levy of penalty was ultra-vires.\n\nThe State of Mysore had, therefore, come up in appeal by special leave to this Court.\n\nI have had the advantage of going through the judgments of the learned Chief Justice and my learned brother Mathew.\n\nEven if I was of the opinion that two views on an interpretation •of Section 9(2) of the Central Act are equally well entertainable, as one could be on a mere reading of Section 9(2) of the Central Act only, I would, with great respect, prefer the view adopted by the learned Chief Justice on the principle that the assessee must get the benefit of such uncertainty. It, however, seems to me, on a careful consideration of the two possible views, that reasons for accepting the contentions on behalf of the assessee are quite compelling and decisive, I, therefore, proceed to tate these shortly.\n\nSo far as the case from Bombay is concerned, I find that Section 76(a) \"Of the Bombay Sales Tax Act of 1959 (hereinafter referred to as 'the Bombay Act of 1959'), repeals the Bombay Act of 1953.\n\nSection 16 of the Bombay Act of 1959 refers to an entirely different subject matter.\n\nProvisions relating to penalties are contained in Section 36 to Section 38 of the Bombay Act af 1959, which have been amended from time to time.\n\nIn any case, there wa.s no provision, at the time when the assessment order was made, for imposition of any penalty under Section 16(4) of the Bombay Act 'Of 1953, which the Sales Tax authorities and the High Court sought to utilize to justify the penalty imposed.\n\nRelying upon the principles indicated by this Court in Re Delhi Laws Act (1912) etc.,(1) I think one could say that in 1956 the Parliament couJ.d not have applies its mind to provisions which came into existence afterwards. lt could not, therefore, have incorporated them by reference as parts of a procedure applicable to assessments which took place, after 1959 when the Bombay Act of 1953 was repealed.\n\nAt the time of the passing of the Central Act, the relevant statute in existence in Bombay was the Bombay Act of 1953.\n\nBut, Section 16(4) of the Bombay Act of 1953 under which the Sales Tax authorities purported to act, did not exist on th~ statute book at the time of assessment.\n\nUnless we assume that Section 9(2) of the Central Act, by a necessary implicati'on, authorises the State Legislatures to go on imposing such penalties for such brcaces of duty as it pleases them to lay down on behalf of Parliament, subsequently enacted provisions of State enactments would not be available.\n\nI also find from the Mysore A<:t of 1957, that Section 13 of the Act was entirelv re-cast in 1958.\n\nIt would, I think be carrying the theory of referential legislation too far to assume that Section 9(2) of the Central Act 1956 purported to authorise the State Legislatures to impose liabilities in the nature of additi'onal tax or penalties kaving their rates and conditions for their imposition also to be determined by the State Legislatures as and when the State Legislatures decided to impose or amend them.\n\nIt is evident that these differ from State to State. and, in the same State, at different times.\n\nA rnnfrrment of such an uncontrolled' power upon the State Legislatures could, if it was really intended. be said to travel beyond the province of permissible delegated legislation on the principles laid down !long\n\nago by this Court in Re-Delhi Laws' case (supra) as no guide lines are l'iven in Section 9(2) about the nature, condifrons, or extent of pena'ities leviabk.\n\nH such a power was really conferred would it not amount to an abdication of an essential legislative function with respect to a matter found as item 92A of the Union List I of the Seventh Schedule so that, accwding to article 246(1) of our Constitution. Parlimnent has exclusive power to legislate on a topic covered by it ? As this question was not argued before us I would only say that the correct cannon of construction to apply in such a case is that we sh'Ould so interpret Section 9(2) of the Central Act, if possible, that no part of it may conceivably be invalid for excessive delegation.\n\nThe well known maxim applicable in such cases is : ut res magis\n\n\\'(l/t?i/[ f{lli/11! p<'I fa/.\n\nIt is evident from Section f6E4> of the Bombay Act of 1953_ :that there is a particular percentage of f!le amount .of tax levied which is prescribed as penalty to be paid as an \"additi'on to the amount of\n\ntax for every month after the expiry of the prescribed period of default\"_ In other words, it is a liability itl the nature of an additional or penal tax.\n\nSection l 3(3)(b) of the Mysore Act also makes it clear that, on an application made to the Magistrate, such as the one made in the case which has come up before us from Mysore, the penalty may be equated with a fine.\n\nSection 63 of the Bombay Act\n\n(l) [1951] S.C.R. 747.\n\nKHEMKA & co. v; MAHARASHTRA (Beg, /.) 779\n\nof 1959 speaks of certain \"offences and penalties\".\n\nIndeed, Chapter 8 of that Act is itself headed as \"Offences and Penalties\".\n\nOn a consideration of the provisi'Ons mentioned above, it seems to me to be clear that whatever may be the objects of levying a penalty, its imposition gives rise to a substantive liability which can be viewed either as an additional tax or as a fine !'or the infringement of the law.\n\nThe machinery or procedure for its realizatron comes into operation after its imposition.\n\nIn any case, it is an imposition of a pecuniary liability which is comparable to a punishment for the commission of an 'Offence. lt is a well settled cannon of construction of statutes that neither a pecuniary liability can be imposed nor an offence created by mere implication. It may be debatable whether a particular procedural provision creates a substantive right or liability.\n\nBut, I do not thinR that the imposition of a pecuniary liability, which takes the form of a penalty or fine for a breach of a legal obligation, can be relegated to the region of mere procedure and machinery for the realization of tax. It is more than that.\n\nSuch liabilities must be created by clear, unambiguous, and express enactment.\n\nThe language used should leave no serious doubts about its effect so that the persoris who are to be subjected to such a liability for the infringement of law arc not left in a state of uncertainty as to what their duties or liabilities are. , This is an essential requirement of a good government of laws.\n\nIt is implied in the constitutional mandate found in Section 265 of our Constitution : \"No tax shall be levied or collected 1except by authority of law\".\n\nIt was argued on behalf of the State that Section 9(2) of the Central Act contains an express reference to provisions relating to, inter- ;;; lia, \"refunds, rebates, penalties, compounding of offences\".\n\nRelying upon these words in the last part of Section 9(2) of the Act,. it was urned that there is no manner of doubt that the penalties' leviable under the State law can be utilised for the purpose of enforcing the tax liabilities under the Central Act.\n\nSection 9 of the Central Act itself has undergone several amendments.\n\nIn 1956 it sto'Od as follows :\n\n\"9( l) The tax payable by any dealer under this Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub-section (2).\n\n(2) The authorities for the time being empowered to assess, collect and enforce payment of any tax under the genei-al sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and. enforce payJ!1ent of any tax payable by a' dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the\n\nState; and th1~ provisi:ons of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly.\n\n(3) The proceeds (reduced by the cost of collection) in any financial year of any tax levied and collected under this Act in any State. on behalf of the Government of India shall, except in so far as those proceeds represent proceeds attributable to Union territories, be assigned to . that State and shall be retained by it; and the proceeds attributable to Union -territories shall form part of the Conso!idated Fund of India\".\n\nIt was amended by Act 31 of 1958, and Act 29 of 1969, and Act 61 of 1972.\n\nWe are only concerned here with the amendment by Act 31 of 1958 because this Act introduced the provisions which were in operation at the time when the assessment orders under con .. sideration were made.\n\nSection 6 of the Central Sales Tax Second Amendment Act 31 of 1958 changed Section 9(2) and (3) and introduced sub-s. (4).\n\nThese provisions read as follows :\n\n\"(2) The penalty imposed upon any dealer under section 10-A shall be collected by the Government ol' 1ndia in the manner provided in sub-section (3) :\n\n(a) in the case of an offence falling under clause (b) or clause (d) of section 10, in the State in which the person purchasing the goods obtained the form prescribed for the purposes of clause (a) of sub-section (4) of section 8 in connection with the purchase of such goods;\n\n(b) in the case of an offence fallin_g under clause (c) of section 10, in the State in which the pcrs\"n purchasing the goods should have registered himself if the offence had nut peen committed.\n\n(3} The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales-tax law of the appropriate State shall. on behalf of th~ Government of India and subject to any rules made under. this Act, assess, collect and enforce payment of any tax, including any penalty, payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed paid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales-tax law of the State; and the provisions of each law, including provisions relating to returns appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly : '\n\nKHEMKA & CO. V, MAHARASHTRA (Beg, J.) 781\n\nProvided that if in any State or part thereof there is no ge.; eral sales-tax la\\v in force, the Central Government may, by rules made in this behalf, make necessary provision for all or any of the matters specified in this sub-section and such rules may provide that a breach 0£ any rule shall be punishable with fine which may extend to five hundred rupees; and where the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.\n\n( 4) The proceeds in any financial year of any tax including any penalty, levied and C'Ollected uncl.er this Act in any State (other than a Union territory) on behalf of the\n\nGoverment of India shall be assigned to that State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of lndja\".\n\nIt will be seen that Secti'On 9(1) of the Central Act 1956 provided only for \"the manr1er\" of levy and assessment as provided in Sec. 9(2). Again, the new Sec. 9(2), introduced by Act 31 of 1958, empowered the Government o.f India only \"to collect\" the penalties mentioned in Sec. lOA of this Act \"in the manner\" laid down in Sec. 9(3). It is. clear that Section 10, relating to the penalties provided by the Central Act, was meant for penalties by way of imprisonment and fine.\n\nSection lOA provided only for levy of certain penalties at the rate specified there in lieu of prosecutions under St'.c. 10. This is the only kind of penalty which was enforceable by the procedure laid down in Section 9(3) of the Act as it stood after the 1958 amendment. Section 9(2), after the Act 31 of 1958, also makes it clear that Section 9(3), which corresponded to the earlier Section 9(2) of the 1.956 Act only lays down \"the manner\" of this \"collection\" of the penalty.\n\nIn other words, Sec. 9(2) 'Of the Act, as it stood after 19.58, did not provide for an imposition of a penalty as a substantive pecuniary liability or tax. It only authorised collection of penalty in the manner laid down in Section 19(3) of the Central Act as it stood after 1958.\n\nThe imposition of a penalty was regulated exclusively by Sec. lOA of the Central Act and not by any provision of the State Act. ·\n\nIt has to be remembered that Section 9(2) of the 1956 Act, which corresponds to Section 9(3) after 1958, begins with : \"subj.ect to the other proyisions of this Act and the rules made thereunder, the authorities for the time being empowered to asess, re-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shaH .... \".\n\nIn other words, the powers of the State Sales Tax Officers are specifically limited by the provisrons of the Central Act.\n\nThey cannot go beyond these provisions.\n\nThe next part of Section 9(2) of the 1956 Act further emohasises this aspect by making it clear that these powers are exercisable only \"for this purpose\". In other words, they are not authorised too collect dues for purposes extraneous to the Central Act.\n\nWe may then go to the last part of Section 9(2) of the 1956 Act, which is strongly\n\nrelied upon on behalf of the States concerned, to urge that the State provisions relating not merely to collection of taxes but imposition of penalties are incorporated by reference il1!o the provisions of the Central Act. fn this debatable area, I think the true meaning can only be found by considering the provisions as a whole.\n\nThe context .of the whole sales tax law of the State as well as that of the law contained in the Central Act must be taken into account.\n\nAfter considering the provisions of the Central Act as well as the State Acts relating to penalties, one is irresistably driven to the conclusion that provisions relating to penalties are special and specific provisions in each Act.\n\nThey arc not part of \"the general sales tax law\" of either the State or of Union.\n\nIf the provisions relating to penalties, such as those found in the Central Act and the Stat..: Acts, arc really special provisions -.yhich can be invoked in the special circumstances given in each statute, we must interpret the reference to penalties in the concluding portion of Section 9(2), preceding th.o proviso; to relate only to the special provisions relating to penalti:es provided for specifically in the Central Act.\n\nI. think that the maxim of interpretation to apply here is : \"Exprrssiu U niw; exc/11sio a/terius\". This is explained as follows in 'vfaxwrll on the Interpretation of Statutes (12th Edn. p. 293);\n\n.. By the rule usually kn'own in the form of this Latin Maxim, mention of one or more things of a particular class may be regarded as silently excluding all other members of the class; expres.111111 facit cessare wcitwn''.\n\nNo doubt this maxim has been described as \"a useful servant hut a dangerous master\".\n\nI can, however, think of no kind of case more apt for its applicafron than the one before us.\n\nAs the Privy l.ouncil said long ago, with regard to a -statute purporting to impose\n\na charge in Oriemal Bank Corporation v. Wright, (1) that in such a case, the rule to be applied is \"that the intention to impose a charge\n\nupon the subject. must be shown by clear and unambiguous language\".\n\nIf the language leaves room for coming to the conclusion that only penalties specified iv. the Central Act. are enforceable by tt1c machinery for enforcement of liability under the general Sales Tax Jaw of a State, I think that the legislative intent could safely be presumed to be to C'Onfine penalties mentioned in the concluding part of Section 9(2) to only those mentioned specifically in the Central Act.\n\nFor the reasons given above, I respectfully concur with the opi nion expressed and the orders proposed by My Lord the Chief Justice.\n\nC.A. 2089 of 1969 allowed.\n\nC.A. 2118 of 1970 dismissed H\n\nP.B.R:\n\n(I) (1880) 5 App. Cas. 842 at 256.", "total_entities": 301, "entities": [{"text": "KHEMKA &CO", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "KHEMKA &CO", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 13, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "27th February, 1975", "label": "DATE", "start_char": 34, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "STATE OF MAHARASHTRA 27th February, 1975\n\n[A. 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"end_char": 40229, "source": "regex", "metadata": {"linked_statute_text": "Sccclon H of the Act", "statute": "Sccclon H of the Act"}}, {"text": "section 44", "label": "PROVISION", "start_char": 40264, "end_char": 40274, "source": "regex", "metadata": {"linked_statute_text": "Sccclon H of the Act", "statute": "Sccclon H of the Act"}}, {"text": "section 44", "label": "PROVISION", "start_char": 40311, "end_char": 40321, "source": "regex", "metadata": {"linked_statute_text": "Sccclon H of the Act", "statute": "Sccclon H of the Act"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 40499, "end_char": 40508, "source": "regex", "metadata": {"linked_statute_text": "Sccclon H of the Act", "statute": "Sccclon H of the Act"}}, {"text": "Section 28", "label": "PROVISION", "start_char": 40553, "end_char": 40563, "source": "regex", "metadata": {"linked_statute_text": "Sccclon H of the Act", "statute": "Sccclon H of the Act"}}, {"text": "Section 28", "label": "PROVISION", "start_char": 40831, "end_char": 40841, "source": "regex", "metadata": {"linked_statute_text": "Sccclon H of the Act", "statute": "Sccclon H of the Act"}}, {"text": "section 40", "label": "PROVISION", "start_char": 41707, "end_char": 41717, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 41735, "end_char": 41749, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Hyderabad", "label": "ORG", "start_char": 41824, "end_char": 41842, "source": "ner", "metadata": {"in_sentence": "The State of Hyderabad merged with the Indian Union during the pendency of the proceedings before the Income Tax Officer."}}, {"text": "section 13", "label": "PROVISION", "start_char": 41946, "end_char": 41956, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1950", "label": "STATUTE", "start_char": 41964, "end_char": 41981, "source": "regex", "metadata": {}}, {"text": "1 April, 1950", "label": "DATE", "start_char": 42038, "end_char": 42051, "source": "ner", "metadata": {"in_sentence": "By section 13 of the Finance Act, 1950 the Hyderabad Income Tax Act ceased to have effect from 1 April, 1950, but the operation of that Act in respect of levy, assessment and collection of income tax and super-tax .in respect of periods prior thereto for which liability lo income-tax could not be imposed under the Indian Income Tax Act was saved by\n\nsection 13 (1) of the Finance Act."}}, {"text": "section 13", "label": "PROVISION", "start_char": 42295, "end_char": 42305, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1950", "statute": "the Finance Act, 1950"}}, {"text": "31 October, 1951", "label": "DATE", "start_char": 42391, "end_char": 42407, "source": "ner", "metadata": {"in_sentence": "The question was whether the Income-tax Officer had power on 31 October, 1951 to impose penalty under section 40 of the Hyderabad Income Tax Act."}}, {"text": "section 40", "label": "PROVISION", "start_char": 42432, "end_char": 42442, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1950", "statute": "the Finance Act, 1950"}}, {"text": "section 40", "label": "PROVISION", "start_char": 42558, "end_char": 42568, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1950", "statute": "the Finance Act, 1950"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 42662, "end_char": 42676, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 13", "label": "PROVISION", "start_char": 42699, "end_char": 42709, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1950", "statute": "the Finance Act, 1950"}}, {"text": "Finance Act, 1950", "label": "STATUTE", "start_char": 42717, "end_char": 42734, "source": "regex", "metadata": {}}, {"text": "procedings for imposing penalty could be continued after the enactment of the Finance Act, 1950", "label": "STATUTE", "start_char": 42761, "end_char": 42856, "source": "regex", "metadata": {}}, {"text": "Bhikaii Dadabhat& Co", "label": "ORG", "start_char": 42888, "end_char": 42908, "source": "ner", "metadata": {"in_sentence": "The decision of this Court in Bhikaii Dadabhat& Co's case (supra) shows that penalty is imposed as a substantive liability. '"}}, {"text": "Income Tax Act 1961", "label": "STATUTE", "start_char": 43036, "end_char": 43055, "source": "regex", "metadata": {}}, {"text": "sections 270 and 271", "label": "PROVISION", "start_char": 43079, "end_char": 43099, "source": "regex", "metadata": {"linked_statute_text": "The Income Tax Act 1961", "statute": "The Income Tax Act 1961"}}, {"text": "These sections in the focome Tax Act", "label": "STATUTE", "start_char": 43102, "end_char": 43138, "source": "regex", "metadata": {}}, {"text": "section 28", "label": "PROVISION", "start_char": 44011, "end_char": 44021, "source": "regex", "metadata": {"linked_statute_text": "These sections in the focome Tax Act", "statute": "These sections in the focome Tax Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 44036, "end_char": 44050, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Act would be available in respect of assessment under the Central Act", "label": "STATUTE", "start_char": 45335, "end_char": 45404, "source": "regex", "metadata": {}}, {"text": "Those are the only provisions for penalty available against the dealers under the Central Act", "label": "STATUTE", "start_char": 46221, "end_char": 46314, "source": "regex", "metadata": {}}, {"text": "Each State Sales Tax Act", "label": "STATUTE", "start_char": 46316, "end_char": 46340, "source": "regex", "metadata": {}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 46780, "end_char": 46792, "source": "regex", "metadata": {"linked_statute_text": "Each State Sales Tax Act", "statute": "Each State Sales Tax Act"}}, {"text": "Khemka & Co.", "label": "ORG", "start_char": 47009, "end_char": 47021, "source": "ner", "metadata": {"in_sentence": "For these re•asons the appeal of M/s Khemka & Co. is accepted."}}, {"text": "Bombay Sales Tax Act, 1953", "label": "STATUTE", "start_char": 47242, "end_char": 47268, "source": "regex", "metadata": {}}, {"text": "State of Mysore", "label": "ORG", "start_char": 47288, "end_char": 47303, "source": "ner", "metadata": {"in_sentence": "The appeal of the State of Mysore in Civil Appeal No."}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 47577, "end_char": 47583, "source": "ner", "metadata": {"in_sentence": "MATHEW, J. We take up for consideration Civil Appeal No.", "canonical_name": "MATHEW"}}, {"text": "s.9", "label": "PROVISION", "start_char": 47842, "end_char": 47845, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Sales Tax Act, 1953", "statute": "the Bombay Sales Tax Act, 1953"}}, {"text": "s.16", "label": "PROVISION", "start_char": 48009, "end_char": 48013, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Sales Tax Act, 1953", "statute": "the Bombay Sales Tax Act, 1953"}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 48179, "end_char": 48199, "source": "ner", "metadata": {"in_sentence": "The High Court of Bombay held that the :Sales Tax\n\nOfTic, r had power to impose the penalty under that section and the questio,1 in this appeal is whether the High Court was right."}}, {"text": "Sales Tax\n\nOfTic,", "label": "COURT", "start_char": 48215, "end_char": 48232, "source": "ner", "metadata": {"in_sentence": "The High Court of Bombay held that the :Sales Tax\n\nOfTic, r had power to impose the penalty under that section and the questio,1 in this appeal is whether the High Court was right."}}, {"text": "Section 9", "label": "PROVISION", "start_char": 48357, "end_char": 48366, "source": "regex", "metadata": {"statute": null}}, {"text": "S1", "label": "PROVISION", "start_char": 48618, "end_char": 48620, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 50193, "end_char": 50203, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 51168, "end_char": 51175, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 51787, "end_char": 51791, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 53081, "end_char": 53086, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 53403, "end_char": 53408, "source": "regex", "metadata": {"statute": null}}, {"text": "s.16", "label": "PROVISION", "start_char": 53639, "end_char": 53643, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 54476, "end_char": 54486, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 54494, "end_char": 54521, "source": "regex", "metadata": {}}, {"text": "s. 44", "label": "PROVISION", "start_char": 55134, "end_char": 55139, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "s. 28", "label": "PROVISION", "start_char": 55261, "end_char": 55266, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "s.44", "label": "PROVISION", "start_char": 55288, "end_char": 55292, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 55470, "end_char": 55479, "source": "ner", "metadata": {"in_sentence": "The Court quoted with approval the following observations of Subba Rao, C. J. in Mareddi Krish11a Reddy v. Income-tax Officer, Tenali(2) : \" .... The defaults enumerated therein (in s. 28) relate H to the process of assessment."}}, {"text": "s. 28", "label": "PROVISION", "start_char": 55591, "end_char": 55596, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 55638, "end_char": 55648, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 56332, "end_char": 56337, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 56345, "end_char": 56365, "source": "regex", "metadata": {}}, {"text": "s. 16", "label": "PROVISION", "start_char": 56541, "end_char": 56546, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "December, 22, 1949", "label": "DATE", "start_char": 56980, "end_char": 56998, "source": "ner", "metadata": {"in_sentence": "Jn Commissioner of Income Tax v. Bhikaji Dadabhai & Co.( 1) the Income Tax Officer in question found that the books of account of the respondent were unreliable and after assessing the income for the year 1946-47, issued notice to the respondent on December, 22, 1949, under s. 40 of the Hyderabad Income Tax Act to show cause why penalty should not be levied in addition to the tax and, by an order dated 31-10-1951 directed payment of the penalty."}}, {"text": "s. 40", "label": "PROVISION", "start_char": 57006, "end_char": 57011, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "31-10-1951", "label": "DATE", "start_char": 57137, "end_char": 57147, "source": "ner", "metadata": {"in_sentence": "Jn Commissioner of Income Tax v. Bhikaji Dadabhai & Co.( 1) the Income Tax Officer in question found that the books of account of the respondent were unreliable and after assessing the income for the year 1946-47, issued notice to the respondent on December, 22, 1949, under s. 40 of the Hyderabad Income Tax Act to show cause why penalty should not be levied in addition to the tax and, by an order dated 31-10-1951 directed payment of the penalty."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 57311, "end_char": 57316, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "Finance Act, 1950", "label": "STATUTE", "start_char": 57324, "end_char": 57341, "source": "regex", "metadata": {}}, {"text": "April 1, 1950", "label": "DATE", "start_char": 57399, "end_char": 57412, "source": "ner", "metadata": {"in_sentence": "The State of Hyderabad merged with the Indian Union during the peadency of the proceedings before the Income Tax Officer and b'y s. 13 of the Finance Act, 1950, the Hyderabad Income Tax Act ceased to have effect from April 1, 1950, but the operation of that Act in respect of levy, assessment and collection of income tax and super tax in respect of the period prior thereto for which liability to income tax should not be imposed under the Indian Income Tax Act was saved."}}, {"text": "October 31, 1951", "label": "DATE", "start_char": 57736, "end_char": 57752, "source": "ner", "metadata": {"in_sentence": "One question before this Court was whether the Income Tax Officer had power on October 31, 1951 to impose penalty under s. 40(1) of the Hyderabad Income Tax Act."}}, {"text": "s. 40(1)", "label": "PROVISION", "start_char": 57777, "end_char": 57785, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1950", "statute": "the Finance Act, 1950"}}, {"text": "s. 40(1)", "label": "PROVISION", "start_char": 57900, "end_char": 57908, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1950", "statute": "the Finance Act, 1950"}}, {"text": "Ome Tax Act in respect of the years preceding the date of the repeal of that Act", "label": "STATUTE", "start_char": 57930, "end_char": 58010, "source": "regex", "metadata": {}}, {"text": "s. 13", "label": "PROVISION", "start_char": 58035, "end_char": 58040, "source": "regex", "metadata": {"linked_statute_text": "Ome Tax Act in respect of the years preceding the date of the repeal of that Act", "statute": "Ome Tax Act in respect of the years preceding the date of the repeal of that Act"}}, {"text": "April 1, 1951", "label": "DATE", "start_char": 58212, "end_char": 58225, "source": "ner", "metadata": {"in_sentence": "The Court held that the power of the Income Tax Officer to impose penalty under s. 40(1) of the Hyderabad lnC'Ome Tax Act in respect of the years preceding the date of the repeal of that Act was not lost because by s. 13 of the Finance Act, , 1950, the operation of the Hyderabad Act in respect of levy, assessment and collection of income tax and super tax in respect of the period prior to April 1, 1951 was saved and therefore the proceedings for imposing the penalty could be continued even after the enactment of s. 13(1) of the Indian Finance Act, 1950."}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 58338, "end_char": 58346, "source": "regex", "metadata": {"linked_statute_text": "Ome Tax Act in respect of the years preceding the date of the repeal of that Act", "statute": "Ome Tax Act in respect of the years preceding the date of the repeal of that Act"}}, {"text": "Indian Finance Act, 1950", "label": "STATUTE", "start_char": 58354, "end_char": 58378, "source": "regex", "metadata": {}}, {"text": "s. 13(8)", "label": "PROVISION", "start_char": 59071, "end_char": 59079, "source": "regex", "metadata": {"linked_statute_text": "the Indian Finance Act, 1950", "statute": "the Indian Finance Act, 1950"}}, {"text": "Orissa Saks Tax Act, 1947", "label": "STATUTE", "start_char": 59087, "end_char": 59112, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 59301, "end_char": 59305, "source": "regex", "metadata": {"linked_statute_text": "the Orissa Saks Tax Act, 1947", "statute": "the Orissa Saks Tax Act, 1947"}}, {"text": "Qf enforcing the payment of tax payable under the Central Act", "label": "STATUTE", "start_char": 60570, "end_char": 60631, "source": "regex", "metadata": {}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 60870, "end_char": 60877, "source": "regex", "metadata": {"linked_statute_text": "Qf enforcing the payment of tax payable under the Central Act", "statute": "Qf enforcing the payment of tax payable under the Central Act"}}, {"text": "Mathew", "label": "JUDGE", "start_char": 61631, "end_char": 61637, "source": "ner", "metadata": {"in_sentence": "F ' G\n\nKHEMKA & co. v. MAHARASHTRA (Mathew, J.) 771\n\nof penalty for enforcing payment of the tax payable thereunder, as that is an effec'tive means to the enforcement of payment of tax within the prescribed time.", "canonical_name": "MATHEW"}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 62257, "end_char": 62276, "source": "ner", "metadata": {"in_sentence": "In this connection, the appellant placed great reliance upon the decision of a Division Bench of the Calcutta High Court in Mohan Lal Chokhany v. The Conunercial Tax Officer(!)."}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 62642, "end_char": 62649, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 64017, "end_char": 64024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 64887, "end_char": 64894, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 65170, "end_char": 65175, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 65353, "end_char": 65357, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 65765, "end_char": 65769, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 65941, "end_char": 65945, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9A", "label": "PROVISION", "start_char": 66149, "end_char": 66154, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 66598, "end_char": 66603, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 66942, "end_char": 66946, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 67222, "end_char": 67226, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 67248, "end_char": 67255, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 67394, "end_char": 67404, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 67438, "end_char": 67445, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 67890, "end_char": 67894, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 68586, "end_char": 68593, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 69237, "end_char": 69244, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 69739, "end_char": 69746, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 69958, "end_char": 69963, "source": "regex", "metadata": {"statute": null}}, {"text": "OA of the Central Act", "label": "STATUTE", "start_char": 69978, "end_char": 69999, "source": "regex", "metadata": {}}, {"text": "How could these penalties have been separately prnvided for in the Central Act", "label": "STATUTE", "start_char": 70768, "end_char": 70846, "source": "regex", "metadata": {}}, {"text": "B. H. Shah & Co.", "label": "OTHER_PERSON", "start_char": 73393, "end_char": 73409, "source": "ner", "metadata": {"in_sentence": "The reasoning of the Madras High Court in B. H. Shah & Co.'s case to the effect that Parliament could, not ave adopted by s. 9(3) of the Central Act (substariti{tlly\n\ncorrespondmg to present s. 9(2) of the Central Act) a provision o.f the general sales tax law of the State which was not in existence at the time of the enactment of s. 9(3) has no relevance here.", "canonical_name": "D. H. Shah & Co."}}, {"text": "s. 9(3)", "label": "PROVISION", "start_char": 73473, "end_char": 73480, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 73542, "end_char": 73549, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(3)", "label": "PROVISION", "start_char": 73684, "end_char": 73691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 73959, "end_char": 73966, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 74214, "end_char": 74221, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 76194, "end_char": 76199, "source": "regex", "metadata": {"statute": null}}, {"text": "1-4-1959", "label": "DATE", "start_char": 76560, "end_char": 76568, "source": "ner", "metadata": {"in_sentence": "2089 of 1969 arises out of an assessment ordi;-r relating to the period of assessment from 1-4-1959 to 30-12-1959."}}, {"text": "30-12-1959", "label": "DATE", "start_char": 76572, "end_char": 76582, "source": "ner", "metadata": {"in_sentence": "2089 of 1969 arises out of an assessment ordi;-r relating to the period of assessment from 1-4-1959 to 30-12-1959."}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 76632, "end_char": 76653, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 16(4)", "label": "PROVISION", "start_char": 77044, "end_char": 77057, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Tribunal. Bombay", "label": "COURT", "start_char": 77223, "end_char": 77249, "source": "ner", "metadata": {"in_sentence": "As the appeal was rejected, a revision application was filed before the Sales Tax Tribunal."}}, {"text": "Section 16(4)", "label": "PROVISION", "start_char": 77295, "end_char": 77308, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act, 1956", "label": "STATUTE", "start_char": 78503, "end_char": 78522, "source": "regex", "metadata": {}}, {"text": "Section 16(4)", "label": "PROVISION", "start_char": 78606, "end_char": 78619, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1956", "statute": "Sales Tax Act, 1956"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 78839, "end_char": 78851, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1956", "statute": "Sales Tax Act, 1956"}}, {"text": "Central Act, 1956", "label": "STATUTE", "start_char": 78859, "end_char": 78876, "source": "regex", "metadata": {}}, {"text": "Section 13", "label": "PROVISION", "start_char": 79134, "end_char": 79144, "source": "regex", "metadata": {"linked_statute_text": "the Central Act, 1956", "statute": "the Central Act, 1956"}}, {"text": "Section 9(3)", "label": "PROVISION", "start_char": 79276, "end_char": 79288, "source": "regex", "metadata": {"linked_statute_text": "the Central Act, 1956", "statute": "the Central Act, 1956"}}, {"text": "KHEMKA", "label": "JUDGE", "start_char": 80066, "end_char": 80072, "source": "ner", "metadata": {"in_sentence": "(2) If default is made in making payment in accordance with subsection (1) :\n\n(i) the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the propertie~ uf the person or persons liable to pay the tax under this Act; and\n\n(ii) the person or persons liable to pay the tax under this Act shall pay a penalty equal to-\n\n(a) one per cent of the amount of tax remaining unpaid for each month for the first three months, after the expiry of the time prescribed under sub-section ( 1) and\n\nKHEMKA & CO, V, MAHARASHTRA (Beg, J.) 777\n\n(b) two and one-half per cent o, f such amount for each month subsequent to the first three months as aforesaid.", "canonical_name": "KHEMKA &CO"}}, {"text": "Commercial Tax Officer, Raichur", "label": "PETITIONER", "start_char": 80539, "end_char": 80570, "source": "ner", "metadata": {"in_sentence": "(3) Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered-\n\n( a) as if it were an arrear of land revenue, or\n\n(b) on applicati'On to any Magistrate, by rnch Magistrate as if it were a fine imposed by him .... \"\n\nIn this case, the Commercial Tax Officer, Raichur, filed application under Section 13(3)(b), of the Mysore Act before the Munsif Magistrate of Raichur for recovery qf the sum due as penalty as if it was a fine imposed by the Court."}}, {"text": "Section 13(3)(b)", "label": "PROVISION", "start_char": 80596, "end_char": 80612, "source": "regex", "metadata": {"statute": null}}, {"text": "Munsif Magistrate of Raichur", "label": "COURT", "start_char": 80643, "end_char": 80671, "source": "ner", "metadata": {"in_sentence": "(3) Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered-\n\n( a) as if it were an arrear of land revenue, or\n\n(b) on applicati'On to any Magistrate, by rnch Magistrate as if it were a fine imposed by him .... \"\n\nIn this case, the Commercial Tax Officer, Raichur, filed application under Section 13(3)(b), of the Mysore Act before the Munsif Magistrate of Raichur for recovery qf the sum due as penalty as if it was a fine imposed by the Court."}}, {"text": "Section 13(4)", "label": "PROVISION", "start_char": 80880, "end_char": 80893, "source": "regex", "metadata": {"statute": null}}, {"text": "Mathew", "label": "JUDGE", "start_char": 81525, "end_char": 81531, "source": "ner", "metadata": {"in_sentence": "I have had the advantage of going through the judgments of the learned Chief Justice and my learned brother Mathew.", "canonical_name": "MATHEW"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 81603, "end_char": 81615, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 81704, "end_char": 81716, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 76(a)", "label": "PROVISION", "start_char": 82188, "end_char": 82201, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 82327, "end_char": 82337, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 82463, "end_char": 82473, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 38", "label": "PROVISION", "start_char": 82477, "end_char": 82487, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(4)", "label": "PROVISION", "start_char": 82681, "end_char": 82694, "source": "regex", "metadata": {"statute": null}}, {"text": "Relying upon the principles indicated by this Court in Re Delhi Laws Act", "label": "STATUTE", "start_char": 82825, "end_char": 82897, "source": "regex", "metadata": {}}, {"text": "At the time of the passing of the Central Act", "label": "STATUTE", "start_char": 83232, "end_char": 83277, "source": "regex", "metadata": {}}, {"text": "Bombay was the Bombay Act", "label": "STATUTE", "start_char": 83316, "end_char": 83341, "source": "regex", "metadata": {}}, {"text": "Section 16(4)", "label": "PROVISION", "start_char": 83357, "end_char": 83370, "source": "regex", "metadata": {"linked_statute_text": "Bombay was the Bombay Act", "statute": "Bombay was the Bombay Act"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 83537, "end_char": 83549, "source": "regex", "metadata": {"linked_statute_text": "Bombay was the Bombay Act", "statute": "Bombay was the Bombay Act"}}, {"text": "Section 13", "label": "PROVISION", "start_char": 83871, "end_char": 83881, "source": "regex", "metadata": {"linked_statute_text": "Bombay was the Bombay Act", "statute": "Bombay was the Bombay Act"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 84015, "end_char": 84027, "source": "regex", "metadata": {"linked_statute_text": "Bombay was the Bombay Act", "statute": "Bombay was the Bombay Act"}}, {"text": "Central Act 1956", "label": "STATUTE", "start_char": 84035, "end_char": 84051, "source": "regex", "metadata": {}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 84733, "end_char": 84745, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 84990, "end_char": 85006, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "article 246(1)", "label": "PROVISION", "start_char": 85028, "end_char": 85042, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 85290, "end_char": 85302, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 63", "label": "PROVISION", "start_char": 86087, "end_char": 86097, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 265", "label": "PROVISION", "start_char": 87774, "end_char": 87785, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 87918, "end_char": 87930, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 88125, "end_char": 88137, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 88335, "end_char": 88344, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 90105, "end_char": 90114, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 90180, "end_char": 90192, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 90312, "end_char": 90322, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 90489, "end_char": 90499, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 90637, "end_char": 90646, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 90754, "end_char": 90764, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 92426, "end_char": 92431, "source": "ner", "metadata": {"in_sentence": "( 4) The proceeds in any financial year of any tax including any penalty, levied and C'Ollected uncl.er this Act in any State (other than a Union territory) on behalf of the\n\nGoverment of India shall be assigned to that State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of lndja\"."}}, {"text": "Central Act 1956", "label": "STATUTE", "start_char": 92639, "end_char": 92655, "source": "regex", "metadata": {}}, {"text": "Sec. 9(2)", "label": "PROVISION", "start_char": 92726, "end_char": 92735, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Sec. 9(2)", "label": "PROVISION", "start_char": 92752, "end_char": 92761, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Sec. 9(3)", "label": "PROVISION", "start_char": 92923, "end_char": 92932, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Section 10", "label": "PROVISION", "start_char": 92952, "end_char": 92962, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Section 9(3)", "label": "PROVISION", "start_char": 93287, "end_char": 93299, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 93349, "end_char": 93361, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Section 9(3)", "label": "PROVISION", "start_char": 93414, "end_char": 93426, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 93462, "end_char": 93474, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Sec. 9(2)", "label": "PROVISION", "start_char": 93574, "end_char": 93583, "source": "regex", "metadata": {"linked_statute_text": "the Central Act 1956", "statute": "the Central Act 1956"}}, {"text": "Section 19(3)", "label": "PROVISION", "start_char": 93782, "end_char": 93795, "source": "regex", "metadata": {"statute": null}}, {"text": "OA of the Central Act and not by any provision of the State Act", "label": "STATUTE", "start_char": 93903, "end_char": 93966, "source": "regex", "metadata": {}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 94000, "end_char": 94012, "source": "regex", "metadata": {"linked_statute_text": "OA of the Central Act and not by any provision of the State Act", "statute": "OA of the Central Act and not by any provision of the State Act"}}, {"text": "Section 9(3)", "label": "PROVISION", "start_char": 94051, "end_char": 94063, "source": "regex", "metadata": {"linked_statute_text": "OA of the Central Act and not by any provision of the State Act", "statute": "OA of the Central Act and not by any provision of the State Act"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 94524, "end_char": 94536, "source": "regex", "metadata": {"linked_statute_text": "OA of the Central Act and not by any provision of the State Act", "statute": "OA of the Central Act and not by any provision of the State Act"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 94799, "end_char": 94811, "source": "regex", "metadata": {"linked_statute_text": "OA of the Central Act and not by any provision of the State Act", "statute": "OA of the Central Act and not by any provision of the State Act"}}, {"text": "After considering the provisions of the Central Act as well as the State Act", "label": "STATUTE", "start_char": 95319, "end_char": 95395, "source": "regex", "metadata": {}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 95917, "end_char": 95929, "source": "regex", "metadata": {"linked_statute_text": "After considering the provisions of the Central Act as well as the State Act", "statute": "After considering the provisions of the Central Act as well as the State Act"}}, {"text": "Section 9(2)", "label": "PROVISION", "start_char": 97301, "end_char": 97313, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_783_790_EN", "year": 1975, "text": "KALYA SINGH\n\nI'.\n\nGENDA LAL AND OTHERS\n\nFehmary 28, 1975\n\n78 3\n\n[A. ALAGIRJSWAMJ AND N. L. UNTWALIA, JJ.]\n\nRepresc111a1io11 of the People Ac!, I 95 I, S. I 23(1) (A) (b )-Pa\\\"/11e111 of money lo a person lo rerire from co'i11es1-WhC1/1er a111011n1., lo cor1:11p1 prar:- flce.\n\nSection 123(1)(A)(b) of the Representation of the People Act. 1951define> .bribery as 'any .gift. offer or promise by a c-andidate or his ;1gent or by any other person with the consent of \"' candidate or his election agent ?f any gr;1ti1!cation, to any person. whomsoever. with the Jbject. directly~ or md1rectly of mducmg an elector to vote .or refrain from voting at an election.\n\nRespondent No. 1 hied an election petition challenging the election of the appellant that he had committed corrupt practice under s. 123 (I) (A) ( b) of the Act.\n\nThe High Court declared the election void on the ground that the appellant. by pying a big sum in cash and promising paymnt of a similar sum by execution of a promissory note, made Respondent No. 3 to retire from\n\nthe contest and publish a pamphlet that the electors should vote for the appellant and not for himself.\n\nAllowing the appeal to this Court.\n\nHELD: I (a) It is not possible to ''\"lain the judgment of the High Court holding the appellant guiltv of corrupt pract'ces within the meaning of s. I 23 (I) (A) (b) of the Act.\n\n[790B]\n\n(b) Mere payment of any gratification to a third person for securing or procuring some votes in favour of a particular candidate. without the es\\ablishment of any nexus b-ctween the money and the inducement to the Yoter, will not be sufficient to prove !hat the voter is indirectlv inducd on account oi the payment of gratification to the third person.\n\nThe gratification must have some connection or reflection, diiect or indirect. in persuading the. voter to vote or refrain from voting at an election. If th.e inducement to the voter is not caused by the payment of the gratification to a third person but by the persuasion or influence or such third person it will not be possible to say that ·, he gratification had any indirect inducement to the vster. :n7F-l 1 J\n\n(c) Payment of any gratification to any person to work or canvass at an elc.:tion is vutside the ambit of the definition.\n\n[787H]\n\n(d) If the inducement to the voter is fre from the shade or colour of the gratification paid to the third person it will not be bribery. lf. howner, tbe inducement in a given case is coloured or shaded by the payment of the gratification to a third person it would be an indirect inducement to the voter himself within the frame of the definition.\n\nIn othl'>r words it is the fact of , payment to the third person that must induce the voter.\n\nIt is not enough that the third person induces the voter.\n\nThe frame of any d7nition more often than not is capable of being made flexible.\n\nBut the prec1SIO!J and certainty in Jaw requires that it should not be made loose and kept fight as far as possible.\n\n[788A-B]\n\nG/w, fii Ram v. Dal Singh and others [1968] 3 S.C.R. 102 and Om Pmbha ]<1in , .. Abnash Chand & anr. [1968] 3 S.C.R. 111, folfowed.\n\nAbdul H11.1.·:ain Mir v. Sha111s11/ Huda & Anr. [1975] 3 &.C.R. 106 referred to.\n\nJn the instant case money was not paid to the respondent as consideration for votes promised or as a bargain for getting votes but it was money paid tv him to retire from the contest and to do propaganda and persuade the voters to vote fer the appellant. In spite of the propaganda and the appeal of the respondent no. 3 'ihc voters were left free not to respond to his persuatio:J.\n\nJ790A]\n\nCIVIL APPELLAH JuR1so1cnoN : Civil Appeal No .. 16(NCE) of 1973.\n\nFrom the Judgment a.1d order dated the 11th December, 1972 of the Madhya Pradesh High Court in Election Petition No. 22 of 1972.\n\nG. L Sangh! and D. N. Misra, for the appellant.\n\nS. S. Khanduja, for Respondent No. 1.\n\nS. f(. Gambhir, for Respondent No. 2.\n\nThe Judgment of the Col!rt was delivered by\n\nUNTWALIA, J. There were three candidates to contest the election to the Legislative Assembly of Madhya Pradesh from the Bhainsdeshr Assembly (Reserved) Constitumcy in the last general elections.\n\nThe appellant in this appeal under section ll 6A of the Representation of the People Act; 1951-hcrcinafter referred to as the Act, was declared elected to the seat defeating the other two ca'°didates who are respondents 2 and 3. Respondent No. 1 filed an Election Petition in the Madhya Pradesh High Court challenging the election of the appellant on serveral grounds.\n\nThe election of the appellant has been declared void by a learned single Judge of the High Court m one ground only.\n\nIt has been held that he . indulged in corrupt practice within the meariing of Section 123 ( 1 J (A) (b) of the Act. We shall confine the statement of facts in this case to the only ground on which the appell-· ant's election has beea set aside.\n\nRespondent No. 1 stated in paragraph 6 of his election petition\n\n\"(iv) That after the date of withdrawal the respondent no.l himself and through his aforesaid agents and workers with his consent was vehemently trying to induce the respondent no.3 to support the candidature of the respondent no. 1, and declare that the electors, should not vote for the respondent no.3, but should vote for the respondent 1110.1.\n\n(v) That the respondent no.I, and his aforesaid agents and workers having failed in their attempt in inducing the respondent no.3 from either standing withdrawing or declaring to support the candidature of the respondent no.1, and the respondent no. 3, having started his election campaign in full swing. The respondent no.1 apprehended that if respondent no.3, remains in contest then, he had no chance of success.\n\nTherefore he made determined efforts, to see that the respondent no.3 makes an appeal to the electors of the constituency to the effect that the electors should\n\nX:At.YA SINGH v. GBNDA LAL (Untwalia, /.) 785\n\nvote for the respondent no.1 and should refntln from voting in favour of the respondent No. 3, and withdraws frpm the contest ......... .\n\n(vii) That on 22.2.1972 at Paratwara respondent no.1 himself in the company of his agents and workers Shri N. K. P. Salve, Shive Bux Singh and Baboolal Pathak induced the respondent no.3 to support the candidature of the respondent no.1 and offered to pay compensation to respondent no.3 The. respondent no.3 agreed to support the candidature of the respondent no.l, and to publish a pamphlet to the effect that the electors should vote for the respondent no.1 and should refrain from voting the respondent no.3. The respondent no.1 offered a sum of Rs. 8000/- to the respondent no.3 as compensation, which he had incurred in his election campaign.\n\nOn appreciation of evidence adduced before the High Court, on the relevant issues it recorded the following findings :\n\n\"ISSUE N0.1 (a) The respondent no.1 (Kalya Singh) asked respondent no.3 (Patiram) on the night intervening 22nd and 23rd February 1972 at Paratw'dra to withdraw from the contest and to support respondent no.1. Respondet no.1 also offered to pay Rs. S,0001as compensation to respondent no. 3 for the election expeQSes till then incurred by him.\n\nISSUE N0.1 {b) The respondent no.3 agreed to support respondent no. I and to issue a pamphlet requesting the voters to vote for respondent no.1.\n\nISSUE NO. 1 (c) A sum of Rs. 4,000/- was paid in c'8Sh on 23rd February, 1972 by respondent no.1 to respondent no.3.\n\nA pronote for Rs. 4,000/- (Ex. P-3) executed by respondent No. 1 in favour of Shiv Darshan Singh was also handed over by respondent no. 1 to respondent no. 3. It was also agreed that in case the balance amount of Rs. 4,000/- was not paid by respondent no. 1, respondent no. 3 will hand over the pronote to Shiv Darshan Singh who will recover the amount from Respondent no. 1 and pay to respondent no. 3.\n\nISSUE NO.l(d)\n\nIn the meeting held at Bhainsdeshi on 23rd February, 1972 it was announced by respondent no. 3 that he now supports the Congress.\n\nThe said meeting was also addressed by respondent no.I, Shivbux Singh and Kawadkar.\n\nThey H also announced the withdrawal from the contest of respondent no.3, and asked the electors to vote for respondent no.1\n\nISSUE N0.1 (e) ' 4-LS64SCl/7S\n\nThe pamphlet (Ex. P-11) was distributed in the meeting of 23rd February, 1972.''\n\nMr. G. L. Sanghi, learned counsel for the appellant in the firsi: instance submitted that on the face of the peladings in the Election\n\nPetition as also on the findings of fact recorded by the High Court it has gone wrong in law in holding that the appellant was guilty of having indulged in corrupt practice within the meaning of section 123( l) (a)\n\n(b) of the Act.\n\nHe reserved his right to assail the findings by taking us through the evidence in case his contention in law were not found to be sound.\n\nMr. S. S. Khanduja combated the argument put forward on behalf of the appellant <rad reEcd upon a decision of this Court in Abdul Hussain Mir v. Shamsul Huda & Anr.( 1) decided on 20th\n\nDecember 1974 to which one of us (A. Alagiriswami, J) was party.\n\nMr. S. K. Ghambir appearing for respondent no.3 asked us, in the event of the appellant's success in the appeal to exonerate the said respondent of the charge of having indulged in a corrupt practice within the meaning of section J 23 (1 )(B )(b) of the Act as found by the High Court.\n\nSince the point of law urged on behalf of the appellant was found to be sound, we did not proceed to examine the evidence in the case.\n\nWe may state in condensed form the findings recorded by the High Court against the appellant in the b-ackground of what was pleaded in the Election Petition. The appellant by paying a sum of Rs. 4,000/- in cash and promising payment of another sum of Rs. 4,000/- by execution of a promissory note made respondent no. 3 to retire from the contest, support the candidature of the appellant 11nd publish a pamphlet to the effect that the electors should vote for him and not for respondent no.3 Accordingly a pamphlet to that effect was published and distributed in a meeting held on 23rd February, 1972 at Bhainsdeshi in which meeting the withdrawal from contest of respondent no. 3 was announced and the voters were asked to vote for respondent no. 1.\n\nThe: question for consideration is whether the findings aforesaid fit in the frame of definition of \"Bribery\" in section 123 ( 1) (A) (b) of the Act. The High Court has rightlv pointed out that the case was not covered by sub-clause (a) of Clause (A) as respondent no. 3 was not made to withdraw from being a candidate at the election.\n\nThis view of the High Court is now squarely supported by the decision of this 0)urt in Shri Urned v. Raj Singh and others( 2) which had over-turned a contrary view taken in the case of Mohd. Yunus\n\nSalum v. Shit'kumar Shastri and others(8). We now proceed to read in full section 123 ( 1) (A) of the Act.\n\n( 1) 'Bribery', that is to say-\n\n( A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of 11 candidate or his elec.tion agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-\n\n\n(2) A.T.R. 1975 S.C. 43.\n\n(3) A.T.R. 1975 S.C. 1218.\n\nKALYA SINGH \\I, GENOA LAL ( Untwalia, J.)\n\n(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or\n\n(b) an elector to vote or refrain from voting at an election or us a reward to-\n\n( i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his\n\nrnaddaturc; or\n\n<ii) an elector for having voted or refraind from voting:\"\n\nWe shall discuss the relevant law shorn o!' the addenda and the qualitying words in the above extract.\n\nPayment of any gratification by a candidate lo any person net necessariiy a person mcnti0;1cd in sub-clause (a) or an ckctor mentioned in sub-clause (b) with the object of directly or indirectly ir.ducing the person 0r an elector mentioned in those sub-clauses will make it a bcibry within the meaning of the said word. ltis significant to note from sub-.;:lauscs (i) ; rncl (ii) of clause (A) that post-facto payment of any gratification as a reward will be bribery only if it is paid to the person or the elector mentioned in the&e sub-clauses. But does it lead to the conclusion that payment of any gratification to any person other than an elector in al! circumstances would be deemed to be with the object of indirctly inducing an elector to vote or refrain from voting at an election ? If money is paid to an elector to vote for a particular candidate undoubtedly it is a direct inducement to him to vote at an election. If money is paid to a third person in which payment of money an elector c has got any direct or indirect interest and which induces 'him to vote at an election in favour of a particular candidate then also the inducement is brought about as a result of the payment of the gratification.\n\nBut the point of difficulty may W\"ise where any gratification is paid by or on behalf of a candidate to a third person for procuring. some votes of some electors who may be under his (third person's) influence.\n\nWhether in such a case the payment has got any indirect inducement to an elector to vote at an election ? We are incline<l to think that mere payment of any gratification to a third person for securing or procuring some votes i'n favour of a particular candiaate without the establishment of any nexus between the money and the inducement to the voter will not be sufficient to prove that the voter is indirectly induced on account of the payment of gratificati0'.1 to the third person.\n\nThe dictionary meaning of the word \"induce\" is to \"prevail on, persuade.\" The gratification must have some connection or reflection, direct or indirect, in persuading the voter to vote or refrain from voting at an elei:tio•a. If the inducement to the voter is nGt caused by the\n\npavment of the gratification to a third person but by the persuasion or influence (not undue influence) of such third person it will not be possible to say that the gratification had any indirect inducement to the voter.\n\nPayment of a•ay gratification to any person to work or canvass at an election is outside the ambit of the dfinitbn. It will make little differcn<'c if the worker or the canvassor on payment of gratification promises or indulges in tall-talk of securing or procuring some\n\nvotes for a particular candidate. If the inducement to the voter 1s free from the shade or colour of the gratification paid to the third person, then it will not be bribery. If, however, the inducement in a given case is coloured or shaded by the payment of the gratificatkm. t<J\n\na third person then it would be an indirect mducement to the voter himself within the frame of the definition. In o4hi!r words it i>: the fact of payment to the third person that must indu:e the voter. It is not cncugh that the third person induces the voter. The frame of arty definition, more often than not, is capable of being made flexible. But the precision and certainty in law requires that it should not be made lno'.; c. and kept tight a~ far as possible.\n\nOn the facts found in this case respondent no. 3 after having retired from the contest merti} canvassed to the voter:> some of wlwm may be his so callt:d voters, to \\0t.e for the appeltJnJ Di):!riburi.nn of the pamphlet and announcement in the meeting held on the 23rd February, 1972 to that and did not transgress the limit and made the act an indirect inducement to the voters to cast vote for the appellant on account of payme:nt of tlie gratification by him to the third respondent.\n\nIn Ghasi Reim v. Dal Stngh 1.uul others(!) followed in Om Pmbha .Tain v. Abnash Chand & Anr.(2)-another decision in the same volume at page 111, it was pointed out by Hidayatullah J., as he then was, at page 110 \"The money was not distributed among the voters directly but was given to Panchayats and the public at large. It was to be used for the good of those for and those against the candidate.\n\nNo doubt they had the effect of pushing forward his claims but that was inevitable 'even if no money was spent, but good administration changed the people's condition. We cannot, therefore, hold that there was any corrupt practice. If there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different but there was no such evidence.'' It would thus be noticed that there must be a bargain for votes eithr directly with the voters or indirectly through some-one else. The voter may not be a direct party in the bargain but must be shown to have an indirect interest, in it.\n\nIn Abdul Hussain Mir v. Shamsul Huda &: Anr.( 3 ) Krishna Iyer J. in his judgment delivered on his and on behalf of Sarkatia J. did not find the fact proved in that case to bring it within the ambit of section 123(1)(A)(b). The third learned Judge (A. Alagirisami J.) did not record any finding to the contrary. Even so while interpreting the scope and ambit of section 123 (1) of the Act certain observations were made in the majority judgment which were prese<l into service by respondent No. 1 while the others were relied on by the appellant.\n\nAccepting the argument of Mr. Garg (vide page 1995 of the cyclostyled copy issued by the Supreme Court Bar Association) it was said \"what the: law aims at is a blow on the purchase of the franchise by direct or indirect methods. You may buy influence of important persons which is bad in morality but not yet in law.\" Another passage (vide page 1996 of the cyclostyled copy) which\n\n(I) [1968] (3) S.C.R. 102.\n\n(2) [1968}(3) S.C.R. 111.\n\n(3) [ 1975] :> S.C.R. 106.\n\nJi'\n\nKALYA SINGH v. GENDA LAL (Untwalia, J.) 78 9\n\nA occurs in that judgment runs thus : \"The crucial point is the . nexus between the gratification and the voters, one being the consideration for the other, direct or indirect.\" The two passages extracted above squarely supported the contention of the appellant. While a few others which are being quoted below were pressed into service by\n\n8 .. learned counsel for respondent No. 1.\n\nThe said passages at page 1995 are:\n\n\"If the candidate pays mtmey to a V.l.P. of the locality to use his good offices and canvass votes for him, it is a borderline case, but if the money is paid as consideration for votes promised to be secured by him using bis sway, it is bribery even though indirectly exercied.\n\nIf the Mulla had been paid the money striking a bargain for getting the votes-in bis ambit of influence, it is electoral corruption.\n\nOn the other hand, if it is money received_ for the purpose of organising effec~ tively the election campaign by hiring workers, going round the places In car, meeting people and persuading them to vote for the candidate, it is proper election expense.\n\nIn between these two extremes Ji~ the case of a man who just receives a large sum of money, pockets it himself and promises to use his good offices to secure votes. This is a gray area.\n\nWe are not called upon to pronounce on it in this case .................. The touchstone in all these C'aSes of payment of gratification is to find out whether the money is paid in reasonable measure for work to be done or services to be rendered. Secondly, whether the services as offered amount to a bargain for getting votes or merely to do propaganda or to persuade voters to vote for the candidate, it being left to the voters not to respond to the suasion. It is a plain case if a voter is paid for his vote. It i.~ direct. It is equally plain if the payment is made to a close relation as inducement for the vote.\n\nThe same is the case if it is paid to local chief on the under· standing that he will get plead the votes in his pocket borough, in consideration for the payment.\" The third learned Judge in his separate note did not join in the views expressed in the passages just extracted above from the majority decision and , aid \"I consider it, therefore, unnecessary to discuss whether if money is paid or offered as considera- . tion for votes promised to be secured by a person using his intluenc~\n\nit is bribery or not. It .is a good policy not to discuss in a Judgment questions which do nut arise out of the facts of the case.\" The obser\n\nvations of Krishna Iyer J.. which were relied on behalf of respondent No. 1 may occasid.tl a debate or dispute if in a given ce the facts so warrant. But it will be a futile exercise to do so in this case as the findings recorded against the appellant by the High Court iare clearly outside the observations relied on by respondent No. 1. It was not a case where money was paid to respondent No. 3 as consideration for\n\nSUPREME COURT REPORTS 119751 3 s.C.Fl.\n\nvotes promised or as a bargain for getting votes. It was . a mot1ey paid to him to retire from the contest and to do propaganda and p 1ersuade the voters to vote for the appellant. In spite of the propagaaida and the appeal <>f respondent No. 3 the voters. were left free not to respond to bis persuasion. In no view of the matter, therefore, it is possible to sustain the judgment of the High Court holding the appellant guilty of corrupt practice within the meaning of section 123\n\n(1) (A) (b) of the Act. That being so, it is plain that respondent No. 3 also must be exonerated of the charge levelled and found against him of bribery within the meaning of section 123 ( 1 )(B )(b) .\n\n. In the result the appeal is allowed with costs payable by respondent No. 1 and the judgment and order of the High Court are set C aside.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 50, "entities": [{"text": "KALYA SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "KALYA SINGH", "offset_not_found": false}}, {"text": "GENDA LAL AND OTHERS", "label": "RESPONDENT", "start_char": 18, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "GENDA LAL AND OTHERS", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 85, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Section 123(1)(A)(b)", "label": "PROVISION", "start_char": 277, "end_char": 297, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 305, "end_char": 337, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 123", "label": "PROVISION", "start_char": 790, "end_char": 796, "source": "regex", "metadata": {"statute": null}}, {"text": "[1968] 3 S.C.R. 102", "label": "CASE_CITATION", "start_char": 3015, "end_char": 3034, "source": "regex", "metadata": {}}, {"text": "Om Pmbha", "label": "OTHER_PERSON", "start_char": 3039, "end_char": 3047, "source": "ner", "metadata": {"in_sentence": "[788A-B]\n\nG/w, fii Ram v. Dal Singh and others [1968] 3 S.C.R. 102 and Om Pmbha ]<1in , .. Abnash Chand & anr. ["}}, {"text": "[1968] 3 S.C.R. 111", "label": "CASE_CITATION", "start_char": 3079, "end_char": 3098, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLAH", "label": "PETITIONER", "start_char": 3585, "end_char": 3599, "source": "ner", "metadata": {"in_sentence": "3 'ihc voters were left free not to respond to his persuatio:J.\n\nJ790A]\n\nCIVIL APPELLAH JuR1so1cnoN : Civil Appeal No .. 16(NCE) of 1973."}}, {"text": "G. L Sangh", "label": "LAWYER", "start_char": 3781, "end_char": 3791, "source": "ner", "metadata": {"in_sentence": "G. L Sangh!"}}, {"text": "D. N. Misra", "label": "LAWYER", "start_char": 3797, "end_char": 3808, "source": "ner", "metadata": {"in_sentence": "and D. N. Misra, for the appellant."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 3830, "end_char": 3844, "source": "ner", "metadata": {"in_sentence": "S. S. Khanduja, for Respondent No.", "canonical_name": "S. S. Khanduja"}}, {"text": "S. f(. Gambhir", "label": "LAWYER", "start_char": 3869, "end_char": 3883, "source": "ner", "metadata": {"in_sentence": "S. f(.", "canonical_name": "S. f(. Gambhir"}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 3953, "end_char": 3961, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Col!rt was delivered by\n\nUNTWALIA, J. There were three candidates to contest the election to the Legislative Assembly of Madhya Pradesh from the Bhainsdeshr Assembly (Reserved) Constitumcy in the last general elections."}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 4205, "end_char": 4237, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 4429, "end_char": 4454, "source": "ner", "metadata": {"in_sentence": "1 filed an Election Petition in the Madhya Pradesh High Court challenging the election of the appellant on serveral grounds."}}, {"text": "Section 123", "label": "PROVISION", "start_char": 4715, "end_char": 4726, "source": "regex", "metadata": {"statute": null}}, {"text": "N. K. P. Salve", "label": "LAWYER", "start_char": 6170, "end_char": 6184, "source": "ner", "metadata": {"in_sentence": "(vii) That on 22.2.1972 at Paratwara respondent no.1 himself in the company of his agents and workers Shri N. K. P. Salve, Shive Bux Singh and Baboolal Pathak induced the respondent no.3 to support the candidature of the respondent no.1 and offered to pay compensation to respondent no.3 The."}}, {"text": "Shive Bux Singh", "label": "LAWYER", "start_char": 6186, "end_char": 6201, "source": "ner", "metadata": {"in_sentence": "(vii) That on 22.2.1972 at Paratwara respondent no.1 himself in the company of his agents and workers Shri N. K. P. Salve, Shive Bux Singh and Baboolal Pathak induced the respondent no.3 to support the candidature of the respondent no.1 and offered to pay compensation to respondent no.3 The.", "canonical_name": "Shive Bux Singh"}}, {"text": "Baboolal Pathak", "label": "LAWYER", "start_char": 6206, "end_char": 6221, "source": "ner", "metadata": {"in_sentence": "(vii) That on 22.2.1972 at Paratwara respondent no.1 himself in the company of his agents and workers Shri N. K. P. Salve, Shive Bux Singh and Baboolal Pathak induced the respondent no.3 to support the candidature of the respondent no.1 and offered to pay compensation to respondent no.3 The."}}, {"text": "Kalya Singh", "label": "RESPONDENT", "start_char": 6870, "end_char": 6881, "source": "ner", "metadata": {"in_sentence": "On appreciation of evidence adduced before the High Court, on the relevant issues it recorded the following findings :\n\n\"ISSUE N0.1 (a) The respondent no.1 (Kalya Singh) asked respondent no.3 (Patiram) on the night intervening 22nd and 23rd February 1972 at Paratw'dra to withdraw from the contest and to support respondent no.1.", "canonical_name": "KALYA SINGH"}}, {"text": "Patiram", "label": "RESPONDENT", "start_char": 6906, "end_char": 6913, "source": "ner", "metadata": {"in_sentence": "On appreciation of evidence adduced before the High Court, on the relevant issues it recorded the following findings :\n\n\"ISSUE N0.1 (a) The respondent no.1 (Kalya Singh) asked respondent no.3 (Patiram) on the night intervening 22nd and 23rd February 1972 at Paratw'dra to withdraw from the contest and to support respondent no.1."}}, {"text": "23rd February, 1972", "label": "DATE", "start_char": 7382, "end_char": 7401, "source": "ner", "metadata": {"in_sentence": "4,000/- was paid in c'8Sh on 23rd February, 1972 by respondent no.1 to respondent no.3."}}, {"text": "Shiv Darshan Singh", "label": "RESPONDENT", "start_char": 7520, "end_char": 7538, "source": "ner", "metadata": {"in_sentence": "1 in favour of Shiv Darshan Singh was also handed over by respondent no.", "canonical_name": "Shiv Darshan Singh"}}, {"text": "Shiv Darshan Singh", "label": "RESPONDENT", "start_char": 7748, "end_char": 7766, "source": "ner", "metadata": {"in_sentence": "3 will hand over the pronote to Shiv Darshan Singh who will recover the amount from Respondent no.", "canonical_name": "Shiv Darshan Singh"}}, {"text": "Bhainsdeshi", "label": "GPE", "start_char": 7885, "end_char": 7896, "source": "ner", "metadata": {"in_sentence": "ISSUE NO.l(d)\n\nIn the meeting held at Bhainsdeshi on 23rd February, 1972 it was announced by respondent no."}}, {"text": "Shivbux Singh", "label": "RESPONDENT", "start_char": 8049, "end_char": 8062, "source": "ner", "metadata": {"in_sentence": "I, Shivbux Singh and Kawadkar.", "canonical_name": "Shive Bux Singh"}}, {"text": "Kawadkar", "label": "RESPONDENT", "start_char": 8067, "end_char": 8075, "source": "ner", "metadata": {"in_sentence": "I, Shivbux Singh and Kawadkar."}}, {"text": "L. Sanghi", "label": "OTHER_PERSON", "start_char": 8324, "end_char": 8333, "source": "ner", "metadata": {"in_sentence": "Mr. G. L. Sanghi, learned counsel for the appellant in the firsi: instance submitted that on the face of the peladings in the Election\n\nPetition as also on the findings of fact recorded by the High Court it has gone wrong in law in holding that the appellant was guilty of having indulged in corrupt practice within the meaning of section 123( l) (a)\n\n(b) of the Act."}}, {"text": "section 123( l)", "label": "PROVISION", "start_char": 8648, "end_char": 8663, "source": "regex", "metadata": {"statute": null}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 8828, "end_char": 8842, "source": "ner", "metadata": {"in_sentence": "Mr. S. S. Khanduja combated the argument put forward on behalf of the appellant <rad reEcd upon a decision of this Court in Abdul Hussain Mir v. Shamsul Huda & Anr.(", "canonical_name": "S. S. Khanduja"}}, {"text": "20th\n\nDecember 1974", "label": "DATE", "start_char": 9004, "end_char": 9023, "source": "ner", "metadata": {"in_sentence": "1) decided on 20th\n\nDecember 1974 to which one of us (A. Alagiriswami, J) was party."}}, {"text": "A. Alagiriswami", "label": "JUDGE", "start_char": 9044, "end_char": 9059, "source": "ner", "metadata": {"in_sentence": "1) decided on 20th\n\nDecember 1974 to which one of us (A. Alagiriswami, J) was party.", "canonical_name": "A. ALAGIRISWAMI*"}}, {"text": "S. K. Ghambir", "label": "LAWYER", "start_char": 9080, "end_char": 9093, "source": "ner", "metadata": {"in_sentence": "Mr. S. K. Ghambir appearing for respondent no.3 asked us, in the event of the appellant's success in the appeal to exonerate the said respondent of the charge of having indulged in a corrupt practice within the meaning of section J 23 (1 )(B )(b) of the Act as found by the High Court.", "canonical_name": "S. f(. Gambhir"}}, {"text": "section 123", "label": "PROVISION", "start_char": 10364, "end_char": 10375, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 10860, "end_char": 10871, "source": "regex", "metadata": {"statute": null}}, {"text": "A.T.R. 1975 S.C. 43", "label": "RESPONDENT", "start_char": 11173, "end_char": 11192, "source": "ner", "metadata": {"in_sentence": "( 1) 'Bribery', that is to say-\n\n( A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of 11 candidate or his elec.tion agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-\n\n(2) A.T.R. 1975 S.C. 43."}}, {"text": "KALYA SINGH", "label": "JUDGE", "start_char": 11223, "end_char": 11234, "source": "ner", "metadata": {"in_sentence": "KALYA SINGH \\I, GENOA LAL ( Untwalia, J.)\n\n(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or\n\n(b) an elector to vote or refrain from voting at an election or us a reward to-\n\n( i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his\n\nrnaddaturc; or\n\n<ii) an elector for having voted or refraind from voting:\"\n\nWe shall discuss the relevant law shorn o!'", "canonical_name": "KALYA SINGH"}}, {"text": "GENOA LAL", "label": "JUDGE", "start_char": 11239, "end_char": 11248, "source": "ner", "metadata": {"in_sentence": "KALYA SINGH \\I, GENOA LAL ( Untwalia, J.)\n\n(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or\n\n(b) an elector to vote or refrain from voting at an election or us a reward to-\n\n( i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his\n\nrnaddaturc; or\n\n<ii) an elector for having voted or refraind from voting:\"\n\nWe shall discuss the relevant law shorn o!'"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 15838, "end_char": 15850, "source": "ner", "metadata": {"in_sentence": "followed in Om Pmbha .Tain v. Abnash Chand & Anr.(2)-another decision in the same volume at page 111, it was pointed out by Hidayatullah J., as he then was, at page 110 \"The money was not distributed among the voters directly but was given to Panchayats and the public at large."}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 16752, "end_char": 16764, "source": "ner", "metadata": {"in_sentence": "3 ) Krishna Iyer J. in his judgment delivered on his and on behalf of Sarkatia J. did not find the fact proved in that case to bring it within the ambit of section 123(1)(A)(b)."}}, {"text": "Sarkatia", "label": "JUDGE", "start_char": 16818, "end_char": 16826, "source": "ner", "metadata": {"in_sentence": "3 ) Krishna Iyer J. in his judgment delivered on his and on behalf of Sarkatia J. did not find the fact proved in that case to bring it within the ambit of section 123(1)(A)(b)."}}, {"text": "section 123(1)(A)(b)", "label": "PROVISION", "start_char": 16904, "end_char": 16924, "source": "regex", "metadata": {"statute": null}}, {"text": "A. Alagirisami", "label": "JUDGE", "start_char": 16951, "end_char": 16965, "source": "ner", "metadata": {"in_sentence": "The third learned Judge (A. Alagirisami J.) did not record any finding to the contrary.", "canonical_name": "A. ALAGIRISWAMI*"}}, {"text": "section 123", "label": "PROVISION", "start_char": 17064, "end_char": 17075, "source": "regex", "metadata": {"statute": null}}, {"text": "Garg", "label": "OTHER_PERSON", "start_char": 17280, "end_char": 17284, "source": "ner", "metadata": {"in_sentence": "Accepting the argument of Mr. Garg (vide page 1995 of the cyclostyled copy issued by the Supreme Court Bar Association) it was said \"what the: law aims at is a blow on the purchase of the franchise by direct or indirect methods."}}, {"text": "Supreme Court Bar Association", "label": "COURT", "start_char": 17339, "end_char": 17368, "source": "ner", "metadata": {"in_sentence": "Accepting the argument of Mr. Garg (vide page 1995 of the cyclostyled copy issued by the Supreme Court Bar Association) it was said \"what the: law aims at is a blow on the purchase of the franchise by direct or indirect methods."}}, {"text": "section 123", "label": "PROVISION", "start_char": 21230, "end_char": 21241, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 21418, "end_char": 21429, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_791_796_EN", "year": 1975, "text": "JAGIR SINGH & ANR.\n\nJASDEV SINGH & ORS.\n\nFebruary 28, 1975 ·\n\n79:1\n\nLM. H. BEG, A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]\n\nRepresenta_tion of the People Act (43 of 1951) Section 123(3) and (3A)- Corrupt practice-Proof o{.\n\n'I_be appellants, who were the voters of the constituency, challenged the election f e first respondent who was a nominee of the Akali Dal, to tire State Legislative Assembly, on the ground that he was guilty of corrupt prac• tice under s. 123(3) and (3A) of the Representation of the People Act, 1951.\n\nThe second respondent, who was a nominee of the Congress and the third respondent, who was an independent candidate, were unsuccessful in the election. The charge of corrupt practice against the first respondent was based <_>n the. publication of a poster. The High Court held, (i) that the poster was printed from a document produced by the appellant's witness; (ii) that the signature on that document was that of the first respondent; (iii) the document produced by the court witness as the one from which the poster was printed was manufactured for the purpose of election petition, and that its production as well as the production of a tape-recorded conversation between the ls. respondent and the husband of the 2nd respondent, showed an anxiety on tho part of the first respondent to steer clear of his signature on the document pr<>: duced by the appellant's witness; and (iv) that such anxiety of the first respondent could only arise because he had, in fact, signed the document produced by the appellant's witness, as it was not his case that he ever signed any blank paper. The High Court, however, dismissed the petition holding that it was not sure of the existence of the offending posrer before the poll.\n\nAllowing the appeal to this Court,\n\nHELD : ( 1} The conclusion of the High Court that the poster was not printed before the pol! is completely non-sequitur, in view of the other findings of the High Court which are borne out by the evidence on. record. The evi dence establishes that the printing of the poster was before the poll and that it was the first respondent who got it printed.\n\n[793C-D; 795A]\n\n(a) The absence of a complaint by the second respondent does not lead to the conclusion that the poster was not printed before the appeal. (793-D] .\n\n, (b) The tape-recorded conversation is absolutely imhelpful to the first respondent's case and it does not establish that the first respondent was urp)ised and bewildered at the fact that the document produced by the appellants witness bore hi~ signature. [795D-E]\n\nCi) The evidence also established that the 'poster was distJ:ibuted in vari<_>US villages at the insnce of the first . respondent. The reasop given by th~ High Court for disbelieving the oral telil1mony of one of the witnesses gardmg the distribution name1y, 'that he was an Akali and that his testimony . could not be accepted and he would be the last person to support the congress candidate'\n\nii; the very reason that the evidence of that witness should have been accepted against the first respondent. [796A-D]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 737 of 1973.\n\nFrom the judgment and order (lated February 16, 1973 of the Pun- H jab & Haryana High Court in Election Petition No. 38 of 1972.\n\nG. B. Pai, S. K. Bagga, l. K. Mehta, S. Bagga and Yash Bagga, for the appellant.\n\nSUPREME COURT REPORTS\n\nlrapil Sibal Jasdev Singh and Hardev Sinfh, for respondent no. 1.\n\nBhagwant Singh, B. D. Sharma, M. P. Varma and S. R. Sriva3tQVa, fo1 respondent no. 2.\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAMI, J.\n\nThe appellant.s are two voters of the Dakala B constituency who challenged the election of the 1st respondent to the Punjab Legislative Assembly on many grounds out of which only the charge of corrupt practice under section 123(3) and 123(3A) of the Representation of the People Act now survives for consideration. Retpondents 2 and 3 are the ULsuccessful candidates. The chargeof corrupt practice is based on the publication of a pamphlet, about th• nature of which there is no dispute and the contents of which are thert- C fore unnecessary to be set out. It is admitted that if the publication of the pamphlet either by the successful candidate or his election asent or anyone else at the instance of either of them is proved the election has to be set aside.\n\nThe publication was sought to be proved by the evidence of C.W.1, the proprietor of the printing press where it was printed, C.W. 2 in D whose name it was printed as well as of P.W.l. The evidence of :R.W. 5 was relied upon to prove that the pamphlet was sent to the Sub- Divisional Magistrate as required under section 127A of the Representation of the People Act and received by her on the 12th March.\n\nExt. P.W.1/4 was put forward by the appellants as the manru; cript whY.:h was usr-d for printing the pamphlet.\n\nThis is purported t.o be signed by the successful candidate as well as C.W. 2, Jathedar Ram E Singh, in whose name the pamphlet is published and P.W.1, Bcdi Raghbir Singh.\n\nOn the other hand the printer, C.W. 1 produced another manuscriu~ Ext. C.W.1/1 as the one from which the pamphlet was printed. 111ere is also a tape-recorded conversation between the 1st respondent and Bhagwant Singh, the husband of the 2nd respondent, who was also her counsel in the election petition, from which the\n\n1st respondent tried to make out that he was wholly unaware of and F surprised at his signature in Ext. P.W.1/4. His main argument before this Court was that the whole thing has been brought bout by collusion . between the 2.nd respondent, Bedi Raghbir Singh P.W. 1, Nichhatar Singh C.W. 1 and Jathedar Ram Singh C.W. 2. The learned JudJl; c held:\n\n(1) that he had no doubt that the pamphlet was printed from Ext. P.W. 11/4; G\n\n(2) that Ext. C.W. 1/1 had been manufactured for the purpose of this petition;\n\n(3) that the figures \"20 x 30=5000\" on Ext. P.W. 1/4\n\n4 are in the handwriting of Nicbbatar Singh; H\n\n( 4) that the signature of the successful candidate on Ext. P.W. 1/4 appears to be his;\n\nJAGJR SINGH v. J, ASDEV SINGH (Alagiriswami, !.) 793\n\n(5) that the production of Ext. C.W.1/1 by , Nichhatar Singh and the tape-recorded conversation show an anxiety on the part of l st respondent to steer clear of his signature on Ext. P.W.J/4;\n\n( 6) that this anxiety could be because he had in fact signed such a poster as it was not his case t.hat he ever signed :my blank paper; and\n\n(7) that he was not, however, sure of the existence of the poster.\n\nWe are of opinion that conclusions 1 to 6 of the learned Jildge set out above are borne out by the evidence on record and do not therefore consider it necessary to set out at length the evidence to support those conclusions. Conclusion No. 7 is rather curious in view of his earlier conclusions and his observation that from what he had stated earlier i.e. conclusion 1 to _6, he was clear in his mind that the poster was not printed before the poll is completely non sequitur. The learned Jud11c\n\nthen goes on to say that the strongest reason for this conclusion is the absence of any complaint by respondent No. 2. and that the evidence as to the distribution of the poster is oral and untrustworthy. That is how he has disposed of the whole question regarding the printing of the poster. We are unable to agree that absence of complaint by respondent No. 2 necessarily leads to that conclusion.\n\nWe are of opinion that the conclusion arrived at by the learned Judge is wholly unsustainable especially in view of his categorical findings recorded earlier.\n\nThe 1st respondent's case was one of complete denial of the a!Jea tions in the petition regarding the printing of the poster. He did not plead that the manuscript which was used for printing the poster, Ext.\n\nP.W.1/4, was manufactured on a blank paper bearing his signature.\n\nHe did not even plead .that the pamphlet must or might have been\n\nbrought into e:xistenet by the petitioners or the 2nd respondent after the date of the poll for the purpose of the election petition. There is very satisfactory evidence that the poster should have been printed on the 1st of March, 1972. Ext. C.W.1/1, which, as the learned Judge himself holds, has been brought into existence for the purpose of this petition bears that date.\n\nAfter carefully going through the evidence of C.W.1. Nichhatar Singh we are satisfied that he is a witness who is anxious to help the 1st respondent and has brought Bxt. C.W.1/1 into existence for the purpose of helping him.\n\nAnswers fav0urable to the petitioners had to be extracted out of his unwilling mouth by cross examination. Even he has put the date on Ext. C.W. 1/1 as 1st of March and his evidence is that it was printed on the 1st of March though he mentions only the niqne of C.W.2, Ram Singh. He also says that he had sent a letter, Et. R.W.5/1, to the Sub-Divisional Magistrate.\n\nWhether that letter was sent on the 1st of March, as is spoken to by him, or on the 5th of Mari:h, the date which it bears, doe5 not affect the substance of the question.\n\nThis letter has been received by the Sub-Divisional Magistrate, Miss Deol on 12th March. The learned Judge himself finds that it was received on 12th March. We \"we care-\n\n794 SUP!lEME COURT REPORTS (19751 3 s.c.R.\n\nfully scrutinized it il.lld are satisfied that it has been signed by the Sub-\n\nDivisional Magistrate on the 12th of March. That has been entered in the office diaiy on the 16th of March. Though it is .true that f.he date 6th has been struck out and 16th has been put in, the 6th seems\n\nto have been put in due to a mistake. Looking into the entries in the diary on the previous pages as well as subsequent pages we have no doubt that the l 13th is the correct date. The entries on this date contain a number of documents received from various Government offkes\n\nwhich bear the date 6th March.\n\nWe have no reason at all to doubt\n\nth1~ genuineness of the entries in this diary. If Ext. R.W.5/1 was signed by the Sub-Divisional Magistrate on the 12th and entered in the diary on the 16th they probabilise the receipt of that document at least some days befote .the 12th. At no stage, except during the arguments before this Court, were the entries in this diary sought to be impugnl~... C Indeed efore tW, High Court it seems to have been urged on behalf of the ht respondent that it was a diary maintained in the usual cow:se of business. Taking therefore even Ext. C.W.1/1 as well as the evidence of C.W.l, Nichhatar Singh, into consideration we are satisfied that this pamphlet should have come into existence on the 1st of March.\n\nW1~ have also compared the signature of the 1st respondent in Ext.\n\nP.W.1/4 witl1 many of his admitted signatures and are satisfied that that signature is his and that is confirmed by the expert evidence of Mr. Puri. There being no satisfactory epcplanation on the part of the 1st: respondent regarding the presence of his signature on Ext. P.W.1/4 it is to be concluded on the evidence of Nichhatar Singh and Jathedar Ram Singh taken together that the 1st respondent had come to C.W.ll's prnss and given Ext. P.W.1/4 for printing. Conclusion No. 3 of tile learned Judge also supports this finding. We are not quite sure about the presence of Bedi Raghbir Singh at that point of time. But we can see: no cogent reason for disbelieving the evidence of C.W. 1 whose deposition clearly sbows that he was anxious to help the 1st respondent.\n\nBut in order to deny that Ext. P.W.1/4 was the manuscript which was used for printing the poster he also had to manufacture Ext. C.W.l/ I.\n\nThat evidence even taken 1lt its -face value establishes that the printing of the pamphlet was on the 1st-of March. If so it could have beJ::n done only at the instance of the 1st respondent. It was not even put to C.W.1 that it was done after the poll. Why Ram Singh should have printed it if not a.t the instance of respondent No. 1 was never sought to be explained.\n\nNor could respondent No. 2 have printed it.\n\nWe have bestowed our anxious consideration on how the 1st res- G pondent came to sign. Ext. P.W. 1/4. Though Jathedar Ram Singh\n\ntrie:d to say that he did not know Nichhalar Singh C.W. 1 and therefore Nichhatar Singh wanted the 1st respondent to undertake the respoin sibility of paying for the printing of the poster, it is clear that Nichhatar Singh bad known Jathedar Ram Singh for some time and there was no paiticular reason why even if the 1st respondent undertook to pay for\n\nthe printing he should sign it. It is said that it was because the 1st H respondent asked Nichhatar Singh to pfoouce that paper in his offic:e and get the paymc:nt. This .eason does not seem. to be a. good enough one for the 1st rr, spondent signing Ext. P.W.1/4. Be that as it m!LY\n\nJAGIR SINGH v, J'ASDllV .SINGH (Alagiriswami, l.) 795\n\nwe have. no. doubt that. Ext. P.W.1/4 bears 1st respondent's signature and the whole evidence establishes beyond doubt that the 1st respondent got the pamphlet printed. He probably did not expect that the . manuscript would reach the hands of the 2nd respondent.\n\nIt is in this coBI1ection that it is necessary to refer to the tape-recorded conversation. The 1st respondent had stated before the High Court that the transcript of the tape-recorded conversation can be taken as correct in so far as what he had spoken was concerned. The other person concerned in the tape-recorded conversation was Bhagwant Singh, the husband of the 2nd respondent, who was also her advocate before the High Court. Though he admitted his part in the conversation it would not be admissible in evidence because he was not examined as . a witness. What he has stated there cannot be taken as an admission on behalf of the 2nd respondent. Such admission can only relate to matters in issue before the Court, admissions prejudicial to the case of the 2nd respondent.\n\nLeaving such questions aside for the moment one thing that is obvious is that Ext. P.W.1/4 had reached the hands of the 2nd respondent during--the course of the trial and the evidence of Bedi Raghbir Singh that Nichhatar Singh gave it t<? him to be produced in the Court is not true.. This conversation was relied upon by the learned advocate appearing on behalf of the 1st respondent as esta\\).; lishing that the 1st respondent was surprised and bewildered at the fact that Ext. P.W.1/4 bore his signature. We can see no such indication.\n\nIt is to be n:membered that when this conversation was being taperecorded Bhagwant Singh was not aware of it and therefore was talking freely what was in his mind whereas the 1st respondent was quite conscious of what was going. on and that he was merely laying a trap in order to trap Bhagwant Singh into saying something in his (1st res pondent's) favour without being aware of it. t:rhe tape-recorded conver_sation is absolutely unhelpful to the 1st respondent's case.\n\nThough there are certain suspicious Jeatures in this case which the learned advocate for the 1st respondent tried to magnify and blow out of all proportion so as to obscure the real picture, .we are satisfied that the central point in the case as to the responsibility of the 1st respondent in getting the offending poster printed has been established beyond\n\nalt, i:eafonable doubt. Once that is done the question of distribution falls into its proper place.\n\nAccording to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera.\n\nThe distribution in Lalauchhi is spoken to by P.W. 2, an advocate, Mr. Balwant Singh., His evidence is attacked on behalf of the 1st respondent by -5aying that he was the junior under the 2nd respondent's husband but it is seen that that was some time ago and he had even appeared against the husband of the 2nd r.espondent in a personal case.\n\nSo his evidence cannot be attacked on this basis. The 1st respondent examined two advocates to prove that on the particular day when he was said to have distributed the poster in Lalauchhi he was in Patiala.\n\nTheir evidence has been rightly disbelieved by the learned Judge. The learned Judge has stated that both these advocates have merely lent\n\n7 96\n\nSUPREME COURT REPORTS ll 9751 3 S.C.Fl.\n\nth1emselves to prove a false plea of alibi.\n\nThe only criticism which the learned Judge has made of the evidence of Mr. Balwant Singh is that he is an Akali and his testimony cannot be accepted at its face va:luc as he would be the last person to support the Congress candidate. We are of opinion that this is the very reason why Mr. Balwant Singh's .evidence should be accepted and not the contrary. We.are therefore satisfied on evidence that the conclusion of the learned Judge on th~ point coulp not be accepted and the distribution in village Lalauchhi must be held to have been proved.\n\nAs regards the distribution in village Bakshiwala, it is spoken to by P.W. 3, an employee of the C.I.D. Punjab. His father owns land irn that village. The 1st respondent produced R.W. 19 to show that Sucha Singh, P.W. 3, did not come to him and in support of this he 'produced his register. Ext. R. W. 19/L The learned Judge's comment on this register is \"The less said about this register the better\". R.W. 19 also admitted that there was a scuffie in the village and Sucha Singh was injured. The learned Judge has held that R.W. 19's eviden~~ is such that much reliance cannot be placed on him. R.W. 21 also adniits about the injury to Sucha Singh. In this state of evidence the learned Judge has not recorded any finding about the distribution. of the poster in village Bakshiwala. We are of opinion that the distribution has been satisfactorily established.\n\nWe do not therefore fed it necessary to deal with the question of distribution in the other villages.\n\nThe 2nd respondent is a Hindu lady married to a Sikh gentleman.\n\nSuch marriages between Hindus and Sikhs have been very common.\n\nIndeed it appears that till recent times the first son of most Hindu families in Punjab became a Sikh.\n\nStill politics has driven a wedge between brothers. It has led to unfortunate situations like the one in th1' case where because the 2nd respondent happens to be a Hindu lady it was sought to be taken advantage of by the 1st respondent for his election purposes. even though he and the 2nd respondent's husband would seem to have been good friends.\n\nThe appeal is allowed and the election of the 1st respondent is :held void. The appellants will get their costs from the 1st respondent..\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 62, "entities": [{"text": "JAGIR SINGH & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "JAGIR SINGH & ANR", "offset_not_found": false}}, {"text": "JASDEV SINGH & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "JASDEV SINGH & ORS", "offset_not_found": false}}, {"text": "February 28, 1975", "label": "DATE", "start_char": 41, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "February 28, 1975 ·\n\n79:1\n\nLM."}}, {"text": "LM. H. BEG", "label": "JUDGE", "start_char": 68, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 80, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 100, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Section 123(3)", "label": "PROVISION", "start_char": 169, "end_char": 183, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(3)", "label": "PROVISION", "start_char": 459, "end_char": 468, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 485, "end_char": 523, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3087, "end_char": 3115, "source": "ner", "metadata": {"in_sentence": "796A-D]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "G. B. Pai", "label": "OTHER_PERSON", "start_char": 3278, "end_char": 3287, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, S. K. Bagga, l. K. Mehta, S. Bagga and Yash Bagga, for the appellant."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 3289, "end_char": 3300, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, S. K. Bagga, l. K. Mehta, S. Bagga and Yash Bagga, for the appellant.", "canonical_name": "S. K. Bagga"}}, {"text": "K. Mehta", "label": "LAWYER", "start_char": 3305, "end_char": 3313, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, S. K. Bagga, l. K. Mehta, S. Bagga and Yash Bagga, for the appellant."}}, {"text": "S. Bagga", "label": "LAWYER", "start_char": 3315, "end_char": 3323, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, S. K. Bagga, l. K. Mehta, S. Bagga and Yash Bagga, for the appellant.", "canonical_name": "S. K. Bagga"}}, {"text": "Yash Bagga", "label": "LAWYER", "start_char": 3328, "end_char": 3338, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, S. K. Bagga, l. K. Mehta, S. Bagga and Yash Bagga, for the appellant."}}, {"text": "lrapil Sibal Jasdev Singh", "label": "LAWYER", "start_char": 3383, "end_char": 3408, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\nlrapil Sibal Jasdev Singh and Hardev Sinfh, for respondent no."}}, {"text": "Hardev Sinfh", "label": "LAWYER", "start_char": 3413, "end_char": 3425, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\nlrapil Sibal Jasdev Singh and Hardev Sinfh, for respondent no."}}, {"text": "Bhagwant Singh", "label": "RESPONDENT", "start_char": 3450, "end_char": 3464, "source": "ner", "metadata": {"in_sentence": "Bhagwant Singh, B. D. Sharma, M. P. Varma and S. R. Sriva3tQVa, fo1 respondent no.", "canonical_name": "Bhagwant Singh"}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3466, "end_char": 3478, "source": "ner", "metadata": {"in_sentence": "Bhagwant Singh, B. D. Sharma, M. P. Varma and S. R. Sriva3tQVa, fo1 respondent no."}}, {"text": "M. P. Varma", "label": "LAWYER", "start_char": 3480, "end_char": 3491, "source": "ner", "metadata": {"in_sentence": "Bhagwant Singh, B. D. Sharma, M. P. Varma and S. R. Sriva3tQVa, fo1 respondent no."}}, {"text": "S. R. Sriva3tQVa", "label": "LAWYER", "start_char": 3496, "end_char": 3512, "source": "ner", "metadata": {"in_sentence": "Bhagwant Singh, B. D. Sharma, M. P. Varma and S. R. Sriva3tQVa, fo1 respondent no."}}, {"text": "ALAGIRISWAMI", "label": "JUDGE", "start_char": 3581, "end_char": 3593, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nALAGIRISWAMI, J.\n\nThe appellant.s are two voters of the Dakala B constituency who challenged the election of the 1st respondent to the Punjab Legislative Assembly on many grounds out of which only the charge of corrupt practice under section 123(3) and 123(3A) of the Representation of the People Act now survives for consideration."}}, {"text": "section 123(3) and 123(3A)", "label": "PROVISION", "start_char": 3815, "end_char": 3841, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 3849, "end_char": 3881, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 127A", "label": "PROVISION", "start_char": 4675, "end_char": 4687, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 4695, "end_char": 4727, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Jathedar Ram E Singh", "label": "WITNESS", "start_char": 4959, "end_char": 4979, "source": "ner", "metadata": {"in_sentence": "This is purported t.o be signed by the successful candidate as well as C.W. 2, Jathedar Ram E Singh, in whose name the pamphlet is published and P.W.1, Bcdi Raghbir Singh."}}, {"text": "Bcdi Raghbir Singh", "label": "WITNESS", "start_char": 5032, "end_char": 5050, "source": "ner", "metadata": {"in_sentence": "This is purported t.o be signed by the successful candidate as well as C.W. 2, Jathedar Ram E Singh, in whose name the pamphlet is published and P.W.1, Bcdi Raghbir Singh."}}, {"text": "Bhagwant Singh", "label": "WITNESS", "start_char": 5255, "end_char": 5269, "source": "ner", "metadata": {"in_sentence": "111ere is also a tape-recorded conversation between the 1st respondent and Bhagwant Singh, the husband of the 2nd respondent, who was also her counsel in the election petition, from which the\n\n1st respondent tried to make out that he was wholly unaware of and F surprised at his signature in Ext."}}, {"text": "Bedi Raghbir Singh", "label": "WITNESS", "start_char": 5613, "end_char": 5631, "source": "ner", "metadata": {"in_sentence": "between the 2.nd respondent, Bedi Raghbir Singh P.W. 1, Nichhatar Singh C.W. 1 and Jathedar Ram Singh C.W. 2."}}, {"text": "Nichhatar Singh", "label": "WITNESS", "start_char": 5640, "end_char": 5655, "source": "ner", "metadata": {"in_sentence": "between the 2.nd respondent, Bedi Raghbir Singh P.W. 1, Nichhatar Singh C.W. 1 and Jathedar Ram Singh C.W. 2."}}, {"text": "Jathedar Ram Singh", "label": "WITNESS", "start_char": 5667, "end_char": 5685, "source": "ner", "metadata": {"in_sentence": "between the 2.nd respondent, Bedi Raghbir Singh P.W. 1, Nichhatar Singh C.W. 1 and Jathedar Ram Singh C.W. 2."}}, {"text": "Nicbbatar Singh", "label": "OTHER_PERSON", "start_char": 5963, "end_char": 5978, "source": "ner", "metadata": {"in_sentence": "P.W. 1/4\n\n4 are in the handwriting of Nicbbatar Singh; H\n\n( 4) that the signature of the successful candidate on Ext.", "canonical_name": "Nicbbatar Singh"}}, {"text": "1st of March, 1972", "label": "DATE", "start_char": 8148, "end_char": 8166, "source": "ner", "metadata": {"in_sentence": "There is very satisfactory evidence that the poster should have been printed on the 1st of March, 1972."}}, {"text": "Ram Singh", "label": "WITNESS", "start_char": 8803, "end_char": 8812, "source": "ner", "metadata": {"in_sentence": "C.W. 1/1 as 1st of March and his evidence is that it was printed on the 1st of March though he mentions only the niqne of C.W.2, Ram Singh."}}, {"text": "5th of Mari:h", "label": "DATE", "start_char": 8986, "end_char": 8999, "source": "ner", "metadata": {"in_sentence": "Whether that letter was sent on the 1st of March, as is spoken to by him, or on the 5th of Mari:h, the date which it bears, doe5 not affect the substance of the question."}}, {"text": "Deol", "label": "JUDGE", "start_char": 9143, "end_char": 9147, "source": "ner", "metadata": {"in_sentence": "This letter has been received by the Sub-Divisional Magistrate, Miss Deol on 12th March."}}, {"text": "1st of March", "label": "DATE", "start_char": 10606, "end_char": 10618, "source": "ner", "metadata": {"in_sentence": "C.W.1/1 as well as the evidence of C.W.l, Nichhatar Singh, into consideration we are satisfied that this pamphlet should have come into existence on the 1st of March."}}, {"text": "Puri", "label": "OTHER_PERSON", "start_char": 10832, "end_char": 10836, "source": "ner", "metadata": {"in_sentence": "P.W.1/4 witl1 many of his admitted signatures and are satisfied that that signature is his and that is confirmed by the expert evidence of Mr. Puri."}}, {"text": "C.W.ll", "label": "OTHER_PERSON", "start_char": 11101, "end_char": 11107, "source": "ner", "metadata": {"in_sentence": "P.W.1/4 it is to be concluded on the evidence of Nichhatar Singh and Jathedar Ram Singh taken together that the 1st respondent had come to C.W.ll's prnss and given Ext."}}, {"text": "Ram Singh", "label": "OTHER_PERSON", "start_char": 11857, "end_char": 11866, "source": "ner", "metadata": {"in_sentence": "Why Ram Singh should have printed it if not a.t the instance of respondent No."}}, {"text": "Jathedar Ram Singh", "label": "OTHER_PERSON", "start_char": 12123, "end_char": 12141, "source": "ner", "metadata": {"in_sentence": "Though Jathedar Ram Singh\n\ntrie:d to say that he did not know Nichhalar Singh C.W. 1 and therefore Nichhatar Singh wanted the 1st respondent to undertake the respoin sibility of paying for the printing of the poster, it is clear that Nichhatar Singh bad known Jathedar Ram Singh for some time and there was no paiticular reason why even if the 1st respondent undertook to pay for\n\nthe printing he should sign it."}}, {"text": "Nichhalar Singh", "label": "OTHER_PERSON", "start_char": 12178, "end_char": 12193, "source": "ner", "metadata": {"in_sentence": "Though Jathedar Ram Singh\n\ntrie:d to say that he did not know Nichhalar Singh C.W. 1 and therefore Nichhatar Singh wanted the 1st respondent to undertake the respoin sibility of paying for the printing of the poster, it is clear that Nichhatar Singh bad known Jathedar Ram Singh for some time and there was no paiticular reason why even if the 1st respondent undertook to pay for\n\nthe printing he should sign it.", "canonical_name": "Nicbbatar Singh"}}, {"text": "Nichhatar Singh", "label": "OTHER_PERSON", "start_char": 12215, "end_char": 12230, "source": "ner", "metadata": {"in_sentence": "Though Jathedar Ram Singh\n\ntrie:d to say that he did not know Nichhalar Singh C.W. 1 and therefore Nichhatar Singh wanted the 1st respondent to undertake the respoin sibility of paying for the printing of the poster, it is clear that Nichhatar Singh bad known Jathedar Ram Singh for some time and there was no paiticular reason why even if the 1st respondent undertook to pay for\n\nthe printing he should sign it.", "canonical_name": "Nicbbatar Singh"}}, {"text": "Bhagwant Singh", "label": "RESPONDENT", "start_char": 13433, "end_char": 13447, "source": "ner", "metadata": {"in_sentence": "The other person concerned in the tape-recorded conversation was Bhagwant Singh, the husband of the 2nd respondent, who was also her advocate before the High Court.", "canonical_name": "Bhagwant Singh"}}, {"text": "Lalauchhi", "label": "GPE", "start_char": 15430, "end_char": 15439, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Bakshiwala", "label": "GPE", "start_char": 15441, "end_char": 15451, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Jhiil", "label": "GPE", "start_char": 15453, "end_char": 15458, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Dhanauri", "label": "GPE", "start_char": 15460, "end_char": 15468, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Kutabanpur", "label": "GPE", "start_char": 15470, "end_char": 15480, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Bluma Kheri", "label": "GPE", "start_char": 15482, "end_char": 15493, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Saidipur", "label": "GPE", "start_char": 15495, "end_char": 15503, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Rajla", "label": "GPE", "start_char": 15505, "end_char": 15510, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Bathoi Kalan", "label": "OTHER_PERSON", "start_char": 15527, "end_char": 15539, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Chhitera", "label": "GPE", "start_char": 15544, "end_char": 15552, "source": "ner", "metadata": {"in_sentence": "According to the petitioners the posters were distributed in the villages Lalauchhi, Bakshiwala, Jhiil, Dhanauri, Kutabanpur, Bluma Kheri, Saidipur, Rajla, 'Khuda Dadpur, Bathoi Kalan and Chhitera."}}, {"text": "Balwant Singh", "label": "WITNESS", "start_char": 15626, "end_char": 15639, "source": "ner", "metadata": {"in_sentence": "The distribution in Lalauchhi is spoken to by P.W. 2, an advocate, Mr. Balwant Singh.,"}}, {"text": "Patiala", "label": "GPE", "start_char": 16099, "end_char": 16106, "source": "ner", "metadata": {"in_sentence": "The 1st respondent examined two advocates to prove that on the particular day when he was said to have distributed the poster in Lalauchhi he was in Patiala."}}, {"text": "Balwant Singh", "label": "RESPONDENT", "start_char": 16415, "end_char": 16428, "source": "ner", "metadata": {"in_sentence": "The only criticism which the learned Judge has made of the evidence of Mr. Balwant Singh is that he is an Akali and his testimony cannot be accepted at its face va:luc as he would be the last person to support the Congress candidate.", "canonical_name": "Bhagwant Singh"}}, {"text": "C.I.D. Punjab", "label": "ORG", "start_char": 16985, "end_char": 16998, "source": "ner", "metadata": {"in_sentence": "As regards the distribution in village Bakshiwala, it is spoken to by P.W. 3, an employee of the C.I.D. Punjab."}}, {"text": "Sucha Singh", "label": "WITNESS", "start_char": 17088, "end_char": 17099, "source": "ner", "metadata": {"in_sentence": "The 1st respondent produced R.W. 19 to show that Sucha Singh, P.W. 3, did not come to him and in support of this he 'produced his register."}}, {"text": "Sucha Singh", "label": "OTHER_PERSON", "start_char": 17357, "end_char": 17368, "source": "ner", "metadata": {"in_sentence": "R.W. 19 also admitted that there was a scuffie in the village and Sucha Singh was injured."}}, {"text": "Punjab", "label": "GPE", "start_char": 18064, "end_char": 18070, "source": "ner", "metadata": {"in_sentence": "Indeed it appears that till recent times the first son of most Hindu families in Punjab became a Sikh."}}]}
{"document_id": "1975_3_797_801_EN", "year": 1975, "text": "OIL INDIA LTD.\n\nTHE SUPERINTENDENT OF TAXES & OTHERS March 3, 1975\n\n(K. K. MATHEW AND P. K. GOSWAMI, JJ.]\n\nCentral Sales Tax Act-Sect1°on 3-lnterstate Sale.:..-Sale in the course of tnterstatc trade-If movement of goods as a result of covenant or an incident of the contract of sale-Must sale precede the movement of goods.\n\nBy an agreement entered into betwC'Cn the petitioner, the Government' of India, Burma Oil Company Limited and Assam Oil Company Limited, it was agreed that all crude oil produced by the petitioner (except Assam Oil Com pany's entitlement) be sold to and purchased by the Government of Jndia.\n\nTho exact clause reads as under : ,\n\n \"All crude oil produced by Oil India excluding Assam Oil Com pany's entitlement in respect of Oil India's existing areas under clause\n\n20 of tho Promotion Agreement wilI (subject as hereinafter provided) bo sold to and purchased by tho Government of India PROVIDED that after meeting as a first call on such oil the joint annual requirements upto 2t million tons of Indian Refineries Limited'li Barauni and Nunmati Refineries Assam Oil Companys Digboi refinery shall have the next call thereon up to a maximum of 435,000 tons per annum to the extent that it cannot be economically met from Assam Oil Company's le11Sed areas.\" -\n\nThe petitioner pursuant to the provisions of the said clause 7 upplied crude oil to Banmni Refinery of Indian Oil Corporation situated in Bihar through pipeline constructed and owned by the petitioner Company. At Barauni Refinery the crude oil which flows through tho pipes from the oil fields of Assam is pumped into tho Indian Oil Corporation's tanks and thereafter it is measured.\n\nAfter the measurement is agreed upon, the Indian Oil Corporation takes delivery on behalf of the Government of India. The petitioner Company bas been filing Jegular sales tax returns uncher the Bihar Sales Tax Act and was being ed under that Act for the supply of crude oil to tbo Refinery at Barauni treating the supply as intra-State 11ales.\n\nThereafter. the Sale11 Tax Authority in Assam issued notice to the petitioner on the ground that the C'.cntral sales tax was payable under the Oentral Sales Tax Act on the supply of crude oil to the Refinery at Barauni as the •ales were in the course of inter-State trade. The Assessing Authority held that the supply of crude oil to tho Refinery at Barauni by tho petitioner attracted Central Sales Tax. In tho present petition, tho petitioner seeks a writ of mandamus direeting the Assam Sales Tax Authorities not to levy tho sales tax under tho Central Sale• Tax Act on the supply of crude oil to tht' refinery at Barauni. In the alternative, tbe petitioner prayed for a direction to the Bihar Tax Authorities to refund the taxes collected.\n\nHELD : Under Section 3 of the Central Sal~ Tax Act a sale or purchase of goods shall be deemed to have taken place ia the course of inter-State trade or commerce if the sale or purchase occasions moment of goods from one State to another. This Court has held in a number of cases that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale then the sale is an inter-State •ale. In thi• case tho crude oil was carrieC: from Assam through pipeline to Barauni in\n\nBiha~. Clause 12 of the agreement proves that the petitioner shall _ arrange for the construction of pipe-line or such other related facilitiea &9 the Company shall consider necessary for . tm, transport of crude oil to be prodnced by it to the refinery at Baraui:ii. This would idicate that the construction of . the pipeline was underaken by the petitioner m pursuance of t~ agreement\n\nSUPREME COURT REPORTS [19751 3 s.c.n.\n\n:and that was for the specific puipo5e of transporting crude oil to Barauni from A\n\nAssam. This can only_ point to the conclusion that the parties contemplated that there should be movement of good11 from the State of Assam to the State cf Bihar in pursuance to the contract 6f sale. It is immaterial as to in wbi'ch\n\nstate the property in the goods' passes. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. The sales were, .therefore, in the course of inter State trade and the Bihar Government bad no jurisdiction to tax, the sales under the Sales Tax Laws of the State. The Bihar Sales Tax Authorities wcre directed not to impose sales tax . under the provisions of Bihar Sales Tax Act and were directed to refund the sales tax already collected. [800D-G; 801AC]\n\nORIGINAL APPELLATE JURISDICTlON : Writ Petitions Nos. 641- 642 of 1970.\n\nPetition Under Article 32 of the Constitution.\n\nL. N. Sinha, Solicitor General of India, K. K. Jain, Bishamber Lal and S. K. Gupta, for the Petitioner.\n\nD. Mukherjee and S. N. Choudhury, for the Respondems 1-3.\n\nL. M. Singhvi and U. P. Singh, for Respondents No. 4-6.\n\nThe Judgment of the Court was delivered by\n\nMATHEW, J. An agreement dated 14-1-1958 was executed by and between the Government of India, the Burmah Oil Company Ltd.\n\nand the Assam Oil Company Ltd. for the promotion of a new company inter alia with the object of obtaining mining lease for the p; oduction of petroleum and crude oil.\n\nThe promotion agreement was later on modified by a supplemental agreement dated 15-2-1959. The pell- E tioner company was incorporated in accordance with the promotion agreement as modified by the aforesaid supplemental agreement.\n\nBy an adoption agretment dated 14-3-1959, the petitioner adopted the promotion agreement of 1958 as modified by tbe said supplemental agreement.\n\nThe petitioner has its head office in the State of Assa11n and is engaged in the business of prospecting petroleum and also prodm:ing and transporting crude oil. from the State of Assam pursuant F to the prospecting licence and mining lease granted by the State of '\n\nAss11m.\n\nBy a second supplemental agreement dated 27-7-1961 executed between the Government of India, Burmah Oil Company Ltd. and Assam Oil Company Ltd. and the petitioner, certain provisions of the promotion agreement dated 14-1-1958 were modified. Clause 7 of the second supplemental agreement reads as follows :\n\n\"7. All crude oil produced by Oil India excluding Assam Oil Company's entitlement in respect of Oil India's existing areas under clause 2u of the Promotion Agreement 'VIil (subject as hereinafter provided) be sold to and purchased by-the Government of India PROVIDBD that after meeting as a first call on such oil the joint annual requirements upto 2i million tons of Indian Refineries Limited's Barauni and Nunmati Refineries Assam Oil Company'.s Digboi Refinery shall have the next call thereon up to a maximum of 435,000 tons per\n\nOIL INDIA LTD. V. SUI'DT. OF TAxES (Mathew,!,) 799\n\nannum to the extent that it cannot be economically met from Assam Oil Company's leased areas.\"\n\nThe petitioner in pursuance to the provisions of clause 7 supplied crude oil to Barauni and Nunmati Refineries of Indian Oil Corporation (previously Indian Oil Refineries Ltd.) and to Digboi Refinery of Assam Oil Company Ltd. through pipe-lines constructed and owned by the petitioner company.\n\nThe Barauni Refinery .is situated m , Bihar while the other two refineries are situated in the State of Assam.\n\nAt Barauni Refinery the crude oil which flows through the pipes from the oil fields of Assam is pumped into the Indian Oil Corporation's tanks and thereafter it is measured.\n\nAfter the measp.rements are agreed to by both the parties, namely, the petitioner and the Indian Oil Corporation, the crude oil is taken delivery of by the Indian Oil Corporation on behalf of the Government of India.\n\nThe petitioner company has been filing regular sales tax returns before the Bihar Sales-tax authorities under the Bihar Sales Tax Act and was being assessed under that Act for the supply of crude oil to the refinery at Barauni treating the supply as intra-state sales.\n\nFor the period ending 31 September 1964, the petitioner company sold crude oil worth Rs. 49,26,813.06 to the refinery at Barauni and the same wa~ subjected to sales tax under the Bihar Sales Tax Act.\n\nIn the year 1966, sales tax authorities in Assam issued notice to the petitioner stating that\n\nSales Tax was payable on the supply of crude oil to the refinery at Barauni under the Central Sales Tax Act as according to them the sales were in the course of inter-state trade.\n\nThe petitioner contended that sales were intra-State and not subject to tax under the Central Sales Tax Act.\n\nBy the assessment order dated 31-3-1966, respondent No. 1 negatived the contention raised by the petitioner and held that by supplying crude oil to the refinery at Barauni the petitioner effected sales of oil to the Indian Oil Company and that they were sales in the course of inter-State trade and assessed the petitioner-company to pay a tax of Rs. 4,47,892.10 (Annexure J). By another order dated 31-3-1966, the petitioner was assessed to sales tax under Central Sales Tax Act to Rs. 12,23,072.90 by r-espondent No. 1 (Annexure K).\n\n; f n these writ petitions the petitioner prays for quashing Annexures J-and K and for a mandamus directing respondents 1 to 3 not to levy\n\nsales , tax under the Central Sales Tax Act on the sale of crude oH suppJied/by the petitioner to the refinery at Barauni.\n\nJn the alternati\\e, the. petitioner prays for :\n\nl . the issue of a writ, order or direction in the nature of . mandamus directing respondents 4, 5 and 6 not to levy tax under the Bihar Sales Tax Act on . the sales of crude oil made by the petitioner to the refinery at Barauni;\n\n2. A writ, order or direction in the nature of certiorari quashing the various assessment orders passed by respondent No. 4 on the sales of crude oil made by the petitioner-company to the refinery at Barauni; and ·\n\nSUPREMB COURT REPORTS ll975J 3 s.c.R.\n\n3. A writ, order or direction in the nature of a mandamus\n\ndirecting the respondents 4 to 6 to refund the various amounts collected as sales tax from the petitioner company.\n\nThe question for consideration in these writ petitions is whether the sales made by the petitioner m pursuance to clause 7 of the second supplemental agreement to Government of India through the agency of fndian Oil Corporation were sales in the course of inter-state trade and were therefore liable to sales tax under the Central Sales Tax Act.\n\nSection 3 of the Central Sales Tax Act provides :\n\n\"3. A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase--\n\n( a) occasions the movement of goods from one State to another; or\n\n(b) is effected by a transfer of documents of title to the\n\ngoods during their movement from one State to D another.\"\n\nThis Court has held in a number of cases that if the movement of goods from one State to another is the result of a covenant or an incident of the Contract of Sale, then the sale is an inter-state sale.\n\nSte Tata Iron & Steel Co. Ltd. v. S. R. Sarkar( 1) and The State of Jarnmu & Kashmir & Ors. v. Caltex (India) Ltd.(2). Here, the crude otl w:'IS E carried from Assam through the pipelines specially constructed by the petitioner to the refinery at Barauni in Bihar and there the oil was pumped and delivered to the Indian Oil Corporation. Clause 12 of the agreement dated 14-1-1958 provides that the petitioner shall arranie for the construction of pipeline Or such other related facilities as tl1e company shall consider necessary for the transport . of crude oil to be produced by it to the refinery at Barauni. This would indicate that tile F construction of pipeline was under-taken by the petitioner in pursuance of the agreement and that that was for the specific purpose of transporting crude oil to Barauni from Assam. This can only point to the conclusion that the parties contemplated that there should be movement of goods.from the State of Assam to the State of Bihar in pursUAnce to tbe contract of sale.\n\nClause 7 of the 1961 agreement must needs be read with its pn~ cursory clause 12 of the 1958 agreement since all the contracting parties were well aware of their respective obligations in the transactions arismg out of the several agreements-not one of which can be left out of consideration.\n\nEven though clause 7 of the supplemental agreement does not H etpressly provide for movement of the goods, it is clear that the parties\n\nnvisaged the movement of crude oil in ptrrsu?:ice to the contract from\n\n(I) [1961] I S.C.R. 379 at 391.\n\n(2) 17 S.T.C. 61 ~\n\nOIL INDIA LTD. v. SUPDT. OF TAXES (Mathew, J.) 801\n\nllie State of Assam to rhe State of Bihar.\n\nIn other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State tbc property m the goods passes, a sale which occasions \"movement of goods from om: State to another is a sale in the course or inter-state trade\".\n\nThe inkr-Statc mov:'!ment must be the result of a cownant express or implied in the contract of sale or an incident of the contract. It is nm ne.::cssary that the sale must precede the inter-State movement in order ll1at the sale mav be deemed to have occasioned such movement.\n\nIt is dlSv not ne, essa.ry for a sale to be deemed to have taken place in the\n\nrnurs~ of inter-State trade or commerce, that the covenant regarding\n\niina-tate movement must he specified in the contract itself. [t would be enough if the movcmi::nt was m purs11ance of and incidental to rhc rnntrnc1 of sale.\n\nSee State Trading Corporation v. State of Mysore( 1).\n\nTherefore, we think that the sales in question were sales in the course of inter State trade and that the Bihar Government had no jurisdiction to tax the sales under the Sales Tax Jaw of the State.\n\nThe petitiOner is, therefore, entitled to the alternative reliefs prayed for in the writ petit1on5. namely, that respondents 4 to 6 in each of the petitions should be enjoined not to impose saks tax under the provi>ions of the Bihar Sales Tax Act in respect of sales made in pursuance of clause 7 and that they s11ould be directed to refund to the petitioner the sales tax collected from the petitioner hy way of sales tax as the various assessment orders made by respondent Np. 4 stand quashed.\n\nThe writ petitions are allowed to the extent indicated and they are dismissed in other respcts. In the 1:in:umstances. we make no order as to costs.\n\nP.H.P.\n\n(IJ 14 S.T.C. 188. 5-5t4SCl/75\n\nPetitions allowed in part.", "total_entities": 67, "entities": [{"text": "OIL INDIA LTD", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "OIL INDIA LTD", "offset_not_found": false}}, {"text": "THE SUPERINTENDENT OF TAXES & OTHERS", "label": "RESPONDENT", "start_char": 16, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "THE SUPERINTENDENT OF TAXES & OTHERS", "offset_not_found": false}}, {"text": "March 3, 1975", "label": "DATE", "start_char": 53, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "THE SUPERINTENDENT OF TAXES & OTHERS March 3, 1975\n\n(K. K. MATHEW AND P. K. GOSWAMI, JJ.]"}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 69, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 86, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 107, "end_char": 128, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Government' of India", "label": "ORG", "start_char": 383, "end_char": 403, "source": "ner", "metadata": {"in_sentence": "By an agreement entered into betwC'Cn the petitioner, the Government' of India, Burma Oil Company Limited and Assam Oil Company Limited, it was agreed that all crude oil produced by the petitioner (except Assam Oil Com pany's entitlement) be sold to and purchased by the Government of Jndia."}}, {"text": "Burma Oil Company Limited", "label": "ORG", "start_char": 405, "end_char": 430, "source": "ner", "metadata": {"in_sentence": "By an agreement entered into betwC'Cn the petitioner, the Government' of India, Burma Oil Company Limited and Assam Oil Company Limited, it was agreed that all crude oil produced by the petitioner (except Assam Oil Com pany's entitlement) be sold to and purchased by the Government of Jndia."}}, {"text": "Assam Oil Company Limited", "label": "ORG", "start_char": 435, "end_char": 460, "source": "ner", "metadata": {"in_sentence": "By an agreement entered into betwC'Cn the petitioner, the Government' of India, Burma Oil Company Limited and Assam Oil Company Limited, it was agreed that all crude oil produced by the petitioner (except Assam Oil Com pany's entitlement) be sold to and purchased by the Government of Jndia."}}, {"text": "Assam Oil Com pany", "label": "ORG", "start_char": 530, "end_char": 548, "source": "ner", "metadata": {"in_sentence": "By an agreement entered into betwC'Cn the petitioner, the Government' of India, Burma Oil Company Limited and Assam Oil Company Limited, it was agreed that all crude oil produced by the petitioner (except Assam Oil Com pany's entitlement) be sold to and purchased by the Government of Jndia."}}, {"text": "Government of Jndia", "label": "ORG", "start_char": 596, "end_char": 615, "source": "ner", "metadata": {"in_sentence": "By an agreement entered into betwC'Cn the petitioner, the Government' of India, Burma Oil Company Limited and Assam Oil Company Limited, it was agreed that all crude oil produced by the petitioner (except Assam Oil Com pany's entitlement) be sold to and purchased by the Government of Jndia."}}, {"text": "India", "label": "GPE", "start_char": 687, "end_char": 692, "source": "ner", "metadata": {"in_sentence": "Tho exact clause reads as under : ,\n\n \"All crude oil produced by Oil India excluding Assam Oil Com pany's entitlement in respect of Oil India's existing areas under clause\n\n20 of tho Promotion Agreement wilI (subject as hereinafter provided) bo sold to and purchased by tho Government of India PROVIDED that after meeting as a first call on such oil the joint annual requirements upto 2t million tons of Indian Refineries Limited'li Barauni and Nunmati Refineries Assam Oil Companys Digboi refinery shall have the next call thereon up to a maximum of 435,000 tons per annum to the extent that it cannot be economically met from Assam Oil Company's le11Sed areas.\" -"}}, {"text": "clause\n\n20", "label": "PROVISION", "start_char": 783, "end_char": 793, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act", "statute": "Central Sales Tax Act"}}, {"text": "Government of India", "label": "ORG", "start_char": 892, "end_char": 911, "source": "ner", "metadata": {"in_sentence": "Tho exact clause reads as under : ,\n\n \"All crude oil produced by Oil India excluding Assam Oil Com pany's entitlement in respect of Oil India's existing areas under clause\n\n20 of tho Promotion Agreement wilI (subject as hereinafter provided) bo sold to and purchased by tho Government of India PROVIDED that after meeting as a first call on such oil the joint annual requirements upto 2t million tons of Indian Refineries Limited'li Barauni and Nunmati Refineries Assam Oil Companys Digboi refinery shall have the next call thereon up to a maximum of 435,000 tons per annum to the extent that it cannot be economically met from Assam Oil Company's le11Sed areas.\" -"}}, {"text": "Indian Refineries Limited'li Barauni", "label": "ORG", "start_char": 1022, "end_char": 1058, "source": "ner", "metadata": {"in_sentence": "Tho exact clause reads as under : ,\n\n \"All crude oil produced by Oil India excluding Assam Oil Com pany's entitlement in respect of Oil India's existing areas under clause\n\n20 of tho Promotion Agreement wilI (subject as hereinafter provided) bo sold to and purchased by tho Government of India PROVIDED that after meeting as a first call on such oil the joint annual requirements upto 2t million tons of Indian Refineries Limited'li Barauni and Nunmati Refineries Assam Oil Companys Digboi refinery shall have the next call thereon up to a maximum of 435,000 tons per annum to the extent that it cannot be economically met from Assam Oil Company's le11Sed areas.\" -"}}, {"text": "Assam Oil Company", "label": "ORG", "start_char": 1246, "end_char": 1263, "source": "ner", "metadata": {"in_sentence": "Tho exact clause reads as under : ,\n\n \"All crude oil produced by Oil India excluding Assam Oil Com pany's entitlement in respect of Oil India's existing areas under clause\n\n20 of tho Promotion Agreement wilI (subject as hereinafter provided) bo sold to and purchased by tho Government of India PROVIDED that after meeting as a first call on such oil the joint annual requirements upto 2t million tons of Indian Refineries Limited'li Barauni and Nunmati Refineries Assam Oil Companys Digboi refinery shall have the next call thereon up to a maximum of 435,000 tons per annum to the extent that it cannot be economically met from Assam Oil Company's le11Sed areas.\" -"}}, {"text": "clause 7", "label": "PROVISION", "start_char": 1339, "end_char": 1347, "source": "regex", "metadata": {"statute": null}}, {"text": "Banmni Refinery of Indian Oil Corporation", "label": "ORG", "start_char": 1369, "end_char": 1410, "source": "ner", "metadata": {"in_sentence": "The petitioner pursuant to the provisions of the said clause 7 upplied crude oil to Banmni Refinery of Indian Oil Corporation situated in Bihar through pipeline constructed and owned by the petitioner Company."}}, {"text": "Bihar", "label": "GPE", "start_char": 1423, "end_char": 1428, "source": "ner", "metadata": {"in_sentence": "The petitioner pursuant to the provisions of the said clause 7 upplied crude oil to Banmni Refinery of Indian Oil Corporation situated in Bihar through pipeline constructed and owned by the petitioner Company."}}, {"text": "Assam", "label": "GPE", "start_char": 1582, "end_char": 1587, "source": "ner", "metadata": {"in_sentence": "At Barauni Refinery the crude oil which flows through tho pipes from the oil fields of Assam is pumped into tho Indian Oil Corporation's tanks and thereafter it is measured."}}, {"text": "Indian Oil Corporation", "label": "ORG", "start_char": 1607, "end_char": 1629, "source": "ner", "metadata": {"in_sentence": "At Barauni Refinery the crude oil which flows through tho pipes from the oil fields of Assam is pumped into tho Indian Oil Corporation's tanks and thereafter it is measured."}}, {"text": "Barauni", "label": "GPE", "start_char": 1963, "end_char": 1970, "source": "ner", "metadata": {"in_sentence": "The petitioner Company bas been filing Jegular sales tax returns uncher the Bihar Sales Tax Act and was being ed under that Act for the supply of crude oil to tbo Refinery at Barauni treating the supply as intra-State 11ales."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 2773, "end_char": 2782, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 12", "label": "PROVISION", "start_char": 3291, "end_char": 3300, "source": "regex", "metadata": {"statute": null}}, {"text": "Baraui", "label": "GPE", "start_char": 3541, "end_char": 3547, "source": "ner", "metadata": {"in_sentence": "tm, transport of crude oil to be prodnced by it to the refinery at Baraui:ii."}}, {"text": "Bihar Government", "label": "ORG", "start_char": 4284, "end_char": 4300, "source": "ner", "metadata": {"in_sentence": "The sales were, .therefore, in the course of inter State trade and the Bihar Government bad no jurisdiction to tax, the sales under the Sales Tax Laws of the State."}}, {"text": "Bihar Sales Tax Authorities", "label": "ORG", "start_char": 4382, "end_char": 4409, "source": "ner", "metadata": {"in_sentence": "The Bihar Sales Tax Authorities wcre directed not to impose sales tax ."}}, {"text": "Bihar Sales Tax Act", "label": "STATUTE", "start_char": 4474, "end_char": 4493, "source": "regex", "metadata": {}}, {"text": "Article 32", "label": "PROVISION", "start_char": 4660, "end_char": 4670, "source": "regex", "metadata": {"linked_statute_text": "Bihar Sales Tax Act", "statute": "Bihar Sales Tax Act"}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 4693, "end_char": 4704, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General of India, K. K. Jain, Bishamber Lal and S. K. Gupta, for the Petitioner."}}, {"text": "K. K. Jain", "label": "LAWYER", "start_char": 4734, "end_char": 4744, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General of India, K. K. Jain, Bishamber Lal and S. K. Gupta, for the Petitioner."}}, {"text": "Bishamber Lal", "label": "LAWYER", "start_char": 4746, "end_char": 4759, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General of India, K. K. Jain, Bishamber Lal and S. K. Gupta, for the Petitioner."}}, {"text": "S. K. Gupta", "label": "LAWYER", "start_char": 4764, "end_char": 4775, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General of India, K. K. Jain, Bishamber Lal and S. K. Gupta, for the Petitioner."}}, {"text": "D. Mukherjee", "label": "LAWYER", "start_char": 4798, "end_char": 4810, "source": "ner", "metadata": {"in_sentence": "D. Mukherjee and S. N. Choudhury, for the Respondems 1-3."}}, {"text": "S. N. Choudhury", "label": "LAWYER", "start_char": 4815, "end_char": 4830, "source": "ner", "metadata": {"in_sentence": "D. Mukherjee and S. N. Choudhury, for the Respondems 1-3."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 4857, "end_char": 4870, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and U. P. Singh, for Respondents No."}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 4875, "end_char": 4886, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi and U. P. Singh, for Respondents No."}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 4958, "end_char": 4964, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMATHEW, J. An agreement dated 14-1-1958 was executed by and between the Government of India, the Burmah Oil Company Ltd.\n\nand the Assam Oil Company Ltd. for the promotion of a new company inter alia with the object of obtaining mining lease for the p; oduction of petroleum and crude oil."}}, {"text": "Burmah Oil Company Ltd.", "label": "ORG", "start_char": 5055, "end_char": 5078, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMATHEW, J. An agreement dated 14-1-1958 was executed by and between the Government of India, the Burmah Oil Company Ltd.\n\nand the Assam Oil Company Ltd. for the promotion of a new company inter alia with the object of obtaining mining lease for the p; oduction of petroleum and crude oil."}}, {"text": "Assam Oil Company Ltd.", "label": "ORG", "start_char": 5088, "end_char": 5110, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMATHEW, J. An agreement dated 14-1-1958 was executed by and between the Government of India, the Burmah Oil Company Ltd.\n\nand the Assam Oil Company Ltd. for the promotion of a new company inter alia with the object of obtaining mining lease for the p; oduction of petroleum and crude oil."}}, {"text": "14-3-1959", "label": "DATE", "start_char": 5511, "end_char": 5520, "source": "ner", "metadata": {"in_sentence": "By an adoption agretment dated 14-3-1959, the petitioner adopted the promotion agreement of 1958 as modified by tbe said supplemental agreement."}}, {"text": "27-7-1961", "label": "DATE", "start_char": 5944, "end_char": 5953, "source": "ner", "metadata": {"in_sentence": "from the State of Assam pursuant F to the prospecting licence and mining lease granted by the State of '\n\nAss11m.\n\nBy a second supplemental agreement dated 27-7-1961 executed between the Government of India, Burmah Oil Company Ltd. and Assam Oil Company Ltd. and the petitioner, certain provisions of the promotion agreement dated 14-1-1958 were modified."}}, {"text": "14-1-1958", "label": "DATE", "start_char": 6119, "end_char": 6128, "source": "ner", "metadata": {"in_sentence": "from the State of Assam pursuant F to the prospecting licence and mining lease granted by the State of '\n\nAss11m.\n\nBy a second supplemental agreement dated 27-7-1961 executed between the Government of India, Burmah Oil Company Ltd. and Assam Oil Company Ltd. and the petitioner, certain provisions of the promotion agreement dated 14-1-1958 were modified."}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 6144, "end_char": 6152, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 2", "label": "PROVISION", "start_char": 6339, "end_char": 6347, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Refineries Limited", "label": "ORG", "start_char": 6578, "end_char": 6603, "source": "ner", "metadata": {"in_sentence": "All crude oil produced by Oil India excluding Assam Oil Company's entitlement in respect of Oil India's existing areas under clause 2u of the Promotion Agreement 'VIil (subject as hereinafter provided) be sold to and purchased by-the Government of India PROVIDBD that after meeting as a first call on such oil the joint annual requirements upto 2i million tons of Indian Refineries Limited's Barauni and Nunmati Refineries Assam Oil Company'.s Digboi Refinery shall have the next call thereon up to a maximum of 435,000 tons per\n\nOIL INDIA LTD."}}, {"text": "clause 7", "label": "PROVISION", "start_char": 6941, "end_char": 6949, "source": "regex", "metadata": {"statute": null}}, {"text": "Nunmati Refineries of Indian Oil Corporation", "label": "ORG", "start_char": 6984, "end_char": 7028, "source": "ner", "metadata": {"in_sentence": "The petitioner in pursuance to the provisions of clause 7 supplied crude oil to Barauni and Nunmati Refineries of Indian Oil Corporation (previously Indian Oil Refineries Ltd.) and to Digboi Refinery of Assam Oil Company Ltd. through pipe-lines constructed and owned by the petitioner company."}}, {"text": "Digboi Refinery of Assam Oil Company Ltd.", "label": "ORG", "start_char": 7076, "end_char": 7117, "source": "ner", "metadata": {"in_sentence": "The petitioner in pursuance to the provisions of clause 7 supplied crude oil to Barauni and Nunmati Refineries of Indian Oil Corporation (previously Indian Oil Refineries Ltd.) and to Digboi Refinery of Assam Oil Company Ltd. through pipe-lines constructed and owned by the petitioner company."}}, {"text": "Barauni Refinery", "label": "ORG", "start_char": 7191, "end_char": 7207, "source": "ner", "metadata": {"in_sentence": "The Barauni Refinery .is situated m , Bihar while the other two refineries are situated in the State of Assam."}}, {"text": "31 September 1964", "label": "DATE", "start_char": 7984, "end_char": 8001, "source": "ner", "metadata": {"in_sentence": "For the period ending 31 September 1964, the petitioner company sold crude oil worth Rs."}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 8344, "end_char": 8365, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 8525, "end_char": 8546, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "31-3-1966", "label": "DATE", "start_char": 8579, "end_char": 8588, "source": "ner", "metadata": {"in_sentence": "By the assessment order dated 31-3-1966, respondent No."}}, {"text": "Indian Oil Company", "label": "ORG", "start_char": 8765, "end_char": 8783, "source": "ner", "metadata": {"in_sentence": "1 negatived the contention raised by the petitioner and held that by supplying crude oil to the refinery at Barauni the petitioner effected sales of oil to the Indian Oil Company and that they were sales in the course of inter-State trade and assessed the petitioner-company to pay a tax of Rs."}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 9007, "end_char": 9028, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 9247, "end_char": 9268, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "clause 7", "label": "PROVISION", "start_char": 10173, "end_char": 10181, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 10382, "end_char": 10403, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 10406, "end_char": 10415, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 10423, "end_char": 10444, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Clause 12", "label": "PROVISION", "start_char": 11322, "end_char": 11331, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 12002, "end_char": 12010, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 12", "label": "PROVISION", "start_char": 12073, "end_char": 12082, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 12308, "end_char": 12316, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 14086, "end_char": 14094, "source": "regex", "metadata": {"statute": null}}, {"text": "s11", "label": "PROVISION", "start_char": 14109, "end_char": 14112, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_802_809_EN", "year": 1975, "text": "80 2\n\nSUPERINTENDENT AND REMEMBRANCER OF LEGAL\n\n. AFFAIRS, WEST BENGAL v.\n\nGIRISH KUMAR NA V ALAKHA & ORS.\n\nMarch 3, 1975\n\n[A. N. RAY, CJ .. K. K. MATHEW, v. R. KRISHNA IYER AND\n\nA. C. GUPTA, JJ.]\n\nConstitution oi India, 1950, Art. 14-Purpose of dzaUenged classification in doubt-Concept of 'purpose' and 'similar situations', when can be resorted to-Legislature if can be given benefit of doubt abo'ut its purpose.\n\nConstitution of India, 1950, Art. 14-Under-inclusive classification. meaning C of-Under-inclusive classification, when permissible.\n\n' Foreign Exchang.~ Regulation Act, 1947, Section 23-Two difjer!'llf prvcedures for dealing with persons cdntra1•eni11g the Act-Benefit of inquiry by Director of Enforcement not available to persons dealt with under s. 23 (I A)-- Classification, if unreasonable. .\n\nThe respondents were tried for having committed offences under s. 4 ( 3), 20(3) and 22 of the Foreign Exchange Regulation Act, 1947 read with s. 120-11\n\nof 1he Indian Penal Code and s. 23 of the Act. The Court discharged th1~ respondents in view of the decision of the H:gh Court of Calcutta in M, I s Serlljuddin & Co. and Ors. v. Union of India and Ors. Civil Rules Nos. 2183 (W) of 1966 and cases Nos. 1998 and 1999 of 1963 decided on 16-9-1971, holding that s. 23(Al) was violative of Art. 14 of the Constitution. The appellaii.t filed :a revision pet.ition against the order, before the High Court. The High Court conc; urred with the decision of the trial Court and dismissed the revision. This appc:al, by special Jeave, is against that order dismissing the revision,\n\nIt was contended for the respondents that s. 23 pro¥ides for two different procedures for deali11g with contravention of the provisions of the Act. That is tc> say, irersons who have contravened the provisions specified in s. 23 (I) (a) and are found guilty by the Director of Enforcement need not face prosecution in a criminal court if the Director is of opinion that the penalty he is empowered to impose would be adquate punishment, whereas, the peraons aJleged to contravene the other provisions of the Act have necessarily to face prose cution in criminal court without being given the benefit of an inquiry by the Din:ctor of Enforcement and the opportunity to the delinquents to convince him that imposition of penalty by him would be adequate punishment even if they are found guilty. The classification made in s. 23 (1) is under-inclusive and is, therefore, unreasonable.\n\nAllowing 1he appeal,\n\nHELD : (i) When th1~ purpose of a challenged classification is in doubt,\n\nthe courts attribute to the classification the purpose thought to be most pro- G hable. Instead of asking what purpose or purposes the statute and other materials reflect, the court may ask what constitutionally permissible objective this statute and other rele1<ant materials could plauibly be construed to reflect.\n\nThe latter approach is the proper on~ in economic regulation cases. The decisions dealing with economic regulation indicate that courts have used the concept of 'purpose' and 'similar situations' in a manner which give consider abte kway to the legislature. This approach of judicial restraint and presumption of constitutionality requires that the legislature is given the benefit H of doubt about its pupose. [805H-806C]\n\n(ii) Often times the courts hold that unc1er0inclusion does not deny the equal protection of Jaws under Article 14. In str1.ct theory, this involves an\n\nabandonment of the principle that classification must include all who are similarly situated with respect to the purpose'. This under-inC!usion is often explained by sa}'ing thav the legislature, is free to remedy parts of a mischief or to recognize degrees of evil ana strike at the harm where it thinks it most acute. There are two main considerations to justify an under-inclusive classification. First, administrative necessity.\n\nSecond, the legislature might not be fully convinced that the particular policy which it adopts will be fully succesf'ul or wise. Thus to demand application of the policy to all whom it\n\nmight logically encompass would restrict the opportunity of a state to make experiment. These techniques would shew that some sacrifice of absolute equality may be required in order that the legal system may preserve the flcxib'..lity to evolve new solutions to social and economic problems. [806E; H-\n\n807B]\n\nMissouri K. and T. Rly. v. May, (1903) 194 U.S. 267 at p. 269and Gujarat v. Ambicao Mills A.I.R. 1974 S.C. 1~00 referred to.\n\n(iii) The experience of the Government was that persons contravening .the provisions of the Act specified in s. 23 (1) (a) invariably escaped without punishment : firstly because, successful prosecution of these offences in many Cases was not possible for want of legal evidence; secondly because, the criminal courts were not equipped with the training, expertize and experience necessary to deal with the intricate .and ingenious methods adop•ted by the persons contravening them. The Government, therefore, thought that imposi_tion of penalty by deparlml!ntal adjudication would prove a more effective means of checking \\hese types of foreign-exchange offences as against the previous system of prosecution of all offences on the basis of the strict standard of proof required for criminal prosecution-which proof was, by and large, so much within the special knowledge of the offender and so much out of the reach of th~ department. [808D-FJ\n\nThe basis of classification was that in cases where there was likelihood of\n\ngtting sufficientfy unimpeachable evidence as, for instance. in cases involving contravention of sections 14, 13(2), 15, 18 etc., where the Reserve Bank of Jndia as a specialized agency comes into the picture and be in possession of relevant materials, those cases were left to be dealt with under s. 23(1:\\) by criminal courts. The classification made in s. 23(1A) is, therefore, not discriminatory. [808H;-809£.]\n\nCRIMIN.AL APPELLATE JURISDICTION : Criminal Appeal No. 203 of 1973.\n\nA'Ppeal by special leave from the Judgment and Order 'dated the 14th March, 1973 of the Calcutta High Court in Criminal Revision No .. 613 of 1972.\n\nL. N. Sinha, Solicitor-General, G. L. Sanghi and Girish Chandra for the Appellant.\n\nA. K. Sen, Mrs. Liela Seth and U. K. Khaitan for the Respondents. 1he Judgment of the Court was delivered by ·\n\nMATHEW, J.\n\nThe respondents were tried before the Presidency Magistrate, 11th Court for' having committed offences un(ier sections 4(3), 20(3) and 22 of the Foreign Exchange Regulation Act, 1947\n\n(he<einafter called 'the A.ct') read with s. 120-B of the Indian Penal Code and s. 23 of the Act. The Court discharged the respondents in view of the decision of the High Court of Calcutta in M/s. Serajuddin\n\n& Co. and Others v. Union of India and Others(1) holding that s.\n\n.{I) Civil Rules Nos. 2183 (W), 2184 (W) of 1966 and cases Nos. 1998 and 1999 of 1963 decided on 16-9-1971.\n\n23 (1 A) was violative of Article 14 of the Constitution. The appeHant filed a revision petition against the order, before the High. Co.urt. The Court concurred with the decision of the trial Court and d1sm1ssed the\n\nreviion. This appeal, by special leave, is against that order.\n\nThe question fo1 consideration is whether s. 23 (lA) of the Act violates Article 14 of the Constitution.\n\nSection 23 ( l) as it originally stood in the Act provided that whocwr conLravenes any of the provisions of the Act or of any rule, direction or order ma<l2 thereunder shaU be punishable with imp1iwnm.;11t for a term which may extend to two years or with fine or with both, and any Court trying any such contravention may, if it thinks fit and in addition to any senteece which it may impose for such contravention, direct that any currency, security, gold or silver or goods or other property in respect of which the contravention has taken place shall b~ confiscated. Section 23 was amended in 1950 and 1952. We an! not concerned with those amendments.\n\nIn 1957, the section was further amentied by the Foreign Exchange Regulation (Amendment) Act, 1957 (Act No. 39 of 1957).\n\nThis amendment provided for depart-· mental adjudication in respect of contravention of certain provisions of the Act.\n\nThe section as amended read as under :\n\n\"23 (1) If any person contravenes the provisions of s. 4, s. 5, s. 9 or sub-section (2) of s. 12 or of any rule, direction or order made thereunder, he shall-\n\n( a) be liable to such penalty not excec'ding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided or,\n\n(b) upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine or with 'both, (lA) Whoever contravenes-\n\n(a)\n\n(b)\n\nany of the provisions of this Act or of any ruk direction. or order made thereunder, other than thos~ referred to in sub-section (1) of this section ands. 19 shall, upon conviction by a ceurt, be punishable with imprisonment for a term which may extend to two years, or with fine or with both.\n\nany ir.ection or order made under s. 19 shall, upon conv1ct1on by a Court, be punishable with fine which may extend to two thou.sand rupees.\"\n\nBy s. 23D it was provided that the Director of Enforcement shall for the purpose of adjudicating under clause (a) of sub-section (1) of s. 23\n\nhold an inquiry after notice to the person proceeded against and impo; c a penalty, but if at any stage of the. inquiry he is of opinion that having regard to the circumstances of the case, the penalty he is empowered Ill impose would not be adequate, he shall, instead of imposing a iJenalty. file a complaint in writing to the Court. ·\n\nThe argument of the respondents was that s. 23 provides for twu different procedures for dealing with contravention of the proviiuns of the Act; that while persons contravening the provisions of th<) Act specllied in s. 23 (l) (a) have to be dealt with by the Director of Enforcement in the first inst':lnce and need face trial in criminal court only if he is of opin.ion that having regard to circumstanes of the case the penalty he is empowered to impose would not be adequate, the persons contravening the other provisions of the Act are liable to be prosecuted in the first instance in criminal court without an injury by the D:rcLt.1r of Fnforcemcnt which would give them the possibility to cscap~ prosecution in a criminal court.\n\nIn other words the argument was that p.?rsons who have contravened the provisions specified in s. 23 (1 )(a) and arc tound guilty by the Director of Enforcement need not face prosccutkm in a criminal court if the Director is of opinion that the penalty he i; empowered to impose would be adequate punishment, whereas, the persuns alleged to contravene the other provisions of the Act have necessarily to face prosecutioQ in criminal court without being given the benefit of an inquiry by the Director of Enforcement and the opportumty to the delinque.nts to convince him that imposition of penalty by him would be adequate punishment even if they are found guilty.\n\nThe question, therefore, is whether persons contravening the provisions specified in s. 23 (I) (a) are similarly situated with persons con-\n\nLravenin~ the other provisions of the Act with respei; t to the purpose or object of the Act or whether by reason of the nature of the offences resulting from the contravention of the provisions pecified in s. 23 (1 )-\n\n(a) the persons contravening them form a class by themselves distinct from the persons contravening the other provisions of the Acf and therefore the legislative judgment to deal with them under a different procedurr was justified with reference to the ultimate purp9se of the Ad .\n\nl'he preamble provides the key to the general purpose of the Act.\n\nThat purpose is the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion in the economic and financial interest of India.\n\nThe general purpose or ob, iect of the Act given in the preamble may not show the specific purpose of the classification made ins. 23(1) (a) ands. 23(1A).\n\nThe Court has therefore to ascribe a purpose to the statutory classifica\" tion and coordinate the purpose with the more general purpose of the A.t and with other relevant Acts and public policies.\n\nFor achieving this the Court may not only consider the language of s. 23 but also other public knowlede abQut the evil sought to be remedied, the prior law, the statement of the purpose of the change in the prior law and the interna 1 legislative history. When the purpose of a challenged classifi- \\.1ltion is in doubt, the courts attribute to the classification the purpose\n\nthought to be most probable. Instead of asking what purpose, or purposes the statute and other materials reflect, the court may a~:k what 1:onstitutionally permissible objective this statute and other . relevant materials i.:ould plausibly be construed to reflect.\n\nThe latter aipp-roach is the proper one in economic regulation cases.\n\nThe decisions dealing with economic regulation indicate that courts have used the concept of purpose' and 'similar situations' in a manner which give considerable leeway to the legislature.\n\nThis approach of juicial restraint and presumption of constitutionality requires that the legislature is given the benefit of doubt about its purpose. How far a court will go in attribut-· ing a purpose which though perhaps not the most probable is at least concdvable and which would allow the classification to stand depends to a certain extent upon its imag!nanve power and its devotion to the theory of judicial restramt.\n\nAt this stage, it is necessary to sharpen the focus to understand the real grievance of the respondents.\n\nAs already indicated, their submission is that since they are similarly situated with persons contravening the provisions of the Act specified in s. 23, (1) (a), they should have been included in that class and dealt with by the Director Enforcement in the first instance so that they might also have the benefit of inquiry by him with the possible advantage of escaping with penalty even if they are found guilty of the offences. Their grievance therefore is that the classification made in s. 23 (1) is under-inclusive and is, therefore, unreasonable.\n\nOften times the courts hold that under-inclusion does not de111iy the equal protection of laws under Article 14. In strict theory, this jnvolves an abandonment of the principle that classification must include: all who are similarly situated with respect to the purpose. . This; under inclusion is .often explained by saying that the legislature is free to remedy parts of a mischief or to recognize degrees of evil and strike at the harm where it thinks it m0st acute.\n\nThe Courts have recognised the very real difficulties under which legislatures operate-difficulties arising out of both the nature of the legislative process and of the society 'which legislation attempts. perennially to re-shapeand they have refused to strike down indis- . criminately all legislation embodying classificatory inequality here\n\nunder consideratio•a .. _ Mr. Justice Holmes, in urging tolerance of under-inclusive classifications, stated that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal forc:e its extension to those whom it leaves untouched.\n\nSee Missouri K. and T. Rly. v. May(1i).\n\nWhat, then, are the fair reasons for non-extensi0n ? What should a court do when it is faced with a law making an under-inclusive classification in areas relating to economic and tax matters?\n\n'TI1ere are two main considerations to justify an under-inclusive\n\nclssification. First, administrative necessity.\n\nSerond, the legislature H might not be fully convinced tnat the particular policy which it adopts /\n\n(I) (1903) 193 U.S. 267 at p. 269.\n\n!.UPDT. LEGAL AFFAIRS v. GIRISH (Mathew,!.) 807\n\nwill be fully successful or wise.\n\nThus to demand application of the policy to all whom it might logically encompass would restrict the opportunity of a state to make experiment. These techniques would show that some sacrifice of absolute equality may be required in order that the legal system may preserve the flexibility to evolve new solutions to social and economic poblems. The gradual and piece-meal change is often regarded as desirable and legitimate th0ugh in principle it is achieved at the cost of some equality. It would seem that in fiscal and regulatory matters the court not only entertains a greater presumption of constitutionality but also places the burden on the party challenging its validity to show that it has nn reasonable basis for making the classification. This was the approach of this Court in State of Gujarat v. Ar.ibica- Mills('). The Court said:\n\n\"The piecemeal approach to a general problem permitted by under-inclusive classifications, appears justified when it is considered that legislative dealing with such prohlems is usually an experimental matter. It is impossible to tell how successful a particular appr0ach may be, what dislocations might occur, what evasions might develop, what new evils might be generated in the attempt. Administrative expedients must be forged and tested.\n\nLegislators, recognizing these factors, may wish to proceed cautiously, and courts must allpw them to do so (37 California Rev. 341).\"\n\nThe background of the amendment of s. 23 of the Act will be relevant for appreciating the reason for making the distinction between the two classes of contraventions.\n\nFrom April, 1949 to DecenJber, 1952, the Rese.rve Bank was handling all cases including those relating to unauthorized import, e'xport of gold and silver.\n\nThe Bank had an enforcement section.\n\nIn 1952, the Central Government authorised the Customs and Central Excise officers to investigate and prosecute cases if import or export of gold and silver in contravention of the provisions relating to them. In May, 1956, the Central Government took over the work relating to enforcement, i.e., the residuary work done by tO.e Reserve Bank other than those entrusted to Customs Department. . A Directorate of Enforcement was set up in May, 1956 with the , idea that there should be a specialized agency to deal with specified categories of offences.\n\nBetween April, 1949 and April 1956, when the duty of enforcement was with the Reserve Bank, the Bank had completed investigation in about 200 cases but prosecutions could be launched in respect of 66 cases only and out of these 60 cases ended in convictions.\n\nNo prosecution could be launched in respect of other cases in view of the fact that evidence legally necessary to secure conviction in a court was not forthcoming.\n\nWhen the work was transferred to the Enforcement Directorate of the Ministry\n\nof Finance, its experience was also similar.\n\nFrom May, 1956 till about 1957, the Directorate had handled 832 cases. But prosecutions could be launched only in respect of 32 cases. This w'as due to . the fact that legal evidence necessary for establishing the cases beyond\n\n(I) A.LR. 1974 S.C. 1300.\n\nSUPREME COURT R.EPOR7S [19751 3 s.c.tt\n\ndoubt in a court of law was not forthcoming partly because it was\n\niifficult to secure cooperation of the foreign collaborators in getting the incriminating documents against the suspects and partly bemuse the banks in fJreign countries were under no obligation to furnish statements of accounts niaintained by the suspects in them. .Faced with this diflicuhy, the Government had to consider other ways of enforcing the provisions of the Act more effectively. The Government, after considering the pros and cons decided t'J provide for departmental enquiry and adjudication of contravention or certain provisions of the Act by an authority specially constituted for that purpose.\n\nIn the statement of Objects and ReasJns to the Foreign ExchangG Regulation Bill, 1957, it was stated ;\n\n\" .... The most important of _these amendments is th-: one providing for departmental inquiry and adjudication of torc1gn ex.change offences by an authority constituted by Government on the Sea Customs Act.\"\n\nIn short, the reason for the amendments made in 1957 was the experience gained in the working of the Act till then. That experience was that persons contravening the provision of the Act specified in s. 23 (1) (a) invariably escaped without punishment : firstly because, successful pros•ecution of these 0ffences in many cases was not possibk for want of legal evidence; secondly because, the criminal cm1rts were not equipped with the training, expertize and experknce necessary to deal . with the intricate and ingenious methods adopt<:d by the persons contravenfog them. ..\n\nThe Government therefore thought that imposition of penalr'y by departmental adjudicati0n would prove a more effective means of checking these types of foreign-exchange offences as against the previous system of prosecution of all offences on the basis of the strict standard of pro'Jf required for criminal prosection-which proof was by and large, si::i much within the special knowledge of the offender and so much out of the reach of the department. It may be noted that after the amendment in 1957, further ljmendments of s. 23 were made in 1964 whereby sections 10, 17, I 8(A) and 18(B) were also brought within the purview of s. 23(l)(a). The introduction of these sc:ctions within s. 23(1)(a) was _the result of further experie'lce gained during the succeeding years. It was only on the basis of the experience gained by the working of the Act that a decision could be taken abot the classification of offences in respect c; which a ti •. J by a cJiurt\n\nwould be expedient and those in respect of which summary pro1; edure visualized bys. 23(1) (a) might be necessary.\n\nGenerally speaking, therefure, the basis of the classification was that in cases where there was likelihood of getting sufficiently unim peachable evidence as, for instance, in cases involving contravention of sections 14, 13(2), 15 18, etc., where the Reserve Bank of India as a specialized agency comes into the picture and be in possession of relevant materials, those cases were left to be dealt with und1:r s. 23(1A) by criminal courts.\n\nSUPDT. LEGAL AFFAIRS v. '..JIRISH (Mathew, J.) 8 0 9\n\nIn paragraph 117 of the affidavit of Shri M. L. Sharma, Under Secretary, inistry of Finance, Department of Economic Affairs, filed with te permission of this Court, the reasons why the legislature :; cb:ted th~ contravention of certain provisions of the Act for being dc:.ilt with 'by thr criminal courts in the first instance have been fully stated.\n\nAccording to that al1ldavit, broadly speaking, the classes of offences whicl1 iLvc been brought under sections 23(1) and 23A arc whfit may be tbrmccl as 'primary' offences and those brought under o. 'iJ (l A) may be termed as 'secondary' o!Iences.\n\nPrimary offences ale those which need detection and action at executive or field level by the concerned specialized agency. There is greater need f'iir taing deterrent. measures in rcspet of these offences. It is nota question of the scricmsness or gravity of the offences.\n\nBoth pr}-; nary and secondary oences may be grave or serious and involve large an'iounts.\n\nHut the difference is th'at primary offences are distin, guished bv the volume and areas of incidence and may need greater deterrence which sometimes may lie in large pecuniary penalty and sometimes in criminal punishment by w, ay of imprisonment. A delinquent who has become an insolvent may not feel any deterrent effect however large the p::cuniary penalty may be and such a cae may call for a sentence of inm; isonment.\n\nIn respect of secondary offences there are already built-in institutional checks laid down by the Reserve Bank Jr other Government agencies.\n\nAs indicated above, where contraventions <lo take place in regard toother sections, there would normally e adequate or reasonable documentary evidence, etc., and these will facilitate prosecution in courts of Jaw. -\n\nWe do not think that there is any mrit in the contention that.the classification made in s.23(1 A) is discriminatory.\n\nEven according to the respondents, it is the classification made in s.23(1 )(a) which is under inclusive and is, therefore, unreasonable. If this Court were to declare tht the classification made in s. 23 (1) (a) is under inclusive and therefore unreasonable, the result would be that contraventions of the provisions specified ins. 23(l)(a) would also fall withins. 23(1A) and would have to be dealt with by the Criminal Court-a consummation which the respondents devotedly want to avoid.\n\nWe do not think that• the High Court was right in holdin; i that s. 23(1A) was bad. We set aide the order of the igh Comt and allow the appeal. ·\n\nA;1iJt'ii! allowed.\n\nV.M.K\n\n.;.", "total_entities": 86, "entities": [{"text": "2\n\nSUPERINTENDENT AND REMEMBRANCER OF LEGAL\n\n. AFFAIRS, WEST BENGAL", "label": "PETITIONER", "start_char": 3, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL", "offset_not_found": false}}, {"text": "GIRISH KUMAR NA V ALAKHA & ORS", "label": "RESPONDENT", "start_char": 75, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "GIRISH KUMAR NA V ALAKHA & ORS", "offset_not_found": false}}, {"text": "A. N. RAY, CJ", "label": "JUDGE", "start_char": 124, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 141, "end_char": 153, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "v. R. KRISHNA IYER", "label": "JUDGE", "start_char": 155, "end_char": 173, "source": "metadata", "metadata": {"canonical_name": "V.R. 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N. Sinha", "label": "LAWYER", "start_char": 6182, "end_char": 6193, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor-General, G. L. Sanghi and Girish Chandra for the Appellant."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 6214, "end_char": 6226, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor-General, G. L. Sanghi and Girish Chandra for the Appellant."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 6231, "end_char": 6245, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor-General, G. L. Sanghi and Girish Chandra for the Appellant."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 6266, "end_char": 6275, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, Mrs. Liela Seth and U. K. Khaitan for the Respondents."}}, {"text": "Liela Seth", "label": "LAWYER", "start_char": 6282, "end_char": 6292, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, Mrs. Liela Seth and U. K. Khaitan for the Respondents."}}, {"text": "U. K. Khaitan", "label": "LAWYER", "start_char": 6297, "end_char": 6310, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, Mrs. Liela Seth and U. K. Khaitan for the Respondents."}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 6378, "end_char": 6384, "source": "ner", "metadata": {"in_sentence": "1he Judgment of the Court was delivered by ·\n\nMATHEW, J.\n\nThe respondents were tried before the Presidency Magistrate, 11th Court for' having committed offences un(ier sections 4(3), 20(3) and 22 of the Foreign Exchange Regulation Act, 1947\n\n(he<einafter called 'the A.ct') read with s. 120-B of the Indian Penal Code and s. 23 of the Act."}}, {"text": "sections 4(3), 20(3) and 22", "label": "PROVISION", "start_char": 6500, "end_char": 6527, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreign Exchange Regulation Act, 1947", "label": "STATUTE", "start_char": 6535, "end_char": 6572, "source": "regex", "metadata": {}}, {"text": "s. 120", "label": "PROVISION", "start_char": 6616, "end_char": 6622, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 6632, "end_char": 6649, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 23", "label": "PROVISION", "start_char": 6654, "end_char": 6659, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 6740, "end_char": 6762, "source": "ner", "metadata": {"in_sentence": "The Court discharged the respondents in view of the decision of the High Court of Calcutta in M/s. Serajuddin\n\n& Co. and Others v. Union of India and Others(1) holding that s.\n\n.{I) Civil Rules Nos."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 6984, "end_char": 6994, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 7281, "end_char": 7286, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 7312, "end_char": 7322, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Section 23", "label": "PROVISION", "start_char": 7345, "end_char": 7355, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Section 23", "label": "PROVISION", "start_char": 7915, "end_char": 7925, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8335, "end_char": 8339, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8341, "end_char": 8345, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 8347, "end_char": 8351, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 8374, "end_char": 8379, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 9224, "end_char": 9229, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23D", "label": "PROVISION", "start_char": 9336, "end_char": 9342, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 9469, "end_char": 9474, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 9856, "end_char": 9861, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 10032, "end_char": 10037, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 10647, "end_char": 10652, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 11303, "end_char": 11308, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 11566, "end_char": 11571, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 12117, "end_char": 12122, "source": "ner", "metadata": {"in_sentence": "That purpose is the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion in the economic and financial interest of India."}}, {"text": "s. 23", "label": "PROVISION", "start_char": 12546, "end_char": 12551, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 14063, "end_char": 14068, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 14409, "end_char": 14414, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 14573, "end_char": 14583, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Holmes", "label": "JUDGE", "start_char": 15326, "end_char": 15332, "source": "ner", "metadata": {"in_sentence": "criminately all legislation embodying classificatory inequality here\n\nunder consideratio•a .. _ Mr. Justice Holmes, in urging tolerance of under-inclusive classifications, stated that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal forc:e its extension to those whom it leaves untouched."}}, {"text": "S. 267", "label": "PROVISION", "start_char": 16083, "end_char": 16089, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 17648, "end_char": 17653, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 17988, "end_char": 18006, "source": "ner", "metadata": {"in_sentence": "In 1952, the Central Government authorised the Customs and Central Excise officers to investigate and prosecute cases if import or export of gold and silver in contravention of the provisions relating to them."}}, {"text": "Reserve Bank", "label": "ORG", "start_char": 18304, "end_char": 18316, "source": "ner", "metadata": {"in_sentence": "In May, 1956, the Central Government took over the work relating to enforcement, i.e., the residuary work done by tO.e Reserve Bank other than those entrusted to Customs Department. ."}}, {"text": "Government on the Sea Customs Act", "label": "STATUTE", "start_char": 20329, "end_char": 20362, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 23", "label": "PROVISION", "start_char": 20566, "end_char": 20571, "source": "regex", "metadata": {"linked_statute_text": "Government on the Sea Customs Act", "statute": "Government on the Sea Customs Act"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 21470, "end_char": 21475, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 10, 17", "label": "PROVISION", "start_char": 21502, "end_char": 21517, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(l)(a)", "label": "PROVISION", "start_char": 21576, "end_char": 21587, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1)(a)", "label": "PROVISION", "start_char": 21632, "end_char": 21643, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 14, 13(2), 15", "label": "PROVISION", "start_char": 22231, "end_char": 22253, "source": "regex", "metadata": {"statute": null}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 22274, "end_char": 22295, "source": "ner", "metadata": {"in_sentence": "where the Reserve Bank of India as a specialized agency comes into the picture and be in possession of relevant materials, those cases were left to be dealt with und1:r s. 23(1A) by criminal courts."}}, {"text": "s. 23(1A)", "label": "PROVISION", "start_char": 22433, "end_char": 22442, "source": "regex", "metadata": {"statute": null}}, {"text": "M. L. Sharma", "label": "OTHER_PERSON", "start_char": 22560, "end_char": 22572, "source": "ner", "metadata": {"in_sentence": "LEGAL AFFAIRS v. '..JIRISH (Mathew, J.) 8 0 9\n\nIn paragraph 117 of the affidavit of Shri M. L. Sharma, Under Secretary, inistry of Finance, Department of Economic Affairs, filed with te permission of this Court, the reasons why the legislature :; cb:ted th~ contravention of certain provisions of the Act for being dc:.ilt with 'by thr criminal courts in the first instance have been fully stated."}}, {"text": "sections 23(1) and 23A", "label": "PROVISION", "start_char": 22972, "end_char": 22994, "source": "regex", "metadata": {"statute": null}}, {"text": "s.23(1 A)", "label": "PROVISION", "start_char": 24358, "end_char": 24367, "source": "regex", "metadata": {"statute": null}}, {"text": "s.23(1 )(a)", "label": "PROVISION", "start_char": 24456, "end_char": 24467, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 24587, "end_char": 24592, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1A)", "label": "PROVISION", "start_char": 24944, "end_char": 24953, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_810_833_EN", "year": 1975, "text": "GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR\n\nUNIVERSITY OF AGRA AND ANOTHER\n\nMarch 3, 1975\n\n(K. K. MATHEW, V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]\n\nllld:~iute 14A of the Agra University-If violative of Art. 30, Constitution of\n\n1 J:e appellant is a minority College, affiliated to he respondent-Universiti•\n\nn. . ugust 1964, th1~. Co!lege management applied to the respondent for per:\n\n~111s;~1on to. tart teaclung 1!1. certain courses pf study. The respondent insisted: that C as. a cond1tion of rcco¥mt1on. of the additional subjects, the Managing Com\n\nm1te~ must be re-constituted m conformity with statute 14-A by including the Prmc1pal of the Col !ege n.d th.e senior most member of the staff in it.\n\nThe~ ilppell.ant file~ a wrnt peuuon !n the High Court challenging Statute 14-A a.~ v10Jative of J\\rt. 30, but the High Court dismissed the petition. ·\n\n(Per majority, V. R. Krishna Iyer &nd A. C. Gup':a, JJ.)\n\n'Thi? inclusion. of th7 Principal and the . senior member of the staff on thu D M.anagmg Comm1tte1!, improves the administration and does not inhibit its autonomy, and the Statute is therefore good and valid.\n\n[833A]\n\n. ( 1) Abridgement of the right under Art. 30 is as obnoxious as its annihi·\n\nlafl<?J~. but the right can be regulated in a benign manner which neither abnc; l!ICs nor exagge.rates autonom~ .but promotes better performance. To regulate. 1s not to restncl, but to fac1htate the effective exercise of the very right regul11ted.\n\n(820B-C; 8240] E\n\n(2) The Principal is an invalua, ble insider-the Management's own choiceand not an outsider. He brings into the work of the Managing Committe~\n\nthat intimate acquaintanee with educational operations and that necessary ex• pression of student-teacher aspirtions and complaints which are so essential for the minority institutions to achieve a happy marriage between individual.ity and cixcellence. An activist Principal is an asset in discharging the dutiesof the Managing Committee whic}l are inextricably inter-laced with academic func- F tions. The senior most teacher is a seasoned representative of the teachers and\n\nis, also chosen by the management itself. His role, though less striking and more unobstrusive, is also a useful input into managerial skills.\n\n[825F-H]\n\n(3) Moreover the Managing Committee is subject to the hierarchiral control of the Govering Body and General Council.\n\n[825H]\n\n(4) T~. draw a distinction between creating a managing body, and regulating the manner of its functioning to obviate mal-administration, and hold that. th.e G former is beyond the pale of legislative prescription while the latter is permiss1•\n\nble as a pieservative, is broadly sound; but, as a rigid Jogi.cal formula, It breaks down. For example. jf the law says thM a person convicted of breach of trust or that an undischarged insolvent would be disqualified to be the treasuer, it affects .the structure of the governing body, but it is indubitably a protection agJinst likely maladministration.\n\n[823E-H]\n\n(5) In the D.A.V. College case (1971) Supp. S:C.R. 688 and Sla!e. of Kera/a v. Verv Rev. Mother Provincial. ( 1971) 1 S.C.R. 734 some provmons H relatinig to the. principal of thei institution were tuck down, but the -r:al reason for striking them down was that those provmons and others deprived the mipority of its right to. manage its own institutions.\n\n[831D-832B]\n\nG~NDHI F)IZEAM COLLEGE v. AGRA UNIV. (Mathew, !.)\n\n8 1 I\n\nKera/a Educati011 Bill Case (1959) S.C.R. 995; St. Xavier's College case\n\n(1975) I. SCR,173; Rev. Fr. W. Proost case (1969) 2 S.C.R. 73 and Rt. Rev.\n\nBishop Patro's case (1970) 1 S.C.R. 172, referred to. ..\n\n(Per K. K. Mathew, J dissentinJl :\n\nThe whole temper and tone of a college do depend upon the 171 incipal and the teachers, but that does not mean that they should be members of the governing cot•ncil of a w!lege.\n\n[815F-G]\n\nTh~ rnat:er is concluded by the decisbn of this Court in Al11nedabad St.\n\nXarier's College Sdcieiy v. Stote of Gujarat (1975) 1 S.C.R. 173. This Court\n\nhld by a majority that s. 33A( 1) (a) of the Gujarat UniversitY Act, 1949, was violative of Art. 30(1) because, that provision required the inclusion, in the governing body of the College, of persons whom the religious minority did not want to include. When the article says that a religious or linguisti.:: mi.D.ority has the right to administer educational institutions of its choice, it means that the light 10 carry on the administration of the institution must be left to the managing body consisting of' Pe.rsons in whom the religious or liitguistiC minority has faith and confidence. The minority, community has the exclusive right too\n\nvest the administration of the College in a body of its own choice and any compulsion from an outside authority to include any other person in that body is an abridgement of its fundamental right to administer the educational institution. The determination of the composition of the body to administer the educational institution established by a religious minority must be left to the minority as that is the core of the right to administer, though regulations to prevent mal-administration by that oody are permissible.\n\nBut, such regulations can only relate to the manner of administration after the body which is to adminiqer has come into being.\n\n[8120; 815B-D] ·\n\nState of Kera/a /~<Mother Provincial [1971] 1 S.C.R. 734; W. Proo.it v.\n\nBifwr [1969] 2 SCR 73 and Rer. Bishop S. K. Patro v. Bihar [1969] 1 SCR\n\n863. referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No~ 1611 of 1969.\n\nAppeal by special leave from the Judgment and Order dated the 125th July, 1967 of the Allahabad High Court in Special Appeal No. ;)65 of 1967.\n\nFrank Anthony, K. L. Hathi and P. C. Kapur, for the appellant..\n\nSantosh Chatterjee and G. S. Chatterjee, for the respondents.\n\n' The Judgment of the Court was delivered b, y Krish11<t iyer, J. K. K.\n\nMathew, J. gave a dissenting opinion.\n\nMATHEW, J.\n\nThe question is whether Statut~ 14A framed by the University of Agra abridges the fundamental right guaranteed under Article 30(1) of the Constitution of the Muslim community of Saharanpur, a religious minority, to administer the Gandhi Faizeam College, Saharanpur, established by it.\n\nIn August; -1964,, an application was made on behalf of the college management to the University for permission to start teaching in courses of study including Sociology, Sanskrit, Arabic, Military Studies, Drawing and Painting.· The University insisted that as condition .for recognition of these additional subjects as courses of study, the managing committee of the college must be reconstituted in conformity with\n\n.Statute 14A by including the Principal and the senior-most member of\n\ntJic :>taff in it.\n\nStatute 14A provides :\n\n.; 14-A. E:ich college, already affiliated or when ; iffil iatcd, which is not maintained. cxclmively by Government mus!\n\nl>e under the Managemcm of a rcg:JJbr constitued Governing Hody .(which term includes Man~·.r!ng Committee) on which !he staff of the college shall be rcptcenlcd l'Y the Princip~! of the College and at lcat one rtprcsc:; tali\"v~ of the teachers 1..11 l lie college to be appointed by rotation in order of seniority iJctcrmined by kngth of St;'.rvicc in the college, who shall hold office for one academic year.\" '\n\nIn the writ petition filed before the High Court, the app~Jlant c1m-- u:11ucd that Statute 14 A ahrid, gcd its fundamental right under Article .ltl( I).\n\nBut the High Court negatived the con:ention holding that even if Statute l '1 A is implemented by the religi.ou;; m!nority, the right of the minority to administer the educational insl!tution woulJ not be take11 away w destroyed and dismissed the writ petition.\n\nt should have thought that the matter was concluded by th~ .decishm , of this Court in Ahmedabad St. Xavier's College Soriety v.\n\nSzate of Guiarat(l). Section 33A(l)(a) of the Gujarat University Act, 19~9, which fell ior consideration m that case, amcng other matters, read :\n\n\"33A (I) Every college (other than a Government college or a college maintained by the Government) affiliated before\n\ntllr. commencemrnt of the Gujarat University (Amendment) Act. 1972 {hcreina!'tcr in this section referred to as 'such commencement')-\n\nt.<U , fflafl be under the management of a gavcrning body\n\nwhich sh2:11 include amongst its members the Principal of the College, a representative of the University nominated by the Vice Chancellor, and three repr::- sentatives of the teachers of the college and at least one representative each of the members of the non-teach-. ing staff and the students of the college, to be elected respectively from amongst such teachers, members of the non-teaching staff and students.\"\n\nThis provision was challenged in that case as violating the fundamental\n\nright under Article 30( I) of the minority community in question there.\n\nThis Court held by a majority that the provision was bad as it offended\n\ntht! fundamental right of the religious minority under Article 30 (I) to G a\\Jminister its educational institution. The reason was that the provision required the inclusion, in the governing body of the college, of per- sons whom the religious minority did not want to include. When Article 30(1) speaks that a religious or linguistic minority has the right to administer educational institutions of its choice, it means that the rlg; ht m carry on the administration of the institution must be left to the managing body consisting of persons in whom the religious or linguistic H mioority has faith and confidence..\n\nI ). C.C. 717.\n\nGANDHI FAJZEAM COLLEGE v. AGRA UNIV. (Mathew~ !.) 8 13;\n\nThe learned Chief Justice, speaking foc himself and 1'alekar, J., aiter referring to the provisions of s. 3JA(l) (a) said m that case that\n\nrnc right to administer is the right to conduct and manage the affairs of the institution and that this right is exercised \"through a body of per- ; uns i11 whom the founders of the instil ution :iave faith and confidence and who have full autonomy in that sphere\".\n\nHe further said that the nghr to administer is subject to permissible regulatory measures and'\n\nthat pnnissible regulatory measures are those which do not restrict the. nght ot adnumstratJon but facilitate it and ensure better and more effective exercise of the right for the benefit of the institution and through the instrumentality of the management of the institution and w1tl1out displacing the management.\n\nHe was of the view that if the udmilllsiration has to be improved, it should be done through the agency vr thc iustrnmcntality of the cxis1ing management and not by displac• ing i1.\n\nThe learned Chief Justice further observed that autonomy ia administration means right toadminister effectively and fo manage and conduct the affairs of the institutions, that the right of administration means day to day administration and that the choice in the personnel of\n\nmanagement is a part of th~ administration.\n\nHe concluded by saying :\n\n\"The provisions contained in Section 33A(l) (a) of the Act have the effect of displacing the management and entrusting it to a different agency.\n\nThe autonomy in administration is lost.\n\nNew elements in the shape of representatives of different types are brought in.\n\nThe calm waters of an institution will not only be disturbed but also mixed.\n\nThese previsions in Section 33A(l) (a) cannot therefore apply to minority institutions.\"\n\nJaganmohan Reddy. J. speaking for himself and Alagiriswami, J .. agreed with the view expressed by. the learned Chief Justice on the ques-· tion of the validit~_of s. 33A(l) (a) in its application to lbe minority.\n\nKhanna, J. in his concurring judgment said that the argument that a law or regulation could not be deemed unreasonable unless it was totally destructive of the right of the minority to administer educationaf institi1tions was fallacious and wa5 negatived by this Court by its previous decisions and that a law which ·\n\n'\" .... interferes with the minorities choice of a governing body or management council would be violative of the,-/ . right guaranteed by Article 30 (1). This view has been cdnsistently take'! by this Court in the cases of Rt. Rev. S. K,,\n\nPatro, Mother Provincial and D. A. V. College (affiliated to the Guru Nanak Umversity) (supra).\n\n\"Section 33-A which provides for a new governing body for the management of the college and also for selection committees as well as the constitution thereof would consequently have to be quashed so far as the minority educational institutions are concerned because of the contravention of Article 30(1) .\"\n\nOn behalf of Chandrachud, J. and myself, I said :\n\n\"The requirement that the college should have a governing boay which shall include persons other than those who are members of the governing body of the Society of Jesus would take away the management of the college from the governing body constituted by the Society of Jesus and vest it in a different body. The right to administer the educational institution established by a religious minority is vested in it. It is in the governing body of the society of Jes us that the religious minority which established the college has vested rhe right to administer the institution and that body alorie has the right to administer the same.\n\nThe requirement that the\n\nollege should have a governing body including persons -other\n\nthan those who constitute the governing body of the Society\n\nlt Jesus has the effect of divesting that body of its exdusive !ight to manage the educational institution. That it is desirable in the opinion of the legislature to associate the Principal .of the college or-the other persons referred to ins. 33A(l) (a)\n\nin the management of the college is not a relevant considera- 1ion. The question is whether the provision has the effect <>f divesting the governing body as constituted by the religious minority of its exclusive right to administer the institution.\n\nUnder the guise of preventing maladministration, the right of rhe governing body of the college constituted by the religious minority to administer the institution cannot be taken away.\"\n\nIn State of Kerala v. Mother Provincial(!) this Court said that \"Administration means management of the affairs of the institution, .that the management must be free of control so that the founders or\n\ntheir nomiBees can mould the institution according to their way of thmking and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served and that no part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.\" 'Sec:tions 48 and 49 of the Kerala University Act, 1969 which came up for consideration in that. case respectively dealt witp the governing body for private colleges not under corporate management and the managing council for private colleges under corporate management. Under the provisions of these sections, the educational agency or the corporate management was to establish a governing body or a managing council respectively.\n\nThe sections provided for the composition of the two bodies. It was held that the sections had the effect of abridging the right to ad111inister the educational institution of the religious minority in question there.\n\nOne of the grounds given in the judgment for upholding the decision of the High Court striking down the sections is that these bodies had a legal personality distinct from governing bodies set up by the educational agency or the corporate management and that they were not answerable to the founders in the matter of administration .of the educational institution. The Court said that a law which\n\n\nGANDHI FAIZEAM COLLEGE v. AGRA UNIV. (Mathew, J.) 8 i 5\n\ninterferes with the composition of the governing body or the managing council as constituted by the religious or linguistic minority is arr abridgment of the right of the religious minorities to administer the educational institution established by it [see also W. Proost v. Bihar( 1) and Rev. Bishop S. K. Parra v. Bihar(\") ]. .\n\nThe determination of the .composition of the body to l!_dminister the educational institution established by a religious minority must be left to the minority as that is the core of the right to administer.\n\nRegulations to prevent maladministration by that body are permissible.\n\nAs the right to determiae the composition of the body which will administer the educational institution is the very essence of the right to administer guaranteed to the religious or linguistic minority under Artilce 30(1), any interference in that area by an outside authority cannot be anythi•.ig but an •abridgment of that right.\n\nThe religious or linguistic minority must be given the freedom to constitute the agency through which it proposes to administer the educational insti(ution established by it as that is what Article 30 (1) guarantees. The right to shape its creation is one thing : the right to regulate the mam1er in which it would function after it has come into being is another. Regulations are permissible to prevent maladministration but they can only relate to the manner of admh1istration after the body which is to administer has come into being.\n\nThe .provisions of Statute 14A are in pari materia with those of s.33A(l) (a) of the Act which fell for consideration in Ahmedabad St. Xavier's College case (supra) except that only the principal and the senior-most member of the staff alone are required to be included in the ma1.1aging committee of the college in question here.\n\nBttt, in principle, that makes no difference. ihe principle, as I said, is tlfat the minority community has the exclusive right to vest the administr<}tiOO. of the college in a body of its own choice, and any compulsion from an outside authority to include any other perso.1 in that hody is lln abridgment of its fundamental right to administer the educationa1 institution. ·\n\nIt is, no doubt, true that it is upon the principal and the teac.hers that the whole temper and the tone of a college depend.\n\nBut ttiat does ;1ot mean that the. principal a9d the teachers should be members\n\nof the governing council of a college .. It was only in the co!frext:o( the right of the religious or linguistic minority to appoint the pripeipal and teachers of the college established by it that we said h1 Ahmediib, od- St. Xavier's, College case (supra)\n\n\"It.is upon the principal and tachers of a college that the tone . and temper of an. educational institution depend.\n\nOn them would depend its reputation, the maintenance of discipJit.1e and its efficiency in teaching.\n\nThe right to Choose the principal and. to have the teaching c0',1ducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important\n\n\n(2) (1969] 1 s.c.c. 863.\n\nA facet of the right to administer ari educational/ institution.\n\nW ,' can perceive \"10 reason why a representative; of the Univ..:rsity nominated by the Vice Chancellor shou\\tl be on the S:.kction Committee for recruiting the Principal or for the\n\nin.<.iscnce of head of the department besides the ., representative of lhc University being on the Selection Committee for 1Tcruiting the members of the teaching $taff. So long as the pwons chosen have the qualifications prescribed by the University. the choice must be left to the management.\n\nThat is part of the fundamental right of the minorities to administer the educational institution est•ablished by them.\"\n\nWhile affirming tlic correctness of the observatici.1 in the context in which it was made, I think it necessary to repudiate its relevance and application here.\n\nI would, therefore, allow the appeal without any order as to costs. c\n\nKRISHNA IYER, J.-Our essay in this appeal is to interpret and apply Art. 30 of the Constitution, illumined by the ratio of the recent D leading case on the constitutioaal rights of minorities vis a i>is educational institutions where a Bench of 11 Judges handed down six opinions on the thorny issue.\n\nAs we proceed to Judgment, we are reminded of two famous American observations. Chief Justice Marshall, while deciding the celebrated McCol/och v.\n\nMaryland Case(!) made the pregnant remark : 'We must never forget that it is the constitution we are expounding'.\n\nGovernor Hughes, soon te E ascend the lJ .S. Supreme Court, said : 'We oare under a Co.1stitution, but the Constitution is what the Judges say it is.' Reverentially guided and bound by great precedents but mindful of the luminous texts 1md goals of he Constitution itself, we have to attempt the task.\n\nThe l;!cts of the present case are virtually admitted, the precedent that binds us is of fresh vintage but the legal test when applied to F this concrete case-situation is fine, if nqt baffling.\n\nOf course, the only area for judicial exploration is decoct the rule from the ruling and fit it to the admitted facts.\n\nThe appellant is a registered society formed by the members of\n\nth~ Muslim community at .Shahjehanpur. Indubitably, the community ranks as minority in the country and the educational institution run G by it has been found to be what may loosely be called a 'minority institution,' within the constitutional compass of Art 30. The ear:lier history of the institution need not detain us and a rapid glance at its evolution is enough. The A. V. Middle School was the off-spring of the effort of the Muslim. minority resident in Shahjehanpur Di:; trict.\n\nIi: later bec:ame a High School and afterwards attained the status of •an Intermediate College.\n\nEven~ H tually it blossomed into a degree college affiliated to\n\n(I) 4 Wheaton 316, 407.\n\nGANO, ll FAIZEAM COLLEGE v. AGRA UNN. (Krishna /y!.'I', J.) 8 Ii\n\nthe University of Agra. lo 1948, on the assasination of the Father of the Nation, this college was commemoratively renamed as Gandhi Faiz-e-am College. In August 1964, an applieation was made on behalf of the college management to the University for permission to start teaching in courses of study including Sociology, Sanskrit, Arabic, military studies, ch'awing a~1d painting.\n\nThe University entertained the thought that a new organisational dL5cipline mllst_ be brought into the institution and insisted, as a condition of recognitlbn of these additional subjects as course of study, oh certain mutationN~- the admr.1istrative body of the college.\n\nThe bone of contention before us, as was before the High Court, is th•at this prescription by the University, in tune:with Statute 14-A framed by it, is an invasion of the fundamental ri&ht guaranteed to the minority comm1p1ity under Art. 30 of the Constltut1on of India.\n\nThe High Court has negatived the plea of the management a!ild the appe'al issues from that decision.\n\nWhat i~ the core of the restriction clamped down by Statute 14-A '!\n\nWhat is the ca,1sciencc and tongue of Art. 30? If the former is incongruous with the latter, it withers as void; otherwise, it prevails and binds.\n\nThat is the crux of the controversy.\n\nThe minority college is administered by a three-tier body organised h1tra-murally by the Society. No outsider has entered the precincts of management, which has all along remained with the members only.\n\nThe General Council with plenary powers, the Governing body more circumscribed yet effective as policy-maker and the Managing Committee, the day-to-day administrative sub-agency-these arc the organs vested with controlling power, under the relevant rules of the Society.\n\nThe essential point is that the Society is that the Society is autonomous and its organs administer the i•astitution.\n\nThe University directive, backed by Statute 14~A. it is contended, forces two persons on the area of administration.\n\nThis is argued to be a serious erosion of the great right guaranteed to cultural and rcli~ gious minorities. Statute 14-A, may at the outset, be reproduced :\n\n\"14-A. Each college, already affiliated or when affiliated, which is not maintained exclusively by Government must be under the Management of a regular constituted Governing body (which term includes Managing Committee) on which the staff of the college shall be represented by the Principal of the college and at least one represent•ative of the teachers of the college to be .appointed by rotation in :order of seniority determined by length of service in the college, who shall hold .office for one academic year.\" ·\n\nEmboldened by this provision, the Registrar of the Agra University has made the impugned demand which ru'as thus :\n\n6-LS64SCI/7S\n\nAgra U11irersi1y\n\nFrom\n\nSri R. N. Pathak, Asst. Registrar (Affiliation), Agra University. Agra.\n\nThe Principal, G. F. College, Shahjahanpur.\n\n[ 19751 3 ~:.C.R..\n\nNo. Aftl/7965 Sir,\n\nDated Agra, 24 Apr. 1965 c\n\nWith rcforcncc to your application dated December I , 1964 re~ cognition in c:ertain subjects upto the B. A. standard, I am to inform you that the Executive Council at its meeting held on April 10, 1965\n\nafter considering the report of the Inspectors on the inspection ol' your college and the recommendations of the relevant committee thereon decided that recognition applied for upto the B. A. Standard be not granted to the college unless provision is made in the constitution for representation: ef the,. Principal irnd one Head of Department to be chosen in order of seniority every year on the Managing Committee of the college and other condit'ions have been fulfilled.\n\nI am therefore to request you to take immediate steps to implement the afo:rcsai<l decision of the Council and let me know that you have done so. On receipt of your reply th.c inattcr will be further considered.\n\nYours faithfully.\n\nSd/- R. N. F'athak Asst. Registrar (Affi)\" Maybe, we may as welt' mention the stand taken by the Management of the College in the cqrrespondence with the Registrar.\n\nTn one reply it \\Vas :represcptcd : ·\n\n\"From\n\nThe Prcsidcnt1, Managfug Committee, G.F. Collcg~ Shahjahanpur.\n\nThe Deputy Registrar (Affl), Agra Univcrsity.\n\nNo .. 660 Dated, Shahjaha.npur,\n\nNov. 22, 1965\n\nGANfJllI FA!ZEAM COLLEGE v. AGRA UNIV, (Krislt11a Iyer, J.) 8 l 9\n\nSir.\n\nWith reference to your letter no. Afll/1336, dated August 31, 1965 and subsequent reminder dated October 20, 1965, I have the honour to s:.iy that we arc very grateful to the Univers, ity for its acceptance of the minority status of our college.\n\nWhile mentioning that the University has no legal power to interfere iu our right to administer the institution, we are willing, to make the inclusion of the Principal and one Head of Department by rotation obligatory in the Governing Body as proposed ~.1 the written legal opinion of our counsel, (relevant extract of which has been forwarded to us along with your letter under reference), simply for the reason that we arc very anxious to keep up smooth and cordial relations with the University.\n\nThe learned Vice-Chancellor is, therefore, requested to grant us affiliation in all the new subjects in respect of which our applications arc pending at a very early date, to en.able us to make the necessary pre.parations, which are likely to take sufficient time, to start the classes in those subjects from the beginning of the next session.\n\nD We undertake to amend our constitution suitably to give the proposal a pmctical shape within three months after the receipt of your kind reply.\n\nAn early disposal of this letter is solicitecl.\n\nYours faithfully, Sd/-........ '.·.\n\nPresident, Managing Committee, G. F. College~\n\nShahjahanpur.\" This concession was retracted allegedly because the University took 110 Mcps accepting it and a writ petition was filed ch•allenging the\n\nvirs of the Statute 14-A and legality of the directive.\n\nIf rilliancc had been placed by the University, on this concession of the Manageme.nt as amounting to a waiver of the fuildamental right. thereby making short shrift of the dispute, it would have been difficult for us to accede to the plea. Indeed, wisely no plea of waiver of the Fundamental right l1as been put forward and perhaps none can be, in this branch of constitutional jwisprudence. We are therefore concerned with discerning the parameter o[ 'minority' right in Art. 30.\n\nA stream of Supreme Court rulings commencing with the Kera/iJ Education Bill Case (') and climaxed by St. Xavier's College Case( 2) has settled the law for the present, and the last refers to the prccedcntial past.\n\nWe will confine ourselves largely to the currently final pronouncement; but where did the Court draw. the delicate line between unconstitutional conditions and constitutional-re1?U!ations ?\n\nA certain thread of una.nimi~ exists among the manv opinions and that common ground-not ind1v, idual deviations and differences-must be the basis of our judgment. Right at the beginning we must observe -·-w--•\n\n(I) [l9S9] S.C.R. 995. i\n\n(2) A.l.R: {1974] S.C. 1389.\n\nthat the whole (:dificc of case law on Art. 30 has been bed-rocked on the Kera/a Ed11catio11 Bill Case (upra).\n\nThe greaccst common measure of agreement among the various opinions in St. Xm1ier's College case (sup.ra) will have to be ascr taincd.\n\nRay, CJ., following Das CJ. (m the firs~ Kerala Cas.:·), has taken middle view, if one may say so with great respect. 'Hands-off Administration altogether' is a !<ill call today; but 'hand-culI managements into uniformity is also not the correct rule. A benignantly regulaied liberty which neither abridges nor exaggerates autonomy but promotes bctll'r pi:rformance is the right constmction of the constitutional provision.\n\nSuch an approach cnabks the fundamental right meaningfully to fulfil its tryst with the minorities' destiny in a pluralist polity.\n\nThat is the authentic voice of Indian democracy.\n\nTo regulate, be it noted, is not to restrict. but to facilitate effective exercise of the very right.\n\nThe constitutional i:state of the minorities should not be encroached upon, neither allowed to be neglected 'Jor maladministcrcd.. This quintcsence of the decision may now be aptly hornc out by pertinent excerpts from the various judgments.\n\n''The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary clcctricism iu the aclministration of the institution\" (at P. 1398) \"Regulations which will serve the interests of the students, regulalilins which will serve the interest of the teachers arc of pare.mount importance in good administration. Regulations in the interest of efficiency 0£ teachers, discipline and fairness in administration arc necessary for preserving harmony among aflitiated institutions.\" (at p. 1398) \"Autonomy in administration means right to admi11ister effectively and to\n\nmanage and . conduct the affairs of the institutions ..... .\n\nThe University wiJJ always have a right to see that .ther~ is fll) mal .. administration.\n\nIf there is mal-administration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minQrity institutions arc engaged in activities which arc not conducive to the interest of the minority or to the requirements of the tca.:hers and the students.\" (at p. 1399).\n\nThe 'iuncr voice' of the whole pronouncement should not be muffled while reading the particular result in the case and that it happilv expressed thus : \"The right conferred 011 the religious and Jinouis-tic minorities to administer educational institutions of.\n\n0 their d1oicc is not an absolute right.\n\nThis right is not free from reiiulation.\n\nJust as regulatory measures are necessary for maintaining the cducatior.i; ll character and contcat of minoritv institution!: similarly regulatory measures are nccesmry fo;\n\nGA:\\DHJ FAIZEAM COLLEGE r. AGRA UNIV. (Krishna Iyer,/,) 8 ll I\n\nensuring orderly, efficient and sound administration.\n\nDast C.J., in the Kera/a Educatio11 Bill Case (supra) summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to maladminister.\" (at p. 1396) Mr. Justice Jaganmohan Reddy summed up the law at the threshold :\n\n\"The right of a linguistic or religious minority to administer educational institutions of their choice, though couched in absolute terms had been held by this Court to be subject to regulatory measures which the State might impose for furth_ering the excellence of the standards of education.\" (at p. 1401)\n\nMr. Justice Khanna stressed what is s-vmetimes ill-remembered :\n\n\"The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give the m_inorities a sense of security and a feeling of confidence.\" ( af p. 1415).\n\nThe learned Judge, after visualising.the abundant catholicity of the guarantee in favour of minorities in our multi-cultural country, insisted that regulations for the welfare of the institution were not constitutional anathema :\n\n\"It is, in my opinion, permissible to make regulations fur ensuring the regular payment of salaries before a particular date of the month. Regulations may well provide that the funds of the institution should be spent for the purposes of OO!.lcation or for the betterment of the institution and not for extraneous purposes.\" (at p. 1422)\n\nAnd, after itemising, illustratively other permissible constraints, observed:\n\n\"A regulation which is designed to prevent mal-ad- . ministration of an educational institution cannot be said to offend clause (1) of Article 30. At the same time it has to be ensued that under the power of making reguations nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice.\" (at p. 1422)\n\n\"As observed by this Court in the case of Rev. Sidhrajbhai Sabhai ( 1963 3 SCR 837), regulations which may ]awfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority institution effective as an educational institution. Such regulation must satisfy a dual test-:-the test of reasonableness, and the test that it is regulative of the\n\neducational character c4 the institution and is conduive .to\n\nmakin~ the institution an effective vehicle of education for the minority community or other persons who resort to it.\"\n\n(at p. 1422:) bi the context of affiliation of rollegcs, the learned Judge concrcti scd the law thus :\n\n\"The said authority can always prescribe regulations and insist that they should be .complied with before it would grant affiliation or recognition to an educational institution.\n\nTo deny the p0wer of making regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence.\" (at p. 1423) \"It would be wrong to assume that an unrestricted right a> in Article 30 postulates absence of regulations. Regulations can be prescribed in spite of the unrestricted nature of the right.'' (at p. 1423)\n\nJn short, the view which appealed to Khanna J., shows that the law, to be constitutional, should not impair the minorities' right but may be promotional in the sense of making the purpose ol the institution more productive.\n\nOne \\Jf us, sitting on that Bench (Mr. Justice Mathew) has illumined the amplitude of the right under Art. 30 but has not dissent•::d from the validity Of putting on that right regulatory harness. In a pithy statement, this point has been made by the learned Judge : 'No right, however absolute, can be free from regulation' (at p. 1441).\n\nThe spiritual seed of this thought is found in the Holmesian obse'Tvation extracted by him :\n\n\"All rights tend t\\J declare themselves absolute to their logical extreme.\n\nY ct all in fact are limited by the neighhourhOod of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point 1s reached.\" (at p. 1441) .\n\n• With specific rcforence to 'affiliation' these guidelines fell from tlte learned Judge : ·\n\n\"Recognition or. affiliation creates an interest in the universitv to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established :and administered by a religious or linguistic minority can claim recognition or amliation without submitting to those regulations. That is the price of reco1nition or affiliation .. . . In other words rcoognition or affiliation is a facility which the university grants to an educational institution.\" (at p. 1442) Justices Beg and Dwivcdi have stretched the regulatory power further than the majority, holding that it is an illusion for a minority\n\nGANDHI FAIZEA:M COLLEGE l'. AGRA UNIV. (Krishna Iyer, J.) 8 23\n\nA to claim absolute immunity. The thrust of the case is that real rcgu- . lations arc desirable, necessary and constitutional but, when they operate on the 'administration' part of the right, must be confined to chiselling into shape, not cutting down out of shape, the individual personality of the minority.\n\nThe discussion throws us back to a closer study of Statute 14-A B to see if it cuts into the flesh of the Managements' . right or merely tones up its health and habits.\n\nThe two requirements the University asks fur arc that the Managing Body (whatever its name) must take in (a) the Principal of the College; (b) its seniormost teacher. Is this desideratum dismissible as biting into the autonomy of management or tenable as ensuring the excellence of the institution without injuring the essence of the right ? On a careful reflection and conscious C ot the constitutional dilemma, we are inclined to the view that this case falls on the valid side of the delicate line. -Regulation which restricts is bad; but regulation which facilitates is good.\n\nWhere does this fine distinction lie? No rigid formula is possible but a flexible test is feasible.\n\nWhere the object and effect is to improve the tom: and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure D the governing body but to better its perfom1ance by a Q1arginal catalytic induction, where no external authority's fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous Management alone is asked for, the provision is saluc tary and saved, bcil\\g not a diktat eroding the freedom of the free- . doru.\n\nE A dichotomy is sometimes drawn in this branch of juridical dis- cussion. /More plainly, the difference drawn is between creating a Managing body by .. the minority community and regulation of the manner of its functioning to obviate maladministratio.n. The former i§ ordinarily beyond the pale of legislative prescription while the latter is permissible as a preservative. Broadly, this is sound, but as a rigid F logical follllula, it breaks down.\n\nFor, some regulations may impinge marginally upon the romposition of the administrative organ though manifestly meant to save the institution from mismanagement.\n\nJust one or two examples. If the Jaw says that a person sentenced for a prescribed period of imprisonment for breach of trust or an undischarged insolvent would be disqualified to. be the treasurer or one who has been removed from public office for moral delinquency or G has been punished for outraging the religious feelings of the very minority under s.295-A, I.P.C; should not hold office on the governing body, such a relation affects the structure of the _governing body but is indubitably a protection against likely maladministration.\n\nLikewise, supposing the management has to award scholarships to students of merit, decide on courses of study to be undertaken, regulate techer-students comitv and discipline, who but the Principal n chosen by the minority itself will be better on the Committee to l!Uid.:\n\nit in these vital affairs. These fine but real lines cannot be obfuscated bv excessive emphasis on the character of the organ as against its method of working.\n\nMen matter in extm11c situations.\n\nSUPREMB'COURT REPORTS (19751 3 s.c.R. ·\n\nThis perspective helps us discern the points made by either side.\n\nThe pith of Shri Fmnk Anthony's submission is that the command of the University to include even the Principal, the bead appointed by that very Management to be in plenary charge of the education imparted in the college, is an &was ion. of the minority right. ·· Freedom from any form of external press1:1re, however well-meant and bcnefidcnt, is the soul of the right to administer, if one may pamphrase his contention. This is simply countered by the words of Khanna J :\n\n\"It would be wrong to assume that an unrestricted right as i•.i Article 30 postulates absence of regulations. Regulations . can be prescribed in spirt of the unrestricted nature of the\n\nright.\" (at p. 1423)\n\nAll th~ other learned Judges who are party to St. Xavier (supra) and all th:: earlier rulings have negatived the untouchable absoluteness urged by the managements.\n\nEqually fallacious is the simplistic submission which appears. to have appealed to the High Court th-at Art. 30 is disturbed only when the right is destroyed, not when it is demaged. St. Xavier (supra) has dispelled doubts in this behalf: Abridgement of the constitutional right is as obnoxious as annihilatjon.\n\nTo cripple is to kill.\n\nSteering clear of these unconstitutional shoals let us again feel our way through the controversy.\n\nFirst, the princip>al. In the eloquent words of one of the> learned Judges (Mathew, J.) in St. Xavier's case\n\n(supra) :\n\n\"It is upon the principal and teachers of a college that the tone and temper of an educational i11stitution depend.\n\nOn them would depend its reputation, the maintenance of discipline IUld its efficiency in teaching.\n\nThe right to choose the princqml and to have the teaching conducted by teachers appointed by the mai.1agement after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution.\" (emphasis ours)\n\nThis strategic appointee must be chosen by the management with :>edulos care and his choice should not be 'externalised' by regulations.\n\nAll right. But for the excellent reason that the principal is the vital, vibra!at and luscent presence within the educational campus, no administration can bring out its best in the service of the institution sans the principal. To alienate him is to self-inflict wounds; to associiate him is to integrate the academic head into the administrative body for the obvious betterment of managerial insight and proficiei,1cy.\n\nis no stranl!er to the college but the commander appointed by the m'anagement itself. A regulation which requires his inclusion in the H\n\n~ :t\n\nGovcminl( Council imposes no external element nor exposes the college to the espionag•~ of one with dual loyalties.\n\nHis membership on the ,_ floatd is a blessing in many ways and not a curse in any conceivable\n\nc;\\SDH! FAiZEAM COLLEGE r., AGRA UNIV. (Krish11a Tyer,/.) 8 25\n\nway. After all the functions of the Managing Committee, as set down, in bye-law 15, are :\n\n\"15. . The Managing Committee shall-\n\n( a) .Dispose of applications for, scholarships and concession etc., received by the Secretary or any other person.\n\n(b) Check and pass account kept by the treasurer, Secretary or Principal.\n\n(c) Have powers to appoint, suspend, remove or otherwise punish or dismiss any servant of the school or college or give them promotioi,1 or make reductions in their salaries and , grant them lcavc, in accordance with the Agra University rules as the c:ase may be.\n\nProvided that in c-ase of dismissal or removal or fine exceeding one month's pay or suspension for a period exceeding cine month, an appeal shall lie to the Governing Body whose decision shall be final.\n\nThe period for fillag the appeal shall be 15 days from the receipt of the order again~! which the appeal is to be preferred. .\n\n(d) See that the property of the institution, whether movable or immovable, is , properly managed and cpl.\n\n(e) Gcneralty supervise the work of all the Office bearers.\n\n(f) To pass the annual budget, annual report and dispose of the audit note.\n\n(g) To sanction expenditure upto Rs. 25,00P/- in the course of one year, irrespective of the budget provisiQl,1s.\n\n(h) To acquire by purchase, mortgage or otherwise immoveable or movable property for the institution and to sell or otherwise dispose of movable p_roperty.\"\n\nn acivist pincipal is an. asset in di.schargin$ these duties. wlich: arc mextncably mterlaced with academic functions.\n\nThe 1mnc1pal is an invaluable insider-the Management's own choice-not an outsider answerable to the Vice-Chancellor. He brings into the work of the Managing Committee that intimate acquaintance with educational operations and that necessary expression of studei,1t-te-acher aspirations and complaints which are so essential for the minority institution to achieve a happy marriage between individuality and excellence. , And , the role of the seniormost teacher, less striking maybe and more un• obstrusive, is a useful ffiput into managerial skills, representing_ as be does the teachers and being only a seasoned mir.ion chosen oy the management itself.\n\nAfter all, two creatures of the Society on a 16member Managing Committee can bring light, not tilt scales.\n\nMoreover, the Managing Committee .itself is' subject to the hierarchical control of the Governi'ag Body, and the General Councit\n\nW..:, see no force in the objection to the two innocuou~ insider> , being seated on the Managing Committe<\",\n\n, A The various decisions .of this Court where legislative fetters have . been struck down are cases in contrast. There the rules maim;· here. they improve.\n\nThere the input upsets the baJ~.1cc; here the addition is minimal and strengthens from within.\n\nThere, arc external mandates to approve; here an internal principal is proposed to be dovetailed to make administration more proficient without injury to independent .action. In the Kera/a University Act Case(') the vice of ss. 48 and\n\n~9. summarised by R.ay C.J., in St. Xavier {supra) was stated thus\n\n \"Those sections were found by this Court to have effect of displacing the administration of the college and giving it to a distinct corporate body which was in no way answerable to the institution. The minority community was found to ·\n\nlose the right to adrni.1ister the institution it founded. The c governing body contemplated in those sections was to administer the colleges in accordance with the provisions of the Act, statutes, ordinances, regulations, bye-Jaws and orders made thereunder. The powers and functions of the governing body, the removal of the members and the procedure to be followed by it were all to be prescribed by the statutes.\n\nThese provisions amounted to vesting the management and t> administration of the institution in the hands of bodies with mandates from the University.'.' {at p, 1397)\n\n\\ ' Likewise in Rev. Fr. IV. Proost(3 ) the mischief w3s summed up fa the St. Xal'ier Case by Ray C.J., in these words :\n\n\"This Court in Rev. Fr. IV. Proost Case(') held that i: s.48-A of the Bihar Universities Act which came into force from 1st March 1962, completely took away the autonomy of the governing. body of St. Xavier's College established by the Jesuits of Ranchi. Section 48-A of the said Act provided inter alia that appointments, dismissals, removals, termination of service by the governing body of the College were to be made .on the recommendation of the University Service Com- F mission and subject to the approval of the University. There were other provisions in that section, viz., that the Commission would recomme.1d to the governing body names of persons in 'order of preference and in no case could the governing body appoint a person who was not' recommended by the University Service Commission.\" {at p. 1397) .\n\nAgain, the same judgment pinpoints in these brief words, the uncousti- 1utional sting in the Bihar Case viz. Rt. Rev Bishop Patro(•) :\n\n. \"In Rt. Rev. Bishop S. K. Patro v. State of Bi/iar(•) the State of Bihar requested the Church Missionary Society School, Bhagalpur to constitute a managing committee of the\n\n(I) Stalpf Kera/av. Ver.11 Rei. JfrJther Prorbrcia/; [1971] .J s.C.R. 734.\n\n-(2) (t959J 2 S.C.R. 73.\n\nO) [1970] t S.C.R. 11!.\n\nc; A,.DHI FAIZE.•M COLLEGE I'. AGRA UNIV. (Krishna Tyer, J.) 827\n\nschool in accordancc with an order of the State.\n\nThis Court held that the State authorities could not require the school to constitute a managing committee in accordance with thdr order.\" (at p. 1397)\n\nThe G11jarat Case of St, Xavier (supra) is a study. in contrast, as stated earlier. Sections 40 and 41 ands. 38 shackled the management, trenching seriously upon the right to administer. The law, as now expounded, regards this excess as unconstitutional. ·\n\nIn all these cases administrative ai; tonomy is imperilled transgress\" ing purely regulatory limits. In our case autonomy is virtually left intact and refurbishing,. not restructuring, is prescribed; . The. core of the right is not gouged out •at all and the regulation is at once reasonable and calculated to promote excellence of the institution-a text book instance of constitutional conditions. ·\n\nTo project in bold relief the intrusion into the administration of the provisions in the 2nd Kerala Case (supra), the D.A.V. College Care(I) and St. Xavier's Case (supra) as against the innocuous prescriptions bearing on management in the preSC''1t case, we may make a vivid comparison of the clauses. A chart may speak with eloquent clarity :\n\n(I) (1971] Supp. S.C.R. 68~.\n\n- . - .. _ _i\n\nKrala University Act\n\n(I)\n\nS. 48-Goveming body for private college not under corporate management- (!) The educational agency of a private college, other than a private college under a C()rporate managemtnt, shall constitute in accordance with the provisions of the statutes a governing body consisting of followinu members, namely:\n\n(a) the principal of the private college;\n\n(b) the manager of the private college;\n\n(c) a person nominated by the university in accordance with the Provisions in that behalf contained in the .statutes;\n\n(d) a .person nominated by the Government;\n\n(c) a person rkctcd in accordance with such procedure as may be prescribed by the Statutes from among themselves by the permaneRt teachers of the private college; and\n\nff) not more than six persons nominated . by the educational agency.\n\n(2) The governing body shall be a body corporate having perpetual succession and a comrnon seal.\n\n(3) The manager of the private college shall be the Chairman of the go1•erning body.\n\n(4) A member of the governing body shaU hold office for a period of four years from the date of its constitution.\n\n(5) It shall be the duty of the governing body to administer the private college in accordance with the provisions of this Act and the Statutes, Ordinances Regulations rules, Bye-Jaws and Orde 1'5 made thereunder.\n\nGuru Nanak University\n\nStatutes (D.A. V. College)\n\n(2)\n\nStatute 2 {I) (a)\n\nA college applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate:\n\n(a} That the College shall have a regularly constituted governing body consisting of not more than 20 per sons approved by the Senate and iri eluding, among others, 2 representatives of the University and the Principal of the college ex-officio.\n\nGANDHI FAIZEAM COLLEGE '\" AGPA UNIV. (Krishna Iyer, J.) K 2 9\n\nGujarat University Act (St. Xavier's College Case) Statute 14-A . (impugned in the instant case)\n\n3 -------·----·.r------··---\n\n3J.A.(I) Every college (other than a Government college or col- . lege maintained by tho Government) . affiliated before the commencement of the Ouj.:lrat University (Amendment)-Act, 1972 (hereinafter in this section referFed to as such commencement')-\n\n(a) shall be under the management of a governins body which shall include amongst its members the Principal of thef college, a representative of the University nominated by the Vice• Chancellor and three representatives of the teachers of the College and at least one representative each of the members of the non-teaching staff and the students of the college, to be elected respectively from amongst such teachers members of the non-teaching staff and students; and\n\n(b) that for recruitment of the Principll and members C\\f the teaching staff of a college there is a selection committee of the college which shall include-(1) in the case of recruitment of the Principal, a representative of the University nominated by the Vice- Chancellor, and\n\n(2) in the case of .recruitment of it member of the teaching staff of the college, a representative of the University nominated by the Vice-Chancel!or and the Head of the Department, if any, concerned with the subject to be taught by such member.\n\n(2) Every college referred to in subs~tion (I) shall,-\n\n(a) within a period .of six mont.hs after such commencement,' constitute or reconstitute 1 , 'its governing\n\nbod~ in conformity with sub-section (l) , and (b) as and when cccasion first arises after such commencement, for recruitment of the Principal\n\n14.A. Each college, already affiliated or when affiliated , which is not maintained exclusively by Government must be under the Management of a\n\nre8'!1ar . constituted Governing body (which. term inludes Managing Conumttee) on which the staff of the college shall be represented by tbc Principal of the college and' at least one representative of the teachers of the college to be appointed by rotation in order of seniority detennincd by length of service 'in the college, who shall hold otlicc for one academic year.\n\nand teachers of the college, constitute or reconstitute its\n\nscletion committee so as to be in conformity with sub-section (I).\n\n(3) The provisioas of sub-section (I) ' sliaU bC deemed to be a conditiori of affiliation of every college referred to in sub-section (I).\n\n(ll\n\n(6) The powers and functions of the goyeming body, the removal of mem bers thereof and the procedure to bo l'ollowed by it, including the delegation of its powers, sha\\.I be prescribed by the Statutes. ·\n\n. (7) otwithstading anything contntned m su!rsoclton (6), decisions of the governing body shall be taken at meeting<; on the basis of simple majority of the members present an.d voting.\n\nS.49-'-Managing . council for pri mte coUcges under corporate management-\n\n(a) one principal by rotation in such manner us mav be prescribed by the Statutes; •\n\n(b) the manager of the private college;\n\n(c) a person nomin3ted by the Uni- ' crsity in aceor'<lance with the provisons in that behalf contained in the Statute:\n\n(d) a per>on nominated by the Government;\n\n(e) two prson> elected in acconlan<:<: with such procedure as may be prescribed by tl1e Statutes from :unong thcmsc!w; by the permanent teachers of all the pril'atc colleges; and\n\n(t) not more: than fifteen persons\n\nnominat~'<I by the educational agency.\n\n(2) The managing council shall be a body corporate having perpetual succession tmd a common seal.\n\n(3) The manager of the private colleges shall be the chairman of the\n\nmanaging council.\n\n(4) A member of the managing council shall hold office for a period of four years from the date of the Constitution.\n\n(5) It shall be the duty of the managing council to administer all the private colleges under the corporate management in accordance with the proviions of this Act and the Statutes, Ordinances, Regulations, Bye .. Jaws and Orders made thereunder.\n\n[l 97 SJ 3 s.c . R.\n\n(2)\n\n(J,\\SDlll FA!ZEAill COLLEGE I', AGRA UNIV. (Krisllna Iyer, J.) s :it\n\n---------·---------~-,-~----- ·---·\n\n(6) The power; aml functions of the managing council, the removal of members thereof and the procedure to be . followed by it, including the delcgatJon of tts powers, shall be prescribed by the Statutes. .\n\n. (7) Notwithstanding anything contained in sub-section (6), decisions of the maaaging council shall be taken at meetings on the basis of simple ma- .jority of the members present and vot-\n\n10g,\n\nS, 63-Power to regulate the manage ire rt of private colleges :-\n\n(4) Iftegoverning body or managing councd, as the case may be, disapproves any decision taken by the University in connection with the management of the private college the matter shall be referred by the governing bLdy or managing council, as the case may be, to the Government, within one month of the date of receipt of the report under subsection (3) who shall there upon pass such order there on as they think fit and communicate the same to the go\\'erning bc, dy <lr managing council and also to tc\n\nUniversity.\n\n(6) The manager appointed under sub-section (I) of section 50 shall be bound to give effect tothe dccisic, ns of the University and if at any time, it appears to the University that. the manager is not carrying out its decisions, it may, fer reasons to be recorded in writing and after giving the manager an opportunity of being heard, by order remove him from office and appoint another person to be the manager after consulting the educ•1tional agency. '\n\nIn the chart aforesaid, we have confu1ed our attention to the 'managemct1t' facet of the case but may mention that while in the earlier cases even the power to appoint the principal and staff was controlled,\n\ni11 the instant case it is a refreshing contrast.\n\nFirst the D.A.V. College.\n\nHe who runs and reads will discover that Statute 2(1) (a) insists upon (a) a limit to the strength of the governing hotly; (b) the approval of the Senate. of the University for\n\nthe constitution of the governing body; and ( c) the inclusion of two representatives oI tho University as also the Principal of the college ex-officio. To legislate for the governing body a rigid restriction on its members is to deprive the minority of its free play in organising its management. To compel approval by the Senate-an outside instrumentality-before the governing body can have legal status. is a violent violation of Art. 30. To foist two representatives of the\n\nSUPREME C:OURT RE!'ORTS ll975] 3 S.C.R.\n\nU11ivcrsity-rank outsiders-is again an infringement of the autorwmy .of the minority institution. The Court, in D.A. V. College case (supra) upheld the complaint of the college nuthorities thus\n\n\"In our view there is no possible justification for the provisions contained in Clauses 2 (I )(a) and 17 or Chap. V of the statutes which decidedly interfere with the rights of management of the Petitioners Colleges.\n\nThese provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve dis-affiliation and consequently they will have to be struck down as offending Article 30( J) .\"\n\nJt is impossible to predicate from the above observations that thi' <.'ourt regarded as obnoxious the inclusion of the Principal of the very college. On the other hand, the more serious encroachment which caved in!o the independent management of the College consists in the first three. provisions which arc deprivatory in character. TI1c present case is a graphic contrast. No ceiling on membership; no unbidtien guests, nominees of the University fobbed off on the Managing Committee. The solitary bu( inconsequential similarity of circumst:incc that there is reference to the Princip1l, there and here, cannot approximate the two cases from. the constitutional angle at all, what with complete hold on staff appointment in the former and none in 1hc latter. ·\n\nThe Kera/a Case (supra), as.the table :ibovc shows, insists on the appointment of the Principal himself being controlled, displaces th: minority's Managing Committee by imposing an admixed governing agency of statutory concoction wresting authority from the minority.\n\nA different entity with legislatively limited functions robs the religi-\n\n<lUS group of its right of administration.\n\nThe distance between th: Kerala University Act provisions and those of the Agra University Act is considerable an'J the constitutional import too obvious for ;1rgumcnt.\n\nThe manacle regulations of the Gujarat University Act arc also tell-talc. Its metamorphic impact is best summed up in the t.:rs~ words of Ray, C.J.\n\nTI1e minority character of the college is lost. \\1i1nrity iistitut:ons became part and parcel of the University. Why!\n\nG Because:\n\n\"The provisions contained in section 33-A(l)(a) of the Act state tlnt every college shall be under the management of a governing body which shall .include amongst its members, a representative. of the University nominated by the H Vice-Chancellor and representatives of teachers, non-teachir.g staff and stu'dents of the college ... \"\n\nGA:'\\Di-11 FAIZEAM COLLEGE v. AGRA UNIV. (Krisll'la Iyer, J.) 8 33\n\n\"In (1971) l SCR 734 (State uf Kera/a '' Very Rev . . \\!other Provincial) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice.\n\nThat would also affect the autonomy in administration. The provisions c0ntained in section 33-A(l) (a) of the Act have the effect of displacing\n\nth~ management and entrusting it to a different agency.\n\nThe autonomy in administration is lost.\n\nNew elements in the shape of representatives of different types are brought in. The calm waters of an institution will. not only\" be df!>- turbed but also mixed.\n\nThese provisions in Section 33-A(l) (a) cannot therefore apply to minority institutions.\"\n\n(at p. 1399)\n\nThe foatures of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group; save in the minimal inclusion of two internal entities namely the principal of\n\ntheir own choice and the seniormost lecturer indepen'dently appoint- ed by th'em.\n\nWe are satisfied that the regulatory clauses challenged before E . us impi:ove the administration and do not inhibit its autonomy and are therefore good and valid.\n\nw~ therefore hold that the statute impugned is not vulnerable nor void. The appeal has to be and is dismissed, but without costs in the c'rcumstanccs of this case.\n\nORDER\n\nIn accordance with the opinion of the ajority. the appeal is dismir.sed without any order as to costs.\n\nV.P.S.\n\nAppeal dismissed.\n\n7-564 Sup CI/75", "total_entities": 111, "entities": [{"text": "GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR", "offset_not_found": false}}, {"text": "UNIVERSITY OF AGRA AND ANOTHER", "label": "RESPONDENT", "start_char": 38, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "UNIVERSITY OF AGRA AND ANOTHER", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 86, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "K. K.\n\nMathew", "offset_not_found": false}}, {"text": "V. R. 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GUPTA", "offset_not_found": false}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 196, "end_char": 203, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 1167, "end_char": 1174, "source": "regex", "metadata": {"statute": null}}, {"text": "1971) 1 S.C.R. 734", "label": "CASE_CITATION", "start_char": 3096, "end_char": 3114, "source": "regex", "metadata": {}}, {"text": "I\n\nKera/a Educati011 Bill Case (1959) S.C.R. 995;", "label": "RESPONDENT", "start_char": 3411, "end_char": 3460, "source": "ner", "metadata": {"in_sentence": "8 1 I\n\nKera/a Educati011 Bill Case (1959) S.C.R. 995; St. Xavier's College case\n\n(1975) I. SCR,173; Rev. Fr."}}, {"text": "(1969) 2 S.C.R. 73", "label": "CASE_CITATION", "start_char": 3531, "end_char": 3549, "source": "regex", "metadata": {}}, {"text": "(1970) 1 S.C.R. 172", "label": "CASE_CITATION", "start_char": 3584, "end_char": 3603, "source": "regex", "metadata": {}}, {"text": "K. K. Mathew", "label": "JUDGE", "start_char": 3627, "end_char": 3639, "source": "ner", "metadata": {"in_sentence": "(Per K. K. Mathew, J dissentinJl :\n\nThe whole temper and tone of a college do depend upon the 171 incipal and the teachers, but that does not mean that they should be members of the governing cot•ncil of a w!lege.", "canonical_name": "K. K.\n\nMathew"}}, {"text": "(1975) 1 S.C.R. 173", "label": "CASE_CITATION", "start_char": 3966, "end_char": 3985, "source": "regex", "metadata": {}}, {"text": "s. 33A( 1)", "label": "PROVISION", "start_char": 4022, "end_char": 4032, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat UniversitY Act, 1949", "label": "STATUTE", "start_char": 4044, "end_char": 4072, "source": "regex", "metadata": {}}, {"text": "Art. 30(1)", "label": "PROVISION", "start_char": 4091, "end_char": 4101, "source": "regex", "metadata": {"linked_statute_text": "the Gujarat UniversitY Act, 1949", "statute": "the Gujarat UniversitY Act, 1949"}}, {"text": "State of Kera", "label": "PETITIONER", "start_char": 5313, "end_char": 5326, "source": "ner", "metadata": {"in_sentence": "[8120; 815B-D] ·\n\nState of Kera/a /~<Mother Provincial [1971] 1 S.C.R. 734; W. Proo.it v.\n\nBifwr [1969] 2 SCR 73 and Rer."}}, {"text": "[1971] 1 S.C.R. 734", "label": "CASE_CITATION", "start_char": 5350, "end_char": 5369, "source": "regex", "metadata": {}}, {"text": "[1969] 2 SCR 73", "label": "CASE_CITATION", "start_char": 5392, "end_char": 5407, "source": "regex", "metadata": {}}, {"text": "[1969] 1 SCR\n\n863", "label": "CASE_CITATION", "start_char": 5445, "end_char": 5462, "source": "regex", "metadata": {}}, {"text": "Frank Anthony", "label": "LAWYER", "start_char": 5684, "end_char": 5697, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, K. L. Hathi and P. C. Kapur, for the appellant..\n\nSantosh Chatterjee and G. S. Chatterjee, for the respondents."}}, {"text": "K. L. Hathi", "label": "LAWYER", "start_char": 5699, "end_char": 5710, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, K. L. Hathi and P. C. Kapur, for the appellant..\n\nSantosh Chatterjee and G. S. Chatterjee, for the respondents."}}, {"text": "P. C. Kapur", "label": "LAWYER", "start_char": 5715, "end_char": 5726, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, K. L. Hathi and P. C. Kapur, for the appellant..\n\nSantosh Chatterjee and G. S. Chatterjee, for the respondents."}}, {"text": "Santosh Chatterjee", "label": "LAWYER", "start_char": 5749, "end_char": 5767, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, K. L. Hathi and P. C. Kapur, for the appellant..\n\nSantosh Chatterjee and G. S. Chatterjee, for the respondents."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 5772, "end_char": 5788, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, K. L. Hathi and P. C. Kapur, for the appellant..\n\nSantosh Chatterjee and G. S. Chatterjee, for the respondents."}}, {"text": "K. K.\n\nMathew", "label": "JUDGE", "start_char": 5878, "end_char": 5891, "source": "ner", "metadata": {"in_sentence": "' The Judgment of the Court was delivered b, y Krish11<t iyer, J. K. K.\n\nMathew, J. gave a dissenting opinion.", "canonical_name": "K. K.\n\nMathew"}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 5924, "end_char": 5930, "source": "ner", "metadata": {"in_sentence": "MATHEW, J.\n\nThe question is whether Statut~ 14A framed by the University of Agra abridges the fundamental right guaranteed under Article 30(1) of the Constitution of the Muslim community of Saharanpur, a religious minority, to administer the Gandhi Faizeam College, Saharanpur, established by it.", "canonical_name": "MATHEW"}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 6053, "end_char": 6066, "source": "regex", "metadata": {"statute": null}}, {"text": "Saharanpur", "label": "GPE", "start_char": 6114, "end_char": 6124, "source": "ner", "metadata": {"in_sentence": "MATHEW, J.\n\nThe question is whether Statut~ 14A framed by the University of Agra abridges the fundamental right guaranteed under Article 30(1) of the Constitution of the Muslim community of Saharanpur, a religious minority, to administer the Gandhi Faizeam College, Saharanpur, established by it."}}, {"text": "Section 33A(l)(a)", "label": "PROVISION", "start_char": 7861, "end_char": 7878, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30( I)", "label": "PROVISION", "start_char": 8803, "end_char": 8817, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30", "label": "PROVISION", "start_char": 8992, "end_char": 9002, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 9220, "end_char": 9233, "source": "regex", "metadata": {"statute": null}}, {"text": "1'alekar", "label": "JUDGE", "start_char": 9680, "end_char": 9688, "source": "ner", "metadata": {"in_sentence": "8 13;\n\nThe learned Chief Justice, speaking foc himself and 1'alekar, J., aiter referring to the provisions of s. 3JA(l) (a) said m that case that\n\nrnc right to administer is the right to conduct and manage the affairs of the institution and that this right is exercised \"through a body of per- ; uns i11 whom the founders of the instil ution :iave faith and confidence and who have full autonomy in that sphere\"."}}, {"text": "s. 3J", "label": "PROVISION", "start_char": 9731, "end_char": 9736, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33A(l)", "label": "PROVISION", "start_char": 11008, "end_char": 11022, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33A(l)", "label": "PROVISION", "start_char": 11345, "end_char": 11359, "source": "regex", "metadata": {"statute": null}}, {"text": "Jaganmohan Reddy", "label": "JUDGE", "start_char": 11415, "end_char": 11431, "source": "ner", "metadata": {"in_sentence": "Jaganmohan Reddy."}}, {"text": "Alagiriswami", "label": "JUDGE", "start_char": 11461, "end_char": 11473, "source": "ner", "metadata": {"in_sentence": "J. speaking for himself and Alagiriswami, J .. agreed with the view expressed by."}}, {"text": "s. 33A(l)", "label": "PROVISION", "start_char": 11579, "end_char": 11588, "source": "regex", "metadata": {"statute": null}}, {"text": "Khanna", "label": "JUDGE", "start_char": 11630, "end_char": 11636, "source": "ner", "metadata": {"in_sentence": "Khanna, J. in his concurring judgment said that the argument that a law or regulation could not be deemed unreasonable unless it was totally destructive of the right of the minority to administer educationaf institi1tions was fallacious and wa5 negatived by this Court by its previous decisions and that a law which ·\n\n'\" .... interferes with the minorities choice of a governing body or management council would be violative of the,-/ ."}}, {"text": "Article 30", "label": "PROVISION", "start_char": 12088, "end_char": 12098, "source": "regex", "metadata": {"statute": null}}, {"text": "S. K", "label": "OTHER_PERSON", "start_char": 12182, "end_char": 12186, "source": "ner", "metadata": {"in_sentence": "Rev. S. K,,\n\nPatro, Mother Provincial and D. A. V. College (affiliated to the Guru Nanak Umversity) (supra)."}}, {"text": "Section 33", "label": "PROVISION", "start_char": 12288, "end_char": 12298, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 12577, "end_char": 12590, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandrachud", "label": "JUDGE", "start_char": 12608, "end_char": 12619, "source": "ner", "metadata": {"in_sentence": "On behalf of Chandrachud, J. and myself, I said :\n\n\"The requirement that the college should have a governing boay which shall include persons other than those who are members of the governing body of the Society of Jesus would take away the management of the college from the governing body constituted by the Society of Jesus and vest it in a different body."}}, {"text": "Kerala University Act, 1969", "label": "STATUTE", "start_char": 14701, "end_char": 14728, "source": "regex", "metadata": {}}, {"text": "Article 30", "label": "PROVISION", "start_char": 16915, "end_char": 16925, "source": "regex", "metadata": {"statute": null}}, {"text": "s.33A(l)", "label": "PROVISION", "start_char": 17329, "end_char": 17337, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahmedabad St. Xavier's College", "label": "ORG", "start_char": 17385, "end_char": 17415, "source": "ner", "metadata": {"in_sentence": "The .provisions of Statute 14A are in pari materia with those of s.33A(l) (a) of the Act which fell for consideration in Ahmedabad St. Xavier's College case (supra) except that only the principal and the senior-most member of the staff alone are required to be included in the ma1.1aging committee of the college in question here."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 19789, "end_char": 19801, "source": "ner", "metadata": {"in_sentence": "c\n\nKRISHNA IYER, J.-Our essay in this appeal is to interpret and apply Art.", "canonical_name": "Krishna Iyer,/"}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 19857, "end_char": 19864, "source": "regex", "metadata": {"statute": null}}, {"text": "Marshall", "label": "JUDGE", "start_char": 20185, "end_char": 20193, "source": "ner", "metadata": {"in_sentence": "Chief Justice Marshall, while deciding the celebrated McCol/och v.\n\nMaryland Case(!)"}}, {"text": "Art 30", "label": "PROVISION", "start_char": 21291, "end_char": 21297, "source": "regex", "metadata": {"statute": null}}, {"text": "A. V. Middle School", "label": "PETITIONER", "start_char": 21409, "end_char": 21428, "source": "ner", "metadata": {"in_sentence": "The A. V. Middle School was the off-spring of the effort of the Muslim."}}, {"text": "Shahjehanpur", "label": "GPE", "start_char": 21498, "end_char": 21510, "source": "ner", "metadata": {"in_sentence": "minority resident in Shahjehanpur Di:; trict."}}, {"text": "University of Agra", "label": "RESPONDENT", "start_char": 21781, "end_char": 21799, "source": "ner", "metadata": {"in_sentence": "Krishna /y!.'I', J.) 8 Ii\n\nthe University of Agra.", "canonical_name": "UNIVERSITY OF AGRA AND ANOTHER"}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 22665, "end_char": 22672, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 22913, "end_char": 22920, "source": "regex", "metadata": {"statute": null}}, {"text": "R. N. Pathak", "label": "LAWYER", "start_char": 24612, "end_char": 24624, "source": "ner", "metadata": {"in_sentence": "Emboldened by this provision, the Registrar of the Agra University has made the impugned demand which ru'as thus :\n\n6-LS64SCI/7S\n\nAgra U11irersi1y\n\nFrom\n\nSri R. N. Pathak, Asst.", "canonical_name": "R. N. F'athak"}}, {"text": "April 10, 1965", "label": "DATE", "start_char": 24982, "end_char": 24996, "source": "ner", "metadata": {"in_sentence": "Aftl/7965 Sir,\n\nDated Agra, 24 Apr. 1965 c\n\nWith rcforcncc to your application dated December I , 1964 re~ cognition in c:ertain subjects upto the B. A. standard, I am to inform you that the Executive Council at its meeting held on April 10, 1965\n\nafter considering the report of the Inspectors on the inspection ol' your college and the recommendations of the relevant committee thereon decided that recognition applied for upto the B. A. Standard be not granted to the college unless provision is made in the constitution for representation: ef the,."}}, {"text": "R. N. F'athak", "label": "LAWYER", "start_char": 25709, "end_char": 25722, "source": "ner", "metadata": {"in_sentence": "Sd/- R. N. F'athak Asst.", "canonical_name": "R. N. F'athak"}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 28203, "end_char": 28210, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 28225, "end_char": 28238, "source": "ner", "metadata": {"in_sentence": "A stream of Supreme Court rulings commencing with the Kera/iJ Education Bill Case (') and climaxed by St. Xavier's College Case( 2) has settled the law for the present, and the last refers to the prccedcntial past."}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 28926, "end_char": 28933, "source": "regex", "metadata": {"statute": null}}, {"text": "Ray", "label": "JUDGE", "start_char": 29135, "end_char": 29138, "source": "ner", "metadata": {"in_sentence": "Ray, CJ.,", "canonical_name": "R.ay"}}, {"text": "Das", "label": "JUDGE", "start_char": 29155, "end_char": 29158, "source": "ner", "metadata": {"in_sentence": "following Das CJ. ("}}, {"text": "Krishna Iyer,/", "label": "JUDGE", "start_char": 31858, "end_char": 31872, "source": "ner", "metadata": {"in_sentence": "Krishna Iyer,/,) 8 ll I\n\nensuring orderly, efficient and sound administration.", "canonical_name": "Krishna Iyer,/"}}, {"text": "Dast C.J.", "label": "JUDGE", "start_char": 31938, "end_char": 31947, "source": "ner", "metadata": {"in_sentence": "Dast C.J., in the Kera/a Educatio11 Bill Case (supra) summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to maladminister.\" ("}}, {"text": "Article 30", "label": "PROVISION", "start_char": 33603, "end_char": 33613, "source": "regex", "metadata": {"statute": null}}, {"text": "1963 3 SCR 837", "label": "CASE_CITATION", "start_char": 34013, "end_char": 34027, "source": "regex", "metadata": {}}, {"text": "Article 30", "label": "PROVISION", "start_char": 35115, "end_char": 35125, "source": "regex", "metadata": {"statute": null}}, {"text": "Mathew", "label": "JUDGE", "start_char": 35529, "end_char": 35535, "source": "ner", "metadata": {"in_sentence": "One \\Jf us, sitting on that Bench (Mr. Justice Mathew) has illumined the amplitude of the right under Art.", "canonical_name": "MATHEW"}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 35584, "end_char": 35591, "source": "regex", "metadata": {"statute": null}}, {"text": "Dwivcdi", "label": "JUDGE", "start_char": 36935, "end_char": 36942, "source": "ner", "metadata": {"in_sentence": "at p. 1442) Justices Beg and Dwivcdi have stretched the regulatory power further than the majority, holding that it is an illusion for a minority\n\nGANDHI FAIZEA:M COLLEGE l'."}}, {"text": "GANDHI FAIZEA", "label": "JUDGE", "start_char": 37053, "end_char": 37066, "source": "ner", "metadata": {"in_sentence": "at p. 1442) Justices Beg and Dwivcdi have stretched the regulatory power further than the majority, holding that it is an illusion for a minority\n\nGANDHI FAIZEA:M COLLEGE l'.", "canonical_name": "GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR"}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 37093, "end_char": 37105, "source": "ner", "metadata": {"in_sentence": "Krishna Iyer, J.) 8 23\n\nA to claim absolute immunity.", "canonical_name": "Krishna Iyer,/"}}, {"text": "s.295", "label": "PROVISION", "start_char": 39850, "end_char": 39855, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 39859, "end_char": 39864, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Fmnk Anthony", "label": "OTHER_PERSON", "start_char": 40635, "end_char": 40647, "source": "ner", "metadata": {"in_sentence": "The pith of Shri Fmnk Anthony's submission is that the command of the University to include even the Principal, the bead appointed by that very Management to be in plenary charge of the education imparted in the college, is an &was ion."}}, {"text": "Article 30", "label": "PROVISION", "start_char": 41156, "end_char": 41166, "source": "regex", "metadata": {"statute": null}}, {"text": "Xavier", "label": "OTHER_PERSON", "start_char": 41350, "end_char": 41356, "source": "ner", "metadata": {"in_sentence": "at p. 1423)\n\nAll th~ other learned Judges who are party to St. Xavier (supra) and all th:: earlier rulings have negatived the untouchable absoluteness urged by the managements."}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 41569, "end_char": 41576, "source": "regex", "metadata": {"statute": null}}, {"text": "St. Xavier", "label": "OTHER_PERSON", "start_char": 41993, "end_char": 42003, "source": "ner", "metadata": {"in_sentence": "In the eloquent words of one of the> learned Judges (Mathew, J.) in St. Xavier's case\n\n(supra) :\n\n\"It is upon the principal and teachers of a college that the tone and temper of an educational i11stitution depend."}}, {"text": "ss. 48", "label": "PROVISION", "start_char": 46540, "end_char": 46546, "source": "regex", "metadata": {"statute": null}}, {"text": "R.ay", "label": "JUDGE", "start_char": 46570, "end_char": 46574, "source": "ner", "metadata": {"in_sentence": "summarised by R.ay C.J., in St. Xavier {supra) was stated thus\n\n \"Those sections were found by this Court to have effect of displacing the administration of the college and giving it to a distinct corporate body which was in no way answerable to the institution.", "canonical_name": "R.ay"}}, {"text": "s.48", "label": "PROVISION", "start_char": 47622, "end_char": 47626, "source": "regex", "metadata": {"statute": null}}, {"text": "1st March 1962", "label": "DATE", "start_char": 47686, "end_char": 47700, "source": "ner", "metadata": {"in_sentence": "Proost Case(') held that i: s.48-A of the Bihar Universities Act which came into force from 1st March 1962, completely took away the autonomy of the governing."}}, {"text": "Ranchi", "label": "GPE", "start_char": 47813, "end_char": 47819, "source": "ner", "metadata": {"in_sentence": "body of St. Xavier's College established by the Jesuits of Ranchi."}}, {"text": "Section 48", "label": "PROVISION", "start_char": 47821, "end_char": 47831, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Bihar", "label": "ORG", "start_char": 48582, "end_char": 48596, "source": "ner", "metadata": {"in_sentence": "Rev. Bishop S. K. Patro v. State of Bi/iar(•) the State of Bihar requested the Church Missionary Society School, Bhagalpur to constitute a managing committee of the\n\n(I) Stalpf Kera/av."}}, {"text": "Church Missionary Society School, Bhagalpur", "label": "ORG", "start_char": 48611, "end_char": 48654, "source": "ner", "metadata": {"in_sentence": "Rev. Bishop S. K. Patro v. State of Bi/iar(•) the State of Bihar requested the Church Missionary Society School, Bhagalpur to constitute a managing committee of the\n\n(I) Stalpf Kera/av."}}, {"text": "Krishna Tyer", "label": "JUDGE", "start_char": 48868, "end_char": 48880, "source": "ner", "metadata": {"in_sentence": "Krishna Tyer, J.) 827\n\nschool in accordancc with an order of the State.", "canonical_name": "Krishna Iyer,/"}}, {"text": "Sections 40 and 41", "label": "PROVISION", "start_char": 49178, "end_char": 49196, "source": "regex", "metadata": {"statute": null}}, {"text": "D.A.V. College Care(I)", "label": "ORG", "start_char": 49872, "end_char": 49894, "source": "ner", "metadata": {"in_sentence": "To project in bold relief the intrusion into the administration of the provisions in the 2nd Kerala Case (supra), the D.A.V. College Care(I) and St. Xavier's Case (supra) as against the innocuous prescriptions bearing on management in the preSC''1t case, we may make a vivid comparison of the clauses."}}, {"text": "Krala University Act", "label": "STATUTE", "start_char": 50144, "end_char": 50164, "source": "regex", "metadata": {}}, {"text": "S. 48", "label": "PROVISION", "start_char": 50171, "end_char": 50176, "source": "regex", "metadata": {"linked_statute_text": "Krala University Act", "statute": "Krala University Act"}}, {"text": "manager of the private college shall be the Chairman of the go1•erning body.", "label": "RESPONDENT", "start_char": 51069, "end_char": 51145, "source": "ner", "metadata": {"in_sentence": "(3) The manager of the private college shall be the Chairman of the go1•erning body."}}, {"text": "Guru Nanak University", "label": "OTHER_PERSON", "start_char": 51477, "end_char": 51498, "source": "ner", "metadata": {"in_sentence": "Guru Nanak University\n\nStatutes (D.A. V. College)\n\n(2)\n\nStatute 2 {I) (a)\n\nA college applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate:\n\n(a} That the College shall have a regularly constituted governing body consisting of not more than 20 per sons approved by the Senate and iri eluding, among others, 2 representatives of the University and the Principal of the college ex-officio."}}, {"text": "GANDHI FAIZEAM COLLEGE", "label": "RESPONDENT", "start_char": 51951, "end_char": 51973, "source": "ner", "metadata": {"in_sentence": "GANDHI FAIZEAM COLLEGE '\" AGPA UNIV. (", "canonical_name": "GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR"}}, {"text": "Gujarat University Act", "label": "STATUTE", "start_char": 52014, "end_char": 52036, "source": "regex", "metadata": {}}, {"text": "S.49", "label": "PROVISION", "start_char": 54887, "end_char": 54891, "source": "regex", "metadata": {"statute": null}}, {"text": "Krisllna Iyer", "label": "JUDGE", "start_char": 56133, "end_char": 56146, "source": "ner", "metadata": {"in_sentence": "Krisllna Iyer, J.) s :it\n·---------~-,-~----- ·---·\n\n(6) The power; aml functions of the managing council, the removal of members thereof and the procedure to be .", "canonical_name": "Krishna Iyer,/"}}, {"text": "section 50", "label": "PROVISION", "start_char": 57235, "end_char": 57245, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 58540, "end_char": 58547, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30( J)", "label": "PROVISION", "start_char": 59233, "end_char": 59247, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala University Act provisions and those of the Agra University Act", "label": "STATUTE", "start_char": 60428, "end_char": 60497, "source": "regex", "metadata": {}}, {"text": "section 33", "label": "PROVISION", "start_char": 60882, "end_char": 60892, "source": "regex", "metadata": {"linked_statute_text": "Kerala University Act provisions and those of the Agra University Act", "statute": "Kerala University Act provisions and those of the Agra University Act"}}, {"text": "Krisll'la Iyer", "label": "JUDGE", "start_char": 61231, "end_char": 61245, "source": "ner", "metadata": {"in_sentence": "Krisll'la Iyer, J.) 8 33\n\n\"In (1971) l SCR 734 (State uf Kera/a '' Very Rev . .", "canonical_name": "Krishna Iyer,/"}}, {"text": "section 33", "label": "PROVISION", "start_char": 61664, "end_char": 61674, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 62007, "end_char": 62017, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_834_838_EN", "year": 1975, "text": "MAMLESHWAR PRASAD & ANR\n\nKANAHAIYA LAL (DEAD) THROUGH L.Rs.\n\nMarch 4, 1975\n\n[A. N. RAY, K. K. MATHE\"Y AND V. R. KRISHNA IYER, JJ.]\n\nPrarctice a11d Procedure-Judgment given at the instance of the party ill one appeal on the ha.n's it wdu/d dispose of connected appeals on Identical ftu.13 and law-Whether conMcted appeals can be argued on the bosis of earlier j11dgm'e11t beinR i11c11riam.\n\nThe question that arose in the three appeals and a connected appeal relalli:d to the jurisdiction of Civil courts under the Delhi Land. Reforms Act to adjud.icat•e on certain questions. The four mi1tters were disposed of by a common judg. ment by the High Court. Special leave having been granted, there were four appeals to this Court. The appellants then moved this Court with a view to save money etc., that one of the four appeals may be got ready and directed to be posted as the matter for decision is common to all. Accordingly, one of\n\nthe appeals was he.ard and decided against the appellants. It was, howewr, contended, as regards the other three appeals, that the earlier adjudication was a judgment per incuriam and, therefore, was not binding either on the appella:nts or the Court.\n\nejecting the 1:ontention,\n\n HELD : (I) As a result of an application at an earlier stage the appellants got benefits like l'(:duced security deposit and consolidation for printing a:11d hearing on their representation to the Court that the points arising in all the appeals were common and the disposal of one would govern the rest. A litigant cnnnot play fast and lose with the Court.\n\n[836F-HJ Ex Parle Pratt (52) Q.B. 334, referred to.\n\n(2) Ordinarily a decision once rendered must later bind like cases that is, a prior decision of the Court on identical facts and law binds the court on the same points in a fater case. In the present case the earlier decision was ad mittedly rendered on facts and Jaw, indistinguishably identical with those in the other three appeals. [837B, C-D)\n\n(3) In cxc l'ptional and rare instances, where by obvious inadvertence or oversight a judgment failis to notice a plain statutory provision or obligatorY authori' y runnin11 counter to the reasoning and the result reached, it may not havo the sway of a binding precedent. But in the present case, the point abciut the Civil Court's power to go into a land reform litigation had been considered\n\nand adversely decided, so much so, it is not correct for the appellants to say that the matter had, by grave lnadventence been missed. to give rise to any\n\nqt~stion of a judgment given per incuriam.\n\n[835E; 837B-C] Cassel & Cd. Ltd. v. Broome [1972] 1 All. E.R. 301=[1972] 2 W.L.R. 645 and The English Le1?al System by R. J. Walker & M. G. Walker, III [dn ..\n\nButterwmths, 1972, referred to.\n\nC!vrL APPELLATE ~URISDICTION : Civil Appeals Nos. 2167 to 2169 of 1968. - From the Judgment and Order dated 16th August, 1966 of the Delhi High Court in L.P.A. Nos. 63-D, 65-D & 66-D of 1965.\n\nN. S. Bindra, S. S. Dalal and D. D. Sharma, for the appellants.\n\nV. D. Mahajan, for respondents (In C.As. 2168-69).\n\nSarjoo Prasad, Uma Mehta, R. K. Mehta and M. L. lain:, for the respondent (inC.A. No. 2167/68). ·\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J. A common judgment of the Division Bench of the Delhi Hign Court disposed of four appeals, the points covered by all being admittedly identical. Special leave was granted by this Court and thus four appeals came into existence here. However, the appel !ants before us moved this Court that with a view to save money and energy, one of the four may be directed to be got ready and disposed of and the others may, thereafter, follow the fate of the first.\n\nOn this basis C.A. 2556 of 1966 was heard at length and decided adversely to the present appellants. Shri Bindra, learned counsel for the appellants, submits that the earlier adjudication by this Court amounted to a judgment per incuriam and did not bind him or the Court. He was thus free to argue on the merits, especially the holding on the civil court's jurisdiction, and . the matter was at large.\n\nWe have to coli.sider this contention on its merits.\n\nCertain background facts bearing on the narrow question above posed serve to appreciate the point made. The present batch of appeals, as already stated, emanated from a judgment covering them all rendered by the Delhi High Court which itself arose out of a like common judgment of a Single Judge of the High Court and so on down the pyramid to the base viz., the decree of the trial Court. The present appellant had lost the battle all along the line. For brevity's sake, we may content ourselves with the statement that the Courts had been invited to pronounce upon the jurisdiction of the civil court to adjudicate upon the c:ontroversy which related to the Delhi Land Reforms Act with special reference to relevant provisions barring suits. In short the point about the civil court's power to go into a land reform litigation had been considered and adversely decided, so much so it is not correct for the appellants to say that the matter had, by grave inadvertence, been missed. We are not examining the soundness of the actual decision on the merits since indeed we feel that the appeals must fail in limine and no principle of judgment per incuriam can salvage the case.\n\n At an early stage, an application was made before tpis Court embracing all the appeals, including the present thre.e, which runs thus :\n\n\"In the matter of: Civil Appeal No. 2556 of 1966 and\n\nIn the matter of Appeals arising from the orders dated 14-8-1968 of the Delhi High Court in S.C.A. No. 186-D/66. 189-D of 1966 and 190-D/66 and\n\n\"In the matter of Mamleshwar Pershad and another.\n\nx x x x The petitioners (appellants) accordingly pray that this H Hon'ble Court may be pleased to pass orders\n\n(1) Consolidating the 4 appeals above-mentioned.\n\n(2) Modifying the orders dated 8-12-1966 in S.L.P.\n\n836 SUi'REME COURT REPOkTS £19751 3 s.c.R.\n\ni 366 of 1966 so that the security for the respondents' costs deposited in the said appeal may be considered also as security for the costs of the Respondents in the 3 appeals arising from the S.C.As. No. 186-D, 189-D and 190-D of 1966.\n\n( 3) That in case the appellants are required to furnish further security llpart from . the amount deposited in Civil Appeal No. 2556 of 1966, time may be suitably extended for such deposit and delay in depositing within the time allowed by the Rules may be condoned.\n\n( 4) Modifying the directions regarding the preparation of record so that the proceedings in the High Courts to be printed in the appeal No. 2556 of 1966 be read as record in the three other appealr. afore-mentioned and that the re- . cord for the said three other appeals may' be printed only so as to include the proceedings in the trial Court and the 1st Appellate Courts; and\n\n(5) Such further or other directions may be made as this Hon'ble Court may deem fit in the circumstances of the case.\"\n\nWhat needs to be underscored is the appellant's own prayer that the four appeals be consolidated. The reason given is tell-tale :\n\n\"That only one judgment of the High Court in the Letters Patent Appeals is impugned before your Lordships in all the\n\n4 appeals abov.:-mentioned. It is therefore in the interest of E justice that the 4 appeals viz., the Civil Appeal No. 2556 of 1966 and the other 3 appeals arising from SCAs No. 186-D, 189-D and 190-D of 1966 deserve to be cons:Jlidated and would be disposed of by one argument common to all of them.\n\nThat there is nothing to be decided by this Hon'ble Court in any of the Appeals which is not common to any of the rest of them.\" (Emphasis, ours) F\n\nThis prayer was granted and thus the appellants got the benefits like 1reduced security deposit and consolidation for purposes of printing and hearing of the appeals, on their representation to the Court that the points arisint; in all the appeals were common and the disposa.l .of one would gov(:rn the rest.\n\nA litigant cannot play fast and loose with the Court. His word to the Court is as good as his bond and we must, without more ado, negative the present shift in stand by an astute discovery of a plea that the earlier judgment was rendered per bicuriam.\n\nThe wisdom which has fallen from Bowen, L.J. in Ex Parte\n\nPratt(l), though. dlivered in a different context, has wider relevance H to include the present position. The learned Lord Justice observed :\n\n(I) 52 Q.B. 334, 34!.\n\n\"There is a good old-fashioned rule that no one has a right to conduct himself before a tribunal as if he accepted its jurisdiction, and then afterwards, when he finds that it has decided against him, to turn round and say, \"You have no jurisdiction\".\" _\n\nCertainty of the law, consistency of rulings and comity ot courtsall flowering from the same principle--coverage to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents.\n\nIt should be a glaring case, an obtrusive omission. No such situatlon presents itself here and we do not embark on the principle of judgment per incuria. n.\n\nFinally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind.\n\nShri Bindra, learned counsel has cited a few decisions before us to substantiate his submission that judgments per incuriam bind none except the particular parties to the lis. In this context, he has drawn our attention to the observations in Young v. Bristol Aeroplane Co.\n\nLtd. ( 1) which has been approved by the House of Lords in Young\n\nv. Bristol Aeroplane Co. Ltd. (2).\n\nSimilar statements are found in brief terms in the rulings reported as Nicholas v. Penny( 3 ) and The Bengal Immunity Company Ltd, Case(4). We need not debate, in the present case, this fresh ground to undermine otherwise conclusive judgments for other paramount ruler governing justice administration prevail, as earlier indicated.\n\nBut it is extremely significant that this facile theory was frowned upon by the House of Lords in Cassel & Co. Ltd. v. Broome('). In that case the highest Court, viz. the House of Lords.\n\n\"rejected in condemnatory terms the Court of Appeal's decision to the effect that the decision of the House of Lords in Rooke.s v. Barnard (1964 A.C. 1129) on the issue of exemplary damages had been reached per incuriam because of two previous decisions of the House.\n\nLord Hailsham.\n\nL.C., in the course of the leading speech for the majority,\n\nasserted that 'it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way' while Lord Reid took the vie wthat it was 'obvious thm the Court of Appeal failed to understand Lord Devlin's\n\n(I) [1944] 1 K. B. 718, 729.\n\n(2) [1946] A.C. 163, 169.\n\n(3) [1950] 2 KB. 466.\n\n(4) [1955] 2 S.C.R. 613\n\n(5) [1972] l All E.R. 801-(1972) 2 W.L.R. 645.\n\n8 3:3\n\nSUPREME COURT REPORTS [197 51 3 s.c;.R.\n\nspeech'. The per incuriam principle is of lin1ited application. \\'ery few decisions have subsequently been regarded as having been reached per incuriam and in Morelle v. Wakeling\n\n11955 2 Q.B. 379) a Master of the Rolls stated that such instances should be 'of the rarest occurrence', and should be limited to 'decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned'. Thus the doctrine will not be extended to cases which were merely not fully argued or\n\nwhich appear to talce a wrong view of the authorities or to misinterpret a statute.\" (1)\n\nKow to costs. A compassionate submission was made by Shri Bindra that the parties do bear their costs in this Court. We diirect accordingly.\n\nV.P.S.\n\nAppeal dismissed\n\n(IJ aThe English Legal.System\" by R.J. Walker & M. G. Walker, Ill hill.\n\nButter•, yorths, 197'.c.", "total_entities": 26, "entities": [{"text": "MAMLESHWAR PRASAD", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "ner", "metadata": {"in_sentence": "MAMLESHWAR PRASAD & ANR\n\nKANAHAIYA LAL (DEAD) THROUGH L.Rs.", "canonical_name": "MAMLESHWAR PRASAD & ANR"}}, {"text": "ANR\n\nKANAHAIYA LAL (DEAD) THROUGH L.Rs", "label": "RESPONDENT", "start_char": 20, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "KANAHAIYA LAL (DEAD) THROUGH L.Rs", "offset_not_found": false}}, {"text": "March 4, 1975", "label": "DATE", "start_char": 61, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "March 4, 1975\n\n[A. N. RAY, K. K. MATHE\"Y AND V. R. KRISHNA IYER, JJ.]"}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 77, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 106, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "R. J. Walker", "label": "JUDGE", "start_char": 2690, "end_char": 2702, "source": "ner", "metadata": {"in_sentence": "E.R. 301=[1972] 2 W.L.R. 645 and The English Le1?al System by R. J. Walker & M. G. Walker, III [dn ..\n\nButterwmths, 1972, referred to.", "canonical_name": "R. J. Walker"}}, {"text": "M. G. Walker", "label": "OTHER_PERSON", "start_char": 2705, "end_char": 2717, "source": "ner", "metadata": {"in_sentence": "E.R. 301=[1972] 2 W.L.R. 645 and The English Le1?al System by R. J. Walker & M. G. Walker, III [dn ..\n\nButterwmths, 1972, referred to."}}, {"text": "N. S. Bindra", "label": "LAWYER", "start_char": 2957, "end_char": 2969, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. S. Dalal and D. D. Sharma, for the appellants."}}, {"text": "S. S. Dalal", "label": "LAWYER", "start_char": 2971, "end_char": 2982, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. S. Dalal and D. D. Sharma, for the appellants."}}, {"text": "D. D. Sharma", "label": "LAWYER", "start_char": 2987, "end_char": 2999, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. S. Dalal and D. D. Sharma, for the appellants."}}, {"text": "V. D. Mahajan", "label": "LAWYER", "start_char": 3022, "end_char": 3035, "source": "ner", "metadata": {"in_sentence": "V. D. Mahajan, for respondents (In C.As."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 3074, "end_char": 3087, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, Uma Mehta, R. K. Mehta and M. L. lain:, for the respondent (inC.A. No."}}, {"text": "Uma Mehta", "label": "LAWYER", "start_char": 3089, "end_char": 3098, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, Uma Mehta, R. K. Mehta and M. L. lain:, for the respondent (inC.A. No."}}, {"text": "R. K. Mehta", "label": "LAWYER", "start_char": 3100, "end_char": 3111, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, Uma Mehta, R. K. Mehta and M. L. lain:, for the respondent (inC.A. No."}}, {"text": "M. L. lain", "label": "OTHER_PERSON", "start_char": 3116, "end_char": 3126, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, Uma Mehta, R. K. Mehta and M. L. lain:, for the respondent (inC.A. No."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 3217, "end_char": 3229, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J. A common judgment of the Division Bench of the Delhi Hign Court disposed of four appeals, the points covered by all being admittedly identical."}}, {"text": "Delhi Hign Court", "label": "COURT", "start_char": 3281, "end_char": 3297, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J. A common judgment of the Division Bench of the Delhi Hign Court disposed of four appeals, the points covered by all being admittedly identical."}}, {"text": "Bindra", "label": "OTHER_PERSON", "start_char": 3794, "end_char": 3800, "source": "ner", "metadata": {"in_sentence": "Shri Bindra, learned counsel for the appellants, submits that the earlier adjudication by this Court amounted to a judgment per incuriam and did not bind him or the Court."}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 4358, "end_char": 4374, "source": "ner", "metadata": {"in_sentence": "The present batch of appeals, as already stated, emanated from a judgment covering them all rendered by the Delhi High Court which itself arose out of a like common judgment of a Single Judge of the High Court and so on down the pyramid to the base viz.,"}}, {"text": "Bowen", "label": "JUDGE", "start_char": 8275, "end_char": 8280, "source": "ner", "metadata": {"in_sentence": "The wisdom which has fallen from Bowen, L.J. in Ex Parte\n\nPratt(l), though."}}, {"text": "Bengal Immunity Company Ltd", "label": "RESPONDENT", "start_char": 10113, "end_char": 10140, "source": "ner", "metadata": {"in_sentence": "Similar statements are found in brief terms in the rulings reported as Nicholas v. Penny( 3 ) and The Bengal Immunity Company Ltd, Case(4)."}}, {"text": "Hailsham.\n\nL.C.", "label": "LAWYER", "start_char": 10807, "end_char": 10822, "source": "ner", "metadata": {"in_sentence": "Lord Hailsham."}}, {"text": "Reid", "label": "OTHER_PERSON", "start_char": 11052, "end_char": 11056, "source": "ner", "metadata": {"in_sentence": "L.C., in the course of the leading speech for the majority,\n\nasserted that 'it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way' while Lord Reid took the vie wthat it was 'obvious thm the Court of Appeal failed to understand Lord Devlin's\n\n(I) [1944] 1 K. B. 718, 729."}}, {"text": "Devlin", "label": "OTHER_PERSON", "start_char": 11142, "end_char": 11148, "source": "ner", "metadata": {"in_sentence": "L.C., in the course of the leading speech for the majority,\n\nasserted that 'it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way' while Lord Reid took the vie wthat it was 'obvious thm the Court of Appeal failed to understand Lord Devlin's\n\n(I) [1944] 1 K. B. 718, 729."}}, {"text": "[1955] 2 S.C.R. 613", "label": "CASE_CITATION", "start_char": 11236, "end_char": 11255, "source": "regex", "metadata": {}}, {"text": "R.J. Walker", "label": "JUDGE", "start_char": 12184, "end_char": 12195, "source": "ner", "metadata": {"in_sentence": "System\" by R.J. Walker & M. G. Walker, Ill hill.", "canonical_name": "R. J. Walker"}}]}
{"document_id": "1975_3_839_845_EN", "year": 1975, "text": "RAMCHANDRA KESHA V ADKE & ORS\n\nGOVIND J01'1 CHA V ARE AND ORS.\n\nMarch 4, 1975\n\n[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]\n\nBombay Tenancy Act (67 of 1948)-S, 5 (3).-Scope of.\n\nSection 5(3) (b) of the Bombay Tenancy Act enacts that a tenant may terminate the tenancy at any time by surrendering his interest .as a !nant in favour of the landlord provided that such surrender shall be m wntmg and shall be verified before the Mamlatdar in the manner prescribed.\n\nRule 2-A of the Rules states that the Mamlatdar, when verifying a surrender of a tenancy by a tenant, stall satisfy himself after such inquiry as he thinks fit, that the tenant understands the nature and consequences of the surrender and also that it is voluntary. and shall endorse his findings in that behalf upon the document of surrender.\n\nThe appellants. who were the landlords of certain lands, made an application to the Mamlatdar stating that the tenant was w:lling to ~.urrender his tenancy in the agriculural land and prayed for verification under s. 5 ( 3) of the Bombay Tenancy Act ( 67 of 1948).\n\nThe Mamlatdar did not verify the surrender.\n\nThe Circle Officer recorded the statement of the tenant and the landlords and passed an order on the application.\n\nMutation entry was made in the record of rights of the village and the landlords' name was entered in 'the register as a person in actual possession of the land.\n\nA few months later, however, the tenant made an application for a declaration that he was . the tenant is possession of the land in dispute.\n\nThis was dismissed by the Tenancy Aval Karkun.\n\nThe tenant thereupon preferred an appeal before the Special Deputy Collector, who held that the order passed by the Circle Officer was not an order passed by the Mamlatdar as required by the tenancy law .and as such it was without jur'sdiction and void and that there was no verification of the surrender application as required by law.\n\nThe revision application preferred to the Maharasthra Revenue Tribunal by the landlords was dismissed.\n\nThe fandlords' writ petition was dismissed by the High Court holding that the alleged surrender was a nullity as there was no compliance with the mandatory requirements of s. 5 (3) of the Ilombay Tenancy Act, read with r. 2-A.\n\nOn appeal to this Court it was contended th&t the provisions of r. 2-A are directory and not mandatory and that there had been a substantial compliance with the requirements of the relevant provisions of the Act and the rule.\n\nDismissing the appeal,\n\nHELD: !(a) The imperative language the beneficient purpose and importance of s. 5(3 )(b) of the Act and r. 2-A for efficacious implementation of the general scheme of the Act-all unerringly lead to the conclus'on that\n\n\\hey were intended to be mandatory. Neglect of any of these statutory requisites would be fatal.\n\nDisobedience of even one of these mandate' would render !he ;1 rre.nder invalid and ineffectual. rB44Gl\n\n(b) The language of s. 5(3) (b) and r. 2-A is absolute. explicit and\n\nperemptor~-. The words '.provided that' read with the words 'shall be' repeatedly used in s. 5(3)(b) make the terminat'on of tenancy by surrender entirely subject to the imperative conditions laid down ; n the proviso. This proviso throws a benevolent rin11 of prote<; tion arnund tenants.\n\nIt is designed to protect a tmz, n.t on two fronl• agamst t.>.vo types of dangers--one ag<.nst possiblr,\n\noerc10n, _undue influence and trickery proceeding from the landlord and the o:her a.gams.t the tenai:it's own ignorance. improvidence and attitude of heloless\n\n'elf-'.'\"'\"r'.al1on stemming from his weaker position in the tenant-landlord 1 el::<10:1sh1p.\n\n[844E-FJ\n\n(c) The intentio~ of the legislatu.re is to be ascertained .. upon. a re, iew of the language, sub1ect matter and 1~1portance of the proV1S10n m re.la'~'on\n\nto general object to he secured, the mischief to be TJreented and the l<n\".dy to be 1\":omotcd by the Act.\n\n[843F]\n\nLiverrwol Boroualt Bank v. Turna (1861) 30 L.J. Ch. 379 at p .. '30; \" E \" ry f d t Craise on Statute Law, 7th do. p ... o •. re erre o.\n\nIn the instant case all that the Circle Officer did was t~ record the st:ttement of the tenant and landlord and make the ordr. He did not say a w1;>r<f that he was satisfied that the tenant had voluntnly made a s~1-rendr a1; ter\n\nunderstanding its nature and consequences nor did he endorse his sat1sfacl100 on the tenant's deed of surrender as required by r. 2A. requirement as tc1 the recording of its satisfaction by the authority in the manner prcribed by the rnle was the substance of the matter and not an empty formality. In the absence of the requisite. enuorsement it cannot be said that there had \\:>en even a substantial compliance with the statutory requirements, [845A-Cl\n\n( 2) The rule th at where a power is given to do a certain thing ii1 a certain way the thing must be done in that way or not at all and that other methods of' performance are necessarily forbidden is attracted with fUll force in this case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the ve:rification of the surrender in a manner other than the :one p1reseribed, is implieci in these provisions. Failure to comply with thes~ ma1:datory provisions had vitiated the surrender and rendered it non-est for the r:urpose of s. 5 ( 3) (b) of the Act.\n\n[R45E-G]\n\nTaylor v. Taylor [1876] Ch. D 426; Nazir Ahmed v. Emperor LR.. 63\n\nI.A. 372-ATR 1936 P.C. 253; Sliiv Bahadur Singli v.\n\nState of 11.P. (1954] S.C.R. 1098 and Deep Chand v. State of Rajasthan [1962] S.C.R. 662 followed.\n\nCtvrL APPELLATE JURISDICTION : Civil Appeal Nos. 58 & 810 of 1968.\n\nAppeal by special leave from the judgment and order dated the 5th October, 1967 of the Bombay High Court in S.C.A. Nos. 69S & 696 of '1966.\n\nS. T. Desai and B. R. Agarwa/a, for the •appellants.\n\nK. Rajendra Choudhury and P. C. Kapur, for the respondent,.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.-These appeals by special leave are directed against the common judgment, dated 5.10.1967, of the High Court of Bombay dismissing two Writ Petitions filed by the •appellants to impugn the orders of Maharashtra Revenue Tribunal. The material facts are these :\n\n01 Septembei\" 8, 1953, the predecessor of appellants 1 and 2\n\n(heremaer. called the landlords) made an application to the Mamlatd!il\" of M1ra1? that the enant (Respondent oo. 1) was willing to surrender his.tenancy m the agricultural land,. bearing Survey No. 102/2, admeasu~~ 8 .acrs and 22 .Gunthas, situated at village Haripur, Taluka Mrra1, D1stnct Sangh m the State of Maharashtra.\n\nThe landlord prayed that the surrender in his favour should be verified unde~ s._5(3) of the Bombay Tenancy Act 67 of 1948.\n\nTo this application the landlord annexed a letter of surrender 'Jearing the thumb-impression\n\n' ,,\n\nof the tenant. The Mamlatdar did not verify the surrender, or pass any final order in the matter.\n\nThe landlord's application however came up before Shri Bhokare, the then Circle Officer. of Mirai who after recording the statements of the tenant and the landlord, CTade this order on it.\n\n\"The applicant and the tenant are present.\n\nThe tenan: Shri Chaware states that the suit land viz.\n\nS. No. 102/1 measuring 8-22 and assessed at Rs. 44-3-0 of Haripur belongs to the applicant and that he is cultivating the same ao\n\na protected tenant. He further adds that he does not want to cultivate the same any longer and so he is surrendering the possession willingly along with crops and also the right as pro. tenant.\n\nI, therefore, order that the possession of the suit land should be handed over to the applicant with the crops and the right as pro. tenant should be deleted under Secti'or. 29 (i) (3) o~ the B.T. and AL. Act 1948 Haripur 18-9-53.\n\nBhokare (M. M. Bhokare) Circle Officer, Sangli.\"\n\nPursuant to the above order, a Panchnama was prepared by the Talati on November 20, 1953, in which it was stated that the possession of this tenancy land had been given to the landlord. The latter executed a Kabje-Pavti to the effect, that he had obtained the possession. Mutation entry No. 431 was also made in this respect in the record of rights of the village and the name of the landlord was entered as Kabzedar in actual possession. On April 23, 1959, the landlord sold this land to appellants 3 and 4 and respondents 2 and 3.\n\nOn 9-11-1959, the tenant made an applicafron against th.: Landlord and his transferees (Sherikars) to the Additional Tenancy ..Xvalkarkun, Miraj, praying for a declaration that he was the tenant-in-possession of the land in dispute and further that the opponents be injuncted not to disturb his possession over the land.\n\nTn the altanative, he prayed that if he was found to have lost possession, the same be restored to him, This application was opposed by the landlord and his transferees on two main grounds: (1) that the tenant had duly surrendered his tenancy in 1953 and he was not in possession thereafter, and (2) that his application was time-barred.\n\nBoth these grounds found favour with the Tenancy Aval Karkun, and he dismissed foe tenant's application by an order dated 22-11-1961.\n\nAggrieved, the tenant filed Tenancy Appeal No. 292 of 1962 before the Special Deputy Collector, Sangli.\n\nThe tenant preferred another appeal also, to the Deputv Collector against the order, dated 18-9-1953, of the Circle Officer, Mr. Bhokare, whereby the tenant's name was deleted from the record of rights.\n\nThe Deputy Collector held that Shri Bhokare'~ Order was not an order nassed by a Mamlatdar as required by the Tenancy law and, consequently, it was without jurisdiction and void. He further held that there was no verific:i.t1on\n\no~ the surrender applicatlon as required by law.\n\nHe further found that, in fact, the tenant had never surrendered the tenancy, but 1'.ad continued to be in possession till he was illegally dispossessed in 1959 and consequently hi~ application was within time. On these findings the Special Deputy Collector allu; ved both the appeals, and direct1::d\n\nthat the possession of the suit land be restored to the tenant. He also set aside the mder of the Circle Officer regarding the mutation entry.\n\nAgainst the Deputy Collector's decision, the landlord preferred\n\ntwc~ revision applications before the Maharashtra Revenue Tribunal The Tribunal dismissed the revision applications and affirmed the findings of the Deputy Collector. The landlords and their transferees thereupon moved the High Court of Bombay by two writ petitions under Article 227 of the Constitution for impugning the revisional orders of the Tribunal. The High Court, as already stated, dismissed the petitions. Hence these appeals.\n\nThe common question that falls to be determined in these appeals is whether in the circumstances of this case, the alleged surrender y the tenant was valid ?\n\nThe Deputy Collector and the Tribunal have concurrently answered this question in the negative on the threefold ground : (i) That the so-called surrender was a sham transacti'on because the tenant continued thereafter to be in possession and paid rent to the landlord upto 1959; (ii) That Circle Officers were not empowered to dispose of tenancy cases and as such Shri Bhokare's order, dated Septemb<r 18, 1953, was without jurisdiction and (iii) That the surrender had not been verified as required by law.\n\nThe High Court upheld the finding l'.ln ground (i), the same being a finding of fact not shown to be erroneous. It did not think it necessary to go into the second ground.\n\nRegarding the third ground, it held that the alleged surrender was a nullity as there was no compliance with the mandatory requirements of s.5(3) of the Bombay Tenancy Act, 1953 read with Rule 2-A in regard to the verification of a surrender.\n\nSection 5(3)(b) of the Act, at the material time, was as follows :\n\n\"A tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of landlord.\n\nProvided that such surrender shall be in writing and shall be verified before the Ma.mlatdar in the manner prescribed.\"\n\nThe mnncr of such verification has been prescribed by Rule 2-A, in these terms :\n\n''The Mamlatdar when verifying a surrender of a tenancy by a tenant in favour of the landlord under clause (b) of sub-section t3) of section 5, shall satisfy himself, after such enquiry as he thinks fit, that the tenant understands the nature and consequences of the surrender and also that it is voluntary, and shall endorse his findings in that behalf upon the doc:ument of surrender.\"\n\n. '•\n\nIt will be seen from a combined reading of these provisions that a surrender of tenancy by a tenant in order to be valid and effective must fulfil these requirements : (1) It must be in writing.\n\n(2) It must be ycrified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely,\n\n(a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary.\n\n(4) The Mamlatdar must endorse his finding as to such satisfaction upon the document of surrender.\n\nll.1r. Desai, learned Counsel for the appellants contends that the provisions of Rule 2-A are directory and not mandatory; that in any case there has been a substantial compliance with the requirements\n\no~ the relevant provisions of the Act and the Rule. It is submitted that the deed of surrender executed by the tenant was presented along with the application of the landlor.d, to the Mamlatdar; that the Circle Officer exercising the powers of Aval Karkun, then made an enquiry and recorded the statements of the tenant and the landlord to ascertain whether th<> surrender had been intelligently and voluntarily made by the tenant, and that it was only after verifying the requisite facts, the Officer made the order directing delivery 'Of possession to the landlord and deletion of the tenant's name from the record of rights.\n\nIt is argued that the mere fact that the Circle Officer's order or endorsement was strictly not in the form prescribed, would not invalidate the surrender. In this connection, the learned Counsel drew our attention to this sentence in the judgment of the Tribunal : \"But there is no doubt that the above formalities were gone through before the Circle Officer\".\n\nThus, the first point to be considered is, whether the requirements of these provisions are mandatory or directory. \"No universal rule\", said Lord Campell\" ( 1) can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope.\" Such intention of the legislature is therefore to bi:; ascertained upon a review of the language, subject matter and importance of the provision in relation to the general Gbject intended to be secured the mischief, if any, to be prevented and the remedy to be promoted by the Act.\n\n, Prior to the enactment of the Bombay Tenancy Act, 1939, the laws governing the relations between: landlords and tenants in the State did not ensure equal status of contract or agreement to the contracting parties inasmuch as the tenants were in a much inferior position. The tenants had no security of tenure. nor any protection against eviction or rack-renting.\n\nBombay Act 29 of 1939 was the first measure enacted to remedy these evils and to improve the condition of tenants of agricultural lands in the Province.\n\n(I) Liverpoof llorough Bank v. Turner ( 1861) 30 L J. Ch. 3 7 9d t p. 380; Craies of' Statute Law, 7th Edn., p. 262.\n\n• The Bombay Act 67 of 1948 registered an advance in the matter .of ameliorating the lot of r'yots. It marked a big step taken in the post-Independence era by the State legislature towards impleme, ntation of the policy of agrarian reforms.\n\nChapter II of the Act deals with tenancies in general.\n\nSections 5 and 15 are in this Chapter.\n\nChapter III makes provision for special rights and privileges of 1enants and allied matters.\n\nThe provisions in th.ese Chapters confer on 'protected tenants' the right to purchase their holdings from their landlords, to prevent uneconomic cultivati\"On and to create and encourage peasant proprietorship.\n\nProvision for 'surrender' of tenancy first appeared in a bald form, without any safeguards, in the Proviso to Section 5(2) of the Act of\n\n1948. That Proviso ran thus:\n\n\"Provided that any tenancy may be terminated by a tenant before the expiry of a period of ten years by surrendering his interest as a tenant in favour of landlord.\"\n\nIn its unguarded form, the provision was inadequate, and vulner- :able. It was susceptible to 'lbuse.\n\nUnder its cloak, scheming landlords could squeeze out tenants, or induce them by questionable D means to leave the protective umbrella of the Act.\n\nThe Bombay (Amendment) Act 33 of 1952, which came into force on 12-1-1953, recast this provision and hedged round the surrender with effective sa(eguards.\n\nIt substituted sub-section (3)(b)-as reproduced by us earlier in this judgment-for the old Proviso in Se.ction 5.\n\nThe language of s.5(3)(b) and Rule 2-A is abwlute, explicit and E peremptory.\n\nThe words \"Provided that\" read with the words \"shall be\", repeatedly used in s.5(3)(b), make the termination of tenancy by surrender entirely subject to the imperative cond; tim1s laid down in the Proviso.\n\nThis Proviso throws a benevolent ring of protection around tenants.\n\nIt is designed to protect a tenant on two fronts against two types of dangcrs--one against possible coercion, undue influence and trickery proceeding from the landlord, and the other F against the tenant's own ignorance, improvidence and attitude of hdpkss self-resignation stemming from his weaker position in 111e tenant-landlord relationship.\n\nThus, the imperative language, the bencficient purpose and inlp'Jrtance of these prnvisions for efficacious implementation of the general scheme of the Act all unerringly lead to the conclusion that thev \\Yre i11tcncled to be mandatory. 'Neglect of any of these statutory -requi- G sites would be fatal.\n\nDisobedience of even one of these mandates would render thG surrender invalid and ineffectual.\n\nHaving seen that the requirements of s.5(3)(b) and Rule '.2:-\\ ;:re obligatory, and not directory. it remains to be considered whether the;:c imperatives have been substantially complied with in the manner pn~'- . criibecl, and if not, what is the consequence of non-compliance ;, H\n\nThe question of inherent jurisdiction apart. all that the Circle Officer did in this case, was that he recorded the statements of the\n\nRAM CHANDRA v. GOVIND (Sarkaria, J.) 8 4 5.\n\ntenant and landlord and , nade the order-which we have reproduced in full earlier in this judgment. Although in this order he referred to the tenant's statement ''that he does not want to cultivate the oamc any longer and so he is surrendering the possession willingly along 11ith crops and also the right as pro. tenant\", he did n:ot say a word that he was satisfied that the tenant had voluntarily made the surrender after understanding its nature and consequences, much less did heendorse his satisfaction on the tenant's deed of surrender as required by Rule 2-A.\n\nVerification of the surrender implies that the authority was satisfied as to the statutory requisites after due enquiry.\n\nSuch satisfaction of the authority was the essence of the whole thing.\n\nIn other words, this requirement as to the recordi!J.g _of its satisfact10n by the authority in the manner prescribed by the Rule, was the substance of the matter and not an empty formality.\n\nIn the absence of the requisite endorsement, therefore, it cannot be said that there has b.;-en even a substantial compliance with the statutory requirements.\n\n:Vlr. Desai's contention that the Tribunal had found that the Circle Officer had complied with all the formalities prescribed by law, does not appear to be correct.\n\nThe sentence from which it is sought to be spelled out should not bf'. torn from its context.\n\nEarlier in its judgment, the Tribunal had clearly said in concurrence with the Deputy Collector, that the surrender had not been verified as required by law.\n\nNext point to be considered is, what is the consequence of noncompliance with this mandatory procedure ?\n\nA century ago, in Taylor v. Taylor(!), Jassel M. R. adopt(; d the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time.\n\nIt was applied by the Privy Council, in Nazir Ahmed v. Emperot(') and later by this Court in several cases(\"), to a Magistrate making a record under ss. 164 and 364 of the Code of Criminal Procedure.\n\n1898. This rule squarely applies \"where, indeed, the whole aim and obect of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in\n\nmy other. ( 4)\" The rule will be attracted with full force in the present case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision.\n\nIntention of the legislature to prohibit the verification of the surrender in a manm:r other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the >umndcr and rendered it 11011-est for the purpose of s. 5 (3 )(b).\n\nFor these reasons, we affirm the judgment of the High Court .and dismiss the appeals with one set of costs.\n\nP.B.R Appeals dismissed.\n\n( 1) [1876] Ch. D. 426.\n\n(2) L. R. 63 I. A. 372-AIR 1936 P. C. 253.\n\n(3) Shiv Balzadur Singh v. State of U. P. [1954] S.C.R. 1098: Deep Chandv. State of Rajasthan [1962[ S.C.R. 662.\n\n(4) Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-363.", "total_entities": 58, "entities": [{"text": "RAMCHANDRA KESHA V ADKE & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "RAMCHANDRA KESHAV ADKE & ORS", "offset_not_found": false}}, {"text": "March 4, 1975", "label": "DATE", "start_char": 64, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "March 4, 1975\n\n[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 80, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 99, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 118, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Bombay Tenancy Act", "label": "STATUTE", "start_char": 137, "end_char": 155, "source": "regex", "metadata": {}}, {"text": "Section 5(3)", "label": "PROVISION", "start_char": 190, "end_char": 202, "source": "regex", "metadata": {"linked_statute_text": "Bombay Tenancy Act", "statute": "Bombay Tenancy Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 1033, "end_char": 1037, "source": "regex", "metadata": {"linked_statute_text": "Bombay Tenancy Act", "statute": "Bombay Tenancy Act"}}, {"text": "Aval Karkun", "label": "OTHER_PERSON", "start_char": 1584, "end_char": 1595, "source": "ner", "metadata": {"in_sentence": "This was dismissed by the Tenancy Aval Karkun."}}, {"text": "Maharasthra Revenue Tribunal", "label": "COURT", "start_char": 1978, "end_char": 2006, "source": "ner", "metadata": {"in_sentence": "The revision application preferred to the Maharasthra Revenue Tribunal by the landlords was dismissed."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 2212, "end_char": 2216, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(3 )(b)", "label": "PROVISION", "start_char": 2596, "end_char": 2607, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(3)", "label": "PROVISION", "start_char": 2961, "end_char": 2968, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(3)(b)", "label": "PROVISION", "start_char": 3101, "end_char": 3111, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 5402, "end_char": 5406, "source": "regex", "metadata": {"statute": null}}, {"text": "CtvrL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5659, "end_char": 5687, "source": "ner", "metadata": {"in_sentence": "CtvrL APPELLATE JURISDICTION : Civil Appeal Nos."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 5868, "end_char": 5879, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and B. R. Agarwa/a, for the •appellants."}}, {"text": "B. R. Agarwa", "label": "LAWYER", "start_char": 5884, "end_char": 5896, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and B. R. Agarwa/a, for the •appellants."}}, {"text": "K. Rajendra Choudhury", "label": "LAWYER", "start_char": 5922, "end_char": 5943, "source": "ner", "metadata": {"in_sentence": "K. Rajendra Choudhury and P. C. Kapur, for the respondent,."}}, {"text": "P. C. Kapur", "label": "LAWYER", "start_char": 5948, "end_char": 5959, "source": "ner", "metadata": {"in_sentence": "K. Rajendra Choudhury and P. C. Kapur, for the respondent,."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 6027, "end_char": 6035, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J.-These appeals by special leave are directed against the common judgment, dated 5.10.1967, of the High Court of Bombay dismissing two Writ Petitions filed by the •appellants to impugn the orders of Maharashtra Revenue Tribunal."}}, {"text": "Haripur", "label": "GPE", "start_char": 6621, "end_char": 6628, "source": "ner", "metadata": {"in_sentence": "102/2, admeasu~~ 8 .acrs and 22 .Gunthas, situated at village Haripur, Taluka Mrra1, D1stnct Sangh m the State of Maharashtra."}}, {"text": "Bhokare", "label": "OTHER_PERSON", "start_char": 7066, "end_char": 7073, "source": "ner", "metadata": {"in_sentence": "The landlord's application however came up before Shri Bhokare, the then Circle Officer.", "canonical_name": "Bhokare'~"}}, {"text": "Mirai", "label": "GPE", "start_char": 7103, "end_char": 7108, "source": "ner", "metadata": {"in_sentence": "of Mirai who after recording the statements of the tenant and the landlord, CTade this order on it."}}, {"text": "Chaware", "label": "OTHER_PERSON", "start_char": 7261, "end_char": 7268, "source": "ner", "metadata": {"in_sentence": "The tenan: Shri Chaware states that the suit land viz."}}, {"text": "18-9-53", "label": "DATE", "start_char": 7849, "end_char": 7856, "source": "ner", "metadata": {"in_sentence": "Act 1948 Haripur 18-9-53."}}, {"text": "M. M. Bhokare", "label": "OTHER_PERSON", "start_char": 7868, "end_char": 7881, "source": "ner", "metadata": {"in_sentence": "Bhokare (M. M. Bhokare) Circle Officer, Sangli.\""}}, {"text": "Sangli", "label": "GPE", "start_char": 7899, "end_char": 7905, "source": "ner", "metadata": {"in_sentence": "Bhokare (M. M. Bhokare) Circle Officer, Sangli.\""}}, {"text": "November 20, 1953", "label": "DATE", "start_char": 7980, "end_char": 7997, "source": "ner", "metadata": {"in_sentence": "Pursuant to the above order, a Panchnama was prepared by the Talati on November 20, 1953, in which it was stated that the possession of this tenancy land had been given to the landlord."}}, {"text": "April 23, 1959", "label": "DATE", "start_char": 8351, "end_char": 8365, "source": "ner", "metadata": {"in_sentence": "On April 23, 1959, the landlord sold this land to appellants 3 and 4 and respondents 2 and 3."}}, {"text": "9-11-1959", "label": "DATE", "start_char": 8446, "end_char": 8455, "source": "ner", "metadata": {"in_sentence": "On 9-11-1959, the tenant made an applicafron against th.:"}}, {"text": "22-11-1961", "label": "DATE", "start_char": 9226, "end_char": 9236, "source": "ner", "metadata": {"in_sentence": "Both these grounds found favour with the Tenancy Aval Karkun, and he dismissed foe tenant's application by an order dated 22-11-1961."}}, {"text": "18-9-1953", "label": "DATE", "start_char": 9435, "end_char": 9444, "source": "ner", "metadata": {"in_sentence": "The tenant preferred another appeal also, to the Deputv Collector against the order, dated 18-9-1953, of the Circle Officer, Mr. Bhokare, whereby the tenant's name was deleted from the record of rights."}}, {"text": "Bhokare'~", "label": "OTHER_PERSON", "start_char": 9584, "end_char": 9593, "source": "ner", "metadata": {"in_sentence": "The Deputy Collector held that Shri Bhokare'~ Order was not an order nassed by a Mamlatdar as required by the Tenancy law and, consequently, it was without jurisdiction and void.", "canonical_name": "Bhokare'~"}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 10561, "end_char": 10581, "source": "ner", "metadata": {"in_sentence": "The landlords and their transferees thereupon moved the High Court of Bombay by two writ petitions under Article 227 of the Constitution for impugning the revisional orders of the Tribunal."}}, {"text": "Article 227", "label": "PROVISION", "start_char": 10610, "end_char": 10621, "source": "regex", "metadata": {"statute": null}}, {"text": "Septemb<r 18, 1953", "label": "DATE", "start_char": 11328, "end_char": 11346, "source": "ner", "metadata": {"in_sentence": "The Deputy Collector and the Tribunal have concurrently answered this question in the negative on the threefold ground : (i) That the so-called surrender was a sham transacti'on because the tenant continued thereafter to be in possession and paid rent to the landlord upto 1959; (ii) That Circle Officers were not empowered to dispose of tenancy cases and as such Shri Bhokare's order, dated Septemb<r 18, 1953, was without jurisdiction and (iii) That the surrender had not been verified as required by law."}}, {"text": "s.5(3)", "label": "PROVISION", "start_char": 11757, "end_char": 11763, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Tenancy Act, 1953", "label": "STATUTE", "start_char": 11771, "end_char": 11795, "source": "regex", "metadata": {}}, {"text": "Section 5(3)(b)", "label": "PROVISION", "start_char": 11862, "end_char": 11877, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy Act, 1953", "statute": "the Bombay Tenancy Act, 1953"}}, {"text": "section 5", "label": "PROVISION", "start_char": 12379, "end_char": 12388, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy Act, 1953", "statute": "the Bombay Tenancy Act, 1953"}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 13203, "end_char": 13208, "source": "ner", "metadata": {"in_sentence": "Desai, learned Counsel for the appellants contends that the provisions of Rule 2-A are directory and not mandatory; that in any case there has been a substantial compliance with the requirements\n\no~ the relevant provisions of the Act and the Rule."}}, {"text": "Campell", "label": "OTHER_PERSON", "start_char": 14538, "end_char": 14545, "source": "ner", "metadata": {"in_sentence": "No universal rule\", said Lord Campell\" ( 1) can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience."}}, {"text": "Prior to the enactment of the Bombay Tenancy Act, 1939", "label": "STATUTE", "start_char": 15121, "end_char": 15175, "source": "regex", "metadata": {}}, {"text": "Chapter II of the Act", "label": "STATUTE", "start_char": 15999, "end_char": 16020, "source": "regex", "metadata": {}}, {"text": "Sections 5 and 15", "label": "PROVISION", "start_char": 16055, "end_char": 16072, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "Section 5(2)", "label": "PROVISION", "start_char": 16510, "end_char": 16522, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "12-1-1953", "label": "DATE", "start_char": 17049, "end_char": 17058, "source": "ner", "metadata": {"in_sentence": "The Bombay (Amendment) Act 33 of 1952, which came into force on 12-1-1953, recast this provision and hedged round the surrender with effective sa(eguards."}}, {"text": "s.5(3)(b)", "label": "PROVISION", "start_char": 17272, "end_char": 17281, "source": "regex", "metadata": {"statute": null}}, {"text": "s.5(3)(b)", "label": "PROVISION", "start_char": 17412, "end_char": 17421, "source": "regex", "metadata": {"statute": null}}, {"text": "s.5(3)(b)", "label": "PROVISION", "start_char": 18396, "end_char": 18405, "source": "regex", "metadata": {"statute": null}}, {"text": "Vlr. Desai", "label": "OTHER_PERSON", "start_char": 19939, "end_char": 19949, "source": "ner", "metadata": {"in_sentence": ":Vlr."}}, {"text": "Jassel", "label": "JUDGE", "start_char": 20503, "end_char": 20509, "source": "ner", "metadata": {"in_sentence": "Jassel M. R. adopt(; d the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden."}}, {"text": "ss. 164 and 364", "label": "PROVISION", "start_char": 20905, "end_char": 20920, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 20928, "end_char": 20954, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5", "label": "PROVISION", "start_char": 21650, "end_char": 21654, "source": "regex", "metadata": {"statute": null}}, {"text": "L. R. 63 I. A. 372", "label": "CASE_CITATION", "start_char": 21829, "end_char": 21847, "source": "regex", "metadata": {}}, {"text": "Maxwell", "label": "OTHER_PERSON", "start_char": 21987, "end_char": 21994, "source": "ner", "metadata": {"in_sentence": "(4) Maxwell's Interpretation of Statutes, 11th Edn.,"}}]}
{"document_id": "1975_3_846_853_EN", "year": 1975, "text": ":846\n\nSHRI P. 13.\n\nMAHENDRA MILLS LTD.\n\nDESAI, APPELLATE ASSISTANT COMMISSiOl~ER\n\nOF INCOME TAX AND ANR.\n\nMarch 4, 1975\n\n[V. R. KRISHNA IYER, R. s. SARKARIA AND A. c. GUPTA, JJ.] B\n\nJnconw-Tax Act, 1961-5, 35-Scope of-Record of appeal-Mcn11i11g of.\n\nI~ the course of assessment of the income of the assessee for the year 1959-60 the Income-tax Officer found a discrepancy betwee11 the value of its .closing stock which was shown in its books as Rs. 5.89 lakhs a?d the records of the State Bank in which it was shown as Rs. 8.04. lakhs. 1 he Income-tax Officer rejected the explanation of the assessee regarding the discrepancy an.d C worked out the closing stock at Rs. 8.04 lr.khs.\n\nWhen the assessee's appeal against th's order was pending before the Tribunal, the Income-tax O_ffictr took up for assessment the income of the assessee for the assessment year\n\n?960-61.\n\nRejecting the contention of the asscssee that the opemng stock for the assessment year should be taken to be Rs. 8.04 lakhs but the Income-tax Officer took it as Rs. 5.89 lakhs.\n\nOn Appeal the Appellate Assistant Com. missioner accepted the contention of the assessee and reversed the decision of the Income-tax Officer.\n\nNeither party appealed against this order. Later. however, the Tribunal accepted the explanation of the assessee in regard to D the discrepancy in the closing stock for the assessment year 1959-60 rn1d h~B that the closing stock should be taken as Rs. 5.89 lakhs as shown in its booh.\n\nThereupon the Income-tax Officer moved the Appellate Assistant Commissioner to rectify his order relating to the assessment year 1960-61 and bring it in conformity with the Tribunal's order.\n\nThe Appellate Assistant Commissioner accordingly passed an order.\n\nThe assessee then inoved the High Court under Art. 226 of t .. e Constitution E alleging that the Appellate Assistant Commissioner had overstepped the juri:,- diction conferred under s. 35 of the Income-tax Act. The HiRh Court dismissed the petition.\n\nOn appeal to this Court it was contended that the words 'record of apr<cal' in s. 35 of the .Act would mean the record fr the assessment ycm J 960-6: and not the entl!e r•ecord of the asessee relatmg to the earlier years as also\n\nf later yea!s; and (2). he Appellate. Assistant Comissio~1er had no jurisdic F t1on to rectify hr.s dec1s1on by referring to something which took place four years after that dcc1s1on.\n\nDismissing the appeal.\n\nHELD : ( 1) For the purpose of ascertaining the true s:ock position tile rec?r'.1 of the assessment for assessment year 1959-60, including 1he \"{ribunal's dec1s10n, y.:as not extraneous r:ir irrelevant to the record of the appeal and could leg1timately. be loo~.ed mto .bY the Appellate Assistant Conwis, ioncr G for the purpose or correcting the m1slake.\n\n[852C]\n\nS!nce the closing stock of .one assessment year furnishes the figure of 11-, 0 opei:img stock for the succee.drng year it follows !hat the record ; howin\" ti:, clos!llg stock of assessment year 1959-60 formed a part of the evidence relva~~ to the a; isessment for. assessment y~r 196-0-61.\n\nTo the extent of ascertninine the closmg and opet1'ng stock pos1t10ns, the two assessments telescoped : 1 - each other.\n\nThe Tribunal's finding that the value of the closing stock 'to~ ?ssessment year 1959-60 hd completely replaced the Income-tax Officer's findm!!\n\n10 regard o that fact with effect from the date of the Jncome-t Offi :.~ e>rder relatmg to the assessment year 1959-60.\n\nIf the Jncome-t:: Offi~~<\n\nI ...\n\nJ\\IAHENDRA MILLS V, P. B. DESAI (Sarkaria, !.) 847\n\norder relating to assesoment year 1959-60 was relevant to and part of tile 'record of appeal' the TribuJ!al's decision which st, perseded that finding Wes equally so within the contemplation of s. 35 of the Act.\n\n[851G-H]\n\n(2) The finding of the Tribunal as to the valuation of stock, although recorded sabsequent to the appellate decision of the Appellate Assistant Commissioner, could be taken as forming part of the record of the appeal and taken into accotmt for the purpose of correcting the mJstake nnder s. 35, as to the value of the opening stock for the assessment year 1960-61, apparent from that reord. [853B]\n\nC£•mmissio11er of I11come-tax v. Kliem Chand Ramdas 61 I.T.R. 41~-LR. 65 I.A. 236, referred to.\n\nMis. Malwran Mills (Pril'ilte) Ltd. v. The l11co111e-tax O.fficer, l'orbandar (1959] Suppl. 2 S.C.R. 547 and M. K. Venkatacha/am v.\n\nBombay Dyeing & Mfg. Co. Ltd., (1959] S.C.R. 703, followed.\n\n(3) There is no room for apprehension that the income-tax authoritie.s. under the gu.ise of correcting mistakes lightly reopen assessments long past and olosed and thus introduce an element of instability in the administration of the Act.\n\nA decision is a precedent on its own facts.\n\nEach case presents its own features The Income-tax authorities and the Tribunals are supposed to a>pp!y the 1-ricio of a decision to the. facts of particular cases with due care and discernment, bearing in mind the restricted scope of their jurisdiction under s. 35 and the object for which it is onferred. [853F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1793 of 1970.\n\nFrom the judgment and order dated 24th June, 1970 of the Gujarat High Court in Special Civil Applicatioia No. 1259 of 1969.\n\nS. T. Desai and I. N. Shroff, for the appellant.\n\nT. A. Ra111aclw11dra11 and S. P. Nayar, for the respo'ddents.\n\nThe Judgment of the Court was delivered by\n\nSARKAR!/'>, J.\n\nThis appeal directed against the judgment, datd 24.6.1970, of the High Court of Gujarat raises a question in regard to the interpretation of s.35 of the Indian Income-tax Act, 1922 (for short. called the Act). ·\n\nThe assessee is a Limited Company which manufactures textiles in its Mill.\n\nFor the assessment year 1959-60, the assessee showed in its books the value of its closing stock at Rs. 5,89,439 /-. The Iincome-tax Officer in the course of the assessment, .detected that there was some discrepancy between the value of the stock of cotton shown in the books of the assessee and the' records of the State Bank of India with which it had hypothecated that stock.\n\nThe assessee tried to explain away this discrepancy by saying that it had given an incorrect figure of its stock to the Bank with a view to obtain higher amount of over-draft.\n\nThe Income-tax Officer rejected this explanation and added Rs. 2,14,682/- to the value of the stock so that according to his assessment, the closing stock for the assessment year 1959-60 worked out to Rs. 8,04,121/-. Having'failed in first appeal before the Appellate Assistant Commissioner, the assessee preferred a second appeal to the Tribunal.\n\n?ending the appeal before the Tribunal, the Income-tax Offier\n\ntc,:,1~ up the assessment of its income for the !1ext assessm<mt year i.e.\n\nJ 960-01.. The asscssee contended that openmg stock for the assessment year 1960-1961 should be taken as Rs. 8,04,121/-. The Incomet::.x Officer rejected this contention and took up the opening stock for that assessment year at Rs. 5,89,439 /- without making the addition of Rs. 2, 14,682/-· Agai,1st this order of the Income-tax Officer, the asse...; sce went in appeal before the Appellate Assistant Commissioner who, on 30.6.1965, accepted the same. clespicc opposition from the\n\nJ I'coi;:e-tax Officer who had pcrsonaily appeared there to defeml his order and held thnt the opening stock for the asscs, ment year 1960- . 1961 be taken at Rs. 8,04,121/-. Neither party appealed against\n\nthis Prcler before the Tribunal.\n\nOn January 22, 1969, the Tribunal allowed the assessee's appeal referred to above relati'.1g to the assessment year, 1959-60, and accepted the assessee s explanation about the discrepancy relafa1g to the value of stocks between its account-books and those of the Bank. The Tribunal directed that the addition of Rs. 2, 14,682/- made by the lncome-tax Officer to the closing stock relating to the assessment year ! 959-60 be deleted.\n\nThus, according to the Tribunal's decision, the closing stock for the assessment year 1959-60 (which would ialso be the opening stock for the succeeding year) was Rs. 5,89,439 / as shown in the boob of the assessee.\n\n11rnreafter on March 26, 1959, the Income-tax Officer moved the Appellate Assis1ant Commissioner requesting that the latter's appellate crder, elated 30.6.1965, relating to the assessment year 1960-61 be\n\nrrtified and brought in conformity with the Tribunal's order.\n\nThe Appellate Assistant Commissioner then issued a <aotice under ::: 154 of the Act to the assessec to show cause why the appellate order. dated 30.6.1965, be not rectified under s.35 of the Act.\n\nDespite objectioi1 frc:11 the asscsscc, on 28.6.1969, the Appellate As-; ist; mt Commissioner passed an order for rectifying his decision elated 30.6.1965 The order of rectification runs thus :\n\n\"_ ... in the instant case there is a mistake apparent from\n\nrcord of appeal as pointed out ia the I.I.O's letter clntcd 26.3.69 mentioned above.\n\nThe appellate order whicl1 is now souglit to be rectified, was passed on 30.6.65. The rectification is therefore in time.\n\nAccordingly I direct that the value of opening stock for the A.Y. 60-61 be taken at Rs. 5,89,439/-, being equal to the value of the closing stock determined by the Tribunal for the A.Y. 1959-60. Therefore, the relief of Rs. 2,14,682 /- given to the assessee in the origiaal appellate orper, elated 30.6.1965, stands cancelled.\n\nThe ITO is directed to give effect to this order.\"\n\nThe assessee then impugned this order by a writ petition under .Article 226 of the Constitution before the Gujarat High Court, on the giround that the, Appellate Assistant Commissioner had overstepped tl1e jurisdiction conferred on him under s.35 of the Act.\n\nThe High Court dismissed the petition.\n\nHence this appeal.\n\n• D\n\nl\\!AHENDRA MILLS \\', P. B. DESAI (Sarkaria, J.) 84 9\n\nBefore the High Court, the assessee raised two contentions which have beea re-agitated before us.\n\nThey are : (i) The Appellate Assistant Commissioner had no jurisdiction to make the impugned order because there was no misrake apparent \"from the record of the appeal\" within the contemplation of s.35 of the Act. (ii) Assuming that the words \"record of the appeal\" in s.35 were comprehensive enough to include the record of other related proceedings, the Appellate Assistant Commissioner had no jurisdictioa to rectify his decision dt. 30.6.65, by referring to some thing which actually and factually took place four years after that decision.\n\nElaborating his contentions, Mr. Desai submits that in the context of the present case, the words \"record of the appeal\" in s.35 would mean the record for the assessment year 1960-61 which the Appellate Assistant Commissid.1er had actually before him at the time of hearing of the appeal and not the entire record of the assessee relating to the\n\ncarli<:r years and a fortiori of later years.\n\nSuch appellate record, it is mentioned, had no apparent error which could be rectified under s.35.\n\nThe argument proceeds, that the order of the Tribunal for the assessment year 1959-60, made on 22.1.1969-whieh gave rise to the mistake-was something subscqueJ.1t and extraneous and could not, by any stretch of language, be called a part of the \"record of the appeal\"\n\nrehting to the assessment year 1960-61. Support for this contention has been sought from a decision of the Mysore High Court in. Ganapathi Subbaraya Hegde v. State of Mysore,(1) which proceeds on an interpretation of s.37 of the Mysore Agricultural Income-tax Act.\n\nLearned Counsel has tried to disHaguish the decision of this Court in M/s. Mahrana Mills (Private) Ltd. v.\n\nThe Income-tax Officer.\n\nPorbandar(2) on the two-fold ground\n\n(i) that that was a case of depreciation in which the written-down value had to be calculated with reference to the record of past years, and (ii) unlike the present case, there, the error was in existence and apparent from the record of the appeal at the time of its decision. It is argued that-Maharana Mills' case (>upra) was not one where the mistake was-rectified with reference to something happening subsequently to the original decision of the Appellate Assistant Commissioner.\n\nAttempt has also been made to distinguish the Privy Council decision in Commissioner of Incometax v. Kliem Chand Ramdas(8 ) on the ground that there the mistake hJd become apparent as a result of the cancellation of registration of\n\nthe~ assess<:e firm in revision under s. 33 of the Act.\n\nAs against this, Mr. Ramachandran, learned Counsel for the Revenue submits that the \"record of the appeal\" spoken of in s.35 is the . entire evidence which could be looked into by the Appellate Assistant Commissioner for the purpose of the appeal.\n\nSince the closing stock of one year and the opening stock of the succeeding year must necessarily be the same, the record of the assessment year 1959-60, was also relevant and therefore, a part of the record of the appeal arising out of the assessment for 1960-61. It is further canvased that the\n\n(I) 84 I.T.R. 523.\n\n(2) [1959] Supp. 2, S.C.R. 547.\n\n(3) 61, I. T. R. 414- LR. 65 T. A. 236.\n\n8-564SCI 175\n\nTribunal had for the I.T.O's frading as to the value of the closing stock for the assessment year 1959-60 being Rs. 8,04,121/- completely substituted its own finding regarding such v•alue being Rs. 5,89, 439 /-, with effect from the date of I.T.O's order, and thus the Tribunal's order, though passed subsequently, had, wit~ retrospec.:tive effect, become a part of the record of the appeal relatmg to the assessment year l 960-61, which could legitimately be looked int~ y the Apllate Assistant Commissioner for the purpose of asccrtammg and rect1fyr,1g the mistake in his appellate decision.\n\nRelia1cc has been placed on the decisions of this Court in Maharana Mills (P) Ltd. v. Income-tax Officer, Porbandar (supra) and that of the Privy Council in Commi.i sioner of Income-tax v. Khemchand Ramdas (supra).\n\nThe material part of s.35 is in these terms :\n\n\"35 ( 1). The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or in the case of the Commissioner in revision under Section 33A and the Income-Tax Officer may, at any time., within four years from the dat1~ of any assessme1t order or refund order passed by\n\nhim on bis own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee ... \"\n\n 111e crucial words arc those that have been underlined.\n\nThe interpretation of the words \"record of appeal\" is not a matter which is res integra.\n\nIt came up for consideration before '.his Court in Maharana Mills case (Supra). The appellant therein (hereinafter called the Mills) was assessed to income-tax for the assessment year\n\n1953-54 and by an order of June 30, 1955, the J.T.0. allowd depreci<ttbn under s. 10(2) (vi) of the Act in the amount of Rs. 3,48,105/-.\n\nOn August 8, J 955, the Mills made an application before the I.T.0. for rectification of the order under s.35 of the Act pointing out certain mistakes in calculations of the depreciation amount. The Incomctax Officer by his order, dated February 27, 1956, corrected the \"written down value\" of the differe,1t properties of the Mills and detem1ine<l the total allowable depreciation to be Rs. l ,94,074/-. The Mills challenged this order of rectification on several grounds two of tl!Jem. which arc material for our purpose, were: (a) that the provision of s.35 under which the Income-tax Officer had acted, was not mean, t for the purpose of making corrections in written down values, the correct provision being s.34 which specifically refers to excessive depreciatiou. :v.id (b) that, in any case, he had exceeded his jurisdiction under .s.3:> in calculating the depreciation on the written down value of the buildings and machinery of the appellant acting s110 motu and that he could corre. ' only those mistakes which had been pointed out by the milfa.\n\nThe arsument was tbr: recalculation is not rectifying a mistake which is apparent from the record. This Court negatived these contentions with thi~ observation :\n\n\"1 he words used in the section are \"apparent from the <ecord\" aud the record docs not mean only the order of assessment but it comprises all proceedings on which the assessment order is based and the Income-tax Officer is ci,1titled for the purpose of exercising his jurisdiction unde_r s.35 to look into the whole evidence and the law applicable to asccnain whether there was an error. If he dollbls the Written Down Value of the previous year it is open to him to check up the previous calcul?''' :·, s and if he finds any mistake it is open to him to make fresh calculations in accordance with the Jaw applicable including the Rules made thereunder.\"\n\nThis Court then noticed Venkatachalam's case(1) and Khem Chand's case (supra) in support of the view taken by it.\n\nCounsel for the then appellant sought to distinguish these cases on the ground that the record there considered was the assessment record of that year and the Income-tax Officer did not have to go to the records of the previous year. This argument was repelled in these terms :\n\n\"That is a distinction without a difference.\n\nJf, for instance, the Income-tax Officer had found that in the assessment year 1952-53 there was an apparent arithmatic mistake in the account of the Written Down Value of the prope11ies which resuited in a correspondin.~ ; i1i, take in the asscssl)lent of ·, he year in controversy could he not take the corrected figure for the purposes of the assessment and could it be said that the mistake was not apparent from the record. A fortiori if he discovered that the very basis of the different assessments \\vas erroneous because of an initial mistake in determining the\n\nWritten Down Value could it be said that this v.-uuld not be a mistake apparent from the record.\n\nAnd if' in order to determine the correct Written Down Value the Income-tax Officer makes correct calculations, can it be said that that is not rectifying a mistake apparent from the record but de110rs it.\"\n\nThe observations of this Court, quoted above, fully apply to the facts of the case in hand. It will bear repetition that the closing stock for the assessment year 1959-60 as entered in the books of the assesscc. was Rs. 5,89,439/-, and as found by the Income-tax Officer wa;~ Rs. 8,04,121/-. Since the closing stock of one assessment year furnishes the figure 'Of the opening stock for the succeeding year, it follows that the record showing the closing stock of assessment yen 1959-60 formed a part of the evidence relevant to the assessment for the assessment year 1960-61. Thus to the extent of ascertaining the closing and opening stock p0sitions, the two assessments telescoped into each other. Jndeed, it was on this basis that the Appellate Assistant Commissioner had by his decision dated 30-6-1965 allowed the assessee's appeal regarding A.Y. 1960-61. The Tribunal's finding,\n\n(I) !1959] S.C.R. 703.\n\nSUPREME COURT REPORTS [1975] 3 S.C.lll.\n\nthat the value of the closing stock for A.Y. 1959-60 should be Rs. 5,89,439/-, had completely replaced the Income-tax Office:r's finding in regard to th'at fact with effect from the date of the Incometax Officer's order relating to A.Y. 1959-60. If the I.T.0.'s finding with regard to the closing stock for A.Y. 1959-60 was relevant to and part of the \"record of appeal\", the Tribunal's decision which superseded that finding, was equally so within the contemplation of s.35 of the Act.\n\nIt cannot be gainsaid that the mistake in regard to the opening stock for A.Y. 1960-61 being Rs. 8,04,121/-, was quite apparent when the Appellate Assistant Commissioner undertook to rectify his aJ?pellate. order dated 3~-6--65, te correct figure of valuation finally determmed by the Tnbunal bemg Rs. 5,89,439/-.\n\nThus considered, it is clear that or the purpose of ascertaining the true stock position the record of the assessment for A.Y. 1959-60, including the Tribunal's decision, was not extraneous or irrelevant to the record of the appeal and could legitimately be !o'Oked into for the purpose of correcting the mistake by the Appellate Assistant Commissioner.\n\nThus the first contention of the appellant stands overruled.\n\nThe second point canvassed by Shri Desai is well-nigh covered D by the ratio of the privy Council decisions in Khem Chand's case (supra). The assessee in that case did not produce his account books and the lncume tax Officer made an assessment on the 'best-judgmmt basis'.\n\nOn the application of the assessee, however, he allowed registration of the assessee-firm on January 17, 1927.\n\nAs it was a registered firm, he did not in the assessment order made under s.23(4) on the same day, assess any super-tax. The Ccmmissioner of E Income-tax in exercise of his powers under s.33 of the Act, called for the record, cancelled the registration on January 28, 1927, and\n\ndirected the I.T, O. to take necessary consequential action.\n\nThe result was that by an order, dated May 4, 1929, the assessee was assessed to super-tax. Three days later, a demand notice was issued.\n\nOn these facts, ddivering the opinion of the Judicial Committee, Lord Romer made these pertinent observations in regard to the applicability F of s.35 :\n\n\"in their Lordship's opiniun, the case clearly would have fallen within the provisions of section 35 had the Incometax Officer exercised his powers under the section within one year from tne date on which the earlier demand was served upon the respondents. For, looking at the record c of the assessments made upon them as it stood after the cancellation of the respondent's registration-and the order affecting the cancellation would have formed part of the record-it would be apparent that a mistake had been made in stating that no super-tax was leviable.\"\n\nFrom the quotes above, it is evident that the Judicial Committee H considered the order of the Commissioner cancelling the registration of the assessee's firm-although passed about 11 days after the\n\noriginal assessment-to have formed part of the record of the assessment, for the purpose of rectifying the mistake as a mistake apparent from the record of the case.\n\nOn parity of reas(ming, in the instant case, the finding of the Tribunal as to the valuataion of the stock, although recorded subsequently to the appellate decision of the Appellate Assistant Commissioner, could be taken as forming part of the record of appeal and taken into account for the purpose of correcting the mistake, under s.35, as to the value of the opening stock for A.Y. 1960-61, apparent from that record. ,\n\nWe do not want to overburden this judgment by a discussion of Ganapatho Subbaraya Hegde's case (supra) cited by Shri Desai.\n\nSuffice it to say that this was a case under s.37 of the Mysore Agricultural IncC1llle-tax Act, 1957.\n\nThe notice for rectification issued in that case and the orciers of the authority were found to be defective in as much as they did not state that there was any mistake apparent on the record of the assessment proceedings for the previous three years in question.\n\nMaharana Mills' case and Khemchand's case\n\n(supra) were not noticed by the High Court in that case.\n\nLastly, Shri Desai urged that we should not lose sight of the startling results which might flow from a liberal interpretation of s.35. It is apprehended that if the phrase \"record of the appeal\" is widely interpreted so as to cover the records of all collateral proceedings and subsequent events, it would leave the door wide open to endless harassment of assessees; the income-tax authorities would under the guise of correcting mistakes, lightly reopen assessments long past and closed, and thus introduce an element of disconcerting instability in the administration of the Act.\n\nIn our opinion, there is no worn for any such apprehension. It must be remembered that a decision is a precedent on its own facts.\n\nEach case presents its own features. The income-tax authorities and Tribunals are supposed to apply the ratio of a decision, to the facts of particular cases with due care and discernment, bearing in mind F the restricted scope of their jurisdiction under s.35 and the object for which it is conferred.\n\nThe appeal fails and is dismissed with costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 74, "entities": [{"text": "LTD.\n\nDESAI, APPELLATE ASSISTANT COMMISSiOl~ER\n\nOF INCOME TAX AND ANR", "label": "RESPONDENT", "start_char": 34, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "P.B. DESAI, APPELLATE ASSISTANT COMMISSIONER OF INCOME TAX AND ANR", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 122, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. s. SARKARIA", "label": "JUDGE", "start_char": 142, "end_char": 156, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. c. GUPTA, JJ.", "label": "JUDGE", "start_char": 161, "end_char": 177, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Jnconw-Tax Act, 1961", "label": "STATUTE", "start_char": 182, "end_char": 202, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1785, "end_char": 1793, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35", "label": "PROVISION", "start_char": 1922, "end_char": 1927, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 1935, "end_char": 1949, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 35", "label": "PROVISION", "start_char": 2070, "end_char": 2075, "source": "regex", "metadata": {"statute": null}}, {"text": "J\\IAHENDRA MILLS", "label": "PETITIONER", "start_char": 3507, "end_char": 3523, "source": "ner", "metadata": {"in_sentence": "If the Jncome-t:: Offi~~<\n\nI ...\n\nJ\\IAHENDRA MILLS V, P. B. DESAI (Sarkaria, !.)"}}, {"text": "P. B. DESAI", "label": "RESPONDENT", "start_char": 3527, "end_char": 3538, "source": "ner", "metadata": {"in_sentence": "If the Jncome-t:: Offi~~<\n\nI ...\n\nJ\\IAHENDRA MILLS V, P. B. DESAI (Sarkaria, !.)", "canonical_name": "P. B. DESAI"}}, {"text": "s. 35", "label": "PROVISION", "start_char": 3753, "end_char": 3758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35", "label": "PROVISION", "start_char": 4070, "end_char": 4075, "source": "regex", "metadata": {"statute": null}}, {"text": "LR. 65 I.A. 236", "label": "CASE_CITATION", "start_char": 4247, "end_char": 4262, "source": "regex", "metadata": {}}, {"text": "s. 35", "label": "PROVISION", "start_char": 5017, "end_char": 5022, "source": "regex", "metadata": {"statute": null}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 5260, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and I. N. Shroff, for the appellant."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 5276, "end_char": 5288, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and I. N. Shroff, for the appellant."}}, {"text": "T. A. Ra111aclw11dra11", "label": "LAWYER", "start_char": 5310, "end_char": 5332, "source": "ner", "metadata": {"in_sentence": "T. A. Ra111aclw11dra11 and S. P. Nayar, for the respo'ddents."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 5337, "end_char": 5348, "source": "ner", "metadata": {"in_sentence": "T. A. Ra111aclw11dra11 and S. P. Nayar, for the respo'ddents."}}, {"text": "SARKAR!/", "label": "JUDGE", "start_char": 5417, "end_char": 5425, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKAR!/'>, J.\n\nThis appeal directed against the judgment, datd 24.6.1970, of the High Court of Gujarat raises a question in regard to the interpretation of s.35 of the Indian Income-tax Act, 1922 (for short.", "canonical_name": "SARKAR!/"}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 5499, "end_char": 5520, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKAR!/'>, J.\n\nThis appeal directed against the judgment, datd 24.6.1970, of the High Court of Gujarat raises a question in regard to the interpretation of s.35 of the Indian Income-tax Act, 1922 (for short."}}, {"text": "s.35", "label": "PROVISION", "start_char": 5574, "end_char": 5578, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 5586, "end_char": 5613, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "State Bank of India", "label": "ORG", "start_char": 6038, "end_char": 6057, "source": "ner", "metadata": {"in_sentence": "The Iincome-tax Officer in the course of the assessment, .detected that there was some discrepancy between the value of the stock of cotton shown in the books of the assessee and the' records of the State Bank of India with which it had hypothecated that stock."}}, {"text": "s.35", "label": "PROVISION", "start_char": 8589, "end_char": 8593, "source": "regex", "metadata": {"statute": null}}, {"text": "30.6.65", "label": "DATE", "start_char": 9022, "end_char": 9029, "source": "ner", "metadata": {"in_sentence": "The appellate order whicl1 is now souglit to be rectified, was passed on 30.6.65."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 9516, "end_char": 9527, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 9559, "end_char": 9577, "source": "ner", "metadata": {"in_sentence": "The assessee then impugned this order by a writ petition under .Article 226 of the Constitution before the Gujarat High Court, on the giround that the, Appellate Assistant Commissioner had overstepped tl1e jurisdiction conferred on him under s.35 of the Act."}}, {"text": "s.35", "label": "PROVISION", "start_char": 9694, "end_char": 9698, "source": "regex", "metadata": {"statute": null}}, {"text": "P. B. DESAI", "label": "JUDGE", "start_char": 9798, "end_char": 9809, "source": "ner", "metadata": {"in_sentence": "• D\n\nl\\!AHENDRA MILLS \\', P. B. DESAI (Sarkaria, J.) 84 9\n\nBefore the High Court, the assessee raised two contentions which have beea re-agitated before us.", "canonical_name": "P. B. DESAI"}}, {"text": "Sarkaria", "label": "JUDGE", "start_char": 9811, "end_char": 9819, "source": "ner", "metadata": {"in_sentence": "• D\n\nl\\!AHENDRA MILLS \\', P. B. DESAI (Sarkaria, J.) 84 9\n\nBefore the High Court, the assessee raised two contentions which have beea re-agitated before us.", "canonical_name": "SARKAR!/"}}, {"text": "s.35", "label": "PROVISION", "start_char": 10127, "end_char": 10131, "source": "regex", "metadata": {"statute": null}}, {"text": "s.35", "label": "PROVISION", "start_char": 10199, "end_char": 10203, "source": "regex", "metadata": {"statute": null}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 10509, "end_char": 10514, "source": "ner", "metadata": {"in_sentence": "Elaborating his contentions, Mr. Desai submits that in the context of the present case, the words \"record of the appeal\" in s.35 would mean the record for the assessment year 1960-61 which the Appellate Assistant Commissid.1er had actually before him at the time of hearing of the appeal and not the entire record of the assessee relating to the\n\ncarli<:r years and a fortiori of later years."}}, {"text": "s.35", "label": "PROVISION", "start_char": 10600, "end_char": 10604, "source": "regex", "metadata": {"statute": null}}, {"text": "s.35", "label": "PROVISION", "start_char": 10963, "end_char": 10967, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 11346, "end_char": 11363, "source": "ner", "metadata": {"in_sentence": "Support for this contention has been sought from a decision of the Mysore High Court in."}}, {"text": "s.37", "label": "PROVISION", "start_char": 11456, "end_char": 11460, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 11488, "end_char": 11502, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Maharana Mills", "label": "ORG", "start_char": 11971, "end_char": 11985, "source": "ner", "metadata": {"in_sentence": "It is argued that-Maharana Mills' case (>upra) was not one where the mistake was-rectified with reference to something happening subsequently to the original decision of the Appellate Assistant Commissioner."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 12433, "end_char": 12438, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramachandran", "label": "OTHER_PERSON", "start_char": 12473, "end_char": 12485, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. Ramachandran, learned Counsel for the Revenue submits that the \"record of the appeal\" spoken of in s.35 is the ."}}, {"text": "s.35", "label": "PROVISION", "start_char": 12572, "end_char": 12576, "source": "regex", "metadata": {"statute": null}}, {"text": "s.35", "label": "PROVISION", "start_char": 13939, "end_char": 13943, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33A", "label": "PROVISION", "start_char": 14167, "end_char": 14178, "source": "regex", "metadata": {"statute": null}}, {"text": "June 30, 1955", "label": "DATE", "start_char": 14919, "end_char": 14932, "source": "ner", "metadata": {"in_sentence": "The appellant therein (hereinafter called the Mills) was assessed to income-tax for the assessment year\n\n1953-54 and by an order of June 30, 1955, the J.T.0."}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 14971, "end_char": 14979, "source": "regex", "metadata": {"statute": null}}, {"text": "August 8, J 955", "label": "DATE", "start_char": 15033, "end_char": 15048, "source": "ner", "metadata": {"in_sentence": "On August 8, J 955, the Mills made an application before the I.T.0."}}, {"text": "s.35", "label": "PROVISION", "start_char": 15135, "end_char": 15139, "source": "regex", "metadata": {"statute": null}}, {"text": "February 27, 1956", "label": "DATE", "start_char": 15267, "end_char": 15284, "source": "ner", "metadata": {"in_sentence": "The Incomctax Officer by his order, dated February 27, 1956, corrected the \"written down value\" of the differe,1t properties of the Mills and detem1ine<l the total allowable depreciation to be Rs."}}, {"text": "s.35", "label": "PROVISION", "start_char": 15586, "end_char": 15590, "source": "regex", "metadata": {"statute": null}}, {"text": "s.34", "label": "PROVISION", "start_char": 15743, "end_char": 15747, "source": "regex", "metadata": {"statute": null}}, {"text": "s.3", "label": "PROVISION", "start_char": 15870, "end_char": 15873, "source": "regex", "metadata": {"statute": null}}, {"text": "s110", "label": "PROVISION", "start_char": 15989, "end_char": 15993, "source": "regex", "metadata": {"statute": null}}, {"text": "s.35", "label": "PROVISION", "start_char": 16539, "end_char": 16543, "source": "regex", "metadata": {"statute": null}}, {"text": "Venkatachalam", "label": "OTHER_PERSON", "start_char": 16931, "end_char": 16944, "source": "ner", "metadata": {"in_sentence": "This Court then noticed Venkatachalam's case(1) and Khem Chand's case (supra) in support of the view taken by it."}}, {"text": "Khem Chand", "label": "OTHER_PERSON", "start_char": 16959, "end_char": 16969, "source": "ner", "metadata": {"in_sentence": "This Court then noticed Venkatachalam's case(1) and Khem Chand's case (supra) in support of the view taken by it.", "canonical_name": "Khem Chand"}}, {"text": "30-6-1965", "label": "DATE", "start_char": 19021, "end_char": 19030, "source": "ner", "metadata": {"in_sentence": "Jndeed, it was on this basis that the Appellate Assistant Commissioner had by his decision dated 30-6-1965 allowed the assessee's appeal regarding A.Y. 1960-61."}}, {"text": "s.35", "label": "PROVISION", "start_char": 19645, "end_char": 19649, "source": "regex", "metadata": {"statute": null}}, {"text": "January 17, 1927", "label": "DATE", "start_char": 20762, "end_char": 20778, "source": "ner", "metadata": {"in_sentence": "On the application of the assessee, however, he allowed registration of the assessee-firm on January 17, 1927."}}, {"text": "s.23(4)", "label": "PROVISION", "start_char": 20856, "end_char": 20863, "source": "regex", "metadata": {"statute": null}}, {"text": "s.33", "label": "PROVISION", "start_char": 20968, "end_char": 20972, "source": "regex", "metadata": {"statute": null}}, {"text": "January 28, 1927", "label": "DATE", "start_char": 21038, "end_char": 21054, "source": "ner", "metadata": {"in_sentence": "The Ccmmissioner of E Income-tax in exercise of his powers under s.33 of the Act, called for the record, cancelled the registration on January 28, 1927, and\n\ndirected the I.T, O. to take necessary consequential action."}}, {"text": "May 4, 1929", "label": "DATE", "start_char": 21162, "end_char": 21173, "source": "ner", "metadata": {"in_sentence": "The result was that by an order, dated May 4, 1929, the assessee was assessed to super-tax."}}, {"text": "Romer", "label": "OTHER_PERSON", "start_char": 21332, "end_char": 21337, "source": "ner", "metadata": {"in_sentence": "On these facts, ddivering the opinion of the Judicial Committee, Lord Romer made these pertinent observations in regard to the applicability F of s.35 :\n\n\"in their Lordship's opiniun, the case clearly would have fallen within the provisions of section 35 had the Incometax Officer exercised his powers under the section within one year from tne date on which the earlier demand was served upon the respondents."}}, {"text": "s.35", "label": "PROVISION", "start_char": 21408, "end_char": 21412, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35", "label": "PROVISION", "start_char": 21506, "end_char": 21516, "source": "regex", "metadata": {"statute": null}}, {"text": "s.35", "label": "PROVISION", "start_char": 22677, "end_char": 22681, "source": "regex", "metadata": {"statute": null}}, {"text": "Ganapatho Subbaraya Hegde", "label": "OTHER_PERSON", "start_char": 22830, "end_char": 22855, "source": "ner", "metadata": {"in_sentence": "We do not want to overburden this judgment by a discussion of Ganapatho Subbaraya Hegde's case (supra) cited by Shri Desai."}}, {"text": "s.37", "label": "PROVISION", "start_char": 22938, "end_char": 22942, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharana Mills", "label": "PETITIONER", "start_char": 23261, "end_char": 23275, "source": "ner", "metadata": {"in_sentence": "Maharana Mills' case and Khemchand's case\n\n(supra) were not noticed by the High Court in that case."}}, {"text": "Khemchand", "label": "OTHER_PERSON", "start_char": 23286, "end_char": 23295, "source": "ner", "metadata": {"in_sentence": "Maharana Mills' case and Khemchand's case\n\n(supra) were not noticed by the High Court in that case.", "canonical_name": "Khem Chand"}}, {"text": "s.35", "label": "PROVISION", "start_char": 23492, "end_char": 23496, "source": "regex", "metadata": {"statute": null}}, {"text": "s.35", "label": "PROVISION", "start_char": 24334, "end_char": 24338, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_854_859_EN", "year": 1975, "text": "STATE OF ASSAM\n\nBHUBHAN CHANDRA DATIA & ANR.\n\nMarch 5, 1975\n\n[A. N. RAY, C. J., K. K. MATHEW AND V. R. KRJSHNA IYER, JJ.] Assam a11d Nagaland High Court Services (A ppointmcnt, Conditions of Sm•ice and Conduct) R.ules, 1956. rr. 3 and 11-Scope of-Power of Chief /11stice 10 fi.t special pay and allowance of Registrar.\n\nUnder the Assam and Nagaland High Court Services (Appointment, Condi tions of Service and Conduct) Ruks, 1956, the initial pay of ihe Registrar of the High Court was .Rs. 850/ • per month.. Under r. 3 U >,. when th~ post '\"'.3S filled up from the iudicial service, It will carry a special !JUY. rhe Cluef Justice had also power under the rule to l\\x, wl tgout the prev10~ approval of the Llovernor, the initial pay up'to Rs. 1200/- per month accordmg.to expn ence etc.\n\nSubsequently, the rule wa5 altered authons, ng the Chief Justice 10 fix the in:tial pay, without the approval of the Governor, up to Rs. 1180/-.\n\nThe State Government revised the pay scale of the Registrar with effect fr.om\n\nht April 1964 anc! fixed the initial pay at Rs. 1200/-, A special pay was also sanctioned if he was borne on the judicial serv.ce, but no change in r .. 3(1), authorising the Chief Justice to fix the initial salary up to Rs. 1180/·\n\nper month was made,\n\nOn April 28, 1967, the respondent, who had retired from the judicial service and was holding the post of Pres:ding Officer. Industrial Tribunal, was appointed\n\nRgistrar of the High Court and the Chief Justice fixd a spcial initial sahiry of Rs. 1500/-, that is, at the maximum of the !ale, and a special allowar1ce of Rs. 250/-.\n\nOn the question whether the fixation of the salary and special allowance was l'a!id the High Court held in favour of the respondent on the grounds that,\n\n(a) becuse in the past the Chief frstice could appoint the Registrar with the ; pccial pay of Rs, 1200/· or Rs. 1180/- when the initial pay was Rs. 850/., that is, he could gJve six increments of RB. 50, the Chief Just'ce could now appoint the Registrar witb the special pay of Rs. 1500 /- when the initial pay was Rs. 1200/- by giving five increments of Rs. 60; and (b) when the initial pay itself was Rs. 1200/· the power of the Chii:f Justice to fix a special pay of Rs. 1180/- became meaningless and i:nust be read as Rs. 1500/·.\n\nAllowing the appeal to this Court,\n\nHELD : ( 1) The reasoning: of the High Cou1t was wrong and no su,:h power could be implied in the Chief Justice, If the Chief Justice wanted 1:0 uppoint the Registrar with the special salarv of Rs. 1500/. and special an ow. 11.nc:e, approval of the Governor should have bee.n taken under Art. 229(2),\n\nbecause the rules do not permit such a sllilary and the higher salary involvc:s greater financial burden on the Government. (857G-858BJ\n\nM. Gurumoorthy v. Accountant General Assam & Nagaia11d & Ors. (1971] Supp. S.C.R. 420 followed.\n\n(2) Further, r. 3(1) conferred power on the Chief Justice to fix the speci<il •tllowancc onlv we~ the oost is filled from the members of the judicial servic(:.\n\nThe. post of. Pres1d111g Officer, Industrial Tribunal was im; Iu<led in the Assam fodlClal Service only on Atlgust 17, 1967, and not when the respondent was appointed as a Registrar of the High Court. That apart, it is indisputable that the respondent had retired from the State Judicial Service and it could not be aid that such a retired person was member of lhe Judicial Service or wa:; borne on the service. [8580-F] ·\n\n(3) Rule 11 is a general rule and is not applicable to we appointment andl fixat10u of pay and special altowan:es of the Registrar because there is specific\n\nA provision; namely,! r. 3 ( 1) for the post of Registrar vvhich prevails over the general rule.\n\nMoreover. r. 11. must al-:o be read subject to the proviso 10 Art. 229'(2) which. requires the approval of the Governor for fixing pay ClL'.\n\nAlso, Fundamental Rule 19 does not permit any su:h fixation in the teeth of r. 3(1) on the strength of r. 11. f859C-FJ\n\nCML APPELLATE JuRISDICTlON : Civil Appeal No. 1547 of 1969.\n\nB Appeal by Special Leave from the Judgment and order dated the 19th May, 1969 of the Assam & Nagaiand High Court in Civil Rule No. 126 of 1969.\n\nMoinul Haque Choudhary and Naunit Lal, for the appellant.\n\nSarjoo Prasad, and S. N. Prasad, for respondent no. 1.\n\nP. l'. Rao and S. P. Nayar, for respondent no. 2.\n\nRAY, C.J.-This appeal by Special leave raises the question as to whether the appointment of the Registrar of the High Court f Assam at a special salary of Rs. 1500/- with special allowance of Rs. 250/- is valid.\n\nOn 28 April, 1967 Bhubhan Chandra Dutta was appointed Registrar of the High Court of Assam.\n\nThe appoinra1ent was made by the Chief Justice of the Assam High Court in exercise of powers conferred by Article 229 of the Constitution of India and Rules 7 and 13 of the Assam & Nagaland High Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967.\n\nThe order of appointment of the Registrar was as follows : \"He shall be entitled to draw an initial pay of Rs. 1500/ per month les5 the pension, if any, he has been drawing from the Government.\n\nHe shall, in addition to the pay, be entitled to draw a special pay of Rs. 250/- per month admissible under the Rules to the Registrar of the High Court. He shall hold the appointment for a minimum period of two years in the first instance. This period may, h0wever, be extended as considered suitable and necessary by .the Chief Justice.\"\n\nIt may be stated here that Bhubhan Chandra Dutt11 had previously been Additional District Judge and also the Registrar of the High Court. On 1 July, 1958 Bhubhan Chandra Dutta attained the age of 55 years.\n\nHe was then the Registrar of the High Court. He was given aa extension of one year.\n\nOn 1 July, 1959 he retired as Registrar of the High C\\>urt.\n\nOn 25 July, 1968 the Deputy Registrar of the High Court under the direction of the Chief Justice wrote to the Secretary to the Governp1ent of Assam in the Law Department to instruct the Accountant General to issue provisional pay slip to Bhubhan Chandra Dutta for Rs. 1500/- as pay plus special pay of Rs. 250/-. On 2 August, 1968 the Accountant General issued a provisional pay slip for the period 1 May, 1967 to 31 October, 1967 authorising Bhubhan Chandra Dutta\n\nta draw a sum of Rs. 870.75 as provisional pay. The special pay of Rs. 250/- was not included in the pay slip. Bhubhan Chandra Dutta thereafter filed a writ petition in 1969 in the High Court at Assam for a mandamus to give effect to the notification dated 28 April, 1967 appointing him to the post of Registrar\n\n:fixing the pay and special pay allowable to him and a further mandamus on the Accountant General, Assam and Nagaland, Shillong to issue pay slip to Bhubhan Chandra Dutta for the full amount payable to him in terms of the said notification.\n\n The High Court issued a mandamus directing the appellant to issue pay slip to Bhubhan Chandra Dutta at the rate of Rs. 1500/- per month minus his pension and a special pay of Rs. 250/- per month.\n\nBhubhan Chandra Dutta, according to the mandamus issued by the High Court, be:came entitled to the said salary as Registrar for two years with effect from 1 May, 1967.\n\nThere is no dispute that under Article 229 of the Constitution the appointment of the Registrar is to be made by the Chief Justice of the High Court. lt mav be stated here that under Rule 7 of the Assam and Nagaland High- Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967, a person who had retired from\n\nthe State Judicial Service Grade I could be appJinted Registrar. The only question is whether the Chief Justice had authority to appoint tr.e Registrar at a salary of Rs. 1500/- p.m. and special pay of Rs. 250/- p.m. In view of the fact that Bhubhan Chandra Dutta had already retired from the Judicial Service and was drawing pension, it is common ground that the pension that he was drawing was to be deducted from the salary of Rs. 1500/-.\n\nUnder the Assam and Nagaland High Court Services (Appoiintment, Conditions of Service and Conduct) Rules, 1956, the pay scale of the Registrar was at Rs. 850-50/1-1500 per month.\n\nThe relevant Rule 3(1) of the 1956 Rules provided as follows: \"The post of the Registrar, when filled up from the Service will carry a special pay of Rs. 150/- per mensem in additi'Un to the Grade pay as admissible to the members of the Assam Judicial Service (Senior) Grade I.\n\nIn any other case the Chief Justice will have power to fix, without the previous approval of the Governor, the initial pay up to Rs. 1200/-· a month according to the experience, ability and age of the person concerned.\"\n\nSubsequently the pay scale was fixed at Rs. 850--50--1000- 60--1300--EB--50--1500. With the said change in the pay scale there was a consequential alteration in Rule 3(1) authorising the Chief Justice to fix the initial pay, without the approval of the Governor up to Rs. 1180/-.\n\nTherefore, under the 1956 Rules the Chief Justice could appoint a Registrar at the initial pay up to Rs. 1200/\"' a month without the previous approval of the Governor.\n\nWhen the pay scale was subsequently changed the Chief Justice could similarly fix the initial pay of the Registrar without the approval of the Governor at Rs. 1180/-.\n\nThe Government revised the pay scale of the Registrar on 4 September, 1967. The revised pay scale was Rs. 1200-60-1380-EB-60-\n\n1500. is revision was however made _with effect from 1 April,\n\n1964. With effect from that date a special pay was also sanctiorud if the Registrar was borne on the Judicial Service. It should be stated here that when the pay scale was revised in 1967 there was r10\n\nchange in Rule 3( 1) which as it stood then said that the Chief Justice could fix the initial salary at Rs. 1180/- per month. ·\n\nThe High Court held l}1at when the initial pay of the Registrar became Rs. 1200/- the authority to fix the initial pay at Rs. 1180/- became . meaningless, and, therefore, by implication the figure of Rs. 1180/-\n\nshould be r .... ad as Rs. 1500/-. The reason given, by the High Court was that 'vhen the Chief Justice could fix the initial pay at Rs. 1180/- under the Rules the Chief Justice could allow six increments at the time of initial appointment. Therefore, according to the High Court, when the initial pay became Rs. 1200/• the authority to fix the initial pay would be Rs. 1500/- because the Chief Justice could grant six increments at the time of initial appointment.\n\nThe High Court also said that though six increments at the rate of Rs. 60/- would make it Rs. 1560/-, the sum o~ Rs. 1500/- should be adopted because that was the highest pay.\n\nWhen in 1967 the pay scale of the Registrar was revised-there was no corresponding alteration in the Rules that the Chief Justice would have power oo fix, without the authority of the Governor, the initial\n\npy at Rs. 1500/-.\n\nAt no stage could the Chief Justice fix the initial pay up to the maximum of the scale of pay which remained constant at Rs. 1500/- ail throughout, notwithstanding .the two revisions in the scale of pay. On the other hand, it appears that at no time the Chief Justice\n\nwa~ emirowered to fix the initial pay higher than Rs .. 1200/-. When the scale of pay was revised in 1964 it is significant to know that the power of the Chief Justice to fix the initial pay was reduced from Rs. 1200/- to Rs. 1180/-.\n\nJust because the initial pay of the Registrar in 1967 becMne Rs. 1200/- and with five increme.1ts the salary would be Rs. 1500/- no implication can arise on the power of the Chief Justice oo appoint the Registrar at the initial pay of Rs. 1500/-. The reasoning of the High Court that because in the past under the Rules the Chief Justice could app0int the Registrar at the initial pay of Rs. 1200/- or at Rs. !180/- which showed that the initial pay of Rs. 1200/-. or Rs. 1180/- gave six increments at the time of initial appointment, there is no warrant for implying the power to appoint the Registrar at the highest salary of Rs. 1500/- at the time of initial appointment on the ground that it would carry increments.\n\nArticle 229 of the Constitution confers power on the Chief Justice of the High Court to appoint officers and. servants of the High Court.\n\nArticle 229(2) states that. subject to the provisions of any law made by the Legislature of the State, the conditions of the service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. It is also provided that the rules made under Article 229f2) shall, so far a~ they relate to salaries, allowanc•s, leave or p , jons, require the approval of the Governor of the State. It is Lvt disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1500/- per month with special allowance of Rs. 250/- per month was made without\n\nlhc approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500/- with a special salary of Rs, 2'JO/- per month, special approval of the Governor shouRd have been taken in view of the fact that the rules did not permit such salary and the higher salary involved gre.ater financial burde:n on the Government. (See M. Gurunworthy v.\n\nAccoumam General Assam & Nagaland & Ors. (1971) Supp. S.C.R. 420).\n\nThe special pay of Rs. 250/- per month which was granted. by the Chief Justice to the Registrar by his order dated 28th April, 1967 was impeached by the State on the ground that Rule 3(1) confe:rred power on the Chief Justice to fix the special pay only when the J?OSt 1s filled from the m.embcrs 'Of the Assam Judicial Service (Senior) (irade I. It was contended by the State that Bhubhan Chandra Dutta\n\nat th-: time of his appointment on 28 April, 1967 had retired from service and he was no longer a member of the Service and therefore he was not cotiitlcd to any special pay.\n\nOn behalf of Bhubhan Chandra Dutta it was said that he was, at the time of appointment of the Registrar, the Presiding Ofiker, Industrial Tribunal, and, therefore, he was a member of the Judicial Service.\n\nThe High Court interpreted Rule 3(1) to mean that whoever will be appointed as the Registrar will be a member of the State Judicial Service, and, therefore, Bhubhan Chandra Dutta on being appointed as the Registrar was entitled to the special pay of Rs. 250/- pier month.\n\nOn 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judidal Service (Seni6:r) Grade I. This post was included in the Assam Judicial Service on 17 August,_1967. That apart it is iadisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service on 28 April, 1967. It could not, therefore, be said that a retired man can be a member of the Judicial Service or shall be borne on the service.\n\nCounsel on behalf of Bhubhan Chandra Dutta in the alternative submitted that under Rule 11 of the Assam and Nagaland High Court Service Rules the Chief Justice had power to fix the pay of Rs. 1500/- and the special pay of Rs. 250/- per month.\n\nReliance was also placed on Fundamental Rule 19. Rule 11 and Fundamental Rule 19 are set out hereunder :~\n\n\"Rule 11\n\n(i) In regard to pay, allowances leave, leave salary or. pension, th1: Rules and Regulations applicable to the members of' the services under the rule making power of the Government of Assam shall appliy, mut.atis mutandis to persons serving in this High Court and subject also to such amendments and variation8 as may be made .by the Chief Justice frnm time to time with the approval of the Governor, where neces.'llll'}'. - Provided that the powers . exercisable under the said rules llnd orders by the Governor or by any authority sub-\n\nA ordinate to the Govern:or shall be exercisabli! by the Chief Justice or by such person as he may, by special or general order direct.\n\n(ii) Any question arising as Jo which rules or orders are applicable to the case of any person serving 01i the staff attar.hcd to the High Court shall be decided by the Chief B Justice\".\n\nF.R. 19 \"111e fixation <if pay is within the competence of the Provincial Government; provided that, except in the case of personal pay granted in the circumstances defined in Rule 9(23)(a), the pay of a Government servant shall not be so increased as to except the pay sanctioned for his post without th:: sanction of an authority competent to create n post in the same cadre on a rate of pay equal to his pay when increased\".\n\nThe High Court held that the Chief Justice under Rule ll(i) read' with Fundamental Rule 19 could fix the pay of the Registrar at Rs. 1500/-. Rule 11 is not applicable to the appointment and fixation of pay and special pay of the Registrar because there is a specific provision made exclusively for the post of the Registrar. Rule 3(1) prevails over Rule 11 which is a general rule. The revision of pay scale from time to time since 1956 cannot alter the content and meaning of Rule 3 (1 ) . The revision of pay scales cannot have the effect of transferring the power from Rule 3(1) to Rule 11. Further Rule 11 must be read subject to the proviso to Article 229(2) of the Con- . stitution. Any fixati<:m of pay by the Chief Justice apart from Rule 3(1) requires the approval of the Governor. Fundamental Rule 19 does not permit the fixation of pay in the teeth of Rule 3(1) on the strength of Rule 11.\n\nThe High Court wa~ wrong in granting a mandamus.\n\nThe Respondent Bhubhan Chandra D.!:!tta was entitled only to the initial pay of Rs. 1200/- less pension and gratuity. The amount was calculated by the Accountant General at Rs. 870.75. Bhubhan Chandra Dutta was not entitled to any special pay.\n\nI For these reasnos the judgment of the High Court is set aside.\n\nThe appeal is accepted. The rule granted by the High Court is dis~ charged. In view of the fact that the appeal is by special leave we need not express any opinion on the contention advanced on behalf of the State that the High Court should not have \"entertained a writ for the enforcement of a contractual claim or a monetary claim.\n\nThis Court at the time of granting the special leave made an order that the Respondent Bhubhan Chandra Dutta would be at liberty to withdraw Rs. 1000/- out of the security amount.\n\nSave as aforesaid, the parties will pay and bear their own costs.\n\nV.P.u.\n\nAppeal allowed.", "total_entities": 40, "entities": [{"text": "STATE OF ASSAM", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "STATE OF ASSAM", "offset_not_found": false}}, {"text": "BHUBHAN CHANDRA DATIA & ANR", "label": "RESPONDENT", "start_char": 16, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "BHUBHAN CHANDRA DATIA & ANR", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 62, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "V. R. KRJSHNA IYER, JJ.", "label": "JUDGE", "start_char": 97, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "April 28, 1967", "label": "DATE", "start_char": 1272, "end_char": 1286, "source": "ner", "metadata": {"in_sentence": "1180/·\n\nper month was made,\n\nOn April 28, 1967, the respondent, who had retired from the judicial service and was holding the post of Pres:ding Officer."}}, {"text": "Art. 229(2)", "label": "PROVISION", "start_char": 2612, "end_char": 2623, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Atlgust 17, 1967", "label": "DATE", "start_char": 3128, "end_char": 3144, "source": "ner", "metadata": {"in_sentence": "Pres1d111g Officer, Industrial Tribunal was im; Iu<led in the Assam fodlClal Service only on Atlgust 17, 1967, and not when the respondent was appointed as a Registrar of the High Court."}}, {"text": "Art. 229", "label": "PROVISION", "start_char": 3763, "end_char": 3771, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Nagaiand High Court in Civil Rule", "label": "STATUTE", "start_char": 4118, "end_char": 4151, "source": "regex", "metadata": {}}, {"text": "Moinul Haque Choudhary", "label": "LAWYER", "start_char": 4170, "end_char": 4192, "source": "ner", "metadata": {"in_sentence": "Moinul Haque Choudhary and Naunit Lal, for the appellant."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 4197, "end_char": 4207, "source": "ner", "metadata": {"in_sentence": "Moinul Haque Choudhary and Naunit Lal, for the appellant."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 4229, "end_char": 4242, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, and S. N. Prasad, for respondent no."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 4248, "end_char": 4260, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, and S. N. Prasad, for respondent no."}}, {"text": "P. l'. Rao", "label": "LAWYER", "start_char": 4285, "end_char": 4295, "source": "ner", "metadata": {"in_sentence": "P. l'."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4300, "end_char": 4311, "source": "ner", "metadata": {"in_sentence": "Rao and S. P. Nayar, for respondent no."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4336, "end_char": 4339, "source": "ner", "metadata": {"in_sentence": "RAY, C.J.-This appeal by Special leave raises the question as to whether the appointment of the Registrar of the High Court f Assam at a special salary of Rs."}}, {"text": "28 April, 1967", "label": "DATE", "start_char": 4552, "end_char": 4566, "source": "ner", "metadata": {"in_sentence": "On 28 April, 1967 Bhubhan Chandra Dutta was appointed Registrar of the High Court of Assam."}}, {"text": "Bhubhan Chandra Dutta", "label": "RESPONDENT", "start_char": 4567, "end_char": 4588, "source": "ner", "metadata": {"in_sentence": "On 28 April, 1967 Bhubhan Chandra Dutta was appointed Registrar of the High Court of Assam.", "canonical_name": "BHUBHAN CHANDRA DATIA & ANR"}}, {"text": "High Court of Assam", "label": "COURT", "start_char": 4620, "end_char": 4639, "source": "ner", "metadata": {"in_sentence": "On 28 April, 1967 Bhubhan Chandra Dutta was appointed Registrar of the High Court of Assam."}}, {"text": "Assam High Court", "label": "COURT", "start_char": 4696, "end_char": 4712, "source": "ner", "metadata": {"in_sentence": "The appoinra1ent was made by the Chief Justice of the Assam High Court in exercise of powers conferred by Article 229 of the Constitution of India and Rules 7 and 13 of the Assam & Nagaland High Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967."}}, {"text": "Article 229", "label": "PROVISION", "start_char": 4748, "end_char": 4759, "source": "regex", "metadata": {"linked_statute_text": "Nagaiand High Court in Civil Rule", "statute": "Nagaiand High Court in Civil Rule"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4767, "end_char": 4788, "source": "regex", "metadata": {}}, {"text": "Bhubhan Chandra Dutt11", "label": "RESPONDENT", "start_char": 5478, "end_char": 5500, "source": "ner", "metadata": {"in_sentence": "It may be stated here that Bhubhan Chandra Dutt11 had previously been Additional District Judge and also the Registrar of the High Court.", "canonical_name": "BHUBHAN CHANDRA DATIA & ANR"}}, {"text": "1 July, 1958", "label": "DATE", "start_char": 5592, "end_char": 5604, "source": "ner", "metadata": {"in_sentence": "On 1 July, 1958 Bhubhan Chandra Dutta attained the age of 55 years."}}, {"text": "High Court at Assam", "label": "COURT", "start_char": 6451, "end_char": 6470, "source": "ner", "metadata": {"in_sentence": "Bhubhan Chandra Dutta thereafter filed a writ petition in 1969 in the High Court at Assam for a mandamus to give effect to the notification dated 28 April, 1967 appointing him to the post of Registrar\n\n:fixing the pay and special pay allowable to him and a further mandamus on the Accountant General, Assam and Nagaland, Shillong to issue pay slip to Bhubhan Chandra Dutta for the full amount payable to him in terms of the said notification."}}, {"text": "Article 229", "label": "PROVISION", "start_char": 7223, "end_char": 7234, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "4 September, 1967", "label": "DATE", "start_char": 9320, "end_char": 9337, "source": "ner", "metadata": {"in_sentence": "The Government revised the pay scale of the Registrar on 4 September, 1967."}}, {"text": "1 April,\n\n1964", "label": "DATE", "start_char": 9443, "end_char": 9457, "source": "ner", "metadata": {"in_sentence": "is revision was however made _with effect from 1 April,\n\n1964."}}, {"text": "Article 229", "label": "PROVISION", "start_char": 12092, "end_char": 12103, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 229(2)", "label": "PROVISION", "start_char": 12231, "end_char": 12245, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 229", "label": "PROVISION", "start_char": 12644, "end_char": 12655, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "28th April, 1967", "label": "DATE", "start_char": 13573, "end_char": 13589, "source": "ner", "metadata": {"in_sentence": "by the Chief Justice to the Registrar by his order dated 28th April, 1967 was impeached by the State on the ground that Rule 3(1) confe:rred power on the Chief Justice to fix the special pay only when the J?OSt 1s filled from the m.embcrs 'Of the Assam Judicial Service (Senior) (irade I. It was contended by the State that Bhubhan Chandra Dutta\n\nat th-: time of his appointment on 28 April, 1967 had retired from service and he was no longer a member of the Service and therefore he was not cotiitlcd to any special pay."}}, {"text": "Assam Judidal Service", "label": "ORG", "start_char": 14691, "end_char": 14712, "source": "ner", "metadata": {"in_sentence": "On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judidal Service (Seni6:r) Grade I. This post was included in the Assam Judicial Service on 17 August,_1967."}}, {"text": "Assam Judicial Service", "label": "ORG", "start_char": 14762, "end_char": 14784, "source": "ner", "metadata": {"in_sentence": "On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judidal Service (Seni6:r) Grade I. This post was included in the Assam Judicial Service on 17 August,_1967."}}, {"text": "17 August,_1967.", "label": "DATE", "start_char": 14788, "end_char": 14804, "source": "ner", "metadata": {"in_sentence": "On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judidal Service (Seni6:r) Grade I. This post was included in the Assam Judicial Service on 17 August,_1967."}}, {"text": "Counsel on behalf of Bhubhan Chandra Dutta in the alternative submitted that under Rule", "label": "STATUTE", "start_char": 15052, "end_char": 15139, "source": "regex", "metadata": {}}, {"text": "Reliance was also placed on Fundamental Rule", "label": "STATUTE", "start_char": 15296, "end_char": 15340, "source": "regex", "metadata": {}}, {"text": "Article 229(2)", "label": "PROVISION", "start_char": 17356, "end_char": 17370, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Bhubhan Chandra D.!:!tta", "label": "RESPONDENT", "start_char": 17674, "end_char": 17698, "source": "ner", "metadata": {"in_sentence": "The Respondent Bhubhan Chandra D.!:!tta was entitled only to the initial pay of Rs.", "canonical_name": "BHUBHAN CHANDRA DATIA & ANR"}}]}
{"document_id": "1975_3_860_866_EN", "year": 1975, "text": "MOHAMMAD ABDUL SALAM KHAN\n\nSARFARAZ AHMAD KHAN & OTHERS\n\nMarch 5, 1975 [A. N. RAY, CJ., K. K. MATHEW, v. R. KRISHNA IYER,\n\nAND A c. GUPTA., JJ.]\n\nU.P. Town Areas Act, (II of 1914) s, 6K-.Scope of-Dismissed Govem- .111mt serwmr-Jf could be elected as Chairman of Town Area Commillee-\n\nDi.tmissal-Mea11i11g of.\n\nPunjab Police Rules-Rule 16(2) (iii)-Scope of-Publication of dismissal i11 Police Gazette--Ef]ect of.\n\nSection 6K of the U.P. Town Areas Act proviqes that a person, notwith standing that he is otherwise qualied, sbaH be disq1:1alifie? for. being. ch.osen .as, and f'or being a member or Chairman of a Committee 1f he 1s 3: dts!lllssed\n\nservant of a local authority, the State or Central Government and 1s debarred fr.om reemployment therein.\n\nRule 16(2) (iii) of the Punjab Police Rul7s, which apply to respondent No. 1 at the relvant t'me, states that when a pohce officer is convicted judicially and dismissed, or dismissed as .a result of a departmental enquiry, the conviction and dismissal and lls cause shall be publisher! in the PoEce Gazette. In other cases of dismissal when it is desired to ensure that the officer dismissed shall not be re.employed elsewhere, a full descriptive roll, with particul:irs of the punishments. shall be sent for publication in the \"Police Gazett~. ·\n\nThe first respondent, a dismissed police' constable. was elected as Chairman of the Town Arca Committee. The appellant. who was the defeated cand:date, assailed the election of the respondent. 'The Election. Tribunal constituted under th'e U.P. Town Areas Act set aside the election and declared the appellant as the Chairman. Jn a writ petition under Art. 226, a single Judge of the High Court affirmed the order of the Tribunal as regards the election of the respondent No. I but in relation. to the relief directed against the declaration of the appellant as Chairman.\n\nA Division Bench of the H:gh Court allowed the appeal of respondent No. I holdinl!: that s. 6-K spoke of two components, namely, (a) dismissal and (b) being debarred from re-employment and since the second ingredient was not priesent in the order of termination against the constable, the formula for disqualificat'on was not fulfilled. ' Allowinl!: the appeal,\n\nHEL~ : (I) There is no escape from the conclusion that the hrst respond1:nt was punished under the former part of r. 16(2) (iii) and incurred the extreme wrath of the law i.nclud!ng isbarment from re-employment.\n\nLogically, therefore, he suffered d1squahficahon under s. 6-K of the Act and the Tr:bunal in Temoving him from Chairmanship, acted legally. [866 F] ·\n\nction 7 of the Polici: Act speks of dismissal as a single category of pumsh!11ent, not as two twigs from the same branc)l, that is, dism'ssal wit/rout\n\n?~:I 'fl!llh , en:ibargo on re-entry mto State service. When s. 7 uses the express10n\n\nd1sm1ssal • 1t ust be deemed to have conveyed the official semantics attached .10 that express10n, namely, removal from §ervice plus a ban on re-employment\n\nby, the State. 'f!le non-enumeat!on of 'rC'!Joval' as a distinct form of punbhmt.n! oes not divest the appo:ntmg authonty from exercising, subject to legal\n\nrest~1cl!ons, the i; io111:er to remove from service without inflicting the more serious punishment of d1sm1ssal. [864 C; F]\n\nABDUL SALAM V. AHMAD ~N 861\n\n(2) The words 'dismissal' and 'r<:moval' h.ave one distinction, namely, tbat the former di5qualifies from futme employment while the latter does not.\n\nTherefore, dismissal is removal with .i prohibtion super-added. [864 H; 865 DJ\n\nKliem Chand v. Union of India [1958) S.C.R. 1080, 1089 and Shyamlal's case, A.I.R. 1954 S.C. 369, 374, referred to.\n\n(3) (a) \"Dismissal\" removes the man from his office and super-adds debar- ent from re-employmet. Such being its meaning in the Indian ConsUution,\n\n~~ . the. rel~, vant rules whch have been in force in this country over the decades\n\n. d1sm1ssal has to be )Jnderstood, as punishment imposed upon the constable. m this case, as one which embodies the latent penalty of disability from being re-e_mployed. [866 BJ\n\n(b) Rule 16(2) (iii) does not state \"in other cases of dismissal\" the bar against re-<:mployment operates only where there is publication in the Police, Gazette to that effect. Dismissal, as such, carries with it this additional penalty in both. classes of cases but in the first category covered by the rule, publication is a duty cast upon the author, ty while in the second category the euthority is left with the option to publish or not to publish. If the dismilislng authority. desires to ensure itself that unwittingly some other department may not employ ihe dismissed official, it may, by way of abundant caut.on, resort to publication of the punishment in the Police Gazett~. The language is clear that to ensure Lhat the officer dismissed shall not be re-<:mployed the concerned authority. shall send for publication the relevant particulars. Not that without $Uch publication a right to re-<:mployment inheres in the dismissed official, but that tl> make sure that any unknowing slip may not be committed by another depart ment, the dismissing officer may take care to forward the particulars of punishment for proper publication. It is enabling, so far as the dismissin~ authority is concerned, and iS legally unnecessary to spell the two-in-one pumshment or dismissal. (866 C-El\n\nARGUMENTS\n\nFr•r the Appellant :\n\nFrom a plain reading of s. 6-K of the U.P. Town Areas Act it is clear that if a man is dismissed from service of a local authority, Central Government or State Government by way of punishment and is debarred from re-employment thereunder, he cannot contest the elecLon for the Chairman of the Town Area_ Committee. From a plain reading of s. 6-K it becomes clear that the intention of the legisla:ure in enacting this law was that the persons who have been dismissed from service by way of punishment will not be qualified for elect:on to. the post of Chairman. Town Area Committee. This section contemplates only such dismissed servants who have been dismissed from service by Way of punishment for mis-conduct. and indiscipline.\n\nFor Respondelll No. 1 :\n\nRespondent no. I was removed from the Delhi Police Service and was not a dismissed servant within the meaning of s. 6-K of the U.P. Town Area Act.\n\nThe words 'dismissed servant' used in s. 6-K in that Act were used in a broader sense and meant a servant whose services were terminated. The words 'and is debarred from re-employment therein used in that section clearly indicate that the election petitioner will have to prove that the services of respondent No. 1 were terminated and he was debarred from re-<:mployment.\n\nSection 7 of the Indian Police Act and r. 16(2)(iii) of th.e Punjab Poliee Rules were applicable to Delhi.\n\nIf a Police Officer is convicted by a Court of law and is dismissed as a result of the departmental enquiry in consequence of corrupt practices, such a dismissal would ipso facto mean dism'ssal by way of punishment. However. if the terminatin <?f service w_as on ccount of anv other reason, then if the authority termmatmg the services desires to ensure that the officer dismissed shall not be re.employed elsewhere, a full descriptive roll with particulars of the pun'shment shall be sent for publication in the Police Gazette. In the present case the iervices of the respondent no. I were terminated in dep; irtrp.ental inquiries, the dismissal wus not on account of corrupt practice falling undr the first part of r. !6(2)(iii) of the Punjab Police .R11Jc;.\n\nSecondl.Y there was no publication in the Police Gazette. It must therefore follow tlrnl it was a case of removal anJ not dismissal.\n\nCrv1L APPELLATE JURISDICTION : Civil Appeal No. 1200 of 1974.\n\nAppcdl by special leave from the judgment and order dateJ the 4th April, J 973 of the Allahubad High Court in Special Appeal No. 34 of 1973.\n\nR. K. Jain, N. R. Choudhary, Rajesh l'rns<1d Singh and\n\nK K.\n\nMohan, for the npp1:1lant.\n\nJ. P. Goyal and G. S. Chatterjee for respondent No. 1.\n\nThe Jdgmcmt o.f. the Court was dclivcml by\n\nKRISHNA IYER, J .-A single legal issue presents itself for solution in this appeal.\n\nThe question i& whether n public servant dismissed for misconduct is 1.10t ipso jure disbarred from employment .uinder the State. 1f 'yes', the 1st respondent is ineligible for the public.\n\noffice of Chairmanship of Town Area Bugrasi from where he has been removed on the ground of dismissal from government service, resulting in the eruption of this election dispute. If 'no', restoratron to the lost office inevitably follows.\n\nThe appellant and 1st respondent were rivals for Chairmanshio of Town Area Uugrasi in U.P.\n\nThe latter, a dismissed police constable, was returned by the electorate and the former, chagrined by the defeat, successfully pctiti'oned the Election Tribunal.\n\nThe Ground\n\nThe appellant and the 1st respondent were two of the three candidates for Chairmanship of the Town Area of Bugrasi. The .1st respondent secured the highest number of votes and was declared elected by the Returning Officer. Thereupon the appellant moved the statutory trib\\.tnal by an election petition which was allowed on the scare of disqualification for being chosen as Chairmll'.1 by virtue of s. 6-K of tho U.P. Town Areas Act (Act 11 of 1914). The disqualification\n\nstemmed from dismissal of the 1st respondent on September 26, 1963 from the Delhi Police Force.\n\nWhen the Election Tribunal set aside the l st respondent's election and declared the appellant as the Chairman, the unseated candidate invoked the writ jurisdiction of the\n\nHigh Court. The learned Single Judge who heard the petition affirmed the order of the Tribunal substantially but in relation to the relief directed against the declaration of the appellant as Chairman, the order was vacated.\n\nThat question was left to be decided afresh in tho light of certain \"Observations of the learned Judge. Dissatisfied hy th, e result, of both the appellant and the 1st respondent filed Writ Appeals before a Division Bench of the High Court which ended in the allowance of the claim of the 1st respondent to be Chairman a!1.d consequential dismissal of the appeal of the other.\n\nThe aggrieved appellant has, therefore, come up to this Omrt by special leave for relief based on the construction of two slightly aJ.J1blguous rules havin some impact on this village election. '\n\nAilDUL SALAM \\!, AHMAD Kl{AN (Krishna Iyer, ]. ) 863\n\nBefore opening a political chapter, respondent No. 1 had ended his official career as police constable under dismissal order dated\n\nsptembcr 26, 1963:\n\n\"Constabie No. 3048 Sarfraz Ahmad Khan is dismissed from the forenoon of 25-9-1963 of having been in illicit relation with Mrs. Chatterjee and her daughter.\n\nThe conduct of the constable is most reprehensible, adulterous and unworthy of a Police Officer who is supposed to protect the Society from such vices.\"\n\nHe ran for Panchayat Chairmanship and won, defeatini; the appellan-t and the 2nd respondent.\n\nThe disability ir election in the present irystancc is said to sping from the dismissal of the lst respondent from government service as aforesaid.\n\nlet us examine the relevant legal texts.\n\nThe pertinent part of\n\n~. 6-K .• relied on by the appellant as fatal disqu•a!ification, reads :\n\n\"6-K. Disq1wlificatio11 for members and Cluiirman-\n\nA person notwithstanding that he is otherwise qualified, shall be disqualified for being chosen l).S, and for being, a nJc•mber or Chairman of a Committee, if hc-\n\n(a) is a dismissed servant of. a local authority, the State or Central Government and is debarred from re-employment therein,\n\nIs the contesting respondent 'a dismissed servant of the State Government and is debarred from re-employment therein'? That is the question. The statute is of 1914 vintage, but amended from time to time, and we have to interpret it in the light of legal provisions and constitutional developments.\n\nDoes 'dismissal' automatically spell.\n\n'dibarment fm re-employment' ? The argument . which weig.hed witb the High Court is that s. 6-K speaks of two compon.:nls (a) dismissal; (b) and being debarred from re-employment. The second ingredient is not present in the terminal order against the constable and so the formula for disqualification is not fulfilled.\n\nWe are not impressed with this dualism. If dismissal simpliciter carries within it the ban on re-employment as a necessary jural iocidcr.t, then both the elements are present implicitly in the order.\n\nIt is not as if the interdict against re-employment should be separate.ly stated in the rule or order if by force of Jaw an effective bar in that behalf can be read into the order cashiering the constable.\n\nSo we 11re thrown back on the order itself which, admittedly, is silent on pruhibition of re-employment.\n\nCounsel for the contestant, Shri Goyal, strenuously argud that the Police Act and the relevant rules bearing on disciplinary action are telling and must be treated as decisive.\n\nBrushing aside the ripples of confusion raised in the course of arguments about the source of vawer for framing these rule!r-no party, at any stage, has challenged\n\nlthe vires of the rules-we may reproduce r. 16(2)(iii) which gvverns th; situation. Before that, a glance at s. 7 of the Police Act : 'Subject to the provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time makt: under this Act, the Inspectur General, Deputy Inspectors--General, Assistant Inspectors-General and District Superintendents, of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his ctuty or unfit for the same.\"\n\nIt is clear that s. 7 speaks of dismissal as a sh1glc category of punishment, not as two twigs from the same branch i.e., dismissal without and with embargo on re-e.1try into State service.\n\nIt may, however, be noticed that there is no specific reference to removal from service, a recognised form of punishment sanctified by the Constitution Acts, including Art. 311. Since s. 7 expressly subjects itself to the paramount law of the Constitution it is obvious that the power to remove is not eroded and vests in the appointing authority apart from the power to dismiss.\n\nIndeed, the Central and State rules regulating disciplinary control, all over the country, have, for a long period, made distinction between dismissal and removal, the former carrying the more injurious incident of removal plus refusal of future re-employment.\n\nAnyone conversant with disciplinary control of government servants in India will agree that this fundamental differe'ace between mere removal and dismissul exists. Art. 311 enumerates dismissal and removal as two different punishments, one more serious than the other. It is perfectly plain that, unders!ood in this environment of legal control of government servants prevalent historically in this country, s. 7 of the Police Act, when 1t use~ the expression 'dismissal' must be deemed ro have conveyed the offidal S<!mantics attached to that expression, viz., remm\"'al from service plus a ban on re-employment by the State.\n\nThe non-enumeration of 'removal' as a distinct form of punishment does not divest the appointing authority from exercising, subject ro legal restrictions, the power to remove from service without inflicting the more serious punishment of dismissal.\n\nThe expressions 'dismissal' and 'removal' laok alike fo'r the laity but fo. law they have acquired technical meanings sanctified by h:mg\n\nusage in Service Rules.\n\nIn Khem Chand v. Union of India(!) t!is Court observed :\n\n\" ... the expressions 'dismissed', 'removed' and 'reduced' in rank' are technical words taken from the service rules where they are used to denote the three major categories of punishment.\"\n\nA5 has been rightly pointed. out fo. a recent book(2), the words 'dismissal' and 'removal' have one distinction, viz., that the former dis- --------\n\n(I) [1958] S.C.R. 1080, 1089.\n\n(2) The Civil Srvant under the L1w and th, Co:.stitution-by Dr. N. Narlyanan Nair-\"\". The Academy of Legal Publications. Trivandrum-1 Kcrala (1973). - •\n\nABDUL SALAM v. AHMAD KHAN (Krishna Iyer, J.) 865\n\nqualifies from future employment while the latter does not Likewise, there is reference to this distinctioL in Shyamlal's Case(1) wherein it was said :\n\n\"'The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee (J.M. Lal's Case: AIR 1948 PC 121) there is no distinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does not . . . and it may be safely be taken, for reasons stated above, that . . . . removal and dismissal stand on the same footing except as to future employment. In . this sense removal is but a species of dismisal.\"\n\nC Rule 49 of the Civil Services (Classification, Control & Appeal) Rules,\n\nJ 930 provides inter alia :\n\n\"Removal is termination of service which does not disqualify fyom future employment.\n\nDis)nissal is :remov\\al from service which ordinarily disqualifies from future employment.\"\n\nIt follows that 'dismissal' is 'removal with a prohibition super-added'.\n\nAgainst this background, here is r. 16(2) (iii) of the Punjab Police Rules which applied during the relevant time to the 1st respondent:\n\n\"16(2)(iii). When a Police Officer is convicted judicially and dismissed, .or dismissed as a result of a departmental enquiry, in consequence of corrupt practice, the conviction and dismissal and its cause shall be published in the Police Gazette.\n\nIn other cases of dismissal, when it is desired to rnsure that the Officer dismissed shall not be re-c:mployed elsewhere, a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police . Gazette\".\n\nThe submission made with some attractiveness! by Shri Goyal receives verbal support from the text of the rule.\n\nIt speaks of a police officer being dismissed in consequence of 'corrupt practice' in which case there is a mandate to the State Government that 'its cause shall be published in the Police Gazette'. 'In other cases of dismissal' the provision for publication in the Police Gazette is facultative.\n\nCounsel spins out the argument that if 'in other cases of dismissal' the authority intends to inflict the additional penalty of non-reemployment, it should also publish the punishment iil the Police Gazette.\n\nIn the present case there is no indication of any such publication and so the dismissal does not carry with it the forbidding factor regarding re-employment. Read with s. 6-K, which refers to dismissal together with debam1ent from re-employment, the conclusion is sought to be drawn that the 1st respondent's case does not attract the disqualification in s. 6-K.\n\n(1) A.I.R. 1954 S.C. 369, 374,\n\n9-564SCT/75\n\n866 StJPREME COURT REPORTS [19751 3 s.c.R.\n\nWe do not agrei~. The reasons are two-fold. As earlie~ eplained, every 'dismissal' has . a double consequence undrstood m its cop.- textual connotation. It removes the man from his office and sup¢radds debarment from re-employment. Such being its meaning in te Indian Constitution, in the refevant rules which have been in force m the c:ountry over the decades and indeed has become part o, f our ofiicialt.se, we have to understand the dismissal as punishment imposed upon the constable in this case as one which embodies the latent penalty of disability from being re-employed.\n\nSecondly, even r. 16(2) (iii) carefully scanned, refuses to yield the helpful inference drawn from it by counsel for the 1st respondent.\n\nThat rule does not state 'in other cases of dismissal' the bar against re-employment operates only where there is publi-; ation in the Police gazette to that effect.\n\nDismissal, as such, carries with it this additional penalty in both classes of 'cases but in the first category covernd by the rule, publication is a duty cast upon the authority while in the second type of cases the authority is left with the option to publish or not to publish. If the dismissing authority desires to ensure itself that unwittingly some other department may no~ employ the dismissed official., he may, by way of abundant caution, resort to publication of the punishment in the Police Gazette.\n\nThe language is clear that to ensure that the officer dismissed shall not be reemployed the concerned authority shall send for publication the relevant particulars.\n\nNot that without such publication a right to re-c!mployment inheres in the dismissed official, but that to make sure that any unknowing slip may not be committed by another department; the dismissing officer may take care to forward the particula; s of punishment for proper publication. It is enabling so far as the dismissing authority is concerned and is legally. unnecessary to spell the two-in-one punishment of dismissal.\n\nIn this view of the matter there is no escape from the conclusion that the 1st responde11t was punished under the former part of r. 16\n\n(2) (iii) and incurred the extreme wrath of the law including disbarment from re-employment. Logically therefore he suffered disqualification under s. 6-K of the Act and the Tribunal, in removing hint froru Chairmanship, acted legally.\n\nNo other point h11s been urged before us a11d therefore we allow the appeal and affirm the learned Single Judge's judgment.\n\nIn the circumstances of the case we direct that the parties will bear their costs in this Court.\n\nThe costs of the appellant in the courts below' will be paid by the 1st respondent.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 60, "entities": [{"text": "MOHAMMAD ABDUL SALAM KHAN", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "MOHAMMAD ABDUL SALAM KHAN", "offset_not_found": false}}, {"text": "SARFARAZ AHMAD KHAN & OTHERS", "label": "RESPONDENT", "start_char": 27, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "SARFARAZ AHMAD KHAN & OTHERS", "offset_not_found": false}}, {"text": "March 5, 1975", "label": "DATE", "start_char": 57, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "MOHAMMAD ABDUL SALAM KHAN\n\nSARFARAZ AHMAD KHAN & OTHERS\n\nMarch 5, 1975 [A. N. RAY, CJ.,"}}, {"text": "A. N. RAY, CJ.", "label": "JUDGE", "start_char": 72, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 88, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "v. R. KRISHNA IYER", "label": "JUDGE", "start_char": 102, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "A c. GUPTA", "label": "JUDGE", "start_char": 127, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Town Areas Act", "label": "STATUTE", "start_char": 151, "end_char": 165, "source": "regex", "metadata": {}}, {"text": "Punjab Police Rules", "label": "STATUTE", "start_char": 310, "end_char": 329, "source": "regex", "metadata": {}}, {"text": "Section 6K", "label": "PROVISION", "start_char": 413, "end_char": 423, "source": "regex", "metadata": {"linked_statute_text": "Punjab Police Rules", "statute": "Punjab Police Rules"}}, {"text": "Town Areas Act", "label": "STATUTE", "start_char": 436, "end_char": 450, "source": "regex", "metadata": {}}, {"text": "Town Areas Act", "label": "STATUTE", "start_char": 1546, "end_char": 1560, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1653, "end_char": 1661, "source": "regex", "metadata": {"linked_statute_text": "Town Areas Act", "statute": "Town Areas Act"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 1963, "end_char": 1967, "source": "regex", "metadata": {"linked_statute_text": "Town Areas Act", "statute": "Town Areas Act"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2505, "end_char": 2509, "source": "regex", "metadata": {"linked_statute_text": "Town Areas Act", "statute": "Town Areas Act"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 2814, "end_char": 2818, "source": "regex", "metadata": {"statute": null}}, {"text": "Shyamlal", "label": "OTHER_PERSON", "start_char": 3599, "end_char": 3607, "source": "ner", "metadata": {"in_sentence": "864 H; 865 DJ\n\nKliem Chand v. Union of India [1958) S.C.R. 1080, 1089 and Shyamlal's case, A.I.R. 1954 S.C. 369, 374, referred to."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 5419, "end_char": 5423, "source": "regex", "metadata": {"statute": null}}, {"text": "Town Areas Act", "label": "STATUTE", "start_char": 5438, "end_char": 5452, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 5527, "end_char": 5545, "source": "ner", "metadata": {"in_sentence": "866 C-El\n\nARGUMENTS\n\nFr•r the Appellant :\n\nFrom a plain reading of s. 6-K of the U.P. Town Areas Act it is clear that if a man is dismissed from service of a local authority, Central Government or State Government by way of punishment and is debarred from re-employment thereunder, he cannot contest the elecLon for the Chairman of the Town Area_ Committee."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 5734, "end_char": 5738, "source": "regex", "metadata": {"linked_statute_text": "Town Areas Act", "statute": "Town Areas Act"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6265, "end_char": 6269, "source": "regex", "metadata": {"linked_statute_text": "Town Areas Act", "statute": "Town Areas Act"}}, {"text": "Town Area Act", "label": "STATUTE", "start_char": 6284, "end_char": 6297, "source": "regex", "metadata": {}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6338, "end_char": 6342, "source": "regex", "metadata": {"linked_statute_text": "Town Area Act", "statute": "Town Area Act"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 6674, "end_char": 6683, "source": "regex", "metadata": {"linked_statute_text": "Town Area Act", "statute": "Town Area Act"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 6698, "end_char": 6708, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Punjab Poliee Rules", "label": "STATUTE", "start_char": 6735, "end_char": 6754, "source": "regex", "metadata": {}}, {"text": "Delhi", "label": "GPE", "start_char": 6774, "end_char": 6779, "source": "ner", "metadata": {"in_sentence": "Section 7 of the Indian Police Act and r. 16(2)(iii) of th.e Punjab Poliee Rules were applicable to Delhi."}}, {"text": "Allahubad High Court", "label": "COURT", "start_char": 7827, "end_char": 7847, "source": "ner", "metadata": {"in_sentence": "Appcdl by special leave from the judgment and order dateJ the 4th April, J 973 of the Allahubad High Court in Special Appeal No."}}, {"text": "R. K. Jain", "label": "OTHER_PERSON", "start_char": 7883, "end_char": 7893, "source": "ner", "metadata": {"in_sentence": "R. K. Jain, N. R. Choudhary, Rajesh l'rns<1d Singh and\n\nK K.\n\nMohan, for the npp1:1lant."}}, {"text": "N. R. Choudhary", "label": "LAWYER", "start_char": 7895, "end_char": 7910, "source": "ner", "metadata": {"in_sentence": "R. K. Jain, N. R. Choudhary, Rajesh l'rns<1d Singh and\n\nK K.\n\nMohan, for the npp1:1lant."}}, {"text": "Rajesh l'rns<1d Singh", "label": "LAWYER", "start_char": 7912, "end_char": 7933, "source": "ner", "metadata": {"in_sentence": "R. K. Jain, N. R. Choudhary, Rajesh l'rns<1d Singh and\n\nK K.\n\nMohan, for the npp1:1lant."}}, {"text": "K K.\n\nMohan", "label": "LAWYER", "start_char": 7939, "end_char": 7950, "source": "ner", "metadata": {"in_sentence": "R. K. Jain, N. R. Choudhary, Rajesh l'rns<1d Singh and\n\nK K.\n\nMohan, for the npp1:1lant."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 7989, "end_char": 8005, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal and G. S. Chatterjee for respondent No."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 8073, "end_char": 8085, "source": "ner", "metadata": {"in_sentence": "the Court was dclivcml by\n\nKRISHNA IYER, J .-A single legal issue presents itself for solution in this appeal.", "canonical_name": "KRISHNA IYER"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 9253, "end_char": 9257, "source": "regex", "metadata": {"statute": null}}, {"text": "Town Areas Act", "label": "STATUTE", "start_char": 9272, "end_char": 9286, "source": "regex", "metadata": {}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 10428, "end_char": 10440, "source": "ner", "metadata": {"in_sentence": "AHMAD Kl{AN (Krishna Iyer, ]. )", "canonical_name": "KRISHNA IYER"}}, {"text": "Sarfraz Ahmad Khan", "label": "PETITIONER", "start_char": 10624, "end_char": 10642, "source": "ner", "metadata": {"in_sentence": "3048 Sarfraz Ahmad Khan is dismissed from the forenoon of 25-9-1963 of having been in illicit relation with Mrs. Chatterjee and her daughter."}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 10732, "end_char": 10742, "source": "ner", "metadata": {"in_sentence": "3048 Sarfraz Ahmad Khan is dismissed from the forenoon of 25-9-1963 of having been in illicit relation with Mrs. Chatterjee and her daughter."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12068, "end_char": 12072, "source": "regex", "metadata": {"statute": null}}, {"text": "Goyal", "label": "OTHER_PERSON", "start_char": 12846, "end_char": 12851, "source": "ner", "metadata": {"in_sentence": "Counsel for the contestant, Shri Goyal, strenuously argud that the Police Act and the relevant rules bearing on disciplinary action are telling and must be treated as decisive."}}, {"text": "Police Act", "label": "STATUTE", "start_char": 12880, "end_char": 12890, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13265, "end_char": 13269, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 13277, "end_char": 13287, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 311", "label": "PROVISION", "start_char": 13320, "end_char": 13331, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13759, "end_char": 13763, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 14101, "end_char": 14109, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14117, "end_char": 14121, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 14646, "end_char": 14651, "source": "ner", "metadata": {"in_sentence": "Anyone conversant with disciplinary control of government servants in India will agree that this fundamental differe'ace between mere removal and dismissul exists."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 14740, "end_char": 14748, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14984, "end_char": 14988, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 14996, "end_char": 15006, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Civil Srvant", "label": "RESPONDENT", "start_char": 16054, "end_char": 16066, "source": "ner", "metadata": {"in_sentence": "(2) The Civil Srvant under the L1w and th, Co:.stitution-by Dr. N. Narlyanan Nair-\"\"."}}, {"text": "N. Narlyanan Nair-", "label": "LAWYER", "start_char": 16110, "end_char": 16128, "source": "ner", "metadata": {"in_sentence": "(2) The Civil Srvant under the L1w and th, Co:.stitution-by Dr. N. Narlyanan Nair-\"\"."}}, {"text": "Academy of Legal Publications. Trivandrum-1 Kcrala (1973)", "label": "RESPONDENT", "start_char": 16136, "end_char": 16193, "source": "ner", "metadata": {"in_sentence": "The Academy of Legal Publications."}}, {"text": "J.M. Lal", "label": "OTHER_PERSON", "start_char": 16531, "end_char": 16539, "source": "ner", "metadata": {"in_sentence": "ABDUL SALAM v. AHMAD KHAN (Krishna Iyer, J.) 865\n\nqualifies from future employment while the latter does not Likewise, there is reference to this distinctioL in Shyamlal's Case(1) wherein it was said :\n\n\"'The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee (J.M. Lal's Case: AIR 1948 PC 121) there is no distinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does not . . ."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 18692, "end_char": 18696, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 18879, "end_char": 18883, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 21255, "end_char": 21259, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_867_877_EN", "year": 1975, "text": "' D\n\nJ. FERNANDES & CO.\n\nTHE DEPUTY CHIEF CONTROLLER OF\n\nIMPORTS & EXPORTS AND ORS.\n\nMarch 7, 1975\n\n[A. N. RAY, C. J. AND K. K. MATHEW, J.]\n\ncdnstitution of India, 1950, Articles 73(l)Ca), 239(1), 240 a11d 264(4)- depen¥ing 011 whether licence was granted before or after liberation of Goa-\n\nC/assication, if valid.\n\nCo11stitwio11 of India, 1950, A rt. 32-Grant of import licence-Petitioner no't cha//e11gi11g the validity of the Statute or statutory orders-Wrong application of law, if ll iiolation of fundamental. right. ·\n\nConstitution of India, 1950, Ardcles 73(l)(a), 239(1), 240 and 246(4)- Unfrm Territory, administration of-Union Government, if can issue executive directions to Administrator.\n\nGoa, Daman and Diu (Administration) Ordinance No. 2 cf 1962, Ss. 3, 4 and 7 and Goa, Daman and Diu (Administration) Act No. 1 of 1962, Ss. 4, 5\n\nand 9-Validarion of all actions taken in good faith and for peace and r:ood\n\nGovemment of Goa, Damon and Diu-Licence granted contrary to prccedure or by mistake or inadvertence, if could be val(dated.\n\nCo11stitution of India, 1950, Article 19(1) (/)-Rejection of application for grant of impo/'f /icence-Petitione.r, if can claim fu11damen1a/. right to the grant of licence on the basis of a policy statement.\n\nlmcmaticna/ Law-Acquisition of new Territory by Union of lndia-Rir:hts, if could be founded on pre-liberation law-Central Govemment (new Sovereign), E if can alter pre 1existing procedure for issuing impot licence.\n\nThe petitioners are a partnership firm.\n\nThey are successors to J .. Fernandes & Comriany (Original concern) of which Joshino Fernandes was the sole proprietor. Jn '.he month of October, 1961 the original concern booked orders for\n\nrurchn\"~ of Surveying & Mathematical Instruments and Surgical & Sdentific Instruments with a German fir'm.\n\nThe orders were accepted by the German firm on 7th November, 191!1.\n\nOn 19/20 December, 1961 Goa was liberated, On 18 Ja.nunry, 1962 the original con, cern applied to the Administrator of Goa for issuing an import licence for £32,652.10 for Surveying and Mathematical lnstru. ment< nd Surgical and Laboratory Equipments, along with necessary papers of .firm commitments. The original concern obtained a licence on 12 February,\n\n1962. The licence was No. 47. It opened a letter of credit on 21 February, 1962 for 50 per cent of the licence. The Central Government on 21 February, 1962 informed the Administrator, Goa, that the Central Government withheld, actio; i on all pending cases where import had been authorised. Pursuant thereto the Administrator, Goa issued directions to suspend issue of letter of credit and\n\nall cases refoting to firm commitments entered into before 18 December. 1961 which were till then not disposed of, should be frozen.\n\nOn April 2, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governed by three principles. First import would be allowed in cases (a) where letters of credits had been opened with the Banco National Ultra Marines on or before 18 December, 1961; (b) where goods were shipped on or before 20 December, 1961.\n\nSecond, imports of certain specified items were banned. Third, imports would be allowed of certain goods to the extent of 50 per cent of imports actually made in the quarter of September, October\n\nand November, 1961.\n\nThe petitioner's licence No. 47 was revalidated on 28 May, 1962 for £ 16,000 for which the peytfoner had not till then opened letter of credit.\n\nSUPREME COURT REPORTS Cl 97 51 3 s.c.It.\n\n27 February, 1962 is the date when the Administrator of Goa suspended issue of\n\nfo:sh letter of credit. In 'the month of July, 1962 the petitioner effected imports of goods for the full value.\n\nThe Imports and Exports Control Act, 1947 was applied to Goa, Daman & Diu from 1 October, 1963.\n\nIn October, 1964 the original concern was taken over by the petitioner.\n\nIn 1967 the Hamd Book for the year 1967 declared the period 1 April, 1961 to 31 March, 1966 as the basic period and any one year during the period could be: seleted a5 the basic import by the concerned party who would become the established importers.\n\nOn 15 May, 1967 the petitioner applied to the licensing authorities for recognising the change in the constitution of the firm and fixation of quota for whkh they could import the goods. The licensing authorities recognised the\n\nch~ge in. the constitution but refused to x the qu.ota on the ground that the Ongmal !tcence. No. 47 grante~ to the original concern on 12 February, 1962 was not 1SSued 111 accordance with the procedure followed for the issue of licence at. that time. The petitioner filed an appeal against the order. The appeal ':Vas re1ected.\n\nThis writ. pettion has been filed by the petitioners praying for a writ of mandamus directmg the respondents to cancel four orders mentioned in the petition and to issue quota certificate to the petitioners.\n\nIt was contended for the petitioners : (i) The petitioners' fundamental right under Art. 14 is violated because the re!pondents discriminated aga'inst the i1etitioners. The respondents granted licences to six parties. There is no diinction\n\nb<itween the cases of the petitioners and the ca~~ of the six traders.\n\n(ii) Tbe licence No. 47 dated 12 February, 1962 was a licence issued in accordance ,,1ith the procedure followed for the issue of licence at that time. The directions of the Central Government were illegal. The Central Government was not com pctent to issue directions to the Administrator of Goa except through the President in view of Arts. 239 and 240 ot the Constitution. (iii) The provisions of the Goa, Daman and Diu (Administration) Ordinance No. 2 of 1962, :and\n\nGoa, Daman and Diu. Administration Act 1 ot 1962 cured all irregularities of the State, if any, for the grant of Hcence. And (iv), the refusal to consider the application affects the fundamental right of the petitioner to carry on trade and business. ,\n\nRejecting the contentions and dismissing the writ petitions,\n\nHELD: (i) T)l(: classificatio'! of persons with reference o the. grant of import licence depending on whe!her it as .granted befor~ the. lberaton or .after !he liberation of Goa is a vahd class1ficat1011 based on mtelhgible differenha having a rational nexus with the object of import' licence policy. There is no violation of Art 14. The petitioner stands on a different footing and does not belong to the class of persons who were given import licences durini: the Portuguese Rule before liberation of Goa. [872 G-H]\n\n(ii) The petitioner does not challenge the validity of paragraph 33(n) of the Hand Book of Rules of Procedure. There is no challenge to the authority of the Deputy Chief . Controller of Imports and Exports to pass an order in the light of paragraph 33(n) of the Hand Book. [873 C]\n\nReally the petitioner's contention is that the licensing authorities misapplied or wrongly applied tiJe Imports and Exports Control, Act. A ptition under Art. 32 will not be competent to challenge any erroneous decision of an authority. [873 DJ\n\nGulabdas & Co. v. Assistant Collector of Customs, A.I.R. 1957 S.C. '/33, Sta:e of Jammu & Kashmir v. Mir Gulam Rasul, [1961] 3 S.C.R. 969, Smt. Ujfam Bai v Stale of U J°., [1963] I S.C.R. 778 and Bhatnagars & Co. Ltd. v. Union\n\nol India, [1957] S.C.R. 701 at 712, relied on.\n\nParliament has'power under Art. 246( 4) to make laws with respect to any Union Territory. The executive power of the Union under Art. 73 (1)(a) shall extend to the matters with respect to which Parliament has power to make laws.\n\nThe Union Government has. therefore, power to issue executive directions to the Administrator of a Union Territory. So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation made under Art. 240, the Administrator of a Union Territory is bound to carry out the orders and directions given by the Central Government. [875 G-H]\n\nShamsher Singh v. Stale of Punjab & Anr., A.LR. 1974 S.C. 2192, referred to.\n\nThere is no particular statute or Portuguese law which confers any right on the petitioner to get an import Hcence in the circumstances in which it was issued to him. Even if pre-liberation laws continued to be in force with effect from 5 March, 1962 that would not take away power of the Central Government to modify or alter the pre-existing procedure for issuing import licences, after liberation, in exercise of its executive .l)Owers under Art. 73(1) of the Constitution. [876 DJ\n\n(iii) Section 3 and 4 of the Goa, Daman and Diu (Administration) Ordinance No. 2 of 1961 and Section 4 an!f 5 of the Goa, Daman and Diu (Administration) Act No. 1 of 1962 do not support the case of the petitioner. These provisions io the Ordinance and the Act came into force on 5 March. 1962. The import licence was issued on 12 February, 1962 which is prior to the coming into force of the provisions of the Ordinance and the Act. After the liberation of Goa the\n\nPortuguese laws were not in force and, therefore, the petitioner cannot take recourse to the Portuguese laws for the validity of the licence which was issued on 12 Februar.v. 1962. The Chief Civil Administrator was subordinate authority to the Government of India and was bound to obey the directions of the Central Government. The Chief Civil Administrator had no authority to issue a licence m disregard of the directions of the Central Government. Such a licence would not confer any right on the petitioner. [874 C-E]\n\n\nThe petitioner cannot draw any sustenance either from section 7 of the Ordinance or section 9 of the Act for three reasons.\n\nFirst, the scope of validation is limited to such acts which were done in good faith and with the reasonable belief that they were necessary for peace and good Government. The licence was issued in contravention of lawful dLrections given by the Government of India. The licence was not issued in good faith or in a reasonable belief that\n\nthey were necessary for the peace and good Government of Goa, Daman and Diu. Second, the validation was not intended to protect breaches of directions\n\n:ssued by the new sovereign. [874 E-G]\n\nPam~ Chi bar v. Union of India, (1966] 1 S.C.R. 357, referred to.\n\nThird, in the year 1967 the Government of India laid down the conditions that imports m'ade under licences issued through inadvertence or mistake in the past would not be considered for issuing the import quota certificate. This is a matter of polky. The policy decision is also not challenged by the petitioner.\n\nIf the policy is followed and in a given case a licence was issued contrary to the procedure or by mistake or inadvertence the decision in the year 1968 in the light of the. policy enunciated in 1967 cannot be regarded. erroneous simply on the ground that the original licence erroneously issued in 1962 might be validated under s. 7 of the Ordinance. [874 H-875 BJ\n\nRevalidation was in violation of the terms and conditions set out by the Chief Civil Administrator in his Press Note dated 2 April. 1962. It is not correct to say that the Chief Civil Administrator revalidated the licence dated 12 February 1962 on 28 May, 1962. The Chief Civil Administrator merely extended. the validity of the licence for a further period of 90 days. It is not a case of revalidation of a defective licence but a case of extension of the duration of the licence. [875 C-D]\n\n(iv) No mat1:rials were shown to establish that the original concern was I.\\ A regular registered importer, That apart, no person can on the basis of a policr\n\nstakment claim a right to the grant of an import licence.\n\nThis Court has held that there is no absolute right much less a fwidamental right, to the grant of an import licence. In the present case, there is no misconstruction of any i, tatulory provbion. It cannot be said that there is no authority of law to reject\n\nan application for import licence. [876 E-E; 877 C-E]\n\nSmt. Ujjam Bai v. Stae of U.P., [1963] J SCR 778, M js. A11dhra Industrial B Works v. C/1ief Controller of Imports and Others, AIR 1974, SC 1539, and Deputy Asofawnt Iron and Stee! Cont.roller v.\n\nL. Manickchand, Proprietor, Kuoclla Met<!l Corporation, Madras, [1972] 3 SCR I, relied on.\n\nTata Iron and Steel Co. Ltd. v. S. R. Sarkar, [1961] 1 SCR 379, K. T. Moopil Nair v. The Stare of Kera/a, [1961] 3 SCR 77, Shri Madan/al Arora v. 1 he Excise and Taxation, Officer, [1962] 1 SCR 823, referred to.\n\nORIGINAL JURISDICTION : Writ Petition No. 615 of 1970. c\n\nPetition under Art. 32 of the Constitution of India.\n\nY. S. Chitale, H. N. Ramachandra and B. R. Aganwria, petitioners.\n\nP. f .. Rao and S. P. Nayar, for the respondents.\n\nThe Ju:igment of the Court was delivered by\n\nfor the\n\nRA[Y., C. J.--This writ petition is for a mandamus directing the\n\nr:spondents to cancel for orders mentioned in the petition and to issue quota certificate to the petitioners in respect of their past irniports.\n\nThe petitioners are a partnership firm.\n\nThe petitioners are E successors to J. Fernandes & Compa•11y of, which Joshino Fernandes was the sole proprietor, hereinafter referred to as the original concern.\n\nIn the month of October, 1961 the original concern booked orJcrs for purchase of Surveyi1,1g & Mathematical Instrume11ts and Surgical & Scientific Instruments with a German firm.\n\nThe orders were accepted by the German firm, as will appear from the letter F dated 7 November, 1961.\n\nOn 19/20 December, 1961 Go>a was liberated.\n\nPrior to the liberation of Goa import licences were granted to the citizens of Goa by a Government Department known as \"Junta do Comercio Externo\" which means the Board of External Trade.\n\nThe original concern is alleged to be an importer registered with the Junta priior G to the month of December, 1961.\n\nAfter the liberation of Goa the representatives of Goa Chamber of Commerce and Industry saw the Administrator of Goa wiith regard to applications for import.\n\nOn 18 January, 1962 the original concern applied to the Administrator of Goa for issuing an import licence for £ 32,652.10 for Surveying anJ Mathematical Instruments and Surgical and Laboratory Equipments, along with necessary papers for firm commitments.\n\nThe original concern obtained a licence on 12 February, 1962.\n\nThi~ licence was No. 47. The original concern was allowed to import\n\nJ, EERNANDES & CO. V. DY. CHIEF CONTROLLER (Ray, C.J.) 871\n\ninstruments, microscopes, laboratory apparatus and utensils all worth £32,652-10-0. The original concern opened a letter of credit on 21 February, 1962 for 50 per cent of the licence.\n\nThe Central Government on 21 February, 1962 informed the Administrator, Goa, that the Central Govem.ment withheld action on all pending cases where import had been authorised. The Central Government gave two reasons.\n\nFirst, the Government were of the view that any relaxation o~ import would result in serious drain on foreign exchange, and second that it was difficult for any :;.uthority to be satisfied about the firm commitments and some abuse was possible.\n\nPursuant thereto. the Administrator, Goa issued direcfrons to suspend issue of letter of credit and all cases relating to firm commitments entered into before 18 December, 1961 which were till then, not disposed of, should be frozen.\n\nOn 2 April, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governeJ by three principles. First, import would be allowed in cases (a) where letters of credits had been opened with the Banco National Ultra Marines 01,1 or before 18 December, 1961; (b) where go'Ods were shipped on or before 20 December, 1961. Second, imports of certain specified items were banned.\n\nThird, imports would be allowed of certain goods to the extent of 50 per cent of imports actually made in the quarter of September, Octuber and November, .1961.\n\nThe petitioner's licence No. 47 was revalidated on 28 May, 1962 for £ 16,000 for which the petitioner had not till then opened letter of credit. 27 February, 1962 is the date when the Administrator of Goa had suspended to issue fresh letter of credit.\n\nIn the month of July, 1962 the petitioner effected imports of goods for the full value.\n\nThe Imports and Exports Control Act, 1947 was applied to Goa, Daman & Diu from 1 Octber, 1963.\n\nF In October, 1964 the original concern was mken over by the\n\npetitioner.\n\nIn 1967 the Hand Book for the year 1967 declared the peri'od 1 April, 1961 to 31 March, 1966 as the bask period and any one year during the period could be selected as the basic import by the concerned party who would become the established importers.\n\nOn 15 May, 1967 the petitioner applied to the licensing authorities for recognising the change in the constitution of the firm and fixation of quota for which they could import the goods. The Iicens-. ing authorities recognised the change in the constitution but refused to fix the quota on the ground that the original licence No. 47 granted to the original concern on 12 February, 1962 was not issued h1 accordance with the procedure followed for the issue of licence at that time.\n\nThe petitioner filed an appeal against the order.\n\nThe appeal was rejected.\n\nThe petitioner filed a review application which was rejected.\n\nThe petitioner's grievances are these: First, licence No. 47 d'ated 12 February, 1962 was a licence issued in accordance with the proc; edure followed for the issue of licence at that time.\n\nThe directions of the Central Government were illegal.\n\nThe Central Government was not competent to issue directions to the Administrator of Goa except through the President in view of Articles 239 and 240 of the Constitution.\n\nSecond, the provisions of the Goa, Daman, Diu Administration Ordinance No. 2 of 1961, hereinafter referred to as lthe Ordinance and Goa, Daman, Diu Administration Act 1 0£ 1962 hereinafter referred to as the Act cured all irregularities of the State, li! any, for the grant of licence. Third, refusal to consider the applicat10n affects the fundamental right of the petitioner to carry ota trade and. buiness. Fourth, the petitioner's fundamental right under Article\n\n1_4 1s v1lated because the responde_nts discriminated against the petitroner. fhe respondents granted hcences to six parties. It is said that the conditions, namely, shipping . before 20 December 1961 and opening of letters of credit before 18 December 1961 'could only operate in respect of licences issued by the Portu'guese Government.\n\nWhen by reason of policy, hese were the conditions applied, the same should have been applied even to those who were given licences under the old laws by the Portuguese Government or those who were given licences by the AJministrator of Go:1 under the operation of the old laws.\n\nThere is no distinction between the cases of the petitioner and the case of six traders mentioned in Annexure R-4 at page 169.\n\nThe contention of the petitioner tlrnt six traders have been granted licences whereas the petitioner was not, and, there was violation under Article 14 is unacceptable.\n\nThese six licences were issued before liberatio!l between the period 12 February, 1961 and 4 December, 1961.\n\nTI1c six licences were issued prior to the liberation of Goa.\n\nThe liberation 'Of Goa was on 19 December, 1961.\n\nOn 20 December, 1961 Goa became a Union Territory.\n\nThe licence on which the petitioner bases the claim was dated 12 February, 1962.\n\nThe petitioner was not admittedly issued any licence before the liberation of Goa.\n\nBetween the liberation of Goa and the application of the petitioner for licence, the Government of India issued on 3 January, 1962 to the Chief Civil Administrator, Goa certain directions regarding the issue of import licence.\n\nThe original concern had not opened letter of credit before 18 December, 1961 and the goods in question were not shipped prior to 20 December, 1961.\n\nThe application of the petitioner was subsequent to the issue of directions dated 3 January, 1962 by the G.:ivernment of India that imports would be allowed if letter of credit had been opened before 18 December, 1961 or shipment had taken place before 20 December, 1961.\n\nThe classification of per:; ons with reference to the grant of import licence depending on whether it was granted before the liberation or after the liberation of Goa is a valid classification based on intelligible differentia having a rational nexus with the object of import licence policy.\n\nThere is no violation of' Article 14. 'The petitioner stands on a different footing and docs not belong to the class of pers:ons who were given import lic:ences during the Portuguese Rule before the liberation of Goa.\n\nThe petitioner challenges the orders doate~ 28 September, 196~ rejecting the petitioner's applicati?n for the issue of quota certificate.\n\nThe Government rejected rt on the ground that hcence No. 4 7 dated 12 February, 1962 was not issued in acc?rdance with the procedure prescribed for issue of licences, at that time. The Government relied on paragraph 33 (n ) of the Hand Book ?f Rules, 1968. In shor.t, that paragraph is that licence would be given only for the ?as1c period between 1 April 1961 and 31 March, 1966 to establlshe<l importers. The Governrhent took. th~ stand tat the titioner is not eligible because there was , no valid hcence. fhe petitioner does not challenge the validity of any provision of the Imports and Bports\n\n(Control) Act, 194 7, oc any provision of any statutory. orders issued thereunder.\n\nThe petitioner does not challenge the vahd1ty of para graph 33 (n) of the Hand Book of Rules of Procedure. There is no challenge to the authority of the Deputy Chief Controller of Imports and Exports to pass an .order in the light of paragraph 33(n) of the Hand Book.\n\nReoally, the petitioner's contention is that the licensing authorities misapplied or wrongly applied the Imports and Exports Ce1,1trol Act.\n\nA petition under Article 32 will not be competent to challenge any erroneous decision of an authority. (See Gulabdas & Co. v. Assistant Collector of Customs(!) and State of Jammu & Kashmir v. Mh Gulam Rasul). (2) A wrong application of Jaw would not amount to a violation of fundame\\1tal right.\n\nDas, C.J. said in the case of Gulabdas & Co. (supm) that ; f the provisions of Jaw are good and the orders passed are within the jurisdiction of the authorities there is no infraction of fundamental right if the authorities are right or wrong on facts.\n\nIn the case of Gulabdas & Co. (supra) the petitioners challenged the order of the Assistant Collector of Customs.\n\nThe Customs authorities assessed duty under Item 45 ( 4) of the Indiaf,1 Customs Tariff.\n\nThe petitioners in that case contended that the duty should have been assessed under Item 45 (a). This Court held that there was neither any violation of fundamental right under Article 19 or any unequal treatment and the petition was not maintainable. This Comt in the case of Smt. Ujjam Bai v. State of U.P.( 3) as also in the case of Bhatnagars & Co. Ltd. v. Union of India,(4 ) held the same view that any erroneous decision would not be a violation of fundamental rights ..\n\nThe petitioner relied 01,1 sections 3, 4 and 7 of the Goa, Daman & Diu (Administration) Ordinance 1962. Section 3 of the Ordinance G in short stated that authorities who immediately before the commencement of this Ordin•ance were exercising lawful fu 1.1ctions in connection with the Administratio11 of Goa, Daman and Diu or any part thcreofl shall, unless otherwise directed continue to exercise in connection with such administration thei't' respective functions. Section 4 or the Ordinance speaks of continuance of existi'ng laws and their adaptation l H until amended or repealed by a competent legislature. Section 7 says -ihat all things done and all actions taken on or 11.fter the appointed day\n\n(I) A.l.R. 1957 S.C. 733.\n\n\n(3) [1963] l S.C.R. 778.\n\n(4) [1957] S.C.R. 701 at 712.\n\nwhich was 20 December, 1961 and before the commencement of the on: nance, viz., 5 March, 1962 by the Administrator. or any other\n\noffkcr which have been done or taken in good faith and in a reasonable belief that they were necessary for the peace and good Government of Goa, Daman and Diu, shall be as valid and operative as if they had been done or taken in accordance with Jaw.\n\nThe petitio~1er also relied on sections 4, 5 and 9 of the Act. Section 4 speaks of officers who before the commencement of the Act were exercising lawful functions would continue to exercise their rnspective functions.\n\nSection 5 of the Act speaks of continuance of existing. laws and their adaptation until a.mended or altered by the competent Legislature.\n\nSectioi.1 9 of the Act speak~ of validation of ce:rtam action and indemnity of officers for certain acts similar to section 7 of. the Ordina.nce ..\n\nSections 3 and 4 of the Goa, Daman and Diu (Administration) Ordianance No. 2 of 1961 and Sections 4 and 5 of the Goa, Dama1,1 and Diu (Administration) Act No.1 of 1962 do not support the case of the petitioner. These provisions in the Ordinance and the Act came into force on 5 March, 1962. The import licence was i1:sued on 12 Febmary, 1962 which is prior to the comi'ng into force of the provisions of the Ordinance and the Act. After the liberation of Goa the Portuguese laws were not in force and, therefore, the petitioner cannot take recourse to the Portuguese laws for the validity of the licence which was issued en 12 February, 1962. The Chief Civil Administrator was subordinate authority to the Government of India a.nd was boirad to obey the directions of the Central Government. The Chief Civil Administrator had no authority to issue a licence in disregard of the directions of the Central Government.\n\nSuch a Iicenct~ would not confer any right on the petitioner (See State of Punjab v. Jagdip Sm&h) ((I).\n\nThe petitioner cannot draw a'ay sustenance either from section 7 of th~ Ordinance or section 9 of the Act for three reasons. First, the scope of validation is limited to such acts which were done in good faith and with the reasonable belief that they were necessary for peace and good Government. The licence was issued in cO'ntravention of lawful directions given by the Government. of India.\n\nThe licence was not issued in good faith or in a reasonable belief that the:y were necessary for the peace and good Government of Goa, Dama~1 and Diu.\n\nSecond, the validation was not intended to protect breaches of directions issued by the new soveeign. (See Pama Chibar v. Union of India) (2).\n\nIf the licence dated 12 February, 1962 was validated by section 7 of the Ordinance that validatida would be an answer to any move on the part of the responde11ts to cancel that particular licence.\n\nWhat was deemed to be valid by legal fiction for a certain purpose, notwithstanding the infirmity in granting it, cannot confer any right ml the petitioner to claim in future as a matter of right, any import quota.\n\n\nThe validation would be only in respect of past transactions.\n\nThird, in the year 1967 the Govemment of India laid down the conditions that imports made under licences issued through inadvertence or mistake in the past would not be considered for issuing the import quota l.!ertificate.\n\nThis is a matter of policy.\n\nNormally, courts do not go into such policy decision.\n\nThe policy decision is also not challenged by the petitioner.\n\nIf the policy is followed and in a given case a liceace was issued contrary to the procedure or by mistake or inadvertence, the decision in the year 1968 in the light of the policy enunciated in 1967 cannot be regarded erroneous simply on the ground that the original licence erroneously issued in 1962 might be validated under section 7 of the Ordinance.\n\nA1,1y revalidation of the licence on 28 May, 1962 by the Administra tor would not assist the petitioner in regard to obtait1ing CjUOla dghto;.\n\nOn 12 April, 1962 the Administrator himself issued a Press Note specifying the conditions subject to which imports would be allowed. • Revalidation was in violation of the terms and conditions set out by the Chief Civil Administrator in his Press Note dated 2 April, 1962.\n\nIt is not correct to say that the Chief Civil Administrator revalidated the licence dated 12 February, 1962 on 28. May, 1962. The Chief Civil Admi~1istrator merely extended the validity of the licence for a further period of 90 days.\n\nIt is not a case of revalidation of a dfec tive licence but a case of extension of the duration of the licence. If the original licence was defective mere extension of the duratio1a of the licence could not cure the defect.\n\nIn any event, the protection, if any, of the validating section in the Ordinance would not extend beyond 4 March, 1962 because the acts validated u'nder section 7 of the Ordinance must have been done between 20 December, 1961 and 4 March, 1962.\n\nThe directions issued by the Central Government 'are impeached by the petitioner to be in violation of Articles 239 and 240 of the Constitution.\n\nUnder Article 1 (3) (c) of the Constitution, Goa, Daman and Diu became part of the territory of India by acquisition.\n\nGoa, Daman and Diu became a Union Territory on and from the date of their acquisition by the Government of India.\n\nUnder Article 239 ( 1) a Union Territory shall be administered by the President acting through an Administrator.\n\nArticle 240 empowers the President to make regulations for the peace, progress and good Government of the l~ 1nion Territory. In the present case no Presidential Regulation was relied on by either side.\n\nParliament has power under Article 246 ( 4) to make laws with respect to any Union Territory. The executive power of the Union under Article 73 (1) (a) shall extend to the matters with respect to which Parliame'nt has power to make laws.\n\nThe Union Government has, therefore, power to issue executive directions to the Administrator of a Union Territory.\n\nSo long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation made under Article 240, the Administrator of a Union Territory is boul1d to carry out the orders and directions given by the Central Government.\n\nThe decision of this Court in Shamsher Singh v. State\n\nof Punjab & Anr.(I) is that the powers conferred on the Prsident by Article 239 are to be exercised by him on the aid and advice of the Cabinet. Therefore, the directions issued by the Central Government are valid because of the combined effect of Article 73 and Atricle 246 which CO'a.fers power on the Union executive to exercise powers in respect of matters with respect to which Parliament has competence to make laws.\n\nln the present case, ihe Chief Civil Administrator himself declared in a Press Note dated 2 April, 1962 the terms and conditions subject to which import licence would be grante.d .. The alleged revalidation of licence No. 47 in the month of May, 1962 took place subsequent to\n\ntle Press Note a.nd contrary to the terms and conditions. It was really not a revalidation of the licence but an extension of the period, If the licence itself was defective, there could not be any validation of the licence as was c:ontended for by the petitioner.\n\nThere is no par1:icular statute or Portuguese law which confers a!ay right on the petitioner to get an import licence in the circumstanies . in which it was issued to him. Even if pre-liberation laws continued\n\nto be in force with effect from 5 March, 1962 that would not take D away power of the Central Government to modify or alter the preexisting procedure for issuing import licences, after liberation, in exercise of its exei::utive powers under Article 73 (1) of the Constituti<Jl11.\n\nThe: petitioner contended that the original concerh was an importer registered with t:he Ju1ata prior to December, 1961. The respondents denied th•at allegation. The petitioner in the rejoinder alleged that it is\n\nJ<: to be presumed that the original importer must have been registered wiith the Ju'nta, prior to the liberation. No materials were shown to establish that thi~ original concern was a regular registered importer.\n\nThe contu1tion on behalf of the respondents that tbe licence was issued without following the regular procedure and by inadvertence or misrake is borne by the facts and circumstances of the case particularly because the Chief Civil Administrator had no authority to issue a11y import F licences in contravention of the directions of the Central Government issued on 3 January, 1962.\n\nThe petitioner relied on the decision of this Court in M/s. Andhra Industrial Works v. Chief Controller of Imports and others(2) in support of t_he proposition appearing at page 1542 of the Report. The proposition stated there in that one of the instances in relation to laws G regulating the citizen's right to carry on trade or business guarantef:d by Article l 9(1) (g) may be catalogued as where the impugned acticin. is based on a misconstruction of the intra vires statute or is so contrary to the established procedure or rules of natural justice that it resul:ts in violation of •,1 fundamental right.\n\nIn the case of M /s. A ndhra Industrial Works (supra) the proposition which was extracted from\n\nUjjmnhai's case (supra) is that an order of assessment made by an . authority under a taxing statute which is intra vires, cMnot be challeng- H ed under Article 32 as repugnant to Article 19(1) (g) on the sol~\n\n(l) A.LR.1974 S.C. 2192.\n\n(2)A.I.R. 1974 S.C. 1539,\n\nground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder. fa Ujjambai's case (supra) it was said that when assessment proceedings are repugnant to rules of natural justice there is an infringement of the right guaranteed under Article 19 (1 )(f) and 19 (1 )(g). In support of that proposition reference was .made to Tata lrO, n and Steel Co. Ltd. v. S. R. Sarkar('), K. T. Moopil Nair v. The State of Kerala( 2 ) and Shn Madan. lal Arora v. The Excise and Taxation Officer(8 ).\n\nIn the case of Andhra Industrial Works (supra) an objectfon was raised on behalf of the resondents that the petition was not compe tent because there was no violation of fundame111tal rights. This Court upheld that objection and said that neither the Imports and Exports (Control) Act nor any order thereunder was alleged to be ultra vires nor was the Import Control Policy impeached. A policy statement was held to be not a statutory document. No person can dn. the basis of a policy statement claim a right to the grant of an import licence.\n\nThis Court. also held that there is no absolute right much less a fundamental right, to the grant of an import licence.\n\nThis Court in Deputy Assistant Iron and Steel Controller v. L Manickchand, Proprietor, Katrella Metal Corporation, Madras(') held that no one has any vested right to an import licence in terms of the policy in force at the time of his application. There is no misconstrue tion of any statutory provision in the present case. In the present case, it cannot be said that there is no authority of law to reject an application for import licence.\n\nFor these reasons, the petition fails and is dismissed. Parties will pay and bear their own costs.\n\nV.M.K.\n\n\n(3) [196211 S.C.R. 823.\n\nPetition dismissed.\n\n\n(4) [197l] 3 S.C.R. 1.", "total_entities": 128, "entities": [{"text": "D\n\nJ. FERNANDES & CO", "label": "PETITIONER", "start_char": 2, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "J. FERNANDES & CO", "offset_not_found": false}}, {"text": "THE DEPUTY CHIEF CONTROLLER OF\n\nIMPORTS & EXPORTS AND ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "THE DEPUTY CHIEF CONTROLLER OF IMPORTS & EXPORTS AND ORS", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 101, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW, J.", "label": "JUDGE", "start_char": 122, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "Articles 73(l)", "label": "PROVISION", "start_char": 170, "end_char": 184, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 526, "end_char": 547, "source": "regex", "metadata": {}}, {"text": "Ss. 3, 4 and 7", "label": "PROVISION", "start_char": 764, "end_char": 778, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Goa, Daman and Diu (Administration) Act", "label": "STATUTE", "start_char": 783, "end_char": 822, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ss. 4, 5\n\nand 9", "label": "PROVISION", "start_char": 838, "end_char": 853, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 19(1)", "label": "PROVISION", "start_char": 1080, "end_char": 1093, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "J .. Fernandes & Comriany", "label": "RESPONDENT", "start_char": 1539, "end_char": 1564, "source": "ner", "metadata": {"in_sentence": "They are successors to J .. Fernandes & Comriany (Original concern) of which Joshino Fernandes was the sole proprietor."}}, {"text": "Joshino Fernandes", "label": "OTHER_PERSON", "start_char": 1593, "end_char": 1610, "source": "ner", "metadata": {"in_sentence": "They are successors to J .. Fernandes & Comriany (Original concern) of which Joshino Fernandes was the sole proprietor."}}, {"text": "7th November, 191!1", "label": "DATE", "start_char": 1862, "end_char": 1881, "source": "ner", "metadata": {"in_sentence": "The orders were accepted by the German firm on 7th November, 191!1."}}, {"text": "19/20 December, 1961", "label": "DATE", "start_char": 1887, "end_char": 1907, "source": "ner", "metadata": {"in_sentence": "On 19/20 December, 1961 Goa was liberated, On 18 Ja.nunry, 1962 the original con, cern applied to the Administrator of Goa for issuing an import licence for £32,652.10 for Surveying and Mathematical lnstru."}}, {"text": "18 Ja.nunry, 1962", "label": "DATE", "start_char": 1930, "end_char": 1947, "source": "ner", "metadata": {"in_sentence": "On 19/20 December, 1961 Goa was liberated, On 18 Ja.nunry, 1962 the original con, cern applied to the Administrator of Goa for issuing an import licence for £32,652.10 for Surveying and Mathematical lnstru."}}, {"text": "Goa", "label": "GPE", "start_char": 2003, "end_char": 2006, "source": "ner", "metadata": {"in_sentence": "On 19/20 December, 1961 Goa was liberated, On 18 Ja.nunry, 1962 the original con, cern applied to the Administrator of Goa for issuing an import licence for £32,652.10 for Surveying and Mathematical lnstru."}}, {"text": "12 February,\n\n1962", "label": "DATE", "start_char": 2229, "end_char": 2247, "source": "ner", "metadata": {"in_sentence": "The original concern obtained a licence on 12 February,\n\n1962."}}, {"text": "21 February, 1962", "label": "DATE", "start_char": 2305, "end_char": 2322, "source": "ner", "metadata": {"in_sentence": "It opened a letter of credit on 21 February, 1962 for 50 per cent of the licence."}}, {"text": "Central Government", "label": "ORG", "start_char": 2359, "end_char": 2377, "source": "ner", "metadata": {"in_sentence": "The Central Government on 21 February, 1962 informed the Administrator, Goa, that the Central Government withheld, actio; i on all pending cases where import had been authorised."}}, {"text": "18 December.", "label": "DATE", "start_char": 2693, "end_char": 2705, "source": "ner", "metadata": {"in_sentence": "Pursuant thereto the Administrator, Goa issued directions to suspend issue of letter of credit and\n\nall cases refoting to firm commitments entered into before 18 December."}}, {"text": "April 2, 1962", "label": "DATE", "start_char": 2771, "end_char": 2784, "source": "ner", "metadata": {"in_sentence": "On April 2, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governed by three principles."}}, {"text": "Daman", "label": "GPE", "start_char": 2853, "end_char": 2858, "source": "ner", "metadata": {"in_sentence": "On April 2, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governed by three principles."}}, {"text": "Diu", "label": "GPE", "start_char": 2863, "end_char": 2866, "source": "ner", "metadata": {"in_sentence": "On April 2, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governed by three principles."}}, {"text": "Banco National Ultra Marines", "label": "ORG", "start_char": 2999, "end_char": 3027, "source": "ner", "metadata": {"in_sentence": "First import would be allowed in cases (a) where letters of credits had been opened with the Banco National Ultra Marines on or before 18 December, 1961; (b) where goods were shipped on or before 20 December, 1961."}}, {"text": "Cl 97", "label": "PROVISION", "start_char": 3507, "end_char": 3512, "source": "regex", "metadata": {"statute": null}}, {"text": "Imports and Exports Control Act, 1947", "label": "STATUTE", "start_char": 3725, "end_char": 3762, "source": "regex", "metadata": {}}, {"text": "1 October, 1963", "label": "DATE", "start_char": 3800, "end_char": 3815, "source": "ner", "metadata": {"in_sentence": "The Imports and Exports Control Act, 1947 was applied to Goa, Daman & Diu from 1 October, 1963."}}, {"text": "15 May, 1967", "label": "DATE", "start_char": 4147, "end_char": 4159, "source": "ner", "metadata": {"in_sentence": "On 15 May, 1967 the petitioner applied to the licensing authorities for recognising the change in the constitution of the firm and fixation of quota for whkh they could import the goods."}}, {"text": "12 February, 1962", "label": "DATE", "start_char": 4509, "end_char": 4526, "source": "ner", "metadata": {"in_sentence": "47 grante~ to the original concern on 12 February, 1962 was not 1SSued 111 accordance with the procedure followed for the issue of licence at."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 4996, "end_char": 5003, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 239 and 240", "label": "PROVISION", "start_char": 5562, "end_char": 5579, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art 14", "label": "PROVISION", "start_char": 6339, "end_char": 6345, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 6968, "end_char": 6975, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1961] 3 S.C.R. 969", "label": "CASE_CITATION", "start_char": 7178, "end_char": 7197, "source": "regex", "metadata": {}}, {"text": "Art. 246( 4)", "label": "PROVISION", "start_char": 7363, "end_char": 7375, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 73", "label": "PROVISION", "start_char": 7465, "end_char": 7472, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 7530, "end_char": 7540, "source": "ner", "metadata": {"in_sentence": "73 (1)(a) shall extend to the matters with respect to which Parliament has power to make laws."}}, {"text": "Art. 240", "label": "PROVISION", "start_char": 7808, "end_char": 7816, "source": "regex", "metadata": {"linked_statute_text": "So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation", "statute": "So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation"}}, {"text": "5 March, 1962", "label": "DATE", "start_char": 8264, "end_char": 8277, "source": "ner", "metadata": {"in_sentence": "Even if pre-liberation laws continued to be in force with effect from 5 March, 1962 that would not take away power of the Central Government to modify or alter the pre-existing procedure for issuing import licences, after liberation, in exercise of its executive .l)Owers under Art."}}, {"text": "Art. 73(1)", "label": "PROVISION", "start_char": 8472, "end_char": 8482, "source": "regex", "metadata": {"linked_statute_text": "So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation", "statute": "So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation"}}, {"text": "Section 3 and 4", "label": "PROVISION", "start_char": 8519, "end_char": 8534, "source": "regex", "metadata": {"linked_statute_text": "So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation", "statute": "So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 8606, "end_char": 8615, "source": "regex", "metadata": {"linked_statute_text": "So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation", "statute": "So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation"}}, {"text": "Goa, Daman and Diu (Administration) Act", "label": "STATUTE", "start_char": 8630, "end_char": 8669, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "These provisions io the Ordinance and the Act", "label": "STATUTE", "start_char": 8727, "end_char": 8772, "source": "regex", "metadata": {}}, {"text": "5 March. 1962", "label": "DATE", "start_char": 8792, "end_char": 8805, "source": "ner", "metadata": {"in_sentence": "These provisions io the Ordinance and the Act came into force on 5 March."}}, {"text": "12 Februar.v. 1962", "label": "DATE", "start_char": 9140, "end_char": 9158, "source": "ner", "metadata": {"in_sentence": "After the liberation of Goa the\n\nPortuguese laws were not in force and, therefore, the petitioner cannot take recourse to the Portuguese laws for the validity of the licence which was issued on 12 Februar.v."}}, {"text": "Government of India", "label": "ORG", "start_char": 9223, "end_char": 9242, "source": "ner", "metadata": {"in_sentence": "The Chief Civil Administrator was subordinate authority to the Government of India and was bound to obey the directions of the Central Government."}}, {"text": "section 7", "label": "PROVISION", "start_char": 9557, "end_char": 9566, "source": "regex", "metadata": {"linked_statute_text": "These provisions io the Ordinance and the Act", "statute": "These provisions io the Ordinance and the Act"}}, {"text": "section 9", "label": "PROVISION", "start_char": 9587, "end_char": 9596, "source": "regex", "metadata": {"linked_statute_text": "These provisions io the Ordinance and the Act", "statute": "These provisions io the Ordinance and the Act"}}, {"text": "Diu", "label": "OTHER_PERSON", "start_char": 10040, "end_char": 10043, "source": "ner", "metadata": {"in_sentence": "The licence was not issued in good faith or in a reasonable belief that\n\nthey were necessary for the peace and good Government of Goa, Daman and Diu."}}, {"text": "(1966] 1 S.C.R. 357", "label": "CASE_CITATION", "start_char": 10192, "end_char": 10211, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 10870, "end_char": 10874, "source": "regex", "metadata": {"statute": null}}, {"text": "[1961] 1 SCR 379", "label": "CASE_CITATION", "start_char": 12269, "end_char": 12285, "source": "regex", "metadata": {}}, {"text": "[1961] 3 SCR 77", "label": "CASE_CITATION", "start_char": 12329, "end_char": 12344, "source": "regex", "metadata": {}}, {"text": "[1962] 1 SCR 823", "label": "CASE_CITATION", "start_char": 12404, "end_char": 12420, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 12509, "end_char": 12516, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 12524, "end_char": 12545, "source": "regex", "metadata": {}}, {"text": "Y. S. Chitale", "label": "PETITIONER", "start_char": 12548, "end_char": 12561, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitale, H. N. Ramachandra and B. R. Aganwria, petitioners."}}, {"text": "H. N. Ramachandra", "label": "PETITIONER", "start_char": 12563, "end_char": 12580, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitale, H. N. Ramachandra and B. R. Aganwria, petitioners."}}, {"text": "B. R. Aganwria", "label": "PETITIONER", "start_char": 12585, "end_char": 12599, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitale, H. N. Ramachandra and B. R. Aganwria, petitioners."}}, {"text": "P. f .. Rao", "label": "LAWYER", "start_char": 12615, "end_char": 12626, "source": "ner", "metadata": {"in_sentence": "P. f .. Rao and S. P. Nayar, for the respondents."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 12631, "end_char": 12642, "source": "ner", "metadata": {"in_sentence": "P. f .. Rao and S. P. Nayar, for the respondents."}}, {"text": "J. Fernandes", "label": "OTHER_PERSON", "start_char": 13009, "end_char": 13021, "source": "ner", "metadata": {"in_sentence": "The petitioners are E successors to J. Fernandes & Compa•11y of, which Joshino Fernandes was the sole proprietor, hereinafter referred to as the original concern."}}, {"text": "7 November, 1961", "label": "DATE", "start_char": 13401, "end_char": 13417, "source": "ner", "metadata": {"in_sentence": "The orders were accepted by the German firm, as will appear from the letter F dated 7 November, 1961."}}, {"text": "Go", "label": "PETITIONER", "start_char": 13444, "end_char": 13446, "source": "ner", "metadata": {"in_sentence": "On 19/20 December, 1961 Go>a was liberated."}}, {"text": "Junta do Comercio Externo", "label": "ORG", "start_char": 13585, "end_char": 13610, "source": "ner", "metadata": {"in_sentence": "Prior to the liberation of Goa import licences were granted to the citizens of Goa by a Government Department known as \"Junta do Comercio Externo\" which means the Board of External Trade."}}, {"text": "Goa Chamber of Commerce and Industry", "label": "ORG", "start_char": 13823, "end_char": 13859, "source": "ner", "metadata": {"in_sentence": "After the liberation of Goa the representatives of Goa Chamber of Commerce and Industry saw the Administrator of Goa wiith regard to applications for import."}}, {"text": "18 January, 1962", "label": "DATE", "start_char": 13934, "end_char": 13950, "source": "ner", "metadata": {"in_sentence": "On 18 January, 1962 the original concern applied to the Administrator of Goa for issuing an import licence for £ 32,652.10 for Surveying anJ Mathematical Instruments and Surgical and Laboratory Equipments, along with necessary papers for firm commitments."}}, {"text": "18 December, 1961", "label": "DATE", "start_char": 15188, "end_char": 15205, "source": "ner", "metadata": {"in_sentence": "the Administrator, Goa issued direcfrons to suspend issue of letter of credit and all cases relating to firm commitments entered into before 18 December, 1961 which were till then, not disposed of, should be frozen."}}, {"text": "2 April, 1962", "label": "DATE", "start_char": 15267, "end_char": 15280, "source": "ner", "metadata": {"in_sentence": "On 2 April, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governeJ by three principles."}}, {"text": "28 May, 1962", "label": "DATE", "start_char": 15891, "end_char": 15903, "source": "ner", "metadata": {"in_sentence": "47 was revalidated on 28 May, 1962 for £ 16,000 for which the petitioner had not till then opened letter of credit."}}, {"text": "27 February, 1962", "label": "DATE", "start_char": 15985, "end_char": 16002, "source": "ner", "metadata": {"in_sentence": "27 February, 1962 is the date when the Administrator of Goa had suspended to issue fresh letter of credit."}}, {"text": "Imports and Exports Control Act, 1947", "label": "STATUTE", "start_char": 16186, "end_char": 16223, "source": "regex", "metadata": {}}, {"text": "1 Octber, 1963", "label": "DATE", "start_char": 16261, "end_char": 16275, "source": "ner", "metadata": {"in_sentence": "The Imports and Exports Control Act, 1947 was applied to Goa, Daman & Diu from 1 Octber, 1963."}}, {"text": "31 March, 1966", "label": "DATE", "start_char": 16431, "end_char": 16445, "source": "ner", "metadata": {"in_sentence": "In 1967 the Hand Book for the year 1967 declared the peri'od 1 April, 1961 to 31 March, 1966 as the bask period and any one year during the period could be selected as the basic import by the concerned party who would become the established importers."}}, {"text": "Articles 239 and 240", "label": "PROVISION", "start_char": 17607, "end_char": 17627, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Diu Administration Ordinance", "label": "STATUTE", "start_char": 17692, "end_char": 17720, "source": "regex", "metadata": {}}, {"text": "Diu Administration Act", "label": "STATUTE", "start_char": 17794, "end_char": 17816, "source": "regex", "metadata": {}}, {"text": "Article\n\n1", "label": "PROVISION", "start_char": 18109, "end_char": 18119, "source": "regex", "metadata": {"linked_statute_text": "Diu Administration Act", "statute": "Diu Administration Act"}}, {"text": "18 December 1961", "label": "DATE", "start_char": 18359, "end_char": 18375, "source": "ner", "metadata": {"in_sentence": "before 20 December 1961 and opening of letters of credit before 18 December 1961 'could only operate in respect of licences issued by the Portu'guese Government."}}, {"text": "Portu'guese Government", "label": "ORG", "start_char": 18433, "end_char": 18455, "source": "ner", "metadata": {"in_sentence": "before 20 December 1961 and opening of letters of credit before 18 December 1961 'could only operate in respect of licences issued by the Portu'guese Government."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 19007, "end_char": 19017, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "20 December, 1961", "label": "DATE", "start_char": 19262, "end_char": 19279, "source": "ner", "metadata": {"in_sentence": "On 20 December, 1961 Goa became a Union Territory."}}, {"text": "3 January, 1962", "label": "DATE", "start_char": 19937, "end_char": 19952, "source": "ner", "metadata": {"in_sentence": "The application of the petitioner was subsequent to the issue of directions dated 3 January, 1962 by the G.:ivernment of India that imports would be allowed if letter of credit had been opened before 18 December, 1961 or shipment had taken place before 20 December, 1961."}}, {"text": "India", "label": "GPE", "start_char": 19976, "end_char": 19981, "source": "ner", "metadata": {"in_sentence": "The application of the petitioner was subsequent to the issue of directions dated 3 January, 1962 by the G.:ivernment of India that imports would be allowed if letter of credit had been opened before 18 December, 1961 or shipment had taken place before 20 December, 1961."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 20448, "end_char": 20458, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 21891, "end_char": 21901, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Das", "label": "JUDGE", "start_char": 22170, "end_char": 22173, "source": "ner", "metadata": {"in_sentence": "Das, C.J. said in the case of Gulabdas & Co. (supm) that ; f the provisions of Jaw are good and the orders passed are within the jurisdiction of the authorities there is no infraction of fundamental right if the authorities are right or wrong on facts."}}, {"text": "Gulabdas & Co.", "label": "ORG", "start_char": 22200, "end_char": 22214, "source": "ner", "metadata": {"in_sentence": "Das, C.J. said in the case of Gulabdas & Co. (supm) that ; f the provisions of Jaw are good and the orders passed are within the jurisdiction of the authorities there is no infraction of fundamental right if the authorities are right or wrong on facts."}}, {"text": "Article 19", "label": "PROVISION", "start_char": 22807, "end_char": 22817, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "sections 3, 4 and 7", "label": "PROVISION", "start_char": 23136, "end_char": 23155, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 23213, "end_char": 23222, "source": "regex", "metadata": {"statute": null}}, {"text": "Daman", "label": "PETITIONER", "start_char": 23417, "end_char": 23422, "source": "ner", "metadata": {"in_sentence": "Section 3 of the Ordinance G in short stated that authorities who immediately before the commencement of this Ordin•ance were exercising lawful fu 1.1ctions in connection with the Administratio11 of Goa, Daman and Diu or any part thcreofl shall, unless otherwise directed continue to exercise in connection with such administration thei't' respective functions.", "canonical_name": "Daman"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 23575, "end_char": 23584, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 23721, "end_char": 23730, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 4, 5 and 9", "label": "PROVISION", "start_char": 24310, "end_char": 24329, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 24342, "end_char": 24351, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 24499, "end_char": 24508, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 24754, "end_char": 24763, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 3 and 4", "label": "PROVISION", "start_char": 24787, "end_char": 24803, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 4 and 5", "label": "PROVISION", "start_char": 24876, "end_char": 24892, "source": "regex", "metadata": {"statute": null}}, {"text": "These provisions in the Ordinance and the Act", "label": "STATUTE", "start_char": 24998, "end_char": 25043, "source": "regex", "metadata": {}}, {"text": "12 Febmary, 1962", "label": "DATE", "start_char": 25112, "end_char": 25128, "source": "ner", "metadata": {"in_sentence": "The import licence was i1:sued on 12 Febmary, 1962 which is prior to the comi'ng into force of the provisions of the Ordinance and the Act."}}, {"text": "section 7", "label": "PROVISION", "start_char": 25864, "end_char": 25873, "source": "regex", "metadata": {"linked_statute_text": "These provisions in the Ordinance and the Act", "statute": "These provisions in the Ordinance and the Act"}}, {"text": "section 9", "label": "PROVISION", "start_char": 25894, "end_char": 25903, "source": "regex", "metadata": {"linked_statute_text": "These provisions in the Ordinance and the Act", "statute": "These provisions in the Ordinance and the Act"}}, {"text": "section 7", "label": "PROVISION", "start_char": 26556, "end_char": 26565, "source": "regex", "metadata": {"statute": null}}, {"text": "Govemment of India", "label": "ORG", "start_char": 27006, "end_char": 27024, "source": "ner", "metadata": {"in_sentence": "Third, in the year 1967 the Govemment of India laid down the conditions that imports made under licences issued through inadvertence or mistake in the past would not be considered for issuing the import quota l.!ertificate."}}, {"text": "section 7", "label": "PROVISION", "start_char": 27678, "end_char": 27687, "source": "regex", "metadata": {"statute": null}}, {"text": "28. May, 1962", "label": "DATE", "start_char": 28236, "end_char": 28249, "source": "ner", "metadata": {"in_sentence": "It is not correct to say that the Chief Civil Administrator revalidated the licence dated 12 February, 1962 on 28."}}, {"text": "4 March, 1962", "label": "DATE", "start_char": 28690, "end_char": 28703, "source": "ner", "metadata": {"in_sentence": "In any event, the protection, if any, of the validating section in the Ordinance would not extend beyond 4 March, 1962 because the acts validated u'nder section 7 of the Ordinance must have been done between 20 December, 1961 and 4 March, 1962."}}, {"text": "section 7", "label": "PROVISION", "start_char": 28738, "end_char": 28747, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 239 and 240", "label": "PROVISION", "start_char": 28934, "end_char": 28954, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 1", "label": "PROVISION", "start_char": 28983, "end_char": 28992, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Daman", "label": "PETITIONER", "start_char": 29101, "end_char": 29106, "source": "ner", "metadata": {"in_sentence": "Goa, Daman and Diu became a Union Territory on and from the date of their acquisition by the Government of India.", "canonical_name": "Daman"}}, {"text": "Article 239", "label": "PROVISION", "start_char": 29217, "end_char": 29228, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 240", "label": "PROVISION", "start_char": 29325, "end_char": 29336, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 246", "label": "PROVISION", "start_char": 29556, "end_char": 29567, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 73", "label": "PROVISION", "start_char": 29662, "end_char": 29672, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 240", "label": "PROVISION", "start_char": 30011, "end_char": 30022, "source": "regex", "metadata": {"linked_statute_text": "So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation", "statute": "So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation"}}, {"text": "Article 239", "label": "PROVISION", "start_char": 30269, "end_char": 30280, "source": "regex", "metadata": {"linked_statute_text": "So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation", "statute": "So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation"}}, {"text": "Article 73", "label": "PROVISION", "start_char": 30449, "end_char": 30459, "source": "regex", "metadata": {"linked_statute_text": "So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation", "statute": "So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation"}}, {"text": "Article 73", "label": "PROVISION", "start_char": 31620, "end_char": 31630, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "A ndhra Industrial Works", "label": "ORG", "start_char": 33105, "end_char": 33129, "source": "ner", "metadata": {"in_sentence": "A ndhra Industrial Works (supra) the proposition which was extracted from\n\nUjjmnhai's case (supra) is that an order of assessment made by an ."}}, {"text": "Ujjmnhai", "label": "OTHER_PERSON", "start_char": 33180, "end_char": 33188, "source": "ner", "metadata": {"in_sentence": "A ndhra Industrial Works (supra) the proposition which was extracted from\n\nUjjmnhai's case (supra) is that an order of assessment made by an ."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 33333, "end_char": 33343, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 19(1)", "label": "PROVISION", "start_char": 33360, "end_char": 33373, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 33724, "end_char": 33734, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Andhra Industrial Works", "label": "ORG", "start_char": 33991, "end_char": 34014, "source": "ner", "metadata": {"in_sentence": "In the case of Andhra Industrial Works (supra) an objectfon was raised on behalf of the resondents that the petition was not compe tent because there was no violation of fundame111tal rights."}}]}
{"document_id": "1975_3_878_884_EN", "year": 1975, "text": ":8'.18\n\nANIL KUMAR CHOWDHURY\n\nSTATE OF ASSAM & OTHERS\n\nMarch 7, 1975\n\n[A. N. RAY, C. J., K. K. MATHEW AND V. R. KRISHNA IYER, JJ.]\n\nl.A.S. (Appointment by promotion) Regulations, 1955-Rule 3(3) (b)--· Wiletiler holding posrs equivalent to cadre posr but not declared to be so sufficiq111 compliance with rule 3(3)(b)-Whe1her gap of one week breaks the continuity ill se.1vice.\n\n'The pctitione!' joined Assam Civil Se!'Vlcc Class J i11 1949 nnd wa~ confirmed as 11uch in 19'7. lll 1961 he was included in the Select List prepared unde:r the provisions of the J.A.S. (Appointment by Promotion) Regu, lations, !95S.\n\nHe was admittedly functioning in senior posts equivulcnt to cadre posts reserved ior I.A.S. personnel right from the year 1960 till he was inducted in I.A.S. cadre except for a week's gap in ! 966.\n\nThe petitioner claims to be placed i11 the I.A.S. Gradation List above Serial No. 34 and not at rial No. 65 011 the ground that the srvkes rendered by him between 1960-67 should be taken into consideration for determining his real length of service.\n\nRule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 reads .as under:\n\n\"Rule 3 (3 )--The year of allotment of an Officer appointed to the service after the commencement of these rules shall be :\n\n(b) Where the Office'r is appointed to the service by p:omotion in accordance with sub-rule ( 1) of Rule 8 of the Recruitment Rules, the yea.r\n\nof allotment of the junior-most among the officers recruited to the service in accordance with rule 7 of these rules, who officiated contimw11sly in a senior post from a date earlier than the date of commencement of such officiation by th(: former.\n\nProvided that th(: year of allotment of an officer appointed to the se, vice in accordance with sub-rule (1) of Rule 8 of the recruitment rules who sta:ie:l\n\noffic.iating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the service in accordance with rule 7 of these rules, 60 started officiating, shall be determined ad hoc bv the Centn.l Government in consultation with the State Government concerned.\n\nProvided further that an officer appointed to the service after the commencement of these rules i:n accordM'!ce with sub-rule (1) of rule 8 of the recruitment rules shall be deemed to have been officiating continuously i11 a senior post prior to date of inclusion of his name in the 'Select List' prepared in accordance with the requirenients of the Indian Administrative &rvice (Appointment by Promotion) Regulations framed under sub-rule (l) of rule 8 of the Recruitment Rules, if the pe,.iod of such officiation prior to that date is approved by the Centre[ Government in consultation with the Commission.\n\nExplanation [.-The officer shall be deemed to haie officiated continuousl:v in a senior post from a certa;.n date if during the period from that date to the date of his Confirmation in the Senior Grade he continues to hold without any\n\nbreak or reversion, a senior post otherwise than as a purely temporary or local arrangenzent.\"\n\nThe various posts held by the petitioner during the period 1960-67 were cadre posts rankwise. Those posts were not formally declared equivalent to cad'e posts as required by rule 3(3) (b). In effect some of the posts held by the petitioner du.ring the period in question were superior to the cadre posts. .\n\nHELD : Although the petitioner has occupied responsible positions vis-a-vis cadre post. the formal requirements of rule 3 (3) (b) are basic to his claim for pre-dating his entry int0 the I.A.S.\n\nSecondly, the rule requires as a condition\n\n]<'\n\nANIL KUMAR v. NSSAM (Krishna Iyer, J.) 879\n\nprecedent that offbation must be in a particular post declared as cadre post by the State Governmeat with the approval of the Central Government. The argument that the declaration of the State Government must be inferred from the counter affidavit filed in this Court was negatived on the ground that the Gover;1m.en:s speak and act formally and in solemn writing and not informally.\n\nEven 1f It is assumed that the State Government has made such a declaration in the C\"tH1ter affidavit no such declaration has been approved by the Central\n\nGov,_rnmem as required. [883 D-E, G-H; 884 DJ\n\nHE:L D FURTHER : The petitioner's officiation was not continuous since '.here w_n, gap of one week and that, therefore, the legal ingredient of 1:ontinulty\n\nm s-:r\\'Jr.c 1s not covered up. It was observed that this Court hopes that the Sta!e will have compassionate regard to the substantial fulfilment of the qualifi cu :ions for pre-datir, g petitioner's seniority in the J.A.S. when promotional prospects arise not because the petltioner has a right but because his past should not nltogether be lost. [884 DF]\n\nORIGINAL JURISDICTION': Writ Petition No. 379 of 1972.\n\nPetition. Under Article 32 of the Constitution.\n\nSachin Choudhury, U. P. Singh, Sukumar Mitter and S. N. Chaudhry, for the Petitioner.\n\nS. K. Nandy, for respondent No. 1.\n\nL. N. Sinha, Solicitor General of India, P. P. Rao and Girish Chandra, for respondent No. 2.\n\nD. N. Mukherjee and G. S. Chatterjee, for respondent Nos. 3, 4, 8, 9, 11, 12, 15, 19, 22, 26, 31 & 32.\n\nThe Judgment of the Court was delivered by-\n\nKRISHN A IYER, J.-A senior civil servant of the Indian Administra. tive Service, brought In by promotion and borne on the cadre of the Assam St'ate (now of the joint cadre of Assam & Meghalaya), seeks, in this petition under Art. 32, redres cf alleged infraction of his fundamental right to equality under Art. 16, vis a vis certain direct r&ruits.\n\nWe will proceed to sea' the ca•e to see if, on the merits, this public servant has suffered a birr illeP,~1 blow by disminishing his length of service, that bdng the core of the controversy. For this reason, we are not disposed to rebuff the petitioner in limine on the preliminary objection urged by the learned Solicitor General To bar the processual doors of iustice like harsh judicial janitors-if one has a right to relief-is the reluctant refuge of a Court-and that at the instance of the State, at the final stage.\n\nStripped of details and in simplr, terms, the gravamen of the peti.: tioner's grievance is that while he is eligible to be placed above serial number 34 in the I.A.S. Gradation List (Ann{(ure F), he , has been illegally pitch-forked into serial number 65. His real length of service has been lopped off by denial of a considerable period ·pent in posts equivalent in status & responsibility to I.A.S. cadre posts and in violation of Rule 3(3) of the l.A.S. (Regulation of Seniority) Rules, 1954.\n\nWe will amplify this case and examine the alleged infraction of his right.\n\nThe story of the Indian Administrative Service, its genesis, the sources of recruitment and kindred matters have been delienated in some detail in a case where rule 3 ( 3) (b) aforesaid fell for consideration. That is R. P. Khanna v. S. A. F. Abbas('). We need not go ov1erJ the ground once again since the necessary rules and reguiatio:ns have been fully set out in that judgment so that we will conhue our selves to the specific provision that needs a close look.\n\nThe 1954 Cadre Rules defiiaed 'cadre post' to mean any of the po.sts. spccificd in item 1. of the Schedule to the. In. dian Adm.. inistrative Service (Fixation of Cadre Strength) Regulations.\n\nAnother ter:lll which crops up in the various rules is 'senior post' which means, ac,:ording to the Regulation of Seniority RuleR, 1954, a post includr.(l. and specified under item 1 of the Cadre of each State in the Schedule to the Fixation of Cadre Strength Regulations, 1955. The question of seniority as b1tween promotees and direct recruits is covered by . r. 3(3) (b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954. The crucial rule that is decisive may be extract€~ to facilitate further discussion :\n\n\"Rule 3(3)-The year of allotment of an Officer appointed to the service after the commencement of these rules shall be : * *\n\n(b) Where the officer is appointed to the service by promotion iln accordance with sub-rule ( 1) of Rule 8 of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the service in acoord ance with rule 7 of these rules, who officiated continuously in a Senior Post from a date earlier than the date of commencement of such officiation by the former.\n\nProvided that the year of allotment of an officer appointed to the service in accordance with sub-rule ( 1) of Rule 8 of the recruitment rules who started officiating continuously in a senior post from a date earlier than the date on which any of the Officers recruited to the service in accordance with rule 7 of these rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned.\n\nProvided further that an officer appointed to the service after the commencement of these rules in accordance with sub-rule ( 1) of rule 8 of the recruitment rules shall be deemed to have been officiating continuously in a senior post prior to the date of inclusion of his name in the 'Select List' prepared in accordance with the requirements of the Indian Administrative Service (Appointmcr.t by Promotion) rcgu lations framed under sub-rule (i) of rule 8 of the recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission. ---------\n\n(!) [1972] 3 S.C.R. 548.\n\nANIL KUMAR \\', ,\\ '1.\\\\l (Krp}llfa Iyer, ]. ) 88 1\n\nExplanation J.--The officer sh.all be deemed to have 1)/jiciated continuously in a Senior Post from a cerrain date if during the perwd from that date to the date of his confirmation in the Senior Grade he continues to hotd without\n\nany break or reversion, a Senior post otherwise than as a purely temporary or local arra11geme111.\"\n\n(emphasis, Ol!fS) The four-fold components of the 'year of allotment formula' emer ging from the cumbrous rule are (a) the year of allotment of the juniormost amoag the officers recruited to the service by the direct method; (b) the year from when the claimant officer 'officiated con tinuously in a senior post from a date earlier than the date of commencement of like officiation by the juniormost direct recruit of the year; ( c) the promoteo shall be deemed to have been officiating continuously in a senior post even prior to his inclusion in the select list 'if the period of such officiation is approved by the Central Government in consultation with the (Union Public Service) Commission'; and\n\n(d) the deemed continuous officiation in a senior post shall have its genesis on that date from which 'he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement'.\n\nThe applicant has thus four hurdles to surmount before he can link his prior officiating service and ante-date his baptism into the IAS category.\n\nBack to the facts.\n\nThe petitioner came into the Assam Ovil Service, Class I, in 1949, was confirmed as such in 1957 and since th.an spiralled his way up to fill a set of responsible positions. By the end of 1961 he was included in the Select List prepared under the provisions of the I.A.S. (Appointment by Promotion) Regulation, 1955.\n\nAlthough this officer was admittedly functioning in senioc positions equivalent to cadre posts reserved for IAS personnel, his actual induction into this coveted Indian Administrative Service took place only on February 1, 1967 and his confirmation therein, in the Senior Scale, only a year later. The dispute centres round the claim of the petitioner to credit for alleged continuous officiation in his offices, equivalent to cadre posts, while fixing his date of birth into this privileged All India Service.\n\nHis official horoscope and even post-rc'irement prospects will very much depend on the year of entry into this close IAS preserve.\n\nThe impressive set of posts occupied by the petitioner do credit to his claim, They begin with June 2, 1960 and run on without a break upto when he was regularly promoted into the . IAS except for a week's gap early in March 1966.\n\nThe contra-temps is that while rank-wise these offices are cadre posts whein the petitioner filled them, no declaration as demanded by the relevant rule 3(3)(b) had been made. This legal omission is being pressed into service y the Solicitor General to deny what i, n morality belongs to the petitioner.\n\nThe bone of contention is that these posts were not . formally declared equivalent to 'cadre posts'. with the Union Government's approval and service therein was insufficient to back the right set up.\n\n[9.--564SCI/75\n\nMoreover, there was an interregnum of a week when, on his own showing, he was not officiating in a cadre post. A miss is as good as a mile and continuity means con:iriuity.\n\nThe short hiatus destroy:> the credential for seniority accmnulated by long officiation.\n\nWe will deal with these submissions in opposition in the background of the~ relevant law.\n\nThe capacities in which the petitioner served Government sin~~ 1960 are catalogud by him and asserted to be 'factually equivalent to the post of Additional District Magistrate and in fact superior to that post'. The Additional District Magistrate's post is a cadre post reserved for IAS personnel.\n\nThe short issue here is whether legally these various posts were declared cadre posts. They were not.\n\nWe have no doubt that the petitioner has o<'.cupied responsibfo positions vis-a-vis cadre posts. Even so, the formal requirements of the rule just quote:d are basic to his claim for adding special antece- dent merit to pre-date his entry into the IAS. We may safely proceed on the facts affirmed in the counter-affidavit of the Union of India since no exception can ordinarily be, or has been, taken to that course.\n\nParagraph 3 .1 of that affidavit states :\n\n\"On a careful scrutiny of the relevant records, however, it is seen that the petitioner, Shri Anil Kumar Choudhary, was actually officiating in the non-cadre post of Additional Deputy Commissioner, United Mikar and North Cachar Hills and held the current charge of the post of Deputy Commissioner, Unite:d Mikar and North Cachar Hills. When the proposal for the appointment of Shri Ani.l Kumar Chou- . Jhary and the determination of his seniority was sent for the first time by the Government of Assam, under their No.\n\nAAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the non-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966. A copy of the proposal sent by them is given as Annexure S-II to this Supplementary Counter Affidavit.\n\nSubsequently, the Government of Assam issued orders on 19th August 1966 appointing Shri Anil Kumar Choudhary retrospectively appointing the petitioner to officiate as Deputy Commissioner, United Mikar and North Cachar Hills, with effect from the 10th December, 1964 to the 2nd March, 1966.\n\nA copy of the said order of the Government of Assam is exhibited as Annexure S-11 to this Supplementary Counter Affidavit.\"\n\nThe plain consequence of this denial is disastrous because the posts. he had occupied in the intervening years anterior to his appointment. as JAS officer are non-cadre posts and cannot, therefore, possess the. sanctity which officiation in cadre-posts may have.\n\nSecondly, the rule requires. as a condition precedent. officiation in a particular post\n\nANIL KlJMAR v. ASSAM (Krishna Iyer, J.) . . 583.\n\ndeclared as cadre post by the State Government plus approval thereof, by the Central Government. The affidavit on behlf of the Central . Government has categorically stated ths :\n\n. \"From the 9th March, 1966, till the date c.f his appointment to the Gervicc .hat is 1st Feb. 1967, he held non-cadre post of Chairman, Gauhati Development Authority and Liaison Offi:er, Industries. His officiation in the cadre post was not approved and his officiation in the ex cadre post was not counted for the purposes of his seniority because the ex cadre post of Chairman, Gauhati Development Authority and Liaison Officer, Industries was not declared equivalent to a Cadre post by.the State Government. Hence, the date of his appointment to the Service was the relevant date for the fixation of his seniority.\" · (emphasis, ours)\n\nWe have already pointed out-with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex-post facto and there is authority of this Court for n that proposition vide R. P. Khanna's Case, (supra). However, Shri Sachin Choudhary is not able to pµt his finger on any specific declaration of equivalence 'made by the State Government except. to state that in the counter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those · higher in rank claimed to have been occupied by the petitioner to be factually correct.\n\nSuper-added is the State's averment which goes in E substantiation of the petitioner's contention and may well be extracted : ,. ·, \" ·· , , . \"The posts mentiQned in sub:paras (i). to (v) are equivalent to cadre ; posts ·· of Additional District Magistrate . Deputy Secretary or Settlement Officer. The post mentioned in sub-para (vi) is a cadre.oost and the posts mentioned in . r: rnb-para (vii) were regarded in rank, statu., and resi>onsibi lity as above the cadre posts of Additiooal District Magistrate\n\nand Deputy Secretary. These posts are equivalent to the cadre post of Deputv Commissioners or Heads of Departments post like Commissioner of Taxes and Registrar of Cooperative Societies of the I.A.S. Cadre.\"\n\nCould there be a declaration without a formal notification to that effect? We think not.\n\nGovernments speak and act formally and in solemn writing, not informally. In the present case no formal declaration is found but the State Gover:iment is prepared to go to the extent of helpin~. the petitio'ler woth the Statement :-\n\n\"Formal declarations under Rule 9 of the J.A.S. (Pay) Rules, 1954. are not necessary when non cadre officers hold such rx cadre cu!v:tent posts.\"\n\n Shri Sa chin Chouclhory mes this :werme01t to rontend that the State Government'< affidavit may be treated as a formal declaration of\n\nc-, quivalence but the difficulty is that there has been an amendment of the Rules in April 1967 whereby the power of the State Government to make retroactive declarations is deleted. Moreover, as the Solicitor General points out such declaratiom as is found to have been made\n\nhy the State has reference to the Pay Rules and not the Seniority Rules which bear upon the present dispute.\n\nAnother impediment confronting the ur.fortunatc petiticmer is that the proviso to Rule 3(3)(b) requires not merely the State Government's declaration regarding the p:>sts being equal to cadre post but such officiation must be with the appro; ral of the Central Government: none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General not content with these vitai flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were pure-- ly temporary and this is testified by the record. And so such shortterm ad hoc officiation is insufficient. . Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March, 9, 1966. Contilnuity once disrupted, the claim breaks down.\n\nService for long years comes to nought me1-ely because of a we,::-k's discontinuity. In law a short gap may prove a costly failure.\n\nThe plea that this little interval was bridged by the joining time taken by the official may be good as an explanation for not taking charge immediately, but cannot cover up the legal ingredient of continuity in iervice.\n\nTrue, on account of certain formal non-conformance with the strictness of the rules, the petitioner loses the battle, but we hope the State will fyave compassionate regard to the substantial fulfilment of the qualifications for pre-dating his seniority in the IAS the r111les predicate.\n\nThe long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when promotional prospects arise, is not because the petitioner has a r.fght\n\nhut becaust! his past should not altogether x lost.\n\nThe writ petition is dismissed.\n\nParties wil1 pay and bc•ar their own costs.\n\nP.H.P.\n\nPetition dismissed'.", "total_entities": 40, "entities": [{"text": "18\n\nANIL KUMAR CHOWDHURY", "label": "PETITIONER", "start_char": 4, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "ANIL KUMAR CHOWDHURY", "offset_not_found": false}}, {"text": "STATE OF ASSAM & OTHERS", "label": "RESPONDENT", "start_char": 30, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "STATE OF ASSAM & OTHERS", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 71, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 89, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 106, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 3666, "end_char": 3678, "source": "ner", "metadata": {"in_sentence": "the formal requirements of rule 3 (3) (b) are basic to his claim for pre-dating his entry int0 the I.A.S.\n\nSecondly, the rule requires as a condition\n\n]<'\n\nANIL KUMAR v. NSSAM (Krishna Iyer, J.) 879\n\nprecedent that offbation must be in a particular post declared as cadre post by the State Governmeat with the approval of the Central Government.", "canonical_name": "KRISHN A IYER"}}, {"text": "Central Government", "label": "ORG", "start_char": 3815, "end_char": 3833, "source": "ner", "metadata": {"in_sentence": "the formal requirements of rule 3 (3) (b) are basic to his claim for pre-dating his entry int0 the I.A.S.\n\nSecondly, the rule requires as a condition\n\n]<'\n\nANIL KUMAR v. NSSAM (Krishna Iyer, J.) 879\n\nprecedent that offbation must be in a particular post declared as cadre post by the State Governmeat with the approval of the Central Government."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 4864, "end_char": 4874, "source": "regex", "metadata": {"statute": null}}, {"text": "Sachin Choudhury", "label": "OTHER_PERSON", "start_char": 4897, "end_char": 4913, "source": "ner", "metadata": {"in_sentence": "Sachin Choudhury, U. P. Singh, Sukumar Mitter and S. N. Chaudhry, for the Petitioner.", "canonical_name": "Sachin Choudhury"}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 4915, "end_char": 4926, "source": "ner", "metadata": {"in_sentence": "Sachin Choudhury, U. P. Singh, Sukumar Mitter and S. N. Chaudhry, for the Petitioner."}}, {"text": "Sukumar Mitter", "label": "OTHER_PERSON", "start_char": 4928, "end_char": 4942, "source": "ner", "metadata": {"in_sentence": "Sachin Choudhury, U. P. Singh, Sukumar Mitter and S. N. Chaudhry, for the Petitioner."}}, {"text": "S. N. Chaudhry", "label": "LAWYER", "start_char": 4947, "end_char": 4961, "source": "ner", "metadata": {"in_sentence": "Sachin Choudhury, U. P. Singh, Sukumar Mitter and S. N. Chaudhry, for the Petitioner."}}, {"text": "S. K. Nandy", "label": "LAWYER", "start_char": 4984, "end_char": 4995, "source": "ner", "metadata": {"in_sentence": "S. K. Nandy, for respondent No."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 5020, "end_char": 5031, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General of India, P. P. Rao and Girish Chandra, for respondent No."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 5061, "end_char": 5070, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General of India, P. P. Rao and Girish Chandra, for respondent No."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 5075, "end_char": 5089, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General of India, P. P. Rao and Girish Chandra, for respondent No."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 5114, "end_char": 5129, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee and G. S. Chatterjee, for respondent Nos."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 5134, "end_char": 5150, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee and G. S. Chatterjee, for respondent Nos."}}, {"text": "KRISHN A IYER", "label": "JUDGE", "start_char": 5263, "end_char": 5276, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by-\n\nKRISHN A IYER, J.-A senior civil servant of the Indian Administra.", "canonical_name": "KRISHN A IYER"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 5488, "end_char": 5495, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 5569, "end_char": 5576, "source": "regex", "metadata": {"statute": null}}, {"text": "Regulation of Seniority RuleR, 1954", "label": "STATUTE", "start_char": 7469, "end_char": 7504, "source": "regex", "metadata": {}}, {"text": "Cadre of each State in the Schedule to the Fixation of Cadre Strength Regulations, 1955", "label": "STATUTE", "start_char": 7559, "end_char": 7646, "source": "regex", "metadata": {}}, {"text": "[1972] 3 S.C.R. 548", "label": "CASE_CITATION", "start_char": 9508, "end_char": 9527, "source": "regex", "metadata": {}}, {"text": "ANIL KUMAR", "label": "PETITIONER", "start_char": 9530, "end_char": 9540, "source": "ner", "metadata": {"in_sentence": "ANIL KUMAR \\', ,\\ '1.\\\\l (Krp}llfa Iyer, ]. )", "canonical_name": "Ani.l Kumar Chou- . Jhary"}}, {"text": "Union Public Service) Commission", "label": "ORG", "start_char": 10578, "end_char": 10610, "source": "ner", "metadata": {"in_sentence": "(emphasis, Ol!fS) The four-fold components of the 'year of allotment formula' emer ging from the cumbrous rule are (a) the year of allotment of the juniormost amoag the officers recruited to the service by the direct method; (b) the year from when the claimant officer 'officiated con tinuously in a senior post from a date earlier than the date of commencement of like officiation by the juniormost direct recruit of the year; ( c) the promoteo shall be deemed to have been officiating continuously in a senior post even prior to his inclusion in the select list 'if the period of such officiation is approved by the Central Government in consultation with the (Union Public Service) Commission'; and\n\n(d) the deemed continuous officiation in a senior post shall have its genesis on that date from which 'he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement'."}}, {"text": "February 1, 1967", "label": "DATE", "start_char": 11544, "end_char": 11560, "source": "ner", "metadata": {"in_sentence": "Although this officer was admittedly functioning in senioc positions equivalent to cadre posts reserved for IAS personnel, his actual induction into this coveted Indian Administrative Service took place only on February 1, 1967 and his confirmation therein, in the Senior Scale, only a year later."}}, {"text": "June 2, 1960", "label": "DATE", "start_char": 12072, "end_char": 12084, "source": "ner", "metadata": {"in_sentence": "The impressive set of posts occupied by the petitioner do credit to his claim, They begin with June 2, 1960 and run on without a break upto when he was regularly promoted into the ."}}, {"text": "Union of India", "label": "ORG", "start_char": 13817, "end_char": 13831, "source": "ner", "metadata": {"in_sentence": "We may safely proceed on the facts affirmed in the counter-affidavit of the Union of India since no exception can ordinarily be, or has been, taken to that course."}}, {"text": "Anil Kumar Choudhary", "label": "PETITIONER", "start_char": 14043, "end_char": 14063, "source": "ner", "metadata": {"in_sentence": "Paragraph 3 .1 of that affidavit states :\n\n\"On a careful scrutiny of the relevant records, however, it is seen that the petitioner, Shri Anil Kumar Choudhary, was actually officiating in the non-cadre post of Additional Deputy Commissioner, United Mikar and North Cachar Hills and held the current charge of the post of Deputy Commissioner, Unite:d Mikar and North Cachar Hills.", "canonical_name": "Ani.l Kumar Chou- . Jhary"}}, {"text": "Ani.l Kumar Chou- . Jhary", "label": "PETITIONER", "start_char": 14331, "end_char": 14356, "source": "ner", "metadata": {"in_sentence": "When the proposal for the appointment of Shri Ani.l Kumar Chou- .", "canonical_name": "Ani.l Kumar Chou- . Jhary"}}, {"text": "Government of Assam", "label": "ORG", "start_char": 14431, "end_char": 14450, "source": "ner", "metadata": {"in_sentence": "Jhary and the determination of his seniority was sent for the first time by the Government of Assam, under their No."}}, {"text": "Anil Kumar Choudhary", "label": "PETITIONER", "start_char": 14549, "end_char": 14569, "source": "ner", "metadata": {"in_sentence": "AAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the non-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966.", "canonical_name": "Ani.l Kumar Chou- . Jhary"}}, {"text": "9-12-1964", "label": "DATE", "start_char": 14689, "end_char": 14698, "source": "ner", "metadata": {"in_sentence": "AAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the non-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966."}}, {"text": "3-3-1966", "label": "DATE", "start_char": 14702, "end_char": 14710, "source": "ner", "metadata": {"in_sentence": "AAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the non-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966."}}, {"text": "R. P. Khanna", "label": "OTHER_PERSON", "start_char": 16753, "end_char": 16765, "source": "ner", "metadata": {"in_sentence": "Counsel for the petitioner rightly argues that such declaration can be made ex-post facto and there is authority of this Court for n that proposition vide R. P. Khanna's Case, (supra)."}}, {"text": "Sachin Choudhary", "label": "OTHER_PERSON", "start_char": 16797, "end_char": 16813, "source": "ner", "metadata": {"in_sentence": "However, Shri Sachin Choudhary is not able to pµt his finger on any specific declaration of equivalence 'made by the State Government except.", "canonical_name": "Sachin Choudhury"}}, {"text": "Sa chin Chouclhory", "label": "OTHER_PERSON", "start_char": 18360, "end_char": 18378, "source": "ner", "metadata": {"in_sentence": "Shri Sa chin Chouclhory mes this :werme01t to rontend that the State Government'< affidavit may be treated as a formal declaration of\n\nc-, quivalence but the difficulty is that there has been an amendment of the Rules in April 1967 whereby the power of the State Government to make retroactive declarations is deleted."}}, {"text": "March 3, 1966", "label": "DATE", "start_char": 19616, "end_char": 19629, "source": "ner", "metadata": {"in_sentence": "Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March, 9, 1966."}}, {"text": "March, 9, 1966", "label": "DATE", "start_char": 19634, "end_char": 19648, "source": "ner", "metadata": {"in_sentence": "Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March, 9, 1966."}}]}
{"document_id": "1975_3_885_908_EN", "year": 1975, "text": "GODAVARI SUGAR MILLS LTD. AND ORS.\n\nS. B. KAMBLE AND ORS.\n\nMarch 7. 1975 [H. R. KHAN.'iA, P. N. B1IAGWAJ'J AND P. K. GOSW,\\J\\IJ, JJ.]\n\nMllharashtra Agricultural Land,- (Ceilings aiul Holdi11gs) Act, (27 of 1961) as amrnded by Acts of 1968, 1969 and 19i0-Prbicipa/ Act i11ci11ded in rhe Nin//; .\\rhedu/e-Amending Acts if prolected by Art. 31A or 31B.\n\nThe l\\faharashtra Agricultural Lands (Ceilings on Holdings) Act .1961 t:ame into force on fanuary 26. 1962.\n\nThe constitutional validity of ihe At wa.~ challcngcJ in the High Court and 1he High Court held that the provisions of the\n\nAt. other than s. 28, were a measure of agrarian reform and were protected by Art. 3 lA of the Con•titution .. St; ction 28, however, was held to be violative of .Art. 14.\n\nIn_ 1964, the Constltu.!Ion \\17th Amendme'!t) Act wu passed, as a rewlt of which the 1961 Act, mcludmg s. 28. was included in the Ninth Schedule. The 1961 Act was amended by various Maharashtra Acts namely\n\nAc! .16 of i968, 33 of 1968, 37 of 1969 and 27 of 1970. The cont:.tutional validity of the 1961-At as amended by the vari_o1!S Maharashtra Acts; was again challenged but the High Court upheld the validity of the Act u mnended on the ground that it was protected by Arts. 31A and 31B of the Constitulfon. 0 Dismissing the appeal to this Court,\n\nliELD: Though the various amendments to the Act of 1961 were not protected by Art. 3 IB, they are, however. protected by Art. 3 IA of the Constitution. [898 C-D; 907 A-Bl ·\n\n1 (a) The object of Art. 31B is to give a blanket protection to the Acts and Regulations specified in Ninth Schedule and the provisions of those Acts and Regulations, against any challenge to them on the ground that they are inconistent with, or take away, or abridge, any of the fundamental rights in Part m.\n\nThis immunity would be available notwithstanding any judgment, decree Or order\n\nof any court or tribunal to the contrary! [S96 H-897 Bl\n\n(Ii) The specification of an Act or. Regulation in the schedule would not prevent the competent legislature from repealing or amending it.\n\nThe inclusion of the Act or Regulation in the Ninth Schedule would protect not only the principal Act or Regulation which is included in the Mnth Schedule but also the amendments whi:h have been made therein till the date of she,/1 inclusio11 even though the constitutional amendment by which it is included in the Ninth Schedule refers only to the Principal Act or Regulation and not to the amendments made till then. [897 C-D]\n\n(c) But the inclusion in the Ninth Schedule would not extend the protection lo any amendmen'.s made in the Act or Regulation after the date of its inclusion in the Ninth Schedule. The inclusion of the A:t or Regulation in the Ninth Schedule is brought about mtly by means of an amendment of the Constitution by the prescribed majority in each house of Parliament under Art. 368. It is for the prescribed majority in each house, to decide whether a particular Act or Regulation should be inserted in the Ninth Schedule. In cate the PTO!ection afforded by the Article is ex'.ended to amendmen11 made In tbe /i;; t or Regulation subsequent tci its incusion in the Shedule., the ~It would be •. f!iat C\\'C!l those proviswns would en1oy the protection which were never scrutinised and could • not, in !he very nature of things. have been scrut; inised by the presen'bed majority vested with the power of amending the Constitution. It would be tantamount to giving a power to State Legislatures to amend tlte Constitution in such a way as wolllcjl enlarge the contents of Ninth Schedule. {897 'D-H]\n\n(d) The protection of Art: 31B.cannot also be .invoked .for a new provision inserted by amendmcn.t after mlu~1on of the 'Act m '.h.e Nmth Scedule on !he ground that it is ancillary or mc1dental to tie rrov1S1ons to which protectmn\n\nhas already been afforded by such inclmion. Any provision which has the effect of making an inroad into the guarantee of fundamental rights s(10uld be construed very strictly and it would not be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beyond what is warranted by the language of the provision. The entitlement to protection being confined only to the Acts, Regulations and provisions which are expressly mentioned in that Schedule, it cannot be extended to provisions which were not included therein.\n\nThis Jhinciple would hold good irrespective of the fact whether the provision. to which entitlement to protection is sought to be extended, deals with new substantive matters or whether it dals with llllatterR\n\nwhich are incidental or ancillary to those already protected. [897 H-898 DJ\n\nSri Ram Ram Narain Mcdhi v. State of Bombay [1959] Supp. 1 S.C.R. 489, Saiian Singh v. State of Raiafthan; (1965] 1 S.C.R. 933; State of Orissa v.\n\nCha11dra Sekhar Singh Bhoi etc. [1970) I S.C.R. 593 anti State of Maharashtra etc. v. Madhavrao Damodar Pati/chand & Ors., [1968) 3 S.C.R. 712, followed.\n\n(e) The case of Raman/al Guiab Chand Shah v. State of Guja.-at [1969] 1 SCR 42 does not lay down, as had been assumed by the High Court. that if an amending Act does not cover a new field but contains only provisions which arc incidental and anci!Jary to those which are protected by Art. 3 IB, the Amend. ing Act would also get the protection of that Article. [900 C-D] 2 (a) The pr; nciples applicable in order to find out whether an impugned enactment for acquisition of land is protected by Art. 3 IA are :\n\n(i) Acquisition of land by the State should be for the purpose of agrarian D refom1. The scope of a1; rarian reform is wider than that of land reform.\n\n(ii) Acquisition of land by taking it from a senior member of the family and giving it to a junior member is not a measure of agrarian reform.\n\n(iii) Acquisition of land for urban slum clearance or for a housing scheme in the neighbourhood of a big city is not a measure of agrarian reform.\n\n(iv) Acquisition of land by the State without specifying the purpose for which land is to be used is not a measure of agrarian reform. ( v) But scbenie; of rural development envisaging not only equitable distri bution of land b•1t also raising of economic standards and the bettering of rural health and soial conditions in the villages, by making provision tor the assignment of land to a Panchayat for the use of the general community or for hospitals, s1:hools, manure pits, tanning grounds etc. which ensure for the benefit of the rural population, constitu.te a measure of agrarian reform.\n\n(vi) Provision for reservation of land for promotion of agriculture it:ad for the welfare of agricultural population constitutes a measure of agrarian reform.\n\n(vii) If the dominant and general purpose of the scheme is agrarian nform, the scheme may provide for ancillary prov:isions to give full effect to the scheme.\n\n(viii) A provision fixing ceiling area and providing for the disposal ·f the surplus land in accordane with rules to implement a programme of agrarian reform is a measure of agrarian reform. [905 A-OJ\n\nKavalappara Kottarathl Kochuni & Ors. v. The State of MadrM & A111-. (1960] 3 SCR 887; P. Vajravelu Muda/iar v.\n\nSpecial Collector [1965) 1 SCR 614; Ranjit Singh & Ors. v. State of Puniab & Ors.\n\n[1965] 1 SCR 82; Ba/madies Plantations Ltd. v. State of Tamil Nadu [1973) 1 SCR 258: Kanan Devan Hills Produce Co. Ltd. v. The State of Krrala & Anr. (1973] 1 SCR 356 and State of Kerala &: Anr. v. Gwalior Rayo11 Silk Mfg. (Wvg.) Co. Ltd. etc.\n\n[1973] 2 OCC 713, and Fida Ali v. Stare of Jammu and Kashmir, [19141 2 SCC 253 referred In.\n\n(b) In !he ]:f!\"escnt case a conspectU3 of the different provisions of the '.mpugned Act goes to show that the main purpose of the Act was to prevent concentration of agricultural land in the hands of a few.\n\nSection 3 ol' the impugned Act imposes a ceiling on holding of agricultu.ral land.\n\nS. 4 provides that no person shall hold land in excess of ceiling.\n\nUnder s. 14 inquiry is to\n\nGODAVARI SUGAR MILLS v. s. B. KAMBLE (Khanna, J.) 88 7\n\ne made for determining such excess. On completion of inquiry a declaration is made under s. 21 giving particulars of the area which is delimited as surplus land.\n\nPossession of such surplus land is then taken by the Colle; tor on behalf o! the s.tate Government free of all encumbrances.\n\nSection 27 provides for the distnbut10n of surplus land, and s. 28 makes a special provision in respect of lands taken over from industrial undertakings to ensure efficiem cultivation and\n\nontinued supply of raw-material for those undertakings.\n\nFor such a purpose, if the State Government considers it necessary to ma:.ntain the integrity of the land acquired from the industrial undertaking in one or more compact blocks, it might, subject to terms and conditions, grant the land or any pan thereof to a joint farming society or a member thereof consisting, as far as possible of the persons specified in that section. (905 G-906 CJ '\n\n(c) From the preamble to the Amending Act 27 of 1970 and the counter affidavit filed on behalf of the State Government it appears that effo11s to set up a joint farming society as contemplated by s. 28 of the Act did not bear fruit in spi~ of the fact that the tim~ for >etling up of those societies was extended.\n\nThe State Government also found that sh@rt extensions of time was hampering the full and efficient use of tre land for agriculture and the Maharashtra State Farming Corporation, which hact been cultivating that land for the interim period, could not undertake any plans or schemes for the improvement of the land because of the short extensions. The State Government, therefore, decided that the cultivation of the land might be continued wi.h the Maharashtra Stat~ Farming Corporation on a permanent basis. In arriving at this decision the State Government was also influenced by the consideration that the implementa-' tion of the joint farming spcieties &:heme would lead to fragmentation of thP. land and hamper its economic development and for implementing this purpose. \". 28-IAA was inserted in the Act anC: the other amendments of the principal Act were made, by Act 27 of 1970. [906 C-F]\n\n(d) It could not be contended that only distribution of acquired land among landless persons dr poor peasants would constitute agrarian reform, and that, when lands of industrial undertakings are not so distributed but had to he cultivated by the State Farming Corporation, the acquisition cannot be considered to be a measure of agrarian reform.\n\nThe acquisition of land held by industrial undertakings is not to be taken in isolation but as part of the general scheme and object of the Act that there should be a ceiling on private holdin!li.\n\nS. 28-lAA has to be taken in its context and tiog with the other provision.~ of the Act.\n\nOrdinarily distribution of acquired surplus land of individuals among landless persons and poor peasants is part of the scheme of agrarian reform. The legislature here has made special provision in respect of land held by an industrial undertaking, in order to prevent the fragmentation of a large tra.ct of land and to subserve the purpose of supplying raw-material to the undertaking and provided that it should be cultivated by a State OWJ.led farmmg corporation. Acquisition simpliciter of land by the State to augment its re<; ourceil and without specifying the purpose for which it is to be used after acquisition would not get the protection of An. 3 IA. To decide the question of protection. the general scheme of the statute containing the provision for the acqui, ition, the object of the acquisition, and the reasons which weighed for retaining tho land with the State or its corporation without distributing it among the landlei; s persoEs and poor peasants, must be considered. The. concept of agrarian reform is not static and with the change of times, u.nder the impact of fresh ideas and in the context of fresh situations, the concept of agrarian reform is bound to acquire new dimensions. A measure which has. the effect of improving the rural economy or promoting rural welfare would be a part of agrarian reform.\n\nThe fa:t that part of the acquired land would remain vested in the State Government or a State owned farming corporation would not therefore militate against the object of agrarian reform, if the continued vesting of the land in the Gove,.ment or the corporation is a part of the general scheme of agrarian reform and there is no oblique deviation from the avowed purpose, especially when it is in the interest of rural economy that the compact area instead of being fraogmcnted by distribution. be preserved as one compact block cultivated by the State owned farm'..ng corporation. [907 E-908 CJ\n\nRa11jit Singh v. State of Punjab [1965] 1 S.C.R. 82. followed.\n\nSUPREME ~T llRPORTS. £19751 3 S.C:.ll.\n\nC1v1L APPELLATE JuR1so1cnoN : Civil Appeal No. 1426 of 1974.\n\nFrom the judgment and order dated the 315/8-4-74 of the Bomb11y High Court in S.C.A. 1271 /tj8.\n\nA. 1 K. Se11 M. C. Bhandare, D. M. Popat, S. I.\n\nThakore, P H. f'arek and Sunanda Blumdare, for the appellant.\n\nn De, Attorney General of India and M. N. Shroff, for the ents l-4.\n\nI. . Shroff, and J. C. Bhatt, for respondent No. 5.\n\nThe Judgment of the Court was delivered by :\n\nKHA NA, J.\n\nThe short question which arisl:S in this appeal filed on cert cate by Godavari Sugar Mills Ltd. ad its two. sharehold~ directors against the judgment of the Bombay High Court is the constitutional alidity of Maharashtra Agricultural Lands (Ceiling on H@ldings) Act, 1961 (Maharashtra Act No. 27 of 1961) (hereinafter referred t.o as the principal Act) as amended by Maharashtra Acts Nos. 16 pf 1968, 33 of 1968, 37 of 1969 and 27 of 1970. The High Court ha$ upheld the validity of the Act on te und that it is Jro\n\nected by article~ 31A and 31B of the Coristitut1on.\n\nThe priricipal Ac~ came into force. on January 7:6 1962: ccord ing to its long title, 1t was an act to impose a maximum llnut (or c:eiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held illl excess of such ceiling; and for matters connected with the purposes aforesaid. Section 3 of the Act deals with ceiling on holding of agricultural land. According to that section, in order to provide for the more equitable dis•ribution of agricultural land amongst the peasantry of the State of Maharashtra (and in particular, to provide that landless persons are given land for personal cultivation), on the commencement of the Act, there shall be imposed to the extent, and in the manner hereinafter provided, a maximuin limit (or ceiling) on the holding of agricultural land throughout the State. Section 4 pr~ vid_es that. no perso~ shall hold land in excess of the ceilinq area, while section 5 specifies as to what area would constitute ceiling area under each class of land in specified local area. Returns have--to be submitted to .the Collector in respect of surplus land under section\n\n12 of the Act. Section 14 gives power to the Collector to hold an enquiry for de•ermining as to what area in resoect of the holdirtJ( of a person should be declared to be in excess of the ceiling area.·· On completion of tlte enquiry if the Collector finds tlie holding of a per-son in excess of thi! ceiling area the Collector shall make a declaration under section 21 of tlie Act about the area, descrin'inn and full particulars of the land wliieh is delimitPd ns_sumlus t:ind. The dechral'ion\n\n~~ ttien notified. under section 2 t (2) in the oinc; al Gaz .. tte. Accnrdme to b-sectton ( 4.) of. •hat section. the Collector. sliall after the pahlieatiOn of the nntt?cation under sub-se<:tion.(2) tl<e in the ore~ cin\"bed manner possession of the land which is deliinited as surplus\n\nGODAV, ARJ SUGAR MILLS \\', s. B. KAMBLE (Khanna, !.) Is 8 9\n\nland. lt is further provided that the surplus land shall with eff~ from the date on wiuch tne possession thereof is taken a:. aforesai.d be, ( deemed to be acqwred by the State Government for the purp<>ses of' the Act and shall accord:ngly vest free from ail encumbrances in the State Govrnmn l. Section 2 7 makes provis10n for the distribution of the surplus L.inJ. S2ction 28 of tne Act makes provision in respect of land taKen over from inuustnal undertakmg to ensure eflicient cultivation and con•inucd supply of raw material. The sec.ion as it stood before its amendment by Act 33 of 1968 read as under:-\n\n\"28. ( 1) Where any land hcid by an industrial undertaking is acquired by, and vests, in the State Government under section 21, such land being land which was being used for the purpose of producing or providing raw mateiiaJ for the manufacture or production of any goods, articles or commodities by the uudertaking, the State Govern'ment' shall t(tkc particular care to ensure that the acquisition of the land does not affect adversely the production and supply of raw i;!aterial from the land to the undertaking.\n\n(2) Notwithstanding anytiting contained in section 27 but subject to any rules made in this behalf for the purpose of so ensuring the continuance of the supply of such raw material to the 1mdertaking, and generally for the full and efficient use of the land for agriculture and its efficient management, the State Govemment-\n\n( a) may, if it is in the opinion of that Government necessary for the purpose aforesaid (such opinion being formed after considering .the: representation '>f persons interested therein) maintain 'he integrity o~ the area so acquired, in one or more compact blocks, and\n\n(b) may, subject to such terms and conditiom (including in particular, conditions which are calculated to ensure the full and continued supply of raw material to the undertaking at a fair price), grant the land or any part thereof to a joint farming society (or a member thereof) consisting as far as possible, of-\n\n(i) persons who had previously leased such land to the 1.mdertaking,\n\n(ii) agricultural labour (if any) employed by the undertaking on such land, ( iii) technical or other staff engaged by the undertaking on such land, or in relation to the production or supply of any raw ma•erial, ' \\\n\n(iv) adjoining landholder who arc small holders .. ,\n\n( v) landless pers0ns :\n\nProvided that, the State Government may-\n\n(a) for such period as is necessary for the setting up of joint farming societies as 11foresaid being not more than\n\nthree years iii the first instance (extensible to a furter period-not exceeding two years) from the date of taking\n\nposession of the land, direct that the land acqmred, or any part thereof, shall be cultivaed by one or more farms .ruo or managed by the State, or by one or more corporations\n\n(inc; uding a company) owned or controlled by the State :\n\n< b) grant to the land.ord so much of the surplus land leai; ed by him to the under aking, which together wi.h any other land held by him does not exceed the ceiling area (but if the landlord be a public trust and the major portion of the income from the land is being appropriated for purposes of education or medical relief, grant the en'ire land to the public trust) on condition that the landlord, or as the\n\nce may be, the public trust lease the land to a farm or corporation described in clause (a) aforesaid, and thereafter, in the case of a landlord (not being a public trust) that he becomes a member of the joint farming society, and in the case of a public trust, that it leases the land to a joint farming society.\n\n(3) The State Government may provide that,-\n\n(a) for the breach of any term or condition referred to in clause (b) of sub-section ( 2), or (bl if the landlord to whom the land is granted fails to lease the land to the farm or corporation or to become a member of a joint farming society; ( c) if it c:onsiders after such inquiry as it thinks fit, that the production and supply of raw material to the undertaking is not maintained at the level or in the manner which, with proper and efficient management it ought to be maintained, or ( d) for any other reason it is undesirable in the interest of the full and efficient cultivation of the !and, that tht joint farming socfoty, should continue to cultivate the land, the grant shall, after giving three months' notice or termination thereof and after giving the other party reasonably opportunity of showing cause, be termina'ed, and the land resumed. Thereafter, the State Government may make such other arrangements as it thinks fit for the proper cultivation of the land and main'enance of the production and supoly of raw material to the undertaking. '\n\nAt this stage we may advert to the facts giving rise to the present appeal. The appellant company OW!ls two fac'ories for the manufacture f sugar and allie~ P!oducts. The company held large areas ?f land '.n Ahmednagar district for the cultivation of sugarcane for tt.9 factones. On Marcl-i 1, 1963 Special De11uty Collector respondent No .. 2 declared an area of 8468 acres 26t gunthas in village Sakarwad1 held by lhe appellant company to be in excess of the ceiling\n\nGODAVARI SUGAR MILLS v. s. B. KAMBLB (Khanna, I.) 8 9 1\n\naea. On March 7, 1963 Special Deputy Collector respondent No. 1 passed an order declaring 2677 ares 16. gunthas of appelant-com pany's land situated in Lakshnuwach to be m excess of the ceilmg area.\n\nThus a total area of 12146 arres ; guntha was declared to be surplus. Appeals against the aforesaid oroers were filed by the appellant company to the Maharashtra Revenue Tnbunal.. The appellants & ome others also filed petitions challengmg the const1tut10al valld1cy of the principal Act. A Division Bench ot the Bombay High Court as per judgment dated October 25, 1963 delivered in a petition file~ . by another party upheld the constitutional vlidity of all the prov1s1onii of the principal Act, except section 28 which was struck down. lt w~ held that the provisions of the Act other than section 28 were a measure of agr\\).rian reform and as such protected by article 31A of the Constitution. Section 28 was held to be violative of article 1 .. of the Constitution.\n\nOn June 20, 1964 the Constitution ·(Seventeenth Amendment) Act was passed. As a result of the Seventeenth Amendment of the Constitution the principal Act including section 28 was included in the Niruth Schedule. The petition filed by the appellants challenging the validity of the principal Act was in view of the Seventeenth Amendment dismed by a Division Bench of the Bombay High Court on March 10, 1965. The appellants came up in appeal to this Court against the judgment of the Bombay High Court but that appeal was dismissed by this Court on April 10, 1968. The judgment of this Court is reported in (1968) 3 SCR 712. It may be stated that a stay order was made during the pendency of the appeal filed by the appellants. After the dismissal of the appeal on application filed by the . respondents, the counsel for the appellants gave an undertaking on April 26, 1968 to deliver possession of 10315 acres of land on or before May 2, 1968. Possession of 10315 acres of land in pursuance of the above undertaking was h'lnded over by the aPpCllant company in May 1968. As the joint farming societies referred to in section 28 had not yet been formed, till such formation the said land along with e other land taken over from others in similar circumstances was &:iven for cultivation to the Mahara.htra State Farming Corporation Limited respondent No. 5. The said Corooration was incorporated on March 6, 1963 under the Companies Act and is owned and controUed by the State of Maharashtra respondent No. 3.\n\nOn May 17, 1968 amending Act 16 of 1968 was published. A• a result of th~ amending Act section 28-lA was inserted in the principal ct. Th.is .section extended the pl'.dod for the setting up of join! farming soc1ct1c<; contemplated by sction 28 of the nrincivrrl Act by one year. It also empowered the State Government to make a scheme for th<~ initcrim Deriorl. On June 26. J 96g the anpeJ!an's file:] petition under :irtir.le 226 and 227 of the Constitution for r. declaration that the pri nci !)al Act as amended hy Act 16 of 1968 was unconstitutional. !nterim iniu:iction wa<; issu::d restraining the re, oondent• from t3k-\n\n1g any steps under the amcded Act on June 27, 1968. The injuc t10n was thereafter vacated m respect of 10315 acres of land.\n\nThe appellants also gave an undertaking that they would not pres> their\n\n8 92 SUPllEME COURT llEPORTS\n\n[1975) 3 S.C.R.\n\nappeals bcfor.: the Tribunal in respect of 10315 acres of land.\n\nAoordingly, on July 22, 1968 the MaJurashtra Revenue Tribuna1l dismissed the appeals of the appellants in respect of 10317 acres 3'7 gunthas of land. The appeals regarding the rest of the land measurin:g\n\n1829 acres were kept pending in view of the injunction issued by th~ High Court.\n\nOn December 28, 1968 amending Act 33 of 1968 was published.\n\nSection 2 of the amending Act added an cxplanaion in section 28 as\n\nuuder:\n\n\"Explanatio11.-For the avoidance of dou!>t, it is hereby declared that a producer of raw material (being a person, a joint farming society, or corporation) (including a company) referred to in sub-section (2) shall be liab e to supply raw material to the undertaking concerned only on that undertuling agreeing to accept such supply at the fair price.\"\n\nThe• amending Act also introduced section 28-lB, the material part Of which was as under :\n\n\"28-IB. The supply of raw material by any proclucer ·(being a person, a joint farming society or corporation) (including a company) to the undertaking during any season shall be regulated, and the fair prices at which such supply is to be made to the undertaking shall be fixed, in accordance with the provisions of the Third Schedule.\"\n\nClause 3 of the Third Schedule provided for the formation ot a com·\n\nmittee for fixation of the fair price.\n\nOn July 26, 1969 amending Act 37 of 1969 was published. The: / amending Act made changes in the Third Schedu'e and provided for the setting up of a Board for fixation of the fair price of the raw material supplied to an undertaking under the principal Ac ..\n\nAmending Act 27 of 1970 was published on May J 9, 1970. The long preamble of the Act reads as under :\n\n\"Whereas, section 28 of the Maharashtra Agricultural La:n<ls\n\n(Ceiling on Holdings) Act, 1961 inter alia provides that the State Government shall take particular care to enure that the acquisition of land held by :in industrial undertaking (being land 1vhich was being used for the purpose of oroducing or providing raw material for the manufac'ure or production c.f any goods, articles or commoclities by :he undertaking) does not affect adversely the oroduction and su'\"lnlV of raw material from rnch land to the U'lde, taking: and that for the puroose of so ensuring the continuance of surmly of such raw material to the undertaking, and gerierally for th~ full and efficient use of the hlniJ for a<rriculture anri its efficient\n\nmana.e; emnt, the Sta•c Government mav maintain the integrity of the area so acquired in one or more compact blocks,\n\nJ ) 89.'l GODAVARI SUGAR MILLS I'. s. B. KAMBLE ( 1a11na, '\n\nand may grant the land, or any part throf, to a joint farming society (or a member thereof) cons1stmg of persons referred to in clause (b) of sub-section (2) of that section;\n\nAnd \\.Vhcrcas, that section iuter alia further provide-, that for suh prioJ. as i<> necessary for thl: set :ing up or\n\njoint farming sociclics as provided ill sub-section (2) of that section ( bing not more than five years in the aggregate from th.:. date of taking possession of tht! land), the land acyuircd or ~1ny part thereof should be cutivate:.l by one or more farms run or managed by •he State, or by one or more corporations (in.eluding a company) owned or controlled by the State; c And whereas, the State Government have accordingly\n\nconstituted the Maharashtra State Fanning Corporation Limited (a company formed and registered under the provisions of the Companies Act, 1956)t for managing the farms till the setting up of the joint farming societies aforesaid;\n\nAnd whereas, efforts so far made in the setting up of such societies including the efforts made for the setting up of such societies under the Maharashtra Agricultural Land (Ceiling on Holdings) Setting up of Joint Farming Societies Scheme, 1968, made under section 28-lA of the\n\nsaid Act have not borne fruit, and the periods for the setting up of such societies are due to expire between the months of May and October 1970;\n\nAnd whereas, in the light of experience mentioned aforesaid, it is not possible to say that any such joint farming societies can be set up at all;\n\nAnd whereas, short extensions of time for the setting up I of such joint farming societies is hampering the full and efficient use of the land for agriculture and its efficient management for the reason that the Maharashtra State Farming Corporation is thereby prevented from undertaking any plans or schemes for the improvement of the Land and it is finding it difficult to carry out the objects of clause (b) of sub-\n\nsection (2) of section 28~ ·\n\nAnd whereas, most of the undertakings have also represented to the State Government that cultivation of the land may be continued with the Maharashtra State Farming Corporation on a permanent basis for the reason that implementation of the Joint Farming Societies Scheme aforesaid will lead to fragmentation of land and that since the ceonomic development of land is part of agrarian reform,\n\nthe continuation of the management of the lands by the\n\nsaid Corporation will subserve the purpose of agrarian reform in consonance with the object of the said Act;\n\nAnd whereas the State Government after carefully considering the question, in particular, in the light of what has been set out hcrinabove, is also of opinion that the cultivation of the land should be con, inued with the Maharashtra State Farming Corporation on a permanent basis;\n\nAnd whereas, it is necessary to amend the said Act for the purposes aforesaid, and also for certain other purposes hcrcinaf.cr appearing; it is hereby ena:cted in the Twenty-first Year of the Republic of India as follows :-\"\n\nSections 2 and 3 of the amending Act inserted additional words in the long title and preamble of the principal Act so as to include the words :\n\n\"also to provide that the lands taken over from undertakings and the integrity of which is maintained in compact blocks for ensuring the full and efficient use of the land for agri~ culture and its efficient management through corporations (including a company) owned or controlled by the State, be granted to such corporations or company;\"\n\nSection 4 of the amending Act amended section 21 of the principal Act by providing in a newly inserted susection (5) that where pas-- session of any land delimited as surplus is handed over by the holder in pursuance of an undertaking given by him in any court, and the appeal filed by the holder against the declaration of that land as sur plus has been subsequently withdrawn or dismissed, the land, notwithstanding anything contained in sub-section ( 4), shall with effect from the date on which the possession thereof is taken by the Col lector, be deemed to be duly acquired by the State Government for the purposes of the Act.\n\nSection 7 of the amending Act deleted section 28-1 A of th<: principal Act. Section 28-1 AA was inserted by section 8 of the amending Act, Sub-sections (1) and (2) of section 28-lAA read as under :\n\n\"28-lAA. (1) The State Government may, by notification in the Official Gazette, not later than ninety days from the commencement of the Maharastra Agricultural Lands (Ceiling on Holdings) (Amendment) Act, 1970, grant the surplus land taken over from the industrial undertakings and referred to in section 28 and which is being cultivated by one or mere c0nJ0ratk1ns (including a company) owned and contro!lecl by the State to such corporation, or corporations, as the case mav h~. suhiect to uch terms and conditions, including in particular, the condition of maintaining the interritv of the '>'Jrc1us land. in o; ie or more comnact blocks,\n\nand conditions which are calculated to ensure the fu11 and continued suoolv of raw material to the undertakinr at a fair Price.\n\nOn the (!TRnt of such surnlus land to one or-more corporations ns aforesaid, the provisions of section 28 so far as they provide for setting up of ioint farming societies shall not apply in relation to such surplus land.\n\nGODAYARI SUGAR MILLS v, s. ll. KAMBLE (Klla1111a, J.) 8 95\n\n(2) The State Government may provide that,-\n\n(a) for the breach of any term or condition referred\n\nto in sub-section (1), or\n\n(b) if it considers after such inquiry as it thinks fit, that the production and supply of raw material to the undertaking is not maintained at the ievel or in the manner which, with proper and efficient manag(!mcnt it ought to be maintained, or\n\n'c) for any other reason it is undesirable in the in-\n\n~· terest of the full and efficient cultivation of the land, that the corporation, (including a company) should continue to cultivate the land, uie grant shall, after giving three months' notice of termination thereof, and after giving the corporation reasonable opportunity of showing cause be terminated, and the land resumed. Thereafter, the State Government may itself take steps by running or managing one or more. farms for the proper cultivation of the land and maintenance of the production and supply of raw material to the undertaking at a fair price.\n\nExplanation.-For the avoidance of doubt, it is hereby deciared that a producer of raw material being the corporation (including a company) or the State Government referred to in this section shali be liable o supply raw material to the undertalcing concerned only on that undertaking agreeing to accept such supply at the fair price.\" It may be mentioned that the principal Act has also been amended by Maharashtra Act 50 of 1973 which was published on December 22,\n\n1973. Petitions challenging the validity of the principal Act as amended by Act 50 of 1973 are stated to be pending in the High Court.\n\nThe High Court in the case which is the subject matter of the present appeal allowed amendment of the petition so as to include challenge to the principal Act as amended by Act 27 of 1970. It may also be stated that before the amendment made by Act 27 cf 1970, the principal Act was amended by various amending Acts, besides those to which reference has already been made, but we are not concerned with those other amending ActS.\n\nTo complete the narration we may also refer to the Maharastra Agricultural Lands (Ceilings on Holdings) Grant of Surplus Lands Taken Over from Industrial Undertaking Order, 1970 which was issued by the Maharashtra Government on August 13, 1970 in exercise of the powers conferred by section 28-1 AA of the Act.\n\nClause 2 ( c) of the Order defines \"Corporation\" to mean the Maharashtra State Farming Corporation Ltd.\n\nOause 3 of the Order reads as under :\n\n\"Grant of lands to Corporation.-Tbe lands specified in column 3 of the schedule hereto (being surplus lands taken ove: from the undertakings referred to in section 28 and specified in c_olumn 2 of that schedule) and which are being culti-\n\n8 9(i\n\nSUPREME COURT REPOR!S !197 51 3 S.C.Fl.\n\nvatcd by the CorpGration are hereby granted to the Corporation on payment of occupancy price and on the terms and conditions specified in this Order.\"\n\nClause 4 of the Order specifies the conditions for main! .ining the integrn y llf st:rpluo lanJ, wh.k clause 5 deal<; with conditions so as to en- :; w-e foll and continued supply of raw material to industrial unde11akings.\n\nClaus:: 6 provides for conditions as to termination of grants.\n\nBy the judgment under appeal the High Court, as already me11- 1ioncd, has upheld the validity of t11e impugned Act on the ground that it is protected by articles 31 A and 3 lB of the Constitution.\n\nMr. Sen on behalf of th\" appellants has at the outset assailed tfo .. 1 finding of the High Court in so far as it has held the impugned Ac:t to be protected by article 31 B of the Constitution.\n\n The High Court while affording the protection of article 31B ()f the Cotion to the impugned Act has referred to the fact that tb.e _ _prinefpal Act including section 28 was inserted in the Ninth Schedule to ithe Constitution as item No. 34 by tlte Seventeenth Amendment to the Constitution.\n\nThe submission advanced on behalf of the respondents that the amending Acts of 1968 and 1970 were only ancilliary or incidental to section 28 of the principal Act and as sucl~ the amended Act was protected under article 3 lB found favour wici'i\n\nthe High Court. The High Court accordingly observed : #\n\n\"W c, therefore, hold that section 28-t A, and section 28lAA arc only ancillary or incidental to section 28 of the principal Act and section 21 ( 5) is also ancillary or incidental to section 21 and, therefore, all these three amendments are protected by article 31B of tlte Constitution.\"\n\nWe have given the matter our consideration and are unable to agre;: with the above conclusion of the High Court. Article 31B reads m• und1er:\n\n''3 IB. Without prejudice to the generality of the provi~ sions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the grountl that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any oompetent legislature to repeal or amend it, continue in force.\" ·\n\nThe above article was inserted in the Constitution by the First Amendment. The object of this article is to give a blanket protection to the Acts and Regulatioris specified in tlte Ninth Schedule and the oroviions of those Acts and Regulations against any challenge to tl 0se Acts.\n\nGODA\\'.ARI SUGAR MILLS v. s. B. KAMBLE (Khanna,!.) 897'\n\nRegulations or the provisions thereof on the ground that they are inconsistent with or take away or abridge any of the rights conferred by\n\nPart III of the Constitution.\n\nThe result is that howsoever violative of the fundamental Jjghts may be the provisions of an Act or Regulation, once the Act or Regulation is specified in the Ninth Schedule it would not be liable to be struck down on that score. This immunity against the above challenge would be available notwithstanding any judgment, decree or order of any court or tribunal to the contrary. The effect of article 3 lB, however, is not to prevent challenge to an enactment on the ground that it is beyond the leg; slative competence of the legislature which enacted it It is also plain from the language of the article that the specification of an Act or Regulation would not prevent the competent legislature to repeal or amend it.\n\nThe protection and immunity afforded by article 3 lB is, however, restricted to the provisions of the Act or Regulation as they exist on the date the Act or Regulation is included in the Ninth Schedule.\n\nThe inclusion of the Act and Regulation would protect not only the principal Act or Regulation which is included in the Ninth Schedule but also the amendments which have been made therein till the date of its inclusion in the Ninth Schedule, even though the constitutional amendment by which the Act or Regulation is included in the Ninth Schedule refers oialy to the principal Act and Regulation and not to the amendments thereof.\n\nThe protection or immunity enjoyed by the Act or Regulation, including the amendments thereof till the date of its inclusion in the Ninth Schedule would not, however, extend to the amendmC:11ts made in the Act or Regulation after the date of its inclusion in the Ninth Schedule.\n\nThe reason for that is th>at the inclusion of a Act or Regulation in the Ninth Schedule can be brought about only by means of an amendment of the Constitutid11.\n\nThe amendment of the Constitution can be carried out in accordance with article 368 of the Constitution.\n\nSuch a power is exercised not by the legislature enacting the impugned law but by the authority which makes the constitutional amendme.1t under article 368, viz.. the prescribed majority in each House of Parliament.\n\nSuch a power can be exercised in respect of an existing Act or Regulation of which the provisions can be scrutinized before it is inserted in the. Ninth Schedule. It is for the prescribed majority in each House to decide whether a particutar Act or Regulation should be inserted in the Ninth Schedule, and if so, whether it should be so inserted in its entirety or partly. In case the protection afforded by article 3 lB is extended to amendments made in an Act or Regulation subsequent to its inchision in the Ninth Schedule, the result would be that even those provisions would es.joy the protection which were never scrutinized and could i1ot in the very nature of things have been scrutinized by the prescribed majority vested with the power of amending the Constitution. It would, indeed, be tantamount to giving a power to the State legislature to amend the Constitution in such a way as would enlarge the contents of Ninth Schedule to the Constitution. The protection of article 31B can also not be exten, ded to a new provision inserted as a result of amendment on the grottnd that it is 11-:--564SCl/75\n\n•<racillary or incidental to the provisions to which protection has already been afforded by including them in the Ninth Schedule.\n\nArticle 31B carves out a protected zone. It has inserted Ninth Schedule in the\n\nConstitution and gives immunity to the Acts, Regulations and provisions specined in the said schedule from being struk down oa the ground of infringement of fundamental rights even though they are violative of such rights.\n\nArticle 3 lB thus excludes the operation of fundamental rights in matters dealt with by those Acts, Regula1 ions and provisions. Any provision which has the effect of making an inroad. into the guarantee of fundamental rights in the. very nature of things shqµlcj be construed very strictly, and it would not, in our opinion, be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beymd what is warranted by the language of the provision.\n\nNo Act, Regulation or provision would enjoy immunity and protection of article 3 lB unless it is expressly made a part of the Ninth Schedule.\n\nThe entitlement to protection being confined only to the Acts, Regulations and provisicMs mentioned in the Ninth Schedule, it cannot be extended to provisions which were not included in that schedule.\n\nThis principle would hold good irrespective of the fact whether the provision to which entitlement to protectiCJla is sought to be extended deals with new substantive matters or. D whether it deals with matters which are incidental or ancillmy to those already protected.\n\nWe are fortified in the above conclusion by th, c previous decisions of this Court.\n\nIn the case of Sri Ram Ram Narain Medhi v. State of Bombay(!) the Constitution Bench of this Court dealt with the question as to whether an amcndme'at made by an Act of 1956 would be\n\nprotected by article 3 lB if the 1948 Act in which that amcndme1.1t was made had been induded in the Ninth Schedule to the Constitutioa.\n\nThe question was answered in the negative. Bhagwati, J. speaking for the Court observed :\n\n\"The impugned Act which was passed by the State Legislature in 1956 was a further measure of agrari'an reform carrying forward the intentio 1as which had their roots in the 1948 Act, Having regard to the' comparison of the varicms . provisions of 1948 Act and the impugned Act referred to above it could be legitimately urged th•at if the cognate provisions of the .1948 Act were immune from attack in regard to their constitutionality, on a parity of reasoning similar pro\\'.isioqs contai 1ned in the impugned Act, though they made further strides in the achievement of the objective of . a socialistic pattern of society would be simiJoarly saved. . That position, however, could not obtain because whatever amendments wen; made by the impugned Act in the 1948 Act were future laws within. the meaning of Art. 13 (2) of the Constitution and required to be tested on the self-same touchstO'ae.\n\nThey would not be in terms saved by Art. 3 lB and. would have to be scrutinized on their own merits before the courts came to the conclusion that they were enacted within the\n\n(I) [1959] Supp. I S.C.R. 489.\n\nGODA V, ARI SUGAR MILLS v. s. B. KAMB LE (Khanna, J.) 8 9 9\n\nCl1astitutional limitations.\n\nThe very terms of Art.\n\n3 JB envisaged that any competent legislature w, ould have the power to repeal or amend the Acts and the Regulations specified in the 9th Schedule thereof and if •any such amendment was ever made the vires of that would have to be tested.\" To the same effect is the decision of this Court in the case of Saijan Singh v. State of Rajasthan (1). Gajendragadkar CJ. speaking for the majority observed :\n\n\"There is one more point to which we would like to refer.\n\nJn the case of Sankari Prasad(2) this Court has observed th•at the questioa whether the latter part of Art. 3 lB is too widely expressed, was not argued before it, and so, it did not express any opinion upon it.\n\nThis question has, however, been argued before us, and so, we would like to make it clear that the effect of the last clause in Art. 3 lB is to leave it open to the respective legislatures to repeal or amend the Acts which have been included in the Ninth Schedule.\n\nIn other words, the fact that the said Acts have been i1.1cluded in the Ninth Schedule with a view to make them valid, docs not mean that the legislatures in question which passed the said Acts have lost their competence to repeal them or to amend them. That is one consequence of the said provision. The other inevitable consequence of the said provision is that if a legislature amends any of the provisions contained iJ1 any of the said Acts, the amended provision would not receive the protection of Art. 31 B •and its validity may be liable to be examined on the merits.\"\n\nIn the case of Raman/al Guiab Chand Shah etc. v. State of Gujarat & Ors( 3 ) .. Hidayatullah CJ. also dealt with a similar question and observed:\n\n\"The first question to consider is the vires of the addition to s.65 by the Amending Act, which addition has been F shown i'.1 the section quoted already.\n\nThis matter has to be considered with reference to Arts. 31-A and 31-B read with the Ninth Schedule.\n\nThe protection is claimed on the basis of these two articles by the State. Article 31-B no doubt gives protection to all statutes listed in Schedule IX of the Constitution and this Act is so listed. But it was listed before the amendment of s.65 and that amendment came G to be said to have been considered when the Amendment of the Constitution was made.\n\nThat Amendment if accepted as unassailable will have the indirect effect of amending the original Schedule IX by iacluding something in it which was not there before.\n\nThis is undoubtedly beyond the competence of any state Legislature. The argume'.1t of the learned Attorney General that the general schemes of the.\n\nH Pre•amble and the provisions of s.44 made applicable by\n\n(l) [1965]1 s.c .R.. 933.\n\n(2) [1952] S.C.R. 89.\n\n(3) [1969] S.C. R. 42.\n\ns.65 (2) both of which have the protection of Art:.31-B must A give protection is fallacious.\n\nEven if the preamble and s.44 could be read (and we do not decide that they can !:le so read) to give validity it is clear that the preamble talke4 only of landholders a~1d the addition of the words to s.65 i~ intended to apply to principle to non-landholders. Similarly fhe provi· sions of s.44 under the unamended Act, could not \\Jave been B made applicable to such non-landholders.\n\nThe amendment of s.65 was really carrying the Act into new field~ i!Jld not being considered as an amendment of the Constitutton, how can it claim the protection given to the unamend d Act ?\n\nTherefore Art. 31-B and the Ninth Schedule cannot e called t.1 aid.\" l\n\nThe concluding part of the above passage did not lay d9wn, as Heems C to have been assumed by the High Court, that if an amen<\\ling Act does not cover a new field but contains provisions which are ihcidental and ancillary, to those which are protected by article 3 lB, te a1,11ending Act would also get the protectid.1 of article 31B.\n\nThis Court in the concluding part merely repelled the contention which had been advanced by the Attorney General. The principle which should guide the courts in such cases was, however, laid down in the earlier part D of the passage wherein this Court repelled the argument that the amending Act was unassailable because of the original Act havrag been included in the Ninth Schedule.\n\nIt may be stated that Shah J. was also a party to the above decision. In the subsequent case of State of Orissa v. Chandra Sekhar Singh Bhoi etc.,(I) Shah J. relied upon the above decision and observed E as under:\n\n\"By the amendments made in the Cdnstitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from June\n\n20, 1964. The Act is therefore not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any F of the fu111.damental rights conferred by Part III of the Constitution. But the power of the competent Legislature to repeal or amend the Act incorporated in the Ninth Schedule is not thereby taken away. The amending Act passed after the enactment: of the CO'nstitution (Seventeenth Amendment) Act, 1964 does not therefore qll'alify for the protection of Art. 31-B.\n\nSee Ramanlal Gulabchand Shah etc. v. State of G Gujarat &: Ors. and Sri Ram Ram Narain Medhi v. State of Bombay (supra).\n\nThis position is not disputed.\"\n\nIn the case of State of Maharashtra etc. v. Madhavrao D'.lmodar Patilchand & Ors. etc.(2 ) which wris decided between these very parties, a seven-Judge Bench of this Court repelled the contention that article 31JB does not protect amendi'ag Act 13 of 1962 because H in the Ninth Schedule to the Constitution only the Maharashtra State\n\n(I) [1970J I S.C.R. S93.\n\n\nGODA VARI SUGAR MILLS v. s. B. KAMBLE (Khanna, J.) 90 l\n\nAgricultural Lands (Ceiling on Holdings) Act, 1961 had been included and not the amending Act of 1962.\n\nSikri J. (as he then was) speaki'11gJ for the Court observed :\n\n\"But then there are many other Acts which had been amended before they were inserted in the Ninth Schedule, B and we can. hardly imagine that Parliament intended 011ly to protect the Acts afi originally passed and not the amendments made up to the date of their incorporation into the Ninth Schedule.\n\nThe reason for this express insertion of certai'a amending Acts seems to be that some States, out of abundant caution, recommended that their amending Acts c\n\nbe specifically inserted in the Ninth Schedule.\"\n\nIt was further observed :\n\n\"Accordingly we must overrule the first submission made by the learned counsel for the appellant and hold that Art. 3 lB protects the impugned Act including the arne'.1dments made in it upto the date of its incorporation into the Nirith Schedule.\"\n\nThe next question which arises for consideration is whether the impugned provisions are protected by article 31A of the Constitution.\n\nAccording to Mr. Sen, the effect of the aforesaid provisims is to acquire land held by the appellants and as the acquisition is not for the purpose of agrarian reform, the provisions do not enjoy the protection of article 3 lA. As against that, the learned Attorney General on beh•alf of the responde1ats has contended that the impugned provisions constitute a measure of agrarian reform and as such are protected by article 31 A. ·\n\nIt is now well-established that before the protection of article 3 lA can be afforded to the acquisition of any fand by the State, the acquisition should be for the . purpose of agrariar, reform. As observed bv Subba Rao J. (as he then was) speaking for the majority in the case of Kava/appara Kottarathil Kochuni & Ors. v. The State of Madras & Anr.(l) the object of inserting article 31A in the Constitution and of subsequently amending it was to facilitate agrarian reforms. It was held in that case that an enactment which sought to regulate the rights of sthanees and the ju,1ior members of a tarwad by depriving the sthanee of its properties, and vesting them in the tarwad under the Madras Marumakkathayam (Removal of Doubts) Act, 1955 was not a measure of agrarian reform\n\nIn P. Vajrave./u Mudaliar v. Spec/a/ Dei, vuty Collector (2) Subba Rao J. speaking for the Court while reiterating that the object of article 31A was to enable the State to implement pressimg agrarian reforms held that the purpose of slum clearance for which the land was sought to be acquired under the La>1d Acquisition (Madras Amendment) Act, 1961 could not be related to agrarian reform. It is significant\n\n(1) [1960] 3 S. C.R. 887.\n\n(2) [1965) I S. C.R. 614.\n\nthat this Court in that case dealt with the acquisition of land for development of the area as \"neighbourhood\" in the city of Madras for housi'.1g schemes.\n\nIn the case of Ranjit Singh & Ors. v. State of Punjab & Ors.(!) this Court dealt with, the validity of the East Punjab Holdings (Consolidatim and Prevention of Fragmentation) Act, the Punjab Gram Panchayat Act and the Punjab Village Common Lands (Regulatio11) Act and the proceedings take11 under these enactments, as a result of which proprietor's interest was acquired by the State without compensation.\n\nIt was held that the impugned provisions as also the provisions of the Punjab Security of Land Tei, mres Act were all a part of a general Scheme of agrarian reform nnd the modifications of rights envisaged by them had the protection of Art. 31 (A). Hidayatullah, J. (as he then was) spr.aking for the Court observed :\n\n\"The scheme of rural development today envisages not only equitable distribution of land .so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a: few on the other, but envisages also the raising of economic standards and bettering rural health and social conditiom.\n\nProvisions for the assignment of la•ads to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds .etc. enure for the benefit of rural population must be considered to be a)a essential part of the redistribution of holdings and open lands to which no , objection is apparently taken.\n\nIf agrarian reforms are to succeed, mere distribution of land to the landless is not enough.\n\nThere must be a proper plannitag of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands.\"\n\nIn the case of Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadue) it was held while dealing with the provisions of Uudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act that the object and general scheme of the Act was to abolish intermediaries between the state and the cultivator and to help the acutal cultivator by giving him the status of direct relationship between himself and the state.\n\nThe Act, as such, in its broad outlt.iles was held to be a measure of agrarian reform and protected by article 31A. The acquisition of forests in Janmam estates was held to be not in furtherance of the objective of agrarian reform and consequently not protected by article 31 A.\n\nThis Court in that context observed :\n\n\"In the absence of a•,1ything in the Act to show the purpose for which the forests are to be used by the Government, it cannot be said that the acquisition of the forests in Janmam land would be for a purpose related to agrarian reform. The mere fact that the ownership of forests would stand transferred to the State would not show that the object of the\n\n(I) [1965] l S.C.R. 82.\n\n(2) [1973] 1 S. C.R. 258.\n\nGODAVARI SUGAR MILLS v. s. B. KAMBLE (Khanna, J.) ' 90 3\n\ntransfer is to br~.1g about agrar:•an reform, Augmenting the resources of the State by itself and in the absence of anything more regarding the purposPof utilisation of those resources, cannot be held to be a measure of agrarian reform.\n\nThere is no material on the record to indicate that the transfer of forests from the Janmi to the Govemment is linked in any way with a scheme of agrarian reform or betterment of village economy.\"\n\nIn the case of Kanan Devan Hills Produce Co. Ltd. v. The State of Kera/a & A nr. (1) this Court dealt with the provisions of Kannan Devan Hills (Resumption of Lands) Act.\n\nOne of the questions which arose for determinatioa in that case was whether the three .purposes mentioned in section 9 of the Act, namely :\n\n( 1) reservation of lands for promotion of agriculture;\n\n( 2) reservation of land for the welfare of 'agricultural population;\n\n( 3) assignment of remaining lands tu agriculturists and agricultural labourers;\n\nwere covered by the expression \"agrariaa reform\" and as such the aforesaid provision was protected by article 3 lA of the Constitution. Sikri CJ. while holding that the above objects were covered by the expression \"agrarian reform\" observed :·\n\n\"It is urged that the wording of the first two purposes in s.9 is too wide.\n\nBut if we look at the definition of ·common purpose,' which was sustained by this Court in Ranjit Singh' s case (supra), it shows that the purposes sustained thereby would come under either the expression 'promotid1Tof agriculture' or 'welfare of agricultural population' in s. 9.\n\nIndeed some wculd fall under both.\n\nFor instance, reservation of lands for manure pits, waterworks or wells, village water courses or water channels and grazing grounds would\n\npromote agriculture; schools and playgrounds, dispensaries, public latrines etc. would be for the welfare of agriculturists.\n\nIf the State were to use lands for purposes which have no direct connection with the prom9tion of agriculture or welfare of agricultural population the State could be restrained\n\nfrom using the lands for those purposes.\n\nAny fanciful connection with these purposes would not be e'aough.\n\nIt seems to us that if we read these two purposes to mean that these include only 'common purposes,' which were sustained by this Court and purposes similar . thereto it would be difficult to say that they >are not for agrarian reform. In a sense agrarian reform is wider than land reform. It includes besides land reform something more a'ad that some-\n\n(!) [1973] l S.C.R. 356.\n\nthing more is illustrated by the definition of 'common purpose,' which was sustained by this Court in Ranjit Singh's\n\ncase.\" In the case of State of Kera/a & Anr. v. Gwalior Rayon Silk Mfff. (Wvg.) Co. Ltd. etc.( 1) this Court dealt with the provisions of the Kerala Private Forests (Vesting and Assignment) Act, under wbich private forest lands situated i'..1 the former Malabar district stood transforred to the State. The Act was held to be a measure of agrarian reform anµ as such protected by article 31A. Palekar J. speaking for the majority in that case observed :\n\n\"The objectives of increasing the agricultural production and the promotion of the welfare of the agricultural population are clearly a predominant element in agrarian reform.\n\nHow those objectives are to be implemented are generally stated in se:ctions 10 a',1d 11. All the private forests, after certain reservations, -are to be assigned to agriculturists or agricultural labourers and to the poorer classes of the rural population desiring bona fide to take up agriculture as a means of their livelihood. The reservation in respect of certain portions of the forests is also made in the interest of the agricultural population because the section says that the reservations will be such as may be 1,1ecessary for purposes directed towards the promotion of agriculture or welfare of the agricultural population or for purposes oancillary thereto.\" Krishna Iyer J. speaking for himself and Bhagwati J. agreed with the conclusions of the majority and observed :\n\n\"Once we accept the thesis that development orientation and distributive justice are vart of and inspire activist agrarian reform, its sweep and reach must extend to cover the needs of the village community as well.\n\nWhat programme of agrarian reform should be initiated to satisfy the requirement of rural uplift in a particular community under the prevailing circumstances is a matter for legislative judgmP, nt.\" In Kh. Fid61 Ali & Ors. v. State of Jammu and Kashmir(2) this Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act were protected by article 31A.\n\nOne of us (Goswami J.) observed :\n\n\"From a review of the foregoi1.1g provisions it is obvious that the Act contains a dear programme of agrarian reforms in taking stock of the land in the State which is not in personal cultivation (section 3) a:ad which though in personal cultivation ii; in excess of the ceiling area (section 4). A ceiling area is fixed for land or orchards or both measuring 12t standard acres.\n\nAfter the l'and vests i111 the State, in accordance. with the provisions of the Act, a provision is made for dis; posal of the surplus land in accordance with the rules.\"\n\n(I) [1973] 2 S.C.C. 713.\n\n(2) [1974] 2 s.c.c. 253.\n\nGODAVARI SUGAR MILLS v. s. B. KAMBLE (Khanna, J.) 905\n\nThe following principles can be infered fqm the decided cases in order to find whether an impugned enactmenl for acquisition of la1,1d is protected by article 31 A :\n\n(1) Acquisition of fand by the State in order to enjoy the protection of article 3 lA should be for the purpose of agrarian reform.\n\n(2) Acquisition of land by taking it from a senior member of the family and giving it to a junior member is not , a measure of agrarian reform.\n\n(3) Acquisition of land for url:Yan slum clearance or for a housing scheme a the neighbourhood of a big city is not a measure of agrarian reform.\n\n( 4) Acquisition of land by the State withoui specifying the purpose for which land is to be used is not a measure of agraria~1 reform.\n\n(5) Schemes of rural development envisage not only equitable distribution of land , but oalso raising of economic standards and bettering of rural healt}l and social conditions in the viJiages.\n\nProvision for the assignment of land to a Pa.1chayat for the use of the general community ot for hospitals, schools, manure pits, tanning grounds enure for the benefit of the rural, population and as such constitute a measure of agrarian reform.\n\n( 6) Provision for reservation of land for promotid,1 of agriculture and for the welfare of agricultuml population constitutes a measure of agrarian reform. Agrariim reform is wider than land reform. ,\n\n(7) If the dominant and general purpose of the scheme is agrariat,1 reform, the scheme may provide for ancillary provisions to give full effect to the scheme.\n\n( 8) A provision fixing ceiling area and providing for the\n\ndisp&al of surplus land in accordance with the rules is a measure of agrarian reform.\n\nKeeping in view the above principles, let us now examine the impugned provisions in the preent case. Sectid,1 3 of the impugned Act imposes ceiling on holding of agricultural loand.\n\nSection 4 provides that no person shall hold land in excess of the ceiling area.\n\nEnquiry is to be made under section. 14 of the Act by the Collector for determining as to what area should be decloared to be in excess, of the ceiling area.\n\nOn completion of the enquiry if the Collector finds the 'holdi11g of a person to be in excess of the ceiling area, he makes a declaration under section 21 of the Act giving particulars of the oarea which is delimited as surplus land.\n\nPossession of the surplus loand is then taken by the Collector. From the date of delivery of possession the land vests free from all encumbrances in the State Government.\n\nSection 27 provides for the distribution of surplus land and fixes priorities for the purpose.\n\nScctiela 28 made a special provsion in respect of lands taken over from industrial U'.1dertakings to ensure efficient cultivation and continued supply of raw material for those undertakings.\n\nFor the aforesaid purpose if the State Government considcml it necessary to maintain the i'atcgrity of the land acquired from the industrial undertaking in one or more compact blocks, it might, subject to such terms and conditions, including in particular conditions which were calculated to ensure the full and continued supply of :raw mJkrial to the undertaking at a fair price, grant the land or any part thereof to a joint farming society or member thereof consisting as far as possible of the pe:rsons specified in that section.\n\nProvision was also made in that section for terminafa1g the grant of the land for the reasons mentioned in sub-section ( 3) of that section and for. making such other arrangement as the State Government thought fit for the proper cultivation of the h1',1d and the maintenance, producllion and supply of raw material to the undertaking.\n\nIt would appear from the preamble to amending Act 27 of 1970 and the affidavit of Shri I. G. Karandikar, Under Secretary to Government of Maharashtra that efforts to set up joint farming societies contemplated by section 28 of the Act did not bear fruit in spite of the fact that the time for the setting up of those societies was extended. The State Gove1•,1mcnt then found that short extensions of time for the setting up of those societies was hampering the full and efficient use of land for agriculture and the Maharashtra State Farming Corporation which had been cultivating that la1ad for the interim period could not undertake any plans or schemes for the improvement of the land because Qf the short extensions.\n\nThe State Gover'.1mero.t, therefore, decided that the cultivation of the land might be continued with the Mah'lrashtra State Farming Corporation on a perma1aent basis. In\n\narriving at this decision, the State Government was also influenced by the consideration that the implementation of the joint farming soci<:ties scheme would lead to fragmentation of the land and hamper its economic development. This led to the insertion of section 28-lAA in the Act and the other amendments of the principal Act by Act 27 of 1970.\n\nConspectus of tht different provisim1s of the impugned Act, in our opinion, goes to show that the main purpose of the Act was to prevent concentration of agricultural land in the hands of a few.\n\nA ceiling was consequently imposed regarding the extent of land which might be held by an i1adividual.\n\nSurplus land was distributed in accordance with section 27 of the Act. It C'annot be disputed that the provisions of the impugned Act in so far as the above objects were concerned effectuated the object of agrarian reform.\n\nAs regards lands which were held by the industrial undertakings for the purpose of producing and providing raw material f9r the manufacture of goods by those uadertakings, the legii; lature made special provision in order to ensure that the acquisition of the aforesaid land did not affect adversely the production and supply of the raw material to the undertaking.\n\nThe object was fun;1er <:' make full and efficient use of the land for agriculture and also if considered necessary to maintain the integrity of the area so acquired in one or more compact blocks.\n\nThe kgislature for ti; ii; purpose initially made provision for the grant of the\n\nGODAVARI SUGAR MILLS v, s. B. KAMBLE (Khanna, J.) 907\n\naforesaid lands to joint farming societies but as the proposal to set up· these societies 'did not bear fruit the legislature made provision that the aforesaid laads be given for cultivation to the State Corporation.\n\nSectiou 28-JAA, in our opinion, was an integral part of a general schcm.: of Act to bring about agrarian reform and, in our opinion the impugned provisions of the Act, including section 28-lAA, are protected by article 31A of the Constitution. lt has oeen argued by Mr.\n\nSen thaL distribution of acquired land among landless persons or poor pt:asants is an essential attribute of agrarian reform and that as the lands oftlli.' industrial undertakings are not to be distributed but have to be t:u!Livaki.l by the Farming Corporation owned by the State, the acquisition cannot be considered to be a measure of agrarian reform.\n\nWe arc not impressed by this argument.\n\nAcquisition of land held by industrial undertakings is not to be taken in isolation but as a part of the general scheme and object of the Act that there should be a ceiling on private holdings.\n\nWhile surplus lands of individuals are to be distributed, the legislature has made special provision in respect of land hdd by an industrial undertakings w:hich had been cultivated for supplying raw material to the industrial undertaking. lt has been provided in the case: of such land that it should be cultivated by the Farming Corporation in an efficient manner so that the supply of raw material to the industrial undertaking might not be affected.\n\nIt is, no doubt, trne that distribu tion of acquired land among landless persons and -poor peasants in a vast majority of cases is a part of the scheme of agrarian reform; the fact that in the t:ase of some huge tract of land whic.lh is used for a particular purpose the statute in order to prevent its fragmentation and to subservc that purpose provides that it should be cultivated by a Statt~- 0wned forming corporation would not justify the inference that the statutory requirement in this respect is not a part of a J;,; enernl scheme of agrarian reform. Section 28-lAA does not operate in a vacuum.\n\nThe section has to be taken in its context and setti'ng with the other provisions of the Act. If the provisions of the Act seek to remove economic imbalance by taking the surplus lands of holders in excess of a ceil-· ing and if the provisions of the Act farther contemplate that most of the lands after acquisition be distributed to poor peasants and landless persons, the fact that a few blocks of land because of their size and past use for cultivation of raw mate:ial for industrial undertakings are required under the provisions of the Act to be not fragmented, which would inevitably be the result if t'iey were to be distributed like other lands acquired under the Act, but to be retained as compact blocks for being cultivated by the farming corporation so that the industrial undertakings are not starved of the raw material, the last mentioned provision cannot be detached from the rest of the Act and struck down as being not a measure of agrarian reform.\n\nIt is no doubt true that acquisition simpliciter of the land by the State to augment its resources and without\n\npccifying the purpose for which it is to be used after acquisition would not get the protection of article 3 lA. To decide the question of pro-- tection Wfo must look at the general scheme of the statute containing pruvision for the acquisition, the object of the acquisition and the reasons which weigh for retaining the land with the State or its corporation and not distributing it among the landless persons and the poor peasants.\n\nThe concpt of agrarian reform, it needs to be emphasised. is not static and cannot a !ways be put in a straitjacket. With the change of times.\n\nunder the impact of fresh ideas and in the context of fresh situations, the A concept of agrarian reform is bound to acquire new dimensions.\n\nA rneasu!:e which has the effect of improving the rural economy or promoting rural welfare would be a part of agrarian reform.\n\nAlthough in most of the cases, as already mentioned, the agrarian reform would require distribution of surplus land among the poor peasants and landless persons living in the villages, situations might well arise where it would be\n\nin the interest of rural economy that any compact area of land inst, ad B 11f being fragmented by distribution should be preserved as one compact block and be cultivated by a State-owned farming corporation.\n\nThe fact that part of the acquired land would remain vested in the S1:ate Government or State-owt,1ed farming corporation would not militate against the object of agrarian reform if the continued vesting of the land in t.he Government or the CorPQration is a part of •a general scheme of agrarian reform and there is no oblique deviatid,1 from the avowed pur- C pose. In the case of Ranjit Singh v. State of Punjab (supra), part of the acquired land was to vest in the State Government for schools, playf, rounds, dispensaries, hospitals, waterworks, tubewells and as the above vesting was a part of a general scheme of rural welfare, the statute :providing for that vesting was upheld and afforded the protection of article\n\n31 A.\n\nAncillary provisions to give full effect to a scheme of agrarian reform, it may be stressed, would also have the protection of article 3 lA.\n\nWe may note that argument has also been advanced by the learned Atllirncy General regarding the locus standi of the appellants to file the petition giving rise to the present appea!.. It_ is urged tht the appellants have no locus standi to file the petition m respect of land measuring 10315 acres as unconditional possession thereof was delivered in M'ay l Yb8.\n\nJn the alternative, it is sumitted that clause (5) of sec- E tion 21 of the impugned Act which was 1_nroduced by amen?mg Act 27 of 1970 is severable from the other prov1s1ons of the amendmg Act and is in any case constitutionally valid.\n\nAs land measuring 10315 ac!es in accordance with the above clause had already vested betore the filmg of the petition in the State Government, the appellants had . no. locus standi to file petition in respect of that ra of land. It 1s H? _our opinion, not necessary to cxpres an opm10~ on the aboye submissions F of the Attorney General in view of our finding _tha~ the impugned provisions are protected by article 31 A of the Const1tut1on.\n\nThe appeal consequently fails and is dismissed. In the circ:umstances of the case, we make ao order as to costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 269, "entities": [{"text": "GODAVARI SUGAR MILLS LTD. AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "GODAVARI SUGAR MILLS LTD. AND ORS", "offset_not_found": false}}, {"text": "S. B. KAMBLE AND ORS", "label": "RESPONDENT", "start_char": 36, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "S. B. 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"end_char": 8330, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 8381, "end_char": 8386, "source": "regex", "metadata": {"statute": null}}, {"text": "From the preamble to the Amending Act", "label": "STATUTE", "start_char": 8962, "end_char": 8999, "source": "regex", "metadata": {}}, {"text": "s. 28", "label": "PROVISION", "start_char": 9154, "end_char": 9159, "source": "regex", "metadata": {"linked_statute_text": "From the preamble to the Amending Act", "statute": "From the preamble to the Amending Act"}}, {"text": "Maharashtra State Farming Corporation", "label": "ORG", "start_char": 9412, "end_char": 9449, "source": "ner", "metadata": {"in_sentence": "The State Government also found that sh@rt extensions of time was hampering the full and efficient use of tre land for agriculture and the Maharashtra State Farming Corporation, which hact been cultivating that land for the interim period, could not undertake any plans or schemes for the improvement of the land because of the short extensions."}}, {"text": "Maharashtra Stat~ Farming Corporation", "label": "ORG", "start_char": 9721, "end_char": 9758, "source": "ner", "metadata": {"in_sentence": "The State Government, therefore, decided that the cultivation of the land might be continued wi.h the Maharashtra Stat~ Farming Corporation on a permanent basis."}}, {"text": "S. 28", "label": "PROVISION", "start_char": 10717, "end_char": 10722, "source": "regex", "metadata": {"statute": null}}, {"text": "[1965] 1 S.C.R. 82", "label": "CASE_CITATION", "start_char": 12772, "end_char": 12790, "source": "regex", "metadata": {}}, {"text": "K. Se11 M. C. Bhandare", "label": "PETITIONER", "start_char": 13007, "end_char": 13029, "source": "ner", "metadata": {"in_sentence": "A. 1 K. Se11 M. C. Bhandare, D. M. Popat, S. I.\n\nThakore, P H. f'arek and Sunanda Blumdare, for the appellant."}}, {"text": "D. M. Popat", "label": "LAWYER", "start_char": 13031, "end_char": 13042, "source": "ner", "metadata": {"in_sentence": "A. 1 K. Se11 M. C. Bhandare, D. M. Popat, S. I.\n\nThakore, P H. f'arek and Sunanda Blumdare, for the appellant."}}, {"text": "S. I.\n\nThakore", "label": "LAWYER", "start_char": 13044, "end_char": 13058, "source": "ner", "metadata": {"in_sentence": "A. 1 K. Se11 M. C. Bhandare, D. M. Popat, S. I.\n\nThakore, P H. f'arek and Sunanda Blumdare, for the appellant."}}, {"text": "P H. f'arek", "label": "LAWYER", "start_char": 13060, "end_char": 13071, "source": "ner", "metadata": {"in_sentence": "A. 1 K. Se11 M. C. Bhandare, D. M. Popat, S. I.\n\nThakore, P H. f'arek and Sunanda Blumdare, for the appellant."}}, {"text": "Sunanda Blumdare", "label": "LAWYER", "start_char": 13076, "end_char": 13092, "source": "ner", "metadata": {"in_sentence": "A. 1 K. Se11 M. C. Bhandare, D. M. Popat, S. I.\n\nThakore, P H. f'arek and Sunanda Blumdare, for the appellant."}}, {"text": "n De", "label": "LAWYER", "start_char": 13114, "end_char": 13118, "source": "ner", "metadata": {"in_sentence": "n De, Attorney General of India and M. N. Shroff, for the ents l-4."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 13150, "end_char": 13162, "source": "ner", "metadata": {"in_sentence": "n De, Attorney General of India and M. N. Shroff, for the ents l-4.", "canonical_name": "M. N. Shroff"}}, {"text": "I. . Shroff", "label": "LAWYER", "start_char": 13183, "end_char": 13194, "source": "ner", "metadata": {"in_sentence": "I. .", "canonical_name": "M. N. Shroff"}}, {"text": "J. C. Bhatt", "label": "LAWYER", "start_char": 13200, "end_char": 13211, "source": "ner", "metadata": {"in_sentence": "Shroff, and J. C. Bhatt, for respondent No."}}, {"text": "KHA NA", "label": "JUDGE", "start_char": 13282, "end_char": 13288, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by :\n\nKHA NA, J.\n\nThe short question which arisl:S in this appeal filed on cert cate by Godavari Sugar Mills Ltd. ad its two."}}, {"text": "Godavari Sugar Mills Ltd.", "label": "ORG", "start_char": 13364, "end_char": 13389, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by :\n\nKHA NA, J.\n\nThe short question which arisl:S in this appeal filed on cert cate by Godavari Sugar Mills Ltd. ad its two."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 13451, "end_char": 13468, "source": "ner", "metadata": {"in_sentence": "sharehold~ directors against the judgment of the Bombay High Court is the constitutional alidity of Maharashtra Agricultural Lands (Ceiling on H@ldings) Act, 1961 (Maharashtra Act No."}}, {"text": "January 7:6 1962", "label": "DATE", "start_char": 13901, "end_char": 13917, "source": "ner", "metadata": {"in_sentence": "on January 7:6 1962: ccord ing to its long title, 1t was an act to impose a maximum llnut (or c:eiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held illl excess of such ceiling; and for matters connected with the purposes aforesaid."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 14054, "end_char": 14065, "source": "ner", "metadata": {"in_sentence": "on January 7:6 1962: ccord ing to its long title, 1t was an act to impose a maximum llnut (or c:eiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held illl excess of such ceiling; and for matters connected with the purposes aforesaid."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 14212, "end_char": 14221, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 14732, "end_char": 14741, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 14822, "end_char": 14831, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n12", "label": "PROVISION", "start_char": 15019, "end_char": 15030, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 15043, "end_char": 15053, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 15387, "end_char": 15397, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 15550, "end_char": 15559, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 16170, "end_char": 16179, "source": "regex", "metadata": {"statute": null}}, {"text": "S2", "label": "PROVISION", "start_char": 16241, "end_char": 16243, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 16601, "end_char": 16611, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 17044, "end_char": 17054, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahmednagar", "label": "GPE", "start_char": 20835, "end_char": 20845, "source": "ner", "metadata": {"in_sentence": "f land '.n Ahmednagar district for the cultivation of sugarcane for tt.9 factones."}}, {"text": "Sakarwad1", "label": "GPE", "start_char": 21025, "end_char": 21034, "source": "ner", "metadata": {"in_sentence": "On Marcl-i 1, 1963 Special De11uty Collector respondent No .. 2 declared an area of 8468 acres 26t gunthas in village Sakarwad1 held by lhe appellant company to be in excess of the ceiling\n\nGODAVARI SUGAR MILLS v. s. B. KAMBLB (Khanna, I.) 8 9 1\n\naea."}}, {"text": "March 7, 1963", "label": "DATE", "start_char": 21162, "end_char": 21175, "source": "ner", "metadata": {"in_sentence": "On March 7, 1963 Special Deputy Collector respondent No."}}, {"text": "Lakshnuwach", "label": "GPE", "start_char": 21306, "end_char": 21317, "source": "ner", "metadata": {"in_sentence": "gunthas of appelant-com pany's land situated in Lakshnuwach to be m excess of the ceilmg area."}}, {"text": "Maharashtra Revenue Tnbunal", "label": "ORG", "start_char": 21504, "end_char": 21531, "source": "ner", "metadata": {"in_sentence": "Appeals against the aforesaid oroers were filed by the appellant company to the Maharashtra Revenue Tnbunal.. The appellants & ome others also filed petitions challengmg the const1tut10al valld1cy of the principal Act."}}, {"text": "October 25, 1963", "label": "DATE", "start_char": 21707, "end_char": 21723, "source": "ner", "metadata": {"in_sentence": "A Division Bench ot the Bombay High Court as per judgment dated October 25, 1963 delivered in a petition file~ ."}}, {"text": "section 28", "label": "PROVISION", "start_char": 21859, "end_char": 21869, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 21946, "end_char": 21956, "source": "regex", "metadata": {"statute": null}}, {"text": "article 31A", "label": "PROVISION", "start_char": 22018, "end_char": 22029, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 22051, "end_char": 22061, "source": "regex", "metadata": {"statute": null}}, {"text": "article 1", "label": "PROVISION", "start_char": 22090, "end_char": 22099, "source": "regex", "metadata": {"statute": null}}, {"text": "June 20, 1964", "label": "DATE", "start_char": 22128, "end_char": 22141, "source": "ner", "metadata": {"in_sentence": "On June 20, 1964 the Constitution ·(Seventeenth Amendment) Act was passed."}}, {"text": "section 28", "label": "PROVISION", "start_char": 22289, "end_char": 22299, "source": "regex", "metadata": {"statute": null}}, {"text": "March 10, 1965", "label": "DATE", "start_char": 22516, "end_char": 22530, "source": "ner", "metadata": {"in_sentence": "The petition filed by the appellants challenging the validity of the principal Act was in view of the Seventeenth Amendment dismed by a Division Bench of the Bombay High Court on March 10, 1965."}}, {"text": "April 10, 1968", "label": "DATE", "start_char": 22672, "end_char": 22686, "source": "ner", "metadata": {"in_sentence": "The appellants came up in appeal to this Court against the judgment of the Bombay High Court but that appeal was dismissed by this Court on April 10, 1968."}}, {"text": "(1968) 3 SCR 712", "label": "CASE_CITATION", "start_char": 22730, "end_char": 22746, "source": "regex", "metadata": {}}, {"text": "April 26, 1968", "label": "DATE", "start_char": 22982, "end_char": 22996, "source": "ner", "metadata": {"in_sentence": "respondents, the counsel for the appellants gave an undertaking on April 26, 1968 to deliver possession of 10315 acres of land on or before May 2, 1968."}}, {"text": "May 2, 1968", "label": "DATE", "start_char": 23055, "end_char": 23066, "source": "ner", "metadata": {"in_sentence": "respondents, the counsel for the appellants gave an undertaking on April 26, 1968 to deliver possession of 10315 acres of land on or before May 2, 1968."}}, {"text": "section 28", "label": "PROVISION", "start_char": 23241, "end_char": 23251, "source": "regex", "metadata": {"statute": null}}, {"text": "Mahara.htra State Farming Corporation Limited", "label": "ORG", "start_char": 23417, "end_char": 23462, "source": "ner", "metadata": {"in_sentence": "As the joint farming societies referred to in section 28 had not yet been formed, till such formation the said land along with e other land taken over from others in similar circumstances was &:iven for cultivation to the Mahara.htra State Farming Corporation Limited respondent No."}}, {"text": "March 6, 1963", "label": "DATE", "start_char": 23522, "end_char": 23535, "source": "ner", "metadata": {"in_sentence": "The said Corooration was incorporated on March 6, 1963 under the Companies Act and is owned and controUed by the State of Maharashtra respondent No."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 23546, "end_char": 23559, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Maharashtra", "label": "RESPONDENT", "start_char": 23594, "end_char": 23614, "source": "ner", "metadata": {"in_sentence": "The said Corooration was incorporated on March 6, 1963 under the Companies Act and is owned and controUed by the State of Maharashtra respondent No."}}, {"text": "May 17, 1968", "label": "DATE", "start_char": 23637, "end_char": 23649, "source": "ner", "metadata": {"in_sentence": "On May 17, 1968 amending Act 16 of 1968 was published."}}, {"text": "section 28", "label": "PROVISION", "start_char": 23721, "end_char": 23731, "source": "regex", "metadata": {"statute": null}}, {"text": "June 26. J 96", "label": "DATE", "start_char": 23999, "end_char": 24012, "source": "ner", "metadata": {"in_sentence": "On June 26."}}, {"text": "MaJurashtra Revenue Tribuna1l", "label": "PETITIONER", "start_char": 24605, "end_char": 24634, "source": "ner", "metadata": {"in_sentence": "Aoordingly, on July 22, 1968 the MaJurashtra Revenue Tribuna1l dismissed the appeals of the appellants in respect of 10317 acres 3'7 gunthas of land."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 24920, "end_char": 24929, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 24973, "end_char": 24983, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 25384, "end_char": 25394, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 25762, "end_char": 25776, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 25780, "end_char": 25788, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 25796, "end_char": 25810, "source": "regex", "metadata": {"statute": null}}, {"text": "July 26, 1969", "label": "DATE", "start_char": 25892, "end_char": 25905, "source": "ner", "metadata": {"in_sentence": "On July 26, 1969 amending Act 37 of 1969 was published."}}, {"text": "May J 9, 1970", "label": "DATE", "start_char": 26189, "end_char": 26202, "source": "ner", "metadata": {"in_sentence": "The: / amending Act made changes in the Third Schedu'e and provided for the setting up of a Board for fixation of the fair price of the raw material supplied to an undertaking under the principal Ac ..\n\nAmending Act 27 of 1970 was published on May J 9, 1970."}}, {"text": "section 28", "label": "PROVISION", "start_char": 26261, "end_char": 26271, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra State Fanning Corporation Limited", "label": "ORG", "start_char": 27900, "end_char": 27945, "source": "ner", "metadata": {"in_sentence": "land), the land acyuircd or ~1ny part thereof should be cutivate:.l by one or more farms run or managed by •he State, or by one or more corporations (in.eluding a company) owned or controlled by the State; c And whereas, the State Government have accordingly\n\nconstituted the Maharashtra State Fanning Corporation Limited (a company formed and registered under the provisions of the Companies Act, 1956)t for managing the farms till the setting up of the joint farming societies aforesaid;\n\nAnd whereas, efforts so far made in the setting up of such societies including the efforts made for the setting up of such societies under the Maharashtra Agricultural Land (Ceiling on Holdings) Setting up of Joint Farming Societies Scheme, 1968, made under section 28-lA of the\n\nsaid Act have not borne fruit, and the periods for the setting up of such societies are due to expire between the months of May and October 1970;\n\nAnd whereas, in the light of experience mentioned aforesaid, it is not possible to say that any such joint farming societies can be set up at all;\n\nAnd whereas, short extensions of time for the setting up I of such joint farming societies is hampering the full and efficient use of the land for agriculture and its efficient management for the reason that the Maharashtra State Farming Corporation is thereby prevented from undertaking any plans or schemes for the improvement of the Land and it is finding it difficult to carry out the objects of clause (b) of sub-\n\nsection (2) of section 28~ ·\n\nAnd whereas, most of the undertakings have also represented to the State Government that cultivation of the land may be continued with the Maharashtra State Farming Corporation on a permanent basis for the reason that implementation of the Joint Farming Societies Scheme aforesaid will lead to fragmentation of land and that since the ceonomic development of land is part of agrarian reform,\n\nthe continuation of the management of the lands by the\n\nsaid Corporation will subserve the purpose of agrarian reform in consonance with the object of the said Act;\n\nAnd whereas the State Government after carefully considering the question, in particular, in the light of what has been set out hcrinabove, is also of opinion that the cultivation of the land should be con, inued with the Maharashtra State Farming Corporation on a permanent basis;\n\nAnd whereas, it is necessary to amend the said Act for the purposes aforesaid, and also for certain other purposes hcrcinaf.cr appearing; it is hereby ena:cted in the Twenty-first Year of the Republic of India as follows :-\"\n\nSections 2 and 3 of the amending Act inserted additional words in the long title and preamble of the principal Act so as to include the words :\n\n\"also to provide that the lands taken over from undertakings and the integrity of which is maintained in compact blocks for ensuring the full and efficient use of the land for agri~ culture and its efficient management through corporations (including a company) owned or controlled by the State, be granted to such corporations or company;\"\n\nSection 4 of the amending Act amended section 21 of the principal Act by providing in a newly inserted susection (5) that where pas-- session of any land delimited as surplus is handed over by the holder in pursuance of an undertaking given by him in any court, and the appeal filed by the holder against the declaration of that land as sur plus has been subsequently withdrawn or dismissed, the land, notwithstanding anything contained in sub-section ( 4), shall with effect from the date on which the possession thereof is taken by the Col lector, be deemed to be duly acquired by the State Government for the purposes of the Act."}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 28007, "end_char": 28026, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 28", "label": "PROVISION", "start_char": 28373, "end_char": 28383, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "section 28", "label": "PROVISION", "start_char": 29125, "end_char": 29135, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 2 and 3", "label": "PROVISION", "start_char": 30208, "end_char": 30224, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 30695, "end_char": 30704, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 30733, "end_char": 30743, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 31329, "end_char": 31338, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 31367, "end_char": 31377, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 31405, "end_char": 31415, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 31437, "end_char": 31446, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 31496, "end_char": 31506, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 31825, "end_char": 31835, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 32395, "end_char": 32405, "source": "regex", "metadata": {"statute": null}}, {"text": "December 22,\n\n1973", "label": "DATE", "start_char": 34026, "end_char": 34044, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that the principal Act has also been amended by Maharashtra Act 50 of 1973 which was published 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specified in c_olumn 2 of that schedule) and which are being culti-\n\n8 9(i\n\nSUPREME COURT REPOR!S !"}}, {"text": "section 28", "label": "PROVISION", "start_char": 35219, "end_char": 35229, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 4", "label": "PROVISION", "start_char": 35503, "end_char": 35511, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 35605, "end_char": 35613, "source": "regex", "metadata": {"statute": null}}, {"text": "articles 31", "label": "PROVISION", "start_char": 35945, "end_char": 35956, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 35994, "end_char": 35997, "source": "ner", "metadata": {"in_sentence": "Mr. Sen on behalf of th\" appellants has at the outset assailed tfo .. 1 finding of the High Court in so far as it has held the impugned Ac:t to be protected by article 31 B of the Constitution."}}, {"text": "article 31", 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C.R. 258", "label": "CASE_CITATION", "start_char": 56276, "end_char": 56296, "source": "regex", "metadata": {}}, {"text": "section 9", "label": "PROVISION", "start_char": 57074, "end_char": 57083, "source": "regex", "metadata": {"statute": null}}, {"text": "article 3", "label": "PROVISION", "start_char": 57418, "end_char": 57427, "source": "regex", "metadata": {"statute": null}}, {"text": "s.9", "label": "PROVISION", "start_char": 57620, "end_char": 57623, "source": "regex", "metadata": {"statute": null}}, {"text": "Ranjit Singh", "label": "OTHER_PERSON", "start_char": 57729, "end_char": 57741, "source": "ner", "metadata": {"in_sentence": "But if we look at the definition of ·common purpose,' which was sustained by this Court in Ranjit Singh' s case (supra), it shows that the purposes sustained thereby would come under either the expression 'promotid1Tof agriculture' or 'welfare of agricultural population' in s. 9."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 57913, "end_char": 57917, "source": "regex", "metadata": {"statute": null}}, {"text": "article 31A", "label": "PROVISION", "start_char": 59388, "end_char": 59399, "source": "regex", "metadata": {"statute": null}}, {"text": "Palekar", "label": "JUDGE", "start_char": 59401, "end_char": 59408, "source": "ner", "metadata": {"in_sentence": "The Act was held to be a measure of agrarian reform anµ as such protected by article 31A. Palekar J. speaking for the majority in that case observed :\n\n\"The objectives of increasing the agricultural production and the promotion of the welfare of the agricultural population are clearly a predominant element in agrarian reform."}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 60313, "end_char": 60325, "source": "ner", "metadata": {"in_sentence": "Krishna Iyer J. speaking for himself and Bhagwati J. agreed with the conclusions of the majority and observed :\n\n\"Once we accept the thesis that development orientation and distributive justice are vart of and inspire activist agrarian reform, its sweep and reach must extend to cover the needs of the village community as well."}}, {"text": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act", "label": "STATUTE", "start_char": 60904, "end_char": 60980, "source": "regex", "metadata": {}}, {"text": "article 31A", "label": "PROVISION", "start_char": 60999, "end_char": 61010, "source": "regex", "metadata": {"linked_statute_text": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act", "statute": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act"}}, {"text": "Goswami", "label": "JUDGE", "start_char": 61024, "end_char": 61031, "source": "ner", "metadata": {"in_sentence": "v. State of Jammu and Kashmir(2) this Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act were protected by article 31A.\n\nOne of us (Goswami J.) observed :\n\n\"From a review of the foregoi1.1g provisions it is obvious that the Act contains a dear programme of agrarian reforms in taking stock of the land in the State which is not in personal cultivation (section 3) a:ad which though in personal cultivation ii; in excess of the ceiling area (section 4)."}}, {"text": "section 3", "label": "PROVISION", "start_char": 61245, "end_char": 61254, "source": "regex", "metadata": {"linked_statute_text": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act", "statute": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act"}}, {"text": "section 4", "label": "PROVISION", "start_char": 61333, "end_char": 61342, "source": "regex", "metadata": {"linked_statute_text": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act", "statute": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act"}}, {"text": "article 31", "label": "PROVISION", "start_char": 61859, "end_char": 61869, "source": "regex", "metadata": {"linked_statute_text": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act", "statute": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act"}}, {"text": "article 3", "label": "PROVISION", "start_char": 61948, "end_char": 61957, "source": "regex", "metadata": {"linked_statute_text": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act", "statute": "Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 63572, "end_char": 63581, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 63957, "end_char": 63967, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27", "label": "PROVISION", "start_char": 64220, "end_char": 64230, "source": "regex", "metadata": {"statute": null}}, {"text": "I. G. Karandikar", "label": "OTHER_PERSON", "start_char": 65467, "end_char": 65483, "source": "ner", "metadata": {"in_sentence": "It would appear from the preamble to amending Act 27 of 1970 and the affidavit of Shri I. G. Karandikar, Under Secretary to Government of Maharashtra that efforts to set up joint farming societies contemplated by section 28 of the Act did not bear fruit in spite of the fact that the time for the setting up of those societies was extended."}}, {"text": "section 28", "label": "PROVISION", "start_char": 65593, "end_char": 65603, "source": "regex", "metadata": {"statute": null}}, {"text": "Mah'lrashtra State Farming Corporation", "label": "ORG", "start_char": 66208, "end_char": 66246, "source": "ner", "metadata": {"in_sentence": "The State Gover'.1mero.t, therefore, decided that the cultivation of the land might be continued with the Mah'lrashtra State Farming Corporation on a perma1aent basis."}}, {"text": "section 28", "label": "PROVISION", "start_char": 66532, "end_char": 66542, "source": "regex", "metadata": {"statute": null}}, {"text": "AA in the Act and the other amendments of the principal Act by Act", "label": "STATUTE", "start_char": 66544, "end_char": 66610, "source": "regex", "metadata": {}}, {"text": "section 27", "label": "PROVISION", "start_char": 66972, "end_char": 66982, "source": "regex", "metadata": {"linked_statute_text": "AA in the Act and the other amendments of the principal Act by Act", "statute": "AA in the Act and the other amendments of the principal Act by Act"}}, {"text": "section 28", "label": "PROVISION", "start_char": 68246, "end_char": 68256, "source": "regex", "metadata": {"statute": null}}, {"text": "article 31A", "label": "PROVISION", "start_char": 68279, "end_char": 68290, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 69943, "end_char": 69953, "source": "regex", "metadata": {"statute": null}}, {"text": "article 3", "label": "PROVISION", "start_char": 71168, "end_char": 71177, "source": "regex", "metadata": {"statute": null}}, {"text": "S1", "label": "PROVISION", "start_char": 72427, "end_char": 72429, "source": "regex", "metadata": {"statute": null}}, {"text": "article\n\n31", "label": "PROVISION", "start_char": 73077, "end_char": 73088, "source": "regex", "metadata": {"statute": null}}, {"text": "article 3", "label": "PROVISION", "start_char": 73220, "end_char": 73229, "source": "regex", "metadata": {"statute": null}}, {"text": "article 31", "label": "PROVISION", "start_char": 74244, "end_char": 74254, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_909_913_EN", "year": 1975, "text": "SURYA KANT ROY\n\nIMAMUL HA.I KHAN March 12, 1975\n\n\n[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]\n\nRepresellat!on of the People Act, 1951-Ho/ding an office of profit-Tests. f<Yr determrnallon-Chainnan of a statutory body-Whether an office of profit 1111der Government ..\n\nA /legations of corrupt practice should be proved beyond reasonable doubt.\n\nUnder the Bihar and Orissa Mining Settlement Act, 1920 a Board called the Mines Board of Health may be established to provide for the control and sanitation of any area. The Board consists of members who are elected by mine owners, non-officials selected by the State Government and persons nominated by Government. The Chairman of the Board is appointed by the State Government from among the members of the Board.\n\nThe Boaird is a body corporate.\n\nA fund called \"The Mining Settlement Fund\" is created consisting of sums charged by the Board under the Act from land-owners as also sums allotted from the State revenues as well as sums borrowed by the Board under the Local Authorities Loans Act, grants received from local Authorities, associa. tiom and private persons. The respondent was appointed by the Government as Chairman of the Jharia Mines Board of Health. The .respondent was elected as a member of the State Assembly in the general elections. The election petition of the appellant (the unsuoessful candidate)° against the respondent was dismissed by the High Court.\n\nOn appeal to this Court it was argued that the respondent was disqualified from standing for the election as he held an office of profit under the StatC' Government.\n\nDismissing the appeal,\n\nHELD : ( I) The mere fact that the respondent was appointed as Chairman of the Board by the GovP.rnment would not make him a person holding ain office under the State Government. The fact that the Government and other local authorities might make grants to the Board did not mean that all the funds of the B_oard were Government funds or Government property. The provisions of the Act are enough to establish that the Board is a 'local authority' within the meaning of that expression as defined in cl. (31) of s. 3 of the General Clauses Act, 1897. (911 C; BJ\n\n(2) In determining whether a person is holding an office of profit under the Government the tests laid down by this Court were ( 1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the\n\nremuneration; ( 4) What are the functions of the holder? Does be perform them tor the Government, and (5) Does the Government exercise control over the performance of those functions ? [911 G]\n\nIn the instant case the Government did not pay remuneration to the respondent nor did he perform his functions for the Government. The office held by him was held under a local authority. The holding of an office of profit in it did not bring about a disqualification, even i~ the local authority be under the control of the Government. The control exercised by the Government did not make the Board an organ of the Government nor did it make the respondent a person holding an office under the Government. [912 £..Fl\n\nMaulana Abd11/ Shakur v. Riklzabclumd & Anr. [1958] S.C.R. 387 at 394 and Slifram11rtliy Swami v. Agadi Sanganna Andanappa [1971]\n\n3 S.C.C. 870, followed.\n\nGumilw11111ppa v. Abdul Khaddus A.l.R. 1969 S.C. 744-[1969] 3 S.C.R. 425, referred to.\n\n(3) An allegation of corrupt practice being a serious on~, kacling not merely to the consequence of the election of the successful. candidate bc1g set aside, but also of his being disqualified to sta, nd for election for a certan period, should be proved beyond reasonable drubt. Such p.rool is lacking 111\n\nthis case. [913 CJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1116 cf 1973.\n\nProm the judgment and order dated the 22nd January, 1973 of th~ Patna High Court in Election Petition No. 21 of 1972.\n\nJ. P. Goyal and V. C. Parashar, for the appellant.\n\nD. Goburdhan, for the respondent.\n\nThe Judgment of the Court was rielivercd by .\n\nALAGIRISWAMI, J.-This appeal by one of the unsu~..:c>sful 1:andi .. dates in the election held to the Legislative Assembly of Bihar State .from the Baghmara constituency is against the dismissal of his electio•,11\n\npetition questioning the rc:spoi1dcnt's election by the High Court at Patna.\n\nOnly two questions were argued before us (l) that the respondent was disqualified for standing for the elecfo:m as he held an office of profit under the Government of Bihar, and (2) that he obtained the services of •a Sub-Inspector .of Police for the furtherance of the prospects of his election.\n\nThe facts relating to the first question are these : Under the Bihar .and Orissa Mining Settlement Act, 1920 a Board called the Mines B'Jard of Health may be established to provide for the control and sanitation of any area within which persons employed in a mine reside and for the prevention therein of the out break and spread of epidemic diseases. Before the area is declared to be a mining settlement for the purposes of the Act certain prescribed formalities\n\nlike receiving objections etc. have to be observed.\n\nThe Board is a body corporate having prepetual succession and a common seal with power to hold and acquire property. It consists of not less than seven -and not more than eleven members of whom not less than two and not more than four are elected by owners of mines within the mining settlement, three non-officials selected by the State Government and tW\"<) or mdre members but not exceeding four nominated by the State Government. The Chairman of the Board is to be appointed by the State Government from among the members of the Board.\n\nA fund called \"The Mining SettleU?ent Fund\" is formed for every mining settlement and the fund vests m the Board.\n\nThe fund consists of sums •charged by the Board under the Act from land owners etc. as also sums allotted to the Board from the State revenues; sums borrowed by the Board under the Local Authorities Loans Act !!rants received from I:ocal. Authorities, associations and private prsons etc.\n\nThe Board appomts Health Officers as well as Sanitary Inspectors.\n\nThe Board can impose taxes like latrine tax and also make yearly assessment.\n\nThere are certain powers conferred on the State Government\n\nH -\n\ns. K. ROY v. I. H. KHAN ( A/agiriswami, I.) 9 11\n\nunder the Act but they are no more than powers conferred on State Governments in respect of various local bodies. The respondent was appointed by the Government as the Chairman of the Jharia Mines Board of Health.\n\nWe argee with the learned Judge of the High Court that it is difficult to accept the argument that the Board is wholly under the control of the State Government in all its functions. The Board levies taxes and -other assessments and ha& got its own funds.\n\nThe fact that the Government and other local authorities might make graats to the Board does not mean that all the funds of the Board are Government\n\nfund~ or Government property. The provisions we have set out above are enough to establish that the Board is a 'local •authority' within the meaning of that expression as defined in clause (31) of section 3 of the ·\n\nGeneral Clauses Act, 1897. Indeed this position does not seem to have been disputed by the petitioner before the High Court in the course of his argument. We do not, therefore, think that the mere fact that the respondent was appointed as Chairma'.1 of the Board by the Government would make him a person holding •an office under the State Government.\n\nWe may in this connection refer to certain decisions of this Court.\n\nIn Maulana Abdul Shakur v. Rikhabchand & Anr.( 1) this Court held :\n\n\"The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discertion and payment from out of Government revenues are important factors in determin- ing whether that person is holding oan office of profit under the Government.\" We have alre'idy pointed out that in this case the payments to the respondent are not from out of the Government revenues. ·\n\nIn Shivamurthy Swami v. Agadi Sanganna Andanappa( 2) .this Court pointed out : · · ·\n\n\" ..... the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached . . . This Court in several decisions had laid down the tests tor finaing out whether an office in question is an office under a Government and whether it is an office\n\nof profit. Those tests are : ( 1) Whether the Government makes the appointment; (2) Whether the Government has right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; ( 4) What are the f u11ctiv1;1 of the holder? Does he perform them for the Government, and (5) Does the Government exercise anrcontrol over the performance of those fuctions ?\"\n\nHere again it is to be pointed out that the Government does not pay the remuneration nor does the holder perform his functions for the Government.\n\nTo hold otherwise would be to hold that local\n\n(1) [1958] S.C.R. 387 at 394.\n\n\nbodies like Municipal Councils perform their functh:ms for the Gov.ernt\\ ment though in one sense the functions they perform are governmental functions.\n\nThe decision of this Court in Gurushantappa v. Abdul Khaddus( 1), which was also relied upon by the High Court, may be usefully referred to. It was there observed:\n\n\"Thus, in the case of election as President -.:ir Vice-President, the disqualification arises even if the candidate is holding an office of profit under local or any other authority under the C'Ontrol of the Central Government or the State Govenment, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the c0ntrol of the Government and not directly unde! any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the Government.\n\nThe mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification co; nes into existence for being elected as the President or the Vice-President.\"\n\nThe office held by the respondent is held under a local authority.\n\nThe holding of an office of profit in it does not bring about a disqualification even if that local authority be under the control of the Government.\n\nThe mere control of Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualifiy that officer from being a candidate for election as a member of the Legislature.\n\nTherefore, the control exercised by the Government over the Board in this case does not make the Board an organ of the Government nor does it mah the respondent a person holding an office under the Government.\n\nIt is, therefore, unnecessary to go into the question whether the office held by the respondent was an office of profit, though we may indicate that on the evidence available in this case we have come to the conclusion that it is not an office ofl profit. We are not setting out the evidence at length only because it is unnecessary for the purpose of this case.\n\nAs regards the 2nd question the allegation of the appellant was that the respondent taking advantage of his position as a former Cabinet Minister of the State of Bihar bad procured the services of the •officerin-charge of C'has police station in arranging and holding his election meeting on 20th February, 1972 within the premises of the Chas police station and this was a corrupt practice within the meaning of sub-s. (7) ----\n\n\ns. K. ROY v, I. H. KHAN (Alagiriswami, J.) 913\n\nof s. 123 of the Representati'on of the People Act.\n\nAccording to the re6pondent fae election meeting was held in the vacartt space on the southern side of the compound wall of the police station. The evidence relied upon by the appellant for providing his charge WCi'C his own and that of two of his co-villagers.\n\nThe appellant t.Vas not an eye witness of this meeting and his evidence was pure hearsay.\n\nThe person who is said to have informed him was not examined.\n\nThe evidence of P. \\\\'s. 1 and 2 was not accepted by the High Court.\n\nThe police officer concerned, who was examined as R.W. 8, as well as the respondent (R.\\V. 10) have denied the allegation.\n\nAfter a careful examinafron on all the evidence the High Court held this charge not proved. We have gone through the evidence and see no reason to differ from the High Court on this point. '\n\nAn allegation of corupt practice being a serious one leading not merely to the consequence of the election of the successful candidate being set aside but also of his being disqualified to stand for election for a certain period should be proved beyond reasonable doubt and we fine! such proof lacking in this case.\n\nThe appeal is dismissed with costs.\n\nP.B.R.\n\nAppeal dismil\\>cd.\n\n12-514SC!/75", "total_entities": 23, "entities": [{"text": "ROY\n\nIMAMUL HA.I KHAN", "label": "RESPONDENT", "start_char": 11, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "IMAMUL HAI KHAN", "offset_not_found": false}}, {"text": "March 12, 1975", "label": "DATE", "start_char": 33, "end_char": 47, "source": "ner", "metadata": {"in_sentence": "SURYA KANT ROY\n\nIMAMUL HA.I KHAN March 12, 1975\n\n[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 51, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 71, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "People Act, 1951", "label": "STATUTE", "start_char": 115, "end_char": 131, "source": "regex", "metadata": {}}, {"text": "Bihar and Orissa Mining Settlement Act, 1920", "label": "STATUTE", "start_char": 352, "end_char": 396, "source": "regex", "metadata": {}}, {"text": "Jharia Mines Board of Health", "label": "ORG", "start_char": 1181, "end_char": 1209, "source": "ner", "metadata": {"in_sentence": "The respondent was appointed by the Government as Chairman of the Jharia Mines Board of Health."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2126, "end_char": 2130, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 2138, "end_char": 2163, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "[1969] 3 S.C.R. 425", "label": "CASE_CITATION", "start_char": 3388, "end_char": 3407, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3751, "end_char": 3779, "source": "ner", "metadata": {"in_sentence": "913 CJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "J. P. Goyal", "label": "OTHER_PERSON", "start_char": 3933, "end_char": 3944, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal and V. C. Parashar, for the appellant."}}, {"text": "V. C. Parashar", "label": "OTHER_PERSON", "start_char": 3949, "end_char": 3963, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal and V. C. Parashar, for the appellant."}}, {"text": "D. Goburdhan", "label": "LAWYER", "start_char": 3985, "end_char": 3997, "source": "ner", "metadata": {"in_sentence": "D. Goburdhan, for the respondent."}}, {"text": "ALAGIRISWAMI", "label": "JUDGE", "start_char": 4067, "end_char": 4079, "source": "ner", "metadata": {"in_sentence": "ALAGIRISWAMI, J.-This appeal by one of the unsu~..:c>sful 1:andi .. dates in the election held to the Legislative Assembly of Bihar State .from the Baghmara constituency is against the dismissal of his electio•,11\n\npetition questioning the rc:spoi1dcnt's election by the High Court at Patna."}}, {"text": "Government of Bihar", "label": "ORG", "start_char": 4513, "end_char": 4532, "source": "ner", "metadata": {"in_sentence": "Only two questions were argued before us (l) that the respondent was disqualified for standing for the elecfo:m as he held an office of profit under the Government of Bihar, and (2) that he obtained the services of •a Sub-Inspector .of Police for the furtherance of the prospects of his election."}}, {"text": "Orissa Mining Settlement Act, 1920", "label": "STATUTE", "start_char": 4732, "end_char": 4766, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 7201, "end_char": 7210, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 7221, "end_char": 7246, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bihar", "label": "GPE", "start_char": 11897, "end_char": 11902, "source": "ner", "metadata": {"in_sentence": "As regards the 2nd question the allegation of the appellant was that the respondent taking advantage of his position as a former Cabinet Minister of the State of Bihar bad procured the services of the •officerin-charge of C'has police station in arranging and holding his election meeting on 20th February, 1972 within the premises of the Chas police station and this was a corrupt practice within the meaning of sub-s. (7) ----\n\ns. K. ROY v, I. H. KHAN (Alagiriswami, J.) 913\n\nof s. 123 of the Representati'on of the People Act."}}, {"text": "20th February, 1972", "label": "DATE", "start_char": 12027, "end_char": 12046, "source": "ner", "metadata": {"in_sentence": "As regards the 2nd question the allegation of the appellant was that the respondent taking advantage of his position as a former Cabinet Minister of the State of Bihar bad procured the services of the •officerin-charge of C'has police station in arranging and holding his election meeting on 20th February, 1972 within the premises of the Chas police station and this was a corrupt practice within the meaning of sub-s. (7) ----\n\ns. K. ROY v, I. H. KHAN (Alagiriswami, J.) 913\n\nof s. 123 of the Representati'on of the People Act."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 12217, "end_char": 12223, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1 and 2", "label": "PROVISION", "start_char": 12706, "end_char": 12716, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_914_916_EN", "year": 1975, "text": "MUNICIPAL COMMITTEE, AMR!T~A'.fl\n\nHAZARA SINGH\n\nMarch 12, 1975\n\n[A. N. RAY, CJ., K. K. MATHEW AND V. R. KRISHNA IYER, JJ.]\n\nPractice-Criminal appeal under Art. 136 of C01:stitution--lmpropcr i111oca1io11.\n\nA 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.\n\nThe 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.\n\nAn appeal against acquittal was dismissed by the High Court.\n\nDismising th~ appeal \\o this Court,\n\nHELD : ln the Malwa Cooperatii'e Milk Union Ltd.\n\nv. 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.\n\nBut 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.\n\nE 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.\n\nNaunit Lal, for the appellant.\n\nThe Judgment of the Court was delivered by F\n\nKRISHNA 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.\n\nThe facts\n\n.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\n\nMUNICIPAL COMMITTEE \\I, IMZARA SINGH (Krishna Iyer,!.) 915\n\nAdulteration 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.\n\nThe Municipal Committee pursued the matter to the High Court in appeal.\n\nBut a Division Bench of that Court dismissed it in limine, presumably as t.oo•trivial for an appeal against acquittal.\n\nHowever, 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'.\n\nThis latter representation itself is suggestive of the absence of seriousness surroundi1,1g this particular case.\n\nApart 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.\n\nThis 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.\n\nIt 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.\n\nHe was perhaps not right in saying so.\n\nAnyway, 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.\n\nIndeed, 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.\n\nThe 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.\n\nCertainly, the revisional power of the High Court is reserved for setting right miscarriage of justice, not for berag invoked by private persecutors. Such\n\nwas 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.\n\nTo 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\n\nment.\n\nIndeed, the Kerala case cited before us by cou'asel viz., State of Kerala v. Vasudevan Nair(2 ) itself shows that such distortion of the\n\npasage in the judgmeiat did not and could not pass muster. When\n\n(1) Cri. As Nos. 235 & 236of1964, decided on 14-8-1967.\n\n(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,\n\nSUPREME COURT REPORTS (1975] 3 s .. C.R.\n\npressed 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 :\n\n\"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.\n\nDeclaration of law by that Court even -if it be only by the way has to be respected.\n\nBut 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.\n\nSeveral 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\n\n549) and Prakash Chandra Pathak v. State of Uttar Pradesh\n\n(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.\"\n\n* * \"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.\n\nThe disadvautages of .the resulting unpredictability, uncertainty and impossibility of arriving at fair •and consistent decisions are great.\"\n\nIt 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.\n\nThis appeal was ill-advised, misconceived and unnecessary and merits dismissal.\n\n\\l.P.S.\n\nAppeal dismissed.", "total_entities": 19, "entities": [{"text": "MUNICIPAL COMMITTEE, AMR!T~A", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL COMMITTEE, AMRITSAR", "offset_not_found": false}}, {"text": "fl\n\nHAZARA SINGH", "label": "RESPONDENT", "start_char": 30, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "HAZARA SINGH", "offset_not_found": false}}, {"text": "March 12, 1975", "label": "DATE", "start_char": 48, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "MUNICIPAL COMMITTEE, AMR!T~A'.fl\n\nHAZARA SINGH\n\nMarch 12, 1975\n\n[A. N. RAY, CJ.,"}}, {"text": "A. N. RAY, CJ.", "label": "JUDGE", "start_char": 65, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 81, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 155, "end_char": 163, "source": "regex", "metadata": {"statute": null}}, {"text": "s.1967", "label": "PROVISION", "start_char": 637, "end_char": 643, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 1437, "end_char": 1445, "source": "regex", "metadata": {"statute": null}}, {"text": "F\n\nKRISHNA IYER", "label": "JUDGE", "start_char": 1884, "end_char": 1899, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by F\n\nKRISHNA 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."}}, {"text": "s.7", "label": "PROVISION", "start_char": 2740, "end_char": 2743, "source": "regex", "metadata": {"statute": null}}, {"text": "s.16(1)", "label": "PROVISION", "start_char": 2748, "end_char": 2755, "source": "regex", "metadata": {"statute": null}}, {"text": "Malwa Cooperative Milk Union Ltd.", "label": "ORG", "start_char": 4478, "end_char": 4511, "source": "ner", "metadata": {"in_sentence": "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)."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 4913, "end_char": 4925, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Kerala", "label": "GPE", "start_char": 5896, "end_char": 5902, "source": "ner", "metadata": {"in_sentence": "Indeed, the Kerala case cited before us by cou'asel viz.,"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 6654, "end_char": 6667, "source": "ner", "metadata": {"in_sentence": "The law of food adulteration, as also the right approach to decisions of this Court, have been set out correctly there :\n\n\"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."}}, {"text": "Art. 141", "label": "PROVISION", "start_char": 6897, "end_char": 6905, "source": "regex", "metadata": {"statute": null}}, {"text": "AIR 1960 SC 195", "label": "CASE_CITATION", "start_char": 7177, "end_char": 7192, "source": "regex", "metadata": {}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 7772, "end_char": 7780, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_917_921_EN", "year": 1975, "text": ".. c\n\nPHOOL KUMAR\n\nDELHI ADMINISTRATION March 13, 1975\n\nIA. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]\n\nPenal 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.\n\nThe 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.\n\nHis 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.\n\nThe High Court dismissed his appeal. ·\n\nOn 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.\n\nDismissing 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.\n\nAny 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.\n\n[920 F-G; CJ\n\n(2) The le.rm 'offender' in s. 397 is confined to the offender who uses. any deadly weai1on.\n\nThe 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] .\n\n(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\n\npunishment 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.\n\nBut 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\n\nGol'ind Dipali More v. State A.I.R. 1956 i3ombay, 353, approved.\n\nChandra 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.\n\nThe view taken in Stale v. Chand Singh and another I.LR. [1970] 2 Punjab & Har\\'ana. 108. is incorrect.\n\nCRIMINAL APPELLATE JURISDICTION: Cr!. Appeal No. 62 of 1971.\n\nAppeal 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.\n\nSUPREME COURT REPORTS [19751 3 s., c.R.\n\nR. Bana, for the appellant.\n\nV. C. Mahajan and M .. N. Shroff, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, 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.\n\nThe 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.\n\nA concurrent sentence olC 6 months was also imposed for his conviction under section 342 of tl'ie Penal Code.\n\nThe Delhi High Court maintained his convictions and D sentences aind dismissed his appeal.\n\nHe has approached this Court by special leave.\n\nMr. 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.\n\nAfter 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.\n\nThe 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\n\na knife while Ram Kmnar had. a small gun in his hand. The for?J.er asked P.W. 13 to hand over the keys.\n\nOn being told that the keys were with P.W .. 16 the/ appellant asked him to hand over the keys.\n\nTo 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\n\ngetting the clue from the absconding accused Sube Singh.\n\nSuffice 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.\n\nThe 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 .\n\nthe 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.\n\nTI1erc was absolutely no scope for any kind of manipulation in' the\n\nmattr 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.\n\nThe 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.\n\nSection 392 of the Penal Code provides :\n\n ''.Wftver commits robbery shall be punished with rigor-· ous 1mpnsonment or a term which may extend to ten years,\n\nad shall also hable to fine; and, if the robbery be comtted on the highway between sun.set and sunrise, the im-\n\nnsoruhent may be extended to fourteen years.\"\n\nThe >.entence of imprisonment to be awarded under section 392 n\n\nnot 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-\n\n(!) I.L.R. [1970] 2 Punjab & Haryana, tos'.\n\nSUPRE]\\11-\\ COURT REPORTS l1975l 3 s.c.R.\n\nson 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\n\noffendr 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.\n\nIn 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.\n\nTo be. more precise from the evidence of P.W. 16 \"Phool Kumar had a knife in his hand\".\n\nHe was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them.\n\nAny 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.\n\nSection 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 ·\n\nof 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.\n\nBut 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.\n\nThere 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.\n\nIf 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.\n\nIn the cases of Chandra Nath v.\n\nEmperor(!); Nagar Singh v.\n\nEmperor( 2 ) and lnder Siii'gh v.\n\n(I) A.LR. 1932, Oudh. 103.\n\n(2) A.T.R. 1933. Lahore. 35.\n\nEmperor( 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.\n\nJ. C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v.\n\nStatee) 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.\n\nIn 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.\n\nFor 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.\n\nThe appeal accordingly fails and is dis-. missed.\n\nP.B.R.\n\n(I) A .T.R. 1934, Lahore, 522.\n\n(2) A.T.R. 1956, Bombay, 353.\n\n(3) I. L. R. (1970) 2 Punjab & Haryana 108.\n\nAppeal dismissed", "total_entities": 68, "entities": [{"text": "c\n\nPHOOL KUMAR", "label": "PETITIONER", "start_char": 3, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "c\n\nPHOOL KUMAR", "offset_not_found": false}}, {"text": "DELHI ADMINISTRATION", "label": "RESPONDENT", "start_char": 19, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "DELHI ADMINISTRATION", "offset_not_found": false}}, {"text": "March 13, 1975", "label": "DATE", "start_char": 40, "end_char": 54, "source": "ner", "metadata": {"in_sentence": ".. c\n\nPHOOL KUMAR\n\nDELHI ADMINISTRATION March 13, 1975\n\nIA."}}, {"text": "IA. ALAGIRISWAMI", "label": "JUDGE", "start_char": 56, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 77, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 99, "end_char": 109, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ss. 397 and 398", "label": "PROVISION", "start_char": 110, "end_char": 125, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 166, "end_char": 172, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 398", "label": "PROVISION", "start_char": 214, "end_char": 220, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 397 read with 342", "label": "PROVISION", "start_char": 569, "end_char": 590, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 392", "label": "PROVISION", "start_char": 816, "end_char": 822, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 1364, "end_char": 1370, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 1664, "end_char": 1670, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 1822, "end_char": 1828, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 2106, "end_char": 2112, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 398", "label": "PROVISION", "start_char": 2314, "end_char": 2320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 2455, "end_char": 2461, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 2558, "end_char": 2564, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 398", "label": "PROVISION", "start_char": 2583, "end_char": 2589, "source": "regex", "metadata": {"statute": null}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 3264, "end_char": 3277, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and M .. N. Shroff, for the respondent."}}, {"text": "M .. N. Shroff", "label": "LAWYER", "start_char": 3282, "end_char": 3296, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and M .. N. Shroff, for the respondent."}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 3363, "end_char": 3371, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nUNTWALIA, 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:."}}, {"text": "amed Sube Singh", "label": "OTHER_PERSON", "start_char": 3853, "end_char": 3868, "source": "ner", "metadata": {"in_sentence": "On.e of the culprits, amed Sube Singh,."}}, {"text": "Phool Kumar", "label": "PETITIONER", "start_char": 3915, "end_char": 3926, "source": "ner", "metadata": {"in_sentence": "are (1) Phool Kumar, (2) Ram Kumar and (3) Dharampal.", "canonical_name": "c\n\nPHOOL KUMAR"}}, {"text": "Ram Kumar", "label": "PETITIONER", "start_char": 3932, "end_char": 3941, "source": "ner", "metadata": {"in_sentence": "are (1) Phool Kumar, (2) Ram Kumar and (3) Dharampal.", "canonical_name": "Ram K11mar"}}, {"text": "Dharampal", "label": "OTHER_PERSON", "start_char": 3950, "end_char": 3959, "source": "ner", "metadata": {"in_sentence": "are (1) Phool Kumar, (2) Ram Kumar and (3) Dharampal."}}, {"text": "Phool Kumar", "label": "PETITIONER", "start_char": 4147, "end_char": 4158, "source": "ner", "metadata": {"in_sentence": "The only person convicted at the said trial was appellant Phool Kumar.", "canonical_name": "c\n\nPHOOL KUMAR"}}, {"text": "s. 397", "label": "PROVISION", "start_char": 4188, "end_char": 4194, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 4202, "end_char": 4212, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 342", "label": "PROVISION", "start_char": 4351, "end_char": 4362, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 4372, "end_char": 4382, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 4389, "end_char": 4405, "source": "ner", "metadata": {"in_sentence": "The Delhi High Court maintained his convictions and D sentences aind dismissed his appeal."}}, {"text": "R. Bana", "label": "OTHER_PERSON", "start_char": 4529, "end_char": 4536, "source": "ner", "metadata": {"in_sentence": "Mr. R. Bana, learned counsel for the appellant took pains to submit as many as 8 points in support of this appeal."}}, {"text": "s1", "label": "PROVISION", "start_char": 4650, "end_char": 4652, "source": "regex", "metadata": {"statute": null}}, {"text": "Sham Lal", "label": "WITNESS", "start_char": 5092, "end_char": 5100, "source": "ner", "metadata": {"in_sentence": "The two eye witnesses to the oceurrence are P.W. l3 Sham Lal and P.W. 16 Ram Sewan."}}, {"text": "Ram Sewan", "label": "WITNESS", "start_char": 5113, "end_char": 5122, "source": "ner", "metadata": {"in_sentence": "The two eye witnesses to the oceurrence are P.W. l3 Sham Lal and P.W. 16 Ram Sewan."}}, {"text": "Ram Kumar", "label": "PETITIONER", "start_char": 5489, "end_char": 5498, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Ram K11mar"}}, {"text": "Ram Kmnar", "label": "PETITIONER", "start_char": 5574, "end_char": 5583, "source": "ner", "metadata": {"in_sentence": "Phool Kumar was armed with\n\na knife while Ram Kmnar had.", "canonical_name": "Ram K11mar"}}, {"text": "Ram Kumar", "label": "WITNESS", "start_char": 5791, "end_char": 5800, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Sube Singh", "label": "OTHER_PERSON", "start_char": 6366, "end_char": 6376, "source": "ner", "metadata": {"in_sentence": "the apprehending of the three culprits after\n\ngetting the clue from the absconding accused Sube Singh."}}, {"text": "section 342", "label": "PROVISION", "start_char": 8239, "end_char": 8250, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8258, "end_char": 8268, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 397", "label": "PROVISION", "start_char": 8393, "end_char": 8404, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8412, "end_char": 8422, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 392", "label": "PROVISION", "start_char": 8477, "end_char": 8488, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Punjab & Haryana", "label": "COURT", "start_char": 8677, "end_char": 8707, "source": "ner", "metadata": {"in_sentence": "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)."}}, {"text": "Section 392", "label": "PROVISION", "start_char": 8844, "end_char": 8855, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8863, "end_char": 8873, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 392", "label": "PROVISION", "start_char": 9212, "end_char": 9223, "source": "regex", "metadata": {"statute": null}}, {"text": "section 397", "label": "PROVISION", "start_char": 9518, "end_char": 9529, "source": "regex", "metadata": {"statute": null}}, {"text": "section 39", "label": "PROVISION", "start_char": 9611, "end_char": 9621, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram K11mar", "label": "PETITIONER", "start_char": 10050, "end_char": 10060, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Ram K11mar"}}, {"text": "Phool Kumar", "label": "WITNESS", "start_char": 10366, "end_char": 10377, "source": "ner", "metadata": {"in_sentence": "more precise from the evidence of P.W. 16 \"Phool Kumar had a knife in his hand\"."}}, {"text": "section 397", "label": "PROVISION", "start_char": 10676, "end_char": 10687, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 10695, "end_char": 10705, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 398", "label": "PROVISION", "start_char": 10708, "end_char": 10719, "source": "regex", "metadata": {"statute": null}}, {"text": "section 398", "label": "PROVISION", "start_char": 11133, "end_char": 11144, "source": "regex", "metadata": {"statute": null}}, {"text": "section 397", "label": "PROVISION", "start_char": 11280, "end_char": 11291, "source": "regex", "metadata": {"statute": null}}, {"text": "section 397", "label": "PROVISION", "start_char": 11461, "end_char": 11472, "source": "regex", "metadata": {"statute": null}}, {"text": "section 398", "label": "PROVISION", "start_char": 11491, "end_char": 11502, "source": "regex", "metadata": {"statute": null}}, {"text": "section 397", "label": "PROVISION", "start_char": 12762, "end_char": 12773, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 12781, "end_char": 12791, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "J. C. Shah", "label": "JUDGE", "start_char": 12794, "end_char": 12804, "source": "ner", "metadata": {"in_sentence": "J. C. Shah and Vyas, JJ."}}, {"text": "Vyas", "label": "JUDGE", "start_char": 12809, "end_char": 12813, "source": "ner", "metadata": {"in_sentence": "J. C. Shah and Vyas, JJ."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 12826, "end_char": 12843, "source": "ner", "metadata": {"in_sentence": "of the Bombay High Court have said in the case of Govind Dipaji More v.\n\nStatee) 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\"."}}, {"text": "section 397", "label": "PROVISION", "start_char": 13119, "end_char": 13130, "source": "regex", "metadata": {"statute": null}}, {"text": "Chand Singh", "label": "OTHER_PERSON", "start_char": 13385, "end_char": 13396, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "A.T.R. 1956, Bombay, 353", "label": "RESPONDENT", "start_char": 13679, "end_char": 13703, "source": "ner", "metadata": {"in_sentence": "(2) A.T.R. 1956, Bombay, 353."}}]}
{"document_id": "1975_3_922_926_EN", "year": 1975, "text": "V. K. SHARMA v.\n\nTHE STATE (DELHI ADMINISTRATION) March 13, 1975\n\n(A. ALAGIR!SWAMI AND N. L. UNTWALIA, JJ.]\n\nSection, 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. ·\n\nThe 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\n\nCede bv the Trial Court and was sentenced to rigorous imprisonment for 2!\n\nC 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.\n\nThe appellant demanded a sum of Rs. 100 as bribe from au owner of a Ration Depot.\n\nA 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.\n\nBoth the Courts below rejected the explanation • untrue.\n\nThe counsel for the appellant contended :\n\n(1) That the sanction given by P. W:Iyer iri this case was invalid an'.! not in nccordancc with section 6 of the Act.\n\n(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.\n\nWhatever was done by E him 11<1> in contrnvention of section 5A of the Ac.t.\n\n(}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.\n\nHELD : While dismissing the appeal,\n\nThe 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\n\nHELD FURTHER : Even if the search is assumed to be illegal it is of no consequence in this case.\n\nThe 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\n\nwih 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.\n\nThere is no justification to interfere with the order of the High Court. [925 D, E-G]\n\nCRDHNAL APPEU.jATE JuR1so1cnoN : Criminal Appeal No. 73 of 1971. .\n\nAppeal by Special leave from the Judgment and Order dated the • September, 1970 of the Delhi High Court r,1 Criminal Appeal No. 'f 1968.\n\nv. K. SHARMA v. DELHI ADMN. (Vntwalia, J.) 923\n\nA K. B. Ro.h(agi, for the appellant.\n\n5. N. Anand and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, J.\n\nThe 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.\n\nThe Trial Judge. sentenced the appellant u1.1der each count to undergo rigorous imprisonment for : 1 years.\n\nSentences to run concurrently.\n\nHe was also sentenced to P'JY a fine of Rs. 1,000 /- under section 5 (1) ( d) of the Act.\n\nThe Delhi High Court dismissed the appellant's appeal subject to the reduction in his sentences.\n\nThe 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\n\nRs. 500/-.\n\nThe 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.\n\nAt the releva!at time he was working as Inspector in the Rationing Department.\n\nP.W.3 Madan Lal was the owner of Rationing Depot in Gandhi Nagm; Delhi.\n\nHis 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.\n\nThe appellant came to the said witness on\n\n1. 7 .1967 and demanded the payment of Rs. 100 /- that very day.\n\nMadan 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.\n\nHe 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.\n\nMadan Lal proceeded to the appellant's office with P.W.5 Agya Ram Batra and P.W.8 Deputy Lal Telwar.\n\nHe handed over the amount of Rs. 80/ to the appellant saying_ that he would pay Rs. 20/- later on.\n\nOn the giving of signal by Deputy Lal, Arora arrived and recovered the currency notes from the pocket of the appellant's bush-shirt.\n\nThe amount recovered from the appellant's bush-shirt consisted of the same 8 currency notes which -had been earlier initialled by Arora.\n\nAfter 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.\n\nJhe 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.\n\nHe gave an interesting and curious explanation of the receipt of Rs. 80/- by him from Madan Lal.\n\nThe two courts below relying upon the evidence of Prose.cuton Witnesses Madan Lal, Arora, Agya Ram and Deputy. Lal and re3ecttng\n\nthe explana\\ion of the appellant as untrue have convicted and sentenc .cd him as stated above.\n\n~.Ir. K. B. Rohtagi, learned counsel for the appellant made the following submissions. to press for the acquittal of his client :\n\n(1) That the sanction given by P. W. Iyer in this case was invalid and not in accordance with section 6 of the Act.\n\n(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.\n\nWhatever was done by him C was in contravention of section SA of the Act.\n\n(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.\n\nThe High Court has elaborately and fully dealt with the submissions made on behalf of the appellant many of which were repeated in this Court.\n\nWe see no justification to interfere with the order of the High Court.\n\nAs already stated the appellant was a quasi-permanent Lower Division Clerk o~ the Central Secretariat Clerical Service.\n\nHe was !Jome in the cadre of Community Development and Co-o:::ieration.\n\nP.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.\n\nThere was no dispute or debate in .that regard.\n\nNo question was put to him in his cross-examinafron to challenge his authority.\n\nBut 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.\n\nThe 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.\n\nWe 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.\n\nWhat 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.\n\nOn 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\n\nv. K. SHAR~IA I\". DHHI AD~IN. (U111walia, .l.) 925.\n\nthe <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.\n\nThe 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.\n\nThe 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.\n\nThat being so P.W. lyer in our judgment was the competent authority to accord sanction for the prosecution of the appellant.\n\nThe second submission made on behalf of the appellant is devoid of any substance.\n\nAfter 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.\n\nThe investigati'on within the meaning of section SA ot the Act started thereafter.\n\nNo 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.\n\nIt 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.\n\nEven assuming it to be illegal it is of no consequence in this case.\n\nOn search the 8 notes of Rs. 10/- each were recovered ..\n\nThe recovery o( the notes is admitted by the appellant.\n\nThe 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.\n\nWe may make a slight clarification here.\n\nThe, 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\n\n(I).\n\nThe 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.\n\nOn 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.\n\nThe explanation given by the appellant even on the test of pre-ponderer, ce of probability was not only unsatisfactory arid unacceptable but untrue.\n\nIn 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.\n\nAlmost an identical case on the point is the decision of a Constitution Bench of this Court\n\nin 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.\n\nA 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.\n\nWe 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.\n\nIn 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. ·\n\nFor the reasons stated above, we find no substance in the appeal and maintain the order of conviction and sentence passed against the appellant.\n\nP.H.P.\n\n(l) [1960] (2) S.C.R. 59\n\n(2) [1966] (3) S.C.R. 736.\n\nAppeal dismis_; cd.", "total_entities": 87, "entities": [{"text": "V. K. SHARMA", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "V. K. SHARMA", "offset_not_found": false}}, {"text": "THE STATE (DELHI ADMINISTRATION", "label": "RESPONDENT", "start_char": 17, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "THE STATE (DELHI ADMINISTRATION)", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 87, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Prevelllion of Corruption Act", "label": "STATUTE", "start_char": 144, "end_char": 173, "source": "regex", "metadata": {}}, {"text": "Section 161", "label": "PROVISION", "start_char": 175, "end_char": 186, "source": "regex", "metadata": {"linked_statute_text": "Prevelllion of Corruption Act", "statute": "Prevelllion of Corruption Act"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 217, "end_char": 226, "source": "regex", "metadata": {"linked_statute_text": "Prevelllion of Corruption Act", "statute": "Prevelllion of Corruption Act"}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 407, "end_char": 419, "source": "regex", "metadata": {"linked_statute_text": "Prevelllion of Corruption Act", "statute": "Prevelllion of Corruption Act"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 428, "end_char": 456, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5", "label": "PROVISION", "start_char": 467, "end_char": 476, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Corruption Act", "statute": "Prevention of Corruption Act"}}, {"text": "section 161", "label": "PROVISION", "start_char": 495, "end_char": 506, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Corruption Act", "statute": "Prevention of Corruption Act"}}, {"text": "Delhi High Co11rt", "label": "COURT", "start_char": 665, "end_char": 682, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "section 6", "label": "PROVISION", "start_char": 1536, "end_char": 1545, "source": "regex", "metadata": {"statute": null}}, {"text": "P.W. Arora", "label": "WITNESS", "start_char": 1570, "end_char": 1580, "source": "ner", "metadata": {"in_sentence": "(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."}}, {"text": "section 5A", "label": "PROVISION", "start_char": 1747, "end_char": 1757, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(1)(d)", "label": "PROVISION", "start_char": 1810, "end_char": 1825, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 1840, "end_char": 1851, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 1860, "end_char": 1870, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 4", "label": "PROVISION", "start_char": 2491, "end_char": 2500, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 2653, "end_char": 2662, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 2723, "end_char": 2732, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 2806, "end_char": 2816, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 5", "label": "PROVISION", "start_char": 2840, "end_char": 2849, "source": "regex", "metadata": {"statute": null}}, {"text": "CRDHNAL APPEU.jATE JuR1so1cnoN", "label": "PETITIONER", "start_char": 3055, "end_char": 3085, "source": "ner", "metadata": {"in_sentence": "925 D, E-G]\n\nCRDHNAL APPEU.jATE JuR1so1cnoN : Criminal Appeal No."}}, {"text": "K. B. Ro.h(agi,", "label": "LAWYER", "start_char": 3311, "end_char": 3326, "source": "ner", "metadata": {"in_sentence": "Vntwalia, J.) 923\n\nA K. B. Ro.h(agi, for the appellant.", "canonical_name": "K. B. Ro.h(agi,"}}, {"text": "N. Anand", "label": "OTHER_PERSON", "start_char": 3350, "end_char": 3358, "source": "ner", "metadata": {"in_sentence": "N. Anand and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3363, "end_char": 3377, "source": "ner", "metadata": {"in_sentence": "N. Anand and R. N. Sachthey, for the respondent."}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 3444, "end_char": 3452, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nUNTWALIA, J.\n\nThe 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."}}, {"text": "section 5", "label": "PROVISION", "start_char": 3529, "end_char": 3538, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 3550, "end_char": 3584, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5Q", "label": "PROVISION", "start_char": 3623, "end_char": 3633, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Corruption Act, 1947", "statute": "the Prevention of Corruption Act, 1947"}}, {"text": "section 161", "label": "PROVISION", "start_char": 3649, "end_char": 3660, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Corruption Act, 1947", "statute": "the Prevention of Corruption Act, 1947"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3668, "end_char": 3685, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 5", "label": "PROVISION", "start_char": 3888, "end_char": 3897, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Corruption Act, 1947", "statute": "the Prevention of Corruption Act, 1947"}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 3924, "end_char": 3940, "source": "ner", "metadata": {"in_sentence": "The Delhi High Court dismissed the appellant's appeal subject to the reduction in his sentences."}}, {"text": "Madan Lal", "label": "WITNESS", "start_char": 4470, "end_char": 4479, "source": "ner", "metadata": {"in_sentence": "P.W.3 Madan Lal was the owner of Rationing Depot in Gandhi Nagm; Delhi."}}, {"text": "1. 7 .1967", "label": "DATE", "start_char": 4728, "end_char": 4738, "source": "ner", "metadata": {"in_sentence": "The appellant came to the said witness on\n\n1."}}, {"text": "Madan Lal", "label": "PETITIONER", "start_char": 4794, "end_char": 4803, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Mad•an Lal"}}, {"text": "Gian Chand Sharma", "label": "WITNESS", "start_char": 4823, "end_char": 4840, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "P.W. S.L. Arora", "label": "WITNESS", "start_char": 4940, "end_char": 4955, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Rationinm", "label": "GPE", "start_char": 4981, "end_char": 4990, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Mad•an Lal", "label": "PETITIONER", "start_char": 5066, "end_char": 5076, "source": "ner", "metadata": {"in_sentence": "He after recording the statement of Mad•an Lal, initialled 8 currency i10tes of Rs.", "canonical_name": "Mad•an Lal"}}, {"text": "Arora", "label": "OTHER_PERSON", "start_char": 5164, "end_char": 5169, "source": "ner", "metadata": {"in_sentence": "Shri Arora instructed Madan Lal to go to the appellant's office aldagwith two witnesses."}}, {"text": "Madan Lal", "label": "PETITIONER", "start_char": 5249, "end_char": 5258, "source": "ner", "metadata": {"in_sentence": "Madan Lal proceeded to the appellant's office with P.W.5 Agya Ram Batra and P.W.8 Deputy Lal Telwar.", "canonical_name": "Mad•an Lal"}}, {"text": "Agya Ram Batra", "label": "WITNESS", "start_char": 5306, "end_char": 5320, "source": "ner", "metadata": {"in_sentence": "Madan Lal proceeded to the appellant's office with P.W.5 Agya Ram Batra and P.W.8 Deputy Lal Telwar."}}, {"text": "Lal Telwar", "label": "WITNESS", "start_char": 5338, "end_char": 5348, "source": "ner", "metadata": {"in_sentence": "Madan Lal proceeded to the appellant's office with P.W.5 Agya Ram Batra and P.W.8 Deputy Lal Telwar."}}, {"text": "Lal", "label": "OTHER_PERSON", "start_char": 5485, "end_char": 5488, "source": "ner", "metadata": {"in_sentence": "On the giving of signal by Deputy Lal, Arora arrived and recovered the currency notes from the pocket of the appellant's bush-shirt."}}, {"text": "S. P. Iyer", "label": "WITNESS", "start_char": 5762, "end_char": 5772, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "section 5", "label": "PROVISION", "start_char": 5972, "end_char": 5981, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 6012, "end_char": 6023, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6031, "end_char": 6041, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Arora", "label": "WITNESS", "start_char": 6466, "end_char": 6471, "source": "ner", "metadata": {"in_sentence": "The two courts below relying upon the evidence of Prose.cuton Witnesses Madan Lal, Arora, Agya Ram and Deputy."}}, {"text": "Agya Ram", "label": "LAWYER", "start_char": 6473, "end_char": 6481, "source": "ner", "metadata": {"in_sentence": "The two courts below relying upon the evidence of Prose.cuton Witnesses Madan Lal, Arora, Agya Ram and Deputy."}}, {"text": "Lal", "label": "WITNESS", "start_char": 6494, "end_char": 6497, "source": "ner", "metadata": {"in_sentence": "Lal and re3ecttng\n\nthe explana\\ion of the appellant as untrue have convicted and sentenc .cd him as stated above."}}, {"text": "K. B. Rohtagi", "label": "LAWYER", "start_char": 6615, "end_char": 6628, "source": "ner", "metadata": {"in_sentence": "K. B. Rohtagi, learned counsel for the appellant made the following submissions.", "canonical_name": "K. B. Ro.h(agi,"}}, {"text": "P. W. Iyer", "label": "OTHER_PERSON", "start_char": 6771, "end_char": 6781, "source": "ner", "metadata": {"in_sentence": "to press for the acquittal of his client :\n\n(1) That the sanction given by P. W. Iyer in this case was invalid and not in accordance with section 6 of the Act.", "canonical_name": "P. W. Iyer"}}, {"text": "section 6", "label": "PROVISION", "start_char": 6834, "end_char": 6843, "source": "regex", "metadata": {"statute": null}}, {"text": "Whatever was done by him C was in contravention of section SA of the Act", "label": "STATUTE", "start_char": 6991, "end_char": 7063, "source": "regex", "metadata": {}}, {"text": "section 5(l)(d)", "label": "PROVISION", "start_char": 7104, "end_char": 7119, "source": "regex", "metadata": {"linked_statute_text": "Whatever was done by him C was in contravention of section SA of the Act", "statute": "Whatever was done by him C was in contravention of section SA of the Act"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 7154, "end_char": 7164, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "P.W. Iyer", "label": "OTHER_PERSON", "start_char": 7618, "end_char": 7627, "source": "ner", "metadata": {"in_sentence": "P.W. Iyer was the Deputy Secretary of that Department.", "canonical_name": "P. W. Iyer"}}, {"text": "section 6", "label": "PROVISION", "start_char": 7787, "end_char": 7796, "source": "regex", "metadata": {"linked_statute_text": "Whatever was done by him C was in contravention of section SA of the Act", "statute": "Whatever was done by him C was in contravention of section SA of the Act"}}, {"text": "15th of November", "label": "DATE", "start_char": 8895, "end_char": 8911, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Rationing", "label": "GPE", "start_char": 9805, "end_char": 9814, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "1st of July, I 967", "label": "DATE", "start_char": 10242, "end_char": 10260, "source": "ner", "metadata": {"in_sentence": "afternoon of the 1st of July, I 967 the First Information Report was lodged with the."}}, {"text": "Section 5", "label": "PROVISION", "start_char": 10563, "end_char": 10572, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 11210, "end_char": 11219, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 11370, "end_char": 11379, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 11502, "end_char": 11513, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 11521, "end_char": 11531, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 5", "label": "PROVISION", "start_char": 11614, "end_char": 11623, "source": "regex", "metadata": {"statute": null}}, {"text": "Agya Ram", "label": "WITNESS", "start_char": 11948, "end_char": 11956, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "section 4", "label": "PROVISION", "start_char": 12035, "end_char": 12044, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 12081, "end_char": 12092, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 12100, "end_char": 12110, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 4", "label": "PROVISION", "start_char": 12204, "end_char": 12213, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 12556, "end_char": 12567, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 12575, "end_char": 12585, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Supreme Court", "label": "COURT", "start_char": 12761, "end_char": 12774, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "s. 400", "label": "PROVISION", "start_char": 12808, "end_char": 12814, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 13021, "end_char": 13032, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 13040, "end_char": 13050, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 4", "label": "PROVISION", "start_char": 13118, "end_char": 13127, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 13176, "end_char": 13188, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 13408, "end_char": 13420, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 13431, "end_char": 13440, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 13465, "end_char": 13476, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 13484, "end_char": 13494, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1975_3_927_932_EN", "year": 1975, "text": "TIWARI KANAHAIYALAL ETC.\n\nTHE COMMISSIONER OF INCOME TAX, DELHI\n\nMarch 13, •I 975\n\n[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]\n\ni11co111e-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-\n\nPrmecution for false declaration under s. 52 of 1922 Act-ft valid. .\n\nSec 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,\n\n1962, 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\n\n28(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.\n\nThe 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.\n\nThe income-tax was\n\n~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.\n\nThe 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.\n\nDismissing the appeal to this Court,\n\nHELD : (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).\n\nTherefore, 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\n\nJain Bros & Others v. The U11io11 of llldia & others [1970] 3 S.C.R. 253. followed.\n\n(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.\n\nUnder 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\n\nRao Shir Balrndur Singh and a11otlicr v. Tile State of Vi11clllya Prade>il {1953] S.C.R. 1188. followed.\n\n(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\n\nClauses 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]\n\nc 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]\n\n CR!:V!INAL APPELLATE JuRrsorcnoN : Criminal Appeal No. 28- 39 of 1971.\n\nAppeals 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.\n\nM. M. Tewari, and S. M. Jain, for the appellant.\n\nT. A. Ra111achandran, .~. P. Nayar, and R. N. Sachthey, for the rcpondent.\n\nThe Judgent of the Court was delivered by\n\nL:o; TWALL\\, J.\n\nThese 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.\n\nThe appellant as partner ol' his partnership firm filed 12 Income Tax Returns for various assessment years-the last one being assessment year 1959-1960.\n\nThe 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\n\ns th.: 1922 Act.\n\nThe said act was repealed and replaced by the Income Tax Act, 1961-hereinafter called .the 1961 Act.\n\nThe 1961 Act came into force on or from 1-4-1962.\n\nDuring 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.\n\nIn 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.\n\nPenalty proceedings were foitiated and penalfy was levied in respect of each Return under section 271(1) (c)(iii) of the 1961 Act.\n\nThe respondent filed 12 complaints against the appellant alleging commission of offence by him under section 277 of the 1961 Act.\n\nSince 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\n\nthe 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.\n\nTo 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.\n\nAfter 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.\n\nThe 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.\n\nThe appeals were allowed and the Magistrate was directed to proceed with the trials in accordance with the law.\n\nHence these appeals.\n\nThe 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).\n\nSection 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.\n\nBut for the sake of precision and certainty those provisions were made.\n\nSome 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.\n\nSection 297 (2) provides \"Notwithstanding the repeal of the Indian Incomr-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act),-\n\n* * * * * * *\n\n(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;\n\n(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\n\n930 SlJPREME ( JURT RF.PORTS [19751 3 s.c.R.\n\nAll 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.\n\nHence 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).\n\nClause (f) did not come into play and no penalty was imposed under section 28 of the 1922 Act.\n\nThat 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.\n\nSection 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.\n\nGrover, 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 :\n\n\"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.\"\n\nAt page 264 says the learned Judge further :\n\n\"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\n\n1961.\"\n\nEven clause (1) of Article 20 of the Constitution does not help the G appellant.\n\nIt is not a pas~ facto legislation which is being gressed into service against him.\n\nAs pointed out by a Constitution Bench of this Court in Rao Shiv Bahadur Singh and another v. The State of\n\nVinhya Pradesh(2 ) at page 1198: ·\n\n\"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 ---------\n\n(1} (1970] (3) S.C.R. 253.\n\n(2) (1953] S.C.R. 1188.\n\ndiscussed and pointed out in th:: very_ learned judgment of Justice Willes in the well known case of Phz'!lips v. Eyre-\n\n(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.\n\nEdition 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.\n\nThere 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.\"\n\nArticle 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.\n\nOn 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.\n\nSub-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.\n\nSuch imposition merely barred the prosecution for the trial and conviction of the commission of the offence.\n\nThe 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.\n\nWe 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\n\n11der section Z77 of that Act.\n\nThe 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:\n\n\"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.\"\n\nIt 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.\n\nIn 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\n\n' . ..\n\nAct. 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 :\n\n\"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.\n\nIn 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.\n\nIn the case of a simple repeal there is scarcely aqy room for expression of a contrary opinion.\n\nBut 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.\n\nThe question is n'Ot whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.\n\nSection 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.\n\nSuch 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.\"\n\nIn the result all the appeals fail and are dismissed.\n\nV.P.S.\n\nAppeals dismissed.\n\n(1) [1969] (3) S.C.R. 65.", "total_entities": 116, "entities": [{"text": "TIWARI KANAHAIYALAL ETC", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "TIWARI KANAHAIYALAL ETC", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF INCOME TAX, DELHI", "label": "RESPONDENT", "start_char": 26, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME TAX, DELHI", "offset_not_found": false}}, {"text": "March 13, •I 975", "label": "DATE", "start_char": 65, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "THE COMMISSIONER OF INCOME TAX, DELHI\n\nMarch 13, •I 975\n\n[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 84, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 104, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "N.L. 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"metadata": {"confirmed_by_gazetteer": true}}, {"text": "March 3 l, 1962", "label": "DATE", "start_char": 847, "end_char": 862, "source": "ner", "metadata": {"in_sentence": "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,\n\n1962, 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."}}, {"text": "Section\n\n28(4)", "label": "PROVISION", "start_char": 969, "end_char": 983, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 22(2)", "label": "PROVISION", "start_char": 1205, "end_char": 1213, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 1215, "end_char": 1235, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 271", "label": "PROVISION", "start_char": 1531, "end_char": 1537, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "s. 277", "label": "PROVISION", "start_char": 1619, "end_char": 1625, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "s. 52", "label": "PROVISION", "start_char": 1732, "end_char": 1737, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "s. 28", "label": "PROVISION", "start_char": 1833, "end_char": 1838, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "Art. 20", "label": "PROVISION", "start_char": 1864, "end_char": 1871, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "s. 28", "label": "PROVISION", "start_char": 1994, "end_char": 1999, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "Art. 20(1)", "label": "PROVISION", "start_char": 2073, "end_char": 2083, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "s. 297(g)", "label": "PROVISION", "start_char": 2480, "end_char": 2489, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28(4)", "label": "PROVISION", "start_char": 2503, "end_char": 2511, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 2577, "end_char": 2582, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28(4)", "label": "PROVISION", "start_char": 2621, "end_char": 2629, "source": "regex", "metadata": {"statute": null}}, {"text": "[1970] 3 S.C.R. 253", "label": "CASE_CITATION", "start_char": 2711, "end_char": 2730, "source": "regex", "metadata": {}}, {"text": "Article 20(1)", "label": "PROVISION", "start_char": 2747, "end_char": 2760, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 28", "label": "PROVISION", "start_char": 2859, "end_char": 2869, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 271", "label": "PROVISION", "start_char": 3109, "end_char": 3115, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 20(1)", "label": "PROVISION", "start_char": 3199, "end_char": 3209, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the 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"section 52", "label": "PROVISION", "start_char": 6857, "end_char": 6867, "source": "regex", "metadata": {"statute": null}}, {"text": "section 277", "label": "PROVISION", "start_char": 6925, "end_char": 6936, "source": "regex", "metadata": {"statute": null}}, {"text": "section 277", "label": "PROVISION", "start_char": 7077, "end_char": 7088, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52", "label": "PROVISION", "start_char": 7108, "end_char": 7118, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28(4)", "label": "PROVISION", "start_char": 7362, "end_char": 7375, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 20(1)", "label": "PROVISION", "start_char": 7402, "end_char": 7415, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 7423, "end_char": 7444, "source": "regex", "metadata": {}}, {"text": "section 28", "label": "PROVISION", "start_char": 7766, "end_char": 7776, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 28(4)", "label": "PROVISION", "start_char": 7794, "end_char": 7807, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 20(1)", "label": "PROVISION", "start_char": 7878, "end_char": 7891, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 277", "label": "PROVISION", "start_char": 8000, "end_char": 8011, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 52", "label": "PROVISION", "start_char": 8031, "end_char": 8041, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 28(4)", "label": "PROVISION", "start_char": 8447, "end_char": 8460, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 20(1)", "label": "PROVISION", "start_char": 8480, "end_char": 8493, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 297(1)", "label": "PROVISION", "start_char": 8496, "end_char": 8510, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 8680, "end_char": 8689, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 8697, "end_char": 8722, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 297", "label": "PROVISION", "start_char": 8851, "end_char": 8862, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "section 6", "label": "PROVISION", "start_char": 8978, "end_char": 8987, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 8995, "end_char": 9014, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 297", "label": "PROVISION", "start_char": 9017, "end_char": 9028, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "Notwithstanding the repeal of the Indian Incomr-tax Act, 1922", "label": "STATUTE", "start_char": 9043, "end_char": 9104, "source": "regex", "metadata": {}}, {"text": "1st jay of April, 1962", "label": "DATE", "start_char": 9284, "end_char": 9306, "source": "ner", "metadata": {"in_sentence": "Section 297 (2) provides \"Notwithstanding the repeal of the Indian Incomr-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act),-\n(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;\n\n(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.\""}}, {"text": "section 28", "label": "PROVISION", "start_char": 10148, "end_char": 10158, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28(4)", "label": "PROVISION", "start_char": 10234, "end_char": 10247, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28(4)", "label": "PROVISION", "start_char": 10400, "end_char": 10413, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28(1)", "label": "PROVISION", "start_char": 10756, "end_char": 10769, "source": "regex", "metadata": {"statute": null}}, {"text": "section 271(1)", "label": "PROVISION", "start_char": 10796, "end_char": 10810, "source": "regex", "metadata": {"statute": null}}, {"text": "Grover", "label": "JUDGE", "start_char": 10829, "end_char": 10835, "source": "ner", "metadata": {"in_sentence": "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 :\n\n\"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."}}, {"text": "Constitution Bench", "label": "COURT", "start_char": 10880, "end_char": 10898, "source": "ner", "metadata": {"in_sentence": "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 :\n\n\"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."}}, {"text": "ss.274(1) and 275", "label": "PROVISION", "start_char": 11388, "end_char": 11405, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 271(1) and 297(2)(g)", "label": "PROVISION", "start_char": 11652, "end_char": 11676, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 1962", "label": "DATE", "start_char": 11849, "end_char": 11863, "source": "ner", "metadata": {"in_sentence": "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\n\n1961.\""}}, {"text": "s.271", "label": "PROVISION", "start_char": 12032, "end_char": 12037, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 20", "label": "PROVISION", "start_char": 12080, "end_char": 12090, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Willes", "label": "JUDGE", "start_char": 12686, "end_char": 12692, "source": "ner", "metadata": {"in_sentence": "discussed and pointed out in th:: very_ learned judgment of Justice Willes in the well known case of Phz'!lips v. Eyre-\n\n(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."}}, {"text": "Supreme Court of U.S.A.", "label": "COURT", "start_char": 12787, "end_char": 12810, "source": "ner", "metadata": {"in_sentence": "discussed and pointed out in th:: very_ learned judgment of Justice Willes in the well known case of Phz'!lips v. Eyre-\n\n(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."}}, {"text": "Article 20(1)", "label": "PROVISION", "start_char": 13202, "end_char": 13215, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 52", "label": "PROVISION", "start_char": 13552, "end_char": 13562, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 13600, "end_char": 13610, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 13772, "end_char": 13782, "source": "regex", "metadata": {"statute": null}}, {"text": "section 271", "label": "PROVISION", "start_char": 13933, "end_char": 13944, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 20(1)", "label": "PROVISION", "start_char": 14032, "end_char": 14045, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 52", "label": "PROVISION", "start_char": 14156, "end_char": 14166, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52", "label": "PROVISION", "start_char": 14532, "end_char": 14542, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 20", "label": "PROVISION", "start_char": 14667, "end_char": 14677, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 297", "label": "PROVISION", "start_char": 15004, "end_char": 15015, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52", "label": "PROVISION", "start_char": 15064, "end_char": 15074, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52", "label": "PROVISION", "start_char": 15192, "end_char": 15202, "source": "regex", "metadata": {"statute": null}}, {"text": "section 277", "label": "PROVISION", "start_char": 15330, "end_char": 15341, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 15564, "end_char": 15573, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 15728, "end_char": 15737, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 16251, "end_char": 16254, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 16262, "end_char": 16281, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "On the same subject the Court would undoubtedly have to look to the provisions of the new Act", "label": "STATUTE", "start_char": 16538, "end_char": 16631, "source": "regex", "metadata": {}}, {"text": "Section 6", "label": "PROVISION", "start_char": 16869, "end_char": 16878, "source": "regex", "metadata": {"linked_statute_text": "On the same subject the Court would undoubtedly have to look to the provisions of the new Act", "statute": "On the same subject the Court would undoubtedly have to look to the provisions of the new Act"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 16886, "end_char": 16905, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1975_3_933_934_EN", "year": 1975, "text": "SOW CHANDRA KANTA AND ANOTHER\n\nSHEIK HABIB March 13, 1975\n\n[V, R. KRISHNA IYER AND R. S. SARKARIA, JJ..]\n\nConstitution 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.\n\nOnce 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\n\nObservation : 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.\n\n(933 HJ\n\nREVIEW JURISDICTION : Review Petition No. 62A of 1974.\n\nPetition for review of this Court's Order dated the 18th January,• 1974 in Spl. Leave Petition No. 2788 of 1973.\n\nq, K. Daphtary, S. K. Dholakia an~R. C. Bhatia, for the petitioner.\n\nS. V. Tambwaker, for the respolndent.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA 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.\n\nMay 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.\n\nA 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.\n\nA 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.\n\nThe 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.\n\nThe Bench\n\nSUPREME COURT REPORTS [19751 3 s.c.R.\n\nand the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use.\n\nWe 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.\n\nMay be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course.\n\nThe present stage is not a virgin ground but review of an earlier order which has the normal feature of finality. ·\n\nWe dismiss the petition unhesitatingly, but wi.th these observations, hopefully. ·\n\nV.M.K.\n\nReview petition dismissed .", "total_entities": 15, "entities": [{"text": "SOW CHANDRA KANTA AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "SOW CHANDRA KANTA AND ANOTHER", "offset_not_found": false}}, {"text": "SHEIK HABIB", "label": "RESPONDENT", "start_char": 31, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "SHEIK HABIB", "offset_not_found": false}}, {"text": "March 13, 1975", "label": "DATE", "start_char": 43, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "SOW CHANDRA KANTA AND ANOTHER\n\nSHEIK HABIB March 13, 1975\n\n[V, R. KRISHNA IYER AND R. S. SARKARIA, JJ..]\n\nConstitution of India, 1950, Art."}}, {"text": "R. KRISHNA IYER", "label": "JUDGE", "start_char": 63, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 83, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 106, "end_char": 127, "source": "regex", "metadata": {}}, {"text": "Art. 137", "label": "PROVISION", "start_char": 135, "end_char": 143, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Court Rules, 1966", "label": "STATUTE", "start_char": 148, "end_char": 173, "source": "regex", "metadata": {}}, {"text": "Supreme Court Rules, 1966", "label": "STATUTE", "start_char": 398, "end_char": 423, "source": "regex", "metadata": {}}, {"text": "K. Daphtary", "label": "OTHER_PERSON", "start_char": 1404, "end_char": 1415, "source": "ner", "metadata": {"in_sentence": "q, K. Daphtary, S. K. Dholakia an~R. C. Bhatia, for the petitioner.", "canonical_name": "K. Daphtary"}}, {"text": "S. K. Dholakia", "label": "OTHER_PERSON", "start_char": 1417, "end_char": 1431, "source": "ner", "metadata": {"in_sentence": "q, K. Daphtary, S. K. Dholakia an~R. C. Bhatia, for the petitioner."}}, {"text": "R. C. Bhatia", "label": "LAWYER", "start_char": 1435, "end_char": 1447, "source": "ner", "metadata": {"in_sentence": "q, K. Daphtary, S. K. Dholakia an~R. C. Bhatia, for the petitioner."}}, {"text": "S. V. Tambwaker", "label": "LAWYER", "start_char": 1470, "end_char": 1485, "source": "ner", "metadata": {"in_sentence": "S. V. Tambwaker, for the respolndent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 1553, "end_char": 1565, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA 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."}}, {"text": "Daphtary", "label": "OTHER_PERSON", "start_char": 1574, "end_char": 1582, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA 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.", "canonical_name": "K. Daphtary"}}]}
{"document_id": "1975_3_935_941_EN", "year": 1975, "text": "AHMEDABAD MUNICIPAL CORPORATION & ORS.\n\n)I,\n\nRAMANLAL GOVINDRAM & ORS.\n\nMarch 14, 1975\n\n(A. N. R, AY, C.J., AND V. R. KRISHNA IYER, J.]\n\nConstitution 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-\n\nThe 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.\n\nSection 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.\n\nSection 43 7 A (2) speaks of the service of notice before the order is passed.\n\nSection 4370 speaks of appeals to the State Government.\n\nSection 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.\n\nThe 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.\n\nThe 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.\n\n1he 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------\n\nmary 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\n\nthat 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.\n\nAllowing1 the appeal,\n\nHELD : 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.\n\nThe Corporation represents public interest.\n\nThe ~; 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] ·\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 81 to 103 of 1970. .\n\nFrom 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.\n\nI. N. Shroff, for the appellants.\n\nVineet Kumar, for respondents in 81, 83 and 89 and respondent 1 in 85/70.\n\nM. K. Ramamurthy, C. R. Somasekharan and Vineet Kumar, for respondents in : 90, 93-101 & 103 of 1970.\n\nM. C. Bhandare, M. N. Shroff and S. P. Nayar, for respondent 2 in 85/70.\n\nThe Judgment of the Court was delivered by\n\nRAY, 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.\n\nThe 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\n\n(1) and (2) is ultra vires Article 14.\n\nSection 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.\n\nSection 437£ of the Act bars jurisdiction of the Court to question these orders.\n\nSection 43 7F of the Act states that these provisions are in addition to Sections 60 and 438 of the Act.\n\nSection 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\n\nAHMEDABAD MUNICIPjAL CORP. V. RAMANLAL (Ray, C.J.) 937\n\nbelonging 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.\n\nSub-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.\n\nThe other provisions in section 437A of the Act are these.\n\nThe 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.\n\nThe 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.\n\nSection -437-D speaks of appeal against any order of the Commissioner under section 437-A or section 437-B.\n\nSection 437B speaks of power to recover rent or damages as arrears of land revenue.\n\nAppeals are preferred to the State Government.\n\nSection 437-E ars the jurisdiction of civil courts in respect of orders made by tlhe State Government or the Commiss.ioner.\n\nThe 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.\n\nThe respondents appeared at the enquiry held by the appellant No. 3. The respondents gave their statements in reply.\n\nAppellant 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.\n\nThe 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.\n\nThe main grounds of challenge were these.\n\nFirst, section 437-A C violates Article 14.\n\nIt 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.\n\nThere is no guiding policy or principle in the section to choose the application of the tlrastic procedure.\n\nD 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.\n\nThere is no policy or principle to guide the Municipal Commissioner in\n\nth'.~ 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.\n\nIt is open to the Municipal Commissioner at his will to proceed against some and not to proceed against others.\n\nSecond, 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.\n\nThird,. the orders of'evi:::tion contained in the notices are bad as reasons are not furnished along with the orders.\n\n. 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.\n\nThe 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.\n\nAHMEDABAD MUNICIPf'\\L CORP. V. RAMANLAL (Ray, C.J.) 93 ..\n\nThe 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.\n\nThe 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.\n\n' 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.\n\nThe 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.\n\nThe High Court held that the liability to eviction under section 437i<\\(1) (b) was therefore no't exclusive but only supplemental.\n\nRelying on the decision of this Court in Northern India Caterers Private Ltd. v. State of Punjab & Anr.\n\n(1967) 3 S.C.R. 399 the High Court held that section 437A(l) (b} therefore violated Article 14.\n\nThe 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).\n\nThe 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.\n\nThe High Court upheld the contention of the tenants that the machinery provided for eviction in section 437-A( 1) is unreasonable.\n\nThe 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.\n\nThe functions of the Municipal Commissioner are such that in reality an_c:j substa.nce the Municipal Commissioner is a party to the dispute.\n\nThe Corporation is a party to the dispute, because the premises belong to the Corporation.\n\nThe 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.\n\nThe 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.\n\nThe hearing of appeal by the State shows that the State Government is given the power to call for a :eport from the Municipal Commissioner.\n\nThere 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).\n\nThe High Court also held that the notice embodying the order of eviction must furnish the reasons to the affected person\"\n\n111e decision of this Court in Hari Singh v. Military Estate Officer\n\n(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.\n\nThere is a bar of jurisdiction .of courts of law in such cases. It is, therefore, only one procedure for these cases of eviction.\n\nThe majority decision of this Court in Magan/al Chhagganlal (P) Ltd. v.\n\nMunicipal 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.\n\nThe 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.\n\nThe 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.\n\nOn the ruling of this Court in Maganlal Chhaggariil'al's case\n\n(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.\n\nThe 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.\n\nThe conferment of power on the Municipal Commis_sioner as an Administrative Officer to\n\ntake proceedings for eviction cannot be struck down as unreasonable ,1n the ground that he is a judge in his own cause.\n\nHe is the highest oflicer of the Corporation.\n\nThe Corporation acts through these offices.\n\nThere is no personal interest of the Municipal Corporation in evicting these persons.\n\nThe Corporation represents public interest.\n\nThe 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-\n\nAHMEDABAD MUNICIP1AL GORP. v. RAMANLAL (Ra~, C.J.) 941\n\ncumstances of a given case as to whether there should be an order for eviction.\n\nIf the Municipal Commissioner will wrongly exercise his power the action will be corrected in appeal.\n\nThe 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\n\nl 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.\n\nCounsel 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\n\n(supra) and were absent in the present case. It was, therefore, said that the present case is distrnguishoable.\n\n1ne 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.\n\nThe fact that an appeal is provided to the State and not to a court of law also does not make the provision unreasonable.\n\nIn 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.\n\nThe orders which were passed gave reasons. 'The orders were.not served.\n\nThat should not happen.\n\nThat indicates inefficiency.\n\nThere is no infirmity in the orders.\n\nThe authorities should serve orders giving reasons for making the order.\n\nFor 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. '\n\nP.H.P.\n\nAppeals allowed.", "total_entities": 103, "entities": [{"text": "AHMEDABAD MUNICIPAL CORPORATION & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "AHMEDABAD MUNICIPAL CORPORATION & ORS", "offset_not_found": false}}, {"text": "RAMANLAL GOVINDRAM & ORS", "label": "RESPONDENT", "start_char": 45, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "RAMANLAL GOVINDRAM & ORS", "offset_not_found": false}}, {"text": "March 14, 1975", "label": "DATE", "start_char": 72, "end_char": 86, "source": "ner", "metadata": {"in_sentence": "March 14, 1975\n\n(A. N. R, AY, C.J., AND V. R. KRISHNA IYER, J.]\n\nConstitution 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."}}, {"text": "V. R. KRISHNA IYER, J.", "label": "JUDGE", "start_char": 112, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "V.R. 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"ner", "metadata": {"in_sentence": "Allowing1 the appeal,\n\nHELD : 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."}}, {"text": "Northern India Caterers", "label": "ORG", "start_char": 4177, "end_char": 4200, "source": "ner", "metadata": {"in_sentence": "Allowing1 the appeal,\n\nHELD : 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."}}, {"text": "Magan/al Chhagan", "label": "ORG", "start_char": 4262, "end_char": 4278, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "section 437A", "label": "PROVISION", "start_char": 4325, "end_char": 4337, 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Shroff", "label": "LAWYER", "start_char": 6189, "end_char": 6198, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for the appellants."}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 6221, "end_char": 6233, "source": "ner", "metadata": {"in_sentence": "Vineet Kumar, for respondents in 81, 83 and 89 and respondent 1 in 85/70."}}, {"text": "M. K. Ramamurthy", "label": "LAWYER", "start_char": 6296, "end_char": 6312, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthy, C. R. Somasekharan and Vineet Kumar, for respondents in : 90, 93-101 & 103 of 1970."}}, {"text": "C. R. Somasekharan", "label": "LAWYER", "start_char": 6314, "end_char": 6332, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthy, C. R. Somasekharan and Vineet Kumar, for respondents in : 90, 93-101 & 103 of 1970."}}, {"text": "M. C. Bhandare", "label": "LAWYER", "start_char": 6399, "end_char": 6413, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, M. N. Shroff and S. P. Nayar, for respondent 2 in 85/70."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 6415, "end_char": 6427, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, M. N. Shroff and S. P. Nayar, for respondent 2 in 85/70."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 6432, "end_char": 6443, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, M. N. Shroff and S. P. 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V. RAMANLAL", "label": "JUDGE", "start_char": 13677, "end_char": 13716, "source": "ner", "metadata": {"in_sentence": "AHMEDABAD MUNICIPf'\\L CORP."}}, {"text": "section 437", "label": "PROVISION", "start_char": 13771, "end_char": 13782, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 13889, "end_char": 13900, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 14005, "end_char": 14015, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 14201, "end_char": 14212, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 14308, "end_char": 14319, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 14494, "end_char": 14505, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 14625, "end_char": 14636, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 14775, "end_char": 14786, "source": "regex", "metadata": {"statute": null}}, {"text": "(1967) 3 S.C.R. 399", "label": "CASE_CITATION", "start_char": 14955, "end_char": 14974, "source": "regex", "metadata": {}}, {"text": "section 437A(l)", "label": "PROVISION", "start_char": 15000, "end_char": 15015, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 15039, "end_char": 15049, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 15102, "end_char": 15113, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 15125, "end_char": 15135, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 15242, "end_char": 15253, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 15636, "end_char": 15647, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 15862, "end_char": 15873, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19(1)", "label": "PROVISION", "start_char": 17146, "end_char": 17159, "source": "regex", "metadata": {"statute": null}}, {"text": "Magan/al Chhagganlal", "label": "OTHER_PERSON", "start_char": 18195, "end_char": 18215, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Magan/al Chhagganlal"}}, {"text": "Northern India Caterers cae", "label": "ORG", "start_char": 18676, "end_char": 18703, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Magan/al Chhaggan", "label": "OTHER_PERSON", "start_char": 18740, "end_char": 18757, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Magan/al Chhagganlal"}}, {"text": "Maganlal Chhaggariil'al", "label": "OTHER_PERSON", "start_char": 19286, "end_char": 19309, "source": "ner", "metadata": {"in_sentence": "On the ruling of this Court in Maganlal Chhaggariil'al's case\n\n(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."}}, {"text": "section 437A", "label": "PROVISION", "start_char": 19364, "end_char": 19376, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 19387, "end_char": 19397, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 19705, "end_char": 19715, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437A(l)", "label": "PROVISION", "start_char": 19775, "end_char": 19790, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437", "label": "PROVISION", "start_char": 20808, "end_char": 20819, "source": "regex", "metadata": {"statute": null}}, {"text": "section 437A(l)", "label": "PROVISION", "start_char": 21761, "end_char": 21776, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 22273, "end_char": 22284, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 437A, 437D, 437E and 437F", "label": "PROVISION", "start_char": 23052, "end_char": 23086, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_942_945_EN", "year": 1975, "text": "SUSHIL KUMAR SEN\n\nSTATE OF BIHAR March 17, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KR!SHNA, lYER, JJ.]\n\nPractice-Appellate court holding order 011 review 1101 maintainab/e-Efject of.\n\nThe 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.\n\nThe respondent State appEed for review of the judgment under 0.47, r.1, C.P.C.\n\nOn 26-9-1961 the Additional District Judge allowed the application for review and reduced the compensation to Rs. 7 5 /-· per katha.\n\nThe 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.\n\nThe 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.\n\nAllowing the appeal to this Court,\n\nHELD : 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.\n\nSo 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.\n\nSince 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\n\nPer Krishna lyu. J :\n\n[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\n\nguardedly 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]\n\nCIVIL APl'ELLATE JURISJ?ICTION: Civil Appeal No. 1252 of 1970.\n\nFrom the judgment and decree dated 16th February, 1968 of the' G Patna High Court in Appeal for Original Decree No. 81 of 1962.\n\nP. K. Chatterjee and Rathin Das, for the appellant.\n\nD. Goburdhan, for the respondent.·\n\nThe 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.\n\nMATHEW, 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\n\ns. K. SEN v. BJHAR (Mathew, !.) 943\n\nacquired 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.\n\nThe total compensation including the value of trees and other improvements came to Rs. 6, 775.22p.\n\nThe appellant was dissatisfied with the award.\n\nHe 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.\n\nThe 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.\n\nOn 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.\n\nThe 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.\n\nThereafter 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.\n\nThe 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.\n\nThe appeal and the cross appeal were disposed of by the judgment of the High Court dated 16-2-1968.\n\nThe 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\n\n26-9-1961 of the Additional District Judge.\n\nThis appeal, on the basis of a certificate, is directed against the decree of the High Court.\n\nIt is well settled that the effect of allowing an application for review of a decree is to vacate the decree passed.\n\nThe 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.\n\nBaldev Prasad(2), Brijbaso Lal v. Sa/ig Ram(3) and Pyari Mohan\n\nKundu v. Kalu Khan(4 ) ].\n\nThe respondent did not file any appeal from the decree dated 18-8-1961 awarding compensation for the land acquired at the rate of\n\n(1) A .I.R. 1928 Calcutta 418.\n\n(3) I.L.R. 34 A\\\\a'1.ai, a1282.\n\n(2) I.L.R. 28 A!lahabad 240.\n\n(4) I.L.R. 44 Calcutta 1011.\n\nSUPREME COURT REPORTS [19751 3 s.c.R.\n\nRs. 200/- per katha.\n\nOn 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\n\nby 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.\n\nWhen 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.\n\nSince 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.\n\nThe 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.\n\nThe 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.\n\nWe therefore >ct aside the judgment and decree passed by the High Court and allow the appeal.\n\nThe 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.\n\nKRISHNA 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.\n\nThe mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.\n\nThe 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.\n\nParlia01ent, 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,\n\ncounding 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\n\nS, K. SEN v. BIHAR (Mathew, /,) 945\n\nsacrifice 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.\n\nY.P.S.\n\nAppeal allowed\n\n14-564SCI/75", "total_entities": 29, "entities": [{"text": "SEN\n\nSTATE OF BIHAR", "label": "RESPONDENT", "start_char": 13, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR", "offset_not_found": false}}, {"text": "March 17, 1975", "label": "DATE", "start_char": 33, "end_char": 47, "source": "ner", "metadata": {"in_sentence": "SUSHIL KUMAR SEN\n\nSTATE OF BIHAR March 17, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KR!SHNA, lYER, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 49, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "A. N. RAY, C.J.", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 66, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "K. K. MATHEW", "offset_not_found": false}}, {"text": "s. 18", "label": "PROVISION", "start_char": 357, "end_char": 362, "source": "regex", "metadata": {"statute": null}}, {"text": "18-8-1961", "label": "DATE", "start_char": 398, "end_char": 407, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 577, "end_char": 582, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "26-9-1961", "label": "DATE", "start_char": 588, "end_char": 597, "source": "ner", "metadata": {"in_sentence": "The respondent State appEed for review of the judgment under 0.47, r.1, C.P.C.\n\nOn 26-9-1961 the Additional District Judge allowed the application for review and reduced the compensation to Rs."}}, {"text": "Krishna lyu", "label": "JUDGE", "start_char": 2182, "end_char": 2193, "source": "ner", "metadata": {"in_sentence": "943 G-944 A-CJ\n\nPer Krishna lyu.", "canonical_name": "KRISHNA IYER"}}, {"text": "Parliament", "label": "ORG", "start_char": 2237, "end_char": 2247, "source": "ner", "metadata": {"in_sentence": "J :\n\n[While the appeal has to be allowed, Parliament may consider the wisdom of making the judge the ultimate guardian of justice by a comprehensive."}}, {"text": "CIVIL APl'ELLATE JURISJ?ICTION", "label": "RESPONDENT", "start_char": 2840, "end_char": 2870, "source": "ner", "metadata": {"in_sentence": "944 F-H]\n\nCIVIL APl'ELLATE JURISJ?ICTION: Civil Appeal No."}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 3033, "end_char": 3049, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee and Rathin Das, for the appellant."}}, {"text": "Rathin Das", "label": "LAWYER", "start_char": 3054, "end_char": 3064, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee and Rathin Das, for the appellant."}}, {"text": "D. Goburdhan", "label": "LAWYER", "start_char": 3086, "end_char": 3098, "source": "ner", "metadata": {"in_sentence": "D. Goburdhan, for the respondent.·"}}, {"text": "A. N. Ray", "label": "JUDGE", "start_char": 3138, "end_char": 3147, "source": "ner", "metadata": {"in_sentence": "The Judgment of A. N. Ray, CJ.", "canonical_name": "A. N. RAY, C.J."}}, {"text": "K. K. Mathew", "label": "JUDGE", "start_char": 3158, "end_char": 3170, "source": "ner", "metadata": {"in_sentence": "a'ld K. K. Mathew, J. was delivered by Mathew, J. V. R. Krishna Iyer, J. gave a separate Opinion.", "canonical_name": "K. K. MATHEW"}}, {"text": "Mathew", "label": "JUDGE", "start_char": 3192, "end_char": 3198, "source": "ner", "metadata": {"in_sentence": "a'ld K. K. Mathew, J. was delivered by Mathew, J. V. R. Krishna Iyer, J. gave a separate Opinion.", "canonical_name": "Mathew"}}, {"text": "V. R. Krishna Iyer", "label": "JUDGE", "start_char": 3203, "end_char": 3221, "source": "ner", "metadata": {"in_sentence": "a'ld K. K. Mathew, J. was delivered by Mathew, J. V. R. Krishna Iyer, J. gave a separate Opinion."}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 3252, "end_char": 3258, "source": "ner", "metadata": {"in_sentence": "MATHEW, J.-The appellant was the owner of 3 .30 acreS\":roughly .equal to 7 bighas, 17 kathis and 14 dhurs-of land.", "canonical_name": "Mathew"}}, {"text": "12-10-1957", "label": "DATE", "start_char": 3527, "end_char": 3537, "source": "ner", "metadata": {"in_sentence": "The Land Acquisition Officer by his award dated 12-10-1957 gave compensation at the rate of Rs."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 3868, "end_char": 3873, "source": "regex", "metadata": {"statute": null}}, {"text": "Additional District Judge, Purnea", "label": "COURT", "start_char": 4005, "end_char": 4038, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "22-8-1961", "label": "DATE", "start_char": 4281, "end_char": 4290, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "State of Bihar", "label": "RESPONDENT", "start_char": 4312, "end_char": 4326, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Order 47, Rule 1", "label": "PROVISION", "start_char": 4367, "end_char": 4383, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 4864, "end_char": 4883, "source": "ner", "metadata": {"in_sentence": "81 of 1962 in the High Court of Patna."}}, {"text": "16-2-1968", "label": "DATE", "start_char": 5652, "end_char": 5661, "source": "ner", "metadata": {"in_sentence": "The appeal and the cross appeal were disposed of by the judgment of the High Court dated 16-2-1968."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 8403, "end_char": 8415, "source": "ner", "metadata": {"in_sentence": "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.\n\nThe mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.", "canonical_name": "KRISHNA IYER"}}, {"text": "Parlia01ent", "label": "JUDGE", "start_char": 9571, "end_char": 9582, "source": "ner", "metadata": {"in_sentence": "Parlia01ent, I hope, will consider the wisdom of making the Judge the ultimate guardian of justice by a comprehensive."}}]}
{"document_id": "1975_3_946_957_EN", "year": 1975, "text": "9 46\n\n(jOVIND\n\nSTATE OF MADHYA PRADESH & ANR.\n\nMarch 18, 1975\n\n[K. K. MATHEW, v. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.]\n\nMadhya Pradesh Police Regulations, 855 and 856, made under s. 46 (2) (c) o/ Police Act, 1961--.// violative of Arts. 19(i)(d) and 21.\n\nThe petitioner in a petition under Art. 32, challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961. Regulation 855 provides that where on infor mation the District Superintendent believes that a particular individual is leadin~ a life of crime, and his conduct shows a determination to lead a life of crime that individual's name may be ordered to be entered in the surveillance register, and he would be placed under regular surveillance. Regulation 856 provides that such surveillance, inter a/ia may consist of don\\iciliary visits both by day and night at frequent but irregular intervals. It was contended that, (I) the Regula tions were not framed under any provision of the Police Act, and (2) even if they were framed under s. 46(2) of the Police Act, the provisions regarding dpmiciliary visits offended Arts. 19(1 )(d) and 21.\n\nDismissing the petition, HEW: (1) The Regulations were framed under s. 46(2)(c) of the Police Act al)d have the force of law. The paragraph provides that the State Government may make rules generally for giving effect to the provisions of the Act; and one of the objects of the Act is to prevent the commission of crimes. The pr0vision regarding domiciliary visits i~ intended to prevent commission of offences,\n\nbecause, their obiect is to see if the individual is at home or gone out of it for commL'lSion of offences. [949 FG, H-950 A]\n\n., ,,\n\n(2) (a) Too broad a definition of privacy will raise serious questions about the E propriety of ,.idicial reliance on a right that is not explicit in the Constitution.\n\nThe right to privacy will, therefore, necessarily. have to go through a process ('f case by case devdopment. Hence, assuming that the right to personal liberty, the right to move freely throughout India and the freedom of speech create an indel'endent fundamental right of privacy as an emanation from them it could not he absolute. It must be suhjcct to restriction on the basis of coml)elling pul' lie interest.\n\nBl.'.t the law infringing it must satisfy the compelling state interest test. [954 D..C, H-955 B; 956 B-C] l\n\n(b) Oras:ic inroads directly into privacy and indirectly into fundamental right will b~ made if the ltegulations were to be read too widely. When there are two int:n>retHtions. one w:<le and unconstitutional, and the other narrower but within constitutional bounds. the Court will read down the over flowing expressiom to make them valid .. [955 DE; 956 G]\n\n(c) A~ the Regulations have force of law, the petitioner's fundamental right 1mdcr Art. 21 is not violated. [955 HJ\n\n(d) It cannot be said that surveillance by domiciliary visits would always he an unrcsonablc retriction upon ihe right of privacv.\n\nIt is onlv persons who are snsoected to be habitnal criminals and those who are determined to k:.id a crimiml life that arc subiecte<l to surveillance. If 'crime' in this context is con fined to such acts as involve public peace or secmitv, the law imposing such a reasonable restriction mus! be urheld as valid. [956 C-D, F-Hl\n\n[Legality apart, these regufotions ill-accord with the essence of personal free-\n\nI I doms and the State will do well to revise these old Po11ce Regulations. Domici liarv 'isits and nirketing bv the police should he reduced to the clearest cases of community security and should no~ become routine follnw un at the end of a conv!ction or release from jail, or at the whim of a police officer.] (957 A-CJ\n\nGCVIND v. M. P. STATE (Mathew, !,) 947\n\nKharak Singh v. The State of U.P. & Ors., [1964] 1 S.C.R. 332, Griswold v.\n\nConnecticut, 381, U.S. 479, 510; Jane Roe v. Henry Wade, 410 U.S. 113 a11d Olmstead v. United States, 277 U.S. 438. 471. referred to.\n\nORIGINAL JURISDICTION : Writ Petition No. 72 of 1970.\n\nPetition under Article 32 of the Constitution of India.\n\nB A. K. Gupta and R. A. Gupta for the Petitioner.\n\nRam Punjwani, H. S. Parihar and /. M. Shroff, for the Res pondents.\n\nThe Judgment of the Court was delivered by\n\nMATHEW, J.\n\nThe petitioner is a citizen of India. He challenges the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations pmporting to be made by the Government of Madhya Pradesh under s.46(2)(c) of the Police Act, 1961.\n\nThe petitioner alleges that several fu.lse cases have been filed against him in criminal courts by the police but that he was acquitted in all but two cases.\n\nHe says that on the basis that he is a habitual criminal, the police have opened a history sheet against him and that he has been put under surveilla, nce.\n\nThe petitioner says that the police are making domiciliary visits both by day and by night at frequent intervals, that they are secretly picketing his house and the approaches to his -house, that his movements arc being watched by the pate! of the village and that when the police come to the village for any purpose, he is called and harassed with the result that his reputation has sunk I-ow in the estimation of his neighbours.\n\nTue petitioner submits that whenever he leaves the village for another place he has to report to the Chowkidar of the village or to the police station about his departure and that he has to give further informatron about his destination and the period within which he would return.\n\nThe petitioner contends that these actions or the police are violative of the fundamental right guaranteed to him under Articles 19(1 )( d) and 21 of the Constitution, and he prays for a declaration that Regnlations 855 and 856 are void as contravening his fundamental rights under the above Articles.\n\nIn the return filed, it is stated that \"the petitioner has managed to commit many crimes during the period 1960 to 1969.\n\nIn the year 1962 the petitioner was convicted in one case under Section 452 IPC and was fined Rs. 100/- in default rigorous imprisonment of two months and in another case he was convicted under Section 456 IPC and was fined Rs. 50/- and in default rigorous imprisonment of one nronth.\n\nIn the year 1969 the petitioner was convicted under Section 55/109 Cr.P.C. and was bound over for a period of one year by SDM, Jatara.\n\nIn the year 1969, the petitioner e:ot cornoounded a case pending :igainst him under Section 325/147 /324 IPC.\n\nSimilarly, he also got another case under Section 341/324 IPC compounded.\"\n\nThe ce of the respondent in short is that the petitioner is a dangerous criminal whose conduct shows that he is determined to lead . a criminal life and that he was put under surveillance in order to prevent him from committing offences.\n\nRegulation 855 reads :· . \"855. Surveillance proper, as distinct from general supervision, should be restricted to those persons, whether or not previously convicted, whose conduct shows a determination to lead a life of crime. . The list of persons under surveillance should include only tlrose persons who are believed to be really dangerous criminals.\n\nWhen the entries in a history sheet, or any. other information at his disposal, leads the District Superintendent to believe that a particular individual is leading a life of crime, he may order that his name be 'ntered in the surveillance register. The Circle\n\nInspector will thereupon (open a ?) history sheet, if one is oot already in existence, and the man will be placed under regular surveillance.\" ·\n\nRegulation 856 provides:\n\n\"856. Surveillance may', , for practical purpo!; cs, be defined as consisting of the following measures :\n\n(a) Thorough periodical enquiries by the station-house officer as to repute, habits, - association, income, expenses and occupation.\n\n(b) Domiciliary visits both by day and night at frequent but irregular intervals. , -\n\n• ( c) Secret picketing of the house and approaches on any occasion when the surveillance (surveillant?) is found absent.\n\n--- (cl) The rporting by. patels~ mukaddams and kotwars\n\nOf movements and absences from home.\n\n(e) The verification of such movements and absences by means of bad character rolls. ·\n\n(I) The collection in a history sheet of all information bearing on conduct. .\n\nIt must be remembered that the surest way of drivino a man to a life of crime is to prevent him from earning a~ honest living. Surveillance should, therefore never be an impediment to steady employment and should not be made unnecessarily irksome or humiliating. The person under ' ·. surveillance should, if possible be assisted in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged.\"\n\nGOVJND v, .M, P.· STATE. (Mathew, J,) 949\n\nA In Khaak Singh v. The siate of U.P. and Others(') this Cmrt . had occasion to consider, the validity of Regulation 236 of the U.P.\n\nPolice Regulations which is in pari materia with Regulation 856 here.\n\nThere it was held by a majorily that regulation 236(b). providin, g for domiciliary visits was unconstitutional for the reason that it abridged .. . .. the fundamental right of a person under Article 21 and since Regula- . . n ·. tion 236(b) did not have the force of Jaw, the regulation was declared . bad. The other provisions of the regulation were held to be constitutional. The decision that the. regulation in question there was not ' law was based upon a concession made on behalf of the State of U.P. that the. U.P. Police Regulations were not framed under any of the provisions of the Police Act. c .\n\nThe 'petitioner submitted that as: the regulations. inquestion here were also not framed under any provision of the Police Act, the pro- visions regarding domiciliary visits in. regulations 855. and 856 must be declared bad and that even if the regulations were framed .under s.46(2)(d) of the Police Act, they offended the fundamental right of the petitioner under Article 19(l)(d) as well as under Article 21 of\n\n. the Constitution. ·\n\nSo far as the first contentioll, is concerned, we are of the view : that the rerulalions were framed by the Government of Madhya Pradesh under s.46(2) (c) of the Police Act. Section 46(2) states that the State Government may,· from time to time, by notification in the. official gazette, make rules consistent with the Act-\n\n. ''(c) generally, for giving effect io the provisions of this ..\n\nAct.\"\n\nThe petitioner contended that rules cari be framed by the State Government under s.46(2)(c) only for giving effect to the provisions of the Act and that the provisions in Regulation 856 for domiciliary visits and other matters are notfor the purpose of giving effect to. any of the provisions of the Police Act and therefore regulation 856 is ultra vire~. . . , _ •\n\nWe do not think that. the contention is right.\n\nThere .can be no doubt that one of the objects of the Police Act is to prevent commission of offences.\n\nThe preamble to the Act states :\n\n\"Whereas it is expedient to re-organise the police and to make it a more efficient instrument for the prevention and detection of crime.\". ·\n\nAnd, s. 23 of the Act (so far as it is material) reads:\n\n\"It shall be the duty of every police officer .. to prevent the commission of offences and public nuisances.; . \". . . . ' - . ,.\n\nWe think that the provision in regulation 856 fur domiciliary\n\nviits and other actions by th~ police is intended to prevent the com- . mission of offences.\n\nThi? object of domiciliary viSits is to see that\n\n(I) [1964] I S.C.R. 332.\n\nthe person subjected to suveillance is in his home and has not goll:e out of it for commission of any offence.\n\nWe are therefore of opinion that Regulations 855 and 856 have the force of law.\n\nThe next question is whether the provisions of regulation 856 offend any of the fundamental rights of the petitioner.\n\nIn Kharak Singh v. The State of U.P. & Others (supra) the majority said that 'personal liberty' in Article 21 is comprehensive include all varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(1)(d). According to the Court, while Article 19(l)(d) deals with the particular types of personal freedom, Article 21 takes in and deals with the residue.\n\nThe Court said :\n\n\"We have already extracted a passage from the judgment of Fh:ld J. in Munn v. Illinois (1877) 94 U.S. 113, 142, where the learned Jud_ge pointed out that 'life' in the 5th and 14th Amendments of the U.S. Constitution corresponding to Art. 21 means not merely the right to the continuance of a person's animal existence, but a right to the , x:•sscssion of each of his organs-his arms and legs etc.\n\nWe do not entertain any doubt that the word 'life' in Art. 21 bears the same signification.\n\nIs then the word 'personal liberty' to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's bome and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be in appropriate to refer here to the words of th() preamble to the Constitution that it is designed to \"assure\n\nthe dignity ef the individual\" and therefore of those cherished human value as the means of ensuring his full development and evolution.\n\nWe are referring to these objectives of the framers merely to drav: attention to the concepts underlying the constitution which would point to such vital words as 'personal liberty' having to be construed in a reasonable manner and to be attributed that sense which\n\nwoud promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any prnconceived notions or doctrinaire constitutional theories.\"\n\nThe Court then quoted a passage from the judgment of Frankfurter J. in Wolf v.\n\nCo'Vrado(') to the effect that the security of one's privacy against arbitrary intrusion by the police is basic to a free society and that the knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the\n\nia.uthority of the police, did not need 'the commentary of recent h_isfory to b~ con?emned .as inconsistent wi'.h the c?nception of human nghts enshrined m the history and the basic constitutional documents of English-speakinP, peoples.\n\nThe Court then said that at Common Law every man's house is his castle and that embodies an abiding\n\n(I) f1949J 338 U.S. 25.\n\n' •1\n\nGOVIND v. M. P. STATE (Mathew, J,) 951\n\nprincfo transcending mere protection of property rights and expounds a concept of 'personal liberty' which does not rest upon any element of feudalism or any theory of freedom which has ceased to exist.\n\nThe Court ultimately came to the conclusion that regulation 236(b) which authorised domiciliary visits was violative of Article 21 and \"as there is no 'law' on the basis of which the same could be justified, it must be struck down as. unconstitutional\". The Court was of tlie view that the other provisions in regulation 236 were not bud as no right of privacy has been guaranteed by the Constitution.\n\nSubba Rao, J. writing for the minority was of the opinion that the word 'liberty' in Article. 21 was c0mprehensivc enough to include privacy also.\n\nHe said that although it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the right is an essential ingredient of personal liberty, that in the iast resort, a perso,1's house where he lives with his family, is his , castle', that nothmg is more deleterious to a man's physical happiness and health than a calculated interference with his privacy and that all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution.\n\nAnd, as regards Article 19(1)(d), he was of the view that that right also was violated. He said that the right under that sub-Article is not mere freedom to move without physical obstruction and observed that movement under the scrutinizing gaze of the policemen cannot be free movement, that the freedom of movement in cl. (d) therefore must be a movement in a free country, i.e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people r of his own choice without any apprehension, subject of course to the\n\n' law 0f social control and that a person under the shadow 'Of surveillance is Gcrtainly deprived of this freedom.\n\nHe concluded by sayin~ that surveillance by domiciliary visits and other acts is •an abridgement of the fundamental right iiuaranteed under Article 19 (l)(d) and under Article 19(1) (a).\n\nHe however did not specificallv consider whether regulation 236 could be justified as a reasonable restriction in public\n\ninterest falling within Arti::le 19(5).\n\nIt was submitted on behalf of the petitioner that right to privacy is itself a fundamental rh!ht and that that ri!!ht is violated as regulation 85 6 provides. for domiciliary visits and other incursions into it. The\n\nqu~tion whether right to privacy is itself a fundamental right flowing . from the other fun:iamental rights guaranteed to a citizen under Part Ill is not easy of S'Olution.\n\nIn Griswold v. Connecticut(!), a Connecticut statute made the use of contraceptives a criminal offence.\n\nThe executive and medical directors of the Planned Parenthood LeaoUe of Connecticut were convicted in the Circuit <Xlurt on a chame of havinQ violated the statute as accessories by , givinQ information. instructhn and advice to married persons as to -the means of preventing conception. The appellate Division of the Circuit Court affirmed and its judgment was affirmed by the Suoreme Court of Errors of Connecticut.\n\nOn appeal the\n\nU l 381 U. S. 479, 510.\n\n1l52\n\nSUPR.EMB .COUR. T R.BPOR TS £197.Sl 3 s.c.R.. ·- Supreme Court of the United States reversed. In an opinion by Douglas, J., expressing view-of five members of the Court, it was held that the statute was invalid as an unconstitutiona! invasion of the r!gh, of privacy of married persons. . He said. that the right of freedom of speech press inc1udes not only the right to utter or to priot but also . the right to disribute, the right to receive, the right to read and that without those peripheral rights the specific right would be less secure and that likewise, the other specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help g.ve them lif~ and substance, that the various guarantees create zones of pri vacy, and that protection against all governmental invasion \"of the sanctity of a man's home and the privacies of life\" was fundamental.\n\nHe further said that the inquiry is whether a right involed \"is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' and that 'privacy is a fundamental personal right, emanating from the totality of the constitutional scheme under which we (Americans) live'.\"\n\nIn his dissenting opinion, Mr. Justice Black berated the majority for discovering and applying a constitutional right to privacy.\n\nHis reading of the Constitution failed to uncover any provision or provi sions forbidding the passage of anl law that might abridge the 'privacy' of individuals. . . . .\n\nIn Jane Roe v. Henry Wade(>), an unmarried pregnant woman who wished to terminate her pregnancy by abortion instituted an . action in the United States District Court for the Northern District of Texas, seeking a declaratory judg ment that the Texas criminal abortion statutes, which prohibited abor tions except with respect to those procured or attempted by medical advice for the purpose of saving the life of the mother, were unconstitutional. The Supreme Court said that although the Constitution of the U.S.A. does not explicitly mention any right of privacy, the United States Supreme Court recognizes that a right of personal pri v:u; y, or a guarantee of certain areas or zones of . privacy, does exist under the Constitution, and \"that the roots of t'12t righ• may be found in the First Amendment, in the. Fourth 11nd Fl( Amendments. in tho penumbras of the Bill of Rights, in the Ninh Amendment, and in the concept of liberty guaranteed by the firs• section of the' Fourteenth Amendment\" and that the ''right to privacy is not absolute.\"\n\nThe usual .starting point in any discu_ssion of the growth' of legal concept of pnvacy, thouh not necessanly the correct one is the famous article, \"The Right to Privacy\" by Charles Warren ai:.d Louis D. Brandeis(•) .. What was truly creative in the article was their insistence that privacy,-the right to be let alone-was an interest at man should be able to :issert directlv and not derivatively from his efforts to protect other mterests.\n\nTo protect man's \"inviolate personality\" against . the intrusive behaviour so increasingly evident\n\n(I) 410 U.S. 113.\n\n(2) See 4 Harvard Law Rev. 193. '\n\nGOVIND v. M. P. STA TE (Matkw, J.) 953\n\nin their time, Warren a; id Brandeis thought that the law should provide· . both a criminal and a private law remedy. \"Once a civilization has\n\nmade a distinction between the 'outer' and the 'inner' man, between the life of the soul and the life of the body, between the spiritual and the macrial, between the sacred and the profane, between the realm of God and the realm of Ca'!Sar, between Church and state, between rights inherent and inalienable and rights that are in the power of . government to give and take away, between public and private, between society ancl solitude, it becomes impossible to avoid. the idea of privacy by whatever name it may be calledthe idea of a 'private space in which man may beccme and remain 'himselr \"(1). .\n\nThere can be no doubt that the mnkers .of our Constitution wlUlted to ensure condi•ions favourable to the pursuit of happiness.\n\nThey certainly realized as Brandeis, J. said in his dissent in Olmstead v.\n\nUnited State( 2 ), the significance of man's spiritual nature. of his feelings and of. his intellect and that only a part of the pain, pleasure, satisfication of life can be found in material things and therefore they must be deemed to have conferred upon the individual as ap.imt the government a sphere where he should be let alone.\n\n\"The liberal individualist tradition has stressed, in particular, three personal ideals, to each of which corresponds a range of 'private affairs'.\n\nThe first is the ideal of personal relations; the second, the Lockean ideal of the politically free man in a minimally regulated society; the third, tlie Kantian. ideal of the morally autonomous man,\n\nacting on principles that he accepts as rational\"(').\n\nThere can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important conn- .\n\ntervai!in~ interest is shown to be superior. If. the Court does find that a claimed rieht is entitled to protection as a fundamental privacy right, a law in:fringing it must satisfy the compelling state interest test. . Then the question would be whether a state interest is of such . paramount impartance as would justify an infringement of the rieht.\n\nObviouslv, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterization of a claimed riehts as a fundamental orivacv rieht would be of far less significance. The ques•ion whether enforcement of morality is a state interest sufficient to iu<>ifv •he infringement of a fundamental privacy right need not be considered for the oumme of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of state.\n\nIndividual autonomy, perhaos the central concern ot any svstem of limited government, is protected in part under our Constitution by\n\n(I) see \"Prl\"va.;-and the Law: A philo•ophfcal pre!ude\" by Milton R. Kon•\n\nvitz in 31 Law & Contemporary Problem• (1966) p. 272, 273.\n\n(2) 277 u. s. 438, 471. .. _ ....\n\n(3) sea B\"!t\"'U19 ••Privacy, Freedom and Respect for Persons\" in 1. Pennock 4. J.\n\nChapmm, Eds .• Priv~ Nomo' XIII, I, 15·16.- :: ~\n\n954 SUPRliM~ COURT REPORTS [197 Sl 3 S.C.R.\n\nexplicit constitutional guaranteea. \"In the application of the Cons_titution our contemplation cannot only be of what has been but :-vhat . may be.\" Time works changes and brings into existence new cond1t1ons.\n\nSubtler and far reaching means of invadings privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the proprieny of judicial reliance on a right that. is not explicit in the Cons titution.\n\nOf course, privacy primarily concerns the ind.ividuals.\n\nIt therefore relates to and overlaps with the concept of liberty.\n\nThe most serious advocate of privacy must confess that there are serious prob1ems of defining the essence and scope of the right.\n\nPrivacy interest in autonomy must also be placed in the context of other ri&hts\n\nand values.\n\nAny right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherh'aod, procreation and child rearing. Tliis catalogue approach to the question is obviously not as instructive as it does not give analytical picture of that distin tive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental ri~J1t implicit in the concept of ordered liberty.\n\nRights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his person1lity shall be free from official interference except where a reasonable basis for intrusion exists. \"Liberty\n\nagainst government\" a phrase coined by Professor Corwin expre .~.cs this idea forcefutly.\n\nIn this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.\n\nAs Ely says: \"There is nothing to prevent one from using the word 'privacy' to mean the freed:im to live one's life without governmental interference.\n\nBut the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case\"('•)\n\nThere are two possible theories for protecting privacy of home.\n\nThe first is that activities in the home harm others only to the extent\n\nthat they cause offence resulting from the mere thought that individuals mi1?ht he engaginv. in such activities and that such' hann' is not constitutionally protectible by the state. The second is that individuals need a plate of sanctuary where they can be free from societal control.\n\nThe importance of such a sanctuary is that individuals can drop the mask. desist for a while from orojecting on the world the imae they want to be accepted a~ themselves, an image that may reflect the values of their peers rather than the realities of their natures(2 ). .\n\nThe right to privacy in any event will necessarily have to go through a process of case-1:_Y-case development.\n\nTherefore, even assuming\n\n(l) s~ \"The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale\n\nL. J. 920, 932.\n\n(2) see 26Standford Law Rev. 1161 at 1187.\n\n'' D\n\nGOVJND v. M. P. STATE (Mathew, I.)_ 955\n\nA tht the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can .charac terize as a fundamental right, we do not think that the right is abso\n\nJute.\n\nThe European Convention on Human Rights, which came Into force on 3-9-1953, represents a valiant attempt to tackle the new problem.\n\nArticle 8 of the Convention is worm citing : (11).\n\n\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n\"2. There shall be P.o interference by a public authority with the exercise of this right except such as i;; in accordance with the law and is necessary in a democratic society in the interests of national security, public safet_y or the economic well-being of the country, for the prevention of disorder or crime, for the protecti,111 of health or morals or for the protection, of the rights ar.d frecd•)ms of others.\"\n\nHaving reached this conclusion, we arc satisfied that drastic inroads directly into the privacy and indirectly into the fundamental rights, of a citizen will be made if Regulations 855 and 856 were to be rc;; d widely. To interpret the rule in harmo:1y with the Constitution is therefore necessary and canalisation of the powers vested in the police by the two Regulations earlier read become3 necessary, if they are to be saved at all.\n\nOur foundiag fathers were 1horoughly opposed to a Police Raj even as our history of the s!ruggle_for freedom has borne eloquent testimony to it. The relevant Article§. •Jf the Constitution we have adverted to earlier, behove us therefore to narrow down the scope for play of the two Regulations. We proceed to give direction and restriction to the application of the. said regulations with the caveat that if any action were taken beyond the boundaries so set, the citizen will be entitled to attack such action as unconstitutional and void.\n\nDepending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits G would always be unreasonable restriction U]'.Y'.ln the right of privacy.\n\nAssuming that the fundamental rights explicitly guaranteed to a citizen have penumbra! zones and that the ril!ht to privacy is itself a fundamental right, that fundamental right must be subject to restriction on t'1e ba<!s of comnell'\"!! n11b.ic in•P.re<t.\n\nA< r<::r!ulation 856 has the force of law, it cannot be said that the fundamental ri!>:ht ' -of. the petitioner under Article 21 has been violated by the provisions H contained in it : for, what is guaranteed under that Article is that no person shall he depri\\l_Cd of his life or personal liberty except by the\n\n(I) see \"Privacy and Human Rights\", ed. A.H. Robertson, p. 176.\n\nprocedure established by 'law'.\n\nWe think that the procedure is reasonable having regard to the provisions of Regulations 853 (c) and 857. Even if we h:old that Article 19(1)(d) guarantees to a citizen a right to privacy in his movement as an emanation from that Article and is itself a fundamental right, the . question Will arise whether regulation 856 is a law imposing reasonable restriction in public interest on the freedom of movement falling within' Article 19 (5); or, even if it be assumed that Article 19(5) does not apply in terms, as the. right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be uphr.ld as valid.\n\nUnder clause (c) of Regulation 853, it is only persons who are suspected to be habitual criminals who will be subjected to domiciliary visits.\n\nRegulation 857 provides as follows :\n\n\"A comparatively short period of surveillance, if effecti vely maintained, should suffice either to show that the suspicion of criminal livelihood was unfounded, or to furnish evidence justifying a criminal prosecution, or action under the security sections.\n\nDistrict Superintendents and their assistance should go carefully through the histories of per .. sons under surveillance during their inspections, and remove from the register the names of such as appear to be earning an honest livelihood.\n\nTheir histories will there upon bCl closed and surveillance discontinued. In the case of person. under surveillance who has been lost sight of and is sti11 untraced, the name will continue on the register for as long as the District Superint .. .ndent considers necessary.\"\n\nSurveillance is also conhned to the limited class of citizens wh<> are determined to lead a criminal life or whose antecedents would reasonably lead to the conclusion that they will lead such a life.\n\nWhen them are two interpretations, one wide and unconstitutional,\n\nthe other narrower but within constitutional bounds, this Court will G read down the overflowing expressions to make them valid. So read, the two regulatjons. are more restricted than counsel fGr the petitioner sought to impress upol) us..\n\nRegulation 8$5, in our view, empowers surveillance only of persons against whom reasonable materials exis.t to induce the opinion that they show a determination, to lead a life of crime-crime in this context being confined to such as involve public H peace or securilly only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperilling safety of\n\nGOVIND v. M. P. HATE (Mathew, J.) 9 57\n\niiociety cannot be regarded as warranting surveillance undr this Regulation.\n\nSimilarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of dariger to community security and. not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer. In truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise these old police regulations verging perilously near unconstitutionality.\n\nWith these hopeful observations, we dismiss the writ petition.\n\nV.P.S.\n\nPefition dismissed.", "total_entities": 102, "entities": [{"text": "STATE OF MADHYA PRADESH & ANR", "label": "RESPONDENT", "start_char": 15, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH & ANR", "offset_not_found": false}}, {"text": "March 18, 1975", "label": "DATE", "start_char": 47, "end_char": 61, "source": "ner", "metadata": {"in_sentence": "March 18, 1975\n\n[K. K. MATHEW, v. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.]"}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 64, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "v. R. KRISHNA IYER", "label": "JUDGE", "start_char": 78, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Madhya Pradesh Police Regulations", "label": "STATUTE", "start_char": 122, "end_char": 155, "source": "regex", "metadata": {}}, {"text": "s. 46", "label": "PROVISION", "start_char": 181, "end_char": 186, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Police Regulations", "statute": "Madhya Pradesh Police Regulations"}}, {"text": "Police Act, 1961", "label": "STATUTE", "start_char": 198, "end_char": 214, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Arts. 19(i)(d) and 21", "label": "PROVISION", "start_char": 233, "end_char": 254, "source": "regex", "metadata": {"linked_statute_text": "Police Act, 1961", "statute": "Police Act, 1961"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 292, "end_char": 299, "source": "regex", "metadata": {"linked_statute_text": "Police Act, 1961", "statute": "Police Act, 1961"}}, {"text": "Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961", "label": "STATUTE", "start_char": 359, "end_char": 443, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Police Act", "label": "STATUTE", "start_char": 1025, "end_char": 1035, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 46(2)", "label": "PROVISION", "start_char": 1076, "end_char": 1084, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961", "statute": "the Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 1092, "end_char": 1102, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Arts. 19(1 )(d) and 21", "label": "PROVISION", "start_char": 1157, "end_char": 1179, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961", "statute": "the Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961"}}, {"text": "s. 46(2)(c)", "label": "PROVISION", "start_char": 1250, "end_char": 1261, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961", "statute": "the Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 1269, "end_char": 1279, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "India", "label": "GPE", "start_char": 2095, "end_char": 2100, "source": "ner", "metadata": {"in_sentence": "Hence, assuming that the right to personal liberty, the right to move freely throughout India and the freedom of speech create an indel'endent fundamental right of privacy as an emanation from them it could not he absolute."}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 2864, "end_char": 2871, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "[1964] 1 S.C.R. 332", "label": "CASE_CITATION", "start_char": 3846, "end_char": 3865, "source": "regex", "metadata": {}}, {"text": "S. 479, 510", "label": "PROVISION", "start_char": 3900, "end_char": 3911, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 113", "label": "PROVISION", "start_char": 3943, "end_char": 3949, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 438", "label": "PROVISION", "start_char": 3988, "end_char": 3994, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 32", "label": "PROVISION", "start_char": 4085, "end_char": 4095, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4103, "end_char": 4124, "source": "regex", "metadata": {}}, {"text": "B A. K. Gupta", "label": "LAWYER", "start_char": 4127, "end_char": 4140, "source": "ner", "metadata": {"in_sentence": "B A. K. Gupta and R. A. Gupta for the Petitioner."}}, {"text": "R. A. Gupta", "label": "LAWYER", "start_char": 4145, "end_char": 4156, "source": "ner", "metadata": {"in_sentence": "B A. K. Gupta and R. A. Gupta for the Petitioner."}}, {"text": "Ram Punjwani", "label": "LAWYER", "start_char": 4178, "end_char": 4190, "source": "ner", "metadata": {"in_sentence": "Ram Punjwani, H. S. Parihar and /. M. Shroff, for the Res pondents."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 4192, "end_char": 4205, "source": "ner", "metadata": {"in_sentence": "Ram Punjwani, H. S. Parihar and /. M. Shroff, for the Res pondents."}}, {"text": "M. Shroff", "label": "LAWYER", "start_char": 4213, "end_char": 4222, "source": "ner", "metadata": {"in_sentence": "Ram Punjwani, H. S. Parihar and /. M. 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"label": "STATUTE", "start_char": 6068, "end_char": 6071, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 456", "label": "PROVISION", "start_char": 6186, "end_char": 6197, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 6198, "end_char": 6201, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 55", "label": "PROVISION", "start_char": 6330, "end_char": 6340, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 6345, "end_char": 6351, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Jatara", "label": "GPE", "start_char": 6405, "end_char": 6411, "source": "ner", "metadata": {"in_sentence": "P.C. and was bound over for a period of one year by SDM, Jatara."}}, {"text": "Section 325", "label": "PROVISION", "start_char": 6498, "end_char": 6509, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "IPC", "label": "STATUTE", "start_char": 6519, "end_char": 6522, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 341", "label": "PROVISION", "start_char": 6567, "end_char": 6578, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 6583, "end_char": 6586, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 21", "label": "PROVISION", "start_char": 9234, "end_char": 9244, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "U.P.", "label": "GPE", "start_char": 9546, "end_char": 9550, "source": "ner", "metadata": {"in_sentence": "regulation in question there was not ' law was based upon a concession made on behalf of the State of U.P. that the."}}, {"text": "Police Regulations were not framed under any of the provisions of the Police Act", "label": "STATUTE", "start_char": 9566, "end_char": 9646, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Police Act", "label": "STATUTE", "start_char": 9769, "end_char": 9779, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.46(2)(d)", "label": "PROVISION", "start_char": 9929, "end_char": 9939, "source": "regex", "metadata": {"linked_statute_text": "Police Regulations were not framed under any of the provisions of the Police Act", "statute": "Police Regulations were not framed under any of the provisions of the Police Act"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 9947, "end_char": 9957, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 19(l)(d)", "label": "PROVISION", "start_char": 10019, "end_char": 10035, "source": "regex", "metadata": {"linked_statute_text": "Police Regulations were not framed under any of the provisions of the Police Act", "statute": "Police Regulations were not framed under any of the provisions of the Police Act"}}, {"text": "Article 21", "label": "PROVISION", "start_char": 10053, "end_char": 10063, "source": "regex", "metadata": {"linked_statute_text": "Police Regulations were not framed under any of the provisions of the Police Act", "statute": "Police Regulations were not framed under any of the provisions of the Police Act"}}, {"text": "Government of Madhya Pradesh", "label": "ORG", "start_char": 10199, "end_char": 10227, "source": "ner", "metadata": {"in_sentence": "So far as the first contentioll, is concerned, we are of the view : that the rerulalions were framed by the Government of Madhya Pradesh under s.46(2) (c) of the Police Act."}}, {"text": "s.46(2)", "label": "PROVISION", "start_char": 10234, "end_char": 10241, "source": "regex", "metadata": {"linked_statute_text": "Police Regulations were not framed under any of the provisions of the Police Act", "statute": "Police Regulations were not framed under any of the provisions of the Police Act"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 10253, "end_char": 10263, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 46(2)", "label": "PROVISION", "start_char": 10265, "end_char": 10278, "source": "regex", "metadata": {"linked_statute_text": "Police Regulations were not framed under any of the provisions of the Police Act", "statute": "Police Regulations were not framed under any of the provisions of the Police Act"}}, {"text": "s.46(2)(c)", "label": "PROVISION", "start_char": 10571, "end_char": 10581, "source": "regex", "metadata": {"linked_statute_text": "Police Regulations were not framed under any of the provisions of the Police Act", "statute": "Police Regulations were not framed under any of the provisions of the Police Act"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 10790, "end_char": 10800, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Police Act", "label": "STATUTE", "start_char": 10959, "end_char": 10969, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 23", "label": "PROVISION", "start_char": 11190, "end_char": 11195, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 12017, "end_char": 12027, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 19(1)(d)", "label": "PROVISION", "start_char": 12158, "end_char": 12174, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 19(l)(d)", "label": "PROVISION", "start_char": 12206, "end_char": 12222, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 21", "label": "PROVISION", "start_char": 12276, "end_char": 12286, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Fh", "label": "JUDGE", "start_char": 12401, "end_char": 12403, "source": "ner", "metadata": {"in_sentence": "The Court said :\n\n\"We have already extracted a passage from the judgment of Fh:ld J. in Munn v. Illinois (1877) 94 U.S. 113, 142, where the learned Jud_ge pointed out that 'life' in the 5th and 14th Amendments of the U.S. Constitution corresponding to Art."}}, {"text": "ld", "label": "JUDGE", "start_char": 12404, "end_char": 12406, "source": "ner", "metadata": {"in_sentence": "The Court said :\n\n\"We have already extracted a passage from the judgment of Fh:ld J. in Munn v. Illinois (1877) 94 U.S. 113, 142, where the learned Jud_ge pointed out that 'life' in the 5th and 14th Amendments of the U.S. Constitution corresponding to Art."}}, {"text": "S. 113, 142", "label": "PROVISION", "start_char": 12442, "end_char": 12453, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 12577, "end_char": 12584, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 12796, "end_char": 12803, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Frankfurter", "label": "JUDGE", "start_char": 13904, "end_char": 13915, "source": "ner", "metadata": {"in_sentence": "The Court then quoted a passage from the judgment of Frankfurter J. in Wolf v.\n\nCo'Vrado(') to the effect that the security of one's privacy against arbitrary intrusion by the police is basic to a free society and that the knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the\n\nia.uthority of the police, did not need 'the commentary of recent h_isfory to b~ con?emned .as inconsistent wi'.h the c?nception of human nghts enshrined m the history and the basic constitutional documents of English-speakinP, peoples."}}, {"text": "S. 25", "label": "PROVISION", "start_char": 14547, "end_char": 14552, "source": "regex", "metadata": {"statute": null}}, {"text": "GOVIND", "label": "PETITIONER", "start_char": 14561, "end_char": 14567, "source": "metadata", "metadata": {"canonical_name": "GOVIND", "offset_not_found": true}}, {"text": "Article 21", "label": "PROVISION", "start_char": 14925, "end_char": 14935, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 15208, "end_char": 15217, "source": "ner", "metadata": {"in_sentence": "Subba Rao, J. writing for the minority was of the opinion that the word 'liberty' in Article."}}, {"text": "Article 21", "label": "PROVISION", "start_char": 15866, "end_char": 15876, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 19(1)(d)", "label": "PROVISION", "start_char": 15915, "end_char": 15931, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 16699, "end_char": 16709, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 19(1)", "label": "PROVISION", "start_char": 16727, "end_char": 16740, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Parenthood LeaoUe of Connecticut", "label": "ORG", "start_char": 17457, "end_char": 17489, "source": "ner", "metadata": {"in_sentence": "The executive and medical directors of the Planned Parenthood LeaoUe of Connecticut were convicted in the Circuit <Xlurt on a chame of havinQ violated the statute as accessories by , givinQ information."}}, {"text": "Suoreme Court of Errors of Connecticut", "label": "COURT", "start_char": 17783, "end_char": 17821, "source": "ner", "metadata": {"in_sentence": "The appellate Division of the Circuit Court affirmed and its judgment was affirmed by the Suoreme Court of Errors of Connecticut."}}, {"text": "S. 479, 510", "label": "PROVISION", "start_char": 17850, "end_char": 17861, "source": "regex", "metadata": {"statute": null}}, {"text": "Douglas", "label": "JUDGE", "start_char": 17981, "end_char": 17988, "source": "ner", "metadata": {"in_sentence": "In an opinion by Douglas, J., expressing view-of five members of the Court, it was held that the statute was invalid as an unconstitutiona!"}}, {"text": "Black", "label": "JUDGE", "start_char": 19201, "end_char": 19206, "source": "ner", "metadata": {"in_sentence": "In his dissenting opinion, Mr. Justice Black berated the majority for discovering and applying a constitutional right to privacy."}}, {"text": "United States District Court for the Northern District of Texas", "label": "COURT", "start_char": 19602, "end_char": 19665, "source": "ner", "metadata": {"in_sentence": "action in the United States District Court for the Northern District of Texas, seeking a declaratory judg ment that the Texas criminal abortion statutes, which prohibited abor tions except with respect to those procured or attempted by medical advice for the purpose of saving the life of the mother, were unconstitutional."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 19916, "end_char": 19929, "source": "ner", "metadata": {"in_sentence": "The Supreme Court said that although the Constitution of the U.S.A. does not explicitly mention any right of privacy, the United States Supreme Court recognizes that a right of personal pri v:u; y, or a guarantee of certain areas or zones of ."}}, {"text": "United States Supreme Court", "label": "COURT", "start_char": 20034, "end_char": 20061, "source": "ner", "metadata": {"in_sentence": "The Supreme Court said that although the Constitution of the U.S.A. does not explicitly mention any right of privacy, the United States Supreme Court recognizes that a right of personal pri v:u; y, or a guarantee of certain areas or zones of ."}}, {"text": "Charles Warren", "label": "OTHER_PERSON", "start_char": 20688, "end_char": 20702, "source": "ner", "metadata": {"in_sentence": "The usual .starting point in any discu_ssion of the growth' of legal concept of pnvacy, thouh not necessanly the correct one is the famous article, \"The Right to Privacy\" by Charles Warren ai:.d Louis D. Brandeis(•) .. What was truly creative in the article was their insistence that privacy,-the right to be let alone-was an interest at man should be able to :issert directlv and not derivatively from his efforts to protect other mterests."}}, {"text": "Louis D. Brandeis(•", "label": "OTHER_PERSON", "start_char": 20709, "end_char": 20728, "source": "ner", "metadata": {"in_sentence": "The usual .starting point in any discu_ssion of the growth' of legal concept of pnvacy, thouh not necessanly the correct one is the famous article, \"The Right to Privacy\" by Charles Warren ai:.d Louis D. Brandeis(•) .. What was truly creative in the article was their insistence that privacy,-the right to be let alone-was an interest at man should be able to :issert directlv and not derivatively from his efforts to protect other mterests."}}, {"text": "S. 113", "label": "PROVISION", "start_char": 21067, "end_char": 21073, "source": "regex", "metadata": {"statute": null}}, {"text": "Brandeis", "label": "JUDGE", "start_char": 22056, "end_char": 22064, "source": "ner", "metadata": {"in_sentence": "They certainly realized as Brandeis, J. said in his dissent in Olmstead v.\n\nUnited State( 2 ), the significance of man's spiritual nature."}}, {"text": "s. 438, 471", "label": "PROVISION", "start_char": 24132, "end_char": 24143, "source": "regex", "metadata": {"statute": null}}, {"text": "Corwin", "label": "OTHER_PERSON", "start_char": 26048, "end_char": 26054, "source": "ner", "metadata": {"in_sentence": "Liberty\n\nagainst government\" a phrase coined by Professor Corwin expre .~.cs this idea forcefutly."}}, {"text": "Ely", "label": "OTHER_PERSON", "start_char": 26210, "end_char": 26213, "source": "ner", "metadata": {"in_sentence": "As Ely says: \"There is nothing to prevent one from using the word 'privacy' to mean the freed:im to live one's life without governmental interference."}}, {"text": "European Convention on Human Rights", "label": "RESPONDENT", "start_char": 27777, "end_char": 27812, "source": "ner", "metadata": {"in_sentence": "The European Convention on Human Rights, which came Into force on 3-9-1953, represents a valiant attempt to tackle the new problem."}}, {"text": "3-9-1953", "label": "DATE", "start_char": 27839, "end_char": 27847, "source": "ner", "metadata": {"in_sentence": "The European Convention on Human Rights, which came Into force on 3-9-1953, represents a valiant attempt to tackle the new problem."}}, {"text": "Article 8", "label": "PROVISION", "start_char": 27906, "end_char": 27915, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 21", "label": "PROVISION", "start_char": 30126, "end_char": 30136, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "A.H. Robertson", "label": "OTHER_PERSON", "start_char": 30361, "end_char": 30375, "source": "ner", "metadata": {"in_sentence": "A.H. Robertson, p. 176."}}, {"text": "Article 19(1)(d)", "label": "PROVISION", "start_char": 30547, "end_char": 30563, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 30844, "end_char": 30854, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 19(5)", "label": "PROVISION", "start_char": 30891, "end_char": 30904, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}]}
{"document_id": "1975_3_958_962_EN", "year": 1975, "text": "PASUPULETI VENKATESW ARLU\n\nTHE MOTOR & GENERAL TRADERS March 18, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KRISHNA IYER, JJ.]\n\nAppellate Jurisdicti'on, exercise of-Court, if can mould reliefs in appeal iy taking into arcount facts subsequent to i11stz'tution of proceedings.\n\nAndhra Pradesh Buildirrgs (Lease, Rent and Eviction) Control Act, 1960, Section 10(3)(iii) (a) a11a (b)-Revis/011 to High Court against order of whole sale remillal to trial Court-High Court, if can take into account subsequent fact and dismiss the eviction petition also.\n\nThe appellant, a landlord of a large building, had leased out in separate portions his building to several tenants. One of such tenants is the respondent. Tho former resolved to start a businr:ss in automobile spares and claimed eviction of c\n\nthe respond, nt by Rent <:ontrol proceedings, under~. 10(3)(iii)(a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 19.60.\n\nThe petition was resiste.rl and the Rent Controller dismissed the petition. Tue appeal by the landlord failed but, in revision, the High Court chose to remand the case to the appellate authority. The appellate authority, after hearing par ties, remitted the whole case to the trial Court for fresh disposal in accordance with certain dirctions and, after allowing parties to lead evidence.\n\nInstead of finishing the case at the trial Court level, the landlord preferred a revision to the High Court on the ground that a wholesale rcmittal, as agaimt calling for a finding on a specific point, was illegal. The High Court held that if the fac:t of the landlord having come into possession during the pendency of the proccedingll of Shop No. 2 is to be taken into account, then clearly the petition is no longer maintainabl.e under section 10(3) (iii) of the Act. The inevitable sequel was the dismissal, not only of the civil revision, but also of the eviction petition.\n\nIn this appeal by special leave, :.i was contended for the appellants : (i) It was illegal for the High Court to have taken cognisance of subsequent events; and (ii) Once thi: High Court held-as it did-that the appellate tribunal acted illegally in remit ing the whole case to the Rent Controller, it could not go further to dismiss his whole eviction proceedings.\n\nAllowing the appeal partially,\n\nHELD : (i) For making the light or rei; nedy, claimed by the party just and F meaningful as also legally and factuallv in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The lar recovery of another accommodation by the landlord, during the pendency of the case, has as the Hi&l1 Court twice pointed out, a mMerial bearing on the right to evict, in view of the inhibition written into s. 10(3)(iii) itself. The High Court was right in taking G into consideration the facts which came into being subsequent to the commencement of the proceedings. [960 GH] ·\n\nLachmeshwar Prasad Shukul v. Kes/iwar Lal Chaudhuri [1940] F.C.R. 85; Patterson v. State of Alabama, 294 U.S. 600, 607 and Mirnesota v. National 1\"e\" Co. 309 U.S. 551, 555, referred to.\n\n(ii) It is unfair to drive parties to a new litigation of unknown duration anJ H therefore, in the special circumstances of this case, it is directed that : (a) the revision before the High Court shall stand dismissed; (b) the Rent Controlle1: will take note of the subsequent development disabling the landlord from seeking eviction on whicb there is already an adverse finding by the High Court; (c) the\n\nPASUPULETT v. MOTOR TRADERS (Krishna Iyer, J.) 959\n\nA landlord be allowed to amend his petition if he has a case for eviction on any other !egally permissible ground; and (d) the parties be given fair and full op portunity to file additional pleadings and lead evidence thereon.\n\nBut the subse quent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High Court, cannot be canvassed ever again. That finding of legal disability cannot be reopend. [961 G-H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2120 to 2122 B of 1972,\n\nAppeals by special leave from the judgment and order dated the 7th April 1972 of the Andhra Pradesh High Court in C.R.P. No. 1576-78 of 1971.\n\nK. S. Ramamurthi, M. S. Narayana Achari and C. S. S. Rao, for C the appellant.\n\nK. R. Choudhury and K. Rajendra Chaudhry, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-Once the facts are stated fairly, one is left to wonder what substantial issue of law deserving of adjudication by the Supreme Court survives at all in these appeals.\n\nWe may straightway proceed to state, with brevity, the case of the appellant presented for our scrutiny and make short shrift of it as it merits little more.\n\nThe appellant, a landlord of a large building, had leased out in separate portions his building to several tenants.\n\nOne of such tenants is the respondent.\n\nThe former resolved to start a business in automo bile spares and claimed eviction of the respondent by Rent Control proceedings, under s. 10(3) (iii) (a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.\n\nThe petition was resisted and the Rent Controller dismissed the petition.\n\nThe appeal by che landlord failed but, in revision, the High Court chose to remand the case to the appellate authority.\n\nThe litigation lengthened further because the latter, after hearing parties, rerilitted the whole case to the trial Court for fresh disposal. in accordance with some directions and, after allowing parties to lead evidence.\n\nInstead of finishing the case at the trial court level, the landlord repeated a revision to the High Court on the perhaps technically correct stand that a wholesale remittal, as against calling for a finding on a specific point, was illegal.\n\nWhile hearing protracted arguments it came to the ken of the court that certain material events of fatal import to the maintainability of the eviction proceedings had come to pass and so it decided to mould the relief in the light of these admitted happenings.\n\nThe learned judge observed :\n\n\"If the fact of the landlord having come into possession during the pendency of the proceedings of Shop No. 2 is to be taken into account, as indeed it must be, then clearly t'he peti tion is no longer maintainable under Section 10(3) (iii) of the Act, as the requisite condition for the invoking of that provision has ceased to exist viz., that the landlord was net occupying a non-residential building in the town. 'Building',\n\nSUPREME CQURT REPORTS\n\n[1975] 3 S.C.R.\n\nof course means a portion of a building. .As the prerequisite for the entitlement of the petitioner to institute and continue a petition has ceased to eXJst, it must follow that ABA No. 5/1967 is no longer maintainable and must be dismissed.\"\n\nThe inevitable sequel was the dismissal, not only of the civil revision, but also of the eviction petition. Thus, after a marathon forensic battle lasting over six years, the landlord lost even the flickering hope of success before the trial Court as a result of supererogatory revision to the High Court. It is against this adverse decision he has, by special leave, come to this Court.\n\nTwo submissions were advanced by Sri K. S. Ramamurthy to salvage his client's case.\n\nHe argued that it was illegal for the High Court ro have taken cognisance of subsequent events, disastrous as they proved to be, Secondly, he urged that once the High Court held-as it didthat the appellate tribunal acted illegally in remitting the whole case to the Rent Controller, it could not go further to dismiss his whole eviction proceedings, a misfortune heavier than would have been, had he not moved the High Court at all.\n\nWe feel the submissions devoid of substance.\n\nFirst about the )urisdiction and propriety vis a vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to ow: processual jurisprudence that the right to relief must be judged to exist\n\nas on the date a suitor institutes the legal proceeding.\n\nEqually clear is E . the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the tis has come to court and has a fundamental impact on th': right to relief tor the manner of mould· ing it, is brought diligently to the notice of the tribunal, lt cannot blink at it or be blind to events which stultify or render inept the decrctal remedy.\n\nEquity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote subs- F tantial justice-subject, of course, to the abence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power -exists, absent other special circumstances repelling resort to that course in law or justice. ulings on this point arc legion, even as situations for applications of this equitable rule arc myraid.\n\nWe affirm the propooition that for making the C right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realitie8, the court can, and in ; many .cases must. take cautious cognisance of events and developments / ubsequcnt to the institution of the proceeding provided the rules of fairv ness to both sides are scrupulously obeyed.\n\nOn both occasions the High Court, in revision, correctly took this view.\n\nThe later recovery of another accommodation by the landlord, during the pendency of the H case, has as the High Court twice pointed out, a material bearing on the right to evict in tjew of the inhibition written into s. 10(3 )(iii) itself.\n\nWe lre not disposed to disturb this approach in law or finding of fact.\n\n. PASUPULETI v. MOTOR TRADERS (Krishna Iyer,!.) . 961\n\n The law we have set out is of <mcient vintage.\n\nWe will merely refer to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri(!) which is a leading case on the point.\n\nGwyer C.J., in the above case, referred to the rule ado?ted by the Supreme Court of the United States in Patterson v. State of Alabama(2) :\n\n''We have frequently held that in the exerc.!se of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of .the case as justice requires.\n\nAnd in determining what justice does require, the Court is bound to consider any change, either in fact or.in law, which has supervened since the judgment was entered.\"\n\nand said that that view of the Court's powers was reaffirmed once again in the then recent case of Minnesota v. National Tea Co.(3). Sulaim:m\n\nJ., in the same case( 1) relied on English cases and took the view that an appeal is by way of a re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the ap, peal was heard. (emphasis, ours). Varadachariar J., dealt with the same point a little more comprehensively. We may content ourselves with excerpting one passage which brings out the poi_gt luminously (at p. 103) : .\n\n\"It is also on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a . case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against.\" The High Court, in this case, in the concluding stages slightly selfcontradicted itself and observed : 'the civil revision petition cannot be entertained' and proceeded further to state : 'It will not be desirable that I should exercise my discretion in directing an amendment of the petition'.\n\nIn conclusion, the Court did interfere in revision by setting aside the order of remittal to the Rent Controller. and dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight.\n\nThe learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement to start his own business by his obscure observation : 'If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent event of his 111aving come into possession of a portion of the building'. 'We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that : (a) the re\"ision before the High Court shall stand dismissed; (b) the Rent Controller will take note of the subsequent development disabling the landlord from seeking evic-, • tion on which there is already an adverse finding by the High Court; H\n\n(I) [1940} F.C.R. 85.\n\n(2) 294 U.S. 600, 607.\n\n(3) 309 u. s. 551, 555. 15-564SupCl/75\n\n96~\n\nSUPREME COURT REPORTS [19751 -3 s.c:R.\n\n( c) the landlord be allowed to amend his petition if he has a case for eviction on any other legally permissible ground; and ( d) the parties be given fair and full opportunity to file additional pleadings anq lead evidence thereon. But we make it clear that the subsequent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High Court, cannot be canvassed over again. That finding of legal disability cannot be reopened.\n\nWe keep open for enquiry only grounds, 1£ any, which may reasonably be permitted by amendment if they are of any relevance or use for eviction.\n\nWith these observations we partially allow the appeal as indicated above and direct the parties to bear their respective costs.\n\nV.M.K.\n\nAppeal partly allowed.", "total_entities": 31, "entities": [{"text": "PASUPULETI VENKATESW ARLU", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "PASUPULETI VENKATESWARLU", "offset_not_found": false}}, {"text": "THE MOTOR & GENERAL TRADERS", "label": "RESPONDENT", "start_char": 27, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "THE MOTOR & GENERAL TRADERS", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 71, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 88, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "v. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Control Act, 1960", "label": "STATUTE", "start_char": 333, "end_char": 350, "source": "regex", "metadata": {}}, {"text": "Section 10(3)(iii)", "label": "PROVISION", "start_char": 352, "end_char": 370, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1960", "statute": "Control Act, 1960"}}, {"text": "section 10(3)", "label": "PROVISION", "start_char": 1784, "end_char": 1797, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(3)(iii)", "label": "PROVISION", "start_char": 2976, "end_char": 2989, "source": "regex", "metadata": {"statute": null}}, {"text": "[1940] F.C.R. 85", "label": "CASE_CITATION", "start_char": 3201, "end_char": 3217, "source": "regex", "metadata": {}}, {"text": "S. 600, 607", "label": "PROVISION", "start_char": 3256, "end_char": 3267, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 551, 555", "label": "PROVISION", "start_char": 3309, "end_char": 3320, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 3772, "end_char": 3784, "source": "ner", "metadata": {"in_sentence": "(ii) It is unfair to drive parties to a new litigation of unknown duration anJ H therefore, in the special circumstances of this case, it is directed that : (a) the revision before the High Court shall stand dismissed; (b) the Rent Controlle1: will take note of the subsequent development disabling the landlord from seeking eviction on whicb there is already an adverse finding by the High Court; (c) the\n\nPASUPULETT v. MOTOR TRADERS (Krishna Iyer, J.) 959\n\nA landlord be allowed to amend his petition if he has a case for eviction on any other !", "canonical_name": "Krishna Iyer"}}, {"text": "K. S. Ramamurthi", "label": "OTHER_PERSON", "start_char": 4491, "end_char": 4507, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi, M. S. Narayana Achari and C. S. S. Rao, for C the appellant.", "canonical_name": "K. S. Ramamurthi"}}, {"text": "M. S. Narayana Achari", "label": "LAWYER", "start_char": 4509, "end_char": 4530, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi, M. S. Narayana Achari and C. S. S. Rao, for C the appellant."}}, {"text": "C. S. S. Rao", "label": "LAWYER", "start_char": 4535, "end_char": 4547, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi, M. S. Narayana Achari and C. S. S. Rao, for C the appellant."}}, {"text": "K. R. Choudhury", "label": "LAWYER", "start_char": 4571, "end_char": 4586, "source": "ner", "metadata": {"in_sentence": "K. R. Choudhury and K. Rajendra Chaudhry, for the respondent."}}, {"text": "K. Rajendra Chaudhry", "label": "LAWYER", "start_char": 4591, "end_char": 4611, "source": "ner", "metadata": {"in_sentence": "K. R. Choudhury and K. Rajendra Chaudhry, for the respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 4678, "end_char": 4690, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-Once the facts are stated fairly, one is left to wonder what substantial issue of law deserving of adjudication by the Supreme Court survives at all in these appeals.", "canonical_name": "Krishna Iyer"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 4814, "end_char": 4827, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-Once the facts are stated fairly, one is left to wonder what substantial issue of law deserving of adjudication by the Supreme Court survives at all in these appeals."}}, {"text": "s. 10(3)", "label": "PROVISION", "start_char": 5315, "end_char": 5323, "source": "regex", "metadata": {"statute": null}}, {"text": "Control Act, 1960", "label": "STATUTE", "start_char": 5401, "end_char": 5418, "source": "regex", "metadata": {}}, {"text": "Section 10(3)", "label": "PROVISION", "start_char": 6597, "end_char": 6610, "source": "regex", "metadata": {"statute": null}}, {"text": "K. S. Ramamurthy", "label": "OTHER_PERSON", "start_char": 7516, "end_char": 7532, "source": "ner", "metadata": {"in_sentence": "Two submissions were advanced by Sri K. S. Ramamurthy to salvage his client's case.", "canonical_name": "K. S. Ramamurthi"}}, {"text": "s. 10(3 )(iii)", "label": "PROVISION", "start_char": 10002, "end_char": 10016, "source": "regex", "metadata": {"statute": null}}, {"text": "Gwyer", "label": "JUDGE", "start_char": 10320, "end_char": 10325, "source": "ner", "metadata": {"in_sentence": "Gwyer C.J., in the above case, referred to the rule ado?ted by the Supreme Court of the United States in Patterson v. State of Alabama(2) :\n\n''We have frequently held that in the exerc.!se of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of .the case as justice requires."}}, {"text": "Supreme Court of the United States", "label": "COURT", "start_char": 10387, "end_char": 10421, "source": "ner", "metadata": {"in_sentence": "Gwyer C.J., in the above case, referred to the rule ado?ted by the Supreme Court of the United States in Patterson v. State of Alabama(2) :\n\n''We have frequently held that in the exerc.!se of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of .the case as justice requires."}}, {"text": "Sulaim", "label": "JUDGE", "start_char": 10975, "end_char": 10981, "source": "ner", "metadata": {"in_sentence": "Sulaim:m\n\nJ., in the same case( 1) relied on English cases and took the view that an appeal is by way of a re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the ap, peal was heard. ("}}, {"text": "Varadachariar", "label": "JUDGE", "start_char": 11275, "end_char": 11288, "source": "ner", "metadata": {"in_sentence": "Varadachariar J., dealt with the same point a little more comprehensively."}}, {"text": "S. 600, 607", "label": "PROVISION", "start_char": 13216, "end_char": 13227, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 551, 555", "label": "PROVISION", "start_char": 13241, "end_char": 13252, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_963_966_EN", "year": 1975, "text": "36 3\n\nRAJ.KUMAR v.\n\nUNION OF. INDIA & ORS.\n\nMarch 19, 1975\n\n[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]\n\nCentral Civil Services (Temporary Service) Rules 1965-Proviso to rule 5(1) -Retrospectil'e Amendment-Effect w.\n\nThe services of the appellant, who was a: Government servant, were terminated forthwith and he was ordered to be.paid a month's pay and aliowances calculated at the same rate at which he was drawing them immediately before the date on which the order of termination was served on him or, as the case may be. tendered to him. Having failed in departmental representations, the appellant filed a writ petition in the High Court. When the petition was before the High Court it was not brought to the notice of that court that the proviso to\n\nsubr. (1) of.r. 5 of the Central Civil Services (Temporary Services) Rules 1965 wa~ amended with retrospective effect from May 1, 1965. The High Court dismissed the petition in limine and granted certificat@ relying on the decision\n\nof this Court tn R.M.S. v. K. V. Gopinath which was not brought to its notice when the petitioner was dismissed.\n\nThe amendment provided that the services of any Government servant may be terminated forthwith and on such termination he shaU be entitled to claim a sum equivalent to the amount of his pay plus a11owances for the period of the notice at the same rates at which he waos drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short of one month.\n\nDismissing the appeal, HELD : (I) The effect of the amendment is that on and from May 1, 1965 as also Cin the date of the dismissal of the a:ppellant_it was not obfigatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of notice at the rate at which he was drawing them immediately before the termination of the services or as tl)e caS:.e. may be for the period by which such notice falls short. The Government servant is only ntitled to claim the amount. The effect of the amendment !s that the dedsion in Gopinatlz's case no longer holds good. [965 B-C] ( 2) There is no doubt that the rule is a valid rule becal!lse it is now well established that rules made under the proviso to Art. 309 of the Constitution are legislative in character and, therefore, can' be given effect to retrospectively.\n\n[965 CJ\n\n(3) Once a law is given retrospective effect as from a particular date all actions taken under that law even before the amendment was made would be deemed to have ben taken under the law as amended and there could be really no question of having to validate any action al.ready taken provided it is subsequent to the date from which the amendment was given retrospective effect.\n\nThe question of the particular form of the validation would always depend on the circumstances of a case and no general formula can be devised for all circumstances. [965 H; 966 AJ In the in:; tant case the action taken. against the appellant was on a date subsequent to the date on which the amended rule took effect and, therefore, that action being in accordance with the amended rule, is a legally valid action and there is no need to have a validating provision. [966 BJ\n\nPritlzvi Mills v. Broach Municipality [1970J 1 S.C.R. 388, held inapplkable.\n\n( 4) When action is taken against a government servant under the relcvnt rules, which enable the authorities concerned to terminate his temporary services\n\nwithout assigning any reason, the Court would not go into the reasons which led to the services being terminated. [966 DJ\n\nSUPREME COURT REPORTS £19751 3 s.c.R.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1730 of 1972.\n\nFrom the judgment and order dated the December 6, 1971 of the Delhi High Court in Civil Writ Petition No. 1261 of 1971.\n\nM. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N.\n\nGoyal, for the appellant.\n\nF. S. Nariman, Additional Solicitor General for India and S. P.\n\nNayar, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nALAGIRISW, AM:r, J.--The appellant was appointed as Airport Tick<:t Clerk in the Civil Aviation Department of the Government of India on 14.8.1967.\n\nOn 15.6.1971 his services were terminated 'forthwith' and it was directed that he shall be paid a sum equivalent to the amount of pay and allowances for a period of one month (in lieu of the period of notice) calculated at the same rate at which he was drawing them immediately before the date on which the order was served on or, as the case may be, tendered to him.\n\nBut the pay and allowances were not paid to him at the same time as the service of the order of termi nation of his services.\n\nHis appeal against the termination as well as representations having failed he filed a writ petition out of which this appeal arises.\n\nThe High Court of Delhi dismissed the writ petition in limine ruid this appeal has been filed in pursuance of a certificate granted by the High Court because of the decision of this Court in R.M.S. v. K. V. Gopinath( 1) of which that Court was not aware when it dismissed the petitioner's petition.\n\nIt was not brought to the notice of the High Court that the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules 1965 had been amended with retrospective effect from 1st May, 1965. The rule as now amended reads: ·\n\n\"<:. Termination of temporary service--\n\n(1) (a) The services of temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the . appointing authority to. the Government i.ervant; G\n\n(b) The period of such notice shall be one month;\n\nProvided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall. . be entitled to claim a sum equivaleiat to the amount of his pay plus allowances for the period of the notice .at the same rates at which he was drawing them -------\n\n(!) [1972] 3 S.C.R. 530.\n\nRAJ KUMAR v. UNION (Alagiriswami, J.)\n\nimmediately before the termination of the services or as the case may be for the period by which such notice falls shor_t of one month.\" ·\n\nThe effe1.:t of this amendment is that on 1st May 1965 as also on 15.6.1971, the date on which the appellant's services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay aiad allow'ances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the.. period by which such notice falls short. The Government servant concerned is. only entitled to claim the sums hereinbefore mentioned. Its effect iS that the decision of this Court in Gopinath's case (supra) is no ldager good law.\n\nThere is no doubt that this rule is a valid rule because it it now well established that rules made under the proviso to Article\n\n309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decisions of the Delhi High Court dismissing the appellant's writ petition is correct and this appeal will have to be dismissed.\n\nBut it was argued by Mr. Bhandare appearing on behalf of the appellant that there is no validating provision in the rule as now amended and therefore the intention \"of the Government in making the amendment canti.10t be validly given effect to.\n\nFor this purpose he relied upon the decision of this Court in Prithvi Mills v. Broach Munic. (1) and in particular the following observations therein:\n\n\"Sometiines this is done by re-enacting retrospectively a valid and legal taxing provision and the'a by fiction making the tax already collected to .stnnd under the re-enacted law.\n\nSometimes the legislature gives its own meaning and interpretati1>n of the law under which the tax was collected and by legislative fiat makes the new meaning bindi',1g upon c0urts.\n\nThe legislature may follow any one method or all of them and while it does so it/may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must. be within the competence of the legislature and legal and adequate to attuin the object or validation. If the legislature has the power over the subject-matter and competence to make a valid law, it ca'D. at any time make such a valid law, and make it retrospectively so as to bind even past\n\ntransactions.\"\n\nThis argument proceeds upon 11; rn!scom.prehension of the . aove observation and the effect of a validatmg statute. Once a law isl given retrospective effect as from 11 particular date all actions taken undeI.. the Act eve~1 before the amendment was made would be deemed. to have been taken under the Act as amended and there could be really no question of having to validate any action alrady taken provided\n\n(1) [1970] l S.C.R. 388.\n\n~66\n\nSUPREME CQ.QRT REPORTS [19751 3 s.c.R.\n\nit is subsequent to the date from which the amendment is given retros- A pective effect.\n\nThe question of the particular form of the validation would always depend \"\" the circumsta•aces of a case and no general formula can be devised 10r all circumstances. It is enough to .say that in the present case the action taken against the appellant was on a date subsequent to the date on which the amended rule takes effect and therefore that action being in accordance with the amended rule is iegally\n\na valid <icti'Jn and there is no need to have a validating provision in res.\n\nB pect thereof.\n\nIt was then argued by Mr. Bha:ndare that the matter has been disposed of in li111ii.e by the High Court and there are certain other\n\napccts which may have to be considered, and therefore the appeal shouU ~10t 1:ie dismissed but that the writ petition should be directed to be disposed of afresh by the Delhi High Court after considering the C other questions raised ii; the w:-it petition.\n\nThere are only two questions raised by the petitioner in his. writ petition. One is that certain persons junior to him have been continued in service while his services have been termhrntcd and that it offends Article 14.\n\nThe termination of the appellant's services was not on the ground of retrenchment.\n\nThe question of offending Article 14 does not therefore arise.\n\nWhen action is taken against him under the relevant rules which enable the D authorities concerned to terminate his temporary servi; e without assigning any reason the Court would not go into the reasons which led to the appellant's services being terminated.\n\nThe other point raised. in the writ petition is that action terminating the appellant's services was mala fide. We 5ee no substance in this contention.\n\nThe action is said to be mala fide because after the appellant's services were terminated certain other persons have been appointed.\n\nIt is not alleged E that those persons exercised their influence and had the petitioner's services terminated in oroer to provide them with posts.\n\nNaturally when a vacancy ari$CoS by the termination of services of an employee oth;:r persons would have to be appointed to take his place.\n\nThis would nnt show any ma/a fides.\n\nThe apprnl i~ therefore dismissed but in the circumstances there F will be no order as to costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 27, "entities": [{"text": "3\n\nRAJ.KUMAR", "label": "PETITIONER", "start_char": 3, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "RAJ KUMAR", "offset_not_found": false}}, {"text": "UNION OF. INDIA & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "March 19, 1975", "label": "DATE", "start_char": 44, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "March 19, 1975\n\n[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 61, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 81, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "May 1, 1965", "label": "DATE", "start_char": 877, "end_char": 888, "source": "ner", "metadata": {"in_sentence": "5 of the Central Civil Services (Temporary Services) Rules 1965 wa~ amended with retrospective effect from May 1, 1965."}}, {"text": "Gopinatlz", "label": "OTHER_PERSON", "start_char": 2066, "end_char": 2075, "source": "ner", "metadata": {"in_sentence": "s that the dedsion in Gopinatlz's case no longer holds good. [", "canonical_name": "Gopinatlz"}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 2242, "end_char": 2250, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 3745, "end_char": 3761, "source": "ner", "metadata": {"in_sentence": "From the judgment and order dated the December 6, 1971 of the Delhi High Court in Civil Writ Petition No."}}, {"text": "M. C. Bhandare", "label": "OTHER_PERSON", "start_char": 3804, "end_char": 3818, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N.\n\nGoyal, for the appellant."}}, {"text": "Govind Das", "label": "OTHER_PERSON", "start_char": 3820, "end_char": 3830, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N.\n\nGoyal, for the appellant."}}, {"text": "C. P. Lal", "label": "OTHER_PERSON", "start_char": 3832, "end_char": 3841, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N.\n\nGoyal, for the appellant."}}, {"text": "Kapil Sibal", "label": "LAWYER", "start_char": 3843, "end_char": 3854, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N.\n\nGoyal, for the appellant."}}, {"text": "A. N.\n\nGoyal", "label": "LAWYER", "start_char": 3859, "end_char": 3871, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N.\n\nGoyal, for the appellant."}}, {"text": "F. S. Nariman", "label": "LAWYER", "start_char": 3893, "end_char": 3906, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional Solicitor General for India and S. P.\n\nNayar, for the respondent."}}, {"text": "S. P.\n\nNayar", "label": "LAWYER", "start_char": 3951, "end_char": 3963, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional Solicitor General for India and S. P.\n\nNayar, for the respondent."}}, {"text": "ALAGIRISW", "label": "JUDGE", "start_char": 4030, "end_char": 4039, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nALAGIRISW, AM:r, J.--The appellant was appointed as Airport Tick<:t Clerk in the Civil Aviation Department of the Government of India on 14.8.1967."}}, {"text": "High Court of Delhi", "label": "COURT", "start_char": 4814, "end_char": 4833, "source": "ner", "metadata": {"in_sentence": "The High Court of Delhi dismissed the writ petition in limine ruid this appeal has been filed in pursuance of a certificate granted by the High Court because of the decision of this Court in R.M.S. v. K. V. Gopinath( 1) of which that Court was not aware when it dismissed the petitioner's petition."}}, {"text": "1st May, 1965", "label": "DATE", "start_char": 5313, "end_char": 5326, "source": "ner", "metadata": {"in_sentence": "It was not brought to the notice of the High Court that the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules 1965 had been amended with retrospective effect from 1st May, 1965."}}, {"text": "[1972] 3 S.C.R. 530", "label": "CASE_CITATION", "start_char": 6055, "end_char": 6074, "source": "regex", "metadata": {}}, {"text": "15.6.1971", "label": "DATE", "start_char": 6322, "end_char": 6331, "source": "ner", "metadata": {"in_sentence": "The effe1.:t of this amendment is that on 1st May 1965 as also on 15.6.1971, the date on which the appellant's services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay aiad allow'ances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the.. period by which such notice falls short."}}, {"text": "Gopinath", "label": "OTHER_PERSON", "start_char": 6833, "end_char": 6841, "source": "ner", "metadata": {"in_sentence": "Its effect iS that the decision of this Court in Gopinath's case (supra) is no ldager good law.", "canonical_name": "Gopinatlz"}}, {"text": "Article\n\n309", "label": "PROVISION", "start_char": 7002, "end_char": 7014, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhandare", "label": "OTHER_PERSON", "start_char": 7293, "end_char": 7301, "source": "ner", "metadata": {"in_sentence": "But it was argued by Mr. Bhandare appearing on behalf of the appellant that there is no validating provision in the rule as now amended and therefore the intention \"of the Government in making the amendment canti.10t be validly given effect to."}}, {"text": "Bha", "label": "OTHER_PERSON", "start_char": 9676, "end_char": 9679, "source": "ner", "metadata": {"in_sentence": "It was then argued by Mr. Bha:ndare that the matter has been disposed of in li111ii.e by the High Court and there are certain other\n\napccts which may have to be considered, and therefore the appeal shouU ~10t 1:ie dismissed but that the writ petition should be directed to be disposed of afresh by the Delhi High Court after considering the C other questions raised ii; the w:-it petition."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 10251, "end_char": 10261, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 10374, "end_char": 10384, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_967_992_EN", "year": 1975, "text": "NARAYAN GANESH DASTANE\n\nSUCHETA NARAYAN DASTANE\n\nMarch 19, 1975\n\n(Y. V. CHANDRACHUD, P. K. GOSWAMI AND N. L. UNTWA1LIA, JJ.]\n\n8 Hindu Marriage Act.:._Sectio11 IO(l)(b) and 23(1)(a) (bl-Meaning of cmelty-Burden of proof. in matrimonial matters-Whether beyond reasonable doubt-Condonation of cruelty-Whether sexual intercourse amounts to condoi; ation-Whetlzer condo11atio11 is conditional-Revival of cruelty.\n\nCode 'of Civil Procedure-Sectio11 100 and 103-Powers of Hig/z Court in second appeu:.\n\nEvidence Act-Section 3-Proof, meaning of.\n\nThe. :ippellant husband filed a petition for annulment of marriage on the ground of fraud, for divorce on the ground of unsoundness of mind and for judicial separation on the ground of cruelty. The appellant and respondent possess high educational qualificat!ons and they were married in 1956. Two children were born of the marriage one in 1957 and the other in 1959.\n\nThe Trial Court rejected the coatention of fr:iud and unsoundness of mind.\n\nIt, however, held the wife guilty of cruelty and on that ground passed a decree for judicial separation. Both sides went in appeal to the District Court which • dismissed the husband's appeal and allowed the wife's. The husband then filed a Second Appeal in the High Court. The High Court dismissed thllt appeal.\n\nOn appeal to this Court.\n\nHELD. (i) Normally this Court would not have gone into evidence esP::- cia!Iy as the High Court itself could not have gone into the evidence m\n\nseond appeal. sction JOO of the C.P.C. restricts the jurisdiction of the High Court in second appeal to questions of law or to substantial errors or defects in the procedure which might possibly hllve produced error or defect in the decision of the case upon merits. The High Court came to the conclusion that both the courts below had failed to apply the correct principles of law in determining the issue of cruelty. Accordingly the High Court proceeded to consider evidence for itself. Under s. 103 C:P.C. the High Court can determine any issue of fact if the evidence on the record is sufficient but if the High Court takes upon iiself the duty of determinng an issue of fa,:t, its powers to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordin; irily subject. The limits of that power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court.\n\nWhile appreciating evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the line that divides an inference from guess work.\n\nNormally this Court would have remanded the matter to the High Court for a fresh cons!deration of the evidence but since the proceedings were pending for 13 years the Court itself went .into the evidence. [973 F-974 HJ\n\n(ii) The burden of proof in a matrimonial petition must lie on the petitioner because ordinarily the burden lies .on the party which affirms a fact, not on the party which denied it.\n\nThis principle accords with commonsense, as it is much easier to prove a positive than a negative. The petitioner must, therefore. prove that the respondents had treated him with cruelty within the meaning of s. JO(J)(b) of the Act.\n\nBut the High Court was wrong in holding that the petitioner must prove his case beyond a reasonable doubt. The normal rule which governs civil proceedings is that a tact is said tO be established if it is proved by preponderance of probabilities. Under s. 3 of the . Evidence Act a fact is said to be proved when the court either believes it to exist or if\n\nrnnsiders its existence so probable th:it a prudent man ought, in the cicum stances, to act upon the supposition that it exists. The first step in this process is to fix the p; orabilities. the second to weigh them. The impossible is weeded\n\nout in the first stage, the improbable in the second.\n\nWithin the wide range of probabilities the Court has often a difficult .choice to make but it is this choice which ultimately determines where the preponderani:e of probabilities lies. Important issues like the status of parties demand closer scrutiny than those like the loan on a promissory note. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving enquiries into issues of quasi-criminal nature. It is wrong to import such considerations in trials of a purely civil nature. Neither s .. 10 nor s. 23 of the Hindu Marriage Act requi.res that the petitioner must prove his case beyond reasonable doubt.\n\nS. 23 confers on the court the po_wer to pass a decree if it is satisfied on the matters mentioned in Clauses (a) to {e) of that Section.\n\nConsidering that proceedings under the Act are essentially of a civil hature the word 'satisfied' must mean satisfied on a preponderance of probabilities and not satisfied beyond a reasonable doubt. The society has a stake in the institut'on of marriage and, therefore, the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bear'.ng on the need to have the clearest proof of an allegation before it is\n\nacc~, itPd as a ground for. the dissolution of marriage, it has no bearing on the &tandard of proof in matrimonial cases. In England, a view was at one time taken that a petitioner in a matrimonial petition must establish his or her case beyond a reasonable doubt but the House of Lords in Blyth v.\n\nEllyth has held that the grounds of divorce or the bars to .the divorce may be proved b'y a preponderance of probability. The High Court of Austr?-1ia has also taken a similar view. (97 5 A-976 Bl\n\n(iii) On the quest!on of condonation of cruelty, a specific provision of a specific enactment has to be interpreted, namely s. lO{l)(b). The enquiry, D therefore,' has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life; limb or health or as to ive rise to a reasonable apprehension of such a danger. It is risky to rely on English decisions in this field although awarenes5 of foreign decisions can be a useful guide irr interpreting our laws.\n\nThe apprehension of the petitioner that it will be harmful or injurious to live E with the other party has to be reasonable.\n\nIt is, howe.ver, wrong _to import the concept of a reasonable man as known to the law of negligence for judging matrimonial relations. The question is not whether the conduct would be cruel to a reasonable person or a person d average or normal sensibilities but whether it would have that effect on the aggrieved spouse. That which may be cruel to one person may be .aughed off by another and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. The Court has to deal not with an ideal husband and an ideal wife but with the particular man and woman before it. The F only rider is that of s. 23 (1) (a) of the Act that the relief prayed for can be decreed only if the petitioner is not taking advantage of his own wrong.\n\n[977 D-G; 978 C-F; 979 A]\n\n(iv) Acts like the tearing of the Mangal Sutra, locking out the husband when he is due to arrive from the office, rubbing of chilly powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on . the light at night and sitting by the bedside of the husband merely to nag him are actswhich tend to destroy the legitimate ends and objects of matrimony. The •:onduct of wife amounts to cruelty within the meaning of s. 10(1) (b) of the Act.\n\nThe threat that she would 'put an end to her own life or that she will set the house on fire, the threat that she will make the husband lose his job and have the matter published in newspapers and the persistent abuses and inmlts hurled at the husband and his parents are all of so grave an order as to imperil the appellant's sense of personal safety, mental . happiness, job satisfaction and reputation. [985 B-E]\n\n(v) In any proceeding under the Ac\\, whether defended or not, the relief prayed for can be decreed only if the petitioner has not condoned the cruelty.\n\nThe wife did not take up the plea of condonation in her written statement.\n\nThe Trial Court did not frame any issue of condonation,. The District Court\n\nN, G. DASTANE v. SUC{l_ETA (Chandrachud, /.) 969\n\ndid not address itself on the question of condonation since it did not find the condu:t of the wife to be cruel. The High Court held that the conduct of the wife was not cruel and in any case it was condoned. S. 23 (1 )(b) casts obligation on the court to consider the question of condonation. Condonation means forgiveness of the matrimonial offence and restoration of spouses to the same position as he or she occupied before the matrimonial offence was committed. Cruelty generally does not consist of a single isolated act. It eonsists in most, ca5Cs of a series of 11cts spread over a period of t@.e. Law does not require that at the first appearanci;: of a cruel act, the other spouse must leave the matrimonial home lest the continued coha.rbitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws. The evidence on condonation consists in th1s case in , the fact that spouse led a normal sexual life despite the various acts of cruelty. This is not a case where the spouse after separation indulge in stray acts of sexual intercourse in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation but if during cohabitation the spouses uninlluenced by the conduct of the offending spouse, lead a life of intimacy which characterised normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could b~ the result of a single act of sexual intercourse and tha.t such an act could be a stark animal act unacompanied by the nobler graces of marital life. Sex plays an imJ>?rtant role in married life and cannot be separated from other factors which lend to matrimony a sense of fruition a.nd fulfilment. Therefore, evidence showing that the spouse led a normal sexual life even after serious acts of cruelty by one s.ir<>use is proof that the other spouse •:ondoned that cruelty. Intercourse in circumstances as obtained here _would raise a strong inference of condonation.\n\nThat inference stands uncontradicted, 'the husb11nd not 'having explained the circumstances in which he came to lead and live a normal sexual life.\n\n[985 G-987 BJ\n\n(vi) But condonation of a matrimonial offen:e is not to be likened to a Presidential pardon which once granted wipes out the guilt beyond the possibility, of revival.\n\nCondonation is always subject to the imolied condition that the offending spouse, will not com.mit a further matrimonial offence either of the same variety as the one condoned or of any other variety. No matrimonial offence is erased by condonation. It is obscured but not obliterated. Condoned cruelty can, therefore, be revived. For revival of condonation it is not necessary that the conduct should be 'enough by itself to found a degree for judicial separation. The wife in not ailowing the husband access to the childre11 cannot be said to have revived the earlier cruelty since the children were of tender age and the c; mly person who could escort them had left or had to leave the matrimonial home for good. The subsequent conduct of the wife has to be !ISSessed in the context in which the husband behaved. The husband persistently accused the wife of insanity and refused to maintain her. In that context, the alleg!!tions made by the wife in her letter to the Government cannot revive the original cause of action though it is true t.hat more serious the original offence the less grave need be' the subsequent act to. constitute revival. .\n\n[987 C; 988 C-D, G-H; 991 E-H]\n\nHeld, dismissing the appeal,\n\nThat the .wife was guilty of cruelty but the husband condoned it and the\n\nsubseqnf conduct of the wife was not such as to amount to revival of the original cause of action. [992 B-C] CML APPELLATE ]UJUSDICTION : Civil Appeal No. 2224 of 1970.\n\nFrom the judgment and order dated the 19th February, 1969 of the Bombay High C':>urt in Second Appeal No. 480 of 1'68 ..\n\nV. M. Tarkunde, S. Bhandare, P. H. Parekh ain.d Manju laitely, for the appellant.\n\nVl. S. Desai, S. B. Wad alnd Jaya/Jhree Wad, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J .-This is a matrimonial dispute arising out of a petition filed by the appellant for annulment of his marriage with the respondent or alternatively for divorce or for judicial separation. The annulment was sought on the ground of fraud, divorce on the ground of unsoundness of mind and judkial separation on the ground of cruelty .. ·\n\nThe spouses possess high academic qualifications and each one claims a measure of social r-espectability and cultural sophistry.\n\nThe evidern:e shows some traces of these.\n\nBut of this there need be no doubt : the voluminous record which they have collectively built up in the case contains a fair' reflection of their rancour and acrimony. ·\n\nThe appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc. in C Agriculture from the Poona University. He was sent by the Government of India to Australia in the Colombo Plan Scheme.\n\nHe obtained his Doctorate in Irrigation Research from an Australian Univerity and returned to India in April, 1955.\n\nHe worked for about 3 years as an Agricultural Research Officer and in October, 1958 he left. Podaa to take charge of a new post as an Assistant Professor of Agronomy in the Post-Graduate School, Pusa Institute, Delhi.· At present be is said fo D be working on a foreign assignment. His father was a solicitor-cum lawyer practising in Poona.\n\nThe respondent, Sucheta, comes from Nagpur but she spent her formative years mostly in Delhi.\n\nHer father was transferred to Delhi in 1949 as an Under Secretary in the Commerce Ministry of the Government uf India and she came to Delhi along with the rest of the family. . E She passed her B.Sc. from the Delhi University in 1954 and spent a year in fapan where her father was attached to the Indian Embassy. After the rift in her marital relations, she obtained a Master's Degree in Social Work.\n\nShe has done field work in Marriage Conciliation and Juvenile Delinquency .. She is at present working in the Commerce and Industry Ministry, Delhi.\n\nIn April, 1956 her parents arranged her marriage with the appellant But before finalising the proposal, her father-B. R. Abhyankar-- wrote two letters to the appellant's father saying in the first of these that the respondent \"had a little misfortune before going to Japan in that she had a bad attack of sunstroke which affected her mental condition for sometime''.\n\nIn the second letter which followed at an interval of two days, \"cerebral malaria\" was mentioned as an additional reason of the mental affectation.\n\nThe letters stated that after a course of treatment at t'he Yeravada Mental Hospital, she was cured : \"you find h~:r as she is today''.\n\nThe respondent's father asked her appellant's father to discuss the matter, if necessary, with the doctors of the Mental Hospital or with one Dr. 'P. L. Deshmukh, a relative of the respondent's mother.\n\nThe letter was written avowdcly in order that the appellant and his people \"should not be in the dark about an important episode\"\n\nin the life of the rnspondent, which \"'fortunately, _had ended happily''.\n\nDr. Deshmukh confirmed what was stated in the letters and being content with his assurance, the appellant and his father made no enqui-\n\nN. G. DASTANE v. SUCHETA (Chandradhud, J.) 971\n\nA ries with the Yeravada Mental Hospital.\n\nThe marriage was performed at Poona on May 13, 1956.\n\nThe appellant was then 27 and the respondent 21 years of age.\n\nThey lived at Arbhavi in District Belgaum from June to October, 1956.\n\nOn November 1, 1956 the appellant was transferred to Poona where the two lived together tilll958.\n\nDuring this period a girl named Shubha was born to them on March 11, 1957.\n\nThe respondent delivered in Delhi where 'her parents lived and returned to Poona in June, 1957 after an absence, normal on such occasions, of about 5 inonths.\n\nIn October, 1958 the appellant took a job in the Pusa Institute of Delhi.\n\nOn March 21, 1959 the second daughter, Vibha, was born.\n\nThe respondent delivered at Poona where the appellant's parents lived and returned to Delhi in August, 1959. Her parents were living at this time in Djakarta, Indonesia.\n\n• In January, 1961, the respondent went to Poona to attend the marriage of the appellant's brother, a doctor by profession, who has been givcn'an adoption in the Lohokare family.\n\nA fortnight after the marriage, on February 27, 1961 the appellant who had also gone to Poonu for the marriage got the respondent examined by Dr. Seth, a Psychiatrist in charge of the Yeravada Mental Hospital.\n\nDr. Seth probably wanted adequate Llata to make his diagnosis and suggested that he would like lo have a few sittings exclivcly with the respondent.\n\nFor reaso;1s good or bad, the respondent was averse to submit herself to any such scrutiny.\n\nEither she herself or both she and the appellant decided that she should stay for some time with a relative of hers, Mrs. Gokhalc.\n\nOn the evening of the 27th, she packed her tit-bits and the appellaI't reached her to Mrs. Gokhalc's house.\n\nThere was no consultation thereafter with Dr. Seth.\n\nAccording to the appellant, she had promised to se Dr. Seth but she denies that she made any such promise .. She believed that the appellant was building up a case that she was of unsound mind and she W!\\S being lured to walk into that trap.\n\nFcbraa,> 27, 1961 was the last that they lived together.\n\nBut on the d\"; of pailing she was three months in t'he family way.\n\nThe third ch .. le, agai1~ ;1\n\ngir~ named Pratibha was born on August 19, 1961 when hi!: p8rc•1cs were in the midst of a marital crisis.\n\nThings had by the, n come to an impossible pass.\n\nAnd close relatives instead of offering wise counsel were fanni•ag the fire of discord that was devouring the mariage. A gentleman called Gadre . whose letter-head shows an \"M.A. (Phil.) M.A. (Eco.) LL.B.\", is a maternal uncle of the respondent.\n\nOn March 2, 1961 he had written to the appellant's father a pseudonymous letter now proved to be his, full of malice and sadism.\n\nHe wrote :\n\n\"I on my part consider myself to be the father of'Brahmadev'. . ......... This is only the beginning.\n\nFrom the . spark of your foolish and half-baked egoism, a big conflagration of family quarrels will break out and all will perih therein; This image of the mental agony suffered by all your kith and kin gives me extreme happiness. . . . . . You worthless -person, who cherishes a desire to spit on my face, now behold that all the world is going to spit on your old cheeks.\n\nSo why should I loose the opportunity of giving you a few severe slaps on your cheeks and of fisting your ear. It is my earnest desire that the father-in-law should beat your son with foot-ware in a public place.\" ·\n\nOn March 11, 1961 the appellant returned to Delhi all alone. Two days later the respondent followed him but she went straight to her parents' house in Delhi. On the 15th, the appellant wrote a letter to the police asking for protection as he feared danger to his life from the respondent's parents and relative.s.\n\nOn the 19th, the respondent saw the appellant but that only gave to the parties one more chance to give vent to mutual dislike and distrust. After a brief meeting, she left the broken home for good. On the 20th, the appellan_t once again wrote to the police renewing his request for protection.\n\nOn March 23, 1961 the respondent wrote to the appellant complaining against his c:onduct and asking for money for the maintenance. of herself and the daughters.\n\nOn May 19, 1961 the respondent wrote a letter to the Secretary, Ministry of Food and Agricultur.e, saying that the appella:nt had deserted her, that he had treated her with extreme cruelty and asking that the Government should make separate provision for ber . .maintenance. On March 25, her statement ':Vas recorded by an Assistant Superintendent of Police, in which she alleged desertion and ill-treatment by the appellant. Further statvnents were recorded by the police and the Food Ministry also followed up respol,1dent's letter of\n\n, May 19 but ultimately nothing came out of these complaints and crosscomplaints-.\n\nAs stated earlier, the third daughter, Pratibha, was born on August 19, 196!. On November 3, 1961 the appellant wrote to respondent's falber compllJining of respondent's conduct and expressing regret that not even a proper invitation was issued to him when the naming ceremony of the child was performed.\n\nOn December 15, 1961 the appellant wrote to respondent's father stating that he had decided to go to the court for seeking sq:w-ation from the respondent. The proceedings out of which this appeal arises were instituted on February 19, 196Z.\n\nThe parties are Hindus but we do not propose, as is commonly done and as has . \\)cen done in this case, to describe the respondent as a \"Hindu wife\" in contrast to non-Hindu wives as if women professing this or that particular religion are exclusively privileged in the matter of good sense, loyalty and conjugal kindness. Nor .shall we refer to the appellant as a \"Hindu husband\" as if that species unfailipgly projects the. image of tyrant husbands.\n\nWe propose to consider the evidence on its merits, remembering of course the peculiar habits, ideas, susceptibilities and expectations of persons belonging to the strata of society to which thes.-, two belong.\n\nAll circumstances which CODStitute the occasion err settiq for. the conduct complained of have releVance but\n\nwe think that no wumpti.On. can be made that. respondeM is the oppressed and appellant the QPl)l'essor. The evidence m any case ought to\n\nbear a secular examination. The appe'llal\\t iasked f0r annulment of his marriage by a decree of nullity under section 12(1) (c) of 'The Hindu Marirage Act', 2S of\n\nN. G. DAST.ANE v. SUCHETA (Chandrachud, !.) 973\n\n1955, (\"The Act\") on the ground that his consent to the marria11:e was obtained by fraud.\n\nAlternatively, he asked.for divorce under section 13 ( 1) (iii) on the ground that the respondent was incurably of unsound mind for a continuous period of ot less than three years immediately preceding the presentation of the petition. Alternatively, the appellant asked for judicial separation under section 10 (1) (b) on the ground <hat the respondent had treated him with such cruelty as to cause a reasonable apprehension in his mind that it would be harmful or injurious for him to live with her.\n\nThe appellant alleged that prior to tlie marriage, the nispondent was treated in the Yeravada Mental Hospital for Schizophrenia but her father fraudulently represented that she was treated for sun-stroke and cerebral malaria. The trial court rejected this contention. It also rejected the contention that the respondent was of unsound mind.\n\nIt, however, held that the respondent was guilty of cruelty and on that grouni it passed a decree for judicial separation.\n\nBoth sides went in appeal to the District Court which dismissed the appellant's appeal and allowed the respondent's.._ with the result that the petition filed by the appellant stood wholly dismissed.\n\nThe appellant then filed Second Appeal No. 480 of 1968 in the Bombay High Court. A learned single Judge of that court dismissed that appeal by a judgment dated February 24, 1969. This Court granted to the appellant special leave to appeal, limited to the question of judicial separation on the ground of cruelty.\n\nWe are thus not concerned with the question whether the appellant's consent to the marriage was obtained by fraud or whether the respondent had been of unsound mind for the requisite period preceding the presentation of the petition. The decision of the High Court on those questio',1s must be treated as final and can not be reopened.\n\n In this appeal by special leave, against the judgment rendred by the High Court in Second Appeal, we would not have normally per-: mitted the parties to take us through the evidence in the case. Sitting in Seond Appeal, it was not open to the High Court itself to reappreciate evidence. Section 100 of the Code of Civil Procedure restricts the jurisdiction of the High Court in Second appeal to questions of law or to substantial errors or defects in the procedure which may possibly have prOduced error or defect in the decision of the case upon the merits. But the High Court came to the conclusion that both the courts below had \"failed to apply the correct principles of law in determining the issue of cruelty\". Accordingly, the Hih Court proceeded to consider the evidence for itself and came to the conclusion independently that the appellant had failedto establish that the respondent had treathint with cruelty. A careful consideratio.n of the evidence by the High Court ought to be enough assurance that the finding of fact Is correct\n\nand it is not customary for this Court in appeals under Article 136 of the Constitution to go into minute details rl evidence and weieb them one a1minst the other, as if for the firqt time. Disconcertingly, this normal process is beset with practical difficultfes.\n\nSUPREME J:OURT REPORTS ll 97 SJ 3 s.c.R.\n\nln judging of the conduct of the respondent, the High Court assumed that the words of abuse or insult used by the respondent\n\n\"could not have been addressd in vacuum.\n\nEvery abuse, insult, remark or retort must have been probably in exchange for remarks and rebukes from the husband ............ a court is bound to consider the probabilities and infer, as I have done, that they must have been in the context of the abuses, insults, rebukes and remarks made by the husband and without evidence on the record wjth respect to the conduct of the husband in response to which the wife behaved in a particular way on each occasion, it is difficult, if not impossible to draw inferences against the wife.\"\n\nWe find this approach difficult to accept.\n\nUnder section 103 of the Code of Civil Procedure, the High Court may, if the evidence on the record is sufficient, determine any issue of fact nece~a.ry for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of section 100.\n\nBut, if the High Court takes upon itself the duty to determine an issue of fact its power to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordinarily subject.\n\nThe limits of that power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court. While appreciating evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the line that divides an inference from guesswork. If it is proved, as the High Court thought it was, that the respondent had uttered: words of abuse and insult, the High Court was entitled to infer that she had acted in retaliation, provided of course there was evidence, direct or circumstantial, to justify such an inference.\n\nBut the High Court itself felt that there was no evidence on the record with regard to the conduct of the husband in response to which the wife could be said to have behaved in the particular manner.\n\nThe High Court reacted to this siuation by saying that since there was no evidence regarding the conduct of. the husband, ''it is difficult, if not impossible, to draw inferences against the wife\". If there was no evidence that flle husband had provoked the wife's utterances, no inference could be drawn against the husband.\n\nThere was no question of drawing any inferences against the wife because, according to the High Court, it was established on the evidence that she had uttered the particular words of abuse and insult.\n\nThe _approach of the High Court is thus erroneous and its fiadings are vitiated.\n\nWe would have normally remanded the matter lo the High Court for a fresh consideration of the evidence but this proceeding has been pending for 13 years and we thought that rather than delay the decision any further, we should undertake for ourselves the task which the High Court thought it should undertake under section 103 of the Code.\n\nThat makes it necessary to consider th~ evidence in the case.\n\nN. (;. DAST.ANE v. 'SUCHETA ( Chandrachud, J.) 975\n\nBut before doing so, it is necessary to clear the ground 'of certain misconceptions, especially as they would appear to have intluencedthe\n\njudgment of the High Court. . First, as to the nature of.burden of proof which rests on a petitioner in a matrimonial petition under the Act.\n\nDoubtless, the burden must lie on the petitioner to establish his or her case for, C?rdinarily, the .bujden lies on the party which affirms a fact, not on the'party which denies it.\n\nThis principle accords with commonsense 'as it is so much earier to prove a positive than a negative. The petitioner must therefore prove that the responoent . has treated him with cruelty within the meaning of section 10(1) (b) .of the A.ct.\n\nBut does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt?\n\nIn . other ', words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order l0 judge whether the burden has been discharged ? .\n\nThe normal rule which governs civil proceedings is that a fact can be said to be estabilshed if it is proved by a preponderance of probabilities.\n\nThis is for the reason that under the Evidence Act, section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.\n\nThe belief regarding the existence of a fact may thus be founded on a balance of probabilities.\n\nA prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he tinds that the preponderance is in favour of the existence of the particular fact.\n\nAs a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved.\n\nThe first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle.\n\nThe impossible is weeded out at the first stage, tbe improbable at the second.\n\nWithin the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities Jie3.\n\nImportant issues like those which affect the status of parties demand a closer scmtiny than those like the !Dan on a promissory note : \"the nature and gravity of an issue necessarily cietermines the manner of attaining reasonable satisfaction of the truth of the issue\" ( l) ; or as said by Lord Denning, \"the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear\" (2).\n\nBut whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.\n\nProof beyond reasonable doubt is proof by a higher standard which generally governs criminal . trials or trials involving inquiry into issues of a quasi-criminal nature.\n\nA criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable,\n\n(I) Per Dixon, J. in Wright v. Wright {1948) 77 C.L.R. 191 at p. 210.\n\n(2) Blyth-;. Blyth, [1966] 1 A.E.R. 524 at 536.\n\nnot a vascillating, mind cannot find where the . preponderance:: lies, . a A . doubt arises regarding the existence of the fact to be proved and .the ·\n\nbenefit of such reasonable doubt goes to. the accused. ' It is wrong to import such considerations in' trials of a purely civil nature. . ·.\n\n~ . . . Neither •ectio~ 10 ofthe Act which enuil\\erates the grounds .'n which a petition for judicialseparation may be Presented nor section 23 which governs the jurisdiction of the court to pass a decree in any pro- B ceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt; Section 23 confers on the court the power to pass a decree if it is \"satisfied\" on.matters. mentioned in clauses (a) to (e) of the section.\n\nConsidering that proceedings under. the Act are essentially of a civil nature, the word \"satisfied\" must mean \"satisfied on a prepd.:iderance of probabilities'.' and not '.'rntisfied beyond a reasonable doubt''. Section 23 does not alter the standard of proof in C civil cases. · ·\n\n. The ntlsconception regarding the standard, f proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a \"matrimonial offence\", Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has: a stake in the institution of marriage and there-. fore the erring spouse is treated not as a mere defaulter but as an. offender. But this social philosophy; though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground fpr the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases. . ' . . .\n\nIn Enand, a view was at one time taken that the petitioner in a m:itrhnorual petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth(1), the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonatlcin are concerned, \"the case, Jike any civil case, may be proved by a preponderance of probability\". The High Court of Austraila in Wright v. Wright('), has also taken the view that \"the civil and not the criminal standard of persuasion applies to matrimonial causes, includ- ing issue~ of adultery\" •. The Hiizh Court was therefore in error in hold~ ing that the petitioner must establish the charge of cruelty \"beydnd reasonable doubt''. The High Court adds that \"This must be in accor . dance with the law of evidence\"; but we are not clear as to the implications of this observation.\n\n Then, as regards the meaninji of \"Cruelty''. The High Court on this question begins with the decision in Moonshee Bazloor Rubeem v.\n\nShamsoonnissa Begum(8), where the Privy Council observed : ' ·\n\n\"The Mohomedan law, on a question of what is legal\n\ncruelty between Man and Wife, would probably not differ materially from our own of which one of the most recent ex- H posit!on is the fo)J.owing :~ 'There must be actual violence\n\n(I.) [196(;1 A. E.R. S24 at S36. ,\n\n(2) 1948, 77 C.L.R. 191at210.\n\n(3) II Moore's Indian Appeals SSI.\n\nN. G. DASTANE V. SUCHETA ·(ChandrMJzud, J.) 977\n\nof such a character as to endanger personal health or safely; or there Must be a .reasonable apprehension 01 it'.\"\n\nTi1~ High Court then refers to the decisions of some of the Indian Courts to illustrate ''The march of the Indian Courts with the Englishs Courts\" arid cites the following passage from D. Tolstoy's ''The Law and Practice of Divorce and Matrimonial Causes\" (Sixth Ed., p: 61):\n\n\"Cruelty which is a ground for dissolution of marriage may be defined as willul and unjustifiable .:onduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.\" ·\n\nThe High Court concludes that \"Having regard to these prmctples and the entire evide.,1ce in the.case, in my judgment, I find that none of tbe.\n\nacts complained of against the respondent can (:le considered to be so sufficiently grave and weighty as to b~ described as cruel according to the matrimonial law.\"\n\nAn awareness of foreign decisions could be a useful asset in interpreting our own laws.\n\nBut it has to be remembered that we have to interpret in this case a specific provision of a specific enactment, namely, section 10(1) (b) of the Act.\n\nWhat constitutes cruelty must depend upon the terms of this statute which provides : . . . \"10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party...:.. ·\n\n(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;\"\n\n1 he inquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it wil! be harmful or injurious .for him to live\n\nwith the respondent. Jt is not necessary, as under the English law, that the cruelty must be of such a character as to cause \"danger\" to life, limb or health or as to give rise to a reasonable apprehension of such a danger.\n\nClearly, danger to life, limb or health or a reasonable apprehcn>ion of jl is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to Jive with the other.\n\n The risk of relying on English decisions in this field may be shown by the Icarnd Judge's reference to a passage from Tolstoy (p. 63) in which the karned author, citing Horton v. Horton( I), says : ·\n\n\"Spouses take each other for better or worse, and it is not enough to show that they find life_ together impossible, even if there results injury to health.\" ~~\n\n(I) (1940] P. 187. 16-564 Sup. Cl/7S\n\nJ1 the danger to health arises merely from the fact that the spouses find it impossible lo live together as where one of the parties sn.:iws an attitude of indifference to the other, the charge of cruelty may perhaps fail.\n\nBut under section 10(1) (b), harm or injury to health, repmation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty.\n\nPlainly, what we must determine 1s not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonabk: apprehension in his mind that it will be harmful or injurious for him to live with the respondent.\n\nOne other matter which needs to be clarified is that though under section 10 ( 1) (b), the apprehension of the petitioner that it will be harmfu/, or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import Lhe concept of a reasonable man as known to the law of negligence for judgmg of matrimonial relations.\n\nSpouses are undoubtedly supposed and expected to conduct their joint venture as best as they mig:1t but it is no function of a court inquiring into a charge of cruelty to philosophise on the modalities of married life.\n\nSome one may want to keep late hours to finish the day's work and some one may want to get up early for a morning round of golf.\n\nThe court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. \"The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determmed primarily by its effect upon the particular person complaining of the acts.\n\nThe question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse.\n\nTha' which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.\"(!) The Court has to deal, not with •a.n ideal hu<band and a•a ideal wife .(assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a mattimonial court for, even if they may not be able to drown their differences. their ideal attitudes may help them overlook or gloss over mulual faults and failures. As said by Lord Reid\n\ni~1 his speech in Gollins v. Gollins(2).\n\n\"In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence.\n\nWe are dealing with this man and this woman and the fewer a priori assumptions we make about them the better.\n\nIn cruelty cases one can hardly ever even start with a presumption that the parties a;.ereasonable people, because it is bard to imagine anv cruelti case ever arising if both the spouses think and behave as reasonable people.\" We must therefore try and understand this Dr. Dastane and his wife Sucheta as nature has made them and as they have shape~ their lives.\n\n(1) American Jurisprudence, 2nd Ed., Vol. 24, p. 206.\n\n(2) [1963] 2 A .E.R. 966, 970.\n\nN. G. DASTANE v. SUCHETA (Chandrachud, !.) 979\n\nThe op\\y rider is the interdict of section 23(l)(a) of the Act that the relief prayed for can be decreed only if the court is satisfied that the petitioner is not in any way taking advantage of bis own wrong.\n\nNot otherwise.\n\nWe do not propose to spend time on the trifles of their married life.\n\nNumerous jncidents have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored. It is in th;; con' ext of such trivialities that one says that spouses take each other for better or worse. In many marriages each party can, if it so wills,\n\ndiscover many a cause for complaint but such grievances arise mostly from temperamental disharmony.\n\nSuch disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage.\n\nWe will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas.\n\nThe spouses parted company on February 27, 1961, the appellant filed his petition on February 19, 1962 and the trial began in September. 1964.\n\nThe 3t years' separation must naturally have created many more misunderstandings and further embitterment.\n\nIn such an atmosphere, truth is a common casualty and therefore we consider it safer not to accept tl; e bare word of the appellant either as to what the respondent said or did or as to the genesis of some of the more serious incidents.\n\nThe evidence of the respondent too would be open to the same criticism but the explanation of her words and deeds, particularly of what she put in cold print, must come from her oral word and that has to be examined with care.\n\nThe married life of these spouses is well-documented, almost incredibly documented.\n\nThey have reduced to writing what crossed their minds and the letters which they have written to each other bear evidence of the pass to which the marriage had come.\n\nSome of these were habitually written as the first thing in the morning like a morning cup of tea while some were written in the silence of mid-night soon after the echo of harsh ·.vords had died down.\n\nTo think that this young couple contd indulge in such an orgy of furious letter-writing is to have to deal with a problem out of the ordinary for it is seldom that a husband and wife, while sharing a common home, adopt the written word as a means of expression or communication.\n\nThe bulk of the correspondence is by the wifo who seems to have a flair for letter-writing.\n\nShe writes, in some style and as true as \"The style is the man\", her letters furnish a clue to her personality.\n\nThey are a queer mixture of confessions and opprobrious accusations. It is strange that almost every one connected with thi~ couple h'ls a penchant for writing. The wife, apart from her voluminous letters, has written an autobiographical account of her unfortunate experiences in the Yeravada Hospital, calling it \"Mee Antaralat Tarangat Asta.,\n\n(\"while I was floating in space\").\n\nTh~ husband's father idealised the Shiva-Parvati relationship in a book called : \"Gauriharachai Goad Kahani\" (\"The sweet story of Gaurihar\").\n\nQuite a few of the wife's relatives including a younger sister of hers and of eourse her maternal\n\nuncle have set their pen to paper touching some aspect or the other of her married life. Perhaps, it was unfortunate that the promised milknnium that did not come began with a letter. That was the letter of Apnl 25, 1956 Which t11e wn'c's lather wrote to the husband's father while the marriage negotiations were in progress.\n\nThe marriage took place on May 13, 1956.\n\nNothing deserving any serious notice happened till August, 1959\n\nxcept that the letters Exs. 556, 238, 243 and 244 show that quite frequently the respondent u:sed to get into fits of temper and say things for which she would express regret later. In the letter Ex. 556 dated November 23, 1956 she admits to having behaved \"'very badly\"; in Ex. 238 dated March 26, 1959 she admits that she was behaving like an ''evil star\" and had harassed the appellant; in Ex. 243 dated May 5, l 959 she says that she was aware of her \"lack of sense\" and asks for forgiveness for having insulted the appellant, his parents, his sister and her husband; and in Ex. 244 dated May 22, 1959 she entreats the appellant that he houlid not feel guilty for the insults hurled by her at his parents.\n\nThe period fr-om August 195~> to March 1960 was quite critical and the correspondence covering that period shows that an innate Jack of self-control had driven the respondent to inexorable conduct.\n\nBy the letter. Ex. 256 dated February 16, 1960 the appellant complained to the respondent's father who was then in Indonesia that the respondent kept on abu5ing him, his parent and sister and that he was extremely unhappy. The appdlant says in the letter that differences between a husband and wife were understandable but that it was impossible to tolerate the respondent constantly accusing him and his relatives of wickedness.\n\nThe appellant complains that the respondent used to say that the book written by his father should be burnt to ashes, that the ilPPellant hould apply the ashes to his forehead, that the whole Dastane family was utteriy mean and that she wished that his family may be mrerly ruined.\n\nThe appellant was gravely hurt at the respondent's allegation that his fath.:r's 'Sanad' had been once forfeited.\n\nThe appellant tells the respondent's father that if he so desired he could ask her whether anything stated in the Jetter was untrue and that lie had conveyed to her what he was stating in the letter. It may be stated that the respondent admits that the appellant had shown her this Jetter before it v.as posted to her father.\n\nOn March 21. 1960 the respondent wrote a letter (Ex. 519\\ to the appellant's parents admitting the truth of the allegations made by the appellant in Ex. 256.\n\nOn June 23, 1960 the respondent made a noting in her own hand tating that she had accused the appellant of heing a person with a beggarly luck, that she had said that the food eaten at l11s house, instead of heing digested would cause worms in the stomach and that she had given a rbrl'at : \"murder hall be avenged wltl\\ murder''.\n\nDuring June 1, 1960 to December 15, 1960 the marital relations were subjected to a stress and strain which ultimately wrecked the marriage.\n\nIn about September, 1960 the appellant's father probably offered to mediate and asked the appellant and the respondent to submit to him theii' respt', ctive complaints in writing. . The appellant's bill of complaints is at Ex. 426 dated October 23, 1960.\n\nThe letter much\n\nN. G. DASTANE v. SUCHETA ( Chandrachud, J.) 981\n\ntoo long to be reproduced, contains a sorry tale.\n\nThe gist of the more unportant of the appellant's grievances m regard to the period prior to June, 1960 is this : (1) The respondent used to describe lhe appellant's\n\nmoher as a. boorish woman; (2) On the day of 'Paksha' (the day 011 whrch oblations are offered to ancestqrs) she used_ to abuse the ancestors of the appellant; (3) She tore off the 'Mangal-Sutra'; (4) She beat the daughter Shubha while she was running a high temperature of 104';\n\n( 5) One night she started behaving as if she was 'possessed'. She tore off .the Mangal-Sutra once again and said that she w:ill not put it on agam; and ( 6) She used to switch on the light at midnight and sit by the husband's bedside nagging him through the night, as a result he literally prostrated himself before her on several occasions.\n\n'Jhe gist of the incidents from May to October, 1960 which the appellant describes as 'a period of utmost misery' is this. ( l) The respondent would indulge in every sort of harassment and would blun out anything that came to her mind; (2) One day while a student l)f the appellant called Godse was sitting in the outer room she shouted : ''You are not a mr .. 1 at all\"; t 3) Jn the heat of anger she used to say tbat she would pour kerosene on her body and would set fire to herself and tl1e house; ( 4) She used to lock out the appellant when he was due to return from the office.\n\nOn four or five occasions he had to go back to the office without taking any food; (5) For the sheer sake of harassing him she would hide _his shoes, watch, keys and other things.\n\nThe letter Ex. 426 concludes by saying :\n\n\"She is a hard headed, arrogant, merciless, thoughtless, unbalanced girl devoid of sense of duty.\n\nHer ideas about a husband are : He is a dog tied at doorstep who is supposed to come and go at her beck \\nd call whenever ordered.\n\nShe behaves with the relatives of her husband as if they were her servants.\n\nWhen I see her besides herself with fury, I feel afraid that she may kill me at any moment.\n\nI have become weary of her nature of beating the daughters, scolding and nagging me every night uttering abuses a!nd insults.\"\n\nMost of these incidents are otherwise supported, some by the admissions of the respondent herself. and for their proof we do not have to .accept the bare word of the appellant.\n\nOn July 18. 1960 the respondent wrote a letter (Ex. 27 4) to the appellant admitting that within the hearing of a vi<:itor she had beaten the daughter Shubha severely.\n\nWhen the appellant protested she retorted that if it was a matter of his prestige, he should nnt have pro- . created the children.\n\nShe has also admitted in this letter that in relation to her daughters she had said that there will be world deluge because of the birth of those \"ghosts\".\n\nOn or abllut Julv 20. 1960 she wrote another letter (Rx 275) tn the applla.nt admitting that she had described him as \"a monster in a human body\". that she bad said that he should not have pror, reated chil<iren. that he should \"Pickle them and preserve them in a iar\" and that •he h<1cl give\" a thr,,.t hat she would see to it that he loses his job and then she would publish the news in the Poona newspapers.\n\nOn. Dcember 15, 1960 the appellant wrote a\n\nletter (Ex. 285) to the respondent's father .:omplaining of the strange and cruel behaviour not only of the respondent but uf her inothet.\n\nHe says that the respondent's mother used to threaten him that since she was the wife of an Under Secretary she knew many 1mponam persons and could get him dismissed from service, that she used w pry into his correspondence in his absence and that she even went w the lengd1 of saying that the respondenl ought to care more for her parents because she could easily get another husba.id but not another pair or parents.\n\nThe respondent then went to Poona for the appellant's brother's marriage, where she was examrnt:d by Dr. Seth of the Ycravada Hospital and the spouses parted company on February 27, 1961.\n\nThe correspondence subsequent to February 27, l96i shall have to be considered later in a different, tbough a highly important, context.\n\nSome of those letters clearly bear the stamp of being written under le,'lal advice.\n\nThe parties had fallen out for good and the domestic war having ended inconclusively they were evidently preparing ground for a legal battle.\n\nIn regard to the conduct of the respondent as reflected in her admissions, two contentions r:iised on her behalf must be .; onsidered. It is urged in the first place that the various letters containing admissions were written by her under coercion. The; e is no substance in this contention. n her written statement, the respondent alleged that the appellant's parents had coerced her into writing the letters. At the trial she shifted her ground a 11d said that the coercion proceeded from the appellant himself. That apart, at a time when the marriage had gone asunder and the respondent sent to the appellant formal letters resembling a lawyer's notice, some of them by registered post, no all~ gation was made that the appellant or his parents had obtained written admissions from her.\n\nAttention may be drawn in this behalf to the lette:s Exs. 299 and 314 dated March 23 and May 6, 1961 or to the elaborate complaint Ex. 318 dated May 19, 1961 which she made to the Secretary to Governmnt of India, Ministry of Food and Agriculture. Prior to that on September 23, 1960 she had drawn up a list of her complaints (Ex. 424) which begins by saying : \"He has oppressed me in numerous ways like the following.\" But she Joes not speak therein of any admission or writing having been obtained from her. Further, letters like Exs. 271 and 272 dated respectively June 23 and Jul) 10, 1960 which besides containing admissions on her part also contain allegations against the appellant could certainly not have been obtained by coercion. Finally, considering that the respondent was always surrounded by a group of relatives who lnd assumed the role of marria!!e-counsellors, it is unlikely that any attempt to coerce her into making admissions would have been allowed to escape unrecorded.\n\nAfter all, the group here consists of greed' letter-writers.\n\nThe second contention regarding the admissions of th~ respcrndent . is founded on the provisions of s1~Ction 23(1)(a) cf the Act under which the court cannot decree relief unless it is satisfied that \"the petitioner is not in any way taking advantage of his own wrong\".\n\nThe fulfilment of the conditions mentioned in section 23(1) is so imperative\n\nN, G. DASTAN:> v. SUCHETA (Chandrachud, /.) . 983\n\nA that the legislature has taken the care to provide that \"then, and in such a case, but not otherwise, the court shall decree such relief accordingly\". It is urged that the appellant is a bigoted and egocentric person who demamled of his wife an impossibly rigid standard of behaviour and the wife's conduct must be excused as being in selfdefence.\n\nIn other words, the husband is said to have provoked the wife to say and act the way she did and he cannot be permitted to B take advantage of his own wrong. The appellant, it is true, seems 'l stickler for domestic discipline and these so-ca:lled perfectionists can be quite difficult to live with. On September 22, 1957 the respondent made a memorandum (Ex. 379) of the instructions given by the appellant, which makes interesting reading :\n\n\"Special instructions given by my husband.\n\n(1) On rising up in the morning, to .look in the mirror.\n\n(2) Not to fill milk vessel or tea cup to the brim.\n\n(3) Not to serve meals in brass plates cups and vessels.\n\n(4) To preserve carefully the letters received and if addresses of anybody are given therein to note down the same in the note book of addresses.\n\n(5) After serving the first course during meals, not to repeatedly ask 'what do you want?' but to inform at the beginning of the meals how n; mch and which are the courses.\n\n(6) As far as possible not to dip the fingers in any utensils.\n\n(7) Not to do any work with one hand.\n\n(8) To keep Chi. Shuba six feet away from the primus stove and Shegari. ·\n\n(9) To regularly apply to her 'Kajal' and give her tomato\n\njuice, Dodascloin. etc.\n\nTo make her do physical exercise, to take her for a walk and not to lose temper with her for a year.\n\n(10) To give him his musts and the things he reqaires when he starts to go outside,\n\n(11) Not to talk much.\n\n(12) Not to finish work somehow or the other; for example to write letters in good hand writing, to take a good paper, to write straight and legibly in a line.\n\n(13) Not to make exaggerations in letters.\n\n(14) To shew imagination in every work. Not to note down the milk purchased on the calendar.\"\n\nsUf>nEMI! C..oultT REPORTS C19751 3 s.c.R.\n\nNow, this was utterly tactless but one cannot say that it called for any attack in self-defence. The appellant was then 28 and the respondenc 22 years of age. In that early-morning flush of the marriage, young men and wO'lllen do entertain lavish expectations of each other and as Yt1ars roll by they sec the folly of their ways. But we do not thintt that the wife was really offended by the instructions given by the appellant. The plea of self-defence seems a clear after.-thought whil.:h took birth when there was a fundamental failure of faith and understanding.\n\nReliance was then plaoed on certain letters to show that the husband wanted to assert his will at any cost, leavin,11 the wife no option but to retaliate. We see no substance in this gnevance either.\n\nThe plea in the written statement is one of the denial of conduct alleged. and not of provocation. Secondly, there are letters on the record by which the wife and her relatives had from time to time complimented the husl:?and and his parents for their warmth, patience and understanding.\n\nCounsel for the n:spondent laid great emphasis on the letter, Ex. 244 dated May 22, 1959 written by her to the appellant in which she refers to some \"unutterable question\" put by him to her. It is urged that the appellant was pestering her with a demand for divorce and the \"unutt¢rable question\" was the one by which he asked for qivorce.\n\nNo such inference can in our opinion be raised. The respondent has not produced the letter to which Ex. 244 is reply; in the written statement there is hardfy a suggestion that the appellant was askihg her for a divorce; and the appellant was not asked in his evidence any explanation in regard to the \"unutterable question\".\n\nThese defences to the charge of cruelty must accordingly be rejected.\n\nHowever, learned counsel for the resP'ondent is right in. stressing the warning given by Denning L.J., in Kaslefsky v. Kaslefsky that : \"If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage i•self is imperilled.\" But we think that tO hold in this case that the wife's conduct does not amount to cruelty is to close for ever the door of cruelty so as to totally prevent any access thereto. This is not a case of mere austerity of temper, petulance of manners, rudeness of language or a want of civil attention to the needs of the husband and the household. Passion and petulance have perhaps to be suffered in silence as the mice of what turns out to be an iniudic!ous election of a partner. But the rrsnondent is atthe mercy of her mflex1ble temper. She c1elight~ in camin1r miery to her husband and his relation\" and she willin•!lv suffers the cnlculnted insults which\n\ner relatives hurled at him and his oarents : tlie f?lc acc11sation that, the oleader's Sanad of that old hag of your father was forfeited\"· \"I . want to see the ruination of the whole Dastane dynasty\", \"bun{\n\n(1) [1950] 2 A.E.R. 398, 403.\n\nN, G. DASTANE V. SUCHETA (Chandnichud, /.) 985\n\nthe book written by your father and apply the ashes to your forehead\"; \"you are not a man\" conveying that the children were not his; \"you are a monster in a human body\". \"I wiil make you lose your job and publish it in the Poona newspapers\"-these and similar outbursts are not the ordinary wear and tear of married . life but they became, by their regularity a menace to the peace and well-being of the household.\n\nActs like the tearing of the Mafigal-Sutra, locking out the husband when he is due to return from the office, rubbing chillie powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on the light at night and sitting by the bedside of the husband merely to nag him are acts which tend to destroy the legitimate ends and objects of matrimony. . Asum ing that there was some justification for occasional sallies or show of temper, the pattern of behaviour which the. respondent generally adopted was grossly excessive.,\n\nThe conduct of the respondent clearly amounts to cruelty within the meaning of section: 10(1) (b) of the Act.· Under that provision, the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. The threat that she will put an end of her own life or that she will set the house dn fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the appellant and his parents are all of so grave an order as to imperil the appellant's sense of pers'Onal safety. mental happiness, job satisfaction and reputation. }Jer once-too-frequent apologies do not reflect genuine contrition but were merely impromptu device to tide over a crisis temporarily.\n\nThe next question for consideration is whether the appellant had at any time condoned the respondent's cruelty. Under section 23(1)\n\n(b) of the Act, in any proceeding under the Act whether defended or not, the relief prayed for can be dee.reed' only and only if \"where the ground 'Of the petition is cruelty the petitioner has not in any manner condoned the cruelty\".\n\nThe respondent did not take up the plea in her written statement that the 'appellant had condoned her cruelty. Probably influenced. by that omission, the trial court did not frame any issue on condonation.\n\nWhile granting a decree of judicial separation on the ground of cruelty, the learned Joint Civil Judge, Junior Division, Poona. did not arldress himself to the question of condonation. In aopeal. the learned Extra Assistant Judge, Poona. havin~ found that the conduct of the respondent did not amount to cruelty, the question of condonation did not arise.\n\nThe High Court in Second Aopeal confirmed the finding of the 1st Appellate Court on the issue of crueltv and it fur•her heM that in any case the alleged cruelty was condoned by the aooellant. The condonation. acconling to the Hi<!h Court, consisted in the circumstance that the spouses co-habited till February 27, 1961 and a child was born to them in August, 1961.\n\n986 '.lUPREME COURT REPORTS [19751 3 s.c.R.\n\nBefore us, the question of condonation was argued by both the sides.\n\nIt is urged on behalf of the appelbnt that there is no\n\n1 evidence of cundonation while the :rgument of the respondent is that .condonation is implicit in the act of co-habitation and is proved by the fact that on February 27, 1961 when the spouses par_ted, the respondent was about 3 months pregnant. Even though caadonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of section 23 ( l )(b), to find whether the cruelty was condoned by the appellant.\n\nThat section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases.\n\nThe relief prayed for can be decreed only if we are satisfied \"but not otherwise'', that the petitioner has not in any manner condoned the cruelty.\n\nIt.is, of course, necessary that there should be evidence on the record of the case to show that the appellant had cor.doned the cruelty.\n\nCondonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occu- pied before the offence was committed.\n\nTo constitute condonation there must be, therefore, two things : forgiveness and restoration (1) .\n\nThe evidence of condo nation in this case is, in our opinion, s strong and satisfactory as the evidence of cruelty.\n\nBut that evidence floes not consist in the mere fact that the spouses continued to share a .common home during or for some time after the spell of cruelty.\n\nCruelty, generally, docs not consist of a single, isolated act but consists in niost cases of a series of acts spread over a period of time.\n\nLaw does not require that at the first appearance of a. cruel act, the other spouse must leave the matrimonial home lest the continued co-habitation be co\\}strued as condonation.\n\nSuch a construction will hinder reconciliation and t!iereby frustrate the benign purpose of marriage laws.\n\nThe evidence of condonation consists here in the fact that\n\n1 the $pouses led a normal sexual life despite the respondent's acts of cruelty.' This is not a ease where the spouses, after separation, indulged in 11 stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking.\n\nSuch stray acts may bear more than one explanation.\n\nBut if during co-habitation the spouses, uointluenced by the conduct of the offending spouse, lead a life of intimapy which characterises normal m;1trimonial relationship, the intent to f<?rgive and restore the offending spouse to the original status may reasonably be inferred.\n\nThere is then no scope for imagining that the conception of: the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal oact u'aaccompariied by the nobler grace.> of marital life.\n\nOne might then as well magine that the sexual act wo.s undertaken just in order to kill boredom or even in a spirit of revenge.\n\nSuch speculation is impermissible.\n\nSex ' plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment.\n\nTherefore, evidence showing that the spouses led a normal sexual life everi after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty.\n\nIntercourse, of course, is not a necessary ingre-\n\n1. The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy Sixth Ed., p. 75. ·\n\n1•. G. DASTANE v. SUCHETA (Chandrachud, J.) 987\n\nA dient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home .. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration.\n\nThat inference stands unconiradicted, the appellant not having explained the B circumstances in which he came to lead and live a normal sexual life\n\nrith the respondent, ewn after a series of acts of cruelty on her part.\n\nBut condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival.\n\nCondonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either\" of the same variety as the one condoned or of any other variety. \"No matri~ monial offence is erased by condonation.\n\nIt is obscured but not obliterated\" { 1) • Since the condition of forgiveness is that no further mari monial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence( 2). Condoned cruelty can therefore be revived, say, by desertion or adultery.\"\n\nSec.tion 23 (1 ){b) of the A..:t, it may be urged, speaks of condonation but not of its revival and therefore the English doctrine of revival should not be imported into matters arising under the Act. Apparently, this argument may seem to receive some support from the circumstances that under the English law, until the passing ot the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could n.ot be revived if dace condoned(3 ). But a closer examination of such an argument would reveal its weakness.\n\nThe doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the English Courts from the canon Jaw. 'Condonation' is a technical. word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial pro-. ceedings. It is not 'forgiveness' as commonly understood(4).\n\nIn England condoned adultery could not be revivea because of the expres~; provision contained in seetion 3 of the Matrimonial Causes Act, 1963 which wa., later incorporated into section 42(3) of the Matrimonial Caw; es Act, 1%5.\n\nIi1 the ab<encc of any such provision in the Act governing the charge of cruelty, the word 'condonation' must receive the meaning which it has borne for cnturies in the world of !aw(5). 'Condonation' under section 23(1) (b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed.\n\n(I) See Words and Phrases Legally Defined (Buttcrworlhs) 1969 Fd., Vol\n\nJ, p. 305, (\"Condonation\").\n\n(2) See Halsbury's Laws of England, 3rd Ed., Vol. 12, p. 3061.\n\n(3) See Rayden on Divorce, !Ith Ed. (1971) pp. 11, 12, 23, 68, 2403.\n\n(4) See Words and Phrases Legally Defined.(Butterworths)\n\n1969 Ed., p. 306 and the Cases cited therein.\n\n(5) See Ferrers vs Ferrers (1791) I Hag. Con. 130 at pp. 130, 131.\n\nIt therefore becomes necessary to consider the appellant's argument that even on the assumption that the appellant had condoned the cruelty, the respondent by her subsequent conduct forfeited the conditional forgiveness, thereby reviving the original cause of action for judicial separation on the ground of crudty.\n\nIt is alleged that the respondent treated the appellant with cruelty during their brief meeting on March 19, 1961, that she refused to allow to the appellant any access to the children, that on May 19, 1961 she wrote a letter (Ex. 318) to the Secretary to the Government of India, Ministry of Food and Agriculture, New Delhi, containing false and malicious accusations against the appellant and his parents and that she deserted the appellant and asked the Government .to provide her with separate maintenance.\n\nThese facts, if proved, shall have to be approached and evaluated differently from the facts which were alleged to constitute cruelty prior to its condonation.\n\nThe incidents on which the appellant relied to establish the charge of cruel.ty had to be grave and weighty.\n\nAnd we found them to be so.\n\nIn regard to the re!pondent's conduct subsequent to condonation, it is necessary to bear in mind that such conduct may r.ot be enough by itself to found a decree for judicial separation and yet it may be enough to revive the condoned offene. For example, gross familiarities short of 11dultery ( 1) or desertion for less than the statutory period(2) may be enough to revive a condoned offence.\n\nThe incident of March 19, 1961 is too trifling to deserve any notice.\n\nThat incident is described by the appellant himself in the complaint\n\n(Ex. 295) which he made to th~ police on March 20, 1961. He says therem that on the 19th morning, the respondent went to his house with some relatives, that those relatives instigated her against him, that they entered his house though he asked them not to do so and that she took away certain household articles with her. As shown by her letter (Ex.\n\n294) dated the 19th itself, the articles which she took away were some petty odds and ends like !{ doll, a slate, a baby hold-all, two pillows, a bundle of clothes and a baby-cart.\n\nThe police complaint made by the appellant betrays some hpersensitivity.\n\nAs regards the children, it does seem that ever since February 27, 1961 the appellant was denied a chance to meet them.\n\nHis letters Bxs. 307, 309 and 342 dated Ap; il 20, April 21 and November 23, 1961 respectively contiin the grievance that the children were deliberately not allowed to see him.\n\nFrom his point of view the grievance could be real but then the children, Shubha and Vibha, were just 4 and 2 years .of age in February, 1961 when their parents parted company.\n\nChildren of such tender age need a great amount of looking after and they could . not have been sent to meet their father unescorted.\n\nThe one person who could so escort them was the mother who had left or had to leave the matrimonial h•.>me for good.\n\nThe appellant's going to the home of t-he rcpondenf's p; ircnt~ where sh~ wao. Jivinq W'l~ in the circumstances an imoracticable orooosition. 11ms, the wall that divided the parents denied to the appellant access to his children.\n\n---·----·-- , J (I) H1lsoury's Law> of England, 3rd Ed., Vol. 12, p. 306, para 609. ,(2) Beard vs. Beard [1945) 2 A.E.R. 306.\n\nN. G. DASTANE v. SUCHETA (Chandrachud, ]. )\n\nPS 9\n\nThe allegations made by the respondent in her letter to the Government, Ex. 318 dated May 19, 1961 require a close consideration. It is a long letter, quite an epistle, in tune with the respondent's proclivity as a letter-writer. By that Jett, r, silt asked the Uovanmeut to provide separate maintenance for herself and the children.\n\nThe allegations contained in the letter to which the appellant's cou'ascl has taken strong exception are these : ( 1) During the period that she lived with the appellant, she was ubjected to great harassment as well a~ mental and physieal torture; (2) The appellant had driven her out of the house on Febmary 27, 1961; (3) The appellant had deserted her and had declared that he will not have any connection with her and that he will not render any financial help for the maintenance of herself and the children.\n\nHe also refused to give medical help to her in her advauced stage or pregnancy; ( 4) The appellant had denied to her even the barest necessities of life like fooj and clothing; (5) The parents of the appellant were wicked persons and much of her suffering was due to the influence which they had on the appellant; (6) The appellant used to threaten her that he would divorce her, drive her out of the house and even do away with her life; (7) The plan to get her examined by Dr. Seth of the Pcravada Meutal Hospital was an htsmcere, wicked and evil move engineered by the appellant, his brother and his father, (8) On her refusal to submit to the medical examination any further, she was driven out of foe house with the children after being deprived of the valuables on her person and in her possession; and (9) The appellant had subjected her to such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with him.\n\nViewed in isolation, these allegations present a different aud a somewhat distorted picture.\n\nFor their proper assessment and understanding, it is necessary to consider the context in which those allegations came to be made.\n\nWe will, for that purpose, refer to a few letters.\n\nOn March 7, 196 l the respondent's mother's aunt, Mrs. Gokhak wrote a letter (Ex. 644) to the re8pondcut's mother.\n\nThe letter has some bearing on the events which happened in the wake of the separation which took place on February 27, 1961. It shows that the grievance of the respondent and her refatives was not so much that a psychiatrist was cdasulted as that the consultation was arranged without any prior intimation to the respondent. The letter shows that the appellant's\n\nbrother Dr. Lohokare, ancl his brother-in\"law Deolalkar, expre:; sed re-· gret that the espondent should have been got examined by a psychiatrist without previous intimation to any of her relatives.\n\nThe letter speaks of a possibk compromise between the husband and wife and it sets out the terms which the respondent's relatives wanted to place befort: the appellant.\n\nThe terms were that the respondent would stay at her parents' place until her delivery but sh~ would visit the appellant off and on; that the children would be free to visit the appellant; and that in' case the appellant desired that the respondent should live with him, he should arrange that Dr. Lohokare's mother should stay with them in Delhi for a few days.\n\nThe last term of the proposed compromise was that instead of digging the past the husband and wife should\n\nlive in peace and happiness.\n\nThe letter bears mostly the handwritting\n\nof the respondent herself and th~ significance of that . circumstance is that it was evidently written with her knowledge and consent.\n\nTwo tlimgs are dear trom the letter : one, that the repondent did not want to kave the appellant and two, that she did not either want to prevent the children from seeing the appellant. 'Ihe letter was written by one close relative of the respondent to •ancther in the ordinary course of events and was not, so to say, prepared in order to create evidence or to supply a possible defe1ace. It relkcts a genuine attitude, not a makebelieve pose and the feelings expresE1od therein were shared by the respondent whose handwriting the letter bears.\n\nThis letter must be read along with the letter Ex. 304 which the respondent sent to the appel1'ant on April 18, 1961. She writes :\n\n\"I was sorry to hear thst you are unwell and need treatment. 1 would always like never to fail in niy wifely duty of looking after you, particularly when you are ailing, bu! you will, no doubt, agree that even for this, it will not be possible for me to join you in the house out of which you have turned me at your father's i11stancc.\n\nThis is, therefore, just to keep y0u informed that if you come to 7 /6 East Patel Nagar, I shall be able to nurse you properly und my parents will ever be most willing to afford ihe necessary facilities under their care to let me carry out this proposal of mine.\"\n\nThere is no question that the respondent had no animus to dcc; ert the appellant and as stated by her or on her behalf more than once, the appellant had on February 27, 1961 reached her to Mrs. Gl1khalc's house in Poom. may be in the hope that she will co-operafe with Dr.\n\nSeth in the psychlatric exploration.\n\nShe did not leave the house of her own volition.\n\nBut the appellant h; d worked himself up to believe that !he respondent had gone off her mind.\n\nOn March 15, 1961 he made a complaint (Ex. 292) to '.he Delhi Police wich begins with the recital that the respondent was in the Mentnl Hospital before marriage and that she needed treatment from a p'y<:11:trist.\n\nHe did say that the no''pondent was \"a very loving and affectionate p'.'rson\" but he qualified it by saying : \"when excited, she appears t0 be a very dangerous woman, with confused thinking\".\n\nOn April 20, 1961 the appeHant wrote a letter (Ex. 305) to the respondent charging her once again of being in an \"unsound state of mind\". The appellant declared by th1t letter that he will not be Ii.able for any expenses incurred by her during her stay in her parents' house.\n\nOn the same date he wrote a letter (Ex. 307) to the re, ponde1t's father reminding him that he, the appellant, had accepted a girl \"who had returned from the Mental Hospital\".\n\nQ,1 April 21, 1961 he wrote a letter (Ex_ 309) to the Director of Social Welfare, Delhi Administra-· tion, in which he took especial care to declare that the respondent \"was in the Poona Mental Hospital as a lunatic before the marriage\".\n\nThe relevance of these reiterations regarding the so-called insanity of th!:\n\n... -\n\nN. G. l>ASTANE v. SUCHETA (Chandrachud, !.) 991\n\nrespondent, particularly in the last letter, seems only this, that the appellant was preparing ground for a decree of divorce or of annulment of marriage.\n\nHe was surely not so naive as to believe that the Director of Social Welfare could arrange to \"give complete physical and mental\n\nrest\" to the respondent.\n\nObviously, the appellant was anxious to disseminate the information as widely as possible that the respondent was of unsound mind.\n\nOn May 6, 1961 the respondent sent a reply (Ex. 314) to the appellant's Jetter, Ex. 305, dated April 20, 1961. She expressed her willingness to go back to Poona as desired by him, if he could make satisfactory arrangements for her stay there.\n\nBut she asserted that as a wife she was entitled to live with him and there was no purpose in her living at Poona \"so many miles away from Delhi, without your shelter\". In regard to the appellant's resolve that he will not bear the expenses incurred by her, she stated that •aot a pie remitted by him will be illspent and that, whatever amount he would send her will be accounted for fully.\n\nIt is in this ba1.-kground that on May 19, 1961 the respondent wrote the letter Ex. 318 to the Government.\n\nWhen asked by the Government D to offer his explanation, the appellant by his reply Ex. 323 dated July 19, 1961 stated that the respondent needed mental treatment, that she may have written the letter Ex. 318 in a \"madman's frenzy\" and that her father had \"demoralised\" her.\n\nIn his Jetter Ex. 342 dated November 23, 1961 to the respondent's father, he described the respondent as\n\n\"your schizophrenic daughter\".\n\n, Considered in this context, the allegations made by the respondent in her letter Ex. 318 cannot revive the original cause of action.\n\nThese allegations were provoked by the appellant by his persistent and purposeful accusation, repeated times without number, that the respondent was of unsound mind. He snatched every chance and wasted no opportunity to describe her as a mad woman which, for the purposes of this appeal, we must assume to be wrong and unfounded.\n\nHe ha<. been denied leave to appeal to this Court from the finding of the High Court that his allegation that the respondent was of unsound mind is baeless.\n\nHe also protested that he was not liable to maintain the responrlent.\n\nIt is difficult in these circumstances to accept the appellant's argument either that the respondent deserted him or that she treated him with cruelty after her earlier conduct was condoned by him.\n\nIt is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival(!) and in cases of cruelty, \"very slight fresh evidence is needed to show a resumption of: the crnelty. for crueltv of chancter is bound to show itself in conduct and behaviour, day in and day out, nig.it in and night out\". But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is\n\nconditional forgiveness but the grant .of such forgiveness does not give\n\n(I) Cooper vs. Cooper (1950) W.N. 200 (H.l.)\n\n(2) Per Scott!.,. J. in Bairam vs. Bairam (1944) p. 59 at p. 60.\n\n992 SUPRJi; ME COURT REPORTS [19751 3 s.c.R.\n\nto the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy.\n\nThe respondent ought not to have described the appellant's parents as \"wicked\" but that perhaps is the only allegation in the letter Ex. 318 to which exception may be taken. We fiad ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty.\n\nWe therefore hold that the respondent was guilty of cruelty but the appellant condoned it and the subsequent conduct of the respondent is not such as to amount to a revival of the original cause of action.\n\nAccordingly, we dismiss the appeal and direct the appellant to pay the costs of the respondent.\n\np 1-f. p Appeal dismissed.", "total_entities": 149, "entities": [{"text": "NARAYAN GANESH DASTANE", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "NARAYAN GANESH DASTANE", "offset_not_found": false}}, {"text": "SUCHETA NARAYAN DASTANE", "label": "RESPONDENT", "start_char": 24, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "SUCHETA NARAYAN DASTANE", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 66, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 85, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Hindu Marriage Act", "label": "STATUTE", "start_char": 128, "end_char": 146, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3", "label": "PROVISION", "start_char": 509, "end_char": 518, "source": "regex", "metadata": {"linked_statute_text": "Hindu Marriage Act", "statute": "Hindu Marriage Act"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1500, "end_char": 1505, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 103", "label": "PROVISION", "start_char": 1963, "end_char": 1969, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3503, "end_char": 3507, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 4470, "end_char": 4475, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Marriage Act", "label": "STATUTE", "start_char": 4483, "end_char": 4501, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 23", "label": "PROVISION", "start_char": 4578, "end_char": 4583, "source": "regex", "metadata": {"statute": null}}, {"text": "England", "label": "GPE", "start_char": 5313, "end_char": 5320, "source": "ner", "metadata": {"in_sentence": "In England, a view was at one time taken that a petitioner in a matrimonial petition must establish his or her case beyond a reasonable doubt but the House of Lords in Blyth v.\n\nEllyth has held that the grounds of divorce or the bars to .the divorce may be proved b'y a preponderance of probability."}}, {"text": "High Court of Austr?-1ia has", "label": "COURT", "start_char": 5614, "end_char": 5642, "source": "ner", "metadata": {"in_sentence": "The High Court of Austr?-1ia has also taken a similar view. ("}}, {"text": "s. 23", "label": "PROVISION", "start_char": 7201, "end_char": 7206, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 7818, "end_char": 7826, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 23", "label": "PROVISION", "start_char": 8826, "end_char": 8831, "source": "regex", "metadata": {"statute": null}}, {"text": "V. M. Tarkunde", "label": "OTHER_PERSON", "start_char": 12717, "end_char": 12731, "source": "ner", "metadata": {"in_sentence": "480 of 1'68 ..\n\nV. M. Tarkunde, S. Bhandare, P. H. Parekh ain.d Manju laitely, for the appellant."}}, {"text": "S. Bhandare", "label": "LAWYER", "start_char": 12733, "end_char": 12744, "source": "ner", "metadata": {"in_sentence": "480 of 1'68 ..\n\nV. M. Tarkunde, S. Bhandare, P. H. Parekh ain.d Manju laitely, for the appellant."}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 12746, "end_char": 12758, "source": "ner", "metadata": {"in_sentence": "480 of 1'68 ..\n\nV. M. Tarkunde, S. Bhandare, P. H. Parekh ain.d Manju laitely, for the appellant."}}, {"text": "Manju laitely", "label": "LAWYER", "start_char": 12765, "end_char": 12778, "source": "ner", "metadata": {"in_sentence": "480 of 1'68 ..\n\nV. M. Tarkunde, S. Bhandare, P. H. Parekh ain.d Manju laitely, for the appellant."}}, {"text": "S. Desai", "label": "LAWYER", "start_char": 12804, "end_char": 12812, "source": "ner", "metadata": {"in_sentence": "S. Desai, S. B. Wad alnd Jaya/Jhree Wad, for the respondents."}}, {"text": "S. B. Wad", "label": "LAWYER", "start_char": 12814, "end_char": 12823, "source": "ner", "metadata": {"in_sentence": "S. Desai, S. B. Wad alnd Jaya/Jhree Wad, for the respondents."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 12911, "end_char": 12922, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J .-This is a matrimonial dispute arising out of a petition filed by the appellant for annulment of his marriage with the respondent or alternatively for divorce or for judicial separation."}}, {"text": "Narayan Ganesh Dastane", "label": "PETITIONER", "start_char": 13625, "end_char": 13647, "source": "ner", "metadata": {"in_sentence": "The appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc.", "canonical_name": "NARAYAN GANESH DASTANE"}}, {"text": "Poona University", "label": "ORG", "start_char": 13692, "end_char": 13708, "source": "ner", "metadata": {"in_sentence": "in C Agriculture from the Poona University."}}, {"text": "Government of India", "label": "ORG", "start_char": 13729, "end_char": 13748, "source": "ner", "metadata": {"in_sentence": "He was sent by the Government of India to Australia in the Colombo Plan Scheme."}}, {"text": "Australia", "label": "GPE", "start_char": 13752, "end_char": 13761, "source": "ner", "metadata": {"in_sentence": "He was sent by the Government of India to Australia in the Colombo Plan Scheme."}}, {"text": "India", "label": "GPE", "start_char": 13885, "end_char": 13890, "source": "ner", "metadata": {"in_sentence": "He obtained his Doctorate in Irrigation Research from an Australian Univerity and returned to India in April, 1955."}}, {"text": "Podaa", "label": "GPE", "start_char": 14002, "end_char": 14007, "source": "ner", "metadata": {"in_sentence": "Podaa to take charge of a new post as an Assistant Professor of Agronomy in the Post-Graduate School, Pusa Institute, Delhi.·"}}, {"text": "Pusa Institute, Delhi", "label": "ORG", "start_char": 14104, "end_char": 14125, "source": "ner", "metadata": {"in_sentence": "Podaa to take charge of a new post as an Assistant Professor of Agronomy in the Post-Graduate School, Pusa Institute, Delhi.·"}}, {"text": "Poona", "label": "GPE", "start_char": 14243, "end_char": 14248, "source": "ner", "metadata": {"in_sentence": "His father was a solicitor-cum lawyer practising in Poona."}}, {"text": "Sucheta", "label": "RESPONDENT", "start_char": 14267, "end_char": 14274, "source": "ner", "metadata": {"in_sentence": "The respondent, Sucheta, comes from Nagpur but she spent her formative years mostly in Delhi.", "canonical_name": "Sucheta"}}, {"text": "Delhi", "label": "GPE", "start_char": 14376, "end_char": 14381, "source": "ner", "metadata": {"in_sentence": "Her father was transferred to Delhi in 1949 as an Under Secretary in the Commerce Ministry of the Government uf India and she came to Delhi along with the rest of the family. ."}}, {"text": "Delhi University", "label": "ORG", "start_char": 14555, "end_char": 14571, "source": "ner", "metadata": {"in_sentence": "from the Delhi University in 1954 and spent a year in fapan where her father was attached to the Indian Embassy."}}, {"text": "fapan", "label": "GPE", "start_char": 14600, "end_char": 14605, "source": "ner", "metadata": {"in_sentence": "from the Delhi University in 1954 and spent a year in fapan where her father was attached to the Indian Embassy."}}, {"text": "B. R. Abhyankar--", "label": "OTHER_PERSON", "start_char": 15013, "end_char": 15030, "source": "ner", "metadata": {"in_sentence": "In April, 1956 her parents arranged her marriage with the appellant But before finalising the proposal, her father-B. R. Abhyankar-- wrote two letters to the appellant's father saying in the first of these that the respondent \"had a little misfortune before going to Japan in that she had a bad attack of sunstroke which affected her mental condition for sometime''."}}, {"text": "Japan", "label": "GPE", "start_char": 15165, "end_char": 15170, "source": "ner", "metadata": {"in_sentence": "In April, 1956 her parents arranged her marriage with the appellant But before finalising the proposal, her father-B. R. Abhyankar-- wrote two letters to the appellant's father saying in the first of these that the respondent \"had a little misfortune before going to Japan in that she had a bad attack of sunstroke which affected her mental condition for sometime''."}}, {"text": "Yeravada Mental Hospital", "label": "ORG", "start_char": 15475, "end_char": 15499, "source": "ner", "metadata": {"in_sentence": "The letters stated that after a course of treatment at t'he Yeravada Mental Hospital, she was cured : \"you find h~:r as she is today''."}}, {"text": "P. L. Deshmukh", "label": "OTHER_PERSON", "start_char": 15699, "end_char": 15713, "source": "ner", "metadata": {"in_sentence": "The respondent's father asked her appellant's father to discuss the matter, if necessary, with the doctors of the Mental Hospital or with one Dr. 'P. L. Deshmukh, a relative of the respondent's mother."}}, {"text": "Deshmukh", "label": "OTHER_PERSON", "start_char": 15965, "end_char": 15973, "source": "ner", "metadata": {"in_sentence": "Dr. Deshmukh confirmed what was stated in the letters and being content with his assurance, the appellant and his father made no enqui-\n\nN. G. DASTANE v. SUCHETA (Chandradhud, J.) 971\n\nA ries with the Yeravada Mental Hospital."}}, {"text": "Belgaum", "label": "GPE", "start_char": 16340, "end_char": 16347, "source": "ner", "metadata": {"in_sentence": "They lived at Arbhavi in District Belgaum from June to October, 1956."}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 16380, "end_char": 16396, "source": "ner", "metadata": {"in_sentence": "On November 1, 1956 the appellant was transferred to Poona where the two lived together tilll958."}}, {"text": "Pusa Institute of Delhi", "label": "ORG", "start_char": 16761, "end_char": 16784, "source": "ner", "metadata": {"in_sentence": "In October, 1958 the appellant took a job in the Pusa Institute of Delhi."}}, {"text": "Vibha", "label": "OTHER_PERSON", "start_char": 16826, "end_char": 16831, "source": "ner", "metadata": {"in_sentence": "On March 21, 1959 the second daughter, Vibha, was born."}}, {"text": "Djakarta", "label": "GPE", "start_char": 16993, "end_char": 17001, "source": "ner", "metadata": {"in_sentence": "Her parents were living at this time in Djakarta, Indonesia."}}, {"text": "Indonesia", "label": "GPE", "start_char": 17003, "end_char": 17012, "source": "ner", "metadata": {"in_sentence": "Her parents were living at this time in Djakarta, Indonesia."}}, {"text": "Poonu", "label": "GPE", "start_char": 17283, "end_char": 17288, "source": "ner", "metadata": {"in_sentence": "A fortnight after the marriage, on February 27, 1961 the appellant who had also gone to Poonu for the marriage got the respondent examined by Dr. Seth, a Psychiatrist in charge of the Yeravada Mental Hospital."}}, {"text": "Seth", "label": "OTHER_PERSON", "start_char": 17341, "end_char": 17345, "source": "ner", "metadata": {"in_sentence": "A fortnight after the marriage, on February 27, 1961 the appellant who had also gone to Poonu for the marriage got the respondent examined by Dr. Seth, a Psychiatrist in charge of the Yeravada Mental Hospital."}}, {"text": "Gokhalc", "label": "OTHER_PERSON", "start_char": 17771, "end_char": 17778, "source": "ner", "metadata": {"in_sentence": "Either she herself or both she and the appellant decided that she should stay for some time with a relative of hers, Mrs. Gokhalc.", "canonical_name": "Gokhalc"}}, {"text": "Pratibha", "label": "OTHER_PERSON", "start_char": 18354, "end_char": 18362, "source": "ner", "metadata": {"in_sentence": "The third ch .. le, agai1~ ;1\n\ngir~ named Pratibha was born on August 19, 1961 when hi!:"}}, {"text": "Gadre", "label": "OTHER_PERSON", "start_char": 18638, "end_char": 18643, "source": "ner", "metadata": {"in_sentence": "A gentleman called Gadre ."}}, {"text": "March 2, 1961", "label": "DATE", "start_char": 18750, "end_char": 18763, "source": "ner", "metadata": {"in_sentence": "On March 2, 1961 he had written to the appellant's father a pseudonymous letter now proved to be his, full of malice and sadism."}}, {"text": "of'Brahmadev", "label": "OTHER_PERSON", "start_char": 18936, "end_char": 18948, "source": "ner", "metadata": {"in_sentence": "He wrote :\n\n\"I on my part consider myself to be the father of'Brahmadev'. . ........."}}, {"text": "March 11, 1961", "label": "DATE", "start_char": 19587, "end_char": 19601, "source": "ner", "metadata": {"in_sentence": "On March 11, 1961 the appellant returned to Delhi all alone."}}, {"text": "March 23, 1961", "label": "DATE", "start_char": 20198, "end_char": 20212, "source": "ner", "metadata": {"in_sentence": "On March 23, 1961 the respondent wrote to the appellant complaining against his c:onduct and asking for money for the maintenance."}}, {"text": "May 19, 1961", "label": "DATE", "start_char": 20360, "end_char": 20372, "source": "ner", "metadata": {"in_sentence": "On May 19, 1961 the respondent wrote a letter to the Secretary, Ministry of Food and Agricultur.e, saying that the appella:nt had deserted her, that he had treated her with extreme cruelty and asking that the Government should make separate provision for ber ."}}, {"text": "Ministry of Food and Agricultur.e", "label": "ORG", "start_char": 20421, "end_char": 20454, "source": "ner", "metadata": {"in_sentence": "On May 19, 1961 the respondent wrote a letter to the Secretary, Ministry of Food and Agricultur.e, saying that the appella:nt had deserted her, that he had treated her with extreme cruelty and asking that the Government should make separate provision for ber ."}}, {"text": "November 3, 1961", "label": "DATE", "start_char": 21060, "end_char": 21076, "source": "ner", "metadata": {"in_sentence": "On November 3, 1961 the appellant wrote to respondent's falber compllJining of respondent's conduct and expressing regret that not even a proper invitation was issued to him when the naming ceremony of the child was performed."}}, {"text": "February 19, 196Z.", "label": "DATE", "start_char": 21507, "end_char": 21525, "source": "ner", "metadata": {"in_sentence": "The proceedings out of which this appeal arises were instituted on February 19, 196Z.\n\nThe parties are Hindus but we do not propose, as is commonly done and as has ."}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 22549, "end_char": 22562, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 22785, "end_char": 22795, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 23044, "end_char": 23054, "source": "regex", "metadata": {"statute": null}}, {"text": "Yeravada Mental Hospital for Schizophrenia", "label": "ORG", "start_char": 23331, "end_char": 23373, "source": "ner", "metadata": {"in_sentence": "The appellant alleged that prior to tlie marriage, the nispondent was treated in the Yeravada Mental Hospital for Schizophrenia but her father fraudulently represented that she was treated for sun-stroke and cerebral malaria."}}, {"text": "February 24, 1969", "label": "DATE", "start_char": 24073, "end_char": 24090, "source": "ner", "metadata": {"in_sentence": "A learned single Judge of that court dismissed that appeal by a judgment dated February 24, 1969."}}, {"text": "Section 100", "label": "PROVISION", "start_char": 24852, "end_char": 24863, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 24867, "end_char": 24894, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 136", "label": "PROVISION", "start_char": 25667, "end_char": 25678, "source": "regex", "metadata": {"statute": null}}, {"text": "section 103", "label": "PROVISION", "start_char": 26671, "end_char": 26682, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 26686, "end_char": 26713, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 100", "label": "PROVISION", "start_char": 27059, "end_char": 27070, "source": "regex", "metadata": {"statute": null}}, {"text": "section 103", "label": "PROVISION", "start_char": 29016, "end_char": 29027, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 29834, "end_char": 29847, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 30392, "end_char": 30401, "source": "regex", "metadata": {"statute": null}}, {"text": "Denning", "label": "JUDGE", "start_char": 31783, "end_char": 31790, "source": "ner", "metadata": {"in_sentence": "Dan on a promissory note : \"the nature and gravity of an issue necessarily cietermines the manner of attaining reasonable satisfaction of the truth of the issue\" ( l) ; or as said by Lord Denning, \"the degree of probability depends on the subject-matter.", "canonical_name": "Denning"}}, {"text": "Per Dixon", "label": "JUDGE", "start_char": 32571, "end_char": 32580, "source": "ner", "metadata": {"in_sentence": "If the probabilities are so nicely balanced that a reasonable,\n\n(I) Per Dixon, J. in Wright v. Wright {1948) 77 C.L.R. 191 at p. 210."}}, {"text": "section 23", "label": "PROVISION", "start_char": 33115, "end_char": 33125, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 33299, "end_char": 33309, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 33652, "end_char": 33662, "source": "regex", "metadata": {"statute": null}}, {"text": "Enand", "label": "OTHER_PERSON", "start_char": 34555, "end_char": 34560, "source": "ner", "metadata": {"in_sentence": "In Enand, a view was at one time taken that the petitioner in a m:itrhnorual petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth(1), the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonatlcin are concerned, \"the case, Jike any civil case, may be proved by a preponderance of probability\"."}}, {"text": "High Court of Austraila", "label": "COURT", "start_char": 34946, "end_char": 34969, "source": "ner", "metadata": {"in_sentence": "The High Court of Austraila in Wright v. Wright('), has also taken the view that \"the civil and not the criminal standard of persuasion applies to matrimonial causes, includ- ing issue~ of adultery\" •. The Hiizh Court was therefore in error in hold~ ing that the petitioner must establish the charge of cruelty \"beydnd reasonable doubt''."}}, {"text": "S24", "label": "PROVISION", "start_char": 35881, "end_char": 35884, "source": "regex", "metadata": {"statute": null}}, {"text": "S36", "label": "PROVISION", "start_char": 35888, "end_char": 35891, "source": "regex", "metadata": {"statute": null}}, {"text": "N. G. DASTANE", "label": "JUDGE", "start_char": 35963, "end_char": 35976, "source": "ner", "metadata": {"in_sentence": "N. G. DASTANE V. SUCHETA ·(ChandrMJzud, J.) 977\n\nof such a character as to endanger personal health or safely; or there Must be a .reasonable apprehension 01 it'.\""}}, {"text": "D. Tolstoy", "label": "OTHER_PERSON", "start_char": 36313, "end_char": 36323, "source": "ner", "metadata": {"in_sentence": "Ti1~ High Court then refers to the decisions of some of the Indian Courts to illustrate ''The march of the Indian Courts with the Englishs Courts\" arid cites the following passage from D. Tolstoy's ''The Law and Practice of Divorce and Matrimonial Causes\" (Sixth Ed.,", "canonical_name": "D. Tolstoy"}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 37185, "end_char": 37198, "source": "regex", "metadata": {"statute": null}}, {"text": "Tolstoy", "label": "OTHER_PERSON", "start_char": 38510, "end_char": 38517, "source": "ner", "metadata": {"in_sentence": "The risk of relying on English decisions in this field may be shown by the Icarnd Judge's reference to a passage from Tolstoy (p. 63) in which the karned author, citing Horton v. Horton( I), says : ·\n\n\"Spouses take each other for better or worse, and it is not enough to show that they find life_ together impossible, even if there results injury to health.\"", "canonical_name": "D. Tolstoy"}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 39027, "end_char": 39040, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 39647, "end_char": 39657, "source": "regex", "metadata": {"statute": null}}, {"text": "Reid", "label": "OTHER_PERSON", "start_char": 41458, "end_char": 41462, "source": "ner", "metadata": {"in_sentence": "As said by Lord Reid\n\ni~1 his speech in Gollins v. Gollins(2)."}}, {"text": "Dastane", "label": "OTHER_PERSON", "start_char": 41993, "end_char": 42000, "source": "ner", "metadata": {"in_sentence": "We must therefore try and understand this Dr. Dastane and his wife Sucheta as nature has made them and as they have shape~ their lives."}}, {"text": "Sucheta", "label": "RESPONDENT", "start_char": 42014, "end_char": 42021, "source": "ner", "metadata": {"in_sentence": "We must therefore try and understand this Dr. Dastane and his wife Sucheta as nature has made them and as they have shape~ their lives.", "canonical_name": "Sucheta"}}, {"text": "section 23(l)(a)", "label": "PROVISION", "start_char": 42254, "end_char": 42270, "source": "regex", "metadata": {"statute": null}}, {"text": "February 27, 1961", "label": "DATE", "start_char": 43261, "end_char": 43278, "source": "ner", "metadata": {"in_sentence": "The spouses parted company on February 27, 1961, the appellant filed his petition on February 19, 1962 and the trial began in September."}}, {"text": "February 19, 1962", "label": "DATE", "start_char": 43316, "end_char": 43333, "source": "ner", "metadata": {"in_sentence": "The spouses parted company on February 27, 1961, the appellant filed his petition on February 19, 1962 and the trial began in September."}}, {"text": "Yeravada Hospital", "label": "ORG", "start_char": 45174, "end_char": 45191, "source": "ner", "metadata": {"in_sentence": "The wife, apart from her voluminous letters, has written an autobiographical account of her unfortunate experiences in the Yeravada Hospital, calling it \"Mee Antaralat Tarangat Asta.,"}}, {"text": "May 13, 1956", "label": "DATE", "start_char": 45868, "end_char": 45880, "source": "ner", "metadata": {"in_sentence": "The marriage took place on May 13, 1956."}}, {"text": "November 23, 1956", "label": "DATE", "start_char": 46158, "end_char": 46175, "source": "ner", "metadata": {"in_sentence": "556 dated November 23, 1956 she admits to having behaved \"'very badly\"; in Ex."}}, {"text": "May 5, l 959", "label": "DATE", "start_char": 46355, "end_char": 46367, "source": "ner", "metadata": {"in_sentence": "243 dated May 5, l 959 she says that she was aware of her \"lack of sense\" and asks for forgiveness for having insulted the appellant, his parents, his sister and her husband; and in Ex."}}, {"text": "May 22, 1959", "label": "DATE", "start_char": 46541, "end_char": 46553, "source": "ner", "metadata": {"in_sentence": "244 dated May 22, 1959 she entreats the appellant that he houlid not feel guilty for the insults hurled by her at his parents."}}, {"text": "March 21. 1960", "label": "DATE", "start_char": 48017, "end_char": 48031, "source": "ner", "metadata": {"in_sentence": "On March 21."}}, {"text": "June 23, 1960", "label": "DATE", "start_char": 48176, "end_char": 48189, "source": "ner", "metadata": {"in_sentence": "On June 23, 1960 the respondent made a noting in her own hand tating that she had accused the appellant of heing a person with a beggarly luck, that she had said that the food eaten at l11s house, instead of heing digested would cause worms in the stomach and that she had given a rbrl'at : \"murder hall be avenged wltl\\ murder''."}}, {"text": "June 1, 1960", "label": "DATE", "start_char": 48512, "end_char": 48524, "source": "ner", "metadata": {"in_sentence": "During June 1, 1960 to December 15, 1960 the marital relations were subjected to a stress and strain which ultimately wrecked the marriage."}}, {"text": "December 15, 1960", "label": "DATE", "start_char": 48528, "end_char": 48545, "source": "ner", "metadata": {"in_sentence": "During June 1, 1960 to December 15, 1960 the marital relations were subjected to a stress and strain which ultimately wrecked the marriage."}}, {"text": "October 23, 1960", "label": "DATE", "start_char": 48883, "end_char": 48899, "source": "ner", "metadata": {"in_sentence": "426 dated October 23, 1960."}}, {"text": "Shubha", "label": "OTHER_PERSON", "start_char": 49409, "end_char": 49415, "source": "ner", "metadata": {"in_sentence": "The gist of the more unportant of the appellant's grievances m regard to the period prior to June, 1960 is this : (1) The respondent used to describe lhe appellant's\n\nmoher as a. boorish woman; (2) On the day of 'Paksha' (the day 011 whrch oblations are offered to ancestqrs) she used_ to abuse the ancestors of the appellant; (3) She tore off the 'Mangal-Sutra'; (4) She beat the daughter Shubha while she was running a high temperature of 104';\n\n( 5) One night she started behaving as if she was 'possessed'.", "canonical_name": "Shubha"}}, {"text": "Godse", "label": "OTHER_PERSON", "start_char": 50100, "end_char": 50105, "source": "ner", "metadata": {"in_sentence": "l) The respondent would indulge in every sort of harassment and would blun out anything that came to her mind; (2) One day while a student l)f the appellant called Godse was sitting in the outer room she shouted : ''You are not a mr .. 1 at all\"; t 3) Jn the heat of anger she used to say tbat she would pour kerosene on her body and would set fire to herself and tl1e house; ( 4) She used to lock out the appellant when he was due to return from the office."}}, {"text": "July 18. 1960", "label": "DATE", "start_char": 51329, "end_char": 51342, "source": "ner", "metadata": {"in_sentence": "On July 18."}}, {"text": "Julv 20. 1960", "label": "DATE", "start_char": 51797, "end_char": 51810, "source": "ner", "metadata": {"in_sentence": "On or abllut Julv 20."}}, {"text": "Dcember 15, 1960", "label": "DATE", "start_char": 52200, "end_char": 52216, "source": "ner", "metadata": {"in_sentence": "Dcember 15, 1960 the appellant wrote a\n\nletter (Ex."}}, {"text": "Ycravada Hospital", "label": "ORG", "start_char": 52917, "end_char": 52934, "source": "ner", "metadata": {"in_sentence": "The respondent then went to Poona for the appellant's brother's marriage, where she was examrnt:d by Dr. Seth of the Ycravada Hospital and the spouses parted company on February 27, 1961."}}, {"text": "February 27, l96i", "label": "DATE", "start_char": 53022, "end_char": 53039, "source": "ner", "metadata": {"in_sentence": "The correspondence subsequent to February 27, l96i shall have to be considered later in a different, tbough a highly important, context."}}, {"text": "September 23, 1960", "label": "DATE", "start_char": 54410, "end_char": 54428, "source": "ner", "metadata": {"in_sentence": "Prior to that on September 23, 1960 she had drawn up a list of her complaints (Ex."}}, {"text": "June 23 and Jul) 10, 1960", "label": "DATE", "start_char": 54713, "end_char": 54738, "source": "ner", "metadata": {"in_sentence": "271 and 272 dated respectively June 23 and Jul) 10, 1960 which besides containing admissions on her part also contain allegations against the appellant could certainly not have been obtained by coercion."}}, {"text": "s1", "label": "PROVISION", "start_char": 55302, "end_char": 55304, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23(1)", "label": "PROVISION", "start_char": 55519, "end_char": 55532, "source": "regex", "metadata": {"statute": null}}, {"text": "September 22, 1957", "label": "DATE", "start_char": 56256, "end_char": 56274, "source": "ner", "metadata": {"in_sentence": "On September 22, 1957 the respondent made a memorandum (Ex."}}, {"text": "Shuba", "label": "OTHER_PERSON", "start_char": 57051, "end_char": 57056, "source": "ner", "metadata": {"in_sentence": "Shuba six feet away from the primus stove and Shegari. ·", "canonical_name": "Shubha"}}, {"text": "Denning", "label": "JUDGE", "start_char": 59634, "end_char": 59641, "source": "ner", "metadata": {"in_sentence": "stressing the warning given by Denning L.J., in Kaslefsky v. Kaslefsky that : \"If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament.", "canonical_name": "Denning"}}, {"text": "section 23(1)", "label": "PROVISION", "start_char": 62916, "end_char": 62929, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 64631, "end_char": 64641, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 72", "label": "PROVISION", "start_char": 68389, "end_char": 68399, "source": "regex", "metadata": {"statute": null}}, {"text": "Divorce Reform Act, 1969", "label": "STATUTE", "start_char": 69391, "end_char": 69415, "source": "regex", "metadata": {}}, {"text": "Britain", "label": "GPE", "start_char": 69767, "end_char": 69774, "source": "ner", "metadata": {"in_sentence": "The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the English Courts from the canon Jaw. '"}}, {"text": "Matrimonial Causes Act, 1963", "label": "STATUTE", "start_char": 70150, "end_char": 70178, "source": "regex", "metadata": {}}, {"text": "section 42(3)", "label": "PROVISION", "start_char": 70214, "end_char": 70227, "source": "regex", "metadata": {"linked_statute_text": "the Matrimonial Causes Act, 1963", "statute": "the Matrimonial Causes Act, 1963"}}, {"text": "section 23(1)", "label": "PROVISION", "start_char": 70472, "end_char": 70485, "source": "regex", "metadata": {"linked_statute_text": "the Matrimonial Causes Act, 1963", "statute": "the Matrimonial Causes Act, 1963"}}, {"text": "Rayden", "label": "RESPONDENT", "start_char": 70789, "end_char": 70795, "source": "ner", "metadata": {"in_sentence": "(3) See Rayden on Divorce, !"}}, {"text": "March 19, 1961", "label": "DATE", "start_char": 71440, "end_char": 71454, "source": "ner", "metadata": {"in_sentence": "It is alleged that the respondent treated the appellant with cruelty during their brief meeting on March 19, 1961, that she refused to allow to the appellant any access to the children, that on May 19, 1961 she wrote a letter (Ex."}}, {"text": "Ministry of Food and Agriculture, New Delhi", "label": "ORG", "start_char": 71622, "end_char": 71665, "source": "ner", "metadata": {"in_sentence": "318) to the Secretary to the Government of India, Ministry of Food and Agriculture, New Delhi, containing false and malicious accusations against the appellant and his parents and that she deserted the appellant and asked the Government .to provide her with separate maintenance."}}, {"text": "March 20, 1961", "label": "DATE", "start_char": 72730, "end_char": 72744, "source": "ner", "metadata": {"in_sentence": "295) which he made to th~ police on March 20, 1961."}}, {"text": "H1lsoury", "label": "OTHER_PERSON", "start_char": 74278, "end_char": 74286, "source": "ner", "metadata": {"in_sentence": "·----·-- , J (I) H1lsoury's Law> of England, 3rd Ed.,"}}, {"text": "Uovanmeut", "label": "OTHER_PERSON", "start_char": 74698, "end_char": 74707, "source": "ner", "metadata": {"in_sentence": "By that Jett, r, silt asked the Uovanmeut to provide separate maintenance for herself and the children."}}, {"text": "Febmary 27, 1961", "label": "DATE", "start_char": 75072, "end_char": 75088, "source": "ner", "metadata": {"in_sentence": "The allegations contained in the letter to which the appellant's cou'ascl has taken strong exception are these : ( 1) During the period that she lived with the appellant, she was ubjected to great harassment as well a~ mental and physieal torture; (2) The appellant had driven her out of the house on Febmary 27, 1961; (3) The appellant had deserted her and had declared that he will not have any connection with her and that he will not render any financial help for the maintenance of herself and the children."}}, {"text": "Pcravada Meutal Hospital", "label": "ORG", "start_char": 75776, "end_char": 75800, "source": "ner", "metadata": {"in_sentence": "He also refused to give medical help to her in her advauced stage or pregnancy; ( 4) The appellant had denied to her even the barest necessities of life like fooj and clothing; (5) The parents of the appellant were wicked persons and much of her suffering was due to the influence which they had on the appellant; (6) The appellant used to threaten her that he would divorce her, drive her out of the house and even do away with her life; (7) The plan to get her examined by Dr. Seth of the Pcravada Meutal Hospital was an htsmcere, wicked and evil move engineered by the appellant, his brother and his father, (8) On her refusal to submit to the medical examination any further, she was driven out of foe house with the children after being deprived of the valuables on her person and in her possession; and (9) The appellant had subjected her to such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with him."}}, {"text": "March 7, 196", "label": "DATE", "start_char": 76542, "end_char": 76554, "source": "ner", "metadata": {"in_sentence": "On March 7, 196 l the respondent's mother's aunt, Mrs. Gokhak wrote a letter (Ex."}}, {"text": "Gokhak", "label": "OTHER_PERSON", "start_char": 76594, "end_char": 76600, "source": "ner", "metadata": {"in_sentence": "On March 7, 196 l the respondent's mother's aunt, Mrs. Gokhak wrote a letter (Ex.", "canonical_name": "Gokhalc"}}, {"text": "Lohokare", "label": "OTHER_PERSON", "start_char": 77032, "end_char": 77040, "source": "ner", "metadata": {"in_sentence": "The letter shows that the appellant's\n\nbrother Dr. Lohokare, ancl his brother-in\"law Deolalkar, expre:; sed re-· gret that the espondent should have been got examined by a psychiatrist without previous intimation to any of her relatives."}}, {"text": "Deolalkar", "label": "OTHER_PERSON", "start_char": 77066, "end_char": 77075, "source": "ner", "metadata": {"in_sentence": "The letter shows that the appellant's\n\nbrother Dr. Lohokare, ancl his brother-in\"law Deolalkar, expre:; sed re-· gret that the espondent should have been got examined by a psychiatrist without previous intimation to any of her relatives."}}, {"text": "Gl1khalc", "label": "OTHER_PERSON", "start_char": 79544, "end_char": 79552, "source": "ner", "metadata": {"in_sentence": "There is no question that the respondent had no animus to dcc; ert the appellant and as stated by her or on her behalf more than once, the appellant had on February 27, 1961 reached her to Mrs. Gl1khalc's house in Poom."}}, {"text": "Poom", "label": "GPE", "start_char": 79564, "end_char": 79568, "source": "ner", "metadata": {"in_sentence": "There is no question that the respondent had no animus to dcc; ert the appellant and as stated by her or on her behalf more than once, the appellant had on February 27, 1961 reached her to Mrs. Gl1khalc's house in Poom."}}, {"text": "March 15, 1961", "label": "DATE", "start_char": 79811, "end_char": 79825, "source": "ner", "metadata": {"in_sentence": "On March 15, 1961 he made a complaint (Ex."}}, {"text": "Delhi Police", "label": "RESPONDENT", "start_char": 79864, "end_char": 79876, "source": "ner", "metadata": {"in_sentence": "292) to '.he Delhi Police wich begins with the recital that the respondent was in the Mentnl Hospital before marriage and that she needed treatment from a p'y<:11:trist."}}, {"text": "April 20, 1961", "label": "DATE", "start_char": 80218, "end_char": 80232, "source": "ner", "metadata": {"in_sentence": "On April 20, 1961 the appeHant wrote a letter (Ex."}}, {"text": "April 21, 1961", "label": "DATE", "start_char": 80673, "end_char": 80687, "source": "ner", "metadata": {"in_sentence": "Q,1 April 21, 1961 he wrote a letter (Ex_ 309) to the Director of Social Welfare, Delhi Administra-· tion, in which he took especial care to declare that the respondent \"was in the Poona Mental Hospital as a lunatic before the marriage\"."}}, {"text": "Poona Mental Hospital", "label": "ORG", "start_char": 80850, "end_char": 80871, "source": "ner", "metadata": {"in_sentence": "Q,1 April 21, 1961 he wrote a letter (Ex_ 309) to the Director of Social Welfare, Delhi Administra-· tion, in which he took especial care to declare that the respondent \"was in the Poona Mental Hospital as a lunatic before the marriage\"."}}, {"text": "May 6, 1961", "label": "DATE", "start_char": 81489, "end_char": 81500, "source": "ner", "metadata": {"in_sentence": "On May 6, 1961 the respondent sent a reply (Ex."}}, {"text": "July 19, 1961", "label": "DATE", "start_char": 82328, "end_char": 82341, "source": "ner", "metadata": {"in_sentence": "323 dated July 19, 1961 stated that the respondent needed mental treatment, that she may have written the letter Ex."}}, {"text": "November 23, 1961", "label": "DATE", "start_char": 82534, "end_char": 82551, "source": "ner", "metadata": {"in_sentence": "342 dated November 23, 1961 to the respondent's father, he described the respondent as\n\n\"your schizophrenic daughter\"."}}]}
{"document_id": "1975_3_993_1001_EN", "year": 1975, "text": "l I\n\nI ' !\n\nSTATE Of GUJARAT\n\nv. llA I FATIMA & AN R.\n\n- March J 9, 1975\n\n[A A · .\n\n. • • LAGlRISWAMI AND N. L. UNTWALlA~ JJ.]\n\nG\\'tdencc-Apprecicuio!l of-Rig/a of prirare If, ll . . t ei/CC- OIV l!5lllbltJftctf.\n\nl<.cspon<.lnts. Nos. 1 <mu ., were moth . d d h the brothl!rin-law of respond; nt No 1 t nn ·~ 1£ ter.\n\nThe 1.kceased \\~<IS occurrence, the relations between th· t' rr s?me uys before the t.lat~ of the the l<_tY of th~ occurrence there wasc.: a ~ufll~\n\n1 ~~~-;~rho~~ ~~d~~{~'id n\n\nlcc~,1sd. A ltttlc ater, \\\\lhcn the dccca5ed was sining in the bcfusc of hi$ father: tn-luw Jn the Ojlp~~Jtc ro~ of houes. rc:sponucnt No. J W<IIS alled to have g\n\nt~ the dccacd wtth a stick 1~ beat him.\n\nSome nci:;:hboun intervened nn~ tncd lo P•ICtfy both the parttcs.\n\nWhen the d~:easc!.l was going out responde t No. 1 l'Ut tc:r leg across the kJ:,'S of the deca.scd, a~ a result of \":hich he fell down on hts b;1ck.\n\nRespondent No. 2 immcditely caught hold of both the lwnds of the dcccnsed anr.J rcsronJent No. 1 :.S llltcd to h; ve squeezed his testicles n~ pulled them. Eventually thl! decca.'>ed uccumbc:d to the injury.\n\nAfter the utctJent rcsponent No •. l lodgcll ? complaint before the police st:ting that the c.leceascd, hts wafe anti Ills mothcr-mhtw caught holu of hc:r nnd save her blows\n\nm•d kids with a stkk as n result of \\\"hkh r.he fell down..\n\nHulding that the. prosecution Ca'ic wa-; proved beyond reasonable <.lvubt the Se~., ions Judc.: comh; tcd respondent No. l under s. JO.S. Part-!, J.P.C. .Re; pon-\n\nJnt No. 2 w:ts comktcd unth:r s. 3.23 rc.:ad with s. 144. LP.C. On appeal, the Hin Court, even uftcr believing the main part o( the occurrence, acquitted respondent No. 1 of the charges levelled against her nnd consequently respondent r-io. ::! ul\\u on the g•ouod thi.lt she must have done so in e:tercise of her right of private: tlcfcm; c inasmuch as she nmo; t ha\\'e squee:£ed the testicles of the dc-\n\n..:c=ad when he ww• !lho\\\\..:ring blo\\\\s \\\\ith a tick on her in order to protect hcr-xdf.\n\nAllov.ing the aprcal of the St<tt~.\n\nHELD ; (I) The trial court \\\\-U.S ri, gt !n belieing th¢ evidence '!r the P!O- ';:cution \\lt itncsc-; in regard to both the tnCIUI!I_lts and the occurrence m ques1.10n formine; purl of the second inciJent. .The H1gh Court dilfered from the Vli!W of the trial judge: on 11inl\"Y &.nd umuslamab_le grounJs. l998 D-E)\n\n(2J iherc . was ab, olutdy no basi~ r m:1h:rbl on the recrd to .enable, the J ligh Court to rcconl un '!rJcr of ncqlllllat m f~,-.ur of the resonJcnts b~ e..~· tending them a right of pm.-Le defence.\n\nE\\n gmng to lhe ma.xu~um c.dn~ m fuvour of the rcspunJI!nl'i that r~-; ponucnt No. ot th~ b!ows '\\ !th n st•ck at\n\ntl e huml'i of the dci..\"C>ts~J nml i':' the second 11\\Ctdcnt 1t lS mu~•Cest tha.t .her , r 1 o( uault on him \\\\-aS n dhbcrate counter-attack to cause htm such nJury ul !h . t ! •a t was ltkely to ~.:auc his death. 'fhe countcrattack cold m Dll , ~~~ 0~ u~ ~tl&d. in e,, crd~ of the right of pnvate ddcnce. (1000 f-G] ·.\n\nN 1 . hr com1, Iainl bcf0rc the polkc nor in the statment under\n\nI 3) ctt It: r an . ,\n\n1 N 1 of her ha\\'tnS squeezed 3 ,.., (' p (.' wt, there a wh1.., pcr by re:-; punvclt o. . . !f. .. .. , . r. ' • ' .. . rt of thi! uccu in e.xen; ie of her nght Of prt\\'<!IC 111~ tc'lln:lc!) auJ pma.te ~~ \\:a of privatt ddcn-.:c nlt tulcn by the re.ponets dfcncc. Nol only \"~ 1 t P3 .. p Cr p c but no basis for the plea was l:uu 1R in their titulcmnls. un er 5• sC~:llin \\\\itu~--s or by nl.lducins ny defence the cru!>scxatmnatao~ of r'h\\ft, lih ing that pl\"a \\\\'aS not l.lisl!h:\\rgeJ m ~~~ wy evidence. Th\" bunh:t~ o iying the tc-; t ot prrronderunce of probabtlltJed m\n\nh)' the I'C~!!pOI'l\\lenl~ C:\\~~h~pis -bsolutd)' no matcri<tl on the record to ea to ru\\'OUr of th ~t ~.lea. [91J~ GHl 'I w.:h. cunduton. c R 4 < J u n ) 1 0 1 , \" v D, lhi ..!11 mit•i ~~ rc~1io11 [ 19681 2 S. · • ;:~ • A!llllltl Uum CUll I u r. , . followed.\n\nJ7-LS64SC1J73\n\n....... ,. . .. . . ,-·-:-r---\"'~ ......... ~~· - .. .. . , . - .. , ·._\n\nI I I\n\nI I\n\n' .\n\n\\ ·\n\n• I\n\nI ; \\\n\nCRIMINAL APPELL,\\TE JURISDICTION : Criminal Appeal No. 67 of 1971.\n\nAppeal by spcial leave from the Judgment & Order dated the 17th July, 1970 of the Gujarat High Court in Crl. A. Nos. 287 and 128 of 1969.\n\nR. H. Dhebar and R. N. Sachthey, for the appellant.\n\nA. S. Qureshi, Vinal Deve and Kailash Mehta, for the respondents.\n\nThe JudgnJ.ent of the Court was dlivcred by\n\nUNTWALIA, I.- There is •a. locality known as Nani Malokoad m C the town of Kaloy, District Mehsena, Gurat. In this locality is a road (lane) running north to south. Bai Fatima, respondent no. 1 in this appeal filed on grant of special leave by the State of Gujarat, is the wife of Allarakha Hussemkhan. He had a younger brother named Gulabkhan Husseinklian. The victim of the occurrence is the said Gulabkhan. Both the brothers had their houses adjacent to each other in this lane faci!ag cast. The northern one was in occu- D pation of and belonged to the fi)cceased and the southern one was of Allarakha. There are a number of other houses situated around the houses of the.two brothers.\n\nOne such house is of Sardarkhan Muradkhan facing west abutting the road, two houses north of the house of the deceased. Jamiyatkhan is the son of Sardarkhan, father-in-law of the deceased Gulabkhan.\n\nIn the month of June, 1968 a compla41t was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that Allarakha, husband of respondent no.l was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality.\n\nThat had caused friction between the families of the two brothers. ·\n\nOn 27.6.1968 according to the prosecution story there were two incidents in the Angana i.e. space on the road in fro1J.1t of the houses\n\nof the parties-one was at 5.30 p.m. and the other at 6.30 p.m. The prosecution case is that a she-goat of Gulabkhan strayed in the house of Fatima. She began giving blows to the goat. There were altercations between the members of the families of the two brothers. Respondent no.2 who is a married daughter of respondent no.I and her G\n\nso~1 Liyakat who was 15 years old on the date of occurrence were also present at the time of this quarrel. They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi-a neighbourer and a close relation of Nannubibi Respondent no.l is said to have come out with a stick from her house and went to Gulabkhan to strike him. 011e Allarakha Rehman-a close neighbour came there, caught hold of the stick, quietened res- H pondent no.l and sent her back to her house The second part of the story is that Gulabkhan and Nannubibi went and sat in the Angaro of\n\nGUJARAT V; BAI FAll~A (Untwa/ia, /.) 995\n\nJami)'atkhan son of Sardarkhan, father-inlaw of Gulabkhan.\n\nRespondent no.l about an hour Iate.i.· went with a stick in her hand and hurled ablow oa Gulabkhan. Nannubibi intervened and got the blow on her right hand finger.\n\nGulabkhan directed respondent no.l to go back to her house by gestures of his hand and he also proceeded and\n\npused her towards• her house._ hen Gulabkhan reached the Angana of hts house: respondent no.l ts sard to have put her leg across his legs with the result that e fell dOWtl on his back.\n\nRespondet no.2 caught ho1d gf the hanGs of Gulabkhat:~· Respondent no.l sat on his legs and squeezed his testicles and pulled them.\n\nThe boy Liyakat is said to have bitten the deceased on the left shoulder.\n\nGulabkhoan thereafter was made to recline on a cot. Eventually he died of the shock due to the pressing of his private parts by respondent no. 1. Information was sent to the Police Station.\n\nA complaint of Naianubibi was recorded at about 10.30 p.m. Liyakat was sent for trial bei'tre the Juvenile Court. Respondent nos.l and 2 were tried by the Stssions Judge, Mehsana.\n\nThe learned Sessions Judge held the prosecution story to be proved . beyond reasonable doubt in all material particulars.\n\nFinding that the injury caused to Gulabkhan in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death, he convicted respondent no.l under section 304 Part-I of the lndizn Penal Code and sentenced her to undergo rigorous imprisonment for 7 years.\n\nShe was further convicted under section 323 a'ad was given a concurrent sentence for 3 months under this count.\n\nRespondent no.2 was convicted of an offence under section 323 read with section 114 of the Pe;.1al Code and was sentenced to undergo rigorous imprisonment for 3 months.\n\nThe respondents filed an appeal in the Gujarat High Court from the order of conviction recorded against them arid the State went up in appeal for their conviction under section 302 of the Penal Code read with section 114 in the case of respd.1dent no.2 The\n\nState appeal was dismissed by the High Court and that of the respondents allowed.\n\nThe State came to this Court and obtained special leave from the judgment of acquittal recorded by the High Court in the respondents appeaL The dismissal of the State appeal by the High Court is final. •\n\nThe three eye witnesses to the occurrence are P-W.3 Nannubibi.\n\nP.W.4 Noorbibi and P.W.6 Jel.latbibi.\n\nThe latter two are neighbourers and related to Nannubibi. The Trial Judge believed their evidence.\n\nHe a]so believed the evidence of P.W.7 Gulamanabi Shermohmad-a close neighbour of the parties to whom oan oral dying declaration is said to have been made by Gulabkhan before his death.\n\nIt may be stated here that P.W.8 Rasulbhai was sitting in the Bazar at some distance from the place of occurrence t1 the evening of the 27th June,\n\n1968. He got the information at about 9.45 p.m. about the death of Gulabkhan. He rushed to the Police Station and merely informed about his death.\n\nIt is also necessary to note here that respondent no.l had received some injuries o~ her persd11 in either of the incidents which took place\n\non the e:vening of 27th June, 1968. Prosecution did not explain the. injuries on her person but the Trial Judge inferred that they must have been caused in the first incident which took place at 5.30 p.m. and not in the second which was the subject matter of the charge against the respondents.\n\nThe High Court has held in favour of the prosecution on the main part of the occurrence, namely, squeezing of the testicles of the deceased by respondent no.l as a result of which he died. Yet it has disbelieved the prosc<.:ution case in regard to some other aspects. It has not •accepted the prosecution story that there were two incid ·nts in the cve'.ling.\n\nNor has it accepted the version that shortly _after the first incident Gulabkhan and Nannubibi had gone to the Angana of J umiyatkhan. The story of falling down of the deceased by the\n\ntrippi',1g of his legs by respondent no.l has been discarded by the High Court. So also the evidence of P.W.7 Gulamnabi. Even after b(!lie~\n\nving the main part of the occurrence the High Court boas exonerated respondent no. l of the charges levelled against her and consequently respondent no.2 also on the ground that she must have done so in. exercise of her rigbt of private defence in as much as she must }rave squeezed testicles of the deceased when he was showering blows with a stick on respondent no. 1 in order to protect herself. ' In our opinion there arc: two many conjectures, surmises and contradictions in the judgment of the High Court. The respondents had not examined a.1y witness to give any counter version of the occurrence or to justify the assault on testicles of the deceased which rcsultecf in his death.\n\nThe High Court has said in its judgment:-\n\n( 1) \"There is also no doubt that since some day~ _prior\n\nto the date of the incident the relations between the\n\ndeceased and the family of accused no.l were not cordial.\" •\n\n(2) \"There is no doubt that a quarrel did arise on that\n\nday\" (meaning thereby the date of occurrence \"between the deceased and accused no. 1 in respect of a\n\ngoat.\"\n\n(3) \"It is very reasonably clear that the squeezing of the testicles of the deceased was in an probability the act of accused no.l\"\n\n( 4) \"There is further no doubt that the deceased did die on account of squeezing of his testicles in the evening G that day at round about 8.30 p.m.\"\n\nOn the findings aforesaid if theclaim of right or private defence put forward on behalf of respoadent no.l was untenable as we shall show hereinafter it was wholly so, then it is _plain that the High Court ought not to have interferred with the .order of conviction recorded bv the Trial Court. Even. in face of the said findings the, High Court criticized H the prosecution case as regards some details . of the occurrence or the\n\nncidents and rejected a good portion of it.\n\nWe shall briefly shov that the said rejcctid, l by the High Court was wholly unjustified.\n\n.A There were two incidents accord!ng to the prosecution case which happened in the evening at an interval of about •an hour. High Court says it was not so and says so without any basis.\n\nThe prosecution did not stand to. ga~.1 nything by splitting up the evening incident in two parts.\n\nEven in the First Information Report, Ext.32 recorded at 10.30 p.m. in the night the two incidents were separately narrated.\n\n8 There was ab~Jlutely no reason for the High Court to interfere with the findings of the Trial Court in that regard.\n\nTbe High Court does '.lot accept the prosecution sto.ry that deceased Gulabkhan had gone to the Angana of J amiyatkhan and respon<fent . no. 1 went there as an aggressor wiTh a stick in her hand. This story\n\nh•as been discarded on the ground that it is not mentioned P.1 the First Information Report nor in the statements of the other two witnesses before the police.\n\nWe. may observe •again that the prosecution did not\" stand to gain anything by unnecessarily or falsely introducing the story of Gulabkhan's going to the Angana of his father-in-law. The main occurrence happened in the Ah.gana of Gulabkh'ari.\n\nThe places are so very near that the story of Gulabkhan goi~1g to the Angana of his rather-in-law was not an important one to be remempered by the witneses to be recited before the police. It mattered little wnether respondent no. I went as an aggressor to the Angana of the deceased or a bit further North to the Angana of J amiyatkhan.\n\nHigh Court also discarded the story of the tripping of the legs of Gulabkhan because it is not mentioned i'.l the First Information Report.\n\nBut the.l it ought to have been noticed that no such ontradiction was to be found in the evidence of P.Ws 4 and 6 in Court and their statements before the police. It must, therefore~ be presumed that they had given out the ripping story before the police.\n\nThe High Cotirt has not thought it safe to rely upon the evidence of the three eye witnesses 1.1one of whom was found to be disinterested in the prosecution.\n\nThe comment is that Allarakha Rehman and Mansabu who lived in the house opposite .to the deceased have not been examined by the prosecution. According to the prosecution case the said Allarakha had merely quietened respondent no. 1 in the first iacident and Mansabu came after the second incident was over. In material particulars we find the evidence of the eye witnesses very convincing and natural. In our opinion the High Court was not justified in thinking that it was not safe to rely on their evidence wholly and speially when the main part of the occurrece which fastened the guilt on respondent no.l was not disbelieved. . . '\n\nAbsence of any details in the st•atement recorded at the police station on the basis of the information given by P.W. 8 Rasulbhai.l, m.- necessarily led the High Court to remark that no one k1ucw upto 10.00 p.m. as to how Gulabkhan died.\n\nThis contradicts the earlier findings of the Hig~. Court that h.e died as result of the squee7.iilg of his testicles by respondent :t10.l Rasulbhai, according to his evic)ence did not get the details of the occrrence and so did not give any to the police.\n\nThe High Court has given 3 or 4 reasO'as for dscarding the eidene of P.W. 7 Gulamnabi to whom the oral dying declaration JS said to have been made by the deceased. The first reason given by the High Court is that when this witness went near Gulabkhan the three women who claimed to have witnessed the occurrence were ·-sitting near him; none of them related the story to Gulamuabi. Wlien he put a question to Gulabkhan who being in a position to give the answer gave it, it was not necessary for him to talk to the women thereafter. Gulatnnabi was the person who had gone to call Dr, Rao to examine Gulabkhan. Dr. Rao came at 8.30 p.m. ai11d declared him to be dead. It was not necessary for Gulamnoabi to relate the details\n\nof the occurrence to Dr. Rao as he himself had not witnessed it A!1other reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 10.00 p.m. no one knew the exact reasQI, l for the death of Gulabkhan. Having accepted the prosecution story about the cause of his death it woas unnecessary to dilate upon the matter any further. The High Court has not disbelieve:d the lodging of the complaint before the police on the statement of' Nannubibi at 1.0.00 p.m. The last reason giyen is the non-examinatim1 of Dr. Rao by the prosecution. His evidence was\n\nof no ttSe it and the comment of the High Court is not, the-refore, justified. -\n\nWe have unhesitatingly come tothe cvnclusion that the Trial Court was right in believing the evidence of the prosecution witnesses in regard to both the incidents crad the occurrence in question forming part of the second incident. The High ourt differed from the view of\n\nhe Trial Judge on. flimsy and unsustainable grounds.\n\nNow we come to deal with the question of right of private defence.\n\nIt is no doubt true that the prosecution did not explain the injuries on the per&on of responde1at no.I. P.W.5 Dr. S. C. Masalia who had examined the injuries on the side of the prosecution also examtned Fatima, respondent no.l when she was sent to him by the police.\n\nFatima Bibi had lodged a complaint before. the police which was found to be a non-cognizable offence at about 8.00 p.m. on 27-6-1968.\n\nThat is Ext.44. In this complaint she stated that her young one of the goat had go~1e in the Angana of Gulabkhan. Three persons named in the complaint were Gulahkhan, Bai-bibi, mother-in-law of Gulaokhan and Nannubibi, hi!; wife.\n\nThe two ladies caught hold of her Odhana and began to give her blows of kicks and ftsts.\n\nGulabkhan gav<! stick blows on the right hand and so she fell down on the ground and began to shout. The injuries found on the persa'-1 of Fatima Bibi were 5 in number. Three contusions on the right forearm, one contusion on posteric-parietal part of right side of scalp and one contusid1.1 on scapular part of right side of back. The inJuries were all of minor character. In her statement under section 342 of the Code of Criminal Procedure, 1898 respondent no. 1 stated almost the soame story a!ad added that Gulabkhan was 4runk while he was abusing her. Neither 'in Ext.44. nor in the statemetat under section\n\n342 thee was a whispe~ by by respondent no.l of her having squeezed the testicles an~ the pnvatc part of Gulabkhan.\n\nNothing was stated to give any inkling of her having squeezed the testicles of Gulabkhan\n\nin exercise of her right of private defence to protect her from further\n\nassat. Nor was any evidence adduced in Court to give ay counter versiOn of the occurre.nce. No foundtation was laid to enable the court to ac9uit the. respondents granting them a right of private de fence. • It dJd reqrre a pure conjecture and imagination to hold the respondents not guilty by extendl.lg to them the right of private defence.\n\n. . I~ a situation like this when the prosecution fails tC' explain the .\n\nIDJunes on the person of an accused, depending on the facts of each case, any of the three results. may follow :\n\n( 1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. -\n\n(2) It makes the prosecution version of the occurreiJ, ce\n\ndoubtful and the charge (!gainst the accused cannot be held to have been proved beyond reasonable doubt.\n\n(3) It does not affect the prosecution case at all.\n\nD Question is in which category the present case falls?\n\nI•a unhi Ram and others v. Delhi Administration(l) Hegde, J delivering the judgment of this Court has said at page 458 :\n\n\"It is true that appellants i1a their statement under section 342 Cr. P.C. had not taken the plea of prvate defence, but necessary basis for that plea had been laid in the cross• examination of the prosecution witnesses as well as by adduc ing defence evide~1ce. It is welhsettled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the material on record-see In Re-Jogali Bhaige Naiks and another- A.l.R. 1927 Mad. 97. The burden uf establishing that plea is on the accused and that burden can be discarged by showing preponderance of probabilities in favour of that plea on t)le ba:; is of the material on record.\"\n\nIn the instant case not only the plea of private defence was not taken by the respondents in their statement under section 34f but no basis for that plea was laid h1 the cross-examination of the prosecution witneses or by adducing any defence evidence.\n\nIn our opinion the burden of establishing tlrat plea was not discharged in any manner by the respondents even applying the test of prepo•.1derance of probabilities in favour of that plea. There is absolutely no material in the records of this case to lead to any such conclusion. We do not think that the Trial Judge was right in assuming that respondent nt). 1 must have received the injuries in the first incident. It may well be that she received the injuries in the second incident.\n\nSince prosecution did not come forward to show in what manner she received these\n\n(1) [1968] (2) S.C.R. 455.\n\nA injuries, assumption can be made to the farthest .etet in. favour. of , the responde11ts that respondent no.l received the mJunes wtth stck, may be at the hands of Gulabkhan or any other person on hts. sde.\n\nBut surely the assumption could not be stretched to the. exte?t It as been done by the High Cotirt. The High Court is not nght m saytg th'at by the tripping of the legs Gulabkhan would have fallen on hts B face and t11ot on. his back. A man may fall on back or on face depending upon the side and the angle of the tripping. The other error committed by the High Court is when it says :\n\n\"lt appears t0 us to be more probable that while the quarrel was. going on in the Angana of the deceased and the deceased was delivering blows of stick on the accused no. 1, she squeeze.d his testides in order to liberate herself from his attack. It appears that she did so while the deceased was standing and giving blows on her.\"\n\nThe deceased was wearing a pant and it is impossible to imagine that the squeezing of the testicles could be done by respondent no. 1 to the extent of causing his death soon after the squeezing when Gulabkhan was in a standi111g .position. . In 'tflat postion he could have at once moved back and liberated himself.\n\nThe extent of squeezing done in this case was possible only if respondent no. I could sit on his legs after he had fallen down at hi~ back. This lends further support to the prosecution s!9ry that respondent no: 2 caught his hands from behind meaning thereby from towards the side of his head, in the front being respondent ~10. 1 on his legs. In our opinion, therefore, there was absolutely no basis or. material in the records of this case to enable the High Court to record an order of acquittal in favour of the respondents by extending them a right of private defence. Even going to the maximum in favour of the respondents that respondent no. I . got the blows with a stick at the hands of Gulabkhan a•11d in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death. The counter-'att!lck could in no sense be an :...ttack in exercise of the right of private defence.\n\nIn material particubrs the evidence of th~ three eye witnesses as also the evidence of dyh1g declaration of the deceased before P .. W . . Gulamnabi is so convincing and natural that no doubt creeps into\n\nit for the failure of the prosecution to explain the injuries on the person of respondent no. 1. The prosecution case is not shaken at all on that account. 11t1 our judgment this is _'3 case which falls in the third category\n\nGUJARAT V. BAI FATIMA (Untwalia, /.) toot\n\nas enumerated above. In agreement with _the Trial Court, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt.\n\nFor the reasons stated above, we allow this -appeal, set aside the order of the High Court and restore that of the Trial Omrt as against respondent no. 1 as respects her convictions and sentences and as against respondent no. 2 only in regard to her conviction. It is no use sending the young girl back to jail for a few months. While. maintaining her conviction under section 323/114 of the Pe11al Code, we reduce her sentence to the period already undergone.\n\nP.B.R.\n\nAppeal allowed •.", "total_entities": 70, "entities": [{"text": "STATE Of GUJARAT", "label": "PETITIONER", "start_char": 12, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT", "offset_not_found": false}}, {"text": "llA I FATIMA & AN", "label": "RESPONDENT", "start_char": 33, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "BAI FATIMA & ANR", "offset_not_found": false}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1555, "end_char": 1559, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 144", "label": "PROVISION", "start_char": 1575, "end_char": 1581, "source": "regex", "metadata": {"statute": null}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 4264, "end_char": 4276, "source": "ner", "metadata": {"in_sentence": "R. H. Dhebar and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4281, "end_char": 4295, "source": "ner", "metadata": {"in_sentence": "R. H. Dhebar and R. N. Sachthey, for the appellant."}}, {"text": "A. S. Qureshi", "label": "LAWYER", "start_char": 4317, "end_char": 4330, "source": "ner", "metadata": {"in_sentence": "A. S. Qureshi, Vinal Deve and Kailash Mehta, for the respondents."}}, {"text": "Vinal Deve", "label": "LAWYER", "start_char": 4332, "end_char": 4342, "source": "ner", "metadata": {"in_sentence": "A. S. Qureshi, Vinal Deve and Kailash Mehta, for the respondents."}}, {"text": "Kailash Mehta", "label": "LAWYER", "start_char": 4347, "end_char": 4360, "source": "ner", "metadata": {"in_sentence": "A. S. Qureshi, Vinal Deve and Kailash Mehta, for the respondents."}}, {"text": "Bai Fatima", "label": "RESPONDENT", "start_char": 4594, "end_char": 4604, "source": "ner", "metadata": {"in_sentence": "Bai Fatima, respondent no."}}, {"text": "State of Gujarat", "label": "ORG", "start_char": 4677, "end_char": 4693, "source": "ner", "metadata": {"in_sentence": "1 in this appeal filed on grant of special leave by the State of Gujarat, is the wife of Allarakha Hussemkhan."}}, {"text": "Allarakha Hussemkhan", "label": "OTHER_PERSON", "start_char": 4710, "end_char": 4730, "source": "ner", "metadata": {"in_sentence": "1 in this appeal filed on grant of special leave by the State of Gujarat, is the wife of Allarakha Hussemkhan.", "canonical_name": "Allarakha Hussemkhan"}}, {"text": "Gulabkhan Husseinklian", "label": "OTHER_PERSON", "start_char": 4763, "end_char": 4785, "source": "ner", "metadata": {"in_sentence": "He had a younger brother named Gulabkhan Husseinklian."}}, {"text": "Allarakha", "label": "OTHER_PERSON", "start_char": 5025, "end_char": 5034, "source": "ner", "metadata": {"in_sentence": "The northern one was in occu- D pation of and belonged to the fi)cceased and the southern one was of Allarakha.", "canonical_name": "Allarakha Hussemkhan"}}, {"text": "Sardarkhan Muradkhan", "label": "OTHER_PERSON", "start_char": 5141, "end_char": 5161, "source": "ner", "metadata": {"in_sentence": "One such house is of Sardarkhan Muradkhan facing west abutting the road, two houses north of the house of the deceased.", "canonical_name": "Sardarkhan Muradkhan"}}, {"text": "Jamiyatkhan", "label": "OTHER_PERSON", "start_char": 5240, "end_char": 5251, "source": "ner", "metadata": {"in_sentence": "Jamiyatkhan is the son of Sardarkhan, father-in-law of the deceased Gulabkhan.", "canonical_name": "J amiyatkhan"}}, {"text": "Sardarkhan", "label": "OTHER_PERSON", "start_char": 5266, "end_char": 5276, "source": "ner", "metadata": {"in_sentence": "Jamiyatkhan is the son of Sardarkhan, father-in-law of the deceased Gulabkhan.", "canonical_name": "Sardarkhan Muradkhan"}}, {"text": "Gulabkhan", "label": "OTHER_PERSON", "start_char": 5308, "end_char": 5317, "source": "ner", "metadata": {"in_sentence": "Jamiyatkhan is the son of Sardarkhan, father-in-law of the deceased Gulabkhan.", "canonical_name": "Gulabkhoan"}}, {"text": "Kalol Municipality", "label": "GPE", "start_char": 5375, "end_char": 5393, "source": "ner", "metadata": {"in_sentence": "In the month of June, 1968 a compla41t was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that Allarakha, husband of respondent no.l was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality."}}, {"text": "Allarakha", "label": "WITNESS", "start_char": 5487, "end_char": 5496, "source": "ner", "metadata": {"in_sentence": "In the month of June, 1968 a compla41t was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that Allarakha, husband of respondent no.l was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality."}}, {"text": "27.6.1968", "label": "DATE", "start_char": 5734, "end_char": 5743, "source": "ner", "metadata": {"in_sentence": "On 27.6.1968 according to the prosecution story there were two incidents in the Angana i.e. space on the road in fro1J.1t of the houses\n\nof the parties-one was at 5.30 p.m. and the other at 6.30 p.m. The prosecution case is that a she-goat of Gulabkhan strayed in the house of Fatima."}}, {"text": "Fatima", "label": "RESPONDENT", "start_char": 6008, "end_char": 6014, "source": "ner", "metadata": {"in_sentence": "On 27.6.1968 according to the prosecution story there were two incidents in the Angana i.e. space on the road in fro1J.1t of the houses\n\nof the parties-one was at 5.30 p.m. and the other at 6.30 p.m. The prosecution case is that a she-goat of Gulabkhan strayed in the house of Fatima.", "canonical_name": "Fatima Bibi"}}, {"text": "Liyakat", "label": "WITNESS", "start_char": 6210, "end_char": 6217, "source": "ner", "metadata": {"in_sentence": "I and her G\n\nso~1 Liyakat who was 15 years old on the date of occurrence were also present at the time of this quarrel."}}, {"text": "Nannubibi", "label": "OTHER_PERSON", "start_char": 6346, "end_char": 6355, "source": "ner", "metadata": {"in_sentence": "They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi-a neighbourer and a close relation of Nannubibi Respondent no.l is said to have come out with a stick from her house and went to Gulabkhan to strike him."}}, {"text": "Gulabkhan", "label": "GPE", "start_char": 6374, "end_char": 6383, "source": "ner", "metadata": {"in_sentence": "They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi-a neighbourer and a close relation of Nannubibi Respondent no.l is said to have come out with a stick from her house and went to Gulabkhan to strike him."}}, {"text": "Rahematbibi", "label": "WITNESS", "start_char": 6389, "end_char": 6400, "source": "ner", "metadata": {"in_sentence": "They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi-a neighbourer and a close relation of Nannubibi Respondent no.l is said to have come out with a stick from her house and went to Gulabkhan to strike him."}}, {"text": "Noorbibi", "label": "WITNESS", "start_char": 6412, "end_char": 6420, "source": "ner", "metadata": {"in_sentence": "They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi-a neighbourer and a close relation of Nannubibi Respondent no.l is said to have come out with a stick from her house and went to Gulabkhan to strike him."}}, {"text": "Allarakha Rehman", "label": "WITNESS", "start_char": 6580, "end_char": 6596, "source": "ner", "metadata": {"in_sentence": "011e Allarakha Rehman-a close neighbour came there, caught hold of the stick, quietened res- H pondent no.l and sent her back to her house The second part of the story is that Gulabkhan and Nannubibi went and sat in the Angaro of\n\nGUJARAT V; BAI FAll~A (Untwa/ia, /.) 995\n\nJami)'atkhan son of Sardarkhan, father-inlaw of Gulabkhan."}}, {"text": "Liyakat", "label": "OTHER_PERSON", "start_char": 7510, "end_char": 7517, "source": "ner", "metadata": {"in_sentence": "The boy Liyakat is said to have bitten the deceased on the left shoulder."}}, {"text": "Gulabkhoan", "label": "OTHER_PERSON", "start_char": 7577, "end_char": 7587, "source": "ner", "metadata": {"in_sentence": "Gulabkhoan thereafter was made to recline on a cot.", "canonical_name": "Gulabkhoan"}}, {"text": "Naianubibi", "label": "OTHER_PERSON", "start_char": 7783, "end_char": 7793, "source": "ner", "metadata": {"in_sentence": "A complaint of Naianubibi was recorded at about 10.30 p.m. Liyakat was sent for trial bei'tre the Juvenile Court."}}, {"text": "section 304", "label": "PROVISION", "start_char": 8256, "end_char": 8267, "source": "regex", "metadata": {"statute": null}}, {"text": "Part-I of the lndizn Penal Code", "label": "STATUTE", "start_char": 8268, "end_char": 8299, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 323", "label": "PROVISION", "start_char": 8397, "end_char": 8408, "source": "regex", "metadata": {"linked_statute_text": "Part-I of the lndizn Penal Code", "statute": "Part-I of the lndizn Penal Code"}}, {"text": "section 323", "label": "PROVISION", "start_char": 8528, "end_char": 8539, "source": "regex", "metadata": {"linked_statute_text": "Part-I of the lndizn Penal Code", "statute": "Part-I of the lndizn Penal Code"}}, {"text": "section 114", "label": "PROVISION", "start_char": 8550, "end_char": 8561, "source": "regex", "metadata": {"linked_statute_text": "Part-I of the lndizn Penal Code", "statute": "Part-I of the lndizn Penal Code"}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 8687, "end_char": 8705, "source": "ner", "metadata": {"in_sentence": "The respondents filed an appeal in the Gujarat High Court from the order of conviction recorded against them arid the State went up in appeal for their conviction under section 302 of the Penal Code read with section 114 in the case of respd.1dent no.2 The\n\nState appeal was dismissed by the High Court and that of the respondents allowed."}}, {"text": "section 302", "label": "PROVISION", "start_char": 8817, "end_char": 8828, "source": "regex", "metadata": {"linked_statute_text": "Part-I of the lndizn Penal Code", "statute": "Part-I of the lndizn Penal Code"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8836, "end_char": 8846, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 114", "label": "PROVISION", "start_char": 8857, "end_char": 8868, "source": "regex", "metadata": {"linked_statute_text": "Part-I of the lndizn Penal Code", "statute": "Part-I of the lndizn Penal Code"}}, {"text": "Jel.latbibi", "label": "WITNESS", "start_char": 9283, "end_char": 9294, "source": "ner", "metadata": {"in_sentence": "P.W.4 Noorbibi and P.W.6 Jel.latbibi."}}, {"text": "Gulamanabi Shermohmad", "label": "WITNESS", "start_char": 9436, "end_char": 9457, "source": "ner", "metadata": {"in_sentence": "He a]so believed the evidence of P.W.7 Gulamanabi Shermohmad-a close neighbour of the parties to whom oan oral dying declaration is said to have been made by Gulabkhan before his death."}}, {"text": "Rasulbhai", "label": "WITNESS", "start_char": 9617, "end_char": 9626, "source": "ner", "metadata": {"in_sentence": "It may be stated here that P.W.8 Rasulbhai was sitting in the Bazar at some distance from the place of occurrence t1 the evening of the 27th June,\n\n1968."}}, {"text": "27th June, 1968", "label": "DATE", "start_char": 10041, "end_char": 10056, "source": "ner", "metadata": {"in_sentence": "It is also necessary to note here that respondent no.l had received some injuries o~ her persd11 in either of the incidents which took place\n\non the e:vening of 27th June, 1968."}}, {"text": "Gulamnabi", "label": "WITNESS", "start_char": 10974, "end_char": 10983, "source": "ner", "metadata": {"in_sentence": "So also the evidence of P.W.7 Gulamnabi."}}, {"text": "J amiyatkhan", "label": "OTHER_PERSON", "start_char": 14403, "end_char": 14415, "source": "ner", "metadata": {"in_sentence": "I went as an aggressor to the Angana of the deceased or a bit further North to the Angana of J amiyatkhan.", "canonical_name": "J amiyatkhan"}}, {"text": "Allarakha Rehman", "label": "OTHER_PERSON", "start_char": 14995, "end_char": 15011, "source": "ner", "metadata": {"in_sentence": "The comment is that Allarakha Rehman and Mansabu who lived in the house opposite .to the deceased have not been examined by the prosecution.", "canonical_name": "Allarakha Hussemkhan"}}, {"text": "Mansabu", "label": "OTHER_PERSON", "start_char": 15016, "end_char": 15023, "source": "ner", "metadata": {"in_sentence": "The comment is that Allarakha Rehman and Mansabu who lived in the house opposite .to the deceased have not been examined by the prosecution."}}, {"text": "Rasulbhai.l", "label": "WITNESS", "start_char": 15732, "end_char": 15743, "source": "ner", "metadata": {"in_sentence": "Absence of any details in the st•atement recorded at the police station on the basis of the information given by P.W. 8 Rasulbhai.l, m.- necessarily led the High Court to remark that no one k1ucw upto 10.00 p.m. as to how Gulabkhan died."}}, {"text": "Rasulbhai", "label": "RESPONDENT", "start_char": 15989, "end_char": 15998, "source": "ner", "metadata": {"in_sentence": "This contradicts the earlier findings of the Hig~. Court that h.e died as result of the squee7.iilg of his testicles by respondent :t10.l Rasulbhai, according to his evic)ence did not get the details of the occrrence and so did not give any to the police.", "canonical_name": "Rasulbhai"}}, {"text": "Gulamuabi", "label": "OTHER_PERSON", "start_char": 16479, "end_char": 16488, "source": "ner", "metadata": {"in_sentence": "The first reason given by the High Court is that when this witness went near Gulabkhan the three women who claimed to have witnessed the occurrence were ·-sitting near him; none of them related the story to Gulamuabi.", "canonical_name": "Gulatnnabi"}}, {"text": "Gulatnnabi", "label": "OTHER_PERSON", "start_char": 16641, "end_char": 16651, "source": "ner", "metadata": {"in_sentence": "Gulatnnabi was the person who had gone to call Dr, Rao to examine Gulabkhan.", "canonical_name": "Gulatnnabi"}}, {"text": "Rao", "label": "OTHER_PERSON", "start_char": 16692, "end_char": 16695, "source": "ner", "metadata": {"in_sentence": "Gulatnnabi was the person who had gone to call Dr, Rao to examine Gulabkhan."}}, {"text": "Gulamnoabi", "label": "OTHER_PERSON", "start_char": 16800, "end_char": 16810, "source": "ner", "metadata": {"in_sentence": "It was not necessary for Gulamnoabi to relate the details\n\nof the occurrence to Dr. Rao as he himself had not witnessed it A!1other reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 10.00 p.m. no one knew the exact reasQI, l for the death of Gulabkhan.", "canonical_name": "Gulatnnabi"}}, {"text": "Gulamnabi", "label": "OTHER_PERSON", "start_char": 16951, "end_char": 16960, "source": "ner", "metadata": {"in_sentence": "It was not necessary for Gulamnoabi to relate the details\n\nof the occurrence to Dr. Rao as he himself had not witnessed it A!1other reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 10.00 p.m. no one knew the exact reasQI, l for the death of Gulabkhan.", "canonical_name": "Gulatnnabi"}}, {"text": "Rasulbhai", "label": "RESPONDENT", "start_char": 16998, "end_char": 17007, "source": "ner", "metadata": {"in_sentence": "It was not necessary for Gulamnoabi to relate the details\n\nof the occurrence to Dr. Rao as he himself had not witnessed it A!1other reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 10.00 p.m. no one knew the exact reasQI, l for the death of Gulabkhan.", "canonical_name": "Rasulbhai"}}, {"text": "S. C. Masalia", "label": "WITNESS", "start_char": 18030, "end_char": 18043, "source": "ner", "metadata": {"in_sentence": "I. P.W.5 Dr. S. C. Masalia who had examined the injuries on the side of the prosecution also examtned Fatima, respondent no.l when she was sent to him by the police."}}, {"text": "Fatima", "label": "RESPONDENT", "start_char": 18119, "end_char": 18125, "source": "ner", "metadata": {"in_sentence": "I. P.W.5 Dr. S. C. Masalia who had examined the injuries on the side of the prosecution also examtned Fatima, respondent no.l when she was sent to him by the police.", "canonical_name": "Fatima Bibi"}}, {"text": "Fatima Bibi", "label": "RESPONDENT", "start_char": 18184, "end_char": 18195, "source": "ner", "metadata": {"in_sentence": "Fatima Bibi had lodged a complaint before.", "canonical_name": "Fatima Bibi"}}, {"text": "27-6-1968", "label": "DATE", "start_char": 18307, "end_char": 18316, "source": "ner", "metadata": {"in_sentence": "the police which was found to be a non-cognizable offence at about 8.00 p.m. on 27-6-1968."}}, {"text": "Gulahkhan", "label": "OTHER_PERSON", "start_char": 18475, "end_char": 18484, "source": "ner", "metadata": {"in_sentence": "Three persons named in the complaint were Gulahkhan, Bai-bibi, mother-in-law of Gulaokhan and Nannubibi, hi!;", "canonical_name": "Gulabkhoan"}}, {"text": "Bai-bibi", "label": "OTHER_PERSON", "start_char": 18486, "end_char": 18494, "source": "ner", "metadata": {"in_sentence": "Three persons named in the complaint were Gulahkhan, Bai-bibi, mother-in-law of Gulaokhan and Nannubibi, hi!;"}}, {"text": "Gulaokhan", "label": "OTHER_PERSON", "start_char": 18513, "end_char": 18522, "source": "ner", "metadata": {"in_sentence": "Three persons named in the complaint were Gulahkhan, Bai-bibi, mother-in-law of Gulaokhan and Nannubibi, hi!;", "canonical_name": "Gulabkhoan"}}, {"text": "Gulabkhan", "label": "WITNESS", "start_char": 18640, "end_char": 18649, "source": "ner", "metadata": {"in_sentence": "Gulabkhan gav<!"}}, {"text": "section 342", "label": "PROVISION", "start_char": 19036, "end_char": 19047, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 19055, "end_char": 19087, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section\n\n342", "label": "PROVISION", "start_char": 19245, "end_char": 19257, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 342", "label": "PROVISION", "start_char": 20652, "end_char": 20663, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 21404, "end_char": 21414, "source": "regex", "metadata": {"statute": null}}, {"text": "section 323", "label": "PROVISION", "start_char": 25369, "end_char": 25380, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_1_107_123_EN", "year": 1975, "text": "> -\n\nOM PRABHA JAIN\n\nCHARAN DAS & ANR\n\nApril 10, 1975\n\n[M. H. BEG, Y. V. CHANDRACHUD AND A. C. GUPTA, JJ.]\n\nRepresentation of the People Act (43 of\n\n1951) .Ss. 77, 116-A and 123 (6 )-Corr, upt Practice-Standard of proof.\n\nPractice and Procedure-Finding by High Court in election disputes-lnterfrreiice by Supre1ne Court.\n\nSection 77 of the, Represel1tation of the People Act, 1951, tirovides that every can\"-idate at an election shall keep an account of ependiture incurred C in connection with the election and that the total expenditure shall not exceed the amount prescribed.\n\nThe appellant and the first respondent contested the election to the State Legislature and the first respondent was successful.\n\nThe appellant chal_lenged the election on the ground, inter alia, that the first respondent was guilty of corrupt practice having incurred or authorised expenditure in contravention D -0f s. 77.\n\nThe election petition \\Vas dismissed by the High Court.\n\nIn appeal to this Court, it \\Vas contended that there was evidence to show that the expenditure incurred by D, in connection with the use of t\\VO jeeps during election \\Vas authorised by the first respondent and if that expenditure was added to the amount shown by the first respondent as his expenditure, the total expenditure would exceed the prescribed limit of Rs. 9000.\n\nDuring the pendency of the appeal. s. 77 was amended by inserting two Explanations in the section. Explanation 1 provides that the expenditure in- .curred or authorised in connection wtih the election of a candidate by a political party or by any other association or body of persons or by any individual other than the candidate or his election agent, shall not be deemed to be expenditure in connection with the election, incurred or authorised by the F candidate or his election agent.\n\nDismWiing the appeal,\n\nHELD: (Per curia1n) The allegation of corrupt practice af.[ainst the respondent has not been proved beyond reasonable doubt.\n\n[109H & 123F]\n\n(Per ~I. H. Beg, J.)-If a charge of a corrupt practice is held to have G been cstablislv!d against a candidate, it may have grave repercussions on his reputation and poJitical future; and, therefore, prudence requires that the 'Stricter standard of proof of a criminal Charge should be applied. [109F]\n\nThe High Court has held that as the precise connection. of D with the first respondent was not satisfactorily established, the charge of corrupt prac~ tice against the first respondent must fail. This Court will not, \\Vithout a b:tter reason than i; ierely that another inference on the evidence is possibk~.\n\ndisturb such a finding even on a statutory first appeal on facts.\n\nThere is if a bare balance of probabilities could decide the case, sufficient circumstan~ H tial evdence to connect the expenditure incurred by D with the respondent who did not even produce any account books, though the law requires hin1 to maintain sat_isfactory cconts to support hi~ return of expenses; yet, if the rules of c1rcumstant1al evidence were applred with the strictness \\\\rith\n\nwhi.ch they are applicable in criminal cases it must be held that the case against the first respondent has not been proved beyond reasonable doubt\n\n!109D-E-F-G-H]\n\n108 SUPREME COURT REPORT~ [1975] SUPP. s.c.R.\n\n(Per Y. V. Chandrachud and A. C. Gupta, JJ.) : (I) The appeal has to be decided in the light of the Explanation added to s. 77.\n\n(2) The findings of fact recorded by the High Court should not be disturbed in an appeal under s. 116-A, unless there was some serious error in the findings.\n\nJn the present case, the Judge who tried the petition, had recorded his impression about the demeanour of the V.'itnesses whenever he thought necessary. The findings based solely on the demeanour of the witnesses cannot be reversed in appeal, but the conclusions of fac.t recorded upon a consideration of the probabilities can be tested to see if they contain any serious error [121H 122A]\n\n(3) A charge of corrupt prnctice is quasi-criminal in nature and must be pro\\ed beyond reasonable doubt.\n\n[122D1\n\n( 4) Before the High Court the parties proceeded on the footing that the question raised related to both .-illegations,, namely, that the respondent ir.curred or authorised the expenditure incurred on the two jeeps, and, therefore, the scope of the inquiry in appeal cannot be limited only to the question \\Vhether the respondent himself incurred the expenditure.\n\n[121A]\n\n(5) There is no evidence of the respondent incurring or any direct evidence of his authorising the expenditure incurred for the jeeps.\n\n[121D]\n\n( 6) From the fact th~1t the respondent used the jeeps once or t\\.vice, it could not be inferred that he paid for their hire, because, it is \\\\'ell known that candidates at an election very often use their supporters' vehicles.\n\n[121D-E1\n\n(7) There is also no reliable circumstantial evidence to connect the respondent with the expenditure il).curred by D.\n\n[121H1\n\n(8) The respondent did not produce his accol1nt of election expenses~ his case being that he had destroyed the papers after preparing his return of election expenses.\n\nFrom the fact of non-production of accounts no adverse inference can be drawn against the respondent that the expenditure was really incurred by the respondent himself. D who made the payments gave evidence, and he denied that the respondent authorised him to make the payments. and this evidence was accepted by the High Court.\n\n[121 E-F]\n\nD. P. hfishra v. Kanwl Narain and A11r. [1971] l S.C.R. 9, distinguished-\n\n(9) The circumstance5 proved in the case are: (a) that D \\Vorked for the respondent; (b) that D hired the t\\.VO jeeps and used them for the respondent's election campaign; and (c) that he sometimes operated from the respondent's election office.\n\nBut these circumstances do not justify the inference that the respondent put D in charge of his transport arrangements. [122F-Hl\n\n(10) As regards the money spent by D it is not believable that he spent his O\\Vn money. But the only alternative inference is not that it \\Vas the res- . pondent's money that was sp, ent and that lhe respondent authorised D to H spnd it, especially when there is evidence to show that the respondent's electian campaign received financial assistance from other sources, such as the Jan Sangh Party. [123B-C]\n\n(11) A note bo6k put in evidence by the appellant seen1s to suggest that a. part of the money paid for the 2 jeeps was taken from the respondent. But. the note book was not kept in the regular course of business, it was not a reliable clocument and there \\Vas no independent evidence proving the correctness of the: entries therein. Therefore, it is not possible to rely on the entries in the note book and it must be left out of consideration.\n\n[120E-121C-122H-\n\n123A]\n\n(12) It may be difficult to get hold of evidence in an election dispute to prove such. a corrupt practice, but the Jaw requires proof beyond reasonable doubt.\n\n[123E-F]\n\n' -\n\n,.... ,\n\nOM PRABHA v. CHARAN os. (Beg, J.)\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1551 of 1973.\n\nFrom the judgment and order dated 31st August 1973 of the Punjab & Haryana High Court in Election Petition No. 42 of. 1972.\n\nL. M. Singhvi, A. Gupta, S. L. Yadava, S. K. Dhingra and\n\nS. Swamp, and J. B. Dadachanji, for the appellant.\n\nH. L. Sibal, S. S. Khanduja, Susnik Kumar Jain, Vishwanath K. V. and Kapil Sibbal, for respondent No. 1.\n\nThe Judgment of the Court was delivered by c BEG, J.-I would like to point out that the High Court, in the judgment under appeal, recorded the finding, after a very comprehensive and detailed discussion of the whole evidence \"that the two jeeps in question actually worked iu support of the respondent's election campaign right from February 18, 1972 to March 11, 1972 under the charge and direction of Duni Chand\".\n\nNevertheless, the D High Court finally held that, as the precise connection of Duni Chand with the contesting respondent was not satisfactorily established, the charge of corrupt practice against the respondent must fail.\n\nIt is the well established practice of this Court (see e.g. B. B. Karemore & Ors. v. Govind & Ors.)( 1 ) that it will not, without a better reason than merely that another inference, on evidence on record, is possi- E ble, disturb such findings even on a statutory first appeal which is not confined to questions of law.\n\nWe cannot forget that, if a charge at a corrupt practice, as an electoral offence, is held to have been established against a candidate, it may have grave repercussions on his reputation and political future.\n\nTherefore, prudence requires that we should apply the stricter standard of proof of a criminal charge in such a .case and not decide the case on a bare balance of probabilities.\n\nIt appears to me that, although there is, if a bare balance of G probabilitie.s could decide the case, sufficient circumstantial evidence to connect the expenditure incurred by Duni Chand with the respondent, who did not even produce any account books though the law requires him to maintain satisfactory accounts to support his re- 'turn of election expenses, yet, if we are to apply the rules of circumstntial. eyidence wih the strictness with which they are appli- H cable m cnmmal cases, 1t may be held here that the case against the contesting respondent is not proved beyond reasonable doubt despite all the circumstances appearing against him. There are other circumstances which suggest another possible inference.\n\nHence, we are left in doubt on the question whether he or the Jan Sangh party, from which he broke away after his election, had incurred these expenses through Duni Chand. I, therefore, though not without some hesitation, agree with the conclusion reached by my learned brethren that this appeal must be dismissed.\n\nI also agree that, in the circumstances of this case, the parties should bear their own costs.\n\n(l) A.T.R. S.C. 405.\n\nGUPTA, J.-This is an appeal under Section 116A of the Reprosentation of the People Act, 1951 (hereinafter referred to as \"the Act\") from an order passed by the Punjab and Haryana High Court at Chandigarfi-dismissing the election petition filed by the appellant calling in question the election of the first respondent to the Haryana State Legislature from the Kaithal Assembly Constituency in 1972.\n\nPoll was taken on March 11, 1972.\n\nThe first respondent who secured 26095 votes was elected defeating the nine other candidates who contested the election.\n\nAppellant Om Prabha Jain who polled 22673 votes secured the next position in the contest.\n\nIn her election petition the appellant hereinafter also referred to as the petitioner, alleged various corrupt practices against the returned candidate seeking his election to be declared void under sec. 100 of the Act and also prayed for an order under sec. 99 naming him guilty of corrupt practice so that he might be disqualified under sec. SA of the Act.\n\nIn this appeal the challenge is confined to the allegations c; f corrupt practice under sub-sec.(6) of sec. 123-\"ineurring or authorising of expenditure in contravention of Section 77\".\n\nSec. 77 as it stood when the election petition was presented was in these terms:\n\n\"77. Account of election expenses and n1axb11um thereof.-(1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result. thereof, both dates inclusive.\n\n(2) The account shall contain such particulars as may be prescribed.\n\n( 3) The total of the said expenditure shall not exceed such amount as may be prescribed.\"\n\nFor the State of Haryana the prescribed limit on election expenses was Rs. 9000.\n\nH During the pendency of the appeal in this Court an Ordinance, n:l!llely, the Representation of the People (Amendment!\n\nOrinancc, 1974 was promulgated amending sec. 77 of the Act by .msertmg two explanations to sub-sec. (!) thereof.\n\nThe explanations read as follows :-\n\n'Explanation 1.-N otwithstanding any judgment, order or decision of any court to the contrary, any cxl'end1ture incurred or authorized in connection with the electt0n of a candidate by a political party or by auy other association or body of persons or by any individual (other than the\n\n-candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this sub-section :\n\nl 11\n\nProvided that nothing contained in this Explanation shall affect-\n\n( a) any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State has been declared void or set aside before the commencement of the Representation of the People (Amendment) Ordinance, 1974;\n\n(b) any judgment, order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance if no appeal has been preferred to the Supreme Court against such judgment, order or decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement.\n\nExplanation 2.-For the purposes of Explanation 1, \"political party\" shall have the same meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time being in force.'.\n\nThe Representation of the People (Amendment) Ordinance, 1974 was subsequently repealed and replaced by the Representation of the\n\nPeople (Amendment) Act, 1974 (Act 58 of 1974) inserting the aforesaid explanations in sec. 77 of the Act. The appeal before us does not attract the proviso to Explanation 1 and sec. 77 with the explanations added will govern this case.\n\nThe particulars of the charge that the returned candidate incurred\n\nor authorized expenditure above the prescribed limit are set out in clauses (a) to (J) of paragraph 14 of the election petition. Dr. H Singhvi, learned counsel for the appellant, confined his submissions to the expenditure incurred in connection with the use of two jeeps bearing Nos. 6424 and 1116 mentioned along with several other vehicles in clause ( e) of paragraph 14.\n\nIt is alleged in that paragraph that though the first respondent showed in his return his total expenditure as Rs. 5844/24 p., his expenses exceeded in any case the prescribed limit of Rs. 9000/-. The contents' of paragraph 14 of the election petition are denied in paragraph 14 of the written statement of the first respondent wherein he has stated that he never used most of the vehicles mentioned in the election petition including the jeeps 6424 and 1116. -\n\nOf the Issues framed, only Issues Nos. 14, 15 and 16 are relevant for the purpose of this appeal.\n\nThese Issues are as follows:-\n\n\"(14) Whether respondent No. 1 incurred or authorised expenditure on the various items enumerated in subparagraph (a) to (1) of paragraph 14 of the election petition.\n\n( 15) If any of the items of expenditure referred to in the preceding issue is proved to have been incurred. by the returned candidate, does the addition ol' that extra amount to the amount of expenses shown by the returned candidate to have been incurred by him in the return of election expenses take the total amount spent by him above the statutory limit of Rs. 9,000/-?\n\n(16) If the preceding issue is proved, has the returned candidate not committed the corrupt practice defined in section 123 ( 6) read with section 77 of the Act ?\"\n\nBefore we turn to the evidence bearing on these issues it would be appropriate to state here certain facts in the background which must be kept in mind in considering the evidence.\n\nThe appellant contested the election as a candidate of the Indian National Congress.\n\nThe first respondent had filed several nomination papers, two of them as a candidate of the Bharti ya Jan Sangh and two as independent.\n\nHe had signed the pledge of the Jan Sangh, but ultimately he contested the election as an independent candidate.\n\nHe had been a member of the Municipal Committee of Kaithal on the Jan Sangh ticket and was elected its President in April, 1971 as a nominee of that party.\n\nSome time after the election in question in the present appeal was over, the first respondent was served with a charge-sheet by the Bhartiya Jan Singh, Haryana State, alleging that he had betrayed the organisation by failing to join the Jan Sangh Legislature Party which. it was said, he had promised to do as soon as the result of the election was declared; finally he was expelled from the Party.\n\nThese facts are not in disp?tc.\n\nThe first witness examined by the petitioner to prove that the two jeeps in question were hired for the first respondent is P.W. 3 Jaojit Singh, a taxi driver of-Delhi.\n\nHe proves the letter Ext. P.W. 3fl, said to have been given to him by Brij Mohan, a neighbour, who asked him to send four or five jeeps to respondent Charan Dass at Kaithal.\n\nExt. P.W. 3/1 is a letter dated February 20, 1972 addressed to Brij Moban by one Duni Chand Gupta.\n\nThe letter translated into English from the original Urdn reads as follows :-\n\n\"Kaithal.\n\n20-2-72.\n\nBabu Brij Mohan Ji.\n\nIt is requested that I had taken from you two Nos. jeeps on dated 18-2-1972 bearing No. 1116 and 6424 for the election of Shri Charan Dass, for which I had paid you the amount of Rupees two thousands in Advance.\n\nNow I require five Nos. jeeps more. lf you can manage then inform at once so that I may send the advance through somebody.\n\nInform at once, hire charges are no consideration, the work should be done.\n\nSd/- Duni Chand Gupta,\n\nKai th al.\n\nC / o Shri Charan Dass,\n\nElection Office\n\nKaithal.\"\n\nTwo things are to be noted in this Jetter, that Duni Chand claims that be had paid Rs. 2000/- in advance for the two jeeps bearing numbers 1116 and 6424, and that he gives his address, care of Charan Dass election office, Kaithal.\n\nThe evidence of P.W. 3 is that he could secure only two jeeps from a place called Abohar which he sent to Charan Dass.\n\nThe next witness who speaks about .these two jeeps is P. W. 5 Puran Chand. He is a shopkeeper in District Shri Ganga Nagar\n\nin Rajasthan. He claims that he was the owner of jeep numbered 6424 and his cousin Munshi Ram owned the other jeep, 1li6. His F evidence is that he and Munshi Ram left Shri Ganga Nagar on February 13, 1972 with the two jeeps reaching Delhi the next day where they contacted Brij Mohan, a commission agent, for getting their \"vehicles hired out\". On February 17, Duni Chand came to Brij Mohan seeking to hire two jeeps. Brij Mohan settled the terms of hire which were that Duni Ch::ind would pay Rs. 130/- per day G for each jeep from February 18 to March 11, 1972 besides Rs. 5/- per day to the driver of each jeep and also pay for the petrol.\n\nThe witness says that Munshi Ram and he were each paid Rs. 1000 in advance by Duni Chand.\n\nOn March 4, Duni Chand paid him Rs. 3500/- at Kaithal towards the hire of both the jeeps and got a receipt from him which is Ext. P.W. 5/1; the balance, Rs. 740/-, H was collected later by the drivers of the jeeps.\n\nP.W. 6 Surja 'Ram and P.W. 7 Madan Lal are the drivers of jeeps Nos. 1116 and 6424 respectively, P.W. 6 claims that respondent Charan Dass used to go about in his jeep and the respondent's own .car \"used to remain parked in those days\".\n\nThe witness states further tl1at the respondent never went in the jeep driven by Madan Lal.\n\nThe statement that the respondent's car was not used during the election days is not consistent with what appears from paragraph 14 (b) and (c) of the election petition where the petitioner states\n\nA that the respondent used his car in connection with election campaign but has not shown the expenses incurred on that car.\n\nP.W. 7 Madan Lal's evidence is that on arriving at Kaithal with the jeep the witness was deputed by Duni Chand to work at village Cheeka.\n\nThis witness claims that the first respondent travelled in his jeep on two occasions, first on the 18th of February and on another day, thus contradicting P.W. 6 who had said that the respondent never used the jeep driven by P.W. 7.\n\nFrom the evidence of P.W. 3, P.W. 5, P.W. 6 and P.W. 7 1t C would appear that Duni Chand hired the two jeeps in question to help the election campaign of the respondent.\n\nDuni Chand, also known as Duli Chand, was examined as a Court Witness.\n\nHis evidence is that he and six or seven other persons D had formed a party to work against the Congress candidates in the Kaithal and Pchowa constituencies.\n\nThis party, however, was not given a name nor did it hold any meeting or issue any poster.\n\nHe says that each member of this party contributed Rs. 1000/- to carry on the election propaganda.\n\nHe admits having written the letter Ext. P.W. 3/1, and that he had hired the two jeeps in question E. through Brij Mohan to work against the Congress candidates in the aforesaid two constituencies. According to him the members of this party went round in those jeeps to canvass support for respondent Charan Dass as they considered the respondent to be the best of the candidates.\n\nAsked about the reason why in the letter Ext. P.W. 3/1 he had . given his address as \"care of Charan Dass' election office, F Kaithal\", he says that this was done \"to facilitate Brij Mohan's man to find me for collecting the balance of the hire money ......... the man could have enquired the address of my shop from the election office of Charan Dass\".\n\nThe witness denies that he had given that address because he was \"incharge of the election work of the respondent relating to employment of motor vehicles''.\n\nThe witness adds G that he and his friends who worked for first respondent at the election did not maintain any record containing particulars of how the jeeps were employed by them during those days.\n\nIn answer to a question put to him in cross-examination regarding a note-book which figures prominently in this case, Duni Chand admits that the note-book, Ext. P.W. 8/5, is partly in his handwriting.\n\nThis note-book which we will consider in due course was also written partly by Raghbir Chand who like Duni Chand was examined as a Court Witness.\n\nHe claims to be one of the group of seven or eight persons spoken of by Duni Chand who were helping the first respondent.\n\nThe petitioner hersell deposing as P.W. 30 has narrated how she came to know of the said two jeeps being employed by respondent Charan Dass .. According to her fifteen to twenty jeeps were used by him for his election work.\n\nShe noted the numbers of these\n\n' ,\n\nvehicles in a diary; this record is based on her personal observation and also on \\nformation received from her workers.\n\nIn answer to a question put by the Court she read out tbe numbers of the jeeps noted in her diary in the following order: \"5948, 6055, 6009, 2574, 1710, 9997, 6424, 1116, 6675, HRJ-5324, HIM-4147, 6170 and 8363.\"\n\nThe note-book, Ext. P.W. 8/5, seems to be the most important documentary evidence produced on behalf of the petitioner to prove that the two jeeps in question had been employed by respondent Charan Dass.\n\nOn some pages of this note-book are recorded in an extremely haphazard manner the numbers of several vehicles with C certain dates and figures seeming to indicate when some of the vehicles first reported for duty and how they were deployed.\n\nThe note-book also mentions different sums of money stating or hinting at the sources wherefrom these amounts were collected and includes certain entries suggesting payments made for the use of these vehicles.\n\nThe two jeeps, 6424 and 1116 are among the vehicles mentioned in the note- D book.\n\nThe petitioner states in her evidence that P.W. 9 Mohan Bahadur brought the note-book to her at her residence in Kaithal in the last week of September, 1972.\n\nP.W. 9 Mohan Bahadur, whese eeposition was recorded on October 5, 1972, states that the note-llook was given to him \"last week\" by Punnu Ram, Joint Secretary •f the Kaithal Jan Sangh. According to the witness, Punnu Ram I. told him that Jan Sangh had expelled Charan Dass from the Party\n\nanci that the note-book would be of help to the petitioner in her election petition. The witness adds that Punnu Ram knew that the witness was a supporter of the petitioner.\n\nIn this note-book t_he name of Anil Kumar Gupta, a son of the first respondent, appears to be written at two places.\n\nAdmittedly, Anil Kumar was a B.A. student in the R. K. S. D. College, Kaithal, and one of his subjects was Civics.\n\nPages 3 to 8 of the note-book contain certain notes on Civics.\n\nAccording to Mohan Bahadur and the petitioner there were three loose sheets of paper inside the notebook.\n\nThese loose sheets of paper which have also been produced with the note-book are: (!) a Hindi manuscript containing instructions for the polling agents (Ext. C.W. 2/1), (2) bill of a loudspeaker dealer in the name of Charan Dass for Rs. 101/50p. (Ext.\n\nP.W. 24/1), and (3) a receipt in Hindi dated March 6, 1972 for\n\nRB. 41/50p. for hire of loudspeakers, signed by one Shadi Lal Shad, a worker of the Jan Sangh Party.\n\nAs stated already, it is difficult to find any order or method in the entries recorded in: this note book though the fact that it belonged to the respondent's son might appear to lend some authenticity to the document. Respondent Charan Dass (R.W.15) and his election agent Gian Chand (R.W.14) both however deny that any such notebook was maintained by them or that they had asked Duni Chand or Raghbir Chand to make the entries therein. It is also not clear, how the notebook found its way to the petitioner. Punnu Ram,. Joint Secretary of the Kaithal Unit of the Jan Sangh Party, who is said to_\n\nA have handed over the note-book to Mohan Bahadur was examined\n\nby the respondent (R.W.13).\n\nPunnu Ram denies having made over any note-book to Mohan Bahadur whom he says he did nor know.\n\nHis evidence is that he saw the note-book for the first time in Court.\n\nPunnu Ram admits that he worked for the first respondent at the B election on behalf of his Party. The witness proves a document (Ext.R.W.13/1) containing a statement signed by Shadi Lal Shad that he had \"got prepared\" 4 70 small flags and 1000 stencils for the total cost of Rs. 38.SOp. This document contai1is the signature of Punnu Ram who appears to have verified the correctness of it< C contents. In his deposition Punnu Ram explains that the Jan Sangh\n\n\"had got the flags and the election symbol of respondent No. 1 prepared as the party was supporting respondent No. 1 '\". The witness adds that the Jan Sangh spent a total amount of Rs. 400/- or Rs. 500/- on the election of the first respondent. This part of Punnu Ram's evidence is relevant to the other aspect oE the case, namely, who D really paid for the two jeeps if it was found that they had been 'employed for the respondent's election campaign.\n\nRaghbir Chand who claims to have made some of the entries in the note-book was examined as a Court Witness. His evidence is that Janardan Singh who was his friend and a member of the Jan E Sangh had asked him to make certain entries in the note-book. He says that the first column of page 260 a111l the whole of page 261 of the notebook were in his handwriting. The two jeeps, 1116 and 6424, are mentioned in the first column of page 260 with the word 'Delhi' in Urdu written against them. According to Raghbir Chand these pages\n\nF were blank when the note-book was brought to him by Janardan Singh.\n\nRaghbir Chand says that he did nor know why Janardan Singh wanted him to write in the note-hook and that he obliged his friend without asking any questions. The writings on pages 260 and 261 appear to be in opposite directions, which is one example of the_ lack of order and method in maintaining the note-book. Raghbir Chands explana- G lion is that after be had finished what he was asked to write on page\n\n260 and closed the note-hook, J anardan Singh thought of getting some more entries made by him and opened the note-book at page 261 upside down, and Raghbir Chand copied on the page as he found it whatever Janardan Singh dictated to him.\n\nH Janardan Singh who claims to be a worker of the Jan Sangh was also examined as a Court witness. According to him Pawan Kumar, Joint Secretary of the Jan Sangh at Panipat, came to see him towards the end of March, 1972 and left with him the note-book (Ext. PW. 8/5) and a Parcha containing certain figures in English and wanted him to get these figures which were all numerals, copied into the note-book. The witness did not ask him why, and as a worker of the Jan Sangh proceeded to \"obey his orders\". He says that he an<l Ragbbir Chand had \"blind faith\" in each other, and at his request .\n\nRaghbir Chand copied the figures from the Parcha 011 pages 260 and 261 of the note-book.\n\nThese pages however contain certain names of places and persons and also other words; according to Raghbir\n\nI',-.\n\n,:~.\n\n- '\n\n..... - - \\ ..\n\nChand these also were in his handwriting, hut J anardan Singh maintains that the Parcha from which Raghbir Chand had copied did not contain any such names or words. Janardan Singh's evidence is that later Pawan Kumar collected the note-book from him.\n\nAt the co<1clusion of Janardan Singh's deposition, the learnoo Judge appears to have recorded a note of his impression that \"throughout his statement, this witness has been displaying nervousness, and prevarificating and avoiding to give straightforward answers to the questions put to him\".\n\nDuni Chand's version is that what he had written in the notebook was at the instance of Rattan Lal, President of Ward No. 8, Kaithal Jan Sangh Party. Dtmi Chand says that Rattan Lal expressed displeasure at the respondent failing to honour his promise to join the Jan Sangh legislature party, if elected, and enquired of Duni Chand if he could produce any evidence which would go, against the respondent in the election dispute, then pending in the High Court.\n\nDuni Chand made over to Rattan Lal the receipt, Ext. P.W.5/1, given by Puran Chand for Rs. 3500/- paid towards the hire of the jeeps 1116 and 6424. Five or six days thereafter, Rattan Lal again came to sec Duni Chand with a diarv and a note-book. Dtmi Chand's evidence is that he copied on the clifiercnt pages of the note-book whatever Rattan Lal read out from the diarv. This was about a month after the election. Duni Chanel says that, when the note-book was brought to him, it contained all the other writings that are now there.\n\nDuni Chanel's evidence is that he did not question Rattan Lal in what way the note-book would be used against the respondent but wrote to his dictation on such pages of the note-book and in such order as he was told. According to Duni Chand, Rattan Lal took away the diary and the note-book after the writing was done.\n\nCertain entries in the note-book apparently corroborate the oral evidence as to some payments made towards the hire of the two jeeps but it does not record ail the payments claimed to have been G made. For instance, P.W.6 Surja Ram, driver of jeep No. 1116, stated that he had signed in a note book on March 12, in acknowledgement of the receipt of Rs. 740/-, being the balance of the amount dne on account of the two jeeps.\n\nThere is however nothing in the note-book to support this statement. Assuming Surja Ram's evidence to he true, one would have expected to find his signature in the note- H book .\n\nPawan Kumar, Provincial Secretary, Haryana Jan Sangh, was the first witness to be examined on behalf of the petitioner. He disclaims all knowledge of the Parcha or the note-book which, according to him, he saw for the first time in court. His evidence adds to the r.1ystery surrounding the note-book. The witness states that the first respondent was in fact a Jan Sangh candidate but was allowed to contest as an independent as a matter of election strategy. He adds that he went to Kaithal on March 14, 1972 and requestee the respondent to declare that he would join the Jan Sangh legislature party.\n\nA The respondent is said to have replied that be would think over the matter and then inform the witness. The respondent, it is alleged, was thereafter asked on the telephone on March 16, to attend the W orldng Committee meeting of the State Jan Sangh at Kamal to be held the next day. Though the respondent's reply on the teJepbone B was that he would attend the meeting, he did not ultimately do so.\n\nAbout two days after the meeting, the witness went again to the' respondent for an answer but still the respondent did not give any definite reply. The witness also states that 4 or 5 days after the result of the election was declared, the respondent came to Jan Sangh olficc to have the return of election expenses prepared in consulta- C tion with the witness and the President of the State Jan Sangh Party.\n\nThe witness proves the notice. Ex. P.W. I /3, issued on March 25, 1972 asking the first respondent to show cause within one week of the receipt of the notice why he should not be expelled from the party because of his failure to join the Jan Sangh legislature party in breach of his previous assurance.\n\nPa\\van Kumar goes on to say that in the course of his visits to0 Kaithal to supervise the election campaign'. in support of the respoade•t,. he used to find Duni Chand sitting in the respondent's election ollice and alloting duties to the different vehicles and also making pay111e•l6 E in that connection. It is also the evidence of this witness that though\n\nthe first respondent was really a Jan Sangh candidate, the Party did not incur any expenditure on his elect.ion. According to him even the expenses of the public meeting arranged by Jan Sangh in support of the respondent at Kaithal on March 4, 1972 were met by tile respondent himself.\n\nF The evidence of Pawan Kumar does not seem to be altogether consistent and some of his statements also appear to contradict what certain other witnesses have said. Pawan Kumar has stated that 4 or 5 days after the result of the election was declared he met the G respondent when the latter came to the Jan Sangh office to have his return of election expenses prepared. The result of election was declared on March 13, 1972. On March 14, the witness claims to have seen the respondent at Kaithal to request him to declare that he would join the Jan Sangh legislature party. On March 16, he requested the respondent on telephone to attend the meeting of the Party to be H held the next day. On March 17, the meeting was held but the respondent did not attend. On March 19, the witness again went to Kaithal to have a discussion with the respondent and on March 25, the show-cause notice was issued. From the above list of dates which appear from Pawan Kumar's own evidence it is diificult to reconcile his other statement that about 4 or 5 day after the respondent 'l'{as declared elected, the respondent came to the Jan Sangh office to have the return of election expenses prepared in consultation with the witness and the President of the Jan Singh Party. Pa wan Kumar had also stated that there was no telephone in tbe olfiee of the Jan Sangh Party at Kaithal. This is contradicted by P.W.18 B. L. Khanija, Accounts Officer, Telephones, South Division, Ambala. His evidence\n\n' -\n\n• '\n\n' I -\n\n. .\n\nbased on his office record is that the Secretary, Bhartiya Jan Sangh, Kaithal was the subscriber of the Kaithal Telephone No. 497 from Fcbru~ 16, 1972 to March 15, 1972. This was, P.W.18 added, a casual connection and was installed in the house of Rattan Lal.\n\nP. W .18 further stated that at the time of ins.tallation of the telephpne Rs. 180 were charged as advance rent, Rs. 30 as installauon charges and Rs. 1000 as adjustable security, and that after adjusting the outstanding bills against the security .deposit of Rs. 1000, the balance was refunded to the subscriber. The total expenses incurred by the subscriber of this telephone came to Rs. 385. The original application dated February 4, 1972 for installation of this casual telephone cortnection was also produced in Court, an English translation of (Ext.P.W.18/3) reads as follows:\n\nTo,\n\n\"Bhartiya Jan Sangh, Kaithal Manda!.\n\nThe S.D.O .\n\nTelephones, Karna!.\n\nKaitha], dated the 4th February, 1972.\n\nSubject :-New connection for the office of Bhartiya Jan Sangh.\n\nIt is submitted that a telephone connection is required for the office of Bhartiya Jan Sangh at Kaithal for one and half month.\n\nKindly get the same installed.\n\nYours faithfully, Sd/- Amar Nath, M.C.\n\nBhartiya Jan Sangh,\n\nKaithll\"\n\nPa wan Kumar's assertion that Jan Sangh did not spend any money on the respondent's election is belied not only by R.W .13 Punnu Ram but also by another witness who deposed for the petitioner. It is P.W. 24 Inderjit. He is an employee of a shop at Kaithal that lends loudspeakers on hire. P.W. 24 states that one Raj Kumar, whom he described as a supporter of the Jan Sangh, came to his shop to hire loud, speakers on March 4, 1972 and he paid charges a few days thereafter.\n\nThis witness proves the receipt, Ext. P.W.24/1, for Rs. 101/50p. given by him. The receipt appears to have been made out in the name of the respondent, Charan Dass. The witness states that though the receipt was in the name of Charan Dass he never came tb the shop for the loudspeakers and the hiring charge was paid by Raj Kumar. P.W. 24 adds that he had written the nam'l. of Charan Dass . on the receipt at the instance of Raj Kumar.\n\nThe inconsistent statements of Pawan Kumar and the contradictions between his evidence and that of P.W.24 Inderjit who also was a witness for the petitioner, to say nothing about the evidence of\n\n10 SC/75-9\n\nA Punnu Ram, though he too was a member of the Jan Sangh, suggests\n\nthat either Pawan Kumar had no knowledge of at least some of the , facts he was talking about or that some of his statements were deliberately false.\n\nOn the evidence discussed above the findings recorded by the B High Court may be s_umrnarised as follows :-\n\n1. Duni Chand went to Delhi on or about February 17, 1972 and hired the two jeeps in question at the rate of Rs. 130 per day for each jeep with effect from February 18, 1972. Duni Chand had C paid Brij Mohan Rs. 2000 towatxls the hire of the two jeeps and a further sum of Rs. 3500 to Puran Chand {P.W. 5) on March 4, >\n\n1972 at Kaithal. Altogether Duni Chand spent Rs. 6240 for the two jeeps. Both the jeeps were used in the respondent's election campaign from February 18 to March 11, 1972 under the charge and direction of Duni Chand. •\n\n2. The note-book, Ext. P.W.8/5, belonged to the respondent's son Anil Kumar Gupta and the notes on Civics that this book: contains were in his handwriting. The other entries in the note-book relating to matters cooceruing the election of the respondent were made partly by Duni Chand and partly by Raghbir Chand. The note-oook E i~ not a do.; mnent maintained in the regular course of business and contains certain haphazard entries which cannot be used for foisting liability on any one without definite and clear proof of the genuineness and correctness of these entries. The witnesses who proved some of the entri.es in the note-book, Duni Chand and Raghbir Chand, have F both denied that the entries are genuine. However, their evidence that the ntries were fabricated abont a month after the election and in the circmnstances stated by them is not believable. The fact that the\n\nevidence 'of these two witnesses was false in this regard does not necessarily prove the correctness or genuineness of these entries.\n\nAnother circumstance which makes the note-book suspect is the fact G that the numbers of the various jeeps mentioned in the note-book are recorded therein in the same sequence in which they appear in the petitioner's diary. She claims to have noted in her diary the nmnbers of the jeeps working for the respondent several months before the note-book was made available to her. This is difficult to explain away\n\nas coincidental.\n\nH Having found that the two jeeps had been hired b~ Duni Chand to be used in the respondent's election campaign, and were in fact so used, the question that the High Court set for itself to answer was, whether on these findings it could. be said that the first. reSpondent\n\nincurred or authorised the expencliture of Rs. 6240 spent on account of these two jeeps.\n\nThere was some dispnte before us as to whether the allegation of authorisation could arise on the issue as framed.\n\nIt was contended on behalf of the respondent that reading issue No. 14, which is the relevant issue, carefully in the light of the statements made in the various sub-paragraphs of paragraph 14 of the election petition, it would appear that it raised only the question whether the\n\nrespondent himself' incurred the expenditure.\n\nHowever, it seems to A us that before the High Court the parties proceeded on the footing that the issue covered both the allegations and the scope of the enquiry cannot be limited at this stage.\n\n'The High Court answered the question in the negative on the following reasons. All the witnesses deposing for the pettioner said that the payments in respect of the jeeps were made by Duni Chand.\n\nOf course there are entries in the note-book, Ext. P.W. 8/5, which suggest that part of the expenditure incurred on account of the two jeeps was paid by the respondent's )>rother Arjan Das, and also that some amount was taken from the respondent himself. But the High Court found that the note-book which does not appear to have been kept in the regular course of business was not a reliable document in the absence of independent evidence proving the correctness of the entries therein.\n\nThe High Court was further of the view that from\n\nthe fact that the respondent used these jeeps once or twice, it did not necessarily follow that he paid for their hire, it being well-known that candidates: at an election very often nse their supporters' vehicles.\n\nThere is no evidence of the respondent incurring or any direct evidence of his authorising the expenditure incurred for the jeeps.\n\nThe respondent did .not produce his account of election expenses, his case being that \\he paperscontaining the accounts were destroyed by him after the return of election expenses was prepared. It was argued on behalf of the petitioner, relying on the case of D. P. Mishra v. Kamal Nnrain & Aizr.,( 1) that from the aforesaid fact an adverse_inferenee should be drawn against the respondent and it must be held that the expenditure was really incurred by the respondent himself.\n\nThe High Court pointed out that in D. P. Mishra's case the worker of the returned candidate who was supposed to have incurred the expenditure in question in that case was not examined, and this circumstance considered along with the fact that the returned candidate had not chosen to produce his accounts proved the case against him. In the im:tant case, however, Duni Chand who made the payments was examined but he denied that the respondent authorised him to make these payments.\n\nThis part of Duni Chand's evidence was accepted by the High Court though he w, as not considered a straightforward witness and a substantial part of his evidence was disbelieved.\n\nThe decision in D. P. Mishra's case (snpra) indeed turns on facts somewhat different from the facts of this case.\n\nThe High Court has found that there is also no reliable circumstantial evidence in this case to -H connect the respondent with th' expenditure incurred by Duni Oland.\n\nIt now seems settled that the findings of fact recorded by the High C-0urt should not be disturbed in ail. appeal under section 116-A of the Act unless there was some serious error in these findings. It appears from the record of this case that the learned Judge of the High Court recorded his impression. about the demeanour of the witnesses whenever he thought necessary.\n\nThe findings based solely on the demeanour of 1'.'e witnesses. cannot be reversed in appeal, but\n\n(!) [1971] 1.S.C.R. 9.\n\nA the conclusions of fact reached upon a consideration of the probabilities can be tested to see if they contain any serious error.\n\nWe find no reason to disturb any of the findings. of fact recorded by the High .\n\nCourt summarized above.\n\nThese findings appear to be justified on the evidence which we have discussed.\n\nWe agree with the High C:>urt's views on the credibility of the witnesses.\n\nWe also agree B that the note-hook is not a reliable document in the absence of independent evidence to prove the genuineness of the entries therein.\n\nWhat we h11ve to decide is, whether the High Court was right in its conclusion from)hese findings that the first respondent did not autltorise Duni Chand to spend any amount on the hiring of the two jeeps c in question.\n\nThe allegation that Duni Chand was in-charge of the transport arrangements for the respondent if true, would be a circumstance which, taken with other circumstances, might indicate that it was the respondent's money that Duni Chand was authorised to spend: If the note-book is left out of consideration, as it must he, the other evidence on record does not appear to us to be sufficient D to prove this allegation.\n\nIt is well established that a charge of corrupt practice is quasicriminal in nature and must be proved beyond reasonable doubt.\n\nThere is no direct evidence that the respondent himself paid for the two jeeps.\n\nThe question is whether it is possible to infer from the circumstances discussed above that Duni Chand was authorised by the respondent to spent the said amount of Rs. 6240 for these vehicles.\n\nIn the case of Samant N. Balkrishna & Anr. v. George Fernandez & Ors.(') this Court held that the circumstantial evidence F led to prove corrupt practice must exclude every hypothesis except that of guilt. What are the circumstances here from: which one could infer that Duni Chand was authorised by the. respondent ? It is alleged that Duni Chand was in-charge of the transport arrangement for the respondent's election.\n\nThat Duni Chand worked for the respondent at the election is proved. It has also been found that he G hired the two jeeps and used them for the respondent's election campaign. It may also be said that the letter, Ext. P. W. 3 /l, suggests that Duni Chand used to operate at times from the respondent's election office. But from these circumstances onlv, would the inference be justified that the respondent put Duni Chand incharf!e of his transport arrangements ? The High Court has taken the view, which we H endorse, that at an election people work for a candidate prompted by various motives even if they are not employd by the candidate to work for him.\n\nThe story that Duni Chand along with six or seven other persons formed a group to support the respondent has been disbelieved, and rightly. But, even then, it is difficult to say with certainly that it was the respondent who engaged Duni Chand to be incharge of the vehicles used in his election campaign.\n\nThere is no direct evidence that the respondent put Duni Chand in funds and one hardly expects to find such evidenc0 in a case like this.\n\nWe have found that the note-book is not a reliable document. It is therefore\n\n(!) [1969] 3 S.C. R. 603 at 637. .\n\nA not possible to rely on the entries in the note-book which seem to suggest that a part of the money paid for the two jeeps was taken from the respondent.\n\nThe High Court did not believe that the notebook was entirely fabricated but felt it was unwise to rely upon it.\n\nThe mystery of the note-book has not been solved, but the unsolved mystery cannot be used as proof to bring home the charge. against the respondent.\n\nWhose money it was then that Duni Chand spent ?\n\nB It is not believable that Duni Chand spent his money, but the only alternative is not that it was the respondent's money which he authorised Duni Chand to spend. It has been found that the Jan Sangh incurred some expenditure on the respondent's election campaign in spite of the denial of Pawan Kumar that thei Party did not spend anything. . We do not find .it possible to accept the statement of Punnu Ram, Joint Secretary of the Kaithal Unit o! the Jan Sangh Party, that c\n\nthe total amount spent by the Party on the respondent's election was between Rs. 400 and Rs. 500. Apparently, the High Court also did not rely on this part of Punnu Ram's evidence. It is not necessary however to investigate what amount exactly came from which source. It is clear . that the respondent's election campaign received financial assistance from other sources, which makes it difficult to reach the conclusion that none but the first respondent himself spent the amount in question. We do not know what our conclusion would have been had the case fell to be decided on the probabilities only, but is not possible to say that it has been proved beyond reasonable doubt that Duni Chand paid fo~ the jeeps from 'the money he received £rom the respondent and the respondent authorised the expenditure. Counsel for the appellant said that it would be hardly possible ever to get hold of snch evidence in an election dispute.\n\nThat may be so, but this is how the law stands. We agree with the High Court <hat the allegation of corrupt practice against the respondent has not been proved beyond reasonable doubt.\n\nThe appeal is dismissed; considering all the circumstances of the case, we make no order as to costs.\n\nV.P.S.\n\nAppeal dismissed.\n\n\"\"\" -", "total_entities": 28, "entities": [{"text": "OM PRABHA JAIN", "label": "PETITIONER", "start_char": 5, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "OM PRABHA JAIN", "offset_not_found": false}}, {"text": "CHARAN DAS & ANR", "label": "RESPONDENT", "start_char": 21, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "CHARAN DAS & ANR", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 56, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 67, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 89, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 108, "end_char": 140, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ss. 77, 116", "label": "PROVISION", "start_char": 156, "end_char": 167, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "Section 77", "label": "PROVISION", "start_char": 322, "end_char": 332, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "People Act, 1951", "label": "STATUTE", "start_char": 364, "end_char": 380, "source": "regex", "metadata": {}}, {"text": "s. 77", "label": "PROVISION", "start_char": 897, "end_char": 902, "source": "regex", "metadata": {"linked_statute_text": "the People Act, 1951", "statute": "the People Act, 1951"}}, {"text": "s. 77", "label": "PROVISION", "start_char": 1373, "end_char": 1378, "source": "regex", "metadata": {"linked_statute_text": "the People Act, 1951", "statute": "the People Act, 1951"}}, {"text": "s. 77", "label": "PROVISION", "start_char": 3398, "end_char": 3403, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 116", "label": "PROVISION", "start_char": 3501, "end_char": 3507, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 116A", "label": "PROVISION", "start_char": 9960, "end_char": 9972, "source": "regex", "metadata": {"statute": null}}, {"text": "Reprosentation of the People Act, 1951", "label": "STATUTE", "start_char": 9980, "end_char": 10018, "source": "regex", "metadata": {}}, {"text": "sec. 100", "label": "PROVISION", "start_char": 10773, "end_char": 10781, "source": "regex", "metadata": {"linked_statute_text": "the Reprosentation of the People Act, 1951", "statute": "the Reprosentation of the People Act, 1951"}}, {"text": "sec. 99", "label": "PROVISION", "start_char": 10828, "end_char": 10835, "source": "regex", "metadata": {"linked_statute_text": "the Reprosentation of the People Act, 1951", "statute": "the Reprosentation of the People Act, 1951"}}, {"text": "sec. 123", "label": "PROVISION", "start_char": 11037, "end_char": 11045, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 77", "label": "PROVISION", "start_char": 11107, "end_char": 11117, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 77", "label": "PROVISION", "start_char": 11121, "end_char": 11128, "source": "regex", "metadata": {"statute": null}}, {"text": "During the pendency of the appeal in this Court an Ordinance", "label": "STATUTE", "start_char": 11882, "end_char": 11942, "source": "regex", "metadata": {}}, {"text": "sec. 77", "label": "PROVISION", "start_char": 12041, "end_char": 12048, "source": "regex", "metadata": {"linked_statute_text": "During the pendency of the appeal in this Court an Ordinance", "statute": "During the pendency of the appeal in this Court an Ordinance"}}, {"text": "sec. 77", "label": "PROVISION", "start_char": 13875, "end_char": 13882, "source": "regex", "metadata": {"linked_statute_text": "High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance", "statute": "High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance"}}, {"text": "sec. 77", "label": "PROVISION", "start_char": 13966, "end_char": 13973, "source": "regex", "metadata": {"linked_statute_text": "High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance", "statute": "High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance"}}, {"text": "section 123", "label": "PROVISION", "start_char": 15719, "end_char": 15730, "source": "regex", "metadata": {"statute": null}}, {"text": "section 77", "label": "PROVISION", "start_char": 15746, "end_char": 15756, "source": "regex", "metadata": {"statute": null}}, {"text": "section 116", "label": "PROVISION", "start_char": 43874, "end_char": 43885, "source": "regex", "metadata": {"statute": null}}, {"text": "[1969] 3 S.C. R. 603", "label": "CASE_CITATION", "start_char": 47449, "end_char": 47469, "source": "regex", "metadata": {}}]}
{"document_id": "1975_1_124_128_EN", "year": 1975, "text": "MOHD. DHANA ALI KHAN\n\nSTATE OF WEST BENGAL\n\nApril, 11, 1975\n\n[N. L. UNTWAL!A AND s. MURTAZA FAzAL Au, JJ.]\n\nMaintenance of Internal Security Act, 1971-Whether a single incident of their in a running train at night had nexus with disturbance of public orders. 14-:..-Jflhether confers a disc1-'etionary power on the Central (; overnn1ent to revoke or n?odify an order-Detaid; ng authority had other tnaterial before hini at the tilne Of passing the order-Whether vitiates the order of detention.\n\nThe petitioner was detained under the provisions of the Maintenance o{ Internal Security Act, 1971. In a petition under Att. 32 of the Constitution the petitioner contended that a single incid.nt of theft committed in a train had no nexus with the disturbance of public order, (2) that under S. 14 of the Act it was open to the Central Government to revoke or modify the order of detcution and, therefore, there must be some material to shov.• that the Government of India applied its mind under S. 14 of the Act and (3) that the District\n\nl\\.fagistrate was not only influenced by the grounds served on the petitioner but also by other materials on the record and as: such the order of detention \\Vas\n\nvitiated.\n\nAllowing the petition,\n\nHELD ; ( 1) The ground mentioned in the order of detention did ha Ye a nexus with the disturbance of public order. It is true that the ground contained a single incident of theft of valuable property from some passengers travelling in a running train and may amount to robbery. But that did not by itself take the case out of the purview of the provisions of the Maintenance of Internal Security Act. The allegation was tliat the petitioner had snatched away a wTist watch and a gold chain after putting the passengers of the compartn1ent to fear of death. Secondly, the theft had taken place at night in a running train in a third class compartment. The effect of it would be to deter peaceful citizens from travelling in trains at night.\n\nThis would undoubtedly disturb th'! even tempo of the life of the community. [126D to F]\n\n(2) There is no material on record to show that the Central Government did not apply its mind at all under S. 14 of the Act. Section 14 nlercly confers\n\na discretion on the Central Gove'fnment to revoke or modify an order of detention made by the State Government. It does not confer any right or privilege on the detenu. It is for the Central Government to revoke' or modify after the report was submitted to it. The mere fact that the Central Government did not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Governn1ent failed to apply its nlind. It cannot, therefore, b'! said that as the Central Government did not apply its mind under S. 14 of the Act, lhis \\vould invalidate the order of detention.\n\n[126G-H & 127A]\n\n(3) The order of detention suffers from. a veTy serious infirmity \\vhich goes to the root of the matter. The District Magistra!e was influenced not only by the ground which was served on the petitioner but alsO by other materials on the record. The history sheet of the detenu which was placed before the District Magistrate had been produced and it could be seen from it that there were four incidents, many -of which related to thefts in running 1rains. It is true that in another place in his affidavit the District Magistrate had stated that he was satisfied only on the_ basis of the incident mentioned in the gro!Jnd served .on the petitioner. But this was contradictory to what he had stated tn the op_en1ng\n\nparagrfiph of the counter-affidavit.\n\nThe District Magistrate, before passing the order of.detention, had other materials also before him. It cannot, therefore, be\n\n- '\n\nsaid to \\\\-'hat extent the District Magistrate \\Vas infh.i.enced by the other mate- A rials and not by the material which is mentioned in the ground of detention.\n\n[127E-.GJ\n\nK!wdiram Das v. State of West Bengal, AJ.R. 1975 S. C. 550, referred to.\n\nORIGINAL JURISDICTION : Writ Petition No. 17 of 1975.\n\nPetition' Under Article 32 of the Constitution of India.\n\nR. K. Jain-for the petitioner.\n\nSukumar Ghosh and G. S. Chatterjee, for the respondcni.\n\nThe Judgment of the Court was delivered by-\n\nFAZAL ALI, J .-The petitioner assails the order of detention .passed against him on August 23, 1973 by the Distmt Magistrate, 24 Parganas. A report was sent ily the District Magistrate to the Government on August 27, 1973 a.id the detention was approved by the Government on 30th Angust, 1973. On September 10, 1973 the detenu made a representation to the Government which was rejected on September 12, 1973. 'Thereafter the matter was referred to the Advisory Board and after obtaining its opinion the order of detention was confirmed by the Government on November 14, 1973. We might a!So\n\nstate that a report to the Cen:ral Government was al5o made immediately after the order of detention was passed.\n\nMr. R. K. Jain appearing for the petitioner as amicus curiae has been of much assistance to us and has advanced five contentions before\n\nus. In the first place he submitted that there was sufficient defav on the part of the District Magistrate in submitting his report to the Government and the explanation. given by him is not convincing. In the counter affidavit, however, the District Magistrate has explained that he had to pass almost eight orders of detention on the 23rd August and all of them had to be typed out and as 26th August which was a Sunday had intervened, it was not possible for him to send the report to the Government earlier. In the circumstances, we arc satisfied that the explanation given by the District Magistrate in his affidavit is convincing and satisfactory. In Writ Petition No. 23 of 1975 (Gopal Manda! v. State of West Bengal decided on 9th April, 1975) an identical explanation was given by tfie District Magistrate which was upheld by this, Court. For this reason, the first contention raised by learned counsel is over-ruled.\n\nIt was next argued that the order of the Government rejecting the representation of the petitioner is not a speaking order and therefore the detention is illegal. This matter appears to be concluded by a decision of this Court in John Martin v. State of West Bengal(') following Hardan Shah's case where a a similar argument put forward by this Court was rejected outright. This .contention of the learned counsel does not therefore survive. '\n\nIt was next contended that the ground of detention, served on him amounted to a single incident , a, nd had no causal connection with the\n\n(l) Judgement in W.P. No, 467/74 dt. 21-i-1975\n\nSUPRE¥E COURT REPORTS\n\n[1975] SUPP •. S.C.R.\n\nA disturbance of the public order. The , ground served on the petition was as follows :\n\n\"That on 3-8-1973 between 21-10 and 21-20 hrs. you and your associates being armed with daggers boarded a 3rd class compartment ot SL 257 Up train of E. Rly. Sealdah Division at Gocharan R. S. and putting the passengers of the compartment to fear of death snatched away a wrist watch and a gold necklace from one Nirmal Chatterjee and his wife in between Gocharan and Surajpur R. Ss. you then decamped with booty from the running train at Suryapur R. S.\n\nYour action caused confusion, panic and disturbed public order there then.\n\nYou have thus acted in a manner prejudicial to the mainte- '\n\nnance of public order.\"\n\n' I\n\nD From a perusal of this we are unable to accept the contention of the petitioner that this ground has no nexus with the disturbance of public order. It is true that the ground contains a single incident of theft of valuable property from some passengers travelling in a running train and may amount to robbery. But that does not by itself take the case\n\n, E out of the purview of the provisions of the Maintenance of Internal\n\nSecurity Act. There are two pertinent facts which emerge from the grounds which must be noted. In the first place the allegation is that the petitioner had snatched away a wrist watch and a gold chain after putting the passengers of the compartment to fear of death. Secondly, the theft had taken place at night in a running train in a third class •F compartment and the effect of it would be to deter peaceful citizens from travelling in trains at night and this would undoubtedly disturb the even tempo of the life of the community. For tbese reasons we are satisfied that the ground mentioned in the order did have a nexm with the disturbance of public order.\n\nG The fourth contention put forward was that under s.14 of me Maintenance of Internal Security Act it was open to the Central Government to revoke or modify the order of detention after receiving a repon from the State Govermnent and therefore there must be some material to show that the Government of India applied its mind under 'section 14. In the first place s.14 merely confers a discretion on the H Central Government to revoke or modify an order of detention made by the State Govermnent. It does not confer any right or privilege on the detenu. It is for the Central Govermnent to revoke or modify after tbe report is submitted to it. The mere fact that the Central Government does not choose to revoke or mooify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to apply its mind. So far as the State Govermnent is concerned. its duty comes to an end after' it has sent a repon regarding the detention order to the Central Government.\n\nIn these circumstances, it cannot be said by any stretch of imagination that as Central Government did not apply its mind under section 14 of the Act, this would invalidate the order f-detention. There is no\n\n! \\\n\nmaterial before us to show that the Central Government did not apply A its mind at all under section 14 of the Act. The argument on this score 't is, therefore, n; jected.\n\nLastly, it was contended that it would appear from the affidavit filed by the District Magistrate that while detaining the petitioner the B District Magistrate was not only influenced by the ground served on the petitioner but also by other materials on the record. In paragraph 5 of the counter affidavit the District Magistrate stated as follows:-\n\n1 >Uy that l matle the detention orde7 after being bou~ fide satisfied from the materials on record (relating to the c detention of the detenu) that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order it is neessary to detain him under the provisions of the Maintenance of Internal Security Act, 1971. I further say that the ground furnished to the detenu is the only ground on which I based my satis- D faction for making the detention order.\"\n\nIt would, thus appear that the District Magistrate has taken a contradictory stand. A close perusal of .his counter affidavit would disclose that he was influenced not only by the ground which was served on the petitioner but' also by other materials on the record. The history sheet E of the detenu which was placed before the District Magistrate has been produced before us and we find that there were as many as four incidents many of whi, ch relate to thefts in running trains. It is true that in another place in his affidavit, the District Magistrate has stated that he was satisfied only on the basis of the incident mentioned in the F ground served on the petitioner. But this is contradictory to what he has stated in the opening paragraph 5 of the counter atlidavit. In these circumstances, therefore, we are satisfied that the District Magistrate before passing the order of detention had other material also before him. It cannot be said to what extent the District Magistrate was influenced by the other materials and not by the material, G which is mentioned in the ground of detention. Thus the order of detention suffers from a very serious infirmity which goes to the root of the matter. The libe11y of the subject being an extremely precious right, where .any infraction of such a right is involved the court must act as a watch-dog and a sentinel on the qui vive to see that every benefit of the lacunae goes to the detenu. We are fortified in our view by rea- H son of the decision of this Court in Khudiram Das v. State of West Benga/(1) where their Lordships observed as follows!-\n\n\"It is, therefore, not orily the right of the court, but also its duty as well to examine what are the basic facts and materials which actually and in fact weighed with the detainincr\n\nauthority in reaching the requisite satisfaction. The jud~ cial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other -~--------'\n\n(I) A.I.R.1975 S.C. 550\n\n- t\n\nSUPREME COURT REPORTS\n\n(1975] SUPP. S.C.R,\n\nbasic facts and materials were before it, it has not allowed them to influence its satisfaction.\n\nThe Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts of materials apart from those admitted by it, which could. have reasonably influenced the decision of the detaining authority and for that purpose, the Conrt can , certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority.\" ·\n\nLearned counsel appearing for the State justified the order of detention on the ground that there is an express statement made by the District Magistrate that he was satisfied only on the incident mentioned in the ground of detention. This argument however is not ten- D able because it is not supported by a perusal of the affidavit filed by the District Magistrate as a whole. We are therefore of the opinion that the order of detention must be set aside and the petitioner be set at liberty forthwith. The application is accordingly allowed and the rule is made absolute.\n\nP.B.R.\n\nAppeal allowed .", "total_entities": 18, "entities": [{"text": "MOHD. DHANA ALI KHAN", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "MOHD. 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{"document_id": "1975_1_129_136_EN", "year": 1975, "text": "12~\n\nBALAKA SINGH & ORS.\n\nSTATE OF PUNJAB\n\nApril 16, 1975\n\n[N. L. UNTWALIA ANDS. M. FAZAL ALI, JJ.J\n\nEvidence-Appreciation of-Addition 'of nanies in inquest rrport-Delay in submission ?I first infonnation report-E'ffect of A cousin of the deceased, \\\\'ho acted as his body guard and the :fir5t appellant and his party were on inimical terms. Some years before the occurrence the first appellant was charged with an offence of murder, in which C 1he cousin was the chief prosecution witness. The appellant was acquitted by the High Court in that case. Shortly before the occurrence the appellant filed an application under s. 107, Cr.P.C. against the cousin of the deceased and his party which gave rise to a fresh grouse between the party of the prosecution and the party of the appellants.\n\nOn the day of the occur~ rence, it was alleged, that the cousin of the deceased saw the appellant and his paiiy consisting of nine members going towards the house of the deceased, D armed with deadly weapons. AU the nine persons elltered the house of the deceased and attacked him. The dceased was a1leged to have fallen dead with the spear blow of the first appellant. The accused caused injuries to the wife when she came to protect the deceased. The Sessions Judge convicted the appeJlant under s. 302 and the other, accused under s. 302 read \\Vith s. 149.\n\nOn appeal the High -Court affirmed the conviction and sentences against the five appellants. and acquitted the remaining four accused on the ground that in the body of the inquest report the names of the four acquitted accued did not find place and that the names of the nine accused including those of the four accused mentioned on the top of the inquest report was an addition made by the Police Sub~Jnspector to help the prosecutior1.\n\nAJlo\\ving the apveal of the five convicted accused to this Court, , HELD : l(a) The prosecution case against the five appeJiants has not been\n\nF proved beyond reasonable donbt. The High Court had given cogent and ::; ubstantial reasons for acquitting the four accused but in that procs it had given a finding which is completely destructive Of the entire prosecution case itself. Although the names of all the nine accuse.d were mentioned at\n\nthe top of the inquest report the High Court found that this was an addition made by the Assistant Sub-Inspector to help the -prosecution and to bring the inquest report in conformity with the F.I.R. The prosecution has not been able to give any reasonable explanation for the omission of the names of the four acquitted accused in the inquest report. Even the Assistant Sub-!nspector, who was exa:nilied as a witness had not chosen to give nny explanation for this deliberate omission. This omission throws serious doubt not only on the complicity of the four accused but also on the veracity and authenticity of the F.l.R. itself. When once it is established that the names of the four accused \\Vere deliberately added in the inquest report at the instance of the prosecution, there 'is no guarantee regarding 'the truth about the participation of the other five accused in assault of the deceased. If the prosecution could go to the extent of implicating four innocent persons by inserting their names in the inquest report and in the FJ.R., they could very well have put in the names of the other five appellants also because they were inimical to the prosecution party. [133C-G-H, 134B-C, 135C-DJ\n\n(b) A perusal of the evidence of the prosecution wit!'lesses shO\\\\'ed that the prosecuticin case against the nppellants and the four accuseci \\vas so in~ cxtricably mixed up that it is not possible to sever one from the other. In the instant case, having regard to the partisan and interested evidence of the prosecution witnesses who could implicate the appellants and the four acct1sec1\n\nequally with regard to the assault on the deceased it -is not nossible to reiect the prosecution case with respect to the fourth accurd and accept it with reopect to the other five appellants. [l35F-G, HJ\n\nI 30\n\nZwinglce Ariel v. State of Madhya Pradesh, A.I.R. 1954 S.C. 15. referred to.\n\n(2) Under the High Court cirt:ulars and police rules it was incumbent upon the police to send a r; opy of t4e F.l.R. to the Ilaqa Magistrale immediately. In the instant case the F.I.R. which was recorded at 10 P.!vf. on the day of the occurrence reached the Ilaqa Magistrate at 11 A.M. on the following day. It is, therefore, clear that the F.I.R. was a belated document. lf this were so, then, there, was sufficient time for the prosecution party, who were undoubtedly inimical to the accused, to deliberate and prepare a false case not only against the fourth accused but also against the five appellants.\n\n[!34F-G-H]\n\nCRIMINAL APPELLATE JuRISDICTJON : Criminal Appeal No. 133 of 1970\n\nAppeal by special leave from the judgment & order dated the 21st January, 1970 of the Punjab & Haryana High Court in Criminal Appeal No. 318 of 1967.\n\nR. L. Kohli, for the appellants.\n\nM. S. Dhillon, for the respondent.\n\nTh\" Judgment of the Court was delivered by :-\n\nFAZAL Au, J.-This is an appeal by special leave preferred by the appellants Balaka Singh, Joginder Singh, Pritam Singh, Darbara\n\nSingh and Jarnail Singh. The appellant Balaka Singh bas been convicted under s. 302 I. P. C. and sentenced to imprisonment for life.\n\nThe other appellants have been convicted under s. 302 read with s. 149 and sentenced to life imprisonment and a fine of Rs. 1,000/- each or in default further rigorous imprisonment for one year. All the appellants have also been convicted under s .. 143 I.P.C. and sentenced to rigorous imprisonment for four months each and under s. 148 to rigorous imprisonment for one year each. Balaka Singh has also been convicteid under s. 325 I.P.C. for haying caused grievous hurt to Gurmej Kaur and Harnam Kaur and sentenced to two years rigorous G imprisonment and fine of Rs. 100. The other accused have also been convicted under s. 325 read with s. 149 I.P.C. and awarded the same sentence as Balaka Singh. Apart from these five , appellants there were four other accused who were prosecuted before the Trial Court of the Additional Sessions Judge, Patiala, namely, Makhan Singh, Sucha Singh H SI o Inder Singh, Teja Singh and Ind er Singh but these accused persons were acquitted on appeal by the High Court of Pnnjab and Haryana.\n\nThe High Court has, however, confirmed the conviction and sentences passed on the appellants and has dismissed the appeal and hence this appeal , before us.\n\nPut briefly tbe prosecution case is as follows. Abont seven years befo.re the occurrence one Gurnam Singh alias Kamai! Singh was murdered and Balaka Singh ; i, ccused and bis brother Asa Singh were tried for the murder of Gurnam Singh and convicted and sentenced under s. 302 f.p .C. to imprisonment for life by the Sessions Judge.\n\nBalaka Singh and Asa Singh, however, went up in appeal to the High\n\nCourt and were acquitted. Banta Singh P. W. 3 who is informant in the instant case was the chief prosecution witness in the murder case in which Gurnam Singh was killed. It is also the admitted case of the prosecution that Balaka Singh and his people were on iruniical terms with Banta Singh and the deceased Gurnam Singh. It was further alleged that Dharam Singh the deceased in the present case was the cousin B of Banta Singh and was nsed by him as a sort of his body-guard to protect him from his enemies. Shortly before the occurrence the appellant Balaka Singh and bis brother Asa Singh has filed an application under s. 107 of the Code of Criminal Procedure against Banta Singh, Dharam Singh, Budha Singh and Kashmir Singh and i_n those proceedings the Jicenced gun of the deceased Dharam Singh was also deposited C and this gave rise to a fresh grouse on the part of the prosecution party against the accused.\n\nBanta Singh and Dharam Singh also had made a counter-application for taking security proceedings against the present appellants but no action thereupon appears to have been t; tken.\n\nThe actual occurrence took place on September l, 1966, when Banta Singh P. W. 3 the informant and Dharam Singh the deceased had gone to see their fields. They returned from their fields at about 6 P.M. and Dharam Singh had entered his house while Banta Singh took his leave and went to his own house. While Banta Singh was going to his house he saw the rune accused persons including the five appellants variously armed with spears, gandasis and lathis proceedings towards the house of Dharam Singh. The party of the accused is said to have entered the house of Dharam Singh and Makhan Singh, Sucha Singh s/o lnder Singh, Inder Singh and Teja Singh-hereinafter referred to as 'the four accused' (since acquitted by the High Conrt) are said to have incited and exhorted their companions to finish off Dharam Singh and not to spare any member of his family. Dharam Singh was busy in tying the rope of his ox which was tethered in his court-yard.\n\nThe accused after entering the court-yard opened attack on the deceased Dharam Singh in which Dalaka Singh took a main part and gave a spear blow on the_chest of Dharam Singh as a result of which he fell down on the ground. Thereafter Banta Singh raised a hue and cry to the effect that Dharam Singh had been murdered. Not content with giving one spear blow to Dharam Singh even after he fell down, Joginder Singh is said to have given a barchha blow on his right knee and Pritam Singh a gandasi blow in the right shoulder of Dharam Singh. Just at that moment Smt. Gurmej Kaur the wife of Dharam\n\nSingh, his mother, W aryam Singh his father and his brothers who were in the house tried to intervene and fell on the body of Dharam Singh. But they were also assaulted by Joginder Singh, Balaka Singh and others. It is said that other inmates of the house were aim assaulted. On hearing the cries of Banta Singh the informant, Harnam Singh\n\nand Kapur Singh reached the spot and they saw Joginder Singh accused catching Dharam Singh by his long hair, .while Balaka Singh had caught him by the legs and were trying to drag the _deceased towards the entrance gate of the house. Kapur Singh who was armed with a gun fired a shot in the air which dispersed the accused party who ran away. In the aforesaid occurrence apart from the deceased Dharam Singh Mst. Gurmej Kaur, Harnam Kaur, Waryam Singh,\n\nSuch.a Singh and Bud_ha Singh also receiveid injuries on their person.\n\nBanta Singh P.W. 3 went to the police station Julkan and lodged the F.I.R. the police station being 6/7 miles away from the place of occmrence. The report was lodged at about 10 P.M. Accordingly a case under s. 302, 307 and other sections of the Indian Penal Code was registerlld by the police. Assistant Sub-Inspector Teja Singh reachcd the spot along with Banta Singh and some constables. After reaching there at about 2 or 2.30 A.M. he prepared the inquest report and injury statement of the injured persons. The dead body was sent to' the mortuary at Patiala for post-mortem examination. The AS.I. also took blood-stained earth from the spot and the blood-stained clothes of the deceased were also taken. After completion of the usual investigations the nine accused persons were challaned in the Court of the J udiqial Magistrate, Patiala who committed them for trial to the Court of Session which resulted in the ultimate conviction and sentence against the accused as mentioned above. The accused pleaded innocence and averred that they had been falsely implicated due to previous enmity.\n\nIn support of the prosecution 19 witnesses were examined but the defence did not give any evidence at all. The learned Sessions JuJge after consldering the evidence came to the conclusion that the prosecution case against all the accused persons was fully proved and he accordingly convicted and sentenced the accused persons as mentioned in his judgment. The accused persons then fileo an appeal in the High Court, which, while accepting the prosecution case against the five appellants in this Court, acquitted the four accused namely, Makhan Singh, Sucha Singh s/o Inder Singh, Teja Singh and Indcr Singh. The High Court has given cogent and substantial reasons for acq1iitting the aforesaid acused, but in that process they have given a finding which, in our opinion, is completely \\destructive of the entire prosecution case itself.\n\nWe may now refer to the reasons given by the High Court for acquitting the four accused mentioned above. The first and foremost reason given by the High Court was that although the inquest report was prepared by the A.SJ. at about 2.30 A.M. in the morning yet the names of the four accused did not find place in the body of the inquest report which was made on the basis of the report made to the police by the informant Banta Singh. It is true that the names of all the nine accused were mentioned at the top of the inquest report but the High Court found that this appears to have been the addition made by the Assistant Sub-Inspector to help the prosecuti?n and to bring the inquest report in conformity with the F.I.R. In this connection the High Court observed as follows ;\n\n \"The first thing to be noted in this connection is that the names of th!'se four appellants do not figur~ in th~ body of the inquest report although they are mentioned m the heading thereof as well as in the first information report. The circumstance leads clearly to the inference that throughout the preparation of the inquest report these appellants were not named as members of the party of the culprits and that\n\n'\" -\n\n• - \"t\n\n- '\n\n.· .. ·•· \"' .\n\n• ...\n\ntheir names were added in the said heading as well as in the A first information report later.\"\n\nWe liave perused Ext. P. H. inquest report ourselves and find that in the' brief facts of the case which were made to the Investigating\n\nOfficer by Banta Singh only the names of Balaka Singh, J oginder B Singh, Pritam Singh, Darbara Singh and Jarnai! Singh are mentioned.\n\nThere is no reference at all to Makhan Singh, Sucha Singh s/o Inder Singh, Teja Singh and Indcr Singh in the report nor is it mentioned that Teja Singh and Inder Singh incited or exhorted the other accused persons to open the assault on the deceased which appears to be the\n\nstarting point of the occurrence. The prosecution has not been able C to give any reasonable explanation for. this important omission in the inquest report. The AS.I. Teja Singh was questioned on this point and he stated thus :\n\n\"The brief statements of the facts of the case mentioned in the inquest report are based on the report lodged by Banta Singh. In this brief statement, however, the names of Inder Singh, Sucha Singh, Teja Singh and Makhan Singh accused are not mentioned as culprits, specifically. I_tl is correct that in the brief facts mentioned in the body, there is no reference of the names of these four men.\"\n\nThus even the AS.I. while admitting that the names of the four accused were not mentioned by Banta Singh has not ch6sen to give any explanation for this deliberate omission to that effect. According to the prosecution the names of the four accused who have been acquitted by the l:Iigh Conrt had already been mentioned in the F.I.R. which was lodged 4/5 hours before the inquest report was prepared.\n\nAny Investigating Officer possessing some intelligence would have at once questioned Banta Singh as to how it is that while he ha.d named\n\nthe four accused in the F.I.R. he had not referred to them in his brief statement in the inquest report. In these circumstances, therefore, G the High Conrt was fully justified in holding that the omission of the names of the four accused acquitted by the High Court in the inquest 1eport was a very important circumstance which went in favour of the follr accused. This omission bas a two-fold reaction. In the first place it throws doubt on the e-0mplicity of the four accused acquitted by the High Court and secondly it casts serious doubt on the veracity and authenticity of the F.I.R. itself. It is not understandable as to why the four accused who are alleged to have taken an active part in the assault on the deceased were not at all mentioned in the inquest report and in the brief statement of the very person who had lodged the I' .I.R. four hours before. Counsel for the State tried to justify this omission on the ground that in the inquest report Ext. P. H. the names of all the nine accused appear to have been mentioned at the top of that document. There is, however, no column for mentioning the names of the accused arn'I, therefore, there was no occasion for the Investigating Officer to have mentioned the names of the\n\nacused in that particular place.\n\n134 SUPREME COURT REPORTS [1975] SUPP. S.C.Jt.\n\nA Finally the Investigating Officer P.W. 23, Te3a Singh admitted in his evidence that he had prepared the inquest report and that he had read out the same to Banta Singh and Harnam Singh P.Ws. but later\n\ntried to say that he did not recollect whether he had read out the inquest reporl'to Banta Singh and Harnam Singh before getting their thumb impressions on the inquest report. This circumstance speaks B; volumes against the prosecution case, If, therefore, it is once established that the names of the four accused were deliberately added in the inquest report at the instance of the prosecution there is no guarantee regarding the truth about the parucipation in the assault. , on the deceased by the appellants, c Another finding which demolishes the entire edifice and fabric of the prosecution case is that the F, LR. itself was not written at 1 C P .M. as alleged by \"the informant Banta Singh but it was written out after the inquest report was prepared by the AS.I. and after the , names of the four accused acquitted by the High Court were inserted D in the inquest report. If this is true then the entire case of the prosecution becomes extremely doubtful. The High Court has also derived rnpport from another important circumstance to come to the conclusion that the F.LR, was not written at 10 P, M. as alleged by the prosecution but after the preparation of the inquest report at about\n\n230 AM. The High Court points out that according to the prosecu- E, tion the special report reached the Ilaqa Magistrate at 11 AM. on September 2, 1966 i.e. more than 12 hours afterr the F.LR. was lodged at the police station, whereas it should been delivered to the Ilaqa Magistrate during the night or at least in the early morning.\n\nCounsel appearing for the appellants submitted that under the High Court Circulars ;µid the Police Rules it was incumbent upon the F _ Inspector who recorded the F .LR. to send a copy of the F, LR. to the llaqa Magistrate immediately without any loss of time and the delay in sending the FJ.R. has not been properly explained by the prosecution as rightly held by the High Court, It is, therefore, clear that the F l.R. itself was a belated document and came into existence during G the small hours of September 2, 1966. Indeed if this was so, then there was sufficient time for the prosecution party who are undoubtedly inimical to the accused to deliberate and prepare a false case not only against the four accused who have been acquitted, but against the other five appellants also, The High Court also found that, the best per&on to explain the delay in sending the special report to the llaqa H Magistrate was the Police Constable who had carried the F.I.R. to the Ilaqa Magistrate but that Constable has not been examined by the prosecution. On this point the High Court observed as follows :\n\n\"The delay with which the special report was made available to the Ilaqa Magistrate is indicative of the fact that the first information report did not come into existence probably till about sunrise by when the dead body had already been despatcheld for the purpose of post-mortem examination to Patiala along with the .inquest report, so that the Investigating Officer was no longer in a position to make alterations in the body of that report and all that he could do was to\n\n- -\n\nadd later on the names of the said. four appellants to its A heading.\"\n\nThis finding of the High Court is based on cogent materials and convincing reasons, but unfortunately the High Court has not considered the effect of this finding on the truth of the prosecution case\n\nwith regard to the participation of the appellants. In our opinion, B i rl view of the finding given by the High Court it has been clearly established that the F.I.R. was lodged not at 10 P.M. as alleged by the prosecution but some time in the _early morning of September 2, J 966. If this was so, then the F.I.R. lost its authenticity. If the prosecution could go to the extent of implicating four innocent persons by inserting their names in the inquest report and in the F.I.R. which was written subsequent to the inquest report they could very well hav\" put in the names of the other five appellants also because they were equally inimical to the prosecution party, and there could be no dilliculty in doing so because it is found by the High Court that all\n\nthe prosecution witnesses belonged to one party who are on inimical D tcnns with the accused.\n\nThe suggestion of the appellants is that they were falsely implicated because the prosecution could not succeed in convicting Balaka Singh for the murder of Gurnam Singh in the previous murder case.\n\nIt was to wreck fresh vengence on the accused that they had been E falsely implicated in the present case. It is true that there are as many as eight witnesses who are alleged to have seen the occurrence and they have given a parrot-like version of the entire case regarding the assault on the deceased by the various accused persons. All these witnesses have with one voice and with complete unanimity implicated even the four accused persons, acquitted by the High Court, equally F with the appellants making absolutely no distribution between one and the other. A perusal of the evidence of the prosecution witnesses would rhow that the prosecution case against the appellants and the four , r.ccuse'd is so inextricably n)b<ed up that it is not possible to sever one from the other. It is true that, as laid down by this Court in Zwinglee - Ariel v. State of Madhya Pradesh(') and other cases which have G followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation H the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply. We are satisfied that in the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses who can impli .ca'e the appellants and the four accused equally with regard to the assault on the deceased it is not possible to reject the prosecution case with respect to the four accused and accept it with respect to the other five appellants. If all the witnesses could in one breath implicate the\n\n(I) A.l.R. 1954 S.C. 15,\n\nIO SC/75-10\n\nA four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to Balaka Singh, Joginder Singb, Pritam Singh, Darbara Singh and Jamail Singh may have been conviniently made to suit the needs of the prosecution ca, se having regard to the animus which the witnesses as also Banta Singh bore against the appellants. In these circumstances, therefore, we are satis- B fied that in view of the finding of the High Court that the F.I.R. was a belated documen! having come into existence much later than the time it is said to have been recorded and which adds the names of the four accused against whom the prosecution case is absolutely identical with the appellants, the case of the appellants cannot at all be C distinguished from that of the four accused in any respect. If the case against the four accused fails, then the entire prosecution will have to be discarded and it will not be possible for this Court to make out a new case to convict the appellants as has been done by the Higb Court.\n\nIn order to test the veracity of the prosecution witnesses we find that one of the eye witnesses, namely, Waryam Singb has deposed that Gunnej Kaur, the wife of the deceased, who was drawing water from the hand pump when the accused came, ran towards Dharam Singh and fell upcn his body in order to protect him from receiving further injuries. At this the appellant Balaka Singb is alleged to have given lier a barcbha blow on her right hand and the appellant J oginder Sini; h gave a harchha blow on the left buttock of Gurmej Kaur. According to the evidence of this witness the two appellants Balaka Singh and Joginder Singb appear to have assaulted Gurmej Kaur with a sharp-cutting instrument, namely, barchha and spear. This version is completely falsified by the medical evidence of Dr. Mohinder Singb who examined Gunnej Kaur and who stated in his evidence that all the injuries on Gunnej Kaur were caused by blunt weapon. Moreover out of the six injuries which Gurmej Kaur received on her body not a single one could be caused by a sharp-cutting instrument because there was no penetrating or incised wounds. The injuries were either contusions,· abrasions or lacerated woullds. While the witness Waryam G Singh says that the accused Joginder Singh had given a barchha blow on the left buttock of Gunnej Kaur, according to the medical evidence it was a lacerated wound deep on the upper and outer part of the left buttock. This, therefore, clearly ; demonstrates the extent to which the witnesses could have gone in order to implicate all the accused.\n\nIn view of these circumstances and the evidence discussed above, H we are clearly of the opinion that the prosecution case against the five appellants has also not been proved beyond reasonable donbt and the manner in which the FJ.R. arrd the inquest repcrt have been made throws considerable doubt on the complicity of the five appel !ants in the crime. - The result is that the appeal is allowed and the order of conviction and sentence passed on all the appellants is set aside. The appellants are acquitted of the charges framed against them and are directed to be released forthwith.\n\nAppeal allowed.\n\nP.B.R.", "total_entities": 23, "entities": [{"text": "BALAKA SINGH & ORS", "label": "PETITIONER", "start_char": 5, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "BALAKA SINGH & ORS", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 26, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "N. L. UNTWALIA ANDS. M. FAZAL ALI, JJ", "label": "JUDGE", "start_char": 60, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "s. 107", "label": "PROVISION", "start_char": 622, "end_char": 628, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 630, "end_char": 636, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 1290, "end_char": 1296, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 1326, "end_char": 1332, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 149", "label": "PROVISION", "start_char": 1344, "end_char": 1350, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 5280, "end_char": 5286, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 5384, "end_char": 5390, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 5401, "end_char": 5407, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5591, "end_char": 5596, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 148", "label": "PROVISION", "start_char": 5668, "end_char": 5674, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 325", "label": "PROVISION", "start_char": 5763, "end_char": 5769, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5770, "end_char": 5775, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 325", "label": "PROVISION", "start_char": 5961, "end_char": 5967, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 149", "label": "PROVISION", "start_char": 5978, "end_char": 5984, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5985, "end_char": 5990, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 6792, "end_char": 6798, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 107", "label": "PROVISION", "start_char": 7548, "end_char": 7554, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7562, "end_char": 7588, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 302, 307", "label": "PROVISION", "start_char": 10643, "end_char": 10654, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10681, "end_char": 10698, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1975_1_137_144_EN", "year": 1975, "text": "NATABAR PARIDA BISNU CHARAN PARIDA BATAKRUSHNA A\n\n. PARIDA BABAJI PARIDA\n\nSTATE OF ORISSA\n\ntlpril 16, 1975\n\n[N. L UNTWALIA ANDS. MURTAzA FAZAL ALI, JJ.]\n\nCode of Criminal Procedure, 1898, Sections 167 and 344-Remand of an .accused to custody-Courts, if .ave inherent power.\n\nCode of Criminal Procedure, 1973, Sections 167(1), Proviso (a) to Sec- C tion 167(2), 428 and 484(2)(a)-lnvestigation pending at the commencement of the Act and not completed wi1hin the period of 60 days-Accused, if ha.! a right to be released on bail.\n\nIn respect of an occurrence which took place on 8th March, 1974, at a place in the DistriCt of Cuttack, a police investigation commenced in Con~\n\nnection with the offences alleged to have been committed under sections D 147, 148, 307~ 302 simpliciter as also with the aid of section 149 of the Indian Penal Code. Of the eight persons arrested during investigation, four have been enlarged on bail by the Sessiora Judge of Cuttack, but the learned Sessions Judge refused to grant bail to the four appellants.\n\nTheir cont.ention based on proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973, was rejected by the learned Judge relyinx on the saving clause (a) of sub-section (2) of section 484. The High Court E a1so rejected their contention. This appeal has been filed on the basis of the special leave granted by the Supreme Court.\n\nHEID : (i) A Magistrate having jurisdiction to try a case could remand an accused to jail custoO.'y from time to time during the pendency of the investigation in exercise of the power under section 344 of the Code of Criminal Procedure, 1898. In other words, the power of remand by the Magis. trate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised whenever necessary to aid the investigation and collection of further evidence.\n\n[141E-F]\n\nA. Lakshmanrar) v. Judicial Magistrale, First Class Parvatipuram and others, [1970] 3 S.C.C. 501 and Gouri Shankar !ha v. Tlie State of Bihar and others, [1972] 1 S.C.C. 564, relied on.\n\n.f..\n\nThe Superintendent and Remembrancer of Legal Affairs Governmen1 of West Bengal v. Bidhindra Kumar Roy and others, A.I.R. 1949, Calcutta 143; Chandradin Dubey v. The State, 1955 Bihar Law Journal Reports, 323; Dukhi and another v. State and another, A.I.R. 1955 Allahabad, 521; Shrilal Nanclram & Another, v. R. R. Agrawal, S. D. M. First Class, Gwalior and anather Kuttan, A.l.R. 1964, Kerala, 232; Artatran Mahasuara and others v State of H Orissa, A.LR. 1956 Orissa, referred to. ·\n\n(ii) courts will have no inherent power of remand of an accused to any custody unless the power is conferred by law. The High Court has erred in assuming, without reference to section 344 of the old Code that $UCh a power existed. [1400] '\n\n(iii) The COlllll)and of the Legislature in proviso(a) to section 167(2) pf the. new Code IS that the accused person has got to be released on bail if he is prepard to and does furnish bail and cannot be kept in detention\n\nyond the period of 60 ?ays even if the investigation may still be proceed. ing. 1\\}thongh !he expression 'reasonable cause' occurring in sub-section (lA) of \"\"ction 3~4 IS no \"'.here to be found in section. 309 of the New Code, the. explanation to section. 344 of the. Old Code has been retained as explanation 1 w Section 309 m .the identical language. The law as engrafted in\n\nA proviso (a) to section 167(2) and section 309(2) of the New Code confers the po\\\\ers of remand to jail custody during the pendency of the investigation only under the fonner and not under the latter. S'!ction 309(2) is attracted r\n\nonly after cognizance of an offence bas been taken or commencement of trial has proceeded. [142G-H]\n\nQuere : \\Vhat is the purpose of Explanation-1 in section 309 of the Code of Criminal Procedure, 1973.\n\n(iv) Unlike the wordings of section 428 the language of section 167(1) \\Vhich will govern .sub-section (2) also, is-\"whCnever any person is arrested\", suggesting thereby that the section would be attracted when the arrest h; made after coming into force of the Act of 1973. The expression used in section 428 is \"where an accused person has, on conviction been sentenced ..... \". To the facts of the present care, clause (a) of subsection (2) of section 484 will apply. Immediately before the 1st day of April, 1974 C the investigation of . this case was pending.\n\nSaving clause (a) therefore, en joins that the said investigation shall be continued or made in accordance with Chapter XIV of the old Code. Section 167 of that Code could not enable the Magistrate to remand the appellants to jail custody 6.uring the pendency of the investigation. The police could seek the help of the Court for excr cise of its power of remand under section 344, bringing it to the notice of the Court that sufficient evidence had been obtained to -raise a suspicion that the appellants may have committed an offence and there will be hindrance to D the. obtaining bf further evidence Unless an order of remand was made.\n\n{143C-D-144B-C]\n\nMr. Boucher Pierre Andra v. Superi1ucndent, Central Jail, Til1ar, Ne1v Delhi and another, A.l.R. 1975 S.C. 164, referred to.\n\nCRIMINAL APPELLATE JURISDICTION': Criminal Appeal No. 359 of 1974.\n\nAppeal by special leave from the Judgment and order dated the 6th August 1974 of the Orissa High Court in Criminal Misc. Case No. 180 of 1974.\n\nSharad Manohar, R. N. Nath and V. N. Ganpule, for the appellant.\n\nGobind Das, and B. Parthasarathi, for the respondent.\n\nThe Judgment of the Court w.a.s delivered by :-\n\nUNTWALIA, J.-An occurrence took place on the 8th of March 1974 at a place situated in the District of Cuttack, Orissa. First Information Report was lodged on the 9th March, 74 and a police investiga- G tion started in connection with the offences alleged to have been comnJ.itted under sections 147, 148, 307, 302 simplicitcr as also with the aid of section 149 of the Indian Penal Code.\n\nThe four appellaRts in this appeal by special leave were arrested by the police in the course of the investigation on the 8th March and four others who have been enlarged on bail by the Sessions Judge of Cuttack were arrested on the 14th March.\n\nThey were produced before the H Magistrate who remanc!ed them to jail custody from time to time.\n\nThe learned Sessions Judge released on bail four of the accused but\n\nsed to grant bail to the appellants.\n\nAn argument based upon , i'oviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure 1973 (Act No. 2 of 1974) hereinafter referred to as the New Cod~, was rejected by the Sessins Judge relying on the saving clause (a} of sub-section (2) of sectlon 484.\n\nN. PARIDA v. ORISSA (Untwalfri, J.)\n\n'The appellants approached the Orissa Ij:igh Court and pressed their cases for releasing them ou bail on merits as well as on the ground of the provision of law aforesaid contained in the New Code.\n\nA Bench of the High Court by its order dated the 6th August, 1974 has repelled the arguments put forward on behalf of the appellants and dismissed their application for bail.\n\nThey have filec! the present appeal by special leave of this Court.\n\nThis Court is not expected to examfoe afresh the question of releasing the appellants on bail on merits. But the qllestion for consideration is whether the appellants are entitled to be released on bail under the proviso (a) of section 167(2) of the New\n\nCode.\n\n>- , The New Code came into force on aml from the 1st of April,\n\n1974. Section 484(1) repealed the Coc!e of Criminal Procednre, 4 1898-hereinafter called the Old Code. But there were certain saving clauses engrafted in sub-section ( 2); the relevant clause (a) would be adverted to hereinafter in this juc!gment.\n\nBefore doing so . D it is necessary to appreciate the position of law in relation to the power of remand by a Magistrate during the course of investigation of a case by the police.\n\nA person arrested without warrant could not be detamed by a police officer for a period exceeding 24 hours as provic!ed in section 61 of the Old Code.\n\nSection 167(1) required the police officer to forward the accused to the nearest Magistrate if the investigation could not be completed within the period of 24 hours fixed by section 61 anc! if there were grounds for believing that the accusation or information was well-founded.\n\nSub-section (2) provided :\n\n\"The Magistrate to whom an acFused person is forwarded under this section may, whether he has or has not juris- , diction to try the case, from time to time authorise the detention of the accused in such custody as st1eh Magistrate thinks fit, for a term not exceeding fifteen days on the whole. If he has not jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such juriseiction : \"\n\nThe Magistrate to whom the accused was forwarded could remand him t.o police custody or jail. c!IStody for a term not exceec!ing 15 days m the whole under section 167(2). Even the Magistrate who had jurisdiction to try the case could not remand the accused to any H custody beyond the period of 15 c!ays under section 167(2) of the Old Code.\n\nThere was no other section which in clear or express\n\nlanguag~ conferred this po:ver of remand on the Magistrate beyol)d the penpd of 15 days durmg the pendency of the investigation an<! before the taking of cognizance on the submission of Charge-Sheet.\n\nSection 344, however, enabled the Magistrate to postpone the com-\n\nSUPREME COURT REPORTS [1975] SUPP. S.C.ll.\n\nA mencement of any enquiry or trial fov any reasonable cause.\n\nThe explanation to section 344 of the Old Code read as follows :\n\n\"If sufficient evidence bas been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.\"\n\nVarious High Courts had taken the view that a Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pen<!ency of the investigation in exercise of the power under section 344 : to wit, The Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v ..\n\nC Bidhindra Kumar Roy and others('); Chandradi Dubey v.\n\nThe State( 2 ), Dukhi and another v. State and anolher(\") ; Shriial Nandram and another v.\n\nR. R. Agrawal, S.\n\nFirst Class, Gwalior and another(') and State of Kera/a v.\n\nMadhavan Kuttan( 5 ). A contrary view was taken by the Orissa High Court in the case of Artatran Mahasuara and others v. State of Orissa(6 ). It D may be emphasised here that the Court will have inherent power of remand of an accused to any eustacy unless the power is conferred by law.\n\nIn the order under appeal the High Court without reference to section 344 of the Old Code, seems to have assumed that such a power existed.\n\nThat is not correct.\n\nThere are two decisions of this Court affirming the view expressed E by majority of the High Courts and over-ruling the one taken by the Orissa High Court in the case referred to above.\n\nIn A.\n\nLakshmanarao v. Judicial-Magistrate, First Class Parvatipuram and\n\nothers(\") an argument was advanced that section 344 falling in Chapter 24 of the Old Code which contained general provisions as to enquiries and trials could not apply to a case which was at the stage of investigation and collection of evidence only.\n\nDua, J delivering the judgment on be)lalf oE this Court repelled the argument thus at page 506.\n\n\"This argument appears to !!S to be negativecl by the express language both of sub-section (I-A) and the explanation.\n\nUnder sub-section (1-A) the commencement of the inquiry or trial can also be postponed.\n\nThis clearly seems to refer to the stage prior to the commencement of the inquiry.\n\nThe explanation makes it clear beyond doubt that reasonable cause as mentioned in sub-section ( 1-A) includes the likelihood of obtaining further evidence during investigation by securing a remand.\n\nThe language of section 344 is unambiguous and clear an<! the fact that this section occurs in Chapter 24 which contains general provisions as\n\n(') A.t.R. 1949. Calcutta, 143. (') 1955 Bihar Law Journal Reports, 323. §\n\nA.I.R. 1955, Allahabad, 521. ( A.LR. 1960, Madhya Pradesh, 135. ( A.I.R. 1964, Kerala, 232.\n\n(6) A.I.R 1956 Orissa. 129\n\n(7) [1970] 3 s.c.c\n\n' -\n\n• -\n\nI -\n\n- '\n\nN. PARIDA v. ORISSA (Untwalia, !.)\n\nto inquiries and trials does not justify a strained construction.''.\n\nIn Gouri Shankar !ha v. The State of Bihar and others(') Shela!,\n\nJ. delivering the judgment on behalf of the Court has said at page 569\n\n\"In cases falling under section 167, a magistrate undoubtedly can order .custoc!y for a period at the most of fifteen days in the whole and such custody can be either police or jail custody.\n\nSection 344, on . the. othr hand, appears in Chapter XXIV which deal with mqumes and trials.\n\nFurther, the custody which it speaks of is not such custody as 'the magistrate thinks fit as in Section 167, but only jail custody, the objecc being that once an enquiry or a trial begins it is not proper to let the accused remain under police influence.\n\nUnder this section, a magistrate can remand an accused person to custody for a term not exceeding fifteen days at a time provided that sufficient evidence has been collected to raise a suspicion that such an accusec! person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand.\"\n\nFurther says the learned Judge at page 570 :\n\n\"The fact that Section 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does uot\n\napply to cases in which the proces& of investigation anc!\n\nE collection of evidence is still going on.\"\n\nIt would thus be seen that under the Old Code the Magistrate was given the power under section 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on.\n\nIn other words, the power of remanc! by the Magistrate during the F process of investigation and collection of evidence was an integral part of the process.\n\nThe power was meant to be exercised, whenever necessary, to aid the investigation and collection of further evidence.\n\nLet us now examine the position of law under the New Code.\n\nNo police officer can detain a person in custody, arrested without a warrant, for a perioc! longer than 24 hours as mentioned in section 57 corresponding to section 61 of the Old Code.\n\nSection 167 occurring in Chapter XII bearing the heading \"Information to the police and their powers to investigate\"-the same as in Chapter XIV of the Old Code-has made some dr, astic departure. Similar is the position in regard to section 309 of the New Code corresponding to section 344 of the Old Code.\n\nWhile retaining the provision of forwarding the accused to the nearest Magistrate (of course under the New Code to the Judicial Magistrate), and while authorising the Magistrate to remand the accusec! to either police or judicial custody for a period not exceeding 15 days, proviso (a) has been added in these terms :\n\n(1) [1972] 1 s.c.c. 564.\n\nSUPREME CO\\.JRT REPORTS [1975] SUPP. s.c.R.\n\nA \"Provided that-\n\n( a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds\n\nexist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accusecl person shall be released on bail if he is prepared to and does furnish bail; and every person released on baH under this section shall be deemed to be so rclcasecl under the provisions of Chapter XXXIII for the purposes of that Chapter ;\"\n\nThe expression \"the Magistrate\" in the proviso would mean the Magistrate having jurisdiction to try the case.\n\nSection 309 .(2) says :\n\n\"If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks\n\nfit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody :\n\nE Although the expression 'reasonable cause' occurring in sub-section (lA) of section 344 is no where to be found in section 309 of the New Code, the explanation to section 344 of the Old Code has been retained as Explanation 1 to Section 309 in the identical language.\n\nThe law as engraj'ted in proviso (a) to section~ 167(2) and section\n\n309 ( 2) of the New Code confers the powers of remand to jail cus- F tody during the pendency of the investigation only under the former and not under the latter.\n\nSection 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation-I in section 309 is not quite clear.\n\nBut then .the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to ancl does furnish ba; t and cannot be kept in d\"'ention beyond the period of 60 days evw if G the investigation may still be proceeding.\n\nIn serious offences of criminal conspiracy-murders, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days.\n\nYet the intention of the Legislature seems. to be to grant no discretion to the court and to .make it obligatory for 1t to release the accused on bail.\n\nOf cm1rs~, it has H been provided in proviso (a) that the accused released on bil: under section 167 will be deemed to be so released under the provlSlons of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it consides necessary so to clo to direct that such person be arrested and comnutted to custody as prvided in sub-section ( 5) of section 4.3 7 occurring ir_i Chapter\n\nXXXIII.\n\nIt is also clear that after the takmg of the cognizance the\n\n' -\n\nN, PARIDA v. ORISSA ( Untwa/ia, J.) 143\n\npower of remand is to be exercised under section 309 of the New Code.\n\nBut if it is not possible to complete the investigation withiu a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail.\n\nSuch a law may be a \" paradise for the criminals,\" but surely it would not be so, as sometimes it is supposed to be, because of the courts. It would be so under the command of the Legislature.\n\nBut the question In this case is whether during the pendency of the investigation which started before coming into f9rce of the New Code the appellants can press into service proviso (a) to section 167\n\n(2) of that Code and claim to be released on bail as a matter of right when they are prepared to furnish bail.\n\nThe answer to this qnestion depends on the interpretation of sections 167 and 484 of the New Code.\n\nUnlike the wordings of section 428 the language of section 167(1) which will govern sub-section (2) also, is-\"whenever any person is arrested\", suggesting thereby that the section would be attracted when the arrest is made after coming into force of the Act.\n\nWhile the expression used in section 428 is \"where an accused person has, on conviction, been sentenced ...... \" Interpreting such a phrase it has been held in the case of Mr. Boucher Pierre Andra v. Snperintendent, Central Jail, Tihar, New Delhi and another(') by Bhagwati, J. delivering the judgment of this Court at page 166 :\n\n\"This section, on a plain natural construction of its language, posits for its applicability of fact situation which is described by the clause \"Where an accused person has, on conviction, been sentenced to imprisonment for a term\".\n\nThere is. nothing in this clause which suggests, either expressly or by necessary implication, that the conviction and sentence must be after the coming into force of the New Code of Criminal Procedure.''\n\nWe may, however, hasten to add tha.t in spite of the phrase \"is arrestee\" occurring in section.167(1), since the Old Code has been repealed by sub-section (1) of section 484 of the New Code, the provision would have applied, a fortiori, if the savings provided in sub-section (2) would not have applied to the situation with which we are concerned in this case.\n\nIn our judgment clause (a) of subsection (2) of section 484 does apply. It reads as follows :\n\n\"Notwithstanding such repeal,-\n\n(a) If, immediately, before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the H provisions of the Code of Criminal Procedure J 898, as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force :\"\n\n(1) A.LR.I 975 S.C. 16t\n\nlinmcdiately before the !st day of April, 1974 tbe investigation of this case was pending.\n\nSaving clause (a) therefore enjoins t)iat tbe said investigation shall be continued or made in accordance with tbe provisions of the Okl Code. The police officer, therefore, making the investigation has to continue and complete it in accordance with Chapter XIV of the Old Code.\n\nSection 167 of that Code could not enable tbe Magistrate to remand the -appellants to jail custody during the pendency of the investigation.\n\nThe police could seek the help of the Court for exercise of its power of remand un<.'cr section 344, bringing it to the notice of the Court that sufficient evidence , had been obtained to raise a suspicion that the appellants may have committed an offence and there will be hindrance to the obtaining of further evidence unless an order of remand was made.\n\nAs we have said above, invoking the power of tbe court uneer section 344 of the Old Code by the Investigating Officer would be a part of the process of investigation which is to be continued and made in accordance with the Old Code. That being so, we hold that the appellants in this case cannot claim to be released uncer proviso (a) to section 167 (2) of the New Code.\n\nIn the result the appeal fails and is dismissed.\n\nAppeal dismissed.\n\nV. M. K.\n\n, -", "total_entities": 83, "entities": [{"text": "NATABAR PARIDA BISNU CHARAN PARIDA BATAKRUSHNA A\n\n. PARIDA BABAJI PARIDA", "label": "PETITIONER", "start_char": 0, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "NATABAR PARIDA BISNU CHARAN PARIDA BATAKRUSHNA PARIDA BABAJI PARIDA", "offset_not_found": false}}, {"text": "STATE OF ORISSA", "label": "RESPONDENT", "start_char": 74, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA", "offset_not_found": false}}, {"text": "N. L UNTWALIA ANDS. MURTAzA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 109, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "S. 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{"document_id": "1975_1_145_150_EN", "year": 1975, "text": "~--\n\nDAITATRAYA NARAYAN PATIL\n\nSTATE OF MAHARASHTRA\n\nApril 16, 1975\n\n[N. L. UNTWALIA AND S. MURTAZA FAZAL- ALI, JJ.J\n\nI.P.C. Sec. 21, 353, 355--Public servant-Duty assigned to a public servant by an executive order whether public duty.\n\nShri Antulay,. ::, Minister presided over a meeting of the District Advisory Committee. The appellant attendeci.' that meeting as an M.L.A. and his bro-\n\n14 5\n\nther attended as a Sabha-Patai of the Building Deprtment of the Zila Parishad.\n\nC According to the prosecution, the appellant and his brother assaulted Shri Antulay, a public servant in the execution of his duty, a.s such public servant within the meaning of Sec. 353 of the Code.\n\nThe Magistrate held that Shri Antulay \\vas a public servant and that, therefore, the charge could be\n\nframeQ under Section 353.\n\nOn revision, the Sessions Court held that charges coulQ' be framed against the appe1lant under Sec. 353 and 355 of the Code.\n\nA revision petition filed b}' the appellant in the High Court was dismissed.\n\nOn appeal by Special Leave, it was contended before this Court by the D appellant:\n\n(1) That the District Advisory Committee is not a Statutory Committee. It was constituted under an administrative order of the Government. It exercised no Governmental authority. Its function is onJy to make recommendations to the Government.\n\n(2) The Chairman presiding at a meeting of the Committee is not acting as a Public servant.\n\n(3) When an assault was made or criminal force was used against the Chairman as alleged by the prosecution at such a meeting it was directed against the person presiding at the meeting and not against a public servant.\n\n( 4) A Ministr may be a public servant but while presiding over a meeting of the Advisory Committee he was not functioning as a F Minister but as a Chairman. .\n\n(5) That the Judicial Magistrate committed an error of law in treating the chargesheet a complaint and framing the charge: against the appellant for a non-cognizable offence under section 355/511 of the Code.\n\nDismissing the appeal,\n\n. HEID : The District Advisory Committee V.'as constituted by a notification of _th~ Govenment of Maharashtra fr. the purpos~ _of reviewing the work of Zda Parshad and Panchayat Sam1t1es.\n\nThe M1n1ster a public servant was the Chatrman of the Committee. The Divisional Commissioner was to be the: convenor and t?e Deputy Commissioner was to act as the Secretary .. They were all pubhc servants.\n\nThe duty assigned to a public servant by. hrn. master \\\\'hether. under a statte or by the executive order, will assume the character of pubhc_ duty provided the duty assigned is not illegal or against the public policy.\n\n[148B-C, 149-B-C] ·\n\nShri AntuJay, therefore, was a public servant.\n\nCRIMINAL APPELLATE J URJSDICTJON ; Criminal Appeal No. 257 of 1972.\n\nA Appeal by special leave from the judgment and order dated the t 29th June, 1972 of the Bombay High Court in Criminal Rcv1s10n\n\nAppln. No. 1129 of 1971. ·\n\nM. C. Bhandare, R Nagaratnam and Manju Jaitley, for appellant.\n\nH. R. Khanna, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nthe\n\nUNTWALIA, J.-This is an appeal by special leave. The question C which falls for determination is whether a charge could be legally and\n\n validly framed on the facts alleged by the prosecution against the appellant under section 353 of the Indian Penal Code-hereinafter called the code.\n\nD An incident is said to have taken place in a meeting of the District Advisory Committee of Kolaba District held on the 22nd of August,\n\n1970 at about 3. 00 p.m. in a panda! near the Nehru Hall at Alibag under the Chairmanship of Shri A. R. Antulay-a Minister of the Government of Maharashtra. The appellant was a member of the Legislative Assembly and bis brother was the Sabhapati of the Buikling Department of the Zilla Parishad.\n\nBoth of them attended the meeting.\n\nE Certain incidents took place in that meeting, which according to the prosecution, amounted to assault or use of criminal force by the appellant to the Minister--, a, public servant-in the execution of his duty as such public servant within the meaning of section 353 of the Code. It was further alleged that the action of both the brothers also amounted to assault or use of criminal force to Shri Antulay intending thereby F to dishonour him, otherwise than on grave and sudden provocation given\n\nby that person, within meaning of section 355.\n\nA complaint of the incident was lodged with the police.\n\nInyestigation was made and Charge-sheet was submitted in the court of the Judicial Magistrate at Alibag against both the accused for offences alleged to have been committed by them under sections 353 and 355 read with section 34 of the Code.\n\nOn perusal of the papers in accordance with section 251 A G of the Code of Criminal Procedure, 1898 and after hearing the arguments the Magistrate found that Shri Antulay, being a Minister, was a public servant.\n\nIn that capacity he was presiding over the meeting of the District Advisory Committee of Kolaba District. He, however, held that the meeting of the Committee was illegal because it was not convened at the instance of the Commissioner of the Division as required by the Rules. HcaJso held that the appellant who was accused no. 1, H at the most, had prepared to assault the Minister and not actually assaulted or used criminal force.\n\nThe appellant was discharged by the Magistrate in relation to the charge under section 353, but a charge under section 355 read with section 511 was framed against him. flis brother, accused no. 2, was however completely exonerated and discharged.\n\nD. N. PATIL v. MAl!ARASHT!lA ( Untwalia, J.)\n\nTwo revisions were filed before the Sessions Judge, Kolaba-one . by the State and the other by the appellant.\n\nThe State wanted charges to be framed against the appellant under sections 353 and 355 and also against accused no. 2. The appellant, however, wanted the Sessions Jndge to quash the charge framed against him under section 355/ 511 of the Code.\n\nThe learned Sessions Jndge allowed the revision filed by the State in. part and dismissed the one filed by the appellant.\n\nHe directed the framing of charges against the appellant under both the sections, viz. 353 and 355 of the Code. The discharge of accused no. 2 was, however, maintained.\n\nThe matter was taken further in revision before the Bombay High Court by the appellant only.\n\nThe High Court has directed the framing of the charge against the appellant beth under section 353 and 355 of the Code.\n\nHence this appeal by special leave.\n\nLearned counsel for the appellant did not canvass before us the justification of the discharge of the appellant foil the offence under section 353 of the Code on the ground of the allegedly illegal convening of the meeting of the Advisory Committee. We are, therefore, not called upon to express any opinion of ours in this judgment in that regard.\n\nNor should we be deemed to have expressed! any opinion, even by implication, as to the truth or falsehood of the allegations made against the appellant, or, whether the prosecution by its evidence will be able to prove the charge against the appellant.\n\nWe confine our judgment to the decision of the only question which falls for our determination.\n\nLearned counsel for the appellant submitted :\n\n(1) That the District Advisory Committee is not a Statutory Committee. It was constituted under an administrative order of the Government. It exercised no Governmental authority.\n\nIts function is only to make recommendations to the 6overnment.\n\n(2) The Chairman presiding at a meeting of the Committee is not acting as a public servant.\n\n(3) When an assault was made or criminal force was used against the Chairman as alleged by the prosecution at such a meeting it was directed against the person presiding at the meeting and not against a public servant.\n\n( 4) A Minister may be a public servant but while presiding over a meeting of the Advisory Committee he was not functioning as a Minister but as a Chairman.\n\n( 5) That the Judicial Magistrate committed an error of law in treating the Charge-Sheet as a complaint and framing the charge against the appellant for a non-cognizable\\ offence under section 355/511 of the Code .\n\nThe decision on the last point urged on behalf of the appellant would have been necessitated provided the argument advanced on his behaif in relation to the charge of the cognizable offence under sectio11\n\nA 353 of the Code would have been well-founded, and correct; otherwise not.\n\nSince in our opinion it is not so we do not deal with the last point and take up the discussion of the first four points together, as really speaking, they are all off-shoots of one and one point only, namely, whether while presiding over the meeting of the Advisory Committee the Minister was executing or discharging his duty as a B pu hlic servant. .\n\nAs stated in the judgment of the High Court the District Advisory Committee was constituted by a notification of the Government of Maharashtra, Cooperation and Rural Development Department dated 5-8-1964 for the purpose of reviewing the work of Zilla Parishads and C Panchayat Samitis.\n\nThe circular Ext-15 issued by the Maharashtra Government on 5-8-1964 was obviously not in exercise of any statutory power. It was in exercise of the executive power which is co-extensive with the legislative power of the State. In the circular it\n\nis stated :\n\n\"For quite some time Government has had in view the question of reviewing the working of Zilla Parishads and Panchayat Samitis (Plan and Development Works) in the State as a regular feature. It is, therefore, felt that this object in view can be substantially achieved by holding sixmonthly meetings of Regional Officers, District Officers, Office-Bearers of Zilla Parishads and Panchayat Samitis and M.Ps., M.L.Cs., and M.L.As., under the Chairmanship of the Minister in-charge of the District.\n\nGovernment has, therefore, decided that such meetings should be convened twice a year in each of the Districts in the Revenue Division by the Divisional Commissioner in consultation with the Minister in charge of the District. The meetings should be held at the Headquarters of the District concerned. The Deputy Commissioner (Development) of the Division con-· cerned should work as the Secretary of the Committee.\n\nThe work pertaining to these meetings should be carried out by the Development Branch of the Commissioner's Office and various actions to be taken as a result of deliberations in these meetings should be pursued by the Deputy Commissioner (Development) under the guidance and supervision of the Divisional Commissioner.\"\n\n; '\n\nThe terms of reference for the working of the Committee as also its composition were indicated in the subsequent part or the circular.\n\nUnder the orders of the Government, therefore, its officers includ- H ing the Minister of the District were to carry out certain public duties in connection with the reviewing of the working of Zilla Parishads and Panchayat Samitis which, of course, were constituted undr the statutes.\n\nThe Minister, a public servant, was to be the Chamnan of the Committee. The Divisional Commissioner was to be the convener of the meeting.\n\nThe Deputy Commissioner (Development) of the Division concerned was to act as the Secretary. They were all\n\n' -\n\n..,.\n\nD. N. PATIL v. MAHARASIITR~ ( Untwalia, !.) 149\n\npublic servants.\n\nIs it possible to take the view that the Divisional A Commissioner or the Deputy Commissioner while performing the functions aforesaid under orders of the _Governmen) conveyed in the circular dated 5-8-1964 were performing any private functions and not public duty ? Obviously it was a part of the public duty assigned te them by the Government.\n\nThe duty assigned to a public servant by bis master, be it be under a statute or by an executive order, will assume the character of public duty, provided the duty assigned is not illegal or against public policy.\n\nWill it make any difference in the case of a Minister ? In our judgment, not.\n\nThe Minister is a public servant-not disputed.\n\nIn accordance with the instructions iosued by the Government he was to preside over the meetings of the Advisory Committee.\n\nHe was doing so as a Minister and in execution and discharge of his duty as such public servant.\n\nIt is no doubt true that non-official office bearers and members of the Committee could -not be public servants.\n\nNon-officials appointed to a Committee constituted under a statute may, under certain circumstances, become public servants within the meaning of section 21 o(\n\nthe Code; but surely non-official members of the Committee in question could not be so.\n\nYet it is wrong to say that the officials and persons who were public servants discharging their duties as officcbearers and members of the Advisory Committee were not performing any duty as such public sei; vants.\n\nAny person who was not a public servant appointed as a Chairman of the Committee may not be a public servant because the office of the Chairman of the Advisory Committee is not such that would make him a public servant.\n\nBut the matter. is different when a public servant, under the executive instructions of the Government, is appointed the Chairman of the\n\nCommittee. ·\n\n Learned counsel for the appellant in support of his submissions . placed reliance upon two decisions of this. Court viz. Padam Sen and\n\nanother v. The State of Uttar Pradesh(') and The State of Gujarat v.\n\nManshankar Prabhasankar Dwivedi( 2 ).\n\nNeither of them is apposite and helps the appellant.\n\nIn the case of Pa, dam Sen the appointment of the Commissioner by the Additional Munsif was found to be null and void; yet it was argued with the aid of Explanation 2 to section 2.1 of the Code that he was a public servant. The argument was repelled by Raght1bar Dayal, J. c!elivering the judgment on behalf of the Court at page 890 thus :\n\n\"We do not agree with this contention, and are of opinion that the Explanation applies only when there be a post in existence.\n\nThe Explanation does not apply when there is no pre-existing post or when the person. appointing has no authority to appoint.\"\n\nIn the case of State of Gujarat v. Dwivedi(2 ) the question arose in\n\nrelation to an offence said to have been committed by the respondent nuder section 161 of the Code and section 5 ( 2) read with section\n\n(') [1961] I SCR 884.\n\n('( [1973] 1 SCR 313:\n\nA 5(1)(d) of the Prevention of Corruption Act, 1947.\n\nD.wi_vedi was a senior lecturer at a Government College.\n\nIn that capacity, Ul)- doubtedly, he was a public servant.\n\nHe is alleged to have accepted the gratification of Rs. 500 other than legal remuneration for showing favour to a candidate in his capacity as E1'a.miner for Physics Practical in the examination held by the Gujarat University.\n\nHe was B appointed an examiner by the University and1 not by the GovernmenL\n\nin such circumstances it was held that Dwivedi as an examiner of the University was not a public servant as it had no connection with !1is being a Government servant.\n\nFor the reasons stated above we hold that no interference is called C for by this Court in the framing of the charge against the appellant as per the directions of the High Court.\n\nThe appeal is, therefore, dismissed. ' '\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 32, "entities": [{"text": "DAITATRAYA NARAYAN PATIL", "label": "PETITIONER", "start_char": 5, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "DAITATRAYA NARAYAN PATIL", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 31, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "N. L. UNTWALIA", "label": "JUDGE", "start_char": 70, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL- ALI, JJ", "label": "JUDGE", "start_char": 89, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 118, "end_char": 123, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sec. 21, 353, 355", "label": "PROVISION", "start_char": 125, "end_char": 142, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Sec. 353", "label": "PROVISION", "start_char": 656, "end_char": 664, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Section 353", "label": "PROVISION", "start_char": 794, "end_char": 805, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Sec. 353 and 355", "label": "PROVISION", "start_char": 903, "end_char": 919, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 355", "label": "PROVISION", "start_char": 1994, "end_char": 2005, "source": "regex", "metadata": {"statute": null}}, {"text": "section 353", "label": "PROVISION", "start_char": 3328, "end_char": 3339, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3347, "end_char": 3364, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 353", "label": "PROVISION", "start_char": 4123, "end_char": 4134, "source": "regex", "metadata": {"statute": null}}, {"text": "section 355", "label": "PROVISION", "start_char": 4400, "end_char": 4411, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 353 and 355", "label": "PROVISION", "start_char": 4658, "end_char": 4678, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 4689, "end_char": 4699, "source": "regex", "metadata": {"statute": null}}, {"text": "section 251", "label": "PROVISION", "start_char": 4758, "end_char": 4769, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 4781, "end_char": 4813, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 353", "label": "PROVISION", "start_char": 5440, "end_char": 5451, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 355", "label": "PROVISION", "start_char": 5472, "end_char": 5483, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 511", "label": "PROVISION", "start_char": 5494, "end_char": 5505, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "sections 353 and 355", "label": "PROVISION", "start_char": 5833, "end_char": 5853, "source": "regex", "metadata": {"statute": null}}, {"text": "section 355", "label": "PROVISION", "start_char": 5981, "end_char": 5992, "source": "regex", "metadata": {"statute": null}}, {"text": "section 353 and 355", "label": "PROVISION", "start_char": 6486, "end_char": 6505, "source": "regex", "metadata": {"statute": null}}, {"text": "section 353", "label": "PROVISION", "start_char": 6692, "end_char": 6703, "source": "regex", "metadata": {"statute": null}}, {"text": "section 355", "label": "PROVISION", "start_char": 8206, "end_char": 8217, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 12585, "end_char": 12595, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 13748, "end_char": 13757, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 14320, "end_char": 14331, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 14348, "end_char": 14357, "source": "regex", "metadata": {"statute": null}}, {"text": "[1973] 1 SCR 313", "label": "CASE_CITATION", "start_char": 14409, "end_char": 14425, "source": "regex", "metadata": {}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 14445, "end_char": 14479, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1975_1_151_168_EN", "year": 1975, "text": "KRISHNA CHANDRA QANGOPADHYAYA ETC.\n\nUNION OF INDIA & QlRS.\n\nApril 18, 1975\n\n[A. N. RAY, C. J., K. K. MATHEW AND V. R. KRISHNA IYER]\n\nConstitution of India-Seventh Schedule, List I Item 54, List Tl Item 23.\n\nMines and Minerals (Regulation and Development) Act, 1951---!Section 15-\n\nihar Land Refonns Act 1950 [Section 10(2)]-Bihar Minor Minerals Concession Rules, 1964 [Rule 20(2)).\n\nInterpretation of Statutes-Validation Act-Retrospecti've effect-Delegated Legislation-Legislation by incorporation.\n\nThis Court in the case .of Baij Nath Kedia declared the seoond proviso to secti.on 10(2) of the Bihar Land Reforms Act,\n\n1950. unconstitutional on the ground that the Bihar Legislature had no jurisdiction to enact it and that Parliament alone was competent to legislate.\n\nThs Court a1'o held that rule 20(2) framed by the Bihar Government as delegate of the Parliament under section 15 of the Mines and Minerals (RegUlation and Development) Act Of 19 57 was unconstitutional since the rule making power 'Conferred by .section 15 of the Central Act did not contemplate nlteration of\n\nterms of leases already in existence before the Act was passed.\n\nSecond proviso to section 10(2) of the Bihar Land Reforms Act reads as under :\n\n\"Provided further that the tenns and conditions of the said lease in regard to minor minerals as defined in the Mines and Mi..., erals IRegnlation and Development) Act, 1957 (Act LXVII of 1957) shall, in &0 far as they are inconsistent with the rules of that Act, stand substituted by the corresponding terms and conditions by those rules and if further ascertainment and settlement of the terms will become necessary then necessary proceedings for that purpose shall be undertaken by the Collector.\"\n\nRule 20(2) authorises the alteration of the terms of leases which were in exiStence before the Central Act was passed.\n\nAfter the judgment in Baij Nath Kedia's case was delivered, the Parliament passed a Validation Act of 1969.\n\nSection 2 ( 1) and (2) of the Validation Act reads as under :\n\nlSl\n\n11.\n\n\"21(1). The laws specified in the Schedule shall be and shall be G deemed always to have been, as valid as if the provisions contained therein had been enacted by Parliament.\n\n2(2). Notwithstaning any judgment, decree or order of any court, all actions taken, things done, rules made, notifications issued or purported to have been taken, done, made or issued and rents or royalties realised under any such laws shall be deemed to have been yalidl_Y take!1, done, made, . issued or realised, as the case may be, as H if tbIS section had been 1n force at all material times when such notifications, were issued, or rents or royalties were realised, and no suit or other prceedings shall be maintained or continued in any court for the refund of rents or royalties realised under any such laws.\"\n\n\\ (q the Schedule to the said Validation Act, section 10 of the Bihar Land Reforms Act, 1950 and sub-rule (2) of Rule 20 of the Bihar Minor Mineral\n\nfoneellsion Rules, 1%4, inter alia, have been set out.\n\nIO SC/75-ll\n\nSUPREME COURT IUlPOR.TS 0975] SUPP. S.C.lt.\n\nIn the present petition under Article 32, validity of the Validation has been challenged by the petitioner on the grounds Act\n\n.\"If. a law is void as being pa&Sed by an incompetent Legislature) validation by a subsequent Act passed by a competent J..egislature can only be effected by the subsequent Jaw enacting the provisions of the old Act expressly or by incorporation. It cannot be done by a competent Legislature, laying down in the subsequent Act that the former B Act passed by the incompetent Legislature is deemed to be valid.\n\nNo liability to levy rent or royalty can be created retroactively without wo. lear stages or ste~: firstly, a law must be enacted creating the habihty; next, such provISion should be made retrospective. This two-stage procedure is absent in the statute under attack and therefore the purpose, whatever it be, has misfired.\"\n\nThe respondent contended that the Parliament adopted the form of incorporation referencially to a State Act and subordinate legislation given in the\n\nscheule to the Validation Act.\n\nThe Validation Act was a product of the Parliament. It was not a case of Parliament simply validating an invalid law passed by the Bi bar Legislation.\n\nThe Parliament re-enacted the Validation Act with retrOipective effect in its own right adding one Central Act to the Statute Book.\n\nDismissing the appeal,\n\n. HEID : (i) Incorporation of Acts is permissible in the absence of other disabling factors.\n\nThe Bihar Act qua the Bihar Legislature could not be resuscited by Parliament conferring such power through a law, as far as\n\nprovisions of second proviso to section 10(2) of the Bihar Land Reforms Act is concerned.\n\nAs far as rule 20(2) is concerned, the position is different since that is a rule framed by Parliament through its delegate the State Government although rule was ultra vires being in excess of the Pomtr conferred by section 15 of the Central ACt.\n\nThe Parliament had, therefore, passed a Validation Act to validate the void provisions of Bihar Land Reforms Act and the ultra vires sub-rule 2 of rule 20 as well as action taken and things done in connectiqn therewith.\n\nThe power of a Legislature to pass a law obviously includes the power to pass it retrospectively.\n\nEarlier, the Bihar Act or Rules framed by the State Government under the Central Acts do not have to bo valid. for sustaining the Validation Act made by the Parliament.\n\n[162E-F, !63B]\n\n(ii) What is the intention of Parliament is mainly to be gathered from the language used, tested by approved cannons of construction.\n\nUnhappy wording, infelicitious expression of imperfect or inartistic drafting may not necessarily defeat for that reason alone the obvious object of the validating law and its retrospective content.\n\nThe real question is whether the Court -can speculate on presumed intent of the Parliament and rewrite that object with implicit sense.\n\nWe listen largely to th~ language of t.he Statut~ but whe~. as here clearing up of marginal obscunty may make interpretation surer if light fr0m dependable sources were to. beam in, the Cou~ may see.k such aid.\n\nIn the instant case, we are satisfied that the Parhament desired to validl!te retrospectively what the Biha! legislatioi:t had. ineffectually attempted.\n\nIt has used words plain enough to 1mplement its obJect and, therefore, the va1idating Act as well as the consequential levy are -?Ood. ule 20(2) of the Mineral Concession Rules stands on an assured footing.\n\nThis sub-ri:te has been made by the Bihar Government purely as a delegate of Parhament.\n\nTherefore, Parliament could validate it and has done so.\n\n[166AB, 1561-I]\n\n(iii) Under our scheme of distribution .of. the legislative P?Wers, parti~ cularly when subjects of national and prov1nc1al .concern ae 1nvolve.d, an and the States a lesser role, the present case of mines and minerals being an .instance in point.\n\n[155CD]\n\n(iv) The impugned legislation, levy and other actions are good.\n\n[168B]\n\nKRISHNA cliANDRA v. UNION (Kl'ishna Iyer, !.) 133\n\ni ORIGINAL JURISDICTION : Writ Petitions Nos. 357 to 359 of A 1970.\n\nPetitions under Art. 3.2 of the Constitution of India,\n\nA. K. Sen, P. K. Chatterjee and G. S. Chatterjee for the petitioners.\n\n L. N. Sinha/ Solicitor General of India, S; N. Prasad, R. N. Sach- B lhey, and M. N. Shroff, for respondent no. 1.\n\nS. K. Sinha and K. K. Sinha, for respondent Nos. 2-5 (In W.P.\n\nNo. 359/70).\n\nL. N. Sinha, Solicitor General of India and U. P. Singh, for re'- pondent no. 2. (in W.P. No. 357 /70 .\n\n.I L. N. Sinha, Solicitor General of India and D. Goburdhan, for respondent Nos. 2-4.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-The central issue in these petitions deals with the question whether a statute and a rule earlier declared by the Cc>urt unconstitutional or otherwise invalid, can be retroactive through fresh validating legislation enacted by the competent Legislature. More pointedly, the constitutionality of r. 20(2) framed by the Bihar Government under s. 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (Act LXVII of 1957) (for short, the Central Act) and the second proviso to s. 10(2) of the Bihar Land Reforms Act, 1950 (for brevity, the Bihar Act) has been challenged on various grounds in the petitions, a validating statute by Parliament\n\ntransforming them into Central legislation, as will be presently explained. The subject of the litigation is minor mineral~ and the right of the petitioners adversely affected by the impugned legislation, is to quarry stones etc., on the sirength of leases granted to them by erstwhile proprietors whose ownership vested in the State by virtue of the Bihar Act.\n\nBy the combined operation of the second proviso to s. 10(2) of the Bihar Act and r. 20(2) (framed by the State Government) of the Bihar Miner Mineral Concession Rules, 1964 (hereinafter called the Rules) the petitioners were called upon to pay certain rents and royalties in respect of mining operations, but the power of the State, clothed by these provisions, was put in issue in the first round of litigation by lessees of quarries, which culminated disastrously against the State in Baij Nath Kedia v. State of Bihar( 1 ). This Court, in that case, held that the Bihar Legislature had no jurisdiction to enact the second proviso to s. 10(2) of the Bihar Act, because it went further to hold that s. I 5 of the Central Act, read with s. 2 thereof, had appropriated the whole field relating to minor minerals for Parliamentary legislation. This Court proceeded to lay down that the second sub-rule, added by the Notification dated December 10,\n\n1964 to r. 20 of the rules did not affect leases in existence prior to the enactment of the rules.\n\nThe upshot of the decision was that the\n\n(') [19 70] 2 SCR 100.\n\nA action taken by the Biha.r Government in modifying the terms and conditions of the leases which were in existence anterior to the rules and the levy sought to be made on the strength of the amended Bihar Act and rule were unsustainable.\n\nThereupon the State persnaded Parliament to enact the validation Act of 1969 with a view to remove the road-blocks which resulted in the decision in Kedia's Case(').\n\nB The preamble and the short Act (11ow impugned) provide thus\n\n\"An Act to validate certain provisions contained in the Bihar Land Reforms Act, 1950, and the Bihar Minor Mineral Concession Rules, 1964, and action taken and things done in connection therewith... \"\n\nC Section 1 gives the title of the Act. Section 2 of the Act runs thus • -\n\n\"2. Validation of certain Bihar State laws and action taken and things done connected therewith.\n\n( 1) The laws specified in t11c Schedule shall be and shall be deemecl always to have been, as valid as if the provisions contained therein had been enacted by Parliament.\n\n(2) Notwithstanding any judgment, decree or order of any court, all actions taken, things done, rules made, notificatious issued or purported to have been taken, done, made or issued and rents or royalties realised under any such laws shall be deemed to have been validly taken, done, made, issued or realised, as the case may be, a~.if this section had been in force at all material times when such action was taken, things were done, rules wen; made, notifications were issued, or rents or royalties were realised, and no suit or other proceedings shall be maintained or continued in any court for the refund of rents or royalties realised under any such laws,\n\n(3) For the removal of doubts, it is hereby declared that nothing in sub-section (2) shall be construed as preventing any person from clainling refund of any rents or royalties paid by him in excess of the amount due from him under any such laws.\"\n\nG In the Schedule, section 10 of the Bihar Land Reforms Act, 1950\n\n(Bihar Act XXX of 1950), as amended by the Bihar Land Reforms • (Amendment) Act, 1964 (Bihar Act IV of 1965) and by the Bihar Land Reforms (Amendment) Act, 1965 (Bihar Act VI of 1965), and two other sections, namely, sections 10-A and 31, of the Bihar Land Reforms Act, 1950, as amended by the various amending Acts, a.re mentioned. Sub-rule (2) of Rule 20 of the Bihar Minor Mineral H Concession Rules, 1964, as inserted by the Bihar Minor Mineral\n\nConcession (First Amendment) Rnles, 1964, published under the Bihar Government Notification No. A/MM-109964 (pt.) 7700/M, dated the 19th December, 1964, in the Gazette of Bihar (Pt. JI), dated the 30th December, 1964 is also mentioned therein.\n\n(') [1970] 2 S.C.R. 100.\n\nKRISHNA CHANDRA v. UNION (Krishna Iyer, J.) 155\n\nThe legal question canvassed before us is as to whethe~ the Amend- A ing Act in question has been an exri:ise in fullliy because of an uncoIIStitutional essay and foggy drafting or has achieed he P':'rpose\n\nstt by Parliament which is transparent from the legislative h1st?ry.\n\nShri A. K. Sen, counsel for the petitioner, has turned the focus . mllinly\n\nOr\\ one or two deficiencies in the en.actment. of the Act. by. Parliament.\n\nShri Sen's submission is that notwithstanding the validating measure B the ri$ht claimed by the Stat~ to alter. the terms of the lease or to impose al new levy has not validly acquued.\n\nCase History c Mines and minerals, as topics of legislation, fall under the Union and the State Lists.\n\nUnder our scheme of distribution of legislative powers, particularly when subjects oJ' national and provincial concern are involved, an inter-locking arrangement is providd whereby the Union has a dqminant say and the States a lesser role, the present case of mines and minerals being an instance in point. The relevant entries .in the VII Schedule are item 54 of List I and item 23 of List II.\n\nThe latter is expressly made subject to the provisions of List I with respect to regulation and development under the control of the Union\n\nand the Union's powers extend to regulation ancl development of mines ana minerals 'to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest'. In the exercise of the above power, the Union Parliament passed the Central Act which covered not merely the field of major minerals but also occupied the area of minor minerals, as is evident from ss. 15 and 16 of th-o Act. (The necessary declaration visualised in Entry 54 of List 1 is made by sec. 2 of the Central Act). Although the. legis1ation was made by Parliam.ent, s. 15 conferred power on the State Government as its delegate to make. rules in respect of minor minerals.\n\nThe Bihar State which had on its statute book a land reforms law, sought to acquire control over mines and minerals and in that behalf added a second proviso to s. 10(2) which reads thus (Bihar Act 4/65) :\n\n\"Provided further that the terms and conditions of the G said lease in regard to minor minerals as defined in the Mines and Minerals (Regulation and Development) Act, 1957 (Act LXVII of 1957) shall, in so far as they are inconsistent with the rules of that Act, stand snbstituted by the corresponding terms and conditions by those rules and if further ascertainment and settlement of the terms will become necessary then necessary proceedin~ for that purpose shall be H llndertaken by t11e Collector.\"\n\n. The apparent legal result was that the Staie Government could 'hape_ the terms an.d conditions of the leases granted by the quondam\n\nproprietors and this was done by framing rules unde.r s. 1 S of the Central Act as the delegate of Parliament. Faced with a demand for\n\nA higher levy put forward by the State, which had been .armed by the amendment of the Land Reform& Jaw. and the, rules under. s .. 15 of the Central Act, mineral pr!JSpeclo~ and quarriers moved. petitions under Art. 226 of the Constitution. in the Patna High Court, . Althoiigb those petitions were dismissed, appeals \\'/ere carried to this Co1Jft which, as earlier .stated, endedi in success. It is important to note the B re&sons which weighed with this Court in striking down the two pieces of legislation, one amending the B.ihar Act and the other, adding. a sub-rule under the Central Act, so that an insight into the infirmities of the said legislations may be gained and the need and object of the validation appreciated.\n\nHidayatnllah, C. J. in Baij Nath Kedia( 1 ), speaking for the Court, C pointed out that the declaration contemplated by Entry 54 of List I was contained in s. 2 of Act 67 /57 and thus the Central Government assumed control over regulation of mines and mineral development to the extent provided in the Central Act.\n\nSince s. 15 of the Central Act went on to state that the State Government may IDJlke rules for regulating the grant of prospecting licences and mining leases in res- ' _.n pect of minor minerals' and for purposes connected therewith, the whole subject of legislation regarding minor mineral was also co\"ered by the Central Act and, to that extent, the powers of the State Legislature stood excluded. No scope was therefore left for the enactment of the second proviso to s. 10(2) of the Bihar Act whiCh related to mining and minerals and was for that reason ultra vires. The fatei of . E sub-rule 20(2) was no better, according to the learned Chief Justice.\n\nVested interests cannot oo taken away except by law made by a competent Legislature.\n\nSince the Bihar Legislature had lost power to legislate about minor minerals, Parliament was the sole source of power in this behalf. Rule 20(2) of the Bihar Minor Minerals Concession Rules, 1964 was ineffective for modifying leases granted ear- Jier. It could not derive snstenance on the second proviso to s., 10(2)\n\n'' F of the Bihar Act which had been held ultra vires not could legislative support be derived from s. 15 of the Central Act since the rnlemaking power conferred by that provision did not contemplate alteration of terms of leases already in existence before the Act was passed. ·\n\nL ./• The direct lessons from Kedia( 1) were drawn by Parliament and G suitable legislative action taken, according to the Solicitor General, resulting in the present validation Act.. So much so the purpose of the enactment was obvious, the law laid down by this, 'Court was obeyed and the resultant refereutia1 legislation must therefore be interpreted to further and fulfil-not to .frustrate or foil'\"-the. intendment of retroactive validation of earlier inoperative legislative[ and executive\n\nH action taken by the Bihar State.\n\nStatutory conspectusand meanlniJ :\n\nSubstantially this history of the impugned Act is not under serious 'challenge. The vital conflict is as to whether,• whateve~ may have heen\n\niri the mirid of Parliament, the Court can speculate on presumed intent\n\n\n...\n\nKRISHNA CHANDRA v. UNI(!N. (Krishna Iyer, /.) 151\n\n.; i~!\n\nand read that object with implicit sense. According to Sri Sen, what A has be.en legislated has to be judged on the language !Bed MUch, in his' view; was hardly adequate to create power to vary the 'Ieaie( or cast liability to pay larger rents and royalties retrospectively. · ·\n\nWe listen largely to the language of the statute but where, as herel clearing. µp of marginal obscurity may make interpretation .surcc if B light .from . dependable sources were to beam in, the Court may seek such aid. What has been described as the sound system of constroction, excluding all but the language of the text and the dictionary as the key, hardly holds the field especially if the enactment has a fiscal or other mission, its surrounding circumstances speak and its history unfolds . the mischief to be remedied.\n\nThe Court, in its comity with. the Legislature, strives reasonably to give meaningful life and avoid cadavcric consequence. We have set out the story of the rebirth, as it were, of thelaw of minor mineral royalty levy to drive home the propriety of this method--of approach. No doubt, there is some remissness in the drawing up of what professes to be a valioating law and\n\nthe neglected art of drafting bills is in part the reason for subtle length of submissions where better skill could have make the sense of the statute luscent and its validity above-board.\n\nInformed by a realistic idea of shortfalls in legislative. drafting and of the social perspective of the statute but guided primarily by what the Act has \\Said explicitly\n\nor by necessary implication we will examine the meaning and its impact on coun.el's contentions.\n\nThe main lJTOpositions of law\n\nKeditis Case(') has held void both proviso 2 to s. 10 of the Bihar Act and Rule 20(2) made under the Central Act. Shri A. K.\n\nSen did not dispute the legislative competence of Parliament, by specific enactment, to validate retroactively otherwise invalid legislation or ineorporate into a Central Act a void State legislation since mines and m1nerals, minor and major, had been taken over by the Centre. tlis chief submission was that the well-known legislative mechanics to resurrect statutorily earlier Acts or rules declared dead by Court had !'ct been. dopted hee, so muc? so the fi<:tion _introduced by the deemmg provIS10n has failed to achieve what 1s bemg claimed by the State as the legislative object. Mr. Sen's proposition, shortly stated, is :\n\n\"If a law is void as being passed by an incompetent Legislature, validation by a subsequent Act passed by a <; ompetent Legislature can only be effected by the subsequent law enacting the provisions of the old Act expressly or by incorporation. It cannot be done by a competent Legislature laying down in the subsequent Act that the former Act passed by the incompetent Legislature is deemed to be valid.'' ·\n\nWhat. is moot is not the proposition but its application to our legislative situation. · ' ·\n\n\n158 SUPIU!lllB COURT RBPORTS [1975) SUPP. s.c.R.\n\nA Reliance for this proposition was placed, inter alia on Jaora Sugar Mills v. State(') ; Jawaharmal v. State of Rajasthan(2) ; Shama Rao\n\nv. Pondicherry(3 ) and Gwalior Rayon Mills v. Asstt. Commissioner, S.T. ( 1). To take the last case first, we may state that the problem tackled there related to excessive delegation and abdication of legislative power and did not bear upon the issue of legislation by reference B or incorporation. Of course, there is consideration of S hama Rao ( ')\n\nin the judgment of Mathew J., but it is difficult to make out how the observations to which our attention was invited bear upon tlie issue beiore us.\n\nThe learned Judge's containment of the principle in Shama Rao(\") C with which we respectfully concur, may be set out here (p. 1679) :\n\n\"We think that the principle of the ruling in [1967] 2 SCR 650 (viz., Sha ma Rao) must be confined to the facts of the case, It is doubtful whether there is any general principle which precludes either. Parliament or a State legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament and incorporating them in its legislation. At any rate, there can be no such prohibition when the adoption is nqt of the entire corpus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose.\"\n\nThe kernel of Gwalior Rayon (4) is the ambit of delegation by Legislatures, and the reference to legislation by adoption or incorporation supports the competence and does not contradict the vires of such a process-not an unusual phenomenon in legislative systems nor counter F to the plentitude of powers constitutional law has in many jt1risdictions conceded to such instrumentalities clothed with plenary authority. The Indian legislatures and courts have never accepted any inhibition against or limitation upon enactment by incorporation, as such.\n\nThe dispute is not whether Parliament can legislate into validity a State Act which is outside the State List If s. 2 of the impugned G Act merely validates invalid State law by Parliament's action, it is doomed to fail.\n\nIt is for the Constitution, not Parliament, to confor competence on State Legislatures.\n\nThe observations in Jaora Sugar Mills(') on which Shri A K. Sen laid great stress, silence the question :\n\n\" .... If it is shown that the impugned Act purports to do nothing more than validate the invalid State statutes, then of course, such a validating Act would be outside the legis-\n\n(') [19661 1 S.C.R. 513, 531.\n\n(')[ 1966]1 S.C.R. 890, 901. 9-04.\n\n(') [19671 2 S.C.R. 650, 662.\n\n(4) A.lR 1974 S.C. 1660, 1681.\n\nKRISHNA CHANDRA v. UNION (Krishna Iyer, J.) 159\n\nlative competence of Parliament itself.\n\nWhere a topic is not A included within the relevant List dealing with the legislative competence of the State Legislatures, Parliament, by making a law, cannot attempt to confer such legislative competence on the State Legislatures.\"\n\nIt is a far constitutional cry from this position to the other proposition that where Parliament bas power to enact on a topic actually legislates within its competence but, as an abbreviation of drafting, borrows into the statute by reference the words of a State Act not qua State Act but as a convenient shorthane, as against a longhand writing or all the sections into the Central Act, such legislation stands or falls on Parliament's legislative power, vis-a-vis the subject viz.,\n\nmins and minerals.\n\nThe distinction between the two legal lines may sometimes be fine but always is real. Jaora Sugar Mills (supra) illumined this basic difference with reference to s .. 3 of the Act challenged there, by observing :\n\n\" ...... What Parliament has done by enacting the said section is not to validate the invalid State statutes, but to make a law concerning the cess coveree by the said Statutes and to provide that the said law shall come into operation retrospectively.\n\nThere is a radical difference between the two positions.\n\nWhere the Legislature wants to validate an earlier Act which has been declared to be invalid for one reason or another, it proceeds to remove the infirmity from the said Act and valiCates its provisions which are free from any infirmity.\n\nThat is not what Parliament has done in enacting the present Act.\n\nParliament knew that the relevant Statutes were invalid, because the State Legislatures did not possess legislative competence to enact them.\n\nParliament also knew that it was fully competent to make an Act in respect of the subject-matter covered by the said invalid State Statlltes.\n\nParliament, howew.r, decided that rather than make elaborate anc long provisions in respect of the recovery cf the cess, it would be more convenient to make a compendious provision such as is contained in s.\n\n3. The pla)n meaning of Section 3 is that the material and relevant provisions of notifications, orders and rules issued or made thereunder are included in Section 3 and shall be evcmed to have been included at all material times in it.\n\nIn othel words, what section 3 provides is that by its order and force, the respective cesses will be deemed to have been recovered because the provisions in relation to the recovery of the said cesses have been incorporated in the Act itself.\n\nThe command under which the cesses would be eeemed to have ben recovered would, therefore, be the .command of Parliament, because all the relevant sections, notifications, orders and mies have been. adopted by the Parliamentary statute itself.\"\n\nNb Parliamentary olllllipotence to re-draw Leislative Lists in the VII Schedule can be arrogated to confer on the State compe-\n\nA tence to enact on a topic where it is outside its Lists.\n\nBut if Parliament has e power to legislate on the topic, it can make an Act\n\nn the topic by any dlafting means, including by referential legislation.\n\nB The learned Solicitor General, in the course of his submissions mac!e it clear that he did not want to vindicate the levy by any validation of the invalidated portion of s. 10 of the Bihar Act. He based his case on the success with which Parliament had lcgislate<I' for itself, although adopting a shorthand form of incorporation referentially of a State Act and subordinate legislation given in the Schedule to the validation Act. He also made it clear that r.20(2) had nothing to do with the Bihar Legislature but was the product of C Parliamentary legislation by delegation in favour of State Government. Thus, in his view, the Parliament legislated for itself and statutorily adopted for itself the second proviso to s. 10 of the Bihar Act and the otherwise ultra vires sub-rule (2) of r. 20. If the reenacting technique adoptecl for the referential or incorporating legislation was insufficient in law, he failed.\n\nOtherwise, the Act and D rules referred to in the Schedule to the validation Act revived and became operational, retroactively.\n\nThere is force in the submission that taking a total view of the circumstances of the validation Act Parliament did more than simply validate an invalicl Jaw passed by the Bihar Legislature but did re-enact it with retrospective effect in its own right adding an amending Central Act to the statute book.\n\nE Shri A. K. Sen pressed passages from J awaharmal (supra) , but some care in scrutiny will reveal that Jawaharmal (supra) does not clash with Jaora Sugar Mills (supra).\n\nWe may briefly deal with that decision ancl explain it.\n\nArt. 255 of the Constitution insists on Presidential assent for certain Acts of the State Legislature, although subsequent assent is curatiV'e of F the infirmity caused by absence of previous assent. In Jawaharmal (supra), one of the points that fell for decision was the efficacy of a Legislative declaration that an earlier invalid Act (for want of Presidential assent) be deemed to be valid by re-enactment and subsequent assent of the Presic!ent to the second Act.\n\nThis would virtually mean that by the re-enacting device, Pres.idential assent coµlp be)iy-ssed\n\nby the Legislature, Negativing this submission, the Court 'opslrved, G with reference to the Rajasthan Act which attempted this unconstitutional exercise :\n\n\"In other words, the Legislature seems to say by Seetion 4 that even though Article 255 may not have. been complied with by the .earlier Finance Acts, it is competent to. pass Section 4 whereby it will prescribe that tbe. failur<: to .comply with Article 255 does not really matter. and the assent of the President to the Act amounts to this that th~ President also agrees that the_ Legislature is e!llpower~ to,.sa_y, that the infirmity resulting from non-compliance with Article 255 does not matter.\n\nIn our opinion, the Legislature is incompetent . to declare that . the failure !O comply. ;; yith,;- Article 255 is of no consequence; and, with respect,, tlH; : .. •.\n\n' -\n\nKRISHNA CHANDRA v. UNION (:Krishna Iyer, !.) 161\n\nassent of the President to such declaration also does not ; Jr.. $erve the purpose which subsequent assent by the President can serve unc!er Article 255 .. ,\"\n\nx x x x\n\n \". .we have tried s.4 as favourably as we can while appreciating the argument of the learned Advocate- General; but the words used in all the three parts of Section 4 are clear and unambiguous; they indicate that the Legislature thought that it was competent to it to cure, by its owu legislative process, the infirmity resulting from the non-compliance with Article 255 when it passed the earlier Finance Acts in question, and it was probably advised that such a legislative c!eclaration would be valid and effective provided it received the assent of the President.\n\nIn our opiniou, the approach aeopted by the Legislature iu this case is entirely misconceived.\n\nThe Legislature, no doubt, can validate an earlier Act which is invalid by rea- son of uon-compliance with Article 255 and such an Act may receive the assent of the President. which will make the Act effective.\n\nThe Legislature cannot, however, itself declare by a statutory provision that the failure to comply with Article 255' can be cured by its own enactment\n\neven if the said enactment received the assent of the Presi-·\n\ndent. In our opinion, even the assent of the President cannot alter the true constitutional position under Art. 255.\n\nThe assent of the Presic!ent cannot, by any legislative process, be deemed to have been given to an earlier Act at a time when in fact it was not so given.\n\nIn this context there is no scope for a retrospective deeming 'in regard to the assent of the President.\n\nIt is somewhat unfortunate that the casual drafting of Section 2 leaves the period covered by Act 11 of 1962 and the notification issued thereunder as unenforceable as before, and the. omnibus ane general provisions of Section 4 are of no help in regard to the said period.\"\n\nIn dismissing a similar contention based on Jawaharmal (supra), to challenge the identical statute with which we are here concerned, the Patna High Court observed, in Dlralbhum T & I Ltd. v. Union of : l] l11dia(1)'; · ·\n\n. \"In that case, the validating law merely c!eclared that the original invalid legislation was valid in spite of the contravention of Article 255 of the Constitution.\n\nIn the instant case, Parliament has not sought to declare that the failure to comply with the requirements of Article 255 of the Constitution is of no consequence.\"\n\nThe crncial demarcation between Jaora Sugar Mills (supra). and Jawahµrmal .(supra) is importa, nt and cannot be overlooked. The latter\n\n(') AIR 1972 Pat. 364, 373.\n\nA case dealt with a State Legislature ineffectually overcoming invalidity caused by absence of Presidential assent.\n\nValidation by a legislature must necessarily be of what it could validly have done and not of what someone else had to do.\n\nThe assent of the President could not be made up for by the validating process adopted by the legislature. So it was that Jawaharmal (supra) suffered from legislative incompetence a second time . .B\n\nIt is important to notice, however, that the alleged vice of the legislation in the present case relates to a radically different area.\n\nWhat is within the competence of Parlia, ment it seeks to do-validation by incorporation of a legislation on a topic within its purview. The device adopted of re-enacting by valic!ation is familiar to the Indian C draftsman as to his Anglo-American counterpart.\n\nWe have no doubt that incorporation of Acts is permissible in the absence of other disabling factors. It is one thing to say that retroactive validatk1n\n\nby a competent legislature is impermissible; it is another to contend that there has not been a valid execution of this process or rather Parliament has not, in the present case, done what the draftsman\n\n~;· ought to have done to effectuate the ostensible purpose of creating D a new power to levy\" royalty anc! to alter the terms of the mining leases and then to give such newly created liability anterior effect.\n\nThe controversy now shifts to the effectiveness or otherwise of the legislative device in achieving retroactive validation.\n\nWe have already noticed that the second proviso to s.10(2) of the Bihar Act and sub-r.(2) of r.20 of the Mineral Concession Rules, 1964 were void, as held by this Court.\n\nWe have therefore to treat them as non est.\n\nWe have already held that the Bihar Act qua Bihar Legislation coulc! not be resuscitated by Parliament conferring such power through a law.\n\nThe position may be different so far as rule 20(2} is concerned since that is a rule framed by Parliament through its F delegate, the State Government, although the rule itself being in excess of the power conferred by s.15 of the Central Act was ultra vires.\n\nIn this invalidatory situation, Parliament passed an Act to validate the void provision of the Bihar Land Reforms Act, 1950 and the ultra vires sub-rule of r.20 of the Mineral Concession Rules as well as the action taken and things c!one in connection therewith.\n\nThe Act is itself short and consists of two sections, of which the\n\nlatter is the only important one. It validates the laws specified in the schedule by a deeming device.\n\nSecondly, it brings into force, back-dating it, all action taken, rents and royalties realised and rules mac!e 'notwithstanding any judgment, decree or order of any Court'.\n\nThe problem before us is whether the Act has achieved its purpose of creating retrospective liability for rents, royalties etc: .• and validating retrospectively the impugned provisions of the Bihar Act and the Mineral Concession Rules.\n\nShri A K. Sen's criticism has to be noticed in this background; for he urges that in the light of the rulings of this Court no liability to levy rent or royalty can be created retroactively without two clear stages or steps : firstly, a law must be enacted creatin~ the liability; next, such provision should be made retrospective.\n\nThis twe>-stage procedure is absent in the statute unc!er attack and therefore the pur-\n\n- ·+ ; '\"'\"' '*~\n\nKRISHNA CHANDRA v. UNTO'<· (Krishna Iyer, J.) 16l\n\npose, whatever it be, has misfired, argues Mr .. Sen. In _plain terms A the present case raises the question of enactment by reference and incorporation. It is correct to contend that curative statutes and validating exercises, unless the process is explicit enough and permissible otherwise, cannot be given ex post facto effect by courts. What is the intention of Parliament is mainly to be gathered from the Janguage used, tested by approved canons of construction. B The profusion of precedents touched upon at the Bar leaves us with a few which were stressed as having direct pertinence to the points in debate.\n\nThe power of a legislature to pass a law obviously ,. includes the power to pass it retrospectively.\n\nMinor minerals, as explained already, being a topic withdrawn and confided to Parlia-\n\nC ... ment for legislation, the validating Act cannot fail for incompetenc~ .\n\nBut before a levy expost facto is mac!e, the legislation must first create J the fiscal 'liability and then project it retrospectively.\n\nThis is the broad trend of Sri A. K. Se'n's submission.\n\nHe relies heavily on Kamrup( 1) to urge that a legislation ca)lnot by a simple 'deeming' device render valid what is unconstitutional.\n\nThe following observations were emphasized by counsel (p. 580 D\n\nof the report) :\n\n\"It is to be seen that the core of Assam Act' 21 of 1960 is the deeming provision of s.2 under which certain lands are deemec! to be acquired under the earlier Act.\n\nAs this deeming provision is invalid, all the other ancillary provisions fall to the grounc! along with it.\n\nThe later Act is entirely dependent upon the continuing existence and validity of the earlier Act.\n\nAs the earlier Act jg, unconstitutional and has no legal existence, the provisions of Act No. 21 of >\n\n1960 are incapable of enforcement and are invalid.\"\n\nThe ratio is apt to be misunderstood for, in its essence, the judg- :r - men! merely holds that where the later Act is entirely depenc!ent\n\nCl upon the valid continuance of the earlier Act, which has been held unconstitutional, the deeming provision cannot produce the desired effect. The learned Solicitor General, however, argues that the situation in the present case is altogether different.\n\nThe earlier Bihar Act or the rules framed by the State Government under the Act c!o\n\nG not .have to be valid or. sust.aining the amending Act made . by Parliament.\n\nThe cnstitul!onahty of the earlier law has not to be '\n\nps1ed for the survival of the Central amending Act.\n\nIn this subm1Ss1on the learned Solicitor General is right and so the proposition in Ka, mrup( 1) is inapplicable here.\n\nIn Hari Singh( 2 ), Kamrup(') was approved but there is no\n\nqarre! over. the correctness of the proposition there, its application H bemg mept m the context of te present case.\n\nHowever, Ray J. (as he then was), made certam observations which were pressed before us by Mr. Sen :\n\n(1) [1968] l SCR 561.\n\n(') [1973] I SCR 515.\n\nA \"The ratio is that the 1960 Act has no power to enact that an acquisition made under a constitutionally invalid Act was valid.\n\nThe 1960 Act did not stand independent of the 1955 Act.\n\nThe deeming provision of the 1960 Act was that land was deemed to be acquired under the 1955 Act. If the 1955 Act was tlllconstitutional, the 1960 Act i could not make the 1955 Act constitutional.\"\n\nWith great respect we agree with the position but, as earlier stated, the statutory complex confronting us is something different.\n\nIn the present case, the Bihar Legislature is not legislating into validity, by a deeming provision, what has been declared ultra vires by the Court.\n\nIt is Parliament, whose competency to legislate on the topic in ques- C tion is beyond doubt, that is enacting the 'deeming' provision. It follows that Hari Singh (supra) also cannot salvage the appellant.\n\nWe reach the twilight of legislative area when we move into West Ramnad Electric Distribution Co. Case(') which also dealt with a validating Act.\n\nThe Madras Electricity Supply Undertakings Act, 1949 clothed the State with power to acquire Electricity Supply D Undertakings.\n\nThe validity of the said Act was challenged and this Court held the law ultra vires.\n\nIn consequence, the Madras Legislature passed Madras Act 29 /54 which incorporated the impugnoo provisions of the earlier Act of 1949 and purported to validate the action taken under the earlier Act.\n\nThe affected appellant assailed the new Act to the extent to which it purported to validate acts done E under the earlier Act of 1949 which had been declared inoperative by the Court.\n\nThe facet of that decision which relates to the point under discussion before us establishes that validation, with retrospectivity super-added, is perfectly competent for the Legislature. Gajendragadkar, J. (as he then was), observed:\n\n\"The argument is that there is no specific or express provision in the Act which makes the Act retrospective and so, s.24, even if it is valid, is ineffective for the purpose of sustaining the impugned order by which possession of the appellant concern was obtained by the respondent.\"' x x x x \"Before dealing with this argument, it would be necessary to examine the broad features of the Act and understand its general scheme.\n\nThe Act was passed because the Madras Legislature thought it expedient to provide for the acquisition of undertakings other than those belonging to and under the control of the State Electricity Board constituted under section 5 of the Electricity (Supply) Act, 1948 in the State of Madras engaged in the business of supplying electricity to the public. It is with that object that. appo priate provisions have been made by the Act to provide for the acquisition of undertaki; igs and to lay c!o.wn te principles for paying compensation for them. It 1s qmte clear that the scheme of the Act was to bring within the purview of its material provisions undertakings in respect ---·\n\n(') [1963) 2 S .C.R. 747.\n\n- .\n\n--~--.;.\n\n•. , KRISHNA ClfAi--'DRA v, UNION (Krishna Iyer, J,) 165\n\nof which no action had been taken under the earlier Act A and those in respect of which action had been so taken,\"\n\nx x x x\n\n\"It is thus clear that the Act, in terms, is intended to apply to undertakings of which possession had already been taken, ancl that obviously means that its material and operative provisions are retrospective, Actions taken under the provisions of the earlier Act are deemed to have been taken under the provisions of the Act and possession taken under the said earlier provisions is deemed to have been taken under the relevant provisions of the Act This retrospective operation of the material provisions of the Act is thus writ large in all the relevant provisions and is an essential part of the scheme of the Act.\n\nTherefore, Mr, Nambiar is not right when he assumes that the rest of the Act is intendecl to be prospective and so, section 24 should be construed in the light of the said prospective character of the Act.\n\nOn the contrary, in construing s.24, we have to bear in mind the fact that the Act is retrospective in operation and is intended to bring within the scope of its material provisions undertakings of which possession had already been taken.\" ·\n\nx x x x\n\n\"The third part of the section provides that the statutory declaration about the validity of the issue of the notification would be subject to this exception that the said notification should not be inconsistent with or repugnant to the provisions of the Act In other words, the effect of this section is that if a notification bad been issued properly under the provisions of the earlier Act and its validity could not have been impeached if the said provisions were themselves valicl, it would be deemed to have been validly issued under the provisions of the Act, provided, of course, it is not inconsistent with the other provisions of the Act The section is not very happily worded, but on its fair ancl reasonable construction, there can be no doubt about its meaning or effect. It is a saving and validating provision and it clearly intends to validate actions taken under the relevant provisions of the earlier Act which was invalid from the start. The fact that s, 24 does not use the usual phraseology that the notifications issued under the earlier Act shall be deemed to have been issued under the Act, does not alter the position that the second part of the section bas and is intended to have the same effect.''.\n\nx x x x\n\n\"We have no doubt that s.24 was intended to validate actions taken uncler the earlier Act and on its fair and reasonable construction, it must be held that the intention has been\n\n166 SUPRl!ME COURT REPORTS [1975) SUPP. s.c.11.\n\nA carried out by the legislature by enacting the said section.\n\nTherefore, the argument that s.24 even if valid, cannot effectively validate the impugned notification, cannot succeed.\"\n\nThe ratio of West Ramnad (supra) is clear. The Legislature can retrospectively validate what otherwise w.as inoperative law or action.\n\nB Unhappy wording, infelicitous expression or imperfect or inartistic drafting may not necessarily c!efeat, for that reason alone, the obvious object of the validating law and its retrospective content.\n\nIn fairness to counsel for the appellant, we must state that the proposition in Jadao Bahuji's Case(') about the powers of the Legislature, including within itself the power to make retrospective C laws, was not canvassed. Indeed, to urge that Indian Legislatures 'were subject to strange and unsual pohibition against retrospective legisja, tion' is as late as it is presumptuous. However, !adao Bahuji(1) itself contained some valuable observations of relevance for this case which we may here extract (p. 640) :\n\n\"Retrospective laws, it has been helc!, can validate an Act, which contains some defect in its enactment. Examples of Validating Acts which rendered inoperative, decrees or orders of the Conrt or alternatively made them valid and effective, are many. In Atiqux Begum's Case [(1940) FCR 110], the power of valic!ating defective laws whe held to be ancillary and subsidiary to the powers conferred by the Entries and to be included in those powers.\"\n\nWe have said enough to establish that no snbstantial objection to the Act in question can be pressed on the strength of incompetence of inoperative retroactivity. That is why the appeUant's submission was switched largely . on the gross inadequacy of the language of s. 2 of the impugned Act to confer power en the State Government to validate the rule 20(2) or s.10 of the Bihar Act. To be precise, the highlight of Sri Sen's arguments runs thus:\n\n\"The core of the Act on which the State Government might issue rules is s. 15 of the Central Act, 1957. Section 15 of the 1957 Act did not authorise the State Government to enact r.20 for modifying the existing leases as was found in the earlier case. The present s.2 does not confer any such power uor does it enact the provisions of the Bihar Act to this effect. It only provides that the Bihar Act shaU be considered to be valid as if it were passed by Parliament. Section\n\n2 being a core of the present Act anc! that being invalid and being found not to amount to any incorporation of the Bi)lar Act action takeA under r.20 or r.20 itself passed under the ~Id Act would still remain void and inoperative.\"\n\nIn this connection, considerable emphasis was placed on Jawaharmal (supra) and on Shama Rao (supra).\n\n(') [1962] I S.C.R. 633.\n\n. -\n\n' -\n\nKRiSHNA CHANDRA v. UNION (Krishna Iyer, J.) 167\n\nPassing reference was. also made. to Jagannath v. Authorized A officer Land Reforms (1).\n\nThe first of these decisions Jawaharmal (supra) seemingly supports Mr. Sen's proposition, although the others fall wide off the mark. In West Ramnad (supra), referred to by counsel this Court made some observations which have relevance to the topic under discussion.\n\nB There a legislative validation, retrospective in operation, was challenged. The latter legislation used the expression 'hereby declared'. The observations made by this Court in that connection are instructive and may be extracted:\n\n\"The second part of the section provides that the notifications covered by the first part are declared by this Act to have been validly issued ; the expression 'hereby , declared' clearly means 'deC!ared by this Act' and that shows that the notifications covered by the first part would be treatec! as issued under the relevant provisions of the Act and would be treated as validly issued under the said provisions. The third part of the section provides that the statutory declaration about the validity of the issue of the notification would be subject to this exception that the saic! notification should. not be inconsistent with or repugnant to the provisions of the Act. In other words, the effect of this section is that if a notification had been issued properly under the provisions of the earlier Act and its validity could not have been impeached if the said . provisions were themselves valic!, it would be deemed to have been validly issued under the provisions of the Act, provided, of course, it is not inconsistent with the other provisions of the Act.\n\nThe section is not very happily worded, but on its fair and reasonable construction, there can be no c!oubt about its meaning or effect. It is a saving and validating provision and it clearly intends to validate actions taken under the relevant provisions of the earlier Act which was invalid from the start. The fact that s.24 does not use the usual phraseology that the notification issued under the earlier Act shall be deemed to have been issued uncer the Act, does not alter the position that the second part of the section has and is intended to have the same effect.\"\n\nIt follows that, variant phraseology apart, the meaning and intent must be . unmistakale. In the. present case we are fully satisfied that Parliament deslfec! to validate retrospectively what the Bihar legislation had ineffectually attempted. It has used words plain enough to implement its object and therefore the validating Act as H well as the consequential levy are good .\n\n. Rule 20(2) of the Mineral Concession Rules, which has been validated by s.2 of sub-s. ( 1) and figures as item 4 of the Schedule to the impugned enactme1<t, stands on au assured footing.\n\nThis --------~\n\n(') (1971) 2 SCR 893. 4\n\n10 SC/75-12\n\nA sub-rule is made by the Bihar Government purely as a delegate of Parliament, though beyond the scope of the delegation.\n\nTherefore Parliament could validate it and has done so.\n\nThe source of the authority for rule-making being of Parliament, it is indubitable that the power to give it life retrospective exists. Thus the impugned\n\nB legislation, levy and other actions are good.\n\nFor the n; asons set out above, we dismiss the writ petitions, but in the circumstances, without costs.\n\nPetitions dismissed.\n\nP.H.P.", "total_entities": 113, "entities": [{"text": "KRISHNA CHANDRA QANGOPADHYAYA ETC", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "KRISHNA CHANDRA GANGOPADHYAYA ETC", "offset_not_found": false}}, {"text": "UNION OF INDIA & QlRS", "label": "RESPONDENT", "start_char": 36, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 77, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 95, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 112, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 133, "end_char": 154, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 155, "end_char": 171, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 268, "end_char": 278, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Land Refonns Act 1950", "label": "STATUTE", "start_char": 286, "end_char": 307, "source": "regex", "metadata": {}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 309, "end_char": 322, "source": "regex", "metadata": {"linked_statute_text": "Land Refonns Act 1950", "statute": "Land Refonns Act 1950"}}, {"text": "Bihar Minor Minerals Concession Rules, 1964", "label": "STATUTE", "start_char": 324, "end_char": 367, "source": "regex", "metadata": {}}, {"text": "Interpretation of Statutes-Validation Act", "label": "STATUTE", "start_char": 383, "end_char": 424, "source": "regex", "metadata": {}}, {"text": "Bihar Land Reforms Act", "label": "STATUTE", "start_char": 596, "end_char": 618, "source": "regex", "metadata": {}}, {"text": "section 15", "label": "PROVISION", "start_char": 875, "end_char": 885, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act,\n\n1950", "statute": "the Bihar Land Reforms Act,\n\n1950"}}, {"text": "section 15", "label": "PROVISION", "start_char": 1018, "end_char": 1028, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act,\n\n1950", "statute": "the Bihar Land Reforms Act,\n\n1950"}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 1166, "end_char": 1179, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act,\n\n1950", "statute": "the Bihar Land Reforms Act,\n\n1950"}}, {"text": "Stence before the Central Act", "label": "STATUTE", "start_char": 1807, "end_char": 1836, "source": "regex", "metadata": {}}, {"text": "Section 2", "label": "PROVISION", "start_char": 1959, "end_char": 1968, "source": "regex", "metadata": {"linked_statute_text": "Stence before the Central Act", "statute": "Stence before the Central Act"}}, {"text": "section 10", "label": "PROVISION", "start_char": 2873, "end_char": 2883, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 2891, "end_char": 2919, "source": "regex", "metadata": {}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3120, "end_char": 3130, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act, 1950", "statute": "the Bihar Land Reforms Act, 1950"}}, {"text": "Act that the former B Act", "label": "STATUTE", "start_char": 3540, "end_char": 3565, "source": "regex", "metadata": {}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 4696, "end_char": 4709, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 4972, "end_char": 4982, "source": "regex", "metadata": {"statute": null}}, {"text": "Validation Act to validate the void provisions of Bihar Land Reforms Act", "label": "STATUTE", "start_char": 5044, "end_char": 5116, "source": "regex", "metadata": {}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 7187, "end_char": 7193, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 7203, "end_char": 7224, "source": "regex", "metadata": {}}, {"text": "s. 15", "label": "PROVISION", "start_char": 8086, "end_char": 8091, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 8232, "end_char": 8240, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 8248, "end_char": 8276, "source": "regex", "metadata": {}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 8813, "end_char": 8821, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act, 1950", "statute": "the Bihar Land Reforms Act, 1950"}}, {"text": "Bihar Miner Mineral Concession Rules, 1964", "label": "STATUTE", "start_char": 8892, "end_char": 8934, "source": "regex", "metadata": {}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 9398, "end_char": 9406, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Miner Mineral Concession Rules, 1964", "statute": "the Bihar Miner Mineral Concession Rules, 1964"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9499, "end_char": 9503, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Miner Mineral Concession Rules, 1964", "statute": "the Bihar Miner Mineral Concession Rules, 1964"}}, {"text": "Thereupon the State persnaded Parliament to enact the validation Act", "label": "STATUTE", "start_char": 10114, "end_char": 10182, "source": "regex", "metadata": {}}, {"text": "Act to validate certain provisions contained in the Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 10348, "end_char": 10428, "source": "regex", "metadata": {}}, {"text": "Bihar Minor Mineral Concession Rules, 1964", "label": "STATUTE", "start_char": 10438, "end_char": 10480, "source": "regex", "metadata": {}}, {"text": "Section 1", "label": "PROVISION", "start_char": 10547, "end_char": 10556, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Minor Mineral Concession Rules, 1964", "statute": "the Bihar Minor Mineral Concession Rules, 1964"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 10585, "end_char": 10594, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Minor Mineral Concession Rules, 1964", "statute": "the Bihar Minor Mineral Concession Rules, 1964"}}, {"text": "section 10", "label": "PROVISION", "start_char": 11824, "end_char": 11834, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 11842, "end_char": 11870, "source": "regex", "metadata": {}}, {"text": "Bihar Act XXX of 1950", "label": "STATUTE", "start_char": 11873, "end_char": 11894, "source": "regex", "metadata": {}}, {"text": "Bihar Act IV of 1965", "label": "STATUTE", "start_char": 11959, "end_char": 11979, "source": "regex", "metadata": {}}, {"text": "Land Reforms (Amendment) Act", "label": "STATUTE", "start_char": 11998, "end_char": 12026, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bihar Act VI of 1965", "label": "STATUTE", "start_char": 12034, "end_char": 12054, "source": "regex", "metadata": {}}, {"text": "sections 10", "label": "PROVISION", "start_char": 12089, "end_char": 12100, "source": "regex", "metadata": {"linked_statute_text": "Bihar Act VI of 1965", "statute": "Bihar Act VI of 1965"}}, {"text": "Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 12118, "end_char": 12146, "source": "regex", "metadata": {}}, {"text": "Bihar Minor Mineral H Concession Rules, 1964", "label": "STATUTE", "start_char": 12236, "end_char": 12280, "source": "regex", "metadata": {}}, {"text": "[1970] 2 S.C.R. 100", "label": "CASE_CITATION", "start_char": 12571, "end_char": 12590, "source": "regex", "metadata": {}}, {"text": "ss. 15 and 16", "label": "PROVISION", "start_char": 14339, "end_char": 14352, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 2", "label": "PROVISION", "start_char": 14437, "end_char": 14443, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 14516, "end_char": 14521, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 14785, "end_char": 14793, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 15523, "end_char": 15527, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 15816, "end_char": 15824, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 16491, "end_char": 16495, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 16657, "end_char": 16662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 17122, "end_char": 17130, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Minor Minerals Concession Rules, 1964", "label": "STATUTE", "start_char": 17548, "end_char": 17591, "source": "regex", "metadata": {}}, {"text": "s. 15", "label": "PROVISION", "start_char": 17815, "end_char": 17820, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Minor Minerals Concession Rules, 1964", "statute": "the Bihar Minor Minerals Concession Rules, 1964"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 20566, "end_char": 20571, "source": "regex", "metadata": {"statute": null}}, {"text": "[1967] 2 SCR 650", "label": "CASE_CITATION", "start_char": 22654, "end_char": 22670, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 23874, "end_char": 23878, "source": "regex", "metadata": {"statute": null}}, {"text": "State Act not qua State Act", "label": "STATUTE", "start_char": 25074, "end_char": 25101, "source": "regex", "metadata": {}}, {"text": "s.\n\n3", "label": "PROVISION", "start_char": 26645, "end_char": 26650, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 26673, "end_char": 26682, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 26805, "end_char": 26814, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 26908, "end_char": 26917, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 27889, "end_char": 27894, "source": "regex", "metadata": {"statute": null}}, {"text": "State Act and subordinate legislation given in the Schedule to the validation Act", "label": "STATUTE", "start_char": 28068, "end_char": 28149, "source": "regex", "metadata": {}}, {"text": "s. 10", "label": "PROVISION", "start_char": 28440, "end_char": 28445, "source": "regex", "metadata": {"linked_statute_text": "State Act and subordinate legislation given in the Schedule to the validation Act", "statute": "State Act and subordinate legislation given in the Schedule to the validation Act"}}, {"text": "Art. 255", "label": "PROVISION", "start_char": 29302, "end_char": 29310, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 255", "label": "PROVISION", "start_char": 30102, "end_char": 30113, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 30202, "end_char": 30211, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 255", "label": "PROVISION", "start_char": 30273, "end_char": 30284, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 255", "label": "PROVISION", "start_char": 30499, "end_char": 30510, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 255", "label": "PROVISION", "start_char": 30630, "end_char": 30641, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 255", "label": "PROVISION", "start_char": 30894, "end_char": 30905, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s.4", "label": "PROVISION", "start_char": 30941, "end_char": 30944, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 31080, "end_char": 31089, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 255", "label": "PROVISION", "start_char": 31282, "end_char": 31293, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 255", "label": "PROVISION", "start_char": 31695, "end_char": 31706, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 255", "label": "PROVISION", "start_char": 31905, "end_char": 31916, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 255", "label": "PROVISION", "start_char": 32123, "end_char": 32131, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 32452, "end_char": 32461, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 32616, "end_char": 32625, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 255", "label": "PROVISION", "start_char": 33029, "end_char": 33040, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 255", "label": "PROVISION", "start_char": 33173, "end_char": 33184, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s.10(2)", "label": "PROVISION", "start_char": 34981, "end_char": 34988, "source": "regex", "metadata": {"statute": null}}, {"text": "Mineral Concession Rules, 1964", "label": "STATUTE", "start_char": 35035, "end_char": 35065, "source": "regex", "metadata": {}}, {"text": "have already held that the Bihar Act", "label": "STATUTE", "start_char": 35149, "end_char": 35185, "source": "regex", "metadata": {}}, {"text": "s.15", "label": "PROVISION", "start_char": 35506, "end_char": 35510, "source": "regex", "metadata": {"linked_statute_text": "We have already held that the Bihar Act", "statute": "We have already held that the Bihar Act"}}, {"text": "Parliament passed an Act to validate the void provision of the Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 35580, "end_char": 35671, "source": "regex", "metadata": {}}, {"text": "s.2", "label": "PROVISION", "start_char": 38271, "end_char": 38274, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Electricity Supply Undertakings Act, 1949", "label": "STATUTE", "start_char": 40861, "end_char": 40909, "source": "regex", "metadata": {}}, {"text": "s.24", "label": "PROVISION", "start_char": 41811, "end_char": 41815, "source": "regex", "metadata": {"linked_statute_text": "The Madras Electricity Supply Undertakings Act, 1949", "statute": "The Madras Electricity Supply Undertakings Act, 1949"}}, {"text": "section 5", "label": "PROVISION", "start_char": 42343, "end_char": 42352, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 43766, "end_char": 43776, "source": "regex", "metadata": {"statute": null}}, {"text": "s.24", "label": "PROVISION", "start_char": 43888, "end_char": 43892, "source": "regex", "metadata": {"statute": null}}, {"text": "s.24", "label": "PROVISION", "start_char": 45369, "end_char": 45373, "source": "regex", "metadata": {"statute": null}}, {"text": "s.24", "label": "PROVISION", "start_char": 45668, "end_char": 45672, "source": "regex", "metadata": {"statute": null}}, {"text": "Examples of Validating Act", "label": "STATUTE", "start_char": 46723, "end_char": 46749, "source": "regex", "metadata": {}}, {"text": "(1940) FCR 110", "label": "CASE_CITATION", "start_char": 46892, "end_char": 46906, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 47333, "end_char": 47337, "source": "regex", "metadata": {"linked_statute_text": "Examples of Validating Act", "statute": "Examples of Validating Act"}}, {"text": "s.10", "label": "PROVISION", "start_char": 47428, "end_char": 47432, "source": "regex", "metadata": {"linked_statute_text": "Examples of Validating Act", "statute": "Examples of Validating Act"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 47587, "end_char": 47592, "source": "regex", "metadata": {"linked_statute_text": "Examples of Validating Act", "statute": "Examples of Validating Act"}}, {"text": "Central Act, 1957", "label": "STATUTE", "start_char": 47600, "end_char": 47617, "source": "regex", "metadata": {}}, {"text": "Section 15", "label": "PROVISION", "start_char": 47619, "end_char": 47629, "source": "regex", "metadata": {"linked_statute_text": "the Central Act, 1957", "statute": "the Central Act, 1957"}}, {"text": "s.2", "label": "PROVISION", "start_char": 47779, "end_char": 47782, "source": "regex", "metadata": {"linked_statute_text": "the Central Act, 1957", "statute": "the Central Act, 1957"}}, {"text": "Section\n\n2", "label": "PROVISION", "start_char": 47983, "end_char": 47993, "source": "regex", "metadata": {"linked_statute_text": "the Central Act, 1957", "statute": "the Central Act, 1957"}}, {"text": "s.24", "label": "PROVISION", "start_char": 50398, "end_char": 50402, "source": "regex", "metadata": {"statute": null}}, {"text": "s.2", "label": "PROVISION", "start_char": 51104, "end_char": 51107, "source": "regex", "metadata": {"statute": null}}, {"text": "(1971) 2 SCR 893", "label": "CASE_CITATION", "start_char": 51240, "end_char": 51256, "source": "regex", "metadata": {}}]}
{"document_id": "1975_1_169_201_EN", "year": 1975, "text": "--\"\"\"\"' 169\n\nMOHD. SERAJUDDIN ETC.\n\n1'.\n\nSTATE OF ORISSA\n\nApril 16, 1975\n\n[A. N. RAY, C. J. Ff. R. KHANNA, K. K. MATHEW, M. H. BE&\n\nANDY. V. ClIANDRACHUD, JJ.J\n\nConstitution-Article 286(1)-Section S of Central Sales Tax Act-Meaning of in the course of export-Agency of necessity-F.O.B. Contract.\n\nJ The appellants entered into two contracts with the State Trading Corpora- C tion. The S.T.C. entered into identical contracts with the foreign buyers for sale of the identical goods purchased by the S.T.C. from the appellant.\n\nThe clauses as to shipment, sampling, analysis, weigbment, payment are identical in both the contracts.\n\nThere is a special clause in each one of the contracts # providing that if the corresponding contract of S.T.C. with the foreign buyer shall stand cancelled for any reason, the contract of the S.T.C. with the appelh1nt will also stand cancelled.\n\nLikewise, there is a special clause in the contract between the S.T.C. and the foreign buyer that if for any reason the D contract between S.T.C. and. the appellant stands cancelled the contract between S.T.C. and the foreign buyer will stand cancelled. The letter of credit opened by the foreign buyer was to be endorsed in favour of the appellant.\n\nThe prices mentioned in both the contracts are the same with a difference of one dollar per ton.\n\nThe appellants contended that the contracts were in the course of export and, thr.refore, not taxable. The High Court came to the conclusion that the E saJe by the appellants to the S.T.C. was not in the course of 1export' and was theTefore, exigible to tax under the Central Sales Tax Act.\n\nIn appeal the appellants contended before this Court:\n\n1. The contract between the appellant and the S.T.C. is inextricably bound up with the export. The sale between the appellant and the S.T.C. and the export by Corporation to foreign buyer constituted F one integrated transaction.\n\n2. The S.T.C. has been interposed by the Statute between the appellant\n\nand the foreign buyer for a limited purpose. The inextricable link is not broken by the S.T.C.\n\nThe S.T.C. could not have diverted the goods to a buyer in India without violating Export and Imuort Control Order.\n\n3. The ontract betwee~ the appellant and the S.T.C. being on f.o.b.\n\nbasis the P.roperty in the goods passed only on shipment when the G goos are in the stream of export. There is no sale in the taxable terntory.\n\n4. Eve:r; i if it. is held that, the appellant did not have any contract with\n\nth~ .foreurn buyer and that the privity is essential the rigid rule of prn:1ty of contrast .should be relaxed in consideration of equity and J usttce and a reahshc approach should be adopted.\n\nThe respondent contended that the sale by the appellant to the S T C H a sale for export but not a sale in the course of export. · was\n\nThere can be only one sa1e in .the course of exp-0rt.\n\nHELD by C. J. (for himself and Mathew, Beg, Chandrachud, JJ).\n\nthe\n\n1 iesi\n\n0 o~~ngrs!nJrh~cf ~eci~Y:re, f~r~0!~:coif: dhd_ctly ~:een the Indian seller and the foreign buyer.\n\n[17SH] rme iary . een\n\n2. In the Coffee Board case this Court held that the introduction of an intr mediary between the seller and the importing buyer breaks the link. This Court has held that there must be a single sale which itself causes the exoort and there is no room for two or more sales in the course of export.\n\n[173FG&H]\n\n3. The contention that the contract between the appellunt and the s:r.c. anci the contract between the S.T.C. and the foreign' buyer formed integrated activities in the course of export is unsound. The crucial words in section 5 of the Central Sales Tax Act are that a sale or purchase of goods shall be deemed to take place in the course of the export of the goods only if the sale or purchase occasions such export. There are two separate and independent contract\"S of sale one between the appellant and the S.T.C. and th~ other between the S.T.C. and the foreign buyers within the meaning of ruling in the Coffee Board case and the Benam Brother's case. (!80FGH]\n\n4. The word ''occasion\" in section S means the immediate and direct cause.\n\n(181BJ\n\nS. The appellant was under no contractual obligation to the foreign buyer either directly or indirectly. The rights of the appellant were against the S.T.C.\n\nSimilarly, obligations of the appellant were to the S.T.C.\n\nThe price was dif~ ferent in the two contracts.\n\nThis difference also dissociates the two contracts from each other. [181EFH]\n\n,6. The S.T.C. is not an agent of necessity. The agency of necessity arises where the person authorised to act as an agent for another without any regard to the consent of the principal, act in cerfs,, in circumstances and the law creates an agency of necessity, e.g., a wife becomes an agent of necessity.\n\nIn the present case, there is no principal and agent relationship between the appellant and the S.T.C. The relationship is between the two principals. [182CDE1\n\n7. In the present case mention of f.o.b. price in contracts between the .appel~ Iant ancl the S.T.C. does not render the contracts with the foreign buyers f.o.b. The S.T.C. entered into independent contracts with the foreign buyers on f.o.b. basis.\n\nThe appellants were required under the contracts between the appellant and the S.T.C. to bring the goods to the ship named by the S.T.C.\n\nThe shipment of the goods by the S.T.C. to the foreign buyer is the f.o.b. contract to which the appellants are not the parties. [184DE1\n\n8. The fact that the export can be made only through the S.T.C. does not have the effect of making the appellants the exporters where there is direct contract between the Corporation and the foreign buyer.\n\n[185A]\n\nDismissing the appeals held. that sale was not in the course of exoort and was exigible to the Central Sales Tax. [185Cl\n\n(Per Khanna, J. dissenting)\n\nAllowing the Appeals, Held :\n\n(a) It was laid down in the Travancore Cochin case that a sale in the c_o1:1e of export predicates action between . the sale and the export, the two achvtt!es being so integrated that the connection between the two cann9t be ~luntanly H interrupted witholJt a breach of the Cf)ntract or .the ompuls1on aTis1ng from the nature of the transaction. Th\"'re must be an 1ntent1on on the part of both the buyer and seller to export, there must be an obligation to export and there must be an actual expert.\n\n[190BC1\n\n(b) The sale of mineral ores for export was canalised through S.T.C. in ursuancc of an order made under the Imports and Exports Control. ct, 19~7. ection 3 of that Act empowered the Central Government to proh1b1t, restnct\n\nMD. SERAJUDOIN v. ORISSA (Ray, C.J.) 171\n\nor otherwise control imports or expo1ts. Under the powers conferred by tha: A section the Central Government issued the Exports Control Order, 1958. Clause 3 of that Order provided that no person shall export any goods o~ the description specified in Schedule I except under and in accO'rdance with a hcence granted bythe Central Govrnment. Chrome Ore and Concentrates were specified in the first Schedule.\n\n[193ABC]\n\n(c) The agreement between the appellanr and S.T.C. incorporated .the terms and conditions which were settled between the appellant .and the foreign buyer.\n\nB It was agreed that the contract between the appellant and the S.T.C. would be deemed cancelled if for any reason the foreign buyer cancelled the corresponding purchase contracf of the S.T.C. The agreement between the •Pl>'Ilant and S.T.C. clearly contemplated the export of Chrome Concentrates. The name of the 'ship on which the Chrome Concentrates were to be loaded for the purpose of QX.port was also given in the agreement.\n\nThe price to be paid by S.T .c. to the appellant was fixed in terms of do1lars mainly because the price to be charged from the foreign buyer was fixed in terms of dollars.\n\nThe C amount that the S.T.C. was to get in the course of this transaction was 1 Dollar per ton. The appellant was to get 90 per cent against shipping documents and the remaining 10 per cent after destinational weight and analysis.\n\n[193EH]\n\n(d) The export of the Chrome Concentrates \\Vas occasioned by one transac- • . tion.\n\nThe parties to that transaction \\Vere the appelJant, the S.T.C. and the foreign buyer.\n\nThe S.T.C. was brought into the picture as an intermediary D because of the legal requirement according to which the export of Chrome Concentrates was to be cancelled through S.T.C. The agreements were part of one integrated transaction which resulted in the export of the g00ds.\n\nThe interconnection between the agreement was so intimate that one agreement could not stand without the other.\n\nIt was accordingly provided that the cance11ation of one agreement automatically resulted in the cancelJation of the other agreement. [194A to CJ E\n\n(e) The observations of the Coffee Board's case that there was no room for 2 or more sales in the course of export were made in the context of 2 indepen- <1ent sales. Those observations could not be invoked in the sale like the present where two sales are so interconnected as to be part of one integrated transaction.\n\nIn the Coffee Board's case, itself, the discussion about the abserlce of connection between the two sales would have been unnecessary if there was intention to lay down an absolute rule that once there are tWo contracts the court need not look to other circumstances.\n\nThe Coffee Board's case which was decided F by a C!Jnstitut.in Bench cou'~ n~Jt set at naught the rule laid down in a series of earher -dec1s1ons by Constitution Benches and in fact it did not do so.\n\n[194F, !95BC1\n\n(f) The S.T.C. could not have diverted the gooqs supplied by the appellant for a purpose other than the export to the foreign buyer.\n\n[196F]\n\n(g) The positioi:i of S.T.C. was not of a purchaser in the ordinary sense.\n\nS.T.C. was nc:i-t en~1tled to get profits and was not liable to bear losses resulting G from fluct.uat1ons n the market rate.\n\nThe S.T.C. came into the picture ns a statutor~ 1ptennechary and all that the S.T.C. was entitled in the bargain w a corµm15s1on of 1 DoJJar. [196G & 197 A&Cl as\n\nh) In hl-[hosla's case there were ho contracts. Despite the existence of two con acts t ts Court held that the contract in question was exem t fro ment of tax, as being in the course of import.\n\n[198A. D&EJ P m payte~~. Tr19smtract of sale between the appellant and S.T.C. was on F.O.B.\n\nORDER\n\nIn accordance with the judgment of the missed~ maJority the appeaJs were di.88\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 697 to 706\n\nof 1973 and 2063 to 2082 of 1974.\n\nAppeals by Special Leave from the Judgment & Order dated. the 17th September, 1973 of the Orissa High Court in S. J.C. Nos. 25 to 44 of 1971.\n\nGovind Das, P. H. Parekh, and Mrs. S. Bhandare, for the appellants (in C.As. Nos. 697-706/73)\n\nB. Sen, 0. C. Mathur and D. N. Mishra, for the appellants (In C.As. 2063-2082/74)\n\nG. L. Sanghi and Bishamber Lal, for intervener, (Misri Lal Jam)\n\nF. S. Nariman, Additional Solicitor General of India, V. S. Desai,\n\nP. H. Parekh, Mrs. S. Bhandare and Manju Jtley, for the applicant/ Intervener (M. M. T. C.)\n\nD S. T. Desai, M. C. Bhandare and B. Parthasarthy for the respondents (In all the appls) ,\n\nThe Judgment of the Court was delivered by Ray, C. J. H. R.\n\nKhanna, J. gave a dissenting Opinion.\n\nE RAY, C. J.-These ; i, ppeals by special leave raise the question whether the agreements between the appellants and the State Trading Corporation (hereinafter referred to as the Corporation) were in course of export, and therefore, immune from liability to the Central Sales Tax Act.\n\nThe appellant entered into fonr contracts for sale of mineral ore. Two of these contracts were with the foreign buyer M/s Associated Metal and Minerals Corporation, New York. The. other two contracts were with the State Trading Corporation. It is common ground that the Corporation entered into contracts with foreign buyers for sale of the identical goods purchased by the Corporation from the appellant.\n\nThe present appeal relates to the two contracts between the appellant and the Corporation. The High Court came to the conclusion that the appellant's two contracts with the Corporation are exigible to tax under the Central Sales Tax Act, 1956.\n\nSection 5(1) 0£ the Central Sales Tax Act, 1956 hereinafter referred to as the Act contains the following relevant provision :-\n\n\"A sale or purchase of goods shall be deemed to take place\n\nin the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India\".\n\n- •\n\nMD. SERAJUDDIN v. ORISSA (Ray, C.J.) 173\n\nCounsel for the appellant contended as follows. The contract in each case between the appe!lant and the Corporation is inextricably bound up with the export. The sale between the appellant and the Corporation and the export by the Corporation to foreign buyer constituted one integrated transaction. Second, the Corporation has been interposed by the statute for a limited purpose between the appellant and the foreign buyer. Export cannot be made except by the Corporation. The inextricable link is not broken by the .Corporation. The Coporation could not have diverted the goods to a buyer in India without violating export and import control order. Therefore, the sale is in the course of export. Third, the contract between the appellant and the Corporation being on F.O.B. basis, the property in the goods passed only on shipment when the goods are in the stream of export.\n\nThere is thus no sale in the taxable territory. Fourth, even if it is held that the appellant did not have any contract with the foreign buyer and that privily is essential the rigid rule of privily of contract should be relaxed in consideration of equity and justice and a realistic approach should be adopted. The nature of entering into contracts through the channel of the Corporation raises in reality a presumption' of the Corporation being an agent of the appellant in the integrated tran~\n\naction.\n\nCounsel on behalf of the appellant relied on some terms of contract in support of the contention that the contract between the appellant and the Corporation and the contract between the Corporation with the foreign buyer formed one integrated transaction. The clauses in the contract between the appellant and the Corporation relied upon by the appellant are terms as to price, shipment, sampling, analysis, weighing, payment and a special clause. The price is expressed in U. S. dollars per long ton, F.O.B. Ocean liner vessel, Calcutta: The term for shipment is that the material will be ready in Calcutta harur for shipment per steamer as Leneverett or Substitute schedule to load during December, 1960. The clause as to sampling and analysis is final sampling and moisture determination will be made at the time of unloading at the port of discharge by Far East Superintendence Company or U. S. Consultants and their certificate will be final and binding on both buyer and seller. The clause as to weighing says that the final\n\nweight~ as ascertained by Far East Superintendence Co. Ltd. or U. S.\n\nConsultants at the port of discharge is final and binding on both parties.\n\nThe terms as to payment are these. 90 per cent against shipping d?Cume.nts as described in buyer corresponding sale contract. Buyer\n\nw1~ assign the rele\".ant foreign letter of credit whic; h is to be opened in their name by theJr foreign buyer, Messrs.\n\nAssociated Metals and ?.!inerals Corporation, on receipt from the sellers of a Bank draft for\n\nifference between buyers F.0.B. purchase value and F.O.B sale value, I.e. $ 1.00 (Rs. 4.75) per try long ton for a Bank guarantee from a Scheduled Bank guara:iteeing that sellers will pay buyers F.O.B. purchase v_alue as sh?wn m the cont:act and buyers F.O.B. sale value as shown. m the forei, gn letter of credit and the buyers will endorse the bills of ladmg and dehver the same to sellers to negotiate against the above\n\nA mentioned letter of credit. Balance after destinational weight and analysis on the basis of documents mentioned in the Corporation's corresponding sa, le contract with buyer. If the balance 10 per cent is insufficient to cover short fall in weight and analysis at destination or any penalty imposed by the Corporation's foreign buyer the additional\n\namount shall be payable by sellers to buyers on demand.\n\nThe special clause relied on by the appellant is as follows :-\n\n(i) Unless otherwise agreed upon, the sellers agree that the contract shall be deemed as cancelled if for any reasons whatsoever M/s Associated Metals and Minerals Corporation, cancel their corresponding purchase contract with the buyers for supply of chrome ore.\n\n(ii) The terms and conditions of the buyers corresponding sale contract with M/s Associated Metals & Minerals Corporation will apply to this contract also except to the extent specified in this purchase contract.\n\n(iii) A true copy of buyers sale contract with M/s Associated\n\nMetals & Minerals Corporation is attached.\"\n\nOn behalf of the appellant it is said that the commodily could not be exported directly by the appellant in view of the restrictions imposed by law. The appellant entered into negotiations with foreign purchasers and settled all the conditions of the contract. The Corporation, thereafter entered into an FOB contract with the appellant and with the foreign buyer on identical terms. The Corporation is interested only in the commission of one dollar per long ton from the appellant.\n\nAll necessary steps including payment of customs duty for the shipment and export have been done by the appellant. The contract betwen the appellant and the Corporation is on FOB basis and the property in goods passes only on shipment when the goods are in the course of export.\n\nThe appellant relied on the decisions in State of Travancore-Cochin\n\n& Ors. v. The Bombay Co. Ltd. (1952) S.C.R. 1112 and State of Travancore-Cochin & Ors., v. Shanmugha Cashew Nut Factory & Ors. (1954) S.C.R. 53 in support of two propositions extracted from G those decisions. First, a sale by export involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of tbe goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be disoociated from the export without which it cannot be effectuated, and the sale and resultant export from parts of a single transaction. Of these two integrated activities which together constitute an export sale wbich- H ever first occurs can well be regarded as taking place in the course of the other. Even in cases where the property in the goods passed to the foreign buyers and the sales were thus completed within the State be- ·\n\nfore the goods commenced their journey from the State, the sales must be regarded as having taken place in the course of the export, and, therefore, exempt under Article 286 (I) (b). Second, the word \"course\" denotes movement from one point to another, and the expression \"in r-\n\n- '\n\nMD. SERAJUDDIN V. ORISSA (Ray, C.J.) 175\n\nthe course of\" not only implies a period of time during wbich the move- A ment is in progress but also postulates a connected relation. A sale in the course of export out of the country should be understood .is\n\nmeaning a sale taking place not only during the. activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities.\n\nThe two Travancore-Cochin decisions relied on by the appellant are on interpretation of the word \"in the course of the export of the goods out of the territory of India\" occurring in Article 286(1) (b) of the Constitution, Article 286 (1) states that no 111w of a State shall impose or authorise the imposition of a tax on the sale or purchase\n\nof goods where such sale or purchase takes place (a) outside the State C or (b) in the course of the import of the goods out of territory of India. Prior to the Constitution Sixth Amendment Act, 1956 there was an explanation for the purpose of sub-clause (a) of Article 286 ( 1). There was no definition of the expression \"in the course of import\" or \"in the course of export\" before the Constitution Sixth Amendment Act, 1956. By the Constitution Sixth Amendment Act, 0 1956 Parliament was given power to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause ( 1) of Article 286. Section 5 of the Central Sales Tax Act has given a legislative meaning to the expression \"m the course of export\" and \"in the course of import\". ·\n\nIn the first Travancore-Cochin case (supra) the respondents claimed exemption from assessment in respect of sales affected by them to foreign buyers on CIF or FOB terms on the ground that such sales took place in the course of the export of the goods out of the territory of India within the meaning of Article 286 ( 1) (b) of the Constitution.\n\nThis Court held that the sales which occasioned the export in each case fell within the scope of the exemption under Article 286(1)(b).\n\nThese sales were found to be a series of integrated activities commencing from the agreement of sale with the foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. The.se sales could not be dissociated from the export without which these could not be effectuated. The sale and the resultant export from parts of the single transaction. Any such integrated activities which together constitute an. export safo, whichever occurs first, can well be regarded as taking in the course of the other.\n\nOn these reasoning this Court held in the first Travdncore-Cochin case (supra) that assuming tha.t the sales to the foreign buyers were complete within the State before the goods conmmenced their journey, .\n\nthe sales must nevertheless be regarded as having taken place in the course of the export.\n\nIt is noticeable in the first Travarycore-Cochin case (supra) that the contracts were directly between the respondents and their foreign buyers. There was no intermediary between .the Indian seller and the foreign buyer. The sale and the export become integrated in one transaction.\n\nSUPR!!ME COURT REPORTS\n\n(1975] SUPP, S.C.R.\n\nA In the second Travancore-Cochin Ga, se (supra) the respondents imported raw cashew nuts from aboard, and neighbouring districts in the State of Madras. The respondents converted the same by certain process into edible kernels and exported the kernels to foreign COUll\n\ntries.\n\nThe respondents claimed exemption Article 286(1)(b) in respect of purchase of cashew nuts. The three propositions laid down in B the second Travancore Cochin case (supra) are these. First, sales by export and purchases by import fall within the exemption under Article 286(1)(b). Second, purcases in the State by the exporter for the purpose of export as well as sales in the State by the. importer after the goods have crossed the customs barrier are not within the exemp- . lion. Third, sales in the State by the exporter or importer by transfer of\n\nshipping documents while the goods are beyond the customs barrier C are within the exemption, assuming that the State power of taxation extends to such transactions.\n\nThe second Travancore-Cochin case (supra) was on the question D whether two categories of sale or purchase would fall within the scope of exemption under Article 286(1)(b). Th.e first category was the last purchase of goods made by the exporter for the purpose of exporting them tu implement orders already received from a foreign buyer or expected to be received subsequently in the course of business and the first sale by the importer to fulfil orders pursuant to which the goods E were imported or orders expected to be received after the import. The second category comprised of s11)es or purchases of goods effected within the State by transfer of shipping documents while the goods are in the course of transit. As to the first mentioned category this Court in the second Travancore-Cochin case (supra) said that the exemption under Article 286 ( 1) (b) was for sale or purchase of goods taking place in the course of the import of the goods \"into\" or export of the goods F \"out of\" the territory of India. The reference to the \"goods\" and to\n\n• . -\n\nthe \"territory\" of India make it clear that the words \"export out of\" and '\"import into\" mean the exportation out of the country and importation into the country respectively. The word \"course\" denotes movement from one point to another and the expression \"in the course\" not only ,. implies a period of time during which the movement is in progress, G but postulates also a connected relation. On this, reasoning this Court held that r, sale in the course of export means a sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities.\n\nThe purchase for the purpose of export was held in that decision not to be connected or integrated activities.\n\nH In the second Travancore-Cochin case (supra) the import from .Africa fell into two categories. The first consisted of purchases made through intermediaries called the Bombay Party, who acted as agents for the respondents charging commission. The Bombay Party arranged for purchases on behalf of the respondents and obtained delivery of the shipping documents on payment at Bombay. In the second category\n\n~:-+·\n\n' -\n\nMD. SERAJUDDIN V. ORISSA (Ray C. ]. ) 177\n\nthe Bombay Party indented the goods on their own account and sold A the goods as principals to the respondents and other customers. The shipping documents were made out in the name of the Bombay Party as consignees. This Court held that in respect of the purchases under the first category the Bombay Party acted marely as agents of the respondents, and, therefore, there was privity between the respondent and the African sellers. With regard to the second category the Bombay B Party were the purchasers and they sold the goods as principab to the respondents and there was no privity between the respondents and the African sellers.\n\nThe principal decisions of this Court on the interpretation of section 5(1) of the Act are Bengorm Nilgiri Plantations Company Coo- C noor & Ors. v. Sales Tax Officer Special Circle, Ernakulam & Ors. fl 964] 7 S. C. R. 706, Coffee Board, Bangalore v. Joint Commercial Tax Officer Madras (1970), 3 S. C. R. 147 and the recent decision in M/s. Binani Bros. (P) Ltd., v. Union of India & Ors. (1974)\n\n1 S.C.C. 459.\n\nIn the Nilgiri Plantations Case (supra) the appellants were sellers of tea and their purchasers were local agents of foreign buyers .. The sales were by public auction. This Court held that a transaction of sale which js a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in E the course of export unless the sale occasions export. It wassaid that , to occasion export there must exists such a bona between the contract of sale and the actual exportation that each link is inextricably connected with the one immediately preceding it. Without such a bond a transaction of sale cannot be called a sale in the course of export of goods out of the territory of India. There may be a veriety of trans- F actions if the sale of commodity is followed by export. Foreign purchasers may purchase through their agents within the territory of India.\n\nSuch a transaction is not in the course of export because the seller deres not export the gooes and it is not his concern as to how the purchaser deals with the goods. There may be also a transaction under a contract of sale with a foreign buyer under which the goods may under the contract be delivered by the seller to a common carrier for G transporting them to the purchaser. Such a sale may be dissociated from the export. A sale in the course of export predicates a connection between the sale and export. No single test can be laid as decisive for determining that question. Each case must depend upon its facts. But it does not mean that distinction between transactions which may be called sales for export and sales in the course of export is not real.\n\nWhere the sale is effected by the seller and the seller is not connected H with the export which actually takes place, it is a sale for export. Where the export is the result of sale, the export being inextricably linked up with sale so that the bond cannot be dissociated without a breach of the obligations arising by statute, COQtract, or mutual understanding between the parties arising from the nature of the transaction the sale is in the course of export. In the Nilgiri Plantations case (supra) this\n\n.~ L \\\n\nA Court found that the sales by the appellants were intended to be complete. without the export and as such it could not be said that the sales occasioned export. The sales were for export and not in the course of export.\n\nIn the Coffee Board case (supra) the Coffee Board framed rules B for sale of coffee to registered exporters. Only dealers who registered\n\nthem'.; elves as exporters of coffee with the Coffee Board and who held permits from the Chief Coffee Marketing Officer in that behalf were permitted to participate at the auction. After the bid the price would be paid in accordance with the conditions. One of the conditions called 'export guarantee' provided that it was an essential condition of the C auction that the coffee sold thereat \"shall be exported to the destination stipulated in the catelogue of lots, or to any other foreign country outside India as may be approved by the Chief Coffee Marketing Officer and that it shall not under any circumstances be diverted to another destination, sold, or be disposed or otherwise released in India\".\n\nAnother condition provided that \"if the buyer fails or neglect to export D the coffee within the prescribed time, he would be liable to pay a penally\". Another condition provided that if the buyer made any default to export the coffee, it would b_e lawful for the Chief Coffee Marketing Officer without reference to the buyer to seize the unexported coffee and deal with the same as if it was part and parcel of the coffee held by the board in their Pool Stock.\n\nThe Coffee Board contended that the auctions were in the course of export, because the sales themselves occasioned the export of coffee.\n\nThe Revenue contended that the sales were not bound up with the export. This Court held that the phrase \"sale in the course of export\" authorised not only a sale and an actual export but that the sale must F be a part and parcel of the export. The word 'occasion\" in the context of sale or purchase was held to mean to cause export or to be the immediate c; a, use of export. The introduction of an intermediary between the seller and the importing buyer was held to break the link.\n\nThere was one sale to the intermediary and another to the importer. The first sale was not in the course of export because the export began G from the intermediary and ended with the importer.\n\nThe ruling of this Court in the Coffee Board case (supra) is\n\nthat there must be a single sale which itself causes the export and that • there is no room for two or more sales in th~ course of export.\n\nThough the sales by the Coffee Board were sales for export, they were not sales in the course of export. They were two independent H sales in the export programrne. The first sale was a sale between the Coffee Board as seller to the export promoter. Then there was the sale by the export promoter to a foreign buyer. It was the second sale which was in the course of export since the second sale caused the movement of goods between an exporter and an importer. ln the Coffee Board case (supra) the rules compelling export meant compelling persons who bought on their own to export in their own\n\nMD. SERAJUDDIN V. ORISSA (Ray, C.J.)\n\nturn by entering into another agreement for sale. An essential condi\n\ntion as to export of coffee purchased at the auction was held not to amount to turn the transaction into a sale in the course of export.\n\nThe reason gi\\Cn was that if the registered exporter who was the bidder at the auction did not export he would commit a default of conditions No. 30 and 31 and be liable to penalty and seizure of the coffee.\n\nIn the Coffee Board case (supra) the phrase \"sale in the course of export\" was held to comprise of three essentials.\n\nFirst, there must be a sale.· Second, goods must actually be exported.\n\nThird, the sale must be .a part and parcel of the export. The propositions laid down in the Coffee Board case (supra) are these : The sale which is to be regarded as exempt is a sale which causes the export to take place or is the immediate cause of the export. To establish export a person exporting and a person importing are necessary elements and the course of export is between them. Introduction of a third party dealing independently with the seller on the one hand and with the importer on the other breaks the link between the two for then there are two sales one to the intermediary and the other to the importer. The first sale is not in the course of export because the export commences , with the intermediary. The tests are that there must be a single sale which itself causes the export or is in the progress or process or export. There is no room for two or more sales in the course of export. The, only sale which can be said to cause the export is the sale which itself results in the movement of the goods from the exporter to the importer,\n\nThe Coffee Board case (supra) discussecl all the earlier deciions some of which were on the meaning of the phrase \"in the course of export\" occurring in Article 286( 1) (b).\n\nIn the Coffee Board case (supra) at page 161 of the Report it is said that the same meaning must obviously be given to the phrase \"in the course of export\" or to the phrase \"occa.sions the export\". One of the decisions discussed was K. G. Khos/a & Co. v. Deputy Commissioner of Commercial Taxes (1966) 3 S.C.R. 352. In K. G. Khosla & Co. case\n\n(supra) Khosla and Company entered into contract of sale with the Director General of Supplies and Disposals for supply of axle bodies manufactured by the principal of the Khosla & Co. in Belgium. The goods were to be inspected by the Director General of Supplies. and Disposals in Belgium.\n\nUndr the c.ontraet of sale the .goods were liable to be rejected after a further mspect10n by the buyer D!fector General of Supplies and Disposals in India. The goods were imported into our country and supplied to the buyer .t Peramber and Mysore. The contract between Khosla and Company and Director General of Supplies and Disposals was held by this Court t\\l be in th~ cour'.e o~ import. .Th~ term as to rejection of goods as a result of mspection m India md1cated that there was no completed sale in Belgium under the contract.\n\nIn the recent decision in Binani Brothers case (supra) the petitioner was a supplier to the Director General of Supplies and\n\nA Disposals. The petitioner obtained import licences to supply nonferrous metals. The Government agreed to pay to the petitioner sales tax under the Central Sales Tax Act or West Bengal Sales Tax Act, whichever was applicable in terms of the contract. After the decision of this Court in K. G. Khosla & Co. case (supra) the Revenue Authorities issued an order directing that &a, les tax should not be B allowed in respect of supply of stores which have been imported against import licences for supplies under contracts placed by the Director General of Supplies and Disposals.\n\nOn the basis of that direction the Government deducted in respect of sales tax certain sums of money which were pending payment and also threatened to recover a large sum of money which had been paid as sales tax in C respect of supplies already made. This Court discussed the Travancore & Cochin cases (supra) and the Nilgiri Plantations Company case (supra) and the Coffee Board case (supra).\n\nMathew, J. speaking for the Court said that there was no obligation under the contract on the part of the Director General of Supplies and Disposals to procure import licences for the petitioner. It wMs the obligation of the petitioner to obtain import licence. Even if the D contracts envi.saged the import of goods and their supply to th~ Director General of Supplies and Disposals from out of the goocjs imported it did not follow that the movement of the goods in the cour~,~ of import was occasioned by the contracts of sales. between the petitioner and the Director General of Supplies and Disposals.\n\nKhosla & Co. case (supra) was discussed and this Court said that there was no E completed sale in Belgium because under the contract the Director\n\nGeneral of Supplies and Disposals reserved the final right of inspection and rejection of goods on their arrival in India. The crucial test which was laid down in the Nil11iri Plantations case (supra) as well as Cofjee Board case (supra) is whether there were independent transactions or only one transaction which occasioned the movement F of the goods in the course of export.\n\nThe contention on behalf of the appellant that the contract between the appellant and the Corporation and the contract betw•en the Corporation and the foreign buyer formed integrated activities in the course of export is unsound.\n\nThe crucial words in the section are thnt a sale or purchase of goods shall be deemed to take place in the G course of the export of the goods only if the sale or purchase occasions such export. The various decisions to which reference has been made illustrate the ascertainment of the pre-eminent question as to which is the sale or purchase which occasions the export.\n\nThe Cofjee Board case as well as the case of Binani Bros. (supra) clea, rly indicaies that the distinction between sales for export and sales in the course of export is never to be lost sight of. The features which H point with tmerring accuracy to the contract between the appellant and the Corporation on the one hand and the contract between Corporat10n and the foreign buyer on the other as two separate and independent contracts or sale within the ruling in the Coffee Board case (supra) and the Binani Brothers cae, are these.\n\nThe Corporation entered on the scene and entered into a direct contract with the foreign buyer to export the goods. The Corporation alone agreed to sell the g0ods\n\n< -\n\nMD. SERAJUDDIN V. ORISSA (Ray C. J.) 181\n\nto the foreign buyer. The Corporation was the exporter of the goods.\n\nA There was no privity of contract between the appellant and the foreign buyer. The privity of contract is between the Corporation and the foreign buyer. The immediate cause of the movement of goods and export was the contract between the foreign buyer who was the 1m- . porter and the Corporation who was the exporter and shipper of the goods.\n\nAll relevant documents were in the name of the Corporation B whose contract of sale was the occasion of the export. The expression \"occasions\" in section 5 of the Act means the immediate and direct cause. But for the contract between the Corporation and the\n\nf; ireign buyer, there was no occasion for export. Therefore, the export was occasioned by the contract of sale between the Corporation\n\nand the foreign buyer and not by the contract of sale between the C Corporation and the appellant. -.\n\nThe appellant sold the goods directly to the Corporation. The circumstance that the appellant did so to facilitate the performance of the contract between the Corporation and the foreign buyer on terms which were similar did not make the contract between the appellant and the Corporation the immediate cause of the export.\n\nThe Corporation in regard to its contract with the foreign buyer entered into :1 contract with the appellant to procure the goods. Such contracts for procurement of goods for export are described in commercial parlance as back to back contracts. In export trade it is not unnatural to find a string of contracts for export of goods. It is only the contract which occasions the export of goods which will be entitled to exemption. The appellant was under no contractual obligation to the foreign buyer either directly or indirectly. The rightf, of the appellants were against the Corporation. Similarly the obligations of the appellant were to the Corporation. The foreign buyer could not claim any right against the appellant nor did the appellant have any obligation to the foreign buyer. All acts done by the appellant were in performance of the appellant's obligation under the contract with the Corporation and not in performance of the obligations of the Corporation to the foreign buyer.\n\nThe expression \"sale\" in section 5 of the Act has the same meaning as in Sale of Goods Act. String contracts or chain contracts are G • separate transactions even when there is similarity relating to quantity, quality of goods, shipment, sampling and analysis. weighment and • force majeure etc. or other similar terms.\n\nA contract of sale is a contract whereby !Re seller transfers or agrees to transfer the pr0perty in goods to the buyer for the money consideration called the price. There were two separate contracts. The price was different in -the two contracts. This difference also dissociates the two contracts H from each other. The High Court was right in holding that the sales of the appellant to the Corporation were exigible to tax became the appellant's sales to the Corporation were not, sales in the course, of export.\n\nIt has now been held bv this Court in Glass Chatons & Users' Association v. Union of India (1962) 1 S.C.R. 862: Dave Son of Bhimji Gohil v. Joint Chi.ef Controller of Imports & Exports\n\nA (1963) 2 S.C.R. 73 ; and M/s. Daruka & Co. v. The Union of India & Ors. (1973) 2 S.C.C. 617 that the system of canalisation of exports or imports to the State Trading Corporation is constitutionally\n\nqaJid. The broad reasons for the system of canalisation are control of foreign exchange and prevention of abuse of foreign exchange.\n\nCuunsel for Minerals and Metals Trading Co. which became the successor to the Corporation did not contend that the Corporation is an agency. Agency is created by actual authority given by principal to the agent or principal's ratiiication of contract entered into by the agent on bis behalf but without bis authority. Agency arises by an ostensible authority conferred by the principal on the agent or by an implication of Jaw in cases of necessity. On behalf of the appellant it was said that the Corporation is an agent of necessity because theCor- C poration is a special agency to carry out certain public policies. The appellant contends that it is the exporter and the foreign buyer is the importer and the contract is said to be processed through the agency of the Corporation. Agency of necessity arises where the persons authorised to act as an agent for another without any regard to the consent of the principal act in certain circumstances and the Jaw D creates an agency of necessity, A wife becomes an agent of necessity.\n\nIn other cases agency of necessity is often applied where after the parties have created a contractual relationship, the law, in view of some emergency, confers upon one party authority to act for another, or allows an agent to exceed the authority which has been conferred upon him. In the present case, there is no principal and agent relation- E ship between the appellant and the Corporation and in the absence of such relationship the agency of necessity does not arise. Other instances of agency of necessity are where the master of a ship is entitled in the case of accident to enter into a contract which binds the owner of the cargo, notwithstanding that it transcends his express authority if it is bonafide made in the best interests of the owners con-\n\nF cerned. The same power is possessed by a land carrier in respect of perishable goods. In the present case, the relationship between the appellant and the Corporation is between two principals and there is no aspect whatever of principal and agency. Further, this que.stion of agency was never raised before the Sales Tax authorities.\n\nCounsel for the appellant contended that the contracts between the appellant and the Corporation were F. 0. B. contracts and the & property p; issed only on shipment when the goods were in the course of export. It was also said that the goods sold by the appellant to\n\nth~ Corporation could not be diverted by the Corp.oration, and, therefore, the transaction was in the course of export. Reliance was placed on the decisions of this Court in B. K. Wadeyar v. M/s Daulatram Rameslzwarlal (1961) I S.C.R. 924 ; State of, Bihar v.\n\nTata Engineering & Locomotive Co. Ltd. (1971) 2 S.C.R. 849; National H Tractors, Hubli v. Commissioner of Commercial Taxes, Bangalore\n\n(1971) 3 s. c. c. 143.\n\nIn Wadeyar's case (supra) sales were direct between Daulatram Rameshwarlal and the foreign buyer. Under the contracts Daulatram Rameshwerlal continued to be owners of the goods till the goods\n\nMD. SERAJUDDIN v. ORISSA (Ry, C.J.)\n\ncrossed the customs barriers. The Revenue contended that property passed to the foreign buyer before-shipment for three reasqns. First, the bill of Jading was taken in the name of the foreign buyer. SecoJ:1d, thS export was under the contract to be under the buyer's export licence.\n\nThird, the expoa clause contained a provision that it shall be deemed to be a condition on licence that the goods, for the export of which Fcencc is granted, shall be the property of the licensee at the time of the export. This Court said that the term in the contract for payment against presentation of documents meant that the bills of lading were retained by the sellers and the buyer would pay on presentation of the bills of lading.\n\nThe retention of the bill of lading by the seller would indicate an intention of the parties that the property iµ the goods would not pass till after payment.\n\nWith regard to the export Ecencc, it was said that the presumption in F.O.B. contract is that it 1s the duty of the buyer to obtain export licence though in the circumstances of a particular case this duty may fall -on the seller. The clause in the Export Control Order was construed to mean that the words \"at the time of the export do not mean the time when the goods crossed the customs barrier. Finally it was said that export as defined in the Import and Export Control Act, 194 7 means taking out of Jndia by land, sea or air ; and, therefore, export cannot be held to have commenced till at least the ship carrying the goods has left the port.\n\nFurther Wadeyar' s case is before the Act, -\n\nIn the National Tractors case (supra) the assessee purchased\n\niron ore from mine owners and sold them to the State Trading Corpora- E tion for export lo foreign countries.\n\nOre was transported by rail from the mines from Hospet to Hubli and from there by road to Karwar port where it was loaded into ships for transportation to foreign coi:11- .tries.\n\nUnder the relevant provision of the Mysore Sales Tax Act, tax F was payable on iron ore at the point of last purchase within the. State.\n\nThe sales tax authorities held that the last purchaser was the State 1 rading Corporation, and, therefore, the assessee was not liable to pay tax. The High Court held that the assessec is liable to tax because the transactions with the State Trading Corporation were in the_ coure of xport. This Court held that in the light of presumption wluch anses rn the case of F.O.B. contracts, the property did not G pass to the State Tradmg Corporation until the goods were actually put on b?ai:d the ship, and, therefore, the assessce was the last purchaser w1thm the State and was liable to tax. The decision in the National Tractors case (supra) was on !lie question as to who was the last purchaser m the State.\n\nIt was not the contention of the a>8essee that the sale to the Corporation was in the course of export.\n\nIn the. Tata Enghieering & Loomotive Co. Ltd. case (supra) the assessee was arrymg on the busmess of manufacturing and selling trucks, bus chssJS and spare parts to their appointed dealers. Agreements entered to betwee~_ the assessee and dealers showed that each dealer was assigned a territory in which alone the dealer could sell Ihe dealers had to place indents, pay the price of goods to be pu-~\n\nl O SC/7.5-J3 '\n\nA chased and obtained delivery orders from the Bombay Office of the assessee. In pursuance of the delivery orders the trucks etcetera were delivered in Bihar to be taken to the territories assigned to them for sale there. If the dealers failed to abide by the term requiring thein to move the goods outside the State of Bihar they would have committed .breach of their contracts. The question was whether the turnover B relating to the sales made by the assessee to its dealers for sale by them in their respective territories outside the State of Bihar was exempt from liability to pay sales tax under the Bihar Sales Tax. Act, on the ground that the sales took place in the course of inter-State trade ov commerce. It was held that where under the tenns of a contract of sale, the buyer is required, as a necessary incident of the C contract, to remove the goods from the State in which he purchased the goods to another State and when the goods are so removed, the sale must be considered as a sale in the course of inter-State trade or commerce.\n\nIn the Tata Engineering & Locomotive Co. ( 11 ) case\n\n(supra) the ratio was that under the contracts of sale the purcha, ers were required to remove the goods from the State of Bihar to other States. In the present case, the movement of goods in the course of D exwrt began when the Corporation shipped the goods under the export contract between the Corporatioi: and the foreign buyer.\n\nIn the present case, the mention of F.O.B. price in the contracts between the appellant and the Corporation does not render the contracts\n\nF.O.B. contracts with the foreign buyer.\n\nThe Cor- E poration entered into independent contracts with the foreign buyers on F.O.B. basis.\n\nThe appellants were required under the contracts between the appellant and the Corporation to bring the goods to the shop named by the Corporation.\n\nThe shipment of the goods by the Corporation to the foreign buyer is the F.O.B. contract to which the appellants are not the parties.\n\nTlie course of export in the export stream is possible in direct con- F tracts between the Indian seller and the foreign buyer. The Corporat10n purchased goods from the appellants in order to fulfil the contract with the foreign buyer. The only scope of the deeming provision in the Act is to find out the contract of sale which is the direct cause or which oecasio.ns the export.\n\nThe expression \"in the course\" implies not only a period of time G during which the movement is in progress but postulates a connected relation. Sale in the course of export out of the territory of India means sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with suchl activities.\n\nIn Burmah Shell Oil Storage & Distributing Co. v. Commercial Tax Officer (1961)\n\n1 S.C.R. 902 it was said that the word \"export\" did not mean a mere taking\n\n. -\n\nH out of the countrv but that the goods may be sent to a destination at which they could 'be said to be imported. The directions given y the Corporation to the appellant to place the goods on hoard the ship are pursuant to the contract of sale between the appellant and the Corporation. These directions are not in the course of export, _because the export sale is an independent one between the Corporat10n and the foreign buyer.\n\nThe taking of the goods from the appellant's place .,.\n\n......\n\n--\"\"'---\n\nMD. SERAJUDDIN v. OR!SSA (Khanna, J.)\n\nto the ship is completely separate from the transit pursuant to the export sale.\n\nThe fact that the exports can be made only through the State Trading Corporation does not have the effect of making the appellants\n\n185 A\n\nthe exporters where there is direct contract between the Corporation B and the foreign buyer.\n\nRestriction on export that export can be made -0nly through the State Trading Corporation is a reasonable restriction and has been upheld by this Court in several decisions to which refercncd has been made earlier.\n\nFor these reasons, we are of opinion that the High Court was c correct in its conclusion that the contracts between the appellant and the Corporation were not entitled to claim exemption within the meaning of section 5(1) of the Act.\n\nCivil Appeals No. 697-706 of 1973 are dismissed.\n\nPar)ies will pay and bear their own costs.\n\nIn Civil Appeals No. 2063-2082 of 1974 the appellants entered D into similar contracts with the Corporation.\n\nThe Corporation entered into similar contracts with the foreign buyers.\n\nThe appellants were assessed to tax under the Act. The appellants made an application to the Tribunal to refer the question to the High Court as to whether the sales by the appellants to the Corporation were in the course of export.\n\nThe Tribunal dismissed the application of the appellants.\n\nThe appellants applied to the High Court for orders that the Tribunal E be called upon to file statement of case, The High Court dismissed , the applications.\n\nThe High Court relied on the decision which is the subject matter of Civil Appeals No. 697-706 of 1973. In \\'iew of our conclusion in Civil Appeals No. 697-706 of 1973 that the. appellants are not entitled to claim exemption Civil Appeals No. 2063-2082 of 1974 are dismissed.\n\nIn view of the fact that the High Court directed the parties to pay and bear their own costs, similar order is made in all these appeals.\n\nKHANNA, J.-This jrn:lgment would dispose of civil appeals Nos. 697 to 706 of 1973 which have been filed by special leave by Md. Scrajuddin against the judgment of the Orissa High Court whereby the High Court answered the following question in respect -0f the two of the sales in favour of the revenue and against the assessee-appellant :\n\n\"Whether on the facts and in the circumstances of the case, the Sales Tax Tribunal is right in holding that the sales effected under the following four contracts were sales in the course of export not exigibld to tax under the Central Sales Tax Act, 1956 ?\"\n\nApart from the two sales with which we are concerned in the pre• sent appeals, the question also covered two other sales but iv respect\n\nA of them, the answer of the High Court was in favour of the assesseeappellant. So far as that part of the judgment of the High Court is concerned, its correctness has .not been assailed by the revenue.\n\nThe asscssee-appellant is a registered dealer of Cuttack III Circle nnder the Central Sales Tax Act. The appellant carries on B the business of mining and exporting minern I ores to foreign countries.\n\nThe appellant entered into four contracts for rnle of chrome concentrates. Two of those contracts were No. 19615 dated Mav 29, 1959 and No. 20579 dated December 7, J 959 with Messrs Associated Metals & Minerals, New York and Messrs Jan De Footer, Rotterdam (Holland) respectively. In 1960 C the sale of mineral ores for export was canalised through the State\n\nTrading Corporation (hereinafter described as STC). The appellants entered into two contracts No. 6/60 dated OctC>ber 26, 1960 and No. 2/61 dated April 14, 1961 for sale of those chrome concentrates with STC. STC in its turn entered into contract with foreign buyer's.\n\nThe appellant was assessed to tax for the quarters ending September 30, 1959 to December 31, 1961 by the Sales Tax Oilicer, who made D these assessments to the best of his judgment as the appellant failed to produce his account books or other documents in support of the returns. On appeal the Assistant Commissioner reduced the assessments for nine out of the 10 quarters and enhanced the asscssmenf for the quarter ending March 31, 1961. On second appeal the Sales Tax Tribunal remanded the case for fresh assessment, after holding that E the sales effected by the appellant under the above mentioned four\n\ncoctlracts were sales in the course of export and were thus exempt from payment of sales tax under article 286(1) of the Constitution.\n\nThe State of Orissa filed applications before the Tribunal for referring the above question of law to the High Court. Those applications were rej'ccted by the Tribunal. Thereupon, the State approached the High F Court. The High Court then called upon the Tribunal to state a case and refer tlie question reprnduced above to it.\n\nThe High Court in the judgment under appeal has held that the two contracts dated May 29, 1959 and December 7, 1959 with the foreign buyers occasioned export of the minerals out of the territory of India and, as such, those sales \\Vere not exigible to tax under G the Central Sales Tax Act. As mentioned earlier, we are no longer concerned with those two sales. As regards the other two sales effected under the contracts dated October 26, 1960 and April 14, 1961 with STC, the High Court answered the question against the assessce-appel- Jant and held that those two sales were not exempt from sales tax under article 286(1) (b) of the Constitution read with section 5(2) of the Central Sales Tax Act.\n\nH l n appeal before us Mr. Go bind Das on behalf of the appellant has assailed the judgment of the High Court and has contended that the sales in question were effected in the course of export and as such were exempt from the payment of sales tax. As against that, Mr.\n\nDesai has canvassed for the correctness of the view taken by the High Court.·\n\n;:. ,;...., ·-~'\"' -~,\n\nMD .. SERAJUDDIN v. OR!SSA (Khannd, !.) 187\n\nIn order to appreciate the contentions which have been advanced A , on behalf of the panies, it may be relevant to set out the material terms 'of agreement dated October 26, 1960 which was entered into between the appellant and STC. According to the agreement the appellant had agreed to sell and STC had agreed to buy Indian chrome ore on the terms. and conditions mentioned therein. After setting out the quantity of the material and the analysis specification, the agreemcnt mentioned the price to be : B\n\n\"U.S. $ 36.00 (U.S. Dollars thirty six) per long ton dry weight, basis 54% Cr, O, and 3.:1/1 Cr/Fe ratio with a premium of $ 1.00 for increase of 1 % Cr20, content but no .\n\n.J premium above 553 CnO,,, fractions prorata ; and with a c penalty of $ 1.00 for each 0.1 below 3.5/1 Cr/Fe ratio, -- • fractions prorata, FOB ocean liner vessel, Calcutta,.''\n\n• According to clause 5, the appellant rcpresentad that the material wonld be ready in Calcutta harbour for shipment per steamer as Leneverett or Substitute scheduled to load '<luring December 1960.\n\nClause 6 dealt with' sampling and analysis and according to it, the D material will be sampled at the time of loading into ocean going vessel by R. V. Briggs & Co. or Mitra S. K. Pt. Ltd. and the final sampling would be made at the time of unloading at the port of discharge of Par East Superintem.!ence Company or U.S. Consultants. The seller was to supply a weight certificate issued by the Calcutta Port Trust Authorities which was to form the basis for provisional payment.\n\nE The final weights were to be ascertained by the U.S. Consultants at the port of discharge and they were to be final and binding on the parties. Clauses 8 and 11 of the agreement read as follows ;\n\n\"8. Payment: 90% payment against shipping documents as describdd in Buyers corresponding sale contract.\n\nF ..\n\nBuyers will assign the relevant foreign letter of credit which is to be opened in their name by their foreign buyer, , Messrs.\n\nAssociated Metals and Minerals Corporation, on receipt from .,. the sellers of a Bank draft for difference between buyers FOB\n\npurchase value and\n\nFOB Sale value, that is $ 1.00 (Rs. 4.75 nP) per dry long ton for a Bank guarantee from a scheduled Bank guarantecin.g that sellers wiU pay buyers G • immediately upon sh1pment/sh1pments the difference between buyers FOB purchase value as shown in this contract and ' buyers FOB sale value as shown in foreign letter crediMhat 1s Dollar one (Rs. 4. 75 nP) per dry long ton by Bank Draft for. each. shipment and the buyers will endorse the bills of lad1pg and deliver the sme to sellers to negotiate agamst the aove mentioned letter of credit.\n\nBa- H lan, ce after destma.t1onal. weigh\\ and analysis on the basis of documents mentioned m STC s corresponding sale contract with .buyer~. Jf the balance 10% is insufficient to cover shortall m weight \"?d anlysis at destination or any penalty imposed by STC's foreign buyers, the additional amount shall be payable by sellers to buyers on demand.\n\n11. Special Clause : (i) Unless otherwise agreed upon, the sellers agree that the contract shall be deemed tlJl cancelled if for any reason whatsoever M/s. Associated Metals & Minerals Corporation, cancel their corresponding purchase contract with the buyers for supply of chrome ore. ·\n\n(ii) The terms and conditions of the buyers corresponding sale contract with M/s Associated Metals & Minerals Corporation will apply to this contract also except to the cxteut specified in this purchase contract.\n\n(iii) A true copy of buyers sale contract with M/s Associated Metals & Minerals Corporation is attached.\"\n\nOn November 4, 1960 M/s. P. Friedlaender & Co. of Calcutta addressed communication to the appellant stating that the above mentioned company had been asked by the Joint Divisional Manager of STC to let them have details of the above sale mentioning specifications, delivery, payment, weight and analysis to be duly approved by the appellant to enable STC to draw up the necessary contract.\n\nM/s. P. Friedlaender & Co. also reproduced the particulars coneernin~ the transaction. The appellant was asked to sign a copy of the Jetter to enable M/s P. Friedlaender & Co. to forward the same to STC as the appellant's approval of the transaction. The letter gave the same particulars of the quantity, specifications, price, sampling and assaying, weighting and shipment which had been mentioned in the\n\ntgrccment between the appellant and STC. As regards the payment it \\V<.s stated as un'dcr :\n\n\"Buyer to open an irrevocable letter of credit in US Dollars payable as follows :\n\n90% against usual shiping documents balance after final wcighment and analysis at destination.\"\n\nThe Jetter was signed on behalf of the appellant by M. K. Rahman in token of its acceptance.\n\nJn the meantime on October 26, 1960 the Chase .Manhattan G Bank New York sent a letter of credit to STC for thirtysevcn thousand U.S. dollars in the account of Associated Metals and Minerals Corporation. It was stated that it was in connection with the provisional con1n1ercial invoice for one thousand long ton Indian chrome concentrates originating from the appellant. In the letter of credit it was stated that it might be assigned by STC in favou~ of the appellant.\n\nOn December 30, 1960 the appellant sent the different documents H ,-elating to the shipment of the goods along with the original letter of credit assigned in his favour to the United Commercial Bank. Accompanying the letter was also the invoice sent by the appellant in respect of the above material.\n\nI need not set out the terms of the other agreement dated April 14, J 961 between the appellant and STC as it is the common case of the\n\n. ....,...\n\n• ..\n\nMD, SERAJUDDIN v. ORISSA (Khamia, J.) 189\n\nparties that the relevant terms of that agreement arc not materially A different from the above mentioned agreement. .\n\nArticle 286 (1) (b) provides :\n\n\"286. (I) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where sale or purchase takes place- B\n\n( b) in the course of import of the goods into, or export of the goods out of, the territory of India.\"\n\nThere was no' definition of the expression \"in the course of the import of the goods into, or export of the goods' out of, the territory of lndb\" before the Sixth Amendment of the Constitution. By that Amendment, Padiament was given power to formulate the principles for construing the expression. The Parliament accordingly provided in section 5 of the Central Sales Tax Act, 1956 as under :\n\n\"5. (1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.\n\n(2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of l ndia only ii the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of In\\lia.\"\n\nIn State of Travancore-Cochin & Ors . . v. The Bombay Co. Ltd.( 1 ) Patanjali Sastri CJ. speaking for the Court observed :\n\n\"A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, arld the sale and resultant export form parts of a single transaction.\"\n\n. In the case of State of Travancore-Cochin & Ors. v. Shamnugha Vilas Cashew Nut Factory & Ors.( 2 ) it was held by this Court that purchases in e State made. by the exporters for the purpose of export are not ; v1thm the exempt10n granted by article 286(1) (b) of the Const1tut1on. Patanjali Sastri CJ. speaking for the majority observed :\n\n\"The word 'course' etymologically . denotes movement from one point to another, and the expression 'in the course\n\n(') [1952] SCR 1112.\n\n(') [1954] SCR 53.\n\nA of' not o!11Y implies a period of time during which the movement 1s m progress but postulates also a connected relation, ..................... A sale in the course of export out of the country should similarly be understood in the context of clause .I(~) a~ meaning a sale taking place not only during the act1v1ties diteeted to the end of exportation of the goods B out of the country but also as part of or connected with such activities.\"\n\nThe learned Chief Justice further observed that the nhrase \"inteoratcd activities\" which had been used in an earlier idecisio~ to denote ';; sale which occasions the export cannot be dissociated from the export C without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction. It was in that sense that the two activities-the sale and the export-were said to be integrated. But a purchase for the purpose of export lilfo production or manufacture for export, being only an act preparatory to export could not be regarided as an act done \"in the course of the export ol' the goods out of the territory of India.\" D\n\nA sale in the course of export predicates a connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract or the compulsion arising from the nature of the transaction. In this sense to constitute a sale in the course of E export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be obligation to export, and there must be an actual export. The obtigation may ari>c by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. A transaction F of sale which is a preliminary to export of the commodity sold may be rcgartled as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export. And to occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it. Without such a bond, a transaction of sale cannot be called a sale in the course of export G of goods out of the territory of lndi.l\\ (see Ben Gorm Ni/giri Plantations Co. v. Sales Tax Officer, Special Circle Ernakulam & Ors. ( 1) The appellants in that case were carrying on the business of growing arid manufacturjncr tea in their estates. They sold tea to the local agents of the forign buyers. The sales were by public _auction at Fort Cochin, through brokers in accordance wnh the provJS1ons of the Tea Act, 1953. The purchases by the local agnts .of. the foreign H buvers were with a view to export the goods to their pnncipals abroad\n\nand the goods were in fact exported out of India: It was held that the sales by the appellants to the agents of the foreign buyers did .not come within the purview of article 286(1) (b) of the Consl!tutton.\n\nDealing with the contention that the sellers had knowledge that the ----------\n\n(') [1964) 7 SCR 706.\n\n. -\n\n-\"\"-'\n\n• • -.\n\n.f,--\n\nMD. SERAJUDDIS v. OR!SSA (Khanna, J.) 191\n\ngoods purchased from them were with the intention of exporting, A Shah J. speaking for the majority observed :\n\n\"But there is nothing in the transaction from which springs a bond between the sale and the intended export linking them np as part of the same transaction. Knowledge that the goods purchased are intended to be exported does not make the sale and export parts of the same transaction, nor docs the sale of the quota with the sale of the goods lead to that result. There is no statutory obligation upon the purchaser to export the chests of tea purchased by him with the export rights. The export quota merely enables the purchaser to obtain export licence, which he may or may not obtain.\n\nThere is nothing in law or in the contract between the parties, or even in the nature of the transaction which prohibits diversion of the goods for -internal consumption. The sellers have no concern with the actual export of the goods, once the goods are sold. They have no control over the goods. There is therefore no direct conl1ection between the sale and export of the goods which would make them parts of an integrated transaction of sale in the course of export.\" ·\n\nJn K. G. Khosla & Co. v. Deputy Co111111issio11er of Commercia7 Taxes('), the appellant entered into a contract with the Director- General of Civil Supplies for the supply of axle-bodies manufactured by its principals in Belgium. The goods were inspected on behalf of the buyers in Belgium but under the contract they were liable to rejection after further inspection in India. In pursuance of the contract the appellant supplies axle-bodies to the Southern Railway at Perambur and Mysore. It was held that the movement of the goods from Belgium to India was in pursuance of the contract between the appellant and the Director-General of Supplies and Disposals and that there was no possibility of those goods being diverted by' the appellant for any other purpose. The sale was accordingly held to be in the course of import, and as such, exempt from taxation.\n\nIn Coffee Board, .Bangalore v. Joint Conunercidl Tax Officer, Madras & Anr.( 2 ) this Court dealt with a case relating to the export of coffee.\n\nExport of coffee outside India was controlled under the Coffee Act, 1942, by the Coffee Board. Coffee especially screened and selected was sold to registered exporters at 'export auctions' . l'ermits were given to such registered exporter$ to participate at the auction. The Coffee Board prepared a set of rules which incorporated the terms and conditions of sale of coffee in the course of export.\n\nUnder condition 26 of the Rules a registered dealer was to give an '<:xport guarantee' under which export would be made only to stipulated or approved destinations. The buyer at an export auetion was free to_ export te coffee either by himself or _through a forwarding agent, without sellmg the goods to the l'orwardmg agent. Immediately after the export evidence of the shipping had to be produced before the\n\n(') [1966]3SCR 352.\n\n(') [I9703SCR 147.\n\nA Chief Marketing Officer. Jn case of default, according to conditions 3\\' and 31, the permit holder was liable to fine and the unexported coffee was liable to be seized. The Coffee Board claimed that sales of coffee to registered exporters had been made in the course of export. It was held by the majority that the sales by the Coffee Board were sales for export and not in the course of export. Hidayatullah B CJ. speaki.ng for the majority in that case observed :\n\n\"The phrase 'sale in the course of export' comprises in itself three essentials: (i) that there must be a sale (ii) that goods must actually be exported and (iii) the sale must be a part and parcel of the export. Therefore either the sale must take place when the goods are already in the process of being exported which is established by their having already crossed the customs frontiers, or the sale must occasion the export.\n\nThe 'vord 'occasion' is used as a Yerb and means 'to cause' or -'to be the immediate cause of'. Read in this way the sale which is to be regarded as exempt is a sale which causes the export to take place or is the immediate cause of the export.\n\nThe export results from the sale and is bound up with it.\n\nThe \\Vord 'course' in the expression 'in the course of' means 'progress or process of', or shor!ly 'during'. The phrase cxpartdcd with this meaning reads 'in the progress or process of export' or 'during export': Therefore the export from India to a foreign dcstinaiion must be established and the sale must be a link in the same export for which the sale is held. To establish export a person exporting and a person importing arc necessary elements and the course of export is between them. Introduction of a third party dealing independently with the seller on the one hand and with the importer on the other breaks the link between the two for them there are two sales one to intermediary and the other to the importer. T11e first sale is not in the course of export for the export begins from the intermediary and ends with the importer.\n\nTherefore the tests are that there must be a single sale which itself causcsthe cxp, ort or is in the progress or process of export. There is no room for two or more sales in the course of export. The only sale which can be said to cause the export is the sale which itself results in the movement of the goods from the exporter to the importer.\"\n\nThe decision in the case of Coffee Board (supra) was relied upon by this Court in the case of M/s. Binani Bros. v. Union of India(').\n\nThe petitioner in that case purchased goods from foreign sellers and supplied the same to the Directorate General of Supplies & Disposals H (DGS&D)< Question arose whether the sale by the petitioner to DGS&D took place in the course of export. The question was answered\n\nin the negative and it \\Vas observed that there was no reason in principle to distinguillh this case from the decision in the Coffee Board's case.\n\n(') [19i4] 1 s.c.c. 459.\n\n. -\n\nMD. SERAJUDDIN v. ORISSA (Khanna, J.)\n\nBefore dealing with the question as to whether the sales in qnesc tion took place in the course of export, I may mention . that the sale of mineral ores for export was canalised through STC m pursuance of an order ma'de under the Imports and Exports (Control) Act, 1947 (Act 18 of 1947). Section 3 of that Act empowered the Central Government to prohibit, restrict or otherwise control imports or exports. Under the powers conferred by that section, the Central Government issued the Exports ControL Order, 1958. Clause 3 of that order provided that no petson shall export any _goods of the descriplion specified in Schedule I except under and m accordance with a licence granted by the Central Government or by any officer specified in Schedule ll. Chrome ore and conentrate~ were .specified in the first schedule. Clause 6 ol that order inter a/ta provided that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any other licensing authority not to grant a licence if the licensing authority decides to canalise exports through special or cpecialiscd agencies or channels. It was in pursuance of the above power that the export of chrome concentrates was canalised through STC. Subsequently this function has been taken over by the Minerals and Metals Trading Corpor'ation of India Ltd. (MMTC).\n\nI may now advert to the question as to whether the sales in question took place in the course of export. I have given above the broad facts and it would appear therefrom that the agreement between the appellant and STC incorporated the terms and conditions which had been settled between the appellant and the foreign buyer.\n\nTne terms and conditions of the contract between, STC and the foreign buyer were also to apply to the contract between the appellant and STC, except to the extent specified in the latter agreement. lt was agreed that the contract between the appellant and STC would be deemed cancelled if for any reason the foreign buyer cancelled the correspon'ding purchase contract with STC. The agreement between the appellant and STC clearly contemplated the export of chrome concentrates. The name of the ship on which the chrome concentrates were to be loaded for the purpose of export was also given in the agreement. The price to be paid by STC to. the appellant was fixed in terms of dollars plainly because the price to be charged from the foreign buyer was fixed in terms of dollars. Indeetl the amount that STC was -to get in the course of this transaction ,; as one dollar per ton of the concentrates. The name of the foreign buyer to whom the chrome concentrates supplied by the appellant were to be sold was expressly mentioned in the agreement between the appellant and ~TC. The final , sampling of the chrome concentrates as well as the , rnal weights. were to_ be ascertained at the port of discharge in America and the certificates m that respect were to be binding on the parties.\n\nAlthough the Jetter of credit was to be opened by the foreign buyer m favou: . of STC, STC was to assign the same in favour of the appellant. fhe appellant .was to get 90 per cent against shipping documents. and the remammg 10 per cent after destinational weight ancl analysis. Before domg that the appellant had to aivc a bank draft or a bank guarantee to STC at the rate of one dolla~ per ton of the concentrates to be supplied by the appellant.\n\nA The facts of the case, in my opinion, go to show that the export of the chrome concentrates was occasioned by one transaction.\n\nThe parties to that transaction were the appellant, STC and the foreign buyer.\n\nS.T.C. was brought into the picture as an intermediary because of the legal requirement, according to which the export of chrome concentrates was to be canaliscxl through STC.\n\nAlthough the above B requirement necessitated the execution of two agreements, one between the appellant and\n\nSTC and the other ]){, tween STC and the foreign buyer, there can, in my opinion. be no doubt that the agreements were part of one integrated transaction v, hich resulted in the export of the goods.\n\nThe interconnection between the two agreements was so intimate that one agreement could !c not stand without the other. It was accordingly provided tbat the cancellation of one agreement would automatically result in the cancellation of the other agreement.\n\nMr. S. T. Desai on behalf of the respondents has lacd great stress on the observations in the case of Coffee Board (supra), aeco:oding to which there must be a single sale which causes the export D and there is no room for two or more sales in the course of export.\n\nIt is urged that it was the agreement of sale between STC a.nd the foreign buyer which can be said to cause the export.\n\nThe sale by the appellant to STC of the chrome concentrates was oniy for the purpose of export and as such was not exempt from pavment of tax.\n\nLearned counsel further submits that once there are iwo contracts, one between the dealer and the intermediary and the other E between the intermediary and the foreign buyer, the court need not look any further, for it would be only the contract between the intcrmedi'ary and the foreign buyer which would occasion the export and not the other contract.\n\nI find it difficult to accede to the above submission of Mr. Desai.\n\nF The observations in the case of Coffee Board (supra) that there was no room for two or more sales in the course of export were made in the context of two indeperr<lent sales.\n\nThose observations cannot be invoked in a case like the present where the two sales are so interconnected as to be part of one integrated transaction.\n\nHidayatullah CJ. speaking for the majority took full note of that aspect of the matter and it was in that context that he observed :\n\n.ff\n\n\"Here there are two independent sales involved in the export programme.\n\nThe first is a sale between the Coffee Board as seller to the export promoter.\n\nThen there is the sale by the export promoter to a foreign buyer.\n\nOf the latter sale the Coffee Board does not have any inkling when the first sale takes place. The Coffee Board's sale is not in any way related to the second sale. Therefore, the first sale has no connection with the second sale which is in the course of export, that is to say, movcn1cnt of goods between an exporter and an importer.\"\n\nThe above observations would have been wholly unnecessary and superfluous if it had been tbe intention of this Court to lay down an ahsolutc rule that once there are two contracts, one between the dealer\n\n• • . -\n\nMD. SERAJUDD!N \\', ORISSA (Khanna, J.)\n\nand the intermediary, and the other between the intermediary and the foreign buyer, the court need not look to other circumstances showing their inter-relationship and that only the latter contract would qualify for exemption from payment of tax.\n\nThis Court in a series of cases, all decided by the Constitution Bench, namely, State of Travancore-Cochin & Ors v. The Bombay Co. Ltd., State of Travancore- Coch & Ors. v. Shanmugha Vilas Cashew Nut Factory & Ors. and Ben Gorm Nilgiri Plantations Co. v. Sales Tax Officer, Special Circle, Enwkulam & Ors (supra), had laid stress on the integrated nature of tho activities and the close nexus between the contract of sale and foe export of goods.\n\nThe Coffee Board case, which too was decided by the Constitution Bench, could not set at naught the ruk laid down in a series of earlier decisions and, in fact it did not do so as is apparent from the passage reproduced above wherein Hidaytullah CJ. dealt with the question as to whether the two contracts were independent or not.\n\nThe correct legal position, in my opinion, is that if there is one integrated transaction which results in export the fact that the transaction takes \\he shape of two interlinked contracts would not make much material difference.\n\nArgument similar to that advanced by Mr. S. T. Desai before us was put forth on behalf of the State in the case of State of Bihar & Anr. v. Tata Engineering & Locomotive Co. Ltd. (1) and was repelled in the following words :\n\n\"We have earlier noticed that this Court in a series of decisions has pronounced in unambiguous terms that whereunder the terms of a contract of sale, the buyer is required t:o remove the goods from the State ii\\ which he purchased those goods to another State and when the goods are so moved, the sale in question must be considered as a sale in the course of inter-State trade or commerce. This is a well established position in law. In the Coffee Board case this Court did uot deviate from this position nor could it deviate as the earlier decisions were binding on it. Further in the course of his .itmgment, the learned Chief Justice who spoke for the Court referred wi.th approval to the earlier decisions of this Court where distinction between the sales in the course of inter-State trade or commerce and sales for the purpose of inter-State trade and commerce were explained. On the basis of the facts of that case, his Lordship came to the conclusion that the export of the coffee in question was not integrated with the sales with which the Court was concerned and that there was no direct bond between the export and the sales.\"\n\nThe passage I have already reproduced earlier was thereafter set ' H cut.\n\n_ One important criterion in order to detem1inc as to whether the contract of sale between the appellant and STC occasiQned the export\n\n(') [1971] 2 SCR 849.\n\nA is to find whether STC could divert the goods supplied by the appellant for a purpose other than the export to the foreign buyer. If the answer be in the negative, it would necessarily follow that the contract between the appellant and STC resulted in the export of chrome concentrates.\n\nThe above criterion was applied in a rrumber of cases.\n\nIn the case of Ben Corm Nilgiri Planrations Co. (supra) Shah J. ]l speaking for the majority observed :\n\n\"There is no statutory obligation upon the purchaser to export the chests of tea purchased by him with the export rights.\n\nThe export quota merely enables the purchaser to obtain export licence, which he may or may not obtain. There is nothing in law or in the contract between the parties, or even in the nature of the transaction which prohibits diversion of the goods for internal consumption.\"\n\nIn the case of K. G. Kilos/a & Co. (supra) Sikri J. speaking for this Court observed : ·\n\n\"Movement of goods from Belgium to India was in pmsuance of the conditions of the contract between the asscssee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sales took place in the course of import of goods withins. 5(2.) of the Act, and are, therefore, exempt from taxation.\"\n\nIn the case of Coffee Board (supra) Hidayatullah CJ observed :\n\n\"Tlie compulsion to export here is of a !different character. It only compels persons who buy on their own to export in their own turn by entering into another sale. It is a sale for export. Even with the compulsion tho sale may not result for clauses 26, 30 and 31 visualize such happenings.\"\n\nComing to the facts of the present case, I find that it wa.s an f.o.b. sale and there was absolutely no chance of diversion of the goods by STC for a purpose other than the export to the foreign buyer.\n\nIt may also be mentioned that the position of STC under the G contract between the appellant and STC was not of a purchaser in the ordinary sense of the term. Unlike such a purchaser, STC was not entitled to get profits arild was not liable to bear losses resulting from fluctuations in the market rate of the goods specified in the contract. It was not open to STC to charge any price for the goods exported to the foreign buyer. The price to be charged from the foreign buyer was already fixed in the contract between the appellant H and STC. An ordinary purchaser of goods is entitled to resell the goods or retain them with himself for any length of time. There is no obligation upon him to export the goods, much Jess to export them to a specified foreign buyer. As against that, in the present case as a result of the agreement between the appellant and STC, the latter was not entitled to retain the goods but was bound to export them i=ediately to ihe specifioo foreign buyer at a price which was al-\n\nMD. SERAJUDDlN v. ORISSA (Khanna, J.)\n\nready mentioned in the agreement between the appellant and STC.\n\nIn fact, the arrangement for export of the goods was also made by the appellant because the contract of sale between the appellant and STC was f.o.b. contract. STC came into the picture as a statutory intermediary because of the legal requirements under the Exports Control Order. All that STC was entifled in the bargain was a commission of one llollar per ton. Indeed, STC in one of its letters described its remuneration as commission. In the case of Mis Daruka & Co. v. The\n\nUnion of India & Ors.( 1) this Court observed in pan. 23 of the judgment that the Corporation like STC is in the nature of a commercial undertaking to which a licence has been granted for the export of certain commodities and the service charges are nothing but quid pro quo for the services rendered by the Corporation. The introduction of a statutory intermediary like STC with only entitlement of commission of one dollar per ton would not, in my opinion, affect the real nature of the transaction that it was the appellant who was to export the chrome concentrates to the foreign buyer.\n\nThe matter can be looked at from another angle. According to Article 286, no law of a Sta.le shall impose or authorise the imposition of tax 011 the purchase or sale of goods where such purchase or sale takes place in the course of import of the goods into or the export of the goods out of the territory of India. There is nothing in this article which restricts the exemption from payment of tax to only one sale or purchase. Likewise, there is nothing in Section 5 of the.\n\nCentral Sales Tax Act which restricts the sale or purchase occasioning export or import to only one sale or purchase. The fact that section 5 refers to sale or purchase in singular and not in plural would not make much material difference because accoMing to section 13 of the General Clauses Act, unless there is anything repugnant in the subject or context, words in the singular shall include the plural, and vice versa.\n\nAlthough in a vast majority of cases it would be only one sale or purchase which would qualify for exemption from payment of tax, this is not an absolute rule. There is nothing in law to rule out two sales qualifying for the exemption, if the facts of the case show that each of the sales is so interlinked with the export of the goods, that\n\nthe export can be said to be direct result of the two sales which are part of one integrated transaction.\n\nIt may be stated that a simple sale for export, i.e. a sale to a person who enters into a contract with a foreign buyer and exports the goods purchased by him to the foreign buyer would not by itself\n\nand in the absence of anything more qualify for exemption from payment of taxon the ground of being made in the course of export.\n\nThe question with which we are, however, concerned is as to what would be the position in law if the two sales are so interlinked as to be H part of the same transaction and whether the first sale in such an event would not be exempt from taxation even though the export is occasioned by the two co.ntracts of sa!e taken together. The respondents cannot, therefore, derive much assistance from the observations relied\n\n( 1) [1973] 2 s.c.c. 617.\n\nA upon by Mr. S. T. Desai in the. case of East India Tobacco Co. v.\n\nThe State' of Andhra Pradesh & Anr.(') that a sale for the purpose of export is not protected by article 286(1) <b) of the Constitution.\n\nI may mention that in the case of Khosla & Co. (supra) there were two contracts. This is clear from the statement of facts given in B the judgment of the High Court which was udder appeal in this Court. The judgment of the High Court is reproduced in the report of that case in 17 STC 473. The relevant passage in this respect reads as under:\n\n\"The assessec, Messrs Khosla and Co. entered idlto a contract with the Director-General of Supplies and Disposals, New Delhi, for the supply of 'axle-box bodies'. In order to fulfil the contract, the asscssce had to enter into contract with the manufacturers in Belgium. The goods were so got manufactured and imported into India and cleared 1 at the Madras Harbour and supplied to certain parties on the instructions of the buyer, the Director-Genera! of Supplies and Disposals, as contained in the contract . itself.\"\n\nDespite the existence of two contracts, this Court held that the contract of sale by Khos!a & Co. to the Director-General of Supplies and Disposals was exempt from payment of tax as being in the course of import. It was observed :\n\n\"The next question that arises is whether the movement of axle-box bodies from Belgium into Madras was the result of a covenant in the contract of sale or an incident of such contract. It seems to us that it is quite clear from the contract that it was incidental to the contract that the axle-box bodies would be manufactured in Belgium, inspected there arid imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the asscssee and the Director-Genera! of Supplies. There was no possibility of these goods being <liverted by the assessee for any other purpose. Consequently we hold that the sales took place in the course of import of goods within section 5(2) of the Act, and are, therefore, exempt from taxation.n\n\nAlthough the facts of the present case are converse to those of Khosla & Co. the principle \\atd down therein fully applies to the present case.\n\nI have already mentioned above that the contract of sale between H the appellant and STC was an f.o.b. contract. The question as to\n\nwhether such a contract would be immune against liability to sales tax urtder article 286 arose for determination in the case. of B. K.\n\nWadeyar y, M/s Dau/atram Rameshwarla/( 2 ). The respondents firm\n\n(') 13 S.T.C. 529.\n\n(') (19761 I S.C.R. 924.\n\n...\n\nMD. SERAJUDDIN l'. ORISSA (Khanna, J.)\n\nin that case claimed exemption from sales tax under article 286(1) (b) of the Constitution in respect of sales made by them of cotton and castor oil on the ground that the sales were on f.o.b. contracts under which they continued I<> be the owners of the goods till those goods crossed the customs bariier and entered the export stream. The respondents also contested the purchase tax to which they were assessed under section !O(b) of the Bombay Sales Tax Act. It was held that the goods remained the seller's property till they had been brought\n\nnd loaded on board the ship and so the sales were exempt from tax under article 286( 1) of the Constitution.· Dealing with the f.o.b. contracts, this Court observed that the normal rule in such contracts was \"that the property in the goods was intended to pass and did pass on the shipment of the goods. It is no doubt true that there w.a.s no rdcrence in the above mentioned case to section 5 of the Central Sales Tax Act which formulates the principles as t~ when sale or . purcha-'e of goods shall be deemed to take place in the cpursc of export or import, this fact would not affect the binding force of the rule laid down in the above ease. I may also observe in the above context that an f.o.b. sale though contemplating the export of the goods may be made between parties carrying on business in the same country (see \"Sale of Goods\" by P. S. Atiyah, p. 215). The learned author has given the following instance. \"A company, which ha.s contracted to sell goods to a foreign buyer, may itself buy goods, in order to fulfil the contract, f.o:b., English ports from English sellers.\"\n\nReferring to the case of Wadeyar (supra) Shah J. speaking for the E majority in the case of Ben Gonn Nilgiri Plantations Co. (supra) observed :\n\n\"This was undoubtedly a case of two sales resulting in export, and the first sale was held immune from State llL\"<ation: but that was so because the property in the goods had passed to the Indian purchaser when the goods were in the export stream. The first sale itself was so inextricably connected with the export that it was regarded as a sale in the course of export.\"\n\nThe above observations clearly lend support to the view that even in the case of two sales the first sale would be immune against taxation 1f the property in the godds passed to the Indian purchaser when the G goods were in the export stream. The reason for that was that the first sale was so inextricably connected with the export that it was regarded as a sale m the course of export.\n\n' Anoth.er test which wa.s laid down in the case of Ben Gonn Nilgiri Plantations Co. was as under :\n\n. ''.Where .the export is the result of sale, the export being mextncably lmked up with the sale so that the bond cannot be dissociated without a breach of the obligation arising by statute, contract or mutual urrdcrstanding between the parties ansmg from the nature of the transaction, the sale is in the course of export.\" 10 SC/iS-14\n\nA Applying the above test also, the sale by the appcUant to STC would qualify for exemption from taxation. It is plain that a breach of the appellant's obligation arising under the above contract of sale would result in a situation that STC would not be able to export the chrome concentrates to the foreign buyer.\n\n B I would, therefore, accept the appeals with costs, set aside the judgment of the High Court and answer the question referred to it in favour of the assessee and against the revenue. One hearing fee.\n\n• In civil appeals Nos. 2063 to 2082 of 1974 which has been filed by Nanklaram Huntaram, the appellants were lessees pf mines. They C entered into a contract with STC for the sales of iron ore. STC in \\. its turn entered into export contracts with foreign buyers. The appellants were assessed to tax under the Central Sales Tax. and as their declaration was not produced within the requisite time, the full rate was applied. The Sales Tax Tribunal negatived the appeUant's contention that the sales were exempt from payment of tax for being , D, in th'e course of export. The declaration filed by the appellants was accepted and it was directed that the assessments be made at the concessional rate. The Tribunal in holding the appellants to, be liable to pay Central Sales Tax found that the appeUants had no direct connection with .the export and that the sale by the appellants to STC was independent of the export. It was further observed that the contracts with STC had occasioned inter-State movement of the goods and E as such the turnover was liable to be assessed under the Central Sales\n\nTax Act. An application was thereafter made by the appellants to refer the following questions for decision to the High Court :\n\n\"1. Whether in the facts and circumstances of the case the Tribunal was right in holding that sale of iron ore was not in course of export ?\n\n2. Whether in the facts and circumstances of the case the contracts between the petitioner anid State Trading Corporation of India and State Trading Corporation of India and foreign buyers are all inter-connected?\n\n3. Whether in the facts and circumstances of the case the sale of iron ore is liable to be taxed under Central Sales Tax Act at all ?\n\n4. Whether in the facts and circumstances of the case there was material available on recoitl for assessing the petitioner under the provisions of Central Sales T<1X Act?\n\n5. Whether the sale by the petitioner had occasioned movement of goods in course of export and is protected by article 286 of the Constitution of India ?\"\n\nThe Tribunal dismissed the above application. The appellants then filed applicatioos before the High Court that the Tribunal be alle.d upon to file a statement of the case in respect of the above ment10ned\n\nMD. SERAJUDDIN v. ORISSA (Khanna, J.) 201\n\nquestions. The High Court dismissed those applications and in doing A so relied upon the judgment in the case of Md. Serajuddin v. State of Orissa which is the subject-matter of the other 10 appeals, namely, civil appeals Nos. 697 to 706 of 1973. The above mentioned 20 11ppeals have been filed against the oMer of the High Court dismissing those applications.\n\nMr. Bhandare on behalf of the State has urged in these 20 appeals that the facts of these cases arc rnatcriallv different from those in the cases of Md. Serajuddin and as such ev'en if we accept the appeals in the cases of Md. Serajuddin, we should not interfere with the order of the High Court in these 20 appeals. So far as the above submission is , eoncerned, I may observe that I do not express any opinion on the C point as io whether the facts of these cases are similar to those in cases of Md. Serajuddin. This is a matter which would have to be gone into after a reference and statement of case is submitted to the High Court. For our purpose it is sufficient to note that the High Court in dismissing. the applications filed by the appellants placed reliance upon its decision in the cases of Md. Serajnddin. As the judgment in the cases of Md. Serajuddin is being set aside, the ground D for refusing to call for a reference no longer holds good. I, therefore, accept the 20 appeals filed by Nandaram Huntaram, set 11'side the judgment of the High Court and direct the Tribunal to file a statement of the case and refer the questions reproduced above to the High Court. The appellants shall be entitled to the costs in tis Court rn these appeals also.\n\nOne hearing fee. . . 'E\n\nP.H.P.· Appeals dismissed .", "total_entities": 83, "entities": [{"text": "169\n\nMOHD. SERAJUDDIN ETC", "label": "PETITIONER", "start_char": 8, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "MOHD. SERAJUDDIN ETC", "offset_not_found": false}}, {"text": "STATE OF ORISSA", "label": "RESPONDENT", "start_char": 41, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 75, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "Ff. R. KHANNA", "label": "JUDGE", "start_char": 92, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "K. K. 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{"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 6786, "end_char": 6794, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 6888, "end_char": 6898, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 11560, "end_char": 11581, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Corporation are exigible to tax under the Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 12164, "end_char": 12233, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 5(1)", "label": "PROVISION", "start_char": 12236, "end_char": 12248, "source": "regex", "metadata": {"linked_statute_text": "the Corporation are exigible to tax under the Central Sales Tax Act, 1956", "statute": "the Corporation are exigible to tax under the Central 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"Article 286", "label": "PROVISION", "start_char": 20196, "end_char": 20207, "source": "regex", "metadata": {"linked_statute_text": "Prior to the Constitution Sixth Amendment Act, 1956", "statute": "Prior to the Constitution Sixth Amendment Act, 1956"}}, {"text": "Constitution Sixth Amendment Act, 1956", "label": "STATUTE", "start_char": 20322, "end_char": 20360, "source": "regex", "metadata": {}}, {"text": "Article 286", "label": "PROVISION", "start_char": 20569, "end_char": 20580, "source": "regex", "metadata": {"linked_statute_text": "the Constitution Sixth Amendment Act, 1956", "statute": "the Constitution Sixth Amendment Act, 1956"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 20582, "end_char": 20591, "source": "regex", "metadata": {"linked_statute_text": "the Constitution Sixth Amendment Act, 1956", "statute": "the Constitution Sixth Amendment Act, 1956"}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 20599, "end_char": 20620, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 286", "label": "PROVISION", "start_char": 21033, "end_char": 21044, "source": "regex", "metadata": {"linked_statute_text": "the Constitution Sixth Amendment Act, 1956", "statute": "the Constitution Sixth Amendment Act, 1956"}}, {"text": "Article 286(1)(b)", "label": "PROVISION", "start_char": 21193, "end_char": 21210, "source": "regex", "metadata": {"linked_statute_text": "the Constitution Sixth Amendment Act, 1956", "statute": "the Constitution Sixth Amendment Act, 1956"}}, {"text": "Article 286(1)(b)", "label": "PROVISION", "start_char": 22720, "end_char": 22737, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 286(1)(b)", "label": "PROVISION", "start_char": 22947, "end_char": 22964, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the 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"start_char": 34255, "end_char": 34274, "source": "regex", "metadata": {}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 35404, "end_char": 35425, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 5", "label": "PROVISION", "start_char": 39275, "end_char": 39284, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 40973, "end_char": 40982, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 41021, "end_char": 41038, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1962) 1 S.C.R. 862", "label": "CASE_CITATION", "start_char": 41876, "end_char": 41895, "source": "regex", "metadata": {}}, {"text": "(1963) 2 S.C.R. 73", "label": "CASE_CITATION", "start_char": 41973, "end_char": 41991, "source": "regex", "metadata": {}}, {"text": "(1971) 2 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"PROVISION", "start_char": 56535, "end_char": 56549, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Vere not exigible to tax under G the Central Sales Tax Act", "label": "STATUTE", "start_char": 57132, "end_char": 57190, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "article 286(1)", "label": "PROVISION", "start_char": 57512, "end_char": 57526, "source": "regex", "metadata": {"linked_statute_text": "Vere not exigible to tax under G the Central Sales Tax Act", "statute": "Vere not exigible to tax under G the Central Sales Tax Act"}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 57561, "end_char": 57573, "source": "regex", "metadata": {"linked_statute_text": "Vere not exigible to tax under G the Central Sales Tax Act", "statute": "Vere not exigible to tax under G the Central Sales Tax Act"}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 57581, "end_char": 57602, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "clause 5", "label": "PROVISION", "start_char": 58900, "end_char": 58908, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 59085, "end_char": 59093, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 286", "label": "PROVISION", "start_char": 63908, "end_char": 63919, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 5", "label": "PROVISION", "start_char": 64534, "end_char": 64543, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 64551, "end_char": 64578, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "article 286(1)", "label": "PROVISION", "start_char": 65997, "end_char": 66011, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Tea Act, 1953", "label": "STATUTE", "start_char": 69011, "end_char": 69024, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "article 286(1)", "label": "PROVISION", "start_char": 69316, "end_char": 69330, "source": "regex", "metadata": {"linked_statute_text": "the Tea Act, 1953", "statute": "the Tea Act, 1953"}}, {"text": "[1964) 7 SCR 706", "label": "CASE_CITATION", "start_char": 69441, "end_char": 69457, "source": "regex", "metadata": {}}, {"text": "Export of coffee outside India was controlled under the Coffee Act, 1942", "label": "STATUTE", "start_char": 71714, "end_char": 71786, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3", "label": "PROVISION", "start_char": 75873, "end_char": 75882, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", 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{"text": "section 5", "label": "PROVISION", "start_char": 89750, "end_char": 89759, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act", "statute": "Central Sales Tax Act"}}, {"text": "section 13", "label": "PROVISION", "start_char": 89877, "end_char": 89887, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act", "statute": "Central Sales Tax Act"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 89895, "end_char": 89914, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "article 286(1)", "label": "PROVISION", "start_char": 91437, "end_char": 91451, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 93306, "end_char": 93318, "source": "regex", "metadata": {"statute": null}}, {"text": "article 286", "label": "PROVISION", "start_char": 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"source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "article 286", "label": "PROVISION", "start_char": 99452, "end_char": 99463, "source": "regex", "metadata": {"linked_statute_text": "Whether in the facts and circumstances of the case the sale of iron ore is liable to be taxed under Central Sales Tax Act", "statute": "Whether in the facts and circumstances of the case the sale of iron ore is liable to be taxed under Central Sales Tax Act"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 99471, "end_char": 99492, "source": "regex", "metadata": {}}]}
{"document_id": "1975_1_18_29_EN", "year": 1975, "text": "SAMIR CHA1TERJEE v.\n\nSTATE OF WEST BENGAL March 21, 1975\n\n[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]\n\nMaintenance of Internal Security Act, 1971-Disclwrge of petitioner in cri1ninal ca.e at the request of police for want of evidence-If could be detained under the Act-Periodic review of cases of detention-If a legal cbligation-- S. 15-Scope of,\n\nThe petitioner and two of his associates were charged with offcnes under ss. 451, 324 etc. I.P.C. in one case. In another, the petitioner and three of his associates were charged with offences under ss. 148, 149, 307 etc. l.P.C.\n\nIn respect of both the cases, however, the police applied before the Magistrate requesting that the petitioner be discharged for his detention under the !\\1aint.enance of Internal Security Act, 1971.\n\nAn order of detention under the Maintenance of Internal Security Act was then passed against the petitioner and his associates on two grounds name1y\n\n(1) that he and his associates reinforced by 25 others formed a violent mob near a workshop manufacturing defence materials and hurled brickbats creating fear, frightfulness and insecurity among the \\\\'Orkers and the authorities, and\n\n(2) fhat he and his associates armed with pistol and hlgh explosive bombs created a great disturbance of public order which resulted in panic and confusion on a public road.\n\nThe detention orders against the associates were revoked because the Advisory Board reported that there was no sufficient cause for their detention.\n\nThe petitioner, however, did not appear before the Board and his representation was considered by the State and forwarded to the Advisory Board.\n\nHis second representation was not forwarded to the Advisory Board.\n\nIn a petition under A11. 32 of the Constitution the petitioner contended (1) that the provisions of the Mainteflance o.f Internal Security Act had been used as a convenient substitute for the provisions of ordinary law for detaining th!.! petitioner because his discharge was asked for on the ground that he was going to be detained under the Maintena<.:e of Internal Security Act; (2) that the grounds furnished relate to maintenance of law and order and therefore it could not be made the basis of the order of detention; (3) that the detaining authority had not applied his mind to the petitioner's case as shown by the fact that the grounds of detention show that the petitioner had to be discharged from the criminal cases due to v.•ant of sufficient evidence for the successful prosecution whereas the order of discharge showed that he was discharged because he was going to be detained under the Maintenance of Internal Security Act, 1971; (4) that the grounds of detention \\Vere vague; (5) that the Government had failed to periodically review the case of the petitioner and that had rendered his continued detention illegal and that this was a case where s. 15 of the Ac~ should have been applied <nd the petitioner released.\n\nDismissing the petition,\n\nHELD: (1) (a) It is not always possible for a Court dealing \\vith an habeas corpus petition in the case of a person detainedi under the Maintenance of Internal Security Act to say whether in a case where a criminal case had .been registered against a person and then withdrawn, and he \\Vas detained under the provisions of the Act, that was proper or not.\n\nThe Court is not in possessioO of ;:ill th~ evidence to be able to decide for itself whether the\n\nosecution \\Vould have been successful or not and without those m.'Lterials being available it is not possible for the Court to say that the punitive action should have been taken and not detention.\n\nIt is the authority conducting the prosecution that would be in a position to decide whether evidence was available which could establish the guilt of the accused beyond reasonable doubt before the criminal court.\n\nWhere the authority was not sure that S1:1ch inaterial was available it may not like to face the prospect of the prosecutton\n\nfailing and being charged with vindictiveness or mala fides if thereafter the accused was detained preventively.\n\nThe Court should be slow towards the conclusion that the detenu_ could have been succes.5fully prosecuted in the absence of all the material before it and then going on to criticise the detaining authority for not continuing the prosecution but detaining him. [25D-F1\n\nIn the instant cast the fact that an application for discharge was made by the police would not in any way 'vitiate the grounds of detention or show that the Police Comi:nissioner had no sufficient material before him to be satisfied that the petitioner ought to be detained in order to prevent him from acting in a manner prejudicial to pubJic order.\n\nWant of evidence for successful prosecution is a matter which can be legitimately taken into account by an authority competent to pass an order of detention under the Maintenance of Internal Security Act for deciding whether he should pass an order of detention against a partiCuiar person. [25H]\n\nHaradhan Saha v. State of West Bengal, A.LR. 1974 S.C. 2154; Sri/a/ Shaw\n\nv. State of W.B., [1975] I S.C.C. 336; and Sad/11! Roy v. Thr State of Bengal, !1975] 3 S.C.R. 291 referred to.\n\n(b) The fact that sufficient evidence to establish the guilt of the accused beyond reasonable doubt was not available to the police and for that reason t!J.ey had asked for the discharge of the petitioner did not mean that the detaining authority had not before him evidence on which he could be satisfied.\n\nThe detaining authority, when he came to know that the petitioner was going to be discharged from the criminal cases for want of sufficient evidence could very we1l take the view that it was necessary for 'the purpose of preventing the petitioner from acting in a manner, prejudicial to the 1naintenance of public ordet that he J<hould be detained and if he was satisfied on the evidence available. his subjective satisfaction could not be questioned by this Court.\n\nMerely because the two companions of the petitioner were released because there was not sufficient cause for their continued detention. it could not be assumed that there was no sufficient cause for the detention of the petiti0ner.\n\n[26 B-D J\n\n(2) The petitioner, along with his associates and 25 others formed a violent mob outside theworkshop and pelted brickbats for over two hours causing fear and alarm .not only to persons working in the factory bu1 to people passing along the road.\n\nAgain in the second incident the petitioner and his associates armed with pistols and bombs terrorised/ the local people and the workers causing widespread panic and confusion in the nre!3. Both the incidents clearly F relo.te to public order. [26 G-H] ,\n\n(3) (a) Whereas criminal prosecution is punitive preventive detention is resorted to in order to prevent a person from -acting in a manner prejudicial to public order in future.\n\nIf the detaining authority was satisfied that on the groun.ds mentiond i~ was necessary to detain the petitioner in ortler to prevent him from acting 1n a manner prejudicial to the public order that satisfaction cannot be questioned by the Court. [27GJ\n\n_(b) In the instant case it cannot be said that. when the Commissioner of Pohce stated that the _petitioer bad to be discharged from the criminal cases due to want of sufficient evidence for a successful prosecution that was one of te . grounds f'!r the. petitioner's detention.\n\nThe grounds for detention are . the 1nc1dents mentioned 1n the order of detention.\n\n[27E]\n\n. ( 4) ¥erely because the name of the petitioner did not figure in the first 1nfon:ryat!on report an~ he was detained for nearly a year after he was arrested on cnm1nal cargesz 1t. cannot be a_id that the grounds were vae. During H te course of 1nvestigat1on the deta1n1ng authority came to kno\"W that the petit!oner. was on~ of the persons who took part in the incidents and the petitionr s detent10!1 for a year after he was -arrested on criminal charges, had i>otbmg to do with the grounds being vague. [27H] .\n\n. (5) (a) Periodicl rev!ew. of a petitioner's detention was not considered by this Court as a legal obligation on the part of the Government nor the failure to do so as making the detention illegal. [28A]\n\noUPREME COURT REPORTS [1975] SUPf, S.C.R.\n\nSailesh Dutta v. State of W.B., Al.R. 1974 S.C. 1816 referred to.\n\n(b) Section 15 merely confers a power on the Government. The power and duty of this Court is to decide cases coming before it according to law.\n\nJn so doing it may take various considerations into account.\n\nBut to advise the Government as to how they should exercise their' functions or powers conferred on them by statute i~ not one of this Court's functions.\n\nWhere the Court is able to give effect to its views in the form of a valid and binding order that is a different matter. Furthermore, s. 15 deals with release on parole and there is nothing to show that the petitioner applied for to be released on parole for any specific purpose.\n\nRelease on parole is made only on the request of th~ party and for a specific purpose.\n\n[29B-C]\n\nBabu/al Das v. State of W.B. [1975] 1 S.C.C. 311 held inapplicable.\n\nORIGINAL JURISDICTION: Writ Petition No. 4 of 1975.\n\nPetition under Article 32 of the Constitution of India.\n\nM. K. Ramamurthi, G. Mukhoty and Rathin Das for the petitioner.\n\nD. N. Mukherjee, S. Basu and G. S. Chatterjee for the respondent.\n\nD The Judgment of the Court was delivered by\n\nALAGIRISWAMI, J .-The petitioner has been detained under the provisions of the Maintenance of Internal Security Act in pursuance of an order passed by the Commissioner of Police of Calcutta on 24-4-1974. The grounds for detention order are :\n\n\"l. That at about 05.40 hours on 9-5-73, you along with your associates about 10 in number forcibly scaled over the boundary wall of Garden Reach Workshop, manufacturing defence materials, at 61, Garden Reach Road, Calcutta and when resisted by the Security Staff of the said workshop, you along with your said associates, being reinforced by about 25 others assembled and formed a violent mob on an open plot of land beyond the western boundary wall of the said workshop and incessantly hurled brickbats, which continued till 08.00 hours, aiming at the Security Staff of the said workshop creating serious disturbances there. As a result 3 Security Personnel viz. Gurdit Singh, Ratan Singh and Hasib Khan of the said workshop sustained injuries on their person. at the aforesaid date, time. and place.\n\nIn consequence, fear, frightfulness and insecurity prevailed amongst the workmen and authorities of the above workshop leading t9 the suspension of defence production for some time in the said workshop in general and in the Drum Plant ( o_f the workshop) in particular which was prejudicial to the maintenance of Public Order.\n\n2. That at about 12,05 hours on 24-5-73 you along with your associates being armed with pistol and bombs formed an unlawful assembly on Transport Depot Road, Calcutta and created a great disturbance of public order by exploding high explosive bombs on Transport Depot Road, Calcutta near the workers' gate of M/s. Lipton Tea Co.\n\nat the aforesaid date and time with a view to terrorising A the local people as well as the workers of the said company.\n\nAs a result of your action, as aforesaid, widespread panic and confusion were created in the above area and thereby affected the maintenance of public order.\"\n\nIt appears that in respect of the two incidents mentioned in the two B grounds there were two FIRs filed before the Police. In respect of the first incident it is GR 1036/73 and in respect of the second incident it is GR 1246/73. In .respect of the 1st incident case No. 102 under sections 451, 148, 149 and 324 I.P.C. and section 9 of the West Bengal M.P.O. Act was filed before the Police Magistrate, Alipore against the petitioner, Bibhnti Dutta and Sakti Pada Dutta. In respect of the 2nd C incident case No. 118 under sections 148, 149 and 307 I.P.C., sections 3 and 5 of the Essential Supplies Act and sections 25 and 27 of the Arms Act was filed before the Police Magistrate, Alipore against the petitioner and three others, Bibhuti Dutta, Sakti Pada Dutta and Raghu Nath Show.\n\nOn 24-4-1974 in both these cases the Police applied before the Magistrate requesting thaUhe petitioner may be discharged for his detention under the Maintenance of Internal Security Act. The D same action was taken against Bibhuti Dutta and Sakti Pada Dutta also. It, however, appears that detention orders in respect of both Bibhuti Dutta and Sakti Pada Dutta were revoked because the Advisory Board reported that there was no sufficient cause for their detention. It would appear that both of them had appeared before the Advisory Board whereas the petitioner did not.\n\nWe do not know E whether the non-appearance of the petitioner before the Advisory Board had anything to do with the different result in this case. It should, however, be mentioned that the petitioner did make a representation on 22-5-74 and this representation after it was considered by the State Government was also forwarded to the Advisory Board .which submitted its report on 26-6-74. The detenu made another representation on F 1-7-74 asking for personal hearing but that was not forwarded to the Advisory Board.\n\nThe validity of the order has been attacked on the following grounds:\n\n1. That the grounds furnished to the petitioner indicate that G they relate to maintenance of law and order and not the public order and therefore it could not be made the basis of the order of detention .\n\n2. T?at. the ordr of detention is vitiated as it is based on mcrdents which are not proximate.\n\n3. That the provisions of the Maintenance of Internal Security ii\n\nAct _hve been used. as a convenient substitute for the\n\n.prvrsrons of th~ ordmary lawfor detaining the petitioner.\n\nThrs argument rs based on the following circumstances :\n\n(a) that hi~ discharge wa~ asked for _on the. ground that he was gomg to be detamed under M.I.S.A.;\n\n(b) that the grounds of detention state that the petitioner had to be discharged in the criminal cases due to want of evidence for successful prosecution, while the order of discharge passed by the Magistrate states that it was made as prayed for in the application of the Police ; ( c) that the cases mentioned in the two FIRs are such that the petitioner could have been easily prosecuted nnder the laws of the land ; and ( d) that the petitioner is continued in detention even though Bibhuti Dutta and Saktipada Dutta, who had been\n\nrrestcd in connection with the same cases as the petitioner and who had been served with identical grounds of detention, had been released on the advice of the Advisory Board.\n\n4. That the detaining authority had not applied its mind to the petitioner's case is shown by the fact that the grounds of detention show that the petitioner had to be discharged from the cases due to want of sufficient evidence for successful prosecution, whereas he was discharged because he was going to be detained, and that the grounds of detention refer to allegations which do not find a place in the FIRs.\n\n5. That the grounds of detention are vague.\n\n6. That the Government had failed to periodically review the case of the petitioner and that has rendered his continued detention illegal.\n\n7. That this is a case where section 15 of the Act should have been applied and the petitioner released, and\n\n8. That in any event the petitioner is entitled to a direction for consideration of his second representation dated 1-7-1974.\n\nBefore we proceed to deal with these points it may be useful _;, and necessary to refer to the decision of the Constitution Bench in Hpradhan Saha v. State of West Bengal('). It was observed :\n\n\"The power of preventive detention. is qualitatively. different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. , It may or may not relate to an offence.\n\nIt is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched.\n\nAn order of preventive detent.ion may .be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal.\n\nThe pendency of proecuiion is no bar. to an order of preventive\n\n------~-\n\n{l) AIR 1974 SC 2154.\n\n...\n\ndetention. An order of preventive detention is also not A a bar to prosecution.\n\nArticle 14 is inapplicable because preventive detention and prosecution are not synonymous.\n\nThe purposes are different.\n\nThe authorities are different.\n\nThe nature of proceedings is different.\n\nIn a prosecution an accused B is sought to be punished for a past act.\n\nIn preventive detention, the past act is merely the material for foference about the future course of probable conduct on the part of the detenu .\n\n. . . . . . The principles which can be broadly stated are these. .First mere\\y .. because a detenu . is liable to be tried 1 iii a trim'inai Cburi for the co\\Jmilssion of a criminal offence or to be proceeded against for preventing him from. committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information _report may be no bar against the District Magistrate iSsuing an order tinder the preventive detention.\n\nThird, where the concerned person is actually in jail custody at the time when an _order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to content! that. there could be no satisfaction on the part of the det_aining authority as to the likelihood\n\nof such a person indulging . in , activities which would jeopardise the security of the State Q_r the public order.\n\nF\\mrth, the mere circumstance . that a detention order is passed during the pendency of the prosecution will not violate the order.\n\nFiftb, the Qrdcr of detention is a precautionary measure. It is based on a reasonable prognosis of the future liehaviour cif a persbn based' pn\" bis. past conduct in the light of the surrounding circumstances. •\n\n• • • • G In the case of Madan Lal Agarwala, it is submitted that the . detention order was for a collatei:_al purpose because he was released on_ 26th March, f973, and the detention order wasof the same day. I_t was _also said that onr., incident was said to be the ground in the order of detention\n\nand one incident should not suffice for an order of de- . H tention.\n\nThe ground given in Madan Lal Agarwal's <:ase is that he in collusion with his father bad hoarded 8 quintals 84 kg. of rice, 2 quintals 88 kg. of flour, and 1 -quintal 96 kg. of suji and further that be had no licence as\n\n10 SC/75-3 . · ·\n\n• '\n\nrequire~ by Sec. 4 of the West Bengal Essential Foodstuffs Anti-Hoarding Oi'der, 1966. The detaining authority said in the grounds : '.'It is apparent in the aforesaid facts thai you in collusion with your father are likely to withhold or impede supply of foodstuffs or , rationed article : essential to the community\".\n\nThe future behaviour of Madan Lal Agarwal based on his past conduct in the light of surrounding circumstances is the real - ground of detention. It is needless to stress the obvious that Madan Lal Agarwal'sacts are gravely prejudicial to the maintenance of supplies essential to the community.\n\nIt was staid In the case of Haradhan Saha that he was released on 25th July, 1973 and he was arrested on 7th August, 1973, pursuant to a detention order dated 31st Jtily, 1973. It is, therefore, said that the detention order was passed for collateral purposes.\n\nThe grounds in the detention order are that on 19th June, 1973, Haradhan Saha with his associates was smuggling 115 bags of rice weighing 93 -quintals 80 kgs. to Calcutta covered by coal by engaging lorry without any valid permit or authority. Haradhan Saha violated the provisions of West Bengal. Rice and Paddy (Restriction on Movement. by Night) Order, 1969, and West Bengal Rice and Paddy_ (Licensing and Control) Orger, 1967, and tried to frustrate the food and procurement policy of the Gov ernment. These grounds concluded by stating that Haradhan Saha acted in a manner prejudicial to the maintenance of supplies and services essential to the community. This again illustrates as to how these detention orders came to be passed to prevent the likelihood of such acts prejudicial to the maintenance of supplies essential to the community.\"\n\nIt appears to us that many of the decisions relied upon by the petitioner have not appreciated the implications of this decision.\n\nFor instance decisions which hold that where there is a possibility of prosecutfog a person he should be prosecuted rather thau dealt with under the provisions of the Preventive Detention Act fall under that. category (Sri/al SHaw v. State of W.B.( 1) In the case before the Constitution Bench Madan Lal had no licence as reauired by section 4 of the West Bengal Essential Foodstuffs Anti-Hoarding Order, 1966.\n\nSo it would have been easy to prosecute him.\n\nIn the case of H aradhan Saha ( 2 ) he also violated the provisions of West Bengal Rice and Paddy (Restriction on Movement by Night) Order, 1969 and West Bengal Rice and Paddy (Licensing and Control) Order, 1967 because he was smuggling rice without any valid permit or autliority. '\n\n(1) !1975J sec 336.\n\n,(2) A.I-R 1974 SC 2154.\n\n'>-\n\nIn Sadhu Roy v. The State of Bengal('), it was observed: A\n\n\"There are two social implications of dropping prosecutions and resorting to substitutive detentions which deserve to be remembered.\n\nWhere a grievous crime against the. community has been committed, the culprit must be subjected to condign punishment so that the penal law may B strike a stern blow where it should. Detention is a softer treatment than stringent sentence and there is no reason why a dangerous criminal should get away with it by enjoying an unfree but unpaid holiday. Secondly, if the man is innocent, the process of the law should give him a fair chance and that should not be scuttled by indiscriminate resort to easy but unreal orders of detention unbound by precise time.\n\nThat is a negation of the correctional humanism of our system and breeds bitterness, alienation and hostility within the case.\"\n\nlt is not always possible for a Court dealing .with an habeas corpus petition in the case of a person detained under the Maintenance of Internal Security Act to say whether in a case where a criminal case has been registered against a person and then it is withdrawn and he is detained under the provisions of the Act, that is proper or not. The Court is not in possession of all the evidence tci be able to decide for itself whether the prosecution would have been successful or not and without those materials being available it is not possible for the Court to say that the Pl)nitive action hould have been taken and not detention. It is the authority conducting the prosecution that would be in a position to decide whether evidence is available which could establish the guilt of the accused beyond reasonable doubt before the criminal court.\n\nWhere the authority is not sure that such material is available it mav not like to face the prospect of the prosecution failing and being charged with vindictiveness or ma/a fides if thereafter the accused is detained preventively. The Court should be slow towards the conclusion that the detenu could have been snccessfully prosecuted in the absence of all the material before it and then going on to criticise the detaining authority for not contintiing the prosecution but detaining him.\n\nAt this point we may conveniently consider point 3 because it logically comes in here.\n\nPoint 3\n\nThere is no substance in any one of the contentions in this point.\n\nThe applicati.on for discharge was made by the Police and it is the Commissioner of Police thaf bad to be satisfied that there were sufficient grounds for the d.e!entiori of the petitioner.\n\nThat H would not in any way vitiate the grounds of detention or show that the Commissioner had no sufficient material before him to be satisfied that the petitioner ought to be detained in order to prevent him from acting in a manner prejudicial to public order.\n\nWant of evidence\n\n(1) W.P. No. 429 /74 decided on 22 January; 1975.\n\n• --0\"'--\n\n~ 26\n\n~).\n\n•·. .. $DPREME .CPURT REPORTS [1975] SUPP. s.c.R.\n\nfor successful prosecution is a matter which can be legitimately taken into account by an authority competent to pass an order of detention under the Maintenance of Internal Security Act for deciding whether he should pass an order of detention against a particular person. lh the grounds it is said that the petitioner had to be discharged from the criminal cases due to want of evidence for successful prosecution.\n\nA criminal case needs evidence to establish the guilt of the accused beyond reasonable doubt.\n\nThe fact that such evidence was not available does not mean that the detaining authority had not before him evidence on which he can be satisfied.\n\nThis would not show that in asking for discharge of the petitioner from the criminal cases the authorities were taking !he easier course of preventive detention rather than prosecuting him under t!)e ordinary law of the land.\n\nIt is the Police who were prosecuting the petitioner that had to decide whether there was sufficient evidence for a successful prosecution.\n\nThe detaining authority when he comes to know \\hat the petitioner was going to be discharged from the criminal cases for want of sufficient evidence for successful prosecution can very well take the view that it was necessary for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public o.rder that he should be detained and if he is satisfied on the evidence available his subjective satisfaction cannot be questioned by this Court. There is. no material to show on what grounds the Advisory Board held that in the case of Bibhuti Dutta and Saktipada Dutta there was not snflicient cause for their continued detention.\n\nMerely on the ground that in their case there was not suflic.ient cause it could not be assumed that there is no sufficient cause for detention of the petitioner.\n\nPoint 1\n\nWe think that this contention is without substance-. The incident mentioned in the 1st ground took place at 61 Garden Reach Road, Calcutta. The factory where this incident tookplace has 5000 workers working in it. The petitioner and his associates as weU as 25 others ass\\l!jllblcd and formed a violent mob outside the walls of the workshop an.d continued to pelt brickbats for over two hours. 'Apart from the lrge nqmber of workers working in that factory the inci, dent very clearly took place in a public place.\n\nThe factory has a. door. number in Garden Reach Road. So it must be a public place wilh members of the public passing to and fro and this incident would have cansed fear and alarm not merely to the persons working in the fa:ctory but also to people passing along the road. In the second ir.cident the petitioner and others were armed with pistol and bombs, exploded the bombs with a view to terrorising the local people as well as the workers and widespread panic and confusion was created in the above area.\n\nBoth these incidents, therefore, clearly relate to public order. In respect of (he 1st inddcnt it could not be said. that it related to only a single factory and therefore it does not relate to public . order because, as we have . shown' above, it would. have created panic and co11fusion an; ong the _passers-by in. the road in wh~h\n\nthe factory wa< situate; nor can we agree that alarm caused to 5000 . . A workers in which three members of the security staff were also injured docs not relate td public order. It is not necessary to refer to the decisions which distinguish between incidents which relate to. law . and order and incidents which relate to public order; These incidents clearly relate to public order. ·\n\nB Point 2\n\nThe appellant was arrested and produced before the Magistrate on 23-7-1973 and was in confinement till he was released on 24-4-1974, the date on which the order of detention was passedagainst\n\n'.Q him. He was therefore incapable of any activity . during that . perio(I. • ., There is therefore no substance in the argument' that 'as the.inCidents\n\nrelied upon relate to 9-5~ 73 and 24-5-73 th.ere .coul, d)iave;: been no apprehension on 24-4-74• that. he was' likely'-to, att -.fu :it' manrier prejiidicial to public ord; r; •• . , . ' \" : ~: • , • , . . . .,_. ,. • > ... ..,. .~ .• - ..... , .\n\nPoint 4 ,; ti\n\n•• . . , . . . . . , - - . It is contended that tlie. deta.ining authifty 'had not applied liis mind to the petitioner's case as shown by the fact that the petitioner had. to be discharged frOil\\ the criminal cases due to want <if sufficient :evidence for successful prosecution . .whereas. the order~ of discharge shows 1hat he was discharged because he was going to be detained, E iihd 1he ~, rounds of detention' refer to allegations which do not fi.nd a place in. the FIR. It cannot be said that when the Commissioner of Police stated that the petitioner had to be disc'harged from the criminal cases_ due to want of sufficient evidence fora succs; Jful prosecution that was one of the grounds for petitioner's detent10n. The grounds fo~ detention are the two incidents mentioned., The lack of F evidence for successful prosecution is not the. :,!; fOund for detention.\n\nAs has been held by this Court again and again, wliereas criminal prosecution is punitive preventive detention is r.esorted tc:>:jn order to prevent a person from acting in a manner pejuaicjal to public . order in future. If the detaining authority is satisfi?<J (hat on the two grounds, mentioned it is\" necessary to detain the petitioner in order to prevent him from acting in. a manner prejudicial to public order that G satisfaction cannot be questioned by the Court. ·\n\nPoin1 ,5 -- •... _ ~\n\n'\\V~ '.ar~ noi able to see hw 'ihe :grounds ian ii~ al~ 'to be vague because the name of. the petitioner doe~•not figure iu. tM Fl.R. and he .was-detaitl.ed for nearly a year after he was arrested on criiniriai' charges. :II\n\nIt is statep in the counter-affidavit filed by .the Commissioner of Police that' it'was during the Course of the in\\'estigation of:thecases that it .came to be _kl)o.Wn that the petitioner \"'..a~ .01'.e of the persims who took part in bath the incidents, and the petitioner's . .Jl1'1e.11.t_ion_ for. a_year after he was arrested on criminal charges has nbthi11g i!J do 1with 'the grounds being vagu~--- f ·-~·-~:' ·- :' ·· ·.: ''\n\nPoints 6, 7 and 8\n\nThe decision in Sai/esh Dutta v. State of W.B.(') was relied upon in support of point 6 to urge that the petitioner's case should have been reviewed periodically. Such a review was not considered by the Court as a legal obligation on the part of the Government nor the failure tc do so as making the detention illegal. We also agree that it would be better if the Government periodically reviews the cases of the detenus.\n\nIn support of point 7 the following observations of a Bench of this Court in Bab1ilal Das v. Sta'e of W.B.( 2 ) arc relied upon:\n\n\"While discharging the rule issued and dismissing the petition, we wish to emphasize that Section 15 is often lost sight of by the Government in such situations, as long term preventive detention can be scH-defeating or criminally counter-productive. Section 15 reads :\n\n15. TEMPORARY RELEASE OF PERSONS DETAINED\n\n(1) The appropriate Government may, at any time, direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.\n\n(2) In directing the release of any person under sub-section ( 1), the appropriate Government may require him to enter into a bond with or without sureties for the due observance of the conditions specified in the direction.\n\n(3) Any person released under sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his --< release as the case may be.\n\n( 4) If any person fails without sufficient cause to surrender himself in the manner specified in sub-section ( 3), be shall be punishable witb imprisonment for a term which may extend to two years, or with fine, or with both.\n\n(5) If any person released under sub-section (!) fails to H fulfil any of the conditions imposed upon him m1der the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof.\n\n(I) A.l.R. 1974 S.C. 1816 (') [1975] 1 s.c.c. 311.\n\nSAMIR CHATTERJEE v. WEST BENGAL (A/agiriswami, J.)\n\nWe consider that it is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to the parole power under section 15. Calculated risks, by release for short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely exercised.\"\n\nWe fail to see that these observations lay down any principle of law.\n\nSection 15 mereiy confers a power on the Government. The power and duty of this Court is to decide cases coming before it according to law. In so doing. it may take various considerations into account.\n\nBut to advise the Government as to how they should exercise tJieir . C functions or powers conferred on them by statute is not one of this Court's functions.\n\nWhere the Court is able to give affect to its views in the form of a valid and binding order that is a different matter.\n\nFmthermorc, section 15 deals with release ort parole and l)lere is nothing to show that the petitioner applied for to be released on parole for any specific purpose. As far as we are able to sec, release D on parole is made only on the request of the party and for a specific purpose.\n\nWe also hope that• in the case of the petitioner his representation made on l-7-1974 would be considered by the Government. It has been pointed out by this Court in its decision in Ram Bali Rajbhar v.\n\nState of West Bengal(') that the Government has got the power to . place the representation before the Advisory Board and therefore we direct the Government of West Bengal to consider and take an early decision on the pending fresh representation of the petitioner in accord- \"!nce with the requirements of law and justice even as was done in tha\\ case. Subject to this direction the petition is dismissed.\n\nP.B.R.\n\nPetition dismissed.\n\n(1) W.P. 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{"document_id": "1975_1_1_8_EN", "year": 1975, "text": "UNION OF INDIA & ANR.\n\nM/S. RAJDHANI GRAINS & JAGGERY EXCHANGE LTD.\n\nAND OTHERS\n\nMarch 19, 1975 B\n\n(A. N. RAY, C. J., K. K. MATHEW AND V. R. KRISHNA IYER, JJ.)\n\nForward Contracts (Regulation) Act (74 of 1952) as amended by Amending Act 62 of 1960, ss. 4(/), 6, 14A, 14B, 15 to 18 and 7A of the Forward Contracts (Regulation) Rules. 1954--Scope of.\n\nThe object of the Forward Contracts (Regulation) Act, 1952, is to provide for the regulation of certain matters relating to forward Contracts, the prohibi tion of cptions in goods and for matters connected therewith. Section 6 of the Act provides that the Central Government may, if it is satisfied that it \\\\'Ou1d be in the interest of trade and also in public interest to grant recognition to an association, grant tecognication in such form and \\Vith such condition as mav be specified and shall specify the goods D \\\\'ith respect to which forward contracts may be entered into. between the members of such assqciation or through or with any such member. Section\n\n14A(I), inserted by Amending Act 62 Of 1960, provides that no association concerned \\\\jth the regulation and control of business relating to forward contracts shall, after the commencement of the 1960 Act, carry on such business except under, and in accordance with, the conditions of a certificate of registration granted by the Commission, and s. 14B provides that on receipt of an application under s. l,4A, the Commission rnay, after making such enquiry as it consi- E ders' necessary\" grant or refuse the certificate.\n\nSections 15 to 18 of the Act. authorise the Central Government to impose restrictions as to commodities with respect to which bu.siness in. forward contracts can be carded on. , Rule 7 A ot the Forward Contracts (Regulation) Rules, 1954, framed under the Act, provides that the certificate of registration granted to an association shall be in Form F, which states that the registration is granted subject to the conditions\n\n(i) that the association shall comply with such directions as may from time to time be given by the Forward Markets Commission, and (ii) that the asso- F elation shall not conduct forward trading in any commodity other than those si>ecified hereunder except with the previous approval of the Forward Markets Commission.\n\nThe respondent was granted a certificate of registration under s. 14B with the second condition that it shaJl not commence tradingin non-transferable specific delivery contracts in any comm9(1ity without obtaining the prior approval of the Commission.\n\nA direction to the same effect was also given by the G Commission to the respondent in a letter.\n\nThe respondent filed a \\\\Tit petition in the High Court for quashing the condition and direction, and the High Court quashed them on the grounds : ( 1) While s. 6 gives power to the Central Government to specify goods in respect of which forward contracts may be entered into by the members of the recognised association, s. 14A is silent in regard to this matter implying that the Commissiolt has no such power; (2) the conditions which the Commission could attach to the certificate Of registration are only those which H relate to the manner and method of carrying on the business of forward con tracts, and the second condition imposed in the instant case did not relate 10\n\nthe manner or method of carrying on the business; and (3) no power to ini.pose such a condition could be implied as that would be repugnant to the power of Government to control, regulate or prohibit forward trade in respect of nny commodities, vested irt the Central Government under ss. 1.S to 18.\n\nA Allowing the appeal. to tqis , Courh\n\n!/ELD.: .Rule ~A is intra vires the ule-making pov, rcr and it v.as open to the Comn11ss1on to impose the second co1\\dition in tho certificate of registration.\n\nThe condition and direction are tberefore:valid. '[8-Dl\n\n' ( 1 )(a) The areas covered by s. 6 and s. 14A are different.\n\nThe fact that an associatjon is recognised by the Government \\Vould not enable it to carry 9n the .business in forward contracts. For that purpose, a certificate under s. 14A 1s a suie qua non.\n\nThe fact that Central Government has power to attach conditions as regards commodlties iO. respect of which the business of forward contracts cn be carried on is not in any way incompatible v.•ith the power , of the- Commission to impose conditions as: respects the comn1odities in whiCh the business can be conducted. The conditions in the market dealing with forward contracts. Jo. '.not' remain.stati<;,' and unless the Commission .is inVested with powe~ .. o i!Jlpose further conditJons the object of constiiuting the Con1mission \\vould be frustrate.cl.\n\nThe assumption by the. H, iglc. Court that when once conditions as to comn1odities have been laid down by the Government at the time ·.of recognition, the power of the Commission .. to attach further con.ditions as to commodities in which transactions in for.\\vard contracts can carrie~L:on wqi1ld .Pe.· repngll(!I1t to .tPe power o{ the GovernJTient, fails; td: take note of changing conditions in .the. market. [6E-HJ . ' . :\n\n(b) UI1de<\"& i4(0 ol. the Act,:Jbe Commission has to perfo<m •uch other duties and exercise such other pOwers ~-may be assigned to the Commission. by or under the Ac(, or as n1ay be prescribed.\n\nIn interpreting the expression 'by .or.-11nder the Actor as may be prescribed,' that is, where the court is can cemed With. the question whether it is legally 'CQmpetent for the Government to vest. a particular power in a statutory body like thd Commission, the proper rulf.. of interpretation would be that unless the nature of the power is such .as\n\nis, jncompatible with the pue fot: , which the: body. jc; created, or. unlessJ the particular power is contrai.odicated by 'any specific provjsion ef the en.act ment bringing the. body into extstence, any. power- which wo.uld furthe1 the; provisions of . the Act could be legally conferred on it. Jn the' instant csc, r. 7 A ptescribes the conditions under which a certificate of registration can be issued and that authorises the incorporation of the second condition in the cert(ficate. [7A-CJ ',,. ' . I. 'P. Gupta v. W. R. Natu; ; t\\.-LR. 1963 S.c. 274, followed.\n\n(2) The, power of the Commissin under ss. 14A and J4B is plenar\\< as reg8rds .the nature. of the conditions which it can .attach for. regulating and\n\ncon.tr~Hin& the. business. of Jorward .con.tracts , . of a particular Association.\n\nlimitatio~ thit s. 14A Only authorises c_onditionS as to n1an11er_ in .. which., .!~, business 1n forward contracts c:an be earned on, cannot be read tnto the .cttoi.1 or from other P.rovisions of the. Act The specification of commodities in res\n\n1'iect of .. which business can be erfied ol} is a conditiori. concened \\Vith the regtilatia:n and control of the business relating }O for\\\\-'ard contrftcts.\n\n[7DF]\n\n (3)(a) rhe restrictions or prohibitions in·~· 1'5 t~ ~8 are gener.at. _and apply to all persons. They are not concerned with restncttons or proh1b1t1ons as regards commodities in. respec_t of which business in forward contracts an be' .. carried on b)r particu.rar al!sociation or. _its members._ . The C'?mmiss1on atone is Invested wtth power to impose cond1ttons or proh1bttions with r.gard tO sUch commodities.\n\nTherefore, .S..'>\" .. l5 .. to .18 do not clash with pi~. power, Of the' commiSsion~ and recognition ·.of the power .of thP. mnnss1on,,.. wil~ nOt dero£:ate 'from the gerieral pov:er of.the GoverQment. Of course, the Cdn1 mtsSlon, being a snbotdinate body, should act in conformity with ss. 15 to 1~. . .' ' !7G-Hl\n\n(by~Th~·, comffiodi:ies . .i~ which'., th~ as_sc;>citi?n can caffY, o~ the OllsiOss; of forward contracts is an i{ltegral. p, art of tts bus1n~.ss. The .';'t.::TY. idea. <?f sett?ng up 'the Commission Wf,1$ .to\" supenrise and r~.gu!~.tesuch. bus1nss: by 1mp~SJng.\n\nConditions subjet:; t to 'which ,; alone;.-_the -a§soc_1a!10-?1 cart. a.~~ .o_tt the b.u.s1~~-.' Conditiotts .are tioth.ing but , qt;1alific,'}tions,,. res.tn.Clt<?ns or .l.1.~1.tattons mod,1fytg,:\n\nUNION v. RA.TDHANI GRAINS (Mathew, J.) ~3\n\n-oi even destroying, to a certaiµ eXteht, the right tO carry on buSineSs,. ':T_her~- ·-·.A\n\n'fo~:the_ specificat_ion of comµioditi¢s. i.n whih_ busine,~'i cao- .be.: cm; ne, d on is : a nditloµ Tela ting to regu13.tion and C?.ntrol <;>f that bus1:11ess .. [8B.~J \".:' ...\n\nCIVIL ArPELLATE JURISDI~TION : Civil Appeal No. 603(N) of '.1973_ . .\n\nFrom .the J uMment and Order dated 4-8-1972 of-the Delhi 'High 'Jl. b . ' . 'Court in L.P.A. No. 7 of 1968. -\n\n_ L. N. Sinha, Solicitor General of brtdia, P. P. Rao and Girish , Chandra, for the appellants ..\n\n'llishamber Lal, for respondent No. 1.\n\n'the Judgment of the Court was delivered by\n\nMATHEW, J.-Respondent No. l, a company registered under the Companies Act, together with respondents No. 2 and 3, members CJ) of the company, filed a writ petition before the High Court of Delhi praying for quashing condition No. (ii) specified in the certificateof registration granted to respondent No. 1 under s. 14D of the Forward Contracts (Regulation) Act, J 952 (hereinafter referred to as 'the Act') to the effect that !he company shall not commence trading in non'transferable specific delivery contracts in any commodity l: withonl obtaining the prior approval of the Forward Markets Commission (hereina'fter referred to as the 'Commission') in writing as also a direction contained in a letter dated June 2, 1964 from the Commission to the company not to commence trading in nontransferable specific delivery contracts in any commodity without' obtaining the prior approval of the Commission in writing.\n\nA learned Single Judge of the High Court allowed the writ petition and quashed the condition in the certificate and the direction in the Jetter.\n\nThe appellants preferred an appeal against the order before a Division Bench.\n\nThat was dismissed.\n\nThis appeal, by certi- , ficaie, is against the order of the Division Dench.\n\nTo appreciate the controversy in this case it is necessary to have _ G an idea as to the object of the Act gatherable from the vreamble and its provisions.\n\nThe preamble to the Act states that the object of the Act is to provide for regulation of certain matters relating to forward contracts, the prohibition of options in goods and for matters connected therewith.\n\nThe Central Government is oiven . power under the Act to extend its provisions by notification to vaiou3\n\nclasses of goods and to . different areas as and when necessary.\n\nH The general scheme of the Act is that forward contracts\n\nsould be allowed to be entered into only in accordance 'Y1th the rules and bye-laws of recognized associations. Secuon 2(a) defines an 'association' as meaning a body of individuals, whether mcorporated or not, consti\\uted for the purpose of regulating 1and controlling the business of the sale or purchase -of any goods. A\n\nA 'registered association' is defined in s. 2(jj) as meaning an association to which for the time being a certificate of registration has been granted by the Commission under s, 14B.\n\nSection 2(c) of the Act defines 'forward contract' and sections 2(0, 2(i), 2(m) and 2(n) respectively define \"non-transferable specific delivery contract\", \"ready delivery contract\", \"specific delivery contract\", and \"transferable specific deli- B very contract\". It is clear from these definitions that specific delivery contract, transferable specific delivery contract and non-transferable specific delivery contract are all different forms of forward contract.\n\nChapter II of the Act concrns the establ_ishment and constitution of the Commission and s. 4 occurring in that chapter enumerates the functions of the Commission.\n\nChapter III provides for recognition C Of associations concerned with regulation and control of forward contracts and deals with the rights, duties and obligations of recognized associations as also the powers of the Central Government in relation to them. Chapter IIIA was inserted in the Act by Act 62 of 1960 as Parliament found after watching the working of the Act for six years that the provisions of the Act as it stood were not adequate to cope D with the evil of excessive speculation and other malpractices prevalent in forward markets .. Section 14A in thatchapter provides for the certificate of registration being obtained by all associations concerned with the regulation and control of business relating to forward cont- _racts and the power of the Commission to grant or refuse such certificate of registration. Chapter IV which contains sections 15 to 19 of the Act deals with regulation, control and prohibition of forward E contracts in any goods, class o:f goods by the Central Government and also makes special provisions in respect of non-transferable specific delivery contracts and transferable specific delivery contracts and for prohibition of option in goods. Chapter V of the Act deals with penalties and procedure.\n\nThe controversy in this case centres round the correct construcl!on to be put on s. l 4A of the Act. The material portion of the section reads :\n\n\"14A (l) No association concerned with the regulation and control of business relating to forward contracts shall, after the commencement of the Forward-Contracts (Regulation) Amendment Act, 1960 (hereinafter referred to as such commencement) carry on such business except under, and in accordance with, the conditions of a certificate of registration granted under this Act by the Commission.\"\n\nSection 14B says that on receipt of an application under s. 14A, the Commission may, after maki9g such enquiry as it consi_ders neces- H sary, by order in writing grant or refuse to grant the certificate.\n\nSection 15 says that the Central Government may, by notification in the official gazette, declare that section to a]Jply o such g?ods. or class of goods and in such areas as a_y be specified the notification and thereupon, subject to the provmons contamed m s. 18, eve~ forward contract for the sale or purchase of any goods specified m\n\nl/NION v. RAJDHANI GRAINS (Mathew, J.) 5\n\nthe notification which is entered into in the area specified therein other- A wise than between members of a recognised association or through or with any such member shall be illegal. Section 16 provides that where a notification .has been issued under s .. 15, then notwithstanding anything contained in any other law for the time being in force or In any custom, usage or practice of the trade or the terms of any CO!ltract or the. bye-laws of any association concerned relating to any B contraC(-(a) every contract for sale or purchase of any goods specified in the notification shall be deemed to be closed out at such rate as the Central Government may fix in this behalf and (b) all differences arising out of any contract so deemed to be closed out shall be payable on the basis of the rate fixed under clause (a). Section 17 provides that the Central Government may by notification in C the official gazette declare that no person shall, save with the pennission of the Central Government, enter into any forward contract for sale or purchase of any goods or class of goods specified in the notification and to which the provisions of s. 15.· have not been made applicable, except to the extent and in the manner, if any, as may be specified in the notification and all forward contracts in contravention of the above provision entered into after the publication of the notifica- D tion shall be illegal. Section 18 provides that provisions in Chapter III and Chapter IV shall apply to non-transferable specific delivery oontracts for the sale or purchase of any goods.\n\nSection 26 confers power upon Government to make rules for carrying out the object of the Act. The material rule fo~ our purpose is rule 7A of the Forward Contracts (Regulation) Rules, 1954, framed E by the Government. It states that the_ certificate of registration granted to an association under sub-clause (b) of clause ( 3) of s. 14A of the Act shall be in form E and the certificate of registration granted to an association under s. l 4B of the Act shall be in form F; and in each case, the certificate shall incorporate the conditions, if any, subject to which it i~ granted. The material portion of Form F states : F \"The registration her.eby granted is subject to the conditions (i) that the said association shall comply with such directions as may from time to .time be given by the Forward Markets Commission and (ii) that the said association shall not conduct forward trading in any commodity other than those specified hereunder except with the previous approval G of the Forward Markets Commission.\" Conditions No. {i) and (ii) of the Certificate of Registration granted • to respondent No. 1 are the same as those specified in} Form F.\n\nThe High Court was o( the view that the conditions which the Com.- mission could attach to the certificate of registration were thos~ whic.h relate to the manner and the method of earrying on the business of forward contract, that condition No.(ii) in the-certificate did not relate H to the manner or method o! carrying on the business and that no power to impose such a condition cduld be implied as that would be repugnant to the power of government to control, regulate or prohibit forward trade in respect of any commodities vested in the Central Government under section 15 to 18 of the Act.\n\nI . ... 'SUPREME COURT Rl!l>ORTS . (1975] SUPP. S.C.R.\n\n.A. • section 6 provides that the Central Government may, ifitis-satisfied\n\n:that it would. be in the interest of trade and also in public interel!t ti> .grant recognition to an association, grant recognition to the association .fa such form and with such condition as may be specified or prescribed ·:and shall specify in such. recognition the goods or cla!; Ses of go9ds with respect to which forward contracts may be eniercd into between: the .B -members of such association or through or with any such member. .\n\n. According to. the High Court, while section 6 which give8 power to the Central Government to accord recognition to an assci\\:ialion provides for specifying the goods in respect of which forward contrat may b_e entered into by the memb_, rs of the recognized association, ; s. 14A is silent in regard to this matter implying ihereby that the :c . Commission has no power under this section to specify the goOds in\n\n.respect of which forward trading can be carried on. · , • .··\n\n Recot,'Ilition of an association under s. 6 carries with it <Cettalil duties and confers certain rights on the association. Section 8 states that -every recognized association shall furnish to the Central Goverrtc men( such periodical returns as may be prescribed. Section 9A pro- D vides that a recognised association may make rules with respect to matters specified therein.\n\nThe fact that an association is recognized by the Central Government would not enable it to carry on thbusi- 11ess in forward contract. For carrying on business in forward' contract, a certificate of registration under s. 14A is a sine qua non. The area. covered by section 6 and l 4A is different. The fact that Central Gov-\n\n. E crnment has power to attach conditions as regards the commodities in respect of which the business of forward contract _can be carried on is not in any way incompatible with the power of the Commission to impose conditions as respects the commodities in which the busine§S can be conducted. The conditions in the market dealing with forwar, i -contract do not remain static. They change. And unless the F Commission is invested with power to impose further conditions with respect to the commodities in which the business of forward contract can be carried on, the object of constituting the Commission would be frustrated. The assumption by the High Court that. when once conditions as to commodities in respect of which busi-• ness can be carried on have been laid down at the time recognition was granted by Government, the power of the Commission to attach G further conditions as to the commodities in which transactions in forward contract can) be carried on, would be repugnant to the power of the Government, fails to take note of the changing conditions in the market. When s. 14A says that no association shall carry on business jn forward contracts except in accordance with' the conditions specified in the Certificate, there can .be no doubt as to the nature of conditions which might be attached, to a certificate of registration. Under clause H\n\n(f) of s. 4, the Commission has \"to perform such other duties and exercise such other powers as may be assigned to the Commission by or under this Act, or as may be prescribed.\" Dealing with the expression \"by or under this Act or may be prescribed\" in s. 4 ( f), this Court has said in I. P. Gupta v. W. R. Natu(') that there was\n\n(!)A.LR. 1963 S.C. 274.\n\nUNION v. RAJDHANI GRAINS (Marhew, J.)\n\nno limitation upon the nature of the power that might be conferred except that which might flow from its Mving to be one in relation to the regulation of forward trading in goods which the Act is designed to effectuate.\n\nThe Court observed that where the Court is concerned with the question whether it is legally competent to vest a particular pvwer in a statutory body, the.proper rule of interpretation would be that unless the nature of the power is such as is incompatible with\n\nthe purpose for which the body is created, or unless the particular power is contra-indicated by any specific provision of the enactnrent bringing the body into existence, any power which would further the provisions of the Act could be legally conferred on it.\n\nAnd, as we already said, rule 7 A prescribes the conditions under which a certificate of registration can be issued and that authorises the incorporation of condition No. (ii} in the , certificate of registration.\n\nWe think thatf the reasoning of the High Court that s. 14A authorises only the imposition of conditions as to the manner in which the business in forward contracts can be carried on and that the section has nothing to, do with the commodities with respect to which forward contracts can be carried on is fallacious.\n\nWe cannot read any such limitation in the language of s. 14A nor can we find any indication in the other provisions of the Act to the contrary. , In other words, the power of the Commission is plenary as regards the nature of tht conditions which it can attach for regnlating and controlling the business of forward contracts of a particular Association.\n\nWe see no reason to think that specification of the commodities in respect of which business can be carried on is not a condition concerned with tbe regulation and control of the business relating to forward contracts.\n\nSections 15 to 18 authorise the Central Government to impose restrictions as to the commodities with respect to which business in forward contracts can be carried on.\n\nThese restrictions or prohibitions are general in character. and apply to all persons without any exceptions. These sections arc not concerned with restrictions or pro- .-hibitions as regards the commodities in respect of which business in • 'forward contract can be carried on by a particular association or its members.\n\nThe Commission alone is invested with the power to impose condition or prohibition with regard to the commodities in respect of which forward contracts can be entered into by a particular association.\n\nThese provisions can never clash with the power of the Commission to impose .conditions as respect the commodities in which the business of forward contract can be carried on. Recognition of the pow.e; o'. the . Commission to impose condition as respect the commod1tres m. which the business of forward contract can be carried on will not derogate in any manner from the general power of government to specify the commodities in relation to which the bu.s1css of. forward co.ntract can be carried on generally.\n\nThe C?mm1ss10n, e.mg a subordinate body, is expected to act in conformity with the prov1s10ns of sectrons 15 to 18. Co-existence of these powers in the manner indicated is warranted by the rule of harmonious construction.\n\n10 SC/75-2\n\nIt is not a relevant consi\\]eration that the imposition of condition as to the commodities in respect of which business of forward contract can be carried on would. have the effect; of curtailing the area of business of an association, for the very idea of setting up the Commission was to supervise and regulate the business of forward contract by im- B posing conditions subject to which alone the association can carry on business.\n\nConditions are nothing but qualification, restriction or limitation modifying or even destroying to a certain extent the right to carry on the business.\n\nThe commodities in which the association can carry on the business of forward contract is an integral part of its c business activity.\n\nThey are the subject matter or media for carrying on the business and specification of commodities in which business can be carried on is a condition sounding only in the realm of regulation and control of that business.\n\nWe therefore hold that Rule 7 A is intra vires the rule making power and that it was open to the Commission to impose condition D No. (ii) in the certificate of registration.\n\nIt must follm~ that the condi!ion impugned was valid and that the direction issued by the Commission to the respondent was justified.\n\nWe are glad to find that the view which we have expressed has been taken by the High Court of Allahabad in Union of India & E Another v. Bullion and Agricultural Exchange Ltd. (1), after considering the relvant decisions including the one under this appeal.\n\nWe set aside the order of the High Court and allow the appeal without any order as to costs.\n\nThere was no appearance for the respondents.\n\nThe Court acknow-· ledges its indebtedness to Shri Bishamber Lal, Advocate, for the assistance rendered by him as amicus curiae.\n\nAppeal allowed.\n\nV.P.S.\n\n(1) I.LR. [1972] 2 Allahabad 562.", "total_entities": 63, "entities": [{"text": "UNION OF INDIA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ANR", "offset_not_found": false}}, {"text": "S. RAJDHANI GRAINS & JAGGERY EXCHANGE LTD.\n\nAND OTHERS\n", "label": "RESPONDENT", "start_char": 25, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "M/S. RAJDHANI GRAINS & JAGGERY EXCHANGE LTD. AND OTHERS", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 100, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 118, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 135, "end_char": 158, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Forward Contracts (Regulation) Act", "label": "STATUTE", "start_char": 161, "end_char": 195, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 4(/), 6, 14A, 14B, 15 to 18 and 7A", "label": "PROVISION", "start_char": 248, "end_char": 286, "source": "regex", "metadata": {"statute": null}}, {"text": "Forward Contracts (Regulation) Act, 1952", "label": "STATUTE", "start_char": 367, "end_char": 407, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 6", "label": "PROVISION", "start_char": 566, "end_char": 575, "source": "regex", "metadata": {"statute": null}}, {"text": "Section\n\n14A(I)", "label": "PROVISION", "start_char": 1007, "end_char": 1022, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14B", "label": "PROVISION", "start_char": 1362, "end_char": 1368, "source": "regex", "metadata": {"statute": null}}, 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"gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(jj)", "label": "PROVISION", "start_char": 10968, "end_char": 10976, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(c)", "label": "PROVISION", "start_char": 11111, "end_char": 11123, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 2(0, 2(i), 2(m) and 2(n)", "label": "PROVISION", "start_char": 11166, "end_char": 11199, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter II of the Act", "label": "STATUTE", "start_char": 11577, "end_char": 11598, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 11665, "end_char": 11669, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "Chapter IIIA was inserted in the Act by Act", "label": "STATUTE", "start_char": 11998, "end_char": 12041, "source": "regex", "metadata": {}}, {"text": "Parliament found after watching the working of the Act for six years that the provisions of the Act", "label": "STATUTE", "start_char": 12056, "end_char": 12155, "source": "regex", "metadata": {}}, {"text": "Section 14A", "label": "PROVISION", "start_char": 12290, "end_char": 12301, "source": "regex", "metadata": {"linked_statute_text": "Parliament found after watching the working of the Act for six years that the provisions of the Act", "statute": "Parliament found after watching the working of the Act for six years that the provisions of the Act"}}, {"text": "sections 15 to 19", "label": "PROVISION", "start_char": 12595, "end_char": 12612, "source": "regex", "metadata": {"linked_statute_text": "Parliament found after watching the working of the Act for six years that the provisions of the Act", "statute": "Parliament found after watching the working of the Act for six years that the provisions of the Act"}}, {"text": "Chapter V of the Act", "label": "STATUTE", "start_char": 12928, "end_char": 12948, "source": "regex", "metadata": {}}, {"text": "Amendment Act, 1960", "label": "STATUTE", "start_char": 13308, "end_char": 13327, "source": "regex", "metadata": {}}, {"text": "Section 14B", "label": "PROVISION", "start_char": 13528, "end_char": 13539, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1960", "statute": "Amendment Act, 1960"}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 13585, "end_char": 13591, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1960", "statute": "Amendment Act, 1960"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 13734, "end_char": 13744, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1960", "statute": "Amendment Act, 1960"}}, {"text": "s. 18", "label": "PROVISION", "start_char": 13992, "end_char": 13997, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1960", "statute": "Amendment Act, 1960"}}, {"text": "Section 16", 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{"document_id": "1975_1_202_213_EN", "year": 1975, "text": "BHABHI\n\nSHEO GOVJND & ORS.\n\nApril 21, 1975\n\n[N. L. UNTWALJA ANDS. MURTAZA FA7AL ALI, JJ.J\n\nR epr('sentatio11 of People A ct-Election-!nspecfion of ln1llot papers- Princip!es.\n\nThe appellant \\Vas elected to the U.P. Legislative Assembly. The appellant defeated respondent No. 1 by a margin of 94 \\'Otes.\n\nThe respondent No. l in his election petition made an application for. inspection of the ballot papers on the ground that there were improper reception and rejection of votes. That the election staff was suffering from seriou<J physica1 strain as they had to work without any rest.\n\nThere \\Vere arithmetical mistakes in the counting. That the staff was drowsy and \\Vas dozing.\n\nThe respondent no. 1 made an application praying for a sample inspection of the ballot papers. He examined some \\Vitncsses and counting agents, and fifed some affidavits.\n\nThe appellant also produced some evidence.\n\nThe respondent did not give serial number of a single ballot paper which is <; aid to have been impfoperly accepted or rejected.\n\nNor did be file an applica1io11 for recounting of votes.\n\nThe High Court without going into the merits of the application ordered a samp-Je 'inspection of the balIDt paper.\n\nThe lfigh Court did not give any finding whether the evidence Dr the 01ateriat adduced by the respondent no. 1 was sufficient for the prin1a facic satisfaction of the High Court.\n\nHELD : An order for inspection could not be granted a.;; a matter of routine, but only under special circumstances.\n\nInspection of bat1ot paper should not be allowed in such a way so as to make a roving or fishin~ inquiry in order to disco, er material for declaring-.the election void. f205F-G, 206Dl\n\nThe following conditionss are imperative before. a Court can grant inspection or sample inspection of the ballot pepers :-\n\n(I) That it is important to maint1in the secrecy \\vhich is sacrosanct and should not be allowed to be frivolous, vague and indefinite allegations;\n\nof the ballot violated on\n\n{2) That before inspection is a1Jovved, the alJegations made against the elected candidate must be clear and specific and n1ust be supported by adequate statements of matCTial facts;\n\n(3) The Court must be prbna facie sati<; fied on the materials pro~ duced before the Court regarding the truth of the allegations made for a recount;\n\n(4) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry \\Vith a view to fish materials for declaring the election to be void; ancl i__\n\n(5) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prinio facie satisfaction of the Court regarding the truth of the allegations made for n r@count, and not for the purpose of.fishing out material~\n\n[230E-H, 231A-B]\n\n, -\n\n.Further held that what appeared to have weighed \\vith the High Court \\Vas the solitarv circumstance that the appc1lant had succeeded by a narro\\V m::i.rgin 0:nd thit was a sufficient ground for ordering sample inspection.\n\nThe Court. however was unable to ugrec \\\\ith this broad staten1ent of the la\\v by the High Curt because if a person is duly elected even by a narrow f\"\"\n\n. .\n\nBHABHI v. Sl!EO GOV!ND (Fazil Ali, J.) 203\n\nmargin of votes lhere is no presumption that there has been illegality or A irregularity in the election.\n\nThis is a fact which has t<>: be proved by .a person who challenges the election of the duly elected candidate.\n\nAfter all in a large democracy such as our's wheue we have a multip~1ty. system, \\Vh~1:e the numbe1 of voters is huge and diverse, where the voting JS free and air and where in quite a few cas.es the contet is. close and nee~ to neck, a marginal victory by a uccessful can<l1d_ate over .hlS nval .can omettmes trted as tren1endous tnumph so as to give a feehng of satJsfactlOn to the v1ctonous candidate.\n\nThe Court cannot lightly brush aside the succcs of .the duly .elected B candidate on an election petition b<ised on vague and 1ndefin1te allegations or frivolous and flimsy grounds.\n\n[212B-C DE]\n\nHeld further in the instant case, the High Court while passing the order of sample inspetion made no attempt to apply the above principles.\n\nThe High Court actually noticed some of the important decisions and yet did not apply them.\n\nThe High Court did not record any satisfaction.\n\nAllowing the appeal, the matter was remanded to the Hi&h Cour.t for disposing of . the application _for inspection of the ballot papers rn the light of the observattons made in the judgment.\n\n[205 D-F, 211 C-DJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 63 of 1975.\n\nAppeal by special leave from the Judgment and order dated the 20th September, 1974 of the Allahabad High Coun in Election Petition No. 1 of 1974.\n\nJ. P. Goyal, Pranab Chatterjee and G. S. Chatterjee, for the appellant.\n\nR. K. Garg, S. C. Agarwa/a and V. J. Francis, No.!.\n\nThe Judgment of the Court was delivered by\n\nfor respondent\n\nFAZAL ALI, J.---..:By virtue of an order dated December 20, 1974 Banerji, J., of the Allahabad High Court who was designated as the Election Judge passed an order granting the application of the respondent No. l for a sample inspection of the ballot papers. The order directed that a sample inspection of 20 bundles of 50 ballot F papers each of the votes counted in favour of the appellant may be taken out and examined along with the 5 bundles of the rejected ballot papers. It is against this order that the appellant has filed the present appeal by special leave and has assailed the order of the karned_ Sin.gle Judg~ on the ground that the !earned Judge has excr-\n\n~ISed his d1scret1on illegally and improperly ill allowing the sample !Ilspection. of the ballot papers without there being sufficient. proof of !] the allegal!ons made by the respondent in his petition for setting aside the election of the appellant.\n\nThe facts giving rise to the present appeal may be briefiv summarised as follows : \"\n\nThe appellant was el_ected to the U. P. Legislative Assembly from 218, Mubarakpur Const1tu.ency in the District of Azamgarh, U. P.\n\nThe last date of nommation for election to the said assemblv was January 24, 1974. The date of scrutiny was January 25 1974 and that of withdrawal January 28, 1974.\n\nThe poll was hld on February 26, 1964 and the counting of votes done on February 27 1974 The'result of the election was declared on February 28,' 1974. Th~\n\nA respondent filed an election petition before the Election Judge of the Allahabad High Court some time in March 1974. The appellant secured 19,728 votes while respondent No. 1 had secured 19,634 votes and thus the appellant defeated respondent No. 1 by a margin of 94 votes and was duly elected to the U .P. Legislative Assembly. In the petition filed by the respondent before the Allahabad High Court the res- B pondent in paragraph-8 of the said petition made a large number of allegations regarding the improper reception and rejection of votes and regarding wrong arithmetical counting of votes and acceptance of\n\nvotes which were void. The material facts with respect to the allegac\n\ntions were set out in paragraph-9 of the petition which broadly are • as follows :\n\n( 1) That the election staff engaged in the work of counting was suffering from serious physical strain as they had to work without any rest on that day as a result of which there were a number of arithmetical mistakes in the counting of votes.\n\n(2) That the staff had become drowsy and was actually\n\ndozing and could not efficiently discharge its function of counting the votes properly.\n\nAs regards the facts relating to improper rejection of valid ballot papers it is said that a large number of ballot papers in which valid votes had been marked for the petitioner (respondent No. 1) were declared invalid despite oral protests made by the counting agents of E the respondent. Similarly a large number of ballot papers had distinct marks of stamp in the column of the petitioner near the symbol of cow and calf and yet they were improperly rejected by the counting staff on the ground that there were no distinct marks. The respondent further alleged that there were 70 sllCh ballot papers which were wrongly rejected. It was also pleaded that a number of ballot papers F which had a valid vote for the petitioner were illegally rejected on the ground that there were some accidental mark made in the column of some other candidate which was not a mark of the stamp or a voting mark and the number of such ballot papers rejected was 50.\n\nFinally .it was said that a number of ballot papers which carried . valid votes for the petitioner were illegally rejected on the ground that there was no seal mark or there was no signature of the Returning G Officer on those ballot papers although it was far from the truth.\n\nSuch were said to be the obvious mistakes in the rejection of the ballot papers and the counting of votes which formed the sheet-anchor of the case of the respondent in challenging the election of the appellant.\n\nThe appellant in his written statement denied all the allegations mack in the petition.\n\nH While the election petition was being heard by the High Court an application was filed by the respondent No. l praying that a sampk inspection of the ballot papers may be allowed.\n\nIn suppcrt of this application some witnesses, counting agents of the respondent and other persons were examined and some affidavits were filed.\n\nThe appellant also produced some evidence. . The learned Judge has mentioned in his order that this sort of evidence was led before lnm\n\n. - ..\n\nBHABHI v. , SHEO GOVJND (Fazal Ali, !.)\n\nbut he has not at all given any finding on the credibility of the evidence.\n\nThe learned Judge further noticed very prominently that in respect of the allegations made that the counting of v.Jtes was wrong and the rejection of the ballot papers was improper, > the respondent filed no application for recounting of votes as provided by r. 63 of the Conduct of Election Rules, 1961.\n\nThe learred Judge also noticed that the respondent had not given serial numter of a single ballot paper which is said to have been improperly ac :epted or improperly rejected.\n\nThe Judge, however, allowed the application because he thought that the ends of justice required it. In this connection the learned Judge observed as follows:\n\n\"But before I advert to consider the election oet1t10n, the aftidavit and the oral evidence to decide whether there should be an order for the general inspection of the used ballot papers, I think it will be in the interests of justice to order a sample inspection of ballot papers counted in favour of respcndent No. 1 as also a sample inspection of the rejected ballot papers in this case.\" .\n\nThese observations clearly show that the learned Judge made no attempt at all to give any finding whether he was prima facie satisfied regarding the credibility of the evidence or the materials adduced before him but ordered a sample inspection in order to test the validity of the allegations made by the respondent. It seems to us that in passing this order the learned Judge, while noticing some of the leading cases of this Court on the point which be has cited in his judgment, viz., Ram Sewak Yadav v. Hussain Kami/ Kidwai & Ors.(1 ) Dr. Jagjit Singh v. Ciani Kartar Singh and others;( 2 ) Jitendra Bahadur Singh v.\n\nKrishan Behari & Ors;(') and Sumitra Devi v.\n\nShri Sheo Sha11kar Prasad Yadav & Ors.(4) bas made no attempt to apply the principles laid down in those cases to the facts of the present case.\n\nBefore, however, dealing with the order passed by the ]earned F Judge it may be necessary to refer to a number of authorities of this Court on the circumstances under which an inspection of the ballot papers, or for that matter a sample inspection, can be allowed. l11 the case of Ram Sewak Yadav ( supr11) the matter was considered at great length and this Court pcinted oqt that an order for inspection could not be granted as a matter of routine but only under special circumstances and observed as follows : G\n\n\"An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions arc fulfilled :\n\n(i) that the petition for setting aside an election contains H an adequate statement of the material facts on which the petitioner relies in support of his case: and\n\n(l) [19641 6 S.C.R, 238.\n\n(2) A.I.R. !966 S.C. 773.\n\n(3) [ 1970) l S.C.R. 852.\n\n(4) [1973] 2 S.C.R. 920.\n\n(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.\n\nBut an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.\n\nThe case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted.\n\nBut a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or reiection of votes will not be sufficient to support an order for inspection.''\n\nTwo years later in Dr. Jagjit Singh's case (supra) this Court observed on the facts of that q15e that the discretion to allow inspection of ballot papers should not be used in such a way so as to make D a roving or fishing inquiry in order to discover materials for declaring the election void. In this connection, this Court made the following observations :\n\n\"The true legal position in this matter is no longer m doubt.\n\nSection 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Cl. (a), the powers which are vested in a Conrt under the Code of Civil Procedure when trying a suit, inter alia. in respect of discovery and inspection.\n\nTherefore, in a proper case, the Tribunal can order the inspection of the ballot boxes ....... . . . . . . . . . . . . . . . . . . . . . . An application made for the inspection o! ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes shonld be inspected or not.\n\nIn dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting.\n\nIt may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care musl be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void.\"\n\nIn Jitendra Bahadur Singh's case\n\n(supra) the order of the Election Judge granting inspection of the ballot papers was reversed by this Court because the Court thought that the learned Judge had not followed the essential conditions laid down before granting the\n\n....\n\nBHABHI v. Sl!EO GOVIND (Fazil Ali, J.) 207\n\nprayer for inspection of the ballot papers. In that case the Court A held that the allegations were vague and indefinite, no material fact was pleaded and further that the petitioner was . present at the time -0f counting and yet he did not tal<e any objection regarding the ilkgal\n\nrejection of the votes.\n\nJn this connection Hegde, J., speaking for .the Court laid down the following principles :\n\n( 1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case; and\n\n(2) the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.\n\nThe cases of Ram Sewak Yadav and\n\n.(, supra) were referred to and relied judgment.\n\nDr. Jagjit Singh mentioned upon by Hegde, J., in bis\n\nAnother case which appears to be in point and which was the ;; beet-anchor of the argument of the learned counsel for the respondent is the case of Sashi Bhusan v. Prof. Ba/raj Madhok & Others.( 1 ) It is true that a sample inspection was allowed in that case.\n\nBut, in our opinion, it was so done because of the special facts of that case.\n\nThe allegation of the respondents in that case was that many ballot papers were chemically treated so that the mechanically stamped n:; a, rks in favour of the successful candidates by using invisible ink emerged and the mark actually put at the time of polling disappeared after a few days.\n\nThis was undoubtedly an allegation of a very serious nature, which, if true, would have shaken the entire confi- dence of the people in the electoral process and would have seriously impaired our democratic system.\n\nIn these circumstances this Court beld that it was not only necessary but in. public interest that the allegation should be thoroughly examined so as to maintain confi- <lence of the people.\n\nJn this connection, Hegdc, J., while delivering the judgment of the Court, observed as follows :\n\n\"It is true that merely becanse someone makes bold and comes out with a desperate allegation that by itself should not be a ground to attach value to the alleirntion made.\n\nBut at the same time serious allegations cannot be dismissed summarily merely because they do not look probable.\n\nPrudence requires a cautious approach in these matters. In all these matters, the court's aim should he to render complete justice between the parties.\n\nFurther, if the allegations made raise issues of public importance areater care and circumspection is necessary. ' \"\n\nThese eases have peculiar features of their own.\n\nNo sneh case had come up for decision earlier.\n\nHence decided\n\n0) [1972]2 $.C.R. 177.\n\ncases can give little assistance to us.\n\nIn a matter like allowing inspection of ballot papers, no rigid rules have been laid down, nor can be laid down.\n\nMuch depends on the facts of each case.\n\nThe primary aim of the courts is to render complete justice between the parties.\n\nSubject to that overriding consideration, courts have laid down the circumstances that should weigh in granting or refusing inspection.\n\n.. .. .. .. . . .. .. .. .. .. .. .. The ratio of that decision is that the inspection of ballot papers should be allowed only when the court thinks that it is necessary in the interests of justice to do so. In that case this Court did not lay down any hard and fast rule as to when an inspection of the ballot papers can be allowed.\"\n\nIn the instant case, however, the allegations are of a different kind.\n\nThey relate only to the mistakes in counting and improper rejection of votes.\n\nThey are not of a sweeping pattern as in the case aforesaid.\n\nIn these circumstances, therefore, the ratio laid down in Sashi Bhushan's case (supra) cannot be pressed into service for the purpose of supporting the order of the learned Judge.\n\nIn the case of Sumitra Devi (supra), Mathew, J., after reviewing the previous authorities of this Court, held as follows :\n\n\"In the case at hand, the allegations in the election petition were _vague and the petition did not contain an adequate statement of the material facts.\n\nThe evidence adduced by the appellant to prove the allegations was found unreliable.\n\nNo definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers.\n\nA recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the_ counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection.\"\n\nIn S. Raldev Singh v. Teja Singh Swatantar (dead) & Ors .. ( 1) Krishna Tyer, J., remarked as follows :\n\n\"Coming to the facts of this case. we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist.\n\nAlthough we are free to admit that an imagmative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a fulI recount if serious errors were found, we are inclined to agree with the High Court. there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected.\"\n\n-------- ·---------------------- (1) Ciil Appeal No. 233 of 1973 deoided on 24-1-1975.\n\n' ' -.\n\nBHABHI v. SHEO GOVJND (Fazal Ali, !.) 209\n\nJn Be/iram Bhalaik v. Jai Behari Lal Kachi and Anr. (1) Sarkaria A ; ., speaking for the Court, observed as follows :\n\n\"Since an order for a recount touches upon the secrecy of the ballot, it should not be made lightly or as a matter c\\f course. Although no cast iron rule of universa.l application can be or has been laid down, yet, from a bcadroll of the decisions of this Court, two broad guidelines arc discernible : that the Court would be justified in ordering a re{; ount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of Irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.\"\n\nIn Suresh Prasad Yadav v. Jai Prakash Mishra & Ors.(') while summarising the principles laid down by this Court from time to time in granting prayer for inspection of ballot papers, the Court adumbcrated the circumstances in which a prayer for inspection of ballot papers could be considered and observed as follows :\n\n\"Before dealing with these contenticms, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course.\n\nThe reason is twofold.\n\nFirstlv such an order affects the secrecy of the ballot which und\"er the law is not to be lightly disturbed.\n\nSecondly. the Rules provide an elaborate procedure for counting of ballot papers.\n\nThis procedure contains so many statutory checks and effective safeguards against trickery, n1istakcs and fraud in counting, that rt can be called almost fool-proof.\n\nAlthough no hard and fast rule can be laid down, yet the broad guideli.nes, as discernible from the decisions of this Court, may be indicated thus : ·\n\nThe Court would be justified in ordering a recount ot the ballot papers, only where :\n\n\" (I) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;\n\n(2) On the basis of evidence adduced such allegations are prima fade established, affording a good ground I\n\nfor believing that there has been a mistake in count- ing; and\n\n( 3) The Court trying the petition is prim a fade satisfied that the making of such an order is imperatively\n\n(I) A.l.R. 1975 S.C. 283.\n\n(2) A.l.R. 1975 S.C .. 376 .\n\nnecessary to decide the dispute and to do c-0rnplctc\n\nand effectual justice between the parties.\"\n\nThese principles were reiterated in Chanda Singh v. Ch. Shiv Ram Varma and orhers,(1) where speaking for this Court, Krishna Iyer, J., observed thus :\n\n\"On all hands, it is now agreed that the importance of the secrecy of the ballot must not be Jost sight of, material facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence.\n\nWe would only like to stress that in the whole procoss. the secrecy is sacrosanct and inviolable except where strong prima facie circumsanccs to suspect the purity, propriety and legality in the counting is made out by definite factual averments, credible probative material and good faith in the very prayer.\n\nWe may even say that no winning camltdate should be afraid of recount and, conditions a; :hey are, a sceptical attitude expecting the unexpected ma v be correct, informed of course by the broad legal guiddines already set out.\"\n\nLastly in Ch. Manphul Singh v. Ch. Surinder Singh(\") the Court upheld the order of the High Court allowing inspection of 'ballot papers because the High Court had given a finding that the evidence\n\nof the witnesses was sufficient to prove the allegation of impersonation, in that case.\n\nThe Court further held that the High Court did not act arbitrarily in granting the prayer for inspection.\n\nThus on a close and careful consideration of the varivus authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers :\n\n(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;\n\n(2)\n\n(3)\n\n(4)\n\n(5)\n\nThat before inspection is allowed, the allegations made against the elected candidate must be elem and specific and must be supported by adeouate statements of material facts;\n\nThe Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;\n\nThat the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;\n\nThat the discretion conferred on the Court shotJ!d not be exercised in such a way so as to enable the\n\n(1) AIR 1975 SC 403.\n\n(2) AIR 1975 SC 5J1.\n\n;;.. ,.,. - --,\n\nBHABH! V. SHED GOVIND (Fazal Ali, J.) 211\n\napplicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be A\n\nvoid; and\n\n' (6) That on the special facts of a given case sample inspection may be-ordered to lend further assurance to the prima facie satisfaction of the Court regardmg the truth of the allegations made for a recount, and not for the purpose of fishing out materials.\n\nH all these circumstances eriter into the mind of the Judge and he is • satisfied that these conditions are fulfilled in a given case, the exercise ... of the discretion would undoubtedly be proper .\n\nIn the instant case we find that the learned Judge while passing c .• • the order of sample inspection made no attempt to apply the principies mentioned above to the facts of the present case. What is more y important is that the Court actually noticed some of the important decisions of this Court which we have discussed and yet it did not try to test the principles laid down on the touchstone of the allega- D tions and the material' facts pleaded by the respondent. Another error into which the learned Judge had fallen was that he did not realise that by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry in order to fish out materials to justify his pica in order to declare the election to be \\'oid-a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a E sense of instability and uncertainty amongst the duly elected candidates.\n\nThirdly, while the learned Judge has observed that. the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary F for the ends of justice.\n\nSuch an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had -\n\nproduced some affidavits before him in support of their pleas, the • learned Judge has not at all tried to appreciate or consider the cvidencc in order to find out whether it was worthy of credence.\n\nJn the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of G ' the. respondent.\n\n• Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all.\n\nIu the first place although the counting agents of the respondent were present , at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules, H 19? 1.\n\nThe nature of the allegations made by the respondent in his peht10n as alluded to above was such as could have been easily venfied at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961.\n\nSecondly the learne~ Judge overlooked tl1at the respondent had not given the material particulars of\n\nA the facts on the basis of which he wanted an order for sample inspection of ballot papers.\n\nNo serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent.\n\nEven the segment in which the irregularity had occurred was not mentioned in the petition.\n\nWe, B however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection.\n\nWhat appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a su!Ucient 'ground for ordering sample inspection.\n\nWe arc, however, unable C to agree with this broad statement of the Jaw by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election.\n\nThis is a fact which has to be proved by a person who challenges the election of the duly elected candidate.\n\nAfter all in a large democracy such as our's where we have a multi-party\n\n. -\n\nD system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidate.\n\nThe Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations .E or frivolous and flimsy grounds.\n\nThe learned counsel for the respondent submitted, however, that in view of the amended provisions of the Representation of the People Act and the rules made thereunder the question of maintenance of secrecy has now become obsolete, because under the per- F sent system which was in vogue at the time when the election of the appellant was held it is difficult to find out as to which voter voted < for the candidate. It is, however, conceded by the learned counsel\n\nfor the respondent that if the counter-foils which are sealed and - kept separately are made to tally with the ballot papers, then it can 1 be ascertained with some amount of precision as to which voter voted for whom.\n\nThere are other methods also, which, when adop- G ted would put the secrecy of the voting in jeopardy. In these circumstances, therefore, the question of maintenance of secrecy docs not become obsolete as argued by Mr. Garg appearing for the respondent.\n\nWe have adverted to a Jong course of decisions of this • Court where it has been insisted on the maintenance of the secrecy of the ballot and the new methodology adopted by the Act has not made any material change in this concept.\n\nLastly it was submitted by the counsel for the respondent that the learned Judge had to satisfy himself whether or not a case had been made out for allowing sample inspection and if he had exercised his discretion one way or the other, this Court should not lightly interfere with that discretion. This argument, however, is wholly untenable for the reasons we have given in holding that the order of the\n\nBHABHI v. SHEO GOVIND (Fazal Ali, J.)\n\nlearned Judge is not in accordance with the law.\n\nThe learned Judge has not at all applied the principles laid down by this Court in the .cases referred to above. It is manifest that the Court has the un- .doubted power to grant prayer for inspection, but this discretion has to be exercised according to the sound and sacrosanct principles laid .down by this Court. In the instant case, the discretion has been exercised by the learned Judge in an arbitrary manner without the\n\napplication of the mind to. the material facts and circumstances as .discussed above.\n\nFor the reasons given above, we allow this appeal, set aside the .order nf the learned Single Judge of the Allahabad High Court dated December 20, 1974 and remand this case to the learned Election Judge for disposing of the application of the respondent for inspection of the ballot papers in. accordance with the law and in the light Of the observations made above.\n\nThe appellant will be entitled to hls costs in this Court.\n\n.P.H.P .\n\nAppeal allowed .", "total_entities": 11, "entities": [{"text": "BHABHI", "label": "PETITIONER", "start_char": 0, "end_char": 6, "source": "metadata", "metadata": {"canonical_name": "BHABHI", "offset_not_found": false}}, {"text": "SHEO GOVJND & ORS", "label": "RESPONDENT", "start_char": 8, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "SHEO GOVIND & ORS", "offset_not_found": false}}, {"text": "N. L. UNTWALJA ANDS. MURTAZA FA7AL ALI, JJ", "label": "JUDGE", "start_char": 45, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 9991, "end_char": 10022, "source": "regex", "metadata": {}}, {"text": "[1973] 2 S.C.R. 920", "label": "CASE_CITATION", "start_char": 12584, "end_char": 12603, "source": "regex", "metadata": {}}, {"text": "Section 92", "label": "PROVISION", "start_char": 13810, "end_char": 13820, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13956, "end_char": 13983, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "AIR 1975 SC 403", "label": "CASE_CITATION", "start_char": 26070, "end_char": 26085, "source": "regex", "metadata": {}}, {"text": "AIR 1975 SC 5", "label": "CASE_CITATION", "start_char": 26092, "end_char": 26105, "source": "regex", "metadata": {}}, {"text": "Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 29224, "end_char": 29255, "source": "regex", "metadata": {}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 31273, "end_char": 31305, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1975_1_214_218_EN", "year": 1975, "text": "K. P. POUI OSE\n\nSTATE OF KERALA & ANR.\n\nApril 21, 1975\n\n[A. ALAGIRISWAMI, P. N. BHAGWATI AND P. K. GOSWAMI JJ.]\n\nArbitration Act, s. 30 (a)-Scope of.\n\nFor the construction of three overhead reservoirs tenders were invited.\n\nThe appellant was the successful tenderc.r for the work. The notification inviting tenders gave a description of the soils at the places of constn(ctions.\n\nSometime later, however, the Research Institute of the State Government recommended a different mcxie of foundation in respect of one reservoir and the department accordingly gave instruction to the appellant to adopt the: process recommended by the Research Institute.\n\nThe appellant executed the- \\Vork in accordance with the recommendations of the Research Institute and claimed a higher payment on the ground that the work: done by him 'W3.S not included in the original design because wh_en he submitted his tender he assumed the site conditions to be as represented in the Schedule to the noti~ fication. The Department, having refused the claim, the di.<>pute was referred to Arbitration under cl. 34 of the tender notification. The Chief Engineer who v1as the sole Arbitrator ga.ve a. speaking order based on an exlID.ination of the d0cumcnts.\n\nThe High Court. S('t aside the judgment of the Subordin::!tc Judge and resor cd the or(k:· of the Arb!tralor.\n\nOn appeal to this Court it was contended that the Arbitrator wa.'i' gullty of legal misconduct in conducting the procecdin2s in that the material documents were absolutely ignored by the Arbitrator, resulting in misc.;'lrria.e of justice.\n\nAllov.'iog the appeal.\n\nHELD : Under s. 30(a) of the Arbitration Act an award can be set aside \\Vhen an Arbitrator has misconducted himself .or the proceedings. Misconduct under s. 30(a) has not a connotation of moral lapse. It compri<; es Jegal misconduct which is complete if the Arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material documents which throw abundant light on the controversy to help a just and fair decision. It is in this sense that the Arbitrator has misconducted the proceedings in thi! case.\n\nJn the instant case the two documents which \\he Arbitrator failed to consider were material docun1ents to arrive at a just and fair decision to resolYe the controversy between the Department and the appellant. In the background of ihc controversy in this case even if the Department did not prcxlucc these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including those two documents for the purpose of a just decision.\n\nThe a'vard, therefore, suffers from a manifest error apparent ex facie.\n\n[218ABC]\n\nH Ov1L APPELLATE JURISDICTION Clv1L APPEAL No. 1485 OF 1974\n\nAppeal by special leave from the judgment and decree dated 29-1-73 of the Kerala High Court iu A.S. No. 357 of 1972.\n\nS. V. Gupte, C. J. Ba/akrishna11 and A. S. Nambiar. for the appellant.\n\n- •\n\n• . \"\"\n\nK; P. POULOSJl '\" KERAT, A (<Sos\\vo111i, J.) 215 .\n\nT. S. Krisf111a111urt/1y Iyer and K. R. Nambiar, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.-This is an appeal by special leave against the judgment of the Kcrala Hig)l Court setting aside the judgment of the Subordinate Judge, Ernakulam .and restoring the award of the Arhi- B trator who had earlier refused th{1 claim of the appellant.\n\nThe appellant (briefly the contractor) was a successful tenderer for conmuction af three zonal R.C.C. Overhead Reservoirs, two in Mate.ncherry and one in Cochin, in connection with the Ernakulam Mattencherry Water Supply Scheme.\n\nIn the schedule annexed to the noUfication invitin)); tenders under the heading 'Site', it was stated that\n\n\"the soil at the site for Reservoir No. 1 and Resetvoir No. 2 is loose clay and for Reservoir No. 3, sandy\". The tenderer was to execute an i, grecment on a stamped paper before commencing work. It appears later on the Kerala Engineering Research Institute, Poochi, Soil Mechanics and Foundation Division (briefly the Research Institute) submitted a report (Ext. P. JO dated September 14, 1965) that the sub-soil at the three places chosen as sites for the reservoirs upto 16 m. showed that the top soil was sancl, the middle layer clay, and the bottom layer, silty sand or sand.\n\nIt was stated that the clay found at the three places was of a highly compressible nature and hence pile, foundation wa5 preferable and that as the top strata was sandy, jetting had to be resorted to for driving the piles through this strata. After receipt of the opinion of the Research Institute, respondent No. 2 (herein\n\nafter to be described as the Department) gave instructions to the con tractor to adopt the process of jetting for driving piles for the tank at Thoppumpady which is .alone in dispute in this case. On October 7. 1965, the Chief Engineer after scrutinising the pile design of the contractor \\\\Tote ra him, inter alia, as follows :\n\n\"The piles as per design submitted with raft like cap may be\n\nadapotcd for tank at Thoppumpady where the length of pile suggested by the research division is in the region of 30 ft . . . . . .. . . ... ... . Jetting has to be resorted to in the top strata where sandy layer is met with .... Your state.ment that piles\n\nof more than 30 ft. length is very difficult to be driven in G Ernakulam is not quite convincing to the Department.\n\nAny how a decision will be taken on this only after ascertaining~ the details regarding the practical difficulties if any from agencies actually engaged in such type of works in the locality.\n\nMeanwhile you may please execute the agreement and H start the work on the Reservoir at Thoppumpady receiving further instructions from Executive Engineer, Public Health,\n\nAlwaye\" (Ext. P. I). ,\n\nOn February 21, 1966, the contractor wrote to the Executive Engineer informing him that as per instructions of the Research Institute am\\\n\n10 SC/75-15.\n\nA site conditions he provided jetting arrangements for dri, ing the piles although the process o:f jetting was not included in his tender.\n\nHe enclosed the details of expenditure on that account and mentioned that for the pile casting he used extra reinforcement for additionally strengthening the head of piles due to the site condition. He pointed out that this was not included in his original design.\n\nB The sum and substance Qf the contractor's grievance< was that he assumed the site condition to be as represented in the schedule to the notification inviting tenders and submitted his original design on that bas.is and since, however, the site condition was found to be different and on the advice of the Research Institute jetting had to be resorted to involving extra expenditure be was entitled to claim additional C amount for the work of jetting. The Department, however, refused\n\n the claim which led to the arbitration under clause 34 of the tender notification. The Arbitrator was the Chief Engineer. It appears tl1e award was based on examination of documents and after heating arguments of the parties.\n\nD The award with which we are concerned is a speaking one a!ld gives the reasons for the decision against the contractor. Mr. Gupte, the learned counsel for the appellant submits that the Arbitrator was guilty of legal misconduct in conducting the proceedings.\n\nHe submitted that two very material document_s, Exts. P. l1 and\n\nP. 16, were absolutely ignored by the Arbitrator resulting in miscarriage E of justice. On the other hand. r. Krishnamurthi Iyer submitted that these documents were not even marked before the Arbitrator; they were marked only before the Subordinate Judge.\n\nAccording to him, therefore, there is no foundation for the grievance.\n\nWe have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ext. P. 11 and F Ext. P. 16 are material documents to arrive at a just and fair decision to resolve the controversy. between the Department and the contractor.\n\nJn the bac!cground of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Exts. P. 11 and P. 16 for the purpose of a just decision. Ext. P. 11 G dated September 8, J 966, is a communication from the Superintending Epgineer to the Chief Engineer with regard to the objections raised by Audit in connection with the construction of the reservoirs.\n\nThe following extract will explain the position then taken by the Department:-\n\n\"The contention of the Accountant General that jetting was resorted to by the contractor to facilitate the driving of the piles is not correct. Had it not been for jetting, it would not have been possible for the piles to reach the required -depth of 30', passing through sandy strata and we would have been constrained to stop with a smaller depth viz., upto the point of refusal for penetration of the pile by , hammering. It was, therefore, in the interest\n\n. -\n\n• • ,\n\nK. iP. POULOSE v. KERALA (Goswami, !.) 217\n\nof the work that jetting was insisted upon by the Depart-\n\n. A mcnt for pile driving.\n\nThe contractor had lo resort to jetting under instructions from tbe Departmnt. ·\n\nT)lc Accountant General has stated that the department is not bound to pay extra for adopting the method of jetting for pile drivi11g. This does not appear correct since the method H of jetting was adopted in the interest of the department in view of the sandy stratum obtaining at the site as against the indication given by the department that the soil is clayey upto a depth of nearly 200 ft. No doubt, the contractor was asked to ascertain the nature of the soil; but this docs not imply that he was to conduct exploratory borings to confirm the classification giveli. by the depart- C ment in the tender within the short span of time available for submitting tenders\".\n\nEll!lier also on July 25, 1966, as per Ext. P. 16 the Executive Engineer had written to the Chief Engineer whcrefrom paragraph 4 is revealing : D\n\n\"Even though while inviting tenders for the work there was a condilion that the tenderer should examine the soil conc!ition it was not expected of them to do soil testing in detail within the period available to them to tender for the work. A clear indication regarding the nature of the strata that is likely to be met with was also furnished at the time of inviting tenders.\n\nAfter complete soil investigation the strata was found to be different from that furnished by the department and so in my opinion technical specification has changed.\n\nIn the circumstances jetting done by the contractor can be considered as an extra item\".\n\nWe now come to the Award.\n\nAlthough the Arbitrator has held that \"jetting, however, is not an authorised extra covered by the agreement\", he has made the following significant observation which is inconsistent with his conclusion that the contractor has no right for extra payment for the jetting :\n\n\"The Chief Engineer has rejected the claims of the contractor on grounds of non-inclusion of this (jetting) in the agreement which was executed subsequent to the direction issued by the department to adopt jetting. The Chief Engineer's decision totally ignores the next sentence in that letter 'Meanwhile you may execnte the agreement'.\n\nBy this sentence the issue of extra paylhent for jetting is left open even after the execution of the agreement\".\n\nIf the above is the conclusion of the Arbitrator, rejection of the claim on the ground that ''jetting, however, is not an authorised extra covered by the agreement\" cannot be anything but rationally inconsistent.\n\nThe award, therefore, suffers from a manifest error apparent ex facie.\n\nA Under section 30(a) of the Arbitration Act an award can be set aside when an Arbitrator has misconducted himself or the proceedings.\n\nMisconduct under section 30(a) has npt a connotation of moral lapse.\n\nIt comprises legal misconduct which is complete if the Arbitrator on the face of the awattl arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material B documents which throw abundant light on the controversy to help a just and fair decision. It is in this sense that the Arbitrator has misconducted the proceedings in this case.\n\nWe have, therefore, no hesitation in setting aside such an award. \"Jn the result the judgment of the High Court is set aside and that of the Subordinate Judge is restored.\n\nThe award of the Arbitrator thus stands quas)1ed. The Arbi- C tt11tor will complete the proceedings after considering all the relevant documents including Ext. P. 11 and Ext. P. 16 after giving opportunity to the parties.\n\nThe appeal is allowed with costs.\n\nP.B.R.\n\nAppeal allowed.\n\n. -\n\n• - •", "total_entities": 11, "entities": [{"text": "OSE\n\nSTATE OF KERALA & ANR", "label": "RESPONDENT", "start_char": 11, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA & ANR", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 57, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "A. 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{"document_id": "1975_1_219_227_EN", "year": 1975, "text": "G. V. GUNAYYA CHEITY & ANR\n\nV. DASARATHARAMAJAH & ORS.\n\nApril 21, 1975\n\n[A. ALAG!R!SWAM!, P. N. BHAGWAT! AND P. K. GOSWAMI, JJ.) B\n\nA ndhra Pradesh Agricultural Prvduce and Live-Stock Markets Act_. 1966,\n\ncl. (iv) of sub-sec. (1) of sec. 5 and proviso to cl. (ir), and section 7 and 2z.!._tirfarket comniiJtee, constitution of-1Uen1bers . representing traders to be elected, bur they are to be nominated by Govern1nent H1heri 111arket contniittee is constituted for the first thne-1\\Tornir.ation of menibers reprcsentin;: tradl?rs to the newlv constituted fnarket cot11111ittee after sttpersession, if - C legal. •\n\nThe Governn1ent, by a notificalion issued under sec .. 3, ub-sec. (3) of the Andhra Pradesh Agricnltural Produce and Live-Stock ?lfarkets 1\\ct, 1966, declared the area compried in Machilipatnam, Bandar and Divi taluka to be\n\nnotified area for the purposes of the Act. Th.is waS .follO\\\\'ed by a notification dated 30th October, 1969 constih1ting a i\\larket Con1mittee for the notifie4 area under s. 4, sub-s. (1) of the Act. The Market Committee was to con- D sist of twelve men1bers to b.e appointed in the n1anner set out ins. 5, sub-s. (1) -0f the Act. Six out of these twelve members \\\\'ere nominated hy the Go\\'c1nment from among . the gro\\vcrs of agricultural produce and owners of livestock undef s. 5, snb-s. (1), cl. (i), two were nominatd by the Govcrnn1ent from among traders under proviso to s. 5 sub-~. (1) cl. (iv_) and the Agriculh1re Extension Ollicer. M'ovva was nom.inated by the Government as dcpartn1ental representative under s. 5, snb-s. (1), cl. (iii)(a).\n\nThe Chairmcin of the l\\Iarket Comn1ittee was elected on 24th January, 1970. Jn. consequence of the E judgment of the High Court of _Andhra Pradesh in Donde Ran1a Rao v. State A.I.R. 1971 Andhra Pradesh 353), the Government superseded 1he Market Committee. for a pcr'iod of six months on the ground that it was not competent to perform the duties imposed on it by or _un'der the Act. The initial period of \"Six months for which the Market Comn1ittee v:as. superseded \\Vas further extent.led and just before the expiration of the extended period of supersession, the Government made an order dated 7th December, 1972 constituting a f!eW l\\.!arkct Committee by nominating six persons out of growers of agric, ultural produce and F owners of livestock under s. 5, sub-s.(1), cl.(i), the President of the Diviseema Cooperative Marketing Society, Avanigadda under s. 5, sub-s. (1), cl. (ii), the Agricultural Extension Officer. fovva as departmental representatives under s. 5, sub-s. (1 ), cl. (iii) (a) nnd three persons representing traders under the proviso to snb-cl. (iv) of s. 5, sub-s. (l). Though Divi taluk formed pa'ft of the notified area, no grower or trader fom Divi Taluk _was nominated 'On the Market Committee; all the six representatives of growers belonged to Badar Taluka \\Vhile nll the three representatives of traders belonged to Machi!ipatnam taluk. Respondents Nos. 1 and 2, who we'fe two of the traders from G Divi Taluk, therefore, filed Writ Petition No. 1693 of 1973 in the High Court of Andhra Pradesh cha1lenging the validity of the order dated 7lh December, 1972 in so far as it nominated 'fepresentatives of traders on the A-Iarket Con1mittee under the Proviso to cl. {iv) of s11b-s. (1) of s. 5. The argun1ent of\n\nrepondent~ Nos. 1. and 2 was that it \\vas the main part of cl. (iv) of sub-s.(J) of s. 5 \\Vh1ch app!Ied and not the Proviso and, therefore the Government \\Vas not entitled to nominate representatives of traders but tbev were liable to be elected by traders licensed. under s. 7, sub-s. (1) from amo-Ilgstthemselves. The learned Single Judge of the High C.ourt dismissed the Writ.. Petiiion. Thereupon H Respondents 1 and 2 prefe1Ted nn appeal under cl. 15 of the Letters Patent to a Division Bench of the High Court.\n\nThe Division Bench disagreed \\Vith the view taken by the learned Singie Ju.dge and. held that when the Government constituted the new ~.farket Committee by It~ orde'f dated 7_th December, 197? on !he expiratiri.n of the pP.riod of supcrsess1on of the earher Market Comm1tteei it did not constitute a new\n\n. - \"*\n\n_ .. ,\n\nSUPREME COORT REPORTS [1975] SUPP. s.c.n.\n\nA J\\Iarkct Committee for the first time, and therefore, the case \\Vas governed., not by the proviso, but by the main pmt of s. 5, sub-s. (1), cl. (iv) and the order dated' 7th .December, 1972 was invalid in so far as it non1inatecl three members from among traders purporting to act under the proviso to s. 5r sub-s. (1), cl. (iv). The appellant thereupon brol!ght the present appcfll ¥.rfth\n\nspecial leave obtained from this Court.\n\nDi.smissing the appeal ,\n\nlfELD: The main part of cl. (iv) of sub-s. (1) of s. 5 enacts t11at, as a general rule, members representing traders are tobe elected ·\"bythe persons licensed under sub-s.(1) of s. 7 in the notified area from an1ong then1selves\"'.\n\nBut the licence contemplated under sub-s. (1) of s. 7 is a licence to be granted by the Market Committee, and therefore, it must follow a forJiori that \\Vhen a market comn1.ittee is to be constituted for the ffrst time, there wouJd be no \"persons licensed under sub-s. (1) of s. T\" in existence who could ekct members on the Market <::ommittee under the main part of cl.(iv) of sub-s-(1) of s. 5. That is \\Vhy the proviso was enacted to deal with such a sit11ation, it says that \\\\hen -a !\\1arket Committee is being constituted for the first time, the clectiYe meth<Xl being obviously inapplicable, n1cn1bers reprcscn_ing traders shaU\n\nbe nominated by the Government in the manner set out there. The !tlarket Con1mittee °\"''hich is constituted by the Government on the expiration of the period of supersession _must necessarily be a new market committee 1 11S-a-vis the earlier one which is superseded. But that does not mean that it \"\" a market comrnit_tee constituted for the first time. lt would indee<t be doing violenceto the language of the proviso to say that such a market con1mittee is one constituted for the first time for a notified area, when there \\Vas already an ear lier market committee constituted for the ame notified area, though it \\Vas subsequently superseded. The proriso to cl. (iv) of sub-s. (1) of s. 5 ha.I_,\n\ntherefore, no application ant.I the Government \\Vas not entitled to on1inare members representing traders on the Market Committee conslitutecl hy it under the order dated 7th December. 1972. It 'vas the main part of cl. (iv) of sub-s. (I) of s. 5 which applied. [225H, 226ADE, GH 227DHF]\n\nClVIL APPE'Ll~ATE JURISDICTION : Civil Appeal No. 1731 of 1974\n\nAppeal by special leave from the judgment and order dated 27-8-74 of the Andhra Pradesh High Court in Writ 'Appeal No. 716 of 1973.\n\nS. V. Gupte, A. V. Rangam and A. Subhashini, for the appellant.\n\nA. Subba Rao, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-This appeal, by special leave, r, a, iscs a very short question of construction of ertain provisions of the Andhra Padesh Agricultural Produce and Live-Stock Markets Act, 1966 (heremafter referred to as the Act). The narration of a few facts giving rise to the appeal would help to appreciate the question which arises for II determination, but it would be convenient first to refer to the relevant provisions of the Act before we recapitulate the facts.\n\nThe Act is a species of legislation \\vhich has now been enacted in almost all States of India with a view to providing satisfactory conditions for the growers of agricultural produce to sell their produce on equal terms and at reasonable prices. Section 2 gives definitions of the\n\n. -\n\n.. -\n\nG. v. GUNAYYA CHETTY ir. v.· DASARATHARAMAIAH (Bhagwati, J.) 221\n\nvarioui terms used in the Act, while sec; 3 provides for issue of notification by the Govemmelit declaring a spi!tific. area \"to. be a notified area for the putposes· of this Act in respect o'f any agrii:nltural produce, livestock and products' of livestock. Then comes s. 4, which says in sub-s. (1), which is the only sub-section material for our purpose :\n\n\"The Government shall. constitute, by poti.fication, a, market\n\nwrninittec , for every notifiea area from such Jlate as may be specified in the. notification and the matl>et committee so constituted. hall be a body corporate by such name as the Government may specify in the said notific<1.tion, having perpetual successiop. and a common seal with power to acquire, bold and dispose of property and may, by its corporate name, sue aµd. be sued.\"\n\nT11e c.ornposition of. market committee is laid down in s. 5. Sub-s. (1) of that section provides :\n\n\"Every market committee shall consists of such number of members,. being not less than twelve and not more than , b sixteen, as may be fixed for it by the Government and shall be constituted in the following manner :-\n\n(i) uot less than one-half of the members, to be appointed by the Government, after c.onsultatio~ with the Director of Marketing, from among the growers of agricultural produce and the owners of livestock and products of\n\nI<: livestock in the notified area ;\n\n(ii) one non-official from the notified area, to be elected by the members of the local cooperative marketing sbcieties ; or in the absence of uch societies to be elected as specified in clause (iv) ;\n\n(iii) (a) one representative, having jurisdiction over the notified area, of the Agricultural Department or the Animal Hus!iandry Department, to be appointed by the Governmep.t;\n\n(b) two representatives~ one each, of the municipality ' within which the office of . the market committee is located and of the gram panchayat!! comprised in the notified area, to be elected by the members of the municipality and the gram panchayats respectively ; or in the absence of such municipality both representatives to be elected by the members of the gram panchayats ; or in the absence of a gram panchayat, only one representative to be elected by the municipality ;\n\n(iv) the remaining members, to be elected in the prescribed manner by the persons licensed under sub, section (1) of Sec. 7 in the notified area from among themselves :\n\nProvided that where a market committee is cortstituted in any notified area for the first time, the Government shall appoint\n\nSUPREME CO_l.JRT REPORTS\n\n[1975] SUPP. S.C.R.\n\nthe members under this clause from out of a panel of traders of the notified agricultural produce, , livestock or products or livestock in the notified area, furnished by the Director of Marketing to the Government.\"\n\nSub-section (2) says that every market 'committee shall elect two of its members other than those mentioned in clause (iii) of sub-s. (1), to be respectively Chairman and Vice-Chairman.. and sub-sec. (3) enacts that save as otherwise provided in the Act, the term of office of the members appointed or elected under sub-s. (1) shall be three years from the date of the election of the Chairman.\n\nThe other subsections of sec. 5 are not material and we need not refer to them.\n\nSub-s. (2) of s. 6 empowers the Government to extend the tenn of office of the members of the market committee for a period not exceeding one year mbject to the proviso that no such extension shall be given for a period exceeding six months at a time. What is to happen on the expiration of the term of the office of the members of the market committee, whether original or extended. is set out in sub-s. (I) Qf s. 6.\n\nThat sub-section says that on the expiration of the term of th~ omce D of the members of the market committee, the Government .shall reconstitute the market committee.\n\nThen follow certain other sectioil.s which have no bearing on the controversy before us and we may, therefore, straight go to section 22 which deals with supersession of market committee. That section is very material and we m:1Y reproduce it in extenso.\n\n\"Supersession of market committees.-(!) lf in the opinion of the Government a market committee is not competent to perform or persistently makes default in performing the duties imposed on it by or under this Act, or abuses. its powers, they may, by notification, supersede such committee for a period not exceeding one year in the first instance and may, by order, extend, from time to time the period of supersession so however, that the total period of supersession in the case of any market committee shall not exceed two years:\n\nProvided that before issuing a notification under this sub'section, the Government shall give to the market committee an opportunity of making representation on the action proposed and shall consider the explanation or objection, if any, of the market committee thereon.\n\n(2) As from the date of publication of a notification under sub-section (1), superseding a market committee.\n\nH the following consequences shall ensue-\n\n(a) all the members as well as the Chairman and Vice-\n\nChairman of the fr1arket committee shall be deemed to have vacated their oftices;\n\n(b) all. the assets vested in the marketcommittee shall, subject to all its liabilities, vest in th!> Government.\n\n.. . ....\n\nG. v .. GUNAYYA CHETTY v. V. DASARATHMA~!A!AH (Blzagwati, J.) 223\n\n(3) Where a market con1mittce has been superseded- A\n\n(a) the Government may, by order, appoint a suitable person or persons to exercise the powers and perform the functions of the marke'\\ committee during\n\nthe period of its superscssion and transfer to such . person or persons the assets and liabilities of the superseded market committee as on the dMe of such transfer, and\n\n(b) the Government, may at any time before the expiration of the period of supcrscssion, constitute a _new market committee under sub-section ( 1) of section 4 and transfer thereto the assets and liabilities of the superseded market committee as on the date of such transfer.\"\n\nBearing in mind these relevant provisions of the Act, we may now turn to the facts leading up to the present appeal before us.\n\nThe Government, by notification issued under s. 3, sub-s. (3) ot the Act, declared the area comprised in Maebilipatnam, Badar and\n\nDivi taluks to be notified area for the purposes of the Act.\n\nThis was followed by a notification dated 30th October, 1969 constituting a Market Committee for the notified area under s. 4, sub-s. ( 1) of the Act.\n\nThe Market Committee was lo consist of twelve members to be appointed in the manner set out in s. 5, sub-s. (1) of the Act.\n\nSix out of these twelve members . were nominated by the Government from among the growers of Agricultural produce and owners of live-stock under s. 5, subcs. (1), cl. (i), two were nominated by the Government from among traders under the proviso !o s. 5, sub-s. (1), cl.\n\n(iv) and the Agriculture Extension Officer, Movva nominated by the Government as departmental representative under s. 5, sub-s. (1), cl. (iii)(a).\n\nIt docs not appear from the record whether the other thre Jnembers were appointed as contemplated by s. 5, sub-s. (1), els. (ii) and (iii)(b).\n\nThe Chairman of the Market Committee was elected on 24th January, 1970 and the term of office of the members of the Market Committee was, therefore, three years from that date as provided in s. 5, sub-s. (3).\n\nIt, however, appears that in the case of Market Committee constituted by , the Government for some other notified areas, writ petitions were filed in the High Court of Andhra Pradesh challenging 1he validity of the nominations made by the Government under s. 5, sub-s. (1), cl. ( i) and clause (iv) proviso. The ground of challenge in regard to the nominations made under s. 5, sub-s. (1), cl. (i) was that the Government had not complied with the mandatory requirement of that provision which enjoined it to consult the Director of Marketing before nominating members from among the growers of agricultural produce and owners of livestock in the notified areas in n; gard to nominations made under the proviso to s. 5, sub-s. (l), cl. (iv), the challenge was based on the ground that the nominations were made by the Government outside the panel of traders\n\nA furnished by the Director of Marketing. These grounds of challenge were upheld by the l:!igh Court in a decision reported in Donda Ram Rao v. State(') and it was held that the nominations made under s. 5, sub-s. (1), cl. (i) and the proviso to cl. (iv) were in contravention of those respective provisions and were accordingly invalid.\n\nThough this decision was given in regard to the Market Committee& B of other notified areas, it equally applied to the Market Committee constituted for the notified area of Machilipatnam, Bandar and Divi taluks and hence it was obvious that the nominations made by the Government from among the growers of agricultural produce and owners of livestock under s. 5, sub-s. (l), cl. (i) and from among traders under the proviso to s. 5, sub-s. (1), cl. (iv) were invalid.\n\nBut that would leave only one or at th~ highest four validly appoint- C ed members on the Market Committee. and the quorum for a meeting of the Market Committee under rule 29 of the Andhra Pradesh Agricultural Produce and Livestock Markets Rules, 1969 made under s. 33 of the Act being &ave, it would be incompetent to the Market Committee to exercise its powers and discharge its functions.\n\nThe Government, therefore, after giving an opportunity to the exist- D, ing members of the Market Committee to be heard, passed an order dated November, 1971 under section 22, sub-s. (I) of the Act superseding the Market Committee for a period of six months on the ground that it was not competent to perform the duties imposed on it by or under the Act.\n\nThe consequence of this supersession was that aU the members of the Market Committee were E deemed to have vacated their offices and all the assets vested in the Market Committee, subiect to all its liabilities. became vested in the Government.\n\nVide sub-s. (2) of s. 22.\n\nThe Government by another order of foe sam-o date made under s. 22, sub-s. (3), cl. (a) appointed the Assistant Din; etor of Marketing to exercise the powers and perform the functions cif the 'Market Committee during foe period of its supersession. It may be stated that none of the per- F sons affected challenged the order of supersession made by the Government and it does not form the subject matter of challenge even in the present appeal. ·\n\nIt appears that the initial period of six months for which the Market Committee was superseded was further extended and just before the expiration of the extended period of supersession, the G Government made an order dated 7th December, 1972 constituting a new Market Committee by nominating six pers\"ons cut of growers of agricultural produce and owners of livestock under s. 5, sub-s. ( l). cl. (i}, the President of the Diviscema Cooperative Marketing Society, Avanigadda und-or s. 5, sub-s. (1), cl. (ii), the Agricultural Extension Officer. Movva as departmental representatives under s. 5, sub-s. ( 1), cl. (iii)( a) and three persons representing traders under H the proviso to sub-cl. (iv) of s. 5, sub-s. (l). Though Divi taluk formed part of the notified area, no grower or trader from Divi Taluk was nominated on the Market Committee all the six representatives of growers hclong'-.d to Badar taluk, while all the representatives of traders belonged to Machillipatnam -taluk.\n\nRcspon-\n\n(1) A.I.R. 1971 Andhra Pradesh 353.\n\n...\n\n- .\n\nG. v, GUNAYYA CHETT, Y v. v. DASARATHl\\RAMAIAH (Bhagwati, !.) 22;\n\ndents Nos. 1 and 2, who were two of the traders from Divi Taluk, therefore filed Writ' Petition No. 1693 of 1973 in the High Court of . Andhra Pradesh challenging the validity of the order d, ated 7th December, 197Z in so far as iL nominated representatives of traders on the Market Committee 411der the Proviso to cl. (iv) of .sub-s. (I) of s. 5.\n\nThe .argument of respondents Nos. 1 and 2 was that it was the main part of cl.. (iv) of sub-s. (1) of s. 5 which applied and not the Proviso and, therefore, the Government was n.ot entitled to nominate representatives of traders but they were liable to be selected by traders licensed _under s. 7, sub-s. (1) from amongst themselves. The appellant who was one of the representatives nominated by the Government, resisted this argument and defended the order dated 7th December, 1972. ]be learned Single Judge, who heard the writ petition in the first instance, rejected the contention of respondents Nos. 1 and 2 and held that when the Government constituted the new Market Committee by issuing the order dated 7th December, 1972, it constituted the Market Comfl)ittee for the first time, and therefore, under the proviso to s. 5, sub-s. (1), cl. (iv), the Government was entitled to nominate members from out of the pnel of traders furnished by the Director of Marketing and the order dated 7th December, 1972 did not suffer from any infirnlity.\n\nOn this view, the learned Single Judge dismissed the writ petition.\n\nRespondent Nos. 1 and 2 being aggrieved by the order made by the learned Single Judge preferred an appeal under cl. 15 of the Letters Patent to a Division Bench -of the High Court.\n\nThe Division Bench disagreed with the view taken by the learned Single Jiidge and held that when the Government constituted the new Market Committee by its order dated 7th December, 1972 on th~ expiration of the period of supersession of the earlier Market Committee, it did not constitute a new Market .Committee for the first time, and therefore, the case was governed, not by the proviso, but the main part of s. 5, sub-s. (1), cl. (iv) and the order dated 7th December, 1972 was accordingly invalid in so far as it nominated three members from among traders purporting to act under proviso to s. 5, sub-s. (1 ), cl. (iv).\n\nThe appellant thereupon brought the present appeal with special leave obtained from this Court.\n\nThe sole question that arises for determination in this appeal is G as ta which provision applied in the present case: the main part of cj. (iv) of sub-s. (1). of s. 5, or its proviso.\n\nThe answer to the question depends upon whether the Market Committee was constituted for the first time when the Government made the order dated 7th December, 1972.\n\nThe main part of cl. (iv) of sub-s. (1) of s. 5 er\\acts that, as a general rule, members representing traders are to \"he elected \"by the persons licensed under sub-s. (1) of s. 7 in the H notified area among themselves\".\n\nBut the licence contemplated under sub-s. (l) of s. 7 is a licence to be granted by the Market Committee, and therefore, it must follow a fortiori that when a market committee is to be constituted for the first time, there would be no \"persons licensed under sub-s. (l) of s. 7\" in existence who could elect members. on the Market Committee under the main part\n\nof cl. (iv) of sub-s. (I) of s. 5.\n\nThat is why the proviso was enacted to deal with such a situation.\n\nIt savs that when a Market Committee is being constituted for the first time, the elective method being obviously inappli.cablc, members representing traders shall be nominated by the Government in the manner set out there. Whenever, therefore, a question arises as to which is the appropriate method to be adopted in appointing members representing traders-whether elective method under the main part of ci. (iv) of sub-s. (1) of s. 5, or nominative method under the proviso--the inquiry which has to be made is: is the Government constituting the market committee for the first time, or has it already been constituted once before and in view of the expiration of the term of ot!ice of its members or its supersession, it is being constituted again?\n\nLet us first take a case where a market committee has bec'l constituted for a notified area for the first time and the term of ollicc of its members, whether original or extended, expires.\n\nThe Government is then required to reconstitute the market commit!ee under I} s. 6. 'Reconstitute', according to its plain natural connotation, means nothing else than 'constitute again'. 111c Government has, tkrefore, to constitute the market committee again.\n\nThat would clearly be a new market committee, but it would not be a market committee constituted for the first time, for there was already an clearly be a new market committee, but it would not be a. market came to an end by eftlux of time.\n\nThe proviso to cl. (iv) of sub-s.\n\nE (I) of s. 5 can, therefore, obviously, on its plain language, have no application in such a case.\n\nThe raison d'etre for the necessity of nomination under the proviso would also not be there.\n\nThm, does it make any difference whether a market committee constituted for a notified area for the first time is superseded and on F the expiry of the period of supersession, a new market committee is constituted by the Government under sub-s. (I) of s. 4 as contemplated by sub's. (3) (b) of s. 22?\n\nThe market committee which is constituted by the Government on the expiration of the period of supersession 1nust necessarily be a new market con1mittec vis-a.\\is the earlier one which is superseded.\n\nBut that does not mean that it is a market committee constituted for the first time. It would G indeed be doing violence. to the language of the proviso to say that such a market committee is one constituted for the first time for a notified area. when there was already an earlier market committe~ constituted for the same notifo:d area, though it was subsequently suspcrsedcd. There is no scope here for verbal semantics. It is a simple question we have to ask for ourselves: is this a n1arkct cu1nmittee constituted for the first time for this notified area or has H there been , l\\ market committee before so that this is not the first time that a market committee is constituted for this notified area? If this question is asked, the answer is simple and self-evident.\n\nWhen there is a market committee constituted for a notified area and it is superseded and on th~ expiry of its supersesion, new. market committee is constituted by the Government, It is 1mposs1ble to see how it can be said that the new market committee is a market\n\n. -\n\nG. v. GUNAYYA CllETTY v. V.· DASARATllARAMA!AH (li/wgwati, !.) 227\n\n- . ...\n\n:ommittee constituted for the first time for !his notified area.\n\nWhether a market committee is constituted for the first tinie or not would depend on the question whether there was an earlier market. committee for the same notified area or not and not on the question whether it is a new market committee c9nstituted under sub-s. 11) of s. 4, or a market committee reconstituted under s. 6.\n\nHere in the present case, there was a market committee constituted by the Government for the notified area of Machilipatnam,\n\nBanda~ and Divi taluks under the notification dated 30th October, 1969 and this Market Committee functioned until it was superseded by the order dated 23rd November, 197 J.\n\nIt may be reiterated once again that the supcrsession pf this Market Committee on the ground that by reason of want of sufficient members to constitute quorum, it was not competent to perform the duties imposed on it by or under the Act, was not challenged before us and we must, therefore, proceed on the basis that it was a market committee which had existence until it was superseded and it was not non-est ab initio When, therefore, the Government made t11c order dated 7th December, 1972 on the expiration. of the period of supcrsession of this Market Committee, it undoubtedly constituted a m:w market committee-new vis-a-vis the old which was superseded-but that was not a market committee constituted for the first time for the notified area of Machilipatnam, Bandar and Divi taluks.\n\nThere was already an earlier Market Committee for this notified ar-<a which was superseded and this was a second Market Committee constituted for this notified area on the expiration of the period of supersession of the earlier one.\n\nThe proviso to cl. (iv) of suh-s. ( 1) of s. 5 had, therefore, no application and the Government was not entitled to non1inatc mcn1bers representing traders on the 1vfarkct Co1nn1ittee constituted by it under the order dated 7th December, 1972.\n\nIt was the main part of cl. (iv) of sub-s. (!) of s. 5 which applied an<l so far as representation of traders was conccrnca, \"persons licensed under sub-s. (l) of s. 7 in the notified area\" were entitled to elect members from among themselves.\n\nWe most, therefore, hold that the Division Bench of the High Court was right in takina the view that the order dated 7th December. 1972 was invalid fu so far as it purported to nominate tqrce members from among traders under the proviso to cl. (iv) of sub-s. (I) of s. 5.\n\n, The appeal, therefore, fails and is dismissed with costs in this\n\nJ ___ ,;\n\ncour:t. •\n\nV.M.K.\n\nAppeal dismissed .", "total_entities": 86, "entities": [{"text": "ANR\n\nV. DASARATHARAMAJAH & ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "V. DASARATHARAMAIAH & ORS", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 109, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Pradesh Agricultural Prvduce and Live-Stock Markets Act", "label": "STATUTE", "start_char": 140, "end_char": 195, "source": "regex", "metadata": {}}, {"text": "sec. 5", "label": "PROVISION", "start_char": 233, "end_char": 239, "source": "regex", "metadata": {"linked_statute_text": "Pradesh Agricultural Prvduce and Live-Stock Markets Act", "statute": "Pradesh Agricultural Prvduce and Live-Stock Markets Act"}}, {"text": "section 7 and 2", "label": "PROVISION", "start_char": 269, "end_char": 284, "source": "regex", "metadata": {"linked_statute_text": "Pradesh Agricultural Prvduce and Live-Stock Markets Act", "statute": "Pradesh Agricultural Prvduce and Live-Stock Markets Act"}}, {"text": "notified area for the purposes of the Act", "label": "STATUTE", "start_char": 841, "end_char": 882, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1012, "end_char": 1016, "source": "regex", "metadata": 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{"text": "Andhra Pradesh Agricultural Produce and Livestock Markets Rules, 1969", "label": "STATUTE", "start_char": 17003, "end_char": 17072, "source": "regex", "metadata": {}}, {"text": "s. 33", "label": "PROVISION", "start_char": 17084, "end_char": 17089, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh Agricultural Produce and Livestock Markets Rules, 1969", "statute": "the Andhra Pradesh Agricultural Produce and Livestock Markets Rules, 1969"}}, {"text": "section 22", "label": "PROVISION", "start_char": 17378, "end_char": 17388, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh Agricultural Produce and Livestock Markets Rules, 1969", "statute": "the Andhra Pradesh Agricultural Produce and Livestock Markets Rules, 1969"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 17835, "end_char": 17840, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh Agricultural Produce and Livestock Markets Rules, 1969", 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"start_char": 22170, "end_char": 22174, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 22301, "end_char": 22305, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 22398, "end_char": 22402, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 22622, "end_char": 22626, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 22740, "end_char": 22744, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 23246, "end_char": 23250, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 23836, "end_char": 23840, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 24306, "end_char": 24310, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 24744, "end_char": 24748, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 24786, "end_char": 24791, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 26446, "end_char": 26451, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 26456, "end_char": 26460, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 26504, "end_char": 26508, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 27880, "end_char": 27884, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 28134, "end_char": 28138, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 28247, "end_char": 28251, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 28595, "end_char": 28599, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_1_228_233_EN", "year": 1975, "text": "COMMISSIONER OF SALES TAX, li.P.\n\nM/S. SARIN TEXTILES MILLS\n\nApril 21, 1975\n\n(R. S. SARKARlA AND A. C. GUPTA, JJ.J\n\nU.P. Sales Tax Act, 1948, ss. 3 ilnd 3A-'Wool/cn Carpet Yarn' if un.\\pun frbrc used in wearing.\n\nThe respondent is a manufacturer of and dealer in '\\Voollen Carpet Yarn', popularly known as kati.\n\nFor the assesSmenl years 1959-60 and 1961-62 he was taxed by the Sales Tax officer at 6 pies per rupee nnd 3 pies per rupee, respectivcJy, under two notifications applicable to the. two assessment years respectively, issued under the U.P. Sales Tax Act, 1948. On appeal, the Assistant Commissioner held that kati \\Vas an unclrissified item tuxable at 2 pies per n1pce under s. 3 of the Act, and the order \\\\'as confirn1ed on reYision and by the High Cou:t on reference.\n\nThe two Notifications provided (1) that turnover of 'Yarn of all kinds including unspun fibre used in weaving' is liable to tax at 6 pies per tu>lee, and (2) turnover of yarn of all kinds -including unspun fibre used in weaving, is liable to tax at 3 pies per rupee. There was another notification \\Vhich provided that turnover of \"Woollen goods excluding carpet but including knitting wool'' is liable to tax at one anna per rupee ..\n\nThe authorities under the Act found that kati are short cut pieces of unspun fibre about 2 inches in length ; !hat the pieces have \\•cry little tensile strength and are not used, and are not caP'abJe of being used, for weaving, knitting or rope-making ; that the only use to which kati is put is by attaching each piece by hand around hvo warp threads; that it is not a component of the basic fabric of the carpet ; that it is not an integral constituent of the warp and weft of tbe carpet which cono; ists of a different spun fibre of great tensile strength ; and that the process of looping or knotting kati is different and _dist; inct from the pro cess of lengthwise and crossv.'ise combining of \\\\'arp and weft components \\Vhich makes the woven basic structure of the carpet.\n\nDismissing the appeal to this Court.\n\nH'ELD : (I) Kati is not 'yam' because one of the characteristics of yarn is that it should be spun thread, \\Vhereas kati is unspun fibre.\n\n[231H]\n\n(2) It is not unspu1i fibre 11SL'd in weaving v.\"ithin the n1erining of the first two notificacions because, on the facts found, it is not used in wea\\'ing.\n\n(233-1;'-DJ\n\n(3) ]t is not ''voollen gocds' within the n1eaning of the 3rd notification, because.\n\n[233-C-DJ\n\n(a.) Katri is on1y niw material from ¥.'hich 'woollen goods' are prepared : and [233-E]\n\n'(b) Yarn .use~ in \\\\'Caving the .'van? and weft of carpets, or woollen fibre used in \\Veav1ng 1s, under the not1ficattons, taxale at a par lower rate than 'woollen goods': and it could never have been 1ntende~ that a mere component or raw material, used by a manual process, not being a process. of \\Vcaving in the manufacture of 'woollen goods' should be taxed at a higher rate treatlng kati as fiished 'v.'oollen goods'. [233E.F.] '\n\n( 4) Therefore, it is an unclassified item and the turn-over is liable to tax A only at 2 pies per nipee.\n\nCIVIL APPELIATE JURISDICTION : Civil Appeal Nos. 1934-35 of 1970 and 1172-73 of 1974.\n\nAppeal by Special Leave from the Judgment and Order dated the B 30-4-1970 for the Allahabad High Court in S. T. R. No. 191 of 1969.\n\n0. P. Rana for the appellant.\n\nS. C. Manchanda and P. C. Kapoor for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.~Thesc appeals by special leave are directed.' against the judgment of the High Court of Allahabad answering in favour of the assessee the following question referred to it under s. 11 of tlie U.P. Sales Tax Aot, 1948 (for short called the Act):\n\n\"Whether the articles \"carpet woollen Yarn\" is covered by the term 'yarn' mentioned. in item No. 4 of notification No. ST-907/X, dated 31-3-1956 and item No. 33 of notification No. S.T. 1365/X dated 1-4-1960 taxable at 6 pies and 3 pies per cent respectively or a kind of woollen goods as mentioned at item No. 46 taxable \"at one amp per rupee according to notification No.\n\nST-905/X dated 31-3-56 or whether it is an unclassified item taxable at 2%\".\n\nM/s. Sarin Textile Mills, Agra is a manufacturer of and dealer\n\nin \"woollen carpet yam\", popularly known as \"kati\".\n\nThe relevant assessment years are 1959-1960 and 1961-62.\n\nThe only dispute is whether such kati should be taxeil as \"yarn\" at 3 % or as \"woollen goods\" at one .anna per rupee, under the relevant notification issued under s. 3-A or as an nnclassified item at 2 % under s. 3 of the G Act.\n\nThe Sales-tax Olhcer by his order dated 6-10-1965 regarded it as a 'kind of yarn' covered by Entry No. 4, Notification no. ST-907 / X dated 31-3-1956, and so taxed it at six pies per rupee for 1959-60 and at 3 per cent for the year 1961-62 in view of subsequent H notification ST-1365/X dated 1-4-1960.\n\nOn appeal by the asscsce, the Assistant Commissioner (Judicial) reversed that interpretation and held that woollen carpet kati was an 'unclassified item' taxable at the rate of 2 per cent.\n\nA The Commissioner of Sales-Tax moved the Revisional Authority under s. IO of the Act against the order of the Assistant Commissioner (Judicial).\n\nThe Judge (Revisions) agreed with the interpretation adopted by the Assistant Commissioner (Judicial) and dismissed the revision applicMion.\n\nOn application filed by Commissioner under s. 11 (3) of the Act, the Judge (Revisions), referred the aforesaid question to the High Court.\n\nThe High Court also held that the woollen carpet kati is not 'yarn' since it is unspun fibre not used in weaving. and, as such, it is not taxable as a 'kind of yarn' under tile aforesaid notification.\n\nIt further rejected the alternative contention of the Revenue that woollen carpet kati' is taxable under the notification No. ST-905/ X as \"woollen goods\".\n\nJn the result, the High Court answered the questions against the Revenue. Hence these appeals.\n\nMr. Rana learned Counsel for the appellant contends that the term \"yarn\" used in the aforesaid notification should be interpreted D in the sense in which it .is understood by persons engaged in the trade.\n\nStress has been placed on the fact that in English, e\\t:n the as.sessee has been describing the article in question as \"woollen carper yran\".\n\nSuch kati, it is pointed out is used in the manufacture of carpets by a process of 'knotting', which in ordinary parlance is described as 'weaving'. According to Mr. Rana, the distinction E drawn by the High Court, between 'weaving' and 'knotting' -being\n\ntoo fine and artificial, is not justified. lt is maintained that tk Sales-tax Ofliccr had rightly held that all twisted wool fibres are yarn'. Since this woollen kati is such a fibre, it is yarn and taxable as such under the aforesaid notifications.\n\nJn the alternative. Counsel submits that this article falls within the purview of \"woollen goods\"\n\nand in taxable as such under notification No. ST-905/X of 1956.\n\nF As against this, Mr. Manchanda, learned Counsel for the assessee contends that in the past for about 8 years. the Revenue had been understanding and treating for the purpose of taxation, \"woollen carpet kati\" as au article ditlerent from \"yarn\" and \"woollen goods\" within the contemplation of the aforesaid notifications.\n\nIt: is stressed that for the first 'lime it was on 23-9-1963 that the Sales-tax Officer G departed frorn this time-honoured interpretation and held . \"woollen carpet kati\" to he \"yarn\" within the said notifications. lt is submitted that tbe High Court's opinion, that woollen carpet kati is'\n\nneither \"yarn\" nor ''woollen goods\", proceeds on facts found by the Assessing Authority on the basis of evidence adduced regarding the nature and use of this article.\n\nOn those facts, it is maintained, no other reasonable interpretation than the one accepted by the H High Court is possible.\n\nThe notifications concerned issued under s. 3-A of the Act, are these:\n\n\"(i) Notification No. ST 907 /X dated 31st March, 1956.\n\nIt declares that the turnover of certain commodities menc.s.T. v. SARIN TEXT!1ES (Sarkaria, J.)\n\ntioned therein should be taxed at a single point, at the point of sale by the manufacturer or the importer, at the rate of six pies per rupee. The relevant entry of this notification is no. 4, which reads: ·\n\n\"Yarn of all kinds, including unspun fibre used in\n\nweaving, other than handspun yarn but excluding cotton B yarn in cops a.hd cones\". (emphasis added)\n\n(ii) Notification No.\n\nST. 1365/X-990 1956 dated April I, 1960.\n\nIt is also a notification under section 3-A of the Act and the relevant entry is at item No. 33 which reads :\n\n\"Yarn of all kinds including unspun fibre used in weaving other than handspun yarn but excluding cotton yarn.\" (emphasis added)\n\n(iii) Notification No. No. ST-905/X dated 31st March,\n\n1956.\n\nThe relevant entry is at item No. 46 which reads .\n\n\"Woollen goods excluding carpet but including knitting wool.\"\n\nThe rate of tax prescribed is one anna per rupee.\n\nThe first point to be considered kati\" is \"yarn\" within the meaning catalogued above.\n\nis, whether \"woollen carpet of Notification (i) and (ii)\n\n\"Yarn\" bas not been defined either in the Act and the Rule;, or in the Notifications.\n\nWe have therefore to construe this term in its ordinary grammatical sense. According to \"Oxford Dictionary\" \"yarn\" means:\n\n\"Any spun thread specially of kinds prepared for weaving, knitting or rope-making\".\n\nWebster's New World Dictionary also, gives its meaning thus:\n\n\"Any fibre, as woo!. silk, flax, cotton, nylon etc. spun into strands for weaving, knitting or making thread\".\n\nThus, a fibre in order to answer the description of \"yarn\" in the ordinary commercial sense, must have two characteristics. Firstly, it should he a spun strand.\n\nSecondly, such strand hould be\n\nprimarily meaut for use in weaving, knitting or rope-making.\n\n Now, it is an undisputed fact, in the instant case, that \"woollen carpet kati\" is unspun fibre.\n\nIt lacks the first characteristic of \"yarn\". It is therefore possible to say that, by itself, the expression \"yarn of all kinds\" in the notifications, quoted above, would not cover ; . unspun fibres. But the succeeding phrase \"including unspun fibre\n\n10 SC/75-16\n\nA used in weaving\" qualifies the preceding expression \"yarn\" of all kinds\". This phrase, which, in one sense, extends the connotation of \"yarn\" by including in it unspun fibre, pinpoints and highlights, on the other hand, the usability of such nnspun fibre in weaving as a determinative circumstance.\n\nB The question thus narrows down into the issue : Is woollen carpet kati--which is admittedly unspun fibre-\"used in weaving\" within the contemplation of these notifications ? Again, \"weaving\" has not been defined in these notifications or the other statutory provisions. We have therefore to fall back upon its ordinary dictionary meaning. In that sense, 'weaving' implies the process of forming thread into fabric C by interlacing. \"The most important method by which wool products {Ire produced is weaving, the interlacing at right angles of two or more systems of threads. Variations are almost limitless but all arc derived from three basic weaves, plain, satin and twill. Hundreds of yarns, wound on large spool or beam form the warp.\n\nEach yarn is drawn through the eye of a heddle or wire mounted on a harness frame. The alternate raising and lowering of the frames, each with its D hundreds of heddles controlling the warp yarns, forms the shed, the space through which the weft or filling yarn is carried by the shuttle, a long satreamlined box holding a bobbin of yarn in its hollowed. centre. Each trip of the shuttle is called a pick. After each pick the harness frames shift position in accordance with the predetermined pattern, producing a new shed or different combination of raised and E lowered warp yarns. The filling yarn are beaten down with a weaver's read to make a tighter weave\". (Encyclopaedia Brittanica Vol. 23, p. 342, 1971 Eda.)\n\nThus \"weaving\" is the process of combining warp and weft components (respectively lengthwise and cross-wise) to make a woven structure. The threads that lie lengthwise are called the warp. The other threads which are combined with the warp and lie widthwise, are called the \"weft\", also known as \"woof\". An individual thread from the warp of indefinite length, is called an end; each individual length of weft from one edge to the other is called a pick. Consecutive picks. are usually consecutive lengths of one piece of weft yarn that is repeatedly folded back on itself. In all methods of weaving before a G length of weft is inserted in the warp, the warp is separated, over a short length extending from the cloth already formed, into two sheds.\n\nThe process is called shedding. The sequence of primary operations in one weaving cycle is thus shedding, picking and beating in. (Encyclopaedia Brittanica Vol. 23, p. 342).\n\nWeaving is differentiated from both warp and weft, knitting from H braiding, and from net making, in that these processes all make use of only one set of elements. In addition there are geometrical differences\". (Encyclopaedia ibid).\n\nThe ground having been cleared, it is to be seen whether the process by which woollen carpet Kati is used in preparation of carpets, can properly be called \"weaving\".\n\nNow, the facts found on the basis of evidence adduced by the Additional Appellate Commissione( and the Judge (Revisions) Sales Tax are that such woollen kati are short ent pieces of unspun fibre (each of which according to the aforesaid Encyclopaedia is about - 2 inches in length).\n\nIt has very little tensile strength and is not used-as it is not capable of being .used-for weaving, knitting or rope-making.\n\nThe only use to which the kati or pile is put is by attaching each piece by hand around two warp threads. The kati is not a component of the basic fabric of the carpet. It is not an integral constituent of the warp and weft of the carpet which consists of a different spun fibre of great tensile strength i.e. of yarn.\n\nThe process of looping or knotting these pile tufts is different and distinct from the process of lengthwise and crosswise combining of warp and weft components, which makes the woven basic structure of the carpet.\n\nIn view of these primary facts found by the taxing authorities, the conclusion is inescapable, that woollen carpet kati is neither \"yarn\", nor \"unspun fibre used in weaving\" within the contemplation of the aforesaid notifications issued under s. 3-A.\n\nThis takes . us to the second question as to whether such kati wonld fall within the ambit of \"woollen goods\" under entry 46 of Notification (iii) set out above.\n\nHere also, we find ourselves in agreement with the Division Bench of the High Court that woollen carpet kati is only raw material from which \"woollen goods\" are prepared.\n\nIn this connection it is to be noted that yam used in weaving the warp and weft of carpets, or woollen fibre used in weaving has been made taxable at a far lower rate than \"woollen goods\" under the Notifications. It could never be the intention that a mere component or raw material used in the manufacture of woollen goods by a manual, process, not being a process of weaving, should be taxed at a far higher rate, by treating the same as a finished \"woollen goods\".\n\nFor the foregoing reasons, we are of the opinion that \"woollen carpet kati\" is neither \"yam\" nor \"woollen goods\" falling under the aforesaid notifications issued under s. 3-A. It is an unclassified item and its turnover is liable to tax at the rate of 2 % under s. 3 of the Act.\n\nAccordingly we affirm the answer given by the High Court to the question referred and dismiss these appeals with one set of costs.\n\nV.P.S.\n\nAppeals dismissed.", "total_entities": 16, "entities": [{"text": "COMMISSIONER OF SALES TAX, li", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF SALES TAX, U.P", "offset_not_found": false}}, {"text": "M/S. 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{"document_id": "1975_1_234_239_EN", "year": 1975, "text": "STATE OF MADHYA PRADESH & ORS.\n\nTJKAM DAS\n\nApril 22, 1975\n\n[V. R. KRISHNA IYER, R. S. SARKAR!A AND A. C. GUPTA, JJ.]\n\nMadhya Pradesh Excise Act (2 of 1915)-General conditions of licence 1nade u11der the Act, r. 26 and Foreign Liquor Rules n1ade u11der the Act, r. 4-Balance of stock 011 expiry of licence-Enhancnzent of licence fee for next year-If bafance of stock liable to enhanced fee.\n\nDelegated legislation-When rule can be n1ade retrospective.\n\nThe respondent had a licence for sale of foreign liquor is..'!tted under the J; orcign Liquor Rules made under the Madhya Pradesh Excise Act, 1915. On the date of the expiry of the licence (Jlvlarch 31, 1964), he had a large quantity of unsold foreign liquor, \\Vhich had to be surrendered by him to the authorities.\n\nAs the Government was conten1plating enhancing the licence fee. he gave an undertaking to pay the difference and he \\\\'as allowed to keep the execs.; stock.\n\nHe also obtained a fresh licence for one year comn1encing on A::iril 1, 1964.\n\nOn April 25, 1964, the Foreign Liquor Rules were amended.\n\nThe scale of licence fees i,.vas enhanced \\Vith retrospective effect from April 1, 1964; and r. IV wa~ amended providing that the licensee shall be liabl~ to pay the difference in the event of the enhancement of the scale of fees on the balance of stocks during the currency or on the expiry of the licence.\n\nBut the State's demand for the difference was successfully challenged by the' respondent, in the High Court, on the ground that the balance of stocks on f\\iarch 31, 1964, was covered by the licence fee already p<iid and conld not be subjected to enhanced levy.\n\nF Allowing the appeal to this Court,\n\nHELD : (1) Subordinate legislation made by a delegate cannot have retrospective effect unless the rule-making power in the concerned statute expressly er by necessary implication confers power in this behalf.\n\nBut s. 63 of he Act does contemplate not merely the po\\ver to make rules but to bring th~:n1 into force from any previous date. It states that all rules made under the 1\\ct shall have effect from the date of publication in the official gazette or frtJln .n1ch other date as may be specified in that behalf. Therefore, the enhanced G levy of licence fees operates from April I, 1964. [236F, H 237AJ\n\n(2) Rule XXVI of the General Licence Conditions provides that if there is enhancement of duty, the licensee shaJI pay the difference of duty on the 'balance of stocks' as on the date preceding the expiry of the licence. The rule tilso provides for refund by the State if there is a reduction of duty. -Reading this rule with the amended r. IV of the Foreign Liquor Rules, the 'balance of stocks' is the surplus stock held by the licensee immediately before the expiry\n\ncf his licence. Therefore the quantity held over on March ,31, 1964, became H liable to the enhanced licence fee on April l, 1964.\n\n[238E-F]\n\n(3) (a) If the respondent's contention is accepted l?ersons \\Vho ~1.ve huge stocks Jeft over will not have to pay the enhanced licence fee while fre:o; h\n\nlicensees would be so liable i and [238-G]\n\n(b) If the respondent had surrendered his stock as he should have but for his undertaking he would have had to pay the enhanced rate for such left-over stock. [238HJ\n\n-.,\n\n. ( >\n\n~ .\n\n' •\n\nM.P. STATE v. TIJ!:AM DAS (Krishna lyer, J.) 235\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 668 of 1968.\n\nFrom the Judgment and Order dated 2nd March 1965 of the Madhya Pradesh High Court in Misc. Petition No. 348 of 1964.\n\nRam Panjwani, l. N. Shroff and H. S. Parithar, for the appellants.\n\nB. N. Lokur and A. G. Ratnaparkhi, for the respondent.\n\nThe Judgment of the Court was delivered by\n\n. KRISHNA IYER, l-The claim of the appellant, the State of Madhya Pradesh, to leavy enhanced license fee on the spill-over stock C of intoxicating liquor held as on April 1, 1964 by the respondent who runs a bar, was successfully challenged in the High Court. So the State has come up in appeal, by certificate, under Art. 133 and disputes the correctness of the view accepted by the High Court.\n\nAs is obvious, the facts are brief and beyond dispute, the issue of law straight and simple and our decision, on a careful study of the alternative constructions of the relevant provision, is that the State is entitled to collect the fee on the revised scale. The respondent runs a cafe at Indore and a foreign liquor bar booths expensive sales and attracts affluent a&:licts. Naturally, as a profitable proposition the respondent obtained a licence for the sale of foreign liquor (in Form F. L. 3) issued µnder the Foreign Liquor Rules framed under the Excise Act, 1915('). The licenc~ which he held was for one year from April 1,\n\nJ 963 to March 31, 1964. At that time, under the extant rules the fee payable was 37 paise per quart bottle of malt liquor and different rates for other kinds of foreign liquor. On the date of expiry of the licence, viz., 31st March 1964, the respondent had with him a large quantity of unsold liquor which was already in the licensed premises, having been brought earlier. He obtained a fresh licence for a further period of one year commencing from April 1, 1964. Meanwhile Government was entertaining the idea of enhancing the scales of licence ree for the various kinds of foreign liquor. The balance quantity left over with the respondent at the end of the licensed period, viz., March 31, 1964 was checked by the concerned Excise Officials and a panchnama prepared in that behalf. Ordinarily, the surplus stock has to be surrendered by the licensee but, on an undertaking to pay !he difference in the event of an enhancement of the rates, the bar owner was permitted to keep on his premises the balance quantity so ascertained.\n\nApparently the State Government had decided on the increased rate because we find from Annexure B a demand being made by the Excise Inspector on the licensee -to pay the difference of fees consequent on the enhancement of the scale of fees, as worked out on the stock which remained in hand with the owner of the bar on the night of March 31, 1964: Despite !he undertaking given to comply with such enhanced demand, the hotelier resisted it and took up the stand that the balance stock had already been subjected to licence fee when it was brought in and that the subsequent raising of the rate of licence\n\n(1) Madhya Pradesh Excise Act, 1915 (Act II of 1915).\n\nA fee could not be applied validly to such stocks. Since the State insisted, on levying at the larger rate even on the balance stock held on March 31, 1964 the respondent moved the High Court for the issuance of a writ quashing the demand as illegal. The legality of the levy depends on the applicability of the enhanced scales of licence fee to the balance of foreign liquor stock held by the licensee on the micl- B night of 31/3-1/4/1964.\n\nThe facts being thus plain, we will straight go to the law relied on by the State in support of its claim. The Excise Act and the Foreign Liquor Rules made thereunder govern sales of these intoxicants and Form F.L.3 applies to bars which sell foreign .liquor for consumption on the premises.\n\nOn April 25, 1964, the Government, by virtue of its powers under the Act, amended in certain respects the Foreign Liquor Rules.\n\nOne such amendment concerns the scale of fees in respect of licence in Form F.L.3, an upward revision having been effected. The rule itself, although promulgated on April 25, 1964 was given effect re- D trospectively from April 1, 1964. Apart from raising the rates. Rule IV was also amended by the addition of the (ollowing provision at the end of it :\n\n\"The licensee shall be hablc to pay the difference of fees per bottle on the balance of stocks of foreign liquor in the event of the enhancement of the scale of fees during the currency or on expiry of the licence.'\n\nBased on this modification of the rules, the State made the demand for the difference.\n\nLet us examine the rival contentions and test the soundness of each briefly. First of all, we have to ascertain the scope and area of the rule-making powers, the limitations thereon and the retro-active operation of such rules. There is no doubt that unlike legislation made by a sovereign legislature, subordinate legislation made by a delegate cannot have retrospective effect unless the rule-making power in the concerned statute expressly or by necessary implication confers power in this behalf. Our attention has been drawn to ss.62 (g) and\n\n(h) and 63 in this connection, by counsel for the State. The State G Government may make rules for the purpose of carrying out the provisions of the Act (s.62). Such rubs may regulate the amount of fee, the terms and conditions of licences and the scale of fees and the manner of fixing the fees payable in respect of such licences [62\n\n(g) and (h)].\n\nThis provision, by itself, does not expressly grant power to make retrospective rules. But s. 63 specifically states that 'all rules made and notifications issued under this Act shall be published in the Official Gazette, and shall have effect from the date of such publication or from such other date as may be specified in that \"\n\nbehalf.' Clearly the Legislature has empowered ils delegate, the State Government, not merely to make the rules but to give effect to them from such date as may be specified by the dekgate. This provision regarding subordinate legislation does , contemplate not merely the power to make rules but to bring them into force from any previous date.\n\n-•.__\n\n- .\n\n... ,\n\nTherefore antedating the effect of the amendment of Rule IV is not obnoxiou• to the scheme nor ultra vires s.62.\n\nThe focus must now turn on the disposal of the balance stocks\n\nwith licensees held on the expiration of the period. Rule XXV (') regulates the disposal of such balance of intoxicants left with vendors after the expiration of their licences; if they get new licences on the B expiry of the old in respect of the same premises, they are allowed to retain the balance of stock for the purposes of the new licence [r. XXV (a)]. In the event of the fee or duty being enhancee or reduced, r. XXVI makes such change applicable to the balance of stock. It is useful to reproduce r .. XXVI here :\n\n\"XXVI. Procedure to be followed when duty is enhanced or C reduced.\n\nIf it is notified by the Collector that from any particular date the duty leviable on any intoxicants is to be enhanced, all licensed vendors in possession of such intoxicants shall, on the evening preceding that date, dep'osit their . stock with such persons as the District Excise Officer may appoint for the purpose. Sqch stocks shall remain in deposit until verified and the District Excise Officer may order that the difference of duty be levied on. the balance of the stocks, and the licensee shall then pay such duty within thirty days of the date on which the enhanced rare\n\nof duty comes in!o force :\n\n(a) Provided that if such stock, or part of such stock, be destroyed, the difference of duty shall not be levied on the stock destroyed; and\n\n(b) Provided also that if the balance of stock so deposited is transferred to another licensed vendor, the difference of F duty shall be levied from the transferee before the transfer is completed.\n\nThe above procedure regarding the deposit and verification of stock of intoxicants consequent on the enhancement of duty shall also apply when duty leviable on any intoxicants is reduced. Refund of the difference in duty con- G sequent on the reduction in its rate may be sanctioned by the Excise Commissioner on receipt of an application from the licensee through the Collector of the district.\"\n\nA fair reading of this rule yields only one result. The licensed vendor in possession of surplus intoxicants on the eate preceding expiry of his licence should ordinarily deposit such stock with the appointed Excise Officer. On verification of the actual quantity of such stock, H the District Excise Officer 'may order that the difference of duty be levied on the balance of stocks, and the licensee shall then pay such duty ...... '. Of course, the above procedure primarily visualizes. enhancement of duty. but is made. applicable to reduction of duty when\n\n( 1 Under the General Licence Conditions under s. 62.\n\nA refund of duty shall be made by the State. Rule IV virtually extends this kind of dealing with balance of stocks when the subject matter is license fee as distinguished from duty. Moreover, licensees are \"'\n\nbound by the general licence conditions (vide condition No. 6 of the license) and the general licence conditions with which we are concerned are set out in rr. XXV and XXVI already adverted to.\n\nIn this background of the law, the short question is whether the respondent is liable to pay enhanced fee brought about by amendment of the rules on April 25, 1964.\n\nThe first contention that has been raised by the respondent in sup- C port of the judgment of the High Court is that in any case subordinate legislation cannot be retrospective and the State Government cannot therefore make rules and give effect to them retroactively. We have\n\nalready set out the provisions of ss. 62 aud 63 bearing on the subject and have no doubt that, in the present case, the statute does authorise the State, as its delegate, to make retroactive rules. Therefore we ne- D gative the contention that the enhanced levy of licence fee cannot operate as from April 1, 1964.\n\nThe second contention which has found favour with the High Court is that the balance on hand on March 31, l 964 is covered by the license fee already paid and cannot therefore be subjected to the enhanced levy on April 1, 1964. There is a measure of absurdity in the ruk, if this be the construction. Indeed, the High Court itself notices that the words used to tax at a higher rate the balance of stocks would become redudant in r. XXVI. A fair reading of the rule giving full effect td the words used in r. XXVI of the Excise rules and the explanation added to r. IV (of the Foreign Liquor Rules already extracted) leave us in no doubt that the balance of stocks envisioned by the rules and subiected to enhancement or reduction of duty is such surplus stock as is held iunnediately before the expiry of the previous license. So construed, in this case the quantity held over on March 31, 1964 becomes liable to enhancement of license fee on April J, 1964 and that is precisely what the State has claimed.\n\nG Indeed, commonsense suggests no alternative construction. For, otherwise, some persons who by accident have huge stocks left over will not have to pay the enhanced rate of licence fee while others with 'virgin' licences for that year and begin with no stock-on-hand have to pay at a higher rate. Again, if only the respondent had surrendered his surplus stocks on 31-3-1964, as ordmanly he would have had to had be not been permitted to retain that quantity in H view of his getting a fresh licence for the same premises, he would have had to pay the enhanced rate for such left-over stock. !h:-is, both law and logic, correct construction and commonsense, comc1de in the conclusion that the Eagle Cafe Bar owner (the respondent) had to pay the higher fee on the balance of stock as on April 1, ! 964.\n\nThe High Court erred in its interpretation of •the rules as applicable to the present situation.\n\n.. . -\n\n- .\n\nWe allow the appeal but, having regard to the fact that the sum A involved is unsubstantial although the Higl> Court regards the question of law involved as substantial, we direct that the parties do bear their costs.\n\nAppeal allowed.", "total_entities": 18, "entities": [{"text": "STATE OF MADHYA PRADESH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH & ORS", "offset_not_found": false}}, {"text": "TJKAM DAS", "label": "RESPONDENT", "start_char": 32, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "TIKAM DAS", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 60, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 99, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Madhya Pradesh Excise Act", "label": "STATUTE", "start_char": 118, "end_char": 143, "source": "regex", "metadata": {}}, {"text": "Foreign Liquor Rules", "label": "STATUTE", "start_char": 218, "end_char": 238, "source": "regex", "metadata": {}}, {"text": "Liquor Rules made under the Madhya Pradesh Excise Act, 1915", "label": "STATUTE", "start_char": 539, "end_char": 598, "source": "regex", "metadata": {}}, {"text": "s. 63", "label": "PROVISION", "start_char": 1888, "end_char": 1893, "source": "regex", "metadata": {"statute": null}}, {"text": "IV of the Foreign Liquor Rules", "label": "STATUTE", "start_char": 2623, "end_char": 2653, "source": "regex", "metadata": {}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 3998, "end_char": 4006, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreign Liquor Rules framed under the Excise Act, 1915", "label": "STATUTE", "start_char": 4593, "end_char": 4647, "source": "regex", "metadata": {}}, {"text": "Madhya Pradesh Excise Act, 1915", "label": "STATUTE", "start_char": 6356, "end_char": 6387, "source": "regex", "metadata": {}}, {"text": "ss.62", "label": "PROVISION", "start_char": 8465, "end_char": 8470, "source": "regex", "metadata": {"statute": null}}, {"text": "s.62", "label": "PROVISION", "start_char": 8634, "end_char": 8638, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 63", "label": "PROVISION", "start_char": 8923, "end_char": 8928, "source": "regex", "metadata": {"statute": null}}, {"text": "s.62", "label": "PROVISION", "start_char": 9638, "end_char": 9642, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 12261, "end_char": 12266, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 62", "label": "PROVISION", "start_char": 13152, "end_char": 13158, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_1_240_249_EN", "year": 1975, "text": "r 240\n\nMOHSIN ALI & ORS.\n\nSTATE OF MADHYA PRADESH April 22, 1975\n\n[V. R. KRISHNA IYER, R. S. SARKARIA AND A. C. GUPTA ]J.J\n\nSovereign grants-Construction of-Surrounding circrunstances as aid of construction-Occasion of grant as aid of constn1ction.\n\nBy Firman of 1934, the then ruler of Bhopal in appreciation of Jong and distinguished service of Sir Liaqat Ali gave him, in addition to the grant of pension,- the residential house in question and a sum of Rs. 400 /- per month C out of the Privy Purse of the Ruler.\n\nLiaqat Ali died in March 1947 without Jeaving any issue or widow.\n\nIn May, 1947, Syed Mohammed Ali, an heir .of Liaqat Ali, who was n;:siding in the said house was forcibly ejected by the Government of Bhopal.\n\nIn 1957, the present appellants being the heirs of Syed Mohammed Ali filed the present suit against the State of Madhya Pradesh for the recovery of the possession o~ this house on the ground that the Firman gifted the house absolutely to Liaqat Ali and that they were entitled to inherit the house. The suit was resisted by the respondent on the ground that the ruler's Firman did not confef absolute title on Liaqat Ali, but only a life interest in the house. The Firman inter-alia stated \"and you are granted your residential house situated at Bara Mahal Shahjahanabad as a gift.\" The Trial Court decreed the suit on the ground that the suit house was gifted by the ruler to Liaqat Ali absolutely.\n\nThe High Court on appeai reversed the finding and held that on a true construction of the Firman Liaqat Ali was given only a life estate. On appeal to this Court, it v.as contended by the appeJlants :-\n\n1. The last sentence of the Firman declares in unambiguous terrms that the grant of the house is an out and out gift.\n\n2. Since the granter and the grantee are Muslims, the gift would under Mohammedan Law have the effect of conveying an absolute heritable estate.\n\n3. In a letter addressed by thr Chief Engineer and Secretary to the P.\\V.D., Bhopal, issued in the year 1938, it was mentioned that the building in question was in the possession and ownership of this Liaqat Ali.\n\nJt was contended by the respondents\n\n1. The grant of the house is not to be disassociated from the penslonary grants.\n\n2. The Firman repTesents a grant made by an absolute ruler in fa\\1our of his subjt:L:t a1Jd wa~ not a hiba n1ade bv CJne Muslim to another lvfuslim under Mohammedan Law.\n\n3. The grant being a sovereign grant has to be construed strictly against the guarantee and imperfection in the language of the Firman had to be resolved in favour of the Government by reading it as a whole in the light of the surrounding circumstances.\n\nH Dismissing the appeal,\n\nHELD : In case of sovereign grants, \\vhere two interpretations are possible, that V.'hich is mot favourable to the sovereign is to be priferred. [244B-CJ\n\nHELD FURTHER--The Firman does not convey in precfre and unequi_vocal terms full and absolute ownership of the suit house to the grantee. The Firman does not use the word like heritable estate or that the grant would take effect from generation to generation or grant to the grantee and his heirs.\n\n[246FJ\n\n' -\n\n- .\n\nfl.eld further-The Firman has to be read as. a \\Vhole.\n\nIt cannot be dis- A sected into three water-tight compartments. It is permissible to consider the surrounding circumstances and the occasion on which this grant was made as legitimate aids to .construction of the Firman. The Firman confers three-fold benefits; pensiQn, Rs. 400!- per month and beneficial interest in the residential house. The object of conferring these benefits was the same, namely, to secure to the retiring servant a handsome maintenance and comfortable residence for the rest of his life. The surrounding circumstances, namely, the grantee had no issue nor ony near relation and was already residing at the suit house, also B' c.:infirm thisi interpretation. [246G, 247A-B].\n\nfIELD FURTIIER-The grant is not a hiba made. in accordance with ivtohan1n1eCan Law. It was a grant ma.de by an absolute ruler to his subject.\n\n[?.48D-E] .\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 166 of 1968.\n\nFrom the. judgment a11d decree dated 5th September, 1962 of the Madhya Pradesh High Court in First Appeal No. 1 of 1956.\n\nHardaya/ Hardy and S. S. Hussain, for the appellants.\n\n'> Ram Panjwani, H. S. Parihar and f. N. Shroff, for the respondent.\n\n~·.I -\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.--By a firma11, dated October 25, 1934, Nawab Sir Hamidullah Khan, the then Ruler of Bhopal State, in appreciation of the long and distinguished services of Sir Liaqat Ali, gave to the latter, in addition to the grant of pensions, the residential house in question as \"inayat ataa\". Sir Liaqat who was already residing in this house, E continued therein till he died, issueless and widowless, in March 1947.\n\nOne Syed Mohammed Ali who was the son of Sir Liaqat's father's sister, also used to reside in this house with the deceased. After Sir Liaqat's death, Syed Mohammed Ali continued in occupation of this house as one of the nine heirs of the deceased, till he was \"forcibly\n\nand unlawfully\" ejected in May 194 7 by the, then Government of F Bhopal.\n\nPaying a \"deaf-ear\" to the repeated demands of Syed Mohammed Ali for restoration of possession, the Government \"persisted in the act of trespass\" and continued in illegal possession of the house.\n\nAfter his ouster, Syed Mohammed Ali also 'died sometime in 1947.\n\nOn April 30, 194 7, the N awab of Bhopal signed the Agreement G of Merger and the State of Bhopal was taken over by the Chief Commissioner on behalf of the Government of India on June !, 1949.\n\nThereafter, on November 1, 1956 the territory of the former Bhopal State became a part of the re-organised State of Madhya Pradesh.\n\nOn August 21, 1957, after serving a notice under s. 80, Code of Civil Procedure, the plaintiffs 1 to 3, who are the son, daughter and H widow, respectively, of Syed Mohammed Ali, instituted the suit against the State of Madhya Pradesh for recovery of possession of the house, on the footing that under the firman, it had been gifted absolutely by the Nawab to Sir Liaqat Ali who died possessed of it as full owner, and on the donee's death, it was inherited by Syed Mohammed Ali who, in turn, was succeeded by the plaintiffs. It was further pleaded\n\nA that Syed Mohammed Ali was \"forcibly and unlawfully\" dispossessed by the Government in May, 1947.\n\nThe suit was resisted by the defendant State on the ground, inter ... alia, that the Ruler's firman \"did not confer absolute title on late Liaqat Ali\", but only a lifo-interest in the house.\n\nB The Additional District Judge who tried the suit, found on a construction of the firman (Ex-P-1), that the suit house had been gifted by the Ruler to late Sir Liaqat Ali, absolutely, and, in consequence, decreed the suit.\n\nOn appeal, a Division Bench of the High Court of Madhya Pradesh reversed that finding and held that \"on a true construction of the Firman (Ex.P-1), the grantee, the late Sir Syed c Liaqat Ali, was given only an estate for life in the suit property, and the plaintiffs as his heirs had no right to inherit it as his property.\" In the result, the appeal was allowed and the plaintiffs' suit was dismissed.\n\nOn a certificate granted by the High Court under Art. !33(1)(a) of the Constitution read with Sections 109 and JI 0 of the Code of D Civil Procedure, the plaintiffs have now come in apl\"'al to this Court.\n\nThe main issue framed by the trial court was in these terms :\n\n\"Was the house in dispute given by the Ruler to Shri Liaqat Ali deceased absolutely or for life only.\"\n\nThe decision of this issue turns on an interpretation of the Firman (Ex.P-1), dated October 24, 1934 whereby the Ruler gave this house to the deceased.\n\nThe original Firman is in Urdu.\n\nAs rendered into English by the courts below, it reads:\n\n\"Hon'ble Motamid-u-Sultan Nasir-ul-Mulk S)'ed Sir Liyaqat Ali\". '-.1\n\n\"Lookin~ into considerations with gratitude your valuable services and faithful sacrifices which you have rendered for more than 30 years and considering the economic condition of the State you have served without remuneration for the last 2 years, your application (for pension) is granted.\n\nYou are granted permission lo retire in lieu of your valuable services from 1st October 1934.\n\nYou should hand over charge of Mushir-ul-Muhami Rubkari Khas to Honourable Shoeb Qureshi.\n\nBesides that pension you are entitled to receive under the Pension Rules of the State Treasury, you are also entitled to receive a sum. of Rs. 400/- as monthly pension from Treasury of Dcodh1 m lieu of valuable services of Deodhi Khas\n\nan_d you are (further) granted your residential house situated at Bara Mahal Shahjahanabad, as gift.\"\n\n..!' The original of the crucial sentence, which has been underlined, A\n\nreads :\n\n\"Aur aapka sakoonti makan waqya Bara Mahal Shahjahanabad apko inayat ataa kiya jata hai.\"\n\nThe Firman was by order published in the Bhopal Government Gazette dated 31-10-1934, under the Heading : 'Pension toAali Mortabt Sir Syed Liaqat Ali Saheb'. Rendered into English, its material part runs thus :\n\n\"Now the said Hon'ble again requests for grant of his previous application on account of rendering service for more than thirty years.\n\nHence His Highness the Ruler of Bhopal Khuld-Allah-Mulkahum considering his valuable services and his faithful sacrifices that he had served without remuneration for the last two years, taking into consideration the economic condition of the State. Considering (all his valuable services) with gratitude (His Highness the Ruler of State) grauts him permission to retire from 1st November, 1934 and also grants him his residential house situated at Bara Mahal Shahjahanabad as gift.\n\nHis Highness the Ruler of Bhopal State further orders that Hon'ble Syed Sir L\\aqat Ali Saheb be paid Rs. 400/- monthly pension from the Treasury of Deodhi Khas in respect of services of Deodhi Khas besides his regular pension under the Rules 'of the State Treasury for which he is entitled to receive from the Treasury of State\".\n\nThe original of the underlined sentence, in the Gazette N otification reads :\n\n\"aur unko sakoonti makan waqya Bara Mahal Shahjahanabad inayat marhmat pharmale hain.\"\n\nIt is to be noted that the disposition evidenced by the Firman, Ex. P-1, is a tripartite grant made by an autocratic ruler to his subject in recognition of !Dng, meritorious services rendered by the latter.\n\nThis grant belongs to the category of disposition, which under the English Common Law are known as \"Crown grants\".\n\nThe tenor and language of the Firman, particularly the words \"aapko lnayat Kiya Jata Hai\" unmistakably mark it out as a Sovereign grant. According to Steingass' Persian-English Dictionary \"inayat\" (Noune) signifies a favour, a gift, a present, a bounty\";\n\nand \"Ataa\" (Verb) means \"to give, to confer a benefit or present with\", H\n\n\"Ataa~' (Noun) implies \"Giving, a present, gift, donation, favour, a\n\ngrant,- endowment, concession; consideration\".\n\nIn the widest sense, 'grant' may comprehend everything that is granted or passed from one to another by deed.\n\nBut commonly the term is applied to rights ,. created or traferred by the Crown, ~.g .. , grants of pensions, patents, charters franchise (See 'Earl Jowtt's D1ct1onary of English Law).\n\nA In England, contrary to the ordinary rule applicable to grants by, i., a subject, grants by the Crown are usually construed most favourably\n\nfor the Crown.\n\nThe rule in case of Royal Grants is that general words will not pass prerogative rights by implication.\n\nThis general rule is, however, capable of important relaxations in favour of the subject. If the intention of the Soverejgn is obvious from the document which in precise, unequivocal terms defines the extent and nature of the benefit conferred, it must take effect. No question of seeking extrinsic aid to its construction arises.\n\nIf the grant is for valuable consideration it must be construed strictly in favour of the grantee, for the honour of the Sovereign and where two constructions are possible, one valid and the other void, that which is valid ought C to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign's profit. Where, however, two interpret; a, tions may be given to the grant, both of which are good, that which is most favourable to the Crown is in many cases preferred (see Halsbury's • Laws of England, 3rd Ed. Vol. 7, Paragraphs 669 and 670 pages 314- 316).\n\nThese rules of interpretation have been applied to Sovereign grants in India, also (see Raja Rajinder Chand v. Sukhi( 1), Gulabdas Jagjivandas v. Collector of Surat( 2 ), Sheikh Sultan Sani v. Shekh Ajmoddin(3), Azziz-un-nissa v. Tasadduq Husain Khan(''), Ram Narayan Sing/• v. Ram Saran Lal(\").\n\nIt is in the light of the above principles that we have to determine whether by tire Firman, Ex. P-1, the Ruler intended to grant a life estate or an absorute estate in the suit house.\n\nMr. Hardy, learned Counsel for the appellants contends that the disposition in dipute would not fall within an exception to the general F rule according to which a Sovereign grant is construed in favour of the Sovereign, because firstly, the last sentence of the Firman, the interpretation of which alone is in question, declares in plain, selfcontained and irnambignous terms that the grant of house is an out and out gift to the grantee, and secondly, the grantot and the grantee, being Muslims, the gift would, under Mohammedan Law, have the effect of conveying an absolute heritable estate. In this connection, G support has been sought from certain observations of the Privy Council in Sardar Nawazish Ali Khan v. Sardar Ali Raza( 6), which are as follows :\n\n\"In general, Muslim Law draws no distinction between real and personal property, and their Lordships know of no authoritative work ......... which affirms that Muslim Law recognizes the splitting up of ownership of land into estates,\n\n(1)11956] SCR 889 as per S. K. Das J. at p. 902.\n\n(') 6 I.A.5 4\n\n(') 30 I.A. 50.\n\n1(<) 28 I.A. 65.\n\n(5) !LR 46 Cal. 683 (P.C.).\n\n(6) 75 I.A. 62 at 77.\n\n. -\n\nor in point. of quality like legal and equitable estates, or in - point of duration like estates in fee sample in tail, for life, or in remainder. What Muslim Law does recognize and insist on, is the distinction between the corpus of the property itself (ayn) and the nsufruct in the property (manafi). Over the corpus of the property the law recognizes only absolute dominion, heritable and unrestricted in point of time, and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the conditfon is rejected as repugnant, but interest limited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect subject to any such limited interests.\" (emphasis added)\n\nMr. Hardy refers to the letter, dated 29-6-1938 (Ex. P-3) of the Chief Engineer and Secretary, P.W.D., Bhopal whereby two maps of the 'house, Nawab Manzi! were sent to the grantee. The portions shown in light red colour in these maps were referred to in this letter as in the \"possession and ownership\" of th'e grantee according to the Gazette Notification No. 7, dated 31st October, 1934.\n\nAs against the above, Mr. Panjwani, learned Counsel for the Respondent submits that the grant of the house is not to be dissociated from the pensionary grants; that even the last sentence of the Firman, read in the context along with its preamble reaso.tiably bears only one construction viz., that a right of residence for life, to be conveyed by the Ruler to the grantee. Stress has been laid on to be conveved by the Ruler to the grantee, Stress has been Jaid Oh\n\nthe fact that there are no words such as, nasa/an-dar-nasalan, pushatdar-pushat etc. in the language of the Firman showing that absolute heritable rights in the property were conferred on the grantee. Coun- Jsel further maintains that the Firman represent' a grant made by an absolute Ruler in favour of his subject on the occasion of the latter's retirement from service and that it was not a mere hiba made by one Muslim under Mohammedan Law to another Muslim. Reference to Mohammedan Law, proceeds the argument, has no relevance. It is urged that the grant being a SoYereign grant, had to be construed strongly against the grantee, and imperfections in the language of the Firman had to be resolved in favour of the Government, by reading it as a whole in the light of the surrounding circumstances and even the subsequent conduct of the then Bhopal Government in ejecting, Syed Mohammad Ali from the house in May, 1947.\n\nThat ejectment, according to the Counsel, amounted to resumption of the grant-(by the grantor) who was then alive and was still the absolute Ruler of Bhopal state.\n\nCounsel has referred to several authorities in support of these contentions.\n\nWe are not persuaded to accept the appellant's contention that the Firman conveys, in precise and unequivocal terms, full and absolute ownership of the suit house to the grantee. In our opinion, the language of the last sentence of the Firman, which\\ is the sheetanchor of this contention, even by itself; does not indubitably and\n\nA unequivocally indicate that the intention of the Ruler was to grant an absolute estate. The Firman .is conspicuous by the non-employment of any words declaring that thenceforth the grantee would have a heritable estate in the house or that the grantpr had transferred all bis rights in the property, absolutely in favour of the grantee. There is no use of such words that the grant would take effect as \"nasalan-dar- B_ nasaln\", \"from generation to generation\" \"towarsan, kaiam u qaman\"'\n\n\"to grantee and his heirs\" etc. pointing towards the creation of a heritable estate. Even the use of such terms by itself, has been held to be an inconclusive indication of the grantor's intention to confer absolute, heritable rights. Thus, in Gulabdas Jagjivandas's case (supra) despite a reference in the sanad to the children or descendants' of the C grantee, the Judicial Committee held that the grant bad not been made \"on terms which would make them hereditary\".\n\nAgain, in Sheikh Sultan v. Shekh Ajmoddin (supra), delivering the judgment of the Board, Lord Hannen quoted with approval, a minute dated 15-3-1922, recorded by Sir Thomas Munro in which he states that the terms .in such documents ( sanads) 'for ever' from gene- D ration to generation or in Hindu grants, 'while the sun and moon endure', 'are mere forms of expression', and were neve1 supposed either by the donor or receiver 1o convey the durability which they imply or any beyond the will of the Sovereign. On the authority of another minute recorded by Sir Thomas Munro, it was further observed \"that while the seizure of private property by the native princes would have E been considered unjust by the country, Jagir grants were not regarded by the people in the light of private property\".\n\nIt is not necessary to multiply authorities with regard to the construction of such customary terms which could possibly be indicative of the grantor's intention to make a heritable grant, because the Firman Ex. P-1, is benefit of all such terms. It will be sufficient to sav F that the language of the Firman does not in clear and unambiguous terms express an intention to create an absolute estate' in favour of the grantee and bis heirs. The Firman has therefore to be construed in accordance with the well-established rule of construction applicable to Sovereign grant.\n\nAnother cardinal canon of interpretation to be borne in mind G is that in order to ascertain the real intention of the grantor, the Firman has to be read as a whole. It will not be correctas the appellants want us to do to dissect the Firman into three water-tight compartments or to read last sentence of the Firman out of the context. It is also permissible to consider the surrounding circumstances and the occasion on which this grant was made, as legitimate aids to construction of the Firman (see Gu/abdas Jagjivandas v. Collector of Surat (supra).\n\nH The occasion for the grant as apparent from the preamble of the Firman, Ex.P-1, (reproduced in the Notification Ex.P-2) was that the grantee, Sir Liaqat Ali, having attained the age of superannuation, was retiring with the permission of the grantor, after putting in \"valuable\" and \"faithful\" service for more than thirty years, including two years for which he served without remuneration, in view of the\n\n.. . '\n\n\\ l\n\npoor economic condition of the State .• An analysis of the Fir'!'a11 will A show that it confers three-fold benefits on the grantee. Firstly, 1t grants him such pension as would be admissible under the Service Rules. This he would draw from the State Treasury.\n\nS.econdly, in addition to the first, it gran!s him pension at the. rae of Rs. 400 /- per mont~\n\nwhich the pner would be entitled to drw frm the Dwdh1\n\nTreasury i.e., Privy Purse of the Ruler. Tlnrdly, It grants hun a . B beneficial interest in the residential house, in these terms : \"A ur aapka sakoonti makan waqya Bara Mahal Shahjahanabad apko inayat ataa kiya jata hai''.\n\nAs is indicated in the Fil man (Ex.P-1) (P-2J NolihcatJon i11 1naking c this tripartite grant the Ruler was actuated by consideration of. _gratitude for the valuable services rendered by the grantee.\n\nThe object of conferring these three-fold benefits was the same, namely, to secue to the retiring servant a handsome maintenance and comfortable residence for the. rest of his life.\n\nIn other words, all the three benefits . granted under this Fil'lnan were cognate benefits, arising out of the , \"D\n\nsame occasion, and made with the same object in view viz., to enable the grantee to live comfortably in retirement. These related benefits could be compendiously described as \"retirement benefits\". The first t\\vo benefus were indisputably pensionary benefits enuring only for the life-time of the grantee. All the three kindred benefits, including the one in question, were exprei; sly meant for the person of the grantee. This is clear from the word 'apkd' which means \"to you\" in E the phrase \"apko inayat aiaa kiya jata hai'\" The .conjunc.tion \"aur\"\n\n(and) at the commencement of the last-sentence of the Firman inextricably Jinks the grant of interest in the residential house, with the pensionary benefits conferred in the foregoing parts of the Firman. Jn short, ail the three-fold benefits granted under this Firman are offspdng of the same genus. The language of the Firman relating direct- F ly to the grant in question therefore takes its colpur from the preceding parts of the Firman relating to the pensionary benefits conferred on the grantee for life. Thus if the crucial words quoted above, are construed in the context of the akin grants, andaccording to the general tenor of the Firman as a whole, it becomes clear that the. intention of the Ruler was to grant only a right of residence limited to the life time of the grantee-and not an absolute estate in the. house.\n\nThe snrronnding G crrcumstanc.es also confirm the interpretation, adopted by us.\n\nThe first sue~ circumstance was that at the time of the grant, the grantee\n\nad no issue, nor any near relation. Indeed, he died widowless and 1ssne-Jess. In this context, co11pled with the omission, of any wores\n\nsch as to \"grantee and his heirs\" or \"nasalan-dar-nasalan\" indicatmg the grant to be heritable, it would be reasonable to hold that the\n\ngrat was intended to be for life only. .\n\nThe_re is yet. another circumstance which points towards the same\n\ncoclus1~11. It JS. that at the time of the grant the grntee was alread res1d.mg !n the smt house. In this context, the word \"sakoonti\" ('resl denl!al) m the last l?art of the Firman used in aS!>ociation with 'makan'\n\n(honse) assumes significance.\n\nIt suggests that the intention of th\n\nIOSC/75-17 e\n\nA grantor was to convey to the grantee no more than a right of residence in the house which the latter was already enjoying.\n\nThe letter Ex.P-3 written by the Chief Engineer on 29-6-1938 is of hardly any assistance in construing the grant made three or four years earlier. It could not be treated as contcmperaneous conduct of B the grantor or his agent, which could legitimately be taken into consideration in construing the grant.\n\nOn parity of reasoning, it is doubtful whether the fact of eviction of Syed Mohammed Ali from the suit house, about two. months after the death of the grantee and about 15 years after the grant, could justifiably be called in_,}id as a \"surrounding circumstance\" to interpret C the Firman dated 24-10-1939. The High Court has taken this circumstance also into account.\n\nWe need only say that even after excluding this circumstance, there remains sufficient and sound foundation in the language of the Firman and the contemperaneous surrounding circumstances, including the common genus, the same occasion and purpose of the three-se1ided grant, to hold that the Rule1 had conferred D only a limited estate in the suit property for the life-time of the grantee.\n\nThe argument advanced on behalf of the appellants that the grant in question was a 'hiba' made in accordance with Mohammend1n Law by one Muslim toanother, has been stated only to be rejected. To all intents and purposes, it was a grant made by an absolute Ruler to his E subject who, had rendered long meritorious services, on the eve of his retirement. Reference to Muslim law is herefore misconceived.\n\nWe may, however, say in passing that even according to the observations of the Privy Council relied upon by the C..ounsel. creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.\n\nMr. Panjwani has advanced an alternative argument also, to suppcrt the decision of the High Court.\n\nThe contention is that even if it is assumed that the house had been given to Sir Liaqat Ali absolutely, then also the grant had come to an end on resumption of the possession of the house by the Government of Bhopal in 194 7, and thereafter the grant continued to be non-est because after the merger of the State of Bhopal on 1-6-1949, it was not recognised by the Government of India or by the new Government of Madhya Pradesh after Bhopal became a part of that State on 1-11-1951. Rather, as per Ex.P-6, the new Government after the disappearance of Bhopal State from the scene, repndiated the grant.\n\nIn these circumstances, submits the Counsel, the appellants did not carry with them the right, if any, they had under the grant as subjects of the Ex-Sovereign Ruler of Bhopal H and after the extinction of Bhopal State and its Ruler, they had only such rights as were granted or recognised by the new Sovereign i.e. the Central Government. According to the Counsel, the plaintiffs' claim was not enforceable in the municipal courts. Reliance has been placed on the decision of this Court in State of Gujarat v. Vora F]difali Badn1_ddin !.fit_hibarwale('); ,\n\n1[1964] 6 S.C.R. 461 at 551. • ·\n\n' . - •\n\n.. •\n\n\\ J\n\nThere is no foundation for the plea either in the pleadings or in the A issues.\n\nWe therefore do not allow it to he raised for the first time in this Court.\n\nFor the foregoing reasons, the appeal fails and is dismissed with costs.\n\nP.H.P .\n\nAppeal dismissed.", "total_entities": 14, "entities": [{"text": "240\n\nMOHSIN ALI & ORS", "label": "PETITIONER", "start_char": 2, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "MOHSIN ALI & ORS", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 67, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 87, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 106, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "the State of Madhya Pradesh", "label": "RESPONDENT", "start_char": 829, "end_char": 856, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "s. 80", "label": "PROVISION", "start_char": 5831, "end_char": 5836, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 5838, "end_char": 5861, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sections 109", "label": "PROVISION", "start_char": 7349, "end_char": 7361, "source": "regex", "metadata": {"statute": null}}, {"text": "Besides that pension you are entitled to receive under the Pension Rules", "label": "STATUTE", "start_char": 8420, "end_char": 8492, "source": "regex", "metadata": {}}, {"text": "Hence His Highness the Rule", "label": "STATUTE", "start_char": 9279, "end_char": 9306, "source": "regex", "metadata": {}}, {"text": "His Highness the Rule", "label": "STATUTE", "start_char": 9584, "end_char": 9605, "source": "regex", "metadata": {}}, {"text": "His Highness the Rule", "label": "STATUTE", "start_char": 9762, "end_char": 9783, "source": "regex", "metadata": {}}, {"text": "Privy Purse of the Rule", "label": "STATUTE", "start_char": 21004, "end_char": 21027, "source": "regex", "metadata": {}}, {"text": "[1964] 6 S.C.R. 461", "label": "CASE_CITATION", "start_char": 27060, "end_char": 27079, "source": "regex", "metadata": {}}]}
{"document_id": "1975_1_250_264_EN", "year": 1975, "text": "BALWANT NARAYAN BHAGDE\n\nM. D. BHAGWAT & ORS.\n\nApril 23, 1975\n\n[P. N. BHAGWATI, A. C. GUPTA AND N. L. UNTWALIA, JJ.]\n\nLand Acquisition Act (1 of 1894) ss. 9(1), 17(1) and 48(1)-Possession taken of acquired land--Occupant resurnir1g possession-Effect of-If Governnient can withdraiv /ro1n the acquisition.\n\nFor the purpose of acquiring land for an Agricultural College a notification was issued under s. 4 of the Land Acquisition Act, 1894, in January 1959, with respect to several pieces of land one of which belonged to the respondents and was in possession of the appellant as tenant.\n\nAfter the issue of the notification. under s. 6, in February 1959, the Commissioner directed that possession of that land may be taken Under s. 17 ( 1) on the exJriry of 15 days from the publication of the notice under s. 9(1).\n\nOn March 24, 1959, the appellant :flled a statement before the Land Acquisition Officer.\n\nIn that statement, he did not deny the publication of notice on the spot under s. 9( 1) nor did he put any impediment to the taking of the land.\n\nHe merely wanted the compensation amount to be paid to him and wanted stay of the taking possession of his house on the Iand.\n\nThe Land Acquisition Officer passed orders in the presence of the appellant directing the Tnhsildar to take possession of the land and hand it over to the Principal of the Agricultural College.\n\nThe Tahsildar went to the spot, inspected the land for the purpose of deter:mining \\vhat part was waste and arable and should therefore be taken possession of and took possession of the land, leaving out the small portion containing the house of the appellant, and handed over possession of the land so taken over to the Principal of the Agriculturai Coilege. The appellant was not present at the time when the Tahsildar took posiession. There was, thereafter, corrcsnondence between the appellant and the Government. and various reports had been made by the officers of the Government and on April 16, 1959, a stay order \\Vas passed by the Government.\n\nOn December 13, 1961, the Land Acquisition Officer wrote to the Commissioner that pos_session of the land was still \\Vith the appellant. and on August 8, 1968, withdrawal from the acquisition of that part of the land under s .. 48(1) of the Act, was directed by the Commissioner.\n\nThe respondents and the Agricultural College filed writ petitions in the High Court, challenging the release of the land.\n\nThe High Court a11owed the petitions holing that posseion of the land was taken (even though the Government took the stand that thev had taken onlv 'svmbolical' oosse-sion) and given to the Principal of the College and that, therefore, it was not open to the Commissioner to withdraw from the acquisition under s. 48 ( 1) as amended by the Land Acquisition (Maharashtra Extension and Amendment) Act.\n\nDismissing the appeal to this Court,\n\nH HELD : ·(Per Curiam) : Neither the Government nor the Comn1issionet could withdraw under s. 48(1) from the acquisition of any portion of the land v1hich had been taken over by and vested in the Government. [253-El\n\n(Per P. N. Bhagv;'ati and A. C. Gupta JJ) : When Government proceeds to take possession of the land acquired by it under the Act. it must take actual posses:ion since all interests in the land are sought to be acquired by it, and there is no question of taking 'symbolical' possession as understood\n\n~·-\n\n- ..\n\n' I\n\nB. N. BHAGDE V. M. D. BHAGWAT\n\nunder the C.P.C.\n\nNor would possession merely on paper be enough.\n\nHow such actual possession may be taken would depend on the nature of land.\n\nIt is not an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking possession of land in every case.\n\nIt is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or occupant of -the land that possession would be taken at a particular time, though it may be desirable to do so in order to eliminate the possibility of a fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever knowingabout it. [252E-H, 253ABl\n\nOn the facts and circumstances of the present case, the Tahsildar had taken actual possession of that part of the land which was waste or arable and handed it over to the Principal of the College.\n\nThe Land Acquisition Officer thought that actual possession could not be regarded as having been taken unless the appellant was excluded from the land, and, since the appellant, without any obstruction entered on the land and continued in possession, he mistakenly statea that actual possession was not taken. The legal position is that even ff the appellant entered upon the land after actual possession had been taken by and the land vested in, the Government, the appellanfs possession would not obliterate the consequence of vesting in the Government. (253-B-E]\n\n[Discussion regarding delivery of 'symbolical' and 'actuaJ' possession under the C.P.C. is not necessary for the disposal of the appeals].\n\n[252-D}\n\n(Per Unt\\valia J.) : (1) Under the C.P.C., a symbolical or formal delivery of possession has the effect of dispossessing the judgment-debtor from his right; title or interest in the property, although, as a matter of fact, he may have succeeded in resuming possession shortly after dispossession.\n\nIt does not, however, dispossess the person in actual possession in his own right not liable to be evicted under the decree or in pursuance of the auction sale.\n\n[263A-B] ·\n\n(2) When a public notice under s. 9(1) of the Act is published at a convenient place or near the land to be taken that Government intends--tcf take possession, ordinarily there would be no question of resisting or impeding the taking of possession. Delivery of possession by the owner isnot required and the Coliector can enforce surrender under s. 47 if impeded.\n\nOn taking possession either under s. 16 or s. _17(1), the land ests absolutely in the Government free from q.11 encumbrances.\n\nTherefore, in a proceeding under the Land Acquisition Act for acquisition of land all intere!t& are wiped out and hence, the taking of possession must be taking actual possession on th~ spot and not symbolical possession ; and surety it cannot be a possession merely on paJ>Cr.\n\n[263E-G]\n\n(3) As to the mode of taking possession, the Act is silent.\n\nUnless possession .is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land a_nd do some act which woul~ indicate that the authority has taken\n\nposess1on of th~ land. It may_ be 1n te form of a declaration by beat of' drum ?r otherwise or by hanging a wntten declaration on the spot that possession has been taken.\n\nThe presence of the owner or the occupant is not necessary to effectuate the taking of possession.\n\n[263H, 264A]\n\n( ~) In the instant case, actual possession of the land was taken by the H Tahstldar on the spot and the. possession was handed over to the Principal bf the College.\n\nThe Land Acquisition Officer's statementthat the land was not act_ually taken possession and te Government's stand that only symbolical possession was taken, should be viewed from the correct legal P'Osition.\n\nSo viewed, the appellant's resuming possession after once the land \\vas validly take_n by the Government would not have the effect of undoing the fact of vesting 10 the Government.\n\n[264B, E-F]\n\nA CIVIL APPELLATE JuR'SDICTION : Civil Appeal No. 75 & 76 -of\n\n1974.\n\nAppeal by special leave from the Common Judgment and Order dated 27 /28-9-1973 of the Bombay High Court, Nagpur Bench, in Sp!. Civil Applications Nos. 826 of 1968 & 389 of 1971.\n\nSardar Bahadur Saharya and Vishnu Bahadur Saharya, for the appellants.\n\nM. N. Plzadke and A. G. Ratnaparkhi, for respondent No. 1 and 2 (In Appeal No. 75/74).\n\nNiren De, Attorney General of India, M. N. Phadke and A. G: Tl.atnaparkhi, for respondent No. 1 (In Appeal No. 76/74).\n\nK. L. Rathi and M. N. Shroff, for respondents Nos. 3-6. (Ii; Appeal No. 75/74) and respondent No. 3 (in appeal No. 76/74).\n\nThe Judgment of P. N. Bhagwati and A. C. Gupta, JJ. was delivered by Bhagwati, J. N. L. Untwalia, J. gave a separate Opinion.\n\nBHAGWATI, J.-Wc agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based.\n\nBut we are writing a separate judgment as we feel that the discussion in the judgment of our learned brother Untwalia, J., in regard to delivery of 'symbolical' and 'actual' possession under rules 35, 36, 95 and 96 of Order XX! of the Code of Civil Procedure, is not necessary for the disposal of the present appeals .a, nd we do not wish to subscribe to what has been said by our learned brother Untwalia, .T., in that connection, nor do we wish to express our assent with the discussion of the various authorities made by him in his judgment. We think it is enough to swe that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it.\n\nThere can be no question of laking 'symbolical' G possession in the sense understood by .iudicial decisions under the Code of Civil Procedure.\n\nNor would possession merely on paper be enough.\n\nWhat the Act contemplates as a necessary condition of vesting of the ia, nd in the Government is the taking of actual possession of the land.\n\nHow such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admit• of. There can be no hard and H fast rule laying down what , apt would be sufficient to constitute taking\n\nof possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by bea, t of drnm or otherwise would be sufficient to constitute taking of possession of Tand in every case.\n\nBut here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in\n\n\\ '\n\n- .\n\nB. N. BHAGDE .v. M. D. BHAGWA'l 253\n\ngoing on the spot and inspecting the land for the purpose pf deter- A mining what part was waste and arable and should, therefore, be taken possession of a, nd determining its exteut, was s4fficient to constitute taking of possession. It appears that the appellant was not . present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession.\n\nIt is also not strictly necessary as B a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desira, ble where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.\n\nWe are of the view, on the facts and circumstances of the present case, that the Tehsildar took actual possession of that part of the land which was w.a.ste or arable arid handed it over to the Principal of the Agricultural College. It is true that the Special Land Acquisic D tion Officer in his Jetter dated f3th December, 1961 to the Commissioner stated that possession of the entire land was still with the appellant and itwas not actua, lly taken possession of by the Principal, Agricultural College. But it is obvious that this £tatement was made by the Special Land Acquisition Officer because he thought that actual possession of the la, nd could not be regarded as having been taken, unless the appellant was excluded from the land and since E -the appellant immediately, without any obstruction, entered upon the\n\nland and continued in possession, \"the land was not actually taken possession of by the Principal, Agricultural College\". This was plainly erroneous view, for the legal position is clear that even if the apjlellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became F vested in the Government, such act on the part of the ; ippellant did not have the effect of obliterating , the consequences of vesting.\n\nThere can, therefore, be no doubt that actual possession of 19 acres 16 gunthas of. waste a.nd ara, ble land w.as taken by the Tehsildar on 3rd April, 1959 and 1t became vested m the Government. Neither the Government nor the Commissioner conld thereafter withdraw from the acquisition of any portion of this land under s. 48 (1) of the Act G\n\nThe result is that the appeals fail and are dismissed with costs.\n\nThere will be only one set of costs.\n\nUNTWAL!A, J.-These two Civil ApPeals filed bv Shri Balwant Narayan Bbagde . on grant of special leave by this Court arise H out of a common Judgment of the Bombay High Court allowinrr Special Civil Application No. 826/1968 filed by Shri M DM\n\nB~gwat and Shri E. R.\n\nMahaiani, respandent Nos. 1 and. 2 j~ Civil ppeal No. 75 of 1974 and Special Civil Application No. 389/ 1971 tild by the Punjabrao Krisbi Vidyapeeth-(hereinafter called the Agncultural Collge )-to quash the order of the Commissioner ,\n\nA Nagpur purporting to give sanction for withdrawal of the acquisition by bis letter dated 8-8-1968 in respect of a portion of the land comprised in Survey No. 30/2 in village Umari, District Akola.\n\nThe High Court hp, s held that possession. of the land in question wa~ taken by, the Collector, Akola and given to the Principal, Agricultural College. It was, therefore, not open to the Commissioner to withdraw B from the acquisition of the land under section 48 ( 1) of the Land Acquisition Act, 1894 as it stands amended by the Land Acquisition (Maharashtra Extension and Amendment) Act-hereinatfer called the Act. It is well-settled and nothing t.o the contrary was canvassed before us, that after possession of the land forming the subject matter of acquisition has been taken in accordance with section 16 or section 1 7 ( 1) of the Act, the la, nd vests in the Government and the Government C or any other authority is not at liberty to withdraw from the acquisition\n\n0f any land of which possession has been taken; vide, Slate of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.(') and Lt .. Governor of Himacha/ Pradah and Another v. Sri Avinash Sharma(~). The controversy, therefore, centered round the question as to whether possession of the land which was released by the Commissioner under D section 48 (1) of the Act had been tp, ken or not.\n\nFor the purpose of the Agricultural College a large area of land was acquired near Akola. A notification under section 4 of the Act was issued on the 24th January, 1959 by which several pieces of land\n\nmesuring 236 acres 7 gunthas ( 40 gunthas make one acre) were sought to be acquired including 20 acres 32 gunthas of Survey No.\n\nE 30/2 in Village Umari, Pargana Akola.\n\nThe total area of this plot is 20 acres 33 gunthas. A separae notification under-section ( 4) wa, s issued for acquisition of the remaining one guntha which contained a well. As the land was urgently required for the purpose of College, action under section 17 of the Act was taken dispensing with the following of the procedure under section SA.\n\nThe Sob-Divisional F Officer, Akola wa, s appointed the Land Acquisition Officer to perform the functions of the Collector under the Act.\n\nA notification under section 6 of the Act was issued on the 17th February, 1959. A direction was given for taking possession of the land under section 17 (1) on the expiration of 15 days from the publication of the notice under section 9(1). Notice under section 9(1) of the Act was subsequently published on 6-3-1959. After expiry of 15 days from the publication G of the notice under s\"ction 9(1) on 24-3-1959 the Land Acquisition\n\nOfficer ordered the Tchsildar, Akola to deliver possession of the land to the Principal, Agrknltural College or his nominee in the presence of the, Sub-Divisional Officer. P.W.D. Building and Roads Section, Akola and directed him to rep.ort compliance alongwitb the possession receipt obtained from the Principal by 2-4-1959. The Tehsildar took and ha.oded over possession on 3-4-1959 and made a report. Out of H 20 acres 33 gunthas of land comprised in Survey No. 30/2 possession was taken and handed over in regard to 19 acres and 16 gunthas only. An area of 1 acre 17 gunthas which contained a double storied house of the appellant and a we11 etc. was for the time being left and possession of the same was not taken.\n\n'[196<\\1 3 S.C.R. 557. '[1970] 2 s.c.c. 149.\n\nIt appears, just after the i'ssuance of the notification under section 6 of the Act, .the appellant who claimed to be the tenant of the land, the owners admittedly being respondents 1 and 2 in Civil Appeal No. 75 of 1974 made a representation to the Government that his field in Survey No. 30/2 should not be acquired'-and the acquisition should be withdrawn.\n\nHe seems to have filed an application to that effect before the State Government on 18-2-1959. Some stay order thereupon is said to have been passed staying the proceeding in respect of the appellant's land. Following upon this correspondence took place and reports came to be made in April, 1959 and thereafter until the withdrawal from the acquisition of 12 cres and 23 gunthas of the land in Survey No. 30/2 was directed to be made by the Commissioner in the year 1968. As already stated the withdrawal was challenged by filing two writ petitions in the Bombay High Court.\n\nThe appellant filed a counter in tbe Writ application of the owners but did not do so in answer to the Writ application of the College.\n\nOn behalf of the Governmental authorities two counters were filed in the two Writ Petitions. In the owners' petition the petitioners had stated that pursuant to the relevant notifications, Government took possession of 19 acres 16 gunthas of land on 3-4-1959 a, nd gave possession of the same to tbe Principal, Agricultural College.\n\nThe Government in its return filed in the said case denied that possession as alleged was taken from the appellant and given to the Principal, Agricultur; i1 College.\n\nIn paragraph 3 of Special Civil Application No. 389/1971 it was stated on behalf of the Agricultural College that the Tehsildar took possession only of 19 acres and 16 gunthas out of the field as the remaining area was found in the meantime on spot inspection not to be waste or ara.ble to which the provision of section 17 of the Act could apply.\n\nActual possession of 19 acres 16 gunthas a!ongwith the other pieces of land measuring 200 acres and odd was delivered to the Principal, Agriculfural, College. Jn the return filed on behalf of the Officers of the Government the contents of paragmph 3 of the petition were admitted. But it was asserted that Government had taken only symbolical possession and the physical possession of the land remained with the appellant. On consideration of the relevant materials placed before the High Court it has come to the conclusion tha, t actual possession of thJ: land in question was taken and handed over on 3-4-1959 on the spot; and, even •ymbolical possession, if land is occupied by a person other than the owner. would be good possession for the purpose of section 48 of the Act.\n\nMr. Sardar Bahad1;1r Saharya, lean:ied counsel for the appellant, submitted that possess10n of any portion of the land comprised in Survey No. 30/2 was not taken by the Government or given to the H Prin.cipal, Agric_ultural College,. it was all a paper delivery of possession, no notice was ever given' to the appellant as to the date and time of taking possession of the land on the spot and the symb?lica~ delivery of possession, even if any, had not the effect of d1vestmg the ppellant from the a, ctual possession over the land, Counsel further submitted that the order of withdrawal which is confined to\n\nA an area of 12 acres 23 gunthas only out of Survey No. 30/2 leaving a further balance of 6 acres 3 3 gunthas to the College was v; ilid.\n\nMr. Hathi appearing for the Government and its authorities struck to their stand that only symbolical possession was iaken and ; i.ctual possession remained with the appellant. Learned Attorney General for the Agricultural College, followed by Mr. Phadke for the owners, B submitted that no where the appellant had ch; t.llenged the taking of possession of the land on the spot on 3-4-1959.\n\nThe effect of taking posession of the rand was to vest it in the Government and no portion of it could be released under section 48 (1) of the. Act. It was further submitted that there is no provision in the Act requiring the giving of any notice to the possessor of the land of the exact date and time of ta.king possession on the spot and notice published C under section 9(1) is sufficient.\n\nIt may he stated at the outset that there does not seem to he any dispute as respects the fact that Bhagwat and Mahajani were the owners of the land , a, t the time of the issuance of the notification ·• under section 4 of the Act and the appellant was in it; occupation or D actual possession as a tenant. It is also not in dispute that possession was taken on 3-4-1959 in respect of the large portion of land measuring more than 200 acres. There is no controversy that the Agricultural College not only needed the land in question but subsequently steps were taken for acquiring an additional area of 340 acres for the needs of the College.\n\nE The Commissioner in his order dated 17th February, 1959 had directed that the possession of the land may be taken on the expiration of 15 days from the publication of the notice mentioned in section 9(1) of the Act.\n\nThe. order recorded on 11-3-1959 shows that the notice in form 'D' under section 9(1) of the Act was published on 6-3-1959, so the possession of the land could be taken on 21-3-1959 or there- F after. Some persons filed their written statement showing their interest in the land to be acquired and their claims for compem, a, tion on 11-3-1959. On 24-3-1959 various other persons including the appellant appeared before the Land Acquisition Officer.\n\nAppellant's counsel prayed for time to file his written statement. He was directed to do so by 5.00 p.m. on 24-3-1959.\n\nOn this date the land Acquisition Officer recorded the order in presence of the parties including the G a, ppellant directing Tehsildar Akola to take possession of the land and hand it over to the Principal, Agricultural College, in the presence of S.D.O., P.W.D .. Akola and to report compliance with possession receipt by 2-4-1959. A written statement on behalf of the appellant was filed by 4.20 p.m. on 24-3-1959.\n\nTt is necessary to refer to the claim of the appellant made in the written statement aforesaid.\n\nHe stated that he was interested in the field as he was its protected lessee and as such he was entitled to receive compensation that mav be wanted. The amount of claim put forward in respct of the field in Survey No. 30/2 by Bhagwat and Mahajani was stated to be acceptable to the appellant. But he said that he was entitled to the said am'ount.\n\nIn respect of the bungalow the appellant stated that it was his residential house, it was not necessary to be acquired, dispensing with the provision of section 5A in A respect of the house was not legal, therefore, the proceeding being not in a, ccordance with law be dropped.\n\nFinally, the prayer in the written statement was to stay the delivery of possession of the bungalow at least for two months. It would thus be seen that in his' written statement.filed on 24-3-1959 the appellant did not deny the publication of notice on the spot under-section 9 ( 1) nor did he propose to B put any impediment in the taking of possssion of the land comprised in Survey No. 30/2. He merely wanted the stay of taking possession in respect of the house.\n\nThe Principal of the Agricultural College wrote a letter to .the Sub- Division Officer and Land Acquisition Officer, Akola on the 6th April, 1959 with an endorsement of the Revenue Inspector who it appears C was the Tehsildar, stating therein that he had ta)cen J?OSsession ot the fields mentioned below in the letter on the 3rd April, 1959, in presence of the Sub-Divisional Officer, P.W.D. and the Naib Tehsildar, Akola.\n\nThe total area mentioned in this letter is 234 acres 31 gunthas including 19 acres a, nd 16 gunthas in Survey No. 30/2. The Revenue Inspector endorsed \"handed over as above.\" D\n\nOn the facts and in the circumstances of this case it is difficult to accep\\ the argument put forward on behalf of the appellant that the taking 1>11d giving of possession on 3-4-1959 was only on paper and not on the spot.\n\nThe High Court in its judgment has referred to a letter dated 7-4-1959 by the Land Acquisition Officer to the Collector, Akola to say that the appellant represented before him that a stay order had been passed in respect of Survey No. 30/2 by the Minister for Agriculture and the proceedings for taking possession of this land may be deferred pending further instructions from the higher authorities ; but before any step could be taken on the representation of the appellant, tbe land Acquisition Officer. got the information that possession lrnd been taken and given bnt in spite of that in the letter dated 7-4-1959 a direction w; a, s given to tbc Tehsildar to withhold taking possession of the field in Survey No. 30/2 of village Umari temporarily. Thereupon, the Tehsildar made a report dated 11-4-1959 stating therein\n\n\"possession has already been delivered to the Principal, Agricultural\n\nCollee, Akola and the possession receipt is enclosed. In case possession of S. No. 30 /2 is still to be withheld, the Princip11l, Agricultural College, S.D.O., P.W.D. and the lessee of the field would be approached in this respect and necessary action would be taken accordingly.\" As a matter of fact it would appear from the letter dated t\"6-4-1959 written bv the Assistant Secretary of the Government of Bombav to the 11ppellant in reply to his letter addressed to tlie Minister for Ari culture a copy of which was forwarded to the Collector Akola that for the first time in this letter he was requested to stay th~ proceedings until further orders.\n\nNo stay order of the State Government seems to ha.vc rece?ved earlier and prior to the taking of possession of the land m question .\n\n. . Then comes the letter d, a, ted 4-5·1959 written by the Land Acquis1t1on Officer to the Collector, Akola. Reference 'Mas made to al! these\n\nA documents on behalf of both the parties. The S.D.O. and the Land Acquisition Officer sought instructions of the Collector as to what action was to be taken in respect of land measuring 19 acres 16 gunthas out of Survey No. 30/2 \"the possession of which has already been delivered to the Agricultural Department\". The next letter is one from the Principal of the College to the Land Acquisilion Officer dated the B 27th May, 1959 asking clarification of the stay order received in regard to Survey No. 30/2.\n\nThe reply is dated 4-6-1959 informing him that clarification will be made on receipt of further communication from the Collector.\n\nThe next letter is dated 18-7-1959 from the Principal of the C Collge to the Director of Agriculture stating therein that possession of the whole field no. 30/2 excluding Lhe area of 1 acre 16 gunthas which was also required for the purpose of the College, was delivered on 3-4-1959 but in view of the Government .order contained in their letter dated 16-4-1959 the land was not being cultivated and was lying as a sort of no man's land. 'f\n\nD Then comes an important letter again referred at the Bar on behalf of both the parties written by the Special Land Acquisition Oflicer, Akola to the Commissioner, Nagpur on the 13th December, 1961. The difficulty in releasing the land under section 48(1) was pointed out and further, in this letter it is stated \"Taking over possession of 1A-15G of land to be acquired under urgency clause was deferred as on joint E spot inspection made by the then Sub-Divisional Officer. Principal Agricultural College and S.D.O. (P.W.D.) Akola, it was thought that acquisition of this portion which contains one double storied building, some converted land etc. would entail heavy expenditure.\" It would thus be clear beyond any shadow of doubt that possession was taken on the spot.\n\nOn spot inspection the area of I acre and odd only F was left out of f<Jssession.\n\nBut then in this very letter there is a statement \"The Collector Akola was directed to stay the acquisition proceedings in respect of this field until further orders, though possession receipt for S. No. 30/2 was passed on 3-4-1959, the possession\n\n(physical) of the entire field S. o. 30/2 of Umari iS still retained by the lessee of that field and the land was not actually iaken possession of by the Principal, Agricultural College, Akola.\" Learned counsel for G the appellant submitted that physical possession of the entire land\n\ncomprised in Survey No. 30/2 remained with the appellant and the possession delivered was either on paper or merely symbolical ; it, therefore, could not prevent the release of the 1.nd from acquisition under section 48 (1) of tll'e Act. ·\n\nIt is not nec(:ssary to refer to the further correspondence which H ensued. It may, however, be stated that because of the stay order and the dispute raised in respect of the land comprised in Survey No. 30/2 in the award prepared by the Collector on 30-1-1960 compensation for the said la.nd was not dctermfoed.\n\nAnd eventually in the vcar 1968 an area of 12 acres 23 gunthas was sought to be released from accuisition.\n\nThe question for consideration is-was the release valid and proper?\n\nIn order to appreciate what is meant by taking possession of the land under section 16 or 1 7 ( 1) of the Act and what is the mode of taking such possession in regard to the waste or arable land with which we are concerned in this case, it is necessary to refer to certain provisions of the Code of Civil Procedure-hereinafter c, a.]led the Code, and some decisions thereon. Order 21, Rules 35, 36, 95 and 96 of the Code prescribe two modes of delivery of possession based upon the nature of the property concerned. The Code does not prescribe that inrespect ol a particular property there can be two mo<.'es of giving possession either to a decree-holder or to an auction-purchaser one\n\n\"ymbolical\" l\\Ild the other \"actual\".\n\nThese Rules prescribe that if the property is in the occupation of the judgmentdebtor or some-one on his behalf the possession shall be given if necessarY by removing the judgment-debtor and placing the -decree-holder or the auctionpurchascr in occupation of the same. On the other hand if the property is of such a nature that the judgment-debtor q1, nnot be in actual occupation of it, as for instance, property in the possession of a tenant, the only mode of giving possession is by proclaiming on the spot that the possession has been given to the decree-holder or the auction-purchaser. In some decisions the former mode of possession has been called \"actual\" and the latter \"symbolical\". Really speaking even the delivery of so-qi)led \"symbolical\" possession is delivery of \"actual\" possession of the right.title and interest of the judgment-debtor.\n\nIt completely dispossesses him. It does not affect the physical occupation of the property by a person who is not bound by the decree or whose interest is not affected by sale of the judgment-debtor's interest in execution of a decree.\n\nIf the property is land over which does not stand any building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land, or in case of resistance. by removing the person resisting unauthorisedly. A different mode of delivery is prescribed in the Code in the rules aforesaid in regard to a building, with which we are not concerned in this case. Sometimes the expression symbolical or formal delivery of possession i\\as been used in decisions to connote the actual delivery of possession effective against the fodgment-debtor leading to his dispossession in tbe eye of law. even though the duration of the dispossession may be momentary or temporary.\n\nJn Juggobundhu Mukherjee and others v. Ram Chander Bvsack(') Garth, C. J. delivering the judgment of the Full Bench consisting of five Judges pointed out at page 588 :\n\n\"Iri. the one case, the delivery of the land is to be madt by placing the plaintiff in direct possession. In the other the i!elivery is effected by the. officer of . the Court by going through a certain process prescribed by s. 224, and proclaiming to the. occupants of the property that the plaintiff has rec?vered 1t from the defendant.\n\nThis is the only way in\n\nwhch. the decree_ .of the Court, awarding possession to ihe __ plamt1ff, an be enforced ; and as, in contemplation of Jaw,\n\n( 1) I.LR. s Calcutte 584.\n\n-~-~\n\nboth parties must be considered as being present at the time when the delivery is made, we consider that, as against defendant, the delivery thus given must be deemed equivalent to actua, l posse5.sion.\"\n\n\"As against third parties, of course, this symbolical possession (as it is called) would be of no avail; because they are no parties to the proceeding. But if the defendant should, after this, again dispossess the plaintiff by receiving the rents\n\nand profits, we think that the plaintiff would have twelve years from such dispossession to bring another suit.\"\n\nAnother Full Bench consisting again of five learned Judges of the C Calcutta High Court presided over by Petheram, C.J ., in the case of Joggobnudhu Mitter v. Purna1111nd Gossami and another (') reaffirmed teh view taken in luggobundhu Mukherjee's case (l.L.R. 5, Calsutta, 5 84) in the following words :\n\n\"The Full Bench held that symbolica) possession obtained by the plaintiff's vendor was effective as against the judgmentdebtor, defendant, and that the suit brought against him within 12 years of that event was not barred by limitation.\"\n\nThe facts of the case of Sri Radha Krishna Chanderji v. Ram Bahadur and others('), are these : The dispute related to 150 bighas of land.\n\nThe plaintiffs had filed a suit to recover possession of the said E land. The principal defendant _who was the appelfant before the Privy Council was ap idol by shebiats who was in actual possession of the land by their tenants.\n\nThe predecessors of the defendants in the suit were parties to an earlier mortgage action.\n\nIn due course a decree was obtained. The property which, according to the finding, included the disputed land was sold.\n\nThe mortgagee decree-holders F were the purchasers of the property. \"The l;\\Ild being in occupation by cultivating tena!J.ts under an apparently bona fide title they received formal possession as usual after due proclamation by beat of drum in 1898.\"-(vide page 200 column 2).\n\nLord Sumner delivering the judgment of the Board said , a, t the same page \"This interruption, if such it was, of the defendants' actnar J)ossess!on was not of long duration. Hence the necessity for the present suit. Hence also the defence G of adverse possession for more than twelve years before suit began.\"\n\nIt would thus be seen that formal possession of the land in actual occupation of the tenant•, which in a sense was symbolical, was characterised as interruption of _defendant's actual possession. And finallv the t11tio of the decision of the Full Bench of the Calcutta High Court in lu11gobundhu Mukherjee's case (I.L.R. 5, Calcutta, 584) was approved thusat page 201, column 1 :\n\n\"In the Hi!(h Court and before their Lordships it was further argued thal symbolical possession would not avail against the defendants, but thatonly actual disoossession wouM interrupt their adverse possession. The High Court\n\n(') I.LR. 16 Cakntta 530. (') A.LR. 1917 Privy Council 197 (2).\n\nfollowing a decision of the Full Bench in J uggobundhu A Mukherjee v. Ram Chandra Bysack-(1880) 5 Calcutta, 584=5 C.L.R. 548 (F.B.) held that symbolical possession availed to disposess the defendants sufficiently, because they were parties to the proceedings in which it was ordered and given.\n\nThis decision is one of long standing, and has been followed for many years.\n\nTheir Lordships see no reason B to question it or to hold that this rule of procedure should now be altered.\"\n\nJn the case of joint possession the decision of the Privy Council in Sri Radha Krishna Chanderji's case [A.LR. 1917 Privy Council, 197(2)] has been referred with approval by this Court in the case of M. V. S. c Manikayala Rao v. M. Narasimhaswami and others(') in paragraph 7 at page 474 in the judgment of Sarkar, J, as he then was, as a, lso in paragraph 20 at page 4 78 is that of Ramaswami, J. I may just quote a, sentence from paragraph 7 which says :\n\n\"By the delivery of symbolical possession under the D order of November 6, 1939, the adverse possession of the defendants was interrupted.\"\n\nMohammad Noor, J. in the case of Ram Prasad Ojha and others v.\n\nBakshi Bindeshwari Prasad and others( 2 ) .has considered the point in his separate but .concurring judgment with reference to the relevant provisions of the Code at page 14 7.\n\nIn that case the question of E defendants' adverse possession arose with reference to a property which was not in occupation of any tenant. The suit for possession after the mortgage sale and delivery was being resisted Qy a µ<:rson who was in. no better position than the mortgagor judgment-debtor.\n\nThe learned Judge pointed out at pages 14 7 and 148 :\n\n\"When it is said that symbolical possession is not bindiag upon a third party but actual possession is, it is only meant that when a decree-holder or an auction-purchaser has been put in actual occupation of the property every body else has been ousted. from it, and consequently dispossessed. This is an obvious fact and not a question of law.· On the other ha, nd ff the Court simply proclaims that the decree-holder or auction-purchaser has been given possession bnt on account of the nature of the property tbey have not been placed in physical occupation of_ the property itself, such a delivery of pbssession can be binding only upon those who are parties to th'?se proceedings or on those who claim through them. The difference, as I !mve sa, id, is due to the riature of the property and not on account of the difference in the nature of possession. The question will always be not what was the mode of delivery of possession but who has in fact been ousted by it.\"\n\n(1) A.T.R. 1966 S.C. 470. (') A.I.R. 1932 Patna 145.\n\nA The same learned Judge had the occasion to consider the question again in the case oI Mahabir Singh and others v. Emperor('). And that too with reference to a property which was not in possession of any tenant but of the judgment-debtor.\n\nThe question arose in a criminal case and the confusion arising out of the use of the expressions-\"the actual\" and \"symbolical\" possession was again discussed B at page 568. The writ of delivery was issued in the previous litigation under Order 21, Rule 95 of the Code and in that connection the different modes of delivery of possession over a piece of land were discussed. The - momentary possession given to the purchaser was chara, cterised as delivery of symbolical possession by the Additional Sessions Judge and not actual possession. The learned Judge pointed out C at page 569, column 1 :\n\n\"It issued its writ under Rule 95, and the peon formally put the auction-purchaser in possession of the property.\n\nIt is wrong to think that there are two kinds of delivery of possession ; one actual a, nd the other symbolical independent of the nature of possession of the judgmentdebtor. Even if the delivery of possession was symbolical, its effect against the judgment-debtor was the same.\"\n\nThe so-called paper possession or possession on paper is no delivery of possession, actual, formal or symbolical.\n\nA Bench of the Madr; i, s High Court consisting of Rajamannar, C.J. and Rajagopala Aiyangar, J. has stated at page 762 in the case of Pathaperumal Amba/am v. Chidambaram Chettiar( 2 ) :\n\n\"The next question is whether it makes any difference in legal effect if possession is taken through court. The Code contemplates no notice to the juagment-debtor at that stage or any objection being raised by him to the delivery of possession under Rule 95, or Rule 96, and as the full title to the property has passed from the judgment-d.,; btor to the auction purchaser, he has no interest in the property to protect.\"\n\nIt has further been pointed out :\n\n\"The characterisation of possession taken under Order 21 Rule 96, as \"paper possession\" is hardly justified and runs counter to the principle on which the provision is based.\n\nSymbolical possession obtained under Order 21, Rule 96 is quite a different thing from paper possession, which might correctly describe only the possession obtained by a party who being entitled to actual possession, . the judgment-debtor himself being in possession, obtains delivery of possession on paper without actual possession ; or those cases where without complying with the requisites of the statute a fahe return is made as if they were complied with.\"\n\n(') A.l.R. 1934 Patna 565. (') A.!.R. 1954 Madras 760,\n\n;·. B, N. Bl:IAGD!l y, ~. D, l!W.<iWAT (Untwlllia, J,) 2§3\n\nIt would thus be seen .that a symbolical or formaLdehvery of A possession: as understood 'in law has the effect of dispossessing the judgment-debtor lrom hiS right title. or -interest in the property, -'\"It does Mt di.Spossess the person in actual possession in hiS own right not liable to be evicted under the decree or in pursuance of the auction sale.\n\nA symbolical or forrtial delivery of possession'against the judgment-debtor is giving of actual possession of the property\n\n'B in the .. eye of law and has the effect Df dispossessing him although as a matter of fact he may have succeeded in resuming back possession as before shortly after diSpossession; · ..\n\nIn a proceeding under the Act for acquisition of land all interests are wiped oqt. Actual possession of the _ land becomes necessary for its use for the public purpose for which it has been acquired. C Therefore, the taking of possession under the Act cannot be ''sym~ bolical\" in the sense as generally understood in Civil' Law, Surely it cannot be a possession merely on paper. What is required under the Act is the taki.ng of , a, ctual possession on the spot. In the eye. of law the taking of possessiori will _have the effect of transferring possession from the owner or the occupant of the land to th\\I Govem- 'D ment.\n\nSection 9 (1) of the Act reads as follows :\n\n\"The Collector shall then cause public notice to given at convenient places or near the land to be taken, stating that the Government intends to take possession of 'E the land, and that claims to compensation for all interests in such land may be made to him.\"\n\n. When a public notice is published at: a conve11ient _place or .neat the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there would be no question of resisting or impeding the taking of possession. Deli- F very or giving of possession by the owner or the occupant of the\n\nland .is not required.\n\nThe Collector can enforce the surrender of the land to himself under section 4 7 of the Act if impeded jn taking possession.\n\nOn publication of the notice under section (1) / claims to compensation for all interests in the land has to be made ; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under G section 16 or 17 (1) it vests absolutely in the Government free from all incumbrances.\n\nIt iS, therefore, clear that taking of possession within the meaning of section 16 or 17 ( 1) means taking of possession on the spot. It is neither a possession on paper nor a \"symbolical\" possession as generally understood in Civil Law.\n\nBut the question is what is the mode of taking possession ? The Act is silent on the point.\n\nUnless possession iS taken by the written agreement of the H party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. [t may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority\n\n10 SC 15-18\n\nA has taken pos_session of the land.\n\nThe , presence of the own~ or the occupant of the land to effectuate the taking of possession not\n\nnecessary~ No further notice beyond that under sec1ion 9 ( 1) .. of the act is required.\n\nWhen possession has been ta, ken, the owner or the occupant of the land is dispossessed.\n\nOnce possession has been taken the land vests in the Government.\n\nB In the instant case in agreement with the findings of the High Court, I hold that in the eye of law actual possession of the Jarid in question was taken by the Tehsilda.r on the spot and the possession was handed over to the Principal of the Agricultural College.\n\nIt appears that the appellant on his part thought that he never gave up possession and claimed to continue in actUill possession of the C disputed land, because of the stay order passed by the Government on or about the 16th April, 1959. It is in the background of the law discussed above that the statement _that \"the possession (physical) of the entire field S. No. 30/2 of Umari is still retained by the lessee pf th~ field and the land was not actually taken possession of by the Principal Agricultural College, Akola\", occurring in the letter D dated the 13th December, 1961 written by the Special Land Acquisition Officer, Akola to the Commissioner, Nagpur has got to be appreciated and so also the stand .of the Government in its counter as to what was meant by ta, king of symbolical possession.\n\nViewed in the light of the discussion of law I have made above, it would be noticed that possession of the land, in any event, was taken on E the spot and it vested in the Government.\n\nThe appellnt's resuming possession of the land .!\\fter once it was validly taken by the Government had not the effect of undoing the fact of tbe vesting of the land in the Government. The Government or tbe Commissioner was not at liberty to withdraw from the acqnisition of any portion of the land of which possesion had been taken, under section 48 ( 1) of the Act.\n\nF In the result the appeals fail and are dismissed with c-0sts.\n\nOne set of hea, ring fee.\n\nV.P.S.\n\nAppeals dismissed.", "total_entities": 61, "entities": [{"text": "BALWANT NARAYAN BHAGDE", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "BALWANT NARAYAN BHAGDE", "offset_not_found": false}}, {"text": "M. D. BHAGWAT & ORS", "label": "RESPONDENT", "start_char": 24, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "M. D. BHAGWAT & ORS", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 63, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "A. C. 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{"document_id": "1975_1_265_269_EN", "year": 1975, "text": "'J ~65\n\nMARTAND DAIRY & FARM\n\nTHE UNION OF INDIA & ORS .\n\nApril 23, 1975\n\n[V, .R. KRISHNA IYER, R. S. SARKARIA AND A. C. GUPTA, JJ.J.\n\nCeniral Sales Tax Act 1956-\"Sealed Container\"-Meaning of.\n\nA notification i\"'ued under the Central Sales Tax Act, 1956 allowed ex emption to, among others, cream but excluding \"products sold in sealod OOBtainers\". The appellant sends cream to Calcutta in sealed containers. The \"Sales tax authorities held that the sales were of cream, that they \"Were inter~ C .state Sales but that the exemption extended by the notification could not be .enjoyed by the Msessee since he fell within the area of exclusion contained in , the exemption notification.\n\n. . The High Court rejected the writ petition of the appellant On . appeal\n\nto this Court it was contended that the containers were used for bulk tranomission, that sealing was for 'preventing abuse on the way or to avoid pilferas; e D , and that the emphasis should be on the \"cream\" andthe container bad no\n\nrelevance in the context.\n\nDismissing the appeal,\n\nHEID : It is not for the Court to launch on ob6cure fiscal astroloa but merely to conStrue what has been expressed in plain words. _ \"Sealed container\" merely means a container which is \"so closed that access to the :cootents is impossible without breaking the fastening.\n\nThe eXJ>reo- . , E sion seal in this context does not involve affixture of the seal of -the ooller such as impressing a signet in wax etc., as evidence or guarantee of authenticity.\n\nAn article may be regarded as put in sealed conta'iners if it is Closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be obtained to what i• packed in.side. This is the popular, perhaps the lit.eral, meaning of the expretlllliom: 1l8ed in the notification.\n\nMaybe the State though\\ . that .sealed containen would be used only by big manufacturers who were able to bear the burden . - F -Of tax ; maybe administrative conveniellce in assessing quantities sold in- <luced this step. [269BDJ ·\n\nCon1inissioner qf Sales Tax, U.P., v. G. G. Industries; 21 S.T.C. 63 follow- .ed. .\n\nGovindram Ramprasad v. Assessing Auhority (Sales Tax) 8 S.T.C. 407, theld inapplicable.\n\nClvIL APPELLATE JurusosCTION : Civil Appeals Nos .. 1623 and 1624 of 1971.\n\nFrom the Judgment aitrl Order dated the 13th bctober, 1970 of the Allahabad High Court in O.M. Writ Petition No. 55 and 56 of 1970.\n\n. S. T. Desai, Naunit Lal and Miss Lalita Kohli for the appellant. ' . . G. L. Sanghi, .Girish Chandra and E. N. Sachthey for respondoot ~1. . .\n\nS. C. Manchanda and 0. P. Rana for Respondents Nos. 2-4.:\n\nr-- .,\n\n_,._ ~;\n\n[1975] SUPP $.C.R. rl~~)f SUPll.EME COURT REPORTS\n\nThe Judgment of the Court was delivered by : ..\n\n')'I''\n\nKRISHNA IYER, J.-Mr. s. T. Desai, counsel for the appellants . ....,~ in both the appeals, correctly assured us that the facts are not in\n\ndispute, although the legal inference bearing on taxability is very much in controversy.\n\nThe appellant, who has atTived in this Court by certificate under Art. 133(1) (a) of the Constitution, urges before us that he is not liable to sales tax under the Central Sales Tax Act, 1956 (LXX!V of 1956) {for short, the Act) sought to be levied from him. Admittedly the appellant is a leading dairy of Benaras anid has been sending cream to Calcutta for being converted into butter or ghee.\n\nC The long journey involved and the considerable quantities despatched\n\nnecessarily called for protective receptacles during transport. So the cream used to be carefully sent in canisters whose lids were sealed . by the seller. The Calcutta buyers received the cream and paid for it on the basis of the ghee/butter recovered from the cream supplied.\n\nAlthough there was some controversy even on the facts, counsel on D both sides proceeded on the factual findings recorded by the Judge (Revisions) who held that the sales were of cream, that they were inter-State sales and that the exemption extended by Government notification under the Act for cream could not he enjoyed by the assessee as he fell with.in the area of exclusion contained in the exemption notification. It is appropriate at th.is stage to reproduce the E notification, dated May 10, 1956, under which the exemption is claimed. It reads :\n\n\"No. ST-3506/X\n\nD/10-5-56\n\nExemption has been allowed to :\n\nMilk and Milk products such as Chhena, Dahl, kha, Butter and Cream but excluding (i) products sold in sealed containers (ii) sweet-meats and (iii) ghee.\"\n\nTh.is in general tenns cream is exempted from payment of Central Sales Tax by virtue of this notification but it carves out an exception to the exemption. If the cream were 'sold in sealed containers' the seller could not come within Jhe exemption notification. We need G not go into the technique of sealing adopted in this case since it is common ground now that the cream is put in containers whose lids are properly soldered. The short question is whether cream sold in soldered containers in. the circumstances set out above can be described appropriately as 'products sold in sealed containers'.\n\nFascinated we were by the imaginative and realistic pictnrisation H of the expression 'products sold in sealed containers' projected by\n\nShri S. T. Desai, counsel for the assessee-appellant but, on further reflection, we veered round to the view presented by Sri Sanghi, for tle State, that after all law is not always logic and taxation considera-. tions may stem from administrative experience and other factors of life and not artistic 1isualisation or neat logic and so the literal, though pedestrian, interpretation must prevail.\n\n. 41\n\n. . . :MARTANI) PAIRY ANI) :FARM v •. UNJON (l(rishna Iyer, J.) 267\n\n}1)e High Co11rt has negatived 'the plea of the assessee anQ since -\"'. wf ai:e jnclined U1 agtee with its reasoning, we express out grounds\n\no; nly priefly, althQugh we may, . in passing, make reference to two decisions cjted, before us, viz., Govindram l?.amprasad v. Assessing\n\nAuthority (Sales Tax)(') and Commissioner of Sales T!JX, U.P. v, G. t;. Industries('). Govindram(l ).:_a decision of the Madhya Pradesl\\' }ligh Court-'-is not germane to the qljestion \\ve are dealing with B and therefore we need not discuss it. The latter-The Commissioner of Sales Tax, U.P. ( 2)-we shall discuss as it in some measure, governs thC issue before us.\n\nThe assessce's main contention is that cream solt! in sealed containhs must bear a 'markel' meaning, if we may say' so, and not be taken literally. What Shri Desai urges is that there are many articles which th.c consumers buy on the strength of the image projected before them in their packed st.ate. For instance, a well-secured box of chocolates, carton of dried fruits or a tin of coffee put out with well-known mar'kings, a sealed bottle of whisky sold in such manner that its quality, quantity and genuineness are easily acceptable-these, going by the consumers' habit of looking for articles properly packed or tinned an.d acquiripg a special value as a unit of consumer commodity, may legitimately be described as items 'sold in sealed , containe~'. If we consult our housewives or our village vendor$, there' is no doubt that there.\n\nill11strations may be blJme out as apt and may even be supplemented hy .other like instances. A thing is bought loose for a price by, a buyer on certai11 assumptions. But a securely packed or properly sealed commodity sold by a well-known manufacturer is ptlrchased by the consumer based on a sort of flavoured considerations. The assessee's case is that here no cream in sealed containers as a unit with an individuality is sold. On the other hand cream qua cream is bargained for and despatched. The canister is used because, ex necessilae large quantities of cream cannot be transported over distances without being put in some container and its leakage and spoilage can be prevented only by soldering or sealing. Hems sold in containers are usually .so sold for two reasons : (i) for easy consumption by the retail consumer who, by mere sight, is able to distinguish the particular patented brand, and picks it off the counter ; (ii) to prevent adulteration or mixing wit.h spurious stuff. In the instant case the containers used are for bulk transmission--like tea chests-and sealing is fgr preventing abuse on the way or pilferage. And soldering is a sure mctho4. of sealing. Further, if the item were not a liquid like cream, but a solid, it could be transported even in gunny bags-merely stitched and without any seal. If this view be sound, certainly the Benaras cream dealer is out of the liability zone. We do not examine the impact <?11. taxability had the receptacles. been returned by the buyer since it\n\n1 oes not arise on the evidence. .\n\nShri Desai further drew our attention to the fact that the containers had no particular design nor did theybear any special marks. or ba_ve\n\na uniforin size.: Tbus:.the sealed container had np connection with\n\n(' J; & l).T.C. 407 •.\n\n(') 21 S.T.C .. 63.\n\n268 liliPREMli COURT i!.BPOllTS\n\n[1975] SUPP· $.C.R.\n\nAthe bargain or the stuff sold. The emphasis was on the cream and the container had no pertinence in the context. In this connection, he also referred to s. 8 of the Act which refers to containers and packing material. There is force in the argument, certainly. But, as earlier indicated, judicial adventure in interpretation-particularly ill taX matters,-is sever!y circumscribed, Mr. De.sai posed the question whe- B ther sale in loose quantities and unsealed containers (in this very case, cream also been sold in milk cans which were not sealed and had been granted tax exemption) made any difference from similar salu in old kerosene tins, the soldering being no sin which attached taX guilt. Not that we are oblivious to the force of this argument, but we are influenced by the words whose normal meaning should ordinarily C guide interpretation. All that the notification states is that products sold in sealed containers must sail out of the harbour of exemption.\n\nThe simple question is this : Was the sale, of cream? Yes. Was it, when sold, packaged in containers which were sealed? Yes. On these two affirmative answers the exclusion from the exemption operates.\n\nSuch is the contention put forward on bcljalf of the taxing authority by Shri Satighi, learned counsel.\n\nD l n this connection, he drew our attention to Commissioner of Sales Tax, U.P. (supra). Sikri, J. (as he then was), speaking for the Court, considered a somewhat similar question of exemption where sales-tax dealers in cooked food 'other than cooked food sold in sealed containers' were conferred exemption, on certain conditions.\n\nE The commodity trere was confectionery sold in sealed containers and the High Court upheld the assessee's case with these words :\n\n\"In commercial world in such trades, particularly where food materials are concerned, it would be seen that the name and reputation of the manufacturer by itself is a sufficient evidence or guarantee of the quality of the contents. The most usual form or method for furnishing such evidence or guarantee of the quality and quantity of the contents is by way of putting its seal by the manufacturer in order to secure the. goods in the container in such manner that to have access to the contents of the container the seal so put has to be destroyed or broken. For if it were not so done neither the retailer nor the purchaser would be sure whether the goods inside the container as to their quality and quantity are the same as represented and have not been otherwise adulterated . or mixed up by extraneous elements is hardly necessary to mention that a dealer carrying on the business of selling sweetmeats and coufectionery on a comparatively smaller scale would find it uneconomical commercially to put the stuff sold or to be sold in sealed containers; it is only a large scale manufacturer who manufactures and exports the confectionery, who would need selling the same in a container. In our opinion, therefore, it is only that class of dealers carrying on the business of sale of confectionery in sealed containers as explained above who were not intended to be exempted from the liability to pay sales tax on their turnover.\"\n\n> •\n\nMARTAND DAIRY AND FARM v. UNION (Krishna Iyer, J.) 269\n\nOn appeal, this Court, after noticing ihe plausibility of the opposite A point of view and guessing the possible administrative and other reasons for the exclusion from exemption, held :\n\n\"Be that as it may, in the context it is difficult to give to the expression 'sealed container' a meaning different from the ordinary dictionary meaning.~ B\n\n\"Sealed container\" merely means a container which is \"so closed tliat access 'to the contents' is impossible without breaking the fastening\". The expression 'seal' in this context does. not involve an allixture of the seal of the seller such as impressing a signet in wax etc., as evidence or guarantee of authenticity. An article may be regarded as put in sealed containers if it is closed securely in any v<ssel or container by any kind of fastening or covering that must be broken before access can be obtained to what is packed inside. This is the popular, perhaps the literal, meaning of the expressions used in the notification.\n\nMaybe the State thought that sealed containers \\Vi)uld be used only by big manufacturers. who were able to bear .. the . burden of tax; maybe administrative convenience in assessing quanti~\n\nties sold induced this step. It is not for the Court to launch on obscure fiscal astrology but merely to construe what has been expressed in plain words. We should have been happier if the State had. furnished\n\nthe reasons prompting ihe exclusion from the exemption. An intelligent appreciation of the reason of the rule is an aid to judicial construction but the State has not been as alert on this score as we might have wished. Why should a sale, if generally exempt from tax, being a milk product, forfeit it merely because the wholesome step of sealing the container and insulating the food article from contamination, is taken <luring transit ? But counsel for the State has expressed his inability to throw light on this aspect or on the reasons for the policy. Had ; he State's counter-affidavit been more illuminating on these questions, it would have performed a service to this Court and to the public and rendered the task of judicial construction simpler.\n\n',\\'itli these observations, we dismiss the appeals but there will be no order as to costs in this Court.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 11, "entities": [{"text": "65\n\nMARTAND DAIRY & FARM", "label": "PETITIONER", "start_char": 4, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "MARTAND DAIRY & FARM", "offset_not_found": false}}, {"text": "THE UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 30, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "THE UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "R. KRISHNA IYER", "label": "JUDGE", "start_char": 79, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 96, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ", "label": "JUDGE", "start_char": 115, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Ceniral Sales Tax Act 1956", "label": "STATUTE", "start_char": 135, "end_char": 161, "source": "regex", "metadata": {}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 226, "end_char": 253, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 3067, "end_char": 3078, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 3165, "end_char": 3192, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "State sales and that the exemption extended by Government notification under the Act", "label": "STATUTE", "start_char": 3955, "end_char": 4039, "source": "regex", "metadata": {}}, {"text": "s. 8", "label": "PROVISION", "start_char": 9243, "end_char": 9247, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_1_270_280_EN", "year": 1975, "text": "270 ,. - '\n\n. RAMESH HIMMATLAL SHAH\n\nHARSUKH.JADHAVJI JOSHI\n\nApril 25, 1975.\n\n[A. ALAGIRISWAMI, P. N. B!IAGWATI AND P. K. GOSWAMI, JJ.]\n\nMaharashtra Co-operative Societies Act1 1960 Sections 29,31,47 and i46(a), 1961, Rule 24 and Bye-Laws 9 and 71-D right of a judgn1e11J-dcbtor to occupy a fiat owned by a housir..g society, if fiablc to attac/unent and su!e ill execution of a decree against hin1.\n\nCode of Ciril Procedure, Section 60-Riglit to occupy a fiat owr, ed /Jy a ca-operari11e housing society, 1.'f a species of property.\n\nThe appellant is the decree-holder. He obtained a money decree agains1 the respondent judgment-debtor and took a warrant of attachment of fiat No. 9 of Paresh Cooperative Housing Society Limited at Santacruz, Bombay. This flat was attached on August 8, 1970 and a warrant of attachment was served on -the judgment-debtor wh.ile be was in jail in Rajkot.\n\nIn due Cot,_rse -a sale proclamation was also issued in respect of the flat while the judgment-debtor was yet in jail. At this stage of the proceedings, the judgmentdebtor's brother, Hasmukh J. Joshi took out a chamber summons challenging the execution on the ground that the fiat did not belong to the judgment-debtor but belonged to him and to the judgment-debtor's wife and that the attachment should be raised.\n\nHis chamber surnmons was made absolute but in appeal the order was set aside and the matter was remanded. The afore!faid chamber sumn1ons was, however, finally dismissed on _September 30, 1971.\n\nHasmukh did not take any further action against the rejection of his claim to the property. After coming out of the jail, the: judgment-debtor filed a suit some time in 1972 to set aside the decree.\n\nHe, however, could not se\\; ure an order for injunction to prevent the eXecutic, n of the decree and the suit __ is pending.\n\nThe flut was offered for sale and was purchased i, n auction hy One Bhupendra N. Shah for a sum of Rs. 34,000 / ··.\n\nThe sale, however, is not yet confirmd. Subsequently a new plea was taken by the judgment--debtoc. This time he filed a chamber summons on March 28, 1972, praying for the dismissal of the execution petition filed by the decree-holder 3Dd for setting aside the w41-rint of attachment and proclamation of sale on the ground that the flat being a fiat in a cooperative housing society was not liable to attachment and sale.\n\nIt was also stated that he had not saleable interest in the said property under section 60, Civil Procedure Code, and therefore, it was not liable to attachment.\n\nThe Judge, City Civil Court, Bombay, dismissed the chamber summons. The learned single Judge, Bo1nbay High Court, however, in appeal allowed the claim and made the summons absolute by directing that the attachment and sale of the flat being Hlegal be set aside.\n\nThe appellant preferred a Letters Patent Appeal before the Bombay High Court without success and the decision cif the learned single Judge was affirn1ed.\n\nHence this appeal by special leave.\n\nIt was contended for the appellant that the right of the judgment-debtor, who claims the right to occupation of flat No. 9, is liable to atta.chn1ent and sale in execution of a decree.\n\nThe respondent contended that section 31 of the ~Iaharashtra Co-operative Societies Act, 1960, completely bars attachment and saJe of the flat in question in execution of thl! decree. lt \\Vas also contended for the respondent that section 60, Civil Procedure Code does not specify that this species of property is liable to attachment. '\n\nA11owing the appeal, HEW : (i) While section 29(2) refers to transfer of a member's share or his interest in the capital or property of any society, section 31 in contrast speaks of \"the share or interest of a men1ber in the capital of a society\". The Act, therefore, makes a clear distinction between the share or interest in the capital and share or interest in property of the society,\n\n[2780-E]\n\n(ii) The right or interest to occupy is a species of property.\n\nThere is\n\nR. H. SHAH \"· H. J, JOSHI (Goswumi, J.) 271:'\n\nnothing in the language of section 31 lo indie<1te that the right to ocoupation\n\nJ.. wbich is the right to be sold in auction is not attachable in executio11 of the decree, There is nothing in section 31 to even l'emotely inclQde a prohibition against attachment or. sale of the aforesaid right to occupation 'of the fiats.\n\nThe o, i; tly restrictions under section 29(2) are that the memr may.not tranlllftr\n\nhis interest in the property prior to one year nd the transfer is made to. an ex.i!ting member of the society or to a person whose application for membership been accepted by the Society, It is !rue that bye-Jaw 71D .ays tlmt\n\na meinber to whoma tenement is allowed, shall not assign or underlet, vacate B or. part with the possession of the tenement or any part thereof without the prev'ious con.sent in writing of the Managing Committee, but there is nothing to show that contravention of this bye-law ma!t.:_es the assignment vqid under the. Act ~1nlik.e in the case of a transfer being void under section 47(3).\n\nSection 29 read with rule 24 shows that there is no prohibition as ::; uch against transfer of a share to a member or even lo a non-member if he consenL 1'0 be :i mcrri.ber and makes an application for membership by purchasing five shares as Provided under bye-law 9. There is no reason to think that there is C any question of refusal of membership of the Society to a non-membe-r if he' is qualified otherwise and makes an appropriate application in which case\n\nthf'. transfer of shares will be operative and tJ:ius the assignment of the right to occupation will hold good. [278F-H, 279-B]\n\n(iii) Section 60 of the Civil Procedure Code is not exhaustive ns such.\n\nIt also refers to any other saleable property, movable or immovable, whether the san1e be held in the name of the judgment-debtor or by another person on D his behalf. The right to occupation of a fiat is property both -attachable and Sfl1eable.\n\nSpecific non-inclusion of a particular species of prbperty under section 60, is therefore, not of any consequence if it is saleable otherwise.\n\n(280-F-GJ\n\nCIVL APPELLATE JURISDICTION ; Civil Appeal No. - 1539 of 1974. .\n\nA!>peal by special leave from the Judgment and Order of the High , Court of Bombay in LPA No. 80 of 1972. .\n\nB. R. Zaiwala, D. R. Zaiwala, K J. John and J. B. Dadachanji, for the Appellant. . . .\n\nP. K. Chatterjee and D. P. Mukherjee, for the Respondent.\n\nO. L. Sangh; and H. K. Puri, for Shri Suryakant N.\n\nGangani (Purchaser)\n\n.The Judgment of the Court was. delivered by\n\nGOSWAMI, J.-This appeal in. forma pauperis rainses an impor-. G\n\ntau~ question of Jaw : Is a flat m a te, nant co-partnership housing\n\nsociety under the Maha; ashtra Cooperative Societies Act, 1960 liable to .attachment and sale m execution of a decree against a member in ll'hooe favour or for whose benefit the same has been allotted by the society ? ·\n\n. We may briefly note the tacts. : H\n\n.. The appellant is the . decree-holder. He obtained a money decree. against the respondent judgment-debtor and took a warrant of attachment of ffat No. 9 of Pareh Cooperativ~ Housing Society Limited at .Santacruz, Bombay. Tius flat (descnbed as ownership. flat in common parlance) was attached on August 8, 1970 and. a warrant\n\n~:-<\n\nof attachment was served on the judgment-debtor while be was m jail in Rajkot.\n\nIn due course a sale proclamation was also issued in respect of the flat while the judgment-debtor was yet in jail.\n\nAt this stage of the proceedings, the judgment-debtor's brother, Hasmukh J.; Joshi (for brevity Hasmukh) took out a chamber summons challenge ing the execution on the ground that the flat did not belong to the judgment-debtor but belonged to him and to the judgment-debtor's wife and that the attachment should be raised. His chamber summons was made absolute but in appeal the order was set aside and the matter was remanded.\n\nThe aforesaid chamber summons was, however, finally dismissed on September 30, 1971.\n\nHasmukii did not take any further action against the rejection of his claim to the property.\n\nAfter coming out of the jail, the judgment-debtor filed a suit some time in 1972 to set aside the decree.\n\nHe, however, could not secure an order for injunction to prevent the execution of the decree and the suit is pending.\n\nThe fiat was offered for sale and was purchased in auction by one Bhupendra N. Shah for a sum of Rs. 24,000. The sale, however, is not yet confirmed. Subsequently a new plea was taken by the judgment-debtor.\n\nThis time he filed D a chamber summons on March 28, 1972, praying for the dismissal of the execution petition filed by the decree-holder and for setting aside the warrant of attachment and proclamation of sale on the ground that the flat being a flat in a cooperative housing society was not liable to attachment and sale. It was also stated that he had no saleable intere•st in the said property under section 60, Civil Procedure Code, and therefore, it was not liable to attachment.\n\nThe E Judge, City Civil Court, Bombay, dismissed the chamber summons.\n\nThe learned single Judge, Bombay High Court, however, in appeal allowed the claim and made the summons absolute by directing that the attachment and sale of the flat being illegal be set aside.\n\nThe appellant preferred a Letters Patent Appeal before the Bombay High Court without success and the decision of the learned single Judge was affirmect.\n\nHence this appeal by special leave.\n\nThe flat in question is admittedly owned by the Paresh Co()J'el'ative Housing Society Limited (briefly the Society).\n\nOriginally this fiat stood in the name of one Ramesh Hariram Chande and his wife.\n\nIt is not disputed before us and it has been so held by the court in the claim case by the judgment-debtor's brother that the respondent G purchased the flat benami in the. name of his brother Hasmukh and his wife Shashikala.\n\nAlthough, therefore, the respondent is not a registered holder of the fiat, it is clear that the flat is held by :his brother and his wife on behalf of the respondent.\n\nThis is to be noted as section 60, Civil Procedure Code, reaches a benami holding ..\n\nIt may also be noted that the respondent is now fighting the case on the basis that the right to occupy the flat in question is his property ff which is not liable to attachment and sale. We should also note here that after the High Court invalidated the attachment and sale, the flat was purchased by one Suryakant N. Sangani (briefly Surya kant) having acquired the shares in the Society from Hasmnkh and' Shashikala. It is said that on the joint application of Shashikala .and Suryakant, the shares were transferred to the latter on or abour May 15, 1974. ·\n\nThe appeal came up for hearing earlier and when it was found that the respondent was not represented the court issued notice to the purchaser, Suryakant and also directed for appointment of an amicus\n\ncuriae. Mr. Chatterjee has now appeared before us as amicus cur~\n\nand the purchaser has also entered appearance through Mr. Sangh1.\n\nUltimately, however, we did not hear Mr. Sanghi, as we are concerned in this appeal only with the 'question of attachability and saleability which is a condition prior to the . purchase of the property by Bbupendra N. Shah. Mr. Sanghi,. therefor<:, had to retire from the appeal.\n\nThe point that arises for consideration m this appeal, as stated earlier, is whether the right of the judgment-debtor, who claims the right to occupation of fiat No. 9, is liable ttl attachment and sale in execution of a decree.\n\nBefore we proceed further it is necessary to go through the relevant provisions of the Maharashtra Cooperative Societies Act, 1960 (briefly the Act}. The Maharashtra Cooperative Societies Rules, 1961 (briefly descri0ed as the Rules} and the Byelaws of the Society.\n\nThe Act was passed in the year 1961 to consolidate and amend the law relating to cooperative societies in the state of :Maharashtra.\n\nSection 2 of the Act contains the definitions. By section 2(5} \" 'by-Jaws' means by-laws registered under this Act and for the time being in force, and includes registered amendments of such by-laws\".\n\nBy section 2 (11} \"dividend\" means the amount paid, out of the profits of a society, to a member in proportion to the shares held by him.\n\nBy section 2(16} '\"housing society' means a society the object of which is providing its members with dwelling houses\". By section 2(9} \"'member' means a person joining in an application for the registration of a cooperative society which is subsequently registered, or a person duly admitted to membership of a society after registration, and includes a nominal, associate or sympathiser member\".\n\nBy section 2(19} (b} \"'associate member' means a member who holds jointly a share of a society with others, but whose name does not stand first in the share certificate\".\n\nBy section 2(19} (c} \" 'nominal member' means a person admitted to membership as such after registration in accordance with the by-law''. By section 2(21} \" 'prescribed' means prescribed by rules\". By section 2(31} \"'working capital' means funds at the disposal of a society inclusive of paid up share capital, funds built out of profits, and money raised by borrowing and by other means.\"\n\n. By sectin \"a society, which has as its objects the promotion of the economic mterests or general welfare of its members or of the\n\nblic, i? accord8:flce with .c?Oerative principles, or a soiety estab- H hshed with the. ob1ect of fac1htatmg the operations of any snch society may be registered under this Act. '\n\nProided that, no society shall .be registered if if is likely to be econOtrucally unsound, or the registration of which may have an adverse effect on development of the cooperative movement\".\n\n··~·- .,\n\nChapter Ill of the Act deals with members and their rights and lia])ilities.\n\nSection 22 with which this chapter opens provides .how a person may become a member.\n\nFor example by section 22(1A) subject to the provisions of section 24, an individual competent to contract under .the Indian Contract Act may be admitted as a member.\n\nBy section 23 (l) 'No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefor under the provisions of this Act and its bye-Jaws\". By sub-section (2), \"Any\n\nperson aggrieved by the decision of a society, refusing him admission to its membership, may appeal to the Registrar\" and the decision of the Registrar under sub-section (3) shall be final.\n\nBy section 25 \"a person shall cease to be a member of a society on his resignation from the membership thereof being accepted, or on the transfer of the w):iole of his share or interest in the society to another member, or on his death, or removal or expulsion from the society\".\n\nBy section 26, \"no person shall exercise the right of a member of a society, until he has made such payment to the society in respect of: membership, or acquired such interest in the society, as may be prescribed by the rules, or the by-laws of such society\".\n\nSection 28 contains certain restrictions on holding shares.\n\nTwo of the material sub-sections of section 29 which are jmportant and with which we are concerned may be set out :\n\n29(1). \"Subject to the provisions of the last precedinl',\n\nsection as to the maximum holding of shares and to any rules made in this behalf, a transfer of, or charge on, the share or interest of a member in the share capital of a society shall be subject to such conditions as may be prescribed.\n\n( 2) A member shall not transfer any share held by him or his interest in the capital or property of any society, or any part thereof, unless :-\n\n(a) he has held such share or interest for not less than one year ;\n\n(b) the transfer is made, to a member. of the society or to a person whose application for membership has been accepted\".\n\nSection 31 may also be set out :-\n\n\"The share or interest of a member in the capital of a society, or in the Joan-stock issued by a housing society, or in the funds raised by a society from its members by way of savings deposit, shall not be liable to attachment or sale under any decree or order of a Court for or in respect of any debt or liability incurred by the member ; and accordingly, neither the Ofiicial Assignee under . the Presidency-towns Insolvency Act, 1909, nor a Receiver under the Provincial Insolvency Act, 1920, nor any such person , or authority under al)y corresponding lw for the time being in force, shall beentitled to, or have any claim. -OD, such share .or interests.\"\n\n''' R. H. sllAH ~- H.' J. JOSHI iGoswami, !.) i7_75\n\nSection 4 7 so far as material for our purpose may be quoted\n\n.·· A\n\n47(1). \"Notwithstanding .anything i, n any other law for the time being in force, brit subject to any prior claim of Government in respect of land revenue or any money recoverable as land revenue and to the provisions of section 60 and 61 of the Code of Civil\n\n .. B Procedure, 1908.\n\n(b) any oustanding demands or dues payable to a society by any member or past member or deceased member, in respect of rent, shares, loans or purchase money or any other rights or amou11ts c payable to such society, shall be a first charge upon his interest in the immovable property of the society\".\n\n(2) No property or interest in property, which is subject to a charge nuder the foregoing sub-section, shall be D transferred in any manner without the previous permission of the society; and such transfer shall be subject to such conditions, iLany, as the society may impose.\n\n(3) Any transfer made in contravention of sub-section\n\n(2) shall be void\".\n\nSection 165 contains the rule making powers.\n\nThe last section 167 provides that \"for the removal of doubt, it is hereby declared that the provisions of the Companies Act, 1956, shall not apply to societies registered or deemed to be registered, under this Act\".\n\nF We may now turn to the relevant Rules. By rule-9 \"wheu a society has been registered the by-laws of. the society as .approved and registered by the Registrar shall be the bye-laws of the society\".\n\nRule 10 contains classification and sub-classification of societies and we are concerned with the fifth class mentioned therein, namely, the 'Housing Society' which again is sub-divided into three categories and we are concerned in this appeal with the G second category, namely, 'Tenant Co-partnership Housing Society', which is described therein as an example of \"Housing Societies which hold both lands al)d buildings either on lease hold or free hold basis\n\nand allot them to their members\".\n\nChapter III of the Rules deals with members and their rights and liabilities.\n\nRule 19 contains conditions to be complied with for H admission for membership.\n\nRule 24 provides for the procedure for transfer of shares.\n\nRule 28 provides for expulsion of members and expulsion from membership may involve forfeiture of shares held by the member.\n\nWe may now notice some of the material Bye-laws of the Society.\n\nA Bye-Jaw 6. \"All persons permanently residing in Bombay city and suburban area and who have signed the application for registration, are original members. Other members Jll\\lY be admitted by the General .Bouy.\n\nEvery person on applying for membership shall d.cposit Re. 1 as entrance fee and. the value of at least five shares for which he shall receive a copy of the Bye-laws.\n\nIn case where an application is refused, the deposit shall ordinarily be returned\".\n\n 6(1). \"The General Body may admit any new members other than the promoters subject to the applicants satisfying the qualifications for membership as prescribed under the bye-laws\".\n\n(2) \"TI1e General Body shall not admit members exceeding the number of tenements or plots available for allotment\".\n\n(3) The General Body alone shall be comi; i:etent to allot tenements to the members on the basis of policy framed by it for such allotment\".\n\n7 (a). \"A person may be admitted as a nominal member on payment of Re. 1 only as entrance fee for the purposes of occupying a shop/ godown/ garage m the society.\n\nA nominal member shall not exercise any right of membership or receive any advantage, or benefit or dividend, etc.\"\n\n7(b). \"A subletec, a licencee or a caretaker may also be admitted as a nominal member of the Society on payment of Re. 1 as entrance fee. Such member shall not exercise any right of membership or receive any advantage or benefit or dividend, etc.\".\n\n8 (a) . \"Ko person shall be admitted as a member of the Society who already owns a house, a plot or a ilat in Bombay city and suburban area, in his own name or in the name of any of his dependents or of his family members, such as wife/husband, children, etc. and whose need of a house, a plot or a fiat in the' opinion of the General Body are not considered pressing or deserving ...... \"\n\n10. \"No person shall exercise the rights of a member of\n\nthe Society until he is admitted as such as laid down in Bye-law No. 6 and holds not less than five fully paid shares in the Society and his name has been entered in the Register of Members\". ·\n\nChapter Vil of the Bye-laws provides for transmission of interests.\n\nBye-law 14 01>11tains how a nomination has to be made, how a member may nominate a person to whom his share or intcrcst in the society or so much thereof as is specified in such nomination\n\nshall be transferrcc; I at h.i~ decease, .etc. Byc-la.w 15(1) provides .that /. \"on riving satisfactory pr()Of of the. death of a member, the' Generai' Body may tr1msfer the share or the. interest of the member to the person or persons nominated or if there is no. person so nominatecl to such person as may appear to the Ge11eral Body to be the heir or the legal representative of the member or to pay such a sum representing the value of such nominator's share or interest as oete.r- !l mined in accordance with the Rule 23 of the M.C.S. Rules 1961 deducti11g all sums due to the Society from the nominator ..... .'' Under Bye-law 15 ( 4) where a share or shares were issued to a member by virtue of his being a tenant or a lessee what would happen on the death of such a member is provided for.\n\nChapter XX deals with tenants.\n\nBye-law 71 with which it opens C says \"no member shall be a tenant of the Society unless he subscribes to such nnmber of shares as the Managing Committee prescribesi'.\n\n71A, \"Whenever a member to whom a dwelling house/ tenement or flat has been allotted by the society does not require it for his own use for any particular period, he may hand it over to the society for using the same in such manner as it may consider best\".\n\n71B. \"The society may offer the dwelling house/tenements or flats falling vacant in its possession in terms of\n\nthe provisions of bye-law No. 7HA) above, to any E person in its discretion _for temporary occupation for the period indicated by the original allottee on such clear understanding provided that:\n\n(i) It shall give preference to such person as has already been enrolled as member of the society in terms of the provisions in bye-law but who could not be allotted a dwelling house/tenement or fiat . by it;\n\n(ii) It shall enroll the person to whom the dwelling house/tenement or flat is proposed to be allotted as a nominal member if he is not already a mem ber of the society.\n\n(iii) The payments received for such temporary occupation shall be credited to the account of the .original allottee and be apportioned towards satisfaction of the dues and the demands of the society out- •tanding against him under these Bye-laws and the tenancy regulations.\n\n71D. \"A member to whom a tenement is allotted shall occupy it himself and shall not assign, under!et, vac'ate. or pan with the possession of the. tenement . any part thereof without .the previous. consent in writ ·\n\ning of the Managing Committee.\" ·\n\n<~--·\n\n27&\n\n72. \"No dwelling house offered on lease shall be taken ·\n\nby persons who are not members of the Society un\" less no member is willing to take it\".\n\nForm A to the Bye-laws contains \"regulations relating to. tenancies to be granted by the Society to members in respect of houses held by tbe Society\".\n\nFrom a review of the foregoing provisions the position , ith reference to the particular Society is as follows :\n\nThere is no absolute prohibition in the Act or in the Rules or in the Bye-laws prohibiting transfer of interest of a member in the C property belonging to the Society.\n\nTne only transfer which is void under the Act is one made in contravention of sub-section ( 2) of secti'On 47 [see section 47(3)]. We have not been able to find any ether provision anywhere to the same effect.\n\nIn :he scheme. of the provisions a dichotomy is seen between share or interest . in the capital and interest in property of tbe Society.\n\nWhile section 29(2) refers to transfor of a member's share or his interest in tbe capital D or property of any society, section 31 in contrast speak~ of \"the\n\nshare or interest of a member in the capital of a society''.\n\nThe Act, therefore, makes a clear distinction between the share or interest in the capital and share or interest in property of tbe Society. We have also noticed that the Act does recognise interest in the immovable property of the Society as well [see section 4 7 (I) (b)]. We have E seen the qnalifications for membership.\n\nThere is no reason to snppose that if the qualifications under the Bye-laws are fulfilled an application for membership may be rejected. It is admitted that the fiat is owned by the Society and the judgment-debtor has a right or interest to occupy the same.\n\nF This right or interest to occupy is a species of property.\n\nWe have to consider wh1:ther this right to the particular property is attachable and saleable in execution of the decree against the judgment-debtor.\n\nIt is contended by Mr. Chatterjee, amicus curiae, that section 31 of the Act completely bars attachment and sale of the said property in execution of the decree.\n\nWe have already pointed out the difference in language between section 29 and section 31 and also made reference to section 47(1) (b) in that connection.\n\nThere is nothing in G the language of section 31 to indicate that the right to occupation which is the right to be sold in auction is not attachable in execution of the decree.\n\nThere is nothing in section 31 to even remorely include a prohibition against attachment or sale of the aforesaid right to occupation of the fiat.\n\nOnce section 31 is out of the way, we are left with section 29 wherein we do not find even a provision of prior consent for transfer of share or inrerest in such property. The H only restrictions uner section 29(2) are that the member may not transfer his interest in the property prior to one year and the transfer is made to an existing member of the Society or to a person whose application for membership has been accepted by the Society. It is true that byelaw 71D says that a member to whom a tenement is allotted shall not assign or underlet, vacate or part with the possession of the tenement or any part thereof without the previous consent in\n\nwriting of the Managing Committee, but there is nothing to show A that contravention of this bye-law makes the assignment void under the Act unlike in the case of a transfer being void under section 4 7 ( 3) .\n\nThere is no impediment to ratification of the assignment by the Committee particularly in view of the legal position arising . out of the conjoint effect of section 29, rule 24 and bye-Jaw 9.\n\nSect10n 29 read with rule 24 shows that' there is no prohibition as such against trans- B fer of a share to a member or even to a non-member if he consents to be a member .and makes an application for membership by purchasing five shares as provided under bye-law 9. Reading the aforesaid provisions there is no reason to hink that 'there is any guestio? of refusal of membership of the Society to a non-member 1f he 1s qualified otherwise and makes an appropriate .application in which case the transfer of shares will be operative and thus the assignment c of the right to occupation will hold good.\n\nFurther it is significant\n\nt that under section 146(a) of the Act, contravention of sub-section\n\n(2) of section 47 is punishable under section 147 of the Act.\n\nContravention of any bye-law is, however, no offence.\n\nWe, therefore, unhesitatingly come to the conclusion that this species of property. namely the right to occupy a fiat of this type, assumes significant D importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce.\n\nWe have seen no fetter under any of the legal provisions against such a conclusion.\n\nThe attachment and the sale of the property in this case in execution of the decree are valid under the Jaw.\n\nMulti-storeyed ownership fiats on cooperative basis in cities and E big towns have come to stay because of dire necessity and are in !he process of rapid expansion for manifold reasons.\n\nSome of these are: ever growing needs of an urban community necessitating its accommodation in proximity to cities and towns, lack of availability of land in urban areas, rise in price elf building material, restrictions under various rent legislations, disincentive generated by tax laws and other F laws for embarking upon housing construction on individual basis, security of possession depending upon fulfilment of tlie conditions of membership of a society which are none too irksome. In absence of clearand unambiguous legal provisions to the contrary, it will not be in public interest nor in the interest of commerce to impose a b1111 on saleability of these fiats by a tortuous process of reasoning.\n\nThe prohibition, if intended by the legislature, must be in express terms.\n\nWe have failed to find one.\n\nThe phenomenon of ownership of fiats as contra-distinguished from personal houses has been in vogue in England as well as in the, European Continent.\n\nOwnership rights over separate parts of a building are mentioned in Coke on Littleton and such \"super-imposed free holds\" have existed in England in various places for a long time\n\n(see International and Comparative Law Quarterly Volume\n\nVII, H January 1958, pages 36-37).\n\nWith regard to a fiat-owners's right to dispose of his rights, it is pointed out that \"the fiat owner may, in the words of a leadincr French Commentator\" \"sell, donate, leave by will, Jet or hypothecateil\n\n-{ his right.\n\nThe rights are regulated by statutes in the Continent. The\n\nJO SC/75-19 ~~...; ~\";\"\"\"\"-'\"<:.~\n\nA German Statute, for example, allows the flat owner's right to dispose of his property to be made subject to the consent of other flat owners, but such consent may be refused only \"for a very important reason.;\"\n\n[Article 12( I), (2)] and the statute gives the aggrieved flat-owner easy access to the court if a violation of this provision is alleged (see ibid page 39). Thus the trend is towards recognition of these B rights.\n\nNow that attachment and sale have been held to be valid, it will be for the auction-purchaser first to obtain membership of the society and the court before confirmation of the sale will insist upon his membership of the society which, it would not be unreasonable to assume, will be granted by the Society in the ordinary course unless C there are cogent and relevant reasons for not doing so.\n\nThe fact that at the time of auction-sale the purchaser was not a member of the Society would not in law affect the saleability or prior attachment of the property in execution of the valid decree.\n\nThe judgment-debtor has a valid decree against him.\n\nOrdinarily he has to discharge his liability under the decree.\n\nHe can pay the decretal amount straigbtaway or suffer his property to be attached and sold in execution of the decree.\n\nAs an honest debtor the liability under the decree has to be discharged.\n\nHere the Society is not objecting to the attachment and sale of the property, but the judgmentdebtor is.\n\nWe have seen there is no absolute prohibition against transfer of a right to occupation of the flat or even to transfer a share.\n\nThe auction-purchaser is presumed to know the limitations under wltich he has purchased the right to occupy the flat in court auction.\n\nIf ultimately the Society turns down his application for membership (which of course cannot be done except for valid reasons) it is upto him to take such course of action as available under the law.\n\nSuch a remote contingency, per se, will not make the particular right of the judgment-debtor in the flat non-attachable or non-saleable.\n\nIt is contended by Mr. Chatterjee that section 60, Civil Procedure Code, does not specify that this species of property is liable to attachment.\n\nThe argument, however, fails to take note of section 60 being not exhaustive as such.\n\nIt refers also to any other saleable property, movable or immovable, whether the same be held in the G name of the judgment-debtor or by another person on his behalf.\n\nWe have held that the right to occupation of a flat is property both attachable and saleable.\n\nSpecific non-inclusion of a particular species of property under section 60 is, therefore, not of any consequence if it is saleable otherwise.\n\nIn the result the judgment of the High Court is set aside and the judgment-debtor's chamber summons dated March 28, 1972, stands dismissed.\n\nThe appeal is allowed, but there will be no order as to costs except that the court-fees will be pay- H able by the appellant.\n\nWe record our appreciation of the assistance rendered by Mr .. Chatterjee as amicus curiae and also by Mr. Zaiwala, couru; el for the appeilant.\n\nV.M.K.\n\nAppeal allowed.\n\n+ ..\n\n• -", "total_entities": 70, "entities": [{"text": "RAMESH HIMMATLAL SHAH", "label": "PETITIONER", "start_char": 14, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "RAMESH HIMMATLAL SHAH", "offset_not_found": false}}, {"text": "HARSUKH.JADHAVJI JOSHI", "label": "RESPONDENT", "start_char": 37, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "HARSUKH JADHAVJI JOSHI", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 79, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 116, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "P.K. 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{"document_id": "1975_1_281_298_EN", "year": 1975, "text": "ZIY AUDDIN BURHANUDDIN BUKHARI\n\nBRIJMOHAN RAMDASS MEHRA & ORS.\n\nApril 25, 1975\n\n[M. H. BEG, A. ALAQIRISWAMI AND N. L. UNTWALIA, JJ.]\n\nRepresentation of the People Act-Section 123(2), (3) & 3 (A)-Corrupt practice-Appeal 011 the gro1111d of religon-Pn11noti1.1g_ feelings of hatr.ed c:nd en1nity between different classes-Aniend1nent of pet1t1on-form of afJ.1dt; v1t-\n\nVagueness of petition-Evidence Act-Cassettes evidence whether adm1ss1ble-\n\nOrdr of costs in favour of the respondent.\n\nThe appellant a candidate of Muslim League defeated respondent No. 3 C Shauket Chagla, the Congress c.andidate in the Maharashtra State in Assembly Election.\n\nRespondent No. 1, a voter filed an Election Petition, inter alia, alleging that the appellant appealed to the voters to refrain from voting for respondent N~. 2. on the ground of religion and that the appellant promoted feelings of enmity or hatred between different classes of the citizens of India On grounds of religion.\n\nThe appe11ant made the following appeai to the voters in his variuos election speeches :\n\n(1) ~(uslim personal Jaw was a matter of religious faith fr Muslims and that it extended to the mode of disposing of bodies of the dead.\n\nThe voters were told that if they voted for Chagla they would have to cremate the bodies of their dead instead of burying them because Chagla had cremated the dead body of his sister.\n\n(2) The appe1lant entreated hi3 audience not to vote for those who stood\n\n.against\" their religion.\n\n(3) Chagla was not true to his religion and that the appellant was a\n\ntrue Muslim.\n\nl4) If Muslim personal law may be considered a personal matter by Chagla it was considered to be \"the law of God\" by Muslims who F Would not tolerate any attempts to amend it as that would raise a religious question.\n\n~5.) If the Congress Government brought any amendments iil Muslim\n\nreligious law the battle v, rould be fought in every street.\n\n(6) Chagla advocated inter-communal or inter-caste marriages and that he wanted a Hindu to be a member of th~ Haj Committee.\n\n(7) There were references to riots -in which only Muslims were alleged to have been killed.\n\n(8) The appella:nt claimed that he would die far I dam and further said that \"God has blessed us that every drop of our blood would give birth to thousands of Bukharis.\"\n\n(9) \"At the moment we are in such a war in which our opponent is such\n\na person who is playing with our religious affairs. He considers us to H be a community whose conscience is dead.\"\n\n(10) \"We have not signed any deed of slavery for the Government. \\Vhen we find that the Goven1ment i! working against us, our lights are being crushed, our religious affairs are being interfered with, then we will rise openly against it. We would rise like a wan cemented with lead. Then who would bang with this wall, would get his hand broken. No harm would be done to us.\"\n\n(11) Chagla's wife Nalini was a Hindu and his son was named Ashok.\n\nChagla used to attend the mosque as well as the temple and he should be excluded from Muslim localities.\n\n(12) Chagla \\Vas neither a good Hindu nor a true Muslitn sd that neithzr\n\nGod nor Bhag\\van \\Vas pleased with him.\n\nThe High Court allowed the petition and set aside the election of the appellant. The High Court awarded costs of Rs. 12,000 to the first respondent and costs of Rs. 3,000 to the second respondent.\n\nIn the present statutory appeal the appellant contended :\n\n( 1) The affidavit filed by the election petitioner was not in proper form since it does not give the sources of infoITIIation of the corrupt practices.\n\n(2) The High Court erred in not framing issue on the vagueness of the petition.\n\n(3) The High Court erroneously allowed the amendment of the Election,\n\npetition.\n\n(4) The High Court ought not to have relied on the cassettes of tape\n\nrecords.\n\nD ( 5) The appellant merely asked the voters to suport one who opposed\n\nany change in muslim personal law as against another who Wanted to change it. If change of personal law is a secular matter oj:ipositi_on to its change could not become an appeal on grounds of religion.\n\n(6) The order of costs passed by the High Court \\Vas very excessive.\n\n(7) The appellant did not get a fair trial.\n\nHELD : Our Constituticin-makers intended to set up a Secular Democratic Republic.\n\nOur political history made it particularly necessary that the basis of religion, race, caste, community, culture, creed and language \\Vhich can generate powe1iul emotions depriving people of their powers of rational thought and action should not be permitted to be exploited lest the imperative conditions for preservation of democratic freedoms are disturbed. Section 123 (2), (3 J and (3A) were enacted to eliminate from the electoral Process appeals to those decisive factors \\\\,:hich firousc irrational p;:tssions that run counter to the basic tenets of our Constitution. Dile respect for the religious belief and practices, race, creed, cultur~ and language of other citizens is one of the basic postulates of our democratic system. The line has to be drawn by the court between what is permissible and \\vhat is prohibited after taking into account the facts and circumstances of each case interpreted in the context in \\Vhich the stare ments or acts' complained of were1made. The court has to determine the effect of sta.tements made by the candidate upon the n1inds and feelings of the ordinary average voters of this country.\n\n[28'8A-F]\n\nThe High Court was right in holding that tape records of the speeches were documents and were admissible in evidence, provided the voice of the speaker was identified, accuracy of the actual recording ascertained-and the\n\nrelevancy of the subject matter established.\n\n[290A-B] The High Court rightly considered the tape records to be reliable for the f0llcwing three reasons: firstly, the tape records have been prepared by an independent authority, the police ; secondly, transcripts from the tape records \\Vere duly prepared very soon after the tape records were made which made the subsequent tampering easy to detect ; ana thirdly, the police had made !he tape records as part of its routine duties and not for the purpose of laying any trap to procure-evidence. [290G-H, 291A}\n\nTue High Court rightly treated the shorthand notes and. shortand transcripts made by those \\vho heard the speeches as corroborative evidence and \\Vhich could be used by the witness to refresh his memory. [291F]\n\nThe High Court rightly held that the various speeches made by the appellant ¥iolated the provisions of section 123(2), (3) and (3A). We do not consider .such speeches have any place in a democratic set up in our Constitution. Our democracy can only survive if those who aspire to become people's representa- ; tives and leaders understand the ipirit of secular democracy.\n\nIfsuch propaganda was permitted it would injure the interests of the members of the religious minority groups m, ore than those of others. [293 BF, 294 E, G, 295 E, H,\n\n296 BJ .\n\nThe objection that the affidavit \\Vas not in proper form is wholly untenable.\n\nThe aJleged defect is one of lack of particulars which v; ras given up by the .oppellant in the High Court.\n\n(2$6 A & CJ\n\nThere js no substance in the objection that the High Court did not frame an i6Sue on the qutstion of vagueness of the petition. The real objection is that the particulars of the speeches made by the appellant were given in great -Oetail in the statements annexed to the petition with the necessary affidavit. The C law does not require the whole evidence to be set out in the petition in the form of particulars. (286 CDEJ\n\nThe trial c0t1rt by allowing the amendment merely removed the vagueness from the petition by confining the allegation of corn1pt practice against the .appellant himself.\n\n[286 G-H]\n\nVarious allegations have bee~ made of unfairness against the trial Judge.\n\nThere is no substance in those allegations. The nat:ure of these allegations dis-\n\n.closes an unreasonable attitude of the appellant's counse~ which was also exhibited during the course of the trial. [287-F] '\n\nThe order of costs appears tc err on the side of severity.\n\nThe order of costs in favour of respondent No. 2 was set aside since the petition \\Vas filed ''by respondent No. 1. The costs awarded in favour of respondent No. 1 was\n\nredoced from Rs. 12,000 to Rs. 6,000.\n\n(298 E, FG]\n\nCIVIL A.PPELLATE JumsmcnoN : Civil Appeal No. 134 of 1973.\n\nFrom the Judgment and order dated the 27th/28th November, 1972 of the Bombay High Court in Election Petition No. 4 of 1972.\n\nK. K. Singhvi, R. K. Garg, V . .T. Francis and S. C. Agarwala, for the appellant.\n\nM. C. Bhandare, P. H. Parekh, and S. Bhandare, for respondent No. 1.\n\nThe Judgll)ent of the Court was delivered by G\n\nBEG, J.-This appeal under section 116A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') is directed against the Judgment and order of the High Court of Bombay setting aside-the election of the appellant to the Maharashtra State Assembly from Kumbharwada constituency held on 9-8-1972 on a voter's election petition H\n\nThe voter alleged that the appellant, in the course of his election, had committed corrupt practices defined in Section 123, sub. s. (2) and (3) and (3A) of the Act. The gist of the charges against the appellant Ziyauddin Burhanuddin Bukhari (hereinafter referred to as 'Bukhari'), a Muslim League candidate, was, that, he had made\n\nA speeches in the course of his election campaign calculated to induce a\n\nbelief in the voters that they will be objects of divine displeasure or spiritual censure if they voted for Shaukat Currimbhoy Chagla (hereinafter referred to as 'Chagla'), a Congress Party candidate, who was impleaded as the 2nd respondent that, in the above mentioned speeches, the appellant had called upon the electors to vote for him and not for B Chagla on the ground that he alone stood for all that was Mnslim whereas Chagla represented all that was against Muslim religion and belief so that Chagla could not be a true Muslim at all, the object of such appeals being to further the chances of election of Bukhari and to prejudiciaUy effect the prospects of the election of Chagla; that, the -appellant, Bukhari, had attempted to promote feelings of enmity and hatred between Muslims and Hindus on grounds of religion and come munity. Particulars of the speeches delivered at sixteen meetings and what was said there by Bukhari were furnished with the election petition.\n\nThe alleged corrupt practices arc defined in the following provisions. of Section 123 :\n\n\"(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the ca, ndidate or his agent, or of any other person with the consent of the ca:1didatc or his election ai::ent, with the free exercise of any electoral right : Provided that--\n\n(a) without prejudice to the generality of the prov1s10ns of this clause any such person as is referred to therein who-\n\n(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or\n\n(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will became or will be rendered an object of divine displeasure or spiritual censure, shaU be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;\n\n(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.\n\n(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to,. national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that\n\nz. B. BUKHARI v. BR!JMOHAN (Beg, J.) 285\n\ncandidate or for prejudicially affecting the election of A any candidate.\n\n(3A) The promotion of, or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.\"\n\nBefore considering whether the allegations made in the petition are substantiated, and, if so, whether allJI corrupt practice, as defined above C was committed, beyond reasonable doubt, by the appellant. we will deal with certain technical objections placell before us at the outset by learned Counsel for the appellant.\n\nIt is urged that 11llegations of corrupt practices, falling under Section 123(3) and 123(3A), are not supported by the affidavit required D by the proviso to Section 83(1) of the Act. Section 83 of the Act enacts :\n\n\"83. Contents of petition-(!) An election petition-\n\n( a) shall . contain a concise statement of the material facts on which the petitioner relies; E\n\n(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and\n\n(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings :\n\nProvided that where the petitioner alleges any corrupt practice, the petition shall also be accompained by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. '\n\n(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same mamier as the petition\".\n\nIt was submitted that Section 80 of the Act amounts to a prohibition against calling in question any election, \"except by an election petition\n\npreseted in acordan7e with the provisions of this part\" (i. e. Chapter JI which contams Sec!ion 83). Apart from the fact that the High Court dealing with this question had, in our opinion, rightly recorded the finding that the issue No. 2. framed on this objection was specifically grven up in its entirt'ty by the learned Counsel for the a'ppeallant, so that he could not wriggle out of it by a vagne reservation of s01µe right to\n\nA urge that the affidavit filed was not in proper form, we were not shown any defect of form at all in the affidavit filed.\n\nAll that was urged is that the relevant affidavit does not give the sources of information so far as corrupt practices. under section 123(3) and 123(3A) are concerned. As was pointed out by this Court in Hardwari Lal v.\n\nKanwal Singh('), this is not a defect of the required form but may,\n\nB in suitable cases, form the subject matter of an objection based on Section 86 and Section 123 (7) of the Act relating to supply of materi; il particulars. It was indicated by this Court in Prabhu Narayan v. A. K.\n\nSrivastava( 2 ), that a petition can only be dismissed for a substantial defect.\n\nIn the case before us, as there is no defect at all in the form of C the affidavit, and the alleged defecL_ of want of particulars, set up in paragraph 2 of the written statement on which issue No. 2 was framed, must be deemed to have been given up on behalf of the appellant, we cannot now entertain in this Court an objection, based on alleged want of particulars, particularly as nothing material seems to have been wanting.\n\nWe also think there is no substance in the appellant's obiection that the Trial Court had not framed an issue D on an alleged vagueness of the petition which is another way of saying that it was wanting in particulars.\n\nThe particulars of the speeches made by the appellant were given .in great detail in Lhe statements annexed to the petition with the necessary affidavit. We can presume that, if such an objection on the ground of insufficient particulars is actually given up by a party so thl!ct an issue actually framed E on it is not tried, the party could have suffered no disadvantage from alleged want of further details which are reaJly matters of evidence.\n\nThe law does not require the whole evidence to be set out with the petition in !he form of particulars.\n\nStill another objection was that the Trial Court had eroneously allowed an amendment of the election petition by an order dated F 29-9-1972. Reliance was placed upon this Court's decision in Manubhai Nandlal Anersey v.\n\nPopat/al Maini/al Joshi & Ors.(\") and Samant N. Balakrishna etc. v. Geo1ge Fernandez & Ors. etc. ( 4 ), to contend that the amendment 11sked for should not have been allowed. We have examined the application for amendments of the petition sought by the petitioner and allowed by the Court. We think that the amendments really removed vagueness from the petition by G confining th~ allegations of corrupt practice to what of corrupt practice to what the appellant Bukhari himself had said in his speeches. AHributions of those very statements to his agents, in the alternative, whic:h introduced some ambiguity, were deleted. Another amendment sought was the insertion of names of persons said to have made certain other speeches. The High Court had allowed the amendments on the ground that they did not amount to any allegation H of a fresh corrupt practice. The question whether the speeches of certain persons other than the appellant were rightly permitted to become the subject matter of c:onsideration by the amenflment has lost all\n\n(') [1972] (2) SCR 742. (') C.A. No. 1174of1973-1eliverd \"' 14-2-75.\n\n(') [1969] (3) SCR 217.\n\n(') [1969] (3) SCR 603.\n\n\\.·\n\n' y\n\nimportance as the appellant has been held guilty of corrupt practices solely for speeches made by himself and we propose to deal with those only.\n\nWe, therefore, find no force in the objections to the order allowing amendment of the election petition, which only clarified the petitioner's case.\n\nLearned Counsel for the appellant invited out attention especially to ground 'H' of the grounds of appeal. This is the most prolix of all the grounds of appeal the number of which not only exhausts the whole alphabet 'A' to 'Z' but ground numbered 'Z' is divided into subgrounds 'Zl' to 'Z.15', and each of these sub-grounds is further split up into a number of minor grounds. Ground 'H' itself is split up into 22 parts which cover 5 printed pages of our paper book. Ground 'H' thus consists of a long statement of the pellant's grievances about mutifarious mfrlters cov, ering the whole course of trial of the case, such as a permission given by the Court to recall a police Sub- Inspector for further examination, permission accorded by the Court to the respondent's Counsel for getting transcripts of the appellant's tape recorded speeches made under the supervision of a Court officer, permission granted to the Solicitors of Chagla to obtain copies of documents filed, the observations recorded by the learned Judge about the demeanour of witnesses and other similar matters. No illegality whatsoever is even alleged in most of these purported grounds of objection. If these grounds indicate a carpingly unreasonable attitude of the appellant's Counsel during the course of the trial in the High Court or attempts to make mountains out of molehills, they may afford some light on why the rather unusual order of heavy costs was passed by the learned Judge with which we shall deal separately at the end of this Judgment we are, however, linable to find, from material on record, that the conduct of the trial by the learned trial Judge was unfair in any respect. Moreover, we think that the only really material question before the Court for decision, on which we have ourselves re-examined the whole evidence on record, were : Did the appellant's speeches contain what was said to be tape-recorded and also sought to be proved by oral evidence supported by the notes of those who are alleged to have heard these speeches themselves ? If this was so, was their. effect upon the ordinary average voters of this country such as to come within the mischief provided for by any of the three heads of provisions of Sec. 123 of the Act set out above ?\n\nThese are questions capable of determination objectively irrespective Of the snbjective inclinations or opinions of the Judge deciding such issues although we cannot, and should not even try to, escape the consequences, upon any case before us, of our conclusions about the purposes and meanings of the relevant provisions of Section 123 of the Act, set out above, reached by applying relevant rules of interpretation of such provisions. _\n\nw~ propose to indicate, at this stage, what mischief the provisions were designed to suprss because that seems to i:s to be the most illuminating and certam way of correctly construmg these statutory\n\nA prov!510ns. We cannot do so without adverting to the historical, political, and Constitutional background of our democratic set up, such provisions are necessary in our opinion, to sustain the spirit or climate in which the electoral machinery of this set up could work.\n\nOur Constitution-makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the B objectives set forth in the preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the df!crenccs of religion, race, caste, community, culture, creed and c language. Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed.\n\nIt seems to us that Section 123, sub s. (2), (3) and (3A) were en- D acted so as to eliminate, from the clectroral process, appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our Constitution, and, indeed, of any civilised political and social order. Due respect for the religious beliefs and practices, race, creed, culture and language of other citizens is one of the b\"°sic postulates of our democratic system. Under E the guise of protecting your own religion, culture or creed you cannot embark on personal attacks on those of others or whip up low hard instincts and animosities or irrational fears between groups to secure electoral victories. The line. has to be drawn by the Courts, between what is permissible and what is prohibited, after taking into account the facts and circumstances of each case interpreted in the context in F which the statements or acts complained of were made.\n\nSection 123 (2) gives the \"undue influence\" which could be exercised by a candidate or his agent during an election a much wider connotation than this expression has under the Indian Contract Act. \"Undue influence\", a\" an election offence under the English law is explained as follows in Halsbury's Laws of England, Third Edition, Vol. 14, p. 223-224 (para 387):L-\n\n\"A person is guilty of undue influence, if he, directly or indirectly. by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts, or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that that person to vote or refrain from voting or on account of that person having voted or refrained from voting.\n\nA person is also guilty of undue influence if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby compels, induces\n\nor prevails upon an elector or proxy for an elector either to vote or to refrain from voting\". - A\n\nIt will be seen that the English law on the subject has the same object as the relevant provisions of Section 123 of our Act. :But, the provisions Section 123 (2), (3) and (3A) seems widerin scope and also contain specific mention of what may be construed as \"undue influence\" B viewed in the background of our political history and the special conditions which have prevailed in this country.\n\nWe have to determine the effect of stateD1ents proved to have been made by a candidate, or, on his behalf and with his consent, duri11g his election, upon the minds and feelings of the ordinary average voters of this country in every case of alleged corrupt practice of undue influence by making statements. We will therefore, proceed to consider the particular facts of the case before us.\n\nWe have already mentioned above that the offending statements were alleged to have been made by the appellant at sixteen election meetings addressed at various places between 12-2-1972 and 6-3-1973.\n\nOut of these, the petitioner's counsel had given up, in the Trial Court, reliance on speeches a, t four meetings some of which were held at places outside the appellant's constituency. The High Court held that the contents of speeches alleged to have been made on 1-3-1972 at Erskine Road and on 3-3-1972 at Ismail Curtay Road and on 4-3-1972 at Nizam Street by the appellant were not duly proved. The High Court did not find that the statements made by the appellant in the course of the speeches on 12-2-1972 at Kachi Memon J amat Khana and on 23-2-1972 and 28-2-1972 at Chima Butcher Street had transgressed the limits of propriety set by Section 123(2) and (3) and (3A) of the Act. But, it found that the appellant had violated the provisions of either Section 123(2) or 123(3) or 1'23(3A) of the Act by statements made in the course of the remaining six speeches proved to have been made by the appellant.\n\nThe evidence relating to the appellant's speeches, discussed fully by the High Court, consisted of : .\n\n1. Cassettes or tape records of the appellant's speeches.\n\n2. Transcripts of tape recorded speeches prepared shortly after tape-recording them.\n\n3. Full shorthand records of speeches of the appellant by those who heard them at meetings.\n\n4. Notes and records containing summaries of t11c appellant's speeches made by persons attending meetings.\n\n, 5. Statements of witnesses present at the meetings who had actually H heard what was said by the appellant.\n\nThere could be and was no objection raised to the admissibility of the last mentioned type of evidence. But questions re1a.ting t() the admissibility 'of the first four types of evidence, mentioned above, were taken and may be conveniently dealt with here.\n\n290 SUPRJl.ME COURT REPORTS [1975] SUPP s.c.R.\n\nWe think that the High Court was quite right in holding that the tape records of speeches were \"documents\", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions :\n\n(a) The voice of the person alleged to be speaking must be duly identified by thi~ maker of the record or by others who knew it.\n\n(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circum stantial, had to be there so as to rule out possibilities of tampering with the record.\n\n(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.\n\nThese requirements were deduced by the High Court from R. V.\n\nMaqsud Ali ( 1 )\n\nThe High Court had also relied on Yusufalli Esmail Nagree v.\n\nD State of Maharashtra( 2 ), to hold that a contemporaneous tape record of a relevant conversation or speech would be part res gestae.\n\nIn this case, Court, while laying down requirements of admissibility of tape records as evidenct, also pointed out that the case with which the recording on a tape could be erased by subseque!\"t recording, so that insertion could be superimposed, made it E necessary to receive such evidence with caution, and it said that the Court should be satisfied, beyond reasonable doubt, that the record had not been tampered with\n\nThe High Court also referred to N. Sri Rama Reddy and Ors. v.\n\nV. V. Giri,(') for , the proposition that, like any document, the tape record itself was \"primary and direct evidence admissible of what 'F has been said and picked np by the receiver\". In other words, its use was not confined to purposes of corroboration and contradiction only, but, when duly proved by satisfactory evidence of what was fcnmd recorded and of absence of tampering, it could, subject to the provisions of the Evidence Act, be used as substantiative evidence. Thus, when it was di1puted or in . issue whether a person's speech, on a particular occasion, contained a particular statement there could hr G no more direct or better evidence of it thao ;; s tape record, assuming its authenticity to be duly established.\n\nIn our opinion the High Court had rigl., tly relied upon the tape recorded reproductions of the appellant's speee!ies. It had iven three grounds for considering the tape records to be reliable and ai; thentic: firstly, the tape records had been prepared and preserved safely by H an independent authority, the police, and not by a party to the case: second, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control, very soon afterwards, made subsequent tempering with the cassettes easy to\n\n(') [19651 (2) AILE.R.464. ('l 1968 (Vol.70) Bombay Law Reporter 76@';78.\n\n(' !19711 (I) SCR 399.\n\ndetect; and, thirdly, the police had made the tape records as parts of its routine duties in relation to election speeches and not for the purpose of laying any trap to procure evidence.\n\nWe may add a fourth reason. This is that, after, going through the deposition of Bukhari in Court, we find that, although he was identified by police officers as the person who was speaking when the relevant tape records were made, he did not, at any stage, dispute that the tape r.ecorded voice was his. He only denied having made some of the statements found recorded after the tape records had been played in Court in his presence. In fact, he admitted that he knew. that \"the cassettes wern recorded by police officers who gave evidence\" in Court. If the indirect implication of bis dubious statement, in denying some of the statements found in the speeches without denying that the voice making these statements was bis, could be that some portions had been interpolated, the police officers should have been cross-examined about it. Nevertheless, the appell.a.nt admitted, under crosscexamination, that he had given no instructions to his Counsel to cross-examine these officers on this matter.\n\nNo suggestion was put to the police officers concerned indicating that there had been any interpolation in the records the making of which was proved beyond all reasonable doubt by evidence which had not been shaken.\n\nAs regards the shorthand transcripts of the tape records, the evidence of their makers is there, it is certainly corroborative inasmuch as it only goes to confirm what the tape records contained. The tape records were the primary evidence of what was recorded. The transcripts could be used to show what the transcriber had found recorded there at the time Of the transcription. This operated as a check against tampering. They had been rightly used by the High Court only as corroborative evidence.\n\nAs regards the shorthand notes and full short-hand transcripts f: made by those who heard the speeches, the High Court had treated these also as corroborative evidence which could be used by a witness to refresh his memory as laid down in Section 159 of the Evidence Act. It held that their contents could be brought on record by direct oral evidence in -the manner prescribed by Section 160 of the Evidence Act, a course the propriety of which has the support of decisions in G. this Court in Laxminarayan and Anr v. The Returning Officer and\n\nOrs.('), and in Kanti Prasad Jayshankar Yagnik v. Purshottamdas Ranchhoddas Patel and Ors.,( 2). We find no errors in the views adopted y the High Court on these questions.\n\nIt was suggested that the tape recording, the making of transcripts, the making of shorthand notes by the police had taken place at the instance of a Journalist, Yunus Rehrrian Ansari, who appeat'(ld H: as a witness for the petitioner in the case. He had frankly stated in his evidence in Court :\n\n\"During the elections I second respondent.\n\n(1)[19141 3 s.c.c. 425\n\n(2) [1969] 3 SCR 400.\n\nwas looking after the interest of the\n\nI did feel disappointed. when the.\n\nsecond respondent lost the election. Every worker of the candidate feels disappointed if the candidate loses\".\n\nAfter having been taken through the evidence, in the light of the submissions made by the learned Counsel for the appellan!, we are unable to hold that there must have been a conspiracy between the B Police Officers and Yunus Rehman Ansari to procure evidence for declaring the election of Bukhari void. Ansari, although not a disinterested witness, had stood the test of cross-examinatiQ!l well and could not be disbelieved merely because he was a worker of Chagla.\n\nHis evidence is corroborated by the duly proved contents of tape recorded speeches, and, indeed, by some of the admissions of Bukhari C himself showing, inter-alia, that he considered any one who advocated reform of Muslim personal law to be a person unfit to get the support of \"any Muslim\". He said :\n\n\"It is true tha, t Muslim personal law is apart of our religion (Wit. gives this answer after first attempting to evade giving a direct answer). It would follow that whoever attempted to change the Muslim personal law would be attempting to affect the Muslim religion. It is true that whcever attempted to do so would not be entitled to the support of a true Muslim or of any Muslim. I conveyed this repeatedly in my speeches to my electorate\".\n\nWe will now take up the contents of each of the six offending speeches, which, for the reasons indicated above, were rightly held to have been proved beyond reasonable doubt to have been made by the appellant.\n\nThe first of the speeches found to be objectionable was delivered F by the appellant on 27-2-1972, at Masjid Street, within his own constituency. It is true that the contents of this speech are proved only by the evidence of Ansari corroborated by the notes prepared by Ansari himself. But, as these correspond with contents of other speeches examined by us, there seems no reason to disbefreve Ansari when he says that the appellant told the audience that Muslim personal law was a matter of religious faith for Muslims and that it extended to the G mode of disposing off bodies of the dead. The appellant went on to tell the listeners that, if they voted for Cbagla, they would have to cremate the bodies of their dead instead of burying them because Chagla had cremated the dead body of bis sister. The appellant also attacked Chagla's religion by stating that everyone bad to observe his religion whole-heartedly and not like one who was (to put it in the equivalent English idiom) \"neither fish nor fowl\". The appellant en- H treated bis audience not to vote for those who stood against their religion. The clear implication of his words was that Cbagla was not true to his religion whereas the appellant was, and, therefore, the voters should prefer Bukhari. His absolutely unambiguous object was to persuade the audience not to vote for Chagla but w vote tor Bukhan on the ground that Bukhari was a true Muslim whereas Chagla was not.\n\nThe High , Court had referred to Kultar Singh v. Mukhtiar A Singh('), and said that a candidate appealing to voters in -the name <Jf his religion could be guilty of a corrupt practice struck by Section 123 ( 3) of the Act if be accused a rival candidate, though of the Mme religious denomination, to be a renegade or a heretic. The appellant had made a direct attack of a personal cl1aracter upon the competence of Chagla to represent Muslims because Chagla was not, B according to Bukhari, a Muslim of the kind who could represent Muslims. Nothing could be a clearer denunciation of a rival on the :ground of religion. In our opinion, the High Court had rightly hdd\n\nsuch accusations to be contraventions of Section 123(3) of the Act.\n\nThe second speech found to contain objectionable matter was proved to have been delivered by the appellant on 29-2-1972 at Hussainibagh, a place said to be so situated that, though it lies outside the Kumbharwada constituency, a meeting there would be attended largely by persons residing within Kumbharwada constituency.\n\nIts contents were proved by a police Stenographer, Sheikh, who had made a fu!J. short-hand record of it which was translat;, d. In this speech, the appellant was shown to have stated that, although Muslim personal law niay be considered a personal matter by Chagla, it was considered to be \"the law, of God\" by Muslims who would not tolerate any attempts to amend it as that would raise a religious question. In the course of this speech, the appellant is reported to have said that, if the Congress . Government brought i1t \"amendments in our religious law\", the \"battle would be fought in every street\" as \"the question of religion has arisen''. The appellant bad threatened the ruling Congress party with open rebellion if attempts were made to change Muslim personal law which he called \"a question of religion''. The ; ippellant had also made statements implying that Chagla was a supporrer of thi~ policy of change in what Bukhari called \"a matter of religion\" for Muslims. The Hgh Court had held that these statements amounted -to a violation of Section 123 ( 3A) of the Act, on the -ground that Bukhari's language was calculated to promote hostility between Hindus and Muslims. It opined that, in the appellant's mind, fae Congress stood for the Hindu majority. We think that the language employed, viewed in the context of its purposes, could also fall within •the purview of Section 123 ( 3) of the Act inasmuch as Chagla was represented as a candidate advocating what was contrary to Bukhari's view of Muslim religion. Indeed, the words used by Bukhari could be said to have even graver implications. However, we think , that it was sufficiently unrestrained and irresponsible so as to promote feelings of hostility between different classes of citizens of India on ground of religion and also directed personally against Chagla, an alleged supporter of an. assumed attack on Bukhari's relion. We do not find sufficient reason to dilfur from the view adopted by the High Court that these statements amounted to electoral offences struck by Section 123(31\\.) of the Act. ·\n\n' The third speech containing objectionable matter was proved to have been delivered by the appellant on 2-3-1972 at Saifi Jubilee\n\n(I) [!964] 7 S.C.R. 790.\n\nA Street within his own constituency. Its contents are proved by a full transcript made by Police Stenographer Sheikh, of which an English translation was before the Court, and by the oral evidence of Ansari corroborated by Ansari's notes. It contained allegatins against Chagla's faithfulness to Muslim religion on the ground that he had advocated inter, communal or inter-caste marriages and that he wanted n a Hindu to be a member of the Hai CommiHee.\n\nAfter the usual fulminations against Chagla, the appellant flung a question addressed to Chagla. It was translated : \"With what cheek you say that you are a representative of ours\"? In addit, ion, there were references to riots in which only Muslims were alleged to have been killed. There was also the usual statement that Muslim personal law was a matter of C religion to Muslims. Bukhari then declared that if this law was sought to be changed, Muslim league candidates \"would become such a wall for them against which they will break their heads\". Bukhari Claimed th!tt he could die for Islam. He then said: \"God has blessed us that every drop of our blood would give birth to thousands of Bukharis\".\n\nIt appears to us that the High Court was right in construing the D speech as highly inflammatory. It certainly amounted to the assertion that Muslim religion (or, what Bukhari thought it was) was in danger and could only be saved by man like Bukhari and not by Chagla.\n\nWe. think that it is, a fair construotion on the speech to holp that it amounted to at least a violation of Section 123(3) of the Act.\n\nthink that it was also struck by Section 123(3A) of the Act.\n\nThe fourth speech of the appellant, said to contain offending matter, was shown to have been delivered on 6-3-1972 at Bara Imam Road within the appellant's constituency. It was tape recorded by Sub Inspector N. A Khan. In it, after the usual accusations, Chagla is attacked in the following words :\n\n\"At the moment we are in such a war in which our opponent is such a person who is playing with our religious affairs.\n\nHe considers us to be a community whose conscience is dead\".\n\nThe High Court rightly held it to be a violation of Section 123 O} of the Act.\n\nAnother part of' the speech which the High Court is held to be violative of Section 123 (3A) of the Act runs as follows :\n\n\"We have not signed any deed of slavery for the Government.\n\nWhen we feel that this Government is working against us, our rights are being crushed, our religious affairs. arebeing interfered with, then we will rise openly against it.\n\nWe would rise like a wall cemented with lead. Then who would bang with this wall, would get his head broken.\n\nNo harm would be done to us\".\n\nIt could be argued that, even if it did not directly contravene the letter of Section 12:i(3A) of the Act, it was an incitement to violence ..\n\nWe, however, do not think ; t necessary to go further into this ques- A\n\n~ + tion here. We are not prepared to disagree with the opinion of the High Court about this speech. The High Court had rightly concluded that, in the appellant's mind, the Congress Govt. constituted \"Hindu Raj\". ' The fifth objectionable speech -0! the appellant was shown to have been made on 6-3-1972 at Saifi Jubilee Street within the Kumbhar- B\n\nwada constituency. This speech was beard by Sub-Inspector Kulkarni • who had made notes conta, ining the gist of all the speeches delivered at the meeting. Nothing was brought out to cast any doubt on the vcracity of Sul>-Inspector Kulkarni, who appeared as a witness and gave\n\n> .I out the contents of the appellant's speech. In the speech, the appelc • lant bad attacked Chagla and bis family on the ground that Chagla had advocated the inclusion of Bindus in the Raj Committee. Bukh; i.ri alleged that Chagla's wife, a Hindu lady called Nalini; his son Ashok,\n\n~ as well as Chagla used to attend the mosque as well as the temple.\n\nBukhari went .so far as to state that Chagla should be excluded from Mu.slim localities .. Bukhari alleged that Chagla and his family pleased D neither Allah nor Bbagwan. In other words, Bukhari, apart from mak ing a direct attack on the alleged religious beliefs and practices of the Chagla family, clearly conveyed to the bearers that C.hagla was an unfit person, on the ground of his mixed religious faith and practices, to represent Muslims. Bukhari had also called upon Muslims to unite against such a person if they wanted their religion. to survive.\n\nThe High Court had very rightly held that these statements contravencd the provisions of Section 123(3) of the Act.\n\nThe sixth and the last spch containing offensive matter was shown to have been made on 6-3-1972 at Chowki Mahalia Undcria Street which, although outside the Kumbhatwada constituency, was so situated as to attract the voters from the Kumbharwada constituency F '\n\n~ hardly 600 ft. away. The speech was tape recorded by Sub-Inspector N. A. Khan.\n\nIn this speech, the appellant again attacked Chagla and repeated what, according to him, he had also stated at another meeting, that is to say, that Cbagla was neither a good Hindu nor a true Muslim\n\ny so that neither God nor_ Bhagwan was pleased with him.\n\nHe compared Chagla to a Dhabi's dog who neither belonged to the Dhabi nor to the Ghat.\n\nThe appellant, while thus attacking the alleged personal G • beliefs and practises of_ Chagla, obviously in an attempt to induce the voters to re(raiu from voting for Chagla, prayed to God for success so that no one may be able to attack the religion of Bukhari.\n\n• The whole outlook revealed by the speeches of Bukhari is that of a medeival crusuder who had cml:\\a.rked on a Jehad for extirpation of the • heresy or \"kufr\" which, in Bukhari's imagination, was represented by H Chagla and bis party. We do not consider such speeches to have.any place in a democratic set up under onr Constitution. Indeed, they have none in the world of modern science which has compelled every type of religion, for.its own survival, to seek securer foundations than childlike faith in and unquestioning conformity of obediency to an invat. -/\n\nriaqle set of religious beliefs and practises.\n\n10 SC/75-20.\n\n..,.._,_ ---- -\n\nA We do not think that any useful purpose is served by citing authorities, as the learned Counsel for the appellant tried to do, to interpret the facts of the case before us by comparing them to the very different facts of other cases.\n\nIn all such cases, the line has no doubt to be drawn with care so as not to equate possible impersonal attacks on religious bigotry and intolerance with personal ones actuated by bi- 'B gotry and intolerance.\n\nAs already indicated by us, our democracy can only survive if those, who aspire to become , people's representatives and leaders understand the spirit of secular democracy. That spirit was characterised by Montesquieu long ago as one of \"virtue\". It implies, as the late C Pandit Jawaharlal Nehru once said, \"self discipline\". For such a spirit to prevail, candidates at elections have to try to pursuade electors by showing them the light of rea, son and not by inflaming their blind and disruptive passions. Heresy bunting propaganda on professedly religious grounds directed against a candidate at an election may be permitted in a theocratic state but not in a secular republic like ours.\n\nIt is evident that, if such propaganda was pcrmited here, it would in- ' i> jtire the interests of members of religious minority groups more than those of others. It is forbidden in this country in order to preserve the spirit of equality, fra!ernity, and amity between rivals even during elections. Indeed, such prohibitions are necessary in the interests of elementary public peace and order.\n\nLearned Counsel for the appellant submitted !hat if we considered the substance of what was said by the appellant it would only amount to a plea that the voters should support one who opposes any change in Muslim personal law as against another who wanted to change it.\n\nIf change of personal law is, it is suggested, only a secular matter, opposition to its change could not become an appeal on grounds of religion. To accept this argument would be to view the appeal to the voters after turning it upside down, or, perhaps, inside out. We are not concerned so much with the real nature of what is opposed or supported as with the grounds on which a candidate claims support over a rival We have to primarily examine the cloak which the appeal wears to parade in and not only what lies !Yeneath it.\n\nG If all human activity in this world could be labelled \"secular\", on the ground that' it appertains to \"this world\" as against \"the other world\", all religious thought and activity could be described as \"secular\", as it takes place in this world, But, •the term it not used so broadly. It is a convenient label to distinguish all that is done in this world without seeking the intervention or favour of or propitiating a Superhuman or Divine Power or Being from that which is done professedly H to please or to carry out the will of the Divinity. Secularism, in the realm of Philosophy, is a system of Utilitarian ethics, seeking to maximize hmnan happiness or welfare quite independently of what may be either religious or the occult.\n\n. Primitive man does practically nothing without making it wear a religious garb because his understanding of the physical world, of\n\nT- -(\n\n•.·\n\n.. '\n\n' -\n\nf -I\n\nZ. B. BUKHARI V.<BRIJMOHAN'{Beg, J.)\n\nhuman nature, and of social needs and realities, is limited. He SU!\" rounds customary modes of action with an. aura of superstitious re verence. He is fearful of departures from these lest he is visited b) Divirtc wrath. Modern man, with his greater range of scientific knowledge and. -bter understanding of his own needs as well as of the nature of the Universe; attempts to confine religion to its proper sphete----\"that where he reaches a satisfying relationship between himself and the Divinity he believes in s,0 as to get an inner strength and solace-' which enable him to overcome psychologiql crises or fears when confronted with disturbing or disrupting events, such as a Death, or their prospects. He does not permit his religion, which should be essentially his fodividual affair, to invade what are properly the spheres of law, politics, ethics, aesthetics, economics and technology, even where its administration is institutionalised and it operates as a soc.ial force. ·\n\nThe Secular State, rising above all differences of religion, at\\empts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits\n\nto citizens of all castes and creeds. Maitland. had pointed out that D such a state bas to cnsur_e, through its laws, that the existence or exercise _of a political or civil right or the right or capacity to occupy any dffiee or position under it or to perform any public duty connected with_ it does not depend upon the 'profession or practise of any particul_ar religion. Therefore, candidates at an election to a legislature, which is a part of \"the State\", cannot be allowed to tell electors that their rival• arc unfit to act as their representatives on grounds of their E religious professions or practices. To permit snch propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State.\n\nOur Constitution and ihc Jaws framed thereunder leave citizens F free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics.\n\nB, ut, they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for Courts to determine, in a case of dispute, whether any sphere was or was not properly Interfered with, in accordance with the Constitution, even by a purported law. The validity of Section 123(2), (3) and (3A) G has not been questioned before us. And, we have explained above what these provisions are meant for.\n\nTo return to the precise question before us now, we may repeat that what is relevant in such a case is what is professed or put forward by a candidate as a ground for preferring him over another and not the motive or reality behind the profession or ostensible ground that H very secular or mundane. It is the professed or ostensible ground that matters. If that ground is religion, which is put on the same footing as race, caste, or language as an objectionable ground for seekincr votes, it is not permissible. On the other hand, if support is souglrt on a ground distinguishable from those falling in the prohibited caregories, it will not be struck by Section 123 of the Act whatever else\n\nA it may or may not offend. It is then left to the electorate to decide whether a permissible view is right or wrong.\n\nAccording lo his own professions, the appellant wanted votes for himself on the ground that he staunchly adhered to what he believed to be Muslim religion as contrasted with Chagla who did not. There is no doubt whatsoever in our minds that the High Court had rightly found the appellant guilty of the corrupt practices defined by the provisions of Section 123(2), 123(3) and 123(3A) of the Act by making the various speeches closely examined by us also.\n\nLastly, we have before qs the order for costs made by the High Court in the following terms :\n\n\"Having regard to the provisions of Section 99 of the Act and Rules 24 and 26 of the Rules framed by this Court under the Act, I order the first respondent to pay to the petitioner the sum of Rs. 12,000/- for costs. I also order the first respondent to pay to the second respondent the sum of Rs. 3,000/- for costs. There will be no order in regard to costs of the other respondents as they have not filed written statements or appeared at the hearing.\"\n\nWe think that, although Section 99 of the Act may permit th~ award of special costs in suitable cases, and, although, the appellant J1as been found guilty of corrnpt practices of quite an offensive kind, E yet, the Qrdcr for costs appears to us to err on the side of severity.\n\nIf the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him . under the Jaw. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the\n\ncase before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We, therefore, set aside the order awarding Rs. 3,000/- as costs to Chagla, We also reduce by half the costs awarded to the successful petitioner, !hat is to say from Rs. 12,000/- to Rs. 6,000/-. We, however, think that the appellant must pay respondents I and 2 in this Court their costs occasioned by his appeal .\n\nG to this Court.\n\nThe result is that, subject to the modifications of the order for costs, to the extent indicated above, this appeal is dismissed with costs to respondents I and 2 on whose behalf appearance was put il).\n\nP.H.P.\n\nAppeal dismissed.\n\n' ,", "total_entities": 51, "entities": [{"text": "ZIY AUDDIN BURHANUDDIN BUKHARI", "label": "PETITIONER", "start_char": 0, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "ZIYAUDDIN BURHANUDDIN BUKHARI", "offset_not_found": false}}, {"text": "BRIJMOHAN RAMDASS MEHRA & ORS", "label": "RESPONDENT", "start_char": 32, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "BRIJMOHAN RAMDASS MEHRA & ORS", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 81, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "M. 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{"document_id": "1975_1_299_314_EN", "year": 1975, "text": ".;. ___ _\n\nPURAN SINGH & ORS.\n\nSTATE OF PUNJAB\n\nApril 25, 1975.\n\n[N. L. UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.]\n\nPenal Code-S. 99 to 102-Private defence when can be' exercised-\" Settled possession\" 1neaning of.\n\nAll the appellants \\\\'ere convicted by the Sessions Jndge under s. 302 read with s. 149 l.P.C. and s. 326 read with 149 I.P.C. and sentenced to life C in1prisonment. The High Court affirmed the conviction and sentence.\n\nIn a dispute over land 'between the party of the appellants and the con1 plainant, the appellants alleged that they had redeemed the mortgage . in respect of the ]and and thereafter the mortgagee had himself delivered possession of the land and that they had grown \\Vheat crop in it. The complainant, to whom the mortgagee sold bis mortgage rights, tried to take its possession D forcibly. It was alleged that on the day of the occurrence the complainant and his party, arn1ed with deadly \\veapons, entered the disputed land and tried to destroy the \\Vheat crop. In the scuffle that ensued. two pe; rsons of the complainant's party died and ome persons on both sides were injured. On the question of possession of the 1and the High Court gave a finding in favour of the appellants but on its own interpretation of the decision of thiS Court in\n\nM1tnshi Rani and Others v. Delhi Adn1inistration held that the appellants vtho \\Vere not in settled possession of the land, \\Vere rank trespassers and E secondly that, instead of indulging in a free fight with the opposit~ party, the appellants could have taken recourse to the public authorities. Since the appeJJants had eXceeded the limitations provided iri s. 99 to 102 I.P.C. they could not claim any right of private defence.\n\nAllowing the appeal,\n\nF HELD : ( 1) It is difficult to lay down any hard and fast nlle as to when the po'SSeissjon of a trespasser can mattffe into settled possession. But \\Vhat 'this Court really meant was that the ,.-possession of a trespasser must be effective, undisturbed and to the kno\\vledge of the owner or without any attempt at concealment. There is no special charm or magic in the \\VOrds \"settled possession\" nor is it a ritualistic formula which can be confined in a strait jacket but it has been used to mean such clear and effective posSes~ sion of a person, even if he is a trespasser, \\Vho gets the right under the criminal la\\V .to defend his property ngainst _nttack even by the true o\\vner.\n\nG The nature of possession in such cases which may entitle a. trespasser to exercise the right of private defencB of property and person should contajn the following attributes : (I) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be within the knowledge either express or implied~ of the owner orwithout any attempt at concealment and Vihich contains an elcn1ent of anifnus possendie.\n\nThe nature of possession of the trespasser \\Vould ho\\vever be a matter to be decided on facts and circum5tances of each case (iii) the H process of dispossession of the tn1e owner by the trespasser must be complete and final and mnst be acquiesced in by the tn1c owner; (iv) that one of the usual tests to determine the quality of settled possession, in the ca1e of culturable Jand, would be whether or not the trespasser, after having taken\n\npossession, had grown any crop. If the crop had been grown by the trespasser, then even the true o\\vner bas no right to destroy the crop gro\\vn by the trespasser and take forcible possession. In such a case the trespasser will have\n\nA a right of private defen.::e and the tn1e owner will have no right of private defence. [307E-H, 308A-D]\n\nIt is manifest that th1~ finding of the High Court on the facts of the present case that the appellants were not in settled possession of the land is legally erroneous and_ cannot be allowed to stand. The ratio of the judgment of this Court in Munshi Rain's case has not been correctly applied by the High B Court. [310-C-D]\n\nM1111slii Rani and 01'/iers v. Delhi Adn1inistrario11, [1968] 2 S.C.R. 455 explained and followed.\n\nHonun and others v. Rex, A.LR. 1949 All. 564, .'i67 Sangappa and others\n\nv. State, I.L.H .. [1955] Hyd. 406, /11 re : Mookti l\\'adar, and others AJ.H .. [1943j !\\Iad. 590, Hazara Singh and others v. The State, A.LR. 1959 Punjab\n\n570. Bhartu v. State. A.l.R. 1954 All. 35=(1954) Cr. L.l. 54 !'hula SiaRh\n\nv. Emperor, A.l.R. 1927 Lah. 705=28 Cr!. L.J. 848, referred to.\n\n(2) The appe11ants \\Vere protected by the right of private defence ot their property and person and the prosecution case against the appellants, \\vhich has not-been proved beyond rea5onable doubt must fail. It is not the law that a person when called upon to face in assault must run away to the police station and not protect himself or when his property has been the subject matter of trespass and mischief he should allow the aggressor to take pos5ession of the property while he should run to the public authorities. Where there is an attribute of invasion or aggression on the property by a person who has no right to possession then there is o)Jviously no room to have recourse to the public authorities and the accused has an undoubted right to resist the attack and use even force if necessary.\n\nThe right of private defence of property or person, ivhcre there is real apprehension that the\n\nagressor might cause death or grievous hurt to the victim, could extend to the causing of death also and it is not necessary that death or grievious hurt should; actualfy be caused before the right could be exercised. A mere reasonable apprehension is enough lo put the right of private defence into operation. [311-B-Dl\n\nJai Dev v. Tlic State of Pr.:11iab (1963] 3 S.C.R. 489 an<l A111jad Kha1i v.\n\nJ!ie State, [1952] S.C.R. 567, followed.\n\nJn the present case it could not be said that the appellants had exceeded the right of private defence. The appellants were undoubtedly in possession of the land and hac; l grown wheat crop and the prosecution part}' had tried to doslroy the wheat crop. The appellants were entitled to resist the invasion of their right by the prosecution party.\n\nAgain it cannot be. said that the appellant<; had in any eYent exceeded their right of private defence. As the rrosecnti.on had deliberately suppressed the very matedal part of the origin of the occurrence it is not known how the occurrence started. Secondy \\Vhen t\\VO persons on the side of the accused \\vere injured by gun fire it \\Vas not p6ssible for them to \\veigh their blo\\vs in golden scales in order to assault the prosecntiori party. }Jter two mcmbyrs of their party had received gun sot injuries the appellants would have undoubtedly a reasonable apprehension that eithr death or grievous hurt could be caused to the members of their party or one of them.\n\nThis being the position they were fully justified in causing the death of the decea-sed persons in exercise of their right of p1ivate defence of person. Such an a_1:prehension could not be said to be hypersensitive or based on no ground and it will be idle to content that the appellants could have waited until one of their party members would have died or received serious injuries before acting on the spur of moment. nor could one expect a person who is attacked by an agressor to modulate his blows in accordance \\Vith the injuries he received. [312E-ll, 313G-H, 314ABC]\n\nState of Gujarat 11. Sai Fatin1a & Anr. [19751 3 S.C.R. 993, followed.\n\nPURAN SiNGlI v. PUN°JAB (Faiar Ali, J.) 301\n\nCRIMINAL ,\\PPELATE JURISDICTION :. Criminal Appeal .No. 266 of 1971.\n\nAppeal by special leave from the judgment and order dated the 10th February, 197_1 of the Punjab and Haryana High Court iu Criminal Appeal No. 1034 of 1969.\n\nR. K. Garg, S. C. Agarwala and V. J. Francis, for the appellants. h\n\n0. P. Sharma and M. S. Dhillon, for respondent.\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J.-The appellants Puran Singh, Piara Singh,\n\nBkshish Singh, Boliar Singh aud Balkar Singh have been convicted under S. 302/149 I.P.C, and sentenced to life imprisonment and a C fine of Rs. 200 each and in default six months. rigorous imprisonment and under ss. 326/149 I.P.C. to one year rigorous imprisonment and l!nder s. 148 J.P.C. to one year simple imprisonment.\n\nThe learned , Sessions Judge who tried the present cas~ has also convicted one Pargat ' Singh the brother of Bakshish Singh and son of Charan Singh but this accused has been acquitted by the High Court of Punjab and Haryana-\n\n. D hereinafter refrred to as 'the High Court'. The High Court, has, however, affirmed tqc conviction and sentences of the five appellants and dismissed the appeal filed by the appellants before it-hence this appeal to this Court by special leave.\n\nIt is not necessary for us to detail the facts of this case, because the decision of the matter lies within a very narrow compass: Mr. R. K.\n\nGe.rg appearing for the appellants has raised a few questions of laiv and according to his submissions the appeal should succeed on the question of law on the basis of the findings given by the High Court.\n\nThe unfortunate incident in the present case which led to the loss of two valuable lives appears to be the result of chronic land dispute between the parties and a competitive race for taking possession of the land by the prosecution or the accused.\n\nThe story opens with a usdructuary mortgage which was executed by H ari Singh the original owner in respect of 29 Kanals 14 Murlas of land in favour of the appellants Puran Singh and Piara Singh and one Nishan Singh for a sum of Rs. 3000/-. Soon thereafter the mortgagees sold their mortgage rights to Makhan Singh father of Dilbagh Singh of the prosecution party.\n\nOn July 28, 1966 the appellants Purim Singh and Piara Singh and one Smt. Chandra daughter of the appellant Bakshish Singh purchased the equity of redemption in the said land from Hari Singh\n\nfor a sum of Rs. 20,000 and undertook to liquidate the mortgage debt. According to the defence the mortgage debt was actually discharged on May 30, 1967 and a few months later mutation was sancticmed in favour of the accused on July 13, 1967. Having, however, failed to take possession of the mortgage property after having redeemed the mortgage, the purchasers of the equity of redemption, namely, the party of the appellants filed a suit for possession against Dilbagh Singh in tlie Cou~ of the Subordinate Judge, Hoshiarpur on\n\nOctober 4, 1967. One of the dates fixed in this suit was October 27, 1968 when, according to the prosecution, Puran Singh, Piara Singh,\n\nA Ilakshish Singh, Pargat Singh and Chandra Singh entered the land in dispute and demolished the kothas of the complainant. A complaint was filed by Dilbagh Singh on October 30, 1968 against the accused and Ajmer Singh Sub-Inspector of Police alleging that the accused had entered the land and demolished the kothas belonging to the complainant with the active aid of the police.\n\nIn this corn- B plaint although the complainant did not admit in so many words that the accused had taken forcible possession of the land and demolished the kothas, yet from the facts and circumstances proved in this case there was no doubt that it was a fact that the complainant in spite of his best attempts was dispo.scsscd by the party ol' the accused.\n\nWhile the complaint was being enquired into, the suit filed by Puran Singh and others was dismissed C on November 21, 1968 on the ground that the suit was not maintain-\n\n3hlc and the plaint was returned to the plaintiffs for presentation to the proper authorities, namely, Revenue Courts. Emboldened by this success in a civil suit, it appears that the complainant Dilbagh Singh along with Sohan Singh. Bachan Singh, Sulakhan Singh, Baj Singh and others went to the field in question and started ploughing it and D sowing Sarson.\n\nWe might mention here tl1at the definite case of the accused has been that after taking possession of the land in question from the complainant the appellants had grown wheat in the land and on the date of occurrence the complainant party tried to destroy the crop which led to mutual fight between the accused and the complainant patty resulting E in the death of the two deceased persons of the prosecution party and according to the defence injuries on Mohan Singh and Bohar Singh who were on the side of the accused.\n\nAccording to the prosecution while the prosecution party was busy ploughing the land and sowing Sarson crop in the field all the appellants F variously armed with gun, barchhas, kirpans, gandasis and axes cntcrcri upon the land and Pargat Singh fired his gun as a result of which Dilbagh Singh and Bachan Singh fled away leaving the two deceased persons and Schan Singh behind.\n\nThereafter the accused Puran Singh and Piara Singh surrounded Sulakhan Singh -and inflicted various injuries on his body with kirpans, while Bakshish Singh gave spear blows in the thigh and abdomen of Sulakhan G Singh. The appellants Balkar Singh, Puran Singh and Piara Singh inflicted with their respective weapons blows on Baj Singh, Sohan Singh P. W. 9 who tried to rescue his brother was also assaulted by Balkar Singh, Bohar Singh and Bakshish Singh.\n\nPuran Singh and Piara Singh arc also alleged to have assaulted Sohan Singh with their weapons.. The victims then fell down on the ground and then the accused made good their escape. The three injured persons were. re- H moved to the civil hospital at Hoshiarpur but Sulakhan Singh succumbed to his injuries on the way while Baj Singh and Sohan Singh were admitted in the. hospital.\n\nThe F.I.R. was lodged on November 27, 1968 by Baj Singh one of the injured persons on the basis of which the present case started and after usual investigation a charge-sheet was submitted against the accused which resulted in their ultimate conv'.ction and sentences as mentioned above.\n\n...,,._\n\nPURAN SINGH v, PUNJAB (Fazal Ali, J.)\n\nThe defence of .the appellants was that they had redeemed the A mortgage debt and thereafter the mortgagee had himself delivered possession of the land to the appellants some time in 1968, and since then the appellants were in peaceful possession. of the land and had grown wheat crop therein.\n\nDilbagh Singh being c!issatisfied with his having to part with the posscsion of the property filed a false complaint against the appellants and thereafter tried to take forcible B possession of the land from the appellants with the show of force.\n\nAccording to the defence, the prosecution party was also armed with gun, axe, kirpans and other deadly weapons and the accused tried to resist their being dispossessed and assaulted the prosecution party p11rely in the exercise of their right of private defence of person and property.\n\nAccording to the c!efcnce two persons on their side were injured one of them Mohan Singh had received gun-shot injury, C whereas Ilohar Singh bad also received gun-shot injuries.\n\nThe High Court after discussing the evidence appear to have given a finding in favour of the accusec! so far as the question of possession of the land is coneen; cd, but in view of the decision of this Court in Munshi Ram and Others v. Delhi Administration,(!) on its own interpretation, held that as the appellants were not in settled possession of the D land and were rank trespassers they could not have any right of private defence.\n\nAppearing for the appellants Mr. Garg submitted that the High Court hac! taken an erroneous view of the law and had misinterpreted the judgment of this Court in Munshi Ram's case (supra). Before, however, coming to the judgment we would like to extract the findings of fact arrived at by the High Court on the question of possession which forms the basis of the right of private defence claimed by the acc11scd.\n\nIn this connection the High Court found as follows:\n\n\"Certain admissions wrong out from the prosecution witness in cross-examination, however, do show that about ' one month or so prior to the occurrence, the vendce-appcllants. had somehow entered upon the disputed land and taken its physical possession, and had possibly sown wheat crop in it. .................... .\n\nAfter some prevarication, witness admitted that on the dav of occurrence Dilbagh Singh had told him that they should go and plough the field and take its possession. Witness thereupon took the kulhari from the house of Dilbagh Singh and proceeded to the place of occmrence with the deceased persons.\n\nSohan Singh does not say a wore! that they had sowed or were sowing wheat crop at the time of occurrence in this field. He stated that at about 5 P .M. they were busy sowing sarson in the field ............. ..\n\nDilbagh Singh, P.W. 12, in examination-in-chief stated that about one month before the occurrence, all the accused, excepting Bohar Singh and Balar Singh, had cemolishe.d his kothas in the dispmcd fielc! with the help of the Police ...\n\n(l) [1968] 2 SCR 45S .\n\nThough in this complaint it is not specifically alleged that P_uran Singh, Piara Singh etc., had taken forcible possession ()f the land, yet the same read with the admission made by P. W. Sohan Singh already referred to above, shows that Dilbagh Singh had been ousted from possession of the land on the 27th October, 1968, and thereafter the appellants continued in its actual possession till the occurrence took place .................. In Rabi J 968, as has been deposed to by Patwari Bchari Lal, P.W. 14, wheat crop was standing in the disputed khasra 17 /9 when he inspected the harvest at the spot in April 7, 1969.\n\nIn the visual site-plan, Exhibit PZ, which, accoreing to AS.I. Kartar Singh, was prepared by him on November 27, 1968, it is mentioned that the field was under wheat cultivation. It is unfortunate that no question was put to the AS.I. in cross-examination to show as to what was the size of the wheat crop.\n\nIf at the time of occurrence, sprouted wheat crop was in the field and if, as has been deposed to by P.W. Sohan Singh, the complainant party had gone there armed to take back the possession from the accused party, this wheat crop might have been sown by the vendee-appellants some eays prior to the occurrence.\n\nThough the facts elicited in the cross-examination of the prosecution witnesses or otherwise brought on record fall short of positive proof of this wheat crop having been sown by Piara Singh and Puran Singh appellants, yet the possibility of that being a fact cannot be ruled out.\n\nThus, even if the view most favourable to the accused, of the evidence on record is taken, then also the possession of the appellants, which commenced about one month prior to the occurrence, was little better than that of a trespasser.\n\nIt is now settled law that even a person nghtfully entitled to immediate actual possession has no right to oust a trespasser by force if that trespasser is in settled possession of the lane.\n\nSuch a trespasser in established possession is entitled-unless he is rejected in due course of law-to defend his possession even against the rightful tenure-holder or owner.\n\nThis is what was laid down by their Lordships of the Supreme Court in Munshi Ram v. Delhi Administration\n\nA.I.R. 1968 S.C. 702.\"\n\nFrom these findings of the High Court, which arc basee on the admissions of some of the prosecution witnesses and are corroborated by the circumstances proved by the prosecution, it is quite clear that the party of the appellants had undoubtedly tak<; n possssion of_ th~ land in dispute to the knowledge of the complamant D1lbagh Singh at least a month before the occurrence and had sown wheat crop on the land in question.\n\nJn fact this finding is based on very cogent\n\nPURAN SINGH v. PUNJAB (Fazal Ali; J.) 305\n\nmaterial because it woulc! appear that P.W .. Sohan Singh one of the A eye witp.ess clearly state\\! in his evidence that about a mol)th before ,,. the occurrence Puran Singh and Piara Singb took possession of the land with the help of the police.\n\nThis witness further admitted as follows :\n\ni J\n\n' '\n\n> -I\n\n\"Dilbagh Singh did tell me that we shonld •go and B plough the field and take its possession .. I hac! taken the Kulhari from the house of Dilbagh Singh in .the field.\" . . .\n\nHe further admitted in his evidence that after the kotlzas ere demolished, Dilbagh Singh used to live in the village.\n\nThis also corroborates the fact that the complainant's party was dispossessed on October 27, 1968, when the accused hac! taken forcible posses- . sion of the land and since then the complainant Dilbagh Singh had started living with Sohan Singh in the village.\n\nSimilarly another eye witness P. W. 10 Jagtar Singh admitted that he did state to the police that the appellant Puran Singh had taken forcible possession of the land about one month earlier.\n\nP .W. 12 Dilbagh Singh, the complainant himself depose<! that he had stated before the police that they had sown Sarson as well as\n\nwheat in the field and when he was confronted with his previous statement before the police where he had mentioned the fact that\n\nhe and his companions had ploughed the field and were preparing the furrows or sowing Sarson. The witness further admitted in his evi- E tlence that most of the crop was, however, wheat.\n\nP.W. 14 Bchari Lal, Patwari, has stated that he effected the Girdawri on April 7, 1969 and found wheat crop standing in Khasra No. 16/2 anc! 16/9 which was shown to be in possession of Puran Singh.\n\nThe evidence of this witness fully corroborates the evidence F of the prosecution witnesses that the accused party had dispossessed the complainant from the land in dispute as far back as October 27, 1968 which led to the filing of the complairlt by Dilbagh Singh and thereafter it was the accused party and not the prosecution party which hacl sown wheat crop on the land. ·\n\nFinally, even in the F.1.R. it appears that the informaat had G admitted in categorical terms that the accused Piara Singh and Puran Singh had taken forcible possession of the land.\n\nThis statement runs thus :\n\n\"Dilbagh Singh had been in possession of this land, bl1t some days after the Dewali, Piara Singh anc! Puran Singh took forcible possession of this land. Now, some days ago, H both the above mentioned cases were decided in favonr of Dilbagh Singh.\n\nSo, yesterday the 26th November, 1968 at about 4 P.M., Dilbagh Singh along with his brother Gurbachan Singh, having taken myself (Baj Singh) and both of my brothers Sulakhan Singh and Sohan Singh with him, ploughed this land.\"\n\nA On a consic!cration of the admissions of the prosecution witnesses a_nd the findings arrived at by the High Court, the following propositions of fact emerge:\n\n( 1) That although the accused had purchased the equity of redemption, yet there is no reliable evidcJ1.ce to show that they had paid off the mortgage debt and taken possession from the mortgagee in spite of the fact that mutation was sanctionccl in favour of the appellants in 1967.\n\nThe High Court has rightly pointed out that if the appellants party had taken possession as far back as in 1967 there would be no occasion for them to file a civil suit for possession on October 4, 1967 against the mortgagee, Dilbagh Singh and others;\n\n(2) That on October 27, 1968 the appellants undoubtedly entered the field and took forcible possession of the land from the complainants who were unable to resist the entry of the accused as a result of which Dilbagh Singh filed a complaint on Oct.ober 30, 1968. It is not necessary for us to say anything regan.!ing the allegation about demolishing of the Kothas;\n\n( 3) The complainant knew fully well that he had been dispossessed by the appellants at least a month before the occurrence and that the appellants hacl sown wheat crop and in spite of his knowledge he deliberately went there with the avowed object of taking forcible possession from the appdlants;\n\n( 4) That on the date of ocel!rrence the prosecution party undoubtedly went to the field armed with the gun and axe. It would appear from the injuries on Bahar Slngh F ancl Mohan Singh on the side of the accused that the present occurrence took place as a result of mutual fight over the land; and\n\n( 5) that although the defence has proved beyond reasonable doubt that both Mohan Singh and Bahar Singh had re<; eived injuries on their person, the prosecution has given no explanation for the same.\n\nThe question that arises for consideration is whether in view of these findings of fact it can be said that the accused had no right of private defence or that the prosecution party in entering upon the land was protected by the right of private. defence of property.\n\nThis brings us to the consideration of the decision of this Court-Munshi Ram and Others v.\n\nDelhi Administration(') on H which great reliance has been placed by the High Court,· where this Court obscrvod as follows:\n\n\"It is true that no one including the true owner ha~ a right to dispossess the trespasser by force if the trespasser ----·------------ (I) [1968! 2 s:c.R. 455.\n\nPURAN.SINGll v. PUNJAB (Fazil Ali, .T.)\n\nis in settled possession of the land and in such a case unlesi he is evicted in due co11rse of law, he is entitlecl to defend his possession even against the rightful owner.\n\nBut strai: or even intermittent acts of trespass do not give uch a nght against the true owner.\n\nThe possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner.\n\nA casual act of possession woulcl not have .the effect of interrupting the possession of the rightful ownr. The rightful owner may re-enter and reinstate himself provided he docs not use more force than necessary.\n\nSuch entry will be viewed only as a resistance to an intrusion upon possession which has never been lost.\n\nThe persons in possession by a stray act. of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using nece>sary force.\"\n\nIn this case there was a concurrent finding of fact that Jamuna was in effective possession of the field on the date of occurrence and the prosecution hac! alleged that P.Ws 17 and 19 had taken possession of the property but the finding of the Court was that P.Ws 17 and 19 had not been put in possession by virtue of the delivery of possession given by the Court. lt was against this context that the observations referred to above were made.\n\nThis Court clearly pointed out that where a trespasser was in settled possession of the land he is not entitled to be evicted except in due course of law anc! be is further entitled to resist or defend his possession even against the rightful owner who tries to dispossess him.\n\nThe only condition laid down by this Court was that the possession of the trespasser must be settled possession. The Court explained that the settled possession must be extended over a sufficiently Jong period anc! acquiesced in by the true owner.\n\nThis particular expression has persuacled the High . Court to hold that since the possession of the appellants party in this case was only a month old, it cannot be deemed to be a settled possession.\n\nWe, however, think that this is not what this Court meant in defining the nature of the settled possession. -It is indeed difficult to Jay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession.\n\nBllt what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment.\n\nFor instance a stray or a casual act of possession would not amount to settled possession.\n\nThere is no special charm or magic in the word 'settled possession' nor is it a ritualistic formula which can be con fined in a strait jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to cle!end his property against attack even by the true owner. Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession.\n\nThus in our. opinion the nature of possession in such cases which ma~ entitle a trespasser\n\nA to exercise the right of private defence of property and person\n\nshould contain the following attributes: ,\n\n(i) . that the trespasser must be in actual physical possession of property over a sufficiently long period; .\n\n(ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an clement of animus prossendie. The nature of possession of the trespasser would however be a matter to be decic!ed on facts and circumstances of each case ;\n\n(iii) the process of dispossession of the true owner by the trespasser must be complete and final ancl must be acquiesced iu by the true owner; and\n\n(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken p0ssession, had grown any crop. If the crop had been grown .by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence ancl the true owner will have nci right of .private defence ..\n\nThese principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram's case (supra).\n\nIn the case of Horam and others v. Rex(') which was relied upon by this Court in Munshi Ram's case (supra) a Division Bench of the Allahabad High Court observed as follows:\n\n\"Where a trespasser enters upon the land of another, the person in whom the right of posse; sion is vestecl,. while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force and if in doing so he inflicts such injuries on the trespasser as are warranted. by the situation, he commits no offence.\n\nHis action would be covered by the principle of self-defence embodied in Ss. 96 to 105, Penal Code.\n\nIf, on the other hand, the trespasser hacl already accomplished or completed his possession and the person with the right of possession has acquiesced in this accomplishment, it is not open to the latter to avail himself of the doctrine of self-defence and by inflicting injuries on the trespasser to re-acquire possession of his land.\" It may be noted that in this case the accused hacl remained in possession for ten days and had sown the field and this was held to be sufficient possession to enable the trespasser to resist the entry of the true owner.\n\nIn fact this case appears to be on all fours .with\n\n(')_A.l.R. 1949 All. 564,567.\n\n0 PURAN SINGH v. PUl<JAB (Fazal Ali, J.) 309\n\nthe factFot the present case where also the appellants party after A having taken possession of the land in dispute a montli before the occurrence had grown wheat crop on it ano the complainant party tried to re-enter the land 'and destroy the crop grown by the accused. '\n\nAnoth'e~ decision to which reference. has been made by this Court B in Munshi Ram's case (supra) is Sangappa and others v. State('),\n\nwhere a Division Bench of the Hyderabad High Court observeo as follows:\n\n \"If somebody enters on his land d4ring his absence 'and. he does not acquiesce in the trespass, he would still retain possession of the land and as the possessor of the land, he c is entitleo to that pssession ..... , .............................. .\n\nIf a person aquie~¢es in his dispossession and $ubsequcnt!y under caim of title comes agaill to dispossess h_is opponents then he aitd his friends would be members of un!aiV:ful assembly:\" · ·\n\n.This case also fully covers th~ facts of the present case which falls' under the seconp category laid down by the ourt. . _.,• ' ) . · A similar view was taken in In .re. Mooka Nadar and others (2), where H6rwill, J., observed as follows :\n\n\"It seems to be true that the party of P.W.2 were on E the field first on the morning on which this offence happened; but that does not n'Ccessarily mean that they were then in possesion of the field.\n\nA person doe~ not lose possession of the field by going home to have a meal; or to sleep. If somebody enters on his land <luting his absence and he c!oes 'not acquiesce in the trespass, he would F still retaih possession of the land; and as the possessor of the !and he is entitled to defend that possession ............. ..\n\nIf a person acquiesces in his dispossession and subsequently under claim of title comes again to dispossess his opponents, then he and his frienos would. be members of an unlawful assembly and guilty of rioting.\"\n\nThese were the cases referred to in the judgment of this Court in Munshi Ram's case (supra) and it would appear frpm all these cases that the case of the appellants is fully covered by these decisions.\n\nApart from that in the case of Hazara Singh and other~ v. The Sta(e(') it was held that the accused was protected by the nght of 11.nvate\n\n<!fence having cultivated and sown Bajra in the field.\n\nIn this connection, Chopra, J., observed as follows: .\n\n\"When once Resbam Singh had taken possession . of, cultivated and sown bajra in the field and bad remamed\n\n(1) I.L.R. (1955) Hyd. 406.\n\n(2) A.LR. (1943) Mad. 590.\n\n(3) AJ.R. (1959) Funja b 570.\n\nin possession of it for a couple of months, Hazara Singh even though hi: was the owner was not entitled to take the law into his own hands and use force in ousting the trespasser. He had ample time to have recourse to the protection of public authorities.\n\nHe was himself liable\" for committing criminal trespass and mischief by taking forcible possession of the land and uprooting the crop and would not therefore be entitled to the right of private defence of property.\"\n\nThe learned Judge relied on two judgments one of the AllahabaC: High Court in Bhariu v. State(') and the other of Lahore High Court in Phu la Singh v. Emperor(').\n\nIn view of these decisions it is, therefore, manifest that the finding of the High Court on the facts of the present case that the appellants were not in settled possession of the land is legally erroneous and cannot be allowed to stand.\n\nThe ratio of the juc!gment of this Court in Munshi Ram's case (supra) has not been correctly D applied by the High Court.\n\nThe second point that falls for determination is as to what is the extent of right of private defence which the accused can claim in this case? In this connection, the High Court has given a finding that since the prosecution party had entered the land\" in possession of the aceuseo and were trying to plough it, the appellants should \"E have taken recourse to the public authorities instead of indulging in free fight with the prosecution~ In other words, the High Court fotmd that the right of private defence available to the accused was under .the limitations provided for in Ss. 99 to 102 of the Indian Penal Code and these limitations apply to the facts of the present case, ano the accused cannot claim any right of private defence.\n\nF\" With respect we find ourselves unable to agree with this somewhat broad statement of the Jaw. It is true that the right of private defence of person or property is to be exercised under the following limitations:\n\n0) that if there is sufficient time for recourse to the public authorities the right is not available;\n\n(ii) that more harm than necessary should not be caused;\n\n(iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned. ·\n\nThe fast limitation obviously does not apply to this ca5e.\n\nIn the first place the accused after having dispossessed the complainant to his knowledoc were in conscious and peaceful possession of the land and had grown wheat crop therein.\n\nThe complainant had already filed a complaint and thereafter it was not\" open ' to the\n\n(!) A.I.R 1954 All. 35= 1954 Cr. L.J\" 54\"\n\n(2) kLR. 1927 Lah. 705=28 Cl'\" L.J. 848\"\n\n!'URAN SINGH v. PUNJAB (Fazal Ali, J.)\n\ncomplainant to take the Jaw in his own hands and to try to disposses the accused by show of force. That the complainant had entered the land in question along with other persons variously armed with gandasis and a gun cannot be disputed, because this is the finding of the Court which is supported by the injuries on the person ot Mohan Singh and Bohar Singh for . which the prosecution has given no explanation whatsoever.\n\nIt is not the Jaw that a person when callee! upon to face an assault must run away to the police station and not protect himself or when his property has been the subject-matter of trespass and mischief he shou(d allow the aggressor to take possession of the property while he should run to the public authorities.\n\nWhere there is an attrib1c1te of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary.\n\nThe right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous huh to the victim, coulcl extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised.\n\nA mere reasonable apprehension is enough to put the right of private defence into operation. We are fortified in this view by the decision of this Court in Jai Dev v. The State of Punjab (1) where this Court observed as follows:\n\n\"This, however, does not mean that a person sudi'enly called upon to face an assault must run away and thus protect himself.\n\nHe is entitled to resist the attack and defend himself.\n\nThe same is the position if he has to meet an attack Ofl his property.\n\nIn other words, where an individual citizen or his property is faced with a i'anger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his properly ................. .\n\nThere can be no doubt that in. judging the conduct of a person who proves that he hacl a right of private defence, allowance has necessarily to be made for his feelings at the relevant time.\n\nHe is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confu- G sion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right.\"\n\nIn this very case, while adverting to the question as to whether the force used should not be more than what is necessary, the Court H observed:\n\n\"But in dealing with the question as to whether more force is used than is necessary or than was justified by the\n\n(1) [19631 3 $.C.R. 489,\n\n10 SC/75-21\n\nA prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural m a court room, for instance, Jong after the incident has taken place.\n\nThat is why in some judicial decisions it has been observed that the means which a threatened person adopts of the force which he uses should not be weighed in golden B scales.\"\n\nTo the same effect is the decision of this Court in A /l/jad Khan\n\nv. The State(') where it was observed :\n\n\"It was impossible for him to know whether his shop would or would not suffer the same fate if he waited, and on the findings it was reasonable for him to apprehend death or grievous hurt to himself and his family once they broke in, for he would then have had the right to protest and indeed would have been bound to do what he could to protect his family.\n\nThe threat to break in was implicit in the conduct of the mob and with it the threat to kill or cause grievous hurt to the inmates; .................. The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death.\n\nThese things cannot be weighed in too fine a set of scales or, as some learned Judges have expressed it, in golden scales.\"\n\nThus the question whether the appellants used more force than was necessary would determine on the facts and circumstances of this case.\n\nWe are satisfied that in the present case it cannot be said that the appellants, although two persons have lost their lives, had exceeded the right of their private defence.\n\nTo begin with the appellants were undoubtedly in possession of the land and had grown wheat crop and that the prosecution party had tried to destroy the wheat crop.\n\nThe appelJants were, therefore, entitled to resist the invasion to their right by the prosecution party.\n\nThe High Court has also found that the probabilities are that the prosecution party were also armed with gun and Gandasis.\n\nMohan Singh one of the persons on the side of the accused had received a gun-shot injury which has been proved by the Injury Report (Ext. D.D.) which shows that Mohan Singh received as many as four injuries one of them under the right eye.\n\nSimilarly the accused Bohar Singh who was examined by P.W. 5 Dr. Pritpal Singh, had two injuries which according to the Doctor were gun-shot injuries having been caused by a gun.\n\nThis Doctor also says that after examining the injuries of Mohan Singh he was of the opinion that they were also gun-shot injuries.\n\nThe Sub-Inspector of Police also found pellets at the place of occurrence which confirms the fact that the complainant must have fired from his gun.\n\nThe High Court has also pointed out that the complainant Dilbagh Singh was prosecuted for having been in possession of an unlicensed gun and has since been absconding.\n\nThese facts, therefore, clearly establish that the prosecution party was undoubtedly armed with lethal weapons and that a gun was also\n\n(i) [1952] S.C.R. 567.\n\nPURAN SINGH v. PUNJAB (Fazal Ali, J.) 313\n\niired.\n\nThe High Court has also found that the prosecution party A was the aggressor in the sense that they were bent upon destroying the crop of the appellants ancl taking back possession of the land forcibly.\n\nThis is also supported by the fact that the injuries on the person of the accused have not been explained by the prosecution and in fact Mohan Singh was deliberately kept back from being made an accused so that the prosecution may be absolved from the B <luty !O explain the injuries on him.\n\nIn State of Gujarat v. Sai Fatima & Anr.( 1) one of us (Untwalia, J.,) speaking for the Court, observed as follows:\n\n\"In a situation like this when the prosecution fails to explain the injuries on the person of an. accused, depending on the facts of each case, any of the three results may follows:\n\n(I) That the accused had inflicted the injuries on the\n\nmembers of tl, le prosecution party in exercise of the D right of self defence.\n\n(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable c!oubt.\n\n(3) It does not affect the prosecution case at all.\"\n\nThe facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment.\n\nIn the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private F <lefence or that if the prosecution c!oes not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.\n\nIt was, however, contended by counsel appearing for the State that on the allegations made by the prosecution the accusecl had mercilessly assaulted the prosecution party including the Sulakhan\n\nSingh and Baj Singh and, therefore, even if they had the right of private defence they had exceeded the same.\n\nWe are, however, unable to accept this contention.\n\nIn the first place as the prosecution has deliberately suppressed the very material part of the origin of occurrence, we co not know as to how the occurrence started.\n\nSecondly when two persons on the side of the accused were injured by gun-fire it was not possible for the appellants to _weigh their blows in golden scales in order to assault the proserntion party._ As\n\n- held by us this was a case where the appellants were fully entitled to the exercise of the right of self defence of their property and\n\n; .-'\n\n(I)\n\n[19751 3 S.C.R. 993.\"\"' ,·\n\nA person both because their persons had been attacked ancl their property had been trespassed upon and damaged. It is manifest that after the two persons on the side of the accused received gun-shot injuries as found by the High Court ancl by us, the accused party would have undoubtedly a reasonable apprehension that either death or grievous hurt could be caused to the appellants or one of them.\n\nB. This being the position they were fully justified in causing the death of the deceased persons in the exercise of their right of private defence of person.\n\nSuch an apprehension coulcl not be said to be hypersensitive or based on no ground and it will be idle to contend that the accused should have waited until one of their party members would have died or received serious injuries before acting on the spurt of moment, nor can one expect a person who is attackecl by C an aggressor to modulate his blows in accordance with the injuries he receives. In these circumstances, therefore, it cannot be said that the accused had in any event exceeded their right of private defence. If the prosecution did not come ont with the true version of the nature and . origin of the occurrence, they cannot blame the Court if the critire version presented by them is rejectecl, as held D in the recent judgment of this Conrt in State of Gujarat v. Sai Fatima & Anr.( 1) For these reasons, therefore, we arc clearly of the opinion that the accnsed are protected by the right of pcivatc defence of their property and person and the prosecution case against the appellants must fail.\n\nIn any event, the prosecution case has not been proved beyond reasonable doubt.\n\nE The appeal is, therefore, allowed, the conviction of and the sentences passecl on the appellants are set aside and the appellants are directed to be set at liberty forthwith.\n\nP.B.R.\n\nAppeal allowed ..\n\n\n• •\n\n.. ..", "total_entities": 24, "entities": [{"text": "PURAN SINGH & ORS", "label": "PETITIONER", "start_char": 11, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "PURAN SINGH & ORS", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 31, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "N. L. UNTWALIA", "label": "JUDGE", "start_char": 66, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 85, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "S. 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{"document_id": "1975_1_30_43_EN", "year": 1975, "text": "BHAGWAN DASS JAGDISH CHANDER\n\nDELHI.ADYIJNISTRATION\n\nMarch 25, 1975\n\n[M. H. BEG, A. ALAGIRISWAMI AN.D N. L. UNTWALIA, JJ.J\n\nPrevention of Food Adulteration Act, 1954-Ss. 7, 16 and 19(2)-Joint trial of 1_e.11dor a11d distributor of food article-If legal-S. 20A-Scope of.\n\nThe appellant, a firm of ghee merchants, through its partner as A2 w; is charged with having sold ghee to Al (the vendor of ghee). A san1ple of that gheC: purchscd_ by the Food Inspector was found (on analysis) to be adulterated. The two accused were prosecuted jointly under ss. 7 and 16 of the Prevention or Food Adulteration Act, 1954. .\n\nAt the trial, the vendor prayed for the discharge or acquittal of the warrantor so that he might examine the v.rarrantor as his defence \\vitness 'to prove his own purchase of the article under a warranty. The trying magistrate acquitted the partner of the appellant.\n\nThe vendor was also acquitted on the ground that he was protected by a warranty covered bys. 19(2) of the Act. -\n\nOn appeal, the High Court, while maintaining acquittal of A-1, set aside the acquittal of the appellant (A-2).\n\nOn the! question \\Vhethcr the charge should be quashed because two accused were set up for trial jointly.\n\nHELD : The High Court was right in holding that the joint trial of the ·<.!ppellant with the vendor was not illegal.\n\n[42A]\n\n(l)(a) Jn a suitable case, a vendor, a distributor, and a manufacturer could be tried together provided the allegations made before the Court show that there \\Vere connecting links between their .activities so as to constitute the same transaction.\n\nThe connecting links, in a case could be provided by (i) the fact that a sale at an anterior stage could be viewed as the cause of the subsequent sale; (ii) the allegation that each of the accused parted with the article of food when it was in an . adulterated state and (iii) the common object of the manufacturer, the distributor and the vendor was that the article\n\nst.ould reach the consumer to be used as food. The third and last link is decisive and must tilt the balance in favour of legality of a joint trial of the parties concerned.\n\n.[41~C-DJ\n\n(b) A rnens rea as a particular state of mind which could be described as guilty or wrongful 'vas not needed, and, therefore, could not provide the connecting link between the co-accused in a trial for such an offence in order to constitute the same transaction.\n\n[39D]\n\nSarjoo 'Prasad v. The State of Uttnr Pradesh, A.LR. 1961 S.C. 631, referred to.\n\n(c) Where jOinder of several accused persons concerned dealing in different \\Vays with the same adulterated article of food at different stages is likely to jeopardise -a fair trial, a separate trial ought to be ordered. It is not proper to acquire or discharge an accused person on this ground alone.\n\nThe order of separate trial in a case where preJudice to an accused from a joint trial is apprehended is enough.\n\nA joint trial of such accused persons is not nb' initio illegal. [40A]\n\nJt. N. Knn1dar & Anr. v. Municipal Corporation of Delhi [19741 lS.C.R. 157 Ill' 161 and Kadiri Kunhammad v. The State of Madras.\n\nA.I.R. 1960, S.C. 661 @663, followed.\n\n(2) Neither S. 7 nor S. 14 of the Act bars trial of several offences by .A the same accused person, be he a manufacturer, a distributor or a last seller referred to as \"the vendor\" in S. 14 of the Act. . The definition• <.)f \"sale\" in sub-s. (xiii) of the Act. is wide enough to include every kind of .sefler. Every seller can be prosecuted for an offence created by s. 7 of the Act.\n\nThe mere fact that, for purposes of S .. 14, the .perron who could be the last seller is described as \"the vendor'', could not affect a liabili_ty. fo~ an offence under s. :; _of the Act_ by a sale of an.ar.ticle oT food ...;· 'vhich is found to be adulterated.\n\nA sale of an rticle of .food by a D umanufacturer, distri!tOr, or dealer\" is , a distinct and separable offence.\n\nSection 14 was not ant to carve out an exemption in favour of a <listri butor o:r a manufact r who sells articles of food; found to be adulterated, irrespective of the qqesiion whether any warranty was given for them. [36CF1\n\n(3)(a) The special provisions contained in Ss. 19(2) and 20A do not take away or derogae from the effect of the otdinary provisions of the Ja\\V \\Vhich enable separate as well as joint trials of accused persons in accordance\n\n. C with the provisions of the old Ss. 233 to 239, Cr. P. C.\n\nOn the other hand, there is no logically sound rCason why, if a distributor or a manufacturer can be subsequently in1pleaded i.1nder s. 20A of the Act, he cannot be joined as a CO:accused initially in a joint trial if the allegations made iustify s.uch .a course. [37B] ·· \"\n\n(b) The special provisions of S. 20A are only enabling and do-_ not give rise to a mandatory duty. They do not bar either a separate or a joint trial of an accused person if other conditions are satisfied.\n\nSimilarly S. 239(d), Cr. P.C. is only an enabling section. f41B]\n\nIn the instant case although the charge stated that the ghee sold by the vendor was found to be adulterated, it is not stated that it was in that very state when the appellant sold it to the vendor. It is left to be inferred from the charge that the appellant also sold the ghee in an adulterated state. It is true that defects in the charge V.-'ou]d not invalidate a trial.\n\nEven so, continuation of such an old prosecution is likely to handicap the appellant in his defence. Assuining that the charge. implied an allegation that ghee was adulterated v.-hen the appellant sold it to the vendor an enquiry _in 1975 into the actual state of the ghee sold by the distributor in 1967 would be obviously difficult.\n\nIt would impose undue hardship on the distributor to prove at this distance of time, the actual state of the small quantity of ghee analysed.\n\n[41G~HJ\n\nAlagiri.(wami, J. (concurring in the final result)\n\nThe High Court was not correct in saying that the action of both the accused formed part of the same transaction and there was unity of purpose of the manufacturer, the distributor and the vendor furnished by the purpose of all of them to sell, and, therefore, it was the same transaction and all of them could be tried together.\n\n[43E]\n\n(1) If the common purpose of all. of them was to sell ghee, joint trial G 0f all of them would not be valid; but, if it was to sell adulterated ghce it would be valid.\n\nIf it is aileged that at every one of the sta_ges $lice was\n\nd.ulterate? then it Wollld be the same transaction and they could all be 101ntly tned. In the absence of an aJlegation that the ghee di_stributed by the appe1lant to the vendor was adulterated both of them could not be tried together.\n\n[43G]\n\n. (2) At he stag~ of considering the validity of the charge, ifis the alle .•H\n\nat1on that is. matenal ; at the stage of considering the grult Of the parties it is proof that ts material. [ 43H] '\n\n.i In the instant case, although the charge :::tates that_ the ght:; e_ purchased tfrom the vendor was found tp be adulterated, there was _no_ alleg'ation thiit\n\nUbe .ghee. SC!ld by the . appellant t? the vendor was adulterated. While the common obJect \\Vas o sen the article of food sold, it is not said that it was to sell adulterated article of food.-\n\n[42E] ·\n\n(3) It is now well settled that for establishing an offence under the Act it is not necessary to establish mens rea i.e., criminal intention either on the part of the manufacturer or distributor or vendor.\n\nEven knowledge on th'e\n\npart of all of them that the food was adulterated is not necessary. Ignorance f. on the part of any one of them that the food was adulterated wouldl not absolve them of liability.\n\n[42HJ\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 59 and 60 of 1971. •\n\nFrom the judgment and order dated the 28th 0Gtober, 1970 of the Delhi High Court in Criminal Appeals Nos. 8 and 9 of 1969.\n\nE. C. Agarwala, for the appellant (in both the appeals)\n\nB. P. Maheshwari, for respondent no. 2.\n\nThe Judgment of M. H. Beg and N. L. Untwalia, JJ. was delivered by Beg, J. A. Alagiriswami, J. gave a separate Opinion.\n\nBEG, J .-These two criminal appeals, after certification of the cases as fit for decision by this Court, under Article 134(l)(c) of the Constitution, arise out of the prosecution of M/s. Bhagwan Das Jagdish Chander, Ghee Merchants and Commission Agents at Delhi, under Sections 7 /16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). The appellant was prosecuted jointly with Laxmi Narain, the vendor of 450 gms. of ghee to a Food Inspector, on 22-8-1967. On analysis, the sample was found to be adulterated.\n\nLaxmi Narain, a partner of M/s. Laxmi Sweets, Delhi, in defence, successfully relied upon Section 19(2) of the Act and was acquitted.\n\nSection 19, which reads as follows, may be set out here in tozo :\n\n\"19(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, 'substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.\n\n(2) A vendor shall not be deemed to have committed an offer.cc pertaining to the sale of any adulterated or misbranded article of food if he proves-\n\n( a) that be purchased the article of foo, d-\n\n(i) in a case where a licence is prescribed for the sale thereof, from a nuly licensed manufacturer, distributor or dealer;\n\n(ii) in any other case, from any manufacturer, distributor or dealer,\n\n(b)\n\nwith a written warranty in the prescribed torm; and\n\nthat the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it ..\n\n. , l.\n\n(3) Any, person by whom a warranty as is referred to m A Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence\"·.\n\nSection 14 of the Act, to which reference was made in Secl!on 19(3), says:\n\n\"S. 14. No manufacturer, distributor or dealer of any article B of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed !or.m about the nature and quality of such article to the vendor.\n\nExplanation.-In this section, in sub-section (2) of Section 19 and in Section 20A, the expression \"distributor\" shall include C a comn1ission agent''.\n\nIn the course of the trial, Laxmi Narain filed an appl!cat10n praying that the warrantor may be discharged or acquitted so that Laxm1 Narain may examme the warrantor as his defence witness to prove his own purchase ot the offending article under a warranty. It may be D mentioned that, as the complaint describes the warrantor accused as \"M/s. Bhagwan Das J agdish Chander through an authorised person\",\n\nappearance was put in by Jagdish Chander, a partner, as the accused person responsible on behalf of the tirm.\n\nThe trying Magistrate allowed the application of Laxmi N aram and acquitted Jagdish Chander on the ground that Laxmi Narain E would be deprived of a valuable defence unless this was done and relied upon V. N. Chokra v. The State(') in support of this action.\n\nOf course, an accused person has a right to appear in defence under Section 342A of the Code of Criminal Procedure; and, Laxmi Narain, taking advantage of this provision, did depose in his own defence.\n\nBut, it seems that it was urged on behalf of Laxmi Narain that Jagdish F Chander could not be compelled to appear as a defence witness until he had been discharged or acquitted.\n\nThe Magistrate accepted this ground as good enough for the acquittal of Jagdish Chander. After the evidence of Jagdish Chander and Laxmi Narain, as defence witnesses, the trying Magistrate acquitted Laxmi Narain also on the ground that Laxmi Narain was protected by a warranty covered by Secti?n 1,9(2) of the Act.\n\nThus, both the accused persons were acqmtted.\n\nAfter their acquittal, the Magistrate impleaded the manutacturers M/s .. Gann Shanker Prem Narain, under section 20A of the Act. Thi; prov!Slon reads as follows :\n\n\"20A.\n\nWhere at any time during the trial ot any offence H under this Act alleged to have been committed by any perso not bemg the manufacturer, distributor or dealer of any articf~ of food, the Court 1s satisfied, on the evidence adduced b f it, that such manufacturer, distributor or dealer is also conc:r~:~\n\n(1) AIR 1966 Punja]{ 421..\n\nSUPREME GOuRT REP, ORTS\n\n[\"1975] SUPP. S.C; R.\n\nwith that offen.ce, then, the Cort may, notwithsianding anythipg\n\ncontained in subcsection (1) of Section 351 of the Code of Criminal Procedure; 1B98, or in Section 20 proceed against him as though a prosecution had been instituted against him under section 20\". ·\n\nAlthough, we .are not concerned in the appeals before us with the prosecution of the manufacturer, M/s. Gauri Shanker Prem Narain, yet, we find that one of the questions framed for consideration and decided by the Delhi High Court relates to the meaning and scope of Section 20A of the Act. We may mention that a statement has been made at the Bar that the manufacturer has also been acquitted.\n\nWe do not know whether this acquittal was on the grourid that the manufacturer cannot be impleaded under section 20A of the Act after the trial is concluded by the acquittal of the two accused.\n\nIt is clear that Section 20A contemplates action which can only be taken during the course of the trial. A separate trial would require a \"written consent of the Central Government or the State Government or a local authority or of a person authorised in this behalf by general or special order by the .Central Government or the State Government or a local authority\", unless it is a complaint by a purchaser, other than a Food Inspector, who could rely upon Section 12 of the Act.\n\nBut, an addition of an accused under section 20A of the Act constitutes an expressly laid down exception to the requirement of a sanction under section 20 (!) of the Act.\n\n In. the case before us, the prosecutor, the Munkipal Corporation of Delhi, appealed against the acquittals of Laxmi Na rain and Jagdlsh Chander.\n\nIn the Delhi High Court, two questions,· arising in the case before us and in other similar cases, were framed and referred for decision by a Full Bench as follows :\n\n\"(i) Whether a joint trial of the vendor, the distributor and the manufacturerer for offences under the Prevention of Food Adulteration Act, 1954 is illegal? and\n\n(ii). What is. the scope of.Section 20A of th~ said Act?\"\n\nG On the !st question, the Full Bench held : that, the. general pro' cedure for joint trials, found in Sections 234 to 239 of the Criminal Procedure Code, applies to prosecutions under the Act which contains no other or special procedure for joinder of charges or of accused persons in the same trial; that, the joint trial of the vendor Laxmi Narain with the warrantor Jagdish Chander was. permissible as the actions of both these accused form parts M the same transaction, as H e 1 xplainGed by this, CRourt&inAthc (f)tatethoft Athn_dhra Pradesh v._ Cf heembaapati aneswara ao nr. ; a , 1s view was rem orce y the consideration that mens. rea. was not an essential element for offences under the Act, and the High Court relied on the pronouncement of this Court iri Andhra Pradesh Grain and Seeds Merchants Assoc.iation v. Union of India(') for this proposition; that, proof\n\n(I) [1964] 3 SCR 297.\n\n12) [19701 (2) S.O.C: 71.\n\nof a guilty mind is not necessary in statutes creating absolute liability for offences against public health and public welfare; that, there was a \"unity of purpose\" between the manufacturer and distributor and vendor of the adulterated article of food sold furnished by the purpose of all of them to sell; that, au indication of a \"unity of puqi_qse\", which is less stringent than either a \"corr1mon object\" or a Hco1nmon intentionn,\n\nwas sufficient to establish the sameness of a transaction for the pnr- B poses of Section 239 of the Criminal Procedure Code; that, although the joinder of the vendor or manufacturer in a single trial was legally .valid under section 239 of the Criminal Procedure Code, it did not appear to be incumbent upou the Court to hold such a joint trial where such joinder may jeopardise the interests of justice; that, Section 19 of the Act, as it stands, does not require that the warrantor should be separately prosecuted only after the vendor had Successfully estab- C lisbed that he could rely upon a warranty covered by Section 19(2) of the Act; that, as both the vendor and his warrantor could. get an adequate opportunity to prove their cases in a trial for sale or an adulterated article under the Act, no. right of ari accused person, either in law or justice, was jeopardised by such a joint trial; that, in any event, a person accused of such an offence under the Act \"can D always insist that a co-accused should be discharged or acquitte-d on the ground that be wants to examine him as a witness\"; that, Section 19 ( 3) of the Act confers a right upon the vendor and not upon the warrantor; that, no interests of an accused person were prejudicially affected in the case before us by a joint trial of the vendor and the distributor. E . , As regards Section.20A ot the Act., the FuH Bench held: that, tb, is prbVlsion, which is an 'Exceptiort to Section 351\"(1) of the Criminal\n\nProcedure Code, \"can be invoked after the trial of the vendor has commenced and before it has concluded and not after that\"; and that, Section 20A of the Act is not controlled by Section 239 of the Criminal Procedure Code but is a self contained provision so that F \"the person concerned in the offence\",_ mentioned therein, is not to be equated with \"a person who has committed the same offence\" mentioned in Section 239 of the Criminal Procedure Code. '\n\nThe High Court, whil~ maintaining the aquittal of Laxmi Narain\" set aside the. acquittal of the appellant M/s. Bhagwan Das Jagdish Chander. It is not clear to us why two appeals to this Court became G necessary as the appellant does not question the correctness of the acqmttal of Laxm1 N aram. Separate Counsel have, however, appeared aqd 11rgued the case for the appellant firm and its partner Jagdish Chander. We propo~ to deal with t.he case as one only and assume that bot~ the firm and its. partner Jag<\\1sh Chander question the validity of the tnal on. a complamt where the only .allegation against the appellant firm, arraigued as an accused through 1ts partner, was that it was a H ct1stnbutor. of the .. apulterated ghee sold., The charg\" framed, against the appellant was :' ·\n\n\"That, on or about the 22nd day of Aug. 1967 at 12 'rioo~; sample of ghee was P1;1r'chase.d by Sh: V. P. Aiiand F:I. frnm accused No. I Lakshmi Naram and the said ghee was sold by .\n\nyou to accused No. I Laxmi Narain on 21-8-67 and the said sample of ghee on analysis was foun!d to be adulterated and hereby committed an offence punishable under sections 7 /16 of the Prevention of Food A_dulteration Act of 1954 and within my cognizance\".\n\nThe material question before us, shorn of subtlety and bereft ot verbiage, could be said to be: Should this charge be quashed, after holding that the prosecution of the appellant, which was duly sanctioned by the competent authority, was invalid merely because, initially, the appellant was sent up for trial jointly with Laxmi Narain, or, alternatively, should we quash it on any other ground?\n\nWe are not impressed by the argument that a distributor could only be prosecuted for selling without giving a warranty to a vendor which is a separate offence under section 14 of the Act. It is clear from Section 14 itself that a manufacturer as well as a distributor can sell. The definition of \"Sale\", given in sub s. (xiii) of the Act, is wide• enough to include every kind of se!Jer. Every se!Jer can be prosecuted of an offence created by Section 7 of the Act which prohibits a sale as well as distribution of an adulterated article of food.\n\nThe mere fact that, for the purposes of Section 14, the person who could be the last se!Jer, in the sense that he sells to the actual consumer, is described as\n\n\"the vendor\", could not affect a liability for an offence under section 7 of the Act by a sale of an article of food which is found to be adulterated. A sale of an article of food by a \"manufacturer, distributor, or dealer\" is a distinct and separable offence. Section 14 was not meant to carve out an exemption in favour of a distributor or a manufacturer who sells articles of food, found to be adulterated, irrespective of the question whether any warranty was given for them.\n\nIt is true that the manufacture of an adulterated arti- .clc of food for sale is also an offence under section 7 of the Act. But, neither Section 7 nor Section 14 of the Act bars trial of several offences by the same accused person, be he a manufacturer, a distributor, or a last seller, referred to as \"the vendor\" in Section 14 of the Act.\n\nWe are also unable to accept as correct a line of reasoning found in V. N. Chokra v. The State (supra) and Food Inspector, l'alghal\n\nMunicipality v. Setharam Rice & Oil Mills('), and in J'. B. Kurup\n\nv. Food Inspector, Malappuram l'anchayat('), that, in every case G under the Act, there has to be initially a prosecution of a particular seller only, but those who may have passed on or sold the adulterated article of food to the vendor, who is being prosecuted, could only be brought in subsequently after a warranty set up under section 19(2) has been pleaded and shown to be substantiated. Support was sought for such a view by referring to the special provisions of Section 20A and Section 19(2) and Section 20 of the Act. A reason for Sec. 20A seems H to be that the prosecution of a person implcaded as an accused under Section 20A in the course of a trial does not require a separate sanction Section 20A itself lays down that, where the Court trying the offence is itself satisfied that a \"manufacturer, distributor, or dealer is also\n\n(1) 1974 F. A.C. p. 534(Crl. Appeal Nos. 222, 223, 225 to 227173 etc. etc. decided on 3-7-74).\n\n(2) 1969 Kerala Law Times p. 845.\n\nA concerned with an offence\", for which an accused is being tried, the necessary sanction to prosecute will be deemed to have been given.\n\nAnother reason seems to be that such a power enables speedy trial of the really guilty parties. We are in agreement with the view , of the Delhi High Court that these special provisions do not take away or derogate cram the effect of the ordinary provisions of the law which enable separate as well as joint trials of accused persons in accor- B dance with the provisions of the old Sections 233 to 239 of Criminal Procedure Code. On the other hand, there seems no logically sound reason why, if a distributor or a manufacturer can be subsequently impleaded, under Section 20A of the Act, he cannot be joined as a co-accused initially in z joint trial if the allegations made justify such a course ..\n\nThis brings US to the most debated point in the case: Was the sale of ghee on 22-8-67 by the last seller or vendor, Laxmi Narain, so connected with the sale by the accused appellant J agdish Chander to Laxmi Narain on 21-8-67 that, if the ghce was found ad.ulterated in\n\nthe bands of Laxmi Na rain, the appellant Jagdish Chander could be prosecuted jointly with Laxmi Narain as the two sales were part of the D \"same transaction\" within th.e meaning of Section 239(d) of Criminal Procedure Code of 1898 corresponding to Section 223 of the Code of 1973?·\n\nWe do not propose to attempt, in this case, the task of defining exhaustively what constitutes the same transaction within the meaning of Section 239 of Criminal Procedure Code of 1898 corresponding to Section 223 of the Criminal Procedure Code of 1973. It is practically impossible as well as undesirable to attempt such a definition of a concept which has to be necessarily elastic. Moreover, this Court has, in the State of Andhra Pradesh v. Cheemalpati Ganeshwara Rao and Anr. (supra), already expressed its views (at page 321), which we respectfully quote and follow, on this question :\n\n\"What is meant by 'same transaction' is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task\n\nto undertake a definition of that which the Lecrislature \"has delib_erately left undefined .. We have not come acr:\"iss a single deci- G .s10n of any Court which has embarked upon the difficult task of dening te .epresion. But, it is generally thought that where there IS yr?x1m1ty o~ tme or pl.ace or unity of purpose and design or c?ntmmty of act10n m respect of a series of acts, it may be possible to mfer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if seve- H ral acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction\".\n\n. Learned <; Counsel for the appellant, however. relies on the imme- , chately followmg observations (at page 322) : .\n\nA \"The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the . words 'so connected together as to form' in cl. (a), (c) and (d) of S. 239 would make little difference.\n\nNow, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently, they would not form part of the same transaction bnt would constitute a different transaction or transactions.\n\nTherefore, even if the expression 'same transaction' alone had been used ins. 235(1) it would have meant a transaction consisting either of a single act or of a sries of connected acts.\n\nThe expression 'same transaction' occurring in els. (a), (c) and\n\n(d) of s. 239 as well as that occurring ins. 235(1) ought.to be given the meaning aecordirtg to the normal rule of construction of statutes\".\n\n. It .is contended that it would be dangerous to leave the \"umty D of purpose and design\", which may constitute a transaction, so ' vague as to bring in the manufacturer and every conceivable distributor as accused persons whenever any adulterated food, manufactured and sealed by one party and distributed by another, is finally sold by a vendor in the market. The learned Counsel for the appel- !ant contnded that we must, therefore, restrict the concept of a \"transaction\", in a prosecution for sale of an adulterated article 6f E. food, to an alleged criminal participat, ion in the adulteration of the actual article of food sold. It was l!T!led that some vague and general connection or concern of all the co-accused as manufacturers or distributors of the article sold will not do. It had, according to •the contention on behalf of the appellant, to be specifically alleged that the accused was concerned with the adulteration or sale of the parti- F cular article of food sold. Tk argument of the learned Counsel for the appellant seems to us to go so far as to suggest that an allegation was indispensable of a participation in some kind of conspiracy to sell the actual adulterated article of food which was sold in order to enable a trial in which the seller, the distributor, and the manufacturcf could be jointly tried for o!Iences which could be looked npon as parts of a single transaction.\n\nTo accept such an argument G. would be to import into such a case the need to establish a conspiracy between the accused manufacturer or distributor, as the case may be, and the actual vendor or .the last seller to the consumer.\n\nWe think that such a result would be ob.viously incorrect..\n\nIt was pointed out. by this Court, in .Sarjoo Prasad v. The. State of Uttar Pradesh( 1), that mens rea, in the sense of a guilty .knowledge of adulteration of the. food sold, is . not necessary to . prove for an H offence. under sction 7 of the Act. . Indeed, Section 19 ( 1) specifically rules ant such a defence although S. 19(2) makes it available in the particular case of. the accused who has .. taken .the pn; caut10n of protecting himself from what seems otherwise .to be an absolute liability without proof of gmlty knowledge. Even 1.f we were to widen\n\n(') A.TR 1974 SC 2154.\n\nBHAGWAN DASS' v. P}lLHl APMN. (Beg,/,) 3!1\n\nthe concept of \"mens rea\" here to embrace carelessness or indiffer• ence as the required states of mind in the manufacture or distribu~ tiol\\ or sale of an adulterated article of food, as an ingredient of a legally punishable offence, the law obviously and expressly does_ not require parties to an offence under the Act. to have a particular guilty knowledge about the particular item of food found to be adulterated. We cannot introduce such a requirement into a case simply .B because several accused , persons are being jointly tried.\n\nThe law does require proof, for a successful defence, of a degree of care and caution revealed by the actions of the seller, distributor, or manufacturer, which will be enQj, igh to procure an exemption froni criminal liability for a sale of adulterated article of food without knowledge of its actu'al adulteration.\n\nBut, we cannot, for this reason, equate such an offence with one in which the co-accused must necessarily have a common knowledge or design to sell an article actually known to them to be adulterated. In other words, a particular state of mind, which could be described as guilty or wrongful, could not, even if it could 1Joe there individually and separately in a particular case, proviqe the connecting link between the coaccused in a trial for such an offence in order to consfaute the same D transaction.\n\nThe link, if any, has to be found elsewhere.\n\nIn our opinion, considering the character of the offence and the nature of the activities of manufacturers and distributors, who generally deal in bulk, and of the ordinary vendor, who sells particular items to the consumer, the common link, which could provide the E unity of purpose or design so as to weave their separate acts or omissions into one transaction, has to be their common intention that a particular article, found adulterated, should reach the consumer as food.\n\nIgnorance of the fact of adulteration is immaterial. In order to justify a joint trial of accused their common object or intention to sell the article as food is enough. In such a case of a strict !ia- F bility created by statute, for safeguarding public health, the mental connection between the acts and omissions of the manufactu'rer, the distributor, and the last vendor would be provided simply by the common design or intention that an article of food, found to be adulterated, should reach and be used as food by the consumer.\n\nEach person dealing with such an article has to prove that he has shewn du.e .care' .and .caution by. tak.ing prescribed. steps in order to G escape cnmmal !rnbahty. Otherwise, if one may so put it, a mens rea shared_by tem 1s presumed from.a common carelessness exhibited by them. Agam, a sale at an antenor stage by a manufacturer or distributor to a vendor and 1he sale by the vendor to the actual consumer could be viewed as linked with each other as cause and effect.\n\nth We t?ink that the activi!ies of the manufacturer, the distributor and H e retail seller are sufficiently connected, in such a case of sale of an arl!cl.e of food found to be adulterated, . by a unity of purpose\n\n~!!d de~1~, an~, th.erefore,. of a transaction, so as to make their\n\nJOnt trial possible Ill a swtable case.\n\nBut at the same time we th_mk that, where . a joinder of several acnsed persons concrned with dealmg in different_ ways with the same adulterated article of\n\n10 SC/75-4\n\nA food at different stages is likely to jeopardise a fair trial, a separate trial ought to be ordered. It is not proper to acquit or discharge an accused person on this ground alone.\n\nThe ordering of a separate trial, in a case where prejudice to an accused from a joint trial is , apprehended, is enough. Indeed, we can go even further and say that, ordinarily, they ought to be separately tried. But, a joint trial of such B accused persons is not ab-initio illegal. It can take place in suitable cases.\n\nWe may point out that, in V. N. Kamdar & Anr., v. Municipal Corporation of Delhi( 1), this Court held (at p. 161) :\n\n\"The normal rule uuder the Criminal Procedure Code is to try each accused separately when the offence committed by him is distinct and separate. The.provisions of ss. 233 to 239 would indicate that joint trial is the exception. In State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr., [1964) (3) SCR 297, 324) this Court said that separate trial is the normal rule, and joint trial is an exception when\n\nD the accused have committed separate offences. Section 5 (2) of the Criminal Procedure Code provides that the provisions of that Code will apply to trial of an offence under any law\n\nother than the Indian Penal Code subject to any enactment. for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherWise dealing with such offence.\"\n\nIn Kadiri Kunhahammad v. The State of Madras( 2 ) , this Court said (at p. 663) :\n\n\"Section 239(d) authorises a joint trial of persons accused of different offences committed in the course of the same transaction; and there can be n_o doubt that in deciding the question whether or not more persons than one can be tried together uuder the said section, the criminal Court has to consider the nature of the accusation made by the prosecution. It would be unreasonable to suggest that though the accusation made by the prosecution would justify a joint trial of more persons than one, the validity of such a trial could JJ., effectively challenged if the said accusation is not established according to law. It is true that, in framing the charge against more persons than one and directing their joint trial, Courts should carefully examine the nature of the accusation; but if they are satisfied that prima facie the accusauon made shows that several persons are charged of different offences and that the said offences prima facie appear to have been committed in the course of the same transaction, their joint trial can and should be ordered.\"\n\nWe dq not interpret Kadiri Kunhahammad's case (supra) to mean that a joint trial of accused persons is obligatory in every case where : a catenation of facts, said to constitute separate but related or cognate\n\n(l) [19741 (1) S.C.R. 157@ 161.\n\n(2) A.I.R. 1960 SC 661 @663.\n\nBHAGWAN DASS v. DELHI Af>MN.- (Beg,!.) . 41\n\noffences, can be viewed as one transaction. The q, uestion whether there + should be a joint or separate trial in a case should be deterrnilled on .the facts of that case and the requirements of justice there. As pointed\n\nout by this Court in V. N. Kamdar & Anr. v. Municipal Corporation of Delhi (supra) the special provisions of Section 20A are only enabling and do not give rise to a mandatory duty. They do not bar either a separate or a joint trial of an accused person if other condi- B tions are satisfied. Similarly, Section. 239(d) of the Criminal Procer\n\ndure Code of 1898, which is reproduced as Section 223 ( d) of the Criminal Procedure Code of 1973, is only an enabling section. No doubt it has to be shewn that the requirements of Section 239(d} have been fulfilled whenever this provision is sought to be utilised.\n\nThe result is that we think that, in a suitable case, a vendor, a C distributor, and _a manufacturer could be tried together provided the allegations made before the Court show that there are conuecting links between their activities so as to constitute the same transaction. The connecting links, in a case such as the one before us, could be provided by: firstly, the fact that a sale at an anterior stage could be viewed as the cause of the subsequent sale; secondly, the allegation that each D of the accused parted with the article of food when it was in an adulterated state ; and, thirdly, by the common object of the manufacturer the distributor, and the vendor, that the article should reach the consumer to be used as food. The third and last mentioned link seems decisive and must tilt the balance in favour of legality of a joint trial of the parties concerned. But, we are also conscious of the fact that E Courts canuot ignore broader requirements of justice.\n\nIn the case before us, hll that the complaint states is that the appellant firm had sold the offending ghee to the vendor Laxmi Narain a day earlier. The assertion that it was in an adulterated state at that time was wanting in the complaint. Although, the charge framed, set out above, states that the sample of ghee sold by Laxmi F\n\nNarain, to whom it was sold by the appellant, was found in an adulterated state, yet, it is not stated there that it was in that very state when the appellant had sold it to Laxmi Narain. It is true that Laxmi Narain successfully pleaded a . warranty under which he ootained the ghee from the appellant firm. It is left to be inferred from these facts that . the appellant also sold the ghee while it was in an adulterated state. It could be urged that this would follow from the successful de- G fence of Laxmi Narain. The defects in the charge would not invalidate the trial. But, we think that a continuation of such an old prosecution is likely to handicap the accused Jagdish Chander in his defence. Even if we were to assume that the charge, as framed, implies the allegation .that the ghee was adulterated also when the distributor sold it to the vendor, an enquiry in 1975 into the actual state of the ghee sold by the distributor to the vendor in 1967 would be obviously difficult. The U\n\nappellant, content with the initial acquittal, had probably rested on his oars and not taken the trouble to challenge the correctness of the analyst's report. And, even if that report was quite correct it may not establish the state in which the small quantity of ghee analysed was when it. was sold by the distributor. It would impose undue hardship on the distributor to prove, at this distance of time, the actual state\n\nSUPJ.l!!r.i; I! (; OUltT RBl'ORTS . [l9751' suPP. S.C.R.\n\nA of the small quantity of ghee analysed which must have been a part of the consignment supplied by the distributor who is perhaps also relying on the manufacturer's warranty. Although we hold, in agreement with the Pdhi High Court, that tbe joint trial of the appellant with Laxmi Narain was not illegal, we think that, on the special facts of this case, the interests of justice will be better served by quashing B such a stale charge because the appellant's defence will suffer if he JS called upon. to answer it now.\n\nConsequently, we allow these appeals to the extent that we quash the charge against the appellant and rder that he be discharged.\n\nALAGIRISWAMI, J .-I agree with my learned brothers as regards c the final conclusions arrived at and the order propesed., But I think it is necessary to say a few words on the first question which was decided by the Full Bench of the Delhi High Court.\n\nThe question is as follows : ·\n\n\"(i) Whether a joint trial of the vendor, the distributor and the manufacturer for offences under the Prevention of D Food Adulteration Act, 1954 is illegal ?\n\nIt is unnecessary to set 9ut the facts which are found in the judgment of my learned brothers. The Full Bench found that the joint trial of the vendo~ Laxmi Narain with the warrantor J agdish Chander (the appellant before us) was permissible as the actions of ooth these accused form parts of the same transaction, that there w~ a unity o{ purpose between the manufacturer, the distributor and the vendor of .the adulterated articles of food sold furnished by the purpose of all of them to sell, that an indication oJ' a unity of purpose was sufficient .to establish the sameness of a transaction as conlemplated by s. 239 of the Criminal Procedure Code. The charge framed against the appellant is as follows :\n\n\"That you, on or about the 22nd day of August 1967 at 12 noon a sample of ghee was purchased by Shri V. P.\n\nAnand F.I. from accused No. I Lakshmi Narain and the said ghee was sold by you to accused No. 1 Lakshmi Narain on 21-8-1967 and the said sample of ghee in analysis was found to be adulterated and hereby committed an offence punishable under section 7/16 of the Prevention of Food Adulteration Act of 1954 and within my cognizance.\"\n\n1t would be noticed that while the charge states tht the sample of ghee purchased from Lakshmi Narain was found to be adulterated, there is no allegation that the ghee sold by the appellant to Lakshmi Narain was adulterated. While it may be readily conceded that the H common object or common intention or unity of purpose between the manufacturer, the distributor and the vendor was to sell the article of food sold, it is not said that it was to sell the adulterated article of food. It is true that it is now well established that for establishing an offence under the Prevention of Food Adulteration Act it is not necessary to establish mens rea i.e. criminal intention either on the\n\nBHAGWAN DASS v. DELHI ADMN. (Alagiriswami, J.)\n\npan of the manufacturer or distributor or vendor. Even knowledge on the part of all of them that the food was adulterated is not necessary. Ignorance on the part of any one of them that the food was adulterated would not absolve them of liability. But before the manufacturer, the distributor and the vendor could be tried jointly it must\n\n43.\n\nbe alleged that the manufactured food was adulterated when the manufacturer passed it on to the distributor and; it was also adulterated when B the distributor passed it on to the vendor arid that it was adulterated when the vendor sold it to the consumer. It is not necessary to prove that the article of food was adulterated !lt all the three stages for the\n\npurpore of deciding the validity of the charge being framed against all the three of them provided the necessary allegation is there. At that stage the queruon of proof does not come in.\n\nThe validity of the charge hastobe decided on the facts put forward asthe prosecution c case. If it is no~ established against any one of them that the article of food manufactured, distributed or sold by him was adulterated that person Will be acquitted, not because the charge was not valid or was defective but because there was no proof to substantiate the charge.\n\nBut without that allegation there cannot be said to be a unity of purpose or common object or common intention on the part Q of all of. them to manufacture, distribute or sell the adulterated food.\n\nThe manufacture, distribution and sale of adulterated ghee would be\n\ntbe same transaction if it was found to be adulterated at all the three stages. Otherwis.e it only means that they were all sanie transaction only in the sense that the common object of all of them is the sslling of the ghee.\n\nSelling ghee by itself is not an ofience; only selling E 'adulterated ghee is an offence. The Delhi High Court is not therefote correct in saying that the action of both the accused forn:t part of the same transaction and there was unity of purpose of the manufacturer, the distributor and the vendor furnished by the purpose of an of them to sell and therefore it was the same transaction and all of them could be tried together. It would not be the same transaction in so far as selling adulterated ghee was concerned unless the ghee was F in fact adulterated at every one of these stages.\n\nIf the common purpose all of them was to sell ghee joint trial of all of them would not be valid but if it was t.o sell. adulterated ghee it would be valid.\n\nt~ it _is eged .that at every one Of the stages, that is of manufacture, distribution and sale the ghee was adulterated then .it would be the same transaction and they could all be jointly tried. In the absence G of .an allegation that the ghee distributed by. the appellant to the ve11dor Lakshmi Narain was adulerated both of them canno.t be tried together. The manufacturer could also have been tried along with them only if it is alleged that the ghee he manufactured was adulterated fo the absence of this allegation there cannot be a joint trial.\n\nAt tJie 8\\fige of nsidering the Validity of the charge it is the allegation t 1s material;, at 'the .stage of considering the guilt of \\he parties H 1t is prOOf that 1s matenaL In the present case it may be that the appet could be prosecuted for giving a false warranty because he\n\nad issued a warranty and the fOOd sold by the vendor to whom he issued the warranty was found to be adulterated.\n\nf'.~'El.Jt ,, ' . : ' ', h , A'p(Je'als 'Ill/owed.\n\n, I ::., .• ; .!_'./ . -", "total_entities": 97, "entities": [{"text": "BHAGWAN DASS JAGDISH CHANDER", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "BHAGWAN DASS JAGDISH CHANDER", "offset_not_found": false}}, {"text": "DELHI.ADYIJNISTRATION", "label": "RESPONDENT", "start_char": 30, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "DELHI ADMINISTRATION", "offset_not_found": false}}, {"text": "M. 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{"document_id": "1975_1_315_327_EN", "year": 1975, "text": ". y\n\n-~.£~- 315 •.\n\nSHAMIM RAHMANI ETC.\n\nSTATE OF U.P.\n\nApril 28, 1975\n\n[N. L. UNTWALIA ANDS. M. FAzAL ALI, JJ] B\n\nPenal Code-S. 201-Ascertaining full facts before giving inforn1ation to , po/ice--lf obligatory. ·\n\nThe appelJants were brother and sister and were living in different loc; llities , of the city. The sister developed illicit intimacy with the deceased, but finding that he was not giving her exclusive _ attenion, fired a shot at him when he C .came to her house.\n\nOn hearing about the incident the brother gave information to the police that his younger brother had told him that he \"did not know how his sister took his (appellant's) gun outside and somehow a fire. was shot\" and that the bullet hit the deceased who bad fallen and was bleeding.\n\nThe trial court convicted the sister under s. 302, I.P.C. The brother was D charged with an offence under s. 201, I.P.C. and was convicted and sentenced to three years' rigofOus imprisonment.\n\nThe High Court affirmed the con- victions but reduced the sentence against the brother to one year.\n\nDismissing the appeal of the sister and allowing the appeal of the brother,\n\nHELD :· All the ingredients necessary to be established for bringing home the charge under s. 201, to the appellant were not proved beyond reasonable E doubt.\n\nHe may have known or may have reason to believe that an offence of murder bad been committed by his sister.\n\nBut the other possibility that be may\" not have known or may have not reason to believe that the offence of murder had' been committed by his sister could not be ruled out. He may have only suspected. More facts were yet to be known .. He. did nothing wrong in rushing to the police station and giving the baieit information in writing.\n\nThe prosecution could not unfold that the younger brother had iold anything further to the appeUant.\n\nIt was not obligatoiy or necessary F :for_ the appeUant to probe the matter any further on the spot before rushing\n\nto the police station.\n\n[326 GH 327-B-DJ Criminal Appellate Jurisdiction : Criminal Appeals Nos. 121- 1.23 of 1973 .\n\nAppeal by special leave from the judgment and order dated 10-4-J 973 of the Allahabad High Court in Crl. Appeal Nos. 2224 G ,& 2228 of 1969 and Cr. M. P. No. 1547 of 1973.\n\nYogeshwar Prasad, Keshava Sahai, S. K. Bagga, S. Bagga, Rani Arorrt and Meena Bhatia, for the appellants.\n\nD. P. Uniyal and 0. P. Rana; for the respondent.\n\nThe Judgment of the Court was delivered by\n\n' UNTWALIA, _J., These ar\\' three appeals by special leave.\n\nOne of them was directed from some interlocutory order of the High Court and had become infructuous. Mr. Yogeshwar Prasad, learned counsel for the appellants asked us to dismiss tha, t appeal as being infructuous. We accordingly do so. In one of the remaining two appeals the appellant is Kumari Shamim Rahmani.\n\nShe has been convicted\n\nA under section 302 Indian Penal Code for committing the murder of Dr. Hari Om Gautam.\n\nA sentence of life imprisonment has been awarded to her.\n\nIn the other appeal the appellant is Shri Amir Ahmad Rahmani, elder brother of Shamim. He is said to have lodged a false information at the Police S1<1tion in connection with the said murder with the intention of screening his sister from legal punish- B ment. He has been convicted under section 201 of the Penal Code.\n\nThe Trial Judge imposed a sentence of three years' rigorous imprisonment on him but the High Court has reduced it to one year.\n\nThe murder of the Doctor was the culmination of the wrong and vicious path of love and lust between him .a.nd appellant Shamim.\n\nAs is not uncommon in such type of love affairs, the girl found the C arms of her lover getting loose and cold. It resulted in her frustration.\n\nIn a jealous and revengeful attitude she used her arms on a gun and shot her lover dead.\n\nThus she landed herself in the long arms of law and suffered the conviction for murder. We may observe at the outset that in the conduct of the case on behalf of the appellants in the Trial Court as also in the High Court there has been over- D doing and too much hair splitting but all in vain. On reading the two\n\njudgments of the Courts below and on perusal of the relernnt materials and pieces of evidence in the case and after hearing the fair and able argument of Mr. Yogeshwar Prasad we have come to the conclusion that not only Shamim's appeal is concluded by the concurrent findings of fact n:corded by the two courts below with which.\n\nE but for very strong reawns, this Court is loathe to interfere, the findings in our opinion, are absolutely correct.\n\nThe exhaustive criticism of the prosecution case and the evidence adduced by it has been fully dealt with by the High Court as also by the Trial Court.\n\nThe appeal of appellli, nt Amir Ahmad, for the reasons to be stated hereinafter, is fit to succeed.\n\nF We proceed to state the facts of the case very briefly. We also do not think it necessary to deal with, in any detail, all the points urged on behalf of appclla, nt Shamim as almost all of them were repetitions of the arguments advanced in the High Court and rightly rejected by it. It will be hardly of any use to paraphrase the judgment of the High Court for the purpose of affirming it. '\n\nG The appellants' father was one Azizur Rahman Khan since demeased.\n\nMostly he lived at a place outside the City of Lucknow. fn a rented house at 23, Kandhari Lane, Police Station Kaiserbagh.\n\nLucknow lived Smt. Sikander Jahan, mother of the appellants, appellant Shamim, her elder sister Km. Naseem Rahmani and her younger brother-a boy of tender age-named Mohammad Ahmad Rahmani alias Sheikhu.\n\nThe appdla, nts have another brother named F.A.A.\n\nRahmani who at the relevant time was Personal Assistant to a H MiniSter of the Central Government and was living in Delhi. Appellant Amir Ahmad was living in .another house in the City of Lucknow at No. 24, New Berry Road, Police Station Hazratganj, Lucknow.\n\nHe had a shop where he dealt in spare parts of tractors.\n\nAt the time of the occurence which took olace at about 11.00 or 11.15 p.m. on the 1 lth July, 1968 appellant Shamim was a\n\n:iHAMIM RAHMANI v. u. P. STATE ( Untwalia, .r.) 317\n\nCollege going girl and was about 22 years of age.\n\nShortly before in the year 1967 she had passed her B.Sc. examination. Dr. G, a.utam was about 35 years of age at the time of occurrence.\n\nHe was a married man and had his wife living.\n\nThere were three children born of their wedlock. Dr. Gautam was attached to Balrampur hospital, Lucknow in the year 1966. Azizur Rahman had a paralytio attack and was admitted in Balrampur hospital on 7-5-1966.\n\nHe wa, s treated as an indoor patient in a special ward of the hospital for about 20 days by Gautam under the supervision of senior Doctors.\n\nThe family members including Shamim were visiting Azizur Rahman in the hospital and the love episode sta.rted there between the voluptuous Doctor and the unscrupulous Shamim.\n\nAzizur Rahman after being discharged from the hospital lived in the Kandhari Lane house with his family members namely his wife, the two daughters and the voung boy, for sometime.\n\nDr. Gautam used to visit and look afte~ Azizur Rahman at the house also.\n\nThe love affair of Gau1<1m and Shamim went on progressing and reached a scandalous height. Gautam started visiting Shamim at her house too frequentlyalmost daily-and sometimes more than once in a day.\n\nHe used to take her for joy rides on his Scooter.\n\nRecords of this case do not disclose any resentment or protest on the part of the family\n\nmembers of Shamim although being unmarried she was carrying on almost openly with an elderly married person. But the mohalla people did not like this drama of love affair being ena.cted in their locality without any sense of shame or scrupules.\n\nThe various love letters written by Gautam to Shamim and some chits written by the latter, which were recovered from her possession after the occurrence showed that their love h, ad reached the low level of sexual lust also. It appears Gautam was a handsome looking man and Shamim was infatuated in her love with him. She wanted his exclusive attention. And what\n\na curious manifestation of human psychology and se!fiishness it was, that though Shamim had encroached on the exclusive region of Gautam's wife, she was not prepared to tolerate any encroachment in the realm of her love by any other girl. Materials in this case do indicate that the Doctor was a free-lancer and a licentious man. He often used to visit cinemas, theatres, rest, aurants and was always after pastures new.\n\nAt times Shamim used to resent and feel highly disgusted with the free lancing habits of Gautam so much so that on one occasion in Janua, ry, 1968 it is said that she slapped Gautam in front of Kwality Restaurant situated at Hazratganj. For sometime before !he occurrance Gautam endeavoured to be treacherous and wriggle out of her affairs with Shamim. She wanted to keep him tightly in her clutches.\n\nGautam was feeling it difficult to get himself released from her clutches as she was in possession of his love letters. The frequency of his visit~ to her house, however, lessened. On the 9th of July, 196.8 he was found going on scooter with another girl riding on its\n\nu1lhon. The fact was reported to Shamim by Ganesh-a servant of appellai:t Amir Ahmad. This aded sufficient quantity of fuel to the fire of 1ealously and hatred which was already burning in the heart of Shamim.\n\nThere were frequent quarrels between Shamim a.nd Gautam. On the 10th July, 1968, Gautam visited Shamim's house in the evening,\n\nA although for 10 or 12 days before the occurrence, the frequency of his visits had diminished. In that visit there was a quarrel between them. On the '11th July, 1968 Gautam visited Shamim agajn in her house at about 3.00 p.m.\n\nThere was an altercation between them.\n\nWhen the Doctor was leaving the house, Shamim asked him to come for the last time in the evening under the pretext of helping her in B filling up her , a, dmission form.\n\nIn the evening of the 11th July, Dr. Gautam first went with his wife to the house of a Principal of a College for a social caR.\n\nP.W. 17 Mohd. Sabir Khan was posted as Deputy. Superintendent of Police, C.I.D: at Lucknow at the relevant time. He was a patient and a friend of Dr. Gautam. He was suffering from a severe, headache c and Dr. Gautam went to the house of the Dy. S.P. from the Principal's house._ Doctor gave him some medicine and had a cup of tea at his place.\n\nHe left .his house on the pretext of going to the Civil Hospita.J to which he had been transferred from Balrampur hos- , pita!; but instead be want to the house of Sbamim at about 10.30 p.m.\n\nHe rang call-bell. Shamim came out and opened the western door D of the drawing room. It bad three doors. The central a.nd the eastern doors were closed.\n\nTo the east of the dra, wing room was a room in which Shamim used to sleep. There is another room to the west of the drawing room.\n\nGautam and Shamim talked about for 20 minutes in the drawing room.\n\nThe former came out, went to the Scooter for going away.\n\nE Bnt Shamim called him back. As soon a, s he stepped back and reached inside the western door of the drawing room Shamim who had by then brought a DBBL gun, fired a shot at Gautam. It seems he crouched and the first short missed.\n\nShamim repeated the second shot intaneously and hit Gautam on the right side of his forehead.\n\nHe fell down. The lower half of the body was inside the drawing room and the upper half was outside the door in the verandah. P.W. 15 F Kalika Prasad-the most important witness in this case and a, h immediate neighbour of Shamim. was lying on a cot outside his room.\n\nHe has deposed to several facts to supply various links in the chain of 'the prosecution story. Aprt from other facts stated by him in his deposition it is said that he and P.W. 18 Ram Krishna Tripathi saw Shamim immediately after the gun fire going with a gun in her right hand from the eastern side of the drawing room to the G western room.\n\nThey went near the dead body of Ga.utam, peeped into the drawing room but saw no one else there.\n\nSheikhu after the incident rushed to the house of appellant Amir Ahmad on a cycle.\n\nAmir Ahm11.d came to the house.\n\nHe then went and loged an information at Kaiserbagh Kotwali at 1.30 a.m. on the 12th July, 1968. In short his information to the police was H that Sheikhu had told him that it was not known how Shamim brought\n\nout the gun arid how it got fired but the shot hit Gautam who was ·· lying bleeding in the verandah of the drawing room. Tn the meantime Kalika is said to have heard the extr.a-.iudicial confession made by\n\nShamim before her mother sitting on a cot in the courtyard. Tripathi claimed to have heard a similar extra-judicial confession made by ShJ\\lllim before her brother Amir Ahmad.\n\nSHAMIM RAHMANI v. u. !'. STATE ( Untwalia, J.)\n\nAfter receipt of the information at the Kotwali, the first to arrive at the scene of occurrence was Sub-Inspector Dildar Raza, P.W. 28.\n\nThe various steps taken by him, the recovery of the licensed gun (standing in the_ name of Sikander Jahan), the fired cartridges a, nd certain live cartridges are all mentioned in the judgments of the courts below.\n\nThe case naturally required a very prompt, intensive and thorough investigation.\n\nServices of 11 Ballistic Expert, Handwriting Expert, Photographers belonging to the Criminal Investigation Department were requisitioned.\n\nUnder orders of P.W. 17 Mohd.\n\nSabir Khan later in the day the investigation was_ taken u_p by C.l.D.\n\nInspector P. N. Singh from P.W. 28 Dildar Raza. After a, few days the investigation was taken up by P.W. 31 K. P. Tiwari who even- .tually submitted the Charge-Sheet.\n\nThe defence of appellant Shamim was that she did not commit the murder. Eventually it was , a, dmitted on her behalf that she was fa deep love with the Doctor. It was, however, denied that she had developed any jealousy or hatred or had any quarrel or difference with him. .Like a drowning man catching at the straw, wild suggestions were thrown tl\\a.t there was a possibility of the murder of the Doctor having been committed by her cousin Iqbal Uddin Khan, P.W. 24, any of his family members or somebody else.\n\nAppellant Amir Ahmad in his defence asserted that on receiving the information from Sheikh he did not go to Shamim's residence, first went to Hazratganj Police Station •and from there he went to Kaiserhagh Police Station. He denied to have lodged a written report Ext. Ka-12 or to have given deliberately any false information in order to screen his sister.\n\nThe Trial Court believed the prosecution case and held it to have been established against both the accused and convicted them.\n\nThe High Court affirming the findings. of the Trial Court has maintained their conviction.\n\nA_s already stated it has reduced the quantum of sentence imposed on appellant Amir Ahmad.\n\nThe High Court has scanned the prosecution evidence very carefully.\n\nIt J, as left out of consideration the evidence of P.W. 18 Tripathi as a matter of abundant caution only on the ground of his having been examined late by the Investigating Agency on 16-12-1966. Topic-wise it has discussed the evidence and has met the criticism of the defence witnesswise also. On consideration of the entire evidence it has recorded the following conclusions of facts :\n\n\"1. that there was love affair between Km. Shamim Rahmani and Dr. Hari Om Gautam.\n\n2. that after being assured of the love professed by Dr.\n\nGautam, Km. Shamim Rahmani behaved as a love- H Jorn girl.\n\n3. that after seducing Km. Shamim, Dr. Gautam turned unfaithful to her and in spite of his written promises and the entreaties of Km. Shamim, he continued to be un-faithful.\n\n4. that after Dr. Gautam had given written promises and had broken them, Km. Shamim slapped him openly and publicly in Kwality Restaurant.\n\n5. that some 12-15 days before the murder Dr. Gautam had stopped visiting Km. Shamim so frequently as he had been doing earlier, and her entreaties had also failed to have any effect on Dr. Gautam.\n\n6. that Dr. Gautam was threatened by Km. Shamim on occasions for being unfaithful.\n\n7. that continuously for two deys before the murder, there had been heated talks between the two.\n\n8. that two days before the murd.er Km. Shamim had been informed by Ganesh tha.t he had seen Dr.\n\nGautam going on his scooter with another girl like her.\n\n9. that this gave rise to the jealousy of Km. Shamim D Rahmani to the extent that she made enquiries about the whereabouts of Dr. Gautam from his sister and called Dr. Gautam at her house and under the pretext of her illness.\n\n10. th.at a few nours before the murder Km. Shamim\n\nRahmani had told Dr. Gautam that he should come E m tbe e'!.cning to get her form filled no matter whether he came afterwa.rds or not.\n\n11. that Dr. Gautam was found murdered at the house of Km. Shamim Rahmani.\n\n12. that the gun with which the murder had been committed was fired from inside the drawing room.\n\n13. that after the murder no one except Mohammad Ahmad Rahmani alias Sheikhu was seen going out of the house.·\n\n14. that the gun with which the murder was committed belonged to Smt. Sikander J ah an and was recovered from the bed room of Km. Shamim R11hmani.\n\n15. that Km. Shamim alone had a strong motive to commit the murder of Dr. Gautam to the exclusion of any other meinber of the family or outsider.\n\n16. that except Km. Shamim Rahmani there was no othe1 person present in the drawing room shortly before a.nd after the shooting.\n\n17. that Km. Shamim Rahmani was seen going in the\n\ndrawing room from east to west with the gun in her right hand soon after the murder.\n\nJ.. •\n\nSHAMIM RAHMANI v. u. p. STATE ( u ntwalia' J.)\n\n18. that Km. Shamim Rahmani made an extra-judicial confession to her mother of her having shot at Dr. Gautam shortly after his murder.\"\n\nIt ha/; also opined that even if the last two facts were left out of consideration the other sixteen were conclusive to irresistibly lead to the conclusion that it was Shamim and Shamim alone who was responsible for the murder of Gauta, m by gun fire.\n\nWhile endorsing the view of the High Court in this regard we find no justillcation for leaving the last two facts out of consideration for finding the guilt of appellant Shamim.\n\nWe now proceed to briefly refer to the various topic-wise and witness-wise discussion of the case by the High Court.\n\nSince we find ourselves in complete agreement with the judgment of the High Court, we do not propose, as it is not necessary to do so, to mention or discuss the va, rious aspects of the case in any detail.\n\nThe High Court has first pin-pointed its attention on the topography of the place of occurrence.\n\nThereafter it has directed its attention to the evidence of Dr. Suri who had performed the autopsy on the dead body of Gautam.\n\nFrom the statement of Dildar Raza a, s well as from the copies of the various photographs exhibited in the case the position in which the dead body was found was fixed up. The various matters mentioned in the judgment of the High Court on the question \"WHETHER THE SHOTS WERE FIRED FROM INSIDE 11IE DRAWING-ROOM OR FROM OUTSIDE\" are so convincing that one could not but come to the conclusion thAt the shots were fired from inside the drawing room and not from outside.\n\nThe various findings of bullet marks on the wall, the calendar, the door parie in the light of the evidence of the Ballistic Expert did not leave any scope for even a shadow of doubt that the Doctor wa, s hit by a gun fired from inside the drawing room. The assailant at the time of firing was not and could not be visible to persons outside as the shots were fired from a place inside the drawing-room which was south east of the western door.\n\nAnd that is the reason that Kalika did not say tha, t he saw Shamim firing the shots at Gantam.\n\nHe merely deposed to the facts of the former proceeding to the western room immediately after the firing.\n\nIt may also be added that the fact that the shots were fired from inside the drwing room was neither disputed in the High Court nor before us.\n\nFor the reasons stated by the High Court in its judgment, we unhesitatinglv endorse its View that the shots were fired from the 20 Bore DBBL gun which was recovered from the eastern room and the licence of which was in the name of Sikander Jahan. Stress was laid before us that P.W. 14 Siya Ram Gupta. the Ballistic Expert hed deposed with reference to the two empty cartridges found at the spot that the shots could have l)een fired from the 20 Bore DBBL gun of Sikander Jahan ; the expert was not definite about it. We fif\">IJ n0 f0rcc in this :irwn1ent. Even the t\\vo fire<l emptv c;:irtrfrl('es were T'ecovered from the eastern roon1 and keening in vie\\v the fact that Guota's evidence was not a direct evidence but an opinion evidence of the Expert and on appreciation of his evidence as a whole\n\n' 321\n\nA in the background of the other facts and circumstances there could\n\nnot be any shadow of doubt that it was the DBBL gun of Sikander Jahan which was used in firing the shots at Oa, utam. Learned counsel for the appellant Shamim further submitted that Gupta had found some finger prints on the gun but the prosecution suppressed the Expert's report presumably because it did not bear the finger prints B of Shamim.\n\nWe think it has rightly been pointed out by the High Court that the gun in all proba, bility was handled by other members of the family and the prosecution could not be, therefore, certain about the finger prints.\n\nAlthough we do not consider it necessary, 'as we have repeatedly said in this judgment, to repeat all that was argued before us, as it wa, s a mere repetitio9 of the argument before c\n\nthe High Court, out of deference _to the pains-taking arguments of Mr. Yogeswar Prasad, just at times, we mention one or two matters.\n\nIt was argued that in the recovery memo Ext. Ka-239 Raza did not mention that fro~1 the smell of the barrels it appeared that the gun had been recently fired as deposed to by him in court. He did say so with reference to the case diary.\n\nThere was nothing shown either in the Trial Court or the High Court to contradict the state- D ment. The recovery memo of the two fired cartridges i.s Ext. Ka-240.\n\nThey were of \"twenty bore coloured brown Eley Kynoch which arc giving the odour of freshly used gun-powder\".\n\nWe may in passing refer to the recovery memo Ext. Ka-241 which showed recovery of five numbers of live cartridges of \"twenty bore coloured brown of Eley Kynoch\".\n\nOn consideration of the entire. submissions made on behalf of the appellant, we are fully satisfied that the gun used in the occurrence was the gun the licence of which stood in the name of the mother of appellant Shamim.\n\nThe time and place of occurrence was not disputed.\n\nNor was it disputed that \"ihere wa, s a love affair between Shamim and Dr.\n\nF Gautam and that they had physical intimacy as well.\" One has simply to pity the lot of Sharnim who surrendered to the Doctor her virginity and thereafter felt frustrated.\n\nIt must have completely upset her mental ha.lance. Relying on the evidence of P.W. 10 Gyani Mahendra Singh it has rightly been held by the High Court that the slapping incident in the Kwality Restaurant as deposed by him was trne.\n\nThere were several letters in the handwriting of Dr. Gautam Ext. -\n\nG Ka-21 is dated 17-1-1968 containing~ show of promise by him that thenceforward he would not witness any cinema show or go to any restaurant, coffee house or club.\n\nBefore that is a letter Ext. Ka-20 dt. 27-7-1967 containin~ promise of Gautam that he would not talk about any girl.\n\nAll these letters were addressed to Shamim and were recovered from the eastern room in which she used to reside.\n\nff The High Court has rightly believed _the evidence of P.W. J.9 Ganesh Prasad.\n\nAll criticisms levelled against his testimony were fruitless and rightly so.\n\nShamim was so much infatuated in her love with' the Doctor that at one time she tola her mother when there was a talk of Dr. Gautam's transfer from Lucknow that she would embrace Hinduism and go with him to his place of transfer.\n\nThe mother consoled her that attempts would be made to get his ).... \"\n\nSIIAMIM RAHMANI v. L'. P. STATE ( Untwalia, J.) 323\n\ntr.a, nsfer cancelled.\n\nIt appears that the attempts did succeed and i\\ Dr. Gautam was eventually transferred from one hospital. to the other in the City of Lucknow.\n\nGanesh deposed about the mformation given by him. to Shami!!'. on 9:7-1968 that. he had seen_ the Doctor going on bis scooter with a girl like Sham1m. 'f.lus mc1dent seems to have completely unnerved the infatuated Sham!ID and put\n\nhcrt~~.\n\nThe evidence of Dr. S. N. Rav, P.W. 20-another close neighbour of Shamim Shushila Kumari, P.W. 21-a college friend of Shamim and Kunia:i Shashi Kanta Gautam, P.W. 23-sister of Dr. Gaµtam amply proves some of the facts found by th~ !'Iigh Court in its ultimae conclusions.\n\nUnnecessary and pointless cnt1c1sm was made of their C evidence in the High Court with no result.\n\nThe appraisal of the evidence of these witnesses by the High Court was so very right that it was only hoping against hope to get a different result in this Court.\n\nOn the point of the breaches which had been caused by the Doctor in bis affairs with his beloved the prosecution could place on record a letter Ext. ka-29 deciphered with the help of an Expert. It does not bear any date. But jt has been proved to be a, writing of Shamim . to Dr. Gautam. It reads thus :\n\n\"Do not commit fraud with the girl otherwise in your life too such a time could come sometimes.\"\n\nTo resume the story of the last two days of the tragic love drama, it may be pointed out that Kalika saw Dr. Gautam going to the House Shamim on 10-7-1968.\n\nHe heard their altercation.\n\nAgain ou 11-7-1968 Kalika saw the Doctor cori\\Tn]l to Shamim's house at about 3 .00 p.m. There was a heated altercation between\n\nthe two but he could not catch the words as it was going on in F the drawing room. After 15 minutes when bofh came out in the verandah then he could hear Shamim asking Gautam to get her work done.\n\nGautam w11.nted to evade but Shamim sternly told him \"that she had already heard such provocative words but further requested hill1 that her form be filled up that night and after that he might come or not.\"\n\nG Before we refer to the criticism levelled a11; ainst the testimony of the most important prosecution. witness Ka!ika,, we may point out that Iqbal Uddin Khan was examined as a , prosecntion witness. He was in the house of Shamim for a few days prior to the occurrence but left the house af about 3.00 p.m. for going to Barielly by Punjab Ma, il. His evidence completely negatives the suggestion that he could have been responsible for the murder of the Doctor. We may also H dispose of the point which' was sought to be vehemently pressed before us that the police investigation in this case was not fair and proper. It was argued that P.W. 17 Mohammad Sabir Khan being a friend of the Doctor took an unusual interest in the investigation and he was responsible for asking P. N. Singh to take up the investigation from Dildar Raza. It was further submitted that Crime\n\n-~,.._.,._,,,_ __\n\nA number was given to the case after 4.00 p.m. on the 12th July although investigation started earlier.\n\nThen it wii, s argued that Ext. ka-230 the typed letter asking P. N. Singh to take up the investigation bore the crime number although P. N. Singh took up the investigation at about 3 .00 p.m. on the 12th July. It was, therefor~, submitted that the letter was a fabricated a.nd anti-timed document.\n\nB The learned Additional Sessions Judge and the learned Judges of the High Court have given a complete answer to all the criticism.\n\nThe last point was repelled with reference to the handwritten letter Ext. Ka-254 which bore the endorsement of Dildar Raza also. We have no doubt that. the investigation was conducted promptly and faithfully and could not be subjected to any due criticism. c The High Court has excluded even the remote possibility of the murder having been committed by Sikander Jahan, Naseem, Sheikhu or Sughara, their maid servant. ln our opinion, hinting upon the possibility of the murder having been committed by any of them was an attempt in desperation to catch in air something to save Shamim.\n\nThen comes the evidence of Kalika.\n\nAs already stated his testi- D mony is in support of many facts which make the cover of circumstances full-proof against Shamim.\n\nHaving considered his evidence in the light of the criticism, we see no justification to reject it in disagreement with the two courts below.\n\nApart from being a witness to the love affairs of the Doctor and Shamim, the visits of the former to the latter, he was also a witness to the fa.ct that Gautam was not visiting Shamim's house so frequently as he had E been doing earlier shortly before the occurrence.\n\nHe was a direct witness to his visits to Shamim's house on the 10th and twice on the 1 lth. His evidence that he had seen Sh:\\Illim going in the drawing rooiu from east to west with the gun in her hand immediately after the shooting was quite trustworthy.\n\nEven though the eastern plank of the western room of the drawing room was shut, through the F remaining open space of the western door Kalika could very well see Shamim pa, ssing in the drawing room with a gun in her hand.\n\nThere was sufficient light. His evidence as to the extra-judicial confession made by Shamim to her mother seems to be quite natural and convincing. On query by the mother the reply given by Shamim was that she had done nothing wrong in shooting Dr. Gautam when he went hack from his promises a.nd was proving unfaithful.\n\nFrom G the view point of common ethics or morality one may say that\n\nShamim committed no sin in shooting dead a man like Gautam, although she was contributory in the act of Gau tam's lust for her. But in the eye of law, she surely committed the crime of murder punishable under section 302 of the Penal Code.\n\nEven if we wished, we could not reduce the sentence of life imprisonment imposed on her as that is the minimum sentence provided under section 302 of the H Penal Code.\n\nHer mercy appeal for remission of any part of her sentence lies elsewhere.\n\nThe criticism 1eve1Jed against the prosecution \\Vitness KaHka are: ( 1) That he was examined late by the police in the evening of the 12th July, 1968.\n\n... .\n\nSIIAMIM RAHMANI v. u. P. STATE (Untwa/ia, J.) 325\n\n(2) That the parchas containing his statement were sent to the office of the Superintendent of Police on the 15th July.\n\n( 3) That there are material contradictions in his evidence.\n\n(4) That there is an interpolation in the case diary where Kalika's statement has been recorded.\n\n(5) That he was inimical to Shamim's family.\n\n(6) That he deposed in court as admitted by him from his fits of imagina.tion and not on facts from his occular observations.\n\n( 7) That he could not see Shamim passing in the drawing room with a gun in her hand.\n\n(8) That his evidence as to the alleged extra-judicial confession made by Shamim before her mother is untrustworthy.\n\nWe find no substance in a, ny of the criticisms made on behalf of appellant Shamim. Some of them have already been alluded to.\n\nOn the facts explained by him, his examination by the police was not late. High Court has found a plusiblc reason for the receipt of the parchas in the S.P.'s Office on the 15th.\n\nThere is no such interpolation in his statement in the case diary which could cause any dcmbt in respect of it.\n\nHe was not inimical to Shamim's family.\n\nHis statement in the deposition at times that whatever came in his mind he had !lated means in the context that whatever he conld recollect he had stated. It is just a figment of imagination to suggest that his statements were the products of his imagination. We have already reiterated the view of the High Court that he could very well see\n\nShamim going in the drawing room with a gun in her hand and that his evidence as respects her extra-judicial confession is trustworthy.\n\nAlthough the learned Additiona.l Sessions Judge was not unjustified in relying upon the evidence of P.W. 18 Tripathi, the High Court also seems to be justifiably cautious when it thought it proper to exclude his evidence from consideration. There was some .iustification for it because he was examined late by the police. The exclusion of his evidence from consideration, however, as we shall presently show, goes a long way to help ; ippellant Amir Ahmad.\n\nFor the reasons stated above we see no substance in the appeal filed by appellant Shamim Rahmani and dismiss it.\n\nComing to the appeal of appellant Amir Ahmad, we would first like to quote the translation of the written report given by him at\n\nA the police 'station, from the judgment of the Trial Court. It reads as -\n\nfollows :\n\n\"Sir,\n\nI . beg to state that I reside along with my family in 24/1, New Berry Road. My mother along with two sisters reside in my younger brother's house No. 23, Kandhari Lane.\n\nToday at night about 11.30 my younger brother Mohammad Ahmad Rahmani came to my house and started knocking the main gate with great force on which I opened the door. Mohamma, d Ahmad told me that a strange thing has happened in the house. On my asking, he told that he did not know how his ;; ister Shamim took his gun outside and somehow a fire was shot. The bullet hit Dr. Gautam and he has fallen and is bleeding. After writing my report the necessary action may be taken. Applicant Amir Rahmani s/o Azizur Rahman Khan resident of 24/1 New Bery Road, Lucknow 12th July, 1968.\"\n\nD We do not doubt in the least that this was the written report given by this appellant at Kaiserbagh Kotwali.\n\nThe attempt made on his behalf to show that he-had not gone to the place of occurrence before going to the Thana or that he had not given this written report at 1.30 a.m. on the 12th of July has rightly failed in the courts below. But the question for consideration is whether with- E out the aid of the evidence of P. W. Tripathi it could be held that the requirements of section 201 of the Penal Code have been fulfilled against him.\n\nThe evidence of Tripathi was as respects the extrajudicial confession said to have been made by Shamim before this appellant. If that could be taken into consideration then one could say that he knew that the offence of murder had been committed by his sister.\n\nOn tha, t basis it could be held that the written report as F given by him was with the intention of screening the offender from legal punishment and he kne'w the information to be false.\n\nBut once that goes out then we are left with what he learnt from Sheikhu and what was told to him by Kalika. We believe the testimony of Kalika to the effect that Amir Ahmad had gone to the place of occurrence on a motor-cycle or a scooter andhe had told him everything. But then, what follows ?\n\nKalika had not stated ( that he had seen Shamim firing a.t the Doctor.\n\nThe facts narrated by him must be, more or less, in brief those as told by him in court.\n\nOn these facts Amir Ahmad could neither know nor could have reason to believe that Shamim had committed the murder of the Doctor. More facts were yet to be known. He did nothing wrong in rushing to the Police Station . and giving the barest infor111ation in writing. No other part of the statement is .said to be false except the H following :\n\n\"Mohammad Ahmad told me that a strange thing has happened in the house. On my asking, he told that he did not know how his sister Shamim took his imn outside and somehow a fire was shot. The bullet hit Dr. Gautam and he has fallen and is bleeding.\"\n\nSHAMIM RAHMANI v. u. P. STATE (Untwalia, J.) 327\n\nProsecution could not unfold that Mohammad Ahmad alias Sheikhu A had told anything further to Amir Ahmad. The fact that his sister Shamim took out the gun was true.\n\nThat shot was fired was also true. It was a fact that the bullet hit the Doctor. That he had fallen and was bleeding was not untrue. Amir Ahmad may not be sure whether the Doctor was dead or alive. It was not obligatory or necessary for him to probe the matter any further at the spot before B rushing to the police station.\n\nIn our judgment, therefore, after exclusion of the' evidence of P, W. Tripathi from considera.tion all the ingredients necessary to be established for bringing home the charge\n\nunder section 201 of the Penal Code to appellant Amir Ahmad were not proved beyond reasonable doubt. He may have known or may have reason to believe tlrat a.n offence of murder bad been committed by his sister Shamim. But the other possibility that he may not have C known or may not have reason to believe, he may have only susected that the offence of murder .had been committed by Shamim, cannot be ruled out. That being so, we think the benefit of doubt must go to appellant Amir Ahmad. We accordingly allow his appeal, set aside his conviction and sentence under section 201 of the Penal Code and acquit him of that charge.\n\nCr. As. Nos. 121-122/73 dismissed .\n\nCr. A. No. 123/73 allowed.\n\nP. B. R.\n\n10 SC/75-22", "total_entities": 25, "entities": [{"text": "SHAMIM RAHMANI ETC", "label": "PETITIONER", "start_char": 20, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "SHAMIM RAHMANI ETC", "offset_not_found": false}}, {"text": "STATE OF U.P", "label": "RESPONDENT", "start_char": 41, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "N. L. UNTWALIA ANDS. M. FAzAL ALI, JJ", "label": "JUDGE", "start_char": 73, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "S. 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{"document_id": "1975_1_328_335_EN", "year": 1975, "text": "N. LAKSHMANA RA•) & ORS. ETC. v.\n\nSTATE OF KARNATAKA & ORS. ETC.\n\nApril 29, 1975\n\n(A. N. RAY, C.J., K. K. MATHEW, V. R. KRISHNA IYER\n\nAND A. C. GUPTA, JJ.J\n\nKurnataka State <7hil Service (Age of Con1pulsory Retiren1e111) Rules, 1974 and Constitution of India, 1950. Article 309 and 311-Reduction of rhe aRe of conipulsory retirernent froni 58 to 55 years-Prescribing age of supe.r~ C annuation, if an1ounts 10 re1noval or termination.\n\nMysore CO!npulsory Prbnary EducaHon Act, 1969, Section 14(b)-Teachcrs of pritnary schools beconiing eniployees of State Gi0J-en11nent-Conditions of seri•ice to continue \"r, ntil other pro1•ision is 1nade\"-Section 14(b), if tempo rary .and transitional--Conditions, if can be altered by the Governor.\n\nThe new State of Mysore came into existence on 1 November, 1956, con sequent upon the reorganisation of States brought about by the States Rcorga nisation Act, 1956. The reorganised new State consisted of the fonner State of Mysore, part of the former State of Bombay, part of the fonncr State of llyderabad, part of the former State of Madras and the ccntrn11yadministered tcrritorj.i of Coorg. There are three categories of teachers \\vho are parties to these appeals. One group consists of primary and secondary school teachers in Government schools of the former State of Mysore. The second group consists of teachers in the schools belonging to various local authorities situated in the area of the former State of Mysoce.\n\nThese teachers were absorbed in Government service of the new State of Mysore when the said schools were taken over by the Ciovemment. The third groupcortsists of teachers in the schools of the School Boards in the Bombay area and the Madra<J area of the: new State. They \\\\ere absorbed in Government service under the J\\-fysore Compulsory PrimJ.ry Education Act, 1969.\n\nOn 24 February, 1974, the Karnataka State Civil Service (Age of Con1pulsory Retirement) Rules, 1974 came into existence in exercise of powers under Article 309 of the Constitution. These rules provided that notwithstand ing anything to the contrary contained in any law, ruie, notification, order or agreement C\\'ery Government servant referred to in sub-rule ( 4) whose :.ige of compulsory retirement is 58 years shall retire on <:.ttaining the age of 55 years. It was also provided by those Rules that those who continued in service after attaining the age of 55 years on the date of the promulgation of the l{ules would retire on the date on which they attained the age of 58 years G or l April, 1974 v; hichever is earlier. It is also stated that those who ,.,.-jll attain the age of 55 years after the commencement of these Rules, but on or before 1 April, 1974 would retire on 1 April, 1974. Those who \\Vi11 attain 55 years after 1 April, 1974 shall retire on attaining the age of 55 years. The Govern ment servant was defined in 1974 Age of Compulsory Retirement Rules to mean six classes of Government servants. The three categories of teachers who are parties to these appeals are all covered by the nlles.\n\nll It was contended on behalf of the ExMysore Primary and Secondary School teachers that they had their age of retirement at 58 years and they were protected under the proviso to subsection (7) of section 115 of the States Reorganisation Act. It was contended on behalf of the teachers of ExMunicipal High Schools that their age of retirement \\vhich \\\\'as applicable to the Municipal Jfjgh School Teachers before the date of take over was 58 years, and therefore, they were protected under the agreements du.ted 30th April, 1971. rhe contention on behalf of the teachers of elementary schools which were under the management of local bodies and v.hich were\n\nA •\n\nN. L. RAO 1'. KARNATAKA (Ray, C.J.) 329\n\ntaken over by the State Government that their age Of retirement was 58 years A before the schools were taken ovrer by the State Government under the provi sions of Karnataka Compulsory Primary. Educati9n (Am1; ndment an<l Miscellaneous Provjsions-) Act, 1969 and their conditions w0uld continue until other condition was n1ade. The principal contention of the teachers of the •\n\n~Iunicipal and Taluk Development Board High Schools which were taken over by .the State Government under written agreements made by the rclc vant local body v; as that the condition which was offered by the Government and accepted by these teachers \"shaH not be altered to their disadvantage\" B by virtue of sc.ction 14(b) of the ~1ysore Compulsory Prim::iry Education Act, 1969. One of their conditions of service before the schools were taken - ove, r by the State Government \\\\as the age of retirement of teachers at 58 years.\n\nRejecting the contentions and dismissing the appeals :\n\nFIELD : .(i) This Court has held that prescribing an age of superannuation C doe-S not amount to an action under Article 311 of the Constitution. Article 'i. 309 confers lgislative power to provide conditioni, ot service. , The legislature can regulate conditioµs of service by law \\Vhich can impair conditions or terms of seivice. it, therefore, follows that teachers \\Vho exercised the form of option \\Vere subject to change in the conditions of service under Rules framed under Article jQ9. There is no constitutional limitation to reduce the age of retirement. A Government servant e-njoys the status of a Govenuncnt servant. He cannot be removed and •his . services cannot be terminated except D in accordance with the provisions of the Constitution. Fixing an age of retire ment does not amount to removal of termination.\n\n[333H, 334- & 335A]\n\nRoshan Lal Tandon v. Union of India [1968}1 S.C.R. 185; B. S. Vadera v.\n\nUnion of India & Ors. f1968) 3 S.C.R. 575 and Bislzun /\\larai11 Mishra v. Stare of Uttar Pradesh & Others [1~65] 1 S.C.R. 693, relied on :\n\nGurdev Singh Sidhu v. State of Puniab & Others [1964] 7 S.C.R. 587 and State of Mysore v. Pad111ant1bhaclzarya [1966] 1 S.C.R. 994, , referred to.\n\n(ii) The 1969 Act provided in section 14 transfer of primary schools managed by the municipal rouncils and panchayats in the Madras area and Bellary District before the appointed day.\n\nTeachers of those schoo]s became employees of the State Government. The provision contained in section 14(b) of the 1969 A.ct is a temporaiy and transitional provision \\Vhich continues until other provision is made. The Legislature does not say until other provi- F sion is made because the Legislature is always free to legislate. The words\n\nutil other provision is made\" mean provision which can be made by the legislature or by the Governor or the executive. The words \"until other provit sion is made\" do not exclusively limit to legislate. If the legislature has occupied the field the Governor has co-equal power. 'J'be power of the Governor is co-extensive with the legislative po\\\\'er.\n\n[335 BCDH]\n\nB. S. Vadera v. Union of India & Ors. L1968] 3 S.C.R. 575, refe1Ted to.\n\n~tion 14(b). of the 1969 .Act is not a law regul<lting recruitment and cond1hons of sery1ce under Article 309. Assuming it is, Article 309 does not\n\nprelude the legislature from making provision prescribing conditions or re cru1tment and conditions of service by Rules. It is equally open to the Jegislature to provide tha~ in certain ronditions the Governor acting under the proviso may make appropnate rules. The po1, ver under the proviso is co-extensive with the power under the main part. [335F-H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1919- 1931, 1932-34, 1959-84, 1985, 1986, 1987-89 1991-2007 & 2043 of 1974. '\n\nFrom the judgment dated 18-J 0-197 4 of the High Comt of Bangalore in Writ Petitions Nos. 1019, 865, 1118, 1157, 1197, 2522,\n\nA 2584, 2904, 3576, 4029, 5662, 1170 & 3204 of 1974.\n\nA. K. Sen (In C. A. No. 1919 of 1974) Rama Jois, (In C. As. 1919-31) & (W.P. No. 249/74), P. R. Ramasesh (In C.As. Nos. 1919-31) and R. B. Datar, for the appellants (In C.As. Nos. 1919-31, 1987, 1988, 1991-2007, 2043) & petitioner (In W.P. n No. 249 of 1974). .\n\nS. Laksluni11aras11, for the petitioners (In C.As. Nos. 193'.!-34).\n\nRama Joie and S. S. Khanduja, for the appellants (I~ C.As. Nos. 1959-84/74).\n\nC Narayan Nettar, for the appellants (In C. As. Nos. 1985-86( 1974).\n\nV. !. Francis, for respondents Nos. 4-8 &, 10 (In C.A. 1983).\n\nF. S. Nari111a11, Additional Solicitor General, (Jn C.A. No. 1919) D K. S. Puttaswamy, (fo C.A. No. 1919/74) & (W.P. No. 249/74) and M. Veerappa, for State of Karnataka in all the matters.\n\nA. R. Somnath Tyer, N. D. Kurlarni (Jn W.P. No. 21/75) and Ra111a Jois and R. B. Datar, for applicant/Intervener/Writ Petitioner.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J .-These appeals by certificate turn on the question as. to whether the Karnataka State Civil Services (Age of Compulsory Retirement) Rules, 1974 are valid.\n\nThese cases may be broadly classified into three categories. One F group consists of primary and secondary school teachers in Government schools of the former State of Mysone. The 5econd group consists of teachers in \\he schools belonging to various local authorities situate in the area of the former State of Mysore. These teachers were absorbed in Government service of the new State of Mysore when the said schools were taken over by the Government. The third group consists of teachers in the schools of the School Boards in the Bombay G area and the Madras area of the new State. They were absorbed in Government service under the Mysore Compulsory Primary Education Act, 1969.\n\nThe new State of Mysore came into existence on 1 November,. [ 956 consequent upon the reorganisation of States brought about by the States Reorganisation Act, 1956. The reorganised new State conn sistcd of the former State of Mysore part of the former State of Bombay, part of the former State of Hyderabad, part of the former State of Madras and the centrally administered territory of Coorg .\n\n. Sections l l 4 and 115 of the States Reorganisation Act deal with\n\nallotment and transfer of State Services of the merged parts of the '- • new State.\n\n' . ..\n\nN. L. RAO v.KARNATAKA (Ray, C.J.) 331\n\n The School teachers of the former State of Mysore were allotted A to the new State of Mysore with effect from 1 January, 1956. Their age .of retiremno under the Mysore Services Regulations was 5 8 years. Some time in the year .1957 the State Government reduced their age of retirement .to 55years . .The teachers challenged the reduced age of retirement. This Court in State of Mysore v. Padmanabhacharya\n\n(1966) 1 S.C.R. 994 UJ?held the contention of the teachers that the B age of retirement as fixed by the State was illegal. It may be stated here that the State did not obtain the prior approval of the Central Government under section 115 (7) of the States RcorganisatioQ Act in regard to the reduction of the age of compulsory retirement.\n\nBy notification dated 14 April, 1966 the age of retirement of primary and s.econdary school teachers in the new State was fixed at 58 vears with effect from 5 April, 1966. The age of retirement of teachers who were allotted from other integn1ted areas was 55 years.\n\nBy nqtification dated 15 April, 1966 a uniform treatment was given to all the Primary and Secondary School Teachers of the new State\n\nof Mysore by fixing their age of retirement at 58 years. ·\n\n , D By noti(ication dated 10 July, 1970 the age of retirement of teachers in the Collegiate and Technical Education Department was raised to 58 years.\n\nBy notification dated 6 'May, 1971 the retirement age of teaching staff of the Medical and Dental Colleges and other colleges under E the Department of Health and Family Planning Services wa~ raised to 58 years.\n\nBy another notification dated 24 June, 1971 the age of retirement of the members of the teaching staff of the Law Colleges was raised to 58 years.\n\nBy another notification dated 5 August, 1972 the age of retirement of the members of the Judicial Service was raised to 58 years.\n\nThe Karnataka Civil Services (Twenty-Second Amendment) Rules, 1973 provided the age of retirement of all teachers in all the Departments except Ex-Mysore Primary and Secondary School Teachers at 55 years.\n\nThe teachers of the erstwhile local authorities were not covered\n\nby the Karnataka Civil Services {Twenty-Second Amendment) Rules, 1973 as they were governed either by contract or by special laws.\n\nThcir age of retirement was 58 years. They were asked to retire on H attaining 55 years. They filed writ petition challenging the reduction in age of retirement.\n\nThe Mvsore Service (Amendment) Regulations 1974 were promulgated on. 21 January, 1974 reducing the age of retirement of Ex- Mysore teachers from 58 to 55 years.\n\n332 SUPREME COURT REl'ORTS\n\n(1975) SUPP• S.C.R.\n\nA The Mysore Civil Service Regulations 1974 were made in exercise of the powers conferred by the proviso to Article 309 of the Constitution and with the previous approval of the Central Government under the proviso to sub-section (7) of section. 115 of the States Reorganisation Act. These Mysore Civil Service Regulations 1974 provided that every Government servant governed by the provisions of note 4 below B clause (c) of Article 294 of the Mysore Civil Service Regulations would retire on attaining the age of 55 years and those who were continued in service after attaining the age of 55 years on the date of the Regulations would retire on attaining the age of 58 years or I March, 1974 whichever is earlier.\n\nC The Mysore Civil Service (Amendment) Regulations, 1974 thus reduced the age. of retirement of Ex-Mysore teachers also to 55 years.\n\nOn 24 February, 1974 the Karnataka State Civil Services (Age of Compulsory Retirement) Rules, 1974 came into existence in exercise of powers under Article 309 of the Constitution. The Kar- D nataka State Civil Services (Age of Compulsory Retirement) Rules,\n\n197-1 provided that notwithstanding anything to the contrary contained in ai:iy Jaw,. rule, notification, order or agreement every Govcrnn1nt servant refcn-cd to in sub-rule ( 4) whose age of compulsory retirement is 58 years shall retire on attaining the age of 55 years. It was also provided by those Rules that those who continued in service after attaining the age of 5 5 years on the date of the promulgation of the E Rules would retire on the date on which they attained the age of 58 years or 1 April, 1974 whichever is earlier. It is also stated that those who will attain the age of 55 years after the commcncemeht of these Rules, hut on or before 1 April, 1974 would retire on 1 April,\n\n1974. Those who will attain 55 years after 1 April, 1974 shall retire on attaining the age of 55 years. The Government servant was defined F in 1974 Age of Compulsory Retirement Rules to mean six classes of Government servants. The three categories of teachers who are parties to these appea!S arc all covered by the Karnataka State Civil Service (Age of. Compu.lsory Retirement) Rules, 1974 which are referred to as the impugned Rulcs.\n\nThe Ex-Mysore primary and secondary school teachers contend G that they had their age of retirement at 58 years and they were protected under the proviso to sub-section (7) of section 115 of the States Rcorganisatim1 Act. The teachers of Ex-Municipal High School taken over under orders of the Government and agreements made by the Government dated 30 April. 1971 contended that their age of retirement which was applicable to the Municipal High School teachers before the date of take over was 58 years, and, therefore, they were B protected under the agreements. The teachers of elementary schools which were under the management of local bodies and which were taken over by the State Government contended that their age of retirement was 58 years before the schools were taken over by the State Government under the provisions of Karnataka Compulsory Primary Education (Amendment and Miscellaneous Provisions) Act, 1969 and their conditions would continue until other condition was made.\n\nN. L. RAO v. KARNAtAKA (Ray, C.J.) 333\n\nThe teachers of the Municipal and Taluk Development Board A High Schools which wete taken over by. the State Govenunent under written agreements made .by the relevant local body contended that they became Government servants by . the exercise of option form accepting the terms and conditions .offered by the Government in their order dated 30 April, 197 L These teachers also conte-nded that the option was incorporated in the agreement between the State Govet11\" B ment and the relevant local body under whom they were employed. The\n\nprincip~I ~Qntention of t)lese techers was that the condition which was offered by the Government atid accepted by these teachers of the relevant local body was that the conditions of service \"if these teachers\n\n\"shall not l)e altered to their disdvantagc\". One of their conditions of service before the schools were taken over by the State. Government was the age oJ rcth:cment of teachers at 58 years. Under the C impugned Rules these teachers were required to retire at the age of 55 years notwithstanding the fact that their age of retirement under the agteemcnt was 58 years. ·\n\nThe Government Order dated 30 April, 1971 stated that all employees of the Local Authorities would become Government servants with effect from the date of transfer and their conditions of service would not .be varied to their disadvantage consequent on their transfer to Government cpntrol. The Government order dated 30 April, 1971 further provided that the employees of local bodies and Secondary schools would_ be absorbed in Government service only if they agreed in writing to the forms. By the form is meant the form of option.\n\nThe form of option contained two forms. One was whereby the teachers agreed to be absorbed in Government service and the other where the teachers did not agree to be absorbed in; Government service. Those who agreed to be absorbed in Government service stated that the terms and conditions laid down by Government regarding absorption of the members of the staff of local body in Government service consequent on the take over of the local body to the control of Government were gone through and they agreed to be absorbed in Government service. The agreement between the Government and the rele\\ant school of the local body pmvided that the service conditions of teaching and non-teaching employees of the local bcdies shall not be varied to their disadvantage consequent on their transfer to Government control.\n\nAs a result of tl1e exercise of option by the teachers of the local booies they became Government servants. The term that tl)e service conditions would not he varied to their disadvantage would mean that\n\nthev would be like all other Government servants subject to Article\n\n310(1) of the Constitution. This could mean that under the law these teachers would, be entitled to continue in service. up to ihe age of supetannuation. The exercise of option does not mean that there was H a contract whereby a limitation was put on prescribing an age of superannuation. It has been held by this Court that prescribing an age of superannuation does not amount to a~ act.ion under Article.~11 of_th.e Constitution. Article 309 confers legislahve power to provide con?ttions of service. The Legislature can regulate conditions of service by law which can impair conditions_ or terms of service.\n\nA This Court in Roshan Lal Tandon v. Union of India (1968) 1 S.C.R. 185 said that there is no vested contractual right in regard to the terms of service. The legal position of a Government servant is one of status than of contract. The duties of status are fixed by law.\n\nThe terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent B of the employee.\n\nThe form of option is the contract. This exercise of option is itself the contract. The option is to be absorbed or not to be atsorl:Jed.\n\nThe contractual term is that the teacher will be absorbed as a Government servant. The term in the agreement between the Government C and the Local Body that the conditions of service will not be varied to the disadvantage of the teachers has been read by all teachers who exercised the option to be absorbed. The conditions of service referred to therein arc the conditions of service of the State of Mysore.\n\nIn B. S. Vadera v.\n\nUnion of India & Ors. (1968)\n\n3 S.C.R. 575 this Court held that if an appropriate legislature has passed an , D Act under Article 309 the Rules framed under the proviso t0 Article\n\n309 would have effect subject to that Act. In the absence of any Act of the appropciate legislature the Rules made by the President or such person as he may direct, are to have full effect.\n\nThere is legislative power under Entry 41, List H to legislate for State public services. There is no fetter on the legislative power, to E legislate with regard to service or with regarxl to any other matier\n\nmentioned in the Legislative List . .In Gurde.v Singh Sidhu v. State of Punjab & Anr. (1964) 7 S.C.R. 587 this Court stated that there were two exceptions to the protection afforded by Article 311.. One is where a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which is reasonably F fixed. The other is where a public servant is compulsorily retired un'<ler the Rules which prescribe the normal age of superannuation and provide reasonably long period of qualified service after whjch compulsory retirement could be valid. It is only when a rule is framed prescribing a proper age of superannuation and another rule is framed giving power to the State to retire a permanent public servant compulsorily at the end of 10 years of his service that this Court has apprehended G such cases to be not within the protection of Article 311.\n\nThe question of retirement age was considered by this Court in Bishun Narain Mishra v. State of Uttar Pradesh & Ors. (1965) 1 S.C.R. 693. The State Goverrunent in that case raised the age of superannuation from 55 to 58 years and again reduced the age to 55 years. It was held that there is no provision which takes away power of the Government to increase or reduce the age of superannuation.\n\nH When the rule only deals with the age of superannuation and the Government servant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of the service amounts to removal within the meaning of Article 311.\n\nIt, therefore, follows that teachers who exercised the form of option were subject to change in the conditions of service under Rules framed\n\nN. L. RAO v. KAR1'ATAKA (Ray, C.J.) ns\n\nunder Article 309. There is no constitutional limitation to. reduce the A age of retirement. A Government servant enjoys the status of a Government servant. He cannot be removed and his services cannot be terminated except in accordance with. the provisions of the Constitution. Fixing an age of retirement does not amount to removal or termination.\n\nThe teachers of primary schools conterided that their terms of service were continued by Mysore Compulsory Primary Education Act, 1969, and, therefore, their age of retirement could not be altered by rules made by the Governor under Article 309. The 1969 Act provided in. section 14 trausfer of primary schools managed by the municipal. councils and panchayats in the Madras area an<l Bellary l)istrict before the appointed day. Teachers of those schools became employees of the State Government. The crucial words in section 14(b) of the 1969 Act on which the teachers relied are these: \"All primary school teachers .................. shall, until other provision is\n\nmade, receive the salary and allowances and be subject to the condition of service to which they were entitled immediately before the appointed day\". The words \"other provision is made\". were construed by the teachers to mean an act of legislature.\n\nThe provision contained in section 14(b) of the 1969 Act is a temporary and transitio.nal provision which continues until other provision is made. The Legislature does not say until other provision is made because the Legislature is always free to legislate. The words \"until other provision is made\" mean provision which can be made by the legislature or by the Governor or the executive. The words \"until other provision is made\" do not exclusively limit to legislate.\n\nIf the legislature has occupied the field the Governor has co-equal power .. The power of the Governor is co-extensive with the legislative power (See B. S. Vaderds case (supra) at page 583).\n\nSection ! 4(b) of the 1969 Act is not a law regulating recruitment and conditions of service under Article 309. Assuming it is, Article\n\n309 does not preclude the legislature from making provision for prescribing conditions of rccruit'!lent and conditions of service by Rules.\n\nThe proviso to Article 309 contemplates that Rules regulating conditions of service may be made under an enactment. Just as it is open to the appropriate legislature to provide for rules to be framed for regulating recruitment and conditions of service under Article 309, it is equally open to the legislature to provide that in certain conditions the Governor acting under the proviso may make appropriate rules. The power under the proviso is co-extensive with the power under the main part. (See B. S. Vadera's case (supra) at pp. 585- 586).\n\nFor these reasons, the contentions of the teachers fail. The impugned legislation is constitutionally valid. The appeals are dismissed. arties will pay and bear the.ir own costs.\n\nAppeals dismissed.\n\n0 V.M.K.", "total_entities": 60, "entities": [{"text": "N. 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{"document_id": "1975_1_336_353_EN", "year": 1975, "text": "JAMILABAI ABDUL KADAR\n\nSHANKERLAL GULABCHAND & ORS.\n\nApril 30, 1975\n\nJV. R. KRISHNA IYER, R.S. SARKARIA AND AC. GUPTA, JJ.J\n\nAdrocatcs Act, 1961--Scopl' of authority of an advocate to enter into con1pron1ise on behalf of. !di client.\n\nThe appellant engaged a pleader to fight her case in a Court. The case\n\nwa~ adjourned from time to time for the parties to compose their differenc.cs.\n\nEventually, the Court re•.ordeJ a compromise, signed by the pleader of the appellant. At the time of signing the compromise, though the appellant was not present in Court, her litigation agent \\V'as present and was consulted v;; hen the order was made. The appellant later filed a suit for a declaration that the decree based on a compromise entered into by her pleader was without authority nnd was not binding on her. The suit was disniissed. The appeal \\Vas dismissed in limine by the High Court.\n\nOn appeal to this (::Ourt, it \\Vas contended that the respondent, being a tnerc pleader, had no power to compromise a suit unless expressly authorisc<l by the party.\n\nDismis.sing the appeal-\n\nHELD : (a) La\\vyers, be they advocates, vakils or pleaders, stand on the san1c footing in regard to their po\\\\•er to act on behalf of their clients. By the 1\\dyocates Act, 1961. the Jndian Bar came into existence permitting enrolment of various categories of legal practitioners like vakils and pleaders.\n\nSection 55 of the Act provides that t\\'Cry pleader, v.ho did not elect to be enrolled as an ad\\1ocate under that ,\\ct, shall continue to enjoy the same rights as respects practice in any Couit as he had before that Act came into force.\n\n[340 H, 341-Al In the instant case, though the respondent had not enrolled himself as an advocate, his rights respects practice. in any Court are what he had enjoyed under the Bombay Pleaders Act, 1920, not\\vithstanding its repenl by the Advocaes Act.\n\n[341-B].\n\n(b) Every legal practitioner is an officer of the Court and aids in the cause of justice. The responsibility of the advOcatcs to their clients and to the Court has to be the same even though some of them may be entitled to appiar only in District Courts \"''hile others in High Courts. The quality of pc>\\ver cannot stand c!i:fferentiation. [341-GH]\n\n(2) If a suitor countermand-; his pleadcr\".s authority to enter into a com-\n\nG promise or withholds, by express recital in the vakalat, the power to compromise the legal proceeding, the pleader or the advocate cannot go against snch advice and bind the principal, his client. This is as illegal as it is unprofessional.\n\n£342-FG]\n\nJiwibai v. Rarnjuwal, AIR 1947 Nag. 17, approved.\n\n(3) To act for the suitor involves myriad intricate actions often so legal that the client may not even understand the implication.\n\nRepresentation in\n\nJ-J Court may he so demanding and w transforms forensic obligation that a Jav1yer may have ethical difficulties in mechanically obcving all the directions of his principal. 1'he legal skill that is hired by the lient may, fo: _il'> very effective exercise. need an area of autonomy and quickness of decision that to 1estrict the agency to exrrcss authorisation is to ask for an unpredictable and endless enumeration of powers. To ircun1scribe the power to ac_t is to defeat the rurpos(~ of the engagement. Tt 1s pe1fect1y open to a party, like any\n\n..., .\n\nother principal; to mark out in the vakalat or by particular instructjons for- A\n\nbiddn areas or expressly \\Vithhold the right to act in sensitive matters, the choice being his, ; as the master .. Th~ legal p.rofession is a para-public institution '\"'hich 'de-serves the special confidence of and o-..ves greater responsibility to the community at large than. the ordinary nin of agency.\n\n[346-D-G, HJ\n\nSourindra ,._ lleramba, AIR 1923 PC 98, follo\\\\d. .\n\nLaxmidas Ranchhoddas v. Savitabai, [1955] 57 BLR 988, S.S. Waikcr v. L. S.\n\nWaiker, AIR 1960 Born. 20 and C. S. Nayakam v. A. N. Mc11011 AIR 1963 , B K.er. 213 approved.\n\nRonde/ v. Morsley [1969] l A. C. 191 refrred to.\n\n(4) The Advocate .or pleader has authority to act by \\vay of compromising a case iii 'vb.ich he is engaged even without specific consent from his client subject. to two overriding considerations: (iJ He must act in good faith C ctnd for the benefit of his client; otherwise the power fails. {ii) It is prudent and rroper to consult his client and take his consent if there is time and opportunity. In any case, if there is any instruction to the contrary or \\Vith~\n\ndrawal of authority, the' implicit power to compromise , in . the pleader. \\Viii fall tto the ground.\n\n[352-BJ\n\nln the present case, the pleader had acte<l substantially with the knowledge of and encou_raged by his clie!}t.\n\nTtfe several adjournments taken by the , ~D a.ppellant specifically for settling the suit speak for themselves. There is no doubt that the broad sanction for the compromise came fro1n the ap:ijellant,\n\nthat no shady action \\vas imputable to the respondent and that his conduct had been motivated by the good of his clie.nt.\n\n[352-H]\n\n[Counsel should not rush in with a compromise where due ca.re wil.I make them fear. to. tread. that a junior should rarely consent on his O\\\\'fl \\\\'hen tberc is a senior in the brief, that a party n1ay validity impunge an act of compre- E misc by his pleader if be is available for consultation but is by-passed. The\n\nla\\vyet must be above board, cspeciaI!y if he is to agree to an ad'\\'ersc verdict.]\n\n[353-C-DJ\n\nCIVIL APPEL'LATE JURISDICTION : Civil Aooeal No. 43 of 1968\n\nAppeal by special leave from the judgment ad order dated the. 11th December, 1967 of the Bombay High Court at Bombay in Second Appeal No. 1428 of 1967;\n\nV. M. Limaye, V. N. Ganp11/e, R. N. Nath and Urmila Siri1r for the aellant.\n\nY. S. Chitale and A. G. Ratnaparkhi, for respondents.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J. There is more than meets the eye in the seemingly simple legal issue raised in this cjectment suit, if we probe the deeper public and professional implications of the limitations on a. pleader's implied power to enter rnto a compromise of a case .bona fide on behalf of his client, but in his inrerest, although without his\n\nCl)l!Setlt.\n\nThe facts to use trite phraseology, fall within a narrow CO'!Jpass.\n\nThe landlords, Respondents I to. 3, brought an action for cv1ct1on of lbc tenant-appellant (Regular Swt 11~ o~ 19~4) under the rent .control law extant in Maharashtra. L!t1gat1.on !s often so h.arass1gly\n\nJon~ that even where recovery of possession 1s sought for 1mmed1at<!\n\nA bona fide need of the owner, the judicial process; takes its slow motion course that settlement of the dispute is not infrequently prefen-ed hy both sides to protracted adjudicatory justice.\n\nIn the present case, although parties had engaged lawyers and gone to trial, they took several adjournments from court to compose their differences, Th~ last\n\nsuch was granted in thes.e terms :\n\n\"19-4-65 Parties as before present\n\n\"Application by defendant for adjournment granted.\n\nSuit is adjourned for hearing to 21-4-65.\n\nSd/- R. H. MasJe.kar, Joint Civil Judge Junior Division.\"' :.-\n\nEventually, on April 21, 1965 the court r<corded a compromise, signed by the pleader o~ the tenant, giving 18 months time to give vacant possession and decreed the suit on the agreed terms. But at D heart the tenant harboured the intent to resist eviction; the impropriety of breaching she compromise was overpowered by the tempting plea of the illegality of the decree on consent. So she started some miscellaneous proceedings which were carried right upto this Court although dismissed in every court as incompetent. Then she inaugurated this, the third chapter of litigation.\n\nRegular Civil Suit No. 422 of 1966 for a declaration that the decree based on a compromise enterd E into by her pleader without authority was not binding on her and\n\nconsequently she was not liable to be dispossessed. This last spell of litigation, after the first compromise in Court, has taken long ten years. Socio-legal research may well prove that legal justice may soon reach a point of no return if fundamental structural reform of the whole forensic process were not lannched upon and frivolous F litigation scree11ed so as not to discredit faith in court justice. Anyway, in the present case, the hierarchy of courts has held against the appellant and she has come up. by special leave, conscious of adverse findings of fact by courts below, to this Court. The only point urged by Shri Limaye for the appellant is that Respondent 4 the pleader, Shri Palshikar, who signed the razi, had no authority to do so, especially because the client's consent so to do had not been secured and on G advocate-respondent 5 before us-had also been retained in the case who had neither signed the document not represented to the Court about the settlement. It is common case that the tenant was absent in court although her litigation agent was present (and consented) when the order was made.\n\nShri Limaye has raised the principal plea that Respondent 4 being }{ a mere pleader, had no power to compromise the suit unless expressly authorised by the party and here admittedly no such. express authorisation existed. He seemed to make a distinction between advocate and pleader although at some stages he read this limitation as applicable to advocates too. A second point faintly raised was prudently abandoned for the reason that it had not been set up in the pleadings or urged at earlier stages. Last minute ingenuity is not fairpl~.y in court and\n\n.r. A. KADA~ v. SHANKERLAL (Krishna Iyer, J.) 339'\n\nwe cannot and did not permit him 'lo argue that the court had no material in the recitals of the compromise to make out the mandatory grounds required under the relevant 'rent control' law for a court t0 direct dispossession of a tenant of a building. We do not examine the merits of the contention of all. ·\n\nNow to the only contention canvassed before, us. Although vintage rulings and relevant books havebeen cited and voyages to Anglo American legal systems made, we have to decide the issue in the light of Indian statutc'law and decisions against the backdrop of Indian conditions. Foreign aid is helpfo! but in law, as in life, Indian genius must speak. In this perspective, first we have to look at the pertinent provisions of the Civil Procedure Code; the Advocates Act and the Bombay Pleaders Act.\n\nEven before that we, may reproduce the terms of the compromise which resulted in the decree for eviction in the prior suit-(Regular Civil Suit No. 141 of 1964) :\n\n\"IN THE COURT OF THE CIVIL , JUDGE, JUNIOR D DTVfSTON AT JALGAON\n\nRegular Suit No. 141/64\n\nSHANKARLAL GULABCHAND-Plaintiff\n\nABDUL KADAR H. WELDER-Defendant\n\nA compromise has been arrived at mutually between the plaintiff and the defendant and it is agreed as under :-The defendant is to give to the plaintiff actual possession of the suit properties on or before . the date the 30-10-66. In case the defendant fails to deliver actual possession of the said suit properties according the plaintiff is to take actual possession of the said properties by filing a Darkhast. The defendant is liable to pay at the rate of Rs. 55.90 'the amount of the Joss sustained in the form of arrears of rent inclusive of the municipal tax and education cess subsequent to the filing of the suit, from the date 1 -4-64 until delivery of actual possession of the plaintiff, and accordingly, the defendant is to pay at the said rate the damages for the intervenrng period. In case the defendant fails to pay (the same), the plaintiff is to recover the amount by filing a Darkhast. The defendant is to bear his own costs and to pay to the plaintiff the latter's costs of this suit.\n\nThe plaintiff is to take the amount of refund in respect of the Court fee stamp that may be paid. It is agreed as above.\n\nA decree may therefore be passed in terms thereof.\n\nSd/- Shankarlal Gulabchand.\n\nSd/- R. C. Agarwal.\n\nRegular Suit No. 422/66 Produced on behalf of the plaintiff on the date 30-1-67\n\n(Signature-illegible) Advocate for the plaintiff\n\n(In English)\n\nSd/- D. B. Choudhari.\n\nAdvocate for Plaintiff. with authority to Compromise,\n\nSd/- B. H. Falashikar\n\nPlaintiff with authority to Comp.\n\nNo. 1 and 2 and plaintiff Shankarlal Gulabchand with pleader and defendant Abdul Kadar with pleader admitted before me the compromise. It is verified and admitted.\n\nSd/- R. H. Maslekar.\n\nc. J. 24-4-65\"\n\nAlth01igh the Civil Judge mentions in the order that 'defendant Abdul Kadar' with pleader admitted before him the compromise, it was not the defendant but his agent who was. actually present. Tbat D this is an error is conceded by Sri Chitalc appearing for respondents I to 3. The trial court as well as the District Court went into the question whether the plaintiff-appellant had made out that express directions were given to the pleader Shri Falshikar (respondent No. 4) not to compromise the suit and have come to the conclusion that no such positive instruction 'not to compromise' was given by the party. This being the concurrent finding of fact and the High Court having dismissed E the Second Appeal in limine we may proceed on the footing that Sri Palshikar, the pleader, hd not been affirmatively informed not to enter into a compromise.\n\nThe second question on which also both the Courts of fact have negatived the plaintiff:appellant's version is that the compromise was an act of sharp practice, a fraud played by the pleader on his client and on the court. We therefore exclude the possibility of F dubiety and assume bona {ides on the part of the pleader.\n\nWe mention this to narrow the scope of the controversy which really turns on the existence or otherwise of the implied authority of a pleader to compromise a suit in the interests and on behalf of his client although without actual reference to him where his vakalat is silent on the point.\n\nThere is no statutory provision decisive of this issue and we have to garner the principles from various factors like the status and signifi- G cance of the legal profession in society, the wider powers conferred on lawyers as distinguished from ordinary agents on account of the triuna facets of the role of an advocate vis a vis the client, the court and the public and its traditions and canons of professional ethics and etiquette.\n\nAbove all, the paramount consideration that the Bench and the Bar form a noble and dynamic partnership geared to the great social goal of administration -Of justice puts the lawyer appearing in the court in a H class by himself and to compare him with an ordinary agent may be to Jose sight of the lawyer as engineer of the rule of law in society.\n\nNational integration at the lawyer's level was statutorily achieved by the Advocates Act, 1961 wbereby the Indian Bar, with a classless orientation, came into existence permitting enrolment of various cate- gorics of legal practioners like vakils and pleaders (see s. 29). It\n\n. '\n\nJ. A. KADAR v. SHA:-!KERLAL (Krishna Iyer, J.) 3 .\\ l\n\nA must be notC<:!, however, that Shri l'alshikar has not been enrolled as au Advocate, On the contrary, the party had briefed, apart from\n\nShri Palshikar (just a pleader with a sanad under the Bombay Pleaders Act, 1920-.for short, the Bombay Act), an Advocate--Shri Khatib, 6th respondent. Section 55 of the Advocates Act provides that every pleader who docs not elect to be enrolled as an Advocate under that Act shall continue to enjoy the same rights as respects practice in any court as he had before that Act came into .force.\n\nThus his rights as respects practice in any court are what he had enjoyed under the Bombay Act, notwithstanding its repeal by the Advocates Act. Our attention was drawn to ss. 9 and 16 of the Bombay Act but neither section helps us much in regard to the controversy bearing on the\n\ncompetenc~ of a pleader, to enter into a compromise without the consent of the concerned prty. Even so, s. 9 illumines the area to some extent and the relevant portion may be extracted :\n\n\"9. No person shall appear, plead or act for any party in any ciyi! proceeding in any court unless he is a pleader as defined in this Act and is entitled and duly empowered \\o appear, plead and act for such party in such proceeding;\" 'D\n\nShri Chitale contends-and this argument has found favour with the courl~ below-that a pleader has power to act for any party and to settle a dispute involved in a suit is ancillary to or implied in thi~\n\npower to act. When he settles his client's suit k acts for him as much as he does so when he gives up a point as meritless. We will examine E this matter more in depth a little later.\n\nThere is force in the suggestion that even though a pleader or vakil might not have chosen to get himself enrolled, in their very eligibility to be enrolled as advocates, there is implicit statutory acceptance of the position that , all these categories of legal practioncrs have substantially the same powers vis-a-vis client and court.\n\nThe egalitarian ethos injected by the Advocatell Act makes for parity of powers between pleaders and advocates to act on behalf of their client. We think it right to read into the complex of provisions' bearing on legal practitioners this activist identity of power to act. After all, every legal practitioner labels apart, is an officer of the court and aids in the cause of justice. Logically and sociologically and, indeed, legally, their responsibility to their clients and to the Court have to be the same even though some of them may be entitled to appear only in District Courts while others in the High Courts. and Advocates in anv Court in the whole of the country. The quality of the power-limitations on the. courts i.n which appearance - is permissible being ignored for the time bemg--eannot stad. differentiation. This stand is reinforced by a reference to the C1v1!\n\nProcedure Code which regulates the legal process in Indian courts.\n\nOrder III, r.1, reads :\n\n\"1. Any appearance, application or act in or to any Court, required or authorised by law to be made or do.ne by a party in such Court, may, except where othetW!Se\n\nA expressly provided by any Jaw for the time being in force, be made. or done by a pany in person, or by his recognised agent or by a pleader appearing, applying or acting on the case may be, on his behalf ;\n\nWe may also read r. 4(1) of the same order:\n\nB \" ( 1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person . . \"\n\nBoth these provisions clothe the pleader with the power to act Ill any cnurt provided be has been empowered by a vakalatnama in this C bhalf. The Code has defined 'pleader' in these general terms :\n\n\"Sec. 2( 15) 'Pleader' means any person entitled to appear and plead for another in Court, a/Id includes an advocate, a vakil and attorney of a High Court.\"\n\nIt is obvious that this definition obliterates any status-wise distinction D between an advocate: and any other legal practitioner like a vakil or pleader entitled to appear in court on behalf of his client.\n\nA profession whose founding. fighting faith is equal justite under the law does not practise inequality within its fold deaf to tbe mood music of non-discrimination. •\n\nThe broad conclusion, having due regard to the perspective we E have set out right at the beginning, is that lawyers, be they Advocates, vakils t'r pleaders, stand on the same footing in regard to their power to al't on behalf of their clients.\n\nThe cases cited before us. discerningly understood, confirm the soundness of this equating principle. As earlier clarified, the sole issue is the delineation of the scope and. ambit of 'acting'. Docs the power to 'act' cover the right to settle the suit without getting the client's cor1sent, or .is it implied in the engagement ? To clear possible confusion we may straightawav state that both sides agree-and that is the undoubted law-that if a suitor countermands his pleader's authority to enter into a compromise or withholds, by express recital in the vakalat, the power to compromise the legal proceeding, the G pleader (or, for tha: matter, the Advocate, cannot go against such advice and hind the principal, his client.\n\nThis is as illegal as it is nnprofcssional.\n\nShri Limaye has relied on a few decisions-both of the Privy Council and of the Indian High Court,, in his endeavour to make out that pleaders cannot compromise suits unless expressly authorised by H the vakalatnama. To substantiate the contrary position, Shri Chitale has drawn our atN:ntion to other rulings. These citations n1ay be briefly surveyed and they are : Sourindra v. Heramba(') ; Sourendra Nath v. Taruba/a Dasi( 2); Jiwibai v. Ramjuwar (FB) ('); Supaji v.\n\n(I) A.T.R.\n\n1923 PC 98.\n\n(3) A.J.R. 1947 Nag. 17.\n\n(\") A.J.R. 1930 PC 158.\n\n• >\n\nJ. A. KADAR v. SHANKERLAJ. (Krishna Iyer, J.)\n\nNagorao('); Ratnllswami v. Jai Hind Talkies('); Govindamia! 4 v.\n\nMarhmuthu Maistry('); Laxmidas Ra11c/1hoddas V Sav1taba1( ) ; S. S. Walker v. L. S. Walker( 5 ); and C. S.\n\nNayakam v.\n\nA- N.\n\nMenon('').\n\nAlthough, on an analysis of these decisions, soe .. discodnt notes may be beard, there is substantial harmony of JUd!ial opm10n on the proposition that the different classes of _legal practitioners have the same rights in relation to the case in which they have been en gaged. Indeed, even if there be any marginal dou)'t, we. have to interpret the law in such manner as to promote the mtegration of !he Indian Bar in tune with the spirit of s. 29 of the Advocates Act which categorically states. that subject to the provisions of that Act and any rules made. thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates:\n\nShri Llmaye placed great reliance on the Judicial Committee's statement in Sourindra (supra) where Sir John Edge observed;\n\n\"A pleader; who does not hold and has not filed in the suit before the Court his client's general power of attorney authorising him generally to compromise suits on behalf of his clients, cannot be recognised by a Court .as having any authority to compromise the suit unless he has filed in the std his client's vakalatnama giving him authority to compromise the uit before the Court.\"\n\nSuperficially understood, this supports the appellant in wriggling out of the compromise, because the pleader Shri Phalsikar had not been given any authority to compromise the suit, in the vakalatnama, but we o _not !hink that this is a disability specially attaching to a pleader as d1stmgmshed from an Advocate. We go further and consider that these_ observations have to be construed in the context of the fact that in the facts of that case some of the defendants had not filed vakalatnamas at all and that, ultimately, the Judicial Committee had upheld the compromise after special valalatnamas were filed for the umeprescnted parties. The question of the powers of a pleader, as d 0stmgu,, hed from the larger powers of an Advocate did not come up for consideration in that appeal and we cannot treat the ruling as authority for the_ position taken up by the appellant.\n\n, Lord Atkin, speaking for the Judicial Committee in Sourcndra !vat!; (spra) also had to deal with agreement to compromise a suit and the nnphed power of an advocate to settle the suit on behalf of his\n\n(I) A.T.R. 1954 Nag. 250.\n\n(3) A.1.R. 1959 Mad. 7.\n\n(5) A.LR. 1960 Dom. 20.\n\n10 SC/75-23\n\n(2) A.I.R. 1956 Mad. 536.\n\n(4) [1955] 57 B.L.R. 988.\n\n(6) A.LR. 1968 Kor. 213.\n\nA client. The statement of the law is instructive and may well be extracted :\n\n\"They are of opinion that Mr. Sircar, as an advocate of the High Court, had, when briefed on behalf of the defendant, in the Court of the Snbordinate Judge of Hoogly, the implied authority of his client to settle the suit. Their Lordships have already said that he must be treated as though briefed on the trial of the suit. Their Lordships regard th('. power to compromise a suit as inherent in the position of an advocate in India. The considerations which have led to this implied power being established in the advocates of England, Scotland am! Ireland apply in equal measure to India. It is a power deemed to exist because its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client.\n\nThe advocate is to conduct the cause of his client to the utmost of his skill and understanding. He must in the interests of his client be in the position, hour by hnur, almost minute by minute, to advance this argument, to withdraw that ; he must make the final decision whether evidence\n\nis to be given or not on any question of fact ; skill in advocacy is largely the result of discrimination. These powers in themselves almost amount to powers of compromise ; one point is given up that another may prevail. But in addition to these duties, there is from time to time thrown upon the advocate the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client's behalf to receive or pay something less than the full claim or the full possible liabi- lity. Often the decision must be made at once. If further evidence is called or the advocate bas to address the Court the occasion for settlement will vanish. In such circumstances, it the advocate has no authority unless he consults his client, valuable opportunities are lost to the client.\"\n\n(emphasis, ours)\n\nG Their Lordships referred to the apparent authority that counsel has in England to compromise in all matters connected with the action. The jurisprudential basis as a branch of the Law of Agency has been thus expressed by Lord Atkin :\n\n\"Two observations may be added. First, the implied authority of counsel is not an appendage of office, a dignity added by the Courts to the status of barrister or advocate at law. It is implied in the interests of the client, to give the fullests beneficial effect to his employment of the advocate.\n\nSecondly, the implied authority can always be conntermanded by the express directions of the client. No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions\n\n• '\n\ncontrarv to the interests of his client, his remedy is to return his brief.\"\n\nThe Judicial Committee equated the Indian Advocate and his dutic> to his client in the conduct of the suit as in no wise different from those of his counter-parts in the United Kingdom :\n\n''There are no local conditions which make it less desirable for the client to have the full benefit of an advocate's experience and judgment.\"\n\nThere is an obscure passage in the judgment which, accordmg Sbri Limaye supports him : True, ihe Board has observed :\n\n\"Where the legal representative in Court of a client derives his authority from an express written authority, such as a vakalatnama, different considerations may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of the kind under discussion.\"\n\nWe are unable to see anything here to contradict the general power, actual though implied, of counsel (be he advocate or pleader) to settle the suit of his client as part of bis duty to protect the interests of his client.\n\nWe may now move on to the Indian decisions, none of which specifically uphold the absence of implied authority of a pleader qua pleader to enter into a compromise binding on his cli.ent.\n\nPerhaps the clearest pronouncei; nent against the degrading differentiation of pleaders is that by a Full Bench of the Nagpur High Court in Jiwibni (supra). After an exhaustive discussion, which F we need not repeat, the Court concluded at p. 26 :\n\n\"Our answer to the second question is that counsel in India, whether Barristers, Advocates, or pleaders, have inherent powers, both to compromise claims, and also to refer disputes in Court to arbttration, without the authority or consent of the client, unless their powers in this behalf G have been expressly counter-mantled, and this, whether the law requires a written authority to 'act' or 'plead' or not.\"\n\n(emphasis, ours)\n\nThe legal deduction is contained in these emphatic words :\n\n\"Brush unrealities aside and what do we get but a contract ? How much more is that the case in those parts of India where no solicitor intervenes and counsel and client meet face to face ? How much more when there is an actual instrument of engagement or a power of attorney ? How much more when the law requires writing ?\" (p. 24)\n\n\"The Privy Council tells us that there is inherent in the position of counsel an implicit authority to do all that is expedient, proper and necessary for the conduct of the suit and the settlement of the dispute.\" (p. 25)\n\n\"Turning next to 0.3, R. 4, consider again the case in B which a pleader is appointed simply to 'act' without any attempt to set forth the scope of his acting. (That incidentally\n\ni~ in substance the power given to the plaintiff's counsel in the case). Is compromise not an acting ?\" (p. 25)\n\nOur attention has been drawn to Supaji (supra) which, while affirming C implicit authority of an Advocate, doubts the application of the same principle to pleader.\n\nWe unhesitatingly prefer the Full Bench view (supra).\n\nA little reflection will unfold the compelling necessity of giving a comprehensive meaning to the expression 'act' and for the inclusion of all categories of legal practitioners as repositories of this D ampk agency, bound yet broadened by obligatory traditions, professional control and public confidence in the Bar as a massive social instrumentality of democracy. To act for the suitor involves myriad intricate actions often so legal that the client may not even understand the implication, sometimes so sudden that time for taking instructions is absent. Representation in court may be so demanding and so E transforms forensic obligation that a lawyer may have ethical difficnltis in mechanically obeying all the directions of his principal. The legal skill that is hired by the client may, for its very effective exercise, need an area of autonomy and quickness of decision' that to restrict the ageney to express authorisation is to ask for an unpredictable a1.1d endless enumeration of powers such as what to ask a r witness and what not to, what submissions to make and what points to give up and so on. To circumstances the power to act is to defeat the purpose of the engagement. '!'hose who know how courts and counsel function will need no education on tl1e jurisprudence of lawyer's position and powers. Of course, we hasten to enter a caveat. It is perfectly open to a party, like any other principal, to mark out in the vakalat or by particular instructions forbidden areas c or expressly withhold the right to act in sensitive matters, the choice\n\nbeing his, as the master. If the lawyer regards these fetters as inconsistent , with his position, he may refuse or return the brief. But absent speaking instructions to the contrary, the power to act takes in its wings the right and duty to save a client by settling the suit if and\n\nonly if he does so bona fide in the interests and for the advantage of his client. This amplitude of the power to act springs from the built- Il in dynamism, challenge and flux of the very operation of legal representation as felicitously expressed, if we may say so with great respect, in the noble words of Lord Atkin (Sourendra Nath's Case (supra). We may supplement the grounds for giving this wider construction by the fact that the legal profession is a para-public institution which deserves the special confidence of and owes greater responsibility to the community at large than the ordinary nm of agency.\n\n~ .\n\nTllis reasoning has been high lighted by the Kerala. High C?urt in its Full Bench decision in Nayakam {supra). Mathew J ., exanuned the English authorities and applied it to Indian conditions. The learned\n\nJudg~ observed :\n\n\"The construction of a document appointing an agent is different from the construction of a vakaJat appointing counsel. In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary implication. In the case of counsel the rule is otherwise because there we are dealing with a profession where well-known rules have crystallised through usage. It is on a par with a trade where the usage becomes an additional term of the contract, if nol contrary to the general law or excluded by express agreement.\" (p. 215)\n\nMore importantly, Mathew, J. placed accent on the special position of the Bar :\n\n\"That counsel is not a mere agent of the client wmild D be made clear if we look at the nature of his duties and relationship with the public and the court. Counsel has a tripartite relationship: one with the public, another with the court, and the third with his client. That is a unique feature.\n\nOther professions or callings may include one or two of these relationships but no other has the triple duty. Counsel's duty E to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out as practising, however unattractive the case or the client.\" (p 216)\n\nThe passages quoted from Lord Dearing M. R. in Rondds Case (1967 1 Q.B. 443) bear repetition when considering the public justice role of the Bar :\n\n\"A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defendhim to the end. Provided only that he is paid a proper fee, or in the case of a dock brief, a nominal fee. He must accept the brief, and do all he honourably can on behalf of his client. I say 'all he honourably can' because his duty is not only to his client. All those who practice at the Bar have from time to time been confronted with cases civil and criminal which they would have liked to refuse, but have accepted them as burdensome d.llty. This is the service they do to the public.\n\nCounsel has the duty and right to speak freely and independently without fear of authority, without fear of the judges and also without fear of a stab in the back from his own client. To some extent, he is a minister of justice.\"\n\n\"It is a mistake to suppose that he is the mouth-piece of his client to say what he wants : or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He mnst not consciously mis-state the facts. He must not knowingly conceal the truth.\n\nHe must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must sec that his client discloses, if ordered, the relevant documents, even those that are fatal to his case.\n\nHe must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.\"\n\n(p. 216)\n\nA Division Bench of the Bombay High Court (where Chagla C.J., spoke for the Court) takes a pragmatic view of a lawyer's powers D to settle as is reflected from the head-note which is sufficient for our purpose (see head-note in Ranchhoddas (supra);\n\n\"It is impossible for a member of the Bar to do justice to his client and to carry on his profossion according to thr. highest standards unless he has the implied authority to do everything in the interests of his client. This authority not only consists in putting forward such arguments as he thinks proper, but also to settle the client's litigation if he feels that a settlement would be in the interests of his client and it would be foolish to let the litigation proceed to a judgment.\n\nThis implied authority has also been described as an actual authority of counsel or an advocate. This authority may be !united or restricted or even taken away. If a !imitation is put upon counsel's authority, his implied or actual authority disappears or is destroyed. In such a case he has only an ostensible authority as far as the other side is concerned.\n\nWhen the actual authority is destroyed and merely the ostensible authority remains, then although the other side did not know of the limitation put upon the authority of an advocate, the Court will not enforce the settlement when in fact the client had withdrawn or limited the authority of his advocate.\"\n\nThe 1fadras decisions have not been consistent. ln Ran1a.n.va111i's Case (supra) it was observed :\n\n\"ft has been 1ald down in .far.:pati Mudaliar v.\n\nEkmnbara Muda/iar 21 Mad. 274 that it is not competent to a pleader to enter into a compromise on behalf of his client without his express authority to do so. See also Thermal Ammal v. Sokkammal 1918. Mad. 656 and Sarath Kumari Dasi v. Amulyadl:an 1923 PC 13.\n\nAs the vakalat did not give counsel authority to compromise, Kesrvaraman Chettiar and the two other directors who sail with him would uot be bound by the compromise.\"\n\n(p. 589)\n\nThe reference to 'pleader' here is not really in contradistinction to 'advocate'. But in Govindammal (supra) Ramaswami, J., after an elaborate examination of the Indian and Anglo-American cases and books sums up thus :\n\n\"An examination of these authorities and extracts from standard publications on professional conduct, leads us to the following deductions : The decisions appear to be fairly ciear that even in cases where there is no express authorisation to enter into a compromise, under the inherent authority impliedly given to the Vakil, he has power to enter into the compromise on behalf of his client. But in the present state of the clientele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of statutory backing, prudence dictates that unless express power is given in the vakalat itself to enter into compromise, in accordance with the general practice obtaining, a special vakalat should be filed or the specific consent of the party to enter into the compromise should be obtained.\n\nIf an endorsement is made on the plaint etc., it would be better to get the signature or the thumb impression of the party affixed thereto, making it evident that the party is aware of what is being done by the vakil on his or her behalf.\" (p. 12)\n\nJn the American system there is only a single class of attorneys, unlike in Great Britain, but the implied power to compromise has not been upheld.\n\nAmerican Jurisprudence S. 98 (pp. 318-320) has the following to say :\n\n\"The rule is almost universal that an attorney who is clothed with no other authority than that arising from his employment in that capacity has no implied power by virtue of his general retainer to compromise and settle his client's claim or cause of action, United States v. Beebe (1901) 180 US 343(Zl6), Holkar v. Parker (1813) 3 Law Ed. 396 (Zl 7), Golder v. Bradley (C.C.A. 4th) 233 F 721 (Z16), Anucas, 1917 A 921 (Z19) : In re Sonyder (1907) 190 :W.Y. 66 (Z20), Ward v. Orsini 1926 243 N.Y. 123 (Z21), except in situations where he is confronted with an emergency and prompt action is necessary to protect the interests of the client and there is no opportunity for consultation with him. Generally, unless such an emergency exists, either precedent special authority from the client or subsequent rati-\n\nSUP!lEME COURT REPORTS [1975] SUPP s.c.R.\n\nfication by him is essential in order that a compromise or settlement by an attorney shall be binding on his client.'\"\n\n(p. 1:!)\n\nWe are impressed by the eloquent and luminous observations of Lord Reid, if we may say so with great deference, in Rand el v.\n\nWorsley ( 1) :\n\n\"Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court, concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict, with his cuent's wishes or with what his client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses fer which there is no sufficient basis in the information in his possession, he must not withhold authorities or document< which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.\"\n\n(Cases and Materials on The English Legal System-by Geoffrey Wilson-Sweet & Maxwell-1973, p. 124)\n\nWe may now deal with the properties which may bear upon the bona {ides of the lawyer's conduct if he settles a suit, without client's F consent. Powers are one thing, prudence is another and indeed the latter sometimes bears upon the former. Mathew J set the record straight, if we may say with respect, in Nayakam (supra) :\n\n\"Although we see no reason to limit or restrict the implied authority of counsel to compromise an action or confess judgment unless expressly done so by his client, we think that both in the interest of the client and the good reputation of counsel, it is always advisable that he should get specific instructions before taking such a radical step.\"\n\n(p. 216)\n\nAnother facet of the limit on lawyer's powers is articulated in the Bombay view, if we may use that expression for convenience, the H ruling-viz., Waikar (supra)-being one relating to the implied of an advocate to compromise. Certainly, as pointed our there, the power cannot extend to matters extraneous to the action. Mudholkar J. has uttered a caution that, as far as p0ssible, irrespective of the\n\n(I) [19691 1 A.C. 191.\n\n--'/'r\n\nscope of the power the lawyer must prefer to get his client's con- A currence to the settlement. The reasons are obvious. If the compromise is not bona fide in the client's interests, the power is exceeded and it is rash to bind a party to razi without his knowledge when there is time to consult and the terms affect him adversely.\n\nThe Privy Council's observation in Sheonandan Prasad Singh v. Abdul Fate/1 Mohammed Reza (1) serve as reminder : B\n\n\"But whatever may be the authority of counsel, whether actual or ostensible, ii frequently happens that actions are compromised without reference to the implied authority of counsel at all.\n\nIn these days communication with actual principals is much easier Md quicker than in the days when the authority of counsel was first established. In their Lordship's experience both in tliis country and in India it constantly happens that counsel do not take upon themselves to compromise a case without receiving express authority from their clients for the particular terms : and that this position in each particular case is mutually known between the parties.\" (p. 22) (supra)\n\nRamaswami J., also in Govindammal (supra) in the paragraph already extracted, has referred to a disturbing aspect which must alert the public and the profession to the lurking dangers of a carte blanche to counsel to compromise a case \\Vithout client's precedent permission. The learned Judge quotes, what may be a cautionary signal. from Thenal Ammal v. Sokkummal (!LR 41 Mad. 233, 235- AIR 1918 Mad. 656) :\n\n\"It is not the ordinary duty of an Advocate to .negotiate terms, without reference to his client, with the opposite party. Such an action is calculated to place the practitioner in a false position. We do not think it is desirable that such a power should vest in him in the interest of the profession.\n\nFrom the point of view of the client, we think that it is not safe that he sho_uld be regarded by engaging a vakil to have given him authority to dispose of his right in any way he chooses. Therefore we think that the general power claimed is not in consonance with the highest ideals of the profession or of justice. For these reasons we think that a very strict interpretation should be placed upon vakalat containing pllwers of this kind.\"\n\nRamaswami, J. has adverted to the wiser alternative of counsel seeking client's consent before compromising the litigation havincr regard to the 'position in which the Bar finds itself' these days'. \"\n\n((!) AIR 1935 P.C. 119. ----\n\nA While we are not prepared to consider in this case whether an Advocate or pleader is liable to legal action in case of deviance or negligence, we mnst nphold the actual, though implied, authority of a plez.der (which is a generic expression including all legal practitioners as indicated in s. 2(15), C.P.C.) to act by way of compromising a case in which he is engaged even without specific consent from his n client, subject undoubtedly to two over-riding onsiderations : (i) He must act in good faith and for the benefit of his client ; otherwise the power fails (2) It is prudent and proper to consult his client and take his consent if there is time and opportunity. In any case, if there is any instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground. We need hardly emphasise that the bar must sternly screen to extirpate the C black-sheep among them, for Caesar's wife must be above suspicion, if the profession is to command the confidence of the community and the court. •\n\nOn the facts of the present case we have little donbt that the pleader has acted substantially with the knowledge of and encouraged D by his client. The several adjournments taken by the appellant specifically for settling the suit speak better when we read the penultimate application for postponment on this score. Exhibit 21, d/17-2-65 runs:\n\n\"In the Court of the Joint Civil Judge, J. D. at Jalgaon Reg. Suit No. 141/64\n\nE Shankarlal Gulabchand More & Ors ........................... Plaintiffs\n\nVersus\n\nA. Kadar H. Welder ........................................... Defendant\n\nThe respectful application on behalf of the Plaintiffs and the F defendant is as follows :- ,\n\nIn the said matter, talks regarding compromise are going on mutually between the plaintiffs and the defendants.\n\nThe talks have not concluded as yet. Hence be pleased to adjourn the hearing fixed for today and give another date for hearing. This is the application.\n\nG Date : 17-2-1965 Sd/- D. H. Chaudhri Advocate for plaintiff\n\nSd/- B. H. Palshikar Advocate for defendant.\n\nAllowed; Sd/- R. H. Maslekar\n\n17-2-65.\"\n\nWe feel no doubt that the broad sanction for the compromise came from the tenant, that no shady .action is imputable to respondent 4 and that his conduct has been motivated by the good of his client.\n\n' -\n\nThe last posting was for reporting the compromise. But, on that date, the Court declined further adjournment and the party being absent and away, the pleader for the appellant had no alternative but to suffer an eviction decree or settle it to the maximum advantage of his party.\n\nOrdinarily when a junior and senior appear in the case, it would be an adventurist act exposing himself to great risk on the part of the junior to report a compromise witihout consulting his senior, even assuming that the party was not available. Nevertheless, we have had an over-all view of the facts ol the present case and do not feel inclined to the view that the implied authority of the pleader has been abused .. The courts below were right in fastening the settlement of the suit upon the appellant.\n\nNevertheless, it is right to stress that counsel should not rush in with a razi where due care will make them fear to tread, that a junior should rarely consent on bis own when there is a senior in the brief, that a party may validly impugn an act of compromise by his pleader if he is available for consultation but is by-passed. The lawyer must be above board, especially if he is to agree to an adverse verdict.\n\nAs for classes of legal practitioners, we are equally clear that the tidal swell of unification and equalisation has swept away all professional sub-castes. Anyway, that is the . law. Such artificial segregations as persist are mere proof of partial survival after death and will wither away in good time. Anyway, that is our hope.\n\nWe dismiss the appeal, but in view of divided judicial opinion in E the High Courts and the Constitutional obligation of this Court under Art. 141 to resolve and settle the law we direct the parties will bear their costs in this Court.\n\nP. B. R.\n\nAppeal dismissed", "total_entities": 25, "entities": [{"text": "JAMILABAI ABDUL KADAR", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "JAMILABAI ABDUL KADAR", "offset_not_found": false}}, {"text": "SHANKERLAL GULABCHAND & ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "SHANKERLAL GULABCHAND & ORS", "offset_not_found": false}}, {"text": "JV. R. KRISHNA IYER", "label": "JUDGE", "start_char": 69, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R.S. SARKARIA", "label": "JUDGE", "start_char": 90, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "AC. GUPTA, JJ", "label": "JUDGE", "start_char": 108, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Adrocatcs Act, 1961", "label": "STATUTE", "start_char": 125, "end_char": 144, "source": "regex", "metadata": {}}, {"text": "Section 55", "label": "PROVISION", "start_char": 1386, "end_char": 1396, "source": "regex", "metadata": {"statute": null}}, {"text": "Court are what he had enjoyed under the Bombay Pleaders Act, 1920", "label": "STATUTE", "start_char": 1759, "end_char": 1824, "source": "regex", "metadata": {}}, {"text": "Advocates Act", "label": "STATUTE", "start_char": 10360, "end_char": 10373, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Advocates Act, 1961", "label": "STATUTE", "start_char": 14765, "end_char": 14784, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 29", "label": "PROVISION", "start_char": 14955, "end_char": 14960, "source": "regex", "metadata": {"linked_statute_text": "the Advocates Act, 1961", "statute": "the Advocates Act, 1961"}}, {"text": "Bombay Pleaders Act, 1920", "label": "STATUTE", "start_char": 15220, "end_char": 15245, "source": "regex", "metadata": {}}, {"text": "Section 55", "label": "PROVISION", "start_char": 15317, "end_char": 15327, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Pleaders Act, 1920", "statute": "the Bombay Pleaders Act, 1920"}}, {"text": "Advocates Act", "label": "STATUTE", "start_char": 15335, "end_char": 15348, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Thus his rights as respects practice in any court are what he had enjoyed under the Bombay Act", "label": "STATUTE", "start_char": 15560, "end_char": 15654, "source": "regex", "metadata": {}}, {"text": "Advocates Act", "label": "STATUTE", "start_char": 15690, "end_char": 15703, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 9 and 16", "label": "PROVISION", "start_char": 15732, "end_char": 15744, "source": "regex", "metadata": {"linked_statute_text": "Thus his rights as respects practice in any court are what he had enjoyed under the Bombay Act", "statute": "Thus his rights as respects practice in any court are what he had enjoyed under the Bombay Act"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 15946, "end_char": 15950, "source": "regex", "metadata": {"linked_statute_text": "Thus his rights as respects practice in any court are what he had enjoyed under the Bombay Act", "statute": "Thus his rights as respects practice in any court are what he had enjoyed under the Bombay Act"}}, {"text": "Sec. 2( 15)", "label": "PROVISION", "start_char": 18762, "end_char": 18773, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 21563, "end_char": 21568, "source": "regex", "metadata": {"statute": null}}, {"text": "Advocates Act", "label": "STATUTE", "start_char": 21576, "end_char": 21589, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 98", "label": "PROVISION", "start_char": 39011, "end_char": 39016, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(15)", "label": "PROVISION", "start_char": 45227, "end_char": 45235, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 45237, "end_char": 45242, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 141", "label": "PROVISION", "start_char": 48969, "end_char": 48977, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_1_354_360_EN", "year": 1975, "text": "UTTAR PRADESH GOVERNMENT\n\nSABIR HUSSAIN\n\nApril 30, 1975\n\n[V. R KRISHNA )YER, R. S. SARKARIA AND A. C. GUPTA, JJ .]\n\nGovern1nent of India Act, 1935-S. 240-lf covers n case of 'ren1oi:ul' also -Reasonable opportunity-Test of-If obligatory to .r:ivc reasonable opportu11ity in the case of 'retnoval' froni service.\n\nSection 240 of Government of India Act, 1935 states that no person shall be dismissed or reducd in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.\n\nArticle 311(2) of the Constitution (after the 15th 1\\n1endment) 8tates that no person shall be dismissed, removed or reduced in n1nk except <.\\fter an enquiry in \\vhich he has been informed of the charges against him :ind given a reasonable o; pportunHy of b.cing heard in respect of those charges and D where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of n1aking re.rre.sentation on the penalty proposed but only on the basis of the evidence adduced during such inquiry.\n\nThe respondent was dismissed from (iovernn1ent service in 1942. On re presentations, he was reinstated in 1948 but by the san1e order he vvas sus. pended with retrospective effect from the date of disn1i\"isal. After an inquiry, he \\vas removed from service in 1949. His suit for declaration that the order of suspension and removal were illegal and ultra rires was dis1nissed and his appenl wa<; also dismissed. The High Court allowed the appeal holding that in the absence of furnishjng a copy of the report, of the inquiry officer, the plaintiff had been denied a reasonable opportunity of showing cause against his 'removal'.\n\nOn appeal by the State to this Court it \\Vas contended that since the removal was pre-Constitutional, no protection of Art. 311 (2) could be claimed by the respondent. Section 240(3) of the Government of India Act. 1935, it was contended, would not afford any protection because the \\Vord 'removal' did not find mention in that section.\n\nDismissing the appeal,\n\nHELD : (1) The High Court was .right in holding that the respondent was G not given a reasonable opportunity to sho\\V cause against the action proposed to be taken against him and that the nonsupply of the copies of the material documents had caused serious prejudice to him in m<tking a proper representation. There was disobedience of the mandate of s. 240(3) of the Govern. mcnt of India Act, 1935 and the impugned order stood vitiated en that score olone. [360 A-BJ\n\n(2) A comparative study of s. 240(3) of the Government of India Act, H 1935 and Art. 311(2) of the Constitution of India, 1950 \\Vould show that the protection afforded by these provisions, is in nature and extent substantinlly the. same. The word 'removed' which appe;::.rs in Art. 311(2) does not find mention in s. 240(3).\n\nBut this does not mean that s. 240(3) did not cover a case of 'removal'. It is by now well settled that from the Constitutional stand-\n\n1 point, 'removal' and 'dismissal' stand on the same footing except as to future employment. In the context of s. 240(3) 'removal' and ''dismissal' from service, are synonymous terms, the former being only a species of the 1.:itter. l\\1oreover, according to the principle of interpretation laid dov. n in s. 277\n\nof the 1935 Act, the reference to dismissal in s. 240 would include a reference A to removal. [358 D-F]\n\nHir:F1 Cotnrnissioner of India v. 1. M. Lal [1948] 75 I.A. 225; Purshottan1 Lal\n\nDhi11ga v. Union of India [1958] S.C.R. 825; Khen1 chand v. Union of India [1958] S.C.R. 1080; Sh)'nm Lal v.\n\nThe State [1955] S.C.R. 25 referred to.\n\n(3) Despite th~ non-m.cntion of the word 'removal' in s. 240(3) it was obligatory for the removing authority .as soon as it tentatively decided as a B result of the enquiry, to inflict the punish1nent of\n\n1removal' to give to the employee a reasonable opportunity of sho'Wing cause against the nction proposed to be taken in regard to him. [358-0]\n\n(4) The broad test of \"reasonable opportunity\" is, whether in the given case,\n\n1 the shO\\\\' cause notice issued to the delinquent servant contained or \\Vas nccornpanied by so much information as was necessary to enable h.im to clear C himself of the guilt. if possible. even at that stage,, or, in the alternative, to show that the penalty proposed was much too harsh and disproportionate to the nature of the charge estab1ished1 against him. [359 B-C]\n\nCIVIL APPEHATE JURISDICTION: Civil Appeal No. 174 of 1968.\n\nAppeal by Special Leave from the Judgment and Order dated the D 17th August, 1967 of the Allahabad High Court (Lucknow Bench) in Second Appeal No. 155 of 1959.\n\nG. N. Dikshit and 0. P. Rana, for the appellant.\n\nR. P. Agarwal, for the respondent.\n\nThe Judgment of the Court was delivered by.\n\nSARKARIA J.-This appeal is directed against a judgment of the High Court of Allahabad declaring that the orders, 'dated 15-8-1949 and 18-5-1951, of the respondent's removal from service were illegal.\n\nThe respondent was employed as Assistant Jailor at the Central Prison, Benaras. Auditing of the accounts revealed certain shortages.\n\nThe respondent was charge-sheeted in respect of the same, and dismissed from the post on 4-7-1942. He made representations to the authorities against his dismissal. Ultimately, the Government reinstated him on 15-6-1948 but by the same order suspended him with retrospective effect from the date of his dismissal. On the basis of the enquiry held earlier into the charges against him, he was removed from service on August 15, 1949. The respondent then filed suit No. 144/ 396 of 1952 in the Court of Munsif, Lucknow, claiming a declaration that the suspension order, dated June 15, 1948, and the removal order dated, 15-8-1949, and the Government Order, 'dated 18-5-1951, upholding the removal in appeal, were illegal, ultra vires and contrary to the rules. The plaintiff further stated that he would file a separate suit for the recovery of the arrears of pay, to which he was entitled in respect of the period from 4-7-42 to 10-8-1949.\n\nThe suit was resisted by the State on various groun<Is. The trial court dismissed his suit. The First Appellate Court dismissed his appeal.\n\nA The plaintiff preferred a .second appeal in the High Court. Before the learned .Judge .of the High Court, who heard the appeal, it was contended, inter-a/ta that copies of the Enquiry Officer's report and findings were not supplied to the plaintiff and therefore he was not afforded a reasonable opportunity of showing cause in terms of Art. 311(2) of the Constitution. Jn substance, the learned Judrre seems to }j have accepted this contention when he concluded that \"in the absence of furnishing a copy of the report, it could not be saiJ that the plaintiff had been afforded a reasonable opportunity to show cause\". He, however rested this conclusion also on the ground \"that no cause . could properly be shown without a copy of the proceedings beino\n\nhanded over as provided in Ruic 5-A of the Punishment & Appeal Rules for Subordinate Services notified by the State Government under C Notification No. 2627 /Il-266 dated August 3, 1932\", (hereinafter referred to as the Appeal Rules). In the result, he a!lowed the appeal and declared the impugned orders, dated 15-8-1949 and 18-9-1951 to be void. He did not think it necessary to record any finding with respect to the suspension order, dated June 15, 1958, as the same had merged in the removal orders. Hence this appeal by special lcme by D the State.\n\nThe plaintiff-respondent has not appeared before us despite notice.\n\nMr. Aggarwal has assisted us as an?icus curiae.\n\nShri Dikshit, learned Counsel for the appellant contends that the High Court was wrong in holding that the impugned order of removal E violated the provisions of Ruic 5-A of the Appeal Rules. It is pointed out that the application of Rule 5-A to the employees of Jail Department was expressly excluded by Ruic 6 of the Appeal Rules. It is further submitted that since the removal in question was a pre-constitutional removal,· no protection of Art. 311 (2) of the C011'titution could be claimed by the respondent. Even s. 240(1) of the Govern- F ment of India Act, 1935, according to the Counsel, would not afford any protection because the word 'removal' did not find mention in that section. 'Removal', says the Counsel, is something different from 'dismissal' and the authors of the Government of India Act were aware of this difference when they did not include it in the protective provisions of s. 240. Since the impugned order, dated 10-8-1949, was only an order of removal as distinguished from dismissal, s. 240(3) was G not attracted and no opportunity to show cause against the intended removal was required to be given to the servant. It is further_ submitted that in any case, the respondent had no nght to be supplied with a copy of the report and the findings of the. Enquiry Officer on the ground that it was a requirement of natural .1ust1ce. In support of his contentions ]earned counsel has cited ~\",'urPsh R-oshy George V. The\n\nUniversity f Kerala and ors.( 1), Satish Chander Anand v. The Union J-l of India(') and State of Uttar Pradesh v. Mohammad Nooh(').\n\nOn the other hand, Shri R. P. Aggarwala submits that even if Rule 5-A of the Appeal Rules was not applicable, the respondent ws entitled to the protection of s. 240(3) of the Government of India\n\n(1) [19691 SCR 317 (2) [!953] S.C.R. 655.\n\n(3) [1958] S.C.R. 595.\n\n-···\n\nAC!, 1935. According to Counsel, the word 'dis!lllssal' used m s. 240 (3) was wide enough to cover a case of removal as a punishment. It is maintained that 'removal' and 'dismissal' in the context of s. 240(3) were synonymous terms. The argument proceeds that since the respondent was not furnished with a copy of the enquiry report and the findings recorded therein, the opportunity, if any given, was not a 'reasonable opportunity' as required by the mandatory provisions of s. 240(3). Even after making the order of removal, it is stressed, the authorities despite written requests made by the respondent, did not supply a copy of those documents to enable him to file an effective appeal/representation under the service rules to the appropriate authority. This infransigcnt attitude, says the learned amicus curiae, was also violative of the procedure prescribed in Government circular No. 47 / B8EC, dated 13-12-47, (Ex. PW 1/2) and the fundamental principles of natural justice embodied therein. Reliance in this behalf has been placed on High Commissioner of India v. T. M. Lall('), Purshotam Lal Dhingra v. Union of India ( 2), Khem Chand v. Union of lndia( 3), State of Gujarat v. R. G. Teradesai and mir. ( 4 ) Counsel further distinguished the decision in Suresh Koshy Georg~'s case (supra).\n\nThe first point to be considered is whether the safeguard in s. 240(3) of the Government of India Act 1935, was available to a civil servant in a case of 'removal' from service as a punishment? In other words, was the protection afforded by s. 240(3) less extensive\n\nthan the one given by Art. 311 (2) of the Constitution?\n\nSection 240(3) was in these terms :\n\n\"No such person as aforesaid shall be dismissed or reduced in rank until he has been given a .. reasonable opportunity of showing cause against the action proposed to be taken in regard to J:lim : F\n\nProvided that this sub-section shall not apply-\n\n( a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or\n\n(b) where an authority empowered to dismiss a person G or reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.\"\n\nArticle 311 (2) (after the 15th Amendment) runs thus :\n\n\"No snch person as aforesaid shall be dismissed or re- • moved or reduced in rank except after an enquiry in which he has been informed of the charges against him and given ---\n\n(I) [1948] 75!.A. 225. (2) [1958] S.C.R. 825.\n\n(3) (1958] S.C.R. 1080. (4) (1969] 2 S.C.R. 157.\n\na reasonable opportunity of being heard in respect of those charges and whc.rc it is proposed, after such enquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry :\n\nProvided that this clause shall not apply-\n\n(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or\n\n(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some mason, to be recorded by that authority in writ· ing, it is not reasonably practicable to hold such inquiry; or\n\n(c) where the President or the Governor, as the case may be. is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.\"\n\nA comparative study of s. 240(3) and Art. 311(2) would show that the protection afforded by these provisions, is in nature and extent, substantially the same. Of course, the word 'removed', which appears in Art. 311 (2), does not find mention in s. 240(3). But this E does not mean thats. 240(3) did not cover a case of 'removal'. It is by now well settled that from the constitutional stand-point, 'removal' and 'dismissal', stand on the same footing except as to future employment. Jn the context of s. 240(3), 'removal' and 'dismissal' from service, arc synonymous terms, the former being only a species of the latter. Moreover, according to the principle of interpretation laid down F in s. 277 of the 1935 Act, the reference to dismissal in s. 240 would include a rcferenc~ to removal (see High Commissioner of India v.\n\nI. M. Lall) (supra); Shyam Lal v. The State('); Purshottam Lal 'Dhingra v. Union of India (supra), Khem Chand v. Union of India (supra).\n\nIt is thus clear that despite the non-mention of the word 'removed' in 's. 240(3), it was obligatory for the removing authority, as soon G as it tentatively decided, as a result of the enquiry, to inflict the punishment of 'removal', to give to the employee a 'reasonable opportunity' of showing cause against the action proposed to be taken in regard to him\".\n\nIt is to be noted that the section requires not only the giving of an opportunity to show cause, but further enjoins that the opportunity H should be \"reasonable\". What then is \"reasonable opportunity\" within the contemplation of s. 240(3) ? How is it distinguished frorn an opportunity which is not reasonable? The question has to be answered in the context of each case, keeping in view the object of this provision and the fundamental principle of natural justice subserved by it.\n\n(I) [1955] SCR 26.\n\n~-4- .- ....... • I\n\n• ..\n\n• . .\n\npointed ou~ by this Cou.rt in State of Gujarat v. Teredesai (supra), the entrre Object of supplyu:g a copy of the report of the enquiring <Yffic:er is to enable the deimquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. If the enquiry officer had also made recommendations in the matter of punishment, that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer. The requirement of reasonablc opportunity, tlierefore would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant\". Thus the broad test of \"reasonable opportunity\" is, whether in the given case, the show\n\ncaue notice issued to the delinquent servant contained or was accompanitd by so much information as was necessary to enable him to clear himself of the guilt, if possible, even at that stage, or, in the illternative, to show that the penalty proposed was much too harsh and disproportionate to the nature of the charge established against him .\n\nNow let us apply this test to the facts of the present case. The case al the defendant-State in the written statement (as extracted by the Miiisif in his judgment) was :\n\n\" ...... that the accounts of the Civil Prison Benaras for the years 1939 to 1947 were audited by the Senior Departmental Auditor who detected heavy shortages whereupon the matter was thoroughly investigated and the l.G. ordered charge-sheets to be framed against the plaintiff which was accordingly done and the Superintendent, Central Prison, Bcnaras submitted the proceedings of those charges along with his comments and explanation of the plaintiff whereupon the I.G. of Prison found the plaintiff guilty of those charges and ordered his removal.\"\n\nIt is clearly discernible from what has been extractoo above that the order of the removal in question proceeded on an acceptance of the report of enquiry proceedings and \"comments\" of the Enquiry Officer, (Superintendent). Evidently, the Inspector-General who made the impugned order was influenced and guided both with regard to the G proof of charges and the prescribing of the type of punishment by the report and \"con1mcnts\" (which term will cover \"recommendations\") of the Enquiring Authority.\n\nFurther it is an uncontroverted fact found by the courts below that no copy of the report, findings and \"comments\" of the E.nuiring Officer, was supplied to the delinquent servant. Another undisputed H fact is that no copy of tire enquiry report and alhd documents was given to him, even when he applied for the same m order to file an appeal to the higher authorities against the order of_ removal .. The servant was told that he was not entitled to those copies excepting a copy of the impugned order of punishment, atid that too on payment of Rs. 3 as copying charges. ·\n\nJO SC/75-24\n\nA In view. of_ these stark facts, the High Court was right in holding that the plamtJff (respondent) was not given a reasonable opportunity to show cause against the action proposed to be taken against him and that the non-supply of the copies of the material documents had caused serious prejudice to him in making a proper representation.\n\nThere was a disobedience of the mandate of s. 240 ( 3) of the Gov- B ernment of India Act, 1935 and the impugned order stood vitiated on that score alone. Reference to Rule 5-A of the Appeal Rules, made by the High Court in support of its conclusion, was unnecessary because application of that Rule to the employees ot the Jail Department had been expressly excluded by Rule 6 of the Appeal Rules. Moreover, Rule 5-A was inserted in 1953, while we are dealing with a C removal order made in 1949.\n\nIt was contended before us by Mr. R. P. Agarwala that the removal order, dated 18-5-1951, passed by the Government of the respondent's appeal was also invalid because in violation of the basic principles of natural justice and fair play, copies of the proceedings, report and findings of the Enquiring Officer were riot supplied to D the plaintiff to enable him to file an effective appeal. There is undoubtedly force in this contention but we think it unnecessary to decide this point as the order or removal, dated 15-8-1949, being void ab initio due to non-compliance with the requirements of s. 240(3), the appellate impnnged order would automatically fall within it.\n\nBefore parting with this judgment, we place on record our appre- E ciation of the valuable assistance rendered by the learned counsel on both sides, particularly the amicus curiae, Shri Aggarwala.\n\nThe appeal fails and is dismissed without any order as to costs.\n\nP.B.R.\n\nAppeal dismissed.\n\n• I", "total_entities": 53, "entities": [{"text": "UTTAR PRADESH GOVERNMENT", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "UTTAR PRADESH GOVERNMENT", "offset_not_found": false}}, {"text": "SABIR HUSSAIN", "label": "RESPONDENT", "start_char": 26, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "SABIR HUSSAIN", "offset_not_found": false}}, {"text": "R. 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"statute": "the Constitution of India"}}, {"text": "s. 240", "label": "PROVISION", "start_char": 3377, "end_char": 3383, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 3721, "end_char": 3730, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 6577, "end_char": 6588, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 8113, "end_char": 8121, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 240(1)", "label": "PROVISION", "start_char": 8188, "end_char": 8197, "source": "regex", "metadata": {"statute": null}}, {"text": "Govern- F ment of India Act, 1935", "label": "STATUTE", "start_char": 8205, "end_char": 8238, "source": "regex", "metadata": {}}, {"text": "s. 240", "label": "PROVISION", "start_char": 8570, "end_char": 8576, "source": "regex", "metadata": {"linked_statute_text": "the Govern- F ment of India Act, 1935", "statute": "the Govern- F ment of India Act, 1935"}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 8683, "end_char": 8692, "source": "regex", "metadata": {"linked_statute_text": "the Govern- F ment of India Act, 1935", "statute": "the Govern- F ment of India Act, 1935"}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 9408, "end_char": 9417, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240", "label": "PROVISION", "start_char": 9582, "end_char": 9588, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 9719, "end_char": 9728, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 9996, "end_char": 10005, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 10885, "end_char": 10894, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act 1935", "label": "STATUTE", "start_char": 10902, "end_char": 10930, "source": "regex", "metadata": {}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 11065, "end_char": 11074, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act 1935", "statute": "the Government of India Act 1935"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 11113, "end_char": 11121, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act 1935", "statute": "the Government of India Act 1935"}}, {"text": "Section 240(3)", "label": "PROVISION", "start_char": 11148, "end_char": 11162, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act 1935", "statute": "the Government of India Act 1935"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 11816, "end_char": 11827, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act 1935", "statute": "the Government of India Act 1935"}}, {"text": "(1969] 2 S.C.R. 157", "label": "CASE_CITATION", "start_char": 12125, "end_char": 12144, "source": "regex", "metadata": {}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 13074, "end_char": 13083, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 13088, "end_char": 13099, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 13258, "end_char": 13266, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 13297, "end_char": 13306, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 13553, "end_char": 13562, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 277", "label": "PROVISION", "start_char": 13743, "end_char": 13749, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240", "label": "PROVISION", "start_char": 13797, "end_char": 13803, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 14087, "end_char": 14096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 14607, "end_char": 14616, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240", "label": "PROVISION", "start_char": 18368, "end_char": 18374, "source": "regex", "metadata": {"statute": null}}, {"text": "Gov- B ernment of India Act, 1935", "label": "STATUTE", "start_char": 18387, "end_char": 18420, "source": "regex", "metadata": {}}, {"text": "Rule to the employees ot the Jail Department had been expressly excluded by Rule", "label": "STATUTE", "start_char": 18620, "end_char": 18700, "source": "regex", "metadata": {}}, {"text": "s. 240(3)", "label": "PROVISION", "start_char": 19420, "end_char": 19429, "source": "regex", "metadata": {"linked_statute_text": "Rule to the employees ot the Jail Department had been expressly excluded by Rule", "statute": "Rule to the employees ot the Jail Department had been expressly excluded by Rule"}}]}
{"document_id": "1975_1_361_364_EN", "year": 1975, "text": "SMT. RA'INI DEVI & ANR.\n\nCHIEF COMMISSIONER, DELHI & ORS.\n\nApril 30, 1975\n\n[A. N. RAY, C.J., K. K. MATHEW, M. H. BEG ANDY. V.\n\nCHANDRACHUD, JJ.J\n\nLand Acquisition Act-Section 4, validity of-Co1npensation related to :S. 4 notification-Vagueness of public purpose.\n\nThe Government set up Town Planning Organisation in 1955 which pre~ pared an interim general Plan for Delhi in 1956. The influx of displaced per- C rons after partition of the country, the growth of slum, the problems of over- .crowding, insanitation, traffic hazards, sub-standard construction and lack of proper civic amenities Jed the Government to take effective measures. to ensure orderly and planned development of the city. The Plannin_g is to provide for different classes of people who have to live and work in the city of Delhi.\n\nThe plan has to provide for bona fide requirements of the public for residential;\n\nindustrial and commercial purposes and to ensure healthy and prOperly planned <levelopment of Delhi. The Government decided to acquire 34070 acres , of :D land in and around the city. The land was acquired after issuing notification under se.ction 4 and section 6. ·\n\nThe petitioners in the present petition contended,\n\n(1) Compensation which is related to date of notification unde1 section 4 of the Land Acquisition Act is bad.\n\n(2) The planned development of Delhi is vague and, therefore, the E acquisition is bad.\n\nDismissing the petition,\n\nHELD : (i) The question about the payment of the compensation as on the date of the section 4 notification has been held to be valid by this Court in the case of Afiatoon. There is a provision for payment of interest at the rate of 6 per cenl of. the market value after the expiry of 3 years from the date of notification under s. 4 to the date of payment of compensation. Again, any outlay er improvement made after the date of s. 4 notification with the -sanction of the Collector has to be taken into consideration in awarding oompensation. [363 C-EJ\n\n(ii) This Court has also held that the planned development of Delhi is .a public pur(X)se in Aflatoon's case. It was held in that case that in the case ()f an acquisition of a Jarge area of land comprising several plots belonging to different persons the specification of the purpose can only be with reference to acquisition of the ~1hole area. The notification which was for the acquisition of over 30,000 acres of land in the very nature of things could not specify each particular purpose and, therefore, the planned development of Delhi was of sufficient particularly. [363 G-H]\n\nORIGINAL JURISDICTION : Writ Petitions Nos. 332 and 333 of 1971. , From the judgment and order dated 13-8-1970 of the High Court of Delhi in L.P.A. Nos: 125 and 126 of 1970.\n\nD. P. Singh, (In W.P. No. 333/71) and C.A. No. 609/72), R. K. Garg, S. C. Agarwala and V. !. Francis, for appellants in appeals. '\n\nSUPREME COURT REPORTS [1975] SUPP s.c.R.\n\nA S. N. Prasad and R .· N. Sachthey, for respondents Nos. 1-3 in W.Ps. and respondents in appeals.\n\nThe Judgment of the Court was delivered by\n\n' RAY, C.J.-Thcrc arc two principal questions in these writ peti.- B tions and civil appeals. First. is compensation which is related to the\n\ndate of notification under section 4 of the Land Acquisition Act referred to as the Act bad ? Second, is planned development of Delhi bad and vague ?\n\nThis Court in Afloatoon & Ors. v. Lt. Governor of Delhi & Ors.\n\nA.LR. 1974 S.C. 2077 held that the notification :dated 13 November, C 1959 under section 4 of the Act which is also being challenged in these writ petitions and appeals is beyond challooge now. ' Piecemeal acquisition which was held to be bad in State of Madhya Pradesh & Ors. v. Vishnu Praiad Shanna & Ors.\n\n(1966) 3 S.C.R. 557 was validated by the Land Acquisition Amendment and Validation D Act with retrospective effect. The validity of the Amending Act has been upheld by this Court in Udai Ram Sharma & Ors. v. U11i01t of India & Ors. (1968) 3 S.C.R. 41 and reaffirmed in Aflatoort.'s cue\n\n(supra).\n\nThe contention that piecemeal acquisition under Notification dated E 13 November, 1959 under section 4 of the Act is bad is really a challenge to the adequacy of compensation under section 23 of the Act. The Act is protected under Article 31 ( 5) of the Constitution.\n\nWhere acquisition is for public purpose reasonableness is prerumed for such public purpose. The challenge under Article 19 of the Contitution which, according to the petitioners and the appellants, is F . directed as a result of the Bank NatioMlisation case (1970) 3 S.C.R. 530, can be restricted to procedural reasonableness.\n\nThe Government set up the Tol\\'n Planning Organisation in 1955 which prepared an interim general plan in 1956 for Delhi. The influx of displaced persons after the partition of the country, the growth of slums, the problems of over-croWc!ing, insanitation, traffic hazards, G sub-standard construction and lack of proper civic amenities led the Government to take effective measures to ensure the orderly and planned development of the city. This planning is to provide for different classes of people who have to live and work in the city of Delhi.\n\nThe plan has to provide for bona fide requirements of the public H for residential, industrial and commercial purposes. and to ensure healthy and properly planned developmeqt of Delh~ on the basis of the studies made by the Town Planning experts. The Government decided to acquire 34070 acres of land in and around the city, deve lop and then lease out the same on a non-profit non-loss basis. With this public purpose the Government issued a notification on 13 November, 1959 under section 4 of the Act.\n\nRATNI DEVI. V. CHIEF (; OMMR. (Ray, C.J.) 363\n\nThe Draft Master Plan giving the detailed rules and regulations A in respect of the \"land use\" and allied matters, was published in July,\n\n1960. In order to meet the requirements of the plan, the Government issued another notification for a further acquisition of about 16000 acres in October, 1961.\n\nOn .22 October, 1960 the Government of India issued a notifica- B tion under section 6 of the Act. The declaration was that specified land was required to be taken at public expense for a public purpose, viz., the Planned Development of Delhi.\n\nThe main contention of the petitioners and the appellants is that compensation which is to be paid with reference to the value of the property 01_1 the date of the notification is an unreasonable restriction to hold and dispose .of property. It was submitted that compensation should be paid with reference to the value of the property on the date possession of the property was taken. This question has been answered in the judgment in Aflataan's case (supra).\n\nMathew, J. speaking for the Court said that Article 31 (5) precludes such a challenge. Further, section 4(3) of the Land Acquisition Amendment and Validation Act, 1957 provided for payment of interest at 6'per cent of the market value after the expiry of three years from the dateof the notification under section 4 to the date of payment of compensation. Again, section 24 of the Act provides that any outlay or improvement on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification shall not .be taken into consideration by the Court in awarding compensation. Therefore, any outlay or improvement made with the sanction of the Collector after the date of the notification will be taken into consideration in awarding compensation.\n\nIn the Bank Nationalisation case (supra) the acquisition of property was required to pass the test of Article 19(5) on the question of procedural reasonableness. lf for instance a Tribunal is authorised to determine compensation without hearing the owner it would be exposed to vice. Section 23 of the Act does not deal with procedure, and, therefore, is not exposed to any challenge on the ground of. proceduraf unreasonableness.\n\nDeclarations under section 6 of the Act pursuant to the notification under section 4 of the Act have been held by this Court .to be\n\nvalid for acquiring the notified land for the planned devekipment of Deihl. In Aflatoon's case (supra) this Court held that the plaruied development of Delhi is a public purpose.\n\nIn Aflataon's case\n\n(supra) it was held that in the case of an acquisition of a large H area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. The notification which was for the acquisition of over 30,000 acres of land in the very nature of things could not specify each particular purpose, and, therefore, the planned development of Delhi was of sufficient particularity.\n\nSUPREMI! COURT REPORTS\n\n[1975] SUPP S.C.R.\n\nA In Aflatoon's case (supra) public purpose with regard to the planned development of Delhi has been upheld.\n\nIn Aflatoon's case\n\n(supra) the petitions which were filed in the year 1972 were held to be dilatory. The reason is that a valid notification under section 4 is a sine qua non for initiation of proceedings for acquisition of property. In the present case, section 4 notification in the year 1959 was foljowed by notification under section 6 of the Act in July, ) 960 B and again in October,\n\n1961. In Af/atoon's case (supra) it was said tha.t \"to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under section 4 and the declaration under section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting c a premium on dilatory tactics.\"\n\nFor these reasons, the petitions and the appeals are dismissed.\n\nParties will pay and bear their own costs.\n\nP.H.P.\n\nAppeals dismissed.", "total_entities": 39, "entities": [{"text": "RA'INI DEVI & ANR", "label": "PETITIONER", "start_char": 5, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "RATNI DEVI & ANR", "offset_not_found": false}}, {"text": "CHIEF COMMISSIONER, DELHI & ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "CHIEF COMMISSIONER, DELHI & ORS", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 76, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 93, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 107, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "CHANDRACHUD, JJ", "label": "JUDGE", "start_char": 127, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "Y.V. 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{"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1762, "end_char": 1766, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1863, "end_char": 1867, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 3236, "end_char": 3245, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 3505, "end_char": 3514, "source": "regex", "metadata": {"statute": null}}, {"text": "(1966) 3 S.C.R. 557", "label": "CASE_CITATION", "start_char": 3733, "end_char": 3752, "source": "regex", "metadata": {}}, {"text": "(1968) 3 S.C.R. 41", "label": "CASE_CITATION", "start_char": 3965, "end_char": 3983, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 4123, "end_char": 4132, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 4211, "end_char": 4221, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 31", "label": "PROVISION", "start_char": 4261, "end_char": 4271, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 4411, "end_char": 4421, "source": "regex", "metadata": {"statute": null}}, {"text": "(1970) 3 S.C.R. 530", "label": "CASE_CITATION", "start_char": 4557, "end_char": 4576, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 5660, "end_char": 5669, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 6108, "end_char": 6117, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 31", "label": "PROVISION", "start_char": 6783, "end_char": 6793, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 6835, "end_char": 6847, "source": "regex", "metadata": 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"Section 23", "label": "PROVISION", "start_char": 7857, "end_char": 7867, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Amendment and Validation Act, 1957", "statute": "the Land Acquisition Amendment and Validation Act, 1957"}}, {"text": "section 6", "label": "PROVISION", "start_char": 8024, "end_char": 8033, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 8080, "end_char": 8089, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 9107, "end_char": 9116, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 9215, "end_char": 9224, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 9290, "end_char": 9299, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 9536, "end_char": 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{"document_id": "1975_1_365_393_EN", "year": 1975, "text": "· ~\n\nSUPDT. OF TAXES, DHUBRI & ORS.\n\nONKARMAL NATHMAL TRUST ETC. ETC.\n\nMay 1, 1975\n\n[A. N. Rt\\Y, C.J., H. R. KHANNA. K. K. MATHEW, M. H. BEG\n\nANDY. V. CHANDRACHUD, JJ.]\n\nAssam Taxation (on goods carried by Road or Inland Waterways) Act, 1961, sub-ss. (1) and (2) of s. 7, sub-s. (4) of s. 9 and s. 11-Notice on assessee to be served within two years for filing return-Court ordering stay of proceedings under tire Act-Notice of demand for return after expiry of two years period-Notice under s. 7(2), if iflegal.\n\nConsequent upon the declaration of the invalidity of the Assam Taxation lon goods carried by Road or on Jnland Waterways) Act, 1954, by the Supreme Court in Atiabari Tea Co. Ltd. v. The State of Assam and Ors. [19611\n\n1 S.C.R. 806, on the ground that prior sanction of the Presidend was not taken, the Assam Legislature passed on April 6, 1961, the Assam Taxation (on goods carried by.\n\nRoad or on Inland Waterways) Act, 1961.\n\nThis Act was to remain in force with retrospective effect from 24 April, 1954, upto 1 March, 1962.\n\nThe respondents challenged the validity of the\n\nAc~ before the High Court of Assam in writ petitions and they applied for injunction restraining the appellants from taking any proceedings under the Act.\n\nInterim orders of injunction were passed on various dates.\n\nThe appellant~ opposed the interim orders of injunction.\n\nA common order was passed by the Court on 18-9-1961 making the orders absolute and restraining the appel!ants from taking any proceedings under the Act.\n\nThe order staying proceedings continued till the new Act was held ultra vires the Constitution by the High Court. On August l, 1963, he High Court held the new Act to be ultra vires. On the same day the High Court granted certificate of fitness to appeal to this Court.\n\nOn December 13, 1963, this Court in Khyeberi Tea Co. Ltd. & Anr v. The State\n\nuf Assam, [1964] 5 S .. C.R. 975, held the Act of 1961 to be valid.\n\nOn the strength of the certificate granted by the High Court, the State of Assrrm\n\nfiled an appeal in this Court on March 4, 1964.\n\nOn October 28, 1964, this Court granted interim stay ofl the operation of the judgment of the High Court.\n\nOn January 29, 1965, the interim stay granted by this Court was made absolute.\n\nOn April 1, 1968, this Court accepted the appeals filed by the State.\n\nthe first sub-section of section 7 requires every producer and dealer to fumish returns of manufactured tea carried in tea containers and jute CaJ:ried\n\nin bales in such forms and to such authority as may be prescribed. The second sub-section states that in case of any producer or dealer who, in .the opinion G of the Commissioner, is liable to pay tax for any return period or a part thereof, the Commissioner may serve within two years of the expiry of the aforesaid period, a notice in the prescribed form requiring him to furnish a return of goods carried and such producer or dealer shall thereupon furnish the return within the date and to the authority mentioned in the notice. Subse;:;!ion (Z) of section 9 states that if the Commissioner is not satisfied that a return furnished under section 7 is correct and complete, be shaH serve on the\n\nproducer or dealer a notice requiring him, on the date and hour and place H mentioned therein, either to attend in person or to produce or cause to be produced any evidence on which he may rely in support of his return. Sub-section\n\n(4) states that if a producer or dealer fails to make a return as required by section 7 or having made the return, fails to comply with the terms of the notice issued under sub-section (2) of s. 9, the Commiss.ioner shall, by an order in writ-\n\nJOg', assess to the best of his judgment the producer or dealer and determine~\n\nzax payable by him on the basis of such assessment. It is provided that before making assessment the commissioner may allow the producer or dealer such\n\n;}- .\n\nr -\n\nA further tie .as he thinks fit to make the return or to comply with the terms of he nohce Issued under sub-section (2) of section 9.\n\nIt _is only after thei Sta!e obtained interim order from this CoUit that notices were Issued by the Supenntendent o~ Taxes to the respondents for ffii.nc the returns for the quarters mentioned in the writ petitions.\n\nThe respondents-ttl>\"· sessees hallenged _these demand notices in the High Court on the ground that the notices were illegal and beyond the jurisdiction of the State.\n\nThe broad contention of the assessees was that tl'te State could issue. notice~ within two Years from the expiry of the return period and none of the notices was within the time mentioned in the New Act, and therefore, the State had no jurisdiction to issue the notices.\n\nThe State, on the other hand, contended that from 10 August, 1961 to 1 August, 1963 there was an order of tht) High Court\n\nlaying all proceedings, and, therefore, it was not possible to issue any notice:\n\nunti~ the State was permitted by orders of this Court to commence proceedings.\n\nThe High Court accepted the contention of the assessees. The High Col!rt held that the notices were barred by limitation in terms of the provisio11~ contained in s. 7(2) of the New Act.\n\nEach of the challenegd notices was much beyond the date of expiry of two years from the date when return should h:.tve been filed.\n\nThese appeals have been filed after obtaining special ll)ll.ve from this Court.\n\nD Dismissing the appeals,\n\nHELD : Per A. N. Ray, C. J. andY. V. Cbandrachud, J.\n\n(i) The State cannot contend that it was impossible to issue any notice within the period mentioned in s. 7(2) of the New Act.\n\nThe State did not endeavour to obtain appropriate orders to surmount the difficulties by r.euon of the injunction against taking steps within the time contemplated in s. 7{2J of the New Act. The State is guilty of default.\n\nThe State had remedie& open to take steps by asking for modification of the order. The State had to aliiert the right that the State was entitled to demand taxes and the respondent was liable to pay the same. The State followed the policy of inactivity. llilactivity\n\nis not impossibility. The order of injunction is not to be equated with 1m :a.:t of God! or an action of the enemy of the State or a general strike. [374 RD]\n\n(ii) If a return under s. 7(1) is not made, the service of a notice uudr s. 7(2) of the Act is the only method for initiation of valid assessment proceedings under the Act. The period of two years under s. 7(2) of the. New Acl is a fetter on the power of the authority and is not just a bar of time.\n\nNo assessment can be legally made under s. 9(4) of the New Act without service of a notice under s. 7(2) of the New Act within two years in case where the assessee has not Stlbmitted any return under s. 7(1) of the New Act. [375-AB]\n\nThe words \"if a producer or dealer fails to make a return as required by s. 7\" occurring in s. 9 of the New Act make it clear that s. 9 can come into operation only when there is a failure to comply with the requirements of s. 7 and not the requirements only under sub-s. ( J).\n\nReference can o~ made to s. 11 of the New Act .. Section 11 deals With escaped asset~>ment.\n\nThere is a time limit for initiating an escaped assessment under s. 11 of the New Act. The time limit is two years from the end of the return period.. It is the scheme of the Act that the service of notice within two years of the return priod is an imperative requirement for initiation of assessment proceeding as also re-assessment proceeding under the Act. [375-CD]\n\nState of Assam & Anr. v. D. C. Choudhuri & Ors., [1970] 1 S.C.R. 780, discussed.\n\n(iii) In the present case, the respondent cannot be s~.id to have waived tht; provisions of te. statut<;.\n\nThere cannot. b_e .any wawer of a statutory requirement or provision wh1ch goes to the JUnsdJctlon of assment. The\n\n, __\n\nSUPDT. TAXES V. ONKARMAL TRUST (Ray, C.J.) 367\n\n-(lri, iin of the assessment is either an assessee filing a return as contemplated A in the Act or an assessee being called upon to file a return as contemplated in the Act. The respondents challenged the Act. The order of injunction -doei not amount o a waiver of the stautory provisions. The issue of a notice under the provisions of the Act relates to the exercise of jurisdiction under the Act in all cases. [378 D-F]\n\nThe reponden!~ wen entitled to impeach the statute under which they were made liable. The; respondents have done no wrong. The respondents are B not taking any advantage of any act of theirs.\n\nThe State was entitled t.o .resist the respondents. The State did so by contending that the Act was valid, but the State took no steps -during the pendency of the litigation to take directions from the Court to serve notices of demand upon the respondents to keep alive the right of the appellants. [379 B-C]\n\nDawson's Bank Limited v. Nippon Menkwa Kabushiki Kai.sha, 62 I.A.\n\nC 100; Vellayan Chettiar v. Province of Madras 74-I.A. 223; Kammins Ballrooms Co. Ltd. v. Zenith bzvestment.s (Torquary) Ltd./1971/A.C. 850; William\n\nShcpad, v. O.E.D. Barron, 194 U.S. 553-48 L. Ed. 1115 and Re : Halltt's\n\n'Bscate Knatchbu/1 v. Hallett 13 Ch. D. 696 at page 727, referred to.\n\nPerM. H. Beg J, (Conc11rring)\n\nThe waiver, even where both sides have agreed to waive the operation of .a statutory provision, cannot extend to a case in which the effect may b:!\n\neither to oust the jurisdiction conferred by statute or to confer a jurisdiction, which according to the statute is not the['e.\n\nIn other words, if a notice under s. 7(2) of the Act is a condition precedent to the exercise of jurisdiction to make the best judgment assessment, it cannot be said that the doctrine of waiver will confer jurisdiction so as to enable parties to avoid the effect of violating a mandatory provision on a jurisdictional matter even by agreement.\n\nOn tho language of s. 11 of the Act, it is evident that in every case where 1ea or jute chargeable to tax escaped assessment for any period or has been\n\nup.der-aSiieSSed the Commissioner must take action within two years of the\n\neXpirT of the return period. It is this part of the Act which will operate •s a bar to the jurisdiction of the Commissioner to tax any escaped assessment beyond two years of the return period. Therefore quite apart from: the question\n\nwhether on the mere language of s. 7(2) and s. 9(4), a failure td issue a notice under s. 7 {2) of the Act within the period constitutes a bar to proceeding~\n\nunder 10. 9(4) of the Act, it cannot be said that a failure to i>sue such notice would not become a bar due to the clear provisions of s. 11 of the Act. This\n\nbar, at any rate, is against the exercise of jurisdiction to assess beyond the prescribed period. [389 E-F, 392 EG]\n\n\n(Per K. K. Mathew and H. R. Khana, JJ. dissenting.) (i) The respondents G obtained the orders of injunction from the Court which the Court would not have issued, had the Court known at the time that tm Act was intra vires the powers of the legislature as it ultimately turned Ollt to be by the decision of this Court. The Court issued orders of injunction on the basis of its view that the respondents has a prima facie case; but when ultimately this Court declared that the Act was valid, justice requires that the respondents shoulli not be allowed to set up the contention that they were entitled W get the noticeA within the period during which the judgment of the High Court declaring the Act ultra vires remained in operation. In other words, the res- H pondents, after having successfully prevented the Commissioner from i&suing notices by virtue of the orders of injunction obtained by them from the High Court, should not be heard to say that they were entitled to notices as they themselves made it impossible for the Commissioner to iue the notices within the period by obtaining the orders of injunction. [382 G-H]\n\n(ii) Even assuming that the provision for issue of notice within the period specmed in s. 7 (2) was mandatory and was a condition precedent for the\n\nA liability to file the returns, the respondents could have waived the benefit of it\n\nauJ, in fact, they did waive it by their conduct.\n\nThat apart, the principle of restitution requires that the party prejudiced by a wrong order of the Court +-\n\nshould be put in the position which he or it would have occupied had the wrong order not been passed. l383-HJ\n\n(iii) It was the orders of injunction and the order declaring the Act as ultra l'ires which made it impossible for the Commissioner to issue the notices\n\nwithin the period specified in s. 7 ( 2) . The respondents were bound to file the returns even though the notices were not issued to them within the period specified in ~- 7 (2). The liability to file the return was created by s. 7 (I) and as the requirement of notice within the period specified in s. 7 (2) could not have been insisted upon by the respondents, the authority empowered to make the assessment under s. 9( 4) was competent to do so. [386 GH, 387 H, 388 A]\n\n~'allaya11 Chetuar v. Province oj Madras, A.LR. 1947 P.C. 197; Graham. v.\n\nIn,:!leby [1948] 1 Exch 651, 655-56: Kammins Co. v. Zenith Investments (H.L. (E) [1971] A.C. 850; Craine v. Colonial Mutual Fire Insurance Co. Ltd. [1920] 28 C.L.R. 305 at p. 327 and Corporation of Toronto v, Russell [1908] A.C. 493, referred to.\n\nCIVIL APPELLATE JURTSDICTION : Civil Appeals Nos. 140-143 of' 1973.\n\nAppeals by special leave from the judgment and order dated the 25th September, 1972 of the Gauhati High Court in Civil Rule No. 441.\n\n442. 443 and 444 of ~968-\n\nAND\n\nCivil Appeals Nos. 262-275 of 1973\n\nAppeals by special leave from the judgment and order dated the 28th September, 1972 of the Gauhati High Court in Civil Rule Nos. 80, 82, 646 & 652 of 1969-\n\nANJJ\n\nCivil Appeal No. 687 of 1975\n\nAppeal by special leave from the judgment and order dated the 25th May, 1972 of the Gauhati High Court in Civil Rule No. 49 of 1969.\n\nAND\n\nCiFil Appeals Nos. 1161-1762 of 1973\n\nAppeals by special leave from the judgment and order dated the 22nd March, 1973 of the Gauhati High Court in Civil Rules Nos. 403 & 404 of 1969.\n\nL. N. Sinha, Sollcitor General of India (In C. As. Nos. 140- H 143, 687 & 1761-62'73), Moinul Haque Chaudhry (In C. As. Nos. 262-275/73) and S. N. Chaudhry, for the appellants. (In all the appeals).\n\nA. K. Sen, B. Sen, Leila Seth, U. K. Khatan and !. P. Bhalt:lchariee, for respondents.\n\n...\n\ni- :- . , : ~,. ..... ...\n\nSUPDT. TAXES V. ONKARMAL TRUST (Ray, C.J.) 369\n\nSachin Chaudhary, Prashanta K. Gmwami, S. R. Agarwala, B. M.\n\nA Parekh, S. Bhandare and Manju Jaitley, for respondents (In C. As.\n\nNos. 1761-62/73) and Interveners (In C. As. Nos. 140-143/1973).\n\nThe Judgment of A. N. Ray, C. J. andY. V. Chandrachud, J. was delivered by Ray, C. J., K. K Mathew, J. gave a dissenting opinion on behalf of H. R. Khanna, J. and himself. M. H. Beg, J. als-o gave B a separate opinion.\n\nRAY. C. J.-These appeals by special leave raise the question of the validity of notices of demand under the Assam Taxation (on Goods .carried by Road or on Inland Waterways) Act, 1961 hereinafter referred to as the New Act.\n\nThe Assam Taxation (on goods carried by road or Inland Water ways) Act, 1954 hereinafter referred to as the Old Act was passed by the Assam Legislature in 1954.\n\nOn 26 SeptembeJ;~ 1960 this Court declared the Old Act to be ultra vires the Constitution on the ground that prior sanction of the President was not taken. On 6 April, 1961 the New Act was passed by the Assam Legislature. The New Act was published in the Gazetteon 15 April, 1961. The New Act was to remain in force with retrospective effect from 24 April, 1954 up to 1 March, 1962.\n\nOn 28 July, 1961 the New Act was challenged by about 485 nssessees in the Assam High Court. The High Court passed an order E staying all proceedings.\n\nThe order staying proceedings continued till the New Act was held ultra vires the Constitution by the High Court.\n\nOn 1 August, 1963, the High Court held the New Act to be ultra vires. On 1 August, 1963 the High Court granted certificate of fitness to appeal to this Court.\n\nOn 13 December, 1963 on a writ application filed by M/s. Khyerbari Tea Co. Ltd. this Court held the New Act to be valid.\n\nThe decision of this Court is reported in (1964) 5 S.C.R. 975 Khyerbari Tea Co. Ltd. & Anr. v. The State of Assam •\n\nOn 4 March, 1964 the State of Assam bn the strength of the certificate granted by the High Court filed an appeal in this Court against the judgment of the High Court dated 1 August, 1963.\n\nOn 28 October, 1964 this Court granted interim stay of the operaticm of the judgment of the High Court dated 1 August, 1963. On 29 January, 1965 the interim stay granted by this Court was made absolute snbject to the condition that the assessment proceedings in respect of 485 respondents would continue but no levy would be made, and the respondents could initiate assessment proceedings in respect of\n\nthose assessees.\n\nOn 1 April, 1968 this Court accepted the appeals filed by the State Government.\n\nIt is only after the State obtained mterim order from this Court on 29 January. 1965 that notices under section _7~2) of the New.Act werf) issued.\n\nThee appeals challenged the vahd1ty of those notices'.\n\nSUPREME COURT REPORTS [1975] SUPP• S.C.It.\n\nA ln CivH Appeals No. 140-143 of 1973 notice under section 7(2) of the New Act was issued on 4 March, 1965 for the return of the quarter 1 January, to 31 March, 1962. In Crvil Appeal No. 687 of 1973 notice under section 7(2) of the New Act was issued on 4 March, 1965 for the return of the quarter 1 January to 31 March, 1962. In Civil Appeals No. 262-275 of 1973 notice under section 7(2) of B the New Act was issued on 2 August, 1965 for the return of tl:te qliarter 1 October, 1961 to 31 December, 1961. In Civil Appeals\n\no. 1761-1762 of 1973 notice under section 7(2) of the New Act was issued on 30 February, 1965 for the return of the quarte~ 1 Octo ber, 1961 to 31 December, 1961. The respondent-assessees challenged these demand notices in the High Court on the ground that the notices were illegal and beyond the jurisdiction of the State.\n\nThe broad C contention of the assessees was that the State could issue notices withi!\"! two years from the expiry of tbe return period and none of the notices\n\nwa~ within the time mentioned in the New Act, and, therefore, tl\":c State had no jurisdiction to issue the notices. Thet State, on the other hand, contended that from 10 August, 1961 to 1 August, 1963 there\n\nwas an order of the High Court staying all proceedings, and, therefore.\n\nD it was not possible to issue any notice until the State was permitted by orders of this Coutt to commence proceedings.\n\nThe High Court accepted the contention of the assessees.\n\nThe High Court held that the notices were barred by limitation in terms of the provisions contained in section 7 ( 2) of the New Act.\n\nEach E of the challenged notices was much beyond the date of expiry of two years from the date when return should have been filed.\n\nThe High Court held that the provisions contained in the Limitation Act do not apply to legislation of the type of the New Act.\n\nSection 3 of the New Act is the <; haging section.\n\nUnder that section tax is levied on (a) manufactured tea and (b) jute in bales carried by means mentioned therein. The period and the rate for taxes are specified in the Schedule.\n\nThe tax levied on manufactured tea shall be realised from the producer. The tax levied on jute shall be realised from the dealer.\n\nSection 7 of the New Act speaks of return. There are four sub- G sections of section 7.\n\nThe first sub-section requires every producer and dealer to furnish returns of manufactured tea carried in tea containers and jute carried in bales in such form and to such authority as may be prescribed.\n\nThe second sub-section states that in case of any producer or dealer who, in the opinion of the Commissioner, is liable to pay tax for any return period or a part thereof, the Com missioner may serve within two years of the expiry of the aforesaid l:l period, a notice in the prescribed form requiring him to furnish a return of goods carried and such producer or dealer shall thereupon furnish the return within the date and to the authority mentione:d in the notice.\n\nThe notices in the present appeals are issued under this sub-section (2) of section 7 of the New Act. The third sub-section states that the returns, during the first year of operation of the New Act, shall be furnished for such period and within such time as mrty\n\n.c-\n\n' { ..t\n\nSUPDT. TAXES V. ONKARMAL TRUST (Ray, C.J.)\n\nbe notified by the Commissioner and thereafter quarterly and within thirty days of completion of the quarter in respect of which the returns are to be filed.\n\nThe fourth sub-section states that if any producer or dealer discovers any omission or other error in any return furnished by l1im he may furnish a revised return at any time before assessment is made on the original return.\n\nSection 9 of the New Act speaks of assessment.\n\nThere are four sub-sections of section 9. Sub-section ( 1) states that if the Commissioner is satisfied that a return furnished by a dealer or a producer under section 7 in respect of any period is correct and complete, he shall, by an order in writing, assess the producer or dealer and determine the tax payable by him on the basis of such return. Sub-section\n\n(2) states that if the Commissioner is not satisfied that a return fur- . nished under section 7 is correct and complete, he shall serve on the producer or dealer a notice requiring him, on the date and hour and place mentioned therein, either to attend in person or to produce or\n\ncause to be produced any evidence on which he may rely in support of his return.\n\nSub-section (3) states that on the day mentioned in the notice under sub-section (2) or as soon afterwards as may be, the Commissioner, after hearing such evidence as the producer or dealer may produce and such other evidence as the Commissioner may require, shall, by an order in writing, assess the producer or dealer and determine the tax payable by him on the basis of such assessment. . Sulrsection ( 4) states that if a producer or gealer fails to make a\n\nreturn as required by section 7 or having made the return, fails to comply with the terms of the notice issued under sub-section (2) of Sf:ction 9, the Commissioner shall, by an order in writing, assess o the best of his judgment the producer or dealer and determine the tax payable by him on the basis of such assessment. It is provided that before making assessment the Commissioner rna~ allow the producer or dealer such further time as he thinks fit to make the retum or to comply with the terms of the notice issued under sub-section (2) ot section 9 .\n\nThe Rules under the New Act are framed under section 32 of the New Act.\n\nRule No. 6 states that every dealer or producer shall furnish returns of the total gross weight of jute or tea carried to the Superintendent in Form I. Rule No. 8 states that the notice referred to -in sub-section (2) of section 7 may be issued to dealer or producer who have failed to submit returns within the period mentioned sulrsection (3) of section 7.\n\nThe notices shall be in Form II.\n\nRule No. 9 states that every dealer or producer shall submit to the Superintendent every quarter a return so as to reach that officer on or before the dates therein. 30 April, 30 July, 30 October and 30 J anuarv are the dates on or before which the producer or dealer\n\nha11 submit return for the quarters preceding these dates, viz., quarters ending 31 March, 30 June, 30 September and 31 December respectively.\n\nForm No. I under Rule No. 6 mentions the name of the dealer, the return period and the details of net weight carried and amount of tax. Form No. II under section 7(2) and Rule No. 8 states that\n\n.... -,\n\nA whereas the person notified carried manufactured tea or jute as the case may be, during the period ending on the date mentioned therein and whereas the carrier is liable to pay tax he is required to furnish a return.\n\nThe New Act received the assent of the ?resident on 6 Aprll, B 1%1. It was notified in the Gazette on 12 April, 1961.\n\nThe New Act was deemed to have had effect as from 24 April, 1964 and remained in force till 31 March, 1962.\n\nSection 3 of the New Act refers to the Schedule which specifies the periotl and rate of tax.\n\nTh~ rates vary from year to year. In view of the fact that the New Act became retrospective with effect from 1954 section 7(3) of the C New Act provided that returns during the first year of operation crf\n\nthe New Act \"shall be furnished for such period and within such time as may be notified by the Commissioner and thereafter quarterly and within thirty days of completion of the quarter in respect of whici1\n\nthe returns are to be filed\". It therefore follows that the return for ti1e years during which the New Act became retrospective in operation was to furnish in accordance with the notification to be issued by the Commissioner under section 7 ( 3) of the New Act.\n\nThe present appeals do not concern that aspect of the New Act.\n\nAfter the New Act came into existence returns were to be furnished by the producers and dealers on 30 April, 30 July, 30 October and 30 January for the preceding quarters.\n\nThe provisions contained in section 7 ( 1) •Jf the New Act enjoined dealers and producers to furnish returns on E the date mentioned in the Rules for the appropriate quarters.\n\nThe provisioqs of section 7 (2) of the New Act contemplate cases wher;! the Commissioner may serve within two years of the expiry of the return period a notice upon producer or dealer who, in the opinion of the Commissioner, is liable to tax for any return period or a part thereof.\n\nF On behalf of the State the Solicitor General raised three contentions.\n\nFirst, that for the period 1 October, 1961 to 31 December, 1961 or for the period 1 January, 1962 to 31 March, 1962 the State could not issue any notice by reason of stay of proceedings granted by the High Court on 10 August, 1961. It was said that when this Court on 28 October, 1964 granted interim stay of operation of the G High Court judgment dated 1 August, 1963 it was possible for the State to issue notice. The State issued notice within two years from 28 October, 1964. It was also said that if the period of two years be counted from 13 December, 1963 when this Court pronounced the New Act to be valid in the case of Khyerbari Tea Co.\n\nLtd.\n\n(supra) the notices would be within the period of two years from 13 December, 1963.\n\nIt was emphasised by the Solicitor General H that an act of Court granting stay of the proceedings should not be permitted to . act adversely to the interest of the Sate against whom the injunction was granted.\n\n' \"\n\nThe second contention of the Solicitor General was that section 9 ( 4) of the New Act confers power on the Commissioner to assess .to the best of his .judgment if a producer or dealer fails to furnish ~\n\n. t\n\nSUI'DT. TAXES V. ONKARMAL TRUST (Ray, C.J.)\n\na return as required by section 7 or having made the return fails to comply with the terms of the notice issued under section (2) of .the\n\nNew Act.\n\nThe notice under section 9 (2) of the New Act refers to cases where if the Commissioner is not satisfied with the return furnished under section 7 he seryes a notice on the assessee to produce evidence in support of the return. The Solicitor General leaned heavily\n\non the words \"if a producer or dealer fails to make a return as required by section 7\" and contended that section 7 ( 1) of the New Act required the producer or dealer to make a return and that section 7 (2) of the New Act did not itself require the producer or dealer to make a return but only clothed the Commissioner in certain circumstances to call for a return.\n\nTherefore, the Solicitor General submitted that the condition precedent to the exercise of powerunder section 9 ( 4) of the New Act is a dfault with reference to section 7 (1) of the New Act and not the issue of a notice under section 7 (2) of the New Act.\n\nThe Solicitor General submitted that at the best section 7(1) of the New Act regulates the exercise of the power created by section 9 ( 4) of the New Act but is not the source and condition of the power.\n\nThe third contention of the Solicitor General was_ that by obtaining and enjoying . the benefit of an injunction for the relevant period expiring within the period of two years prescribed by section 7(2) of the New Act the respondent must pe deemed to_ have waived. the benefit of section 7(2) of the New Act. This was amplified' to mean that the interim injunctions in the present cases were founded on the postulate that the action restrained during the pendency of the proceedings would be and could be taken if the ground of attack ultimately failed on the conclusion of the proceedings.\n\nThe Solicitor General further submitted that a party who obtained such an injunction could not set up a plea arising solely from the injunction issued and ultimately dissolved. It was said that by reason of such injunction if a preliminary step like a notice within a particular period became impossible, it must be deemed to have been waived just as any provision intended for the protection of the property owner may be waived by him by a course of conduct where it would be unjust to permit it to be set up.\n\nThe first contention on behalf of the State that it became impossible for the State to issue notice under section 7 (2) of the New Act within two years of the expiry of the period of return is unsound on principle and facts.\n\nThe maxim lex non cogit ad impossibilia means that the\n\nlaw does not compel a man to do that _which he cannot possibly perform. In the present appeals, the applications were moved in the High Court for stay of proceedings. The respondents challenged the H validity of the Act, and, therefore, asked for an injunction restraining the State from taking proceedings under the Act.\n\nAt no stage, did the State ask for variation or modification of. the order of injunction.\n\nIt is well known that if it is brought to the notice of a court that proceedings are likely to be barred by time by reason of any order of injunction or stay the court passes such suitable or appropriate orders as will protect the interest of the parties and will not prejudice\n\nA ctther party. Even when certificate to appeal to this Court was granted on 1 August, 1963, the State did not ask for any order for stay of operation of the judgment.\n\nThat is quite often done.\n\nFor the first time, on 10 August, 1964 the State filed an application for stay of operation of the judgment of the High Court. The State did not take steps at the appropriate time. This Court on 28 October, 1964 granted B an interim order staying the operation of the High Court judgment.\n\nThe interim order was made absolute on 28 January, 1965 with certain conditions.\n\nThe State cannot take advantage of its own wrong and lac( of diligence.\n\nThe State cannot contend that it was impossible to issue any notice within the period mentioned in section 7(2) of the New Act.\n\nThe State did not endeavour to obtain appropriate C orders to surmount the difficulties by reason of the injunction against taking steps withirt the time contemplated in section 7 (2) of the New Act. The State is guilty of default.\n\nThe State had remedie8 open' to take steps by asking for modification of the order. The\n\nState had to assert the right that the State was entitled to demand D taxes and the respondent was liable to pay the same. The State followed the policy of inactivity.\n\nInactivity is not impossibility.\n\nThe order o 1 injunction is not to be equated with an act of God or an aetion\n\nof the enemy of the State or a general strike.\n\nThe second contention of the State that the State has power under section 9( 4) of the New Act to pass an order of best assessment is E unmeritorious. The provisions contained in section 7 of the New Act indicate these steps. A producer or dealer is to furnish a return for the preceding quarter on 30 April, 30 July, 30 October and 30 Januj ary.\n\nWhere a producer or dealer is liable to pay tax for any return period and he does not furnish a return, the Commissioner may, within two years of the expiry of the period, serve a notice requiring him to F furnish a return.\n\nThe provisions contained in section 9 ( 4) of the New Act with regard to best judgment assessment apply where a producer or dealer fails to make a return or having made the return fails to comply with the terms of the notice under section 9 ( 2) of\n\nthe New Act.\n\nA notice under section 9(2) of the New Act is served where the Commissioner is not satisfied with the return furnished G under section 7 of the New Act. The words ''if a producer or dealer fails to make a return as required by section 7\" occurring in section 9 of the New Act apply to failure to make a return as contemplated by both sub--sections (1) and (2) of section 7 1 of the New Act. To accede to the contention of the Solicitor General that the words \"if a producer or dealer fails to make a return as required by section 7\" occurring in section 7 of the New Act apply only to a return under sulrsection\n\n( 1) of section 7 of the New Act is. to read new words into the H legislation.\n\nIn order to have the best judgment assessment under\\ section 9 ( 4) of the New Act, there must be first a failure to furnish a return under section 7 ( 1) of the New Act or a failure. to furnish a return after notice under section 7(2) of the New Act. Further, the contention of the Solicitor General means that there will never be ; my que.\"tion of limitation of time with regard to service of notice by the Commissioner to file a return.\n\nSection 7(2) of the New Act is a section conferring power and jurisdiction on the authoritie's to tax\n\n... -\n\nSUPDT, TAXES v. ONKARMAL TRUST (R CJ . ay, .) 375 by calling upon .the producer or dealer to file a return wit . .\n\nA mentioned therem. H a return under section 7{1) . hin the time sc.rvice of a notice u.nder section 7(2) of the Act is\n\n1~ notnlmadc, the for initiation of valid assessment proceedings under th 0 ;{ method riod of two years under section 7 (2) of the New A et . ct. The on the power of the authority and is not just a bar f f a fewr asseSsment an be legy made unde_r section 9(4) of the~=~ Ae~ \\\\ithout serVICe of a not1ce under section 7(2) of the New Act witliin B two years m case where the assessee has not submitted any return under section 7 ( 1) of the New Act.\n\n-:fbe words :if a , produce~ or. deale~ fails to make a return as rcqwred by secu~:m 7 occurnng _m sectiOn 9 of the New Act make it dear that secuon can come !nto operation only when there is a C failure to comply w1th the reqwrements of section 7 and not the rcquirc_ments only under any sub-secon ( 1). Reference may be made to scctJon 11 ?f the_ Ne\": ct.\n\nSct.1n .11 deals with escaped assessmcHt. There IS a time lurut for . mitlaimg an escaped assessment under section 11 of the New Act. The time limit is two years from the end of the return period. It is the scheme of the Act that the D service of notice within two years of the return period is an imperative requirement for initiation of assessment proceeding as also re-assessent proceeding under the Act.\n\nThis Court in State of Assam & ATir. v. D. C. Choudlwri & Ors.\n\n(1970) 1 S.C.R. 780 considered the provisions of Assam Act IX of E\n\n1939. Sections 19 and 20 of the Assam Act of 1939 are pari nwuria with sections 7 and 9 of the New Act. Section 19 ( 1) of the Assam Act of 1939 required persons whose agricultural income.exceeded the lJirut of taxable income prescribed to furnish within thirty days as specified in the notice a return.\n\nSection 19(2) of the Assam Act ot 1939 stated that in the case of any person whose total agricultural F income is, in the opinion of the Agricultural Income Ta:t Ocer, of such amount as to.' render such person liabl~ to payment o[ agricultural income tax for any financial year, the Agricula: Inc'?me Tax flic:r may serve in that fioandal Y, ear a notice rcqumng him o furrush .11 return. Section 20 ( 4) of the Assam Act of _1939 provided tha~ persons failed to make a return under sub-secuon ( 1) ?r sub-secuo\n\n(2) of section 19 or failed to comply with terms of a nouce ~JDdcr sb- G &Cction (2) of section 20 or to prOduce any evidence requtred un e~ aub-section (3) of section 20 the Agricultural Income T~:t Ojgcf shall make the assessment in the best or his judgment.. Section icu!t~- thc Assam Act of 1939 provided tlmt if for any reason the A~ . ul raJ income has escaped assessment for any financial year the gnf ethel a1 • h\"n three years o ur Income Tax Ol\\iccr may Dt any time Wit l r ble to vay ta.~ 0 H en~ of that financial year serve on the person ·\n\n1~ t assess or renohce as fuUy mentioned therein and may proccc 0 asses, as stated in the section.\n\nI es received a notice in 1 n the Assam case (supra) the assess~9\n\n_50 to 1953-54.. The 961 to fu.rnish returns for the years 1Tb 9 t:reafter they rece1ved a Rssessees dtd not submit any return.\n\nI('Scns-25\n\n--·--·- -. -,. ...... __ ..... , .\n\nI , ' '\n\n·- -·~ --·\n\n: . \\ !I il ,.\n\nIJ ll\n\nll 1: • ; ' ,,\n\n~: ,,\n\nI i I I I !\n\nI ; t\n\nSUPRBM~ COVIll' JlEPORTS\n\n(1975) SUpp. S.C.R,\n\n tice of demand for payment of tax on the basis of beat judgment A ~sessment under sc:etion 20 ( ~) of the As~ am Act. The MSe:!secs\n\nwere not served with any not.Jce under section 19 (2) of the Assm Act which provided for a notice to be servd on the assessee dunng the respective financial year, nor under section 30 of the Assam Act which dealt with escaped assessment. The purchasers of .the tea estat~ B were similarly served with assessment orders under sect.!on 20(4) of the Assam Act. The purchasers were also not servd w1th any notice under section 19(2) or section 30 of the Act T~ Court held thilt if no return was made pursuant to the general_ notice under section 19(1) of the Act assessment could be m:ule aaamst an assessee under section 19(2) of the Act serving an individual notice during that financial year. Once that finan; ial yearwM ?ver and no return was made C in response to general notice under secti?n 19(1) of the Act and no .individual notice was served under section 19(2) of the Act there uld arise a case of escaped assessment. The only way to bring escaped assessment income to tax was to initiate proceedings whe'r¢ notice in accordance with section 30 was served within three years of the end of that financial year. No such proceedings were initiated in D that Assam ca.1e (supra), and therefore, the assessment order were quashed. The Assam case is an a4thority for the proposition that if no notice is served in accordance with the provisions of the Act there cannot be any initiation of assessment proceedings and there would be no jurisdiction to assess.\n\nE In the present case the notices of demand vfere illegal. The best judgment assessment which was made under section 91( 4) of the New Act would be attracted only if there was a failure to furnish a return\n\na~ contemplated in sub-sections (1) and (2) or section 7 Ol failure to comply with the terms of the notice under section 9(2) of the New Act.\n\n. The thlr_d contention of the Solicitor General is than the respondem~ wat.ved servtce of a notice within two years of the expiry of the return pcn?rl by reason' of the order of injuncton obtained by them. Waiver ts eJtlHr a form of estoppel or an election. The doctrine of estop~! by conduct mans .that where one by words or conduct wilfully causes another to be!tcvc tn th~ existence of certain state of thingS and induces G him to _act on that bel1cf, or to alter his own previous position, the\n\normc; r LS conc!ucd from av_~:ning against the latter a different state f things as exu; tmg at that ttmc. The fundamental requirement as to\n\ncstClpd by condtct Is that the estoppel must concern an existing state of facts. . Thcr~ Is no common law estoppel founded on a statement of futurh mtent!On .. The doctrine of promissory estoppel is applied to ses Y' ere .a pronuser has been estopped from acting inconsistentlY ll wt~ a _promise not to enforce an existing legal obligation. This d~\n\n~~~7~ dffers fromd estoppel properly so called in that the prescntaon\n\npan nee not be one of present fact.\n\nThe second r<:quJre R~yf an ctsopf 1 by co~uct .is that . it should be unbiguffo~; . ..-~ cnnot uc relted on tf the result of g~VJ.Jlg e 0\n\n:l; oldchl:~cthJ(l that is prohibited by law.· Estoppel is ;;;:J\n\n ne cannot found an action upon estor, .. ·\n\nSUPDT .• TAXES V. ONKARMAL TRUST (Ray, C.J.) 377\n\nEstopPel is important as a step towards relief on the hypothesis that A the defendant is estopped from denying the truth of something which he has said.\n\nIn Dawson's Bank Limited v. Nippi:m Menkwa Kabushiki Kaisha 62 Indian Appeals 100 the distinction between estoppel and waiver wae explained by stating that estoppel is not a cause of action, but B waiver is contractual and may constitute a cause of action.\n\nThe reason stated there is that waiver is an agreement to. release or not\n\nto assert a right. There is no such thing \"as estoppel by waivet\".\n\nThe two decisions on which the Solicitor General relied in support of the application of the principle of waiver in these appeals are Vellayan Chettiar v. Province of Madras 74 I. A. 223 and Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquary) Ltd. 1971 A.C . . 8.50. In Vellayan Chettiar's case (supra) it was held where the Secretary of State took objection to the sufficiency of notice under section\n\n80 of the Code of Civil Procedure in his written statement, but raised no issue on the point when issues were settled, and took no objection during the trial, the Court held that, another defendant was not competent to raise this issue at a later stage as the Secretary of State had\n\nW<lived notice.\n\nA notice under section 80 of the Code of Civil Procedure is procedural with regard to institution of a suit.\n\nA notice under section 80 of the Code of Civil Procedure is not a part of the cause of action.\n\nIn the notice under section 80 of the. Code of Civil Procedure the cause of action has to be stated.\n\nIn the case of Kammins Balrooms Co.\n\n(supra) the tenants made a request for a new-tenancy.\n\nThe landlords stated that they \\votdd oppose an application to the court for such new tenancy. When\n\nthe tenants ftled an application for grant of a new tenancy, the landlords filed an answer but took no objection to the application F being premature.\n\nThereafter the landlords wrote to the tenants that they would make a preliminary objection that the application was premature.\n\nThe County Court Judge held that section 29(3) of the relevant Act which provided time for making the applications went to the jurisdiction of the court and would not be the subject of estoppel or waiver.\n\nThe Court of Appeal affirmed that decision. The House of Lords affirmed the decision on a different ground. The G :. majority view of the House of Lords was that the requirements of section 29 ( 3) of the Act were only procedural and the landlords\n\n...-. ·-\n\nhad a right to ignore or object to the tenant's premalure application but could waive that right. The majority view further held that the landlords had not waived their right to object that the application was bad. In a statute dealing with landlords and tenants, rights and obligations are created for landlords and tenants.\n\nA procedural require- H ment imposed for the benefit or protection of one party alone has sometimes been construed as subject to implied exception that it can be waived by the party for whose benefit it is imposed. In that cont, xt, 'waive' means that the party has chosen not to rely upon the non-compliance of the other party with the requirement, or has disentitled himself from relying upm it either by agreeing with the other\n\nA party not to do so or because he has so conducted himself that it would not be fair to allow him to rtly upon the noncompliance.\n\nA distinction arises between the provision which confer jurisdic. tion and provisions which regulate procedure.\n\nJurisdiction can neither be waived nor created by consent.\n\nA procedural provision may be waived by conduct or agreement In the case of Kammins Ball- B rooms Co. (supra) it was said that waiver arises in a situation where a person is entitled to alternative rights inconsistent with one another. If he has knowledge of the facts which give rise in law to these alternative rights and acts in a manner which is inconsistent only with his having chosen to rely on one of them, the law holds him to his choice even though he was unaware that this would be legal con C sequence of what he did.\n\nHe is sometimes said to have \"waived\" the alternative right, as for instance a right to forfeit a lease or to rescind a contract of sale for wrongful repudiation or breach of condition.\n\nThis is also sometimes described as \"election\" rather than \"waiver\". Another type of waiver debars a person from raising a particular defence to a claim against him.\n\nIt arises when he either D agrees with the claimant not to raise that particular defence or so conducts himself as to be estopped from raising it.\n\nIn the present case, the respondent cannot be said to have waived the provisions of the statute.\n\nThere cannot be any waiver of a statutory requirement or provision which goes to the jurisdiction of assessment.\n\nThe origin of the assessment is either an assessee filing a re- E turn as contemplated in the Act or an assessee being called upon to file a return as contemplated in the Act.\n\nThe respondents challenged the Act.\n\nThe order of injunction docs not amount to a waiver af the statutory provisions.\n\nThe issue of a notice under the provisions of the Act relates to the exercise of jurisdiction _under the Act in aU cases.\n\nRevenue statutes arc based on public policy.\n\nRevenue sta- F tuies protect the public on the one hand and confer power on the Slate on the other.\n\nThe decision in William Shepard v.\n\nQ.E.D. Barron 194 U. S. 553 =48 L. Ed. 1115 on which the Solicitor General relied for the proposition that the constitutionality of a rule of assessment can be waived does not have any application in the present case.\n\nIn the G American decision (supra) an objection against, the frontage rule of assessment for a public improvement, prescribed by the State laws, • was not allowed to be urged to defeat the coHection of the assessments.\n\nThe reason was that the abutting owners who petitioned for the improvement under the Act, actively participated in carrying out tha\n\nwork, recognized the justice of the assessments from time to time during its progress, and signed a statement for the purpose of inducing H the issuance and purchase of country improvement bonds to the effect that the work had been properly done.\n\nIn the American decision\n\n(supra) the work was done at the instance and request of the owners.\n\nThe Court found an implied contract arising from facts that the party at whose request and for whose benefit the work had been done would pay for it in the manner provided for by the Act under which the work was done. i-\n\nSUPDT. TAXES v. ONKARMAL TRUST (Mathew, J.) 379\n\n' It is against principle to suggest that the appellants did anytWng A wrong or they are taking advantage of anything wrong. Jesse}, M. R. :in Re. Hallet's Estate Knatchbull v. Hallett 13 Ch. D. 696 at page 727 said \"Now, first upon principle, nothing can be better settled, either in our own law, or, I suppose, the law of all civilicd countries,\n\nthan this, that where a man does an act which may be rightfully performed, he cannot say that that act was intentionally and in fact done B wrongly\". The respondents were entitled to impeach the statute under which they wert; made I1ablc. The respondents have done no wrong.\n\nThe respondents are not taking any advantage of any act of theirs.\n\nThe State was entitled to resist the respondents.\n\nThe State did so by contending that the Act was valid, but the State took no steps dcuring the pendency offdthe td\"Iligationhto take 11 directikons falrm thhe\n\nC . om t to serve nob~-es o cman upon t e appe antsto eep tve t e right of the respondents.\n\nFor these reasons, the contentions of the Solicitor General faiL 'The appeals are dismissed.\n\nParties will pay and bear their own costs.\n\nMATHEW J. In these app<:als, by special leave, the question for consi&ration is whether the High Court of Assam was right in quashing the notices issued to the respondents on the dates specified in each of the writ petitions filed by the respondents.\n\nThe notices were issued under the Assam Taxation (on Goods E Carried by Road or on Inland Waterways) Act, 1961 (hereinafter caHed 'the Act') passed by thelegislature of Assam on 6-4-1961 with retrospective effect from 24-4-1954 and published in the gazette on 15~4-1961. The .Act was to be operative upto 1-3-1962. It was passed conscqU'ent upon the declaration of the invalidity of the Assam Taxation (on Goods Carried by Road or on Inland Waterways) Act, 1954, by this Court in Atiabari Tea Co. Ltd. v. The F State of Assam and others(!).\n\nThe respondents challenged the validity of the Act before the High Court of Assam in writ petition and they applied for injunction restraining the appellants from taking any proceedings under the Act.\n\nInterim orders of injunction were passed on various cates.\n\nThe appellants opposed the interim orders of injunction.\n\nA common order was passed by . the Court on 18-9- G\n\n1961. Making the orders absolute and restraining the appellants from taking any proceedings under the Act.\n\nThereafter, in some of the cases the appellants did not oppose the orders of interim injuntion as it would have been a futile exercise and the interim orders in these cases were also made absolute.\n\nThe High Co1:1rt allowedthe writ petitions on 1-8-1963 and dec- Jared the Act ultra vires the powers of the legislature and granted cer- H tificates of fitness to appeal to this Court.\n\nMfs. Khyerbari Tea Co. Ltd. and another approached this Court under Article 32 of the Costitution praying for a declaration that\n\n-1.\n\n(1) [1961] 1 S. C. R. 809.\n\nA the Act was ultra vires the powers of Assam Legislature and this Court by its judgment dated 13-12-1963 hclo that the Act was tvalid(l).\n\nAgainst the decision of the High Court declaring the Act ultra vires, the State of Assam filed appeals before this Court on 4-3-1964 and applied for stay on 10..8-1964 and interim stay of the order of the High Court declaring the Act ultra vires was granted on 28-10-1964 and the orders of stay were made absolute on 29-1-1965.\n\nThis Court allowed the appeals filed by the appellants on 1-4-1968 dec1aring the Act to be valid.\n\nNotices were issvcd by the Superintendent of Taxes to the rcs- C pondents on various dates specified in the respective writ petitions after this Court passed orders staying the operation . of the order of the High Court for filing the returns for the quarters mentioned in the writ petitions.\n\nThese were the notices that the respondents successfully challanged before the High Court.\n\nThe question which arose for consideration before the High Court D of Assam was, whether, since no notices were issued within the time specified in s.7 (2) of the Act, the respondents could be called upon to file returns.\n\nBefore we proceed to consider the qttestion, it is necessary to set out the relevant provisions of the Act.\n\nThe Act is an Act to levy a tax on goods carried by vehicles.\n\nSection 3 ( 1) is the charging section and it says that subject to the provisions of the Act, there shall be levied a tax on (a) manufactured tea and (b) jute in bales carried by motor vehicle, cart, trolley~ boat, animal and human agency or any other means except railways and airways in such manner and in respect of such period and at such rate as specified in the scheeole.\n\nSub-sections 0) and (2) of s.7 read:\n\n\"(1) Every producer and dealer shall furnish returns of manufactured tea carried in tea containers and of jute carried in bales in such form and to such authority as may be prescribed.\n\n' (2) In the case of any producer or d-ealer who, in the opinion of the Commissioner, is liable to pay tax for any return period or a part thereof, the Commissioner may serve within two years of the expiry of the aforesaid period, a notice in the prescribed form upon him requiring him to furnish a return of goods carried and such producer or dealer shall thereupon furnish the return within the date and to the authority mentionedin the notice.''\n\nSection 9(4) provides:\n\n\"If a producer or dealer fails to make a return as required by s.7 or having made the return, fails to comply\n\n(1) See Kh; erba Tea Co.\n\nLtd. & Another v The State of Assam, (1964]\n\n5 S.C.R. 1975.\n\n>· -\n\nSUPDT, TAXES V. ONKARMAL TRUST (Mathew,!.)\n\nwith the terms of the notice issued under sub-section (2) .of this Section, the Commissioner shall, by an order in writing, assess to the best of his judgment the producer or dealer and eetermine the tax payable by him on the basis of such., assessment;\n\nProvided that before making assessment the Commissioner may allow the producer or dealer such further time as he thinks fit to make the return or to comply with the\n\nterms of the notice issued under sub-section (2) of this section.\"\n\nThere is no dispute between the parties that the two-year period specified in s.7(2) expired on 31-12-1963 and that all the impugned C notices were issued after the expiry of that period.\n\nThe High Court was of the view that since no notices were issued to the respondents by the Commissioner within the period specified in s.7(2), the respondents were not liable to furnish returns.\n\nThe High Court held that the issue of notices within the period specified\n\nin the s11b-section was a condition for the exercise of the power to D caU for returns.\n\nThe learned Solicitor General appearing for the appellants submitted that it was on account of orders of injunctions passed by the High Court that notices could not be issued to the respondents by the Commissioner and that before the period for the issue of notice E unecr s. 7 (2) expired, namely, 31-12-1963, the High Court had declared the Act to be ultra vires the powers of the legislature which completely disabled the Commissioner from issuing the notices within the period specified in the sub-section.\n\nAccording to the Solicitor General, s.7<2) postulates ability on the part of the Commissioner to issue notices during the two-year F\n\npriod as required by the sub-section and therefore it cannot apply to a case where it was rendere~ impossible for the Commissioner to issue the notices within that period by an act of the Court.\n\nHe submitted that the liability to submit the return was created by s. 7(1) and that issue of notice under s.7 (2) was only a step in the procedure for making the assessment and therefore if a dealer failed to make the return in accordance with s.7 which, of course, would inc- G 1udc the liability created by s. 7 ( 1) to file the return, it would be open to the appropriate officer to assess the dealer to the best of his judgment under s.9 ( 4) and therefore, even if no notice under s.7(2) was issued within the two-year period, that would not in any way disable the officer concerned to make a besHU'dgment-assessment\n\nll'nder s.9( 4). He further submitted that by obtaining and enjoying the benefit of the orders of injunction, the respondents must be deem- H ed to have waived their right to insist upon the notices within the period specified in s.7(2). He contended that after having successfully prevented the Commissioner from issuing the notices within the\n\nperiOd by obtaining the orders of injunction, the respondents should not be heard to say that they were entitled to notices within the period specified in s.7(2) of the Act.\n\nA On the other hand, it was argued on behalf of the respondents that issue of notice within the period specified in s.7(2) was a condition for the exercise of the juris(iction to make the assessment and as no notices were issttcd within the period specified in s. 7 ( 2), the condition precedent for the liability to file returns was not fulfilled and there was, therefore, no liability for the respondents to file re- B turns, or power in the authorities to make assessments.\n\nIn other words, the argument for the respondents was that s. 7 ( 1) by itself did not create any liability to submit the return within any period, that the liability to submit the return could arise only when the Commissioner issues the notice within the period specified in s.7(2) .and, since no such notices were issued to the respondents before the ex:piry of two years from the date specified in s.7(2), the Commis- C sioner became functus officio both for the reason that the period o{ two years specifieC. in s.7(2) had expired and also for the reason that the operation of the Act came to an end and that they could not, therefore, be assessed to tax.\n\nThey also contended that by approaching the High Court and obtaining orders of injunctions, they never waived their right to insist upon the notice within the period.\n\nD They submitted, by approaching the Court and obtaining the orders of injunction, they were exercising their rights as ordinary citizens and no inference of waiver of their right to the notices withinthe period specified in s.7(2) would be permissible.\n\nThe question for consideration is whether, the respondents, after having obtained the orders of injunction from the Court restraining the appellants from taking any proceedings uneer the Act and thereby prevented the Commissioner from issuing the notices during the period could, thereafter, insist upon the notices within that period as a condition for their liability to file the returns or for the authorities for making the assessments, and whether the Commissioner could have issued the notices before the appeals were preferred against the order of the High Court declaring the Act as invalid and stay of that order was obtained from this Court.\n\nThe respondents obtained the orders of injunction from the Court which, the Court would not have issued, had the Court known at the time that the Act was intra vires the powers of the legislature as it ultimately turned out to be by the decision of this Court. The G Court issue\"d the oreers of injunction on the basis of its view that the respondents had a prima facie case; but when ultimately this Court declared that the Act was valid, jl1Stice requires that the respondents should not be allowed to set up the contention that they were entitled to get the notices within the period during which the injunction oreers operated or within the period during which the judgment of the High Court declaring the Act ultra vires remained m H operation. In other words, the respondents, after having successfully prevented the Commissioner from issuing notices by virtue of the orders of injunction obtained by them from the High Court, should not be heard to say that they were entitled to notices as they themselves made it impossible for the Commissioner to issue the notices within the period by obtaining the orders of injunction. When the orders of injunction were passed by the Court restraining t'he\n\n.• 4+-•· . ~· ..\n\nSUPDT. TAXES v. ONKAR~AT, TRUST (Beg, J.) 383\n\nappelants from taking any proceedings under the Act, could the Com- A missioner have issued the notices?\n\nClearly not. lf it was impossible for the Commissioner to issue the notices to the respondents within the period by virtue of the orders of injunction, could the law insist upon the issue of the notices within that period?\n\nAgain, the answer mU'St be 'no'.\n\nAnd, the Commissioner could not have issued the n, otices after the High Court, by its order, declared the B Act to, be invalid until the operation of that order was stayed by this Court.\n\nThe law in its most positive and peremptory injunctions, is under~ stood ro disclaim, as it coes in its general aphorisms, all intention of compelling performance .of that which is impossible. \" ... where the law creates a duty or charge, and the party is disabled to perform C it, without any default in him, and has no remedy over, there the Jaw will in general excuse him; and though impossibility of perform~ ance is in general no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obliga~ tion is one implied by law, impossibility of performance is a gooo\n\nexcuse.\" (see Broom's Legal Maxims, lOth ed. (1939)pp. 162~ D 163). The same principle has been stated in Craies on Statute Law (6th ed, p. 268):\n\n\"Under certain circumstances compliance with the pro~ visions of statutes which prescribed how something is to be done will be excused. Thus, in accordance _with the maxim of Law, Lex non cogit ed impossibilia, if it appears that the E performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God or . the King's enemies, these circumstances will be taken as a valid excuse\"-\n\nF We think the circumstance that the appellants were prevented by the orders of injunction from taking any proceedings under the Act coupled with the fact that -the High Court declared the Act to be invalid, made it impossible for the Commissioner to issue the notiCes within the period specified in s.7C2).\n\nThere is no reason to cistinguish between an Act of God or King's enemies preventing an act being done and the circumstances here which put it beyond G the control of the Commissioner to issue the notices.\n\nIt was argued for the respondents that issue of notices witlnn the period specified in ~.7(2) wa~ a conitim for lia?ility to le .t?e\n\nreturn and since no notices were tssued wtthm the penod, the hablity to file the return die not arise and the Court cannot extend the time for issuing the notices.\n\nLet us assume that the provision for issue of notice i!hin the period specified in s.7(2) was mandatory and was a condthon pre~ <:edent for the liability to file the rturns. . Even so, the espodens\n\ncould have waived the benefit of 1t and, m fct, they dt~ wate _It\n\n-L. by their conduct.\n\nIn other words, even if the 1ssuc of nottccs wtthm\n\nA the period provided in s.7(2) was mandatory and no liability to file ._. tl1c returns arose until the notices were issued, the responeents could have waived the benefit of the notices as the issue of notices was only fqr the benefit of the respondents and did not subserve any principle of public policy.\n\nB In Vellavm~ Chettiar v. Province of Madras (1) the question arose whether notice under the provision of s. 80 of the Civil Proccdurt; Code was mandatory and coule be waived by the party entitled to it.\n\nThe Privy Council said that although the provision for issue of notice was mandatory, the party which was entitled to the benefit of notice coule waive it.\n\nThe language of s. 7(2) is, no doubt, mandatory, but the sub-section was not enacted on the basis of any public policy.\n\nC Its purpose is only to give a dealer notice of his duty to submit the rettrrn created by sub-section (1) of s. 7.\n\nWhenever a statute makes the performance of an act within a specified period mandatory and it is seen from the provisions of the statute that the performance of the act within the period is solely for the benefit of a party and no question of public policy is involved in its performance within period, D it has been held that the party entitled to insist upon its performance within the period can waive it.\n\nAs the issue of notice within the period specified in s. 7(2) is clearly for the benefit of the dealer and if he, by his conduct, evinces an intention that he will not insist upon it, then it will be inconsistent with all notions of justice to hold that he should be allowed to insist upon it.\n\nThe respondents clearly knew when they applied and obtained the orders of injunction that E the Commissioner would be disabled from issuing the notices under s. 7 (2) during the period of the operation of the orders of injunction.\n\nAnd the law made it impossible for the Commissioner to issue the notice as long as the order of the High Court declaring the Act a!l invalid remained in operation.\n\nHow then could the Commissioner have issued the notices to the respondents within the period specified F ins. 7(2) ?\n\nIn Graham v. lngleby (~), the question was whether the statute 4 Anne, c. 16, s. 1 1, which enacted that \"no dilatory plea shall be received in any court of record, unless the party offering such plea, do, by affidavit, prove the tmth thereof, or as how some probable matter to the court to induce them to believe that the fact of such dilatory plea is true\" was for the benefit of a party and could be waived.\n\nThe defendant pleaded in abatement, and purported to verify the plea by an affidavit, but the words ''before me\" wen: omitted from the jurat.\n\nThe plaintiff replied by traversing the plea, made up the issue and delivered it, with notice of trial for the ensuing Liverpool Assizes.\n\nAlso both parties took further steps in the action.\n\nPoHock C. B. said :\n\n\"The affidavit is bad, by reason of the omission of the words 'before me' in the _jurat.\n\nIt is the same as if there had been no affidavit.\n\nWith respect to the other question ...\n\nSuppose there had bee~ no affidavit whatever and the plain-\n\n(!) A. I. R 1947 P. C. 197.\n\n(2) [1848) 1 Exch. 651, 655,656.\n\nSUPDT. TAXES v. ONKARMAL TRUST (Beg, l.) 385\n\ntiff had replied, joining issue, and a trial hac taken place, the event of which was a verdict in favour of the defenC.ant,\n\nupon which judgment was entered up, could the whole proceedings have been set aside because there was no affidavit?\n\nIt is clear that they could not.\n\nThe question then is, what is the meaning of the statute of Anne ? In\n\n-my opinion, that Act had not any public policy for its object, but solely the protection of plaintiffs against the delivery and effect of dilatory pleas. It enacts, that no such plea shaH be received, unless verified by affidavit.\n\nIf a plaintiff chooses to waive that provision, which is iotro duced for his benefit, he cannot afterwards sign jlJdgment\n\nfor want of such affidavit ...... \"\n\nParke B. said :\n\n''I concur in opinion with the Lord Cbief Baron.\n\nThe present affidavit is equivalent to no affidavit.\n\nThe question then . is, what is the meaning of the statute of Anne, which requires an affidavit of verification as a condition prececent\n\nto a valid plea in abatement ? If that enactment be intended for the sole benefit of plaintiffs, then the maxim applies 'Quilebet potest ren(mciare iuri pro se intro, ducto\".\n\nlt is evident that the requirements of that statute arc solely for the benefit of plaintiffs, and in order to prevent them from being delayed in their suits; and that they have to reference whatever to other suitors or to the rest of the Queen's subjects. It follows, that although an affidavit is so defective ar. to amount to no affidavit, a plaintiff may, if he choose, waive the benefit of his right, and join issue on the plea and -go to trial ; and if he does so, he cannot afterwards avail himself of the provisions of the statute. So, if he should demur to this plea, he would, in like manner, waive the benefit of the statute. If it were otherwise, the inconvenience would be great, as already pointed out.''\n\nThese observations were q110ted with approva! by Lord Pearce and their correctness affirmed by Lord Diplock in Kammins Co. v.\n\nZenith lnvestments (M. L. E.) (1).\n\nLord Diplock made it clear that 'waiver' is a word which is sometimes used looselv to describe a number of cifferent legal grounds on which a person may be debarred from asserting a substantive right which he once possessed or from raising a particular defence to a claim against him which would otherwise be available to him.\n\nHe observed that there is a type of waiver which arises in a situation where a person is intitled to alternative rights inconsistent with one another as when he has knowledge of the facts which give rise in law to these alternative rights and acts in a manner which is consistent only with his having chooscn to rely on one of them and the law holds him to. his choice even though he was unaware that this would be the legal consequence of what he did.\n\nHe then said that there is a second type of waiver which debars a person from rai:sing a particular defence to a claim\n\n(I) {1971] A. C. 850.\n\nA against him when he either agrees with the claimant not to raise that particular defence or so conducts himself as to be estopped frora raising it.\n\nIsaacs, J. in delivering the judgment of the High Court of Australia in Craine v. Co!Oilial Mutual Fire Insurance Co. Ltd. (1) said :\n\n\" ..... .'Waiver' is a doctrine of some arbitrariness introeuced by the law to prevent a man in certain circumstances from taking up two inconsistant positions (sec per James L. J. in Pilcher v. Rawlins (1872), 7. Ch. App. 259, at pp. 268 et seq. It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'rcprebating'-in English terms, whether he has elected to get some advantage to which he would not otherwise have been entitlee, so as to deny to him a later election to the contrary (see per Lord Shaw in Pitman v. Crum Ewing, (1911) A. C. 217, at p. 239.\n\nHis knowledge is . necessary, or he cannot be said to have approbated or elected.\"\n\nIn Corporation of Torounto v. Russell (2), the Judicial Committee held that where a notice in writing of intention to purchase compulsorily was required to be given to the owner of lands, the provision E being entirely for his benefit, he might waive it.\n\nThe High Court granted the orders of injunction on the basis that there was a prima facie case for the respondents.\n\nThe High Court held that the Act was invalid on the basis of its view that it was ultra vires the powers of the State Legislature. But when this F Court declared that the High Court was wrong and that the Act was valie, justice requires that neither the order of injunction nor the order of the High Court declaring the Act invalid should prejudice the rights of the parties as ultimately declared.\n\nNo act of a court should prejudice a party.\n\nThat is the first principle of justice.\n\nIt was the orders of injunction and the order declaring the Act as ultra vires which made it impossible for the Commissioner to issue G the notices within the period specified in s. 7(2).\n\nWhen this Court, by its judgment, upheld the appellants' contention that the Act was valid, how could the appellants be put in the position which they would have occupied hac the High Court not passed those wrong orders, except by dispensing with the necessity of issuing notices within the time?\n\nThe principle of restitution requires that the party prejudiced by a wrong order of the Court should be put in the H position which he or it would have occupied had the wrong orcer not been passed.\n\nIt was contended on behalf of the respondents that the appellants should have specifically told the High Court at the time the injunc-\n\n(1) [1920} 28 C. L. R. 305, at p. 327. n [t9osJ A c. 493\n\nSUPDT. TAXES v. ONKARMAL TRUST (Mt1thew, J.) 387\n\ntion orders were made absolute that if the Commissioner was not A _. permittee to issue the notices within the period specified in s. 7 (2), it would be impossible for the appropriate athority to call for the returns and make the assessments and that at any rate the appellants should have subsequently applied to the Court for modifica- tion of the injunction orders to the rXtent of permitting the Commissioner to issue the notices within the period and the failure of B the appellants to do so shows lack of dil, igence on their part and\n\n,,--:>- .... -\n\nthat the Court should not help parties who were not eiligeht in their conduct.\n\nWe do not think there is any substance in the argument. It wa~ after consideration of the arguments of both sides that the court made the interim orders of injunction absolute on 18-9-1961 stating that the appellants were restrained from taking any proceedings under the Act Thereafter in some applications for injunctions, the appel- 1ants did not enter appearance and object to interim orders of injunction being made absolute, knowing full well that since tlle Court had passed a considered order on 18-9-1961, it would be futile to urge further objections to the grant of injunction by the Court.\n\nThat apart, the Commissioner had time to issue the notices from 1 ~8-1963 when the High Court declared the Act to be ultra vires till 31-12-1963 when the two-year perioe expired. But as the Act was declared bad, it was impossible for him to issue the notices within the period.\n\nNor is there any substance in the argument of the respondents that the appellants should have approached this Court when this Court by its judgment in Khye1'bari Tea Co. Ltd. case (supra) declared the Act to be intra vires and moved the Court for stay of the operation of the judgment of the High Court. We think that the appellants were bounC. to appeal to this Court against the order of the High Court declaring the Act as invalid in order to get rid of the effect of that judgment as that judgment was binding between the parties to it notwithstanding the decision in Khyerbari Tea Co. Ltd. case\n\n(supra) that the Act was valid.\n\nThe appellants were, therefore, entitled to a reasonable perioo for filing appeals and for applying for stay of the judgment of the High Court declaring the Act to be ultra vires.\n\nIt may be recalled that the judgment in Khyerbari Tea Co. Ltd.\n\nG case (supra) was rendered on 13-12-1963 and the appellants preferred the appeals to this Court on 4-3-1964.\n\nHow is it possible to say that the appellants were guilty of laches when it is seen that they filed the appeals within the period of limitation prescribed by law ?\n\nWe have to judge the rights of the parties on the basis of the law tmd cannot allow ourselves to be swayed by any sentimental considerations.\n\nWe think the respondents were bound to file the returns even though the notices were not issued to them within the period specified in s. 7 (2). The liability to file the return was created by s. 7 ( 1) and as the requirement of notice within the period specified in s. 7 (2) could not have been insisted upon by the respondents for the reasons\n\n.... ,\n\nA which we have given, the authority empowered to make the assessment under s. 9 ( 4) was competent to do so.\n\nWe think the High Court went wrong in allowing the writ petitions.\n\n. vye should.' the~fore, set asic!c the orders of the High Col7rt,\n\n~1smtss the wnt petJttons and allow the appeals without any order as to costs.\n\nBEG, J. I have had the advantage of going through the judgments of the learned Chief Justice and my learned Brother Mathew.\n\nI regret that I am compelled to reach a conclusion which amounts to holding that the taxing authorities will, in the circumstances of these cases, have no right whatsoever left to assess the respondents for C taxes which they were found finally entitled to realise when this Court held the Assam TaXation (on Goods Carried by Road or on Inland Waterways) Act, 1961, (hereinafter referred to as 'the Act'), to be\n\nvalid on 13-12-1963.\n\nUnder the provisions of the Act which we have to interpret, this seems to be the inevitable result.\n\nAs my approach is perhaps slightly different from the one adopted by Mylord the D Chief Justice, I will state my reasons also.\n\nIf it shocks one's conscience to think that the mere fact that the High Court's orders prohibiting the Commissioner from proceeding under the Act should completely frustrate the intentions of a statute which was ultimately found by this Court to be quite valid and existing for the relevant period in the eye of law, it should disturb one's equanimity no less that those who represented or advised the taxing authorities of the State should not have brought to the notice of the High Court the great loss to the exchequer of the State and the possible automatic victory which the respondents may secure by mere lapse of time. The High Court would, I have no doubt, have suitably modiJ fied its orders to meet the requirements of Jaw and justice in such cases if the possible consequences of its orders had been brought to its notice.\n\nIn agreement with My lord the Chief Justice, I do not think that taxing authorities of the State were faced with a situation which could approximate to one where an \"Act of God\" had robbed them of the power to act or that they could not possibly have done anything at all within the time fixed by Section 7, sub. s. (2) of the Act.\n\nI fully G share the view that the taxing authorities were inexcusably non-chalant or unconcerned about the possible consequences of their neglect or inactivity upon the revenues of the State. It was at least the duty of the party adversely affected to have brought the relevant provisions of the law to the notice of the Court before it issued the injunctions, or, at any rate, even afterwards but within the time prescribed for the notice -under Section 7(2) of the Act.\n\nA party affected cannot go H to sleep over its rights and then attempt to shift the blame on to the Court for the consequences which flow from the orders passed so that it may be able to plead :\"Actus Curiae Neminem Gravabit\" (An act of the Court shall prejudice no man\").\n\nSuch a plea appears to me to be disingenuous.\n\nIt cannot apply to a case where the damage done to the powers of the taxing authorities was attributable to their own remisness or to that of their legal advisers. ·\n\n...\n\n+- :_.- ..;>. • . • l\n\nSUPDT, TAXES V. ONKARMAL TRUS_T '(Beg,/.) 389\n\nThe next question is: Did the acts or conduct of the petitioners- A\n\n-t respondents or anything else in the case operate as a waiver or an estoppel which prevented them from agitating the serious question whether the right of the taxing authorities to realise any tax from them under the Act had become extinguished by lapse of time with the Commissioner's power to issue notices prescribed by Section 7(2) of the Act? B If a waiver is a matter of agreement and not of an inference from any misleading conduct, the parties concerned must apply their minds ,. to the subject matter of what is waived by an agreement between them before any alleged waiver can arise. It is contended here on behalf of the State that it must be assumed that the respondent waived their\n\n;.. right to get a notice urider Section 7(2) of the Act when they obtained c\n\n(. the injunctions from the High Court.\n\nThe authorities cited on behalf .... • of the appellant, which have been discussed by my learned Brother ..\n\nMathew, do afford grounds for contending that a compliance with a provision i, ntended for the benefit of a party may be waived by the party foc whose protection it is designed.\n\nBut, even in such cases, I think it must be at least present to the mind of the party waiving a n right by adopting a course of action what the underlying assumption is or what the consequence of its conduct is going to be.\n\nOne can only make an assumption on which an injunction rest if it flows neccs~ sarily from the language of the Court's order or anything else on record.\n\nBut, there is nothing here either in the Court's orders or any~ where else on record to provide a basis for such a; n assumption.\n\nE Furthermore, the waiver, even where both sides have agreed to waive the opc.r:ation of a statutory provision, cannot extend to a case in which the effect may be either to oust the jurisdiction conferred by statute or to confer a jurisdiction which, according to the statute, is not there. In other words, if a notice under Section 7 (2) of the Act is a condition precedent to the exercise of jurisdiction to make the F best judgment assessment, I do not think that the doctrine of waiver will confer jurisdiction so as to enable parties to avoid the effect of violating a mandatory provision on a jurisdictional matter even by ... agreement. If, on the othe!'.hand, want of notice under Section 7 (2) of the Act is not a condition precedent to the exercise of jurisdiction to make a best judgment assessment-and, that seems to me to be the crux of the matter on this question-it does not appear to me to G be necessary to resort at all to a doctrine of a dubious or deemed waiver. In that case, waiver or no waiver, the power to assess wou!d subsist. And, as that power has to be exercised quasijudicially, the\n\ntaXing authorities could issue a notice to show c.ause .why they sh_ould ,, not assess on such materials as they have, even if therr power to Issue a notice asking for a return under Section 7(2) may have been 1ost by lapse of time. The power to. issue a suitable. oti~~ to sho~ cause H according to rules of natural justtce when a quasi-JUdcral.functiOn has to be exercised can be as we have repeatedly held, 1mplted and read into the nature 'of the function to be performed even if it is not exprcssly mentioned.\n\nAgain, I do not see what representations the. petitioners-re.pondents bad either made or could be deemed to have made by any suence\n\nA of theirs so as to mislead the taxing authorities.\n\nThe presumption is that everybody knows the law whether this be so or not in fact.\n\nHence, no \"es.toppel in pai'S'' or equitable estoppel, as contemplated by Sec. 115 Evidence Act, could arise here. Also, there could be no\n\n\"estoppel by record\" as it was neither actually nor constructively in issue whether the party obtaining an injunction in its favour was or\n\n~ was not to get the benefit of lapse of the time prescribed for a notice\n\n under Section 7 (2) of the Act.\n\nAnd, therefore, there could be no decision, actual. or constructive, on such an issue.\n\nThat issue could only arise after the time prescribed had expired whatever be the reason why a party could not act during the prescribed time.\n\nWe have been reminded by both sides of what Rowlatt, J., an c outstanding authority on law relating to taxation, said in Cape Brandy Syndicate v. I.R.S. (1) :\n\n\" .. .in a taxing Act one has to look at what is clearly said. There is no room for any intendment.\n\nThere is no equity about a tax. There is no presumption as to a tax- Nothing is to be reaQ in, nothing is to be implied. One can only look fairly at the language used\". ·\n\nI do not think that this was meant to exhaust all principles of interpretation or construction of every type of provision in a taxing statute or to apply to every situation which may arise. ln a system, such as ours, where the Constitutionality of all statutes, including taxing statutes, can be subjected to judicial review other principles also are, not E infrequently, invoked.\n\nIf, however, Section 9( 4) of the Act read is to be literally interpreted on this point, we cannot read into it, by implication, an obstacle to the best judgment assessment which is not there. It reads as follows :\n\n\"9 ( 4) if a producer or dealer fails to make a return as required by Section 7 or having made the return, fails to comply with the terms of the notice issued under subsection (2) of this Section, the Commissioner shall, by an order in writing, assess to the best of his judgment the producer or dealer and determine tJJC tax payable by him on the basis of such assessment;\n\nProvided that before making assessment the Commis- G sioner may allow the producer or dealer such further time as he thinks fit to make the return or to comply with the terms of the notice issued under sub-section (2) of this Section\".\n\nIt will be seen that Section 7 deals with \"returns\" whereas Section 9 deals, with \"assessment\", and Section 9( 4) deals specifically with the power to make the best judgment assessment.\n\nOn H a reading of Section 9 ( 4), it appears that the two conditions for an exercise of jurisdiction under it are alternative conditions linked with the disjunctive 'or'.\n\nA failure to comply with the terms of the notice issued under Section:. 7(2) is only one of these two alternative sets of conditions.\n\nAnd, this set of\n\n(1) [1921] I K.B. 64, 71.\n\n. ..;:.. -~ ·- 1\n\nSUPDT. TAXES v. ONKARMAL-TRUST (Beg, J.) 391 • conditions comes into existence only after the issue of the notice under A\n\n-+ Section 7(2) which initiates the proceedings. It is, howeyer; difficult tQ _s~ hpw a mere failure to make a return by itself amounts to itiitation of p~:o~; eetlings. Even if the first part of Section 9 ( 4) could conceivably apply .to a party after the expiry of two years, during which period a dealer or producer \"may\" get a noti<:e under Section 7 ( 2) of the Act to make return, yet, the proceedings will have to be B commenced by some kind of notice that could, as indicated above, be a notice in exercise of an implied power to . observe rules of natural justict; although it could not, after the lapse of the prescribed time, be technically a notice under Section 7 (2) of the Act.\n\nAssuming that the power to issue notice under Section 7(2) is not mandatory\n\n.,. but only directory, inasmuch as the Commissioner \"may\" issue the c required notice, and, furthermore, even assuming, for the purposes of\n\n\" argument, that such a notice, meant for the benefit of a party can be and has been waived by it, yet, I fail to see how an assessment under Section 9 ( 4) could escape the bar created by Section 11 of the Act. . This Section shows that a notice to make a return within two years of the expiry of the return period is a condition precedent to exercise jurisdiction to assess. And, such a notice could only be one under D Section 7 (2) of the Act.\n\nSection 11 of the Act, which seems to clinch the crucial issue, reads as follows :\n\n\"11. If in consequence of definite information ; w}lih E\n\nh~ come into his possession, the Commissioner is satisfied that any producer or dealer, though liable to pay tax in respect of any period, has nevertheless failed to make the return required of him or that tea or ; ute chargeable to tax has escaped assessment in any period or has been underassessed, the Commissioner may, at any time within two F years of the expiry of that period, serve on the producer or dealer liable to pay tax a notice requiring him to furnish within such period, as may be mentioned in the notice, a return of manufactured tea in tea container's or jute in bales carried, in the prescribed form and may proceed to assess or re-assess the producer or dealer and the provisions of this Act shall, so far as may be, apply accordingy : G •\n\nProvided that the tax shall be charged at the rate at which it would have ordinarily •been charged, had there been no escape or evasion\".\n\nIf this provision imposes a limitation upon the power of the H Commissioner to assess in every case of escaped assessment, whatever may be the reason for the escape, the best judgment proceedings against the respondents would be barred by the passage of two years after the return period.\n\nThis result must, on the languageof Section 11, flow from it, and not from mere failure of the Commissioner to issue\n\n....4.\n\na notice under Section 7 ( 2) of the Act, which the Commissioner\n\n\"may\" only serve within two years of the expiry of the return period .\n\n10 SC/75-26\n\nSUPREME. COURT REPORTS [1975] SUPP S.C.ft..\n\nA Here, I may refer to State of Assam & Anr.\n\nV;· D. C.\n\nChoudhuri & Ors., (1) where, inter-alia, Section 30 of the Assam Agricultural Income tax Act, which was found to correspond to Seer\n\ntion 34 of the Indian Income tax Act, 1922, was relied upon by this Co1J!t to hold tht there is a bar against the proceedings for escaped\n\nassessment. Section 30 of the Act reads as follows : ·\n\n\"If for any reason any agricultural income chargeable to agricultural income-tax has escaped assessment for any financial year, or has been assessed at too low a rate or has been the subject of undue relief under this Act, the Agricultural Income tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural income-tax on such agricultural income or, in the case of a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 19, and may proceed to assess or reassess such income, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section :\n\nProvided ......................... \" If we compare Section 11 of the Act before us with Section 30 of the Assain Agricultural Income tax Act, we find that, although, the language of Section 11 of the Act before us is somewhat different from that of Section 30 of the Assam Agricultural Income tax . Act, yet, the effect is the same. On the language of Section ll of the Act before us, it is evident that every case where tea or jute chargeable to tax has escaped assessment for any period or has been under assessed, the Commissioner must take action within two years of the expiry of the return period.\n\nI think it is this part of the Act which will operate as a bar to the jurisdiction of tlfe Commissioner to tax any escaped assessment beyond two years of the return period.\n\nTherefore, quite apart from the question whether on the mere language of Sec. 7 ( 1) and Sec. 9 ( 4) a failure to issue a notice under Section\n\n7(2) of the Act within the return period constitutes a. bar to pro- G ceedings under Section 9(4) of the Act, I do not see how a failure to issue such a notice would not become a bar due to the clear provisions of Section 11 of the Act. This bar, at any rate, is against exercise of jurisdiction to assess beyond the prescribed period.\n\nThe notice here is part of the procedure for .assessment.\n\nThere ic; no power given to issue it beyond the period fixed.\n\nThere is no provision of the Act making anything like Section 5 or Section 14 of the H Limitation Act applicable to proceedings for escaped assessment under\n\nthe Act.\n\nWe cannot, by an exercise of our judicial power of inter~ pretation defeat the clear effect of the .enated law.\n\nI~ the law was badly drafted or has revealed a gap which Its makers d1d not foresee, the remedy of the State lies elsewhere. ·\n\n(t) [1970] T SCR 780.\n\n... -\n\n.· :\n\nSUPDT. TAXES v. ONKARMAL TRUST (Beg, .J.) 393\n\nI would, therefore,. in agreement with Mylord the Chief Justice, A dismiss these appeals, but, in the circumstance of these cMes, award no costs to either side.\n\nORDER\n\nIn accordance with the judgments of the majority, the apPeak are dismissed. 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{"document_id": "1975_1_394_402_EN", "year": 1975, "text": "GOVERNMENT OF ANDHRA PRADESH & ANR:\n\nv. t.'\n\nHINDUSTAN MACHINE TOOLS LTI).\n\nMay I, 1975 ·\n\nH. R. KHANNA, M. H. BEG ANDY. V. CHANDRACHUD, JJ.)\n\nArticle 246(3) and entry 49 in LJst II of 1th Schedule to Constitution-- Nature of fees-Quid pro quo-Legislature amending definition retrospectively whether encroaches upon judicial functions-Andhra Pradt:sh Gian1 Panchayat Act, 1964.\n\nThe And.bra Pradesh Legislature passea' the Andhra Pradesh Gran1 Panclutyat Act, 1964.\n\nThe Kuthbullapur Gram Panchayat was established under the Act.\n\nThe respondent constructed a factory and other buildings without the permission of the Gram Panchayat.\n\nLater on, the respondent asked for expost-facto permission.\n\nThe Panchayat agreed to grant the permission on the respondent paying permission fee at 1-1/2 per cent on the capital value of the factory building ano' at 1 per cent on the capital value of other buildings.\n\nThe Panchayat also called upon the respondent-; to pay the house tax.\n\nThe respondents filed a Writ Petition in the High Court challenging the levy of house tax and permission fee.\n\nThe High Court allowed the Writ Petition holding that the buildings constructed by the respondents did not fa11 within the definition of a house and further ruled that since no services were rendered, the levy of permission fee was illegal. Section 69 of the Act authorises the Gram Panchayat to levy a house tax.\n\nThe definition of house as it stood when the High Court delivered its judgment was a building or hut fit for human occupation whether as a residence or otherwise, having a separate principal entrance from the common way and included any shop, workshop or warehouse or any building used for garaging or parking of buses or as a busstand.\n\nThe High Court held that the buildings other than factory premises were not a house because their separate principal entrance was situated on the road belonging to the respondents.\n\nAli regards the factory buildings, the High Court held that the Legislature included shops, workshops, and warehouses, but clid not include factory within tho definition of the house. The demand of house tax was held to be illegal.\n\nAfter the judgment of the High Court was delivered, !he Legislature amended the definition of the house retrospectively to incluCie the buildings constructed by the respondents.\n\nThe appellant contended that the new definition of the house clearly includes the buildiµgs constructed by the respondent and that the Pancbayat was entitleQ to impose house tax on the respondent Secondly, the Gram Panchayat lays roads, provides for drainage and lights, scrutinises the plans submitted for intended construction, and, therefore, is entitled to charge the permission fee. In the alternative, it was contended that the permis5lion fee though called a fee is. really in the nature of a tax on buildings and may be upheld &8 such.\n\nRespondent contended :-\n\n1. By redefining the term 'house' with retrospective effect, the Legislatur_e encroached upon a judicial function.\n\n2. Without a proper budget, the Gram Panchayat cannot impose taxes.\n\nA. P. GOVT. v. H. M. T. (Chandachud, /.)\n\n3: There is no provision in_ the Act enipowei:ing tb.e Gram Pancba-. -. yat to levy permission fees. ·\n\n4. No services are rendered for which perinission fees . can be charged.\n\nPartly allowing the appeal,\n\nHELD : The Legislature has power to pass alaw JlTOspectiveIY as well ls B retrmpectively.\n\nThe Legislature can remove the baslS of the decision ren~ dereo' by a court.\n\nThe Amending Act does not ask the instrumentalities of the State to disobey or disregard the decision given by the High Court, but merely removes the basjs of that decision.\n\nUnder Article 246(3) read with Entry 49 in Llst II of the 7th Schedule, the State Legislature has exclusive power to make laws with respect to taxes on lands and buildings .. Section 69 of the Act authorises the Gram Panchayats to levy house _tax in the villages under their respective juris6.'iction. The house tax was rightly imposed by the C Gram Panchayat. [398 B.F., 399 DEF]\n\nHEW FURTHER-The argument about absence of budget was not made in the High Court and as it involves an investigation into facts, this Court cannot go into it for the first time. [40G-DE]\n\nHELD FURTHER-There is no provision in the Act empowering the GTani Panchayat to levy fees on the permission to construct a building.\n\nIn fact, there is no .provision in the Act to obtain the permission of the Gram Panchayat for construction of building. Fees are a sort of return or consideration for services rendered which makes it necessary that there should be an clement Of quid pro quo in the imposition of a fee. There has to be correlationship between the fee levie6.' by an a\\Jthority and the services rendered by it to the person who is required to pay the fee.\n\nIn this case, there is no such correlationship.\n\nFees cannot be imposed for discharging statutory functions of public authorities.\n\nThe services have to be rendered individually to the particular J?.t:rsOn on whom the fee is imposed. The very fact that the pennission fee :is. Jevied at a certain percentage of the capital value of the buildings shows that the Gram Panchayat itself never intended to correlate the fee with the service's rendered or intended to be rendered by it. [400-H, 401-DE, 402 c]\n\nCIVIL APPELLATE JURISDICT!ON : Civil Appeal No. 1189 of 1972.\n\nFrom the Judgment and order dated 6th August, 1971 of the High Court of Andhra Pradesh in W. P. No. 4223 of 1969.\n\nP. Ram Reddy and P. P. Rao, for the appellants.\n\nB. Sen and Naunit Lal, for tha respondent.\n\nK. Srinivasamurthy, Naunit Lal and La/ita Kohli, for the interveners.\n\nThe Judgment of the Court was delivered by\n\nCIIANDRACHUD, J. This is a tax dispute concerning the power\n\nof the second appel, lant, Kuthbullapur Gram Panchayat, to levy house- H tax and Permission Fee on the respondent. The Hindustan Machine Tools Ltd., which is a Government of India Undertaking. The first appellant is th<; Government of Andra Pradesh. e, ·- ' . .\n\nThe Kuthbullapur Gram Panchayat was established in 1959, Jn 1964 the Andhra Pradesh State Legislature passed the Andhra Pradesh\n\n396 SUPREMll COUll.T IUlPORTS (1975] SUPP s.c.k.\n\nA Gram Panchayats Act, 2 of 1964, which with the exception of Chapter VII of the Act, came into force on January 18, 1964. The Act applies to the Kuthbullapnr Graru Panchayat within whose geographical limits\n\nthe respondent has established a factory for the manufactnre of special apparatus machines, presses etc. The construction of the factory began in 1964 and was completed in December, 1965. The factory was con- B structed without the permission of the Gram Panchayat. Considering the skeleton staff which mans the Panchayat and its skeleton activities, the respondent's plea that it did not obtain the Panchayat's permission because it was not aware of its existence is not implausible. But such awareness has no relevance on the respondent's liability to pay taxes and fees. In any event, on coming to know of the construction of the factory and the other buildings the Panchayat asked the respondent C to obtain the requisite permission. The respondent asked for ex-postfacto permission in January, 1967.\n\nIn its meeting of May 8, 1967 the Panchayat passed a resolution for collecting Permission Fee from the respondent at 1/2% on the capital value of the factory buildings and at 1 % on the capital value of other D buildings. By a letter dated August 20, 1968 the Panchayat called upon the respondent to pay house-tax for the years 1966-67, 1967-68 and 1968-69 amounting to Rs. 1,83,750 at the rate of Rs. 61,250 per annum. On March 3, 1969 the Panchayat demanded from the respondent a sum of Rs. 1,65,000 by way of Permission Fee, Rs. 80,0()() beillg for factory buildings and Rs. 85,000 in respect of the other E buildings.\n\nOn November 25, 1969 the respondent filed a writ petition ia the High Court of Andhra Pradesh challenging the levy of house tax and the Permission Fee. By its judgment dated August 6, 1971 the High Court allowed the writ petition. It held that the buildings cons- F tructed by the respondent did not fall within the definition of a 'house' as contained in the Act and therefore no house-tax could be li!tied on the buildings. Regarding the Permission Fee the High Court repelled the appellant's contention that the fee was in the nature of tax and held that since no services were rendered by the Pancl111yat to the respondent the levy of Permission Fee was illegal. The High Court has granted to the appellants a Certificate of Fitness under Article G 133(1) (a) of the Constitution to appeal to this Court.\n\nSection 69 (l )(a) of the Act provides that a Gram Panchayat shall levy in the village a house-tax. By section 2( 15), as , it stood when the High Court delivered its judgment, 'house' meant a building or hut fit for human occupation, whether as a residence or otherwise, \"having a separate principal entrance from the common way,!' and H included \"any shop, workshop or warehouse or any building used for garaging or parking buses or as a bus-stand\". The High Court heW that buildings other than factory premises were not a 'house' within the meaning of the Act because their separate principal entrance8 were situated on the roads belonging to the respondent and not on the common way as required by section 2(15). As regards the factory buildings, the High Court held that the Legislatnre had included shops,\n\nA. P. GOVT. v. H. M. T. (ehwuirachud, J.) 397\n\nworop& and warehouses but not factories within the definition of A i a 'house' and therefore factory buildings were also not a 'house' within the meaning of the Act. The demand of house-tax was accordingly held illegal.\n\nBy the Andhra Pradesh Gram Panchayats (Amendment) Act, 16 of 1974. the State Legislature has amended the definition of 'house' B with retrospective effect so as to eliminate the impediments on which the High Court rested its judgment. If the amendment is lawful and valid, it will be unnecessary to consider whether the High Court was right in reading the way it did the definition of 'house' as contained in the unamended section 2(15).\n\nSedion 2 of the Amending Act provides :\n\n\"2. For clause ( 15) of section 2 of the Andhra Pradesh Gram Panchayats Act, 1964 (hereinafter referred to as the principal Act), the following clause shall be and shall be deemed always to have been substituted, namely :-\n\n\"(15) 'house' means a building or hut fit for human occupation, whether as a residence or otherwise, and includes any shop, factory, workshop or warehoue or any building used for garaging or parking buses or as a busstand, cattle shed (other than a cattle shed in an agricultural land), poultry shed or dairy shed\" ;\n\nSection 4(a) of the Amending Act provides:\n\n\"4. Notwithstanding anything in any judgment, or order of any court or other authority,- decree\n\n( a) anything done or any action taken, including any tax levied and collected, in the exercise of any power conferred by or under the principal Act shall be deemed, to be and to have always been, done or taken or leived and collected in the exercise of the powers conferred by tor under the principal Act as amended by section 2 of this Act, as if the principal Act as amended by this Act were in force on the date on which such thing was done or action was taken, or tax was levied and collected; and all arrears of tax and other amounts due under the printipal\n\nAct as amended by this Act at the commencement of this Act, may be recovered as if they had accrued under the principal Act as amended by this Act\";\n\nThe new definition of 'house' which is to be read retrospectively\n\nin to the Act meets effectively both the objections by reason of which H the High Court held that the buildings constructed by the respondent were not a 'house'. By the Amendment the old clause \"having a separate principal entrance from the. common ay\" is , dropped and the efiniti?n of 'house' is re-framed to mclnde a factory. It 1s clear and 1s undisputed that the. buildings constructed by the respondent-the colony buildings as well as the factory buildingsanswer fully the description\n\nA of a house and are squarely within the new definition contained in section 2(15).\n\nWe see no substance in the respondent's contention that by redefining the term 'house' with retrospective effect and by validating the levies imposed under the unamended Act as if, notwithstan, ding anything contained in any judgment decree or order of any court, .that Act as amended was in force on the date when the tax was levied, the Legislature has encroached upon a judicial function. The power of the Legislature to pass a law postulates the power to pass it prospectively as weII as retrospectively, the one no less than the other.\n\nWithin the scope of its legislative competence and subject to other constitutional limitations, the power of the Legislature to enact laws C is plenary. In United Provinces v. Atiqa Begum ( 1 ) Gwyer, C.J. while repelling the argument that Indian Legislatures had no power to alter the existing laws retrospectively, observed that within the limits ot their powers the Indian Legislatures were as supreme and sovereign as the British Parliament itself an~ that those powers were not subject to the \"strange and unusual prohibition against retrospective legis- D lation\". The power to validate a I law retrospectively is, subject. to the limitations aforesaid, an ancillary power to legislate on the particular subject. .\n\nThe State legislature, it is sJgnificant, has not overruled or set aside the judgment of the High four!. It has amended the definition E of 'house' by the substitution o a new section 2(15) for the old section and it has provided that. the new definition shall have retrospective effect, notwithstanding apything contained in any judgment, decree or order of any court or other authority. In other words, it\n\nhas removed the basis of the del'ision rendered by the High Court so that the decision could not have Ileen given in the altered circumstances.\n\nIf the old section 2(15) were to define \"house' in the manner that the\n\namened section 2(15) does, fhere is .doubt that t.he decision .of\n\nth~ High Court would have been otherwise. Jn fact, 1t was not d!Sputed before us that the buildipgs constructed by the respondent meet fully the requirements of sction 2(15) as amended by the Act of 1974.\n\nG In Tirath Ram Rajindra Natb v. State of U. P. ( 2), the Legislature amended the law retrospectively and thereby removed the basis of the decision rendered by the f!igh Court of Allahabad. It was held by this Court that this was with.in the permissible limits and validation of the old Act by amending it retrospectively did not constitute an encroachment on the functions of the judiciary.\n\nThe decisions on which th~ respondent relies are clearly distin- H guishable. In the Municipal Cdrporation of the City of Allilhabad\n\nv. The New Shrock Spg. & Wvg. Co. Ltd. ( 3) the impugned provision commanded the Corporation tol refuse to refund the amount illegally ·---·--·\n\n(') (194-0) F. C.R. !JO.\n\n(') A.LR. 1973 S.C. '4-05. (') Al.R 1970 S.C. 1292.·\n\n. '\n\ncollectd by it despite the orders of the Supreme Court and the High Court As the basis of these decisions remained unchanged even after the amendment, it was held by this Court that the legislature had made a dircet inroad into the Judicial powers. In Janp11da Sabha Chindwara etc., v. The Central Provinces Syndicate Ltd.,('} the Madhya Priidesh Legislature passed a Validation Act in order to rectify the defect pointed out by this Court in the imposition of a css.. But e Act did not set out the nature of )he amendm€fut nor did 1t provide that the notifications issued without the sanction of the State Government would be deemed to have been issued validly. It was held by this Court that this was tantamount to saying that the judgment of a coµrt rendered in the exercise of its legitimate jurisdiction was to\n\nbe deemed to be ineffective.\n\nThe position in, State of Tamil Nadu v, M. Rayappa Gounder ( 2 ) was similar. In that case the re-assessment made under an Act which did not provide ror reassessments were attempted to be validated without changing the law retrospectively.\n\nThis was considered to be an encroachments on the judicial functions .\n\n.In the instant case the Amending Act of 197 4, cures the old definition contained in section 2(15) of the vice from which it suffered. The amendment has been given retrospective effect and as stated earlier the legislature has the power to make the law passed by it retro-active. As the Amending Act does not ask the instrumentalities of the State to disobey or disregard the decision given by the High Court but removes the basis of its decision, the challenge made by the respondent to the Amending Act must fail.\n\nThe levy of the house-tax must therefore be upheld.\n\nUnder Article 246(3) read with Entry 49 in List II, Seventh Schedule of the Constitution, the State legislatures have exclusive power t9 make laws with respect to ''Taxes on lands and buildings\" Section 69~1)(a) of the Act authorises Gram Panchayats to levy house .. tax m the villages under their respective jurisdiction.\n\nThe F Gram Panch.ayat of Kuthbullapur has accordingly levied house-tax on the bmldmgs constructed by the respondent including the factory buildings. It needs to be clarified that by Rule 6 of the \"Rules relatmg to levy of House-Tax\", machinery and furniture are to be excluded .from consideration for the purpose of assessment to house-tax.\n\nThus, the tax is on buildings only and does not transgress the scope of Entry 49.\n\nThis clarification became necessary in view of the respondent's C?ntention that the State legislature has no power under Entrv 49, List II, to levy tax on the lands and buildings owned or occupied by\n\n~ factory., Entry 36 in List III relates to \"Factories\" and Entry 47 m. that List reates t? \"Fees in respect of any of the matters in this List, but not mcludmg fees taken in any court\". It is urged on H\n\nbehlf of the !espondent that these specific Entries in regard to the\n\npartrclar sub1t matter exhaust the power to impose levies on factones .and smce the power is limited to the imposition of fees on\n\n (') A.I.it 1971 s.c. 57.\n\n(') A.I.R.\n\n1971 S.C. 231.\n\n400 SUPIUi'.MB _COURT REPORTS [1975] SUPP• S.C.ll.\n\nA factories, the legislature has no competence to impose a tax on the lands or buildings of a factory. It is true that the various Entrie8 in the legislature Lists must receive a broad and liberal construe:. tion nd Entry 36 in List III may therefore cover every aspect of the subject matter of \"Factories\". But the State legislature has not authorised the levy of house-tax on factories in the COIJlpendious B sense. The new definition of 'house' includes a 'factory' but the housetax is levied only on the buildings occupied by the factory and not on the machinery and furniture.\n\nThe State legislature bas the legislative competence to do so under Entry 49 in List II.\n\nIt was urged by Mr. Naunit Lal on behalf of one of the interveners that 'Factory' is a compendious expression and sijlce a factory C consists of the building, the machinery and the furniture, the legislature cannot split up the personality of the factory and tax one part of it only.' There is no substance in this contention because the power to tax a building can be exercised without reference to the use to which the building as put and it irrelevant that the building is occupied by a factory which cannot conduct its activities without the machi- D nery and furniture. What falls legitimately within the scope of a legislative Entry can lawfully. form the subject matter of legislation'.\n\nWe cannot entertain the respondent's argument that without a proper budget, the Gram Panchayat cannot impose a tax. Such an argument was not made in the High Court and it involves an in- \\'estigation into the fact whether the Gram Panchayat had or had not prepared a budget. Nor can we entertain the respondents submission that section 4(b) and (c) of the Act of 1974 .are invalid.\n\nUnder clause (b), no suit or other proceeding is maintainable or can be continued in any court or before any authority for the refund of any tax.\n\nUnder clause (c), no court shall enforce any decree or order directing the refund of any such tax. No suit has been filed by the respondent for the refund of tax and no decree or order has been passed by any court or any authority for the refund of any tax.\n\nThis Court does not answer academic questions.\n\n. .\n\nThe position in regard to the so called 'Permission Fee' is entire- ly dilierent. In the first place, the Act of 1964 itself makes a distinction between the power to impose a tax and the power to impose a r: fee. Section 69(1) and section 69(3)(i), (ii), (iii) empower the Gram Panchayats to levy taxes while section 69(3) (v) and (vi) provide for the levv of fees.\n\nSections 92, 109(2), 111, 121(5), 122 and section 131 of the Act also provide for the imposition of specific fees.\n\nThere is no provision in the Act empowering the Gram Panchayats to -levy fees on the permission to construct a building, which is what H the second appellant has purported to do in the instant case.\n\nIn fact, there is no provision in the Act under which it is necessary to cbtain the permission of the Gram Panchayat for constructing a building. Section 131(2) of the Act which authorises the levy of fees for every licence or permission is therefore notattracted. Section '125(1) requires that the permission of the- Gram Panchayat must\n\n.., be obtained for constructing or establishing a factory, workshop or A work-place in which it is proposed to employ steam po.wer, ati:r power .or other mechanical power or electrical power or m which 1t is proposed to instal any machinery or manufacturing plant driven by steam water or other power as aforesaid. The provision may possibly spport a le~ of . Permission Fee on the tactory build\\nll; S• but there is no provmon m the Act at all requmng the per011ss10n of.\n\nB the Gram Panchayat for the construction of other buildi_ngs. _<?ounsel\n\nfor the appellants wanted to derive sustenance to the 1mpos1t1on of\n\nPremission Fee from the provision contained in section 217(2) (xvi) but that clause only empowers the Goverrunent to make rules \"as to the regulation or restriction of building and the use of sites for building\".\n\n~ In the absence of any provision in the parent Statute requiring the c\n\n~ ' permission of the Gram Panchayat for the construction of non-factory\n\nbuildings, the rule-making power of the Government cannot be ' exercised so as to impose the requirement of a permission in respect cf sucb buildings.\n\nBut there is a broader ground on which the levy of Permission Fee must be struck down. Fees are a sort of return or consideration for services rendered which makes it necessary that there should be an element of quid pro quo in the imposition of a fee. There has to be a correlationship between the fee levied by an authority and the services rendered by it to the. person who is required to pay the fee('). There is, in this case, not a word showing such a correlationship. In the counter-affidavit which the appellants fild in the High Court in reply to the respondent's writ petition, nothing at all was stated as to the expenses incurred or likely to be incurred by the Gram Panchayat in rendering any actual or intended service to\n\nthe respondent. There may be something in the grievance of the Gram Panchayat that the mighty respondent and others following the respondent's lead have been persistently refusing to pay taxes which h'.'8 made it impossible for the Gram Panchayat to render any ser- 'F vices. But the -true legal position as stated by Mukherjea, J. in the Commissioner, Hindu Religious Endowments Madras v. Shri Lakshmindar Thirtha Swamiar of Sri Shirur Mut1(2) is that 'it is absolutely > nrcessary that the levy of fees should on the face of the legislative\n\nprov1S1on, be correlated to the expenses incurred by Government in rendering the services\". In the total absence of any data showing such a corrclationship, the levy of Permission Fee has to fail.\n\nOne cannot take into account the sum total of the activities of a public body like a Gram Panehayat to seek justification for the fees imposed by it.\n\nThe expenses incurred by a Gram Panchayat or a MuniciJ?ality_ .i~ dischargin, g its obligatory functions are usually met by the 1mpos1t1n of a variety of taxes. For justifying the imposition of fees the public authonty has to show what services are rendered or H intended to be rendered individually to the particular person on whom the fee i~ imposed.\n\nThe Gram Panchayat here has not even prepared an estimate of what the intended services would cost it.\n\nI') [1954] S.C.R. 1005: A.I.R. 1957 S.C. 846 . ...\\\n\n(') 119541 S.C.R. 1005, 1042.\n\nA Learned counsel for the appellants contended that the Gram r Panchayat lays roads for providing access to new . buildings, that it provides for drainage and lights and that it scrutinises the plans submitted for intended constructions . and, if necessary, it advises the applicants in order that the proposed construction may conform to the regulations.\n\nWe are unable to accept that these services . are B rendered individually to the respondent.\n\nThe laying of roads and drainage or the supply of street-lights are a statu1ory function of public authorities and it is difficult to hold, in the absence of any material, that any of such services as have been mentioned to us have in fact . been rendered to the respondent.\n\nThe very circumstance that the Permission Fee is levied at a certain percentage of the \"\" c capital value of the buildings shows that the Gram Panchayat itself , never intended to correlate the fee with the services rendered or in- • tended to be rendered by it. There is therefore no warrant for the { levy of Permission Fee, not even on factory buildings, assuming for the sake; of argurnent that the i)ermission of Gram Panchayat is necesse.1y for the construction of factory buildings.\n\nD It was alternatively contended on behalf of the appellants that the Permission Fee though called a fee is really in the nature of a tax on buildings and may be upheld as such. It is impossible to accept this contention. That the Permission Fee is not a tax on buildings is clear from the fact that the fee may be required to be paid even if a building does not eventually come into existence.\n\nThe scheme E under which. the Permission Fee is attempted to be levied is that it becomes payable at the time when thte permission, to . construct a building is applied for.\n\nThe levy does not depend upon whether a building has. been in fact constructed with the result that whether a building is constructed or not, the fee has to be paid. In other words, the Permission Fee is in the nature of a levy on a proposed activity F and is not a tax on buildings. . . ,,,\n\nThus, the levy of house-tax is lawful but the levy of Perruission Fee has to be struck down as being illegal. Accordingly the appeal is allowed partly but since the success is divided,· there will be no , order as to costs.\n\n~P. H. P.\n\nAppeal partly allowed.", "total_entities": 38, "entities": [{"text": "GOVERNMENT OF ANDHRA PRADESH & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "GOVERNMENT OF ANDHRA PRADESH & ANR", "offset_not_found": false}}, {"text": "t.'\n\nHINDUSTAN MACHINE TOOLS LTI", "label": "RESPONDENT", "start_char": 40, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "HINDUSTAN MACHINE TOOLS LTD", "offset_not_found": false}}, {"text": "H. R. 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{"document_id": "1975_1_403_408_EN", "year": 1975, "text": "DOLLAR COMPANY, MADRAS\n\nCOLLECTOR OF MADRAS\n\nMay 1, 1975\n\n[V. R. KRISHNA !YER, R. S. SARKARIA AND A. C. GUPTA, JJ]\n\nLand ~4.cquisition Act-Section 23-Market Value-Prirtciple on which Appellate Court interferes.\n\nThe suit land was acquired under the Land Acquisition Act. The Land\n\nAcquisition Officer awaided Rs. MO per ground as compensation. The City C\n\n~ Civil Court awarded at the rate of Rs. 1000 /- per ground. The High Court on\n\nappeal awarded Rs .. 1800 per ground. The appellant himself purchased the ,.. ....- suit land about 10 months before the notification under s. 4 was made at a price of ks. 410 per ground. The appellant spent a little money on filling up the r pond. ·\n\nHEID : Dismissing the appeal,\n\nThis Court interferes with the judgment of the High Court only if the High Court applies a principle wrongly or because some important point affecting valuation has been overlooked or misapplied. A court of appeal interferes not when the judgment under attack is not right, but only when it is.shown to be wrong. [404 E-FG]\n\nHELD FURTHER-Market value is \"\"hat a willing purchaser will pay a E willing vendor. The best evidence of the value of property is the sale of the very property to which the claimant is a party. If the sale was long ago, the Court \\VOuld examine more recent sales of comparab1e lands as throwing better Jigbt on current land value. In the present case, the appellant himself purch.ued the\n\nland at the rate of Rs. 410 per ground. [404 H. 405 A.BJ\n\nHELD-There is no error in principle in the High Court Judgment nDr hae F any of the limited grounds on which these Court's jurisdiction can be legiti- ' mately exercised been made out. [408-CD]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 667 of 1968.\n\nFrom the judgment and order dated 31st January, 1967 of the 'Madras High Court in Appeal No. 412 of 1962.\n\nN. Natesan, K. Jayaram and R. ChandraseRher, for the appellant\n\nGovind Swaminathan, N. S. Sivam, A. V. Rangam and A. Subha shini, for the respondent.\n\n• The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-This is a pedestrian appeal by a land-owner H whose property, having been acquired compulsorily by the State, asks\n\nfor more compensation, probably appetised by increases over the Collector's award granted by the City Civil Court and the High Court.\n\nThe grounds urged are conventional, based on comparison of pries shown in land sales in the neighbourhood and the general escalation of urban land values in the country.\n\ntr-\n\nA 127 odd 'grounds' (a ground is aronnd 5-112 cents; .actually- 2,400 sq. ft) were acquired in 1959 for the i:onstruction of a Housr ing Colony for the Madras Port Trust employees by the then :Madras State. They comprise R. S. No. 4032/1 and other items with which we are not concemec~, since the owners of those items have not come up in appeal to this Court .. The relevant notification under s. 4( 1) B was made on August 12, 1959 and so the compensation has to be pegged to the market value as on that date. Of course, 16 years have rolled by since, thanks to delay which bas come to stay in the administrative and forensic processes of our land. That is by the way. The Land Acquisition Officer awarded Rs. 800/- per ground. The City •\n\nCivil Court, approaching the problem of valuation plot; wise, as for, a housing colony, made the necessary deductions involved in that C process and awarded at the rate. of Rs. 1,000/- per ground.\n\nThe .,- High Court, on appeal, made an upward revision, c!iscarding the trial • court's approach and awarded Rs. 1,800/- per ground.\n\nThe State • has not come up in appeal, but the unquenched claimant asks ; for more in appeal, demanding at least Rs. 2,200/- per ground.\n\nGenerally speaking, a cardinal component in the escalation of prices of urban realty which does not find sufficient expression in the ancient Land Acquisition Act, 1894 is the developmental operations inevitable in a rapidly industrialising society for which the individual owner ' makes no social contribution. Be that as it may, courts have to apply the legislation as extant, it being left to the law-makers to harmonize social justice which individual rights by appropriate reforms.\n\nWe have to proceed to determine the compensation according to the canons crystallized in s. 23 of the Act .\n\n. At ihe outset, we must. warn ourselves of the broad guideline that in an appeal from an award granting compensation this Court F will not interiere unless there is something to show not merely that on the balance of evidence it is possible to reach a different conclusion but that the judgment cannot be supported by reason of a wrong . • application or principle or because some important point affecting valuation has been overlooked or misapplied.\n\nMoreover. there is a prudent condition to which the appellate power, generally speaking, is subject. A court of appeal interferes not when the judgment under < _ G . attack is not right but only when it is shown to be wrong. These twin . principles serve as backdrop to our approach to the rival_ contentions in the case. · · ·\n\nIt is true that compem.atio'u for c~pulsry . acqulsition, as gcr vemed by s. 23, gives high priority to the market value of the land at the date of the publication of the notification imder s. 4, sub-s. (1).\n\nH But what is market value ? It is a common place of this branch of jurisprudence that the main criterion is what a willing purchaser would • pay a willing vendor.' Ordinarily a party will be entitled to get the amount that he actually and willingly paid for a particular property; provided the transaction be bona fide and entered into with due regard to the prevalent market conditions. and is proximate in time to the relevant date under s. 23.\n\nWe may even say that the best evidence of. ·. the value of property is the sale of tlu!very property to which ,._\n\n...\n\nthe claimant is a party. If the sale is of recent date, then all that need normally be proved is that the sale was between a willing purchaser and a willing seller, that there has not been any appreciable rise or fall since and that nothing has been done on the land during the short interval to raise its value (See Parks 'Principles & Practice of Valuations' p. 29-Eastern Law House--Calcutta,-IV Edition 1970). But if the sale was Jong ago, may be the Court would examine more recent sales of comparable lands as throwing better light on current land value.\n\nWe emphasize this facet because the appellant himself purchased the land in question just ten months before the notification under s. 4(1), at a price of Rs. 410 per ground. There was a pond in the pot, the filling up of which is alleged to have cost some extra money according to the appellant, but he gave no evidence before the court on this matter with the result that we arc left with the estimate made by the Public Works Department for the filling up of the pond wliich works out at a much lesser figure.\n\nIn short, less than a year before the date of commencement of acquisition proceedings, the appellant himself had purchased this land at a price around Rs. 450 (making allowance for the pond which he had filled up) and he has been awarded Rs. 1,800 per ground by the High Court Instead of wandering around neighbouring lands or guessing as to what the_ price of the disputed land might have been, we have before us the actual purchase of the suit property by the appellant himself and he has not set up any case of special features or circumstances depressing the land value or affecting the particular transaction so that one could ignore that sale as the product of artificial circumstances.\n\nWe have thus a situation where the law should express a judgment from the experience of the appellant himself as against a judgment from speculation based on other transactions.\n\nClinching evidence to correct uncertain prophesy is furnished here by the claimant's conduct.\n\nAn actual transaction with respect to the specific land of recent date is a guide-book that courts may r not neglect when called upon to fix the precise compensation.\n\nViewed fri>m a slightly different aspect, it is but fair that compulsory landacquisition while assuring a just equivalent should not be converted into an avaricious windfall. Can an owner who brought the land at Rs. 400 per ground and laid out a little more money on it, grouse on the score of inadequate or unjust recompense, if within a year after his own purchase he is paid by the State 400 per cent of what he G spent for the identical land ? Neither morality nor legality is violated in such a ca.se; for even a black marketeer's bosom may not be uneasy at the prospect of such a fortune which he could not have bargained for when he became the owner of the land some months before. 'It is the duty of the state or federal government, in the conduct of the inquest by which compensation is ascertained, to see that it is just, not merely to the individual whose property is taken, but to the public H which is to pay for it' (See 27 Am Jur 2nd paragraph 266, p. 53 of Vol. 27). All things considered, the appellant stands self-condemned by his own deed of purchase. .\n\nProperty valuation as a practfaed art is greatly influenced by legal and economic constraints. But, in this case, we do not have any\n\n\"A complex considerations since helpful indicators are. available. Pr!ce\n\npaid by the owner recently represents an expression of market . value, as bona fide evidence of value, subject, to such matters as (a) the relationship of the parties; (b) the market conditions and the. terms of sale and (c} the date of sale .. It may not end the enquiry but goes a long way to solve the problem.\n\nIn this concction it may be useful B to refer to the . decision of this Court in S. L. A. Officer v.\n\nT .A. Setty(1 ) where it was observed :\n\n\"It is not disputed that the function of the court in award- · ing compensation under the Act is to ascertain the market value of the land at the date of the notification• . under ·· S. 4(1) and the methods of valuation may be (1) opiniol) of experts, (2) the price paid within a reasonable time in bone fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing sirni-, Jar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquir- . ed\"~.\n\n(p. 432, para 9-emphasis; ours)\n\n Appreciating this lethal consequence, Sri Natesan, learned counsel, suggested rather obscurely that there might have . been pecuc\n\nliar possibilities why this land was sold to his client at a low price.\n\nBut the reasoning breaks down because the claimant has not even hinted in his pleading or cared to testify what special circumstances played upon the transaction by which he got this identical land at the price he paid. We cannot be swayed by surmises floating in midair, particularly where the party who urges these feathery likelihoods stood mute at the trial stage.\n\nHe failed to speak only to become a martyr for silence. ·\n\nSri Natesan switched on to the prices of other lands in the locality to overcome the self-created obstacle of his client's purchase. 'J'.his is specious logic- When decisive evidence of the market value. of the land compulsorily acquired is unavailable you seek light from com~ parable neighbourhood. Such is not the case here. Even so, we travelled with counsel on to other lands, to gather whether any grave G error had crept into the High Court's assessment. The discovery made was that lands in the near neighbourhood were sold sometime earlier at prices ranging from Rs. 300 . to Rs. 400 and in one case Rs. 900 (Ex. R2 to R7) while distant neighbours like that covered by Ex. Cll were valued by court at around Rs. 2,200 or Rs. 2,400\n\nper ground. This wide disparity may be a trifle mystifying. Even so, we go by lands close by and not by one a mile-and-half. away as Ex-Cll H plot. In an industrial area, land prices are sensitive to an intricate variety of factors.· ·\n\nPropinquity to highway or ports and. many. industriai. and social: imponderables enter the verdict of evaluation. So much so we cannot antomatically assert, witlt reference to a piece _of l_::nd a mile-and-half\n\n. (I) AJ.R. 1959 S.C. 429 ,\n\n...\n\n/ / ·- ...\n\naway, tha1 it serve5 as a guide for fixing the price of the suit plot.\n\nWhat the High Court has done is to have at the back of its mind the various sales, Exhibits R2 to R7, which fall far below the value demanded by the claimant and the high prices awarded by the same High Court in regard to ot11er lands distances away, have regard to the then growing industrial potential and make an intelligent guess.\n\nMay be as the learned Advocate General has pointed out, in theilight of evidence regarding the precise land and the particular owner, there was no justification for awarding such a high price as has been dune but the State has not bothered to come up in appeal and we cannot hold that the High <s:ourt was in error in making out of the totality of materials available, a best judgment assessment of the market value.\n\nNo serious flaw in principle, no omission to consider important material or like infirmity has been pointed out to fault the judges on\n\ntl1e appraisal.\n\nNevertheless, Shri Natesan contended strenuously that the sales showing low prices were not reliable for two reasons. They were 'distress' sales and prices had gone up from the dates of those deeds which were of 1949-50. Neither argument is conclusive. True, a few of the sales D suggest some press11re inducing the vendors to dispose of their land. But there are other deeds which are unbjemished by any such depressant.\n\nHaving gone through the documents in question we are satisfied that none of the sales bear marks of throwaway prices.\n\nThe other argument that prices must have inexorably risen from 1949 to 1959 is no axiomatic proposition. True, generally speaking, there has been an inflationary spiral in India which has not spared realty. But there is evidence in the present case to show that between 1949 and 1952 lands in this very area stood stationary in their prices.\n\nVarious geo-economic factors have affected land prices, some to boost them, others to slump them. Therefore we cannot be persuaded to hold tl)at a relentless rise in land prices has come to stay. Take but one example : If a land adjoins a factory which needs to be expanded further, a higher price may be offered by that factory owner.\n\nLikewise, if a heavy tax on construction of buildings or ceiling on vacant urban land is in the offing, prices of building sites may come down. It may even be said that such a factor as the application of the MISA to smugglers may depress prices of many items, including land and foreign cars, in certain places. Another exotic example. In some\n\nAmerican cities the influx of certain coloured races into the downtown area brings down the market value of real estate, under current social conditions.\n\nWhile it is true that the area we are concerned with is an industrial belt, we carmot forget that there are housing colonies also as adjuncts so that some lands may be less suitable for industrial buildings but may still be useful for workers' houses. It is in evidence that the plots acquired here had ponds, the appellant himself having filled up the pond in his plot.\n\nThis shows incidentally that highrising construc, tions may require pile-driving at high cost. We need , not guess at the various chancy factors except to state that having\n\nIOSC/75-27\n\nA due regard to the conspectus of circumstances, including the appelt !ant's own cost price, the Court has made a sound judgment. In this view; we do not think there is need for further discussion of the facts pressed before us by the appellant. We agree with him that the purpose for which the land is acquired has no bearing on the value to be determined by the Court but our couclusion remains unaltered.\n\nB We see no reason, no law nor justice, to interfere with the judgment under appeal. Maybe, the appellant :i'3 aggrieved that slightly inferior lands acquired simultaneously and adjoining his plot have been given the same value as has been awarded to him. It may also be that each court he has approached has improved upon the price awarded by the earlier one and therefore he might have obtained certificate hopefully.\n\nC And looking at his lost land now, years later, when real estate has risen in price much more, he may sigh at what is fixed and strive to get more.\n\nBut a closer examination has disclosed no error in principle in the High Court's judgment nor has any of the limited ground on which this Court's jurisdiction can be legitimately exercised been made out.\n\nD The appeal is dismissed but, in the circumstances, without costs.\n\nP.H.P.\n\nAppeal dismiseed", "total_entities": 14, "entities": [{"text": "DOLLAR COMPANY, MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "DOLLAR COMPANY, MADRAS", "offset_not_found": false}}, {"text": "COLLECTOR OF MADRAS", "label": "RESPONDENT", "start_char": 24, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "COLLECTOR OF MADRAS", "offset_not_found": false}}, {"text": "R. 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{"document_id": "1975_1_409_414_EN", "year": 1975, "text": "...\n\nMALOON LAWRENCE CECIL D' SOUZA A\n\nUNION OF INDIA & ORS.\n\nMay lst, 1975 B\n\n[A. N. RAY, C. J., H. R. KHANNA, M. H. BEG, ANDY. V.\n\nCHANDRACHUD, JJ.]\n\nConstitution of India, 1950, Article 16-Seniority List, validity of- Promotion of petitioner as Assistant Commissioner of Income-Tax prior to\n\nrespondrus 4 to 26-Petitioner, if could claim seniority over respondents in C .subsequent ser.iority list.\n\nOn July 1, 1947 the petitioner was appointed Income-Tax Offir Class IT.\n\nOn August 12, 1949 the petitioner was appointed Income-Tax Officer Class I Grade II in post-1945 vacancy reserved for candidates with war service.\n\nOn January 24, 1950 a seniority list of Income-Tax Officers Class I Grade JI as on January 1, 1950 was issued on the basis of 1947 Seniority Rules. The petitioner was shown in that list senior to respondents 4 to 26. The same position was reflected in a seniority list issued in 1958. The petitioner was prompted as Income Tax Officer Class I Gtade I with effect from January 1, 1951 and confirmed in that post from the said date. The Rules of 1974 were revised and in supersession of them 1952 Seniority Rules were issued by the Ministry of Home Affairs.\n\nThe Income-Tax department took -some time to revise the seniority list of Income-tax Officers Class I in accordance with 1952 Seniority Rules and finally on November 26, 1956 revised seniority list of Income-tax Officers Class I Grade I as on October, 1 1956, was issued.\n\nIn this list respondents 4 to 26 were shown senior to the petitioner and were entitled to be promoted to higher posts earlier than the petitioner. Another \"Seniority list of Assistant Commissioners was issued as on January l, 1958 in conformity with the earlier list of 1956 showing the petitioner to be junior to respondents 4 to 26.\n\nBy this time the petitioner and respondents 4 to 26 had all been promoted Assistant Com.missioners.\n\nThis Court in Karnik's case 78 I.T.R. 243 held that the following princi- \\ples emerge from 1952 Rules for determining the_ seniority. (i) Between Jncometax officers promoted at the same meeting, their seniority inter se will be reflected in the list of Assistant Commissioners of Income-tax; (ii) Between an officer promoted earlier and another officer senior to him but who was not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre; (iii) Where the senior officer was considered and not promoted, and the junior officer \\Vas promoted at that meeting. the order of promotion will govern seniority in the higher grade and (iv) Where senior officer is promoted and confirmed and at a later meeting a junior officer is promoted, the latter cannot claim to be placed above the senio1 officer in the higher cad.re relying upon the circumstance that he could not be considered for promotion at the earlier meeting, because he had not to his credit the qualifying minimum service.\n\nIn pursuance of the above judgment of this Court, seniority of. Income-tax\n\nAssistant Commissioners promoted before Avril 1. 1964 was recast and new seniority list was issued on February 1, 1971. The petitioner filed this writ petition challenging the seniority list of Additional Commissioners of Incometax as on February 1, 1971 circulated by the Government of India, Ministry of Finance. '\n\nIt was contended on behalf of the petitioner that as he was promoted Assistant Commissioner on August 19, 1955 while respondents 4 to 26 were promoted to that post subsequent to that date, the petitioner should be shown senior to those respondents.\n\nRejecting the contention and dismissing the \\Vrit petition.\n\nHELD : (i) The fact that the petitioner was promoted a'i Assistant Con1missioner prior to respondents 4 to 26 \\Vould not make him senior to respondents 4 to 26 because according to the seniority list issued on the basis of 1952 Seniority Rules the above mentioned respondents were senior to the petitioner. The seniority of the petitioner vis-a-vis respondents 4 to 26 has. to be delermined in the light of proposition No. 2 laid do\\\\n by this Court in Karniks case, according to which bet ween an officer promoted earlier and another officer senior to him. but who \\Vas not considered in the meeting \\\\hen the former \\Vas promoted, seniority in the list of Income-tax Officers. will be reflected in the higher cadre.\n\nAs respondents 4 to 26 were admittedly sho\\vn senior to the petitioner in the list as on October 1, 1956 prepared in accordance with 1952 Rules, their seniority qua the petitioner would be reflected in the higher cadre of Assistant Commissioner. [ 412 GH]\n\n(ii) It has not been sho\\vn that the names of respondents 4 to 26 were also considered in the meeting wherein a decision was taken to promote the petitioner as Assistant Commissioner. Assuming that a decision to promote f'espondents 4 to 26 to the posts of Assistant Commissioners was taken at the same meeting in which it \\Vas decided to promote the petitioner, in that event proposition No. 1 in Karnik's case would be attracted. Even in such a contingency the seniority of respondents 4 to 26 qua the petitioner \\Vould be reflected in the list of Asslstant Commissioners. In the seniority list of Assistant Commissioners issued in 1958, the petitioner was shovm junior to respcndeats 4 to 26 in conformity with the seniority list of 1956.\n\nIn the matter of confirmation to the post of Assistant Commissioner, six out of respondents 4 to 26 confirmed earlier then the petitioner. v.hil~ the rest of them were confirmed at the same time as the petitione-r.\n\nThe impugned list of seniority circulated in 1971 merely reflected the seniority of the petitionet'\" qua respondents 4 to 26 as determined in 1956. [412 H, 413 AC]\n\nS. K. Gliosh & Anr. v. nion of India & Ors., [1968] 3 SCR 631 referred to.\n\nHELD FURTIIER-(iii) The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated i.n the seniority list issued in 1958. The present writ petition was filed in 1971. No satisfactory expJnnation has been furnished by the petitioner for the inordinate delay in approaching the court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but the representation was rejected in 1961.\n\nNo cogent ground has been shown as to why the petitioner becarn~ quiescent and took no dilige.nt steps to obtain redress. The petitioner, therefore, cannot be allowed to challenge the seniority list after lapse of so many years. [413EFGHJ\n\nORIGINAL JURISDICTION : Writ Petition No. 296 of 1971.\n\nG Under Article 32 of the Constitution of India.\n\nRam Panjawani and B. R. Agarwala, for the petitioner.\n\nS. N. Prasad and S. P. Nayar, for respondents Nos. 1 to 3.\n\nMemo for the respondents Nos. 4 to 26.\n\nThe following Judgment of the Court was delivered by\n\nKTIANNA, J.-This is a petition under article 32 of the Constitution of India by Malcom Lawrence Cecil D'Souza, Additional Commissioner of Income-tax for an appropriate writ to quash the seniority list of the Additional Commissioners of Income-tax as on February L 1971 circulated by the Government of India, Ministry of Finance. The petitioner claims that he is senior to respondents 4\n\nto 26, but in tlie impuged list he is shown junior to those respon- A dents.\n\nPrayer has also been made by the petitioner for other consequential reliefs.\n\nApart from respondents 4 to 26, the petitioner has impleaded the Union of India, the Secretary, Ministry of Finance, Department of Revenue and the Chairman. Central Board of Direct Taxes as respondents 1 to 3.\n\nThe petitioner served in the Royal Navy as a Sub-lieutenant from March 1945 till November 1946 when he was released from the naval service because of the end of war.\n\nOn July 1, 1947 the petitioner was appointed Income-tax Office Class II. On August 12,\n\n1949 the petitioner was appointed Income-tax Officer Class I Grade II in post-1945 vacancy reserved for candidates with war service.\n\nOn January 24, 1950 a seniority list of Income-tax Officers Class I Grade II as on January l, 1950 was issued on the basis of 1947 Seniority Rules.\n\nThe petitioner was shown in that list senior to respondents 4 to 26.\n\nThe same position was reflected in a seniority list issued in 1953. The petitioner was promoted as Income-tax Officer Class I Grade I with effect from January 1, 1951 and confirmed in that post from the said date.\n\nAccording to 1947 , Rules, the seniority of candidates inter se appointed to post-1945 vacancies was to be determined by age irrespective of the category from which they were recruited.\n\nThe Rules of 1947 were revised and in supersession of them 1952 Seniority Rules were issued by the Ministry of Home Affairs.\n\nAccord- E ing, inter alia, to 1952 Seniority Rules, the break in service was not to be taken into account for determining the seniority of persons confirmed against post 1945 was reserved vacancies. The Income-tax Department took some time to revise the seniority list of Income-tax Officers Gass I in accordance with 1952 Seniority Rules and finally\n\non November 26, 1956 the revised seniority list of Income-tax Officers Class I Grade I as on October 1, 1956 was issued.\n\nIn this list F respondents 4 to 26 were shown senior tO the petitioner and were entitled to be promoted to higher posts earlier than the petitioner.\n\nAnother seniority list of Assistant Commissioners was' issued as on January 1, 1958.\n\nThis list was in accordance with the earlier list of Income-tax Officers as on October I, 1956 showing the petitioner to be junior to respondents 4 to 26.\n\nIt may be stated that by this time the petitioner and respondents 4 to 26 had all been promoted G Assistant Commissioners.\n\nThe seniority list of Income-tax Assistant Commissioners as on August I, 1965 was challenged by Assistant Commissioner Vasant J ayaram Karnik in Gujarat High Court by means of a writ petition filed in 1967.\n\nThe High Court allowed that petition and issued a writ quashing the seniority list as on August L 1965 in so far as H that list showed several officers senior to Karnik and another officer B. S. Nadkarni.\n\nThe High Cour{ gave its own interpretation of the 1952 Seniority Rules.\n\nAn appeal was filed in this Court on behalf of the Union of India against the above judgment of the Gujarat High Court in 1969.\n\nThis Court as per judgment dated September 7, 1970, reported in 78 ITR 243 dismissed that appeal.\n\nThis Court\n\nA held that the following principles emerge from 1952 Rules for determining the seniority :\n\n\"(i) Between Income-tax Officers promoted at the sam~\n\nmeeting, their seniority inter se will be reflected in the list of Assistant Commissioners of Income-tax;\n\n(ii) Between an officer promoted earlier and another officer senior to him, but who was .not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre;\n\n(iii) Where the senior officer was considered and not promoted, and the junior officer was promoted at that meeting, the order of promotion will govern seniority in the higher grade ;\n\n(iv) Where a senior officer is promoted and confirmed and at a later meeting a junior officer is promoted. the latter cannot claim to be placed above the senior officer in the higher cadre relying upon the circums tance that he could not be considered for promotion at the earlier meeting, because he had not to his credit the qualifying minimum service.\"\n\nIn pursuance of the above judgment of this Court, seniority of Income-tax Assistant Commissioners promoted before April 1, 1964 was recast and the impugn.ed seniority list was accordingly issued.\n\nThe petition has been resisted by the respondents and the affidavit of P. S. Mehra, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue and Insurance has been\n\nfil~ in opposition to the petition.\n\nIt has been argued by Mr. Ram Panjwani on behalf of the petitioner that as he was promoted Assistant Collllllissioner on August 19, 1955 while respondents 4 to 26 were promoted to that post subsequent to that date, the petitioner should be shown senior to those respondents.\n\nWe find it difficult to accede to this contention.\n\nThe fact that the petitioner was promoted as Assistant Commissioner prior to respondents 4 to 26 would not make him senior to respondents 4 to 26 because according to the seniority list issued on the basis of 1952 Seniority Rules the above-mentioned respondents were senior to the peiitioner.\n\nThe seniority of the petitioner vis-a-vis respondents 4 to 26 has to be determined in the light of proposition No- 2 laid down by this Court in Karnik's case (supra), according to which between an officer promoted earlier and another officer senior to him. but who was not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre.\n\nAs respondents 4 to 26 were admittedly shown senior to the petitioner in the list as on October L 1956 prepared in accordance with 1952 Rules, their seniority qua the petitioner would be reflected in the higher cadre of Asistant Commissioners. It ,!:tas\n\nnot been shown to us that the names of respondents 4 to 26 were\n\nalso considered in the meeting wherein a decision was taken to pro- A mote the petitioner as' Assistant Commissioner.\n\nAssuming that a decision to promote respondents 4 to 26 to the posts of Assistant Commissioners was taken at the same meeting in which it was decided to promote the petitioner, in that event proposition No. 1 in Karnik's case (supra) would be attracted.\n\nEven in such a contingency the . seniority of respondents 4 to 26 qua the petitioner would be reflected B in the list of Assistant Commissioners. In the seniority list of ASsistant Commissioners issued in 1958, the petitioner was shown junior to respondents 4 to 26 in conformity with the seniority list of 1956.\n\nIn the matter of confirmation to the post of Assistant Commissioner, six out of respondents 4 to 26 were confirmed earlier than the petitioner, while the rest of them were confirmed at the same time as the petitioner. The impugned list of seniority circulated in 1971 merely C reflected the seniority of the petitioner qua respondents 4 to 26 as determined in 1956.\n\nThe case of S. K. Ghosh & Anr. v. Union of India & Ors(') to which reference has been made on behalf of the petitioners can be of no assistance to him as that case related to rules for recruitment to the grade of Directors of Postal Services in Indian Postal Service.\n\nSo far as the seniority of the petitioner vis-a-vis respondents 4 to 26 is concerned, the matter is governed by 1952 Seniority Rules and those rules as already mentioned have been the subject of the decision of this Court in Karnik's case (supra). In view of the direct decision of this Court relating to the precise question with which we concerned, it is not necessary, in our opinion, to refer to other rules.\n\nThe matter can also be looked at from another angle.\n\nThe seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 iu accordance with 1952 Rules.\n\nThe said seniority was reiterated in the seniority list issued in 1958.\n\nThe present writ petition was filed in 1971.\n\nThe petitioner, in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years.\n\nThe fact that a seniority list was issued in 1971 in pursnance of the decision of this Court in Karnik's case (supra) would not clothe the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority list of 1971 merely reflected the seniority of tb petitioner qua those respondents as already determined in 1956.\n\nSatisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years.\n\nIt is essential that any one who feels aggiieved with an administrative decision affecting one's seniority should act with due diligence and promptitude and not sleep over the niatter.\n\nNo satisfactory explanation bas been furnished by the petitioner before us for the inordinate delay in approaching the court.\n\nIt is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent ground has been shown as to why 'the petitioner became quiescent and took no diligent steps to obtain redress.\n\nAlthough security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one\n\n(lf(1968] 3 SCR 631.\n\nA of the essential requirements of contentment and efficiency in puplic\n\nservices is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet.\n\nRaking up old matters like.\n\nB seniority after a long time is likely to result in administrative complication, s and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matter. should be , given a quietus after lapse of some time.\n\nThe writ petition fails and is dismissed but in the circumstances C Without costs.\n\nV.M.K.\n\nPetition dismissed.", "total_entities": 14, "entities": [{"text": "MALOON LAWRENCE CECIL D' SOUZA", "label": "PETITIONER", "start_char": 5, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "MALOON LAWRENCE CECIL D'SOUZA", "offset_not_found": false}}, {"text": "A\n\nUNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 36, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 80, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "H. R. 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{"document_id": "1975_1_415_423_EN", "year": 1975, "text": "1 '\n\nCHEMICALS & FIBRES OF INDIA LTD.\n\nD. G. BHOIR & ORS.\n\nMay 2, 1975\n\n[A. ALAGIRISWAMI, P. N. BHAGWATI AND P. K. GOSWAMI, JJ.]\n\nIndustrial Disputes Act, 1947, Sections ZA and 23 (b)-\"During the pendency of proceedings'', 111ea11il1g of-Reference pening before Labour Cout in respect of n1atter falling under S. 2A-Stnke by other ivorkn1e1:·, if barred.\n\nOn 14th August, 1972 the Government of ]\\.faharashtra made a reference to the Labour Court under s. !O{l)(c) of the Industrial Displ1tes Act of an industrial dispute in respect of the dis.missal by the appellant of one of its employees N. S. Bobhate.\n\nOn 25th August 1972 the appellant dismissed three other workers, Dastoor, Shome and Soman after an i::; nq uiry and this led to a strike in the appel1ant's factory. Towards the end of October 1972 the Company discharged about -312 of its employees and filed 12 applications be- D fore the Industrial Tribunal for approval of such discharge as a reference was pending before it. . The appellant pleaded before the Tribunal that the strike was illegal as a reference was pending in respect of Bobhate and therefore the discharge of its workers by the appellant \\Vas in order and approval should be granted.\n\nOn August 30, 1973 the Tribunal rejected all the applications for approval and these appeals. have been filed in pursuance of a Special Leave granted by this Court\n\nIt was contended on behalf of the appellants __ that the whole of the machinery under the Act is available in the case of a reference relating to an individual workman and one~ something which is not an industrial dispute is deemed to be an industrial dispute all the necessary implications of such a deeming provision should be given effect to.\n\nOn the other hand, contention on behalf of the \\Vorkmcn \\vas that, if the intention was to make the v.'hole of the machinery of the Act available even in the case of pendcncy of the case of an individual \\vorkman before a Labour Court or Tribunal what would have been done is to add the words \"and includes any dispute or difference between a workman and his employer connected with or arising out of the discharge, dismissal, retrenchment or termination of the services of that \\Vorkman notwithstanding that no other workman nor any union of workmen is a party to the dispute\" to clause (k) of sec. 2.\n\nIt was further contended that the dispute or diITerence between the individual workman and '\n\nhis employer is only deemed to be an industrial dispute and that it is not in fact an industrial dispute. In the case of a deeming provision no greater effect should be given to it than is necessary for the purpose for which it is enacted.\n\nDisrnissing the appeals,\n\nHELD : (i) The important words in S. 23(b) of the Act are \"during the pendency of proceedings.\" Eve, n though the dispute between the employer and the employees might relate to a case of a single workman the provisions of s. 23 (b) would apply if the single workman's cause has been espoused by H a labour union \\Vhich need nut necessarily comprise of all the employees <tf the concerned employer. [418 A-BJ\n\n(ii) Even lhough the proceedings pending before the Labour Court, Tribunal or National 'fribunal might telate to certain matters only. there cannot be a strike or lock-out even in relation to matters other than those which are pending before the Labour Court, Tribunal or National Tribunal. [418 B-C]\n\nSUPREME COURT REPORTS (1975] supp. S.C.R.\n\nProiat Kuntar v. W. T. C. Parker, AIR 1950 Cal. fliJu1r v. Deodar iha, AIR 1958 Patna 51, approved.\n\n116 and State of\n\n(ii.i) Jn enacting S. 2A the intention of the legislature was that an individual \\Vorkman who was discharged, dismissed or retrenched or whose services were otherwise terminated should be given relief without it being necessary for the relationship between the employer and the v, rhole body of employees being attracted to that dispute and the dispute becoming a generalised one between labour on the one hand and the employer on the other. [418H, 419A}\n\ntiV) The provisions of the Industrial Disputes Act clearly bring out the elaborate nature of the proceedings relating to conciliation, arbitration, settlement, inquiry and ward.\n\nThe intention behind all these provisions is to avoid strikes and lock-outs as far as possibic not only by bringing the parties together but also by referring point!> of dispute between them, either voluntarily or otherwise, for decision by Labour Courts.\n\nTribunals and National 'fribunals.\n\nStrikes arc not banned even in the caw of public utility services.\n\nThe ban on strikes is subject to certain lin1itations.\n\nThere is no doubt that the Act recognises strikes as a legitimate \\Veapon in the matter of industrial relations.\n\nThe prohibition of strikes during the pendency of proceedings before a Labour Coi.irt, Tribunal or National Tribunal under sec. 23 \\Vas, in the /\\ct as originally cnacteU, confined only to disputes. between the employer and the general body of employees and not to individua] workmen. It is in that context that section 23 should be interpreted.\n\nIn the case of an industrial dispute between an individual worknan and the employer the whole claboraie machinery of the Industrial Disputes 1-\\ct may not be necessary lest it would be like using sledge-hammer to kill a flea.\n\nWhile there is justification for pre\\1enting a strike \\Vhen a dispute btween th~ employcT and the general body of 'vorkmen is pending adjudication or resolution, it \\VOuld be too much lo hold that the legislature intendeJ that a lid should be put on all strikes just because the case of a ~\\ngle workman was pending. That the general body of Jabour should be prevented from resorting to strike where they had chosen to espouse trtc cause of a single \\1, rorkman Jtc understandable and reasonable.\n\nEven if the employer and workmen are parties to a reference the decision therein binds them even though they may have said they \\Vere not interested in it.\n\nBut if strikes are to be prohibited merely because the case of an individual workman was pending,, y,.hose case had not been espoused by the general body of the workmen, there can never be any even for justicb.ble grounds [421 E-422AJ\n\nBellapur Collieries v. Presiding Officer, fl972J 3 S.C.R. 805 relied on Comrnissioncr of !11come-1ax v. Teja Si'ngh, rl9591 Supp. (1) S.C.R. 394 and East End D-u, ellings Co. -Ltd. v. Finsbury Borough Council. rI952l AC 109 at p. 132, referred to.\n\n(v) It is not correct to say that clause (b) of S. 23 provide:; a blanket ban o~ tries if proceedings are pe!Jdi~~· Even in espect of clause (b) some Itrn1tatron should be read confining it to the parties to the proceedings either actually or constructively as in the case of a Union espousing the cause of an individual uorkn1an. (f.422-H].\n\nTea The\n\nWork1nen of Di1nakuchi Tea EState v. The Managernent of Dinwkuchi Estate, r1958l S.C.R. 1156, and The Bon1bay Union of Journalists v. 'Hindu' Bombay, [1962] 3 S.C.R. 893, referred to.\n\nCIVIL APPELLATE JURISDICTION : 1644 of 1973 Civil Appeals Nos. 1633-\n\nAppeals by special leave from the order dated the 30th August, 1973 of the Industrial Tribunal, Maharashtra in Application No. (IT) 316 of 1972.\n\nY. S. Chitale, A. K. Sen, P. D. Damania and B. R. Agarwa/a, for the appellant.\n\n' -\n\nCliBM!CALS & FIBRES OF INDIA v. D. G. BHOIR (A/agiriswami, !.) 417\n\nV. S. Desai, S. T. Desai, Naunit Lal, D. H. Buch and Lalita A Kohli, for the respondents (In appeal No. 1634, respondent no. I in appeals Nos. 1633, 1635-38 & 1640-43 and respondent no. 1 and 2 in Appeal No. 1639 and respondents no. 1-3 in Civil Appeal No. 1644.\n\nThe Juc!gment of the Court was delivered by B\n\nALAGIRISWAMI, J. The question that arises in the appeals is the implication of section 2A of the Industrial Disputes Act.\n\nOn 14th August, 1972 the Government of Maharashtra made a reference to the Labour Court under section 10(1) (c) of the Industrial Disputes Act in respect of the dismissal by the appellant of one of its cmp- C ioyces M. S. Bobhate. On 25th August, 1972 the appellants dismissed\n\nthree other workers, Dastoor, Shame and Soman after an enquiry and this led to a strike in the appellant's factory.\n\nTowards the end of October 1972 the Company discharged about 312 of its employees and filed 12 applications before the Industrial Tribunal for approval of such discharge on the groU'lld that a reference was pending before\n\nit.\n\nThe appellant pleaded before the Tribunal that the strike was D illegal as a reference was pending in respect of Bobhate and therefore the discharge of its workers by the appellant was in orc!er and approval should be granted.\n\nOn August 30, 1973 the Tribunal rejected all the applications for approval and these appeals have been filed in pursuance of a Special Leave granted by this Court.\n\nThough reference was made to the repeated calls on behalf of the employer to the strikers to return to work and the refusal of the workmen to return to work, the sole point for determination is whether when a reference is pending before the Labour Comt in respect of a matter falling unc!er section 2A any strike by the other workers would be illegal.\n\nThat is the only ground on which Special Leave has been granted.\n\nUnder section 24 of the Industrial Disputes Act, in so far as it is relevant for the purposes of this case, a strike shall be illegal if it is commenced or declared in contravention of section 22 or section 23.\n\nWe arc not concerned with section 22 in !his case though at one stage that seems to have been one of the grounds for contending that the strike was illegal.\n\nSection 23, insofar as it is relevant for the purposes of this case, reads as follows:\n\n\"23. No workman who is employee! in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out.\n\n(a)\n\n(b) during the pendency of proceedings before a Labour Court. Tribunal or National Tribunal and two months after the conclusion of such proceedings;\n\n(bb) ...................................................... .\n\n(c) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.\"\n\n~UPREME COURT REPORTS\n\n[1975] SUPP S.G.R.\n\nThe important worc!s are \"during the pendency of proceedings\".\n\nUndoubtedly a proceeding was pending before the Labour Court and that was in respect of the dismissal of Bobhatc. Did this make the strike by the workmen of the appellant illegal though at least in its origin the strike had nothing to do with Bobhate's case \"? it was common ground that even though the dispt!lc between the employer and the employees might relate to a case of a single workman the provisions of section 23Cb) would apply if the single workman's cause has been espoused by a labour union which need not necessarily comprise of all the employees of the concerned employer. The decisions of some High Courts establish that even though the proceedings pending before the Labour Court, Tribunal, or National Tribunal might relate to certain matters only, there cannot be a strike or lock-out even in relation to matters other than those which are pending before the Labour Court, Tribunal or National Tribunal (see Provat Kumar v. W.T.C. Parkar, AIR, 1950 Cal. 116, and State of Bihar v. Deodar Iha, AIR 1958 Patna 51). We express our agreement with this view.\n\nBut the question is: does the fact that a proceeding is pending before a Labour Court in respect of an individual workman bar the other workers from resorting to a strike? Section 2A of the Industrial Disputes Act, which came into effect on l-l2-1965 reads as follows:\n\n\"2A. Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman ancl his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shaU be deemed to be an industrial dispute notwithstanding tint no other workman nor any union of workmen is a party tv the dispute.\"\n\nAn industrial dispute is defined in section 2(k) as follows:\n\n\"(K) 'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of Jabour, of any person.\" ·\n\nIt is in interpreting this clause that it has been held that even where the dispute relates to a single workman it is an industrial dispute if that dispute is espoused by the general body of the employees.\n\nBefore the introduction of section 2A an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated and whose case was not cspousecl by any H labour union or by a substantial number of workmen had no remedy.\n\nIt was to deal with that contingency that section 2A was enacted.\n\nWe would therefore be justified in concluding that in enacting section 2A the intention of the legislature was tlm't an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated should be given relief without it being necessary for the relationship between the employer and the whole\n\nCHEMICALS & FIBRES OF INDIA v. D. G. BHOIR (Alagiriswami, J.)\n\nbody of employees being attracted to that disp.ute and the dispute becoming a generalised one between labom on the one hand and the employer on the other. If this point of view is kept clear in mine the solution of the problem before us becomes simple.\n\nIn the Statement of Objects and Reasons of the Bill which resulted in the enactment of section 2A it is stated :\n\n. :'In construing the scope of industrial dispute, Courts have taken the view that a dispute between an employer and an individual workman cainnot per se be an industrial dispute, but it may become one if it is taken up by a union or a number of workmen making a common cause with the aggrieved incividual workman. In view of this, cases of individual dismissals and discharges cannot be taken up for conciliation or arbitration or referred to adjudication under the Industrial Disputes Act, unless they are sponsored by a union or a number of workmen. It is now proposed to make the machinery under the Act available in such cases.\"\n\nThis is reliec upon by the employer to contend that the who(e of the machinery under the Industrial Disputes Act is available even in the case of a reference relating to an individual workman. On the other hand it is urged on behalf of the workmen that if the intention was to make the whole of the machinery of the Industrial Disputes Act available even in the case of pendency of the case of an inilividual worf'..man before a Labour Court or a Tribunal what wonld have been done is to add the words \"and includes any dispute or difference between a workman and his employer connected with or arising out of the discharge, cismissal, retrenchment or termination of the services of that workman notwithstanding that no other workman nor any nnion of workmen is a party to the dispute\" to clause (k) of s.ection 2. lt is further contended that the dispute or difference between the individual workman and his employer is only deemed to be an incustrial dispute and that it is not in fact an industrial dispute.\n\nIt is contended on behalf of the employer that once something which is not an industrial dispU'te is deemed to be an industrial dispute all the necessary implications of such a deeming proviion should be given effect to and the mind should not be allowed to boggle in working out such implications (See East end DwelUngs Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 at p.132 and Commissioner of Income-tax v. Teja Singh, 1959 Supp.\n\nU). SCR 394).\n\nOn the other hand it is urged on behalf of the workmen that in the case of a deeming provision no greater effect should be given to it than is necessary for the pU'rpose for which it is enacted.\n\nBoth these contentions are amply supported by authority and the duty of this Court is to see what exactly are the necessary implications of the deeming provision.\n\nWe should say, however, that it does not make any difference to the decision of this question whether the deeming provision is in the form of a separate section like section 2A as in the present case or is part of the definition of the industrial dispute itself as is suggested it should be on behalf of the workmen.\n\nA We should first of all have a broad idea of the scheme of the Act.\n\nThe Act as framed originally was not enacted to deal with the case of individual displlte.\n\nIt was intended to deal with the problems arising between the employers on the one hand and the general body of workmen on the other though not necessarily the majority of the workmen.\n\nSection 3 of the Act provides for the B constitution of Works Committee to .promote measures for securing and preserving amity and good relations between the employer and workmen. Section 4 provides for appointment of conciliation officers charged with the duty of mediating in and promoting the settlement of industrial disputes (the definition of 'industrial dispute' in section 2(k) may be here kept in mine!).\n\nSection 5 provides for the constitution of Boards of Conciliation for promoting the settlement of C industrial disputes.\n\nSection 6 provides for constitution of Courts of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute.\n\nSection 7 proviees for constitution of Labour Courts for the adjudication of il)dustrial disputes.\n\nSection 7 A provides for constitution of Industrial Tribunals for the adjudication of industdal disputes relating to any matter spe- D cified in the Second and Third Schedules to the Act.\n\nSection 7B provides for constitution of National Industrial Tribunals for the adjudication of industrial disputes involving questions of national importance or in which industrial establishments situated in more than one State are likely to be interested in or affected by.\n\nSection I 0 provides for reference of industrial disputes whether they exist or are apprehended to Boards of Conciliation for promoting a settle- E men!, or to a Labour Court or to an Industrial Tribunal for adjudication or even to a National Tribunal.\n\nIt also provides for parti1~ to an industrial dispute applying whether jointly or separately for a reference of the dispute to a Conciliation Board, Court of Inquiry, Labonr Court, Tribunal or National Tribunal.\n\nWhere a dispute has been so referred the appropriate Government is enabled to pro- F hibit the continuance of any strike or lock out.\n\nSection JOA provides for employers and wrokmen agreeing to refer their disputes to arbitration before a dispute has been referred under section I 0 to a Labour Court, Tribunal or National Tribunal.\n\nSection 12 pmvides for the duties of Conciliation Officers.\n\nSection 13 provides for the duties of Boards of Conciliation, section 14 for the duties of the Court of Inquiry and section 15 for the duties of Labour G Courts, Tribunals and National Tribunals. Section 12 (!) says that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.\n\nSection 18(3) says that a settlement arrived at in the course of conciliation proceedings shall be binding on:\n\n(a) all parties to the industrial dispute;\n\n(b) all other parties sllmmoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal as the case may be, records the opinion that they were so s!lmmoned without proper cause;\n\n' )\n\n~·-\n\nCHEMICAU & FIBRES OF INDIA v. D. G. BHO!R (Alagiriswanii, J.) 421\n\n(c) where a party referred to in clause (a) or clause (b) A is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates.\n\n(ct) Where a party referred to in clause (a) or clause\n\n(b) is composed of workmen, all persons who were B employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employee! in that establishment or part.\"\n\nSection 22 provides that there shall be n0. strike or lock-out in C a public utility service.\n\nSection 23 bars a strike or lock-out during the pendency oI conciliation proceedings before a Board, pendency of proceedings before a Labour Court, Tribunal or National Tribunal and during the pendency of arbitration proceedings before an arbitrator as also during any period in which a settlement or award is in operation.\n\nSection 24 provides that a strike or lock-ont shall D be illegal if it is commenced in contravention of section 22 or 23 or in contravention of an order made under sub-section (3) of section 10 or sub-section ( 4A) of section 1 OA.\n\nThese provisions bring out the elaborate nature of the proceedings relating to conciliation, arbitration, settlement, inquiry and . award.\n\nE The intention behind all these provisions is to avoid strikes and lock-outs as far as possible not only by bringing the parties together but also by referring points of dispute between them, either voluntarily or otherwise, for decision by Labour Courts, Tribunals and National Tribunals.\n\nStrikes are not banned even in the case of public utility services.\n\nThe ban on strikes is subject to certain limitations. There is no doubt that the Act recognises strikes as a F legitimate weapon in the matter of industrial relations.\n\nWe need not concern ourselves about aberration like gheraos, or go-slow. The prohibition of strikes during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal under section 23 was, in t11e Act as originally enacted, confined only to disputes between the employer and the general body of employees and not to individual workmen. It is in that context that section 23 should be in- G terpreted. In the case of an industrial dispute between an individual workman and the employer the whole elaborate machinery earlier set forth of the Industrial Disputes Act may not be necessary lest it would be like using a sledge-hammer to kill a flea.\n\nWhile there is justification for preventing a strike when a dispute between the employer and the general body of workmen is pending ac!judication or resolution, it would be too much to expect that the legislature H intended that a lid should be put on all strikes just because the case of a single workman was pending. That the general body of labour should be prevented from resorting to strike where they hacl chosen to espouse the cause of a single workman is understandable and reasonable. It has even been held that if the employer and workmen are parties to a reference the decision therein binds them\n\nA even though they may have said they were not interested in it (Baltarpur Collieries v. Presiding Officer, 1972 (3)\n\nSCR 805).\n\nBut if strikes arc to be prohibitee merely because the case of an individual workman was pending, whose case had not been espoused by the general body of the workmen, there can never be any strike even for justifiable grounds.\n\nA strike is a necessary safety valve in indus- B trial relations when properly resorted to.\n\nTo accede to the contention of the employer in this case would be in effect acceding to a contention that there should never be a strike.\n\nWhile we realise the importance of the maintenance of industrial peace, it cannot be secure<> by putting a lid on the legitimate grievances of the general body of labour because the dispute relating to an individual workman under s.2A is pending.\n\nThat might mean that the boiling caul- C dron might burst.\n\nIn that case the general body of workmen would be legitimately aggrieved that they are prevented from striking because an indivieual's case was pending with which they were not concerned.\n\nIt is not enoogh in this situation to say that it is always open to the Government to make a reference under section 10. It may or may not happen. Furthermore, the matters that could be pending before D a Labour Court under section 23 under the Second Schedule are:\n\n1. The propriety or legality of an order passed by an employer under the standing orders;\n\n2. The application and interpretation of standing orders;\n\n:i. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed;\n\n4. Withdrawal of any customary concession or privilege;\n\n5. Illegality or otherwise of a strike or lock-out; and\n\n6. All matters other than those specified in the Third\n\nSchedule.\n\nThe propriety or legality of an order passed by an employer under the standing orders very often might refer to an individual workman and that sboule not be made the reason for preventing labour from giving vent to its legitimate grievances in a legitimate way.\n\nOur attention is drawn to the contrast between clause ( c) and\n\n(d) of section 23 and it is argued that while under cfause (c) there is a limitation in respect of matters in relation to which there can!lot be a strike, there is no such limitation under clause (b) and therefore clause (b) provides a blanket ban on strikes if proceedings are pending.\n\nIt is not possible to give such an exteneed meaning to A that provision.\n\nAs we have pointed out, even in respect of clause\n\n(b) some limitation should be read confining it to the parties to the proceedings either actually or constructively, as in the case of a union espousing the cause 'of an individual workman.\n\nNobody, for instance, can argue that because proceedings are pending in relation to one industrial establishment owned by an employer, there can be no strike in another ineustrial establishment owned by that\n\nCHEMICALS & FIBRES OF INDIA V, D. G, BHO!R (Alagiriswami, J,) 423\n\nemployer because there are uo words of limitation in clall6e (b), A See Workmen of Dimakuchi Tea Estate v. -The Management of Dimakuchi Tea Estate, 1958 SCR 1156, where it was held that the word 'any person' cannot be given its ordinary meaning.\n\nSec also The Bombay Union of Journalists v. The 'Hindu' Bombay, 1962\n\n(3) SCR 893.\n\nWe are therefore of opinion that the proper point of view fro!ll which to look at the problem is to give limited application to the fact of the introduction of section 2A in the Industrial Disputes Act and to hold that the pendency of a dispute between an inc!ividual workman as such and the employer does not attract the provisions of section 23.\n\nThe appeals are therefore dismissed with costs.\n\nV.M.K.\n\nAppeals dismissed.\n\nIOSC/75-28", "total_entities": 71, "entities": [{"text": "CHEMICALS & FIBRES OF INDIA LTD", "label": "PETITIONER", "start_char": 5, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "CHEMICALS & FIBRES OF INDIA LTD", "offset_not_found": false}}, {"text": "D. G. BHOIR & ORS", "label": "RESPONDENT", "start_char": 39, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "D. G. BHOIR & ORS", "offset_not_found": false}}, {"text": "A. 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{"document_id": "1975_1_424_427_EN", "year": 1975, "text": "S. KALAWATI\n\nDURGA PRASAD & ANR.\n\nMay 2, 1975\n\n[A. ALAGIRISWAMI, P. N. BHAGWATI AND P. K. GOSWAJ>U, JJ.J\n\nConstitution nf India, 1950-Art. 226-Petition dismissed in Jimine but a certificate granted under Art. 133(1) (a}-Validi'ty of certificate.\n\nC The appellant filed a writ petition before the High Court under Art. 226 of the Constitution impugning the order of the Deputy Director of Consolidation. The High Court dismissed he petition in lbnine but granted a certificate under Art. 133(1)(a) on the basis of valuation. ;\n\nOn appeal to this Court, the respondent raised a preliminary objection that the certificate granted was not valid because the judgmeilt of the Hi'gb D Court was one affirming the judgment of the Deputy Director, Consolidation.\n\nSetting aside the order of the High Court,\n\nHEID :The certificate granted by the High Court is competent. An order of a High Court under Art. 226 or 227 is an order in a civil proceeding of a High Court and so falls under Art. 133. But it cannot be said that such\n\nl~ cases a party is exercising any right of appeal conferred on him by any statute nor is the High Court exercising any power of appeal. Whatever might be the position even in respect of petitions under Arts. 226 or 227 of the Constitution where the Court goes into the merits of the question, it cannot be doubted that where it dismisses such a petition in limine it simply refuses to exercise its powers under Art. 226 or 227 and such an order cannot bi:! said to be an order passed on appeal or as affirming the decision of the Court F immediately below. Therefore. the order of the Hi$h Court in the present case is not a judgment of affirmance. [427F, 427AB]\n\nAbdul Majid v. lawahar Lal, (1904]\n\nI.L.R. 36, All. 350, Karsondas Dharamscy v. Gangab.'1ai. [1907] I.L.R. 32 Born. 108, Sunder Kaer v. Chandishwar Prasad Singh l.L.R. 30 Cal. 679 Promotho Nath Roy v. W. A. Lee, [1919] 33 C.L.J. 128, Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar A.I.R. 1942 Madi. 357.\n\nPurnendu Nath Tagore v. Kanai/al Ghoshal (1948] 2 Col. 202, Ganesh Prasad v. Mr. Makhna A.l.R. 1948 All. 375 and Oulabchand G v.~ Kudilal A.l.R. 1952 M.B. 149, referred to.\n\n(2) The order of the Deputy Director of Consolidation is not. clear and since the High Court dismissed the appellants petition in limine the reasons which Jed the High Court to dismiss are not known. Hence it is necessary that the High Court should deal with the petition before it and dispose of it by a proper order. [427 GH]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1641 of 1969.\n\nFrom the Judgment and decree dated 13-9-1967 of the High Court of Allah'.tbad in Civil Writ Petition No. 2334 of 1963.\n\nR. H. Dhebur, D. v. Desai and P. C. Kapur for the appellant.\n\nG. N. Dixit, Uma Mehta, S. Bagga and Raj Kumar Mehta, for the Respondent.\n\ns. KALAWATI v. DURGA PRASAD (Aillgiriswami, J.)\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAMI, J.-The appellants is the widow of one Goverdha, ndass. The 1st respondent is her husband's brother.\n\nGoverdhandass and the 1st respondent are the sons of one Bhojraj. The appellant claimed 11 plots in Khata No. 97 as land _in which she was entitled to be a joint tenant along with the 1st respondent. She aJso claimed certain other plots on the ground that they were acquired by B Bhojraj and therefore it was joint Hindu family property and she was entitled to inherit those shares also as a co-tenant along with 1st respondent. She .succeeded in respect of the 11 plots in Khata No. 97 but failed in respect of the other .Plots.\n\nThe matter first came up before the Consolidation Officer and thereafter on appeal before the Settlement Officer and finally before the Deputy Director, Consolidation in revision.\n\nAgainst the order of the Deputy Director, Consolidation she filed a petition before the High Court of Allahabad under Article 226. The High Court dismissed it in limine but granted a certificate under Article 133(1) (a) of the Constitution.\n\nA preliminary objection was raised on behalf of the 1st reswndent that the certificate granted was not valid because the judgment of the High Court was one affirming the judgment of the Deputy Director, Consolidation. One of the questions on which the decision of this question. depends is whether the Deputy Director, Consolidation as well as the other two officers exercising power under the U .P. Consolidation of Holdings Act, 1953 are Courts. However, in the view we take of the decision of the High Court that it is not a judgment of affirmance this question does not arise..\n\nThe High Court dismissed the writ petition in limine.\n\nIt did not go into the merits of the ca, se or decide it even within the limited scope of its powers under Article 226 or 227 of the Constitution even if not as a Court of Appeal exercising its powers under section 96 or 100 of the Code of Civil Procedure.\n\nIt simply refused to exercise its powers under those Articles of the Constitution.\n\nUnless the. Court had applied its mind to the case and after consideration affirmed it the order cannot be said to be one of affirmance.\n\nIt may be useful to consider earlier decisions in this connection.\n\nIn Abdul Majid v. Jawahir Lal (1904 ILR 36 All. 350) the question G of the st, arting point of limitation for the execution of a decree had to be decided and that question depended upon the effect of an order of the Privy Council dismissing an appeal for want of prose. cution. In that connection the Privy Council observed :\n\n\"The order dismissing the appeal for want of prosecution did not deal iudici.a, lly with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision \"appealed from.\n\nIt merely re.Co!ffiised authoritatively that the appellant '.had not complied with the c01; iditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all.\"\n\nSUPREME COURT REPORTS\n\n(1975] SUPP S.C.R.\n\nA In Karsondas Dharamsey v. Gangabai (1907 !LR 32 Born. 108) an order of the High Court refusing to admit an appeal after the period of limitation had expired was held to be not a \"decree passed on appeal by the High Court\" under s. 595 of the Civil Procedure Code a, nd it was held that there was therefore no jurisdiction to grant leave to appeal therefrom to the Privy Council under cl. (a) of that section.\n\nB Tbc meaning of the words \"Passed on appeal\" were specifically considered and it was observed :\n\n\"The meaning of the expression \"passed on appeal'\" has been settled by a line of authorities, which it is right that we should follow: see Sunder Koer v. Chandishwar Prasad Singh (ILR 30 Cal. 679) and the cases there cited. And applying that interpretation to the circumstances of the e, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court.\"\n\nThis Bombay decision was noticed in Promotho Nath Roy V; w. A.\n\nLee (1919 (33) CLJ 128). But that decision differed froni the Bomb, ay decision because in that case the appeal had been admitted D and dismissed whereas in the Bombay case the appeal was not admitted at all.\n\nIn Ramaswami Udayar v. Sevu A ru Ramaflllthan Chettlar (AIR 1942 Mad. 357) it was held by a Division Bench of the Madras High Court that where an .<J, Pplication to excnse delay, by deducting 'the time taken in other proceedings in computing the time for the application for rehearing of an appeal, was dismissed E and consequently no order was passed on the application for rehea, ring the appeal, these were not orders on appeal withiti the meaning of s. 109 (a) of the Code of Civil Procedure and hence no leave could be granted.\n\nThese decisions were followed in Purnendu Nath Tagore v. Kanai/al Ghoshal (1948 (2) Cal. 202).\n\nIn Ganesh Prasad v. Mt. Makhna (AIR 1948 All. 375) however F a, n order dismissing appeal for default on account of non-prosecution was held. -to be a decision wnich affirmed the decision of the Court below. '\n\nIn Gulabchand v. Kudilal (AIR 1952 M.B. 149) it was held that the order of the Court dismissing the Special Appeal on the ground\n\ntht no appeal lay under s. 25 of the Act was not an order which G affirmed the decision of the Court below and it WU$ observed that expression \"affirms the decision of the Court immediately below\" implies that the Court had dealt judicially with the decision of the Conrt below and upheld it and where the Court holds that it has no jurisdiction to entertain an appeal from the decision of the Court below and rejects the appeal, it cannot be held that the decision of\n\nthe Court below is affirmed by the rejection of the incompetent appeal.\n\nH The principle behind the maiority of the decision is thus to the\n\neffect~ that where an appeal is dismissed on the preliminary ground that it was not competent or for non-prosecution or for any other reason the appeal is not enterta, ined, the decision cannot be said to be a \"decision on appeal\" nor of affirmancc. It is only where tl1e appeal is heard and the judgment delivered thereafter the\n\n- i\n\n. '\"\"\n\ns. KALAWATI v. DURGA PRASAD (Alagiriswami, J.) 427\n\njudgment can be said to be a judgment of a, ffirmance. Where a A party applies to the Court to exercise its powers under Article 226 or 227 of the Constitution it cannot be said that the party is exercising any right of appeal conferred on him by any statute nor is the High Court exercising any power of appeal. Whatever might be the position even in respect of petitions under Article 226 or 227 of the Constitution where the Court goes into the merits of the question, B it cannot be doubted tha, t where it dismisses such a petition in limine it simply refuses to exercise its powers under Article 226 or 227 Such an order cannot be said to be an order passed on appeal or as affirming the decision of the Court immediately below.\n\nIn this connection it may be noticed that under s .109 of the Code of Civil Procedure appeals lie to the Supreme Court from any judgment, decree or final order of a High Court where it is passed on appeal. A proceeding under Article 226 or 227 of the Constitution is not an appeal. lt is true that the right conferred by Article 133 of the Constitution, cannot in any way be curtailed by the provisions of the Code of Civil Procedure and Article 133 does not speak of a Jmlgment, decree or finaJ order passed on appeal by the High Court. All the earlier decisions of the various Courts referred to above are based on the interpretation of ss. I 09 and 110 of the Code of Civil Procedure. An order of a High Court in a petition under Article 226 or 227 would be an order in a civil proceeding of a High Court and so fall under Article 133. Where a High Court refuses to entertain such a proceeding the sa, me considerations that were applied in the earlier cases where an appeal was not judicially considered should be held applicable also on principle.\n\nWe are therefore of opinion that an order in a petition under Article' 226 or 227 dismissed in limine is not a final order in a civil pro-- ceeding for the purpose of Article 133 (!) (a) of the Constitution and is not therefore a judgment of affirmance under Article 13-3(1) F _, (a), and therefore the certificate granted by the High Court is competent.\n\nAs regards the appeal itself we must say that we have not been able to understand the order of the Deputy Director of Consolidation which was sought to be quashed by means of the writ petition. We were invited by the respondent to look into the orders of the Coiis- G olidation Officer and the Settlement Officer in order to understand the order of the Deputy Director of Consolidation.\n\nAs the order sought to be qnashed was that of the Deputy Director of Consolidation we do not feel called upon to do so. We are therefore in the dark a, s to the reasons which might have led the High Court to dismiss the appellant's petition -in limine.\n\nWe consider it necessary and proper therefore to set aside the order of the High H Court and direct that the petition be dealt with by it and disposed of by a proper order. The High Court will hear the inatter afresh and dispose it of by a reasoned order.\n\nThere will be no order as to costs.\n\nP. B. R.\n\nCase remanded.", "total_entities": 35, "entities": [{"text": "S. KALAWATI", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "S. KALAWATI", "offset_not_found": false}}, {"text": "DURGA PRASAD & ANR", "label": "RESPONDENT", "start_char": 13, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "DURGA PRASAD & ANR", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 48, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI*", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 65, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "P.N. 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{"document_id": "1975_1_428_438_EN", "year": 1975, "text": "JAILA SINGH & ANR.\n\nSTATE OF RAJASTHAN AND ORS.\n\nMay 2, 1975\n\nB (A. ALAGIRISWAMI, p. N. BHAGWATI AND P. K. GOSWAMI JJ.J\n\nRaiasthan Colonisation (Rajasthan Cuna{ Proiect Pre-1955 Ten1porary Temonrs <Tovernnient Lo.nd Allot1nent) Conditions, 1971, Condition No. 3, and Raja.<; t/1an Colonisation (Allotment of Governn1e11t Land to Post-1955 Te1nporary Cultivation Lease Holders and other landless persons in the Rajasthan G'anal Project Area}_ Rules, 1971, Rules 2(1)(xiii) and 3(2)-Pennanent al!ot111cnt of land to tenants-Pre-1955 and post-1955 tenants, if forn1 different classcs-Sectior..• 15 and 15-A of Rajasthan Tenancy Act, 1955, if pro1, ide any basis for classifica1iv11.\n\nRajasthan Colonisation Act, 1954, Sections 7 and 28-Scope of.\n\nThe Rajasthan Colonisation (Bhakra Project Governn1ent Land Allotment and Sale) llulcs, 1955 made under the provisions of the Rajasthan Colonisation Act, 1954, came into effect on 25th December, 1955.\n\nUnder these Rules th<.: difference 1...-etween pre-1947 and post-1947 tenants is negligible.\n\nUnder he Raja<; than Colonisation (Gang Can:tl Lands Pcmanent Allotment and Sales} H.ules, 1956, the scale of allotment is uniform without any discri111ination between various classes of persons to ¥.ho1n lanU may be allotted.\n\nUnder th~ Rajasthan Colonisation (Rajasthan Can<-ll Project Government Land Allot.ral:n!\n\nand Sale) Rules, 1967 all post-1955 temporary cultivation leases in the Colony Area were terminated nnd all the lands covered by such leases reverted tu the Government.\n\nJaila Singh, the appellant in Civil Appeal No. 1704 of 1974 was alloUeJ 50 bighas of 'uncommand land' in the yeal's l 956-57 and 1957-58 in the Ganganagar District of the Rajasthan State. fhe area in \\Vhich the hind is situated was declared a Colonv .l\\rea of the Rajasthan Canal Project under the Rajasthan Colonisation Act in 1960. Jn 1967 the Rajas.than Canal Colonisation (Rajastha11 Canal Project Government Land J\\llotment and Sale) Rules. 1967 \\Vere prornulgat<.Ai and applications were invited for allotn1cnt of land under those rules.\n\nJaUa Singh's application for allotment was disposed of on 27-12-1969 by allotting:\n\n14 bighas and 14 biswas of land on permanent basis.\n\nJn State v. Ranu!han.\n\nA.i.R. 1973 Raj. 71, the latter part of Rule 16 and Rule 19(a) (iii) read with Hulc 7(x) and (xi) of the 1967 Rules \\Vere struck down.\n\nThey were struck do\\.vn on the ground that both the Rhakra Canal Project Rules and the Rnjasthti-n Canal Rules framed under the Act. had treated the unit of family differently and cannot therefore be justified. Thereafter two sets of rules called respectively F.aja.<; than Colonisation (Rajasth;:n Canal Project Pre-1955 Temporary Tenants (lovernmcnt Land Allotment) Conditions, 1971 and the Rajasthan Colonisation\n\n(Allotment of Governn1cnt Land to Post-1955 Temporary Cultivation Leas~ Holders arid Other Landless Persons in the- Rajathan Canal Project Area) F, ules. 1971 were promulgated.\n\nApplications were again invited for a1lotment cf land under the Po\"t-1955 Rules and Jaila Singh \\Vas allotted another 10 bighas of land. The rest of the land originally allotted to him reverted to the State.\n\nHe filed a v,.Tit petition before the Rajasthan High Court cha11cnging the Pvst-1955 Rules as violative of Article 14 of the Constitution.\n\nSahi Ram, the .husband of the appel1ant in Civil Appeal No. 1705 of 1974, bad been allotted 24! bighas of land for ten1porary cultivation in Rajasthan Canal Area in Ganganagar District.\n\nHe had also been allotted 12! bighas 'command land' in the rear 1952 on a permanent basis and 6 bighas and 12 biswas of 'command land\" and 4 bighas and 11 biswas of 'uncommand land' for permanent cultivation.\n\nThese lands\n\n1vcrc. included in the Colony Area of the Rajasthan Canal Project in 1960.\n\n) ,\n\nJAJLA SINGH v. RAJASTUAN (Alagiriswami, !.)\n\nAfter the po>t-1955 Rule come into force the 24! bighao of land was ordered to be resumed on the ground that Sahl Ram was not a landless person. In the writ petition filed by the appellant, the order of resumption was challenged as discriminatory. .\n\nIn both the writ pertitions the contention on behalf of the State of Rajaathan was that, owing to the insertion of s. 15A in the Rajasthan Tenancy Act, 1955\n\nKhatedari rights could not accrue to the tenants under s. 15 ( 1) of the said Acl and 'the possession of such tenants was given protection who were holding\n\n'ince lS.!0-55 and thereafter upto the commencement of the Pre-1955 Condi tious by making permanent allotment under the Pre-1955 conditions\".\n\nThe Single Judge of the High Court accepted this contention and upheld their validity of the Prel955. Conditions as well as the Post1955 Rules. He took the view\n\nt11a1. the question of discrimination can arise only in respect of persons who are similarly situated, that the pre-1955 tenants cannot be said to stand on the same footing as the post-1955 tenants in asmuch as the two classes of !en(tnts came into temporary cultivation at different periOds of time and cannot be said to be similarly situated.\n\nOn appeal, the Division Bench of the High Court dismissed the appeals even at the admission stage.\n\nThese appeals have been preferred by special leave granted by this Court.\n\nIt was contended for the appellants that discrimination between the pre-1955 <ind postl955; tenants is based on the fact that (1) In the case of the former, persons having more than 25 bigbas could keep all the lands they had up to the ceiling limit and had to pay only for the land in excess of 25 bighas ; (2) E<icn among them persons having less than 25 bighas, whether below 15 er\n\nabove 15 bighag could get land to enable them to have 25 bighas and they need pay only for the excess over what they had: (3) Post-1955 tenants\n\ncould not get anything if they had over 15 bighas and hey had to pay for the land allotted to them to make up 25 bigha<;.\n\nAllowing the appeals, HEW: There is no nexus bet\\veen the pre-1955 Conditions <ind post-1955 Rules and the Rajasthan Tenancy Act which came into force on 15-10-1955.\n\nDoth sets of ]eases had been cancelled by the relevant pre-1955 Condition and post-1955 Rules and there is no dispute that the pre-1955·1eascs cannot be\n\nc<1:11celled while post-1955 leases could be cancelled.\n\nThe Rajasthan Tenancy\n\nAct is not concerned with that question.\n\nProviso to section 15 of that Act specifically provides that no Khatedari rights shall accn1e under that section to F any tenant, to whom land is or has been Jet out temporarily in Gang Canal, Bhakra, Chambal or J awai project area, or any other area notified in that behalf by the State Government.\n\nAdmittedly the Rajasthan Canal area has been included within the scope of this proviso by a notification.\n\nTo make matters more clear section ISA also provides that the land in the Rajastban Canal area leased out on any terms Vlhatsoever shall be deemed to have been let out tempoarily within the meaning of the poviso and no khatedari rights shcill accrue or shall be deemed ever to have accrued in any such land leased out. This provision thus applies to both pre-1955 as well as post-195.5i leases.\n\nG Beth these leases stand on the same footing and therefore do not forn1 different c1asses.\n\nThe reference to sections 15 and 15A of the Rajasthan Tenancy Act is wholly irrelevant.\n\nNor can it be said that the lengthy occupation of the l01nds provides any proper criterion for the distinction between pre-1955 a~~ nost-1955 tenants. There is nothing to sho\\V how long be-fo're 15th October 195'\n\nPre-1955 tenants were given temporary le~<; es ad. in the absence of such n1ateria1, it is itnpossible to see how any drfferentiahon can be made between prc-1955 and post-1955 tenants in the matter of pem.ane!lt allotment of lnr!.\n\nEven in 1967 when the 1967 Rules were made no d1shntron was sought to be H n1ade between pre-1955 and post-195? tenants. By that ume many_ of oost-195.~ tenants would have been in possession for about 12 Y:eur~ and 1n 1971 te)\n\nwoulcl have been in possession for about 16 years.. It 1s ~1fficult to appreciate h w it should make anv difference from the point of view of aIIotment of Jnd whether a tenant has been in occupation fc:r 16 years or 18 or 20\n\n\"\\'Ca,; and why differentiation should be. made with reference. to .the date V!hen the Rajasthan Tenancy Act came into force.\n\nThe class1ficat1011 mu\", t\n\nA have a nexu; with the object sought to be achieved.\n\nThere is no such nexus in this case.\n\nAs a result Condition No. 3 of the Pre-1955 Conditions and the definition of landless person as contained in Rule 2(1) (xiii) as well as Rule 3(2) of the Pos.t-1955 Rulesarc void as they are discriminatory under Art. 14 of the Constitution and they are struck down. [435 D-H, 436A-C, 437F, 438E]\n\nObservation : Rajasthan Colonisation Act, 1954, practically provides no gu:dance \\Vith regard to the principles to be applied in the matter of allotrr1ent B of land.\n\n[ 432F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1704-1705 of 1974.\n\nAppeal by special leave from the judgment and 1-8-1974 of the High Court of Rajasthan in D. B.\n\nC Appeal No. 415 and 237 of 1974.\n\norder dated Civil Special\n\nG. L. Sanghi S. R. Srivastava, Manmohan Mridul and Badri Dass Sharma for the appellants (in C. As. Nos. 1704-1705/74).\n\nNiren De, Attorney General of India, S. T. Desai, G. Kashliwal ,\n\nD and S. M. '/ain, for the respondents (in C. As. Nos. 1704-1705/74).\n\nJ. B. Badachanji and K. J. John, for the intervener (In C. As. Nos. 1704-1705/74).\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAMI, J. These appeals raise the question of the E validity of certain rules made under the Rajasthan Colonisation Act,\n\n1954. The facts necessary for the decision of this case are as follows.\n\nJaila Singh, the appellant in Civil Appea.l No. 1704 of 1974 was allotted 50 bighas of 'uncommand lane;!' in the years 1956-57 and 1957- 58 in the Ganganagar District of the Rajasthan State. The are.a, in which F the land is situate was declared a Colony Area of the Rajasthan Canal Project under the Act in 1960. In 1967 the Ra.iasthan Colonisation (Rajasthan Canal Project' Government Land Allotment and Sale) Rules, 1967 were promulgated and applications were invited for allotment of land under those rules. Jaila Singh's applica.tion for allotment was disposed of on 27-12-1969 by allotting 14 bighas and 14 biswas of land on permanent basis. These 1967 Rules were the suh- G ject matter of certain writ petitions before the Ra.iathan High Court which ended with the decision of that Court in State v. Ramdhan (AIR 1973 Raj 71) striking down certain of those Rules. Thereafter two sets of rnlcs called respectively Rajasthan Colonisation (Rajastha, n Canal ProjeCt Pre-1955 Temporary Tenants Government Land Allotment) Conditions, 1971 and the Rajasthan Colonisation (Allotment of Government Land to Post-1955 Tempor.a, ry Cultivation Lease Holders H and Other Landless Persons in the Rajasthan Canal Project Arca) Rules, 1971 were promulgated. Applications were again invited for allotment of land under the Post-1955 Rules and Ja.ila Singh was allotted another 10 bighas of land. The rest of the land originally allotted to him reverted to the State. He filed a writ petition before the Rajasthan High Court challenging the Post-1955 Rules as violative nf Article 14 of the Constitution. He prayed that R, a, jasthan Colonisation Act. 1954 may be declared to be illegal or in the alternative A the Post-1955 Rules may be declared to be violative of Article 14 of ' the constitution and for an appropriate order in respect of the lands allotted to him.\n\nSahi Ram, the husband of the appellant in Civil Appeal No. 1705 of 1974, had been allotted 24 1/2 bighas of la, nd for temporary cultivation in Rajas than Canal Area in Ganganagar. District. He had also been , a, Ilotted 12 1/2 bighas of 'command land' in tile year 1952 on a permanent basis and 6 bighas and 12 oiswas of 'command land' and 4 bighas and 11 biswas of uncommand land' for permanent cultivation.\n\nThese lands were included in the Colony Area the Rajasthan Canal Project in 1960. After the post-1955 Rules came into force the 24t bighas of land was ordered to be resumed on the ground that Sahi Rum was not a landless person. In the writ petition filed by the appellant the contention~ and prayers were the same as in Jaila Singh's case. We shall deal with them at the appropriate places in so far as they relate to matters raised in the appeal.\n\nIn both the writ petitions the contention on behalf of the State of R, ajasthan was that owing to the insertion of section 15A in the Rajasthan Tenency Act, 1955 Khatedari rights could not accure to the tenants under section 15(1) of the said Act and 'the possession of such tenants was given protection who were holding since 15-10-55 and thereafter upto the commencement of the Pre-1955 Conditions by making permanent allotment under the Pre-1955 Conditions'. The various impugned rules were contended not to be discriminatory.\n\nJustice Gupta of the Rajasthan High Co}!It who heard the two writ petitions filed by Jaila Singh and Dhapi Bai, in a batch of 340 writ petitions, upheld the validity of the Pre-1955 Conditions as well\n\nas the Post-1955 Rules. He took the view that the question of discrimination can arise only in respect of persons who are similarly F situated, that the prc-1955 tenants cannot be said to stand on the same ., footing as the post-1955 tenants inasmuch as the two classes of tenants came into temporary cultivation at ditferent periods of time and cannot be said to be similarly situated. The fact th.flt the pre-1955 tenants had been continuously in possession for a longer period was held to > make them a separate class from the temporary cultivators who came into possession after October 15, 1955. The contention of the Rajas- G than State on the basis of section !SA of the Rajasthan Tenancy Act was a)so accepted. On appeal against the decision of Justice Gupta a Division Bench of the Rajasthan High Court dismissed the appeals even at the admission stage.\n\nBefore we proceed to consider the various contentions it is necessary to set out certain important provisions of the Act and the Rules.\n\nThe Rajastha.n Colonisation Act, 1954 came into force on 17th December, 1954. It defined 'tenant' as meaning any person holding land in a colony and including predecessors and successors-in,-interest and transferees. 'Colony' was defined as meaning any are, a to which the Act shall be applied. Section 7 of the Act reads :\n\n\"7. Issue of statement of conditions of tenancy.-\n\n( 1) The State Government may grant land in colony to a, ny person on such conditions as may be prescribed.\n\n(2) The State Government may issue a statement or statements of the conditions on .which it is willing to grant land in a colony to ten.a, nts.\n\n(3) Where such statements of conditions have been issued, the ~Collector may, subject to the control of the State Government, allot land to any person, to be held subject to such conditions contained in the statement issued under sub-section (2) of this section as the Collector may, by written order declare to be applicable to the case.\n\n( 4) No person shall be deemed to be a tenant or to have any. right or title in the land allotted to him until such a written order has been passed and he hl\\S taken possession of the land with the permission of the Collector, and after possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto.\"\n\nSection 28 reads :\n\n\"28. Power to make rnles.-The Stale Government may, by notificatiOn in the Official Gazette make rules grnera)ly for carrying into effect the provisions and purposes of this Act and in particular for all matters which are prescribed thereunder.\"\n\nIt would be noticed that there is practically no guidance provided in the Act with regard to the principles to be applied in the matter of allotment of land.\n\nUnder the provisions of that Act the Rajasthan Colonisation (Bhakra Project Government Land Allotment & Sale) Rules, 1955 were made and came into effect on 25th December, 1955.\n\nThe G extent of land which could be allotted to those cultivating Government lands since before December 31, 1947 was 50 bighas if the Joint family consists of adult male members not exceeding five and 15 bighas of additional area per additional member if the number of members is in excess of five.\n\nIn the case of those cultivating lands since after 31st December 1947 25 bighas could be allotted for a joint family consisting of three adult male members and 15 bighas H for every adult male members in excess of three. Thus the difference\n\nbetwen pre-1947 and post-1947 tenants is negligible.\n\nUnder the Rajasthan Colonisation (Gang Canal Lands Permanent Allotment and Sale) Rules, 1956 the scale of allotment is uniform without any discrimination between various classes of persons to whom land may be allotted.\n\nUnder the Rajasthan Colonisation (Rajasthan Canal Project Government Land Allotment and Sale) Rnles, 1967 all post-1955 te&· porary cultivation leases in the Colony Area were terminated and all the lands covered 'by such leases reverted to the Government.\n\nRule 16 reads :\n\n\"16. A joint family shall, for the purposes of existing holding and of allotment of land under these Rules, be deemed to be one person and dealt with accordingly.\n\nNo separation or partition affected after the 15th October,\n\n1955 will be ta!cen into consideration.\"\n\n Under Rule 19 Bhakra landless persons were entitled to 15 bighas in each case ; so also landless tenants. Tenure tenants who held land less than 15 bighas in their khatas and the whole or part thereof was with a sub-tenant, not liable to ejectment, were entitled to allotment of so much of Government land as would render their khatas equal to 15 bighas.\n\nHere again there was no discrimination in the matter of allotment of land among the various classes of persons to whom land may be allotted.\n\nAfter Rules 16 and 19 read with Rule 7 (x) and (xi) were struck down bv the Rajasthan High Court, these Rules were repealed and the Pre-1955 Conditions and Post-1955 Rules were promulgated.\n\nThe Rajasthan Colonisation (Rajasthan Canal Project Pre-1955 Temporary Tenants Government Land Allotment) Conditions, 1971 came into effect on 3-2-1971.\n\nA 'prc-1955 temporary tenant' was defined as a person who is resident of Rajasthan since before the 1st day of April, 1955 and who has been holding and been in pos session of temporary cultivation land continuously since before the 15th day of October, 1955, upto the date of commencement of these Conditions (portion not necossary for the purposes of !his case omitted). All temporary leases of Government lands of pre-1955 tempora, ry tenants were cancelled.\n\nA temporary tenant holding more than 25 bighas of command temporary cultivation land could be allotted up to the ceiling limit, the ceiling limit being 50 bighas.\n\nA temporary tenant holding less than 25 bighas may be allotted the land in his . possession as well as further extent of land making the -total upto 25 bighas.\n\nIn the case of persons having more that 25 bigbas no price was chargeable for allotment upto 25 bighas.\n\nBut persons having less than 25 bighas had to pay the price for lands allotted to them to make up 25 bighas, that is, land in excess of what they already had.\n\nThe effect of these provisions was, to take a concerete example, that if a man had 30 bighas of land the whole of it would be allotted to him. If he had 60 bighas of land 10 bighas will be taken away.\n\nHe will have to pay the value of the land in excess of 25 bighas.\n\nWhere a person had less than 25 bighas-whether it is 14 or 16 bighas--he will be given another 11 or 9 bighas as the case may be and he need not make any payment for the land he already had but need pay only for the land newly allotted.\n\nThus a person holding lands in excess of 25 bighas was at a distinct advantage in that he could keep the land in excess of 25 bighas and upto 50 bighas by paying the value only for the excess, compared to the man who had\n\nA less than 25 bighas who could be given land upto 25 bighas.\n\nThe discrimination between the two classes is obvious ana no justification has been put forward nor can be put forward for this discrimi- ,. nation.\n\nThe Rajasthan Colonisation (Allotment of Government Land to ll Post-1955 Temporary Cultivation Leases Holders and Other Landless Persons in the Rajasthan Canal Project Area) Rules, 1971, which came into effect on 4-5-1971 described a Jandlc'5 person in r. 2(1)\n\n(xiii) as follows :\n\n\" 'Landless Person• means a person who is resident of Rajasthan since before the 1st day of April, 1955 and is by profession a bona fide agriculturist or bona fide agricLltural labourer and whose primary source of income is agriculture.\n\nProvided that such persou neither holds any tenure Janel anywhere in excess of 15 bighas nor is he a sub-tenant of any such land (in excess of 15 bighas) from which he is not liable to ejcctment under the provisions of the Rajasthan Tenancy ACt, 1955 (Rajasthan Act 3 of 1955) or under any other law for the time being in force in the ar.:a in which the land is situated; nor he is entitled for permanent allotment of 1 5 bighas or more land anywhere under a;; y other rules, conditions or law.\"\n\nA landless person coming undr these rules could be allotted up to 25 bighas provided that if such person holds or is a sub-tcaant of any land anywhere, he will be allotted only so much Government F land as together with his existing holding does not exceed 25 bigba:;.\n\nThere is a proviso that such land shall be allotted to him only if such land is available adjacent to his existing holding or in the same village.\n\nThe result of this rule read with the definition of landless person is that if he holds land anywhere in excess of 15 bighas he will not get any further allotment.\n\nIn other words if he had 14 bighas of land he may be allotted 11 bighas whereas if he has rot G 16 bighas of land he will not be allotted any further land.\n\nThe di, .. crimination against him as against the pre-1955 tenant who had Jess than 25 bighas is apparent.\n\nThe latter will get 9 bighas even if he had already 16 bighas.\n\nThe word 'anywhere in the definition of the term 'landless person' as well as in the rule relating to eligibility for allotment has been the subject matter of some controversy but it is not necessary to resolve it for the purpose of these H cases.\n\nThe contrast between the Pre-1955 Conditions and the Post- 1955 Rules is thus apparent.\n\nThe only justification put forward on behalf of the Government before the High Court was that section 15A of the Rajasthan Tenancy Act. 1955 made a difference and the learned Single Judge of the Ra.iasthan High Court held that the length of the occupation of the lands by the pre-1955 and post-1955 tenants provided a basis for classification.\n\n' -.\n\nBefore us the only questions argued were regarding the discrimi- A nation between the prc-1955 anc; post-1955 tenants based on the\n\n' ---\n\nfact that-\n\n1. In the case of the former, persons havmg more than 25 bighas could keep all the lands they had up to the ceiling limit and had to pay only for the land in excess of 25 bighas.\n\n2. Even among them .persons having less than 25 bighas, whether below 15 or above 15 bighas could get land to enable them to have 25 bighas and they need pay only for l11e excess over what they bad.\n\n3. Post-1955 tenants could not get anything if they had over 15 bighas and they had to pay for the land allotted to them to make up 25 bighas.\n\nThese contentions are so substantial and the discrimination so striking and the justification aHempted so feeble that we have to hesitation in accepting them.\n\nWe have already referred to some of D them.\n\nWe are unable to see the nexus between the pre-1955 Conditions and post-1955 Rules and the Rajasthan Tenancy Act which came into force on 15-10-1955. In these cases we are concerned with the validity of the mies relating to the allotment of Government land which had been given on temporary leases to various persons whether before 1955 or after 1955.\n\nBoth sets of leases had been cancelled by the relevant pre-1955 Condition and post-1955 Rule and there is no dispute that the pre-1955 leases cannot be cancelled while post- 1955 leases could be cancelled.\n\nThe Rajasthan Tenancy Act is not concerned with that question.\n\nProviso to section 15 of that Act specifically provides that no Khatedari rights shal! accrue under that section to any tenant, to whom land is . or bas been let out temporarily in Gang Canal, Bhakra, Chambal or Jawai project area, ot any other area notified in that behalf by the State Government.\n\nAdmittedly the Rajasthan Canal area has been included within the scope ot. this proviso by a notification.\n\nTo make matters more clear section 15A also provides that the land in the Rajasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso earlier mentioned and no kbatedari rights shall accrue or shall be deemed ever to have accrued in any snch land leased out as aforesaid.\n\nThis proviion thus applies to both pre-1955 as well as post-1955 leases. Both these leases stand on the same footing and therefore do not form different classes.\n\nThe reference .to sections 15 and !SA of the Rajasthan Tenancy Act in deciding the questions that arise in these cases is therefore wholly irrelevant.\n\nNor are we satisfied that the length of occupation of the lands provides any proper criterion for the distinction between pre-1955 and post-1955 tenants.\n\nThere is nothing to show\n\nA how long before 15th October, 1955 pre-1955 tenants were glvcn temporary leases and in the absence of such material, it is impossible to see how any differentiation can be made between pre-1955 and post-1955 tenants in the matter of permanent allotment of land.\n\nEven in 1967 when the 1967 Rules were made no distinction was sought to be made between pre-1955 and post-1955 tenants.\n\nBy B that time many of post-1955 tenants would have been in possession for about 12 years and in 1971 they would have been in possession for about 16 years.\n\nIt is difficult to appreciate how it should make any difference from the point of view of allotment of lctnd, whether a tenant has been in occupation for 16 years or 18 or 20 years and why differentiation should be made with reference to the date when the Rajasthan Tenancy Act came into force.\n\nThe 1967 Rules, no C doubt, provide for cancellation of all post-1955 temporary cultivation leases but in actual effect it made no difference.\n\nUnder those Rules persons eligible for allotment were landless tenants. Landless tenant' wa' ddined as 'a bona fide agriculturist who is a resident of Rajasthan since before l st April, 1955 and who cultivates or can reasonably be expected to cultivate land personally but who docs not D hold any land in his own name or in the name of any member of his joint family and who is not a sub-'tenant of any land, owner or land .holder holding tenure khatas under proprietary, mauroosec or khatedari rights and is not liable to ejectment under the provisions of the Rajasthan Tenancy Act, 1955 or under any other law for the time being in force in the area in which the land is situate or who E holds only a fragment or land measuring 15 bighas'.\n\nNo distinction was made between pre-1955 and post-1955 tenants in the matter of allotment.\n\nProvided an agriculturist had less than 15 bighas he was entitled to allotment of land.\n\nThe allotment was also to an extent sufficient to make up 25 bighas of 'command land'. Herc again no distinction was made between post-1955 and pre-1955.\n\nF tenants.\n\nNor was there any difference in the sale price to be paid h,· the different classes of allottees.\n\nIn State v. Ramdhan (supra) only the latter part of Ruk 16 and Rule 19 (a) (iii) read with Rule 7 (x) and (xi) were struck down.\n\nRule 7 (x) reserved land for allotment to landless tenants belongin~ , to Scheduled Castes and Scheduled Tribes upto l lakh acres_ to be allotted at the rate of 15 bighas per family and Rule 7 (xi) for G other landless tenants upto 50,000 acres to be allotted at the rate of\n\n15 bighas per family. They were struck down only on the ground that both the Bhakra Canal Project Rules and the Rajasthan Canal Rules had been framed under the Rajasthan Colonisation Act, 1954 but they treated the unit of family differently and cannot therefore be justified.\n\nBy the same reasoning no distinction can be made between pre-1955 and post-1955 tenants by R)lles made under the same Act.\n\nOne of the arguments attempted before us, though it was not pleaded before the Rajasthan High Court, was that in the case of the post-1955 te.nants a smaller area had to be allotted bcame of the pressure for land. We have already pointed out that the difference in the period of.occupation between the pre-1955 and post-1955 tenai, ts\n\ncould not be of such an extent as to justify allotment of larger extent of '°\n\n' '\n\nJAJI.A SINGH v. 8AJASTHAN (Alagiriswami, J.)\n\nland to the pre-1955 tenants than to the post-1955 tenants nor for the discrimination even among the pre-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas. If the Rajasthan Government wanted to act fairly by all classes of residents of Rajasthan they could very well have omitted portions in the 1967 Rules found objectionable by the Ra.iasthan High Court and therefore struck down and there would have been nothing more to say.\n\nThe striking down of Rules 16 and 19 of the 1967 Rules did not necessitate the promulgation of two wholly new sets of rules. In that case only 15 bighas of land would have been available to each allottee and there would have been no discrimination between one class of persons and another. There would also have been greater extent of land availabh: for allotment to a larger number of persons at the rate of 15 highas each. One of the justifications pleaded on behalf of the State of Rajasthan for the definition of the landless tenants in the post-1955 Rules as persons holding less than 15 bighas of land was that 15 bighas was a viable unit. In tha:t case it is all the more reason why all allottces whether pre-1955 or post-1955 should get 15 bighas.\n\nWe are unable to see any justification for treating the pre-1955 and\n\npost-1955 tenant~ differently. What prompted the Rajasthan State D to do so in 1~71 when they did not do so in 1967 and the decision of the Rajasthan High Court in regard to the 1967 Rules did not compel them to do so is beyond our comprehension. We are not able to accept the contention that they belonged to two different classes.\n\nBy that standard any arbitrary difference could be fixed and it could be said that persons who get temporary leases before that date belonged to one class and the persons who had been allotted land after that date formed another class.\n\nWe have already shown that the Rajasthan Tenancy Act has no relevance at all to the decision of this question and therefore 15-10-1955, the date on which it came into force, has no relevance to the classification attempted by pre-1955 and post-1955 tenants.\n\nThe classification must have a nexus with the object sought to be achieved.\n\nWe can see no such nexus in this case.\n\nWe thus find that the definition of the 'landless tenants' as well as the rules for allotment in the post-1955 Rules as compared to the pre-1955 conditions are discriminatory and unjustifiable.\n\n• As regards the discrimination in the matter of payment of price\n\nbetween the pre-1955 and post-1955 tenants, it was urged on behalf G of the State of Rajasthan that this was not urged in the writ petitions of the two appellants and so cannot be gone into by this Court.\n\nThe question of price has been raised in the two writ petitions but it was on a different aspect and not on the question that the pre- 1955 tenants did not have to pay any price while post-1955 tenants had to do so.\n\nBut it has been argued before the learned Single Judge, and he has dealt with it apparently 'Yithout any <;>bjectio~ being H taken to it on the part of the State of Raiasthan.\n\nTh!S question of price is not mentioned as one of the matters which were raised before the Division Bench which heard the appeal.\n\nWe find it difficult to conceive of the appellants having given up that plea befo(e the Appellate Bench having argued it before the learned Single Judge.\n\nIt is urged on behalf of the State of Rajasthan that there may be reasons\n\nA why pre-1955 tenants are treated differently in the matter of payment of price. If there were any, they were not put forward before the learned Single Judge.\n\nBut as materials regarding it are not available before us, we propose to say nothing about it.\n\nBut we may point out that, as the rules stand, there seems to be some discrimination in the matter of price between pre-1955 and post-1955 tenants, in that pre- B 1955 tenants, who hold land exceeding 25 bighas, have to pay nothing for land upto 25 bighas, while post-1955 tenants, who hold land less than 15 bighas, have to pay price for land which may be allotted to them so as to make up 25 bighas.\n\nWe are mentioning this only so that the State may look into the matter of price and set it right to avoid any discrimination.\n\nThere seem to be no difficulty at all in C all this because none of the tenants, whether they are pre-1955 or post-1955 tenants, have any vested rights.\n\nIt is the duty of the State to treat fairly all classes of tenants in the Rajasthan Canal Area whether pre-1955 or post-1955 tenants .\n\n. No arguments were advanced regarding the validity of the Act and we think rightly so.\n\nThe arguments were confined to Condition D 3 and proviso to Condition 9 of pre-1955 Conditions and Rules 2(1)\n\n(xiii) and 3(2) of the post-1955 Rules.\n\nIn effect appellants had no objection to paying for extra land to .be allotted to them. They object only to the discrimination against them as compared to the pre-1955 tenants.\n\nE In the result we hold that Condition No. 3 of the pre-1955 Conditions and the definition of landless person as contained in Rule 2(1) (xiii) as well as Rule 3(2) of the Post-1955 Rules are void as they are discriminatory under Article 14 of the Constitution and they are struck down.\n\nIt is open to the State to frame new rules applying to both pre-1955 and post-1955 tenants without any discrimination between them.\n\nF The appeals are allowed to the extent indicated above.\n\nThe appellants will get their costs from the respondents, hearing fee one set. • Appeals allowed.\n\nV.M.K.\n\n\\ .", "total_entities": 38, "entities": [{"text": "JAILA SINGH & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "JAILA SINGH & ANR", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN AND ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN AND ORS", "offset_not_found": false}}, {"text": "B (A. 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{"document_id": "1975_1_439_442_EN", "year": 1975, "text": ". 1'\n\n' '\n\n, •\n\n...\n\nJOINT COMMERCIAL OFFICER, DIVISION II,\n\nMADRAS-2 ETC. v.\n\nSPENCER & CO. ETC. ETC.\n\nMay 2, 1975\n\n(V. R. KRISHNA IYER, R. S. SARKARIA AND A. C. GUPTA, JJ.J\n\nMadras General Safes Tax Act, 1959, Sections 2(q), 2(r) and 3(1)---:- an Dealer in foreign liquor and other goods-Tax paid under s. 21-A of Madras Prohibitiaft Act, 1937 by purchaser if part oj taxable turnorer of the dealer . •\n\nThe respondents-assessees are dealers in foreign liquor, among other goods.\n\nThey have been assessed to, sales tax as dealers on sales or purchases of other C goods under s. 3(1) of the Madras General.Sales Tax Act, 1959. They filed Writ Petitions in the High Court challenging certain orders (relating to. diffe rent assessment years, ranging from 1959 to 1964-65) made by the assessing authority under the Madras General Sales Tax Act, 1959 proposing to re determine the taxable turnover of the respondents by including the sale-price of foreign liquor which, it was alleged, had escaped assessment. The High Court Cirected the sales tax authorities not to include in the. assessable turnover the tax paid by the respondents under s. 21-A of the Madras Prohibition D Act, 193i. These appeals have been filed on the basis of the certificate of fitness granted by the High Court, ·\n\nIt was contended for the appellants that the amount coilected by the assessees by way of sales tax from the purchasers were part of their total turnover and as much liab1e to be taxed under s. 3(1) of the Act.\n\nRejecting the contention and dismissing the appeals,\n\nHELD: It is clear from s. 21-A of the Madras Prohibition Act. 1937 that the sales tax which the section requires the seller of Foreign liquof to collect from the purchaser is a tax on the purchaser and not on the seIJer.\n\nJt is a tax on the price of the liquor and that tax is to be paid by the purchaser. Section 21-A makes the seller a collector of tax for the Government, and the amount collected by him as tax under this section cannot therefore be a part of bis turnover. Under the Madras General Sales Tax Act, 1959 tb.e dealer has a statutory duty to collect the sales taxpayable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, the said amount does not cease to be the price for the goods altho\"Qgh \"the price is expressed as X -plus purchase tax\". Bnt the amounts collected by the. assessees concerned in these appeals unde4' a statutory obligation cannot be a part of their taxable turnover under the Act. [442A-D] .\n\nM/s. George Oakes (P) Ltd., v. State of Madras, [1962] 2 S.C.R. 57Q, State of Kera/a v. Ramaswamy Iyer and Sons, [1966] Suppl. S.C.R. 582 and Delhi Cloth and General Mills Ltd. v. Commissioner of Sales Tax, Indore, [19711 Suppl. S.C.R. 945, held not applicable.\n\nPaprica Ltd. and Anr. v. Board of Trade, [1944] 1 All. E.R. 372, referred to.\n\nCML APPELLATE JURISDICTION : Civil Appeals Nos. 2005 to 2016 H of 1970.\n\nFrom the Judgment and Order dated the 10th April, 1969 of the Madras High Court in W.Ps. Nos. 2787 to 2790 of 1966 and 2988 to 2991 of 1966 and T.C. Nos. 102, 104 & 195 of 1967.\n\n!OSC/75-29\n\nA S. Govind Swaminathan, K. Venkataswami. N. S. Sivam, A. V.\n\nRangam and A. Subhashini, for the appellants.\n\nT. A. Ramachandran, for the respondents (In C.As. Nos. 2005- 2008 & 2013-2016/70).\n\nVineet Kumar, for respondent No. 1 (Jn C.A. Nos. 2009-2012/ 70).\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J.-These twelve appeals arise out of a common judgment of •the Madras High Court disposing of the writ petitions filed by the respondents in which they challenged certain orders of the assessing C authority under the Madras General Sales Tax Act, 1959 proposing to redetermine the taxable turnover of the respondents by including the sale-price of foreign liquor which, it was alleged, had escaped assessment.\n\nThe High Court directed the sales tax authorities not to include in the assessable turnover the tax paid by the respondents under sec. 21-A of the Madras Prohibition Act, 1937.\n\nIn these appeals, D brought on certificate .of fitness, the correctness of the High Court's decision is questioned by the sales tax authorities. The appeals have three different assessees as respondents and relate to different assessment years conceniing each assessee, ranging from 1959-60 to 1964- 65.\n\nThe assessees are dealers in foreign liquor, among other goods.\n\nThey have been assessed to sales tax as dealers on sales or purchases of other goods under sec. 3(1) of the Madras General Sales Tax Act,\n\n1959. Sec. 3(1) is the charging section providing generally that a dealer whose total turnover for a year is not less than the specified amount, shall pay a tax for each year at the specified rate. 'Turnover' is defined in sec. 2(r) ofl the Act. The relevant part of the definition is as follows :\n\n\" 'turnover' means the aggregate amount for which goods are bought or sold, or supplied or distributed, by a dealer, either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration, ......... \"\n\nG 'Total turnover' is defined in sec. 2(q) of the Act as \"the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax\".\n\nThe question is whether the 'sales tax' collected by these assessees under sec. 21-A of the Madras Prohibition Act, 1937 can be treated as part of their total turnover. Sec. 21-A, so far as it is relevant for the present purpose, is in these terms : H\n\n\"Every person or institution which sells foreign liquor- ( a) x x x (b) x x x shall collect from the purchaser and pay over to the Government at such intervals and in such manner as may be pres-\n\nJT. COMMERCIAL OHICER v. SPENCER & co. (Gupta, J.) 441\n\ncribed, a sales tax calculated at the rate of eight anuas in\n\nA the rupee, or at such other rate as may be notified by the Government from time to time, on the price of the liquor so sold.\"\n\nCounsel for the appellants contended relying on several decisions of this Court to which we shall presently refer, that the amount collected B by the assessees by way of sales tax from the purchasers were part of their total turnover anct as such liable to be taxed under sec. 3 (1) of the Madras General Sales Tax Act, 1959. In M/s. George Oakes\n\n(P) Ltd. v. State of Madras,(') this Court considered the question whether inclusion of the amounts collected by the appellants in that case as sales tax under the Madras General Sales Tax Act, 1939 wa~ valid. The expression 'turnover' in the 1939 Act meant, as it does in the 1959 Act, aggregate amount for which goods are bought or sold, whether for cash or for deferred payment or other valuable consideration. This Court observed :\n\n\" ........ when a sale attracts purchase tax and the tax is passed on to the consumer, what the buyer has to D pay for the goods includes the tax as well and .the aggregate amount so paid would fall within the definition of turnover ......... so far as the purchaser is concerned, he pays for the goods what the seller demands, viz., price even though it may include tax.\n\nThat is the whole consideration for the sale and there is no reason why the whole amount paid to E the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover.\"\n\nA similar view was taken by this Court in State of Kera/a v. Ramaswamy Iyer & Sons.( 2 ) This wa§_il case under the Travancore Cochin General Sales Tax Act, 1958. Here also the decision turned on lite, definition of 'turnover' which is similar to the definition of the term I'\n\nin the Madras General Sales Tax Act, 1959. The position was further explained in Delhi Cloth and General Mills Ltd. v. Commissioner of Sales Tax, Indore,( 3 ) which. was a case under the Madhya Pradesh General Sales Tax Act, 1958.\n\nThe relevant provisions of this Act appear to be similar to those of the Madras General Sales Tax Act,\n\n1959. Stating that the liability to pay tax under the Act is that of G the dealer, Hegde J. speaking for the Court said that the Act did not confer \"any statutory power on the dealer to collect sales tax as such from any class of buyers. . . . Unless the price of an article is con. trolled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer_ to include in the price the tax payable by him to the Government. If he does so, he cannot be said to be collecting the tax payable by him H from his buyers. .The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for\n\n\nA saying that the dealer is entitled to collect the tax payable by him fronr his buyer or seller.\n\nWhatever collection that may be made by the dealer from his customers same can only be considered as valuable consideration for the goods sold\".\n\nIt is clear from sec. 21-A of the Madras Prohibition Act, 1937 B that the sales tax which the section requires the seller of foreign liquor to collect from the purchaser is a tax on the purchaser and not on the seller.\n\nThis is what makes the authorities on which counsel for the appellants relied inapplicable to the cases before us. Under sec. 21-A the tax payable is on the price of the liquor and that tax is to be paid by the purchaser, the sellr is required to collect the tax from fhe purchaser which he has to pay over to the Government.\n\nSec.\n\nC 21-A makes the seller a collector of tax for the Government, and the amount collected by him as tax under this section cannot therefore be a part of his turnover.\n\nUnder the Madras General Sales Tax Act, 1959 the dealer has no statutory duty to collect the sales tax payable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, D the said amount does not cease to be the price for the goods although\n\n\"the price is expressed as X plus purchase tax\".(1 ) But the amounts collected by the asscssees concerned in these appeals under a statntory obligation cannot be a part of their taxable turnover under the Madras General Sales Tax Act, 1959.\n\nThe appeals are dismissed with costs : one hearing fee.\n\nE Appeals dismissed.\n\nV.M.K.\n\n('~Ltd. and Anr. v. Board of Trade, [194411 All. E.R. 372.", "total_entities": 38, "entities": [{"text": "JOINT COMMERCIAL OFFICER, DIVISION II,\n\nMADRAS-2 ETC", "label": "PETITIONER", "start_char": 21, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "JOINT COMMERCIAL OFFICER, DIVISION II, MADRAS-2 ETC", "offset_not_found": false}}, {"text": "SPENCER & CO. ETC. ETC", "label": "RESPONDENT", "start_char": 79, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "SPENCER & CO. ETC. ETC", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 118, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 138, "end_char": 152, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "A. C. 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{"document_id": "1975_3_1002_1010_EN", "year": 1975, "text": "TARA SINGH ETC. ETC.\n\nSTATE OF RAJASTHAN AND ORS.\n\nMarch 19, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KRISHNA IYER, JJ.]\n\n.. Rajasthan Service Rules, r. 244 (2 )-Scope of-Compulsory retireme/lt of Government Servants-if violates fundamental rights-De/egatidn of power to collectors, if excessive.\n\nAll the petitioners were compulsorily retired from Government service under r. 244(2) of the Rajasthan Service Rules. In all the cases the orders stated that compulsory retirement was being done in public interest. In petitions under art. 32 of the Constitution the petitioners contended (i) that compulsorv retirement under r. 244(2), which does not prescribe the minimum age of compulsory retirement is not only removal within the meaning of art. 311 but is also unguided discretionary and discriminatory power and (ii) that permanence invol?es right to continue in service till one attains the age of superannuatien.\n\nDismissing the petitions.\n\nHELD : (1) The right to be in public employment is a right to hold it -according to rules. The right to hold is defensible according tO' ules. The rules speak of compulsory retirement. There is guidance in the rules as to when such compulsory retirement is made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any char.ge& of inefficiency or incompetency the Government passes orders of compulsory retirement.\n\nThe Government servant in such cases does not lose the benefits which a government servant has already earned. These orders of compulsory retirement are made in public interest. This is a safety valve of making such orders so .that no arbitrarines or bad faith creeps in. [1009 E-Gl\n\nIn appendix 9 to Rajasthan Service Rules, Vol. II the power to retire a Government servant after completion of 25 years of service in the case of ministerial service is onfemd on the appointing authorities.\n\nIn the present case the appointing authority is the Collector. The content of the power is not changed by any amendment of the rule. Therefore, the delegation is valid. There is no stigma in any of the impeached compulsory orders of retirement. [1009 G-HJ\n\n(2) (a) Rule 244(2) as it stands now does not specifically mention that an aider is to be passed in the public interest. 'The notes to the rule indicate that the right to pass an order of compulsory retirement is to be exercised only against the Government servant whose efficiency is impaired and against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. The notes further say that it is not the intention to use this rule as a financial weapon, that is to say, that the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds. [1007 G-1008 Al\n\n(b) The notes are promulgated with the rules in exercise of legislative power.\n\nThe notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion.\n\nThe real purpose of the notes is that wlten rules are silent the notes wil! fi!L up gaps. [1008 A-Bl\n\n(c) The notes which are appended to rules are to aid not only in applying the rules but also in interpreting the true import of the rules. [1009 A-Bl\n\nShyam Lal v. The State of U.P. [1955) 1 S.C.R. 26 and T.C. Shiracharana H Singh v. The State of Mysore, A.LR. 1965 S.C 280 referred to.\n\n(d) Although the Government cannet supersede statutory rules by a?ministrative instructions yet if the rules framed under art. 309 of the Constitullon are\n\nsilent on any particular point, the Government could fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these insu-uctions will govern the cond!ti-Ons of service. [I 009 CJ\n\nIn the present case the notes are part of the rules because they are for the guidance of the parties. They are no1 inconsistent with the rules but are intended to fill ilp gaps where the rules are silent.\n\nThe only question here is that formerly the rules said that compulsory retirement would be made in public interest but the present rule does not contain that part of the old rule. The deletion of that part of the rules did not mean that the orders of compulsory retirement were not made in public interest. The notes to the rules make explicit what is implicit in the rules. (1009 D-E]\n\nUnion :af India v. K. P. Joseph, [1973) 2 S.C.R. 752, refurred to.\n\nORIGIN.AL JURISDICTION : Writ Petitions Nos. 1253, 1353, 1448, 1898 and 270 of 1973\n\nPetitions under Article 32 of the Constitution of India.\n\nL K. Garg and S. C. Agrawal, for the Petitioners (in WP~. 1253, 1448 and 1898/73.) ·\n\nS. K. Mehta, K. R. Nagaraja and M. Qamaruddin for the Petitioners in W.Ps. Nos. 1353 and 270/73.\n\nMaya Rao, for Respondent (in W.P. No. 270/70).\n\nL. M. Singhvi, A. G. Rajasthan, in W.Ps. Nos. 1253 & 1898/73 only) and S. M. Jain for the Respondents, (in rest of W.Ps.)\n\nE The Judgment of the Court was delivered by\n\nRAY, C.J.-These writ petitions challenge the validity of orders of compulsory retirement. In writ petition No. 1253 of 1973 the petitioner was served with an order dated 30 March, 1973.\n\nThe order was as follows,:-\n\n\"Whereas Shri Tara Singh Patwari has completed 25 years of qualifying service and whereas the State Government ts satisfied that it is in public interest to dispense with farther service of the said Government servant.\n\nNow, therefore, in pursuance of the delegation made under Rule 244(2) of the Rajasthan Service Rules vide Fiance\n\nDepartment Order No. F.1(34)FD-A (Rules/62) dated 13.12.63 the undersigned hereby gives notice to the said Shri Tara Singh requiring him to retire with effect froni the date of the expiry of 3 calendar months fromthe service-of this llotice on him and further orders the compulsory retirement of Shri Tara Singh with effect from the said date.\n\nSd/- Collector,\n\nGangarragar.\"\n\nIn writ petition No. 1353 of 1973, the petitioner was served with an identical order dated 30 March, 1973.\n\nIn wtit titian No. 1448 of 1973 the petitioner was served with an order dated 28 April, 1973. The order was in terms similar tq that in writ petition No. 1253 of 1973 except that the order did not :state that \"the State Government is mtisfied that it is ia public interest to dispense with th_e service of the petitioner\". i In writ petition No. 1898 of 1973 the petitioner was served '.with an order dated 4 November, 1973 where also the order did not :state that the compulsory retirement was made by the Government on being satisfied that it was in public interest.\n\nIn writ petition No. 270 of 1973 the petitioner was served with an order dated 30 March, 1970: The order w'as similar to writ petition No. 1253 viz., that the petitioner completed 25 years of qualifying service and the retirement was in public interest.\n\nCounsel on behalf of the petitioners contends that the orders are bad because they vio!ate Articles 14, 19(1)(f), 31 and 311.\n\nIt. is said that Article 14 is violated because there i's no guidance as to who will be selected and O'a what basis the selection will be made\n\nfor. compulsory retirement. The impeached orders are said to violate Article 19 (1) (f) because it is an unreasonable restriction on the right D to continue until the age of superannuation which is 55 years. It is emphasized that there is a right to continue as long as one is physically fit The orders of compulsory retirement are challenged to violate . Article 31 because it is deprivatioi,1 of property without authority of law. .Lack of authority of law is said to be infraction of Articles 14 and 19.\n\nThe orders are also said to infringe Article 311 because these are made to remove persons from Government service.\n\nCounsel for the petitioners also contended that. the Government delegated power under the old rules and, therefore, the orders were bad.\n\nIt was said in writ petition No. 1253 of 1973 that the order was made by the Collector pursuant to delegatioi, i under Rule 244.(2) of the Rajasthan Service Rules under order dated 13 December, 1963.\n\nThe rules were amended in 1993 and again in 1972 and there was no F delegation under 'the amended rules which .governed the parties.\n\nRule 244(2) of the Raj•asthan Service Rules as it stood prior l.o the 1963 and 1972 amendments is set out in the decision in Ganga Ram v. State of Rajasthan (1). Rule 244 and the notes thereto are si:t out hereunder:-·\n\n\"(1) A Government se.rvant may retire froni service any G time after eompleting 30 years qimlifying service provided that he shall give in thil> behalf, a notice in writing to the appropriate authority, at least 3 months before the date <Yn which he wishes to retire.\n\n(2) Government retains an absolute right to . retire any Government servant after he has completed 25 years quali- H fying service without giving any reasons and no claim to special compensation on this account will be e~1tertaiii.ed. ---------\n\n(~) I.L.R . .1961 Raj. 371.\n\n This right will not be exercised except when it is in public interest to dispense with further service of a Government servant.\n\nNotes\n\n1. The right conferred by r. 244(2)°is intended to be exercised only against a Government .servnt whose efficiency is. impaired, but against whom it is not desirabe to make fqrmal choarges inefficiency or who has ceased to be fully efficiP-nt but not to such a degree as to warrant his retirement on compassionate allowance. It is not the inte1ation to use this rule as a financial weapon, that is to say, the provision.\n\nC would be used only in the case of Government servants who are considered unfit for retention on perso1aal as opposed tofinancial grounds. ·\n\n2. Compulsory retirement under this rule does not attract. the provisions of cl. (2) of Article 311 of the Constitution becanse such retirement is not conceived as a penalty but as D the exercise of a right reserved to Government of retiring a Government servant after he has served for a certain length of time.\n\nAccordingly, the procedure laid down in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, for formal proceeding against Government servants before removing them from service is 'aot meant to apply to\n\nuch cases.\" E\n\nI 0 0 5'\n\n Rule 244 was amended by notification dated 31 August, 1963 uswill appear from Rajasthan Code Vol. I-Part B corrected up to 3t December, 1967 Fourth Edition.\n\nThe amended rule is as follows:-\n\n\"244(1) A Government servant may; after giving at least three month~' previous notice in writing to the Govern- F ment, retire froip. the service on the date m1. which he completes 30 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice.\n\nProvided that a Government .servant of Class IV can seek retir.ement only if he has completed 30 years of qualifying service. ·\n\n\"(2) The Government may, after giving him at least three mQl,1th' previous notice in writing require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or attains the age of ?5 years or on any date thereafter to be specified in the notice :\n\nProvided that a Government servant of Class IV can only be required to retire on the date on which he completes 25 years of qualifying service or on a~1y date thereafter.\"\n\nRule 244 was again amended by notification dated 19 August, 1972.\n\nRule 244 as amended is set out hereunder :-\n\n\"244( 1) Government servant may, !lfti<r giving at least three months previous notice in writing to the Government, _retire from the service 0~1 the date on which he completes\n\n30 years of c1ualifying service or attans the age of 55 years or on any date thereafter to be specified i111 the notice :\n\nProvided that a Government servant of Cfass IV can seek retirement only if he has completed 30 years of qualifying .service.\n\n( 2) The Government may, after giving at least three months, previous notice in writing or by payment of three months pay and allowances in lieu of such notice require a Government sevant to retire from the service on the date on which he completes 25 years of qualifying service or on any date thereafter':.\n\nThe notes which were appended to Rule 244 before the amcndml\"nt <lated 31 August, 1963 remained •as notes to Rule 244 after both the\n\namendments dated 31 August, 1963. and 19 August, 1972. The notes wer.: promulgated along with the Rules by the Rajpramukh under Article 309.\n\nCouse! for the petitioners contended as follows.\n\nThe job of the permanent employee is not oi,1Jy property but perhaps the only property.\n\nPermanence involves the right to continue in service until one_ attains the age when one renders oneself not physically fit to discharge one's duty.\n\nThe proper age of suprannuation must be fixed on the scientific basis of the normal expectation of life.\n\nRule 244 (2) does not prescribe a minimum age for compulsory etirement and thus permits compulsory retirement of a permanent government servant long before the permissible age of superannuatio\\1.\n\nThis is not only removal within the meaning of Article 311 but is also an unguided discretionary and discrimin'atory power.\n\nWith regard tci writ petition No. 1898 of 1973 it was said that the -order was passed though the petitioner had not completed 25 years of government service and the order cast stigma on the conduct ahd integrity of the petitioner.\n\nJn T. C. Shivacharana Singh v. The State of Mysore( 1) rule 285 of the Mysore Civil Service Rules 1958 which confered power on the Government to retire compulsorily a Government servant in public\n\n-(l) A. I. R. 1965 s.c-:-280~-\n\ninterest oa his completing twenty five years of qualifying service or attaining fifty years of age, though the age of normal superannuation under rule 95 (a) was fixed at fiftyfive years was upheld on the ground that the rule laid down a reasonably long period of qualifying service.\n\nThis Court in .R. L. Butail v. Union of India(•) held that there are two exceptions to the protection afforded by Article 311 (2).\n\nFirst, where a permanent public servant is asked to -retire on the ground tat he has reached the age of superannuation which is reasonaoly fixed.\n\nSecond, where he is compu!orily retired under rules which prescribe the normal age of superannuation and provide a reasonably long period of qualifyi1ag service after which alone compulsory retirement can be\n\nordered.\n\nArticle 311 deals with termination of service by way of punishment.\n\nln R111ail's(1) case Fundamental Rule 56(j) confers power on the Government to pass an order to retire a Government servant after he has attained the age of 55 years if the Government is of the opinion that it is in the public interest to do so.\n\nThis Court in Union of India v. Col. J. N. Sinha(:!) said that if the authority bona fide formed the opinion to pass an order of retirement\n\nthe correctness of the opinion could not be challenged though the aggrieved party could contend that the opinion was formed on collateral grounds or was an arbitrary decision.\n\nIn Sinha's(2) case this Court said that compulsory retirement is not taking any penal action.\n\nAn order of compulsory retirement is really passed after taking into consideration the rights of the Government servant on the one band and the interest of the public which ordinarily coincides with the interest of Government on the other.\n\nIt is also established that an order of compulsory retirement does not deprive the Government servant of benefits earned till the age of his retirement.\n\nAn order of retirement is really passed on the basis of interest of administrative efficiency.\n\nRule 244(2) as it stands now does not specifically mention that an order is to be passed in the public interest. The notes to the rule indicate that the right to pass iJ.n order of compulsory retirement is to be .exercised only against the Government servant whose efficiency is impaired and against whom it is not desirable to make formal charges of\n\ninefficiency or who has ceased to be fully efficient but not to such a Jecrree as to warrant his retirement on compassionate allowance.\n\nThe \"' notes further say that it is not the intention to use this rule as a financial\n\n(l) [197i'J 2 s.c.R. s~. (2~ f!971] 1 S.C.R. 79L\n\nweapon, that. is to say, that the provision should be used only in tho case of Government servants who are considered unfit for rcention ~'11 :personal as opposed to financial grounds. The notes are promulgated with the rules in exercise of legislative power.\n\nThe notes are mad.: contemporaneously with the rules.\n\nThe function of the not.:s is to provide procedure and to control discretion.\n\nThe real purpose of 1he .notes is that when rules are silent the notes will fill up gaps.\n\nThis Court in Shyam Lal v. The State of U.P.( 1) CO!J-Sidered Articl.:· -465-A aild Note-1 appended thereto in the Civil Service Regulations relating to the retiring pensions of officers. Article 465A inter alia stated \"A retiring pension is also granted to an ofticer who is required by Government to retire after completing twentyfive years of service or more\". In Shyam Lal's(I) case Note 1 which was appended to Article 465-A was not only referred to but relied upon.\n\nNote 1 stated \"Government retains an absolute right to retire any officer after he has completed 25 years without giving any reason and no claim to special compensation on this account will be entertained. Tbe note further added by amendment later on \"The right will not be exercised except when it is in public interest to dispense with the further service of an officer\".\n\nOrie of the contentions in Shyam Lal's(l) casewas that Note 1 was , repugnant to Article 311 of the Constitution. This Court did not acc-:pt that contention. This Court said the purpose of Note 1 is not to confer on the Government any new right to retire compulsorily an ofikcr -0n completion of twenty five years of service but that it is intended to\n\n-erve as a rernjnder that the Government has such a right which it means to retain .. The reason is that one retains only what one already possesses.\n\nThe word \"retain\" shows that it is not a fresh right.\n\nThe right to retire compulsorily is dorlved from Rule 4 which cvnfel'f':cl on the Government the absolute right to retire an officer who completed twentyfive years service. Article 465-A was based on Rule 4.\n\nIn Shivaclwrana Singh'se) case the order of compulsory retirement was challenged on the ground that note 1 to Rule 285 itf the Mysore Civil Service Rules was not valid.\n\nThis Court held that the note applied to all government servants and was not open to challenge either under Article 14 or Article 16. The note was given effect to because'the note required that tlie_government servant against whom an order of compulsory retirement was proposed to be passed must have completed -either 25 years of active service or attained 50 years of age.\n\n(I) [1955]1S.C.R.26.\n\n(2) A.LR. 1965 S.C. 280.\n\nThe rr\"son why we refer to tkse two decisions in Shyam Lat's( 1) and Shivac/iarana Singh's(~) cases is that notes which are appended to rules .are of aid not only in applying the ru:es but also in interpreting the true import of the rules. ·\n\nJn Union of India v. K. P. Joseph (3) this Court considered the dkct of a Government order.\n\nUnder that order certain benefits would become applicable to certain persons who completed a number of wars of qualifying service.\n\nBrother Mathew, speaking 'tor the Court. said that although the Government cannot supersede statutory rules bv administrative instructions yet if tht:. rules framed undt:r Article 309 of thr.\n\nConstitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructlons not inconsistent with the rules already framed and these instructions will govern the cunditions of service.\n\nIn the present case, the notes arc part of the rules because they arc for the guidance of the authorities. They are not inconsistent with the rules but are intended to fill up gaps where the rules are silent.\n\nThe only question here is that formerly tqe rules said that compulsory retirement would be made in public interest but the present rule does not contain that part of the.old rule.\n\nThe deletion of that part of the ruie does not mean that the orders of compulsory retirement are not made in public intcrct. The notes to the rule make explicit what is implicit in the rules.\n\nThe right to be in public employment is a right to hold it according to rules. The right to hold is defeasible according to rules. The rules speak of compulsory re:iremcnt.\n\nThere is guidance in the rules as to when such compulsory retirement is made.\n\nWhen persons complete 2 5 years of service and the efficiency of such persons is impaired and\n\nyet it is desirable not to bring any charge of inefficiency or incompetency, the Government passes orders of such compulsory retirement: The Government servant in such a case coes not lose the benefits which a Government servant has already earned.\n\nThese orders of compulsory retirement are made in public interest.\n\nThis is the safety valve of making such orders so that no arbitraritll!SS or bad faith creeps in.\n\n1n Appendix 9 to the Rajasthan Service Rules Vol. II the power to ri:tire government servant after cotnpletion of 25 years of service is in the case of ministerial service (gazetted and non-gazetted post) conferred on the appointing authorities.\n\nIn the present case, the appointing authority is the Collector.\n\nThe cntent of the powe.r is .not c?anged by any amendment of the rule.\n\nTherefore, the ddegation is valtd.\n\n(1) [1955) 1 S.C.R. 26.\n\n(2) A. l.R. 1965 S.C. 280.\n\n(3) [1973] .2 S.C.R. 752.\n\n1here is no stigma in any of the impeached orders of compulsory retireme.nt. Counsel for the petitioners said that the order in writ petition No. 1898 of the 1973 was passed in the background that the peti-· tioner outlived his utility to Government. The order does not say so.\n\nThe order docs not contain any stigma. It was also said that he was not in continuous employment for 25 years.\n\nThe petitioner alleged his stage of service should be counted from l April, 1961. The facts alleged by the State are that the petitioner was appointed as Assistant Cashier with effect from 5 December, 1942. He was a minor at that time.\n\nHe attained 18 yea.rs of age on 4 December, 1946. He completed his qualifying service of 25 years on 4 December,\n\n1971. He has been in continuiJus service tor 25 years.\n\nFor these reasons we are of opinion that the order of compulsory retirement which are challenged do not violate Articles 14, 19, 31 and\n\n311. The writ petitions are dismissed. Parties will pay and bear their own costs.\n\nP.B.R Petitions dismissed.\n\nL 564 Sup. CI175-2500-20-!2-75-GIPF.", "total_entities": 62, "entities": [{"text": "TARA SINGH ETC. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "TARA SINGH ETC. ETC", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN AND ORS", "label": "RESPONDENT", "start_char": 22, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN AND ORS", "offset_not_found": false}}, {"text": "March 19, 1975", "label": "DATE", "start_char": 51, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "March 19, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KRISHNA IYER, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 67, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 84, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "v. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Rajasthan Service Rules", "label": "STATUTE", "start_char": 130, "end_char": 153, "source": "regex", "metadata": {}}, {"text": "art. 32", "label": "PROVISION", "start_char": 537, "end_char": 544, "source": "regex", "metadata": {"linked_statute_text": "Rajasthan Service Rules", "statute": "Rajasthan Service Rules"}}, {"text": "art. 311", "label": "PROVISION", "start_char": 747, "end_char": 755, "source": "regex", "metadata": {"linked_statute_text": "Rajasthan Service Rules", "statute": "Rajasthan Service Rules"}}, {"text": "Rajasthan Service Rules", "label": "STATUTE", "start_char": 1742, "end_char": 1765, "source": "regex", "metadata": {}}, {"text": "[1955) 1 S.C.R. 26", "label": "CASE_CITATION", "start_char": 3459, "end_char": 3477, "source": "regex", "metadata": {}}, {"text": "art. 309", "label": "PROVISION", "start_char": 3687, "end_char": 3695, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "[1973) 2 S.C.R. 752", "label": "CASE_CITATION", "start_char": 4582, "end_char": 4601, "source": "regex", "metadata": {}}, {"text": "ORIGIN.AL JURISDICTION", "label": "PETITIONER", "start_char": 4617, "end_char": 4639, "source": "ner", "metadata": {"in_sentence": "ORIGIN.AL JURISDICTION : Writ Petitions Nos."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 4718, "end_char": 4728, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4736, "end_char": 4757, "source": "regex", "metadata": {}}, {"text": "L K. Garg", "label": "LAWYER", "start_char": 4760, "end_char": 4769, "source": "ner", "metadata": {"in_sentence": "L K. Garg and S. C. Agrawal, for the Petitioners (in WP~. 1253, 1448 and 1898/73.) ·"}}, {"text": "S. C. Agrawal", "label": "LAWYER", "start_char": 4774, "end_char": 4787, "source": "ner", "metadata": {"in_sentence": "L K. Garg and S. C. Agrawal, for the Petitioners (in WP~. 1253, 1448 and 1898/73.) ·"}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 4846, "end_char": 4857, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and M. Qamaruddin for the Petitioners in W.Ps."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 4859, "end_char": 4873, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and M. Qamaruddin for the Petitioners in W.Ps."}}, {"text": "M. Qamaruddin", "label": "LAWYER", "start_char": 4878, "end_char": 4891, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and M. Qamaruddin for the Petitioners in W.Ps."}}, {"text": "Maya Rao", "label": "LAWYER", "start_char": 4944, "end_char": 4952, "source": "ner", "metadata": {"in_sentence": "Maya Rao, for Respondent (in W.P. No."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 4992, "end_char": 5005, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, A. G. Rajasthan, in W.Ps."}}, {"text": "A. G. Rajasthan", "label": "LAWYER", "start_char": 5007, "end_char": 5022, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, A. G. Rajasthan, in W.Ps."}}, {"text": "S. M. Jain", "label": "LAWYER", "start_char": 5063, "end_char": 5073, "source": "ner", "metadata": {"in_sentence": "1253 & 1898/73 only) and S. M. Jain for the Respondents, (in rest of W.Ps.)"}}, {"text": "RAY", "label": "JUDGE", "start_char": 5161, "end_char": 5164, "source": "ner", "metadata": {"in_sentence": "E The Judgment of the Court was delivered by\n\nRAY, C.J.-These writ petitions challenge the validity of orders of compulsory retirement."}}, {"text": "30 March, 1973", "label": "DATE", "start_char": 5331, "end_char": 5345, "source": "ner", "metadata": {"in_sentence": "1253 of 1973 the petitioner was served with an order dated 30 March, 1973."}}, {"text": "Tara Singh Patwari", "label": "PETITIONER", "start_char": 5391, "end_char": 5409, "source": "ner", "metadata": {"in_sentence": "The order was as follows,:-\n\n\"Whereas Shri Tara Singh Patwari has completed 25 years of qualifying service and whereas the State Government ts satisfied that it is in public interest to dispense with farther service of the said Government servant.", "canonical_name": "TARA SINGH ETC. ETC"}}, {"text": "Tara Singh", "label": "PETITIONER", "start_char": 5823, "end_char": 5833, "source": "ner", "metadata": {"in_sentence": "F.1(34)FD-A (Rules/62) dated 13.12.63 the undersigned hereby gives notice to the said Shri Tara Singh requiring him to retire with effect froni the date of the expiry of 3 calendar months fromthe service-of this llotice on him and further orders the compulsory retirement of Shri Tara Singh with effect from the said date.", "canonical_name": "TARA SINGH ETC. ETC"}}, {"text": "4 November, 1973", "label": "DATE", "start_char": 6603, "end_char": 6619, "source": "ner", "metadata": {"in_sentence": "1898 of 1973 the petitioner was served '.with an order dated 4 November, 1973 where also the order did not :state that the compulsory retirement was made by the Government on being satisfied that it was in public interest."}}, {"text": "30 March, 1970", "label": "DATE", "start_char": 6845, "end_char": 6859, "source": "ner", "metadata": {"in_sentence": "270 of 1973 the petitioner was served with an order dated 30 March, 1970: The order w'as similar to writ petition No."}}, {"text": "Articles 14, 19(1)(f), 31 and 311", "label": "PROVISION", "start_char": 7112, "end_char": 7145, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 7165, "end_char": 7175, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 7361, "end_char": 7371, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 7648, "end_char": 7658, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14 and 19", "label": "PROVISION", "start_char": 7779, "end_char": 7797, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 7837, "end_char": 7848, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "13 December, 1963", "label": "DATE", "start_char": 8235, "end_char": 8252, "source": "ner", "metadata": {"in_sentence": "1253 of 1973 that the order was made by the Collector pursuant to delegatioi, i under Rule 244.(2) of the Rajasthan Service Rules under order dated 13 December, 1963."}}, {"text": "Article 311", "label": "PROVISION", "start_char": 9943, "end_char": 9954, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "31 August, 1963", "label": "DATE", "start_char": 10462, "end_char": 10477, "source": "ner", "metadata": {"in_sentence": "E\n\nI 0 0 5'\n\n Rule 244 was amended by notification dated 31 August, 1963 uswill appear from Rajasthan Code Vol."}}, {"text": "3t December, 1967", "label": "DATE", "start_char": 10542, "end_char": 10559, "source": "ner", "metadata": {"in_sentence": "I-Part B corrected up to 3t December, 1967 Fourth Edition."}}, {"text": "Rajpramukh", "label": "OTHER_PERSON", "start_char": 12611, "end_char": 12621, "source": "ner", "metadata": {"in_sentence": "promulgated along with the Rules by the Rajpramukh under Article 309."}}, {"text": "Article 309", "label": "PROVISION", "start_char": 12628, "end_char": 12639, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 13281, "end_char": 13292, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Mysore Civil Service Rules 1958", "label": "STATUTE", "start_char": 13662, "end_char": 13693, "source": "regex", "metadata": {}}, {"text": "Article 311", "label": "PROVISION", "start_char": 14219, "end_char": 14230, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Civil Service Rules 1958", "statute": "the Mysore Civil Service Rules 1958"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 14603, "end_char": 14614, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Civil Service Rules 1958", "statute": "the Mysore Civil Service Rules 1958"}}, {"text": "Article 465A", "label": "PROVISION", "start_char": 17123, "end_char": 17135, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Shyam Lal's(I", "label": "OTHER_PERSON", "start_char": 17302, "end_char": 17315, "source": "ner", "metadata": {"in_sentence": "In Shyam Lal's(I) case Note 1 which was appended to Article 465-A was not only referred to but relied upon.", "canonical_name": "Shyam Lal's(I"}}, {"text": "Article 465", "label": "PROVISION", "start_char": 17351, "end_char": 17362, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Shyam Lal's(l", "label": "OTHER_PERSON", "start_char": 17810, "end_char": 17823, "source": "ner", "metadata": {"in_sentence": "Orie of the contentions in Shyam Lal's(l) casewas that Note 1 was , repugnant to Article 311 of the Constitution.", "canonical_name": "Shyam Lal's(I"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 17864, "end_char": 17875, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 465", "label": "PROVISION", "start_char": 18515, "end_char": 18526, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Shivaclwrana Singh'se", "label": "OTHER_PERSON", "start_char": 18554, "end_char": 18575, "source": "ner", "metadata": {"in_sentence": "In Shivaclwrana Singh'se) case the order of compulsory retirement was challenged on the ground that note 1 to Rule 285 itf the Mysore Civil Service Rules was not valid.", "canonical_name": "Shivac/iarana Singh's(~"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 18829, "end_char": 18839, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 18843, "end_char": 18853, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Shyam Lat", "label": "OTHER_PERSON", "start_char": 19194, "end_char": 19203, "source": "ner", "metadata": {"in_sentence": "The rr\"son why we refer to tkse two decisions in Shyam Lat's( 1) and Shivac/iarana Singh's(~) cases is that notes which are appended to rules .are of aid not only in applying the ru:es but also in interpreting the true import of the rules. ·", "canonical_name": "Shyam Lal's(I"}}, {"text": "Shivac/iarana Singh's(~", "label": "OTHER_PERSON", "start_char": 19214, "end_char": 19237, "source": "ner", "metadata": {"in_sentence": "The rr\"son why we refer to tkse two decisions in Shyam Lat's( 1) and Shivac/iarana Singh's(~) cases is that notes which are appended to rules .are of aid not only in applying the ru:es but also in interpreting the true import of the rules. ·", "canonical_name": "Shivac/iarana Singh's(~"}}, {"text": "Mathew", "label": "OTHER_PERSON", "start_char": 19621, "end_char": 19627, "source": "ner", "metadata": {"in_sentence": "Brother Mathew, speaking 'tor the Court."}}, {"text": "Article 309", "label": "PROVISION", "start_char": 19785, "end_char": 19796, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "[1955) 1 S.C.R. 26", "label": "CASE_CITATION", "start_char": 21818, "end_char": 21836, "source": "regex", "metadata": {}}, {"text": "Articles 14, 19, 31 and\n\n311", "label": "PROVISION", "start_char": 22804, "end_char": 22832, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}]}
{"document_id": "1975_3_154_156_EN", "year": 1975, "text": "SHER MOHAMMAD @ SERU\n\nTHE STATE OF WEST BENGAL January 8, 1975\n\n[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]\n\nMaintena1we of ll!ternal Security Act (26 of 1971), s. 3(4)-Communication of District Magistrate's order by State Government to Cemral Government before approval by State Government-If sufficient compliance with statuJory requirement.\n\nSection 3 of the Maintenance of Internal Security Act, 1971, indicates that the State Government mav directly issue all order of detention or, if it is done by a lesser authority, approve of such detention order as provided.\n\nSection 3(4) obl(gates the State Government to communicate, within 7 days of the order of detention it makes or approves, that fact to the Central Go,·- ctoment, together with the grounds and other relev11nt particulars. The pro cedural mandate is inviolable exc:ept on pril of the order being avClided.\n\nJn the present case, the order of detention was 'made by the Dt. Magistrate on November 21, 1972 and the order wa:; approved by the State Government on December 2, 1972. The order was however communicated to the Central Oovemment on December 1, 1972.\n\nHELD : There was no strict compliance with . statutory formalities and since there has been ao, infringement of the procedural safeguard, the order of detention is invalid. [155H-156Al\n\n(11) The communication to the Centml Government by the State Oovcrn mcnt of its upproval was not with'n 7 days after its approval, as required by s. 3(4), because, the approval by the State Government was onl1 a clay after\n\nthe communication to the Centrul Government. (1$50]\n\n(b) If what Is communicated is only the order of the D!strict Magistrate. this was not suffidcnt compliance with the statutory requirement, nnd ,\\t further was also beyond the 7 days' period (155 OHJ\n\nORIGINAL JURISDICTION : Writ Petition No. 522 of 1974.\n\nPetition under Article 32 of the Constitution.\n\nff. s. Marwah for the petitioner.\n\nS. C. Majumdar, G. S. Chatterjee and Sukumar Basu for the respondent.\n\nKRISHNA IYER, J. The detenu petitioner, challenges his detention 011 various rounds but Shri H S. Marwah, appearing as amicus curiae,\n\nhas raised big contentions and small, some of which do not merit consi- (; dt-1'ation a.nd others need not be deialt with since, on a short point, the petition must succeed.\n\nThe scheme of the Marntenance of Internal Security Act, 1971 (Act No. 26 of 1971) (hereinafter called the MISA, for short) is in keeping with Art. 27 of the Constitution and emphasizes the various stages at which there will be consideration of the need for the deten- H tion by different authorities, such .as the District Magistrate, the State Governm<:nt oand, ultimately, the Cefttral Government. For thr effective exen:ise of this power a scheme has been built into the statute.\n\nSHER MO~MMAD v. WEST BENGAL (Krishna Iyer,/.) 155\n\nWe are concerned at present with the power to direct release of the detcnu. We may extract the provision here :\n\n14 (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may. at any time, he revok~ or modifiea-\n\n(b) notwithstanding that the order has been made by a\n\nSate Government, by the Cdatral Government.\" .\n\nWith a view to posting the Central Government with th6 ':detention. nm! the grounds therefor, s. 3(4) proyides thus : '\n\n\"3. Power to make orders detaining certain persons.\n\n( 4) When any order is made or approved by the State Government u,1der this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particul11rs as in the opinion of the State Government have a bearing on the 1,1ecessity for the order.\" (emphasis, ours) ·\n\nA fair reading of s. 3 indicates that the State Government maY directly issue an order of detention or, if it is done by a lesser a1Jthority, approve of such detention order as provided in the statute. Subs. (4) or s. 3, which we have extracted, obligates the State Government to communicate, wihin seven days of the order of cletention 1t makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relcvr:int particulars. Even •assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to the Central Governme1,1t within the time specified.\n\nThis procedural mandate is inviolable except on peril of the order being voided.\n\nIn the present case it is obvious that the detention order wa~ made on November 21, 1972 by the District Magistrate and approved by the , State Government on December 2, 1972. It is curiGus that on the State's own showing the communication to the Central Government in compliance with s. 3 ( 4) of the MISA has been made on December 1, 1972. This date is beyond seven days of the District Magistrate's order and it could not have been in compliance with the seven days' spell after the approval by the State Government, that having been done only a day after the alleged communication to the Central Government. It is thus plain that the State Government before H . the approval itself was made. Secondly, if what it communicated was the order of the District Magistrate, it was not sufficient compliance with the statutory requirement. Moreover, it was beyond the seven days' period.\n\n156 SUPREME COURT REPOR'l'S [1975J 3 s.c.R.\n\nIn short, there has been an infringement of the procedural safeguard. This Court has, in several rulings, held that the liberty of the citien is a priceless freedom, sedulously secured by the Constitution. Even, so, during times of emergency, in compliance with the provisions of the Constitution, the said freedom may be curtailed, but only in strict compliance with statutory formalities which are the vigilant concern of the Courts to enforce.\n\nWe have pointed out how in the present case there has been a failure on the part of the State Government to comply \\Vith s.3 ( 4).\n\nJutiicial enginring prevents breaches of constitutional .dykes protecting fundamc:ntal freedoms.\n\nThe order of detention is invalid and the <letenu is liable to b~ released.\n\nThe rule is made absolute.\n\nPetition allowed.\n\nV. P. S.", "total_entities": 33, "entities": [{"text": "SHER MOHAMMAD @ SERU", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "SHER MOHAMMAD @ SERU", "offset_not_found": false}}, {"text": "THE STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 22, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "January 8, 1975", "label": "DATE", "start_char": 47, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "SHER MOHAMMAD @ SERU\n\nTHE STATE OF WEST BENGAL January 8, 1975\n\n[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 65, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 162, "end_char": 169, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 346, "end_char": 355, "source": "regex", "metadata": {"statute": null}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 363, "end_char": 405, "source": "regex", "metadata": {}}, {"text": "Section 3(4)", "label": "PROVISION", "start_char": 572, "end_char": 584, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "November 21, 1972", "label": "DATE", "start_char": 956, "end_char": 973, "source": "ner", "metadata": {"in_sentence": "Magistrate on November 21, 1972 and the order wa:; approved by the State Government on December 2, 1972."}}, {"text": "December 2, 1972", "label": "DATE", "start_char": 1029, "end_char": 1045, "source": "ner", "metadata": {"in_sentence": "Magistrate on November 21, 1972 and the order wa:; approved by the State Government on December 2, 1972."}}, {"text": "December 1, 1972", "label": "DATE", "start_char": 1110, "end_char": 1126, "source": "ner", "metadata": {"in_sentence": "The order was however communicated to the Central Oovemment on December 1, 1972."}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 1461, "end_char": 1468, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 32", "label": "PROVISION", "start_char": 1864, "end_char": 1874, "source": "regex", "metadata": {"statute": null}}, {"text": "s. Marwah", "label": "LAWYER", "start_char": 1901, "end_char": 1910, "source": "ner", "metadata": {"in_sentence": "s. Marwah for the petitioner."}}, {"text": "S. C. Majumdar", "label": "LAWYER", "start_char": 1932, "end_char": 1946, "source": "ner", "metadata": {"in_sentence": "S. C. Majumdar, G. S. Chatterjee and Sukumar Basu for the respondent."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 1948, "end_char": 1964, "source": "ner", "metadata": {"in_sentence": "S. C. Majumdar, G. S. Chatterjee and Sukumar Basu for the respondent."}}, {"text": "Sukumar Basu", "label": "LAWYER", "start_char": 1969, "end_char": 1981, "source": "ner", "metadata": {"in_sentence": "S. C. Majumdar, G. S. Chatterjee and Sukumar Basu for the respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 2003, "end_char": 2015, "source": "ner", "metadata": {"in_sentence": "KRISHNA IYER, J. The detenu petitioner, challenges his detention 011 various rounds but Shri H S. Marwah, appearing as amicus curiae,\n\nhas raised big contentions and small, some of which do not merit consi- (; dt-1'ation a.nd others need not be deialt with since, on a short point, the petition must succeed."}}, {"text": "H S. Marwah", "label": "LAWYER", "start_char": 2096, "end_char": 2107, "source": "ner", "metadata": {"in_sentence": "KRISHNA IYER, J. The detenu petitioner, challenges his detention 011 various rounds but Shri H S. Marwah, appearing as amicus curiae,\n\nhas raised big contentions and small, some of which do not merit consi- (; dt-1'ation a.nd others need not be deialt with since, on a short point, the petition must succeed."}}, {"text": "scheme of the Marntenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 2317, "end_char": 2373, "source": "regex", "metadata": {}}, {"text": "Art. 27", "label": "PROVISION", "start_char": 2455, "end_char": 2462, "source": "regex", "metadata": {"linked_statute_text": "The scheme of the Marntenance of Internal Security Act, 1971", "statute": "The scheme of the Marntenance of Internal Security Act, 1971"}}, {"text": "Cefttral Government", "label": "ORG", "start_char": 2692, "end_char": 2711, "source": "ner", "metadata": {"in_sentence": "27 of the Constitution and emphasizes the various stages at which there will be consideration of the need for the deten- H tion by different authorities, such .as the District Magistrate, the State Governm<:nt oand, ultimately, the Cefttral Government."}}, {"text": "section 21", "label": "PROVISION", "start_char": 3007, "end_char": 3017, "source": "regex", "metadata": {"linked_statute_text": "The scheme of the Marntenance of Internal Security Act, 1971", "statute": "The scheme of the Marntenance of Internal Security Act, 1971"}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 3025, "end_char": 3050, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central Government", "label": "ORG", "start_char": 3242, "end_char": 3260, "source": "ner", "metadata": {"in_sentence": "With a view to posting the Central Government with th6 ':detention."}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 3309, "end_char": 3316, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3780, "end_char": 3784, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3977, "end_char": 3981, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "Central Governme1,1", "label": "ORG", "start_char": 4400, "end_char": 4419, "source": "ner", "metadata": {"in_sentence": "Even •assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to the Central Governme1,1t within the time specified."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4816, "end_char": 4820, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPOR'l'S [1975J 3 s.c.R.", "label": "COURT", "start_char": 5421, "end_char": 5460, "source": "ner", "metadata": {"in_sentence": "156 SUPREME COURT REPOR'l'S [1975J 3 s.c."}}, {"text": "s.3", "label": "PROVISION", "start_char": 6031, "end_char": 6034, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_157_159_EN", "year": 1975, "text": "K. K. WAHI & ORS\n\nTHE GENERAL MANAGER, N. RLY. & ORS.\n\nJanuary 10, 1975\n\n[A. N. RAY, C.J., H. R. :KHANNA AND P. K. GoswAMr, JJ.J\n\n/?'1illl'ay Establishment Code-Paragraph 216-Scopc of.\n\n15 7\n\nThe nine petitioners before the High Court were selected for the post of computers and were empanelled. After a few months the panel wa\" 'ancelled. In a writ petition under art. 226 of the Constitu.tion the petitioners contended that there. were no procedural irregularities or defect' in the selection and as such the cancellation of the panel was improper. The\n\nHigh Court held that since there were only four vacancies, only five persons could be selected for the panel after taking into account 25 per cent unforseen vacancies and rejected the contention of the petitioners that work-charged short term vacancies should also have been taken into account.\n\nDismissing the appeal.\n\nHELD: The High Court was right in holding that work-charged short term vacancies were not such as should be said to arise due to normal wastage during the currericy of the panel. Vacancies arisillg due to normal wastage during the currency of a panel are such as could generally be foreseen because they occur on account of retirement of those at present holding the pas ts or for other similar cause.\n\nA short term va:ancy for a work-charged job cannot\n\nb~ aid to arise due to normal wastage.\n\n[159C] ·\n\nC!Vll APPELLATE JURISDICTION : Civil Appeal No. 65~ o( 1972.\n\nAppeal by Special Leave from the Judgment & Order dated the 14th July, 1971 of the Delhi High Court in L.P.A. No. 44 of 1971.\n\nB. R: L. Iyengar, S. K. Mehta, K. R. Nagaraja and M.\n\nQamaruddin for the appellants.\n\nI'. P. Rao and GirLh Chandra, for the respondents.\n\nKHANNA, J. This appeal by special leave by K. K. Wahi and two others is directed against the judgment of the Delhi High Court affirming on appeal the decision of the learned single Judge whereby petition under article 226 of the Constitution of India filed by nine petitioners, including the three appellants, to challenge an order about the cancellation of a penal by the Railway Board was only partly allowed.\n\nThe Senior Personnel Officer, Northern Railway noti!.lccl on May 11, 1970 the names of nine writ petitioners as having been selected for the posts of computors in the grade of Rs. 335-485.\n\nPrior . to that date, four of the petitioners were officiating as computors on ad hoc basis. The fifth petitioner was offic:iating as head draftsman and the remaining four petitioners were working as draftsmen. The p0st of computer was a selection post. The procedure for filling of such\n\n158 SUPREME COURT l, l.EPORTS\n\n[1975] 3 S:C.R.\n\na post is given in paragraphs 213 to 216 of the Indian Railway Establishment Manual.\n\nPmagraph 216, which is material for our purposes, reds as under :\n\n\"216. After the competent authority has accepted lhc rccommend'ations of the Selection Board, the names of the candidates selected will be notified to the candlclatc:;.\n\nA Panel once approved should normally not be c:m.; dled or ameaded. If after the formation and announcement of the panel with the approval of the competent autl1onty, it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to Cl!.l\\ltel or amend such a panel, this should be done after obtai11in1~ the approval nf authority next higher than the one tint approved the panel.\"\n\nThe Senior P.::rsoi, mcl Oft1cer notified on Octob.:r 30. 1970 th~ rnncellat10n of the r;•anCI relating to the nine petitiOlcrn b) the Railway Board.\n\nFcdmg aggucved against the order of the Railway Board, the nine petitioners filed writ petition in the High Court praying (or the issuance of a writ for quashing th'l order dated Octooer 30, 1970. It was urged 01,1 behalf of the petitioners that the power to cancel the panel cJuiu be exercised under paragraph 216 reproduced abow it it was fo1Jnd that there were procedural irregularities or other defects.\n\nThere was, it was further submitted, n.o procedural irregularity or other defoct in the selection of the petitioners and as such thi: cancellation of the ouhcl was not proper.\n\nAs a,11ai11st that, it was stated on behalf of the railwav administration that there had be1~11 m-occdu1•a\\ irregularities and other defects in the selection of the peti1ioncrs for the panel. The cancellation of the panel was in the circumstances state.ti to be 11Ul improper.\n\nIt wa:;; not disputed before the learned single Judge that there were only four vacancies when applications for the selection of the panel were invjted on May 21, 1969. In view of those four vacancies and 25 per cent for unforeseen vacancies, only five of the petitioners, it was held, could be selected for the panel. The contention nn behalf of the pf:titioners that, in considering the number of vacancies for the selection of panel, workcharged short-term vacancies should also have been taken into account as they constituted anticipated vacai,1cies was rejected.\n\nIn the result the learned single Judge qU'ashed the order for cancellation of the panel in so far as it related to five out of the nine petitioners. The cancellation order was, however, upheld in respect of the remaining four petitioners including the three appellants.\n\nOn cross appeals having been fileu by the appellants and the railway adm'inistration, the Divisio1,1 Bench of the High Courll affirmed the decision of the learned single Judge and dismissed 'both the appeals.\n\nBefore us Mr. Iyengar on behalf of the appellants has submitted that oaparl: from the vacancies which were taken into account by the\n\nK •. K. WAHi v. G.M., N. RLY (Khanna, J.) 15 9\n\n\\ High Court, there were workcharged short-term anticipated vancancicc\"\n\nIt is submitted that.' these short-term anticipated vacancies too should have also been taken into account in considering the total number of vacancies for which selection was to be made for the panel. We arc unable to accede to the above submission. According to the instructions contained in letters dated November 12, 1968 and April 30, 1969 anticipated vaC'ancies could be only those vacancies which were likely B to arise due to normal wastage during the currency of the panel. A\n\n. panel under paragraph 217 was to be current for two years from the\n\ndate of approval by the competent authority or till its exhaustion, whichever w•as earlier.\n\nWe agree with the High Court that workcharged short-term vacancies are not such as can be said to arise due to norm11l wastage during the currency of the panel.\n\nVac:mcics arising due to normal wastage during the currency of a panel an: c such as can 1?enerallv be foreseen because they occur on account of the retirement of those at present holding the posts or for other similar cause. A short-term vacancy for a workcharged job cannot be said to •arise due to nonnal wastage.\n\nThe result is that the appeal fails and is dismissed, but in the circumstances without costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 21, "entities": [{"text": "ORS\n\nTHE GENERAL MANAGER, N. RLY. & ORS", "label": "RESPONDENT", "start_char": 13, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "THE GENERAL MANAGER, N. RLY. & ORS", "offset_not_found": false}}, {"text": "January 10, 1975", "label": "DATE", "start_char": 55, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "January 10, 1975\n\n[A. N. RAY, C.J., H. R. :KHANNA AND P. K. GoswAMr, JJ.J\n\n/?'1illl'ay Establishment Code-Paragraph 216-Scopc of."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 74, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "H. R. :KHANNA", "label": "JUDGE", "start_char": 91, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "art. 226", "label": "PROVISION", "start_char": 365, "end_char": 373, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "L. Iyengar", "label": "OTHER_PERSON", "start_char": 1576, "end_char": 1586, "source": "ner", "metadata": {"in_sentence": "B. R: L. Iyengar, S. K. Mehta, K. R. Nagaraja and M.\n\nQamaruddin for the appellants.", "canonical_name": "L. Iyengar"}}, {"text": "S. K. Mehta", "label": "OTHER_PERSON", "start_char": 1588, "end_char": 1599, "source": "ner", "metadata": {"in_sentence": "B. R: L. Iyengar, S. K. Mehta, K. R. Nagaraja and M.\n\nQamaruddin for the appellants."}}, {"text": "K. R. Nagaraja", "label": "OTHER_PERSON", "start_char": 1601, "end_char": 1615, "source": "ner", "metadata": {"in_sentence": "B. R: L. Iyengar, S. K. Mehta, K. R. Nagaraja and M.\n\nQamaruddin for the appellants."}}, {"text": "M.\n\nQamaruddin", "label": "OTHER_PERSON", "start_char": 1620, "end_char": 1634, "source": "ner", "metadata": {"in_sentence": "B. R: L. Iyengar, S. K. Mehta, K. R. Nagaraja and M.\n\nQamaruddin for the appellants."}}, {"text": "I'. P. Rao", "label": "OTHER_PERSON", "start_char": 1656, "end_char": 1666, "source": "ner", "metadata": {"in_sentence": "I'."}}, {"text": "GirLh Chandra", "label": "OTHER_PERSON", "start_char": 1671, "end_char": 1684, "source": "ner", "metadata": {"in_sentence": "P. Rao and GirLh Chandra, for the respondents."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 1708, "end_char": 1714, "source": "ner", "metadata": {"in_sentence": "KHANNA, J. This appeal by special leave by K. K. Wahi and two others is directed against the judgment of the Delhi High Court affirming on appeal the decision of the learned single Judge whereby petition under article 226 of the Constitution of India filed by nine petitioners, including the three appellants, to challenge an order about the cancellation of a penal by the Railway Board was only partly allowed."}}, {"text": "K. K. Wahi", "label": "PETITIONER", "start_char": 1751, "end_char": 1761, "source": "ner", "metadata": {"in_sentence": "KHANNA, J. This appeal by special leave by K. K. Wahi and two others is directed against the judgment of the Delhi High Court affirming on appeal the decision of the learned single Judge whereby petition under article 226 of the Constitution of India filed by nine petitioners, including the three appellants, to challenge an order about the cancellation of a penal by the Railway Board was only partly allowed.", "canonical_name": "K. K. WAHI & ORS"}}, {"text": "article 226", "label": "PROVISION", "start_char": 1918, "end_char": 1929, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 1937, "end_char": 1958, "source": "regex", "metadata": {}}, {"text": "Senior Personnel Officer, Northern Railway noti!.lccl on", "label": "PETITIONER", "start_char": 2125, "end_char": 2181, "source": "ner", "metadata": {"in_sentence": "The Senior Personnel Officer, Northern Railway noti!.lccl on May 11, 1970 the names of nine writ petitioners as having been selected for the posts of computors in the grade of Rs."}}, {"text": "May 11, 1970", "label": "DATE", "start_char": 2182, "end_char": 2194, "source": "ner", "metadata": {"in_sentence": "The Senior Personnel Officer, Northern Railway noti!.lccl on May 11, 1970 the names of nine writ petitioners as having been selected for the posts of computors in the grade of Rs."}}, {"text": "May 21, 1969", "label": "DATE", "start_char": 4576, "end_char": 4588, "source": "ner", "metadata": {"in_sentence": "It wa:;; not disputed before the learned single Judge that there were only four vacancies when applications for the selection of the panel were invjted on May 21, 1969."}}, {"text": "Iyengar", "label": "OTHER_PERSON", "start_char": 5486, "end_char": 5493, "source": "ner", "metadata": {"in_sentence": "Before us Mr. Iyengar on behalf of the appellants has submitted that oaparl: from the vacancies which were taken into account by the\n\nK •. K. WAHi v. G.M., N. RLY (Khanna, J.) 15 9\n\n\\ High Court, there were workcharged short-term anticipated vancancicc\"\n\nIt is submitted that.'", "canonical_name": "L. Iyengar"}}, {"text": "November 12, 1968", "label": "DATE", "start_char": 6035, "end_char": 6052, "source": "ner", "metadata": {"in_sentence": "According to the instructions contained in letters dated November 12, 1968 and April 30, 1969 anticipated vaC'ancies could be only those vacancies which were likely B to arise due to normal wastage during the currency of the panel."}}, {"text": "April 30, 1969", "label": "DATE", "start_char": 6057, "end_char": 6071, "source": "ner", "metadata": {"in_sentence": "According to the instructions contained in letters dated November 12, 1968 and April 30, 1969 anticipated vaC'ancies could be only those vacancies which were likely B to arise due to normal wastage during the currency of the panel."}}]}
{"document_id": "1975_3_186_192_EN", "year": 1975, "text": "18 6\n\nDULAI. ROY A v.\n\nTHE DISTRICT MAGISTRATE, BURDWAN AND ORS.\n\nJanuary 15, 1975\n\n[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]\n\nMaintenance of l11ternal Security Act, 1971. Section 3-Passing of order\n\n• B of detemion dn the same facts while petitioner was in custody as an undertrial-Arrest and dete11tion of petitioner as soon as he was discharged- Detention, if illegal.\n\nIn connection with two incidents of theft, two cases, one on 21-7-72 and the other on 1-8-72, under sec. 379, Penal Code, were registered with the police. The petitioner was not named in the F.l.R.\n\nHis complicity was detected in the course of investig'ation..\n\nHe was consequently arrested on 3-8-72 and sent up before the Judicial Magistrate. On 21~8-72 when the C petitioner was in custody as an undertria\\, and order of detention was made by the District Magistrate, the respondent, under Sec. 3 of the Maintenance of Intrnal Security Act, 1971, with a \".icw to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the commodity.\n\nAfter further investigation, the police submitted a final report and 1he petitioner was discharged in both the cases on 3-9-72. on the sal):l.e day,, he was taken into custody pursuant to the order of detention which is impugned in the writ petition instituted by him on a letter dated August 24, 1974, from D the jail.\n\nIt was contended that the order of detention has been made to subvert the process of ordinary penal law, as a colourable exercise or jurisdiction and was, therefore illegal.\n\nAccepting the contention and making the rule absolute,\n\nHELD : While it .is true, as an abstract legal proposition that an order of preven1ive detention under .the Act may be validly pasSed against a person in jail c.ustody on the same f<!_cts on which he is being prosecuted for a substantive offence in a court, such an prder of detention is more easily vulnerable-than the one against a person not in such custody-to the charge that without there being any basis whatever for the satisfaction of the detaining authority, which is a. condition precedent for taking action under s. 3 the power has been misused as a cloak solely for the purpose of puni:; hing the detenu for the substantive offence for which he was being prosecuted by subverting and circumventing the penal Jaw and irksome court procedure. To make the di:tention order immune against such an attack, the detaining authority in its counter-allidavit must particularise all the material circumstances on the basi5 of which he was satisfied as to the nessity of the preventive action despite the detenu being already in jail custody and having no freedom of action on the date of the detention order. Jn the present cas1~ this bas not ben done.\n\nNo counter.affidavit bas been filed by the person who had made the impugned order. Even the Deputy Secretary who has :filed the counter aftr gathering some information from the record docs not disclose all the material facts from which it would be rationally possible for the detaining authority to predi'catc that if the impugned order was not made against the petitioner, though in judicial custody, he could be able to indulge in the prejudicial activities indicated in the impugned order. There is no avertment v1hatever that the charges against the petitioner were tru'e but the evidence cojlected against the netitioner was deficient, or, for reason other than the charge being groundless, the prosecution of the petitioner for substantive offences was foredoomed to failu_re.\n\nThe circumstances in which the petitioner was discharged by the Judicial Magistrate have not been set out. A bare statement that a \"final report\" was submitted by the Police is neither here nor there. The counter-affidavit is silent with regard to the nature of this police report and the situation in which the petitioner was discharged. It does not say whether this repqrt had reference to deficiency or sufficiency of\\evidence or groundlessness of the charge against the petitioner.\n\n[189E-H; J90R-B]\n\nI I\n\nThe grounds of detention relate to two incidents of theft simpliciter in respect of which the petitioner could easily be prosecuted utider the penal law.\n\nJ ~1 the absence of any explanation or apparent reason as to why his prosecution .for the substantiv~ offences resulted in his discharge and as. to why the\n\nmaking of the preventive order was deemed necessarv even wbile he was in jail custody and had no freedom of action the conclusion is inescapable that the impugned order has been passed mechanically and as a colourable exer- . cise of jurisdiction. f 190Hl .\n\nNoor Chand Sheikh v. State of West Bengal, AIR 1974. S.C. 2120 relied on.\n\nRameslnrar Shaw v. District Magistrate Burdwan, [1964] 4_ S.C.R. 921, Sri Lal Shaw v. State of West Bengal. Wr:t Petition No. 453/74 decided on 4-12-1974, and Kartick Chander Guha v. State of West Bengal, A.I.R. 1974 S.C. 2149, referred to.\n\nThe failure to furnish the counter-affidavit of the authority who bad passed the order of detention where the order of detention is attached on the ground of being a colou.rable exerdse of jurisdiction, \"may assume the shape of serious infirmity leading the court to declare tbe detention illegal.\" [18901\n\nSliaik Hanif v. State of West Bengal, A.LR. 1974 S.C. 679 referred to.\n\nORIGINAL JURISDICTION: Writ Petition No~ 428 oi 1974.\n\nUnder Art. 32 of t.he Constitution of J ndia.\n\nD A. K. Gupta, for the petitioner.\n\nG. S. Chattujee, for respondents.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA J.-Dulal Roy, the petitioner challenges the order, dated August 21, 1972, of his detention made by the District Magistrate, Burdwan under s.3 of the Maintenance of Internal Security Act, 1971 (hereinafter called the Act).\n\nThe order tates that it is necessary to detain him with a view to preventing him from acting in any manner prejudicia1 to the maintenance of supplies and services essential to the community.\n\nThe grounds of detention communicated to the detenue run as F under:\n\n\"1. On 21.7.72 at I a.m. you wit!\\ your associates Kartick Kannaker and others committed theft of Electric wire from Tower Nos. 23 and 24 situated near Dhangachha village and QY such act you cause stoppage of electric\n\nsupply which is essential for maintenance of supplies and services to the community, in Memari area and its vicinity.\n\n2. On 29-7r 72 at 2 a.m. you with your associates committed theft of Tower Members from Tower Nos. 246, 247, 248 situated on the field near Dewandighi, P. S..\n\nBurdwan and by commission of such theft the towers were likely to fall resulting in stoppage of supply electricity which is essential for maintenance of supplies and services to the community, in Calcutta area and its suburbs.\"\n\nJn connection with the above thefts, two cases, one on 21-7-72 :and the other on 1-8-1972, under s. 379, Penal Code were registered with the police.\n\nThe petitioner was not named in the F.I.R His complicity was detected in the course of investigation. He was consequently arrested on 3-8-72 and sent up befori:: the Judicial Magistrate.\n\nAfter further investigation, the police submitted a final report and the petitioner was discharged in both the cases on 3-9-72.\n\nOn the same day, he was taken into custody pursuant to the impugned order of detention.\n\nMr. A. K. Gupta appearing as amicus curiae fer the petitioner contends that the impugned order has been passed to subvert the process -of the ordinary penal law, as a colourable exercise of jurisdiction. It is stressed 1hat on 21-8-72 when the detention order was passed, the petitioner was already in custody as an undertrial.\n\nIn the absence -'Of anything in the counter affidavit showing that his custody w2, s going to terminate. soon, proceeds the argument, it was not reawnably possible for the authority to be satisfied that the petitioner might indulge in prejudicial activities unless he was detained. It is urged that the detaini!lg authoritly never applied its mind to satisfy itself with reg11rd to this impera1ive requirement of s. 3 and consequently the order of detention is illegal. To highlight the casualness of the authority in. taking the impugned action, Counsel has pointed out that the counter-affidavit has not been filed by the District Magistrate who had made the impugnled order. In support of these contentions, learned Counsel has relied upon Rameshwar Shaw v. DWrict Magistrate Burdwan( 1) Noor Chand Sheikh v. State of Wes~ Bengal( 2 ) and the recent judgment of this Court in Sri Lal Shaw v. State of West Bengal.(B)\n\nMr. Chatterjee, learned Counsel for the Respondent-Stale submits that the mere fact that the petitioner was on the date of the detention\n\norder in judicial custody did not stand in the way of the detaining authority being satisfied about his propensity to act preinliicially in future after his release from judicial custody.\n\nIt is emphasised that the authoriy must have been aware that the petitioner was likely to be released shortly as in fact he was released by the Judicial Magistrate on 3-9-72, i.e. about 13 days after the making of the detention order.\n\nReference, in this connection, has been made to Kartick Chander Guha v. State of West Bengal.(4 )\n\nSection 3 of the Act provides that the Central Government or the State Government may if satisfied with respect to any perwn that with a view to preventing him from acting in any manner prejudicial to ...... , . (iii) the maintenance of supplies and services essential to the community, it is necessary so to do, make an order directing that such person be detained.\n\nTt will be seen that the satisfaction of the authority as to the inclination of such person to act in any prejudicial manner indicated in sub-clauses (i) to (iii) of s.3 (I )(a) is the sine\n\nqua non for making an order of his detention.\n\nThe scheme of the section presupposes that on the date of the order of detention or in\n\n(1)[1964] 4, S.C.R. 921.\n\n(2) A.LR. 1974 S.C. 2120.\n\n(3) Writ Petition No. 453/74 decided on 4-12-1974.\n\n( 4) A.LR. 1974 S.C. 2149.\n\n.... .. -.. 't\" , ... -_-. • . ,;!\"-.:· ~--·.- .......... - ~- -\n\nthe near future, the person sought to be detained has or will have freedom of actior.. If a person therefore is serving a long term of imprisonment or is in jail custody as an undertrial and there is no• immediate or early prospect of his being released on bail or otherwise,. the authority cannot legitimately be satisfied on the basis of his I past history or antecedents that he is likely to indulge in similar prejudicial activities after his release in the distant or indefinite future.\n\nThere must be a proximate nexus between _the preventive action and the past. activity of the detenu on which it is founded.\n\nThis Court has time and again emphasised that where in a habeas corpus petition a Rule Nisi is issued, it is incumbent upon the State to satisf.y the Court that the liberty of the detenue has been taken away strictly in accordance with law and due compliance: with the constitutional requirements of Article 22(5) of the Constitution. The best informed person, therefore, to file the counter-affidavit in response to Rule Nisi is the authority who made the detention order under s. 3 of the Act. In Sheik H, anif v. Stare of West Bengal,(') it was pointed out that the failure to furnish the counter-affidavit of the authority who had passed the order of detention where mala fides or eX:-:.\n\ntraneous considerations are attributed to it, \"may assume the lnpe. of serious infirmity leading the court to declare the detention illegal\".\n\nThis observation equally holds good in a case where the detention order is exposea to the risk of attack on the ground of being a colourable exercise of jurisdiction.\n\nWhile it is true, as an abstract legal proposition, that an order. of preventive detention under the Act may be validly passed against a person in jail custody on the same facts on which he is being proscut ed for a substantive offence in a court, such an order of detention is more easily vulnerable--than the one against a person not in such custody-to the charge that without there being any basis whatever for the satisfaction of the detaining authority, which is a condition precedent for taking action under s.3, the power has been misused as a cloak solely for the purpose of punishing the detenu for the substantive offence for which he was being prosecuted, by subverting and circumventing the penal law and irksome court procedure.\n\nTo make the detention. order immune against such an attack, the detaining authority in its counter-affidavit must particularise all the material circumstances on the basis of which he was satisfied :is to the neces•\n\nsity of the preventive action µespite the detenu being already in jail custody and having tio freedom of action on the. date of the detention order.\n\nIn the present case this has not been done .. No counteraffidavit has been filed by the person who had made the impugned order.\n\nEven the Deputy Secretary who has filed the counter after gathering some information from the record, does not disclose all the material facts from which it could be rationally possible for the detaining authority to predicate that if the impugned order was not made .\n\nagainst the petitioner, though in judicial custody, he could be able to indulge in the prejudicial activities indicated in the impugned order.\n\n(1) A.J.R. 1974 S.C. 679;\n\nThere. is no averment whatever that the charges against the .petitioner were true but the evidence collected against the petitioner was deficient, or, for reasons other than the charge being groundles,, the prosecution of the petitioner for substantive offences was foredoomed to failure.\n\nThe circumstances in which the petitioner was discharg- •.ed by the Judicial Magistrate have not been set out.\n\nA bare state ment that a \"final report\" was submitted by the Police is neither here nor there.\n\nSuch a report.coulJ have been made by the Police in any of the situations referred' to in Sections 169, I 70. and 17 3 of the Code of Criminal Procedure, 1898.\n\nSection 169 envisages two di !ferent situations in which an accused person can be released.\n\nOn~ is when there is not sufficient evidence against him.\n\nThe other is when\n\n'110 reasonable ground or suspicion is revealed by the investigation in regard to his being concerned in the commission of the offence.\n\nSuch a release can be made by the investigating olftcer himself without\n\n~•ending the accused before a Magistrate. Section 170 contemplates .a situation where there is sufficient evidence or reasonable ground to\n\njt:stify the forwarding of the accused under custody for trial to a Magistrate.\n\nIt is s.173 that provides .for a final report, popularly 'known as Polic.e Challan or charge-sheet, which is submitted in the prescribed form after completion of the investigation. The counteraffidavit is silent with regard to the nature of this police report and ihe situation in which the petitioner was discharged.\n\nIt does not say wliether this report had reference to deficiency or sufficiency of eviden- •ce or groundlessness of the charge against the petitioner.\n\nMr. Chatterjee submits that since the petitioner was about 13 days after the impugned order, in fact, discharged by the Judicial Magisirate, it should be presumed that his discharge was due to paucity of evidence and not on account of the charge being baseless.\n\nWe are afraid no such conjecture can be drawn when the lib<:rty <Jf a citizen is at stake. The counter-affidavit apart, we asked Mr. 'Chatterjee if he could show us any official record to support his con\n\ntention.\n\nCounsel was unable to do so.\n\nHe however, submitted that if a sufficiently long adjournment was granted, he would be able to fornish a better and comprehensive affidavit of the officer who had passed the impugned order, clarifying all these obscurities. The case was instituted on a letter dated August 24, 1974 \"from the detenu.\n\nRule Nisi was issued on October 3, 1974 for November 25, 1974. On the latter date no counter affidavit was praduced, and on the request of the State Counsel an adjournment was granted to enable the Resoondents to file the return.\n\nJnspite of this the counter filed is 1leither clear and complete nor by the best informed person. We are therefore, not disposed to put a further premium on this casualness and laxity on the part of the Respondent.\n\nThe grounds of detention relate to two incidents of theft simpliciter in respect of which the petitioner could easilv be prosecuted -under the penal law.\n\nIn the absence of any explanation of appar.ent reason as to why his prosecution for the substantive offences resulted in his discharge and as to whv the making of the preventive order was deemed necessary even while he was in jail custody and had no\n\nfreedom f action, the conclusion is in ;:scapable that the impugned order has been passed mechanically and as a colourable exercise of jurisdiction.\n\nIn the view that it is incumbent on the detaining authority in such cases to disclose to the court all the matf, rial circumstances on which its subjective satisfaction 'is based, we are fortified by the observations of this Court in Noor Chand Sheikh v. State of ' West Bengal,\n\n(supra) wherein A. C. Gupta J. speaking for that Bench said : ·\n\n\"We do not think it can be said that the: fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance which the detaining authority cannot altogeth.er disregard, In the case of Bhut Nath Mate v. State of West Bengal(') this Court observed :\n\n\" .... detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code.\n\nThe immune expedient of throwing into a prison cell one whom the ordinary law would take care of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse.\"\n\nIf, a_s the petitioner has asserted, he was discharged because there was no material against him and not because witnesses were afraid to give evidence against him, there would be apparently no ratiom' basis for the; subjective satisfaction of the detaining authority.\n\nIt is for the detaining authority to say that in spite of the discharge he was satisfied, on some valid material, about the petitioner's complicity in the criminal acts which constitute the basis of the detention order. But, as stated already, the District J\\fagistrate, Maida, who passed the order in this case has not affirmed the affidavit that has been filed on behalf of the State.\n\nApart from the question whether the explanation is satisfactory, the fact remains that in 1his case there is nothing to show that tber.: was any rational material for the subjective satisfaction of the authority who passed the order of detention. Therefore, we find it difficult in the' circumstances of this case to reject the contention that the order of detention was passed mechanically and was a colourable exercise of the power conferred by the Act.\"\n\nThe ratio of Kartik Chandra Guha v. State of West Bengal (supra), cited by Mr. Chatterjee does not advance his case.\n\nThere, the District Magistr<\\te who had passed the detention order had clearly explained and disclosed-en affidavit all the material circumstances on which his satisfaction was based, and further averred :\n\n(1) A.LR. 1974 S.C. 806.\n\n\"Having regard to the activities o:E the detenu as disclosed in the grounds of detention and having regard to the possibility of (his) being enlarged on bail, I was satisfied that th1~\n\ndetenu should be detained under the Act.\"\n\nIn the present case, there is nothing in the counter-affidavit to show that on 21-8-1972, the date of the detention order, the petitioner was about to be released on bail or discharged for deficiency of evidence or difficulty of its production in court. Nor is ther1! any averment that the District Magistrate was otherwise satisfied from credible information received that the charges against the detenu were true.\n\nIn the light of what has been said above, we would quash the impugned order, make the rule absolute and direct the lease of the petitioner.\n\nVM.K.\n\nPetition allowed,", "total_entities": 55, "entities": [{"text": "6\n\nDULAI. ROY", "label": "PETITIONER", "start_char": 3, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "DULAL ROY", "offset_not_found": false}}, {"text": "THE DISTRICT MAGISTRATE, BURDWAN AND ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "THE DISTRICT MAGISTRATE, BURDWAN AND ORS", "offset_not_found": false}}, {"text": "January 15, 1975", "label": "DATE", "start_char": 66, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "January 15, 1975\n\n[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 85, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 108, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Security Act, 1971", "label": "STATUTE", "start_char": 155, "end_char": 173, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 175, "end_char": 184, "source": "regex", "metadata": {"linked_statute_text": "Security Act, 1971", "statute": "Security Act, 1971"}}, {"text": "21-7-72", "label": "DATE", "start_char": 437, "end_char": 444, "source": "ner", "metadata": {"in_sentence": "In connection with two incidents of theft, two cases, one on 21-7-72 and the other on 1-8-72, under sec."}}, {"text": "1-8-72", "label": "DATE", "start_char": 462, "end_char": 468, "source": "ner", "metadata": {"in_sentence": "In connection with two incidents of theft, two cases, one on 21-7-72 and the other on 1-8-72, under sec."}}, {"text": "sec. 379", "label": "PROVISION", "start_char": 476, "end_char": 484, "source": "regex", "metadata": {"linked_statute_text": "Security Act, 1971", "statute": "Security Act, 1971"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 486, "end_char": 496, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "3-8-72", "label": "DATE", "start_char": 670, "end_char": 676, "source": "ner", "metadata": {"in_sentence": "R.\n\nHis complicity was detected in the course of investig'ation..\n\nHe was consequently arrested on 3-8-72 and sent up before the Judicial Magistrate."}}, {"text": "21~8-72", "label": "DATE", "start_char": 724, "end_char": 731, "source": "ner", "metadata": {"in_sentence": "On 21~8-72 when the C petitioner was in custody as an undertria\\, and order of detention was made by the District Magistrate, the respondent, under Sec."}}, {"text": "Sec. 3", "label": "PROVISION", "start_char": 869, "end_char": 875, "source": "regex", "metadata": {"linked_statute_text": "Security Act, 1971", "statute": "Security Act, 1971"}}, {"text": "Maintenance of Intrnal Security Act, 1971", "label": "STATUTE", "start_char": 883, "end_char": 924, "source": "regex", "metadata": {}}, {"text": "3-9-72", "label": "DATE", "start_char": 1188, "end_char": 1194, "source": "ner", "metadata": {"in_sentence": "After further investigation, the police submitted a final report and 1he petitioner was discharged in both the cases on 3-9-72."}}, {"text": "August 24, 1974", "label": "DATE", "start_char": 1354, "end_char": 1369, "source": "ner", "metadata": {"in_sentence": "on the sal):l.e day,, he was taken into custody pursuant to the order of detention which is impugned in the writ petition instituted by him on a letter dated August 24, 1974, from D the jail."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2144, "end_char": 2148, "source": "regex", "metadata": {"statute": null}}, {"text": "4-12-1974", "label": "DATE", "start_char": 4860, "end_char": 4869, "source": "ner", "metadata": {"in_sentence": "453/74 decided on 4-12-1974, and Kartick Chander Guha v. State of West Bengal, A.I.R. 1974 S.C. 2149, referred to."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 5398, "end_char": 5405, "source": "regex", "metadata": {"statute": null}}, {"text": "D A. K. Gupta", "label": "LAWYER", "start_char": 5439, "end_char": 5452, "source": "ner", "metadata": {"in_sentence": "D A. K. Gupta, for the petitioner."}}, {"text": "G. S. Chattujee", "label": "LAWYER", "start_char": 5475, "end_char": 5490, "source": "ner", "metadata": {"in_sentence": "G. S. Chattujee, for respondents."}}, {"text": "SARKARIA J.-Dulal Roy", "label": "JUDGE", "start_char": 5554, "end_char": 5575, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA J.-Dulal Roy, the petitioner challenges the order, dated August 21, 1972, of his detention made by the District Magistrate, Burdwan under s.3 of the Maintenance of Internal Security Act, 1971 (hereinafter called the Act)."}}, {"text": "s.3", "label": "PROVISION", "start_char": 5701, "end_char": 5704, "source": "regex", "metadata": {"statute": null}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 5712, "end_char": 5754, "source": "regex", "metadata": {}}, {"text": "21.7.72", "label": "DATE", "start_char": 6055, "end_char": 6062, "source": "ner", "metadata": {"in_sentence": "On 21.7.72 at I a.m. you wit!\\ your associates Kartick Kannaker and others committed theft of Electric wire from Tower Nos."}}, {"text": "29-7r 72", "label": "DATE", "start_char": 6392, "end_char": 6400, "source": "ner", "metadata": {"in_sentence": "On 29-7r 72 at 2 a.m. you with your associates committed theft of Tower Members from Tower Nos."}}, {"text": "Dewandighi", "label": "GPE", "start_char": 6526, "end_char": 6536, "source": "ner", "metadata": {"in_sentence": "246, 247, 248 situated on the field near Dewandighi, P. S..\n\nBurdwan and by commission of such theft the towers were likely to fall resulting in stoppage of supply electricity which is essential for maintenance of supplies and services to the community, in Calcutta area and its suburbs.\""}}, {"text": "Calcutta area", "label": "GPE", "start_char": 6742, "end_char": 6755, "source": "ner", "metadata": {"in_sentence": "246, 247, 248 situated on the field near Dewandighi, P. S..\n\nBurdwan and by commission of such theft the towers were likely to fall resulting in stoppage of supply electricity which is essential for maintenance of supplies and services to the community, in Calcutta area and its suburbs.\""}}, {"text": "1-8-1972", "label": "DATE", "start_char": 6856, "end_char": 6864, "source": "ner", "metadata": {"in_sentence": "Jn connection with the above thefts, two cases, one on 21-7-72 :and the other on 1-8-1972, under s. 379, Penal Code were registered with the police."}}, {"text": "s. 379", "label": "PROVISION", "start_char": 6872, "end_char": 6878, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6880, "end_char": 6890, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "A. K. Gupta", "label": "LAWYER", "start_char": 7335, "end_char": 7346, "source": "ner", "metadata": {"in_sentence": "Mr. A. K. Gupta appearing as amicus curiae fer the petitioner contends that the impugned order has been passed to subvert the process -of the ordinary penal law, as a colourable exercise of jurisdiction.", "canonical_name": "A. K. Gupta"}}, {"text": "21-8-72", "label": "DATE", "start_char": 7558, "end_char": 7565, "source": "ner", "metadata": {"in_sentence": "It is stressed 1hat on 21-8-72 when the detention order was passed, the petitioner was already in custody as an undertrial."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8073, "end_char": 8077, "source": "regex", "metadata": {"statute": null}}, {"text": "Chatterjee", "label": "LAWYER", "start_char": 8585, "end_char": 8595, "source": "ner", "metadata": {"in_sentence": "In support of these contentions, learned Counsel has relied upon Rameshwar Shaw v. DWrict Magistrate Burdwan( 1) Noor Chand Sheikh v. State of Wes~ Bengal( 2 ) and the recent judgment of this Court in Sri Lal Shaw v. State of West Bengal.(B)\n\nMr. Chatterjee, learned Counsel for the Respondent-Stale submits that the mere fact that the petitioner was on the date of the detention\n\norder in judicial custody did not stand in the way of the detaining authority being satisfied about his propensity to act preinliicially in future after his release from judicial custody.", "canonical_name": "Chatterjee"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 9243, "end_char": 9252, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 9282, "end_char": 9300, "source": "ner", "metadata": {"in_sentence": "Reference, in this connection, has been made to Kartick Chander Guha v. State of West Bengal.(4 )\n\nSection 3 of the Act provides that the Central Government or the State Government may if satisfied with respect to any perwn that with a view to preventing him from acting in any manner prejudicial to ...... , . ("}}, {"text": "s.3", "label": "PROVISION", "start_char": 9777, "end_char": 9780, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 22(5)", "label": "PROVISION", "start_char": 11054, "end_char": 11067, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11233, "end_char": 11237, "source": "regex", "metadata": {"statute": null}}, {"text": "s.3", "label": "PROVISION", "start_char": 12272, "end_char": 12275, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 169", "label": "PROVISION", "start_char": 14026, "end_char": 14038, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 14062, "end_char": 14094, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 169", "label": "PROVISION", "start_char": 14097, "end_char": 14108, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Section 170", "label": "PROVISION", "start_char": 14520, "end_char": 14531, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s.173", "label": "PROVISION", "start_char": 14705, "end_char": 14710, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Chatterjee", "label": "LAWYER", "start_char": 15567, "end_char": 15577, "source": "ner", "metadata": {"in_sentence": "The counter-affidavit apart, we asked Mr. 'Chatterjee if he could show us any official record to support his con\n\ntention.", "canonical_name": "Chatterjee"}}, {"text": "October 3, 1974", "label": "DATE", "start_char": 16003, "end_char": 16018, "source": "ner", "metadata": {"in_sentence": "Rule Nisi was issued on October 3, 1974 for November 25, 1974."}}, {"text": "November 25, 1974", "label": "DATE", "start_char": 16023, "end_char": 16040, "source": "ner", "metadata": {"in_sentence": "Rule Nisi was issued on October 3, 1974 for November 25, 1974."}}, {"text": "A. C. Gupta", "label": "JUDGE", "start_char": 17278, "end_char": 17289, "source": "ner", "metadata": {"in_sentence": "In the view that it is incumbent on the detaining authority in such cases to disclose to the court all the matf, rial circumstances on which its subjective satisfaction 'is based, we are fortified by the observations of this Court in Noor Chand Sheikh v. State of ' West Bengal,\n\n(supra) wherein A. C. Gupta J. speaking for that Bench said : ·\n\n\"We do not think it can be said that the: fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance which the detaining authority cannot altogeth.er disregard, In the case of Bhut Nath Mate v. State of West Bengal(') this Court observed :\n\n\" .... detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code.", "canonical_name": "A. K. Gupta"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 17749, "end_char": 17759, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "District J\\fagistrate, Maida", "label": "COURT", "start_char": 18483, "end_char": 18511, "source": "ner", "metadata": {"in_sentence": "But, as stated already, the District J\\fagistrate, Maida, who passed the order in this case has not affirmed the affidavit that has been filed on behalf of the State."}}, {"text": "21-8-1972", "label": "DATE", "start_char": 19740, "end_char": 19749, "source": "ner", "metadata": {"in_sentence": "In the present case, there is nothing in the counter-affidavit to show that on 21-8-1972, the date of the detention order, the petitioner was about to be released on bail or discharged for deficiency of evidence or difficulty of its production in court."}}, {"text": "VM.K.", "label": "PETITIONER", "start_char": 20219, "end_char": 20224, "source": "ner", "metadata": {"in_sentence": "VM.K.\n\nPetition allowed,"}}]}
{"document_id": "1975_3_193_196_EN", "year": 1975, "text": "BABULAL DAS\n\nTHE S'.f ATE OF WEST BENGAL\n\nJanuary 17, 1975\n\n[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]\n\nMaintnance of ~1uenwl Security Act, 1971 (Act XXVI of 1971), Section 3( l) (a)(11)-Detentron order, whether illegal on account of solitary incident.\n\nThe petitioner has been detained in pursuance of the order of detention'. passed by tbe District Magistrate under sub-s. (l)(a)(ii) of s. 3 of the Maintenance of Internal Security Act, 1971.\n\nThe act imputed to the deten\\l'e is as. follows:\n\n\"That on 16-2-73 between 10..08 and 10-14 hours you along with your other associates, being armed with gun and other wapons com mitted a dacoity In a 3rd class compartment of running train S 11 O Dn. between Habibpur R.S. and Kalinarayanpur Junction R.S. in Ramaghat-Santipur Section and snatched away cash Rs, 30,000 /. from Shri Ashutosh Pal of Calcutta causing bullet injuries to him putting all passengers to fear of death.\" It was contended for the detenu that ?. solitary incident canno't imperrn i11ternal security and therefore, the order is illegal.\n\nRejecting the contention and dismissing the writ .petition.\n\nHELD : One who reads the ground of detention, will be alarmed by the training and planning and sinister preparation of skill and spirit which has. made possible the commission of the act imputed-organised dacoity in a running railway train by an armed gang equipped with fire-arms and putting innocent passengers to Peril to life and property.\n\nSuch action is so manifestly suggestive of desperate daring. organised ganging and habitual proclivity to violenee that. it cannot be held unreasonable to infer therefrom a trendy course of criminal conduct-, a!though intercepted or detected but oncelikely to break public order in a brazen manner and panicking the community by show of force.\n\nIn this view, the petitioner's detention cannot be castigated as illegal. [194F-Gl Obiter : It is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recoure to the parole power under s. 15. Calculated risks. by release for short periods may, perhaps, be a social gain, the beneficient jurisdiction being wisely exercised. [195Fl\n\nORIGINAL JURISDICTION : Writ Petition No. 444 of 1974.\n\nPetition under Art. 32 of the Constitution of India.\n\n0. P. Mcdviya, for the petitioner.\n\nM. M. Kshatriya, and G. C. , Chatterjee, for the respondent.\n\nThe Judgment of the Court was delivered. by\n\nKRISHNA IYER, J.-A single act of outrageous violence in a running train on February 16, 1973 by an armed gang, of which the petitioner was alleged t9 be a member, persuaded the District Magistrate of Nadia to direct his detention under sub-s. (1) (a)(ii) of s. 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter called the MISA, for short). The subsequent statutory requirements have been fulfilled impeccably and the only maior sub-\n\n14- L379 Sup.C 175\n\nSUPREME COURT REPORTS\n\n[1975) 3 S.C.R.\n\nmission of the petitioner is that on merit~, he is not guilty, that a case charge-sheeted against him has ended in a discharge and that a single incident is insufficient to constitute 'a. stream of tendency' warranting preventive detention.\n\nM.ost of the submisions urged have no force.\n\nThe fact that the petitioner was discharged by a court for the :same crime does no bear o:i. the power to detain, nor are we impressed with the other arguments urged before us. Learned counsel Sri Malviya, appearing amicus curiae, strenuously contended that one swallow does not make a summer and likewise a solitary incident cannot imperil maintenance of internal security and so the order is bad. He relied on certain rulings of this Court and, rightly so.\n\nThis Court has been vigilant to see that isolated offences are not exploited by executive authorities for clamping down preventive d1ten\n\ntion, insouciantly to by-pass the normal judicial processes. But there is one exceptional category of cases where an only dangerous deviance may itself demonstrate its potentiality for continuing criminality and indicate previous practice, experiment and expertise. In such a narrow category oj' causes it is difficult to predicate abuse of power or absence of applicati-On of mind by the authority if preventive detention is directed solely on one specialised crime.\n\nIn the present case the act imputed to the detenu is set out in the detention order thus :\n\n\"That on 16-2-73 between 10-08 and 10-14 hours you, along with your other associates, being armed with gun and other weapons committed a dacoity in a 3rd class compartment of running train S. 110 Dn. between Habibpur R.S. and Kalinarayanpur Junction R. S. in Ramaghat-Santipur Section : and snatched away cash Rs. 30,000/- from Shri Ashutosh\n\nPal of Calcutta causing bullet injuries. to him putting all passengers to fear of death .. \"\n\nHe who runs a.nd reads-if the statement were true and its veraciity is unavailable for judicial scrutiny-will be alarmed by the training and planning and sinister preparation of skill and spirit which has made possible the commission of the act imputed-organized dacoity in a running railway train by an armed gang equipped with firearms and putting innocent passengers to peril to life and property. Such action is so manifestly suggestive of desperate daring, organized ganging .and habitual proclivity to violence thatit cannot be held unreasonable to infer therefrom a trendy course of criminal conduct-although inter- ;:epted or detected but once-likely to break public order in a brazen manner and panicking the community by show of force. We arc not concerned with the merits of the alleged offence, since that is assigned by the Legislature t9 the_ subjective satisfiaction of the authority. In this view, the petitioner's detention cannot, in the present case, be castigatetl as illegal, since we regard it as exceptional.\n\n. While disch.arging the rue issued and dismissing the petition, we wish to emphasize_ that s. 15 1s otlten Jost sight of by the Government in\n\nBABULAL v. WEST BENGAL (Krishna Iyer, J.) 195\n\nsuch situations, as long term preventive detentions can be self-defating or criminally counter-productive. Section 15 reads:\n\n\"15. Temporary release of persons detained.- ( 1) The appropriate Government may, at any time, direct that iiny person detained in pursuance of a detention order may be released for any specified _ period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.\n\n(2) In directing the release of any person under subsection (1), the appropriate Government may require him to enter into a bond with or without sureties for the due .observance of the conditions specified in the direction.\n\n(3~ Any person released under sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his release, as the case may be. ( 4) If any person fails without sufficient cause to surrender himself in the manner spedfiect in sub-section (3), he shall be. punishable with imprisonment for a term may exted to two years, or with fine, or with both.\n\n(5) Hi any person released under sub-section\n\n(1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof.\"\n\nWe consider that it is fair that persons kept incarcerated andembittered without trial should be given some chance to reform themselves by reasonable recourse to the parole power under s. 15. Calculated risks, by release for short periods may, perhaps, be a social gain, the beneficient jurisdiction being wisely exercised.\n\nIn this context we would recall the observations made by this Court in Anil Dey v. Staie of West Bengal. ( 1)\n\n\"The petition, therefore, deserves to be dismissed. However, the fact remains that the petitioner was arrested in September 1972, and has been in deterrent incarceration for nearly a year and half. Prolonged imprisonment without trial alienates the individual against society and makes him a vengeful enemy when he ultimately emerges from the prison cell.\n\nIndeed~ it is a serious injury inflicted on an individual by the State which can be justified as a measure of social defence\n\no:ily in extreme circumstances. Bnt to jail a man on subjective satisfaction of possible prejudicial activity and to forget. about him after the statutory formalities have been perform-\n\n( I) A.I.R. 1974 S.C. 832.\n\n196 SUP!l_EME COURT REPORTS [19751 3 s.c.R.\n\ned is not fair to the constitutional guarantees. It is appropriate A tor a democratic government not merely to confine preventive dett:ntion to serious cases but also to review. periodically the need fur the continuance of the incarceration. The rule of law and public conscience must be respected to the max:imum extent risk-taking permits, and we dismiss the present petition with the hopeful thought that the retitioner and others like him will _not languish in prison cells for a day 8 longer than the administrator thinks is absolutely necessary for the c:ritical safety of society.\"\n\nThe State may be reminded, in its own interests, of this Court's anxious admonition in Gama( 1) :\n\n\"If the detaining authority takes the chance of conviction and, wh1!n the court verdict goes against it, falls back on it:; detention power to punish one whom the Court would not convict, it is an abuse and virtual nullificatio11 of the judicia1l process. !fl honestly finding a dangerous person getting away with it by over-awing witneses or concealing the commission devcrly, an authority thinks, on the material before:\n\nhim that there is likelihood ofl and need to interdict public disorder at his instance he may validly direct detention. The distinction is fine but real.\"\n\nWe hope the humanist mandate in s. 15 of the MISA will not rust in the statute book but will be used by Government to humanise, by gradual assimilation into society, those who, with blood-shot eyes., hate and intimidate their fellow men. The rare use of this provision suggests tha~ the compassion and conscience of the law must be actively shared by the men who operate the machine from executive cells ..\n\nV.M.K.\n\nPetition dismissed.\n\n( 1) [1974] 4 s.c.c. 530, 534,", "total_entities": 33, "entities": [{"text": "DAS\n\nTHE S'.f ATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 8, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "January 17, 1975", "label": "DATE", "start_char": 42, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "BABULAL DAS\n\nTHE S'.f ATE OF WEST BENGAL\n\nJanuary 17, 1975\n\n[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 61, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 84, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Security Act, 1971", "label": "STATUTE", "start_char": 128, "end_char": 146, "source": "regex", "metadata": {}}, {"text": "Section 3( l)", "label": "PROVISION", "start_char": 167, "end_char": 180, "source": "regex", "metadata": {"linked_statute_text": "Security Act, 1971", "statute": "Security Act, 1971"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 391, "end_char": 395, "source": "regex", "metadata": {"linked_statute_text": "Security Act, 1971", "statute": "Security Act, 1971"}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 403, "end_char": 445, "source": "regex", "metadata": {}}, {"text": "16-2-73", "label": "DATE", "start_char": 507, "end_char": 514, "source": "ner", "metadata": {"in_sentence": "follows:\n\n\"That on 16-2-73 between 10..08 and 10-14 hours you along with your other associates, being armed with gun and other wapons com mitted a dacoity In a 3rd class compartment of running train S 11 O Dn."}}, {"text": "S 11", "label": "PROVISION", "start_char": 687, "end_char": 691, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "Kalinarayanpur Junction R.S.", "label": "GPE", "start_char": 724, "end_char": 752, "source": "ner", "metadata": {"in_sentence": "between Habibpur R.S. and Kalinarayanpur Junction R.S. in Ramaghat-Santipur Section and snatched away cash Rs, 30,000 /. from Shri Ashutosh Pal of Calcutta causing bullet injuries to him putting all passengers to fear of death.\""}}, {"text": "Ramaghat-Santipur", "label": "GPE", "start_char": 756, "end_char": 773, "source": "ner", "metadata": {"in_sentence": "between Habibpur R.S. and Kalinarayanpur Junction R.S. in Ramaghat-Santipur Section and snatched away cash Rs, 30,000 /. from Shri Ashutosh Pal of Calcutta causing bullet injuries to him putting all passengers to fear of death.\""}}, {"text": "Ashutosh Pal", "label": "OTHER_PERSON", "start_char": 829, "end_char": 841, "source": "ner", "metadata": {"in_sentence": "between Habibpur R.S. and Kalinarayanpur Junction R.S. in Ramaghat-Santipur Section and snatched away cash Rs, 30,000 /. from Shri Ashutosh Pal of Calcutta causing bullet injuries to him putting all passengers to fear of death.\"", "canonical_name": "Ashutosh Pal"}}, {"text": "Calcutta", "label": "GPE", "start_char": 845, "end_char": 853, "source": "ner", "metadata": {"in_sentence": "between Habibpur R.S. and Kalinarayanpur Junction R.S. in Ramaghat-Santipur Section and snatched away cash Rs, 30,000 /. from Shri Ashutosh Pal of Calcutta causing bullet injuries to him putting all passengers to fear of death.\""}}, {"text": "s. 15", "label": "PROVISION", "start_char": 2069, "end_char": 2074, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2287, "end_char": 2294, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 2302, "end_char": 2323, "source": "regex", "metadata": {}}, {"text": "P. Mcdviya", "label": "LAWYER", "start_char": 2329, "end_char": 2339, "source": "ner", "metadata": {"in_sentence": "P. Mcdviya, for the petitioner."}}, {"text": "M. M. Kshatriya", "label": "LAWYER", "start_char": 2362, "end_char": 2377, "source": "ner", "metadata": {"in_sentence": "M. M. Kshatriya, and G. C. , Chatterjee, for the respondent."}}, {"text": "G. C. , Chatterjee", "label": "LAWYER", "start_char": 2383, "end_char": 2401, "source": "ner", "metadata": {"in_sentence": "M. M. Kshatriya, and G. C. , Chatterjee, for the respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 2469, "end_char": 2481, "source": "ner", "metadata": {"in_sentence": "by\n\nKRISHNA IYER, J.-A single act of outrageous violence in a running train on February 16, 1973 by an armed gang, of which the petitioner was alleged t9 be a member, persuaded the District Magistrate of Nadia to direct his detention under sub-s. (1) (a)(ii) of s. 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter called the MISA, for short)."}}, {"text": "District Magistrate of Nadia", "label": "COURT", "start_char": 2646, "end_char": 2674, "source": "ner", "metadata": {"in_sentence": "by\n\nKRISHNA IYER, J.-A single act of outrageous violence in a running train on February 16, 1973 by an armed gang, of which the petitioner was alleged t9 be a member, persuaded the District Magistrate of Nadia to direct his detention under sub-s. (1) (a)(ii) of s. 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter called the MISA, for short)."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2727, "end_char": 2731, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 2739, "end_char": 2781, "source": "regex", "metadata": {}}, {"text": "Malviya", "label": "OTHER_PERSON", "start_char": 3482, "end_char": 3489, "source": "ner", "metadata": {"in_sentence": "Learned counsel Sri Malviya, appearing amicus curiae, strenuously contended that one swallow does not make a summer and likewise a solitary incident cannot imperil maintenance of internal security and so the order is bad."}}, {"text": "S. 110", "label": "PROVISION", "start_char": 4633, "end_char": 4639, "source": "regex", "metadata": {"statute": null}}, {"text": "Ashutosh", "label": "OTHER_PERSON", "start_char": 4777, "end_char": 4785, "source": "ner", "metadata": {"in_sentence": "30,000/- from Shri Ashutosh\n\nPal of Calcutta causing bullet injuries.", "canonical_name": "Ashutosh Pal"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 6006, "end_char": 6011, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 6212, "end_char": 6222, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 7704, "end_char": 7709, "source": "regex", "metadata": {"statute": null}}, {"text": "Gama", "label": "JUDGE", "start_char": 9375, "end_char": 9379, "source": "ner", "metadata": {"in_sentence": "The State may be reminded, in its own interests, of this Court's anxious admonition in Gama( 1) :\n\n\"If the detaining authority takes the chance of conviction and, wh1!n the court verdict goes against it, falls back on it:; detention power to punish one whom the Court would not convict, it is an abuse and virtual nullificatio11 of the judicia1l process. !"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 9999, "end_char": 10004, "source": "regex", "metadata": {"statute": null}}, {"text": "V.M.K.", "label": "PETITIONER", "start_char": 10375, "end_char": 10381, "source": "ner", "metadata": {"in_sentence": "The rare use of this provision suggests tha~ the compassion and conscience of the law must be actively shared by the men who operate the machine from executive cells ..\n\nV.M.K.\n\nPetition dismissed."}}]}
{"document_id": "1975_3_197_200_EN", "year": 1975, "text": "GOPAL BAURI v.\n\nTHE DISTRICT MAGISTRATE BURDWAN AND OTHERS\n\nJanuary 17, 1975 B [V. R. KRISHNA IYl!R, P. K. GOSWAMI AND R. R. SARKARIA, JI.]\n\nMe1/111e1u111ce of /11/trnal Security Act, (26 of 1971), Stctlon 3(2) read with s11bscctlo11 ( 1 )-Recovery of tlie stolen articles from one of thr dettnu's as.vo. elates weiglllng wi1/I District Magistrau i11 making the impugned order-Omi~.1/011 to disclose t/1e name of associate 111 the grounds1 whether amo1mts de11la'/ of opportunity to the petitioner to represent agal11s1 111e order of detention.\n\nThe petitioner was arrested on March 26, 1973, in connection with two inci dents of theft said to have been committed by him on 20th and 21st March, 1973.\n\nHe was released by the Court on bail on the same day. The police, however, in due course submitted the final report and the accused was.discharged on July 22, 1974.\n\nBut .the respondent made the impugned order of detention on June 25, 1973 under sub-section (1) read with sub-section (2) of section 3 of the Main tcnance of Internal Security Act, 1971. The order was made in order to prevent the petitioner from 11cting in a manner prejudicial to the maintenance of su]iplies and services essential to the community. The petitioner was detained in pursuance of that order on July 13, 1973. The grounds which have been furnished to the detenu describe the occurrence of two successive days, namely 20th and 21st March, 1973. In the counter-affidavit submitted by the respondent it Is stated thaf both the acts stated in the grounds of detention were committed by the de tenu along with his associates in quick succession In the course of these successive days. . Allowing the petition under Article 32 challenging the order of detention,\n\nHELD : The '\\three\" successive incidents may include reference to the recovery of some stolen ball bearings from the possession of \"one of your associates on 23-3-1973\". Even so, it was absolutely necessary to communicate to the detenu the name ctf the particular associate from whose possession the recovery of the stolen articles, the subi.ect matter of the thefts disclosed in the two grounds, was made. Since the sin of the recovery from \"one of your associates\" visits the detenu against whom a prejudicial inference has been made by the detaining authority resulting in his subjective satisfaction in making the impugned order, omission to disclose the name of the associate in the grounds amounts to denial of an effective opportunity to the petitioner to represent against the order. [l99BE)\n\nIn this case either the District Magistrate did not know .the name of the associate for which alone it was not possible for him to. disclose it to the detenu or knowing the same he. has refrained from furnishing it to tht: detenu. In the first case bis subjective satisfaction was influenced by an unreal and non-existent material circumstance, the Diatrict Magistrate not having considered whether the associate could be in fact an associate of the detenu. In the second case a reason able opportunity has not been given to the detenu to know a very relevant and material particular in the grounds to afford making an effective representation against the order. In either case the order will be reckoned as invalid under the law. [199H]\n\nORIGINAL JURISDICTION: Writ Petition No. 406 of 1974.\n\n(Under Article 32 of the Constitution).\n\nH M. Qamaruddin, A.C., for the Petitioner.\n\nProdvot Kumar Chakravarti, and G. S. Chatterjee of Sukumar Basu & .Co. for the respondents.\n\nSUPREME COURT REPORTS [1975j 3 s.c, R.\n\nThe Judgment of the Court was delivered by\n\nGosWAMI, J.-This application for a writ of habeas corpus under Article 32 of the Constitution arises out of an order of detention Jitadc on June 25, 1973, by the District Magistrate Burdwan under subsection {1) read with sub-section (2) of section 3 of the Maintenance of Internal Se<:urity Act, 1971. The order was made in order to prevent the petitioner from acting in a manner prejudicial to the maintenance of supplies and service~ essential to the community. The groumts on which the said order is based are as follows :-\n\n\" (1) On 20-3-73 night at about 01.00 hrs. you with your other associates committed theft of ball bearings and wheels of w~ bucket carriage& of the rope-way lines\n\nmar Harishpur village and the supply of sand to the collieries was suspended. By such act you adversely affected the raising of supply of coal from the collieriies which is essential for human consumption and for the maintenance of supplies and services essential to the community.\n\n(2) On 21-3-73 at about 03.00 hrs. you with your other\n\na11sociates committed theft of ball bearings and wheels: of the bucket carriages from the rope-way lines at Palashbon village causing sension of supply of sand to the collieries. Some stolen ball bearings were recoveredfrom the possession of one of youir\n\nassociates on 23-3-73. The resultant effect was that coal which is essential commotlities cannot be processed out of the mines for human and other consumption and for the maintenance of supplies and services essential to the community.\" The petitioner was arrested by the police in connection with the aforesaid two incidents on March 26, 1973 and was released by the court on bail on the same day. The police, however, in due coum~ submitted the fi11al report on November 25, 1973 and the accused was discharged 011 July 22, 1974.\n\nAs seen earlier the impugned oraer of detention was made. on June 25, 1973 and the petitioner was detained in pursuance of that order on July 13, 1973. It is submitted by Mr. Quamruddin, foarne~ counsel appearing as amicus curiae that based on the grounds as given, there is an inortlinate delay in making the detention order. Se1ondly\n\nhe submits that the grounds are vague inasmuch as there is no mention of the number of ball bearings nor of the number of associates in the grounds. We are not impressed by these submissions in this case.\n\nWe. however, find from paragraph 5 of the counter-affidav'it submitted by the Deputy Secretary, Ministry of Commerce, Government of India, who was the District Magistrate of Burdwan at the relevant time the foUowing statement:-: \"I further say that having regard to the nature of the act~ committed by the detenu (as disclosed in the grounds fu:r-\n\nGOPAL BAUR! v. DIST. MAGISTRATE (Goswami, J.) 199\n\nnish4{ to the detenu), I was bona fide satisfied that the said acts were sufficient for making the detention ord.er. Both the acts stated in the grounds of detention were committd\n\nby the etenu along with his associates in quick succession in course of three successive days ... \"\n\nThe grounds which have been furnished to the detenu describe the occurrence of two successive days, namely, 20th and 21st March, 1973 Even giving some allowance to the affidavit of the District Magistrate it may be t.hat the \"three\" successive incidents may include reference to the recovery of some stolen ball bearings from the possession of \"one of your associates on 23-3-73'' mentioned in the second ground.\n\nEven so, it was absolutely necesary to communicate to the detenu the name of the particular associate from whose possession the recovery of the stolen articles, the subject matter of the thefts disclosed in the two grounds, was made. Since it is clear. from the District Magistrate' s affidavit that the recovery of the stolen articles from one of the detenu's associates weighed with him in making the impugn~ order, the petitioner should have been apprised of that material fact in a specific manner the least of which was to furnish the name of the associate. It may be that omission to give names of indeterminate associates who run away after committing illegal acts at dead of night may not be of consequence but here the name of the associate from whom the stolen baU_l:>earings were recovered was a definite fact known to the authority in oi:der to connect the detenu with the particular thefts. Since the sin of the recovery from \"one of your associates\" visits the dctenu against whom a prejuijicial inference has been made by the detaining authority resulting in his subjective satisfaction in making the impugned order, omission to disclose the name of the associate in the grounds amounts to denial of an effective opportunity to the petitioner to represent against the order. For this infirmity in the grounds the petitioner is de.nied the constitutional protection under article 22 ( 5) of the Constitution.\n\nF It is submitteti on behalf of theJesponderrts that even a, disclosure .of the name of the associate woul have evoked the same plea of denial by the detenu and, therefore,- would be inconsequential. We are unable to accept such a submission. In case of preventive detention the duty to furnish the relevant material particulars in the grounds which reasonably influence the subjective satisfaction in making the\n\norder of detention is not to be judged by what the answer the deu:nu\n\nwill make but whether the detenu will be able to make an effective representation against the order. The possibility or probability of detenu's ultimate denial of the allegations is not relevant in that context.\n\nIn this case either the District Magistrate did not know the name of the associate for which alone 1t was not possible for him to disclose it to the detenu or knowing the same he has refrained from furnishing it to the detenu.\n\nIn the first case his subjective satisfaction was influenced by an unreal and non-existent material circumstances, the District Magistrate not having considered whether the associate could / (\n\n200 SUUBMB C01JllT llBPORTS [1975) 3 s.c.R.\n\nbo in fact at11 associate of the detenu. In the second case a reasonable A opportunity has not been given to the deteo.u to know a very ri'levant and material particular in the grounds to afford making an e!l!ective representation aaainst the order.\n\nIn either case the order will be reckoned as invalid under the law.\n\nIn the result the impuaned order is invalid and the same is 8 quashed. 1'he rule nisi is made absolute and the petitioner s:llall be released from detention forthwith. . . ·\n\nV.M.K.\n\nPetition allowed.", "total_entities": 29, "entities": [{"text": "GOPAL BAURI", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "GOPAL BAURI", "offset_not_found": false}}, {"text": "THE DISTRICT MAGISTRATE BURDWAN AND OTHERS", "label": "RESPONDENT", "start_char": 16, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "THE DISTRICT MAGISTRATE BURDWAN AND OTHERS", "offset_not_found": false}}, {"text": "January 17, 1975", "label": "DATE", "start_char": 60, "end_char": 76, "source": "ner", "metadata": {"in_sentence": "GOPAL BAURI v.\n\nTHE DISTRICT MAGISTRATE BURDWAN AND OTHERS\n\nJanuary 17, 1975 B [V. R. KRISHNA IYl!R, P. K. GOSWAMI AND R. R. SARKARIA, JI.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 101, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "R. R. SARKARIA", "label": "JUDGE", "start_char": 119, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "s11", "label": "PROVISION", "start_char": 221, "end_char": 224, "source": "regex", "metadata": {"statute": null}}, {"text": "20th and 21st March, 1973", "label": "DATE", "start_char": 674, "end_char": 699, "source": "ner", "metadata": {"in_sentence": "The petitioner was arrested on March 26, 1973, in connection with two inci dents of theft said to have been committed by him on 20th and 21st March, 1973."}}, {"text": "July 22, 1974", "label": "DATE", "start_char": 852, "end_char": 865, "source": "ner", "metadata": {"in_sentence": "The police, however, in due course submitted the final report and the accused was.discharged on July 22, 1974."}}, {"text": "section 3", "label": "PROVISION", "start_char": 993, "end_char": 1002, "source": "regex", "metadata": {"statute": null}}, {"text": "Main tcnance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 1010, "end_char": 1053, "source": "regex", "metadata": {}}, {"text": "Article 32", "label": "PROVISION", "start_char": 1692, "end_char": 1702, "source": "regex", "metadata": {"linked_statute_text": "the Main tcnance of Internal Security Act, 1971", "statute": "the Main tcnance of Internal Security Act, 1971"}}, {"text": "23-3-1973", "label": "DATE", "start_char": 1898, "end_char": 1907, "source": "ner", "metadata": {"in_sentence": "Allowing the petition under Article 32 challenging the order of detention,\n\nHELD : The '\\three\" successive incidents may include reference to the recovery of some stolen ball bearings from the possession of \"one of your associates on 23-3-1973\"."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3342, "end_char": 3352, "source": "regex", "metadata": {"statute": null}}, {"text": "H M. Qamaruddin", "label": "LAWYER", "start_char": 3376, "end_char": 3391, "source": "ner", "metadata": {"in_sentence": "H M. Qamaruddin, A.C., for the Petitioner."}}, {"text": "Prodvot Kumar Chakravarti", "label": "LAWYER", "start_char": 3420, "end_char": 3445, "source": "ner", "metadata": {"in_sentence": "Prodvot Kumar Chakravarti, and G. S. Chatterjee of Sukumar Basu & .Co."}}, {"text": "G. S. Chatterjee", "label": "OTHER_PERSON", "start_char": 3451, "end_char": 3467, "source": "ner", "metadata": {"in_sentence": "Prodvot Kumar Chakravarti, and G. S. Chatterjee of Sukumar Basu & .Co."}}, {"text": "GosWAMI", "label": "JUDGE", "start_char": 3597, "end_char": 3604, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS [1975j 3 s.c, R.\n\nThe Judgment of the Court was delivered by\n\nGosWAMI, J.-This application for a writ of habeas corpus under Article 32 of the Constitution arises out of an order of detention Jitadc on June 25, 1973, by the District Magistrate Burdwan under subsection {1) read with sub-section (2) of section 3 of the Maintenance of Internal Se<:urity Act, 1971."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3660, "end_char": 3670, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 3837, "end_char": 3846, "source": "regex", "metadata": {"statute": null}}, {"text": "20-3-73", "label": "DATE", "start_char": 4134, "end_char": 4141, "source": "ner", "metadata": {"in_sentence": "The groumts on which the said order is based are as follows :-\n\n\" (1) On 20-3-73 night at about 01.00 hrs."}}, {"text": "mar Harishpur village", "label": "GPE", "start_char": 4289, "end_char": 4310, "source": "ner", "metadata": {"in_sentence": "you with your other associates committed theft of ball bearings and wheels of w~ bucket carriage& of the rope-way lines\n\nmar Harishpur village and the supply of sand to the collieries was suspended."}}, {"text": "21-3-73", "label": "DATE", "start_char": 4579, "end_char": 4586, "source": "ner", "metadata": {"in_sentence": "(2) On 21-3-73 at about 03.00 hrs."}}, {"text": "Palashbon village", "label": "GPE", "start_char": 4736, "end_char": 4753, "source": "ner", "metadata": {"in_sentence": "you with your other\n\na11sociates committed theft of ball bearings and wheels: of the bucket carriages from the rope-way lines at Palashbon village causing sension of supply of sand to the collieries."}}, {"text": "23-3-73", "label": "DATE", "start_char": 4898, "end_char": 4905, "source": "ner", "metadata": {"in_sentence": "Some stolen ball bearings were recoveredfrom the possession of one of youir\n\nassociates on 23-3-73."}}, {"text": "November 25, 1973", "label": "DATE", "start_char": 5348, "end_char": 5365, "source": "ner", "metadata": {"in_sentence": "The police, however, in due coum~ submitted the fi11al report on November 25, 1973 and the accused was discharged 011 July 22, 1974."}}, {"text": "June 25, 1973", "label": "DATE", "start_char": 5478, "end_char": 5491, "source": "ner", "metadata": {"in_sentence": "on June 25, 1973 and the petitioner was detained in pursuance of that order on July 13, 1973."}}, {"text": "July 13, 1973", "label": "DATE", "start_char": 5554, "end_char": 5567, "source": "ner", "metadata": {"in_sentence": "on June 25, 1973 and the petitioner was detained in pursuance of that order on July 13, 1973."}}, {"text": "Quamruddin", "label": "OTHER_PERSON", "start_char": 5592, "end_char": 5602, "source": "ner", "metadata": {"in_sentence": "It is submitted by Mr. Quamruddin, foarne~ counsel appearing as amicus curiae that based on the grounds as given, there is an inortlinate delay in making the detention order."}}, {"text": "article 22", "label": "PROVISION", "start_char": 8442, "end_char": 8452, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_201_210_EN", "year": 1975, "text": "P. C. SETHI & ORS.\n\nUNION OF INDIA & ORS. January 17, 1975\n\n[M. H. BEG, V. R. KRISHNA IYER AND P .. K. GOSWAMI, JJ.]\n\nConstitution of India, Art. 16-Civil Service-Ctntral Secretariat Service (Re organisation and Reinforcement) Scheme-Home Ministry circular dated 22nd June, 1949-Whether subsequent direct recruits can supersede tliose who . are absorbed in service earlier-Delay and /aches. . .\n\nPetitioners are Assistants in Grade IV Class II of the Central Secretariat Service. Petitioners were appointed as Assistants during the period 1944-54. The respondent Union of India appointed a large number of persons as Assistants by direct recri.itment and many of those appointed after the petitioners have been confirmed in the grade and have since been promoted to the next higher grade of Section Officer. In 1948, the Government framed a Scheme known as the Central Secretariat Service (Reorganisation & Reinforcement) Scheme. Thereafter instructions for the initial constitution of the Assistants Grade were issued In March, 1949. Thereafter, the Ministry of Home Affairs issued Office Memorandum dated June 22, 1949, dealing with ti:~ qu.estion of seniority. Para 2 of the office memorandum provided that the rule of seniority on the basis of length of service should be takeq as a model in framing the rules of seniority for other Services. The main question to be determined in the present petition is whether the office memorandum of June, 1949 is applicable in determining seniority of the petitioners.· . ' HELD. Office Memorandum of June 22, 1949 is no bar to the Government making separate provision for the mode of constitution and future maintenance of the service of Assistants. The classification made in the instructions cannot be characterised as unreasonable. There is no discrimination amongst equals nor any arbitrary exercise of powers by the Government. In the absee of any statutory rules prior to the Central Secretariat Service Rules 1962 it was open to G, overnment in exerc.ise .of its executive .PO'Yer to issue adinistrative instructio'!s with regard to constitution and reorganisation of the. Service as long as there IS no violation of ArtS. 14 and 16 of the Constitution. The instructions of the Government issued from time to time do not violate any fundamental rights of the petitioners. In the present petition, the Civil List of 1962 has not been challenged as invalid. Only office Memorandum of 1971 is challenged. The said Memoran dum of 1971 is based on the civil list of 1962. The validity of which is not specifically challenged in the petition. There is no infirmity in the Memorandum of 1971 simply because it is not in conformity with the Memorandum of 22-6-1949.\n\n[207H; 208B-EJ\n\nHELD FURTHER : Once the temporary Assistants have been absorbed in the Service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruitment if appointed after the farmer's absorption in the service. It appears that the quota of direct recruitment was not enforced and perhaps for good reasons. Administrative in structions if not carried into effect for obvious and good reasons cannot confer a right upon entrants on later recruitment to supersede the claims of others already absorbed in the service in. accordance with the appropriate and valid instruction.,, Nothing has been brought to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same Rtade of service by direct recruitment. It could if 11ermitted be violative of Art: 16 of the Constitution. The direct recruits who are appointed after the absorption of the Assistants in conformity with the instructions on tile initial constitution or in the regular temporary establishment. shall rank junior to the ltter. [209B; 0]\n\nHELD FUR.'I'HU : Jn view of the entire circumstances of the case and the hopes held out by the Government from me to time we are not prepared to dismiss the petition on account Qf delay and !aches. [210B]\n\nORIGINAL JuR1s01cr10N : Writ Petition No. 163 of 1972.\n\nPetition under Art. 32 of the Constitution of India.\n\nS. S. Javali and B. P. Singh, for the petitioners.\n\nM. N. Phadke and R. N. Sachthey, for respondent No. L\n\nP. P. Rao and A. K. Ganguli, for respondent No. 2 & the intl.!rveners.\n\nT. V. S. Narasimhachari, for respondent Nos. 27-32.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.-The petitioners are Assistants in Grade IV (Class II Non-gazetted) of the Central Secretariat Service (briefly the\n\nServic~) and have been working in the various Ministries of the Ooverr.ment of India. They were appointed as Assistants during tire period\n\nbetween 1944 and 1954. Their next promotional post is now that of Section Officer (Class II, Gaz.etted). They have raised in this Writ Petition the question of their seniority and challenged the validity of the Office Memodandum of 7th September,.1971, issued by the first Respondent fixing zones for promotion to the grade of Section Officer on the basis or ranks assigned in the Civil List of 1962 for the grade of Assistant on the ground of being in contravention of the Office Memorandum of June 22, 1949, of the Ministry of Home Affairs.\n\nThey also challenge the validity of rule 18(1) of the Central Secre tariat Service Rules, 1962 (briefly the Rules) in so far as it is con strued to protect the seniority determined prior to the commencement of the said Rule fa violation of the Office Memorandum of Ju11c 22,\n\n1949. Th~ petitioners allege that the Government havoe not fo:l!owed any consistent principle or rule in regulating the seniority of the Assistants. It: is said the first Respondent prepared lists of ofti<:ers in the Assistant's Grade by different combination of classifications, such as initial constitution, regular temporary establishments, nontest cate gory, first test category, second test category, hard cases category, displaced persons, direct recruits, etc. and effected promotions in utter disregard of the dates of confirmation. The first Respondent appointed a large number of persons as Assistants by direct recruitment and many of those appointed after the petitioners have been confirmed in the grade and have since bee.n promoted to the next higher grade of Section Officer. Acording to the petitioners gla.ring instance of arbitrary action is the assignment of en bloc seniority to persons appointed by direct recruitment in 1956 exceeding 800 in number who have been assigned seniority over all the petitioners appointed as Assistants long prior thereto. Such instances' were there also in 1958 and 1959.\n\nIn retrospect, on July 19, 1948, the Government.framed a scheme known as the Central Secretariat Service (Re-organisation and Reinforcement) Scheme (briefly the Scheme). It constituted four grades in the Service, namely, Under Secretary (Grade I), Superintiendent (Grade ID. Assistant Superintendent (Grade III) and Assistant (Grade IV). The Scheme was, owever, not implemented until November 1951. Under para 15 of the Scheme, the authorised 1iermanent strength of the Service will be fixed by the Ministry of Home Affairs with th~ concurrence of the Ministry of Finance. It was recog-\n\n' 1'\n\nP. c. SETHl v, UNlON (Goswami, J.) 2-03\n\nnised therein that \"it is essential' from the poin~ of Yiew alike of economy and efficiency , that as large. a proportion as possible of the members of the Service should be recruited on a permanent basis. A flexible system of fixation of Authorised Permanent Strength will therefore be followed. . . . should be revised once in every three years\". It is also mentioned in the same paragraph that \"if as a result of any such triennial refixation, the Authorised Permanent Strength is reduced,. effect should given to such reduction by equivalent reduction in the following triennium of the rate of direct recruitment to the Service and' :Promotions from grade to grade .... \". It is also particularly men-·\n\ntioned in the said paragraph that \"the rights of members appointed to the Service on a permanent basis will not be prejudiced by any revision of permanent strength, effected subsequent to such appointment\".\n\nUnder Paragraph 19 of the Scheme, after the Authorised Permanent Strength of the Service is determined, the initial coustltution of the Service will be undertaken, and, inter alia, appointments to Grade IV will be completed within thirty months. Under para 25 of the: Scheme, the mode of constitution of Grade IV is as follows :-\n\n\"Assistants who have already been appointed on a permanent basis and are not appointed . to a higher grade in the Service as reorganised will be appointed permanently to Grade IV first. The remaining vacancies in Grade IV will be filled by persons who are 'qualified' in terms of the Ministry of Home Affairs bffice Memorandum No. ~3/20/48-NGS, dated the 25th May, 1948. A'.s contemplated in that Memorandum two tests will be held by the Federal Public Servi~ Commission in which the temporary 'qualifiables' as defin\"d therein will be enabled to qualify for permanent absorption in Grade IV. In the first of two ests only qualifiable tempcrary Assistants will be allowed to appear. H \\Jl'.OUld then be considered with reference to the number of vacancies to be filled as well as the number of qualifiable candidates remain ing whether, and if so Jo what extent, the. second test should be thown open partialy to the outsiders also\". .\n\nParagraph 26 in Part V of the Scheme dealing with future maintenance of the Service, provitles, i111er alia, for the recruitment as follows:-\n\n\"Permanent vacancies in the Authorised Permanent Strength of this Grade will be filled in two ways. One out of every 4 vacancies will be filled, Ministry-wise, by promotion from the Ministerial Grades below the rank of Assistant. The remaining 3 vacancies will be poofod for the Central Secretariat as a whole and filled from among the successful candidates at the competitive Ministerial Services Examination held by the Federal Public Service Commission, The qualifications for admission to this examination will continue to be graduates in the age-groups 20-22 with relaxation of age limit for the Scheduled Castes\".\n\n/ \\\n\nSUP~EME COURT REPORTS\n\n[197 5} 3 S.C:.R0\n\nWith regard to promotion it is stated in the said paragraph as follows:-\n\n\"Assistants who have completed 5 years' but not more than 1 O y1ars' service in_ their grade will be eligible for promotion by selection based strictly on the result of .a limited competitive test held among Assistants of that erv1ce group to the rank of Assstant Superintendent, prov1dd that no Assistant will be allowed rnore than three consecutive chances to compete in this test. _Those Assistants who are not. so promoted will also be eligible in due course for promotion based on seniority, subject to the rejection. of the unfit,. to vacancies in the Grade of Assistant Supermtendent which would. be reserved for being filled by such promotion\".\n\nUnder para 31 of the Scheme, leave, pension and other con4_itions of service will be as applicable at present to all offi(ferS of Central Services, Class I or II, as the case may be. -\n\nAfter the publication of the Scheme, the Ministry of Home Affairs -on.October 25, 1948, circulated an explanatory memorandum explaining the nature and purpose of the Service. The Central Secretariat is pithily described therein as ''the workshop of policy\" which helps the Government to make and revise policies and to create, maintain and direct the organs which execute the policies. The Assistants, we are concerned with, are -the fifth layer at the lowest rung of the Secretariat Department and are engaged on case work as distinguished from clerks and typist~ employed on routine work in a separate lower service.\n\nIt was pointed out that there was a phenomenal expansion in the Service as would be reflected from the figures, for example, of Assistants in 1939 at 493 which rqse upto 2306 in 1948. This is said: to have affected the quality of the Service which includes a large nu1mber of staff employed on a temporary basis. In 1948 itself the , entire number of 2306 Assistants, except 95, were temporary employees. It was further mentioned in the explanatory note that \"reinforcement is not required at the lowest level, viz., the Assistants' Grade. Here what is necessary is the weeding out of the poor quality material and the improvement of _efficiency of the rest through a permanent tenure and better training and guidance\".\n\nThen in S'equence came the instructions for the initial constitution of the Assistap.ts' Grade of the Service on March 1, 1949. These ins~ tructions gov1!med the manner in which the sanctioned permanent strength of the grade of Assistants would be filled by existing perma~ nent Assistants and from various categories of existing temporary employees.\n\nThe scheme of the Instructions contains these broad features : ( 1) All existing permanent Assistants who are not appointed to higher grades in the Service will forllll pa.rt of the permanent strength of the Service.\n\nf I\n\np, c. SETHI v. UNION (Goswami, J.) 205\n\n(2) The remaining number of permanent vacancies in the Grade will be divided among three categories, namely, (i) The Non Test Category, (ii) The First Test Category and (iii) The Second Test Category.\n\nA particular specified number of vacancies will be allotted to the Non Test Category and the remaining vacancies will be divided among the First Tesi Category and the Second Test Category in the ratio 2 : 1.\n\nThere is also reservation of a specific number of vacancies for allotment to Displaced Government servants. There are five categories of employees which are included in the Non Test Category and for them there will be two separate lists, ijamely, (a) for Displaced Government servants and (b) for others. Both the lists will be drawn up ranking the employees in order of seniority according to their length of service. The employees who are included in these lists will be eligible for permanent appointments in accordance with their position in the lists upto the respective quotas prescribed for them. I.t will, therefore, appear that although there may be a large number of employees included in the lists of Non Test Category, all may not be absorbed in the permanent vacancies but only these in order of St)niority in the lists upto the sanctioned strength of the vacancies in the Non Test Category.\n\nNext comes those Assistants who are eligible to be considered for permanent. appointment to the vacancies reserved for the First Test Category by qualifying at the first test to be held by the Federal Pub!ic Service Commission. Here again on the results of the fiirst test candidates in order of merit upto the number of vacancies allotted to this category will be confirmed in the grade. That is to say, although there may be a large number of temporary Assistants who may have qualified at the first .test, only the candidates in order of merit upto their quota in this category will l;>e confirmed. Similarly there will also be a &cond Test Category which will .include candidates who have qualified in the test but only these candidates in the order of merit upto .the number of vacancies allotted to this Category will be confinned.\n\nThe inter se seniority of the .confirmed employees it). the Non Test Category, The First Test Category and The Second Test Category will' be according to their !ength of sec; e.\n\nParagraph 8 of the instructions which deals with seniority of Assistants in. Grade IV as newly cQnstituted, which is even quoted in G . the Office Memorandum of June 22, 1949, provides in substance as: follows:-\n\nAll existing permanent Assistants who were confirmed in their posts prior to October 22, 1948, will be arranged in the first instance Ministry-wise in accordance with the rules in force then. They will be senior to all others confirmed thereafter in vacancies arising upto October 22, 1950. Those who ar~ confirmed after 1943 in vacancies arising upto October 22, 1950, will be arra11ged in a single list for all Ministries and their seniot:'ity inter se will be detennined orr\n\nthe basis of their length of continuous service temporary or permanent in the grade of Assistant or in an equivalent grade.\n\nAfter the sanctioned strength of the permanent establishment has\n\nben filled up as set out earlier, the :remaining persons in the Non Test, flrst Test and Second Test Categories, because of lack of sanctioned strength in the various categories, could not be absorbed will form a regular temporary establisment (R.T.E.). There will be a s'.ngle seniority list for such R.T.E. and seniority will be determined on the basis of the length of contin\\10us service. The sanctioned strength of the service upto Oqtober ~. 1950, will be filled as above. Thereafter a proportion of future permanent vacancies will be filled by appointments, based upon seniority from the list of members of the R.T.E.\n\nThe next stage is reached when instructions for the constitution and maintenance of the regular temporary establishment of Asshtants were issued on August 26, 1952. The R.T.E. as initiallv constituted is as follows :-- ·\n\nA list (List A) arranged in order of seniority as Assistants shall be prepared of all existing Assistants that is those holding Posts of Assistant as on July 1, 1952 and not confirmed in Grade IV and of others specifically mentioned in sub-para (2) (i) of para 3 of the instructions. These left over from the two Non Test lists mentioned eadier are entered in one list (List B) in accordance with seniority with some weightage for Displaced Government servants. The lists of persons who have qualified m the First and the Second Test Categories but not confirmed in the service are ref :rred to as Lists C and D respectively. For the first time a rotation system is introducf:d as\n\nper sub-para ( S) of these instructions in so f11r as appointments ti:> the R.T.E. shall now be made one from each lillt in serial order from the top of each Ii1it until 1200 persons are chosen. There is, however, an overall reservation of 12i% for Scheduled Castes and 5% for 'Schedulel:i Tribes. Persons who are neither ermanent members of 'Grade IV nor members of the R.T.E. of Assistants are referred to as \"Ex-cadre\" As1sistants. Under para 4 of these instructions the !fat of R.T.E. prepare.d in accordance with para 3(5) shall be the Gradat'.on List of the R.T.E. at its initial constitution. Para 6 provides that the per 800$ appofoted to the R.T .E. at its initial CC'lnstitution shall be senior to these appointed later. The Ja\"er shaU rank inter se in the order of their appointment to the R.T.E. in accordance with para 5 ( 4) of the instructions. Para 9 provides that all permanent vacancies in Grade IV not filled by direct recruienent on the results of competitive examination held by the Umon Public Service Commission shall be filled from the R.T.E. in the order of the Gradation List subject to certain 1proviso, the first one being that not lss than one-fourth of the vacancies 1; hall be reserved for petmanent Clerks.\n\nThen in the wake of these instructions came the Ministrv of Home Affairs' Office Memorandum of June 22, 1949, dealing with th~ 1mbjiect of \"seniority of the displaced Government servants who have been absorbed temporarily in service under the Central Government\".\n\nJ>aragraph 2 of the said Office Memorandum may be set out :\n\nP. c. SETHI \\/, UNION (Goswami, /.) 207\n\n\"The question of seniority of Assistants in the Secretariat was recently examined very carefully in consultation with all the Ministries and the Federal Public Service Commission and the decisions reached are incorporated jn para 2 of the Instructions far the initial constitution of the grade of Assistants .... \"\n\nB This paragraph 8 which is mentioned is the orie which is quoted earlier from the Instructions of March 1,.1949, which was expressiy intended for the initial constitution of the Assistant's Grade of the Central Secretariat Services. The principle which was adumbrated in the . Office Memorandum of June 22, 1949, is the same as has been earlier\n\nmentioned in paragraph s of the Instructions of March 1949.\n\nIn paragraph. 11 .of the counter-affidavit of the Deputy Secretary to the Government of India, Department of Personnel, Cabinet Secretariat, it is stated as follows :-\n\n\"I say that the statement that persons who were appointed Jong after the petitioners' appointment as Assistants have been further promoted in supersession of the claims of the petitioners is a statement made shorn of its context. That criticism would have been valid if with regard to the Assistants of the Central Secretariat Service the Office Memorandum of 1949 was applicable under which length of service was the\n\ncrierion in the matter of determining seniority ... \" with reference to Annexure 'B' to the writ petition I am advised to submit that if the 1949 or 1959 Office Memorandum were applicable to the petitioners' case, then Annexure 'B' would be valid and this respondent would have 110 reply thereto but, unfortunately, for the petitioner, they being governed by different principles as regards seniority and at any rate they being hot governed by 1948 or 1959 Office Memoranaum, it is only. a futile exercise to find out what would have been their seniority in the Civil List of 1962 and 1949 Office Memorandum applied to them\".\n\nIt may be noted that Annexure 'B' to the Petition is a statement showing the order \"of seniority had it been based on length of service as Assistant. ·\n\nThe principal question that arises for consideration in this case is whether the Office Memorandum of June 22, 1949, is applicable in G determining seniority of the petitioners. Para 2 of the Office Memo- . randum as quoted above clearly shows that paragraph 8 which contnins th~ rule of seniority being length of' continuous service was in terms applicable to the initial cons(itution of the grade of Assistants.\n\nThe said rule of seni-0r1ty should be taken as \"the medal in framing the rules of seniority for other services\". This w-0uld go to demonstrate that the Office Memorandum of June 22, 1949, is no bar ta the H Government in making separate prO'Visions for the mode of onstitu\n\ntion and future maintenance of the service of Assistants. There is, therefore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bal~ length of continuous\n\nservice irrespective of other considerations then the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being ha9. to, accommodate as large number as possible for gradual absorption. In doing so we are unable to hold. that the Government has violated the _provisions of articles 14 or 16 of the Constitution. The clas:sification under the instructions for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exerc:ise of power by the Government. In absence of any statutory rules prior to the Central Secretariat Rules 1962 it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganisation of the Service as long as there is no violation of article 14 orarticle 16 of the Constitution. Subje, ct to what is observed hereafter, as held above we do not find that the instructions of the Government made from time to time violated any fundamental rights of the petitioners. We should also observe that the various Office Memorandum and instruc1ions including the Civil list of 1962 have not been challenged as invalid with the solitary exception of the Office Memorandum of 1971 ( Annexure I). This Office Memorandum again is based on the Civil List of 1962 the validity of which is not specifically challenged in this\n\nPetition. We, therefore, do not find any infirmity in the Office Me morendum of 1971 (Annexure I), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated ii11 the countet-.affidavit of the Deputy Secretary (page 176 of the record) that \"the Office Memorandum of 1971 is no longer operative .. , \" We have seen that the rule of length of continuous servk~ has been adopted in the case of different categories reconstituted in\n\np the Service in accordance with the administrative instructions of the Horne Ministry issued after consultation with the Union Public .Service Commission, The grievance that the said Office Memorandum should have been applied to all the temporary employees without the req11drement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of wch cannot be explained if th(l Office Memorandum of June L2, 1949, alone were\n\napplicable, de hors the!ie other instruction.~. . , .. a It is further contended that rule 18 of the Rules is invalid in . so far as it protectl1 the seniority of _the Assistants already observed vioiating the rule of continuous length of servfoe amongst the entire gmup as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unl(!ss the temporary Assistants are\n\nabsorbed in the Service in accordance with the instructions which are valid. The entirn group of temporary Assistants canno~ claim senio:rity by the rule of length of continuous service without prior c.omplia:nce with the conditions ld down under the instructions. Rule 18 is, the:re-\n\nP., c. Sl!THI v. UNION (Goswami,}.) 209\n\nfore not violative of article 14 or article 16 of the Consti.tutiol\\ on the\n\nscor~ of giving effect to the' earlier or other instructi011s which are not lound to be othe.rwise objectionable.\n\nThat leaves one more question to be resolved, that is, with refe . rence to the direct recruits. Once the temporary Assistants have been nbsorbed in the service after they are found to be ~Hgible in accordance with the instructions their claim for seniority can11llt be superseded by the direct recruits if appointed after the farmer's absorption in the Service. This conclusion is based on the following factors :-\n\nAlthough the Scheme was made in July 1948 it was not enforced until November 1951. Even then there. was no direct recruitment until 1956. The reasons for delaying direct recruitment can be foumi from a perusal of paragraph 1 S of the 1948 Scheme itself, that \"it is essential from the point of view alike of economy and efficiency tha~ as large a proportion is possible of the members of the service should be recruited on a permanent basis ..... If the Authorised permanent strength is reduced, effect should be given to such reduction by equivalent reduction in the following triennium of the rate of direc~ recruitment to the Service ... \" It was, therefore, not the intention of the scheme to prejudice the seniority of the Assistants after their absorption in the Service nor such an intention was evident in the. explanatory memorandum annexed to the Office Memorandum of October 25, 1948. In para 11 of the latter Memorandum it is unambiguously stated the \"reinforcement is not required at the lowest level, namely, the Assistants' Grade. Here what is necessary is the weeding out of the poor quality material . and the improvement of efficiency of the re_st through permanent tenure and better training and guidances. This is also clear from the instructions for the constitution and maintenance of the regular .temporary establishment of Assistants dated August 26, 1968. Para 9 thereof provides that \"all permanent vacancies in Grade IV not filled by direct recruitment on the results of Competitive Examination, held by the Union Public Service Commission shall be filled from the Regular Temporary Establishment in the order of Gazetted List\" subject lo certain provisions with which we are not concerned.\n\nIt appears the quota, if any, of direct recruitment was not enforced and perhaps for good reasons as noted above;- the policy of the Government being different.\n\nAdministrative instructions, if not carried into effect for obvious and good reasons, cannot .:onfer a right upon entrants on later recruitment to enforce the same to supersede the claims of others already absorbed in the Service in accordance with the _appropriate and valid instructions._ Nothing was broug!1t to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same grade of service by direct rec:ruitment. It would, if permitted, be violative of article 16 of the Constitution which should never be overlooked in such cases.\n\nWe are, therefore, clearly of opinion that the direct ; ccruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary 15-L379 Sup. CI/75\n\nSUPREME COURT REPORT~ [1975] 3 s.c.R.\n\n1i:stablishment shall ranlc junior to the latt1r. We, th@refore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. This will, J?owever, not affect the cases of these Assistants who are already promoted and confirmed in a higher 1rank\n\nprior to the date of this petition.\n\nThe learned counsel for the respondents strenuously contended 1that the petition may dismissed on account of delay and laches. Jn view of the entire circl)mstances of the case and the hopes held out by 1the Government from time to time we are not prepared to acced1~ to this submission.\n\nThe petitioners also sought to take advantage of what they describeji as admission in Government's affidavits filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government. We, are, however, unable to hold that such admissions, if any, which are mere expression Of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel.\n\nIn the view we have tilken the case is distinguishable from Union of India and Ors. v. M. Ravi Varma and Ors. etc.(1) principally relied upon by the petitioners.\n\nIn the result the petition is partly allowed only to the extent that the Assistants who have been absorbed in the Service in conformity 1vith the instructions will rank senior to the direct recruits appointed 111fter such absorption. The seniority list shall be adjusted and correc:ted accordingly. This direction will, however, not affect those Assistants who have already been promoted and confirmed m a higher rank p.rior to the date of this petition. In the circumstances of the case we leave the parties to bear their own costs.\n\nP.H.P.\n\nPetition allowed in part.\n\nI. [1972] 2 S.C.R. 992;", "total_entities": 47, "entities": [{"text": "P. C. SETHI & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "P. C. SETHI & ORS", "offset_not_found": false}}, {"text": "UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "January 17, 1975", "label": "DATE", "start_char": 42, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "January 17, 1975\n\n[M. H. BEG, V. R. KRISHNA IYER AND P .. K. GOSWAMI, JJ.]"}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 61, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 72, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "P .. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 95, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 118, "end_char": 139, "source": "regex", "metadata": {}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 141, "end_char": 148, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Ministry of Home Affairs", "label": "ORG", "start_char": 1051, "end_char": 1075, "source": "ner", "metadata": {"in_sentence": "Thereafter, the Ministry of Home Affairs issued Office Memorandum dated June 22, 1949, dealing with ti:~ qu.estion of seniority."}}, {"text": "June 22, 1949", "label": "DATE", "start_char": 1107, "end_char": 1120, "source": "ner", "metadata": {"in_sentence": "Thereafter, the Ministry of Home Affairs issued Office Memorandum dated June 22, 1949, dealing with ti:~ qu.estion of seniority."}}, {"text": "absee of any statutory rules prior to the Central Secretariat Service Rules 1962", "label": "STATUTE", "start_char": 1884, "end_char": 1964, "source": "regex", "metadata": {}}, {"text": "22-6-1949", "label": "DATE", "start_char": 2698, "end_char": 2707, "source": "ner", "metadata": {"in_sentence": "There is no infirmity in the Memorandum of 1971 simply because it is not in conformity with the Memorandum of 22-6-1949."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 4135, "end_char": 4142, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4150, "end_char": 4171, "source": "regex", "metadata": {}}, {"text": "S. S. Javali", "label": "LAWYER", "start_char": 4174, "end_char": 4186, "source": "ner", "metadata": {"in_sentence": "S. S. Javali and B. P. Singh, for the petitioners."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 4191, "end_char": 4202, "source": "ner", "metadata": {"in_sentence": "S. S. Javali and B. P. Singh, for the petitioners."}}, {"text": "M. N. Phadke", "label": "LAWYER", "start_char": 4226, "end_char": 4238, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke and R. N. Sachthey, for respondent No."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4243, "end_char": 4257, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke and R. N. Sachthey, for respondent No."}}, {"text": "L\n\nP. P. Rao", "label": "LAWYER", "start_char": 4278, "end_char": 4290, "source": "ner", "metadata": {"in_sentence": "L\n\nP. P. Rao and A. K. Ganguli, for respondent No."}}, {"text": "A. K. Ganguli", "label": "LAWYER", "start_char": 4295, "end_char": 4308, "source": "ner", "metadata": {"in_sentence": "L\n\nP. P. Rao and A. K. Ganguli, for respondent No."}}, {"text": "T. V. S. Narasimhachari", "label": "LAWYER", "start_char": 4353, "end_char": 4376, "source": "ner", "metadata": {"in_sentence": "T. V. S. Narasimhachari, for respondent Nos."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 4450, "end_char": 4457, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-The petitioners are Assistants in Grade IV (Class II Non-gazetted) of the Central Secretariat Service (briefly the\n\nServic~) and have been working in the various Ministries of the Ooverr.ment of India.", "canonical_name": "GOSWAMI"}}, {"text": "Central Secre tariat Service Rules, 1962", "label": "STATUTE", "start_char": 5316, "end_char": 5356, "source": "regex", "metadata": {}}, {"text": "July 19, 1948", "label": "DATE", "start_char": 6681, "end_char": 6694, "source": "ner", "metadata": {"in_sentence": "In retrospect, on July 19, 1948, the Government.framed a scheme known as the Central Secretariat Service (Re-organisation and Reinforcement) Scheme (briefly the Scheme)."}}, {"text": "Ministry of Finance", "label": "ORG", "start_char": 7215, "end_char": 7234, "source": "ner", "metadata": {"in_sentence": "Under para 15 of the Scheme, the authorised 1iermanent strength of the Service will be fixed by the Ministry of Home Affairs with th~ concurrence of the Ministry of Finance."}}, {"text": "Goswami", "label": "JUDGE", "start_char": 7279, "end_char": 7286, "source": "ner", "metadata": {"in_sentence": "It was recog-\n\n' 1'\n\nP. c. SETHl v, UNlON (Goswami, J.) 2-03\n\nnised therein that \"it is essential' from the poin~ of Yiew alike of economy and efficiency , that as large.", "canonical_name": "GOSWAMI"}}, {"text": "25th May, 1948", "label": "DATE", "start_char": 8900, "end_char": 8914, "source": "ner", "metadata": {"in_sentence": "~3/20/48-NGS, dated the 25th May, 1948."}}, {"text": "Federal Public Servi~ Commission", "label": "ORG", "start_char": 8983, "end_char": 9015, "source": "ner", "metadata": {"in_sentence": "A'.s contemplated in that Memorandum two tests will be held by the Federal Public Servi~ Commission in which the temporary 'qualifiables' as defin\"d therein will be enabled to qualify for permanent absorption in Grade IV."}}, {"text": "Federal Public Service Commission", "label": "ORG", "start_char": 10047, "end_char": 10080, "source": "ner", "metadata": {"in_sentence": "The remaining 3 vacancies will be poofod for the Central Secretariat as a whole and filled from among the successful candidates at the competitive Ministerial Services Examination held by the Federal Public Service Commission, The qualifications for admission to this examination will continue to be graduates in the age-groups 20-22 with relaxation of age limit for the Scheduled Castes\"."}}, {"text": "October 25, 1948", "label": "DATE", "start_char": 11277, "end_char": 11293, "source": "ner", "metadata": {"in_sentence": "October 25, 1948, circulated an explanatory memorandum explaining the nature and purpose of the Service."}}, {"text": "March 1, 1949", "label": "DATE", "start_char": 12661, "end_char": 12674, "source": "ner", "metadata": {"in_sentence": "Then in S'equence came the instructions for the initial constitution of the Assistap.ts' Grade of the Service on March 1, 1949."}}, {"text": "October 22, 1948", "label": "DATE", "start_char": 15788, "end_char": 15804, "source": "ner", "metadata": {"in_sentence": "the Office Memorandum of June 22, 1949, provides in substance as: follows:-\n\nAll existing permanent Assistants who were confirmed in their posts prior to October 22, 1948, will be arranged in the first instance Ministry-wise in accordance with the rules in force then."}}, {"text": "October 22, 1950", "label": "DATE", "start_char": 15984, "end_char": 16000, "source": "ner", "metadata": {"in_sentence": "They will be senior to all others confirmed thereafter in vacancies arising upto October 22, 1950."}}, {"text": "July 1, 1952", "label": "DATE", "start_char": 17382, "end_char": 17394, "source": "ner", "metadata": {"in_sentence": "The R.T.E. as initiallv constituted is as follows :-- ·\n\nA list (List A) arranged in order of seniority as Assistants shall be prepared of all existing Assistants that is those holding Posts of Assistant as on July 1, 1952 and not confirmed in Grade IV and of others specifically mentioned in sub-para (2) (i) of para 3 of the instructions."}}, {"text": "Umon Public Service Commission", "label": "ORG", "start_char": 18915, "end_char": 18945, "source": "ner", "metadata": {"in_sentence": "Para 9 provides that all permanent vacancies in Grade IV not filled by direct recruienent on the results of competitive examination held by the Umon Public Service Commission shall be filled from the R.T.E. in the order of the Gradation List subject to certain 1proviso, the first one being that not lss than one-fourth of the vacancies 1; hall be reserved for petmanent Clerks."}}, {"text": "articles 14", "label": "PROVISION", "start_char": 22974, "end_char": 22985, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "absence of any statutory rules prior to the Central Secretariat Rules 1962", "label": "STATUTE", "start_char": 23468, "end_char": 23542, "source": "regex", "metadata": {}}, {"text": "article 14", "label": "PROVISION", "start_char": 23743, "end_char": 23753, "source": "regex", "metadata": {"linked_statute_text": "In absence of any statutory rules prior to the Central Secretariat Rules 1962", "statute": "In absence of any statutory rules prior to the Central Secretariat Rules 1962"}}, {"text": "article 16", "label": "PROVISION", "start_char": 23756, "end_char": 23766, "source": "regex", "metadata": {"linked_statute_text": "In absence of any statutory rules prior to the Central Secretariat Rules 1962", "statute": "In absence of any statutory rules prior to the Central Secretariat Rules 1962"}}, {"text": "Union Public .Service Commission", "label": "ORG", "start_char": 24918, "end_char": 24950, "source": "ner", "metadata": {"in_sentence": "Besides, it is stated ii11 the countet-.affidavit of the Deputy Secretary (page 176 of the record) that \"the Office Memorandum of 1971 is no longer operative .. , \" We have seen that the rule of length of continuous servk~ has been adopted in the case of different categories reconstituted in\n\np the Service in accordance with the administrative instructions of the Horne Ministry issued after consultation with the Union Public .Service Commission, The grievance that the said Office Memorandum should have been applied to all the temporary employees without the req11drement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld."}}, {"text": "article 14", "label": "PROVISION", "start_char": 26105, "end_char": 26115, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 16", "label": "PROVISION", "start_char": 26119, "end_char": 26129, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "August 26, 1968", "label": "DATE", "start_char": 28056, "end_char": 28071, "source": "ner", "metadata": {"in_sentence": "This is also clear from the instructions for the constitution and maintenance of the regular .temporary establishment of Assistants dated August 26, 1968."}}, {"text": "Union Public Service Commission", "label": "ORG", "start_char": 28227, "end_char": 28258, "source": "ner", "metadata": {"in_sentence": "Para 9 thereof provides that \"all permanent vacancies in Grade IV not filled by direct recruitment on the results of Competitive Examination, held by the Union Public Service Commission shall be filled from the Regular Temporary Establishment in the order of Gazetted List\" subject lo certain provisions with which we are not concerned."}}, {"text": "article 16", "label": "PROVISION", "start_char": 29090, "end_char": 29100, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 30264, "end_char": 30274, "source": "ner", "metadata": {"in_sentence": "The petitioners also sought to take advantage of what they describeji as admission in Government's affidavits filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government."}}, {"text": "[1972] 2 S.C.R. 992", "label": "CASE_CITATION", "start_char": 31277, "end_char": 31296, "source": "regex", "metadata": {}}]}
{"document_id": "1975_3_211_219_EN", "year": 1975, "text": "JOHN MARTIN v.\n\nTHE STATE OF WEST BENGAL\n\nJa11.uary 21, 1975\n\n[K. K. MATHEW, P. N. BHAGWATI AND N. L. UNTWALIA, JJ.]\n\nMailltcnance of Internal Security Act, 1971-S.8(1)-Scope of-Whether a reasoned order should be passed by Government-Whether power of dete111io11 conje.rred on District Magistrate is violative of Art. 19-Detention after droppin11 earlier criminal caes-Whelhl?r ma/a fide.\n\nPursuant to an order of detention the petitioner .was arrested under section 3(1) & (2) of the M:dntenance of Internal Security Act, 1971, In a petition under artkle 32 of the Constitution it was contended ( 1) that consideration of the petitioner's representation by the State Government instead of by an impartial tribunal was not sufficient compliance with the requirement of art. 22(5) of the Constitution; (2) that the. order passed by the State Government should have been a reasoned one; (3) that the power of preventive detention conferred on the District Magistrate under s. 3 of the Act was violative of art. r. 19 of the Constitution and (4) that the order of detention was made in colourable exercise of power by the District Magistrate since no charge sheets were filed against him in respect or the two incidents set out in the detention order and in fact the cases were dropped.\n\nDismissing the petition,\n\nHELl) : ( 1) It is indisputable on a plain reading of s. 8 (1) that the representation that . may be maae by the detenu is to the appropriate Government and it is the appropriate Government which has to consider the representation. This, however, does not mean that the a9propriate Government can reject the reP.resentation of the detenu in a casual and mechanical manner.\n\nThe appropriate Government must bring to bear on the consideration of the representation an unbiased mind. Art. 22, clause ( 5) provides inter alia that the authority making the order of detention shall afford the detenu the earliest opportunity of making a representation against the order of detention. It does .n.ot say as to which is the authority to which the representation shall be made or which authority shaT! consider it. But s.8(1) lays down in the clearest terms that the opportu.nity which is to be afforded to the detenu is to make a representation against the order of detention to the appropriate Government. [214F; 215B; 2141;.-FJ\n\nJayanaraya11 Sukul v. State of West Bengal, [19701 3 S.C.R. 225 and Harad/ian Saha v. State of West-Bengal, W.P. 1999 of 1973, decided on August 21, 1974, followed.\n\n(2) In Haradhan Saha's case it was held that there need not be a speaking order.\n\nThere is also no failure of justice by the order not being a speaking order.\n\nAll that is necessary is that there should be a real and proper consideration by the Goverqment. [21SF]\n\nHaradhan Saha v. State of West Bengal, W.P. 1999 of 1973, decided on August 21, 1974, followed.\n\nBhut Nath Mate, v. State of West Bengal, A.I.R. 1974 SC. 806, referred to and explained.\n\n(3) , It is not possible to say that the District Magistrate is not an officer <if sufficiently high status or responsibility to be entrusted with the exercise of the power of preventive detention. The District Magistrate is the head of the administration of the district a-nd is incharge of maintenance not only of law and order but also of public order as also smooth flow of supplies and services essential to the community within his district and no fault can, therefore, be found with the legislature in entrusting the exercise cl. the power al preventive detention to him in cases where it is ncces.sary to exercise such power toe\n\n212 SUPRE)l(!E COURT REPORTS [1975] 3 s.c.l\\.\n\nthe purpose of mnintenance of security of the State or publi~ order O! uupplies and services essential to the community, Moreover, exercise of such power by the Dlstrkt Magistrate is made subject to the upervisory contl'ol andl check of the Stnte Government by the provision that the order of detention must be\n\nap!)rovecl by the State Government within a period of t2 days frc1m the makinll of the order of detention. The conferment of such owcr on the District Magistrate cannot be regal'ded as an unreasonable restriction on the right of personal liberty of a citizen under Art. 19. [2160·0]\n\n( 4) The order of detention made by the District Magistrate does not suffer from the vice of ma/a fides or colourable exeri:ise of power. It is now wall\n\nsettled by several decisions of this Court that the mere fact that a c:rimlnal case had to be dropped agai.nst c detenu becai.:se the investigatin~ agency\n\ncould not procure evidence to sustain his conviction would not be sufficient to hold that tbe detention order mnde against him was main fide. [218FIJJ\n\nB. C. Blswqs v. State of West Bengal, [1!172) S.C.C. 666, followed.\n\nORIGINAL JURISDICTION : Writ Petition No. 467 of 1974.\n\nPetition under Art. 32 of the Constitution of India.\n\nR. K. Jain, for the petitioner.\n\nG. S. Chatterjee, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-The petitioner in this petition seeks a writ of habeas corpus challenging the validity of his detention under an order made by the District Magistrate, Burd wan under sub-section ( 1) read with sub-section (2) of section 3 of the Maintenance of ID.ternal Security Act, 1971. The order of dc:tention was made on 10th July, 1973 on the ground that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial t.o the maintenance of supplies and services essential to the community. Pursuant to the order of detention the petitioner was arrested on 24th August, 1973 and immediately on his arrest he was served with the grounds of detention. There were two incidents referred to in the grounds of detention as forming the basis for arriving at the subj1ective\n\nsatisfaction on the part of the District Magistrate and they were as follows :\n\n\"l. On 23.1.73 at about 03.00 hrs. you along with your associates (i) Michael Anfony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S ..\n\nHirapur, Distt. Burdwan, and others committed theft in respect of two spans of electric. line, 240 feet in length from pole No. 7 to 9 in Street No. 23 of Chittaranjan township, P. S.\n\nChittaranjan, Dist. Burdwan and thereby clamped down: darkness over the entire area causing inconvenience and hard-· ship to the people in general living in that area, which is prejudicial to the maintenance of supplies and services essential to the community.\n\n2. On 22-2-73 at about 04.00 hrs. you along with your associates (i) Michael Antony, SC!ll of M. Danial @ Ram Murti of. Purnlatalao, P. S. Hiraour, Dist. Burdwan, (ii) Dhiran Antony, son of Michael Pitter of Purniatalao, P.S ..\n\nHirapur, Distt. Burdwan and others committed.\n\ntheft in respect of 2 electric conductors, 200 feet long from pole Nos. 1 and 2 at Cross Road No. 3, Sunset avenue, Chittaranjan township, P. S. Chittaranjan, Dist. Burdwan and thereby clamped down darkness in the entire area causing much inconvenience and hardship to the people in general living in that area, which is prejudicial to the maintenance of supplies and services essential to the community.\"\n\nMeanwhile the District Magistrate reported the fact of the making of the order of detention to the State Government and the order of detention was then approved by the State Government by an order dated 21st July, 1973. The State Government also reported the fact of approval of the order of detention to the Central Government within seven days from the date of the order of approval. The State Govern~ ment thereafter placed the case of the petitioner before the Advisory Board on 20th September, 1973. On 25th September, 1973 the n.:pre-\n\ncntation of the petitioner against the order of detention was received by the State Government and after due and proper consideration the State Government rejected it by an order dated 29th September, 1973.\n\nThe representation was then forwarded by the State Government to the Advisory Board and the Advisory Board, after considering the case of the petitioner and taking into account the. representation received from him, made a report to the State Government on 23rd October, 1973 statipg that in its opinion there was sufficient cause for the detention of the petitioner. The State Government thereafter confirmed the order of detention by an urder dated 1st November, 1973.\n\nThere were several contentions urged by Mr. R. K. Jain, learned Advocate appearing on behalf of the petitioner amicus curiaes against the validity of the order of detention and we shall deal with them in the order in which they were urged. But l>efdre we do so, we may point out that there was one contention sought to. be raised by Mr.\n\nR. K. Jain on behalf of the petitioner which we did not allow to be urged. That was that the power conferred by section 13 of the Act to detain a person for a period of twelve months or until the cessation of the emergency whichever is longer was violative of article 19 of the Constitution and, in any event, the continuance of the emergency was mala fide and the period of twelve months having eiapsed from the date of detention, the petitioner was entitled to be set free. We did not permit Mr. R. K. Jain to raise this contention on hchalf of the petitioner inasmuch as it involved a question as to the validity of a provision of the Act and the legality of the continuance of the emergency and this question. could not be properly determined unless there was an adequate plea to that effect and the Central Government had an opportunity of meeting such ple_a by filing an affidavit and notice was also given to the Attorney General to enable him to make his submission on this question. We would. therefore. confine ourselves only to the other contentions raised by Mr. R. K. Jain on behalf of the petitioner.\n\nThe first contention urged by Mr. R. K. Jain on behalf of the petic ticner was that the representation of the petitioner ought to 11ave been considered by a11 impartial tribunal constituted by the State Government and it was not sufficient compliance with the requirement of\n\nart. 22, clause ( 5) that it should have been c<, msidered only by the State Goverhment. This contention was sought to be SUjJported by reference to certain observations of Faz! Ali, J., and Mahajan, J., in A. K.\n\nGopalan v. State of Madras.( 1) Now it is true that Fazal Ali, J. observed in this case that \"the right to make a representation which has been granted under the Constitution must carry with it the right to the representation being properly considered by an impartial person or persons-the constitution of an Advisory Board for the purpose of reporting whether a person should be detained for 1more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man sould be' detained for a single day\", and Mahajan, J., also aid : \"the right has been conferred to enable a detained person to prove his innocence and to secure justice, and no justice. can be said to be secured unless the representatirm is considered by some impartial person-it follows that no justice ca!l be held secured to him unless an unbiased person considers the merits of his representation and gives his opinion on the guilt or innocence of the person detained. In my opinion the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation 'Yith an unbiased mind and will render justice. That would in a way make the prooccutor a judge in the case and such a procedur~ is repugnant to all notions of justice\".\n\nBut we do not think that thes~ observations made by two out of six learned Judges can be regarded as laying down the law on thi! point.\n\nSince A. K. Gopalan's case(I) there has been a long cotena of deciions of t, his Court where th~ view has consistently been taken that the representation of the detenu must be considered by the State Government. Article22, clause (5) provides inter alia that the authority making the ord::r of detention shall afford the detenu the earliest opportu nity of making a representation against the order of detention. It does not say as to which is the authority to which the representaticin shall\n\nb~ µmde or which authority shall consider it. But section 8, sub .. section\n\n(1) of the Act lays down in the clearest terms which admit of no doubt that the opportunity which is to be afforded to the detenu is to mnke a representation against the cirder of detention to the app1opriate Government. Therefore, it is indisputable on a plain reading of section 8, subsection ( l) that the representation that may be n:::dc by the pctenu is to the appropriate Government and it is the apprnpriate\n\nGovernmnt which has to consider the representation. This Court, speaking through Ray, J., (as he then was), affirmed this position in Jayanarayan Sukul v. State of West Benga/( 2 ) and pointed out inter alia that \"the appropriate Government is to exercise its opinion imd judgment on the representation before sending the case alcnp ith the d_etenu's representation to the Advisory Board\".\n\nSo alo in Haradhan Saha v. State of West Benga/( 3 ) this Court, speakinothrough Ray, CJ., observed that \"there is an obligation on the Stat~ to consider the representation-section 8 of the Act which casts an obligation on the State to consider the representation affords the\n\n(I) [1950] S.C.R. 88.\n\n(2) fl970) 3 S.C.R. 225.\n\n(3) W.P. 1999 of 1973. dee. on Aug. 21, 1974.\n\n,.,\n\nJOHN MARTIN v. WEST BENGAL (Bhagw::1i, ].) :; 15\n\ndetenu all the rights which are guaranteed by Article 22(5). The\n\nGovernment considers the representation to ascertain essentially whether the order is in conformity with the power under the lawthe order of the Government rejecting the representation of the detenu must be after proper consideration\". It may be pointed ot1. that botlt the decisions in Jayanarayan Sukul's case and Haradhan Saha's case\n\n(supra) were decisions rendered by a Bench of five Judges. We must, therefore, hold that under section 8 ( 1) of the Act, it is the approprivate Government that is required to consider the representation of tJi.-.: detenu. This, however, does not mean that the appropriate Government can reject the representation of the detenu in a casual or mechanical manner. The appropriate Government must pring to bear on the consideration of the representation an unbiased mind. There should be, as pointed out by this Court in Haradhan Saha's case, (supra)\n\n\"a real and proper consider:ition\" of the representation by the appropriate Government. We cannot over-emphasise the need for the closest and most zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is jus.tified.\n\nIt was the~ ontendcd on behalf of the petitioner that the order passed by the State Government rejecting the representation of the detenu should be a reasoner! order and since in the present case the order of the State Government did not disclose any reasons for rejecting the representation of the petitioner, the detention of the petitioner .was invalid. The argument of the petitioner was that unless reasons were given bv the State Government. how could it be ensured that there .was real and proper consideration of the representation of the detenu. This contention, attractive though it may seem, is, in our opinion, not welJ founded. It stands concluded by the decision in Haradhan Saha's case (supra) to which we have just referred. It was pointed out in that case by Ray, CJ., speaking on behalf of the Court : \"There need not be a spe, aking order. There is also no failure of _justice bv the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government\". These . observations must give a quietus to the contention that the order of the State Government must be a reasoned order. It is true that in Bhut Nath Mate v. State of West Be11C!al(1) Krishna Iver, J., soeaking\n\non behalf of a Division Bench of this Court observed that : \"It mu:t be self-evident from the order that the substance of the charge 1lnd the essential answers in the representation have been impartially considered\". but if we read the judgment as a whole there can be no doubt that these observations were .not meant to lay down a Jegal requirement that the order of the State Government must he a f, f:·ak\n\ning order but they were intended to convey an admonition to the State\n\nGovernmnt that it would be eminentlv desirable if the order disclN.ed\n\nthat \"the substance of the charec and the essential answers in the representation\" had been impartially considered. The learned Judge in fact started the discussion of this ooiRt bv stating : \"We are not persuaded that a speaking order should be passed bv rhe Governmrnt or by the Advisory Board while aoproving or advising continuance of detention\". In any event, the decision in Haradhan Saha's case (supra)\n\n---------~ ---\n\n(1) A.LR. 1974 S.C. ~06.\n\nbeing a decision rendered by a Bench of five Judges must prevail with us. We, therefore, reject the present contention of the petitioner.\n\nThe next contention urged on behalf of the petitioner was that it was obvious from the order of detention that the District Magistrate had made the order of detention in a mechanical fashion without applying his mind to the facts of the case relating to the petitioner. We do not think there is any substance in this contention. The order of detiention is in proper form and it does not betray any lack of application of mind on the part of the District Magistrate.\n\nThen Mr. R. K. Jain on behalf of the petitioner contended that the power of preventive detention conferred on the District Magistrate uuder section 3 of the Act was violative of Art. 19 of the Constitution inasmuch as the District Magistrate was hardly an officer of such high and respon; ible status as could be entrusted with the exercise of such drastic power subversive of personal liberty. This contention is also futile and must be rejected. It is not possible to say that the District Magistrate is not an officer of sufficiently high status or responsibility to be untrusted with the exercise of the power of preventive detention. The District Magistrate is .the head of the administration of the District and is in charge of maintenance not only of law and order but also of public\n\norer as also s.!Tlooth flow of supplies and services essential to th1~ com munity within his district and no fault can, therefore, be found with the legislature for entrusting the exercise of the power of preventive detention to him in cases where it is necessary to exercise such power for the purpose of maintenance of the security of the State or public order or supplies and servic> essential to the community. Moreover, the exercise of such power by the District Magistrate is made subj<:ct to the supervisory control and check of the State Government by the provision that the order of detention must be approved ly the: State Government within a period of twelve days from the making of the: order of detention. The conferment of such power on the District Magistrate cannot in the circumstances be regarded as an unreasonable restriction on the right of personal liberty of a critizen under Art. 19.\n\nThe next contention urged on behalf of the petitioner was that the order of det1ntion was invalid since the District Magistrate had not stated in the 01tler that the petitioner would be likely to indulge in preiudicial acts in future and hence it was necessary to detain him.\n\nA mere reading of the order of iietention is sufficient to repel this contention.\n\nThe order of detention starts with the rectal that the Dis\n\ntric~ Magistrate was satisfied with respect to the petitioner that \"with a v.1ew to prnventing im from acting in any manner prejudicial to the mamtenance of suoohes and services essential to the commun'itv\" it\n\nws necesarv to detain. him. This recital clearly shows that th~ Disnct M ag1strate was satisfied that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services\n\nessetial to the con:munitv and that was the reason why the Distric; t Magistr.ate tought 1t necessary to detain the petitioner with a view to preventmg him from acting in such manner.\n\nThe satisfaction of the\n\n(4) A. T. R. 1974 S. C. 806.\n\nDistrict Magistrate as regards the necessity for detention of the petitioner was grounded on a reasonable prognosis. 9f the future behaviour of tne petitioner based on his past conduct, namely, participation in the two incidents set out in the grounds of detention, judged in the light of the surrounding circumstances. The District Magistrate in fact stated in paragraph 4 of the affidavit in reply filed by him that he ws satisfied that \"if. the detenu-petitioner was not detained under the said Act he was likely to act further .in a manner prejudicial to the maintenance of supplies and services essential to the community. The acts committed by detenu showed a course ot conduct which satisfied me that it was necessary to make the said order of detention\".. This contention must also, therefore, fail.\n\nMr. R. K. Jain ori behalf of the petitioner then urged that there was nothing to show that the Central Government had applied its mind to the case of the petitioner on receipt of the papers from the State: Government. But this contention is also futile. It is clear from the affidavit in reply filed by tb, ll District Magistrate that the fact of the approval of the order of detention by the State Government was communicated to the Central Government along with the grounds of detention and such other p!J, rticulars as in the opinion of the State Governmem had a bearing on the necessity or an order of detention., Plainly, this was in compliance with the requirement of section 3, sub-section ( 4). Section 14, sub-section ( 1) undoubtedly conferred power on the Central Government to revoke or modify an order of detention but merely because the Central Government did not do so, it does not mean that the Central Government did not apply its mind to the case of the petitioner forwarded to it by .the State Government There is riothing to show that the_ Central Government did not consider the case of the petitioner or apply its mind to the grounds of detention and other particulars received by it from the State Government. The Central Government not being a party to the petition, it could not have an opportunity of stating whether it appl; ed its mind to the case of the petitioner for the Purpose uf .<lecidinl); whether or not to intervene by revoking or modifying the order of detention.\n\nIt was also urged by Mr. R. K. Jain ori behalf of the petitioner that there was some other material before the District Magistrate besides the two incitients referred to in the grounds of detention and since this material was not disclosed to the petitioner, he was deprived of an opportunity of making effective representation and that vitiated the order of detention. Now. Mr. G. S. Chatterjee, lerrrned counsel appearing on behalf of the State, produced before us the history sheet of the petitioner which was placed before the District Magistrate and which, we can legimately assume, must have weighed with the District Magistrate in inducing the requisite subiective satisfaction. This historY-sheet showeld that besides the two incidents set out in the grounds of detention, there was no other material which could have\n\npossibly weighed with the District Magistrate in . reaching his subjeC· tive satisfaction.\n\nOf course there was material of a general nature about the antecedents of the petitioner but that could not possibly have had anv impact in the process of reaching subJective satisfaction\n\nand we would therefore, be justified in accepting the statement of the District Magistrate in his affidavit in reply that the two incidents set out in the grounds of detention were the only material on which he based his subjective satisfaction for the J:>urpose of making the order of detention.\n\nWe accordingly reject this contention.\n\nThe last contention urged by Mr. R .. K. Jain on behalf of the: petitioner was that the order of detention was made by the District Magistrate in colourable exercise of power, since no charge-sheets were filed against the petitioner in the court of the magistrate in resp1ct of the two incidents set out in the grounds ot detention and the crimin.al cases registered with Chitaranjan Police Station were dropped by filing final Report as true, briefly described as F.R.T. To understand this contention it is necessary to state a few facts which may be gathered from the affidavit in reply filed by the District Magistrate. The first iucident took place on 23rd January, 1973 and in respect of it, a criminal case was registered with Chittaranjan Police Station on 12th February,\n\n1973. Similarly, in respect of the second incident, which took place on 22nd February, 1973, a criminal case was registered with Chittaranjan Police Station on 2nd March, 1973. Both these criminal cases were tiled in the court of Sub-Divisional Juliicial Magistrate, Asansole.\n\nThe name of the petitioner was not mentioned in the First Information Report in either of thesio two cases but his participation in the two incidents was revealed in the course of investigation. The petitioner was arrested on 1st March, 1973 in connection with some other case and he was shown as arrested in connection with these two cases since they were pending against him. The petitioner was thereafter released on bail though we do not know the precise date on which such release was effected. It appears that no charge-sheet was filed in both these cases and these cases were droppetl by filing F.R.T. The affidavit in reply does not state as to what was the reason for which F.R.T. was filed and these cases were dropped but taking the case of the State at its worst. we may presume that this was_ done as the police c:ould not procure evidence to sustain the conviction of the petitione1:. The petitioner was discharged from these cases on 6th June. 1973 an-\\ from, the other case nlso he was discharged on 14th June, 1973. The\n\n01-lder of drtntion wa~ thereafter made on 10th July. 1973 but the petitioner was abscondinJt and he could not, therefore, be arriested until 2·1th Au1zust, 1973. On these facts it is difficult to see how it can be contended that the order of detention was passed by the Dis~ trict Magistrate: mala fide or in colourable exercise of his power. It is now well settkd by several decisions of ·-this Court that the mere fact that a criminal case had to be dropoeld against a detenu because: the investigatfon could not procure evidence to smtain his convktiorr would not be sufficient to hold that the detention order made against him is mala fide. We mav refer onlv to one of these decisions. narnelv, B. C. Biswas v. State of West Ben!!C'/.(I) There, the grounds on which the order of detention was baed rl'ferred to two inci<ll'nts in which the detenu and his ass<'ciates were-alleged to have participated. Reports were lodged with the police against the detenu in resoect of the two incidents mentioned in th~ grounds of detention. The investigating\n\n(!) [1972] s. c. c. 66f.\n\nc \\\n\nofficer after investigating the cases relating to those incidents submitc ted a eport that \"nothmg could be had against the peuuoner\". The. detenu was, therefore, discharged in those cases. l he argument urged on behalf of the detenu was that in the circumstances the order of detention should be held to be. mala fide. This argument was rejected by a Division Bench in !he fo1loing words :\n\n.. In our opinion, even if it may be assumed that cases were registered against the petitioner by the police in respect of the two incidents mentioned in the grounds of detention aml\n\nthe police as a res\\tlt of the investigation could not procure evidence to sustain the, conviction of the petitioner, that fact would not be sufficient to hold that the detention order\n\nmde against the petitioner was mala fide. The matter is indeed concluded bv a decision of this Court in the case. of Sahib Singh DugaJ, v. Union of India.P) The petitioner in that case was arreste(l on December 6, 1964, for offence under the Official Secrets Act.\n\nOn March 11, 1965, the Investigating Officer made a report to the Court to the effect that the petitioner and others involvedin that criminal case might be discharged as sufficient evidence for their conviction. could not be discovered during the investigation. The Magistrate consequently discharged the petitioner and others.\n\nImmediately after the petitioner came out of the Jail, he was servet:l with an order for his detention under Rule 3()( 1) (b) of the Defence of India Rules. One of the con- . tentions which was advanced on behalf of the petitioner In\n\npetition under Article 3 2 of the Constitution was that the detention order was mala fide .inasmuch as it had been made after the authorities had decided to drop criminal proceedings because of inability to get sufficient evidence to secure conviction. This contention was repelted by this Court and it was held that th!;' above circumstance was not sufficient\n\nt~ lead to th~ inference that. the action of the detaining authont.y was mala fide.\n\nThis Court observed : \"We cani10t infer merely from the f'act thnt the authorities decilded to drop the case under the Official Secrets Act and thereaf.ter to order the detention of the petitioners\n\nunder the Rules that the order of detention was niala ftde.\"\n\nJn view of the above, we hold that the order for the detention of the petitioner hs not been shown to be mala fide.\" We must for the same reason's hold that the order of detentk made by the District Magistrate in the present case does not guff from the vice of .mala fidp or colourable exercise of power.\n\n These were the only contentions urged on behalf of the petitioner and since there is no substance in them, the petition fails and the rule is discharge(}.\n\nP.B.R.\n\nPetition dismissed; ------ -- - --- --\n\n(1) [1966] 1 S. C. R. 313.", "total_entities": 80, "entities": [{"text": "JOHN MARTIN", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "JOHN MARTIN", "offset_not_found": false}}, {"text": "THE STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 16, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "Ja11.uary 21, 1975", "label": "DATE", "start_char": 42, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "JOHN MARTIN v.\n\nTHE STATE OF WEST BENGAL\n\nJa11.uary 21, 1975\n\n[K. K. MATHEW, P. N. BHAGWATI AND N. L. UNTWALIA, JJ.]"}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 63, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW*", "offset_not_found": false}}, {"text": "P. N. 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State of West Bengal, [19701 3 S.C.R. 225 and Harad/ian Saha v. State of West-Bengal, W.P. 1999 of 1973, decided on August 21, 1974, followed."}}, {"text": "Haradhan Saha", "label": "OTHER_PERSON", "start_char": 2507, "end_char": 2520, "source": "ner", "metadata": {"in_sentence": "(2) In Haradhan Saha's case it was held that there need not be a speaking order."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 4214, "end_char": 4221, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 4835, "end_char": 4842, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4850, "end_char": 4871, "source": "regex", "metadata": {}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 4907, "end_char": 4923, "source": "ner", "metadata": {"in_sentence": "G. S. Chatterjee, for the respondent.", "canonical_name": "G. S. Chatterjee"}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 4990, "end_char": 4998, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.-The petitioner in this petition seeks a writ of habeas corpus challenging the validity of his detention under an order made by the District Magistrate, Burd wan under sub-section ( 1) read with sub-section (2) of section 3 of the Maintenance of ID.ternal Security Act, 1971."}}, {"text": "section 3", "label": "PROVISION", "start_char": 5216, "end_char": 5225, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Security Act, 1971", "label": "STATUTE", "start_char": 5258, "end_char": 5276, "source": "regex", "metadata": {}}, {"text": "24th August, 1973", "label": "DATE", "start_char": 5596, "end_char": 5613, "source": "ner", "metadata": {"in_sentence": "Pursuant to the order of detention the petitioner was arrested on 24th August, 1973 and immediately on his arrest he was served with the grounds of detention."}}, {"text": "23.1.73", "label": "DATE", "start_char": 5895, "end_char": 5902, "source": "ner", "metadata": {"in_sentence": "There were two incidents referred to in the grounds of detention as forming the basis for arriving at the subj1ective\n\nsatisfaction on the part of the District Magistrate and they were as follows :\n\n\"l. On 23.1.73 at about 03.00 hrs."}}, {"text": "Michael Anfony", "label": "OTHER_PERSON", "start_char": 5958, "end_char": 5972, "source": "ner", "metadata": {"in_sentence": "you along with your associates (i) Michael Anfony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S ..\n\nHirapur, Distt.", "canonical_name": "Michael Anfony"}}, {"text": "M. Danial @ Ram Murti", "label": "OTHER_PERSON", "start_char": 5981, "end_char": 6002, "source": "ner", "metadata": {"in_sentence": "you along with your associates (i) Michael Anfony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S ..\n\nHirapur, Distt."}}, {"text": "Bhiren Antony", "label": "OTHER_PERSON", "start_char": 6056, "end_char": 6069, "source": "ner", "metadata": {"in_sentence": "you along with your associates (i) Michael Anfony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S ..\n\nHirapur, Distt."}}, {"text": "Michael Pitter", "label": "OTHER_PERSON", "start_char": 6078, "end_char": 6092, "source": "ner", "metadata": {"in_sentence": "you along with your associates (i) Michael Anfony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S ..\n\nHirapur, Distt."}}, {"text": "Purniateloo", "label": "GPE", "start_char": 6096, "end_char": 6107, "source": "ner", "metadata": {"in_sentence": "you along with your associates (i) Michael Anfony, son of M. Danial @ Ram Murti of Purniatetao, P. S. Hirapur, District Burdwan (ii) Bhiren Antony, son of Michael Pitter of Purniateloo, P. S ..\n\nHirapur, Distt."}}, {"text": "22-2-73", "label": "DATE", "start_char": 6571, "end_char": 6578, "source": "ner", "metadata": {"in_sentence": "On 22-2-73 at about 04.00 hrs."}}, {"text": "Michael Antony", "label": "OTHER_PERSON", "start_char": 6634, "end_char": 6648, "source": "ner", "metadata": {"in_sentence": "you along with your associates (i) Michael Antony, SC!ll of M. Danial @ Ram Murti of.", "canonical_name": "Michael Anfony"}}, {"text": "Dhiran Antony", "label": "OTHER_PERSON", "start_char": 6733, "end_char": 6746, "source": "ner", "metadata": {"in_sentence": "Burdwan, (ii) Dhiran Antony, son of Michael Pitter of Purniatalao, P.S ..\n\nHirapur, Distt."}}, {"text": "Central Government", "label": "ORG", "start_char": 7557, "end_char": 7575, "source": "ner", "metadata": {"in_sentence": "The State Government also reported the fact of approval of the order of detention to the Central Government within seven days from the date of the order of approval."}}, {"text": "20th September, 1973", "label": "DATE", "start_char": 7731, "end_char": 7751, "source": "ner", "metadata": {"in_sentence": "The State Govern~ ment thereafter placed the case of the petitioner before the Advisory Board on 20th September, 1973."}}, {"text": "25th September, 1973", "label": "DATE", "start_char": 7756, "end_char": 7776, "source": "ner", "metadata": {"in_sentence": "On 25th September, 1973 the n.:pre-\n\ncntation of the petitioner against the order of detention was received by the State Government and after due and proper consideration the State Government rejected it by an order dated 29th September, 1973."}}, {"text": "29th September, 1973", "label": "DATE", "start_char": 7975, "end_char": 7995, "source": "ner", "metadata": {"in_sentence": "On 25th September, 1973 the n.:pre-\n\ncntation of the petitioner against the order of detention was received by the State Government and after due and proper consideration the State Government rejected it by an order dated 29th September, 1973."}}, {"text": "23rd October, 1973", "label": "DATE", "start_char": 8255, "end_char": 8273, "source": "ner", "metadata": {"in_sentence": "representation received from him, made a report to the State Government on 23rd October, 1973 statipg that in its opinion there was sufficient cause for the detention of the petitioner."}}, {"text": "1st November, 1973", "label": "DATE", "start_char": 8449, "end_char": 8467, "source": "ner", "metadata": {"in_sentence": "The State Government thereafter confirmed the order of detention by an urder dated 1st November, 1973."}}, {"text": "R. K. Jain", "label": "OTHER_PERSON", "start_char": 8514, "end_char": 8524, "source": "ner", "metadata": {"in_sentence": "There were several contentions urged by Mr. R. K. Jain, learned Advocate appearing on behalf of the petitioner amicus curiaes against the validity of the order of detention and we shall deal with them in the order in which they were urged."}}, {"text": "section 13", "label": "PROVISION", "start_char": 8920, "end_char": 8930, "source": "regex", "metadata": {"statute": null}}, {"text": "article 19", "label": "PROVISION", "start_char": 9068, "end_char": 9078, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "art. 22", "label": "PROVISION", "start_char": 10200, "end_char": 10207, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Faz! Ali", "label": "JUDGE", "start_char": 10373, "end_char": 10381, "source": "ner", "metadata": {"in_sentence": "This contention was sought to be SUjJported by reference to certain observations of Faz!"}}, {"text": "Mahajan", "label": "JUDGE", "start_char": 10391, "end_char": 10398, "source": "ner", "metadata": {"in_sentence": "Ali, J., and Mahajan, J., in A. K.\n\nGopalan v. State of Madras.("}}, {"text": "Fazal Ali", "label": "JUDGE", "start_char": 10466, "end_char": 10475, "source": "ner", "metadata": {"in_sentence": "1) Now it is true that Fazal Ali, J. observed in this case that \"the right to make a representation which has been granted under the Constitution must carry with it the right to the representation being properly considered by an impartial person or persons-the constitution of an Advisory Board for the purpose of reporting whether a person should be detained for 1more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man sould be' detained for a single day\", and Mahajan, J., also aid : \"the right has been conferred to enable a detained person to prove his innocence and to secure justice, and no justice."}}, {"text": "A. K. Gopalan", "label": "OTHER_PERSON", "start_char": 11861, "end_char": 11874, "source": "ner", "metadata": {"in_sentence": "Since A. K. Gopalan's case(I) there has been a long cotena of deciions of t, his Court where th~ view has consistently been taken that the representation of the detenu must be considered by the State Government."}}, {"text": "section 8", "label": "PROVISION", "start_char": 12399, "end_char": 12408, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 12699, "end_char": 12708, "source": "regex", "metadata": {"statute": null}}, {"text": "Ray", "label": "JUDGE", "start_char": 12924, "end_char": 12927, "source": "ner", "metadata": {"in_sentence": "This Court, speaking through Ray, J., (as he then was), affirmed this position in Jayanarayan Sukul v. State of West Benga/( 2 ) and pointed out inter alia that \"the appropriate Government is to exercise its opinion imd judgment on the representation before sending the case alcnp ith the d_etenu's representation to the Advisory Board\"."}}, {"text": "section 8", "label": "PROVISION", "start_char": 13407, "end_char": 13416, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 22(5)", "label": "PROVISION", "start_char": 13708, "end_char": 13721, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Jayanarayan Sukul", "label": "OTHER_PERSON", "start_char": 14015, "end_char": 14032, "source": "ner", "metadata": {"in_sentence": "that botlt the decisions in Jayanarayan Sukul's case and Haradhan Saha's case\n\n(supra) were decisions rendered by a Bench of five Judges."}}, {"text": "section 8", "label": "PROVISION", "start_char": 14161, "end_char": 14170, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 17885, "end_char": 17894, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 17923, "end_char": 17930, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 19436, "end_char": 19443, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 3", "label": "PROVISION", "start_char": 22009, "end_char": 22018, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 22038, "end_char": 22048, "source": "regex", "metadata": {"statute": null}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 23218, "end_char": 23234, "source": "ner", "metadata": {"in_sentence": "Mr. G. S. Chatterjee, lerrrned counsel appearing on behalf of the State, produced before us the history sheet of the petitioner which was placed before the District Magistrate and which, we can legimately assume, must have weighed with the District Magistrate in inducing the requisite subiective satisfaction.", "canonical_name": "G. S. Chatterjee"}}, {"text": "R .. K. Jain", "label": "OTHER_PERSON", "start_char": 24318, "end_char": 24330, "source": "ner", "metadata": {"in_sentence": "The last contention urged by Mr. R .. K. Jain on behalf of the: petitioner was that the order of detention was made by the District Magistrate in colourable exercise of power, since no charge-sheets were filed against the petitioner in the court of the magistrate in resp1ct of the two incidents set out in the grounds ot detention and the crimin.al cases registered with Chitaranjan Police Station were dropped by filing final Report as true, briefly described as F.R.T. To understand this contention it is necessary to state a few facts which may be gathered from the affidavit in reply filed by the District Magistrate."}}, {"text": "Chitaranjan Police Station", "label": "ORG", "start_char": 24657, "end_char": 24683, "source": "ner", "metadata": {"in_sentence": "The last contention urged by Mr. R .. K. Jain on behalf of the: petitioner was that the order of detention was made by the District Magistrate in colourable exercise of power, since no charge-sheets were filed against the petitioner in the court of the magistrate in resp1ct of the two incidents set out in the grounds ot detention and the crimin.al cases registered with Chitaranjan Police Station were dropped by filing final Report as true, briefly described as F.R.T. To understand this contention it is necessary to state a few facts which may be gathered from the affidavit in reply filed by the District Magistrate."}}, {"text": "23rd January, 1973", "label": "DATE", "start_char": 24941, "end_char": 24959, "source": "ner", "metadata": {"in_sentence": "The first iucident took place on 23rd January, 1973 and in respect of it, a criminal case was registered with Chittaranjan Police Station on 12th February,\n\n1973."}}, {"text": "Chittaranjan Police Station", "label": "ORG", "start_char": 25018, "end_char": 25045, "source": "ner", "metadata": {"in_sentence": "The first iucident took place on 23rd January, 1973 and in respect of it, a criminal case was registered with Chittaranjan Police Station on 12th February,\n\n1973."}}, {"text": "12th February,\n\n1973", "label": "DATE", "start_char": 25049, "end_char": 25069, "source": "ner", "metadata": {"in_sentence": "The first iucident took place on 23rd January, 1973 and in respect of it, a criminal case was registered with Chittaranjan Police Station on 12th February,\n\n1973."}}, {"text": "22nd February, 1973", "label": "DATE", "start_char": 25137, "end_char": 25156, "source": "ner", "metadata": {"in_sentence": "Similarly, in respect of the second incident, which took place on 22nd February, 1973, a criminal case was registered with Chittaranjan Police Station on 2nd March, 1973."}}, {"text": "2nd March, 1973", "label": "DATE", "start_char": 25225, "end_char": 25240, "source": "ner", "metadata": {"in_sentence": "Similarly, in respect of the second incident, which took place on 22nd February, 1973, a criminal case was registered with Chittaranjan Police Station on 2nd March, 1973."}}, {"text": "Sub-Divisional Juliicial Magistrate, Asansole", "label": "COURT", "start_char": 25295, "end_char": 25340, "source": "ner", "metadata": {"in_sentence": "Both these criminal cases were tiled in the court of Sub-Divisional Juliicial Magistrate, Asansole."}}, {"text": "1st March, 1973", "label": "DATE", "start_char": 25569, "end_char": 25584, "source": "ner", "metadata": {"in_sentence": "The petitioner was arrested on 1st March, 1973 in connection with some other case and he was shown as arrested in connection with these two cases since they were pending against him."}}, {"text": "6th June. 1973", "label": "DATE", "start_char": 26292, "end_char": 26306, "source": "ner", "metadata": {"in_sentence": "The petitioner was discharged from these cases on 6th June."}}, {"text": "10th July. 1973", "label": "DATE", "start_char": 26424, "end_char": 26439, "source": "ner", "metadata": {"in_sentence": "The\n\n01-lder of drtntion wa~ thereafter made on 10th July."}}, {"text": "2·1th Au1zust, 1973", "label": "DATE", "start_char": 26523, "end_char": 26542, "source": "ner", "metadata": {"in_sentence": "1973 but the petitioner was abscondinJt and he could not, therefore, be arriested until 2·1th Au1zust, 1973."}}, {"text": "December 6, 1964", "label": "DATE", "start_char": 28428, "end_char": 28444, "source": "ner", "metadata": {"in_sentence": "P) The petitioner in that case was arreste(l on December 6, 1964, for offence under the Official Secrets Act."}}, {"text": "Official Secrets Act", "label": "STATUTE", "start_char": 28468, "end_char": 28488, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 11, 1965", "label": "DATE", "start_char": 28494, "end_char": 28508, "source": "ner", "metadata": {"in_sentence": "On March 11, 1965, the Investigating Officer made a report to the Court to the effect that the petitioner and others involvedin that criminal case might be discharged as sufficient evidence for their conviction."}}, {"text": "Article 3", "label": "PROVISION", "start_char": 29070, "end_char": 29079, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Official Secrets Act", "label": "STATUTE", "start_char": 29621, "end_char": 29641, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1966] 1 S. C. R. 313", "label": "CASE_CITATION", "start_char": 30278, "end_char": 30299, "source": "regex", "metadata": {}}]}
{"document_id": "1975_3_220_253_EN", "year": 1975, "text": "ANANT MILLS CO. LTD. v.\n\nSTATE OF GUJARAT & ORS.\n\nJanuary 21, 1975\n\n[A. N. RAY, C.J., P. JAGANMOHAN REDDY, H. R. KHANNA AND\n\nP. K. GOSWAMI, .TJ.)\n\nConstitution of India, 1950, Art. 14-Treating pending coses as a class .differem from decided cases, if a permissible classi[ic111iv11.\n\nConstitution of India, 1950, Art. 14-Duty of !he person challenging a provision of the Act as discrimi11atory-Constitutio11al validity, if cauld be 'decided on the basis of supposed existence of certain facts by raising a presumption.\n\nBombay Provincial Municipal Corporations Act (Bombay Act 59 of 1949) as amended by Gujarat Acts No. 8 of 1968 a11d No. 5 of 19i0, S,•ctions 129 a11d 137-Conservancy tax for different categories of prop.mies-Tax, if should\n\nbe related only to the expense for conserrancy service for I/wt paniwlar .category.\n\nBombay Prori11cia/ Municipal Corporations Act (Bombay Act 59 of 1949) as amended by Gujarat Act Nos. 8 of 1968 and No. 5 of 1970, proviso to s; ectiot1 129(b)-Corporation to determine dif/er1!nt rates for different classes of properties-Prol'iso, if suffers from the vidie of excessii'e delegation of legisl111ive power.\n\nBombay Provi11cial M1111icipal Corporations Act (Bom{HI)' Act 59 of 1949) as amended by Gujarat Acts No. 8 of 1968 a11d No, 5 of 1970, Section 406(2)(e) rule 42 of Taxation Rules-Appeal against a tax or mteable value-Deposit of\n\namount claimed condition precedent to e11tertaining appeal-Appellate j11dge empowered to remol'e u11due hardship ro appe//a11t-Requireme!lt of deposit, if\n\n11ul/ifies right of appea/-Prorfsion if makes imidio11s disti11ctio11.\n\nConstitution of India, 1950, Entry 49, List If, Schedule V/l-\"Land\", if E includes 1111dergro1111d strata.\n\nThe assessment of properties to property tax in Ahmedabad was made under the Bombay Provincial Municipal Corporations Act by making: entries in the assessment books in accordan:e with the procedure prescribed in the Taxation Rules set out in Chapter VIII of Schedule A of :lhe Corporations Act, A st!parate section of the assessment book was prepared by the Commissioner of the Corporation for each official year in respect of the assessment of property tax F on certain kinds of properties like textile mills, factories and bl!.ildings of University. These properties were classified as special properties. There was some increase in the rateable value fixed by the Commi>sioner for the year 1964-65 and 1965-66. The Commissioner also made initial entries in a; sessment book in respect of those properties for the year 1966-67. A numbr of writ petitions under Art. 32 of the Constitution were filed in this Court .:halJ.w(!ing\n\nthe validity of th(' assessments for the yea:rs !964-65 and 1965-66 as \\\\'ell as initial entries for the yca, r 1966-67. The Supreme Coun in the judgment N\"w fo.:fanek Spinnfni; & Wea1•i11p, Mills Co, Ltd. & Ors. v. /lfo//iciral CorporatiO!.' of G Ci1y of Al1111,-.J,1bud & Ors. [1967] 2 S.C.R. 69, allowed th~ writ petitions and hdd the relevant entries in the assssment hooks to be invalid. Rules 7(2) and ( 3) were also held to be invalid on account of excssive delegation of powers hv the iegislature.\n\nThe 'taxation on the basis of floor area as adopted by the Corporation was held to violah~ Art. 14 of the Constitufon.\n\nWhen the Corporation initiated steps to make fresh assessment for the years 1964-65, 1965-66 and 1966-67. it was unable to do so in view of the decision of the High Court in the case of A !tmedabad Mu11icipa/ity v. K eslwrlal 6 G.I..R.\n\nH 2'.!8 wherein it wa-i held that the Corporation had no power to asess and levy property tax for uny otncial year after that year had ended. In order to get over this difficulty. the legislature enacted Gujarat Act 8 of 1968. New Sec. 1::2A\n\nANANT MILLS v. GUJARAT (Khanna, J.) 221\n\n\nThe Court also struck down sub-section (3) of >. 152-A which gave power to •he Corporation to refuse to refund the amount illegally collected despite the order of the Court. ·\n\nFor the offici&l year 1967-68 the Corporation determined the rate of conservancy tax to be 3 per cent and a special rate of 9 per cent for the large premises like textile mills and factories.\n\nThe petitioners preferred appeals against the order of the Deputy Commissioner determining the amount of property tax to the Chief Judge of the Court of Small Causes. Ahmedabad ..\n\nThe Chief Judge W3's, however, pre:luded from hearing those appeals since the amount of tax was not deposited by the petitioners as required bys. 406 (2)(e) of the Corporations Act. The petitioners thereafter filed petitions in the High Court challenging the validity of the assessments made by the Depu, ty Municipal Commissioner for the official years 1966-67, 1%7-68 and 1968-69. Those writ petitions were allowed by the Gujarat High Court as per judgment dated October 27, 1969.\n\nThe ordin&nce dated December 23, 1969, was replaced by Gujarat Act No. 5 of 1970 which came into effect from March 31. 1970. This Act brought about material changes in the Corporations Act. .\n\nThe High Court held (i) Section 2\\IA) Clause (i) is valid so far as it is applicable to the official year 1969·70 but it is null and void in so far as it applies to the official years from the commencement of the Corporations Act upto and including the official year 1968-69, on account of infraction or Art. 14;\n\n(ii) Se:tion 406(2)(~) ands. 41l(bb) are null und void as being in contravention of Art. 14; Rule 42 of the Taxation Ru,1es is also ultra vircs and void in so far as it' provides that if an appeal is preferred or entertained against the tax, wa:rrant shall not issue for the recovery of the amount of tax; and\n\n(iii) Th~ Resolutions passed by the CorporJtion for the official year 1967-68, 1968-69, 1969-70 and 1970-7! to the extent to which they fix the rate of conservancy tax at 9 per cent inter alia in respect of textile mills and factories belonging to the petitioners are ultra vires the proviso to s. 129(b) and the\n\nrate of conservancy tax applicable in respect of these textile mills and factories must. therefore, be taken to be the general rate of 3 per .:ent. The High Court upheld the constitutional validity of provi\"o (e) to s. 2(IA) clause (ii) and sections 49, 129(b), 406(2)(e) and 411 (bb) of the Act ands. 13(1) and 13 t ~) of the Act 5 of 1970.\n\nCi1il Appeals Nos. 489 to 513 and 752 to 755 of 1973 have been filed in thi' CouJt by the petitioners before the High Cl\"urt against the Judgment of that Court in so far a:s the Court had upheld the wm::tl.!.tional validity of the impugned provisions. Civil Appeals Nos. 643 to 684 of 1973 have be.en filec by the Municipal Corporation of the City of Ahmedabad and oher.; against the abovz judgment in so far as the High Court has struck down the impugned provisions and the Resoiutions.\n\nCivil. Appeals No. 389 to 430 of 1974 have been filed by the State of Gujarat against the judgment in so far as the High Court has struck down the impugned provi, ions.\n\nWrit Petitions Nos. 51, 60 to 73, 87 to 91. 197. 492 to 503, 533, 534 and 583 of 1972 as also writ petitions Nos. 1866 to 1877 and 2046 of 1973 which have been filed by the Aryodaya Spg, & Wvg. Mills Co. Ltd. and other parties involve substantially the same question which arises in appeals, thou.gh some of these writ petitions relate to the subseql\\ent period of 1971-72. Writ Petition No. 74 of 1972 filed by the Ahmedabad Electricity Co. Ltd. involves an additional point regarding its liability to pay property tax which has been levied on the ground that it o:cupies land below the surface for underground cables.\n\n/ \\\n\n222 SliPREME COURT REPORTS .l.1975] 3 s.c.R.\n\nReversing the decision of the High Court,\n\nHELD : ( i) As the affidavit filed on behalf of the re; pondents disclo; s that the factual position as it existed refore th,: promu gation of Ordinance 6 of 1969 was that the provisions of the Bombay Rwt Ac~ were not tai(on into account in determining the rateable value, there would b0 no escape frcm 1he conclusion that no differential treatment has been meted out to pending cases in clause (i) of s. 20A). Ti)ere is a presumption of rhe constitutional validity\n\n-0f a statutory provision. In case any party assails the validity of any provision B on the ground that it is violative of Art. 14 of the Contitution. it is for that party to make the ne::essary averments and adduce material to show discrimina- 1ion violative of Art. 14. No a1-erments were made in the petitions before the High Court by the petitioners that the assessmnts before the coming into force of Ordinance 6 of 1969 had been made by taking into account the rent restriction provisions of the Bombay Rent Act. It is extremely hazardoui to decide the question of constitutional validity of a provi; ion on the basis of the supposed existence of certain facts by rnistng a presumption. lt is very clear .that the Hi&h Court has acted on an incorrect u.mtmption. [236G-23'.'El C\n\nAssessment Committee of the Metropolitan Borough of Poplar v. Roberts [1922] 2 A.C. 93, Gu/am Ahmed Rooo v. Bombay Municipality A.Ul. 19Sl Bom. 320 and The Corporation of Cairn/la v. Sm. Padma Devi and Ors. [1962] .3 S.C.R. 49, referred to\n\n(ii) Classification by treating decided cases as belonging to one caitcgory and pending ca>es as belonging to another category is reasonable and not per se offensivi: to Art 14 of the Constitution.\n\n[238H-239A] D\n\n\n(iii) The scheme of the Corporation Act appears to be that in the case of premises used solely for public purposes and not intended to be med for purpo!!CS of profit or in the case of premises intended to be used for residential or charitable or religious pu.rposes in respect of which conservancy tax is payable by the Government, the rat: of conservancy tax should be lower \\compared to the\n\nrate of general conservancy tax'. What is required by s. 129 is that before determining the rates of cod'servMicy tax for different categories of propertie~ the Corporatio11 should find out the total expense it would have to incur for the various purposes mentioned in clause (b) of that section.\n\nAfter having ascertained the total expccse it would be permi11Sible to the Corporatton to fix different rates of conecrvaccy tax for v1ulo11s categories of properties. It b not essential except !n cues me11tloned in sub.sections (2) and (3) of s. 137 that the rate of conservancy tax for a particular category of properties should 'be such as wouad be Nlated only to the expense for conrvancy mvii:<! for\n\nthat particular category of properties. Clause lb) oi s, 129 al•so takes into .account the expecse required for efficiently maintaining and repairing the municipal drains and for finding out the total expenditure for .conserva11cy Service.\n\nThe High Court. was, therefore, in error in striking down the resolution passed by the Corporation. [242E-F; 244F-H; 245B-C] .\n\n(iv) The \"opinian of Corporation\" mentioned in clause (b) of section 129 'is formed after budget estimates are prepared in accordance with Ss.\n\n!~S. 96 and 100 of the Corporations Act. The entire procedure provides built-insafeguards and lays down adequate guidelines in the matter of taxation. lt cannot, therefore, be said that the legislature has not prescribed any guiding principle for the Corporation for determining the rates of conservancy tax. f245FG. H-246Al\n\n(v) The bar created by s. 406(2)(c) to the entertainment of the appeal by a person who has not deposited the amount of tax due from him and whe> i~ not\n\nANANT MILLS v. GUJARAT (Khanna, J.) 223\n\nable to show to the appellate judge tha:'. the deposit of the amount would cause him undue hardship arises out of his own omission and default. A disability or disadvantage arising out of a party's own default or omission cannot be taken to be tantamount to the creation of two classes offensive lo Art. 14 of the Constitution, especially when that disabiliiy or disall'lantage operates upon all persons who make the default or omission. Section 406 (2) ( e) i> constitutionally valid and, in as much as <he validity of s. 411 (bb) and r. 42 binges on the\n\nvalidity of sec. 406(2)(e) all the three provisions are constitutionally valid. f247D-248C. F-Gl\n\nHannah Cohen, Ex. of Sol, Cohen, De.cnisc•,1', and Da1•id E. Cohen, bitc1Te11er, l'elitimr, n & .. for., v. Beneficial Loan Corpo.a1io11 & Ors. 337 U.S. 539, referred lo.\n\n(vi) There can be no doubt that land in entry 49 of List JI would include underground 5trala . The word \"land\" has also been defined in clause (30) of s. 2 of the Corporations Act to include land which fa being built upon or is built upon or covered with water, benefits to a:rise out of land, things attached to the earth or permanently fastened to anything attached to the earth or permanently fastened t.o anything attachedto the earth and rights created by legislative cllllctmcnt over any street. This definition is of inclusive 11<1ture and does not exclude from its ambi't the underground strata of the land. The petitioner-company is in oo:upation of the land whetein underground supply line i~ laid. f249E-F: 250D-El\n\nE/ectJ'ic Telegraph Co. v. Salford O\"e:secrs, [1855] 11 Ex. 181, 186, Mysore A/denritn and Council/or3 of .the City of Westminster Ors. v.\n\nThe Sout/iem Railway Company, Tiu Railw.ay Assessment Authority and W. IJ. Smii/1 & Son, Limited &: Ors, 1936 A.C. 511, The Assessment Committe of Holywel/ Union & Anr. v. Ha/kyn District Mines Drainage Col, [1895] A.C. 117 Rex. v. Chelsea Waterworks Company, 5 B. & Ad. 156 and Reg v. foJiest Middlesex Waterworks, 1 E. & E. at p. 720, referred lo.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 752 to 755, 489 to 513, 643 to 684 of 1973 & 389 to 430 of 1974.\n\nFrom the Judgmei,1t and order dated the 4th December, 1972 of the Gujarat High Court in Sp!. Civil Appeals. Nos. 233, 239-241, 339, 488, 1634, 1635 and 1636 of 1971, and\n\nWrit Petitions Nos. 51, 60 to 74, 87 to 91, 157, 492 to 503, 533- 534 and 583 of 1972 and 1866 to 1877 &: 2040 of 1973.\n\nY. M. Tarkundt (In C. ~. Nos. 752, 489, 643, 389 and W.P.\n\nNos. 51 and 74/72), C. T. Daru and Ravinder Narain, P. C. Bhartari, K. M. DeUli and K. J. John, for the petitioners, (In all the W.Ps.) and Appellants (fa C.As. Nos. 489-513, ,752-755 /73) and respondent No. 1 (C.As. Nos. 643-47, 650-654, 658-664, 667-671, 674, 678, 679 Wld 681-684/73).\n\nF. S. Nariman, Additional Solicitor General of India, S. B. Vakil and /. N. Shroff, for appellants (In C.As. Nos. 643-684/73) and for respondent No. 3 (In all the W.Ps.) for respondents Nos. 2-4 (In C.As.\n\nNos. 489-497) respondent Nos. F4 (In C.As. Nos. 498-511) respondent Nos. 2-5 (In C.As. Nos. 512-513) respondent No. 2-4 (In C.A.\n\nNo. 752) respondent Nos: 1-4 (In C.A. Nos. 753-754) respondent Nos. 2-5 (In C.A. No. 755) and for respondent Nos. 1-3 (In C.As.\n\nNos. 389-430/74).\n\nSUPREME COURT REPORTS [1975] 3 s.c.R.\n\nM. C. Bhandare and M. N. Shroff, for the appellants (In C.As.\n\nNos. 389-430) respondent No. 7. (In C.A. No. 389-497, 512-513) respondent No. 5 (In C.As. Nos. 498-510) respondent No. 2. (In C.A. Nos. 643-678, 681-684) respondent No. 3 (In C.As. Nos. 679-\n\n680) respondent No. l (In C.As. Nos. 752-755) respondent No. 5 (In C.As. Nos. 753) respondent No. 6 (In C.A. No. 754) and respondent No. 4 (In all the W.Ps.)\n\nC. S.S. Rao, for respondent No. 5 (In C.A. No. 752/73).\n\nR. H. Dhebar and B. V. Desai, for respondent No. 4. (ln C.As.\n\nNos. 417-418174) and In C.As. No. 656-657 of 1973).\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J .-Questions relating to the constitutional validity of the different provisions of the Bombay Provincial Municipal Corporations Act (Bombay Act 59 of 1949) (hereinafter referred to as the Corporations Act) as amended by Gujarat Acts No. 8 of 1968 and No. 5 of\n\n1970 arise for determination in these appeals and the connected writ petitions. The Corporations Act was enacted by the Bombay legislature in December 1949 for the establishment of mU'ilicipal corporations in the cities of Ahmedabad and Poona. It was applied to Ahmiedabad on July 1, 1950.\n\nThe assessment of properties to property tax in Ahmedabad was made under the Corporations Act by making entries in the assessment books in accordance with the procedure prescribed in the Taxation Rules set out h1 Chapter VIII of Schedule A of the Corporations Act. 'A separate section of the assessment book was prepared by the Commissioner of the Corporation for each official year in respect of the assessment of property tax on certain kinds of properties like textile mills, factcries and buildings of university.\n\nThese properties were classified as special properties.\n\nThe rateable value of properties included in the Special Property Section was previously determined on a float rate for every 100 sq. ft. of the floor area. In arriviug at the figure of the rateable value, the plants and machinery situate upon lands and buildings were also taken into account as provided in clauses (2) and ( 3) of rule 7 of the Taxation Rules. There was some increase in the rateable value fixed by the Commissioner for the years 1964-65 nd\n\n1965-66.\n\nThe CommissiO'aer also made initial entries in assessment boo.k in respect of those properties f0r the year 1966-67. A number of writ petitions under article 32 of the Constitution were filed in this Court challenging the validity of the assessments for the years 1964-65 and 1965-66 as well as the initial entries for the year 1966-67. Those writ petitions were disposed of by this C0urt by a judgment delivered on February 21, 1967 and reporterl as New Manek Chok Spinning & Weaving Mills Co. Ltd. & Ors. v. Municipal Corporation of the Cit)• of A111nedabad & Ors.( 1) This Court allowed the writ petitions and held the relevant entries in the assessment books to be invalid. It was held in that case that the State Legislature had no competence under entry 49 of the State List i'.1 the Seventh Schedule to the Constitution to make a law for taxing: plant and machinery. Rule 7(2) was held to be beyond the legislative competence of the State. Rules 7(2) and\n\n(!) [1967) 2 S.C.R. 679.\n\nT!ll!IZ''''lnl!'! .. Pf\n\n1:1\n\nANANT MILLS v. GUJARAT (l(lwnnti, J.) 225\n\n( 3) were also held to t:>e invalid on account of excessive delegation of powers. by the legislature.\n\nUnder those rules the specification of the classes of machinery for the purpose of taxation was to be made by the Commissioner with the approval of the Corporation irrespective of\n\nthe questioa as to where they were to be found.\n\nThiS Court found that it depended upon the arbitrary will of the Commissioner as to what machinery he would specify and what he would not <and that he. was the only person who could examine this question as there was no right of appeal. Dealing with the method of levy of tal( on the basisof floor area, this Court observed that it was against the provisiorui of the Act •and the rules made thereunder altld that it had not been shown that conditions prerequiite for determination of the annual value on that basis had existed at the relevant time. The above method of taxation on the basis of floor area, it was held, was violative of 'llrticle 1-4 of the Constitution as it would in tho absence of cllSliification ol f&ctories on any rational basis give rise to inequalities.\n\nAlthough the Supreme Court directed the Corporation to prepare fresh <assessment lists relating to properties in the Special Property Section for the official years 1964-65, 1965-66 and 1966-67, the Coe poration was unable to do so in view of the decision of the High Court in the case of Ahdabad Municipality v. Keshavlal( 1) wherein it WM held that the Corporation had no power to assess and levy property tu for any official year after that year had anded. The legislature in order to get over this difficulty enacted Gujarat Act 8 of 1968 and by this amefading Act inserted inter alia new section 152A in the C0rpora tions Act.\n\nThe new section conferred power on the Corporation. to assess or re-assess property taxes if the original assessment was affected by a decree or order of a court da either of the grounds on which the Supreme Court !:rad set aside the es8essment for the official years 1964- 65, 1965-66 and 1966-67 in New Manek Chowk Mills case (supra).\n\nThe amending Act also substituted new rule 7 for the old rule which contained the offending clauses (2) and (3). Rule 21B was also inserted by the amending Act and the said rule permitted the Municipal .\n\nCommissioner to make fresh valuatie!.1 of properties <after the expiry of\n\ntho official year if preparation or completion of the assessment beloce the expiry of the official year were or would be affected on account of any order of a court. After the amending Act had come into force. the Corporation initiated proceedings for re-assessment of lands and buildings of the petitioners to property tax for the official years 1964- 65, 1965-66 alnd 1966-67. When notices were served on the petitioners to furnish return of the particulars, the petitioners filed petitions in the High Court challenging the validity of those notices. Those petitions were allowed by the High Court as per judgment dated July 3, 1969 on the ground that the demand for certain particulars contJained in the •,10tices was beyond the scope of rule 8 ( 1) . The contentioo of the petitioners in those petitions that no assessment could be_rn, ade after tho expiry of the official year was reoelled and it was held that the Corooration had the nower under section 152A to rassess lands and buildings of the petitioners to property tax for the official years\n\n19~65. 1965-66 and 1966-67 notwithstanding the expiration of those\n\n(.t) 6 G.LR. 228. 16-U79Su!)CI/75\n\n' 2zs Sl:JPll!EM! C6UltT REPORTS: U975] 3 s.c.ll.\n\nyeim. The High Court also held that the new section .did not stand in\n\nthe way of the petitioners getting refund of the property tu already paid. Appeal was filed in this Court against the above judgment by the Corporation. .\n\nThe Ahmedabad Corporation, it may be stated, used to pass :i resolution u'ilder section 99 of the Corporations Act determining the rate at whi:ch property tax would be levied for the particular official year. So far as conservancy tax was concerned, the rate determined by the Corporation was 3 per cent. A special rate of conservancy tax of 7t per c:ent was,, however, fixed by the Corporation for tht: official year up to 1966-67 for hotels, clubs, stable8'\\ theatres or cinemas or other large premises including mills and factories registered under the Fiactories Act and where fifty or more workmeii1 were employed in manufacture for all the shifts. For the official year 1967-68 the Corporation determined the rate of conservancy tax to be 3 per cent and a special rate of 9 per cent for the large premises mentioned above. The rate of general tax for ordin•ary property was fixed on a graduated scale but 011 properties used by textile mills the rate was uniform at 30 per cent. The powers of the Commissioner under the Taxation Rules were entrusted to the Deputy Municipal Commissioner by virtue of an office order issued under section 49(1). The Deputy Commissioner thereafter determined the rateable value of the lands and buildings of the petitioners. The petitioners preferred appeals against the order of the Deputy Commissioner determining the amount of property tax to the Chief Judge of the Court of Small Causes Ahmedabadl. The Chief Judge was, however, precluded from hearing those appeals since the amount of tax was not deposited by the petitioners. as required by section 406 ( 2) ( e) of the Corporation Act. The petitioners the:reafter filed petitions in the High Court challenging the '\"'1Hdity of the asses\n\nments made by the Deputy Municipal Commissioner for the official years 1966-67, 1967-68 and 1968-69. Those writ petitions were allowed by the Gujarat High Court as per judgment dated Octot1er 27,\n\n1969. It was held that section 49 of the Corporation Act did ncit con template delegation of judicial or quasi-judicioal powers by the Muni cipal Commisioner under taxation rule 18 and that disposal of complaints by the Deputy Commissioner was not permi.ssible. The High Court also declared section 406(2) (c) violative of article 14. Part of rule 42 which related to distress or >attachment for default in payment of tax was also struck down on the ground that it could not stand independently of section 406(2)(e). The fixation of special ratf: of 9 per cent for conservancy tax in respect of large premises including mills aad factories was also held to be illegal and void.\n\nThe officral year 1969-70 having in the meantime commenced, the Municipal Commissioner adopted under taxation rule 21 the entries of the official year 1968-69 as the entries for the official year 1969-70.\n\nComplaints were then filed by the petitioners against the amount of rateab1e value entered in the ssment books. During the pendency of those complaints, the. Governor of Gurarat promulgated Ordinance No. 6 of 1969 on ~:ember 23, 1969. The ordinance was rertaced by Gujarat Act No. 5 of 1970 which came into force with effect from March 31, 1970. The ordinance amel\\ded the definition of ratble ·\n\nANANT MILLS v. GUJARAT (Khanna, J.) 227\n\nvalue as well as section 49 with retrospective effect. It also contained certain valid'itins provisions. Gujarat Act 5 of 1970 was on the line • of Ordinance No. 6 of 1969, except in the ID!ltter of definition of rateable value. A number of petitions in the meantime were filed to challenge the validity of •the provisions of Ordinance No. 6 of 1969 and those of Act 5 of 1970.\n\nFor the official year ln0-71, the valuation was made in accordance with Gujarat Act 5 of 1970. A number of writ pe'itions were filed before the Gujarat High Court challenging the provisions . of Gujarat Act 5 of 1970 as well as the valuation for the year 1970-71.\n\nIn the meantime, on April 17, 1970 appeal filed by the Corporation against judgment .dated July 3, 1969 of Gujarat High Court was dismissed by this Court: The decision of this Court was given in Municipal Corporation of the City of Ahmedabad, etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc.( 1). It was held by this Court that under section 152A before the Corporation can retain an amount collected as property tax, there must be assessment according to law. As the impugned assessments were not in accordance with law, the Corporation was not entitled to retain that amount. This Court also struck down sub section (3) of section 152A which had been added by Ordinance 6 of 1969 and which gave power to the Corporation to refuse to refund the amount illegally collected despite the ordi; ir of the\n\ncourt\n\nIt may be stated that the dispute with which we are concerned in the present appeals and writ petitions relates to assessment to property tax of large premises like textile mills, and factories. One writ petition relates to an electricity company,\n\nBefore setting out the findings of the High Court and dealing with the questions which arise for determination in the appeals and writ petitions before us, we consider it appropriate to refer to some of the relevant provisions. Section 127(1) of the Corporations Act requires the Corporation to impose inter lia property taxes1 \"Property taxes\", according to section 129, shall comprise (a) water tax, (b) conservancy tax, and (c) a general tax. Clause (b) and the relevant part of clause ( c) of that section read as under :\n\n\"For the purpose of sub-sectipn (1) of Section 127 pro perty taxes shall comprise the following taxes which shall, subject to the exceptions, limitations and conditions hereinafter provided, be levied on buildings and lands in the City :-\n\n(a) ............... .\n\n(b) a conservancy tax at such percentage of their rateable value as will in the opinion of the Corporation suffice to provide for the collection, removal and disposal by municipal agency, of all excrementitious and pol~ luted matter from privies, urinals and cess-pools and for effiiently maintaining and repairing the munici- --. pal drams constructed or used for the receipition or\n\n(I) (1971] I S.C.R. 288.\n\nSUPREME COURT REPORTS [1975] 3 s.c.R.\n\nconveyance of such matter, subject however to the provisos that the minimum amount of sue~ tax to be levied in respect of any one separate holdmg of land or of any one building or of any one portion of a building which is let as a separate holding shall be eight annas pr mensem and that th<! amount of such tax to be levied in respect of any hotel, club or other large pwmises may be specially fixed under section 137; ( c) a general tax of not less than twelve per cent. of their\n\nrateable value, which may be levied, if the Corpora\" tion so determines, on a graduated scale\n\nProvided . . . . . . . . . . . .\n\nAccordng to section 99 the Corporation shall, on or bef01:c the twentieth day of February, after considering the Standing Committee's pr°\" posals in this behal( determine inter alia subject. to Iimi~ions and conditions prescribed in Chapter XI, the rates at which municipal taxes referred to in sub sec; tion (1 ) of section 12 7 shall be levied in the next ensuing official year. \"Official year\" has been defined in section 2( 44) D to mean the~ year commencing on the first day of April. Section 137 reads as under :\n\n\"(l) The Commissioner may, whenever he thinks fit, fix the conservancy tax to be paid in respect of any hotel, club, stable or other large premises at such special rate as shall be generally approved by the Standing Committee in this behalf, whether the service in respect of which such tax is levi-\n\nII: able be performed by human labour or by substituted means or appliances.\n\n(2) In the case cf premises used solely for public purposes and not used or intended to be used for purposes of profit or for residential or charitable or religious purposes in respect of which the conservancy tax is pavable by the Gov- F ernment the Commission:er shall fix the said tax at a special rate approved 21s aforesaid.\n\n(3) In any such case tbe amount of the conservancy tax shall be fixed with reference to the cost or probable cost of\n\nte collection, removal and disposal, by the agency of municipal conservancy staff, of excrementitious and polluted matter from the premises.\" G .section 150 relates to suppl 1ementary taxa'ion.\n\nClause (l) of sect10n 49 enables a Deputy Municipal Commissioner, subject to the orders of the Commissioner, to exercise such of the powers and oerform such of the duties of the Commissioner as the Commissioner shall fr?m time to time depute to him. Section 406 deals wi'h appeals. !\"-ccordmg to. clause (1) of section 406. subiect to the provisions heremafter contained, appeais against any rateable value or tax fi.xed or H charged under the Act shall be heard and determined bv the Judge \"Judge\" has been defined in clause (29) (as amended by Act g of\n\n\\ c\n\nANANT MILLS v. GUJARAT (Khanna, J.) 22 9\n\n1968) of section 2 to mean in the city of Ahmedabad the Chief Judge of the Court of Small Causes. Clause (e) of sub section (2) of section 406 states that no appeal shall be heard against a tax, or in the case of an appeal made against a rateable value after a bill ior any property tax assessed upon such value has been presented to the appellant, unless the amount claimed from rhe appllant has been d~-· posited by him with the Commissioner. Section 411 (as amended by Act 8 of 1968) makes provision for appeal to the 'High Court from a decision of the Judge in an appeal in certain contingencies.\n\nClause.\n\n(54) of section 2 defines \"rateable value\" to mean the value of any building or land fixed in accordance with the provisions of the Act and the rules for th1: purpose of assessment to property taxes. According to section 453, the rules in the schedule as amended from time to time shall be deemed to be part of the Act.\n\nChapter VIII of the schedule contains the Taxation Rules. According to clause ( 1) of rule 7, in order to fix the rateable value of any building or land assessable to a property-tax there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expeted to let from year to year a sum equal to ten per ce.nt of . the said annual rent, and the said deduction shall be in lieu of all allowance for repairs or on any other account whatever. Clauses (2) and ( 3) of that rule need not be set out as they were struck down by this Court in the case of New Manak Chowk Mills (supra). Rule 9 relates to the keeping of an assessment book in which shall be entered inter aliai every year the rateable value of buiklings and lands in the city of Ahmedabad determined in accordance with the provi!.ions of the Act and the rules as also the names of persons primarily liable for the payment of property taxes, if any, leviable on each such building or land. Clause ( 1) of rule 42 reads as under :\n\n\" ( 1 ) If the person on whom a notice of demand has been served under rule 41 does not within fifteen days from such service pay the sum demanded or shows sufficient cause for non-payment of the same to the satisfaction of the (', ommiss!oner and if. no appeal is preferred against the said tax, as heremafter provided, such sum, with all costs of the recovery, may be levied under a warrant in Form H or to the like effect, to be issued by the Commissioner, by distress and sale of the moveable property of the defaulter or the attachment and sale of the immovable property of the defaulter or, if the defaulter be the occupier of an.y premises in respect of which a property-tax is due, by distress and sale of any moveable property found on the said premises or. if the tax be due in respect of ny vehicle, boat or animal by distress and sale of such vehicle, boat or animal in whomsoever's ownership, possession or control, the same may be.\"\n\nW, e may now set .out the material chan.ees brou.itht out in tho Cor- . porat10ns Act by Gu.iarat Act No. 5 of 1970. Seetions 2, 4, 6. 7,\n\n10, 11, 12 and 13 of (2) of the amending Act read as under:\n\n\"2. In the ombay Provincial Municioal Corporations\n\nAct~ 1949 (he rem after referred to as 'the principal Act') in section 2,- '\n\n230 SUPREME COURl' REPORTS [19751 3 s.c.R.\n\n(1) before clause (1) the following clause shall be, and shall be deemed always to ha.ve been, inserted, namely :-\n\n, ( 1 A) 'annual letting value' means,-\n\n(i) in relation to any period prior to 1st April, 1~70, the annual rent for which any building or lnd or pres1:s, exclusive of furniture or machin1ry cona1ned0 or situate therein or thereon, might, if the Bombay Rents, Hotel and\n\nLodging House Rates Control Act, 1974 were not .in forc:e, reasonably be fxpected to let from year to year wtth reforence to its use :\n\n(ii) in relal!ion to any other period, the annual rent for which any building or land or premises, exclusive of furrriture or machim:ry contained or situate there in or thereon, might reasonably be expected to let from year to year with referenc:e to its use;\n\nand shall include all payments made or agreed to be made to the owner by a person (other than the owner) occupying the building or land or premises on account of occupation, taxes, insurance or other charges incidental thereto\n\nProvided that, fur the purpose of sub clause (ii),-\n\n(a) i.n respei:t of any building or land or premises the standard rent of which has been fixed under section\n\n11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the annual rent thereof shall not exceed the annual amount of the standard rent so fixed;\n\n( b) in the case of any land of a class not ordinarily le:t,\n\nthe annual rent of which cannot in the opinion of the Commissoner be easily estimated, the annual rent shall be deemed to be six per cent of the estimate:d market value of the land at the time of assessment;\n\n( c) in the case .gf any building of a class not ordinarHy let, or in the case of any industrial or other premisc:s of a class not ordinarily let. or in the case of a class\n\nof . such pr7mies the building or buildings in which are not ordmar1ly let, if the annual rent thereof cannot in the opinion of the Commissioner be easily estimated, the annual rent shall be deemed to be six Jl(:r c.ent of the total of the estimated market value, at the time of the assessment, of the land on which such building or bu!ldigs sta~ or,. as the case may be:. of the land which 1s comprised m such premises, and the stimated os.t. at the time of the assessment, of\n\n~:reeling th.e ?uildmg, or as the case may be, the buildmg or bu1ldmgs comprised in such premises;'.\n\nc.:\n\nANANT MILLS v. GUJAM.T (Kha1111a, J.) 2 31\n\n(2) for clause ( 54), the following shall be, and shall be deemed alW!lYS to have been, substituted, namely :.-\n\n' ( 54) 'rateable value' means the value of any building or land fixed, whether with reference to any given premises or otherwise, in accordance with the provisions of this Act and the rules for the purpose cf assessment to property taxes;'\n\n4. In section 49 of the principal Act, in sub-section (1),- ( 1) for the words 'such of the duties of the Cqmmissillncr' the words 'such of the duties of the Commissioner, including powers and duties of a judicial or quasi-judicial nature,' shall be, and shall be deemed always to have been,\n\nsubstituted; .\n\n(2) after the first proviso, the following further proviso shall be, ind shall be deemed always to have been, adde<; l, namely :-\n\n. 'Provided further that nothing in this sub-section shall be deemed to empower the Commissioner to issue any order regulating the exercise of powers or performance of duties of a judicial or quasi-judicial nature deputed by him.'\n\n6. In section 129 of the principal Act, to clause (b). the following proviso shall be, and shall be deemed always to have been, added, namely:-\n\n'Provided that when determining under section 99 or_ section 150 the rate at which conservancy tax shall be levied for any official year or part of an official year, the Corporation may determine different rates for different classes of prd\n\nperties.'\n\n7. In section 137 of the principal Act, to sub-section (1) the fol.lowing proviso shall be added, namely :-\n\n'Provided that if the Corporation shall have determined for any official year any different rate of conservancy tax for any class of properties to which any of the properties referred to in this sub-section belongs, the Commissioner shall not, without the previous approval of the Corporation, fix, for such official year or part thereof, the conservancy tax to be paid in respect of any property beloging to such class for which such different rate may have been determined by the Corporation, at any other different rate U'lder this subsection.'\n\n10. In section 406 of the principal Act, in sub-section (2) ,- ( 1 ) for the words 'shall be heard' the words 'shalt be entertained' shall be substituted; and\n\n(2) the following proviso 'wll be added after clause (e), namely :-\n\n'Provided that where in any particular case the. Judge is of opinion that the deposit of tho amount by the appellant\n\n232 SUPP.IME COURl' REPORTS [l 97 ~) 3 SoC, R.,\n\nwill causci undue hardship to him, the Judge may in his dis cretion dispense with such deposit or part thereof, either unconditionally or subject to such conditions as he may deem. .\n\nfit.' '\n\n11. ln s~; tion 411 oi the principal Act, after clause (a), tho following clause shall be inserted, namely :-\n\n\"(bb) from any order of the Judge under the proviso to sub-se:ction (2) of section 406; and;\"\n\n12. In Schedule A to the principal Act, in Chapter Vlll,-\n\n(i) in sub-rule (3) of rule 7, for the words annual rent\n\nfor which such building, land or premi&es might Isonably c be expected to let from year to year a sum equal to ten pe1 cent of the said annual rent' the words 'annual letting valllAI\n\nof such building, land or premises a sum equal to ten pol' cent of such annual letting value' shall be, and shall be deemed alway11 to hav1e been substituted; and ·\n\n(ii) in sub rule (1) of rule 42, for the. words is preferred' D the words 'is prderred or entertained' shall be substituted.\n\n13. Notwithstanding anything contained in any judgment, deoreo or order of any court or tribunal or any other authority,-\n\n(1) .............. ..\n\n( 2) no determination of any special or different rate of conservancy tax by a Municipal Corporation constituted by or under the principal Act in respect of any hotel, club, stable, industrial premises or other large premises in exerciso or purported exercise of its powers under any of the provi~ sions of the principal Act, at any time before the commenc&-\n\nment of . the said Ordinance, shall be deemed to have been invalidly made by reason of the Corporation having no power to determine such rate at the time. when such determination was made; and any such determination shall be deem ed to be valid and shall be deemed always to have been validly made under the provisions of the principal Act as amended by thfa Act as if this Act had br..en in force at the timo when such determination was made; and no such determination of different or special rate of conservancy tax, or any entry of tax made in any assessment book pursuant thereto; or any levy of such tax or bill or notice of demand or distresii\n\nor attachment issued or execu'ed for collection of such tax, shall be clled in question in any court or before any tribunal or authonty mrely on the ground that the Corporation had no power or authori•y to determine such different or special :ate of. conserv.ancy tax in respect of any hotel, club, stable, industrial o/em1ses or other large premises or on any ground consequential thereto.\" ·\n\nANA?iT MILLS V,1 GUJARAT (Khanna, J.) 233\n\nThe High Court after protracd hearing . which wo aro given to understand lasted for 21 days besides 4 days for judgment whilo partly allowing the petitions filed before it under article 226 of tho Cons9nt !ion made the followng declaration :\n\n\"(i) Sectfon 2( lA) clause (i) is valid so far as it is applicable to the officii:I year 1969-70 but it is null and . void in so far as it applies to the official years from !he commencement of the Corporations Act upto and including tht official year 1968-69, on account of infraction of artide 14.\n\n(ii) Proviso (c) to section 2(1A) clause (ii) is not violative of article 14 and is constitutionally valid.\n\n(iii) Section 49 does not suffer from the vice of unreasonableness and is constitutionally valid and so also is section 13 ( 1) of Gujarat Act 5 of 1970.\n\n(iv) The proviso to section 129(b) is not violative. of article 14 nor does it sufl'er from the vice of excessive delegation of legislative power.\n\n(v) Section 13(2) of Gujarat Act 5 of 1970 i~ not violative of article 14 or article 19(1)(f) and cannot bo challenged as constitutionally invalid.\n\n(vi) Section . 406 ( 2 )( e) and section 411 ( bb) ure null and void as beinp; in contravention of article 14: Rule 42 of the Taxation Rules is also ultra vire$ and void in so far llfl it provides that if an appeal is preferred or entertained against the tax, warrant shall not issue for the recovery of the amount of tax.\n\n(viii) The Re., olutions passed by the Corporation for the official years 1967-68, 1968-69, 1969-70 and 1970-71 to the extent to which they fix the rate of conservancy tax at 9 per cent inter alia in respect of textile mills and factories belonging to the petitioners are ultra vires the· proviso to section 129(b) and the rate of conse1'\\lancy tax applicable in respect of these textile mills and factories must, therefore be taken to be the general rate of 3 per cent.\"\n\nCivil appeals Nos. 489 to 513 and 752 to 755 of 1973 have been filed in this Court by the _petitioners before the High Court against the judgment of that court in so far as the court has upheld the constitutional validity of the impugned provisions. Civil appeals Nos. 643 to 684 of 1973 have been filed by the Municipal Corporation of tllie\n\nCity of Ahmedabad and,. others against the above judgment in so tar as the High Court has struck down the impugned provisions and the Resolutions. Civil appeals No. 389 to 430 of 1974 have been filed\n\nby the State of Gujarat ainst the judgment in so far as the High Court has struck down the impugned provisions. Writ petitions Noe.\n\n51, 60 to 73, 87 to 91, 157, 492 to 503, 533, 534 and 583 of 1972 as also writ petitions Nos. 1866 to 1877 and 2046 of 1973 which have been filed by the Aryodaya Spg. & Wvg. Mills Co. Ltd. m.d other parties involve substantially the same question which arises in\n\n234 !jUPRliMI\\ COlJ!tT IU!!IORTS (197SJ 3 s.c.1t\n\nuppeals, though some <>f these writ petitions relate to the subseqnent period of 1971-72. Writ petition No. 74 of 1972 filed by the Ahn11da bad FJertricit:y Co, Ltd. involves an addition11l point regarding; its liability ttl pay property tax which has been levied on the ground that it occupies lan.d below the surface for underground cables.\n\nThis i udgmet would disposr.~ of all the appeals and writ petitions.\n\nThi: first important. question which arises for de.termination is whether clause (i) of section 2(1A) is violative of article 14. Acol)t'ding to this clause, \"annual letting value\" means in relation to any period prior to 1st April, 1970 the annual rent for which any buildil18 or land or premises, exclusive' of forniture or machinery 1ontained c:ir aituate therein or th1reon, might, if th1~ Bombay Rents, Hotel and\n\nLodging Hou.e Ra~ Co11trol Al:t, 194 7 wer, e not in force, eanon nbly oo xpe1t1:d to lei: from year to year with reference to its use.\n\nAccordir1g to the petitioners, the operation of this clause 11ft'.e1:tcd only the aa~.:ssment proceedings pending on Decembe1 23, 1.969 when Ordin1mci: 6 of 1969 (which wa.s subsequently replaced by Act 5 of 19 '/O) came into force and did not affect the assessments which were fu1al and complct1d before that date. The said provision was thWl aaid to create rm arbitrary and i1Tatloni!l classification which had no reasonable< ncm1 with the object of levying the tax. As age.inst\n\nthe aoove, the folhlwing fou1 contention~ wre advanced on hehn!f of the Corporatiott : ( l) There is no discrin1ination in the matter of comp\n\nletc<l a&scss:ments and pending assessment because the prior h1.w did not require valuation to be restric!- ted to standard rent.\n\nThe impugned provision is merely declaratory of previow1 Rtate of law.\n\n(2) There is 110 discrimination in the matter of comp\n\n!eted asesRments and pending assessments because\n\nas a matter of fact valuation assessment.'! finalised before Deo; mber 23, 1972 w1ire in disregard of the provi&io1111 of the Rent Act. ( 3) Pending cMes constitute a c; lass by themselveg and\n\nany law which makes a distinction between decided cas1:s and pending cases is not violative of article\n\n14 of the Constitution as the above dlstlnctio11 i~\n\nbaed upon rational classification. ( 4) In any cuse so far as the year 1969-70 is concerne<l,\n\nthere is no discrimination or violation of article 14.\n\nThe High Court :ejected the first three contentions urged on behalf of the C<1rpora!ton but accepted the fourt contention. Accordi11f6y, it held that clause (i) of section 2(1A) was valid in so far as it was applicable to the official year 1969-70 but was null and void i11 '° far as it arplied to the previous years on account of the infraction of article l. 4.\n\nRegarding. clause ( c) of the proviso to aub-clause ( 2) of clause (1 A) of llCCtiOn 2 of the Act, the High Court held th!lt it is only if\n\nANAN'r MILLS v. GUJARAT (Khanna, J,)\n\nLhc annual l'cnt having regard to the P.rovisions of the Bombay Rent Act cnntlot be easily estimated that t.te Commissioner can adopt the basis of the valuation set out in proviso to cla11s1: (c). Mr. Tnrkundc \\r.R.rncd counsel for the petitioners has not pressed the attack on the t:f•11s•itutional validity of clause (c) becauc, according to him, it is a:'t known as to which property would be covered by that clauses a8 construed by the High Court.\n\nLikewise, so far as the constitutional validity of section 49 of thl) Act is concerned, the attack has not been pressed on behalf of the petitioner-appellants. Mr. Tarkunde has also pointed out that despite the decision of this Court in Man.ek Chowk Spg, & Wvg. Mills case\n\n(supra) in making assessments attempts are being made by the Cor poration to inc, lude some structures which constitute plant Emd machinery as part of building. The learned counsel, however. con cedes tliat this would be question of fact depending upon eacl1 case.\n\nHe accordingly states that his clients would l.i necessary agitate the matter in appeal.\n\nIt hns been argued befoxo us by the Additional Solicitor Gcnernl, Mr. Vakil and Mr. Bhandafe on behalf of the Corporation i.s well as the State Government that the High Court was m error in holding thrlt clause ( i) of section 2 (1A) was violative of article 14 in respect of the, sears prior to the official year 1969-70, As 11gai115t that, Mr. Tarkunde on behalf or the petitioners (the word \"p ... dtil)ncrs\" would cover not only the petitioners in this Court but also Lhosc who were the petitioners in the High Court) has supported the finding of the High Court in this re.spect. Mr. Tarkunde in his own turn has\n\na.qsailed the finding of the High Court in so far as it has held that\" clause (j) of section 2(1A) is not. violative 0£ article 14 in r\\'-spect of the.year 1969-70. After hearing the learned counsel for Lhe parties\n\nwe find considerable force in the submission made on behalf of the Corporation and the State Government.\n\nThe first question which 'llries for consideration i11 th~ abO\\',! Cl)ll\" text is whether there ig any discrimination in relation to the ttsses~·\n\nments for th~ period prior to April 1, 1970 between pending . Cl\\RC~ 1md the crue~ m which n:; sessment had already been eomplcfctL\n\nS1) f(1r as this usr>ect i~ conc11med, we find that in the cnse of Assr:wsnumt Committee of the Metropolitan Borough of Poplar v. 1Joben1 (!) the\n\nHouse of L<lrds held by majority that in arriving at the valuotion for the purposes of the Valuation (Metropolis) Act, 1969, of a heredi.ta\n\nment to which the Increase of Rent and Mortgage interest. (Res'tric tio.1) Act 1920 applies. the maximum gross value to be assig11cd to that hercditament is not limited to the standard rent of the heredit'a ment together with the additions thereto permitted by the latter Act.\n\nIt was further held that the above mentioned Act of 1920 is not to be taken into account in determining the valuation for rating purpose> of the hereditaments to which it applies.\n\nFollowi11g the above decision of the House of Lords a Division Bench of the Bombay High Couri. held in the case of Gulom Ahmed Rogay v. Bombay Mli, nicipallty( 1\\\n\n.. ·-·---·-··-·---·-··----.. ··-·-·-·~-·\n\n(I) [1922] 2. A.C. 93.\n\nSUPREME COURT REPORTS [1975) 3 i~.C.R.\n\nthat ill univi.ug at the rutca0lc va; uc ior purposes of , ection 1:54(1) -0f the City of Bombay Municipal Act, 1888 of property to which the\n\nBombay Rents, Hotel & Lodging House Rates Control Act, 1947 applies the maximum value to be assigned to the property. is 'JlOt to be limited to the maximum standard rent of the property together with additions thereto permitted by the latter Act. Sinular question thereafter arose i',1 the cas1~ of The Corporation of Caiuma v. Sm. Padma\n\nDebi & Ors(2). This Court in that case was concern<:d with the provisions of section 127 (a) of the Calcutta Municipal Act, according\n\nto which the annual rental value of land and the annual value of any building erected for Jetting purposes or ordim.ll'ily ict, ilatl be dc:emed\n\nto be tbe gros.5 annual rent at which the .land or building might at the tjme of assessment reasonably be expected to let from year to year, less, in the. case of a building, an allowance of ten per (; Cflt for the co.; t of repairs and for all other expenses necessary to maintaiu the\n\nbuilding in a state to command such gross rent.\n\nIt was held by this Court that on a fair reading of the above provision the rental value cannot be fixed higher than the standard rent under the. Rent Control Act. It w<1s further held that the words \"gross annual rent at which the land or building might at the time of assessment reasonably be expected to Jct from year to year\" imply that the rent which the •, mdlord might realise if the house was let is the basis for fixrng the annual value of the building. The criterion is the rent realiable by the landlord and not the value of the holding in the na:ids of the t~:nent.\n\nThe value of the property to the owner is the standard in makin11 the\n\nassessment.\n\nThe Corporation, it was accordingly concluded, had no power to fix the annual value of the premises higher than the stan- dard rent.\n\nIt was argued o•.i behalf of the Corporation before the High Court tlYat no avermcnt had been made by the petitioners in the petitiom\" that the assessments which had been completed before the coming into force of Ordinance 6 of 1969 were made h•aving regard to the provisions of the Bombay Rent Act and that in the absence of such averments o case of discrimination could be said to have been made by the petitioners. The High Court rejected this contention because iin its opinion it would be reasonable to presume that the assessments were made keeping in view the fent restrictim provisions of the Bombay Rent Act.\n\nWe are unable to agree with the above approach of. the High Court.\n\nThere is a presumption of the constituti<Y.1al validity of a statutory provision.\n\nIn case any party assails the validity .of any provision on the ground that it is violative of article 14 of the Constitution, it i:s for that party to make the necessary averments and adduce material to :'how discrimination violative of article 14. No averments were made in the petitions before the High Court bv the petitioners that the assessments before the coming into force of Ordinance 6 of 1969 had\n\nbeen made by taking into account the rent restriction provisions of the Bombay Rent Act. Paragraph 2B and some other paragraphs of peti-\n\n( 1) ATR 1951 Bombay 320.\n\n'(2) [1962) 3 SCR 49.\n\nANANT MILLS v. GUJARAT (Khanna, /.) 237\n\ntion No. 233 of 1970 before the High Court, to which our attention. was invited l:ly Mr. Tarkunde, also do not contain that averme1.1t. No material on this factual aspect was in the circumstances produced. either on behalf of the petitioners or the Corporation. The High Court, as already observed, decided the matter merely on the basis of a presumption.\n\nIt is, in our opinion, extremely hazardous to deci<le the question of the constitutional validity of •a provision on the basis of the supposed exisknce of certain facts by raisi•ag a presumption.\n\nThe facts about the supposed existence of which presumption was raised by the High Court were of such a nature that a definite avrmcnt could have been made in respect of them and concrete materioal could have been produced in support of their existence or non-existence.\n\nPresumptions are r.esorted to whe.1 the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact. When. however, the fact to be established is of such a nature that direct evidence •about its existence or nonexistence would be availab1e, the proper course is to have the direct evidence rather than to decide the matter by resort to presumption. A pronouncement about the constitutional validity of a statutory provision affects not only the parties before the Court, but all other parties who may be affected by the impugned provision. There would, there-. fore, be inherent risk in striking down an impugned provision without having the complete factual data and full material before the court.\n\nIt was therefore, in our opinio11, essential for the High Court to ascertain and fa1d out the correct factual position before recording a finding that the impugned provision is violative of •article 14. The fact that the High Court acted on an incorrect assumption is also borne out by the material which has been adduced before us in the writ petitions filed under article 32 of the Constitution.\n\nIn the affidavit of Jayantilal Maineklal Shah, Assessor •and Collector of the Corporation, filed on behalf of the respondents in these petitions. the factual position has been brought out at length. According to the affidavit, after . the Corporation had been constituted with effect from July 1, 1950 the Commissioner kept for every offici•al year an assessment book as contemplated by rule 9 of the Taxation Rules .. The rateable value of lands and buildings in Special Property Section were first determined by the municipal valueis on Contractor's Theory in accordance. with the methods prevailing under the English law of rating. The owners of lands •a•ad buildings which were valued on Contractor's Theory filed appeals.\n\nDuring the pendency of the appeals, the authorities concerned agreed to refer the question of determination ol' the rateable values to the arbitration of the arbitrators, oae appointed by the Corporation and the other appointed by the taxpayers. On disagreement between the two arbitrators the matter was referred in 1953 to Shri H. V. Divetia. a former Judge of the High Court of Judicature at Bombay as umpire. Shri Divetia held that .!fat rate floor area method which was being adopted by the Municipal Corooration of the city of Bombay in similar cases. was the proper method. The municipal authorities consequently adopted that method. The award of Shri Divetia was effective only till the official year 1954-55, but its application was extended by agreement betwee1,1 the Jl'<lrlies up to the year 1958-59. The municipal authorities continued to value the lands\n\nSUPRBMI! COURT REPORTS [l 97S] 3 s.c,!l.\n\nand buildings aforesaid on the fiat rate floor area method for the year 1959-60 and and onwards to prevent any dispute being raised. The affidavit further shows that notwithsttmding the decision in Pcidma Debi's case (supra) the Corporation continued as before to valui;: the properties included in the Sp'ecial Property Section on the flat rate lloor area method. Both the valuers •as well as the persons liabl.e to pay property taxes were not conscious of any impact of rent restrktion for the purposes of property taxes. The Collector has denied that in dctcrmini1.1g the rateable value the Municipal Commissioner had been taking into account th1~ standard rent of the building or !•and or was following the principle that the rent restricted by Jaw was the mee1sure of the true rent of the building.\n\nThere is no material before us to show that the factual pm:ition is in nny wuy different frcirn that brnught out in the uffiduvit of the Asses\n\n~01 untl Collector of the Corporution. Mr. Tarkunde hns rl!ferrcd to three orders dated March 22, l 969 of the Deputy Municipal Commi~·\n\nioncr whereby the mtiablc vnluc as initially fixed was reduced on complaint filed by the ratcpnycr. It would 11ppcar frorn the orders thut in reducing the ratc:nble value the Deputy Municip\"ll Commissioner wok into account the rental vnluc. 'The above three orders, 1,1 our nph1ion, can hardly be of nny help to the petitioners because there is\n\nnothing to how thut the Deputy Municipal Commissioner while 111ak ing those orders took into account the standard rent end the restrictions ph1ccd on the increne i:n rent by the Bombny Rent Act.\n\nMr. Tnrkunde then urge~ that the material which has been placed before this Court regarding the factual position was not before thE: High Court and as such this Court should not disturb the finding of tho High Court on the constitutional validity of clause (i) of cction 2(1A). We are unabl'~ to accede to this submission. The validity of the abow clause has also been assailed in the writ petitions flied before\n\n11s nnd in decklin$ thoe writ petitions, wr. cannot refuse to take into uccotmt tho mntcr1al which has been placed before us. As that mate\n\nrin1 dicloscs thnt the f!lctunl pc, isition ns it exiRtcd before tho prornnl gntion of Ordinnuce 6 t1f 1969 WM that the pnwiions of the Bomboay Rent Act wcrn not tnken into nccount ln determining the ratenblc value, there would bc no ccupc from the conclusion that no dlfl'crei.i\n\ntinl treatment hus been nlt'tcd, out to pending cam in clnuse (i). l't Is plnin that the impugned provision cannot be held to be violutive l)f nrticle J 4 in the appctals filed against the judgment of the High Court a.id comtitutionally valid in the writ petitionR. As the High Court decided the matter without having the full and complete data beforn it and as such data is avallable to us, the co>,1tention that we should not take that data into account, in our opinion, is wholly untenable. We would, therefore., l1old that there is no material on record as might justify the infere,1cc that 1 differential hostile treatment has been meted out in pending cases.\n\nT11e very boasis of striking down the impugned provisions on the ground of being violative of article 14 wquld thus disappear.\n\nApart from the abov1~. we are of the l'>pinion that classification hy treating decide<.! cases as belongi.ng to orie category and pending Calles\n\nANANT MILLS \\I, OUJARAT (Klla1111a, /.) 239\n\nas belonging to another category is reasonable and not per se ot!ensivc to Article 14.\n\nlt is well-established that article 14 forbids class legislation but does not forbid classification. Permissible classification must be found cd on an i'.1telligible dift'erentia which distinguishes persons or things that are grouped together from others left out of the group, and the differentia must have •a rational relation to the object sought to be achieved by the statute in question.\n\nIn permissible classification mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is c<,1ough. If there is equality and uniformity within each group, the law will not be condem,1ed as discriminative, though due to some fortuitous circumstances arising out of a peculiar situation some included in a class get an advantage over others, so long ns they are 1;1ot singled out for special treatment. Taxiation law is 11ot 1m exception to this doctrine. But, in the application of the prlnclple.t1,\n\nthe comts, In view of the inherent complexity of fiscnl adjustment of diverse elements, permit a l•arger discret1on to the legislature in the matter of classification, so long ns it ndheres to the. fundamental princi pies underlying the said doctrine. The power of the legislature to classify is of wide range nnd flexJbility so that it can ndjust its system of taxation in all proper and rensoniable wnys (see Ram Krishna Dalmla v, Shri Justice S. R. Tendolkar( 1) and Klumdine Sht1h Bhat v.\n\nAgrlculutral Income-tax Officer, Kasllragod( 2). Keeping the above principles in view, we find no violation ohrticle 14 in treating pendin!1, cases as a class different from decided cases. It cannot be disputed that so far as the pending cases covered by clame ( i) are concerned. they have been nll treated nlike. In the case of Rao Shiv Bahadur Singh v. State of Vindh.va Pradesli(B) this Court obsetved :\n\n\"But there is no reason why pe.nding proceedings cannol be treated by the lcgilature a~ a class by themclves h•.wing regard to the exiµcncies of the situation which ; uch pendcncy itself calls for. There can arise no question ns to such a\n\naving proviAion i1Mringing article 14 so lon~ as no scope is. left for onv further dic:riminnl ion int1'I' .r irn bctwen pernons affected by such pending mnwm.\"\n\nTn Hash/sin.I? Manufact11rln, q Co. Ltd. v. Un/011 ()f l11dhi(') the consti .. tulitinal validity of cction 2SFFF of the Jndutrial Diputes Act, 1947 WM nssailed. Thnt ectio'n nw1dc a diMinction between ~'rnployers who had closed their undertakings on or before Novt-mbl'r 28, 1956 and those who closed their undertaking~ after that date. It wns urged that the above provision was violative. of article 14 of the Ccnstirntinn. The nbove contention was rejected •and it was observed :\n\n\"When Parliament enacts a law imposin~ a liability as flowing from certain transactions prospectively, it evidently makes a distinction between those transactions which\n\n8TC covered by the Act and those which •are not covered by the Act, because they were completed before the date on which . -·---------\n\n(1) [19591 S.C.R. 279.\n\n(2) rJ9631 3 S.C.R. 809.\n\n(3) [1953] S.C.R. 1188. 1197. ( 4 l (1960] 3 S.C.R. 528.\n\nSUPRBMI! COURT REPORTS\n\n[1975] 3 6.C.R.\n\nthe Act was enacted. This differentiation, however, does not . amount to discrimination which is liable to be struck dow:n under article 14. The power of the legislature to impose civil liability in respect of transactions completed even before the date on which the Act is enacted does not appear to be restricted. If, as is conceded-iand in our judgment rightly -by a statute imposing civil liability in respect of postcnactment transactions, \"lo discrimination is practised, by a statute which imposes liability in respect of transcti9ns which have taken place after a doate fixed by the statute, but before its enactment, it cannot be said that discrimination is practised.\"\n\nln the case of Jain Bros. & Ors. v. The Union of lndia &: Ora.(') it\n\nwas urged on behalf of the appellants that dause (g) of section 297(2) of the Income-tax Act, 1961 was violative of article 14 inasmuch. as in the matter of imposition of penalty, it discriminated between lwo seti of assessees with reforence to a particular date, namely, those whoe assessment had been completed before 1st day of April, t 962 >and others whose assessment was completed on or after that date. While upholding the validity of the above provision, this Court observc:d :\n\n\"Now the Act of 1961 came into force on first April\n\n1962. It repeakd the prior Act of 1922. Whenever a prior enactment is repealed and new provisions are C'11acted th1~ legislature invariaply Jays down under which enactment pend .. ing proceedings shall bC continued and concluded. Section 6 of the General Clauses Act 1897 deal:o with the effect of repeal of an enactmelilt and its provisions apply unless a different intention appears i<n the statute. It is for the legislatut1~\n\nto decide from which date a particular law should come int!l operation. It is not disputed that no reason has been suggested why pending proceedings cannot be treated by the\n\nlegislatwe us a class for the purpose of Art. 14. The date first April 1962 which has been selected by the legislature for tho purpose of els. (f) and (g) of s. 297 (2) cannot b<~ character:ised as arbitrary or fanciful.\"\n\nWe would, theri:forc, hold that clause (i) of section 2( I A) is co11stitutionally valid and not violative of article 14 in respect of nil the years .to which it has been made applic~.ble.\n\nLearned Additional Solicitor-General and Mr. V•ak:il on behalf of the Corporation have assailed the finding of the High Court i.1 so far G as it has held the resolutions passed by the Corporation for the: four years from 1967-68 to 1970-71 fixing the rate of conservancy tair 11t 9 i:er coot in r1!spect 01' textile mills, factories and other large pre:mise•\n\ninstead. of the: general rate of 3 per cent to be ultra vires the proviso to secti?n 129(b). lie. may in this ccMtcxt set out the material part of tho impugned resolution for the assessment year 1971-72 taking it H to be tl specimen for the four years in question : -- ·-··· --··· ·~-- ···- --,.. ..\n\n\nANANT MILLS v, GUJARAT (Kha1111a, J,) 24 l\n\n\"(c) Conservancy tax at 3'.lv of the rateable value of th.;: premises liable to tax under provisions of section 131 of the Act, subject, however, to the proviso that the minimum amount t? such tax to be levied ra respect of any one separate holdmg of land or of any one portion of a building which is let as a seP'arate holding shall be eight annas per month, and that the amount of such tax to be levied in respect of any hotel, club, stable or other large premises may be specially fixed under sectio,1 13 7,\n\n(d) As per the provisions of section 137, hotel, club, stables, theatres or cinemas or other large premises including mills and factories registered under the Factories Act, and where 50 or more workmen •are employed in manufacture in all the shifts, shall be subject to a conservancy tax at 9% of the rateable value.\"\n\nThe High Court in striki 111g down the four resolutions in so far as the mte of conservancy tax in respect of the large premises had been fixed at 9 per cent instead of 3 per cent, observed that the power to fix different rates of conservancy tax for different classes of properties is limited by the actual cost element and the differential rate of conservancy tax fixed for a particular class of properties must be related to the actual cost involved in supplying conservancy service to that class. The High Court agreed that 1'arge premises could be treated as a class and given differential treatment in the matter of fixation of conservancy tax.\n\nOn the question, however, a1> to what rate of conservancy tax should be fixed for large premises, the High Court observed that there was nothing in the affidavits filed on behalf of the Corporation which might show that the Corporation was guided by the actual cost of conservancy service supplied to each class.\n\nWe may at this stage advert to the scheme of the Corporation Act in the matter of levy of conservancy tax.\n\nClause (b) of section 129 states that the rate of conservancy tax shall be such percentage of rateable value as will ra the opinion of the Corporation suffice to provide the collection, removal and disposal, by municipal agency, of all excrementitious and polluted matter from privies, urinals and cess-pools and for efficiently maintaining and repairing the municip•al drai11s constructed or used for the receiption or conveyance of such matter. 1t is further provided that the minimum amount of such tax to be levied in respect of any one separate holding of la111d or of any one building or of any one portion of a building which is Jet as a sepamte holding shall be eight annas per mensem and that the amount of such tax to be\n\nlevied in respect of any hotel, club or other large premises may be specially fixed under section 137. Sub-section (1) of section 137 provides that the Commissioner may, whenever he thinks fit, fix the conservancy tax to be P'aid in respect of any hotel, club, stable or other large premises at such special rate as shall be generally approved by the Standing Committee in this behalf, whether the service in respect of which such tax is leviable be performed by human labour or by substituted means or appliances Sub-section (2) of section 137 directs the Commissioner to fix a special rate of conservancy tax in the case 17-L379Sup Cl/75 . -\n\nSUPREME COURT REPORTS [ l975J 3 s.c.R.\n\nof premises used solely for pL1blic purposes and not used or intended to be used for purposes of profit or for residential or charitable or religious purposes in respect of which the conservancy tax is payable by the Government. According to sub-section (3) of section 137, in any such case the conservancy tax shall be fixed with reference to the cost or probable cost of the collection, removal and disposal, by the agency of municipal consen•ancy staff, of cxcrementitious and polluted :matter from the premises.\n\nOne of the questions which has been agitated before us is as to whether sub-sect1cl'tl. (3) of section 137 deals only with case:s mentioned in sub-section (2) or whether it applies to cases coven:d both by sub-section (1) as well as sub-section (2) of section 137. Put ditkrently, the question is as to what is the significance of the opening woios \"In any such case\" in sub-section (3).\n\nAfter giving the matter our consideratiaa, we are of the view that sub-section (3) deals only with cases mentioned in sub-secti<M (2) of section 13 7 and is not attracted in cases mentioned in sub-section ( 1).\n\nSub-section ( 3) provides for •a concessional rate of conservancy tax because the amount of such conservancy tax has to be fixtxi with reference to the cost or probable cost of the collection, removal and dis. posal, by the agency of municipal conse:rvancy staff, of excrementitious and polluted matter from the premises. The rate of conservancy tax covered by section 13 7 ( 3) would be lower compared to the general rate of caaservancy tax under clause (b) of section 129 which would be fixed after taking into account not only the cost or probabfo cost referred to in section 137 (3) but also the expenses for efficiently maintaining and repairing the municipal drains constructed or used for the receiption or conveyance of excrementitious and polluted matter. The scheme of the Corporations Act appears to be that in the case of premises used solely for public purposes and not intended to be used for purposes of profit or in the case of premises intended to be used for residential or charitable or religious purposes in respect of which conservancy toax is payable by the Governmei,1t, the rate of conservancy tax should be lower compared to the rate of general conservancy tax. Sub-section ( 1) deals with large premises like hotels, clubs and stables which in the very nature of things require greater c:onservancy service, and it hardly stands to reason that the Legislature would contemplate the fixing of lower concessional rate of conservant:y tax i.1 the case of such premises. The opening words of sub-section (3) of section 137, viz. \"In any such case\" make it clear that its concessional provisions apply only to the immediately preceding clause, namely, section 13 7 ( 2) .\n\nAct 5 of 1970 added a proviso to clause (b) of section 129. According to that proviso, when determining under section 99 or section\n\n150 the rate at which conservancy tax shall be levied for a'ay official year or part of an official year, the Corporation may determine different rates for different classes of propeties. A proviso was also added to section 13 7 (1) by the said Act that if the Corporation shall have determined for any official year any different rate of conservancy tax for any class of properties to which \"<my of the properties referred to in\n\nANANT MJLJ.S V. GU.JARA'!' (K/ii1111111, J.)\n\nthis subsection belongs, the Commissioner shall not, without the previous e.:iproval of the Corporation, fix, for such official year or part thereof, the comervancy tax to be paid in respect of any property belonging to such cl'ass for which such <lilkrcnt rate may have been det<>r mined by the Corporation.\n\nPerusal of the different provisions shows that the rate of conservancy tax can be fixed under the following three provisions :\n\n( 1) A rate of conservancy tax (which for the sake of co11vcnicncc may be described as general rate of conscrva'Jcy tax) to be fixed by the Corporation under clause (b) of section 129. This is, how.over, subject to the proviso that it would be open to the Corporation to determine different rates for different classes of properties.\n\n(2) A special rate of conservancy tax to be fixed by the Commissioner in respect of certain large premises under sub-section ( J) of section 137. Such rate shall not without the previous approval of the . Corporation be different from the rate of conservancy tax for that class of properties in case the Corporation has determined the rate of conservancy tax for that class.\n\n(3) A special rate of conservancy tax i'.1 respect of premises mentioned in section 137(2) to be fixed by the Commissioner.\n\nThe following affidavit was filed on bchnlf of the Corporation in justification of the higher rate of conservancy tax of 9 per cent for lnrgc premises mentioned in the resolution :\n\n\"I submit that the properties in respect of which the Cor- E poration has determined the rate of conservancy tax at 9 per cent are properties belm1ging to a class the cost of providing conservancy services to which is proportionately higher than corresponding cost in respect of other properties. . ...\n\nI state that it is not necessary for the purpose of determini11g such higher rate that the Corporation or the Commissioner should separately work out the expenditure involved in deal- F ing with these properties. I deny that there is no valid justification for providing a higher rate of conservancy tax in respect of such properties. I submit that it is competent to the Corporation to take notice of the higher cost of eonservancy services required to be incurred in respect of these propertic> and to form an opinion on general facts-that the cost of prn\n\nviding conscrva.icy services to these properties would be higher and to what extent. I submit thoat matters of this type do not demand an arithmetical accuracy and broad compliance in matters of this type is sufficient for eomplfance with law. I submit that according to the estimate of the' Municipal Corporation, to meet the total expenditure of conservancy services, if 'a unit rate of conservancy tax was to be provided . .it was necessary to determine the rate of conser- H vancy tax at 4t per cent of the rateable value .. The corporation has, however. sought to distribute the incidence of conservancy tx equitably among all the lands and buildings. determine the general rate o1 conservancy tax at 3 per cent 18-L379SupCI/75 .\n\nSUPREME COURT REPORTS [1975] 3 s.c.R.\n\nand determine a higher rate of conserva•acy tax at 9 pct' cent\n\ni~ resp.ect of inustrial pr.emises and other properties as pro·\n\nv1dcd m the said resolut10n.\n\nI submit that the use of the premises has a material relation to the cost of providing c011 .. scrvancy services and to the maintwance and repairs thereof I submit that the hotels, clubs, industrial premises and other large premises n:ferred to in section 129 (b) •as well as in section 137 arc premises which need relatively larger conser·\n\nvancy services.\"\n\nThe question1 with which we are concerned in the present cases is whether it is sufficient, as has been argued on behalf of the Corporation, to find out the total expense to be incurred for conservancy ser-\n\n\\'ii:~ and thereafter to fix different rates for different categories of properties so th•at the tax raised is sufficient to meet the total expern.e, or whether, as has been held by the High Court, the different ratie of conserwacy tax fixed for a particular class of property under the pro\n\nviso to clause (b) of section 129 must be related to the actual cost in\\'Olvcd in supplying conservancy service to that class. In other words the question is whether the Corporation in determining the rates of consen\"ancy tax has to find out the total expense it would have to incur for the various purposes mentioned in section J 29 (b) in connection with the conservancy service and thereafter to raise that amount by fixi1ag different rates of conservancy tax for various cate gories of properties or whether the Corporation would have to find out separately the expense required in respect of conservancy service for rnch category of property and thereafter to fix such rate of coaservancy tax for a category of property as would be sufficient to meet the expense on the conservancy service for that particular category. To put it differently is the rate of conservancy i•ax for a class of property to be determined by taking into account the total expense which the Corporation has to meet for conservancy service in aia official year or is it to be determined by taking into account the expense which the Corporation has to meet for conservancy service for that particular class of property ?\n\nAfter giving the matter our consideration, we are of the view that what is required by section 129 is that before determining the raks of comervancy tax for different categories of properties the Corporntion should find out the total expense it would have to incur for the various purposes mentioned in clause (b) of that section. After having ascertained the total expense: it would be permissible to the Corporation to fix different rates of conservancy tax for various categories of properties. It is not essential, except in cases mentioiaed in sub-sections (2) and (3) of sectio1a 137 that the rate of conservancy tax for a particular category of properties should be such as would be related only to the expense for conservancy service for that particular category of properties. According to the proviso which has been added to clause (b) of section 129 of the Corporations Act by Act 5 of 1970, when detennini.1g under section 99 or section 150 the rate at which conservancy tax shall be levied for any official year or part of an official year, the Corporation may determine: different rates for different classes of properties. There is nothing in the above proviso which makes it obligatory\n\nN'<ANT MILLS v, GUJARAT (Khanna, J.) 245 -\n\nfor the Cdrporation to take into account scp•arately the cost of conservancy service for. each class of property for which conservancy tax is fixed. Apart from the fact that there is no statutory obligation for the Corporatia,1 to have separate estimates of the costs of conservancy service for various classes of properties referred .to in the above proviso with a view to allocate the cost amongst different classes of properties,\n\nit would not even be feasible. to do so for there would not be separate municipal drains for different classes of properties. As already mentioned clause (b), of section 129 alSo takes into account the exnense required for efficiently maintaini•ag and repairing the municipal drains for findi11g out the total expenditure for conservancy service. The High Court, in our opinion, was in error in striking down the resolutions passed by the Corporation fcir the official years 1967-68, 1968-69.\n\nI 969-70 and l 970-71 to the cxteo,1t to which they fixed the rate of conservancy tax at 9 per cent in respect of textile mills and factories because of the absence of sufficient data to show as to what would he the cost of conservancy service for that P'articular category of proper ties. The affidavit filed on behalf of the Corporation, extract from which has been reproduced above, shows that the rates of conservancy tax for the different category of properties have been fixed after mking\n\ninto account the total expense for the conservancy service. It is not possible to insist upon arithmetical accuracy in such matters. A broad and general estimate of the cost of conservancy service and the tax receipts after taking into account the relevant factors would satisfy the requirement of law.\n\nWe are unable to accede to the submission of Mr. Tarkunde that in view of the construction which we are placing upon the proviso to section 129(b), the proviso would be violative of article 14 of the Constitution on account of excessive delegation of_ legislative power. As already mentioned, the Corporation tnust keep in view the total expense it would have to i1acur for the conservancy service before fixing the various rates of co•,1servancy tax. The different rates of conservancy tax have thus to be related to the total cost of conservancy service to be borne by the Corporation. The \"opinion of the Corporation\" mentioned in clause ·b) of section 129 is formed after budget estimates arc prepared in a;:cordance with sections 95, 96 and 100 of the Corporations Act /\\.:cording to the above provisions the Commissioner is to make a stat. ·· tent of proposals as to the taxation which would in his opinion be nw-ssary or expedient to impose under the provisions of the Act in the Annual Budget estimate of the next official year. The Standi•ag Committee then considers the estimates and proposals of the Commissioner, and after having ob!'ained from the Commlssiouer. further details and information as they think fit, the Committee frames the budget estimates. The budget estiffi'ates contaioa proposals of rates and extents of municipal taxes. The budget estimates are then printed and the printed copies are sent to each munic:pal councillor. The budget estimates are thereafter laid before the Corporation which then considers the same. In considering the budget estimates the Corporation is entitled to refer them back to the Standing Committee for further consideration or to adopt them as they stand or subject to alterations.\n\nThe entire procedure provides built-in safeguards and lays down adequate guidelioaes in the matter of taxation. It therefore cannot be said\n\nSUPREME COURT REPORTS [1975] 3 s.c.R.\n\nthat the legislature has not prescribed any guiding principle fc; ir the Corporation for determining the rates of conserv>ancy ta~. We agree with the High Court that the proviso to claue (b) of ecton 129 does not suffer from the vice of excessive delegat10n of legislative power.\n\nMr. Bhandare on behalf of the State of Gujarat has assailed the finding of the High Court that section 406(2) (~) and secti.oi,1 411 (bb) are violative of •article 14 and that rule 42 of the Taxation Rules is void in so far as it has provided that if an appeal is preferred or entertained against the tax, warrant shall not be issued for !he recovery of the amount of tax. The High Court in striking down section 406(2)-\n\n(e) a•ad section 411(bb) relied upon its earlier judgment dated October 27, 1969 which had been given before the addition of the proviso to section 406(2) (e) of by Act 5 of 1970. According fo the arlier jucigment, clause (e) of sub-section (2) of section 406 classified the appellant filin, g appeals against tax and rateable value into two clauses : ( 1) those who deposited the amount of tax assessed by the Commissioner; and (2 l those who did not.\n\nIt was held that the above classification had no rational nexus with the object of the provision for appeal and that there was no reasonable justification for giving a right of appeal to one class and denying it to the other. After referring to the observations in the earlier judgment, the High Court expressed the opinion in the judgment under appeal that the addition of the proviso to section 406 ( 2) ( e) by Act 5 of 1970 did not make any material difference as far as the constitutional validity of the above provision was concerned.\n\nAccording to the High Court, the proviso merely carves out an exception from the main provision in sec- 1ion 406 (2) (e) and limits the applicability of the main provi~· sion to appellants who can deposit the amount of tax without undue hartlship. The result. in the opinion of the: High Court, was that the discrimination between the appellants who deposited the amount of tax and the appellant who did not, which is the necessary consequence of the condition requiring deposit of the amount of tax, still persits, though it is now limited to the c:lass of appellants who can deposit the amount of tax without undue hardship.\n\nAfter hearing the learned counsel for the parties, we are unable to subscribe to the view taken bv the High Court. Section 406(2)(e) as amended states that no appeal against a rateable value or tax fixed or charged under the Act shall be entertained by the Judge in the case of an appeal a1(ainst a tax or in the case of an appeal made against a rateable , value after a bill for any property tax assessed upon suc.h value has been presented to the appellant unless the amount\n\ncl~1rr_ied from the appellant has been deposited by him with the Comm1ss10ner.\n\nAccordmg to. the proviso to the above clause. where in anv particular case the Judge is of opinion that the deposit of the amou?t b~ th~ appllant .will cause un(!ue hardship to him; the Judge Yl?ay m his ~1cret10n dispense with such deposit or part thereof, either uncond1t10nally or subject to such conditjons as he may deem fit.\n\nThe object of the above provision apparently is to ensure the\n\ni\\NANf MILLS v. GUJARAT (Khwuw, J.) ~47\n\ndeposit of the amount claimed from an appeliant in case he seeks to\n\nlilc. an appeal agamst a tax or agamst a rateable value atter a bill for\n\nany propeny tax assessed upon sgch value has been presented to him. .Power at the same time is given to the appellate JUdgc to n:- l1eve the appeJ!ant from the ngour ot the above provmon in case the juoge is or the opmion tnat It would cause unoue haroship to . the appdlant.\n\nThe requirement about the µepos1t of th.C amount claimed as a condition precedent to the entertamment of an appeal which seeKs w cnaHenge tne 1mpos1tion or the quantum of that tax, in our opmion, has not the effect of nullirying the right of appeal, especially \\Vhen we keep in view the fact that discretion is vested tn the appellate judge to dispense with the compliance of the above requirement.\n\nAll that the statutory provision seeks to do is to reilllate the exercise - of the rignt ot 'appeal. The object of the above provision is to keep in balance the right of appeal, _!Vhich is conferred upon a pern who is aggrieved with the demand of tax made from hlll11 and the right of the Corporation to spcdy recovery of the tax.\n\nThe impugn~ provision accordmgly conters a right of appeal and at the .same time prevents the delay in the payment of the tax.\n\nWe find ourselves unable to accede to the ari;:ument that the impugned provision bas the effect of creating a discrimination as .is offensive to the principle of equahty enshrined in article 14 of the Constitution. It is signifi- . cant that the right of appeal is confeffed upon all persons who are\n\naggrieved against the d.etermination of tax or rateable value.\n\nThe bar created by section 406(2) (e) to the entertairllllent of the appeal by a person who has not deposited the amount of tax .due from him and who is not able to show to the appellate judge that the deposit of the amount would cause him undue hardship arises out of bis own omission and default.\n\nT.he above provision, in our opinion, has not the effect of making invidious distinction or creating two classes with the object of meting out differential treatment to them; it only spells out the consequences flowing from the omissio~ and defauit of a person who despite the fact that the deposit of the amount found due from him would cause him no hardship, declines of his own volition to deposit that amount. The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person\n\naggrieve!d is not entitled to file an appeal.\n\nWe fail to understand as to why the legislature while granting the _right of appeal cannot i111posc conditions for the exercise of such right ln the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions.\n\nIt is permissible, for example. to prescribe a condition in criminal cases that unless a convicted person is released on bail. he must surrende.r to custody before his appeal against the sentence of imprisonment would be\n\ncntertined .. Likewise, it is pemissible to enact a law lhat no appeal ,.hall lie agamst an order relatmg to an assessment of tax unless the\n\ntux had been paid.\n\nSuch .a provision was on the statute book in section 30 of the lpdian Income-tax Act, 1922. The proviso to that section provided that \". . . . . no appeal shall lie against an order under sub-section (1) of section 416 unless the tax had been paid\".\n\nSuch conditions merely regulate the exercise of the right of appeal so that\n\n248 SUPRt!MB COURT REPORTS [1975) 3 s.c.IL\n\nthe same is not abused by a recalcitrant party and tl1ere is no difficlllty in the enforcement of the oroer appeal:d against in case the ll1ppeal\n\nis ultunately dismissed. It is open to the Jcgislamr~ to mp()~1;: an accompanying liab11ity upon a party upon whom a legal nght 1s conferred or to presCflb(: conditions for the exercise of the nght.\n\nAny requirement for the discharge of that liability or lhe uihlment ?t that eondition in casl: the party concerned seeks to avail ot th1~ said right is a valid piece of legislat1on, and we can disc:ern no contravention of articll~ 14 in it. A disability or disadvantage arising out of a party's own default or omission c:; inot be taken to be tantamount to the creation of two classes offensive to article 14 of the Constitution, especially when that disability or disadvantage operates upon all persons who make the default or omission.\n\nAbservaticins in the case of Hannach Cohen, Exrx. of Sol Cohen, Deceased. and David E. Cohen, Intervener, Petitioners & Anr. vs.\n\nBeneficial industrial Loan Corporation & Ors. ( 1) lend some sup-\n\nPort to the view we have taken. Headnote 10 which is based upon the observations in the body of the judgment reads as under :·--\n\n\" 10. A Stall: statute which requires that in a stockhokler's derivative action a plamt1H wno owns less tnan 5 per cent ot the defendant cor_porations outstanding shares, or\n\nshares having marked value not 1:xceeding $ :>0,000, give security for the reasonable expenses, including counsel fees, incurred by the corporation and by other parties d1:- fendant, and which makes the plaintiff liable for such expenses if he .docs not make good his claims, and subjects the amount of security to increase if the progress of the litigation reveals that it is inadequate or to decrease if it is proved to be excessive, does not violate the contract clause, or the due process cl(l.use, or the equal protection clause of the Federal Constitution.\"\n\nSo far as the constitutional validity of section 411 (bb) anct''l:U!e 42 is concerned, iUs the common case of the parties that it hinges upon the validity o[ section 406(2) (e) and that in case we uphold the validity of the last mentioned provision, the validity of the other two provisions would have to be upheld. We accordingly uphold the constitutional validity of all the three provisions.\n\nThe Ahmedabad Electricity Co. Ltd. petitioner in writ ]petition No. 74 of 1972 is a licensee under the Indian Electricity Act,. 1910.\n\nIt has laid undergrcmnd supply lins undr most of the roads anii public streets in th(: city of Ahmedabad. The Corporation has in that connection assessed property tax and made the petitioner-company liable to pay that tax on the ground that the underground suppl.y lines occupv soac:e below the surface and that the said space constitutes land. Section 12 of the Indian Electricity Act confers a right upon a licensee to open and break up the soil and pavement of any street, railway or tramway for laying down. and placing electric supplly lines\n\n( 1 l 337 U.S. 53~.\n\nANANl' MILLS \\I, OlJJARAl (Klta11na, /.) 24!;\n\nand other works.\n\nAlthough the roads and public streets under which the petitioner-company has laid down underground supply lines vest\n\nit~ t~~ Corporation under sec!ion 202 of the Corporation Act, the\n\n!!ability to pay property tax m respect of the space in which supply lines are laid is sou, ght to be fastened upon the petitioner-company iu view of the provisions of section 139(1) of the CorporatioM Act.\n\nAccording to section 139( 1), subject to the provisions of sub-section\n\n(2), with which we are not concerned, property taxes assessed upon any premises shall be primarily leviable if the premises are held imme dintely from the Government or from the Corporation, ftom the actual occu\"lier thereof.\n\nThe word \"premises\" as defined in section 2( 46) includes land. The case of the Corooratlon as set out in the affidavit\n\nof Shri Narendrn R. nes:ii, Town Development Officer of the Corporation is that only such urea of the land as is occupied by the underground supply lines that is valuekl. for the purposes of assessing propertv taxes. It. is stated that for the puroose of laying supply lines. the petitioner di~ trenches and lavs down bricks to serve as bedding for the supply lines, The petitioner-company, it is ur11ed1 occuoies bv means of the surply lines that area'of land which is occupied by the hedding prepared for laying down the supply lines.\n\nMr. Tarkunde on behalf of the petitioner-company has urge(! that under entrv 49 of the State List in the Seventh Schedule to the Constitution, th'e State Legislature is empowered to enact a law relating to taxes on lands and buildings. It is submitted that the State Legislature has no competence under the above entry to enact a law for levy· ing tax in resoect of the area occupied by the undereround supply lines. The word \"land\", according to the learnttl counsel, denotes the surface of the land and not the undernround strata. We are unable to accede to the above submission. Entry 49 of List II contemolat\"~ a levv of tx on 1arids and buildine:s or bo'h as units. Such tax 'is directly imnosed on lands and builtline:s and bears a definite re1ation to it.\n\nSection 129 makes provision for the levy of property tax on buiWne:s and lands. Secthn 139 merely specifies the persons who wnnM h~ \"rhnqrilv resoonsibfo for the oavrrient of that tax. The word \"lnd\" indudPs n\"t onlv th\" face of the earth. but everything under nr over it. and has in its lee:al simific:itiot\\ an indefinite extent upward and downward, i; vin\" ri~~ to th~ maxim, Cuius eat solum ejus est uso11e ad coelum rue p, 263 72 Corpus Juris Secondum). According to Bro0ms Leg~) Maxims. 10th ed., p. 259, not only has land in its legal sie:nifir'ation at\\ ind0 finite extent uowards, but in law it extends also downwards. so th'lt whatevrr is in a clirect line between the surface and the centre of the earth bv the common law belongs to the owner of the surface (not merelv the surface, but all the land do'Wn to the centre of the earth and uo to the heavens) and hence the word \"land\" wliinli i~ nnmP., ·\"'\"'\"rt1liooin?Um. inclu'les. not only the face of the earth, but everything under it or over it.\n\nIn Rade on Rating, 11th ed., it is stated on page 14 :\n\n\"Bv far the largest number of persons rated are as 'occupiers of land or houses'. The word. 'land' as used in the\n\n~50 SlJPRE\\11' COURT REPORrS [!975] 3 s.c.R.\n\nstatute, must be understood in the widest possible sense : it includes not onlv the surface of the earth, but everything under it, or over it. fo Electric Telegraph Co. v. Salford Overseers( 1). Pollock,_ C. B. said :\n\n'There is no distinction between the occupying land, by passing through a fixed point of space in the air to another fixed point, cir by passing in the same manner through land or water.\n\nLand extends upwards as well as downward. \" .....\n\nIn the cas~' of Mayor, Aldennen and Councillors of the City of Westminster & Ots. v. The Souther.n Railway Company, the Railway Assessment Authority and W. H. Smith & Son, Limited & Ors.e) c Lord Russel of K.illowen observed : .\n\n\"Subject to special enactments, people are rated as occupiers of land, land being understood as including not only the surface of the earth but all strata above or below.\"\n\nThere can, th1:refore, be no doubt that land in entry 49, of List H would include the underground strata.\n\nIt mav be stated that the word \"land\" has also been defined in clause f30) of section 2 of the Corporations Act to include land which is being built upon or is built upon or covered with water. benefits to ar:se out of land. things attached to the ea1ih or oermanentlv fastened to anvthing attached to the earth and rights created by legislative enactment over the street.\n\nThe definition is of inclusive nature and E does not exclude from its ambit the underground strata of the land.\n\nIt has been argued by Mr. Tarkunde that the right to !av down supply lines under section 12 of the Indiai,1 Electricity Act is in the nature of a statutory licence and is not •a right in land. Hence the right does not constitute land within entry 49 and is not taxable by the State legislature.\n\nThis submissiO'a is wholly misconceived because what is taxed under the Corporation Act is land. Section 139, as already mentioned earlier, merely fastens the liability and states that the person primari~ liable to pay that tax would be the actual occupier.\n\nIt is not the case of the Corporation that the right of the netitionercompany. of laying and placing electric supply lines constitutes land and •as such the petitioner-company is liable to pay property tax.\n\nOn the contrary, the liability is sou1?ht to be fastened on the petitionercompany because of the company being in occupatida of the land\n\nwhrcin electric supply Jines have been laid and placed. Section 52 of the Indian Easement Act, 1882, to which reference has been made on behalf of the petitioner-company, merely defines \"Iicc; ase'\" and has no bearing on the: question with which we are concerned.\n\nIt cannot, in our opinion, be doubted that the petitioner-company H is 2.i:_?~uptid~-:~-e land wherein underground supply line is laid.\n\n!I) (]85~) 11 Ex. 181. a1 p. 186 (21 fl93ul A.C'. Sil.\n\nANANT JVULLS v. GUJARAT (Kha1111a, /.) 251\n\nIn England aUio a similar view was taken.\n\nWe may refer in this context to the case of The Assessment Committee of the Holywell Union & Anr. v. The Halky11 DWrict Mines Drainage Co.( 1). The Hea<lnote of this ca.c which was decided by the House of Lords. reads as under :\n\n'Land may be ocr; upied for the purpose of and in connection with the enjoyment of an easement in such a manner as to make the person so 01.:cupying rateable to the relief of the poor .. Such a person may be rateable, though his occupation is exclusive only for certain purposes, and though the ow.ier of the soil has reserved to himself rights of possession subordinate to the paramourit right granted to the other.\n\nThe test of rateability is not whether the rights granted are corporeal or incorporeal, but whether there is an occupation-which is a question of fact.\n\nWhere in pursuance of a statute the owner of land granted to a drainage company the exclusive right of drainage through a tunnel and water-course in his land, with the right of placing works in the tunnel •and water-course, and of making other tunnels in connection therewith, reserving to himself mineral and other rights :-\n\nHeld, reversiiJg the decision of the Court of Appeal, that the statute and grant gave the company not merely an casement but possession of the tunnels and water-course, that the right reserved to the owner were subordinate to the rights granted to the comp•any, and that the company wefo de facto in occupation of the tui, mels and water-course and rateable to the poor in respect thereof.\"\n\nLord Herschell LC. in that case observed :\n\n\"Along the tunnel for a considerable distance the company have placed iron tubbing; in parts they have placed brick arches; it seems to me that in these parts they occupy land precisely in the same sense as a water company does by its pipes or a tramway compa'.1y by its rails, or a telephone company by the supports for its wires.\"\n\n\\ It was further observed :\n\n\"The question whether a person is an occupier or not within the rating law is •a question of fact, and docs not depend upon legal title. The person legally possessed may not occupy.\n\nOn the other hand, a person may be occupier either with or without the consent of the owner.\"\n\nLord Herschell also relied upon the case of Rex v. Chelsea Waterworks Comoany (2 ) wherein a water c-0mpany to whom the Crown granted the right .to lay down its pipes was held hy the Court of King's ·----------. (l} [1895] A.C. 117.\n\n(~) 5 Tl. & Ad. 156.\n\nSUPREME. COURT REPORTS [1975] 3 s.c.R.\n\nBench to be occupier of land nnd liable to be rated, Lord Macnaghteo in thi: above cas1~ observed :\n\n\"Now, putting aside for a moment the reservations coll tained in the d(:ed of grant, can there be any doubt as to the position of the company for rating purposes as regoards thdr\n\nauthorized works 'l The numerous cases relating to gas companies, water companies, and tramways, place the matter beyond questic1n.'' / Lord Davey observed ia the above case :\n\n\"My Lords, I agree with the learned judges in the Court of Appeal that the drainage company are not owners of the soil of the tumt.els of watecourse. But that does not seim\n\nto me conclusive on the question of their rateabi!ity in r1s pect of their oc:cupation. The right of the company may be \\lJ1 easement or incorporeal right; but the easeme1.1t may be\n\nof such a c.haraeter as requires the occupation of land for its exercise. and confers upon the company a right to occupy land during its continuance. According to a long course of authority. the occupation of land u,1dcr such circumstances is sufficient for rating purposes, though unaccompanied by ownership of 1any portion of the soil.\n\nThe law was thus stated by Wightman J. in Reg. v. West Middlesex Waterworks(1) : In this case', says the learned Judge, 'the first question is whether the comp•any are rateable for their mains, which are laid under the surface of the highway. without my freehold or lea >chold interest in the soil thereof being vested in the company.\n\nWe think they are.\n\nThese mains are fixed capital vested in land. The company is in possession, of the mains burred in the soil. and so is de facto in possessitja of that space in the soil which the mains fill. for a our pose beneficial to itself.\n\nThe decisions are uniform in holding gas companies to be rateable in respect of their mains,\n\nalthough the occupation of such mains may be de facto merely, and without any legal or eouitable estate in the land where the mains lie, by force of some statute.'•\n\nNothing CMcnt has been ar.gucd before us as may jl, idnce us to take a view rliffercnt from that we have arrived at and which i~ also in accord with tliC view of the House of Lords. We would, therefore. hold that the oetitioner-cornoanv is in occunation of the underground strata of the land through which 1heir electric supply lines had been laid. .\n\nIi has been argued bv Mr. Tarkunde that even if the petiti0',1er electricity company mav be held to be actual occnoier of the under ground space on whirh its suonlv line has been laid the petitioner company does not holrl the said soace from the Comoration. It i~ unred that the petitioner-comoany is in occuoation of that space under\n\na tat11tf' ::ind not from th~ Coroorqti•)n. T n orrler tn hrild that soace from the Corporation, it was essential, according to the learned 1ounsel,\n\nr i i 1 r & E. M p. no,\n\nANAN'f MILLS v. GUJARAT (Khanna, /.) 253\n\nA that there should have been some agreement between the petitionercompaay and the Corporation or that the CorpQration should have given it.~ consent for that purpose. We are unable to accede to the above submission. Clause (a) of section 139(1) of the Corporations Act fastens the liability for payment of property tax on the actual occupier of :h~ premises held immediately from the Government or from the Corporation. In order tu attract tht: liability under the <above B clause, it i:~ J\"r()t :ssential that thcJ'e should have been an agreement between the actual o•; cupicr and the Government or the Corporatioh for the holding of the premises or that the holding must be with the consent of the Government or the Corporation.\n\nThe liability would accrue even if the premises vesting in the Govemment or the Corporation are occupied in pursuance of a statutory provision. The words \"held immediately from the Government or from the Corporation C signify only the party in whom the premises vest which are held by the actual occupier thereof.\n\nContention has also been advanced by Mr. Tarkunde regarding the quantum of tax levied on aoo the extent of the land alleged to have been occupied . by the petitioner-company for the underground supply lines. This is essenti'ally a question of fact and would have to be D agitated before the authorities concerned, including the appellate authority. .\n\nAs a result of the above, we di8miss writ petitions Nos, 51, 60 to 74, 87 to 91 157, 492 to '503, 533, 534 and 583 of 1972 as also writ petitions Nos. 1866 to 1877 and 2046 of 1973 with costs. One hearing fee. We also dismiss civil appeals Nos. 489 to 513 and 752 to 755 of 1973. We accept civil a.ppeals Nos. 643 to 684 of 1973 E and civil appeals Nos. 389 to 430 of 1974 and set aside the judgment of the High Court in so far as it: has struck down section 2(1A) (i), section 406 (2) ( e), section 411 (hb) and rule 42 of the Taxatfon Rules in Schedule A to the Corporations Act. We also set aside the judgment of the High Court to the extemt it has struck-down resolutions passed by the Corporation for offici•; il years 1967-68, l 968-69, 1969- 70 and 1970-71 tlxing the rate of conservancy tax at 9 per cent in F respect of textile mills and factories. 'The writ petitions which were filed in the High Court by the respondents concerned are dismissed.\n\nThe appellants shall be entitled to their costs in these two sets of appeals.\n\nOne. hearing fee.\n\nV.M.K.\n\n2-423SupCl/75", "total_entities": 290, "entities": [{"text": "ANANT MILLS CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "ANANT MILLS CO. LTD", "offset_not_found": false}}, {"text": "STATE OF GUJARAT & ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT & ORS", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 69, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 86, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 107, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 125, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 147, "end_char": 168, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 176, "end_char": 183, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 284, "end_char": 305, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 313, "end_char": 320, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Bombay Provincial Municipal Corporations Act", "label": "STATUTE", "start_char": 520, "end_char": 564, "source": "regex", "metadata": {}}, {"text": "Municipal Corporations Act", "label": "STATUTE", "start_char": 847, "end_char": 873, "source": "regex", "metadata": {}}, {"text": "Section 406(2)(e)", "label": "PROVISION", "start_char": 1285, "end_char": 1302, "source": "regex", "metadata": {"linked_statute_text": "Municipal Corporations Act", "statute": "Municipal Corporations Act"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 1607, "end_char": 1628, "source": "regex", "metadata": {}}, {"text": "Schedule V", "label": "PROVISION", "start_char": 1655, "end_char": 1665, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 1763, "end_char": 1772, "source": "ner", "metadata": {"in_sentence": "The assessment of properties to property tax in Ahmedabad was made under the Bombay Provincial Municipal Corporations Act by making: entries in the assessment books in accordan:e with the procedure prescribed in the Taxation Rules set out in Chapter VIII of Schedule A of :lhe Corporations Act, A st!parate section of the assessment book was prepared by the Commissioner of the Corporation for each official year in respect of the assessment of property tax F on certain kinds of properties like textile mills, factories and bl!.ildings of University."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2577, "end_char": 2584, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Coun", "label": "COURT", "start_char": 2770, "end_char": 2782, "source": "ner", "metadata": {"in_sentence": "The Supreme Coun in the judgment N\"w fo.:fanek Spinnfni; & Wea1•i11p, Mills Co, Ltd. & Ors."}}, {"text": "[1967] 2 S.C.R. 69", "label": "CASE_CITATION", "start_char": 2924, "end_char": 2942, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 3243, "end_char": 3250, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Sec. 1", "label": "PROVISION", "start_char": 3740, "end_char": 3746, "source": "regex", "metadata": {"statute": null}}, {"text": "Depu", "label": "OTHER_PERSON", "start_char": 4644, "end_char": 4648, "source": "ner", "metadata": {"in_sentence": "The petitioners thereafter filed petitions in the High Court challenging the validity of the assessments made by the Depu, ty Municipal Commissioner for the official years 1966-67, 1%7-68 and 1968-69."}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 4769, "end_char": 4787, "source": "ner", "metadata": {"in_sentence": "Those writ petitions were allowed by the Gujarat High Court as per judgment dated October 27, 1969."}}, {"text": "27, 1969", "label": "DATE", "start_char": 4818, "end_char": 4826, "source": "ner", "metadata": {"in_sentence": "Those writ petitions were allowed by the Gujarat High Court as per judgment dated October 27, 1969."}}, {"text": "December 23, 1969", "label": "DATE", "start_char": 4849, "end_char": 4866, "source": "ner", "metadata": {"in_sentence": "The ordin&nce dated December 23, 1969, was replaced by Gujarat Act No."}}, {"text": "March 31. 1970", "label": "DATE", "start_char": 4938, "end_char": 4952, "source": "ner", "metadata": {"in_sentence": "5 of 1970 which came into effect from March 31."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 5046, "end_char": 5055, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 5326, "end_char": 5333, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 5420, "end_char": 5427, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 129(b)", "label": "PROVISION", "start_char": 5942, "end_char": 5951, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(IA)", "label": "PROVISION", "start_char": 6177, "end_char": 6185, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 49, 129(b), 406(2)(e) and 411", "label": "PROVISION", "start_char": 6202, "end_char": 6240, "source": "regex", "metadata": {"statute": null}}, {"text": "Aryodaya Spg, & Wvg. Mills Co. Ltd.", "label": "ORG", "start_char": 7136, "end_char": 7171, "source": "ner", "metadata": {"in_sentence": "1866 to 1877 and 2046 of 1973 which have been filed by the Aryodaya Spg, & Wvg."}}, {"text": "Ahmedabad Electricity Co. Ltd.", "label": "ORG", "start_char": 7379, "end_char": 7409, "source": "ner", "metadata": {"in_sentence": "74 of 1972 filed by the Ahmedabad Electricity Co. Ltd. involves an additional point regarding its liability to pay property tax which has been levied on the ground that it o:cupies land below the surface for underground cables."}}, {"text": "s. 20A", "label": "PROVISION", "start_char": 8080, "end_char": 8086, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 8268, "end_char": 8275, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 8408, "end_char": 8415, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art 14", "label": "PROVISION", "start_char": 9342, "end_char": 9348, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 129", "label": "PROVISION", "start_char": 9835, "end_char": 9841, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 137", "label": "PROVISION", "start_char": 10323, "end_char": 10329, "source": "regex", "metadata": {"statute": null}}, {"text": "section 129", "label": "PROVISION", "start_char": 10915, "end_char": 10926, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 96 and 100", "label": "PROVISION", "start_char": 11000, "end_char": 11013, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 406(2)(c)", "label": "PROVISION", "start_char": 11347, "end_char": 11359, "source": "regex", "metadata": {"statute": null}}, {"text": "Khanna", "label": "JUDGE", "start_char": 11501, "end_char": 11507, "source": "ner", "metadata": {"in_sentence": "H-246Al\n\n(v) The bar created by s. 406(2)(c) to the entertainment of the appeal by a person who has not deposited the amount of tax due from him and whe> i~ not\n\nANANT MILLS v. GUJARAT (Khanna, J.) 223\n\nable to show to the appellate judge tha:'.", "canonical_name": "Khanna"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 11817, "end_char": 11824, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 406", "label": "PROVISION", "start_char": 11956, "end_char": 11967, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 411", "label": "PROVISION", "start_char": 12038, "end_char": 12044, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 406(2)(e)", "label": "PROVISION", "start_char": 12087, "end_char": 12101, "source": "regex", "metadata": {"statute": null}}, {"text": "Hannah Cohen", "label": "PETITIONER", "start_char": 12173, "end_char": 12185, "source": "ner", "metadata": {"in_sentence": "f247D-248C. F-Gl\n\nHannah Cohen, Ex.", "canonical_name": "Hannach Cohen"}}, {"text": "S. 539", "label": "PROVISION", "start_char": 12323, "end_char": 12329, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 12496, "end_char": 12500, "source": "regex", "metadata": {"statute": null}}, {"text": "Sout/iem Railway Company, Tiu Railw.ay Assessment Authority", "label": "RESPONDENT", "start_char": 13216, "end_char": 13275, "source": "ner", "metadata": {"in_sentence": "v.\n\nThe Sout/iem Railway Company, Tiu Railw.ay Assessment Authority and W. IJ."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 13563, "end_char": 13591, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "Y. M. Tarkundt", "label": "PETITIONER", "start_char": 13971, "end_char": 13985, "source": "ner", "metadata": {"in_sentence": "Y. M. Tarkundt (In C. ~. Nos."}}, {"text": "C. T. Daru", "label": "OTHER_PERSON", "start_char": 14050, "end_char": 14060, "source": "ner", "metadata": {"in_sentence": "51 and 74/72), C. T. Daru and Ravinder Narain, P. C. Bhartari, K. M. DeUli and K. J. John, for the petitioners, (In all the W.Ps.)"}}, {"text": "Ravinder Narain", "label": "OTHER_PERSON", "start_char": 14065, "end_char": 14080, "source": "ner", "metadata": {"in_sentence": "51 and 74/72), C. T. Daru and Ravinder Narain, P. C. Bhartari, K. M. DeUli and K. J. John, for the petitioners, (In all the W.Ps.)"}}, {"text": "P. C. Bhartari", "label": "OTHER_PERSON", "start_char": 14082, "end_char": 14096, "source": "ner", "metadata": {"in_sentence": "51 and 74/72), C. T. Daru and Ravinder Narain, P. C. Bhartari, K. M. DeUli and K. J. John, for the petitioners, (In all the W.Ps.)"}}, {"text": "K. M. DeUli", "label": "OTHER_PERSON", "start_char": 14098, "end_char": 14109, "source": "ner", "metadata": {"in_sentence": "51 and 74/72), C. T. Daru and Ravinder Narain, P. C. Bhartari, K. M. DeUli and K. J. John, for the petitioners, (In all the W.Ps.)"}}, {"text": "K. J. John", "label": "OTHER_PERSON", "start_char": 14114, "end_char": 14124, "source": "ner", "metadata": {"in_sentence": "51 and 74/72), C. T. Daru and Ravinder Narain, P. C. Bhartari, K. M. DeUli and K. J. John, for the petitioners, (In all the W.Ps.)"}}, {"text": "F. S. Nariman", "label": "OTHER_PERSON", "start_char": 14319, "end_char": 14332, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional Solicitor General of India, S. B. Vakil and /. N. Shroff, for appellants (In C.As."}}, {"text": "S. B. Vakil", "label": "OTHER_PERSON", "start_char": 14373, "end_char": 14384, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional Solicitor General of India, S. B. Vakil and /. N. Shroff, for appellants (In C.As."}}, {"text": "N. Shroff", "label": "OTHER_PERSON", "start_char": 14392, "end_char": 14401, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional Solicitor General of India, S. B. Vakil and /. N. Shroff, for appellants (In C.As."}}, {"text": "M. C. Bhandare", "label": "OTHER_PERSON", "start_char": 14842, "end_char": 14856, "source": "ner", "metadata": {"in_sentence": "R.\n\nM. C. Bhandare and M. N. Shroff, for the appellants (In C.As."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 14861, "end_char": 14873, "source": "ner", "metadata": {"in_sentence": "R.\n\nM. C. Bhandare and M. N. Shroff, for the appellants (In C.As."}}, {"text": "C. S.S. Rao", "label": "LAWYER", "start_char": 15256, "end_char": 15267, "source": "ner", "metadata": {"in_sentence": "C. S.S. Rao, for respondent No."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 15313, "end_char": 15325, "source": "ner", "metadata": {"in_sentence": "R. H. Dhebar and B. V. Desai, for respondent No."}}, {"text": "B. V. Desai", "label": "LAWYER", "start_char": 15330, "end_char": 15341, "source": "ner", "metadata": {"in_sentence": "R. H. Dhebar and B. V. Desai, for respondent No."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 15473, "end_char": 15479, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J .-Questions relating to the constitutional validity of the different provisions of the Bombay Provincial Municipal Corporations Act (Bombay Act 59 of 1949) (hereinafter referred to as the Corporations Act) as amended by Gujarat Acts No.", "canonical_name": "Khanna"}}, {"text": "Poona", "label": "GPE", "start_char": 15981, "end_char": 15986, "source": "ner", "metadata": {"in_sentence": "The Corporations Act was enacted by the Bombay legislature in December 1949 for the establishment of mU'ilicipal corporations in the cities of Ahmedabad and Poona."}}, {"text": "Ahmiedabad", "label": "GPE", "start_char": 16006, "end_char": 16016, "source": "ner", "metadata": {"in_sentence": "It was applied to Ahmiedabad on July 1, 1950."}}, {"text": "July 1, 1950", "label": "DATE", "start_char": 16020, "end_char": 16032, "source": "ner", "metadata": {"in_sentence": "It was applied to Ahmiedabad on July 1, 1950."}}, {"text": "Chapter VIII of Schedule A of the Corporations Act", "label": "STATUTE", "start_char": 16248, "end_char": 16298, "source": "regex", "metadata": {}}, {"text": "article 32", "label": "PROVISION", "start_char": 17231, "end_char": 17241, "source": "regex", "metadata": {"linked_statute_text": "Chapter VIII of Schedule A of the Corporations Act", "statute": "Chapter VIII of Schedule A of the Corporations Act"}}, {"text": "February 21, 1967", "label": "DATE", "start_char": 17497, "end_char": 17514, "source": "ner", "metadata": {"in_sentence": "Those writ petitions were disposed of by this C0urt by a judgment delivered on February 21, 1967 and reporterl as New Manek Chok Spinning & Weaving Mills Co. Ltd. & Ors."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 17871, "end_char": 17887, "source": "regex", "metadata": {"statute": null}}, {"text": "[1967) 2 S.C.R. 679", "label": "CASE_CITATION", "start_char": 18048, "end_char": 18067, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 19268, "end_char": 19281, "source": "ner", "metadata": {"in_sentence": "Although the Supreme Court directed the Corporation to prepare fresh <assessment lists relating to properties in the Special Property Section for the official years 1964-65, 1965-66 and 1966-67, the Coe poration was unable to do so in view of the decision of the High Court in the case of Ahdabad Municipality v. Keshavlal( 1) wherein it WM held that the Corporation had no power to assess and levy property tu for any official year after that year had anded."}}, {"text": "section 152A", "label": "PROVISION", "start_char": 19848, "end_char": 19860, "source": "regex", "metadata": {"statute": null}}, {"text": "New Manek Chowk Mills", "label": "ORG", "start_char": 20189, "end_char": 20210, "source": "ner", "metadata": {"in_sentence": "rad set aside the es8essment for the official years 1964- 65, 1965-66 and 1966-67 in New Manek Chowk Mills case (supra)."}}, {"text": "July 3, 1969", "label": "DATE", "start_char": 21129, "end_char": 21141, "source": "ner", "metadata": {"in_sentence": "Those petitions were allowed by the High Court as per judgment dated July 3, 1969 on the ground that the demand for certain particulars contJained in the •,10tices was beyond the scope of rule 8 ( 1) ."}}, {"text": "section 152A", "label": "PROVISION", "start_char": 21459, "end_char": 21471, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahmedabad Corporation", "label": "ORG", "start_char": 21947, "end_char": 21968, "source": "ner", "metadata": {"in_sentence": "The Ahmedabad Corporation, it may be stated, used to pass :i resolution u'ilder section 99 of the Corporations Act determining the rate at whi:ch property tax would be levied for the particular official year."}}, {"text": "section 99", "label": "PROVISION", "start_char": 22023, "end_char": 22033, "source": "regex", "metadata": {"statute": null}}, {"text": "section 49(1)", "label": "PROVISION", "start_char": 23078, "end_char": 23091, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Small Causes Ahmedabadl", "label": "COURT", "start_char": 23349, "end_char": 23381, "source": "ner", "metadata": {"in_sentence": "The petitioners preferred appeals against the order of the Deputy Commissioner determining the amount of property tax to the Chief Judge of the Court of Small Causes Ahmedabadl."}}, {"text": "section 406", "label": "PROVISION", "start_char": 23527, "end_char": 23538, "source": "regex", "metadata": {"statute": null}}, {"text": "Octot1er 27,\n\n1969", "label": "DATE", "start_char": 23858, "end_char": 23876, "source": "ner", "metadata": {"in_sentence": "Those writ petitions were allowed by the Gujarat High Court as per judgment dated Octot1er 27,\n\n1969."}}, {"text": "section 49", "label": "PROVISION", "start_char": 23895, "end_char": 23905, "source": "regex", "metadata": {"statute": null}}, {"text": "Muni cipal Commisioner", "label": "ORG", "start_char": 24007, "end_char": 24029, "source": "ner", "metadata": {"in_sentence": "It was held that section 49 of the Corporation Act did ncit con template delegation of judicial or quasi-judicioal powers by the Muni cipal Commisioner under taxation rule 18 and that disposal of complaints by the Deputy Commissioner was not permi.ssible."}}, {"text": "section 406(2)", "label": "PROVISION", "start_char": 24163, "end_char": 24177, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 24195, "end_char": 24205, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 406(2)(e)", "label": "PROVISION", "start_char": 24370, "end_char": 24387, "source": "regex", "metadata": {"statute": null}}, {"text": "Governor of Gurarat promulgated Ordinance", "label": "STATUTE", "start_char": 24915, "end_char": 24956, "source": "regex", "metadata": {}}, {"text": "March 31, 1970", "label": "DATE", "start_char": 25087, "end_char": 25101, "source": "ner", "metadata": {"in_sentence": "5 of 1970 which came into force with effect from March 31, 1970."}}, {"text": "section 49", "label": "PROVISION", "start_char": 25212, "end_char": 25222, "source": "regex", "metadata": {"linked_statute_text": "Governor of Gurarat promulgated Ordinance", "statute": "Governor of Gurarat promulgated Ordinance"}}, {"text": "April 17, 1970", "label": "DATE", "start_char": 25859, "end_char": 25873, "source": "ner", "metadata": {"in_sentence": "In the meantime, on April 17, 1970 appeal filed by the Corporation against judgment .dated July 3, 1969 of Gujarat High Court was dismissed by this Court: The decision of this Court was given in Municipal Corporation of the City of Ahmedabad, etc."}}, {"text": "section 152A", "label": "PROVISION", "start_char": 26170, "end_char": 26182, "source": "regex", "metadata": {"statute": null}}, {"text": "section 152A", "label": "PROVISION", "start_char": 26461, "end_char": 26473, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 127(1)", "label": "PROVISION", "start_char": 27122, "end_char": 27136, "source": "regex", "metadata": {"statute": null}}, {"text": "section 129", "label": "PROVISION", "start_char": 27253, "end_char": 27264, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 127", "label": "PROVISION", "start_char": 27460, "end_char": 27471, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPORTS [1975] 3 s.c.", "label": "COURT", "start_char": 28095, "end_char": 28130, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS [1975] 3 s.c."}}, {"text": "section 137", "label": "PROVISION", "start_char": 28541, "end_char": 28552, "source": "regex", "metadata": {"statute": null}}, {"text": "section 99", "label": "PROVISION", "start_char": 28758, "end_char": 28768, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 29063, "end_char": 29073, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2( 44)", "label": "PROVISION", "start_char": 29163, "end_char": 29177, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 137", "label": "PROVISION", "start_char": 29236, "end_char": 29247, "source": "regex", "metadata": {"statute": null}}, {"text": "section 150", "label": "PROVISION", "start_char": 30239, "end_char": 30250, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 406", "label": "PROVISION", "start_char": 30539, "end_char": 30550, "source": "regex", "metadata": {"statute": null}}, {"text": "section 406", "label": "PROVISION", "start_char": 30600, "end_char": 30611, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 30901, "end_char": 30910, "source": "regex", "metadata": {"statute": null}}, {"text": "section 406", "label": "PROVISION", "start_char": 31023, "end_char": 31034, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 411", "label": "PROVISION", "start_char": 31337, "end_char": 31348, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 31511, "end_char": 31520, "source": "regex", "metadata": {"statute": null}}, {"text": "section 453", "label": "PROVISION", "start_char": 31716, "end_char": 31727, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter VIII of the schedule contains the Taxation Rules", "label": "STATUTE", "start_char": 31824, "end_char": 31880, "source": "regex", "metadata": {}}, {"text": "New Manak Chowk Mills", "label": "ORG", "start_char": 32417, "end_char": 32438, "source": "ner", "metadata": {"in_sentence": "Clauses (2) and ( 3) of that rule need not be set out as they were struck down by this Court in the case of New Manak Chowk Mills (supra)."}}, {"text": "section 2", "label": "PROVISION", "start_char": 34120, "end_char": 34129, "source": "regex", "metadata": {"statute": null}}, {"text": "Lodging House Rates Control Act, 1974", "label": "STATUTE", "start_char": 34566, "end_char": 34603, "source": "regex", "metadata": {}}, {"text": "section\n\n11", "label": "PROVISION", "start_char": 35345, "end_char": 35356, "source": "regex", "metadata": {"linked_statute_text": "Hotel and\n\nLodging House Rates Control Act, 1974", "statute": "Hotel 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"metadata": {"statute": null}}, {"text": "section 406", "label": "PROVISION", "start_char": 39451, "end_char": 39462, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipal Corporation constituted by or under the principal Act", "label": "STATUTE", "start_char": 40289, "end_char": 40352, "source": "regex", "metadata": {}}, {"text": "Act as amended by thfa Act as if this Act", "label": "STATUTE", "start_char": 40906, "end_char": 40947, "source": "regex", "metadata": {}}, {"text": "GUJARAT", "label": "RESPONDENT", "start_char": 41633, "end_char": 41640, "source": "ner", "metadata": {"in_sentence": "ANA?iT MILLS V,1 GUJARAT (Khanna, J.) 233\n\nThe High Court after protracd hearing ."}}, {"text": "article 226", "label": "PROVISION", "start_char": 41837, "end_char": 41848, "source": "regex", "metadata": {"linked_statute_text": "Act as amended by thfa Act as if this Act", "statute": "Act as amended by thfa Act as if this Act"}}, {"text": "section 2(1A)", "label": "PROVISION", "start_char": 42223, "end_char": 42236, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 42269, "end_char": 42279, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 49", "label": "PROVISION", "start_char": 42318, "end_char": 42328, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 42424, "end_char": 42434, "source": "regex", "metadata": {"statute": null}}, {"text": "section 129(b)", "label": "PROVISION", "start_char": 42487, "end_char": 42501, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 42523, "end_char": 42533, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 13(2)", "label": "PROVISION", "start_char": 42619, "end_char": 42632, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 42678, "end_char": 42688, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 19(1)(f)", "label": "PROVISION", "start_char": 42692, "end_char": 42708, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 411", "label": "PROVISION", "start_char": 42797, "end_char": 42808, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 42863, "end_char": 42873, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 129(b)", "label": "PROVISION", "start_char": 43388, "end_char": 43402, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Gujarat", "label": "ORG", "start_char": 44112, "end_char": 44128, "source": "ner", "metadata": {"in_sentence": "389 to 430 of 1974 have been filed\n\nby the State of Gujarat ainst the judgment in so far as the High Court has struck down the impugned provisions."}}, {"text": "section 2(1A)", "label": "PROVISION", "start_char": 45054, "end_char": 45067, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 45084, "end_char": 45094, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "1st April, 1970", "label": "DATE", "start_char": 45188, "end_char": 45203, "source": "ner", "metadata": {"in_sentence": "Acol)t'ding to this clause, \"annual letting value\" means in relation to any period prior to 1st April, 1970 the annual rent for which any buildil18 or land or premises, exclusive' of forniture or machinery 1ontained c:ir aituate therein or th1reon, might, if th1~ Bombay Rents, Hotel and\n\nLodging Hou.e Ra~ Co11trol Al:t, 194 7 wer, e not in force, eanon nbly oo xpe1t1:d to lei: from year to year with reference to its use."}}, {"text": "clause 11", "label": "PROVISION", "start_char": 45575, "end_char": 45584, "source": "regex", "metadata": {"statute": null}}, {"text": "article\n\n14", "label": "PROVISION", "start_char": 46744, "end_char": 46755, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 14", "label": "PROVISION", "start_char": 46944, "end_char": 46954, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 2(1A)", "label": "PROVISION", "start_char": 47121, "end_char": 47134, "source": "regex", "metadata": {"statute": null}}, {"text": "Tnrkundc \\r.", "label": "LAWYER", "start_char": 47700, "end_char": 47712, "source": "ner", "metadata": {"in_sentence": "Mr. Tnrkundc \\r."}}, {"text": "R.rncd", "label": "LAWYER", "start_char": 47712, "end_char": 47718, "source": "ner", "metadata": {"in_sentence": "R.rncd counsel for the petitioners has not pressed the attack on the t:f•11s•itutional validity of clause (c) becauc, according to him, it is a:'t known as to which property would be covered by that clauses a8 construed by the High Court."}}, {"text": "section 49", "label": "PROVISION", "start_char": 48003, "end_char": 48013, "source": "regex", "metadata": {"statute": null}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 48116, "end_char": 48124, "source": "ner", "metadata": {"in_sentence": "Mr. Tarkunde has also pointed out that despite the decision of this Court in Man.ek Chowk Spg, & Wvg.", "canonical_name": "Tarkunde"}}, {"text": "Man.ek Chowk Spg", "label": "OTHER_PERSON", "start_char": 48189, "end_char": 48205, "source": "ner", "metadata": {"in_sentence": "Mr. Tarkunde has also pointed out that despite the decision of this Court in Man.ek Chowk Spg, & Wvg."}}, {"text": "Gcnernl", "label": "OTHER_PERSON", "start_char": 48639, "end_char": 48646, "source": "ner", "metadata": {"in_sentence": "It hns been argued befoxo us by the Additional Solicitor Gcnernl, Mr. Vakil and Mr. Bhandafe on behalf of the Corporation i.s well as the State Government that the High Court was m error in holding thrlt clause ( i) of section 2 (1A) was violative of article 14 in respect of the, sears prior to the official year 1969-70, As 11gai115t that, Mr. Tarkunde on behalf or the petitioners (the word \"p ... dtil)ncrs\" would cover not only the petitioners in this Court but also Lhosc who were the petitioners in the High Court) has supported the finding of the High Court in this re.spect."}}, {"text": "Vakil", "label": "OTHER_PERSON", "start_char": 48652, "end_char": 48657, "source": "ner", "metadata": {"in_sentence": "It hns been argued befoxo us by the Additional Solicitor Gcnernl, Mr. Vakil and Mr. Bhandafe on behalf of the Corporation i.s well as the State Government that the High Court was m error in holding thrlt clause ( i) of section 2 (1A) was violative of article 14 in respect of the, sears prior to the official year 1969-70, As 11gai115t that, Mr. Tarkunde on behalf or the petitioners (the word \"p ... dtil)ncrs\" would cover not only the petitioners in this Court but also Lhosc who were the petitioners in the High Court) has supported the finding of the High Court in this re.spect."}}, {"text": "Bhandafe", "label": "OTHER_PERSON", "start_char": 48666, "end_char": 48674, "source": "ner", "metadata": {"in_sentence": "It hns been argued befoxo us by the Additional Solicitor Gcnernl, Mr. Vakil and Mr. Bhandafe on behalf of the Corporation i.s well as the State Government that the High Court was m error in holding thrlt clause ( i) of section 2 (1A) was violative of article 14 in respect of the, sears prior to the official year 1969-70, As 11gai115t that, Mr. Tarkunde on behalf or the petitioners (the word \"p ... dtil)ncrs\" would cover not only the petitioners in this Court but also Lhosc who were the petitioners in the High Court) has supported the finding of the High Court in this re.spect.", "canonical_name": "Bhandafe"}}, {"text": "section 2", "label": "PROVISION", "start_char": 48801, "end_char": 48810, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 48833, "end_char": 48843, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Lhosc", "label": "OTHER_PERSON", "start_char": 49054, "end_char": 49059, "source": "ner", "metadata": {"in_sentence": "It hns been argued befoxo us by the Additional Solicitor Gcnernl, Mr. Vakil and Mr. Bhandafe on behalf of the Corporation i.s well as the State Government that the High Court was m error in holding thrlt clause ( i) of section 2 (1A) was violative of article 14 in respect of the, sears prior to the official year 1969-70, As 11gai115t that, Mr. Tarkunde on behalf or the petitioners (the word \"p ... dtil)ncrs\" would cover not only the petitioners in this Court but also Lhosc who were the petitioners in the High Court) has supported the finding of the High Court in this re.spect."}}, {"text": "section 2(1A)", "label": "PROVISION", "start_char": 49285, "end_char": 49298, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 49320, "end_char": 49330, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "S1", "label": "PROVISION", "start_char": 49802, "end_char": 49804, "source": "regex", "metadata": {"statute": null}}, {"text": "City of Bombay Municipal Act, 1888", "label": "STATUTE", "start_char": 50901, "end_char": 50935, "source": "regex", "metadata": {}}, {"text": "Lodging House Rates Control Act, 1947", "label": "STATUTE", "start_char": 50984, "end_char": 51021, "source": "regex", "metadata": {}}, {"text": "section 127", "label": "PROVISION", "start_char": 51378, "end_char": 51389, "source": "regex", "metadata": {"linked_statute_text": "Lodging House Rates Control Act, 1947", "statute": "Lodging House Rates Control Act, 1947"}}, {"text": "Rent Control Act", "label": "STATUTE", "start_char": 52064, "end_char": 52080, "source": "regex", "metadata": {}}, {"text": "article 14", "label": "PROVISION", "start_char": 53580, "end_char": 53590, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 14", "label": "PROVISION", "start_char": 53723, "end_char": 53733, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1962) 3 SCR 49", "label": "CASE_CITATION", "start_char": 54064, "end_char": 54079, "source": "regex", "metadata": {}}, {"text": "article 14", "label": "PROVISION", "start_char": 55909, "end_char": 55919, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 32", "label": "PROVISION", "start_char": 56084, "end_char": 56094, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Jayantilal Maineklal Shah", "label": "OTHER_PERSON", "start_char": 56137, "end_char": 56162, "source": "ner", "metadata": {"in_sentence": "In the affidavit of Jayantilal Maineklal Shah, Assessor •and Collector of the Corporation, filed on behalf of the respondents in these petitions."}}, {"text": "H. V. Divetia", "label": "JUDGE", "start_char": 57175, "end_char": 57188, "source": "ner", "metadata": {"in_sentence": "On disagreement between the two arbitrators the matter was referred in 1953 to Shri H. V. Divetia."}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 57212, "end_char": 57246, "source": "ner", "metadata": {"in_sentence": "a former Judge of the High Court of Judicature at Bombay as umpire."}}, {"text": "Divetia", "label": "OTHER_PERSON", "start_char": 57263, "end_char": 57270, "source": "ner", "metadata": {"in_sentence": "Shri Divetia held that .!fat rate floor area method which was being adopted by the Municipal Corooration of the city of Bombay in similar cases."}}, {"text": "Bombay", "label": "GPE", "start_char": 57378, "end_char": 57384, "source": "ner", "metadata": {"in_sentence": "Shri Divetia held that .!fat rate floor area method which was being adopted by the Municipal Corooration of the city of Bombay in similar cases."}}, {"text": "Pcidma Debi", "label": "OTHER_PERSON", "start_char": 57954, "end_char": 57965, "source": "ner", "metadata": {"in_sentence": "The affidavit further shows that notwithsttmding the decision in Pcidma Debi's 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the rate of conservancy tair 11t 9 i:er coot in r1!spect 01' textile mills, factories and other large pre:mise•\n\ninstead."}}, {"text": "section 131", "label": "PROVISION", "start_char": 67589, "end_char": 67600, "source": "regex", "metadata": {"statute": null}}, {"text": "section 137", "label": "PROVISION", "start_char": 68026, "end_char": 68037, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 68156, "end_char": 68169, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "may at this stage advert to the scheme of the Corporation Act", "label": "STATUTE", "start_char": 69286, "end_char": 69347, "source": "regex", "metadata": {}}, {"text": "section 129", "label": "PROVISION", "start_char": 69405, "end_char": 69416, "source": "regex", "metadata": {"linked_statute_text": "We may at this stage advert to the scheme of the Corporation Act", "statute": "We may at this stage advert to 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"ner", "metadata": {"in_sentence": "Mr. Bhandare on behalf of the State of Gujarat has assailed the finding of the High Court that section 406(2) (~) and secti.oi,1 411 (bb) are violative of •article 14 and that rule 42 of the Taxation Rules is void in so far as it has provided that if an appeal is preferred or entertained against the tax, warrant shall not be issued for !", "canonical_name": "Bhandafe"}}, {"text": "State of Gujarat", "label": "GPE", "start_char": 84751, "end_char": 84767, "source": "ner", "metadata": {"in_sentence": "Mr. Bhandare on behalf of the State of Gujarat has assailed the finding of the High Court that section 406(2) (~) and secti.oi,1 411 (bb) are violative of •article 14 and that rule 42 of the Taxation Rules is void in so far as it has provided that if an appeal is preferred or entertained against the tax, warrant shall not be issued for !"}}, {"text": "section 406(2)", "label": "PROVISION", "start_char": 84816, "end_char": 84830, "source": "regex", "metadata": {"statute": null}}, {"text": "article 14", "label": "PROVISION", "start_char": 84877, "end_char": 84887, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 406(2)", "label": "PROVISION", "start_char": 85126, "end_char": 85140, "source": "regex", "metadata": {"statute": null}}, {"text": "section 411(bb)", "label": "PROVISION", "start_char": 85152, "end_char": 85167, "source": "regex", "metadata": {"statute": null}}, {"text": "October 27, 1969", "label": "DATE", "start_char": 85207, "end_char": 85223, "source": "ner", "metadata": {"in_sentence": "The High Court in striking down section 406(2)-\n\n(e) a•ad section 411(bb) relied upon its earlier judgment dated October 27, 1969 which had been given before the addition of the proviso to section 406(2) (e) of by Act 5 of 1970."}}, {"text": "section 406(2)", "label": "PROVISION", "start_char": 85283, "end_char": 85297, "source": "regex", 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91012, "end_char": 91032, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 416", "label": "PROVISION", "start_char": 91149, "end_char": 91160, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "article 14", "label": "PROVISION", "start_char": 92059, "end_char": 92069, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Hannach Cohen", "label": "PETITIONER", "start_char": 92229, "end_char": 92242, "source": "ner", "metadata": {"in_sentence": "Abservaticins in the case of Hannach Cohen, Exrx.", "canonical_name": "Hannach Cohen"}}, {"text": "Sol Cohen", "label": "OTHER_PERSON", "start_char": 92253, "end_char": 92262, "source": "ner", "metadata": {"in_sentence": "of Sol Cohen, Deceased."}}, {"text": "David E. Cohen", "label": "OTHER_PERSON", "start_char": 92278, "end_char": 92292, "source": "ner", "metadata": {"in_sentence": "and David E. Cohen, Intervener, Petitioners & Anr."}}, {"text": "Beneficial industrial Loan Corporation", "label": "RESPONDENT", "start_char": 92330, "end_char": 92368, "source": "ner", "metadata": {"in_sentence": "vs.\n\nBeneficial industrial Loan Corporation & Ors. ("}}, {"text": "section 411", "label": "PROVISION", "start_char": 93308, "end_char": 93319, "source": "regex", "metadata": {"statute": null}}, {"text": "section 406(2)", "label": "PROVISION", "start_char": 93425, "end_char": 93439, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahmedabad Electricity Co. Ltd.", "label": "PETITIONER", "start_char": 93667, "end_char": 93697, "source": "ner", "metadata": {"in_sentence": "The Ahmedabad Electricity Co. 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B. said :\n\n'There is no distinction between the occupying land, by passing through a fixed point of space in the air to another fixed point, cir by passing in the same manner through land or water."}}, {"text": "Russel", "label": "OTHER_PERSON", "start_char": 98429, "end_char": 98435, "source": "ner", "metadata": {"in_sentence": "v. The Souther.n Railway Company, the Railway Assessment Authority and W. H. 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GUJARAT (Kha1111a, /.) 251\n\nIn England aUio a similar view was taken."}}, {"text": "Herschell", "label": "OTHER_PERSON", "start_char": 102201, "end_char": 102210, "source": "ner", "metadata": {"in_sentence": "Lord Herschell LC."}}, {"text": "Macnaghteo", "label": "OTHER_PERSON", "start_char": 103235, "end_char": 103245, "source": "ner", "metadata": {"in_sentence": "R.\n\nBench to be occupier of land nnd liable to be rated, Lord Macnaghteo in thi: above cas1~ observed :\n\n\"Now, putting aside for a moment the reservations coll tained in the d(:ed of grant, can there be any doubt as to the position of the company for rating purposes as regoards thdr\n\nauthorized works 'l The numerous cases relating to gas companies, water companies, and tramways, place the matter beyond questic1n.'' /"}}, {"text": "Davey", "label": "OTHER_PERSON", "start_char": 103599, "end_char": 103604, "source": "ner", "metadata": {"in_sentence": "Lord Davey observed ia the above case :\n\n\"My Lords, I agree with the learned judges in the Court of Appeal that the drainage company are not owners of the soil of the tumt.els of watecourse."}}, {"text": "Wightman", "label": "JUDGE", "start_char": 104358, "end_char": 104366, "source": "ner", "metadata": {"in_sentence": "The law was thus stated by Wightman J. in Reg."}}, {"text": "section 139(1)", "label": "PROVISION", "start_char": 106312, "end_char": 106326, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(1A)", "label": "PROVISION", "start_char": 107932, "end_char": 107945, "source": "regex", "metadata": {"statute": null}}, {"text": "section 406", "label": "PROVISION", "start_char": 107951, "end_char": 107962, "source": "regex", "metadata": {"statute": null}}, {"text": "section 411", "label": "PROVISION", "start_char": 107973, "end_char": 107984, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_254_283_EN", "year": 1975, "text": "HAR SHANKAR & ORS. ETC. ETC.\n\nTHE DY. EXCISE & TAXATION COMMR. & ORS.\n\nJanuary 21, 1975 [A. N. RAY, c.:r., K. K. MArnEw, Y. v. CHANDRAcHuo,\n\nA. ALAGIRISWAMl AND A. C. GUPTA, JJ.] B Constitution of India, 1950, Art. 226-Petition under reciprocal righrs and obligatiol!S arising out of contract, if could be enforced.\n\nConstitution of India, 1950, Art. 226 and P1111jab Excise Act, 1914 and Punjab Liquor Licence Rules, 1956-Appellants applying for and accepting licences to vend foreign. liquor Appella11ts, if co11ld question tlze validity of Rules while a11empti111? to exploit lice11ces,\n\nConstit11tio11 of India, 1950, Art. 19(1) (g)·-Business i11 i11toxicants-~Cirize11, C if has a fundamental right to trade i11 i11toxicants-State, if has power to prohi\n\nbit absolutely el'ery form of activity relating to intoxicants.\n\nThe Pu11jab Acr. 1 of 1914, Sections 27 and 34-Levy of 'licc11ce fe.~' and 'fixed fee' 011 traders in liquor-'fee', if fee in technical sense of the expressio11,\n\nPu11jab Excise Act, 1 of 1914, S. 34 and Punjab Liquor Licence Rules, 1956, Rules 35 and 59(d)-Grant of licence to the sale of liquor-Fee, if can be fixed by auction.\n\nPunjab Excise Act, 1 of 1914, Ss. 3(9), 34, 59(d) and 60 and l'u11jab Liq11or Licence Rules, 1956, Rules 11, 12 and 31-Levy of 'fixed fee' and additional fee on persons lwlding licences for sole of foreign liquor, if illegal.\n\nThe appellants are retail vendors of country liquor holding licences for the sale of liquor in specified vends. Those licences were granted to them on acceptance of their bids, in the auctions held by the Excise Department, Government of Punjab. The appellants in Civil Appeals Nos. 485 and 2205 of 1969 held E licences for the retail sale of foreign liquor for consumption on the premises of their respective establishments.\n\nFacts in Civil Appeal: No. 365 of 1971 are as follows : Consequent on the judgment dated March 12, 1968 of the High Court of Pun jab and Haryana in Civil Writ No. 1376 of 1967 (!age Ram and Ors. v. State of Haryana & Ors.), holding that the auctions for granting the right tci sell country liquor for the year 1968-69 had become ineffective, the first respondent held on March 23, 1968 an auction for granting the right to sell coµntry liquor at the 'Town Hall Vend' and 'Kailash Cinema Chowk Vend', Ludhiana. The appellants gave bids in the sum of Rs. 34,01,000 and Rs. 12,02,000 respectively for two vends, and those bids were duly accepted by the first respondent. The appellants were then granted licences in Form L. 14-A of the Punjab Liquor Licence Rules, 1956.\n\nThe appellants deposited Rs. 1,41,708 for the Town Hall Vend aPd Rs. 50,091 for the Kailash Cinema Chowk Vend being 1 /24th of the licence fee required to be deposited by way of security. They were, however, unable f[O meet their obligations uniler the conditions of auction and fell in arrears. The State Government demanded the payment, threatened to cancel the licens gra:nted to the appellants and declared its intention to resell the vends at the risk of the appellants. On August 22. 1968, the appellants filed their writ petition in the High Court of Punjab and Haryana. They prayed for a direction quashing the auction held on Murch 23, 1968 and secondly, they asked that the respondents be restrained form enforcing the obfigations arising under the terms and conditions of the auction.\n\nThe High Court held that the State Legislature was competent to regu'late the business of vending intoxicating liquors, that various provisions of the Act showed that the State Government had the exclusive right to manufacture or sell intoxi cants, that the Financial Commissioner held the jurisdiction to determine the method of disposal of country liquor vends, that the rules under which the\n\nimpugned auctions were held are substantially different from those under which the auctions challenged in !age Ram's case were held, that s. 34 of the Act is not an instance of delegated legislation and that the fixation of the maximum price of country liquor was a part of the power to regulate the trade in liquor.\n\nOn the main contention that the levy in th.e shape of licence fee was unconstitutional, the High Court held that licences granted for regulating trade in intoxicating liquors stand in a class by themselvs and that the consideration which governs licence fees charged in return for services rendered cannot apply to licences issued to the successful bidders at auctions of liquor vends.\n\nThe High Court further held that Entry 66 in the State List is not confined to foes levied for services rendered but extends to all kinds of fees and therefore the imposition of the licence fee was within the ambit of that Entry.\n\nIn these appeals founded on certificates of fitness granted by the High Court of Punjab and Haryana under Arts. 132(1) and 133(1)(a) and (c) of the Constitution, it was contended on behalf of the appellants that ( 1) the Financial Commissioner has no power to frame rnles so as to authorise the grant of liquor licences by holding auctions; (2) under s. 34 of the Punjab Excise Act, 1914, the Financial Commissioner has no right to authorise the levy or collection of any\n\namount which, strictly, is not a fee; an auction bid for fixing 'fees' is a contrndiction in terms; (3) The licence fee bears no relationship with the services rendered\n\nto the licensees and is therefore not 'fee' in the true sense. Nor can the licence fee be justified as an 'excise duty' as it is not levied on the manufacture or production of liquor; ( 4) The real character of the levy imposed on licensees through\n\nthe medium of auctions is that it is in the nature of a tax; and the Financial Com. missioner who is a!l independent statutory authoritv having powers which are distinct and different from those of the Government, has no authority lo im;)ose the tax; nor indeed, has the State Government the power to impose such a rnx; (5) The Government cannot under a contract impose a levy which it has no power to impose by law; (6) The new terms and conditions of auctions are. basically and in substance, similar to those which were stru.ck down by the Punjab High Court in .Tage Ram's case which decision was affirmed in appeal by the Supreme Court; and (7) The demand made by the Government for payment of large sums of money by hoteliers and bar-keepers who supply foreign liquor for consumption on their premises is arbitrary, without the authority of law and otherwise illegal.\n\nThe respondents raised a preliminary objection to the maintainability of the writ petitions filed by the appellants and to the grant of reliefs claimed by them on the ground that such of the appellants who offered their bids in the auctions did so with a full knowledge of the terms and conditions attaching to the auctions and they cannot by their writ petitions, be permitted to wriggle out of the contractual obligations arising out of the acceptance of their bins.\n\nDismissing the appeals,\n\nHELD; (On the preliminary objection raised by the respondents). The bids given by the appellants constitute offers and upon their acceptance by the Government a binding agreement came into existence between the parties.\n\nTh~ conditions of auction became the terms of the contract and it is on those terms that licences are granted to the successful bidders in Form L 14-A of the Rules. The licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit. Commercial considerations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a normal incident of all trading transacEons. Those who contract with open eyes must accept the burdens of the contract along with its benefits. The powers of the Financial Commissioner to grant liquor li:ences by\n\nm1ction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim.\n\nReciprocal rights and obligations arising out of contract do not depend for their enforceabilitv upon whether a contracting party finds if prudent to abide by the terms of the contract.\n\nBy such a test no contract could ever .have a binding force. [265B: 2630-E]\n\nLekhraj Satramdas Lalvani v. Deputy Custodian-cum-Mwwging Officer & Ors., [196qj I S.C.R. 120, relied on.\n\n256 SUPREME CoURT REPORTS [1975] 3 s.c.R.\n\nEashes/lar Nath v. The Commissioner o/ Income-tax, Delhi, and Ra/asthan Anr. [l9S9] Supp. l S.C.R. 528, referred to.\n\nJust as country liquor contractors offered bids voluntarily on terms and con ditirms governing the auctions, the appellants in Civil Appeills Nos. 485 ncl 2:;.JS of 1969 who hold licences in Form Nos. L-3, L-4 and L5 for the retail vt; nJ of foreign liquor, 11oluntarily applied for and accepted the licences knowiufl fully well that the Financial Commissioner had the power to frame rules governinr. the\n\nlic.ences.\n\nThe I ice.nces, ill a large measure, owe their existence and vulidity to the rule-muKing power of the Financial Commissioner. One of the relief~ which the appellants ask for is that Rules 27 A, 30 and 31 be declared ullra vim und un constitutional and consequently the respondents be directed to refund the as1.esseci\n\nfees already recc>vered.\n\nEly attempting to exploit the licences without the burden of assessed fees originally attachinP. to them under the rules framed by the Finan\n\ncial Commissioner, the appellants arc seeking to work the licences 011 such terms as they find convenient. The writ jurisdiction of High Courts under t\\Tt. ~~26 of the Constitution is not intended to facilitate avoidance of obligations volulltal'il)' incurl'lld. [26S H; 266 A\"B)\n\nHald f11rt/1er, (i) Thc1 true position gov!rnin11 dealings in intoxicants i~ as stated and reflected in the Constitution Bencl1 decisions of this Court in The Stare of Bomn\" and Anr. v, F. N. Ba/sara, [1951) S.C.R. 682, Cooverjee B. Blumisha\n\nv. The .. ••. ' Commissio11er and the Chie Commls.rioner, A/mer & Ors. 1.1954] S.C.R. 875, Slate of Assam v. A. N. K/dw.11, Commissioner of Hills Division and Appeals, Sl1il/ong (1957] S.C.R. 295, Nagendra Nath Bora & Anr:v. The Commis . stoner of Hills Division a11d Appeals, As.iam and Ors. (1958] S.C.R. 1240, Amar\n\nChandra Chakrabarty\n\nv. Collector of Excise, Government of Tripura &: Ors. (1973] 1 S.C.R. 633 aod State of Bombay v. R. M. D. Cltamarbaugwa/a, 11957] S.C.R. 874 as interpreted in State of Orissa and Ors. v. Harinarayan lalswal and Ors. (1972] S.C.R. 784 and Nashirwar etc. v. State of Madhya Pradesh &. Ors.\n\nCivil Appeals :to(os. 1711-1721 and 1723 of 1974 decided on November 27. 1974.\n\nThere is no fundamental right to do trade or business in intoxicants. The State, under its regulator).' powers, has the right to prohlbit absolutely every form of activitv in relation to intoxicants-its manufacture, storage, export, import, sle\n\nand nossmion. In all their manifestations, th1:se rights are vested in the State and indeed without such vesting there can be no effective regulation of various form$ of activities in relation to intoxicants. (277 FG]\n\nKrishna Kumar Narufa etc. v. The State of lammu and KaJhmir & Ors. [1967] 3 S.C.R. SO, discussed and explained.\n\nCrowley v. Christamrn, S4 Law, Ed. 620, 623 and Russel v. The Queen 7 A.C. 829, referred to.\n\n(ii) The distinction whi.ch the Constitution mnk.s for legislative purpose1; bet F ween a 'tax' and a 'fee' :ind the characteristic> 0f thsc two as also of 'excise dut~ are well known. The amour.ts charged to th~ 1kensccs in ; he instant cse: are, 1evidently, neither in the natur\" 0f a tax nor of excise duty. But then, the 'licence :fee' which the State Govrron:ent charged to the licensees through the medium of auctions or the 'fixed foe' vhich it charged to the vendors of foreign liquor hold ing licen:es in Form5. L-3, L-4 and L-5 need bear no quid pro quo to the services rendered to the licensees. The word 'fee' is .iot used in the Act or the Rufos in 1the technical sense of the cxpre.ssion. By 'licence fee' or '.fii;:<ld fee'-, is mearit the price or consideration whicn the Government charges to ilie licensees for p:1rting G with its privileges and granting them to the licensees. As !tie State can carry on a trade or business, such a charge is the normal incident of a trading or business transaction. [278 H; 279 B-C]\n\nMathews v. Chickory Marketing Board, 60 C.L.R. 263, 276, The Commissioner, Hinda Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swa miar of Sri Shirur Mutt; [1~!541 S.C. 1005. 1041 and Mis. Guuswamy & Co. Etc.\n\nv. Slate of Mysore & Ors., (1967] 1 S.C.R. 548, referred to.\n\nGundbing v. Chiap, o, 44 T .ed. 725, Philiips v. Mobile, 52, L.ed. 578 and Richard v. Mobile, 52 i:ed. 581, referred to.\n\n(iii) The position obtaining under the Rules as amended on March 22, 1968 is in principle different ai the still-bead dnty is now only 0.64 Paise as against\n\nRs. 17·60 per litre \\1-hich was in force under the old rules and excise duty as such is no longer payable on unlifted quota. The principles governing the deciions in Bhajan La/'s case C.A. Nos. 1642 and 1643 of 1968 decided on August 21,\n\n1972) and Jage Ram's case cannot, therefore, apply any longer. [281 EF]\n\n(iv) As the amount payable by the licensees on the basis of the bids offered by them in auction and on the basis of Fixed and Assessed Fees' is neither a fee in the technical sense nor a tax but is in the nature of the price of a privilege, there is no question of the Financial Commissioner lacking power to organize auctions so as to authorize the recovery of any amount which is not a fee properly so-called. 111e Financial Commissioner, under s. 34 of the Act read with rule 59 ( d), has the power to direct that licences may be granted on payment of such fees, that is, such consideration as he may by rules prescribe. It is open to him to frame a rule, as he has in fact framed Rule 35, directing that any class of licences may be granted on payment of fees fixbd by auction. Once it is appreciated that auc tions are only a mode or medium for ascertaining the best price obtainable for the grant of privilege to sell liquor, there would be no 'contradiction in terms' in directing, as r. 35 does, that a class of \"licences may be granted on the fee fixed by auction''. [281 FH]\n\n( v) It is true that the amendments under which the appellants (holding licen ces for sale of Foreign liquor) have been called upon to pay fixed fees were made after the licences were renewed. But the licences, though renewed in January 1968, were to be effective from April 1, 1968. The amendments having come into force before April !, would govern the appellants' licences and they are, there fore, liable to pay the fixed fees under the amended rules. Licences are granted under s. 34 of the Act subject to the payment of such fees as the Financial Com\n\nmissioner may direct. Tl\\e rules made under s. 59(d) authorize the imposition of additional fees and such authorization would operate on all licences to be effec tive thereafter. Such payments demanded from the appellants are \"excise re venue' within the meaning of s. 3(9) and 60(1) (a) of the Act and it. is, therefore, open to the Government to recover its dues in the manner authorised by s. 60 of the Act, [282 E-F]\n\nC1v1L APPELLATE JURISDICTION : Civil Appeals Nos. 365, 366, 485, 1102, 1260 to 1263, 1385, 1537, 1548 to 1551, 1553 to 1555, 1557 to 1560, 1566 to 1573, 1588, 1588, 1589, AND 2205 of 1969.\n\nAppeals from the Judgment- & Order dated the 18th November, 1968/6th/10th/24th January, 1969 of the Punjab & Haryana High Court m C.W. Nos. 37 /69, 2646)68, 2582/68, 1818, 2343, 2875, 2754, 2254, 2256, 2629, 2630, 2753 & 2911/68 91/69, 2706-2708,\n\n3084, 2460, 2461, 2644, 2652, 2580, 2581, 2549, 2699, 2501, 2694, 1277 and 2514 of 1968, fqr the appellants (In C. As. Nos. 365, 366, 1102, 1537, 1548-1551, 1553-1555, 1557-1560, 1566-1573, 1588 & 1589/69).\n\nI V. M. Tarkunde (In C.A. Nos. 1566, 485/69), A. K. Sen (In C.A. Nos. 1559 & 1588/69) Tirdth Singh Munjral, (In all the\n\n258 SllPREME COURT REPORTS ll~75J 3 S.C:.R.\n\nappeals) except C.As. Nos. 1537, 1554, 1557 and 1558/69) P. C.\n\nBhartari and O. C. Mathur (In all the appeals and B. P. Jhai (In all\n\nthe appeals except C.As. Nos. 1566, 485, 1559 & 1588/69).\n\nS. K. Mehta, K. R. Nagaraja and M. Qamaruddi11, for the appel- 1a,1ts. In C.As. Nos. 1260-1263/693.\n\nK.. B. Rohtagi and Tarachand Sharma, for the appellants, (In C.A. No. 1385/69).\n\nTirath Singh Munjral and H. K. Puri, for the appellants On C.A; No. 2205/69).\n\nF. S. Nariman, Additional Solicitor General of India, C In C.A.\n\nNo. 365/69) v. C. Mahajan (In C.A. No. 1102/69), H. S. Dhillon (In C.A. Nos. 1588-1589/69) K. S. Chawla (In C.A. No. 2205/69) S. S. Jauhar (ln C.A. No. 1537 /69), S. K. Gambhir (In C.As. Nos. 1548-1551/69) N. S. Das. Behl (In C.As. Nos.· 1553-1555/69), Bishamber Lal, (In C.\n\nAs.\n\nNos. 1557-1560/69) Harbans Singh, (In C.\n\nAs.\n\nNos.\n\n1566-1573/69), N.\n\nGoswami (In C.A. Nos. 1588-1589/69) K. S. Chawla (In C.A. No. 2205/69)\n\n0. P. Sharma, (In all the matters), for the respondents (In C.As. Nos. 366, 1260-1263, 1385, 1537, 1548-1551, 1553-1555, 1557-\n\n1560, 1566-1.567 1573 & 2205/69) and respondent Nos. l-'-3 (In C.As. Nos. 365, 1102, 1568-1572, 1588 and 1589/69).\n\n0. P. Shanna, for respondents (In C.As. Nos. 485/69).\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-This is a group of appeals founded on certificates of fitness granted by the High Court of Punjab and Haryana under Articles 132(1) and 133(1) (a) and (c) of the Constitution.\n\nThe appeals arise out of a common judgment dated November 18, 1968 rendered by the High Court in a batch , of 152 writ petitions under Article 226 of the Constitution. Those petitions were filed by liquor contractors and hoteliers to challenge the demands made upon them by the Department of Excise and Revenue, Government of Punjab.\n\nThe appellants are mostly retail vendors of country liquor holding licences for the sale of liquor in specified vends. Those licences were granted to them on acceptance of their bids in the auctions held by the Excise Department, Government of Punjab.\n\nThe 'licence fees' realised through bids made in the auction are said to be in the neighbourhood of Rs. 29 crores. ·\n\nIn Civil Appeals Nos. 485 and 2205 pf 1969, the appellants held licences for the reta:il sale of foreign liquor for consumption on the premises of their respective establishments. '\n\nCivil Writ No. 264-5 of 1968 out of which Civil Appeal No. 365 of 971 arises, may be tken to be typical of the petitions filed by retail vendors of country ltquor. For understanding the points in controversy it would be enough to refer to the facts of that petition.\n\nAuctio, ns for granting the right to sell country liquor for the year 1968-69 were initially held in various districts of Punjab on or about March 8, 1968 in pursuance of conditions of auction framed on FebruJry 19, 1968. Those auctions became ineffective by rea:son of\n\nn judgment dated March 12, 1968 of a Division Bench of the High Court of Punjab and Haryana in Civil Writ No. 1376 of 1967 (Jage Ram and Ors. \"S. State of Harya1a & Ors.). Following an earlier judgment in Bhajan Lal vs. State of Punjab (Civil Writ No. 528 of J 966 decided on February 6, 1967), the High Court took the view that the licence fee ealised through the medium of auctions was really in the nature of \"still-head duty and that licences could not be called upon by the Government to pay still-head duty on the liquor quota which, un,<ler the terms of auctions, they were bound to lift but which in fact was not lifted by them.\n\nOn March 21, 1969 a meeting of the State Excise. Officers was . held under the cha'irmanship of the Financial Commissioner to evolve a new formula for leasing the right to sell liquor so as to meet the judgment in' Jage Ram's case. The new policy containing fresh terms and conditions of auction was announced on the 22nd and the impugned auctions in pursuance of that policy were held immediately thereafter.\n\nOn March 23, 1968 the first respondent-the Deputy Excise and Taxation Commissioner, Jullundur-held an auction for granting the right to sell country liquor at the Town Hall Vend' and the 'Kailash Cinema Chowk Vend', Ludhiana. The appellants gave bids in the sum of Rs. 34,01,000 and Rs. 12,02,000 respectively for the two vends and those bids were duly accepted by the first respondent. The appel !ants were then granted licences in Form L. 14-A of the Punjab Liquor Licence Rules, 1956 (herein called \"the Rules\"), Forlll L. 14-A is prescribed under the Rules for the grant of licences for \"retail vend of country spirit for consumption off the premises\".\n\nThe conditions governing auctions were notified through announcements made at the time of auctions. Condition No .. l provides that all licences for sale of country spirit, foreign liquor, Beer, etc. shall be granted subject to the provisions of the Punjab Excise Act, 1 of 1914, (hereinafter called \"the Act\") and the rules framed thereunder. By Condition 14 (1), licences for retail vend of country spirit are granted on the basis of \"licence fee\" fixed by auction. Condition 14(ii) requires that the quota of country liquor fixed for each vend must be announced before the vend is put to auction. Under Condition 15(i) the successful bidder has to deposit security equivalent to 1 /24th of the amount of the annual lice\\1ce fee within the stated period. The security is refundable to the licensee at the end of the year unless it is liable to be. forfeited or adjusted against any amount due from him in respect of the licence. aause (ii) of condition 15 requires the successful bidder to pay the whole amount of licence fee in 24 equal instalmen~ spread over the year. aause (iii) of Condition 15 authorises the Collector to resell the ve.nd if the successful bidder fails to deposit the security or refuses to accept the licence.\n\nSUPREME C.O'!JRT REPORTS (1975] 3 !l.C.R,\n\nIn the event of such resale, any deficiency in the; licence fee i:s re- A coverable from the defaulter in the manner laid down in section 60 of the Act which provides by clauses (a) and ( c) that all \", excise revenue\" and all amounts due to the Government on account c1f any contract relating to the excise revenue may be recovered from the person lia'ble to pay the same by any process for the recevery of arrears of land revenue. By Condition 15(iv), a similar right is con- D ferred on the: Collector to resell vend in the event of the cancellation of a licence. By Condition 17, the still-head duty on ordinary spiced co.untry spirit is l(lViable at the rate of Rs. 0.64 per proof . litre. Condition 18(i) entitles the licensee to the refund of the proportionate part of the licence fee if there is a shortfall in the supply of liquor to him but he is not entitled to any compensation or damages for the short supply. By Condition No. 24, the maximum price at which the spiced country liquor may be sold by the licensee C is fixed at Rs. 10.00 per Quart, Rs. 5.25 per Pint and Rs. 2.7:5 per Nip.\n\nThe Town Hali Vend was auctioned on the basis of the fixed quota of 1,50,560 proof litres which is equivalent to 4,01,000 bottles per year. The Kailash Cinema Chowk Vend was auctionl:d on the basis of the fixed quota of 50,506 proof litres which is equivalent to D 1,34,685 bottles per year.\n\nThe appellants deposited Rs. 1,41,708 for the Town Hall Vend and Rs. 50,091 for the Kailash Cinema. Chowk Vend being 1/24th of the licence fee required to be deposited by way of security. They were, however, unable to meet their obligations under the condiitions of auction and fell in arrears. The State Government demanded the E payment, threatened to cancel the licences granted to the appellants and declared its intention to resell the vends a tthe risk of the appellants.\n\nOn August 22, 1968 the appellants filed their writ petition in the High Court of Punjab and Haryana. They prayed for three reliefs out of which only twc> were pressed at the hearing. They asked for a direction quashing the auctions held on March 23, 1968 and I' secondly they asked that the respondents be restrained from enfom. ing the obligations aris.ing under the terms and i::om:litions of the auctions. The Deputy Excise and Taxation Commissioner, Jullundur, is the first respondent to the petition; the. Excise and Taxation Commissioner Punjab, Patiala, is the second respondent; and the State of PunJab is the third respondent. The relief sought against the fourth respondent-a private firm-was not pressed.\n\nG Though several contentions-factual and legal were raised in the petitic'\"'• the appellants restricted their challenge in: the High Court to the following points : -·- . ' '\n\n(1) The Excise and Taxation Commissioner (who in the\n\nPun.iab exercised the powers of a Financial Commissioner under the Act) had no jurisdiction to H determine the method of disposal of the country liquor vends;\n\nA .\n\n(2) The power conferred on the Financial Commissioner under section 34 of the Act to grant a licence, permit or pass on_]!IY, nt....oLsuch fees, if .. , my, as he may direct did-not extend to cliosi, ng of the coiiiltry liqu()r. vends by \"iuctio~; -.... -:-;;··\n\n(3) The impugned auctions conducted uader the amended Rule 36 on the basis of estimated quota in JJIOOf litres was in substance foµnded on the same system which had been struck down by the High . Court in Jage Ram's oase where it was held that the levy impost:4..Jbrongb-1he .. medium ol'aiictions ·~\n\na tax . .; md nQtaJicence fee;\n\n( 4) The State Government alone was competent to impose a tax or an excise duty under the Act; that power could not be delegated to the Financial Commissioner or any other officer.\n\n(5) Section 34 of the.Act which empowered the Financial Commissioner to levy fees was not a charging section; but if it is construed as containing a delegation to him of the power of the state to levy taxes, no guidelines were laid down; and thus the delegation was excessive.\n\n( 6) \\r~ which could lle.J!!!nosed by the. Financial\n\nComm1sSiO!iCr under Section 34 of the Act could bnly be.justified if it.had a...I.ll.a.§IDl!l~e!aJi~!l}f-@i\n\neryj.£~_r\"'nclered to the licensei:s. H 1t was !IDposei:l olely or maiiil:f forrne 'purpose of collecting reveue, it was outside the ambit of Item 66 of List II of he Seventh Schedule of the Constitution. mou'tlts._realised in the. auctions in the guise of.lic.eJ!.Ce feeLnI~ so .. exorbitant that they col<; i ng\\ .. i, Q!y be _histified under iteni' . .66 . . \"\"\"~~-.... ,,,,,_.,. ... , ... ,.,.._.,_ ~\n\n(7) The rule fixing the: maximum price at which a licence could sell a bottle of liquor was ultra vires of the rule--making powers of the Financial Commissioner under Section 59 of the Act.\n\nThe High Court negatived all of these contentions. It held that the State Legislature was competent to regulate the business of vending rotoxicating liquors, that various . provisions of. the Act showed that the State Government had the exclusive right to manufacture or sell intoxicants, that the Financial Commissioner had the jurisdiction to determine the method of disposal of country liquor vends, that the rules under which the impugned auctions were held are substantially different from th.ose under which the auctidt1S challenged in Jage Ram's case were held, that section 34 of the Act is not an instance of delegated legislation and that the fixation of the maximum price of country liquor was a part of the power to regulae the trade in liquor.\n\nOn the main contention that the levy in the snape of licence fee was unconstitutional, the High Court held that licences granted for regulating\n\ntrade in intoxicating liquors stand in a class by themselves and that the consideration which govems licence fees charged in return for set vices rendered cannot apply to licences issued to the successful bidders at auctions of liquor vends.\n\nThe High Court further held that Entry 66 in the State List is not confined to fees levied for servic.::s rendered but extends to al! kinds of fees and therefore the imposition of the licence fee was within the ambit of that Entry.\n\nGefore us, the controversy was limited to the following contrnlions : I. The Financial Commissioner has no power to frame rules sc as to authorise the grant of liquor licences by holding au.ctions;\n\n2. Under section 34 of the Punjab Excise Act, 1914, the\n\nFirnrticial Commissioner has no right to authorise the . levy or collection of any •amount which, strictly, is not a fee; an auction bid for fixing 'fec.>' is a contradiction in terms;\n\n3. The licence fee bears no relationship with the services rendered to the licensees and is therefore not a 'fee' in the true sease.\n\nNor can the licence fee be justified as an 'excise duty' as it is not levied on the manufacture or production of liquor;\n\n4. The real character of the levy imposed on licensees through the medium of -auctions is that it is in the nature of a tax: and the Financial Commissioner who is an independent statutory authority haviag powers which arc di-; tinct and diffcrerit from those of the Government, has no authority to impose the tax; nor, indeed, has the State Government the power to impose suc:h a tax.\n\n5. The Government cannot under a contract impose a\n\nlc\\y which it has ·,10 power to impose by law;\n\n6. The new terms and conditions of aw.:tions are, basic:il!y\n\nand in substance. similar to those which were strncL down by the Punjab High Court in Jage Ram's ca; e and which decision ws aftirmcd i'.i appeal by the Supreme Conrt; and\n\n7. The demand made by the GoYernment for payment 01:\n\nlarge sums of money by hoteliers and bar-keepers wlm supply foreign liquor for consumption on their premises is arbitrary, without the authority of law and othcrwis~: illegal.\n\nLearned counsel for the respondents raised a prelill'inary objc:ction to the maintainability of the writ petitions filed by the appellatit; and to the grant of reliefs claimed by them.\n\nHe contends that such of the appellants who offered their bids in the auctions did so with a full knowledge of the terms and conditions attaching to the auctions and\n\nHAk SHANKAR v.\n\nDY. EXDISE OFFICER ( Chandrachud, !. ) 2 6 3\n\nthey cannot by their writ petitions, be permitted to wriggle out of the contractual obligations •arising out of the acceptance of their bids. This objection is well-founded and must be accepted.\n\nThose interested in running the country liquor vends' offered their bids voluntarily in the auctions held for granting licences for U1e sale of country liquor.\n\nThe terms and conditions of auctions were announced before the auctions were held and the bidders participated i11 the auctions without a demur und with full knowledge of the commitments ·..vhich the bids involved.\n\nThe announcement Of condit10ns governing the auctions were in the nature of an invitation to an offer tu those who were interested in the sale of country liquor.\n\nThe bids given in Lhe auctions were offers made by prospective vendors to the Government.\n\nThe Government's acceptance of those bids was the acceptance of willing offers made to it.\n\nOn such acceptance, the contract betwee1.1 Lhe bidders and the Government became concluded and a . binding a2reement came into existence between them. The successful bidders were then granted licences evidencing the terms of contract between them and the Go'1ernment, under which they became entitled to sdl liquor.\n\nThe licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit.\n\nCommercial considerations may have revealed an error of ju'dgment in the inifral assessment of profitability of the adventure but that is a normal incident of the tracljng transadions.\n\nThose who contract\n\n\\~ i th open eyes must accept the burdens of the contract along with its hnefits. The powers of the Financiql_ Commissioner to grant liquor licencees by auction and to collect licence fees through the medium of auctions connot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very\n\npowrs to found a legal claim. Reciprocal rights and obligations ari:; ing out of contract do not depend for their enforceability upon whether a contracting party -finds it prudent to abide by the terms of the contract.\n\nBy such a test no contract could ever have a binding force. . ln Lekhraj Satramdas La/vani v. Deputy Custodian-cum-Managing Officer & Ors.( 1), the appellant who was removed from the managership ef certai•a evacuee properties filed a petition in the , Kcrala High Court under Article 226 of tire' Constitution praying for a writ of mJndamus against the Deputy Custodian and others. This Court held that the appellant's appointment was coutractual in its naure and\n\nthe duti-s or obligations arising out of contract could not be enforced by the machinery of a writ under f\\.rticle 226.\n\nThere was some discussion before us as to whether FunJamental Rights could be waived and in answer to the preliminary contention cf the r.espondents it was urged on bel\"i\"alf of the appellants that they nre entitled to enforce their fundamental rights, no matt r whether they agreed to waive those rights while entering into contraCLS with the Government.\n\nIn support of the contention that the1e can be no wai .e:· of fundamental rights, reliance was placed by the appdlants on the well-known decision of this Court in Basheshar Nath v. Tlte Commissioner of Income-Tax, Delhi & Rajasthan & Anr. (').\n\n\n(2) [1959] Supp. l S.C.R. 528.\n\nThe writ petitions filed by the appellants in the High Court are wholly directed to showing that the Financial Commissioner lacked the power to grant liquor licences through auctions and to levy through the medium of auctions a sum which was not a 'fee' in the stric:t sease Of the term. The two reliefs which the appellants asked for in the writ petitions are that the •auctions held by the Government for granting liquor licences and the bids offered therein by the prospective lkensees should be quashed and secondly that a direction should be 1ssued to the respondents restraining them from e.; iforcing the obligations arising unC:er the bids.\n\nIt is interesting that except in the title of the petition showing that it was filed \"Under Article 226 of the C<ms'.itction of India\", the rnpresentative Writ Petition (No. 2646 of 1968) does not even refer to so much as 11ny provision of the Constitution, much less to the infringement of any Constitutional rights.\n\nApart from this, in the view whi.ch we a.re disposed to take o•a the main contention, no question of the waiver of a \"fundamental right\" can arise.\n\nThe appellants objected to the preliminary contention of the\n\nrepondents on the ground that in their counter affidavit filed in the High Court, respondents had not pleaded that there was any contract between the parties or that the writ jurisdiction of the High Court was inappropriate for the enforcement of contractual rights.\n\nThis :summission overlooks the matnial averments contained in the respondents' counter aflidavit.\n\nThis is what the respondent say : _\n\n\"The allegatia,1s with respect to the policy arc not rekvant inasmuch as the petitioner's liability arises from the terms and conditions of the Excise contract granted in his favour.\n\n\"I further submit that the petitioners voluntarily and of their own free volition offered themselves as bidders at the time of auction. Th.: petitioners were aware of the business that they were likely to do as a result of grant of licence iin their favour.\n\nSince theirs was the highest bid they were also 11ware of the cost that they were likely to incur for obtaining a bottle of country liquor.\"\n\n\"I submit that the \".Onditions regarding the sale price of country liquor were duly announced before the commencement of the auction of the vend.\n\nTh.:l petitioners gave bid -0f their own accord knowing all the implications thereof.\n\nThe petitioners having taken the licence with open eyes and understanding the law on the subject have no cause of action.\n\nNo constitutional provision has been infringed.\"\n\nTowards the end of the counter affidavit it is stated that the appellants had made contradictory allegations \"with a view to confusing the real issue in an attempt to wriggle out of their contractual obligations.\" It is thus clear that in the High Court, the respondents had raised the contention which is taken before us by their counsel in the form of a preliminary objection.\n\nOn the preliminary objection it was finally urged by the appellants that the objection was misconceived because there was, in fact, no\n\nHAR ~HANKAR v.\n\nPY. EXDISE OFFICER (Chandrachud, J.) 265\n\ncontract between the parties and therefore they were not attempting: to enforce any co';1tractual rights or to wriggle out of contractual obligations.\n\nThe short answer to this contention is that the bids. given by the appellants constitute offers and upon their acceptance by the Government a binding agreement caI)le into existe,1ce between the parties.\n\nThe conditions of auction become the terms of the contract and it is on those terms that licences are granted to the successful bidders in Form L. 14-A of the Rules.\n\nAs sl'ated in Cheshire and Fifoot's 'Law of Contract' (Eighth Ed., 1972; P. 24),\n\n\"In order to determine whether, in my given case, it is reasonable to infer the existence of an agreement, it has long been usual to employ the language of offer and acceptance.\n\nIn other words, the court examines all the circumsi; ances to see if the one party may be assumed to have made a firm\n\n\"offer\" and if the other may likewise be taken to have \"accepted\" that offer.\n\nThese complemeatary ideas present a convenient method of analysing a situation, provided that they are not applied too literally and that facts are not sacrificed to phrases.\"\n\nAnaJ:'sing the situation here, a concluded contract must be held to have come into existence between the parties.\n\nThe appellants have displayed ingenuity in their search for invalidating circumstances b11t a writ petition is not an appropriate remedy.for impeaching contractual obligations. ·\n\nIn Civil Appeals Nos. 485 and 2205 of 1969, filed respectively by Northern India Caterers (P) Ltd., and M/s. Green Hotel, Bar antl Restaurant and Others, the appellants hold licences in Form Nos. L-3, L-4 and L-5 for the retail vead of foreign liquor in a hotel, restaurant and in a bar attached to a restaurant.\n\nNo auctions were held i:or granting these licences and therefore the reasoning that acceptance of bids brought into existence a concluded contract between the successful bidders and the Governme•at will not apply to the cases of these appellants.\n\nBut they alsO accepted . the licences subject to the provisions of the Punjab Excise Act, 1914 and the Punjab Liquor Licence Rules, 1956.\n\nBy section 34 of the Act a licence under Lhe Act has to be granted, inter alia, on payment of such fees and subject to such restrictions and on such conditions as the Financial Commissioner may direct.\n\nSection 59(d) of the Act confers power on the Financial Commissioner to make rules prescribing the scale 0£ , fees in respect of any licence.\n\nRule 24 provides that the fees payable in respect of licences shall be either (a) fixed fees or (b) assessed fees or (c) auction fees.\n\nBy amendments made on February 22, 1968 a•,1d March 30, 1968, the fixed fees were substantially enhanced and the\n\nappellants were called upon to pay those fees.\n\nJust as country liquor contractors offered bids voluntarily on terms and conditions governing the auctidas, so in these two appeals the appellants voluntarily applied for and accepted the licences knowing fully well that the Financial Commissioner had the power to frame rules governing the licences.\n\nWhether the amendment~ made to the Rules after the appellants' licences were renewed are applicable is another matter but the appellants cannot questiO't1 the power of the Financial Commissioner to frame\n\n.those rules.\n\nThe licences, in a large measure, owe their existence and -validity to the rule-making power of the Financial Commissioner.\n\nOne of the reliefs which the appellants ask for is that Rules 27 A, 30 -and\n\n31 be declared ultra vires and unconstitutional and consequeatly the respondents be directed to refund the assessed fees already recovered.\n\nBy attempting to t:xploit the licences without the burden of asses-; ed originally attaching to them under the rules framed by the. Finan- Cial. Commissioner, the appellants are seeking to work the lict:nces on such terms as they find convenient..\n\nThe writ jurisdiction of High Courts under Article 226 of the Constitution is not intended 10 facilitate avoidance of obligations voluntarily incurred.\n\nThat, however will net estop the appeHants from co•atending that the amended Rules are not applicable as their licences were renewed before the amendments were made.\n\nThough this is the true position, we do not propose to dism; ss the appeals on the narrow ground that the reliefs, or some of them, sought by the appllants cannot be awarded in the writ petitions brought by fr.cm.\n\nWe have heard the appeals fully and since the poi.its involved are of general public importance, we would like to deal with the appeals on merits.\n\nThe main and the real focus of controversy is the power of the Government to levy and realise large licence fees either through the medium of auctions or on scales fixed under the rules.\n\nThe countrv liquor contractors offered incredibly high bids in the auctioa;\" which on the whole netted a revenue of rupees twentynine odd crorcs to the State Government.\n\nLicensees like the Northern India Caterers and M/s. Green Hotel who run hotels, restaurants or bars were asked under the ame'aded rules to pay, besides assessed fees, fixed fei::s varying between Rs. 7500 and Rs. 20,000 for the year.\n\nApprehending that. it was fruitless to do business on these terms and fearing the resort by the Government to coercive meoasures for the recovery of tT1e amounts clue to it, thi~ appellants filed writ petitions in the High Court soon after the commenceme'.1t of the term of their respective licences.\n\nLiquor licensing has a long history.\n\nPrior to the passing of the Indian Constitution, the licensees mostly restricted their challenge to the demands of the Government as being in excess of the conditions of the licence or C'.1 the ground that the rules in pursuance of whkh such conditions were framed were themselves beyond the rule-making power of the authority concerned.\n\nThi~ conflict took a new shape after the enactment of the Constitution.\n\nThe challenge now is generally based on the ground that there is no quid pro quo betweea the fees imposed on the licensees andl the services rendered to them; that the fees are in the nature of a tax which there is no authority to impose; that the levy is beyond the legislative competence of the State Government; or that the terms and conditions of the licence constitute a'a unreasonable restriction on the fundamental right of the citizen to carry on business for the soale of, liquor.\n\nThe appeals before us require consideration of both sets of points.\n\nThe provisions of the Punjab Excise Act 1914, like the provisions .of similar Acts in force ia other States, reflect the nature and the\n\nwidth of the power which the State Governments are empowered to exercise in the matter of liquor licensing.\n\nWe will notice first the relevfot provisions of the Act under consideration.\n\nSection 5 of the Act empowers the St&te Government to regulate the; maximum or minimum quantity of any i•atoxicant which may be so1d by retail or wholesale.\n\nSection 8 (a) vests the general superintendance and administration oi' all matters relating to excise in the Financial Commissioner, subject to the control. of the State Governmnt.\n\nSectiO'.i 16 provides that no intoxicant shall be imported, exported or . transported except after payment of the necessary duty or execution of a bond for such payment and in compliance with such conditions as the State Government may impose.\n\nSection 17 confers upon the State Government the power to prohibit .the import or export of any intoxicant into or from Punjab or any part thereof and to prohibit the transport of any intoxicant.\n\nBy section 20(1) no intoxicant can be manufactured or collected, no hemp plant can be cultivated, no tmiproducingtree can be tapped, no tari can be drawn from a•ay tree and no person can possess any material or ?.pparatus for manufacturing an intoxicant other than tari except under the authority and subject to the terms and CO'aditions of a licence granted by the Collector.\n\nBy sub-section (2) of section 20 no distillery or brewery can be constructed or worked except under the authority and subject to the terms and conditions of a licence granted by the Fraancial Commissioner.\n\nSection 24 provides that no person shall have in his possession any intoxicant in excess of such quantity as the State Government declares to he the limit of retail sale, except under the authority and in aceorda'iJCe with the terms and conditions of a licence or permit. Sub-section ( 4) of section 24 empowers the State Government to prohibit the possession of any intoxicant or restrict its possession by imposing such conditions as it may prescribe. Sectio'.1 26 prohibits the sale of liquor except under the authority and subject to the terms and condifons of a licence granted in that behalf.\n\nSection 27 of 'the Act empowers the State Government to \"lease\" on such conditions and for such period as it may deem fit or retail, any country liquor or hltoxicating drug within any specified local area.\n\nOn such lease being granted the Collector, under sub-section (2), has to grant to the lessee a licence in the form of his lease.\n\nSection 34 (1) of th~ Act provides that every licence, permit or pass under the Act shall be granted (a) on payment of such fe.s, if any,\n\n(b) subject to such restrictions and on such conditions, ( c) in such form and containing such particulars, and ( d) for such period as the Financial Commissioner may direct.\n\nBy section 35 (2), before any licence is granted for the retail sale of liquor for consumption on any premises the Collector has to ascertain local public opi,1iOn in regard to the licensing of such premises.\n\nSection 36 confers power on the authority granting any licence to cancel or suspend it if, inter alia, any duty or fee payable thereon has not been, duly paid.\n\nSection 56 of the Act empowers the State Governmeat to exempt any intoxicant from the provisions of the Act.\n\nBy section 58 the State Government may make rules for the purpose of carrying out\n\n•he provi&ions of this Act. Section 59 empowers the Fin; ancial Commissioner by clause (a) to regulate the manufacture, supply,. storage or r.ale of any intoxicant. By clause (d) of section 59 the Financial Commissioner is authorised to. make rules \"prescribing thescale of fees or the manner of fixing the fees payable in respect of any licence, permit or pass or in respect of the storing of any intoxicant.\" Section 60(1) provides that \"all excise revenue\", any loss that may accrue, by reascm of the resaie of a grant and all amounts due to the Government on account of any contmct relating to the excise revenue may be recovered by any prrn:ess for the recovery of arrears of land revenue.\n\nIn pursuance of section 59(d) the Excise and Taxation Commissioner on whom the powers of the Financial Commission.er are conferred by the State Government framed the Punjab Liquor Lfoence Rules, 1956. Since the appellants !rave challenged the legality of some of thesf~ rufos and as the rules also indicate the large rowers which are attempted to be exercised under the Act, it is essentia to set out the relevant rules.\n\nRule 1 contains a Table which is divided into six parts,\" the first two of which are call1d \"Foreign Liquor\" and \"Country Spirit\". The cmsses of licences, th(ir mode of grant imd the authorities who can grant and renew the licences are specified in the Table.\n\nPart I of the Table dealing with Foreign Liquor refers, inter alia, to licences in Form L-3, L-4 and L-5 which relate rnspectively to (i) retail vend of foreign liquor in a hotel or dak bungalow, (ii) retail ven.d of foreign liquor in a restaurant and (iii) retail vend of foreign liquor in a bar attached to a restaurant.\n\nNorthern India Caterers (P) Ltd., :md M/s.\n\nGreen Hotel, .Bar .and Restaurant, who are appellants in Civil Appeals No. 485 and 2205 of 1969 respectively hoM. licences in Form Nos.\n\nL-3, L-4 and L-5.\n\nThe Collector is desig1_1ated as the authority to grant and renew these licences.\n\nPrior to March 22, 1968 licences i:,1 Forms L-3, L-4 and L-5 used to be granted on assessed fees only as provided in Rule 28. The assessed fees were quantified in accordance with scale of fees pres.cribed under Rules 30 and 31. The scale of fees was raised in 1965 by a Notification dated April 15, 1965.\n\nUnder the revised rates the following fixed fees were prescribed.\n\n\"Indian made spirit -Rs. 25·00 Imported spirit -Rs. 31 25 per bulk Wino -Rs. 6 25 litre Indian Beer -Rs. 0·63 Importod :Boer -Rs. 1 25\"\n\n<?n March .2~, 1968 the second respondent (the Excise and Taxation Comm1Ss1oner) issued a notification in the exercise of powers conferred by section 59 of the Act whereby a new Rule 30 was substituted for the old Rule 30. By this notificati0'11, the Table under Rule 1 was amended so as to provide for the levy of both 'Fixed Fee' and\n\nA Assessed Fee' on those licences. Under the new Rule 30 the licensees in Forms L-3, L-4 and L-5 became liable to pay, in addition to assessed fees, fixed annual fees at the following rates : .\n\n\"(a) For a licence in a town with population not exceeding 50,000 -Rs.\n\n2,&JO\n\n(b) for r. licence in a town with populaticn exceeding\n\n50,000 but not exceeding one lac; 1-Rs. 7,500\n\n(cJ For a licence in a town with populaticn exceeding\n\none Jae but not exceeding two lacs; ---Rs. 10,000\n\n(d) For a licence in a tnwn with populaticn exceeding 2 lacs.\n\n-R:;. 15,0JO\" The amendments made by this notification arc called ''the Pu,1jab Liquor Licence (First Amendment) Rules, 1968.'' 1\n\nOn March 30, 1968 another notification was ir:ou JJ by the second respondent introducing the Punjab Liquor Licend (Sewad Amendment) Ruks, l968.\n\nUnder these rules a new rule-rule 27 .. A--was introduced whereby licensees in Forms L-3, L-4 and L-5 became liable to pay a fixed annual fee of Rs. 10,000.\n\nThe second part of the Table under Rule I. which dea:s with country spirit, refers, :•,1ter aiia, to licences in Form L-14-A for \"Retail vend of country spirit for consumption off the premises\".\n\nBarring the two appellants referred to above the other appellants ho!J licences\n\nin Form L-14-A.\n\nThe Table describes the mode of grant or the licence as by \"Auction\".\n\nRule 36 prescribs the procedure for the grant of licences by auction.\n\nBefore the annual auctio'.1s are held the Collector is required to determine the quantum of probable sales during the pc1 iod for which the licence is to be auctioned.\n\nThe quota of country liquor thus fixed for each vend is then to be ar:.nounced by the Collector bcforr the vend is put to auction.\n\nThe notice of auction has to specify, among other things, the conditions to which the auction is subject and the prices for retail vend of country Liquor.\n\nPule 23 provides for the payment of security depos:t and Ruic 24 for f''e resale of liccnc~ on the can•; ellation of an exis•ing licence.\n\nThe conditions of auction which we have set out at the beginning of our iw:lgment arc in fact in .terms of the rules framed under section 59 ( d) of the\n\nr\\ct.\n\nThe Prohibition and Excise L>aws in force in other States c,; ntain provisions substantially similar to those contained in the Punjab Excise Act.\n\nSeveral Acts passed by State Legi.slatures watain provisions rendering it unlawful to manufacture exoort, import. transport 01- scll intoxicating liquor except in accordance with a l!cenc:~. permit or pass granted in that behalf.\n\nThe Bombay Abkari Act 1878: the Bombay Prohibition Act 1949; th~ Bengal Exci5e Acts cf i 878 and\n\n1909; the Madras Abkari Act 1886; the Laws and Rules. contained in th~ Excise Manual United Province. the Eastern Bcrnrnl and Assam Excise Act 1910; the Bihar and Orissa Excise Act 1915 the\n\n. 3-423SCI\\75 ,\n\nCochin Abkari Act as amended by the Kerala Abkari Laws Act 1964; and the Madhya Pradesh Excise Act 1915, are instances of State legislations by which extensive powers are conferred on the State Government in. the matter of liquor licensing.\n\nThe power of the State Government under sectiaa 17 of the Act to prohibit absolutely the import, export or transport of any intoxicant; its power under section 20 to prohibit the manufacture or collection of an intoxicant or the construction or working of a distillery or a brewery except under the authority and subject to the terms a:ad conditions of a licence granted in that behalf, its power under section 24(4) to prohibit the possession of any intoxicant; and its power under section 27 to lease on such conditions and for such period as it may deem fit, the right of manufacturing, supplying or selling an intoxicant are only in conformity with the ancient and hoary rights which all gove:rnments in all countries have exercised in matters concerning intoxicants.\n\nThe rationale of such rights has been explained in several cases to some of which we many now refer.\n\nIn Cooverjee B. Bharucha vs. The Excise Commissioner and the Chief Commissioner, Ajmer & Ors.,(') it was contended that the citizen had an unfettered right to carry on trade and business in liquor under Article J 9 ( 1) (g) of the Constitution and therefore the provisions of the Ajmer Excise Regulation I of 1915 which conferred discretion on the Excise Commissioner to restrict the number of liquor shops and to licee them by auction to the highest bidder were void as creating a monopoly in liquor trade. The recovery of large licence fees through public auctions was also attacked on the ground that the\n\namount was not a fee but was in the nature of a tax and the same could not be recovered by recording to legislative powers saved by Article 19(6) of the Constitution.\n\nMahajan CJ., delivering the unanimous judgment of a Constitution Bench observed.\n\n\"It can also not be denied that the State has the power to prohibit trades which are illegal or immoral er injurious to the health and welfare of the public.\n\nLaws prohibiting trades in noxious or dangerous goods or traffickrag in women cannot be held to 1, Je illegal as enacting a prohibition and not a mere regulation.\"\n\nT:iis position was not disputed but is was urged that the sale of intoxicating liquors by retail in small quantities should be without restriction because every person had a right which inherred ia him, that is, a natural right to carry on trade in intoxicating liquors and that the Srate had no right to create a monopoly in them.\n\nThis contention was repelled on the reasoning contained in the judgment of Field J. in Crowley vs. Christensen(') Field J. observed :\n\n\"There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the .. - -· ---------\n\n(!) [1954] S.C.R. 87.l.\n\n(2) 31 L1w. Ed, 620, 623,\n\nHAR SHANKAR v. DY. EXCISE OFFICER (Ch€mdr(1Chud, J.) 271\n\ninjuries are confinetl to the party offe_11ding.\n\nThe injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weake•as; and in the selfabasement which it creates.\n\nBut as it leads to neglect of business and waste of property and general democratisation, it affects those who are immediately wanected with and dependent upon him.\n\nBy the general concurrence of opinion of every civilized and Christian community, there are kw sources of crime and misery to society equal to the <lram shop, where intoxiC'ating liquors, in small quantities, to be drunk at the time. are sold indiscrimr, rntely to all parties applying.\n\nThe statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source.\n\nThe sale of such liquors in this way has, therefore, been, at all times, by the courts of every State, considercti as the proper subject of legislative regulation.\n\nNot only may a licence be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day, and the days of the week on which the saloons may be opened.\n\nTheir sale in that form may be absolutely prohibited.\n\nIt is a question of public expediency and public morality, and not of federal law.\n\nThe police power of the State is fully competent to regulate the business-to mitigate its evils or to suppress it entirely. Their is nc inherent right in a citizen to thus sell intoxicating liquors by retail, it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils.\n\nThe manner and extent of regulation rest in the discretion of the !; OVerning authority. That authority may vest in such officers as it may deem proper the power of passing upon applications. for permission to carry it on, and to issue licences for that purpose. It is a matter of legislative will only.\"\n\nAfter citing this pass-age the learned Chief Justice said : \"These\n\nobservation~ have. our entire concurrence and they completely negative the contenton raised on behalf of the petitioner.\n\nThe. provisions of the Regulat10ns purport to regulate trade in liquor to all its the different spheres and are valid.\"\n\nThe. contention that the effect of some of the provisions of the Regulation was to enable Government to confer monopoly rights on one or more persons to the exclusion of others and that the creation of such monopoly rights could not be sustained under Article 19(6) was repelled on the ground that: ·\n\n. \"Elimination and exclusion from business is inherent in the nature of liquor business and it will hardly be proper\n\nSUI'REME COURT REPORTS [1975] 3 s.c.R.\n\nto apply to such a business principles applicable to fraes\n\nwhich all coul\\:I carry.\n\nThe provisions of the regulat10n cannot be attacked merely on the ground that they create a monopoly.\n\nProperly speaking, there can be a monopoly only when a trade which could be carried on by all persons is entrusted by law to one or more persons to the exclusion of the general public. Such, however, is not the case with the business of liquor.\"\n\nLastly, the argument that the fees recovered by public auction were excessive was rejected on the ground that one ot the purposs of the Regulations was to raise revenue, th::.t the lice.nee fee though discribed as 'fee' was more in the nature of. a tax, that revenue could be collected by the grant of cont:acts to carry on trade in . C uquors and that these contracts could be sold by auction.\n\nIn State of Assam v. N. l\\.idwai, Co111missio11e.r of Hills Dil'i si1J/l and Appeals, Shillong,( 1) Das C.J., speaking for a Constitution B1?nch, observed while rejecting a clnllenge to some of the provisions of Assam Act No. 4 of 1948, that a perusal of the Act and the rnles framed thereunder made it clear that :\n\n\"no person has any absolute right to sell liquor and that the purpose of the Act and the rules is to control and restrict the consumption of intoxicating liquors, such control and restriction being obviously necessary for the preservation of public health \\tnd morals. and to raise revenue.\"\n\nIn The State of Bombay and Anr. v. F. N. Baisara,(2) the constitutional validity of the Bombay Prohibition Act, 1949 was challeng, eel.\n\nOn the question of legislative competence of the State legisfa, ture to enact the statute, reliance was placed upon entry I of List II which relates to \"Public Order\". Faz! Ali J., speaking for a Constitution Bench, observed that though at first sight it may appear to be far-fetched to bring the subject of intoxicating liquor under \"Public.\n\nOrder\" yet it had to be noted that there was a tendeniy in Europe and America to regard alconotism as a menace to public order. The learned Judge then referred to th~ decision in Russel vs. Thi' Queen.(3) in which the Cn~<la Trmµcrance Act, 1878, was hdd to be a law relating to the \"peace. order, and good Government\" of Canada. Reference was al<o invited to be a passage in The Enc.y,\n\nlopaedia Brit7nnica, 14th Edition, Vol. 14, page 191. to the fo'lowrng effect :- .\n\n'The dominant motive everywhere, however, has been a social one, to combat a menance to public order and the incrcning evils of alcoholism in the interests of health and social welfare. The evils vary greatly from one country to another according to differences in climate diet economic ·~~- ' (I) [l957J S.C, R. 295.\n\n(2J [1951] S.C.R. 682.\n\n(J! 7 A.C. 829.\n\nHAR SHANKAR v. DY. EXCISE OFFICER ( Chandra,:hud, J.) 2 7 3\n\nconditions and even within the same country according to difference_s in habits, social customs and standards of public morality.\n\nA new factor of growing importance since the m1C1d1e ot the 19th century has been the rapid urbanisation, industrialization, and mechanization of our modern every day life in the leading nations of the world, and the ..:onseq-uent wider recognition of the advantages of sobriety m safeguarding public order and physical efficiency:·\n\nThis passage was treated as lending some support to the contention of the State Government that the Prohibiton Act fell within the sub- 1ect of \"Public Order\" but the matter was not pursued further as tnt:\n\nparticular entry had a remote bearing on the object and scope or the Act\n\nIn Nage11drc.i Nath Bora & A11r. v. The Commissioner of Hills Division and Appeals, Assam, and Ors.(1) the decisions in CooverJee case and Kidwai's case were cited by a Constitution Bench as laying down the proposition that there was no inherent right in: a citizen to sell liquor and that the control and restriction over the consumption of intoxicating liquors was necessary for the preservation of public health and inorals and to raise revenue.\n\nIn Amar Chandra Chakraborty v. Collector of Excise, Government of Tripura & Ors.,( 2 ) a Constitution Bench of this Court had to consider the question whether section 43 of the Bengal Excise Act,\n\n1909 unaer which the licence of a liquor contractor was withdrawn, violated Articles 14 and 19( I) (g) of the Constitution. The contention in regard to the violation of Article 14 was repelled by this Court with the observation :\n\n\"Trade or business in country liquor has from its \"inherent nature been treated by the State and the society as a special category requiring legislative control which has ben\n\nin force In the whole of India since several decades. In view _\n\nof the injurious effect of excessive consumption of liquor on health this trade or business shall be treated as a class by itself and it cannot be treated on the same basis as other trades while considering Art. 14.\"\n\nThe contention as regards the violation of Articl~ 9 was rejected. on the ground that in dealing with -reasonable restncl!ons o abs tr act standard or general pattern could be laid down and that m each case regard had to be had to the nature of trade or business nd the other circumstances.\n\nIn the case of country liquor, accodmg to he Court, due weight had to be given to the increasing evils of excessie consumption of country liquor in the interests of health and socrnl welfare.\n\nFor ............... ·\n\n[1958]-S.C.R- 1240.\n\n(2) [1973] I S.C.R. 533.\n\n\"Principles applicable to trades which all persons carry on free from regulatory controls do not apply to tr.ade or business iilJ country liquor, this is so because of the impact of the trade on society due to its inherent nature.\"\n\nThese unanimous d1cisions of five Constitution Benches uniformly emphasised after a careful consideration of the problem involved that the State has the power to prohibit traldes which are injurious to the health and welfare of the public, that elimination and exclusion from the business is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised communities. The contention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected.\n\nBut, in spite of the weight of this authority, a Constitution Bench struck a different note in Krishna Kumar Naru/a etc. vs. The State of Jamnw and Kashmir & Ors.( 1 ) The appellant therein who was doing business in liquor in a hotel, un\\.ier an annual licence issued under the Jammu and Kashmir Excise Act, 1958, challenged an order of the Excise an:d Taxation Commissioner asking him to shift the licensed premises to some other approved locality.\n\nFour contentions were raised in that case on behaif()f the appellant, the first of which was that if section 20 of the Act of 1958 was construed as conferr:ing an absolute discretion on the Excise and Taxation. Commissioner in the matter of granting licences to do business in liquor, it was void on the ground that it infringe\\:! Article 19 of the Constitution. This point was not allowed to be ra.ised in this Court on the ground that the constitutional validity of section 20 was not challenged in the High Court.\n\nIt would, however, appear that the learned Judges of the High Court had differed on the question whether the appellant had a fundamental right to do busin2ss in liqucr and this Court desired \"to make the position clear\" in order to \"avoid further confusion in the matter\". The de'cisions in Cooverjee's case, Kidwai's case and Nagcndra l'\\ath's c2.se wcr.: cited before the Court but it took the view that they did not support the. contention that dealing in liquor was not business or trade or thM a nght to do business in liquor was not a fundamental right.\n\nSubha Rao C.J. speaking for the Court expressed the conclusion thus:\n\n\"We, therefor.;:. hold that dealing in liquor is business and a citizen has a right to do business in the commoditv hut the Sta:e can make a law imposing reasonable restric~\n\ntion~ on the said right, in public interests.\"\n\nSince, owever, .the constitutional validity of section 20 was not chaIleng.ed m th~ H1~h Court, this Court assumed without decidinl!: that lI sect10n 20 did not infringe Artide 19 (1) ( g) . ··---- -- ...,\n\n(1) [1967) 3 SC.R~ 5~.\n\nHAR SHANKAR v. DY. EXCISE OFFICER (Chandm:chud, J.) 275\n\nIn 1he State of Bombay vs. R. M. D. Chamarbaugwa/a,(I) one of the contention raised was that the restrictions imposed by the Bombay Lotteries and Prize Competition Control and Tax Act, 1948, 011 the\n\ntnl\\:le or business of the respondents contravened the fundamental right guaranteed to them under Article 19(l)(g) of the Constitution. lt was ur_gcd that even if the prize competitions constituted gambling transactions they were nevertheless trade or business activities. On the other hand it was contended on behalf of the State of Bombay that as prize competitions were opposed to' public policy there could be no trade or business of promoting a prize competition and therefore the questi011 of infraction of the respondents' fundamental right under Article 19 ( 1) (g) did not arise.\n\nThis contention was 'described by the Court as raisin£ a question \"of a very far-reaching nature'\". Speaking for the Constitution Bench, Das C.J. after examining several Australian and American cases observed :\n\nwe have no doubt that there are certain activities which can under no circumstances be regarded as trade or business or commerce although the usual forms and instruments are employed therein.\n\nTo exclude those activities from the meaning of those words is nohto cut down their meaning\n\n<L .ill but to say only that they are not within the true meaning of those words.\" ·\n\nReferring to the Directive Principles of State Policy contained in Part IV of the Constitution the ka1:ned Chief Jilstice posed the question whether the Constitution-makers who set up such an ideal of a welfare State could possibly have intended to elevate betting and gambling to the level of country's trade or business or commerce and to guarantee tc its citizens. the riht to carry on the same. ft .vas said that \"ther<: 2an be only one answer to the question\" and the answer was that !he prize competition being of a gambling nature could not be re.garded as tra\\:le or commerce and therefore the respondents could not claim any fundamental right under Article 19(1) (g) in respect of such competitions. It was observetl : ' ·rt will be abundantly clear from the foregoing observations that the activities which have been condemned in this oountry from ancient times appear to have been equally discorn-c1.ge'd and looked upon with disfavour in England, Scotla:1d, the United States of America and in Australia in the cases referred to above.\n\nWe find it difficult to accept the contention that those activities which encourage a spirit of reckless propensitv for making easy .gain by lot or chance. whidi lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and .eventua!lv disrunt the peace and hanpiness of his humble home could possiblv have been intended. by our Constitution makers to be raised to the status of\n\n(1) [19571\n\nS.C.R. 874.\n\ntrade, commerce or intercourse and to be made the\n\nubiect matter ot a fundamental right guaranteed by Art. 19( l)(g). We find it difficult to persuade ourselves that gamb1mg was ever intended to form any part of this ancient countrv s trade, commerce or intercourse to be declai; ed as free under Art. 301. It is not our purpose nor is it necessary for us in deciding this case to attempt an exhaustive definit.on of the word \"tra\\:le\", \"business\", or \"intercourse''.\n\nWe are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them.\n\nWe are convinced and satisfied that the real purpose of Arts. 19 (1) ( g) and 301 could not possibly have been to guarantee or declare the freedom of gambling.\n\nGambling activities from their very nature and in essence are extracommercium although the external forms, formalities and instruments 0f trade may be employed and they are not protected either by Art. 19(1 )(g) or Art. 301 of our Constitution.\"·\n\nThis dec'sion was also cited before the Court in Krishna Kumar's 1case but it said : \"This decision only lays down that gambling is not business or trade.\n\nWe are not concerned in this case with gambling''.\n\nWith great respect, the reasons mentione<l by Das C.J. for holding that there can b<! no fundamental right to do trade or business irn an activity like gambling apply with equal force to the alleged right to trade in liquor and those reasons may not be brushed aside by restricting them to gambling operations.\n\nIn State of Orissa and Ors. v. Harinarayan Jaiswal and Ors .. (1) the highest bidder in an auction held for granting the exclusive p1rivilege of selling country liquor filed a writ petition to challenge an order rejecting his bid.\n\nIt was contended that the power retained by the Government to accept or reject any bid without assigning any reason was an arbitrary power and was violative of Articles 14 and 19(1) (g) of the Constitution.\n\nAfter referring to the decisions in Cooveriee's case and Krishna Kumar Narula's case it was observed that one of the important purposes of selling the exclusive right to vend liquor was to raise revenue and since the Government had the power to sell exclusive privileges there was no basis for contending that the owner of the privileges could not decline to accept the highest bid if he thought that the price offered was inadequate. Hegde J., speaking for the Division Bench observed : ~\n\n\"The fact that the Government was the seller does not change the legal position once its exclusive right to deal with those privileges is concetled.\n\nWthe Government is the exclusive owner of those privileges, reliance on Art. 19(1) (g) or Art. 14 becomes irrelevant.\n\nCitizens cannot have any\n\n-(!) [1972]38.C:. R. 784.\n\nHAR SHAN KAR v. DY. EXCISE OFFICER ( Chandrpy; hud, ] . ) 2 77\n\nfundamental right to trade or carry on business in the properties or rights belonging to the Governme.nt nor can there\n\nb~ any intnugement ot Art. 14, it the Government tries to get the best available price for its valuable rights.\" ln a recent judgment delivered on November 27,. 1974 (Nashirwar e1c. vs. State OJ Madhya Pradesh & Ors., Civil Appeals Nos. 1711- 1721 and 1723 of 1974) it was held on a review of various authorities including the decision in Krishna Kumar Narula's case that the State had the exclusive right or privilege of tnanufacturing and selling liquor, that it had the power to hold a pub.lie auction for granting the right or privilege to sell liquor, that traditionally intoxicating liquors were the subject-matter of State monopoly and that there was no fundamental right in a citizen to carry on trade or business in liquor.\n\nOne of us, the learned Chief Justice, observed while speaking on behalf of the 3-Judge Bench that : . \"l)1ere are three principal reasons to hold that there is no fundamental right of citizens to carry on trade or to do business in liquor.\n\nFirst, there is the police power ot the State to enforce public morality to prohibit trades in noxious or dangerous goods.\n\nSecond, there is power of the State to enforce an absolute prohibition of manufacture or sale of intoxicating liquor.\n\nArticle 4 7 states 'that th~ State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Third, the history of excise law shows ih3t the State has the exclu- .sive right or privilege of manufacture or sale of liquor.\" Jn our opinion, the true position governing dealings in intoxicants -is as stated and reflected in the Constitution Bench decisions of this Court in Balsara's case, Cooverjee's case, Kidwai's case, Nagendra Nath\"s case;· Amar Chakraborty's case and the R.M.D.C. case. as interpreted in Harinarayan J aiswal's case and Nashirwar's case. There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory pnwers, has me nght to prohlbit absolutely every form of activity in relation to intoxicants-its manufacture. storage, export, import, sale and possession. In all their manifestations, these rights. ar~ vested in the. State and indeed without such vesting there can be no effective regulation of various forms of activities in te)au.on til ul1Q):l<; llnts.\n\nJn \"American Jurisprudence\", Volume 30 it is stated that while engaging in liquor traffic is not inherently lawful, nf\"vertheless it is a privil.e.ge . and no.t. a tjght. to governmental con_trol. (page. 538). This power of control is an incident of the society's right to self-protection and it rests upon the right\n\no~ the State to care for the health, morals and welfare of the people.\n\nLiquor traffic is a source of pauperism and crime. (pp. 539. 540, 541) . .\n\nIt was unnecessary in Krishna Kumar Narula's case to examine the 9uestion from this broader point of view, as the only contention bearmg on the constitutional validity of the provision impugned\n\ntherein was not permitted to be raised as it was not argued in the High Court.\n\nThe dis1ussion of the question whether a citizen has a fundamental r:ight to do trade or business in liquor proceeded in that case, mowedly, from a desire to clear the confusion arising from the 'different views\" expressed by the two Judges of the High Court.\n\nThis may explain why the Court restricted its final conclusion . to holding that dealing in liquor is business and the citizen has a right to do business in that commodity.\n\nThe court did not say, though such nn implication mav arise from its conclusion. that the citizen has a fundamental right to do trade or business in liquor. If we may repeat, Subba Rao C J. sai'd :\n\n\"W c, therefore, hold thut dealing in liquor is business and ~1 citizen has a right to do business in that commodity; but the State can make a law imposing reasonable restric· tions on the said right. in public interests.\"\n\nIt is significant that the judgment in Krishna Kumar Narula's case does not negate the right of the State to prohibit absolutely all forms of activities in relation to intoxicants.\n\nThe wider right to prohibit absolutely would include the narrower right to permit dealing in intoxicants on such terms of general application as the State d<:ems expedient.\n\nSince rights in rega; d to intoxicants belong to the State, it is opcn to the -Government to part with those rigts for a consideration.\n\nBy Article 298 of the Constitution, the execuyve power of the Stte extends to the carrying on of uny trade or bumess and to the makmg of contracts for any purpose.\n\nAs observed in Harinarayan Jaiswal's case. \"if the Government\" is the exclusive owner. of those privileges, reliance on Article 19 (I )( g) or Article 141 becomes irrelevant. Citizem cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government, nor can there be any infringemmt of Article I 4, if the Government tries to get the best available price for i:R v•1luable rights.'' Section 27 of the Act recognises the right of the Governm'ent to grant a ls~. of its right to ma.wlfu<;; ure .s.upply or sell intoxicants.\n\nSection 34 of the Act r1:ad with section 59 ( d) empowers the Financial Commissioner to direct that a licence, permit or pa<s be granted under the Act on payment of such fees and subieC't to such restrictions and on such conditions us he may prescribe. \\•Tn such a scheme, it is not of' the essence whether the amount ch<'l'!!ecl to the licensees is pre.-c:letermined as in the appe<lls of Northern Tnclin Caterers and of Green Hotel or whether it is left to be determined bY bids offered in auctions held for granting those right~ to licenser~.\n\nTlv oower of the Government to' charg~ a _nric; for oartim'. witli its rights and not the mode of fixing tht\n\nonce 1s whnt constitutes the es<ence of the matter. Nor indeed does the label ffixrd to th<' nrice determine either the true natu.e of the char!):e leY1ed hv the Government or its right to levy the same.\n\nTlie distinct; on which th Constitution makes for legislative purposes etween a 'tax' and a 'fee' and th~ c; harac; teristic of these two\n\nB.;\n\nas also of 'excise duty' are well-known. \"A tax is a compulsory exaction of money by public authority for public purposes enforceable. by Jaw and is not a paymept for services rendered\". (I) A fee is a. charge for special services rendered to individuals by some governmen~\n\nta! agency and such a charge has an element in it of a quid pro quo.(2} Excise duty is primarily a; duty on the production or manufacture of goods produced. or manufactured within the country(3). The amounts\n\nharged to the licensees in th~ instant case are, evidently, neither natur(! of tax nor excise duty. But then, the 'Licence fee' which the Sta:e.g0vernment charged to the licensees thtougl'f The medii.lm 61' mictions or the 'Fixed fee' which rt c1ra~ lO the vendors of foreig11 liquor tiofdiilglicences in Forms L-3, L-4 and L-5 need bear no quid pro quo to the services rendered to the licencees. The word 'fee' is not used in the Act or the R; u!es in the technical sense 'of the expressioru By 'lic.ence fee' or 'fixed fee' is meant the price or consideration which the Govei'n!'ll.ent charges to the licensees for parting with its privileges and granting them to the licensees.\n\nAs the State can carry on a trade or business, such a charge is the normal incident of a trading; or business transaction.\n\nWhile on this question, we may with advantage cite a passage from \"American Jurisprudence\" (Vol. 30 pages 642, 645) which is based. on the decisions Gu11dling vs. Chicago, (~) Phillips vs. Mobile (5) and Richard vs. Mobile (6 ) It says :\n\n\"the familiar principle that the imposition of license fees on. useful and honourable occupations must not exceed the cost of issuing the license, plus the expense of inspecting and regulating the business licensed. . . . . . . . is not necessarily applicable to the liquor license.\n\nThe liquor traffic is not something which is licensed for the purpose of promoting it.\n\nIndeed, licene fees may be exacted in amounts intended to discourage participation in the business.\n\nThe courts have quite generally refused to hoFd that the license fee imposed, merely because it is large. is a tax, where the object is no control, regulate, and restrict, and not to encourage the liquor traffic the revenue being the result of the system and not the otive for its; adoption ...... The higher the fee imposed for a license,. it is sometimes said, the better the regulation, as the effect of l hi1rh fee is to keep out of the business those who are undesirable, and to keep within reasonable limits the number of thoe who may engage in it.\"\n\n(1) Pel' Latham C. J. in Mathews v. Chickory Marketing Board, 60 C.L.R. 263,\n\n276.\n\n(2) 771e Co111missio11er, Hindu Religious E11dowme11ts, Madras vs. Sri Laks/11nindra\n\nTltirtha Swamiar of Sri Shirnr Mutt.; [1954] S.C. R. 1005, 1041.\n\n(3) .1~ 1s. Guruswamy & Co. Etc. vs. State of .l\\fysore Ors., [1967] 1 S. C.R. 548.\n\n(4) 44 L. ed. 725. (Sl 52 L. eel. 578.\n\n(6) 5~ L. e:I. 531.\n\nIn the view we have taken, the argument that the Government . cannot by contract do what it cannot do under a statute must fail.\n\nNo statute forbids the Government from trading in its own rights Or privileges and the statute unlder consideration, far from doing so, expressly empowers it by sections 27 and 34 to grnnt lease of it~. right and to issue the requisite licences, permits or passes on paym, nt of such fees as may be prescribed by the Financial Commissioner.\n\nThe argument that in Coovcrjee's case the impugned power having been exercised in respect of a centrally administrated area, the power was not fettered by legislative lists loses its relevance in the view we . are taking.\n\nIt is true that in that case it was permissible to the court to find, as in fact it did, that the fee imposed on the liccncce,; was ''more in the nature of a tax than a licence fee\".\n\nAs the authority which levied the fee had the power to exact a tax, the levy could be upheld as a tax, even if it could not be justified as a 'fee', in the cnslitutional sen-;~ of that term.\n\nBut the 'Licence fee' or 'Fixed kc' in the\n\ninstnt case does not have •o conform to the requirement that it must bear a reasonable relationship with the services rendered to the iiccHsce>.\n\nThe amount charged to the licensees is not a fee properly so-c<illc:.' nor incle2d a ta'\\ but is in the nature of the price of a privilege, which th~ purchaser has to pay in any trading or business transac 1.ion.\n\nThis answers the main and the more important arguments urged on behalf of the appellants.\n\nWhat remains to be considered is the contention in rcgaid to the scope and extent of the powers of the Financial Commissioner and the legality, otherwise. of the ck1m.nd for the paymrnt of 'Fixed Fees' made on vendors of forl.'ign liquor holding lin:nces in Forms L-3, L-4 and L-5.\n\nBefore adverting to these contentions it is necessary to refer to two deci.sions on hich the appellants laid some stress.\n\nIn Laxmic Kant Sahu v. Supdt. of Excise, Behrampur (C.A. 1415 of 1966 decided on I iJ-4-1967) it wa.; held by this Court that section 38 of the 81har\n\nand Orissa Excise Act. 1915 did not empower the board to levy a tax and since the charge fo; the grant of a privilege for the retail 'oil'' vend of foreign liquor under the systm of auctioning introduced by the amende\\:I rule 103 ( 1 ) was a tax, the rule was beyond the cope of section 38 and therefore void.\n\nTt was expressly conceded in that case on behalf of the State of Orissa that the charge for the grani of a privilege for the 'off' vend of foreign liquor under the sy>tcm of auctioning was a tax and not a fee.\n\nThe decision, being based on a concession, does not involve determination of the point whether the levv was truly in the nature of a tax.\n\nBesides. the question :1> h' whether the word 'fee' was use'j in section 38 in the technical sense was not canvassed in that case.\n\nThe finding that the State Government had no power undier the Act fo levy dutv in the form of a payment for the grant of a licence for retail vend of foreign liquor was based on \"combined reading of sections 22. 27. 28 and 29\" of the\n\nBihar Act. Section 22 empowe.red the Go_vernment t? make a_ grat of the exclusive privilege of sellmg by retail country hquor or mtox1cating drugs only.\n\nThe second decision on which the appellants laid stress was rent.icred by the High Court of Punjab nd Haryaa in !age Ram v . .Swte of Harya11a (C.W. No. 1376 of 1967 ~.ec1ded on March 12, 1968). The argument is that this decision is based on th~ earlier decision of the High Court in Bhajan La.I v. State of Punjab. C.~. :Ko. S38 of 1966 decided on February 6, 1967), that th.e dec1s10n Ill Bhajan Lat's cas.: was conJimed in appeal by this Court l C; A. .Nos.\n\n1042 and 1043 of 1968 decided on August 21, 1972), that tnere 1s no material. difference between the rules and the procedure adopted in the instant. cases and those which were struck down in Bhajan Lal's cas<: and tliereforc the rules and the procedure followed herein must also lie struck down for the same reasons.\n\nThis argument overhloks the significant difkrencc between the rules struck down in Bhajan Lal's case and in Jagc Ram's _case, and h~ amended Ru!cs now in force.\n\nUnder the old Rule 36 (23-A) still-head <.iuty wluch was admitted! y in the nature of excise-duty was payable by the licensee even on quota not lifted by him. The Rule and Condition No. 8 founded on it were therefore struck down in Bhajan Lal's case as being beyond the scope of entry 51 of List II, the taxable event under the impugned Rule bing the sale and not the manufacture of liquor. Rule 36 was ;:mended on March 31, 1967 in order to meet the judgment in Bhaja11 Lal's case but the High Court found in J age Ram's case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of iiquor.\n\nThe 'position obtaining under the Rules as amended on March 22, 1968 which aro relevant for our purpcscs is in principle different as the stillhcad duty i-; nc.w only 0.64 paisc as against Rs. 17 .60 per litre which wa.s in force under the old Rules :md excise-duty as such is no longer payable on unlifted quota.\n\nThe principle governing the decisions in Bhajan Lat's case and J age Ram's case cannot, therefore, apply any longer. As the amount pcryable by tlie licensees on the basis of the bids offered by them in auctions and on the basis of 'Fixed and Assessed Fees' is neither a fee in the technical sense nor a tax but is in the nature of •he price of a privilege, there is no question of the FinanCial Commissioner lacking power to organize auctions so as to authorize tl1c recovery of nny amount which is not a fee properly so-called. The Fin'.'l'ncial Commissioner, under section 34 of the Act read with rule 59( :J-). has the power t? direct that licences may be granted on payment cf such fees, that 1s, such consideration as he may by rules prescribe.\n\nTt is noen to him to frame a rule. as he has in fact fr<imed Rule 35. dircc'.ing thot anv. class of licences may be grantd on pay- . ment of fees hxcd by auct1cn.\n\nOnce it is appreciated that auct'.ons\n\nre onlv a mode or mc'dium for ascertaining the best price obtainable for the grant ... of privilege to sell liquor. there would be no 'cont1adiction in terms' in directing. as Rule 35 does, that a class of \"licenc..:s. may be granted on the fee fixed by auction\".\n\n,· _,;1\n\n282 Sl'PREME COURT REPORTS [1975] 3 s.c .. R.\n\nThe demands for the payment of Fixed Fees made on venqorn of .Foreign Liquor holding licences in Forms L-3, L-4 and L-5 were .challenged on the atlditional ground that they were contrary to the .terms of Rule 12 and therefore illegal.\n\nUnder Rule 11, applicatiions for renewal of :licences for the following year have to be made before the end of October. By Rule 12 the Excise Inspector has to lay be, fore the Collector by the 7th January each year a list of licences re~ quiring renewal, togethc:r with a certificate of sales as provided by rule 30, to facilitate th1e determination of assessed fee. No order for renewal can be made after January 20 in respect of licences to be valid for the following financial year, except with the special sanction of the Financial Commissioner. The appellants holding licences for sale i0f Foreign Liquor applied duly for renewal of their licences anij orders granting renewals were passed before January 20. Later the Rules were amended on March 22 and March 30, 1968 under which the .appellants holding lic:ences in Form Nos. L-3, L-4 and L-5 became liable to pay fu:ed fees up to Rs. 20,000 per annum in addition to fees assessed under rule 31. The grievance of those appellants is that since their licences were renewed in January 1968, the amendments matle in March 1968 cannot apply to them and therefore the demand made on the basis of amended rules is illegal.\n\nIt is true that the amendments under which the appellants have been called upon to pay fixed fees were made after the licences were renewed. But the licences, though renewed in January 1968, were to be effective from April 1, 1968. The amendments having come into force before April l would govern the appellants' licences and they are, therefore, liable to pay the fixed fees un'der the amended Rules.\n\nLicences are granted under section 34 of the Act subject to . - the payment of such kes as the Financial Commissioner mav direc:t.\n\nThe rules made under section 59 ( d) authorise the impoition elf additional fees and such authorization would operate on all licen~s to be effective thereafter.\n\nWe are accordingly of the opinion that. the payments demanded frorµ the appellants are lawfully 'due to the State Government. Such\n\npayments are \"excise revenue\" within the meaning of section 60(1)(a) of the Act.\n\nSection 3(9) of the Act defines \"excise revenue\" to mean \"revenue derived or derivable from any payment:,\n\nd~y, fee, ta~, confiscation or fine, imposed or ordered under the pro v1s1ons of this Act, or of any other law for the time being in force relating to liquor or intoxicating drugs, but does not include a fine\n\nopposed by a court of law\". The payments due from the appellants\n\nholding licences in Form L-14A are also due to the Government \"on account of any contract relating to the excise revenue\" as provided in secti'On 60(1)(c) of the Act.\n\nIt is therefore open to the Government to recover its dues in the mann_er authorized by section 60.\n\nIn the result, all the appeals stand dismissed but in view of the circumstance that observations in Krishna Kumar Narula's case may have led the appellants to embark upon this litigation, there will be no order as to costs.\n\nV.M.K.\n\nAppeals dismissed.\n\n. '\n\n.;)", "total_entities": 242, "entities": [{"text": "HAR SHANKAR & ORS. ETC. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "HAR SHANKAR & ORS. ETC. ETC", "offset_not_found": false}}, {"text": "THE DY. EXCISE & TAXATION COMMR. & ORS", "label": "RESPONDENT", "start_char": 30, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "THE DY. EXCISE & TAXATION COMMR. & ORS", "offset_not_found": false}}, {"text": "January 21, 1975", "label": "DATE", "start_char": 71, "end_char": 87, "source": "ner", "metadata": {"in_sentence": "January 21, 1975 [A. N. RAY, c.:r.,"}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 89, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 161, "end_char": 177, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 181, "end_char": 202, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 210, "end_char": 218, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 317, "end_char": 338, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 346, "end_char": 354, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Excise Act, 1914", "label": "STATUTE", "start_char": 368, "end_char": 384, "source": "regex", "metadata": {}}, {"text": "Punjab Liquor Licence Rules, 1956", "label": "STATUTE", "start_char": 389, "end_char": 422, "source": "regex", "metadata": {}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 622, "end_char": 632, "source": "regex", "metadata": {"linked_statute_text": "Punjab Liquor Licence Rules, 1956", "statute": "Punjab Liquor Licence Rules, 1956"}}, {"text": "Sections 27 and 34", "label": "PROVISION", "start_char": 853, "end_char": 871, "source": "regex", "metadata": {"linked_statute_text": "Punjab Liquor Licence Rules, 1956", "statute": "Punjab Liquor Licence Rules, 1956"}}, {"text": "S. 34", "label": "PROVISION", "start_char": 1019, "end_char": 1024, "source": "regex", "metadata": {"linked_statute_text": "Punjab Liquor Licence Rules, 1956", "statute": "Punjab Liquor Licence Rules, 1956"}}, {"text": "Punjab Liquor Licence Rules, 1956", "label": "STATUTE", "start_char": 1029, "end_char": 1062, "source": "regex", "metadata": {}}, {"text": "Punjab Excise Act", "label": "STATUTE", "start_char": 1156, "end_char": 1173, "source": "regex", "metadata": {}}, {"text": "Ss. 3(9), 34, 59(d) and 60", "label": "PROVISION", "start_char": 1186, "end_char": 1212, "source": "regex", "metadata": {"linked_statute_text": "Punjab Excise Act", "statute": "Punjab Excise Act"}}, {"text": "Licence Rules, 1956", "label": "STATUTE", "start_char": 1234, "end_char": 1253, "source": "regex", "metadata": {}}, {"text": "March 12, 1968", "label": "DATE", "start_char": 1899, "end_char": 1913, "source": "ner", "metadata": {"in_sentence": "365 of 1971 are as follows : Consequent on the judgment dated March 12, 1968 of the High Court of Pun jab and Haryana in Civil Writ No."}}, {"text": "High Court of Pun jab and Haryana", "label": "COURT", "start_char": 1921, "end_char": 1954, "source": "ner", "metadata": {"in_sentence": "365 of 1971 are as follows : Consequent on the judgment dated March 12, 1968 of the High Court of Pun jab and Haryana in Civil Writ No."}}, {"text": "Ludhiana", "label": "GPE", "start_char": 2310, "end_char": 2318, "source": "ner", "metadata": {"in_sentence": "holding that the auctions for granting the right tci sell country liquor for the year 1968-69 had become ineffective, the first respondent held on March 23, 1968 an auction for granting the right to sell coµntry liquor at the 'Town Hall Vend' and 'Kailash Cinema Chowk Vend', Ludhiana."}}, {"text": "Punjab Liquor Licence Rules, 1956", "label": "STATUTE", "start_char": 2543, "end_char": 2576, "source": "regex", "metadata": {}}, {"text": "August 22. 1968", "label": "DATE", "start_char": 3058, "end_char": 3073, "source": "ner", "metadata": {"in_sentence": "On August 22."}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 3123, "end_char": 3155, "source": "ner", "metadata": {"in_sentence": "1968, the appellants filed their writ petition in the High Court of Punjab and Haryana."}}, {"text": "Murch 23, 1968", "label": "DATE", "start_char": 3214, "end_char": 3228, "source": "ner", "metadata": {"in_sentence": "They prayed for a direction quashing the auction held on Murch 23, 1968 and secondly, they asked that the respondents be restrained form enforcing the obfigations arising under the terms and conditions of the auction."}}, {"text": "!age Ram", "label": "OTHER_PERSON", "start_char": 3878, "end_char": 3886, "source": "ner", "metadata": {"in_sentence": "The High Court held that the State Legislature was competent to regu'late the business of vending intoxicating liquors, that various provisions of the Act showed that the State Government had the exclusive right to manufacture or sell intoxi cants, that the Financial Commissioner held the jurisdiction to determine the method of disposal of country liquor vends, that the rules under which the\n\nimpugned auctions were held are substantially different from those under which the auctions challenged in !", "canonical_name": "!age Ram"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 3910, "end_char": 3915, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 132(1) and 133(1)(a)", "label": "PROVISION", "start_char": 4814, "end_char": 4840, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 5059, "end_char": 5064, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Excise Act, 1914", "label": "STATUTE", "start_char": 5072, "end_char": 5095, "source": "regex", "metadata": {}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 6144, "end_char": 6161, "source": "ner", "metadata": {"in_sentence": "basically and in substance, similar to those which were stru.ck down by the Punjab High Court in .Tage Ram's case which decision was affirmed in appeal by the Supreme Court; and (7) The demand made by the Government for payment of large sums of money by hoteliers and bar-keepers who supply foreign liquor for consumption on their premises is arbitrary, without the authority of law and otherwise illegal."}}, {"text": ".Tage Ram", "label": "OTHER_PERSON", "start_char": 6165, "end_char": 6174, "source": "ner", "metadata": {"in_sentence": "basically and in substance, similar to those which were stru.ck down by the Punjab High Court in .Tage Ram's case which decision was affirmed in appeal by the Supreme Court; and (7) The demand made by the Government for payment of large sums of money by hoteliers and bar-keepers who supply foreign liquor for consumption on their premises is arbitrary, without the authority of law and otherwise illegal."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 6227, "end_char": 6240, "source": "ner", "metadata": {"in_sentence": "basically and in substance, similar to those which were stru.ck down by the Punjab High Court in .Tage Ram's case which decision was affirmed in appeal by the Supreme Court; and (7) The demand made by the Government for payment of large sums of money by hoteliers and bar-keepers who supply foreign liquor for consumption on their premises is arbitrary, without the authority of law and otherwise illegal."}}, {"text": "(1973] 1 S.C.R. 633", "label": "CASE_CITATION", "start_char": 10412, "end_char": 10431, "source": "regex", "metadata": {}}, {"text": "November 27. 1974", "label": "DATE", "start_char": 10707, "end_char": 10724, "source": "ner", "metadata": {"in_sentence": "1711-1721 and 1723 of 1974 decided on November 27."}}, {"text": "S4", "label": "PROVISION", "start_char": 11328, "end_char": 11330, "source": "regex", "metadata": {"statute": null}}, {"text": "(1967] 1 S.C.R. 548", "label": "CASE_CITATION", "start_char": 12683, "end_char": 12702, "source": "regex", "metadata": {}}, {"text": "Bhajan La/", "label": "OTHER_PERSON", "start_char": 13164, "end_char": 13174, "source": "ner", "metadata": {"in_sentence": "The principles governing the deciions in Bhajan La/'s case C.A. Nos.", "canonical_name": "Bhaja11 Lal"}}, {"text": "August 21,\n\n1972", "label": "DATE", "start_char": 13225, "end_char": 13241, "source": "ner", "metadata": {"in_sentence": "1642 and 1643 of 1968 decided on August 21,\n\n1972) and Jage Ram's case cannot, therefore, apply any longer. ["}}, {"text": "Jage Ram", "label": "OTHER_PERSON", "start_char": 13247, "end_char": 13255, "source": "ner", "metadata": {"in_sentence": "1642 and 1643 of 1968 decided on August 21,\n\n1972) and Jage Ram's case cannot, therefore, apply any longer. [", "canonical_name": "!age Ram"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 13757, "end_char": 13762, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1968", "label": "DATE", "start_char": 14665, "end_char": 14678, "source": "ner", "metadata": {"in_sentence": "But the licences, though renewed in January 1968, were to be effective from April 1, 1968."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 14879, "end_char": 14884, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59(d)", "label": "PROVISION", "start_char": 14998, "end_char": 15006, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(9) and 60(1)", "label": "PROVISION", "start_char": 15220, "end_char": 15237, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 60", "label": "PROVISION", "start_char": 15347, "end_char": 15352, "source": "regex", "metadata": {"statute": null}}, {"text": "I V. M. Tarkunde", "label": "OTHER_PERSON", "start_char": 16022, "end_char": 16038, "source": "ner", "metadata": {"in_sentence": "I V. M. Tarkunde (In C.A. Nos."}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 16068, "end_char": 16077, "source": "ner", "metadata": {"in_sentence": "1566, 485/69), A. K. Sen (In C.A. Nos."}}, {"text": "Tirdth Singh Munjral", "label": "LAWYER", "start_char": 16108, "end_char": 16128, "source": "ner", "metadata": {"in_sentence": "1559 & 1588/69) Tirdth Singh Munjral, (In all the\n\n258 SllPREME COURT REPORTS ll~75J 3 S.C:.R.\n\nappeals) except C.As.", "canonical_name": "Tirdth Singh Munjral"}}, {"text": "P. C.\n\nBhartari", "label": "OTHER_PERSON", "start_char": 16245, "end_char": 16260, "source": "ner", "metadata": {"in_sentence": "1537, 1554, 1557 and 1558/69) P. C.\n\nBhartari and O. C. Mathur (In all the appeals and B. P. Jhai (In all\n\nthe appeals except C.As."}}, {"text": "O. C. 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Qamaruddi11", "label": "OTHER_PERSON", "start_char": 16413, "end_char": 16427, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and M. Qamaruddi11, for the appel- 1a,1ts."}}, {"text": "K.. B. Rohtagi", "label": "OTHER_PERSON", "start_char": 16482, "end_char": 16496, "source": "ner", "metadata": {"in_sentence": "K.. B. Rohtagi and Tarachand Sharma, for the appellants, (In C.A. No."}}, {"text": "Tarachand Sharma", "label": "LAWYER", "start_char": 16501, "end_char": 16517, "source": "ner", "metadata": {"in_sentence": "K.. B. Rohtagi and Tarachand Sharma, for the appellants, (In C.A. No."}}, {"text": "Tirath Singh Munjral", "label": "LAWYER", "start_char": 16563, "end_char": 16583, "source": "ner", "metadata": {"in_sentence": "Tirath Singh Munjral and H. K. Puri, for the appellants On C.A; No.", "canonical_name": "Tirdth Singh Munjral"}}, {"text": "H. K. 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Jauhar", "label": "OTHER_PERSON", "start_char": 16833, "end_char": 16845, "source": "ner", "metadata": {"in_sentence": "2205/69) S. S. Jauhar (ln C.A. No."}}, {"text": "S. K. Gambhir", "label": "OTHER_PERSON", "start_char": 16870, "end_char": 16883, "source": "ner", "metadata": {"in_sentence": "1537 /69), S. K. Gambhir (In C.As."}}, {"text": "N. S. Das. Behl", "label": "OTHER_PERSON", "start_char": 16913, "end_char": 16928, "source": "ner", "metadata": {"in_sentence": "1548-1551/69) N. S. Das."}}, {"text": "Bishamber Lal", "label": "OTHER_PERSON", "start_char": 16960, "end_char": 16973, "source": "ner", "metadata": {"in_sentence": "1553-1555/69), Bishamber Lal, (In C.\n\nAs."}}, {"text": "Harbans Singh", "label": "OTHER_PERSON", "start_char": 17007, "end_char": 17020, "source": "ner", "metadata": {"in_sentence": "1557-1560/69) Harbans Singh, (In C.\n\nAs."}}, {"text": "N.\n\nGoswami", "label": "OTHER_PERSON", "start_char": 17056, "end_char": 17067, "source": "ner", "metadata": {"in_sentence": "1566-1573/69), N.\n\nGoswami (In C.A. Nos."}}, {"text": "P. Sharma", "label": "RESPONDENT", "start_char": 17135, "end_char": 17144, "source": "ner", "metadata": {"in_sentence": "P. Sharma, (In all the matters), for the respondents (In C.As.", "canonical_name": "P. Sharma"}}, {"text": "P. Shanna", "label": "RESPONDENT", "start_char": 17379, "end_char": 17388, "source": "ner", "metadata": {"in_sentence": "P. Shanna, for respondents (In C.As.", "canonical_name": "P. Sharma"}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 17475, "end_char": 17486, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-This is a group of appeals founded on certificates of fitness granted by the High Court of Punjab and Haryana under Articles 132(1) and 133(1) (a) and (c) of the Constitution."}}, {"text": "Articles 132(1) and 133(1)", "label": "PROVISION", "start_char": 17607, "end_char": 17633, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 17803, "end_char": 17814, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Department of Excise and Revenue, Government of Punjab", "label": "ORG", "start_char": 17946, "end_char": 18000, "source": "ner", "metadata": {"in_sentence": "Those petitions were filed by liquor contractors and hoteliers to challenge the demands made upon them by the Department of Excise and Revenue, Government of Punjab."}}, {"text": "Excise Department, Government of Punjab", "label": "ORG", "start_char": 18214, "end_char": 18253, "source": "ner", "metadata": {"in_sentence": "Those licences were granted to them on acceptance of their bids in the auctions held by the Excise Department, Government of Punjab."}}, {"text": "Punjab", "label": "GPE", "start_char": 18947, "end_char": 18953, "source": "ner", "metadata": {"in_sentence": "Auctio, ns for granting the right to sell country liquor for the year 1968-69 were initially held in various districts of Punjab on or about March 8, 1968 in pursuance of conditions of auction framed on FebruJry 19, 1968."}}, {"text": "March 8, 1968", "label": "DATE", "start_char": 18966, "end_char": 18979, "source": "ner", "metadata": {"in_sentence": "Auctio, ns for granting the right to sell country liquor for the year 1968-69 were initially held in various districts of Punjab on or about March 8, 1968 in pursuance of conditions of auction framed on FebruJry 19, 1968."}}, {"text": "FebruJry 19, 1968", "label": "DATE", "start_char": 19028, "end_char": 19045, "source": "ner", "metadata": {"in_sentence": "Auctio, ns for granting the right to sell country liquor for the year 1968-69 were initially held in various districts of Punjab on or about March 8, 1968 in pursuance of conditions of auction framed on FebruJry 19, 1968."}}, {"text": "February 6, 1967", "label": "DATE", "start_char": 19372, "end_char": 19388, "source": "ner", "metadata": {"in_sentence": "528 of J 966 decided on February 6, 1967), the High Court took the view that the licence fee ealised through the medium of auctions was really in the nature of \"still-head duty and that licences could not be called upon by the Government to pay still-head duty on the liquor quota which, un,<ler the terms of auctions, they were bound to lift but which in fact was not lifted by them."}}, {"text": "March 21, 1969", "label": "DATE", "start_char": 19737, "end_char": 19751, "source": "ner", "metadata": {"in_sentence": "On March 21, 1969 a meeting of the State Excise."}}, {"text": "March 23, 1968", "label": "DATE", "start_char": 20148, "end_char": 20162, "source": "ner", "metadata": {"in_sentence": "On March 23, 1968 the first respondent-the Deputy Excise and Taxation Commissioner, Jullundur-held an auction for granting the right to sell country liquor at the Town Hall Vend' and the 'Kailash Cinema Chowk Vend', Ludhiana."}}, {"text": "Deputy Excise and Taxation Commissioner, Jullundur", "label": "RESPONDENT", "start_char": 20188, "end_char": 20238, "source": "ner", "metadata": {"in_sentence": "On March 23, 1968 the first respondent-the Deputy Excise and Taxation Commissioner, Jullundur-held an auction for granting the right to sell country liquor at the Town Hall Vend' and the 'Kailash Cinema Chowk Vend', Ludhiana."}}, {"text": "Punjab Liquor Licence Rules, 1956", "label": "STATUTE", "start_char": 20598, "end_char": 20631, "source": "regex", "metadata": {}}, {"text": "section 60", "label": "PROVISION", "start_char": 22212, "end_char": 22222, "source": "regex", "metadata": {"statute": null}}, {"text": "Kailash Cinema Chowk Vend", "label": "ORG", "start_char": 23328, "end_char": 23353, "source": "ner", "metadata": {"in_sentence": "The Kailash Cinema Chowk Vend was auctionl:d on the basis of the fixed quota of 50,506 proof litres which is equivalent to D 1,34,685 bottles per year."}}, {"text": "Kailash Cinema. Chowk Vend", "label": "ORG", "start_char": 23561, "end_char": 23587, "source": "ner", "metadata": {"in_sentence": "50,091 for the Kailash Cinema."}}, {"text": "August 22, 1968", "label": "DATE", "start_char": 23959, "end_char": 23974, "source": "ner", "metadata": {"in_sentence": "On August 22, 1968 the appellants filed their writ petition in the High Court of Punjab and Haryana."}}, {"text": "Excise and Taxation Commissioner Punjab, Patiala", "label": "RESPONDENT", "start_char": 24467, "end_char": 24515, "source": "ner", "metadata": {"in_sentence": "Excise and Taxation Commissioner Punjab, Patiala, is the second respondent; and the State of PunJab is the third respondent.", "canonical_name": "Excise and Taxation Commissioner Punjab, Patiala"}}, {"text": "State of PunJab", "label": "RESPONDENT", "start_char": 24551, "end_char": 24566, "source": "ner", "metadata": {"in_sentence": "Excise and Taxation Commissioner Punjab, Patiala, is the second respondent; and the State of PunJab is the third respondent."}}, {"text": "Excise and Taxation Commissioner", "label": "RESPONDENT", "start_char": 24857, "end_char": 24889, "source": "ner", "metadata": {"in_sentence": "(1) The Excise and Taxation Commissioner (who in the\n\nPun.iab exercised the powers of a Financial Commissioner under the Act) had no jurisdiction to H determine the method of disposal of the country liquor vends;\n\nA .", "canonical_name": "Excise and Taxation Commissioner Punjab, Patiala"}}, {"text": "Financial Commissioner under the Act", "label": "STATUTE", "start_char": 24937, "end_char": 24973, "source": "regex", "metadata": {}}, {"text": "section 34", "label": "PROVISION", "start_char": 25128, "end_char": 25138, "source": "regex", "metadata": {"linked_statute_text": "Financial Commissioner under the Act", "statute": "Financial Commissioner under the Act"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 25851, "end_char": 25861, "source": "regex", "metadata": {"linked_statute_text": "Financial Commissioner under the Act", "statute": "Financial Commissioner under the Act"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 26199, "end_char": 26209, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 26455, "end_char": 26471, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 59", "label": "PROVISION", "start_char": 26861, "end_char": 26871, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 27459, "end_char": 27469, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 28472, "end_char": 28482, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Excise Act, 1914", "label": "STATUTE", "start_char": 28490, "end_char": 28513, "source": "regex", "metadata": {}}, {"text": "Supreme Conrt", "label": "COURT", "start_char": 29663, "end_char": 29676, "source": "ner", "metadata": {"in_sentence": "similar to those which were strncL down by the Punjab High Court in Jage Ram's ca; e and which decision ws aftirmcd i'.i appeal by the Supreme Conrt; and\n\n7."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 32739, "end_char": 32750, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 34426, "end_char": 34437, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Cheshire", "label": "GPE", "start_char": 37372, "end_char": 37380, "source": "ner", "metadata": {"in_sentence": "As sl'ated in Cheshire and Fifoot's 'Law of Contract' (Eighth Ed.,"}}, {"text": "Fifoot", "label": "OTHER_PERSON", "start_char": 37385, "end_char": 37391, "source": "ner", "metadata": {"in_sentence": "As sl'ated in Cheshire and Fifoot's 'Law of Contract' (Eighth Ed.,"}}, {"text": "Northern India Caterers (P) Ltd.", "label": "ORG", "start_char": 38355, "end_char": 38387, "source": "ner", "metadata": {"in_sentence": "485 and 2205 of 1969, filed respectively by Northern India Caterers (P) Ltd., and M/s. 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14", "label": "PROVISION", "start_char": 63443, "end_char": 63450, "source": "regex", "metadata": {"linked_statute_text": "the Bengal Excise Act,\n\n1909", "statute": "the Bengal Excise Act,\n\n1909"}}, {"text": "Jammu and Kashmir Excise Act, 1958", "label": "STATUTE", "start_char": 65191, "end_char": 65225, "source": "regex", "metadata": {}}, {"text": "section 20", "label": "PROVISION", "start_char": 65465, "end_char": 65475, "source": "regex", "metadata": {"linked_statute_text": "the Jammu and Kashmir Excise Act, 1958", "statute": "the Jammu and Kashmir Excise Act, 1958"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 65695, "end_char": 65705, "source": "regex", "metadata": {"linked_statute_text": "the Jammu and Kashmir Excise Act, 1958", "statute": "the Jammu and Kashmir Excise Act, 1958"}}, {"text": "section 20", "label": "PROVISION", "start_char": 65832, "end_char": 65842, "source": "regex", "metadata": {"linked_statute_text": "the Jammu and Kashmir Excise Act, 1958", "statute": "the Jammu and Kashmir Excise Act, 1958"}}, {"text": "Cooverjee", "label": "OTHER_PERSON", "start_char": 66173, "end_char": 66182, "source": "ner", "metadata": {"in_sentence": "The de'cisions in Cooverjee's case, Kidwai's case and Nagcndra l'\\ath's c2.se wcr.:", "canonical_name": "CooverJee"}}, {"text": "Nagcndra l'\\ath", "label": "OTHER_PERSON", "start_char": 66209, "end_char": 66224, "source": "ner", "metadata": {"in_sentence": "The de'cisions in Cooverjee's case, Kidwai's case and Nagcndra l'\\ath's c2.se wcr.:"}}, {"text": "Subha Rao", "label": "JUDGE", "start_char": 66443, "end_char": 66452, "source": "ner", "metadata": {"in_sentence": "Subha Rao C.J. speaking for the Court expressed the conclusion thus:\n\n\"We, therefor.;:.", "canonical_name": "Subha Rao"}}, {"text": "section 20", "label": "PROVISION", "start_char": 66783, "end_char": 66793, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Lotteries and Prize Competition Control and Tax Act, 1948", "label": "STATUTE", "start_char": 67149, "end_char": 67213, "source": "regex", "metadata": {}}, {"text": "Article 19(l)(g)", "label": "PROVISION", "start_char": 67322, "end_char": 67338, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Lotteries and Prize Competition Control and Tax Act, 1948", "statute": "the Bombay Lotteries and Prize Competition Control and Tax Act, 1948"}}, {"text": "State of Bombay", "label": "GPE", "start_char": 67549, "end_char": 67564, "source": "ner", "metadata": {"in_sentence": "On the other hand it was contended on behalf of the State of Bombay that as prize competitions were opposed to' public policy there could be no trade or business of promoting a prize competition and therefore the questi011 of infraction of the respondents' fundamental right under Article 19 ( 1) (g) did not arise."}}, {"text": "Article 19", "label": "PROVISION", "start_char": 67778, "end_char": 67788, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Lotteries and Prize Competition Control and Tax Act, 1948", "statute": "the Bombay Lotteries and Prize Competition Control and Tax Act, 1948"}}, {"text": "Das", "label": "JUDGE", "start_char": 67951, "end_char": 67954, "source": "ner", "metadata": {"in_sentence": "Speaking for the Constitution Bench, Das C.J. after examining several Australian and American cases observed :\n\nwe have no doubt that there are certain activities which can under no circumstances be regarded as trade or business or commerce although the usual forms and instruments are employed therein."}}, {"text": "Article 19(1)", "label": "PROVISION", "start_char": 69056, "end_char": 69069, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "England", "label": "GPE", "start_char": 69348, "end_char": 69355, "source": "ner", "metadata": {"in_sentence": "It was observetl : ' ·rt will be abundantly clear from the foregoing observations that the activities which have been condemned in this oountry from ancient times appear to have been equally discorn-c1.ge'd and looked upon with disfavour in England, Scotla:1d, the United States of America and in Australia in the cases referred to above."}}, {"text": "United States of America", "label": "GPE", "start_char": 69372, "end_char": 69396, "source": "ner", "metadata": {"in_sentence": "It was observetl : ' ·rt will be abundantly clear from the foregoing observations that the activities which have been condemned in this oountry from ancient times appear to have been equally discorn-c1.ge'd and looked upon with disfavour in England, Scotla:1d, the United States of America and in Australia in the cases referred to above."}}, {"text": "Australia", "label": "GPE", "start_char": 69404, "end_char": 69413, "source": "ner", "metadata": {"in_sentence": "It was observetl : ' ·rt will be abundantly clear from the foregoing observations that the activities which have been condemned in this oountry from ancient times appear to have been equally discorn-c1.ge'd and looked upon with disfavour in England, Scotla:1d, the United States of America and in Australia in the cases referred to above."}}, {"text": "Art. 19( l)(g)", "label": "PROVISION", "start_char": 70077, "end_char": 70091, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 70272, "end_char": 70280, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 19", "label": "PROVISION", "start_char": 70680, "end_char": 70688, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1 )(g)", "label": "PROVISION", "start_char": 70982, "end_char": 70996, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 71000, "end_char": 71008, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Krishna Kumar", "label": "OTHER_PERSON", "start_char": 71082, "end_char": 71095, "source": "ner", "metadata": {"in_sentence": "This dec'sion was also cited before the Court in Krishna Kumar's 1case but it said : \"This decision only lays down that gambling is not business or trade.", "canonical_name": "Krishna Kumar Narula"}}, {"text": "s 1", "label": "PROVISION", "start_char": 71096, "end_char": 71099, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14 and 19(1)", "label": "PROVISION", "start_char": 71945, "end_char": 71966, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Cooveriee", "label": "OTHER_PERSON", "start_char": 72029, "end_char": 72038, "source": "ner", "metadata": {"in_sentence": "After referring to the decisions in Cooveriee's case and Krishna Kumar Narula's case it was observed that one of the important purposes of selling the exclusive right to vend liquor was to raise revenue and since the Government had the power to sell exclusive privileges there was no basis for contending that the owner of the privileges could not decline to accept the highest bid if he thought that the price offered was inadequate.", "canonical_name": "CooverJee"}}, {"text": "Krishna Kumar Narula", "label": "OTHER_PERSON", "start_char": 72050, "end_char": 72070, "source": "ner", "metadata": {"in_sentence": "After referring to the decisions in Cooveriee's case and Krishna Kumar Narula's case it was observed that one of the important purposes of selling the exclusive right to vend liquor was to raise revenue and since the Government had the power to sell exclusive privileges there was no basis for contending that the owner of the privileges could not decline to accept the highest bid if he thought that the price offered was inadequate.", "canonical_name": "Krishna Kumar Narula"}}, {"text": "Hegde", "label": "JUDGE", "start_char": 72428, "end_char": 72433, "source": "ner", "metadata": {"in_sentence": "Hegde J., speaking for the Division Bench observed : ~\n\n\"The fact that the Government was the seller does not change the legal position once its exclusive right to deal with those privileges is concetled."}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 72706, "end_char": 72716, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 72724, "end_char": 72731, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 73012, "end_char": 73019, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "November 27,. 1974", "label": "DATE", "start_char": 73137, "end_char": 73155, "source": "ner", "metadata": {"in_sentence": "ln a recent judgment delivered on November 27,."}}, {"text": "Article 4", "label": "PROVISION", "start_char": 74208, "end_char": 74217, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Balsara", "label": "OTHER_PERSON", "start_char": 74680, "end_char": 74687, "source": "ner", "metadata": {"in_sentence": "Jn our opinion, the true position governing dealings in intoxicants -is as stated and reflected in the Constitution Bench decisions of this Court in Balsara's case, Cooverjee's case, Kidwai's case, Nagendra Nath\"s case;· Amar Chakraborty's case and the R.M.D.C. case."}}, {"text": "Nagendra Nath\"s", "label": "OTHER_PERSON", "start_char": 74729, "end_char": 74744, "source": "ner", "metadata": {"in_sentence": "Jn our opinion, the true position governing dealings in intoxicants -is as stated and reflected in the Constitution Bench decisions of this Court in Balsara's case, Cooverjee's case, Kidwai's case, Nagendra Nath\"s case;· Amar Chakraborty's case and the R.M.D.C. case."}}, {"text": "Amar Chakraborty", "label": "OTHER_PERSON", "start_char": 74752, "end_char": 74768, "source": "ner", "metadata": {"in_sentence": "Jn our opinion, the true position governing dealings in intoxicants -is as stated and reflected in the Constitution Bench decisions of this Court in Balsara's case, Cooverjee's case, Kidwai's case, Nagendra Nath\"s case;· Amar Chakraborty's case and the R.M.D.C. case."}}, {"text": "R.M.D.C.", "label": "OTHER_PERSON", "start_char": 74784, "end_char": 74792, "source": "ner", "metadata": {"in_sentence": "Jn our opinion, the true position governing dealings in intoxicants -is as stated and reflected in the Constitution Bench decisions of this Court in Balsara's case, Cooverjee's case, Kidwai's case, Nagendra Nath\"s case;· Amar Chakraborty's case and the R.M.D.C. case."}}, {"text": "Harinarayan J aiswal", "label": "OTHER_PERSON", "start_char": 74817, "end_char": 74837, "source": "ner", "metadata": {"in_sentence": "as interpreted in Harinarayan J aiswal's case and Nashirwar's case.", "canonical_name": "Harinarayan J aiswal"}}, {"text": "Nashirwar", "label": "OTHER_PERSON", "start_char": 74849, "end_char": 74858, "source": "ner", "metadata": {"in_sentence": "as interpreted in Harinarayan J aiswal's case and Nashirwar's case."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 76678, "end_char": 76687, "source": "ner", "metadata": {"in_sentence": "If we may repeat, Subba Rao C J. sai'd :\n\n\"W c, therefore, hold thut dealing in liquor is business and ~1 citizen has a right to do business in that commodity; but the State can make a law imposing reasonable restric· tions on the said right.", "canonical_name": "Subha Rao"}}, {"text": "Article 298", "label": "PROVISION", "start_char": 77422, "end_char": 77433, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Harinarayan Jaiswal", "label": "OTHER_PERSON", "start_char": 77599, "end_char": 77618, "source": "ner", "metadata": {"in_sentence": "As observed in Harinarayan Jaiswal's case. \"", "canonical_name": "Harinarayan J aiswal"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 77704, "end_char": 77714, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 141", "label": "PROVISION", "start_char": 77727, "end_char": 77738, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 27", "label": "PROVISION", "start_char": 78021, "end_char": 78031, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 78161, "end_char": 78171, "source": "regex", "metadata": {"statute": null}}, {"text": "section 59", "label": "PROVISION", "start_char": 78194, "end_char": 78204, "source": "regex", "metadata": {"statute": null}}, {"text": "Pel' Latham", "label": "JUDGE", "start_char": 81730, "end_char": 81741, "source": "ner", "metadata": {"in_sentence": "(1) Pel' Latham C. J. in Mathews v. Chickory Marketing Board, 60 C.L.R. 263,\n\n276."}}, {"text": "[1967] 1 S. C.R. 548", "label": "CASE_CITATION", "start_char": 82024, "end_char": 82044, "source": "regex", "metadata": {}}, {"text": "sections 27 and 34", "label": "PROVISION", "start_char": 82399, "end_char": 82417, "source": "regex", "metadata": {"statute": null}}, {"text": "Coovcrjee", "label": "OTHER_PERSON", "start_char": 82601, "end_char": 82610, "source": "ner", "metadata": {"in_sentence": "The argument that in Coovcrjee's case the impugned power having been exercised in respect of a centrally administrated area, the power was not fettered by legislative lists loses its relevance in the view we .", "canonical_name": "CooverJee"}}, {"text": "section 38", "label": "PROVISION", "start_char": 84206, "end_char": 84216, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa Excise Act", "label": "STATUTE", "start_char": 84235, "end_char": 84252, "source": "regex", "metadata": {}}, {"text": "section 38", "label": "PROVISION", "start_char": 84510, "end_char": 84520, "source": "regex", "metadata": {"linked_statute_text": "Orissa Excise Act", "statute": "Orissa Excise Act"}}, {"text": "section 38", "label": "PROVISION", "start_char": 84957, "end_char": 84967, "source": "regex", "metadata": {"linked_statute_text": "Orissa Excise Act", "statute": "Orissa Excise Act"}}, {"text": "sections 22", "label": "PROVISION", "start_char": 85223, "end_char": 85234, "source": "regex", "metadata": {"linked_statute_text": "Orissa Excise Act", "statute": "Orissa Excise Act"}}, {"text": "Section 22", "label": "PROVISION", "start_char": 85270, "end_char": 85280, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Punjab nd Haryaa", "label": "COURT", "start_char": 85491, "end_char": 85521, "source": "ner", "metadata": {"in_sentence": "The second decision on which the appellants laid stress was rent.icred by the High Court of Punjab nd Haryaa in !"}}, {"text": "S38", "label": "PROVISION", "start_char": 85739, "end_char": 85742, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhajan Lat", "label": "OTHER_PERSON", "start_char": 85804, "end_char": 85814, "source": "ner", "metadata": {"in_sentence": "S38 of 1966 decided on February 6, 1967), that th.e dec1s10n Ill Bhajan Lat's cas.:", "canonical_name": "Bhaja11 Lal"}}, {"text": "August 21, 1972", "label": "DATE", "start_char": 85908, "end_char": 85923, "source": "ner", "metadata": {"in_sentence": "1042 and 1043 of 1968 decided on August 21, 1972), that tnere 1s no material."}}, {"text": "Bhajan Lal", "label": "OTHER_PERSON", "start_char": 86066, "end_char": 86076, "source": "ner", "metadata": {"in_sentence": "cases and those which were struck down in Bhajan Lal's cas<: and tliereforc the rules and the procedure followed herein must also lie struck down for the same reasons.", "canonical_name": "Bhaja11 Lal"}}, {"text": "Jagc Ram", "label": "OTHER_PERSON", "start_char": 86301, "end_char": 86309, "source": "ner", "metadata": {"in_sentence": "This argument overhloks the significant difkrencc between the rules struck down in Bhajan Lal's case and in Jagc Ram's _case, and h~ amended Ru!cs now in force.", "canonical_name": "!age Ram"}}, {"text": "March 31, 1967", "label": "DATE", "start_char": 86770, "end_char": 86784, "source": "ner", "metadata": {"in_sentence": "Rule 36 was ;:mended on March 31, 1967 in order to meet the judgment in Bhaja11 Lal's case but the High Court found in J age Ram's case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of iiquor."}}, {"text": "Bhaja11 Lal", "label": "OTHER_PERSON", "start_char": 86818, "end_char": 86829, "source": "ner", "metadata": {"in_sentence": "Rule 36 was ;:mended on March 31, 1967 in order to meet the judgment in Bhaja11 Lal's case but the High Court found in J age Ram's case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of iiquor.", "canonical_name": "Bhaja11 Lal"}}, {"text": "J age Ram", "label": "OTHER_PERSON", "start_char": 86865, "end_char": 86874, "source": "ner", "metadata": {"in_sentence": "Rule 36 was ;:mended on March 31, 1967 in order to meet the judgment in Bhaja11 Lal's case but the High Court found in J age Ram's case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of iiquor."}}, {"text": "March 22, 1968", "label": "DATE", "start_char": 87067, "end_char": 87081, "source": "ner", "metadata": {"in_sentence": "The 'position obtaining under the Rules as amended on March 22, 1968 which aro relevant for our purpcscs is in principle different as the stillhcad duty i-; nc.w only 0.64 paisc as against Rs."}}, {"text": "section 34", "label": "PROVISION", "start_char": 87895, "end_char": 87905, "source": "regex", "metadata": {"statute": null}}, {"text": "March 22 and March 30, 1968", "label": "DATE", "start_char": 89585, "end_char": 89612, "source": "ner", "metadata": {"in_sentence": "Later the Rules were amended on March 22 and March 30, 1968 under which the .appellants holding lic:ences in Form Nos."}}, {"text": "section 34", "label": "PROVISION", "start_char": 90445, "end_char": 90455, "source": "regex", "metadata": {"statute": null}}, {"text": "section 59", "label": "PROVISION", "start_char": 90571, "end_char": 90581, "source": "regex", "metadata": {"statute": null}}, {"text": "section 60(1)(a)", "label": "PROVISION", "start_char": 90896, "end_char": 90912, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(9)", "label": "PROVISION", "start_char": 90926, "end_char": 90938, "source": "regex", "metadata": {"statute": null}}, {"text": "section 60", "label": "PROVISION", "start_char": 91565, "end_char": 91575, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_284_290_EN", "year": 1975, "text": "I '\n\n• '. 284\n\nSTATE OF GUJARAT & ANR . ..\n\nv. .. ·. PATEL CHATURBHAl NARSIBHAI & ORS.\n\nJamiar)' 21, 1975\n\n R C J H R KHANNA AND P. K. OoswAMr, JJ.]\n\n[A. N.\n\nAY, • • , • • . . , .\n\nA mrmlrd bv Lm!tl AcqulsiltOII (Gujarat Um{icario\" B Land Acqmsft1on ct, as3a t>ctions '39, 40 ami 41 and Land Acquisition o11d .Amc~1dmem) Ac!l9f~1;1 1.! 4-Acqtdsitloll of la11d for a company-£11quiry (Con.lpmw:s) .Rctlt>s, 196·1 pp/i erioll by compma• ro Golemment for acquisition by Collector m uspccl 0 a t b 1 d. . of land-Land owtze-r, if tmitfctl to \" lear • . . .\n\n1 1960 there was a r.; qucst by the responJ-.:nt }aroda Industrial- De:•elopmcnt\n\nralio~ (the compnny) ro the State for ncqumng Jan~ _f9r expansaon of th~ Corp I c t r the romp\"'nv Tht: Special Lnnd AcqUJsltton Officer, Baroda, JndusltJa .r.:.stn c o '-' \" 1 • h 1 d d l C ex ressed the opinion that th~: acquiition w; tS ncce~ .. ary ns t e an .was a JO nmg\n\np . . d 1 d r the Cump•tn\\' :mJ th It \\\\'US the only lund nvntlable. There the occuple . aynbyotiJ~ Stat' (j;, crn1 .. nt mdcr Rule 4 of the Lnnd Acqui-; ition wa5 an enqu1r 40 • • ~; • h 'fi t' ·•\"t d 4 (Companies) Rules. The c:nquiry \\\\Wi h::1d pnor to t e nou ca ton u .. e .March, 1961.\n\nThere was an asret:ment between the State Govrnment and the Company.\n\nTbi5 ugrcement was aher the Swre Go\\'crnment had g1ven consent to the ocqui, i\n\nlion. lhe notifiication under s. 4 ws. however, cnncellcd on 28 September, 19$6.\n\nD On 29 5-ptembcr, J)l56, thc:re was n fresh notification under s. 4 of the Act.\n\nSubsequent to t1tat nolltic::aion there was nn enqt1iry under s. S~A of the Act. The\n\nrespondent, \\iz.. the ownc:r of th.: lunJ Jiled oh)tctinn~. There wn.s n report on J l Decemb.!r, 1968 on that enquir~· liiHkr ~. 5-A of the Act thut the land sought to b: acquired was sit4b:(' tu: th~ comp; wy and w::e<J not in excess o( its require men~ •\n\nOn January lit ! %9 there Wil\"i ~~ nolifkution unJer ~. 6 of the t\\cl. Along ?tith the notifle1tion unJt:r s. 6 ot :he Act an asrcement dated 13 January. 1969 E. . f?etween the cornplny anJ the Sto.t~ n~ conlemplatc:J in s. 41 of th: Act wa~ putr\n\n}shed on 18 Junuary, l')fj~ .\n\nTit.: ,·<!sp.:mt.lcnt land owner challenB!!d the notifications undur ss. 4 :tnd 6 a( the Ac~. The Hih Courr ullowed 1he petition.\n\nThi~ appe:tl has b;:en prdencJ by c;:rtJ{kate {!ra n!d by the High Court.\n\nOn behalf of the Sl;.!e it wa~ co t , j •.I 11 h holding that the notHkMico ud~!r •n e6n cf :1t t e i1gh Colt; l wns wrong in\n\n- The enquiry under r. 4 ;~ n 1 : . _ . 0 t , Act '\"M bad for th~e reason,. not t'tl d b h . . n lh sll.llllHithe enqutry nd the owner of rh .. l'lnJ is F en 1 e lo : l!ard m th 't •nqir\\' s, d h . . \" • Act is subjecthe und h t'orm~, f \"0 th · h , co~ I! sarnf<•C!!on u ndcr ~. 4 of he coorJuctl!d Ulllcr r 4 rhiru th n\n\nc. l\\t~ 0 th•!. rcpun puruant to an enqmry of the Comj):my. u'nd: lht\"rcfoe. : enqth•rr un.:1c.r r. 4 is to dtcrmine thl! bonnlide& fleard. Fourth. ofh:r the rnc 11\n\n1r;·:'c eq rr~ the o~ nr ot the lund need not be not inue n notifkation under ~ ~! r. . 1o; m:tJ.i! th: Govrnmt:nt mJy or may person concerned , jz. th~ 0 , n~ f Flflh. If o ~Ot1ficul1on under s. 4 i~ isued the of le ,.t.ct to mal>e bjcctio~~. r Fi ~f .JuhJ Will l!:t Hn Oflf'or!Un!tr unJc~ S: 5-A c:nquuy.fn uerci-, c or execu!ive ow fli.l > • t. c enqt.ury. undc, or r. 4 .t'i a preflmm:uy !Ill opmron for or :!i<airnc, t the i .. u; n er. f TtJsli~'1Q !-IIrv ''for c<JIII!ctm: datn to form G mg d:ua the que1tion of \\'iol;, tin\" iJ g 0 . 'Lott ~~.af10n. In uh cnqurry for collccl• • ny riG•th of th-: land owner doe' not arise.\n\nRl!jecting the cont.:nlion• und di. n ; .· • a.\n\nHEJ 0 Th ' 1 '\"tng t, e llflf'ltul ; • : e enquiry ll!''ll..lcr r 4 h • iu~~:t; 1~;~0~·:'crs t~; r 't.! Co; nna~ .. ,?h'~~ ~~ ... ~}~~\n\n1fo11ctor h ro ubn1ir a rrort . price nod tuh k 0\"1 y,.h ' .t 1; . per'lon~ inh:r~~~~d ~.;• •fi!roson:Jbl~ C!fTort1 to Bet :>uch ot the land h' h o_r OJ\\C: .ule:J. Th\"' per'lon er~ 0 on rnrmnt of ra'ionablc: h:111 to how h 'f 11 a• rroo\\ed lo b: u.~:quirc-d. , ThleCtcrJ th.:rein ttr~ the ow'1r!l II ow f b le c:omn; ny made neoti&t' eompnny n~ .such nn enamry orrs 0 t e lnd are .. therdort. tOiitltd 10 10\" .. ' wirh the owners ot the Jand. The P P se of protnt or d•rro\\'ing the rcanub? .. heard ur such an enquiry tor the\n\ne effort'S of the company to get such\n\nland by neaotiation. The contention on behalf of the Stale that the owners of the land wil aet an opportunity when an enquiry is made under s. 5-A of the Act is equally unsound. S. 17 of the Act provides that the appropriate Government may direct that the provjsions'of s. 5-A shall not apply, and if it does so direct a declaration may be made under s. 6 at any time after the publication of the notification under s. 4 of the Act. Therefore the enquiry under s. 5-A may not be held.\n\n[287 H-288] · ·\n\nThe nature of objections under rules framed in pursuance of the power~ conferred by s. 55 of the Act shows that the matters which are to be enquired into under r. 4, and in particular, that the Company made all efforts to get such land by negotiation with the persons interested thereon on payment of price and such efforts failed is not one of the objections which can be preferred in an enquiry ·\n\nunder s. 5-A. It is true that in the present case there was an enquiry under s. S-A of the Act but the enquiry was also before the agreement between the State and the Company under s. 41 of th~ Act and without any enquiry under s. 40 of the Act to enable the Government to give its consent. In view of the Gujarat Amendment Act, 1963, deleting the words \"either of the report of the Collector under s.\n\nS-A of sub-s. (2) or\" in sections 40 and 41 of the Act, the enquiry under s. 5-A is not an enquiry within the meaning of s. 40 of the Act. [288 E-Gt 28!> B-F]\n\nR. L. Arora v. State of U.P. [1962] 2 Supp. S.C.R. 149, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1508 of 1971.\n\nFrom the Judgment and Order dated the 30th March 1971, of the Gujarat High Court in Spl. C. Appln. No. 622 of 1969.\n\nR. H. Dhebar and M. N. Shroff, fr the appellants.\n\n(. N. Shroff, for respondent Nos. 1R3.\n\nM. C. Bhandare and Urmila Sirur, for respondent no. 4.\n\nThe Judgment of the Court was delivered by\n\nR~Y, C.J. This appeal by certificate raises the question whether the notifications dated 29 September. 1965 and 18 January, 196? issued under sections 4 and 6 respectively of the Land Acquisition Act hereinafter referred to as the Act are lawful.\n\nIn 1960 there was a request by the respondent Baroda Indtrial ' Development Corporation hereinafter referred to as the Company to the State for acquiring land for expansion of the Industrial Estate of the Company. The Special Land Acquisition Officer, Baroda e:t pressed the opinion that the acquisition \\Yas necessary as the land was\n\nadjoining the occupied land of the Company and that was the only land available.\n\nOn 4 MarchJ 1961 there was a notification under section 4 of the Act. On 22 August, 1961 there was an agreement between the State Government and the Company in accordance with the provisions contained in section 41 of the Act.\n\nIt may be stated here that the decision of this Court in R. L .\n\nArora v. State of U.P.(li) was that in case of acquisition for a Com pany, the Government could give its C9nsent if the acquisition was\n\nnee<Jed for the construction of some work which was likely to prove useful to the public.\n\n(1) [1962] 2 Supp. S.C.R. 149.\n\n4-423SCI!75\n\nSUPREME COURT R.EI'O.RTS [1975] 3 s.c.l.\n\nIn 1962 Section 40 of the Act was amended to the effect tlai the Government could not give consent to the acquisition of land for a company unless the Government was satisfied by holding au enquiry\n\nas fully mentioned in the section.\n\nIn the context of the decision of this' Court in Arora's case (supra) the Central Government in 1963 in exercise of powers conferred by section 55 of the Act made rules for the guidance of the State Governments known as the Land Acquisition (Companies) Rules, 1963 hereinafter referr~ to as the Companies Acquisition Rules.\n\nRule 4 of the Companies Acquisition Rules provids that wheJtJ.ever a Company makes an application to the appropriate Government for acquisition of any land, that Goverent shall .direct the Collector to submit a report on the matters mentioned therem. Those matters are ( 1) that the Q:>mpany has made its best endeavour to find out lands in the locality suitable for the purpose of the acquisition; (2) that the company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed; (3) that the land proposed to be acquired is suitable for the purpose; ( 4) that the area of land, pro, posed to be acquired is not excessive; ( 5) that the Company is in a position to utilise the land expeditiously; and ( 6) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land.\n\nSub-rule (2) of Rule 4 aforesaid further provides that the Collector shall, after giving the Company a reasonable opportunity to make any representation in this behalf, bold an enquiry into the matters referred to above. The Collector under sub-rule (3) of Rule 4 aforesaid shall submit a nport to the appropriate Government. Sub-rule ( 4) of Rule 4 aforesaid provides that no declaration shall be made by the appropriate Government under section 6 of the Act unless ( i) the appropriate Government has consulted the committee and has considered the report under this Rule and the report, if any, submitted under Section 5A of the Act; and (li) the agreement under section 41 of the Act has been executed by the Company.\n\n. Gujarat Act 20 of 1965 came into effect on 9 July, 1965. By section 18 of the Gujarat Act called the Land Acquisition (Gujarat Uni- 1kation and Amendment) Act, section 39 of the Act was amended.\n\nhe result o~ the amenGmnt of. section 39 of the Act is that the provisiOns of sect10n.s 4 to 3 7 mcluslVe of the Act cannot be put into force unless the pr1~VIous consent of .the appropriate Government is obtained :.md unless tbe Company has executed an agreement mentioned in sec tions foll0wing section 39 of the Act.\n\nIn the presnt case there was an enquiry by the State Government\n\nuner Rule 4 of .the Land Acquisition (Companies) Rules. The enq.mry was held prror to the notification dated 4 March, 1961 under'sectlon 4 of the Act. On 22 August, 1961 there was an agreement between the State Government and the Company. This agreement was after the State Government had given consent to the acquisition.\n\n4 November, 1961. the notification under section 4 of the Act was corrected with regard. to the survey numbers. The notification under section 4 of the Act dated 4 March/4 November, 1961 was however cancelled on 28 September, 1965.\n\nOn 29 September, 1965 there was a fresh notification under sec-· tion 4 of the Act. Subsequent to that notification there was an enquiry under section 5-A of the Act. The respondent, viz., the owner of the land filed objections. There was a report on 11 December, 1968 on that enquiry under section 5-A of the Act that the land sought to be\n\nacquird was suitable for the company and was nor in excess of the mquirements.\n\nOn 18 January, 1969 there was a notification under section 6 of the Act. Along with the notification under section 6 of the Act an agreement dated 13 January 1969 between the company and the State as contemplated in section 41 of the Act was published on 18 J nnu:-ry\n\n1969. .\n\nThe respondent land owner challenged the notification dated 29 September, 1965 under section 4 of the Act as well as 1he notification under section 6 of the Act dated 18 January, 1969. The High Court accepted the contention of the re.spondet that the enquiry cotemplat cd under rule 4 of the Land Acquisition (Companies) Rules had not\n\nbeen held lawfully, and, therefore, the notification under section 6 of the Act was illegal. The reason given by the High Court was that the enquiry under rule 4 contemplated giving opportunity to the owner of the land to make effective representation against the proposed acquisition. The High Court held that the enquiry under rule 4 was bad because no opportunity had been given to the owners of the land.\n\nOn behalf of the State it was contended that the High Court was wrong in holding that the notification under section 6 of the Act was bad br these reasons. The enquiry under rule 4 is an administrative enquiry and the owner of the land is not entitled to be heard in that enquiry. Second, the satisfaction under section 4 of the Act is subjective and is formed on the basis of the report pursuant to an enquiry conducted under rule 4. Third, the enquiry under rule 4 is to deter- . mine the bonafides of the Company, and, therefore, in such enquiry the owner of the land need not be heard. Fourth, after the report under rule 4 is made the Government may or may not issue a notification under section 4. Fifth, if a notification under section 4 is issued the person concerned viz, the owner of the land will get an opportunity under section 5-A of the Act to make objection. Finally, the enquiry under Rule 4 is a preliminary enquiry in exercise of executive power.\n\nThis enquiry is for collecting data to form an opinion for or against the issuing of notification. In such enquiry for collecting data the qtrcstion of violating any rights of the land owner does not arise.\n\nThe contention of the State that the enquiry under rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under rule 4 shows that the Collector is to submit a rctport among other matters that the Company bas made all\n\nSUPREME COURT REPORTS [1975.1 3 s.c.R.\n\nreasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons iterested therein are the owners of the lap.d which is proposed to be acquired. The Company at such an enquiry has to show that the company made negotiations with the owners of the land. The ow11ers of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the company to get suc4 land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an <mquiry is mde under section S~A of the Act is equally unsound. Section 17 of the Act provides that the appmpriate Government may direct that the provisions of section 5-A shall not apply, and if it does so direct a declaration may be made. under section 6 at any time after the publication of the notification under section 4 of the Act. Therefore, the enquiry under section 5~A may not he held.\n\nThere is another reason why the enquiry under rule 4 should be in the presence oi the. owners of the land, Reference may be made to\n\nth~ Rules for the guidance of officers in dealing with objections under secjon 5-A of the Act. These rules are made in exe.rcise of the powers conferred by section 55 of the Act. Under these Rules it is stated that the objections _?re of the following nature : (i) the notified purpose is not genuinely or properly a public purpose; (ii) the land notified is not suitable for the purpose for which it is notified; (iii) the Jand is not so well suited as other land; (iv) the area proposed :is excessive; (v) the objectors' land has been selected maliciously or vexatiou:; ly; (vi) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will tke away imponant public right of way or other convenieoes. or will desecrate religious buildings, graveyard and the like. The nature of objections under these rules shows that the matters which are to be enquired into under rule 4, and in particular, that the Company made all efforts to get such land by negotiation with the persons interested thereon on payment of price and such efforts failed is not one of the objections which can be preferred in an enquiry under section 5-A. It is true that in the present case there was an enquiry under section S~A of the Act but the enquiry was also before the agreement between the State and the Company under section 41 of the Act and without any enquiry under section 40 of the Act to enable the Government to give its consent.\n\nThe respondent put in the forefront the contention that the agreement between the Company and the State under section 41 of the Act i u the present case, dated 13 January, 1969. a:1d t>ublishe.d on 1 S January 1969 was subsequent to the notification under sectiot1 4 of the Act, dated 29 September, \"1965 and therefore the said notification wns in violation of the provisions contained in section 39 of the Act and therefore invalid.\n\nThe f; and Acquisition .(Gujarat Unification and Amendment) Act, 1963 w]uch amended section 39 of the Central Act enacted that the provisions of sections 4 to 37 inclusive of the Act shall not be put in\n\n(?TJJARAT v. CHATURBHAI (Ray, C.J.) 289\n\nforce in order to acquire land for any Company, unless there is pre vious consent of the State Government or the Company shall have executed the agreement. On behalf of the State it was said that the agre~~ ment in the year 1961 would suffice. This is only to be stated to be rejected because the notification under section 4 o'f. the Act was cancelled by the State on 28 September, 1965. Thereafter fresh proceedings started. FUrther, the agreement in the year 1961 did not survive, because a fresh agreement was made on 18 January, 1969, which was pubHshed on 18 J anl)ary 1969.\n\nThe provisions contained in sections 38 to 41 of the Act indicate that the provisions of sections 4 to 3 7 of th_e Act cannot be applied to acquire land for any company unless the State Government gives previous consent threto and the oompany executes n agreement with the State as mentioned in section 41 of the Act. .Second1 section 40 of the Act indicates that the. State Government cannot give consent unless there is an enquiry as provided in that section. It is IWticeable that\n\nany enquiry under section 5-A of the Act is not an enquiry within the meaning of section 40 of the Act. The reason is that the Gujarat.\n\nAmendment Act 1963 being Gujarat Act No. 20 of 1965 deleted the words \"either on the report of the Collector under section 5-A subsection (2) or\" from section 40 of the principal Act.\n\nSimilarly, in section 41 of the Act as a result of the Gujarat Amendment Act the words \"either on the reP<>rt of the Collector under section 5-A subsection (2) or'' were 'deleted. The effect of th~ deletion of those words by the Gujarat Amendment Act is that the enquiry under section 5-A is not an enquiry within the meaning of section 40 ()f the Act.\n\nIn the present case, the enquiry under rule 4 of the Land Acquisi~ tion (Companies) Rules was held before the notifications under sections 4 and 6 of the Act were issued in the year 1965. The enquiry pursuant to the notifications in the year 1961 and previous to the fresh notifications in '1965 is of no effect in law for two principal reasons.\n\nFirst, the 1961 notification was cancelled, and, therefore, all steps taken thereunder became ineffective.\n\nSecond, the enquiry under rule 4 in 1961 was held without giving opportunity to the land owner rcspon~ dent, and, therefore, the enquiry is invalid in law.\n\nThe affidavit evidence on behalf of the Government was thnr an enquiry was held under section 40 of the Act in the month of July, 1965 and there was a report on 25 August, 1965. The nquiry under section 40 of the Act is equally of no avail for similar r.:::.bous why the enquiry Under Rule 4 in 1961 is of no effect in law.\n\n290 ltUPREME COURT REPORTS [1975] ~~ s.c.R.\n\nFor tht-:se reason~, wr, hold that the aisition proceedings are vitiated. There was no. compliance with the provisions of se!; tion 39 of the Act. There was no prior agreement between the State and the Company before provisions contained in sections 4 to 37 were put into force. The. enquiry under section SA of the Act in the pr~ent case~ does not satisfy the provisions contained in_ rule 4 of the Companies Acquisition Rules. The owners of the land are entitled to opportunity of being heard in an enquiry under rule 4 and enquky under section 40 of the Act. No such. opportunity was given to the owners.\n\nThe appeal, therefore, fails and is dismissd. The State will pay costs to Respondents No. 1, 2 and 3.\n\nV.M.K. 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Companies Acquisition Rules."}}, {"text": "section 55", "label": "PROVISION", "start_char": 7900, "end_char": 7910, "source": "regex", "metadata": {"statute": null}}, {"text": "Goverent", "label": "OTHER_PERSON", "start_char": 8251, "end_char": 8259, "source": "ner", "metadata": {"in_sentence": "Rule 4 of the Companies Acquisition Rules provids that wheJtJ.ever a Company makes an application to the appropriate Government for acquisition of any land, that Goverent shall .direct the Collector to submit a report on the matters mentioned therem."}}, {"text": "section 6", "label": "PROVISION", "start_char": 9491, "end_char": 9500, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5A", "label": "PROVISION", "start_char": 9665, "end_char": 9675, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 9717, "end_char": 9727, "source": "regex", "metadata": {"statute": null}}, {"text": "9 July, 1965", "label": "DATE", "start_char": 9819, "end_char": 9831, "source": "ner", "metadata": {"in_sentence": "Gujarat Act 20 of 1965 came into effect on 9 July, 1965."}}, {"text": "section 18", "label": "PROVISION", "start_char": 9836, "end_char": 9846, "source": "regex", "metadata": {"statute": null}}, {"text": "section 39", "label": "PROVISION", "start_char": 9936, "end_char": 9946, "source": "regex", "metadata": {"statute": null}}, {"text": "section 39", "label": "PROVISION", "start_char": 10002, "end_char": 10012, "source": "regex", "metadata": {"statute": null}}, {"text": "s 4 to 3", "label": "PROVISION", "start_char": 10058, "end_char": 10066, "source": "regex", "metadata": {"statute": null}}, {"text": "section 39", "label": "PROVISION", "start_char": 10269, "end_char": 10279, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 10723, "end_char": 10732, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 10817, "end_char": 10826, "source": "regex", "metadata": {"statute": null}}, {"text": "4 March/4 November, 1961", "label": "DATE", "start_char": 10844, "end_char": 10868, "source": "ner", "metadata": {"in_sentence": "The notification under section 4 of the Act dated 4 March/4 November, 1961 was however cancelled on 28 September, 1965."}}, {"text": "28 September, 1965", "label": "DATE", "start_char": 10894, "end_char": 10912, "source": "ner", "metadata": {"in_sentence": "The notification under section 4 of the Act dated 4 March/4 November, 1961 was however cancelled on 28 September, 1965."}}, {"text": "29 September, 1965", "label": "DATE", "start_char": 10918, "end_char": 10936, "source": "ner", "metadata": {"in_sentence": "On 29 September, 1965 there was a fresh notification under sec-· tion 4 of the Act."}}, {"text": "section 5", "label": "PROVISION", "start_char": 11058, "end_char": 11067, "source": "regex", "metadata": {"statute": null}}, {"text": "11 December, 1968", "label": "DATE", "start_char": 11166, "end_char": 11183, "source": "ner", "metadata": {"in_sentence": "There was a report on 11 December, 1968 on that enquiry under section 5-A of the Act that the land sought to be\n\nacquird was suitable for the company and was nor in excess of the mquirements."}}, {"text": "section 5", "label": "PROVISION", "start_char": 11206, "end_char": 11215, "source": "regex", "metadata": {"statute": null}}, {"text": "18 January, 1969", "label": "DATE", "start_char": 11340, "end_char": 11356, "source": "ner", "metadata": {"in_sentence": "On 18 January, 1969 there was a notification under section 6 of the Act."}}, {"text": "section 6", "label": "PROVISION", "start_char": 11388, "end_char": 11397, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 11444, "end_char": 11453, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 11553, "end_char": 11563, "source": "regex", "metadata": {"statute": null}}, {"text": "18 J nnu:-ry\n\n1969", "label": "DATE", "start_char": 11592, "end_char": 11610, "source": "ner", "metadata": {"in_sentence": "Along with the notification under section 6 of the Act an agreement dated 13 January 1969 between the company and the State as contemplated in section 41 of the Act was published on 18 J nnu:-ry\n\n1969. ."}}, {"text": "section 4", "label": "PROVISION", "start_char": 11700, "end_char": 11709, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 11755, "end_char": 11764, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 12010, "end_char": 12019, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 12470, "end_char": 12479, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 12673, "end_char": 12682, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 13054, "end_char": 13063, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 13096, "end_char": 13105, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 13194, "end_char": 13203, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 14617, "end_char": 14627, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 14713, "end_char": 14722, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 14800, "end_char": 14809, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 14870, "end_char": 14879, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 14921, "end_char": 14930, "source": "regex", "metadata": {"statute": null}}, {"text": "section 55", "label": "PROVISION", "start_char": 15240, "end_char": 15250, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 16256, "end_char": 16265, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 16441, "end_char": 16451, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 16493, "end_char": 16503, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 16672, "end_char": 16682, "source": "regex", "metadata": {"statute": null}}, {"text": "1 S January 1969", "label": "DATE", "start_char": 16760, "end_char": 16776, "source": "ner", "metadata": {"in_sentence": "a:1d t>ublishe.d on 1 S January 1969 was subsequent to the notification under sectiot1 4 of the Act, dated 29 September, \"1965 and therefore the said notification wns in violation of the provisions contained in section 39 of the Act and therefore invalid."}}, {"text": "section 39", "label": "PROVISION", "start_char": 16951, "end_char": 16961, "source": "regex", "metadata": {"statute": null}}, {"text": "section 39", "label": "PROVISION", "start_char": 17081, "end_char": 17091, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 4 to 37", "label": "PROVISION", "start_char": 17142, "end_char": 17158, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 17558, "end_char": 17567, "source": "regex", "metadata": {"statute": null}}, {"text": "18 J anl)ary 1969", "label": "DATE", "start_char": 17804, "end_char": 17821, "source": "ner", "metadata": {"in_sentence": "FUrther, the agreement in the year 1961 did not survive, because a fresh agreement was made on 18 January, 1969, which was pubHshed on 18 J anl)ary 1969."}}, {"text": "sections 38 to 41", "label": "PROVISION", "start_char": 17852, "end_char": 17869, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 4 to 3", "label": "PROVISION", "start_char": 17913, "end_char": 17928, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 18119, "end_char": 18129, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 18151, "end_char": 18161, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 18327, "end_char": 18336, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 18390, "end_char": 18400, "source": "regex", "metadata": {"statute": null}}, {"text": "Amendment Act 1963", "label": "STATUTE", "start_char": 18446, "end_char": 18464, "source": "regex", "metadata": {}}, {"text": "section 5", "label": "PROVISION", "start_char": 18561, "end_char": 18570, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act 1963", "statute": "Amendment Act 1963"}}, {"text": "section 40", "label": "PROVISION", "start_char": 18597, "end_char": 18607, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act 1963", "statute": "Amendment Act 1963"}}, {"text": "section 41", "label": "PROVISION", "start_char": 18645, "end_char": 18655, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act 1963", "statute": "Amendment Act 1963"}}, {"text": "section 5", "label": "PROVISION", "start_char": 18764, "end_char": 18773, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act 1963", "statute": "Amendment Act 1963"}}, {"text": "section 5", "label": "PROVISION", "start_char": 18908, "end_char": 18917, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act 1963", "statute": "Amendment Act 1963"}}, {"text": "section 40", "label": "PROVISION", "start_char": 18960, "end_char": 18970, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act 1963", "statute": "Amendment Act 1963"}}, {"text": "sections 4 and 6", "label": "PROVISION", "start_char": 19115, "end_char": 19131, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act 1963", "statute": "Amendment Act 1963"}}, {"text": "section 40", "label": "PROVISION", "start_char": 19683, "end_char": 19693, "source": "regex", "metadata": {"statute": null}}, {"text": "25 August, 1965", "label": "DATE", "start_char": 19758, "end_char": 19773, "source": "ner", "metadata": {"in_sentence": "The affidavit evidence on behalf of the Government was thnr an enquiry was held under section 40 of the Act in the month of July, 1965 and there was a report on 25 August, 1965."}}, {"text": "section 40", "label": "PROVISION", "start_char": 19792, "end_char": 19802, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 4 to 37", "label": "PROVISION", "start_char": 20208, "end_char": 20224, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 20506, "end_char": 20516, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_3_291_300_EN", "year": 1975, "text": "SADHU ROY\n\nTHE STATE OF WEST BENGAL January 22, 1975\n\n[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]\n\nMai11tena11ce of Internal Security A.ct (26 of 1971) S. 3.-Preventive detention after discharge by Crlmi11al Court for offences which are grounds of detention-When valid.\n\nThe petitioner was detained under s. 3 of the Maintenance of Internal Security Act, 1971. The grounds of detention were that twice on the same day he and his associates, rmed with dangerous weapo!lq, committed thefts of overhead copper.wire, the first time in broad day light and then at about mid night. On\n\nboth oecasions they were challenged by public servants, memben of the para pol ice force, attached to the railway administration but the petitioner a:nd his assciCiates escaped after attacking the members of the Railway Police Force. The petitioner waa arrested in connection with the two incidents. His name was not m the F.I.R. ilut was gathered in the course of investigation. The police, howe1•er reported that the petitioner being a dangerous person. witnesses were afraid\n\nto depose against him in open court and so he was discharged. He was, however, tai:en into custody the same day of discharge pursuant to the detention order.\n\nAllowing the petitiort :hallenging the detention, - HELD : 1 (a) The discharge or acquittal by a criminal court is not necessarily a. bar to preventive detention on the same facts for 'security' purposes. But if such discharge or acquittal proceeds on the footing that the ch.arge is baseless or false, preventive detention on the same condemned facts may be vulnerable oo. the ground that the power of detention has been exercised in a ma/a fid~ or colourable manner.\n\n(b) The executive authority may act on ubjective satisfaction and fa immunised from judicial dissection of the sufficiency of the material. But the executive conclusion regarding futuristic prejndicial activities of the detenu and its nexus with his past conduct though acceptable is not invulnerable.\n\n(c) The satisfaction, though aUenuated by 'subjectivity' must be real and rational, must flow from an advertence to relevant factors, and not be a mockery or mechanical chant of statutorily sanctified phrases. The subjective satisfaction must be actual satisfaction.\n\n(d) One test to check upon the colourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulated 'grounds' are too groundless to induce credence in any reasonable man or too frivolous to be brushed aside as fictitious by a responsible instrumentality.\n\n( e) If witnesses are frightened off by a desperate criminal, the court may discharge for deficient evidence but on being convinced (on police or other materials coming withiQ his ken) that witnesses had been scared of test'fying, the District Magistrate may still invoke his preventive power to protect society.\n\n(f) But if on a rational or fair consideration of the police version or probative circumstances he should have rejected it the routinisation of the satisfaction, couched in correct diction. cannot carry conviction about its reality and on. a\n\ncharge of mala fides or misuse of power being made, the court can examine the circumstances. [297 D-298 CJ\n\n(2) Merely to allege that witnesses were panicked away from testifying to truth cannot be swallowed gullibly when the witnesses are members of the Railway Protection Force and the offences against public property were of grave character. [299 B-C]\n\n( 3) In a case Like the present, where the circumstanCC6 of the nonprosecu tion strongly militate against the reality of the petitioner's involveme11t in the occurrence, the subjective satisfaction of the District Maistrate must be nPoleD1 to by him. While the detainer's on oath is not always insISted on as the price for sustaining thi: order, subjective atifaclion, being a mental fact or sta1e is best established by 1he author's affidavit and not that of a stranger in the s1cretariat familiar with the papers. But in the present case, the District Magistrate's affidavit is not available and the reason given for his not filing his affidavit is not convincing. If the Di~; trict Magistrate had sworn an affidavit that the identity of the petitioner as participant in the two incidents was not lnown to the Railway Protection Force and that other villagers made them out as the gang was decamping with the booty, th1: detention might have been upheld. But there is no such averment and the bare ipse dixit of the Deputy Secretary in the Homci Department that witnesses were afraid to depose is too implausible and tenuous to be acceptable rn:n for subjective satisfaction. [298 B-F; 299 A-B, C..EJ\n\n[Where a grievous crime against the community has been committed the culprit must be subjected to condign punishment so that the penal law may strike a stern blow where it should. Detention is a softer treatment. Further, if the man is innocent, the proces5 of the law should give him a fair chance and that should not be scuttle,<! by indiscriminate reS().rt to easy but unreal orders of detention unbound by precise tim1:.]. [300 C-E)\n\nSri/al Shaw v. The State of West Bengal Writ Petiiion No. 453 of 1974. dtci .. deli on 4-12-74 and Jaganath's case [1966) '.l S.C.R. 134 and 138, followed.\n\nRameshwar Shaw [1964) 4 S.C.R. 921 926. Hodrchand'! case A.l.R. i974 S.C. 2120; Go/am Hussain v. Commi!siOni'r of Police (1974) 4 S.C.C. '30, '34 and Dula/ Roy v. The District MagiJtrate, Burdwan [1975) 3 S.C.R. 186 referred to.\n\nORIG<NAL JURISDICTION: Writ Petition No. 429 of 1974. Uuder E Art. 32 of the Constitution of India.\n\nShiv Pujan Singh, for the petitioner.\n\nG. S. Chatterjee, for the respondent.\n\n1he Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-Shri S. P. Singh, appearing as amicus curia£, has urged a few points in support of his submission that the ~:titioner detenu, very poor and not fallen into criminal company, is entitled to be ret free, the order being illegal.\n\nThe obnoxious acts, with futuristic import, relating to the deten- G tion, have been set out in the grounds annexed to the order and are repeated in the affidavit of the Deputy Secretary, Home (Special) Department, Government of West Bengal, based on the records available in the Secretariat. The District Magistrate of Purulia., nearly three long years ago, passed the order of detention against the petitioner on February 2, 1972 on receipt of materhl.ls regardiilg the prejudicial activities of the detenu and on being subjectively satisfied of H the need for the detention under s. 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter called the MISA, for short).\n\nSADHU ROY v. WEST BENGAL (Krishna Iyer, /.) . 2 93\n\nThe two criminal adventures of the petitioner which persuaded the District Magistrate to prognosticate about his prejudicial activities were allegedly indulged in on September 3, 197L The grounds of detention are that on that date, in two separate dramatic sallies, the detenu and his associates went armed with hacksaws, lathis etc., and what not, committed theft of overhead copper catenary wires and certain other items from a place between Anaka and Bagalia railway stations. On tbe first occasion, which was during broad daylight, the miscreants were challenged 'by the R. S. Mem!>ers' but were scared away by the petitioner and his gang repeated the theft of traction wire etc.,' at stone throw. On the second occasion, which was at about mid-night, about the same spot. 'When resisted by the duty RPF Rakshaks with the help of villagers', ballasts were pelted at them by the violent intruders who made good their escape with the gains of robbery. Based on these two frightful episodes, the detaining authority came to the requisite conclusion about danger to the community, which is recited in the order.\n\nThe question . is whether, in the facts and circumstances of the case, the order can be impugned as colourable or callous exercise of power based on illusory or extraneous circumstances and therefore void. An examination of the surrowiding set of facts, serving as backdrop or basis, becomes necessary to appreciate the argument that the subjeative satisfaction of the authority did not stem from any reQ/ application of his mind but as a ritualistic recital in a routine manner.\n\nIt is admitted in paragraph 6 of the counter affidavit that the two incidents were investigated ; is GRPS Case No. 1 and No .2. The petitioner was arrested in connection with the said cases on September 9, 1971 and the police submitted a final report in both the cases on January 6, 1972 and February 9, 1972 respectively, 'not because there was no evidence against the petitioner but because the detenu-petitioncr being a dangerous person, witnesses were afraid to depose against him in open Court'. It may be mentioned here that the petitioner's name was not in the FIR but is alleged to have been gathered fa, the course of the investigation.\n\nHowever, .he was discharged from the two cases on February 9, 1972 but was taken into custody the same day pursuant to the detention order.\n\nThereafter the prescribed formalities were followed and there is .no quarrel about noncompliance in this statutory sequence.\n\nThe crucial submission that deserves close study turns on the colourable nature or mindless manner of the impugned order.\n\nWhat arc the facts germane to this issue '? It is seen that the petitioer's name is not in the first information statements. Had a court occasion to adjudge the guilt of an accused person charged with serious crime committed in the presence of quasi-police officers and his name is not seen in the earliest report to the police, that would have 1eceived adverse notice unless explained.\n\nLikewise, the circumstance that the final police report to the Court terminated the. criminal pr0eeedings\n\nmay, unless other reasons are given, militate against the implication of the petitioner since s. 169 Cr.P.C. refers to two situations one of which at least nullifies possible inference of incrimination i.e., that\n\nthere is no 'reasonable ground of suspicion to justify the forwarding of the accused to a magistrate'. It behoves the detaining authority to tell this Court how he reached his mental result in the face of a 'release report' by the police. For, the legal label th'lt the satisfaction of the executive authority a bout potential prejudicial activity is 'subjective' does not mean that it can be irrational to the point of unreality. Subjective satisfaction is actual satisfaction, nevertheless.\n\nThe objective standards which courts apply may not be applied, the subject being more sensitive; but a sham satisfaction is no satisfaction and will fail in court when challenged under Art. 32 of the Constitution. If material factors are slurred over, the formula of 'subjective satisfaction' cannot salvage the deprivatory order. Statutory immunology hardly saves such invalidity. After all, the jurisprudence of detention without trial is not the vanishing point of judicial review.\n\nThe area and depth ot lhc probe, of course, is conditioned by the particular law, its purpose and language.\n\nBut 01.!r freedoms are not wholly free unless the judiciary have a minimal look at their executive deprivation, even though under exceptional situations.\n\nWe may here refer to what a bench of five Judges of this Court observed in the vintage: ruling Ramesh war Shaw( 1) :\n\n\"It is however neessary to emphasise in this connection that though the satisfaction of the detaining authority contemplated by s. 3 (1 )(a) is the subjective satsfaction of the said authority, cases may arise where the d.etenu may challenge the validity of his detention on the grolmd of malafides and in support of the said plea urge that along with other which show, malafides, tli.e Court my als~ consider his grievance that cie grounds served on him cannot possibly or rationally support the conclusion drawn against him by the detaining authority. It is only in this incidental manner and in support o~ the plea of malafides that this question can become justiciable; otherwise the reaonableness or propriety of the said satisfaction contemplated by s. 3(1) (a) cannot be questioned before the Courts.\"\n\nBack to the: facts.\n\nOf course, the mere circumstance that the na1i11e of the petitioner was gathered in the course of the invsetigal!ion is neither here nor there and cannot help him in the tall contention that for that reason the order of detention is a make-believe. The conspectus of circumstances placed before the authority and his rational response, having regard to the duty to immobilise dangerous delinqueuts from molesting the community-these arc pertinent factors to decode the responsible r.eality of the satisfaction, although not 1•he\n\nplnary rightness of the detention order.\n\nThere are a fe~ vital facts which loom large in this context. One\n\n1s that th:~ court discharged the accused, the reason alleged in the counter being that -- ---·--·-··---\n\n[1964J 4 S.C.R. 921, 9'26.\n\nSADHU ROY v. WEST BENGAL (Krishna Iyer, J.) 295'\n\n\"The police submitted final report in those cases on 6-1-72_ and 9-2-72 respectively not because there was no facts which show malafides, the Court may also. consider his evidence against the petitioner but because the detenu petitioner being a dangerous person witnesses were afraid to depose against him in open court.\" What is the impact of a discharge of the accused by the criminal court based on police reports on the validity of the detention order against the same person based on the same c iarge in the context of a contention of a non-application of the authority's mind ? . The two jurisdictions are different, the two jurisprudential prindples diverge, the objects of enquiry and nature of mental search and satisfaction in the . two processes vary.\n\nThe argument that detention without trial, for C long spells as in this instance, is undemocratic has its limitations in modem times when criminal individuals hold the community to ransom, although vigilant check of executive abuse becomes a paramount judicial necessity.\n\nWe, as judges and citizens, must remember that, in law as in life, the dogmas of the quiet past are not adequate to the demands of the stormy present and the philosophy and strategy of\n\nD preventive detention has come to stay. We may merely observe that we are not legaliy impressed with counsel's persistent point that solely or mainly because the petitioner has been discharged in the two criminal cases he is entitled to be enlarged from preventive captivity.\n\nEven so, it does not follow that the extreme view propounded by the counsel for the State that the termination of the proceeding.s in a criminal case on identical facts is of no consequence is sound.\n\nIn this E . connection, we may draw attention to a few decisions of this Court cited at the bar. Chandrachud J., speaking for thei Court, recently observed in; Sri/al Shaw v. The State of West Bengal('), dealing with a situation somewhat like the one in this case, thus:\n\n\"This strikes us as a typical case in which for no appa- 1 rent reason a person who could easily be prosecuted under the punitive laws is being preventively detained. The Rail- F way Property (Unlawful Possessio11) Act, 29 of 1966, confers extensive P<>Wers to bring to, book persons who are found in unlawful possession of railway property. The first offence is punishable with :l sentence of five years and in the absence of special and adequate reasons to be mentioned in the judgment the imprisonment shall not be less than one year. When a person is arrested for an offence punishable G under that Act, officers of the Railway Protection Force have the power to investigate into the alleged offence and the statements recorded by them during the course of investigation do not attract the provisions of section 162, Criminal Procedure Code. (See Criminal Appeal No. 156 of 1972 decided on 23-8-1974). If the facts stated in the ground are true, this was an easy case to take to a success- H ful termination. We find it impossible ot accept that the prosecution could not be proceeded with as the witnesses\n\n(1) Writ Petition No, 453of1974, decided on 4-12-74,\n\nwere afraid to depos~ in the public against the petition<:r.\n\nThe Sub-inspector of Police who made the Panchnama, Wt! hope, could certainly not be afraid of giving evidence against the pemioner. He had made the Panchnama of seizure openly and to the knowledge of the petitioner. Besides, if the petitioner's statement was recorded during the course of investigation under the Act of 1966, that itself could be relied upon by the prosecution in order to establish the charge that the petitioner was in unlawful possession of Railway prope1ty.\" (emphasis ours)\n\nAgain, in Noorchand:S case(~) Gupta J., delivering judgment for the 'Court, held:\n\n\"We do not think it can be said that the fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance whkh\n\nthe detaining authority cannot altogether disregard. In the case of Bhut Nath Mate v. State of West Bengal (AIR 1974 SC 806) this Court observed:\n\n\" ... detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison ctill one whom the ordinary law would take care of, merely because it' is irksome to undertake the inconvenience of proving guilt -in court is unfair abuse.\" -\n\nIf as the petitioner ha~ asserted, he was df schargecj be- . cause there was no material against him and not because\n\nwitnesses were afraid to give evidence against him, there would be apparently no rational basis for the subjective satisfaction of the detaining authority. It is for the detaining authority to say that in spite of the discharge he was satisfied, on some valid material, about the petitioner's complicity in the criminal acts which constitute the basis of the detention order. But, as stated already, the District Magistrate Maida, who passed the order in this case, has not affirmed the affidavit that has been filed on behalf of the State.\"\n\nThere was reference at the bar to the ruling reported as Galam Hussain v. Commissioner of Police(2) where the Court clarified that there was no bar to a ddention order being made after the order of di!- charge by the criminal court, but emphasized the need to scan the order to prevent executive abuse in the following words :\n\n\"Of course, we can visualise extreme cases where a Court has held a criminal case to be false and a detaining authority with that. judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a Court has found to be baseless.\"\n\n(1) A.I.R. 1974 S.C. 2120.\n\n(2) (1974 4[ s.c.c. 530.\n\nSADHU ROY v. WEST llENGAL (Krishna Iyer,!.) 297\n\nA Maybe, we may as well refer to the vintage ruling in Jagannath's care( 1) where Wanchoo J., (as he thn was} spoko for a unanimous Court:\n\n\"Furthel' the proceedings ip. the matter of detention and the order of detention should show that it had acted with aU\n\ndue care and caution and with the sense of responsibility necessary when a citiztn is deprived his liberty without trial.\n\nWe have therefore to see whether in the present case the authority concerned has acted in this manner or not. If it has not so acted and if it appears that it did not. apply its mind properly before making the order of detention the order in question would not be an order under the Rules and the person detained would he entitled to release.\"\n\nThe precedential backdrop help crystallize the jurisprudence of\n\npr<:vcn:iv~ detention, an odd but inevitable juridicai phenomenon, in a succinct manner and to the extent relevant to the case. Although the circumstances of each case will ultimately demarcate the callomi or colourable exercise of pow-r from the activist or alert application of the executive's mind in making the impugned order, some clear guidelines, though overlapping, help application of the law:\n\n( 1) The discharge or acqJ!ittal by a criminal court is not necessarily a bar to preventive detention on the same facts for 'security' purposes. But if such discharge or acquittal procec; ds on the footing that the charge is false or baseless, preventive detention on the same condemned facts may be vulnerable on the ground that the power under the MJSA has been exercised in a malafide ot colourable manner.\n\n(2) The executive authority may act on subjective satisfaction and is immunised from judicial dissection of the sufficiency 0f the material.\n\n(3) The satisfaction, though attenuated by 'subjectivity' must be real and rational, not random divination, must flow from an advertence to relevant factors, not be a mock recital or mechanical chant of statutorily sanctified phrases.\n\n( 4) The executive conclusion regarding futuristic prejudicial activities of the detem; and its nexus with his pas_t conduct is acceptable but not invulnerable.\n\nThe court can lift the verbal veil to discover the true face.\n\n(5) One test to check upon the colourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulate 'grounds' are too groundless to induce credence in any reasonable man or to frivolous to be brushed aside as fictitious by a\n\n-(il--!1966]-3-s.c.R:~134. 138.\n\nresponsible instrumentality.\n\nThe court must sf:e through mere sleights of mind played by the detaining authority.\n\n(6) More concretaly, if witnesses are frighteHed off by a desperatie criminal, the court may discharge for delicient evi:dence but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to proteit society.\n\n(7) But i:f 011 a rational or fair consideration of the poli<c\n\nvcrinn or probative circumstances he would or should necessarily have rejected it, the routinisatic1n of the sati:; factipn, couched in correct diction, cannot carry conviction about its reality or fidelity, as\n\nagniust factitious terminological conformity.\n\nAnd no a charge of malafides or misuse of lower being made, the court can go behind the faca e and reac:h at the factum.\n\nSo viewed, how does the petitioner's case stand?\n\nThe petitioner's identity and involvement must, in some manner, b:: brought home, sufficient for the subjective satisfaction of a icsponsible officer not merely for his hunch or intuition. Let us assume in favour of the officer that such material was present before him when he passed the order of detention. This should be revealed to the court hearing the habea~ corpus motion, in a pre.per return in the shape of an affidavit While we agree that the detainer's own oath is not always insisted on as the price for sustaining the order, subjective satisfaction, being a mental fact or state is best established by the author's affidavit, not a .; tranger in the Secretariat familiar with papers, but the mind of the man who realised the imperativeness of the detention. This is not a formality when the ubject-matter is personal liberty and the more 'subjective' the executive's operarion th1~ more sensitive is procedural insistence.\n\nHere the Dist:iict Magistrate's affidavit is 1mavailable.\n\nAnother obstacle in the way of the State, which has to be surmounted, consists in the circumstances that both the criminal occurrences took place in the presence of public servants, members of the para-police forces attached to the railway administration. Indeed, the case is that some o:f these officials were terrroized and OV(:r-awed before the stolen articles were removed. Naturally, one would expect\n\na serious crime like railway property being removed by show of violence bei, ng. the suject-matter of the prosecution. In the present case, the Distnct MagJstrate does not swear an affidavit himsdf and what i& seated is that he is now posted in Sik\\:im :md is not 'presently available for affirming .the affidavit'. In a case where a personal explanation i~ necessary, S!kkim is .not too distant and so we have to see whether the District Magistrate has, in the i!lstant case, to show why,\n\nSADHU ROY \\I, WEST BENGAL (Krishnw Iyer,!.) 299\n\nwhen the cases were discharged by the trying magistrate, he thought\n\nthere was enough material for preventive detention. True, the Home Department official, informed by the records, has sworn that the police report for non-prosecution was 'not because there was no offence against the petitioner but because the detenu petitioner being a dangerous person witnesses were afraid to depose .against him in open cuort'. Maybe this is true, but the subjective satisfaction of the District Magistrate must be spoken to by him, particularly in a situa- . tion where the circumstances of the non-prosecution strongly militate against the reality of the petitioner's involvement in the occurrence.\n\nAfter aJJ, merely to allege that witnesses were panicked away from testifying to truth cannot be swallowed gullibly when the witnesses themselves arc members ot a railway protection force and the offences against public f:ropcrty are of a grave character. The observations of Chandrachud . in Sri/al Shaw, quoted earlier, are in point. .\n\n.In the case of non-officials, maybe they are afraid to give evidence against dangerous characters fo~ fear of their life but such an excuse or alibi is ordinarily unavailable where the witnesses are para-police public se.rvants. If the District Magistrate had sworn an affidavit that the identity of the petitioner, as participant in the crime, was not known . to the railway protection force and that other villagers made thl.!m out as th.e gang was decamping with the booty, something may be said for th.I.! plea. There is no such averment in the counter-affidavit ar.d thei bare ipse dixit of the Deputy Secretary in the Home Department that witnesses were afraid to depose is too implausible and tenuous to be acceptable even for subjective satisfaction. After all, freedom is not bubble to be blown away by executive whif or whim. For, as pointed out by Gajendragadkar J. (as he then was) in Rameshwar Shaw (supra) at p. 930:\n\n\"At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the, authority is dealing with a person already in detention.\"\n\nHad the statement been of the detaining authority, bad the deponent furnished some fact which would or c::>uld make any reasonable ma.'1 believe that the witnesses were likely to shy away from the court for fear of the petitioner, had the affidavit thrown some light on the dark hint behind the non-prosecution in court due to non-disclosure of evidence or to indicate that the final report of investigation was not on account of the absence of any reasonble suspicion but because of the deficiency of evidence (s. 169 Cr.P.C. contemplates both types of situations and the copy of the report was easy to produce), we might have upheld the detention. In Du/al Roy v. The District Maistrate Burdwan(I) this question has been dealt with in some detail. The flaw in the order flows from non-explanation of how the District Magistrate\n\nhru; made his infe.rence in the circumstances indicated.\n\n(I) [1975] 3 S.C .R. 186.\n\nSUPREME CO!JRT REPORTS {1975] 3 s.c.R.\n\nWithout more, we are inclined to the view that the Qbservations of A Wao.choo J. (as he than was) in Jagannath (supra), at p. 138, appli1::s:\n\n\"This casualness also shows that lite mind of the authority concerned was really not applied to the question of detention of the peti.tioner in the present case. In this view of the matter we are of opinion tha.t the petitioner is entitled to release as the order by which he was detained is no order B under the Rules for it was passed without the application of the mind of the authority concerned.\"\n\nIn the present 1:ase, on account_of the special reasons set out abC1ve, we are far from satisfied that the detention order is not a cloak to avoid the irksome procedure of a trial in Court.\n\nThere are two social implications of dropping prosecutions and resorting to substitutive detentions which .deserve to be remembered.\n\nWhere a grievous crimt~ against the community has been committed, the culprit must be subjected to condign punishment so that the penal law may strike a stern blow where it should. Detention is a saf.ter treatment than stringent sentenee and there is no reason why a dangercriminal should get away with it by enjoying an unfree but unpaid holiday.\n\nSecondly, if the man is innocent, the process of :he law should give him. a fa:lr cham;:e and that should not be scuttled by indiscriminate resort to easy but unreal orders of detention unbound by precise tim~. That is a negation of the correctional humanism of our system and bre, eds bitterness, alienation and hostility within the cage.\n\nWe accordingly allow me writ petition, make the rule absolute and direct tLat the petitioner set free.\n\nV.P.S.\n\nPetition aliowed.", "total_entities": 56, "entities": [{"text": "ROY\n\nTHE STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 6, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "January 22, 1975", "label": "DATE", "start_char": 36, "end_char": 52, "source": "ner", "metadata": {"in_sentence": "SADHU ROY\n\nTHE STATE OF WEST BENGAL January 22, 1975\n\n[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 55, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 78, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "S. 3", "label": "PROVISION", "start_char": 153, "end_char": 157, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 306, "end_char": 310, "source": "regex", "metadata": {"statute": null}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 318, "end_char": 360, "source": "regex", "metadata": {}}, {"text": "s1", "label": "PROVISION", "start_char": 3948, "end_char": 3950, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964) 4 S.C.R. 921", "label": "CASE_CITATION", "start_char": 5284, "end_char": 5303, "source": "regex", "metadata": {}}, {"text": "[1975) 3 S.C.R. 186", "label": "CASE_CITATION", "start_char": 5465, "end_char": 5484, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 5561, "end_char": 5568, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 5576, "end_char": 5597, "source": "regex", "metadata": {}}, {"text": "Shiv Pujan Singh", "label": "LAWYER", "start_char": 5600, "end_char": 5616, "source": "ner", "metadata": {"in_sentence": "Shiv Pujan Singh, for the petitioner."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 5639, "end_char": 5655, "source": "ner", "metadata": {"in_sentence": "G. S. Chatterjee, for the respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 5722, "end_char": 5734, "source": "ner", "metadata": {"in_sentence": "1he Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-Shri S. P. Singh, appearing as amicus curia£, has urged a few points in support of his submission that the ~:titioner detenu, very poor and not fallen into criminal company, is entitled to be ret free, the order being illegal.", "canonical_name": "KRISHNA IYER"}}, {"text": "S. P. Singh", "label": "LAWYER", "start_char": 5744, "end_char": 5755, "source": "ner", "metadata": {"in_sentence": "1he Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-Shri S. P. Singh, appearing as amicus curia£, has urged a few points in support of his submission that the ~:titioner detenu, very poor and not fallen into criminal company, is entitled to be ret free, the order being illegal."}}, {"text": "West Bengal", "label": "GPE", "start_char": 6196, "end_char": 6207, "source": "ner", "metadata": {"in_sentence": "The obnoxious acts, with futuristic import, relating to the deten- G tion, have been set out in the grounds annexed to the order and are repeated in the affidavit of the Deputy Secretary, Home (Special) Department, Government of West Bengal, based on the records available in the Secretariat."}}, {"text": "District Magistrate of Purulia", "label": "COURT", "start_char": 6264, "end_char": 6294, "source": "ner", "metadata": {"in_sentence": "The District Magistrate of Purulia.,"}}, {"text": "February 2, 1972", "label": "DATE", "start_char": 6382, "end_char": 6398, "source": "ner", "metadata": {"in_sentence": "nearly three long years ago, passed the order of detention against the petitioner on February 2, 1972 on receipt of materhl.ls regardiilg the prejudicial activities of the detenu and on being subjectively satisfied of H the need for the detention under s. 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter called the MISA, for short)."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 6550, "end_char": 6554, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 6562, "end_char": 6604, "source": "regex", "metadata": {}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 6693, "end_char": 6705, "source": "ner", "metadata": {"in_sentence": "SADHU ROY v. WEST BENGAL (Krishna Iyer, /.) .", "canonical_name": "KRISHNA IYER"}}, {"text": "September 3, 197L", "label": "DATE", "start_char": 6885, "end_char": 6902, "source": "ner", "metadata": {"in_sentence": "2 93\n\nThe two criminal adventures of the petitioner which persuaded the District Magistrate to prognosticate about his prejudicial activities were allegedly indulged in on September 3, 197L The grounds of detention are that on that date, in two separate dramatic sallies, the detenu and his associates went armed with hacksaws, lathis etc.,"}}, {"text": "Anaka", "label": "GPE", "start_char": 7163, "end_char": 7168, "source": "ner", "metadata": {"in_sentence": "and what not, committed theft of overhead copper catenary wires and certain other items from a place between Anaka and Bagalia railway stations."}}, {"text": "Bagalia", "label": "GPE", "start_char": 7173, "end_char": 7180, "source": "ner", "metadata": {"in_sentence": "and what not, committed theft of overhead copper catenary wires and certain other items from a place between Anaka and Bagalia railway stations."}}, {"text": "September 9, 1971", "label": "DATE", "start_char": 8506, "end_char": 8523, "source": "ner", "metadata": {"in_sentence": "The petitioner was arrested in connection with the said cases on September 9, 1971 and the police submitted a final report in both the cases on January 6, 1972 and February 9, 1972 respectively, 'not because there was no evidence against the petitioner but because the detenu-petitioncr being a dangerous person, witnesses were afraid to depose against him in open Court'."}}, {"text": "January 6, 1972", "label": "DATE", "start_char": 8585, "end_char": 8600, "source": "ner", "metadata": {"in_sentence": "The petitioner was arrested in connection with the said cases on September 9, 1971 and the police submitted a final report in both the cases on January 6, 1972 and February 9, 1972 respectively, 'not because there was no evidence against the petitioner but because the detenu-petitioncr being a dangerous person, witnesses were afraid to depose against him in open Court'."}}, {"text": "February 9, 1972", "label": "DATE", "start_char": 8605, "end_char": 8621, "source": "ner", "metadata": {"in_sentence": "The petitioner was arrested in connection with the said cases on September 9, 1971 and the police submitted a final report in both the cases on January 6, 1972 and February 9, 1972 respectively, 'not because there was no evidence against the petitioner but because the detenu-petitioncr being a dangerous person, witnesses were afraid to depose against him in open Court'."}}, {"text": "s. 169", "label": "PROVISION", "start_char": 9939, "end_char": 9945, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 9946, "end_char": 9952, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 10738, "end_char": 10745, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Ramesh war Shaw", "label": "JUDGE", "start_char": 11398, "end_char": 11413, "source": "ner", "metadata": {"in_sentence": "We may here refer to what a bench of five Judges of this Court observed in the vintage: ruling Ramesh war Shaw( 1) :\n\n\"It is however neessary to emphasise in this connection that though the satisfaction of the detaining authority contemplated by s. 3 (1 )(a) is the subjective satsfaction of the said authority, cases may arise where the d.etenu may challenge the validity of his detention on the grolmd of malafides and in support of the said plea urge that along with other which show, malafides, tli.e Court my als~ consider his grievance that cie grounds served on him cannot possibly or rationally support the conclusion drawn against him by the detaining authority.", "canonical_name": "Ramesh war Shaw"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11549, "end_char": 11553, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 12177, "end_char": 12184, "source": "regex", "metadata": {"statute": null}}, {"text": "6-1-72", "label": "DATE", "start_char": 13128, "end_char": 13134, "source": "ner", "metadata": {"in_sentence": "SADHU ROY v. WEST BENGAL (Krishna Iyer, J.) 295'\n\n\"The police submitted final report in those cases on 6-1-72_ and 9-2-72 respectively not because there was no facts which show malafides, the Court may also."}}, {"text": "9-2-72", "label": "DATE", "start_char": 13140, "end_char": 13146, "source": "ner", "metadata": {"in_sentence": "SADHU ROY v. WEST BENGAL (Krishna Iyer, J.) 295'\n\n\"The police submitted final report in those cases on 6-1-72_ and 9-2-72 respectively not because there was no facts which show malafides, the Court may also."}}, {"text": "Chandrachud", "label": "JUDGE", "start_char": 14874, "end_char": 14885, "source": "ner", "metadata": {"in_sentence": "Chandrachud J., speaking for thei Court, recently observed in; Sri/al Shaw v. The State of West Bengal('), dealing with a situation somewhat like the one in this case, thus:\n\n\"This strikes us as a typical case in which for no appa- 1 rent reason a person who could easily be prosecuted under the punitive laws is being preventively detained.", "canonical_name": "Chandrachud"}}, {"text": "section 162", "label": "PROVISION", "start_char": 15857, "end_char": 15868, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 15870, "end_char": 15893, "source": "regex", "metadata": {}}, {"text": "23-8-1974", "label": "DATE", "start_char": 15943, "end_char": 15952, "source": "ner", "metadata": {"in_sentence": "156 of 1972 decided on 23-8-1974)."}}, {"text": "4-12-74", "label": "DATE", "start_char": 16205, "end_char": 16212, "source": "ner", "metadata": {"in_sentence": "We find it impossible ot accept that the prosecution could not be proceeded with as the witnesses\n\n(1) Writ Petition No, 453of1974, decided on 4-12-74,\n\nwere afraid to depos~ in the public against the petition<:r."}}, {"text": "Noorchand", "label": "OTHER_PERSON", "start_char": 16785, "end_char": 16794, "source": "ner", "metadata": {"in_sentence": "emphasis ours)\n\nAgain, in Noorchand:S case(~) Gupta J., delivering judgment for the 'Court, held:\n\n\"We do not think it can be said that the fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance whkh\n\nthe detaining authority cannot altogether disregard."}}, {"text": "Gupta", "label": "JUDGE", "start_char": 16805, "end_char": 16810, "source": "ner", "metadata": {"in_sentence": "emphasis ours)\n\nAgain, in Noorchand:S case(~) Gupta J., delivering judgment for the 'Court, held:\n\n\"We do not think it can be said that the fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance whkh\n\nthe detaining authority cannot altogether disregard."}}, {"text": "AIR 1974 SC 806", "label": "CASE_CITATION", "start_char": 17145, "end_char": 17160, "source": "regex", "metadata": {}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 17291, "end_char": 17301, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Jagannath", "label": "OTHER_PERSON", "start_char": 18955, "end_char": 18964, "source": "ner", "metadata": {"in_sentence": "297\n\nA Maybe, we may as well refer to the vintage ruling in Jagannath's care( 1) where Wanchoo J., (as he thn was} spoko for a unanimous Court:\n\n\"Furthel' the proceedings ip."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 18982, "end_char": 18989, "source": "ner", "metadata": {"in_sentence": "297\n\nA Maybe, we may as well refer to the vintage ruling in Jagannath's care( 1) where Wanchoo J., (as he thn was} spoko for a unanimous Court:\n\n\"Furthel' the proceedings ip."}}, {"text": "Krishnw Iyer", "label": "JUDGE", "start_char": 24273, "end_char": 24285, "source": "ner", "metadata": {"in_sentence": "In a case where a personal explanation i~ necessary, S!kkim is .not too distant and so we have to see whether the District Magistrate has, in the i!lstant case, to show why,\n\nSADHU ROY \\I, WEST BENGAL (Krishnw Iyer,!.)", "canonical_name": "KRISHNA IYER"}}, {"text": "Chandrachud", "label": "JUDGE", "start_char": 25261, "end_char": 25272, "source": "ner", "metadata": {"in_sentence": "The observations of Chandrachud .", "canonical_name": "Chandrachud"}}, {"text": "al Shaw", "label": "OTHER_PERSON", "start_char": 25282, "end_char": 25289, "source": "ner", "metadata": {"in_sentence": "in Sri/al Shaw, quoted earlier, are in point. ."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 26184, "end_char": 26198, "source": "ner", "metadata": {"in_sentence": "For, as pointed out by Gajendragadkar J. (as he then was) in Rameshwar Shaw (supra) at p. 930:\n\n\"At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the, authority is dealing with a person already in detention.\""}}, {"text": "Rameshwar Shaw", "label": "JUDGE", "start_char": 26222, "end_char": 26236, "source": "ner", "metadata": {"in_sentence": "For, as pointed out by Gajendragadkar J. (as he then was) in Rameshwar Shaw (supra) at p. 930:\n\n\"At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the, authority is dealing with a person already in detention.\"", "canonical_name": "Ramesh war Shaw"}}, {"text": "s. 169", "label": "PROVISION", "start_char": 27057, "end_char": 27063, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 27064, "end_char": 27070, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "SUPREME CO!JRT REPORTS {1975] 3 s.c.R.", "label": "PETITIONER", "start_char": 27461, "end_char": 27499, "source": "ner", "metadata": {"in_sentence": "SUPREME CO!JRT REPORTS {1975] 3 s.c."}}, {"text": "A Wao.choo J.", "label": "JUDGE", "start_char": 27568, "end_char": 27581, "source": "ner", "metadata": {"in_sentence": "R.\n\nWithout more, we are inclined to the view that the Qbservations of A Wao.choo J. (as he than was) in Jagannath (supra), at p. 138, appli1::s:\n\n\"This casualness also shows that lite mind of the authority concerned was really not applied to the question of detention of the peti.tioner in the present case."}}]}
{"document_id": "1975_1_443_452_EN", "year": 1975, "text": "CENTRAL INLAND WATER TRANSPORT\n\nA .\n\nCORPORATION LTD.\n\nTHEIR WORKMEN\n\nMay 2, 1975\n\n[P. N. BHAGWATI AND P. K. GOSWAMI, JJ.J\n\nPay111e11t of Bonus Act, 1965--Sect'ion 16-newly set up establishnientlnduJJrial Disputes Act-Section 25FF and 25FFF.\n\nThe River Steam Nagivation Co. Ltd. carried passengers and cargo in lnland Waters. It also owned a dock called Rajabagan Dockyard, where C it carried out fepairs to its own vessels.\n\nMajority of the shares of the Com parry were purchased by the Government of lnclia and considerable financial\n\nistance was also given by the Government. n the year 1966,. th~ financial position of the company became so precanous. that a_n apl?hcation or winding up of the company was made by one of its creditors 1n the Ji1gh , Court of Calcutta.\n\nThe Government of India put forward a scheme of arrangement and compromise, and made an application to the High Court in the \\\\-inding up petition for sanction of the scheme. The appellant Cor~ D :poration was incorporated and all the properties and assets of the Company\n\n-st.ooa' transferred to and vested in the Corporation.\n\nAs far as the liabilities .are concerned, only some of them were transferred to the Corpor.ation and\n\nthe rest had to be discharged by the company.\n\nIt was also provided in the scheme that the Corporation should take as many of the existing employees .as possible.\n\nThe scheme also provided that those employees who could not be taken over by the Corporation v.'ould be pai<i' all legitimate and legal compensation by the Company.\n\nThe Company was to stand closed. 8000 E .employees were working in the Company, out of when 5173 employees were given fresh appointments by the Corporation on new terms and conditions.\n\nThe workmen working in Rajabagan Dockyard demanded payment of bonus for the years 1967-68 and 1968-69 under the Payment of Bonus Act, 1965. 'rhe' appellant raised a preliminary objection that the establishment of the Curporation in which the Viorkmen \\Vere en1ployed \\\\'aS a newly set up F establishment since 5-6-1967 anCL' the workmen were by reason of section 16 'Of the Payment of Bonus Act, not entitled to payment of bonus for the year 1967-68 and 1968-~9, since the Corporation incurred losses during both these years.\n\nThe Industrial Tribunal held that the workmen were entitled to bonus on the ground that the appellant \\\\'as the successor in interest of the com- ]lany in respect of the business carried on in the establishment of Rajabagan Dockyard. {;\n\nOn appeal by special leave by the appe!lant, it was held :-\n\nThe question which arises for determination is whether the Rajabagan Dockyard in the hanOS of the Corporation could be said to be an establishment newly set up since 5-6-1967.\n\nThe Industrial Tribunal erred in addressing itself to a wholly different question namely whether the Corporation was the successor in interest of the company.\n\nThat was not a relevant question.\n\n(448 F-G]\n\nHELD FURT1-IER-The establishment of Rajabagan Dockyard V.'as not a new establishment in the hands of the Corooration. lt was the same estab- Jishment, the san1e manufacturing apparatus; \\Vhich was operated by the company prior to its taking over by the Corporation. The name of the establish~ ment also continued to be the same.\n\nIts address remains the same anu' the registration number of the establishment under the Factories Act also rcmaintained the same.\n\n[451-HJ\n\nHELD-The \\VOrkmen were entitled to be paid bonus for the two years, as the Rajabagan Dockyard was not a new establishmei; it. Observe~ further -The workmen who were taken over by the Corporation were given frcs~ avpointments after 5-6-1967 with differe!lt scles of. pay and O:ifIrent conditions of service and there was a break 1n their continuity of service.\n\nIf certainty of service was to be decided to these \\Vorkers, they should have ben paid. closure compensation under section 25FFF or at any rate compensation under section 25FF of the Industrial Dispute. [452-D-451-Etl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 179-180 of 1973.\n\nAppeal by special leave from the Award dated the 28th July, 1972 of the Fourth Industrial Tribunal, West Bengal in case No.\n\nC VIII-51 of 1972 ordered to be published in the Gazette by Notice dated the 10th August, 1972.\n\nJagdish Swamp, A.G. Meneses and K.J. John, for the appellant.\n\nP.S. Khera, for respondent no. 1-\n\nS. C. Agarwala, V. J. Francis and R. K. Garg, fpr respondent D no. 2.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J., These two appeals, by special leave, arise out of an industrial dispnte between the Central Inland Water Transport Corporation Ltd. (hereinafter referred to as the Corporation) and E its workmen in regard to the payment of bonus for the years 1967-6~\n\nand 1968-69 under the Payment of Bonus Act, 1965.\n\nThe industrial dispute was referred to the Industrial Tribunal for adjudication under s. 10 of the Industrial Disputes Act, 194 7.\n\nThe Corporation raised three preliminary objections, one of which was-and that is the only preliminary objection with which we are concerned in the F present appeals--that the establishment of the Corporation in which the workman were employed was newly set np since 5th June, 1967 and the workman were, therefore, by reason of s. 16 of the Payment of Bonus Act, 1964, not entitled to payment of bonus for the years 1967-68 and 1968-69.\n\nThe Industrial Tribunal by an award dated 2nd March, 1971 rejected these preliminary objections and held inter alia that the Corporation was not entitled to claim immunity from G payment of bonus under s. 16 and directed that the hearing of. the reference should proceed on merits.\n\nThe reference was then heard on the question of quantification of the amount of bonus and by an award dated 28th July, 1972, the Industrial Tribunal held that each workman was entitled to bonus at the rate of 4 per cent of the wage earned by him during each year or Rs. 40/- whichever is higher.\n\nThis second and final award is challenged in appeal No. 179 of 1973. while the first preliminary award is challenged in appeal No. 180 of H 1973. It is not disputed on behalf of the Corporation that if its liability to pay bonus is established and its claim to immunity is negatived, the quantum of bonus payable to the workman would be what has been awarded by the Industrial Tribunal.\n\nThe only question which, therefore, arises for consideration in these two appeals is as to the liability of the Corporation to pay bonus under the Payment\n\nof Bonus Act, 1964. The Corporation claims to be free from liabi- A lity to pay bonus by virtue of the provisions of s. 16.\n\nIs this claim well founded ? To answer this question it is necessary to set out a few facts.\n\nThe River Steam Navigation Co. Ltd. (hereinafter referred to as the Company) was a limited liability company incorporated m England in 1914. It owned a fleet of vessels which it plied in inland waters for carrying passengers and cargo from Calcutta to dif!erent places in Assam and vice versa along rivers flowing through what was then East Pakistan. It afao owried a dock caJled Rajabagan Dockyard at 42, Garden Reach, Calcutta where it carried out repairs to its own vessels.\n\nA majority of shares of the Company were purchased by the Government of India and considerable financial assistance was given by the Government of India from time to time in view of the great strategic importance of keeping the river routes to Assam open, but even so, the Company incurred losses in , carrying on its operations.\n\nThe climax came with the armed conflict between India and Pakistan towards the end of 1965 wh.en river transport service had to be closed because the river routes passed through what was then East Pakistan and in fact, forty vessels belonging to the Company were seized by the Pakistan Government.\n\nThis brought about total cessation of the principal business activity of the Company and in consequence, its financial position becan1e so precarious that on 21st June, 1966 an application for winding up of the Company was made by one of its creditors in the High Court of Calcutta. It was realised by the Government of India that it was impossible to save the Company as its total liabilities amounted to over Rs. 8 crores, the main creditors being the Government of India in the sum of about Rs. 6.19 crores, the State Bank of India in the sum of Rs. 1.50 crores and the Cbartered Bank in the sum of Rs. 1.60 crores.\n\nThe Government of India, therefore, put forward a scheme of Arrangement and Compromise under ss. 391 and 394 of the Companies Act, 1956 and made an application to the High Court in the winding up petition for sanction of snch scheme.\n\nIn anticipation of sanction, the Government of India incorporated, on 22nd February, 1967, the Corporation-a company whoJly owned by it-for effectuating the Scheme of Arrangement and Compromise (hereinafter referred to as the Scheme) .\n\nThe Scheme was sanctioned with some modifications by a Single Judge .of the High Court by an order dated 3rd May, 1967. It may be pomted out that when the Scheme was before the learned Single Judge, the Inland Steam Navigation Workers Union appeared and made its submissions with a view to safeguarding the interests of the workers and it was after hearing the Union, that the learned Single H Judge made the order sanctioning the scheme with certain modifications.\n\nThe Union was aggrieved by the order sanctionina the Scheme and it j'f~erred an appeal before a Division Bench of th~ High Court The D1v1swn Bench, however, by an order dated 14th July, 1967, confirmed the order of the learned Single Judge sanctioning the Scheme.\n\nA It is not necessary for the purpose of the present appeals to reproduce the provisions of the Scheme in extenso. Suffice it to state that the Scheme provided inter alia that all the properties and assets of the Company shall stand transferred to and vest in the Corporation, but so far as the liabilities were concerned, only some of them shall_ be transferred to and become the liabilities of the Corporation and B the rest sliall be discharged. by the Company in the manner set out in the Scheme out of funds provided by the Government of India.\n\nIt was also provided in the Scheme that the Corporation shall take as many of the existing employees as possible and as can be reasonably taken, over, but as to exactly how many can be employed was left entirely to the discretion of the Corporation.\n\nThe Scheme also C contained a provision that those employees who cannot be taken over by the Corporation shall be paid \"all legitimate and legal compensations\" by the Company and monies for the same shall be provided by the Government of India.\n\nLastly, it was stipulated that upon the approval of the Scheme, the Company shall be closed and on payment of all creditors, it shall stand dissolved without winding up.\n\nD The Scheme, as already pointed out, was sanctioned by the order dated 3rd May, 1967 and pursuant to the Scheme, the Company issued a notice on the same day stating that the entire undertaking of the Company will be closed with immediate effect.\n\nThere were at that time about 8000 employees in the various establishments of the Company and out of them, about 5173 were given fresh apoint E ments by the Corporation on new terms and conditions from and after 5th June, 1967.\n\nThe Corporation did not carry on any business activity though it took over the assets of the Company from 3rd May, 1967 and it was only on 5th June, 1967 that it opened the Rajbagan Dockyard and started operating it with workers who were for- F merly employees of the Company but given fresh employment by the Corporation as aforestated.\n\nWhen the Rajabagan Dockyard was owned by the Company, the main purpose for which it was used was maintenance and repairs of the large fleet of vessels belonging to the Company. It did very little work for outside parties.\n\nThe result was that when hostilities G broke out between India and Pakistan and it became impossible to run rivers transport service and in fact a part of the fleet was seized by Pakistan Government, the Rajabagan Dockyard was paralysed and it became an establishment without any work and in consequence a large number of workers working in the Rajabagan Dockyard had to be laid off. The operational result of the working of the Rajabagan Dockyard from and after the commencement of the hostilities showed H considerable loss, as the work was completely at stand-still.\n\nOn taking over the Rajabagan Dockyard, the Corporation, as pointed out above, started operating it again from 5th June, 1967, but the nature and volume of the activities were changed.\n\nThe Corporation embarked on ship building and ship repairs, general engineering works and deep sea ship repairs and more than 80 per cent of these activities were carried out by the Corporation for outside parties.\n\n' '\n\n--:\n\nwas found that the machinery taken .over from the Company was largely obsolete and antiquated and much of it was not usable and the Corporation could put to use only a part of the machinery worth about Rs. 13 lacs. The nature of the work having changed and its volume increased, the Corporation found it difficult to cope with the work with the existing plant 'and machinery and soon felt the need of purchasing new plant and machinery both by way of replacement and addition.\n\nIn the meantime, a Development Committee was appointed by the Government. of India to examine various questions relating to development of Rajbagan Dockyard and this Committee submitted its report in June 1968 making various recommendations which involved an outlay of about Rs. 3 crores in constructing new sheds and purchasing and installing new plant and machinery. It seems that the recommendations of the Development Committee were accepted by the Government of India and the necessary funds were made available according to a phased programme.\n\nThe Corporation accordingly started construction of six industrial sheds in the premises of Raiabagan Dockyard and also purchased and installed new plant and machinry worth about Rs. 50 lacs. The Rajabagan Dockyard, however, continued to work at a loss and during the years 1967- 68 and 1968-69, these being the years with which we are concerned in the present appeals, the losses of the Corporation from the operation of the Rajabagan Dockyard continued to mount.\n\nVide the First and Second Annual Reports of the Corporation for the years 1967-68 and 1968-69.\n\nWe are concerned in the present appeals with the workers in the Rajabagan Dockyard.\n\nThey are represented by two Unioss, namely, Central Inland Water Transport Corporation Ltd. Mazdoor\n\nSabha and Egra and Rajabagan Dockyard Workers Union.\n\nThese two unions made a demand for payment of bonus for the years 1967- 68 and 1968-69 under the Payment of Bonus Act, 1965. The Corporation rejected the demand mainly on the ground that the establishment of Rajabagan Dockyard, as operated by it, was newly set up since 5th June, 1967 and no profit was derived by the Corporation from this establishment during the years 1967-68 and 1968-69 and therefore, the workers were not entitled to payment of bonus by reason of s. 16 of the Act.\n\nThis led to the making of a reference by the Government of West Bengal under s. 10 of the Indus-trial Dispntes Act, 1947.\n\nThe Industrial Tribunal, as already pointed out above, tried the issue as to the claim of the Corporation to exemption from payment of bonus under s. 16 of the Act, as a preliminary issue.\n\nThe Corporation examined three witnesses on its behalf, namely, Krishnaswami Srinivasan, Jovdev Basak and Girdharilal Makhija, while the workers examined only the Joint Secretary of one of the two unions, namely, Ashgar Hussain.\n\nSome documentary evidence was also produced on behalf of the parties.\n\nThe Industrial Tribunal, on a consideration of the oral as well as documentary evidence, came to the conclusion that the Corporation was the snccessor-in-interest of the Company in regard to the business of Rajabagan Dockyard which was taken over by it as a going concern and the establishment of Rajabagan Dockyard could not, therefore,\n\nA be said to be newly set up so as to attract the applicability of s. 16 of the Act. The Industrial Tribunal, on this view, rejected the contention of the Corporation and by its preliminary award dated 2nd March, 1971 held that the Corporation was liable to pay bonus to the workers.\n\nThis was followed by the final award dated 28th July, 1972 quantifying the amount of bonus.\n\nThe Corporation challenges B the correctness of tne view taken by the Industrial Tribunal and contends that, oon the facts and circumstances of the case, as appearing from the evidence, the establishment of Rajabagan Dockyard, as operated by it, is newly set up and it is accordingly not liable to pay bonus to the workers.\n\nIt would be convenient at this stage to refer to the provisions C of s. 16 of the Act in order to appreciate the true nature and scope of the inquiry before us.\n\nSub. section (I) of Section 16 which is the only material sub-section provides :-\n\n\"16. (1) Where an establishment is newly set up whether before or after the commencement of this Act, the employees of such establishment shaU be entitled to be paid bonus under this Act only-\n\n( a) from the accounting year in which the employer derives profit from such establishments; or\n\n(b) from the sixth accounting year following the accounting year in which the employer sells the goods produced or manufactured by him or renders services, as the case may be from such establishments, whichever is earlier.\"\n\nNow it is obvious that if the establishment of Rajabagan Dockyard could be said to be newly set up from 5th June, 1967, the workers F would not be entitled to payment of bonus for tl; ie years 1967-68 and 1968-69, because the corporation admittedly did not derive any profit from such establishment till then.\n\nThe question which, therefore, arises for determination is whether the Rajabagan Dockyard in the hands of the Corporation could be said to be, an establishment newly set up since 5th June, 1967.\n\nOn looking at the award of the Industrial Tribunal, however, we find that the Industrial Tribu- G nal addresses itself to a wholly different question, namely, whether the Corporation took-over the business of Rajabagan Dockyard as a going concern from the Company and was a successor-in-interest of the company in respect of such business.\n\nThat was not a relevant question for the purpose of determining the applicability of section 16.\n\nAn establishment may not be newly set up, it may be an existing establishment of which merely the ownership has changed.\n\nH But the new owner may not necessarily be the successor-in-interest of the old in respect of the business carried on in the establishment.\n\nThe two concepts are entirely different.\n\nOne may acquire the ownership of an establishment without taking-over the business as a going concern and becoming a successor-in-interest in respect of it.\n\nThe word 'establishment' is also found used iri section 3 and that section clearly indicates that an establishment may consist of different depart-\n\n' ,\n\nments or undertakings and it is, ther!'fore, not sy!'onymous with A 'undertaking which has been defined, though in a different context, by this Court in Gymkhana Club Unpn v. Management(') to mean \"any business or any work or any project which one engages in or attempts as an enterprise analogous to business or trade\".\n\nThe dictionary meaning of 'establishment' as given in Webster's International Dictionary includes inter-alia \"an institution or J?lace of business, B with its fixtures and organised staff; as, large establishment, a manufacturing establishment.\" 'Establishment' therefore means the whole trading, business or manufacturing apparatus with a separate identifiable existence. This apparatus which is used for the purpose of carrying on trade, business or undertaking may change hands and pass from one owner to another.\n\nThe workers operating this appa- C ratus and working in it may change; new workers may take the place of old or come as additional workers.\n\nWhen the ownership of the establishment, which is nothing but another name for this apparatus, is transferred from one person to another the establishment remains the same: merely its ownership is changed and it cannot be said to be a new establishment in the hands of the transferee.\n\nNow, though the transferee may become the owner of the establishment, he would D not necessarily be a successor-in-interest of the transferor in respect of the business carried on in the establishment.\n\nThe question as to whether he can be held to be a successor-in-interest of the transferor would depend on consideration of several relevant facts. What should be the relevant facts to be taken into account in determining this question was explained by Gajcndragadkar, J. in the following E words : \"Did the purchaser purchase the whole of the business ? Was\n\nthe business purchased a going concern at the time of the sale transaction ? Is the b>Jsiness purchased carried on at the same place as before ? Is the business carried on without a substantial break in time ?\n\nIs . the business carried on by the purchaser the samc or similar to the business in the hands of the vendor ? If there has been a break in the continuity of the business, what is the nature of F the break and what were the reasons responsible for it ? What is the length of the break ? Has goodwill been purchased ?\n\nIs the\n\npurchse only of some parts ar.d 1he purchaser having purchased the said parts purchased some other new parts and starte.d a business of his own which is not the same 13 the old business but is similar to it ? These. and all other relevant factors have to be borne in mind G in deciding the question as to whether the purchaser can be said to be. sueesor-in-int.erest of the vendor for the purpose of industrial ad1uchcatton.\n\nIt 1s hardly necessary to emphasise in this connection that though illustrations are relevant, it would be unreasonable to exaggerate the importance of any one of these facts or to adopt the. i?flexible rule that the presence or absence of any of them is decmve of the matter one way or the other-The decision of the\n\nH _ question must ultimately depend npon the evaluation of all the relevant factors. a?d it cannot e rech.ed by treating any one of them as of ?ver-nd1_ng or conclusive s1gmficance.\" Vide Anakapalla CooperaJive Agricultural and Industrial Society Ltd. v. Workmen.(•)\n\n(t) [1968] (1) SCR 742.\n\n(2) [1963] Supp. l SCR 730.\n\nA Now in the present case the Industrial Tribunal concentrated only on the question as to whether the Corporation had become the sucessorin-interest of the company in respect of the business carried on in the establishment of Rajabagan Dockyard and answered this question in the affirmative.\n\nWe do not think that this was a correct line of enquiry pursued by the Industrial Tribunal.\n\nThe only limited question B before the Industrial Tribunal was whether the establishment of Rajabagan Dockyard in the hands of the Corporation was a new establishment or it was the some old establishment which was owned by the company prior to its taking over by the Corporation.\n\nWe shall presently turn to consider this question, but before we do so, we may point out that prima facie even in the view taken by it as regards the question whether the Corporation was the successor-inc interest of the Company, the Industrial Tribunal appears to have\n\nmissed some material aspects.\n\nThe Industrial Tribunal seems to have overlooked the following important am! relevant considerations.\n\nThe entire undertaking of the compnay including tl1e business carried on in the Rajabagan Dockyard had to be closed dowri owing to heavy loss. The Rajabagan Dockyard in fact became idle on the conm1ence- D ment of the hostilities between India and Pakistan and the workers\n\nemployed in the Rajabagan Dockyard had to be laid off. The notice of closure was put up by the company on 3rd May, 1967 pursuant to the order made by the High Court of Calcutta sanctioning the scheme.\n\nThere was, therefore, no business which was being carried on in the Rajabagan Dockyard as a going concern when the Rajabagan Dockyard E was taken over by the Corporation in terms of the scheme.\n\nSo far as the workers in the Rajabagan Dockyard were concerned. it was specifically provided in the Scheme after hearing the Union that the Corporation shall take as many of the existing employees as possible and as can be reasonably taken-over but as to exactly how many can be employed was left entirely to the discretion of the Corporation.\n\nThere was thus no obligation on the Corporation to take-over or F absorb all the workers who were previously working the Rajabagan.\n\nDockyard under the Company.\n\nThough the Corporation took-over the Rajbagan Dockyard on 3rd May, 1967 under the Scheme, the Corporation did not start operating it until 5th June, 1967.\n\nThere was thus a fairly long break from the commencement of th~ hosti\n\nlilies between India and Pakistan up to 5th June, 1967 before the Ra.!abagan Dockyard started functioning again.\n\nThen again the busi- G ness which was started by the Corporation in the Rajabagan Dockyard was to a large extent different in character from that carried on by the company.\n\nThe pnnc1pal activny which the Company cnrrie<l on in the Rajabagan Dockyard was maintenance and repairs of its own fleet of vessels bnt the Corporation commenced not only ship build.\n\ning and ship repairing work but also general engineering work such as structural fabrication work, forging, casting and machining and also H deep sea ship repairing and general engineering work comprised more than 80 per cent of the total work as against only. a negligible fraction in the time of the Company and moreover a very substantial part of the work was done for outside parties. It was also provided in the Scheme that the workers who were not taken-over by the Corporation would be paid \"all legitimate and legal compensation.\" The workers who were taken-over by the Corporation were given fresh\n\n- +·--\n\nappointments from and after 5th June, 1967 with different scales of pay and different conditions of service. and there was a break m their continuity of service.\n\nThe Industnal Tribunal observed that fresh letters of appointment were accepted by the workers under compulsion and duress arising on account of economic necessity but that is not the kind of compulsion or duress which deprives an action of its voluntary character and introduces an infirmity in it. It is indeed unfortunate that in our country there is so much poverty and there are so few job opportunities that the spectre of unemployment and economic :-vant haunts our underprivileged segments of society and corrodes their freedom and choice of action and reduces them to a position where they can be easily dominated and exploited.\n\nBut the remedy for this state of affairs is not in the hands of the Court, unless an industrial dispute is raised and the Court gets an opportunity of bringing about social justice through the machinery of indnstrial adjudication.\n\nHere, as the matter stands, there can be no doubt that the workers who were taken-over by the Corporation were given fresh employment on different scales of pay and different terms and conditions than those enjoyed by them under the Company and they suffered a break of more than a month in their continuity of service.\n\nOne observation, however, we cannot fail to make and it is that, though the entire undertaking of the Company was closed on 3rd May, 1967, it is strange that no provision was made in the Scheme for payment of closure compensation to those workers who might subsequently be taken-over by the Corporation. If continuity of serVice was to be denied to these workers, then surely they should be entitled to c16sure compensation under section 25FFF or at any rate compensation under section 25FF of the Industrial Disputes Act,\n\n1947. We hope and trust that, though no such provision is made in the Scheme, the Government of India will consider this aspect of payment of compensation under section 25FF or section 25FFF vis-a-vis those workers who were fortunate enough to be taken over by the Corporation but whose continuity of service was interrupted.\n\nThat apart, these were some of the important and relevant considerations which ought to have been taken into account by tbe Industrial Tribunal but which the Industrial' Tribunal apparently failed to do.\n\nHow far this would. vitiate the finding of the Industrial Tribunal on thi.s 9uestion !s a matter on which we do not wish to express any final cpmton a• it ts not necessary to do so for the purpose of the present\n\nappeaJs.\n\nWe le_ave. the question open for adjudication as and when occasion may anse m future.\n\nOne th_ing is however clear that the establishment in Rajabagan Dockyard m the hands of the Corporation was not a new establishment.\n\nIt w~ the same establishment-the same manufacturin bpparatus-wh1c~ was oprated by the company prior to its taking-ave~ H . Y the Corporat10n. It 1s true that the Corporation purchased and\n\nlnsall~ ne; wa11:t and achine!\"Y in substitution as also in addition Rn ba o a de srx new mdustnal sheds within the premises of the a1a gan Dckyard but that does not mean that it became a newly set u~ estahltshment.\n\nTe establishment went by the same name of Raiabagan Dockyard; its address remained the same and some of\n\nthe old plant and machinery also continued to be used by the Corporation. The Registration number of the establishment under the Factories Act also remained the same.\n\nIt is however not necessary to discuss this aspect of the case any further, as it was almost con-, ceded by Mr. Jagdish Swaroop, learned counsel appearing on bhalf\n\nof the appellants, that Rajabagan Dockyard could not be said to be an establishment newly set up by the Corporation within the meaning of section 16.\n\nHis real grievance was against the finding of the Industrial Tribunal that the Corporation was the successor-in-interest of the company in respect of the business carried on in the Rajabagan Dockyard.\n\nThat finding however cannot stand because as already pointed out by us, it was wholly unnecessary for the decision of the present question and moreover it failed to take into account diverse important and relevant considerations.\n\nSo far as concerns the question which is directly before us for consideration, we take the view that the Rajabagan Dockyard was not an establishment newly set up by the Corporation from 5th June, 1967 as claimed by but was the same establishment as was owned by the Company prior to 3rd May, 1967.\n\nSection 16, sub-s. (1) was, therefore, not attracted and the Corporation was not entitled to claim immunity from payment of bonus under that provision.\n\nWe, therefore, uphold the claim of the workers for payment of bonus for the years 1967-68 and 1968-69 as awarded by the Industrial Tribunal and dismiss the appeals with costs.\n\nE P.H.P.\n\nAppeals dismissed.", "total_entities": 43, "entities": [{"text": "CENTRAL INLAND WATER TRANSPORT\n\nA .\n\nCORPORATION LTD", "label": "PETITIONER", "start_char": 0, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "CENTRAL INLAND WATER TRANSPORT CORPORATION LTD", "offset_not_found": false}}, {"text": "THEIR WORKMEN", "label": "RESPONDENT", "start_char": 55, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "THEIR WORKMEN", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 84, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.N. 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{"document_id": "1975_1_44_51_EN", "year": 1975, "text": "LALA BALMUKUND (DEAD) THROUGH L.RS.\n\nLAJW ANTI AND ORS.\n\nApril 1, 1975\n\n[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.J\n\nInterpretation of Statutes-Statutes prescribing law of limitation-Construction of an ambiguous provision-Interpretation producing penalising efiect, whether permissible.\n\nLimitation Act, 1908, Section 12(2) \"time requisite for obtaining a copy of the decree\"-aTime requisite\", meaning of-Period <>f delay in preparing the decree, when can be excluded.\n\nOne Roshan Lai' and two others filed a suit in the Court of Munsif Havali, Lucknow against Balmukund and another for dissolution of partnership, rendition of accounts and recovery. The suit was finally heard and decided by the Munsif as per his judgmen4 dated 30-10-1956, in these terms:\n\n\"Defendant No. 1 Lala Balmukand shall pay a total sum of Rs. 15,927 /2/- to the plaintiffs in which they have equal shares. Plaintiffs shall also get their costs from defendant No. I. Let a final decree be prepared accordingly provided necessary court-fee is paid by the plaintiffs within one month.\"\n\nThe plaintiffs did not pay the court-fee within the time origiruiny fixed in the. judgment They asked for extension of time which was granted without notice to the other side.\n\nThe plaintiffs then deposited the necessary court-fee within this extended time, on 18-1-1957. About 12 days thereafter, on 30-1-1957, the final decree was drawn up and signed.\n\nThe appellant (defendant No. 1) made an application for obtaining a copy of the judgment on 14-11-1956, The copy was prepared and delivered to the appellant on 16-11-1956. On 26-11-1956 i.e. about two months before the decree was actually dra\\vn up and signed, the appellant made an application ·-for a copy of the decree. The copy was prepared and delivered to counSel for the appellant on 1-2-1957. Information about the supply of this copy was received by the appellant at Delhi on 3-2-1957.\n\nAgainst the judgment and decree of the Munsif, the defendant filed ail appeal on 12-2-1957 before the Additional Civil Judge, Lucknow. Along with the Memorandum of Appeal, he submitted an application under s. 5 of the Limitation Act, for -condonation of delay in respect of the period from 6-2-.1957.\n\nBy his judgment dated 14-2-1957, the Judge dismissed the appeal as. timebarred. The second appeal preferred by the defendant ws also dismissed by the High Court. This appeal is based on the special leave granted by this Court.\n\nOn behalf of the appellant it was contended that the Additional Civil Judge had exercised his discretion under s. 5 of the Limitation Act in a groasly unjust and unreasonable manner in not condoning the dlay. It was_ also contended thai the entire period between the date of the judgment and the sign~ ing of the decree, in the circumstances of this case,- was the. \"time requisite\" for obtaining a copy of the decree and should have l?een excluded,. as such under s. 12(2) of the Limitation Act, 1?08.\n\nAllowing the appeal, HELD : (i) Jn the courts below, the appellant did not take up th<O pl~ that the delay was due to wrong advice of the Counsel or that the appellant .\n\n--\n\nl!ALMUKUND v. LAJWANTI (Sarkaria, 1.) ~~\n\nwas labouring under any mistake or, misapprehension of law. The case then A set up .by . him was that being a patient of heart disease,· he remained confined, under medical advice, to bed. He was fit enough to travel on the 10th February, bnt for want of funds he could not reach Lucknow f.rom Delhi .on the 11th\n\nFebruary. He produced a post-dated medical certificate, but did not examine the Doctor concerned. The appellant had an adult son who used to look after the case. In these circumstances, it could not be said that the first appellate court exercised its discretionary power perversely or illegally so as. to warrant B interference by the High Court in second appeal,. [47D-E]\n\n(ii) Limitation Act deprives or restricts the right of an aggrieved person to have recourrse to legal remedy,· and where its language is ambigUous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect unless it is driven to do so by the .irrreoistible force of the language employed by the C legislature. [50AJ\n\n(iiii) Tiie expression •'time requisite\" in the phrase, \"time requisite for obtaining a copy of the decree\",· occurring in s. 12(2A) of the Act means all the time counted from the date of the pronouncement of the judgment (the same being under Order 20, Rule 7, C.P.C., the date of the decree) which would be properly required for getting a copy of the decree including the time which must ex-necessitas elapse in the circumstances of the particular case, D before a decree is drawn up and signe'cl. If any period of the delay in preparing the decree was attributable to the default or negligence of the appellan4 lhe latter shall not be entitled to the exclusion of such period under s. 12(2) of the Limitation Ac4 1908. [50G-H]\n\n(iv). Under the judgment or any rules of the court the appellant was not required to take any step towards the preparation of the decree. No period of the delay in drawing up the decree was attributable to the fault of the E appellant. The delay was mainly due to the delayed deposit of the court-fee by the plaintiffs and partly due to the laxity of the office of the court. Although the 'appellant prematurely filed an application for getting a copy of the nonexistent decree on 26-11-1956, he could legitimately defer that action till the condition precedent on which the drawing up of the decree was dependent, was performed by the plaintiffs. It would not have been extravagant for the appellant to wait till the courtfee was deposited by the plaintiffs, for, in the event of nondeposit of the court-fee, there was a rreasonable possibility of their suit F being. dismissed, or at any rate, of the decree against which the defendant felt aggrieved and eventually appealed, not being, passed. Under the circumstances-; the appel1ant was entitled to the exclusion of the entire time between the date -0f the .. pronouncement of the judgment and the date of signing of the deCree, as the ''tinie requisite for obtaining. a copy of the. decree', After such exclusionavoiding double counting-his appeal filed in the court of the Additional Civil Judge on 12-2-1957, was fully within time.\n\n[51B-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 130 of 1968.\n\nFrom the judgment and order dated the 7th September, 1967 of the High Court of Allahabad in S.A. Appeal o: 18 of 1958. .\n\nR. K. Garg, S. C. Agarwala and V. I. Frahcis, for the appellants.\n\nA. N. Goyal, for the respondents,\n\nThe Judgment of the Court was deliveml by\n\n. SARKARIA, J.--,-This appeal by spec!al leave directed against a judg- ent of te Allahabad High Court raises a question in regard to the mterpreta!1on of s. 12(2) of the Limitation. Act 1908. It arises out of these c1rcwnstances :\n\nRoshan Lal and two others filed a suit in the Court of Mtmsif Havali, Lucknow against Balmukund and another for dissolution of partnership, rendition of accounts and recovery. The suit was finally heard and decided by the Munsif as per his judgment, dated 30-10-1956, in these terms :\n\n\"Defendant No. 1 Lala Balmukund shall pay a total sum of Rs. 15,927 /2/- to the plaintiffs in which they have equal shares.\n\nPlaintiffs shall also get their costs from defendant No. 1. Let a final decree be prepared accordingly provided necessary court-fee is paid by the plaintiffs within one month.\"\n\nThe plaintiffs did not pay the court-fee within the time originally C fixed -in the judgment. They asked for extension of time which was granted without notice to the other side. The plaintiffs then deposited the necessary court-fee within thiS extended time, on 18-1-1957.\n\nAbout 12 days thereafter, on 30-1-1957, the final decree was drawn up and signed.\n\nD The appellant (Defen:dant No. 1) made an application for obtaining a eopy of the Judgment oh 14-11-1956.\n\nThe copy was prepared and delivered to the appellant on 16-11-1956.\n\nOn 26-11-1956 i.e. about two months before the decree was actually drawn up and signed, the appellant made an application for a copy of the decree.\n\nThe copy was prepared and delivered to Counsel for the appellant E on 1-2-1957. Information about the supply of this copy was received by the appellant at Delhi on 3-2-1957.\n\nAgainst the judgment and decree of the Munsif, the defendant filed an appeal on 12-2-1957 before the Additional Civil Judge, Lucknow.\n\nAlong with the Memorandum of Appeal, he submitted an application under s. 5 of the Limitation Act, for con'donation of delay in respect of the period from 6-2-1957 to 12-2-1957. By his judgment dated 14-2-1957, the Judge dismissed the appeal as time' barred.\n\n_ _ 'Aggrieved, the defendant preferred a second appeal to the High Court.\n\nG Before the learned single Judge of the High Court the appellant iirged: (1) That, the first appellate Court did not properly exercise its discretion when it held that th.ere was no sufficient cause for condoning the delay; ( 2) (a) That as the decree passed was conditional on payment of court-fee, the date when the decree was actually signed should be the date -of the decree ; (b) That as the decree was prepared late, it should be held that the \"time requisite_ for H obtaining a copy of .the decree\" was not the only time while the application for a copy of the dei:ree remained pending but also thee time prior to it. _\n\n, c The learned Judge rejected both these contentions. c Following the rule in Keshar Sugar Works Bombay v. R: C. Sharma.and Ors., (1}\n\n(I) AIR 1951 All, 122 F.B. -\n\n' •\n\nBA\\, MUKUNP v. LAJWANTI (Sar/caria, J.) 47\n\nhe held that the period between the date of the judgment (30-10-1956) A and the date (26-11-1956) of making the application for copy could not be excluded as .\"time requisite for obtaining a copy or ili.e decree\" under s.12(2) of the Limitation Act.\n\nIn the result be dismissed the appeal as barred by limitation.\n\nHence this appeal.\n\n The contentif>nS which were canvassed on behalf of the appellant B in the High Court, have been reagitated before us by Shri R. K Garg.\n\nFirstly, it is urged that the Additional Civil Judge bad exercised h)s. discretion under s. 5 of the Limitation Act in a grossly unjust and unreasonable manner in not condoning the delay. Itis submitted that apart from the sworn statement of the appellant that he was ill, C there . were patent circumstances in this case which by themselves constituted a sufficient cause for condoning the delay of six days in filing the appeal.\n\nIt is stressed that the law on the point was any' thing but clear, and the delay in applying for a copy of the decree was due to the delay in preparation of the decree, which in turn, was attributable mainly to the default of the plaintiflNespondents in not D furtiisbing the court-fee within the time specified in the judgment.\n\nIt is to be noted that in the courts below, the appellant did not take up the plea that the delay was due to wrong advice of the Counsel or that the appellant was labouring urider any mistake or misapprehension of law. The case then set up by him was that being a patient of heart disease. he remained confined, under medical E advice, to bed.\n\nHe was fit enough to travel on the 10th February, but for want of funds he could not reach Lucknow from Delhi on the 11th February.\n\nHe produced a post<dated medical certificate, buf did not , examine the Doctor concerned.\n\nThe appellant had an adult son who used to look after the case. In these circumstances, it cQµJd not be said that the first appellate court exerciSed its dis- Ji cretionary power perversely or illegally so as to warrant interference by. the High Court in second appeal.\n\nWe therefore, negative the first contention.\n\nNext' it is contended that the entire period between the date of the judgment and the signing of the decree, in the circumstances of this case; was the. \"time requisite\" for obtaining a copy of the decree G and. should have been excluded, a& such under s.12(2) of the Limitation Act 1908. According to the learned Counsel, the Allaha\n\nbad High. Court has wrongly interpreted .the provisions of s. 12(2) ; while the contrary view taken by the other High Courts is correct\n\n. As against thi.I, Mr. Goyal, the learned Counsel for the Respondent takes his stand on the reasoning and ratio of the Full Beqch decision H orthe Allahabad High Court in Ke;; har Sugar Mills case (supra).. 1'\n\n:, .. , 'f!iqnaterial pa(\"t of s.12(2) runs thus:\n\n •. '\"In computing the period o( limitation for an appeal ...... . ... .. the day on which the judgment complained of was.pronounced ' ' ' ·.' - ' ' -\n\n.. J\n\nA and the time requisite for obtaining a copy of the decree ............ or order appealed from ............ shall be excluded.\"\n\n(emphasis supplied)\n\nThere is a conflict of opm1on as to the meaning and scope of the phrase \"time requisite for obtaining a copy of the decree or order\".\n\nThi~. conflict has arisen because the phrase in question is susceptible of a restricted as well as a liberal interpretation.\n\nOn a narrow-guage view, the \"time requisite\" spoken of in this phrase is to be strictly confined to the pericid commencing with the date of making the application for copy and ending with the date of the grant of the copy, ilTespective of whether the decree or order, copy of which is sought, is or is not in existence.\n\nThis view has found favour with the Allahabad High Court. It was first propounded by Mahmood J. in Bechi v. Ahsan Ullah Kha!1( 1 ), thus:\n\n\"The words \"req.uisite\" and \"obtaining\" as they OCC-UJ~ in the context seem to me to assume that some definite step ancilliary to the \"obtaining\", that is, acquisition, is not only intended to be taken but has already been taken ......... The time requisite for \"obtaining a copy of the decree\" cannot refer to any period antecedent to the appellant's asking for a copy by the .usual mode of applying therefor, or to any period subsequent to its being ready for delivery''.\n\nE The ratib of Becki's case (supra) has been reaffirmed by Malik C.J.,\n\nspeaking for the majority in Keshar Sugar Works Bombay v. R. C.\n\nSharma (supra), with this observation:\n\n\" ...... the words \"requisite\" and \"obtaining\" mean that some definite step should be taken by the applicant himself toward the attainment of the copy and it cannot be said that the time was required for obtaining a copy if the appellant has not applied for a copy thereof. ..... the appellant is not req uiml to wait till the decree is ready before he can file his application for a copy.\"\n\n, J..\n\nThe basis of this view is that the process of 'obtaining' a copy .,. begins only when an application for it is made.\n\nThus it places G greater stress on the word 'obtaining' than on the expression 'time requisite'. It purports to ignore the delay in drawing up of the decree-- the existence of which is a condition precede\\!! to the obtainment of its copyven where such delay is .the result of circumstances beyond the control of the appellant.\n\nThe contrary view proceeds on a liberal interpretation of the H language of s. 12(2). It places due emphasis on the expression \"time requisite\" and gives it full effect, which, according to it, is not restricted to the time actually taken, but is wide enough to encompass all the time properly required. Consequently, the time properly taken for the preparation of the decree and the time which properly elapses in\n\n(1) ILR 12 All. 461 F.B.\n\nthe circumst; inees of a particular. case between the pronouncement of A the judgment and the signing of the decree, should also be excluded as the time necessary for obtaining its copy. The action on the part of the appellant in applying for a copy of the decree is not always decisive factor in considering whether any time shoukl be so excluded. In a case where various steps might have to be taken by the parties before a decree could be ready and signed, the court would have to consider R whether any of the time taken for preparation of the decree could be attributed to the fault or negligence of the appellant.. If any of the time could be so attributed, then that time could not be excluded under s. 12(12). This, in substance, is the view adopted by the High Courts of Bombay('), Calcutta('), Patna(•), Nagpur(') and Assam(•).\n\n.f The leading case wherein this view was first enunciated is Bani c Madhub Mitter v. Matangini (supra). In Pramatha Nath v. W. A.\n\nLee(6), the Privy Council referred to Bani Madhub's case in terms which could l)e indicative of an implied approval of its ratio 'decidendi.\n\nThe Judicial Committee distinguished Bani Madhub's case on the ground that the appellant therein was not at fault at all and all that Bani Madhub's case had decided was that the two periods of time, D \"one of which was prompt and effective and the other of which the appellant might not have been able to control, ought to be deducted from the length of time between the decree and the lodging of the, memorandum''. In their Lordships' opinion, the real test was whether the party was responsible for the delay in preparation of the d.ecree or order, or the delay was unavoidable, and due to circumstances beyond E the control of the appellant. The conduct of the appellant was cbnsidered to be a material factor in determining the time requisite for olr taining .a copy of the order. In computing such time requisite, the benefit of any period which elapsed due to circumstances beyond the appellant's control hd to be given to him. But any time which lapsed on account of his default should not be so excluded r In Jiji Bhoy N. Surly v. T. S. Chettyar Firm(7), the Judicial Committee held that the word 'requisite' in s. 12(2) means 'properly required' and implies that no part of the delay beyond the prescribed period was due to the appellant's default.\n\nWe do not wish to encumber this judgment with a detailed discussion of all the citations and the reasoning advanced therein in support of one or the other view. It will be sufficient to say that upon the language of s. 12 ( 2) both the constructions are possible, but the one adopted by the majority of the courts, appears to be\n\n(1) Jaya Shankar Malushankar v .. Mayabhai AIR 1952 Born. : 122 F.B.\n\n(2) Bani Madhub Mitter v. Matangi Das.5i, !LR 13 Cal. 104 : SCcretary of tt State v .. Parijat Debi, AIR 1932 Cal. 331. . ' ·· ·\n\n(3) Gabriel Christian v. Chandra MohanMissir, ILR 15 Pat 284. :· ( 4} Bhagwant v. Liquidator, Cooperative Society Sarphapur, ILR 1955 Nag;\n\n791 F. B. . . . .\n\n(5) Arun Chandra Swami v. Mohd. Mujib Chotidhry AlR.1955 Asilam 129\n\nS.B. .\n\n(6] AIR 1922 P.C. 452.\n\n(7 55 I.A. 16: AIR 1928 P.C. 103. \"'\n\nA mote consistent with justice and good sense.\n\nThe Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, aud where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it.\n\nA court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have .8 a penalising effect unless it is driven to do so by the irresistible force of the language employed by the legislature.\n\nConsidered in the light of this cardinal canon, we are not persuaded to accept the Allahabad view.\n\nAlthough there is nothing in the Limitation Act or the Code of Civil Procedure requiring that the application for a copy of the decree or order should be made C within the ordinary period of limitation, this view reads such a peremptory requirement into the statute and makes it a terminus-aquo of the time necessary for obtaining a copy of the decree even if such a decree did not or could not come into existence within the prescribed period, due to circumstances beyond the control of the appellant.\n\nIt puts undue emphasis on the starting point of . the pro- ]) cess of obtainment of a copy by synchronising it With the date of applying, whereas the emphasis should have been on the final act of obtaining the copy. It i.lllllecessarily whittles down the amplitude of the word \"for\" (immediately preceding the expression \"obtaining\") as if it was \"in\"; whereas in the context it appears to carry a Wider connotation, equivalent to \"in respect of\", indicating that the scope of the expression \"time requisite\" and \"obtaining\" (in asso- E ciation with which it occurs) is not necessarily confined to the activity of the appellant, but is relatable to the circumstances of the case, beyond the control of the appellant.\n\nThe Allahabad view overlooks the stark truth that if a party applies or a copy of a decree not yet in existence, he cannot be said to be 'obtaining' the copy during the period the original was yet to be prepared and which for some reason, 1t not of the party's making, could not be brought into existence. Tei hold that in such a case, also, he was 'obtaining' a copy of the non-existent original, would be conjuring up a new fiction over and above that envisaged by 0. 20, R. 7 Of the Code of Civil Procedure. In sJlort,\n\nthis construction constricts the scope of the phrase \"the time requisite for obtaining a copy of the decree or order\", so as to have an unduly penal effect.\n\nWe would therefore, eschew this construction and G approve the other adopted by most of the High Courts.\n\nIn our opinion, the expression \"time requisite\" in the phrase in question, means all the time counted from the date of the pronouncement of the judgment (the same bemg under Order 20, Rule 7, C.P .C., the date of the decree) which would be properly required for .getting a copy. of the decre, including the time which must ex-\n\n&. nec¢ssitas elapse in the circumstances of the particular case, before a decree is drawn up and signed. If any period of the delay m preparing the decree was attributable to th~ default or neglf gence 0( the appellant, the latter shall not be entitled to the exclus101l of wch period nnder. s. 12(2) of the Limitation Act, 1908.\n\nApplying the Jaw as enunciated hove to the fats <;>f the ~\\15e in hand, it will be seen that the drawmg up or. coming: mto eiustence\n\nof the original decree, of which the copy was sought, was conditional A upon the payment of court-fee by the plaintiffs within thirty days of the pronouncement of the judgment (30-10-1956). The plaintiffs did not comply with that direction within the time originally specified in the judgment. They deposited the court-fee only on 18-1-1957 within the extended time which was granted withont notice to the defendant-appellant.\n\nEven after that, the decree was not signed till B 30-1-1957.\n\nUnder the jndgment or any rules of the court, the appellant was not required to take any step towards the preparation of the decree'.\n\nNo period of the delay in drawing up the decree was attributable to the fault of the appellant. The delay was mainly due to the delayed deposit of the court-fee by the plaintiffs and partly due to the laxity of the office of the court.\n\nAlthough the appellant prematurely filed an application for getting a copy of the non-existent C decree on 26-11-1956, he could legitimately defer that action till the condition precedent on which the drawing up of the decree was dependent, was performed by the plaintiffs. It would not have been extravagant for the appellant to wait till the court-fee was deposited by the plaintiffs, for, in the event of non-deposit of the court-fee, there was a reasonable possibility of their suit being dismissed, or at D any rate, of the decree against which the defendant felt aggrieved and eventually appealed, not being passed.\n\nUnder the circumstances, the appellant was entitled to the exclusion of the entire time between the date of the pronouncement of the judgment and the date of signing of the decree, as the 'time requisite for obtaining a copy of the decree'. After such exclusion-avoiding double counting-his appeal filed in the court of the Additional Civil Judge on 12-2-1957, was E fully within time.\n\nBefore parting with this judgment we may mention that Mr.\n\nGoyal, learned Counsel for the respondents had also pointed out that in view of the Explanation appended to the recenacted s. 12 of the Limitation Act, 1963, the Allahabad view is the correct one and the F contrary opinion held by the other High Courts is no longer good law.\n\nIn this connection he has cited Sitaram Dada Sawant v. Ramu Dada Sawant.( 1 )\n\nWe would dispose of t)lis contention on the short ground that in the present case we are concerned with the interpretation of s. 12 as it st<;>OO in the Limitaion Act of 1908.\n\nWe are not called upon G to consider th6 construction ot the new s. 12 ot the Limitation Act, 1963.\n\nNo part of the new ~· .12 has been given retrospective effect.\n\nWe therefore, express no op1mon as to whether the law enunciated above will hold good in cases governed by the new s. 12 of the 1963 Act.\n\nFor the foregoing reasons, we set .aside the judgment of the High Court and allow this appeal with costs throughout.\n\nThe case shall H now go back. to the Additina] Civil Judge, Lucknow for disposal of the appeal m accordance with law.\n\nV.M.K.\n\nAppeal allowed.\n\n(1) A.I.R. 1968 Born. 204.", "total_entities": 46, "entities": [{"text": "LALA BALMUKUND (DEAD) THROUGH L.RS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "LALA BALMUKUND (DEAD) THROUGH L.RS", "offset_not_found": false}}, {"text": "LAJW ANTI AND ORS", "label": "RESPONDENT", "start_char": 37, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "LAJWANTI AND ORS", "offset_not_found": false}}, {"text": "Y. 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{"document_id": "1975_1_453_468_EN", "year": 1975, "text": "_I\\_\n\nKILLICK NIXON LIMITED\n\nKILLICK & ALLIED COMPANIES EMPLOYEES UNION\n\nMay 2, 1975\n\n[H. R. KHANNA, P. N. BHAGWATI AND P. K. GOSWAMI, JJ.J\n\nIndustrial Dispute-Fixation of ceiling on D-. A .-Principles.\n\nThe appellant-company wanted to introduce the following scheme of D.A . • ( for its clerical staff and drivers.\n\nBasic Pay slabs.\n\nJst Rs. JOO\n\n2nd Rs.JOO\n\nRs. 201 to Rs. 500\n\nOver Rs.500\n\nPercentage Of basic salary (C.P.l. 441-450)\n\nMaxjn1um D.A.R'> 325\n\nvariation for every 10 points of C.P.I.\n\n5% 2% 1%\n\nPlacing the ceiling of Rs. 325 on the D.A. was not acceptable to the employees and a reference \\vas made to the Indue'tirial Tribunal anp. the Tribunal removed the ceiling.\n\nIn appeal to this Court,\n\nHELD:\n\n'\\Vhile the question of the desirability of ceiling on D.A. was not in issue in any references to Tribunals or appeals therefrom, referred to by the\n\n45 3\n\n\" parties, the question of imposing a ceiling on D. A. is not an absolutely alien F phenomenon. Although it might not have been the general practice, ceiling was not rejected out of hand as irrational or un\\just by unions in the course of collective bargaining in the Bombay region. in which the head-office of the appellant is situated. In the case of the employees under 'the CeRtral Govern- \"' ment also a kind of ceiling has been in vogue. [461F.G., 462A]\n\n(I) The problem of imposing or removing a ceiling on D. A. has to be viewed from the following among other important aspects :\n\n(1) Condition of the wage scale prevalent in the company.\n\n(2) Condition of the wage level prealent in the industry and the region.\n\n(3) The wage -packet as a whole of each earner in the company with all ameni.ties and benefits and his ability and potency to cope with the economic requirements of daily existence consistent with his status in society, responsibilities, efficiency at work lI and industrial peace. ·\n\n( 4) The position of the company viewed in relation to other compa-\n\n, rable concerns in the industry and the region.\n\n(5) Peremptive necessity for full neutralisation of the cost of living at the rock-bottom of wages scale if at, or just above, the subsistance level.\n\n(6) The rate of n_eutraiisatio'n \\vhich is being given to the employees in each salary slab.\n\n(7) Avoidance of huge distortion of \\Vage differentials taking into reckoning all persons employed in the concern.\n\n(8) Degree of sacrifice necessarv even on the part of workers in general interest. -\n\n(9) The compulsive necessity of securing social and distributive justice to the workmen. _\n\n(10) Capacity of the company to bear the additional burden.\n\n(11) Interet of national economy.\n\n(12) Repercussions on other industries and society as a whole.\n\n(13) The state of the consumer price Index at the time of the\n\ndecision. ( 14) Forebodings and possibilities in the forseeable future as far as can be envisaged.\n\n( 15) Price indices have now assumed menacing figures.\n\nAny problem regarding wage or D.A. has to be considered in that • background and at the same time not losing sight of the national economy.\n\n[466E-H, 467A-C]\n\nIL The '.removal of ceiling in the instant case is not justified even though\n\n(i) the appellant company is a prosperous company with capacity to bea; the additional financial burden if the ceiling is removed, and (ii) the consumer price index has been soaring higher and higher; because : [465A-B, 4670]\n\n(a) The unprecedented rise in the consumer price index produces a steep rise in D.A.\n\n[458H]\n\n(b) The absence of ceiling on D.A. can thus result in curious anomalous situations wherein the pay packet of the clerical staff would exceed the pay packet of junior executives which would hardly be conducive to discipline, efficiency and effective exercise of control.\n\n[463-GA] F\n\n(c) Although the appellant employs a total of 1142 workmen in\n\nits va'fious factories and branches, the dispute relates to only 265 workers in the head-office.\n\nA general problem like imposition of ceiling on D.A. in a company ca001ot be treated on the statistical burden relevant only to a section of the employees, [463C-E]\n\nIII. D.A. being intimately connected with the cost of living, the matter cannot be judged by the test submitted by the workmen, namely, that there' cannot be a ceiling on D.A. unless there is a ceiling on profits.\n\n[467-F]\n\nIV. A1so, in dealing with the problem of ceiling on D.A., the Tribunal's view that there should not be a ceiling on D.A. unless the company would be\n\nrequired to close down if the ceiling is removed, is not correct. [465-H] •\n\nV. At what particular amount there should be a ceiling on D.A. is a H matter which will have to be gone into by the Tribunal. But so far as th~\n\nlowest paid employees at or just above subsistence level are concerned, they\n\nare entitled to 100 per cent or at any irate 95 per cent neutralisation of the rise in cost of living, and hence, there should be no ceiilng on D.A. payable to employees within the slab of first Rs. 100/- unless it can be shown by the\n\nmanagement that the rate of neutrailsation in their case is more than 100 per cent. The manner in which the ceiling may be imposed, that is, at a certain amount as the outside limit of the D.A. or by reference to the quantum of D.A. payable at a certain wage level, or in any other manner, would als0< /.-•\n\nhave to be decided by the Tribunal in the exercise 9f its judicial discretion.\n\nA The Tribunal will have to perform this delicate task by striking a balance the weightage to be given to any principle being variable according to the conditions-and keeping in view the dominant principle of doing social justice.\n\n[467DE, GH, 468A-C]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 734 & 735 of 1913.\n\nApal by special leave from the Award dated the 24th January, 1973 of the Industrial Tribunal, Bombay in Ref. Nos. (IT) 149 of 1966 & (IT) No. 257 of 1966.\n\nA. K. Sen, I. N. Shroff. D. G. Shroff, M. S. Gagrat & F. D.\n\nDamania, for the appellant. R. !. Mehta, for the respondent A. K. Gupta, for th~ applicant/intervener (Killick Nixon Employees' Union)\n\nD. C. Shroff, 0. P. Mathur, K. J. John, F. K. Kaka and J. B.\n\nDadachanji, for the applicant/intervener (Cynamid India Ltd.)\n\nG. B. Pai, S. V. Gupte, 0. C. Mathur, K. J. John, A. G. Meneses and J.B. Dadachanji, for the applicant/intervener (Valtas Ltd.).\n\nJanardan Sharma and Jitendra Sharma, and K. T. Sule, for the applicant/intervener (Cynamid Employees' Union)\n\nJanardan Sharma and Jitendra Sharma, for the applicant/intervcner The Judgment of the Valtas & Vol Kart Employees Union court was delivered by, GosWAMI, J.-The only question with which we are concerned in thei; e appeals by special leave is: Should there be a ceiling on dearness allowance in this case ?\n\nOn May 11, 1966, the employers gave a notice of change for placing a ceiling on dearness allowance (for brevity D.A.) already . in vogue at the figure of Rs. 325/-.\n\nSince this was not acceptable to the union, both sides agreed for a reference to .the the Industrial Tribunal. Maharashtra. By the impugned order of January 24, 1973, the Tribunal removed the ceiling and hence this appe3.l.\n\nThere was also another demand with regard to the D .A. for drivers on the same basis as that for clerical staff.\n\nThe Tribunal following this <lourt's decisions in Bengal Chemical & Pharmaceuticals Works v. Its Workmen(') and Greaves Cotton and Co. and Others\n\nv. Their Workmen (2) allowed the nnion\"s claim for the two categories to be treated on equal 'footing.\n\nThis Court held in the above decisions that employees getting the same wages should get the same D.A. irrespective of whether they are working as clerks• or as members of subordinate staff or as factory workmen.\n\nThis part of the award is, .therefore, rightly not challenged before us.\n\n(I) [1969] 2 S. C. R. 113.\n\nI (2) J1964] 5S. c. R. 362.\n\n10 SC/75-30\n\nA The reference was made in June 1966.\n\nThere was an earlier\n\naward in the reference. At the instance of the management, the High Court set it aside and remanded the above two items of dispute alone for disposal.\n\nThe Tribunal had in the earlier award rejected all other claims of the union including that of revision of wage scale.\n\nThe only point that survives, therefore, is with regard to the ceiling on D.A.\n\nWhen the reference was made in June 1966 the cost of living jndex for Bombay city was 626. At the time of the impugned award in January 1973 it rose to 906 and in December 1974 it reached 1336 mark.\n\nVarious expert committees and commissions have dealt with the C question of wages and D.A. from time to time.\n\nDearness allowance as such is not known in foreign countries with the exception of Ceylon and Pakistan.\n\nWhenever there is any significant rise in the cost of living in foreign countries there is a revision of wage rather than payment of any D.A. as such.\n\nD.A. in India is a relic of the D First World War to cope with the rise of cost of living although then in the shape of ad hoc payments not linked to any consumer price index.\n\nDuring the Second World War it was introduced in the form of a Grain Compensation Allowance to compensate the hard, hip of the employees for the rise in prices of foodgrains.\n\nSo far as the Central Govermnent employees were concerned, the Government comtituted the First Pay Commission in 194 7 to examine the wage E structure.\n\nThe Government of India also set up a Committee on Fair \\V;1ges and the report was submitted in June 1949. A Second Pay Commission was also constituted by the Government in 1959. The Government of India in August 1964 constituted a One-man Independent Body to enquire into the question of D.A. payable to the Central Government employees and the report was submitted in January 1965 by Shri S. K.\n\nF Das.\n\nIn July 1966, the Government of India appointed a Dearness Allowance Commission presided over by Shri P. B. Gajendragadkar.\n\nThe Commission examined the principles which should govern the grant of D. A. to Central Government employees in future and was also\n\nrequired to review the formula for the grant of D.A. as recommended by the Second Pay Commission and to recommend, changes. if any.\n\nIn December 1966, the Government of India set up a National G Commission on Labour presided over by Shri P. B. Gajendragadkar with exhaustive terms of reference and the Commission submitted its report on August 28, 1969. Then in sequence came the report of the Third Pay Coll)mission in 1973.\n\nThe parties have extensively quoted from the above reports during arguments.\n\nHistorically and by the industrial texts and also observations of various commissions and committees, D.A. was regarded as \"appli- H cable to those employees whose salaries are at the subsistence level or little above it.. ......... .in order to enable them to face the increasing dearness of essential commodities\". (See Gajendragadkar Commission on Dearness Allowance, May, 1967).\n\nLike all changes in life and in continuous march in progress of Bociety the concept of D.A. also may change to take in a wider range\n\nKILllCK NIXON LTD, v. EMPLOYEES UNION (Goswami, !.) 457\n\nof commodities and services to make life worth living as far as practicable subject to compelling limitations of general interest.\n\nWe recognise that the old definition of DA, may not even serve the climate of new aspirations of various classes of employees of this vast country.\n\nLuxuries of yesterday may be tlle comforts af to-day , and necessities of tomorrow.\n\nEconomic solutions must reckon the tum-abouts in social urges.\n\nBecause even the worm turns.\n\nIndustrial adjudication which has not the limitations of the ordinary courts has to respond to the needs of changing , Society and it may be possible to widen the scope of D.A if that serves the cause of general welfare.\n\nThere may be no inexorable rule tying down ecomimiC existence to definitions of bygone days, if unsuitable or irrelevant in the context of the times.\n\nThe National Commission on Labour (1969) while dealing with DA. observed :\n\n\"We consider that payment of D.A. has to be viewed in broader context of wage policy, many elements of which have been discussed in the previous chapter. Jn a developing economy where price stabilisation has proved ineffective, or the inflationary potential cannot be controlled. any arrangement for compensating for price rise will have its raison d'etre, At the same time, a direct linkage between a rise in the index and the D.A. may create problems for price stabilisation. It can hardly be disputed that the index, is the best available indicator of changes of price leveL The reason for a disproportionately high DA, is the fixation of basic wage on a date far remote from the present\". (Para\n\n16,39, page 240),\n\nThe Commission further observed :\n\n\"It is obvious that unless money wages rise as fast as the consumer prices, it would result in an erosion of real wages, But the extent of its impact will depend on the , margin of cushion available at different levels of income .... ,,, .. We accordingly recommend that 95 per cent neutralisation should be granted against rise in cost of living to those drawing minimum wage in non-scheduled employments\". (para 16.47, page 242).\n\nThe Third Pay Commission in its Interim Report made some significant observations : ,\n\n\"We need hardly emphaise that it would be an exercise in futility to keep on increasing the emoluments of\n\nCntral Government employees, if these increases are largely H wiped 01;1t soon afteards by increases in prices of goods and services.\n\nThere is, therefore, paramount need to maintain price stability and we are confident that the Government will ake ~11 necessary fiscal, monetary and other\n\neasures, ncidmg cntrol over production and distribut10n, to mamtam the pnce line\".\n\n458 A\n\nD.A. was primarily intended to be a temporary expedient and was sought to be made available as a protection to those who have no cushion at all in their wage packet in the face of any appreciable rise in prices. Some relief was given to others also.\n\nThe hope of the two Pay Commissions that prices will decline and stablise, never came true.\n\nD.A. has, therefore, come to stay.\n\nThe price indices have now assumed menacing figures.\n\nThis is the stark reality of the situation and any problem regarding wage or D.A. has to be considered in that background at the same time not losing sight of the national economy.\n\nIn considering the question of D.A. the total wage packet of the employee must be -kept iu view.\n\nThe first and foremost consideration is the case of the employees at the minimum wage Tevel.\n\nIt must, however, be remembered that minimum wage should enable an employee not merely for the bare sustenance of life but for the preservation of his efficiency by providing for some measure of education, medical requirements and amenities.\n\nThe concept of minimum wage as also of fair wage cannot be static. It will change with the D progress of time and development.\n\nIn a recent decision of this Court in Bengal Chemical (supra) the principles for fixing of D.A. came up for consideration.\n\nAfter reviewing the earfor decisions, this Court held as follows :-\n\n\"1. Full neutralisation is not normally given, except to the very lowest class of employees.\n\n2. The purpose of dearness allowance being to neutralise a portion of the increase in the cost of Jiving, it should ordinarily be on a sliding scale and provide for an increase on the rise in the cost of living and a decrease on a fall in the cost of living.\n\n3. The basis of fixation of wages and dearness allowance is industry-cum-region.\n\n4. Emplqyees getting the same wages should get the same dearness allowance, irrespective of whether they are M>rking as clerks or members of subordinate staff or factory workmen.\n\n5. The additional financial burden which a revision of the wage structure or dearness allowance would impose upon an employer, and his ability to bear such burden, are very material and relevant factors to be taken into account\".\n\nIt is submitted on behalf of the employers that in . a scheme of H D.A. Jinked not only to the cost of Jiving index but also to basic wages by way of slabs, there must he a ceiling as otherwise it wilt not be a compensation for increased cost of Jiving but additional remuneration unconnected with the increasing cost of living at the lowest level. It is emphasised that where there is a dual link, a ceiling removes the incongruity in the D.A. rising with the basic wages out of proportion to the cost of living compensation at the\n\n....\n\nlowest level. It is fairly admitted that the ceiling fixed at any given A time on the basis of a possible rise in the cost of living index in the foreseeable future may be altered if the rise in the cost of living index later makes the ceiling nnrellective of the requisite neutralisation of the increase in the cost of living at the lowest level. It is submitted that withont a ceiling it will be impossible for any manage-·\n\nmeat to plan the business of the employers including production, B el!pansion, etc. without any certainty of wage bill being estimated at any definite figure for the foreseeable future.\n\nOn the other hand it is submitted on behalf of the workers that there should be no ceiling on D.A. till the workers reach the level of living wage.\n\nIt is also submitted that in the interest of social justice there should be no ceiling on wages without first putting a C ceiling on profits and controlling and stablising prices.\n\nThe award pertains to the clerical staff and drivers working in the Head Office of the appellant numbering about 265 out of about 743 workmen in its various establishments (page 120 of the record).\n\nOut of that also only two classes of workers are involved, namely, D the clerks and the drivers.\n\nAmongst the clerical staff there are three grades, Grade A, Grade B and Grade C as under :- Grade A: Rs. 165-15-240-20-400-E.B.-25-500.\n\nGrade B: Rs. 110-10-150-12t-200-15-260-E.B.-20-360.\n\nGrade C: Rs. 70-5-90-8-130-10-200-E.B.-12!-250.\n\nThe wage scale for drivers is as follows; Rs. 75-5-100-7-135-7.50-150.\n\nThe scheme of D.A. which is sought to be introduced with the ceilin~ is as under :- ...,\n\nPercentage Basic Pay slabs of Basic Salary\n\n(C.P.I. 441-450)\n\n!st Rs. 100 120 2nd Rs. 100 40 Rs. 201 to Rs. 500 30 Over Rs. 500 25\n\nMaximum D.A. Rs. 325/-\n\nvariations for every 10 po:nts\n\nof C.P.L\n\n5% 2% 1%\n\nMr. Mehta? representing the union, has drawn our attention to. a _few awards m the Bombay region prescribing slab system of D.A.\n\nw1tlumt ceil1g._ The first 1s tha~ of the Ahmedabad Manufacturing & Calzco Prmtmg Company L1m1ted.\n\nIt is true that on 4th slab \"Of Rs. 100/~ .and balance, 9.75% D.A. was allowed without imposition of any ceilmg. D.A. was awarded by the Industrial Tribunal in this <:ase on. a slab system at the consumer price index 841-850. The second Is the case of Indian Vegetables Products Limited, Bombay,\n\nA where there was no introduction of any ceiling and 10% D.A. at .the 3rd slab of Rs. 100/- and above was granted. In that case the r consumer price index was at 311-320. The third case is that of Godrej Soap Private Limited where again although no ceiling on D.A. was imposed, the Tribunal was dealing with a case when the consumer price index was at 396-405. It is pointed out that in all the B three above cases special leave was refused by this Court.\n\nThat, however, cannot be a ground for holding that this Court endorsed non-imposition of ceiling on D.A. as a principle.\n\nThe question as such was neither raised before the Tribunal nor before this Court in .any of the above cases.\n\nMr. Mehta also filed a list of 25 awards during the period between 1st January, 1970 and December, 1974 in the Bombay region. This was with the object of establishing case for a slab system of\n\nD.A. linked to the consumer price index with point variation without ceiling, Mr. A K. Sen has commented that some of these awards were as a result of settlement and the question of ceiling on D.A. was not even raised for a decision.\n\nIn the case of Dorr-Oliver (India) Limited, the scale of pay was fixed on the basis of the consumer price index 700 and D.A. was fixed, if the index rose beyond 700,\n\non a slab system. It is to be noted that a flat sum of Rs. 9 /- as D.A. was allowed on the salary of Rs. 500/- and above and for variation for rise of every ten points in slab above 700, Rs. 9/- was fixed for such slab. It is to be noted that there is no percentage basis of D.A. on the salary and it is ony linked to the consumer price index.\n\nIn the case of Kanji Jadhavji & Company, it is, however, seen that for pay in excess of Rs. 210/- but upto Rs. 670/- per month t paisa per rupee per point upto Rs. 180/- per month plus '/3 paisa per rupee per point in excess of Rs. 180/- upto Rs.\n\n210/- plus Hh paisa per rupee per point in excess of Rs. 210/- subject to a maxiinum of Rs. 1.65 per point per month was allowed.\n\nThere is a fixed salary of Rs. 670/- beyond which D.A. was not made admissible.\n\nIn the case of Tata Press Limited which is an award said to be by settlement, additional D.A. of 10 per cent has been given on the basic wage of above Rs. 401, but there is no linkage to the consumer price index.\n\nIn. Godavari Sugar Mills Mam!i Private Limited, D.A. stopped at the 4th Rs. 100/- of basic\n\nsalary.\n\nAt this slab 36 per cent D. A was awarded with variation of 1 per cent for every ten points rise or fall in the consumer price index 791-800. Identical is the case of another award in the case of Somaiya Organo Chemicals Limited.\n\nIn Britannia Biscuit Company Limited's case. no D.A. has been awardecl beyond the salary slab of Rs. 5001- D. A. was considered in this case when the cost of living index number was 301-310 (old series).\n\nIn servcral awards in the compilation given by Mr. Mehta, minimum D.A. has been fixed.\n\nOn the other hand Mr. Kaka intervening for Cynamid India Limited has drawn our attention to a number of awards in the Bombay region wherein there appears to be a ce'iling on D. A These are :\n\n1. National M2chinery Manufacturers Ltd.\n\nMaharashfra Gazette (M.G.G.) dated 30.6.1966.\n\n2. Indian Organic Chemicals Ltd.\n\nM.G.G. dated 21.11.1974.\n\nI -\n\n' '\n\n3. The Millowners Association.\n\nM.G.G. dated 31.10.1974.\n\n4. Phoenix Mills Ltd .\n\nM.G.G. Pa.t 1-L dated 22.6.1972.\n\n5. Bayer (India) Ltd.\n\nM.G.G. dated 31.1.1974\n\n6. West Coast Paper Mills M. G. G. dated 20.7.1972\n\n7. Voltas Limited I. c. R. Febru1ry 1970\" page 57\n\n8. M'1fphy India Limited M. G. G. dated 27. 7. 1972\n\n9. Polychem Limited M. G. G. dated 6. 8. 1970 Mr. Mehta has, however, submitted that most of the settlements in pursuance of which awards had been made have expired and notices of termination have been served on the employers and in some cases disputes have been raised.\n\nThe management also argued that this Court in M/s Unichem Laboratories Ltd. v. The workmen ( 1 ) noticed in paragraph 33 of the decision-\n\n\"Another feature of the scheme adopted by the Tribunal is that it puts a ceiling on the employees drawing basic wages up to Rs. 300 per month alone being eligible for dearness allowance; whereas under the practice originally obtaining in the company there was no such limit.\"\n\nand, therefore, must be held to have approved of imposition of ceiling. We are unable to accept that this Court was called upon to decide about the questio!l of ceiling in that appeal which was at the instance of the employers and not of the employees nor against the imposition of ceiling. The management also drew our attention to a decision of this Court in Remington Rand of India v. Its Workmen (2) wherein the scheme of D.A. contained a maximum of Rs. 200 at the index figure 351-360 and the maximum was not interfered with by this Court. It is sufficient to point out that the question of desirability of ceiling or otherwise was not at all in issue in that appeal and therefore, this Court was not called upon to pronounce upon the matter.\n\nWe, however, find that in the case of employees under the Central Government a kind of ceiling has been in vogue. For example one of the Second Pay Commission's recommendations was that the benefit\n\nof D.A. should in future adjustments be extended to all employees drawing a basic pay below Rs. 400 per mensem in such a way that G the total of basic pay and D.A. paid to an employee in the pay range of Rs. 300 to Rs. 400 does not exceed Rs. 400 (page 97, paragraph 16). The Third Pay Commission also after fixing D.A. at a percentage of 3.5 per cent of pay upto the pay range of Rs. 300 fixed a maximum of Rs. 10 per month and a minimum of Rs. 7 per month.\n\nSimilarly for the pay range above 300 a percentage of 2.5 per cent of pay was fixed subject to a maximum of Rs. 20 per month and a H minimum of Rs. 10 per month. The Commission further recommended that the pay plus D.A. should in no case exceed Rs. 2,400 per month.\n\n(!) (1972] I L. L. J. 576,\n\n(2) [1962] I L. L. J. 287,\n\nA From the above one thing, however, is clear that the question of imposition of ceiling on D.A. is not an absolutely alien phenomenon.\n\nAlthough it might not have been the general practice, ceiling was not rejected out of hand as irrational or unjust by unions in the course of collective bargaining in the Bombay region.\n\nB So far as the workers involved in these appeals are concerned the question whether D.A. should cease at a certain level of salary does not anse for consideration.\n\nThe maximll!ll basic of the highest grade in tile case of these employees is Rs. 500. It may, however, be noted that a system has been in vogue in the case of Government employees where D.A. ceases to be admissible on reaching a certain level of C salary. The question remains as to whether a ceiling should be placed on D.A. itself, when it exceeds Rs. 325 as has been sought to be done by the _employers. The employers gave a notice of change for imposition of ceiling on D.A. in May 1966 when the cost of living index has been on the constant rise each year. While the average tor 1966 was 630 those for the subsequent years from 1967 to 1974 were 697, 740, 766, 797, 832, 876, 982 and 1198. In December D 1974 it was 1336. The cost of living index being on a constant rise it is necesrnry to consider the totality of the wage packet of the workers and other relevant factors in order to decide if a ceiling on D.A. should be imposed. In this context our attention has been drawn by Mr. Sen to the statement of objects and reasons to the Additional Emoluments\n\n(Compulsory Deposit) Bill 1974 which is as follows :-\n\n\"Controlling inflation is today the single most important task facing the country. Periodical revision of wages and adjustments in the rates of dearness allowance, which have been adopted as remedies for moderating the impact of rising prices, have been proving ineffective.\n\nIn view of the mounting pressure of inflationary forces, payments of additional wages or dearness allowance will give an upward thrust to prices and will inevitably aggravate the situation, and also neutralise the effect of any increase in the wages or dearness allowancr. In the circumstances, urgent steps aimed at breaking this vicious circle of money incomes chasing prices be;. came inescapable. These measures undoubtedly involve some sacrifices by different sections of the community. As a part of these anti-inflationary measures, the Additional Emoluments (Compulsory Deposit) Ordinance, 1974, was promulgated by the President on the 6th July, 197 4. : ....... \"\n\nReference to the above is made in order to highlight the dieadfur consequences of inflation and the inefficacy of mere wage rise as a solution.\n\nWe may, however, in this connection usefully refer to what the National Commission on Labour said on this subject :\n\n\"Firstly, the increased purchasing power in the hands of the workers on account of compensatory payments for rise in cost of living forms a small part of the overall increase\n\n, -\n\nin purchasing power. Secondly, the elasticity of compensatory payments to changes in cost of living is generally less thari unity so that the feed-back must taper off. Money wage stability, though important for price stability, is seldom a necessary, much less a sufficient condition for it. On the other hand, holding of the price line, particularly of the cost of living is an adequate condition for preventing increases in money wage payments that are not related to increases in productivity. This alone can prevent a fall in real wages.\"\n\nBefore we proceed further we have to take note of certain facts concerning the dispute. Although the company employs a total of 1142 workmen in its various factories and branches the present dispute relates to 265' workers in the Head Office (Bombay) out of them.\n\nIt is not disputed that the supervisory staff consisting of 86 members, although not involved in this reference, have been in receipt of D.A. under the same scheme. There is uo ceiling on D.A. in the Calcutta branch of the company where the workers are paid according to the Bengal Chamber of Commerce's rates. The industry-cum-region aspect may at present take care of the few employees working in Calcutta. It is, however, not unlikely that all the employees of the company may claim to be treated alike. There .are also disputes pending in respect of the subordinate staff at the Head Office.\n\nWithout. adding fnrther details it is sufficient to state that 'a general problem like imposition of ceiling on D.A. in a company cannot be treated on the statistical burden relevant only to a sectio?:! of the employees. Both the parties realise the importance of this aspect and produced before us a large number of documents containing various details inculding balance-sheets of the company upto 1973 to enable us to have a complete picture of the entire matter.\n\nThe management has produced a statement showing the comparison of total emoluments of clerical and supervisory staff after implementation of the award and those of the junior executive staff.\n\nWe have quoted therefrom showing the figures in April 1973 and July 1974 with the respective index at 924 and 1194.\n\nIt will be seen that the minimum basic salary of a junior executive is Rs. 400 and maximum is Rs. 1000. With allowances the junior executive at the minimum gets a total of Rs. 700 and at intermediate stages, namely, of Rs. 530 and 800, he gets a total of Rs. 830 and Rs. 1150 respectively. When he reaches the maximum the total with allowance is Rs. 1350. The clerical staff at the maximum grade which is Rs. 500 gets a total amount of Rs. 1230 inclusive of D.A. of Rs. 730 after removal of the ceiling at the C.P.I. 924. At the intermediate stage a clerk gets Rs. 874 in the same index (Rs. 300 basic salary plus Rs. 574 D.A.). At the minimum he gets Rs. 70 basic pay plus Rs. 340 D.A. totalling Rs. 410 in the same index 924. The position is worse when the consumer price index touches 1194 as\n\nseen above. The absence of ceiling on D.A. can result in curious anomalous situations where in the pay packet of clerical staff would\n\nexc:'Cd the pay packet o! junior execuliye staff. This is hardly conducive to d1sc1plme, efficiency and effective exercise of control.\n\nKILLICK NIXON LIMITED BOMBAY\n\nCOMPAR!SON OF TOTAL EMOLUMENTS OF CLERICAL SUPERVISORY AND JUNIOR EXECUTIVE STAFF\n\nen c: \"'\n\nCLERICAL\n\nSUPERVISORY\n\nJUNIOR EXECUTIVE \"' m is: Travel- \"' Basic Basic Basic House Salary To:al S•lary R~!lt Al tin~ Al- Total\n\n(\"l\n\nDA.\n\nTotal Salary\n\nDA. 8 lowcane lowance \"' ...;\n\nRs.\n\nRs.\n\nRs.\n\nRs.\n\nRs.\n\nR<;.\n\nRs.\n\nRs.\n\nRs.\n\nRs. \"' \"' \"'\n\nAPRIL 1973 Minitnum 70 340 410 Min. 275 555 830 400 150 150 700 0 \"' (Feb. 830\n\n...;\n\nCPI Middle 300 574 874 Mid. 520 730 1250 530. 150 150 en\n\n924) Maximun1 500 730 1230 Mid. 800 730 1530 800 200 150 1150 Max. 1200 730 1930 1000 200 150 1350 -'° ..., ~\n\nJULY 1974\n\nen Minilnum 70 475 545 Min. 275 764 1039 400 150 150 700 c: \"' (May CPI Middle 300 790 1090 Mid. 520 1000 1520 530 150 150 830 ':\" 1194).\n\nMaximum 500 1000 1500 Mid. 800 1000 1800 800 200 150 1150 en n Max. 1200 1200 2200 1000 200 i:; o 1350 1-\n\n• ' . •.\n\n'I[\n\nAlthough the change in the D .A. scheme imposing the ceiling was notified in May 1966, it could not have been then contemplated that the index would touch such a high mark; yet within these nearly nine years that the dispute unfortunately has dragged on, it has given the court an idea of the effect of removal of the ceiling.\n\nThe management has submitted statements showing the actual working of the D.A. formula without the ceiling and tried to show that it would not be possible for it to bear the financial burden. The Tribunal went into this aspect, although at that time the figures of the actual working could not be there, and refused to accept the plea of incapacity to bear the burden. The main argument of the management was about the loss of Managing Agency which, according to it, resulted in shrinkage of income. The Tribunal went into the matter and came to the conclusion and, according to us, rightly, that the said pica had no substance.\n\nThe company is one of the twenty big industrial houses in the country. Originally there were two companies, one Killick Industries Limited and another Killick Nixon & Co. Private Limited. Killick Industries Limited was incorporated as a Public Limited Company on November 14, 1947 and Killick Nixon & Co. Private Limited was incorporated as a Private Company on January 23, 1948. Some time in 1957 the Killick Industries Limited purchased all the shares of Killick Nixon & Co. Private Limited with the result that Killick Nixon & Co. Private Limited became a wholly owned subsidiary of Killick Industries Limited. Under section 43A of the Companies Act, 1956, Killick Nixon & Co. Private Limited became a Public Limited Company with effect from March 28, 1961 and by an order of the Bombay High Court of March 24, 1970, was amalgamated with Killick Industries Limited with effect from August 1, 1969. Following the amalgamation and with the approval of the Central Government the name of Killick Industries Limited was changed to Killick Nixon Limited (the appellant). The activities of the company are : manufacturing of engineering products, namely, Jhonson Vibrators, U dall Pressing equipments and E.F.C.C. Furnaces; Selling agency of engineering products such as Vibrators, drilling equipment, electric meters and dredgers, general selling agency in respect of snowcem cement paint and allied products, carbon papers; slotted angles, Hawkins pressure cookers; export of piece goods; and agency of City Line and Hall Linc of U.K. and clearing and forwarding work.\n\nThe question, however, in this case may not be simply the financial capacity of the company alone. Ordinarily the capacity to bear the additional burden would certainly be a relevant factor. We are, however, not considering fhc matter from that aspect in the present H case. We will assume that the company will be able to bear the additional financial burden if the ceilil!g is removed. We do not agree with the Tribunal that it is only if the company would be required to close down that such a demand should be rejected. That is an incorrect view to take in dealing with th~ problem with which we are concerned .\n\n.,., .. ,_\n\nA We have, therefore, a company which is prosperons. The consumer. price index has been soaring higher and higher. The employees have to get protection of their real wages. It is well settled that complete neutralisation of the rise of cost of living cannot be allowed except to the lowest category of employees. In the view of the National Commission on Labour \"the only purpose of dearness allow- B ance is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before.\n\nThis purpose would be served by an equal amount of dearness allowance to all employees irrespective of differences in their emoluments\" (page 243). It was strenuously submitted that this view of the Commission should be accepted by us. In other words we should first ascertain what. is the minimum wage in this company at which C a worker would require complete neutralisation of the cost of living and whatever amount is found to be necessary for him as a protection agah>t hi' i; eal wages should only be available to all other employees. We are not required to give our opinion about this submission for the simple reason that the management here has already introduced a scheme in which there is percentage system on salary D slabs linked with the consumer price index and there is no dispute about it.\n\nAll that the management wants in this case is that D.A. must not go on rising with the~ soaring price index and a limit should be imposed. We have already observed that in view of the status of the eompany the capacity to pay will not alone be of moment in favour of removal of the ceiling. The problem will have to be viewed from the following important aspects :- '\n\n( 1) Condition of the wage scale prevalent in the company.\n\n(2) Condition of the wage level prevalent in the industry and the region.\n\n(3) The wage packet as a whole of each earner in the company with all amenities and benefits and ii$ ability and potency to cope with the economic requirements of daily existence consistent with his status in society, responsibilities, efficiency at work and industrial peace. ( 4) The position of the company viewed in relation to other comparable concerns in the industry and the region.\n\n(5) Peremptive necessity for full neutralisation of the cost of living at the rock-bottom of wage scale if at or just above the subsistence level.\n\n( 6) The rate of neutralisation which is being given to the employees in each salary slab.\n\n(7) Avoidance of huge distortion of wage differentials taking into reckoning all persons employed in the concern.\n\n(8) Degree of sacrifice necessary even on the part of workers in general interest.\n\n(9) The compulsive necessity of securing social and distributive justice to the workmen.\n\n(10) Capacity of the company to bear the additional. burden.\n\n(11) Interest of national economy.\n\n(12) Repercussions in other industries and society as a whole.\n\n( 13) The state of the c<1nsumer price index at the time c of decision.\n\n( 14) Forebodings and possibilities in the foreseeable future as far as can be envisaged.\n\nWe should also add that revision of D.A. is not the same thing as revision of wages.\n\nHaving given our anxious thought to all the above aspects, which are not exhaustive, we are unable to come to the conclusion that removal of the ceiling in the present context will be justified. The company has been able to make out a case for imposition of a ceiling. At what particular amount there should be a ceiling on D.A. is a matter which will have to be gone into by the Tribunal keeping E, in view the above principles. The financial capacity will have to be judged with regard to the commitment of the company as a whole towards all its employees.\n\nWe are unable to agree with the contention of the workers that unless there is a ceiling on profits there cannot be a ceiling on D.A.\n\nF. The question of D.A. being intimately connected with the cost of living, the matter cannot be judged by the test of the aforesaid submission of the workmen.\n\nThere is, however, one thing which we must point out, lest there should be some misconception abont it and that is that so far as the lowest paid employees at or just above the subsistence level are con-\n\nG,_ cerned, they are entitled to 100 per cent or at any rate not less thari 95 per cent nentralisation of the rise in the cost of living and hence ithere should be no ceiling on dearness allowance payable to employees within the slab of first Rs. 100, unless it can be shown by the management that the rate of neutralisation in their case is more than 100 per cent. So far as the employees in the higher slabs are concerned, it would be for the Tribnnal to consider, having regard R to the aforesaid principles, whether a ceiling shoula be imposed at the second slab of Rs. 100 or only at the last slab of Rs. 201 to Rs. 500. The manner in which th.e ceiling may be imposed would also have to be decided by the Tribunal in the exercise of its judi cial discretion keeping in view the aforesaid principles. The ceiling may be fixed either by prescribing a certain amount as the outside.\n\nA limit of the dearness allowance or by reference to the quantum of dearness allowance payable at a certain wage level. We do not wish to Jay down as an invariable rnle that in all cases there should be ceiling on D.A. Whenewr a case of this nature comes for industrial adjudica1ion it will always be a delicate task for the Tribunal to strike a balance keeping in view the above principles, weightage of n each one of which being variable according to conditions obtaining.\n\nWhether or not there should be a ceiling on dearness allowance in a given case must depend on the facts and circumstances of that case.\n\nThere can be no inexorable rule in that respect. We have formulated, the various principles which must be taken into account by the Tribunal in determining this question but the most dominant of these C must always be that of social justice, fqr that is the ideal which we have resolved to achieve when we framed our Constitution.\n\nIn the result the award is set aside with regard to demand No. 2(a) relating to ceiling. The reference stands restored with regard to that specific matter and will be disposed of by the Tribunal as early as possible after giving opportunity to the parties. The appeals are partly allowed without costs.\n\nAppeals partly allowed.\n\nV.P.S.\n\n,..", "total_entities": 8, "entities": [{"text": "KILLICK NIXON LIMITED", "label": "PETITIONER", "start_char": 6, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "KILLICK NIXON LIMITED", "offset_not_found": false}}, {"text": "KILLICK & ALLIED COMPANIES EMPLOYEES UNION", "label": "RESPONDENT", "start_char": 29, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "KILLICK & ALLIED COMPANIES EMPLOYEES UNION", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 87, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 101, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ", "label": "JUDGE", "start_char": 120, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "[1969] 2 S. C. R. 113", "label": "CASE_CITATION", "start_char": 7777, "end_char": 7798, "source": "regex", "metadata": {}}, {"text": "section 43A", "label": "PROVISION", "start_char": 33627, "end_char": 33638, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 33646, "end_char": 33665, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1975_1_469_472_EN", "year": 1975, "text": "DHAE.AM SINGH RATHI v.\n\nHARI SINGH M.L.A. & ORS.\n\nMay 2, 1975\n\n[N. L. UNTWALIA AND s. MURTAzA FAzAL ALI, JJ.J ' Representation of the People Act, 1951-S. 33(1)-Rr. 2(2) and (4) of the Rules-Failure to supply postal address in the nomination paper-Effect of- Failure of proper authentication. of tl11a11b n1ark-Efject of.\n\nThe appellant challenged the dcction of the respondent to the State Assembly on the ground that the nomination papers of two persons \\11ere improperly rejected by the Returning Officer. The High Court held that the nomination papers suffered from defects of non compliance with the requirements of s. 33 ( 1) of the Representation of People Act and so were rightly rejected.\n\nDismissing the appeal to this Court,\n\nHELD : (i) The High Court was right in its finding that the non1ination paper of one of the persons was not improperly rejected by the Returning D Officer.\n\nFrom a reading of s. 4 of the Rules and Form 28 it would be clear that non-supp]y of postal address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address i~ a failure to comply \\<ith the provisions of s. 33(1) of the Act.\n\n[471-G]\n\n{2) (a) Nomination paper of the second person had been rightly rejected by the Returning Officer. The defect that the nante of the constituency of the proposer was not given in the nomination form was of a substantial character.\n\n[472-BJ\n\n(b) There was clear violation of r. 2(2) of the Rules.\n\nA thum\\1 mark has to be placed by the proposer on the nomination paper in the presence of the Returning Officer and such officer, on being satisfied as to his identity, has to attest the mark as being the mark of that person. This has not been done in this case. [ 4 72-BJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 84 of 1973\n\nFrom the judgment and order dated the 8th day of December, 1972 of the Punjab and Haryana High Court at Chandigarh in Election Petition No. 13 of 1972\n\nB. R. L. lyangar and R. L. Kohli, for the appellant.\n\nJ. P. Goyal and R. A. Gupta, for respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, J.-This is an appeal under section 116A of the Representation of the People Act, 1951-hereinafter called the Act, by the election petitioner whose petition challenging the election of H respondent no. 1 (for brevity-the respondent) has been dismissed by the High Court.\n\nEventually the only ground which could be pressed in the Hill? Court to challenge the election of the respondent\n\nas that the. nommat10n papers .of two persns namely Shri Jagan Nath and Shn rabha Ram were improperly reiected b~ the Returning 'j Officer. The High Court framed only two issues for trial and decided\n\n--!o'i\n\nA them against the appellant. It has held that the nomination papersboth of Jagan '.ath and Prabha Ram suffered from defects of substantial character and, there:fore, they were rightly rejected by the Returning Officer.\n\nJagan Nath filed two nomination papers in the prescribed Form D No. 28 prescribed under rule 4 of the Conduct of the Election Rules 1961-hereinafter referred to as the Rules.\n\nIn both the papers in the column \"His postal address\" the only thing written was-\"Smalkha Mandi\". The Returning Officer rejected both the nomination papers <Jf Jagan Nath on the ground that the candidate had not given the name of his father and his full address.\n\nThe name given as Jagan Nath and address as Smalkha Mandi were not sufficient. The Return- C ing Officer described if as a technical error fit to be rectified but because there was nobody present on behalf of the candidate at the time of the scrutiny of the nomination papers the rectification could not be made. Hence the nominations were rejected. Following the decisions of this Court in Brijendralal Gupta and another v. Jwalaprasad and\n\nothers(') and in Prahladdas Khandeiwal v. Narendra Kumar Salve(') D the High Court has held that the nomination papers suffered from a defact of non-compliance with the requireljlent of section 33 (1) of the Act and that the defect was of a substantial character.\n\nOnconsideration , of the evidence adduced before it, it held :\n\n\"Thus in the established circumstances of the case, it was manifest that the mention of Smalkha Mandi only, in the nomination papers was no more than an apology of an address.\n\nIt was, according to Mr. Joginder Pal Narang's testimony in this Court hopelessly incomplete. To my mind also it was equal to not giving any address at all.\"\n\nF We concur in the view of the High Court that filling up the column of postal address of the candidate in 'the nomination paper is necessary. The High Court has referred to several provisions in the Act and the Rules to point out the. purpose of supplying the postal address.\n\nIt appears that the name of the post office concerning Smalkha Mandi, Smalkha village, Model Town etc. was Smalkha. r The name of the post office was not Smalkha Mandi.\n\nOn the face G of the addressgiven in the nomination papers there was the defect of incorrect mention of the name of the post office.\n\nThe name of the District was also not given. It has come in the evidence of the respondent that there were other place~ of the names of Smalkha and Smalkha Mandi in the States of Haryana and Rajasthan. Even ignoring the defects aforesaid the High Court has noticed on consideration of the evidence and specially of Jagan Nath himself that the postal H address given in either of his nomination forms was so very incomplete that no letter addressed to him to that address could possibly be delivered to him.\n\nThere were several persons of the name of Jagan Nath in Smalkha Mandi, Smalkha village.\n\nJagan Nath was ..\n\n(J) [1960] 3 S.C.R.650.\n\n\nD. s. RATH! v. HAR! SINGH (U11twalia, J.) 471\n\nserving at the shop of a Sweet meat Seller, Railway Road, Smalkha A Mandi and was resident of Bharbbujanwali Gali. The interesting part of this case is that Jagan Nath did not file an election petition. It was filed by the brother of an unsuccessful candidate.\n\nEventually Jagan Nath was impleaded as a respondent in the election petition.\n\nHe filed a written statement and examined himself as R.\\V. 5.\n\nHis definite case was that until and unless some more details were given B in his postal address no letter on that skeleton descriptio11 as given in the nomination papers could -be delivered to him by the postal authorities.· Taking the totality of the circumstances the High Court has rightly held that no postal address in effect was given on either of. the nomination papers of Jagan Nath .\n\nA nomination paper ha~ to be delivered to the Returning Officer by the candidate or his proposer in accordance with section 33(1) of the Act. The nomination paper must be completed in the prescribed form. The requirement of sub-section ( 4) is .that the Retur_ning Officer shall satisfy himself on the presentation of a nomination paper\n\nthat the names and electoral roll numbers of the candidate and 'his proposer as entered i!l the nomination paper are the same as those entered in the electoral rolls.\n\nIn certain types of defects detected at the time of the presentation of the nomination paper the proviso to sub-section ( 4) empowers the Returning Officer to overlook such mistakes er to get them rectified as the case may be.\n\nGenerally speaking the kinds of defects mentioned in the proviso would be of a substantial character so as to jnstify the rejection of a nomination paper.\n\nThere may, however, even amongst these types of defects be some such that necessitates their rectification and if not rectified\n\ntliat may make the nomination paper liable to be rejected. But the defect of non-supply of postal address is not covered by the proviso to sub-section ( 4) of section 33 of the Act. It is a defect which rails for consideration at the time of the scrutiny of the nomination papers. If the defect is a substantial one then the nomination paper has got to be rejected.\n\nSub-section (4) of section 36 enjoins the Returning Officer not to reject any nomination paper on the ground of any defect which is not of a substantial _character. But if it is of a substantial character then sub-section (2) provides that the Returning Officer shall reject the nomination paper when \"there has been a failure to comply with any of the provisions of section 33 or section 34:\" Reading Rule 4 of the Rules and Form 28 it would be noticed that on-supply of yosta.1 address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address is a failure to comply with the provisions of section 33 (1). Hence we agree with the findings of the High Court that Jagan Nath's nomination papers were not improperly rejected by the Returning Officer. ·\n\nThe nomination paper of Prabha Ram suffered from more serious H types of defects.\n\nThe Returning Officer rejected the nomination of Prabha Ram on the grounds (1) that the name of the Constituency of the proposer was not gien in the no;::'nation paper ; (2) that the numbers of electoral roll given in the nomination paper did not tally with the candidate's number in the true copy of the electro! roll;\n\nIOSC/75-31\n\nA ( 3) that at the name of the proposer one more name was given and the entries in the electoral roll did not tally with the numbers mentioned by the proposer and the candidate in the nomination paper. Following the dictum of this Court in the case of N. T. Veluswami Thever v.\n\nC. Raja Nainar and others(') the High Court has taken into consideration another defect, in that the thumb impression of one of the B two proposers had not been authenticated in the manner required by law.\n\nEven ignoring grounds 2 and 3 forming the basis of the order of the Returning. Officer rejecting the nomination paper of Prabha Ram as being possibly covered by the proviso to section 33 ( 4), the first defect pointed out by the Returning Officer was of a substantial character.\n\nIt made it obligatory for him to reject the nomination paper.\n\nOver and above that defect the High Court has rightly C noticed another fatal defect. Section 2(i) o~ the Act says :\n\n\" 'sign' in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed.\"\n\nD The prescribed manner of authentication i~ to be found in Rule 2(2) of the Rules.\n\nA thumb mark has to be placed by the proposer on the nomination paper in the presence of the Returning Officer and such officer on being satisfied as to his identity has to attest the mark as being the mark of that person.\n\nThere was, therefore, a clear violation of this rule also. We see no reason to differ from the view E of the fligh Court that the nomination paper of Prabha Ram was not improperly rejected by the Returning Officer.\n\nFor the reasons stated above the appeal fails and is dismissed with costs payable to respondent no. 1 alone.\n\nAppeal dismissed.\n\nP.B.R.\n\n(1) A.LR. 1959 S.C. 422.", "total_entities": 21, "entities": [{"text": "DHAE.AM SINGH RATHI", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "DHARAM SINGH RATHI", "offset_not_found": false}}, {"text": "HARI SINGH M.L.A. & ORS", "label": "RESPONDENT", "start_char": 24, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "HARI SINGH M.L.A. & ORS", "offset_not_found": false}}, {"text": "N. L. UNTWALIA", "label": "JUDGE", "start_char": 64, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA*", "offset_not_found": false}}, {"text": "s. MURTAzA FAzAL ALI, JJ", "label": "JUDGE", "start_char": 83, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 112, "end_char": 150, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 33(1)", "label": "PROVISION", "start_char": 151, "end_char": 159, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 620, "end_char": 625, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 911, "end_char": 915, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 1140, "end_char": 1148, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1951", "statute": "Representation of the People Act, 1951"}}, {"text": "section 116A", "label": "PROVISION", "start_char": 2138, "end_char": 2150, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 2158, "end_char": 2196, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Conduct of the Election Rules 1961", "label": "STATUTE", "start_char": 3028, "end_char": 3062, "source": "regex", "metadata": {}}, {"text": "section 33", "label": "PROVISION", "start_char": 3994, "end_char": 4004, "source": "regex", "metadata": {"linked_statute_text": "the Conduct of the Election Rules 1961", "statute": "the Conduct of the Election Rules 1961"}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 6659, "end_char": 6672, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 7721, "end_char": 7731, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 7948, "end_char": 7958, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 8296, "end_char": 8306, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 8310, "end_char": 8320, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 8563, "end_char": 8573, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 9802, "end_char": 9812, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(i)", "label": "PROVISION", "start_char": 10055, "end_char": 10067, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_1_473_488_EN", "year": 1975, "text": "SYED AHMED AGA ETC.\n\nSTATE OF MYSORE & ANOTHER\n\nMay 2, 1975\n\n[H. R. KHANNA, M. H. BEG ANDY. V. CHANDRACHUD, JJ.]\n\nConstitution-Articles 19(1) (g), 304(b) & 32-Whether a 32 petition maintainable to chalfenf(e oon-conipliance with proviso to Article 304(b)--Mysore Silk Worm Seed & Cocoon (Regulation of Production, Supply & Distribution)\n\nAct. 1960--A1nendn1ents whether requires fresh sanction rl the President under Article 304(b)-lncrease in quantum of pe1Ullty whether amounts to\n\n-473\n\nadditional restrictons-Nature of penalty.\n\nThe petitioners challenged the validity of amendments made to Mysore Silk Worm Seed and Cocoon (Regulation of Production, Supply and Distribution) Act, 1960, on the ground that the -amendments imposed aditional restrictions upon the rights of the petitioners to carry on trade and business without obtaining the Presidential sanction required by proviso to Art. 304(b) of the Constitution.·\n\nThe Principal Act had received the sanction of the President. 1bc reasona- D bleness of any restrictions ether of th~ principal Act or of the amendments has net been challenged. It is not disputed that the Presidential sanction was not obtained for th~ amendments.\n\nThe respondents contended-\n\n( I) No petition under Article 32 of the Constitution can lie to challenge restrictiom covered by Article 304(b), since the freedom of trade envisaged E by Article 304(b) is different from freedom of trade guaranteed by Art. 19(1) (g).\n\n(2) The amendments did not impose additional restrictions on the petitiooers' right to carry on trade and business. Amendments merely introduced the restrictions which were contained in the principal Act and the statutory roles 1nade thereunder and therefore did not impose any additional restrictions.\n\nSection 12 of the princ!ral Act reads as under :\n\n\"12. Penalties---(!) Any person who contravenes the provisigns of section 3 er 4 shall be punishable with fine which may extend to one hundred rupees.\n\n(2) any rearer who contravenes the provisions of section 6 or 7 or any other provision of this Act or any rule, order or notification! made thereunder, shall be punishable with fine which may extend to fifty rupees.\n\n(3) Any licensed buyer who contravenes the provisions of sections 7 or 8 or any other provision of this Act or any rule, order or notifi-~\n\ncation made thereunder, shall be punishable with fine which may extend to two hundred and fifty rupees.\n\n(4) Save as otherwise provided in sub-section (!), (2) and (3), any person who contravenes any of the provisions Of this Act or of any rule. order or notification thereunder, shall be punishable with fine which may extend to t\\vo hundred and fifty rupees.\n\n(5) (a) Without prejudice to any punishment under the preceding\n\nsubsections the Director of Sericulture in Mysore may, after giving a reasonable opportunity to the person conc.erned to be heard suspend or cancel the licence granted to any person for preparing silk~ worm seed if such person is convicted at least twice for an offence under this Act. -\n\n. (b) Any person aggrie\\'e<l by the suspension or cancellation of a. licence under clause (a) may :.ippeal to the Government within such time as may be prescribed and the decision of the Government on such appeal shall be final and shall not be 'called in question in anv Couri of Law\". ·\n\nAmendments to section 12 \\Vere made by section 7 and 8 of the ,-\\mending Act which read as under :-\n\n\"7. Amendment of section 12. Jn s-ection 12 of the rincipal Act,-\n\n(1) in suf>..section (1), for the words \"one hundred rupees·, the words \"two hundred rupees\" shall be substituted;\n\n(2) in sub-section (2), for the words and figures ;.section 6 or 7 qr any other provision of this Act or any rule, ordler or notification made thereunder\", the words, figures, brackets and letter, \"section 6'1 or clause (a) of sub-section (I) of section T' shall be substituted;\n\n(3) after sub-section (2), the following sub-section shall be inserted. namely :-\n\n\"(2A) Any person who contravnes the provisions of clause (b) of sub-section (1) of section 7 or sub-section (2) of that section shall be punishable with imprisonment which may extend td three months or with fine which may extend to five hundred ntpees or with both\" ;\n\n(4) for sub-section (3), the following sub-section shall be substituted, namely :-\n\n\"(3) Any person who contravenes the provisions of section 8 shall be punishabJe with fine which may extend to two hundred and fifty n.tpees\" ; 1; i '\n\n(5) in sub-section (4), for the words, brackets and figures \"subsections (1). 2) and 3)\", the words, brackets, figures and letter \"subsections (!), (2), (2A) and (3) shall be substituted\".\n\n\"8. Insertion of ne\\v sections l 2A and 12B-After section 12 of the Principal Act, the following sections shall be inrted, namely :-\n\n\"12A. Abetment-Whoe\\'er abets any offence punishable under this Act shall be punished with the punishment provided in this Act for such offence.\n\n12B. Certain offences to be cognizable-The offences under subsection (2A) of section 12 shall be cognizable\"'.\n\nG HELD : A citizen is entitled to come to Court with the allegation that i bis fundamental right to carr}' on business or trade is affected adversely by a provision which does not legally exist The restrictions contemplated by Article 304 (b) may be of a character different from those of an ind.ividual citizen's right to trade, but it cannot be denied that their impact on individual's right is very often direct. [477AB]\n\nHEI.D FURTHER : Stringent reguiations were already existing under the H principal Act and the ntles framed thereunder. No additional restriction is im\n\nposed by th~ Amending Act 4(1): Nw section 7(2) merely makes evasio.n of the requirement to conduct business 1n the cocoon market of an area mo1e difficult.\n\n[481C-D, 482-D]\n\nThe amendments to section 12 increase the quantum of penalties.. But the increase in the penalties is such, in view of the change of the value 1n mony, as not to amount. to an appreciable increase in restri.cti.on even from th~ point of view of a person who wants to break the restnct1ve laws.\n\nPenalties are\n\n...\n\nSYED AHMED AGA.V. MYSORE (Beg, J.) 475\n\nreally part of the procedure. for _the enforcement of restrictions. They do not A creat, e new offences.\n\nThey only make vioJation of whatever restrictions on trade and commerce were there more onerous.\n\nThey, therefore) cannot be looked upon as additional restrictions upon freedom of trade and commerce.\n\nI484B-DJ\n\nHELD FURTHER : Amendments requiring some more persons to take out licences, vtho may not have Q.een previously coveredby provisions relating to Jicences does not constitute a ral increase in restriction upon commerce. If the substance of the statutory nde is converted into a statutory provision. there can hardly he sai<l to be additional restrictions impos~ by the amending J..aw. What may be n restriction of his choice, from the point of view of an individual citizen -engaged in a trade may not be a restriction on inter-state or intra-state commerce viewed from the angle of the trade as a bole. Jt is only an additional restriction from the special point of view of Art. 304(b) which requires Presidential sanction. [487C-E]\n\nPetition dismissed.\n\nORIGINAL JURISDICTION: Writ Petitions Nos. 137 and 203 of 1971.\n\nPetitions under Art. 32 of the Constitution of Jmlia.\n\nA. K. Sen, K. R. Chaudhuri and K. Rajendra Choudhary, for the\n\n:petitioner (In Petition No. 137). D\n\nK. K. Chaudhuri and K. Rajendra Chowdhary, for the petitioner (In petition No. 203). ·\n\nF. S. Nariman, Additional-Solicitor General of India and M.\n\nVeerappa, for the respondents (In petition No. 137).\n\nM: Veerappa, for respondents (In Petition No. 203).\n\nThe Judgment of the Court was delivered by\n\nBEG, J. The two writ Petitions before us under Article 32 of the Constitution of India by persons carrying on the business of silk worm cocoon. rearing and reeling challenge the validity of various F .amendments of the Mysore Silkworm Seed and Cocoon (Regulation ·\n\nof Production, Supply and Distribution) Mysore Act 5 of 1960 (her~ inafter referred to as 'the Principal Act') by the Mysore Silkworm Seed and Cocoon (Regulation of Production,. Supply and Distribution) (Amendment) Act, 1969 (hereinafter called as the 'Amending Act').\n\nThe petitioners alleged that their fundamental rights guaranteed by Art. 19(1) (g) of the Constitution have been illegally interfered with G 'by these amendments in so far as the amendments impose additional restrictions upon these rights without having secured the Presidential :sanction required by the proviso to Article 304(b) of the Constitution.\n\nArticle 304 of the Constitution reads as follows :\n\n\"304. Notwithstanding anything in Article 301 or article 303, the Legislature of a State may by law-\n\n( a) impose on goods imported from other States or the\n\nUnion territories any tax to which similar goods manufactured or prodc~ i~ that State arc subject, so, however, as not to discnmmate between goods so imported\n\nA and goods so manufactured or produced ; and\n\n(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest :\n\nProvided that no Bill or amenmcnt for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President\".\n\nIt will be seen that Article 301 of the Constitution provides : c \"Subject to the other provisions of this Part, trade, commerce and intercourse throughollt the territory of Iridia shall be free\".\n\nArticle 302 limits the powers of Parliament to impose \"restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India\", to such restrictions \"as may be required in the public interest\".\n\nRestrictions falling under Art. 304(b) must not only be reasonable but are expressly D required to be in public interest. It is in order to ensure that purposes\n\nof Art. 304(b) are satisfied that a bill in a State Ugislature has to obtain the previous sanction of the President. It is worth-remembering that Art. 255 of the Constitution provides for a retrospective curing of the defect of want of previous sanction by the president so that, where this requirement has been overlooked before an enactment, E public interetit may not suffer by any want of sanction.\n\nThe only question, on merits, which has been argued before us on behalf of the petitioners is : Do the changes introduced by the Amending Act amount to such additional restrictions as to require the sanction of the President even though the Principal Act had received such sanction at the appropriate stage ? The reasonableness of any restrictions, new or old, has not been challenged before us.\n\nAU that is urged is that the additional restrictions introduced by the Amending Act were bound to obtain the previous sanction of the President before they are introduced in. the form of a Bill in the Legislature of a State because that is the Constitutional mandate.\n\nG As the restrictions covered by Article 304(b) have to be those on \"freedom of trade and commerce\", which is a broader and some- . what different concept than that of an individual citizen's freedom to trade and carry on business, guaranteed by Article 19(l)(g), a preliminary objection has been raised, on behalf of the State of Mysore, that no petition under Article 32 of the Constitution can lie to challenge such restrictions as they could not be on rights p:uaran- H teed by Article 19( 1) (g). Reliance was placed on Ram Chandra\n\nPillai & Ors. v. State of Orissa & Ors., ( 1) where there is an observation indicating that the petitioner under Article 32 could not rely upon the guarantee of freedom of inter-State or intra-State trade, embodied in Article 301 of the Constitution. because \" ... it is not a fuHdamentaI\n\n(t) r 10%) s.c.R. 2s. -·--- .'1\n\nright conferred by Part III of the Constitution which can be enforced A by a petition under. Article 32\". That was a case relating to a pre- Constitution enactment so that Article 305 of the Constitution was held to provide a complete answer to the petitioners' claim. We do not think that the mere fact that the legality of an enactment is challenged for non-compliance with the proviso to Article 304(b) of the Constitution would take aw\"ay the character or substance of a peti- B tioner's claim when a citizen comes to Court with the allegation that his fundamental right to carry on business or trade is affected adversely by a provision which does not legally exist. No doubt the restrictions contemplated by Article 304(b) may be of a character different from those on an individual citizen's rights to trade but it cannot be / denied that their impact on individual rights is often very direct. The ' C stage for considering the reasonableness of a direct or indirect restriction of a fundamental right arises only where the restriction is otherwise valid, As this Court has repeatedly .held, restrictions which have no authority or sanction of law to back them would, per se, be bad restrictions. The question of reasonableness of a restriction on indiviaual rights to carry on trade could only arise where the purported law docs not fail on other tests.\n\nLearned Counsel for the petitioners had relied upon the case of Himmatlill. Harilal Mehta v. the State of Madhya Pradesh & Ors.,(') where a reference was made to Mohd. Yasin v. The Town Area Committee Jalalahad & Anr.(2) He also urged, on the strength of District Collector of Hyderabad and Ors. v. M/s. Ibrahim & Co. etc., (3) that Ai ticle 301 of the Constitution guarantees not merely freedom of trade and commerce in the abstract.\n\nIn other words, individuals affected by the violation of the guarantees under Articles 301 and 304 could also complain, at the same time, of infringement of their right guaranteed under Article 19 (l) (g) of the Constitution provided a breacb of the former involves violation of the latter also as it would brdinarily do. Therefore, we overrule the preliminary objection.\n\nThe State of Mysore has tried to justify the want of Presidential sanction to an:iei; dment~ on the ground that tey do, not impose a?d1t1onal restr.1ctI_ons but ar~ covered by the ob1ects and the provisions of the Pnnc1pal Act which had already obtained the Presidential G sanction at the appropriate stage.\n\nIndeed, the amendments, it was urged, merel; i gave an enacted form to what were previously statutory rules \".llli?ly made und.er the. authority conferred by Section 18 of tne Pnnc1pal Act. This Sectmn provides as follows :\n\n\"18. Power of Government to make rules ... ( l) The Government may subject to the condition of previous publication, by notification, make rule to carry out the purposes of this Act. ·\n\n(I) [19541 S.C.R. 1122.\n\n(2) (1952] S.C.R. 572.\n\n(3) (1970] 3 S, C.R .. 498.\n\nA .\n\n(2) In particular and without prejudice to'the generahty of the foregomg power, such rules may provide for- •\n\n(a) the duties and powers of oftkers authorised to enforce the provisions of this Act and the manner of constitution of market committees an'd the powers B ; md duties of such committees;\n\n(b) the qualifications of persons who produce or prepare silkworm seed for rearing of silkworms and other persons to whom licences under this Act may be granted; ,_\n\n(c) the grant of licences and the imposing of conditions in respect of the same and fees for the grant of such 'I licence;\n\n(d) the sanitary arid other conveniences that should be provided for at the production and distribution cen-\n\nA tres of silkworm seed ; D\n\n(e) the grant of duplicate licences and the renewal of\n\nlicences and fees for the same ;\n\n(f) appeals from any order under this Act, the authority to which such appeals shall lie, the time within which such appeals should be made and the procedure for E dealing with such appeals ;\n\n(g) the forms of licences to be granted, returns to be submitted and accounts to be maintained under this Act;\n\n(h) the fee payable by the licensed buyer in respect of\n\nF cocoons purchased by him in the cocoon market, such fee not exceeding two per cent of the purchase price; '\n\n(i) the particulars to be furnished by any person of the occurrence of silkworm disease in silkworm or silkworm seed, and the steps to be taken for the prcven- ' G tion or eradication of such disease;\n\n(j) generally regulating the procedure to be followed in I proceedings nnder this Act;\n\n(k) any other matter which may be prescribed under this Act.\n\n(3) All rules made under this Act shall be laid as soon as may be after they are made before each House. of the State Legislature while it is in session for a total penod of thirty days which may be comprised in on.e session or !n two or more 'essions and if before the expiry of the said\n\nperiqd, either House of the State Legislature makes any modification in any rule or directs that any rule shall not have effect and if the modification or direction is agreed to -\n\n'..,\n\nby the other House, the said rule shall thereafter have effect, A only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously. done under that rule.\"\n\nThe argument before us on behalf of the State is that no amendments falling beyond the purview of the Principal Act and the rules framed thereunder were made, and, therefore, no fresh restrictions could be said to have been introduced by change of form or even of some substance of those restrictions because they were all, in any da.sc, within the purposes of the Principal Act which had already received Presidential sanction. ·\n\nAccording to the State, the Principal Act was introduced principally with the object of improving and maintaining the quality of silk which is manufactured; and, in order to be able to do this, it was submitted, it was necessary to keep a record of all those who breed silkworms in the State of Mysore so that a watch may be kept over the genetic purity of silkworms. It was stated that there is no control over pierced cocoons which become useless for purposes of reeling.\n\nHence, \"cocoon\" is defined in the Act as a product of mulberry silkworms \"either green or stifled, dried or in. any other state or condition, but does not include pierced cocoon\". Anyone wanting to use silk for purposes other than reeling could use pierced cocoons. The \"cocoon market\" is defined in Section 2(b) of the Principal Act as a market established under Section 10 which provides that the Government may, for regulation and distribution of silkworm seed, by notification, specify the places at which cocoon markets, cocoon market yatds, and stores may be located, fix the sericultural areas to be served by each cocoon market where silkworm. cocoon produced by such areas may be sold, and assign zones and markets in which any licenced buyer may carry on his business. It is also provided in Section 10 that all transactions in the cocoon market shall be by vpen auction on payment of cash, Silkworm are defined as mulberry silkworms. Silkworms seeds are defined as cocoons of all kinds (excluding cross-breed cocoons) used or reared for purposes of production. A rearer is a person defined as engaged in rearing silkworms for the production of silkworm c9coons, whether for reproduction or reeling. The preamble of the Act shows that it is intended to consolidate the laws \"providing for the regulation, of the production, supply, and distribution of silkworm seed and cocoon in the State of.\n\nMyso~\".\n\nIt is urged on behalf of the State that the. whole object of this m.acID:nery of .regulation and control of production, supply, and distnbut10n of silkworm seed and cocoons was that, by ensuring the\n\nbig~ standard of puritv and quality of Mysore silk, to promote the business. and trade of the Mysore State in silk products, and, thereby, to contnbute to the growth and freer flow of trade. It is stated by the petitioners themselves that almost 7 per cent of the population of Mysore State is engaged in various processes conncted with the\n\nA rearing of silkworms and reeling of silk . and that over two lakh acres\n\nof land in Mysore State are under mulberry cultivation and mulberry is used exclusively to feed silkworms. The raising and maintenance of the quality of silk was, it was submitted, both in the interests of the trade in silk pr<lducts and in public interest.\n\nIn order to carry out the purposes of the Principal Act, Sections B 3 to 9 had, even before its amendments, laid down as follows :\n\n\"3. Regulation of production, etc., of silkworm seed .... No person shall produce, prepare, store, transport, sell or otherwise distribute or dispose of silkworm seed, except under and in accordance with the terms and conditions of a licence granted under this Act.\n\n4. Regulation of rearing .... (1) No person shall rear silkworms from silkworm seed other than silkworm seed obtained from a person whO holds a licence under this Act.\n\n(2) The Goverrunent may by notification direct that in any specified area no silkworm other than silkworm of specified race shall be reared and that such silkworm shall be reared from silkworm seed obtained from specified sources. On the issue of such notification, no person shall rear in such specified area any other race of silkworm or obtain silkworm sea'cl from any other source. ' E\n\n5. Regulation of possession of silkworm seed ...• No\n\nperson shall be in posses.ion of silkworm seed unless-\n\n( a) he is a rearer; or\n\n(b) he holds a licence granted under this Act; or\n\n( c) he is authorised in writing by the prescribed officer to possess silkworm seed.\n\n6. Regulation of disposal of silkworm cocoons.-No rearer shall dispose of or agree to dispose of or in pursuance of an agreement entered into, make delivery of silkworm cocoons for reeling or for reproduction except to persons holding a licence, qnder this Act.\n\n7. Regulation of sale or purchase of silkworm cocoons for reeling. In any area in which a cocoon market is established under this Act, no rearer shall sell or agree to sell, and no Jiccnced buyer shall purchase or agree to purchase silkworm cocoons, for reeling, except in such cocoon market, and except in accordance with such conditions and in such manner as may be prescribed.\n\n8. Regulation of reeling.-No person shall carry on the business of reeling silkworm cocoons unless he holds a licence granted under this Act.\n\n9. Application for licence.-Every person who desires A to obtain a licence under this Act shall make an application to the Licensing Authority in such form as may be presribed.\"\n\nWe find that, as regards regula, tion of rearing, Sect10n 4(1) is -reframcd by the Amending Act, so that now it reads as follows B\n\nNo person shall engage in the rearing of silkworms for the production of silkworm cocoons except under and in accordance with the terms and conditions of a licence granted under this Act\".\n\nOn behalf of the State, it is pointed out that the amended Section 4(1) does not amplify the restrictions which had to be read with Section 3 of the Principal Act set out above and the detailed provisions of Rules 3, 4, and 5 read with definitions given. After going through these rules, the validity of which was not challenged, we are\n\nsatisfied that no additional restriction is imposed by the Amending Section 4(1).\n\nWe may here indicate the already stringent regulation or restrictions existing under the Principal Act and the rules framed thereunder which were not challenged. Rule 3 ( 1) contained a prohibition against rearing silkworms by any person from silkworm seed other than silkworm seed obtained from a seed preparer licensed under .these rules.\n\nRule 3(2) imposed a duty upon a person who obtains silkworm seed from a licensed seed preparer, to preserve the bill and the egg sheets issued by the licensed seed preparer in respct of the silkworm seed supplied by such seed preparer, so that, when so required by an officer, it could be produced before him.\n\nRule 4 (1) prescribed the application form for licensing to be filled in and submitted by Rearers and seed preparers.\n\nRule 5 provided for the grant of various licences after satisfying the licensing authorities of the qualifications of the applieant. It also enable the licensing authority to refuse licenses to limit the number of seed preparers in an area. The reason for the refusal of the grant of the licence by the licensing authority had to be communicated fo the unsuccessful applicant. Buying of cocoons for reeling had to be licensed. Section 8 read with Rule 5 (b) lays down that no person could carry on \"the business of reeling silkworm cocoons\" without a license. Section 6, set out above, prohibited disposals and deliveries of silkworm cocoons for reeling and for reproduction except to persons holding licences under the Act.\n\nSection 7 prohibited, in cocoon market areas, the rears of silkworm cocoons from selling oragreeing to sell and licensed buyers from purchasing or agreeing to purchase silkworm cocoon for reeling except in the cocoon market of the area. It is difficult for us to see how the mere change of wording in Section 4(1) of the Act had really amplified or increased the restrictions already there.\n\nSection 4 of the Amending Act amends Section 6 of the Principal Act by omittjn~ words : \"for reeling or for reproduction.\" Section 5 of the Amending Act says :\n\n5. \"Substitution of new section for section 7.-For section 7 of the Principal Act, the following section shall be substituted, namely :-\n\n\"7. Regulation of sale or purchase of silkworm cocoons for reeling .. (1) In any area in which a cocoon market is established under this Act,-\n\n( a) no rearer shall sell or agree to sell; and\n\n(b) no person shall purchase or agree to purchase, silkworm cocoons except in such cocoon market and except in accordance with such conditions and in s, Uch manner as may be prescribed.\n\n(2) After a cocoon market is established for any area, no person shall except in such cocoon market, use or permit the use or assist in the use of, any building, room, tent, enclosure, vehicle. vassel or place in such area for the sale or purchase of silkworm cocoons or in any manner aid or abet the sale or purchase of silkworm cocoons\".\n\nHere also we are unable to find any substance. in the grievance that there has been any significant increase in' restrictions. The new Section 7 (2) merely makes evasion of the requirement to conduct business in the cocoon market of an area more difficult.\n\nE The only amendments complained of are those in Section 12 which,\n\nin the Principal Act, read as follows :-\n\n\"12. Penalties.-(!) Any person who contravenes the provisions of Section 3 or 4 shall be punishable with fine which may extend to one hundred rupees.\n\n(2) Any rearer who contravenes the provisions of Section 6 or 7 or any other provision of this Act or any rule, order or notification made thereunder, shall be punishable with fine which may extend to fifty rupees.\n\n(3) Any licensed buyer who contravenes the provisions of Section 7 or 8 or apy other provision of this Act or any rule, order or notification made thereunder, shall be punishable with fine which may extend to two hundred and fift)' rupees.\n\n(4) Save as otherwise provided in sub-section (1), (2) and ( 3), any person who contravenes any of the provisions of this Act or of any rule, order or notification thereunder, shall be punishable with fine which may extend to two hundred and fifty rupees.\n\n(5) (a) Without prejudice to any punishment under the preceeding sub-sections, the Director of Sericulture in Mysore may, after giving a reasonable opportunity to tbe person concerned to be heard, suspend or cancel the licence granted to any person for rearing\n\nsilkworm seed if such person is convicted at le, a, st twice for an offence under this Act.\n\n(b) Any per$on aggrieved by the suspension or cancellation of a licence under clause (a) may appeal to the Government within such time as may be prescribed and the. decision of the Government on such appeal shall be final and shall not be called in question in any Court of law''.\n\nSection 7 of the Amending Act lays down :\n\n\"7. Amendment of Section 12.\n\nIn Section 12 of the Principle Act,-\n\n( I ) in sub-section (I), for the words \"one hundred rupees\", the words \"two hundred rupees\" shall be substituted ;\n\n(2) in sub-section (2), for the words and figures \"section 6 or 7 or any other provision of this Act or any rule, D order or notification made thereunder\", the words, 'figures, brackets and Jetter. \"section 6 or clause (a) of sub-section ( 1) of section 7\" shall be substituted;\n\n(3) after sub-section (2), the following sub-section shall be inserted, namely :-\n\n(2A) Any person who contravenes the provisions of clause\n\n(b) of sub-section (1) of section 7 or sub-section\n\n(2) of that section shall be punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees or with both\" ;\n\n( 4) for sub-section ( 3), the following sub-section shall be substituted, namely :-\n\n\"(3r Any person who contravenes the provisions of section 8 shall be punishable with fine which may extend to two hundred and fifty rupees\" ;\n\n( 5) in sub-section ( 4), for the words, brackets and figures \"sub-sections (1), (2) and (3)\", the words brackets figures and letter \"sub-sections (I), (2), (2A) and 3 sha!1 be substituted''.\n\nSection 8 of the Amending Act provides as :\n\n8. Insertion of new section 12A and 12B.--After Sec- H tion 12 of the Principal Act, the following sections shall be inserted, namely :- _\n\n12A. Abetment.-Whoever abets any offence punishable under this Act shall be punished with the punish ment provided in this Act for such offence.\n\n12B. Certain offences to under sub-section cognizable\".\n\nbe cognizable.-The (2A) of section 12 offences shall be\n\nft was contended that the increase in the penalties would, in any event. be additional restrictions.\n\nLearned Counsel for the State re- B plied that penalties are merely sanctions .provided for enforcing restrictions and are not a, dditional restrictions on freedom of trade or commerce. It is true that, even without a change in the nature of violations punished, those who contravene the provisions of the Act are subjected to somewhat severer punishment. But, the increase in the penalties is such, in view of the change in the value of money, C as not to amount to an appreciable increase in restriction even from the point of view of a person who wants to break the restrictive laws.\n\nPenalties are really part of the procedure for the enforcement of restrictions. They do not create new offences.\n\nThey only make violation of whatever restrictions on trade and commerce were there more onerous. We therefore, doubt very much whether they could re; iUy be loakcd upon as additional restrictions upon freedom of trade D and commerce.\n\nWe may now refer to the cases cited by learned Counsel.\n\nIn Atiabari Tea Co. Lid. V. the State of Assam & Ors.,(') this Court held the Assam Taxation (on goods carried by Roads and Inland Watcrwa, ys) Act, 1954, to be void for not having secured the Presidential sanction under the proviso to Art. 304(b) before it was introduced in the form of a bill in the State Legislature.\n\nIn the case before us, tl1e Principal Act had the sanction of the President and enables orders to be passed which had the force of law enabling restrictions to be imposed by rules covered by the purposes of the Act.\n\nWe have already cited Section 18 of the Principa, l Act to show the amplitude of the rule making power which had the required Presidential sanction.\n\nAnd, we have found that the amendments before us only varied the form of restrictiveness without appreciably adding to its content.\n\nThis case has, therefore, no application to the situa, tion before us.\n\nThe Automobile Transport (Rajasthan) Ltd. V. the State of Rajasthan & Ors. ( 2), was relied upon by both sides for the distinction G between mere \" regulation\" and a restriction contemplated by Article\n\n304 (b) of the Constitution. It was held here that taxation of Motor Vehicles was a compensatory measure incidental to transport by Motor Vehicles which die! not infringe the guarantee of freedom of trade and commerce conferred by Art. 301 of the Constitution. The effect of such taxation was held to be too remote in its effect upon freedom , of trade and commerce to be a restriction contemplated by it.\n\nSubba H Rao., J., who agreed with the conclusions of three other learned Judges of this Court so as to form a majority said that the nature and extent of taxation would have to be carefully scrutinized to determine whether it amounted to mere regulation or restriction.\n\nHe observed (at p. 557) :\n\n(I) [1961] l S.C.R. 809.\n\n(2) [1963) I S.C.R. 471.\n\n./.\n\n\"Of all the doctrines evolved, in my view, the doctrine of 'direct and immediate effect' on the freedom would be , a, reasonable solvent to the difficult situation that might arise under our Constitution. If a law, whatever may have been its source, directly and immediately affects the free movement of trade, it would be restriction on the sa, id freedom\".\n\nSubba Rao, .J., summarised the whole law by formulating the following propositions (at p. 564-565) :\n\n\"(1) Art. 301 declares a right of free movement of trade without any obstructions by way of barriers, interstate, or intra-St; i.te or other impediments operating as such barriers.\n\n(2) The said freedom is not impeded, but, on the other hand, promoted, by regulations creating conditions for the free movement of trade, such as, police regulations, provision for services, maiiiienance of roads, provision for aerodromes, Wharfs, etc., with or without compensation\n\n(3) Parliament may by law impose restrictions on such freedom in the public interest ; and the said law can be made by virtue of any entry with respect where-of Parliament has power to m.:i, ke a law: ( 4) The State also, in exercise of its legislative power, may iinpose similar restrictions, subject to the two conditions laid down in Art. 304(b) and subject to the proviso mentioned therein.\n\n(5) Neither Parliament nor the State Legislature can make a law giving preference to one State over another or making discrimination between one State and another, by virtue of ariy entry in the Lists, infringing the said freedom. ( 6) This ban is lifted in the case of Parliament for the purpose of dealing with situations arising out of scarcity of goods in any part of the territory of India and also in the case of a State under Article 304(b), subject to the conditions mentioned therein. And (7) the State can impose a non-discriminatory trut on goods imported from other States or the Union territory to which sintilar goods manufactured or produced in that State are subject\".\n\nIn Khyerbari Tea Co. Lid. & Anr. V. The State of Assam, (1) the Assam Taxation (on goods carried by Road or on Inland Water ways) Act (Assam Act X of 1961), was held to be valid. It was pointed out here by Gajendragadkar, J., that, whereas, the ratio of the majority decision in the Automobile Transport (Rajasthan) case (supra) was that compensatory trui:ation would be outside Article 301, and, therefore, of Article 304(b) of the Constitution, in Atiabari Tea Co's case (supra), the Court had adopted the view that the compensatory character of a tax may be taken into account in deciding whether i.t was a restriction under Article 304(b) which was reasonable and in public interest. In Khyerbari Tea Co's case (supra), the Court proceeding on the assumption that the tax was not compensatory upheld its validity, presumably because it was considered reasonable and in public interest as a restriction.\n\nNo such question of reasonableness of any restriction imposed by the Amending Act before us\n\n(1) [1964] 5 S.C.R .. 975.\n\nA has been raised by the petitioners. But, if the position of even taxation, from the point of view of \"restrictions\" contemplated by Article 304(b) of the Constitution could be doubtful and depended upon its nature and extent and purpose, we think that there could be no doubt that some additional licensing, at nominal fees cha, rged presumably to defray the expenses of carrying out the objec!l> of the Act, B could not be held to be anything more than\"regulation\" in the cases before us.\n\nThe question of regulatory character or otherwise of amending provisions arisen only in the course of discussion of the question whether any new provisions, possibly resulting in requiring some more persons to take out licenses, who may not have been previously c covered by provisions relating to licensing, would be a \"restriction\"\n\nas contemplated by Aritcle 304 (b). The learned Additional Solicitor General has contended that such licensing is necessary even for simply maintaining a record of those who carry on various activities in con nection with the silk production industry and business so that their purely business and industrial activities may be watched and the quality and reputation of this industry D and trade of Mysore may be maintained.\n\nSuch \"regulation\", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some inconvenience to those who have to take out license , which, according to rules, were granted to all those found qualified.\n\nWe find consider, a, ble weight in these arguments.\n\nIn any case, we are not satisfied that there has been a -real increase E in restricticas upon commerce in silkworms and cocoons by the provisions of the Amending Act wllich mostly cover what was already laid down by the statutory rules. If the substance of statutory rllles is converted into statutory provisions there could hardly be said to be an addition even in \"regulation\" imposed by the amending law.\n\nF Lea, rned Counsel for the petitioner cited Hughes and Vale Proprietary Ltd. v. State of New South Wales & Ors. ( 1), where provisions of the State Transport (Co-ordination) Act, of the State of New South Wales, requiring applications to be made for licences, which may be granted or refused by an official in the exercise of an uncontrolled discretion, and of .all provisions consequential thereto, in so far as they were sought to be applied to public Motor Vehicles operating G in the course of or for the purposes of inter-State trade, were held to be invalid for a contravention of Section 92 of the Constitution of Commonwealth of Australia.\n\nThis section, as we know, provides that \"trade, commerce and inter-course, among States whether by means of internal carriage or inotor navigation shall be absolutely\n\nfree\".\n\nHere, the Privy Council discussed a large number of cases which had a bearing on the interpretation of Section 92 of the Austra- H lian Constitution, including Commonwealth of Australia v. Bank of New South Wales (2) case, where it was observed at page 311) :\n\n\"Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that\n\n(I) [19551 A.C. 241.\n\n(2) [19501 A.C. 235,31 l.\n\n.( .\n\n' •\n\n\" •\n\nju regard to some economic activjties .and at sQllle, stage. of. soc\\3,1 development :it might be maintained 1ht prohibition . with a view to State monopoly was the only. practical and\n\n1reasonable manner of regulation, and that inter-State trade; commerce .and intercom:se thus .prohibited: and .thus'. monoplized remained b>olutely free\".\n\nThe l'rivy Council after quoting this passage said :\n\n\"As to the passage in the judgment of the Board in the Bank case upon which counsel for the respondents , particularly relied, their Lordships accept without quiilifica-. tion everything that W1a,\"> said by the Board in the Bank case, but they are not aware of any circumstances ill' 'the present case giving rise to the situation contemplated in that passage\".\n\nThus, even if we were to apply the test of regulation to distinguish it from restriction which may be deduced from Hughes' case (supra?~ it will be seen that a decision on it depends upon the circumstances to which a legislative measure is meant to apply and its consequences.\n\nJn the case before us, the amendments did. not, in our opinion, go D beyond a regulation which. was fully authorised by the language of the provisvns of the Principal Act.\n\nEven any a, dditional licensing involved did not go beyond the purview of the provisions of the Principal Act and by the rules framed thereunder. The mere change in form, from statutory rules to statutory provisions, could hardly constitute even additional \"regulation\". lt is only an additional \"restriction\" from the special point of view of Article 304(b) which E requires Presidentiiil sanction.\n\nAlthough, a petition under Article 32 alleging infringement of the fundamental right guaranteed under Article 19 (I) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19 ( 6) of the Con- F stitution, has been established.\n\nNow, as we have mentioned earlier, learned Counsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us.\n\nThey rested their case solely on the want of Presidential sanction to additional \"restrictions\" on freedom of business, trade, and commerce\n\n\\Vhich arc not, as we have indicated ear Her, to be equated with a mere reduction of the area of freedom of choice of those who are cn1:aged G or who want to engage in a business or trade.\n\nThe passage cited in Huohes' case (supra), from the Bank of New South Wales case\n\n(supra\") makes that clear. In ot?er wors, an allegedly additional restriction on trade and commerce is to be Judged from a broader and more general angle of the freedom of .~ pa:ticular rade.\n\nWht 1:1~Y be a restriction 'of his choice, from the pomt of view of an md1v1dual citizen engaged in a trade, may not be a restriction on inter-State H or intra-State commerce viewed from the angle ol the trade as a whole.\n\nEven if we could not as we did not, .find any additional restrictions on the silkworm and' silk production business and industry in the 'amendments, the petitioners could show that thy were ui:duly am\n\npered by the impugned aniepdments from carrymg on their busme~ .\n\n10 SC/75-32\n\nA or trade by some unreasonable restrictions on their fundamental rights as individuals engaged in silk production industry or business.\n\nBut, if that .was their grieva, nce, they had to demonstrate an unreasonableness of restrictions upon their activities falling outside Article 19(6) before they could succeed.\n\nThey have not even attempted to do that. It is evident that they could not do so because the licensing B fees for various activities to be licensed is quite nominal and they have not been denied any licences they wanted.\n\nConsequently, we dismiss these petitions with costs.\n\nC.M.P. No. 1929 of 1975 (in Writ Petition No. 137 of 1971) is also dismissed as not pressed.\n\nPetitions dismissed\n\nP.H.P.", "total_entities": 110, "entities": [{"text": "SYED AHMED AGA ETC", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "SYED AHMED AGA ETC", "offset_not_found": false}}, {"text": "STATE OF MYSORE & ANOTHER", "label": "RESPONDENT", "start_char": 21, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE & ANOTHER", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 62, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "M. H. 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{"document_id": "1975_1_489_490_EN", "year": 1975, "text": ",..,:\n\nNADIR KHAN\n\nTHE STATE (DELHI ADMINISTRATION)\n\nJune 3, 1975\n\n(P. K. GOSWAMI, VACATION JUDGE]\n\nCode of Criminal Procedure, (Al of 1974)-s. 401, scope of\n\nThe petitioner. was convicted under s. 61 (a) of the Punjab Excise Act' and sentenced to two months' rigorous imprisonment. Revision application to the Sessions Judge Jiaviog; failed, he moved the High Court under s. 482, Cr. P.C.\n\n1973 (II of 1974) read with Art. 227 of the Constitution. Imokiog its revisional jurisdictiOn suo lnotu the High Court issued a rule for enhancement of the sentence and raised it to six months. In application for special leave •. the C petitioner contended that the High Court, in revision s. 401, Cr. P.C. had no jurisdiction or power to enhance the sentence in the absence of an appeal by the Stale under s. 337 Cr. P.C.\n\nDismissing the petition',\n\nHELD ; The High Court, as an effective instl'u1nent for administration ot criminal justice, keeps a constant vigil and wherever it finds that justice hus Q suffered, it takes upon itself as its bounden duty to suo niotu act where there is. flagrant abuse of the law. The character of _the offence and the nature. of_ disposal of a particular case by the subordinate court prompt remedial ac.tion\n\non the part of the lligh Court for the ultin1ate social good of the conununity, even though the State may be slow or silent in preferring an appeal provided for under the new Code. In a given case of public importance, the High Court reacts to public concern over the problem <ind n1ay act suo nlotu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such Et offenders. This salutary power which existed in the old Code has not been denied by Parliament under the new Code.\n\n[490CFJ\n\nCRIMINAL APPELLATE JURISDICTION : Criminal S.L.P; No. 554 of 1975.\n\nFrom the judgment and order dated the 21st April, 1975 of the Delhi High Court in Cr!. Misc. (Main) No. 79 of 1975.\n\nK. N. Clzitkara and E. C. Aganvala, for the petitioner.\n\nThe order of the Court was passed by\n\nGOSWAMI J.-1 am reluctant to leave this matter with the usual monomial order since the submission of the learned counsel has sought to cast an unmerited doubt on the undoubted jurisdiction of the High Court in acting suo motu in criminal revision in appropriate cases.\n\nThe attempt has to b~ nipped in the bud. ·\n\n; Jn this' case, the petitioner was found in illegal possession of ganja weighing 7 kgs. a, nd was convicted by the Metropolitan Magistrate, Delhi, under s. 6!(a) of the Punjab Excise Act as extended to Delhi arid sentenced to two months' rigorous imprisonment.\n\nWith H no right of appeal available, there was an unsuccessful revision applica\n\nlion before the Additional Sessions Judge, Delhi.\n\nThe petitioner then moved the Delhi High Court under s. 482 of the Code of Criminal Procedure, 1973 (Act II of 1974) read with Art. 227 of the Constition against the conviction.\n\nThis time he was worse off as the Hinh Court thought that the sentence awarded was inadequa, te and by i~-\n\nSUPREME COURT REPORTS [1975] SUPP s.c.R.\n\nA invoking its revisional jurisdiction issued, sou moru, a rule for enhancement of the sentence and ultimately raised the sentence to six months.\n\nHence this special leave petition.\n\nThe question raised by the learned counsel in this application is, that the High Court, in revision under s. 401 Cr. P.C., has no jurisdic- B tion or power to enhance the sentence in the absence of an appeal\n\naga, inst the inadequacy of sentence under s. 3 77 .\n\n. It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party.\n\nThe High Court, as an effective ' instrument for administration of criminal justice, keeps a constant vigil c and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is fiagr'ant abuse of the ; law.\n\nThe character of the offence and the nu.lure of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code.\n\nThe High Court in a given case of D public importance e.g. is now too familiar cases of food adulteration reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders.\n\nThis position was true and extant in the old. Code of 1898 and this salutary power has not been denied by Parliament . under the new Code by re-arrangement of the sections.\n\nE It is true the new Code bas expressly given a right to the State under s. 377 Cr. P.C. to appe_a, l against inadequacy of sentence which was not there under the old Code.\n\nThat however docs not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases.\n\nWhat is an appropriate case has to be left to the discretion of the High Court.\n\nThis Court will F be slow to interfere with exercise of such discretion under Art. 136 of the Constitution.\n\nS. 401 expressly preserves the power of the High Court, by itse][ ,,. to ell).! for the records without the intervention of another agency and\n\nha~ kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court.\n\nThe provisions under s. 401 read with s. 386(c)(iii) Cr. P.C. are clearly supplemental to G those under s. 3 77 whereby appeals are provided , for against in_a, dequacy of sentence at the instance of the State Government or Central Government, as the case may be.\n\nThere is therefore. -absolutely no merit in the contention of the learned counsel that the High Conrt acted without jurisdiction in cxcrcisin~ the power of revision, suo mot11, for enhancement of the sentence in this case.\n\nThe application stands H rejected.\n\nP.B.R.\n\nPetition dismissed.", "total_entities": 22, "entities": [{"text": "NADIR KHAN", "label": "PETITIONER", "start_char": 7, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "NADIR KHAN", "offset_not_found": false}}, {"text": "THE STATE (DELHI ADMINISTRATION", "label": "RESPONDENT", "start_char": 19, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "THE STATE (DELHI ADMINISTRATION)", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 68, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 100, "end_char": 126, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 401", "label": "PROVISION", "start_char": 141, "end_char": 147, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 61", "label": "PROVISION", "start_char": 195, "end_char": 200, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 482", "label": "PROVISION", "start_char": 373, "end_char": 379, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 419, "end_char": 427, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 401", "label": "PROVISION", "start_char": 681, "end_char": 687, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 337", "label": "PROVISION", "start_char": 798, "end_char": 804, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2510, "end_char": 2514, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 482", "label": "PROVISION", "start_char": 2804, "end_char": 2810, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 2818, "end_char": 2850, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 2878, "end_char": 2886, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "s. 401", "label": "PROVISION", "start_char": 3369, "end_char": 3375, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3515, "end_char": 3519, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "s. 377", "label": "PROVISION", "start_char": 4796, "end_char": 4802, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 5195, "end_char": 5203, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 401", "label": "PROVISION", "start_char": 5226, "end_char": 5232, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 401", "label": "PROVISION", "start_char": 5508, "end_char": 5514, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 386(c)(iii)", "label": "PROVISION", "start_char": 5525, "end_char": 5539, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5591, "end_char": 5595, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_1_52_57_EN", "year": 1975, "text": "DINANATII PANSARI\n\nCOLLECTOR & D. M. KEONJHAR & ANR.\n\nApril 1, 1975\n\n[H. R. KHANNA AND M. ff.BEG, JJ.]\n\nMaintenance of Internal Security Act, 1971, Section 3(1) (a) (iii)--Order of detention under-Two views possible on the need of detain-Court if can Interfere with subjective assessment and satisfaction.\n\nThe order of detention dated 6-7-1974 passed by the District Magistrate of Keonjhar, Orissa, recited that the District Magistrate was satisfied -that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential to the com munity, it is necessary to make the order under Section 3 read with Section 5 of the Maintenance of Internal Security Act.\n\nThe first ground related to sale by him of two tyres without authority and cash memo.\n\nThe second ground related to the disposal of the 140 out of 149 tyres in contravention of law.\n\nDismissing the Writ Petition, challenging the detention and also the Special Leave Petition directed against the order of the Orissa High Court,\n\nHELD : (i) As the Manager of the United Commercial Company, the petitioner was certainly not a licensed dealer. The 149 tyres had been ob tained by the company for actual use on the trucks but most of them had, appa ·\n\nrently, been disposed of in what is known, as the 'black market'. The pro visions relating to licensed dealers didnot warrant such sales which were struck by the provisions of clause 2 of the Orissa Automobile Tyres and Tubes Control Order, 1973. The petitioner had not been detained for any irregulaf'ity or illegality committed as a licensed d_ea1er, but as a person who seemed to have been diverting tyres from their pretended use, to sales in \"black market\". He was unable to repel the allegation regarding the sale of two tyres.\n\n[55F; 56A]\n\nF Debu Mahto v. State of West Bengal, A.I.R. 1974, S.C. 816 and Messrs\n\nPusparaj & Co. and Ors. v. Collector of Balasore & Ors. I.LR. [1972] Cuttack, 747, referred to.\n\n(ii) It cannot be said that the impugned detention order is either arbitrary or not connected with the purpose for which a detention may be ordered under s. 3(l)(a)(iii) of the Act In considering the legality of such an order, this Couq cannot. function as a Court of Appeal, If there is any material to justify the passing of the detention order the necessity for it iS a matter of subjective assessment and satisfaction by the detaining authority with which no Court would be ordinarily justified in interfering.\n\nThis Court would not interfere even if two views about the existence of the need to detain for the object set out in section 3(1)(a)(iii) of the Act were possible. It is only when the order is shown to be of such a nature that it could not sibly fall within the scope of the law conferring the power to make it that this Court would intervene to quash it.\n\n[56H; 57 AB]\n\nH ORIGINAL JURISDICTION: Writ Petition No. 39 of 1975.\n\nPetition under Art. 3 2 of the Constitution of India and Special Leave Petition No. 267 of 1975.\n\nFrom the judgment and order dated 15-1-75, of the Orissa High Court in C.J.C. No. 1133/74.\n\nA. K. Sen, B. P. Maheshwari, Suresh Sethi and R. K. Maheshwari, A for the petitioner (In W. P. No. 39/75).\n\n Bishen Narain, B. P. Maheshwari, Suresh Sethi and ·. R. K.\n\nMaheshwari, for the petitioner, (In S. L. P. 267/75).\n\nGobind Das and B. Parthasarthy, for the respondents (In W. P.\n\nB No. 39/75).\n\nThe Judgment of the Court was delivered by :\n\n BEG, J.-This habeas corpus petition is directed against a detention order dated 6-7-1974 passed by the District Magistrate of Keon- jhar in Orissa. The order recites that the District Magistrate was C statisfied that \"with a view to preventing Shri Dinanath Pansari s/o Shri Dwarikanath Pansari of Barbil town, P. S. Barbil, District Keonjhar from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary to make\" the order under Section 3 read with Section 5 of the Maintenance. of Internal Security Act, 1971 '(hereinafter referred to as 'the D Act') . On the same date, grounds of this satisfaction were communicated to the petitioner giving the following particulars ;\n\n\"1. On 15-2-1974 you received Automobile (Truck) tyres from Madras Rubber Factory through Carry Co. at Barbil as Manager of United Co=ercial Company, Barbil and these tyres were specified to be used in the fleet of trucks Ill owned by United Co=ercial Co. as a fleet owner. But instead of using the tyres in the fleet of United Commercial Co. you sold two of those tyres the same day (15-2-1974) to one Narayan Singh at Rs. 5400 without authority and cash memo. On this issue Barbil P .S. case No. 32 dated 15-2-1974 u/s. 7 E. C. Act was registered F and charge-sheeted against you.\n\n2. You, as Manager of the United Commercial Co. received 149 truck tyres (137-through Tata Nagar Transport Corporation, Barbil and 12 through Ca, rry Co. Barbil) beteen 14-2-1974 and 27-4-1974 as a fleet owner for use m a fleet of ~O true~ maintained by you. During enquiry G by the Special MagIStrate, Barbil only six number of tyres ere found !n your company's Godown and your office mcharge Shn Shamasunder Pandit stated these six tyres to be tJ, ie only stock in hand. On verification of 8 trucks belonging to your fleet on 19-5,1974 it was found that only 3 tyres fitted to these trucks were new arid the rest of te tyfes were either too old or resoled or damaged ones.fl This reveals that you. have disposed of tyres received H as a eet owner otherwise m contravention of law\n\nBy the i1; bove acts of yours the maintenance of supplies and services of essential commodities namely Automob'l tyres have been dislocated\". . i e\n\nA The petitioner alleges that he is a Jaw-abiding citizen who, after completing his studies in 1966, started a business under the name and style. of M/s. Nancy Automobiles, Rourkela, in Orissa, to deal in auto. car parts, which he carried on until about the end of 1972; and, thereafter, he became a Director of a private Transport CompaJ1Y1.\n\nSoon afterwards, in 1972, he started business under the name of B Vivek Automobiles in Barbi! in .the District of Keonjhar. He adnrits that he is \"the Sole Proprietor of the said business\" and \"was engaged. in the purchase and sale of automobile spare parts, tyres 'and tubes\".\n\nHe asserts that he is. a registered dealer under ihe Orissa Automobile Tyres and Tubes Control Order, 1973. He alleges that the Central Govt. has not fixed the selling prices of tyres and tubes at any ti!lle. He states that, although originally the Control order covered only 50 C per cent of the tyres and tubes received by a licensee, subsequentlya total restriction was imposed upon dealings in these goods which had been declared esseniial commodities. But, he claimed that, on 18-12-1973, the Controller of Supplies had issued an order permit7 ting free sales by licence holders to the extenL of 25 per cent of their stocks. He alleges that, roundabout January, 1974, the District Magisc I> tra, te of Keonjhar held a meeting at which he insisted that 25 per cept of tyres and tubes available for free sale by the licensed dealers 'be sold only for use on vehicles registered in Keonjhar on which tax had been paid under the Bihar and Orissa Motor Vehicles Taxation Act, . and then issued a circular letter to dealers directing that this be. done by them. The petitioner states that he vehemently protested against E the District Magistrate's instructions which were inv.alid under the law. He also asserts that he objected to the formation of an allotment committee by the District Magistra'le for . the purpose of distributing tyres and tubes in the District with the result that the District Magistrate was displeased with the petitioner.\n\nF The petitioner also alleges that, in Barbi!, which is a mining area, there is considerable transport business and that truck owners in that District had formed an Association called \"The Barbi! Mining Area Truck Owners' Association\". He asserts that he has always resisted the illegal demands of truck owners. The petitioner goes on to state that his sister, Smt. Sarda Devi of Chakradharpur, Distt. Singhbum, in Bihar started a transport business at Barbi! in 1970, under the G name of ''United Commercial Company\" (hereinafter referred to as 'the Company') which had a fleet of ten vehicles. According to the petitioner, this Company's competition with the truck owners deprived them of big contracts and thus he incurred their displeasure. He states that, while the Truck Owners' Association wanted to raise the rates of freight, the rates of the company were not raised and that this further displeased the truck owners' Association. He suggests H that the District Magistrate wanted to please the truck owners. ..\n\n The petitioner does not state his own position in or connection with the United Commercial Company, but, his assertions show, on the one hand that he was assdciated with this Company as its Manager, as stated in the grounds of th~ oder of detention, and, on te other hand, that he was anxious to 1ust1fy sales of tyres to the public A\n\n• ~\n\n' ' •\n\nat any priCe which was no -part of the business of this company. Such A sales could be made by him in another capacity and only according to the provisions. of the relevant Control Order. According to the opposite parties prices were also controlled.\n\nThe petitioner has tried hard to prove the malafides of the Dis- B trict Magistrate in passing the detention order. But, he has failed to discharge the difficult burden of doing that.\n\nIt has been urged on behal! of the petitioner that even if the total quantity of 149 tyres shown to have been purchased directly from the manufacturers by the petitioner as a Manager of the United Com- C mercial Company, between 14-2-1974 and 27-4-1974, specifically for the use of the fleet of ten trucks maintained by the company had not been fully utilised for the fleet b)lt had been mostly sold clandestinely by the petitioner, as was \"inferred by the District Magistrate from the failure of the petitioner to account for more than 21 out of 149 tyres, yet, this activity of the petitioner could not reasonably lead D to the inference that it was necessary to detain the petitioner for the purpose of maintaining the supplies of the essential commodity in future. Reliance was placed upon Debu Mahto v. State of West Bengal('), the factsof which have little connection with the facts of the case of the petitioner who mnst have appeared tel the detaining authorities to be using his dual capacity, one as a licensed dealer of E tyres_ and tubes and another as the Manager of the United Commercial Company, as a cover for systematic concealed illegal sales at exorbitant prices.\n\nAs the Manager of the United Commercial Company the petitioner was certainly not a licensed dealer. The 149 tyres' had been obtained by the company for actual use on the trucks but most of\n\nfr.em had, apparently, been disposed of in what is known as the \"black market\". The. provisions relating to licensed dealers did not warrant such sale~ which were struck by the provisions of clause 2 of the Orissa Automobile Tyres and Tubes Control Order, 1973. This provides as follows :\n\n\"2. Licensing of de_alers.-(1) No person shall obtain, atte!!1pt to obtam, or store for sale or distribution or offer for. sle or sell autoobile tyres and tubes except under\n\na_nd m _accordance . with the terms and conditions of a license issued m this behalf by the Licensing Authority.\n\n(2) Every dealer who is doing business on the commence e t off thehorder shall apply for the Licence within fifteen ayns o sue commencement\".\n\n(1) AIR 1974 SC 816\n\n10 SC/75-5 .\n\nThe petitioner had not been detained for any irregularity or illegality committed as a licensed dealer, but as a person who seemed to have been diverting tyres from their pretended use, for which a large stt>ck of tyres had been obtained directly from manufacturers, to sales in what is known as the \"black market\" as a regular side occupation. He was unable to repel the allegation that such a transaction with one Narayan Singh had been detected. He put forward what did not appear to be an honest plea-that he had loaned two tyres to Narayan Singh who had deposited Rs. 5,000/- as security. However, it is not for this Court to pronounce on possible inferences from evidence for or against the petitioner. It is for the detaining authorities to satisfy themselves about these matters and about the need to order the preventive detention and its duration. The Advisory Board had also endorsed the C action of the detaining authorities.\n\nIt was submitted on behalf of the petitioner that, after a direction given on 19-8-1974 by the Collector, Keonjhar, to the tyre manufacturing Companies not to supply tyres to the company as an owner of D a fleet of trucks, the sources of supplies of tyres were dried up and there could be no necessity to detain the petitioner. We were referred to (Messrs) Pusparaj & Co. and Ors. v. Collector of Balasore & Ors.( 1) to show that such a direction was not legal. If that is so, the petitioner can obtain relief against the direction by appropriate proceedings. We cannot pronounce here upon its legality.\n\nThe question whether the petitioner had satisfactorily accounted for the 149 tyres purchased from manufacturers from 14-2-1974 to 27-4-1974 was also one of fact. If the petitioner's case was that' all the 149 tyres had been actually used in this period on the ten trucks, as he would like to make out, he was in the best position to prove this fact. He could not take shelter behind the plea that the detaining authorities did not ask the manufacturers to give the numbers of tyres sold by them to the United Commercial Company when the petitioner, called upon to explain what had happened to the 149 tyres, could not himself give their numbers or show that he had them all fitted on to his trucks, or that he had to discard so many tyres in G this period. No stock of discarded tyres was evidently shewn by the petitioner to the Magistrate who came to his premises to inquire into actual facts. However, such questions of sufficiency of evidence are not for this Court at all to determine. We mention them only as an attempt was made to raise them before us.\n\nH We are nnable to hold that the impugned detention order against the petitioner is either arbitrary or not connected with the purposes for which a detention may be ordered l!nder Section 3(1) (a) (iii) of the Act. In considering the legality of such an order we cannot function as a Court of Appeal. If there is any material to justify the passing of the detention order the necessity for it is a matter of subjective\n\n(1) !LR (1972] Cuttacli. 74.\n\nassessment and satisfaction by the detaining authority with which no A Court would be ordinarily justifie<l in interfering. It is only when the order is shown to be of such a nature that it could not possibly fall within the scope of the law conferring the power to make it that this Court would interyene to quash it. A reference to ( M es.rrs) Pushparaj & Co. v. Collector of Balasore & Ors: (supra), itself shows that the 8 need to take drastic steps f()r maintaining the supplies of an essential commodity, which had become scarce, was there in Orissa. This Court would not interfere even if two views about the existence of the need to detain for theobject set out in Section 3(l)(a) (iii) of the Act were possible. It was for the detaining authorities to determine the duration of the need to detain the petitioner provided they comply with C the provisions of law whenever they do so. We are unable to find any legal flaw in the proceedings which resulted in the impugned detention order of 6-7-1974. '' ·\n\nConsequently, we dismiss this petition.\n\nV.M.K.\n\nPetition dismissed.", "total_entities": 22, "entities": [{"text": "DINANATII PANSARI", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "DINANATH PANSARI", "offset_not_found": false}}, {"text": "COLLECTOR & D. M. KEONJHAR & ANR", "label": "RESPONDENT", "start_char": 19, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "COLLECTOR & D. M. KEONJHAR & ANR", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 70, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "M. ff.BEG, JJ.", "label": "JUDGE", "start_char": 87, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 104, "end_char": 146, "source": "regex", "metadata": {}}, {"text": "Section 3(1)", "label": "PROVISION", "start_char": 148, "end_char": 160, "source": "regex", "metadata": {"linked_statute_text": "Maintenance of Internal Security Act, 1971", "statute": "Maintenance of Internal Security Act, 1971"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 649, "end_char": 658, "source": "regex", "metadata": {"linked_statute_text": "Maintenance of Internal Security Act, 1971", "statute": "Maintenance of Internal Security Act, 1971"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 669, "end_char": 678, "source": "regex", "metadata": {"linked_statute_text": "Maintenance of Internal Security Act, 1971", "statute": "Maintenance of Internal Security Act, 1971"}}, {"text": "clause 2", "label": "PROVISION", "start_char": 1449, "end_char": 1457, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(l)(a)(iii)", "label": "PROVISION", "start_char": 2143, "end_char": 2158, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3(1)(a)(iii)", "label": "PROVISION", "start_char": 2622, "end_char": 2642, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 2947, "end_char": 2953, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 2963, "end_char": 2984, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 3965, "end_char": 3974, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 3985, "end_char": 3994, "source": "regex", "metadata": {"statute": null}}, {"text": "Internal Security Act, 1971", "label": "STATUTE", "start_char": 4018, "end_char": 4045, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 4728, "end_char": 4732, "source": "regex", "metadata": {"linked_statute_text": "Internal Security Act, 1971", "statute": "Internal Security Act, 1971"}}, {"text": "Keonjhar on which tax had been paid under the Bihar and Orissa Motor Vehicles Taxation Act", "label": "STATUTE", "start_char": 7232, "end_char": 7322, "source": "regex", "metadata": {}}, {"text": "clause 2", "label": "PROVISION", "start_char": 11169, "end_char": 11177, "source": "regex", "metadata": {"statute": null}}, {"text": "AIR 1974 SC 816", "label": "CASE_CITATION", "start_char": 11704, "end_char": 11719, "source": "regex", "metadata": {}}, {"text": "Section 3(1)", "label": "PROVISION", "start_char": 14520, "end_char": 14532, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(l)(a)", "label": "PROVISION", "start_char": 15463, "end_char": 15478, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1975_1_58_66_EN", "year": 1975, "text": "COMMISSIONER OF SALES-TAX, U.P.\n\nMANGAL SEN SHY AM LAL April 2, 1975\n\n[V. R. KRISHNA IYER, R. S. SARKARIA AND A.C. GUPTA, JJ.]\n\nU.P. Sales Tox Act, 1948-Sectlon 10(3) and 10(3-B) period of limitation for filing revision by the Commissioner.\n\nInterpretation of Statute-Whether scheme of the Act and rule can be taken into consideration in interpreting the Act-Whether provision of an Act can be construed on lhe analogy of another Act not pari materia.\n\nThe respondent, a dealer, was assessed in July, 1948. In January, 1960, the SaJes Tax Officer wrote a letter to the Sales Tax Commissioner pointing out a mistake which had crept in the order of assessment. In April 1960, the Commissioner filed a Revision Application under s. 10 of the Acl Section 10(3) ands. 10(3-B) read as under:\n\n\"(3)(i) The Revising Authority (or an Additional Revising Authority) may, for the purposes of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in its discretion, call for and examine, either on its O\\VD motion or on the application of the Commissioner of Sales Tax or the persons aggrieved, the record of such order as it thinks fit :\n\nProvided that no such application shall be entertained in any case where an appeal lay against the order, but was not preferred.\n\n(3-B) The Application under sub-section (3) shall b' .made within one year from the date of service of the order complained of but the Revising, Authority may on proof of sufficient cause entertain an application within a further period of six months.\"\n\nThe assessee contended before th\" Revisional Authority that the revision \\\\'BS timebarred inasmuch as it bad been filed much beyond the period of Jimitation specified in s. 10(3-B). The Revenue contended that the starting point for limitation was January, 1960 when the Commissioner received the intimation of the assessment order and that since the revision had been filed within one year from that intimation, it was within time.· The Revisional Authority accepted the contention of the assessee and dismissed the application\n\nas time barred. On a reference the High Court answered the questions against the Revenue and in favour of the assessee.\n\nOn appeal by Special Leave it was contended before this Court by the Revenue:\n\n(1) Sub-section (3-B) does not provide any starting point of .limitation in the case of a revision filed by tQ.e Commissioner.\n\n(2) In any case, the starting point of limitation is the date of service of the order on the Commissioner or the dealer, as the case may be.\n\nOri the othr hand, the assessee contended that the starting point of limitation for a revision -application whether filed by the dealer or the Commissioner is the date on which the order of assessment is served on the dealer.\n\n' -\n\nHELD : The contention of the Revenue that there is no limitation for a A_ revision application filed by the Commisfiloner, is not correct. Sub-section (3-B) prescribes a period of limitatign for every revision-aj, plication, whether filed by the Commissioner or the dealer (all!eSSee), and the starting point of limitation is the date of the service of the order on the revisionapplicant. [64El\n\n(2) For the purpose of sub-section (3-B) service of the order complained of means something subsequent to and distinct from the mere making of B the order. It implies fonnal communication of the order after it has been passed, on the revision application.\n\n{64A]\n\n(3) Sin~ the revision application in the instant case was filed: by the Ccmmi.ssioner within one year of the communication of the assessment order, it w .. within time. [66Bl •,\n\n(4) The difficulty in construing the unhappy language of the otatute was C felt in the year 1960 and even earlier, and has given rise to this protracted litigation extending over fifteen years. It iB desirable that the Legislature should amend the statute and make its intent clear. In any event, it shouJd make a statutory provision requiring the Sales Tax Officer to send forthwith a copy of every assessment order made by him to the Commissioner for in~ formation. [66F-Gl\n\nCIVIL APPELLATE JURISDICTION; Civil Appeal No. 1861 of 1971.. D\n\nAppeal by Special Leave from the Judgment & Order .dated the 22nd January, 1970 of the Allahabad High Court in S.T .R. No. 361 of 1964.\n\nS. C. Manchanda and 0. P. Rana for the appellant.\n\nHardayal Hardy, K. B. Rohtagi M. K. Garg and E. C. Agarwala for the respondent.\n\nHardayal Hardy, K. B. Rohtagi and Ram Lal for the intervener\n\nThe Judgment of the, Court was delivered by\n\nSARKARIA, J.-This appeal by special leave is directed against the judgment of the Allahabad High Court answering against the Department, the following question referred to it under s. 11 of the U.P. Sales Tax Act, 1948 :\n\n\"Whether under the circumstances of the case, starting point of limitation for the Department to prefer a rev)SJon against the original assessment order would start from the date of assessment order or would start according to the discretion of the assessing officer or the Department from the time the assessing officer wishes to apprise the Department about the passing of the assessment as in this case.\"\n\nThe respondent-assessee is a dealer carrying on business at Beriyaganj, Shahjahanpur. On 26-7-1958, the Sales-tax Officer passed\n\nan order assessing him for the year 1957-58. . Subsequently. the Sales-tax Officer felt that by oversight a mistake had crept in the order of assessment made. by him.\n\nConsequently, in January 1960, he wrote a letter to P. A. to the Commissioner, Sales-tax seeking\n\nA guidance as to how he should proceed in the matter to rectify the omission.\n\nThe Commissioner treated that intimation received on 27-1-1960 as service on him.\n\nThereafter on 11-4-1960, the Commissioner filed a revisionapplication under s. 10 of the Act before the Judge (Revisions).\n\nWhen this revision came up for arguments before the revisional B authority, the assessee urged that the revision was time-barred iru\\smuch as it had been filed more than 18 months after the date of the assessment order. The assessee's contention was that the starting point for limitation was the date of the assessment order.\n\nAs against this, the Department maintained tbat the terminus a quo for limitation was 27-1-1960, on which date, the Personal Assistant to the C Commissioner had received the intimation of the assessment order, and consequently the revision having been filed within orie year of that date, was fully within time.\n\nThe Judge (Revisions) accepted the contention of the assessee and dismissed the revision as barred by limitation.\n\nAt the instance of the Commissioner, the Judge (Revisions) rc- D ferred the question under s.11 of the Ad to the High Court for opinion.\n\nThe reference, in the first instance, was heard by a Division Bench consisting of Jag dish Sahai and M1 H. Beg, JJ. J agdish Sahai J. was of the view that the starting point of limitation in the case of a revision application filed by the Commissioner would be the date on which the assessment order was passed by the Sales-tax Officer E because the law creates a presumption that the Commissioner would be deemed to have been served on that date.\n\nBeg J. struck the discordant note :\n\n\"My answer \\o the first part of the question, as framed, is in the negative.\n\nI am of opinion that the period of limitation for the Commissioner to prefer a revision application under s.10(3)(i) of the Act, will not start from the. date of ihe assessment order.\n\nI would answer the second part of the question also in the negative by saying that the period of limitation would not commence to run from any date lying within the discretion of or depending upon the wishes of the assessing officer.\n\nIt would commence, in accordance with s. 10 (3-B), from the actual date on which the Commissioner has been duly apprised of the contents of the assessment order in a mode which may be deemed to be \"service\" upon him.\n\nThe mere passing of an assessment order cannot, in my opinion, be possibly deemed to be \"service\" automatically upon the Commissioner. In the case before us the Commissioner applied within the prescribed period after the communication of the contents .of the assessmertt order to him which was sufficient \"service\".\"\n\nOn account of this difference of opinion, the case was referred to Verma J. who agreed with Jagdish Sahai J. and answered the question against the Department.\n\nHence this appeal.\n\n) -\n\n' Before 1954, no limitation for filing an application for revision was provided in the Act or in the rules framed thereunder. Such a provision was first made by the U. P. Act VIII of f954.\n\nThis amending Act added sub-sections (3-A) and (3-B) in s.10. of the principal Act of 1948. Section 10, after this amendment, reads as follows:\n\n\"10. Power of Revision. ( 1) The State Government shall appoint as Revisi_ng Authority a person qualified under clause (2) of Article 217 of the Constitution for appointment as Judge of a High Court.\n\n(2) The appellate authority appointed under section 9 shall be under the superintendence and control of the Revising Authority.\n\n(3) (i) The Revising Authority (or an Additional Revising Authority) may, for the purposes of satisfying itself as to the legality or propriety of any order made by any appel late or assessing authority under this Act, in its discretion, call for and examine, either on its own motion or on the application of the Commissioner of Sales Tax or the persons aggrieved, the record of such order as it thinks fit :\n\nProvided that no sue~ _ipylication shall be entertained in any case where an appeal lay against the order, but was not\n\npreferred : E\n\n(Provided further that an application for stay of realisation of any amount of tax, fee or penalty, shall not be entertained by the Revising Authority or by any Additional Revising Authority, unless an appeal or revision from the order of the assessing authority or the appellate authority, as the case may be, is pending before proper authori- F ty:\n\nProvided also that whenever realisation of any amount of tax, fee or penalty is stayed by the Revising Authority, or by any Additional Revising Authority. the applicant shall be required to furnish security to the satisfaction of the as- G sessing authority concerned, within such period as may be specified by it) .\n\n(ii) The State Government may appoint (such number of Additional Revising Authorities as it m.ay deem necessary, out of persons qualified for appointment as Revising Authority). The Additional Revising Authority shall exercise such powers of the Revising Authority as H may be prescribed or assigned to him by the State Government either generally in any area or in respect of any class of cases.\n\nt3-A) A copy of the order. passed under sub-section (3) shall be served upon the applicant.\n\n- - =4:\n\nA (3-B) The application under sub-section (3) shall be made within one year from the date of service of the order complained of but the Revising Authority may on proof of sufficient cause entertain an application within a further period of six months.\n\n( 4) The Revising Authority shall not pass any order under sub-section (3) adversely affecting (\\lly person unless an opportunity has been given to such person to be heard.\n\n(5) If the amount of tax assessed, fee levied or penalty imposed is reduced by the Revising Authority under subsection (3) it shall order the excess amount of tax, fee or penalty) if already realised to be refunded.\"\n\nAnswer to the question referred hinges upon a correct interpretation of sub-section (3-B).\n\nFrom the imprecise and unhappy language of this provision, four D different constructions can possibly be suggested, and indeed have been suggested at one stage or the other. First, that sub-section (3-B) does not at all take in a revision application by the Commissioner. Second, even if it does so, it does not provide any starting point of limitation\" in the case of a revision filed by the Commissioner.\n\nThird, that the starting point of limitation for a revision application, whether filed by the dealer or the Commissioner, is the date E on which the order of assessment is serverd on the dealer.\n\nFourth the starting point of limitation is the date of service of the order on the revision applicant, be he the Commissioner or the dealer.\n\nThe first is manifestly untenable. Sub-section (3-B) starts with an express reference to \"the application under sub-section (3)\". Sub- F section ( 3), in terms, provides that the revision-application may be made either by the dealer or by the Commissioner. The Commissioner's right under sub-section (3) to move the Revising Authority by an application is distinct and independent of the one conferred on the dealer, although the \"latter has under s. 9, an additional right of appeal against the assessment order, which must be exhausted before G he can invoke the revisional jurisdiction under this section.\n\nThus, in the context, sub-section (3-B) comprehends both categories of revision-applicant, namely, the Commissioner as well as the dealer.\n\nMr\" Manchanda, the learned Counsel for the appellant canvasses, in the first place, for the second construction, and, in the alternative, for the fourth, with the elucidation that the mere making of an order H of assessment by the Sales-tax Officer does not-contrary to the reasoning of the High Court-amount to automatic 'service' of that order on the Commissioner.\n\nMr. Hardyal Hardy, the learned Counsel for the caveators, does not support the interpretation adopted by the High Court. He maintains that the third construction is the correct one. The starting point\n\nI '\n\n' •\n\nc. s. T, v. MANGAt SEN (Sarkaria, !.)\n\n-0f limitation for a revision application, according to the Counsel, 4even if it be filed by the Commjssioner. is the date of 'service' -0f the order on the assessee. Mr. Hardy does not dispute the cor- 1ectness of the proposition propounded by Mr. Manchanda that the yery act of passing an assessment order by the Sales-tax Officer does not amount to its 'service' upon the Commissioner or his representative. Learned Counsel, however, points out that there is no provision in respect .of 'service' of an order of assessment made against a dealer hy the Sales-tax Officer, on the Commissioner, while. elaborate pro-\n\n..-isions for service of such an order on the. dealer exist in the Act :and the rules framed thereunder. Viewed against this background, J.lrocee<!s the argument, limitation would start running from the date\n\n-Of service of the order of assessment on the dealer, even agamst the\n\nCommissioner, irrespective of whether the latter was or was not .aware of the order. This is so, contends the Counsel, because once\n\n, limitation begins to run, .then, on the principle of s. 9, Limitation '.Act, unawareness of the order on the part of the Commissioner,\n\nill not stop it.\n\nOnce it is conceded that sub-sect10n (3-B) encompasses all re- 'Vision-applications, whether made by the assessee or by the Commissioner. then it necessarily follows that the period and the starting point of limitation provided therein, govern, withont exception, all !luch applications. Contention in favour of the second construction\n\nihus suffers from an inherent infirmity and self-contradiction. It must, 'therefore, be rejected:\n\nWe are now left to choose between the third and the fourth con- :; tructions.\n\nThe only starting point of limitation •mentioned in s. 10(3-B) is \"the da, te of service of the order complained of\". Now, what is ; meant by 'service' ?\n\nAnd on whom is it contemplated ? The sub- F , section is either obscure or silent on these points. The learned Judges , of the High Court have tried to door this obscurity by referring to\n\nthe scheme of the Act and the_ Rules. They have also referred to omewhat similar provisions of the Income-tax Act, and imported them .hy analogy into the sub-section in question so as to reach the con- .clusion that in the case of a revision application by the Commissioner the starting point of limitation is the date on which the assessment G\n\nrder is ade by the Sales-!ax Officer .. If we may say so with respect, _; n ~ceptm_g !at 7onstruct1011:, the High Court has, as it were, by\n\nJudicial legisla!Jon mtroduced m sub-section (3-B) a different starting point of limitation in case of a revision filed by the Commissioner.\n\nIn our opittion, it is not proper to interpret s. 10 (3-B) of the Act on the analogy of ss. 263 (2) and 264(2) of the Income-tax H _Act, _1961 which are not in pari materia with the sub-section in\n\n<JUestion.\n\nIt is safe and sufficient for our purpose to adhere to the scheme •:and language of the . Act and the Rules. 'Service' of an order of •assessment in the context of the scheme of the Act and the Rules\n\nA . means something subsequent and di:ltinct from the mere making of the order of assesment. It implies formal communication of the ·\\ Order after it has been passed on termination of the proceedings,. so that the party to whom it is communicated, may, if aggrieved, seek redress in a higher forum in the manner prescribed by Ia w.\n\nThat this should be the sense of the term 'service' in sub-section B (3-B) will be clear from a reference to Rule 70(1) which provides:\n\n\"70(1). A copy of every order of the Assistant Commissioner (Judicial) under sub-section (3) of section 9 or of the Judge (Revisions) under sub-section (3) of s. 10 shall be delivered or sent by post to the person affected by the order, and to the Commissioner.\"\n\nIt is true that the Ru!~ does not, in terms, apply to an original assessment order passed by the Sales-tax Officer, but that does not detract from its value as illustrative of the proposition that the mere passing of an order (in appeal or revision) does not operate as ser- D vice or communication of its contents to the Commissioner. It is to be noted that an order passed under section 9 ( 3) by the Assistant Commissioner (Judicial) in appeal, is revisable on an application filed by the Commissioner under sub-section (3) and limitation for such an application, also, is governed by sub-section (3-B) of s. 10.\n\nThe starting point of limitation for a revision-application whether filed against an appellate order or an original order of assessment, E being the same viz., service of the order sought to be revised, the connotation of the term 'service' must also remain constant.\n\nTrue, that the Act and the Rules do not make any provision for service of an assessment order passed by the Sales-tax Officer against a der, on the Commissioner. At the same time there is nothing in these statutory provisions, which inhibits the service of such an order on the Commissioner. Rather, the necessity of serving such an order of assessment on the Commissioner to enable him, if necessary, to file a revision-application. is implicit in the language of s. 10 (3-B).\n\nIndeed, regular and prompt communication of Slich orders to the Commissioner, is a must for a proper and fair working of the provision.\n\nWe are not persuaded to accept Mr. Hardy's contention that the phrase \"the date of service of the order complained of' does not include service on the Commissioner.\n\nThis phrase has to be read as a whole, consistently with the scheme of the Act and the Rules [particularly Rule 70 (I)] with due emphasis on the key words H complained of\". This is the only interpretation which, in our opinion, expanded as \"the dat~ f service oi; i the revision-app_licam, of the ?r.der\n\n\"complained of''. This 1s the only mterpretatmn which, m our op1mon, comports best with the scheme and language of the statute and te maintenance of parity between the assessee and the Department m the matter of limitation which was intended to be secured by the amendment of 1954. >4\n\nThe alternative interpretations--0ne suggested by Mr. Hardy, and .the other devised by the High Court-appear to be repugnant to the scheme and object of the statute ; they envisage a varying and uneven construction of the scope, meaning and elfect of the word\n\n\"service\", applying it differently to different applicants though similarly situated. The very nature of the right to file a revision under s. 10 imports, as a necessary condition, service or communication of the contents of the order complained of. In a sense, this remedial right cannot be said to accrue until the party concerned on being served, becomes ware of the cause of grievance and consequent necessity of redress. The interpretalion expounded by Mr. Hardy seems to be lop-sided and anomalous. It unfairly reserves the \"service\" exclusively for the dealer, keeping the Commissioner out in complete darkness without due chance of knowing whether an order of assessment passed by the Sales-tax Officer is injurious to public revenue or not.\n\nThe construction put by the High Court is too fictional and innovative. Nor does it keep the Commissioner and the assessee in pari passu. Drawing more by analogy from sections 263 and 264 of the Income-tax Act, 1961 and less from the statute under consideration, it is, at best, a conception of law as it ought to be, rather than of what it actually is.\n\nWe are conscious that the law contained ins. 10(3-B), as exposed\n\nby us, is not perfect.\n\nIt is susceptible to abuse.\n\nIndeed, it was such an apprehension that seems to have persuaded the learned Judges of the High Court, too far away from the language of the statute, into the realm of speculation and induced them, as it were, E to substitute so far as the Commissioner was concerned \"the date of the order\" for \"the date of service of the order\" provided by the Legislature. Said Verma. J. :\n\n\"If a different view were to be taken then it would be open to the Sales-tax Officer not to serve a copy of the assess- F ment order on the Commissioner for ten or twenty years. lt is prosperous to imagine that the period of limitation would remain in abeyance ul1!ti! the Sales-tax Officer chooses to serve, formally, a copy of the assessment order on the Commissioner''.\n\nThese are strong words and the apprehension expressed therein is G not altogether baseless. But the apprehension does not stem from any inherent defect in the legislature's choice of \"service\" as the terminus a quo for limitation. It arises out of the omission to make any provision in the Act and the Rules requiring the Sales-tax Officer to send forthwith a copy of every assessment order to the Commissioner, also. Supplying of that omission is a matter for the legislature and not for the Court.\n\nBe !ha, t as it. f!lay, , the court cannot can the wisdom of the legisl~e . m prescnbmg the date of service' as the starting point of lumtahon. Nor can the court refuse to give effect to it or substitute for it any other terminus which it thinks to be more reasonable. merely because there is an apprehension of its abuse.\n\n\",'\n\nIn the light of the above diScussion, we are of the opinion that the date of service of the order complained of, on the revisionapplicant, is the starting point of limitation within the contemplation of s.10(3-B) of the Act. Accordingly we allow the appeal, set aside the judgment of the High Court and answer the qusetion referred in favour of the Revenue. Since the revision-application in the instant case, was filed by the Co=issioner within one year of the co=- unication of the assessment order to him, it was within time. In the circumstances of the case, there will be no order as to costs.\n\nWe part with this judgment with a note of regret bnt in the hope that something good may come out of it.\n\nA statute is supposed to be an authentic repository of the legi- C slative will and the function of a court is to interpret it \"according to the intent of them that made it\". From that function the court is not to resile. It has to abide by the maxim ut res magis vallat quam pereat, lest the intention of the legislature may go in vain or be left \"to evaporate into thin air. Where tl; iat intent is clearly expressed in the language of the Act, there is little difficulty in giving effect D to it. But where such intent is covert and couched in language which is imperfect, imprecise and deficient, or in ambiguous or enigmatic, a.nd external aids to interpretation are few, scanty and indeterminate, the court may despite application of all its experience, ingenuity and ratiocination, find itself in a position no better than that of a person\n\nsolving a cross-word puzzle with a few given hints and bunches. In such a situation a mere .reference to the High Court of a question for opinion may not afford an adequate solution.\n\nOnly legislative amendment may furnish an efficacious and speedy remedy.\n\nThe present is a typical illustration of such a case. The difficulty in the interpretation of the unhappy language of this statute was felt in\n\n1960 and even earlier. We are now in 1975. For fifteen long years, the Department has been fighting this tardy, expensive and sterile litigation. Even after this long-drawn struggle culminating in judicial finale, a doubt might persist as to whether the court ha5 succeded in divining the true legislative intent. It is therefore desirable that the legislature should amend the statute and make its intent clear.\n\nIn any event, to make the law workable, it should make a statutory provision requiring the Sales-tax Officer to send forthwith a copy G of every assessment order made by him to the Commissioner for information.\n\nAppeal allowed.\n\nP.H.P.", "total_entities": 34, "entities": [{"text": "COMMISSIONER OF SALES-TAX, U", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF SALES-TAX, U.P", "offset_not_found": false}}, {"text": "MANGAL SEN SHY AM LAL", "label": "RESPONDENT", "start_char": 33, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "MANGAL SEN SHYAM LAL", "offset_not_found": false}}, {"text": "V. R. 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{"document_id": "1975_1_67_72_EN", "year": 1975, "text": ". J\n\nDAITONPANT GOPALVARAO DEVAKATE\n\nVITHABRAO MARUTHIRAO JANAGAVAL\n\nApril 3, 1975\n\n[V. R. KRISHNA !YER AND N. L. UNTWALIA, JJ.]\n\nTransfer of Property Act (4 of 1882), Sections 106, !JO ond 111-Scope of.\n\nThe appellant was tenant under the respondent's predecessor for a period of one year tenancy commencing from April 9, 1945. The _respondent pur- _ chased the property in August, 1968 and the appellant became his tenant .\n\nOn November 19, 1968 the respondent gave notice to the appellant terminating C his tenancy and asking him to deliver possession by December 8, 1968 .. There after he filed an application for eviction of the appellant under the Mysore Rent Control Act, 1961. The trial court dismissed the application but the first appellate court allowed the appeal and the High Court confirmed the order in revision.\n\nIn appeal to this Court it was contended, inter alia, that there was no valid notice terminating the tenancy.\n\n.Allowing the appeal to this Court,\n\nHELD : ( 1) There are no grounds justifying the interference with the findings of fact recorded by the first appellate court and the High Court that the respondent required the premises reasonably and bona fide for his personal occupation, and that no, hardship, would be caused to the tenant by passing E , the decree. -\n\n(2) The lease was not for a manufacturing purpose and the holding over by the appellant under s. 116 of the Transfer of Property Act created a month to-month tenancy terminable by 15 Q'ays notice ending, with the tenancy month given under s. 106 of the Transfer of Property Act. [70B].\n\n(3) Under s. 110 of the Transfer of Property Act, in computing the period of one year the date of commencement of the tenancy, that is, April 9, 1945, had to be excluded. Therefore, the one year's tenancy ended on April 9, 1946. By holding over the tenancy _from month-to-month started from April 10, 1946 ending on the 9th aay of the following month. Therefore,\n\nthe view taken by the first appellate court and by the High Court that the one year's tenancy ended on the 8th April, 1946 and hence the monthly tenancy started from the 9th day of the month ending on the 8th day of the following month isclearly erroneous in law.\n\nThat being so there was no valid and\" G legal termination of the contractual tenancy. [70 E, F & H].\n\nBenoy Krishna Das and others v. Salsiccioni and others 59, Indian Appeals, 414, applied.\n\n( 4) The appellant was a contractual tenant who would have become a statutory tenant within the meaning of s. 2 (r) of the Mysore Act if he ould have con.tinued in poss.ession after the, termination of the tenancy in his favour.\n\nWithout term1nation of the contractual tenancy by a valid notice H or other mode set out in s. 111 of the Transfer of Property Act it was not open to the landlord to treat the' appellant as a statutory tenant nd seek his eviction without service of a valid notice to quit. [71 DJ.\n\nGanga Dutt Murarka v. Kartik C.andra Das and others [1961] 3 S.C, R. 813 and Pooran Chand v. Mori/al and others [1963] 2 Suppl. S.C.R. 906, referred to;\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. l!SO(N) of 1974.\n\nAppeal by special leave from the judgment and order dated the 29th March, 197 4 of the Karnataka High Court in C. Revn. Petn.\n\nNo. 1054 of 1973.\n\nV. S. Desai and R. B. Datar for the appellant.\n\nY. S. Chilale, P. C. Kapur and V. N. Ganpule, for the respondent.\n\nThe Judgment of the Court was celivered by\n\nUNTWALIA, J.-The defendant-appellant in this appeal by special leave was a tenant of the suit premises situated in the town of Hubli when the plaintiffs-respondent purchased the property from the original owners by two sale deeds executed in August, 1968.\n\nThe appellant thereafter became a tenant under the respondent.\n\nThe latter gave a notice purporting to terminate the former's tenancy and thereafter filed an application under section 21(1) (a) and (h) of the Mysore Rent Control Act, 1961-hereinafter referred to as the Act, for his eviction from the suit premises consisting of two shops. The appellant resisted the application for eviction on several grounds. The Trial Court dismissed it but on appeal by the landlord the District Judge allowed the application for eviction.\n\nThe tenant filed an-application in revision under section 50 of the Act in the Karnataka High Court.\n\nThe High Court dismissed the revision application.\n\nHence this appeal.\n\nThe issue as to the appellant's liability to be evicted on the gronnd mentioned in clause (a) of sub-section (1) of section 21 of the Act was not pursued and eventually given up.\n\nThe learned Additional Munsif who tried the application in the first instance held against the respondent on the question of the premises being reasonably and bonafide reqnired by the landlord within the meaning of clause (h).\n\nHe also held that having regard to all the circumstances of the case greater hardship would be caused by passing a decree for eviction than by refusing to pass it.\n\nIn that view of the matter also as provided in sub-section ( 4) of section 21, the Trial Court refused to pass a decree.\n\nIt further held that the lease was for a mam1factur- G ing purpose or at least the dominant purpose was a manufacturing one, it was a yearly lease and could not be terminated by less than 6 months notice or in any view of the matter the .notice given even treating the tenancy to be a monthly one was illegal and invalid.\n\nH The learned District Judge in appeal has reversed all the findings of the Trial Court.\n\nHe has held that the landlord required the premises reasonably and bonafide for occupation by himself and that no hardship would be caused to the tenant by passing a decree for eviction.\n\nHe also held that the lease was not for a manufacturing purpose nor a yearly one. The notice terminating the monthly tenancy was good and valid.\n\nThe High Court in revision has affirmed the view of the Appellate Court on all the controversial issues.\n\n, ..\n\nDATTON PAN1' v. VITHABRAO ( Untwalia, J.) 69\n\nMr. V. S. Desai, learned counsel for the appellant urged three A points in support of 1his appeal :\n\n(1) That the findings of the lower Appellate Court and the High Court in regard to the reasonable anc! bonafide requirec ment of the suit premises for occupation by the landlord are vitiated in Jaw.\n\nB ( 2) The finding on the question of comparative hardship of the landlord and the tenant has been recorded by committing errors of law.\n\n(3) That the notice terminating the tenancy was invalid becanse the lease was a yearly. one being for a manufacturing purpose am:! even if the tenancy be a monthly one, the notice C was not in accordance with law.\n\nMr. Y. V. Chitaley controverted the submissions made on behalf of the appellant and added in the alternative that the appellant was a statutory tenant and hence no notice was required to be given before seeking a decree for eviction against him.\n\nThe appellant had taken the suit premises on rent for a period of one year from the responc!ent's predecessors-in interest by a writt1; n\n\ndocument Ext. P-12 dt. 15-6-1945. , The tenancy commenced from 9-4-1945, The respondent purchased the property in August, 1968\n\nand gave a notice on 19-11-1968 which was served on the appellant on 21-11-1968 terminating his tenancy and asking him to deliver E 'Possession by the 8th December, 1968. We have been taken through the portions of the judgments of all the three courts below and the relevant pieces of doc\\llllentary anc! oral evidence adduced by the parties.\n\nOn the question of the respondent requiring the suit premises reasonably and bonafide for his personal occupation as also on the point of comparative hardship two views were possible on the materials in the record of this case.\n\nA view in favour of the F tenant was taken by the Trial Court but against him by the Appellate Court. The findings of fact recorded by the Appellate Court .were not found to be snch by the High Court as to jnstify the exercise of its revisional power under section 50 of the Act. It is tme that the power conferred on the High Court unc!er section 50 is not as narrow as the revisional power of the High Court under section 115 of the Code of Civil Procedure. But at the same time it is not G \"wide enough to make the High Court a second court of first appeal We do not think that there are such pressing grounds in this case which would justify our, upsetting the views of the High Court con- , . firming those of the lower Appellate Court. It is not necessary to . -discuss the first two points urged on behalf of the petitioner in any\n\ndetail anc! we reject them on the short ground mentioned above.\n\nComing to the question of notice we would like to state at the outset that on the basis of the evidence in the case the Appellate . Court took the view that the lease was not for a manufacturing pur- : pose.\n\nThe lease was for one year which expired on 9-4-1946.\n\nThe\n\n~nant held over under section 116 of the Transfer of Property Act.\n\nExt. P-12 did not mention the purpose of the lease. The learnr.d\n\nDistrict Judge was of the opinion that the 'appellant started !llll!rinfactnring Soda in a small portion of the L'emised, premises after the lease for one year was taken. In any view of the matter the ._dominant purpose of the lease was not a manufacturing one but v/iis the sale of aerated water.\n\nThe High Court has affirmed this fintilhg ia revision.\n\nWe do not feel inclined to upset the findings of 'tile twocourts below in this regard. If the purpose of the lease was not a. manufacturing one, then the holding over under section 116 cof the\n\nTransfer of Property Act created a month-to-month tenancy teniinable by 15 c!ays notice ending with the tenancy month given under sectio11.\n\n106 of the said Act.\n\nThe appellant, however, must succeed on the last submission made on his behalf that even so, the notice was invalid.\n\nAs already stated the notice purported to terminate the tenancy by the 8th December~\n\n1968 treating the month of tenancy as commencing froirl the 9th: day of a month and ending on the 8th day of the month''following_\n\nThe requisite period of 15 c!ays was given but the defei:l in the notice was that it did not expire with the end of the month of the tenancy.\n\nThe end of the month of the tenancy was the 9th day and not the 8th day as wrongly held by the High Court affirming the view of the lower Appellate Court. ··\n\nUnder Ext. P-12 the appellant agreed to pay Rs. 600/- as rent for one year from 9-4-1945.\n\nThe tenancy obviously, theJefore, commenced from that c!ate.\n\nThat being so, under section 110 of the Transfer of Property Act in computing the period of one year the date of commencing i.e. the 9th day of April, 1945 had to be excluded.\n\nThe one year's tenancy ended on the 9th April, 1946. It is clearly mentioned to be so in Ext. P-12 in these words :\n\n\"I shall make use and enjoyment of the saic!. shops as a. tenant for one year and deliver your shops to you without objections on 9-4-1946\".\n\nBy holding over the tenancy from month-to-month, .. started from the 10th April, 1946 ending on the 9th day of the following month.\n\nThis view finds support from the Rent Receipts Ext. D-1 and D-I(a).\n\nThe evic!ence on behalf of the respondent that there was a mistake inthose receipts is not correct as the said receipts are in conformity with Ext. P-12.\n\nOn the other hand Ext. P-13 and Pr 14, the other two Rent Receipts, being not in accord with Ext. p:12 could not be relied on. In Ext. P. 16 the Controller by his order dated 29-9-1963 while fixing the fair rent of the suit premises at Rs. 1050/- per year had fixed it with effect from 10-4-1963.\n\nThat also ·shows that the tenancy month commenced from 10th cay of a month and ended on the 9th day of the following month.\n\nThe view taken by the learned District Judge as alfo by the High Court that the one year's tenancy ended on the 8th April, 1946 whenthe tenant agreed to deliver possession on the 9th April and hence the monthly tenancy started from the 9th day of the, month ending on the 8th c!ay of the following month is clearly erroneous in law.\n\n' !\n\n............. -\n\nDATTON PANT v. VITHABRAO ( Untwalia, J,) 71\n\nThat being so there was no valicl and legal termination of the contrac- A ma1 tenancy.\n\nIn Benoy Krishna Das and others v. Salsiccioni and others(1) on the facts of that case Lord Tomlin delivering the judgment of the Judicial Committee of the Privy Council held the notice to be valid.\n\nA lease for residential purposes• of certain property in Calcutta was B expressed to be from June 1, 1921, for the ensuing four years. The tenant held over. The monthly tenancy was sought to be terminated by the lessee stating therein that possession would be given up on March 1.\n\nThe landlord's contention that the notice ended on Feb- • ruary 29, 1928 was not accepted.\n\nThe four years lease was held to have ended on midnight of June 1, 1925. The monthly tenancy ' began on the 2nd of the month ending on the 1st ancl so the notice C was held to be valid.\n\nWe do not think that the alternative argument put forward by Mr. Chitaley that no notice was necessary in this case is correct. The appellant was a contractual tenant who would have become a statutory tenant within the meaning of clause (r) of section 2 of the D Act if he would have continuecl in possession after the termination of the tenancy in his favour. Otherwise not. Without termination of the contractual tenancy by a valid notice or other mode set out jn Sec. 111 T. P. Act it was not open to the landlord to treat the apellant as a statutory tenant and seek his eviction without service of a notice to quit.\n\nIn support of his contention Mr. Chitaley placed reliance on two decisions of this Court namely Ganga Dull Murarka v. Kartik Chandra Das and others(') and in Pooran Chand v. Motilal & others('). Neither of these supports his contention.\n\nIn the case of Ganga Dutt Murarka a passage from the clecision of the Federal Court in the case of Kai Khushroo Bezonee Capadia v. Bai Jerbai Hirjibhoy War- F den and another(') was quoted with approval.\n\nA portion of it may be usefully quoted here also.\n\nIt runs thus : .\n\n.I- \"In such circumstance, acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as eviclence of a new agreement of tenancy, and G it would not be open to soch a tenant to urge, by way of defence, in a suit for ejectment brought against hinI, under the provision of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit. '\n\nThe tenancy of the appellant in the above case was found to have bee!1 determined by efflux of time and subsequent occupation H was not m pursuance of any contract, express or implied but by virtue of the protection given by successive statutes. In the case of\n\n(I) 59, Jndian Appeals, 414.\n\n(2) [1961] (3) S.C.R. 813.\n\n(3) [1963] (2) Suppl. S.C.R. 906.\n\n(4) !1949] Federal Court Reports, 262.\n\n!OSC/75-6\n\nA Pooran Chand, Subba Rao, J. as he then was, said at 912, when a similar argument was advanced before him :\n\n\"It is not necessary in this appeal to express our opinion on the validity of this contention, for we are satisfied that the term of the tenancy had expired by efflux of time; and, therefore, no question of statutory notice woulcl arise.\"\n\nNo notice is necessary if a lease of immovable property determined under clause (a) of section 111 of the Transfer of Property Act by efflux of the time limited thereby.\n\nC In the result we ~!low this appeal and set aside the decree of eviction passed against the appellant and in favour of the respondent by the lower Appellate Court as affirmed by the High Court. . In the circumstances we shall make no order as to costs.\n\nAppeal allowed.\n\nV.P.S.", "total_entities": 35, "entities": [{"text": "J\n\nDAITONPANT GOPALVARAO DEVAKATE", "label": "PETITIONER", "start_char": 2, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "DATTONPANT GOPALVARAO DEVAKATE", "offset_not_found": false}}, {"text": "VITHABRAO MARUTHIRAO JANAGAVAL", "label": "RESPONDENT", "start_char": 37, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "VITHABRAO MARUTHIRAO JANAGAVAL", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 108, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "N.L. 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{"document_id": "1975_1_73_78_EN", "year": 1975, "text": "DHANRAJ\n\nSMT. SURAJ BAI\n\nApril 3, 1975.\n\n[V. R. KRISHNA IYER AND N. L. UNTWAL!A, JJ.J\n\nJlindu ,4._doptions and Maintenance Act. 1956-Ss. 6(ii), 9 and 11-IJ step-mother could give step-son in adoption in the absence of natural parents- If a nlaior could be given in adoption.\n\nSection 6(ii) of the Hindu Ao.option and Maintenance Act, 1956 states C that no adoption shall be valid unless the person giving in adoption had the <:apacity to do so.\n\nSection 9(1) says that no -person except the father or mother or the guardian of a child shall have the capacity to give a child in adoption.\n\nSection 11 (vi) says that the child to be adopted must be actually given ancl taken in adoption by the parents or guardian concerned.\n\nThe appellant, who was 21 years old, was adopted by the respondent and her husband.\n\nHis natural parents having been dead, he was given in D adoption by his step-mother.\n\nSubsequently, however, the respondent and her husband filed a suit questioning the validity of the adoption and for declara~ tion that the adoption was illegal and invalid. The appellant claimed that under the Hindu Adoptions and Maintenance Act, 1956 the step-mother was -competent to give him in adoption. '\n\nThe trial court held that the adoption was invalid on the grounds that the appellant had been given in adoption by his step-mother, who was not E competent to \"do so.\n\nThe High Court upheld the view of the trial court.\n\nDismissing the appeal to this Court.\n\nHELD : (1) Te. 'physical at of giving and receiving was absolutely necessary to. the vahd1ty of adoption under the Hindu Law as it existed before the co!D-1ng into fo\\ce of the Act.\n\nIdentical is the position under the Hindu F dopttons and Maintenance Act, 1956. Nor is it different as to the incapacity of the step-mother to give her step-son in adoption. [76 E].\n\nfapa1nma V.· V. Appa .Rau and Ors., LL.R. 16, Mad. 384 and Haribhau ttJnd Anr. v. A1abrao Ra1n1i lngale and Ors., A.I.R. 1947 Nagpur 143 referred o .\n\n. 1 (2) Under_ s. 9(1) of. the fl.ct. even the guardian of a child has the capa c1 Y to give him or her in au.option.\n\nBut the step-mother as such has not G\n\n~~r:t}~he~n~~~ea~~f~~e:~ {7~ Fj. (1) must necessarily mean th~\n\nand (!t\n\n1 h: f:; r ~~h!r s. t~t t:0erm 'mother' means the natural mother tance etc., is distinct ad. differnt fr~~ for tt:-1a.ny h1rposes such as inherian adoptive mother takes the place of rng1tbe e~, w1{ e_, generally speaking, The necessity of the explanation (i) t 9 r o a intents and purposes. mother from the expression mother 80 h:t arde Jo exclude the adoptive H competent to give the adopted son in adoptiont a op vbe dmother may not be ' o some o y else. [76 HJ.\n\n(4) Under the Jaw as engrafted in 10 f capable of being taken in adoption if h s. b he Act, a person is not ~5 Ydearlsl and that is the reason that thee ~rJ chJd_ .. chmplbeeted the ae of an . The use of the word \" ers ,, . .!. as en used 1n ss. ment of s. 10 is not for the pu!'pos on fib~· ~(u1) and at the. commencee o nng1ng about any ciifference in\n\nSUPREME COURT RF.PORTS\n\n[1975J SUPP. S.C.R.\n\n' law in regard to the giving of the child.\n\nIf the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. 'Child' would not necessarily mean in that context a minor child.\n\nIf the child is a minor, in the absence of the father or the mother a guardian appointed by the will of the child's father a mother and a guarOian appointed or declare-d by a court, would be competent to give the child in adoption.\n\nBut in case of a major in the absence of the father or the mother, no body will be competent to give him in adop- . tion because no such provision has been made in the Act to meet such a contingency.\n\nThe scheme of the Act \\Vas not to make a child of J 5 vears of age or above fit to be taken in adoption.\n\nException \\:vas inade in favour of a custom to the contrary. [77 C~F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 476(N) of 1973.\n\nFrom the Judgment and decree dated the 23rd August. 1973 of the Rajasthan High Court in D. B. Civil Regular First Appeal No. 70 of 1966. -\n\nS. M. Jain for the appdlant.\n\nL. M. Singhvi, Urmila Sarur, A. Gupta and .T. K. Jain for the D respondent.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, J.-In this appeal filed by certificate of the Rajasthan High Court we arc concerned with the question of the legality and validity of the adoption of the appellant by the husbane of the respondent.\n\nAmichand, respondent's husband, adopted the appellant with the consent of the respondent on the 18th November, 1959 and executed a registered c!eed evidencing the fact of adoption.\n\nThe appellant at that time was 21 years of age.\n\nBoth his natural father and mother were dead. He had a step.mother Bhuri Bai with whom the appellant was residing at the time of the impugned adoption. The appellant was given in adoption by his step-mother.\n\nSubsequently the respondent's husband ane the respondent filed a suit in the year 1963 against the appellant impeaching his adoption on various grounds and for a declaration that the adoption was illegal and invalid. The appellant contested the suit and. inter a/ia, pleaded a custom applicable to the parties according to which a person being of the age of 15 years or more could be taken in adoption.\n\nThe custom was pleaded in view of the provision of the law contained in clause (iv) of section 10 of the Hindu Adoptions and Maintenance Act, 1~56--; hereinafter referree to as the Act.\n\nThe appellant also stated m his written statement that under the Act the step.mother was competent to give him in adoption.\n\nSeveral issues were framed inchrding an issue regarding the cus tom as pleaded.\n\nIssue No. 1 A by. agreement of te paties without the adducing of any evidence was tned as a prehmmary ISsue by the Trial Court. The said issue runs as follows :\n\n\"Whether the ac!option of Dhanraj is invalid on the ground that he has been .given in adoption by his step-mother Mst.\n\nBhuri Bai.\"\n\nDHANRAJ v. SURAJB~I (Untwalia, J.) 75\n\nThe Trial Court decided the issue in favour of the plaintiffs and A against the defendant.\n\nThe latter filed a first appeal in the High Court.\n\nD11ring the pendency of the appeal, plaintiff no. 1 died. The -0nly respondent left was his wic!ow.\n\nThe High Court •has held that the step-mother was not competent to give the appellant in adoption and maintained the dismissal of the. snit on that preliminary issue.\n\nHence this appeal.\n\nThe only point, therefore, which falls for determination in this appeal is whether the step-mother was competent to give the appel-\n\n!Jant in adoption. If not, whether the adoption is void 'I\n\nIn Mayne on Hindu Law and Usage, eleventh edition is founcl a passage at page 226 to say- C\n\n\"No other relation but the father or mother can give away a boy.\n\nFor instance, a step-mother cannot give away her stepson, a brother cannot give away his brother.\n\nNor can the paternal grandfather, or any other person. Nor is a woman competent to give in adoption her illegitimate son born of adulterous D intercourse.\n\nIt is well settled that the parents cannot delegate their_ authority to another person, for instance, a son, so as to enable him, after their death, to give away his brother in adoption, for the act when done m11St have parental sanction. And, therefore, even an adult orphan cannot be adopted, because he can neither give himself away, nor be given by anyone with authority to do so.\" E\n\nIn Papamma v. V Appa Rau and others(') Muttusami Ayyar and Best, JJ. have held that under the Hindu Law the step-mother could not give her step-son in ac!option.\n\nAn identical view has been expressed in the case of Haribhau and another v. Ajabrao Ramji lngale and others(').\n\n...\n\nThe question for consideration is whether the law that a step- F\n\nmother could not give a step-son in adoption is changed after com- - ing into force of the Act.\n\nSection 4(1) of the Act provides :\n\n\"Save as otherwise exprei; sly provided in this Act,-\n\n( a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act\".\n\nSection 5 ( 1) says :\n\n. \"No adoption shll be made after the commencement of this Act by or to a Hindu except in accordance with the provi-\n\n(J) I.L.R. 16, Mad. 384.\n\n(2) A.I.R 1947, Nagpur, 143.\n\nSUPREME COURT REPORTS\n\n[1975} SUPP, S.C.R.\n\nsions contained in this Chapter, and any adoption made in contravention of the saio provisions shall be void.\"\n\nNo adoption shall be valid as mentioned in section 6 unless-\n\n\"(ii) the person giving in adoption has the capacity to do so ;\"\n\nOther conditions for a valid adoption under the Act are stated in section 11 which provides :\n\n\"In every adoption, the following conoitions must be complied with : -\n\n(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoneo child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption : \"\n\nThe physical act of giving and receiving was absolutely necessary to the validity of an adoption under the Hindu Law as it existed before coming into force of the Act : vide para 489 at page 554 of Mulla's Hindu Law, Fourteenth Edition.\n\nIdentical is the position unoer the Act.\n\nNor is it different as to the incapacity of the stepmother to give her step-son in adoption.\n\nSection 9 of the Act enumerates the persons capable of giving in adoption.\n\nSub-section ( l) says :\n\n\"No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.\"\n\nThe departure in the Jaw is that under the Act even the guardian of a child has the capacity to give him or her in adoption.\n\nBut the step-mother as such bas not.\n\nThe father or mother mentioned in sub-section ( 1) must necessarily mean the natural father ano the natural mother. Explanation (i) appended to section 9 was pressed into service to say that the step-mother is included in the term \"mother\" because the said explanation says \"the expressions \"father\" and \"mother\" do not include an adoptive father and an adoptive mother.\" Learneo counsel for the appellant submitted that step-mother has not been excluded from the expression \"mother\" and only an adoptive mother bas been so excluded.\n\nBy necessary implications, therefore, it was submitted that it ought to be held that the word \"mother\" in sub-section (i) includes a step-mother.\n\nWe have no difficulty in rejecting this argument.\n\nReading section 9 as a whole ano specially in the context of sub-sections (2), (3) and (4) it is clear that the term \"mother\" means the natural mother and not the step-mother.\n\nA step-mother for many purposes such as inheritance etc. is. distinct and differen1 from mother; while, generally speaking, an adoptive mother takes the place of mother to all intents and purposes.\n\nThe necessity of the explanation, therefore, arose to exclude the adoptive\n\nDHANRAJ v. SURAJBAI (Untwalia, J.) 77\n\nmother from the expression mother so that an adoptive mother may A not be competent to give the adoptecl son in adoption to somebody else.\n\nLearned counsel for the appellant then submitted that in case of an adult orphan, as the appellant was at the time of adoption, no consent was necessary of any person except the adoptee himself. No body could be available to give him in adoption. The use of the B word \"child\" in claU'Sc (vi) of section 11 and in section 9(1) reacl in contra-distinction of the use of word \"person\" in clause (iii) of section 6' would make it clear, counsel submitted, that the condition of giving in adoption is applicable only to a minor child and not to an adult.\n\nWe see no substance in this argument.\n\nUnc!er the law as engrafted in section 10 of the Act, a person is not capable C of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word \"child\" has been used in sections 9 and 11.\n\nThe use of the word \"person\" in section 6 (iii) and at the commencement of section 10 is not for the purpose of bringing about any difference in law in regarcl to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be D the child of the father or the mother. 'Child' would not necessarily mean in that context a minor child. If the child is a minor, in absence of the father or. the mother, a guardian appointed by the will of the child's father or mother ancl a guardian appointed or declared by a court, would be competent to give the child in adoption.\n\nBut in case of a major in absence of the father or the mother, no E body will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency.\n\nThe scheme of the Act was not to make a child of 15 years of age or above fit to. be taken in adoption.\n\nException was made in favour of a custom to the contrary.\n\nLearned counsel for the appellant then attemptec! to argue on the basis of the decisions of the Bombay High Court in the cases of F Motilal Mansukhram v. Maneklal Dayabha(') and Prahlad Sheonarayan Chokhani v. Damodhar Rankaran Vaishnao and others,(') that even under the old Hindu Law the adoption of an orphan was not valid except by custom; but if the custom permitted it, anc! iri the case of Porwal Jains it did permit, then an orphan who was not minor could go in adoption by his own consent without the consent of and the giving by anybody else.\n\nWe think that it would be G a ticklish and debatable question to decic!e whether the second part of clause (a) of section 4 would have such a custom from the overrding effects of sections 6, 9, and 11. But it will be a futile exercise here to embark upon the decision of this point as in our judgment it does not arise at all in this case.\n\nIn paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old coulc! be taken in adop!in.\n\nNothing was pleaded to H say that there was a cnstom of givmg an orphan in adoption or that a prson above h~ age of 15 years could go in adoption without the physical act of g1vmg by anybody, on his own and with his consent anly: On the other hand the pleading in sub-paras (1) and\n\n(1) A.LR. 1921, Bombay, 147.\n\n(2) A.l.R. 1958, Bombay, 79.\n\n78 SUPltBMB COURT REPORTS [1975] SUPP. s.c.R.\n\n(3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in ac!option and that she did give him in adoption. It was not open to the appellant, therefore, to take this n\"-.W point of law for the first time in this Court without the foundation of facts to found it upon. ' B For the reasons stated above, we dismiss this appeal No costs.\n\nP.B, R.\n\nAppeal dismissed.\n\n' - •", "total_entities": 30, "entities": [{"text": "DHANRAJ", "label": "PETITIONER", "start_char": 0, "end_char": 7, "source": "metadata", "metadata": {"canonical_name": "DHANRAJ", "offset_not_found": false}}, {"text": "SURAJ BAI", "label": "RESPONDENT", "start_char": 14, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "SURAJ BAI", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 42, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "V.R. 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{"document_id": "1975_1_79_83_EN", "year": 1975, "text": ".·\":,.< _-\n\nHARSOOKDAS BALKISSENDAS\n\nTHE FIRST LAND ACQUISITION COLLECTOR & ORS.\n\nApril 8, 1975 lA. N. RAY, C. J. AND V. R. KRISHNA IYER J.)\n\nLand Acquisition Act, s. 49(2)-Scope of.\n\nSection 49(2) of the Land Acquisition Act provides that if in the case of :any claim under s. 23(1),. thirdly, by a person interested, on account of the severing of the land to be acquired from his other land the appropriate Government is of the opinion that the claim is unreasonable and excessive, it may, at any time before the Collector. has made his award, order the acquisition of the whole of the land of \\Vhich the land first sought to be acquired forms a part.\n\nA part cf a large area of land belonging to the appellant was sought to be acquired by the State. The appellant put forward a claim on account of damage caused by severance, under s. 23(1) thirdly.\n\nThe claim was held to be unreasonable and excessive, by the Government. Sanction for the acquisition of the entire land of the appellant having been approved, a further portion of the land v;.as acquired. The appellant contended: (1) that s. 49(2) applies only to land with buildings, that the landi acquired was a vacant ]and with no house or buildings; (2) that he made the claim for compensation under third and founb. clauses of s .. 23 of the Act and therefore s. 49(2) had no application; and (3) that the acquisition of a portion of the land was not for public purpose as there v; as no further declaration of public purpose and the acquisition Was therefore invalid.\n\nDismissing the appeal,\n\nHELD :(!) (a) Land is defined ins. 3(a) of the Act to include benefits to ari'le out of land, things attached to the earth or permanently fastened to anything attached to the earth. Therefore, land contemplated in s. 49(2)_ of the Act may be land or land or land including building or part of a building. [81B-CJ\n\n(b) The contention that if there is vacant land, s. 49(2) of the Act ha.<i no application is not only a misreading of the decision of the Court in State of Bihar\n\nv. Kundan Singh [1964J 3 S. C. R. 382 but also the relevant Section. [81 Dj.\n\nIn the instant case the contention of the appellant that it was vacant land was also contrary to facts. The material on record shows that there were certain structures on the land, ,[80 H].\n\n(2) If a claim under the third clause of s. 23(J) of the Act is made the requirement of s. 49(2) of: the Act is satisfied. Addition of a claim under the fourth clause of s. 23(1) of the Act makes no difference. [82 BJ.\n\n(3) (a) Subscctions (2) and (3) of s. 49 of the Act indicate that the acquisitios. !or public purpose need not be stated. Section 49'(3) of tbe Act specifically provides that no fresh declaration under ss. 6 to 10 of the Act shall be ne~- sary.\n\nSection 49(2) of the Act implies public purpose inasmuch as the compensation for_ acquisition is payable out of the public land.\n\nSections 4 and 5 of the Act are excluded because of proposal by owner! in case of further acquisition under s. 49(1) ofi the Act and proposal by Government for further acquisition in a case under s. 49(2) of the Act. All that is necessary is that in one H case the owner of the land and in the other the Government must act under\n\ns. 49(1) and 49(2) of the Act, respectively before the award is made. 'fhe public purpose is to prevent people from making exaggerated clain1s.\n\nSection\n\n~9(2) of the Act is subsidiary to public purpose. ~The acquisition is jn aid of that purpose. [83 A-CJ.\n\n(b) Section 49 (2) of the Act does not require that the opinion shall be formed after hearing the person concerned. [83 DJ.\n\n\"\" -.\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal No. 558 of 197(}\n\nFrom the Judgment and Order dated 26th May, 1965 of the Cakutta High Court in Appeal from Original Order No. 260 of 1973.\n\nL. M. Singhvi, 0. C. Mathur, D. N. Mishra and J. B. Dadachanji for the appellant.\n\nNiren De, Attorney General of India, D. N. Mukherjee, G. S.\n\nChatterjee, and Sukumar Basu for respondents Nos. 1 and 4.\n\nNiren De, Attorney General of India, S. K. Dholakia and R. C.\n\nBhatia for respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nRAY, C. J.-This appeal by certificate raises the question as to whether section 49(2) of the Land Acquisition Act hereinafter referred to as the Act has any application to the acquisition of the land in question.\n\nThe premises in question are 2 Gariahat Road now known as 2 Raja Subodh Mullick Road, Calcutta. The total area is approximately 23 bighas. The appellant al!eges that there arc no houses or buildings.\n\nThe Land Acquisition Collector found certain structures occupied by certain persons and other structures and a compound wall and the major portion of the land to be vacant. There is a: big tank covering over 3 bighas of the land.\n\nThe appellant alleges that the land is highly developed and is ideal for building site. The Land Acquisition Collector found the major portion of the land undeveloped and below road level and to. become water-logged during rainy season.\n\nThe appellant denies these allegations.\n\nOut of the total area the State in 1959 acquired 1 bigha, 13 chattack, 43 sq. feet for the State Transport.\n\nThe appellant claimed Rs. 3,50,000 inter alia for severance of the land acquired.\n\nIn the month of September, 1962 the Government communicated to the appellant that the Government agred that the claim put forward by the appellant under the clause \"thirdly of sub-section ( l) of section 23 of the Act\" is unreasonable and excessive.\n\nThe sanction of the Governor was therefor accorded to the acquisition of the entire premises 2, Gariahat Road, Calcutta under section 49(2) of the Act. Between the months of February and September, 1960 notices were issued to acquire a further area of 7 bighas, 4 cottahs, 9 chittacks and 10 sq. feet.\n\nThe premises were acquired.\n\nH An award was made.\n\nThe principal contention of the appellant is that section 49(2) of the Act has no application in the case of acquisition of vacant Janel.\n\nThe appellant contends that the land acquired in the present case was vacant.\n\nThe State contended to the contrary.\n\nThe materials on record support the contention of the State. The appellant submits that\n\n---\"\" )-- -\n\nsection 49(2) of the Act applies only where land with building is A taken. Section 49(2) of the Act is qs follows :-\n\n\"If, in the case of any claim under section 23, sub-section (!), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the appropriate Government is of opinion that the claim B is unreasonable and excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part.\"\n\nLand is defined in section 3 (a) of the Act to include benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Therefore, land contemplated in section 49(2) of the Act may be land or land including bullding or part of a building.\n\nCounsel for the appellant relied on the decision o!f this Court in D State of Bihar v. Kundan Singh & Anr. [1964] 3 S.C.R. 382 anrt extracted the observation at page 394 of the Report that section 49(2) of the Act contemplates cases where land is acquired and it is shown to form part of a house.\n\nIn short, the contention of the appellant is that if there is vacant land section 49(2) of the Act has no application.\n\nThis ts not only misreading the decision but also the relevant section.\n\nIn Kundan Singh'; case (supra) the question for considerati~ was whether the desire of the owner for the acquisition of the entire house under section 49 (!) of the Act should be expressed before the award is made.\n\nJn Kundan Singh's case (supra) the State acquired F a plot of land which consisted of the main house and an outhouse with an open space. The owner of the property was not 'satisfied with the award. The owner contended that other lands and buildings contiguous to the land and building acquired which all belonged to the owner had not been acquired. As a result of partial acquisition the owner alleged loss. The ruling of this Court is that such plea under section 49 of the Act cannot be considered in an enquiry under section 18 of the Act. Section 49(1) of the Act shows that if the owner has any objection to the acquisition of a part of his house it is open to him to withdraw or modify his objection before an award is made under\n\nsec<ion 11 of the' Act. If an objection under section 49(1) of the Act is taken by the owner and the Collector decides to accept the objection then the Collector acquires the whole of the house. If the Collector does not accept the claim the matter is judicially determined under the second proviso to section 49(1) of the Act.\n\nSection 49(2) of the Act states that where on account of the severing of the land to be acquired from his other land, the person interested prefers a claim under the third clause under sectiqn 23 ( 1) of the Act and the Government is of opinion that the claim is unrea-\n\nA sonable or excessive, the Collector may, at any time before the award is made, order the acquisition of the land.\n\nThe appellant submits that the appellant made the claim for compensation under the third and fourth clauses of section 23 (1) of the Act, and, therefore, section 49(2) of the Act has no application. In one of the letters of the appellant dated 25 February, 1960 it is stated that the area of 7 bighas, 4 cottahs, 9 chittaks and 10 sq. feet of front land has been acquired for the purpose of over-bridge at Gariahat Road level crossing including the entire frontage of the said premises as a result of which the remaining portion of the land measuring about 16 bighas of land will be land locked causing heavy damages. severance and injurious affectation. In the writ petition the appellant clajmed damages only in respect of severance. Section 23 ( 1) clause three of >he Act speaks of damage sustained by the person interested at the time 'of the Collector's taking possession of the land by reason af severance of such land from the other land of the owner.\n\nClause four of section 23 (1) of the Act speaks of claim for damage sustained by the person interested at the time of the Collector's taking possession of the land by reason of the acquisition including affecting his ether property, movable or immovable, in any other manner, or his earnings.\n\nTherefore, if a claim under the third clause of section 23(1) of the Act is 'made the requirement of sectiou 49(2) of the Act is satisfied.\n\nAddition of a claim under the fourth clause of section 23 ( 1) of the Act makes no difference.\n\nIn the present case, the land _was .not completely vacant. Even if there is vacaut land section 49(2) ot the Act will be attracted by reason of definition of land.\n\nTo accede to the contention. on behalf of the appellant that section 49.(2) speaks only of acquisition of land abng with a building and not to the case of acquisition of vacant land is to rob the meaning of land under section 49(2) of the Act aud the content of section 49(2) of the Act. Section 49(2) of the Act applies to cases of acquisition of vacant land along with structures.\n\nThe object of section 49(1) of the Act is to give to the owner the option whether he would like part to be acquired. The Government cannot take the other part under section 49 (1) of the Act unless the owner says so.\n\nSection 49(2) of the Act has nothing to do with section 49(1) of the Act.\n\nSection 49(2) of the. Act gives the option to the Government only where the claim under the third clause of section 23 (I) of the Act is excessive.\n\nReference to the third clause of section 23 (I) of the Act makes it clear that the claim under the third clause of section 23 ( 1) is for severance. The Government in such a case of acquisition of the remaining portion of the land under section 49(2) of the Act saves the public exchequer money which otherwise will be the subject matter of a claim for severance.\n\nCounsel on behalf of the appellant contended that the acquisition of the remaining land was not for a public purpose and was, therefore, invalid. It was said that there should hav~ been a fresh declaration of public purpose after the proposed acquisition of the remaining\n\nportion of the land.\n\nThis contention is unacceptable.\n\nSuh-sections\n\n(2) and (3) of section 49 of the Act indicate tbat the acquisition for public purpose need not be stated. Section 49(3) of the Act specifically provides that no fresh declaration under sections 6 to 10 of the Act shall be necessary.\n\nSection 49(2) of the Act implies public purpose inasmuch as the compensation for acquisition is payable out of the public fund. Sections 4 and 5 ot the Act are excluded because of proposal by owner in case of further acquisition under section 49(1) of the Act and proposal by Government for further acquisition in a case under section 49(2) of the Act.\n\nAJI that is necessarv is that in one case the owner of the land and in the other the Government must act under sections 49 ( 1) and 49 ( 2) of the Act respectively before the award is made.\n\nThe public purpose is to prevent people from making exaggerated claims. Section 49(2) of tbe Act is subsidiary to public purpose. The acquisition is for public purpose.\n\nThe subsequent acquisition is in aid of that purpose.\n\nCounsel on behalf of 'the appellant submitted that he was entitled to be heard before the order was made under section 49(2) of the Act.\n\nThis submission is unacceptable. Section 49(2) 6f the Act does not require that the opinion shall be formed after hearing the person concerned.\n\nFor these reasons, the appeal fails and is dismissed. In view of the fact that the High Court directed each party to pay and bear its own cost, there will be no order as to costs.\n\nP.B.R.\n\nAppeal dismissed .", "total_entities": 75, "entities": [{"text": "HARSOOKDAS BALKISSENDAS", "label": "PETITIONER", "start_char": 12, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "HARSOOKDAS BALKISSENDAS", "offset_not_found": false}}, {"text": "THE FIRST LAND ACQUISITION COLLECTOR & ORS", "label": "RESPONDENT", "start_char": 37, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "THE FIRST LAND ACQUISITION COLLECTOR & ORS", "offset_not_found": false}}, {"text": "1975 lA. N. RAY", "label": "JUDGE", "start_char": 91, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER J.", "label": "JUDGE", "start_char": 118, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "V.R. 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{"document_id": "1975_1_84_92_EN", "year": 1975, "text": "PEDDA NARAYANA & ORS.\n\nSTATE OF ANDHRA PRADESH\n\nApril 8, 1975\n\n[N. L. UNTWALIA AND s. MURTAZA FAzAL Au, JJ.J\n\nEvidence-Appreciation f-Onzission of details in First Infonnation and Inquest Report-Effect of-Code of Criminal Procedure (Act 5 of 1898) s ..\n\n174~Scope of. '\n\nf The rst accused borrowed mney f!om tc deceased anO' as the money was\n\n~C:~ rpard the deceased filed a suit against him. .Angered by being drawn into hh.gation, A. 1 to A. 3 and three others came upon the deceased in a jeep\n\nd~1ven by A. 4, and ~· 1 to A. 3 getting down from the jeep stabbed the deceased ; v1th daggers and \"\".h1le the deceased waSi falling down carried hin1 tl\\vay in the 1eep.\n\nThe co1npan; on of the deceased at the time \\vhen the occurrence took place gave the first information to the police. Three days after the incident the dead body was recovered, and inquest was held.\n\nTe four accuse~ were charged with offences of murder andkidnapping, but the tnal ourt acquitted them for the nasons : (i) the First Information did noL contain the overt acts attributed to each of the accused: (ii) details of the\n\nvcrt acts were not mntioned in the Inquest Report and therefore it mu~ be inferred that the eye witnesses did not mention the overt acts to the police; (iii) there was no .reliable. evidence identifying the dead body: and (iv) the motive E \\Vas not sufficient to impel the accused to murder the deceased.\n\nOn appeal the High Court convicted A. 1 to A. 3 for offences under s. 302 read with ss. 34 and 148 and under s. 364 read \\Vith s. 34 I.P.C. A .. 4 was convicted under s. 302 read with s. 149 and under s. 364 read ~:ith s. 34, I.P.C.\n\nDismissing the appeal to this Court of A. 1 to A. 3 und allowing that of\n\nA. 4,\n\nl-IELD : The High Court rightly believed the evidence of the prosecution witnesses and there was no error in its aproach to the case. '[91 A.-BJ.\n\n( 1) The witness who gave the first information nius.t have been extremely perturbed having seen the attack on his companion.\n\nEven so, all the essential details which a first information should contain are there.\n\nThe names of the accused and the circumstances of the murderous assault are mentioned.\n\nShorn of minute detail the broad picture presented by the prosecutioo was mentioned in the first information which was. lodged soon after the occurrence.\n\nJt is neither customary nor necessary to mention every 1ninute detail in the first information. [88 A-C]\n\n(2) The object of the inquest proceedings under s. 174 Cr. P.C. is merely to ascertain whether a person has died under suspicious circumstances or whether it \\Vas a case of unnatural death, and if so, what was the apparent cause of death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances is foreign to the proceeding5.\n\nTherefore, neither in practice nor in law was it necessay for .the police to have mentioned details of all the overt acts of the accused in the inquest report.\n\nFrom such absence of details in the inquest report it as wr.ong. to resme that the witnesses did not mentionthe details to the pOhce dunng 1nvesttgat1on.\n\n[89 C-EJ\n\n(3) The dead body was identifiable nd was .identified by the son of the .deceased, the witness who gave the first information and a co-v11lager. [90 E].\n\n. , ;,\n\n(4) Various persons react to circumstances in different ways and it is difficult to say when a motive would be sufficient for a crime.\n\nMoreover, in vie\\v of the independent testimony of eye witnesses, whom the High Court has believed the question of motive beco:ine academic.\n\n'[90G-H].\n\n(5) This is not a case where two vie, vs are possible.\n\nThe only possible view is that taken by the High Court ano' the High Court rightly reversed the acquittal under s. 417 Cr. P. C. (91 C-D].\n\n6(a) The medical evidence showes that the deceased must have died before the body \\Vas put in the jeep and so the charge of kidnapping fails. [91D-E].\n\n(b) , As regards A. 4 there is no reliable evidence to prove actual complicity in the murder.\n\nHe is a young boy of l 8 engaged as a <lrivcr.\n\nHis name is not mentioned in the first information to the police as haYing taken any part in the assault. [91 H].\n\n(c) Therefore, he could not be convicted for murder. He could be guilty of the offence under s. 201 I. P. C. but he was acquitted of that charge by the trial court. The High Court had not convicted him under that section and no appeal against his acquittal ha~ been filed in this Court and hence he could not be convicted of that offence either. '[92 C-Dl.\n\nCRIMINAL 92 of 1971.\n\nAPPELLATE JuR1sorcTION : 1 Criminal Appeal No.\n\nFrom the Judgment and Order dated the 31st December, 1970 of the Andhra Pradesh High Court in Criminal Appeal No. 868 of 1969.\n\np. Basi Reddy and G. Narayanarao, for the appellants.\n\nP. Rama Reddy and P. P. Rao, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nFAzAL ALI, J.-Appellants A-1 to A-3 have been convicted under\n\ns. 302 read with s. 34 I.P.C. as also under s. 148 I.P.C. They are also convicted under s. 364 read withs. 34 I.P.C. A-1 to A-3 have been F sentenced to imprisonment for life under s. 302 read with s. 34 and A-4 has been awarded the same sentence under s. 302 read withs. 149 I.P.C. Under s. 364 read .,,; th s. 34 the four appellants have been awarded five years rigorous imprisonment each.\n\nIn view of the sentences passed, no separate sentence was, imposed. under ss. 147 and 148 I. P. C.\n\nThe accused had been acqmtted by G the Additional Sessions Judge, Anantpur, in the State of Andhra Pradesh.\n\nOn appeal against acquittal filed by the State before the High Court of Andhra Pradesh, the appeal was anowed and the appellants A-1 to A-4 were convicted and sentenced as mentioned above. Against these convictions, the present appellants have preferred this appeal to this Court.\n\nAs the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Ad- H ditional Sessions Judge, the appeal to the Supreme Court lies even on facts and as a matter of right under s. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) . Act, 1970.\n\nThe prosecution case may conveniently be divided into four sep~ rate parts-Part-I constitutes the immediate motive for the murder\n\n~--...,._\n\n86 SUPRE1'fE COURT REPORTS\n\n[1975] SUPP. S.C.R.\n\nA of the deceased; Part JI relates, to the visit of the deceased to Anantpur\n\n\"here he was shacj_owed and threatened and forll\\S the genesis of the occurrence; Part III consists of the actual murderous assault on the deceased resulting in his death and the last part-Part IV-relates to the recovery of the dead body thre<\\ days after the occurrence. This is rather an unfortunate case where the appellants sought to hit upon B a pre-conceived plan to do away with the life of the deceased animated bv rancour and hatred resulting from the act of the deceased in einbroiling the accused in a litigation over a monetary transaction.\n\nIn order to understand the case put forward by the prosecution it may be neccs'<iry to give briefly a resume of the four stages of the C prosecution case.\n\nPart-I. The story of the prosecution begins with the purchase of a jeep by A-1 and his brother being jeep No. A.P.A. 2781 from one Kana Rama Subbareddi for a consideration of Rs. 6,000/-.\n\nIn order to meet the consideration of the jeep A-1 and his brother had borrowed a sum of Rs. 6,900/- on April 18, 1964 from the deceased\n\nafter executing a promissory note in his favour.\n\nAs this money was not paid by A-1 to the deceased, the deceased brought a suit in the Court of the Subordinate Judge, Anantpur for realisation oj' the amount.\n\nSome time in the year 1969 A-1 filed an Insolvency Petition before the Subordinate Judge showing his debts to the tune of Rs. 1,96,000/-.\n\nThe suit filed by the deceased was posted on February 6, 1969 for evidence to be given by A-1 and this appears to have been the immediate provocation and occasion for planning the murder of the deceased by the appellants.\n\nPart-IT. In view of the fact that the suiC was posted to February 6, 1969 the deceased along with P. W. I-who will hereafter be referred to as Chinna-proceeded to Anantpur on February 5, 1969 and reached there at 8-30 P.M. It is said that while p.w. I Chinna and the deceased were alighting from the bus they saw A-1, A-2 ana A-4 sitting in the jeep near the petrol pump which is situated near the bus-stand.\n\nChinna and the deceased then went to the house of N. Narayana Rao, P.W. 20 who was their counsel and -stayed thew for the night.\n\nOn the next day i.e. February 6, 1969 the suit was adjourned and after the adjournment of the case Chinna and the deceased went to the place where they were staying and on the way some persons with big moustaches appear to have threatened them.\n\nChinna, however, did not take the threat seriously and proceeded to his destination.\n\nPart-III. On the night of February 6, 1969 the deceased and Chinna went to witness a picture called \"Tenali Ramakrishna\" in Raghuveera Talkies and it is said that some of the accused had also followed the deceased and went to see the cinema show.\n\nAfter returning from the picture, while the two persons namely Chinna and the deceased were proceeding south to north and had covered 20 feet from the hotel where they had taken their food, suddenly a jeep came and stopped near the deceased_. According to the prosecution A-1 to A-3\n\n. -\n\n- '\n\n• '\n\ngot down from the jeep along with three other strangers and surrounded A the deceased. Chinna was about one bara away from the deceased.\n\nThereafter A-2 stabbed the deceased with a dagger on l1is stomach and A-1 stabbed him on the leJt side of the chest and when the deceased was about to fall A'3 is said to have stabbed the deceased with a dagger on his left knee.\n\nWhen Chinna P.W. l wanted to intervene he was threatened 'by the three stranger who were armed B with daggers and was pushed aside by tl1osc strangers.\n\nBefore the deceased could fall down on the ground he was put into the jeep and earned away.\n\nPart-IV. On February 9; 1969 P.W. 16 and the Inspector of Tadipatri went to Cherlepalli. for the purpose of investigation where P.W. 16 received information that a dead body was lying near the Railway gate at Taticherla. The :police party , proceeded to that place and found a dead body lying on its back with injuries on the body.\n\nTl;~ body was, however, in a bloated condition.\n\nSubsequently , proceedings for inquest under s. 174 of the Code of Criminal Procedure were taken and after the usual investigation a charge-sheet was sul:>- mitted against the appellants. We might mention here that th.e F.I.R. in the. case was lodged by P.W. 1 Chinna on February 6, 1969 before the Sul:>-Inspeetor of Police, Anantpur Police Station and is Ext. P-1 in the case.\n\nThe learned Additional Sessions Judge after consideration of the evidence produced before him acquiltd the accusd without considering the intrinsic merits o[ the evidence produced before him on purely general grounds anc\\ what he called inherent improbabilities arising out of the case.\n\nThe High Court in appeal against the acquittal of the accused found that the learned Additional Sessions Judge was not at all justified in acquitting the accused and that the reasons given by him were wholly untenable in law and accordingly the High Court reversed the order of acquittal and convicted A-1 to A-4. The acquittal of A-5 wa,, however, upheld by the High Court and we are not concerned with him in this appeal.\n\nThe learned counsel appearing for the appellants tried to support the judgment of the learned Additional Sessions Judge and pointed out a number of circumstances which according to him cast a serious G doubt on the veracity of the prosecution case.\n\nJn the first place, it was argued that th< learned Additional Sessions Judge rightly held\n\ntht as the F.l.R. did not contain the overt acts attributed to each of the accused, the story of the prosecution must be held to be an\n\naftr-thought. Dealing with this aspect of the matter the High Court pemted out that the F .I.R. was lodged soon after the occurrence and there was no occasion for the informant to have mentioned all the H material.Particulars in the F. I. R. which had to be narrated and proved at the tnal.\n\nWe find ourselves m complete agreement with the reasons g, iven by the High. Court. Jn fact we find from the perusal of Ext. Pl tnat all the essential details that th~ F.I.R. should contain are given there. The .names of the accused are clearly mentioned, the circumstances leadmg to -the murderous assault on the deceased Linganna have\n\n10 SC/i5--7\n\nA \\Jcen set out. It has also been mentioned that the accused got down\n\nfrom the jeep along with three strangers and stabbed the deceased and then carried him away in the jeep.\n\nIt is also mentioned that the occurrence had taken place because the deceased had filed a civil suit against A-1 which constituted the motive for the murder. Tims shorn of minutest detail the broad picture presented by the prosecution was undoubtedly revealed in the F.I.R. which was lodged very soon a(tcr the occurrence. In our opinion, it is neither customary nor necessary to mention eveiy minute detail in the F.l.R. Chinna P.W.1 must have been extremely perturbed because the deceased Linganna had been suddenly attacked by a number of assailants and his body wa~ carried away. It is in that state of mental agony that.he was not able c to give further details in the F.I.R. We are, therefore, clearly of the opinion that the reasons given by the learned Additional Sessiom Judge for rejecting the prosecution case are wholly untenable in law.\n\nAnother point taken by the learned Additional Sessions Judge was that in the 'inquest report details of the overt acts committed by th~ various accused have not been mentioned in the relevant column. TI1e D le'1rned Judge in fact has assumed without any legal justification that because the details were not mentioned in the requisite column of the inquest report, therefore, the presumption will be that the eye witnesses did not mention the overt acts in their statements before the police.\n\nTo begin with it seems to us that.the learned Additional Session Jndgc's\n\napproach is legally erroneous. A statement recorded by the police during E the investigation is not at all admissible and the proper procedure 1s\n\nto confront the witnesses with the contradictions when they are examined and then ask the Investigating Officer regarding those contradictions.\n\nThis docs not appear to have done in this case.\n\nFurtmr more, proceedings for inquest under s. 17 4 of the Code of Criminal Procedure have a very limited scope. Section 174 of the Code as it F then stood read as follows :\n\n\"174. Police to enquire and report on suicide. etc.\n\n(1) The officer in charge of a police station or some other police officer spcially empowered by the State Government in that behalf, on receiving information that a person-\n\n(a) has committed suicide; or\n\n(b) has been killed by another, or by an animal, or by machinery, or by an accident; or\n\n\\ c) has died under circumstances raising a rea&onable suspicion that some other person has committed an offence; shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Subdivisional Magistrate, shall proceed to the place where the body of such deceased person is and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation and draw up a report\n\n~ I ,\n\nof the apparent cause of death, describing such wounds, A fractures, bruises and otl1er marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any) such marks appear t<J have been inflicted.\n\n(2) * • * •\n\n( 3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of itS' being so forwarded without risk of such putrefaction on the road as would render such examination useless.\"\n\nA perusal of this provision would clearly show that the object or D the proceedings under s. 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so .what is !he apparent cause of the death. The question regarding the detalls as to bow the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under s. 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows :\n\n\"The learned Sessions Judge had also stated that the dekllls regarding the weapons armed by each of the accused and which accused had attacked o~ which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witness now found recorded under section 161 Cr. P.C. could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column ll(a) shows that Al to A3, A4 and AS with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove away the jeep and death was the result of the injuries inflicted.\n\nThe object of holding any inquest as can be seen from Section 174 Cr.P.C. is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at\n\nthe inquest did not contain those overt-acts and the statements now produced are those of the witnesses. which were taken later.\"\n\nThe High Court has thus rightly explained that the omissions in the inquest report arc not sufficient to put the prosecution out of Court and the learned Additional Sessions Judge was not at all justified in rejecting the prosecution case in view of this alleged i11firmity.\n\nThe karned Additional Sessions Judge was alsd of the opinion that there .was no rehable evidence to identify the dead body of the deceased Linganna and on that ground the prosecution case could be rejected.\n\nTl:is line of reasoning adopted by the Additional Sessions Judge 1s not C borne out by tlie facts.\n\nThe High Court pointed out in their judgment that <there was sufficient evidence before the Court to identify the body of the deceased. It is true that the dead body of tlie deceased was bloated but P.W. 16 the Sub:Jnspector deposed in his evidence that the features of the body were quite clear and visible.\n\nThe photographs of the body were taken by P.W. 19 and on seeing o the photographs the High Court was satisfied that the body was easily\n\nidentifiable. P.W. 1 Chinna who was fully known to the dcceaseil and who had accompanied him to Anantpur and in whose presence the murder took place said that he went to the place where the body was lying and identified the body. The High Court also pointed out that\n\nP.W. 1 said that the belt, M.O. 6 which was usually worn by the de-\n\nE ceased was also found on the dead body, which completely clinches the issue. Although P.W. 1 was cross-examined at very great length ii was not suggested to him that the dead body found was not that of the\n\nt1eceascd. The body of the deceased was also identified by another co-villager and also by the son of the deceased. In these circumstanc.es, therefore, there was abundant evidence to prove the identification of the dead body and the finding of the learned Additional Sessions Judge F is based on a misreading of the evidence on this point.\n\nThe. learned Sessions Judge further held that the motive ascribed to ihe appellants for committing the murder of the deceased was not rnfficient to impel them to plan the murder of the deceased.\n\nThis finding of the learned Sessions Judge is based purely on speculation.\n\nG Various persons react to circumstances in different ways and it is difficult to wc.igh the reaction of the persons in golden scales with absolute computoriscd accuracy. There is no doubt that the deceased had drawn the accused in a long litigation involving thousands of rupees as a result of which he had to attend the Court at Anantpur on various dates.\n\nThe sequence of circumstances under which the deceased was murdered clearly show~ that there could not have been any other motive but the H institution of the suit. The High Court has also pointed out that the prosecution has established good and suflicicnt motive for the murder of the deceased. Futhcr more, in view of the independent testimony of P.Ws 1, 2 and 3 whom the High Court has believed, and we see no reason to differ from the view of the High Court, the question of motive becomes more or less academic. On thi& point also, in our opinion, the learned Additional Sessions Judge has taken an absolutely wrong view.\n\nWe have been taken through the entire evidence of P.W. 1, 2 & 3 who A are independent witnesses and against whom no animus has been established by the accused and we. dd not sec any reawn to disbelieve their evidence.\n\nThe High Court, therefore, rightly believed their evidence in order to accept 'the prosecution case. We do not find any error of law in the approach made by the High Court.\n\nIt was, however, submitted by Mr. Basi Reddy, learned counsel for the appellants tliat this was a case in which another view was also possible on the evidence and, therefore, the High Court ought not to have interfered with the order of acquittal passed by the learned Additional Sessions Judge, as held by this Court in several cases .\n\nAfter going through the evidence and circumstances of the present case, huwever, we arc clearly of the opinion that the ratio of the cas'es decided by this Court is wholly inapplicable to the instant case and, therefore, the contention advanced by the counsel for the appellants in this Court is overruled. This is not at all a case where a second view was possible.\n\nOn the other hand it was a case where the learned Additional Sessions Judge had given untenable reasons andwhere bis approach was no' ouly perverse, but also legally erroneous. In such circumstances, it ca\"-\n\nnot be disputed that the High Court had ample powers to reverse the order of acquittal under s. 417 of the Code of Criminal Procedure.\n\nAs regards the case of A-4, w.e find that it stands on a different footing and there doe9 not appear to be any legal evidence against th[s appellant.\n\nWe arc also satisfied that there is no reliable evidence to prove the charge under s. 364 l.P.C. According to the medical evidence the deceased sustained as many as si.x injuries. The position and the nature of the injuries particularly on the various parts of the body clearly show that they must have been inflicted on the deceased out.- side the jeep .and not when the body was carried in the jeep of A-l.\n\nThe medical evidence also shows that the deceased \"could have died instantly within minutes of the occurrence. On the other hand there is absolutely no evidence to show that any injury was inflicted either wher,\n\nthe deceased was put into the jeep or when be was carried away in the jeep. From these circumstances, therefore, it is manifest that all the\n\nsix injuries must have been caused during the' course of the occurrence on the spot before the body was put into the jeep and in all probability the deceased must have died at the spot. lf this was so, then the charge under s.364 I.P.C. must necessarily fail, because there was no question of kidnapping the deceased for the deceased had died even before he\n\nw.cs kidnapped.\n\nSo far as A-1 to A-4 arc concerned, this question is more or less academic because they have already been convicted by the High Court under s. 302 read with s. 34 and A-4 under s. 302 read with s. 149 T.P.C. As regards A-4 is concerned, we are satisfied that there is no reliable evidence to prove his actual complicity in the murder of the deceased.\n\nThe case of the prosecution is thau A-4 who is a young boy of 18 years was employed as a driver of the jeep after the same was purchased by A-1.\n\nIt is true tha\\ A-4 had taken A-1 to A-3 to the scene of occurrence.\n\nBut this was a part of his duty and tlJat by itself would not show a complicity in the offence of murder which was committed later.\n\nAlthough in the course of the trial the\n\nwitnesses hav() stated that this appellant also tried to take the body in the jeep while he was sitting there or that he had come out of the jeep, this evidence cannot be accepted because it is nowhere mentioned in tne F.I.R. that A-4 had taken any part in the assault on the deceased.\n\nThere is only a reference to the three strangers and A-1 to A-3 and there is no reference to A-4 excepting that he was driving the jeep.\n\nIn these circumstances we are unble to agree thM A-4 had shared the common object of murdering the deceased at any stage.\n\nThe only offence that could have been committed by A-4 was under s. 201 I.P.C. because alter the deceased was put into the jeep he knew fully well that he had been assaulted by the appellants and was being taken away for the purpose of disposal of the dead body.\n\nUnfortunately, however, though A-4 was charged under s. 201 he was acquitted by the learned Additional Sessions Judge and even the High Court has not convicted him under that section. No appeal against his acquittal has been filed in this Court. In these circumstances therefore it is not possible for us to convict him for the first time under s. 201 I.P.C. in the present appeal. For these reasons therefore it follows that A-4, namely, Budekula Kullayappa is entitled to acquittal as his complicity in the actual assault on the deceased has not been proved.\n\nNor has it been proved that he had shared the common object of the crime with others.\n\nThe result is that convictions and sentences passed on all the appellants under s. 364 read with s. 34 I.P.C. are set aside.\n\nThe orders of . conviction and sentence under s. 302 read with s. 34 in so far as A-1\n\nto A-3 are concerned are upheld.\n\nThe appeal of A-4 is allowed and the order of the High Court convicting him under s. 147 and under s. 302 read with s. 149 is set aside and he is acquitted and is directed to be released forthwith. The appeals of A-1 to A-3 are dismissed.\n\nV.P.S.\n\n#~·.\\l.; l'l;,\n\n, Appeals partly allowed", "total_entities": 64, "entities": [{"text": "PEDDA NARAYANA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "PEDDA NARAYANA & ORS", "offset_not_found": false}}, {"text": "STATE OF ANDHRA PRADESH", "label": "RESPONDENT", "start_char": 23, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "N. L. UNTWALIA", "label": "JUDGE", "start_char": 64, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "N.L. 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{"document_id": "1975_1_93_106_EN", "year": 1975, "text": "-~·* ,,.. ..\n\nC.I.T. MADRAS\n\nT. V. SUNDRAM IYENGAR (P) LTD.\n\nApril 9, 1975\n\n[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]\n\nIndian !ncon1e Tax Act, 1922, s. 23 A-Scope of.\n\nUnder Section 23A of the Indian Incon1e Tax Act, 1922, if in respect of any previous year the profits and gains distributed as dividends within the\n\n12 months immediately fol1owing the expiry of that previous year are Jess than the statutory percentage of the total income of that previous year as reduced by the amounts mentioned in els. (a), (b) and (c) and sub-s. (!), the Income Tax Officer shall make an order that the company shall be liable to C pay super-tax at the prescribed rate on the undistributed balance Of the total income of the previous year. According to Explanation 2. statutory percentage means 45 per cent of the industrial profits and 60 per cent of non-industrial profits.\n\nThe explanation further says that the said percentages should be applied separately v.ith refer.ence to the amounts of profits and gains -attributable to the two parts of the company's business as if the said amounts were respectively the total income of the company in relation to each of its parts, the amount of divio\"ends and taxes also being sin1Uarly apportioned for D purpose of sub-s. (!).\n\nIn the present case 45 per cent of the industrial profits comes to Rs. 1.51 lakhs, while 60 per cent of non-industrial profits comes to Rs. 8.43 laths.\n\nThe company, instead of distributing a sum of Rs. 9.94 lakhs by way of dividends distributed Rs. 4.20 lakhs, equally as profits of the industrial and non-industrial activities leaving aside the profit of Rs. 13.21 Jakhs. The income Ta\"'{ Officer aUOcated the aividends declared by the company to the E industrial and non-industrial segments in the same proportion as the profits of the two segments bore to the total profits of the company and levied additional super-tax under s. 23A on the entire undistributed balance of the total profits available for distribution, namely Rs. 13.21 Jakhs.\n\nThe Order was confirn1ed bythe Appellate Assistant Commissioner.\n\nOn appeal, the Appellate Tribunal held that in so far as the profits of the industrial activity \\vere concerned, the company must be deemed to l1ave F distributed by way of dividends out of those profits just so much as would be equal to 45 per cent of such profits and accordin_gly it allocated the dividend out of industrial and non-industrial profits.\n\nOn this allocation it came to the conclusion that the company having declared the statutory dividend on its industrial profits, was not liable to pay additional supertax in so far as these profits were concerned. 1t, however, upheld the levy of additional super-tax on non-industrial profits.\n\nThe High Court confirmed the Tribunal's view.\n\nAllowing the appeal,\n\nHELD : (1) The High Court was in error in holding that the profits of the two parts of the con1pany's business should be treated as if they were the total income of the company for a11 purposes. In taking this view the High Court overlooked the concluding words of Explanation 2 by reason of which the legal fiction has to be ilimited to its duly appointed purpose. [106 D-E].\n\n(2) The High Court and the Tribunal were wrong in holo'ing in favour of the assessee.\n\nWhere a company has a composite bqsiness, the first step is to ascertain the distributable profits of the t\\vo parts separately. For the purpose of finding out the minimum dividend that the company ought to have distributed, the proper statutory percentage as prescribed by Explanation 2 has to be ap~\n\nplied separately to the distributable profits of the two parts, as if the respective profits are the total income of the company in relation to each part of its business. The composite dividend distributed by the company has then to be\n\napp01iioned between the two parts in the same ratio as the respective profits of the two parts bear to the toal profits of the company. [103H-10~B],\n\n(3) (a) Explanation 2 by its express terms requires that for the purpose of sub-s. (1) the amount of dividends must be \"similarly apportioned\". [101 E]\n\n(b) 'fhe word \"similar\" may generally be said to be a \\Vord of a1nbiguous import in the sense that the mere stipulation in a statute that something should be done similarly is insufficient by itself to signify the <legree of similarity with which that thing must be done.\n\nThe \"'ords \"similarly apportioned\" mean apportioned with reference to the amounts of profits and gains attributable to the two parts of the oompanys business.\n\nThe Exphtnation first refers to nn apportionment or splitting up and then provides that the dividends and taxes shall be similarly apportioneO, that is to '>ay, similarly split up.\n\nAccordingly, the words \"similarly apportioned\" have a definite meaning and are not ambiguous. [lOlG-102 C].\n\n(c) The' word \"apportion'' is used in Explanation 2 in the sense of \"split up\" so that \"similarly apportioned\" means \"similarly split up\". fhe divioends have, therefore, to be split up similarly, i.e. in the same ratio as lhc industrial and non-industrial profits bear to each other after the total profit is split up in two parts, indnst'fial and non-industrial. [102D-E]\n\n(d) An assignment as a proper portion of the dividends \\vould mean an assignment in the same or similar ratio as the respective profits of the two segments bear to the total profits of the company. Jt is not open to the company to split up and apportion the diviocnds to the profits of the two segments in such a manner as it finds convenient or thin ks fit. 'fhe company's freedom to apportion the dividends is conditioned by the ratio \\vhich the profits of the two segments bear to the total profits. [102 F-GJ\n\nThe sun1 of Rs. 4.20 Jakhs has to be split up in the same proportion which the respective profits of the two segments bore to the total profits of the company. There is a short-fall in respect of both the segments and accordingly the company would be liable to pay adoitional super-tax at the rate of 37 per cent on the entire undistributed balance of the distributable profits. [102 H-103 BJ.\n\n(4)(a) The language of s. 23A(l) as also of Explanation 2 is clear and distinct and does not yield to more than one reasonable interpretation~ The fiction created by the Explanation is expressly limited to the purposes of sub-s. (1) and there is no justification for pursuing the fiction to its logical conclusion so as to permit it to operate beyond the limited purpose of sub-s. (1). Under the scheme contained in s. 23A where a company has a composite business it is necessary at the outset to find out the profits attributable to the two parts of its business. The statutory percentages as prescribed by Explanation 2 have then to be applied separately to the profits of the two parts.\n\nBy reason of the fiction created by Explanation 2, the profits of each part have, for this purpose, and for this purpose alone, .to be treated a<; if they were the total income f that part of th~. Company's busi_n.ess.\n\nBy. sub-s.\n\n(1) the company becomes liable to pay add1ttonal super-tax 1f the d1v1a'ends distributed by it are \"less than the statutory percentage of the total income''.\n\nExplanation 2 creates the fiction that for the purpose of sub-s. (1) the income of the respective parts is to be regarded as the total inconle of each part so that the statutory percentages can be applied separately to the income of each part.\n\nThe fiction operates in this limited field and is in terms created for this Iin1ited purpose. [1050-106 B].\n\n(b) The levy of additional super-tax under s.23A(l) is a single levy. The super-tax has to be levied \"on the undistributed balance of the totalincome of the previous year\".\n\nSub-section ( 1) itself clarifies that by these \\\\'Ords is meant \"total income as reduced by the amounts, if anv. referred to in els. (a), (b) or (c) and the dividends actually distributed, rr any.\" Even iE the Income Tax Officer finCls that the apportioned dividend in any part of the company's business is less than the dividend that onght to have been\n\nC.I.T. v. T. V. SUNDRAM (P} LTD.\n\ndeclared by application of the statutory percentage, the additional supe1-tax has to be levied on the whole of the undistributed profits of the company.\n\n[106 B-D].\n\n4RGUMENTS\n\nFor the t1ppella11t :\n\n1. On a true interpretation of Section 23A(l) and Explanation 2 thereto B where the company's profits liable to be distributed as oividcnd are co1nposite consisting of industrial and non-industrial profits, the Income-tax Officer has first to find out profits attributable to industrial activity and profits attributable to non-industrial activity and ascertain the ratios bet\\veen the industrial and non industrial profits to the total Oistributable profit.\n\nBy the fiction created by explanation 2 he has to treat the profits in each section as if they were the total income of that section and apply the statutory percentage to find out the minimum dividend that must be declared by the company.\n\nHe hat C then to dissect the composite dividend declarcO: b~' the company and apportion the same between the dividend relating to industrial profiti and dividend relating to non-ino'ustrial profits in the same ratios as the industrial profits bear to the total distributable profits and non-indu:-.trial profits bear to the total distributable profits. Thereafter, he has to find out \\vhether the dividends so apportioned between the two parts is below the minimum distributable on the application of the statutory percentage.\n\nIf he finds that the declared Oividend apportioned to any part of the business is below the taxable D minimum arrived at by applying the statutory percentage then the Incometax Officer has to levy additional super tax on the entire undistributed profits, that is to say, on the distributable profits minus the total composite dividend -declared by the company.\n\n2. The levy of additional super-tax u/s. 23A(l) is a single levy and is -0n the undistiibuted profits on their entirety and, therefore, where on apportionment of the composite dividend declared by the company the industrial and non-industrial profits, the J ncome-tax Officer finds that the apportioned dividend in any part of the company's business is less than the dividend that\n\nought to have been declared by application of the statutory percentage the Income-tax Officer has to levy additional super-tax on the entire undistributed profits even though in the other sectio11 of the business the declared dividend as apportioned may not be below the minimum that ought to have been distributed by the application of the statutory percentage.\n\nF -3. The fiction created in clause of explanation 2 of Section 23A ( 1) prescribing that the amounts of profits or gains attributable to two parts of company's business should be treated as if they were the total income of the company in relation to each of the parts is only for the purpose of applying the statutory percentage which has to be applied to the total income to find out the dividend liable to be distributed.\n\nThis fiction cannot be extended for the purpose of deeming the profits of each part as total lncon1c for the purpose and levy of additional Sllper-tax as if there were as many G total income as there were parts of business profits.\n\n4. Even on the interpretation put by the High Court and the opinion given by it on the question referred to u'/s. 66(2) of the Income-tax Act\n\n1922. the Income-tax Officer \\Votlld be justifled in levying additional super-ta_~ on the entire distributed profit of Rs. 13,21,174 or atleast on Rs 12 36196 which i.s . the amotnt of non-industinl pr9fits minus the balance f the 'aeclared d1v1dend attnbutable to non 1ndustnal profits i.e. Rs. 14,05.310 n1inns Rs. 2,69,114. ·\n\nFor tl1e respondent\n\nSection 23~ of the Income-tax Act was recast by the II of 1957 with effect from 1-4-1957.\n\nJt is this amended applicable to the cnse under consideration as it relates to the 1957-58.\n\nFinance A.:t section that is assessment year\n\nA The scope of Explanation 2 \\\\'Otlld appear to require the foUo\\\\'ing steps to be taken in order to find out whether s. 23A (I) is applicable in the case of a company whose profits consist partly of industrial activity and partly of non-industrial activity.\n\n(i) Ascertain the profits relating to each part separately when the company's business consists of partly in manufacture and partly of other activities.\n\n(ii) Treat the profit of each part as the total income: of the company (in order to find out whether the dividend distributed is leR<.: than the staulory percentage).\n\n(iii) Apportion the taxes relating to each part and deduct such tax from the profits of that of the company\"s business.\n\nArrive at the balance of income by deducting the amount coverea by item\n\n(3) from the an1ount covered by item (2).\n\n(iv) Apply the statutory percentage of either 45 per cent or 60 per cent on the balance of income arrived at.\n\n(v) Find out whether the dividend distributed and apportioned to each part is less than the statutory percentage.\n\n(vi) If the divioend distributed is less than the statutory percen tage, then on the undistributed balance of income of each part less the taxes specified in subsection (1) and dividend apportioned to this part, additional supertax to be levied at 37 per cent.\n\nThe expression 'similar' is an ambiguous \\Vord.\n\nThe word 'apportion~ means split up.\n\nSo long as the apportionment is made with the desire to act as fairly and justly as possible by all patties no uniform mode of appor tionment is necessary.\n\nIn the light of this the assessee company has appor tioned the dividend in accordance with the law.\n\nThere is no other method of apportionn1ent indicated in the explanation.\n\nSection 23A(l) is not applicable to that party of the company's profits relating to manufacture. If he follow~ the provisions of explanation 2 the Incometax Officer cannot be saiO: to be satisfied that the dividend distributed relating to this part of the company's business is less than the statutory per centage.\n\nThe contention of the Revenue on the other hand is that the dividend should be apportioned in the same proportion in which the industrial profits and nonindustrial profits bear to the total income of the company less the tnxes specified in els. (a), (b) and (c) of s. 23A(l).\n\nG It is undeniable that the \\Vords used in the latter part of the explanation\n\nare ambiguous. They are capable of more meaning than one. The in terpretation contended fqr by the revenue leads to anamolous results. In the circumstances, the construction which favours the assessee and saves it from the penal consequences deserved to be adopted.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1392-93 of 1970.\n\nFrom the j11dgment and order dated the 23rd January, 1969 of the Madras High Court in Tax Cases No. 116 of 1965 and 190 of 1967, Reference No. 48 of 1965 and 72 of 1967.\n\nD. N. Kharkhanis and S. P. Nayar, for the appellant.\n\nS. Swaminathan and S. Gopalakrislman, for respondent.\n\n> -\n\n. !\n\n- '\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-These appeals by certificate granted by the High Court of Madras under section 66A(2) of the Income-tax Act, 1922 arise out of a common judgment dated January 23, 1969 delivered by the High Court in Tax Cases Nos. 116 of 1965 and 190 of 1967. Tax Case No. 116 of 1965 arose out of the reference made by the Income-tax Appellate Tribunal undei; section 66 (1) of the Act while Tax Case No. 190 of 1967 arose out a reference made by the Tribunal in pursuance of an order made by the High Court under section 66(2) of the Act.\n\nThe question which arises for consideration in these appeals is whether under section 23A of the Act, the asscssee-company is liable to pay additional super-tax in respect of any portion of its profits.\n\nSection 23A of the Act of 1922, in so far as material read thus at the relevant time :\n\n\"23A. (1) Where the Income-tax Officer is satisfied that m\n\nrespect of any previous year the profits and gains distributed as dividends by any company within the twelve months immediately following the expiry of that previous year are less than the statutory percentage of the total income of the company of that previous year as reduced by-\n\n( a) the amount of income-tax and super-tax payable by the company in respect of its total income, but excluding the amount of any super-tax payable under this section ;\n\n(b) the amount of any other tax levied under ahy _Jaw for the time being in force on the company by the Government or by a local authority in excess of the amount, if any, which has been allowed in computing the total income ; and\n\n(c) in the case of a banking company, the amount actually transferred to a reserve fund under section 17 of the Banking Companies Act, 1949 ;\n\nthe Income-tax Officer shall. unless he is satisfied that havi.ng regard to the losses incurred by the company in\n\nearlier years or to the smallness of the profits made in the previous year, the payment of a dividend or a larger dividend than that declared would be unreasonable make\n\nan order in wr!tfog that the company shall, apart from the sum determmed as payable by it on the basis of the H assessment under section 23, be liable to pav super-tax at the rate of fifty per cent in the. case of \"a company whose business consists wholly or mainly in the dealing in or holding of investments, and at the rate of thirtyseve_n J?er cent in the case of any other company on the und1stnbutecl balance of the total income of the previous\n\nSU!'REME CQ_URt REPORTS\n\n[1975] SUPP, 'S.C.R.\n\nyear, that is to say, on the total income as rednced by the amounts, if any, referred to in clause (a), clause (b) or clause (c) and the dividends actually distributed, if any.\n\nx x x x x x\n\nx x x x x x x\n\nx x x x x x x\n\nExplanation 2.-For the purposes of this section. statutory percentage means,-\n\n(i) Jn the case of a company whose business consists wholly or ma; nJy in the dealing in or holding of investments l 00%\n\n(ii) Tn the case of an Jndian company whose business consists wholly in the manufacture or processing of goods or in mining or in the generation or distribution of electricity or any other from of power 4 5 %\n\n(iii) In the case of an Indian company a part only of whose business consists in ny of the activities specified in\n\n~ clause (ii)-\n\n(a) ,; n relation to the said part of the company's business 45%\n\n(b) i'n relation to the remaining part of the company's business --\n\n(1) if it is a comp111y which satisfies the conditions specified rn sub-clause (a) of clause (iv)\n\n(2) in any other case\n\nthe said percontages being applied separately wit11 reference to the amounts of profits and gains attributable to tile two parts of the company's business aforesaid as if the said amounts were respectively the total income of the company in relation to each of its parts. the amount of dividends and taxes also being similarly apportioned for the purposes of sub-sPction ti).\n\nx x x x x x\n\n90%\n\n60%\n\nFor the assessment year 1957-58 relevant to the previous year ended December 31, 1956 the company was assessed to additional super-tax under the aforesaid provision. The business of the company consists partly in the manufacture or process111g of goods and partly.\n\n' -\n\nof an activity of a non-industrial nature.\n\nOut of a total income A. of Rs. 37,98,774 the profits of the company available for distri?ution came to Rs. 17,41,814 out of which Rs. 3,36,504 represented mdnstrial profits and Rs. 14,05,310 represented non-industrial profits. The company distributed by way of dividends a sum of Rs. 4.20,640 only clai111ing that the dividend was declared equally out of the profits of the industrial and non-industrial activities. Thus, the profits B which were available for distribution but which were not distributed came to Rs. 13,21,174.\n\nThe Income-tax Officer, while making the assessment, allocated the dividends declared by the company to the industrial and nonindustrial segments in the same proportion as the profits of the two C segments bOre to the total profits of the company. By tbis method, out of the total dividend of Rs. 4,20,640 declared by the company, a sum of Rs. 81,264 was treated as dividends declared out of industrial profits while a sum of Rs. 3,39,376 was treated as dividends declared out of non-industrial profits. Holding that under section 23A, the company was liable to distribute by way of dividends a sum D of Rs. 1,51,426 out of industrial profits and a sum of Rs. 8,43,186 out of non-industrial profits. the Income-tax Officer levied additional super-tax on the entirety of the undistributed balance of the total income, that is to say, on Rs. 13,21,174.\n\nThe Appellate Assistant Commissioner having rejected the appeal, E the company carried the matter in a further appeal to the Income-tax Appellate Tribunal, Madras Bench, contending that it had declared dividends utilising the industrial and non-industrial profits equally and since the dividends thus declared out of industrial .profits exceeded the statuory percentage of the minimum distributable dividend as provided in section 23A, the levy, of additional super-tax on the indus- F trial profits was unjustified. On the other hand, it was submitted on behalf of ; he Department of section 23A, to be apportioned in the same for the purposes of section 23A. to be apportioned in the same ratio in which the profits themselves were apportioned between industrial and non-industrial activities. The Tribunal rejected the method canvassed by the Department as \"a Rule of thumb;' but then it also rejected the m\"thod adopted by the company of allocating the declared G dividend half and half to the profits of the two segments.\n\nHaving rejected both the methods, the Tribunal held that in so far as profits of the industrial activity were concerned, the conipany must be deemed to have distributed by way of dividends out of those profits just so much, neither more nor less, as would be equal to 45 per cent of such profits.\n\nAccordingly, the Tribunal allocated a sum of Rs. 1,51,426 as dividends out of industrial profits and the balance, H namely, Rs. 2,69,214 as dividends out of non-industrial profits.\n\nOn this allocation the Tribunal came to the conclusion that the company, having declared . the statutory dividend on its industrial profits, was not liable to pay additional super-tax in so far as those profits were concerned.\n\nIt, however, upheld the levy of additional super-tax on non-industrial profits.\n\nUnder section 66 (1) of the Act, the Tribunal referred the following question for the opinion of the High Court :\n\n(1) \"Whether on the facts and in the circumstances of the case, Tribunal was right in holding tbat the assessee company was not liable Jo the additional super-tax under sec. 23A in respect of the assessee's industrial profits for the assessment year\n\n1957-58\".\n\nUnder section 66(2) of the Act the Tribunal referred to tbe High Court the following question :\n\n(2) \"Whether on the facts and in ihe circumstances of the case, the Tribunal is right in holding that additional super- . tax is not lcviable under sec. 23A of the Act, in respect of any portion of the profits of the assessee company for the a, ssessment year 1957-58.\"\n\nThe second question on which the High Court called for a reference may seem to suggest that under the judgment of the Tribunal the Company was held not liable to pay additional super-tax in respect of any portion of its profits. Tha, t is not so. The Tribunal held that the Company was not liable to pay additional super-tax on its industrial profits but was liable to pay it on non-industrial profits.\n\nThe High Court confirmed the Tribunal's view. It held that there was no justific;\\tion in Explanation 2 for the apportionment of dividends in the ratio which the industrial profits bear to non-industrial profits, that it was open to the assessee to apportion the dividends in such a way as to conform to the requirements of section 23A in respect of one of the two segments of its business and that the profits of the other segment only would attract the incidence of aPditional super-tax.\n\nThe High Court demonstrated the absurdity of the contrary view witb the help of a hypothetical illustration.\n\nWe are concerned in this appeal with the true construction ot section 23A as recast by Finance Act 2 of 1957.\n\nThe section, in so far as relevant, is extracted above.\n\nIt has no application to companies in which the public are substantially interested. The section provides for levy of additional super-tax at 50 per cent in the G case of a company whose business consists wholly or mainly in tbe dealing in or holding of investments and at 37 per cent in the case of any other company.\n\nThe additional super-tax is leviable if in respect of any previous year the profits and gains distributed as dividends within the 12 months immediately following the expiry of that previous year are Jess than the statutory percentage of the total income of the previous year as reduced by the amounts mentioned H in clauses (a),(b) and (c) of sub-section (1). The additional super-tax, which in the instant case would be 37 per cent, is payable on the undistributed balance of the total income of the previous year.\n\nBy 'undistributed balance of the total income' is meant the total income as reduced by the a, mounts, if any, referred to in clauses (a),\n\n(b) and ( c) of sub-section ( 1) and the dividends actually distributed, if any.\n\n- '\n\nBy ; Explanation 2, 'statutory percentage' means for the present A purpose, 45 per cent of inddstrial profits and .60 per cent of nonindustrial profits. These percentages ha, ve to be applied separately to the profits of the two segments as if those profits Were respectively the total income of the company in relation to each segment of its business. The dividends and taxes have also to be 'similarly apportioned', for the purposes of sub-section (1).\n\nTwo questions arise for decision : (1) Whether the dividends distributed by the Company have to be apportioned as between .the profits of the industrial and non-industrial segments of its bu&incss\n\nin the same proportion as the respective profits bear to the total profits of the Company; and (2) Whether, if on apportionment, the d.ividend .apportionable to one of the two segments is found to be less than C the statutory percentage in respect of that segment, the additional super-tax is Jeviable on the entire balance of the Company's undis~\n\ntributed profits or whet]ler it is leviahle on the balance of undistributed' profits of that segment only in respect of which the short-fall has occurred. The second question may not strictly arise if on the first question it is found that the dividend apportiom\\ble to the two seg- D ments is less than the statutory percentage in respect of both the\n\negments. AU the same, it would be necessary to examine that qµestion also as the High Court has, held that the liability to pay the add!tiolllll super-tax must be restricted to the undistributed profits of that segment only, in respect of which the default has occurred.\n\nOn the first question, the language of Explanation 2 is clear apd admits of no doubt or difficulty. It requires by its express terms that for the purposes of sub-section (1), the amount of dividends must be \"similarly apportioned\".\n\nBut,, counsel for the respondent urged that since the Explanation does not refer to any apportionment at all, the words \"similarly apportioned\" cannot be ascribed any rational meaning and it would therefore be open to the company to apportion the dividends 50 : 50 to the profits of the two segments.\n\nRelying on \"Words and Phrases Legally Defined\" by Saunders, Vol.\n\nV, p. 79 where it is stated that the word 'similar' is an ambiguous word, it was submitted that the benefit of an ambiguity in a taxing statute must go to the assessee and accordingly, the company would be free to make a convenient apportionment of dividends so as to attract the least incidence of the additional super'tax. Counsel also relied on Burrow's \"Words and Phrases'', Vol. I, p. 217, where it is said that so long as the 11pportionment is made with the desire to act as fairly and justly as possible by all parties, no uniform mode of apportionment is necessary.\n\nThe word 'similar' may be said to be a word of ambiguous import in the sense that the mere stipulation in a statute that something H should be done similarly is insufficient by itself to signify the degree\n\nof similarity with which that thing must be done. A thing can be done similarly without its being a slavish copy of the model. But Expl, anation 2 indicates with meticulous particularity, how similarly dividends and taxes must be apportioned, When it SaJ\"ll that they mnst be \"similarly apportioned\", the reference obviously is to the apportionment which is\n\nSUPREME COURT REPORTS [1975) SUPP. s.c.J.t.\n\nspoken of earlier in the Expla, nation. After specifying what particular percentages shall constitute the statutory percentage for the purposes of section 23A, Explanation 2 provides that the said percentages shall be applied separately \"with reference to the amounts of profits and gains attributable to the two parts of the company's business.\" The words \"similarly apportioned\" which thereafter occur in the Explanation mean apportioned \"with reference to the amounts of profits and gains attributable to the two parts of the company's business\". Thus, the Expl, a, nation first refers to an apportiawmcnt or splitting up and then provides that the dividends and taxes shall be similarly apportioned, that is to say, similarly split up. Accordingly, the words 'similarly apportioned\" convey a definite meaning and are not ambiguous.\n\nIt is urged that the division of total profits of a company into industrial and non-industrial profits cannot be the result of any apportionment properly. so-ca11ed but must conform to the company's books of account and therefore, Explanation 2 ca, nnot be said to refer to any apportionment before speaking of the dividends and taxes being \"similarly apportioned''.\n\nThis argument reads too much in the word 'apportioned'. That word is used in !Expl11;11ation 2 in the sense of 'split up', so that 'similarly apportioned' means simply 'similarly split-up'. The dividends have therefore to be split up similarly, that is, in the same ratio as to industrial and non-industrial profits bear to each other after the total profit is split up in two parts, industrial and non-industrial.\n\nAccording to Burrow's Words and Phrases Vol. I. p. 217, to 'apportion' means 'to split up'.\n\nIt is therefore impossible to accept the respondent's contention that though Explanation 2 requires that dividends should be similarly apportioned, it would be open to the company to make any convenient division of the dividends distributed by it.\n\nAccording to the Shorter Oxford English Dictionary, 3rd Ed., Vol. l, p. 87, to 'apportion' is 'to assign as a proper portion'.\n\nAn assignment as a proper portion of the dividends would mean an assignment in the same or similar ratio as the respective profits of the two segments bear to the total profits of the company.\n\nIr is thus not open to the company to split up and apportion the dividends to the profits of the two segments in such manner as it finds convenient or thinks fit.\n\nThe company's freedom to apportion the dividends is conditioned by the ratio which the profits of the two segments bear to the total profits.\n\nThe total distributable profits of the company came to Rs. 17,41 ,814 out of which the industrial profits are Rs. 3,36,504 and the non-industrial profits are Rs. 14,05.310. Forty-five per cent of the industrial profits comes to Rs. 1,51,426 while 60 per cent of the non-industrial profits comes to Rs. 8,43,186. The company therefore ought to have disfribnted a sum of Rs. 9.94,612 by way of dividends whereas it distributed a sum of Rs. 4,20,640 only. This sum of Rs. 4,20,640 has to be split up in the same proportion which\n\n' . -\n\n• ..\n\n• \"\n\n. \"'\n\nthe respective profits of the two segments bear to the total profits of A the company.\n\nThat is to ay, a sum of Rs. 81,264 from out of the total dividends distributed is apportionable to the industrial profits while a sum of Rs. 3,39,376 is_ apportionable to the non-industrial profits. There is thus a short-fall in respect of both the segments and accordingly the company would be liable to pay the additional supertax at the rate of 37 per cent on the entire undistributed balance of B distributable profits.\n\nThe hypothetical illustration which was cited before the Incometax Officer and which is relied upon by the High Court may at the highest, if its fundamental premise is true, show that the interpretation canvassed by the Revenue may conceivably work out injustice.\n\nBut if the language of the statute is clear and unambiguous, and if two interpretations are not reasonably possible, it would be wrong to discard the plain meaning of the words used in order to meet a possible injustice.\n\nBesides, the illustration only assumes an injustice\n\nand therefore its fundamental premise is wrong.\n\nThe distributable profits of the hypothetical company are said to be Rs. 1,00,000 out D of which Rs. 30,000 are industrial and Rs. 70,000 non-industrial profits. Applying the statutory percentage of 45 and 60 per cent respectively, the company must distribute by way of dividends Rs. 13,500 plus Rs. 42,000, that is, Rs. 55,500. The High Court says that even if the company distributes Rs. 55,500 by way of dividends, apflertioning Rs. 13,500 to industrial profits and Rs. 42,000 to nonindustrial profits, it would violate section 23A because, if the sum of Rs. 55,500 is to be apportioned in the same ratio which the profits of the two segments bear, a sum of Rs. 16,650 will be apportionable to industrial profits and Rs. 38,850 to non-industrial profits.\n\nThe fallacy of this illustration consists in its overlooking that if the compny is liable to distribute Rs. 55,500 by way of dividend& and it does distribute that sum, there is no violation of section 23A. That section applies only if \"profits and gains distributed as dividends .... are less than the statutory percentage of the total income .... as reduced .... \"\n\nIf the dividends have to be apportioned in the ratio of profits of\n\nthe two segments, the taxes have also to be similarly apportioned for Explanation 2 speaks of \"the amount of dividends and taxes also G being similarly apportioned\".\n\nA \"similar\" apportionment of taxes, it is urged by the respondent, may in practice lead to impossible and unreal situations since the taxes on the profits of the two segments ma.y be unequal as in the case of a newly established industrial undertaking which, in respect of its industrial income, may enjoy a tax concession.\n\nThere is no merit in this contention. The method specified in section 23A has to be worked out according to its scheme and 1t H is no answer 10 the obligation to apportion the dividends and taxes, that taxes levied on the profits of the two segments are unequal or are leviable on a different basis.\n\nThµs, the High Court and the Tribunal were wrong in holdmg in favour of the assessee on the first of the two questions which we have framed for consideration.\n\nWhere a company has a composite\n\n10 SC/75-8\n\n~---\n\nA business, as for example industrial and non-industrial business, the\n\n- first step is to ascertain the distributable profits of the' two parts separately: For the purpose of finding out the minimum divided that the company ought to 'have distributed, the proper statutory percentage as prescribed by Explanation 2 has to be applied separately to the dis\n\ntributable profits of the two parts, as if the respective profits arc the total income of the company in relation to each part of its business.\n\nThe composite dividend distributed by the company has then to be apportioned between the two parts in the same ratio as the respective profits of the two parts bear to the total profits of the company.\n\n_ We have shown that in the instant case the dividend apportionable between the two parts of the company's business is less than the statutory percentage in respect of both the parts. T!\"!c High Court, like the Tribunal, gave to. the company the choice to allocate the dividend suitably to the two parts and held on such allocation that since the default had occurred in respect of the profits of the nonindustrial part only, the company would be liable to pay the additional super-tax on the undistributed balance of the non-industrial profits .only.\n\nThe second question which we propose to consider, though it does not arise on our findings, is whether the company is liable to pay additional super-tax on the undistributed balance of non-industrial profits only or whether it is liable to pay the additional super-tax on the entire undistributed balance of its distributable profits.\n\nWe have heard a full argument on this question and if we did not decide it the view of the High Court is likely to cause misunderstanding.\n\nAs observed by Chagla C- J_ in Sir Kasturchand Ltd. v'. Commissioner of Income-tax, Bombay City,(') section 23A was enacted in terrorem against private companies. The object of the section .is to prevent evasion of super-tax by the shareholders of a company in which the public are not substantially interested. The shareholders of a private company could avoid the high incidence of super-tax by allowing the profits of the company to accumulate in its hands so that the accumulated profits could be distributed eventually ia the form of bonus shares which are not assessable as income in their hands.\n\nG In considering whether the company is liable to pay additional super-tax on the entire balance of distributable profits, it has to be borne in mind that section 23A is clearly penal in nature ; for, in the the circumstances mentioned therein, if a private company fails to distribute by way of _dividends the statutory percentage of its distribntable profits, it becomes liable to pay, apart from the sum determined as payable by it on the basis of the assessn1ent under section 23, H super-tax at 50 per cent or 37 per cent as the ease may be, on the undistributed balance of its distributable profits.\n\nIn the first place, this provision being penal, the burden wonld lie on the revenue to prove that the conditions laid down by the section are satisfied.( 2)\n\n(I} 17 I. T. R. 493, ot 495 and 496. (2) Commissioner of Incometax, West Bengal v. Gangad/rar Banerjee & Co.\n\n(p} Ltd., 57 LT.R. 176, 184.\n\n. -\n\n• .. • •\n\nSecondly, penal statutes have t<l._ be construed strictly in the sense that A if there is a reasonable interpretation which will avoid the penalty, that interpretation ought to be adopted : \"When the legislature imposes a penalty, the words imposing it must be clear and distinct\".(')\n\nJt is contended on behalf of the respondent that the language of section 23A (1) read with Explanation 2 is ambiguous and therefore B the court ought to adopt the interpretation which favours the assessee, more particularly because the relevant provisions provide for the imposition of a penalty. In this behalf, learned counsel for the respondent relied strongly on the provision contained in Explanation 2 by which the statutory percentages are required to be applied separately with reference to the amounts of profits and gains attributable to the C two parts of the company's business, \"as if the said amounts were respectively the total income of the company in relation to each of its parts\". It is urged that the fiction created by Explanation 2 must be given its full effect and that it must be carried to its' logical conclusion.\n\nAs the distributable profits of the two parts are to be deemed to be the total income of the company in relation to each of those parts, the penalty, according to the respondent, can be im- D posed on that part of the income only in respect of which the default has occurred.\n\nIt is impossible to accept this contention. If two interpretations of\n\nE the relevant provisions were reasonably possible, we would have readily accepted that interpretation which favours the assessee.\n\nBut the language of sub-section ( 1) of section 23A as also of Explanation 2 is clear and distinct and does not yield to more than one reasonable interpretation.\n\nSub-section (1) provides that if the dividends distributed by a company are less than the statutory percentage of the \"total income\" of the company as reduced by the amounts mentioned In clauses (a), (b) and (c), the Income-tax Officer shall make an F order that the company shall be liable to pay additional super-tax at the prescribed rates \"on the undistributed balance of the total income of the previous year'', that is to say on the total income as reduced by the amounts referred to in clauses (a), (b) and (c) and the diyidends actually distributed. Explanation 2 clarifies what is meant by \"statutory percentage\" and provides that the prescribed percentages should _be appl_ied separately with reference to the amounts of profits\n\nnd _gams attnbutable to the two parts of the company's business, as 1f the said .!_!mounts were respectively the total income of the company in reltion to eac~ of its parts, ...... for the purposes of sub-section ( 1) .\n\nThe fictlon created by the Explanation is thus\n\nexpessly li1!1ited to the purposes of sub-section (1) and there is no 1us!Ificat10n. for_ pursuing the fiction to its logical conclusion so a, s to p7nmt 1t to operate beyond the limited purpose of sub-sectlon (1). Under the scheme contained in section\n\n23A where a company has a compsite business it is necessary at th~ outset to find out the profits attnbutable to the two parts of its busi-\n\n(I) Willis v, Thorp (1875) L.R. 10 Q.B. 383, 386, See also Craic> n Statute\n\nLaw, Sixth Ed., P.' 529-530.\n\n~---\"'-\n\nSUPREME COURT ~EPORTS (1975] SUPP, S.C.R.\n\nA ness. The statutory percentages a prescribed by Explanation 2 have then to be applied separately to the profits of the two parts. By reason of the fiction created by Explanation 2 the profits of each part have for this purpose, and this purpose alone, to be treated as if they were the total income of that part of the company's business.\n\nBy sub-section 1, the company becomes liable to pay additional super-tax if the dividends distributed by it are \"less than the statutory percentage of the total income\". Explanation 2 creates the fiction that B\n\nfor the purposes of sub-section 1, the income of the respective parts is to be regarded as the total income of each part so that the statutory percentages can be applied separately to the income of each part.\n\nThe fiction operates in this limited field and is in terms created for this limited purpose.\n\nThe levy of additional super-tax under section 23A (1) is a single levy. The supr-tax has to be levied \"on the undistributed balance of the total income of the previous year\". Sub-section (1) itself clarifies that by these words is meant \"total income as reduced by the amounts, if any, referred to in clause (a), clause (b) or clause (c) and the dividends actually distributed, if any\".\n\nThe additional super-tax has therefore to be levied on the entire undistributed balance of the net income of the company.\n\nIn other words, even if the Income-tax Officer finds that the apportioned dividend in any part of the company's business is less than the dividend that ought to have been declared by application of the statutory percentage, the additional superta::r has to be levied on the whole of the undistributed profits of the company. The High Court was therefore in error in holding that the profits of the two parts of the company's business should be treated\n\nas if they were the total income of the company for all purpo•es. In taking this view, the High Court overlooked the concluding words of Explanation 2 by reason of which the legal fiction has to be limited to its duly appointed purpose.\n\nIn the result we set aside the order of the High Court and allow the appeal with costs.\n\nP.B.R.\n\nAppeal allowed.\n\n' --", "total_entities": 55, "entities": [{"text": "C.I.T. MADRAS", "label": "PETITIONER", "start_char": 14, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "C. I. T. MADRAS", "offset_not_found": false}}, {"text": "T. V. SUNDRAM IYENGAR (P) LTD", "label": "RESPONDENT", "start_char": 29, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "T. V. SUNDRAM IYENGAR (P) LTD", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 77, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "R. S. 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{"document_id": "1975_1_9_17_EN", "year": 1975, "text": "M/S. SABLE WAGHIRE & CO. & OTHERS\n\nUNION OF INDIA & OTHERS\n\nMarch 21, 1975\n\n(K\"K. MATHEW, V. R. KRISHNA !YER AND P. K. GOSWAMI, JJ.]\n\nEmblems and Narnes (Prevention of Inzproper Use) Act, 1950-Legislative conipetence of Parliament-Sanctity of na1nes and emblen1s of international a11d\n\nnational entities-Act, if covered by , Entries 49 and 91 of List l or by Entry i 26 of List Tl of Schedule Vil of the' Constitution.\n\nE1nblen1s and Na1nes (Prevention of Improper use) Act, 1950, Sections 3, 4 t;1nd 8-Regulation of use of e1nblen1s and ruunes_:.\"Clzltatrapati Shivaji'\", if could be used as trade narne-Provisions, if suffer from the vice of excessive delegation of legislative power-Petitioner's right under Article 19(1)(f) and {g), if violated.\n\nThe petitioners Nos. 2 to 5 in Writ Petition No. 37 of 1970 are the D sole partners of petitioner No. 1 which is a registered partnership firm carrying OJ). the business of manufacturing, marketing and selling bid.is under the pictorial representation , and the trade name \"Chhatrapati Shivaji Bidi\".\n\nThe firm is the sole proprietor of the Registered Trade Mark No. 12549 in respect of the pictorial representation of the picture of \"Chhatrapati Shivaji\" and of the Registered Trade Mark No. 12550 in respect of the trade name \"Chhatrapati\n\nShivaji\" registered in the Registry of Trade Marks, Bomba~. The petitioner in Wr.it Petition No. 38 of 1970 supporting the petitioners in Writ Petition E No. 37 of 1970 has submitted the additional petition claiming the same re!iefs. The petitioner in \\Vrit Petition No. 38 of 1970 (the company) has ,.iso been impleaded as respondent no. 4 in Writ Petition No. 37 of 1970. By a declaration dated November 25, 1938, filed with the Registrar of Assurances at Bombay, petitioner no. 2 obtained protection for the user of the said pictorial representation of \"Chhatrapati Shivaji\" and for the use of the said trade name -as the exclusive proprietor thereof.\n\nIn due course under an agreement dated June 29, 1967, the firm while retaining exclusive proprietory tights in respect F of the Registered Trade Marks Nos. 12549 and 12550 gave exclusive right of\n\nUBer thereof to the company for valuable consideration.\n\nBy a notification No. S0/1020 dated March 16, 1968, issued by the Central Government under section 8 of the Emblems and Names (Prevention of Improper Use) Act, 1950,\n\nand published in the Gazette of India on March 23, 1968, in item No,. 9A in the Schedule to the Act after the words \"pictorial representation of'', the \\vords \"Chharapati Shivaji Maharaj or\" were inserted.\n\nOn the representation made by the petitioners, the Government ailowed the petitioners to use the G existing Trade Marks with the name and the pictorial representation of Chhatrapati Shivaji till May 31, 1969.\n\nThe Joint Registrar of Trade Marks (Respondent No. 3) by Notice No. PR/ 1951 dated October 16, 1969, informed the firm that the use and registration of the name and the pictorial representation of \"Chhatrapati Shivaji Maharaj\"\n\nis prohibited by virtue of section 3 and 4 of the impugned Act and the registration of the aforesaid Trade Marks Nos. 12549 and 12550 offended H 1he provisions of section 11 of the Trade and Merchandise Marks Act 19.58 read with section 32(b) of the said Act, and, therefore, proposed o recttfy the Register by expunging therefrom the said Trade Marks unde~ sect!on. 56(4) of the said Act.\n\nThe Registrar called upon the firm to submit ob1ections tf any.\n\nThe petitioners applied for extension of t!me. to show case before th~ Rerristrar and ultimately moved these Writ apphcattons ch.a1leng1ng the constttut'fonal validity of the Act and in particular of sections 3, 4 and 8 of the\n\ni\\ct as well as of. the Notification of the Central Government dated March 16,\n\nA 1968.\n\nThey have also prayed for quashing the Notice of the Registrar dated October 16, 1969.\n\nA rule nisi was obtained on March 2, 1970, with interim stay preventing the Goverrunent from enforcing the provisioris of the Act. ·\n\nIt was contended for the petitioners : (1) The Act is void for want or legislative competence: (ii) Sections 3, 4 and 8 of the Act suffer from the vice of excessive delegation of legislative power; (iii) The Act has become unv.'orkable because no rules have been framed under section 9 of the Act; aud (iv) 'fhe Notification under section 8 was not published in the name of the President and was issued by the Under Secretary who was not authorised to do so.\n\nRejecting the contentions and dismissing. the \\Vrit Petitions :\n\nHELD : (i) Entry 49 of' List I may \\Vell supply the coverage for the Union legislative field so far as the Act is concerned. Trade marks, designs and nierchandise marks may legitimately take in matters relating to their abuses and improper uses.\n\nEven otherwis.e the residuary entn 97 of List I is of v1ide amplitude to take care of the particular suhjP-ct matter of legislation, namely, prevention of improper use of certain en1blems and names for professional and/or commercial purposes.\n\n[14G]\n\n(ii) The scheme disclosed in the provisions of the Act read with the preamble, and the Objects and Reasons rr.ake it clear that there was imperative necessity for regulating the use of certain emblems and names.\n\nThe fact that only improper use Of the names and emblems is prohibited itself provides guidance.\n\nThe original entries in the Schedule would also point to the nature and character of the names, emblems and entities.\n\nIt is not possible for the Parliament to envisage the possibility of improper use of all names and emblems as tin1e goes on. Nol\\ is it possible to enumerate in the Schedule an exhaustive list of all the names, emblems and entities. ction 8, therefore, makes provision for empowering the Central Government td add to or alter the Schectnle.\n\nIn the nature of things, there is no abdication of legislative function by Parlian1ent in delegating its po\\ver under section 8 in favour of the Central Government which will be the appropriate authority to consider from time to time as to the ilems to be included in or omitted from the Schedule in the light of knowledge and experience gathered from the nook and corner of the entire country.\n\nThere is, therefore. no excessi\\'C delegation of legislative power by PaiJiament in favour of the Central Government.\n\n[16A-B]\n\nThe petitioners' right to trade in bidis is not at all interfered with by the legislation. Section 3 in terms provides for enabling the affected persons to vdjust their business or affairs inasmucli as the Central Government can pennit some time to alter their emblems, designs, etc. to carry on with their trade.\n\nIndeed in the present case the petitioners on their own application obtained an extension of time presumably under section 3 of the Act and, therefore. cannot complain on that score.\n\nThere is built-in safeguard in section 3 itself for mitigating any hardship to persons. or any rigour of the law. The provisions arc accordingly regulatory in nature and even. if at all. they impose only reasonable restrictions on the exercise of the petitioners' right under Article 19(1)(f) and (g )..\n\nSection 4 is a consequential provision and validly co-exists with section 3. [16FG]\n\n(iii) From the scheme and machinery of the Act there is nothing to indicate that absence of rules will make the Act unworkable. [16G-H}\n\n(iv) The Notification is not an executive order but is .a piece of subordinate legislation made by the Central Government under section 8 of the Act.\n\nIt was duly published in the Gazette of India over the signature of the Under Secretary who was authorised for the purpose.\n\nTherefore, the question of violation of Article 77 does not arise. J17A] ORIGINAL JURISDICTION : Writ Petitions Nos. 37 and 38 of 1970.\n\nPetition under Art. 32 of the Constitution of India.\n\nB. D. Bal, J. V. Deshpande, 0. C. Mathur and D. N. Mishra, for the petitioners.\n\nL. 'N. Sinha, Solicitor General of India, G. L. SanRhi and Girish Chandra, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.-The petitioners Nos. 2 to 5 in Writ Petition No. 37 of 1970 are the sole: partners of petitioner No. 1 which is a registered partnership firm (briefly the firm) carrying on the business of manufacturing, marketing and selling bidis under the pictorial representation and the trade name \"Chhatrapati Shivaji Bidi\". The firm is the sole proprietor of the Registered Trade Mark No; 12549 in respect C of the pictorial representation of the picture of \"Chhatrapati Shivaji\"\n\nand of the Registered Trade Mark No. 12550 in respect of the trade name \"Chhatrapati Shivaji\" registered in the Registry of Trade Marks, Bombay: The petitioner in Writ. Petition No. 38 of 1970 supporting the petitioners in Writ Petition No. 37 of 1970 ha.s submitted the additional petition claiming the same reliefs.\n\nJn fact the petitioner D in Writ Petition No. 38 of 1970 (briefly the company) has also been impleaded as respondent No. 4 in Writ Petition No. 37 of 1970.\n\nAccording to the petitioners the business of manufacturing bidis accoording to special formll_lae and processes and of marketing and selling them under the pictorial representation of \"Chhatrapati Shivaji\" E and under the trade name \"Chhatrapati Shivaji\" was first started in about the year 1928 by one Raghunath Ramchandra Sable, the father of petitioners 2 and 4. It is stated that Raghunath Ramchandra Sable\n\nadopted the said pictorial representation and the said trade name in response to a call of the then popular leaders to adopt the name of Chhatrapati Shivaii. in relation to aU articles designed for public use F or consumption with a view to popularise and keep before the public\n\neye the image of the national hero, Chhatrapati Shivaji. By a declaration dated November 25, 1938, filed with the Registrar of Assurances at Bombay, petitioner No. 2 obtained protection for the user of the said pictorial representation of \"Chhatrapati Shivaji\" and for the use of the said trade name as the exclusive proprietor thereof. In due course under an agreement dated June 29, 1967, the firm while retaining G exclusive proprietary rights in respect of the Registered Trade Marks Nos. 12549 and 12550 gave exclusive right of user thereof to the company for valuable consideration. It is said that the bidi business developed on a very vast and extensive scale and' the sale of bidis marketed and sold under the pictorial representation of \"Chhatrapati .\n\nShivaji\" and the words \"Chhatrapati Shivaji\" associated therewith came to over Rs. 2 crores. The business also spread to different States.\n\nTroubk started when by a Notificatiori No. S0/1020 dated March 16, 1968. issued by the Central Government under section 8 of the Emblems and Names (Prevention of Improper Use) Act 1950 (br!efly the Act) and published in the Gazette of India on Mrch 23 1968, in item No. 9A in the Schedule to the Act after the word;\n\nA \"pictorial representation of', the words \"Chhatrapati Shivaji Maharaj or\" were inserted.\n\nWe have, therefore, to turn our attention to the\n\nAct. I\n\nThe long title of the Act is The Emblems and Names (Prevention 0f Improper Use) Act, 1950.\n\nThe preamble shows that it is \"an Act to prevent the improper use of certain emblems and names for professional and commercial purposes\". The Act extends to the whole of India and also applies to citizens of India outside India. It was brought into force from September I, 1950.\n\nSection 3 which is the most important section reads as under :\n\nProhibition of Improper use of certain emblems and names.\n\n3. \"Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorised in this behalf by the Central Government\".\n\nSection 4 prohibits registration of ccrlain companies, etc. and 1s as follows 4( I). \"Notwithstanding anyt]1ing contained in any law for the time being in force, no competent authority shall,- ( a) register any company, firm or other body of persons which bears any name, or\n\n(b) register a trade mark or design which bears any emblem or name, or\n\n(c) grant a patent in respect of any invention which bears a title containing any emblem or name;\n\n(2)\n\nif the use of such name or emblem is in contravention of section 3.\n\nIf any question arises before a competent autl1onty whether any emblem is an emblem specified iii the Schedule or a colourable imitation thereof, the competent authority may refer the question to the Central Government, and the decision of the Central Government thereon shall be final.\n\nSection 5 which imposes penalty for contravention of section 3 of the Act runs as follows :-\n\n' 5. \";\\ny person who contravenes the provisions of section 3 shall be punishable with fine which may extend to five hundred rupees''.\n\n. s. WAGHIRB & co. v. UNION (Goswami, J.)\n\nSection 8 reads as under :-\n\n!· Power of the Central Government to amend the Schedule.\n\n8. \"The Central Government may, by notification in the Official Gazette, add to or alter the Schedule, and any such addition or alteration shall have effect as if it had B been made by this Act\".\n\nSection 9 empowers the Central Government to make rules to carry out the purposes of the Act.\n\nOriginally the Schedule atta_ched to the Act bad only three items, namely,-\n\n(!) The name, emblem or official seal of the United Nations C Organization;\n\n(2) The name, emblem or official seal of the World Health Organization; and (3). The Indian National Flag.\n\nBut by various notifications of the Central Government in the course D of several years the Schedule now contains 17 items of which we are now concerned only with item No. 9A which as amended by the impugned Notification dated March 16, 1968, stands as under :-\n\n9A. \"The name or pictorial representation of Chhatrapati\n\nShivaji Maharaj or Mahatma Gandhi or the Prime E Minister of India (except the pictorial use thereof on calendars where only the name of the manufacturers and printers of the calendars are given and the calendars are not used for advertising goods).\"\n\nIt is, therefore, clear that under section 3 read with the Schedule F as amended the petitioners will not be able to use for the purpose of their trade or business the particular Trade Marks containing the name ot emblem of Chhatrapati Shivaji.\n\nThe petitioners represented to the Government of India in the Commerce Department about the hardship caused to them and . requested for extension of time upto March 31, 1972 for continuing G to the use the said Trade Marks. The Government allowed the petitioners time to use the existing Trade Marks with the name and the pictorial representation !Jf Chhatrapati Shivaji till May 31, 1969. After the expiry of _the aforesaid date no further extension of time was granted.\n\nThe Joint Registrar of Trade Marks (Respondent No. 3) by Notice No. PR/2951 dated October 16, 1969, informed the firm that H the use and registration of the name and the pictorial representation of \"Chhatrapati Shivaji Maharaj\" is prohibited by virtue of sections 3 and 4 of the impugned Act and the registration of the aforesaid Trade Marks Nos. 12549 and 1~550 offended the provisions of section 11 of the Trade and Merchandise Marks Act 1958 read with section 32(b) erthe said Act and, therefore, proposed to rectify the Register by\n\n~--\n\nexpunging therefrom the said Trade Marks under section 56( 4) of the said Act.\n\nThe Registrar called upon the firm to submit objections if any.\n\nThe petitioners applied for extension of time to show cause before the Registrar and ultimately moved these Writ applications challenging the constitutional validity of the Act and in particular oi sections 3, 4 and 8 of the Act as well as of the Notification of the Central Government dated March 16, 1968.\n\nThey have also prayed for quashing the Notice of the Registrar dated October 16,\n\n1969. A rule nisi was obbned on March 2, 1970, with interim stay preventing the Government from enforcing the provisions of the Act.\n\nMr. Bal, learned counsel for the petitioners, submits that the Act is void for want of legislative competence of the Parliament.\n\nAccording to him the subject matter of the legislation relates to \"trade and commerce'\" and, therefore, falls squarely within entry No. 26 of List II of the Seventh Schedule to the Constitution. Hence the Parlia- ment is not competent to make the law in question.\n\nOn the other band, the learned Solicitor General, contends that the pith and sub- D stance of the legislation as gathered from the preamble, the marginal note of section 3 and the illustrations furnished by -the Schedule is the preservation of sanctity of the names and emblems of international and national entities, and not \"Trade and commerce lvithin the State\".\n\nHence the residuary entry 97 of List I will be attracted. Alternatively, be submits the legislation is closer to entry No. 49 \"Patents, inventions, designs, copyright, trade marks and merchandise marks\" in List N0. I of the Seventh Schedule.\n\nIn considering the question of competency of legislation and, for the matter of that, in interpreting the entries in the Lists of the Seventh Schedule a broad and liberal approach has been a well-settled rule of the Court. The subject matter of the legislation is also to be gathered from the totality of the provisions of the Act read with the preamble and the Schedule. So read it is clear that the Act does not concern itself directly or even substantially with trade or commerce.\n\nEntry 49 of List I may well supply the coverage for the Union legislative field so far as the Act is concerned. Trade marks, designs .\n\nG and merchandise marks may legitimately take in matters relating to their abuses and improper uses.\n\nEven otherwise the residuary entry 97 of List I is of wide amplitude to take care of the particular subject matter of legislation, namely, prevention of improper use of certain emblems and names for professional and/ or commercial purposes.\n\nThe objection on the score of legislative incompetency of Parliament is. therefore, devoid of merit.\n\nH Next attack is upon sections 3, 4 and 8 of the Act. It is contended that sections 3, 4 and 8 cqnfer unguided, uncana!ised and arbitrary power on the Ce?tral Governmnt t~\": exercise of which is capble o1 leading to discnmma!Ion and 1mpos11Ion of unreasonable restnct10ns on the fundamental rights of the citizens under articles 14 and\n\n19(1)(f) and (g) of the Constitution. It is emphasised that there is no guideline in the Act for exercise of power. There is, therefore, the vice of excessive delegation of legislative power, says counsel.\n\nLet us, therefore, have a background of the promulgation of the Act. The Statement of Objects and Reasons will make the position clear and may be quoted in exlenso :\n\n\"The General Assembly of the United Nation Organisation recommended in 1946 that members of United Nations should take necessary legislative or other appropriate measures to prevent the use, without proper authority, and in particular for commercial purposes, of the emblem, . the official seal and the name of the United Nations and of the abbreviations of that name.\n\nA similar recommendation .has since been received also from the World Health Organisation for prevention Qf the use of its name (and abbreviations), emblem and official seal.\n\nInstances have also come to light of the use in India (and abroad) of the Indian National Flag and emblem and of the names or pictorial representations of Mahatma Gandhi and other national leaders, for commercial and trade purposes and in a manner likely to offend the sentiments of the people .• The provisions of the Indian Trade Marks Act, 1940, Indian Patents and Designs Act, 1911, Indian Merchandise Marks Act, 1889, and the Indian Companies Act, 1913, are not adequate to prevent these abuses._ The Bill seeks to prevent the improper use Qf these names, emblems, etc., for the purpose of trade, business; calling, profession, patent or design, and to impcse a penalty for misuse of emblems, etc., specified in the Schedule and empowers the Central Government to make additions and amendments in the Schedule as and when necessary\". 'What is in a name' may not always be innocent.\n\nLogically, proper names are not connotative but have often gathered a content, a halo, around them sometimes or for all times to come.\n\nNational or international significance gets attached to certain , names or institutions over the years or ages and then they belong to the nation or to nations.\n\nHuman sentiments and often a deep sense of religiosity pervade through and provide a sacred mantle as it were to the nomenclature. Jn order to arouse national sentiments everywhere invocation of \"Chhatrapati Shivaji\" in manifold ways in the era of struggle fot independence of. our country is now, hy turn of history, replaced by an arent worship of the proud hentage by a grateful nation.\n\nLaw reflectmg the nallonal consciousness, therefore, forbids ordinary commercial use of the sacred name by individuals in their own interest as opposed to national interest.\n\nWe take it that the scheme disclosed in the provisions of the Act read with the preamble, and the Objects and Reasons make it clear that there was imperative necessity for regulating the use of\n\ncertain emblemi and names.\n\nThe fact that only improper use of the names and emblems is prohibited. itself provides guidance.\n\nThe original entries in the Schedule would also point to the nature and character of the names, emblems and entities. It is not possible for the 'Parliament to envisage the possibility of improper use of all names and emblems as time goes on.\n\nNor is it possible to enumerate in the Schedule an exhaustive list of all the names, emblems and entities.\n\nSection 8, therefore, makes provision for empowering the Central Government to add to or alter the Schedule. In the nature of things, there is no abdication of legislative function by Parliament in delegating its power under section 8 in favour of the Central Government which will be the appropriate authority to consider from time to time as to the items to be included in or omitted from the Schedule in the light of knowledge and experience gathered from the nook and corner of the eutire country. There is, therefore, no excessive delegation of legislative power by Parliament in favour of the Central Government.\n\nFrom the Objects and Reasons, the preamble and the Provisions of the Act with the built-in limitations in section 3 taken with the Schedule, a D policy is clearly discernible and there is sufficient guidance therein to enable the Central Government to exercise its power under the Act.\n\nThe relevant matters mentioned above are sufficiently informative of the policy of the law to rob the efficacy of an argument on the score of scantiness in the Act. The impugned N otiJication dated March 16, 1968 of the Central Government under section 8 cannot, therefore, be\n\ninvalid. The objection on the score of Article 14 is of no avail.\n\nThere is also no merit in the contention that section 3 and 4 violate the provisions of Article 19 (1) (f) and (g) of the Constitution. The petitioners' right tµ trade in bidis is not at all interfered with by the legislation. Section 3 in terms provides for enabling the affected persons to adjust their business or affairs inasmuch as the Central Government ca permit some time to alter their emblems, designs, etc. to carry on with their trade. Indeed in the present case the petitioners on their own application obtained an extension of time presumably under section 3 of the Act and, therefore, cannot complain on that score. Thre is built-in safeguard in section 3 itself for mitigating any hardship to persons or any rigour of the Iaw. The provisions are accordingly regulatory in nature and even, if at all, impose only reasonable restrictions on the exercise of the petitioners' right under Article 19 ( l) ( f) and (g) . Section 4 is a consequential provision and validly co-exists with sectio11 3.\n\nIt is also contended by the petitioners that no rules have been .framed under section 9 of the Act which make the same unworkable.\n\nWe are not impressed by this argument. From the scheme and machi- H nery of the Act there is nothing to indicate tbat absence of rules will make the Act unworkable. The submission is devoid of substance.\n\nLastly it was submitted that the Notification under section 8 was not published in the name of the President and was issued by the Under Secretary who was not authorised to do so. The Notification is not an executive order but is a piece of subordinate legislation\n\nmade by the Central Government under section 8 of the Act. It was A duly published in the Gazette of India over the signature of the t l!nder Secretary who was authorised for the purpose. The question of violation Qf Article 77 d, oes not arise.\n\nSince the Act and the impugned provisions are constitutionally valid, objection to the Notice of the Joint Registrar dated October B: 16, 1969, is also of no avail.\n\nIn the result the petitions are dismissed but there will be no order as to costs.\n\nPetitions dismissed\n\nV.M.K.", "total_entities": 75, "entities": [{"text": "M/S. SABLE WAGHIRE & CO. & OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "M/S. SABLE WAGHIRE & CO. & OTHERS", "offset_not_found": false}}, {"text": "UNION OF INDIA & OTHERS", "label": "RESPONDENT", "start_char": 35, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & OTHERS", "offset_not_found": false}}, {"text": "K\"K. 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may well supply the coverage for the Union legislative field so far as the Act"}}, {"text": "provisions of the Indian Trade Marks Act, 1940", "label": "STATUTE", "start_char": 19997, "end_char": 20043, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Patents and Designs Act, 1911", "label": "STATUTE", "start_char": 20045, "end_char": 20081, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Merchandise Marks Act, 1889", "label": "STATUTE", "start_char": 20083, "end_char": 20117, "source": "regex", "metadata": {}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 20127, "end_char": 20153, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 8", "label": "PROVISION", "start_char": 22122, "end_char": 22131, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 22347, "end_char": 22356, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 22848, "end_char": 22857, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 23274, "end_char": 23283, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 23346, "end_char": 23356, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 3 and 4", "label": "PROVISION", "start_char": 23420, "end_char": 23435, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 23462, "end_char": 23472, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 23601, "end_char": 23610, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 23937, "end_char": 23946, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 24035, "end_char": 24044, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 24274, "end_char": 24284, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 24305, "end_char": 24314, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 24462, "end_char": 24471, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 24773, "end_char": 24782, "source": "regex", "metadata": {"linked_statute_text": "From the scheme and machi- H nery of the Act there is nothing to indicate tbat absence of rules will make the Act", "statute": "From the scheme and machi- H nery of the Act there is nothing to indicate tbat absence of rules will make the Act"}}, {"text": "section 8", "label": "PROVISION", "start_char": 25024, "end_char": 25033, "source": "regex", "metadata": {"linked_statute_text": "From the scheme and machi- H nery of the Act there is nothing to indicate tbat absence of rules will make the Act", "statute": "From the scheme and machi- H nery of the Act there is nothing to indicate tbat absence of rules will make the Act"}}, {"text": "Article 77", "label": "PROVISION", "start_char": 25204, "end_char": 25214, "source": "regex", "metadata": {"linked_statute_text": "From the scheme and machi- H nery of the Act there is nothing to indicate tbat absence of rules will make the Act", "statute": "From the scheme and machi- H nery of the Act there is nothing to indicate tbat absence of rules will make the Act"}}]}